APC v The State of Western Australia
[2012] WASCA 159
•17 AUGUST 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: APC -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 159
CORAM: MARTIN CJ
PULLIN JA
MAZZA JA
HEARD: 14 FEBRUARY 2012
DELIVERED : 17 AUGUST 2012
FILE NO/S: CACR 74 of 2011
CACR 75 of 2011
BETWEEN: APC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 615 of 2010
Catchwords:
Criminal law - Appeal against conviction and sentence - Indecent dealing with lineal relative/child under 16 - Sexual penetration of a lineal relative/child under 16 - Encouraging lineal relative/child under 16 to engage in sexual behaviour - Unlawful detention
Threat to kill with intent to hinder - Attempt to procure lineal relative/child under 16 to engage in sexual behaviour - Whether trial judge failed to adequately direct jury about hearsay evidence - Whether trial judge erred by allowing evidence of uncharged acts - Whether total effective sentence breached the totality principle - Whether trial judge erred in finding no prospects of rehabilitation - Whether trial judge erred when he categorised offending to be in the worst category
Legislation:
Evidence Act 1906 (WA), s 36BD, s 31A(1), s 31A(2)(a), s 31A(2)(b)
Criminal Appeals Act 2004 (WA), s 30(3)(b), s 30(3)(c)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms L Petrusa
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Blum v The State of Western Australia [No 2] [2012] WASCA 40
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Director of Public Prosecutions v Boardman [1975] AC 421
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
GHS v The State of Western Australia [2006] WASCA 42
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
KC v The State of Western Australia [2008] WASCA 216
Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Makin v Attorney‑General (NSW) [1894] AC 57
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
Preston v The State of Western Australia [2012] WASCA 64
R v Ball [1911] AC 47
R v Soma [2003] HCA 13; (2003) 212 CLR 299
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Osborne [2007] WASCA 183
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wilson v The State of Western Australia [2010] WASCA 82
Wood v The State of Western Australia [2005] WASCA 179
MARTIN CJ: The appeal against conviction should be allowed for the reasons given by Mazza JA, with which I agree.
Had it been necessary to decide the appeal against sentence, I would have refused leave on each ground and dismissed the appeal for the reasons given by Mazza JA, with which I agree.
PULLIN JA: Ground 1 of the conviction appeal should be dismissed for the reasons given by Mazza JA. In my view, ground 2 in that appeal should also be dismissed. It is not necessary to recite the facts. They are set out in Mazza JA's reasons. The issue in ground 2 concerns s 31A of the Evidence Act 1906 (WA) which was introduced into that Act in 2004.
Before that time, in England in Director of Public Prosecutions v Boardman [1975] AC 421, the House of Lords had decided that the admissibility of propensity or similar fact evidence was to be determined by considering whether the prejudice to the accused was outweighed by the probative force of the evidence.
In Australia, in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 294, Mason CJ, Wilson and Gaudron JJ said that the basis for the admission of similar fact or propensity evidence lay in its possessing a particular probative value or cogency such that, if accepted, it bore no reasonable explanation other than the inculpation of the accused in the offence charged. This meant that if propensity evidence was to be admissible, the objective improbability of its having some innocent explanation must be such that there was no reasonable view of it other than as supporting an inference that the accused was guilty of the offence charged.
In Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, the plurality approved of what was said in Hoch. McHugh J dissented and said (528) ‑ (529):
If there is a real risk that the admission of such evidence may prejudice the fair trial of a criminal charge before the court, the interests of justice require the trial judge to make a value judgment not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
These cases reflected the struggle to reconcile two contradictory principles. The first principle was that it is not open to a prosecutor to 'adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried': Makin v Attorney‑General (NSW) [1894] AC 57, 65. The second, but contradictory principle, was that 'the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused': Makin (65).
The legislature in this State clearly considered that the court in Hoch and the plurality in Pfennig set the bar too high for prosecutors. In Wood v The State of Western Australia [2005] WASCA 179 [41] (Pullin JA) and in Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [108] (Roberts‑Smith JA, Wheeler JA agreeing), it was explained that s 31A(2) of the Evidence Act was based on an adoption of what was said by McHugh J in Pfennig.
Section 31A(2)(a) requires a trial judge to first determine whether the propensity evidence the prosecutor wishes to lead has probative value.
In sexual offence cases, evidence that a person had a propensity in the form of a sexual interest in young children (not only the complainant) is often led to help prove that the accused committed the charged offence. Propensity of an accused to commit an offence against a particular complainant has been acknowledged as being probative of a charged offence against the complainant for well over a century: see for example, R v Ball [1911] AC 47.
If evidence of propensity is probative, then why should it not be admitted without further ado? After all, much other evidence in a case is admitted or rejected merely by deciding whether or not it is relevant, ie probative.
The reason is because there is a recognition by the legislature and the courts that leading propensity evidence offends against the first of the fundamental principles referred to in [7] above. Because there is a recognition that this principle may be offended against, the legislature has put probative propensity evidence into a special category. It will not be admitted merely because it has probative value, it must be more than that. It must have 'significant' probative value. As Mazza JA points out in his reasons, the word 'significant' means 'important' or 'of consequence'. However, even that is not enough. McHugh J in Pfennig (528) explained why this is so:
Plainly, [such evidence] cannot be admitted merely because it has probative or even strong probative value. The risk of an unfair trial through the use of propensity reasoning is too great to allow such a low threshold of admissibility. Consequently ... as a matter of law and not discretion the probative value of the evidence must outweigh or transcend its prejudicial effect.
As a result, s 31A(2)(b) of the Evidence Act requires the court to consider whether the probative value of the evidence compared to the degree of risk of an unfair trial is such that 'fair‑minded' people would think that the 'public interest' in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
The difficulty then lies in carrying out this balancing exercise. As McHugh J pointed out in Pfennig, the prejudicial effect of evidence and its probative value are incommensurable. They have no standard of comparison. Nevertheless, once propensity evidence is held to have significant probative value, that is the task to be carried out. It is the task required by s 31A(2)(b). The reference to 'fair‑minded' people is a reference to reasonable members of the general public who are not lawyers, although the legislature must be taken to have assumed that such people would have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53]; Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [66]. The reference to 'public interest' is merely an acknowledgment that generally speaking, it is in the public interest in criminal trials that relevant evidence not the subject of some exclusionary rule should be admitted in proof of a charge brought by the State. That public interest must be weighed against the risk of an unfair trial which comes from the breach of the first of the fundamental principles mentioned in [7] above.
The risk of an unfair trial when propensity evidence is led, depends on the particular circumstances of the case. Examples are given in Dair at [63]. Speaking generally, such a risk may arise from the tendency in a jury to believe that the defendant is guilty of the charge, merely because he is a person likely to do such acts. Kirby J in BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 322 observed that research revealed a common tendency to infer from particular conduct, character traits which are then used to justify predictions and estimates about other conduct, despite the fact that, objectively, such predictions are frequently shown to be unwarranted. Another risk is the tendency in a jury to condemn, not because an accused is believed guilty on the present charge, but because he escaped punishment in relation to other offences. Thus, the jury might have a tendency to punish the accused for past misconduct by finding the accused guilty of the offence charged. Another risk arises from revulsion caused by the evidence which may result in the jury developing a bias against the accused which may impermissibly taint the jury's decision.
The risks may be reduced if directions which might overcome the bias are given to the jury: Dair [64] ‑ [65].
With those observations on the law, it is now necessary to turn to the circumstances of this case.
The evidence of the appellant's siblings showed that the appellant did have a long‑standing abnormal sexual interest in young children of both sexes in his own family. This was unusual, abnormal propensity behaviour. The propensity showed up when he was nearly 11, was still there when he was 16 and if the jury believed the complainants, then his propensity was still there when he was 29. The propensity did not show up between the ages of 16 and 29 because his opportunity to offend did not exist. The opportunity arose when he once again had young family children available to satisfy his urges. Such unusual abnormal behaviour had significant probative value. The law takes a different attitude to offences committed by children when it comes to conviction and punishment, but the question here is about the appellant's propensity and not about his criminal liability for the conduct against his siblings. His propensity was proven by his siblings' evidence. It was a propensity established when he was young. The appellant's propensity to indiscriminately sexually offend against young children of both sexes within the family had specific probative value in relation to the crime charged. It was not evidence of a mere propensity to commit crimes of the kind in question. It was open to infer that the appellant gave effect to the propensity on the occasions in question. The details of his conduct against his siblings were similar in many respects to the conduct against the complainants.
It then becomes a question of comparing the fact that the evidence of the siblings had significant probative value with the degree of risk of an unfair trial. This requires considering whether fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In this case, there was a risk that the jury would be revolted and impermissibly biased against the appellant by the evidence from the siblings about his abnormal conduct with them and that the revulsion might lead them to be inclined to convict on the offences charged. It is a risk which exists in many child sex cases where propensity evidence is led.
However, the risk was ameliorated by very detailed and repeated warnings from the trial judge about how the jury could use the evidence of the siblings. It would take up much room to repeat verbatim the directions the trial judge gave, but in short his Honour identified the evidence given by the siblings and then foreshadowed that he would be giving directions about how the jury could use that evidence (ts 1119). His Honour explained to the jury that the evidence of the siblings was led because 'it tends to show that the accused was sexually attracted to members of his own family when they were young children, whether they were his own children or his younger siblings, in a way that is not normal between persons having the relationship they did with the accused' (ts 1130). The jury was directed that they could only use the evidence of the siblings if they found it reliable and believed it to be true and if it had been proved 'beyond reasonable doubt' (ts 1131 and again at 1139 and 1144); that 'it would be dangerous to convict the accused' on the uncorroborated evidence of the complainants and that that statement applied likewise to the evidence of the siblings (ts 1139); that the evidence of the siblings was admitted on a 'strictly limited basis' (ts 1143); and that the jury had to be satisfied that the siblings' evidence was 'truthful and accurate' (ts 1139, 1144). The trial judge also said:
I must warn you, however, that you cannot simply find that if you accept that the evidence ... of ... the uncharged acts ... that he must have a propensity or tendency to behave in this unnatural way and he therefore committed or is likely to have committed the offences set out in the indictment concerning the ... complainants. That type of reasoning would be wrong (ts 1146).
Finally, a Longman warning (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79) was given, not only about the evidence of the complainants but also concerning the evidence of the siblings.
After all of the warnings and directions given, there could have been no doubt at all in the mind of the jury about how they could use the evidence of the siblings. In view of the strong directions given by the trial judge, the risk of an unfair trial was reduced or ameliorated to such a degree that fair‑minded people would have concluded that the public interest in adducing all relevant evidence should have priority over any slight residual risk of an unfair trial as a result of the evidence of the siblings.
It may be assumed that the trial judge did not decide to exclude the evidence of the siblings, having in mind that he would be giving directions of the sort ultimately given to the jury. Counsel for the appellant at trial was right not to object to the evidence of the siblings. There has been no miscarriage of justice. Ground 2 should be dismissed and, in consequence, the conviction appeal should be dismissed. I agree with Mazza JA regarding the sentence appeal.
MAZZA JA: These are appeals against conviction and sentence.
The appellant stood trial before Stevenson DCJ and a jury in the District Court in relation to an indictment alleging 28 counts of mainly sexual offending against three of his natural children (JAC, JPC and LRGC) and his de facto child (TWC). The charges as amended were as follows:
1)On an unknown date between 1 January 1997 and 31 December 1997 at Forrestfield [APC] indecently dealt with [JAC], a child who he then knew to be his lineal relative, by trying to insert his penis into her vagina
And that [JAC] was a child under the age of 16 years.
2)On the same date and at the same place [APC] sexually penetrated [JAC], a child who he then knew to be his lineal relative, by penetrating her vagina with his fingers
And that [JAC] was a child under the age of 16 years.
3)On the same date and at the same place [APC] sexually penetrated [JAC], a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
And that [JAC] was a child under the age of 16 years.
4)On an unknown date between 1 January 1998 and 1 December 1998 at Lesmurdie [APC] sexually penetrated [JAC], a child who
he then knew to be his lineal relative, by introducing his penis into her mouth
And that [JAC] was a child under the age of 16 years.
5)On an unknown date between 1 January 1998 and 31 December 1999 at Lesmurdie [APC] indecently dealt with [JPC], a child who he then knew to be his lineal relative, by encouraging him to touch his penis
And that [JPC] was a child under the age of 16 years.
6)On the same date and at the same place as in Count (5) [APC] indecently dealt with [JPC], a child who he then knew to be his lineal relative, by stroking his penis
And that [JPC] was a child under the age of 16 years.
7)On an unknown date between 1 January 1998 and 31 December 1999 at Lesmurdie [APC] indecently dealt with [JPC], a child who he then knew to be his lineal relative, by stroking his penis
And that [JPC] was a child under the age of 16 years.
8)On the same date and at the same place as in Count (7) [APC] sexually penetrated [JPC], a child who he then knew to be his lineal relative, by penetrating his anus with his penis
And that [JPC] was a child under the age of 16 years.
9)On an unknown date between 1 January 2001 and 1 June 2003 at Lesmurdie [APC] indecently dealt with [JPC], a child who he then knew to be his lineal relative, by stroking his penis
And that [JPC] was a child under the age of 16 years.
10)On the same date and at the same place as in Count (9) [APC] sexually penetrated [JPC], a child who he then knew to be his lineal relative, by penetrating his anus with his penis
And that [JPC] was a child under the age of 16 years.
11)On an unknown date between 1 January 2001 and 1 June 2003 at Lesmurdie [APC] encouraged [JPC], a child who he then knew to be his lineal relative, to engage in sexual behaviour
And that [JPC] was a child under the age of 16 years.
12)On the same date and at the same place as in Count (11) [APC] unlawfully detained [JPC].
13)On the same date and at the same place as in Count (11) [APC] sexually penetrated [JPC], a child who he then knew to be his lineal relative, by penetrating his anus with his penis
And that [JPC] was a child under the age of 16 years
14)On an unknown date between 1 February 2002 and 1 June 2002 at Lesmurdie [APC] indecently dealt with [JAC], a child who he then knew to be his lineal relative, by touching her vagina
And that [JAC] was a child under the age of 16 years.
15)On the same date and at the same place as in Count (14) [APC] sexually penetrated [JAC], a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
And that [JAC] was a child under the age of 16 years.
16)On an unknown date between 1 February 2002 and the 1 June 2002 at Lesmurdie [APC] sexually penetrated [JAC], a child who he then knew to be his lineal relative, by penetrating her anus with his fingers
And that [JAC] was a child under the age of 16 years.
17)On the same date and at the same place as in Count (16) [APC] sexually penetrated [JAC], a child who he then knew to be his lineal relative, by penetrating her anus with his penis
And that [JAC] was a child under the age of 16 years.
18)On an unknown date between 1 January 2001 and 1 June 2003 at Lesmurdie [APC] indecently dealt with [JAC], a child who he then knew to be his lineal relative, by trying to touch her vagina
And that [JAC] was a child under the age of 16 years.
19)On an unknown date between 1 January 2004 and 31 December 2004 at Forrestfield [APC] sexually penetrated [JAC], a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
And that [JAC] was a child under the age of 16 years.
20)On an unknown date between 1 January 2004 and 31 December 2004 at Forrestfield [APC] sexually penetrated [JAC], a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
And that [JAC] was a child under the age of 16 years.
21)On an unknown date between 1 January 2004 and 31 December 2004 at Forrestfield [APC] encouraged [JAC], a child who he then knew to be his lineal relative, to engage in sexual behaviour
And that [JAC] was a child under the age of 16 years.
22)On an unknown date between 1 January 2001 and 31 December 2002 at Forrestfield [APC] made a threat with intent to hinder [JAC] doing an act she was lawfully entitled to do.
23)On an unknown date between 1 January 2003 and 1 December 2004 at Forrestfield [APC] sexually penetrated [JPC], a child who he then knew to be his lineal relative, by penetrating his anus with his penis
And that [JPC] was a child under the age of 16 years.
24)On an unknown date between 1 June 2003 and 1 December 2004 at Forrestfield [APC] indecently dealt with [JPC], a child who he then knew to be his lineal relative, by stroking his penis
And that [JPC] was a child under the age of 16 years.
25)On an unknown date between 1 June 1999 and 1 June 2000 at Lesmurdie [APC] indecently dealt with [TWC], a child who he then knew to be his de facto child, by stroking his penis.
And that [TWC] was a child under the age of 16 years.
26)On an unknown date between 1 June 1999 and 1 June 2000 at Lesmurdie [APC] attempted to procure [TWC], a child who he then knew to be his de facto child, to engage in sexual behaviour by attempting to introduce his penis into [TWC's] mouth.
And that [TWC] was a child under the age of 16 years.
27)On the same date and at the same place as in count (25) [APC] indecently dealt with [TWC], a child who he then knew to be his de facto child, by rubbing his penis against [TWC's] buttocks.
And that [TWC] was a child under the age of 16 years.
28)On an unknown date between 1 June 2005 and 31 December 2006 at Forrestfield [APC] indecently dealt with [LRGC], a child who he then knew to be his lineal relative, by making her touch his penis.
And that [LRGC] was a child under the age of 16 years.
On 24 February 2011, he was convicted as charged, save for count 28, which was the only offence alleged to have been committed against LRGC. He was acquitted of this offence.
On 14 April 2011, the appellant was sentenced to a total effective sentence of 14 years' imprisonment backdated to commence on 6 February 2011, with eligibility for parole.
The 27 offences for which the appellant was convicted related to 16 separate incidents committed against the three complainants, JAC, JPC and TWC, over a total period of eight years. The offences relating to JAC and JPC were said to be representative of a course of conduct in respect of each of them. At the time of the offending:
(a)JAC, a girl, (date of birth 31 March 1989) was aged between 7 years and 15 years;
(b)JPC, a boy, (date of birth 16 June 1991) was aged between 6 years and 13 years; and
(c)TWC, a boy, (date of birth 21 June 1987) was aged 12 years.
The facts of the alleged offending can be briefly summarised as follows.
Offences allegedly committed against JAC
Counts 1 to 3 concern JAC and were committed in one incident in 1997, at a time when she was aged between 7 years and 8 years. According to the complainant, this was the first time that she recalled anything happening of a sexual nature. She alleged that she was at home in the shower. She said that the appellant whilst naked, got into the shower with her. She alleged that the appellant picked her up and attempted to insert his penis into her vagina: count 1. He then carried her into her bedroom, laid her on the bed and then penetrated her vagina, first with his fingers: count 2 and then with his penis: count 3. JAC recalled that at the time of the offending, TWC was banging on the bedroom door. At one point, the appellant put his hand over the complainant's mouth and he tried to settle her down by saying, 'Be a good girl'.
Count 4 occurred in 1998, at a time when JAC was aged between 8 years and 9 years. She testified that the appellant asked her to suck his penis in return for money. She did so. She vomited after the appellant ejaculated in her mouth. This was the first occasion JAC recalled engaging in fellatio with the appellant.
Counts 14 and 15 occurred when JAC was between 12 and 13 years old. At the time, JAC was recuperating from a knee operation. Her leg was in a splint. To enable her to have convenient access to a bathroom, JAC was sleeping in the master bedroom, which had an ensuite bathroom, in the same bed as the appellant and his wife. On the occasion in question, the appellant's wife was heavily asleep. The appellant touched JAC's vagina (count 14) and then penetrated her vagina with his penis (count 15).
Counts 16 and 17 occurred before counts 14 and 15, while JAC was recuperating from her knee operation. On this occasion, the complainant was in the shower. After she had completed her shower, the appellant applied lubricant jelly to his fingers which he rubbed around her anus and digitally penetrated it (count 16). He then penetrated her anus with his penis (count 17). On this occasion, the appellant covered the complainant's mouth with his hand. The incident stopped when the appellant's brother arrived at the front door.
Count 18 occurred on an unknown date when JAC was 12 or 13 years old. On this occasion, JAC, JPC and the appellant were watching television on a futon bed. The appellant attempted to touch the complainant's vagina. When JAC said, 'No', the appellant moved to the other side of the futon and he attempted to put JPC's hand down JAC's underpants. JPC was almost asleep at the time. JAC recalled the appellant breathing heavily.
Count 19 allegedly occurred when JAC was 14 or 15 years old, on an occasion when she was home from school because she was experiencing menstrual cramping. The appellant returned home unexpectedly. JAC alleged that he then engaged in sexual intercourse with the complainant, after which he gave her cigarettes and money.
Count 20 allegedly occurred sometime in January 2004 when JAC was 14 or 15. On this occasion, JAC was in the bath shaving her bikini line. The appellant was said to have entered the bathroom and then shaved the whole of her pubic region. He then engaged in an act of sexual intercourse with her.
Count 21 allegedly occurred when JAC was aged between 14 or 15 years old. The appellant was alleged to have asked the complainant for sexual intercourse as they walked past a park or a schoolyard. When the complainant refused, she said that the appellant became angry and said to her 'fuck you then'.
Count 22 is alleged to have occurred shortly after counts 14 and 15. JAC threatened the appellant that she would tell her mother what he had been doing to her. The appellant reacted by allegedly threatening to kill her, coming at her, but not striking her, with a closed fist.
Offences allegedly committed against JPC
JPC recalled that the first time that anything of a sexual nature occurred to him was when he was aged 6 or 7 years. He alleged that the appellant requested him to rub his back. During this process, the appellant allegedly instructed JPC to touch his erect penis, which he did: count 5. The appellant then allegedly put his hands behind his back and played with the complainant's penis asking 'does that feel good?': count 6.
Counts 7 and 8 allegedly occurred not long after the offences which have just been described. On this occasion the appellant was said to have gone to the complainant's bedroom, woken him up and then carried him back to the master bedroom. There, the appellant was alleged to have played with the complainant's penis: count 7, after which he anally penetrated JPC in the bed: count 8. JPC said his mother, who was in the bed at the time of these offences, was asleep. He said she was a very heavy sleeper.
Counts 9 and 10 allegedly occurred when the complainant was aged between 10 and 11. This involved the same occasion referred to earlier in relation to JAC (count 18) when the complainant, JAC and the appellant were watching television on a futon bed. After the appellant allegedly put his son's hand on JAC's vagina: count 9, he had anal sex with him: count 10. JAC testified that she was present when this act of sexual penetration occurred.
Counts 11, 12 and 13 allegedly occurred when JPC was aged between 11 and 13. These offences were said to have occurred in the one incident. JPC testified that the appellant offered him money for oral sex. He refused, but it was said that the appellant persisted in his demands: count 11. The complainant said that the appellant then dragged him, against his will, into the lounge room: count 12, where he engaged in anal sex with the complainant: count 13. During this last alleged offence, the appellant allegedly said to the complainant 'It doesn't hurt that much' and 'Stop crying' or words to that effect.
Count 23 was said to have occurred when the complainant was aged 12 or 13 years at a time when the appellant was off work on worker's compensation. The appellant was alleged to have come into the complainant's bedroom, got into his bed and anally penetrated him with his penis.
Count 24 was alleged to have occurred when the complainant was aged 12 or 13 years. This time JPC was watching television but fell asleep. The complainant said that he woke up to find the appellant beside him. In this incident, the appellant masturbated the complainant to ejaculation.
The offences alleged to have been committed to TWC
TWC said that he recalled an occasion sometime when he was 12 or 13 years when he was awoken to find the appellant kneeling next to his bed masturbating him: count 25. The appellant then took TWC to his bedroom where it was said that the appellant ground himself up against the complainant's bottom, rubbing his erect penis against the complainant's buttocks to ejaculation: count 27.
TWC alleged that in the same time period, in a separate incident to counts 25 and 27, the appellant joined the complainant in bed and tried to get the complainant to masturbate him. It was said that the appellant then pushed the complainant's head under the blankets in an attempt to have the complainant suck his erect penis. The attempt was unsuccessful, because the complainant crawled out of the end of the bed and went back to his own bedroom: count 26.
The prosecution case
In general, the prosecution case on each count relied upon the testimony of only the complainant. However, in respect of counts 1 to 3 and count 18, JPC gave evidence which arguably corroborated JAC's testimony. Similarly, in respect of counts 9 and 10, JAC gave evidence which arguably corroborated JPC's testimony.
The State adduced evidence from a number of witnesses who testified about when, and the circumstances in which JAC, JPC and TWC disclosed what had allegedly happened to them at the hands of the appellant. In ground 1 of the appeal against conviction, the appellant complains about the directions his Honour gave in relation to this evidence.
The State also adduced, without objection, evidence from two of the appellant's younger siblings, PC and MC, pursuant to s 31A of the Evidence Act.
PC is one of the appellant's sisters. She is three years younger than the appellant. She testified about three separate incidents which occurred when she was a young girl while her family were living in New South Wales or Victoria. The first of these incidents occurred in New South Wales when PC was about 7 or nearly 8 years old and the appellant was nearly 11 years: ts 571. PC testified that the appellant asked her to engage in an act of penile/vaginal sexual intercourse which then occurred. The second incident, PC said, occurred in or near Canberra when she was about 12 and the appellant was about 15 years of age. On this occasion there was mutual touching of a sexual nature which occurred in a dark room. According to PC, the third occasion occurred in Victoria when she was about 13 and the appellant was 16. She testified that the appellant asked her for sex, which she refused. If PC's testimony about each of these incidents was true, they occurred in or about 1979, 1983 and 1984.
MC is the appellant's brother. He is seven years younger than the appellant. He testified about a number of incidents which occurred in Victoria when he was about 6 or 7. MC said that on a number of occasions, the appellant anally raped him: ts 645. MC said that the appellant was, at the time, around 13 or 14 years of age. Based on this testimony, these alleged acts occurred in approximately 1981 or 1982.
Ground 2 complains, in effect, that the evidence of PC and MC was inadmissible pursuant to s 31A of the Evidence Act and that the appellant suffered a miscarriage of justice as a result of its admission. No complaint is made of his Honour's directions in respect of this evidence.
The appellant's case
The appellant elected to give evidence in his defence. He denied each and every allegation made by the complainants and by his brother and sister. The appellant's case was that the complainants and his siblings had made up all the allegations against him. Amongst other things, he argued that each complainant had related to the accused in an affectionate way by, for example, giving him Christmas cards, which would be inconsistent with the offending alleged against him: ts 1094 ‑ 1096. The appellant also pointed to the absence of prompt complaint in respect of the allegations to suggest that they were not credible.
The appeal against conviction
Ground 1
Ground 1 is in these terms:
1.The learned trial Judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately direct the jury about hearsay evidence of complaint regarding each of the complainants for whom verdicts of guilty were entered ('the complaint evidence');
Particulars
1.1His Honour failed to adequately direct the jury the complaint evidence was relevant only as to the credibility of the respective complainant they were considering;
1.2His Honour failed to adequately direct the jury the complaint evidence did not constitute corroboration in support of the testimony concerning the particular charge they were examining.
The fundamental factual issue for the jury to decide in each count, was whether the State had proven beyond reasonable doubt that the appellant had committed the alleged act said to constitute the offence.
It was common ground at trial, and in this appeal, that none of the alleged victims made a complaint at the first reasonable opportunity after the commission of an alleged offence by the appellant.
However, evidence was led by the State as to when each of the alleged victims disclosed what the appellant had allegedly done to them.
JAC testified that she first disclosed what happened to her to a cousin in about June 2006. At around this time, she also told a school friend. Members of the complainant's extended family also came to know of the allegations. JAC told two of her aunts what had allegedly occurred. At this time, JAC said that she did not want to go to the police, nor it seems, based on the evidence led by the State, did other members of her family.
Although JPC became aware of JAC's allegations in 2006, he did not disclose what had allegedly happened to him until about September/October 2006 when he made a disclosure to a cousin, TS, that the appellant had done things of a sexual nature to him as well as to JAC and TWC.
TWC told an aunt at the time JAC made her disclosure in 2006 that the appellant 'did exactly the same to me as he did to her': ts 455. Later, on or about July 2008, in a telephone conversation with his mother (the appellant's wife), TWC told her that the appellant had sexually abused him. At about that time, TWC went to the Cannington Police station, but made no statement about the matter until 2010.
JAC and JPC did not go to the police until 2008 or 2009.
In light of when the alleged offences were said to have occurred against each of the complainants, none of the evidence concerning disclosure could be considered to be recent complaint and it was never treated as such at trial.
This does not mean that the evidence was inadmissible. The question of whether and when each alleged victim first disclosed what had allegedly occurred to them was plainly a relevant factual issue at trial. The defence argued that the absence of fresh complaint showed that the allegations were false. The defence case was, in effect, that each complainant had ample opportunity to complain about what occurred at the time of the alleged offences and yet failed to do so. In these circumstances, the defence argued, the disclosures which were, in some cases, a very long time after the offences were said to have occurred, indicated that the allegations were false. The prosecution case was that in the particular circumstances, the absence of a fresh complaint was understandable and did not signify that the allegations made by each complainant were false.
His Honour gave detailed directions concerning the evidence of complaint. He began the direction in these terms:
I now want to say something to you about complaint, and the evidence you've heard in this trial about delay in complaint, in particular. In the trial you heard a lot of evidence about the circumstances of when and where the complainants made their separate allegations against the accused, for the first time, and what happened after they did: ts 1123.
His Honour continued:
Both counsel have made comments to you about this aspect of the evidence. The State has suggested to you that there are reasons why the complainants did not make immediate complaint at the time when you might have expected them to have. And the complainants themselves have also, in their evidence, told you why they did not. ... The accused says that there was nothing to complain about because nothing happened. And that is why there was no complaint at the time of the alleged offending: ts 1124.
His Honour expanded upon the defence argument as follows:
The complainants were, as I have said, in effect, cross‑examined as to why they made no immediate complaint to the people who you might have expected them to have complained, in the circumstances, or why they did not modify or change their behaviour to avoid any contact with the accused after [JAC] and [TWC] had made their allegations about him. ... The inference in the line of questioning about there being no immediate complaint by the complainants is that the events did not, in truth, happen because if they had happened, then the complainants would have complained immediately, or at all events, sooner than they did. As I have said, those questions were proper and the answers to them need to be considered by you in assessing the complainant's truthfulness and reliability. Counsel for the accused submitted to you, in effect, that it was inherently unlikely that a person, such as the complainants, would have failed to make immediate complaint if these things had really happened: ts 1125.
The learned trial judge, as required by s 36BD of the Evidence Act, then directed the jury that absence of fresh complaint does not necessarily indicate that a complainant's evidence is false and that there may be good reasons why there was no fresh complaint: ts 1125 ‑ 1127.
Towards the conclusion of his direction on the topic of complaint, his Honour said:
And I should say to you, of course, the fact that complaint was made to someone is not to be taken as independent or separate evidence of the truth of the complaint. Members of the jury, it is the evidence of the complainants which they say happened which you saw them and heard them give to you that you must consider, together with, of course, all the other evidence: ts 1129.
Later in the summing up, his Honour told the jury that apart from counts 1 to 3 and 9, 10 and 18, there was no evidence capable of corroborating a complainant's testimony. In doing so, his Honour expressly directed the jury that evidence of complaint was not corroboration. He said:
So apart from these two possible exceptions [counts 1 ‑ 3 and counts 9, 10 and 18], whilst there has been other evidence as to occasion and opportunity for the accused to have committed the offences, no one has corroborated the complainants' evidence as to the actual offences themselves in the indictment. By referring to corroboration in this sense, I'm not talking about the evidence of the complainants having made a complaint to someone else after what they say the accused did to them: ts 1137.
To reinforce the absence of any evidence capable of amounting to corroboration apart from in respect of counts 1 to 3 and counts 9, 10 and 18, his Honour said:
There is no corroboration subject to the two possible exceptions that I have mentioned: ts 1138.
The appellant submits that these directions were not 'adequate' for two reasons. First, the appellant contends that his Honour should have directed the jury that the evidence of complaint was not evidence of the truth of the complaint and only went to the complainants' credibility. Second, the appellant claims that his Honour did not instruct the jury that the complaint evidence did not constitute corroboration.
These submissions must be rejected. Where evidence of recent complaint is adduced, a trial judge must instruct the jury that such complaint is not evidence of the truth, but is relevant to the witness' credibility being evidence of consistency of conduct: Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 469 (Barwick CJ).
However, as I have pointed out, the complaint evidence in the present case was not adduced as evidence of recent complaint. To give such a direction would have been unnecessary and confusing.
His Honour clearly identified for the jury the issue to which the complaint evidence went, namely, did the delay indicate that the allegations were in fact false? In this way, delay was not just a question of a complainant's credibility, but it went to the central issue of whether the alleged offences had, in truth, occurred. His Honour's directions in this respect when read as a whole, are clear and accurate. There is nothing inadequate about them.
The appellant's contention that his Honour's failure to instruct the jury that the complaint evidence is not corroboration, is simply wrong. His Honour had told the jury this, not once, but twice. He could hardly have been clearer.
But even if his Honour had not given directions that the complaint evidence could not amount to corroboration, I would still not have upheld this ground. The complaint evidence was never presented to the jury on the basis that the evidence was corroborative. The evidence was very general and non‑specific in its nature. It is impossible to see how a reasonable jury could have thought that it somehow amounted to separate and independent proof of an offence.
Moreover, it cannot be overlooked that when his Honour directed the jury as to what evidence was capable of amounting to corroboration, he made no mention of the complaint evidence.
For these reasons, ground 1 fails.
Ground 2
Ground 2 is in these terms:
2.The learned trial Judge erred in law and fact, and there was a miscarriage of justice, when he allowed the Appellant's younger siblings [P] and [M] to give evidence of uncharged sexual misconduct committed against them by the Appellant when he was a child or a teenager.
Insofar as the ground alleges that there was an error of law or fact, the ground cannot succeed. As the evidence was adduced without objection, it cannot be said that his Honour made any error or wrong decision on a question of law to admit it: s 30(3)(b) Criminal Appeals Act 2004 (WA) and R v Soma [2003] HCA 13; (2003) 212 CLR 299 [42] (Gleeson CJ, Gummow, Kirby & Hayne JJ), [79] (McHugh J). The allegation of error of fact is no more than an unsupported assertion, probably inserted in the ground as a catch‑all. The only basis upon which the appellant can succeed on this ground is if he establishes that the admission of the evidence constituted a miscarriage of justice: s 30(3)(c) Criminal Appeals Act.
Where evidence is admitted without objection, it will be difficult for an appellant to establish a miscarriage of justice. This is because, generally, an appellant is bound by the way defence counsel conducted the trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] ‑ [33], [43], [102] ‑ [104]. At least two issues arise when it is alleged that evidence adduced without objection gave rise to a miscarriage of justice. First, was the evidence admissible? Second, if it was inadmissible, was the failure to object for rational forensic reasons? When addressing this second question, this court is concerned with whether counsel's decision is capable of explanation on that basis. If the answer to either question is 'yes', there will be no miscarriage of justice: Blum v The State of Western Australia [No 2] [2012] WASCA 40 [61] (Mazza JA, McLure P agreeing).
Was the evidence admissible pursuant to s 31A of the Evidence Act?
Section 31A of the Evidence Act is in these terms:
31A.Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The history and proper interpretation of this section has been dealt with in this court in a series of cases including Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122; VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362; Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 and Preston v The State of Western Australia [2012] WASCA 64.
Evidence will be admissible under s 31A if:
(a)it comes within either, or both, of the definitions of propensity evidence and relationship evidence; and
(b)it is considered that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. In assessing whether the evidence in question has significant probative value, the court is not permitted to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion; and
(c)the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Here, the State's case was that the evidence of PC and MC showed that the appellant had a sexual interest in children with whom he had a familial relationship. In this appeal, the parties accepted that the evidence was propensity evidence as defined in s 31A(1) on the basis that it was evidence of 'a tendency that an accused has or had'. While the evidence of the appellant's siblings may have also been relationship evidence, I will proceed on the basis that it was propensity evidence.
The question of the admissibility of the evidence of PC and MC can go no further unless it has significant probative value. For evidence to be probative of something, it must be relevant. If it is not relevant, it is inadmissible. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [2] (Gleeson CJ).
By the inclusion of the adjective 'significant', Parliament has clearly intended that the evidence sought to be adduced must be more than merely relevant. In Dair [61], Steytler P noted this and referred to Heydon, J D, Cross on Evidence (7th Aust ed, 2004) par 21245, which suggested that 'significant' means 'important' or 'of consequence'. This coincides with the way the word 'significant' was treated by Wheeler JA in The State of Western Australia v Osborne [2007] WASCA 183 [13]. Whether evidence is significant depends upon the fact in issue and the importance that the evidence in question has to the proof of that fact.
If the evidence has significant probative value, the court must then weigh the probative value of the evidence against the risk that the trial will be rendered unfair by its admission. Of all the processes required by s 31A, the weighing process in s 31A(2)(b) is arguably the most difficult. It requires not just the weighing of things which are incommensurable, but it requires an assessment, not of what the presiding judicial officer would think, but what a hypothetical fair‑minded person would think. The main risk of an unfair trial caused by the admission of the evidence under consideration in this case is that the jury will reason that because the appellant behaved in the way alleged by his siblings, he is likely to have committed the offences alleged against his children and de facto child.
It is relevant to the assessment of the risk of an unfair trial, to take into account any directions which might be given to overcome the prejudice.
As I have already observed, the fundamental issue for the jury to decide, was whether the State had proved beyond reasonable doubt that the appellant had committed the acts alleged to constitute each offence.
The State's case at trial was that the evidence of PC and MC showed that the appellant had a sexual interest in young children with whom he had a familial relationship. The learned trial judge directed the jury on this basis.
Before this court, Mr Watters submitted that the evidence was inadmissible because it did not have significant probative value. Alternatively, he said, a fair‑minded person having compared the probative value of the evidence with the risk of an unfair trial, would not regard it as being in the public interest to adduce the evidence.
Mr Watters submitted, in effect, that there was a material difference between having a sexual interest in one's siblings as a child and having a sexual interest in one's own children or stepchildren as a mature adult: appeal ts 15.
Ms Petrusa, for the respondent, submitted in effect, that the evidence of PC and MC showed that the appellant had a long‑standing abnormal sexual interest in young children in his own family whether male or female.
In my opinion, the evidence of PC and MC did not have significant probative value and was accordingly inadmissible. I have reached this conclusion for the following reasons.
It is true, when looked at broadly, that the evidence of PC and MC shows that the appellant had a sexual attraction towards children in his own family. However, there is a material difference between a sexual interest directed towards a person's siblings when a child and a sexual interest in that person's own children or stepchildren as an adult. While it might be tempting as an intuitive exercise, to reason that a person is more likely to have a sexual interest in his or her own children or stepchildren if that same person had, as a child, a sexual interest in their siblings, it is not something which a jury can judge from its own experience. Nor was there any evidence, expert or otherwise, to enable the jury to conclude that sexual activity between adolescent siblings is a common or significant characteristic of the antecedents of those who, as adults, sexually abuse their own children. Evidence of that kind would be necessary before a jury could reasonably conclude that the evidence of PC and MC, made it more likely that the appellant was guilty of sexually abusing his children. In the absence of evidence of that kind, it cannot be concluded that the evidence of PC and MC was probative of the appellant’s guilt, let alone significantly probative of that guilt.
The youth of the appellant at the time of the alleged sexual conduct with PC and MC is of importance. At the time of the first incident involving PC, the appellant was 10 years of age, nearly 11. The last incident occurred when he was 16 years old. The incidents relating to MC allegedly occurred when the appellant was around 14 years of age.
A child aged in the range of between 10 and 16 years, most significantly at the younger end of that range, cannot be expected to have developed the same sense of moral responsibility as an adult. Decisions and actions made as a child are ordinarily viewed, in a moral sense, differently from those made by an adult of 29 years as the appellant was when he allegedly began offending against JAC.
In these circumstances, I am not persuaded that the evidence passed the test provided for in s 31A(2)(a) of the Evidence Act.
Having concluded that the evidence was inadmissible, I now proceed to determine whether defence counsel's failure to object to it was for rational forensic reasons.
This question can be answered shortly. Defence counsel, in discussions with the learned trial judge before the empanelment of the jury, told his Honour that he was not objecting to the evidence of PC and MC because he thought that an objection could not succeed. He told his Honour that in his view 'there's certain relevance to it': ts 29. Defence counsel's failure to object was as a result of a misconception as to its admissibility and not for any rational forensic reason.
In my opinion, the admission of the evidence of PC and MC has led to a miscarriage of justice in this case. The respondent did not seek to invoke the proviso. Ground 2 must be upheld and the appeal against conviction allowed.
The appeal against sentence
As I would allow the appeal against conviction, it is not necessary for me to deal with the appeal against sentence. However, had I been required to, I would have dismissed it.
I have already summarised the facts with respect to the offences and noted that the appellant was sentenced to a total effective sentence of 14 years' imprisonment with eligibility for parole. The individual sentences imposed on the appellant were as follows:
| Count | Offence | Sentence (Maximum) | Complainant's Name and Age |
| 1 | Indecently dealt with lineal relative, being a child under 16, by trying to insert his penis into her vagina: s 329(4) Criminal Code (WA) ('Code'). | 24 months concurrent (10 years) | JAC 7 or 8 years old |
| 2 | Sexually Penetrated lineal relative, being a child under 16, by penetrating her vagina with his fingers: s 329(2) Code. | 36 months Concurrent (20 years) | JAC 7 or 8 years old |
| 3 | Sexually Penetrated lineal relative, being a child under 16, by penetrating her vagina with his penis: s 329(2) Code. | 54 months concurrent (20 years) | JAC 7 or 8 years old |
| 4 | Sexually Penetrated lineal relative, being a child under 16, by introducing his penis into her mouth: s 329(2) Code. | 42 months concurrent (20 years) | JAC 8 or 9 years old |
| 5 | Indecently dealt with lineal relative, being a child under 16, by encouraging him to touch his penis: s 329(4) Code. | 24 months concurrent (10 years) | JPC 6 or 7 years old |
| 6 | Indecently dealt with lineal relative, being a child under 16, by stroking his penis: s 329(4) Code. | 24 months concurrent (10 years) | JPC 6 or 7 years old |
| 7 | Indecently dealt with lineal relative, being a child under 16, by stroking his penis: s 329(4) Code. | 36 months concurrent (10 years) | JPC 6 or 7 years old |
| 8 | Sexually Penetrated lineal relative, being a child under 16, by penetrating his anus with his penis: s 329(2) Code. | 60 months concurrent (20 years) | JPC 6 or 7 years old |
| 9 | Indecently dealt with lineal relative, being a child under 16, by penetrating his anus with his penis: s 329(2) Code. | 30 months concurrent (10 years) | JPC 10 or 11 years old |
| 10 | Sexually Penetrated lineal relative, being a child under 16, by penetrating his anus with his penis: s 329(2) Code. | 60 months concurrent (20 years) | JPC 10 or 11 years old |
| 18 | Indecently dealt with lineal relative, being a child under 16, by trying to touch her vagina: s 329(4) Code. | 24 months cumulative (10 years) | JAC 12 or 13 years old |
| 11 | Encouraged lineal relative, being a child under 16, to engage in sexual behaviour (fellatio): s 329(3) Code. | 36 months concurrent (20 years) | JPC 11 - 13 years old |
| 12 | Unlawful Detention: s 333(2) Code. | 36 months concurrent (10 years) | JPC 11 - 13 years old |
| 13 | Sexually Penetrated lineal relative, being a child under 16, by penetrating his anus with his penis: s 329(2) Code. | 72 months concurrent (20 years) | JPC 11 - 13 years old |
| 14 | Indecently dealt with lineal relative, being a child under 16, by touching her vagina: s 329(4) Code. | 24 months concurrent (10 years) | JAC 12 - 13 years old |
| 15 | Sexually Penetrated lineal relative, being a child under 16, by penetrating her vagina with his penis: s 329(2) Code. | 54 months concurrent (20 years) | JAC 12 - 13 years |
| 16 | Sexually Penetrated lineal relative, being a child under 16, by penetrating her anus with his fingers: s 329(2) Code. | 36 months concurrent (20 years) | JAC 13 years old |
| 17 | Sexually penetrated lineal relative, being a child under 16, by penetrating her anus with his fingers: s 329(2) Code. | 60 months concurrent (20 years) | JAC 13 years old |
| 19 | Sexually Penetrated lineal relative, being a child under 16, by penetrating her vagina with his penis: s 329(2) Code. | 48 months concurrent (20 years) | JAC 14 or 15 years old |
| 20 | Sexually Penetrated lineal relative, being a child under 16, by penetrating her vagina with his penis: s 329(2) Code. | 48 months concurrent (20 years) | JAC 14 or 15 years old |
| 21 | Encouraged lineal relative, being a child under 16, to engage in sexual behaviour (sexual penetration): s 329(3) Code. | 18 months concurrent (20 years) | JAC 14 or 15 years old |
| 22 | Make a Threat with Intent to Influence: s 338A(c) Code. | 18 months concurrent (10 years) | JAC 13 years old |
| 23 | Sexually Penetrated lineal relative, being a child under 16, by penetrating his anus with his penis: s 329(2) Code. | 60 months concurrent (20 years) | JPC 12 or 13 years old |
| 24 | Indecently dealt with lineal relative, being a child under 16, by stroking his penis: s 329(4) Code. | 36 months concurrent (20 years) | JPC 12 or 13 years old |
| 25 | Indecently dealt with lineal relative, being a child under 16, by stroking his penis: s 329(4) Code. | 36 months concurrent (10 years) | TWC 12 years old |
| 27 | Indecently dealt with lineal relative, being a child under 16, by rubbing his penis against TWC's buttocks: s 329(4) Code. | 36 months concurrent (10 years) | TWC 12 years old |
| 26 | Attempted to Procure lineal relative, being a child under 16, to engage in sexual behaviour (fellatio): s 329(5), s 552 Code. | 24 months cumulative (10 years) | TWC 12 years old |
The grounds of appeal are:
Ground 1
1.The learned Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the Appellant personally.
Ground 2
2.The learned sentencing Judge erred in reasoning that there was no mitigation so far as the prospects of rehabilitation of the Appellant were concerned because he denied the offending (t‑s1285)
Ground 3
3.The learned sentencing Judge erred when he effectively characterised the offending as being in the worst category (t‑s 1288);
Particulars:
3.1There were no elements of brutality or depravity;
3.2The offending did not result in any pregnancies;
3.3The offending did not occur daily.
The question of leave to appeal in respect of all grounds was referred to the hearing.
The general legal principles relevant to appeals against sentence are well known and are conveniently set out in Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P & Owen JA). They do not require repetition here.
His Honour's sentencing remarks
His Honour noted that at the time of sentence the appellant was 42 years of age. Although the appellant had a prior criminal record, his Honour said that it was of 'no moment': ts 1284. His Honour accepted that the appellant had a strong work ethic and had been gainfully employed for most of his life. His Honour considered that the appellant should be sentenced on the basis that he had prior good character. The learned sentencing judge noted that the appellant continued to have support from his family. With respect to the conduct of the trial, the appellant was given credit for facilitating 'the efficient and effective disposition of the process': ts 1285.
His Honour referred to the court ordered pre‑sentence and psychological reports. His Honour noted that those documents revealed that the appellant continued to 'emphatically deny the offences'. His Honour then made the statements which are the subject of ground 2:
Until you acknowledge your wrongdoing [APC], you are in a position where you cannot rehabilitate yourself: ts 1285.
In the same vein, his Honour said a short time later:
In this case there is no mitigation so far as the prospects of rehabilitation are concerned, because you deny categorically the offending: ts 1285.
Towards the end of his sentencing remarks, his Honour summarised the appellant's offending in this way:
With respect to the offending, speaking generally, as I have said, it occurred over a lengthy period of time. In my view, it involved conduct in respect of [JAC] and [JPC] in particular, which can only be described as brutal and vicious on your part. It was sustained and perpetrated over a lengthy period of time of over eight years. You used force, coercion and bribery to obtain your way with the victims. You were manipulative and controlling in respect of their relationship with you and other members of the family. They suffered at times pain and obviously suffered fear. The abuse by you, for all of these reasons, as a parent, was a significant abuse of the trust that they reposed in you as their father and stepfather. You treated them, in my view, as is referred to in the psychological report, as sex objects. You treated them with absolute contempt. You showed no care or concern about their physical or emotional wellbeing and you have perpetuated that conduct, because you still show no remorse and have no victim empathy, and I say that notwithstanding, which is of course your right, to continue to maintain your innocence. In my view, the offending is at the upper end of seriousness for these types of offences, and you must be sentenced with reference to the sentencing principles, on the basis that it is one of the most serious cases of this nature: ts 1288.
Ground 1: totality
The totality principle was concisely stated by McLure P in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26] in these terms:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260)
In support of this ground the appellant, in essence, relied upon his written submissions. Those submissions do little more than refer to the facts and circumstances of VIM v The State of Western Australia, KC v The State of Western Australia [2008] WASCA 216 and GHS v The State of Western Australia [2006] WASCA 42. This was done presumably to suggest that they demonstrated that the total effective sentence in the present case offended the first limb of the totality principle.
Although each case must be decided on its own facts, other cases are relevant when considering an alleged breach of the totality principle. They are a yardstick with which to judge whether the total sentence under consideration is broadly consistent with sentences imposed in similar cases.
It is unnecessary to analyse in detail the cases referred to by the appellant. It is sufficient to observe that those cases reveal that the total effective sentence imposed upon the appellant is broadly consistent with other cases.
Having regard to the serious features of the appellant's offending as identified by the learned sentencing judge, the need to provide general and specific deterrence in cases of this type and having regard to the appellant's personal circumstances, the appellant has fallen a long way short of demonstrating a breach of the first limb of the totality principle. In my opinion, the total effective sentence of 14 years' imprisonment, bore a proper relationship to the overall criminality involved in all of the offending, viewed in its entirety and having regard to the circumstances of the case including those referable to the appellant personally.
Ground 1 fails.
Ground 2: the appellant's prospects of rehabilitation
The appellant submitted that his Honour erred in not taking into account, as a mitigating factor, the appellant's prospects of rehabilitation. The appellant submits that in light of his family support and the fact that he will be spending a large time in custody, some allowance should have been given for his prospects of rehabilitation.
This submission cannot be accepted. His Honour, in the exercise of his sentencing discretion, was entitled, based on the appellant's continued denials, to find that there was no mitigation insofar as the appellant's prospects of rehabilitation were concerned. His Honour's conclusion in this regard was further justified by the nature of the offending and the lengthy period of time over which it occurred as well as the appellant's lack of empathy or remorse.
Ground 2 fails.
Ground 3: did his Honour characterise the offending as being in the worst category?
The appellant asserts that the learned sentencing judge 'effectively' characterised the offending as being in the worst category. This characterisation of his Honour's sentencing remarks is simply inaccurate. His Honour described the offending as 'at the upper end of seriousness of these type of offences' and 'one of the most serious cases of this nature', but on no fair reading of the sentencing remarks as a whole, did he characterise what the appellant did as being in the worst case category.
Ground 3 fails.
Conclusion on the appeal against sentence
Had I been required to decide the appeal against sentence, I would have refused leave on each ground of appeal and dismissed the appeal.
Conclusion and orders
In respect of the appeal against conviction, ground 1 fails, but ground 2 must be upheld. Accordingly, the convictions and sentences imposed must be set aside and a new trial ordered.
Had I been required to decide the appeal against sentence, I would not have given leave to appeal on any of the grounds and I would have dismissed the appeal.
The orders I would make are:
1.The appeal against conviction is allowed.
2.The convictions on counts 1 to 27 and sentences are set aside.
3.A new trial is to be held.
27
31
2