THE STATE OF WESTERN AUSTRALIA -v- THN [2023] WASCA 18 (2 February 2023)

1. The State now appeals against these sentences on the grounds that:
   1. the individual sentence of 2 years' immediate imprisonment imposed for the sexual penetration offence charged in count 4 was manifestly inadequate; and
   2. the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle.

Leave to appeal has been granted on both these grounds.

1. For the following reasons, in our view both grounds of appeal are established. The appeal should be allowed, and the respondent resentenced to 4 years' immediate imprisonment on count 4 and a total effective sentence of 5 years 6 months' imprisonment.

1. The trial judge made the following factual findings as to the circumstances of the respondent's offending,[1] none of which are challenged on appeal.

1. The two complainants are sisters who are the children of C. A, the complainant in respect of counts 2, 3 and 4 on the indictment, was aged either 10 or 11 years at the time of the offending. B, the complainant in respect of counts 1 and 5, was aged either 5 or 6 years at the time of the offending.
2. The respondent was aged between 40 and 42 years at the time of the offending. He and C met when they were both 14 years old in high school. They shared a very close friendship for almost 30 years. C regarded the respondent as akin to a brother. The respondent held an entrusted and significant role in C's life and the lives of her children. The complainants called the respondent 'uncle'.
3. In late 2016, C separated from her husband, who was the complainants' biological father, and he moved out of the family home. Around that time, the respondent began staying most weekends at C's home, spending time with her and her children including A and B. On those weekends, the complainants would spend some of their time with their father at his residence. They would leave to attend their father's home at approximately 10.00 am on Saturday morning and return home at approximately 6.00 pm on the Sunday evening. The respondent would therefore spend most Friday evenings and Saturday mornings with the complainants. He would also see them for a few hours on Sunday evening before they retired for bed.

1. The offence the subject of count 1 occurred on an unknown date between 31 December 2016 and 27 August 2018, when B was either in pre-primary or year one of school and was either 5 or 6 years old. B was alone on her bed at her mother's home watching YouTube on her iPad. The respondent was staying in her home that weekend and came into her bedroom. B told the respondent to leave the room because she wanted to be on her own. The respondent ignored her and stayed.
2. The respondent then put his fingers inside B's underwear and inside the cheeks of her bottom. He did not insert his fingers inside B's anus but he was touching it (count 1).

1. The offending the subject of counts 2 and 3 occurred on an unknown date either in late 2016 or early 2017, when A was 10 years old.
2. A was in her bedroom on her bed, lying on her stomach playing on her iPad. The respondent, who was staying in her home that weekend, came into A's bedroom. The respondent sat down on the floor of A's bedroom and watched her play on her iPad for approximately 20 minutes.
3. The respondent then started to rub A's back with his finger over the top of her clothing. He scooted around A's bottom and then rubbed her vagina with his finger back and forth over the top of her clothing (count 2).
4. The following day A woke up and came into the lounge room. The respondent had been sleeping on the couch. A sat next to the respondent and was watching her iPad. It was still very early in the morning and A's other family members were home but were asleep. The respondent rubbed A's upper inner thigh over her clothes with his hands in a circular motion (count 3). A left the lounge room and went to her bedroom.

1. At approximately 6.00 pm on Sunday, 26 August 2018, A and B returned from visiting their father's home. The respondent was present when they came home. A wanted to play with slime in the garage. The respondent took A into the garage to unlock the slime and supervise her. At the time, A was wearing a 'onesie' and had on a singlet and underwear. She was playing with the slime on a small portable table.
2. The respondent asked A to come over to him. After a while, she did so. The respondent then zipped down her onesie, put his hand inside and pulled A's underwear forward. The respondent then rubbed A's bare vagina with his finger and said, 'We are getting hair under there now'. As the respondent said this, he rubbed A's vagina in the middle and penetrated the outer lips of her vagina (count 4).
3. The respondent then said to A, 'Bad thing that we can't be boyfriend/girlfriend'. She responded by saying, 'Well, I'm too young and you're too old'. The respondent then said, 'Yeah, funny that, isn't it'.
4. The respondent then said to A, 'Next weekend I'm going to go in the hole'. He told A that if she did not let him then she would not be allowed to play with the slime. A then said to the respondent, 'Well, I'm telling mum then'. The respondent told A to put the slime away and appeared to be angry with her, so she went to her bedroom.

1. Count 5 also took place on the evening of Sunday, 26 August 2018. After leaving the garage, the respondent at some point entered C's master bedroom and found B lying on the bed in her pyjamas watching videos on her iPad. After he came into the bedroom, the respondent shut the door and lay down on the bed next to B. He then put his fingers inside B's underwear and rubbed his fingers up and down on the top of her vagina (count 5).

1. On 27 August 2018, A and B complained to C about what the respondent had been doing to them. C reported the matter immediately to police.

1. The respondent had on other uncharged occasions put his fingers into the back and front of B's underwear. After her father moved out of the family home, the respondent regularly touched A's vagina, almost every weekend when he stayed at C's home. The counts on the indictment do not represent the totality of the respondent's sexual offending against A and B, and do not represent isolated incidents.

1. A victim impact statement prepared by C described the effect of the respondent's offending on A and B. Both complainants were having trouble sleeping. A was struggling with anxiety, had been diagnosed with post-traumatic stress disorder, had engaged in self-harming behaviour and had been avoiding school. Both complainants found the trial process to be stressful and were engaged in counselling.[2]

1. The trial judge made the following unchallenged findings as to the respondent's personal circumstances.[3]
2. The respondent was 45 years old at the date of sentence and was aged between 40 and 42 years old at the time of the offending.
3. The respondent was born in Western Australia and brought up in a loving and supportive family environment. He shared a close relationship with siblings and other family members. He was living with, and caring for, his mother who had various health issues.
4. The respondent, who was diagnosed with ADHD, left high school in the first few weeks of year 10. He had since engaged in continuous employment in various vocations, including in fabrication work, brick making and packing, in abattoirs, in the bolt-making industry, labour hire and in a herbicide role. He lost his employment in the herbicide role after being convicted of the current offences.
5. The respondent had various health issues, including polycystic kidney disease which causes him to suffer cysts on his kidneys, will eventually lead to kidney failure and has already led to four heart attacks. After the last heart attack, he underwent surgery for the insertion of a stent.
6. The respondent had a 19-year relationship with his ex-wife. Their marriage ended when the respondent was 38 years old. They have three daughters, who were aged between 20 and 23 years at the date of sentence. The respondent maintained a positive relationship with his ex-wife and three daughters, who all accept his stance of innocence in relation to the charges.
7. Following his divorce, the respondent commenced a brief relationship with another woman who he lived with for a short period of time. That relationship broke down, which had a very negative impact on the respondent. He suffered depression and was suicidal afterwards, attempting suicide by overdose. After a brief relationship in 2013 and 2014, he was advised that the woman had a sexually transmitted disease. At about the time of the offending, the respondent believed that he may have contracted the disease and abstained from sexual behaviour so as not to pass it on. Subsequent testing indicated that the respondent had not in fact contracted the disease.
8. The respondent engaged in alcohol abuse as a teenager but, sporadic binge drinking aside, had largely abstained from drinking since he suffered his first heart attack at the age of 21 years. He admitted regular cannabis use from the age of 15 and daily cannabis use from the age of 17. He had used various illicit drugs recreationally in his late teenage years.
9. A psychologist's report expressed the following views:
   1. The offending occurred when the respondent was single, believed that he had a contagious sexually transmitted disease and was suffering erectile problems. He did not have a sexual partner and therefore had unmet sexual needs. He continued to have a substance misuse problem and unaddressed depression and anxiety.
   2. The respondent had access and opportunity to offend, given that he was a trusted family figure. It is possible that he believed that his sexual offences would go undetected. It is likely that he offended due to sexual arousal and a desire for sexual contact and gratification.
   3. The respondent may have a sexual interest in and attraction to the complainants and female children.
   4. The respondent may have used sexual behaviour and the offending as a distraction from his problems at the time.
   5. The respondent's offending is indicative of problems with decision-making, consequential thinking and impulse control.
   6. The respondent's risk of recidivism was in the average risk category.
10. The respondent continued to deny the offending and was not remorseful.
11. The respondent had a prior criminal record which meant that he could not be sentenced as a person of prior good character, although there was no history of sex offending, he had never been sentenced to a term of imprisonment and almost all of the convictions occurred many years ago.
12. The court received nine character references from family and friends, which refer to the respondent as an honest, caring and supportive person who treats others with respect and kindness. The references spoke of the charges as being extremely out of character for the respondent.

1. The trial judge identified the following aggravating features of the respondent's offending:[4]
   1. The complainants were vulnerable young children.
   2. The respondent was in a position of trust and authority over the complainants due to his close family relationship with them. He held a privileged and entrusted role in their lives. He ought to have been a source of love, support, guidance and, above all, safety for them. The offending therefore constitutes a gross and serious breach of the respondent's position of trust.
   3. There was a significant age difference and power disparity between the respondent and each of the complainants. There was a 30-year age difference between the respondent and A and a 35-year age difference between the respondent and B.
   4. There was an element of psychological coercion and grooming of the complainants before the respondent offended against them.
   5. The offending was persistent and sustained over time and included multiple and distinct offending behaviour which was only brought to a conclusion when the complainants finally had the courage to tell C about the abuse.
   6. The respondent exploited the vulnerability of the immature complainants for his own selfish sexual gratification.
   7. The offences occurred in the complainants' own home which ought to have been a safe sanctuary for them. Some of the offending occurred in their own bedrooms.
   8. There has been a devastating psychological impact on the complainants due to the respondent's sexual abuse of them.
2. The trial judge identified the following mitigating factors:[5]
   1. The respondent's mental and physical health issues (which can be accommodated within the custodial setting); and
   2. the respondent's positive personal antecedents.
3. The trial judge recognised that sentencing considerations for these types of offences focus on the need to protect young, defenceless children from abuse at the hands of those who are in a position of trust and authority over them and who are in a position to be able to conceal their offending. The judge also recognised that the primary sentencing considerations are appropriate punishment, public denunciation and particularly both personal and general deterrence, having regard to the paramount need to protect vulnerable children from exploitation and abuse.[6]
4. The trial judge then imposed the sentences noted in the table at [3] above. In the course of doing so, the trial judge accepted defence counsel's concession that a term of immediate imprisonment was the only appropriate sentence. In applying the totality principle, the judge obs[7]rved that:7

Relevant to my consideration of totality is the fact that two victims were the subject of your offending and the offending occurred over a number of different occasions. So in that context some accumulation is necessary. I have taken into account all relevant factors in considering the principle of totality and in my opinion the total criminality of the offending warrants a total effective sentence of three years and six months.

1. The grounds of appeal assert inferred, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[8]

(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. We begin by considering whether the individual sentence of 2 years' immediate imprisonment imposed in respect of the sexual penetration charge in count 4 of the indictment was manifestly inadequate.

1. Section 320(2) of the Code provides that the maximum penalty for sexually penetrating a child under the age of 13 years is imprisonment for 20 years.

1. As Buss P (Quinlan CJ and Mitchell JA agreeing) reaffirmed in The State of Western Australia v AHD:[9]

The primary sentencing considerations for [sexual offences against children] are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children.

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.

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. (citations omitted)

1. It is also established that the provisions of the 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.[10]
2. The parties have referred to only three cases which are said to have some features comparable to the present: YNT, KAT v The State of Western Australia,[11] and UGN v The State of Western Australia.[12] There is limited assistance to be obtained from such a limited number of cases, each of which have some similar and some distinguishing features.

1. The trial judge properly identified the significant aggravating features of the offending in this case. The offending charged in count 4 was not isolated, but rather was part of (albeit an escalation of) a persistent course of conduct. It involved a gross abuse of the trust which had been placed in the respondent. The offending the subject of count 4 was accompanied by a threat of more serious offending to follow and a threat of punishment of a child if she did not comply (in the form of a denial of a desired play activity). The offending occurred in A's home where she was entitled to feel safe and protected. The offending had a very serious psychological impact on A. A was a very young child, having turned 11 only a few months prior to the offending charged in count 4, and there was a 30-year age difference between the respondent and A.

1. There were very few mitigating factors in this case. Significantly, the respondent did not have the benefit of a plea of guilty. He continued to deny the offending. He was not remorseful and demonstrated no insight into or acceptance of responsibility for his offending. He did not suffer from any serious psychiatric illness which was causative of the offending. His mental and physical health issues were capable of being managed in a custodial setting. His prior criminal record, while it did not include any sex offending, meant that the respondent was not to be sentenced as a person of prior good character.
2. The respondent had positive character references, family support and a stable employment history. These were indicators of his prospects of rehabilitation. However, those positive indicators must be balanced against the respondent's denial of the offending, and the consequently limited kinds of sex offender programs which may be available to him in prison. Further, the significance of personal and general deterrence as sentencing considerations means that less weight is to be given to the respondent's personal circumstances.

1. In our view, having regard to:
   1. the serious nature of the offending charged in count 4 of the indictment;
   2. the limited mitigating factors; and
   3. all relevant sentencing principles,

the sentence of 2 years' immediate imprisonment imposed after trial for count 4 (which represents only 10% of the maximum penalty) is unreasonable or plainly unjust. Ground 1 of the State's appeal is established.

1. It is well established that where a sentencing judge's discretion has miscarried in respect of an individual sentence, the whole of the sentencing decision (including all of the other sentences) must be set aside and the offender resentenced.[13] It is therefore unnecessary to determine whether the total effective sentence of 3 years 6 months' immediate imprisonment is unreasonable or plainly unjust.
2. However, as will be seen below, in our view an individual sentence of 4 years' immediate imprisonment is commensurate with the seriousness of the offending charged in count 4 of the indictment. The total effective sentence imposed by the trial judge was less than the sentence which we would regard as commensurate with the seriousness of the offence charged in count 4. As the trial judge correctly recognised, the fact that the respondent offended on multiple separate occasions against two complainants requires some accumulation of the sentences in order for the total sentence to reflect the overall criminality involved in all of the offending. In our view, a total sentence of 3 years 6 months' immediate imprisonment does infringe the first limb of the totality principle.

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 negate any reason why the residual discretion of this court not to interfere should be exercised.[14]
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.[15]
3. In the present case, the respondent did not contend that this court should exercise its residual discretion to dismiss the appeal if the grounds of appeal were established.
4. 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.

1. This court has the necessary material to resentence the respondent.
2. The respondent's appeal counsel informed the court that, due to his continued denial of the offending and the limited availability of a 'deniers' program', the respondent had not participated in any sex offenders' treatment program at the date of the appeal hearing. The respondent commenced a sex offending deniers' program on 16 January 2023, and is due to complete that program on 26 April 2023. The respondent completed the 'Pathways' substance abuse program on 23 September 2022. The respondent has been a model prisoner whose excellent behaviour is reflected in his current placement in a minimum security facility. He has been completing a butcher's apprenticeship and working in a prison farm abattoir while in custody.
3. In our view, a sentence of 4 years' immediate imprisonment is commensurate with the seriousness of the sexual penetration offence charged in count 4 of the indictment.
4. As the State has not complained on appeal about any of the other individual sentences, we would not interfere with those sentences.
5. As we have noted, some degree of accumulation of the individual sentences is required to reflect the overall criminality involved in all of the offending considered as a whole. This is particularly so given the offending was against two victims and took place on multiple separate occasions. In our view, a total effective sentence of 5 years 6 months' imprisonment bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the respondent personally) and all relevant sentencing principles. We would give effect to that conclusion by ordering the sentence of 18 months' immediate imprisonment imposed for count 1 to be served cumulatively upon the new sentence of 4 years' immediate imprisonment to be imposed for count 4. All other sentences should be served concurrently with the sentence for count 4.
6. The respondent should remain eligible for parole. The sentence should be taken to have taken effect on 26 October 2021.

1. For the above reasons, we would make the following orders in this appeal:
   1. The appeal is allowed.
   2. The sentences imposed on District Court of Western Australia indictment 1466 of 2019 are set aside and the following sentences are substituted:

1. The sentence on count 1 shall be served cumulatively upon the sentence for count 4.
2. The sentences for counts 2, 3 and 5 shall be served concurrently with the sentence for count 4.
3. The new total effective sentence of 5 years 6 months' imprisonment is taken to have taken effect on 26 October 2021.
4. The respondent remains eligible for parole.

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

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

[9] The State of Western Australia v AHD [2021] WASCA 13 [56] - [58], applied in YNT v The State of Western Australia [2021] WASCA 89 [206].

[10] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68]. See also Musgrave v The State of Western Australia [2021] WASCA 67 and YNT [207].

[11] KAT v The State of Western Australia [2017] WASCA 11.

[12] UGN v The State of Western Australia [2021] WASCA 10.

[13] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9]; The State of Western Australia v Quartermaine [2021] WASCA 145 [85] and cases there cited.

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

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