ARK v The State of Western Australia

[2014] WASCA 45

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ARK -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 45

CORAM:   PULLIN JA

BUSS JA
MAZZA JA

HEARD:   4, 5 & 21 NOVEMBER 2013

DELIVERED          :   26 FEBRUARY 2014

FILE NO/S:   CACR 194 of 2012

CACR 195 of 2012

BETWEEN:   ARK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SWEENEY DCJ

File No  :IND 1371 of 2011

Catchwords:

Criminal law - Appeal against conviction - Whether evidence that appellant was in custody awaiting trial following breach of bail conditions was inadmissible and prejudicial - Whether admission of alleged impermissible and prejudicial evidence could be cured by direction to jury

Criminal law - Appeal against conviction - Recantation of evidence - Principles applicable to an appeal based upon recantation evidence of trial witness - Credibility of recanting witness - Whether reasonable jury could accept recantation evidence as true

Criminal law - Appeal against conviction - Recantation of evidence - Whether purported recantation of complainant's evidence after trial established a miscarriage of justice

Criminal law - Sentencing - Appeal against total effective sentence of 12 years' imprisonment - Sexual offences against de facto child - Offending commenced when child was 11 years old - Multiple offences of sexual penetration

Legislation:

Criminal Appeals Act 2004 (WA), s 27(3), s 39, s 40

Result:

Appeals dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr B Fiannaca SC & Ms S Markham

Solicitors:

Appellant:     Seamus Rafferty

Respondent:     Director of Public Prosecutions (WA)

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

Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387

Bell v The Queen [2001] WASCA 40

Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10

Bryer v The Queen (1994) 75 A Crim R 456

CJF v The State of Western Australia [2012] WASCA 69

Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375

Coleman v The Queen [2011] VSCA 301

Davies & Cody v The King [1937] HCA 27; (1937) 57 CLR 170

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

DPJB v The State of Western Australia [2010] WASCA 12

ERA v The State of Western Australia [2013] WASCA 163

Fragomeni v The State of Western Australia [2011] WASCA 67

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

GHK v The State of Western Australia [2014] WASCA 19

GHS v The State of Western Australia [2006] WASCA 42

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

House v The King (1936) 55 CLR 499

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

KMB v The State of Western Australia [2010] WASCA 212

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 655

MAS v The State of Western Australia [2012] WASCA 36

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13

MMC v The State of Western Australia [2012] WASCA 187

PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546

Pollock v The State of Western Australia [2009] WASCA 121

R v AHK [2001] VSCA 220

R v DD [2005] VSCA 308

R v Flower [1966] 1 QB 146

R v Geesing (1985) 38 SASR 226

R v Poulter (1978) 19 SASR 370

R v Swaffield [1998] HCA 1; (1998) 192 CLR 159

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Re GAM [2005] VSCA 234; (2005) 12 VR 177

Reid v The State of Western Australia [2012] WASCA 23

Rinaldi v The State of Western Australia [2007] WASCA 53

Roffey v The State of Western Australia [2007] WASCA 246

Roncevic v The State of Western Australia [2012] WASCA 43

SG v The State of Western Australia [2013] WASCA 236

SWD v The State of Western Australia [2012] WASCA 76

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414

The State of Western Australia v FJG [2012] WASCA 206

The State of Western Australia v Prince [2011] WASCA 22

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

VIM v The State of Western Australia [2005] WASCA 233

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

White v The Queen [2006] WASCA 62

Woods v The Queen (1994) 14 WAR 341

TABLE OF CONTENTS

Pullin JA's reasons.................................................................................................................... 6
Grounds of appeal in relation to conviction
Ground 1
Ground 2
20 August statement
An extraordinary aspect of the appeal
Credibility of the complainant's evidence given at the appeal

Conclusion
Sentence appeal
The sentencing judge's findings
The maximum sentences available and the sentences actually imposed
Principles applicable to an appeal against sentence
Ground 2
Ground 1

Conclusion
Buss JA's reasons................................................................................................................... 31
The counts on which the appellant was convicted
The facts and circumstances of the offending
Appeal against conviction:  grounds of appeal
Appeal against conviction:  ground 1
Appeal against conviction:  ground 2:  this court's power to admit additional evidence in an appeal
Appeal against conviction:  ground 2:  this court's approach to and assessment of additional evidence admitted in an appeal
Appeal against conviction:  ground 2:  fresh evidence on appeal from a recanting witness
Appeal against conviction:  ground 2: its merits
Appeal against conviction:  conclusion
Appeal against sentence
Mazza JA's reasons................................................................................................................. 58

1. PULLIN JA:  The appellant applies for leave to appeal against his conviction and against the sentences imposed.

2. The appellant was convicted after a trial before a District Court judge and a jury of eight counts of aggravated sexual penetration of his de facto child, and one count of attempted aggravated sexual penetration of the same de facto child.  All of these offences were committed upon the one complainant, who was the daughter of the appellant's partner.  The jury acquitted the appellant in relation to two other counts on the indictment.  The complainant gave evidence.  The appellant elected not to do so.

3. The complainant was born in August 1995.  The first of the offences for which the appellant was convicted were committed when the complainant was 11 years of age.  The next offences were committed when the complainant was at various ages through until the last of the offences, which were committed when the complainant was 15 years old.  The charges were representative of similar conduct over the whole period.  Most of the offences were committed in the complainant's bedroom at night.  Two days after the last offences were committed, the police were told.  The complainant was interviewed at length over several days about the history of abuse, and the charges were then laid against the appellant.  The charges of which the appellant was convicted read:

   (3)On a date unknown between 26 August 2006 and 27 August 2007 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his finger

   And that [the complainant] was a child under the age of 16 years.

   (4)On the same date and at the same place as in Count (3) [the appellant] again sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

   And that [the complainant] was a child under the age of 16 years.

   (5)On or about 8 June 2007 at … [the appellant] again sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his finger

   And that [the complainant] was a child under the age of 16 years.

   (6)On a date unknown between 21 September 2007 and 23 September 2008 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

   And that [the complainant] was a child under the age of 16 years.

   (7)On a date unknown between 31 May 2010 and 27 August 2010 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

   And that [the complainant] was a child under the age of 16 years.

   (8)On a date unknown between 30 September 2010 and 9 October 2010 at … [the appellant] attempted to sexually penetrate [the complainant], a child who he then knew to be his de facto child, by attempting to introduce his penis into her mouth

   And that [the complainant] was a child under the age of 16 years.

   (9)On or about 30 May 2011 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

   And that [the complainant] was a child under the age of 16 years.

   (10)On or about 6 June 2011 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his finger

   And that [the complainant] was a child under the age of 16 years.

   (11)On the same date and at the same place as in Count (10) [the appellant] again sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

   And that [the complainant] was a child under the age of 16 years.

4. The appellant was admitted to bail after he was charged.  It was a condition of bail that no contact would be made with the complainant.  In breach of the bail condition, the appellant made contact with the complainant.  He was then arrested and bail was revoked.  He was then held in custody pending trial.

5. Evidence led by the prosecution consisted of the evidence of the complainant, who gave detailed evidence supporting each of the charges of which the appellant was convicted.  Other evidence was led which corroborated the complainant's evidence that the appellant had a sexual relationship with the complainant.  This included:

   (a)evidence of a young man, 'C', who was a guest at the house where the appellant, the complainant's mother and other members of the family lived.  He testified that on one occasion, at night, he heard the complainant scream and went to the complainant's bedroom window and saw the appellant in the room, which corroborated the complainant's evidence that the appellant would go to her bedroom at night;

   (b)evidence of the appellant's uncle and the uncle's partner, with whom the appellant had initially lived after being charged and whilst on bail.  They went to visit the appellant in prison and during one of the visits, the appellant admitted that he had had sex with the complainant;

   (c)evidence of the appellant's mother, who visited him while he was on remand in prison.  His mother testified that the appellant had said to her that he merely had to go to the bedroom and touch the complainant on the shoulder and the complainant would then have sex with him;

   (d)evidence of a friend of the appellant who spoke to the appellant at a party.  The appellant had made a comment at the party about the complainant which the friend understood to mean that the appellant was having sex with the complainant;

   (e)evidence of what the appellant said to the complainant after he was arrested.  He engaged in Facebook contact with the complainant under a false name and made an apology, which, it was open to the jury to construe, amounted to an admission that he had been having sex with the complainant.

6. Thus, there was a strong prosecution case and the jury convicted the appellant.  The acquittal on two counts may well have followed as a result of the trial judge's direction in terms of Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. Those offences were alleged to have occurred when the complainant was only five.

7. The jury returned the verdicts on 4 May 2012.  It is relevant for the purpose of considering the second ground of appeal to mention two matters, one occurring before the trial and one after.  The first matter is that on the day before the trial, the appellant made an offer to the prosecutor to plead guilty to three consensual acts of intercourse with the complainant on the basis that she instigated the acts (ts 679).  The offer was rejected by the prosecutor.  The second matter arises out of a psychiatric report that was received after the jury's verdict and before sentencing.  The appellant had been remanded in custody until 6 July 2012, and a pre‑sentence report and psychiatric report were called for.  The reports were not to hand on that date, so the appellant was further remanded in custody until 21 August 2012.  The psychiatric report of Dr Wojnarowska dated 1 August 2012 was received by the court in time for sentencing on 21 August 2012.  The report stated that the appellant admitted to the psychiatrist that he had sex with the complainant; that 'it first happened' when she was 11 years old; and that the appellant gave details of three sexual encounters that he could recall to the psychiatrist.

8. The case came on for sentencing on 21 August 2012.  On 20 August 2012, the trial judge received a document signed by the complainant (20 August statement).  What was in the 20 August statement and what happened between receipt of the document and the hearing on 21 August 2012 is referred to below when considering ground 2 of the appeal.  Sentencing proceeded on 21 August 2012.  The trial judge imposed the following sentences:

   (a)in respect of counts 4, 6, 7, 9 and 11, all being counts of penile penetration, the trial judge imposed terms of 6 years' imprisonment;

   (b)in respect of counts 3, 5 and 10, all being counts of digital penetration, and count 8, an attempted penile penetration, terms of 4 years' imprisonment were imposed.

9. The trial judge said that, were she to add all of the sentences together, the sentence would be too long.  As a result, the trial judge made an order that the sentence for count 6 should be cumulative on the sentence for count 4, and that all other sentences were to be served concurrently.  That resulted in a term of imprisonment of 12 years.  The appellant was made eligible for parole.  The trial judge informed the appellant that that meant that he must serve 10 years before he could be released on parole.  The sentence was backdated to 4 March 2012, which took into account time that the appellant had served in custody since the expiry of a 7 month sentence he was serving for assaulting a public officer.

10. The next month, on 26 September 2012, the complainant was interviewed by two detectives about the 20 August statement.  What the complainant said to the two police is referred to when considering ground 2.

Grounds of appeal in relation to conviction

1. The appellant raises two grounds of appeal in relation to his conviction.

   Ground 1

   The learned trial judge erred by allowing, over objection, the introduction into evidence of inadmissible and prejudicial material that could not be cured by any direction:

   Particulars

   1.1The jury were made aware the appellant was in custody awaiting trial;

   1.2The jury were made aware the appellant had breached his bail by contacting the complainant.

   Ground 2

   Fresh evidence, that has emerged since the hearing of the trial, establishes that a miscarriage of justice occurred when the appellant was convicted.

2. In relation to ground 2, reliance was placed by the appellant on the 20 August statement of the complainant, details of which are referred to below.

Ground 1

1. Before the trial commenced, counsel for the appellant asked for a pre‑trial ruling on an objection she had to any evidence being led from the appellant's uncle and the uncle's partner, and the appellant's mother, about the fact that admissions were made by the appellant when they visited him at Hakea Prison.  As already mentioned, the appellant was in custody because he had breached a bail condition prohibiting him from having contact with the complainant.

2. When the appellant was arrested and charged with the offences of which he was convicted and admitted to bail, one of the conditions of bail was that he was not to live at the house with the complainant and the other family members and was not to make contact with the complainant.  As a result, he went to live with his uncle and his uncle's partner.  While he was living with them, his uncle and the partner quizzed him about whether he had committed the offences.  His answer was that if he did commit the offences, he did not remember doing so.

3. While the appellant was staying with them, he made contact with the complainant via Facebook under a false name and gave his telephone number to the complainant and asked her to ring him.  The complainant told the police, and as a result, under the supervision of the police, the complainant telephoned the number at least three times and identified the appellant as the person who answered the telephone.  The calls were recorded.  There is no dispute that it was the appellant who answered the telephone.

4. The first two calls were received by the appellant while he was at the house of his uncle and his uncle's partner.  They were present and strenuously urged him not to continue the calls because they knew that this was in breach of the bail condition.  Because they so strenuously objected, the appellant left the house.  He then had another telephone conversation with the complainant during which he made statements which, it was open to the jury to conclude, amounted to admissions about his sexual conduct with the complainant.  Shortly after that, the police arrived and he was arrested.  Bail was revoked and he was then held in custody at Hakea Prison until the trial.

5. While he was in prison, the appellant's uncle and his uncle's partner called to see him on several occasions.  On one of those occasions, the appellant made statements from which it was open to the jury to conclude that he admitted sexual conduct with the complainant, but not on the 'particular night' alleged in the indictment, with the result, he said, that he was pleading not guilty.

6. The appellant was also aware from the prosecution brief before trial that the prosecutor intended calling the appellant's mother to give evidence of her visits to the appellant in prison, where admissions were made by the appellant to his mother about his sexual conduct with the complainant.

7. Before the trial commenced, counsel for the appellant sent an email to the court raising an objection to the proposal that evidence be led from the appellant's uncle and his uncle's partner and the appellant's mother that they visited him while he was in Hakea Prison.  The submission was that evidence that he was in prison on remand when the conversations took place was prejudicial and exceeded its probative value.  See R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [62] ‑ [65].

8. The prosecutor submitted that the evidence was necessary to put the conversations had by the appellant's uncle and his uncle's partner with the appellant in context.  Counsel for the prosecutor conceded that if the appellant's uncle and his uncle's partner were not called, it would be possible to lead evidence from the appellant's mother without disclosing that the appellant had been in prison when he made the admissions.

9. The trial judge ruled that the location where the conversations took place was admissible and gave reasons for that decision.  Her Honour said that if only the appellant's mother was giving evidence then it would have been possible for the witness to give evidence without identifying where the conversation took place.  The trial judge said, however, that the issue was really decided by reference to the decision about the evidence of the appellant's uncle and his uncle's partner.  Her Honour said that the fact that the conversations occurred at Hakea Prison was inextricably bound up in their evidence and the reason why the appellant was living with his uncle and his uncle's partner would have to be given to explain why the appellant was with his uncle and why his uncle told him to hang up when he understood that the telephone call was from the complainant.  Her Honour also said that once he was on remand, the two witnesses changed their attitude towards the appellant and that they confronted him in jail and asked him to tell the truth.  The trial judge said:

   In my view it will be unduly superficial, indeed, quite impossible for the witnesses to give evidence of those conversations … and particularly why that conversation occurs in the way in which it does when they are clearly confronting the [appellant] and telling him they will 100 percent support him even if he is … guilty.  It's a significant change in the conversational tone and it does seem to me that without the information that precedes it the continued contact between the [appellant] and the complainant, the police turning up, breach of bail issues and his being on remand - without hearing that the evidence will be led in a totally superficial vacuum and will be quite incomprehensible (ts 133).

1. Her Honour observed that juries may or may not be aware of how many people get bail and how many are on remand awaiting charges, but concluded:

   I don't consider the fact that a person is on remand [a]waiting charges to be resolved is of itself highly prejudicial [and] … it's certainly in a very different category from a person being a sentenced prisoner for a serious and unrelated matter (ts 133).

2. Her Honour concluded therefore that she did not consider any prejudice which might be suffered would be 'high'.  However, her Honour observed that there would be 'some prejudice' and that it would be 'entirely curable by direction' (ts 131 ‑ 134).

3. In submissions to this court in support of ground 1, counsel for the appellant rehearsed the same submissions which were made to the trial judge.  The appellant's counsel submitted that the fact that the appellant was in prison was 'potentially highly prejudicial, regardless of the strength of any direction given to the jury'; that the jury may have attached undue weight to the evidence about the appellant being in jail because he breached his bail, or may have used the evidence for inadmissible purposes such as corroborating the complainant's testimony because the appellant was trying to contact her; and that there was a risk that the jury would give the impugned evidence more weight than it deserved and that references to jail and the appellant breaching bail were likely to inflame the jurors and divert them from their task, which primarily involved an assessment of the credibility of the complainant and her evidence.

4. It is important in relation to this ground of appeal to take into account the fact that the trial judge did direct the jury about the use they could make of the evidence led about the fact that the appellant had been remanded in custody.  The trial judge directed the jury in the following manner:

   You heard the evidence about his bail conditions in order to make sense of the Facebook and the phone call evidence.  And you heard evidence about his losing bail, also to make sense of the evidence about conversations people have said they had with the [appellant] once he was in custody.  So it's a part of the story of the investigation and you wouldn't have understood the evidence without understanding what had happened in relation to the bail.  But the mere fact that he lost his bail, doesn't tell you anything about whether or not he is guilty of the charges on this indictment (ts 582).

5. No ground of appeal complains about that direction to the jury.

6. The appellant's submissions have no merit.  It was relevant to put the evidence of the appellant's uncle and his uncle's partner into context to explain that the appellant had been admitted to bail, which explained why he was living with his uncle and his uncle's partner, and to understand why they were so strenuous in their demands that the appellant stop talking to the complainant.  It also explained why they then visited him and had conversations with him at some place other than at the house.  The evidence about the appellant being in custody put in context the evidence of the appellant's uncle and his uncle's partner.  The evidence therefore had probative value.  Once that evidence was led, there could be no separate objection to the fact that the appellant's mother said that she had had conversations with the appellant at Hakea Prison.

7. Another aspect of the appellant's submissions suggested that notwithstanding the direction by the trial judge, a miscarriage would occur because the jury heard the evidence (and might ignore the trial judge's direction).  That submission must be rejected.  The jury was told in clear terms not to conclude that the appellant was guilty of the offence merely because he was remanded in custody.  The system of criminal justice as administered by appellate courts requires the assumption that, as a general rule, juries understand and follow directions given by a trial judge:  Fragomeni v The State of Western Australia [2011] WASCA 67 [30]; Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13]. There is no reason offered for an assertion that, and no ground of appeal suggesting that, the jury did not understand and follow the trial judge's direction.

8. The question of leave to appeal on ground 1 was referred to the hearing of the appeal.  I would grant leave but dismiss ground 1.

Ground 2

1. Section 39(1) of the Criminal Appeals Act 2004 (WA) states that this court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) states that subsection (1) does not affect the power of an appeal court in s 40 to admit further evidence. The appellant made an application to admit further evidence from the complainant. An order was made under s 40(1)(b) requiring the complainant to attend court. This application was supported by an affidavit exhibiting the 20 August statement.

2. At the hearing of the appeal, the appellant sought and was granted leave to call the complainant and the complainant gave evidence. An order was then made to admit the transcript of the evidence of the complainant under s 40(1)(d) of the Criminal Appeals Act. A declaration was made that the complainant was a 'special witness' within the meaning of s 106R(1)(a) of the Evidence Act 1906 (WA). The complainant then gave evidence outside the courtroom but within the court precinct. That evidence was recorded onto DVD and an order was made pursuant to s 40(1)(c)(ii) of the Criminal Appeals Act that the recording be admitted as additional evidence in the appeal.

3. The complainant's evidence in chief in the appeal was brief.  During that evidence, the complainant confirmed the truth of the contents of:

   (a)the 20 August statement; and

   (b)a DVD containing the audiovisual recording of an interview of the complainant conducted by the police on 26 September 2012.

4. During cross‑examination, the respondent tendered additional evidence, being:

   (a)a signed handwritten statement of the complainant dated 26 July 2012; and

   (b)a copy of a transcript of the complainant's testimony in the trial of a man, SPG, on 8 August 2012 (pages 502 ‑ 557).

5. The respondent also tendered further additional evidence, being:

   (a)the psychiatric report of Dr G Wojnarowska, dated 1 July 2012;

   (b)six edited DVDs containing the audiovisual recording of interviews of the complainant conducted on 7, 8, 15 and 22 June 2011 and 6 July 2011, which had been played to the jury at the trial;

   (c)a DVD containing the audiovisual recording of the interview of the complainant's friend 'B' by child protection officers, which had been played to the jury.

6. From the appellant's point of view, the critical aspect of this additional evidence was the complainant's confirmation of her 20 August statement and what she said about it which, the appellant submitted, amounted to a recantation by the complainant of her evidence given at trial about the sexual conduct by the appellant constituting the offences of which he was convicted. 

20 August statement

1. It is not necessary to set out the contents of the 20 August statement in full, but in it the complainant wrote that in 'March or April' (which in context was in 2011), her friend B (a girl of about the complainant's age) asked the complainant to go to a shopping centre.  The complainant wrote that the appellant would not let her go.  B was said to have told the complainant that the complainant could 'boss' the appellant.  When the complainant asked how, she wrote that B told her that when B's stepfather, SPG, was 'smashed', she had sex with him and, later, told SPG that she had done so and that she would tell the police about the incident if she did not gain certain advantages, which advantages included 'paying for [B's] hair' and 'makeup' for a ball.  The complainant wrote in the 20 August statement that 'that night' she crushed up two of her mother's sleeping pills, put them in the appellant's beer, and when he went to sleep she put a condom on the appellant's penis and had sex with him.  She said, in her words, that the appellant ejaculated and that she then took off the condom and flushed it down the toilet.  She wrote that she told the appellant about it the next day and 'instructed him that if he didn't do what I told him I would call the police'.  She said that the appellant then 'did whatever I ordered him to, he let me go wherever I wanted to go'. 

2. At the appeal hearing, in the complainant's evidence in chief, she was shown the 20 August statement and she confirmed that it was true.  She was then asked about the paragraph in the 20 August statement describing how she had sex with the appellant.  She was asked, 'Is that the only time that you and he had sexual relations?' and the complainant answered, 'Yes'.  That evidence, if accepted, amounted, it may be inferred, to a recantation or repudiation of all the detailed evidence given by the complainant at the trial of the appellant about the commission of the nine offences of which the appellant was convicted.  This may be inferred because, although the complainant was not referred to the detailed evidence given by the complainant at trial about digital and penile penetration and attempted penetration, and was not asked whether she stood by or retracted it, her statement that the incident of 'March or April' 2011 was the only time she had 'sexual relations' with the appellant contradicts that detailed evidence.

3. Before turning to the circumstances which led to the recanting evidence and the motive which drove the complainant to give it, it is appropriate to refer to the principles which govern an appeal based on the recanting evidence of a witness who gave evidence at trial.  They are:

   (a)The mere declaration by a witness that he or she committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence:  Davies & Cody v The King [1937] HCA 27; (1937) 57 CLR 170, 183. As the members of the court said in that case, if the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence is said by the witness who gave it to be false, or even proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment.

   (b)However, the evidence may be of such quality that the verdict becomes open to objection upon a ground affected by such evidence:  Davies (184).

   (c)If the recanting evidence is fresh evidence, then it was evidence which the appellant did not have available to him at the time of the trial, or which could not then have been available to him by the exercise on his part of reasonable diligence in the preparation of his case.  The unavailability of that evidence at the time of the trial may involve a miscarriage of justice, but this will only be so if the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new (or fresh) evidence had been before it at trial:  Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 275, 301 ‑ 302.

   (d)In determining whether there is such a significant possibility, the court must be satisfied that the fresh evidence is relevant and credible, or as is sometimes said, that the fresh evidence has cogency and plausibility:  Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 676 ‑ 677.

   (e)Such evidence has to be credible in the sense that a reasonable jury could accept it as 'true', but it is not necessary for the appeal court to decide whether a reasonable jury would believe such evidence:  Mickelberg (301 ‑ 302) (Toohey & Gaudron JJ); Lawless (676 ‑ 677) (Mason J); Gallagher (410) (Brennan J).

   A question arises as to why that is so in the face of s 30(3) of the Criminal Appeals Act, which says that it is for the court to form its 'opinion' as to whether there has been a miscarriage of justice or not.  As the High Court said in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [35], speaking about a provision the equivalent of s 30(4) of the Criminal Appeals Act (the 'proviso'), the fundamental task committed to the appellate court under the common form of criminal appeal statute in Australia is to 'decide the appeal'. The court added, speaking still about a section the equivalent to s 30(4) of the Criminal Appeals Act, that the task entrusted to the court was not to be undertaken:

   by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred' [35].

   See also Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 520 (Barwick CJ).

4. There is no reason why what was said in Weiss (and by Barwick CJ in Ratten) should not also apply to s 30(3) of the Criminal Appeals Act. Pursuant to s 30(3), the Court of Appeal must allow the appeal if 'in its opinion' there was a miscarriage of justice. Approaching the matter on the basis of asking whether 'a reasonable jury could' accept the fresh evidence as true, seems to be adding an unnecessary gloss on the legislative provision which requires this court to form its own opinion. However, having made those observations, in most appeals involving fresh evidence it will be difficult and at times impossible for the appeal court to assess the evidence given at trial and the effect the fresh evidence might have upon it. This will be so in many cases where the appeal court only has the transcript of the evidence of the witnesses at trial. It would not be possible for the appeal court to make its own assessment and form an opinion about the impact of the fresh evidence if it consisted of a witness contradicting the evidence of witnesses given at trial. In those circumstances, all the appeal court could then decide and form an opinion about was whether a reasonable jury could accept the fresh evidence as true.

5. This case is different.  Here, the appeal court has the entirety of the complainant's evidence given at trial in the form of DVD recordings.  This court can see exactly what the jury saw at trial of the complainant's evidence.  The court has also observed the complainant and the appellant give evidence in this appeal.  The court therefore has before it all of the evidence relevant to the question of the credibility of the fresh evidence.  It would, in these circumstances, be artificial to ask whether a reasonable jury could accept the fresh evidence as true.  This court is able to determine for itself and form its own opinion as to whether the complainant's fresh evidence is credible, that is, whether it has cogency and plausibility.

6. However, in case the test referred to at the beginning of this subparagraph, based on Mickelberg and Lawless, is a rigid rule to be applied in all cases, I will assess the fresh evidence given on this appeal on two bases.  First, I will assess whether I form the opinion that the complainant's evidence is credible, in particular, whether I believe the complainant's fresh evidence and believe it is true that she only ever had sex once with the appellant.  Secondly, I will decide the matter on whether it is credible in the sense that a reasonable jury could accept it as true.

An extraordinary aspect of the appeal

1. Before turning to discuss the background to the alleged recantation evidence given by the complainant at the hearing of the appeal, there is a need to mention an extraordinary aspect of the appeal.

2. The appellant, having called and led the evidence from the complainant that she only had sex with the appellant once, was faced with the psychiatrist's report which recorded post‑conviction admissions by the appellant to the psychiatrist to the effect that the appellant had had sex with the complainant on three occasions when she was 11 years old.  The psychiatrist's report became an exhibit in the appeal.  If the appellant had wished to dispute that he had made the admissions to the psychiatrist, then the correct course to have followed would have been to object to the psychiatrist's report going into evidence without the psychiatrist being called.  No such objection was pressed.

3. On the second day of the appeal, counsel for the appellant applied for leave to call the appellant to give evidence about what he had told the psychiatrist.  Counsel said that the appellant wished to deny that he had told the psychiatrist that he had sex three times with the complainant when she was 11 years old.  In effect, the appellant now wished to raise an objection to the tender of the report.  The appellant was given leave to give evidence.  The appellant then went into the witness box and testified on oath that he had sex three times with the complainant when she was 15 years old and that he did not tell the psychiatrist that he had sex with her three times when she was 11 years old.

4. It is extraordinary that the appellant should persist with his submission that there has been a miscarriage of justice based on the complainant's evidence that she only had 'sexual relations' with the appellant once in her life and that, inferentially, her detailed evidence at trial was not true, while at the same time testifying, in effect, that her evidence that they only had sexual relations once was false.  The appellant's oral testimony has destroyed the foundation of this ground of appeal, unless his testimony is entirely rejected and the complainant's testimony during the appeal is accepted as credible.

5. There is no reason to reject the appellant's testimony.  The evidence is uncontradicted and should be accepted.  I find that the appellant had sex at least three times with the complainant when she was 15 years old, as he said he did.  The complainant's evidence that she only had sex once with the appellant is contradicted by the appellant's evidence.  The question then arises as to the credibility of the complainant's evidence.

Credibility of the complainant's evidence given at the appeal

1. On the question of the credibility of the complainant's evidence, the appellant's evidence at the appeal is relevant.  As already noted, there is no reason to reject that evidence.  The effect of the appellant's testimony is that the complainant's evidence on the appeal is false.  He testifies that he had sex with the complainant three times when she was 15.  That strongly suggests that the complainant's evidence is not credible.

2. However, there is more evidence which bears on the credibility of the complainant's evidence in the appeal and that evidence shines a bright light on the motive of the complainant for writing the 20 August statement.  The evidence involves an examination of the history of this family.

3. The appellant came into the house where the complainant was living with her mother and sister when the complainant was only about five years old.  Two daughters were born as a result of the relationship between the appellant and the complainant's mother.  They were therefore younger than the complainant.  The complainant's evidence at trial was that, when the complainant was about 11 years old, the appellant began having sex with her when he felt like it.  He used to have sex with her about once a week, and used threats, violence and his strength to overwhelm her, caring nothing for her protests or distress. 

4. In 2005, when the complainant was about 10 years old, news that the appellant was sexually interfering with the complainant reached the police.  When the police came to investigate, they arrested the appellant.  The complainant was interviewed by the police, but denied that the appellant had interfered with her and instead made an allegation against a young family friend, 'C', saying that he had digitally penetrated her vagina.  As a result, the appellant was not charged in 2005.

1. The complainant was questioned by counsel for the appellant about the 2005 allegation against C during cross‑examination in the appellant's trial in this case.  The complainant said that her mother told her that she should tell the police that it was not the appellant interfering with her, but instead accuse C.  The complainant said that her mother told her that if she said this, her mother would stop the appellant from interfering with her (see trial ts 277 ‑ 283).  However, the complainant's mother did not take the promised steps to protect her daughter and the sexual abuse continued.

2. Not long after the appellant's arrest in 2005, the appellant's maternal grandmother made a statement to the police during which she said that the complainant had said to her that the appellant had 'put a finger in her' (trial ts 526).  However, the grandmother supported the appellant during the trial in this case.  In her evidence as a defence witness in the trial of the appellant, she denied that the complainant had told her about the digital penetration until she was presented with a copy of the police statement by the prosecutor.  She then said, 'I don't remember her saying it to me though … well, if she did … she did' (ts 526 ‑ 527).

3. When the complainant was about 11 or 12 years old, she became friendly with a girl, 'B', who was about a year older than the complainant.  B was, likewise, sexually abused by her stepfather. 

4. At the trial of the appellant, B was called and she gave evidence that, on or about 7 June 2011, B and the complainant went to the complainant's bedroom and it was there that the complainant revealed to B, for the first time, that the appellant was sexually interfering with the complainant.  B, or B's mother, then immediately told the police and the police came to the house.  The appellant was arrested and later charged.

5. This was a harrowing day for the complainant.  The complainant's grandmother accused the complainant of lying, as a result of which, B assaulted the grandmother.  There was such commotion and upset that the complainant hid under the table and held onto one of its legs.  See appeal ts 83 ‑ 85.

6. The complainant was then interviewed over a number of days by child protection officers, during which she gave a detailed account of occasions when the appellant sexually penetrated her or attempted to sexually penetrate her. 

7. The complainant gave uncontested evidence on the appeal that her circumstances then worsened rather than improved.  They worsened because the complainant's mother and grandmother ostracised her and the complainant became a victim in a new way.  She was now obliged to live away from home, at times living in parks and at other times living with a relative or other persons.  She described herself, on appeal, as living as a 'homeless' person.

8. Sometime after the events of about 7 June 2011, but before the trial of the appellant in April 2012, the complainant fell out with B.  On or about 26 July 2012, the complainant wrote a handwritten statement dated 26 July 2012, which made its way to the police.  By that time, B's stepfather, SPG, had been charged with sexual penetration offences against B while B was a child.  The complainant's statement was to the effect that B had told her that she (B) had sex with her stepfather when he was asleep and then blackmailed the stepfather for favours.

9. As a result, on 8 August 2011, the complainant was called at the trial of SPG and gave evidence about B telling her the story that B had sex with her stepfather while he was asleep.  It evidently did not convince the jury.  The jury convicted SPG and he was sentenced to 12 years' imprisonment.  B's stepfather did not appeal against his conviction.  Unquestionably, he was not an 'innocent' man as the complainant later claimed he was in the 20 August statement. 

10. Later, and less than two weeks after giving evidence at the trial of B's stepfather, the complainant wrote out the 20 August statement.  She sent it to the court and it reached the trial judge on 20 August 2012.  In her evidence in the appeal, the complainant said that when she wrote the 20 August statement, she did not know that B's stepfather had already been convicted.  The complainant explained, also in this court, that she wrote the 20 August statement because she loved her sister and half‑sisters and she would 'do anything' to get her family back.

11. It is obvious to me that the complainant wanted her family back and made up the 20 August statement to try to bring that about.  As bad as her life had been while living with the appellant, it was better than living ostracised by her family and better then living as a homeless person without any care from her mother, poor as that care had been.

12. Further, as mentioned, when she wrote out the 20 August statement, the complainant did not know that SPG had been convicted.  It is obvious from the 20 August statement that the complainant thought that her 26 July 2012 statement and her evidence at SPG's trial would see SPG acquitted, and that the complainant thought that if she wrote a letter telling the same story and adding to it that she (the complainant) did to the appellant what she said B had told her that B had done to SPG and sent it to the sentencing judge, that, somehow or other, the appellant would be released, he would go home and she, her mother and sisters would be together again.

13. It is also necessary to observe that the description of the unlikely incident in the 20 August statement when the complainant claimed that she had sex with the appellant while asleep was, if true, not fresh evidence.  If that had been true, then the appellant knew about it at the time of the trial.  This is because, according to the complainant in the 20 August statement, she had told the appellant about the incident the next day.  If, as the complainant contends, she then blackmailed the appellant to gain benefits on the basis that there had never been any sexual encounter before, the appellant well knew about it.  The appellant did not testify at trial to tell the jury this and counsel appearing at trial did not cross‑examine the complainant to put this forward.  This is a strong indication that the complainant's evidence about the incident in 'March or April' and the recantation evidence lacks credibility and is not true.

14. Further impacting on the credibility of the 20 August statement and the complainant's evidence on appeal is that the complainant was not able to consistently repeat the story set out in the 20 August statement.  For example, in the statement she said that immediately after the incident she took the condom and flushed it down the toilet.  When interviewed by the police only just over a month later on 26 September 2012, she said that she kept the condom in a drawer for a week and then hid it in a neighbour's bin because she felt if she put it in her own bin, her mother might see it.  She said in the 20 August statement that the appellant was asleep when the incident occurred.  However, in the interview with the police in September, she indicated that he was conscious or semi‑conscious.  In the statement she said she gave the appellant two sleeping pills, and to the police, she said she only gave him one.  The complainant's explanation for these inconsistencies when cross‑examined on them in the appeal was that she could not 'even remember half the details' about the incident described in the 20 August statement, despite the police interview occurring only just over a month after the complainant wrote the statement.

15. I do not believe that the evidence the complainant gave in the trial of the appellant about the detailed circumstances of all the offences committed against her was in any way weakened by the evidence of the complainant given at the appeal.  Her evidence on appeal entirely lacks credibility.  I believe that her 20 August statement was a desperate effort to save her from the plight she had found herself in after the appellant was charged.  It was a desperate attempt to restore the only family life she knew.  As a result, I accept the appellant's evidence on appeal and reject the evidence of the complainant given on appeal. 

16. The only remaining question then, is could a reasonable jury accept the complainant's recantation evidence (that is, the 20 August statement and the complainant's oral testimony in the appeal) as true?  As previously noted, it is not necessary that the court decide that a reasonable jury would believe the evidence.

17. In light of the evidence as to the inconsistencies in the complainant's varying accounts of the incident recounted in the 20 August statement, the lack of evidence elicited by the appellant at trial as to that incident, the appellant's own evidence on appeal that contradicted the complainant's recantation evidence, and the evidence of a clear motivation for the complainant to write the 20 August statement in the hope of reuniting her family, it is abundantly clear that a jury, acting reasonably, could not have accepted the complainant's recantation evidence as true.

18. As a result of the foregoing, there has been no miscarriage of justice.  The question of leave to appeal on ground 2 was referred to the hearing of the appeal.  I would grant leave but dismiss ground 2.

Conclusion

1. The appeal against conviction should be dismissed.

Sentence appeal

1. The appellant appeals against the sentences imposed on the following grounds:

   Ground 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 variation offences viewed in their entirety, that involved only one complainant, and all the circumstances of the case including those referable to the appellant personally.

   Ground 2

   The sentencing discretion miscarried when her Honour sentenced the appellant on the basis [that] the offences fell towards the upper end of the scale for such offending.

2. No complaint is made by the appellant about the individual sentences imposed.

The sentencing judge's findings

1. The sentencing judge made the following findings for the purpose of sentencing.

2. The appellant came into the complainant's life when she was about four or five years of age, and the appellant's sexual relationship with the complainant began when she was 10 and ended when she complained to the police at the age of 15.  The appellant was an intimidating partner and stepfather who was, on occasion, violent and threatening to the complainant's mother.  He would, on occasions, hit the complainant and her older sister by way of a 'crack to the head' when he was displeased with them.  The complainant's mother was not focussed on protecting the children, but rather on maintaining her relationship with the appellant, with the result that the complainant's mother positively discouraged the complainant from making allegations against the appellant.  The pressure on the complainant resulted in the complainant either denying or remaining silent during earlier police interviews.  The complainant's mother supported the appellant at trial.

3. The sentencing judge also found that the complainant's maternal grandmother, as a defence witness, was evasive in her evidence about whether the complainant had complained to her.

4. Her Honour found that the family dynamics were all about the complainant's mother maintaining her relationship with the appellant.

5. When the appellant committed the offences involving penetration he would persist despite the fact that the complainant would be in distress and be crying.  He was observed by a witness on one occasion to strike the complainant to the face and to use abusive language towards her.

6. As already mentioned, the appellant, after he was charged and released on bail with a protective condition that he not contact the complainant, initiated contact with her via a series of emotional Facebook messages in a false name in an attempt to manipulate the complainant.  As a result, the complainant contacted the police who arranged a pretext telephone call.  The appellant suggested that there were expressions of remorse during the telephone call, but the sentencing judge found that the appellant's words were an admission of having engaged in an inappropriate sexual relationship with the complainant.

7. Before his arrest, the appellant spoke to a male friend or acquaintance indicating that he was having sex with the complainant whenever he wanted to, which indicated that the appellant regarded his de facto child as a sexual object he could use at his will, or when his wife was intoxicated and therefore sexually unavailable to him.

The maximum sentences available and the sentences actually imposed

1. In relation to all of the offences of which the appellant was convicted, save for the attempt, the maximum penalty was 20 years' imprisonment.  For the offence of attempting to commit sexual penetration on his de facto child, the maximum sentence was 10 years' imprisonment.

2. The sentences imposed are set out earlier in these reasons.

Principles applicable to an appeal against sentence

1. The principles applicable to an appeal against sentence are well established.  An appeal court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.  However, the court will not intervene merely because it would have exercised the sentencing discretion in a different manner from the sentencing judge:  House v The King (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 655 [15]. An appeal court will intervene if error by the sentencing judge is apparent. Error may be inferred if the result is unreasonable or plainly unjust: House (505) (Dixon, Evatt & McTiernan JJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3].

Ground 2

1. It is convenient to deal first with ground 2 of the sentence appeal.  The appellant asserts that the offences of which the appellant was convicted did not fall towards the upper end of the scale for such offences for a number of reasons:  that there was only one complainant; there was no depravity involved; there was no actual pregnancy endured on the part of the complainant; there was no physical force used in relation to the matters on the indictment save in relation to one count; there was no extensive grooming involved; there were no inducements offered to ensure the complainant's compliance; there were no threats by the appellant to the complainant to ensure her later silence; the sentencing judge found that the appellant presented as a low to moderate risk of reoffending; and a review of cases involving offending of a similar nature highlights a mid‑level categorisation of the appellant's offending was reasonably open.

2. Sexual offences involving children are of the utmost seriousness, particularly where an abuse of trust is involved:  The State of Western Australia v Prince [2011] WASCA 22 [18]. The fact that the offending could have conceivably been worse, or that certain aggravating features such as physical violence or extreme perversion are absent, does not diminish the gravity of the offences themselves: MMC v The State of Western Australia [2012] WASCA 187 [63]. As the High Court said in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 478, 'ingenuity can always conjure up a case of greater heinousness'. The fact that a worse case may be envisaged does not preclude a case from falling within the worst category of cases for offences of that type: Veen (478); The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [42] (Wheeler & Pullin JJA, Owen JA agreeing). See also VIM v The State of Western Australia [2005] WASCA 233 [288] ‑ [295].

3. The sentencing judge summed up the seriousness of the appellant's offending in her sentencing remarks:

   [Y]ou've committed a gross breach of trust against your stepchild, who should have been able to look to you for protection.  She lost her virginity to you, she went through a pregnancy scare with you and in the end [she] had to look to her own protection against pregnancy, which can only have been confusing to her and increased her own sense of worthlessness and helplessness in the situation.  You were physically aggressive when she resisted you and you used that and also manipulation and intimidation generally as the father figure to coerce her to become compliant … and there were times when she was compliant as a result … [S]he had to endure years of abuse in a family where it was made very clear to her that if her mother had to choose, she would choose you, leaving [the complainant] quite powerless.  [The complainant was] 11 when you took her virginity and the offending behaviour continued until she was 15.  When she did find the courage to speak up, she was, in effect, kicked out of the family home … Even after [the complainant] had complained and you were subject to protective bail conditions, you were clearly trying to manipulate her into retracting her allegations.  I find these offences fall towards the upper end of the scale for such offending (ts 690 ‑ 691).

4. As her Honour's remarks above demonstrate, this was a case of the utmost seriousness.  It was open to her Honour to find that the appellant's offending fell towards the upper end of the scale for such offending.  The appellant's contentions are without merit.  Leave to appeal in relation to ground 2 of the appeal should be refused.

Ground 1

1. Ground 1 of the sentence appeal is an allegation that the total effective sentence imposed by the sentencing judge infringed the first limb of the totality principle.  That 'limb' requires that the total effective sentence imposed 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; Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25].

2. A ground alleging that the sentencing judge has infringed the totality principle is an allegation of inferred error:  Reid v The State of Western Australia [2012] WASCA 23 [40]. The court is required to examine the seriousness of the appellant's offending, the appellant's mitigating factors, and comparative cases: Juma v The State of Western Australia [2011] WASCA 54 [34]; Pollock v The State of Western Australia [2009] WASCA 121 [27].

3. The seriousness of the appellant's offending is considered above in relation to ground 2 of the sentence appeal.  As already concluded, the appellant's offending was of the utmost seriousness, and it was open to the sentencing judge to find that the appellant's offending fell towards the upper end of the scale for such offending.

4. The primary sentencing considerations for offences of the kind in this case are general and specific deterrence, and the need to protect vulnerable children, with reduced weight given to matters referable to the offender personally:  SG v The State of Western Australia [2013] WASCA 236 [27]; Woods (346); MMC [48]. See also Bell v The Queen [2001] WASCA 40 [12]. In relation to mitigating factors, the sentencing judge considered the appellant's 'dysfunctional childhood' to be mitigatory, and accepted the view of the author of the psychiatric report obtained prior to sentencing that there was likely a causal link between the appellant's childhood and his offending behaviour (ts 688 ‑ 689). Her Honour noted the appellant's history of employment, but considered it to have limited mitigatory value when viewed in the context of offences of this nature (ts 689). Her Honour considered there to be nothing further in mitigation, noting in particular that the appellant was not young, had a past criminal record (although not one that made the present offending more serious), and that there was 'no hint of remorse' or 'any acceptance of responsibility at all' by the appellant (ts 689).

1. The circumstances of sexual offending are infinitely variable:  The State of Western Australia v Akizuki [2008] WASCA 267 [68]. While reference to comparable authorities may provide broad guidance as to whether a total effective sentence imposed in a particular case offends the totality principle or not (Roffey [27]), the range of sentences typically imposed does not limit sentences to those boundaries: Roncevic v The State of Western Australia [2012] WASCA 43 [36].

2. The cases relied upon by the appellant provide no support for the sentence appeal.  The State of Western Australia v FJG [2012] WASCA 206 was a state appeal against sentence imposed in respect of an offender who was convicted of 14 sexual offences committed in respect of his two daughters. FJG may be distinguished because the offender pleaded guilty to five counts on the indictment, and mitigatory weight was given to those pleas by the sentencing judge [43]. Further, the offender was 75 years old at the time of sentencing, and the court considered that some leniency should be afforded to the offender on account of his age [68].

3. VIM was also a successful state appeal against sentence, in which the offender received a total effective sentence upon appeal by the state of 10 years' imprisonment in respect of convictions for 11 counts of rape, 13 counts of indecent assault, and seven counts of sexual penetration without consent in respect of his two stepdaughters.  However, at the time of VIM, resentencing in a successful state appeal required the double jeopardy principle to be applied.  This required the imposition of sentences upon appeal somewhat less than what would properly have been imposed at first instance:  see VIM [326].

4. The appellant also relies upon MAS v The State of Western Australia [2012] WASCA 36, which involved an unsuccessful appeal against sentence by the offender on the ground that the sentencing judge had breached the totality principle. In MAS, the offender was sentenced to the same total effective sentence as the appellant in this case, that is, 12 years' imprisonment.  The appellant asserts that a number of aggravating features present in MAS were lacking in this case, and that the offender in MAS was convicted of 25 offences, which was a far greater number than in this case.  In dismissing the appeal in MAS, the court noted that a review of sentences imposed in comparable cases involving pleas of not guilty was between 6 years (where the appellant was an old man at the time of trial and had committed the offences many years earlier) and 14 years 6 months:  MAS [93]. The court further noted that three of the six comparable cases reviewed by McLure P in The State of Western Australia v Prince [2011] WASCA 22 [20] involved sentences of imprisonment of 12 years or more (MAS [ 93]), that the sentence imposed in MAS was 'well within' the range of sentences customarily imposed in such cases, and that the total effective sentence in MAS should properly have been towards the upper end of the available range [94].  The court did not in fact find that the sentence imposed in MAS was sitting at the upper end of the available range, and rejected the appellant's argument that, in cases involving a single complainant, the upper end of the range is in the vicinity of 10 years' imprisonment [94].  The appeal court's task in respect of the sentence appeal in MAS was only to consider whether a greater sentence could or should have been imposed on the offender in the circumstances.  As a result, MAS provides no support for the appellant's argument in this case that a total effective sentence of 12 years' imprisonment was manifestly excessive.

5. As well as the above cases, regard should also be had to the cases canvassed by Newnes JA in SG [29] ‑ [32], and the cases considered by McLure P in Prince [20] where a plea of not guilty was entered by the offender. These cases show that sentences imposed between 2006 and 2013 for offences comparable with those for which the appellant has been convicted range from 6 to 14 years' imprisonment. Of the eight cases considered, a total effective sentence of 12 or more years' imprisonment was ordered in five cases. It is clear that the sentence imposed on the appellant in this case was well within the range available to the sentencing judge.

6. This was a serious case of sexual offending with little to be said by way of mitigation in favour of the appellant.  In the circumstances, the total effective sentence of 12 years' imprisonment is clearly not disproportionate to the overall criminality involved in all the offences.  I would refuse leave to appeal in relation to ground 1 of the sentence appeal.

7. I would refuse leave to appeal on grounds 1 and 2 of the sentence appeal with the result that the appeal against sentence is dismissed.

Conclusion

1. In relation to the conviction appeal, the orders should be:

   (a)Leave to appeal be granted in respect of grounds 1 and 2.

   (b)The appeal be dismissed.

1. In relation to the sentence appeal, the order should be that leave to appeal in respect of grounds 1 and 2 should be refused.

2. BUSS JA:  The appellant has applied for leave to appeal against conviction and sentence.

3. He was charged on indictment with 10 counts of sexual penetration and one count of attempted sexual penetration of his de facto child.

4. On 4 May 2012, after a trial in the District Court before Sweeney DCJ and a jury, the appellant was convicted of eight counts of sexual penetration and one count of attempted sexual penetration.

5. On 21 August 2012, the primary judge imposed a total effective sentence of 12 years' imprisonment.  The sentence was backdated to 4 March 2012.  A parole eligibility order was made.

The counts on which the appellant was convicted

1. The counts on which the appellant was convicted alleged:

   (3)On a date unknown between 26 August 2006 and 27 August 2007 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his finger

   And that [the complainant] was a child under the age of 16 years.

   (4)On the same date and at the same place as in Count (3) [the appellant] again sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

   And that [the complainant] was a child under the age of 16 years.

   (5)On or about 8 June 2007 at … [the appellant] again sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his finger

   And that [the complainant] was a child under the age of 16 years.

   (6)On a date unknown between 21 September 2007 and 23 September 2008 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

   And that [the complainant] was a child under the age of 16 years.

(7)On a date unknown between 31 May 2010 and 27 August 2010 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

And that [the complainant] was a child under the age of 16 years.

(8)On a date unknown between 30 September 2010 and 9 October 2010 at … [the appellant] attempted to sexually penetrate [the complainant], a child who he then knew to be his de facto child, by attempting to introduce his penis into her mouth

And that [the complainant] was a child under the age of 16 years.

(9)On or about 30 May 2011 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

And that [the complainant] was a child under the age of 16 years.

(10)On or about 6 June 2011 at … [the appellant] sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his finger

And that [the complainant] was a child under the age of 16 years.

(11)On the same date and at the same place as in Count (10) [the appellant] again sexually penetrated [the complainant], a child who he then knew to be his de facto child, by penetrating her vagina with his penis

And that [the complainant] was a child under the age of 16 years.

1. The complainant was born in August 1995.

The facts and circumstances of the offending

1. The facts and circumstances of the offending are set out in the reasons of Pullin JA.  I will not repeat them except to the extent necessary to explain my reasons.

Appeal against conviction:  grounds of appeal

1. The appellant relies on two grounds in his appeal against conviction.

2. Ground 1 alleges that the primary judge erred by allowing, over objection, the introduction into evidence of inadmissible and prejudicial material that could not be cured by any direction.

3. Ground 2 alleges that fresh evidence, obtained after the trial, establishes that 'a miscarriage of justice occurred when the appellant was convicted'.

4. On 12 June 2013, Mazza JA referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

5. The appellant, in his orders wanted, claims:

   (a)on the basis of ground 1, the setting aside of the judgments of conviction and a new trial; and

   (b)on the basis of ground 2, the setting aside of the judgments of conviction and the substitution of judgments of acquittal.

Appeal against conviction:  ground 1

1. On 7 June 2011, the complainant reported the alleged offences to the police.

2. The appellant was charged and released on bail, subject to conditions.  One of the conditions prohibited him from contacting the complainant.  The appellant went to live with his uncle and aunt.  The State contended that, while living with them, the appellant, in breach of his bail conditions, contacted the complainant on Facebook, using the false name 'Tony Frederick'.  The appellant gave her a mobile telephone number and asked her to call him.  The complainant reported the incident to the police.  They arranged for the complainant to telephone the number for 'Tony Frederick' on at least three occasions.  The calls were recorded.  The complainant identified 'Tony Frederick' as the appellant.

3. On 4 August 2012, the complainant called 'Tony Frederick' when the appellant was with his uncle and aunt.  The appellant told them the complainant was calling him.  They advised him not to talk to her.  The appellant ignored their advice.  He spoke to the complainant while he was in his uncle and aunt's home.  He then left their house and spoke again to the complainant by telephone.  That night, the police seized a mobile telephone from the uncle and aunt's home.  The SIM card in the telephone had the same number as that given by 'Tony Frederick' to the complainant on Facebook.  The appellant was re‑arrested.

4. The appellant's bail was revoked and he was remanded in custody at Hakea Prison.  He was also charged with breach of bail.

5. During one of the 'pretext' telephone conversations, the following exchange occurred:

   [Complainant]:    How do you expect me to be alright after what you did?

   [Appellant]:        I'm sorry.

   [Complainant]:    Why, why did you do it?

   [Appellant]:        I don't know.

   [Complainant]:    You don't know.  You can't just say you don't know.

   [Appellant]:        I love you.

6. Prior to his re‑arrest and remand in custody, the appellant had lived with his uncle and aunt for about two months.  During that time the uncle and aunt asked him whether he had committed the offences.  The appellant told them that if it did happen, he could not remember it, and as far as he was concerned it did not happen.

7. After his re‑arrest for breach of bail, the uncle and aunt visited the appellant in prison on a number of occasions.  They asked the appellant to tell them if the complainant's allegations were true.  Initially, the appellant denied the allegations, but during a later visit he admitted having had sex with the complainant.  He said, however, that because the sexual interaction did not happen on the particular night alleged by the complainant, he was pleading not guilty.

8. While he was remanded in custody, the appellant was also visited by his mother.  She said the appellant admitted having had sex with the complainant.  He told her it had reached the stage when all he had to do was go into the complainant's room, touch her on the shoulder and she would have sex with him.

9. The State alleged at the trial that during one of the 'pretext' telephone conversations the appellant made an implied admission.  The State contended the jury should find that it was the appellant who was speaking to the complainant during the conversation.  It also contended the jury should infer that, by saying 'sorry' to the complainant, the appellant was admitting that he had been in a sexual relationship with her.

10. The appellant's uncle, aunt and mother were State witnesses at the trial.  The State relied on their evidence to prove the appellant's alleged admissions against interest when they visited him in prison.

11. Prior to the commencement of the trial, defence counsel objected to the State leading evidence to the effect that the alleged admissions by the appellant to his uncle, aunt and mother were made while he was in Hakea Prison.  It was submitted that the evidence of the location of the conversations in question was prejudicial to the appellant, and the prejudicial effect of the evidence exceeded its probative value.

12. The primary judge ruled that the fact the conversations between the appellant and his uncle and aunt took place while the appellant was in custody on remand was admissible and could be adduced by the prosecutor (ts 133 ‑ 134).  Her Honour's reasons were as follows:

    (a)It was 'inextricably bound up' in the evidence of the uncle and aunt that the conversations occurred at Hakea Prison (ts 131).

    (b)The gist of the evidence of the uncle and aunt was that when they first heard of the complainant's allegations they had a conversation with the appellant and they generally accepted his assurance that he did not have sex with her (ts 132).

    (c)As a result of the appellant breaching his bail conditions by contacting the complainant, the police arrived at the uncle and aunt's home.  The uncle and aunt were present when the conversation between the appellant and the complainant occurred on that day in their house (ts 132).

    (d)It was better for the jury to hear the reason why the appellant was in prison, when he made the alleged admissions to his uncle and aunt, in that the reason for his incarceration was not 'hugely prejudicial' and it was better to tell the jurors the true circumstances rather than 'allow them to speculate as to why [he] might be in prison' (ts 132).

    (e)When the appellant was in custody on remand, the uncle and aunt changed their attitude towards him. Instead of accepting his initial assurance that he had not had sex with the complainant, they confronted him and urged him to tell the truth (ts 132 ‑ 133).

    (f)After this confrontation, the appellant made the admissions on which the State sought to rely (ts 133).

    (g)In her Honour's view, it would be 'unduly superficial, indeed quite impossible, for the witnesses to give evidence of those conversations' without an account of the chronology of events leading up to the alleged admissions (ts 133).

    (h)Her Honour accepted there would be some prejudice to the appellant, but the prejudice would not be 'high' and it would be 'entirely curable by direction' (ts 133).

13. After making her ruling in relation to the evidence of the uncle and aunt, the primary judge made the same ruling in relation to the evidence of the appellant's mother (ts 134).

14. In my opinion, evidence of the appellant's initial release on bail, the conditions of the bail, the revocation of the bail, and the appellant's incarceration when he had the critical conversations with his uncle, aunt and mother, were part of the factual matrix in which those conversations occurred and, also, were relevant to the jury's assessment of the 'pretext' telephone conversations between the complainant and the appellant. 

15. The State submitted that the jury should infer from the content of one of the telephone conversations that the appellant was apologising to the complainant for the sexual abuse.  The defence contended that the appellant was in fact apologising for something completely different; that is, for something unrelated to any sexual misconduct. 

16. The circumstances of the contact between the appellant and the complainant, the revocation of his bail, the uncle and aunt's objection to the appellant communicating with the complainant, and the later conversations between the appellant and his uncle, aunt and mother while he was in custody, provided relevant context which facilitated the jury's evaluation of whether the appellant was apologising to the complainant for the alleged sexual abuse and whether the appellant in fact made the alleged admissions to his uncle, aunt and mother after the revocation of his bail.

17. The primary judge did not err by permitting the prosecutor to adduce evidence that the appellant had breached his bail conditions and that some of the conversations with his uncle, aunt and mother had occurred in Hakea Prison.  The evidence was relevant and had probative value.

18. Further, any prejudice to the appellant arising from the evidence as to his breach of bail and remand in custody was capable of being guarded against adequately by a direction to the jury.

19. The primary judge directed the jury, in her summing up, as follows:

    You heard the evidence about his bail conditions in order to make sense of the Facebook and the phone call evidence.  And you heard evidence about his losing bail, also to make sense of the evidence about conversations people have said they had with the accused once he was in custody.  So it's a part of the story of the investigation and you wouldn't have understood the evidence without understanding what had happened in relation to the bail.  But the mere fact that he lost his bail, doesn't tell you anything about whether or not he is guilty of the charges on this indictment (ts 582).

20. Defence counsel did not seek any additional direction or redirection from her Honour on this point (ts 638).

21. As Gleeson CJ and Gummow J observed in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414, the Australian criminal justice system, as administered by its appellate courts, requires the assumption that 'as a general rule, juries understand, and follow, the directions they are given by trial judges' [13].

22. In the present case, the primary judge instructed the jury, with clarity, that the fact the appellant had 'lost his bail' and was remanded in custody did not tell the jury anything about his guilt or innocence in relation to the charges in the indictment (ts 582).  The jury would have readily understood that the appellant's breach of his bail conditions and his remand in custody were irrelevant in determining whether he had committed any of the alleged offences.  There is no reason to suppose that the jury did not follow, or might not have followed, her Honour's directions.  No perceptible risk of a miscarriage of justice arose at the trial because of the matters complained of in ground 1.

23. Ground 1 fails.

Appeal against conviction:  ground 2:  this court's power to admit additional evidence in an appeal

1. Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:

   For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

   (a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

   (b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

   …

   (d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

   (e)admit any other evidence.

1. Other useful illustrations of the application of the principles to particular facts may be found in Bryer v The Queen (1994) 75 A Crim R 456 and R v DD [2005] VSCA 308.

Appeal against conviction:  ground 2: its merits

1. On 4 November 2013, the complainant gave sworn evidence in the appeal.  She said the evidence she gave on 27 and 30 April 2012 at the appellant's trial in relation to the alleged sex offences was false.

2. The complainant told this court that she had sex with the appellant on only one occasion.  She had drugged the appellant by crushing a sleeping pill and depositing it, without his knowledge, in his beer.  She had then placed a condom on the appellant's penis and had sex with him. 

3. In a letter dated 16 August 2012 from the complainant to the primary judge, the complainant asserted, in substance, that:

   (a)In 'March or April' of an unspecified year, at the suggestion of a girl, B, who was about her age and who was then her friend, the complainant drugged the appellant by crushing a sleeping pill into his beer.  She then placed a condom on his penis and had sex with him.

   (b)Later, the complainant flushed the condom down the toilet.

   (c)The following day the complainant told the appellant what she had done, and said if he did not act in accordance with her wishes she would tell the police he had raped her.

   (d)The complainant had been induced by B to act in this manner towards the appellant after B had told her that she had had sex with her stepfather, SPG, while he was intoxicated by drugs, in order to extort money and property from him later.

   (e)When the complainant told B that she had had sex with the appellant, B suggested the complainant could derive a monetary benefit by making a false report to the police.

   (f)After she reported the alleged offences to the police and she was caught up in the lie, the complainant found it too difficult to extricate herself from the situation she had created.

   (g)The appellant and SPG (B's stepfather who B had accused of raping her) were innocent.

4. On 26 September 2012, the police arrested the complainant and informed her that she was suspected of having perverted the course of justice.  During a video‑recorded interview, the complainant confirmed she had written and signed the letter to the primary judge.  She said she had written the letter partly at her mother's house and partly while she was travelling on a bus to Rockingham.  The complainant said she had been living at her mother's house since about the beginning of August 2012, but she and her mother did not really speak about the appellant's offending.  The complainant told the police she had spoken to the appellant on the telephone once or twice since his sentencing.  She had apologised to him.  The complainant repeated in substance the version of events set out in the letter to the primary judge and confirmed to the police that this was the only occasion on which she had had sex with the appellant.  When pressed for further details at the interview, the complainant became upset and asked to speak to a lawyer.  The complainant has not been charged with any offence arising from her conduct.  

5. The complainant's recantation in her sworn evidence in the appeal, her letter to the primary judge and the video‑recorded interview on 26 September 2012 constitutes fresh evidence. 

6. A number of inconsistencies are apparent between:

   (a)the letter from the complainant to the primary judge, on the one hand, and the complainant's statements to the police in her video‑recorded interview on 26 September 2012, on the other; and

   (b)the complainant's account of events in her letter to the primary judge and in her video‑recorded interview on 26 September 2012, on the one hand, and her evidence in the appeal, on the other.

7. The most important inconsistencies concern:

   (a)the number of sleeping pills she allegedly crushed and deposited in the appellant's beer;

   (b)whether the appellant was asleep or unconscious when she had sex with him, the complainant having been cross‑examined as to how she managed to have sex with the appellant if he was asleep or unconscious as a result of the sleeping pills; and

   (c)what she did with the condom after she had sex with him.

8. For example, in her letter to the primary judge, the complainant said she had disposed of the condom, after having sex with the appellant, by flushing it down the toilet.  In her video‑recorded interview on 26 September 2012, the complainant said that, after having sex with the appellant, she kept the condom in a drawer for about a week and then disposed of it by placing it in a neighbour's rubbish bin.  In her evidence to this court, the complainant asserted that what she had told the police in her video‑recorded interview about the disposal of the condom was untrue.

9. The letter from the complainant to the primary judge is also inconsistent in some respects with the complainant's evidence at the trial of SPG, who, as I have mentioned, was B's stepfather.  SPG had been charged with a number of sex offences against B.  The complainant's account in the letter to the primary judge was inconsistent with her evidence at SPG's trial.  There were material discrepancies as to:

   (a)when the complainant had an alleged conversation with B in which B allegedly admitted falsely implicating SPG in the alleged sex offences against her, and extorting money and property from him; and

   (b)when B allegedly had sex with SPG, while he was intoxicated by drugs, so as to establish a foundation for the extortion, relative to when B complained to the police about the alleged sex offences by SPG.

10. On 8 August 2012, when she gave evidence as a defence witness at SPG's trial, the complainant alleged that B had admitted she had had sex with SPG, while he was intoxicated by drugs, in order to extort money and property from him later.  The complainant did not, in her evidence at SPG's trial, suggest that she had been induced by B to act in a similar manner with the appellant.  Indeed, the complainant said at SPG's trial that her motive in revealing B's alleged admission to her was, at least in part, that the complainant felt B was making a mockery of real victims of sexual abuse, including herself (that is, the complainant).  The complainant also said at SPG's trial that she had become friends with B because they had a number of things in common, including what the complainant had believed was a similar history of sexual abuse.

11. Despite the complainant's evidence at SPG's trial, SPG was convicted.  He received a total effective sentence of 12 years' imprisonment.  SPG did not appeal against his conviction.

12. The complainant sought, in her evidence in the appeal, to explain the inconsistencies to which I have referred.  The explanations she offered were not reasonable or credible.  I reject them.

13. The complainant was sometimes hesitant and frustrated while giving evidence before this court.  During cross‑examination she was occasionally evasive about important matters of detail.  Her hesitation and frustration indicated she had not properly reflected upon the details of her fresh evidence.   These features of her evidence are congruent with the recantation having been fabricated.

14. After she reported the alleged offences to the police on 7 June 2011, and gave the police an account of the offending, the complainant's relationship with her mother fractured.  The mother supported the appellant.  The complainant was excluded from the family home.  She went and lived with a relative for some time.  Later, she lived with a woman, CK, who was SPG's partner.  The complainant gave a handwritten statement dated 26 July 2012 to SPG's lawyers in connection with the charges against him.  The statement undermined the State's case (in particular, B's allegations).  At all material times, CK was supportive of SPG.

15. When she sent the letter dated 16 August 2012 to the primary judge, the complainant had resumed living with her mother.  The complainant desperately wanted to re‑establish her family unit.  Her mother, who had almost died in a motor vehicle accident in about July 2012, remained supportive of the appellant. 

16. At the hearing of the appeal, I asked the complainant a number of questions including the following:

    [Did] you have much contact with your mum during the time you were homeless:  living in the park?‑‑‑Not really. Like, me and her had a falling out, and ‑ I ‑ we still, like, used to talk and stuff but, like, we didn't really ‑ we weren't close.

    All right.  And it was really important to you, was it, to patch things up with your mum after she nearly died in the car accident and get back with her and start living with her again?‑‑‑I wasn't really worried about it, like, at first.  Like ‑ but then when I found out that she had been in a car accident and that she nearly died I thought, like, blood's thicker than water and life's too short to keep a grudge against her, so I decided that my mum was more important than the feud that was going on.

    So you gave up your grudge and you had the prospect of a family life with your mum and your sisters at home?‑‑‑I never thought that would really be a family again, but it's ‑ it's still not the same but it's ‑ we've gotten a lot ‑ a lot better.  Like, me and mum we're close and I got my little sisters, so ‑ ‑ ‑

    And that's important to you?‑‑‑Yes.  My sisters are probably the most important thing to me in the world (91).

17. In these circumstances, the complainant had a powerful motive to fabricate her recantation with a view to securing the release of the appellant from custody and his reunion with her mother.  The recantation involved the complainant drawing upon and embellishing the story she had created in relation to B's alleged admission.

18. The complainant's recantation is in stark contrast with the evidence of a number of State witnesses at the appellant's trial.  In particular:

    (a)The appellant's uncle gave evidence that after the appellant was charged with the offences against the complainant, the appellant resided with him and his wife until he was re‑arrested for breach of bail.  The uncle said that while he resided with them, the appellant denied the offending.  However, after he was remanded in custody, the uncle and his wife visited the appellant and pressed the appellant to tell them the truth.  At the trial, both the uncle and his wife gave evidence that on their second visit while the appellant was in custody, the appellant admitted having had sex with the complainant, but asserted that because the sex had not happened on the night alleged by the complainant, he was pleading not guilty.  The uncle and his wife maintained under cross‑examination the truth of their evidence as to the appellant's admissions.

    (b)The appellant's mother gave evidence that she visited the appellant on two occasions while he was in custody.  She said the appellant admitted having had sex with the complainant.  The appellant told her that it had reached the stage when all he had to do was go into the complainant's room, touch her on the shoulder and she would have sex with him.  The mother maintained under cross‑examination the truth of her evidence as to the appellant's admissions.

    (c)At the sentencing hearing, the primary judge said she accepted the evidence of the uncle, his wife and the mother that the appellant had admitted having sex with the complainant.  Her Honour was of the view that the evidence of the uncle and aunt about the appellant's admissions was 'compelling' (ts 688).

    (d)A male friend of the appellant gave evidence that, at a party about three years previously, the appellant, who was intoxicated, had looked at the complainant and told the male friend, 'I get to tap that every night', meaning that he was having sex with the complainant whenever he wanted to.

    (e)The primary judge said at the sentencing hearing that the male friend's evidence 'rang true' and she accepted it (ts 688). 

    (f)There was evidence at the trial that the complainant's mother had failed to protect her from the appellant's predations and had actively discouraged her from complaining about the appellant's misconduct.  This dynamic between the complainant and her mother resulted in the complainant remaining silent about or positively denying the appellant's sexual abuse in two interviews with the authorities in 2005 and 2010.  The complainant was pressured by her mother to remain silent.

    (g)The complainant's maternal grandmother was a defence witness at the trial.  She said she had never heard the complainant allege that the appellant was touching her inappropriately or in a sexual manner.  The prosecutor cross‑examined the grandmother about a time when the family lived in a Western Australian country town and representatives of the Department for Community Development and the police came to their home and carried out an investigation.  The grandmother was unable to recall this event.  However, on 13 October 2005, the grandmother had given a statement to the police in which she said the complainant had told her that when the appellant was 'blue drunk' he 'put a finger in her' (ts 526).  Eventually, the grandmother agreed with the prosecutor that she had made this statement, but insisted she could not actually recall the complainant having told her about this abuse.

    (h)The primary judge found at the sentencing hearing that the grandmother's evidence was 'patently evasive' and that the dynamics within the family were centred upon the complainant's mother maintaining her relationship with the appellant (ts 681).

19. I incline to the view that this court may take into account, in considering whether the complainant's evidence at the trial was supported by other apparently reliable evidence, the primary judge's findings at the sentencing hearing about the credibility and reliability of a number of the witnesses at the trial.  This is because the appellant alleges in essence that the absence of the complainant's recantation at the trial destroyed the evidential foundation of the State's case and occasioned a miscarriage of justice.  The issue was not, however, addressed by counsel at the hearing of the appeal.  In the circumstances (and favourably to the appellant), although I have referred to her Honour's findings at the sentencing hearing in relation to the evidence of a number of the witnesses, I will not take those findings into account in deciding whether the complainant's evidence at the trial was supported by other, apparently reliable, evidence.

20. At the sentencing hearing, a report dated 1 July 2012 from Dr Gosia Wojnarowska, a consultant psychiatrist, was received by the primary judge.  In her report Dr Wojnarowska said the appellant had admitted having had sex with the complainant three times when she was aged 11.

21. At the hearing of the appeal, the appellant did not dispute having had sex with the complainant on three occasions, but claimed he told Dr Wojnarowska that this occurred when the complainant was aged 15 and not when she was 11.

22. After making inquiries with Dr Wojnarowska, counsel for the State informed the court that the State was not able positively to dispute the appellant's assertion that he told Dr Wojnarowska that the complainant was aged 15, not 11, when he had sex with her.

23. On 5 November 2013, this court permitted the appellant (who elected not to give evidence at the trial) to give sworn evidence in the appeal.  However, the court directed that the appellant's examination‑in‑chief, cross‑examination and re‑examination be confined to the terms of his admission to Dr Wojnarowska (appeal ts 134). 

24. I accept the appellant's evidence at the hearing of the appeal to the extent he admitted having had sex with the complainant on three occasions when she was aged 15.  I do not accept that these were the only occasions when he had sex with her.  To the extent the appellant's evidence ranged beyond the limits imposed by the court, I reject it.

25. The appellant's admission on this point strongly indicates that the complainant's recantation is false.  As I have mentioned, the complainant asserted, in her evidence in the appeal, that she had sex with the appellant on only one occasion and in circumstances where she had drugged him.

26. In my opinion, the complainant's recantation is untrue.  Her evidence as to the recantation, in the letter to the primary judge, the video‑recorded interview on 26 September 2012 and before this court, is not credible, cogent or plausible.  I disbelieve the complainant's evidence that she had sex with the appellant on only one occasion.  I also reject her evidence that she had sex with the appellant in the circumstances she described.  The complainant did not offer a credible, cogent or plausible explanation for having given allegedly false evidence at the trial.

27. My reasons for concluding that the complainant's recantation is a fabrication are as follows.

28. First, the inconsistencies between the complainant's letter dated 16 August 2012 to the primary judge, on the one hand, and the complainant's statements in her video‑recorded interview on 26 September 2012, on the other.  Secondly, the inconsistencies between the complainant's account of events in her letter to the primary judge and in her video‑recorded interview on 26 September 2012, on the one hand, and her evidence in the appeal, on the other.  Thirdly, the inconsistencies between the complainant's letter to the primary judge and her evidence at SPG's trial.  Fourthly, my rejection of the complainant's explanation, in her evidence in the appeal, of the inconsistencies.  Fifthly, the complainant's powerful motive to fabricate her recantation.  Sixthly, the stark contrast between the complainant's recantation and the apparently reliable evidence of a number of State witnesses at the appellant's trial.  Seventhly, the appellant's admission at the hearing of the appeal that he had sex with the complainant on three occasions when she was aged 15.  Eighthly, the complainant's failure to offer a credible, cogent or plausible explanation for having given allegedly false evidence at the trial.  Ninthly, the complainant's hesitation, frustration and occasional evasiveness about important matters of detail while giving evidence to this court.

29. However, I am satisfied that the complainant was not an unreliable or untrustworthy witness at the appellant's trial.

30. As I have mentioned, the complainant had a powerful motive to recant her evidence at trial.  After she reported the alleged offences to the police on 7 June 2011, the complainant was in effect abandoned by her mother and grandmother and excluded from the family home.  She was separated from her younger siblings with whom she had a very strong emotional connection.  It is obvious that the mother was determined to maintain her relationship with the appellant at all costs, including to the detriment and exclusion of the complainant.  After she reported the alleged offences to the police, the complainant lived with a relative and with CK for some time, but was effectively homeless for a significant period.  In about late July 2012 or early August 2012, the complainant returned to the family home after her mother was involved in a serious motor vehicle accident.  When she wrote the letter to the primary judge, the complainant had resumed living in the family home for only a few weeks.  As at 4 November 2013, when she gave evidence in the appeal, the complainant's relationship with her mother had improved.  The complainant had been reunited with her younger sisters who were, as she put it, 'probably the most important thing to me in the world' (appeal ts 91).

31. The circumstances I have described convincingly explain the complainant's decision to recant her evidence at trial.  The recantation does not, in my opinion, taint the credibility or reliability of her evidence at trial.  My examination of her evidence at trial, and her video‑recorded interviews prior to the trial, reveals broad consistency in her account of the offending.  Further, her evidence at trial, and in the video‑recorded interviews prior to the trial, was supported by a strong body of evidence from other, apparently reliable, witnesses called by the State.  A miscarriage of justice has not occurred.  The convictions are not unsafe.

1. Ground 2 fails.

Appeal against conviction:  conclusion

1. I would grant leave to appeal on grounds 1 and 2.  However, both of the grounds fail.  The appeal against conviction must be dismissed.

Appeal against sentence

1. The appellant relies on two grounds in his appeal against sentence.

2. Ground 1 alleges that the total effective sentence of 12 years' imprisonment infringed the first limb of the totality principle.

3. Ground 2 alleges that the trial judge's sentencing discretion miscarried because she sentenced the appellant on the basis that 'the offences fell towards the upper end of the scale for such offending'.

4. On 12 June 2013, Mazza JA referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

5. Subject to the following comments, I agree with Pullin JA, generally for the reasons he gives, that grounds 1 and 2 are without merit.

6. A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error.  The first limb of the principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. 

7. I have considered a number of cases with at least some features comparable to the appellant's offending.  See, in particular, GHS v The State of Western Australia [2006] WASCA 42; KMB v The State of Western Australia [2010] WASCA 212; MAS v The State of Western Australia [2012] WASCA 36; CJF v The State of Western Australia [2012] WASCA 69; SWD v The State of Western Australia [2012] WASCA 76; MMC v The State of Western Australia [2012] WASCA 187; The State of Western Australia v FJG [2012] WASCA 206; ERA v The State of Western Australia [2013] WASCA 163; GHK v The State of Western Australia [2014] WASCA 19; and the decisions referred to in those cases. It is unnecessary to reproduce the relevant facts or the sentencing dispositions in the previous cases.

8. In the present case, the very serious nature of the appellant's offending is apparent from the following:

   (a)The offending began when the complainant was aged about 11 and persisted until she was about 15.

   (b)The complainant lost her virginity to the appellant when she was aged about 11.

   (c)The complainant experienced a pregnancy scare and ultimately had to take her own precautions against pregnancy.

   (d)The appellant was physically aggressive when the complainant resisted his advances.

   (e)The appellant used manipulation and intimidation to coerce the complainant and ensure her continued compliance with his demands.

   (f)The appellant ignored the complainant's distress when he had sexual intercourse with her.

   (g)The complainant suffered chronic emotional abuse in circumstances where it was plain, both to the complainant and the appellant, that if the complainant's mother had to choose between them, she would choose the appellant.

   (h)After the complainant reported the offences to the police, and the appellant was charged, the appellant breached protective bail conditions by contacting the complainant and attempting to manipulate her.

9. The offences against the complainant were not isolated incidents.  They were representative of an ongoing course of conduct.  The appellant cannot be, and was not, punished for offences with which he was not charged.  However, the appellant was not entitled to any mitigation on the basis that his moral culpability for the counts in the indictment was diminished because his behaviour on those occasions was uncharacteristic or an aberration.

10. The primary judge assessed that the appellant was at a low to moderate risk of reoffending.

11. There was little by way of mitigation.  The appellant had a dysfunctional childhood.  It was likely that there was a causal connection between his unsatisfactory upbringing and his offending behaviour.  The appellant had a commendable work history.

12. The appellant was aged 32 when the offending began.  He was 37 when sentenced.  Accordingly, the appellant was not youthful or inexperienced for sentencing purposes.

13. The offending was not impulsive.  It was sustained and repetitive.

14. The appellant did not have the mitigation that pleas of guilty would have brought.

15. The appellant had a prior criminal record.  His previous convictions include assaulting a public officer in May 2009, obstructing public officers in June 2009 and unlawful assault causing bodily harm in circumstances of aggravation in October 2010.  Although his prior criminal record did not aggravate the seriousness of his offending, it indicated that the appellant was not entitled to any leniency on the ground he was ordinarily of good character.

16. The appellant demonstrated an absence of remorse.  His stance of denial continued after his conviction for the offences.  He has refused to accept responsibility for his criminal behaviour.

17. In the circumstances, the primary judge was entitled to find that the appellant's overall offending fell towards 'the upper end of the scale' for offending of its type (ts 691).  The absence of multiple complainants, the absence of even greater depravity, the fact that the complainant did not actually become pregnant, the absence of physical force in committing the offences (apart from the force used in committing count 6), the absence of extensive grooming, inducements or threats, and the other matters relied on by counsel for the appellant do not undermine her Honour's characterisation of the overall offending or render it erroneous.  Those matters merely demonstrate that, as in virtually all offending of this kind, more serious offending can be imagined.  They do not diminish the egregious nature of what the appellant actually did.

18. Her Honour did not find that any of the individual offences fell within the 'worst category' for the purposes of the decision of the majority in BLM [43]. See, in relation to the majority's reasons in BLM and the totality principle, my analysis (Mazza JA agreeing) in GHK [46].

19. In my opinion, after taking into account the maximum penalties, the circumstances of the offending (including the vulnerability of the complainant) viewed as a whole, the total effective sentences imposed in prior cases with at least some features comparable to the appellant's offending, the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind, the appellant's personal circumstances and antecedents, and all other relevant sentencing factors, the total effective sentence of 12 years' imprisonment was not beyond the range open on a proper exercise of the sentencing discretion.  The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors.  No proper basis exists for inferring error from the sentencing outcome.

1. Leave to appeal on grounds 1 and 2 should be refused. The appeal against sentence is therefore taken to have been dismissed. See s 27(3) of the Criminal Appeals Act.

2. MAZZA JA:  I agree that each of these appeals must be dismissed. 

3. In relation to the appeal against conviction, I agree with the reasons of Buss JA.  His assessment of the credibility, cogency and plausibility of the complainant's recantations accords with mine.  I too am satisfied that the complainant was not an unreliable or untrustworthy witness at the appellant's trial.  The circumstances described by Buss JA explain why the complainant recanted her evidence at trial. 

4. With respect to the appellant's evidence, I accept his testimony that he had sex with the complainant on three occasions when she was aged 15.  But I do not accept his testimony that these were the only occasions upon which he had sex with the complainant.

5. In relation to the appeal against sentence, I agree with the reasons of Pullin JA and the additional comments by Buss JA.