STEWART ELLIOT SMYTHE (A Pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 107

[2026] WASCA 107 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STEWART ELLIOT SMYTHE (A Pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 107 CORAM : THOMSON P MITCHELL JA VAUGHAN JA HEARD : 20 JULY 2026 DELIVERED : 20 JULY 2026 PUBLISHED : 27 JULY 2026 FILE NO/S : CACR 116 of 2025 BETWEEN : STEWART ELLIOT SMYTHE (A Pseudonym) Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : ZEMPILAS DCJ File Number : IND XXXX of 20XX -- 1 of 23 -- [2026] WASCA 107 Page 2 Catchwords: Criminal law - Appeal against sentence - Child sexual offences including two counts of attempted sexual penetration - Where primary judge used incorrect maximum sentence on two counts when sentencing appellant - Material error - Appeal allowed and appellant resentenced - Where appellant resentenced to reduced sentence on two counts but to same total effective sentence Legislation: Nil Result: Leave to appeal granted Appeal allowed Category: B Representation: Counsel: Appellant : R G Wilson Respondent : N R Sinton Solicitors: Appellant : Tudori Hager Grubb Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): ARX v The State of Western Australia [2023] WASCA 169 Cooper v The State of Western Australia [2020] WASCA 199; (2020) 286 A Crim R 28 HDSO v The State of Western Australia [2025] WASCA 152 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 OTR v The State of Western Australia [No 2] [2022] WASCA 123 Ratcliffe v The State of Western Australia [2026] WASCA 75 -- 2 of 23 -- [2026] WASCA 107 Page 3 Roffey v The State of Western Australia [2007] WASCA 246 Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1 Willis (A Pseudonym) v The State of Western Australia [2026] WASCA 81 -- 3 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 4 REASONS OF THE COURT: Overview 1 On 6 February 2025, after a trial before a District Court judge (Zempilas DCJ) and a jury that resulted in verdicts of guilty, the appellant was convicted of 20 sexual offences involving his biological daughter. The offences are summarised in the schedule to these reasons. They included, by counts 12 and 13, two counts of attempted sexual penetration of a child under 13 years of age, contrary to s 552(1) read with s 320(2) of the Criminal Code (WA) (Code). 2 The appellant was subsequently sentenced on the individual counts to the terms of imprisonment stated in the schedule. Orders for cumulacy and concurrency were made that resulted in a total effective sentence of 12 years' imprisonment. The sentencing judge also ordered that the appellant was to be eligible for parole. 3 Much later, well after the time for lodging an appeal notice as provided by s 28(3) of the Criminal Appeals Act 2004 (WA), the appellant applied for leave to appeal against the sentences. In substance the appellant contended that the sentencing judge made an express error of law when sentencing on the two offences of attempted sexual penetration of a child. The sentencing judge imposed individual sentences of 5 years' imprisonment on each count. However, in sentencing her Honour stated, incorrectly, that the maximum penalty for those counts was 20 years' imprisonment (ts 820). By operation of s 552(2)(b) of the Code the maximum penalty for those offences of attempted sexual penetration of a child under 13 years of age is 10 years' imprisonment. 4 The State conceded that the sentencing judge erred in the manner alleged by the appellant. The State also conceded that the error was material. Accordingly, the exercise of the sentencing discretion having miscarried, the State invited the court to allow the appeal and resentence the appellant. 5 The appeal was heard on 20 July 2026. At the appeal hearing the court accepted the State's concession; granted an extension of time and leave to appeal; and allowed the appeal. The court proceeded to resentence the appellant. The individual sentences on the two attempt offences were reduced. However, the court, exercising the sentencing discretion afresh, was satisfied that the same total effective sentence should be imposed on the appellant. The court stated that it would -- 4 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 5 provide written reasons for its orders as soon as practicable. These are the court's reasons for the orders made 20 July 2026. Why the appeal was allowed 6 The sentence imposed on an offender must be commensurate with the seriousness of the offence: Sentencing Act 1995 (WA), s 6(1). The seriousness of an offence is determined by taking into account, among other things, the statutory penalty for the offence: Sentencing Act, s 6(2)(a). So understood the maximum penalty for an offence serves as an indication of its relative seriousness: Muldrock v The Queen.1 Thus why it is said that the maximum penalty for an offence is one of the yardsticks by which the sentence to be imposed is measured - it signifies Parliament's view of the gravity of the offence and must be taken into account: Timbrell v The State of Western Australia [No 2].2 See also Markarian v The Queen.3 7 If, as occurred in this case, a sentencing judge is mistaken as to the maximum penalty for an offence, it signifies error on the part of the sentencing judge as to the relative seriousness of offending of that kind. The error so established is an error of law: ARX v The State of Western Australia.4 It involves the sentencing judge acting on a wrong principle. A significant error as to the maximum penalty will usually, although not inevitably, be material to the exercise of the sentencing discretion: Cooper v The State of Western Australia;5 ARX [53]. 8 The error was material in the present case. There is a marked difference between the maximum penalty as stated by the sentencing judge and the maximum penalty provided by law. In providing for the offence of an attempt to commit some other indictable offence, and fixing the statutory penalty for the attempt offence at half of the penalty with which the relevant principal offence is punishable, s 552 of the Code creates and recognises an offence of a lesser category of seriousness. The sentencing judge's error placed the appellant's offending into the more serious category of the principal offence of sexual penetration of a child under 13 years of age rather than an attempt to commit that crime. The error was capable of affecting the 1 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]. 2 Timbrell v The State of Western Australia [No 2] [2013] WASCA 269; (2013) 240 A Crim R 1 [98]. 3 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31]. 4 ARX v The State of Western Australia [2023] WASCA 169 [7] - [8]. 5 Cooper v The State of Western Australia [2020] WASCA 199; (2020) 286 A Crim R 28 [151]. -- 5 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 6 sentence imposed by the sentencing judge in the sense explained in HDSO v The State of Western Australia.6 9 This error was plainly inadvertent. The State's written sentencing submissions correctly identified the maximum penalty for the two offences of attempted sexual penetration of a child under 13 years of age (par 13). The error occurred at the outset of the sentencing judge's sentencing remarks. It is understandable that such an error might be made and not immediately noticed when sentencing an offender for multiple offences in a busy sentencing list. That said, careful attention to sentencing remarks as they are delivered is an important aspect of counsel's duty to assist the court to avoid errors of this kind. If the error had been noticed, it would have been appropriate for the prosecutor or defence counsel briefly to interrupt the sentencing remarks at that point to draw the sentencing judge's attention to the error. Such an interruption would not have involved any disrespect to the sentencing judge, who would no doubt have appreciated counsel's vigilance. The need for an appeal might also have been avoided if the error had been brought to the sentencing judge's attention after the sentencing hearing but before the Certificate of Final Outcome of charge had been signed. 10 The appellant's grounds of appeal were made out. There was a material error of law so far as the sentencing judge was mistaken as to the maximum penalty on the two offences of attempted sexual penetration of a child. Moreover, for reasons that will become apparent, a different lesser sentence should have been imposed on each of the counts. The obvious merit of the appeal justified the grant of an extension of time and leave to appeal so that the appeal could be allowed and the appellant resentenced according to law. The resentencing of the appellant 11 This court had the necessary materials to resentence the appellant. 12 We were provided with the materials that were before the sentencing judge together with a transcript of the parties' submissions at the sentencing hearing and her Honour's sentencing remarks. In addition, the appellant sought to rely on his affidavit sworn 8 July 2026 as additional evidence in the appeal in relation to his resentencing. The State did not oppose the affidavit being received for that purpose. Accordingly, the affidavit was admitted as evidence in the appeal in relation to the resentencing of the appellant. 6 HDSO v The State of Western Australia [2025] WASCA 152 [77]. -- 6 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 7 13 There was no complaint about the sentencing judge's findings in relation to the objective circumstances of the offending (ts 820 - 824) or the appellant's personal circumstances (ts 824 - 825). For the purpose of this court's resentencing it suffices to summarise the sentencing judge's findings on those matters. We do so below. We will also refer to the victim impact statement that was before the sentencing judge and other relevant matters. The objective circumstances of the offending 14 The appellant was convicted after trial by jury of ten counts of indecently dealing with a child under 13; three counts of sexual penetration of a child under 13; two counts of attempted sexual penetration of a child under 13; four counts of indecently dealing with a child over the age of 13 and under the age of 16; and one count of sexual penetration of a child over the age of 13 and under the age of 16. The victim of the offending, Imogen (not her real name), is the biological daughter of the appellant. At the time of the offending the appellant lived with his wife (Imogen's mother), and their four children including Imogen, at various homes in a regional area in Western Australia. 15 Imogen is the second youngest of the appellant's children and is the only daughter to the appellant. 16 Count 1 occurred when Imogen was four years of age. The appellant was at the then family home with the four children. The appellant's wife was not home. Imogen was in her parents' bedroom. The appellant asked Imogen to lay with him. The appellant was naked under the blankets. The appellant put his hand on Imogen's hand and proceeded to masturbate himself by moving their hands up and down his penis to the point of ejaculation. 17 Counts 2, 3 and 4 occurred when Imogen was about four years of age and was in her parents' bedroom. Again, the appellant's wife was not home. Imogen was sitting on the bed. The appellant was laying on the bed either naked or wearing shorts with the zipper down. The appellant put his hand on his penis and moved it up and down. Using his native language the appellant asked Imogen to kiss his penis. Imogen kissed the appellant's penis. The appellant asked Imogen to lick his penis. She did so with her tongue. Over time Imogen stopped and then sat up. The appellant then told Imogen to fondle his testicles while he masturbated his penis. The appellant again ejaculated. -- 7 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 8 18 Counts 5, 6, 7 and 8 occurred during the same time period when Imogen was about four years of age. Again, the appellant and Imogen were in the bedroom at the family home. Imogen hugged the appellant when they were both naked on a bed. While Imogen lay on her back the appellant touched her vagina and rubbed it in a circular motion under her shorts but over her underwear. Over time the appellant touched Imogen's vagina on her clitoris under Imogen's underwear. The appellant moved Imogen's hand on to his penis over his clothes. The appellant then took his penis out and masturbated until ejaculation while Imogen watched. At the same time the appellant asked Imogen to fondle his testicles. Imogen complied. The appellant also suggested that Imogen lick his penis. However, she did not. 19 Count 9 occurred when Imogen was about five years of age and at pre-primary school. The appellant's wife was at work. Imogen had finished showering and the appellant took her from the bathroom into her bedroom. The appellant closed the door. The appellant took Imogen's towel off and kissed her on the lips and cheek. The appellant then pushed Imogen on to the bed by her shoulders. The appellant knelt and licked Imogen's vagina with his tongue. At the time the appellant's sons were outside the room. The appellant told them to wait outside. 20 Counts 10, 11, 12, 13 and 14 occurred in August 2013 when the appellant's youngest son was in hospital in Perth for the treatment of a burst appendix. Imogen was seven years of age. The appellant's wife stayed in Perth with the youngest son. Imogen and the appellant returned to the then family home. That night Imogen slept in the parental bedroom with the appellant. The appellant felt Imogen's breasts under her clothing and took off his clothes and underwear. The appellant then put Imogen's hand on his penis and used his hand to move Imogen's hand up and down on his penis. While Imogen was on her back the appellant put his penis on the opening of her vagina. The appellant tried to push his penis into Imogen's vagina, but it would not go in. The appellant asked Imogen: 'Did it hurt? Why isn't it going in?'. 21 The appellant moved on to his back and asked Imogen to get on top of him. Imogen complied and straddled the appellant. The appellant again tried to fit his penis into Imogen's vagina; but it would not go in. The appellant kept moving Imogen around into different positions to try and fit his penis into her vagina. Eventually the appellant tapped Imogen on the shoulder and she got off. Afterwards -- 8 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 9 the appellant grabbed his penis and started masturbating. He also kissed Imogen on the mouth. 22 The following day the appellant asked Imogen what she did and did not like. Imogen did not reply. The appellant became irritated and said: 'Well, how am I supposed to know what you like and don't like for next time?'. 23 Count 15 occurred when Imogen was 11 or 12 years of age after the family had moved house in early 2017. One morning the appellant entered Imogen's bedroom, got into her bed and hugged her around the waist. The appellant then used his hands to feel and fondle her breasts over her clothing. The appellant spoke to Imogen. When Imogen did not answer the appellant became angry and left the room. The appellant's wife and sons were at home at the time. 24 Counts 16, 17, 18, 19 and 20 occurred when Imogen had just turned 13 years of age. Imogen was sleeping in her parents' bed. The appellant and the appellant's wife were also in the bed. The appellant was between Imogen and his wife, facing Imogen. The appellant started fondling Imogen's breasts over her T-shirt. He then felt Imogen's breasts under her T-shirt touching all of her breasts. The appellant lifted the T-shirt and put his mouth on both of Imogen's nipples and kissed them. 25 The appellant moved his hand down to Imogen's vagina. The appellant rubbed his fingers on Imogen's vagina in a circular motion on her clitoris. He kissed Imogen on the mouth and tried to push in his tongue. Imogen clenched her teeth so that the appellant could not kiss her that way. The following day Imogen would not reply when the appellant spoke to her. The appellant became upset and said: 'Just like that you don't love me anymore'. 26 The sentencing judge made other factual findings relevant to the seriousness of the appellant's offending. 27 The sentencing judge found that, over the years of the offending, the appellant constantly told Imogen not to tell anybody about the sexual conduct, especially her mother. The appellant would whisper into Imogen's ear: 'Remember not to tell anyone'. The sentencing judge also found that the offending occurred against a background of ongoing conduct of a 'sexualised and manipulative nature'. The offending began when Imogen would sleep in the same bed with the appellant. At the time the appellant and Imogen were very close. The -- 9 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 10 appellant began teaching Imogen what to do by moving her hand around and touching his body or asking her to do things in his native language. The appellant would use a 'flicking motion' with Imogen to indicate that he wanted to have sexual contact. 28 The appellant offended against Imogen in a sexual way on other occasions by touching her breasts and vagina, asking Imogen to lick his penis and by using Imogen's hands to touch himself on the penis or testicles. In that respect, as the appellant accepted in his written submissions, the offences of which the appellant was convicted were representative of a course of offending (appellant's submissions, par 1). The sentencing judge specifically found that the appellant engaged in sexual conduct with Imogen while on an overseas family holiday to his country of birth in January 2019. While the family was asleep the appellant engaged in conduct almost identical to counts 16 to 20. 29 The sentencing judge found that the appellant was strict and controlling in the family household, particularly with Imogen, in an attempt to prolong the opportunities the appellant had to offend against Imogen. The appellant's personal circumstances 30 The appellant was between 31 and 41 years of age at the time of the offending. When he was sentenced the appellant was 46 years of age. At the time of the appeal hearing the appellant was 47 years of age. 31 The appellant was born overseas in a south-east Asian country. He was one of three children born to his parents. The appellant had a stable childhood. The appellant's parents remained married until his father died in 2010. The appellant immigrated to Western Australia in 2006 with his wife joining in 2007 followed by their children in 2009. In 2010 the appellant and his family became Australian citizens. The appellant remains in contact with his mother and siblings who remain in his country of birth. 32 As already mentioned, the appellant is married and has four children with his wife. His wife and three sons remain supportive of him. Imogen, as the victim of the appellant's offending, does not live with, have support from or have contact with her mother or brothers. The sentencing judge found that the appellant's denials of the offending were a significant factor in Imogen having to leave her home and in her becoming estranged from her family (ts 826). -- 10 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 11 33 In terms of education, the appellant completed the equivalent of Year 12 studies in his country of birth. He then attended university on a scholarship obtaining a degree in mathematics. The appellant has worked consistently in various roles. Those roles include being an auditor in the appellant's country of birth. Since moving to Australia the appellant has worked as a seasonal worker in the regional area in which he lived as well as occupying fly-in / fly-out and warehousing positions. 34 The sentencing judge accepted that the appellant was the significant financial contributor to his family. 35 The appellant had no prior criminal history (ts 826). 36 Nor did the appellant have a history of substance use. He suffered from diabetes. Prior to his incarceration the appellant was treated for anxiety. The appellant reported a decline in his mental health arising from situational anxiety after being remanded in custody. The appellant also claimed to have a cardiac issue. No evidence of such a condition was adduced before the sentencing court. 37 The sentencing judge referred to a pre-sentence report together with several character references. The appellant was described as hardworking. He was said to be quiet, reliable and caring towards family, colleagues and his employers. Based on the references the sentencing judge found that the appellant had ongoing support and would continue to enjoy ongoing support on his release from custody. 38 It was apparent from the pre-sentence report, and confirmed by defence counsel appearing for the appellant at the sentencing hearing, that the appellant did not accept any responsibility for his offending - instead persisting in saying that the offending simply never happened (ts 809). The victim impact statement 39 Imogen's victim impact statement provides a graphic illustration of the painful and insoluble emotional turmoil that is often experienced by a child who is offended against by a parent. 40 The victim impact statement speaks eloquently of the love that Imogen continues to hold for her father and her family. Imogen expresses empathy for her father and feels guilt that he has been incarcerated - but also knows that it is right that this has happened. -- 11 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 12 Imogen acknowledges that she also holds contradictory (and, we would add, perfectly justifiable) feelings of anger for her father's conduct and denials. Imogen says that she has suffered a personal hell and punishment and derives no satisfaction from the result of the trial. To the contrary Imogen says that she is met with 'a constant feeling of grief, loneliness, guilt, anger and unexplainable sadness'. 41 Regrettably, through no fault of her own, Imogen says that she has been ostracised to feel that she has done something wrong. She expresses loss and grief and feeling that her life has stopped - it does not feel like she is living. Imogen struggles to enjoy aspects of her life, being constantly consumed with sadness, anger and confusion together with constant images of her abusive childhood. At times she has been unable to get out of bed or properly speak, move and function. This court's resentencing of the appellant 42 The principles that apply when sentencing for sexual offending against children are well-established. In OTR v The State of Western Australia [No 2] this court summarised those principles as follows: 1. There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves. 2. The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children. 3. Matters personal to an offender will ordinarily carry less weight. 4. In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.7 43 In the recent decision of Willis (A Pseudonym) v The State of Western Australia8 the court identified relevant factors to be taken into account in assessing the seriousness of a course of conduct involving child sex offending. It is not necessary to repeat the lengthy passage 7 OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55]. 8 Willis (A Pseudonym) v The State of Western Australia [2026] WASCA 81 [193] - [194]. -- 12 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 13 found in Willis. It suffices to state that we had regard to and applied that passage in evaluating the seriousness of the appellant's offending. 44 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. It also reflects the fact that the offender has not simply given way to impulse on an occasion: OTR [No 2] [57]. 45 The appellant established material error in the individual sentences the subject of count 12 and count 13. There was no challenge to the other individual sentences imposed by the sentencing judge. In the circumstances we were not satisfied that other individual sentences should be set aside and there should be a resentencing on the other individual sentences. Nor did the appellant contend that this should occur. The appellant only contended that different sentences should have been imposed for the offences the subject of count 12 and count 13 and the total effective sentence (appellant's submissions, par 19). In any event, having considered the individual sentences on the other individual counts, we were satisfied that those individual sentences were commensurate with the seriousness of the appellant's offending. 46 In forming that view we considered the applicable aggravating and mitigating factors of the other individual offences. 47 The sentencing judge identified aggravating and mitigating factors in relation to the appellant's offending (ts 825 - 828). We agree generally with her Honour's recitation of the aggravating and mitigating factors. However, where this court resentences following a successful appeal against sentence it resentences by exercising the discretion afresh. It is appropriate that we set out, in a summary form, the applicable aggravating and mitigating factors. 48 The appellant's course of offending involved the following aggravating factors: 1. The appellant groomed Imogen - he demanded secrecy and manipulated her emotionally. 2. The offending involved a substantial breach of trust. The appellant was Imogen's father. The offending occurred in the family home. Often the offending occurred while the -- 13 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 14 appellant's wife was out of the family home and the appellant was Imogen's primary caregiver. The appellant took advantage of his close relationship with Imogen to commence and escalate his offending. He also used his position within the household to create opportunities to be alone with Imogen so as to offend against her. In that respect the offending was planned and predatory. 3. Imogen was a young vulnerable child - the offending occurred while Imogen was between 4 and 13 years of age. 4. There was a marked disparity in age between the appellant and Imogen. 5. The offending was persistent, repetitive and sustained. It spanned nine years and seven discrete incidents. Also, the offending of which the appellant was charged, tried and convicted was representative of other offending against Imogen. The appellant is not to be punished for that other offending. But in assessing the seriousness of the appellant's offending it is relevant that the seven charged incidents were not isolated. 6. The offending involved multiple forms of serious sexual offending against a young child including sexual penetration (procuring fellatio, engaging in cunnilingus and digital-vaginal penetration) and attempted penile-vaginal sexual penetration. 7. The offending only ceased when Imogen took action to end it upon reaching an age where she was aware that it was wrong. 8. The consequences of the offending have been devastating for Imogen (as is evidenced by the victim impact statement and Imogen's estrangement from her family). 49 There was little by way of mitigating factors to reduce the appellant's culpability. The appellant had no prior criminal history. While, in this respect, the appellant was otherwise of prior good character, the sentencing judge found - and we agree - that the offending was not out of character for the appellant. That is clearly the case where the appellant repeatedly offended against his daughter over some nine years. In any event, as was stated in OTR [No 2], prior good character has little weight in cases of sexual offending against children. The sentencing judge took into account the financial hardship that would be suffered by the appellant's family and that the appellant's -- 14 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 15 incarceration may prove more onerous because of his mental health. Those findings might be thought to be generous given the limited basis to find that these matters would affect the appellant any more than the general prison population. But since they were not challenged by the State for the purpose of resentencing we were prepared to accept them. 50 In support of his resentencing the appellant relied on his affidavit sworn 8 July 2026. This, in substance, referred to the conditions that the appellant had experienced while at Hakea Prison when on remand and immediately following his sentencing. In total the appellant was at Hakea Prison for 326 days. He described the conditions as 'terrible'. The appellant particularised those conditions as follows. For the majority of the appellant's incarceration at Hakea Prison there were 22 hour lock-downs; in March 2025 there was a measles outbreak that resulted in 24 hour lock-downs for four weeks; throughout the appellant's incarceration at Hakea Prison prisoners were unable to take daily showers and fresh changes of clothes were only available after three days but sometimes were not available for up to seven days. Many of the telephones available to prisoners were broken and the appellant had limited access to those telephones. The appellant received limited visitations and had visitations cancelled. For most of the time the appellant was in a cell housing three prisoners. 51 The onerous conditions suffered by the appellant in Hakea Prison provide little by way of mitigation. As this court recently stated in Ratcliffe v The State of Western Australia (again in relation to the conditions in Hakea Prison): 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. … 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 -- 15 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 16 the general prison population, it is not relevant to the sentencing exercise.9 (citations omitted) 52 The conditions described by the appellant are concerning. It is unsurprising that prisoners such as the appellant report a decline in their mental health due to situational anxiety in experiencing such conditions. But those who are responsible for the welfare and safe custody of prisoners under the Prisons Act 1981 (WA) are no doubt well aware of their duties. In this appeal the only question for the court is whether the conditions the appellant says he has experienced at Hakea Prison are a significant mitigating factor. They are not. There is nothing in the appellant's affidavit by which it can be concluded that his personal circumstances are such that he has experienced materially more arduous conditions than those experienced by the general prison population. 53 It was first necessary for the court to resentence the appellant on the two offences of attempted sexual penetration of a child under 13 years of age (ie the offences the subject of counts 12 and 13). This is because the orthodox practice is to fix the appropriate sentences for individual offences and thereafter to consider questions of cumulation or concurrency. 54 As we have stated, the maximum penalty for each offence is 10 years' imprisonment. The appellant's offences were serious examples of this kind of attempt offence. Imogen, the victim, was seven years of age at the time of the offences. The appellant attempted to sexually penetrate Imogen by way of penile-vaginal penetration. The attempts took place in the context of the aggravating factors we have referred to more generally. The attempts were not fleeting. The appellant was persistent in his attempts. He first attempted to sexually penetrate his daughter while on top of her. When that attempt failed the appellant moved on to his back and moved Imogen into different positions trying to fit his penis into Imogen's vagina. Each attempt offence was at the upper-middle of the scale of seriousness of an offence of its kind. Both attempt offences had serious features that warranted a substantial term of imprisonment. 55 In all the circumstances a sentence of 4 years' immediate imprisonment is commensurate with the seriousness of the attempt offences the subject of counts 12 and 13. Accordingly, we resentenced the appellant to 4 years' immediate imprisonment on each of those 9 Ratcliffe v The State of Western Australia [2026] WASCA 75 [142], [145]. -- 16 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 17 counts (although, as will be seen, for reasons of totality we reduced the 4 years' immediate imprisonment on count 13 to 1 year' immediate imprisonment). 56 In allowing the appeal and resentencing on counts 12 and 13 it was necessary that the court set aside the sentencing judge's orders for cumulacy and concurrency and assess for itself the question of totality. That was inevitable where the sentencing judge proceeded on the basis that the sentence on count 12 was to be the head sentence. The foundation for the sentencing judge's orders for cumulacy and concurrency was undone insofar as this court set aside the sentence on count 12 and provided for a different lesser sentence in relation to that count. 57 The totality principle is well established and needs limited further explication in these reasons. See generally Roffey v The State of Western Australia10 and Willis [133] - [134], [145] - [146]. 58 In determining the total effective sentence that bore a proper relationship to the overall criminality involved in all the appellant's offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally, it was appropriate to consider contemporary sentencing standards in broadly comparable cases. This court conducted an examination of contemporary sentencing standards in cases of serious intra-familial sexual offending against children in the recent decision of Willis. It is not necessary to undertake that task again in these reasons. It suffices to state that in determining the total effective sentence we had regard to the exposition of contemporary sentencing standards in Willis [145] - [195] (see esp [189] - [192]). 59 Of particular relevance to the present case is the conclusion in Willis as to the pattern emerging in single victim child sexual offending cases where convictions were recorded after trial: [W]here 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 10 Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]. -- 17 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 18 where the total effective sentence exceeded 12 years' imprisonment (see ARK [94]) [189](4). (citations omitted) 60 In the application of the totality principle, we concluded that a total effective sentence of 12 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. 61 The aggravating factors we have mentioned marked the appellant's offending as a particularly serious example of intra-familial sexual offending against a single child victim. Most significantly, the offending commenced when Imogen was four years of age and continued until she was 13 years of age. Such prolonged sexual offending by a father against his biological daughter carries with it an increased risk of significant and enduring harm to the victim. In the present case it has resulted in the emotional turmoil that Imogen poignantly expresses in her victim impact statement. The 20 offences occurred in seven distinct incidents. The sexual activity encompassed by the offending involved serious sexual offending against a young girl including sexual penetration and attempted penile-vaginal sexual penetration. There was little by way of mitigation to reduce the appellant's culpability. The broadly comparable cases referred to in the passage we have reproduced from Willis were consistent with and supported a total effective sentence of 12 years' imprisonment. 62 To achieve the total effective sentence of 12 years' imprisonment we reduced the individual sentence on count 13 to 1 year' immediate imprisonment and ordered that the sentences on counts 3, 5, 9, 12 and 13 be served cumulatively on each other (with the sentence on count 12 to be the head sentence). All of the other sentences were to be served concurrently with the sentence on count 12 and with each other. We were conscious that count 12 and count 13 were part of the same incident. Had we adjusted the sentences on each count we might well have decided to provide for the 12-year total effective sentence by providing for the accumulation of different sentences. But where the principle of totality comes into effect it is of little importance how the total effective sentence is made up. In the present case, because we only adjusted the individual sentences on counts 12 and 13, we were conscious that some of the individual sentences making up the total effective sentence had already been reduced for totality. We considered -- 18 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 19 it preferable to provide for a total effective sentence in a way that worked off the framework adopted by the sentencing judge. 63 We did not interfere with the backdating of the commencement of the sentence, or the parole eligibility order, as made by the sentencing judge. Conclusion and orders 64 It was for these reasons that we made orders as follows: 1. The time for the appellant to commence an appeal against the sentence imposed on him on 28 May 2025 by the District Court of Western Australia (Zempilas DCJ) in respect of the convictions the subject of indictment IND XXXX of 20XX is extended to 14 October 2025. 2. The appellant is granted leave to appeal on grounds 1 and 2 set out in the appellant's case dated 8 December 2025. 3. The appeal is allowed. 4. The sentences imposed on the appellant by Zempilas DCJ in the District Court of Western Australia on 28 May 2025 on counts 12 and 13 of indictment IND XXXX of 20XX are set aside together with the orders for cumulacy and concurrency made by Zempilas DCJ in relation to all of the sentences imposed on the counts of the indictment. 5. The appellant is granted leave to adduce his affidavit sworn 8 July 2026 as additional evidence in the appeal in relation to his resentencing; and the affidavit is admitted as evidence in the appeal in relation to the resentencing of the appellant. 6. The appellant is resentenced as follows in relation to the counts on indictment IND XXXX of 20XX: (a) Count 12 - a term of 4 years' immediate imprisonment. (b) Count 13 - a term of 4 years' immediate imprisonment reduced to 1 year' immediate imprisonment for totality. (c) The sentences on count 3 (2 years and 6 months' imprisonment after a reduction for totality), count 5 (1 year and 6 months' imprisonment after a reduction for totality), count 9 (3 years' imprisonment after a reduction for totality), count 12 (4 years' imprisonment) and count 13 (1 year' imprisonment after a reduction for totality) are to be served cumulatively on each other (with the sentence on count 12 to be the head sentence). -- 19 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 20 (d) The remaining sentences in relation to the counts on the indictment are to be served concurrently with the sentence on count 12 and with each other. (e) The new sentence is backdated to commence on 28 January 2025. 7. For the avoidance of doubt: (a) The new total effective sentence is 12 years' imprisonment backdated to commence on 28 January 2025. (b) The appellant remains eligible for parole. 65 It might be thought that little has been achieved by this appeal. While the appeal was allowed, and the appellant has been resentenced, this court imposed the same total effective sentence as was imposed by the sentencing judge. However, for the reasons we have explained, the initial exercise of the sentencing discretion involved appellable error. The appellant was entitled to be sentenced according to law. That has now occurred. In that respect the appeal was necessary to ensure the proper administration of justice. -- 20 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 21 Schedule Summary of offences and sentences imposed in District Court Count Nature Code Maximum Penalty Sentence11 Incident 1 - Victim 4 years of age 1 Indecent dealing with child under 13 by procuring her to touch penis s 320(4) 10 years 2 years Incident 2 - Victim 4 years of age 2 Indecent dealing with child under 13 by procuring her to touch penis s 320(4) 10 years 2 years 3 Sexual penetration of child under 13 by procuring her to engage in fellatio s 320(2) 20 years 2 years 6 months (cumulative) Reduced from 4 years for totality 4 Indecent dealing with child under 13 by masturbating in her presence s 320(4) 10 years 1 year 6 months Incident 3 - Victim 4 years of age 5 Indecent dealing with child under 13 by touching her vaginal area s 320(4) 10 years 1 year 6 months (cumulative) Reduced from 2 years for totality 6 Sexual penetration of child under 13 by digital-vaginal penetration s 320(2) 20 years 3 years 6 months 7 Indecent dealing with child under 13 by placing her hand on his penis s 320(4) 10 years 2 years 8 Indecent dealing with child under 13 by masturbating in her presence s 320(4) 10 years 1 year 6 months Incident 4 - Victim 5 years of age 9 Sexual penetration of a child under s 320(2) 20 years 3 years 11 Sentences are concurrent unless in bold. -- 21 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 22 Count Nature Code Maximum Penalty Sentence11 13 by engaging in cunnilingus (cumulative) Reduced from 4 years 6 months for totality Incident 5 - Victim 7 years of age 10 Indecent dealing with child under 13 by touching her chest s 320(4) 10 years 1 year 6 months 11 Indecent dealing with child under 13 by procuring her to touch penis s 320(4) 10 years 2 years 12 Attempted sexual penetration of a child under 13 by attempting to penetrate vaginal opening with penis s 552(1) s 320(2) 10 years 5 years (head sentence) 13 Attempted sexual penetration of a child under 13 by attempting to penetrate vaginal opening with penis s 552(1) s 320(2) 10 years 5 years 14 Indecent dealing with child under 13 by masturbating in her presence s 320(4) 10 years 1 year 6 months Incident 6 - Victim 11 or 12 years of age 15 Indecent dealing with child under 13 by touching her breasts s 320(4) 10 years 1 year 6 months Incident 7 - Victim 13 years of age 16 Indecent dealing with child aged 13 - 16 by touching her chest area s 321(4) 7 years 1 year 3 months 17 Indecent dealing with child aged 13 - 16 by touching her breasts s 321(4) 7 years 1 year 3 months 18 Indecent dealing with child aged 13 - 16 by placing mouth on her breasts s 321(4) 7 years 1 year 6 months 19 Sexual penetration of child aged 13 - 16 by digital-vaginal penetration s 321(2) 14 years 4 years -- 22 of 23 -- [2026] WASCA 107 REASONS OF THE COURT Page 23 Count Nature Code Maximum Penalty Sentence11 20 Indecent dealing with child aged 13 - 16 by kissing on mouth s 321(4) 7 years 1 year I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. PD Associate to the Hon Justice Vaughan 27 JULY 2026 -- 23 of 23 --