File No : IND 1916 of 2003, IND 870 of 2004

Criminal law and procedure - Sentencing - Four counts of sexual penetration of a child under 16 years whom the offender knew to be his lineal relative - Three counts of indecent dealings with a child under 16 years whom the offender knew to be his lineal relative - Three counts of indecent recording of a child under 16 years whom the offender knew to be his lineal relative - Whether individual sentences were manifestly excessive - Whether total effective sentence of 7 years' imprisonment infringed the totality principle

"D" v The Queen [2003] WASCA 33

Bell v The Queen [2001] WASCA 40

Boudville v The Queen [2001] WASCA 133

Dauphin v The Queen [2002] WASCA 104

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

Dickens v The Queen [2004] WASCA 179

Germain v The State of Western Australia [2004] WASCA 293

R v Chilvers [2003] WASCA 87

State of Western Australia v JPR [2004] WASCA 183

Woods v The Queen (1994) 14 WAR 341

Bishop v The Queen [2003] WASCA 79

De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996

Jarvis v The Queen (1993) 20 WAR 201

Mill v The Queen (1988) 166 CLR 59

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Hough [2002] WASCA 42

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

Shepherdson v The Queen; unreported; CCA SCt of WA; Library No 920179; 27 March 1992

1 STEYTLER J: I have had the advantage of reading the judgments of McKechnie J and Simmonds J.

2 I agree with each of them that, so far as the first ground of appeal is concerned, none of the sentences imposed upon the appellant is manifestly excessive or, to put it differently, beyond the range of a sound exercise of discretion in the circumstances of each offence, even given the circumstances of the offender and his pleas of guilty. I agree with all that Simmonds J has said in that regard.

3 As to the second ground of appeal, the sentencing Judge expressly took into account considerations of totality and, in my respectful opinion, made no material error in the exercise of his discretion in the course of doing so.

4 I agree with Simmonds J that, given the terms of the indictment, there is no basis for the submission, made by counsel for the appellant (but not made by his then counsel to the sentencing Judge), that all of the offences with which the appellant was charged occurred on the same date.

5 I also agree with Simmonds J that, given the very serious nature of the offending which occurred in this case, encompassing four counts of sexual penetration by a 37-year-old man of his own daughter, then only about 9 years old, the total sentence of 7 years' imprisonment was not beyond the range of a sound exercise of discretion, even given the personal circumstances and antecedents of the appellant and his pleas of guilty. While the six counts the subject of indictment 870 of 2004 were less serious than those the subject of indictment 1916 of 2003 (the sexual penetration counts), they were still serious, involving offences of indecent dealing and indecent recording against two children, his own daughters, then ages about 9 and 11 years respectively. The offences involved a gross breach of trust (cf Woods v The Queen (1994) 14 WAR 341 at 345), self-evidently having the potential to cause the children significant psychological harm.

6 While I would grant leave to appeal, I would dismiss the appeal.

7 MCKECHNIE J: The appellant seeks leave to appeal against sentences imposed on him following his pleas of guilty and conviction on two indictments.

"Ground 1.

The individual sentences imposed upon the applicant were manifestly excessive in the circumstances of the offence and of the offender.

Particulars

The learned sentencing judge failed to give appropriate weight to the applicants personal circumstances, including the applicant's pleas of guilty, remorse, voluntary efforts at rehabilitation and prospects of future rehabilitation previous good character and excellent work history.

Ground 2

The total effective sentence imposed infringed the totality principle of sentencing.

Particulars

If the total effective sentence of 7 years imprisonment was one that reflected the appropriate discount for the pleas of guilty and for the other mitigating circumstances then the starting point was excessive. The total effective sentence is so crushing as to call for merciful intervention of this court by way of reducing its crushing effect."

9 Indictment No 1916 of 2003 ("1916/03") charged four counts of sexual penetration of the appellant's 9 year old daughter. The offences occurred during access visits to the appellant who was divorced from the complainant's mother. It is unnecessary to detail the offences. I adopt the trial Judge's summary that in all the offences the appellant demonstrated a high degree of perversion and depravity.

10 The appellant was sentenced on 1916/03 as follows:

• Counts 2 and 3 - imprisonment for 2 years and 4 months.

11 The sentence on count 2 to be served cumulatively on the sentence on count 1 and the sentence on count 3 to be served concurrently. The sentence on count 4 to be served cumulatively. The total sentence was 5 years and 8 months' imprisonment with parole eligibility.

12 The plea of guilty was not a plea at the earliest opportunity occurring as it did 4 days before a pre-recording was set. Nevertheless, the Judge was required to, and did, take into account the plea of guilty and other matters personal to the appellant both in relation to this indictment and the other indictment.

13 The principles for sentencing offenders of interfamilial child sexual abuse are well settled: Woods v The Queen (1994) 14 WAR 341; Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996; Boudville v The Queen [2001] WASCA 133; Dauphin v The Queen [2002] WASCA 104; R v Chilvers [2003] WASCA 87.

14 Notwithstanding the personal matters favourable to the appellant, the principles of sentencing in the cases to which I have referred lead to the conclusion that the sentences imposed in respect of 1916/03 were within the range of a sound sentencing discretion and disclose no error.

15 On 4 May 2004 the appellant pleaded guilty to Indictment No 870 of 2004 ("870/04") which contained six counts. The first two counts related to the same complainant as in 1916/03 and the other four counts related to her elder sister, aged 11. The counts were in common form - three counts alleged indecently dealing with a lineal relative by directing indecent gestures towards her. Three counts alleged indecently recording a lineal relative by taking a sequence of indecent photographs.

16 Counts 1 and 2 occurred during access visits. The appellant set up a camera to take a series of still photographs, seconds apart, in the study of his house. He dressed in a pair of blue Speedo bathers with a large object down the front of them to make it appear as if he possessed a very large penis. He took pictures of himself with the complainant while the complainant looked at the home computer.

17 Counts 3 and 4 involved the older daughter who was then 11 years. The appellant commenced in the same way although on this occasion the camera was in the kitchen. Again the appellant was wearing his blue Speedos with a large object down the front of them. When the complainant walked into the kitchen to get a drink she observed the appellant and was photographed.

18 Counts 5 and 6 involved the same daughter. On this occasion the camera was set up in the study. The appellant again was wearing only his blue Speedos with a large object down the front of them. He took several photographs of himself in a sexually suggestive manner next to the complainant's head.

19 The Judge accepted that the pleas of guilty were made at a very early stage, demonstrated remorse or a willingness to facilitate the course of justice and an acceptance of responsibility for the conduct even though the case was, in the Judge's conclusion, overwhelming by reason of the continuing existence of the photographs.

20 In respect of these counts the Judge considered that the offences occurred on three separate occasions. Having regard to the totality principle, the Judge sentenced the appellant to terms of 8 months in respect of each offence, counts 1 and 3 to be served cumulatively on each other. The total sentence of 16 months on 870/04 was ordered to be served cumulatively on the sentences imposed on 1916/03. The total sentence imposed for the criminal conduct disclosed in both indictments was 7 years' imprisonment. A single parole eligibility order was made.

21 The Judge expressly considered the question of totality and further considered whether or not the total sentence would be crushing. The Judge said that the offences in 1916/03 occurred on different occasions to the offences in 870/04.

22 On appeal Mr Grace, who appeared for the appellant, sought to challenge this finding by reference, among other things, to the dates on the particulars indicating that the offences, or some of them, may have occurred at the same time. However, it was implicit in the prosecution summary of facts that the events in 870/04 occurred at different times to those events alleged in 1916/03. This was not challenged by experienced defence counsel. It was open for the Judge to conclude that they occurred on different occasions.

23 The offences disclosed in 870/04, while serious, lacked many of the features that would take them into the upper ranges of offences of this nature. There was, for instance, no element of commercial gain nor did the photos appear to be taken for distribution. A particular aspect of indecent dealing which contributed to the gravity was the fact that the

behaviour observed by the complainants was that of their father. In the circumstances I would not regard a sentence of 8 months' imprisonment in respect of each offence as beyond the range of a sound sentencing discretion.

24 There remains, however, the question of totality of the sentence. The appellant is apparently genuinely remorseful. Importantly, he had himself sought help from a clinical psychologist, experienced in the area of sexual offending, and had commenced treatment. In the psychologist's opinion he was not likely to offend again in the future. Of course, only limited value can be given to such an opinion but, nevertheless, it was before the Judge as one of the mix of factors to be taken into account. The pre-sentence report was positive.

25 It is a bleak fact that many sexual offenders have themselves been sexually offended against in the past. In this case, the appellant had been the victim of proven and depraved sexual abuse: "D" v The Queen [2003] WASCA 33.

26 Normal principles of sentencing would suggest that discrete criminal conduct should be punished separately. However, that principle may on occasion give way to another principle; that the totality of the sentence imposed upon an offender should be proportional to the whole criminal conduct and should not be more than meets the needs of proper sentencing objectives. Having regard to the sentences imposed on 1916/03, together with the objective features of the conduct disclosed in 870/04, the early plea of guilty, the psychological treatment, the remorse and the degree of proportionality necessary to be maintained, I consider that the objectives of sentencing, including punishment and deterrence, would have been met with an order making the sentences on 870/04 concurrent with the sentences imposed on 1916/03. In my opinion in this case, the Judge erred in the exercise of the sentencing discretion by failing to give proper expression to the totality principle so that the combined sentences became, in the circumstances, manifestly excessive.

27 I would grant leave to appeal, and allow the appeal by varying the orders pronounced in the District Court so as to make the sentences imposed on 870/04 to be served concurrently with the sentences imposed on 1916/03.

28 SIMMONDS J: This is an application for leave to appeal and argument on the appeal from a sentence of imprisonment totalling 7 years on two

indictments. I should note that this is indeed a case where it would be appropriate to grant the leave to appeal sought.

29 One of the indictments appealed against, 1916 of 2003, consisted of four counts of sexual penetration of a child under 16 years whom the accused knew to be a lineal relative, in this case one of the accused's two daughters. The other indictment, 870 of 2004, consisted of a total of six counts, in three pairs. One pair consisted of indecently dealing with a child under 16 years whom the accused knew to be a lineal relative, in this case the daughter from the other indictment, and of indecently recording her on the same date and at the same time as the indecent dealing. The other two pairs of counts related to the accused's other daughter, and each pair consisted of indecently dealing with a child under 16 years whom the accused knew to be a lineal relative and of indecently recording her on the same date and at the same time as the indecent dealing. The offender was sentenced on the two indictments together, following his pleas of guilty to both. The grounds of appeal were that the individual sentences on each count were manifestly excessive, and that the aggregate of the total effective sentences on the two indictments violated the totality principle.

30 In my reasons, I first set out the background to and detail of the sentences handed down to the offender. Then, I examine each of the grounds of appeal.

31 On 1 April 2004, before his Honour Judge Martino of the District Court, TJD pleaded guilty to each of four counts of sexual penetration comprising indictment 1916 of 2003, concerning his daughter "H". Count 1 was that on a date unknown between 20 March 2003 and 1 July 2003, at the offender's home, TJD sexually penetrated "H", a child whom he then knew to be his lineal relative, by introducing his penis into her mouth. The remaining three counts were of the same conduct on different dates, namely, count 2, on or about 7 July 2003, count 3, on or about 8 July 2003 and count 4, on or about 9 July 2003. It will be noted that none of the counts in their original form referred to the age of "H" as being less than 16 years, a matter to which I will return.

32 Following the conduct the subject of count 4, "H" complained to her sister, "E", and rang her mother. On 28 July 2003, the police located and interviewed TDJ, who denied all offences. However, about a week before the 1 April 2004 appearance, TJD, through his solicitors, notified the prosecution of his intention to plead guilty, and thereby the necessity for arrangements then in train for "H" to give evidence in the form of video interview was avoided.

33 On 4 May 2004 at the sentencing hearing for both indictment 1916 of 2003 and the indictment I will return to shortly, 870 of 2004, before his Honour Martino DCJ, the State obtained leave without objection from TJD to amend the indictment to include that "H" was under 16 years at the time of each of the offences, and TJD then pleaded guilty to all counts on the amended indictment.

34 The offences comprising the original and the amended indictment were against Criminal Code 1913 (WA) s 329(2), the penalty for which by virtue of s 329(9) is 10 years when the child is of or over 16 years of age, but double that, 20 years, when the child is under 16 years. At the time of the offences, "H" was about 9 years old, while the offender was about 35 or 36 years.

35 Finally, I note that the offences were committed at the offender's home, as I have indicated, apparently while "H" was on access visits.

36 On 1 April 2004, at the hearing before Martino DCJ where TJD pleaded guilty to the unamended indictment 1916 of 2003, the learned Judge was informed of the charges of indecent dealing and indecent recording then pending before the Court of Petty Sessions, and to which he was told TJD would plead guilty, as he did.

37 On 4 May 2004, before Martino DCJ, TJD pleaded guilty to each of the counts of indecent dealing and of indecent recording in what had become indictment 870 of 2004 on the charges I have referred to. Count 1 was that on a date unknown between 1 September 2002 and 28 July 2003 at the offender's home, TJD indecently dealt with "H", a child whom he then knew to be his lineal relative, by directing indecent gestures towards her, and "H" was a child under the age of 16 years.

38 Count 2 was that on the same date and at the same place as in count 1, TJD indecently recorded "H", a child whom he then knew to be his lineal relative, by taking a sequence of indecent photographs of "H", and "H" was a child under the age of 16 years.

39 Count 3 was that "on another date unknown between 1 September 2002 and 28 July 2003" at the offender's home, TJD indecently dealt with "E", the sister of "H", a child whom he then knew to be his lineal relative, by directing indecent gestures towards her, and "E" was a child under the age of 16 years.

40 Count 4 was that on the same date and at the same place as in count 3, TJD indecently recorded "E", a child whom he then knew to be his lineal relative, by taking a sequence of indecent photographs of "E", and that "E" was a child under the age of 16 years.

41 Count 5 was identical in its terms to count 3, while count 6 was identical in its terms to count 4, except for a reference to count 5 in place of one to count 3.

42 The offender's daughter, "E", is older than daughter "H", and at the time of the offences was about 11 years old.

43 The indecent dealing offences were against the Code s 329(4) and the indecent recording offences were against the Code s 329(6). The penalties in both cases under s 329(10) were 5 years when the child was of or over 16 years, or double that, 10 years, when the child was under 16 years. As I have indicated, the offences were alleged to have been committed at the offender's home, and apparently were committed while the daughters were on access visits.

44 The offences of sexual penetration comprising indictment 1916 of 2003, as they appeared to Martino DCJ, were of three different sorts. All involved the offender calling "H" away from her sister to a room in his house where he was either naked or clad only in a dressing-gown. In all four incidents the offender inserted his penis into "H's" mouth and manoeuvred it for a period of time before ejaculating there. In the incident in count 1, he had first tied two socks together and blindfolded "H" with them. In the incident in counts 2 and 3 he also did this, but "H" was able to see under the blindfold that he was videotaping the incident with a small video-recorder. In the incident in count 4, "H" was not blindfolded and the incident was not videotaped.

45 On 4 May 2004, Martino DCJ, after referring to a number of matters, including those to which I will return, and to the sentences he imposed being after the reduction of one-third for the abolition of remission by Sentencing Legislation and Repeal Act 2003 (WA), in accordance with its transitional provisions, sentenced the offender to different terms of imprisonment in respect of three sorts of offences. The sentence was 2 years on count 1, 2 years and 4 months on each of counts 2 and 3, and 1 year and 4 months on count 4. The terms on counts 2 and 3 were made concurrent with each other, but cumulative on count 1, while the terms on count 4 were made cumulative, for a total effective sentence of 5 years and 8 months.

46 The offences of indecent dealing and indecent recording comprising indictment 870 of 2004 were the three pairs I have referred to made up in each case of an indecent dealing and an indecent recording. The recording was of the dealing. In each case, the offender had set up in a room at his house, being different rooms, at least in the case of count 1, involving "H" (a study or a computer room), and count 3, involving daughter "E" (the kitchen), a camera with which to take a photograph every few seconds of himself and one of his daughters while they were in the room together. The offender was dressed only in Speedo bathers, and had inserted a large object down the front of them to make it appear he possessed a very large penis. In the incidents in counts 1 and 2, "H" was looking at the home computer; in the incident in counts 3 and 4, "E" had entered the kitchen where she observed the offender, holding the object down his pants in a sexually suggestive manner, shortly afterwards touching the object; and in the incident in counts 5 and 6, "E" was playing a computer game in the computer room while the offender was photographing himself in a sexually suggestive manner near "E's" head.

47 On 4 May 2004, Martino DCJ, after referring to a number of matters to which I will return, and making the remarks to which I referred earlier about reduction of the sentences under the sentencing legislation of 2003, sentenced the offender to imprisonment for 8 months on each of the six counts. The terms on counts 1 and 2, and on counts 3, 4, 5 and 6 were made concurrent, while the sentence on count 3 was made cumulative on the sentence on count 1. This made for a total effective sentence on the indecent dealing and indecent recording counts, indictment 870 of 2004, of 1 year and 4 months.

48 Martino DCJ noted the result was a total sentence of 7 years' imprisonment (5 years 8 months plus 1 year 4 months), being the aggregate of the two total effective sentences, to commence on 1 April 2004, and with eligibility for parole after 5 years from that date.

49 The grounds of appeal originally included ones related to making the total effective sentence on the indecent dealing and indecent recording counts comprising indictment 870 of 2004 cumulative on the sexual penetration counts comprising the indictment 1916 of 2003. However, at the hearing, leave was granted to amend the grounds by removing those. This left the two to which I first referred, to which modest amendments were made. However, as I will note, the matter of the cumulation of the total effective sentences on the two indictments is one that arises in relation to ground 2 of the grounds of appeal, having to do with the application of the totality principle in this case, and I will return to it in that connection.

50 This ground referred us to the circumstances of the offence and of the offender, and gave as particulars the learned sentencing Judge's failure "to give appropriate weight to the applicants personal circumstances, including the applicants pleas of guilty, remorse, voluntary efforts at rehabilitation and prospects of future rehabilitation previous good character and excellent work history". At the hearing before us, it became clear that it was necessary to deal with the offences of sexual penetration comprising indictment 1916 of 2003 separately from the offences of indecent dealing and indecent recording comprising indictment 870 of 2004.

51 In relation to the pleas of guilty to the counts of sexual penetration comprising indictment 1916 of 2003, the learned sentencing Judge had noted that the original pleas, on 1 April 2004, were "late", but in sufficient time to avoid "H" having to give evidence and demonstrated "remorse, a willingness to facilitate the course of justice and an acceptance of responsibility for your conduct, albeit at a late stage" (AB 53). He added that the offender's "non-objection" to the amendment of the indictment to add the references to "H" below 16 years of age, and his pleas of guilty to the indictment so amended, demonstrated a willingness "to facilitate the course of justice as soon as possible [at the time of the sentencing hearing], and remorseful and accepting responsibility for your conduct".

52 In relation to the pleas of guilty to the indecent dealing and indecent recording counts comprising indictment 870 of 2004, Martino DCJ had noted their having been made "at a very early stage", again demonstrating "remorse, a willingness to facilitate the course of justice and an acceptance of responsibility for your conduct" (AB 53). However, the learned sentencing Judge also noted in connection with these pleas that "the case against you was overwhelming by reason of the continued existence of the photographs" (AB 53).

53 It will be seen that the learned sentencing Judge saw remorse in the pleas of guilty in this case, more strongly for the earlier pleas, but tempered in that case by the strength of the case against him. He also noted that the offender had sought counselling, that "you have some understanding of the consequences of your offending and how you can ensure that you do not offend in the future", and that "it is likely that you will take advantage of the sex offender treatment program in prison and so there will be little chance of your reoffending on your release" (AB 55). The learned sentencing Judge further noted that the offender had no record of other offences of a sexual nature and was "in respects other than this offending a person who has good qualities and is of a good character" (AB 54). He added this was "particularly so in relation to your work. You are an extremely hard worker" (AB 54).

54 It is evident from all of these remarks that the learned sentencing Judge had in mind when sentencing TJD the matters to which the particulars for this ground 1 make specific reference. Counsel for TJD submitted, however, that the learned sentencing Judge had not given these matters and other matters personal to the offender their appropriate weight. Our attention was drawn to the numerous consultations that the offender had had with his psychologist, the history of intra-familial sexual abuse that had touched the offender while he was growing up, and the impact on him of his taking steroids to enhance his youthful athletic ability, an impact in the form of a reduction in the size of his genitals which might go to explain the form taken by his indecent dealing behaviour counts in indictment 870 of 2004. The learned sentencing Judge also made reference to the abuse of the offender and his steroid use (AB 54, 55).

55 We were asked to consider all the matters to which counsel referred in relation to the scaled-up sentences, on the sexual penetration offences comprising indictment 1916 of 2003 and the indecent dealing and indecent recording offences comprising indictment 870 of 2004, to permit us to compare the results in this case with sentences to which the reduction by one-third for the abolition of remission by the sentencing legislation of 2003 had not applied. We were referred to a number the cases on sentencing in the area of sexual offences involving children, including Woods v The Queen (1994) 14 WAR 341, Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 and "D" v The Queen [2003] WASCA 33. This last case assumes particular significance in this appeal, for reasons I will shortly explain.

56 Those cases and others cited to us indicate, however, this Court's consistent acknowledgement that "there is no tariff for sexual offences", and "that mitigating factors do not have as much weight as they might do in other cases", while also reinforcing that, in relation to appellate judgments in this area, "usually the most that can be discerned is that a sentence does or does not fall within the range of sentences commonly imposed. If a sentence falls outside the range, attention is invited as to whether there are any circumstances which put it beyond the range although a sentence beyond the range is not, of itself, necessarily indicative of manifest error": Germain v The State of Western Australia [2004] WASCA 293, per McKechnie J, [17], [20], Murray and Simmonds JJ agreeing.

57 There is a further dimension those authorities point to that is represented by an intra-family context to offences of the kind here. The remarks of Anderson J in Bell v The Queen [2001] WASCA 40, at [12], are often cited in this regard, as they were in the judgment of this Court in State of Western Australia v JPR [2004] WASCA 183, at [20]. Anderson J in Bell at [12] said:

"The point is that in cases of intra-familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone except children in the family and will usually be most unlikely to reoffend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting and who are in a position to conceal their offending."

58 I note also the remarks of his Honour to a similar effect in the earlier case of Woods (supra), at 254, quoted in "D" (supra), per Miller J, at [20], Malcolm CJ and Murray J agreeing.

59 In relation to the sexual penetration offences in the indictment 1916 of 2003, the individual sentences scale up to ones of 3 years and 6 months, 3 years and 2 years, which appear to me to fall well within the range of sentences disclosed by the authorities I have referred to. Of particular relevance appears to me "D", where the appellant was, we were told, TJD's father. D, by comparison with TJD, had a prior history of sexual offending, and what appear to me to be somewhat less favourable indications of an interest in voluntary rehabilitation, and much less favourable indications of prospects for future rehabilitation. However, he had similar indications of good character and work history, no evidence referred to in the appeal judgments of any sexual abuse he had undergone himself, and indications that he was treated as having pleaded guilty at the first opportunity. The victims involved in D's case were aged 9 and 14 years at the relevant times, when D was 53, much older than TJD at the relevant times. However, the victims' relationship to D, other than one of trust, is not shown by the appeal judgment, although it appears, from the quotation in that case from Woods (supra), per Anderson J, at 354 to which I earlier made reference, that a family context of some sort was involved.

60 The Court in "D" varied the sentences imposed by the learned sentencing Judge downwards in each case, to include one reduced from 7 years to 6 years on account of a sexual relationship with a child under 16 over a 3-month period. In submissions for the purpose of sentencing three separate occasions on three different days were referred to, one involving D touching the victim's vagina, one of her touching his penis and one of him inserting his finger into her vagina for a short time.

61 In the case of TJD, the State had elected not to attempt to show any history of a sexual relationship between TJD and "H", or that the incidents in question were not isolated events.

62 In "D", the Court also varied downwards, from 7 years to 5 years, sentences on two other counts of sexual penetration involving the 14-year-old victim, one the insertion of a finger into her vagina for a short time, and the other performing cunnilingus on her.

63 Bearing in mind particularly the varied sentences in "D" and the circumstances of the offender and the offences in that case compared with this one, it does not appear to me that the individual sentences here show manifest error. I note in this case the home context, the character of the sexual penetrations, and the blindfolding and the video-recording.

64 The indecent dealing and indecent recording offences are a closer question, however. Counsel could not refer us to other authorities on the indecent recording offences. Again, comparisons with "D" may be drawn.

65 In "D", there were four counts of indecent dealings on two different occasions, consisting of counts of touching the victim, then aged 14, on the outside of the clothing over a breast, as well as the removal of her clothing and shining a torch between her legs. The Court on three of the four counts varied the sentences imposed downward, from 3 years in each case to 18 months in two of the case and 12 months in the other. The two cases of reduction from 3 years to 18 months involved the offender waking the victim while she was sleeping at night at accommodation they had travelled to for the purposes of a fishing weekend, touching her outside her clothing over the vagina in one case, and over a breast with a moving of her legs apart in the other. In the case involving the reduction from 3 years to 12 months, there was a touching of the victim's breasts outside her clothing while they were sitting on the tailgate of the offender's vehicle on a crabbing trip to Mandurah.

66 Again, bearing in mind the varied sentences in "D" and the circumstances of the offender and the offences in that case compared with this one, it does not seem to me the scaled-up individual sentences of 12 months each for the indecent dealings and indecent recordings disclose manifest error. I note in this case the home context in which the incidents in this case occurred, and the ages of the victims here (9 and 11 years), compared with the age of the victim in "D" (14 years), even allowing for the greater age of the offender in "D".

Ground 2: total effective sentence infringed the totality principle of sentencing

67 This principle relates to the third of the three stages of the sentencing process for multiple offenders described by McLure J in Dickens v The Queen [2004] WASCA 179, at [11], Murray J agreeing, Jenkins J agreeing with this aspect of her Honour's judgment. Her Honour, McLure J described the process and the place of the totality principle in it as follows:

"In the ordinary course of sentencing for multiple offences, the sentencing court will firstly determine the appropriate sentence for each offence, secondly assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally review the total sentence to be imposed by reference to the principle of totality including the question whether the total sentence is crushing."

68 Martino DCJ in this case indicated in his sentencing remarks that he had "had regard to the totality of your criminality and the offences for which you have been convicted, to ensure that the totality of sentence reflects the totality of the criminality and that the total sentence is not crushing" (AB 56). He did this before referring to his assessment of whether the individual sentences should be concurrent or cumulative, but I do not think that this ordering of the sentencing process in the circumstances of this case produced an error, as I will explain.

69 However, counsel for TJD made two points in relation to what he submitted was an error in terms of the totality principle. One was that the learned sentencing Judge ought to have considered that the way the prosecution put the material facts to the Court and some suggested ambiguity in the indictment, as pointing to the possibility that all of these offences occurred on the same occasion. He conceded, however, that the defence at the hearing did not take this point, and, notwithstanding some infelicity in the drafting of the indictment, it seems to me to be extremely difficult to square with the indictment's terms to which TJD pleaded guilty, at least in respect of count 1 and associated count 2, for daughter "H", and count 3 and associated count 4, for daughter "E".

70 Counsel's second point, made in conjunction with the first, was that when the total effective sentence on the indictment 870 of 2004 is made cumulative on that in the indictment 1916 of 2003, it becomes evident that the totality principle is infringed. This emerged in two ways, it was said.

71 One of the ways in which it was said to emerge was when the scaled-up form of the aggregate of the two effective total sentences, 101/2 years, was compared with the total effective sentence resulting from the decision of the Court of Criminal Appeal in "D", of 11 years. The former, we were reminded, was in fact after any discount for pleas of guilty. However, that was also the position in the sentence in "D", where, as I have explained, a greater discount would have been justifiable. In view of my analysis of the criminality of the offences in the two indictments here by reference to "D", and the other comparisons with that case which I set out under the previous ground, I do not see an infringement of the totality principle having been made out.

72 However, the other way it was said an infringement of the totality principle emerged was evident after focussing on the contribution made to the aggregate by the total effective sentence on the indecent dealing and indecent recording offences comprising indictment 870 of 2004. Scaled-up, that total effective sentence was 2 years, one-fifth of the maximum for the offence. It appears to be at this point that counsel's argument about possible coincidence in time assumes further significance, as raising the possibility of a "series of offences ... very closely connected in nature, time and circumstance" such that "they are more likely to be characterised as part of one transaction or episode of offending" in the terms of McLure J's statement of the second stage in the sentencing process as set out in Dickens (supra) at [14].

73 That, however, seems to me to approach the matter incorrectly in this case. It does not take sufficient account of the fact there were two different victims, and the indictment to which the accused pleaded guilty made it reasonably plain that there were different dates involved at least as between two pairs of offences for those two victims, as I indicated earlier. In such a case, as her Honour observed in Dickens, "the prima facie position is that the sentences should be made cumulative" (at [14]).

74 Of course, the totality principle, applied to the aggregate of the total effective sentences, at the third stage of the sentencing process, might cause the Court to find the application of the "one transaction" or "continuing episode" rule would not result in "an appropriate measure of the total criminality involved": Dickens per McLure J at [12]. At that point, the Court should "if practicable" achieve the appropriate result "by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence": Mill v The Queen (1988) 166 CLR 59 at 63" (at [12]). The converse is, of course, also the case, where making sentences cumulative would produce an infringement of the principle. In this case, however, as I have indicated, no such infringement is apparent to me.

75 Accordingly, while as I said at the outset I would grant the leave to appeal, I would not uphold either ground of appeal, and would dismiss it.

• Indictment No 1916 of 2003
• Indictment No 870 of 2004
• Background to and makeup of sentences
• Ground 1: manifestly excessive sentences
• Ground 2: total effective sentence infringed the totality principle of sentencing
• Conclusion