RATCLIFFE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 75

[2026] WASCA 75 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RATCLIFFE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 75 CORAM : ARCHER JA SWEENEY JA SEAWARD JA HEARD : 24 MARCH 2026 DELIVERED : 29 MAY 2026 FILE NO/S : CACR 86 of 2025 BETWEEN : MARCUS EWEN RATCLIFFE Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : EGAN DCJ File Number : IND 2048 of 2024 Catchwords: Criminal law - Appeal against sentence - Alleged express errors - Finding that the offending 'corrupted' the victim - Double punishment - Implied error - Totality principle -- 1 of 30 -- [2026] WASCA 75 Page 2 Legislation: Nil Result: Leave to appeal granted on grounds 1 and 2 Leave to appeal refused on ground 3 Appeal allowed Appellant resentenced Category: B Representation: Counsel: Appellant : P D Yovich SC & F M Hugo Respondent : R F Owen SC & N R Sinton Solicitors: Appellant : Tehan Legal Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Buckley v The State of Western Australia [2015] WASCA 242 CGF v The State of Western Australia [2023] WASCA 187 Dempsey v The Queen (Unreported, WASC, Library No 960059C, 9 February 1996) Dixon v The King [2026] WASCA 48 Gavenlock v The State of Western Australia [2014] WASCA 36 Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 Hodges v The State of Western Australia [2025] WASCA 136 JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209 Kabambi v The State of Western Australia [2019] WASCA 44 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 -- 2 of 30 -- [2026] WASCA 75 Page 3 OTR v The State of Western Australia [No 2] [2022] WASCA 123 Pennetta v The State of Western Australia [2013] WASCA 234 R v Avery [2002] WASCA 136 Tapper v The State of Western Australia [2016] WASCA 140 The State of Western Australia v Dorsett [2025] WASCA 13 The State of Western Australia v Fyffe [2018] WASCA 173 The State of Western Australia v MGA [2024] WASCA 108 The State of Western Australia v MGT [2024] WASCA 138 The State of Western Australia v Noland (a pseudonym) [2026] WASCA 44 The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 The State of Western Australia v Todd [2025] WASCA 167 The State of Western Australia v WRH [2025] WASCA 29 UGN v The State of Western Australia [2021] WASCA 10 -- 3 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 4 JUDGMENT OF THE COURT: Overview 1 The appellant pleaded guilty to nine sexual offences against a 14-year-old girl. The offences included five offences of sexually penetrating the child, and one offence of indecently recording the child. The offending occurred on a single occasion, when the appellant was 22 years old. The learned sentencing judge imposed a total effective sentence of 3 years 8 months' imprisonment. 2 The appellant appeals against that sentence on three grounds. 3 Ground 1 alleges that the learned sentencing judge erred by finding, as an aggravating factor, that the offending 'corrupted' the victim. 4 By ground 2, the appellant alleges that the total effective sentence did not bear a proper relationship to the overall criminality of his offending, and was too high. 5 Ground 3 alleges that the learned sentencing judge erred by ordering the sentence on count 9 (the indecent recording offence) be served wholly cumulatively, in circumstances where his Honour found that the recording of the sexual conduct offences was an aggravating factor in assessing the seriousness of the sexual conduct offences, thereby infringing the principle against double punishment. 6 For the reasons that follow, we would allow the appeal. The sentences 7 The nine offences, together with their maximum penalties and the penalties imposed, were as follows: Count Offence Maximum Penalty Penalty 1 Indecent dealing with a child of or over the age of 13 years and under the age of 16 years, by kissing her on the mouth, contrary to s 321(4) of the Criminal Code (WA). 7 years' imprisonment 3 months' imprisonment (concurrent) -- 4 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 5 Count Offence Maximum Penalty Penalty 2 Indecent dealing with a child of or over the age of 13 years and under the age of 16 years, by kissing her breasts, contrary to s 321(4) of the Criminal Code. 7 years' imprisonment 4 months' imprisonment (cumulative) 3 Indecent dealing with a child of or over the age of 13 years and under the age of 16 years, by kissing her on her thigh, contrary to s 321(4) of the Criminal Code. 7 years' imprisonment 3 months' imprisonment (concurrent) 4 Sexual penetration of a child of or over the age of 13 years and under the age of 16 years, by engaging in cunnilingus, contrary to s 321(2) of the Criminal Code. 14 years' imprisonment 2 years 2 months' imprisonment (concurrent) 5 Sexual penetration of a child of or over the age of 13 years and under the age of 16 years, by introducing his penis into her mouth, contrary to s 321(2) of the Criminal Code. 14 years' imprisonment 2 years 2 months' imprisonment (concurrent) 6 Sexual penetration of a child of or over the age of 13 years and under the age of 16 years, by engaging in cunnilingus while introducing his penis into her mouth, contrary to s 321(2) of the Criminal Code. 14 years' imprisonment 2 years 2 months' imprisonment (concurrent) -- 5 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 6 Count Offence Maximum Penalty Penalty 7 Sexual penetration of a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, contrary to s 321(2) of the Criminal Code. 14 years' imprisonment 2 years 2 months' imprisonment (head sentence) 8 Sexual penetration of a child of or over the age of 13 years and under the age of 16 years, by penetrating her anus with his finger, contrary to s 321(2) of the Criminal Code. 14 years' imprisonment 2 years 2 months' imprisonment (concurrent) 9 Indecent recording of a child of or over the age of 13 years and under the age of 16 years, by taking indecent videos of her, contrary to s 321(6) of the Criminal Code. 7 years' imprisonment 1 year 2 months' imprisonment (cumulative) Total effective sentence 3 years 8 months' imprisonment 8 The learned sentencing judge made the sentence imposed in relation to count 7 the head sentence, and ordered that the sentences imposed in relation to counts 2 and 9 be served cumulatively on the head sentence and on each other. Each other sentence was ordered to be served concurrently. The total effective sentence was therefore 3 years 8 months' imprisonment. A lifetime violence restraining order was made protecting the child from the appellant. 9 The appellant was made eligible for parole. -- 6 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 7 The facts 10 The facts of the offending are as follows. 11 In April 2024, the appellant and a 14-year-old girl Freya (not her real name) met online through a social networking application called 'Purp'. The appellant was 22 years old at the time. 12 The appellant had set the application's filters to connect him with Purp users between the ages of 13 and 14, or 13 and 17.1 Freya had accurately represented on Purp that she was 14 years old. The appellant had falsely represented that he was 16 or 17 years old.2 13 Sometime after exchanging messages on Purp, the appellant connected with Freya on 'Snapchat'. They shared intimate images and videos of themselves with each other, discussed meeting, and agreed to meet. 14 During those Snapchat communications, the appellant asked Freya what school she went to. 15 On Saturday, 11 May 2024, the appellant and Freya arranged, through Snapchat, to meet up. The appellant said that he would pick Freya up. Freya told the appellant to wait in the carpark of the park opposite her house. At around 3.50 pm, Freya told her father that she was going to a friend's house and left to meet the appellant in the carpark. Freya then got into the appellant's car and the appellant drove them to his home address. The appellant told Freya that no one else would be at his house. 16 Once they arrived, the appellant took Freya into his bedroom and lay on his back on the bed. Freya took off her shoes, sat on the appellant's bed, and turned on the TV. The appellant took Freya's hand, and pulled her on top of him. 17 The appellant then kissed Freya on the lips (count 1). He removed Freya's shirt and re-positioned her so that she was lying on her back. He knelt over Freya and kissed her breasts (count 2). The appellant then removed her shorts and underwear, and began to kiss her thigh area (count 3). He then performed cunnilingus on her (count 4). Freya 1 There was initially a dispute between the parties as to whether the appellant had set the filter to be connected with 13 to 14-year-old users, or to 13 to 17-year-old users. The learned sentencing judge did not consider this distinction material: WAB 111. 2 There was initially a dispute between the parties as to whether the appellant had represented himself as being aged 16 or 17, but the sentencing judge did not consider this distinction material: WAB 111. -- 7 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 8 sat up and the appellant lay down on the bed and took his shorts and underwear off. Freya then performed fellatio on the appellant (count 5). The appellant took out his mobile phone and told Freya, 'This is just for us', and began recording her performing fellatio. He also performed cunnilingus on Freya while she was engaged in fellatio (count 6). 18 The appellant then put a condom on his penis and had penile-vaginal sexual intercourse with Freya (count 7). At some point during the offending, he digitally penetrated Freya's anus (count 8). 19 Throughout the offending, the appellant continued to make recordings. In total, he made 18 indecent recordings (count 9). 20 In the plea in mitigation before the learned sentencing judge, the appellant's then senior counsel (not counsel in the appeal) asserted that the appellant had asked Freya on several occasions if she wanted to continue having sex and that Freya had said yes each time.3 This assertion was not challenged by the State. 21 When the sexual activity ended, the two got dressed, and the appellant drove Freya home, arriving back at her house at about 6 pm. 22 The appellant later sent the indecent recordings he had made to Freya using Snapchat. In the plea in mitigation, the appellant's then senior counsel asserted that the appellant sent the recordings to Freya because she had asked him to.4 This assertion was not challenged by the State. 23 After the appellant sent the recordings to Freya, they had no further contact with each other. 24 Around June 2024, Freya told two of her school friends what had happened. As a result of this, a teacher at Freya's school became aware of the offending and a mandatory report was made to the police. 25 During the police investigation, the police found a Snapchat folder on the appellant's phone called 'my eyes only'. In addition to the recordings the subject of count 9, the folder contained nude or sexualised pictures of numerous girls who appeared to be under the age of 16 years, and screenshots of the social media profile pictures of girls aged 13 and 14 years. 3 WAB 71. 4 WAB 71. -- 8 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 9 26 The appellant participated in a video record of interview with police, but made no admissions. 27 The appellant pleaded guilty to the charges, at a time found by the learned sentencing judge to be the earliest reasonable opportunity.5 However, a trial of the issues was held to assess the appellant's assertion that he had believed that Freya was 16. The appellant gave evidence as to his belief. The appellant's then counsel (not counsel in the appeal) also submitted, albeit faintly, that his belief was reasonable.6 28 The learned sentencing judge was not satisfied that the appellant had believed that Freya was 16 years old.7 His Honour also found that any such belief would not have been reasonable.8 However, his Honour did not find that the appellant knew Freya was 14 years old. Instead, his Honour found, somewhat generously, that the appellant had been 'wilfully blind' as to how old Freya might have been.9 Was the total effective sentence disproportionate to the overall criminality? (ground 2) 29 It is convenient to begin with ground 2. 30 Ground 2 is that the total sentence imposed did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the appellant personally. This ground alleges, in effect, that the total effective sentence infringed the first limb of the totality principle, and was disproportionately high. 31 The general sentencing principles applicable to such a ground of appeal are well established,10 and do not need to be repeated. 32 The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender, personal deterrence of the offender, and general deterrence. These 5 WAB 125. 6 WAB 101 - 103. 7 WAB 119 - 120 (although his Honour said '14' at WAB 119, this was plainly a slip of the tongue). 8 WAB 120. 9 WAB 120. 10 Kabambi v The State of Western Australia [2019] WASCA 44 [21]. -- 9 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 10 considerations arise from the need to protect vulnerable children. Matters personal to an offender will ordinarily carry less weight.11 Maximum penalties 33 The maximum penalties are set out in the above table. Each of the sexual penetration offences carry a maximum penalty of 14 years' imprisonment. The other offences carry a maximum penalty of 7 years' imprisonment. Seriousness of the offending 34 The learned sentencing judge noted the absence of aggravating factors such as the appellant holding a position of trust and authority over Freya, or the presence of any perversion, coercion, forceful behaviour or promise of reward. His Honour also noted that the offending was isolated and confined to a single occasion, and that the appellant took steps to minimise the risk of sexually transmissible infection or pregnancy by using a condom. 35 The sentencing judge found the following aggravating factors.12 36 First, the appellant engaged in the offending even though it was clear from Freya's Purp profile that she was only 14 years old. The sentencing judge rejected the appellant's claim to have believed that Freya was 16 years old, saying that it seemed that the appellant was 'wilfully blind' to her age. By this, we understand the sentencing judge to have meant that the appellant deliberately closed his eyes to Freya's age, for fear that he may learn the truth.13 His Honour said that the appellant's blindness was 'driven by [his] desire to engage in a sexual encounter with a girl younger than [him].14 37 Second, there was a significant age gap of seven to eight years between the appellant and Freya, and this was not a case where the appellant was barely an adult. 38 Third, Freya was vulnerable because of her age, and her vulnerability was compounded by the fact that the appellant had driven her to his house and there was no one else home at the time of his offending. 11 OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55]. 12 WAB 124. 13 See Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 482 - 483 (Gibbs CJ), 495 (Mason J). 14 WAB 120. -- 10 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 11 39 Fourth, 'by the nature and extent of [his] offending', the appellant 'corrupted' his 14-year-old victim. 40 Fifth, in committing counts 4 to 8, the appellant engaged in four different types of penetration of Freya. 41 Sixth, 'it is aggravating that [the appellant] recorded [some of the sexual offending] … and also that there were 18 recordings in total and not just one recording'. 42 His Honour also noted that there was an element of planning in the offending, although did not include this in his list of aggravating factors.15 Mitigating factors 43 The learned sentencing judge found the following mitigating factors.16 44 First, his Honour found that the pleas of guilty were entered at the earliest reasonable opportunity, and allowed a 25% discount for the appellant's pleas of guilty under s 9AA of the Sentencing Act 1995 (WA). 45 Second, the appellant was young. 46 Third, the appellant had no criminal history and was of prior good character. 47 Fourth, the appellant was remorseful. 48 Fifth, the appellant had engaged in some rehabilitation in the form of eight therapy sessions with a psychologist. 49 Sixth, and while noting the limited way in which it is meaningful to refer to a child being a 'willing participant' in sexual activity, Freya was a willing participant.17 50 The sentencing judge also found that the appellant was a low risk of re-offending. This was perhaps another generous finding, given the 'my eyes only' folder found on the appellant's phone. However, the State did not challenge this finding. 15 WAB 121. 16 WAB 124 - 128. 17 WAB 122, 126. And see The State of Western Australia v Todd [2025] WASCA 167 [113] - [126]. -- 11 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 12 Personal circumstances 51 The appellant was 22 years old at the time of offending (six days short of his 23rd birthday) and 24 years old at the time of sentencing. 52 The appellant grew up in New Zealand, in a loving and supportive family environment. He completed schooling and further studies in aviation. Two years prior to the sentencing, the appellant had moved to Western Australia to work for a skydiving business and eventually worked as a pilot. 53 The appellant told the author of the psychological report that, prior to the offending, he had been in a two-year relationship.18 In his evidence in the sentencing proceedings, the appellant said that he had had 'previous girlfriends'.19 At the hearing of the appeal, senior counsel for the appellant pointed out that there was no evidence as to whether these were sexual relationships. However, senior counsel accepted that no submission had been made to the learned sentencing judge that the appellant was sexually immature for his age, and his Honour did not make such a finding. 54 At the time of sentencing, the appellant was in a relationship with a supportive partner. Many character references were provided to the court, which spoke of the appellant's genuine remorse and acceptance of responsibility, and said that the offending was out of character. The writers also spoke of the appellant's good work ethic and other positive traits such as integrity and reliability.20 Comparable cases 55 The appellant's contention in relation to ground 2 is, in essence, that error can be inferred by comparing his total effective sentence to the total effective sentences imposed in other cases. Senior counsel for the appellant acknowledged the difficulties inherent in comparing sentencing outcomes for this purpose. 56 A sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. In any event, when an infringement of the first limb of the totality principle is alleged, comparing the total effective sentence under 18 Psychological report of Lisa Dominguez (16 March 2025) [9]. 19 WAB 92. 20 WAB 113 - 114 and see also WAB 11 [25(f)] (appellant's submissions). -- 12 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 13 challenge to cases said to be comparable is of limited utility.21 This is because:22 the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences [relate] only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. 57 The difficulty in comparing total effective sentences is particularly acute in relation to sexual offending against children, in which there is a wide variety of combinations of offending conduct, offenders and victims.23 58 Despite the difficulties, it is nevertheless important to ensure that there is broad consistency in sentences. The consistency sought is consistency in the application of relevant legal principles rather than some numerical or mathematical equivalence.24 59 The appellant cites numerous cases in support of this ground of appeal. In several of those cases, the offender sought leave to appeal on the ground that the total effective sentence infringed the first limb of the totality principle, but leave to appeal was refused. That is, this court found that the total effective sentence under appeal was not even arguably excessive. In those circumstances, the sentence imposed does not provide any marker as to the upper limits of the proper exercise of the sentencing discretion.25 In our view, cases in which leave to appeal was refused are of no utility in considering whether a sentence is manifestly excessive. We have disregarded those cases. 60 The remaining cases were The State of Western Australia v Dorsett,26 The State of Western Australia v MGT,27 The State of Western Australia v MGA,28 Gavenlock v The State of Western Australia,29 Buckley v The State of Western Australia,30 Tapper v The 21 UGN v The State of Western Australia [2021] WASCA 10 [54]. 22 Pennetta v The State of Western Australia [2013] WASCA 234 [39]. 23 JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209 [168] (Mitchell JA). 24 Hodges v The State of Western Australia [2025] WASCA 136 [74] point 3. 25 Hodges [74] point 7. 26 The State of Western Australia v Dorsett [2025] WASCA 13. 27 The State of Western Australia v MGT [2024] WASCA 136. 28 The State of Western Australia v MGA [2024] WASCA 108. 29 Gavenlock v The State of Western Australia [2014] WASCA 36. 30 Buckley v The State of Western Australia [2015] WASCA 242. -- 13 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 14 State of Western Australia,31 The State of Western Australia v Fyffe,32 and The State of Western Australia v WRH.33 61 The appellant contends that the first three of these cases involved significantly more serious offending than the appellant's offending, and that the difference between the sentences imposed in those cases and that imposed on the appellant is significantly less than the difference between the seriousness of the offending. 62 We have already noted that it is difficult to compare total effective sentences, and that the difficulty is particularly acute in child sexual abuse cases. Attempting to compare the proportionate differences in seriousness and sentences between the appellant's offending and significantly more serious offending would add yet another layer of complexity to the task. In our view, such a comparison could only be of limited value. While we have considered the three cases said by the appellant to be significantly more serious, we have not found them to be useful. 63 For different reasons, three of the other cases relied upon by the appellant are also not useful comparators in considering the total effective sentence imposed on the appellant. There was only a single offence in Buckley and Fyffe. Further, while WRH involved a single offence of sexual penetration (and an indecent dealing by kissing), the child victim became pregnant. 64 However, two of the cases relied upon by the appellant are useful comparators. 65 In Tapper, the offender pleaded guilty on the morning of his trial to three counts of sexual penetration of a child. However, a trial of the issues was held as to his knowledge of the child's age. 66 Mr Tapper was 43 years old at the time of the offences, and the child was 15 years old. Mr Tapper was a serving police officer who became acquainted with the victim on an online dating site. Although the victim told Mr Tapper that she was 19 years old, Mr Tapper collected the victim from her school on two occasions, and, on the first occasion, the victim was wearing her school uniform. On each occasion, Mr Tapper took the victim to his home, where he penetrated her vagina with his penis (in two separate rooms on the first occasion). 31 Tapper v The State of Western Australia [2016] WASCA 140. 32 The State of Western Australia v Fyffe [2018] WASCA 173. 33 The State of Western Australia v WRH [2025] WASCA 29. -- 14 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 15 Following a trial of the issues, the learned sentencing judge found that Mr Tapper's state of mind was, at best, one of wilful blindness and that he took the risk that the victim was under 16 years old. 67 Mr Tapper was sentenced on the basis that he initiated the sexual activity, and that he had no affection for the victim and wanted only to have sex with her secretly and then send her on her way. 68 The sentencing judge was of the view that Mr Tapper had 'no more than a relatively modest amount of contrition and remorse'. 69 Mr Tapper did not have a prior criminal record, had cooperated to a degree with the investigating police, and had no significant risk of re-offending. The sentencing judge also recognised that imprisonment would likely be more onerous on Mr Tapper because he had been a police officer. 70 Mr Tapper was given a 10% discount for his pleas of guilty under s 9AA of the Sentencing Act. 71 Individual sentences of 2 years' imprisonment were imposed on each count. All the sentences were ordered to be served concurrently, resulting in a total effective sentence of 2 years' imprisonment. An appeal on the basis that the sentences were manifestly excessive as to type and length was dismissed. 72 The State contends that, apart from the fact that Mr Tapper's offending took place over two separate occasions, the appellant's offending was worse than Mr Tapper's in all other ways - the appellant's victim was younger, there were more offences and more acts of penetration, and the offending was filmed. The State submits that it is appropriate that the appellant received a greater sentence than that imposed on Mr Tapper. 73 We accept that Mr Tapper's victim was a year older than Freya, and had said she was 19 years old. We further accept that Mr Tapper's offending involved 'only' one type of penetration. However, in several significant respects, Mr Tapper's offending was worse, and he had less to mitigate it - the age discrepancy in Tapper was vastly greater than the appellant's case, the offending occurred on two separate occasions, and Mr Tapper received only a 10% allowance for his plea of guilty. That said, we consider that the sentence imposed on Mr Tapper was, on its face, lenient. We would infer that the learned sentencing judge gave -- 15 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 16 significant weight to the fact that imprisonment would likely be more onerous on Mr Tapper because he had been a police officer. 74 The offender in Gavenlock was sentenced after trial for sexual offending on three occasions, involving (in total) three counts of indecent dealing and two counts of sexual penetration of a child. The victim was either 13 or 14, and Mr Gavenlock was either 21 or 22. Mr Gavenlock received a total effective sentence of 4 years 6 months' imprisonment. 75 Mr Gavenlock sought to appeal against the total effective sentence on the basis that it was manifestly excessive. His appeal was allowed, and his total effective sentence was reduced to 3 years' imprisonment. 76 The State submits that this case does not support the appellant's contention on ground 2. It notes that Gavenlock involved 'only' two counts of penetration, one digital of short duration, and one penile/vaginal. The State says that Mr Gavenlock desisted from each act of penetration when told to by the victim and that, after the offences were committed, a 'boyfriend/girlfriend' like relationship developed. 77 Again, we do not accept the State's submission. 78 Mr Gavenlock and the victim's father were friends, and Mr Gavenlock was a regular visitor at the victim's father's house. After her parents separated, the victim and her sister stayed with their father during school holidays. Over time, Mr Gavenlock came to know the victim and her sister. He developed a sexual interest in the victim. Each of the offences occurred in the victim's father's house. 79 Mr Gavenlock's offending occurred without consent: in particular, the victim told Mr Gavenlock during the first sexual penetration offence that she did not want to do it and that he was hurting her. Mr Gavenlock was at all times aware of the victim's young age. 80 Counts 1, 2 and 3 occurred on the one occasion while Mr Gavenlock and the victim were watching television. Mr Gavenlock put his hand down the victim's track pants and rubbed her vagina. He then took the victim's hand and placed it on his penis on the outside of his pants. She removed her hand, but Mr Gavenlock grabbed it again and placed it back on his penis, over the top of his underpants, and moved her hand up and down. Mr Gavenlock's actions were neither initiated by the victim nor welcomed by her. -- 16 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 17 81 In relation to count 6, the victim was asleep in the lounge room when Mr Gavenlock woke her and asked her if she wanted to have sex with him. He lay on top of her, pulled her shorts and underwear to the side and penetrated her vagina with his penis. In her testimony at trial, the victim said she told Mr Gavenlock that she did not want to do it and that he was hurting her. Mr Gavenlock continued for a short time, but then withdrew his penis and asked the victim to masturbate him, which she refused to do. Finally, Mr Gavenlock masturbated himself to ejaculation. 82 Count 7 occurred on a different night. The victim woke in her bedroom to find Mr Gavenlock in her bed. He penetrated her vagina with his fingers, moving them around for 'a couple of seconds' and suggested that they again have sexual intercourse. She rolled away from Mr Gavenlock and said that she did not want to have sex with him. Mr Gavenlock then stormed out of the room. 83 Mr Gavenlock was 21 or 22 years of age at the time of the offending, had favourable antecedents, good prospects for the future, and was a low risk of re-offending. However, he did not plead guilty and was not found to have been remorseful. 84 Another case which is a useful comparator is The State of Western Australia v Todd.34 It was decided after the appellant filed his case in the appeal. 85 Mr Todd went to a 17th birthday party for his friend Millie (not her real name). Mr Todd was 20 years old at the time. Mr Todd told Millie that he intended to have sex with one of her friends at the party, and that he did not care which one. 86 Within a few hours of arriving at the party, Mr Todd had sexually penetrated a 14-year-old girl three times, and indecently dealt with her. Mr Todd sexually penetrated the victim's mouth with his penis, he sexually penetrated her vagina with his fingers, and he sexually penetrated her vagina with his penis. 87 It was not in dispute that, when Mr Todd first asked the victim to engage in fellatio, the victim said 'no'. It was also not in dispute that the victim had been drinking at the party and was intoxicated to some degree. Mr Todd also agreed that, after roughly five minutes of him 34 The State of Western Australia v Todd [2025] WASCA 167. -- 17 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 18 having sex with the victim, she shoved him, saying 'No, no. Stop' and ran off. 88 Mr Todd pleaded guilty to one count of indecently dealing with a child of or over the age of 13 years and under 16 years (touching her breasts), and three counts of sexual penetration of the same child. 89 Following a trial of the issues to determine the factual basis upon which Mr Todd would be sentenced, the learned sentencing judge concluded that, while her Honour could not be satisfied beyond reasonable doubt that the victim told Mr Todd that she was under 16 years of age, her Honour was not satisfied that Mr Todd positively believed that the victim was 16 years old. The sentencing judge rejected Mr Todd's evidence that he had turned his mind to the victim's age. 90 The learned sentencing judge was also not satisfied on the balance of probabilities that the victim consented to being sexually penetrated by Mr Todd, although her Honour could not be satisfied beyond reasonable doubt that the victim did not consent. As was said by this court in Todd, her Honour appears to have accepted that there was a reasonable inference available to the effect that the victim 'reluctantly consented' before the first act of sexual penetration.35 91 The sentencing judge sentenced Mr Todd to a total effective sentence of 4 years 10 months' imprisonment, which her Honour wholly suspended for a period of 2 years. The State appealed against the suspended sentence. This court upheld the appeal and resentenced Mr Todd to a total effective sentence of 3 years 6 months' immediate imprisonment. 92 The age disparity between Mr Todd and the victim was six years, which is less than the eight-year age disparity between the appellant and Freya. Also, Mr Todd had reached adulthood more recently than the appellant (two years before the offending, compared to four). 93 On the other hand, there were aspects of Mr Todd's offending that made it significantly worse than the appellant's. 94 First, the learned sentencing judge could not be satisfied that Mr Todd's victim consented to any of the acts of sexual penetration, let 35 Todd [10]. -- 18 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 19 alone that she enthusiastically consented. This court said that that, in and of itself, was a significant matter. 95 Second, any consent by Mr Todd's victim to (at least) the first act of sexual penetration was, at best, 'reluctant'. The circumstances in which Mr Todd persisted with his request for sexual favours involved a significant 'element of abuse'. 96 As with the appellant, there were significant mitigating factors in Mr Todd's case. Mr Todd was still a young man, and he was of prior good character. His familial and community supports boded well for his future rehabilitation. Mr Todd also pleaded guilty at the first reasonable opportunity. However, as the State case was very strong and the utilitarian benefits of that plea were lessened by the need for a trial of the issues (including the need for the victim to give evidence), the results of which did not go in his favour, Mr Todd was given a 15% discount for his pleas of guilty by this court when resentencing him. 97 When this court dismisses an appeal against sentence, the sentence imposed at first instance does not fix the upper or lower limit of the proper exercise of the sentencing discretion. Nor does a sentence imposed by this court in resentencing an offender after a successful appeal against sentence fix the limits.36 Nevertheless, in our view, the total effective sentences imposed in Tapper, Gavenlock and Todd support the appellant's contention that his total effective sentence did not bear a proper relationship to his overall criminality and was disproportionately high. The total effective sentence was disproportionate to the overall criminality 98 Sexual offending against children is inherently serious. General deterrence is a primary consideration. 99 Further, the appellant's offending was serious. It involved multiple acts of sexual penetration, of four different types, on the one and only occasion when the appellant and Freya met in person. The appellant initiated the sexual interaction swiftly once they were in his bedroom together. The offending did not occur in the context of a boyfriend/girlfriend relationship between two people reasonably close in age. While still a young man of 22, the appellant was much older 36 Hodges [74] points 6 - 8. -- 19 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 20 than Freya; he was nearly five years past adulthood, and she was only 14. He lied about his age on Purp. The appellant also recorded some of the offending. 100 On the other hand, the offending was not aggravated by a lack of consent. While consent is not an element of sexual offending against children contrary to s 321 of the Criminal Code, a lack of consent will be aggravating. 101 To the extent that it is meaningful to say that a 14-year-old child willingly participated in sexual activity, Freya did willingly participate, unlike Mr Todd's victim. As recently reiterated in The State of Western Australia v Noland (a pseudonym),37 any apparently willing participation on the part of a child under the age of 16 needs to be seen within the obvious context of the child's immature lack of full appreciation of the nature and consequences of such sexual interaction with an adult. That said, in some cases, such as where there is a relatively small age difference between a young adult offender and the child, the apparently willing participation on the part of the child-victim may be relevant to an assessment of the 'element of abuse' for the purposes of sentencing. While the age difference between the appellant and Freya was significant, it was relatively small compared to many cases, including Tapper. This lessened the element of abuse. 102 Further, while vulnerable due to her age and the location of the offending, Freya was not made additionally vulnerable by intoxication, unlike Mr Todd's victim. And while the offending all occurred during a single episode encompassing multiple acts of sexual penetration, it was at least confined to that one occasion. 103 There were many mitigating factors. The appellant pleaded guilty at the earliest reasonable opportunity. He was not yet 23 years old at the time of the offending, and was only 24 when sentenced. The appellant had no criminal history and was of prior good character. He was remorseful and was a low risk of re-offending. 104 Further, as explained above, the cases that we consider are comparable support a conclusion that the total effective sentence imposed on the appellant was disproportionate to his overall criminality. 37 The State of Western Australia v Noland (a pseudonym) [2026] WASCA 44 [71]. See also Todd [111] - [116], [126]. -- 20 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 21 105 For these reasons, while there was no challenge to any of the individual terms imposed, we are satisfied that the total effective sentence imposed on the appellant did not bear a proper relationship to the overall criminality of the offending, having regard to all relevant circumstances, including the matters in mitigation and sentences imposed in comparable cases. We would grant leave to appeal on ground 2 and allow the appeal. The appellant must be resentenced. 106 This conclusion makes it unnecessary to consider grounds 1 and 3. However, given the State's submissions on ground 1, we will explain why we would also uphold ground 1. Was 'corruption' an aggravating feature? (ground 1) 107 One of the aggravating factors found by the learned sentencing judge was that, 'by the nature and extent of [the appellant's] offending, [he] corrupted [his] 14-year-old victim'. 108 By ground 1, the appellant alleges that this was an error. 109 The appellant submits that there are two possible interpretations of what his Honour meant: 1. First, that the offending had a 'corrupting' effect on the victim in a way that made this offending more serious than offending that did not have such an effect (either because Freya lacked prior sexual experience or because it impacted on her future willingness to engage in unlawful sexual activity); 2. Second, that the fact that the victim engaged in the sexual acts constituting the offences was the 'corruption'. 110 The appellant submits that, if the first possible interpretation is what the learned sentencing judge meant, there was an absence of evidence upon which his Honour could make that finding. The appellant submits that if, however, the second possible interpretation is what his Honour meant, then it was an error of law to classify an intrinsic feature of the offending as an aggravating factor. 111 The State, with respect, misunderstands and mischaracterises the appellant's submissions as to the first possible interpretation.38 38 See WAB 33 - 36 [21], [28] - [30], [35]. -- 21 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 22 112 As to the first possible interpretation, the appellant identifies cases in which observations have been made suggesting that the prior sexual experience of a child, or the impact the offending may have on a child's future willingness to engage in unlawful sexual activity, may be relevant to the evaluation of the seriousness of the offending.39 However, the appellant is not submitting that such matters should be relevant. Nor, contrary to the State's submission, is the appellant contending that virginity is a pre-condition to being corrupted.40 Rather, the appellant's contention is that, if the learned sentencing judge was treating those matters as relevant, there was no factual basis upon which his Honour could make such findings. 113 As to the second possible interpretation advanced by the appellant, the State accepts that, if this is what the learned sentencing judge meant, it would have been an error.41 However, the State submits this is not what the sentencing judge meant by the impugned phrase. It was not entirely clear from the State's written submissions what it contended the sentencing judge did mean.42 In oral submissions, the State submitted that, in using the impugned phrase, the sentencing judge was referring to the detrimental impact of the offending on Freya, being the trauma, distress, and humiliation she undoubtedly suffered.43 The State referred to the sequence of his Honour's sentencing remarks in support of this proposition. 114 We do not accept the State's submission. 115 The sequence of his Honour's sentencing remarks do not support the State's contention. Indeed, the sequence demonstrates that his Honour was not referring to the trauma, distress and humiliation suffered by Freya when his Honour used the impugned phrase. 116 The learned sentencing judge began his discussion of the impact on Freya with the phrase 'I turn then to address the impact or likely impact of [your] offending on your victim'.44 39 Dempsey v The Queen (Unreported, WASC, Library No 960059C, 9 February 1996), 7; R v Avery [2002] WASCA 136 [18]; The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 [58]. In Tapper, this court referred to the statement of the sentencing judge that the offending had not corrupted the victim because she had prior sexual experience, but this court did not appear to endorse that statement - see [35] and [84]. 40 WAB 33 [21]. 41 WAB 35 - 36 [33]. 42 See WAB 35 - 36 [33] - [38]. 43 Appeal ts 24 - 33. 44 WAB 123. -- 22 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 23 117 His Honour noted that Freya did not provide a victim impact statement, but said that it was well recognised that this type of offending has detrimental impacts on a victim. His Honour further noted that, at the very least, Freya had had to become involved in the criminal justice system by giving a statement to police and being interviewed. His Honour said that, from his examination of her child witness interview, Freya was extremely distraught. His Honour inferred that the offending would have had a detrimental impact on her wellbeing. 118 His Honour further noted that Freya had suffered the ignominy of knowing that numerous adults and strangers had watched the video recordings of the appellant engaging in sexual conduct with her. His Honour said that there was no evidence that the appellant had saved copies of the recordings on anything other than his phone, which was in the possession of police, but that that may not provide the victim with any comfort. His Honour said that, in any event, copies had been made for the purposes of the proceedings. His Honour then said 'Regardless, as part of the sentencing exercise, I take into account the likely impacts of your offending on the victim'.45 119 The learned sentencing judge then said 'I turn then to the issue of aggravating and mitigating factors, and I will start with the former'.46 The impugned phrase was the fourth of the aggravating factors discussed by his Honour.47 120 The sequence, and the use of the expression 'I turn then' at the start of the discussion of the impact on the victim and then again at the start of the discussion of the aggravating and mitigating factors, demonstrates that the impugned phrase was not referring to the trauma, distress and humiliation Freya would have suffered. 121 Having rejected the State's construction, the question becomes: what did the learned sentencing judge mean by the impugned phrase? 122 In our view, the impugned phrase was used in the sense identified in the appellant's first possible interpretation, namely that the offending had a 'corrupting' effect on Freya in a way that made the appellant's offending more serious than offending that did not have such an effect (either because of Freya's lack of prior sexual experience or because it 45 WAB 123. 46 WAB 123. 47 WAB 124. -- 23 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 24 impacted on her future willingness to engage in unlawful sexual activity). 123 First, this would be consistent with the way in which 'corruption' is used in those cases which have referred to the corruption of child victims of sexual offending.48 124 Second, the concept of corruption was not mentioned by either counsel, or the learned sentencing judge, in the sentencing hearing. However, in its written submissions to the sentencing judge, the State submitted that one of the aggravating factors of the offending was:49 There is an element of corruption of innocence of an underaged girl, with whom the offender performed a number of sexual acts, which included cunnilingus, fellatio, and penetration of her vagina and anus, portions of which he filmed. (emphasis added) 125 The State did not explain what was meant by 'corruption of innocence', but we would infer that it was a reference to sexual inexperience. 126 We would also infer that the learned sentencing judge had this submission in mind when his Honour uttered the impugned phrase. 127 For these reasons, we consider that his Honour found, as an aggravating factor, that the offending had a 'corrupting' effect on the victim in a way that made this offending more serious than offending that did not have such an effect, because, due to Freya's lack of prior sexual experience, her innocence was 'corrupted'. 128 We accept the appellant's submission that there was no factual basis for such a finding. There was no evidence - one way or the other - as to Freya's prior sexual experience. 129 For these reasons, we would grant leave to appeal on ground 1 and uphold this ground. 130 The resolution of this ground of appeal does not require us to consider those cases in which it has been suggested that the prior sexual experience of a child was relevant to whether the offending had 'corrupted' the child. Nevertheless, given the State's submissions to the learned sentencing judge, and his Honour's seeming adoption of them, it is appropriate to make the following observations. 48 See Dempsey, 7 and Avery [18]. 49 WAB 141. -- 24 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 25 131 The dictionary definition of 'corruption' relates the concept to the worth or value of the person corrupted. As was pointed out by senior counsel for the appellant, Mr Yovich SC, the intrinsic worth or value of a child is not reduced, in any way, by sexual offending against that child. 132 In The State of Western Australia v SJH,50 Wheeler JA said, after referring to the dictionary definition of 'corruption': Whatever views may have been taken in earlier times about the need for purity (particularly female purity), I am unable to accept that the legislature was concerned about sexual activity with children because of a perception of that kind. Certainly, the Parliamentary Debates reveal no such purpose. 'Corruption' is a red herring. 133 In our view, the only sense in which sexual offending against a child can be said to be corrupting is where the offending compromises the child's own developing sense of right or wrong, or the offending behaviour is otherwise normalised, thereby increasing the child's vulnerability to further exploitation. This was the sense in which it was used in, for example, Dixon v The King,51 where evidently impoverished children and their parents were exploited by the offender to engage in sexual conduct for his gratification, which led to parents and family members arranging for the abuse of their own children, children being prepared to abuse other children, and children seeking out the offender for money. At least one of the adult accomplices, who offered up her own child to be sexually abused in return for money, had herself been sexually abused as a child, demonstrating the normalising effect the offending had had on her as a child. 134 Used in this sense, it is plain that, whatever may have been thought in the past, whether offending conduct against a child 'corrupts' the child turns upon whether the offending compromises the child's own developing sense of right or wrong, or normalises the offending in the child's mind, not on the prior sexual experience of a child. 135 For this reason, we would prefer to describe these effects as 'normalising' rather than 'corrupting'. 136 It should also be remembered that the purpose of the law in protecting children from sexual abuse by adults also extends to protecting children from their own immaturity and the effect this may 50 SJH [58]. 51 Dixon v The King [2026] WASCA 48. See [43] and [188]. -- 25 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 26 have on their capacity to make, and appreciate the consequences of, certain decisions. The protection of the law is not confined to children who have no sexual experience. 137 Of course, depending upon the age and level of understanding of the child and the facts of the offending, a lack of sexual experience on the part of a child may increase the fear and trauma the child suffers as a result of offending behaviour. Nothing we have just said is to be understood as suggesting otherwise. Resentencing 138 As we have upheld grounds 1 and 2, it is necessary to resentence the appellant. This court has all the necessary material to undertake the resentencing exercise. Additional evidence 139 The appellant sought leave to adduce additional evidence in the appeal, in relation to his experiences in custody. The State did not oppose leave being granted, for the limited purpose of resentencing, if the appeal was allowed. As we would allow the appeal, we would grant leave. 140 The additional evidence was an affidavit sworn by the appellant on 19 March 2026. 141 The appellant says that, after he was remanded in custody, he elected to go into protective custody due to the nature of his charges. He described the more restrictive conditions which apply to prisoners in protective custody compared to the conditions which apply to mainstream prisoners. 142 Where an accused has experienced, or is likely to experience, materially more arduous conditions than those experienced by the general prison population (other than for reasons attributable to breaches of prison rules or disciplinary requirements), this will be treated as a mitigating factor in the sentencing exercise.52 143 The weight to be given to this factor will depend on the circumstances of the case, including the reasons why the offender 52 Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [152] (Buss JA); CGF v The State of Western Australia [2023] WASCA 187 [306] (Mazza JA, with whom Quinlan CJ and McGrath J agreed). -- 26 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 27 required or is likely to require protection and the duration or likely duration of the materially more arduous conditions.53 144 In this case, the reason why the appellant elected to go into protective custody was the nature of his charges. It is a notorious fact that persons convicted of offences against children are at risk of reprisal in prison.54 While the appellant is entitled to some mitigation for the materially more arduous conditions of protective custody, the degree of mitigation will not be as great as it would be, for example, for police informers in protective custody, or for those offenders whose disabilities make their incarceration materially more onerous.55 145 The appellant also said that, when he was in Hakea prison, he was one of three people occupying a cell designed for two people. However, there was no evidence as to whether this was different to the conditions experienced by the general prison population. In our view, unless there is something about the conditions that make, or will make, the service of a term of imprisonment more onerous for that prisoner compared to the general prison population, it is not relevant to the sentencing exercise.56 146 The appellant also described difficulties in accessing medical treatment and courses, and the conditions he experienced in his first night in Acacia prison. Again, there is no evidence that these were any different to the experiences of other prisoners. 147 The appellant outlined the jobs he had done in prison. He appears to have worked hard and well, when given the opportunity. This is to his credit. Appropriate sentence 148 We have already addressed the seriousness of the offences, the need for general deterrence, the mitigating factors, and the comparable cases. 149 Like the learned sentencing judge, we would allow a 25% discount for the appellant's early pleas of guilty under s 9AA of the Sentencing Act. 53 Milenkovski [154] (Buss JA); CGF [306] (Mazza JA, with whom Quinlan CJ and McGrath J agreed). 54 CGF [312] (Mazza JA, with whom Quinlan CJ and McGrath J agreed). 55 CGF [311] - [312] (Mazza JA, with whom Quinlan CJ and McGrath J agreed). 56 See Milenkovski [152] - [153] (Buss JA); CGF [305] - [306] (Mazza JA, with whom Quinlan CJ and McGrath J agreed). -- 27 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 28 150 To ensure that the appellant is not doubly punished for the recording of some of the offending, we will not take the recording into account when assessing the seriousness of the offending in counts 1 - 8. 151 We consider that, having regard to all relevant sentencing factors, the appropriate sentences for each of the individual counts is as follows: 1. in respect of count 1: 1 month immediate imprisonment; 2. in respect of count 2: 2 months' immediate imprisonment; 3. in respect of count 3: 2 months' immediate imprisonment; 4. in respect of count 4: 2 years' immediate imprisonment; 5. in respect of count 5: 2 years' immediate imprisonment; 6. in respect of count 6: 2 years 2 months' immediate imprisonment; 7. in respect of count 7: 2 years 2 months' immediate imprisonment; 8. in respect of count 8: 12 months' imprisonment; 9. in respect of count 9: 10 months' imprisonment. 152 In our view, the total effective sentence that properly reflects the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant, is one of 2 years 8 months' imprisonment. We would achieve that result by reducing the sentence with respect to count 8 to 6 months' imprisonment (for reasons of totality) and ordering that the sentence for count 8 be served cumulatively on the sentence for count 7. The other sentences will be ordered to be served concurrently with the sentence for count 7. 153 We are positively satisfied that this is not an appropriate case to order that any of the terms of imprisonment be suspended. 154 The sentence is to take effect from 13 June 2025, to take into account the time spent in custody. 155 We would not disturb the lifetime violence restraining order made, and it should remain. -- 28 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 29 156 The appellant should be made eligible for parole. Orders 157 For these reasons, we would make the following orders: 1. Leave to appeal is granted on grounds 1 and 2. 2. Leave to appeal is refused on ground 3. 3. The appeal is allowed. 4. The sentences imposed by the District Court on IND 2048 of 2024 are set aside. 5. Leave to adduce in evidence the appellant's affidavit sworn 19 March 2026 is granted. 6. The appellant is resentenced on District Court Indictment IND 2048 of 2024 as follows: (a) in respect of count 1: 1 month immediate imprisonment; (b) in respect of count 2: 2 months' immediate imprisonment; (c) in respect of count 3: 2 months' immediate imprisonment; (d) in respect of count 4: 2 years' immediate imprisonment; (e) in respect of count 5: 2 years' immediate imprisonment; (f) in respect of count 6: 2 years 2 months' immediate imprisonment; (g) in respect of count 7: 2 years 2 months' immediate imprisonment; (h) in respect of count 8: 6 months' imprisonment (reduced from 12 months' imprisonment for totality); (i) in respect of count 9: 10 months' imprisonment. 7. The new sentence for count 7 is the head sentence. The new sentence for count 8 is to be served cumulatively on the -- 29 of 30 -- [2026] WASCA 75 JUDGMENT OF THE COURT Page 30 sentence for count 7. Each of the other new sentences are to be served concurrently with the new sentence for count 7. 8. The total effective sentence is therefore 2 years 8 months' immediate imprisonment. 9. The sentence is to take effect from 13 June 2025. 10. The appellant is eligible for parole. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DH Associate to the Hon Justice Archer 29 MAY 2026 -- 30 of 30 --