JWE v Tasmania [2025] TASCCA 8

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Appellant pleaded guilty to three counts of incest with his biological daughter - Complainant was 17 at the time the incidents occurred - Custodial sentence of four and a half years ineligible for parole until half served - Complainant suffered significant mental health issues - Appellant was the only source of immediate support - Serious crime with significant aggravating circumstances - Sentence must reflect modern attitudes towards crimes of this nature - Comfortably within the sentencing discretion afforded to the judge - Sentence not manifestly excessive - Appeal dismissed.

Community Protection (Offender Reporting) Act 2005 (Tas)

Sentencing Act 1997 (Tas)

DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148

Hall v Tasmania [2015] TASCCA 6

R v G [1993] TASSC 70

R v Kilic [2016] HCA 48; (2016) 259 CLR 256, 339 ALR 229

Reid (a Pseudonym) v The Queen [2014] VSCA 145, 42 VR 295

Taylor v The State of Western Australia [2015] WASCA 72

Respondent: Office of Director of Public Prosecutions

Judgment Number: [2025] TASCCA 8

1. The appellant, JWE, appealed to this Court against a sentence of four and a half years' imprisonment and an order that he not be eligible for parole until he had served half of that term. The Court dismissed the appeal following the hearing on 2 July 2025. These are my reasons for joining in the order of the Court.
2. The single sentence was imposed by Pearce J on 27 August 2024, upon the appellant's pleas of guilty to three counts of incest.
3. The learned sentencing judge also made an order under the Community Protection (Offender Reporting) Act 2005 directing that the Registrar place the appellant's name on the Register kept under that Act and that the appellant comply with the reporting obligations under the Act for 10 years from the date of his release from prison. That order is not the subject of any appeal.
4. The appeal is on the sole ground that the sentence was manifestly excessive in all of the circumstances.
5. The task of this Court on an appeal of this nature needs to be borne steadily in mind. It has been explained many times in this Court and in others. A restatement of the relevant principles is to be found in Hall v Tasmania [2015] TASCCA 6 where Pearce J said at [51]-[52]:

"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried, and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

1. The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]."
2. In the decision of the Western Australian Court of Appeal in Taylor v The State of Western Australia [2015] WASCA 72, McLure JA at [27]-[31] made the following observations:

1. This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
2. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
3. Sentences 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 is the unifying principles which sentences imposed in comparable cases both reveal and reflect.
4. Manifest excess applies to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.
5. The first limb of the totality principle 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."

1. The appellant was originally charged with three counts of rape but the State accepted his plea of guilty to three counts of incest in the alternative. In each case the victim was his biological daughter. From the time that she was three years old until she was 17 the appellant had little contact with her, however in 2021 (when she was 17), she moved from New South Wales to live with him. The two lived in adjoining rooms in a motel that the appellant was managing in regional Tasmania.
2. The defendant had sexual intercourse with the complainant on three occasions between 27 July 2021 and 11 August 2021. The defendant was 47 years old during that period.
3. The complainant had significant mental health issues. She suffered from bipolar disorder, anxiety, depression and suicidal ideation. She had medication to help her sleep and she had been advised to seek company if feeling suicidal.
4. On 27 July 2021 the complainant came to the defendant's room with suicidal thoughts. She took her prescribed medication, smoked some cannabis that he gave her and fell asleep on the couch. The defendant suggested that she get into bed, which she did, and while she was there he undressed her, and himself, positioned himself on top of her, and penetrated her vagina with his penis until he ejaculated. She then dressed in the bathroom, went back to her room, showered and cried.
5. The two other occasions of sexual intercourse occurred on 3 August 2021 and 11 August 2021 in substantially the same circumstances.
6. After the third occasion, on 11 August 2021 the complainant told her fiancé and her mother, (who lived interstate), what had happened. Her mother arranged for her to be taken to her great aunt's house who she also told what had happened. Concerned that she may be pregnant a test was undertaken but was negative.
7. The defendant told his de facto partner, who was living in New South Wales at the time, that he had sex with his daughter because he "wanted her to know what sleeping with a real man was like." He also said that on each of the three occasions he had fondled his daughter's breasts, touched her vagina and had her perform oral sex on him.
8. Examination of the defendant's mobile telephone revealed repeated messages from him to the complainant inviting her to come to his room to "cuddle", along with an internet search history which showed that on at least 55 occasions between 24 July and 10 August 2021 he had sought out and viewed father and daughter oriented pornographic videos.
9. After the complainant was confronted with the allegations at the end of August 2021 he left the State, abandoning his home and his employment. He was not charged until a complaint was filed in January 2023 and was arrested in New South Wales on 15 March 2023 and extradited back to Tasmania.

1. At the time of sentencing, the defendant was 50 years old. He had prior convictions for dishonesty and driving offences and in 1996 he had been sentenced to imprisonment for four years and six months for aggravated armed robbery. He had no prior convictions for sexual offences.
2. On passing sentence the learned sentencing judge made the following comments:

"I regard these as serious crimes. You breached the trust your daughter placed in you, and the trust of others who allowed her into your care, supervision and authority. You took advantage of your influence and her vulnerability arising from your relationship, her age and her fragile mental health to indulge your own perverted sexual proclivities. These were not spontaneous or momentary lapses. You did not give her cannabis intending to facilitate the crimes but her use of the drug added to her vulnerability. You did not wear a condom and so the sexual intercourse was accompanied by the risk of pregnancy and the transmission of sexual disease. Thankfully neither of those things occurred although she was in fear of pregnancy for at least some time.

You are entitled to mitigation from your plea of guilty even though the case against you seems to me to have been overwhelming and your plea a recognition of the inevitable. It facilitates justice by avoiding the need for a trial. Most importantly it saves the complainant from the considerable additional trauma of having to give evidence. On the other hand, you avoided the chance that you may have been found guilty of more serious crimes. The absence of consent is not an element of the crime of incest. Care is required that you not be sentenced for rape. It is to be inferred that the State could not prove beyond reasonable doubt that the complainant did not freely agree to sexual intercourse. However, one purpose of the law is to protect young and vulnerable persons including from their own frailty or misjudgment. It was your obligation to protect your daughter. Instead, you abandoned your parental responsibility. It was you who instigated the sexual acts in a predatory manner for your own selfish purposes. Your offending did not last for a prolonged period but each count involved separate criminality."

1. His Honour took into account all of the aggravating circumstances specified in the Sentencing Act 1997, s 11A, which have application. That section provides, relevantly, as follows:

"11A Matters to be taken or not taken into account in sentencing certain sexual offenders

aggravating circumstance, in relation to a sexual offence, includes, but is not limited to, the following:

(a) the victim being under the care, supervision or authority of the offender;

(d) the offender committing the offence in whole or in part in the presence of any other person or persons, besides the victim;

(da) the victim being under the age of 18 years and the offender being a person in a position of authority in relation to the victim (regardless of whether the offence is under section 124A of the Criminal Code, or any other section of the Criminal Code);

(e) the offender subjecting the victim to violence or the threat of violence;

(f) the offender supplying the victim with alcohol or drugs with the intention of facilitating the commission of the offence;

(g) the offender making forced or uninvited entry into the victim's home or other premises;

(h) the offender doing, in the course of committing the sexual offence, an act likely to seriously and substantially degrade or humiliate the victim;

(i) the offender causing any other person or persons to carry out an act referred to in paragraph (e) , (f) , (g) or (h) of this definition;

disability means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;

person in a position of authority has the same meaning as in section 124A of the Criminal Code..."

1. During the course of the sentencing hearing the learned sentencing judge was referred to a decision of this Court in R v G [1993] TASSC 70.
2. That case involved a Crown appeal against sentence imposed on a plea of guilty to three counts of incest committed by a father on a daughter when she was 17 and 18. The only ground of appeal was whether a sentence of imprisonment for six months on each count to be served cumulatively, and cumulatively with a further sentence of six months for indecent assault, a total of two years, was manifestly inadequate. The majority dismissed the appeal however the case must be considered as reflecting an outmoded world view that is now over 30 years old and does not reflect the views of modern society as to the sexual abuse of children.
3. In R v Kilic [2016] HCA 48, 259 CLR 256 the High Court said at [21]:

"...Consideration of 'current sentencing practices' will include, where appropriate, the proper use of information about sentencing patterns for an offence . The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations."

1. I observe that Crawford J, who dissented in R v G, noted the seriousness of the crime of incest in the following passage at [11] of his reasons:

"Sentences for acts of incest between freely consenting and willing adults are commonly not severe. Frequently imprisonment is not imposed in such cases. But incest by fathers upon daughters up to the age of say fifteen or sixteen years is most usually punished with a significant sentence of imprisonment. A more lenient sentence will usually be justified only in a case where particular circumstances require it in the interests of justice. In R v J (1982) 45 ALR 331 at 335, Toohey J considered the difference between cases involving consenting adults and cases involving children:

'The severity which the criminal law has traditionally visited upon the offence of incest derives from a number of considerations. It has been regarded as morally wrong and an offence against religion. It involves the genetic risk that certain diseases are more likely to occur. It is destructive of the family relationship.

It involves a breach of the trust reposed in a parent to care for and protect his children. The cogency of these considerations has varied from time to time and from community to community. In a contribution to Family Violence - An International and Interdisciplinary Study (Editors J M Eekelaar and S N Katz, Butterworths 1978), Mr A H Manchester reviews briefly the attitude of the law to incest and concludes:

"The actual practice of the courts indicates that in this context the aim of the criminal law of incest is, above all, to protect the young child" (at p 502):

see also Bailey and McCabe: Reforming the Law of Incest (1979) Crim LR 749.

The move away from the notion that law is the custodian of morals; the view that sexual conduct between consenting adults does not require the intervention of the criminal law; and an emphasis upon the importance of rehabilitating the family have all led to a climate of opinion that prison sentences may not be appropriate in some cases of incest. But the protection of young children from corruption and exploitation, especially by someone in a position of trust or authority, must remain an important and generally prevailing consideration.'"

1. The learned sentencing judge noted that, more recently, useful reviews of sentences for incest were undertaken by the Court of Appeal in Victoria in Reid (a Pseudonym) v The Queen [2014] VSCA 145, 42 VR 295 and DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148. However, as his Honour noted, some circumstances of those cases were different, and they also involved statutory sentencing provisions which do not apply here. In the final analysis there are too few sentences and the circumstances are too disparate to establish a sentencing range, much less a tariff.
2. I note however, as the learned sentencing judge did, that when Director of Public Prosecutions (DPP) v Dalgliesh (Pseudonym) [2017] HCA 41; (2017) 262 CLR 428 reached the High Court, the comments about the seriousness of the crime of incest made below, were affirmed by the High Court. I note in particular, after referring to a 1986 sentence for incest as a "decision of it's time" and setting out the passage from Kilic that I have set out above, the plurality in Dalgliesh said, of the observations in that passage, at [57]:

"Those observations are distinctly apposite here. The decision in Kaye was delivered in 1986. In the three decades since, sexual abuse of children by those in authority over them has been revealed as a most serious blight on society. The courts have developed - as the Court of Appeal accepted in 'emphatically' rejecting the respondent's submission that 'there was no violence accompanying the offence' - an awareness of the violence necessarily involved in the sexual penetration of a child, and of the devastating consequences of this kind of crime for its victims..."

1. Towards the end of his comments on passing sentence, the learned sentencing judge said:

"Since R v G was decided community attitudes to sexual offences against young persons have developed considerably, partly because of the appreciation of the harm to victims which may result. The complainant was, for legal purposes, not a child. However, the prohibition of sexual relations between a father and a young daughter is not just based on the fact that it is morally wrong, offends societal taboos, carries a genetic risk and is a violation of the individual and social role of family, but also because of the inherent risk of long-term psychological harm to victims. Here, there is no victim impact statement but that does not mean that there is no impact. The risk of harm to your daughter was added to by her already fragile mental health which was known to you."

1. I respectfully endorse those comments.
2. And I accept the submission of counsel for the respondent, Ms Judd, that:

"34 The crimes were not spontaneous or momentary lapses. Whilst the offending did not last for a prolonged period (3 occasions of the course of a 3-week period), each count involved separate criminality. The appellant pursued a course of conduct, taking advantage of the circumstances to satisfy a sexual interest in having sexual intercourse with his biological daughter as shown in the many specific searches of various pornographic videos with a daddy/daughter theme."

"26 It was put, and accepted, that the circumstances in which the crimes were committed show that the appellant was the instigator, and the complainant did not actively encourage the appellants' offending; any degree of participation by her should be considered against the background of the appellant's conduct and the circumstances of the offending. The complainant was still of a young age and the appellant still owed her a parental duty to protect her.

1. It is submitted that the learned sentencing judge was correct in noting that whilst the complainant was, for legal purposes, not a child, one purpose of the law is to protect young and vulnerable persons, including from their own frailty or misjudgement."
2. In my view, the sentence passed by the learned sentencing judge was comfortably within the broad range of a sound sentencing discretion for a case of incest of this type and entirely conformable with sentences passed by judges of this Court in recent years, in cases of sexual abuse of young persons. The sentence has not been shown to be unreasonable or plainly unjust.
3. I would dismiss the appeal.

1. I have read the reasons for judgment of Estcourt J. I agree with everything his Honour has said. They represent my reasons for joining in the dismissal of this appeal

1. On 2 July 2025, I joined in ordering the appellant's appeal against his sentence be dismissed. I have read the reasons for judgment of Estcourt J and agree with them. They reflect my own reasons for joining in the orders dismissing the appeal.