Criminal law - Appeal against sentence - Appellant convicted of indecent dealing with a child - Appellant the grandfather of the child - Appellant convicted after trial - Sentence of 16 months' immediate imprisonment - Manifest excess

Sentencing Act 1995 (WA), s 6(4), s 39, s 76

Asplin v The State of Western Australia [2013] WASCA 72

BGE v The State of Western Australia [2013] WASCA 136

BGR v The State of Western Australia [2014] WASCA 82

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fogg v The State of Western Australia [2011] WASCA 11

GJT v The State of Western Australia [2011] WASCA 263

Holden v The State of Western Australia [2011] WASCA 238

Jacobsen v The State of Western Australia [2015] WASCA 191

JD v The State of Western Australia [2008] WASCA 147

Lawson v The State of Western Australia [No 3] [2018] WASCA 129

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Murphy v The State of Western Australia [2013] WASCA 178

P v The State of Western Australia [2007] WASCA 220

PDT v The State of Western Australia [2012] WASCA 134

PJB v The State of Western Australia [2018] WASCA 150

SAP v The State of Western Australia [2011] WASCA 155

Skipworth v The State of Western Australia [2008] WASCA 64

The State of Western Australia v Hassell [2014] WASCA 158

The State of Western Australia v Shephard [2018] WASCA 140

1. This is an appeal against sentence.
2. The appellant was charged on indictment with three offences.
3. Count 1 alleged that on or about 16 January 2017, at Coodanup, the appellant indecently dealt with E, a child who he then knew to be his lineal relative, by touching her buttocks, contrary to s 329(4) of the Criminal Code (WA) (the Code), and that E was under the age of 16 years.
4. Count 2 alleged that on the same date and at the same place as in count 1, the appellant indecently dealt with E, a child who he then knew to be his lineal relative, by touching her vaginal region, contrary to s 329(4) of the Code, and that E was under the age of 16 years.
5. Count 3 alleged that on the same date and at the same place as in count 1, the appellant indecently dealt with E, a child who he then knew to be his lineal relative, by touching her anal region, contrary to s 329(4) of the Code, and that E was under the age of 16 years.
6. On 29 March 2018, after a trial before O'Neal DCJ and a jury, the appellant was convicted of count 1 and acquitted of counts 2 and 3.
7. On 9 May 2018, the appellant was sentenced to 16 months' immediate imprisonment with eligibility for parole. He was in custody between 9 May 2018 and 15 June 2018. On 15 June 2018, Mazza JA granted the appellant bail pending the hearing of the appeal.
8. On 16 August 2018, at the conclusion of the hearing of the appeal, this court made the following orders:

(c) the sentence of 16 months' immediate imprisonment imposed by the trial judge is set aside; and

(d) the appellant is re-sentenced to a term of 8 months' imprisonment, the term being suspended pursuant to s 76 of the Sentencing Act 1995 (WA) for a period of 12 months.

The facts and circumstances of the offending

1. At the time of the offending, the appellant was aged 74 and E was aged 5. The appellant was E's grandfather.
2. The offending occurred while E and her younger sister were staying with the appellant for three days. During the visit E fell from a chair and hurt her back. However, by the next day she was not experiencing any pain. Nevertheless, on the afternoon of the next day, the appellant gave E a massage ostensibly to relieve soreness in her back. The trial judge found in essence that E had told the appellant, before he gave her the massage, that she had no pain.
3. When E agreed to the massage, the appellant took her into a room she was sharing with her sister. The appellant brought a futon from the lounge room and placed it on the floor. E and the appellant were alone in the room. The appellant closed the door.
4. The appellant told E to remove all of her clothes. She did so. The appellant then rubbed her body with massage oil. The trial judge found that, during the massage, the appellant knelt beside E and rubbed her with oil 'from her knee up to the bottom of her chest at least' (ts 404). His Honour noted the appellant's admission that he had touched her buttocks. That was the act the subject of count 1. His Honour said that, given their verdict of guilty on count 1, the jury were satisfied that the appellant's conduct in touching E's buttocks was indecent.
5. His Honour explained the jury's verdicts of not guilty on counts 2 and 3 on the basis that 'they might well have not been satisfied beyond reasonable doubt that [the appellant touched E] on the vagina and on the anus as they were expressly directed by me' (ts 405). His Honour said that he suspected that had the indictment charged the appellant 'with indecent dealing ... by touching [E] in her vaginal area at the top of her pubic bone and by touching her anal region on her coccyx, the outcome would ... have been different'. His Honour recorded that his suspicion was not relevant to sentencing the appellant 'beyond understanding the facts found by the jury' (ts 405).
6. The appellant gave evidence at the trial. The trial judge observed in his sentencing remarks that he approached the appellant's evidence with considerable caution. Where his evidence conflicted with the evidence of E or her mother, his Honour preferred their evidence. His Honour did not believe the appellant's evidence that he had told E's mother about the massage when she came to the appellant's house to collect E. Also, his Honour did not believe the appellant's explanation as to why he had instructed E not to inform anyone about the massage.

The appellant's personal circumstances and antecedents

1. The appellant was aged 75 years when sentenced.
2. He had been married for 30 years and has 3 children and numerous grandchildren.
3. After his marriage ended, the appellant began another relationship. This relationship has subsisted for about 9 years. The appellant continues to have the support of his partner and family members apart from E's parents.
4. The appellant has veterinary science qualifications. He worked in that field for many years before his retirement.
5. The material before the trial judge at the sentencing hearing included written references as to the appellant's character. The authors of the references spoke well of him.

1. The trial judge said in his sentencing remarks that, in order to fix the degree of objective criminality of the act the subject of count 1, he needed to determine 'what the nature of the act was' (ts 410). His Honour did not accept that the appellant had given E 'an innocent therapeutic massage' (ts 410). Also, his Honour did not accept that at the time of the massage E had 'any residual pain from her fall' (ts 410).
2. His Honour concluded that the 'obvious reason for [the appellant] doing this act [was] the exploration of some kind of sexual curiosity or gratification' (ts 411). His Honour found that 'this offence does not rank among the most serious examples of this kind of crime but it could not be said to be at a low level of objective criminality' (ts 411). His Honour elaborated:

[Y]ou abused a position of trust to give your five-year-old granddaughter a naked massage with oil, touching her, as has been described, and for the purposes of sentencing you rubbing her naked buttocks with oil. That ranks as a moderately serious example of this kind of offending (ts 411).

1. The trial judge decided that, in view of the seriousness of the offence, a term of imprisonment was the only appropriate disposition. He considered that an appropriate term was 16 months. His Honour was satisfied, for the following reasons, that the term should be served immediately:

There is no remorse on your part or even acceptance of responsibility for what you've done. More to the point you have aligned or helped align the rest of your family against the parents of the victim of this offending, which goes further to show the lack of remorse and acceptance of responsibility.

Having again looked at all relevant circumstances, I'm not persuaded that given the nature and gravity of this offending that suspension would be warranted (ts 412).

1. There are three grounds of appeal.
2. Ground 1 alleges that the trial judge made an express error by finding as a fact that the offending was sexually motivated. The particulars of ground 1 assert that the finding in question was not the only reasonable inference open on the evidence and that his Honour 'could not have been satisfied of this beyond reasonable doubt so as to make this finding'.
3. Ground 2 alleges, in effect, that the length of the term of 16 months' immediate imprisonment was manifestly excessive.
4. Ground 3 alleges, in effect, that his Honour made an implied error by failing to suspend the term of imprisonment.
5. On 2 July 2018, Buss P granted leave to appeal on grounds 2 and 3 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
6. At the hearing of the appeal, counsel for the appellant said she was not instructed to abandon ground 1, but she did not intend to make any oral submissions on the ground and merely relied upon the appellant's written submissions.

Ground 1: the appellant's written submissions

1. The appellant argued in his written submissions that the trial judge erred by finding as a fact that the offending was sexually motivated. He asserted that the jury's verdicts of not guilty on counts 2 and 3 indicated that the jury had a reasonable doubt as to whether the appellant had touched E's vaginal or anal region or, at least, that they had a reasonable doubt as to E's evidence in that respect. The appellant claimed that, having regard to the appellant's evidence at the trial, the circumstances of the offending on count 1 and the verdicts on counts 2 and 3, it was not open to his Honour to be satisfied beyond reasonable doubt that the offending was sexually motivated.

1. As we have mentioned, the trial judge explained the jury's verdicts of not guilty on counts 2 and 3 on the basis that 'they might well have not been satisfied beyond reasonable doubt that [the appellant touched E] on the vagina and on the anus as they were expressly directed by me' (ts 405). We are satisfied that it was open to his Honour to explain the jury's verdicts of not guilty on counts 2 and 3 on that basis. His Honour's explanation is to be preferred to the appellant's assertions in relation to those verdicts.
2. His Honour noted, correctly, that he could not find that there was a sexual aspect to the appellant's conduct the subject of count 1 unless that was the only reasonable inference open (ts 410). As we have mentioned, his Honour's finding that the reason why the appellant massaged E's naked body with oil (including the reason why he touched her buttocks) was to explore some kind of sexual curiosity or gratification (ts 411). His Honour made that finding on the basis of his assessment of E's credibility and the appellant's credibility in the context of the evidence each of them gave at the trial (ts 410 - 411).
3. In particular, the trial judge was of the opinion that E was a relatively resilient and intelligent witness (ts 403). She had given a consistent account of the act the subject of count 1. The jury were satisfied beyond reasonable doubt that the act had occurred and that the offence charged had been proved beyond reasonable doubt. E maintained her evidence in cross-examination (ts 409). By contrast, the appellant's explanations were incongruous and made no sense. When he was confronted with the incongruity in cross-examination, the appellant's 'discomfort was apparent' (ts 406 - 407). His Honour accepted E's evidence in material respects and rejected the appellant's evidence to the extent that it differed materially from that of E.
4. His Honour had the advantage of having seen and heard E and the appellant give their evidence. He was entitled to accept E's evidence and to reject the appellant's evidence. There is no basis in the trial record for disturbing his Honour's finding that the offending was sexually motivated. He was entitled to make that finding beyond reasonable doubt. The finding was underpinned by other findings that his Honour made and that were open; namely, the massage given to E was the first occasion on which the appellant had massaged a completely naked person; it was the first occasion on which he had massaged a child in private; E's parents did not know about the massage because he had not sought their permission to perform it; E had told the appellant, before he gave her the massage, that she had no pain in her back; there was no therapeutic reason for the appellant to touch E's buttocks; and the appellant instructed E not to inform anyone about the massage (ts 405 - 406).
5. Ground 1 is without merit.

1. Counsel for the State submitted that the sentence of 16 months' immediate imprisonment was an appropriate reflection of the gravity of the appellant's offending and the dominant sentencing considerations of personal and general deterrence and the protection of vulnerable children. The appellant's personal circumstances were not exceptional and did not outweigh the need for a sentence of immediate imprisonment of that length.
2. It was argued that, in general, a suspended term of imprisonment will not be imposed for an offence of indecent dealing with a child unless there are unusual or exceptional sentencing factors which justify a departure from the ordinary rule that, as a matter of fact, a term of immediate imprisonment should be imposed for sex offending of this kind.
3. Counsel submitted that the appellant's conduct the subject of count 1 was, objectively, very serious. E was only 5 years of age. She was vulnerable, did not understand the true nature of the conduct and had little choice but to accept the massage. The appellant massaged E out of a sense of sexual curiosity or to obtain sexual gratification. The offence constituted a gross breach of trust, given that the appellant was E's grandfather and he had been entrusted with her care while she and her younger sister were at his house.
4. Counsel relied upon the trial judge's characterisation of the appellant's offending as 'a moderately serious example' of offending of this kind (ts 411). Counsel contended, in his oral submissions, that 'a good portion of the body of this 5 year old grandchild was rubbed with oil in the privacy of a closed [bedroom door]' and that this court should ascribe 'a criminal element' to the touching of E's body apart from her buttocks (appeal ts 18).
5. It was argued that the appellant had not demonstrated that the sentence of 16 months' immediate imprisonment was beyond the bounds of a reasonable exercise of his Honour's discretion. The sentence was not unreasonable or plainly unjust either in its length or as a result of the decision not to suspend.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[1]
3. In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act 1995 (WA). By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
4. In the present case, the maximum penalty for the offence committed by the appellant is 10 years' imprisonment.
5. By s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

1. Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

1. Section 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
2. Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of:

1. The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
2. The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
3. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
4. The sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[2] Fogg v The State of Western Australia.[3]
5. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation or other circumstances personal to the offender. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. See Dinsdale v The Queen.[4]
6. Recently, in The State of Western Australia v Shephard,[5] Buss P, Mazza JA and Beech JA observed in relation to sexual offending against children:

The primary sentencing considerations for sexual offending against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case (GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 [72]; BGR v The State of Western Australia [2014] WASCA 82 [45], [101]). There is no tariff for sexual offences against children, including, specifically, for indecent dealing with a child (See, for example, GJT [74]). Ordinarily, as the respondent accepts (Respondent's submissions [28]), a sentence of immediate imprisonment is imposed for sexual offending against children (GJT [5]; BGR [45]). However, that fact does not relieve a sentencing judge of the obligation to assess whether, having regard to all the facts and circumstances and all the sentencing factors in the particular case, it is appropriate to suspend the term of imprisonment (Collins v The State of Western Australia [2007] WASCA 108 [21]; Cartwright v The State of Western Australia [2010] WASCA 4 [10]; Cross [51]).

Non-custodial sentences are not extraordinary for a single incident of indecent dealing with a child, particularly those cases involving the touching of the breasts of a young girl (JD v The State of Western Australia [2008] WASCA 147 [18]; GJT [77]). When custodial sentences have been imposed, they have ranged from 9 months to 18 months (pre-transitional), with sentences at the higher end of the range involving the fondling of the girl's genitalia (JD [18]; GJT [77]).

In GJT v The State of Western Australia, Buss JA analysed a large number of sentencing cases involving offences of indecent dealing with a child, including cases where more than one offence was committed (GJT [85] - [119]). We adopt that analysis, without repeating it.

There are cases in which suspended imprisonment has been imposed for non-penetrative sexual offending against children. However, each involved unusual and exceptional combinations of mitigating factors which justified the suspension of the terms of imprisonment. For the reasons explained below in [50], the same cannot be said in the present appeal.

See also PJB v The State of Western Australia.[6]

1. Although, as a matter of fact, a sentence of immediate imprisonment is ordinarily imposed for sexual offending against children, the sentence to be imposed in a particular case ultimately depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. Previous decisions in relation to sexual offending against children may provide only limited assistance in some cases because of the very wide variety of circumstances in which offences of this kind are committed. It is important, nevertheless, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending for the purpose of ensuring broad consistency.
2. We have examined numerous cases with at least some features comparable to the appellant's offending, including P v The State of Western Australia;[7] JD v The State of Western Australia;[8] SAP v The State of Western Australia;[9] GJT v The State of Western Australia;[10] PDT v The State of Western Australia;[11] Asplin v The State of Western Australia;[12] BGE v The State of Western Australia;[13] Murphy v The State of Western Australia;[14] BGR v The State of Western Australia;[15] The State of Western Australia v Hassell;[16] Jacobsen v The State of Western Australia;[17] Shephard; and PJB.
3. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
4. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the totality principle. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
5. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
6. In the present case, the trial judge's characterisation of the appellant's offending as 'a moderately serious example' of offending of this kind (ts 411) is not a finding of fact, but an evaluative judgment. Appropriately, the characterisation was not separately challenged in a ground of appeal. See Holden v The State of Western Australia;[18] Lawson v The State of Western Australia [No 3].[19] That characterisation is, no doubt, significant in explaining why his Honour imposed the sentence of 16 months' immediate imprisonment. However, whether the sentence is manifestly excessive is to be determined by reference to the facts and circumstances of the offending (including his Honour's unchallenged findings of fact), having regard to the maximum penalty, any comparable cases, this court's assessment of the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of the kind in question and all relevant sentencing factors.
7. We reject counsel for the State's contention that this court should ascribe 'a criminal element' to the touching of E's body apart from her buttocks (appeal ts 18). The charge, as alleged in the indictment, was that the appellant indecently dealt with E by touching her buttocks. There was no occasion for the jury to determine whether it was indecent for the appellant to have touched other parts of E's body.
8. However, the facts and circumstances of the offending, including that:

(b) E was vulnerable, did not understand the true nature of the appellant's conduct and had little choice but to accept the massage;

(c) the appellant massaged E's naked body without having sought her parents' permission;

(d) the appellant massaged E out of a sense of sexual curiosity or to obtain sexual gratification;

(e) the appellant instructed E not to inform anyone about the massage; and

(f) the offence constituted a gross breach of trust, given that the appellant was E's grandfather and he had been entrusted with her care while she and her younger sister were at his house,

demonstrated the seriousness of the appellant's conduct and the seriousness of the offence he committed.

1. However, the seriousness of those facts and circumstances must be assessed in the context of other facts and circumstances. In particular:

(a) the appellant was fully clothed while he massaged E;

(b) the appellant did not engage in grooming behaviour either on the occasion in question or during previous visits by E to his house;

(d) the massage was a single event and did not occur in the course of other uncharged indecent dealings or sexual activities; and

(e) the appellant's criminality involved touching E's naked buttocks and did not extend to the touching of her breasts, genitals or anus.

1. Although the absence of more serious features is not mitigating, the absence of those features informs the nature and extent of the appellant's objective criminality and the place which his criminal conduct occupies on the scale of seriousness of offences of the kind in question.
2. The appellant did not have the mitigation that a plea of guilty would have brought. He did not evince remorse or an acceptance of responsibility. The appellant was not youthful or inexperienced for sentencing purposes.
3. However, the appellant had no prior history of any sexual offending; he had made a valuable contribution to the community in the course of his life; he had a sound work history; he was of prior good character; and he conceded that he had touched E's naked buttocks (although he denied that the touching was indecent).
4. We are satisfied that the sentence of 16 months' immediate imprisonment was not commensurate with the seriousness of the offence. In our opinion, having regard to all relevant facts and circumstances and all relevant sentencing factors, the length of the sentence was manifestly excessive. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty (10 years' imprisonment), the seriousness of the offending (including E's vulnerability), the general pattern of sentencing for offending of this kind, the importance of appropriate punishment and personal and general deterrence as sentencing considerations and all mitigating factors. The length of the term was unreasonable or plainly unjust.
5. Ground 2 has been made out. This court's discretion to resentence the appellant has been enlivened. It is unnecessary to consider ground 3.

The result of the appeal and the resentencing of the appellant

1. We would allow the appeal.
2. This court has the material necessary to resentence the appellant.
3. The sentence imposed by the trial judge for count 1 on the indictment should be set aside.
4. As we have mentioned, the appellant was in custody, serving the sentence imposed by his Honour, between 9 May 2018 and 15 June 2018.
5. After taking into account the maximum penalty, the facts and circumstances of the offence, the time the appellant has spent in custody and all other relevant sentencing factors (including matters of mitigation), we are satisfied that the seriousness of the offence is such that only a sentence of imprisonment can be justified. We would resentence the appellant to a term of 8 months' imprisonment. However, it is appropriate, in all the circumstances, that the term be suspended, pursuant to s 76 of the Sentencing Act, for a period of 12 months.

1. On 16 August 2018, at the conclusion of the hearing of the appeal, we made the orders set out at [8] above for the reasons we have given.

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

[1] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[2] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).

[3] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).

[4] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86] (Kirby J).

[5] The State of Western Australia v Shephard [2018] WASCA 140 [41] - [44].

[6] PJB v The State of Western Australia [2018] WASCA 150 [32], [35] - [36] (Buss P and Mazza JA).

[7] P v The State of Western Australia [2007] WASCA 220.

[8] JD v The State of Western Australia [2008] WASCA 147.

[9] SAP v The State of Western Australia [2011] WASCA 155.

[10] GJT v The State of Western Australia [2011] WASCA 263.

[11] PDT v The State of Western Australia [2012] WASCA 134.

[12] Asplin v The State of Western Australia [2013] WASCA 72.

[13] BGE v The State of Western Australia [2013] WASCA 136.

[14] Murphy v The State of Western Australia [2013] WASCA 178.

[15] BGR v The State of Western Australia [2014] WASCA 82.

[16] The State of Western Australia v Hassell [2014] WASCA 158.

[17] Jacobsen v The State of Western Australia [2015] WASCA 191.

[18] Holden v The State of Western Australia [2011] WASCA 238 [10] (McLure P; Buss JA and Mazza J agreeing).

[19] Lawson v The State of Western Australia [No 3] [2018] WASCA 129 [111] (Buss P, Mazza & Beech JJA).