COUTTS -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 38 (1 March 2023)

1. The facts were not in dispute. They are as follows.
2. The victim in respect of counts 1 and 2 was a 15‑year‑old boy, who will be referred to as B. At the time of the offences against B, the appellant was 29 years old.[1]
3. The appellant came into contact with B on Grindr, an online dating application, in November or December 2018. At that time, B told the appellant that he was 18 years old. The appellant and B began exchanging sexualised indecent messages, including images and recordings.[2]
4. The appellant and B met in person for the first time on 8 December 2018. B contacted the appellant asking for help when a Grindr meeting with another man did not go to plan. The appellant agreed to pick up B and, after doing so, drove back to B's home, where they engaged in sexual intercourse. This marked the beginning of a sexual relationship. At this time the appellant continued to believe that B was over the age of 16.[3]
5. Sometime after commencing the sexual relationship the appellant discovered that B was 15 years old. Counts 1 and 2 on the indictment relate to conduct that occurred after he became aware of B's age, being the final occasion that the appellant and B engaged in sexual activity.[4]
6. On a date unknown between 10 December 2018 and 15 February 2019 the appellant picked up B from B's home and drove him to the appellant's home. The appellant and B went into the kitchen. The appellant asked B to suck his penis. The appellant then pulled down his pants and B performed fellatio on him. This conduct is the subject of count 1 on the indictment.[5]
7. B then got up and lent over the kitchen counter. The appellant approached B from behind and inserted his penis into B's anus. The appellant called B a 'good pup'. This conduct is the subject of count 2 on the indictment.[6]
8. After the events just described the appellant broke up with B, telling him that he should find people his own age. He told B, 'I'm still your master, but I'm not your boyfriend'.[7]
9. The appellant was arrested and participated in police interviews on 5 March 2019 and 8 March 2019. He admitted to having a sexual relationship with B but claimed that at the time he believed that B was over the age of 16. It only later came to light that the conduct the subject of counts 1 and 2 had occurred after the appellant became aware of B's true age. There was, however, evidence relating to the exchange of sexual images that had occurred after the appellant became aware of B's age and this resulted in charges that were dealt with separately (and which are referred to at [30] ‑ [36]).[8]
10. Counts 3 - 9 relate to another complainant, a girl, D, who was 14 years old at the time of the offences. The appellant was 29 years old at that time.[9]
11. The appellant was a friend of D's family, though they had not been in close contact for some years. The friendship was rekindled, and the appellant gained the trust of D's mother. This provided him with access to D, including spending time with her in the regional town where she lived, and inviting her to spend weekends with him at his home in Perth.[10]
12. D came to believe that she was in a relationship with the appellant. The relationship became a sexual one and continued for approximately six months. Counts 3 ‑ 9 are representative of the ongoing sexual conduct that occurred during that period. Prior to the commencement of the relationship, D had never had sexual intercourse.[11]
13. On 16 February 2019, D was at the appellant's home. The appellant and D were lying on a mattress in the lounge room. The appellant produced a tube of lubricant and then attempted to use a vibrator, which failed to function. He and D then drove to an adult store, where the appellant exchanged the vibrator for a dildo. D remained in the car, which was parked outside, while the appellant entered the store and completed the transaction. They then returned to the appellant's home and had sexual intercourse. This included the appellant inserting his penis into D's vagina and inserting the dildo into her vagina. This was the first occasion that the appellant and D engaged in sexual intercourse. This conduct constitutes count 3 on the indictment.[12]
14. On an evening between January 2019 and April 2019, the appellant and D were on the grounds of a high school in the regional town where D lived. The appellant placed his jacket on the grass and D lay down on it. The appellant laid on top of D and inserted his penis into her vagina. Initially he did not use a condom, however, at one point he paused and placed a condom on his penis and then continued having sexual intercourse with D. The appellant left an unopened condom packet on the school grounds, thinking that to do so was funny. D located and removed the packet the following day. This act of sexual penetration is the subject of count 4 on the indictment.[13]
15. Between 13 April 2019 and 26 April 2019, D stayed at a friend's house in a suburb of Perth for two weeks during the school holidays. On an evening during that period, the appellant and D went to a bedroom of the house. The appellant located a pink highlighter pen which he inserted into D's vagina. This conduct is the subject of count 5 on the indictment.[14]
16. On another day during the same two-week period, the appellant and D went for a walk to a bush area near the house where D was staying. The appellant caused D to lie on the ground. He spat saliva onto his hand to use as a lubricant, and then proceeded to insert his penis into D's vagina. This conduct is the subject of count 6 on the indictment. Several days later, D suffered a bacterial infection to her vagina, which was treated by her family doctor.[15]
17. On the evening of 7 June 2019, the appellant and D attended a cinema in the regional town where she lived. Whilst they were seated watching the movie, the appellant inserted his fingers into D's vagina. This conduct is the subject of count 7 on the indictment.[16]
18. On the same day, after leaving the cinema, the appellant drove D to a beach near the high school. The appellant moved the passenger seat into a reclining position, so that D was lying flat. He then lay on top of D and inserted his penis into her vagina. D changed positions and put herself in a seated position on the appellant's penis. The appellant was not wearing a condom at the beginning of this activity, though at some stage he did place one onto his penis. This conduct is the subject of count 8 on the indictment.[17]
19. On D's 15th birthday, in August 2019, the appellant was staying at D's home in the regional town. By this time, the appellant was 30 years old. The appellant said that he did not want D to spend her birthday alone as she was emotional and feeling mentally unstable. As the appellant and D were watching a movie whilst sitting on a mattress in her bedroom, he tried to insert his finger into D's vagina. He commenced by rubbing her vagina over her pyjama pants. He then placed his hand underneath her pants and rubbed the outside of her vagina and over the area of her clitoris. D removed the appellant's hand, telling him 'mum is in the other room'. This conduct is the subject of count 9 on the indictment, the charge of indecent dealing.[18]
20. The appellant was arrested on 11 December 2020. He participated in an interview in which he denied any sexual contact with D. However, he admitted spending time with D after she contacted him via Facebook Messenger. He said he knew that D was about 15 years old, and that he had visited her in the town where she lived and that she had stayed with him at his unit in Perth. He claimed that he treated D like a little sister and was trying to help her out. He admitted to cuddling D whilst they watched television. He claimed that he was aware that D had a sexual interest in him but said that he had told her that they could not have a sexual relationship. He claimed that D had kissed him once on the cheek whilst he was driving and that he had 'a talk to her about it'. He stated that his sexual interest was in males, not females, and that due to a medication he was taking, he did not have a sex drive in 2019.[19]

1. As noted at [16], the appellant was interviewed by the police regarding B in March 2019. At that time B denied that a sexual relationship had occurred. However, there was evidence that the appellant had exchanged sexually explicit messages and images with B at a time when he knew that he was under the age of 16. This resulted in him being charged with one count of using an electronic communication with intent to expose a person under the age of 16 to indecent material, contrary to s 204B (2)(a)(ii) of the Code, and one count of possessing child exploitation material, contrary to s 220 of the Code. He pleaded guilty to those charges and was sentenced on 3 July 2020.
2. The facts of those offences were as follows.
3. After meeting B on Grindr in December 2018, the appellant and B began exchanging sexualised and indecent messages. There were discussions about their lives and personal circumstances. These messages continued for about a week. After they first met on 8 December 2018 (referred to at [11]) the appellant and B commenced a sexual relationship.[20]
4. On 10 December 2018 the appellant contacted the Department of Child Protection (DCP) and said he had concerns about B. These concerns were that B was in conflict with his parents and he was engaging in harmful activity by having sex with adults he met on Grindr. In the same call the appellant said that he had also had sex with B before he knew that B was 15. He also said that he knew that B was besotted with him and was reliant on him for support. Contemporaneous DCP records confirmed that the appellant made this report.[21]
5. The appellant said that after reporting his concerns to DCP his relationship with B became platonic. However, he admitted that on 5 January 2019 he sent B a video of himself masturbating. He described this as a 'slip-up' and suggested that it could have been sent whilst he was intoxicated and trading nudes with others on Grindr, though he had no specific recollection of sending the video. The sentencing judge found that the video was sent in response to a sexual video that B had sent to the appellant.[22]
6. On 5 March 2019 police found multiple images of B on the appellant's mobile telephone which were category 1 or category 2 child exploitation material. These are the lowest categories on the scale relating to such material. The images had been sent to the appellant by B. When interviewed by police the appellant said that after he became aware that B was 15 he asked B to stop sending images of himself, but B continued to do so.[23]
7. The sentencing judge accepted the appellant's claim that he did not have sex with B after discovering his age.[24] It is now apparent that the appellant was not truthful in that regard.
8. The appellant was sentenced to 12 months' imprisonment on the first count and 6 months' imprisonment on the second count, both sentences being conditionally suspended for a period of 18 months.[25]
9. We have set out the earlier proceedings in some detail because they are relevant to the present appeal for the following reasons. First, they provide context to the offences that are the subject of the appeal. Secondly, it is now apparent that the appellant was untruthful in the earlier proceedings about when the sexual relationship with B ceased. He presented himself in a falsely favourable light and was sentenced on that basis. Whilst there is, and can be, no suggestion of the possible leniency of the earlier sentence being a relevant consideration in the disposition of this appeal, the appellant's lack of honesty regarding his conduct in relation to B is relevant in assessing his remorse and the need for personal deterrence. Thirdly, the appellant was on bail for the earlier offences at the time he committed the offences against D. He did not, however, breach the conditional suspended sentences as they were imposed after the occurrence of the offences that are the subject of this appeal.

1. As noted earlier, the appellant was aged between 29 and 30 years old when he committed the offences. He was 32 at the time of sentencing.
2. The appellant suffered significant trauma in his childhood. He is the older of two sons from his parents' union. He also has two older half‑brothers from a prior relationship of his mother's. His parents separated when he was about 4 years old, and he and his brothers remained in the care of his father. His father was often wheelchair‑bound due to McArdle's disease, a rare muscular disorder in which the muscles do not metabolise glycogen, leading to fatigue, muscle stiffness, weakness, cramping and pain. The appellant has also been diagnosed with this condition.
3. The appellant's father repeatedly sexually and physically abused the appellant and his brothers. He also allowed other men and women to abuse the boys sexually and physically. The details of this abuse were included in a court‑ordered psychological report and were not in dispute. It is unnecessary to repeat those details here. It is sufficient to note that the appellant was the subject of severe, repeated and degrading abuse for several years. He was removed by child protection authorities when he was 12.
4. The appellant's father was imprisoned for the sexual offences relating to the appellant and his brothers, and subsequently died in prison. The appellant has not maintained a relationship with his brothers.
5. During the period the appellant was in the custody of his father he was prevented from attending school and remained unaware that the abuse was not normal. After being in foster care for six months, the appellant and his brothers were placed with their mother. The appellant's mother had many personal difficulties of her own, including prescription medication misuse and mental health issues. The appellant lived with his mother until he was 18 and continues to have a close relationship with her.
6. The appellant attended three primary schools. He completed years 1 and 2 and was then 'home schooled' by his father, in an attempt to hide the sexual and physical abuse. He rarely completed homework and his father would submit schoolwork on his behalf. After being removed by child protection authorities, the appellant attended his third primary school but, due to his lack of formal schooling, he was required to repeat year 7. He then attended several high schools due to frequent home relocations, suspensions and expulsions. He struggled with schoolwork and was victimised by peers, who viewed him as being different. Although he completed year 10, he failed most subjects and has some continuing limitations with literacy and numeracy. However, to his credit, he was able to complete certificates as an education assistant and hospital-service/patient-care assistant. He also commenced, but did not complete, another certificate in community service work.
7. The appellant has worked in various jobs since the age of 16. These include in a butcher shop, an abattoir, as a gardener, a driver and a waiter. He has also worked in aged care facilities and hospitals. He has worked as an education assistant, at times with special needs children. He has reported having worked in five schools, with his longest period of employment being for about 12 months. Since the age of 28 or 29, he has not been in regular employment and has received a disability support pension due to mental health issues.
8. The appellant has a criminal record. The only matters of relevance in that record were the convictions on 3 July 2020 for possessing child exploitation material and using an electronic communication with intent to expose a person under the age of 16 years to indecent matter.

1. A court-ordered psychologist's report notes that, due to the appellant's traumatic childhood experiences, he was more sexually aware than usual from a young age. His views about sexual matters and relationships became skewed as result of those experiences.
2. As an adult, the appellant has had numerous sexual partners and admits to using sexual activity to obtain sexual gratification and as a negative coping mechanism. He also admits that he has engaged in sexual activity with other children in addition to the two victims of this offending.
3. The appellant has often played a dominant role in sexual behaviour, and the psychologist says that this is likely to be a means by which he acquires a sense of power and control over others, particularly in the context of his feelings of powerlessness and lack of control during childhood. He identifies as pansexual (that is, having an attraction towards a person, regardless of their biological sex, gender or gender identity). However, he admitted to the psychologist a current sexual interest and attraction to boys aged 14 to 18 years. Prior to the offences relating to D, the appellant had never engaged sexually with girls or women.
4. As regards mental health issues, the appellant has engaged in significant self‑harm since the age of 9. He reported that, from a young age, he experienced depression, anxiety and trauma symptoms. He had experienced visual and auditory hallucinations when stressed, as well as sleep disturbance, low confidence, poor self‑esteem and self‑loathing. He reported being diagnosed with attention deficit hyperactivity disorder in primary school and being prescribed medication for this disorder for a period. He also reported that he was diagnosed with depression, anxiety, suicidal thoughts, post-traumatic stress disorder and emerging borderline personality disorder when aged 14. He was hospitalised on a number of occasions from his mid‑20s until 2019. He engaged in some counselling as a child, and as an adult whilst a psychiatric outpatient. This counselling does not appear to have addressed his sexually deviant thinking.
5. The appellant has used opioid prescription medications since the age of 18 and reports being addicted to them. He has used alcohol since the age of 19, although he did not consider that this had been problematic. He had used cannabis a few times when aged 24 or 25, and then had subsequently abstained. However, prior reports refer to more frequent and daily use of cannabis, and he was convicted of cultivating cannabis in 2019. He denied that substance use was a factor in his current or past sexual offences.
6. The appellant said that he met B online and later befriended the boy's parents. He justified to himself that he was helping B. As regards D, the appellant said he had known her from when she was about 7 years old. He again took the view that he had been helping D and her mother, who he knew trusted him to keep D safe. He was aware that D looked up to him and wanted assistance and support. He admitted to being fully aware of the age of both B and D at the relevant times. He also admitted to sexually offending against D whilst proceedings were continuing for the prior sexual offences relating to B. He admitted that when he was interviewed for the purposes of that sentencing, he had not been honest about his sexual behaviour or his sexual interest in children. He said that he regretted his offences, and he displayed some understanding of the likely impact on the victims.
7. The psychologist reported that the appellant's sexual offences are indicative of his sexual interest in, and attraction to, children. His offences are a result of a desire for sexual contact and gratification, sexual preoccupation, cognitive distortions, unmet sexual, emotional and physical needs, poor impulse control, poor judgment, dishonesty and predatory behaviour, poor coping skills and a lack of consequential thinking. The risk of further sexual reoffending was assessed as being in the well above average risk category.
8. The psychologist considered that there were problems with manageability of that risk, given the appellant's poor planning skills and poor response to treatment and supervision. The appellant was assessed as having a number of future treatment needs. In particular, the psychologist expressed the view that the appellant may benefit from processing his history of childhood abuse.

1. Both B and D provided victim impact statements.
2. B had also been offended against by four other adult males prior to meeting the appellant. His victim impact statement relates to the whole of that offending and not only that of the appellant. For that reason it must be treated with a degree of caution. The impact described by B cannot necessarily be attributed to the offending by the appellant.
3. B refers to significant adverse effects on his personal life, schooling and mental health. He says that he has suffered difficulties in sleeping. He has thoughts of hatred and revenge. His personal relationships have been affected, including those within his family. He is socially isolated, does not feel safe and requires extra security.
4. D states that the appellant had known her since she was 6 years old because he had taught guitar to her brother. She felt that she could trust him and did not realise that his behaviour was wrong at the time. When she came to realise this, she felt that she could not reach out to her mother, who had troubles of her own. D found the sudden disclosure of the offences confronting and felt that she could not tell the police what had happened because she was traumatised. At that time, she still cared for the appellant and wanted to help him. However, she later came to realise that the relationship should not have happened, and she became angry and confused. She believes that she was an easy target because of her vulnerability. She self‑harmed and began to smoke cannabis. She has attended counselling and has trouble sleeping.

1. The sentencing judge set out the facts, the appellant's personal circumstances and the impact on the victims in detail. His Honour referred to the fact that he needed to impose a penalty that incorporated elements of personal and general deterrence. He referred to the need to protect vulnerable young children, and that matters personal to the appellant carried less weight in respect of offences of this nature.[26]
2. The sentencing judge identified the following aggravating factors:
   1. That there were two complainants.
   2. The significant age difference between the appellant and each of the complainants.
   3. That the appellant had formed a relationship with the family of each of the complainants and the offending involved breaches of trust.
   4. That D was sexually inexperienced prior to the offending occurring and, on one occasion, had suffered an infection by reason of the offending conduct.
   5. That the offending in each case was repeated and the cooperation of the complainants was secured by friendship, in the case of B, and what she believed to be a relationship, in the case of D.
   6. That each of the complainants has been adversely affected as reflected in their victim impact statements.[27]
3. As to mitigation, the sentencing judge referred to the fact that the appellant had pleaded guilty and recognised the appellant's acceptance of responsibility and remorse. The pleas were entered at a relatively early stage and his Honour considered that a 20% discount was appropriate, pursuant to s 9AA of the Sentencing Act 1995 (WA).[28]
4. In relation to the appellant's childhood trauma, the sentencing judge said that he would have regard to the appellant's 'totally dysfunctional childhood' as set out in the sentencing submissions and in the psychological report. He said that this trauma impacted on the appellant's offending and would also make him a more vulnerable prisoner. His Honour said that the sexual abuse that the appellant suffered as a child had, no doubt, been material in forming his beliefs and attitudes. As against that, his Honour noted that the appellant was at well above average risk of reoffending.[29]
5. The sentencing judge referred to the totality principle and noted that if the individual sentences imposed for each of the nine counts were added together the total sentence would be excessive. For this reason, he ordered that some of the sentences were to be served cumulatively and some concurrently. The sentences imposed were as follows: [30]

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code

Indecent dealing with a child over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Code

10 years 6 months' imprisonment, backdated to commence on 12 December 2020. There was an order that the appellant be eligible for parole.

1. There is one ground of appeal. It is as follows:[31]
   1. The total effective sentence infringes the first limb of the totality principle;

1.1 The learned judge erred by making counts 2, 3 and 9 cumulative.

1. There is no suggestion that any of the individual sentences were manifestly excessive. Rather, the appellant submits that the total effective sentence of 10 years 6 months' imprisonment is too severe and does not bear a proper relationship to the overall criminality of the offending.[32]
2. The appellant submits that there is 'no direct explanation' as to the features of the offending that led to counts 2, 3 and 9 being ordered to be served cumulatively. The suggestion is that it was incumbent upon the sentencing judge to explain why some sentences were ordered to be served cumulatively and others concurrently, over and above the need to ensure that the total effective sentence bore a proper relationship to the overall criminality.[33]
3. The appellant submits that, whilst it is accepted that personal circumstances have less weight in matters of this kind and that the primary sentencing considerations are punishment of the offender, specific and general deterrence, and the protection of vulnerable children, the personal circumstances of the appellant indicated he had significant mental health issues, a history of severe trauma involving sexual abuse as a child, and a physical disability with a likely outcome of becoming wheelchair‑bound in the future.[34]
4. The appellant refers to two cases: LYN v The State of Western Australia[35] and JDF v The State of Western Australia.[36] LYN is cited in support of the proposition that the mitigating effect of a plea of guilty should be reflected in the total effective sentence as well as the individual sentences. As to JDF, in which a total effective sentence of 8 years 6 months' imprisonment was held not to infringe the first limb of the totality principle, it is said that that case shows that comparable cases have resulted in a pattern of lesser total effective sentences than the sentence imposed on the appellant.[37]

1. The respondent submits that there are relatively few decisions that can truly be described as comparable to the present case - that is, cases involving offences against s 321 of the Code. The respondent refers to WNO v The State of Western Australia[38] and Underwood v The State of Western Australia.[39] The respondent submits that neither these cases, nor those referred to by the appellant, support a conclusion that the total effective sentence imposed on the appellant infringes the first limb of the totality principle.[40]
2. The respondent notes that in JDF the court referred to several cases which had at least some features comparable to the offending in that case. Those cases are RDC v The State of Western Australia;[41] RFS v The State of Western Australia;[42] CJF v The State of Western Australia;[43] APC v The State of Western Australia;[44] SG v The State of Western Australia;[45] ARK v The State of Western Australia;[46] DKA v The State of Western Australia;[47]and The State of Western Australia v PJW.[48] The respondent submits that the majority of those cases involved a single victim. In three of those involving a single victim, the total effective sentence was greater than that imposed on the appellant. The cases involving multiple victims involved either sentences significantly greater than that imposed on the appellant or had unusual mitigating circumstances leading to a lesser sentence.[49]

1. The totality principle is well understood and is summarised in a frequently cited passage from Roffey v The State of Western Australia:[50]

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

1. The approach as to the use of comparable cases is also well established. The following principles were distilled in The State of Western Australia v PJW:[51]
   1. The guidance afforded by comparable cases is flexible, rather than rigid.
   2. The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not, of itself, establish that the sentencing discretion has or has not miscarried.
   3. The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly inadequate or excessive and whether the total effective sentence infringes the first limb of the totality principle.
   4. A range of sentences for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
   5. When an appellate court dismisses an appeal against sentence or resentences an offender, the decision does not of itself fix the upper or lower limit of the range.
   6. There is no tariff for sexual offences against children.
   7. The sentence to be imposed in a particular case depends on the individual facts and circumstances having regard to the maximum penalties and all relevant sentencing factors.
2. In VIM v The State of Western Australia,[52] this court recognised a range of sentences of between 6 years 8 months' imprisonment and 12 years 8 months' imprisonment for offending involving frequent or prolonged sexual offending against children. In JJR v The State of Western Australia,[53] this court recognised that there has been a firming up of sentences since VIM. In JJR, the court reviewed several cases decided since VIM, including cases involving single and multiple victims. The court identified a range of sentences of between 7 years' imprisonment in JAW v The State of Western Australia[54] and 16 years' imprisonment in ERA v The State of Western Australia.[55]
3. That range of sentences reflects not only the wide range of factual circumstances, but that the maximum penalties for sexual offences involving children vary significantly, with offences involving children under the age of 13 or where the child is a lineal descendant of the offender attracting higher maximum penalties than those involving children over 13 and under 16 years of age who are not lineal descendants.
4. Personal and general deterrence and the protection of vulnerable children are the most important sentencing factors for offences of this nature. Matters personal to an offender are usually of less weight, though not entirely irrelevant.[56]
5. The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender and those effects do not diminish with the passage of time or repeated offending. However, the effects of profound childhood deprivation may point in different directions. For example, they may diminish the offender's moral culpability but may also increase the importance of protecting the community from the offender's criminal behaviour. Those conflicting purposes of punishment must be weighed in the balance.[57]
6. Protection of the community is a material factor in fixing an appropriate sentence. However, a sentence cannot be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. There is a distinction in principle between an exercise of sentencing discretion having regard to the protection of society among other factors, which is permissible, and an extension of a sentence merely to effect preventative detention, which is not.[58]
7. The proper application of sentencing principles requires that the sentence imposed reflect the value of any pleas of guilty. This applies both to the individual sentences and the total effective sentence. In LYN this court said:[59]

It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence. That is particularly so in a case involving sexual offending against child complainants. The process of giving evidence of such offences is often re-traumatising and damaging for the victims. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process. This court has previously recognised the appropriateness of a substantial discount for a plea of guilty in cases of sexual offending against children. (citations omitted)

1. The offending in this case involved some significant aggravating features. In particular, (1) there were two victims, (2) both victims were vulnerable, (3) there was a significant age difference between the victims and the appellant, (4) in both cases, the appellant befriended the victims and their families, and the offending involved a breach of trust, and (5) the offending against the second victim, D, occurred whilst the appellant was on bail for earlier offences.
2. On the other hand, the appellant had some significant mitigating factors. He pleaded guilty at a relatively early stage and had expressed remorse for his conduct. His pleas had spared the victims the necessity of giving evidence, avoided a trial and brought the proceedings to a conclusion. The value of those pleas should have been reflected not only in the individual sentences but in the total effective sentence. Whilst the appellant had not been honest about his conduct or sexual behaviour when dealt with for the prior offences, he was completely frank when dealt with for these offences and was open with the psychologist. Further, whilst personal factors are usually accorded lesser weight, the appellant's history of childhood trauma was relevant. It explained, without justifying, his sexual conduct and was relevant in assessing his moral culpability.
3. As regards the appellant's risk of reoffending, protection of the community was a relevant consideration in sentencing. However, that consideration could not justify the imposition of a sentence that was higher than was proportionate as a punishment for the offences.
4. As noted, no challenge is made to the individual sentences. The challenge is confined to the total effective sentence and the orders that three of the sentences be served cumulatively. Some accumulation of sentences would be expected in circumstances where the offences occurred at different times and involved two different victims. The real question is whether the end result produced a sentence that was disproportionate after taking into account all of the relevant factors.
5. In considering comparable cases, we begin with those referred to by the parties.
6. In LYN, the appellant pleaded guilty a week before trial and was sentenced to 10 years 3 months' imprisonment for nine offences committed against two of the appellant's daughters. The sentences for the individual offences ranged between 2 years' and 4 years 6 months' imprisonment. The offending in LYN involved offences of sexually penetrating or indecently dealing with a lineal relative under 16 years, which carried statutory penalties of 20 years and 10 years, respectively. The appellant in that case had previously been convicted of five offences against another daughter and sentenced to 4 years' imprisonment. The offences the subject of the appeal all occurred before the offending against the other daughter was disclosed. There had been no reoffending after the appellant served the earlier sentence, and the appellant was found to be at low risk of reoffending. The offences to which the appeal related occurred when the victims were between 4 and 9 years of age and 4 and 11 years of age respectively.[60]
7. An appeal against the sentence in LYN was allowed, essentially because the total combined sentence of 14 years and 3 months failed to properly reflect the mitigating effect of the pleas of guilty and the rehabilitative effect of the appellant's prior incarceration. The court found that a total effective sentence of 12 years' imprisonment for the whole of the offending was appropriate. To achieve that outcome the total effective sentence for the offences then before the court was reduced to 8 years.[61]
8. Having regard to the age of the victims and the relationship of the offender to the victims, the offending in LYN was significantly more serious than the appellant's offending. Furthermore, the maximum penalties for the offences committed in that case were higher. Whilst in both cases the offenders pleaded guilty, in LYN the pleas were entered at a very late stage. The appellant in LYN did not have a history of childhood deprivation and trauma. The total sentence imposed on the appellant does not sit comfortably with that imposed in LYN. The greater risk of reoffending in the appellant's case does not adequately explain the respective sentencing outcomes.
9. In JDF, the appellant was convicted after trial of five counts of sexually penetrating the victim. Three of the offences occurred when the victim was under 13, and two when the victim was between 13 and 16. The victim was from a dysfunctional family and was in the care of the appellant from the age of 12. He began to molest her soon after she began living with him. The counts were representative of a wider course of conduct. The appellant maintained a stance of denial and claimed that the victim had fabricated the allegations to obtain money. The individual sentences ranged between 3 years 6 months' imprisonment and 5 years' imprisonment, and the total effective sentence was 8 years 6 months' imprisonment. Leave to appeal on a ground that the total sentence infringed the first limb of the totality principle was refused.[62]
10. There are obvious differences between JDF and the appellant's case. In particular, JDF involved one victim and five offences. On the other hand, the victim in JDF was younger, the offences were representative of a course of conduct and three of the offences attracted a higher maximum penalty. Furthermore, the offender in JDF did not plead guilty, express any remorse or acceptance of responsibility and did not have a history of childhood trauma. Allowing for those differences, the outcome in JDF suggests that the appellant's total sentence is, at least, very high in comparison.
11. In Underwood, the appellant pleaded guilty to nine offences committed against two victims. One count involved indecently dealing with a child under 13 years, and the remainder of the charges involved indecently dealing with, or sexually penetrating, a child aged 13 to 16 or using an electronic communication to expose a child to indecent matter. The offending occurred over a period of about four months. One of the victims was aged 8 and the other was aged 13. The appellant was sentenced to a total effective sentence of 9 years 6 months' imprisonment. Leave to appeal against the total effective sentence was refused.[63]
12. In Underwood the appellant suffered a deprived childhood, including being the victim of sexual abuse. He was a friend of the parents of each of his victims and the offences involved a breach of trust. He was assessed as being of well above average risk of further sexually offending. In Underwood, four of the offences involved penetration but the penetration offences were against only one of the victims.[64] Thus in several respects the circumstances bore some similarities to the present case. However, the victims in Underwood were younger, one appreciably so, and, despite his plea of guilty, the appellant maintained a stance of denial in respect of one of the more serious penetration offences. Given that the appellant in this case pleaded guilty at an early stage, fully accepted his responsibility, expressed remorse and was frank with the psychologist regarding his history and sexual inclinations, the imposition of a higher total sentence in this case is difficult to reconcile with Underwood.
13. In WNO, the appellant was found guilty after trial of 12 sexual offences against his 14-year-old niece. Three of the offences were sexual penetration offences and the others were indecent dealing offences. The offences occurred over a 5 day period when the victim's parents were overseas. The offending involved, in some instances, verbal and physical aggression. Leave to appeal against a total effective sentence of 6 years 9 months' imprisonment was refused.[65]
14. The respondent submits that the offending in WNO was significantly less serious that the appellant's offending against D and that this supports a conclusion that it would have been open to the sentencing judge to impose a greater sentence than that imposed in WNO in respect of the offences relating to D before considering totality with the offences against B.[66]
15. Whilst it is true that the offending against D involved more acts of sexual penetration and continued for a longer period, it was not accompanied by the aggravating factor of verbal and physical aggression that was present in WNO. For this reason, we would not accept the suggestion that WNO involved significantly less serious offending than the appellant's offending against D in the present case. When the appellant's pleas of guilty are taken into account the difference between the sentences is greater than would be expected, even allowing for the fact that there were two victims in the appellant's case. Furthermore, the totality question is not one that involves dividing the total offending into sub-sets and deciding what the appropriate sentence is for each sub-set of offences and only then considering totality. Totality is concerned with ensuring that the total effective sentence is proportionate to the overall criminal conduct.
16. As regards the cases referred to at [68], none of them are truly comparable to the present case. In almost all of them the offenders were convicted after trial and, thus, were not entitled to any discount under s 9AA of the Sentencing Act. In most of them the victims were younger than the victims in this case. In many of them the offending was accompanied by threats, violence or intimidation. RFS is the one case in that group where there was an early plea of guilty, cooperation with the police and remorse. That case involved 26 sexual offences in relation to six child victims between the ages of 7 and 16, which had occurred over a 15-year period. The offences in that case did not include any instances of penile penetration. On appeal the appellant was sentenced to a total effective sentence of 7 years and 6 months' imprisonment.
17. In MHE v The State of Western Australia,[67] Mitchell and Beech JJA summarised the sentences imposed in a number of cases involving sexual offending against children. It is useful to repeat relevant parts of that summary here, as consideration of those cases strongly suggests that the sentence imposed in the present case is erroneously high. As regards cases of sexual offending in which total effective sentences of between 10 and 12 years were imposed after pleas of guilty their Honours referred to:[68]
    1. EXF v The State of Western Australia,[69] in which this court dismissed an appeal against the imposition of a total effective sentence of 11 years 6 months' imprisonment. There were 14 counts of indecent dealing against a child of 13, including cunnilingus, fellatio and requiring the victim to masturbate the offender to ejaculation. The offences charged reflected a course of conduct over about six years against the offender's three stepdaughters, two of whom were aged less than 10 at all material times. The offender pleaded guilty at a very late stage.
    2. MMC v The State of Western Australia,[70] in which this court dismissed an appeal against the imposition of a total effective sentence of 11 years' imprisonment. There were four complainants, three of whom were the offender's de facto daughters. The offender pleaded guilty to 16 offences, of which five were unlawful carnal knowledge, four were penile penetration of the vagina and the remaining were, variously, digital penetration, cunnilingus, touching the complainant's breast or attempted penile/anal penetration. The offending against two of the complainants was representative and, in the case of one complainant, extended over almost three years.
    3. LJH v The State of Western Australia,[71] in which this court sentenced the offender to a total effective sentence of 10 years' imprisonment for a variety of sexual offences against a single 14‑year‑old to 15‑year‑old complainant, who was his de facto child. The offender pleaded guilty to nine counts of penile/vaginal penetration, as well as 17 counts of other sexual offences, mostly involving indecently recording of a de facto child. The offending extended over a period of almost two years.
18. As regards cases where total effective sentences in the region of 12 to 13 years' imprisonment have been imposed after pleas of not guilty, their Honours referred to:[72]
    1. MAS v The State of Western Australia[:]7373 MAS v The State of Western Australia [2012] WASCA 36. (12 years; 25 counts, including penile/vaginal penetration, penile/anal penetration, fellatio and cunnilingus, without consent in fact; the offending extended over seven years against the offender's de facto daughter, who was aged between 11 and 18 years; at times threats and violence were used; when she became pregnant the offender insisted she have an abortion).
    2. ARK v The State of Western Australia:[74] (12 years; nine counts, including five counts of penile/vaginal penetration; representative of a course of offending over about four years from when the complainant was about 11 years old; the offender was physically aggressive and used manipulation and intimidation to ensure the complainant's continued compliance with his demands).
    3. JJR v The State of Western Australia:[75] (12 years; 10 counts, four of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 9 and 11 years and the other between 7 and 12 years; the offending extended over about seven years; the sentence of 12 years' imprisonment was described as 'undoubtedly severe').
    4. AIM v The State of Western Australia:[76] (12 years; 13 counts, six of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 7 and 8 years, the other between 4 and 7 years; the offences were representative and extended for about three years against one complainant and about 20 months against the other).
    5. CJF v The State of Western Australia:[77] (12 years; six counts, four of which were sexual penetration, including penile/vaginal penetration and digital penetration; the offences were representative of ongoing sexual abuse occurring over an extended period commencing when the complainant was 9 years old; the offender used violence and threats).
    6. KSN v The State of Western Australia:[78] (12 years; 15 counts, 14 of which were sexual penetrations, including penile/vaginal penetration, penile/anal penetration, fellatio, cunnilingus and digital penetration; the offences were representative of offending over about four or five years against the complainant when she was aged between 11 or 12 and 16 years; the offender used threats, forceful behaviour, alcohol and cannabis to facilitate the sexual activity).
    7. SG v The State of Western Australia: (12 years; 13 counts, 11 of which were sexual penetrations, including fellatio, digital penetration and penile/vaginal penetration, one of which resulted in pregnancy; the offending was representative of a course of conduct over four to five years while the complainant was aged between 11 and 16 years; the offender used bribery and promises together with intimidation and physical coercion to obtain sexual favours).
19. Reference was also made to The State of Western Australia v FJG,[80] in which this court imposed a total effective sentence of 10 years 6 months' imprisonment for 14 sexual offences, including offences of penile/vaginal penetration, fellatio, digital penetration and vaginal penetration with a device. The offences were committed against the offender's two complainant daughters, one of whom was aged between 10 and 14 years, and the other between 8 and 14 years. The offender pleaded guilty to five of the offences. The offences were representative of a course of persistent sexual abuse over several years.
20. In MHE itself, the offender was convicted on his pleas of guilty of 87 offences against his three de facto children. The offences included 21 offences of sexually penetrating a child who he knew to be his de facto child. The offending occurred on 14 occasions over a period of just over a year. The victims were aged 8, 11 and 15, although all but one of the offences related to the two older children. An appeal against a total effective sentence of 12 years 6 months' imprisonment was allowed and a total effective sentence of 10 years' imprisonment was imposed on re-sentencing.
21. The cases referred to at [93] to [96] are generally more serious in their factual circumstances, many of them markedly so, and many involved offences with higher maximum penalties. The sentences imposed (after taking into account the presence or absence of pleas of guilty) in those cases support a conclusion that error must be implied from the total sentence imposed on the appellant. In undertaking this comparison we are mindful of what Quinlan CJ said in MHE:[81]

As with many discretionary decisions, the sentencing of an offender for sexual offences against children is a difficult exercise. All such offending is inherently serious and engenders moral revulsion.

It may seem strange to some, in those circumstances, for the court to embark on a process of placing a particular offender's conduct within a scale of severity of such conduct generally, all of which is deplorable. But that is what the law requires the court to do, both at first instance and, where necessary, on appeal. The court's duty, in that regard, requires a careful consideration of all relevant sentencing principles, together with whatever guidance may be afforded by consideration of comparable cases.

1. Comparable cases are one factor to take into account in determining whether the totality principle has been breached. Other considerations are the circumstances of the offences and the personal circumstances of the offender. Whilst the offences were serious and required the imposition of immediate terms of imprisonment, the victims were older than in some cases and there was no use of threats, violence or coercion. The fact that the appellant pleaded guilty at an early stage was an important consideration. It is difficult to reconcile the total sentence with one that properly reflects the value of those guilty pleas. Had there been pleas of not guilty, a sentence properly reflecting the criminality of the appellant's offending would, in our view, have been broadly of the order of the sentence ultimately imposed.
2. Taking all relevant factors into account the total effective sentence of 10 years 6 months' imprisonment is disproportionate to the overall offending. That sentence fails to reflect the personal circumstances of the appellant, in particular his pleas of guilty, remorse and history of deprivation. The total sentence is unreasonable and unjust. The appeal should be allowed and the appellant resentenced.
3. It is necessary to deal with one other matter raised by the appellant. Contrary to the appellant's submissions, there is no requirement for a sentencing judge to give reasons which identify why certain offences, and not others, were made cumulative in order to arrive at an appropriate total effective sentence. The obligation on the sentencing judge is to impose an appropriate sentence for each offence and to structure the sentences to achieve a total effective sentence which bears a proper relationship to the overall criminality. That can be achieved by adjusting individual sentences or by ordering that some sentences be cumulative, partly cumulative or concurrent (or by doing both). In any event, the complaint in this regard made in the written submissions falls outside the scope of the ground of appeal.

1. The facts of the offending and the personal circumstances of the appellant have been set out in detail earlier. The same discount of 20% for pleading guilty should be allowed. In re-exercising the sentencing discretion, we consider the individual sentences imposed by the sentencing judge to be appropriate. Having regard to all relevant sentencing factors, in our view the appropriate total sentence is one of 8 years 6 months' imprisonment.
2. We would give effect to those conclusions by reducing the sentence on count 2 to 4 years' imprisonment and setting aside the order that the sentence on count 9 be cumulative and in lieu thereof ordering that that sentence be concurrent. All other individual sentences and orders for cumulation or concurrency are unaffected.
3. We would make the following orders:
   1. Extension of time allowed.
   2. Leave to appeal granted.
   3. Appeal allowed.
   4. The sentence on count 2 be set aside and in lieu thereof impose a sentence of 4 years' imprisonment on that count.
   5. The order that the sentence on count 9 be cumulative be set aside and in lieu thereof order that that sentence be served concurrently.

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

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

[36] JDF v The State of Western Australia [2016] WASCA 221.

[38] WNO v The State of Western Australia [2021] WASCA 141.

[39] Underwood v The State of Western Australia [2018] WASCA 189.

[41] RDC v The State of Western Australia [2012] WASCA 16.

[42] RFS v The State of Western Australia [2012] WASCA 58.

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

[44] APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59.

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

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

[47] DKA v The State of Western Australia [2015] WASCA 112.

[48] The State of Western Australia v PJW [2015] WASCA 113.

[50] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26] (McLure JA, Steytler P & Miller JA agreeing).

[51] The State of Western Australia v PJW [2015] WASCA 113 [36] - [39] (Buss JA, Martin CJ & Mazza JA agreeing).

[52] VIM v The State of Western Australia [2005] WASCA 233; (2005) 35 WAR 1.

[53] JJR v The State of Western Australia [2018] WASCA 51; 272 A Crim R 209 [102] (Martin CJ, Mitchell JA & Chaney J agreeing).

[54] JAW v The State of Western Australia [2016] WASCA 40.

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

[56] Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing) citing R v Wozencroft (unreported, Court of Criminal Appeal, WA, Library No 6606, 25 February 1987); PP v The State of Western Australia [2004] WASCA 144 [13] ‑ [14] (McLure J, Malcolm CJ & Murray J agreeing).

[57] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [47]; Peterson v The State of Western Australia [2019] WASCA 207 [52] ‑ [55] (Buss P & Mazza JA, Quinlan CJ relevantly agreeing).

[58] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472 ‑ 473 (Mason CJ, Brennan, Dawson & Toohey JJ).

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

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

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

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

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

[75] JJR v The State of Western Australia [2018] WASCA 51.

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

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

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

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

[80] The State of Western Australia v FJG [2012] WASCA 206.