BURNESS -v- WILLIAMS [2026] WASC 312

[2026] WASC 312 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : BURNESS -v- WILLIAMS [2026] WASC 312 CORAM : COBBY J HEARD : 27 JULY 2026 DELIVERED : 31 JULY 2026 FILE NO/S : SJA 1093 of 2025 BETWEEN : JEFFREY DAVID BURNESS Appellant AND EMILY WILLIAMS Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE C CRAWFORD File Number : PE 60032-60033 of 2024; PE 64256-64268 of 2024 Catchwords: Criminal law - Sentencing - Possession and supply of indecent or obscene articles - Video files depicting bestiality - Whether sentences should be discounted for early indication of intent to plead guilty - Totality principle -- 1 of 15 -- [2026] WASC 312 Page 2 Legislation: Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) s 59 Criminal Appeals Act 2004 (WA) s 9, s 14, s 39, s 40, Sentencing Act 1995 (WA) s 9AA Result: Leave to appeal granted Appeal allowed Appellant resentenced Category: B Representation: Counsel: Appellant : Mr J Jackson Respondent : Mr J Kirke Solicitors: Appellant : James Jackson Criminal Defence Respondent : State Solicitor's Office Case(s) referred to in decision(s): Beins v State of Western Australia [No 2] [2014] WASCA 54 BSA v State of Western Australia [2025] WASCA 31 Cooke v Ritchie [2023] WASC 45 Crocker v Vinicombe [2019] WASC 416 Dartnall v State of Western Australia [2012] WASCA 251 Dragon v State of Western Australia [2008] WASCA 252 Inglis v Pinch [2016] WASC 30; (2015) 256 A Crim R 502 Lewsam v State of Western Australia [2016] WASCA 60 Marich v WA Police [2024] WASC 173 Neach v Hobbs [2021] WASC 135 Rossi v State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 -- 2 of 15 -- [2026] WASC 312 Page 3 Schaper v State of Western Australia [2010] WASCA 178; (2010) 203 A Crim R 270 YDN v State of Western Australia [2018] WASCA 62 -- 3 of 15 -- [2026] WASC 312 COBBY J Page 4 COBBY J: 1 The appellant appeals against the sentence imposed on him following his plea of guilty to 13 counts of supplying indecent or obscene articles and two counts of possessing indecent or obscene articles contrary to s 59(1)(b) and s 59(5) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (Act) respectively, on the grounds that: (a) the sentence infringed the first limb of the totality principle (ground 1); and (b) the sentencing magistrate failed to have regard to the appellant's early indication that he would plead guilty (ground 2). 2 The learned magistrate imposed a global fine of $50,000 in respect of all 15 offences. The learned magistrate's reasons did not disclose how that figure was derived. 3 For the reasons set out below, I have determined: (a) to grant leave to appeal in respect of ground 2, and allow the appeal on that ground; (b) that the appellant should be resentenced by this court; (c) that it is unnecessary to determine the first ground of appeal; and (d) that the appellant should be fined a total of $25,500 in respect of the offences. Application to adduce additional evidence 4 The appellant sought leave to adduce an affidavit of his solicitor, James Jackson, sworn 4 June 2026 in support of the appeal. The affidavit attaches the transcripts of mention hearings in the Magistrates Court on 10 February and 7 July 2025, the transcript of his sentencing in the District Court of Western Australia on 12 August 2025 in relation to child exploitation material found in his possession at the same time as the material giving rise to the offences the subject of this appeal, and sentencing materials filed in those District Court proceedings. -- 4 of 15 -- [2026] WASC 312 COBBY J Page 5 5 Although I must decide the appeal on the evidence and materials that were before the learned magistrate,1 I may admit any other evidence for the purposes of dealing with the appeal.2 6 The transcripts of the mention hearings are relevant to the determination of ground 2, and the transcript of the appellant's sentencing in the District Court provides information regarding the appellant's circumstances relevant to the resentencing exercise. 7 As the respondent does not oppose the admission of the affidavit and its attachments and they are relevant to the determination of the appeal, the appellant has leave to adduce the affidavit. Leave to Appeal 8 The appellant was charged: (a) on 28 October 2024, with two counts of possession of indecent or obscene articles, contrary to s 59(5) of the Act; and (b) on 15 November 2024, with 13 counts of supplying indecent or obscene articles contrary to s 59(1)(b) of the Act. 9 The respondent concedes that the sentencing magistrate made a material error of fact and law and that leave to appeal should be granted in relation to ground 2. I accept that concession is properly made. 10 On 10 February 2025 the appellant indicated through his counsel at the second mention hearing that he would plead guilty to the charges. The matter was adjourned to 7 July 2025 to allow related charges in the District Court to progress. 11 On 7 July 2025, counsel for the appellant stated that the appellant could enter pleas to the charges that day, but suggested that the charges be adjourned for about 3 months for sentencing, on the basis that the appellant would be sentenced in the District Court on the related charges in the meantime. As a result, the learned magistrate did not require that the appellant plead, and adjourned the matter to 1 October 2025 on the basis that pleas would be entered on that date. 12 There were two further adjournments on 1 and 29 October 2025, the appellant's counsel not being present. 1 s 39(1), Criminal Appeals Act 2004 (WA). 2 s 39(3) and s 40(1)(e), Criminal Appeals Act. -- 5 of 15 -- [2026] WASC 312 COBBY J Page 6 13 The appellant entered guilty pleas to all charges on 5 November 2025, and the matter immediately proceeded to sentencing. 14 The court was informed by the prosecutor that the two charges of possession related to an Apple iPad and iPhone located at the appellant's address, each of which contained multiple videos of adult men engaging in sexual acts with horses, ponies, chickens and dogs. There was no indication of the number of videos, nor whether there was any duplication of the videos on the two devices. 15 In relation to the 13 charges of supply, the court was told that the appellant: (a) between 14 and 28 October 2024 sent 22 videos containing bestiality material: six videos of men having sexual intercourse with horses; 14 of sexual intercourse with dogs; one of sexual intercourse with a pig; and one of sexual intercourse with a pony (charge PE 64256/2024); (b) between 22 and 27 October 2024, supplied three videos of men having sexual intercourse with horses; 14 videos of men having sexual intercourse with dogs; one with a pig, and one with a cow (charge PE 64257/2024); (c) between 23 and 28 October 2024 supplied five videos of men having sexual intercourse with horses; 10 videos of men having sexual intercourse with dogs; one video of men having sexual intercourse with a pig; two videos of sexual intercourse with cows; and one video of sexual intercourse with a chicken (charge PE 64258/2024); (d) between 24 and 25 October 2024, sent six videos of men having sexual intercourse with horses; eight of sexual intercourse with dogs; and one with a chicken (charge PE 64259/2024); (e) between 25 and 28 October 2024, sent eight videos of men engaged in sexual intercourse with horses; 10 involving sexual intercourse with dogs, 'one of a dog from being sexually offended against [sic]'; two videos of men having sexual intercourse with cows; and one of a man having sexual intercourse with a chicken (charge PE 64260/2024); (f) on 26 October 2024, sent three videos of sexual intercourse with a horse; 19 videos of men having sexual intercourse with a dog; -- 6 of 15 -- [2026] WASC 312 COBBY J Page 7 four videos of men having sexual intercourse with cows, and one of sexual intercourse with a chicken (charge PE 64261/2024); (g) on 26 October 2024, sent five videos of men having sexual intercourse with dogs (charge PE 64262/2024); (h) between 26 and 28 October 2024, sent three videos of sexual intercourse with horses; five videos of men having sexual intercourse with dogs; and one video of a man having sexual intercourse with a chicken (charge PE 64263/2024); (i) between 27 and 28 October 2024, sent eight videos of men having sexual intercourse with horses and 13 videos of men having sexual intercourse with dogs (charge PE 64264/2024); (j) between 27 and 28 October 2024, sent five videos of men having sexual intercourse with horses, and eight videos of men having sexual intercourse with dogs (charge PE 64265/2024); (k) between 27 and 28 October 2024, sent eight videos containing men having sex with horses (charge PE 64266/2024); (l) on 28 October 2024, sent two videos of men having sexual intercourse with horses, and two of men having sexual intercourse with dogs (charge PE 64267/2024); and (m) on 28 October 2024, sent five videos of men having sexual intercourse with horses, and three images of men having sexual intercourse with dogs (charge PE 64268/2024). 16 The learned magistrate heard submissions from counsel for the appellant, and proceeded to impose a global fine of $50,000 in relation to all 15 charges. In the course of her sentencing remarks, the learned magistrate stated that 'there was no early plea in this case, so there's no discount on that basis'. 17 The respondent concedes that the learned magistrate made an error in fact and law in finding that the appellant was not entitled to any discount to his sentence due to him not entering an early guilty plea. Further, the respondent concedes that the error is material, as it could have made a difference to the sentence that was otherwise imposed. 18 An indication that an accused will plead guilty may lead to a similar discount as an accused who pleads guilty on the first available -- 7 of 15 -- [2026] WASC 312 COBBY J Page 8 occasion, where the indicated plea is sufficiently unequivocal to allow the prosecution to rely upon it to avoid incurring further costs. Where, however, an accused fails to enter a plea at the next hearing after the indicated plea is made, less weight may be given to the earlier indication.3 19 A plea at the earliest opportunity will ordinarily result in a reduction in sentence. Although s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act) only applies to sentences of imprisonment,4 a plea of guilty is a mitigating factor in an offence punishable only by fine, and as a matter of practice the court will often apply a similar discount to that available under s 9AA of the Sentencing Act.5 20 The court is not obliged, however, to give a discount of 25%. For example, a guilty plea at the first reasonable opportunity may result in a discount of less than 25% where a prosecution case is particularly strong.6 21 As I have said, the respondent's concessions were rightly made. In this case, the appellant clearly indicated at an early stage that he would plead guilty. There was no suggestion that the appellant intended to enter anything other than a guilty plea to all of the charges against him, and there was no apparent prejudice to the prosecution by the delay in those pleas not being taken until 5 November 2025. 22 As the respondent acknowledged, the learned magistrate therefore erred in fact, in overlooking that the appellant had previously stated that he would plead guilty, and in law, because the learned magistrate failed to give consideration to whether the appellant should receive a discount as a consequence of indicating at an early stage that he would plead guilty. 23 The court must not grant leave in respect of a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.7 A ground will have a reasonable prospect of success in this sense if it has 'a rational and logical prospect of succeeding; that is, 3 Rossi v State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [66]. 4 Inglis v Pinch [2016] WASC 30; (2015) 256 A Crim R 502 [50] - [52]; Neach v Hobbs [2021] WASC 135 [24]; Cooke v Ritchie [2023] WASC 45 [50]. 5 Inglis [53], [55] - [58], [70]. 6 Beins v State of Western Australia [No 2] [2014] WASCA 54 [58]. 7 s 9(2), Criminal Appeals Act. -- 8 of 15 -- [2026] WASC 312 COBBY J Page 9 it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success'.8 24 Section 14(2) of the Criminal Appeals Act provides that the court may dismiss an appeal, where a ground of appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred. 25 In Neach v Hobbs,9 Archer J, having referred to Fiannaca J's summary in Crocker v Vinicombe10 of the different views which have been expressed as to the proper approach to sentence appeals from the Magistrates Court, formulated the approach to be taken as follows: (a) if the error could not have made a difference to the sentence imposed, the appeal should be dismissed; (b) if the error could have made a difference to the sentence, the appellate court should consider the sentencing discretion afresh. If the appellate court would not impose a lesser penalty, there will have been no substantial miscarriage of justice and the court may dismiss the appeal pursuant to s 14(2).11 26 I am satisfied that the court's failure to consider whether there should be a reduction in sentence following the appellant's early indication that he would plead guilty to all charges against him may well have made a difference to the sentence imposed. Had the learned magistrate had regard to the indicated pleas of guilty, it would seem inevitable that the learned magistrate would have imposed a lesser sentence than that actually imposed. 27 I accordingly proceed to consider whether there has been a substantial miscarriage of justice. 28 The maximum penalty for a contravention of s 59(1)(b) of the Act is $10,000. The maximum penalty for contravention of s 59(5) is $5,000. 29 The maximum penalty which the appellant might have received was therefore $140,000. 8 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. 9 Neach. 10 Crocker v Vinicombe [2019] WASC 416 [42] - [60]. 11 Neach [17] - [22]. See also Marich v WA Police [2024] WASC 173 [67]. -- 9 of 15 -- [2026] WASC 312 COBBY J Page 10 30 The information that was before the learned magistrate was limited. In relation to the charges pursuant to s 59(1)(b), her Honour was not told whether the appellant had supplied the material to one or more individuals, nor whether the files supplied to any one or more persons were duplicates of those supplied to others, such that it is difficult to assess the true extent of the appellant's offending. Although the charges related to the supply of 189 video files, the descriptions of the files provided to the learned magistrate suggest that the number of files possessed by the appellant may have been substantially less, if he supplied copies of the same files to more than one person. 31 There was no indication of how many files were located on the appellant's iPad and iPhone. Counsel for the parties were unable to address that matter on the hearing of the appeal. 32 Neither counsel submitted that it is possible to discern a customary range of sentence for either of the offences with which the appellant was charged. Counsel for the respondent helpfully identified sentences for possession offences contrary to s 59(5) considered or referred to without adverse comment by the Court of Appeal as having ranged from $500 to $2,400 over the years 2008 to 2018.12 All but one case appears to have concerned a single article, and each case involved a single charge of possession in conjunction with more serious offences involving child exploitation material and/or sexual offending against children. 33 In Dragon v State of Western Australia, on resentencing the offender was fined $2,400 in respect of the possession of two images of adult females engaged in bestiality in conjunction with two counts of possessing child exploitation material, a suspended term of imprisonment having been mistakenly imposed at first instance following a plea of guilty. 34 In my opinion, the primary sentencing considerations in respect of contraventions of both s 59(1)(b) and s 59(5) are punishment, general deterrence and personal deterrence. As with child exploitation material, the production of material depicting bestiality requires a market, and the possession and dissemination of such material therefore encourage its production. The rationale underlying the offences created by 12 See Dragon v State of Western Australia [2008] WASCA 252 [76]; Schaper v State of Western Australia [2010] WASCA 178; (2010) 203 A Crim R 270 [14]; Dartnall v State of Western Australia [2012] WASCA 251 [8]; Lewsam v State of Western Australia [2016] WASCA 60 [25] and YDN v State of Western Australia [2018] WASCA 62 [6]. -- 10 of 15 -- [2026] WASC 312 COBBY J Page 11 s 59(1)(b) and (5), insofar as they apply to material depicting bestiality, is the prevention of harm to animals and the degradation of those involved in the production of the material. 35 The appellant's offending, including the offending for which he was sentenced in the District Court, took place over a period of two weeks. There was no suggestion that the appellant had engaged in his conduct for commercial reward. 36 However, having regard to the number of files supplied and that they were supplied to as many as 13 people, his offending must be regarded as substantial, as was conceded by his counsel before the learned magistrate. 37 Further, his offending ended when the police searched his house and seized his devices. This was not a case where the appellant voluntarily ceased his activities. 38 The appellant's offending was therefore serious, although I consider that it was not at the top end of the scale. In particular, I note that the offences created by s 59(1)(b) extend to the sale of indecent or obscene articles. 39 The appellant was 48 years of age at the time the offences were committed. He identified the following personal circumstances and mitigation factors which it was submitted should reduce the sentence to be imposed: (a) his lack of a criminal record in Australia and prior good character; (b) his early indicative plea of guilty; (c) his personal circumstances at the time of the offending, including personal medical issues and traumatic events affecting his husband; (d) his attempts at rehabilitation, including voluntarily engaging in counselling; (e) the sentence of 16 months imprisonment imposed by the District Court for his possession of child exploitation material; and -- 11 of 15 -- [2026] WASC 312 COBBY J Page 12 (f) his lack of means to pay a fine, having regard to his imprisonment and difficulties finding employment following his release. 40 It is common ground that he had no relevant criminal record and was of previous good character prior to his offending. 41 At the time of his offending the appellant had been diagnosed with prostate cancer. He underwent prostate surgery on 18 October 2024, in the midst of his period of offending, and experienced a number of serious health consequences following that treatment. 42 It was said that the appellant was under significant stress at the time due to his cancer diagnosis, his husband undergoing substantial stress in connection with seeking compensation for child sexual abuse following his discovery that the person who had offended against him (the husband) was still alive, and the death of his dog. 43 The appellant came into contact with the child exploitation and bestiality material in the course of seeking information on the internet regarding his prostate condition. It was submitted that the appellant engaged in the possession and distribution of the material found in his possession because he experienced an adrenaline rush from obtaining, viewing and distributing the material, rather than any sexual interest in what it depicted, as well as a feeling of control derived from being able to hide the material from his husband. 44 A clinical psychologist's report provided for the purposes of the appellant's sentencing in the District Court, which was not before the leaned magistrate and addressed only the child exploitation material, attributed the appellant's behaviour to the compounding effect of multiple life stressors, together with mental health decline associated with accommodating the complex needs of his partner. 45 Although the appellant sought treatment in relation to the child exploitation material, there is no express mention of his having done so in relation to the bestiality material. I accept, however, that the causes of his conduct are likely to have been the same. 46 At the time he was sentenced by the learned magistrate, the appellant was serving the term of imprisonment imposed by the District Court in respect of the child exploitation material. -- 12 of 15 -- [2026] WASC 312 COBBY J Page 13 47 The appellant was unemployed as at the date of the appeal. There was no evidence as to his ability to pay any fine. 48 In BSA v State of Western Australia,13 the Court of Appeal stated: When sentencing an offender for more than one offence, a sentencing judge is required to determine an appropriate sentence for each offence (including any discounts for an offender's guilty pleas and cooperation with authorities) before proceeding to consider questions of cumulation, concurrency and totality. The total effective sentence must be commensurate with the circumstances of the offending as a whole, the offender's personal circumstances and all relevant sentencing factors. 49 Having regard to the lack of evidence of attempting to gain commercial reward, the short period of time over which the offending occurred and the evidence that the offending was an aberration on the part of the appellant unrelated to sexual motivation, a fine of $3,000 should be imposed in respect of each of the s 59(1)(b) offences involving the supply of 10 or more videos, and $2,000 in each case where the number of videos supplied was less than ten. 50 The total fines imposed in respect of the supply offences is therefore $34,000. I would discount each of the fines by 25% to reflect the appellant's early indication that he would plead guilty to the charges, so that the total fines imposed in respect of those offences is $25,500. 51 Turning to the two possession charges, I consider that offending, having regard to its timing and that the files in relation to which the appellant was charged appear to have comprised or at least included the same files as those in respect of which he was charged with supply, should be regarded as involving the same criminality as the supply offences contrary to s 59(1)(b). Having regard to the totality principle, I would not impose a separate penalty in relation to the two possession charges. 52 I accordingly consider that a substantial miscarriage of justice occurred, that the appeal should therefore be allowed on ground 2 and the appellant resentenced by this Court. 53 Having determined that ground 2 should be allowed, it is unnecessary to consider ground 1. 54 For these reasons, I will: 13 BSA v State of Western Australia [2025] WASCA 31 [37]. -- 13 of 15 -- [2026] WASC 312 COBBY J Page 14 (a) grant leave to appeal on ground 2; (b) allow the appeal in respect to ground 2; (c) set aside the penalty imposed by the learned magistrate on 5 November 2025; and (d) instead, impose fines totalling $25,500, as follows: Charge Fine Imposed PE 64256/2024 $2,250.00 PE 64257/2024 $2,250.00 PE 64258/2024 $2,250.00 PE 64259/2024 $2,250.00 PE 64260/2024 $2,250.00 PE 64261/2024 $2,250.00 PE 64262/2024 $1,500.00 PE 64263/2024 $1,500.00 PE 64264/2024 $2,250.00 PE 64265/2024 $2,250.00 PE 64266/2024 $1,500.00 PE 64267/2024 $1,500.00 PE 64268/2024 $1,500.00 PE 60032/2024 $0.00 PE 60033/2024 $0.00 Total $25,500.00 -- 14 of 15 -- [2026] WASC 312 COBBY J Page 15 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RH Associate to the Hon Justice Cobby 31 JULY 2026 -- 15 of 15 --