GUE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 121 (20 September 2022)

Sexual penetration of a child of or over the age of 13 years and under the age of 16 years, by engaging in cunnilingus

1. The appellant appeals his sentence, advancing two grounds of appeal. The first ground alleges that the total effective sentence breaches the first limb of the totality principle, having regard to the duration of the offending, the age of the complainant, the lack of any threats, the objective seriousness of the offending and the trial judge's finding that the appellant's partner's poor condition was so exceptional as to be mitigatory.
2. The second ground asserts that, in light of fresh evidence as to the appellant's partner's deteriorating health, the total effective sentence imposed is manifestly excessive.
3. For the reasons that follow, neither ground of appeal is established. While we would grant leave to appeal on ground 1, we would refuse the application to adduce additional evidence and would dismiss the appeal.

1. The judge made the following findings as to the facts of the offending.
2. The complainant was born on 28 January 1993, and the appellant on 3 October 1951.[1]
3. When the complainant was 7 years old, the appellant and the complainant's aunt entered into a relationship.[2]
4. The aunt and the complainant's mother had a close relationship, by virtue of which the appellant, the complainant's aunt, the complainant, and her parents spent a lot of time socialising together.[3]
5. The appellant is an accomplished drummer.[4] At some point, the complainant expressed an interest in learning to play the drums, and both she and her mother asked whether the appellant would be willing to teach her.[5] The appellant agreed. The lessons spanned a period of about two years.[6]
6. The appellant also had a qualification in massage. He had given massages to various members of the complainant's family. As she had some muscle soreness following sport, the complainant asked the appellant to massage her. With the consent of the complainant's mother, these massages took place after drum lessons.[7]
7. The evidence at trial gave rise to some uncertainty as to when the drum lessons and massages began. The judge found that the drum lessons began in 2004 when the complainant was 11 years old. The massages began at some time while the complainant was still in primary school, at the latest in 2005 when the complainant was 12 years old.[8]
8. At some point after the massages began, being before the complainant left primary school and while she was still 12 years old,[9] the appellant began to groom the complainant to accept the appellant touching her in a sexual manner.[10]
9. The appellant then engaged in a pattern of sexual abuse in the following manner. The complainant, wearing an eye mask and covered by a towel, would otherwise be naked. The appellant would remove the towel and stimulate the complainant's clitoris with his hand until she orgasmed. On occasion, the appellant would massage her breasts.[11]
10. The judge could not say how often this offending occurred, other than to say it 'occurred on multiple occasions, and sufficiently often for it to have become a normal part of the massage for her, and for her not to think it unusual'.[12]
11. The judge also could not say how long this offending lasted, but found 'it was certainly many months and may have been as much as a year'.[13] She recognised that the appellant was only to be sentenced for the three offences of which he was convicted.[14]
12. On one occasion, the appellant digitally penetrated the complainant's vagina. He asked her whether she liked it, in response to which she said 'no, it hurt'. The appellant stopped. That is the offending the subject of count 1.[15]
13. On another occasion, after stimulating the complainant's clitoris, the appellant opened her legs wider than usual and performed cunnilingus, touching her clitoris. This is the offending the subject of counts 2 and 3.[16]
14. It was unclear when these particular offences occurred. Her Honour considered that 'at the very latest' the complainant was 13 years 'and a few months' old.[17]

1. The trial judge outlined the appellant's personal circumstances, which may be summarised as follows
2. The appellant is 69 years old.[18]
3. He married his first wife in 1976, and had three sons by that marriage. In 1999 the appellant and his first wife divorced.[19]
4. Prior to his retirement, the appellant was engaged in various business enterprises, and has worked as a professional musician since he was 15 years old. The appellant studied accounting for three years from 1968. From about 1972 to 1993, he owned and operated retail music stores. He owned and operated a number of coffee shops from the mid‑1980s to the mid‑1990s, and ran a band booking agency from 1999 to 2001. From 2001 to 2008 he was a property developer, after which he did part time maintenance work for a real estate company.
5. In 2000, the appellant began a relationship with the complainant's aunt, who had two adult daughters.[20] The appellant's partner's physical condition was the subject of a submission, a report, and a letter from Ms Natalie Williams, who described herself as the appellant's partner's full‑time carer. Based on that material, the judge made the following findings concerning the appellant's partner:[21]

(1) She suffered demyelination of the spinal cord some time ago.

(2) In 2014, she had a stroke.

(3) In 2020, she had a pacemaker implanted.

(4) As a result of these conditions, she has 'very significant ongoing physical disabilities'.

(5) The appellant's partner requires 'a great deal' of physical assistance in order to manage her life, including in relation to mobility, transfers, eating, and all other aspects of self-care. She is, to some extent, incontinent, and has difficulty talking.

(6) The appellant's role in enabling his partner to remain at her residence specifically, and to retain her independence more generally, is significant and she is dependent on the appellant, alongside her other support staff.

1. In more detail, her Honour said:[22]

I have been provided with the Cornwall House report dated 29 March 2021 from which it is apparent that [the appellant's partner] suffers from very significant ongoing physical disabilities as a result of these conditions and requires a great deal of physical assistance in order to manage her life. She requires a wheelchair for all mobility, one or two people to assist with transfers and to get into bed. She needs help with all aspects of self‑care. [She] is incontinent to some extent and needs help to eat and has difficulty being understood because of her difficulty talking.

Ms Williams says that [the appellant's partner] is currently dependent upon herself and you, although another carer had been hired so that you could leave the house. The Cornwall House report said you provided support some nights, but were not able to provide all night support. It does say that you complete all the shopping and manage the finances. And that whilst, as at March 2021, there were options for housing, [the appellant's partner] wanted to live at home and it appears to me that your role in that was significant - or enabling her to do that is significant.

1. On this basis, the judge concluded that this aspect of the appellant's personal circumstances was exceptional in that the effect of imprisonment on the appellant's partner had a mitigating effect on the appellant.[23] Her Honour added that the appellant will 'feel some distress that [he is] not able to continue to care for [his] partner ... which will also make it more difficult' for him.[24]

1. The judge described the offences as 'very serious instances of offences of their kind'.[25] Her Honour identified the following aggravating factors:

(1) The offences occurred after a period of grooming calculated to make the complainant receptive to abuse by the appellant.

(2) Each offence was part of a course of sexual offending against the complainant.[26]

(3) The large age disparity between the complainant and appellant (being 41 1/2 years).[27]

(4) The appellant's abuse of a position of significant trust, being that of an uncle.[28] The appellant's access to the complainant was by virtue of the trust reposed in him by the complainant's family.[29]

1. The brief physical pain experienced by the complainant as part of the events of count 1 was not an aggravating factor, given that the appellant ceased that aspect of the offending when the complainant informed him that he was causing her pain.[30]
2. While there was no threatening conduct, this was not of any particular significance given the appellant's grooming of the complainant.[31]

1. As already noted, the judge found that the effect of the appellant's imprisonment on the appellant's partner was a mitigating factor in the appellant's favour.

1. Her Honour went on to note the that the appellant had no criminal record and a long work history. As such, he could be regarded as a person of good character before the course of conduct which led to the offending. However, while a mitigating factor, her Honour noted this was not uncommon for persons charged with offences of these kinds.[32]

1. Her Honour ultimately did not consider age to be a 'particularly relevant factor', given the seriousness of the offending. While the appellant was nearly 70 years old at the time of sentencing, that was 'not a particularly advanced age' and there was no evidence suggesting it was likely that he would die in jail.[33] However, her Honour did note that serving a term of imprisonment at a 'relatively late age' may make the appellant's incarceration 'more difficult' for him.[34]
2. Her Honour did not consider the second limb of the totality principle was of particular relevance.[35]
3. The judge noted that, despite the appellant having a heart attack in 2015 and currently taking medication relating to cholesterol and blood pressure, he was not currently in poor health. There was no indication that any medical condition would worsen as a result of imprisonment.[36]

1. The judge found that there was 'little risk' of the appellant reoffending in light of his advanced age and the lack of evidence as to any offending conduct in the 14 years since the charged conduct had occurred.[37]
2. This finding reduced the relevance of personal deterrence.[38]

1. The judge considered that the appropriate sentence for each count was 3 years 6 months' imprisonment. Noting that counts 2 and 3 arose at the same time and in the same course of conduct, the judge observed that the terms on those counts would be concurrent with each other.[39]
2. Her Honour considered that a total effective sentence of 6 years 9 months' imprisonment properly reflected the criminality involved in the appellant's offending. As a result, her Honour ordered that count 2 be reduced to 3 years 3 months' imprisonment to be served cumulatively with count 1, with the sentence on count 3 to be served concurrently. The appellant was made eligible for parole.[40]

1. The appellant advances two grounds of appeal in the following terms:

(1) The overall total effective sentence of six years and nine months infringed the first limb of the totality principle given the criminality involved and matters referable to the appellant;

...

(2) In light of fresh evidence, being a report dated 2 February 2022, prepared by Senior Occupational Therapist Talitha Clements, the total effective sentence imposed was manifestly excessive.

1. Ground 2 is supported by an application for leave to adduce additional evidence. That application and the question of leave to appeal were referred to the hearing of the appeal.[41]

Ground 1: was the first limb of the totality principle infringed? Appellant's submissions

1. The particulars of ground 1 rely on the following matters in support of the contention that the total effective sentence breached the first limb of the totality principle:

(a) the overall duration of the offending;

(b) the age of the complainant;

(c) the lack of any physical threats or pain caused to the complainant;

(d) the objective seriousness of the criminality involved in the offending; and

(e) the trial judge's finding that the appellant's partner's condition and dependence on the appellant were, exceptionally, mitigatory.

1. The appellant's written submissions developed ground 1 essentially by reference to cases said to be comparable. While purporting to recognise the limits of comparable cases in the context of such an argument,[42] the appellant relies on WNO v The State of Western Australia,[43] JAW v The State of Western Australia,[44] Murphy v The State of Western Australia,[45] GGM v The State of Western Australia [No 2][46] and UGN v The State of Western Australia [No 2][47] in support of his contention. In summary, he submits that:

(1) The offending in WNO was more serious than in the present case both in its nature and extent so that the fact that they received the same sentence 'cannot be reconciled'.[48]

(2) The offending in JAW was 'plainly more serious' than in the present case so that the disparity of only 3 months 'can only be explained by a breach of the totality principle'.[49]

(3) The sexual offending in Murphy was more serious than in the present case so that the combined sentence for the sexual offending in Murphy (in which there was also an offence of attempting to pervert the course of justice, the sentence for which was to be served cumulatively) establishes a 'significant disparity' between the sentence in Murphy and in the present case.[50]

(4) the offending in GGM was 'more serious' than in the present case so that the disparity in total effective sentences of only 3 months 'demonstrates that the sentence imposed in the [a]ppellant's case breaches the totality principle'.[51]

(5) The offending in UGN was more serious than the appellant's offending in the present case.[52]

1. Further, the appellant emphasises that in none of these cases did the offender have the benefit of the mitigation of the exceptional nature relating to the appellant's partner in the present case.[53] Senior counsel for the appellant submitted that this distinguishing factor should have led to an appreciably lower sentence than is imposed in the 'ordinary run of these sort of cases'.[54]

1. For the reasons that follow, the appellant has not demonstrated that his total effective sentence infringed the first limb of the totality principle.
2. The legal principles governing appeals contending that the total effective sentence infringes the first limb of the totality principle are well known. They have been stated many times in this court, and in other courts.[55]
3. Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. 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 the sentencing discretion differently.
4. 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.
5. The range of sentences imposed in other cases does not establish the bounds of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
6. 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 bounds of permissible sentences.
7. The maximum sentence for each of the appellant's offences is 14 years' imprisonment, reflecting the seriousness of the offence.
8. The principles applicable to cases of intrafamilial child sexual abuse are well established. The primary sentencing considerations for such offences are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. Matters personal to an offender are ordinarily of less mitigatory weight than might otherwise be the case. Even where an offender is otherwise of good character, ordinarily, good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or on their perception of the offender.
9. There is no 'tariff' for offences of the kind committed by the appellant, or for sex offences generally, because of the great variation that is possible in the circumstances of the offending and the offender. The sentence to be imposed in a particular case depends upon its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. The same is true of the total effective sentence to be imposed in a particular case.
10. It is also well established that the provisions of the Criminal Code (WA) creating offences of which sexual penetration is an element do not create a hierarchy of sexual penetration. It is not to be assumed that one form of sexual penetration is necessarily more, or less, serious than another. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[56]
11. As we have explained, the appellant's submissions on ground 1 essentially rely on comparable cases. However, the submissions are framed in a manner that does not reflect the proper role of comparable cases and does not recognise the limits of the utility of comparable cases in cases of the present kind. That can be seen in the quotes set out in [43] above.
12. Comparable sentencing cases should be considered to ensure broad consistency and are one yardstick for the evaluation of whether error is to be implied from the sentencing outcome. The consistency sought by the exercise of appellate jurisdiction is consistency in the application of relevant legal principles, not numerical consistency. The observations of Mitchell JA in JJR v The State of Western Australia,[57] cited with approval in MHE,[58] are also pertinent:

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

1. In the context of sentences for child sexual offences, this court observed in CAND v The State of Western Australia:[59]

[B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion [LJH v The State of Western Australia [2016] WASCA 155 [81]; JJR [169]]. For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant.

1. When, in cases such as the present, an infringement of the first limb of the totality principle is alleged, an exercise of comparison with the total effective sentence under challenge and the facts and circumstances of cases said to be comparable is of limited utility. As Hall J noted in Pennetta v The State of Western Australia, in a passage that has been cited in many cases:[60]

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

1. As was explained in UGN v The State of Western Australia,[61] an infringement of the first limb of the totality principle is not established by reference to the outcome in a small number of cases. Moreover, in all of the cases at [43] above on which the appellant relies, leave to appeal was refused because the contention that the total effective sentence infringed the totality principle was not reasonably arguable. It is trite to observe that when this court dismisses an appeal against sentence its decision does not fix the upper or lower limit of the sentencing range. The position is all the more so when leave to appeal is refused. As Quinlan CJ observed in Pedro[62]i v Brown:62

Where a sentence is, in effect, not even arguably excessive, it can in no way provide a marker as to the upper limits of the proper exercise of discretion.

1. When these principles are applied, consideration of comparable cases does not support the appellant's claim of implied error. Taking into account the various similarities and differences between the present case and the offending and offenders in the comparable cases, the sentence imposed in the present case is broadly consistent with customary sentencing standards for offending of this kind.
2. As the judge identified, the appellant's offending had serious features. The appellant groomed the complainant in order to facilitate his abuse of her. His offences were not isolated; they were part of a course of sexual offending against the complainant. There was a very substantial age disparity between the complainant and the appellant. Being a girl of 12 or 13 years of age at the time of the offending, the complainant was vulnerable. The appellant abused his position of trust as the partner of the complainant's aunt who was treated by her as an uncle and who was trusted to teach her drumming. The offending has, as would be expected, caused ongoing emotional distress for the complainant.
3. The appellant's submissions in support of ground 1 rely heavily on the mitigatory effect of his partner's debilitating health problems. Given the seriousness of the appellant's offending, that mitigating factor could be given only quite limited weight. The general principle is that hardship caused to an offender's family by imprisonment of an offender will only be taken into account in the sentencing process in exceptional cases. In all cases, whether and to what extent it may be taken into account depends upon the gravity of the offence and the circumstances of the case. The more serious the offence, the less the court has the capacity to mitigate punishment having regard to hardship to an offender's family. This is particularly so in a case, such as the present, where the predominant sentencing considerations are general and personal deterrence.[63]
4. Having regard to:

(1) the maximum penalty for the appellant's offences;

(2) the facts and circumstances of the offences;

(3) the vulnerability of the complainant and the appellant's abuse of his position of trust;

(4) the general pattern of sentences for offences of this kind;

(5) the importance of denunciation and personal and general deterrence; and

(6) all aggravating and mitigating factors,

even giving full weight to the mitigatory effect of the health condition suffered by the appellant's partner, the total effective sentence imposed on the appellant cannot be said to be unreasonable or plainly unjust. In our view, it was open to the trial judge, on a proper exercise of her Honour's discretion, to impose the sentences that were ultimately imposed.

1. As already noted, in the sentencing proceedings before the trial judge, the appellant relied on a report prepared by Cornwall House dated 29 March 2021. In support of ground 2, the appellant seeks leave to adduce, as additional evidence on appeal, an updated report from Cornwall House prepared by the same author. The appellant submits that the updated report demonstrates that the appellant's partner's condition has deteriorated. More specifically:

(a) for the period between 2020 and December 2021, she was working with a therapist to improve her physical skills, but, since January 2022, she has been in hospital for 24 days, resulting in her 'losing some of her physical gains, requiring an increase in physical support particularly during transfers';[64] and

(b) in relation to her psychosocial/behavioural condition, the report notes that she is upset because she cannot see the appellant.

1. The appellant submits that the trial judge could not have foreseen that the condition of the appellant's partner would worsen. The appellant submits that this case is analogous to HJT v The State of Western Australia in which this court intervened on the basis of additional evidence as to the effect of the offender's incarceration on his son, who suffered from autism.
2. In light of the additional evidence, the appellant submits that the sentence imposed should now be considered manifestly excessive, so that the absence of the additional evidence demonstrates a miscarriage of justice.

1. The principles applicable to the receipt of additional evidence on appeal, and the entitlement of this court to intervene on the basis of additional evidence, were recently stated in Wellstead v The State of Western Australia.[65] The following summary is drawn from that more detailed statement.
2. This court's power to intervene is not ordinarily enlivened in the absence of a material error of fact or law which can be identified in the reasons for sentence, or which can be inferred from an outcome which is unreasonable or plainly unjust. Once error is established, this court will, unless it remits the matter to the sentencing court, decide for itself the sentence which it considers to be appropriate. However, even where no error of the kind referred to in House v The King[66] is established, this court may interfere to avoid a miscarriage of justice from arising. The High Court in Betts v The Queen[67] recognised, in a similar statutory context to the present, that the New South Wales Court of Criminal Appeal has the flexibility to receive new evidence when it is necessary to do so in order to avoid a miscarriage of justice.
3. A sentencing judge cannot ordinarily be said to have erred in proceeding in a manner contrary to, or without having regard to, evidence which was not before the sentencing court. A miscarriage of justice may arise from the absence of material evidence before the primary court. However, it is clear that such a miscarriage will not arise in all cases, and that the identification of a miscarriage must be undertaken, consistently with the nature of an appeal, in a manner which does not 'have the practical effect of obliterating the distinction between original and appellate jurisdiction'.[68]
4. Evidence of events subsequent to the time of sentencing may be received by an appellate court to show facts relevant to the sentencing process which were in existence at the time of sentencing, but either not known to the sentencing judge or not properly appreciated at the time. That may occur, for example, where a mental health impairment which existed prior to sentencing is diagnosed or its significance is appreciated only after sentencing has occurred. A miscarriage of justice may arise from the absence of evidence of that kind at the sentencing hearing. However, it must always be borne in mind that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed and which are unrelated to facts in existence at the time of sentencing. It is not the function of this court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual.
5. For the reasons in [62] above, given the seriousness of the appellant's offending, the mitigatory effect of his partner's debilitating health problems can be given only quite limited weight.
6. Contrary to the appellant's submission, the position in HJT v The State of Western Australia is not, in any relevant sense, analogous to the present case.
7. In HJT, the court found that the additional evidence demonstrated that the sentencing judge was not properly informed of very important facts including the very significant impact of the appellant's incarceration on his son's condition. The court found that the additional evidence showed that the son's condition had very significantly regressed and that it could properly be inferred that the regression had been caused by the offender's absence for which the son, unjustifiably, blamed himself. The son's learning and speech, sleep patterns and ability to be disciplined and controlled had all badly deteriorated and the son had begun to self‑harm. Consequently, the court considered that there was a substantial risk that the son's development may be irreparably impaired unless the regression he had experienced since the offender's imprisonment was not arrested.[69]
8. Those conclusions have no parallels in the present case. Deterioration in the appellant's partner's condition cannot be said to have been unexpected, bearing in mind the nature of the conditions from which she suffers. To the contrary, the appellant's written submissions before the trial judge asserted that: '[i]t is apparent from the two reports the [appellant's] incarceration will seriously impact upon [the appellant's partner's] mental and physical welfare'.[70] Having so submitted to the trial judge, the appellant's submission on appeal that her deterioration could not have been foreseen is without substance.
9. Further, and significantly, as senior counsel for the appellant properly conceded, it cannot be inferred that the appellant's partner's deterioration was caused by the appellant's incarceration. Moreover, the material does not establish whether the deterioration is permanent.
10. For all these reasons, the proposed additional evidence does not, even arguably, demonstrate a miscarriage of justice in the sentence imposed on the appellant.
11. The significance of the additional evidence is further undermined by the reality that, even on the most favourable re‑exercise of the sentencing discretion, the appellant would remain in prison for a period measured in years. In other words, the circumstance that the appellant will remain in prison for some years even if his appeal were to succeed reinforces the conclusion that the additional evidence concerning the deterioration in his partner's health falls well short of sustaining intervention by this court.
12. For these reasons, ground 2 fails. We would refuse leave to appeal on this ground.
13. For the same reasons, the application to adduce additional evidence falls well short of achieving its purposes of demonstrating a miscarriage of justice and sustaining the imposition of a different sentence. We would refuse the application.

1. At the commencement of the hearing of the appeal, senior counsel for the appellant applied for an adjournment. The application was not supported by evidence. The appellant indicated that he wanted the adjournment for the purpose of adducing an updated report as to the condition of the appellant's partner and to pursue the possibility of obtaining a report from a neurologist. Senior counsel informed the court that, while these matters had been under discussion for some time, it was only on the morning of the appeal that the appellant decided to apply for an adjournment.
2. The court refused the application, indicating that reasons for that decision would be given later. We refused the adjournment on account of two matters. First, there was an insufficient foundation to expect that, with the benefit of an adjournment, the appellant would be in a position to adduce further additional evidence that was likely to materially influence the outcome of the appeal. Secondly, the application was made at the last minute, without explanation, apart from the indication that the appellant had simply changed his mind.

1. For the above reasons, we would make orders to the following effect:

(1) Leave to appeal on ground 1 is granted.

(2) Leave to appeal on ground 2 is refused.

(3) The application for leave to adduce additional evidence on appeal is refused.

(4) The appeal is dismissed.

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

[41] Order of Buss P, 22 February 2022.

[42] Appellant's submissions [28] ‑ [29].

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

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

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

[46] GGM v The State of Western Australia [No 2] [2011] WASCA 259.

[47] UGN v The State of Western Australia [No 2] [2021] WASCA 10.

[53] Appellant's submissions [72]; appeal ts 9 - 10.

[55] See, for example, Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26] and Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[56] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68].

[57] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209 [168].

[58] MHE v The State of Western Australia [2019] WASCA 133 [81].

[59] CAND v The State of Western Australia [2018] WASCA 101 [48].

[60] Pennetta v The State of Western Australia [2013] WASCA 234 [39].

[61] UGN v The State of Western Australia [57].

[62] Pedrochi v Brown [2021] WASC 81 [43].

[63] See, for example, HJT v The State of Western Australia [2020] WASCA 120 [59].

[65] Wellstead v The State of Western Australia [2019] WASCA 130 [89] ‑ [99].

[66] House v The King (1936) 55 CLR 499.

[67] Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [10].

[68] Rinaldi v The State of Western Australia [2007] WASCA 53 [84]; Huggins v The State of Western Australia [2018] WASCA 61 [395] - [396].