MRW -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 98 (5 August 2022)

On a date unknown between 6 April 2004 and 7 April 2005 at Dianella, the appellant sexually penetrated JM, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, contrary to s 321(2) of the Code.

On a date unknown between 13 April and 1 May 2006 at Belmont, the appellant sexually penetrated NH, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his fingers, contrary to s 321(2) of the Code.

On the same date and at the same place as in count 4, the appellant sexually penetrated NH, a child of or over the age of 13 years and under the age of 16 years, by performing cunnilingus, contrary to s 321(2) of the Code.

On the same date and at the same place as in count 4, the appellant sexually penetrated NH, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his fingers, contrary to s 321(2) of the Code.

On the same date and at the same place as in count 4, the appellant indecently dealt with NH, a child of or over the age of 13 years and under the age of 16 years, by procuring her to touch his penis, contrary to s 321(4) of the Code.

On a date unknown between 30 April and 16 August 2006 at Perth, the appellant procured, incited or encouraged NH, a child of or over the age of 13 years and under the age of 16 years, to do an indecent act, namely photograph herself naked, contrary to s 321(5) of the Code.

On a date unknown between 31 December 2016 and 1 January 2018 at Como, the appellant indecently dealt with KB, a child of or over the age of 13 years and under the age of 16 years, by touching her breasts with his hands, contrary to s 321(4) of the Code.

1. The appellant does not challenge any of the individual sentences that were imposed. The sole ground of appeal alleges that the total effective sentence infringes the first limb of the totality principle. The question of leave to appeal on this ground was referred to the hearing of the appeal.

1. Counts 1 to 8 alleged sexual offending in respect of two girls, JM (counts 1 to 3) and NH (counts 4 to 8) which occurred between 2003 and 2006. Count 9 alleged sexual offending against a third child, KB, which occurred in 2017.
2. The appellant was born in late 1983. He and his parents had a prominent connection with a lawn bowls club (the Club). As a youth and as a young adult, the appellant was a highly successful lawn bowler, representing both Western Australia and Australia. He was a charismatic, popular and trusted figure at the Club. The common link between the victims is that they had, or they knew someone who had, a personal connection with the Club.
3. The appellant did not challenge at first instance and does not challenge now the facts of the offending which may be summarised as follows.

1. JM's parents were involved with the Club. They were good friends with the appellant's parents and the two families regularly socialised at the Club. The appellant and JM knew each other. JM was six years younger than the appellant. The charged acts were preceded by other sexual conduct between the appellant and JM.
2. The first time that anything of a sexual nature occurred between JM and the appellant was in 2000 at the Club when she was 11 and the appellant was 17 years old. On this occasion the appellant kissed JM. After this, JM became infatuated with the appellant. On New Years Eve 2001, they both attended a New Years Eve celebration at the Club. At this stage, JM was 12 and the appellant was 18 years old. In the early hours of 1 January 2002, JM went home with her parents. The appellant also ended up at JM's house. While in JM's bedroom the appellant kissed her and touched her breasts and vaginal area over her clothes.
3. After this incident, JM and the appellant began a secret sexual relationship involving sexual acts which occurred weekly and sometimes daily at either JM's house or the appellant's house.
4. On one such occasion, on a date unknown when JM was aged between 12 and 14 years, the appellant coached JM on how to masturbate his penis. She then masturbated him until he ejaculated.
5. The events we have just described were not the subject of any charged acts, but were said by the prosecutor to provide 'context' to the acts the subject of counts 1 to 3. It was accepted by the appellant that the charged offences were representative of a course of conduct between the appellant and JM.
6. Count 1 occurred when JM was about 14 or 15 years old and the appellant was aged between 19 and 21. The appellant sent a text message requesting that she send photographs of her bottom. JM did as she was asked and sent the appellant photographs of her buttocks while bending over and wearing lacy underwear. The appellant later showed another person two of the photographs JM had sent him.
7. Count 2 occurred in the appellant's bedroom when JM was 15 years old and the appellant was 20 or 21. On this occasion the appellant inserted his penis into JM's vagina while she was sitting on him. He did not wear a condom. In the days after this occurred, JM overheard the appellant talking to someone at the Club saying that she was 'going at it like a rabbit'.
8. Count 3 occurred when JM was about 15 years old and the appellant was about 20 or 21. On this occasion, the appellant engaged in sexual intercourse with JM in his bedroom, penetrating her vagina with his penis. The appellant again did not wear a condom. After a couple of minutes, the appellant withdrew his penis and ejaculated onto JM's stomach.
9. Once JM turned 16, the appellant and JM engaged in a public relationship. In 2006, when JM was in year 12, the appellant bought her an engagement ring. Sometime after this JM terminated the relationship.
10. In 2017 JM and the appellant saw each other at a lawn bowling event. They arranged to meet at a hotel. During the meeting they discussed the sexual relationship they had engaged in when JM was a child. The appellant admitted that he had had sex with her when she was 12 and stated that he had taught her everything she knows about sex.
11. JM and the appellant kept in contact. On 8 January 2018, via text message, the appellant sought to recommence their relationship. JM responded that there was no relationship because 'it was wrong then and it's wrong now'.
12. At one point in the chain of text messages, JM told the appellant that he could have gone to gaol for what had happened and that she could never trust him. The appellant replied:

1. On 28 May 2018 JM formally complained to the police. On 25 June 2018 JM met with the appellant at a restaurant. The conversation between JM and the appellant was monitored by police officers using a concealed listening device. In the course of the meeting, the appellant made admissions to JM about their past sexual relationship, including that others at the Club had known what was going on.
2. On 26 June 2018 the appellant was arrested. In an electronic record of interview with police, the appellant admitted that he had met JM the day before, but stated that he had been drunk and could not recall what he had said.

1. When she was younger, NH attended a primary school in the Perth metropolitan area with JL. JL's parents had a long association with the Club and were very close to the offender. After NH and her family moved away from Perth to a regional town, NH and JL stayed friends and remained in regular contact. In the Easter school holidays of 2006, NH travelled to Perth and stayed with JL and her family. There, NH, who was 13 years old, met the appellant who was 22 years old at the time.
2. After NH and the appellant met, the appellant obtained her mobile number and they began exchanging text messages. NH found the appellant to be flattering and very nice to her.
3. Counts 4 to 7 occurred on an occasion during the Easter holidays of 2006. NH and others including JL went to a shopping centre to see a movie. When the group got to the shopping centre NH said that she would rather go clothes shopping by herself. In fact, she and the appellant had agreed to meet. The appellant picked up NH in his car and took her to a park. When they got to the park they started kissing while leaning on the bonnet of the car. The appellant put his hand between her legs and touched NH's vagina over her clothes. They then got into the back seat of the appellant's car and continued to kiss.
4. As to count 4, the appellant put his hand down NH's pants beneath her underwear and inserted his fingers into her vagina. He moved his fingers in and out of the victim's vagina whilst he kissed her.
5. As to count 5, the appellant helped NH take her pants and underpants off and then engaged in cunnilingus with her. The appellant eventually stopped and told her that he needed to go back to work. They then got back into the front of the car and the appellant drove NH towards the shopping centre.
6. As to count 6, on the journey back to the shopping centre the appellant slid his hand underneath NH's underwear and inserted his fingers into her vagina.
7. As to count 7, again on the journey from the park to the shopping centre, the appellant grabbed NH's right hand, held it over his crotch and moved it over his genitals. The appellant's zipper was down and NH felt his boxer shorts and his erect penis.
8. At the conclusion of the Easter holidays, NH left Perth and returned home. The appellant and NH continued to text each other and had secret phone conversations. The appellant told NH that he loved her and that she should not be shy with him. He asked her to shave her pubic hair which she did. He also asked her to wait for him and told her not to have sex with anyone else.
9. At one point after NH returned to the regional town in which she lived, the appellant sent her nude photographs of himself. He also asked NH to send him nude photographs of herself (count 8).
10. About three or four months after NH returned home, the appellant broke off the relationship.

1. The complainant in count 9 is KB. Her mother and her grandparents had an association with the Club. Her grandparents were the parents of JL, NH's friend. The appellant and KB's mother were long‑time friends. The appellant is KB's godfather and she regarded him as her uncle. Due to a drug addiction, KB's mother had difficulties in caring for her daughter.
2. In or around April 2017 KB moved in with her mother. Shortly afterwards the appellant also moved into the house.
3. Count 9 occurred on a night during the July school holidays in 2017 when KB was in year 8. KB was 14 and the appellant was 33 years old. KB's mother had passed out on the couch and KB was hungry. She contacted the appellant and asked him to bring home some fast food. At about 9.30 pm the appellant arrived home with the food. After she finished eating, KB went and had a shower. While she was in the shower, the appellant opened the bathroom door and pulled aside the shower curtain. He then reached out with his two hands and grabbed KB's breasts. KB pulled away from the appellant, but he reached towards her vagina. She took hold of the shower curtain and pulled it closed. The appellant then walked out of the bathroom. KB got out of the shower, went to her bedroom to get dressed and shut the door. The appellant opened it and walked towards her. KB called out for her mother's dogs. The dogs ran into the bedroom, following which the appellant stopped and walked out. As he left the room he said to KB, 'If you tell anyone, I am going to kill your mum - and hurt you'.
4. Within days, KB left her mother's home and moved in with her grandparents. On 9 or 10 December 2017 KB complained to her grandmother about the appellant's conduct and, on 15 December 2017, the matter was reported to police. In a video‑recorded interview with police on 28 December 2017 the appellant denied the offending and stated that KB was a troubled child who had fabricated the accusation.

1. JM and NH provided victim impact statements. JM read her statement to the sentencing judge. NH's statement was read aloud to the sentencing judge.
2. The victim impact statements eloquently describe the profound adverse impact the appellant's offending has had upon the lives of their authors. JM told the court that she experiences shame, guilt, insecurity, lack of trust, anxiety and depression as a result of what occurred to her. The offending has affected her self-worth, employment and relationships with others. NH stated that the appellant's actions changed her from being a happy child to someone who became confused, angry and sad. Between 2006 and 2009 she missed many school days and between 2006 and 2018 she began drinking and dabbling in drugs. She became anxious and depressed. In effect, both JM and NH mourn the loss of their childhood innocence.

1. At the time of sentencing the appellant was 36 years of age. He has a sister and three stepsisters. His father passed away in May 2019, but his sister and mother remain supportive of him. He has two children. At the time of sentencing, he had a supportive de facto partner.
2. The appellant attended school until year 12. After leaving school and until his incarceration, he had a constant record of employment in a variety of occupations.
3. The appellant was an exceptionally talented lawn bowler. His involvement in lawn bowls continued until his mid-twenties.
4. At the time he committed count 9, he had issues with methamphetamine and alcohol. However, since forming his relationship with his de facto partner, he no longer has these issues.
5. The appellant has a criminal history. On 2 November 2007, the appellant was sentenced by O'Brien DCJ to 16 months' immediate imprisonment for two counts of sexually penetrating a lineal relative. These offences were committed against his sister on 6 August 2006, when the appellant was 22 years old and his sister was 15. The offending occurred after the offences against JM and NH. Her Honour was provided with the sentencing remarks of O'Brien DCJ. It is evident that the appellant was convicted after trial of the offences against his sister. He denied that they had occurred. O'Brien DCJ was, of course, unaware of the offending against JM and NH. Without this information, O'Brien DCJ found that the appellant's offending against his sister was an aberration and that there was a low to medium risk of reoffending.

1. Her Honour set out the relevant maximum penalties for the offences. She fully and accurately described the facts of the offending, the impact the offending has had on JM and NH, the appellant's personal circumstances (including his previous offending) and the relevant sentencing principles.
2. Her Honour found the aggravating circumstances of the offending to be:

(1) In respect of the offending against JM and NH, the appellant took advantage of his status at the Club in order to offend.

(2) All of the victims were young and vulnerable.

(3) Relevantly to JM, she was particularly vulnerable to the appellant, who was an older, charismatic and popular young man who manipulated her emotions. The appellant initiated a sexual relationship with JM when she was aged 11. The charged acts occurred when JM was aged between 14 and 15 and involved unprotected sexual intercourse. The three counts in the indictment were not isolated aberrations and the appellant engaged in persistent conduct with her over a significant period of time. The appellant's conduct towards her involved an element of moral corruption. He used her for his own sexual gratification.

(4) In respect of NH, the appellant was nine years older than her at the time of the offending. He groomed and manipulated her. As with JM, the appellant's offending had a profound negative impact upon her. His actions took away NH's innocence.

(5) In relation to KB, the offending was persistent, frightening and constituted a significant breach of trust. His actions were aggravated by the threat that the appellant had made to harm her and her mother.

1. The principal mitigating factor was the appellant's pleas of guilty, albeit that they were entered on the first day of trial. Her Honour noted that the pleas were beneficial to the victims who were spared the trauma of having to give evidence and be cross‑examined. She gave a 10% discount for the pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act). Her Honour also took into account the appellant's youth at the time of the offending against JM, and his relative youth at the time of the offending against NH.
2. Her Honour described the appellant's overall offending as 'very serious'. She correctly observed that the primary sentencing considerations for sexual offending against children are appropriate punishment and specific and general deterrence with the object of protecting vulnerable children. Accordingly, while matters personal to an offender are not irrelevant, they carry less mitigatory weight than might otherwise be the case.
3. Her Honour referred to the totality principle. She considered that accumulation of some of the individual sentences was required in order to mark the nature of the overall offending, to reflect that there were three separate complainants and to recognise the important sentencing considerations of personal and general deterrence. She also ensured that the aggregate term imposed properly measured the overall criminality involved and that the term was not crushing.
4. Her Honour's orders for concurrency and cumulacy reflect this approach.

1. The appellant's submissions in support of the ground of appeal emphasise:

(a) the appellant's pleas of guilty, albeit that they were entered at a late stage in the proceedings;

(b) the appellant's personal circumstances, including his age at the time of the commission of the offences against JM and NH and the support of his de facto partner and family; and

(c) the comparable cases.

1. In respect of the comparable cases, counsel for the appellant acknowledged that there were no factually similar cases, but submitted that, in other cases where a similar sentence had been imposed, the offending was substantially worse. The cases relied upon by the appellant are: NDY v The State of Western Australia,[1] MHE v The State of Western Australia,[2] Underwood v The State of Western Australia,[3] Van Zyl v The State of Western Australia,[4] Menmuir v The State of Western Australia,[5] FWB v The State of Western Australia,[6] DKA v The State of Western Australia,[7] LFG v The State of Western Australia,[8] Rowan v The State of Western Australia,[9] KC v The State of Western Australia[10] and Deering v The State of Western Australia.[11] Counsel for the appellant highlighted the outcomes in Rowan, KC and Deering.

1. The respondent's submissions emphasised the serious features of the appellant's offending as identified by the sentencing judge. Apart from the appellant's late pleas of guilty and the mitigatory effect of youth in respect of the offending against JM and NH, the appellant's personal circumstances, while not irrelevant, could not be accorded great weight because of the need to provide for personal and general deterrence. Personal deterrence was of heightened importance due to the appellant's prior convictions against his sister. The prior offending and the offending against JM, NH and KB show that the appellant remains a risk to vulnerable children in the community.
2. The respondent also submitted that a comparison of the present case with the cases cited by the appellant affords little practical utility, having regard to the different facts and circumstances of those cases.
3. The respondent submitted that the total effective sentence of 10 years' imprisonment did not infringe the first limb of the totality principle.

1. The sentencing principles that must be applied to a ground alleging infringement of the totality principle are well settled. A convenient statement of those principles is contained in Roffey v The State of Western Australia[12] and Kabambi v The State of Western Australia.[13]
2. It is also well established that, in cases of sexual offending against children, the primary sentencing considerations are personal and general deterrence with the object of protecting vulnerable young children. Accordingly, matters personal to an offender, although not irrelevant, are accorded less weight than in other cases. There is no tariff for sexual offences involving children because the circumstances of sexual offending and sexual offenders are widely variable. This means that the sentence imposed in one case can only provide very limited guidance in deciding what sentence should be imposed for a similar offence in another case.
3. The offences committed by the appellant were all contrary to s 321 of the Code. Section 321 is aimed not only at protecting children from sexual predators but also protecting children from themselves. See Riggall v The State of Western Australia[14], The State of Western Australia v SJH[15] and Cross v State of Western Australia.[16]

1. The appellant committed nine offences. The maximum penalty was 14 years' imprisonment for five of those offences and 7 years for the remaining four offences.
2. The appellant offended against three different victims. His offending spanned a considerable period of time. His offending against NH was at least one year after his offending against JM and at least ten years earlier than his offence against KB.
3. The appellant's offending against each victim was serious and required substantial punishment. The sentencing judge's characterisation of the appellant's overall offending as 'very serious' was entirely appropriate.
4. In the case of JM, the appellant maintained a sexual relationship with her for a period of four to five years. The charged acts occurred during that time. Although the appellant was 18 years old when he initiated the relationship, he was six years older than JM and was plainly aware that what he was doing was wrong. Despite knowing JM's age, he engaged in a secret sexual relationship with her while she was under the age of 16 years. The three offences in the indictment were representative of the appellant's conduct which occurred on a weekly and sometimes daily basis. The appellant engaged in unprotected sexual intercourse with JM, potentially exposing her to unwanted pregnancy at a very young age, and to sexually transmitted diseases. Significantly, this was not a case where two people, one of whom was under the age of consent, were engaged in a genuine relationship. As the sentencing judge found without challenge on appeal, the appellant took advantage of his status at the Club and JM's infatuation with him. He used her for his own sexual gratification. He bragged to others about his sexual conquest of JM. The offending has had significant and long‑lasting adverse effects on JM.
5. With respect to NH, the appellant was 22 and she was 13 years old. He took advantage of her young age to flatter and groom her. He exploited her for his sexual gratification. While it must be recognised that counts 4, 5, 6 and 7 occurred in the one series of events, the appellant continued to groom and control NH after she returned home. These actions are described at [28] ‑ [29] above. As with JM, the offending against NH has had a serious, long lasting, adverse effect upon her. The appellant deprived NH of her innocence. Although not as persistent as his offending against JM, the offending against NH spanned a period of months.
6. The offence against KB, which occurred 10 to 12 years after the offending against NH, constituted a significant breach of trust. The appellant was her godfather and she called him uncle. The appellant was 33 and KB was 14 years old. Although opportunistic, the offending was persistent and frightening. The appellant breached the privacy that KB was entitled to in a bathroom, in effect groped her and pursued her when she retreated to her bedroom. The appellant only desisted when KB called out for her mother's dogs. The appellant was aware that KB's mother had passed out, leaving a vulnerable KB to fend for herself. The offending was aggravated by his threat to kill her mother and hurt KB if she told anyone what he had done.
7. The only substantial matters in mitigation were the appellant's pleas of guilty, entered on the first day of his scheduled trial, for which he received a generous discount of 10% pursuant to s 9AA of the Sentencing Act and his age at the time of the offending against JM and, to a lesser extent, against NH.
8. It is plain from the appellant's behaviour towards JM, NH and his sister that his offending was motivated by his desire to sexually gratify himself rather than genuine affection for the victims. The appellant took advantage of his position in the bowling club and with the parents and carers of the victims. The offending against JM, NH and KB was predatory and committed with no regard to the welfare of his young and vulnerable victims.
9. The appellant is not a person of prior good character. It is clear from the offending against KB, which occurred 10 to 14 years after the offending against JM and NH (and his sister), that the appellant poses some risk of reoffending against vulnerable underage children. Her Honour was right to emphasise personal deterrence and the protection of vulnerable children.
10. We have read the many cases cited by the appellant. The outcomes in these cases depend very much on their individual facts and circumstances. This means that only a broad comparison of those cases with the present case is possible. We do not regard the outcome of this case as standing outside the range of sentences imposed and reviewed by this court in other cases involving serious offending.
11. Some accumulation of the sentences imposed was required to reflect the fact that the appellant offended against three victims at different times.
12. In determining whether a breach of the totality principle has been demonstrated, it is important to keep in mind the discretionary character of the sentencing exercise, and the consequent room for a range of sentences none of which can be said to bespeak error. It is basic, but nonetheless important, that an appellate court cannot substitute its own opinion merely because the appellate court would have exercised the sentencing discretion differently. Rather, the outcome - in other words the sentence imposed - must be such as to reveal that some error of principle must have occurred, albeit that the error is not specifically identifiable.
13. The total effective sentence of 10 years' imprisonment is at the upper end of the range open to the sentencing judge on a proper exercise of her discretion. However, having regard to the particular facts and circumstances of the case, we have not been persuaded that the total effective sentence infringed the first limb of the totality principle. It bears a proper relationship to the appellant's overall criminality involved in all of the offences, having regard to all of the circumstances of the case, including the mitigating factors. It is not unreasonable or plainly unjust. The ground of appeal has not been made out.

(1) An extension of time is granted.

(2) Leave to appeal is granted.

(3) The appeal is dismissed.

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

[1] NDY v The State of Western Australia [2020] WASCA 172.

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

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

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

[5] Menmuir v The State of Western Australia [2018] WASCA 13.

[6] FWB v The State of Western Australia [2016] WASCA 118.

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

[8] LFG v The State of Western Australia [2015] WASCA 88.

[9] Rowan v The State of Western Australia [2009] WASCA 185.

[10] KC v The State of Western Australia [2008] WASCA 216.

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

[12] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].

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

[14] Riggall v The State of Western Australia [2008] WASCA 69.

[15] The State of Western Australia v SJH [2010] WASCA 40.

[16] Cross v The State of Western Australia [2018] WASCA 86 [39] - [49].