LEWIS MICHAEL WILLIS (A Pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 81

[2026] WASCA 81 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEWIS MICHAEL WILLIS (A Pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 81 CORAM : THOMSON P VAUGHAN JA HALL JA HEARD : 15 AUGUST 2025 DELIVERED : 12 JUNE 2026 FILE NO/S : CACR 56 of 2024 BETWEEN : LEWIS MICHAEL WILLIS (A Pseudonym) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : BLACK DCJ File Number : IND 1896 of 2022 Catchwords: Criminal law - Appeal against sentence - Child sex offences and child exploitation material offences - Whether sentencing judge erred by characterising count of possession of child exploitation material as being in worst category of offence of its kind - Whether total effective sentence infringes first limb of totality principle -- 1 of 73 -- [2026] WASCA 81 Page 2 Legislation: Criminal Code (WA), s 219(2), s 220, s 320(2), s 320(4), s 320(6) Result: Extension of time to appeal granted Leave to appeal granted Appeal allowed Appellant resentenced Category: D Representation: Counsel: Appellant : D C McCallum Respondent : G N Beggs SC Solicitors: Appellant : David McCallum Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): AAE v The State of Western Australia [2024] WASCA 35 ARK v The State of Western Australia [2014] WASCA 45 CAND v The State of Western Australia [2018] WASCA 101 CDL v The State of Western Australia [2022] WASCA 18 CJF v The State of Western Australia [2012] WASCA 69 Cluett v The Queen [2019] WASCA 111 Coulter v The State of Western Australia [2019] WASCA 215 Dixon v The King [2026] WASCA 48 EDR v The State of Western Australia [2024] WASCA 61 Gaskell v The State of Western Australia [2018] WASCA 8 Giglia v The State of Western Australia [2010] WASCA 9 Godfrey v The State of Western Australia [2013] WASCA 247 Hodges v The State of Western Australia [2025] WASCA 136 House v The King [1936] HCA 40; (1936) 55 CLR 499 Humes v The State of Western Australia [2023] WASCA 110 Hutchins v The State of Western Australia [2006] WASCA 258 -- 2 of 73 -- [2026] WASCA 81 Page 3 Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 Jackamarra v The State of Western Australia [2019] WASCA 150 JJR v The State of Western Australia [2018] WASCA 51 JTR v The State of Western Australia [2023] WASCA 131 Kabambi v The State of Western Australia [2019] WASCA 44 Kelly v The State of Western Australia [2024] WASCA 116 Kenworthy v The Queen [No 2] [2016] WASCA 207 KMB v The State of Western Australia [2010] WASCA 212 KSN v The State of Western Australia [2017] WASCA 156 LDF v The State of Western Australia [2025] WASCA 193 LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355 LYN v The State of Western Australia [2019] WASCA 45 Lyons v The State of Western Australia [2022] WASCA 81 MAS v The State of Western Australia [2012] WASCA 36 MHE v The State of Western Australia [2019] WASCA 133 Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484 Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 Moiler v The State of Western Australia [2026] WASCA 63 Musca v The Queen [2021] WASCA 37 Newton v The State of Western Australia [2023] WASCA 7 Ng v The State of Western Australia [2025] WASCA 121 NQB v The State of Western Australia [2024] WASCA 93 OTR v The State of Western Australia [No 2] [2022] WASCA 123 Pennetta v The State of Western Australia [2013] WASCA 234 PMY v The State of Western Australia [2025] WASCA 113 R v Kilic [2016] HCA 48; (2016) 259 CLR 256 R v Pham [2015] HCA 39; (2015) 256 CLR 550 RGT v The State of Western Australia [2017] WASCA 120 Roffey v The State of Western Australia [2007] WASCA 246 SAL v The State of Western Australia [2021] WASCA 192 SCN v The State of Western Australia [2017] WASCA 138 SG v The State of Western Australia [2013] WASCA 236 Shi v The State of Western Australia [2020] WASCA 197 Smit v The State of Western Australia [2011] WASCA 124 The State of Western Australia v AHD [2021] WASCA 13 The State of Western Australia v Billett [2022] WASCA 158 The State of Western Australia v BKJ [2018] WASCA 136 The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 The State of Western Australia v Doyle [2024] WASCA 161 The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 The State of Western Australia v PJW [2015] WASCA 113 -- 3 of 73 -- [2026] WASCA 81 Page 4 The State of Western Australia v Popal [2020] WASCA 200 The State of Western Australia v Prince [2011] WASCA 22 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Weston v The State of Western Australia [2025] WASCA 131 YDN v The State of Western Australia [2018] WASCA 62 -- 4 of 73 -- [2026] WASCA 81 Page 5 Table of Contents Overview .................................................................................................................................... 6 The objective circumstances of the offending ............................................................................ 7 Initial observations ................................................................................................................. 7 Incident 1 - Avery (2 counts both on 16 March 2019) ......................................................... 12 Incident 2 - Mylah (3 counts all on 9 July 2022) ................................................................. 12 Incident 3 - Mylah (27 counts all on 19 August 2022)......................................................... 13 Incident 4 - Mylah (1 count on 21 September 2022)............................................................ 14 Distribution of child exploitation material offences (15 counts on 5 days between 18 and 22 September 2022) .............................................................................................................. 14 Possession of child exploitation materials (3 counts all on 22 September 2022) ................ 15 The appellant's personal circumstances .................................................................................... 18 The sentencing remarks ............................................................................................................ 20 Disposition ground 1 - the challenge to the sentence on count 49 as an offence falling within the 'worst category' of an offence of its kind ............................................................................ 23 The parties' submissions on ground 1 ................................................................................... 23 The concept of an offence falling within the 'worst category' of an offence of its kind ...... 24 The offence of possession of child exploitation material contrary to s 220 of the Code ..... 28 Conclusion on ground 1........................................................................................................ 31 Disposition ground 2 - the challenge to the total effective sentence ........................................ 37 The first limb of the totality principle .................................................................................. 37 The parties' submissions on ground 2 ................................................................................... 39 The comparable cases ........................................................................................................... 40 Conclusion on ground 2........................................................................................................ 57 Resentencing and orders ........................................................................................................... 62 Annexure 'A' ............................................................................................................................. 65 -- 5 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 6 JUDGMENT OF THE COURT: Overview 1 The appellant was charged with and pleaded guilty to numerous child sex offences (primarily concerning his 5-year-old daughter) together with various counts of possessing and distributing child exploitation material. 2 Broadly speaking, the appellant's offending consisted of: 1. Seven counts of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (Code) - each count carrying a maximum penalty of 20 years' imprisonment. 2. Six counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code - each count carrying a maximum penalty of 10 years' imprisonment. 3. Twenty counts of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Code - each count carrying a maximum penalty of 10 years' imprisonment. 4. Fifteen counts of distributing child exploitation material, contrary to s 219(2) of the Code - each count carrying a maximum penalty of 10 years' imprisonment. 5. Three counts of possessing child exploitation material, contrary to s 220 of the Code - each count carrying a maximum penalty of 7 years' imprisonment. 3 The appellant pleaded guilty to the 51 offences on 17 November 2023. On 20 November 2023 he was sentenced in the District Court of Western Australia by Black DCJ. Her Honour imposed a total effective sentence of 24 years and 6 months' imprisonment. This included a sentence of 5 years' imprisonment on count 49 to be served cumulatively (count 49 being one of the three counts of possession of child exploitation material contrary to s 220 of the Code). The sentencing judge said, as to this offending, that the amount of the child exploitation material and the nature of it put the appellant in the 'worst category' for this kind of offence (sentencing remarks ts 9). 4 The appellant lodged an appeal notice out of time and seeks an extension of time and leave to appeal. The application for an extension of time to appeal is supported by the appellant's affidavit sworn 2 May -- 6 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 7 2024. The delay in lodging the appeal notice is not attributable to the appellant personally. The State, quite properly, does not oppose the application for an extension of time (appeal ts 29). As will be seen, the appeal has substantive merit. In the circumstances we would grant the appellant's application for an extension of time to commence the appeal. 5 There are two proposed grounds of appeal. In summary the appellant asserts that: 1. The sentencing judge erred in characterising count 49 as being in the worst category of offences involving possession of child exploitation material such that the maximum penalty was warranted as the notional starting point for the sentence (ground 1). 2. The total effective sentence of 24 years and 6 months' imprisonment infringes the first limb of the totality principle (ground 2). 6 For the reasons that follow ground 1 fails. However, ground 2 succeeds and the appeal must be allowed. The appellant must be resentenced to a lesser total effective sentence. The objective circumstances of the offending Initial observations 7 Counsel for the appellant prepared a helpful schedule that summarised the nature of each individual offence, the relevant charge, the applicable maximum penalty and the sentence imposed. The State accepts the accuracy of the schedule. We have, in substance, reproduced the summary at annexure 'A' to these reasons. What follows as to the objective circumstances of the offending should be read with the schedule in annexure 'A'. 8 Four general observations should be made before dealing with the objective circumstances of the appellant's offending. 9 First, the objective circumstances of the appellant's offending are conveniently categorised into six groups of offending. Each group was identified after police officers executed a search warrant at the appellant's then home address on 22 September 2022. At the time the appellant lived with his parents in a Perth suburb. The police officers seized several electronic storage devices during the search. Having -- 7 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 8 examined the devices, in addition to identifying child exploitation material, the police officers identified that the appellant had offended against his biological daughter and another young child. The offences were recorded by the appellant on his mobile telephone (an iPhone) in still images and videos. 10 The first four groups of offending concern offences that occurred on particular days as identified from the dates and times of the still images and videos found on the appellant's mobile telephone. The second and third groups involve both contact offences and recording offences; the first and fourth groups are confined to recording offences. The fifth and sixth groups concern the distribution and possession of child exploitation material. 11 Second, the appeal is concerned with sexual offending against children including distributing and possessing child exploitation material. In such a case there is often a difficult balance between providing a lengthy and graphic description of the offending and a bland statement of the offences that is unlikely to convey the true level of moral culpability of the offender: Dixon v The King.1 12 What follows errs on the side of omitting detail that would be inappropriate to publish widely but nonetheless seeks to describe, necessarily in general terms, sufficient information to place in context the seriousness of the appellant's offending. Having re-read what follows, and having compared it to the statement of material facts as adopted by the sentencing judge (sentencing remarks ts 4), this approach is generous to the appellant. 13 Much of the objective seriousness of the appellant's offending lies in his callous indifference to his very young daughter as the object of his sexual gratification. The full depth of this callous indifference only appears from the myriad of details that were captured in the appellant's self-recording of his offending as was then reproduced in the statement of material facts. At one level the heinous and depraved nature of the appellant's offending is self-evident from a statement of the bare facts of the offending. But to describe what occurred in the clinical terms that follows is to sanitise the completely unnatural. 14 The foregoing observation is self-evidently pertinent to the appellant's offending in relation to his daughter. It applies equally to the child exploitation material. Most of the counts of distributing child exploitation material concern the appellant's written description of the 1 Dixon v The King [2026] WASCA 48 [10]. -- 8 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 9 sexual acts he had performed, wished to perform or wished others to perform in relation to his daughter. What was said by the appellant, as the father of a young daughter, defies description. The appellant was not sentenced on the basis that he had in fact performed those acts. Nor, in what follows, do we take the appellant to have performed those acts. Nevertheless, the fact that such things were said, and the evident pleasure that the appellant derived from saying them, is insightful and bears on the seriousness of the appellant's offending. The appellant objectified his daughter, to strangers over the internet, to build up his status and to enhance his standing with like-minded sexual deviants. 15 This court's reasons must provide a sufficient description of the offending to satisfy the obligation to provide legally adequate reasons. However, it is not in the interests of justice that the appellant's graphic statements (or a fulsome description of the details of the child exploitation material itself) be reproduced for public dissemination. 16 Third, this is another sentencing appeal where, the offender having accepted the statement of material facts, the sentencing judge did no more than incorporate the statement of material facts without repetition (sentencing remarks ts 4, 6). There was an extremely limited exposition of the objective circumstances of the offending (sentencing remarks ts 5). The sentencing judge did not stop there in terms of incorporating materials. Her Honour also incorporated a pre-sentence report without indicating what, if any, facts were found for the purposes of sentencing as a result of the report (sentencing remarks ts 13). 17 This court appreciates the demands on a busy sentencing court such as the District Court. But it must be said that the truncated approach of the sentencing judge is prone to result in appellable error and should not be emulated. 18 In a simple case, where the statement of material facts is very straightforward, it may be acceptable to incorporate the facts by reference to the statement of material facts as read by the prosecutor. However, in a case of serious offending the sentencing judge should state at least the salient features of the offending that provide the factual basis for the penalty: The State of Western Australia v Billett;2 Humes v The State of Western Australia;3 EDR v The State of Western Australia.4 That is all the more so where, as here, the sentencing judge reserved after hearing sentencing submissions to deliver sentencing 2 The State of Western Australia v Billett [2022] WASCA 158 [48]. 3 Humes v The State of Western Australia [2023] WASCA 110 [12]. 4 EDR v The State of Western Australia [2024] WASCA 61 [15] fn 5. -- 9 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 10 remarks and impose a sentence at a later date. There is a risk that in so doing, and then simply incorporating the facts by reference to a statement read out on an earlier occasion, the objective seriousness of the offending may be obscured or reduced to a matter of impression. 19 Fourth, before the sentencing hearing the State provided the court with a USB that contained the child exploitation material. This was in accordance with an established practice that in such cases the presiding judge will view a sample of the material to inform the sentencing disposition. However, the sentencing judge, by her Honour's associate, wrote to the parties' legal representatives indicating a preference not to view the material. It was said that the written description of the material sufficiently informed the court such that her Honour was able to proceed to sentencing without viewing the material. The sentencing judge then stated at the outset of the sentencing hearing: I will view the material if either counsel requires me to do so … neither counsel should feel, in any way, constrained in asking me to do so, and [the appellant] should understand that were I to do so, it would not lead me to somehow punish him by imposing a harder sentence (ts 31). 20 Neither the State nor the appellant's counsel required the sentencing judge to view a sample of the child exploitation material. Both were satisfied with the description of the material provided in the statement of material facts. The appellant's counsel sought and obtained specific instructions before agreeing with this approach (ts 31 - 32). 21 The relative perversion and debauchery of the child exploitation material is a relevant sentencing factor. With that in mind this court has previously stated that viewing a representative sample - as identified or agreed by the parties - will 'ordinarily be necessary for the proper performance of the sentencing judge's duties': Smit v The State of Western Australia.5 Since Smit it has been usual for a sentencing judge to view a representative sample of the child exploitation material. However, the viewing of a representative sample is not always required. As was subsequently stated in Kenworthy v The Queen [No 2]: Depending on the circumstances, the ordinary approach of the sentencing judge viewing a representative sample of the pornographic material may not be necessary where the parties provide a sufficiently detailed agreed description of the nature and egregious features of the pornographic material which is the subject of the charge. Such a 5 Smit v The State of Western Australia [2011] WASCA 124 [17]. -- 10 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 11 written description will need to descend to particulars well beyond the CETS classification of the material. The nature of the material within each CETS category may range from written text and cartoons to photographic images and videos, and even within those sub-categories the depravity of the images and the seriousness of the child abuse they depict may vary considerably. However, whether a sentencing judge views a representative sample of the images or is content to proceed on a sufficiently detailed written description, he or she should ordinarily make findings of fact as to the nature and egregious features of the pornography in a manner that extends beyond CETS categories.6 22 The reference to 'CETS' categories is to the 'Child Exploitation Tracking System' categories as described in Smit [14] - [16]; Kenworthy [No 2] [136]; and Shi v The State of Western Australia.7 That categorisation system is no longer in use. Since 1 March 2022 the Western Australian police force have applied the Child Exploitation Material Investigation and Prosecution Guide dated 4 January 2022 which adopts the Australian Child Abuse Categorisation Schema (ACACS). Among other things this places a cap on the number of images and videos to be manually categorised - there is a cap of 1,000 images and 50 videos per device. 23 It will be seen that, in the present case, the number of images and videos exceeded the cap for manual categorisation. In that respect, so far as the categorisation proceeded, the court was informed that images and videos are also identified by computer software. Presumably that occurred in the present case. There will be occasions where this is insufficient. However, in the present case there was no objection to the numbers and categorisation of the images and videos as so determined. 24 Under ACACS, child exploitation material is categorised into two categories: 1. Category 1: child exploitation material involving real children perceived to be under 13 years of age (ie pre-pubescent children or very early into puberty) the contents of which depicts sexual activity involving a child (including a child witnessing sexual activity) or material with a clear focus on either the genitals or anus. 2. Category 2: any other child exploitation material that meets the Western Australian or Commonwealth legislative definitions of child exploitation material that is not category 1 including 6 Kenworthy v The Queen [No 2] [2016] WASCA 207 [139]. 7 Shi v The State of Western Australia [2020] WASCA 197 [7]. -- 11 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 12 animated or written child exploitation material, children between the ages of 13 and 16 years old and Commonwealth child abuse material (children under the age of 18). 25 The ACACS categories are far broader than the pre-2022 categories. In assessing the seriousness of particular offending it will not be sufficient simply to rely on the bare numbers of images and videos falling within category 1 or category 2. If, with the agreement of the parties, a sentencing judge is not to view a representative sample of the child exploitation material, there must be a 'sufficiently detailed written description' of the child exploitation material as contemplated by Kenworthy [No 2] [139]. The statement of material facts in the present case provided such a description. There was, as to the material distributed, substantial reproduction of the appellant's statements and a substantial description of each image. Similarly, the description of the material in the appellant's possession went beyond the bare number of still images and videos in each category on each device. There was a concise reference to what the images and videos predominantly depicted as well as detailed descriptions of numerous individual images and videos by way of example descriptions that extended over many pages. 26 In the circumstances of the present case it was open to the sentencing judge not to view a representative sample of the child exploitation material. It would have been otherwise had there been a dispute as to the accuracy of the written description of the material; or if either party had required the sentencing judge to view a representative sample of the material. But that is not the present case. Incident 1 - Avery (2 counts both on 16 March 2019) 27 The first group of offences involves a then 7-year-old girl who was known to the appellant as the daughter of a family friend. We will refer to her as 'Avery' (not her real name). At the time of the offences the appellant was 28 years old. The appellant recorded two upskirting videos of Avery on 16 March 2019. The videos were of 20 seconds and 1:21 minutes duration respectively and depicted Avery's vaginal area covered by underwear. Incident 2 - Mylah (3 counts all on 9 July 2022) 28 The next three groups of offending involve the appellant's biological daughter. We will refer to her as 'Mylah' (not her real name). The relationship between the appellant and Mylah's mother had ended. The appellant and Mylah's mother had shared parenting arrangements -- 12 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 13 for Mylah. The offending occurred while Mylah was in the appellant's care and the appellant and Mylah were living at the home of the appellant's parents. 29 The three groups concern separate incidents over a two-and-a-half-month period between 9 July 2022 and 21 September 2022. Mylah was 5 years old at the time of the three incidents; the appellant was 31 years old. The sentencing judge found that the appellant had been engaged in this kind of conduct with Mylah for a period that predated the identified offences. In particular, the appellant admitted that he had been dealing with Mylah in a sexual way since she was 3 years old (sentencing remarks ts 2, 5). Accordingly, while the appellant was only sentenced for the offences that he had pleaded guilty to, it was accepted that the recorded offending was representative of other offending. 30 The initial group of offences concerning Mylah occurred on 9 July 2022. Mylah was on the floor, naked with her underwear around her ankles. The appellant pulled open her vagina (count 3). Mylah tried to wriggle away and closed her legs to avoid being touched. The appellant then penetrated Mylah's vagina with his finger (count 4). Both events were recorded by the appellant on his mobile telephone (count 5). Incident 3 - Mylah (27 counts all on 19 August 2022) 31 On 19 August 2022 the appellant sexually penetrated or indecently dealt with Mylah on multiple occasions over a period lasting a little less than half an hour. Most occasions were video recorded on the appellant's mobile telephone (counts 7, 10, 15, 18). In each video Mylah can be seen lying on the appellant's bed, naked from the waist down, with her legs spread while the offender committed the offences. 32 At 10.08 pm the appellant applied a cream or lubricant to Mylah's vagina. He then inserted his fingers in Mylah's labia majora and spread Mylah's vagina (count 6). Three minutes later similar actions occur twice more (counts 8 and 9). At 10.27 pm the appellant made Mylah hold his penis and masturbate him (count 11). The appellant also penetrated Mylah's vagina with the tip of his erect penis multiple times (count 12) and again penetrated Mylah's vagina with his finger (count 13). Following this the appellant masturbated in view of Mylah (count 14). Four minutes later, at 10.31 pm, the appellant again penetrated Mylah's vagina with the tip of his erect penis multiple times (count 16) and masturbated in view of Mylah (count 17). -- 13 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 14 33 Separately, between 10.12 pm and 10.24 pm the appellant took 12 photographs of Mylah on his mobile telephone with her legs spread allowing one or both of her vagina or anus to be clearly seen (counts 19 - 30). In most of the photographs Mylah is holding her legs in the air. In two of the photographs Mylah appears to be upset or to have tears in her eyes. In one of the photographs Mylah has a hand on either side of her vagina and is spreading her vagina open for the appellant as the photographer while Mylah looks directly at the camera and smiles. One image depicts the appellant touching Mylah's vagina with his fingers outside the labia majora (count 31). Another depicts the appellant spreading Mylah's vagina with his hand (count 32). Incident 4 - Mylah (1 count on 21 September 2022) 34 On 21 September 2022 the appellant took a further photograph of Mylah - this showed a close up of her underwear pushed to one side exposing her vagina (count 33). Distribution of child exploitation material offences (15 counts on 5 days between 18 and 22 September 2022) 35 Between 18 and 22 September 2022 the appellant distributed child exploitation material to various users through Wickr and email addresses. Most of the material involved the appellant describing sexual acts he had performed or wished himself or others to perform on children (in context these were largely directed to his daughter). Three of the distribution offences involved the appellant sending digital images that constituted child exploitation material. 36 The first kind of distribution of child exploitation material occurred on 12 discrete occasions on 18, 19, 20, 21 and 22 September 2022 (counts 35 - 42, 44 - 46, 48). Each distribution was to a different user. On most occasions the appellant described in writing sexual acts he had performed, wished to perform or wished others to perform in relation to his daughter. These included statements to the effect of having engaged in penile, digital or lingual sexual penetration of his daughter including as a newborn; ejaculating inside his daughter; having his daughter fellate or masturbate him; and dealing indecently with his daughter including by sexual touching and ejaculating on her and in her milk bottles. The language used by the appellant was, however, far more colloquial and graphic. On a number of occasions the appellant described his activities as being when his daughter was a 'newborn' or 'newbrn', a '2 day newbrn' or '2 days old' (counts 35, 36, 38, 39, 41, 42) and 'had the first pussy lick at a few months old' -- 14 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 15 (count 48). The appellant asserted more than once that his daughter found it 'comforting' to have a 'cock' between her legs (counts 36, 37). 37 The appellant also described sexual acts performed in relation to children more generally. These included statements to the effect of: 'love newbrn hrdcore' (count 41), and 'do like dead and alive' (count 46). 38 The appellant distributed images of child exploitation material on three occasions on 21 September 2022 (counts 34, 43 and 47). Count 34 involved six still images of Mylah (including a photograph that depicted the offending the subject of count 33). The other five images were of Mylah wearing underwear but focused on Mylah's genital regions. In one of the images Mylah's face is visible and the appellant appears to be holding a piece of paper on which is written the recipient's user name. The images, as sent by Wickr, were accompanied by messages referring to the sexual acts the appellant had performed on his daughter (again from when she was a 'newbrn'). 39 Counts 43 and 47 involved the distribution of category 1 child exploitation material in the form of digital still images. One was the image of a naked infant whose mouth was being penetrated by an adult erect penis (count 43). In the other image a naked girl aged 4 to 6 years old was being anally penetrated by an adult male (count 47). Possession of child exploitation materials (3 counts all on 22 September 2022) 40 The last three counts concern the child exploitation material that was found on the electronic storage devices in the appellant's possession on 22 September 2022. The three devices were the appellant's iPhone (count 49), the hard drive of a desktop computer (count 50) and an external hard drive (count 51). 41 The term 'child exploitation material' for the purpose of an offence contrary to s 220 of the Code is defined in s 217A. 42 Relevantly, 'child exploitation material' means either child pornography or material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child (a) in an offensive or demeaning context; or (b) being subject to abuse, cruelty or torture (whether or not in a sexual context). 'Child pornography' means material that, in a way likely to offend a reasonable person, describes, depicts or represents a -- 15 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 16 person or part of a person who is, or appears to be a child (a) engaging in sexual activity; or (b) in a sexual context. 43 The word 'child' is defined to mean a person under the age of 16 years; and the word 'material' includes any object, picture, film, written or printed matter, data or other thing. 44 In summary the following child exploitation material was located on the appellant's three devices: Category 1 Category 2 Total Images Videos Images Videos Images Videos iPhone 2,132 1,183 190 54 2,322 1,237 Computer 17,190 166 3,203 24 20,393 190 External 739 1,073 14 58 7538 1,131 Total 20,061 2,422 3,407 136 23,4689 2,558 45 Accordingly, across the three counts as to the three devices a total of 23,468 images and 2,558 videos were identified and categorised as being child exploitation material in the possession of the appellant. A significant quantity depicted prepubescent girls (both infants and toddlers) being subjected to sexual penetration by adult males. The sexual penetration included oral, vaginal and anal penetration. It is, regrettably, necessary to provide more detail as to the nature of the child exploitation material. In doing so we will concentrate more on the category 1 material than the category 2 material insofar as the category 1 material is more serious in terms of relative perversion and debauchery. 46 As to count 49 (ie the iPhone), the category 1 items predominantly depicted sexual penetration and indecent dealing offences against girls under 6 years of age. These included babies subjected to penetration and humiliation. Some of the items depicted dead children. The category 2 items predominantly depicted Caucasian female children aged between 13 and 16 years old penetrating their own vaginas or being engaged in sexual activity with adult males. 8 The statement of material facts refers to a total of 755 images. However, this is mathematically incorrect given the other figures in the statement. 9 The statement of material facts refers to a total of 23,470 images. However, this is mathematically incorrect given the other figures in the statement. -- 16 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 17 47 Of the category 1 material, one of the images depicted a deceased girl who had been decapitated and disembowelled and was being penetrated by a surgical instrument. Other images were of a 3-month-old infant whose mouth was being penetrated by an adult man's penis; and a blindfolded and bound 6 to 7-year-old girl who was naked and had a dog licking her vagina. A video recorded a naked infant, 6 to 12 months old, being anally penetrated by the erect penis of an adult male while her vagina was exposed. The child was struggling and crying. Another video, again of a 6 to 12 months old female infant, shows an adult female performing cunnilingus on the child. The adult also inserted a vibrator into the child's vagina and anus. The child was upset throughout the video. A further video shows an infant under 3 months old lying on its back while an adult males forced his erect penis into the child's mouth - the infant can be heard crying and choking on the erect penis. 48 The category 1 material the subject of count 50 (ie the desktop computer) predominantly depicted female infants and toddlers being orally, vaginally and anally penetrated by adult males. The category 2 material the subject of this count predominantly depicted teenage girls between 13 and 16 years old taking indecent images of themselves or having indecent photographs taken of them by a second person. 49 As to the category 1 material the subject of count 50, the example descriptions include a digital photographic image of another deceased child, this time 12 to 18 months old. The child is shown naked, surrounded by blood on a morgue table, with a traumatic vaginal injury. A further image is of a male infant, less than 3 months old, naked from the waist who is being anally penetrated by an erect penis. The videos include a clothed baby being masturbated over, and ejaculated on, by an adult male; a naked 3 to 4-year-old girl being orally and vaginally penetrated by two adult males at the same time; and a boy, 12 to 18 months old, who is naked and restrained by rope on a plank, who is defecated and urinated upon by an adult male, before being turned over and digitally penetrated in the anus by the adult male before the adult male masturbates himself to ejaculation over the child's bottom and back. 50 The child exploitation material the subject of count 51 is similar in nature to the other material. The category 1 material predominately depicts female infants and toddlers being sexually penetrated by adult males. The penetration included oral, vaginal and anal penetration. The category 2 material predominantly depicts female children aged between 13 and 16 years old taking intimate images of themselves. -- 17 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 18 51 The example descriptions of the category 1 material comprised in count 51 include digital photographic images depicting a collage of naked female infants who are either being ejaculated over or are the subject of penile penetration; and a 3 to 4-year-old girl, naked from the waist down with wrists bound, mouth taped and legs restrained and bound at the knees so as to fully expose her vagina and anus to the camera. A video records a naked girl, 6 to 12 months old, who is being held down by an adult male with one hand while he masturbates himself over the girl's vagina with his other hand. This continues, with the male's penis rubbing the infant's vagina and anus, until the male ejaculates on the girl's vagina. In two further videos an adult male forcibly penetrates the vagina and anus of a girl, 3 to 4 years old, before ejaculating over her buttocks; and an adult male forces his penis into and penetrates the anus of a 12 to 18-month-old child while the child is crying and hyperventilating. 52 With each count most of the video material was untitled and stored in the general file structure of the device. Some of the material was located in the recycle bin. There were no encryption applications or other measures to hide the material save that some of the photographs on the iPhone were located in a hidden section. No duplicated images were noted across the three devices. The appellant's personal circumstances 53 The appellant was 28 years old at the time of the offending against Avery. He was 31 years old at the time of offending against Mylah and committing the other offences. When he was sentenced the appellant was close to being 33 years old. He is now 35 years old. 54 The appellant's upbringing was unremarkable and emotionally nurturing. He is the middle child of three children born to his parents. The sentencing judge described the appellant as growing up in a 'normal' and 'pro-social' family' (sentencing remarks ts 13). It was said, however, that the appellant was shy and struggled socially, being overweight for a time and experiencing bullying. 55 The appellant was below average academically, requiring some extra assistance in upper primary school, but finished year 12 as an average student with friends. After school the appellant completed a TAFE air conditioning qualification. Subsequently the appellant worked locally and on a fly-in/fly-out basis. The appellant variously said that he had difficulties, at one point, in maintaining stable -- 18 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 19 employment, but otherwise claimed to have a positive employment history. 56 The appellant continued to enjoy a positive relationship with his parents. Regrettably his father had experienced health issues; these issues had caused difficulties for the family. The appellant identified his father's health issues as a stressor that had resulted in challenges for him over several years. However, the appellant did not have any substance abuse issues with drugs or alcohol. Nor had he ever been treated for any mental health challenges. The appellant was not affected by any physical health issues. 57 There was evidence that the appellant had experienced short-term relationships with women of a similar age to him. However, the relationship with Mylah's mother was the appellant's first significant relationship. It commenced when the appellant was around 24 years old; Mylah's mother was around 5 years younger. There is a discrepancy in the papers as to whether the appellant was in a relationship with Mylah's mother for 18 months or 3 years. Mylah's birth was unplanned. The appellant separated from Mylah's mother when Mylah was approximately 1 year of age. He had custody of Mylah on weekends. At the time, as at the time of his eventual arrest, the appellant resided with his parents - the appellant had returned to live with his parents after his relationship with Mylah's mother ended. The appellant's parents' presence in the home did not deter the appellant from committing the offences to which he pleaded guilty. 58 The author of the pre-sentence report recorded that the appellant stated that he had started to access child exploitation material after his relationship with Mylah's mother ended in 2018. The appellant had been unable to establish a sexual relationship with an adult at the time. The appellant accessed mainstream pornography websites, focusing on images of increasingly younger children, before engaging with people online for the purpose of accessing child exploitation material. The appellant used the material for his sexual gratification. He acknowledged a sexual attraction to pre-pubescent children and being aroused by child exploitation material featuring prepubescent girls. 59 A psychologist who interviewed the appellant was of the opinion that he was emotionally immature, with poor self-awareness and insight. The appellant was naïve as to the gravity of his offending. The appellant remained dependant on his parents despite his age. The psychologist suggested that the appellant had failed to individuate which explained the appellant's immaturity and naïvety. The appellant -- 19 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 20 knew that he had a deviant paedophilic sexual interest. However, the appellant did not know why he had that interest. Nor did he know quite what to do about it. The psychologist suggested that the appellant's deviant behaviour might be a negative coping strategy to distract the appellant from his difficulties in intimate relationships and his problems and emotions more generally. 60 The appellant acknowledged that his offending was unlikely to have stopped without police intervention despite his knowledge that the offending was illegal and harmful. The sentencing remarks 61 The sentencing judge observed that the offending against Mylah occurred in a context where the appellant had been dealing with Mylah in a sexual way since she was 3 years old. However, her Honour clarified that the appellant was only to be sentenced for the offences to which he had pleaded guilty (sentencing remarks ts 2, 4, 5). 62 Without recounting the facts of the offending - saying that there was 'an importance in not unnecessarily repeating such graphic and horrific content' - the sentencing judge said as to the offending as a whole that the appellant's conduct fell 'into a category of the most serious of its kind' (sentencing remarks ts 4). 63 In terms of aggravating factors, the sentencing judge mentioned: 1. There was violence in the appellant's offending against Mylah in the sense that the appellant forced himself upon Mylah, forced Mylah to act in a sexualised way towards him, ignored Mylah's overt signs of pain and distress and ignored Mylah's requests that he stop (sentencing remarks ts 6, 7). 2. There was a breach of trust - not only by abuse of the parent-child relationship, but by an abuse of the trust that Mylah's mother reposed in the appellant (sentencing remarks ts 7). 3. The appellant acted for his own sexual needs and desires (sentencing remarks ts 6). 4. The recording of the offending and its distribution to others meant that it was in the public domain. In this respect the recording was all the more so aggravating because the appellant's messages were designed to encourage the recipients -- 20 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 21 to molest their own children and was used as a 'bargaining chip' to access other child exploitation materials (sentencing remarks ts 7 - 8). 64 Her Honour also made reference to a victim impact statement that had been provided by Mylah's mother. The victim impact statement is before this court. It is apparent that the offending has had serious impacts on both Mylah and Mylah's mother. It is likely that the adverse effects of the appellant's offending will continue to have a serious impact on Mylah and Mylah's mother for the remainder of their lives. 65 Based on the appellant's correspondence to the court, relied on at the sentencing hearing, the sentencing judge concluded that the appellant did not yet have any real insight into the nature of the harm he had caused to Mylah (sentencing ts 9). 66 The sentencing judge found that the appellant had a sexual interest in very young children and that his interest had subsisted for a considerable period (sentencing remarks ts 2, 5 - see also sentencing remarks ts 14). The sentencing judge also found, for the purpose of sentencing, that the appellant was sexually aroused by discussions and images involving the penetration of and other extreme sexual activity with newborn babies. The appellant actively encouraged such behaviour and sought out and viewed such images (sentencing remarks ts 6). The appellant also had a deviant sexual interest in and sought out and viewed materials depicting adults engaging in sexual acts with deceased children (including where death had been brought about by brutal violence) (sentencing remarks ts 6). 67 In terms of mitigating factors, the sentencing judge mentioned: 1. The appellant's pleas of guilty were 'not insignificant' and the appellant should receive a 25% reduction on the head sentences he would otherwise have received (sentencing remarks ts 12). 2. The appellant was not yet remorseful but was 'on the start of a pathway toward[s] remorse' (sentencing remarks ts 12). 3. The appellant did not have a criminal record and in that sense was of apparent prior good character (sentencing remarks ts 12). 68 However, the appellant was at a high risk of reoffending (sentencing remarks ts 10). The appellant's sexual interest in young children went to a level that involved pleasure from violence and extreme harm being caused to young children. This significantly -- 21 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 22 elevated the risk that the appellant presented to society (sentencing remarks ts 6). Also, the appellant's letters to the court did not show any real insight or understanding as to how far he had strayed from humanity (sentencing remarks ts 6). The appellant did not yet have real insight into the nature of the harm he had caused Mylah (or the harm he had caused other children) (sentencing remarks ts 9). 69 The sentencing judge accepted that the appellant cooperated with law enforcement authorities 'to an extent'. However, the appellant was not upfront and did not 'come close' to acknowledging the extent and depth of his offending. In terms of cooperation, her Honour only took into account that the appellant spoke to the police when he was under no compulsion to do so and admitted the obvious (sentencing remarks ts 3, 12). Against that, however, as has been mentioned, the appellant did concede that the offending had commenced at an earlier time (sentencing remarks ts 2, 7, 12). 70 At various points in the sentencing remarks, her Honour addressed the concept of a 'worst category' (see eg sentencing remarks ts 4, 8 - 9). In particular the sentencing judge stated: Your own counsel does not dispute the fact that the child exploitation material in particular falls into the worst category and as will be apparent to you soon, I have regard to the maximum penalties when I deal with your sentencing for the child exploitation material, reduced only by reason of your plea of guilty and a small amount of mitigation. (sentencing remarks ts 4) As I have already indicated some of the material in your possession is in the worst category of offending, and further, the amount of material and the nature of it puts you in the worst category for all of the offences involving the child exploitation material. (sentencing remarks ts 8 - 9) 71 The sentencing judge was evidently under a misapprehension as to the amount of child exploitation material in the appellant's possession. The sentencing judge referred to an 'enormous amount' of child exploitation material 'depicting images of a scale and content' never seen in any reported decision to which her Honour had access (sentencing remarks ts 5). Her Honour later quantified this as 51,086 images (nearly all category 1 and 'the worst of its type') and 5,252 videos (again many of which was category 1 and 'the worst of its kind') (sentencing remarks ts 8). In fact, as the statement of material facts recorded, a total of 23,470 images and 2,558 videos were identified (par 34 - see also pars 35, 39, 43) (although, as we note at [45] above, this overstates the total of the images by two). -- 22 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 23 72 When the sentencing judge came to sentence the appellant for the offending the subject of count 49, her Honour stated: Count 49 will be the head sentence. This is the child exploitation material found on the iPhone. This is the one I indicate, the maximum penalty's only seven years and I have given you the maximum, but for the discount, so that will be five years and that will be cumulative (sentencing remarks ts 17). 73 Individual sentences were imposed for each of the 51 offences. The sentencing judge did not expressly mention the totality principle (although see sentencing remarks ts 8 where her Honour acknowledged that in aggregate the individual sentences would be 'disproportionate'; see also ts 75 - 76, 93). However, several of the individual sentences were 'reduced for totality purposes' or 'reduced … for the purposes of totality' (sentencing remarks ts 15 - 17). Accordingly, it is apparent that her Honour had regard to and applied the totality principle in arriving at the total effective sentence of 24 years and 6 months' imprisonment. 74 The appellant was made eligible for parole and the sentence was backdated to commence from 22 September 2022 (sentencing remarks ts 17 - 18). Disposition ground 1 - the challenge to the sentence on count 49 as an offence falling within the 'worst category' of an offence of its kind The parties' submissions on ground 1 75 Ground 1 is directed to the sentence of 5 years' imprisonment imposed in relation to the offending the subject of count 49. The ground, by its terms, is directed to the sentencing judge's characterisation of the offence as being in the worst category of offences involving the possession of child exploitation material. However, the particulars to the ground emphasise the sentencing judge's approach to the characterisation task rather than the outcome that the sentencing judge reached. In oral submissions the appellant's counsel abandoned particulars (a) and (b) and informed the court that only particular (c) was relied on in support of ground 1 (appeal ts 11). 76 Particular (c) states: The sentencing judge's consideration of the nature of the crime was based upon an erroneous number of images that was more than double the number referred to in the statement of material facts upon which the appellant was to be sentenced. -- 23 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 24 77 In oral argument the appellant's counsel advanced ground 1 as raising the question whether the offending the subject of count 49 fell within the 'worst category' (appeal ts 9 - 10). 78 Broadly speaking, the appellant relied on three things in contending that the offending the subject of count 49 was not in the worst category. First, the appellant submits that the sentencing judge erroneously conflated the volume and nature of the material that was the subject of counts 49 - 51. The appellant's counsel submits, in substance, that the sentencing judge dealt with the child exploitation material as a 'job lot'. Second, the appellant submits that the sentencing judge mistakenly relied on an incorrect number of images and videos in her Honour's assessment of the seriousness of count 49 (this evidently replicates particular (c)). Third, the appellant submits that his possession lacked any organisation - the child exploitation material was untitled and stored in the general file structure of the iPhone meaning that the appellant's possession of the material was not associated with any level of sophistication. See appellant's submissions, pars 25, 31 - 33; appeal ts 11 - 18, 20 - 21. 79 The State submits that it was open to the sentencing judge to conclude that count 49 was in the worst category of this kind of offence such that the maximum penalty was warranted as the notional starting point for the sentence. In the alternative, if the correctness standard applies, the State submits that the sentencing judge was correct to characterise the offending the subject of count 49 as offending falling within the worst category of offending of that kind. See respondent's submissions, pars 3, 31 - 37; appeal ts 29, 31, 36. The concept of an offence falling within the 'worst category' of an offence of its kind 80 The High Court of Australia has cautioned sentencing courts about the use of the term 'the worst category' of an offence: The Queen v Kilic.10 It is potentially confusing, and likely to lead to error, to describe an offence which does not warrant the maximum prescribed penalty as being within the worst category [19]. It may also lead to misunderstanding by the general public where an offence, even if particularly serious, is stated to be not within the worst category. To avoid difficulties of that kind, where it is relevant to do so, it is preferable to state in full whether the offence 'is or is not so grave as to warrant the maximum prescribed penalty' [20]. 10 R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19] - [20]. -- 24 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 25 81 The sentencing judge did not adopt the High Court's guidance in Kilic. 82 To be clear, as the High Court stated in Kilic, sentencing judges should 'avoid using the expression "worst category"' [20]. Its use in the present case was particularly apt to confuse where her Honour referred interchangeably to 'worst category' offence; that the 'content' of the child exploitation material was the 'worst category of its type'; and that 'nearly all' or 'many' of the images and videos were category 1 and the 'worst' of its type or kind (sentencing remarks ts 4, 8 - 9). 83 Accepting, however, that the term 'worst type' or 'worst category' has a particular legal signification - having been used in decisions such as Ibbs v The Queen11 and Veen v The Queen [No 2]12 - the primary judge chose to adopt the terminology of 'worst category'. In so doing her Honour correctly understood the phrase to apply to an 'instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence': Kilic [18]. In that respect, once it is recognised that an offence is so grave as to warrant the maximum prescribed penalty, it is beside the point that it may be possible to imagine an even worse instance of the offence: Kilic [18]. Ingenuity can always conjure up a case of greater heinousness: Veen [No 2] (478). 84 In Kilic the High Court stated that: Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type [18]. 85 In Western Australia, when sentencing for a State offence, this approach must be modified. As Buss P stated with the apparent approval of Mazza and Hall JJA in Kelly v The State of Western Australia: [I]n Western Australia, the approach of considering the nature of the crime and the circumstances of the criminal in determining whether the case is of the 'worst type' must be modified to accommodate the requirements of s 9AA [of the Sentencing Act 1995 (WA)]; in particular, the 'head sentence' (as defined in s 9AA(1)) for the offence must be determined before reductions on account of the plea and any other mitigating factors. Prior decisions of this court (notably Rossi and Greenland) have mandated that approach. 11 Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 451 - 452. 12 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 478. -- 25 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 26 The effect of s 9AA, as construed in Rossi and Greenland, is that in Western Australia, where an offender pleads guilty and the sentencing judge proposes to impose a fixed term of imprisonment, the nature of the offence (including its objective circumstances and all aggravating factors), the circumstances of the offender (to the extent that those circumstances are not mitigating) and all relevant sentencing factors that are not mitigating must be considered in determining the 'head sentence' (as defined in s 9AA(1)), including in determining whether the case is of the 'worst type'.13 (original emphasis) (citations omitted) 86 In Kelly, Mazza and Hall JJA went on to explain that the exercise of the sentencing discretion is dynamic, not mechanical [377]. The head sentence is the hypothetical sentence that would have been imposed on the offender if, instead of pleading guilty, he or she was convicted after trial in circumstances where there were no mitigating factors [380]. The determination of the head sentence (and, inferentially, whether the offending is so grave that it warrants the imposition of the maximum prescribed penalty) is informed by factors such as: the principle of proportionality in s 6(1) of the Sentencing Act; the statutory penalty, the circumstances of the commission of the offence (including the vulnerability of any victim) and any aggravating factors; and an objective assessment of the seriousness of the crime and the matters causally related to it. It may also include matters personal to the offender to the extent that they are not mitigating [381]. 87 A 'worst category' case is, by definition, 'relatively rare': The State of Western Australia v BLM;14 Moiler v The State of Western Australia.15 The sentencing court may refer to comparable cases to decide whether the case before the court is properly described as being in the 'worst category'. However, comparable cases will not determine the issue; they are relevant but not controlling. Each case must be decided on its own facts: Coulter v The State of Western Australia.16 88 The appellant challenged the sentencing judge's characterisation of count 49 as being in the worst category of offences involving possession of child exploitation material. 89 There is a potential difficulty in the ground of appeal as so formulated. In challenging the sentencing judge's characterisation of the offending the complaint is directed to the sentencing judge's assessment of the relative seriousness of the appellant's offending rather 13 Kelly v The State of Western Australia [2024] WASCA 116 [287] - [288] (Buss P), [373] (Mazza and Hall JJA). 14 The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [45]. 15 Moiler v The State of Western Australia [2026] WASCA 63 [376]. 16 Coulter v The State of Western Australia [2019] WASCA 215 [45]. -- 26 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 27 than asserting that her Honour made an erroneous factual finding. A challenge of this kind is often better understood as a particular of a ground of appeal that alleges manifest excess: Lyons v The State of Western Australia.17 90 In Moiler, when dealing with a State appeal against sentence on the ground that appellable error arose from the sentencing court finding that the offence was not within the worst category of an offence of its kind, Mitchell and Sweeney JJA stated (Thomson P relevantly agreeing on this point): A finding by a judge at first instance that offending falls, or does not fall, within the worst category, does not challenge a finding of fact, or assert an error of law, or challenge an order of the court. Such a finding is a characterisation by a judge as to where the offending falls on a scale of seriousness and, in that sense, is no different to any other such finding. A question was raised by the bench in the hearing of this matter as to whether such an express error, if it be an error, amounts to an independent ground of appeal, as opposed to a particular of a ground which challenges the sentence imposed [371]. 91 It was ultimately not necessary for Mitchell and Sweeney JJA to determine whether the alleged error amounted to an independent ground of appeal - their Honours were not persuaded that the sentencing judge in Moiler erred in failing to find that the offending fell into the worst category of an offence of its kind [513] (see also [373] - [374]). However, Mitchell and Sweeney JJA observed that in Coulter this court acted 'with no such reservation' in dealing with a ground asserting express error insofar as the sentencing judge in that case found that the offence fell within the worst category of an offence of its kind [372]. See also Coulter [36], [42], [44] - [58]. 92 The point now raised as to the possible difficulty with the ground as formulated (as further identified by Mitchell and Sweeney JJA in Moiler) was not raised for consideration in Coulter. It is possible that the approach in Coulter may need to be reconsidered by the court in an appropriate case. However, for reasons that will become apparent, this aspect of Coulter does not need to be re-examined in the present case. Accordingly, we will not finally resolve whether a 'worst category' conclusion is simply a matter of characterisation rather than a necessary factual finding to determine that an offence is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. 17 Lyons v The State of Western Australia [2022] WASCA 81 [67]. -- 27 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 28 93 Counsel for the appellant was alive to the potential issue in the formulation of ground 1. Counsel confirmed that the question for the court was whether the offending the subject of count 49 was, or was not, offending falling within the worst category of an offence of its kind. However, counsel also informed the court that implicit in the ground is the contention that the sentence of 5 years' imprisonment is manifestly excessive (appeal ts 9). Accordingly, whether or not ground 1 is a proper ground in itself is not critical. The appellant evidently relied on there being an alleged mischaracterisation as to the seriousness of the offending which had consequences as to the length of the sentence that was imposed. The offence of possession of child exploitation material contrary to s 220 of the Code 94 The offence of possession of child exploitation material is one of four offences concerning child exploitation material found in ch XXV of the Code. The other child exploitation material offences have higher maximum statutory penalties. There is a maximum penalty of 10 years' imprisonment for each of involving a child in child exploitation (Code, s 217); producing child exploitation material (Code, s 218); and distributing child exploitation material (Code, s 219). The maximum penalty for possession of child exploitation material is 7 years' imprisonment (Code, s 220). 95 The applicable sentencing principles for the offence of possession of child exploitation material contrary to s 220 of the Code are well established. What follows by way of exposition of those principles largely adopts this court's decision in Shi [43] - [46] (the principles as recited in Shi having been adopted in JTR v The State of Western Australia18 and The State of Western Australia v Doyle19). 96 Section 220 of the Code forms part of ch XXV dealing with child exploitation material. It commenced operation on 28 August 2010. Section 220 replaced s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). The maximum penalty for the former offence was 5 years' imprisonment. The increase in maximum penalty to 7 years' imprisonment is an indication that the offence is to be viewed more seriously, with the consequential effect of 18 JTR v The State of Western Australia [2023] WASCA 131 [131] - [132]. 19 The State of Western Australia v Doyle [2024] WASCA 161 [42]. -- 28 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 29 increasing sentences: Godfrey v The State of Western Australia;20 The State of Western Australia v McCarthy.21 97 Offences of possessing child pornography are serious offences: Hutchins v The State of Western Australia.22 It is apparent from numerous previous decisions of this court and its predecessor that the factors which are relevant in determining the seriousness of a particular offence against s 220 of the Code include the following: 1. The gravity of the sexual activity depicted including the level of perversion and debauchery. 2. The number of children depicted. 3. The age or apparent age of the child or children. 4. The extent to which the conduct depicted in the child exploitation material is likely to harm the child or children. 5. Whether the child exploitation material tends to depict sexual activity with children as attractive or desirable. 6. The number of videos, images or other items the subject of each charged offence. 7. Whether the child exploitation material was possessed by the offender for purposes which included sale or further distribution. 8. Whether the offender profited or was likely to profit from the commission of each charged offence. 98 A broader list of non-exhaustive relevant factors is found in the New South Wales decision of Minehan v The Queen23 (a decision concerned with the equivalent New South Wales and Commonwealth offences). The broader list of factors in Minehan was referred to with apparent approval by this court in Cluett v The Queen.24 Minehan also makes the point that care must be taken in placing too much reliance on the number of images or videos. In the case of possession of child exploitation material, the significance of the quantity of the images or 20 Godfrey v The State of Western Australia [2013] WASCA 247 [53]. 21 The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [66]. 22 Hutchins v The State of Western Australia [2006] WASCA 258 [18]. 23 Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [94] - [95]. 24 Cluett v The Queen [2019] WASCA 111 [61]. -- 29 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 30 videos lies more in the number of different children that are depicted and thereby victimised: Minehan [82], [94](4). 99 In The State of Western Australia v McCarthy Mazza JA (McLure P and Buss JA agreeing) stated: Offences relating to [child exploitation material] are not victimless crimes. Those who possess and distribute this material encourage its production which involves and depicts the abuse, exploitation, humiliation and corruption of children who are vulnerable and incapable of protecting themselves. The harm caused to these children is incalculable. In a very real sense, those who possess or distribute this material encourage further child abuse. The prevalence of offending of this type is an issue because [child exploitation material] is readily available via the internet and may be obtained, possessed and distributed in digital form across the world in multiple jurisdictions. Offences in relation to it are often difficult to detect and investigate. The major sentencing consideration is general deterrence. The court's duty is to protect children. The purpose of imposing deterrent sentences is to eliminate or reduce demand for, and thus the production and supply of, [child exploitation material] … Because of the weight to be given to general deterrence, mitigating factors personal to the offender, including good character, are accorded less weight.25 (citations omitted) 100 The possession of child exploitation material encourages its production and with it the abuse, exploitation, humiliation and harming of vulnerable children. The demand for child exploitation material is reduced by deterring people from possessing such material. This means that the abuse of real children - which necessarily occurs in producing child exploitation to the extent that it depicts real children - is also reduced. The potential for further child abuse that may be encouraged or normalised by the existence of this sort of material is also reduced. See Musca v The Queen;26 JTR [132]. 101 The parties did not direct the court to any prior decisions where this court or its predecessor has considered whether an offence of possessing child exploitation material fell into the 'worst category' of an offence of its kind. Nor has our own research identified such a case. Shi contains a concise summary of a number of sentencing outcomes and reviews of prior sentencing decisions [46] - [49]. The quantity and 25 The State of Western Australia v McCarthy [71] - [73]. See also Hill v The State of Western Australia [28]. 26 Musca v The Queen [2021] WASCA 37 [76]. -- 30 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 31 nature of the child exploitation material in the present case is of a different order of magnitude to the material referred to in the decisions surveyed in Shi - at least as to the number of videos depicting sexual penetration and indecent dealing offences against girls under 6 years of age. The decisions reviewed in Shi are not of assistance for the characterisation task raised by ground 1. 102 The more recent case of JTR involved an 'enormous' amount of child exploitation material which had been methodically classified across 26 separate devices [41], [50], [104] - [105], [155], [162], [170]. That material, in aggregate, well exceeded the quantity of the images and videos the subject of count 49. However, the issues on appeal in JTR concerned the application of the totality principle. There was no mention or consideration of the individual sentences imposed for the 25 counts of possession of child exploitation material. Indeed, there was no challenge to any of the individual sentences imposed on the offender in JTR. 103 Similar difficulties arise in relying on other post-Shi decisions involving possession of child exploitation material (see eg CDL v The State of Western Australia27 and AAE v The State of Western Australia28). Conclusion on ground 1 104 We, consistently with the sentencing judge's conclusion as challenged by ground 1, would characterise the appellant's offending the subject of count 49 as being so grave as to warrant the maximum prescribed penalty. This evaluative conclusion is one that we reach adopting the approach described by Buss P in Kelly [287] - [288] as reproduced at [85] above. It excludes consideration of the circumstances of the appellant to the extent that those circumstances are mitigating. 105 It is worthwhile to examine how the issue arose before the sentencing judge before coming to the appellant's argument on appeal that her Honour mischaracterised the seriousness of the offending. 106 In written submissions provided before the sentencing hearing the State said that '[s]ome of the child exploitation material … was of the worst category of offending' (par 30). However, the submission was qualified. First, the State stated that this 'was not a large proportion' of 27 CDL v The State of Western Australia [2022] WASCA 18. 28 AAE v The State of Western Australia [2024] WASCA 35. -- 31 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 32 the material. Second, rather than stating unequivocally that the appellant's offending fell within the 'worst category' of the offence of possession of child exploitation material, the State said that the degradation and abuse of victims put the possession of the material 'at the highest end' of the scale of seriousness for offences of this type (par 30). 107 However, in sentencing submissions the prosecutor did not seek to persuade the sentencing judge that her Honour would be wrong in law to start at the maximum penalty as 'a case that is the worst example of its type' (ts 93). 108 The sentencing judge foreshadowed that she would be raising with the appellant's then counsel whether count 49 was offending of a kind within the 'worst case' of possession of child exploitation material (ts 58). During the plea in mitigation the sentencing judge proceeded to enquire of the appellant's counsel whether there were comparable child exploitation material cases (ts 69). The appellant's counsel stated: I accept that I could make no reasonable submission to you to suggest that it's anything other than the most serious example. (ts 69) 109 The appellant's counsel also agreed that the images of sexual conduct with deceased children meant that the seriousness of the offending was 'extraordinarily high' (ts 69). 110 Accordingly, the sentencing judge's characterisation of the seriousness of the offending the subject of count 49 was not contested by then counsel for the appellant. That alone cannot sustain the sentencing judge's conclusion now challenged by ground 1. The seriousness of an offence is a matter for independent curial determination rather than concession on the part of the offender or agreement by the parties. The sentencing judge was, however, entitled to take the concession into account in reaching a conclusion on whether the appellant's offending the subject of count 49 was so grave as to warrant the maximum prescribed penalty. 111 Turning to the three matters relied on by the appellant on appeal, it may be accepted that in referring to the number of images and videos the sentencing judge proceeded to quantify the child exploitation material by reference to what her Honour understood to be the material as a whole (ie the whole of the images and videos the subject of counts 49 - 51). But we do not accept that her Honour erred in the assessment of the seriousness of the offending the subject of count 49 by conflating that offending with the offending the subject of counts 50 -- 32 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 33 and 51. It was appropriate for the sentencing judge to contextualise the seriousness of the offending the subject of count 49 by having regard to the child exploitation material as a whole. 112 It is plain from the circumstance that different sentences were imposed for each of count 49, count 50 and count 51 - and that only count 49 was characterised as being in the worst category of an offence of its kind - that the sentencing judge properly had regard to the objective seriousness of each offence of possession of child exploitation material. The first aspect of the appellant's argument in support of ground 1 is not made out. The sentencing judge did not erroneously conflate the volume and nature of the material that was the subject of counts 49 - 51. In any event, what is said at [114] below would apply equally here were there to have been such an error in approach on the part of the sentencing judge. 113 However, as to the second matter relied on by the appellant, it is undoubtedly the case that the sentencing judge misstated the total quantity of the child exploitation material that was in the appellant's possession (see [71] above). The sentencing judge incorrectly referred to there being 51,086 images and 5,252 videos. Insofar as the correct number of images and videos the subject of count 49 was mentioned in the statement of material facts this is an error that might have been avoided had the sentencing judge proceeded to identify the salient features of the appellant's offending by reference to the statement. 114 The sentencing judge's misstatement as to the total quantity of the child exploitation material is not dispositive of ground 1. While particular (c) of ground 1 raised this error, and that particular is undoubtedly made out, the ground itself is concerned with the proper characterisation of the offending the subject of count 49. The appellant does not rely on express factual error. Having regard to how the appellant advanced ground 1 it is for this court to evaluate for itself whether the appellant's offending the subject of count 49 was so grave as to warrant the maximum prescribed penalty. In doing so the court is well aware of - and has had regard to - the actual number of images and videos that constituted the child exploitation material found on the appellant's iPhone (see [44] above and item 49 of the schedule). For the avoidance of doubt, a total of 2,322 images and 1,237 videos characterised as child exploitation material were located on the appellant's iPhone. 115 The third matter relied on by the appellant - ie the absence of organisation or sophistication in the storage of the child exploitation -- 33 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 34 material on the iPhone - amounts at best to the absence of an aggravating factor. It alone does not provide a determinative reason to characterise the offending as insufficiently serious to be so grave that it warrants the imposition of the maximum prescribed penalty for the offence. 116 The circumstance that a factor relevant to the seriousness of the kind of offence before the court was not present in the appellant's offending does not of itself negate the possibility that the offending is so grave that it warrants the imposition of the maximum prescribed penalty. It is true that the offending might be considered to be more serious if that additional factor was present. But that is not determinative. Once it is recognised that an offence falls within the 'worst category' it is beside the point that it may be possible to conceive of an even worse instance of the offence: Kilic [18]. The characterisation task in which we are engaged is to be performed having regard to, among other things, the seriousness of the offending. While, in this respect, it is relevant to take into account the absence of what might be an aggravating factor, the assessment must not overlook the seriousness of the offending that in fact occurred. 117 When the appellant's offending the subject of count 49 is evaluated, adopting the approach described by Buss P in Kelly [287] - [288], we are satisfied that it is an instance of the offence of possession of child exploitation material contrary to s 220 of the Code that is so grave that it warrants the imposition of the maximum prescribed penalty. 118 Our evaluative conclusion is grounded in the collective weight of a number of factors. Here, as is often the case, the overall seriousness of the offending is more than the sum of the parts. 119 First, and in our view most critically, is the nature of the child exploitation material. We will not repeat the description that is set out in detail at [46] - [47] above. There is no need for colourful adjectives to explicate the truly abhorrent nature of the material found on the appellant's iPhone. While, regrettably, it might be possible to imagine images and videos that match or exceed the depravity, perversion and sheer vileness of those possessed by the appellant, this material is of the highest order of seriousness of the child exploitation material that has come before the courts in this State. 120 Most of the material is category 1. Of the category 1 material the images and videos predominantly depict young girls (including infants -- 34 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 35 and babies) who are being subjected to full sexual penetration and other sexual dealings by adult males. The very young (and in some case extremely young) age of the children depicted in the material significantly increases the seriousness of the offending. Subjecting vulnerable babies and infants to sexual violence of the kind depicted in these images and videos involves a cruelty and brutality that marks the producers and consumers of such material as inhumane. The obvious harm being inflicted on these children by the sexual activity to which they are being subjected is of the highest level of seriousness. Nowhere is that more so than the depictions of deceased children. In possessing such material the appellant encouraged its production - and, with its production, the abuse and harming of young children (including infants and babies) that inevitably arises from activities of the kind depicted in the images and videos on the appellant's iPhone. 121 Second, concomitantly with the first factor and also dealing with the gravity of the sexual activity being depicted, it is apparent that the images are calculated to exacerbate the humiliation being inflicted on the children being subjected to the abuse. That is particularly so with the image of the blindfolded and bound naked girl. The only reasonable inference, and the inference that we draw, is that the material as a whole is intended to titillate and stimulate the viewers of the material so as to depict this sort of activity as attractive or desirable. 122 Third, so far as the appellant's personal circumstances are relevant, protection of vulnerable children and personal deterrence are highly significant sentencing considerations. 123 The sentencing judge made factual findings that are unchallenged on appeal to the effect that the appellant had a deviant sexual interest in extreme child exploitation material of the type comprised in count 49. That deviancy (and the evident sexual gratification that the appellant derived from the images and videos of sexual activity involving babies and infants in his possession) is readily apparent from the statements that the appellant made in distributing child exploitation material. It was no aberration that the appellant was in possession of child exploitation material of the type found on his iPhone - the appellant's own statements confirmed his interest in and the sexual gratification he obtained from such material. 124 Moreover, the appellant was at a high risk of reoffending and did not have insight into the harm he had caused. In that respect the appellant accepted that his offending was unlikely to have stopped without police intervention. In the circumstances the sentencing judge -- 35 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 36 was correct to conclude that the appellant presented an elevated risk to society. 125 Fourth, while care must be taken not to place disproportionate weight on this factor, there is a relatively high number of images and videos. We appreciate that there are cases, like JTR, where there are even higher numbers of images and videos. Indeed, in the present case the offending the subject of count 50 involved many more images and the offending the subject of count 51 involved a similar number of videos. There comes a point, however, where additional images and videos have only a limited impact on the overall seriousness of this kind of offending. That point was reached in the case of the offending the subject of count 49. It is enough to conclude, as we do, that the relatively high number of images and videos found on the appellant's iPhone significantly elevated the seriousness of the offence the subject of count 49. 126 The number of images and videos cannot be considered in isolation. More significant is the nature of the child exploitation material. For reasons already explained the gravity of the child exploitation in the present case is such that, when the quantity of the material is assessed, the number of images and videos is consistent with possession of child exploitation material that is so grave that it warrants the imposition of the maximum prescribed penalty. That conclusion is supported by the high proportion of category 1 videos and the perverse and highly disturbing nature of what is depicted by those videos. Also, as was explained in Minehan, it is relevant to consider the number of different children depicted. While the materials do not enable a precise finding to be made in this regard it is relevant that there was no duplication in the images or videos. Having regard to the number of images and videos, and the circumstance that there were no duplications, the only reasonable inference - and the inference that we draw - is that many hundreds of young children were depicted in the images and videos the subject of count 49. 127 Otherwise, there is some evidence of the appellant distributing and seeking to trade in child exploitation material. See in particular the facts the subject of counts 34, 43 and 47. However, these acts are limited and ought not to be given too much weight. Also, while it is relevant that the appellant possessed child exploitation material for purposes that involved further distribution, the appellant has been separately punished for the offending the subject of counts 34, 43 and 47. He is not to be doubly punished. -- 36 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 37 128 There is no suggestion that the appellant obtained any commercial gain or sought to obtain any commercial gain from the possession of child exploitation material. This, like the manner of storage of the child exploitation material, amounts to the absence of an aggravating factor. We have taken both matters into account in evaluating the seriousness of the offending. But these countervailing factors must be balanced against the other factors we have referred to together with the circumstances of the offending as a whole and the appellant's personal circumstances (to the extent that those circumstances are not mitigating). Having done so, for the reasons we have given, we are satisfied that the appellant's offending the subject of count 49 is so grave as to warrant the maximum prescribed penalty for an offence of possession of child exploitation material contrary to s 220 of the Code (adopting, in this respect, the approach described by Buss P in Kelly [287] - [288]). 129 Accordingly, the sentencing judge did not err in characterising count 49 as being in the worst category of an offence of its kind involving possession of child exploitation material such that the maximum penalty was warranted as the notional starting point for the sentence. 130 The appellant suggested that it was implicit in ground 1 that the sentence imposed on count 49 was challenged as being manifestly excessive. However, any such implicit challenge assumed that the appellant sustained his claim that the sentencing judge mischaracterised the seriousness of the offending. No independent submissions were made contending that the sentence of 5 years' immediate imprisonment was manifestly excessive absent the posited characterisation error. In the circumstances, having rejected the alleged error based on the sentencing judge having erred in characterising count 49, it is not necessary to further examine whether the sentence is manifestly excessive. 131 Ground 1 had a reasonable prospect of succeeding. There should be leave to appeal on ground 1. However, for the foregoing reasons, ground 1 fails. Disposition ground 2 - the challenge to the total effective sentence The first limb of the totality principle 132 Ground 2 alleges that the total effective sentence of 24 years and 6 months' imprisonment infringes the first limb of the totality principle. -- 37 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 38 133 A ground of appeal that asserts that a sentencing judge has infringed the first limb of the totality principle involves an allegation of implied error. In Roffey v The State of Western Australia, McLure JA (Steytler P and Miller JA agreeing) described the first limb of the totality principle in these terms: The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.29 (citations omitted) 134 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served: Roffey [26]. 135 The severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle: Giglia v The State of Western Australia30 (as explained in Gaskell v The State of Western Australia).31 136 The general principles governing appeals against sentence contending that error should be inferred on the basis that the total effective sentence infringes the totality principle are well established and need not be repeated. See for example Kabambi v The State of Western Australia32 and Ng v The State of Western Australia.33 The critical issue is whether the length of the total effective sentence is disproportionate to the overall criminality of the offending, having regard to all the circumstances of the case, including those referable to the offender personally, so as to be unreasonable or plainly unjust: Jackamarra v The State of Western Australia.34 137 A matter of primary importance to those principles is that sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court cannot substitute its own opinion for 29 Roffey v The State of Western Australia [2007] WASCA 246 [24]. 30 Giglia v The State of Western Australia [2010] WASCA 9 [40]. 31 Gaskell v The State of Western Australia [2018] WASCA 8 [56], [59], [62]. 32 Kabambi v The State of Western Australia [2019] WASCA 44 [21]. 33 Ng v The State of Western Australia [2025] WASCA 121 [86] - [95]. 34 Jackamarra v The State of Western Australia [2019] WASCA 150 [72]. -- 38 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 39 that of the sentencing judge merely because the appellate court would have exercised a sentencing discretion differently. 138 For present purposes, so far as the contention is one of implied error, it suffices to state that the ultimate question is whether on the facts the total effective sentence of 24 years and 6 months' imprisonment for the appellant's offending is unreasonable or plainly unjust such that the court must conclude that a substantial wrong has occurred: House v The King.35 The court must be driven to conclude that there must have been 'some misapplication of principle' when regard is had to all of the relevant sentencing factors (including the degree to which the sentence differs from sentences that have been imposed in comparable cases): R v Pham.36 139 For consistency purposes, it is necessary to consider any broadly comparable cases when evaluating whether a total effective sentence infringes the first limb of the totality principle. However, an absence of broadly comparable cases is not a barrier to this court finding that there has been an infringement of the totality principle: The State of Western Australia v Popal;37 Weston v The State of Western Australia.38 The parties' submissions on ground 2 140 In support of ground 2, the appellant's counsel refers to the structure of the total effective sentence and identifies distinct components that make up the 24 years and 6 months' imprisonment. Counsel accepts, quite properly, the gravity of the appellant's offending as a whole. Counsel points out, however, that the contact offending against Mylah consisted of two discrete incidents in a period of two and a half months comprising 13 separate offences. Most of the contact offences occurred during the incident on 19 August 2022 over less than a half an hour. That contact offending (together with the associated recording offending) contributed 15 years and 6 months' imprisonment to the total effective sentence. 141 This, in broad summary, is said by the appellant's counsel to be too high - and that, according to counsel, is all the more so where a further 3 years' imprisonment is accumulated for the distribution of child exploitation material offences (which itself occurred over a relatively short period). 35 House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. 36 R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28](7). 37 The State of Western Australia v Popal [2020] WASCA 200 [86]. 38 Weston v The State of Western Australia [2025] WASCA 131 [39]. -- 39 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 40 142 In inviting consideration of the sentencing outcomes in comparable cases the appellant's counsel emphasises two aspects of the appellant's offending. First, all of the contact offending involved a single victim (ie Mylah). Second, the contact offending involved only two discrete incidents (ie those on 9 July 2022 and 19 August 2022). These matters, in counsel's submission, differentiate the appellant's offending from other cases in which similarly lengthy total effective sentences had been imposed for child sex offending. Counsel refers, in this respect, to the sentences imposed in LJH v The State of Western Australia;39 RGT v The State of Western Australia;40 SCN v The State of Western Australia;41 The State of Western Australia v BKJ;42 Coulter; SAL v The State of Western Australia;43 CDL; JTR; and AAE. 143 The State accepts that the total effective sentence may properly be described as severe. It is said, however, that the 24 years and 6 months' imprisonment is not unreasonable or plainly unjust having regard to the overall seriousness of the appellant's offending. The State points out that the utility of comparable cases is often limited. That is said to be the position in the present case because of the unusual combination of offences that make up the whole of the appellant's offending. 144 The State contends that the total effective sentence properly reflected the different and distinct criminality of the appellant's varied offending. In doing so the State emphasises the appellant's entrenched deviant sexual interest in prepubescent girls, an interest that predated the birth of Mylah. The State characterises all of the offending as being of a high order of seriousness. The State says it is a serious matter that the appellant was prepared to engage in almost every level of child sex abuse - from possession of child exploitation material through to its creation and dissemination as well as contact offending against his young daughter. The comparable cases 145 The utility of comparable cases is often limited where the issue is an alleged infringement of the first limb of the totality principle. There will often be significant differences in the mix and grouping of the offences as well as the circumstances of the offending and the 39 LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355. 40 RGT v The State of Western Australia [2017] WASCA 120. 41 SCN v The State of Western Australia [2017] WASCA 138. 42 The State of Western Australia v BKJ [2018] WASCA 136. 43 SAL v The State of Western Australia [2021] WASCA 192. -- 40 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 41 offenders. See generally Pennetta v The State of Western Australia.44 As was stated in OTR v The State of Western Australia [No 2]: [T]here is limited utility in comparing total effective sentences in the context of sexual offending against children. The total effective sentence in another case can only provide very limited guidance as to whether the total effective sentence imposed in the case under appeal infringes the first limb of the totality principle where: (1) there is no established tariff for sexual offences involving children; and (2) the range of sexual offending and sexual offenders are infinitely variable. Moreover, often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.45 (citations omitted) 146 Nonetheless, in evaluating whether a total effective sentence infringes the first limb of the totality principle it remains relevant to refer to broadly comparable cases. This is so because, despite all sexual offending against children being deplorable, it is necessary to embark on a process of placing the particular offender's conduct within the scale of severity of such conduct generally. This requires the consideration of whatever guidance is afforded by broadly comparable cases: MHE v The State of Western Australia.46 147 Several of the prior decisions referred to by the appellant are not broadly comparable with the appellant's offending. For example, each of SCN, SAL and JTR involved extremely serious child sexual offending of a significantly higher order of seriousness than the offending by the appellant in the present case. SCN itself acknowledges that the offending in that case involved 'dreadful offences for which there is no true comparator' [117] being offending 'in a class of its own' [6]. 148 The appellant seemingly relied on those cases because the total effective sentence imposed on him (24 years and 6 months' imprisonment) was not dissimilar to the total effective sentences imposed in those cases - 22 years and 6 months' imprisonment in SCN, 44 Pennetta v The State of Western Australia [2013] WASCA 234 [39]. 45 OTR v The State of Western Australia [No 2] [2022] WASCA 123 [62]. 46 MHE v The State of Western Australia [2019] WASCA 133 [4]. -- 41 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 42 28 years' imprisonment in SAL and 25 years' imprisonment in JTR. However, apart from JTR, none of those prior decisions involved a serious offence of possession of child exploitation material such as has been found to be the case in relation to count 49 of the appellant's offending. Also, other than in SCN (which is a particularly heinous case where, as well as engaging in a sexual relationship with his daughter, the offender arranged for her to be provided to other men for their sexual gratification) there was contact offending against more than one child victim. 149 A degree of accumulation is to be expected where there are multiple victims. In OTR [No 2] the court stated: 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 [57] (see also [75], [81]). (citations omitted) 150 It is appropriate, keeping this in mind, to concentrate on those prior decisions that involved a single child victim. That is so notwithstanding that the present case involved two victims - the appellant offended against Avery as well as Mylah. However, the offending against Avery was appropriately marked by the order for cumulacy that accumulated one year to the total effective sentence on account of the sentence imposed in relation to count 2. Also, there was no contact offending against Avery. In the circumstances the guidance to be derived from examining the broadly comparable cases is best directed to concentrating on the total effective sentences that have been imposed as to contact offending against a single child victim. That is so notwithstanding the acknowledgement in SCN that it does not follow that a case of conduct involving one victim is necessarily less serious than one involving multiple victims [104]. 151 There are, in any case, detailed surveys of the total effective sentences imposed for sexual offending against multiple children in prior decisions such as JJR v The State of Western Australia;47 LYN v The State of Western Australia;48 and MHE [82], [85] - [92]. There 47 JJR v The State of Western Australia [2018] WASCA 51 [112] - [159]. 48 LYN v The State of Western Australia [2019] WASCA 45 [42] - [45]. -- 42 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 43 are others. See eg Mills v The State of Western Australia [No 2]49 and CAND v The State of Western Australia.50 A more recent review of the sentencing dispositions in such child sex offending cases is provided in LDF v The State of Western Australia.51 152 Much earlier comprehensive reviews were conducted in VIM v The State of Western Australia52 and The State of Western Australia v Prince.53 In VIM the court identified a sentence around 6 years and 8 months' imprisonment as being the most common sentence one would expect to see where there had been a plea of guilty [309]. In Prince McLure P described VIM as the starting point but undertook an analysis of comparable cases decided after VIM. That analysis revealed a broad range of cases where, in offending involving multiple counts of sexual offences against children including offences of sexual penetration, conviction after trial resulted in terms of imprisonment of between 6 years and 14 years and 6 months [20]. 153 Over the last 15 years the cases have acknowledged that there has been a firming up of sentences imposed for child sex offences, especially in cases involving intra-familial child sex abuse: OTR [No 2] [56]. In circumstances where the sentences have firmed up, the identification of the sentences customarily imposed is best directed to contemporary sentencing standards as revealed by more recent decisions of this court than VIM and Prince. This is not to doubt the matters of principle addressed in the earlier cases. VIM, in particular, continues to resonate in terms of its identification of factors relevant to identifying the seriousness of offending and its recognition of the effect of prolonged sexual offending against a child. See generally VIM [285] - [295], [320] - [321], [324] - [325]. 154 We have had regard to the sentencing reviews referred to in the prior decisions mentioned above. The survey in MHE has been particularly influential and is thus something that bears close consideration. That said, in view of the circumstance that the decisions are predominantly concerned with sexual offending against multiple children, it is enough to incorporate the relevant passages without repeating what is stated in them. 49 Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484 [46] - [52]. 50 CAND v The State of Western Australia [2018] WASCA 101 [50] - [57]. 51 LDF v The State of Western Australia [2025] WASCA 193 [75] - [86]. 52 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [298] - [315]. 53 The State of Western Australia v Prince [2011] WASCA 22 [19] - [20]. -- 43 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 44 155 There are, nonetheless, two important matters to be drawn from MHE: 1. In MHE Mitchell and Beech JJA recognised that the need to give significant mitigating effect to a plea of guilty has often been emphasised in cases involving sexual offending against children - this extends to the mitigating effect of pleas of guilty being reflected in the total effective sentence [83], [89]. To similar effect see LYN [51]. 2. Mitchell and Beech JJA also identified in MHE that there are only a limited number of post-2011 cases in which a total effective sentence of 12 years' imprisonment or more has been imposed in respect of child sex offending following pleas of guilty [85]. Excluding SCN (which, as already explained, is in a different category of seriousness and is of no assistance as a comparator as concerns the appellant's offending) of those decisions mentioned in MHE only one guilty plea decision involving a single victim resulted in a total effective sentence that exceeded 12 years' imprisonment. That was BKJ (as to which see [164] - [166] below). 156 In focusing on the total effective sentences imposed for child sex offending against a single victim, it is possible to put to one side RGT (three victims - 16 years' imprisonment); CDL (four victims - 12 years and 6 months' imprisonment); and AAE (two victims - 17 years and 6 months' imprisonment). CDL and AAE are, however, worth some examination so far as the offending in those cases involved a count of possession of child exploitation material. 157 CDL concerned an offender who was convicted after trial of three counts of persistently engaging in sexual conduct with a child. The sexual conduct consisted of numerous indecent dealings which were recorded by the offender. In that respect the nature of the sexual offending in CDL is not comparable with the more serious sexual penetration offences in the present case. The offender was also convicted, by verdict, of five counts of producing child exploitation material (including in respect of a fourth child) and, on a late plea of guilty attracting a s 9AA reduction of 5%, of one count of possessing child exploitation material. The child exploitation material amounted to 26,425 videos and images (of which there were 1,418 images and 731 videos depicting penetrative sexual activity between children and adults). The individual sentence imposed on the count of possessing child exploitation material was 12 months' immediate imprisonment to -- 44 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 45 be served cumulatively. However, the 12 months was reduced from 3 years' imprisonment for reasons of totality. This court refused leave to appeal in relation to a total effective sentence of 12 years and 6 months' imprisonment. 158 The offender in AAE committed 52 offences including offences of sexual penetration of, indecent dealing with and indecent recording of his daughter (aged 4 years old) and his son (aged between 7 and 8 years old). There were 45 contact offences over 20 incidents in an 11-month period including offences of digital-vaginal penetration, penile-vaginal penetration and penetrating his daughter's vagina with a sex toy. The offender also attempted to penetrate his daughter's anus with his penis. The offending was recorded in photographs and videos. In addition, the appellant possessed 86 images and 27 videos of child exploitation material. 159 The offender received a 20% s 9AA reduction for his pleas of guilty. An appeal against a total effective sentence of 17 years and 6 months' imprisonment on the ground that it infringed the first limb of the totality principle was unsuccessful. However, leave to appeal was granted. This court characterised the total effective sentence as 'undoubtedly high' [4]. The contact offending in AAE was more serious than the contact offending in the present case; but the offence of possession of child exploitation material in AAE was less serious than the offence of possession of child exploitation material in the present case. 160 The single child victim sexual offending decisions referred to by the appellant commence with LJH (a 2016 decision). There are relevant decisions that pre-date LJH. In summarising the sentencing outcome of some of those decisions it suffices to draw from the comprehensive survey in JJR [112] - [115], [122] - [124], [128] - [130], [134] - [135], [139] - [141], [154] - [156]. 161 The pre-LJH single child victim sexual offending decisions include: 1. KMB v The State of Western Australia54 - the offender was convicted after trial of seven sexual offences against his stepdaughter. The victim was aged between 8 and 18 years old at the time the offences were committed (ie the offending spanned a 10-year period). The offences included digital-vaginal penetration and penile-vaginal penetration 54 KMB v The State of Western Australia [2010] WASCA 212. -- 45 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 46 (including ejaculation into the victim's vagina). The victim became pregnant at the age of 12 years old and the offender arranged for her to have an abortion. An appeal against a total effective sentence of 14 years and 6 months' imprisonment was dismissed. 2. MAS v The State of Western Australia55 - the offender was sentenced to 12 years' imprisonment following convictions after trial on 25 sexual offences. There was seven years of offending conduct, commencing when the victim was 11 or 12 years old, including digital-vaginal penetration, penile-vaginal penetration and penile-anal penetration together with penile-oral penetration and cunnilingus. The victim was the daughter of the offender's de facto spouse. When the victim was 16 years old she fell pregnant to the offender and was forced by the offender to have an abortion. An appeal alleging infringement of the totality principle was dismissed. 3. CJF v The State of Western Australia56 - the offender was convicted after trial on two counts of indecent dealing with and four counts of sexually penetrating his de facto child. The penetration offences included digital-vaginal penetration and penile-vaginal penetration. The victim was 12 - 13 years old at the time of the offences; however, it was found that the counts were representative of a continuing course of sexual abuse that commenced when the victim was 9 years old. The offender was repeatedly violent towards the victim. After a successful appeal against sentence this court resentenced the offender to a total effective sentence of 12 years' imprisonment. 4. SG v The State of Western Australia57 - the offender was convicted after trial of various counts of indecent dealing with, sexual penetration of and aggravated sexual penetration of his de facto daughter. The victim was 11 - 16 years old at the time of the offences. The victim fell pregnant because of the offending when she was 15 years old. The offender had no remorse and was assessed to be at a moderate to high risk of reoffending. An application for leave to appeal against a total effective sentence of 12 years' imprisonment was refused. 55 MAS v The State of Western Australia [2012] WASCA 36. 56 CJF v The State of Western Australia [2012] WASCA 69. 57 SG v The State of Western Australia [2013] WASCA 236. -- 46 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 47 5. ARK v The State of Western Australia58 - the offender was convicted after trial of eight counts of aggravated sexual penetration and one count of attempted aggravated penetration of his de facto daughter (aged between 11 and 15 years old at the time of the offences). The offences included digital-vaginal penetration and penile-vaginal penetration and were representative of an ongoing course of conduct. The offences were aggravated by physical aggression, manipulation and intimidation. The court refused an application for leave to appeal against a total effective sentence of 12 years' imprisonment on the ground that the sentence infringed the first limb of the totality principle. Pullin JA relevantly observed that the prior decisions for comparable offences ranged from 6 - 14 years' imprisonment and of the eight cases considered there was a total effective sentence of 12 or more years' imprisonment in five cases [94]. 6. KSN v The State of Western Australia59 - the offender was convicted after trial of a series of sexual offences against his de facto stepdaughter. These included four occasions of digital-vaginal penetration, three occasions of penile-oral penetration, five occasions of penile-vaginal penetration and one occasion of penile-anal penetration. The offending commenced when the victim was about 11 or 12 years old and continued until she was about 16 years old. The offending conduct involved the use of threats and force. An application for leave to appeal against a total effective sentence of 12 years' imprisonment was refused. 162 Mention should also be made of the 2015 decision of The State of Western Australia v PJW.60 PJW preceded JJR but was not referred to in JJR. In PJW the offender was convicted after trial on nine counts of sexual offending against his stepdaughter (then aged 7 - 8 years old). The offending persisted over 10 months and was comprised of six discrete incidents. Among other things it included penile-oral penetration (in which the offender ejaculated in the victim's mouth), cunnilingus, penile-vaginal penetration, digital-anal penetration (two counts) and penile-anal penetration (two counts). A number of the offences were committed while the victim was sleeping in her bed. The victim was said to be especially vulnerable and defenceless. The 58 ARK v The State of Western Australia [2014] WASCA 45. 59 KSN v The State of Western Australia [2017] WASCA 156. 60 The State of Western Australia v PJW [2015] WASCA 113. -- 47 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 48 importance of personal deterrence as a sentencing factor was underscored by the fact that the offender had previous convictions for sexual offending against a child. After a successful State appeal the offender was resentenced to a total effective sentence of 9 years' imprisonment. 163 LJH, unlike the preceding seven decisions, involved convictions following pleas of guilty. The offences consisted of 26 counts of sexual penetration of a de facto child under the age of 16, two counts of procuring a de facto child under the age of 16 to engage in sexual behaviour, 13 counts of indecently recording a de facto child under the age of 16 and two counts of possession of child exploitation material. The victim, the offender's de facto stepdaughter, was between 14 and 15 years old when the offences were committed. The offending extended over nearly two years. The offences included digital-vaginal penetration, penile-oral penetration, nine counts of penile-vaginal penetration, penetration of the victim's vagina with a dildo and anal penetration of the victim with a sexual device. Many of the offences were video recorded by the offender. An appeal against sentence succeeded. This court resentenced the offender to a total effective sentence of 10 years' imprisonment. The pleas of guilty resulted in a s 9AA reduction of 20%. 164 BKJ was a State appeal. This court dismissed an appeal against the imposition of a total effective sentence of 14 years' imprisonment. The State alleged that the sentence was manifestly inadequate. The offender pleaded guilty to 58 sexual offences in relation to his biological daughter and three counts involving child exploitation material. The offences included nine counts of indecent dealing, 19 counts of sexual penetration and 24 counts of indecent recordings. There were also offences of procuring the victim to sexually penetrate the offender (three counts) and procuring the victim to perform indecent acts (three counts) as well as distributing and possessing child exploitation material. The offender received a s 9AA reduction of 25% for his pleas of guilty. 165 The contact offending in BKJ was significantly more serious than the offending in the present case. It spanned 10 years while the victim was between 2 and 12 years of age. The offending included counts of penile-vaginal penetration, counts of penile-anal penetration and egregious features that included the penetration of the victim's vagina and anus with various implements (including a bottle, a dildo, a carrot and a screwdriver). Some of the offending involved the use of bondage objects and the filming and uploading of the offending behaviour. -- 48 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 49 However, there was a mitigating feature in addition to the guilty pleas - the offender revealed additional offences that would not otherwise have come to light and disclosed incriminating material that was not located during the execution of a search warrant. 166 While the State appeal in BKJ was dismissed the court stated that the total effective sentence of 14 years' imprisonment 'fell to the lower end of [the] range' [158]. 167 Neither party referred to CAND or YDN v The State of Western Australia61 (both of which are discussed in LYN [44] - [45]). 168 In CAND this court upheld a total effective sentence of 9 years and 6 months' imprisonment imposed after trial. The offender sexually abused the single victim (his de facto child) on a regular basis. The offending started when the victim was around 5 or 6 years old. The offender was convicted of three counts of indecent dealing and two counts of sexual penetration (involving cunnilingus and penile-oral penetration). The counts on which the offender was convicted were representative of a continuing course of conduct. The offending occurred over a 10-year period. 169 In YDN the offender treated his biological daughter as his regular sexual partner from about the time she was 15 years old. The offender pleaded guilty to several sexual offences under s 329 of the Code including indecent dealing and sexual penetration offences. Regular sexual intercourse took place between the offender and his underage daughter - they engaged in sexual contact between two to five times every week over a period of about three years. The offences were significantly aggravated by many of them being recorded by the offender. There were other offences involving child exploitation material and drugs. An express sentencing error was established. In resentencing, after providing for a s 9AA reduction of 25%, this court imposed a total effective sentence of 11 years and 6 months' imprisonment. 170 Viewed in chronological order, the next decision of those relied on by the appellant is Coulter. This can be dealt with relatively briefly. Coulter is not broadly comparable with the present case. The contact offending in Coulter was substantially more serious than the contact offending in the present case. The offender in Coulter was one of three persons who offended against a girl aged 6 - 7 years old over a one-year period. The co-offenders were the victim's mother and the mother's 61 YDN v The State of Western Australia [2018] WASCA 62. -- 49 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 50 partner. The offender pleaded guilty to 18 sexual offences including one count of persistently engaging in sexual conduct with a child and offences of indecent dealing (three counts) and sexual penetration (12 counts) together with indecent recording offences (two counts). This court allowed an appeal and resentenced the offender to a total effective sentence of 17 years' imprisonment. The offence of persistently engaging in sexual conduct with a child, although not within the 'worst category', was said to be a 'very serious example of its type' [59]. 171 MHE is a 2019 decision. In MHE Mitchell and Beech JJA observed that since Prince (a 2011 decision) there are only a limited number of decisions in which a total effective sentence of 12 years' imprisonment or more have been imposed following pleas of guilty to child sex offending [85]. Moreover, as we have observed, excluding SCN given its unique nature, only one of the decisions identified by Mitchell and Beech JJA concerned a single victim (this was BKJ in 2018). After MHE, Coulter is a single victim child sex offending decision in which a total effective sentence greater than 12 years' imprisonment was imposed following pleas of guilty. But, as we have explained, the contact offending in Coulter was substantially more serious than the contact offending in the present case. Coulter is not an apt comparator for present purposes. 172 Separately, in MHE Mitchell and Beech JJA identified only three decisions involving cases of sexual offending in which total effective sentences between 10 and 12 years' imprisonment were imposed after pleas of guilty (only one of which involved a single victim - ie LJH) [88]. To those decisions should be added the decision of YDN (another single victim of child sex offending where the offender pleaded guilty). 173 MHE itself involved an offender who entered early pleas of guilty to sexual offending against his three de facto children (aged 8, 11 and 15 years old at the time of the offending). This included 66 indecent dealing offences and 21 sexual penetration offences on 14 separate days over a year. The offender was found to have persistently and callously treated one of the children as a sexual plaything for his own sexual gratification. The penetration offences included penile-oral penetration and digital-vaginal penetration. There was, however, no penile-vaginal or penile-anal penetration, something of evident importance to the court in evaluating the relative seriousness of the offending [96]. The sentencing judge imposed a total effective sentence of 12 years and 6 months' imprisonment. This was reduced on appeal to 10 years' imprisonment. -- 50 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 51 174 In terms of post-MHE decisions, the appellant referred to Coulter, SAL, CDL, JTR and AAE. It is not necessary to say anything further about those decisions. There are, however, several additional decisions, not referred to by either party, which should be mentioned. Again, we will concentrate on the decisions which are concerned with child sex offending against a single victim. In chronological order the further decisions are The State of Western Australia v AHD;62 Newton v The State of Western Australia;63 NQB v The State of Western Australia;64 and PMY v The State of Western Australia.65 Viewed as a whole these decisions evidence a degree of firming up in total effective sentences for such offending - in part due to the increased seriousness of the offending. 175 In AHD, following a successful State appeal, the offender's total effective sentence was increased to 12 years' imprisonment (although Buss P would have increased the total effective sentence to 13 years' imprisonment). The offender pleaded guilty to offending against his de facto daughter over a two and a half year period while she was between 6 and 8 years of age. The guilty pleas resulted in s 9AA reductions of between 15% - 25%. The six counts on the indictment were representative of an ongoing course of conduct. The offending included penile-oral penetration, penile-vaginal penetration and penile-anal penetration. The sexual abuse was initially accompanied by non-sexual violence which demonstrated to the victim the futility of resistance. 176 The offender covered the victim's face when committing some of the offences, thereby increasing her vulnerability. The offender had a venereal disease (gonorrhoea) which he transmitted to the victim in committing the last offence. The victim required surgery and a nine-day hospital stay. She continued to experience abdominal pain and had difficulty controlling her bowels. The victim was left highly disturbed and traumatised from the offending. Also aggravating was that, when the victim reported the abuse, the victim's mother believed the offender's denials - with the result that the abuse continued; and that some of the abuse occurred while the offender was on bail subject to protective conditions. 62 The State of Western Australia v AHD [2021] WASCA 13. 63 Newton v The State of Western Australia [2023] WASCA 7. 64 NQB v The State of Western Australia [2024] WASCA 93. 65 PMY v The State of Western Australia [2025] WASCA 113. -- 51 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 52 177 Importantly, in AHD Quinlan CJ and Mitchell JA stated: The review of previous decisions in MHE shows that total effective sentences in excess of 10 years' imprisonment are relatively uncommon in cases involving a single victim in circumstances where the offender has pleaded guilty at an early stage of the proceedings [4]. 178 In providing for a total effective sentence that exceeded 10 years' imprisonment, notwithstanding the offender's guilty pleas, Quinlan CJ and Mitchell JA identified 'four exceptional features which very significantly aggravate the overall seriousness' of the offending [7]. These were: the complicity of the victim's mother and its implications for the victim's vulnerability; the offender committing some of the offences in breach of protective bail conditions; the particularly severe psychological impact on the victim; and the infection of the victim with gonorrhoea [8] - [11]. Their Honours considered that these aggravating factors combined 'to make this an exceptionally serious case of child sexual offending against a single victim' [12]. 179 Newton is slightly different from most of the other decisions in that the offender repeatedly sexually abused his friend's young daughter. The offending commenced when the victim was 8 years old and continued for four and a half years. The offender was convicted, on his pleas of guilty, of 43 offences. These included seven indecent dealing counts, 11 counts of sexually penetrating a child under 13 years old and 22 indecent recording counts. There were also two counts of possessing child exploitation material (totalling more than 11,000 images and videos). In addition, the offender failed to obey a data access order. The sexual penetration offences included six instances of penile-oral penetration and five instances of penile-vaginal penetration. The offender photographed much of his abuse of the victim. 180 The offender received a s 9AA reduction of 25%. He was sentenced to a total effective sentence of 12 years and 6 months' imprisonment. An appeal on the basis that the total effective sentence infringed the first limb of the totality principle was dismissed. However, the court granted leave to appeal. The court accepted that the total effective sentence was 'certainly high' [7], [73] (also saying it was 'certainly severe' [63]) and characterised it as 'at the upper end of the range of sentences customarily imposed following pleas of guilty for offending of this type' [7], [73]. The court mentioned that one distinguishing feature was that the offender recorded the offending for his gratification [7], [66]. -- 52 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 53 181 NQB and PMY are two recent decisions in which this court resentenced an offender who pleaded guilty to multiple child sex offences against a single victim. 182 In NQB the offender committed 10 offences over a three-year period against his stepdaughter (who was then between 12 and 15 years of age). These included indecent dealing (one count), attempted sexual penetration (one count) and sexual penetration (eight counts). The sexual penetration offences included penile-digital penetration, penile-oral penetration, cunnilingus, penile-vaginal penetration and penile-anal penetration. The offences were representative of a continuous course of conduct. The offender persisted in the conduct even when the victim expressed reluctance and pain. There were other relevant contextual matters including that the offender had shaved the victim's pubic area and showed her pornography purporting to depict fathers having sex with their children. Following a successful sentence appeal based on infringement of the first limb of the totality principle the offender was resentenced to 11 years and 6 months' imprisonment. The court allowed a s 9AA reduction of 15% on account of the offender's guilty pleas. 183 In PMY the court allowed a sentencing appeal as the s 9AA reduction afforded to the offender by the sentencing judge was manifestly inadequate. The offender committed 40 sexual offences against his biological daughter (then between 11 and 14 years of age) and also pleaded guilty to five counts of possession of child exploitation material. The sexual offences included indecent dealing offences (eight counts), sexual penetration offences (21 counts) and indecent recording offences (11 counts). 184 The offending against the daughter took place over 14 separate incidents. It included multiple instances of digital-vaginal penetration, penile-oral penetration and penile-vaginal penetration, most of which was recorded. The offender also inserted a sex toy into the victim's vagina. The victim said that she and the offender had sex 'quite a lot'. As a result of the last count of penile-vaginal penetration the victim became pregnant and bore the offender's child. The offending was brazen. Sometimes it occurred when other children were in the house. On one occasion it occurred when there were other children in the room. 185 In resentencing the offender in PMY the court allowed for s 9AA reductions of between 20% and 22% and imposed a total effective sentence of 12 years' imprisonment. -- 53 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 54 186 The last decision we will mention is LDF. This is a two-victim child sex offending case rather than a single victim child sex offending case. However, it is a recent decision in which an appeal against sentence was allowed. This court upheld a ground alleging infringement of the first limb of the totality principle and thereafter resentenced the offender. 187 There were, as mentioned, two victims - twin sisters aged between 6 and 9 years old at the time of the offences. The offender, who was treated by the children as an uncle, committed 31 child sex offences over three and a half years. He was convicted after trial. The offending consisted of 14 indecent dealing offences and 17 offences of sexual penetration. The penetration included digital-vaginal penetration, penile-oral penetration, cunnilingus and penile-vaginal penetration (the sentencing judge finding that the two instances of the latter were not forceful or physically painful for the victims). 188 The offender in LDF was resentenced to a total effective sentence of 16 years' imprisonment. The court observed that the case was broadly comparable to cases attracting a total effective sentence between 12 and 16 years' imprisonment (with the sentences at the lower end of the range being ones where the offender had pleaded guilty and received a s 9AA reduction) [85]. The cases that the court referred to as 'useful comparators' involved total effective sentences that ranged from 12 years' imprisonment to 17 years and 6 months' imprisonment [74] - [83]. 189 The foregoing review has been directed to identifying the usual range of total effective sentences in cases of serious intra-familial sexual offending against children (there being, in each case, at least some sexual penetration offences). All cases involved multiple offending by the offender - in other words the offending was not isolated. The pattern that emerges as to contemporary sentencing standards in such cases may be summarised as follows: 1. There are a small number of outlier cases in which total effective sentences approaching or exceeding 20 years' imprisonment have been imposed for child sex offences against a single victim notwithstanding guilty pleas by the offender. These cases - the two most prominent examples of which are SCN and Coulter - involve extremely serious offending in a class of its own with aggravating features of the kind summarised in LDF [73]: the use of sex toys; the -- 54 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 55 administration of stupefying drugs; the infliction of injuries; and the provision of the child to strangers for sexual gratification. 2. So too, there are a small number of outlier cases in which, notwithstanding guilty pleas, extremely serious child sex offending in a class of its own against multiple victims has resulted in total effective sentences of 25 years' imprisonment or more. See eg SAL (28 years) and JTR (25 years). 3. In a single victim case, where the offender has pleaded guilty at an early stage, total effective sentences of 10 years' imprisonment or more are relatively uncommon: AHD [4] (referring to MHE [85], [88]). Cases where such a total effective sentence was imposed include LJH (10 years), BKJ (14 years), YDN (11 years and 6 months), AHD (12 years), Newton (12 years and 6 months), NQB (11 years and 6 months) and PMY (12 years). A total effective sentence of 12 years and 6 months' imprisonment following guilty pleas is at the upper end of the range customarily imposed for offending of this kind: Newton [7], [73]. 4. Indeed, even where convictions are recorded after trial, the sentences imposed on an offender in a single victim case range from 9 years' imprisonment (PJW) to 14 years and 6 months' imprisonment (KMB). There is a higher preponderance of total effective sentences at or around 12 years' imprisonment (eg MAS - 12 years; CJF - 12 years; SG - 12 years; ARK - 12 years; KSN - 12 years). However, consistently with what was observed by Pullin JA in ARK, there are also examples of such cases where the total effective sentence exceeded 12 years' imprisonment (see ARK [94]). 5. The total effective sentences are higher where there are multiple victims. It has not been necessary to conduct a thorough review of this kind of offending (although we have referred to the relevant passages in JJR, MHE and LDF). By reference to those decisions and the other decisions we have mentioned, although lesser sentences were imposed pre-2016, over the last 10 years the total effective sentences imposed for such offending range from around 10 - 12 years' imprisonment (the resentencing in MHE and LYN respectively) up to 17 years and 6 months' imprisonment (the 'undoubtedly high' sentence upheld in AAE). The sentences toward the lower end of this range were generally imposed following pleas of guilty (LDF [85]). -- 55 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 56 That said, there are examples where sentences towards the upper end of the range were imposed after pleas of guilty (eg RGT - 16 years; AAE - 17 years 6 months). 190 It remains the case, as Mitchell and Beech JJA observed in MHE, that with serious intra-familial child sex offending, total effective sentences that exceed 15 years' imprisonment are 'relatively rare' even following conviction after trial [89]. 191 The totality issue raised by ground 2 requires consideration of the sentences imposed in broadly comparable cases. It must, however, be borne firmly in mind that a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. The guidance afforded by comparable cases is flexible rather than rigid. There is no single correct sentence. The range of sentences which have historically been imposed does not establish the outer bounds of the permissible discretion - the historical range simply stands as a yardstick against which to examine the sentence the subject of the appeal. Customary sentencing standards provide a yardstick for ensuring broad consistency. But they are simply one factor - not a controlling factor - in evaluating whether a sentence is unreasonable or plainly unjust in the circumstances of a specific case. See Hodges v The State of Western Australia.66 192 What is sought is consistency in the application of the relevant legal principles rather than some numerical or mathematical equivalence: Hodges [74](3). 193 Many factors must be taken into account in assessing the seriousness of a course of conduct involving child sex offences. These factors include: the number of victims; the number and type of offences and the overall gravity of the sexual activity encompassed by the offences (including whether there was any circumstance of degradation or humiliation and the extent of any perversity or deviancy to which the victim or victims were subjected); the age of the victim or victims; the disparity between the age of the offender and the age or ages of the victim or victims; the vulnerability of the victim or victims; the length of time over which the offending continued; the nature of the relationship between the offender and the victim or victims (including the extent of any breach of trust); the extent to which the violence inherent in all child sex offending was accompanied by non-sexual violence; whether the offender groomed the victim or victims; whether 66 Hodges v The State of Western Australia [2025] WASCA 136 [74] - [76]. -- 56 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 57 by threat, intimidation, coercion or otherwise the offender has prevailed on the victim or victims to conceal or not to report the offending; whether the offending was recorded and, if so, whether any recording has been published or disseminated; and, most critically, the physical or mental harm that has been or is likely to be suffered by the victim or victims as a result of the offending. 194 In a particular case there may be other aggravating factors that elevate the overall seriousness of the offending. 195 The primary sentencing considerations are appropriate punishment of the offender and personal and general deterrence - these considerations being informed by the need to protect vulnerable children. Matters personal to the offender, while not irrelevant, are ordinarily subsidiary considerations carrying less weight. See OTR [No 2] [55]. Conclusion on ground 2 196 The total effective sentence of 24 years and 6 months' imprisonment imposed on the appellant in the present case is comprised of five distinct components as follows: 1. A cumulative sentence of 1 year' imprisonment in relation to one of the recording offences as to Avery (there being two recordings on one occasion). 2. Cumulative sentences of 12 years and 6 months' imprisonment in relation to six of the contact offences against Mylah (there being a total of seven counts of sexual penetration and six counts of indecent dealing over two occasions, the more significant of which was the incident on 19 August 2022 over a period slightly less than half an hour). 3. Cumulative sentences of 3 years' imprisonment in relation to three of the recording offences as to Mylah (there being 18 recordings of Mylah on three occasions). 4. Cumulative sentences of 3 years' imprisonment in relation to two of the distribution of child exploitation material counts (there being 15 distribution counts over a five-day period). 5. A head sentence of 5 years' imprisonment in relation to one of the possession of child exploitation material counts (there being three such possession counts). -- 57 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 58 197 The recording offences the subject of cumulative sentences were all part of incident 3 on 19 August 2022. Accordingly, for the purpose of analysis, the appellant's counsel suggested that this component of 3 years' imprisonment ought to be aggregated with the sentences accumulated as to the contact offending on 19 August 2022, thereby providing for cumulative sentences of 15 years and 6 months' imprisonment for all of the contact and recording offending in relation to Mylah. Counsel argued that this was disproportionate having regard to the total effective sentences imposed in the comparable cases (appeal ts 23 - 24). 198 It is understandable that the appellant advances this form of analysis. It provides for a simpler comparison with the broadly comparable cases. But, while this approach is suggested to simplify the analysis, it is inconsistent with principle. The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety. Accordingly, it is necessary to have regard to the totality of the appellant's offending, and the total effective sentence, rather than dissect the total effective sentence into identifiable components and consider the appropriateness of the contribution that each identifiable component makes to the total effective sentence. That is all the more so when it is recalled that where the principle of totality comes into effect it is of little importance how the total effective sentence is made up. In arriving at a just and appropriate aggregate sentence it might be that identifiable components of the total effective sentence are disproportionate when viewed in isolation - one adversely to the offender and the other favourably to the offender - but overall the aggregate sentence is commensurate with the seriousness of the offending as a whole. 199 In any event, little turns on this issue as to the proper approach to the analysis. Either way we would find that the total effective sentence of 24 years and 6 months' imprisonment infringes the first limb of the totality principle. The total effective sentence is unreasonable or plainly unjust in the sense discussed in the authorities and signifies that a substantial wrong has occurred. For the reasons that follow we are driven from the sentencing outcome to conclude that there has been a misapplication of principle. 200 The appellant was convicted on his pleas of guilty of 51 offences. However, that bare number exaggerates the seriousness of the overall criminality involved in the offending. Twenty-seven counts arise from the third incident over less than 30 minutes on the night of 19 August -- 58 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 59 2022. The 27 individual counts to which the appellant pleaded guilty are increased by the recording offences and the choice, by the prosecution, to charge separately for each time an indecent dealing or sexual penetration stopped and resumed. Another 15 counts - nearly one third of the offences - are comprised in the distribution of child exploitation material that occurred over a five-day period in September 2022. Also, separate offences of possession of child exploitation material are charged for the three devices in the appellant's possession that held such material. Again, while it was open to the prosecution to increase the number of offences by proffering separate charges in this manner, the reason that there are three charges rather than one charge comes back to the choice made by the prosecution. 201 The appellant's offending against Avery was at the lower end of the scale of seriousness. Insofar as, having offended against both Avery and Mylah, the appellant offended against multiple victims, it was reasonably open to the sentencing judge to order a degree of accumulation on account of the additional offending against Avery. Such accumulation was reasonable and appropriate to properly mark the appellant's overall criminality. There was no infringement of the first limb of the totality principle by reason of the sentencing judge ordering that the sentence of 1 year' imprisonment on count 2 in relation to Avery was to be served cumulatively. 202 The appellant's offending against Mylah - although representative of other offending - predominantly consisted of three incidents over two and a half months. One of those incidents (incident 4 on 21 September 2022) was confined to a single recording offence. The sexual offending on 9 July 2022 (incident 2) was limited to pulling open Mylah's vagina and digital-vaginal penetration. The sexual offending on 19 August 2022 (incident 3) is considerably more serious. It is, however, a single series of offences over one incident that was limited in duration. The offending was undoubtedly reprehensible and included digital-vaginal and penile-vaginal penetration as well as the indecent dealings we have described. The incident was partly recorded and was also the subject of still photographs. By contrast, the child sex offending cases against a single victim that have resulted in total effective sentences exceeding 10 years' imprisonment despite pleas of guilty generally involve offending on many multiple occasions extending over far greater periods. Indeed, the offending in those cases often extended over many years. Also, while all such sexual offending against children is deplorable, the sexual penetration offences committed against Mylah approaches but does not reach the middle of -- 59 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 60 the range of seriousness - let alone being toward the upper range of seriousness. 203 In reaching our conclusion as to the place that the offences occupy on the scale of seriousness we have not overlooked that the appellant's contact offending against Mylah on 19 August 2022 had serious features. In addition to the circumstance that the appellant was offending against his daughter for his own sexual gratification there is Mylah's very young age and consequent vulnerability; the appellant's abuse of his position of trust; the recording of the offending; and the appellant's persistence in continuing with the offending despite Mylah being obviously upset. 204 Even so, the objective seriousness of any offending is a relative concept. The appellant's contact offending against Mylah on 19 August 2022 and on the other occasions did not have as many serious features and was not as grave as the child sex offending against a single victim in prior decisions such as PJW (which resulted in a total effective sentence of 9 years' imprisonment following conviction after trial) or LJH (which, after resentencing, resulted in a total effective sentence of 10 years' imprisonment following pleas of guilty). The same is true of each of YDN, NQB, AHD, PMY and Newton (each of which resulted in a higher total effective sentence than the 10 years' imprisonment in LJH). 205 Consideration of the broadly comparable cases as to single victim child sex offending - especially those involving pleas of not guilty - provides strong support for the conclusion that error ought to be implied. So far as the appellant's total effective sentence is attributable to the contact and recording offending against Mylah it well exceeds the top of the range for serious intra-familial child sex offending of its kind while not exhibiting as many serious features and not being as grave as the child sex offending in the prior decisions that establish the top of the range. 206 There is another aspect to the appellant's offending against Mylah. One of the offences of distribution of child exploitation material involved images of Mylah. This increased the seriousness of the overall criminality of the appellant's offending, as did the other distribution offences. That said, the more significant feature of the overall criminality involved in the appellant's offences as a whole is the very serious nature of the appellant's offences of possession of child exploitation material. In that respect it suffices to repeat that the offending the subject of count 49 is so grave as to warrant the -- 60 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 61 maximum prescribed penalty for an offence of possession of child exploitation material contrary to s 220 of the Code. 207 It may be accepted, consistently with the State's position on the appeal, that the appellant's offences of possession of child exploitation material substantially increased the overall criminality involved in all of the appellant's offending. However, in our opinion, that feature of the appellant's offending cannot account for the marked disparity between the total effective sentence imposed on the appellant and the aggregate sentences in the broadly comparable cases. Nor, in our opinion, is this marked disparity capable of explanation by the need for protection of the community and the enhanced role for personal deterrence that applies to the appellant given his deviant paedophilic sexual interest. That, after all, is often a common feature in offending of this kind. 208 The State accepted that the total effective sentence of 24 years and 6 months' imprisonment imposed on the appellant was 'severe' (State's submissions, par 38). That is a considerable understatement. The totality principle requires the total effective sentence imposed on an offender who has committed multiple offences to be a just and appropriate measure of the total criminality in the offending as a whole having regard to: (1) all relevant facts and circumstances including those referable to the offender personally; (2) all relevant sentencing factors; and (3) the total effective sentences imposed in comparable cases. In the present case, having reviewed those matters and having revisited what we have said about them in the earlier parts of these reasons, we are well satisfied that the total effective sentence of 24 years and 6 months' imprisonment imposed by the sentencing judge does not bear a proper relationship to the total criminality of the appellant's offending as a whole. 209 Two matters have particular force in compelling the conclusion that the total effective sentence of 24 years and 6 months is disproportionate to the overall criminality of the appellant's offending. First, while appropriate consideration must be given to the appellant's additional offending comprised in distributing and possessing child exploitation material - the latter being particularly serious offending of its kind - the offending against Avery and Mylah does not fall into that more grave category of child sex offending that justifies a sentence at the upper end of the range that emerges from the broadly comparable cases. Yet such a characterisation is implicit in the total effective sentence imposed by the sentencing judge. Second, the total effective sentence of 24 years and 6 months is not consistent with appropriate weight being given to the appellant's pleas of guilty to all of his -- 61 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 62 offences at the first reasonable opportunity. Individually, and all the more so collectively, these two matters bespeak implied error. In all the circumstances error must be inferred from the total effective sentence that was imposed by the sentencing judge. 210 Ground 2 succeeds. There should be leave to appeal on ground 2 and the appeal should be allowed. As the appellant has established that the appeal has merit there should be an extension of time to appeal. It is necessary to proceed to resentence the appellant. Resentencing and orders 211 This court has sufficient materials to resentence. 212 We will not repeat the facts and circumstances of the offending or the appellant's personal circumstances. We rely on what has been set out above. The appellant did not challenge any of the individual sentences. The individual sentences are appropriate. We would impose the same sentences for the individual counts. In doing so, like the sentencing judge, we would allow a reduction of 25% pursuant to s 9AA of the Sentencing Act in respect of the appellant's pleas of guilty. Accordingly, there is no need to interfere with the individual sentences as ordered by the sentencing judge. We would, however, set aside the sentencing judge's orders for concurrency and cumulacy. 213 In the application of the totality principle, based on the matters we have referred to in dealing with ground 2 and again relying on the facts and circumstances of the offending and the appellant's personal circumstances as previously stated, we would impose a total effective sentence of 18 years' imprisonment. A total effective sentence of 18 years' imprisonment bears a proper relationship to the overall criminality involved in all of the appellant's offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the appellant personally, and to all relevant sentencing factors and considerations. In giving effect to the totality principle the severity of the sentence imposed on count 49 requires some moderation to what might otherwise be just and appropriate for the other offending. 214 To achieve the total effective sentence of 18 years' imprisonment we would order that the sentences on count 1 (1 year), count 4 (2 years), count 6 (2 years), count 7 (1 year), count 11 (1 year), count 12 (3 years), count 34 (2 years), count 36 (1 year) and count 49 (5 years) be cumulative on each other (with count 49 being the head sentence). All of the other sentences should be served concurrently -- 62 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 63 with count 49 and with each other. There should continue to be a parole eligibility order. And, as ordered by the sentencing judge, the sentence should continue to be backdated to commence from 22 September 2022. 215 Accordingly, we would order as follows: 1. The time for the appellant to commence an appeal under pt 3 of the Criminal Appeals Act 2004 (WA) from the sentences imposed on him by Black DCJ in the District Court of Western Australia on 20 November 2023 in IND 1896 of 2022 is extended to 7 June 2024. 2. The appellant has leave to appeal on grounds 1 and 2 contained within the appellant's case dated 20 September 2024. 3. The appeal is allowed. 4. The orders for concurrency and cumulacy made by Black DCJ on 20 November 2023 in IND 1896 of 2022 are set aside. In substitution thereof: (a) the sentences on: (i) count 1 (1 year' imprisonment); (ii) count 4 (2 years' imprisonment after a reduction for totality); (iii) count 6 (2 years' imprisonment after a reduction for totality); (iv) count 7 (1 year' imprisonment after a reduction for totality); (v) count 11 (1 year' imprisonment after a reduction for totality); (vi) count 12 (3 years' imprisonment after a reduction for totality); (vii) count 34 (2 years' imprisonment after a reduction for totality); (viii) count 36 (1 year' imprisonment); and (ix) count 49 (5 years' imprisonment); -- 63 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 64 are to be served cumulatively on each other (with the sentence on count 49 to be the head sentence); (b) the remaining sentences in relation to the counts on IND 1896 of 2022 are to be served concurrently with the sentence on count 49 and with each other. 5. For the avoidance of doubt, the new total effective sentence imposed on the appellant is 18 years' immediate imprisonment. 6. Nothing in these orders affects the following matters as ordered by Black DCJ on 20 November 2023 in IND 1896 of 2022: (a) the individual sentences imposed on the appellant; (b) the order that the appellant be eligible to be considered for parole; (c) the order that the appellant's sentence be backdated to be taken to have begun on 22 September 2022. -- 64 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 65 Annexure 'A' NOTE: In the following table a reference to 'CM' in the 'sentence column' designates that the sentence imposed on the particular count was to be served cumulatively (meaning that it contributes to the total effective sentence of 24 years and 6 months' imprisonment). Count Charge Date Nature of Offence Max Penalty Sentence Incident 1 - Avery (2 counts both on 16 March 2019) 1. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 16/03/19 Upskirting video of Avery - vaginal area covered by underwear (20 seconds duration) 10 years 1 year 2. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 16/03/19 Upskirting video of Avery - vaginal area covered by underwear (1:21 minutes duration) 10 years 1 year - CM Incident 2 - Mylah (3 counts all on 9 July 2022) 3. Indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code 09/07/22 Pulled open Mylah's vagina 10 years 2 years 4. Sexual penetration of a child under the age of 13 years contrary to s 320(2) of Code 09/07/22 Penetrated Mylah's vagina with finger 20 years 2 years - CM (reduced from 3 years for totality) 5. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 09/07/22 Recorded counts 2 and 3 (1:31 minutes duration) 10 years 2 years -- 65 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 66 Count Charge Date Nature of Offence Max Penalty Sentence Incident 3 - Mylah (27 counts all on 19 August 2022 between 10.08 pm and 10.31 pm) 6. Sexual penetration of a child under the age of 13 years contrary to s 320(2) of Code 19/08/22 Penetrated Mylah's vagina with finger 20 years 2 years - CM (reduced from 3 years for totality) 7. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Recorded count 6 (2:13 minutes duration) 10 years 1 year - CM (reduced from 2 years for totality) 8. Sexual penetration of a child under the age of 13 years contrary to s 320(2) of Code 19/08/22 Penetrated Mylah's vagina with finger 20 years 3 years 9. Sexual penetration of a child under the age of 13 years contrary to s 320(2) of Code 19/08/22 Penetrated Mylah's vagina with finger 20 years 3 years 10. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Recorded counts 8 and 9 (26 seconds duration) 10 years 2 years 11. Indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code 19/08/22 Procured Mylah to masturbate penis 10 years 1 year - CM (reduced from 2 years for totality) -- 66 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 67 Count Charge Date Nature of Offence Max Penalty Sentence 12. Sexual penetration of a child under the age of 13 years contrary to s 320(2) of Code 19/08/22 Penetrated Mylah's vagina with tip of penis 20 years 3 years - CM (reduced from 4 years for totality) 13. Sexual penetration of a child under the age of 13 years contrary to s 320(2) of Code 19/08/22 Penetrated Mylah's vagina with finger 20 years 3 years 14. Indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code 19/08/22 Masturbated in Mylah's presence 10 years 18 months 15. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Recorded counts 11 - 14 (4:01 minutes duration) 10 years 1 year - CM 16. Sexual penetration of a child under the age of 13 years contrary to s 320(2) of Code 19/08/22 Penetrated Mylah's vagina with tip of penis 20 years 3 years - CM 17. Indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code 19/08/22 Masturbated in Mylah's presence 10 years 18 months 18. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Recorded counts 16 and 17 (2:28 minutes duration) 10 years 3 years -- 67 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 68 Count Charge Date Nature of Offence Max Penalty Sentence 19. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year - CM 20. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 21. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 22. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 23. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 24. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year -- 68 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 69 Count Charge Date Nature of Offence Max Penalty Sentence 25. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 26. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 27. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 28. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 29. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year 30. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 19/08/22 Photographed Mylah with legs spread apart depicting vagina and/or anus 10 years 1 year -- 69 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 70 Count Charge Date Nature of Offence Max Penalty Sentence 31. Indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code 19/08/22 Touched Mylah's vagina with finger (depicted in one of the images in counts 19 - 30) 10 years 18 months - CM 32. Indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code 19/08/22 Touched Mylah's vagina with finger (depicted in one of the images in counts 19 - 30) 10 years 18 months Incident 4 - Mylah (1 count on 21 September 2022) 33. Indecently recording a child under the age of 13 years contrary to s 320(6) of the Code 21/09/22 Photographed Mylah's underwear pushed aside exposing vagina 10 years 1 year Distribution of child exploitation material offences (15 counts on 5 days between 18 and 22 September 2022) 34. Distribution of child exploitation material contrary to s 219(2) of the Code 21/09/22 Distributed 6 images (including image in count 33) by Wikr 10 years 2 years - CM (reduced from 3 years for totality) 35. Distribution of child exploitation material contrary to s 219(2) of the Code 18/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 36. Distribution of child exploitation material contrary to s 219(2) of the Code 19/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year -- 70 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 71 Count Charge Date Nature of Offence Max Penalty Sentence 37. Distribution of child exploitation material contrary to s 219(2) of the Code 19/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 38. Distribution of child exploitation material contrary to s 219(2) of the Code 19/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 39. Distribution of child exploitation material contrary to s 219(2) of the Code 19/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 40. Distribution of child exploitation material contrary to s 219(2) of the Code 20/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 41. Distribution of child exploitation material contrary to s 219(2) of the Code 20/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 42. Distribution of child exploitation material contrary to s 219(2) of the Code 20/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 43. Distribution of child exploitation material contrary to s 219(2) of the Code 21/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr - sent image depicting erect penis in mouth of naked infant 10 years 1 year -- 71 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 72 Count Charge Date Nature of Offence Max Penalty Sentence 44. Distribution of child exploitation material contrary to s 219(2) of the Code 21/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 45. Distribution of child exploitation material contrary to s 219(2) of the Code 21/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 46. Distribution of child exploitation material contrary to s 219(2) of the Code 21/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year 47. Distribution of child exploitation material contrary to s 219(2) of the Code 21/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr - sent category 1 child exploitation material image 10 years 1 year - CM 48. Distribution of child exploitation material contrary to s 219(2) of the Code 22/09/22 Engaged in overtly sexual conversations involving child exploitation material by Wikr 10 years 1 year Possession of child exploitation materials (3 counts all on 22 September 2022) 49. Possession of child exploitation material contrary to s 220 of the Code 22/09/22 Child exploitation material on iPhone: • 2,132 images / 1,183 videos (category 1) • 190 images / 54 videos (category 2) 7 years 5 years - Head -- 72 of 73 -- [2026] WASCA 81 JUDGMENT OF THE COURT Page 73 Count Charge Date Nature of Offence Max Penalty Sentence 50. Possession of child exploitation material contrary to s 220 of the Code 22/09/22 Child exploitation material on computer hard drive: • 17,190 images / 166 videos (category 1) • 3,203 images / 24 videos (category 2) 7 years 3 years 51. Possession of child exploitation material contrary to s 220 of the Code 22/09/22 Child exploitation material on external hard drive: • 739 images / 1,073 videos (category 1) • 14 images / 58 videos (category 2) 7 years 2 years Total Effective Sentence 24 year 6 months I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CI Associate to the Hon Justice Vaughan 12 JUNE 2026 -- 73 of 73 --