ABO EL ATTA -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 179 (4 December 2025)

[Y]ou do have a prior criminal record consisting of repeated driving offences in circumstances where you were not entitled to do so. These offences demonstrate to me a lack of regard for the law on your part and a sense of entitlement. These features are also present in your offending on the night of this offence.

Your prior criminal record does not, however, aggravate the seriousness of your offending but it does demonstrate that you are not entitled to the leniency on the ground of being a first offender or that committing an offence is an uncharacteristic aberration. Your record means that I need to impose a sentence which is firm enough to deter you from offending in this way in the future and to protect the public from further offending (ts 44). (emphasis added)

1. Accordingly, the sentencing judge was under the factual misapprehension that the traffic offences occurred before the sexual offending. This is evident in the sentencing judge finding that the appellant was not entitled to leniency on the ground of being a first offender. Counsel for the State accepted, correctly in my view, that this was an error on the part of the sentencing judge (appeal ts 29, 32; see also the respondent's written submissions par 25). The relevant issue was whether it was a material error of the kind complained of in the appellant's grounds of appeal.
2. The joint reasons reproduce grounds 1 and 1A. Ground 1 requires the appellant to establish appellable error on the basis that the sentencing judge ought to have found that the appellant was of 'otherwise good character'. Counsel for the appellant accepted and contended as much at the appeal hearing (appeal ts 6 ‑ 8, 13, 17). When, in the course of argument, it was suggested that this pitched the appeal at an unnecessarily high level given the accepted factual error on the part of the sentencing judge, counsel for the appellant sought and obtained leave to pursue ground 1A as a further ground of appeal (appeal ts 7, 15 ‑ 16).
3. Ground 1A, in terms, focuses on the sentencing judge's factual misapprehension that the traffic offences predated the sexual offending. However, ground 1A as developed at the appeal hearing embraced the further argument that the traffic offences were of a significantly different nature to the sexual offence; the sexual offence was out of character (the traffic offences occurring after the sexual offending and being of a significantly different character); meaning that in the circumstances the traffic offences did not have the consequence for personal deterrence as found by the sentencing judge (appeal ts 16, 35).
4. Whether an offender is of 'otherwise good character' must be determined having regard to all relevant facts and circumstances: YLT v The State of Western Australia.[1] In this respect, at the time of the sentencing hearing the appellant had a limited criminal record for traffic offences. A limited prior criminal record is not to be assimilated with positive good character: YLT [43]. That said, the relevance of a limited prior criminal record depends upon the facts and circumstances of each case - this includes the nature of the prior criminal record and the nature of the offence for which the offender is to be sentenced: YLT [43].
5. The traffic offences demonstrated that the appellant's attitude to driving while under suspension was at best casual. The appellant evinced an indifference to his legal obligation as to not driving when under suspension. I am not satisfied, however, that the traffic offending was material when sentencing the appellant for the sexual offence. The two categories of offending were of a significantly different nature. The nature of the traffic offending was not such that it could have borne materially on the sexual offending.
6. In terms of ground 1A, the issue is the use that the sentencing judge made of the appellant's limited criminal record for traffic offences. The sentencing judge, acting under the misapprehension that the traffic offences occurred before the sexual offending, stated that the appellant was not entitled to leniency on the ground of being a first offender. This, of itself, demonstrates that the factual error was material. The conclusion that the appellant was not entitled to leniency as a first offender was capable of affecting the sentence imposed by the sentencing judge. It had the capacity to affect the sentencing judge's assessment of the seriousness of the offending.
7. Moreover, the sentencing judge relied on the appellant's prior criminal record in concluding that a sentence should be imposed which was 'firm' enough to deter the appellant from reoffending in this way in the future and to protect the public from such reoffending (ts 44). This was directed to reoffending in respect of an offence of the kind for which the appellant was being sentenced - a sexual offence rather than a traffic offence. In doing so the sentencing judge drew a connection between the traffic offences and the sexual offending. It may be questioned whether the suggested connection, based on a lack of regard for the law and a sense of entitlement, was reasonably open where (as the sentencing judge evidently thought) the traffic offences occurred before the sexual offence. No such connection was reasonably open in circumstances where the traffic offences occurred after the sexual offence.
8. The sentencing judge erred, in my respectful view, in concluding that the appellant's traffic offences increased the necessity for personal deterrence and protection of the public so far as there was a risk of the appellant reoffending by committing a further sexual offence.
9. The error arises in the sentencing judge's implicit reasoning that, having displayed a lack of regard for the law and a sense of entitlement in committing the traffic offences, the appellant then demonstrated the same lack of regard for the law and sense of entitlement in committing the sexual offence - resulting in an increased risk of sexual reoffending that impacted on the necessity for personal deterrence and protection of the public. YLT explains that the relevance of a limited prior criminal record depends on the facts and circumstances of each case. The sentencing judge did not consider the nature of the traffic offences and the nature of the sexual offence for which the appellant was to be sentenced. The two categories of offending were of a significantly different nature. Notwithstanding that the offending was of a significantly different nature, the sentencing judge reasoned, incorrectly in my view, that the traffic offences were relevant to the appellant's predisposition to commit sexual offences of the nature of that for which the appellant fell to be sentenced. That conclusion was not reasonably open when proper consideration is given to the timing and nature of the traffic offences.
10. The materiality of the error is obvious. The sentencing judge stated, in effect, that a firm sentence was to be imposed because the appellant's prior criminal record meant there was a need to deter the appellant and protect the public from reoffending in this way. In the circumstances not only was the error capable of affecting the sentence imposed by the sentencing judge. Based on the sentencing remarks it may be inferred that the error did in fact affect the sentence that was imposed.
11. Ground 1A must be upheld. The appellant should not have been sentenced on the basis that the traffic offences increased the need for personal deterrence and protection of the public. The appeal should be allowed and the appellant resentenced according to law. It is not necessary to determine ground 1 or ground 2. I would refuse leave to appeal on those grounds.

1. I agree with the resentencing proposed by Hall JA and Doyle AJA. Accordingly, while I would limit the grant of leave to appeal to ground 1A, I would otherwise join in the orders proposed in the joint reasons. Insofar as I would join in the order refusing the application to adduce additional evidence I agree with the reasons given by Hall JA and Doyle AJA for refusing that application.

1. The appellant was convicted on his plea of guilty of one count of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA) (Code). At the time of the offence, on or about 30 July 2022, the appellant was 19 years old and the complainant was 15 years old. The maximum penalty is 14 years' imprisonment. The appellant was sentenced to 4 years' immediate imprisonment.
2. At the time of sentencing, the appellant had a minor criminal record as an adult, consisting of three offences of driving a motor vehicle without authority. Those offences were committed on separate occasions between 11 February 2023 and 23 August 2023; that is, after the commission of the sexual offence.
3. The learned sentencing judge took the view that the driving offences demonstrated that the appellant had a lack of regard for the law and a sense of entitlement. He said that these were also features of the sexual offence. He concluded that the prior offences demonstrated that the appellant was not entitled to leniency on the ground of being a first offender. He also said that committing the sexual offence could not be viewed as an uncharacteristic aberration. These findings supported the conclusion that personal deterrence had increased importance in sentencing.
4. The appellant appeals against his sentence on three grounds. The first ground alleges that the learned sentencing judge erred by failing to take into account that the appellant was of 'otherwise good character' (ground 1). The second ground alleges that the sentencing judge erred by mistakenly assuming that the traffic offences pre-dated the sexual offence (ground 1A). The third ground alleges that the sentence is manifestly excessive (ground 2). In oral argument, the appellant refined the focus of the first two grounds, such that the essential issue was identified as whether the sentencing judge erred in finding that the driving offences justified a conclusion that the appellant was not entitled to leniency on the ground of being a first offender or a person of otherwise good character, and that there was a heightened need for personal deterrence.
5. The appellant committed no offences as an adult prior to the sexual offence. He was entitled to be treated as a first offender for the purposes of sentencing. The learned sentencing judge erred by finding that the appellant was not a first offender.
6. In some circumstances, offences that are committed after the instant offence for which an offender is being sentenced, but before the date of sentencing, may be relevant in making an assessment of the risk of future offending and the prospects of rehabilitation. The utility of prior offences for these purposes will usually depend on their similarity with the instant offence. In the present case, the driving offences were of a different character to the instant offence for which the appellant was being sentenced. The driving offences could not logically support a conclusion that there was a heightened need for personal deterrence in respect of the sexual offence. To the contrary, the driving offences were of no significance in sentencing the appellant.
7. In our view, grounds 1 and 1A have been established. The express errors were material because they had the capacity to affect the sentence imposed. In these circumstances, the appeal should be allowed and the appellant resentenced. It is unnecessary to consider ground 2. In our view, having regard to all of the relevant considerations, including the youth of the appellant, the appropriate sentence is one of 3 years 4 months' immediate imprisonment.

1. At the time of the incident, the complainant was 15 years old and the appellant was 19 years old. The complainant was dating the appellant, but only knew him as 'Jerome'.[2]
2. The complainant and the appellant had met through friends and had maintained communication with each other via text messaging and social media. The complainant knew that the appellant was over the age of 18 and, initially, lied to him and said that she was 16. She later told him that she was 15. She did this before the incident.[3]
3. On or about 30 July 2022, the complainant was babysitting for a family friend, at the friend's house in Kalamunda.[4] There were four children to babysit, who ranged from 1 - 7 years of age. At some time prior to the friend leaving the house, the complainant asked if the appellant could come over and 'hang out'.[5] The friend gave permission for this to occur. The friend then left the house at around 7.45 pm.[6]
4. The complainant and the appellant communicated via mobile telephone during the night. The complainant invited the appellant to come over. The appellant then came to the house between 11.00 pm and 12.00 am that night.[7] The complainant was in the living room, where a mattress was set up for her to sleep.
5. The appellant and the complainant were lying on the mattress watching a movie.[8] The appellant began to kiss the complainant. The appellant moved his hands towards the front of the complainant's body and grabbed her vagina over her clothing. The complainant told the appellant to stop.
6. The complainant did not speak loudly, in case she woke up the children she was babysitting.[9] She could not be certain that the appellant heard her, although she said it a number of times. By this stage, any belief that the appellant had as to her consent was, if honest, not reasonably held.
7. The appellant responded by telling the complainant that he was not doing anything.[10] The appellant's position at this time was somewhat over the complainant, but not on top of her. The complainant was turned away from the appellant. He then positioned himself on top of her. As he did this, he pulled her pants down. The appellant used his hands to push her head towards the pillow, as he penetrated the complainant's vagina with his penis.
8. After penetrating the complainant's vagina for some time, the appellant ejaculated and got up from the mattress.[11] He pulled his pants up, told the complainant he was leaving, and walked out the front door. The complainant followed the appellant and saw him off the property. She went back inside and cried. One of the children woke up and came into the living room around five minutes after the appellant had left.[12]
9. The friend returned home in the early hours of 31 July 2022.[13] The complainant spoke to another friend and told her what happened. Later that day, she also told the friend whose house she had been at. The complainant expressed a concern that she might be pregnant. The friend and the complainant discussed what to do, and whether to tell the complainant's father. The complainant did not want to do that, as she feared her father's reaction. The friend assisted the complainant to get the morning-after pill from a chemist. The friend was unable to use her bankcard at the time, so a neighbour agreed to assist in getting the morning-after pill for the complainant to avoid any questions being asked.[14]
10. In late October or early November 2022, the complainant told her father what had occurred. The matter was reported to police by the complainant's father on 2 November 2022.[15] The identity of the offender was unknown at the time, but the complainant and her father sourced the appellant's mobile telephone number and a picture of his vehicle from friends. Police were able to identify the appellant, and the complainant picked him out from a digiboard.[16]
11. The appellant was arrested on 3 February 2023. He participated in an interview with police and admitted knowing the complainant, though he denied the allegation of sexual penetration.[17] He said he met the complainant through a friend of a friend. He met up with her on three or four occasions, with the last time being the babysitting incident. He confirmed that he had gone to see the complainant at the house where she was babysitting. He said that the complainant hugged him when he came in, but when he heard children in the house, it 'turned him off'.[18] He believed the complainant wanted to have sex, but he did not want to. He said that he and the complainant went for a drive in his car. He denied any sexual contact between them. He said that the complainant told him she was 17, but he did not believe her and thought she was 16.[19]

1. The appellant was born on 22 March 2003.[20] He was 19 years old at the time of the offence, and 21 years old when he came to be sentenced.[21] He is the second of seven children born to his parents' union. He was born in Egypt and came to Australia as an infant. There were no adverse childhood incidents, and the appellant remains close to his parents and siblings, who are all practising Muslims.[22]
2. The appellant completed year 12. He enjoyed school and received good grades.[23] He then attended TAFE and received a Certificate III, a Diploma, and then an Advanced Diploma in civil and structural engineering. This led to employment with a Perth business, doing design and drafting work. After working at that firm for 18 months, he commenced fly‑in/fly‑out work. As at the date of sentencing, the appellant had a number of career options available to him, including offers of an electrical apprenticeship, and/or, to continue tertiary study to become a fully qualified engineer.
3. The appellant is a talented soccer player, who has played at a semi‑professional level.[24] He travelled to Switzerland but failed to make the grade in the competition there. He continues to play soccer in his spare time. He informed the pre‑sentence report author that he used to have a large friendship group, but, since the offending, he now only associates with a small, close‑knit group of pro-social friends.
4. At the time of sentencing, the appellant was residing with his parents.[25] He was paying $650 per week in rent to assist his family. He had accumulated savings in the bank and had no current debts.
5. The appellant has no issues with his physical or mental health.[26] He has never used alcohol or illicit substances. The use of those substances is contrary to his religious beliefs.
6. At the time of sentencing, the appellant was single with no dependants.[27] He was previously in a two‑year relationship, but his work commitments as a fly‑in/fly‑out worker resulted in that relationship becoming more of a friendship.[28] However, his partner remains supportive of him.
7. The pre‑sentence report stated that the appellant does not present with any obvious treatment needs.[29] He may, however, benefit from engagement with counselling to address any residual negative attitudes around consent and responsibility‑taking. The report noted that the appellant has already been proactive in making adjustments to his lifestyle, including ceasing his use of social media, through which he met the complainant, and only associating with trusted friends. The report stated that he was less likely to reoffend in a similar manner as he ages. The appellant has a number of protective factors, including his strongly supportive family, though these were in place at the time of his offending.[30]
8. The pre‑sentence report further noted that the appellant had expressed regret and empathy towards the complainant and had made lifestyle changes to reduce his risk of reoffending.[31] It stated that the appellant 'has otherwise led a law‑abiding lifestyle and has a supportive family, stable accommodation and employment, with upcoming opportunities to advance in this area'.[32]
9. The sentencing judge was provided with three character references.[33] These references spoke of the appellant as being well mannered and respectful.[34] They referred to the offending being out of character, and the appellant being remorseful for his actions. They referred to his contribution to the community through volunteering and his strong family support. Letters were also provided from the appellant and his parents,[35] which both referred to his remorse and acceptance of responsibility.

1. The appellant's criminal record as an adult consisted of three driving offences.[36] Those offences were committed on separate days between 11 February 2023 and 23 August 2023.
2. The appellant was charged with driving a vehicle without authority (fines suspended), contrary to s 49(1)(a) and s 49(3)(d) of the Road Traffic Act 1974 (WA) (RTA) on 11 February 2023.[37] He pleaded guilty to that offence and was fined $200 in the Armadale Magistrates Court on 17 March 2023. On 8 May 2023, the appellant was charged with driving a motor vehicle without authority (suspended), contrary to s 49(1)(a) and s 49(3)(c) of the RTA. He pleaded guilty to that offence and was fined $400 in the Perth Magistrates Court on 9 June 2023. His driver's licence was also disqualified for an additional nine months. On 23 August 2023, the appellant was charged with driving a motor vehicle without authority (disqualified), contrary to s 49(1)(a) and s 49(3)(b) of the RTA. He pleaded guilty to that offence and was fined $1,000 in the Perth Magistrates Court on 28 September 2023. His driver's licence was also disqualified for an additional nine months.
3. The appellant's criminal record was before the sentencing judge.[38] The record showed the dates of the commission of the driving offences and the dates on which convictions were recorded, as well as the penalties imposed.[39]

1. The sentencing judge stated that he considered the offence to be serious, but below the mid‑range of offending of this kind.[40] His Honour found that the appellant was aware that the complainant was only 15, and that he continued to sexually assault her despite her protests.[41] He found that the appellant had shown no regard for the wishes of the complainant and was intent only on his own sexual gratification.
2. The sentencing judge identified a number of aggravating factors, those being that[42] the complainant was vulnerable given her age; the complainant trusted the appellant, and he breached that trust; the appellant was older than the complainant; the complainant was home alone, except for some very young children in her care; and the appellant knew that the complainant was effectively alone.
3. The sentencing judge noted the contents of the character references but said that their descriptions of the appellant's character were at odds with the way he behaved on the night and how he later spoke to police in his interview.[43] He did not accept that the appellant's act was a mistake, characterising it as a deliberate and conscious decision.[44]
4. The sentencing judge noted that the appellant was 19 at the time of the offence and 21 at the time of sentencing, and that he had 'no prior offending of this type, although you have some traffic‑related convictions'.[45]
5. After referring to the appellant's personal circumstances, including his education and employment, the sentencing judge returned to the issue of the appellant's criminal record. His Honour said:[46]

As I said, you do have a prior criminal record consisting of repeated driving offences in circumstances where you were not entitled to do so. These offences demonstrate to me a lack of regard for the law on your part and a sense of entitlement. These features are also present in your offending on the night of this offence.

Your prior criminal record does not, however, aggravate the seriousness of your offending but it does demonstrate that you are not entitled to the leniency on the ground of being a first offender or that committing an offence is an uncharacteristic aberration. Your record means that I need to impose a sentence which is firm enough to deter you from offending in this way in the future and to protect the public from further offending.

1. The sentencing judge then turned to mitigating factors, including the plea of guilty. Whilst the plea of guilty was not entered at the first reasonable opportunity, it did occur before any pre‑recording of the complainant's evidence.[47] His Honour allowed a s 9AA discount of 12.5% for the plea.[48]
2. As to remorse, the sentencing judge accepted that the appellant had gained some insight into the effects of his offending upon the complainant but considered that he still lacked a deep understanding of the wrongfulness of his actions.[49] Accordingly, only limited weight was given to remorse.
3. The sentencing judge accepted that the appellant's youth was a significant mitigating factor.[50] He also took into account the steps that the appellant had taken towards his rehabilitation; in particular, changes he had made to his lifestyle. His Honour accepted that there were a number of factors that indicated that the appellant has stability in his life.[51] These included stable accommodation, a supportive family, a supportive partner, and employment prospects. He accepted that, if the appellant continued with his efforts at rehabilitation, he would be at low risk of reoffending.[52]
4. The sentencing judge concluded that the appropriate sentence was one of 4 years' imprisonment. An order was made that the appellant be eligible for parole.

1. The original grounds of appeal were as follows:
   1. A different sentence should have been imposed. There was, with respect, an express error of mixed fact and law by the sentencing judge acting on a mistake of fact and failing to take into account a relevant consideration namely, the mitigating factor that the appellant is of otherwise good character.
      1. The appellant committed three offences of driving without a licence after the date of the individual sexual offence.
      2. The sentencing judge acted on the mistaken assumption that the traffic offences predated the instant offence.
      3. Findings were made in relation to the appellant's character, and the need for personal deterrence, that the appellant was 'not entitled to the leniency on the ground of being a first offender or that committing an offence is an uncharacteristic aberration', and that, '[the appellant's] record means that I need to impose a sentence which is firm enough to deter [the appellant] from offending in this way in the future' (ts 44).
   2. A different sentence should have been imposed. There was an implied error of law by the sentence of 4 years' imprisonment being so excessive as to manifest error having regard to all relevant facts and circumstances, including that the appellant was 19 years of age, his plea of guilty with a discount of 12.5%, and that there were sound prospects for rehabilitation.
2. At the hearing of the appeal, leave was granted for the appellant to add a further ground of appeal. That ground is in the following terms:

1A. A different sentence should have been imposed. The sentencing judge acted on the mistaken assumption that the traffic offences predated the instant offence.

1. In any event, the three traffic offences were each of a significantly different nature to the instant sexual offence. The penalty should properly have been discounted to reflect a mitigating factor of the appellant having a minor criminal record and of the sexual offence being out of character.
2. Both the prosecutor and defence counsel, who each proceeded on the mistaken assumption that the traffic offences predated the instant offence, submitted to the effect that the appellant's antecedents supported a finding of a minor criminal record and a mitigating factor of the sexual offence being out of character, albeit the prosecutor submitted that the fact that the appellant is otherwise of good character 'carries little weight' and 'does not need to be tempered and characterised accordingly'.
3. The relevance of a 'limited' prior criminal record depends on the facts and circumstances of each case, this includes the nature of the prior criminal record and the nature of the offence for which the offender is to be sentenced (YLT [43]). In the present case, the nature of the sexual offence was so different that the penalty should have been discounted to reflect that it was out of character.

1. The appellant has sought to adduce additional evidence on the appeal as to the facts of the driving offences, in order to support a challenge to the sentencing judge's finding that those offences displayed a sense of entitlement and a lack of regard for the law. The additional material includes the statements of material facts for each of the driving offences, the transcripts of the proceedings in the Magistrates Court, and emails and pleas of guilty recording the appellant's explanations for those driving offences. For reasons that will be explained later, it is unnecessary to have regard to the additional evidence.

1. The appellant submits that the sentencing judge erred by omitting to take into account a relevant mitigating factor, namely that the appellant was otherwise of prior good character.[53] This express error is said to be demonstrated by the combination of two things,[54] that the three driving offences were committed after the date of the sexual offence; and, that the sentencing judge incorrectly assumed that the driving offences predated the sexual offence.
2. Further it is submitted that the evidence established, on the balance of probabilities, that the appellant was otherwise of prior good character.[55] There was an absence of prior convictions and this - together with the character references - supports a conclusion that the sexual offence was an isolated, one-off incident, that was an uncharacteristic aberration. This also demonstrated that the appellant was unlikely to reoffend. The sentencing judge's mistaken assumption as to when the driving offences occurred affected the finding regarding the need for personal deterrence.
3. Finally, even if the driving offences were relevant, it is submitted that they were of a significantly different nature and should not have affected the assessment of the appellant's character.

Grounds 1 and 1A - the respondent's submissions

1. The respondent submits that the extent to which good character is a mitigating factor depends on the circumstances.[56] An absence of prior convictions is evidence of good character but may not be sufficient to establish that fact.[57] Whilst the appellant did not have any convictions that predated the sexual offence, it was open to his Honour to have regard to the driving offences as features indicative of the appellant's character.[58]
2. The respondent accepts that the sentencing judge's reference to the appellant not being a first offender was wrong.[59] However, it is submitted that it is not clear that the erroneous reference had a material impact on the sentence imposed. His Honour correctly stated that, for offending of this nature, matters personal to the offender will ordinarily carry less weight. In any event, the finding - that the appellant lacked regard for the law and had a sense of entitlement - would have diminished, if not displaced, any finding of prior good character.[60]

1. An offender's character is a relevant sentencing consideration. If an offender is of otherwise prior good character, this is a mitigating factor which must be taken into account.[61] The weight to be given to prior good character will vary according to the circumstances.
2. An offence is not aggravated by the fact that the offender has a criminal record or that a previous sentence has not achieved the purpose for which it was imposed.[62] However, the existence of a criminal record will often mean that an offender cannot benefit from the mitigating factor of being of otherwise prior good character. Furthermore, if the criminal record shows that the appellant has committed similar offences, this may, in some circumstances, justify a conclusion that there is an increased need for personal deterrence and protection of the community.
3. In YLT v The State of Western Australia,[63] this court considered whether there had been an error in failing to treat an offender as a person of prior good character. The offender was convicted of possession of methylamphetamine with intent to sell or supply. He had only one conviction prior to the drug offence, for driving without authority.[64] However, he had four other convictions that occurred after the drug offence and prior to being sentenced. Two of those offences arose on the same day as the drug offence, being a conviction for possession of drug paraphernalia and a conviction for driving a vehicle with a proscribed illicit drug in his blood. The other offences were careless driving and breach of a family violence restraining order. Significantly, in addition to the criminal record, the appellant had an admitted history of illicit drug use.
4. The court in YLT concluded that there had been no error by the sentencing judge. In doing so, the court said:[65]

It is true that, at the sentencing hearing, the prosecutor acknowledged that the appellant did not have a 'previous history of similar offending' and that there was mitigation in the appellant's prior record.

However, although the absence of previous convictions is ordinarily regarded, for sentencing purposes, as evidence of good character, that circumstance does not necessarily establish that the offender is 'of otherwise good character'. Whether the offender is 'of otherwise good character' must be determined having regard to all relevant facts and circumstances.

A 'limited' prior criminal record is not to be assimilated with positive good character. The existence of positive good character is always a mitigating factor because it indicates, generally, that there may be a lesser need for personal deterrence than is required where an offender has a prior criminal record. Also, positive good character may indicate that efforts directed to the offender's rehabilitation are likely to be successful. The relevance of a 'limited' prior criminal record depends upon the facts and circumstances of each case, including the nature of the prior criminal record and the nature of the offence for which the offender is to be sentenced. (original emphasis)

1. The sentencing judge's reference to the appellant not being a first offender indicates that his Honour was of the mistaken view that the driving offences predated the instant offence. That was clearly an error. The three driving offences were all committed after the instant offence. At the time the instant offence was committed, the appellant was a first offender. However, that error, standing alone, may not have been material. Prior good character is usually afforded little weight in respect of offences of this nature.
2. The real issue in this case is not that the appellant was not treated as a person of 'otherwise good character'. Rather, the issue is that the sentencing judge used the driving offences to draw adverse conclusions regarding the appellant's character, and that there was an increased need for personal deterrence.
3. As the sentencing judge properly noted, prior offences are not an aggravating factor. They can, however, be relevant in other ways. The existence of a criminal record may deprive an offender of the mitigating factor of prior good character. More significantly, in the circumstances of this case, prior offending may indicate a disposition to commit offences, or show that previous sentences for similar conduct have been ineffective, and, thus, increase the need for personal deterrence. This course of reasoning will only be available where there is some clear similarity between the past offending and the instant offence. The commission of driving offences, even if they are repeated over a short time, will usually say nothing about an offender's disposition to commit an offence of a sexual nature.
4. In the present case, the information before the sentencing judge showed that the appellant had committed three driving offences within a six-month period. They were all offences of driving without authority, to which the appellant had pleaded guilty. For each of these offences he had been fined, and for the latter two, he was ordered to be disqualified from driving for a period. As serious as driving without authority can be, this could only be described as a minor criminal record. It is not a record that supports a conclusion that the appellant has a disregard for the law generally, or that he has a sense of entitlement that increases his risk of offending generally.
5. With respect, it was not reasonably open for the sentencing judge to draw the conclusions that he did from the criminal record. It was not open to conclude that a sense of entitlement, or a disregard for the law generally, was established by the driving offences. Furthermore, and more importantly, it was not open to conclude that the driving offences were relevant in assessing the circumstances of the sexual offence. The sentencing judge erred by taking the driving offences into account, and should not have used them to conclude that there was an increased need for personal deterrence.
6. It is unnecessary to have regard to the additional material that the appellant seeks to adduce. Grounds 1 and 1A assert express errors by the sentencing judge, not a miscarriage of justice. An express error must be determined on the material before the sentencing judge. In any event there is no need to refer to additional material given the conclusions reached in the previous paragraph. For these reasons we would refuse the application to adduce additional evidence regarding the driving offences.
7. The only remaining question is whether the error was material. An error will be material if it is capable of affecting the sentence imposed by the sentencing judge. An error is capable of affecting a sentence if, amongst other things, the nature or degree of the error has the capacity to affect the sentencing judge's assessment of the seriousness of the offence having regard to the factors which he or she must take into account when sentencing. Where material express error is demonstrated - enlivening an appeal court's jurisdiction to intervene - the court does not assess whether and to what extent the error influenced the sentencing outcome. The duty of the appeal court in these circumstances is to exercise the sentencing discretion afresh.[66]
8. In this case, the error in the way in which the sentencing judge used the criminal record was material because it affected the sentencing judge's assessment of the seriousness of the offence and the significance of personal deterrence. The error had, therefore, the capacity to affect the sentence imposed.
9. For these reasons, we would grant leave to appeal and allow the appeal on grounds 1 and 1A, set aside the sentence imposed by the sentencing judge, and resentence the appellant.
10. In these circumstances, it is unnecessary to deal with ground 2.

1. This court has all the relevant information necessary to resentence the appellant. The facts and personal circumstances of the appellant have been set out earlier in these reasons. The appellant has also provided an affidavit setting out matters that have occurred since he was sentenced.[67]
2. Since being imprisoned, the appellant has continued his efforts towards rehabilitation. He has applied for programs, and been given a responsible position within the prison. His prospects of rehabilitation remain strong. He continues to have the support of his family. Counsel for the appellant informed the court that the offer of an electrical apprenticeship upon the appellant's release from prison remains open.
3. Like the sentencing judge, we would allow a discount for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) of 12.5%.
4. A significant mitigating factor in this case was the appellant's youth. He was just over the age of 19 at the time of the offence. The significance of youth as a mitigating factor was addressed by this court in Miorada v The State of Western Australia.[68] Young offenders are often impulsive, lack judgment, and may not be a suitable vehicle for general deterrence. They are often more capable of rehabilitation, and society is often better served by facilitating those efforts. In the appellant's case, his prospects of rehabilitation are good and the risk of reoffending is low.
5. The offending was nonetheless serious and deserving of a sentence of imprisonment. The impact on the complainant was significant and there was a risk of pregnancy. The appellant has shown only qualified remorse.
6. In all of the circumstances, in our view, the appropriate sentence is one of 3 years 4 months' imprisonment.

1. Leave to appeal on grounds 1 and 1A is granted.
2. Leave to appeal on ground 2 is refused.
3. The application to adduce additional evidence dated 27 October 2025 is refused.
4. The appeal is allowed.
5. The sentence of 4 years' imprisonment is set aside and in lieu thereof, the appellant be sentenced to 3 years 4 months' immediate imprisonment, backdated to commence on 28 February 2025, and the appellant is eligible for parole.

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

[1] YLT v The State of Western Australia [2020] WASCA 217 [42].

[22] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2.

[23] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2.

[24] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2; ts 44.

[25] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2.

[26] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2; ts 44.

[27] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2.

[28] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2.

[29] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2.

[30] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 2.

[31] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 3.

[32] Pre-sentence report of Mousa Bahaa El Deen Mousa Abo El Atta, dated 3 December 2024, 3.

[61] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [25] (McHugh J).

[62] Sentencing Act 1995 (WA) s 7(2).

[63] YLT v The State of Western Australia [2020] WASCA 217.

[65] YLT [41] - [43] (Buss P, Mazza & Vaughan JJA).

[66] HSDO v The State of Western Australia [2025] WASCA 152 [77] (Thomson P, Mazza & Vaughan JJA).

[67] Affidavit of Maxwell Ian Crispe, sworn 11 November 2025, 1 - 4.

[68] Miorada v The State of Western Australia [2022] WASCA 143.