DONALD ATKINS (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 93

[2026] WASCA 93 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DONALD ATKINS (A PSEUDONYM) -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2026] WASCA 93 CORAM : MITCHELL JA HALL JA SWEENEY JA HEARD : 4 MAY 2026 DELIVERED : 30 JUNE 2026 FILE NO/S : CACR 112 of 2025 BETWEEN : DONALD ATKINS (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent FILE NO/S : CACR 113 of 2025 BETWEEN : DONALD ATKINS (A PSEUDONYM) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent -- 1 of 67 -- [2026] WASCA 93 Page 2 ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : LONSDALE DCJ File Number : IND ALB 69 of 2022 Catchwords: CACR 112 of 2025 Criminal law - Appeal against conviction - Child sex offences - Application to adduce additional evidence - Whether evidence fresh or new - Whether evidence casts doubt on the credibility of one of the complainants such as to establish a miscarriage of justice - Whether the decision of the prosecutor not to call two witnesses resulted in a miscarriage of justice CACR 113 of 2025 Criminal law - Appeal against sentence - Child sex offences - 25 offences over 10-year period - Multiple acts of sexual penetration - 4 child complainants aged between 7 and 13 years - Whether total effective sentence of 19 years' imprisonment breached the totality principle Legislation: Criminal Code (WA), s 329(9)(1), s 329(10)(a) Result: CACR 112 of 2025 Application for an extension of time refused Application to adduce additional evidence refused Leave to appeal refused Appeal dismissed CACR 113 of 2025 Application for an extension of time granted Leave to appeal granted Appeal dismissed -- 2 of 67 -- [2026] WASCA 93 Page 3 Representation: CACR 112 of 2025 Counsel: Appellant : In person Respondent : R P Arndt Solicitors: Appellant : In person Respondent : Director of Public Prosecutions (WA) CACR 113 of 2025 Counsel: Appellant : In person Respondent : R P Arndt Solicitors: Appellant : In person Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): AAE v The State of Western Australia [2024] WASCA 35 Beamish v The Queen [2005] WASCA 62 CAND v The State of Western Australia [2018] WASCA 101 DPJB v The State of Western Australia [2010] WASCA 12 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Houghton v The State of Western Australia [No 2] [2022] WASCA 7 Jones v The State of Western Australia [2024] WASCA 115 Kabambi v The State of Western Australia [2019] WASCA 44 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 LDF v The State of Western Australia [2025] WASCA 193 MHE v The State of Western Australia [2019] WASCA 133 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 OTR v The State of Western Australia [No 2] [2022] WASCA 123 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 -- 3 of 67 -- [2026] WASCA 93 Page 4 RGT v The State of Western Australia [2017] WASCA 120 SCN v The State of Western Australia [2017] WASCA 138 The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Willis v The State of Western Australia [2026] WASCA 81 -- 4 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 5 JUDGMENT OF THE COURT: 1 The appellant was convicted after a trial of 25 child sexual offences, committed over a 10-year period against four of his stepdaughters. He was sentenced to a total effective sentence of 19 years' imprisonment. He seeks leave to appeal against both his conviction and his sentence. 2 Both appeal notices were filed approximately eight months after the time for appealing expired. In affidavits in support of applications for extensions of time, the appellant explains that the delay was due to difficulties in obtaining legal advice. The full extent of the delay is not satisfactorily explained, and whether an extension should be granted depends on the merits of the grounds. 3 The appellant is self-represented, and some allowance needs to be made when considering the formulation of his grounds of appeal and his written and oral submissions. The essential contentions are clear. 4 There are two grounds of appeal against conviction. The first ground contends that one of the complainants gave false and misleading evidence at the trial. The appellant has applied to adduce additional evidence on the appeal in support of this ground. The contention is that the new evidence casts doubt on the credibility of the relevant complainant and could have resulted in a different outcome at the trial. The second ground alleges that a miscarriage of justice occurred because the prosecutor did not call two witnesses who the appellant contends could have given relevant evidence. Those witnesses are the appellant's wife and a woman who gave a statement relating to sleep-over arrangements for one of the complainants. 5 As to ground 1 of the conviction appeal, the evidence that the appellant seeks to adduce is evidence that could, with reasonable diligence, have been available at the time of the trial. Much of it is irrelevant to the issues at trial or otherwise inadmissible. In any event, the evidence relates only to the credibility of the relevant complainant in the most marginal way. None of it is directly relevant to the facts in issue. It is not evidence that establishes that the appellant is innocent or raises such a doubt that there can be satisfaction that the appellant should not have been convicted. 6 As to ground 2, no prejudice has resulted from the prosecutor's decision not to call either of the witnesses. The witnesses were available for the appellant to call at the trial. In any event, the evidence -- 5 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 6 of the appellant's wife is largely either irrelevant, mere expressions of opinion, otherwise inadmissible or relates to matters that were uncontroversial at the trial. The evidence of the other witness does not, as the appellant claims, establish that the appellant did not have an opportunity to commit the relevant offence. 7 There are four grounds of appeal against sentence. The grounds essentially resolve into a single contention. That contention, in effect, is that the total effective sentence of 19 years' imprisonment breached the first limb of the totality principle. 8 The total effective sentence of 19 years' imprisonment was towards the upper end of the available discretionary range for this offending. Nonetheless, taking into account that the appellant was convicted of 25 sexual offences, against four children, over a 10-year period, that the children were his stepchildren, that the offending involved serious breaches of trust, that the children were aged between 7 and 13 years old, that the offences included multiple acts of sexual penetration, and that the appellant was convicted after trial, we are unable to conclude that the total sentence was disproportionate to the overall criminality. It has not been established that the total sentence is unreasonable or plainly unjust. 9 For the more detailed reasons that follow, we would refuse an extension of time, refuse leave to adduce the additional evidence, refuse leave to appeal on each of the grounds against conviction and dismiss the appeal against conviction. As the total sentence is a long one and the challenge to that sentence was at least arguable, we would grant an extension of time and grant leave to appeal against the sentence but dismiss that appeal. The charges 10 The following table sets out the charges, maximum penalties and sentences imposed on the appellant. There are four complainants, who will be referred to in these reasons as River,1 Rowan,2 Whitney3 and Margot:4 1 A pseudonym. All members of the family have been given pseudonyms to protect the identities of the complainants. The use of first name pseudonyms is for convenience and not intended to show any disrespect to the individuals concerned. 2 A pseudonym. 3 A pseudonym. 4 A pseudonym; ts 1186 - 1188. -- 6 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 7 Count Date Offence (Criminal Code (WA), complainant and age Maximum penalty Sentence 1 Unknown date between 25/10/2011 - 30/12/2012 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [River, aged 9 - 10] 10 years 6 months' imprisonment (concurrent) 2 Same date as count 1 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [River, aged 9 - 10] 20 years 3 years' imprisonment (concurrent) 3 Unknown date between 25/10/2011 - 30/12/2012 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [River, aged 9 - 10] 10 years 2 years' imprisonment (concurrent) 4 Same date as count 3 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [River, aged 9 - 10] 10 years 2 years' imprisonment (concurrent) 5 Unknown date between 01/01/2012 - 31/12/2014 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [River, aged 9 - 12] 20 years 3 years' imprisonment (concurrent) 6 Unknown date between 01/01/2014 - 31/12/2015 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [River, aged 9 - 13] 20 years 6 years' imprisonment [cumulative] (Reduced from 7 years for totality) -- 7 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 8 Count Date Offence (Criminal Code (WA), complainant and age Maximum penalty Sentence 7 Unknown date between 01/01/2012 - 22/12/2015 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [River, aged 9 - 13] 10 years 6 months' imprisonment (concurrent) 8 Unknown date between 04/06/2014 - 31/12/2016 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [Rowan, aged 10 - 13] 10 years 12 months' imprisonment (concurrent) 9 Same date as count 8 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [Rowan, aged 10 - 13] 10 years 12 months' imprisonment (concurrent) 10 Same date as count 8 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [Rowan, aged 10 - 13] 10 years 2 years' imprisonment (concurrent) 11 Unknown date between 30/06/2013 - 30/06/2016 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [Rowan, aged 10 - 13] 10 years 2 years' imprisonment (concurrent) 12 Same date as count 11 Sexual penetration of de facto child under 16 years 20 years 3 years' imprisonment -- 8 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 9 Count Date Offence (Criminal Code (WA), complainant and age Maximum penalty Sentence (s 329(2), s 329(9)(a)) [Rowan, aged 10 - 13] [cumulative] 13 Unknown date between 01/01/2013 - 31/12/2013 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Whitney, aged 6 - 7] 20 years 3 years' imprisonment (concurrent) 14 Unknown date between 19/04/2015 - 03/08/2015 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Whitney, aged 8] 20 years 3 years' imprisonment [cumulative] 15 Discontinued after pre-recording 16 Discontinued after pre-recording 17 Unknown date between 01/03/2016 - 30/04/2016 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Whitney, aged 9] 20 years 3 years' imprisonment (concurrent) 18 Unknown date between 01/01/2017 - 31/12/2018 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [Whitney, aged 10 - 12] 10 years 6 months' imprisonment (concurrent) -- 9 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 10 Count Date Offence (Criminal Code (WA), complainant and age Maximum penalty Sentence 19 Unknown date between 24/04/2017 - 13/05/2020 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Margot, aged 7 - 10] 20 years 7 years' imprisonment [cumulative] 20 Unknown date between 01/12/2017 - 31/12/2018 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Margot, aged 7 - 8] 20 years 5 years' imprisonment (concurrent) 21 Unknown date between 01/07/2019 - 31/12/2019 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [Margot, aged 9] 10 years 2 years' imprisonment (concurrent) 22 Same date as count 21 Indecently deal with de facto child under 16 years (s 329(4), s 329(10)(a)) [Margot, aged 9] 10 years 12 months' imprisonment (concurrent) 23 Same date as count 21 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Margot, aged 9] 20 years 7 years' imprisonment (concurrent) -- 10 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 11 Count Date Offence (Criminal Code (WA), complainant and age Maximum penalty Sentence 24 Unknown date between 01/01/2020 - 31/01/2020 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Margot, aged 9] 20 years 5 years' imprisonment (concurrent) 25 Unknown date between 01/05/2020 - 18/02/2021 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Margot, aged 10] 20 years 5 years' imprisonment (concurrent) 26 Same date as count 25 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Margot, aged 10] 20 years 5 years' imprisonment (concurrent) 27 Unknown date between 03/08/2015 - 18/02/2021 Sexual penetration of de facto child under 16 years (s 329(2), s 329(9)(a)) [Margot, aged 5 - 10] 20 years 5 years' imprisonment (concurrent) Total Effective Sentence 19 years' imprisonment Prosecution case 11 Between the late 1990s and 2011, Gertrude5 was in a relationship with Gaston.6 They married seven years after their relationship commenced.7 Over the course of that relationship, they had eight 5 A pseudonym. 6 A pseudonym. 7 ts 603 - 604. -- 11 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 12 children together: Dominique,8 born 26 June 1999; Marvin,9 born 9 October 2000; River, born 22 February 2002; Rowan, born 30 June 2003; Wilber,10 born 23 November 2004; Whitney, born 1 November 2006; Margot, born 17 April 2010; and Ethan,11 born 30 March 2011. 12 In 2011, Gertrude and Gaston acquired land near a regional town. The intention was to build a house on the land.12 In the meantime, the family continued to live at another property which they owned in another town (the old house). 13 Sometime around mid-July 2011, Gertrude commenced a relationship with the appellant. This caused the breakdown of her relationship with Gaston. When Gaston became aware of the affair, he moved out of the old house. However, he and Gertrude proceeded with obtaining a building licence for the land they had acquired. This resulted in the transporting of a large eight-bedroom weatherboard house from another town (the new house). This occurred between September and October 2011. Gaston did not live at the new house at any time.13 14 Gertrude and her eight children eventually moved into the new house. Initially, some of the facilities at the property were rudimentary, as plumbing had yet to be installed.14 The appellant was a regular visitor to the new house, before moving to live there permanently. Gertrude and the appellant were married on 13 September 2014.15 15 At the time of commencing his relationship with Gertrude, the appellant had three children of his own from a previous relationship. He did not have custody of those children, though they came to visit on occasion. The appellant and Gertrude had a further four children from their union, who also lived at the new house. 16 There was animosity between Gaston, on the one side, and the appellant and Gertrude, on the other. This resulted in contested Family Court proceedings and applications for violence restraining orders. At all material times, Gertrude retained custody of the children, and they 8 A pseudonym. 9 A pseudonym. 10 A pseudonym. 11 A pseudonym. 12 ts 604. 13 ts 1005 - 1006. 14 ts 609 - 610. 15 ts 698; exhibit 30. -- 12 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 13 continued to live with her and the appellant until the events described below. 17 Counts 1 to 7 relate to River.16 River reported that inappropriate conduct by the appellant commenced soon after the appellant moved into the new house. These offences were alleged to have occurred on four occasions between October 2011 and December 2015, when River was aged between 9 and 13 years. These incidents were all alleged to have occurred in the new house. 18 One of the incidents (count 6) occurred after River was talking to her then boyfriend on a landline telephone, and she believed that the appellant was listening on another handset. The boyfriend's statement was read into evidence. His evidence was that he had had telephone conversations with River of the type which she said had occurred before the offence. 19 Counts 8 to 12 relate to Rowan.17 These offences were alleged to have occurred on two occasions between June 2013 and December 2016, when Rowan was aged between 10 and 13 years. These offences were also alleged to have occurred in the new house. 20 Counts 13, 14, 17 and 18 relate to Whitney.18 These offences were alleged to have occurred on different days between January 2013 and December 2018, when Whitney was aged between 6 and 12 years. Counts 15 and 16 were discontinued prior to the trial. Counts 13 and 17 were alleged to have occurred in the new house. Count 14 was alleged to have occurred in a vehicle driven by the appellant. Count 18 was alleged to have occurred in a shed at the rear of the new house. 21 In September 2020, the appellant surreptitiously placed a mobile telephone in a bathroom of the new house to record Whitney whilst she was showering. Whitney was aged 13 at the time. The telephone was discovered by Whitney, and she reported the matter to the police. This resulted in the laying of two charges of attempted indecent recording (as there were two such incidents), to which the appellant pleaded guilty some time prior to the trial of the present matters. Evidence of these offences was relied on by the prosecution to show that the appellant had a sexual interest in Whitney, and a preparedness to act on that interest. 16 ts 605 - 609. 17 ts 610 - 612. 18 ts 612 - 614. -- 13 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 14 22 Counts 19 to 27 relate to Margot.19 They were alleged to have occurred on six occasions between April 2017 and February 2021, when Margot was aged between 7 and 10 years. Counts 19, 20 and 27 were alleged to have occurred in the new house. Counts 21 to 23 were alleged to have occurred on an occasion when the appellant stopped the vehicle he was driving, a Toyota HiAce (HiAce), and told Margot to get into the back of the vehicle with him. Count 24 was alleged to have occurred at a winery, where the appellant worked. Counts 25 and 26 were alleged to have occurred at an abandoned house, a short drive from the new house. The police were not able to locate this abandoned house. Defence case 23 The defence case was that none of the offences or alleged conduct (other than the two offences involving use of the mobile telephone, to which the appellant had pleaded guilty) had occurred. The attempted indecent recording offences were contrasted with the allegations because the latter were contact offences, whereas the recording offences involved no physical contact. 24 It was said to be implausible that the alleged acts could have occurred in such a busy, crowded house.20 It was argued that it was unlikely that there would have been opportunities to commit such offences without being discovered. 25 Inconsistencies in the evidence of the complainants were also relied on, as was a negative attitude towards their mother. It was suggested that the complainants blamed their mother and the appellant for the break-down of their parents' marriage.21 26 The defence case was that there were similarities between incidents involving different complainants and that this suggested concoction. There was also delay or a failure to complain and this was said to be consistent with a later agreement by the complainants to fabricate the allegations. 27 The defence case was that the children had been influenced by their father, Gaston, to make false complaints.22 Gaston was said to be 19 ts 615 - 619. 20 ts 1053 - 1054. 21 ts 1097 - 1098. 22 ts 1066 - 1067. -- 14 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 15 vindictive and obsessive about Gertrude. He was said to be a manipulative former husband who had 'weaponised' his children. Relevant evidence 28 The evidence against the appellant was primarily that of each of the complainants. This included child witness interviews with Whitney and Margot and pre-recorded evidence of all four complainants. 29 The State relied on the evidence of each of the complainants as evidence that the appellant had a sexual attraction to young female children in his care, admissible in respect of other counts. The trial judge ruled that only the evidence of offences that had occurred in the family home could be used in this way. 30 It is necessary to summarise the evidence of all four of the complainants. This is because whilst ground 1 expressly relates to River, the cross-admissibility of the evidence for propensity purposes means that any assessment of River needs to be viewed in light of the evidence of the other complainants. Further, in submissions, the appellant also sought to challenge the truthfulness of the other complainants. Ground 2 also relates to all of the counts on the indictment (at least insofar as Gertrude's proposed new evidence is concerned). 31 It will also be necessary to refer to the evidence of Gaston and the appellant to show the extent to which allegations of fabrication and coaching of the complainants were ventilated at the trial. River 32 River said that she was about 8 years old when her parents separated. After the separation she, her mother and her siblings moved into the new house. The appellant also came to live with them. The new house had eight bedrooms and two living areas, one of which was adjacent to the kitchen.23 There were two bathrooms, neither of which were operational when they first moved in. There was a bath on the back verandah. The appellant dug a hole about 20 m from the back of the house that operated as a drop toilet, with a crate for a seat. 33 River said that, when they first moved into the new house, the appellant would watch her through the laundry window while she was in the bath. He also stared at her when she was using the outside toilet. 23 ts 416 - 417; BGAB 198 - 199. -- 15 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 16 34 River said that she recalled a time when the appellant came to her bedroom and woke her up. She was sharing the room with some of her other siblings. The appellant took her by the hand and led her to the kitchen.24 He gave her Tim Tams and undid her pyjamas. She was wearing heavy cotton purple pyjamas. He touched her chest under her pyjamas (count 1). He pulled down her pyjama pants and put his fingers in her vagina (count 2). After doing this, he pulled up her pants, did up her top, and took her back to her bedroom. She recalled that she fell asleep with a Tim Tam melting in her hand. 35 River said that touching of this nature happened approximately eight times. Sometimes the touching occurred when she was still in her bed. There were also occasions when she was touched by the appellant during the day. 36 River said that the first time something happened during the day was when the appellant was sitting on a chair in front of the computer in the lounge room. He put her on his lap. She was wearing a skirt, underwear and a T-shirt. He moved his left hand up her shirt and squeezed or massaged her breast, both under and over her bra (count 3).25 He moved his right hand up her skirt and massaged the outside of her vagina through her underwear (count 4). She could hear him breathing and making moaning noises. She ran from the room. 37 On another occasion, the appellant came into River's bedroom and sat on her bed. She was sharing a bedroom with Rowan and Whitney at this time. He pulled back the covers, took down her pants and inserted his finger into her vagina (count 5).26 She said that, as he was doing this, she could hear him making grunting or moaning sounds. He then stopped, threw the blanket back on her and walked out of the room. She thought this had happened more than once. She said this continued until she moved to a top bunk. 38 On another occasion, when River was in year 7 at school, she was talking to her boyfriend on the home landline telephone, whilst in her bedroom. There were two handsets, which were kept in different parts of the house. She said that she and her boyfriend had been talking for hours, and the discussion had turned to 'pre-teen … sex talk'.27 She had been wearing very short shorts and skirts to school and asked whether it 24 ts 422 - 423; BGAB 204 - 205. 25 ts 424 - 427; BGAB 206 - 209. 26 ts 279 - 280; BGAB 215 - 216. 27 ts 281; BGAB 217. -- 16 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 17 'turned him on'.28 She could hear breathing noises coming from the other handset and said that she believed someone was listening in. She hung up and got into her bed. She was lying on her back. The appellant then came into the bedroom. He took the blankets off her, opened her legs and put his penis into her vagina (count 6). She kept her eyes closed. She thinks he stopped when he ejaculated. He then left the room. River said that it hurt when the appellant had his penis inside her.29 39 The next incident occurred in the lounge room. This happened a few years prior to River moving out of the house, which was just before her 17th birthday.30 She had stayed up late with her siblings to watch a movie. The others were either asleep or had gone to bed when the appellant walked through the lounge room to the kitchen. He was wearing a dark blue dressing gown. He then came up to her and she could see that the dressing gown was tied at the waist but open, so that she could see that he had nothing on underneath. His penis was erect and about 10 cm from River. He held an open packet of Tim Tams next to his penis and said, 'Do you want one?'. River was afraid that he was going to assault her as he had previously. She grabbed a Tim Tam and the appellant stood near her for a little bit longer, before walking back to his own room (count 7). 40 There were other occasions when the appellant would smack River on the bottom or touch her inappropriately in passing. There were times when he would force her to give him a hug and he would 'touch her up' or 'rub his penis' into her belly.31 41 River said that after 'the rape incident' (count 6) she was adamant about the appellant not touching her and not being alone in a room with him. She said her mother noticed this and would say that River used to be so nice with the appellant, and that she should 'get over it'.32 When she decided to leave home, the appellant stood in her way and she said, 'Don't you dare fucking touch me'. River said that she had tried reporting the abuse to a Department of Child Protection (DCP) officer but had been unable to put into words what was happening. She had 28 ts 282; BGAB 218. 29 ts 283; BGAB 219. 30 ts 284 - 286; BGAB 220 - 222. 31 ts 287; BGAB 223. 32 ts 287; BGAB 223. -- 17 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 18 also told the school chaplain, who had called her mother, who told her she was a liar.33 She eventually reported the matter to police in 2019. 42 In cross-examination, River said that she was not permitted to communicate with her father during the time she lived at the new house, except for a few supervised contacts. Her mother was very aggressive about court proceedings with Gaston and spoke of him in negative terms. This culminated in River forming the view that her mother was 'evil'. 43 River was asked about the conditions in the new house:34 Did it ever feel at times like you weren't being listened to or weren't getting enough attention from mum?---We were all being severely neglected. She would lock up food in the pantry, she would leave for long periods of time, she would physically abuse us, emotionally abuse us. She left us for long periods of time with [the appellant]. Yeah, it was a severely terrible place to be. I contemplated suicide a bunch, I was severely cutting myself every single day, multiple times a day. 44 A little later, River was asked about what she had said to the school chaplain:35 So, [River], it's the case isn't it, that when you spoke to the chaplain then, you said to the chaplain, 'I hate being at home. Mum never pays any attention to me, to what I say'?---I do not remember ever saying that to the chaplain. That is not what I remember saying to the chaplain. 45 River said that there were numerous occasions when the police or other officials came to the house to speak to the children. On these occasions, their mother knew the police were coming and 'prepped' the children. 46 It was put to River that she had told DCP officers that she was not treated well and that the other children got preferential treatment. She said:36 No. Because that's not how it was. It was kind of like dogs in a cage. One day mum would pick a favourite and then[.] 33 ts 290; BGAB 226. 34 ts 300; BGAB 234. 35 ts 302; BGAB 236. 36 ts 306; BGAB 240. -- 18 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 19 There was an interruption, before River continued: It was kind of like she would pick - like it was depending on what you would do for her, in terms of like bullying the other kids. So if you said anything out of turn, if you acted out of turn, you would get horrendously bullied, attacked by the other kids, and then it would - another day it would be another kid that would be brutally attacked by the other kids. It was just like - that was the only way to keep safe. There was no favourites. The only favourites were [the appellant] and [Gertrude's] kids - and we all loved those kids. 47 A little later, River was asked:37 So would it be unfair to say it felt like it was something continual and almost never ending for you?---Yes. That house felt like a black hole. Like a black hole?---Like time did not exist. It was just trauma after trauma. We were so desperate to get out of that house and from that farm. Okay. So if I said to you that at - at that house when you were living there, you felt neglected, you felt left out and bullied, would that all be accurate?---I was neglected Okay. And did you feel left out, did you feel bullied?---I didn't feel left out, and I only felt bullied when I was the one being bullied. It was more of like, it was a collective trauma - we're all just trying to stay safe and keep - keep each other safe, but we're all being pitted against each other. It was all like, what can you do to make mum treat you well that day? And sometimes that meant bullying another kid in our family. 48 It was put to River that the events she referred to had not occurred, that there were many other people in the house, and that movements in the night would have been noticed because of the bare floorboards. It was also suggested that she could have run for help. River maintained that the incidents had occurred as she had described them. She said she could not ask her mother for help as her mother would not believe her. Her mother had called her a liar when she tried to speak up. In effect, she had no one to run to. 49 River was asked whether she had cried out or tried to push the appellant away during the count 6 incident. She said that she 'completely left [her] body' and tried not to be present.38 She said that, even though her mother was in the next room, her mother would listen to music or have the television on and 'never heard anything'. The 37 ts 307 - 308; BGAB 241 - 242. 38 ts 321; BGAB 255. -- 19 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 20 appellant was always walking around the house late at night and her mother said this was because he was restless and did not sleep well. River did not go to her mother after the count 6 incident because 'she had no love for us'.39 50 It was put to River that she strongly disliked the appellant. She admitted that, when he was abusing her, she 'planned his murder in [her] head' and that she wanted him dead.40 She was asked whether it made her angry that the appellant and her mother were still in contact. She said that it made her feel sad for the other children under their care. She agreed that she would like to see the appellant in gaol. When asked whether she was prepared to do anything to achieve that, she said that she was prepared to tell the truth and go thorough traumatic events that had caused her to have PTSD, but that she was not prepared to lie, and that she did not need to lie because 'what happened, happened'.41 51 It was put to River that she held the appellant responsible for breaking up her parent's marriage. She denied this and said that she held her mother responsible. She denied holding the appellant responsible for the years of having no contact with her father. She agreed with a proposition that she felt very neglected by her mother.42 Rowan 52 Rowan said that she had lived at the new house with her mother, the appellant, and her siblings, until moving out in September 2020.43 By the time Rowan moved out of the house, River had also stopped living there. River moved out in February 2019. Her older sister, Dominique, had also moved out, but that was when Rowan was much younger. 53 Rowan said that when they first moved into the new house there were no working bathrooms. There was a bathtub on the back verandah that had to be manually filled. There were also no functioning toilets. Her mother and the appellant dug a hole in the ground, about 15 m from the house.44 There were logs over the hole to make a makeshift seat. 39 ts 322; BGAB 256. 40 ts 324; BGAB 258. 41 ts 324; BGAB 258. 42 ts 326; BGAB 260. 43 ts 341; BGAB 123. 44 ts 345; BGAB 127. -- 20 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 21 54 Rowan said that things started to happen with the appellant shortly after he moved in.45 It was not too bad at first. Rowan got special treatment, like getting gifts all the time, and the appellant would say it was because she was the prettiest girl or the best girl. He then started 'being touchy' with her by pulling her onto his lap or taking opportunities to touch her. Rowan said that at this stage the touching was not sexual and included being touched or held over her clothes. 55 After the family moved into the new house, the first incident that Rowan could recall occurred when her mother had gone to pick up her older sister, Dominique, from work one evening. Rowan asked the appellant to get a television down from a shelf in a closet.46 He got the television down and came to her room and sat on her bed. He pulled her onto his lap and said something to the effect that he would do this for her if she did something for him. He then started touching her under her clothes, but on top of her underwear. He touched her on the chest, and she indicated that this was in the breast area (count 8). He also touched her vagina (count 9). He then took her hand and made her touch his penis over his clothing (count 10). 56 Rowan said that incidents of this nature happened more than once, and that it started to happen 'basically every night'.47 On each occasion, it would occur in her bedroom and involved the appellant touching her sexually or getting her to touch him. She said that he would touch her on her chest, her vagina, and her bottom, and would also try to kiss her. She tried to stop him by sleeping with her younger sister, Margot, in a different bedroom. She thought that she was 11 or 12 years old at the time. 57 Rowan said that sleeping in Margot's room did not help.48 The first night she slept there, the appellant came into the room when Margot and Whitney were already asleep. The appellant pulled up Rowan's shirt and put his mouth on her breast (count 11). He then put his hand down her pants, inside her underwear, and put his fingers inside her vagina (count 12). She said that she was too scared to move. The appellant 'just did what he wanted to do' and then left.49 Rowan said that incidents like this happened on more than one occasion. She thought that maybe sleeping on the top bunk in the room would be a 45 ts 345 - 346; BGAB 127 - 128. 46 ts 347 - 350; BGAB 129 - 132. 47 ts 352 - 353; BGAB 134 - 135. 48 ts 356 - 357; BGAB 138 - 139. 49 ts 357; BGAB 139. -- 21 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 22 better solution, and so she moved to that bunk. She would also sleep in a sleeping bag on the top bunk, which Rowan said did help. 58 After several months, Rowan moved to a different room and asked her mother for a lock on her door. She used that lock whenever she was inside the room. 59 Rowan said that whenever the appellant was home, he would wear a dressing gown and would not wear anything underneath. She said that he would open the dressing gown and expose himself to her.50 She did not like leaving her room because, whenever she came out, he would touch her bottom, or try to smack it, or make sexual comments. Once she had the lock on the door, he would try to get in. She had a sewing machine, which she placed against the door. She said that the sexual comments included references to her appearance and that he wanted to do sexual things to her. 60 Rowan said that the last occasion where something happened with the appellant was when she was in the home office. She was sitting at the computer, and the appellant came in wearing sweatpants. He pulled his penis out and just stood watching her.51 Nothing else occurred, and he finally walked away. 61 Rowan said that she also saw something happen to Margot. Margot was in the kitchen, standing on a stool, putting something into the microwave. The appellant came up behind her and put his hand up her skirt. This occurred when Rowan was 15 years old. 62 Rowan recalled that, when River moved out, River and her mother had a big argument. River was cutting and hurting herself, and said that it was because of the appellant, though she did not specifically say why. 63 In cross-examination, Rowan agreed that, after her mother and father separated, she did not get to see her father (Gaston) regularly for about 10 years. She missed her father and said she was confused.52 Rowan agreed that life was sometimes quite hard in the new house. 64 Rowan agreed that, after she became aware that the appellant had been attempting to film Whitney in the bathroom, her father (Gaston) sent her text messages. Her father said that the appellant was 'an evil 50 ts 359 - 360; BGAB 141 - 142. 51 ts 361 - 362; BGAB 143 - 144. 52 ts 364 - 365; BGAB 146 - 147. -- 22 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 23 sicko'.53 She responded, 'Do you think I could charge him?'. Her father's response was, 'Every complaint helps'.54 Her father then stated, 'When you kids come and stay, [Whitney] and [Margot] won't be going back'. After the filming incident, Rowan was removed from her mother's care and placed with her father. 65 Rowan said that when Whitney called the police after discovering the mobile telephone in the bathroom and the police had come to the house, she approached an officer and made a complaint.55 The officer said that he would call her, but then she was moved to live with her father. When she spoke to the officer at the house it was before she had the text exchange with her father. 66 It was suggested to Rowan that her evidence regarding what the appellant had said when he moved the television was not consistent with what she had said in her statement to police. In that statement, she agreed that she had said that the appellant said words to the effect, 'I'll do it if you promise to be a good girl'.56 She said that what he said was more like, 'He'd do it for me if I'd be a good girl and do something for him'.57 She accepted that only part of that was recorded in her police statement. She denied that she made up the rest in her evidence. She accepted that in her police statement, she had said that she could not recall whether the appellant placed her hand on his penis outside or his clothes or inside his clothes. She said that, in some respects, her memory had improved because it was triggered by certain things. She denied making details up. 67 Under cross-examination, Rowan maintained that the incidents that she described had occurred. She agreed that she did not yell out or tell anyone what had happened. 68 Towards the end of the cross-examination, the following questions were put to Rowan:58 All right. I'm going to suggest to you that there are some reasons why you've made these complaints. All right. So would you - would you accept that these complaints are false?---No. 53 ts 366; BGAB 148. 54 ts 368; BGAB 150. 55 ts 369; BGAB 151. 56 ts 375 - 376; BGAB 157 - 158. 57 ts 380; BGAB 162. 58 ts 392; BGAB 174. -- 23 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 24 I'm going to suggest to you that you've made false complaints because your dad has told you that every complaint helps, is that right?---No. And you've also made these allegations because you hold [the appellant] responsible for the breakdown of your parent's marriage and the separation from your dad - - -?---No. - - - subsequent to that?---When my parents were together they argued all the time, I didn't like them together. All right. I'm also going to suggest to you that what you say about [the appellant] is also influenced by things your sister - things your sister's, including [River], have said to you?---No. All right. The allegations you've made about [the appellant] are simply untrue, aren't they?---No. 69 In re-examination, it was clarified that in her police statement, Rowan had referred to the appellant making her touch his penis 'over clothes'.59 70 Rowan said that she did not make any noise or yell out at the time of the incidents because she 'was the kind of kid that didn't talk and was very quiet'.60 She did not believe that her mother could help her. She did not call out to Margot during the second incident because she did not want Margot to have to go through the same thing. She did not tell her siblings in the morning because she was afraid that, if she talked about it, things would get worse. She did not feel that her mother would help because she knew that her mother had caught the appellant molesting Margot and had not taken any action. Whitney 71 Whitney took part in specialist child interviews on 26 October 2020, 19 October 2021, and 20 April 2022. Those interviews were tendered as part of her evidence-in-chief. The first interview was short and in general terms. It is not necessary to summarise the contents of that interview. 72 In the second interview, Whitney said that she was touched sexually by the appellant from the time that she was in year 1 until she was in year 6 at school. She described an incident when she was in year 1, when the appellant put her on his lap and touched her vagina 59 ts 405; BGAB 187. 60 ts 406 - 407; BGAB 188 - 189. -- 24 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 25 under her clothes. She believed she was 6 years old at the time.61 This occurred in her bedroom at the new house. 73 Whitney said that there was an occasion when she was in year 6 when she saw the appellant touching her sister, Margot. It was following Christmas, and she was playing on an Xbox that she and Margot had received at Christmas. Margot was sitting on the lower bunk, and the appellant was sitting next to her. She saw that his hand was down Margot's pants. A week later, she got into a fight with the appellant and threatened to tell her mother what he had been doing to Margot. 74 Whitney said that there was another incident when she was in year 6, which was the last incident in relation to her, when she was in the shed with the appellant and he was teaching her to play the drums. They were alone in the shed together. He pulled his penis out and said, 'Oh, and then maybe we can play later' (count 18).62 75 Whitney said that there was another incident when she was in year 4. She recalled that her mother had blonde streaks in her hair at the time. It was the first time that her mother had her hair done that way. Whitney had got up in the night to go to the toilet, and her mother had told her to go to bed. The appellant entered her room and touched her vagina underneath her clothes (count 17).63 76 In the third interview, Whitney gave a more detailed account of the incident involving her sister, Margot. Whitney said that she was playing the Xbox while sitting on the top bunk. Margot and the appellant were sitting on the lower bunk. After Whitney finished her game, she leaned over to hand the controller to Margot and saw that the appellant had his hands in Margot's pants.64 She spoke to Margot about it a couple of days later and said that she knew what the appellant was doing to Margot. Margot begged her not to tell anyone, and Whitney said that she would not as it was happening to her too. Margot was crying. They agreed not to tell anyone because no one would believe them, and they were ashamed. Whitney told a teacher that the appellant had tried to kiss her and later told a friend that the appellant had 61 Child Witness Interview with Whitney, dated 19 October 2021, 4 - 5, 8 - 9; BGAB 514 - 515, 518 - 519. 62 Child Witness Interview with Whitney, dated 19 October 2021, 8 - 9; BGAB 518 - 519. 63 Child Witness Interview with Whitney, dated 19 October 2021, 10 - 11; BGAB 520 - 521. 64 Child Witness Interview with Whitney, dated 20 April 2022, 4 - 13; BGAB 531 - 540. -- 25 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 26 touched her, but did not go into detail.65 At this point, she was thinking about running away from home but decided not to. 77 Also in the third interview, Whitney referred to an incident that occurred when the appellant helped her to play a movie on a new television. The television was in the bedroom which she shared with Margot. The appellant sat on cushions in front of the television and placed Whitney on his lap. He put his fingers underneath her clothes and inserted them inside her vagina. When Whitney tried to flee, he grabbed her legs so that she could not move (count 13).66 78 In her oral evidence, Whitney referred to another incident which had occurred when her mother (Gertrude) was pregnant with her younger brother. It was a school day, and she was home sick from school. She was pretty sure that it was winter because it was cold, and she had a head cold. She was in a vehicle with Gertrude and the appellant. They dropped Gertrude off at the hospital for a pregnancy check-up. The appellant asked what he should do with Whitney whilst they were waiting, and Gertrude said, 'Do whatever you want with her'.67 He then drove to a place where he pulled off the road. Whitney thought they were in the HiAce because there was a long seat at the back, and she was sitting there. He pulled down her pants and underwear and inserted his fingers into her vagina (count 14). He then took her to a friend's house, where she watched television. 79 In cross-examination, Whitney agreed that, during the time they were living in the new house, it seemed like her mother did not have much money. She agreed that there was a lock on part of the pantry so that the food did not run out. 80 Whitney agreed that, in September 2020, she found the appellant's mobile telephone in a laundry basket whilst she was in the bathroom, showering. Her mother (Gertrude) was out at the time, and she sent a text to her telling her what she had discovered.68 Almost immediately afterwards, she rang the police. She then called Gertrude and, a little later, her father (Gaston). It was put to her that, by May 2021, she was aware that the appellant had been charged and had pleaded guilty to offences of attempting to film her indecently. She did not accept that Gaston had told her that she would get compensation money.69 She 65 Child Witness Interview with Whitney, dated 20 April 2022, 17 - 18; BGAB 544 - 545. 66 Child Witness Interview with Whitney, dated 19 October 2021, 5 - 6; BGAB 515 - 516. 67 ts 451 - 453; BGAB 74 - 76. 68 ts 457 - 458; BGAB 80 - 81. 69 ts 464; BGAB 87. -- 26 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 27 was shown a document containing text messages between herself and Gaston. Although she could not recall it, she accepted that she had sent a text message to Gertrude in which she referred to Gaston saying that they were all going to get money from the appellant for everything that he did, but that she had not heard anymore about it and was worried that Gaston might be getting the money.70 81 Whitney agreed that, after the filming incident, she spoke to her sisters, River, Rowan, and Margot, but denied that they had 'compared notes'. She did not agree that they spoke about allegations that they could 'make up' about the appellant. She denied that her father (Gaston) had encouraged her to make complaints about the appellant to the police. She accepted that she went to live with Gaston on 22 September 2020.71 The child witness interviews occurred after she moved in with Gaston. That was the first occasion that she made a complaint about the appellant touching her in a sexual way. 82 In cross-examination, Whitney maintained that each of the incidents as described had occurred. In regard to the incident that occurred in the HiAce, it was put to Whitney that there was insufficient space in the vehicle:72 And when you say that he's put - [the appellant] has put his fingers into your vagina, do you say that he was standing, sitting? In what position?---Sitting down. He was sitting down. And was that in one of the seats on - on the bus that you were in?---Yes. Okay. And while this was happening, what position were you in? Were you standing up? Were you sitting down?---Sitting down. Okay. I suggest to you given how tightly packed and how little space there is in that vehicle, [the appellant] wouldn't have been able to put his fingers into your vagina while the two of you were in those positions, could he?---That's incorrect. It was a bus. Just to clarify, when you say it was a bus, do you agree that it was - it was a Toyota - it was a Toyota Hi[A]ce? It wasn't like a commercial bus like a school bus?---Yes. I agree with that. Okay. All right. In fact, there's never been any sexual contact between you and [the appellant] in any vehicle, has there?---There has. 70 ts 468; BGAB 91. 71 ts 471; BGAB 94. 72 ts 481; BGAB 104. -- 27 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 28 83 Whitney agreed that the first time she had told anyone about the HiAce incident was in January 2022, prior to the trial. 84 Towards the end of cross-examination, Whitney was asked:73 Okay. Is it the case that you have spoken, in particular with [Margot], about complaints to make up?---Can you please say that again. Is it the case that, in particular, you have spoken with [Margot] about making incidents up?---No. [Whitney], are you okay to keep going or do you need a quick break?--- No, I'm okay, thank you. All right. Is it your evidence that the entire time that [the appellant] was sexually offending against you, nobody came to assist you in the family home?---No. And other than the offending that you've described with the recording, you've never ever told your mum until after you moved out. Is that correct??---That's correct. Would you agree that the only people that you told before 2020 about [the appellant] touching you inappropriately were some school friends? --Correct. And do you agree that you told them that, just to get a reaction?---No, I do not agree with that. 85 It was put to Whitney that she had been able to call the police and her father (Gaston) in regard to the filming incident, but had not told anyone about the sexual touching. She said that she did not have a telephone at the time of the sexual touching. She did not tell her brothers and sisters at that time because she was afraid. She was then asked:74 All right. [Whitney], I'm going to suggest that the allegations that you've described, that's the result of suggestion from your dad and your sisters, would you agree with that?---No, I wouldn't. All right. Would you agree that things were pretty grim living with your mum, and you didn't want to keep moving - you didn't want to keep living with her after September 2020?---Correct. Okay. And when you moved out in September 2020, it's the case, isn't it, that you've never had to move back in with her, is that right?---That's correct. 73 ts 487; BGAB 110. 74 ts 492 - 493; BGAB 115 - 116. -- 28 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 29 Okay. And would you agree that when you were living with mum, you didn't have much face to face contact with dad?---Correct. Okay. And can you tell the court how that made you feel. Did you miss your dad?---I had mixed feelings. Okay. But in terms of those mixed feelings, was one of those emotions that you missed your dad at the time?---Yes. Okay. And would you agree that before you moved out in September 2020, you'd - sorry, I retract that, I've asked that. My apologies. All right. [Whitney], were you angry at mum and [the appellant] that you didn't get to see dad very much?---Not given the circumstances, no. I'm going to suggest to you that you were angry at them and that's another one of the reasons why you've made these allegations up, is that correct?---Incorrect. 86 In re-examination, when [Whitney] was asked why she did not tell the police about the sexual touching when they took her statement about the indecent filming, she said that she thought that she would get into trouble because that is what the appellant had told her.75 She also thought that her mother (Gertrude) would not be on her side because she had instantly taken the appellant's side regarding the indecent filming and did not believe her. Her mother was extremely frustrated when she found out that Whitney had called the police. 87 When asked why she did not scream out at the time of the first incident, Whitney said that she did not know at the time that it was wrong, and she later thought that she would get into trouble. The appellant had told her that if she revealed what was occurring, he would go to gaol and she would also go to gaol. Margot 88 Margot gave four child witness interviews on 18 February and 19 October 2021, and 18 January and 20 April 2022. Those interviews were tendered as part of her evidence-in-chief. 89 In the first interview, Margot said that the appellant 'did stuff' to her,76 and that she was scared of him. She said that the appellant had made her kiss him, and that this had first occurred when she was 'really small'.77 He had told her that she could never tell anyone because they 75 ts 494 - 495; BGAB 117 - 118. 76 Child Witness Interview with Margot, dated 18 February 2021, 4 - 5; BGAB 391 - 392. 77 Child Witness Interview with Margot, dated 18 February 2021, 6; BGAB 393. -- 29 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 30 would both go to gaol. Because she was very small, she believed him. She thought she was about 4 at the time. Margot said that all that she remembered about the incident when she was 4 years old was that the appellant pulled down his pants, and then pulled down hers.78 She recalled being scared and wanting to escape. She said that she needed to go to the toilet, and the appellant told her that she 'better be back'.79 She said that on the occasions that he kissed her, he would tell her to kiss him, and when she refused, he would kiss her anyway. He would kiss her on the lips. She could not recall any specific times when this occurred. 90 Margot said that she knew that the appellant did things to Whitney, and Whitney knew that he did things to her. Whitney told her about an occasion when she was under the sheets and had tucked them tight, and the appellant had grabbed her. However, that was all that Margot could remember. Margot was pretty sure that she had told her teacher and the principal at her school about what was occurring. She recalled an occasion when the appellant had put her on a bed, pulled down her pants, and touched her. 91 In the second interview, Margot said that the appellant had made her do 'repulsive things', like 'suck on his doodle and touch us and stuff in private places'.80 She said that these things had happened on more than one occasion. 92 Margot said that the last time something happened was when the appellant took her to his workplace. He made her tell her mother that she wanted to go with him. He threatened her that if she did not say this, he would 'do even more stuff to me'.81 When they were halfway there, Margot said that she had an upset stomach and wanted to go home, but the appellant refused to take her. When they got to his workplace, he took her to a shed, took off his pants, and made her suck his penis (count 24).82 Afterwards, he pulled up his pants and took her to an office, where she sat colouring while he went off and did other jobs. She thought she was aged 10 at the time. This occurred during school holidays in January. 93 Margot said that she could recall another incident when she was playing Xbox in her room and the appellant came in. Whitney was on 78 Child Witness Interview with Margot, dated 18 February 2021, 7; BGAB 394. 79 Child Witness Interview with Margot, dated 18 February 2021, 8; BGAB 395. 80 Child Witness Interview with Margot, dated 19 October 2021, 4; BGAB 410. 81 Child Witness Interview with Margot, dated 19 October 2021, 4; BGAB 410. 82 Child Witness Interview with Margot, dated 19 October 2021, 5; BGAB 411. -- 30 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 31 the top bunk and also playing with the Xbox. The appellant took his penis out from his underwear and made Margot suck it (count 20).83 Whitney looked down to pass the controller and saw what was occurring. Margot thought that she was in year 3 when this occurred, and that it was just after Christmas because that was when they got the Xbox. 94 Margot recalled another incident that occurred following her having a sleepover at a friend's house. Her friend's mother told her that the appellant was coming to pick her up. She started to cry, went to the door, and said that she had a stomach ache and wanted to call her mother.84 She called her mother (Gertrude) and told her that she wanted her to pick her up. Gertrude said that she would, but then the appellant came in the 'bus'. As he was driving her home, he pulled into a driveway and got her to get into the back of the bus. He then touched her in the 'parts where your bathers cover'.85 He touched her on the vagina after her pants and underwear were removed, although she was not quite sure whether he had taken off her clothes. She believed she was in year 4 and was aged 9 when this occurred. She described the vehicle as 'my mum's bus'. This will be relevant to ground 2. On this occasion, the appellant touched Margot's chest beneath her clothes (count 21), and then, after her pants and underwear were removed, touched her vagina (count 22). She was screaming and crying by this stage. The appellant then inserted his penis into her anus (count 23). 95 Margot recalled another incident when the appellant took her, at night, in his utility vehicle to an abandoned farmhouse. She remembered the house being very cramped, and that there was a double bed just inside the door. On this occasion, the appellant licked her vagina (count 25).86 He then sat on the end of the bed and made her suck his penis, while she knelt between his legs (count 26). 96 In the third interview, Margot said that she had remembered occasions when the appellant had put his penis into her, and that it hurt. She recalled one occasion, during school holidays, when her mother was out shopping. The appellant brought her to his room and locked the door.87 He put towels down on the floor and put her onto the bed. He took off her underwear and put his penis into her anus. She later 83 Child Witness Interview with Margot, dated 19 October 2021, 7 - 8; BGAB 413 - 414. 84 Child Witness Interview with Margot, dated 19 October 2021, 9 - 10; BGAB 415 - 416. 85 Child Witness Interview with Margot, dated 19 October 2021, 10; Child Witness Interview with Margot, dated 20 April 2022, 27; BGAB 416, 473. 86 Child Witness Interview with Margot, dated 19 October 2021, 15 - 16; BGAB 421 - 422. 87 Child Witness Interview with Margot, dated 18 January 2022, 12 - 16; BGAB 437 - 441. -- 31 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 32 said that the appellant placed her on her back and used his hands to spread her legs apart. He held her down by her shoulder with one hand. His other hand was holding his penis. He pushed her head back onto the mattress, and she 'just stayed quiet'.88 Prior to that, she had been saying things like 'please don't'. 97 In the fourth interview, Margot provided more detail about each of the incidents, including saying that when she was picked up after the sleepover the appellant touched her breasts and her vagina.89 She said that he then took out his penis and put it into her 'bum'. She said she was crying when this occurred because it hurt. After he stopped, it continued to hurt for about 10 minutes. 98 In regard to the incident at the abandoned farmhouse, Margot said that she remembered that the bed folded out from the wall.90 99 In regard to the incident in the appellant's room, Margot said that she remembered the appellant putting his penis near to her vagina and her saying to him not to do it because it would hurt too much. He then put his penis into her 'bum'. She felt pain and wanted it to stop.91 100 Margot said that she remembered a further incident that occurred when the appellant came to her bedroom and read a book called 'Cheeky Charlie'. Whilst he was reading the book to her, he took his penis out of his pants and, using one hand to push the back of her head, forced her to perform fellatio on him (count 27).92 She believed that Whitney and two of her younger brothers were on the top bunk when this was occurring. 101 In her oral evidence, Margot gave further details about the incidents. In particular, in regard to the incident at the abandoned farmhouse, she described the appellant sitting on the bed and her kneeling in front of him. He then made her suck his penis.93 She said that she went to the abandoned farmhouse on more than one occasion. It was usually when her mother and the appellant had had a fight. 102 In cross-examination, Margot agreed that she had had conversations with Whitney and one of her brothers about her parents' separation, and that they had seemed upset. She said that River and 88 Child Witness Interview with Margot, dated 18 January 2022, 14; BGAB 439. 89 Child Witness Interview with Margot, dated 20 April 2022, 26 - 31; BGAB 472 - 477. 90 Child Witness Interview with Margot, dated 20 April 2022, 37; BGAB 483. 91 Child Witness Interview with Margot, dated 20 April 2022, 43 - 44; BGAB 489 - 490. 92 Child Witness Interview with Margot, dated 20 April 2022, 56 - 59; BGAB 502 - 505. 93 ts 154 - 156; BGAB 288 - 290. -- 32 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 33 Rowan had told her that there had been 'cheating'.94 She said that River seemed disappointed rather than upset about this. Margot was not sure how she herself felt. She later said that she felt upset too. She said she did not hold the appellant responsible for her parents' separation.95 103 Margot was then asked some questions about discussions with her father (Gaston):96 Okay. So it's the case, isn't it, dad has spoken to you - had discussions with you about mum - about [Gertrude]?---Yes. Okay. And in the course of those discussions about mum, so about [Gertrude], it's the case, isn't it, that dad has sometimes said negative things about mum?---Yeah. Okay. Can you tell the court what kind of negative things dad has said in the course of those conversations?---I'd have to think about it. Hold on. Yes. Okay. Take the time you need. 104 Margot eventually, after some interruptions, said that she could recall nothing specific. Later, she was asked whether it was fair to say that she got more attention at her father's house, from her father (Gaston) and stepmother, than she did from the appellant and her mother (Gertrude) at the new house. She agreed that that was so.97 She also agreed that her relationship with her father could be described as close. She accepted that her father's opinion was important to her, and it was also important to her to please her stepmother. 105 In cross-examination, Margot maintained that each of the incidents had occurred. In regard to the sleepover incident, the following questions were put about the vehicle:98 So mum drove the van, and the only vehicle that [the appellant] would drive was his ute; is that correct?---No. All right. I'm going to suggest to you that the only times that [the appellant] was in the van was when mum was also there. He never was in it alone with you?---No. And it's not the case that he ever drove that van, is it?---He did. 94 ts 163, 167; BGAB 297, 301. 95 ts 168; BGAB 302. 96 ts 172; BGAB 306. 97 ts 176, 178; BGAB 310, 312. 98 ts 221; BGAB 352. -- 33 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 34 106 Towards the end of the cross-examination, Margot was asked:99 All right. So, [Margot], is it the case that prior to speaking to police about all of these incidents that you've alleged, you've spoken to your sister [Whitney] on multiple occasions about stories that the two of you could come up with about [the appellant]?---No. All right. And is it the case that you have spoken to your stepmum, [Katrina],100 and your dad, [Gaston], about stories involving [the appellant] doing sexual things to you?---Only [Katrina]. All right. And you gave evidence yesterday to the effect that you agreed it was important for you to please your dad, and it was important to you what your dad thought of you; is that correct? That was yesterday?---Yeah. Okay. Do you agree that dad and [Katrina] have encouraged you to make false allegations about [the appellant] sexually abusing you to the police?---No. All right. Did you become aware in September 2020 that [the appellant] had been in trouble for trying to record [Whitney]?---Yeah. And after that happened, you got to live with your dad, [Gaston]; is that correct?---Yeah. And when you got to live with your dad, [Gaston], you didn't want to go back to living with mum?---Yeah. Okay. And you enjoy living with your dad better than you enjoy living with your mum; is that right?---Correct. Is it the case, [Margot], that you've made these stories up about [the appellant] offending sexually against you so that you can stay at dad's place instead of mum's?---No. 107 Margot denied that she had particular memories of her father (Gaston) that made her miss him and want to live with him, but she accepted that she wanted a relationship with her biological father. She was then asked:101 Okay. And effectively you knew that if you made up stories about [the appellant], you wouldn't have to live with mum any more, is that correct?---No. 99 ts 237 - 238; BGAB 368 - 369. 100 A pseudonym. 101 ts 250; BGAB 371. -- 34 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 35 Is it the case that you didn't tell anyone, [Katrina] or the police, about incidents of sexual offending with [the appellant] until after you knew about the recording with [Whitney] involving [the appellant]?---Yes. And can I suggest to you, [Margot], another reason why you've made these - sorry, I'll re-phrase that question. Can I suggest to you, [Margot], that you've made these allegations up because you're angry about what happened to [Whitney]?---No. It's the case, isn't it, that you want to see [the appellant] in gaol, is that correct?---Yes. 108 Margot was then asked whether she had made up allegations about the appellant because she was angry about River self-harming. She responded, 'No'. 109 In re-examination, Margot said that she did not tell anyone about the incidents because she was scared and because the appellant had told her she was not allowed to tell anyone. She said that she was too young at the time to know that what the appellant did was wrong. When asked why she wanted to see the appellant in gaol, she said because he had 'done really wrong things to me and he deserves to be in gaol'.102 Gaston 110 Gaston, the biological father of the complainants, was called as a prosecution witness. He commenced a relationship with Gertrude in the 1990's and they married seven years after first commencing their relationship. They had eight children together. 111 Gaston said that he found out that Gertrude was having an affair in about July 2011. The marriage was at an end by September that year. Over the following two years, Gertrude obtained four interim violence orders against Gaston. He defended those proceedings, and the orders were later dismissed. Whilst the orders were in place Gaston would drive past the new house just to let his children know he was 'still there'.103 He saw the appellant's car at the old house twice and at the new house more than a dozen times in the period from late 2011 to 2013. 112 Gaston said that Family Court proceedings were set to be finalised in 2013 with a proposed property division and arrangements regarding custody of, and access to, the children. Gaston was to have supervised 102 ts 249; BGAB 380. 103 ts 754. -- 35 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 36 access to the children for one hour per month. He was not agreeable to that arrangement. This was later varied such that he had the children every weekend, half school holidays and every second Christmas. However, a further restraining order was obtained by Gertrude, and Gaston said that by this time he was emotionally and financially spent. The effect was that Gaston had no contact with his children from 2014 to 2020 (other than the eldest, Dominique, who left home in this period).104 113 In December 2017, Gaston had decided to recommence proceedings for access to the children, however, he was working and living overseas. In 2019 he met Katrina, who became his new partner. He then returned to Western Australia and settled in a regional town in 2020 and resumed contact with his children.105 114 In September 2020, Gaston became aware of the indecent recording incident relating to Whitney when she telephoned him. Between 15 and 17 September 2020 he had a text exchange with Rowan. That exchange included a comment by him that 'every complaint helps'.106 He said it was at that time that he started to find out that other things had occurred, though he didn't know the seriousness. Rowan came to live with him on 18 September 2020. About a month later Whitney also came to live with him. Margot came to live with him from January of 2021. Disclosures were made to his partner, Katrina, and the children then spoke to the police. 115 Gaston denied that he had ever asked any of the children to make up false allegations regarding the appellant.107 He denied that he had ever threatened Gertrude with allegations unless she signed a child support agreement. 116 In cross-examination it was put to Gaston that he had obtained a restraining order against the appellant and had sent him threatening and abusive text messages. Gaston said that the restraining order had been made at the suggestion of a Magistrate. He could not recall the content of the texts, which were read out in cross-examination, but did not deny sending them. He claimed that the appellant had tried to run him off the road, had 'trashed' his car and had stalked him.108 He accepted that he had a criminal record that included offences of violence. He 104 ts 754 - 755, 760 - 761. 105 ts 762 - 763. 106 ts 765. 107 ts 769. 108 ts 774 - 779. -- 36 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 37 accepted that he blamed Gertrude for preventing him from seeing his children. 117 Gaston denied that he had encouraged the children to make false complaints to the police as part of a 'campaign' against the appellant.109 He said that he was unaware of the details of the allegations. He denied that in texting Margot 'every complaint helps' he had any concern other than for the welfare of his children. The appellant 118 The appellant gave evidence denying each of the alleged offences. 119 The appellant gave evidence to the effect that some of the surrounding circumstances of the offences did not, or could not have, occurred as stated by the complainants. He denied that he was in a de facto relationship with Gertrude prior to their marriage. He said that, because the wooden floorboards of the house were very creaky and sound would carry through the air conditioning ducts, any movement by him in the night would have been detected.110 In relation to count 6, he said that there was a landline with two handsets, but he did not see the children using it.111 In relation to count 7, he said that he did wear a dressing gown but would always wear either underwear or tracksuit pants underneath.112 He denied ever going to River's room. In relation to count 18, he said he had a drum kit in the shed, but he did not teach anyone to play it while it was located there.113 In relation to counts 21 to 23, he denied ever being in the HiAce van alone with Whitney, and denied using it other than with Gertrude, despite it having been registered to his business. In relation to counts 15 and 26, he said he had not gone to a derelict house with Margot.114 In relation to count 27, he agreed that he had read books, including one named 'Cheeky Charlie', to the children, but had not read that book to Margot.115 120 The appellant described the September 2020 attempted indecent recording offences as 'a split-second [and] very poor decision' and 109 ts 802 - 803. 110 ts 905. 111 ts 860. 112 ts 858. 113 ts 866 - 868. 114 ts 876. 115 ts 908. -- 37 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 38 stated that there was 'no sexual intent in it'.116 In cross-examination, he said that he had committed those offences out of 'curiosity'.117 Appeal against conviction - grounds of appeal 1. New Evidence I have new new (sic) evidence that was not available at the time of my trial. This evidence shows that [River] gave false and misleading testimony. The new evidence includes 1. Text messages between [River] and her mother showing her statements in court were false. 2. A Department of Communities memorandum showing no disclosures or findings of sexual harm made against me. This memorandum also shows that it was the father who first made the allegations, not [River], and that these claims were never supported by any credible evidence. 3. Other supporting documents show that [River], [Rowan], [Whitney] and [Margot] stated testimony that was false. This evidence was not available at the trial. It proves the witness was not truthful and could of (sic) changed the outcome. I ask that this evidence be accepted and the the [sic] decision be reviewed or set aside in light of these facts 2. Witnesses not called. I appeal on the ground that important witnesses were not called to give evidence at the trial. These witnesses could have provided information directly relevant to the matters before the court and may have impacted the findings. Specifically, the following witnesses were not called: 1. [Gertrude] could provide evidence regarding the troubles and threats from [Gaston] and she has never been aware of or suspected any abuse. 116 ts 879. 117 ts 913. -- 38 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 39 2. [Holly Eldershaw]118 could provide evidence regarding the fact that I never drove [Gertrude's] Hiace van unless [Gertrude] was present and on the occasions I picked up [Margot] in my ute her daughter Kelly came also. Their absence may have affected the outcome and denied me a fair hearing. Appeal against conviction - ground 1 - additional evidence 121 There are three applications for leave to adduce additional evidence. The first application, dated 16 November 2025, seeks to adduce the affidavit of the appellant sworn 17 November 2025. The second application, dated 13 April 2026, seeks to adduce an affidavit of the appellant sworn 21 April 2026. The third application, dated 15 April 2026, seeks to adduce an affidavit of the appellant sworn 21 April 2026 and an affidavit of Gertrude sworn 17 April 2026. The affidavit of Gertrude will be dealt with under ground 2. 122 The first application relates to annexures attached to the appellant's affidavit. Those annexures are as follows: (a) Text messages between River and Gertrude between 31 January 2019 and 10 May 2019 (Annexure A). (b) Text messages between River and Gertrude between 1 April 2020 and 3 April 2020 (Annexure B). (c) Messenger App messages between River and Gertrude between 13 May 2020 and 18 June 2020 (Annexure C). (d) Messages between River and Gaston between 8 June 2020 and 11 June 2020 (Annexure D). (e) Department of Communities letter dated 13 November 2019 (Annexure E). (f) Independent Children's Lawyer letter dated 15 July 2020 (Annexure F). (g) Independent Children's Lawyer letter dated 25 March 2021 (Annexure G). (h) Report by a school principal (Annexure H). 118 A pseudonym. -- 39 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 40 (i) Accommodation booking and payment receipt for accommodation in Perth on 13 January 2018 (Annexure I). (j) Receipt and certificate of attendance for a course relating to River (Annexure J). 123 It is unnecessary to refer in any greater detail to these annexures. The alleged relevance of them will be explained when summarising the appellant's submissions. 124 The second application relates to attachments to the appellant's affidavit, being: (a) Transcripts of three voice messages of Whitney for Gertrude in 2022 (Annexure AA). (b) A police running sheet and an incident report relating to an incident on 6 September 2022 (Annexure BB). (c) Photographs of the interior of the appellant's HiAce van (Annexure CC). Appeal against conviction - ground 1 - relevant legal principles 125 There is a well-established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that was available at trial or that could, with reasonable diligence, have been obtained or discovered for use at the trial.119 126 An appellate court will not allow an appeal against conviction on the basis of new evidence, as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted.120 An appellate court will not allow an appeal against conviction on the basis of fresh evidence, as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all the admissible evidence (that is, the fresh evidence and the evidence 119 Beamish v The Queen [2005] WASCA 62 [9]. 120 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA). -- 40 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 41 given at trial), a jury, acting reasonably, would have acquitted the appellant.121 127 Evidence that relates only to issues of credibility is unlikely to meet the test required for new evidence to establish a miscarriage of justice.122 This is because evidence going only to credibility will, by definition, not be direct evidence of whether the alleged criminal acts did or did not occur. Such evidence could not establish that the appellant is innocent and is unlikely to raise such a doubt that an appellate court will be satisfied that the appellant should not have been convicted. Appeal against conviction - ground 1 - appellant's submissions 128 The appellant submits that Annexures A, B and C are inconsistent with evidence that River gave about the reasons why she left home and about the extent of any continuing contact she had with her mother. 129 Annexure A is a series of text exchanges between Gertrude and River in which River refers to the fact that she is coping financially and enjoying her independence.123 Gertrude states that River remains a big part of the family and encourages River to visit. River refers to the reasons for moving out as being the size of the household and her clashes with Gertrude. The appellant relies on the fact that River does not refer to sexual abuse as a reason for leaving. The appellant submits that these messages are inconsistent with evidence that River gave that after moving out she cut off contact with her mother. 130 Annexure B is a text exchange between Gertrude and River between 1 and 3 April 2020.124 It is initiated by River and appears to be an attempt at reconciliation. There is discussion about talking to the other children and a possible meeting in Perth. The appellant appears to rely on this exchange as also being inconsistent with River's evidence that she cut off contact with her mother. 131 Annexure C is a text exchange between Gertrude and River in May and June 2020.125 It appears to relate to River babysitting some of her siblings whilst Gertrude is in hospital in labour. Again, the 121 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 301 - 302 (Toohey & Gaudron JJ). 122 Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [197]. 123 YAB 7 - 167. 124 YAB 168 - 179. 125 YAB 180 - 190. -- 41 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 42 appellant appears to rely on this exchange as also being inconsistent with River's evidence that she cut off contact with her mother. 132 Annexure D is a text exchange between Gaston and River.126 The appellant says that he obtained these texts from an Independent Children's Lawyer via Gertrude. River provides Gaston with a copy of an exchange she has had with Gertrude and says that Gertrude is a racist. She says, 'anyways fuck her up for me dad'. Gaston responds 'I'm so sorry for the actions of your mum. I'm also sorry for the time we have lost because of her, I am your dad and always will be xoxo'. The appellant relies on this exchange as being evidence that Gaston made 'the children make up false allegations'.127 133 Annexure E is a letter dated 13 November 2019 from the Department of Communities to the Director of Family Court Counselling Services.128 The letter states that allegations regarding the wellbeing of, relevantly, Rowan, Whitney and Margot, had not been substantiated. The letter states that the children had not reported any concerns and that there was no evidence of sexual harm. The appellant submits that this letter is inconsistent with evidence given by River that the children were being severely neglected. He also appears to rely on it as independent evidence that sexual abuse was not occurring. 134 Annexures F and G are letters from an Independent Children's Lawyer appointed to represent the children in proceedings in the Family Court between Gertrude and Gaston.129 In the first letter the lawyer provides an account of her interviews with, relevantly, Rowan, Whitney and Margot, and an assessment of their wellbeing. In the second letter the lawyer refers to arrangements for custody and access to the children. The appellant relies on the first letter as evidence that the children had a good relationship with him. He relies on the second letter as evidence that there could have been pressure placed on the children to complain to the police. 135 Annexure H is a series of school reports for, relevantly, Rowan, Whitney and Margot.130 The appellant relies on these reports as showing that the school had no concerns for the welfare of Rowan, Whitney and Margot. 126 YAB 191 - 192. 127 WAB 16 [14]. 128 YAB 193 - 194. 129 YAB 195 - 201; YAB 202 - 204. 130 YAB 205 - 211. -- 42 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 43 136 Annexure I is a booking record for accommodation in the Perth metropolitan area between 14 and 20 January 2018.131 Annexure J is a certificate of attendance of River at a performing arts summer school in 2018.132 The appellant relies on these documents to show that the family had a holiday at that time so that River could attend a performing arts summer school. The appellant appears to rely on this material to show that he and Gertrude were supportive of River and that she was 'a very good actor'.133 The implication is that River had the ability to present a convincing false story. 137 Annexure AA is said to be transcriptions of three audio messages left by Whitney for Gertrude. The appellant relies on a passage in which Whitney states that her father (Gaston) had accused her of talking to one of her brothers about the sexual abuse and that she should not have done so.134 Whitney states that Gaston said that as a consequence, the appellant would not go to jail and that they would be fined. The appellant highlights another passage in which Whitney states that Gaston had accused her of wanting to return to the appellant's house and that she liked what he did to her. 138 Annexure BB relates to a police call out on 6 September 2022 in relation to the same incident as Annexure AA. Whitney called police complaining that Gaston and his partner had argued with her because she had been speaking to her brother about 'other issues' and that they had physically restrained her. When police arrived, Whitney had left the house and was at the home of her boyfriend. Gaston and his partner confirmed the argument and said that their concern was that there was an active investigation into sexual abuse and that Whitney should not be speaking to her brother about it. They denied any physical restraint. No further action was taken by the police. 139 Annexure CC consists of three photographs of the interior of the HiAce bus. The appellant relies on these photographs as showing that there was insufficient space for the offences alleged to have taken place on the bus (counts 14 and 21 to 23). Appeal against conviction - ground 1 - respondent's submissions 140 The respondent submits that much of the evidence relied on by the appellant would have been inadmissible, at least in the form 131 YAB 212 - 214. 132 YAB 215 - 216. 133 WAB 11 [5]. 134 Affidavit of Donald Atkins, sworn 21 April 2026, 4. -- 43 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 44 provided.135 Much of it is hearsay. None of it is directly relevant to the facts in issue, and much of it would not be relevant to River's credibility. Some of it merely tends to provide further proof of uncontroversial issues, such as the fact that the complainants had not complained at or around the time of the offences. 141 The respondent submits that there is no indication that any of the evidence could not with reasonable diligence have been discovered at the time of the trial. It cannot be said that the appellant either lacked knowledge of, or the ability to obtain, this evidence prior to trial. The evidence is new and not fresh evidence.136 That some of it was in the possession of the appellant is evident from the cross-examination of Gaston. 142 The respondent submits that, in any event, none of the evidence could have made a difference to the outcome of the trial.137 None of it is relevant to any fact in issue. To the extent it relates to the credibility of witnesses, its probative value is extremely marginal. Appeal against conviction - ground 1 - disposition 143 Annexures A to I and AA to CC are all documents, or contain information, in existence prior to the trial. The appellant does not explain in his affidavit how he obtained these documents. It is reasonable to infer that they were retained by Gertrude and that she has provided them to the appellant. This is evidence that must either have been known to the appellant at the time of the trial or could with reasonable diligence have been obtained or discovered by him. 144 Annexure A is primarily relied on by the appellant as showing that River did not cut off contact with her mother after leaving home, as she claimed in her evidence. Whether or not River cut off contact with her mother has no direct connection to her allegations of sexual abuse. It is relevant only to her credibility as a witness on a collateral issue. 145 In any event, the impact that Annexure A could have on the credibility of River is very limited. The early messages show that River did not know who was texting her, as Gertrude was using a 'temporary number'. The exchanges are intermittent, usually initiated by Gertrude, and River's responses are often curt. Although River sometimes asks Gertrude to do things for her, like pick items up from the post office or 135 WAB 29 [27]. 136 WAB 35 [57] - [58]. 137 WAB 35 [64]. -- 44 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 45 drop off clothes, she resists any more meaningful communication and refuses to provide Gertrude with details of where she is staying. The series ends with an exchange in which River states that she and Gertrude have never had a relationship and that she has only pretended to tolerate Gertrude. 146 While the text messages in Annexure A show that there was communication between River and Gertrude after River left home, this could not materially affect her credibility. The statement in evidence by River that she cut off communication with her mother does not specify that this occurred immediately after she left home. There appears to have a gradual cutting of ties and River may have been referring to the end of that process. If that is so, there is no inconsistency. Furthermore, River's statement that she cut off all contact with her mother might well be viewed as hyperbole, intended to reflect the changed nature of their relationship and not intended to be taken literally. 147 Annexure B is an exchange that occurs in April 2020, nearly a year after River had left home. It appears to be an attempt at reconciliation with Gertrude. It is not inconsistent with River's evidence that she cut off contact with her mother after leaving home. 148 Annexure C is an exchange that occurs in May and June 2020, over a year after River left home. It relates to River babysitting her younger siblings whilst their mother is in hospital. It is not inconsistent with River's evidence that she cut off contact with her mother after leaving home. 149 There is no significance in the fact that River did not use these text exchanges to complain about sexual abuse. It was uncontroversial that River did not complain to her mother. That is unsurprising given what River said about her relationship with her mother. River had no reason to believe that Gertrude would be receptive or supportive of her if she disclosed the offending conduct. 150 Annexure D does not provide evidence that Gaston encouraged the children to make up false allegations. At most it shows that Gaston had a negative view of Gertrude's parenting and wanted to renew his relationship with River. Those things were uncontroversial at the trial. 151 Annexure E is a letter written in 2019, nearly four years after the period when the offences against River were alleged to have occurred (2011 to 2015). It was written after River had left home. Accordingly, -- 45 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 46 it says nothing about whether the children were being 'severely neglected' at some earlier time when River lived at home. It is not evidence that River was untruthful in her evidence. Nor does the fact that the letter states that allegations of sexual abuse were not substantiated assist the appellant. There is nothing to suggest that the author of the letter did anything more than interview the children and their parents. It was not in issue at the trial that the children referred to in the letter (relevantly, Rowan, Whitney and Margot, who were still living at home at the time) did not report the abuse until 2020 and 2021. 152 The appellant's focus on evidence by River that she and the other children were neglected overlooks the way in which this evidence came to be led at the trial. This evidence was given in response to questions put in cross-examination. The apparent purpose of the questions was to suggest that River had some motive to lie about the sexual abuse. The point was not to establish as a fact whether there had been neglect, but to elicit River's feelings in that regard. The evidence that the appellant now seeks to adduce regarding whether or not there was neglect as a fact is thus not to the point, and would not have advanced the defence case put at trial. In any event, that evidence amounts to no more than a contrary opinion that would not be admissible, as it would not be relevant to any fact in issue at the trial. 153 Annexures F and G contain no admissible evidence. They are letters written for the purpose of conveying the impressions and opinions of the Independent Children's Lawyer. The fact that at the time the first letter was written the lawyer did not express any concerns relating to sexual abuse is unsurprising since the children she interviewed did not report it to her. The second letter does not at all assist the appellant given that by that time the abuse had been reported and the letter notes that the police would be concerned if the appellant had any contact with the children. 154 Annexure H contains no admissible evidence. It merely provides the impressions and opinions of teachers at unidentified dates (assuming it is in fact what it appears to be). Even if these reports were admissible, they are of no relevance in circumstances where there was no suggestion that any of the children had disclosed the relevant details of the sexual abuse to their teachers. 155 Annexures I and J add nothing to the evidence available at trial. The fact that the family booked accommodation in Perth in January 2018 and that River attended a performing arts program at that -- 46 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 47 time does not contradict anything said by River in her evidence and does not make it any more or less likely that the abuse she alleged had occurred. The implication that River is more likely to be a convincing liar because she has acting talent is not an inference that could properly be drawn. 156 Annexure AA, assuming it is an accurate transcription of audio messages left by Whitney, is not inconsistent with her evidence and does not establish that the allegations were fabricated. There is nothing in the messages to suggest that the allegations are untrue or that Gaston has pressured Whitney to make them. At best, these messages show that the relationship between Whitney and Gaston was sometimes fractious. They add nothing to the evidence available at the trial. Annexure BB falls into the same category. 157 Annexure CC does not establish that the offences described by Whitney and Margot as having occurred on the bus could not have occurred as alleged. Both Whitney and Margot referred to the relevant offences occurring in the back of the bus and it is not clear that the photographs depict the correct part of the bus. Even if they do, it is not obvious why the offences would have been impossible. Further, it was put to Whitney in cross-examination that there was insufficient room in the bus for the offending against her to have occurred and she denied it. There was no attempt to use photographs to make the point that the appellant now seeks to make. 158 In his affidavit sworn on 21 April 2026, the appellant also refers to what he describes as discrepancies in the evidence of the complainants. These are submissions that were either made at the trial or could have been made. They do not advance the ground of appeal that there has been a miscarriage of justice based on the new evidence. 159 In the same affidavit, the appellant refers to documents that were contained in the prosecution brief that were not adduced in evidence and that he now wishes to rely on. These are all matters that were available to the appellant at the time of the trial. Some of them were referred to in cross-examination. They do not advance the ground of appeal that there has been a miscarriage of justice based on the new evidence. 160 The additional evidence relied on by the appellant is new evidence, not fresh evidence. It is evidence that must either have been known to the appellant at the time of the trial or could, with reasonable -- 47 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 48 diligence, have been obtained or discovered by him. Much of the evidence is irrelevant or adds nothing to the evidence that was adduced at the trial. None of the evidence, either viewed separately or as a whole, establishes that the appellant is innocent or raises such a doubt that this court could be satisfied that the appellant should not have been convicted. 161 The applications to adduce the additional evidence should be refused. 162 This ground has no reasonable prospect of succeeding and leave to appeal on this ground should be refused. Appeal against conviction - ground 2 - additional witnesses 163 In his submissions the appellant refers to statements made by Gertrude and Ms Eldershaw that were contained in the prosecution brief. Gertrude provided four statements to the police. They are dated 23 October 2019 (the first statement), 16 September 2020 (the second statement), 24 February 2021 (the third statement) and 22 March 2024 (the fourth statement). Ms Eldershaw provided one statement dated 17 August 2022. 164 In the appellant's application of 15 April 2026, he also seeks to rely on an affidavit of Gertrude sworn on 17 April 2026 'in support of [his] appeal'. It is not clear whether the affidavit of Gertrude is relied on as further additional evidence in respect of ground 1, or to show that the failure to call Gertrude caused a miscarriage of justice in respect of ground 2 (or both). As there can be no suggestion that anything said by Gertrude is fresh evidence, there is no material difference in the tests to be applied. If the failure to call Gertrude did not occasion a miscarriage of justice, then it could not possibly meet the test for new evidence. In those circumstances, it will be sufficient to consider the affidavit in the context of ground 2. 165 There was no suggestion at the trial that the prosecution should call either of the witnesses. The appellant's counsel referred to consideration being given to Gertrude being called as a defence witness, but it would appear that a decision was made not to do so.138 138 ts 950, 966 - 968. -- 48 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 49 Gertrude 166 The first statement is a very short one in which Gertrude states that she is aware of the allegations made by River and that River had never told her about anything inappropriate happening between her and the appellant. She goes on to say that she had never seen the appellant act inappropriately with any of the children. 167 The second statement provides an account of the circumstances in which Whitney called the police after finding the appellant's mobile telephone in the bathroom. She spoke to the appellant about the allegations of attempted indecent recording on a number of occasions. He was dismissive and, later, angry, saying that he was 'sick of all these accusations'.139 168 In the third statement, Gertrude says that she and the appellant separated after the complaint regarding the attempted indecent recording, though they maintained a friendly relationship. She refers to an incident in which the oldest child (Dominique) reported that the appellant had watched her through a window whilst she was in the bath. When confronted, the appellant denied this. This is not an incident that was the subject of evidence at the trial. 169 The third statement also refers to Rowan moving into a room of her own when she was 14 or 15 years old. Gertrude states that Rowan's bedroom was on the other side of the house and that she 'wouldn't be able to hear clearly anything going on in [Rowan's] bedroom.140 Gertrude states that there were locks on all the girl's bedrooms from 'early on' after moving into the property. She states that none of the girls had ever complained to her about the appellant going into their bedrooms at night and she had never seen him do so. She states that she had never seen the appellant do anything that she considered inappropriate. 170 The fourth statement commences with complaints by Gertrude about the police failing to take a statement from her earlier. It then sets out the history of her relationship with Gaston and, subsequently, the appellant. She makes allegations regarding Gaston, most of which are in the form of opinions, are speculative, or appear to be based on hearsay. She refers to voice and text messages recording the making of 139 BGAB 562 [56]. 140 BGAB 357 [43]. -- 49 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 50 such threats by Gaston, but none are set out or attached to the statement. 171 Gertrude goes on to state in the fourth statement that she was unaware of any sexual abuse and did not suspect any. She refers to her relationship with the complainants, in particular River, and efforts that she made to obtain counselling for River in relation to behavioural and self-harming issues. She advances theories and opinions regarding the complainants. She refers to efforts to reconcile with River in 2020. She refers to text message exchanges and voice messages from the complainants that are in her possession and that appear to be some of those relied upon by the appellant in his applications dealt with in respect of ground 1. 172 The affidavit of Gertrude sworn on 17 April 2026 is very lengthy. It comprises 501 paragraphs and has 73 annexures. The principal theme is that Gaston has engaged in a long history of abusive and controlling behaviour in respect of Gertrude. She gives an account of bitterly contested Family Court proceedings, complaints to the police and applications for Violence Restraining Orders. Much of the affidavit consists of assertions and statements of the belief of Gertrude. There are frequent references to the hearsay comments of others regarding Gaston that are said to support Gertrude's conclusions. Gertrude asserts a belief that Gaston influenced and manipulated the children. 173 The affidavit contains limited evidence that relates to the issue of whether the sexual offences occurred. Gertrude states that Gaston threatened to make allegations of sexual abuse against her and the appellant, but the dates and precise content of most such threats are not provided. One such threat that is detailed is recorded in a text message on 24 October 2016, in which Gaston states that the appellant will 'be put under the full weight of what he has done to [Dominique], [River] and now [Margot]' and that the appellant 'better be prepared to pay for his sickening behaviour'.141 Gertrude says that this was part of a text exchange that she kept and provided to the appellant prior to his trial. The appellant's lawyer cross-examined Gaston about this text, but not others in the sequence. 174 The affidavit refers to communications in 2021 and 2022 in which Gaston refused to facilitate access by Gertrude to the children, referencing the sexual abuse of the children over a nine year period by 141 Affidavit of Gertrude, sworn 17 April 2026, annexure M. -- 50 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 51 the appellant. Although by this time the complainants had made the allegations to the police, Gertrude implies that this is evidence that Gaston was vindictive towards her and motivated by malice. She complains that Gaston accused her of being aware of the abuse. She complains that Gaston used the attempted indecent recording incident to obtain custody of the children. 175 The affidavit refers to a text exchange in September 2022 with Whitney in which Whitney states that Gaston had told her that the complainants would 'get money from [the appellant] for everything that he did'.142 Whitney states that she is worried that Gaston might 'get the money', though he had not said that. 176 The affidavit annexes a selection of family photographs which are said to be representative of a larger collection.143 The apparent purpose of this is to show that the children appeared happy in the company of the appellant (at least when the photographs were taken). Holly Eldershaw 177 Ms Eldershaw is the mother of a school friend of Margot. Margot and her daughter would regularly have sleepovers at each other's houses. 178 Ms Eldershaw states that she saw the appellant on a couple of occasions when he picked up Margot from her house, 'usually in company with [Gertrude]'.144 She stated that Margot was usually picked up by Gertrude. She remembers the appellant being with his wife in the van on some occasions when Margot was picked up from her home. On these occasions, Gertrude was always the one doing the driving. She remembers the appellant picking up Margot in his utility vehicle on one or maybe two occasions. 179 The relevant paragraph of Ms Eldershaw's statement reads:145 I don't ever recall a time that [the appellant] collected [Margot] from my house on his own without either [Gertrude] or [Ms Eldershaw's daughter] being in the car and definitely not in the van as that was [Gertrude's] car. 142 Affidavit of Gertrude, sworn 17 April 2026, par 418(a). 143 Affidavit of Gertrude, sworn 17 April 2026, annexure BV. 144 BGAB 643 [20] (Statement of Holly Eldershaw). 145 BGAB 647 [48] (Statement of Holly Eldershaw). -- 51 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 52 Appeal against conviction - ground 2 - legal principles 180 The prosecution should call all witnesses necessary to give a complete account of the events upon which the prosecution is based. Those witnesses will include eyewitnesses of any events which go to prove the elements of the offence. However, a prosecutor is not bound to call a witness, even an eyewitness, whose evidence is judged to be unreliable, untrustworthy or otherwise incapable of belief. A failure to call a witness who in fairness should be called by the prosecution may be insignificant in the context of the overall trial. A miscarriage of justice will only occur where the consequences of the failure so affect or permeate the trial as to warrant the conclusion that the fundamental right to a fair trial has been denied.146 181 The following propositions in relation to a convicted person's complaint on appeal about the failure of the prosecutor to call a particular person as a witness are well established:147 (a) The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the State. (b) The prosecutor's decision not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, the decision gives rise to a miscarriage of justice. (c) It is necessary, in determining whether a miscarriage of justice has occurred, to focus directly on the consequences, viewed objectively, that the failure to call the witness has had on the course of the trial and its outcome. (d) The critical question is not whether the prosecutor's decision constitutes misconduct, but whether in all the circumstances the verdict of guilty is unsafe or unsatisfactory. Appeal against conviction - ground 2 - appellant's submissions 182 The appellant submits that Gertrude should have been called as a witness because her evidence does not support the prosecution 'narrative'. He emphasises that Gertrude could give evidence that none of the complainants disclosed any sexual abuse to her (other than Whitney in relation to the attempted indecent recording). He notes that 146 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 664 (Deane J), 674 (Dawson J). 147 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, 575, 577 - 578; See also Jones v The State of Western Australia [2024] WASCA 115 [121]. -- 52 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 53 the jury asked to see Gertrude's statement but that the trial judge did not permit it. 183 The appellant submits that Ms Eldershaw should have been called as a witness because her evidence 'disproved a (sic) allegation that I had picked up [Margot] in [Gertrude's] Hi[A]ce van and sexually abused her' because the appellant 'never drove the Hi[A]ce van without [Gertrude]'.148 Appeal against conviction - ground 2 - respondent's submissions 184 The respondent submits that neither Gertrude nor Ms Eldershaw were eyewitnesses to the events that are the subject of the charges. Neither was present when those offences were alleged to have occurred.149 185 The respondent submits that Gertrude was available to be called by the appellant. While the appellant was giving evidence, his counsel indicated that a decision about whether to call her had not yet been made. At the conclusion of the appellant's evidence, the matter was adjourned so that counsel could take instructions on whether to call Gertrude. On resumption, counsel closed the defence case.150 186 The respondent submits that none of the evidence would have affected the outcome of the trial. It was common ground that the relationship between Gertrude and Gaston was acrimonious.151 It was also common ground that the complainants had not disclosed the offences to Gertrude. That Gertrude did not suspect that any abuse was occurring is irrelevant. Whitney was not cross-examined to the effect that she had ever told her mother that nothing other than the attempted indecent recording had occurred. 187 The respondent submits that Ms Eldershaw does not say that Gertrude was driving the van on every occasion that she saw it used to pick up Margot. The statement leaves open the possibility that Ms Eldershaw did not notice who was driving the van on the occasion the subject of counts 21 to 23, or that Margot's evidence as to how she came to be in the van on that day was incorrect. 148 WAB 20 [1]. 149 WAB 37[69]. 150 WAB 38 [71]. 151 WAB 38 [72] - [73]. -- 53 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 54 188 The respondent submits that there was nothing to suggest that Gertrude or Ms Eldershaw were hostile to the appellant's interests. Indeed, it was noted by the judge who presided at the pre-recordings that Gertrude was 'actively supportive' of the appellant and 'actively unsupportive' of her children. 189 The respondent submits that there was no prejudice to the appellant as a result of the prosecutor's decision not to call either Gertrude or Ms Eldershaw. Their evidence would not have supported his case in the manner he contends.152 The evidence of Gertrude was either irrelevant, uncontroversial, or otherwise inadmissible. The evidence of Ms Eldershaw would not have had the effect that the appellant suggests. Appeal against conviction - ground 2 - disposition 190 Gertrude was not an eyewitness or a witness whose evidence related directly to the elements of the alleged offences. Her evidence was not necessary to give a complete account of the events upon which the prosecution was based. The prosecutor was under no obligation to call her as a prosecution witness, and there was apparently no expectation that he would do so. 191 Though no explanation for why the prosecutor did not intend to call Gertrude was sought, it is not difficult to imagine what those reasons would have been. Gertrude's statements and affidavit reveal her to be favourably disposed to the appellant and unsupportive of the claims of her daughters. There was good reason to doubt that she would be an objective witness. In any event it is far from apparent that Gertrude had anything relevant to say on any matter that was in issue at the trial. 192 The evidence set out in Gertrude's statements and affidavit contains much opinion, speculation, hearsay and irrelevant material. The affidavit relates almost entirely to the history of her dealings with Gaston. The apparent objective is to show that Gaston bore malice to Gertrude and the appellant. The inference the appellant draws from this is that Gaston had a motive to coach the complainants to make false allegations of sexual offences. 193 It was not in issue at the trial that relations between Gaston and Gertrude were acrimonious. Gaston was cross-examined in that regard 152 WAB 40 [78]. -- 54 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 55 and did not deny that he may have sent angry and threatening communications to Gertrude. He denied, however, that he had induced the complainants to make false complaints. Indeed, he said that he was not aware of the details of the complaints made to the police. Nothing in Gertrude's statements or affidavits proves to the contrary. 194 It was open to the appellant to have called Gertrude at the trial. The transcript shows that consideration was given to that course and that a decision was ultimately made not to do so. That appears to be an objectively reasonable forensic decision. The admissible evidence that Gertrude could give was small in compass, added little to what was already in evidence, and would not detract from the direct evidence given by the complainants. There was a real risk that if Gertrude was called as a witness the overall effect would be to harm rather than materially advance the defence case. 195 Ms Eldershaw was not an eyewitness or a witness whose evidence related directly to the elements of the alleged offences. At best, her statement could be interpreted as casting doubt on whether the appellant picked up Margot in the HiAce van, but this is conditioned by her reference to her recall. To say that something cannot be recalled does not prove the negative. There is no obvious reason why she would recall something that was so inconsequential to her. Her evidence was not necessary to give a complete account of the events upon which the prosecution was based. The prosecutor was under no obligation to call her as a prosecution witness. 196 There was no prejudice to the appellant as a result of the prosecutor's decision not to call either Gertrude or Ms Eldershaw. The appellant has fallen well short of showing that the failure of the prosecutor to call Gertrude and Ms Eldershaw so affected or permeated the trial as to warrant the conclusion that the fundamental right to a fair trial was denied. When viewed against the conduct of the trial taken as a whole, the failure of the prosecution to call Gertrude and Ms Eldershaw as witnesses did not give rise to a miscarriage of justice. Appeal against conviction - conclusion 197 Neither ground 1 nor ground 2 has a reasonable prospect of success. The applications to adduce additional evidence should be refused. Leave to appeal should be refused. The appeal against conviction should be dismissed. -- 55 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 56 Appeal against sentence - grounds of appeal 198 The grounds of appeal against sentence are as follows: 1. Sentence was manifestly excessive as my lawyer at sentencing stated to me and that I would be able to appeal this. 2. The sentence was excessive, so to have a purpose of detering [sic] others. That is not relevant as my case was not a publicly known case. 3. Sentence was high on a number of accounts [sic] especially as these are alleged, nothing to back these allegations, no evidence, no recordings. 4. Compared to other cases, the alleged offences are less making the sentence excessive. Sentencing remarks 199 The sentencing judge found, consistent with the verdicts of the jury, that the appellant had sexually assaulted the four complainants whilst they were living with him and Gertrude. Her Honour found that each of the offences had occurred in the manner described by the complainants in their evidence. 200 The sentencing judge found that the appellant was utterly without remorse. When dealt with for the attempted indecent recording offences the appellant denied that he had any kind of sexual interest in Whitney. Her Honour said that, in light of the present offending, that claim was plainly false. 201 The sentencing judge described the offending as very serious. Her Honour said that it involved 'the grossest breach of trust'.153 The offences were not isolated and the appellant repeatedly offended against each of the complainants. The offences also occurred in the context of other conduct, including touching, kissing and smacking on the bottom, that her Honour described as 'grooming'.154 The appellant bribed the complainants with sweet treats and, on occasion, threatened them. Her Honour said that the appellant was able to manipulate the complainants because they had nobody to protect them. 153 ts 1183. 154 ts 1184. -- 56 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 57 202 The sentencing judge said that the appellant had caused physical pain and emotional distress to the complainants. He had destroyed their relationship with their mother and with each other. 203 The sentencing judge said that the complainants were very vulnerable because of the circumstances in which they were living. Their father was absent and their mother's attention was very thinly spread. The family lived in a rural location and the children felt isolated. 204 The sentencing judge noted that each of the complainants had written a victim impact statement, and described those statements as being eloquent in describing the devastating effect of the appellant's abuse. Her Honour described the statements as heartbreaking, and that the effects had been profound and were likely to be long-lasting. 205 The sentencing judge set out the appellant's personal circumstances, which will be referred to in detail below. 206 The sentencing judge referred to general and personal deterrence as being important sentencing factors. Her Honour said that personal deterrence was a factor because the appellant had persisted in his offending and because he clearly has a sexual interest in children. 207 The sentencing judge imposed the sentences reflected in the table at [10]. In doing so, her Honour noted that she had made some adjustments to ensure that the total sentence reflected the overall criminality of the offending. For that reason, some of the sentences were ordered to be served concurrently and the individual sentence on count 6 was reduced from 7 years to 6 years' imprisonment.155 Her Honour noted that some accumulation of sentences was required to reflect the fact that there were four victims. 208 The total effective sentence was 19 years' imprisonment. An order was made that the appellant be eligible for parole. The sentence was backdated to commence on 18 June 2024, when the appellant was remanded in custody. 155 ts 1187. -- 57 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 58 Personal circumstances 209 The appellant was born in 1978.156 He was between the ages of 33 and 42 when the offences were committed. He was 46 years old at the time of sentencing. 210 The appellant was born in the United Kingdom and emigrated to Australia with his parents when he was 2 years old.157 He is the youngest of the three children born of his parent's union. He lived with his parents in Perth and then in a regional town until he was 18. The appellant reported that he was nurtured by his parents, and they were financially comfortable. The appellant's parents are law-abiding and pro-social and remain supportive of him. 211 The appellant had an unremarkable childhood and suffered no significant adversity. He attended one primary school. There were some minor issues with a speech impediment, which he overcame with therapy. He was a below average student, but not to the extent that he required special education. He attended two high schools and left school after completing year 11. 212 The appellant's work history is varied. He has worked seasonally on an oyster farm, spent 10 years in radiator repairs, worked casually as a groundskeeper for six years, and was employed in a maintenance role at a cattle sales yard for three years. There have been occasional periods where he has been unemployed and in receipt of benefits. 213 The appellant has been a regular user of cannabis. He first tried cannabis when he was aged 15 and became a regular user at 17.158 He reported that he used the drug for its calmative effect, though he admitted that it impacted on his motivation to work. He reported ceasing use in 2021. Though he was using at the time of the offences, the sentencing judge found that there was nothing to suggest that this had played a part in the offending. The appellant denied any other illicit drug use or having any problem with alcohol. 214 The appellant has had two significant intimate relationships. The first, with a similar aged woman, commenced when he was aged 19 and continued for 10 years.159 There were three children of that union who 156 ts 1184. 157 Psychological Report for Court, dated 14 October 2024, pars 2 - 4. 158 Psychological Report for Court, dated 14 October 2024, par 8. 159 Psychological Report for Court, dated 14 October 2024, par 10. -- 58 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 59 are now adults. The appellant is estranged from the oldest child but maintains contact with the younger two. 215 When the appellant was 32 years old, he commenced a relationship with Gertrude, who is three years younger. She was married with eight children at the time they first met. They were married in 2014 and had four children together. Their children were aged 9, 7, 4, and 11 months old at the time of the trial. They separated when the attempted indecent recording offences came to light. However, the appellant reported that they remain very close friends and that she continues to be supportive of him.160 216 A psychologist's report noted that the appellant denied the offending and denied any sexual interest in young children, but that this was inconsistent with his convictions. The appellant's stance of denial made it challenging to assess the causes of his offending with confidence. The psychologist assessed the appellant as being at below average risk of reoffending.161 This was due to his previous long-term relationship, no prior sexual (contact) or violent offending, no stranger or unrelated victims and his present age. The sentencing judge did not consider that this was a factor that could change the sentencing outcome as any sentence would necessarily be a long one, and the risk of reoffending at the time the appellant would be eligible for parole could not be known. The psychologist referred to a decline in the appellant's mental health. The sentencing judge found that this was a result of the appellant being arrested, convicted and incarcerated.162 217 The appellant has a criminal record. It includes offences of driving under the influence of alcohol, dangerous driving and drug (cannabis) offences. He has also been convicted of breach of a violence restraining order. The most significant prior offences are the two convictions for attempted indecent recording relating to Whitney which occurred in September 2020, and for which the appellant was sentenced on 3 May 2021 to 12 months' imprisonment conditionally suspended for 18 months for each offence. Appeal against sentence - legal principles 218 In effect, the appellant contends that his total sentence is simply too high. This is an allegation that it can be implied from length of the 160 Psychological Report for Court, dated 14 October 2024, par 5. 161 Psychological Report for Court, dated 14 October 2024, par 14. 162 ts 1185. -- 59 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 60 total sentence that the sentencing judge made an error. This is an allegation of a breach of the first limb of the totality principle. 219 The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.163 A claim that a total effective sentence infringes the totality principle asserts an implied error. For such a claim to succeed, the appellant must establish that the aggregate sentence is unreasonable or plainly unjust. 220 The range of sentences imposed in other cases does not establish the bounds 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 are the unifying principles which sentences imposed in comparable cases reveal and reflect. 221 The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children, given the wide variety of combinations of offending conduct involved in such offending. As this Court observed in CAND v The State of Western Australia:164 [B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion. For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant. 222 In OTR v The State of Western Australia [No 2], this court stated that the well-established general principles applicable to the sentencing 163 See Kabambi v The State of Western Australia [2019] WASCA 44 [21]. 164 CAND v The State of Western Australia [2018] WASCA 101 [48] (Martin CJ, Beech JA & Hall J). -- 60 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 61 of offenders convicted of sexual offending against children are as follows:165 The authorities establish the following propositions in relation to sentencing for sexual offending against children: 1. There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves. 2. The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children. 3. Matters personal to an offender will ordinarily carry less weight. 4. In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character. It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra-familial sexual abuse. Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims. Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion. (footnotes omitted) 223 General deterrence does not depend on a case having received, or being likely to receive, wide publicity.166 It is beyond the power of the courts to ensure that a case is widely publicised. General deterrence operates on a presumption that sentences as a whole (and not merely in an individual case) will discourage others who are like-minded. It would be arbitrary and unfair to punish some offenders more severely 165 OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] - [57]. 166 The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [6] (Steytler P, with McLure & Miller JJA agreeing). -- 61 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 62 because their offending has received some public notoriety and, conversely, other offenders more leniently because their offending has apparently avoided media attention. Appeal against sentence - appellant's submissions 224 The appellant submits that his sentence is excessive because he was wrongly convicted. He submits that general deterrence should have played no role as the case was not in the media. He feels that the sentence is unfair because it will cover the entire childhood of his youngest child. He refers to SCN v The State of Western Australia167 as being a case that is worse than his. He submits that the sentence of 22 years 6 months' imprisonment in that case shows that in comparison his sentence of 19 years' imprisonment is excessive. Appeal against sentence - respondent's submissions 225 The respondent submits that SCN does not assist the appellant. That case involved a single victim, the offending occurred over a relatively short period of time, and the offender received a 10% discount for pleading guilty. Despite those factors, the sentence imposed was still significantly greater than that imposed on the appellant. 226 The respondent refers to other cases, which involve intrafamilial sexual offending against multiple victims over a significant period. Those cases are AAE v The State of Western Australia168, MHE v The State of Western Australia,169 RGT v The State of Western Australia170 and LDF v The State of Western Australia.171 The respondent submits that the results in those cases demonstrate that a significant term of imprisonment was required to reflect the extreme seriousness of the appellant's offending. While there are some features of those cases that are worse than the present case, there are other features of the appellant's conduct which are worse than in those cases. Those cases do not support the appellant's contention that his sentence was excessive. 227 The respondent submits that while the sentence imposed on the appellant was plainly severe, it bore an appropriate relation to the total criminality of the whole of the appellant's conduct. 167 SCN v The State of Western Australia [2017] WASCA 138. 168 AAE v The State of Western Australia [2024] WASCA 35. 169 MHE v The State of Western Australia [2019] WASCA 133. 170 RGT v The State of Western Australia [2017] WASCA 120. 171 LDF v The State of Western Australia [2025] WASCA 193. -- 62 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 63 Appeal against sentence - disposition 228 The essential issue raised by the appellant is whether the total sentence was disproportionate to the overall criminality such as to breach the first limb of the totality principle. This requires consideration of the maximum statutory penalties for the offences, the seriousness of the offending as a whole, the personal circumstances of the appellant and any assistance that can be derived from comparable cases. 229 The maximum penalty for sexual penetration of a de facto child under the age of 16 years is 20 years' imprisonment.172 The maximum penalty for indecent dealing with a de facto child under the age of 16 years is 10 years' imprisonment.173 230 Taken as a whole the appellant's offending was extremely serious. It was persistent sexual offending over an approximately 10-year period against four young children. The appellant was in a familial relationship with the complainants. The offending involved a gross breach of the appellant's trusted position as the stepfather of the complainants. The complainants were vulnerable having regard to their age, the relative remoteness of the house where they lived and their belief that they could not obtain support from their mother. The appellant groomed the complainants by engaging in other acts such as kissing and touching of the bottom. He secured their silence, for example, by telling Whitney that both he and she would go to gaol if she reported what was happening. 231 The offending encompassed a broad range of sexual acts, including digital and penile penetration of the vagina, penile penetration of the anus, fellatio, cunnilingus, touching of the vagina and the breasts, exposure by the appellant of his penis and procuring the touching of his penis. The charged offences were representative in nature and occurred in the context of other similar uncharged acts. 232 The impact of the offending on the complainants has been significant. The complainants describe fear, anger, isolation, difficulties in making connections, continuing nightmares, self-loathing and mental health impacts. They each refer to being deprived of a normal childhood, a safe family home, and the fractured relationships they have with their mother and other siblings. 172 Criminal Code, s 329(9)(a). 173 Criminal Code, s 329(10)(a). -- 63 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 64 233 There was little by way of mitigation. The appellant did not plead guilty, and displayed no remorse. Whilst he had a relatively minor criminal record, personal factors are of less weight in respect of offending of this nature. In any event, any benefit that might have been obtained from past good character is diminished by the fact that the offending continued over a period of 10 years. There was nothing in the appellant's background that could explain, let alone mitigate, his offending. 234 As noted, comparable cases can only provide a guide or yardstick. No single case sets the limits of sentencing discretion. Whilst the criminal justice system strives for consistency in sentencing, that consistency is achieved by viewing all relevant factors in the context of the range of sentences customarily imposed for similar offending. It is rarely useful to select a very small group of cases and suggest that a tariff can be inferred from that small group. 235 A comprehensive review of cases involving intrafamilial child sexual offending has recently been undertaken by this court in Willis v The State of Western Australia.174 It is unnecessary to repeat that review here, other than to note that total effective sentences in excess of 15 years are relatively rare, but not without precedent. The cases referred to by the appellant and the respondent will be referred to in more detail. 236 SCN is not a useful comparator. It involved extremely serious offending in which the father of an 8-year-old girl subjected her to sexual acts both by himself and other men, whilst she was drugged, and while the offending was being recorded. That case acknowledged that the offending was in a class of its own. However, the offender in that case received a significantly higher sentence (22 years 6 months' imprisonment) and pleaded guilty. Furthermore, there are other factors that make the present offending serious, such as the length of time that the offending persisted and the fact that there are four victims. 237 In AAE, an appeal against a total sentence of 17 years 6 months' imprisonment was dismissed. The offender in that case was convicted on his pleas of guilty of 52 sexual offences against his two biological children, a girl aged 4 and a boy aged between 7 and 8. He received a 20% discount for his guilty pleas. The offender persistently sexually abused his children and recorded the abuse. He also committed offences of possessing and distributing child exploitation material. In 174 Willis v The State of Western Australia [2026] WASCA 81. -- 64 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 65 respect of the younger female child the offending included multiple acts of sexual penetration and attempted sexual penetration. The offending came to light when the appellant offered to exchange child abuse images with an undercover law enforcement officer. This court acknowledged that the total sentence was undoubtedly high but was unable to conclude that it was not properly open to the sentencing judge. 238 The appellant's offending was sustained over a much longer period than the offending in AAE and the offender in that case received a significant discount for his pleas of guilty. While the victims in AAE were younger, there were only two of them. The fact that the appellant's sentence is only 18 months greater than that imposed on the offender in AAE after pleas of guilty, does not support the contention that the appellant's sentence is excessive. 239 In MHE, the offender was convicted on his pleas of guilty of 87 offences against his three de facto children. The offences included 21 offences of sexually penetrating a child who he knew to be his de facto child. However, the penetration offences did not include either penile/vaginal or penile/anal penetration. The offending occurred on 14 occasions over a period of just over one year. The large number of offences in that case is a function of the fact that many of the episodes were recorded, and each individual act could be charged as a separate offence. The appellant also voluntarily disclosed some of the offending. The victims were aged 8, 11 and 15, although all but one of the offences related to the two older children. The offender received the maximum discount of 25% for his guilty pleas. An appeal against a total effective sentence of 12 years 6 months' imprisonment was allowed, and a total effective sentence of 10 years' imprisonment was imposed on re-sentencing. 240 The offending in MHE was objectively less serious than that of the appellant, took place over a much shorter period of time, involved fewer victims and some of it was voluntarily disclosed. When the fact that the offender in MHE received a 25% discount for pleading guilty is also taken into account, that case may suggest that the sentence imposed on the appellant was high, but not so high as to manifest error. 241 In RGT, the offender pleaded guilty to 29 offences against three victims, aged between 2 and 13 years. The offender received discounts of between 12.5% and 15% for his pleas of guilty. The most serious offence involved penetration of the vagina of the offender's 2-year-old -- 65 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 66 daughter with his penis, for which he received a sentence of 10 years' imprisonment. The offender was found to have little remorse and his claims not to remember the offences against the youngest victim were rejected. The offending in respect of one victim occurred on two occasions, the offending in respect of the second victim occurred on a single day and the offences against the third victim occurred over about 6 months. An appeal against a total effective sentence of 19 years' imprisonment was allowed and the offender was resentenced to a total sentence of 16 years' imprisonment. 242 While the offending in RGT involved a victim who was far younger than any of the appellant's victims, it was not sustained over as long a period. There are some features of RGT that are more serious, but conversely there are other features of the appellant's offending that are more serious. These include the much longer period over which the offending persisted and the greater number of victims. When the fact that the offender in RGT also received a significant discount for pleading guilty is also taken into account, the 16 years' imprisonment imposed on appeal in that case does not support the contention that the appellant's sentence is excessive. 243 In LDF, the offender was convicted after trial of 31 offences against two victims, aged between 6 and 9 years. Seventeen of the offences were offences of sexual penetration. The offences were committed over a period of three and a half years. The offender was in a familial relationship with the victims and was trusted to care for them. The offences were found to be brief in duration and not forceful or physically painful to the victims. An appeal against a total sentence of 20 years 6 months' imprisonment was allowed, and the offender was resentenced to a total sentence of 16 years' imprisonment. 244 The offending in LDF involved fewer victims and occurred over a much shorter period of time than the appellant's offending. The fact that the appellant's victims were his stepchildren and that they lived together in a rural house enhanced their vulnerability. The overall offending was objectively worse than that in LDF. The 16 years' imprisonment imposed on appeal in that case does not support the contention that the appellant's sentence is excessive. 245 Having regard to the maximum statutory penalties, the seriousness of the offending conduct, the appellant's personal circumstances and the limited assistance afforded by comparable cases, it is not possible to conclude that the total effective sentence of 19 years' imprisonment was -- 66 of 67 -- [2026] WASCA 93 JUDGMENT OF THE COURT Page 67 disproportionate to the appellant's overall criminal conduct. It was appropriate that there be some accumulation of sentences to reflect the extent and diversity of the offences, and the fact that there were four victims. The total sentence was high but not unreasonable or plainly unjust. Appeal against sentence - conclusion 246 The appeal against sentence was reasonably arguable but cannot succeed. Leave to appeal should be granted, an extension of time granted but the appeal against sentence dismissed. Orders 247 We would make the following orders: CACR 112 of 2025 1. Application for an extension of time refused. 2. Applications to adduce additional evidence dated 16 November 2025, 13 April 2026, and 15 April 2026 are refused. 3. Leave to appeal refused. 4. Appeal dismissed. CACR 113 of 2025 1. Application for an extension of time granted. 2. Leave to appeal granted. 3. Appeal dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RD Associate to the Honourable Justice Hall 30 JUNE 2026 -- 67 of 67 --