Ackley v The State of Western Australia

[2013] WASCA 199

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ACKLEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 199

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   24 JULY 2013

DELIVERED          :   26 AUGUST 2013

FILE NO/S:   CACR 65 of 2013

CACR 81 of 2013

BETWEEN:   CHRISTOPHER BRIAN ACKLEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :DEANE DCJ

File No  :IND GER 66 of 2011

Catchwords:

Criminal law - Applications for leave to appeal against conviction and sentence - Unlawful detention - Threat to kill - Sexual penetration without consent - Inconsistent verdicts - Defence of consent - Manifest excess - Totality - Whether error in categorisation of offending as 'extremely serious' - Turns on own facts

Legislation:

Criminal Code (WA), s 325, s 326, s 333, s 338B

Result:

Applications for leave to appeal dismissed
Appeals dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     NR Barber Legal

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Clarke v The State of Western Australia [2013] WASCA 67

Juma v The State of Western Australia [2011] WASCA 54

Lindsay v The State of Western Australia [2010] WASCA 142

MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348

PAS v The State of Western Australia [2009] WASCA 210

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

The State of Western Australia v Turaga [2006] WASCA 199

THG v The State of Western Australia [2012] WASCA 139

Ugle v The State of Western Australia [2012] WASCA 104

1. McLURE P:  This is an application for leave to appeal against conviction and an application for leave to appeal against sentence.

2. The appellant was convicted after trial of one count of unlawfully detaining AL (the complainant) contrary to s 333 of the Criminal Code (WA) (the Code) (count 1), one count of making a threat to unlawfully kill the complainant contrary to s 338B of the Code (count 2), four counts of sexual penetration contrary to s 325 of the Code (counts 3, 4, 5 and 6) and one count of aggravated sexual penetration contrary to s 326 of the Code (count 7). The circumstance of aggravation was that the appellant did an act which was likely to seriously and substantially degrade the complainant.

3. The appellant was acquitted on two counts (8 and 9) of sexual penetration of the complainant.

4. On 8 March 2013, Deane DCJ sentenced the appellant to 12 months' imprisonment on each of counts 1 and 2, 3 years 6 months' imprisonment on each of counts 3, 5 and 6, 2 years 6 months' imprisonment on count 4 and 5 years 6 months' imprisonment on count 7.  The sentences on counts 1 and 2 were ordered to be served concurrently with each other but cumulatively on the sentences for counts 3 and 7, with the balance of the sentences to be served concurrently, resulting in a total sentence of 10 years' imprisonment.

Appeal against conviction

1. The appellant claims that the verdicts of the jury are unreasonable and cannot be supported by the evidence (ground 1) and that the trial judge erred by failing to direct the jury as to the possible defence of consent on counts 3, 4 and 5 (ground 2).

2. It is necessary to summarise the evidence at trial.  The case for the prosecution was as follows.  The complainant arrived in Australia from Germany on a working holiday in March 2010.  She and her then boyfriend obtained employment in Geraldton where she met the appellant.  Around Christmas 2010 the complainant returned to Germany to see her family.  She kept in touch with the appellant via facebook and text messages.  The complainant returned to Australia in March 2011, by which time her relationship with her boyfriend had come to an end.  The appellant collected the complainant from Perth and in company with the appellant's brother and another person, Mr Ryan Bradley, drove to a music festival where Mr Bradley was dropped off, and then continued on to Mandurah.  The complainant stayed with the appellant and his uncle in Mandurah for at least two nights.  The appellant and the complainant had consensual sexual intercourse on two occasions in that period.

3. The appellant and the complainant then drove to Geraldton, collecting Mr Bradley on the way.  During the next week, the appellant and the complainant house‑sat the home of the appellant's brother.  At the end of the week, the appellant returned to his home in Geraldton.  The complainant stayed at the appellant's home.  They had consensual sex on two occasions at his home.  The complainant's evidence was that the appellant persistently asked the complainant to have sex with him and would become upset and angry when she refused.  She denied ever informing the appellant that she would be happy to be in a relationship with him.

4. When driving from Mandurah to Geraldton, it became apparent that the complainant and Mr Bradley had a common interest in kitesurfing.  On occasions she and Mr Bradley went kitesurfing together in Geraldton.  This caused the appellant to become jealous.  On one occasion the appellant became upset on the complainant's return home following dinner with Mr Bradley after kitesurfing.  The complainant was frightened by the appellant's reaction and rang Mr Bradley to obtain the contact details of the appellant's brother to ask him to intervene in the situation.  Whilst on the telephone, Mr Bradley heard the argument with the appellant.  Mr Bradley went to the appellant's home.  The appellant went into the garden to meet Mr Bradley and told him to cease contact with the complainant.  She tried to defuse the situation which caused the appellant to tell the complainant to leave the house.  As she was packing, the appellant changed his mind and said that if she left, the appellant and his friends would hurt Mr Bradley.  The appellant punched the window of Mr Bradley's vehicle before he drove off.  The complainant's evidence was that the appellant was jealous and unreasonable in his attitude towards her friendship with Mr Bradley. 

5. On 31 March 2011 when the complainant and Mr Bradley were having dinner together, she received 20 or 30 calls or texts from the appellant asking why she was having dinner with Mr Bradley not the appellant.  The appellant was abusive in his communications.  Later that evening the appellant became angry with the complainant because she had spent time with Mr Bradley and because she refused his requests for sex.  The next morning when the complainant awoke, the appellant was sleeping on the floor next to her bed.  After persistent questioning from the appellant as to whether the complainant had slept with Mr Bradley she told him that she had done so the night before.

6. On 1 April 2011, the complainant requested Mr Bradley to drop her kitesurfing harness, which she had left in his car, over the fence at the appellant's home to avoid him coming into contact with the appellant.  However the appellant became aware of the arrangement and went outside.  The complainant heard smashing noises in the garden and when the appellant returned into the house he had blood on his hand and told the complainant he had just hit Mr Bradley because he had come between the appellant and the complainant.

7. The following day (2 April), the complainant, the appellant and others were proposing to attend a party in Geraldton.  Just before leaving for the party, the complainant rang Mr Bradley to check on his welfare.  During the call, the appellant came into the bedroom, overheard part of the conversation which angered him and he smashed her telephone.

8. Prior to going to the party the appellant had consumed alcohol to the point where he was unable to drive.  The appellant, the complainant and two friends caught a taxi from the appellant's house to the party.  After the party, the same four walked back to the appellant's house in the early hours of the following morning (3 April).  On that journey the appellant was behaving aggressively and threatened to go and find Mr Bradley and punch him because he had come between the appellant and the complainant.

9. After the group had arrived back at the appellant's house, and after the two friends had left, the appellant was still behaving in an angry and aggressive manner.  The complainant attempted to leave the house but was stopped by the appellant who pushed her away from the locked back door, causing her to fall on the floor.  The complainant wanted to leave the house and go to a female friend's house.  The appellant refused to let her leave and took her mobile telephone from her.  This unlawful detention was count 1 on the indictment.  The complainant made repeated pleas to the appellant during the course of the night to let her leave. 

10. Shortly after first detaining the complainant and while she was on the floor crying, the appellant produced a knife and held it in front of the complainant's face.  The appellant told the complainant she was not going to leave and not to try anything stupid otherwise he would kill her.  These were the circumstances of count 2. 

11. The complainant told the appellant that she did not want to have sex with him.   He pulled her through various rooms of the house and despite her attempts to fight him off, she was eventually on the bed, naked.  The appellant rubbed lubricant or gel on and inside the complainant's vagina.  The appellant grabbed the complainant by the throat which caused her to have difficulty breathing. 

12. The appellant sexually penetrated the complainant's vagina with his penis, despite her resistance.  The complainant scratched the appellant's back, chest and arms.  She lost consciousness during intercourse and when she woke the appellant was still having sex with her (count 3).

13. The appellant then pushed the complainant towards the bathroom and forced her to have a shower to get rid of the skin under her fingernails.  Count 4 occurred while the complainant was in the shower.  The appellant inserted his fingers into her vagina and washed it.

14. The appellant then pushed the complainant back onto the bed.  He once again applied lubricant and penetrated the complainant's vagina with his penis against her will.  The complainant screamed and the appellant grabbed her throat.  This was the subject of count 5.

15. The appellant directed the complainant to have another shower.  She did.  Back in the bedroom, the appellant said he was going to have sex with her again.  She was feeling dizzy and frightened.  Against her will, the appellant again penetrated the complainant's vagina with his penis (count 6). 

16. Later the complainant refused the appellant's request to perform oral sex on him.  She was trying to fight the appellant off when he again inserted his penis into her vagina.  On this occasion the appellant put a pillow over the face of the complainant so she would stop screaming.  The appellant removed semen from the complainant's vagina and rubbed it on the complainant's face and breasts.  This was count 7 and the circumstance of aggravation.

17. The circumstances relating to counts 8 and 9 can be summarised as follows.  Sometime after count 7, the appellant directed the complainant to sit on the couch in the lounge and indicated that he needed to get some rest and some sleep.  The appellant lay on the couch, with the top of his head on the complainant's lap, and held her arm firmly so she could not run away.  At one stage she tried to get up and leave but the appellant awoke and told her not to try anything stupid or he would kill her.  The appellant went to sleep again.  Some time later the appellant awoke and told her that he had found a solution.  He grabbed a Bible sitting near the fireplace and took the complainant to the bedroom, telling her to sit on the mattress.  The appellant sat on the floor and removed a necklace with a cross on it from around his neck.  The Bible was in his hand, and he placed the cross and the necklace around the complainant's neck.  The appellant made an apology of sorts and said he was going to kill himself.  He then removed the necklace and placed it back on his neck, giving the Bible a kiss. 

18. The appellant refused the complainant's request to leave the house, saying he was going to have sex with her again.  He grabbed a picture of the complainant's family from a nearby wall and put it on her chest.  He then rubbed gel on and in the complainant's vagina and penetrated her vagina with his penis without her consent.  She also gave evidence that he attempted anal penetration, which was not a charge on the indictment.

19. The complainant tried to escape but the appellant grabbed her and pulled her back onto the mattress.  The appellant again had sexual intercourse with the complainant without her consent (count 9).

20. Following count 9, the complainant was able to escape the house.  She ran down the street towards a nearby hospital.  The complainant, who was screaming, managed to get a passing vehicle to stop.  The vehicle was driven by a Mr Hipper who took the complainant to his house and called the police.  The complainant spoke to the operator.  Mr Hipper drove the complainant back to the vicinity of the appellant's home and waited with her until police arrived.

21. Mr Hipper gave evidence that the complainant was running across the road and waving her arms.  He knew that something was wrong and so he stopped his car.  The complainant was hyperventilating to the point where she could not talk and he formed the view that she was very obviously distressed.  The complainant told Mr Hipper that the appellant had tried to kill her and that he had put his hand around her neck.  Mr Hipper said he looked at the complainant's neck and on the right side just below the jaw line he saw some red marks and the impression of what he thought were two fingerprint marks.  He said the red marks were about 10 cm long.  The complainant was shaking all over and distressed.  She also told Mr Hipper that she had been raped.

22. Later the same day (3 April), the complainant was examined by a medical practitioner, Dr Anderson, who also gave evidence.  The doctor said that at the time of her examination there were no signs of trauma or physical assault around the complainant's neck but that she had multiple superficial bruising in the inner aspect of her thighs.  The complainant told the doctor that she was vaginally penetrated four times but did not disclose any attempted anal penetration.  Dr Anderson and two police officers who saw the complainant on the day of the offences also gave evidence that the complainant was distressed.

23. Mr Bradley gave evidence of an occasion when he dropped the complainant at the appellant's home when the appellant was angry and worked up and had a go at Mr Bradley for trying to move in on the complainant.  As he was about to leave, the accused punched Mr Bradley's car as he was reversing and swung on the car door, bending it.

24. Mr Bradley also gave evidence of dropping off the complainant's kitesurfing gear at the appellant's home.  He went to the back of the house and the appellant came out.  As Mr Bradley was putting the gear down, the appellant hit him in the face, pushing a tooth backwards.  The appellant was jealous and angry that Mr Bradley was having contact with the complainant.  Mr Bradley was walking out to his car when the appellant came from behind and again punched Mr Bradley in the face, this time causing one of his bottom teeth to go through his lip.  Later the appellant telephoned Mr Bradley and told him not to think about going to the police about the assault.

25. Police attended at the appellant's home on the morning of 3 April 2011.  A series of photographs taken of the appellant showed various scratch marks and markings on his body.

26. The appellant gave evidence.  He denied all of the offences with which he was charged.  He admitted assaulting Mr Bradley on the occasion he returned the complainant's kitesurfing gear.  He said he was angry with Mr Bradley because the complainant had informed the appellant that Mr Bradley had 'forced himself upon her' sexually.  That was denied by both the complainant and Mr Bradley.

27. The appellant's evidence was that some time after his two friends left the house on 3 April 2011, he was in bed with the complainant and they had consensual sexual intercourse.  After having a shower and sitting on the couch in the lounge room, they went back to bed and started to have consensual sex for a second time that evening when the complainant asked the appellant to tie her up.  He refused, saying he was not into that sort of thing.  He said she had not asked him to do that type of thing before.  In the course of sexual intercourse, the complainant used her hands and nails to scratch his back, shoulders and triceps and she requested that he put his hands around her neck.  He said he was uncomfortable with that request so the complainant grabbed his left hand and placed it on her neck area and pushed it down before he removed his hand. 

28. The appellant's father gave evidence that on 2 April 2011 the complainant had, in the appellant's presence, confirmed that Mr Bradley had 'forced himself on her'.  The complainant denied the appellant's and his father's version of events.

Ground 1 - inconsistency

1. The appellant contends it was not open to the jury to find the appellant guilty of the first seven counts on the indictment and not guilty of the last two counts.  The appellant claims the guilty verdicts are factually (not legally) inconsistent.  Thus the appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion:  MacKenzie v The Queen (1996) 190 CLR 348, 366. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367).  In essence, the question is whether the different verdicts in the case represent an affront to logic and common sense.

2. Where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts do not necessarily reflect the view that the complainant was untruthful or unreliable or reflect a want of confidence in the evidence of the complainant.  A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility.  Further, verdicts might be explicable on the basis that one or more of them is merciful or that they accord with the jurors' innate sense of fairness and justice:  MacKenzie (367); Phillips v The Queen (2006) 225 CLR 303 [71].

3. The significance of the verdicts of not guilty must be considered not only by reference to the facts and circumstances of each case but also in the context of the directions given by the trial judge.  At the commencement of the trial and at the commencement of the summing up, the trial judge gave the standard direction concerning separate charges.  She told the jury it was not a 'job lot' and that a particular verdict in relation to one or more charges did not necessarily mean that 'you would reach the same verdict in relation to the remaining charges' (ts 789).

4. The not guilty verdicts on counts 8 and 9 reflect a very cautious approach by the jury to the discharge of its responsibilities.  The jury must have rejected the evidence for the defence.  The appellant's evidence was so obviously contrived to meet the evidence of Mr Hipper, which was capable of corroborating the complainant's evidence, and the scratch and other marks on his body.  The verdicts are not inconsistent, having regard to the following matters.  First, the two offences the subject of counts 8 and 9 were separated in time from the seven offences of which the appellant was convicted.  They occurred, on the complainant's evidence, after the appellant had been asleep for some time.  Second, the police evidence established that when they attended at the appellant's home, the Bible was on the shelf above the fireplace, covered in part by some other items, and the family photograph of which the complainant gave evidence was on the wall in the bedroom.  Third, Dr Anderson gave evidence that the complainant told her she was vaginally penetrated four times and had not mentioned the attempted anal penetration.  These matters enable the verdicts to be reconciled.  Ground 1 has no reasonable prospect of success and leave to appeal should be refused.

Ground 2 - defence of consent

1. The appellant contends that the trial judge erred by failing to direct the jury as to the possible defence of consent on counts 3, 4 and 5.

2. As conceded on behalf of the appellant, he did not at trial rely on the defence of consent to any of the sexual assault counts and did not seek a redirection.  He gave evidence of consensual sexual intercourse (but not digital penetration the subject of count 4) some time during the period in which the offences of which the complainant gave evidence occurred.

3. The trial judge accurately captured the live issues at trial.  She said:

   Now, each of these sexual penetrations are alleged to have occurred without the consent of the complainant, and that is another element that the State must prove.  The concept of consent, or more particularly and properly, lack of consent, does not loom particularly large in this trial, because of course the accused says that none of the alleged acts of sexual penetration on the indictment occurred in the first place.

   Rather, he says that there were two other acts of sexual penetration, or sexual intercourse between him and the complainant that night after the party, which were entirely consensual, and of course, they are not the subject of any charge on the indictment.  And the complainant denies that they occurred (ts 799) (emphasis added).

4. The trial judge returned to this point later in her summing up.  She said:

   [The appellant] maintained that the only sexual contact between them was entirely consensual and occurred on two occasions that night in the bed in his room with the complainant being an active and enthusiastic participant in the sexual intercourse (ts 848).

5. As an afterthought, it is now put on behalf of the appellant in the appeal that the appellant's evidence that he and the complainant engaged in consensual sexual intercourse (with a shower in between) is broadly analogous to counts 3, 4 and 5.  The claim is without merit.  The sexual assault offences the subject of counts 3, 4 and 5 cannot be divorced from the circumstances of violence immediately before and during the sexual assaults.  The appellant's evidence was totally inconsistent with, rather than a defence to, the offences with which he had been charged.  This ground has no reasonable prospect of success and leave to appeal must be refused.

Appeal against sentence

1. The appellant relies on three grounds.  He claims that the sentence on count 7 is manifestly excessive (ground 1); that the total sentence infringes the first limb of the totality principle (ground 2); and that the sentencing judge erred in categorising the offending as 'extremely serious' (ground 3). 

2. The appellant was convicted after a 10‑day trial at Perth in November 2012.  That was his second trial.  His first trial was in Geraldton in May 2012.  On the fifth day of that trial, the appellant refused to answer his bail.  He absconded interstate and the trial was aborted.  The appellant was apprehended on a bench warrant and returned to Western Australia.

3. The appellant was aged 27 at the time of the offending. He finished school part way through Year 12 and had been consistently employed since that time.  The appellant's mother died when he was aged 12 and he and his siblings were raised by their father.  He had problematic use of cannabis and amphetamines until he obtained work in the mining industry when he was aged around 23. 

4. At no stage has the appellant accepted any responsibility for the offending, maintaining his denial and continuing with his claim that the complainant fabricated her allegations.  The appellant exhibited no empathy, or remorse for his offending.  He was psychologically assessed as being at a high risk of reoffending. 

5. As noted by the sentencing judge, the appellant's past history of offending reflects violence and sexual offending against women.  In October 2005, he was fined $500 for common assault.  This related to an incident in a nightclub with a man unknown to the appellant.

6. In December 2007, the appellant was convicted of one count of grievous bodily harm in circumstances of aggravation for which he was sentenced to 2 years' imprisonment.  On the same date, the appellant was convicted of aggravated assault occasioning bodily harm for which he was sentenced to 6 months' imprisonment, concurrent.  The facts of the aggravated grievous bodily harm are relevant.  On the evening of 28 December 2004, the appellant and the 19‑year‑old complainant, with whom he was in a de facto relationship, had been drinking alcohol.  An argument ensued, and the appellant punched the complainant to the back of the head with a clenched fist and put his hands around her neck, choking her for a short period.  The appellant then let her go and walked to the other side of the room where he picked up a metal‑handled lock‑blade knife with a 15 cm blade.  The appellant threw the knife across the room where it struck the complainant to the left side of her head just above the ear.  The blade penetrated the complainant's skull and embedded into the brain tissue to a depth of 1.4 cm.

7. In July 2009, the appellant was convicted of aggravated indecent assault and imprisoned for 8 months.  On the same date the appellant was also convicted of one count of aggravated indecent assault for which he was sentenced to 4 months' imprisonment, cumulative.  The appellant and a co‑accused offered a lift to an intoxicated 21‑year‑old woman.  The complainant fell asleep in the car and was taken to a secluded beach car park where the appellant and his co‑accused intended to have sex with the complainant.  The appellant indecently assaulted the complainant.  She awoke and kicked out.  The appellant and his co‑accused drove off leaving the complainant stranded.

Ground 1 - manifest excess

1. In considering whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the circumstances of the offending and the offender's personal antecedents.  The appellant has to demonstrate that the sentence is unreasonable or unjust.

2. As stated by this court in The State of Western Australia v Turaga [2006] WASCA 199, there is no tariff for the offence of sexual penetration without consent. However, a sentence for a single act of penile penetration of the vagina without consent where the victim is over the age of 16 was (without regard to mitigating factors) in the range of 4 to 6 years [35]. Further, the maximum sentence for aggravated sexual penetration is 20 years' imprisonment (s 326 of the Code) whereas the maximum penalty for the offence without a circumstance of aggravation is 14 years (s 325).

3. In this case there are no mitigating circumstances and the appellant is assessed, having regard to his antecedents and other matters, as being at a high risk of reoffending.  I have had regard to the authorities relied on by the appellant being THG v The State of Western Australia [2012] WASCA 139, Clarke v The State of Western Australia [2013] WASCA 67, Ugle v The State of Western Australia [2012] WASCA 104, Juma v The State of Western Australia [2011] WASCA 54, Lindsay v The State of Western Australia [2010] WASCA 142 and PAS v The State of Western Australia [2009] WASCA 210.

4. A sentence of 5 years 6 months for the offence of aggravated sexual penetration is, having regard to all relevant sentencing factors, clearly consistent with sentences customarily imposed in this jurisdiction.  This ground has no reasonable prospect of success.  Leave to appeal must be refused.

Grounds 2 and 3 - totality and seriousness

1. The first limb of the totality principle requires a judge sentencing an offender for multiple offences to ensure that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality of the offending as a whole.

2. The appellant quarrels with the sentencing judge's characterisation of the seriousness of the offending.  She said:

   In sentencing you, the court must also take into account the gravity of your offending which overall is extremely serious as reflected in the penalties available for these charges upon conviction (ts 950).

3. She also described the offences as 'bad examples of violent sexual offending against a vulnerable and terrified young woman' (ts 950).

4. The appellant seeks to challenge the accuracy of the assessment by identifying the absence of other aggravating factors.  That is a fruitless

exercise.  The sentencing judge was not undertaking a comparative exercise but characterising the appellant's offending as a whole.  The assessments are well open on the evidence.  The offending was indeed very serious having regard to the nature and extent of the violence, physical and sexual, over an extended period.

1. The appellant has shown no empathy and no remorse and is assessed as being at a high risk of reoffending.  There are no mitigating circumstances.  It is the case that an offence is not aggravated by the fact that the offender pleaded not guilty to it.  However, the fact that the appellant put the complainant through two trials, necessitated by him absconding five days into the first trial, is an aggravating circumstance.  He caused an unnecessary and unjustifiable continuation of the ordeal which he inflicted on the complainant.  The total sentence is not, in all the circumstances, disproportionate.

2. Grounds 2 and 3 have no reasonable prospect of succeeding.  Leave to appeal must be refused.

Conclusion

1. Leave to appeal having been refused on all grounds, the appeal against conviction and the appeal against sentence must be dismissed.

2. BUSS JA:  I agree with McLure P.

3. MAZZA JA:  I agree with McLure P.