THE STATE OF WESTERN AUSTRALIA -v- DRN [2025] WASCA 45 (1 April 2025)

Sexual penetration of C, a child of over 13 years and under 16 years, by penetrating her vagina with his finger

Sexual penetration of S, a child under 13 years, by penetrating her vagina with his finger

1. The respondent was made eligible for parole and the sentences were backdated to 19 September 2024 to take account of time spent in custody on remand.
2. The State now appeals against these sentences on three grounds. Grounds 1 and 2 contend that the individual sentences for counts 3 and 4 respectively were manifestly inadequate. Ground 3 contends that the total effective sentence infringes the first limb of the totality principle. On 5 December 2024, leave to appeal was granted on grounds 2 and 3 and the application for leave to appeal on ground 1 was referred to the hearing of the appeal.
3. For the following reasons, these grounds are established. The respondent should be resentenced to a total effective sentence of 5 years 9 months' imprisonment as follows:

1 year 9 months (reduced from 2 years 10 months for totality)

1. The trial judge made the following findings as to the circumstances of the offending.
2. The respondent and K were in a relationship from 2005 until December 2013. They had three children together, including S who was born in March 2010.

1. On an evening between April and September 2010, the respondent and K went to a housewarming party for the respondent's sister in a suburb of a regional centre, south of Perth. The respondent's sister's house was about a five‑minute walk away from the respondent's house. H, R and C came to the respondent's house in the afternoon to babysit S and her brother. H and R were K's biological sisters aged 14 years[1] and 12 - 13 years respectively. C was a friend of H and R who was aged 13 years.
2. A double mattress had been set up in the lounge room of the respondent's house for two of the three complainants to sleep on, with the other complainant to sleep on the couch next to the mattress. Fairly late that evening, the respondent left the housewarming party and went back to his house to get cigarettes. The three complainants were all asleep in the living area of the respondent's house when he returned. C was on the couch and R and H were on the double mattress.
3. The trial judge made the following finding as to premeditation:[2]

I'm unable to make a finding that you formed any intention when you left the housewarming party that you were going to sexually offend against any of the girls. I'm satisfied that, once you got into the house, you must have then formed the intention to do so. So, in that sense, I am satisfied that the offending was opportunistic.

1. H heard the back sliding door open as the respondent entered the house. H fell back to sleep but awoke shortly after. When H awoke, the respondent was kneeling beside her. The respondent then tried to put his hands down H's pants. He put his hands at the waistline and tried to put his fingers in the waistline (count 1). H rolled onto her side, so that her back was facing the respondent, and this made the respondent's hands move away from her.
2. The respondent then moved around to R's side of the mattress. R awoke after feeling movement under her blanket. She felt the respondent touching her vaginal area over the top of her pyjamas with his hand (count 2). R pushed the respondent's hand away.
3. The respondent then got up and moved to the couch where C was sleeping. C woke to the feeling of the respondent's hand in her shorts. The respondent inserted his fingers into C's vagina. When she awoke, the respondent was moving them in and out (count 3). C pretended to be asleep and waited for it to be over. She was scared. The respondent whispered words to the effect, 'Does that feel good?', or, 'Do you like that?'.[3]
4. At that point, H got up and yelled at the respondent to leave. The respondent eventually left the house through the back sliding door and went back to the party.

1. The respondent and K separated in December 2013. S lived with K after the breakup. S started going on some visits and then longer visits to the respondent's house as she got older. In about August or September 2021, when she was 11 years old, S went to visit the respondent for a few weeks.
2. On the night of the offence, the respondent and S were sharing a bed together. S was asleep in the bed. It was late at night and dark. The respondent got into the bed with S. S was wearing underwear, long pants and a t‑shirt. The respondent leant over S and touched S on the vagina, underneath her clothing and underwear. The respondent rubbed S's clitoris with his fingers (count 4). S slowly pushed the respondent's hand away so that he was not touching her anymore. The respondent rolled back over. The respondent was awake when he sexually penetrated S's vagina and knew what he was doing.
3. The trial judge found that the respondent had persisted using S in a sexual way by touching her thighs. It was this touching of the thighs which led S to make the complaint. The trial judge said:[4]

So certainly, your offending on the night in relation to count 4, in terms of your sexual attitude towards [S], was not isolated to that night[.]

1. S and C both provided victim impact statements. The trial judge found that S felt betrayed by the respondent, and she has lost motivation in her life. It will take S a long time to come to terms with what the respondent has done to her. C is older, but nevertheless still traumatised, and that trauma has filtered down to the way in which she cares for her son. The respondent's offending affected C's schooling and continues to affect her married life and life as a mother.
2. Each of the complainants, when giving evidence, were clearly distressed at what had occurred. Each must have felt confusion and fear on the night of the offences against them. In the case of H, R and C, this confusion must have been exacerbated when nothing was done about the complaints that were made at the time of the offending against them.

1. The respondent was 35 years old at the time of sentencing. He was around 21 years old when he committed the offences charged in counts 1 - 3 and around 31 years old when he committed the offence charged in count 4. He was born in a regional city and moved around as a child. The respondent was educated to year 9 of high school and had worked in a variety of roles until his incarceration. He was working in the prison kitchen at the time of sentencing.
2. The respondent had the primary care of the youngest son of K and the respondent since the son was 3 years old. This son was in year 11 of high school prior to the respondent's incarceration.
3. The respondent had not shown any remorse for his actions.
4. The respondent has a criminal record, with his last offending being in 2013 (which was after the offending charged in counts 1 ‑ 3). The trial judge noted that the offending in 2013 (breach of police order, criminal damage and threats to injure) may have happened around the time of his marriage break-up. Her Honour said that she was prepared to accept that these offences may have been 'anomalies' in the respondent's behaviour.[5] Before then, the respondent had convictions for traffic offences and one conviction for a burglary offence and a stealing offence for which he received spent convictions. The respondent had not been convicted of offences like the charged offences in the past and had not previously received a custodial sentence.
5. The respondent had references from persons who supported him despite his offending and would have the support of family members on his release.

1. The trial judge identified the following aggravating factors in relation to the respondent's offending:[6]
   1. Each complainant was particularly vulnerable to the respondent because they were family or a friend of the family. The complainants and their parents were entitled to trust that the complainants would be safe in the respondent's house. This trust made them less guarded and therefore more vulnerable. Each of the offences occurred at night when the complainants were asleep. There were no other adults in the vicinity to protect the complainants, and they were young. None of the complainants, including S, had any chance of protecting themselves from the respondent. The complainants were effectively trapped and defenceless.
   2. The offending in 2010 was persistent and involved three complainants. The respondent was not deterred by H rolling over and effectively pushing him off. H had to see and hear what the respondent was doing to C and to her younger sister, R. H, a child herself, had to be the one who told the respondent to leave, and to protect the other two complainants. It was an aggravating factor that all three complainants were present when each of them was being offended against.
   3. The incident affected the relationship between C and H. H gave evidence that her family effectively talked her out of doing anything about the touching of her, by reference to what they said was C's reputation. The respondent's actions made C and H fall out, and H felt like C had ruined things for her family.
   4. The respondent's offending had wide repercussions in its effect on the complainants.
   5. Each of the offences involved a gross breach of trust of the complainants and their carers.
2. The trial judge found that there 'really is nothing that mitigates the offending itself'.[7] The respondent had not pleaded guilty and was not remorseful for the offending.
3. In relation to the respondent's age at the time of the offences charged in counts 1 ‑ 3, the trial judge observed:[8]

You therefore were young still, and in most circumstances you would have had the benefit of youth in the sentencing exercise for those offences. I accept that that means that you may have then acted impulsively, and with less understanding of the seriousness of this type of behaviour, and the serious potential consequences of it. I also accept that that means that you were probably less able to exercise mature reflection and proper judgement on that day.

However, you then committed a similar offence on your daughter about 10 years later. Therefore, any suggestion that your youth during the first offences could give some hope to rehabilitation is diminished. However, given your age at the time, I may still give you the benefit of youth for those offences in this sentencing exercise, but certainly youth is not as significant a factor as it would have been had you not continued to offend.

1. The trial judge said that the offending against H and R could be regarded as being 'at the lower end of seriousness for such offending'.[9] However, the sexual penetration offences committed against C and S were 'serious examples of such offending'.[10] The trial judge then made the following observations:[11]

I accept, though, that there was no particular deviance, force, or perversion in any of the offences, other than, of course, you offended against young teenage girls when they were effectively defenceless. Your offending was, I acknowledge, itself very brief in relation to each girl, although each of them stopped you by rolling away from you; you did not desist of your own volition.

The relative ages of you and the girls was significant. You were a partnered adult man with young children, and they were just young teenage girls. By virtue of your familial relationships with [R, H and S], and the relationship between [C and H], you were in a position of trust and authority over them, thus better enabling the commission of the offences. You took advantage of each of the situations to benefit yourself for your own sexual gratification.

In relation to [S], while you did not repeat the offence itself, as I said, you touched her on the thigh such that she felt uncomfortable, and I'm satisfied that the jury must have found that by doing that, you, to some extent, were grooming her, and the touching of her was not an isolated incident.

As I have said, I'm not satisfied that you have shown any remorse for your actions. Accordingly, it's my view that while you do have pro-social factors - so factors that will support you once you're released - your risk of reoffending must be seen as high. You preyed on the girls when they were asleep, defenceless and without other adult protection. You did not just stop at one; you kept going to each girl in counts 1 to 3, and then again, 10 years later, with [S].

The impact of the commission of the offences upon each of the girls has been significant. As I said, I have the victim impact statements, but I saw each of them give evidence and heard of the fallout from your offending. Friendships were broken, your daughter is without her father, and her mother has not been able to co‑parent with you. It seems that [C] may have had a fight with her boyfriend over the incident, given what each of them said about when she spoke to him after your offending on her.

Some who complained had their complaints ignored, no doubt harming the family trust and dynamics. Young people must be protected from such behaviour. I note, though, that you do not have a relevant prior history on your record, although, as I said, given the offending in the indictment was 10 years apart, it is the case that your offending has been over a protracted amount of time.

1. The trial judge concluded that sentences of immediate imprisonment were the only appropriate sentences and imposed the sentences referred to at [2] above. Her Honour did not reduce any of the individual sentences for totality.

1. As was noted in Kabambi v The State of Western Australia,[12] the general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:

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

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

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

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

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

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

1. The general sentencing considerations for sexual offences against children are also well established. They were summarised in the following terms in OTR v The State of Western Australia [No 2]:[13]

The authorities establish the following propositions in relation to sentencing for sexual offending against children:

1. There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.
2. The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.
3. Matters personal to an offender will ordinarily carry less weight.
4. In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.

It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra‑familial sexual abuse.

Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims. Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion. (citations omitted)

1. It is also established that the provisions of the Criminal Code which create offences of which sexual penetration is an element do not create a 'hierarchy' of sexual penetration. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. While patterns of sentencing for unlawful sexual penetration reveal that offences involving digital penetration are often less serious, and so attract lower sentences, than offences involving penile penetration, that is not always so. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[14]

Ground 2: whether sentence for count 4 was manifestly inadequate

1. It is convenient to focus on ground 2, which contends that the individual sentence of 2 years 2 months' immediate imprisonment imposed for count 4 was manifestly inadequate. In our view, the individual sentence imposed for count 4 clearly failed to reflect the criminality of that offence and was unreasonable or plainly unjust. Ground 2 is established.
2. The maximum penalty for the offence of sexual penetration of a child under the age of 13 years is 20 years' imprisonment. The sentence imposed on count 4 was only about 10% of the maximum penalty. The offence was aggravated by the fact that the complainant was the respondent's 11‑year‑old biological daughter. He offended against her while she was sleeping. The offending involved a serious breach of trust and had the significant long‑term adverse effects on the complainant which would be expected from offending of that kind. There were no mitigating circumstances for that offence: the respondent did not plead guilty, was not remorseful, was aged in his thirties at the time of the offending and was not of prior good character. The respondent was assessed by the trial judge as being at high risk of re‑offending. The length of the individual sentence for count 4 stands outside the range of sentences customarily imposed for sexual penetration of a child under the age of 13 years after trial.[15]
3. In seeking to resist the appeal, written submissions filed by counsel for the respondent sought to contend that there was no 'element of abuse' involved in the offending other than the age disparity between the offender and victims.[16]
4. The concept of an 'element of abuse' has been employed in a context of considering sentences where a child consents as a matter of fact to sexual activity. In Deering v The State of Western Australia,[17] Wheeler JA referred to comments by the sentencing judge in that case that the fact the child may have consented to sexual activity was irrelevant. Her Honour said:[18]

These observations invite attention to the legislative purpose of the prohibition of sexual penetration of a child between the ages of 13 and 16. It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. To that extent, the legislation is intended to protect young people 'from themselves'.

However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. I set out some of the legislative background in Marris v The Queen [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney General, that '... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability.

1. The concept of an 'element of abuse' has no application to a situation, such as the present, where there is no factual consent to sexual activity. The respondent's conduct of sexually penetrating his 11‑year‑old daughter as she slept cannot be regarded as anything other than entirely abusive. The same can be said of the respondent's offences against H, R and C which involved sexual conduct without any factual consent while the complainants slept.
2. In oral submissions, counsel for the respondent indicated that the references in the written submissions to there being no 'element of abuse' were intended to refer to the offences all being opportunistic and very brief which, as the trial judge found in the first paragraph quoted at [28] above, involved 'no particular deviance, force, or perversion in any of the offences, other than, of course, [the respondent] offended against young teenage girls when they were effectively defenceless'. Understood in that way the submission may be regarded as less objectionable, but in the circumstances of the present case does not identify any mitigating factor which should be given any significant weight.
3. Submissions by counsel for the respondent emphasised two decisions in which he contends that sentences broadly comparable were imposed or upheld on appeal. In 'C' v The State of Western Australia,[19] the offender was resentenced by this court to a total effective sentence of 4 years' immediate imprisonment, which included a sentence of 2 years 6 months' imprisonment for a digital penetration offence. It is unnecessary to consider this case in detail. It is a dated decision which appears to have been influenced by sentencing transitional provisions, and the individual sentence of 2 years 6 months' imprisonment was said to be lower than it might otherwise have been for totality reasons.[20] The second case which counsel emphasised, Stephenson v The Queen,[21] is an even older pre‑transitional provision case which involved a different kind of offending.
4. Over the past 20 years, sentences for child sexual offending have progressively firmed up as society and the courts have gained an increased appreciation of the prevalence of this kind of offending and the dreadful life‑altering consequences its victims commonly suffer. The temptation for counsel representing an offender to cite older authorities is understandable but should be resisted. There is very little utility in referring to pre‑transitional provision cases, or cases influenced by the transitional provisions, in seeking to establish current common sentencing practices.
5. In our view, having regard to all of the circumstances of this case and all relevant sentencing principles, it was not reasonably open to the trial judge to view an individual sentence of only 2 years 2 months' immediate imprisonment as commensurate with the offence charged in count 4 of the indictment. That individual sentence was manifestly inadequate. Ground 2 is established.

Ground 1: whether sentence for count 3 was manifestly inadequate

1. For similar reasons, we are satisfied that the individual sentence of 1 year 8 months' immediate imprisonment imposed for the sexual penetration offence alleged in count 3 of the indictment was manifestly inadequate.
2. In reaching that conclusion, we note the lower maximum penalty of 14 years' imprisonment provided for the offence charged in count 3, and the mitigating factor of the respondent's young age at the time of the commission of that offence. We also note the lack of any family relationship between the respondent and C, the complainant in relation to count 3.
3. However, it remains the case that the sexual penetration charged in count 3 was a serious offence, involving predatory behaviour by the respondent. It involved a serious breach of the trust placed in the respondent by C and her carers that she would be safe staying overnight at the respondent's house. C was asleep and in a vulnerable position when the respondent decided to offend against her. The offending continued until H intervened. It has had a serious impact upon C's life. The only significant mitigating factor was the respondent's age at the time of committing the offence.
4. Having regard to all of the circumstances of the case and all relevant sentencing principles, the individual sentence of 1 year 8 months' immediate imprisonment for count 3 (which represents about 12% of the maximum penalty) was unreasonable or plainly unjust.
5. As will be seen below, there is little difference between the individual sentence we would impose on count 3 in resentencing after a reduction for totality and the individual sentence which the trial judge imposed for count 3. However, as noted above, the trial judge did not reduce any of the individual sentences which her Honour imposed for totality. The application of the totality principle does not provide an explanation for the individual sentence imposed by the trial judge for count 3. The difference between:
   1. the sentence we would impose for count 3 before making a reduction for totality; and
   2. the sentence imposed by the trial judge for count 3 without any reduction for totality,

supports an inference of error in the exercise of the sentencing discretion from an outcome which is unreasonable or plainly unjust.[22]

1. For the above reasons, ground 1 is established.

1. We are also satisfied that the total effective sentence of 3 years 10 months' immediate imprisonment fails to reflect 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 respondent personally. Indeed, as will be apparent from the sentence which we would impose on resentencing for count 4, the total effective sentence imposed by the trial judge fails to reflect the criminality of that offence considered in isolation. Further, some accumulation of the sentences is required to reflect the entirely separate offending charged in counts 1 ‑ 3 and the impact of that offending on the three victims. For the above reasons, ground 3 is established.

1. This court has a residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established. A respondent to a State appeal against sentence does not bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negative any reason why the residual discretion of this court not to interfere should be exercised.[23]
2. 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 appeals. 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.[24]
3. In our view, intervention in the present case is necessary to maintain adequate standards of sentencing. Appellable error has been clearly established, and the public interest in maintaining appropriate sentencing standards for extremely serious offending of the kind that occurred in the present case counts strongly against the exercise of the residual discretion in the respondent's favour.
4. In the present case, the sentencing outcome for serious offending of the kind in question requires correction in order to maintain public confidence in the proper administration of criminal justice. The purpose of the State appeal could not properly be achieved merely by declaring the sentence for count 1 and the total effective sentence to be inadequate, but without altering them.[25]
5. In oral submissions, counsel for the respondent points to steps taken by the respondent since sentencing towards rehabilitation as supporting a refusal to exercise the residual discretion in the State's favour. Counsel says that the respondent has committed himself to work, to better his physical and mental health, to completing available treatment programs in prison, and to future work with his father in the family business.
6. In all of the circumstances of this case, we do not consider that these factors have the significance for the exercise of the residual discretion which counsel for the respondent seeks to attach to them. While the insight which the appellant has gained is a positive factor to be taken into account in resentencing the appellant, he has taken only very limited concrete steps towards the achievement of rehabilitation. This is not a case where allowing the State's appeal would interrupt or reverse progress towards rehabilitation which has been made. Further, even if some negative impact on progress towards rehabilitation would result from allowing the appeal, it must be recalled that rehabilitation does not displace other sentencing considerations at the residual discretion stage.[26] Having regard to all of the above matters, this is an appropriate case for the exercise of the residual discretion to allow the State's appeal against sentence.

1. This court has the material necessary to resentence the respondent.
2. By applications in an appeal dated 19 and 28 February 2025, the respondent seeks leave to adduce additional evidence in the appeal. The general effect of that evidence is that, since his sentencing, the respondent has gained an increased awareness of the negative impacts of his excessive consumption of alcohol and has been working in the Greenough prison kitchen. Although the trial judge did not make any finding as to the contribution which excessive alcohol consumption may have made to the offending, we will take account of the respondent's increased awareness of the harmful impacts as a step towards rehabilitation. The mitigating effects of this are limited by the fact that the respondent does not give evidence of having yet undertaken any courses. Further, he has not expressed any clear acceptance of responsibility for the offending or any real appreciation of the harm which it has caused to the complainants. The current progress towards rehabilitation is not such as to significantly impact on the trial judge's assessment of the risk of the appellant re‑offending. However, it is to the respondent's credit that he expresses a desire to do rehabilitation courses relating to alcohol use and sexual offending. We would receive this additional evidence in the appeal and have regard to the steps which the respondent has taken towards rehabilitation for the purposes of resentencing. We have also had regard to the additional events since the respondent swore his affidavit of 28 February 2025 of which counsel for the respondent advised the court in oral submissions.[27]
3. In our view, in all the circumstances a sentence of 4 years' immediate imprisonment is commensurate with the seriousness of the offence charged in count 4 of the indictment.
4. We regard a sentence of 2 years 10 months' immediate imprisonment to be commensurate with the offence charged in count 3 of the indictment. We would impose a lower individual sentence for the sexual penetration offence charged in count 3 than for count 4. This takes account of the difference in maximum penalties, the aggravating factor that the complainant in count 4 was the respondent's biological daughter and the mitigating factor of the respondent's young age when the offence charged in count 3 was committed.
5. The State does not complain about the individual sentences imposed in relation to counts 1 and 2 on the indictment. In the circumstances, we would not interfere with the individual sentences for those offences.
6. In our view, a total effective sentence of 5 years 9 months' imprisonment reflects the overall criminality involved in all of the charged offences, having regard to all of the circumstances including those personal to the respondent. We would arrive at that sentence by reducing the sentence we would otherwise impose for count 3 from 2 years 10 months' immediate imprisonment to 1 year 9 months' immediate imprisonment for totality and ordering that sentence to be served cumulatively upon the sentence for count 4. The sentences for counts 1 and 2 should be served concurrently with each other and the sentence for count 4.

1. For the above reasons, the following orders should be made:

1. Leave to appeal is granted on ground 1. 2. The respondent's applications in an appeal dated 19 February 2025 and 28 February 2025, seeking leave to adduce additional evidence in the appeal, are granted. 3. The appeal is allowed. 4. The individual sentence of 1 year 8 months' immediate imprisonment for count 3 on indictment GER/38/2023 is set aside and a sentence of 1 year 9 months' immediate imprisonment is substituted. 5. The individual sentence of 2 years 2 months' immediate imprisonment for count 4 on indictment GER/38/2023 is set aside and a sentence of 4 years' immediate imprisonment is substituted. 6. Orders as to accumulation and concurrency of the sentences on indictment GER/38/2023 are set aside and the following orders are substituted:

(a) The sentences for count 1 and count 2 are to be served concurrently with the sentence for count 4 and each other.
>
> (b) The sentence for count 3 is to be served cumulatively upon the sentence for count 4.
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> (c) The total effective sentence is 5 years 9 months' imprisonment.

1. The respondent remains eligible for parole. 2. The sentences are taken to have taken effect on 19 September 2024.

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

[1] The trial judge referred to H being 13 years old at this time: trial ts 358. The State opened on the basis that H was 14 years old at the date of the offence at trial ts 121. H gave evidence that she was born in March 1996 at trial ts 132. This would have made her 14 years old at the date of the alleged offence. It would appear that the trial judge's reference to H being 13 years old was a slip of the tongue.

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

[13] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] - [57].

[14] YNT v The State of Western Australia [2021] WASCA 89 [207].

[15] See the recent review in The State of Western Australia v MGA [2024] WASCA 108 [81] - [93].

[16] Respondent's submissions, par 11 (White AB 31).

[17] Deering v The State of Western Australia [2007] WASCA 212 [16].

[19] 'C' v The State of Western Australia [2006] WASCA 261.

[21] Stephenson v The Queen [2001] WASCA 98.

[22] As to which, see Allen v The State of Western Australia [2017] WASCA 203 [66].

[23] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34].

[24] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1]; CMB [55].

[25] See Director of Public Prosecutions (Cth) v Aqbal Omar [2019] VSCA 188 [24]; Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311 [79] - [80]; Director of Public Prosecutions (Vic) v White [2020] VSCA 37; (2020) 60 VR 292 [82].

[26] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198 [45] (McLure P, Buss & Mazza JJA agreeing); The State of Western Australia v Syred [2020] WASCA 185 [172] - [175] (Vaughan JA, Buss P & Mitchell JA agreeing).