THE STATE OF WESTERN AUSTRALIA -v- BNY [2023] WASCA 84 (24 May 2023)

10. Her Honour ordered that the individual terms of immediate imprisonment be served concurrently with each other. The total effective sentence was therefore 3 years' immediate imprisonment. The sentences began on 24 June 2022. A parole eligibility order was made.
11. The State relies upon three grounds of appeal.
12. Ground 1 alleges, in essence, that the trial judge made an error of law by deciding that the delay between the commission of the offences and the conviction of the respondent for those offences was, in and of itself, a mitigating factor and by taking that factor into account in deciding upon the sentences to be imposed. Ground 2 alleges, in essence, that the individual sentence for count 6 is manifestly inadequate. Ground 3 alleges, in essence, that the total effective sentence infringes the totality principle.
13. Leave to appeal on each of the grounds has been granted.
14. We would allow the appeal. The trial judge's sentencing decision (including the sentences imposed by her Honour) should be set aside and this court should resentence the respondent.

1. The facts and circumstances of the offences, as found by the trial judge in her sentencing remarks or not in dispute between the parties, are as follows.
2. In 1984 and 1985 the respondent lived with his then wife in a Western Australian town.
3. The respondent had a step‑daughter, who had three daughters including the complainant. The respondent's three step‑granddaughters would occasionally stay at the respondent's home. Sometimes only the complainant would stay. The three step‑granddaughters usually slept in the same room.
4. Count 1 occurred when the three step‑granddaughters were staying at the respondent's home. The respondent's wife had gone to bed. The complainant was asleep. The other step‑granddaughters were awake in another room.
5. The respondent went into the room where the complainant was asleep. He reached under the blankets on the bed where she was sleeping. The complainant was wearing a nighty and underwear. The respondent pulled the complainant's underwear aside and touched her vagina on the skin. He then 'played with' her vagina (ts 413).
6. The trial judge did not make a finding as to the duration of the offending. The complainant was unable to recall what caused the respondent to stop. The respondent said to the complainant, 'Keep this a secret. Don't tell anyone. I love you.'. The complainant replied, 'I love you too, granddad'.
7. Count 5 occurred on another occasion when the complainant was staying at the respondent's home. Her sisters were not present.
8. The respondent asked the complainant to sleep in his bed. The respondent's wife was in her bed in another room.
9. The respondent asked the complainant if he could put his penis in her mouth. He moved her head onto his penis. The respondent held the complainant's head and moved it up and down. He ejaculated in her mouth. The complainant vomited on the bed.
10. The complainant then ran to her grandmother's room and asked if she could sleep with her. She told her grandmother that she did not feel very well.
11. Count 6 occurred on another occasion when the complainant was at the respondent's home. The complainant's grandmother had gone out. The complainant was in the bathroom playing with her grandmother's makeup. She asked the respondent, 'Granddad, do I look pretty?'.
12. The respondent picked up the complainant and placed her on the dining room table. She lay on her back. The respondent stood in front of the complainant and pulled down her underwear. He unzipped his pants and penetrated her vagina with his penis. The complainant said the penis felt 'really big' and that she felt pain and a stinging sensation. The complainant said that the respondent had 'peed' into her vagina.
13. Her Honour made no finding as to the duration of the offending. Her Honour noted, however, that the complainant thought the offending had lasted for about 20 minutes.
14. As a consequence of the offending on count 6, the complainant cried and became delirious and sweaty. She had some bleeding from the vagina. Her vagina was stinging. The complainant lay down on a couch.
15. When her grandmother returned home, the complainant was still lying on the couch. About two or three hours later, the complainant's mother came and took her home. The complainant had a bath at her home. Her vagina was still stinging. It was red and swollen. The complainant was crying and told her mother that she was crying 'because it hurts'.

The respondent's previous convictions for child sex offending

1. On 18 November 1994, the respondent was convicted after trial of five counts of unlawfully and indecently dealing with a girl under the age of 13, contrary to s 189 (repealed) of the Code. Those offences were committed against the present complainant's sister, KR, on unknown dates between 9 January 1981 and 31 December 1984, when KR was aged between 8 and 11 years. The applicable maximum penalty for each offence was 7 years' imprisonment. The respondent was sentenced to a total of 3 years' immediate imprisonment. The offending against KR occurred in the respondent's home while she was in his care. The indecent dealing involved the respondent putting his hand down KR's pants and feeling her vagina through her knickers and putting his hand inside her knickers and touching the front of her vagina (count 1); putting his hand inside her pants and touching her vagina (count 2); placing his erect penis, while he was fully clothed, against her head, shoulder and back (count 3); touching, kissing and licking her breasts (count 4); and feeling her vagina through her knickers and under the edge of her knickers (count 5).
2. On 21 December 1994, the respondent was convicted, upon his pleas of guilty, of four counts of unlawful and indecent dealing with a child under the age of 14, contrary to s 183 (repealed) of the Code. Those offences were committed against the present complainant's other sister, KE, on unknown dates between 17 February 1977 and 17 February 1985, when KE was aged between 5 and 12 years. The applicable maximum penalty for each offence was 7 years' imprisonment. The respondent was sentenced to a total of 2 years' immediate imprisonment to be served cumulatively upon the term of 3 years' immediate imprisonment which had been imposed for the offending against KR. The offending against KE occurred in the respondent's home while she was in the care of the respondent and his wife. The indecent dealing involved the respondent exposing his erect penis and then rubbing it along KE's exposed vagina (count 1); holding her hand against his erect penis and moving her hand up and down so that she masturbated him (count 2); rubbing her vagina with his fingers and spreading her vagina with his fingers and proceeding to look at her vagina (count 3); and kissing her neck before placing his hand inside her underpants and rubbing her vagina (count 4). The respondent was sentenced for his offending against KE on the basis that the four counts in question were not isolated incidents, but were representative of a course of conduct over a seven year period.
3. The total effective sentence imposed for the offences against KR and KE was 5 years' immediate imprisonment. The sentence began on 18 November 1994. A parole eligibility order was made. The respondent applied for leave to appeal against sentence. Leave was refused.
4. Section 29 (repealed) of the Prisons Act 1981 (WA) provided that prisoners serving a term of imprisonment were entitled to a remission of one‑third of their sentence. This remission could be lost in certain circumstances, primarily where the prisoner committed prison offences. However, in practice, most prisoners received full, or close to full, remission. See Worthington v The State of Western Australia.[1]
5. On 4 November 1996, s 29 of the Prisons Act was repealed by s 110 of the Sentencing (Consequential Provisions) Act 1995 (WA). Section 29 was superseded by three provisions which, in combination, had the same effect as s 29. The system of remission under s 29 was, in substance, maintained, even though the new system was described as involving the 'discharge' or 'release' of a prisoner, rather than the remission of one‑third of his or her sentence. See Worthington [57] ‑ [64].
6. Consequently, before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the 2003 Sentencing Amendment Act) on 31 August 2003, offenders sentenced to a fixed term of immediate imprisonment received a virtually automatic one‑third remission in the length of their sentences. In other words, offenders sentenced to a fixed term of immediate imprisonment actually served a maximum of two‑thirds of the head sentences pronounced by the court. If the offenders were made eligible for parole, they could be released into the community at an earlier date. See The State of Western Australia v BLM.[2]
7. By the 2003 Sentencing Amendment Act and the Sentence Administration Act 2003 (WA), Parliament abolished the scheme for remission.
8. Although Parliament abolished the scheme for the virtually automatic one-third remission in the length of fixed terms of immediate imprisonment, Parliament intended there should be no increase in the actual time offenders would be imprisoned. See BLM [198].
9. Accordingly, in general, the so-called 'truth in sentencing' legislation embodied in the 2003 Sentencing Amendment Act had, and was intended by Parliament to have, relevantly, these effects:

(a) by express provision, courts imposing fixed terms of imprisonment must reduce the sentences by one-third to reflect the abolition of the virtually automatic legislative scheme for remission; and
>
> (b) in practice, as a result of par (a) above, the statutory maximum term of imprisonment capable of being imposed on offenders was reduced by one-third.

The general principle was subject to some exceptions. It is unnecessary to refer to them. See BLM [199].

1. In the present case, the total effective sentence of 5 years' immediate imprisonment imposed on the respondent in 1994 was subject to the virtually automatic legislative scheme for remission. So, if the remission is taken into account, that total effective sentence was 3 years 4 months' immediate imprisonment with eligibility for parole.
2. The information before the trial judge included a pre‑sentence report dated 21 June 2022. The report refers to the sentences imposed on the respondent in 1994. As we have mentioned, the total effective sentence of 5 years' imprisonment began on 18 November 1994. The report states that the respondent was released on parole on 17 June 1996. The earliest date on which the respondent could have been released on parole was 18 July 1996. His release on 17 June 1996 is probably explicable on the basis that a work release order was made. The expiry date of the total effective sentence was 17 March 1998 (being 3 years 4 months after the total effective sentence began). The report states that the respondent completed his parole period satisfactorily.

1. The trial judge recounted the facts and circumstances of the offending against the complainant (ts 413 ‑ 414).
2. Her Honour also referred to the facts and circumstances of the respondent's previous child sex offending against KR and KE (ts 416 ‑ 417).
3. In about 1984 the respondent's marriage ended when his offending against KR and KE was discovered. A later relationship ended in 2003. When he was sentenced by the trial judge, the respondent was not in a relationship. The respondent does not have any family support in the community (ts 415).
4. The respondent has always been hard working. He was employed in a number of different occupations until 1991. At that time the respondent was working as a crane driver. He suffered a very significant accident at work. The respondent broke his pelvis and both legs. He had surgery to repair the fractures. His spleen and one of his testicles were removed. The respondent was in hospital for many months. He then underwent a long period of rehabilitation. He still suffers ongoing impairment as a result of the accident (ts 415 ‑ 416).
5. After he had recovered sufficiently from his injuries, the respondent returned to work. He continued to work until he was aged about 75, when he retired on a disability support pension (ts 415).
6. In 1985 the respondent transferred his interest in his home to his estranged wife upon the breakdown of their marriage. Her Honour did not accept that the respondent made this transfer because he was remorseful for his offending behaviour in relation to the complainant, KR and KE. Her Honour said that 'any degree of remorse that might have been evident in the transfer of the property is of a very limited nature' (ts 417).
7. The trial judge made these findings and observations in relation to the vulnerability of the complainant and the impact of the offending upon her:

(a) In 1995 the complainant reported the offending to police. At that time she was aged about 17. She was unable to speak 'properly' about the offending. It was not until 2019, when she was aged nearly 40, that she was able to speak 'properly' to police (ts 414).
>
> (b) When the offending occurred the complainant was very vulnerable because of her young age and also because she was in the respondent's care (ts 414 ‑ 415).
>
> (c) The respondent was in a position of trust in relation to the complainant and he used that position to facilitate the offending (ts 415).
>
> (d) The respondent told the complainant that what he had done to her was 'a secret' and that 'it was because [he] loved her' (ts 415).
>
> (e) The offending caused the complainant physical pain, distress and injury. The offending has been profoundly damaging to the complainant. Her victim impact statement was 'harrowing'. The offending has had a lifelong effect upon the complainant and has altered the course of her life. She has struggled with mental illness. At times her mental illness has been so severe that she has been admitted to hospital for long periods. The complainant has never held employment. She has been on a disability support pension and has a very limited social life. The complainant has never had any 'long‑term, meaningful, romantic relationships'. When she was aged 29 the complainant gave birth to a child. The complainant was unable to care for her child because of the debilitating nature of her mental illness (ts 415).

8. Her Honour noted that, at the time of sentencing by her Honour, the respondent was aged 86. He suffers from angina. A recommendation has been made that he undergo triple bypass surgery. The respondent has skin cancers that require treatment. He had used alcohol 'problematically' from time to time, most notably around the time of the offending, but he no longer does so (ts 415 ‑ 416).
9. The trial judge made these findings and observations in relation to the interval between the occurrence of the offending and the respondent being charged for the offending, the respondent's progress towards rehabilitation and the likelihood of the respondent reoffending:

(a) In 1995, while he was in prison for the offending against KR and KE, the respondent completed a sex offender treatment programme (ts 416).
>
> (b) Since 1995 the respondent had not reoffended (ts 416).
>
> (c) The completion of the sex offender treatment programme and the absence of reoffending since 1995 was mitigatory, and the respondent had 'effectively achieved rehabilitation' (ts 416).
>
> (d) The respondent 'would not appear to be [at] a very significant risk of ... continuing to offend in the future ... partly because of the long lapse without offending and also because of [his] age' (ts 416).
>
> (e) The respondent maintained his innocence throughout the trial and continued to maintain his innocence at the sentencing hearing (ts 417).
>
> (f) The need for personal deterrence was 'greatly reduced [because the respondent had] largely rehabilitated [himself] and [his] age really shows that [the respondent is] unlikely to continue to offend' (ts 417).
>
> (g) There was 'the particular question of delay'. There was 'a delay since [the respondent was] sentenced [for his offending against KR and KE] of ... about 30 years'. Her Honour needed to 'take into account a way in which that delay plays out' (ts 418).
>
> (h) Her Honour accepted that the respondent was 'rehabilitated' and that 'the delay is profound and has [had] a profound effect with respect to [the respondent]' (ts 419).
>
> (i) The 'delay' should be taken into account by making 'appropriate adjustments to the terms of imprisonment' that her Honour was going to impose (ts 420).

(a) As to count 6, her Honour said that she would 'normally' have imposed a sentence of 5 years' immediate imprisonment, 'but because of the combination of [the respondent's] age and the delay' her Honour would reduce the sentence for count 6 to 3 years' immediate imprisonment. The sentence of 3 years' immediate imprisonment for count 6 would be the 'head sentence' (ts 420).
>
> (b) As to count 1, her Honour said that the offence required a sentence of 2 years' immediate imprisonment. Her Honour would not adjust the length of that term, on account of delay, because she would order that the term be served concurrently with the sentence for count 6 (ts 420).
>
> (c) As to count 5, her Honour said that she would have imposed a sentence of 3 years 6 months' immediate imprisonment and would 'normally' have ordered that the sentence be served cumulatively upon the sentence for count 6. However, 'because of the delay', her Honour would reduce the sentence for count 5 to 2 years 6 months' immediate imprisonment and would order that the sentence be served concurrently with the sentence for count 6 (ts 420).

11. So, the total effective sentence for the offending was 3 years' immediate imprisonment.
12. The trial judge then said (ts 420):

[H]ad [the respondent] been sentenced at the time [he was] sentenced for the offending against [KR] and [KE] in 1994, [the respondent] would have received a sentence of at least 5 years additional to that sentence. In other words [the respondent] would have served a term of at least 10 years had [he] been sentenced then.

The result of what [her Honour was] doing is that [the respondent] will serve a term of only 8 years. [Her Honour would] make [the respondent] eligible for parole. There's no backdating.

1. As to ground 1, counsel for the State acknowledged that there was a substantial period between the commission of the offences against the complainant, on the one hand, and the respondent being charged, tried and convicted of those offences, on the other. However, it was contended that the delay was not, in and of itself, a mitigating factor.
2. Counsel submitted that the delay was relevant because the respondent appeared to have been rehabilitated and therefore did not present a significant risk of reoffending. Those features were separately and specifically recognised by the trial judge as mitigating.
3. It was submitted that the delay may also have been relevant in that, because of the respondent's advanced age when he was sentenced, there was greater scope for the application of the second limb of the totality principle.
4. Counsel emphasised that the delay was not the result of dilatoriness or neglect by the State.
5. It was submitted that the respondent could not be said to have arranged his affairs upon a reasonable expectation that he would not be charged with offending against the complainant. The respondent had always denied having committed the offences and, consequently, he could not be said to have made changes to his life as a result of the offending. Any 'uncertain suspense' experienced by the respondent before he was charged arose because he did not know whether the law enforcement authorities would become aware of his offending against the complainant. Any expectation by the respondent that he would not be charged was merely a hope that the complainant would not report the offences.
6. Counsel noted that:

(a) Her Honour did not reduce, on account of delay, the sentence she imposed for count 1 (ts 420).
>
> (b) Her Honour reduced the sentence she would otherwise have imposed for count 5 'because of the delay' (ts 420).
>
> (c) Her Honour reduced the sentence she would otherwise have imposed for count 6 'because of the combination of [the respondent's] age and the delay' (ts 420).

7. It was submitted that the trial judge's decision to reduce the sentence she would otherwise have imposed for count 5 'because of the delay' was erroneous in that the delay was not, in and of itself, a mitigating factor. Her Honour did not state that the reduction was on account of the mitigation afforded by the respondent's advanced age, state of health or apparent rehabilitation or by the unlikelihood of his reoffending.
8. It was also submitted that her Honour's decision to reduce the sentence she would otherwise have imposed for count 6 'because of the combination of [the respondent's] age and the delay' was erroneous in that the delay was not, in and of itself, a mitigating factor. Her Honour stated that the reduction was, in part, on account of the mitigation afforded by the respondent's advanced age, but did not state that the reduction was, in part, on account of the mitigation afforded by the respondent's state of health or apparent rehabilitation or by the unlikelihood of his reoffending.
9. Counsel accepted that it may have been open to the trial judge to reduce an individual sentence, in the application of the totality principle, if that sentence was to be served cumulatively upon another sentence. However, it was submitted that her Honour did not indicate that the reductions in the individual sentences for count 5 and count 6 were due to totality. Indeed, the fact that her Honour ordered that all of the individual sentences be served concurrently indicated that the reductions were not made in the application of the totality principle.
10. As to ground 2, counsel for the State submitted that the offending on count 6 was a particularly serious example of the offence of unlawful carnal knowledge of a girl under the age of 13, having regard to:

(a) the complainant's age;
>
> (b) the relationship between the respondent and the complainant;
>
> (c) the fact that the respondent had been entrusted with the complainant's care and breached that trust for his own sexual gratification;
>
> (d) the fact that the complainant suffered an injury as a result of the offending, namely swelling, soreness and stinging in and around the vagina; and
>
> (e) the ongoing severe impact of the offending on the complainant's mental health and life generally.

11. It was submitted that the individual sentence of 3 years' immediate imprisonment for count 6 was significantly less than the customary range of sentences and that there was nothing in the circumstances of the offence or the respondent's personal circumstances to justify the sentence. According to counsel, the sentence for count 6, having regard to all relevant sentencing factors including the maximum penalty, was so inadequate as to manifest error.
12. As to ground 3, counsel for the State noted that, in the present case, an additional consideration in the application of the totality principle was that the respondent had, after committing the offences, been convicted and sentenced for the offences committed against KR and KE.
13. The respondent offended against the complainant in 1984 or 1985; he offended against KR between 1981 and 1984; he offended against KE between 1977 and 1985; and he was convicted and sentenced for the offending against KR and KE in 1994.
14. Counsel referred to the trial judge's statement that 'the result' of the total effective sentence she was imposing (namely 3 years' immediate imprisonment) and the total effective sentence imposed in 1994 (namely 5 years' immediate imprisonment) was that the respondent would serve 'a term of only 8 years' (ts 420). Counsel submitted that her Honour's calculations were incorrect because her Honour did not take into account the fact that the total effective sentence imposed in 1994 was subject to the system of remission under s 29 (repealed) of the Prisons Act. If her Honour had taken into account the remission system (as she should have done), the total effective sentence imposed in 1994 was 3 years 4 months' immediate imprisonment and the overall total effective sentence for the offending against the complainant, KR and KE was 6 years 4 months' imprisonment.
15. It was submitted that, having regard to all relevant sentencing factors, including the respondent's advanced age and health when he was sentenced by the trial judge, the total effective sentence of 3 years' immediate imprisonment imposed by her Honour resulted in an overall total effective sentence that did not bear a proper relationship to the overall criminality involved in all of the offences committed by the respondent against the complainant, KR and KE.

1. As to ground 1, counsel for the respondent accepted that delay is not, in and of itself, a mitigating factor.
2. It was submitted that, when the impugned statements by the trial judge are considered in the context of her Honour's sentencing remarks as a whole, it is apparent that her Honour did not make the alleged errors. In particular, it was submitted that her Honour's references in her sentencing remarks to 'delay' should be understood as referring to the circumstances in which a substantial lapse of time between offending and sentence can cause or facilitate mitigation.
3. Counsel argued that it was apparent, throughout the trial judge's sentencing remarks, that her Honour was of the view that the substantial period between the commission of the offences against the complainant, on the one hand, and the respondent being charged, tried and convicted of those offences, on the other, caused or facilitated mitigation. In particular:

(a) the respondent had 'effectively achieved rehabilitation' because of his imprisonment as a result of his offending against KR and KE, including the sex offender treatment programme he had completed (ts 416);
>
> (b) the respondent was not at a significant risk of reoffending because of the long period without further offending and because of his advanced age (ts 416);
>
> (c) there was evidence of the respondent's rehabilitation because of 'the very considerable delay' (ts 419);
>
> (d) 'the delay' was 'profound' and had a 'profound effect' on the respondent, both in respect of his rehabilitation and in respect of his advanced age and poor health (ts 419); and
>
> (e) the mitigation caused or facilitated by 'the delay' formed part of, as counsel put it, 'the totality considerations as to the relationship between the previous sentences imposed [in 1994] and the sentences imposed [by her Honour] for these offences'.

4. It was submitted that the word 'delay', as used by her Honour, was a 'loaded word'. Her Honour was, in substance, referring to what counsel described as 'mitigatory delay' in that during the period between the commission of the offences against the complainant, on the one hand, and the respondent being charged, tried and convicted of those offences, on the other, he became of advanced age, his health deteriorated, he appeared to be rehabilitated, he had not reoffended and it was very unlikely that he would reoffend.
5. Counsel contended that, in any event, even if the trial judge made the error alleged in ground 1, no different sentence should have been imposed.
6. As to ground 2, counsel for the respondent noted that a sentence which appears to be inadequate may not have that character if it is ordered to be served cumulatively upon a sentence for another offence. It was submitted that, although her Honour ordered the sentences for counts 1, 5 and 6 to be served concurrently, that order had to be understood in the context of the manner in which the parties and her Honour approached the issue of totality, having regard to the sentences previously served by the respondent for his offending against KR and KE. Counsel said that at the sentencing hearing before her Honour the prosecutor contended that her Honour should impose appropriate sentences for the offences against the complainant having regard to the earlier term of imprisonment served by the respondent. See the State's written outline of submissions before the primary judge, filed on 17 June 2022, at [26] ‑ [40]. Similarly, defence counsel contended that her Honour should impose 'a sentence ... that reflects the overall criminality for all counts [in] this indictment and the previous matters' (ts 387).
7. Counsel noted that the trial judge had reduced the sentence for count 6 from 5 years' immediate imprisonment to 3 years' immediate imprisonment on account of the respondent's advanced age and what counsel described as the 'mitigatory delay'.
8. It was submitted that the State's complaint as to the alleged manifest inadequacy of the sentence for count 6 falls away once it is recognised that the sentence was reduced, in part for mitigation, and, in part, for totality reasons.
9. Counsel argued that, having regard to the respondent's personal circumstances and the period of imprisonment he had already served for his offending against KR and KE, the sentence of 3 years' immediate imprisonment for count 6 was within the range of a sound exercise of the sentencing discretion.
10. As to ground 3, counsel for the respondent disputed the correctness of counsel for the State's contention that the overall total effective sentence to be considered is not 8 years' imprisonment (being the aggregate of 5 years for the previous offending and 3 years for the current offending), but rather 6 years 4 months' imprisonment (after taking into account the virtually automatic one‑third remission on the sentence for the previous offences). It was submitted that the proper approach to totality, in the circumstances of the present case, is to ask what sentence would likely have been imposed if the offender had been sentenced for all of the relevant offences at the one time. That was what her Honour did in the present case. Counsel for the respondent referred to previous decisions of this court and the Court of Criminal Appeal to the effect that, in fixing the length of a custodial sentence, the sentencing judge should not have regard to the remission and parole regimes. Sentences should not reflect and react to every anomaly that may arise from amendments to sentencing legislation. The proper focus is on the length of the custodial sentence to be imposed rather than on the time actually served or likely to be served in custody.
11. Counsel submitted that, to the extent reasonably comparable cases can be identified, they do not support the State's contention that the total effective sentence was 'so far beyond the range as to demonstrate implied error'.
12. It was submitted that, in the circumstances, the overall total effective sentence of 8 years' imprisonment for the offending against the complainant, KR and KE was open on a proper exercise of the trial judge's discretion, and ought not be disturbed on appeal.

1. It is a well established sentencing principle that delay is not, in and of itself, mitigatory. However, delay, combined with other relevant sentencing factors favourable to the offender, for example actual rehabilitation or progress towards rehabilitation, is mitigatory. In those circumstances, delay, while not in and of itself mitigatory, is causative of or facilitates mitigation, even if the delay is wholly or partly attributable to the offender. See Scook v The Queen.[3]
2. In the present case, the trial judge's reference to the interval between the respondent's commission of the offences against the complainant in 1984 or 1985, on the one hand, and the respondent being charged, tried and convicted of those offences between 2020 and 2022, on the other, as 'delay' required qualification and explanation.
3. The term 'delay' is often used in a sense which conveys neglect or time‑wasting. In the present case, neither the State nor the complainant was responsible for any delay in that sense. The complainant's inability to pursue the complaint with reasonable promptness was attributable to the debilitating nature of her mental illness. The respondent's offending against the complainant was a material cause of her ongoing psychological trauma. The respondent has never admitted or taken responsibility for the offending. The law enforcement authorities and the prosecution service acted with reasonable promptness when the complainant's mental state enabled her to make and pursue her complaint.
4. The critical issue, in the context of ground 1, is whether:

(a) her Honour's statement that she had reduced the sentence she would otherwise have imposed for count 5 'because of the delay' (ts 420); and
>
> (b) her Honour's statement that she had reduced the sentence she would otherwise have imposed for count 6 'because of the combination of [the respondent's] age and the delay'(ts 420),

should be understood to mean that her Honour reduced those sentences as a result of 'mere delay' and not as a result of 'mitigating factors' (in particular, the respondent's advanced age, state of health and apparent rehabilitation and the unlikelihood of his reoffending) that arose during the interval between the respondent's commission of the offences against the complainant and the respondent being charged, tried and convicted of those offences.

1. Plainly, the trial judge's impugned statements must be read in the context of her sentencing remarks as a whole. When that is done it is apparent that her Honour recognised that since 1995 a number of circumstances had occurred which decreased the extent to which the respondent should be punished. Those circumstances, as adverted to by her Honour, comprised the respondent's advanced age; his medical condition; his having completed a sex offender treatment programme while in prison for the offending against KR and KE; the absence of any reoffending since 1995; the respondent having 'effectively achieved rehabilitation' (ts 416); and his appearing not to be at a very significant risk of reoffending.
2. We are persuaded that her Honour used the word 'delay', in the course of reducing the sentences she would otherwise have imposed for count 5 and count 6, as a shorthand description of the mitigating factors that had emerged since the respondent committed the offences against the complainant. Her Honour did not make the basic error of treating 'mere delay' as, in and of itself, mitigatory.
3. Ground 1 fails.

1. The principles applicable where the State asserts that a sentence is manifestly inadequate and relevant general sentencing principles are set out in The State of Western Australia v Hussain.[4]
2. As we have mentioned, the maximum penalty for the offence of unlawful carnal knowledge of a girl under the age of 13, contrary to s 185 (repealed) of the Code, is 20 years' imprisonment.
3. The primary sentencing considerations for offences of the kind committed by the respondent are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen;[5] PP v The State of Western Australia;[6] and M v The State of Western Australia.[7]
4. It is well established that, in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia.[8]
5. There is no 'tariff' for offences of the kind committed by the respondent (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. See The State of Western Australia v Akizuki;[9] and Juma v The State of Western Australia.[10]
6. By s 6(2)(b) of the Sentencing Act 1995 (WA), the seriousness of an offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence, including 'the vulnerability of any victim of the offence'.
7. At common law, a sentencing judge may take into account, in determining sentence, any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the offence. See R v Webb;[11] and Porter v The Queen.[12] See also, in relation to victim impact statements, s 24 to s 26 of the Sentencing Act.
8. We have considered a number of previous appeals against sentence involving serious sexual offending against children. Those cases include Bropho v The State of Western Australia [No 2];[13] MMC v The State of Western Australia;[14] The State of Western Australia v FJG;[15] GHK v The State of Western Australia;[16] NHT v The State of Western Australia;[17] The State of Western Australia v CGT;[18] and SMO v The State of Western Australia.[19] It is unnecessary to reproduce the relevant facts and circumstances of the cases we have considered or the relevant sentencing dispositions. There are some comparable features between some of those cases and the present case, but there are also distinguishing features.
9. The facts and circumstances of the respondent's offending on count 6 were egregious. At the material time, the respondent was aged 47 or 48 and the complainant was aged 5 or 6. The respondent penetrated the complainant's vagina with his penis. The complainant said that the respondent had 'peed' into her vagina (ts 409). The penetration caused the complainant physical pain. Her vagina became red and swollen. There was some vaginal bleeding. The complainant was distressed and wept. The respondent sought to induce the complainant's silence by telling her that what he had done to her was 'a secret' and that 'it was because [he] loved her'. Those comments would, no doubt, have caused the complainant emotional conflict. At the material time, the respondent was entrusted with the complainant's care. He abused that trust by exploiting the complainant for his own sexual gratification and without regard for her welfare.
10. The complainant has suffered severe and ongoing damage as a result of the offending. She has struggled with very serious mental illness. The complainant has never been employed; she is in receipt of a disability support pension; and her social interaction is minimal. Her life has been blighted by the offending.
11. The respondent was not youthful or inexperienced for sentencing purposes. He did not evince remorse or demonstrate insight into his offending. The respondent did not accept responsibility for what he had done. Although he was entitled to proceed to trial, the respondent did not have the mitigation that a plea of guilty would have brought.
12. The respondent was not otherwise a person of good character. As we have mentioned, he committed serious child sex offences against the complainant's sisters, KR and KE. Most of the offending, at least, against KR and KE occurred before the offending against the complainant.
13. There were some mitigating factors. The respondent had a good work history. When he was sentenced by the trial judge, the respondent was aged 86 and suffered from angina. He had some other medical conditions. However, there is no reason to doubt that appropriate medical care and treatment will be provided to him while he is in custody. Since 1995 the respondent has not reoffended. Her Honour found (despite the respondent's continuing stance of denial and despite there being no evidence that he had undergone any form of psychiatric treatment apart from completing the sex offender treatment programme in 1995) that the respondent had been rehabilitated. The respondent is unlikely to reoffend.
14. In our opinion, the individual sentence imposed on the respondent for count 6 was not commensurate with the seriousness of the offence. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors mentioned by her Honour) that the length of the sentence was unreasonable or plainly unjust.
15. We consider that, when the individual sentence for count 6 is viewed from the perspective of:

(a) the maximum penalty;
>
> (b) the facts and circumstances of the offence;
>
> (c) the vulnerability of the complainant;
>
> (d) the dreadful impact of the offending on the complainant;
>
> (e) the general pattern of sentencing for offences of this kind;
>
> (f) the importance of denunciation of the respondent's criminal behaviour and general deterrence as sentencing factors; and
>
> (g) the mitigating factors,

the sentence was not merely 'lenient' or 'at the lower end of the available range'.

1. The individual sentence for count 6 was substantially less than the sentence open to the trial judge on a proper exercise of the sentencing discretion. The sentence was manifestly inadequate.
2. Ground 2 has been made out.

1. The principles applicable where it is claimed that a total effective sentence infringes the first limb or the second limb of the totality principle are set out in Wark v The State of Western Australia.[20] We will repeat what was written in that case in relation to the second limb.
2. Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter;[21] Braham v The Queen;[22] R v Whyte;[23] Gulyas v The State of Western Australia;[24] and R v Iles.[25]
3. However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.
4. So, the second limb of the totality principle is not absolute. There are cases in which an offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time that would permit them to enjoy their remaining life.
5. As a matter of fact, it is unusual for a total effective sentence to be reduced because it infringes the second limb of the totality principle. Even in circumstances where an offender is of advanced age, that fact alone does not necessarily require a reduction in sentence.
6. In Smith v The State of Western Australia,[26] Buss JA (McLure P & Mazza J agreeing) referred to various provisions of the Prisons Act and the Prisons Regulations 1982 (WA) in relation to the duties imposed on the Chief Executive Officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act and on medical officers to ensure that medical care and treatment is provided to prisoners.
7. In Jarvis v The Queen,[27] Ipp J said that it has long been the policy and practice of the Supreme Court of Western Australia to ignore remissions to which an offender might be entitled when fixing sentence. His Honour added that the general tenor of the complex system of remissions and parole in Western Australia supported that approach (208). Similarly, Murray J expressed the view in Jarvis that it is inappropriate to consider the totality principle in the context of that proportion of the sentences which would be likely to be served ultimately, having regard to either the possibility that because the offender is eligible for parole he or she might serve a lesser term than the term imposed or because of remissions to which the offender might be entitled (214). See also Hoare v The Queen.[28]
8. In Wicks v The Queen,[29] Malcolm CJ observed that statutory remissions for good behaviour should not be taken into account when determining the length of sentence to impose.
9. In Yates v The State of Western Australia,[30] Buss JA noted that, before the commencement of the 2003 Sentencing Amendment Act, which abolished the scheme for remissions, sentencing courts were not permitted to take into account that scheme in determining the head sentence. See also the comments of Martin CJ in Yates [27].
10. The proper approach to the system of remissions in the context of sentencing, which was discussed in Jarvis, Wicks and Yates (and also in other cases), related to the prospective operation of remissions (and also parole) in relation to sentences to be imposed by a sentencing judge. The proper approach enunciated in those cases did not prohibit a sentencing judge from having regard to the actual time an offender had spent in custody serving sentences that had been imposed previously and that had been completed.
11. In the present case, it was relevant, in the trial judge's application of the totality principle, to take into account the total effective sentence imposed on the respondent in 1994 (namely 5 years' immediate imprisonment) and the actual time the respondent had spent in custody serving that sentence.
12. It is well established that, in certain circumstances, a completed sentence may be taken into account in applying the totality principle. See Labrook v The State of Western Australia.[31]
13. We have had regard to a number of previous appeals against sentence where the total effective sentences imposed upon offenders for serious sexual offending against children were considered. Those cases include ERA v The State of Western Australia;[32] DKA v The State of Western Australia;[33] NHT; CGT; Indich v The State of Western Australia;[34] LYN v The State of Western Australia;[35] and The State of Western Australia v AHD.[36] It is unnecessary to repeat the relevant facts and circumstances and the sentencing outcomes in those cases. There were some comparable features between some of those cases and the present case, but there were also distinguishing features.
14. In our opinion, the total effective sentence of 3 years' immediate imprisonment imposed by her Honour in the present case resulted in an overall total effective sentence that did not bear a proper relationship to the overall criminality involved in all of the respondent's offences against the complainant, KR and KE, having regard to all relevant facts and circumstances and all relevant sentencing factors.
15. As we have mentioned, in the context of ground 2, the individual sentence for count 6 was manifestly inadequate.
16. The facts and circumstances of the respondent's offending on count 5 were a very serious instance of offending against s 183 (repealed) of the Code. The facts and circumstances of the respondent's offending on count 1 were serious.
17. We have already recounted, in the context of ground 2, the mitigation available to the respondent.
18. Each of the offences alleged in counts 1, 5 and 6 occurred on a separate date. Significant weight had to be given to the importance of properly marking the respondent's offending against the complainant on three separate occasions. The objective facts and circumstances of the respondent's offending against the complainant, viewed as a whole, were extremely serious.
19. We have already referred to the facts and circumstances of the respondent's offending against KR and KE. The respondent was convicted after trial in relation to his offending against KR and he was convicted upon his pleas of guilty in relation to his offending against KE.
20. The respondent's overall offending behaviour against the complainant, KR and KE was abhorrent.
21. The total effective sentence of 3 years' immediate imprisonment imposed by her Honour resulted in an overall total effective sentence for the offending against the complainant, KR and KE that was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The overall total effective sentence was substantially less than the overall total effective sentence that was open to the trial judge on a proper exercise of the sentencing discretion.
22. Unfortunately, from the respondent's perspective, the extremely serious nature of his overall offending, considered as a whole, and the necessity for denunciation of his criminal conduct and the demands of general deterrence, significantly reduced the extent to which humanitarian considerations could be accommodated in the overall sentencing disposition. Notwithstanding that it is possible that the respondent may die in custody or that upon release he may not have any prospect of a useful life, the overall total effective sentence for the offending against the complainant, KR and KE was unreasonable or plainly unjust.
23. Ground 3 has been made out.

1. The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeal. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges. See Green v The Queen[37] and CMB v Attorney‑General (NSW).[38]
2. If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.
3. In the present case, counsel for the respondent disclaimed any reliance upon the residual discretion (appeal ts 29).
4. In our opinion, the intervention of this court in the appeal is necessary to maintain adequate standards of sentencing. The individual sentence for count 6 and the overall total effective sentence were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. The public interest in the maintenance of appropriate sentencing standards for very serious offending of the kind in question requires that the appeal be allowed, the sentences imposed by the trial judge be set aside and the respondent resentenced.

The outcome of the appeal and the resentencing of the respondent

1. The appeal should be allowed.
2. The trial judge's sentencing decision, including the sentences imposed by her Honour, should be set aside.
3. This court has the material necessary to resentence the respondent.
4. We have reduced each sentence that we would otherwise have imposed to reflect the mitigating factors referred to by her Honour.
5. At the conclusion of the hearing of the appeal, this court ordered that by 4.00 pm on 26 April 2023 the respondent may file and serve an application in an appeal supported by an affidavit in relation to any facts and circumstances which have occurred since the sentencing by the trial judge and which are relevant to any resentencing by this court in the appeal. No application was filed pursuant to that order.
6. We would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment as follows:

(a) Count 1: 2 years;
>
> (b) Count 5: 2 years 6 months; and
>
> (c) Count 6: 5 years 6 months.

7. The new individual sentences should be served concurrently having regard to the respondent's advanced age and state of health. Otherwise, some accumulation would have been appropriate. The new total effective sentence for counts 1, 5 and 6 is therefore 5 years 6 months' imprisonment.
8. The new total effective sentence of 5 years 6 months' imprisonment should be taken to have taken effect on 24 June 2022. The respondent is eligible for parole. He will be eligible to be considered for release on parole when he has served 3 years 6 months in custody calculated from 24 June 2022.

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

[1] Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [58], [60] ‑ [61] (Pullin JA).

[2] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [194] (Buss JA).

[3] Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [31] (McLure JA; Miller JA agreeing), [57] ‑ [65] (Buss JA; Miller JA agreeing).

[4] The State of Western Australia v Hussain [2020] WASCA 186 [88] ‑ [97] (Buss P, Mazza & Beech JJA).

[5] Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J; Malcolm CJ & Seaman J agreeing).

[6] PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J; Malcolm CJ & Murray J agreeing).

[7] M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA; Steytler P & McLure JA agreeing).

[8] MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA; Wheeler & Buss JJA agreeing).

[9] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] ‑ [69] (Steytler P).

[10] Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P, Newnes JA & Mazza J).

[11] R v Webb [1971] VicRp 16; [1971] VR 147, 151 (Winneke CJ, Pape & Lush JJ).

[12] Porter v The Queen [2008] NSWCCA 145 [54] (Johnson J; Bell JA & McCallum J agreeing).

[13] Bropho v The State of Western Australia [No 2] [2009] WASCA 94.

[14] MMC v The State of Western Australia [2012] WASCA 187.

[15] The State of Western Australia v FJG [2012] WASCA 206.

[16] GHK v The State of Western Australia [2014] WASCA 19.

[17] NHT v The State of Western Australia [2016] WASCA 167.

[18] The State of Western Australia v CGT [2018] WASCA 226.

[19] SMO v The State of Western Australia [2022] WASCA 70.

[20] Wark v The State of Western Australia [2023] WASCA 66 [633] ‑ [641] (Buss P, Mazza & Vaughan JJA).

[21] R v Hunter (1984) 36 SASR 101, 103 (King CJ).

[22] Braham v The Queen [1994] NTCCA 60; (1994) 116 FLR 38, 51 (Angel J).

[23] R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 - 406 (Winneke P; Bongiorno & O'Bryan AJJA agreeing).

[24] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P; McLure & Miller JJA agreeing).

[25] R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA; Neave JA agreeing).

[26] Smith v The State of Western Australia [2010] WASCA 176 [68].

[27] Jarvis v The Queen (1993) 20 WAR 201, 208.

[28] Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348, 353 ‑ 355 (Mason CJ, Deane, Dawson, Toohey & McHugh JJ).

[29] Wicks v The Queen (1989) 3 WAR 372, 384.

[30] Yates v The State of Western Australia [2008] WASCA 144 [112].

[31] Labrook v The State of Western Australia [2016] WASCA 127 [34] ‑ [40] (Mitchell J; McLure P & Mazza JA agreeing).

[32] ERA v The State of Western Australia [2013] WASCA 163.

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

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

[35] LYN v The State of Western Australia [2019] WASCA 45.

[36] The State of Western Australia v AHD [2021] WASCA 13.

[37] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).

[38] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).