Criminal law and sentencing - Offences of indecently dealing with a child under the offender's care, supervision or authority - Sentence of 18 months' immediate imprisonment - Whether implied error as to the kind of sentence or as to the length of sentence

Director of Public Prosecutions for Western Australia

Brand v The State of Western Australia [2011] WASCA 269

Cartwright v The State of Western Australia [2010] WASCA 4

CJ v The State of Western Australia [2009] WASCA 42

Deering v The State of Western Australia [2007] WASCA 212

Dempsey v The Queen (Unreported, WASCA, Library No 960059C, 9 February 1996)

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

GNR v The State of Western Australia [2015] WASCA 5

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

Marris v The Queen [2003] WASCA 171

Nayna v The State of Western Australia [2016] WASCA 169

Poulton v The State of Western Australia [2008] WASCA 97

Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

Simon v The State of Western Australia [2009] WASCA 10

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

The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1

The State of Western Australia v Lee [2008] WASCA 150

The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228

1. The appellant appeals against his sentence of 18 months' immediate imprisonment imposed on his plea of guilty to eight counts of indecently dealing with a child under the age of 16 years under his care, supervision or authority. He alleges implied error both as to the type of sentence imposed and the length of the total effective sentence.
2. For the reasons that follow, implied error has not been demonstrated and the appeal must be dismissed.

1. The facts are not in dispute, and were not in dispute before the sentencing judge. The following facts were stated by the prosecutor, were not challenged on behalf of the defence and were incorporated by reference in the sentencing judge's remarks.[1]
2. The appellant was the full-time manager at a McDonald's store. At the time of the offending, he was 23 or 24 years of age.
3. The victim was a 15-year-old casual employee at the same McDonald's store.
4. All of the eight offences occurred on unknown dates between 1 November 2015 and 24 April 2016. The offences were committed on five separate occasions.
5. Count 1 occurred when the appellant and the victim arranged to meet at the McDonald's store. They went to the appellant's house in the same suburb. In the appellant's bedroom, the victim undressed herself and lay on the appellant's bed. The appellant remained dressed. While they kissed passionately, the appellant positioned the victim on top of him and rubbed his penis through his clothing on her vaginal area.
6. Count 2 occurred at the McDonald's store. The appellant and the victim went into a large store freezer. They kissed passionately, in the course of which the victim touched the appellant's penis.
7. Counts 3 and 4 occurred on two separate occasions at the McDonald's store. In both cases, the appellant and the victim kissed passionately, during which the appellant groped the victim's bottom. The groping of the victim on the second occasion is the subject of count 5.
8. Counts 6, 7 and 8 occurred on a single occasion at the appellant's house. The appellant and the victim met at the McDonald's store and walked to the appellant's house. They went into the appellant's bedroom where the appellant undressed the victim. They kissed passionately, during which the victim sat on top of the appellant, rubbing her vaginal area on his penis through his clothing (count 6). Count 7 occurred when the appellant fondled the victim's vagina, without penetration. Count 8 occurred when the appellant then fondled the victim's breasts.
9. The offences came to light when the victim's father discovered photographs on the victim's telephone. The appellant was arrested on 14 July 2016 and participated in an electronic record of interview. In the course of the interview, he said that he was involved in heavy drug use in that period and that he did not remember much.

1. The appellant was 23 or 24 when he committed the offences, and almost 26 at the time he was sentenced.[2]
2. He completed year 11 and then went to work in a local supermarket for about seven years.[3] He then took six months' off work and went to Melbourne. He returned to Perth and started work at the McDonald's store.[4] He was promoted to shift manager and had been in that position for six months, prior to his offending.[5]
3. After the appellant's offending came to light, he was offered work at another McDonald's store.[6] However, he resigned and went on Centrelink payments after deciding that he would have difficulty transporting himself there.[7] At the time of sentencing, the appellant was working in his brother's business and living with his parents.[8]
4. The appellant had commenced cannabis and alcohol use at 15 years old.[9] He used cannabis every second day until he was 17 years old and then his use increased for six years. Eventually he smoked every day on multiple occasions.[10] He had also been taking excessive Mersyndol and MDMA or ecstasy, at about 20 tablets per week, as well as sampling cocaine and magic mushrooms.[11] After his arrest, he gradually ceased all of his drug use and, at the time of sentencing, rarely drank.[12]
5. The psychological report included the following:

(1) The appellant was an emotionally immature and vulnerable young man who tended to repress his emotions.[13]

(2) The appellant stated that he initially supported the victim when he became aware that she was self-harming. When she began sending him intimate pictures, he encouraged it, justifying his conduct on the basis that he was taking drugs in large quantities at the time.[14]

(3) The appellant denied he was in a relationship with the victim. He expressed regret and shame for his behaviour and understood the likely impact on the victim.[15]

(4) The appellant fluctuated between taking responsibility for his offending behaviour and diminishing his responsibility due to his heavy substance abuse at the time.[16]

(5) The primary drivers for the appellant's offending were poor relationship skills, emotional immaturity, unrecognised depression and anxiety, a lack of appropriate means to meet his sexual needs, sexual and emotional empowerment by taking advantage of a vulnerable female, social isolation, disinhibition because of substance use, sex as a negative coping strategy, sexual gratification, poor judgment and a lack of consequential thinking.[17]

(6) The appellant is at average risk of reoffending. He needed treatment in relation to his relationship skills, drug use, anxiety and depression.[18]

1. The judge made detailed reference to the complainant's victim impact statement, including the following.
2. She was happy and confused when the appellant began to pay her attention.[19] After aging a couple of years, she felt upset about what she had lost, that the appellant had abused her trust and that if she had been more mature she would not have let it happen.[20] As a result of the offending, she stopped working and fell behind her friends who were all saving to purchase, and had purchased, cars. When she was ready to work again, she avoided fast-food places and was cautious of being around men.[21]
3. As a result of the offending, her relationship with her father changed and she felt that she had lost his trust and that he could not see her as a normal teenager because she had lost her innocence.[22] She subsequently distrusted people and was finding it harder in new relationships, worrying what potential partners might think of the offending.[23]
4. She was treated differently at school, being called a 'slut' and having trouble in class because of other schoolchildren. She had had trouble sleeping, affecting her concentration. Further, as the police seized her laptop, it was difficult for her to complete her schoolwork.[24] She began counselling and was diagnosed with anxiety and referred to a psychiatrist.[25] She no longer went out as much, having lost confidence in herself, worrying about what people would say about her and in fear of being around men. She no longer takes or shares photographs.[26]

1. As both grounds of appeal complain of implied error, it is not necessary to set out in detail all aspects of the sentencing remarks.
2. The judge identified a number of mitigating factors,[27] including the appellant's early plea of guilty, attracting a 17.5% discount;[28] his remorse, leading to his ceasing drug use; his undertaking of treatment for his anxiety and depression; his prior good character and the absence of any offending in the two years since these offences were committed. The judge also found that the appellant would be vulnerable if given a custodial sentence.
3. The judge identified a number of serious features of the appellant's offending conduct, including that:

(1) The offending was persistent, occurring on five separate occasions over a period of months.[29]

(2) The appellant opportunistically took advantage of a vulnerable teenager under his care at work, knowing she was underage.[30]

(3) There was a substantial age difference, of more than eight years, between the appellant and the victim.[31]

(4) The appellant's position of trust and authority enabled his commission of the offences.[32]

(5) While there was no physical coercion, the judge accepted the opinion in the psychological report that there was psychological coercion due to the appellant's position of power over the victim and her vulnerability, of which he took advantage.[33]

(6) In the period during which these offences were committed, or in the lead-up to them, the victim was self-harming, underlining her vulnerability.[34]

(7) The appellant was not in a relationship with the victim, he was just using her for his own sexual gratification.[35]

(8) The appellant knew better, but yielded to temptation.[36]

1. The judge observed that the nature of the appellant's offences meant that general deterrence was an important sentencing factor.[37] Further, it also meant that matters personal to the appellant had a lesser role than might otherwise be the case.[38] The protection of the vulnerability of young teenagers was also an important sentencing consideration.[39]
2. The judge then considered the appropriate disposition. His Honour stated:[40]

I've had regard to all available options. Imprisonment is imposed as a penalty of last resort. It's not imposed unless the seriousness of the offence can justify it or the protection of the community requires it. Now, it seems to me that the seriousness of the offending and the community protection does require a term of imprisonment for some but not all of these offences.

As to the ones for which imprisonment is appropriate, then I've given serious consideration to the question of suspending the service of the term. Now, this requires me to look a second time at all matters relevant to you going to prison in the first place to see whether on that second view I can suspend.

Now, here you've got good antecedents and you cooperated with the police. You 'fessed up, there's been no dispute of the facts ... [deserving a discount of] 17 and a half per cent.

Now, there's remorse. You're an average risk of reoffending. I've not been provided with any references. This set of charges is a serious set of charges. You've ceased drug use initially upon arrest and gradually over time since the reports, you've now ceased completely.

Now, I worried about this before coming here today and I put a number of matters to [defence counsel] as a result of those concerns. It's very borderline but I think ultimately the seriousness of the offending requires that you serve the term immediately and that I can't suspend.

1. His Honour turned to identify the penalty for each offence, including the length of any terms of imprisonment and whether they would be cumulative or concurrent. His Honour referred to the totality principle.[41]
2. His Honour imposed the following sentences:

1. The judge ordered that the appellant be eligible for parole.

1. There are two grounds of appeal. Both allege implied error. Ground 1 asserts that the judge erred in failing to suspend the terms of imprisonment imposed. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.

1. The appellant's submissions focus primarily on ground 1, but point to the same matters in support of both grounds. His submissions are to the following effect:

(1) Imprisonment is a sentence of last resort. The circumstances of this case were such that the imposition of a lesser penalty than immediate imprisonment was appropriate.[42]

(2) The following factors, taken together, should have led to the suspension of the appellant's term of imprisonment, or to a shorter sentence:

(a) the victim was a willing partner who initiated some of the offences;

(b) the victim was aged between 15 years and 4 months and 15 years and 10 months;

(c) the appellant expressed regret and shame for his conduct;

(d) the appellant was emotionally immature and suffered unrecognised anxiety and depression;

(e) the appellant was assessed as having an average risk of sexual reoffending;

(f) the appellant was likely to be vulnerable in custody;

(g) the appellant cooperated with police, pleaded guilty and was granted a 17.5% discount pursuant to s 9AA of the Sentencing Act 1995 (WA);

(h) the appellant demonstrated his remorse by his plea, his cessation of cannabis use and his undertaking treatment for his anxiety and depression; and

(i) the appellant had no prior record and had not offended in the two years between the offending and the sentencing.[43]

1. The appellant points to three cases involving sexual penetration of children where dispositions other than immediate imprisonment have been imposed.[44]

Appeals against sentence - general principles

1. The following general principles are well established.

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(3) When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. 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 a total sentence infringes the first limb of the totality principle. The mere fact that a sentence is within the range of other sentences imposed for similar offences 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.

(4) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(5) The severity or leniency of an individual sentence (which is not itself manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.

Suspended or immediate imprisonment - general principles

1. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act 1995 (WA), that it is not appropriate to impose suspended imprisonment.[45] In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[46]
2. In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.[47]
3. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.[48] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.[49] Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.[50]
4. In Fogg v The State of Western Australia,[51] McLure P explained the approach to an appeal against the refusal to suspend a term of imprisonment on the ground of implied error. A court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate. Whether suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision-maker. In borderline cases, different types of sentence may be reasonably open. In such cases, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust, and would reveal no implied error.
5. Thus, in the absence of express error, it is for the appellant to satisfy the court that the primary sentencing court's judgment, that suspension was not appropriate, was a conclusion that was not reasonably open.

Offences under s 321 of the Code - general principles

1. Section 321 of the Criminal Code provides as follows:
   1. Child of or over 13 and under 16, sexual offences against

(1) In this section, child means a child of or over the age of 13 years and under the age of 16 years.

(2) A person who sexually penetrates a child is guilty of a crime and is liable to the punishment in subsection (7).

Alternative offence: s. 321(4) or 322(2) or (4).

(3) A person who procures, incites, or encourages a child to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (7).

Alternative offence: s. 321(4) or (5) or 322(3), (4) or (5).

(4) A person who indecently deals with a child is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(4).

(5) A person who procures, incites, or encourages a child to do an indecent act is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(5).

(6) A person who indecently records a child is guilty of a crime and is liable to the punishment in subsection (8).

Alternative offence: s. 322(6).

(7) A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for -

(a) 14 years; or

(b) where the child is under the care, supervision, or authority of the offender, 20 years; or

(c) where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 7 years.

(8) A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for -

(a) 7 years; or

(b) where the child is under the care, supervision, or authority of the offender, 10 years; or

(c) where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 4 years.

(9) Subject to subsection (9a) it is a defence to a charge under this section to prove the accused person -

(a) believed on reasonable grounds that the child was of or over the age of 16 years; and

(b) was not more than 3 years older than the child.

(9a) Where the child is under the care, supervision, or authority of the accused person it is immaterial that the accused person -

(a) believed on reasonable grounds that the child was of or over the age of 16 years; and

(b) was not more than 3 years older than the child.

(10) It is a defence to a charge under subsection (2), (3) or (4) to prove the accused person was lawfully married to the child.

(11) It is a defence to a charge under subsection (5) to prove -

(a) that the indecent act was a private conjugal act; or

(b) that the accused person intended the indecent act to be a private conjugal act.

(12) For the purposes of subsection (11) an indecent act is a private conjugal act if -

(a) it is not committed in the presence of, or viewed by, any person other than a person lawfully married to the child; and

(b) no photograph, film, videotape or other recording is made of it other than for the exclusive and private use of the child and a person lawfully married to the child.

(13) It is a defence to a charge under subsection (6) to prove -

(a) that the accused person was lawfully married to the child; and

(b) that the indecent recording was made for the exclusive and private use of the child and the accused person.

(14) If an offence under this section is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in whichever of subsection (7) or (8) applies to the offence.

(15) If an offence under this section is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender -

(a) must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either -

(i) a term of imprisonment of at least 3 years; or

(ii) a term of detention under the Young Offenders Act 1994 of at least 3 years,

as the court thinks fit; and

(b) must not suspend any term of imprisonment imposed; and

(c) must record a conviction against the offender.

(16) Subsection (15) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4).

1. It can be seen that s 321 creates five offences in relation to a child aged 13, 14 or 15 years:

(2) Procuring, inciting or encouraging a child to engage in sexual behaviour.[53]

(3) Indecently dealing with a child.[54]

(4) Procuring, inciting or encouraging a child to do an indecent act.[55]

1. The maximum penalty for offences of the first two kinds is imprisonment for 14 years or, where the child is under the care, supervision or authority of the offender, 20 years. However, where the offender is under 18 and the child is not under the offender's care, supervision or authority, the maximum penalty is 7 years' imprisonment.[57]
2. The maximum penalty for the other three kinds of offences, relevantly including indecent dealing, is imprisonment for 7 years or, where the child is under the care, supervision or authority of the offender, 10 years. However, where the offender is under the age of 18 and the child is not under the offender's care, supervision or authority, the maximum penalty is imprisonment for 4 years.
3. It may be seen at once that absence of consent is not an element of any offence under s 321. Wheeler J (with whom Murray & Templeman JJ agreed) explained why this was so in Marris v The Queen:[58]

The history of s 321 demonstrates the understanding of the Legislature that the reason that absence of consent should not be an element of offences of this kind is that a child is not in a position to assess fully the meaning and consequences of sexual activity. It is clear that Parliament understood that both for that reason, and because of the disparity in power (physical, social, emotional and so on) which exists between a child and an adult, the concept of a child's 'consenting' to sexual intercourse with an adult should not find a place in the legislation.

1. Part of the purpose of s 321 of the Code is to protect children.[59] That purpose is not only to protect children from sexual predators, but also to protect children from themselves.[60] Section 321 reflects a recognition that a person aged less than 16 may have very limited capacity to resist moral, social, emotional or other pressure, particularly from a person more mature than themselves.[61]
2. Section 321 also reflects the view of the legislature that it is undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or cope with its social and emotional consequences.[62] Parliament has delineated that age as 16; that must be respected by the courts regardless of the level of maturity and sexual experience of a particular complainant.[63] In a sense, Parliament has chosen to protect children under 16 by depriving them of the capacity to consent, in a legally effective manner, to sexual conduct. That can be seen as reflecting a judgment that children under 16 are not in a position to give true or real or informed consent to the conduct criminalised in s 321.[64] Even where a young person aged less than 16 appears to wish to engage in sexual activity, there is, in effect, a duty cast upon others to refrain from acting on, or encouraging, those wishes.[65]
3. The text and structure of s 321 may be seen to suggest a concern with disparity in power.[66] One indication of this is the different treatment of offenders not more than three years older than the complainant.[67] Another indication is the different treatment of offenders aged under 18. A third is the different treatment of offenders who were exercising supervision or authority over the complainant at the time of the offence. That circumstance increases the maximum penalty[68] and also excludes a defence of belief on reasonable grounds that the child was of, or over, the age of 16 and the offender was not more than three years older than the complainant.[69]
4. The seriousness of offending under s 321 is increased by any element of abuse of a position or situation that enables the offender to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence.[70] This will be evidenced by matters such as disparity in age, the use of force or other types of pressure, a pattern of grooming behaviour, or a betrayal of a position of trust.[71]
5. In Dempsey v The Queen,[72] Murray J provided a non-exhaustive list of considerations relevant to sentencing an offender under s 321(7) of the Code. These were:
   1. The nature of the conduct in question, the degree of perversion or deviance demonstrated.
   2. The relative ages of the offender and the victim.
   3. Whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence.
   4. Whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender.
   5. The circumstances of the victim and the degree to which that person was not only taken advantage of, but his or her corruption was contributed to by the commission of the offence.
   6. Whether the offence was repeated and if so over what period or periods of time so as to enable the court to consider whether it was of an isolated character or displayed recidivism on the part of the offender.
   7. The degree of remorse displayed and whether any such contrition has been effectively followed up by determined efforts to achieve the offender's rehabilitation.
   8. The youth of the offender.
   9. The extent to which the victim's co-operation in the commission of the offences was secured by friendship or by the offer of some reward.
   10. The actual impact of the commission of the offence upon the child established by a victim impact statement or otherwise.
   11. Whether the offender has a prior relevant criminal history.
   12. The prevalence of such offences in the community at the time and the degree to which particular circumstances indicate a heightened need to seek to achieve the protection of the community and particularly of young persons from the commission of such offences, whether with or without their consent.
6. What was said by Murray J has been applied in this court or its predecessor on a number of occasions.[73] These considerations seem to me to be of assistance in sentencing under s 321(8) for an offence of indecent dealing under s 321(4).
7. In Simon, Steytler P (with whom McLure & Miller JJA agreed) observed that s 321(2) covers a very wide range of sexual activity and not all of it will justify a custodial sentence.[74] The same can be said, with additional force, in relation to s 321(4). Generally speaking, by its nature, and reflected in its lower maximum penalties, an offence of indecent dealing under s 321(4) is ordinarily, as a matter of fact, less serious than an offence of sexual penetration under s 321(2). Section 321(4) encompasses a wide range of sexual activity. That includes, for example, an offence constituted by kissing on the mouth between a 16-year-old and a 15-year-old who are in a relationship, conduct that in itself would not justify a sentence of imprisonment.
8. A number of cases of offences under s 321(2) were reviewed by Steytler P in Simon.[75] That review demonstrated that while there is no tariff, it is unusual to find a non-custodial disposition for offences of sexual penetration of a child under s 321(2). The same conclusion was reached by McLure P in GNR v The State of Western Australia.[76] While her Honour's statement was expressed to apply to sentences imposed for a breach of s 321 of the Code generally, offences of sexual penetration under s 321(2) were included in all of the cases to which her Honour referred, and the authorities discussed in them.
9. Thus, as a matter of fact, the cases reveal that, generally, a sentence of immediate imprisonment is ordinarily, as a matter of fact, imposed for an offence of sexual penetration contrary to s 321(2).[77] Despite that, even if a term of immediate imprisonment is generally the appropriate sentence, this 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.[78]
10. The appellant's offences were of indecent dealing, not sexual penetration. The appropriate sentence for each offence must be determined having regard to all the facts and circumstances of the offending and of the offender, to the maximum penalty and to the place which the offending conduct occupies on the scale of seriousness of offences of this kind.

1. We accept that the appellant had significant mitigating factors in his favour. These included his early plea of guilty; his remorse, demonstrated by his having ceased drug use and undertaken anxiety and depression treatment; his prior good character and the fact that he did not offend in the two years subsequent to the commission of these offences. Further, we accept that the appellant's offending is not in the most serious category of offences against s 321(4). In that respect, his victim was aged between 15 years 4 months and 15 years 10 months and was a willing partner who initiated some of the sexual contact. Nevertheless, the appellant's offending exhibited a number of serious features:
   1. His offending included reasonably serious examples of non-penetrative sexual activity with a child, including fondling of the vaginal area and of the breasts.
   2. The offending was persistent, occurring on five occasions over a period of several months.
   3. The appellant was not in a relationship with the victim, he was simply using her for his own sexual gratification.[79]
   4. There was a substantial difference, of eight or nine years, in the ages of the appellant and the victim, and this was known to the appellant.
   5. The victim was under the appellant's supervision and authority in the appellant's role as manager, the aggravating nature of which is reflected in the maximum penalty for each offence of 10 years.[80]
   6. Significantly, the judge found, without challenge on appeal, that in committing the offences the appellant took advantage of his position of power and of the victim's vulnerability.[81]
   7. As the appellant was aware, while these offences were being committed, or in the period leading up to that, the victim was self-harming, reinforcing her vulnerability.[82]
   8. The appellant's offending has caused significant and enduring harm to the victim, as summarised above at [18] - [20].
2. In our opinion, it was open to the sentencing judge to take the view that the serious features of the appellant's offending, including those to which we have referred, decisively outweighed the mitigating factors and other matters pointing towards suspension, so that only a term of immediate imprisonment was appropriate. We do not accept that the decision to impose immediate imprisonment reveals implied error.
3. Further, no error has been demonstrated in the length of the total effective sentence of 18 months' imprisonment. Notwithstanding the substantial mitigating factors in the appellant's favour and the other matters emphasised by his counsel, the serious features of the appellant's offending justified the sentence imposed. The sentence bore a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all the facts and circumstances, including those referable to the appellant personally, and all the relevant sentencing factors. Error cannot be inferred from the sentencing outcome.
4. In GJT v The State of Western Australia,[83] the appellant was convicted on his fast-track pleas of guilty of four counts of indecent dealing of a child under the age of 16 years who he then knew to be his de facto child, contrary to s 329(4) of the Criminal Code. This offence carries a maximum penalty of 10 years' imprisonment. The offences were committed some time in 1995 and 1996 in two incidents and involved the rubbing of the victim's vagina (counts 1 and 2), her breasts (count 3) and inappropriately kissing her (count 4). The appellant was, at the time of the offending, 38 or 39 years old and the victim was 12. The appellant was sentenced at first instance to 14 months' immediate imprisonment on each of counts 1 and 2, and 12 months' immediate imprisonment on each of counts 3 and 4. The sentencing judge imposed a total effective sentence of 2 years and 4 months' immediate imprisonment with eligibility for parole.
5. An appeal against sentence was allowed. The majority (McLure P, Mazza J agreeing) found that the total effective sentence infringed the first limb of the totality principle and re-sentenced the appellant to a total effective sentence of 8 months' imprisonment (after credit for 8 months in custody), suspended for 3 months. In his reasons, Buss JA confirmed statements made in JD v The State of Western Australia[84] that, in cases involving a single incident of touching the breasts of a young girl, non-custodial sentences are not extraordinary and that when custodial sentences have been imposed, individual sentences ranged from 9 months to 18 months (pre the 2003 transitional provisions) with sentences at the highest end of the range involving the fondling of a child's genitals.[85]
6. Buss JA also analysed a large number of sentencing cases involving offences of indecent dealing of a child, including cases where the offender was sentenced for more than one offence.[86] It is unnecessary to repeat that analysis. It is sufficient to say that the individual sentences and the total effective sentence imposed upon the appellant are broadly consistent with the outcomes of the cases analysed by his Honour.
7. For those reasons, while we would grant leave to appeal on both grounds, neither ground has been made out.

1. For the above reasons we would make the following orders:
   1. Leave to appeal be granted on grounds 1 and 2.
   2. The appeal be dismissed.

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

RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH

On 24 July 2018, the second sentence of [57] was corrected.

[14] Psychological report [12], ts 33.

[15] Psychological report [12], ts 33.

[17] Psychological report [13], ts 33.

[18] Psychological report [20]; ts 33.

[33] ts 36, referring to psychological report [15].

[42] Appellant's submissions [18], [25].

[43] Appellant's submissions [6]; appeal ts 4 - 6, 8 - 9.

[44] Appellant's submissions [20] - [24], referring to GNR v The State of Western Australia [2015] WASCA 5; Brand v The State of Western Australia [2011] WASCA 269; and The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228.

[46] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1 [68]; Skipworth v The State of Western Australia [2008] WASCA 64 [8], [11].

[47] Cartwright v The State of Western Australia [2010] WASCA 4 [8]; Skipworth [8].

[48] Dinsdale [18], [26], [84].

[51] Fogg v The State of Western Australia [2011] WASCA 11, [8] - [10].

[58] Marris v The Queen [2003] WASCA 171 [12].

[59] Deering v The State of Western Australia [2007] WASCA 212 [17]; Poulton v The State of Western Australia [2008] WASCA 97 [4].

[60] Deering [17]; Poulton [5]; GNR [61]; Nayna v The State of Western Australia [2016] WASCA 169 [45].

[61] Deering [18]; Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [19]; Simon v The State of Western Australia [2009] WASCA 10 [20]; The State of Western Australia v SJH [151].

[62] Deering [17]; Riggall [21]; Simon [21].

[63] Poulton [5]; Riggall [21]; Simon [21].

[65] Riggall [21]; The State of Western Australia v SJH [151].

[66] The State of Western Australia v SJH [61].

[68] Section 321(7)(b) and s 321(8)(b).

[70] Poulton [4]; The State of Western Australia v Lee [2008] WASCA 150 [10]; Simon [23].

[71] Deering [18]; Simon [20].

[72] Dempsey v The Queen (Unreported, WASCA, Library No 960059C, 9 February 1996) 6 - 7.

[73] See Simon [25] and cases to which it refers.

[77] Nayna [45]; CJ v The State of Western Australia [2009] WASCA 42 [14].

[82] ts 37; as to the significance of this, see [46] above.

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

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