The facts of the offending are not in dispute.
The complainant, JA, was born on 5 September 2005. In 2011, JA's mother, SA, commenced a relationship with the appellant. At the time, SA had two children from a previous relationship, namely JA and a younger male child.[1]
SA and the appellant married on 11 August 2011. They had two children together. They built a house, and the family moved into that property in March 2014. All of the offending occurred in that house.[2]
The appellant pleaded guilty to counts 1, 2, 5, 7, 9, 15, 16, 19, 20 and 21. The remaining counts on the indictment were discontinued.[3]
Count 1 occurred on a date unknown between 4 September 2017 and 5 September 2018, when JA was about 12 years old. The appellant entered JA's bedroom and laid on her bed with her. JA's youngest brother was playing on the floor of the bedroom. The appellant started talking about the home schooling that JA had done that day. JA was lying on the side of the bed closest to the wall. She and the appellant were facing each other, and were very close. The appellant placed his hands beneath JA's shirt and squeezed her breast. The appellant asked JA if it was okay, and she replied, 'No'. He again asked if it was okay. JA then told the appellant that she needed to get a drink, and got up and left the room. Later that day, the appellant approached JA and asked her to accompany him outside for a talk. JA sat on the bench outside their house, whilst her brothers were riding their bicycles. The appellant said to JA, 'Do not tell mum or anyone '[because] it will break our family apart'. Count 1 is an offence of indecently dealing with JA a child who he then knew to be his de facto child, by touching her breast, and that JA was a child under the age of 16 years.[4]
Count 2 occurred on either the same occasion as count 1 or another occasion at around the same time, and again when JA was about 12 years old. JA and the appellant were lying in her brother's bed, facing each other. They were lying close as it was a single bed, being the lower bed of a bunk bed. The appellant started touching JA and then asked her to suck his penis. JA did not really understand the request. The appellant then pulled his pants down, and moved JA's head towards his penis. As the appellant kept pushing JA's head onto his penis, she opened her mouth. The appellant then moved JA's head up and down, while she had his penis in her mouth. In addition to this and the other charged occasion of enforced fellatio, the appellant requested JA to suck his penis on several other occasions over the years. Count 2 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by introducing his penis into her mouth, and that JA was a child under the age of 16 years.[5]
Count 5 occurred on another occasion within the same time period, and again when JA was about 12 years old. At the time, JA did not have an understanding of sexual intercourse. JA and the appellant were lying underneath a blanket in her bedroom. The appellant told JA about sex, and that he wanted to try it with her. He took her pants and underwear off. He then lay on top of JA and tried to put his penis inside her vagina. He used his hands; however, JA could only feel his penis on the outside of her vagina. JA's brother came into the bedroom at some point, and the appellant got off JA. JA put her pants and underwear back on, and the appellant then told JA and her brother stories, using his iPad. Count 5 is an offence of attempting to sexually penetrate JA, a child who he then knew to be his de facto child, by attempting to penetrate her vagina with his penis, and that JA was a child under the age of 16 years.[6]
Count 7 occurred on a date unknown between 4 September 2018 and 5 September 2019, when JA was about 13 years old. JA and the appellant were in the appellant's bedroom. JA's brothers were initially in the room too, and they were all talking. After JA's brothers left the bedroom she and the appellant were lying in the bed facing each other. The appellant started touching JA's vagina beneath her pants and underwear. He first rubbed JA's vagina, then put his fingers inside her vagina. He continued to rub around the inside of JA's vagina. He then pulled JA's pants down, lifted her shirt up, and started kissing her body. As he kissed her body, he made his way downwards, kissing and licking her stomach. Once the appellant got to JA's vagina, he kissed it and then started licking it. He licked the inside of her vagina. The appellant performed cunnilingus on JA on more than one occasion but she could only recall this one, being the first time it occurred. Count 7 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by engaging in cunnilingus, and that JA was a child under the age of 16 years.[7]
Count 9 occurred on another occasion between the same dates, and again when JA was 13 years old. The appellant went into JA's bedroom while she was doing her homework. The appellant called JA's brothers into the bedroom. The appellant lay down on the bed and chatted to JA and her brothers about various things, including school. At the time, JA's mother was in her own room as she had a sore back. After JA's brothers left the bedroom the appellant locked the door and laid on the bed with JA. She was on the side of the bed closest to the wall. He started touching her, including squeezing her breasts over her clothing. A little later, JA and the appellant were both standing up. The appellant told JA to bend over, as he wanted to have anal sex with her. JA could not recall the exact words used by the appellant. While standing behind JA, the appellant grabbed her by her hips and pushed her onto the bed, which was in front of her, so that she was in a bent position. He then pulled JA's pants and underwear down. He put his penis inside JA's anus and moved back and forth whilst holding her by her hips. This continued for 'quite a while'. When the appellant removed his penis, JA put her pants and underwear back on, as did he. JA cried as her anus felt 'really sore'. The appellant said something to the effect of 'don't cry'. He then left the bedroom. Count 9 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her anus with his penis, and that JA was a child under the age of 16 years.[8]
Counts 15 and 16 were part of a single incident that occurred on a date unknown between 6 March 2020 and 5 September 2020, when JA was aged 14. This incident occurred sometime after the family had returned from a family trip overseas in the first half of 2020. JA's mother and brothers were not in the house at the time, as JA's mother had taken one of her brothers to a hospital to get a COVID‑19 test. JA was in bed when the appellant came to her bedroom and asked her to go to his bedroom. She did so and then laid on the bed in the appellant's bedroom. The appellant started kissing and touching her. He touched her breasts beneath her clothing and squeezed her breasts. He commented that JA had lost weight in her breast area. She recalled that she was trying to lose weight at the time. The appellant then touched JA's vagina beneath her clothes. He inserted his fingers into her vagina and moved his fingers around. At the same time, the appellant was kissing JA on her neck. The appellant took his clothes off, and JA's clothes were also removed. The appellant then rolled JA over, so that she was lying on her stomach on the bed. The appellant knelt behind JA and inserted his penis into her anus. He moved back and forth, and then said something to the effect of 'you should sit down on my lap because it's less painful that way'. JA did as she was told and sat on the appellant's lap, whilst he was lying on the bed. The appellant rubbed his penis to make it erect, and then made JA sit down on his erect penis such that he penetrated her vagina with his penis. The appellant then lay on top of JA and continued to have penile/vaginal penetrative sex with her. He removed his penis before he ejaculated. He did not use a condom. JA's vagina and anus hurt after this incident. This incident was the first time that the appellant had penile/vaginal sexual intercourse with JA, and the last time that they had anal sexual intercourse. Count 15 is an offence of sexual penetration of JA, a child who the appellant then knew to be his de facto child, by penetrating her anus with his penis, and that JA was a child under the age of 16 years. Count 16 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[9]
Counts 19 and 20 occurred on the same occasion on a date unknown between 30 November 2020 and 14 January 2021, when JA was aged 15. On this occasion, JA's mother had gone to work, and her brothers were playing video games. It was daytime, and JA and the appellant were in his bedroom on the bed. The appellant said to JA, 'Can you suck my dick?'. The appellant was lying on his back and pulled his pants down. JA then kissed the appellant's penis and performed fellatio. This was one of numerous occasions when the appellant forced JA to perform fellatio on him. The appellant had a condom on his penis during this incident. He then got on top of JA and had penile/vaginal sex with her. Afterwards, the appellant threw the used condom in a bin near the toilet, and JA had a shower. She and the appellant then sat on the bed and watched television. Count 19 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by introducing his penis into her mouth, and that JA was a child under the age of 16 years. Count 20 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[10]
Count 21 occurred on 12 January 2021, when JA was aged 15. The appellant sent JA a message saying, 'Come here', meaning that JA was to go to his bedroom. JA went to the appellant's bedroom and stood against a wall while the appellant took all her clothes off. The appellant also took his own clothes off. JA was having her period at this time. The appellant laid a towel out on the bed and JA lay on her back on the towel. JA was wearing a menstrual pad inside her underwear. The appellant took the pad off when he removed her underwear. JA was lying on the bed with her legs apart. The appellant then inserted his penis into JA's vagina and had sexual intercourse with her. He did so until he ejaculated. He was using a condom on this occasion. JA then had a shower, whilst the appellant lay on the bed watching television. The appellant threw the used condom in a bin in the bathroom. Count 20 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[11]
All of the counts were representative of an ongoing course of similar sexual conduct perpetrated by the appellant against JA.[12]
Soon after the last incident, JA revealed to her boyfriend what had occurred, and a report was made to police. The appellant was arrested by police on 14 January 2021, and participated in an interview. During that interview, the appellant denied ever having been naked in a bed with any of the children, including JA. He denied being sexually attracted to JA, and asserted that he had never thought about her in that way as he considered her to be his daughter. He denied the sexual offending. He did admit to having sent a message in which he asked JA to come to his bedroom but said this was because he wanted her to make him a sandwich.[13]
After being released on bail, the appellant telephoned SA and made threats that he would commit suicide. SA became distressed and handed the telephone to her mother. The appellant then said that he wanted to see SA and his sons and repeated the threat to commit suicide. During the conversation, SA's mother said, 'You have hurt and destroyed [JA]'. The appellant responded, 'I know'.[14]
The appellant did make an attempt to commit suicide. He was then remanded in custody from 27 January 2021. He spent two periods in custody, between 14 and 19 January 2021, and from 27 January 2021 until the time of sentencing on 16 May 2023. The relevant backdating date was 21 January 2021.[15]

NQB -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 93 | Case summary | Zoe

WAWASCA

NQB -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 93 (31 July 2024)

[2024] WASCA 93

Court of Appeal (WA)|2024-07-31|Before: Mazza JA

View original source

General information, not legal advice.

At a glance

Source facts

Court

Court of Appeal (WA)

Decision date

2024-07-31

Before

Mazza JA

Source

Original judgment source is linked above.

Judgment (87 paragraphs)

[1]

Over a period of three years, the appellant committed a series of sexual offences against his stepdaughter. The offending commenced when the complainant was 12 years old, and ended when she was 15 years old. The appellant entered pleas of guilty to 10 counts, and a further 12 counts were discontinued. However, the 10 counts were representative of a continuous course of sexual abuse. He was sentenced to a total effective term of 14 years' imprisonment.
The appellant seeks leave to appeal against his sentence on three grounds. First, the appellant asserts that the sentencing judge erred by failing to conduct a trial of issues as to whether the appellant was suffering from depression at the time of the offending. Secondly, the appellant asserts that the judge's characterisation of the offending as being 'right up the top' of the scale of seriousness was incorrect. Thirdly, the appellant contends that the judge erred by imposing a total effective sentence that was disproportionate to the overall criminality. At the hearing of the appeal, counsel for the appellant accepted that ground 3 was the gravamen of the appeal.
For the reasons that follow, grounds 1 and 2 have no reasonable prospects of success and we would refuse leave in respect of them. As regards ground 3, the total effective sentence imposed was not consistent with sentences imposed in comparable cases. As serious as this offending was, it remained necessary to impose a sentence that properly reflected the relative seriousness of this case as compared to others. Considered in that light, the total effective sentence was unreasonable or plainly unjust. We would grant leave to appeal in respect of ground 3, allow the appeal and resentence the appellant.

[2]

The facts of the offending are not in dispute.
The complainant, JA, was born on 5 September 2005. In 2011, JA's mother, SA, commenced a relationship with the appellant. At the time, SA had two children from a previous relationship, namely JA and a younger male child.[1]
SA and the appellant married on 11 August 2011. They had two children together. They built a house, and the family moved into that property in March 2014. All of the offending occurred in that house.[2]
The appellant pleaded guilty to counts 1, 2, 5, 7, 9, 15, 16, 19, 20 and 21. The remaining counts on the indictment were discontinued.[3]
Count 1 occurred on a date unknown between 4 September 2017 and 5 September 2018, when JA was about 12 years old. The appellant entered JA's bedroom and laid on her bed with her. JA's youngest brother was playing on the floor of the bedroom. The appellant started talking about the home schooling that JA had done that day. JA was lying on the side of the bed closest to the wall. She and the appellant were facing each other, and were very close. The appellant placed his hands beneath JA's shirt and squeezed her breast. The appellant asked JA if it was okay, and she replied, 'No'. He again asked if it was okay. JA then told the appellant that she needed to get a drink, and got up and left the room. Later that day, the appellant approached JA and asked her to accompany him outside for a talk. JA sat on the bench outside their house, whilst her brothers were riding their bicycles. The appellant said to JA, 'Do not tell mum or anyone '[because] it will break our family apart'. Count 1 is an offence of indecently dealing with JA a child who he then knew to be his de facto child, by touching her breast, and that JA was a child under the age of 16 years.[4]
Count 2 occurred on either the same occasion as count 1 or another occasion at around the same time, and again when JA was about 12 years old. JA and the appellant were lying in her brother's bed, facing each other. They were lying close as it was a single bed, being the lower bed of a bunk bed. The appellant started touching JA and then asked her to suck his penis. JA did not really understand the request. The appellant then pulled his pants down, and moved JA's head towards his penis. As the appellant kept pushing JA's head onto his penis, she opened her mouth. The appellant then moved JA's head up and down, while she had his penis in her mouth. In addition to this and the other charged occasion of enforced fellatio, the appellant requested JA to suck his penis on several other occasions over the years. Count 2 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by introducing his penis into her mouth, and that JA was a child under the age of 16 years.[5]
Count 5 occurred on another occasion within the same time period, and again when JA was about 12 years old. At the time, JA did not have an understanding of sexual intercourse. JA and the appellant were lying underneath a blanket in her bedroom. The appellant told JA about sex, and that he wanted to try it with her. He took her pants and underwear off. He then lay on top of JA and tried to put his penis inside her vagina. He used his hands; however, JA could only feel his penis on the outside of her vagina. JA's brother came into the bedroom at some point, and the appellant got off JA. JA put her pants and underwear back on, and the appellant then told JA and her brother stories, using his iPad. Count 5 is an offence of attempting to sexually penetrate JA, a child who he then knew to be his de facto child, by attempting to penetrate her vagina with his penis, and that JA was a child under the age of 16 years.[6]
Count 7 occurred on a date unknown between 4 September 2018 and 5 September 2019, when JA was about 13 years old. JA and the appellant were in the appellant's bedroom. JA's brothers were initially in the room too, and they were all talking. After JA's brothers left the bedroom she and the appellant were lying in the bed facing each other. The appellant started touching JA's vagina beneath her pants and underwear. He first rubbed JA's vagina, then put his fingers inside her vagina. He continued to rub around the inside of JA's vagina. He then pulled JA's pants down, lifted her shirt up, and started kissing her body. As he kissed her body, he made his way downwards, kissing and licking her stomach. Once the appellant got to JA's vagina, he kissed it and then started licking it. He licked the inside of her vagina. The appellant performed cunnilingus on JA on more than one occasion but she could only recall this one, being the first time it occurred. Count 7 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by engaging in cunnilingus, and that JA was a child under the age of 16 years.[7]
Count 9 occurred on another occasion between the same dates, and again when JA was 13 years old. The appellant went into JA's bedroom while she was doing her homework. The appellant called JA's brothers into the bedroom. The appellant lay down on the bed and chatted to JA and her brothers about various things, including school. At the time, JA's mother was in her own room as she had a sore back. After JA's brothers left the bedroom the appellant locked the door and laid on the bed with JA. She was on the side of the bed closest to the wall. He started touching her, including squeezing her breasts over her clothing. A little later, JA and the appellant were both standing up. The appellant told JA to bend over, as he wanted to have anal sex with her. JA could not recall the exact words used by the appellant. While standing behind JA, the appellant grabbed her by her hips and pushed her onto the bed, which was in front of her, so that she was in a bent position. He then pulled JA's pants and underwear down. He put his penis inside JA's anus and moved back and forth whilst holding her by her hips. This continued for 'quite a while'. When the appellant removed his penis, JA put her pants and underwear back on, as did he. JA cried as her anus felt 'really sore'. The appellant said something to the effect of 'don't cry'. He then left the bedroom. Count 9 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her anus with his penis, and that JA was a child under the age of 16 years.[8]
Counts 15 and 16 were part of a single incident that occurred on a date unknown between 6 March 2020 and 5 September 2020, when JA was aged 14. This incident occurred sometime after the family had returned from a family trip overseas in the first half of 2020. JA's mother and brothers were not in the house at the time, as JA's mother had taken one of her brothers to a hospital to get a COVID‑19 test. JA was in bed when the appellant came to her bedroom and asked her to go to his bedroom. She did so and then laid on the bed in the appellant's bedroom. The appellant started kissing and touching her. He touched her breasts beneath her clothing and squeezed her breasts. He commented that JA had lost weight in her breast area. She recalled that she was trying to lose weight at the time. The appellant then touched JA's vagina beneath her clothes. He inserted his fingers into her vagina and moved his fingers around. At the same time, the appellant was kissing JA on her neck. The appellant took his clothes off, and JA's clothes were also removed. The appellant then rolled JA over, so that she was lying on her stomach on the bed. The appellant knelt behind JA and inserted his penis into her anus. He moved back and forth, and then said something to the effect of 'you should sit down on my lap because it's less painful that way'. JA did as she was told and sat on the appellant's lap, whilst he was lying on the bed. The appellant rubbed his penis to make it erect, and then made JA sit down on his erect penis such that he penetrated her vagina with his penis. The appellant then lay on top of JA and continued to have penile/vaginal penetrative sex with her. He removed his penis before he ejaculated. He did not use a condom. JA's vagina and anus hurt after this incident. This incident was the first time that the appellant had penile/vaginal sexual intercourse with JA, and the last time that they had anal sexual intercourse. Count 15 is an offence of sexual penetration of JA, a child who the appellant then knew to be his de facto child, by penetrating her anus with his penis, and that JA was a child under the age of 16 years. Count 16 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[9]
Counts 19 and 20 occurred on the same occasion on a date unknown between 30 November 2020 and 14 January 2021, when JA was aged 15. On this occasion, JA's mother had gone to work, and her brothers were playing video games. It was daytime, and JA and the appellant were in his bedroom on the bed. The appellant said to JA, 'Can you suck my dick?'. The appellant was lying on his back and pulled his pants down. JA then kissed the appellant's penis and performed fellatio. This was one of numerous occasions when the appellant forced JA to perform fellatio on him. The appellant had a condom on his penis during this incident. He then got on top of JA and had penile/vaginal sex with her. Afterwards, the appellant threw the used condom in a bin near the toilet, and JA had a shower. She and the appellant then sat on the bed and watched television. Count 19 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by introducing his penis into her mouth, and that JA was a child under the age of 16 years. Count 20 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[10]
Count 21 occurred on 12 January 2021, when JA was aged 15. The appellant sent JA a message saying, 'Come here', meaning that JA was to go to his bedroom. JA went to the appellant's bedroom and stood against a wall while the appellant took all her clothes off. The appellant also took his own clothes off. JA was having her period at this time. The appellant laid a towel out on the bed and JA lay on her back on the towel. JA was wearing a menstrual pad inside her underwear. The appellant took the pad off when he removed her underwear. JA was lying on the bed with her legs apart. The appellant then inserted his penis into JA's vagina and had sexual intercourse with her. He did so until he ejaculated. He was using a condom on this occasion. JA then had a shower, whilst the appellant lay on the bed watching television. The appellant threw the used condom in a bin in the bathroom. Count 20 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[11]
All of the counts were representative of an ongoing course of similar sexual conduct perpetrated by the appellant against JA.[12]
Soon after the last incident, JA revealed to her boyfriend what had occurred, and a report was made to police. The appellant was arrested by police on 14 January 2021, and participated in an interview. During that interview, the appellant denied ever having been naked in a bed with any of the children, including JA. He denied being sexually attracted to JA, and asserted that he had never thought about her in that way as he considered her to be his daughter. He denied the sexual offending. He did admit to having sent a message in which he asked JA to come to his bedroom but said this was because he wanted her to make him a sandwich.[13]
After being released on bail, the appellant telephoned SA and made threats that he would commit suicide. SA became distressed and handed the telephone to her mother. The appellant then said that he wanted to see SA and his sons and repeated the threat to commit suicide. During the conversation, SA's mother said, 'You have hurt and destroyed [JA]'. The appellant responded, 'I know'.[14]
The appellant did make an attempt to commit suicide. He was then remanded in custody from 27 January 2021. He spent two periods in custody, between 14 and 19 January 2021, and from 27 January 2021 until the time of sentencing on 16 May 2023. The relevant backdating date was 21 January 2021.[15]

[5]

Victim impact statements from JA and her mother, SA, were provided to the sentencing judge.
In her victim impact statement, JA said that she resorted to emotional eating after the offending and gained 20 kg. Her mood has been extremely low, and she has been diagnosed with depression and anxiety. She is unable to trust anyone and lives in fear all the time. This has ruined relationships with family and friends. She used to be very good at school, but she has since dropped out because she was struggling to keep up as she had to deal with emotional stress and trauma. Her depression and anxiety cause her not to want to go out, especially to school. She self‑harmed frequently for months after the appellant went into custody. She had suicidal thoughts almost every day from the time the offending started until sometime after the appellant went into custody. The appellant made her feel like she was not good enough and that the offending was her fault.
JA was prescribed antidepressants in 2021, and engaged in counselling during that year. She believes that she will need more counselling in the future when she is ready to deal with the trauma. The court proceedings caused her stress and affected her mental health. Her self‑esteem is very low because of the weight she gained as a result of emotional eating caused by the offending. She has nightmares from the offences and her sleep has been generally affected. She feels that she cannot commit to anything of a sexual nature because to do so would be triggering.
SA's victim impact statement confirms the impact on JA. She also states that she has had to learn, overnight, to become self‑sufficient and to manage a mortgage and bills by herself. She refers to watching her children hurting and crying because everything happened so quickly and they do not understand why. This has required her to give the care and reassurance to her children that they need. She states that the appellant has put the whole family through a great deal of trauma. She states that they have had to move to get out of the house and have a fresh start in a new location, with a better chance of healing. She continues to feel anxiety and a lack of safety regarding the appellant.

[6]

The appellant was born on 12 February 1988, in India. He was aged between 29 and 33 years at the time of the offending. He was aged 34 years at the time of sentencing.[19]
The appellant is the younger of two children born to his parents' union. His older brother and parents remain in India. The appellant undertook his schooling in India. He reported being good at school, and he was encouraged by his parents to pursue higher education. His family were poor farmers, but they were hard workers. The appellant said that he knew that his parents loved him, but they were not overly demonstrative.[20]
The appellant claimed that when he was around 10 years of age he was sexually assaulted by friends of his older brother. Others in his village seemed to know of the abuse and mocked him, leading to shame and guilt. He had few friends and tended to keep to himself.[21]
The appellant went to college in India and obtained an engineering diploma. He moved to Western Australia when he was aged 20 to undertake a Bachelor of Engineering degree at Edith Cowan University. He stopped studying full‑time in 2010, but returned to study in 2015 and completed his degree. In the intervening years, the appellant undertook managerial roles in a number of companies. He also did nightwork as a shelf‑stacker at supermarkets. He claimed he found it very hard to find work in the field in which he had qualifications.[22]
The appellant secured employment as a manager in a supermarket chain in 2017. He progressed quickly to become a store manager in 2018. This enabled the appellant to pay off debts, have yearly trips back to India to visit family, and buy a home. However, the appellant described the work as stressful because he was on‑call 24 hours a day. In 2018, he was assaulted at work and that he returned to work two days after the incident, not wanting to appear weak. He then began to hate work, often returning home and drinking excessively.[23]
The appellant met SA online in 2011, and she quickly fell pregnant. She had two children by a prior relationship, one of them being JA. As a result of entering into this relationship, the appellant needed to gain employment to support the family. This resulted in him leaving university. The appellant stated that he loved SA's children and was comfortable being an instant father. The appellant and SA eventually had two children together.[24]
The appellant had converted to Christianity whilst in prison. A character reference from a prison chaplain stated that the appellant had taken his new‑found Christian faith very seriously and that it was now the main anchor and guide of his life. The chaplain stated that:[25]

[10]

The sentencing judge was provided with a pre‑sentence report, a psychological report dated 11 October 2022, and an updated psychological reported dated 13 January 2023.
In the pre‑sentence report it was stated that, whilst the appellant acknowledged his behaviour and accepted some culpability, he appeared to justify his offending based on his own mental health concerns and perceived injustices. The appellant acknowledged that his offending behaviour would have a lifelong impact on JA, and appeared genuine in his display of victim empathy. He denied any sexual interest in children, and claimed that his offending behaviour was driven by loneliness and feelings of betrayal in relation to his wife (which are referred to in more detail later).[28]
In the first psychological report, it is recorded that the appellant reported increasing paranoia following the workplace assault in 2018. He said that he did not feel safe either at home or work. He described feeling delusional, paranoid, and disconnected from the world. He initially sought help from psychological services provided at his university. He was then referred to a psychiatrist in 2019. He said that he was diagnosed with post‑traumatic stress disorder and severe depression (although this was not independently confirmed). He said that he engaged in psychological counselling around this time. He claimed that he was prescribed an anti‑psychotic medication, but this only made things worse.[29]
Whilst the appellant denied illicit substance use, he did refer to abusing medication that was prescribed to him following his assault. He said that he took more medication than was prescribed and mixed it with alcohol. He said that he would often buy alcohol after finishing work and consume a bottle whilst playing with the children.[30]
The appellant claimed that he discovered his wife was being unfaithful in 2016 or 2017, but was unable to discuss this situation and remained in the marriage. He attributed his offending behaviour to past unaddressed trauma as a child, alcohol misuse, and feelings of betrayal as a result of his wife being unfaithful. He said that at the time the offences commenced he was depressed and started to randomly watch pornography, and that this increased following his assault at work. He said that he took comfort in his stepdaughter's company and viewed his behaviour as a sexual escape. He acknowledged that whilst JA was compliant, she was young and confused and did not know what to do. He reiterated that what occurred was no one's fault but his own and admitted that he was too arrogant to address the problems in his life.[31]
After the appellant was arrested and released on bail, he consumed weed killer in a suicide attempt. He awoke in hospital after being in a coma for 10 days and was then transferred to prison. He stated that he was on dialysis for two weeks due to kidney damage and was initially prescribed a large array of medications. He has since fully recovered and has ceased all medications.[32]
In the first psychological report, it is stated that the appellant expressed genuine emotions regarding the loss of contact with his wife and children. He understood his role in this outcome, appearing to understand that it was completely his responsibility, and he did not blame or attribute any responsibility to others. He remains hopeful that his sons will contact him again in the future, although he does not expect forgiveness from anyone. He added that he hoped his wife and children were coping, especially financially. He stated that he was more than willing to undertake any programmes or counselling deemed appropriate.[33]
An assessment of the risk of reoffending was undertaken by the psychologist. The appellant was assessed as being of average risk, that is, he is expected to have roughly the same risk of recidivism as the average individual convicted of a sexually motivated offence. He was assessed as displaying some degree of insight, and of being a good candidate for specialised group‑based intervention to address his sexual offending.[34]
In the period that the appellant was remanded in custody prior to sentencing, he had taken up educational opportunities and engaged in what he described as a 'conversion'. In the psychological report, it is stated that the appellant credited the large degree of change in his mindset to his reading of the Bible. He said that one day he 'woke up' and felt at peace, incredibly happy, joyful, and recovered from the after‑effects of his suicide attempt.[35]

[30]

By ground 1, the appellant asserts that the sentencing judge erred by failing to hold a trial of issues before refusing to accept the defence assertion that he was suffering from depression at the time of the offending, and, as a consequence, by failing to take this into account as a mitigating feature. In essence, the appellant claims that he was denied an opportunity to prove a mitigating factor.
A factor that reduces the culpability of an offender is a mitigating factor. Mental illness falling short of insanity can, in some circumstances, reduce the culpability of an offender and thus be a mitigating factor. The onus of proving a mitigating factor is on the offender. If the factor is contested it must be established on the balance of probabilities. If a sentencing judge is not prepared to accept a mitigating factor advanced on behalf of an offender, the proper course is to put the offender on notice and to allow an opportunity to prove the factor by calling evidence at a trial of issues.[56]
In this case, there was some reference to depression in the psychological reports, but there was no independent confirmation that the appellant had ever been formally diagnosed with that condition. The appellant claimed that he suffered depression after forming a belief that his wife was having an affair, and that this was subsequently exacerbated as a result of a workplace assault. However, this was a mere unsubstantiated assertion by the appellant.
The sentencing judge doubted that there was any meaningful causal connection between the appellant's claimed mental health struggles and his offending. This was made apparent during the course of submissions when her Honour said, in regard to the appellant's claims of depression, 'I cannot for the life of me see the connection between it all'.[57] Her Honour expressed the view that it was hard to reconcile the appellant's account of the reasons for the offending with the description of the appellant by his wife as abusive and controlling. The necessary implication was that her Honour was not prepared to accept that the appellant was suffering any significant mental illness at the time of the offending, nor that any mental illness had any relevant causative effect.
Defence counsel was on notice that the sentencing judge was not prepared to accept the appellant's claims that depression was a causative factor. Defence counsel did not seek to provide any substantiation of the appellant's claims, nor did he seek a trial of issues. The onus was on the appellant to establish this factor on the balance of probabilities. That course was not taken. There may well have been sound forensic reasons for not pursuing the matter.
In any event, it must be doubted that even if the appellant did suffer depression at the time of the offending, any causal connection between that condition and the offending could have been established. As was noted in The State of Western Australia v Malone:[58]

[36]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

[45]

The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. A claim that a total effective sentence infringes the totality principle asserts an implied error. For such a claim to succeed, the appellant must establish that the aggregate sentence is unreasonable or plainly unjust.
The totality of the appellant's offending was very serious and deserving of a substantial term of imprisonment. The fact that the offending was representative in nature does not mean that the appellant fell to be punished for matters for which he was not convicted, but it does place the offences into a proper context. That is, the context is relevant in assessing the seriousness of the offences of which the appellant was convicted. That context was one of continuing and persistent sexual abuse of a serious nature against the appellant's stepdaughter over a three‑year period.
The issue raised by the appellant is whether the total effective sentence was disproportionate to the overall criminality such as to breach the first limb of the totality principle. This requires consideration of the maximum statutory penalties for the offences, the seriousness of the offending as a whole, the personal circumstances of the appellant, and any assistance that can be derived from comparable cases.
The maximum penalties for the individual offences are as follows:
1. Sexual penetration of a child who the offender knows is his de facto child, where the child is under the age of 16 years, contrary to s 329(2) and s 329(9) of the Criminal Code (Code): 20 years' imprisonment (counts 2, 7, 9, 15, 16, 19, 20 and 21).
2. Indecent dealing with a child who the offender knows is his de facto child, where the child is under the age of 16 years, contrary to s 329(4) and s 329(10) of the Code: 10 years' imprisonment (count 1).
3. Attempted sexual penetration of a child who the offender knows is his de facto child, where the child is under the age of 16 years, contrary to s 329(2), s 329(9) and s 552 of the Code: 10 years' imprisonment (count 5).
Those penalties reflect the very serious nature of offences of indecent dealing and sexual penetration of a de facto child. It is relevant to note that where the child is not a lineal relative or de facto child, similar offences under s 321 of the Code attract lower maximum penalties (7 years and 14 years respectively), except where the child is under the care, supervision or authority of the offender (in which case the maximum penalties are the same).[74]
The offending involved a gross breach of the appellant's trusted role as a stepfather. He had been in that role since JA was 4 years old. However, it is important to note that that role was an element of the offence and thus not an additional aggravating factor. The role of the offender as a de facto parent was reflected in the high maximum penatly for this offence. Care must be exercised not to double count this factor.
The offending included multiple offences of sexual penetration or attempted sexual penetration. These included acts of digital penetration, penile penetration of the vagina, and penile penetration of the anus. The appellant persisted in this conduct even when JA expressed reluctance and pain. He persisted on one occasion when she had her period. He was aware that JA was sexually inexperienced, and this offending resulted in JA's loss of her virginity. He exposed JA to pornography and sought to normalise the conduct. The effects upon JA have been profound.
From the outset, the appellant sought to ensure that JA did not disclose the offending by telling her that if she did it would destroy the family. By this means the appellant sought to shift responsibility for his offending and the consequences of it to the complainant. The effectiveness of this ploy is apparent from the fact that the offending continued for over three years before JA felt able to disclose it.
The offending included the following aggravating factors:

[49]

As to the comparable cases referred to by the appellant, in LJH the offender pleaded guilty to 43 representative counts of sexual offending against his de facto daughter, of which 26 counts were sexual penetration offences. Some of the offences were of indecently recording the sexual conduct. The offending occurred over a 21‑month period and the complainant was aged between 14 and 15 at the time. One of the appeal grounds related to the discount for pleading guilty and another related to the total effective sentence. On appeal, a discount of 20% was allowed for the guilty pleas and the total effective setence of 13 years' imprisonment was reduced to 10 years' imprisonment.
In MHE the offender pleaded guilty to 87 offences involving sexual offending against his three de facto children. Those offences included 21 sexual penetration offences. The offending did not involve penile/vaginal penetration or penile/anal penetration. The offences occurred on 14 separate days over an approximately 12‑month period, all but three occurring in the last six months. The children were aged 15, 11 and 8; and all but one of the offences were committed against the two older children. The guilty pleas were entered at the first reasonable opportunity and a discount of 25% was allowed. On appeal the total effective sentence of 12 years 6 months' imprisonment was reduced to 10 years' imprisonment.
In RGT the offender pleaded guilty to 29 counts of sexual offending against three children, including a 2‑year‑old child. One of the children was a lineal relative and another was a de facto child of the offender. The offences included 16 sexual penetration offences and seven offences of indecently recording some of the acts. The offender entered guilty pleas, though some came at a late stage resulting in discounts of between 12.5% and 15%. The offender's personal circumstances were not favourable and his risk of reoffending was moderate to high. On appeal, the total effective sentence was reduced from 19 years' imprisonment to 16 years' imprisonment.
In BKJ the offender pleaded guilty to 61 counts, of which 58 were sexual offences against the offender's daughter. The offending continued over a 10‑year period, when the complainant was aged between 2 and 12 years old. The offences included 19 sexual penetration offences and 24 offences of indecently recording some of the acts. The offender entered his guilty pleas at the first resonable opportunity and a discount of 25% was allowed. On appeal the total effective sentence was increased from 14 years' imprisonment to 16 years' imprisonment.
In MHE Mitchell and Beech JJA referred to sentences imposed in many other cases, in particular:[76]

[50]

There are a number of cases where total effective sentences in the region of 12 to 13 years' imprisonment have been imposed, after pleas of not guilty, for sustained sexual offending that included penile/vaginal penetration. Such cases include:

(1) MAS v The State of Western Australia (12 years; 25 counts, including penile/vaginal penetration, penile/anal penetration, fellatio and cunnilingus, without consent in fact; the offending extended over seven years against the offender's de facto daughter, who was aged between 11 and 18 years; at times threats and violence were used; when she became pregnant the offender insisted she have an abortion).

(2) ARK v The State of Western Australia (12 years; nine counts, including five counts of penile/vaginal penetration; representative of a course of offending over about four years from when the complainant was about 11 years old; the offender was physically aggressive and used manipulation and intimidation to ensure the complainant's continued compliance with his demands).

(3) JJR (12 years; 10 counts, four of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 9 and 11 years and the other between 7 and 12 years; the offending extended over about seven years; the sentence of 12 years' imprisonment was described as 'undoubtedly severe').

(4) AIM (12 years; 13 counts, six of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 7 and 8 years, the other between 4 and 7 years; the offences were representative and extended for about three years against one complainant and about 20 months against the other).

(5) CJF v The State of Western Australia (12 years; six counts, four of which were sexual penetration, including penile/vaginal penetration and digital penetration; the offences were representative of ongoing sexual abuse occurring over an extended period commencing when the complainant was 9 years old; the offender used violence and threats).

(6) KSN v The State of Western Australia (12 years; 15 counts, 14 of which were sexual penetrations, including penile/vaginal penetration, penile/anal penetration, fellatio, cunnilingus and digital penetration; the offences were representative of offending over about four or five years against the complainant when she was aged between 11 or 12 and 16 years; the offender used threats, forceful behaviour, alcohol and cannabis to facilitate the sexual activity).

(7) SG v The State of Western Australia (12 years; 13 counts, 11 of which were sexual penetrations, including fellatio, digital penetration and penile/vaginal penetration, one of which resulted in pregnancy; the offending was representative of a course of conduct over four to five years while the complainant was aged between 11 and 16 years; the offender used bribery and promises together with intimidation and physical coercion to obtain sexual favours). (footnotes omitted)

[51]

In addition to the cases referred to we have also had regard to the sentences imposed in LYN v The State of Western Australia;[77] GHK v The State of Western Australia;[78] OTR [No 2]; LTT v The State of Western Australia;[79] NE v The State of Western Australia;[80] The State of Western Australia v AHD;[81] WRT v The State of Western Australia;[82] and AAE v The State of Western Australia.[83]
From this review it is apparent that the total effective sentence imposed in the present case is not consistent with total effective sentences imposed in comparable cases. Whilst all comparisons have limitations, the offending in this case was broadly comparable to that in LJH, MHE and the cases included in MHE as referred to in these reasons at [101]. It should also be noted that the cases referred to in MHE involved sentences imposed after trial and thus the offenders in those cases can be contrasted with the appellant, who had the benefit of having pleaded guilty.
The sentencing judge considered that the present case could be distinguished from other cases on the basis of the number and nature of the aggravating factors. Regrettably, this was not a unique case. The aggravating factors here were significant, but they were not materially more serious than the aggravating factors in many of the other cases referred to. Indeed, in some of those cases, there were serious aggravating factors not present in this case, such as the use of physical violence, threats or intimidation, a high degree of depravity or the making of recordings of the abuse.
The total sentence imposed here is higher by a significant margin than many of the comparable cases referred to. Cases attracting a total sentence comparable to that imposed here involve offending that is more serious because of factors such as the number of offences, number of victims or the length of time over which the offending continued. The inconsistency between the sentence imposed here and those imposed in comparable cases is an indicator of implied error. Whilst there are always limitations in the use of comparable cases, the importance of consistency in sentencing cannot be understated.
Having regard to the seriousness of the offending taken as a whole, the aggravating factors in this case, the personal circumstances of the appellant, including his pleas of guilty, and the guidance afforded by comparable cases, we are of the view that the total effective sentence of 14 years' imprisonment breached the first limb of the totality principle. The total effective sentence was not proportionate to the overall offending. The total effective sentence was unreasonable or plainly unjust.