MHS -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 175 | Case summary

Court of Appeal (WA)|2023-12-08|Before: Buss P

This is an application for leave to appeal against sentence.
The appellant was charged on an indictment containing 30 counts of child sexual offences. There were two complainants, being the appellant's nieces, who were aged 12 years and 13 years, respectively. After an eight‑day trial, the appellant was acquitted of counts 1 ‑ 13 and count 30 and convicted of counts 14 ‑ 29. Count 14 related to the 12‑year‑old girl, who we will refer to as AB. The remaining 15 counts of which the appellant was convicted all related to the 13‑year‑old girl, who we will refer to as CD.
The counts of which the appellant was convicted consisted of one count of indecently dealing with a child under the age of 13 years (count 14), seven counts of sexual penetration of a child of or over the age of 13 years but under the age of 16 years (counts 15, 19, 20, 21, 23, 26 and 28), one count of attempted sexual penetration of a child of or over the age of 13 years but under the age of 16 years (count 16), and seven counts of indecently dealing with a child of or over the age of 13 years but under the age of 16 years (counts 17, 18, 22, 24, 25, 27 and 29).
The appellant was sentenced to a total effective sentence of 9 years 2 months' imprisonment.
The appellant seeks leave to appeal on two grounds. Ground 1 alleges that the sentencing judge made a factual error in respect of count 14 in that she dealt with that count as being part of a persistent course of conduct. Ground 2, which was amended at the hearing, alleges that the learned sentencing judge erred by imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all relevant circumstances, including those referable to the appellant personally.
For the reasons that follow, neither of the grounds of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.

The trial judge's findings of fact for the purposes of sentencing are not disputed (other than in respect of the matter that is the subject of ground 1). Those facts can be summarised as follows.
Count 14 occurred on a date unknown between 3 April 2015 and 2 April 2016. At this time, the appellant was aged 23 or 24 years. The offence occurred at a time when the appellant was living with AB and her mother at their home. On this occasion, the appellant was in the bedroom of the children's mother (his sister), together with AB and CD, at a time when the mother was not at home. They were sitting on the bed in the room, with AB sitting next to the appellant. The appellant obtained a blanket and pulled it over himself. He then took hold of AB's hand and placed it down the front of his shorts underneath the blanket and onto his penis. He then manipulated AB's hand up and down, using her hand to masturbate himself. AB tried to pull her hand away, but he held it on his penis. This continued for a couple of minutes until AB removed her hand.[1]
The offending relating to CD took place some four or five years later, between 19 December 2019 and 3 February 2020. The 15 offences occurred on six different occasions in that period. The context in which the offending occurred was that on 9 December 2019, another sister of the appellant passed away. As a result, AB, CD and their mother spent a great deal of time at the family home of the appellant's parents. In particular, between 19 December 2019 and 3 February 2020, CD lived at the family home during a school holiday period. CD's mother would be present at the house during the day but then return to her home in the evening. CD did not have a designated bedroom and there were no set sleeping arrangements. She was able to sleep in any room occupied by her aunts and/or uncles. The appellant was working on a fly‑in/fly‑out basis and when in Perth, would stay at the family home, where he had his own bedroom. At this time, CD was aged 13 years of age and the appellant was aged 28 years.[2]
The first incident involving CD occurred on a night between December 2019 and February 2020 when the appellant and CD were in the appellant's bedroom, playing video games on his computer. At some point, CD fell asleep on the bed, whilst the appellant continued to play games. Sometime after CD fell asleep, the appellant laid down on the bed, placed his hand underneath her clothes and underwear and penetrated her vagina with his finger. When CD woke, she was lying on her side with the appellant lying next to her, also on his side and facing her. She could feel his fingers inside her vagina. She pulled away from the appellant, but he kept his fingers inside her and continued to penetrate her for some time. This conduct constitutes count 15 of the indictment. The following day, the appellant took CD to mixed martial arts training, but nothing was said about what he had done to her the previous night. He also picked CD up after training and drove her home. At this time, he repeatedly placed his hand on her thighs over the top of her clothing and rubbed her thighs.[3]
The second incident occurred on another night during the same school holiday period. On this occasion, the appellant, two of his sisters and CD were in his bedroom, playing video games on his computer. After some time, the appellant's sisters left the bedroom, leaving him and CD alone. CD was lying on the bed. The appellant pulled down CD's pants and underwear and removed his own pants and underwear, leaving his shirt on. He then placed a condom on his penis, which he retrieved from a desk nearby. He lay on top of CD and attempted to penetrate her vagina with his penis but was unable to do so. This conduct relates to count 16 of the indictment.[4]
The appellant then stopped and positioned himself so that he was resting his knees at the end of the bed near CD's feet. He then masturbated until he ejaculated. He cleaned himself up with a tissue and went to sleep. That conduct constitutes count 17 of the indictment. CD pulled her pants back up and lay on the bed for some time, before eventually falling asleep.[5]
The third incident occurred on 23 December 2019. On this occasion, the appellant, CD and other family members returned to the family home after attending the appellant's sister's funeral. That evening, the appellant and CD were together in his bedroom. He spread a blanket on the floor and told CD that his bed squeaked too much. He then pulled his penis from his pants and asked CD to rub it with her hand. She complied with that request. She took the appellant's penis in her hand and rubbed it, masturbating his penis. That conduct constitutes count 18.[6]
The appellant then removed his clothing and removed CD's dress so that she was left wearing only a crop top. CD laid down on the blanket and the appellant laid on top of her, put a condom on his penis and attempted to penetrate her vagina with his penis. At first, he struggled to do so but he continued to persevere until he succeeded. As he moved his penis inside her vagina, CD complained that it hurt. He then removed his penis, telling her that he would do it another time. That conduct constitutes count 19 of the indictment.[7]
The fourth incident occurred during the same holiday period, most likely in January 2020. The appellant and CD were in his bedroom at the family home. The appellant again laid a blanket down on the floor and CD took her clothes off and laid on the blanket. The appellant placed a condom on his penis and laid on top of CD. He then penetrated her vagina with his penis, continuing until he ejaculated. That conduct constitutes count 20 of the indictment.[8]
The appellant removed the condom and started cleaning his penis with a tissue whilst CD moved to the bed, sitting in a corner of the mattress. At this time, the appellant told CD that he felt good and after a short time, his penis became erect again. He then moved to the bed and laid down. He asked CD to sit on his lap, which she did. She then straddled across the appellant's lap, and he penetrated her vagina with his penis for a few seconds before lifting her off his lap. That conduct constitutes count 21. At the time of this act, the appellant was not wearing a condom. He told CD to clean her vagina and she complied. The next day he gave CD what she believed to be a morning‑after pill and told her to take it, which she did.[9]
The fifth incident occurred in the same holiday period, again likely to be in January 2020. On this occasion, the appellant and CD were in his bedroom at the family home. On this occasion, he asked CD to get on her knees and take her shirt off, telling her it would 'get messy'. CD complied such that she was wearing only a crop top. The appellant then removed his pants and asked CD to rub his penis with her hand. She complied, taking his penis into her hand and rubbing it up and down. As she did so the appellant held on to her shoulders. That act constitutes count 22 in the indictment.[10]
After a period of time, the appellant told CD to stop using her hands and asked her to use her mouth instead as it would 'be better'. She complied, taking the appellant's penis into her mouth and performing fellatio. That act constitutes count 23.[11]
After a further of period of time, CD stopped, and the appellant took his penis into his own hands and masturbated himself until the point of ejaculation. When he reached that point, he pointed his penis at CD and ejaculated onto her shoulders. That conduct constitutes count 24. He then handed CD some tissues and told her to clean it up.[12]
The sixth incident occurred on a further date in the same holiday period. On this occasion, the appellant and CD were again in his bedroom at the family home. He got a stool and asked CD to sit down on it whilst he remained standing. He told CD to remove her shirt as it would 'get messy', and she complied. He then removed his pants and asked CD to rub his penis, which she did by taking his penis into her hand and rubbing it up and down. That conduct constitutes count 25.[13]
After a period of time, the appellant told CD to stop using her hands and use her mouth instead as it would 'be better'. She complied and took his penis into her mouth and performed fellatio. That act constitutes count 26.[14]
After a further period, CD stopped, and the appellant took his penis into his hands and proceeded to masturbate himself to the point of ejaculation. When he reached that stage, he aimed his penis at CD and ejaculated in and around her mouth. He told CD to swallow but she refused, gagging, so that the ejaculate dripped on to the floor. That conduct constitutes count 27.[15]
After CD spat out the ejaculate, he told her that she could swallow it next time. The appellant and CD continued to lay next to each other in the bedroom. He encouraged her to let him masturbate into her mouth. He told her that if she swallowed it, he would buy her a new phone, which was something she had previously mentioned wanting. CD initially said no but after further persistence by the appellant, she eventually agreed. The appellant then told CD to use her mouth to suck his penis. She complied, taking his penis into her mouth and performing fellatio. That conduct is count 28.[16]
After a period of time, CD stopped, and the appellant took his penis into his hands. He then proceeded to masturbate himself until the point of ejaculation. When he reached that stage, he aimed his penis at CD and ejaculated in and around her mouth. He told her to swallow, and she did. He congratulated her for doing so. That conduct constitutes count 29.[17]
Shortly afterwards, CD resumed school and returned to live at her mother's home. The offending against CD then stopped.[18]
The appellant was arrested and charged with the offences on 30 July 2021. He declined to speak to the police. He first appeared in the Magistrates Court on 31 July 2021. At trial, the appellant denied that any of the alleged conduct had occurred.[19]

Both complainants provided victim impact statements. The learned sentencing judge noted that these statements detailed the adverse impact on the victims. In respect of AB, she referred to having lost sleep and having serious trust issues with men. She has taken to unhealthy coping strategies. She has lost relationships with family members because the family remains divided. She finds work difficult and is unable to concentrate.[20]
In respect of CD, she has struggled to control her negative thoughts and memories, which have impacted on her sleeping. She has difficulties with her emotions and feels disconnected from reality on occasions. She has tried to self‑harm in the wake of the offending. She also has trust issues with men, including men she knows. She was worried about the shame that she would feel if her friends learned of what had been done to her. She has often had feelings and memories triggered unexpectedly. She has undertaken some counselling, but it is expensive. She has had to take time off work and away from school. She refers to how the offending has had a significant impact on the family, which was once close but is now divided.[21]

The appellant was 23 years of age when he offended against AB, 28 years of age when he offended against CD and 31 years of age when he came to be sentenced. He is the third eldest of eight siblings.[22]
The appellant's parents are separated. At separation, his mother had to move out of the family home and into rental premises. She cares for the young child of the appellant's deceased sister. The appellant has assisted in paying the rent for his mother.[23]
The appellant completed year 12 and then a Bachelor of Engineering at university. He worked as an engineer for a firm for five years and then as a senior engineer on a fly‑in/fly‑out basis for a further three years. During this period, he was a member of the emergency response team and the bushfire brigade. He worked with a large mining company as an engineer, until he was charged with the current offences.[24]
The appellant has had two long‑term relationships, including one that remained current at the time of sentencing. He has no children. His partner remains supportive of him.[25]
The appellant is in good mental and physical health, although he obtained some counselling when his sister passed away. He has not been diagnosed with any mental health conditions and has no substance use issues. The appellant has no prior criminal history.[26]
The learned sentencing judge noted that the appellant had chosen to take all of the charges to trial. This was not an aggravating factor, but he could not get any credit for having pleaded guilty or for having shown any remorse.[27]
The appellant relied on a number of character references, which the sentencing judge referred to. Those references revealed that the appellant is held in high regard by his parents, his brothers, former work colleagues, former and current intimate partners and friends. The appellant's parents and brother have relied on him over many years, and he is respected and trusted by family members. He is regarded as a good employee and work colleague.[28]
As regards prospects of rehabilitation, the learned sentencing judge said that she had insufficient information to make any meaningful assessment in that regard. At the time of sentencing, the appellant had spent some time in custody and that time was taken into account in setting the date for the commencement of the sentence.[29]

It is unnecessary for the purposes of ground 2, which alleges implied error in the breach of the totality principle, to detail the sentencing remarks. As regards ground 1, it is only necessary to refer to those parts of the sentencing remarks that contain the alleged factual error.
After referring to the facts of the offences, the learned sentencing judge said: [30]

There is no doubt that the victims were vulnerable by their various circumstances, which include their young ages and your relationship with them. You are old enough to know that what you were doing was wrong. There can be no doubt that you preyed on their [sic] vulnerabilities of both victims in order to commit these many offences against them.

Later in the remarks, after referring to the disparity in the ages between the appellant and each of the victims and the consequential power imbalance, her Honour said:[31]

Your offending in relation to both victims was opportunistic but it was persistent, and it occurred in the homes in which both victims should have been safe but were not. Your offending against [CD], of course, was not isolated. Your offending was brazen, as you committed these sexual offences against [CD] whilst other family members were in the family home, and against [AB] whilst [CD] was present. (emphasis added)

In referring to the seriousness of the offending her Honour referred to the following features:[32]
1. The incidents where the appellant ejaculated onto CD's face or mouth.
2. The coercion used by the appellant in promising to buy CD a telephone if she agreed to swallow his ejaculate.
3. That the appellant's clear motivation was his own sexual gratification, which was achieved at the expense of his two nieces.
4. That the appellant showed no regard for the health of CD by inserting his penis into her mouth, exposing her to the possibility of disease.
5. The vulnerability of the victims and the impact that the offending had on them.
Her Honour referred to the need to punish the appellant and the need to protect the community and denounce the conduct. She noted that there was a need to impose sentences that had a general deterrent component and that would also specifically deter the appellant from committing offences in the future, as well as aiding in his rehabilitation.[33]
Her Honour imposed the following individual sentences:[34]

Her Honour said that taking into account the principles of totality and recognising that there are two victims of the offending, she would structure the sentence as follows. The sentence on count 21 was designated as the head sentence and the sentences on counts 14 and 15 were ordered to be served cumulatively. All other sentences were ordered to be served concurrently. That produced a total effective sentence of 9 years 2 months' imprisonment. The sentence was backdated to commence on 8 May 2023 and the appellant was made eligible for parole.[35]

The grounds are as follows:
1. The learned sentencing judge erred as a matter of fact in dealing with the sentence on count 14 as being part of a persistent course of conduct in respect of both victims.
2. The learned sentencing judge erred by imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all relevant circumstances, including those referable to the appellant personally.

The appellant submits that in the passage referred to at [39] the learned sentencing judge made an express error by finding that the appellant's offending against AB was a persistent course of conduct. It is submitted that there was no basis for such a finding and that the learned sentencing judge could not have been satisfied beyond reasonable doubt that this was the case in circumstances where the appellant was convicted of only one offence in respect of AB. The appellant suggests that by making a finding that the offending in respect of AB was persistent, her Honour failed to give the appellant the benefit of the acquittals on counts 1 ‑ 13.[36]
On a plain reading of the sentencing judge's remarks, her Honour was referring to the totality of the conduct in respect of both complainants when noting the persistence of the offending, rather than, as the appellant alleges, making a finding of persistence in respect of each complainant separately. That interpretation is consistent with the fact that immediately after the impugned reference her Honour notes that the offending against the other complainant, CD, was not isolated. That comment involves an implicit contrast with the offending against AB. Furthermore, it is hardly likely that the trial judge would have overlooked the fact that the appellant had been acquitted of counts 1 ‑ 13.
To have made a finding that the appellant's conduct in respect of AB in isolation was persistent would have been wrong, but it is so obviously wrong that it makes the appellant's interpretation of the relevant passage unlikely. It is true that there was a gap of three years six months between count 14 and the remaining counts on which the appellant was convicted and that might be viewed as an impediment to viewing count 14 as part of an overall persistent course of conduct, but that nonetheless remains a more likely interpretation of the passage than that advanced by the appellant.
In any event, even if the express error alleged by the appellant was made, there is another impediment to this ground of appeal. In Abraham v The State of Western Australia,[37] it was confirmed that this court retains a discretion to refuse a ground of leave to appeal on a ground which alleges an express error if the court is satisfied that it is not reasonably arguable that a different sentence should have been imposed.
Ground 1 only relates to the sentence imposed on count 14. That sentence was 8 months' imprisonment for an offence of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA). The maximum penalty for that offence is 10 years' imprisonment. There is no tariff for sexual offences of this type because of the great variation in the circumstances of offences and offenders. However, sentences for a single incident of indecent dealing with a child have tended to range from 9 months to 18 months (pre‑transitional), with sentences at the higher end of the range involving the fondling of genitalia.[38]
Having regard to the maximum penalty, the circumstances of the offence, the personal circumstances of the appellant (including the fact that he was convicted after trial) and sentences imposed in comparable cases, it is not reasonably arguable that a lesser different sentence should have been imposed on count 14.

An allegation that a total effective sentence is disproportionate to the total criminality is an allegation of implied error in the exercise of the sentencing discretion by the sentencing judge. The legal principles relevant to an appeal asserting implied error are well established and have been summarised in Kabambi v The State of Western Australia.[39] It is unnecessary to repeat those principles, other than to note that 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, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The primary sentencing considerations for sexual offences against children are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. It has been recognised that the fact that an offender is otherwise of good character will usually have little weight because offences of this kind, until revealed, generally do not impact on other people or upon their perception of the offender.[40]
As has been noted earlier, there is no tariff for sexual offences against children because of the great variation that is possible in the circumstances of the offending and the personal circumstances of offenders. The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.[41]
The value of comparable cases is limited. Each case turns on its own particular facts. Sentencing is necessarily a discretionary exercise. Reference to cases which may have some similar features and that attracted sentences lower (or higher) than that imposed on the appellant do not themselves establish that the sentence is unreasonable or unjust. The sentences imposed in other cases act as a yardstick and do not set the boundaries for the exercise of the sentencing discretion. A sentence will only be manifestly excessive, or a total sentence will only infringe the first limb of the totality principle, if it can be shown to be plainly unreasonable or unjust.
The maximum penalty for indecently dealing with a child under 13 years, contrary to s 320(4) of the Criminal Code, is 10 years' imprisonment. The maximum penalty for sexual penetration of a child of or over 13 years but under 16 years is 14 years' imprisonment.[42] The maximum penalty for attempted sexual penetration of a child of or over 13 years but under 16 years is 7 years' imprisonment.[43] The maximum penalty for indecent dealing with a child of or over 13 years but under 16 years is 7 years' imprisonment.[44]
In the present case, the seriousness of the offences was reflected in the following:
1. There were two victims who were in a close familial relationship with the appellant.
2. In each case, the appellant had access to the children because he was a trusted member of the extended family. The appellant used his privileged access to the children to gratify his own sexual urges and thereby breach the trust reposed in him.
3. Whilst the victims in this case were older than in some other cases, they were nonetheless vulnerable, particularly having regard to the familial relationship with the complainant and that he was significantly older than each of the complainants.
4. The offending in respect of the second complainant, CD, was particularly serious given that it involved multiple offences of sexual penetration. The appellant persisted in the first such act despite the complainant saying that she was in some pain.
5. The appellant used coercion in the form of a promise to provide CD with a telephone.
6. One of the acts of penile vaginal penetration was unprotected, which the appellant plainly appreciated involved a risk of pregnancy.
7. The appellant subjected CD to degrading conduct in which he ejaculated onto her body or face and demanded that she swallow.
As regards the appellant's personal factors, these can only provide limited mitigation. He did not have the benefit of pleas of guilty. He maintained his innocence and there were no indications of remorse.
In written submissions,[45] the appellant referred to the following cases: DKA v The State of Western Australia;[46] XMB v The State of Western Australia;[47] and other cases referred to in XMB at [69] to [71]. The circumstances of those cases varied as to the number of victims, whether the offender had pleaded guilty and the nature and duration of the offending conduct. The total effective sentences imposed in those cases ranged from 6 years imprisonment to 9 years imprisonment. The appellant submits that those cases involved more serious offending, in particular having regard to the longer periods of time over which the offending occurred in those cases and the greater age disparity.
The cases referred to by the appellant comprise only a very small sample. They do not establish the limits of sentencing discretion. The appellant accepts that there is limited utility in comparing cases involving child sexual abuse. Further, relative seriousness is not confined to one or two factors. We do not accept that, when regard is had to all relevant circumstances, the appellant's offending was less serious than the cases referred to.
We have also had regard to Coutts v The State of Western Australia;[48] GUE v The State of Western Australia;[49] WNO v The State of Western Australia;[50] Underwood v The State of Western Australia;[51] and Van Zyl v The State of Western Australia.[52] Of these, Underwood is perhaps the most similar. That case involved offending over a period of several months committed against two male complainants aged 8 and 13. The offending involved one episode against the first complainant and six episodes against the second complainant. The offender in that case was convicted on his pleas of guilty of 10 offences, five of sexual penetration of a child between the ages of 13 and 16, three of indecent dealing (one of a child under 13 and two of a child between the ages of 13 and 16) and one offence of using an electronic communication with intent to expose a child under 16 years to indecent material. The total effective sentence of 9 years 6 months' imprisonment was challenged on the basis of an alleged breach of the totality principle. Leave to appeal was refused.
Having regard to the maximum penalties for the offences in this case, the seriousness of the offending conduct (including the number of offences, the number of victims and the nature of the offending conduct), the personal circumstances of the appellant and the sentences imposed in broadly comparable cases, it is not reasonably arguable that the total effective sentence of 9 years 2 months' imprisonment is plainly unreasonable or unjust.

For the above reasons, neither of the grounds of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.

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

[37] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [81] (Buss JA), [1] (McLure P).

[38] The State of Western Australia v Shephard [2018] WASCA 140 [42], and the cases there cited. Referred to in MHE v The State of Western Australia [2019] WASCA 133 [61].

[39] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[40] The State of Western Australia v PJW [2015] WASCA 113 [34] ‑ [35]; WRT v The State of Western Australia [2020] WASCA 68 [65] ‑ [66].

[41] The State of Western Australia v AHD [2021] WASCA 13 [56] ‑ [58] (Buss P, Quinlan CJ & Mitchell JA relevantly agreeing).

[43] Criminal Code (WA) s 321(7)(a), s 552(2)(b).

[45] An amended appellant's case containing amended written submissions on ground 2 was filed on 27 November 2023.

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

[47] XMB v The State of Western Australia [2023] WASCA 4.

[48] Coutts v The State of Western Australia [2023] WASCA 38.

[49] GUE v The State of Western Australia [2022] WASCA 121.

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

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

[52] Van Zyl v The State of Western Australia [2017] WASCA 1.

MHS -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 175 (8 December 2023)

At a glance

Court

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Judgment (29 paragraphs)