RHW -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 83 (16 July 2024)

(a) count 1: 4 months' immediate imprisonment; and
>
> (b) count 2: 20 months' immediate imprisonment.

1. The new individual sentence for count 1 is to be served cumulatively upon the new individual sentence for count 2. 2. The new total effective sentence is therefore 2 years' immediate imprisonment. 3. The new total effective sentence is backdated to 9 September 2023. 4. The appellant is eligible for parole.
2. At the making of the orders, the court said that it would publish its reasons for decision at a later date. These are our reasons for making the orders.

1. The facts of the offending were not disputed before the sentencing judge, nor were they disputed in this court. The prosecutor read an amended statement of material facts aloud to the sentencing judge, which was not challenged by defence counsel. Those facts were adopted in full by the sentencing judge, and are summarised below.
2. At the time of the offending, the appellant was 38 years old. A, his biological daughter, was 14 years old. On an evening in the winter of 2021, the appellant and A were at home watching a movie, together with the appellant's younger son. The appellant was lying on a couch and A was lying, on the same couch, in front of him. The appellant fell asleep and was then awoken by the movement of A's bottom next to his groin area. The movement caused the appellant to become sexually aroused. He did not immediately realise that it was his daughter who had rubbed against him, because he had been asleep for a short time immediately prior to the commission of the offence. However, approximately 20 to 30 seconds into the commission of the first offence, he realised the identity of the person he was penetrating.
3. As to count 1, the appellant reached over A and put his hand inside her underwear. Using his finger, he penetrated A's vagina by rubbing her clitoris for one or two minutes.
4. As to count 2, immediately after committing count 1, the appellant inserted his finger into A's vagina for a further one or two minutes, before removing his hand.

The appellant's voluntary attendance upon the police and his disclosure of the offending

1. A did not complain about what had occurred. However, as the appellant later explained to police, after the offending he noticed significant adverse changes in A's behaviour, which he attributed to his conduct.
2. On 10 March 2023, completely unbidden, the appellant presented himself at a suburban police station and informed officers of his offending. Later that day, the appellant voluntarily participated in a video‑recorded interview (VRI) with two detectives, during which he confessed to the offending.[3] To be clear, prior to this, no complaint or report had been made to anyone and the appellant was not the subject of any police inquiry or investigation; nor was any police inquiry or investigation foreshadowed, threatened, or anticipated. It appears from the VRI that on the day he went to the police station, the appellant had told A what he intended to do. She requested that he not say anything. Nevertheless, he went ahead.[4]
3. As a result of the appellant's disclosure, he was charged with the two offences the subject of this appeal. He pleaded guilty to them in the Magistrates Court at the first reasonable opportunity, on 26 April 2023.
4. Police officers attempted to interview A. She declined to be interviewed or to cooperate with the police investigation. She also declined to provide a victim impact statement, although, as will be seen, she provided a letter to the sentencing judge which was tendered on the appellant's behalf at the sentencing hearing.
5. In the absence of the appellant's voluntary disclosure, the offences were unlikely to have ever come to light. There is no suggestion that the appellant groomed A, or committed any further offence against her before, or after, the present offences. There is no evidence to suggest that the appellant has, or previously had, a sexual interest in his daughter nor in children more generally.

1. As mentioned, the appellant was 37 years old at the time of the offending. He was 39 years old when he was sentenced.
2. The appellant was brought up in a large family. He remains close with most of his siblings. His father was a very strict disciplinarian, who sometimes used excessive physical punishment. There is some evidence to suggest that, as a consequence, the appellant had a somewhat traumatic childhood, which caused him to learn to repress his feelings.[5]
3. The appellant left school before the end of year 12 to commence an apprenticeship. He did not complete that apprenticeship. After being employed in various positions, the appellant settled into work in the building trade. At the time he was sentenced, he had been working together with his brother for 15 years in their own successful business.
4. The appellant and his wife have four children, the eldest of whom is A. At the time of sentencing, the ages of the appellant's children ranged from 9 months old to 16 years old. The appellant's family was described in the sentencing proceedings as 'loving and supportive'.
5. At the time of sentencing, the appellant was in good physical health. He was suffering from mild depression and anxiety. There was no evidence that the appellant had suffered from any mental health issue at the time of the offending. The appellant does not have any substance abuse issues. He was a regular consumer of alcohol but has reportedly reduced his alcohol consumption since being charged. The appellant denied that alcohol contributed to the commission of the offences.
6. The appellant has no relevant criminal history. Character references tendered to the sentencing judge showed him to be a person who is regarded highly by those who know him. He is a person of prior good character.
7. Despite the appellant's offending, his wife and children (including A) remain supportive of him and want him to return home. Although the appellant hopes to be reunified with his family, he is aware that protective measures may be necessary in relation to A.

1. Her Honour was provided with a report, in respect of the appellant, by a clinical and forensic psychologist, Ms Jane Sampson, dated 12 June 2023.
2. Ms Sampson noted that the appellant had accepted the facts of the offending as set out in the statement of material facts. The appellant reported to her that, at first, he thought he was touching his wife as he was still half‑asleep; but he admitted that he continued the offending even after realising that it was his daughter because he had become sexually aroused.[6] The appellant also told Ms Sampson that he deeply regretted his behaviour, and he expressed remorse and distress over what he had done. He also displayed an understanding of the impact his offending has had on his daughter, to whom he said he had apologised. The appellant could offer no explanation to Ms Sampson as to why he had committed the offences.
3. Ms Sampson wrote that the possible drivers of the appellant's offending were difficult to ascertain due to his lack of self‑awareness and insight, but were likely to include 'possible repercussions from a traumatic childhood, possible disinhibition as a result of alcohol consumption, sexual gratification and opportunity, poor self‑awareness, impulsivity, poor judgement and poor consequential thinking'.[7]
4. Despite Ms Sampson's reference to alcohol consumption as a possible driver of the offending, the appellant did not claim that his behaviour was disinhibited by alcohol consumption. Hence, her Honour did not consider alcohol consumption to be relevant to the offending.
5. Ms Sampson noted that the appellant took responsibility for his offending. She found no evidence of any personality disorder. Ms Sampson reported that the appellant appeared to be at limited risk of sexual reoffending, and that he did not require sex offender intervention. However, she considered it would be beneficial for him to have access to a specialist psychologist because of his symptoms of depression and anxiety.

The victim's letter to the sentencing judge and character references

1. A's letter to the sentencing judge included statements to the following effect:

(a) expressions of love for the appellant;

(b) a plea to 'have my dad come home';

(c) she and her family have suffered in the appellant's absence, in the months following his arrest;

(d) she misses '[the appellant] so much';

(e) she feels 'safe with [the appellant]'; and

(f) she cannot cope 'with not being able to see him'.

1. There is no reference to the offending in A's letter, nor is there any reference to the effect it has had on A.
2. The sentencing judge also received a letter from one of A's siblings. This letter, too, does not refer to the offending, but it conveys sentiments towards the appellant that are similar to those expressed in A's letter.
3. As mentioned, the sentencing judge also received a number of character references written by adult family members and a family friend. All of them refer, at least in general terms, to the charges and it is clear the authors were aware that their references would be used in the appellant's sentencing. The references speak of the appellant's character in highly complimentary terms, including in relation to his role as a father.

1. In her sentencing remarks, the sentencing judge accurately described the facts of the offending and the appellant's personal circumstances. Her Honour referred to Ms Sampson's psychological report, a pre‑sentence report dated 13 June 2023, the letter from A, and the character references.
2. The sentencing judge identified the aggravating factors, in substance, as being:

(a) The victim was the appellant's vulnerable 14‑year‑old daughter.

(b) The appellant was in a position of significant trust, power and authority over A, as her father. A was reliant upon the appellant as a source of love, support, and guidance; and she considered the appellant to be her 'protector'.

(c) There was a significant age disparity, approximately 23 years, between the appellant and A.

(d) The offending took place 'within the sanctuary of the victim's own home ... which ought to have been a safe haven for her'.

(e) The offending was done for the appellant's own sexual gratification.

1. In addition, the sentencing judge accepted the State's submission that A was particularly vulnerable because, to the knowledge of the appellant, A was struggling with mental health issues and bullying at the time of the offending.
2. Her Honour found that there was a level of persistence to the offending. In effect, she found that count 2 was a more serious offence than count 1 because, by the time of the commission of count 2, the appellant had realised that he was touching his daughter rather than his wife. Her Honour described the conduct in count 2 as 'almost inexplicable', and reflecting 'more serious offending conduct'.
3. The sentencing judge found that the appellant had also attempted to 'minimise the offending' when interviewed by Ms Sampson for the psychological report. As mentioned at [22] above, Ms Sampson noted that the appellant told her that 'during the offending, he at first thought his daughter was his wife as he was asleep'. The sentencing judge then referred to the appellant's VRI and observed that the appellant had failed to inform the interviewing detectives that he had initially confused his daughter for his wife. Her Honour described the explanation given in the psychological report as a 'self‑serving statement' and an attempt to minimise offending that was otherwise in[8]xplicable.8 As will be seen, her Honour's finding that the appellant attempted to 'minimise the offending' is challenged in ground 4 of this appeal.
4. Her Honour identified the following mitigating factors:

(a) The appellant's pleas of guilty, for which she gave a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).

(b) The appellant self‑reported his offending.

(c) The appellant was genuinely remorseful. As to this factor, her Honour referred to the appellant's self‑reporting of the offences to the police and his early pleas of guilty. Her Honour also referred to the appellant's expressions of accountability and guilt in the reports that had been made available to her.

(d) The appellant was of prior good character and had no relevant prior convictions.

(e) The appellant was at a low risk of reoffending.

1. Her Honour noted that A had not provided a victim impact statement but had instead written the letter referred to at [26] above. Her Honour remarked that the expressions of love, devotion and commitment to the appellant in the letter underscored the seriousness of his breach of trust. Her Honour also noted that the absence of any mention of the appellant's offending in the letter was consistent with A 'repressing and suppressing' what had occurred and 'not wanting to face the reality of it'. Understandably, her Honour expressed concern about A's suppression and avoidance, stating that, at some point, 'the reality of the situation comes crashing down'. The sentencing judge found that, having regard to statements made by the appellant in the VRI as to the adverse impact his offending had had on A, and drawing upon the experience of the court, the offending would have had a devastating impact upon A.
2. Her Honour emphasised that the paramount sentencing consideration for offences of the kind committed by the appellant was general deterrence. She also considered that personal deterrence had a role to play. Before taking into account totality, her Honour said that she would have imposed sentences of 2 years' imprisonment on count 1 and 2 years 6 months' imprisonment on count 2.
3. After taking into account totality, her Honour reduced the sentence that she would have imposed on count 1 to 6 months' imprisonment.
4. Her Honour then turned to the question of whether it was appropriate to suspend the terms of imprisonment. Her Honour acknowledged the submissions put by defence counsel to the effect that any sentence of imprisonment could be suspended, having regard to the unusual circumstances of the case and, in particular, the appellant's self‑reporting of the offences. Her Honour concluded, having regard to the seriousness of the offending conduct, and notwithstanding the mitigating factors including the appellant's self‑reporting of the offences, that it was not open to suspend the sentences of imprisonment. Accordingly, she ordered that the sentences of imprisonment be served immediately.

1. The appellant advances five grounds of appeal, as follows:
   1. The sentencing judge erred in imposing sentences on counts 1 and 2 that were manifestly excessive as to type;
   2. The sentencing judge erred in imposing a sentence on count 2 that was manifestly excessive as to length;
   3. The sentencing judge erred in imposing a sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct;
   4. The sentencing judge erred by finding that the appellant 'minimised' his offending.
   5. The sentencing judge erred by taking into account considerations that were irrelevant, adverse to the appellant and lacking a proper evidentiary foundation.

The question of leave to appeal in respect of each of the five grounds was referred to the hearing of the appeal.

1. The legal principles applicable to this case are well established.[9]
2. This court can intervene only if the appellant demonstrates either an express, or implied, material error. Grounds 1, 2 and 3 allege implied errors, whilst grounds 4 and 5 allege express errors. Express error involves acting on a wrong principle; for example, by mistaking the law or facts, or by taking into account an irrelevant consideration. Implied error arises where the end result is so unreasonable, or unjust, that the court must conclude that a substantial wrong has occurred. Any demonstrated error must be material to the sentencing outcome. Thus, an appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion differently.
3. When it is alleged that an individual sentence is manifestly excessive, the impugned sentence should be viewed in light of the maximum sentence prescribed by statute; the standards of sentencing customarily imposed with respect to offences of that type, the place that the offending conduct occupies on the scale for seriousness of crimes of that type; and the offender's personal circumstances.
4. Where the first limb of the totality principle is alleged to have been infringed, it is necessary to examine the total effective sentence to ensure that it bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in broadly comparable cases.
5. The primary sentencing considerations for sexual offending against children are punishment of the offender, general and specific deterrence, and the protection of vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case.
6. There is no tariff for sexual offences against children due to the great variation that can occur in the circumstances of the offending, and in the personal circumstances of offenders.[10] Although this court has previously observed that non‑custodial sentences are not extraordinary for a single offence of indecent dealing with a child contrary to s 321(4) of the Code, that offence carries a lesser maximum penalty of 10 years' imprisonment in circumstances where the child is under the care, supervision or authority of the offender.[11] For the more serious offence of sexual penetration of a child contrary to s 321(2) of the Code, a sentence of suspended imprisonment is, as a matter of fact, rare.[12] In the limited few cases before this court where a sentence other than immediate imprisonment has been imposed for a single incident of sexual penetration, the circumstances differed greatly from the present case.[13] Generally, those cases involved a much smaller age disparity between victim and offender, and the victims in those cases were found to be willing participants in the sexual acts the subject of the offending. Moreover, in none of those cases was the victim under the care, supervision or authority of the offender. However, this circumstance does not relieve a sentencing judge of the obligation to assess, by having regard to all of the facts and circumstances and all the sentencing factors in the particular case, whether it is appropriate to suspend the term, or terms, of imprisonment. The question is whether the appellant has demonstrated that it was not reasonably open for the sentencing judge to conclude that suspending the terms of imprisonment was inappropriate.
7. We will first deal with the allegations of express error in grounds 4 and 5, followed by the allegations of implied error in grounds 1, 2 and 3.

Ground 4 - did the sentencing judge err by finding that the appellant 'minimised' his offending?

1. Ground 4 alleges that the sentencing judge erred by finding that the appellant 'minimised' his offending.

1. In its submissions to the sentencing judge, the State submitted that 'there is a minimisation in respect of the offending', which it argued her Honour should take into consideration.[14] The 'minimisation' alleged by the State was based on an apparent 'discrepancy' between statements made by the appellant in his VRI and later comments he had made to Ms Sampson, as set out in her psychological report dated 12 June 2023.
2. In the VRI, the appellant said that when he woke up, he initially did not realise it was his daughter who was lying with him on the couch. When one of the detectives asked exactly when the appellant realised it was A, he replied:[15]

Probably after, you know, 20, 30 seconds. And then I was like, 'What the fuck am I doing?' Then I ran out, had a shower, cried.

1. A short time later in the VRI, the appellant acknowledged that he did not stop what he was doing once he realised that the person he was penetrating was actually A.[16]
2. In Ms Sampson's report, she wrote:[17]

[The appellant] reported that he had pled [sic] guilty to the current offences. These occurred two years earlier and he accepted the facts as detailed in the [statement of material facts]. He reported his offending after his daughter began to show signs of acting out her distress in recent months. He reported that during the offending he at first thought his daughter was his wife as he was asleep, but he admitted that he briefly continued in the penetration offending, even though he realised it was his daughter as he was sexually aroused. He admitted that he deeply regretted his behaviour, and he could offer no explanation for his motive. He expressed remorse and distress, and he has understanding of the impact on his daughter who he has apologised to. (emphasis added)

1. The 'discrepancy' relied upon by the State to establish its allegation that the appellant 'minimised' his offending was based on the appellant's failure to mention to detectives during the VRI that he initially thought the person with whom he was lying on the couch was his wife.
2. During defence counsel's plea in mitigation, the sentencing judge drew to defence counsel's attention the fact that, in the VRI, the appellant did not say that he first thought it was his wife who was lying next to him. Her Honour said that there was a discrepancy between the statement made in the VRI and that made in Ms Sampson's report. Her Honour said to defence counsel:[18]

So I think the State's right, that there is an element of minimisation insofar as trying to grasp an explanation for what is inexplicable. But to my mind, the most likely explanation - if we're looking for one - is opportunity and arousal. And it happened - opportunity, because his wife's not there. His wife's not there. These things happen when other adults are not present, and that's exactly what happened here.

And we know that offenders do it who would otherwise never act in that way. Why do they do it? An opportunity presents itself, and they just do. And it may be that they never would again, and never have in the past. And we are looking for some sort of explanation to satisfy ourselves, 'How could this possibly happen?' But it's opportunity and arousal, seems to be.

1. In the sentencing remarks, the sentencing judge returned to the subject of the appellant's alleged minimisation of his offending. Her Honour said:[19]

You self-reported this offending to police after becoming distressed following witnessing the change in [A]'s behaviour over time in respect of which you feel responsible. You do, however, seem to have some difficulty in explaining why you committed the offences. And the reports before the court acknowledge your lack of insight in that regard.

You informed the psychologist that all of your sexual needs were met within your marriage. You denied any deviant sexual practices or interests. That includes denying any sexual interest in under‑age minors. You also assert that you've never sexualised your daughter.

In my view, as I said in my exchange with your counsel, to a certain degree you have engaged in minimisation of your offending by stating in your interview with the psychologist that initially you believed it was your wife rather than your daughter, perhaps as a means of attempting to explain the inexplicable.

However, in your electronic record of interview with police you informed police you were well aware your daughter was lying next to you whilst you were watching a movie, and after you fell asleep. You didn't inform police that you woke up and were confused that your daughter was your wife. Indeed, you informed police that you were aware that your wife was absent from the home at the time.

You also informed police - after they asked you were you aware it was your daughter, you then said, well, after 20 to 30 seconds you did realise it was your daughter, and you realised that you were making a grave mistake. Nevertheless, you did continue to sexually penetrate your daughter, and then also count 2 occurred.

When you penetrated your daughter the second time, it's inconceivable that you wouldn't have known that it was in fact your daughter who you were penetrating. In those circumstances, in my view, your suggestion that there was some confusion that your daughter was your wife, when you were interviewed by the psychologist, is a self‑serving statement and it is an attempt by you to minimise the offending and, as I said earlier, perhaps to explain what would otherwise be inexplicable.

In my view, the only plausible explanation for engaging in offending of this nature is that the opportunity to do so presented itself, and that you were sexually aroused and seeking to achieve sexual gratification. Indeed, the psychological report identifies that sexual gratification is likely one of the causal factors of your offending, in addition to the opportunity to do so, poor self‑awareness, impulsivity, poor judgment, and poor consequential thinking. (emphasis added)

1. It was submitted on behalf of the appellant that the sentencing judge erred in finding the appellant minimised his offending by stating in his interview with Ms Sampson that he initially believed he was engaging in sexual activity with his wife rather than his daughter, whilst he had previously failed to refer to this misapprehension in the VRI. The appellant submitted that, although it is true that the appellant made no reference in the VRI to this initial mistaken belief, it was not open to the sentencing judge to conclude that his statement to Ms Sampson was evidence that he had 'engaged in minimisation of [his] offending'. This was so because the 'discrepancy' was, in substance, of no significance, given the appellant had readily admitted in both the VRI and his interview with Ms Sampson that he knew he was lying next to A when he committed both offences. It was further submitted, on the part of the appellant, that the error was material to the sentencing outcome because it amounted to a finding by the sentencing judge of an aggravating factor.

1. In her oral submissions in this court, counsel for the respondent accepted that, although 'a difficult argument to make' having regard to the evidence,[20] it was open to the sentencing judge to find there was a degree of minimisation of the offending by the appellant, based on the discrepancy. In any event, even if her Honour had erred as alleged, it was not material to the outcome because any such error did not 'infect or impact the weight to be given to the key features of this case'.[21]

1. It is clear from the sentencing remarks that her Honour found, in her words:[22]

To a certain degree [the appellant] engaged in minimisation of [the] offending by stating in [his] interview with the psychologist that initially [he] believed it was [his] wife rather than [his] daughter [who was lying next to him immediately before the commission of the offending].

1. Her Honour did not expressly find the appellant's minimisation of his offending to be an aggravating factor, but nor did her Honour expressly refer to the finding of minimisation in terms that it simply reduced the weight which might otherwise attach to mitigating factors such as remorse or acceptance of responsibility. The latter is inconsistent with her Honour's findings as to voluntary disclosure and genuine remorse. In any case, read in context, her Honour's comments imply that the finding of minimisation was a matter that weighed in favour of a heavier penalty. This is most clearly shown in her Honour's characterisation of the appellant's statement to Ms Sampson as being a 'self‑serving statement and ... an attempt by you to minimise the offending and, as I said earlier, perhaps to explain what would otherwise have been inexplicable'.[23]
2. As the finding of minimisation was likely to have resulted in a somewhat more severe sentence, on the basis that in the sentencing judge's opinion, it increased the appellant's culpability, it amounted to an aggravating factor. Therefore, it is a finding that could only be made by the sentencing judge if found beyond reasonable doubt.[24]
3. It is apparent from a consideration of the materials before the sentencing judge that, in our opinion, her Honour erred in finding that the appellant 'minimised' his offending in the statement he made to Ms Sampson.
4. In our view, there was no material difference between what the appellant said to detectives in the VRI and what he later said to Ms Sampson. During the VRI, the appellant consistently said that he did not initially realise that the person lying next to him on the couch was his daughter. But after a short period of time, perhaps 20 to 30 seconds into the commission of the act of sexual penetration that constituted count 1, and prior to the further act of sexual penetration that constituted count 2, the appellant realised that it was A whom he was penetrating.
5. In the VRI, the detectives did not ask the appellant who he thought the person beside him was prior to his realisation that it was A. It may reasonably have been thought by both the investigating detectives and the appellant that it was a detail that did not matter; or that, so far as the appellant did not initially realise that it was A, the appellant was initially under the misapprehension that the person in front of him on the couch was his wife.
6. Whatever the appellant's belief before he realised the person he was penetrating was A, the appellant consistently stated in both the VRI and the interview with Ms Sampson, as recorded in her report, that he knew full well that in continuing the penetration the subject of count 1 and then continuing the further penetration the subject of count 2, he was offending against his daughter. In other words, any temporary belief the appellant may have held that it was his wife lying next to him was, on the appellant's own admission, not advanced as an excuse or explanation for his conduct.
7. We are unable to see how the appellant's statement to Ms Sampson could reasonably be understood as an attempt by him to minimise his offending. Insofar as it was a discrepancy, in the limited sense that it was something not mentioned in the VRI, we are of the opinion that it was not in any way material to the appellant's culpability and thus to the sentencing outcome. Rather, it was an elaboration of a prior consistent statement he had made to the detectives during the VRI. In truth, the statement made to Ms Sampson was neither mitigating nor aggravating. The distinction between the statement made to Ms Sampson and that made in the VRI was one without any importance to the sentencing of the appellant. It ought not to have been used as a statement likely to result in a more severe sentence.
8. There remains the question of whether her Honour's error was material in the sense that it could have affected the sentence imposed. Given that the statement had the effect referred to at [60], contrary to the submissions of the respondent, the error was material.
9. For these reasons, ground 4 has been made out.

Ground 5 - did the sentencing judge take into account irrelevant considerations?

1. In light of the outcome in respect of ground 4 - and, as will be seen, grounds 2 and 3 - it was unnecessary to decide ground 5. Accordingly, leave to appeal was refused in relation to ground 5.

Grounds 1 and 2 - were the individual sentences manifestly excessive as to type or length?

1. We now turn to the grounds alleging implied errors. It is convenient to deal with grounds 1 and 2 together. They allege manifest excess. Ground 1 alleges that the individual sentences on counts 1 and 2 were manifestly excessive as to type. In effect, the appellant alleges that it was not open to the sentencing judge to impose sentences of immediate imprisonment. Rather, the sentences of imprisonment ought to have been suspended. Ground 2 alleges that the length of the term of imprisonment imposed on count 2, but not count 1, was too long.

1. As to ground 1, it was accepted on behalf of the appellant that only in exceptional cases will a penalty other than immediate imprisonment be appropriate for offences of the kind committed by the appellant. However, it was submitted that the present case was exceptional due to an unusual combination of mitigating factors. Those factors included:

(a) the offences were committed in the context that the appellant was asleep at the time that the offending commenced;

(b) the offences were not planned or premeditated, and were committed in the course of a single brief episode without any use of threats, coercion, or violence;

(c) the appellant pleaded guilty at the earliest reasonable opportunity and was genuinely remorseful;

(d) the appellant had positive antecedents and posed a low risk of reoffending; and

(e) most significantly, the appellant voluntarily disclosed his offending to law enforcement authorities.

1. As to ground 2, it was submitted by the appellant that, having regard to the matters referred to in the previous paragraph (in particular, the appellant's voluntary disclosure of his offending), and the outcomes in Schriever v The State of Western Australia;[25] LJP v The State of Western Australia;[26] and KS v The State of Western Australia,[27] the sentence of 2 years 6 months' immediate imprisonment on count 2 was manifestly excessive as to length.

1. As to ground 1, it was submitted on behalf of the respondent that, despite the mitigating factors - including the appellant's voluntary disclosure of his offending - the offences were simply too serious to be dealt with in any way other than by imposition of terms of immediate imprisonment.
2. As to ground 2, the respondent contended that the sentence of 2 years 6 months' immediate imprisonment was within the proper exercise of her Honour's sentencing discretion, having regard to all of the circumstances. The cases cited by the appellant do not support the proposition that the sentence on count 2 was too long.

1. As mentioned, it is well established that, as a matter of fact, the imposition of a sentence other than immediate imprisonment for an offence of sexual penetration of a child of or over the age of 13 years and under the age of 16 years, when the child is under the care, supervision or authority of the offender, is unusual.
2. At the heart of the appellant's submissions in support of ground 1, which essentially alleges that suspended imprisonment should have been imposed on the appellant, is the contention that the appellant's voluntary disclosure of his offending, together with the other factors referred to at [70] above, were so unusual as to justify the imposition of terms of suspended imprisonment in this case.
3. In respect of ground 2, it was submitted, in effect, that the appellant's voluntary disclosure - again, in combination with all of the other mitigatory factors - compelled the conclusion that the sentence of 2 years 6 months' immediate imprisonment was manifestly excessive as to length.
4. As the appellant's voluntary disclosure of his offending to the police is central to each of grounds 1 and 2, it is necessary to state the relevant legal principles. The principles relating to voluntary disclosure, and how it affects the sentencing of an offender, were conveniently summarised by this court in Hill v The State of Western Australia in the following terms:[28]

The relevant legal principles can be shortly stated. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt. Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113]; JWD v The State of Western Australia [2013] WASCA 233 [45]. When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] ‑ [15]; R v Ellis (1986) 6 NSWLR 603, 604; Schriever v The State of Western Australia ... [22]. How significant it is in the sentencing process depends upon the facts and circumstances of the case: Ryan [15].

1. The statement that an offender's voluntary disclosure of guilt is 'ordinarily a significant matter to the credit of the offender', is to be understood to mean that it is a matter of mitigation in addition to the discount given for a plea, or pleas, of guilty.
2. The circumstances in which the offences came to light have been described at [9] ‑ [10] above. Those circumstances were not challenged in the primary proceedings, nor were they challenged in this court. The appellant's confession was not motivated by fear of discovery or acceptance of the likelihood of being proven guilty. In many cases, a child victim may not disclose their experiences of sexual victimisation until years, even decades, after the offending has taken place; that is, if they disclose it at all. Yet, in this case, the appellant made a completely voluntary disclosure of his guilt, apparently against the wishes of A, in circumstances where the offending may not otherwise have ever come to light; at least, not in the foreseeable future. The appellant's voluntary disclosure spared A from much of the trauma associated with having to give evidence at trial. In the circumstances of this case, that disclosure was strong evidence of the appellant's remorse and contrition. Without question, the appellant's voluntary disclosure of guilt was a significant mitigating factor to be taken into account, as a matter in addition to the discount to be given for the pleas of guilty and all other mitigating factors.
3. On any objective analysis, the appellant's offending was very serious. Although the offending occurred in the unusual circumstances highlighted by the appellant's counsel, it was conduct which nonetheless involved substantial criminality. It must not be overlooked that the appellant breached his fundamental obligation to not harm his own child and not take sexual advantage of her. While the appellant may not have appreciated that he was engaging in sexual activity with his daughter until roughly 20 to 30 seconds into the commission of the first act of sexual penetration, he was certainly aware of A's identity throughout the time he committed the act the subject of count 2. His motive for doing so appears to have been his own sexual gratification.
4. Although the offences occurred as part of the one incident, the acts of sexual penetration were repeated. Not only was A vulnerable by reason of her age and relationship to the appellant, but the appellant also knew that A was vulnerable by reason of her psychological state at the time of the offending. Based on the appellant's own observations, A's psychological state further deteriorated after the commission of the offences. Despite the absence of any victim impact statement from A, it is reasonable to assume, as the sentencing judge stated, that the appellant's actions have had, and will continue to have, a seriously adverse psychological effect upon A.
5. As pointed out by the appellant, there have been cases before this court where an offender has made a voluntary disclosure of guilt in respect child sexual offending and was, ultimately, sentenced to terms of suspended imprisonment.[29] Those cases are distinguishable from the present case for a number of reasons, most significantly, because they all involved offences of indecent dealing with, rather than sexual penetration of, a child.
6. As we have said, the appellant's voluntary disclosure of his guilt was a significant additional mitigating factor. Nevertheless, in our opinion, even when viewed with all the other circumstances referred to by the appellant's counsel, it could not justify the imposition of any sentencing option other than immediate imprisonment when weighed against the seriousness of the appellant's offending. The appellant's offending was simply too serious to justify any penalty other than immediate imprisonment. Ground 1 has no reasonable prospect of success.
7. We now turn to ground 2. This ground seeks to attack the length of the term of immediate imprisonment imposed on count 2.
8. Having regard to the maximum penalty of 20 years' imprisonment for the offence, the serious nature of the offending, and the appellant's personal circumstances, a sentence of 2 years 6 months' immediate imprisonment would not have been manifestly excessive in the absence of the appellant's voluntary disclosure.
9. However, the appellant's voluntary disclosure of his offending was a mitigating factor that required, by itself, a substantial additional degree of moderation to the sentence to be imposed. Not only did the voluntary disclosure underscore the appellant's remorse and contrition, it pointed positively to his rehabilitation. Further, there is a strong public interest in offenders voluntarily confessing to their wrongdoings, for the benefit of both victims and the wider community. This is especially so in cases involving intrafamilial sexual offending; which are underreported or, frequently, not reported at all. Accordingly, those who come forward and voluntarily confess to their crimes, doing so not merely to forestall inevitable discovery or in an attempt to prevent the discovery of further offending, should receive, and should be seen to receive, an appropriate additional discount. Such an approach was broadly adopted by this court in the cases cited by the appellant at [71] above.
10. In our opinion, the individual sentence imposed on count 2 in this case did not appropriately reflect the fact, and the importance, of the appellant's voluntary disclosure and subsequent cooperation with law enforcement authorities. The length of the term imposed on count 2 was, having regard to all of the circumstances - most importantly, the appellant's voluntary disclosure - unreasonable and plainly unjust. Implied error has been established in respect of ground 2. This court's discretion to resentence the appellant has been enlivened.

Ground 3 - did the total effective sentence infringe the totality principle?

1. Ground 3 alleges that the total effective sentence of 3 years' immediate imprisonment infringed the first limb of the totality principle. This ground may be shortly disposed of. Given that the individual sentence on count 2 is manifestly excessive, and that it comprised almost the entire total effective sentence, it follows that the total effective sentence was plainly unreasonable or unjust. Ground 3 must be allowed.

1. This court had all the materials needed to resentence the appellant. We will not repeat the unusual facts and circumstances of the offending, nor the appellant's personal circumstances. We would reduce each sentence by 25% for the pleas of guilty under s 9AA of the Sentencing Act, as her Honour did at first instance. Despite the mitigating factors identified above, only terms of immediate imprisonment were appropriate. However, the mitigating factors, particularly the appellant's voluntary disclosure of his offending, justified the imposition of terms of imprisonment, and a total effective term, which reflected appropriate moderation. There must be some accumulation of the terms to reflect the separate acts of penetration, although the degree of accumulation must be tempered by totality considerations. For these reasons, the appellant was resentenced as set out at [3] above. The sentence imposed in relation to count 1 was reduced from 6 months' immediate imprisonment to 4 months' immediate imprisonment for totality reasons.

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

[5] Psychological report (dated 12 June 2023) 2, 5.

[6] Psychological report (dated 12 June 2023) 5.

[7] Psychological report (dated 12 June 2023) 5.

[9] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21]; HTN v The State of Western Australia [No 2] [2022] WASCA 51 [177] ‑ [180].

[10] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55], [62], cited with approval in AAE v The State of Western Australia [2024] WASCA 35 [74], [77] and CGF v The State of Western Australia [2023] WASCA 187 [331].

[12] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [50] ‑ [51]; Nanya v The State of Western Australia [2016] WASCA 169 [45]; Simon v The State of Western Australia [2009] WASCA 10 [26] ‑ [42].

[13] See Pallister v The State of Western Australia [No 2] [2015] WASCA 221; GNR v The State of Western Australia [2015] WASCA 5; Simon.

[17] Psychological report (12 June 2023), par 14.

[24] See Buss JA's summary of the law relating to fact‑finding on sentence in Law v The State of Western Australia [2009] WASCA 193 [25] ‑ [34], particularly [28] ‑ [29], [33]. See also R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27]; R v Storey [1998] 1 VR 359, 369.

[25] Schriever v The State of Western Australia [2008] WASCA 133.

[26] LJP v The State of Western Australia [2010] WASCA 85.

[27] KS v The State of Western Australia [2011] WASCA 85.

[28] Hill v The State of Western Australia [2014] WASCA 150 [33]. See also BGR v The State of Western Australia [2014] WASCA 82 [28] (McLure P, Pullin JA agreeing); JFB v The State of Western Australia [2024] WASCA 41 [85] ‑ [92] (Quinlan CJ, Mazza & Vandongen JJA).

[29] JD v The State of Western Australia [2008] WASCA 147; GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272; BGR.