NDY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 172 (23 October 2020)

Indecent dealing with a child over 13 / under 16 years, by kissing Y.

Indecent dealing with a child over 13 / under 16 years, by touching Y's breasts.

Aggravated sexual penetration without consent, by penetrating Y's vagina with his finger.

Attempted aggravated sexual penetration without consent, by attempting to penetrate Y's vagina with his penis.

Indecent dealing with a child over 13 / under 16 years, by touching Y's breasts and buttocks.

Aggravated sexual penetration without consent, by introducing his penis into Y's mouth.

1. N appeals against his convictions on the sole ground that the trial judge erred in ruling that the evidence on count 1 in relation to A, and the evidence on counts 2 - 8 in relation to Y, were cross-admissible pursuant to s 31A(2) of the Evidence Act 1906 (WA). He contends that the evidence on count 1 did not have 'significant probative value', within the meaning of s 31A(2)(a) of the Evidence Act, in the proceedings for the offences alleged in counts 2 - 8. The application for leave to appeal on this ground has been referred to the hearing of the appeal.
2. The State appeals against the sentences imposed on N on two grounds. Ground 1 contends that the individual sentences for counts 5, 6 and 8 are manifestly inadequate. Ground 2 contends that the total effective sentence of 5 years' immediate imprisonment infringes the first limb of the totality principle. Leave to appeal has been granted on these grounds.
3. In our view, the sole ground of N's appeal against conviction is not established, but both grounds of the State's appeal against sentence are established. N should be resentenced to a total effective sentence of 7 years 6 months' imprisonment.

1. The State advanced the following case at trial.

1. A was 15 years old at the time of the offending in 2006, and 28 years old at the time of trial. N was 47 years old at the time of trial.[1]
2. On an unknown date in December 2006, N told A about a waitressing job at the Yanchep Inn. He said A could stay with him and he would transport her to and from work because he lived close by. A sought the job and stayed with N. She slept in his double bed with him as there was only one bed in his room.[2]
3. One night, A was asleep and was woken up because N was touching her. He put his hand down her pants and was touching her vaginal area (count 1). She grabbed his hand, pulled it out of her pants and threw it away as hard as she could. N said, 'It's okay, it's okay'. A stayed awake for the rest of the night and asked her mother, H, to come and pick her up the next day, which H did.[3]

1. H and V were best friends. Y, who is V's daughter, grew up knowing N and he used to live with Y when she was a little girl. In 2014 or 2015, when Y was 13 years old, Y saw N for the first time in a long time after he 'came down from the mines'. This occurred when Y and V stayed overnight at H's home in a metropolitan suburb.[4]
2. On that night, Y slept in the same bed as V and N. Y woke up to find that V was not there and N was touching her breasts (count 2).[5]

Counts 3 - 5: offences against Y on weekend of Mandurah Crab Festival

1. On a later occasion, during 2015 when Y was still 13 years old, V went away for the weekend to the Mandurah Crab Festival leaving Y at home alone. N came over, and Y was sitting on a couch when N started kissing her (count 3). He told her that he was French kissing her and that he loved her. N then touched Y's breast (count 4) and put his hand in Y's pants and penetrated her vagina with his finger (count 5).[6]

Counts 6 - 7: offences against Y at N's brother's house

1. On an occasion which was proximate to Y's 14th birthday, she was at her home with N, V and H. The adults were drinking. Y went with N to his brother's house, but his brother was not there that night. N got into bed with Y, pulled off her underwear, got on top of her and started to kiss her and rub her body. N told Y that he missed her, and took his own clothes off. N attempted to penetrate Y's vagina with his penis (count 6). Y pushed N off her and told him to stop. N then continued to touch Y's breasts and bottom (count 7).[7]

1. On the final occasion anything happened to her, Y was 15 years of age and at home in a different metropolitan suburb where she was living at the time with V and N. V had been drinking and told Y to go for a drive with N to pick up some take-away food. During the drive, N told Y that she was beautiful, that she had grown up and that he missed her. On the way home, N pulled down a side street and stopped the car. N pulled his pants down and asked Y to 'suck his dick'. Y asked to go home, but N said, 'no'. N then grabbed Y's head and pushed it down, forcing his penis into Y's mouth (count 8).[8]

1. In the course of her opening, the prosecutor alleged that N had a sexual interest and a particular tendency. The prosecutor said that N had a sexual interest in young, teenage girls with whom he has close family relationships, and a willingness to act on that sexual interest when the opportunity arises. The prosecutor said that if, for example, the jury accepted the evidence of A and that led the jury to accept that N had that interest and tendency, then the jury could use that finding in relation to the charges involving Y, to assist their determination as to whether Y was telling the truth about what was happening to her.[9]

1. N's case at trial was that he did not do any of the things that had been alleged against him.[10]

1. The following is a summary of the evidence led at trial, so far as it is relevant to the ground of appeal.

1. A lived in another State until she was about 14 years old, and met N at various family functions when she came to live in Western Australia. Around Christmas time, when she was 15 years old, N (who worked as a chef at the Yanchep Inn) suggested that A come and do waitressing work at the hotel. She accepted that offer, and it was arranged for her to stay at the house of N's friend, with whom N was living. A slept next to N in a double bed in one of two bedrooms at the house.[11]
2. A gave evidence as to the circumstances of the commission of count 1, consistently with the prosecutor's opening summarised at [9[12]] above.12 She indicated that the offence occurred on the first night she stayed a[13]the house.13
3. The next morning, N took A shopping and she spoke to her mother, H, by telephone. A told H that she wanted to come home, and her mother picked her up and took her home.[14]
4. After the offence, A saw N at family functions and when he would visit H about once every couple of months. A would greet N with a hug, as she did all her uncles.[15]

1. Y's evidence-in-chief was given by her adoption of a child witness interview (CWI) she gave to police, in which she described the offending consistently with the prosecutor's opening summarised at [10] - [14] above.
2. In her CWI, Y said that she looked on N as an uncle.[16] She said that the conduct the subject of count 2 occurred when N 'first came down from the mines'.[17]
3. In cross-examination, Y said that she remembered meeting N as a young girl and that he had lived with her mother in the same house at that time. She said that she saw N for the first time in a long time when she was 13 years old and he 'came down from the mines'. N was staying with H, and would frequently come to the house where Y was living with her siblings and her mother, V.[18] Y also said that she looked on N as a father figure.[19]
4. Y maintained her account of the offending under cross‑examination.

1. N elected to give evidence at trial. He denied engaging in any sexual conduct with either A or Y.

1. N's evidence was that he had worked at the Yanchep Inn for four years, between 2004 and 2007. He was renting a house in Yanchep with his wife and family until his wife left him in around 2006 - 2007. After his marriage ended, N remained in the rental house for about a month, before moving in with a friend for about a year. His friend's house had three bedrooms, one of which had no bed and was used for storage. N continued working at the Yanchep Inn.[20]
2. N subsequently moved in with V for a couple of months and was driving trucks to and from Melbourne. In 2008, he got work as a chef, and subsequently at the mines, in Laverton. He remained in Laverton until 2013, only returning to Perth once for a cousin's funeral.[21]
3. When he returned to Perth in 2013, N was staying with another sister in Mandurah and worked as a fly in/fly out worker at a mine at Christmas Creek, on a two weeks on/one week off schedule. He worked in that job until he sustained an injury at work in May 2014. He was placed on light duties until he was made redundant in about mid-2016. N stayed with his brother in a shared house until about January 2015, and then took over the lease of V's house where he stayed for about 6 months. He then stayed at friends' houses.[22]
4. N's evidence was that V's children (including Y) looked at him like a father figure.[23]

1. In relation to count 1, N recalled an occasion when H asked him to take A to Yanchep for a couple of days and asked if there was any work up there. N took A to the friend's house in Yanchep where he was staying at that time, and introduced her to his boss at the Yanchep Inn. His boss agreed to take A on as a waitress, and N took A to shop for some waitress clothes. At around 9 pm, N put A in bed and fell asleep at the base of the bed.[24]
2. In the morning, N asked his friend if A could stay. N's friend seemed 'a bit if-ish' about it, which meant N did not think it was a good idea for A to stay. A borrowed N's phone to call H, and asked if her mother would pick her up, which H did that afternoon. N said that no form of touching occurred that night in Yanchep.[25]

1. N recalled only one occasion where he was staying in a back room of H's house and V and Y stayed overnight. H and V were drinking a lot and he went to bed. When N woke up in the morning, Y was laying behind him. He was told that Y and V had jumped into bed that night after he had gone to bed.[26]

1. N said that he was aware of Y being left at home alone while her mother was at the Mandurah Crab Festival. His evidence was that he did not go to V and Y's house at all during that weekend.[27]

1. N recalled an occasion in around 2014 when H and V were drinking and V and Y were arguing. V asked N if he could take Y, and he agreed. N drove Y to the house where he was staying with his brother. He thought his brother was asleep in his room. N set Y up in a bedroom next to his, and went to his own room where he 'crashed out'. He woke up in the morning, grabbed some breakfast and took Y home. N said there was no touching or sexual activity during this visit.[28]

1. N recalled the occasion when V asked him to get some hamburgers, and had driven with Y to get the food. He returned to V's house where they ate, and he left shortly afterwards. N said there was no form of touching or sexual activity on that trip.[29]

Trial judge's ruling and directions in relation to tendency evidence

1. At the commencement of the trial, the State applied for leave to rely on evidence of each count on the indictment as being cross-admissible in relation to each other count. The basis of the State's application was that the evidence relating to each count was not only admissible to prove that count, but also admissible in relation to the other counts as propensity evidence, pursuant to s 31A of the Evidence Act. N opposed the State's application. The trial judge identified the relevant tendency alleged by the State in the following terms:[30]

The State contends that the accused has a tendency to have a sexual interest in young teenage girls who are close family members to him and a willingness to act upon that tendency when the opportunity arises.

1. The trial judge noted the State's contention that, if the jury were satisfied that N had the tendency, then it was entitled to use that finding of fact as circumstantial evidence when considering the likelihood that N did the sexual acts alleged by the complainants. The judge proceeded on the basis that the only issue at trial would be whether the alleged touching occurred.[31] His Honour did not understand there to be any issue that, if the tendency evidence was considered to have significant probative value, the requirements of s 31A(2)(b) of the Evidence Act were satisfied.[32] The judge was persuaded that the tendency evidence as described by the State would either, by itself or having regard to other evidence to be adduced during the trial, have significant probative value.[33] His Honour therefore allowed the 'State's application in relation to cross-admissibility with respect to each count on the indictment'.[34]
2. In the course of his Honour's summing up, the trial judge indicated that he would give the jury directions of law in relation to the State's submission that N had a sexual interest in young teenage girls with whom he has a close family relationship and was willing to act on that sexual interest when the opportunity arose.[35] The trial judge gave some general directions about inferences, and told the jury that they could only infer that N had that tendency if that was the only reasonable inference reasonably available.[36]
3. The trial judge then gave the jury the following direction:[37]

[T]he State says that based on the evidence that you accept you can make a finding that [N] had a particular tendency, that is a sexual interest in young teenage girls with whom he has a close family relationship, and that he was willing to act on that sexual interest when the opportunity arose.

It may be, members of the jury, that you don't need to give this direction any consideration because you may be satisfied in any event on the evidence of either complainant about the touching the subject of the count you're considering.

But if you are not so satisfied beyond reasonable doubt then you do need to give consideration as whether or not you are prepared to draw the inference which is being contended for by the State. And if you are then you can take it into account in your deliberations about other counts with respect to which you have not yet reached your verdict.

But there are some limitations about that as well. You - so I'm assuming now that you've considered, for example, the evidence in relation to count 2 and I'm assuming, for example, that you have found beyond reasonable doubt that that touching occurred in those circumstances. And that you have not yet arrived at a decision in relation to count 1.

You would be entitled to take into account the tendency finding if that's your finding having regard to all of the evidence in relation to count 2 and you are satisfied that the inference can be drawn, for the purpose of considering the evidence in relation to count 1, which concerns [A].

But having said that you must of course, as I have told you throughout the course of these directions, be satisfied beyond reasonable doubt in any event based on the evidence of [A], that the touching the subject of count 1, happened.

Even if you are prepared to draw the tendency inference it cannot be used by you to make up for any holes or gaps in the evidence of [A] with respect to that alleged touching. It may assist you in your deliberations on the basis that you may think it is more likely that that touching also occurred.

But before you use it in that way you must have regard to the objective circumstances based on the evidence as you find it with respect to the offending that you are considering.

It may be that you deal with count 1 first. And if you make a finding of guilt beyond reasonable doubt, and if you are prepared to draw the inference contended for by the State, then you can take that into account when you consider count 2 in particular.

Because there is some similarity with respect to the timing and the place of the alleged offending, and it might also explain the other counts which concerned [Y] on the indictment. But as I've said, if you make the tendency finding, you cannot use this finding in substitution for the evidence of the alleged offence, the subject of the count on the indictment that you are considering.

You must not reason, simply because you find that [N] has the tendency to behave in the manner alleged towards his young, familial, female relations, that he therefore committed the offence with which he has been charged that you are considering.

None of this evidence, and the finding based on it, proves, in itself, the count on the indictment which you are considering. It is simply another factual matter that you may take into account if you wish, for the purpose of your deliberations.

So members of the jury, the position will still remain, with respect to whichever count you are considering on the indictment, that ultimately, you must be satisfied beyond reasonable doubt that the accused committed the act, the subject of the touching on that count, before you could convict him.

1. N appeals against his conviction on the following ground (omitting particulars):

The trial judge erred in ruling that the evidence relating to count 1 in relation to complainant [A] and the evidence relating to counts 2 to 8 in relation to complainant [Y] were cross-admissible pursuant to section 31A(2) of the Evidence Act.

1. In the appeals, oral submissions on behalf of N were advanced by Ms Kumar, who indicated that the only complaint on this ground concerned s 31A(2)(a) of the Evidence Act. That is, the contention is that the evidence did not, either by itself or having regard to other evidence, have significant probative value. Ms Kumar, in our view quite properly, did not contend that the requirement for admissibility under s 31A(2)(b) was not satisfied.[38]
2. It is not in issue that the conduct the subject of each count on the indictment could be characterised as evidence of a tendency which N had.[39] On N's case, the question is whether the conduct the subject of count 1 had significant probative value in the case against N for counts 2 to 8 and vice versa.[40]
3. In contending that the answer to this question is 'no', Ms Kumar focuses on the time gap of at least 7 years 5 months between the alleged offending against A (in December 2006) and the commencement of the alleged offending against Y (from an unknown date after May 2014). She also focuses on the fact that the alleged offending against A was a single incident that did not involve the use of force to overcome resistance, whereas the offending alleged against Y was repeated and in many instances involved the use of force to overcome Y's resistance. N also relies on the fact that A is his niece, while he is not biologically related to Y.

1. For the following reasons, in our view, the ground of appeal against conviction is not established.

1. Section 31A of the Evidence Act provides:

31A. Propensity and relationship evidence

(1) In this section -

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

1. The principles relevant to whether propensity evidence or relationship evidence has significant probative value within the meaning of s 31A(2)(a) of the Evidence Act were summarised in RMD v The State of Western Australia as follows:[41]

(1) In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.

(2) In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. Section 31A(2)(a) expressly requires that attention be directed to whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.

(3) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of [the] probability of the existence of a fact in issue.

(4) The test in s 31A(2)(a) will be satisfied if the court considers (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.

(5) The adjective 'significant' in the phrase 'significant probative value' in s 31A(2)(a) connotes important or of consequence.

(6) If propensity evidence has probative value, then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

(7) The high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.

(8) The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value. (footnotes omitted)

1. Further, in The State of Western Australia v Jackson,[42] this court made the following four points:

First, the term 'propensity evidence', as defined in s 31A(1), has a broad connotation. The term is defined to include, amongst other things, 'evidence of the conduct of the accused person' and 'evidence ... of a tendency that the accused person has or had'. The word 'conduct', in this context, refers to (relevantly to this appeal) the manner in which the accused person behaves or has behaved. The words 'a tendency', in this context, refer to (relevantly to this appeal) a proclivity, an inclination, a disposition, a predisposition or a predilection that the accused person has or had.

Secondly, an assessment of the probative value of propensity evidence requires the court to determine the extent to which:

(a) the evidence is capable of proving the propensity; and

(b) proof of the propensity increases the likelihood of the commission of the offences.

Thirdly, evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to (1) prove the commission of a crime, (2) prove the identity of the person who committed a crime, the commission of which is not in dispute, or (3) prove a mental element of an act, which act itself may or may not be proven.

Fourthly, even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether, of itself or having regard to other evidence adduced or to be adduced, the evidence in question is properly characterised as having significant probative value. (citations omitted)

1. The degree of particularity in which the tendency is expressed serves as an indicator as to whether the tendency evidence is of 'significant probative value'. As Leeming JA observed in El-Haddad v R:[43]

It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.

1. The admissibility of tendency evidence in cases of alleged sexual offences against children in a similar statutory context to the present has been considered by three relatively recent decisions of the High Court: Hughes v The Queen,[44] R v Bauer (a pseudonym),[45] and McPhillamy v The Queen.[46]
2. As was emphasised in Bauer,[47] different approaches to the assessment of significant probative value are taken in cases involving multiple sexual offences against a single complainant and cases involving sexual offences against multiple complainants. When multiple complainants are involved, there must ordinarily be some feature about the offending which links the offences together. The mere fact that an accused has committed an offence against one complainant is not ordinarily significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true. By contrast, in a single complainant case, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. That is because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents.
3. The approach to be taken to cases involving multiple complainants is illustrated by the decisions in Hughes and McPhillamy.
4. In Hughes, the accused was alleged to have offended against many different complainants in a variety of different ways and circumstances. The feature which linked the offending together was the high risk of detection involved in offences against female children under 16 years of age. The majority were of the view that this linking feature gave the evidence of each alleged sexual offence significant probative value in relation to each other alleged sexual offence. The majority recognised that an inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. The level of disinhibited disregard of the risk of discovery by other adults reflected in the accused's offending was even more unusual as a matter of ordinary human experience.[48] A jury might well be disinclined to accept a complainant's evidence, taken alone, that the accused had engaged in conduct which was so much at odds with the jury's experience of the probabilities of ordinary human behaviour. The majority concluded:[49]

Proof of the appellant's tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant's conduct might otherwise have raised.

The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.

1. In McPhillamy, the accused was charged with six counts of sexual offences against the complainant, A. At trial, A gave evidence that, on two separate occasions in or around 1995 while he was an altar boy under the supervision of the accused, who was an acolyte, the accused followed him into a toilet and committed various sexual offences against him. Over objection from defence counsel, the trial judge permitted the prosecution to adduce tendency evidence from B and C. B and C gave evidence that, in 1985, the accused committed various sexual offences against them when they were boarders at the college where the accused was an assistant housemaster. The conduct alleged to have been committed against A, B and C was clearly sexual in nature.
2. The High Court held that evidence of the offending against B and C did not have significant probative value in the case alleging offending against A. While accepting that the evidence of offending against B and C was capable of establishing that the accused had a sexual interest in young teenage boys which was likely to be enduring,[50] the plurality observed:[51]

Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.

1. In finding that the evidence lacked significant probative value, it was important that there was no evidence that the accused had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the college. In those circumstances, the inference that, at the dates of the offences against A, he possessed the tendency to act was weak. Also important was the very different circumstances of the offending and very different nature of the supervision which was relied on to link the offending. The court concluded that B's and C's evidence established no more than that a decade before the subject events the accused had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the accused committed the offences against A to a significant extent.[52]

1. Where an appellate court considers the admission of evidence, under s 31A of the Evidence Act in the context of an appeal against conviction, following its admission in the trial, the determination of whether the trial miscarried in consequence of the admission of the evidence is concerned with the use made of the evidence at the trial.[53]
2. That is, as Buss P noted in Wark v The State of Western Australia,[54] the task for this court is to decide for itself whether the evidence, either by itself or having regard to other evidence adduced at the trial, had 'significant probative value'.

1. In the present case, the tendency which the evidence on each count was led to establish was expressed with a relatively high degree of particularity.[55] The tendency is for N to have a sexual interest in young, teenage girls with whom he has a close family or family-like relationship, and a willingness to act on that sexual interest when the opportunity arises.
2. That the alleged offending against A involved a single occasion of offending at least 7 years 5 months before the offending against Y is relevant to the assessment of significant probative value. However, it is also relevant to note that N allegedly offended against A on the first and only opportunity which he had to do so when she was a young teenage girl. A met N when she was 14 years old and saw him at family functions where it was not suggested that there was an opportunity for him to offend against her. N is alleged to have offended against A on the first night she stayed with him. She left his house the following day and, while A saw N at family functions, it was never suggested to her that she had done so in circumstances where N had an opportunity to reoffend against her.
3. Further, there is no evidence that N had any opportunity to offend against young, teenage girls with whom he had a close family relationship between offending against A and Y. He was working in Laverton from 2008 to 2013, and gave evidence that he only returned to Perth once for a funeral during that time. He was then working a fly in/fly out roster at Christmas Creek in 2013 - 2014. There was no evidence that he had the opportunity to offend against young, teenage girls with whom he had a close family relationship from his return to Perth until May 2014.
4. In addition, the evidence of Y was that N offended against her on the first occasion he had opportunity to do so when she was a young, teenage girl. While she knew N when she was a very little girl, Y's evidence was that the offending against her began after she saw N for the first time in a long time after he 'came down from the mines'.
5. We do not regard the lack of biological relationship between N and Y as detracting from the significant probative value of the evidence of the offending against A. Y gave evidence that she looked on N as an uncle and as a father figure. N's evidence was that V's children, including Y, viewed him as a father figure. There was clearly a familial or familial‑like relationship between N and Y despite the lack of a biological relationship.
6. A distinguishing feature of some of the alleged offending against Y and the alleged offending against A concerns the use of force to overcome a lack of consent. However, as Hughes illustrates, the fact that there may be distinguishing features of the offending does not deny the significance of a link between the offending. In Hughes the relevant link was the brazenness of the offending. In the present case, the relevant link is the age, sex and familial relationship of the victims to N.
7. As was noted in Hughes, an inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. The willingness to do so with a member of the adult's biological or de facto family members, such as a daughter or a niece, is extraordinary. The significance of the evidence of N's tendency to act on a sexual interest in young, teenage girls with whom he has a close family relationship, when the opportunity arises, is that it is capable of removing a doubt which the nature of N's relationship with A or Y might otherwise have raised as to whether the conduct occurred.
8. It is also important to bear in mind that, in the present case, the contest between the prosecution and defence was whether the State had proved, beyond reasonable doubt, that the sexual conduct occurred at all. If the jury were satisfied to that standard that the conduct described by Y occurred, then there was no suggestion that she might have consented to the conduct the subject of counts 5, 6 and 8 or that N might have reasonably thought that to be the case. While evidence of the offending against A may not have affected the likelihood that Y consented to the conduct against her, consent was not a real issue at trial. Evidence of the offending against A did have significant probative value in relation to the question of whether the sexual conduct alleged by Y occurred at all, which was the only contentious element of the alleged offences against Y.
9. In our view, evidence of offending against A was capable of establishing that N had a sexual interest in young, teenage girls with whom he has a close family relationship, and a willingness to act on that sexual interest when the opportunity arises. Further, that tendency, if established, made it significantly more likely that N offended against Y in the manner which she described in her evidence. Evidence of the offending against A had significant probative value in relation to each of the counts alleging offending against Y. Equally, the offending against Y had significant probative value in relation to the count alleging offending against A. The evidence of the offending on each count on the indictment was cross-admissible on other each count and was properly admitted.
10. A further point may also be noted. The question is not only whether evidence of offending against A by itself had significant probative value in relation to the other offending. It is sufficient if that evidence had significant probative value having regard to other evidence led at trial. It was open to the jury to consider count 1 first, and be satisfied beyond reasonable doubt, on the basis of the evidence of A, that N committed that offence. However, the jury might not be satisfied that the conduct charged in count 1 established the tendency alleged by the State. It would be open to the jury to go on to consider count 2, and be satisfied beyond reasonable doubt, on the basis of the evidence of Y, that N committed that offence. If satisfied that N committed counts 1 and 2, the jury might then have been satisfied on the basis of the combination of that evidence that N had the alleged tendency. The jury might then have regard to that tendency in considering the other counts. As illustrated by this example, even if the evidence of the offending against A did not have significant probative value by itself, it did have significant probative value having regard to the other evidence.

1. For the above reasons, in our view the sole ground of appeal against N's conviction is not established. While we would grant leave to appeal on that ground, the appeal against conviction should be dismissed.

State appeal against sentence: trial judge's findings and approach

1. We turn to consider the State's appeal against the sentences imposed on N in respect of the offending.

1. The trial judge made the following findings as to the circumstances of the offending.
2. The trial judge found that the offending alleged by count 1 against A occurred in December 2006, when A was 15 years old and N was about 34 years old. The offending occurred on the first night when A was sleeping in the double bed with N, when she came to Yanchep to see whether she could obtain employment at the Yanchep Inn. She awoke when she found that N had his hands inside her pants and was touching her genital area. Immediately she became aware that she was being indecently dealt with, A slapped N's hand away. She was so concerned about what had happened that she had difficulty sleeping for the rest of the night.[56] The trial judge accepted that the offence against A was opportunistic and occurred as a result of N indicating that he was prepared to see whether she could obtain work at the place N was then working.[57]
3. In relation to count 2, the trial judge found that Y was aware of N through her family, and that he was 'a cultural uncle to her when she was a very young child'. The relationship 'rekindled' when Y was 13 years old, after she had not seen N for a very long time, when he returned from the mines and stayed overnight at H's house.[58] That night, Y slept in the same bed as N and V. The offending occurred in the early hours of the morning, when Y awoke in the bed to find that her mother was no longer there and that N was touching her breasts. The trial judge rejected N's evidence that Y and V came into the bed after he had fallen asleep.[59]
4. The trial judge was satisfied that N had a sexual interest in both victims who were in a familial relationship with him, one biological and one cultural, and that he was prepared to act on that sexual interest when the opportunity arose.[60]
5. N's contact and relationship with Y developed over the period during which the offences the subject of counts 3 to 8 occurred, while Y was aged 14 and 15 years.[61]
6. The next occasion when offending happened was on the weekend of the Mandurah Crab Festival in 2016. Y remained at home whilst her mother and younger brother and others went to Mandurah for the festival and stayed in a motel, having left on the Friday evening. At this time, N was in regular and frequent contact with Y's family and had lived in the house with the family for a period of about six months at one time. From time to time Y's friends were present, and H called in to check on Y on two occasions over the weekend.[62]
7. During the course of the weekend, probably on the Friday night, N went to Y's home and was alone with her in the house. N's purpose in being alone with Y was to show affection towards her. N committed the offences charged in counts 3, 4 and 5 by kissing Y, touching her breasts and penetrating her vagina with his finger without her consent. The sexual activity was unwelcome and Y resisted but her resistance was ineffective. It was very plain and obvious to N that Y was uncomfortable and did not want to participate in the sexual activity that he perpetrated on her.[63]
8. Counts 6 and 7 occurred on Y's 14th birthday, when N took her to the house he was housesitting with his brother. N's brother was not present in the house at this time. The opportunity to offend was presented to N when he agreed to take Y to his place as a result of her poor behaviour and conduct to her mother and family. Although there was an element of father-like care and concern, and a willingness to assist V with Y, N also took the opportunity to commit the offences. Notwithstanding the size of the house, Y slept in N's bed and, during the course of the evening, he sexually abused her by attempting to penetrate her vagina with his penis, and indecently dealt with her by touching her breasts and buttocks.[64]
9. Count 8 was the last occasion that there was inappropriate sexual contact between N and Y. That occurred when Y was aged 15 and N was 44 or 45 years old. While collecting take-away food with Y, N drove down a side street and forcibly without consent sexually penetrated Y by introducing his penis into her mouth in the way that she described. He committed this offence notwithstanding her resistance.[65]
10. N's offending against Y was more than one-off and opportunistic. There was an element of grooming by N during the period of the offending, at which time Y was particularly vulnerable by reason of her own personal and family circumstances. N took advantage of the trust which arose from his relationship with V to commit the offences against Y.[66] The offending against Y was sustained over a two-year period, and N took the opportunity to sexually offend against Y whenever the opportunity presented itself by reason of his association with her through her mother.[67]

1. The trial judge made the following findings as to the impact of N's offending on A and Y.[68]
2. Each of the victims was, by reason of their own personal circumstances, particularly vulnerable. The impact of the offending was substantial and is still ongoing as can be seen in respect of the victim impact statements that they provided to the District Court.
3. Even though the offence against A was a 'one-off', it had a lasting impact on her, including her inability to trust even her family members around her children. N's offending substantially impacted on A's ability to form and enjoy relationships, and place trust and faith in family and other friends.
4. The impact upon Y was also considerable. Y and V were unable to share a caring and nurturing relationship during the period of the offending, in part because of the offences which N was committing against Y. Y was plainly (and not unsurprisingly by reason of N's friendship with her mother) unable to tell her mother what was happening. And this simply exacerbated her own personal difficulties with friendships and at school, and her behaviour.

1. The trial judge made the following findings as to N's personal circumstances, either expressly or by incorporation of the facts stated in N's written sentencing submissions.[69]
2. N was 47 years old at the date of sentencing. He was born in Perth, and his parents separated when he was five years old. He was raised by his mother and step-father, along with two brothers and two sisters. N went to live with his biological father when he was 14 years old when his mother 'kicked him out of the house'. His biological father was prone to violence against N, who lived with him for only 3 months before moving between hostels and living on unemployment benefits.
3. By the age of 16 years, N was able to get work doing odd jobs as a cleaner, kitchenhand and brickies' labourer. He then started training as a chef and, although he did not qualify, he spent much of his working life as a cook. He had also worked as a truck driver, including on mine sites. In January 2014, N suffered whiplash and sustained nerve damage to his shoulder when a mining dozer that he was driving hit a large piece of unmarked iron ore. He flew to Perth, where he underwent shoulder surgery. He received workers compensation and underwent physiotherapy for 18 months. N was on light duties until late 2015, when he was made redundant. He has not worked since then other than on a voluntary basis and survived on the payout he received and subsequently on unemployment benefits.
4. N married his former wife in 1999. The marriage lasted 12 years and produced two children. The marriage disintegrated in 2006 - 2007 due to N's methamphetamine use, and he did not see his children again until 2008.
5. N was not remorseful and had no insight into the seriousness of his offending. N had a prior criminal history (generally for traffic, drug and assault offences which had been dealt with by fine) and could not be sentenced on the basis that he was otherwise a person of good character.

1. The trial judge regarded N's disadvantaged childhood, his good working history and his giving up of alcohol and drug use as mitigating factors. His Honour noted that N had spent two periods in custody in relation to the current matters, so that any sentence of imprisonment could be backdated to 2 March 2019.[70]
2. The trial judge was positively satisfied that the seriousness of the offending was such that a sentence of immediate imprisonment was the only appropriate sentencing option. His Honour referred to the general principles in relation to sentencing child sexual offenders summarised by Mazza JA in Indich v The State of Western Australia.[71]
3. The trial judge noted that the substantial age disparity between N and his victims was an aggravating feature of the offending.[72] His Honour then imposed the sentences referred to in the table at [2] above, expressing the view that a total effective sentence of 5 years' immediate imprisonment was [73]propriate.73

1. The State appeals against the sentences imposed on N on two grounds. Ground 1 contends that the individual sentences for counts 5, 6 and 8 are manifestly inadequate. Count 2 in effect contends that the total effective sentence of 5 years' immediate imprisonment infringes the first limb of the totality principle.

Disposition of appeal against sentence General principles

1. The general principles applicable to a State appeal against sentence on grounds of manifest inadequacy and breach of the first limb of the totality principle are well established. In The State of Western Australia v BKJ,[74] they were summarised in the following terms:

In The State of Western Australia v Wilson [[2015] WASCA 119], we explained the general principles applicable to a State appeal against sentence.

This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [[1999] HCA 29; [1999] HCA 29; (1999) 195 CLR 665 [15]]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.

The grounds of appeal allege implied rather than express error. Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King [[1936] HCA 40; (1936) 55 CLR 499] and Barbaro v The Queen [[2014] HCA 2; [2014] HCA 2; (2014) 253 CLR 58 [26]].

The orthodox approach to the question of manifest inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen [(1989) 38 A Crim R 337, 342] and Munda v The State of Western Australia [[2013] HCA 38; (2013) 249 CLR 600 [33]].

The first limb of the totality principle requires that the total effective sentence 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: Roffey v The State of Western Australia [[2007] WASCA 246 [24]].

A relevant factor in the consideration of the appellant's grounds of appeal is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.

1. It is convenient to begin by considering whether the individual sentences imposed for counts 5 and 8 were manifestly inadequate.

1. The maximum penalties for the offences of which N was convicted are indicated at the table to [2] above. Counts 5 and 8 charged an offence against s 326 of the Criminal Code. Under s 326(1), a person who sexually penetrates another person without the consent of that other person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years. Under s 319(1)(b), it is a circumstance of aggravation where the victim is over the age of 13 years and under the age of 16 years.
2. The maximum penalty for an offence against s 326(1) may be compared to the maximum penalty for an offence against s 325 of the Criminal Code. Under s 325(1), a person who sexually penetrates another person without the consent of that other person is guilty of a crime and liable to imprisonment for 14 years. Section 325 creates an offence of the same conduct as proscribed by s 326 but absent a circumstance of aggravation.
3. The maximum penalty for an offence against s 326(1) may also be compared to the maximum penalty for an offence against s 321(2) of the Criminal Code. Under s 321(2), a person who sexually penetrates a child of or over the age of 13 years and under the age of 16 years is guilty of a crime and is liable to the punishment prescribed in s 321(7) of the Criminal Code. Absence of consent is not an element of the offence. The ordinary maximum penalty for an adult offender is 14 years' imprisonment, although this increases to 20 years where the child is under the care, supervision or authority of the offender.

1. As Mazza JA noted in the passage from Indich cited by the trial judge:[75]

The primary sentencing considerations for sexual offending against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case. There is no tariff for sexual offences against children. The ordinary disposition, as a matter of fact, is that terms of immediate imprisonment are imposed for offences of the type committed by the appellant.

1. In considering customary sentencing standards, it is informative to have regard to the standards of sentencing for offences contrary to s 325 of the Criminal Code. That is the offence of sexual penetration without consent absent any circumstance of aggravation, where the maximum penalty is 14 years' imprisonment. This court summarised the general approach under s 325 in McNally v The State of Western Australia:[76]

The general sentencing standards for offences contrary to s 325 of the Code are well established. There is, however, no tariff for those offences because of the great variation that is possible in the circumstances of the offending and the offenders. 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. In NPA v The State of Western Australia [2018] WASCA 131 [51], it was observed:

In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual. It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case. (citations omitted)

See also Kabambi v The State of Western Australia [2019] WASCA 44 [23] and Lakay v The State of Western Australia [2019] WASCA 46 [38].

There is no 'hierarchy' of sexual penetration. See C v The State of Western Australia [2006] WASCA 261. The observations in NPA in relation to a single count of penile penetration of the vagina where there is a plea of not guilty apply generally in relation to a single count of penile penetration of the anus where there is a plea of not guilty.

1. The State points to a number of recent decisions of this court where an offender was found guilty of an offence against s 325 of the Criminal Code after trial and received sentences which were markedly higher than the individual sentences imposed for counts 5 and 8 in the present case.[77]
2. Thomas v The State of Western Australia provides a recent example of an appeal from an individual sentence of 6 years' imprisonment in respect of an offence of aggravated sexual penetration without consent. In that case, the circumstance of aggravation was that the relative young offender did bodily harm to the victim.[78]
3. N refers to the decision of this court in Greenland v The State of Western Australia.[79] In that case the offender, who was 21 years old at the time of offending, pleaded guilty to three counts of sexual penetration of a child contrary to s 321(2) of the Criminal Code and one count of attempting that offence. The victim was a 15 year old girl who attended the same surf club as the offender. Although absence of consent was not an element of that offence, the aggravating circumstance of absence of consent was established on a trial of issues. The offences occurred on consecutive days and involved penile penetration of the victim's vagina, anus and mouth. The reduction for the pleas of guilty under s 9AA of the Sentencing Act 1995 (WA) was only 5%. The offender's appeal against the total effective sentence of 5 years 6 months' imprisonment (including on totality grounds) was dismissed.

1. There were a number of aggravating features of the two sexual penetration offences charged in counts 5 and 8. There was a very significant age difference between N and Y. He abused the trust placed in him by taking the opportunity of sexually offending against Y. It was clear that Y was not consenting and N used force to overcome her resistance to him. Y was in a very vulnerable position, and the offending had, as would be expected, a considerable adverse effect upon her, which was ongoing at the date of sentencing. A further aggravating feature of count 8 was that the sexual offending occurred in a public place. It was also an aggravating feature that the offending occurred as part of an ongoing pattern of sexual abuse of a girl who looked on N as an uncle or father figure.

1. There were limited mitigating factors operating in N's favour. He did not have the mitigating benefit of pleas of guilty, remorse or youth. While he did not have a prior record of sexual offending which might elevate the importance of personal deterrence and public protection as sentencing considerations, N's criminal record meant that he could not be described as a person of prior good character.
2. The only limited mitigation in this case was provided by N's difficult childhood (which was not of a kind attracting the considerations referred to in Bugmy v The Queen[80]), as well as his good employment history and his steps to reduce substance abuse.

1. Having regard to the aggravating features of the circumstances of the offending, the limited mitigating factors, the maximum penalty of 20 years' imprisonment and all relevant sentencing principles and considerations, we are satisfied that the individual sentences of 2 years and 6 months and 3 years imposed for counts 5 and 8 respectively are unreasonable or plainly unjust. Error is to be implied from individual sentences for those counts which are manifestly inadequate.
2. Material error having been established, it will be necessary for this court to determine for itself the appropriate sentences to be imposed for all the offences. In these circumstances, it is unnecessary to determine whether the sentence of 2 years' immediate imprisonment for count 6 (where the maximum penalty is only 10 years' imprisonment) is also manifestly inadequate.

1. While it is also strictly unnecessary to resolve ground 2, in our view the total effective sentence of 5 years' immediate imprisonment failed to 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 N personally. N offended against two victims, the second of whom was subjected to sexual abuse on four separate occasions. When account is taken of the proper individual sentences for counts 5 and 8, and the need for a degree of accumulation between the offences, the total effective sentence is properly characterised as unreasonable or plainly unjust.

1. This court has a residual discretion to dismiss a State appeal even though a ground or grounds of appeal have been established. It is for the State to demonstrate that the residual discretion should not be invoked. In this case, N did not suggest that, if one or more of the grounds of appeal were established, this court should exercise the residual discretion to dismiss the State's appeal. There is nothing in the circumstances of this case which would warrant the exercise of the discretion. The individual sentences that were imposed for counts 5 and 8, and the total effective sentence of 5 years' immediate imprisonment, were very clearly inadequate. Appellate intervention is required to impose sentences which properly reflect the seriousness of the offences so as to ensure that proper standards of sentencing are observed for offences of the kind N committed.

1. This court has the material necessary to resentence N. Given that there was no complaint about the individual sentences for counts 1 - 4 and 7, we would not interfere with the individual sentences imposed by the trial judge for those offences. Having regard to all of the matters referred to above, to all of the circumstances of the case and all relevant sentencing principles and considerations, we would impose the following individual sentences:

Indecent dealing with a child over 13 / under 16 years, by putting his hand inside A's pants and touching her genital area.

Indecent dealing with a child over 13 / under 16 years, by touching Y's breasts.

Indecent dealing with a child over 13 / under 16 years, by kissing Y.

Indecent dealing with a child over 13 / under 16 years, by touching Y's breasts.

Aggravated sexual penetration without consent, by penetrating Y's vagina with his finger.

Attempted aggravated sexual penetration without consent, by attempting to penetrate Y's vagina with his penis.

Indecent dealing with a child over 13 / under 16 years, by touching Y's breasts and buttocks.

Aggravated sexual penetration without consent, by introducing his penis into Y's mouth.

1. In our view, the appropriate total effective sentence is 7 years 6 months' imprisonment. We would achieve that result by ordering that the sentences for counts 1 and 2 be served cumulatively upon the sentence for count 8 and upon each other. The balance of the sentences should be served concurrently with each other and with the sentence for count 8.
2. N should continue to be eligible for parole, and his new total effective sentence backdated to 2 March 2019 to take account of time spent in custody.

1. For the above reasons, we would make the following orders in the appeals.

(1) Leave to appeal is granted on the sole ground of appeal.

(2) The sentences imposed by the District Court of Western Australia on indictment 2343 of 2018 are set aside and the following sentences of immediate imprisonment are substituted:

(3) The sentences for counts 1 and 2 are to be served cumulatively upon each other and cumulatively upon the sentence for count 8.

(4) The sentences for counts 3 - 7 (inclusive) are to be served concurrently with each other and concurrently with the sentence for count 8.

(5) The above sentence is taken to have taken effect on 2 March 2019.

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

Research Orderly to the Honourable Justice Mitchell

[18] Trial ts 92 - 96, see also re-examination at trial ts 116.

[40] Appellant's submissions, par 14; appeal ts 3.

[41] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [185]. See also RMD [50] - [52]; La Bianca v The State of Western Australia [2019] WASCA 105 [24] - [26], [144].

[42] The State of Western Australia v Jackson [2019] WASCA 118 [20] - [23].

[43] El-Haddad v R [2015] NSWCCA 10; (2015) 88 NSWLR 93 [70].

[44] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338.

[45] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56.

[46] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.

[53] McPhillamy [11]; Bauer [61]; Jackson [48].

[54] Wark v The State of Western Australia [2020] WASCA 19 [312].

[71] Indich v The State of Western Australia [2019] WASCA 13 [42].

[74] The State of Western Australia v BKJ [2018] WASCA 136 [82] ‑ [87].

[75] Indich [42], Mitchell JA and Allanson J agreeing with this statement at [66].

[76] McNally v The State of Western Australia [2019] WASCA 93 [53] - [54], adopted in The State of Western Australia v Jacoby [2020] WASCA 150 [52].

[77] Being McNally, Lakay v The State of Western Australia [2019] WASCA 46; Costa v The State of Western Australia [2019] WASCA 3; Alalyani v The State of Western Australia [2018] WASCA 44 and SJN v The State of Western Australia [2016] WASCA 215.

[78] Thomas v The State of Western Australia [2019] WASCA 4; see also KNY v The State of Western Australia [2019] WASCA 89.

[79] Greenland v The State of Western Australia [2017] WASCA 83.

[80] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.