THE STATE OF WESTERN AUSTRALIA -v- WRH [2025] WASCA 29 (25 February 2025)

The circumstances of the respondent's offending

1. At the sentencing hearing, the respondent's then counsel accepted the statement of material facts as presented by the State (ts 7). The sentencing judge formally incorporated those material facts in his sentencing remarks and otherwise drew on them in describing the offending (ts 25). What follows is based on the material facts as accepted on behalf of the respondent and incorporated into the sentencing remarks.
2. In December 2022 the respondent was 23 years old (having been born in November 1999). FNH was 14 years old (having been born in January 2008). The respondent and FNH had been known to each other, through mutual friends, for at least six months. The respondent and FNH each resided, separately, with their respective families. The respondent and FNH arranged to meet up and the respondent invited FNH to his house. At the respondent's house FNH was introduced to the respondent's family. The respondent then walked FNH upstairs to his bedroom.
3. The respondent and FNH lay down on a bed, moving under the covers, and the respondent began kissing FNH. This constitutes count 1. The respondent and FNH then undressed by removing the bottom half of their clothing. The respondent and FNH engaged in penile-vaginal sex in which FNH was a willing participant. This constitutes count 2. The respondent did not wear a condom. He ejaculated into FNH's vagina. FNH remained with the respondent for the rest of the night before going home the next day.
4. On 20 January 2023 it was discovered that FNH was pregnant. FNH said that the respondent was the father. On 16 March 2023 FNH participated in a child witness interview and disclosed the offending to the police. The respondent was arrested and charged. In September 2023 FNH gave birth to a female child. We will refer to the child as 'FNH's child'. FNH was 15 years old at the time of giving birth. Parentage testing of the placenta and umbilical cord confirmed that the respondent was the father of the baby.

1. The sentencing judge determined the respondent's personal circumstances having received a psychological report dated 8 July 2024 and a pre‑sentence report dated 11 July 2024.
2. The respondent was 23 years of age at the time of the offending and 25 years of age at the time of sentencing. The respondent is the youngest of three children born to his parents. The respondent's parents separated while he was an infant. The respondent has four younger step‑siblings from separate relationships that his parents had after they separated. As an infant the respondent was left by his mother and lived for a short time with his father. The respondent then lived with his paternal grandparents and other relatives until about 11 years of age. After that, for about three years, the respondent lived with his mother before moving to live with his grandmother in Perth and his grandfather in a Western Australian regional town (a different regional town from the regional town in which the offending occurred).
3. The respondent was exposed to drinking and violence during childhood, although - with one exception as to which there were only limited available details - no violence was directed towards the respondent.
4. The respondent described his life with his grandparents in positive terms. The respondent also described having a positive relationship with his mother. There was, however, only a limited relationship between the respondent and his father. The respondent had no significant issues during his school years beyond some learning difficulties. The respondent attended school to year 12 and graduated. After school the respondent worked in a variety of jobs. The respondent was in good physical health but had suffered from mental health issues without being diagnosed with a specific mental health condition. The respondent described having made several suicide attempts.
5. The respondent has three children. Two, aged five and three respectively at the time of sentencing, were with an ex‑partner (two years junior to the respondent) whom the respondent formed a relationship with when he was 19 years old. The respondent remained in contact with his ex‑partner regarding their children. The respondent's third child was the child born to FNH as a result of the offending. FNH's child was approximately 14 months old at the time of sentencing and lived with FNH.
6. The author of the pre-sentence report considered that the respondent had limited insight into the seriousness of his offending. In an interview with the author, the respondent denied having sex with FNH when she was 14, saying that she was 15 years old at the time. The author stated that the respondent continued the relationship as FNH provided the respondent with love and affection. In that respect, according to the author of the pre-sentence report, the respondent attributed blame to FNH for the offending as FNH had pursued the respondent.
7. The author of the psychological report recorded that the respondent claimed that he initially thought that FNH was at least 16 years old. However, when the respondent found out FNH's age on her 15th birthday, he had already had sexual intercourse with FNH. The respondent told the author that when he found out that FNH was pregnant with his child he decided to 'get back with her' to continue their relationship.
8. The author of the psychological report referred to one of the themes arising repeatedly during the interview being the respondent's feeling of abandonment and the respondent's attachment needs not being met. The author considered that the respondent's development was impacted adversely by parental abandonment and a degree of instability and transience during childhood. The respondent was said to have been hindered in his socioemotional development. The author characterised the respondent as a young man who experienced significant challenges in maintaining intimate relationships and navigating the challenges associated with them. It was considered highly likely that relating to an underaged, less mature, female could have allowed the respondent to feel psychologically safer, more confident and more in control than if the respondent was relating to a more mature adult female. Accordingly, the respondent's offending was seen to be driven by relational vulnerabilities.
9. The author of the psychological report also opined that the respondent's comments indicated a degree of sexual preoccupation, or an elevated sex drive, and the use of sexual activity as a coping strategy. This was seen to have contributed to poor decision making and a decreased capacity to manage desire for sexual gratification. The respondent presented with treatment needs in respect of poorly developed emotional and relationship management skills as well as interpersonal and relational vulnerabilities.
10. The respondent did not have any current substance abuse issues but had tried cannabis while a minor and lapsed into a two-month period of cannabis use when his second child was born.
11. The respondent had a minor prior criminal history having been convicted in 2018 of an offence of possession of stolen or unlawfully obtained property. That offending resulted in a small fine and a spent conviction. Accordingly, prior to the offending against FNH, the respondent had not been the subject of a term of immediate imprisonment.

1. After referring to the circumstances of the offending (ts 25) and the respondent's personal circumstances (ts 25 - 27), the primary judge mentioned the applicable sentencing principles and considerations in orthodox terms (ts 27 - 28; see also ts 31). The sentencing judge then identified four aggravating factors which, in the sentencing judge's view, meant that the offending was serious (ts 28 - 29):
   1. The 'reasonably significant' age difference between the respondent and FNH (the respondent was 23 and FNH was 14).
   2. The respondent engaged in unprotected sexual intercourse with FNH meaning that (a) there was a risk FNH would fall pregnant; and (b) there was a risk FNH would contract a sexually transmitted disease. The former risk materialised.
   3. The respondent knew that FNH was 14 or 15 years of age at the time of the offending but nevertheless offended against her. The sentencing judge considered that FNH was 'at a vulnerable age' and that the respondent took advantage of her.
   4. The respondent continued the relationship with FNH knowing that she was under the age of consent.
2. FNH's pregnancy and the nine-year age difference were said to be 'significant' aggravating factors (ts 29).
3. The sentencing judge accepted, however, that FNH was a 'willing participant' in the offending and that the respondent provided a 'degree of support' to FNH. The respondent lived with FNH and her family in the lead up to and for a short time following the birth of FNH's child. The sentencing judge considered that the respondent did not abandon FNH or the child after engaging in the offending (ts 28).
4. The sentencing judge characterised the offending in relation to count 1 to be in the 'low' range of seriousness. The offending the subject of count 2 was said to sit at the 'upper end' of the low range of seriousness for offending of its type (ts 28 - 29).
5. In terms of mitigating factors, the sentencing judge referred to (ts 29 ‑ 30):
   1. The respondent's plea of guilty - this was said to be an 'early' plea. But, in circumstances where the State's case was 'very strong', the sentencing judge determined to provide a s 9AA Sentencing Act 1995 (WA) discount of 15%.
   2. Youth - the sentencing judge considered that the interests of the community were best served by determined efforts to rehabilitate the respondent as a youthful offender.
   3. The respondent's upbringing - the sentencing judge considered the respondent's transient upbringing, and exposure to alcohol and violence, to be mitigatory.
   4. The respondent not abandoning FNH or FNH's child.
6. The sentencing judge considered that the respondent's prior criminal record meant that he was not of prior good character for the purpose of sentencing but that the circumstance that the respondent had a minor criminal record was otherwise a neutral factor (ts 30). In terms of reoffending, based on the psychological report, the sentencing judge considered that the respondent was not a low risk of future reoffending (ts 30). The sentencing judge also observed that with sexual offences against children matters personal to an offender are of less mitigatory weight than may otherwise be the case (ts 31).
7. The sentencing judge referred to a letter to the court from FNH in which, in substance, FNH objected to the respondent being the subject of a restraining order as FNH wanted the respondent to be part of FNH's child's life and possibly FNH's life. FNH said that the respondent had not hurt her and she did not feel that she needed to be protected from the respondent. In sentencing submissions, the respondent, by his then counsel, said that he wanted to be part of FNH's child's life because the respondent did not want the child to experience the abandonment that he had experienced as a child (ts 29).
8. Counsel for the respondent conceded, appropriately in the view of the sentencing judge, that a term of imprisonment was the only appropriate sentencing disposition (ts 31). The sentencing judge stated the individual sentences to be imposed and considered the issues of concurrency, cumulacy and totality (ts 31 - 32). Finally, looking afresh at the sentencing factors, the sentencing judge determined that it would not be appropriate to suspend the term of imprisonment in whole or in part given the seriousness of the offending (ts 32).

1. The State contended that the sentence of 2 years' immediate imprisonment for the offending the subject of ground 2 was manifestly inadequate.
2. In written submissions the State said that the sentence of 2 years' immediate imprisonment failed to properly reflect the significant aggravating features of the offending and the seriousness of the offence. The State said that the sentence was so erroneously low as to be unreasonable or plainly unjust. Having regard to the circumstances of the offending and the applicable sentencing principles, in the State's submission, the court should infer that the sentencing discretion had miscarried. The State relied in particular on the aggravating feature of the child victim becoming pregnant, carrying to term, and giving birth to FNH's child. The State said that this factor alone warranted a term of imprisonment well in excess of that imposed on the respondent.
3. In terms of comparable sentences, the States relied on The State of Western Australia v MGT[1] but acknowledged that MGT had some features that elevated the seriousness of the offending in that case above the present case. The State nevertheless said that those differentiating features did not justify the disparity between the term of 4 years and 9 months' immediate imprisonment imposed in MGT and the term of 2 years' immediate imprisonment imposed in the present case. The State also referred to numerous other cases, some of which will be mentioned below, but identified features of those cases which limited their usefulness as comparators.
4. The State said it was arguable whether the respondent's actions in 'not abandoning' the victim of his offending was a mitigating factor. The State suggested that it may merely constitute the absence of an aggravating factor. There was, however, no ground alleging express error in this respect.
5. The State said that, even if some mitigation was to be found in the 'non-abandonment', in this case it needed to be offset by two matters which reduced, to a significant extent, the mitigatory benefit of the respondent's support and non-abandonment of FNH. First, FNH was still under the age of 16 at the time that the respondent lived with FNH and her family. According to the State it was non-controversial that the respondent stayed with FNH in her bedroom with the knowledge of the adult who was responsible for the care of FNH. Second, the respondent was in breach of protective bail conditions at the time that he lived with FNH and her family. This, too, was said to be uncontroversial.
6. The State said that it was not aware of any factors that would enliven the exercise of the residual discretion and said further that this court's intervention was required to ensure the maintenance of proper sentencing standards.
7. The respondent contended that the sentence of 2 years' immediate imprisonment on count 2 was the result of the proper application of sentencing principles and it was open to the sentencing judge to be satisfied that the sentence was justified.
8. In support of this contention, counsel for the respondent submitted that error should not be inferred as:
   1. It was reasonably open to the sentencing judge to moderate the punishment to be accorded to the respondent by a merciful exercise of the sentencing discretion. Counsel for the respondent said that there are two special or exceptional circumstances which took the case out of the ordinary, namely, the wanted continuing relationship between the respondent and FNH and the birth of FNH's child.
   2. The sentencing judge properly recognised the mitigatory effect of the respondent's support for and non-abandonment of FNH and FNH's child. In this respect counsel for the respondent took issue with the State's submission as summarised at [35] above.
   3. The offending did not involve some of the aggravating features commonly seen in offending of this kind; for example, there was no coercion, force, threats, use of weapons or matters of that nature. Nor did the offending involve any abuse of trust. The offending was not accompanied by factors that would elevate it into the more serious category of offending of its type.
   4. The respondent was an immature young adult and the offending occurred in the context of a factually consenting relationship. In that respect, while the State submitted that the respondent's clear responsibility as a 23-year-old was not to engage in sexual activity with a child, knowing her to be under the age of legal consent, counsel for the respondent said that it was not as 'clear' to the respondent as it might have been to a 23-year-old of a more usual level of maturity for a man of that age. Counsel relied on the matters detailed in the psychological report as to the respondent's hindered socioemotional development, poorly developed relationship management skills and interpersonal and relational vulnerabilities. These matters emphasised why, in counsel for the respondent's submission, the respondent's youth was a significant mitigating factor.
   5. In the circumstances it could be inferred that the penalty was discounted to reflect the mitigating factor of the respondent having a minor criminal record and the offence being out of character. (To the extent, if any, that the sentencing judge did not find that the offending was out of character, the respondent raised this matter by way of notice of contention.)
   6. The respondent's minor criminal record, combined with his youth, meant that there was a lesser need for personal deterrence. These matters also indicated that efforts for rehabilitation stood a good prospect of being successful.
   7. The standards of sentencing customarily observed did not demonstrate that the sentence was manifestly inadequate - in that respect counsel for the respondent emphasised: (a) the similarities between the respondent's offending and that in GNR v The State of Western Australia;[2] and (b) the differences between the respondent's offending and that in MGT.
9. On the last matter, counsel for the respondent acknowledged the lesser age disparity in GNR. However, counsel said that any increased moral culpability due to the greater age disparity in the present case was tempered by the respondent having had a deprived upbringing and being immature for his age of 23. In any case, unlike GNR, the respondent received a term of immediate imprisonment. This, it was said, is a significant custodial sentence for a young adult with a limited prior criminal record.
10. The respondent also submitted that, there being no tariff for sentences in cases of sexual offending against children, there is a greater likelihood that a sentence might be imposed which is outside the usual range.
11. If implied error was established, the respondent relied on the residual discretion. The respondent accepted that the State has prosecuted the appeal promptly. Counsel for the respondent said, however, that it would be unjust for this court to intervene. First, the respondent had been eligible for release on parole since being sentenced. It was said, in this respect, that there was a risk that further imprisonment will corrupt rather than rehabilitate. Counsel for the respondent submitted that it was reasonable to assume that since 23 November 2023 - when the respondent was remanded in custody - some measure of rehabilitation and personal deterrence had been achieved. Counsel said that there is a public interest in a sentence designed to enhance rehabilitation not being disrupted.
12. Second, an increase in the 2-year term of immediate imprisonment would delay the formation of a relationship between the respondent and FNH's child (who counsel for the respondent described as the respondent's child) and the provision of support by the respondent to the child. This, too, was said not to be in the public interest.
13. Third, the respondent complained that the State's submissions on appeal were inconsistent with the State's position before the sentencing judge. On appeal the State said that the pregnancy and birth of FNH's child alone warranted a term of immediate imprisonment in excess of the 2 years' immediate imprisonment. Before the sentencing judge, while contending for a term of immediate imprisonment, the State conceded that the issue for his Honour would be whether that term of imprisonment could or should be suspended. That, it was said, conveyed a particular view about the overall gravity of the offending. The respondent said that, on appeal, the State should not be permitted to resile from its earlier concession.
14. By an application in an appeal dated 14 January 2025 the respondent sought leave to adduce additional evidence in the appeal. The additional evidence consisted of an affidavit of the respondent's counsel sworn 14 January 2025. The affidavit supported certain factual propositions raised by the respondent in relying on the residual discretion. It was otherwise potentially relevant to a re-sentencing. At the appeal hearing the State did not oppose the application to adduce additional evidence on the appeal. Accordingly, the court ordered that it would receive the affidavit sworn 14 January 2025 as evidence in the appeal.

1. This is the State's third appeal against sentence in the last six months in relation to an offence of sexual penetration of a child between 13 and 16 years of age, contrary to s 321(2) of the Code, where the offending resulted in the child victim becoming pregnant. The other two appeals are MGT (heard on 7 October 2024 and delivered on 4 November 2024) and The State of Western Australia v Dorsett[3] (heard on 7 October 2024 and delivered on 17 January 2025).
2. MGT and Dorsett each contain a comprehensive statement of the applicable sentencing principles for offending of the present kind. See MGT [52] - [59], [64]; Dorsett [11], [37], [44], [47]. So too MGT and Dorsett address the applicable principles for a State appeal against sentence alleging manifest inadequacy - doing so, in part, by incorporating what was said in The State of Western Australia v Hussian.[4] See MGT [50] - [51], [83] - [84]; Dorsett [36], [50]. Nothing would be gained by a third restatement of the applicable principles.
3. For present purposes it suffices to reproduce the following propositions from the reasons of the court in Dorsett [37]:
   1. The public policy and purpose underpinning s 321 of the Code is not only the protection of children from exploitation by sexual predators, but also the protection of children from themselves at an age when they may be unable to fully comprehend or cope with the social and emotional consequences of embarking upon sexual activity.
   2. The presence or absence of an element of 'abuse' is of considerable importance in sentencing for offences of the kind created by s 321.
   3. When a male offender commits a sexual offence against a female victim that involves unprotected penile/vaginal intercourse, the offender's failure to wear a condom is an aggravating factor because it exposes the victim to the risk of pregnancy and the risk of contracting a sexually transmissible infection or disease. The risk is realised if the victim actually becomes pregnant, or actually contracts a sexually transmissible disease or infection, or both.
   4. There is no tariff for sexual offending (including, in particular, offending against s 321(2)) because of the great variation that is possible in the circumstances of the offending and in the personal circumstances of the offender. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty and all other relevant sentencing factors. (citation removed)
4. It should also be emphasised that, for offending of this kind, the primary sentencing objectives are general and personal deterrence. Matters personal to the offender are ordinarily subsidiary considerations that are accorded less weight: Dorsett [47].

1. In determining whether an implied error has been made, regard is had to: (1) the maximum sentence for the offence - here 14 years' imprisonment; (2) the standards of sentencing customarily imposed; (3) the place which the criminal conduct occupies on the scale of seriousness; and (4) the personal circumstances of the offender.
2. We will return to the standards of sentencing customarily imposed and the objective seriousness of the respondent's offending. There is one aspect of the respondent's personal circumstances which ought to be dealt with at the outset. We have already addressed those aspects of the respondent's personal circumstances which were uncontroversial for the purposes of the appeal. There was, however, one matter of controversy. Counsel for the respondent contended that this court should recognise that the sentencing judge determined that the offending was out of character even though his Honour did not say this was a mitigatory factor that reduced the sentence. In the alternative the respondent sought that this court make a finding to the same effect.
3. We are unable, reading the sentencing remarks fairly and as a whole, to discern any finding on the part of the sentencing judge - whether express or inferred - that the offending was out of character. That is all the more so when no such finding was sought at sentencing by the respondent's then counsel. In circumstances where the finding was not sought before the sentencing judge we would not make the finding on appeal. This is not a case where it can be said that the relevant fact has been established beyond controversy. Also, what is now sought to be advanced on appeal could possibly have been met by evidence below. The respondent's notice of contention fails.
4. As to the standards of sentencing customarily imposed, and the comparable cases relied on by the parties, there is no tariff for sexual offending of the present kind. Understandably, given their recency, the parties' written and oral submissions focused on MGT and Dorsett (although counsel for the respondent also relied on GNR). While there are common features between the present case and each of MGT and Dorsett there are also significant distinguishing features.
5. Both MGT and Dorsett involved an offender who pleaded guilty to a count of sexual penetration of a child between 13 and 16, contrary to s 321(2) of the Code. In both cases, as in the present case, the child victim was aged 14 at the time of the offending. In both MGT and Dorsett the child victim became pregnant. The child victim gave birth in MGT; the pregnancy was terminated in Dorsett. The court was not prepared to say that the termination of the pregnancy, as opposed to giving birth, should make a difference to the sentence in the latter case: Dorsett [39].
6. In MGT the offender was aged 37 when he committed the offence. He was not youthful or inexperienced for sentencing purposes. There was an age disparity between the offender and his child victim of some 23 years. The offender knew that the child victim was aged 14. The offender was a trusted member of the household in which the child victim lived. The child victim suffered significant damage psychologically, socially, emotionally, and financially as a result of the offending. Some of those consequences were ongoing. The offender had neurodevelopmental and psychological conditions. These conditions, to some extent, diminished the offender's moral culpability. On the other hand, the offender's conditions increased the importance of personal deterrence. The offender was not sentenced on the basis that there was a lack of consent; but nor was there a finding, favourable to the offender, that the child victim was a willing participant. The offender initially twice denied having sexual intercourse with the child victim. However, following a paternity test, a plea of guilty at the first reasonable opportunity attracted a s 9AA discount of 25%. A sentence of 3 years' immediate imprisonment was held to be manifestly inadequate. This court re-sentenced the offender to a term of 4 years and 9 months' immediate imprisonment.
7. In Dorsett the offender was aged 24 when he committed the offence. No mitigation was given for youth. The relevant age disparity was one of 10 years. The offender knew that the child victim was 14 years old; he and the child victim had communicated via Snapchat. The child victim asked whether she and a friend could stay at the offender's home as they had nowhere to stay. The offender agreed and met the child victim and her friend to drive them back to his house. Once there the offender provided the child victim (and her friend) with alcohol. The sentencing judge found that the offender plied the child victim with alcohol to achieve his 'ultimate goal' - that being to have sex with her. This court considered that the provision of alcohol was designed to make the child victim more compliant. The offender and the child victim were not in any kind of romantic relationship. Nor was there any evidence that the child victim wanted such a relationship.
8. The sentencing judge concluded that, on the evidence, the question of whether there was free and voluntary 'consent' on the part of the child victim was 'neutral'. There was no finding of actual consent in fact on the part of the child victim.
9. This court characterised the offending as being 'highly predatory' - the offender deliberately took advantage of a vulnerable child for his sexual gratification. However, there were a number of mitigating circumstances. The sentencing judge allowed a 25% discount for a plea of guilty at the first reasonable opportunity. The offender was a person of prior good character. The sentencing judge also took into account the offender's service in the Royal Australian Navy and the loss of his position due to his offending. But the offender was not found to be remorseful; and, based on the risk of reoffending being above average, personal deterrence was said to be a relevant sentencing consideration.
10. The sentencing judge imposed a sentence of 3 years' immediate imprisonment in Dorsett. That sentence was held to be manifestly inadequate. This court re-sentenced the offender to a term of 4 years and 6 months' immediate imprisonment.
11. In the present case the sentencing judge's positive finding that FNH was a willing participant in the sexual activity that constituted the offending is an important feature that distinguishes it from MGT and Dorsett. In that respect it is useful to repeat what was said by Wheeler JA in The State of Western Australia v SJH concerning free and voluntary 'consent', absence of evidence concerning 'consent' and proved absence of 'consent':

Proved absence of consent or, particularly, knowledge of absence of consent is aggravating: Poulton v The State of Western Australia [2008] WASCA 97 per McLure P at [3]. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used: R v Storey [1998] 1 VR 359 at 371, cited in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, 638. If the primary purpose of the legislation is to protect children from 'abuse', actual absence of abuse, would appear, necessarily, to be mitigatory.[5]

1. In this case, the sentencing judge used the terminology of 'willing participant' rather than 'free and voluntary consent'. The differing implications identified by Wheeler JA arise in cases where, as a matter of fact, a child instigates sexual activity or agrees to engage in sexual activity without pressure or grooming. A situation of that kind is sometimes referred to as a case where there is free and voluntary 'consent' or where the child victim is a 'willing participant'. For example, there are references to a child victim being a 'willing participant' in Amedi v The State of Western Australia[6] and RHW v The State of Western Australia.[7]
2. Neither label is entirely satisfactory. In many circumstances it will not be meaningful to refer to a child who does not have the maturity to lawfully consent to or understand the nature and consequences of the activity as consenting to or being a willing participant in the activity: The State of Western Australia v MGA.[8] It should be remembered that the purpose of the statutory provision is the protection of children. It is the responsibility of adults not to engage in sexual activity with children who are under the age of consent.
3. In any particular case, the important thing is to recognise that criminality is to be assessed by focusing on the detail of the particular circumstances of the case, rather than a label which may be applied to describe those circumstances.
4. The relevance and weight to be given to the circumstance that the child victim instigates, or without pressure or grooming agrees to engage in, the sexual act that constitutes the offending will vary considerably depending on the particular facts and circumstances: MGT [56]; MGA [54]. Moreover, even where such a finding minimises the degree of abuse associated with the offending conduct, the offender's disregard of the law is a matter that must be considered in assessing the seriousness of the offence: SJH [76].
5. The State and the respondent referred to many additional cases. Many, but not all, of those cases were referred to in MGT and Dorsett. See MGT [60]; Dorsett [38]. In addition to the cases mentioned in MGT and Dorsett the State and the respondent referred to Deering v The State of Western Australia;[9] Jetter v The State of Western Australia;[10] and JYL v The State of Western Australia.[11]
6. While we have had regard to the facts and circumstances of, and sentences imposed in, the cases mentioned in MGT and Dorsett (as well as the additional cases mentioned by the parties) detailed analysis of those authorities does not provide any material assistance in the proper disposition of the appeal. The range of sentences customarily imposed for offending of a particular kind is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. But a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. In any case the consistency sought is consistency in the application of relevant legal principles rather than some numerical or mathematical equivalence. Micro-analysis of a kind where notional adjustments are suggested or made for differences in the circumstances of the offending or differences in the personal circumstances of the offenders tends not to clarify but rather to obscure or distract from the reason for considering the sentences that have been imposed in broadly comparable cases.
7. Something should, however, be said of GNR.
8. GNR is a very different case from the present case and the sentencing outcome in GNR is of extremely limited assistance to the present case. In GNR the offender was 18 at the time of the offence; the child victim was either 13 or 14. Accordingly, the age disparity was much less than the present case. The offender and the child victim commenced a romantic and sexual relationship when the victim was 13. The child victim told the offender she was 18. Later, when the offender discovered the child victim's real age, he tried to end the relationship. However, the child victim convinced the offender to continue the relationship and their sexual activity. The offending came to light when the child victim gave birth at the age of 14. At the material time the offender and the child victim were in a committed relationship which was supported by both the offender's and the victim's parents.
9. The offender was sentenced to a 12-month community-based order with a 50-hour community service requirement and a supervision requirement. He appealed. Accordingly, GNR was an offender appeal rather than a State appeal. One of the five grounds of appeal against sentence was that the sentence was manifestly excessive as to type - on behalf of the appellant it was submitted that, in the circumstances, a fine was appropriate. The court dismissed the ground. In this regard all that GNR establishes is that it was open for the sentencing judge to conclude that lesser sentencing options than a community-based order were inappropriate in the circumstances of that particular case. It was observed, however, that the continuing relationship and the birth of the child called for a merciful exercise of the sentencing discretion [61].
10. In the present case, in contending that the sentence of 2 years' immediate imprisonment was manifestly inadequate, the State emphasised the consequences of the respondent's offending. FNH's pregnancy and the subsequent birth of FNH's child was plainly an aggravating factor: GNR [32] - [33]. It is, however, incorrect in principle to focus on a single aggravating factor to the exclusion of all other relevant sentencing factors to contend that the respondent's offending warranted a term of immediate imprisonment well in excess of a term of 2 years. The seriousness of the offence must be determined taking into account the statutory penalty, the circumstances of the offending, the aggravating factors and the mitigating factors: Sentencing Act s 6(2).
11. The respondent's offending was objectively serious. He knew that FNH was aged 14 or 15. FNH was undoubtedly a vulnerable child. Yet, despite FNH's age, the respondent had unprotected penile-vaginal sex with her. The risk of pregnancy eventuated - as did the concomitant potentially harmful consequences of a child bearing and mothering a child. The respondent, while youthful, ignored what was an obvious risk. Even though FNH agreed to engage in the sexual activity without pressure or grooming, the age difference between the respondent and FNH was marked.
12. There was, however, no predatory behaviour on the part of the respondent. The sentencing judge found, without challenge in this appeal, that FNH was a 'willing participant' in the sexual activity. The respondent and FNH were well known to each other. Abuse is not established by a mere disparity in age: SJH [54]. In the present case the chronological disparity between the age of the respondent and the age of FNH is not reflective of their respective levels of maturity. The psychological evidence demonstrated that the respondent's background has hindered his socioemotional development and resulting relational vulnerabilities had driven his offending. There is, in this respect, another significant distinguishing feature between the present case and the offending in MGT and Dorsett.
13. There were other mitigating circumstances.
14. Apart from the plea of guilty, the sentencing judge recognised the respondent's youth to be a mitigating factor. That might be thought to be generous if viewed solely from the perspective of the respondent being 23 years of age at the time of the offending. However, it was a finding that was well open on the psychological evidence. So too there was mitigation in the respondent's transient upbringing more generally. The respondent's prior criminal record concerned offending that was completely different in its nature. The sentencing judge was correct to view the respondent's prior criminal record as a neutral factor for sentencing purposes. In all the circumstances, while the respondent's risk of reoffending meant that personal deterrence remained a relevant sentencing factor, we agree with the sentencing judge's conclusion that the respondent's circumstances were such that the community's interests were best served by determined efforts to rehabilitate a youthful offender.
15. There was, in addition, some - albeit limited - mitigation in the respondent's actions in supporting FNH during her pregnancy and immediately after the birth of FNH's child, and in the respondent's expressed desire to be a part of FNH's child's life. In so doing the respondent demonstrated a degree of personal responsibility for his actions. This is not a weighty matter. The indicia of acceptance of responsibility is moderated by the lack of insight demonstrated in the respondent attributing blame to FNH on the basis that she pursued him. So too it is partially negated by the respondent co-habiting with FNH in breach of protective bail conditions.
16. The objective seriousness of the respondent's offending is such that the sentence of 2 years' immediate imprisonment is lenient - perhaps even very lenient. But appellate intervention on the ground of manifest inadequacy is not warranted unless the court is driven to conclude that there must have been 'some misapplication of principle' when regard is had to all of the relevant sentencing factors: R v Pham.[12]
17. We are not so satisfied, and do not consider that the sentence of 2 years' imprisonment is unreasonable or plainly unjust, having regard to: (1) the maximum penalty (2) the objective criminality involved in the respondent's offending - there being, as has been explained, a number of features which differentiate the present case from the more serious abusive and predatory offending in MGT and Dorsett; (3) FNH's vulnerability; (4) the effect the offending has had on FNH and the wider consequence that FNH, while still a child, is tasked with mothering a child; (5) the broadly comparable cases and the degree to which the sentence in this case differs from sentences that have been imposed in those broadly comparable cases; (6) the respondent's antecedents and personal circumstances - in particular the respondent's relative youth and the impact on the respondent of his transient upbringing; (7) the aggravating factors; (8) the mitigating factors; (9) the need to provide a proper measure of general and personal deterrence - there being, in this case, the imposition of a custodial sentence on a young man who has not previously served a term of immediate imprisonment; and (10) all other sentencing factors and considerations including the primary sentencing considerations for offending of this kind as specified when identifying the applicable principles for the purposes of the appeal.
18. The sentence of 2 years' immediate imprisonment approached but did not reach the point where the sentence was manifestly inadequate. A lower sentence of immediate imprisonment may well have justified appellate intervention. The State's single ground of appeal had a reasonable prospect of succeeding and there had to be leave to appeal on that ground. However, for the reasons we have given, the appeal on that ground had to be dismissed.

1. It was for these reasons that we made orders on 22 January 2025, that:
   1. The appellant has leave to appeal on the single ground of appeal contained in the appellant's case dated 23 December 2024.
   2. The appeal is dismissed.
2. As the appeal was dismissed it is not necessary to consider the operation of the residual discretion to the particular facts of this matter. Any observations that might be made would be mere obiter dicta. In the circumstances, we would decline to address the parties' arguments on the application of the residual discretion to the State's appeal.

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

[1] The State of Western Australia v MGT [2024] WASCA 136.

[2] GNR v The State of Western Australia [2015] WASCA 5.

[3] The State of Western Australia v Dorsett [2025] WASCA 13.

[4] The State of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [97].

[5] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 [69] (referred to with approval in MGT [57]).

[6] Amedi v The State of Western Australia [2022] WASCA 172 [43].

[7] RHW v The State of Western Australia [2024] WASCA 83 [46].

[8] The State of Western Australia v MGA [2024] WASCA 108 [74].

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

[10] Jetter v The State of Western Australia [2021] WASCA 80.

[11] JYL v The State of Western Australia [2021] WASCA 222.

[12] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28(7)].