Brown v The State of Western Australia
[2024] WASCA 106
•6 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROWN -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 106
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 21 AUGUST 2024
DELIVERED : 6 SEPTEMBER 2024
FILE NO/S: CACR 40 of 2024
BETWEEN: CHRISTOPHER PHILIP RONALD BROWN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 42 of 2024
BETWEEN: CHRISTOPHER PHILIP RONALD BROWN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 103 of 2023
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration without consent - Where appellant made partial admissions in police interview and sought to explain his conduct - Where part of the explanation said to be unfairly prejudicial to the appellant - Where trial judge gave directions as to the limited use that could be made of that part of the interview - Whether admission of the explanation and the directions of the trial judge caused a miscarriage of justice - Where DNA evidence did not include reference to part of the complainant's underwear - Whether verdict unreasonable or unsupported by the evidence
Criminal law - Appeal against sentence - Whether sentencing judge failed to take into account a relevant consideration, namely the appellant's personal circumstances - Whether sentencing judge took into account an irrelevant consideration, namely the appellant's prior criminal record - Whether sentence of 3 years 6 months' immediate imprisonment was manifestly excessive
Legislation:
Criminal Code (WA), s 325(1)
Result:
CACR 40 of 2024:
Leave to appeal refused
Appeal dismissed
CACR 42 of 2024:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 40 of 2024
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 42 of 2024
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Kabambi v The State of Western Australia [2019] WASCA 44
Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Pereira [2023] WASCA 162
The State of Western Australia v Porter [2008] WASCA 154
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Vartolo [2015] WASCA 53
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
JUDGMENT OF THE COURT:
The appellant was convicted after trial of one count of sexual penetration without consent contrary to s 325 of the Criminal Code (WA) (Code). He was sentenced to 3 years 6 months' immediate imprisonment. He seeks leave to appeal against both his conviction and his sentence.
The prosecution case was that the appellant placed his hand inside the complainant's jeans and penetrated her vagina with his finger whilst she was sleeping. The appellant did not dispute that he had placed his hand inside the complainant's jeans whilst she was sleeping but maintained that he had only touched her on the outside of her underwear and had not penetrated her vagina. Accordingly, the only issue at trial was whether penetration had occurred. There was no issue as to identity or lack of consent.
The complainant gave evidence that she had woken to a feeling of pain in her vagina. She said that her jeans were undone and the appellant had his hand inside her underwear. She said that she could feel a finger or fingers inside her vagina. That evidence was critical to the prosecution case.
The underwear of the complainant was tested for DNA. Evidence was given at the trial by a DNA expert that DNA consistent with that of the appellant, though to a low degree of probability, was found on the outside front and inside front (excluding the crotch) of the underwear. The appellant was excluded as a contributor in respect of a sample found on the inside crotch, outside back and inside back (excluding the crotch) of the underwear.
When interviewed by the police, the appellant gave an account of his conduct. He admitted to having touched the complainant but denied sexual penetration. His account included, by way of possible explanation, that he was intoxicated and that he may have inherited sexual deviance from his father.
There are three grounds of appeal against conviction. The first ground is that the trial judge made an error of law by not excluding the evidence of what the appellant said in the police interview regarding inheriting his father's sexual deviance. The second ground is that the trial judge erred in law in her directions to the jury regarding that evidence. The third ground is that the verdict of guilty was unreasonable because the evidence regarding DNA was unclear as to whether the testing of the outside front of the underwear excluded the crotch. In this regard, the appellant contends that the jury were left to speculate on an issue that was relevant to the determination of whether penetration had occurred.
There are three grounds of appeal against sentence. The first ground is that the sentence of 3 years 6 months' immediate imprisonment is manifestly excessive. The second ground is that the sentencing judge erred by failing to take into account a relevant consideration, namely the appellant's personal circumstances. The third ground is that the sentencing judge erred by taking into account an irrelevant matter, namely the appellant's prior criminal record.
For the reasons that follow, none of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused and the appeals against conviction and sentence should be dismissed.
Prosecution case
The appellant is a resident of New Zealand. In June 2022, he planned to travel to Western Australia for a holiday. He arranged to meet with a friend, SH, who was living here with his partner, the complainant. The appellant had not previously met the complainant.[1]
[1] ts 39.
The appellant arrived at Perth Airport in the early evening of 11 June 2022. He was picked up by SH and they drove to a house to change cars and then drove to Hillarys Marina, where SH kept a boat. The arrangement was for the appellant, SH and the complainant to have a meal together and sleep on the boat that night. The appellant was intending to hire a campervan and drive to the north of the State the next day.[2]
[2] ts 39.
After arriving at Hillarys Marina, the appellant, SH and the complainant sat at a dining table on the boat and ate fish and chips and drank alcohol. They all drank considerable quantities of alcohol. During the night, they moved between the dining room table and the back deck of the boat. At some point in the evening, the complainant fell asleep slumped on the dining room table with her head resting on her folded arms.[3]
[3] ts 39.
The complainant was woken the next morning by feeling the hand of a person down her pants and a pain in her vagina. Initially she thought that the person touching her was her partner, SH. However, when she looked up, she saw that the person touching her was the appellant. The complainant's jeans were undone and the appellant had his hand down the front of her jeans and inside her underwear. The complainant could feel the appellant's fingers moving inside her vagina.[4]
[4] ts 39.
The complainant was shocked and stood up. As she did so, the appellant's hand fell out of her jeans and he stood up and walked away without speaking. The complainant went to the toilet on the boat and did the buttons of her jeans up. She then went to the main bedroom and tried to wake up SH. She was unable to rouse him.[5]
[5] ts 39 - 40.
The complainant made herself a coffee, got dressed for work and then went out to the back of the boat. The appellant was there. The complainant could not look at him and lit a cigarette. The appellant asked for a cigarette and she gave him one. The complainant left to go to work at about 8.15 am.[6]
[6] ts 40.
Later that day the complainant told SH what had happened. SH sent a text message to the appellant asking if the appellant had something to say to him. The appellant responded the following day by text saying that he was sorry. The complainant reported the incident to the police a couple of days later.[7]
[7] ts 40, 88 - 89.
On 18 June 2022, the appellant was interviewed by police. During that interview, he admitted that SH had picked him up from the airport and driven him to the boat and that the complainant was there. He said he drank some beer and smoked methylamphetamine with SH. He had also drunk some whisky. He said that the complainant had fallen asleep on a couch where they had been sitting. He said that he woke up in the early hours of the morning and the complainant was sitting beside him on the couch. SH was about a metre away on a bed at the front of the boat. He said that he moved towards the complainant and unfastened the top button of her jeans and slid his hand between her jeans and her underwear. He said that he moved his hand up and down twice and then removed it. He then went to check on SH and saw that he was asleep. He went upstairs and fell asleep on a seat on the deck. He was woken by the complainant asking him if he wanted a coffee. He said that his level of intoxication had been high at the time.[8]
[8] ts 40 - 41
The appellant told police in the interview that the complainant had not reacted when he touched her, and he could not say whether she was awake or not. He accepted that she did not consent to being touched and that he was at fault. He claimed that his hand had been over the top of her vagina and over her underwear. He denied that he had penetrated her vagina. He said that after the complainant had asked him if he wanted a cup of coffee, he went back to sleep and a couple of hours later SH drove him to pick up a campervan.[9]
[9] ts 40 - 41.
The appellant told police that he received the text message from SH the next day. He claimed that he did not recall what had happened until he received that text but thereafter had gone over it many times in his mind and claimed that he then fully remembered the incident.[10]
[10] ts 41.
Evidence of the complainant
Before turning to the grounds of appeal, it is necessary to summarise the evidence of the complainant. That evidence was critical to the prosecution case and the jury were directed by the trial judge that they could not convict the appellant unless they were satisfied beyond reasonable doubt that the evidence given by the complainant regarding the act of penetration was true and accurate.[11]
[11] ts 189 - 190.
The complainant said that she was at the boat when SH and the appellant arrived at about 7.00 pm. They ate fish and chips together at the table in the kitchen area. She had a glass of wine and then they all had shots of whisky. She had about four shots but did not consider herself drunk. She fell asleep at the dining table with her head resting on her arms. No other person was sitting at the table at the time she went to sleep.[12]
[12] ts 50 - 51.
The complainant woke up at about 7.00 am. She was in the same place as when she had gone to sleep. She was then asked:[13]
[13] ts 52.
Now, to the best of your recollection, what's the very thing - first thing that you noticed when you woke up?---That someone had their hands down my jeans and knickers.
And what kind of jeans were you wearing? Well, did they have a zipper or buttons?---Buttons.
And what did you feel, if anything?---Sore. Felt sore. It was painful.
Painful where?---Up inside my vagina.
So you noticed that. What's the very next thing that happened?---I looked to my right. I saw [the appellant] sat there wide awake and staring at the wall ahead of him.
And what could you feel at that time?---I could still feel his hand there.
What do you mean by hand there?---His hand down my knickers and up my vagina.
And what could you feel up your vagina?---His fingers.
Did you know that it was [the appellant] at first, or not?---Not until - well, not until I looked and saw him.
What did you do when you saw that it was [the appellant]?---I stood up.
The complainant said that the appellant also stood up, took his hand away and went out to the back of the boat. He did not say anything. The complainant went to the toilet on the boat and did up her jeans.[14]
[14] ts 53.
The complainant then went to the bedroom area to find SH. That area was close to the kitchen but had a curtain, which was drawn. The complainant attempted to wake SH but was unsuccessful. She then got changed for work. She went out to the back of the boat and had a cigarette. The appellant was there and asked her for a cigarette, which she provided. She returned to the bedroom and made another attempt to wake SH, again unsuccessfully. She then left for work.[15]
[15] ts 53 - 54
The complainant reported the matter to the police on 14 June 2022. At the request of the police, she provided them with the clothes that she was wearing at the relevant time.[16]
[16] ts 54.
In cross‑examination, it was put to the complainant that the appellant had only touched her 'crotch area' on the outside of her underpants and that he had not put his fingers inside her vagina. The complainant disagreed. When it was put to her that, given that she was initially asleep, she could not be accurate about where the appellant was touching, the complainant said, 'Disagree. I think I know that his hand was, and his fingers were, in my vagina. I didn't mistake that'.[17]
[17] ts 66.
Appeal against conviction - grounds
The appellant is self‑represented, and his grounds are not in conventional form. In essence, his grounds against conviction are:[18]
1.The trial judge erred by failing to exclude the part of the police interview where the appellant spoke of inheriting his father's sexual deviance.
2.The trial judge erred by failing to properly direct the jury as to the use that could be made of that evidence.
3.The verdict was unreasonable because the jury did not have all of the relevant DNA evidence.
[18] Appellant's grounds of appeal (CACR 42 of 2024), filed 16 July 2024.
It is convenient to deal with grounds 1 and 2 together.
Appeal against conviction - grounds 1 and 2 - relevant evidence
When interviewed by the police, the appellant gave his account of events. In particular, he said that after receiving the text from SH, he had gone back over what had happened and remembered it 'vividly'. He then said the following:[19]
[D]uring that night I woke up in the early hours of the morning. I moved towards [the complainant], and she was sitting beside me on the couch.
[DETECTIVE SERGEANT] CURLEY: Uh‑huh.
[APPELLANT]: [SH] was about a metre away in the fore of the boat in ‑ in his bed. It's only a small boat. Um, I undid the top button on her jeans and slid my hand between her jeans and her pants - and her knickers.
[DETECTIVE SERGEANT] CURLEY: Uh‑huh.
[APPELLANT]: Um, where I moved my hand up and down twice and then removed my hand. I then went to check, and [SH] was asleep. So I went up the stairs and found a little foam squab seat to lie on and fell asleep there until she woke me up asking if I wanted a coffee. Um, during the whole time of my advances you could call it, whatever. It's not probably the right word, but my actions, she never once moved away from me, she never once tried to stop me. She didn't call out to her boyfriend who was right next to her, for any help. Um, so there was no pushing me away. There was no refraining me from, I put my hand down her pants. Um, and as I say, the charges I heard was penetration. That did not happen, 100 per cent adamant. I - I put my hand between her jeans and her knickers, and I moved my hand up and down twice, and I removed my hand and that's what I'm guilty of. And I did that. I take account [sic] for that, and I've been trying to deal with what made me do such a thing, 'cause it's way out of my character. Um, especially to a good friend of 30 years. Um, yeah, I'm - I'm ridden with self [loathing] and - and disgust over it all, to be fair. Uh, I can only imagine how she must feel, I don't know why she didn't stop me. It's none of my business, but uh, at any stage, if she wanted to, she could've, and he would've put me in hospital with a blink of a fucking eye. He's a - uh, you know, he's a pretty tough customer. And for me to do that in - in his presence like that just, sort of, shows what sort of frame of mind I was in. Um, I've tried to look for reasons as to why I did what I did 'cause it's not me. Um, and, all I've come up with in the last week is, um, my father was guilty of sexual deviancy, shall we say? And I think somehow he's passed that on to me in my blood, and I've had that side of me locked away, safe somewhere. And I think the psychosis of P mixed with alcohol somehow opened that door that night and led me to do what I did. It's only - I'm not a fucking doctor or anything, but it's the only sense I can make of it in my own head. Um, I - I'm so remorseful and so sorry. Um, that's exactly what happened. I - I know - I know in my soul that's exactly what happened. Um, I shouldn't have put my hand anywhere near her, but I did. Um, yeah, some - something that was unlocked inside me that I - like I say, I just put it down, it's the first and only time I've ever smoked P in my life. Uh, it's gotta be, it's - it's gotta have triggered something in my head to make me do that. I don't know. Um, I'm gonna go see a psychiatrist and shit when I got home. Um, I wasn't gonna hide this from anyone. I - I'd suffer the consequences - my friends will obviously disown me and fucking I'm a piece of shit for doing that. I - but I'll have to deal with it. I can't hide from it. (emphasis added)
[19] WA Police recorded interview, 18 June 2022, ts 7 - 8.
The reference to 'P' was clarified as being to methylamphetamine. The appellant claimed that SH had offered to share some methylamphetamine with him. He said that he had never used it before. He accepted the offer and smoked some methylamphetamine with SH. He attributed the effects of that drug and the alcohol to causing him to be disinhibited. SH denied in his evidence that any methylamphetamine was consumed.[20]
[20] WA Police recording interview, 18 June 2022, ts 10 - 11, 16.
Prior to the trial, defence counsel proposed some edits to the interview recording, including the portion in which the appellant had spoken of inheriting his father's sexual deviancy. At a pre‑trial hearing, defence counsel accepted that this passage could be interpreted as a 'type of admission'. Counsel then said:[21]
I suppose what I was saying is that, at that point, it sort of becomes a fork in the road and my concern was that there would be a real risk if the jury heard something like that, that he did have a parent who, you know, had been accused of those types of offences and he's created some, I suppose, unfounded or at least scientifically - uncorroborated view that it's in his DNA, it would be very difficult then for a jury to reconcile.
So I could understand how it was probative and relevant in terms of the admissions he makes for touching, but what I could not understand is how it would aid the jury in determining whether it was a touching or a penetration, and it was on that basis that I formed the view that it may have resulted in some improper propensity reasoning.
[21] ts 15 - 16.
The trial judge noted that the appellant's reference to his father formed part of his explanation to the police as to what he did and why he did it. Her Honour expressed the view that if the appellant wanted his explanation of his conduct to be before the jury he had to 'take the good with the bad'. Defence counsel appeared to accept this and did not pursue an application for this part of the interview to be excluded.[22]
[22] ts 16.
The record of interview was played to the jury during the prosecution case, including the part which is now contested. No objection was made to the admission of the interview recording.[23]
[23] ts 100 - 101.
The appellant gave evidence at the trial and was referred to the relevant part of the interview in his evidence in chief. He was asked:[24]
Okay. So when you spoke to police in that interview on 18 June, you have made a comment about your father's sexual deviancy and possibly being in your DNA. Are you able to explain why you said that?---Because I had - I think it [was] five days, but anyway - time to try and go over what I actually did do and look for reasons, what made me act the way I did. In my own mind, I - I just put that as a scenario, that somehow that may have been linked. Like I said, I'm not a doctor or a psychiatrist. It was just thoughts going through my head.
Were you being literal when you said that?---Honest?
Like, were you being literal? Like, were you using the term, 'It's in my DNA', literally? Or were you - - -?---I don't know that. No.
What did you - sorry. What did [you] say? 'No, I' - - -?---I don't know that it's in my DNA. Is that your - of course not.
So you weren't making the statement literally at all?---No.
[24] ts 132 - 133.
Appeal against conviction - grounds 1 and 2 - directions
At the conclusion of the evidence, defence counsel requested that the trial judge give directions as to how the jury could use this part of the police interview. The trial judge directed the jury in the following terms:[25]
In this trial you've heard the accused man provide possible explanations as to why he did what he did. Those explanations include the following: that he was intoxicated because of alcohol consumption, that he was - had ingested P or methylamphetamine and was affected by that. He also said that he may have done what he [did] because he was in a drug or alcohol, or combined psychosis, or that his father engaged in sexual deviancy and his father might have passed it on to him in his DNA.
Now, let me deal with each of those in turn, starting with his father's sexual deviancy, and that his father might have passed it on to [the appellant]. There is no evidence about this; no evidence that his [father] was some sort of sexual deviant. There is no evidence that even if there was sexual deviancy, such deviancy is passed on to the accused man in his DNA.
There is no evidence that the accused man's father's sexual deviancy had anything to do with the accused man's conduct relevant to this trial. So the only use you can make of that evidence is that it puts the accused man's admission into focus, noting that he was searching for an answer as to why he did what he did, there being no evidence of it.
So you can't misuse that, members of the jury, to think, 'Well, sexual deviancy runs in the family, and therefore he's guilty of the offence.' Because that would be wrong, and you cannot reason in that way. The evidence is simply before you because, as I said to you, you got to hear everything that was relevant and you got to see the accused man trying to find an explanation for what he did. But as I say, there's no evidence that sexual deviancy runs in the DNA or anything like it.
[25] ts 199 - 200.
Appeal against conviction - grounds 1 and 2 - the merits
The appellant submits that when he was arrested and interviewed, he was looking for reasons why he did what he admitted doing. It was in that context that he had referred to a possibility that he had inherited sexual deviancy from his father. He submits that the trial judge 'overruled' his lawyer and the prosecution by admitting the evidence. He submits that the evidence was unfair to him because it implied that 'the apple doesn't fall far from the tree'.[26]
[26] Appellant's grounds of appeal (CACR 42 of 2024), filed 16 July 2024.
In fact, as noted at [30] ‑ [31], defence counsel did not pursue an application for the evidence to be excluded. The trial judge did not make a ruling on the admissibility of the evidence. Nor was the trial judge requested to exclude the evidence because it was unfair to the appellant. In these circumstances the appellant must establish that the admission of the evidence caused a miscarriage of justice.
The evidence was relevant because it formed part of the appellant's volunteered account to the police of his conduct in relation to the complainant. The jury were entitled to assess his denial of penetration in the context of the whole of the explanation advanced by him. His explanation sought to suggest that behaviour of this type was so out of character that it could only be explained by intoxication and some hitherto unexpressed suppressed inherited trait. What was relevant was not what his father may or may not have done, but that the appellant advanced this as an explanation for what he admitted to doing. This could be viewed as an unconvincing attempt by the appellant to minimise responsibility for what he had in fact done. To selectively remove portions of that passage may have resulted in a misleading impression of what the appellant was saying and deprived the jury of evidence relevant to an assessment of the credibility of his account.
As to any possible prejudicial effect of the evidence, this needs to be viewed in light of the directions given by the trial judge. Any danger that the jury would misuse the information to reason that the appellant was more likely to have committed the offence alleged because his father may have committed acts of sexual deviancy was obviated by the trial judge's very clear directions. There is no perceptible risk that the jury would have misused the information contrary to the directions given by the trial judge.
As to ground 2, the appellant submits that the directions of the trial judge reminded the jury of the evidence, and this had the effect of swaying the jury against him. He also claims that in the summing up the trial judge 'scoffed' at the way in which he had answered questions in cross‑examination.[27]
[27] Appellant's grounds of appeal (CACR 42 of 2024), filed 16 July 2024.
It is not arguable that the directions caused any miscarriage of justice. Those directions were sought by defence counsel. They were entirely favourable to the appellant. It must be assumed that juries follow the directions of trial judges. If the directions were followed, there was no scope for prejudicial use of the evidence.
It is also important to recall that the case turned critically upon an acceptance by the jury of the truthfulness and reliability of the complainant's evidence. The complainant gave evidence that the appellant had penetrated her vagina with his fingers and that she had woken up feeling pain in her vagina. The trial judge directed the jury that unless they were satisfied beyond reasonable doubt that the evidence of the complainant in that regard was accurate and true, they could not convict. In this context, there was no scope for prejudicial use of the impugned evidence.
As to the suggestion that the trial judge made disparaging remarks about the appellant's evidence in the summing‑up, the appellant does not identify where any such remark occurred. Her Honour did not summarise the evidence of the appellant in her summing‑up and made no express reference to the way in which he answered questions in cross‑examination. Her Honour did refer to the appellant's evidence in the course of sentencing submissions, where she referred to him as being a very unimpressive witness and to his tendency to avoid answering questions. Those comments were made after the jury had been discharged.[28]
[28] ts 237.
Grounds 1 and 2 have no reasonable prospect of success and leave in respect of them should be refused.
Appeal against conviction - ground 3 - relevant evidence
Ross Hedley, the forensic DNA scientist from PathWest, gave evidence that:
1.A mixture of DNA from three people was recovered from the outside front of the complainant's underpants and, on analysis, the finding was that that mixture was 16 times more likely if the appellant was a contributor than if he was not a contributor.[29]
2.A mixture of DNA from three people was recovered from the inside front of the complainant's underpants (excluding the crotch) and, on analysis, the finding was that that mixture was seven times more likely if the appellant was a contributor than if he was not a contributor.[30]
3.A mixture of DNA from two people was recovered from the inside crotch of the complainant's underpants and the appellant could be excluded as a contributor to that mixture.
4.A mixture of DNA from three people was recovered from the inside front waistband of the complainant's jeans and, on analysis, the finding was that that mixture was 24 times more likely if the appellant was a contributor than if he was not a contributor.[31]
[29] ts 121.
[30] ts 122.
[31] ts 122.
Mr Hedley said that likelihood ratios could range between two to in excess of 100 billion in favour of a hypothesis. The ratios in this case were at the very lowest end of that scale. This meant that whilst it could not be ruled out that the appellant was a contributor, that possibility did not fit the pattern very well. The appearance that the appellant's DNA was a part of the mixture could be coincidental.
Appeal against conviction - ground 3 - jury questions
During their deliberations, the jury asked a question as to whether there could be sexual penetration through the outside of the complainant's underwear.[32] The trial judge directed the jury that the answer to their question was, 'Yes' provided that the penetration met the definition of sexual penetration as her Honour had explained it to the jury.[33] This direction was agreed to by defence counsel.
[32] ts 210.
[33] ts 211.
The jury also asked a question regarding the DNA findings and, in particular, whether the testing of the outer front of the underwear included the crotch area. The jury had the transcript of the evidence given by Mr Hedley. The evidence did not indicate whether the testing of the outer front of the underwear included or excluded the crotch area. Her Honour simply reminded the jury of what the evidence was.[34]
[34] ts 211, 216.
Appeal against conviction - ground 3 - the merits
The appellant submits that the testing of the outer front of the underwear must have excluded the crotch area and that this is apparent from the DNA report. He says that if this had been made clear to the jury it would have proven that his hand was never in the crotch area.[35] There are several flaws in this argument.
[35] Appellant's grounds of appeal (CACR 42 of 2024), filed 16 July 2024.
Firstly, the evidence was not that the testing of the outer front of the underwear excluded the crotch area. There was no evidence in that respect one way or the other. Further, the DNA report was not tendered and did not form part of the evidence at the trial. There is nothing to support the appellant's contention that the report showed that the testing of the front of the underwear excluded the crotch area.
Secondly, if the crotch area was excluded from the testing of the outer front of the underwear that would simply mean that there was no result for the outer crotch area. It would not mean that the appellant's DNA was not in that area. Nor could it support an inference that he had not touched that area.
Thirdly, the DNA findings were of very low probabilities. This was noted by Mr Hedley, who said that at such low readings, the possibility of a coincidental match could not be excluded.[36] Thus, the DNA evidence was of very marginal significance in any event. No reliance was placed by the prosecutor on the DNA evidence in his closing address. The jury were directed that they could not convict unless they were satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence.
[36] ts 121.
Fourthly, the appellant admitted to touching the complainant and the DNA evidence was equally consistent with both the prosecution and defence cases. The finding of DNA on the outer parts of the underwear was not a fact that could be viewed as being inconsistent with the prosecution case that penetration had occurred because it was open to the jury to find that penetration had occurred through the outside of the complainant's underwear.
The appellant raises no other issues in respect of the reasonableness of the verdict. Having regard to the evidence of the complainant, it was plainly open to the jury to be satisfied beyond reasonable doubt that an act of penetration had occurred. This ground of appeal has no reasonable prospect of success and leave in respect of it should be refused.
Appeal against sentence - grounds of appeal
In essence the grounds of appeal against sentence are as follows:[37]
1.The sentence of 3 years 6 months' immediate imprisonment was manifestly excessive.
2.The sentencing judge erred by failing to take into account a relevant consideration, namely the appellant's personal circumstances.
3.The sentencing judge erred by taking into account an irrelevant consideration, namely the appellant's prior criminal record.
[37] Appellant's grounds of appeal (CACR 40 of 2024), filed 16 July 2024.
The sentencing judge made findings of fact for the purposes of sentencing. As previously noted, the only issue at trial was whether penetration had occurred. The findings of fact reflected the summary of the prosecution case referred to earlier in these reasons. In these circumstances it is unnecessary to set out the findings again, although reference will be made to other parts of her Honour's sentencing remarks.
Appeal against sentence - personal circumstances
The appellant was born on 2 January 1970. Accordingly, he was 52 years old at the time of offending and 54 years old at the time of sentencing.[38]
[38] ts 252.
The appellant was born in Christchurch, New Zealand, where he has spent most of his life. His parents divorced when he was two years of age and he then lived with his mother and stepfather. He briefly lived with his biological father for a year when he was 16 years of age.[39]
[39] ts 252.
The appellant reported that he was above average academically at school and completed school to 16 years of age. After completing school, he worked for a year in the fisheries industry and then went on to become a qualified carpenter. He has consistently worked throughout his adult life in the building and construction industry, including as a foreman.[40]
[40] ts 253.
The appellant's family and friends reside in New Zealand. He has no support in this country. He has six children, four biological children and two stepchildren. Two of his biological children are 16‑year‑old twins. He was the primary caregiver for the twins at the time of the offence and since his imprisonment they have gone to live with their mother. He has been married twice and those relationships each lasted 7 ‑ 10 years. There is no acrimony between him and his former partners.[41]
[41] ts 253 - 254.
The appellant is in good physical and mental health. In the past he played rugby and other sports, and enjoyed outdoor activities such as camping, fishing and hiking.[42]
[42] ts 254.
After being charged, the appellant was bailed on a condition that he remain in Western Australia. He lived a reclusive lifestyle whilst on bail, living in shared housing and hostels.[43]
[43] ts 254.
The appellant reported that he has no history of substance or medication problems. He reported that he tried methylamphetamine for the first time on the night of the current offending. He reports that he does not have a major problem with alcohol or use any other medications or drugs.[44]
[44] ts 254.
The appellant has a criminal record in New Zealand. This includes offences of cultivating cannabis in 2010, theft in 1988 and being unlawfully in a building in 1987. It also includes 10 traffic offences between 1987 and 2006. Those offences include driving at a dangerous speed, operating a vehicle carelessly, driving whilst disqualified and driving with an excess blood alcohol reading. He also has a history of traffic offences in New South Wales, all of which occurred in 2002 and include multiple speeding offences and an offence of driving with a 'high range concentration of alcohol'.[45]
[45] ts 254.
Appeal against sentence - sentencing remarks
In her remarks on sentence, the sentencing judge highlighted the fact that the appellant told the police that whilst the complainant did not consent, she had not reacted or pushed him away or yelled out to her partner or done anything to stop him. Her Honour said that the appellant was, in effect, suggesting that the complainant was in some way acquiescing or consenting to his behaviour, in an attempt to reduce or absolve himself of responsibility. Her Honour noted that there was a simple explanation for why the complainant did not respond and that was because she was asleep.[46]
[46] ts 249.
The sentencing judge also noted that the appellant said that he did not remember what he had done until he received the text from SH the following day. Her Honour said that this suggestion was plainly unbelievable and the idea that he had no memory of the events and then developed a full memory after a brief text message that lacked any detail was unbelievable. Her Honour found that the appellant knew what he had done from the time he did it and that he sat back and waited to see if the complainant would say anything to anyone and if he would be called to account for his behaviour.[47]
[47] ts 250.
The sentencing judge found that whilst the appellant had admitted to part of the conduct, he had attempted to minimise responsibility by referring to the complainant's lack of response. Her Honour said that she found the complainant to be an honest, accurate and reliable witness and that the appellant would be sentenced on the basis that he inserted his finger into the complainant's vagina while she was asleep and unable to consent. It was that digital penetration that caused the complainant the pain that woke her up and caused her to stand up. Her Honour said that she did not need to determine how far the appellant's finger went into the complainant's vagina, how many fingers were used to commit that act of penetration or whether the finger or fingers penetrated her vagina over or under her underwear. Her Honour found that whatever was done was done with sufficient force and with a sufficient degree of penetration as to cause the complainant pain and wake her from sleeping.[48]
[48] ts 250 - 251.
The sentencing judge found that the complainant was vulnerable, having regard to the fact that she was asleep, had drunk heavily and was in what she believed to be a safe place. The appellant took advantage of that vulnerability. Her Honour noted that the complainant had provided a victim impact statement, which indicated the significant effect that this offending had had on her. That included being unable to continue work for about eight months, being financially reliant on her partner and being unable to enjoy the boat which she had previously regarded as a safe haven.[49]
[49] ts 251 - 252.
The sentencing judge noted that although the appellant was not using alcohol whilst in custody, his criminal record indicated an issue with alcohol in that he had a moderately bad traffic history. Her Honour said that this revealed a real problem with drink‑driving and related offending, though there were no convictions for offences of the kind that was presently being dealt with. Her Honour also noted that the appellant drank to excess on the night of the offending. She said that this suggested that the appellant was likely to have an issue with alcohol misuse. Her Honour also said that the appellant's criminal record revealed a 'disregard for the law, certainly the traffic laws, and for other members of our community'. She said that the appellant did not have the benefit of being a man of prior good character.[50]
[50] ts 247, 254 - 255.
The sentencing judge was not satisfied that the appellant was genuinely remorseful. Her Honour noted that after receiving the text message, the appellant did respond with a text saying he was sorry. However, her Honour said that this was counterbalanced by the numerous occasions that the appellant asserted that the complainant did nothing to stop him. Her Honour said that even though the appellant acknowledged his guilt of indecent touching, he did not accept that he had penetrated the complainant, and this meant that it was necessary for the complainant to give evidence recounting the events of the night. Her Honour said that any remorse the appellant felt related to the impact on himself and his family. She said that this was not relevant and did not represent genuine remorse for what the appellant had done to the complainant. Her Honour said that any remorse the appellant had expressed resulted in 'nothing significantly tangible'. Her Honour found that unless the appellant accepted full responsibility for his offending, he would remain a risk, though she could not say how great that risk was because there had been no meaningful assessment.[51]
[51] ts 255 - 256.
There were three character references, one from the appellant's mother and two from friends. These references attested to his good qualities as a son, father and partner and that the offence was out of character. The sentencing judge referred to these references and said that she had taken them into account.[52]
[52] ts 256.
The sentencing judge noted that the appellant would have to spend time in prison in circumstances that involved a greater hardship than other prisoners because his family and friends are not in Australia. Her Honour said that she would take this into account and also take into account that whilst the appellant had been on bail prior to trial, it had been difficult for him because he had to remain in this country and was separated from his family and friends.[53]
[53] ts 257.
The sentencing judge highlighted the following aggravating features:[54]
1.The complainant was asleep, minimising any chance that the appellant would get caught or meet any resistance.
2.The appellant only engaged in the conduct when the complainant's partner had left the room, leaving her alone.
3.The violation of the complainant was intimate and personal and the conduct was brazen.
4.The appellant had tried to minimise his offending conduct, both by suggesting that he only touched the complainant without penetration but also by suggesting that she did nothing to stop him.
5.The offending involved a 'gross breach of trust' of both SH and the complainant.
6.The offence had had a significant adverse impact on the complainant.
[54] ts 257.
The sentencing judge imposed a sentence of 3 years 6 months' immediate imprisonment. An order was made that the appellant be eligible for parole. Having regard to time the appellant had spent in custody prior to sentencing, the sentence was backdated to commence on 8 January 2024. A lifetime violence restraining order was made protecting the complainant.[55]
[55] ts 258.
Appeal against sentence - grounds 2 and 3
It is convenient to deal with grounds 2 and 3 first, as they allege express errors.
Ground 2 alleges that the sentencing judge failed to take into account the appellant's personal circumstances. In his submissions, the appellant refers to the fact that he had not committed an offence of this nature before, that this was the first time he had been imprisoned and that he had been separated from his family and friends for the 20 months he was on bail prior to being sentenced.[56]
[56]Appellant's grounds of appeal (CACR 40 of 2024), filed 16 July 2024.
The sentencing judge referred to the appellant's personal circumstances in some detail in her sentencing remarks. Her Honour made express reference to the fact that the appellant had no prior convictions for sexual offences. She also referred to the fact that the appellant had 'been on bail in Australia, which has been difficult for [him] because [he has] been separated from [his] family and friends'.[57]
[57] ts 254, 257.
Ground 3 alleges that the sentencing judge erred by taking into account the appellant's prior criminal history. In his submissions, the appellant states that his prior offences occurred many years ago and were mainly driving charges. He submits that his prior record did not support a conclusion that he had no consideration for the public.[58]
[58] Appellant's grounds of appeal (CACR 40 of 2024), filed 16 July 2024.
A prior criminal history is not an aggravating factor and does not increase the seriousness of an offence. There is no suggestion in the sentencing judge's remarks that she treated the appellant's criminal record as an aggravating factor. Her Honour viewed the criminal record as relevant in three ways. First, it tended to support other evidence that the appellant had a problem with managing alcohol. Secondly, it meant that the appellant could not claim good character. Thirdly, it showed a pattern of disrespect for the law, in particular traffic laws. Whilst the fact that all of the prior offending occurred more than 20 years ago reduced the weight to given to the appellant's criminal record, it did not make it irrelevant, and the appellant could not claim to be a person with prior good character.
The most significant use that the sentencing judge made of the criminal history was to note that the prior offending appeared to involve misuse of alcohol. That was a factor in the present offence, given that the appellant had drunk large amounts of alcohol and, on his own account, smoked some methylamphetamine. In his attempts to explain the offending, he referred to the alcohol and drug use and suggested that it may have disinhibited him. It was in this context that the sentencing judge noted that there were some indicators that the appellant has historically had issues with alcohol use. There was nothing inappropriate about using the prior record in that way.
Grounds 2 and 3 have no reasonable prospect of success. Leave in respect of them should be refused.
Appeal against sentence - ground 1
The relevant principles relating to appeals against sentence where there is a claim that a sentence is manifestly excessive are well established. Those principles have been stated many times and have been conveniently summarised in Kabambi v The State of Western Australia.[59]It is unnecessary to repeat them.
[59] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The maximum penalty for sexual penetration of another person without consent of that person (where the offence is not committed in circumstances of aggravation) is 14 years' imprisonment.[60]
[60] Section 325(1) of the Code.
It is well established that ordinarily a term of immediate imprisonment is the only appropriate penalty for offences contrary to s 325 of the Code. This is because the violation of human dignity, which is inherent in offences of sexual penetration without consent, makes such offending particularly serious.[61] Personal circumstances are of comparatively less weight in dealing with sexual offences.[62] The dominant sentencing considerations for sexual offences are punishment and general and specific deterrence.[63] There is no tariff for sexual offences, nor is there a specified starting point for each form of sexual penetration without consent. One form of sexual penetration is not necessarily any more or less serious than another. The seriousness of every offence of sexual penetration without consent must be determined by its own particular circumstances.[64]
[61] The State of Western Australia v Rayapen [2023] WASCA 55 [196]; Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 [281].
[62] See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320]; The State of Western Australia v Porter [2008] WASCA 154 [8] (Steytler P); The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [123] (Miller JA).
[63] Akizuki [123] (Miller JA).
[64] The State of Western Australia v HNU [2023] WASCA 6 [67].
As to the seriousness of the present offence, the appellant took advantage of the fact that the complainant was sleeping to sexually penetrate her vagina with his finger. This required him to approach her, undo her jeans and place his hand under at least her outer clothing. No question of consent arose, and the appellant's actions were a gross breach of the trust and hospitality that SH and the complainant had extended to him. The complainant felt some pain at the time and has suffered adverse psychological effects.
As to the appellant's personal circumstances, they were unremarkable. He had a good work history, favourable character references and a limited prior criminal history. However, he did not plead guilty and sought to minimise his offending by denying that penetration had occurred. The sentencing judge was not satisfied that the appellant was genuinely remorseful. Her Honour also found that the appellant had wrongly attempted to shift some blame for what occurred onto the complainant for not calling out or actively resisting.
The appellant submits that the sentence imposed on him was higher than in comparable cases involving less serious offending. He did not cite any comparable cases but noted that some cases had been referred to in the sentencing proceedings. The cases referred to at sentencing related to general principles rather than being relied on as being comparable to the present case.
It is unnecessary to refer in detail to the many cases which have considered sentences for offences of sexual penetration of an adult victim without consent. It is sufficient to note that the sentence imposed here is consistent with sentences imposed in those other cases. As examples we note the following cases: Musgrave v The State of Western Australia; The State of Western Australia v Vartolo;[65] The State of Western Australia v Rayapen; and The State of Western Australia v Pereira.[66]
[65] The State of Western Australia v Vartolo [2015] WASCA 53.
[66] The State of Western Australia v Pereira [2023] WASCA 162.
Having regard to the maximum penalty for this offence, the seriousness of the offence, the personal circumstances of the appellant and the guidance afforded by comparable cases, it is not reasonably arguable that the sentence in this case was manifestly excessive.
There is no merit in this ground of appeal and leave in respect of it should be refused.
Other issues
At the hearing of the appeal, the appellant suggested that in the event he is granted parole he will be taken from prison to an immigration detention centre and will be required to serve the balance of his sentence there, rather than being deported or serving parole in the community. He submitted that this was a factor that made his sentence harsher than would otherwise be the case.[67]
[67] Appeal ts 5.
The appellant provided no substantiation of this claim and there is nothing to support it. Unless the appellant sought to challenge his deportation, there is no reason to think that if he was granted parole, he would not be immediately deported to New Zealand. Clearly, no point would be served by requiring the appellant to remain in a detention centre for the period of his parole, only to be deported at the end of that period. In any event, this was not a matter raised before the sentencing judge.
Conclusion
There is no merit in any of the grounds of appeal in respect of either conviction or sentence. Leave to appeal in respect of each of the grounds should be refused and each of the appeals dismissed.
Orders
CACR 40 of 2024:
1.Leave to appeal refused.
2.Appeal dismissed.
CACR 42 of 2024:
1.Leave to appeal refused.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Research Associate to the Honourable Justice Hall
6 SEPTEMBER 2024
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