Carr v The State of Western Australia
[2016] WASCA 78
•16 MAY 2016
CARR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 78
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 78 | |
| Case No: | CACR:18/2015 | 4 DECEMBER 2015 | |
| Coram: | McLURE P MAZZA JA CORBOY J | 16/05/16 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | CACR 18 of 2015: Leave to appeal on proposed grounds 1 and 2 refused Appeal dismissed CACR 19 of 2015: Leave to appeal on proposed grounds 1 and 2 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL JAMES CARR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Offences of aggravated burglary, deprivation of liberty and aggravated sexual penetration without consent Appeal against conviction Whether a miscarriage of justice occurred due to the learned trial judge's alleged failure to fairly and adequately sum up the evidence of an expert witness Whether a miscarriage of justice occurred due to the learned trial judge's refusal to discharge the jury Whether the learned trial judge erred by not excluding evidence seized in the absence of a search warrant Criminal law Offences of aggravated burglary, deprivation of liberty and aggravated sexual penetration without consent Application for leave to appeal against sentence Whether the sentence imposed on one count of aggravated sexual penetration without consent was manifestly excessive Whether the total effective sentence breached the first limb of the totality principle |
Legislation: | Criminal Code (WA), s 324E, s 333, s 401(1), s 711 Criminal Procedure Act 2004 (WA), s 98 Evidence Act 1906 (WA), s 32 |
Case References: | Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 Challenge Plastics Pty Ltd v Collector of Customs (Vic) (1993) 42 FCR 397; (1993) 115 ALR 149 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Ghani v Jones [1970] 1 QB 693 Giglia v The State of Western Australia [2010] WASCA 9 Greer v Commissioner of New South Wales Police [2002] NSWSC 356; (2002) 128 A Crim R 586 Hill v The Queen [2003] WASCA 177 Mukevski v The State of Western Australia [2010] WASCA 138 Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 Prempeh v The State of Western Australia [2013] WASCA 150 R v Ireland [1970] HCA 21; (1970) 126 CLR 321 Rigby v The State of Western Australia [2005] WASCA 134 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 Tye v Commissioner of Police (1995) 84 A Crim R 147 Ugle v The State of Western Australia [2012] WASCA 104; (2012) 233 A Crim R 115 Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 Woodley v The State of Western Australia [2008] WASCA 92 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : CARR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 78 CORAM : McLURE P
- MAZZA JA
CORBOY J
- CACR 19 of 2015
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND 529 of 2014
Catchwords:
Criminal law - Offences of aggravated burglary, deprivation of liberty and aggravated sexual penetration without consent - Appeal against conviction - Whether a miscarriage of justice occurred due to the learned trial judge's alleged failure to fairly and adequately sum up the evidence of an expert witness - Whether a miscarriage of justice occurred due to the learned trial judge's refusal to discharge the jury - Whether the learned trial judge erred by not excluding evidence seized in the absence of a search warrant
Criminal law - Offences of aggravated burglary, deprivation of liberty and aggravated sexual penetration without consent - Application for leave to appeal against sentence - Whether the sentence imposed on one count of aggravated sexual penetration without consent was manifestly excessive - Whether the total effective sentence breached the first limb of the totality principle
Legislation:
Criminal Code (WA), s 324E, s 333, s 401(1), s 711
Criminal Procedure Act 2004 (WA), s 98
Evidence Act 1906 (WA), s 32
Result:
CACR 18 of 2015:
Leave to appeal on proposed grounds 1 and 2 refused
Appeal dismissed
CACR 19 of 2015:
Leave to appeal on proposed grounds 1 and 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms A C Longden
Solicitors:
Appellant : Patti Chong Lawyer
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Challenge Plastics Pty Ltd v Collector of Customs (Vic) (1993) 42 FCR 397; (1993) 115 ALR 149
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Ghani v Jones [1970] 1 QB 693
Giglia v The State of Western Australia [2010] WASCA 9
Greer v Commissioner of New South Wales Police [2002] NSWSC 356; (2002) 128 A Crim R 586
Hill v The Queen [2003] WASCA 177
Mukevski v The State of Western Australia [2010] WASCA 138
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
Prempeh v The State of Western Australia [2013] WASCA 150
R v Ireland [1970] HCA 21; (1970) 126 CLR 321
Rigby v The State of Western Australia [2005] WASCA 134
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
Tye v Commissioner of Police (1995) 84 A Crim R 147
Ugle v The State of Western Australia [2012] WASCA 104; (2012) 233 A Crim R 115
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
Woodley v The State of Western Australia [2008] WASCA 92
1 McLURE P: I agree with Mazza JA.
2 MAZZA JA: Before the court are the appellant's appeal against conviction and his application for leave to appeal against sentence.
Background
Facts of the offending
3 In the early hours of 6 March 1987, a man broke and entered unit 2, 19 McDonald Street, Kalgoorlie, which was at the time occupied by the victim, L, and her boyfriend. L was then 16 years old. She was alone and asleep in her bed. Her boyfriend had gone to work. The man detained L against her will. He threatened to kill her and he assaulted her. He pursued L when she tried to get away. He armed himself with an iron. The man twice sexually penetrated her against her will. Eventually, the offender fled the premises. The police were called and attended the scene within minutes. Apart from a general description, including that he was wearing light coloured singlet and shorts, L was unable to identify the offender.
Police investigation
4 The principal investigating officer was Senior Detective Murray Lampard. He was recalled to duty from home, and arrived at the crime scene not long after 1.00 am on 6 March 1987. After examining the scene, he went to the Kalgoorlie Regional Hospital where L had been taken. There, he collected various exhibits, including L's T-shirt that she had been wearing at the time of the offences.
5 At about 5.00 am, Senior Detective Lampard went off duty. He recommenced duty at about 8.00 am. He returned to unit 2, 19 McDonald Street and conducted a full examination of the crime scene during which he seized various items, including (at about 9 am) the pillowcases which had been on L's bed. Later that morning, Senior Detective Lampard attended a boarding house at 5 McDonald Street, Kalgoorlie. The boarding house was approximately 50 metres from L's unit. The two properties were accessible from the street and via a rear laneway. The landlady, Mrs Glasson, consented to the police being on the premises. It was common ground at trial that the appellant and his brother, Peter Carr, were residing at the boarding house at the time, although the appellant was not present when the police arrived.
6 As a result of something Mrs Glasson told him, Senior Detective Lampard's attention was drawn to some clothing hanging on the washing line in the rear yard. Senior Detective Lampard saw a singlet and a pair of shorts. Both items were wet and appeared to him to be blood-stained. Senior Detective Lampard seized the items, placed them in separate exhibit bags and took them with him back to the office of the Kalgoorlie Criminal Investigation Branch (CIB). An admission was made at trial on behalf of the appellant, pursuant to s 32 of the Evidence Act 1906 (WA), that the singlet and shorts belonged to the appellant, and that he had put them on the clothesline (ts 1010).
7 At the time of the seizure, Senior Detective Lampard did not have a search warrant, although subsequently, he obtained a search warrant pursuant to s 711 of the Criminal Code (WA) (Code). Later, the singlet and shorts (together with other items) were sent to the State Health Laboratory Services1 for forensic analysis. Nothing linking the appellant to the offences was discovered. The items were returned to Kalgoorlie CIB and put into storage.
8 Shortly after the commission of the offences, the appellant left Kalgoorlie and went to the Eastern States. No one was charged with any offence in connection with the attack on L for many years. In 2008, a DNA analysis of L's T-shirt was undertaken which linked the appellant to the offences. In the same year, the appellant declined to be interviewed by police. Further DNA testing occurred in 2013, concentrating on one of the pillowcases taken from L's bed and her T-shirt. DNA matching the appellant's was found on those items. The items were tested again in 2014 which confirmed the matches.
9 The appellant was interviewed by police on 21 February 2013 in New South Wales. He admitted that he lived with his brother at 5 McDonald Street in Kalgoorlie at the material time. He said that he knew 19 McDonald Street, but he had not been inside. When the allegations were put to him, he said that he had no recollection of them. He was unable to explain why he left Kalgoorlie. He told police 'I just woke up and I was on this [eastern] side of Australia' (combined blue and green AB 37).
The charges against the appellant
10 The appellant was extradited to Western Australia and was later charged on indictment in the District Court with breaking and entering a dwelling with intent to commit an offence at night, contrary to s 401(1) of the Code (count 1); unlawfully detaining L against her will, contrary to s 333 of the Code (count 2); sexually penetrating L without her consent by introducing his penis into her mouth in circumstances of aggravation, being that he did bodily harm to L and was armed with an offensive instrument, namely an iron, contrary to s 324E of the Code (count 3); and sexually penetrating L without her consent, this time by penetrating her vagina with his penis in the same circumstances of aggravation as the previous offence, again contrary to s 324E of the Code (count 4).
The appellant's trial and sentencing in the District Court
11 Prior to his trial, the appellant sought to exclude the evidence of the seizure of the singlet and shorts from 5 McDonald Street, Kalgoorlie, on the basis that the police had no search warrant at the time of their seizure. On 25 September 2014, Goetze DCJ dismissed the appellant's objection and allowed the State, in the exercise of his Honour's discretion, to adduce the evidence of the singlet and shorts.
12 There was no dispute at trial that someone had attacked L as she described and had committed the alleged offences. The sole question for the jury with respect to each charge was whether the State had proved beyond reasonable doubt that the offender was the appellant. The State's case on identity was circumstantial - it relied on the combination of a number of factors to prove the element of identity, including:
(a) L's general description of the offender being consistent with the appellant's appearance at the time;
(b) the fact that the appellant lived in very close proximity to L's unit and had the opportunity to commit the offences; and
(c) the DNA evidence relating to L's T-shirt and the pillowcase.
13 The State did not allege that the appellant's post-offence conduct constituted an implied admission of guilt.
14 At trial, the State called a forensic scientist employed at PathWest, Ms Penny Cooper, to give DNA evidence. I will refer to her evidence in greater detail later in these reasons. In the course of her evidence, Ms Cooper said that a partial DNA profile she obtained from L's T-shirt matched a DNA profile said to belong to 'an offender' on the 'National DNA Database' obtained from a laboratory in New South Wales, namely, the appellant (ts 719). Defence counsel applied to the trial judge to discharge the jury. She argued that the reference to the appellant as 'an offender' was so prejudicial to him that no direction could cure it. His Honour refused the application (ts 780).
15 The appellant exercised his right not to testify in his defence. His defence was conducted on the basis that he was not the offender. The defence case focused primarily on the reliability of the State's DNA evidence. It was suggested that the items with DNA that incriminated the appellant may have been contaminated at various points by the police or in the laboratory in the many years that elapsed between the commission of the offences and trial. In support of his case, the appellant called expert evidence from a former senior police officer, Professor Haydn Green, and a forensic biologist, Dr Paula Hallam. Dr Hallam is a former employee of PathWest.
16 On 22 October 2014, the jury found the appellant guilty on all counts as charged (ts 1085 - 1087).
17 On 21 January 2015, the appellant was sentenced to 1 year 6 months' imprisonment on count 1; 2 years' imprisonment on count 2; 4 years' imprisonment on count 3 and 6 years 6 months' imprisonment on count 4. His Honour ordered that the sentences on counts 1 and 4 be served cumulatively, and that the other sentences be served concurrently. Thus, the total effective sentence was 8 years' imprisonment. The appellant was made eligible for parole, and the sentences were ordered to commence on 8 February 2013.
18 I turn to the appeal against conviction.
The appeal against conviction
19 The appellant's appeal against conviction relies on three grounds, as follows:
1. There was a miscarriage of justice when the learned trial Judge failed to fairly and/or adequately sum-up the evidence of Dr Paula Jane Hallam in that he did not state certain matters in his summing-up to the jury.
Particulars of omitted facts:
- 1.1 The drastic change in approach to DNA science between the 1980s and today (t-s 903);
1.2 The specific other possibilities that would test positive for a presumptive test for blood;
1.3 The unsigned, undated evidence tape used on the pillowcase exhibit and its impact on the ability to discern what had happened previously to the exhibit (t-s 913 - 914);
1.4 Dr Hallam's concern about PathWest's unreported inconsistent results on the retested DNA sample (t-s 923 - 924);
1.5 Dr Hallam's opinion that the integrity of the exhibits had potentially been reduced (t-s 933).
2. There was a miscarriage of justice when, over objection, His Honour allowed inadmissible evidence adduced by the prosecution to be placed before the jury, the prejudicial effect of which could not be cured by direction:
Particulars:
- 2.1 Ms Penny Lorraine Cooper effectively testified the appellant was 'an offender' in New South Wales.
3. The learned trial Judge's discretion miscarried and there was a miscarriage of justice when, over objection, he ruled admissible items of the appellant's clothing seized by police in 1987 without a search warrant.
20 Leave to appeal has been granted with respect to ground 3. The question of leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal.
Proposed ground 1 - his Honour's summing up in respect of Dr Hallam's evidence
21 Although the State's case was not solely based on the DNA evidence, it was of critical importance to it. If accepted, the DNA evidence powerfully supported the proposition that the appellant was the offender. The key items in question were one of the pillowcases in L's bedroom and L's white T-shirt.
Forensic examination history
22 In 1987, these items, along with others, were sent by Senior Detective Lampard to the State Health Laboratory Services for forensic examination. At that time, DNA technology was in its infancy and the items were not subject to DNA analysis. The forensic scientist who examined the pillowcase and T-shirt, Mr Andrew Feeney, noted staining on them. On presumptive chemical testing, the stains tested positive for blood. The pillowcase and T-shirt, along with all of the other items, were returned to Senior Detective Lampard, who caused them to be put into storage at the Kalgoorlie CIB office.
23 Senior Detective Lampard was transferred from Kalgoorlie in 1989. In 2002, Detective Vincent Kinsella came across the case file and the exhibits while cleaning an area described as the Kalgoorlie CIB office exhibits 'storage shed' (ts 615). He spoke to Senior Detective Lampard about what to do with them. The exhibits were then given to a forensics officer in Kalgoorlie, Senior Constable Peter Guyton. They were labelled PJG 1 to 20 and logged onto the police computer system. The pillowcase was labelled PJG 3 and the T-shirt PJG 18. Both Detective Kinsella and Senior Constable Guyton testified that they did not handle the actual items. Senior Constable Guyton placed each exhibit in a clip seal bag sealed with evidence tape to make them tamper-proof.
24 A DNA analysis of L's T-shirt (PJG 18) was undertaken and was the subject of a PathWest report dated 30 June 2008. A partial DNA profile was recovered from a stain on L's T-shirt that matched a comparison DNA profile of the appellant. A likelihood ratio with respect to this match was not reported. The same T-shirt was re-examined and re-tested by PathWest in 2013 and 2014, as follows:
(a) A PathWest 'Forensic Biology Summary of Laboratory Findings' report dated 23 May 2013 reported, inter alia, that twenty three stains on L's T-shirt, labelled stains A to W, were separately sampled for DNA analysis. Using the Profiler Plus software, a mixed DNA profile of at least two individuals containing male DNA was extracted from stain A; however, there was insufficient information to make a reliable conclusion regarding the possible contribution of the appellant. A partial DNA profile which matched the appellant was extracted from stain U. The likelihood ratio of that partial profile being from someone other than, and unrelated to, the appellant, based on a Western Australian population database, was less than one in 9.8 million (ts 727 - 728).
(b) Later in 2013, the material which had been extracted from stains A and U was re-examined, this time using the more powerful PowerPlex®21 software (ts 728). The results of this examination were set out in a further PathWest 'Forensic Biology Summary of Laboratory Findings' report dated 29 August 2013. In relation to stain A, the result was not materially different from the result reported on 23 May 2013, but, in relation to stain U, a single source DNA profile was extracted that matched the appellant's referenced DNA profile with a likelihood profile of one in 100 billion.
(c) Further examination of the exhibits was carried out in late 2013. A PathWest 'Forensic Biology Report' written by Fiona Baxter, forensic scientist, and peer-reviewed by Ms Cooper, dated 8 November 2013, was prepared. Ms Cooper testified that this report comprised the final results of the examinations carried out on the exhibits up until that date. She also said that she was 'not sure that there was any reanalysis [of stains A and U] between the last [29 August 2013] summary report and this final [8 November 2013] report' (ts 729 - 730).
(d) Stain U was re-examined by Ms Cooper in 2014. The results of this analysis were included in her 'Forensic Biology Addendum Report' dated 6 August 2014. On this occasion, more DNA was added to the profiling reaction. Ms Cooper recovered a mixed DNA profile consistent with having come from two individuals. One of the contributors of this mixed DNA profile matched the appellant's referenced DNA profile. Ms Cooper said that the statistical analysis revealed a likelihood ratio of one in 100 billion (ts 734 - 735).
25 With respect to the DNA analysis of the pillowcase (PJG 3):
(a) A PathWest report dated 8 November 2013 recorded that a stain labelled B had been recovered on the pillowcase which was consistent with a DNA profile of one person and which matched the appellant's referenced DNA profile with a likelihood ratio of one in 253,000 (ts 730).
(b) Stain B was re-examined by Ms Cooper in 2014. The results of this re-examination were set out in Ms Cooper's report dated 6 August 2014. At trial, Ms Cooper testified, consistently with her report, to the presence of a DNA profile from one person which matched the appellant's DNA profile with a likelihood ratio of one in 2.1 million. She explained that the difference in the statistical calculation between the tests undertaken in 2013 and 2014 was that more DNA was added to the profiling reaction in 2014 (ts 734).
26 Ms Cooper was cross-examined at length by defence counsel. Defence counsel did not take issue with Ms Cooper's expertise. It was not disputed that the appellant's DNA was present on L's T-shirt and pillowcase when those exhibits were examined by Ms Cooper. The thrust of defence counsel's cross-examination was to suggest that the appellant's DNA was present on the items as a result of contamination and not because the appellant had made contact with the items during the commission of the offences on 6 March 1987.
27 Ms Cooper readily agreed with propositions put to her by defence counsel to the effect that:
(a) the presumptive test for blood is not a definitive test and that substances other than blood can give a positive reaction;
(b) there have been very great advances in DNA technology in the years since 1987, including that smaller amounts of material can yield a DNA profile;
(c) because of those advances, and the potential for transference of DNA material by contamination, the measures employed to reduce the risk of contamination have changed greatly over the years; and
(d) the integrity of items examined for DNA is important - Ms Cooper expressed concern if an exhibit bag was sealed with tape but no signature appeared on that tape.
28 In many respects, the evidence of Dr Hallam and Ms Cooper was similar. Each gave essentially the same evidence as to the general science of DNA, and the technology that is used to effect the analysis. Each agreed that DNA findings are only as to the presence of DNA itself, and not as to how or when it got there. Each acknowledged the great improvements in DNA technology over the past 30 years; the potential for contamination; and how police and laboratories nowadays employ a number of techniques, including protective clothing, to minimise the possibility of contamination.
29 Dr Hallam's attention was drawn particularly to the pillowcase and a photograph of that exhibit taken on 25 July 2013. Dr Hallam noted that the evidence tape on the exhibit bag was not signed or dated. She said that, as a result, it was not possible to say how many times that item had been repackaged and by whom (ts 913 - 914).
30 Dr Hallam testified that the records with which she had been provided by PathWest showed that, on 1 July 2013, the laboratory took further samples from L's T-shirt for DNA analysis, as follows:
(a) In relation to stain A, Dr Hallam said that a second sample taken from that stain revealed a mixed DNA profile, but with no reportable male DNA. She noted that this inconsistent result was not included in Ms Baxter's report dated 8 November 2013. In doing so, Dr Hallam noted that the sample taken from the other test area in stain A was analysed many times and the profiles were 'generally consistent' (ts 923 - 924, 955).
(b) In relation to stain U, Dr Hallam testified that a second sample taken from that stain revealed a mixed DNA profile, and that this indicated that 'there's DNA present from more than one individual' (ts 929). She said that the sample wasn't suitable for statistical analysis. Dr Hallam again noted that this result was not reported in Ms Baxter's report dated 8 November 2013 (ts 929 - 930, 955).
31 In cross-examination, Dr Hallam agreed that, where two samples are taken from the one stain, there may be different results. She accepted that inconsistency does not mean error (ts 937).
Counsel's closing addresses
32 Each counsel addressed the jury at some length on 21 October 2014. It is unnecessary to describe those closing addresses in any detail. It is sufficient to observe that the question of contamination of L's T-shirt and pillowcase, either by police or in the laboratory, was canvassed in detail. The State's case, in essence, was that, having regard to all of the evidence, there was no realistic opportunity for L's T-shirt and pillowcase to have been contaminated, and that the DNA profiles were reliable.
33 Defence counsel addressed the jury and submitted that:
(a) the presumptive testing for blood is not definitive (closing addresses transcript, 21 October 2014, ts 28); and
(b) L's T-shirt and pillowcase could have been contaminated inadvertently by Senior Detective Lampard or the Kalgoorlie CIB office in the CIB 'storage shed' or the State Health Laboratory Services' laboratory (closing addresses transcript, 21 October 2014, ts 30).
34 Defence counsel was critical of the exhibit bag containing the pillowcase which had evidence tape on it and had not been signed or dated (closing addresses transcript, 21 October 2014, ts 38).
35 Defence counsel submitted that the failure of PathWest to report (that is, in Ms Baxter's report dated 8 November 2013) the results in respect of the second samples taken from stain A on L's T-shirt and stain U on the pillowcase showed that PathWest were 'very selective' in 'how they chose to report…the DNA forensics in this case' and also 'what they have chosen to not report', which, she effectively submitted, suggested bias (closing addresses transcript, 21 October 2014, ts 42).
The summing up
36 The learned trial judge correctly identified the issue for the jury to determine on each count as being whether the State had proved beyond reasonable doubt that the appellant was the offender. His Honour told the jury that the State's case on this element was circumstantial. He summarised in detail both the State and defence cases and the evidence of each witness. He instructed the jury that it needed to be satisfied beyond reasonable doubt of the integrity of the exhibits which were subject to DNA analysis. Specifically, he told the jury that it needed to consider the continuity of those exhibits and the possibility that those items had been somehow contaminated. The learned trial judge directed the jury that it had 'to be satisfied beyond reasonable doubt as to the integrity of the DNA evidence' before it could be relied on (ts 1050).
37 His Honour referred to Dr Hallam's evidence. In the course of doing so, he reminded the jury that:
(a) Dr Hallam's testimony was that the test for blood used in the laboratory was a presumptive test only (ts 1049);
(b) the concept of contamination in 1987 'was a different concept to contamination as we know it today' (ts 1049 - 1050);
(c) they needed to be satisfied that 'there were proper procedures undertaken in 1987 and by other officers thereafter to date' (ts 1050); and
(d) they should consider 'any shortcomings in the PathWest reports regarding selective reporting or incomplete reporting' (ts 1050 - 1051).
38 His Honour gave a very comprehensive direction as to the effect of the long delay from 1987 in the case (ts 1059 - 1063). In doing so, his Honour instructed the jury to have regard to the evidence relating to the collection, storing, sampling and testing of the DNA evidence. He told the jury that the delay made it difficult for the appellant to examine the circumstances of the collection of, or items leading to, the DNA evidence. He referred specifically to the advances in DNA evidence since 1987 (ts 1062). His Honour said:
You need to take into account any advances in science since 1987. And although [Senior Detective] Lampard may have factored into his police work what he saw as contamination, DNA was not appreciated then. And steps now; for instance, the use of gloves and protective clothing, would have been used then but weren't.
So things change. … (ts 1062).
39 His Honour elaborated:
As I say, you also need to take into account the changes in technology, and the method by which scientific evidence is gathered to see whether what you now have is the ultimate result. You've had the evidence that the DNA results are only as good as the information that's fed in. Is that information sufficiently - or the integrity of it sufficiently high to enable you to act upon it?
So taking into account these factors that I've been mentioning, it would be dangerous, but it's entirely a matter for you, to find the [appellant] guilty of the charges presented against him unless having scrutinised [L's] evidence and the forensic evidence with great care and attention, and having paid due regard to it, and applying what I've just explained to you about that evidence that you're satisfied beyond reasonable doubt as to truthfulness, accuracy and reliability of [L's] evidence and the forensic evidence led by the State.
If you evaluate [L's] evidence and the forensic evidence with great care, and you've been mindful of the matters that I've been directing you to take into account, and you're satisfied as to the truthfulness, reliability and accuracy of all the evidence on any particular matter, you can make findings based on that evidence. Whether or not you accept or reject the evidence is a matter for you. But you need to be alert to the problems and the difficulties that I've just pointed out (ts 1062 - 1063).
40 The learned trial judge redirected the jury, not long after they retired, in these terms:
Of course, the PathWest scientists can only talk about what the DNA profile tells the scientist according to their statistics. The scientists cannot factor in to [sic] their statistical calculations that subject to contamination and cross-contamination whoever put the human tissue on the T-shirt and pillowcase also has to have been someone connected to those items in a physical sense.
It has to have been someone who had a chance to touch those items at some time prior to the police seizing them, which narrows the field of people who could have done that. The statistics do not tell you realistically how many people had that opportunity or what their DNA profiles are. You must also factor in this aspect of the matter[:] the chances that the [appellant's] DNA could have been innocently transferred by contamination or cross-contamination on to [sic] [L's] pillowslip and T-shirt, as suggested by [defence counsel].
But that is a matter for you to determine on the evidence and I've been through the cross-contamination and contamination separately. So DNA evidence and statistics on their own can never prove to you conclusively that the human tissue found on the pillowslip and [L's] T-shirt is the [appellant's]. Because of this you should not attempt to determine each charge based solely on the DNA evidence and statistics.
That would be the wrong approach. But you will recall that I told you in a circumstantial case you don't consider each piece of evidence in isolation. Rather, you consider the whole of the evidence in assessing what inferences you are prepared to draw. You are, therefore, entitled to combine the DNA evidence and statistics with other evidence accepted by you (ts 1070 - 1071).
The allegations in proposed ground 1
41 The essence of proposed ground 1 is that the appellant alleges that he has suffered a miscarriage of justice because the learned trial judge failed to fairly and adequately sum up Dr Hallam's evidence. The particulars to the proposed ground set out facts which, the appellant says, were omitted from the summing up and to which his Honour was obliged to specifically refer.
The relevant legal principles
42 The relevant legal principles applicable to this proposed ground were described by McLure J in Hill v The Queen [2003] WASCA 177 [85] in these terms:
The relevant legal principles are not in question. The trial Judge has a duty to put the respective cases of the prosecution and the accused to the jury in a fair and balanced way: Cornelius & Briggs v The Queen (1988) 34 A Crim R 49 at 65. The requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury although a trial Judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence: Domican v The Queen (1992) 173 CLR 555 at 560 - 561; Doughty v The Queen [2002] WASCA 238 at par 43 - 44.
43 As her Honour went on to explain, fairness and balance must emerge primarily, if not wholly, from the trial judge's summing up and are matters of impression rather than detail. Further, the adequacy of a summing up will depend upon the circumstances of each particular case: Hill [93] - [94].
Disposition of proposed ground 1
44 Contrary to what is asserted in this proposed ground, the learned trial judge fairly and adequately summed up Dr Hallam's evidence. Although his Honour was not obliged to remind the jury of each aspect of her evidence thought favourable to the appellant, he did, in substance, refer to the 'omitted facts' set out in the particulars to the proposed ground.
45 In any event, the clear impression gained from reading the summing up as a whole, in the context of the evidence and the arguments of counsel, is that it cannot reasonably be asserted that the learned trial judge's summing up was unbalanced. His Honour correctly identified as a key issue the reliability of the DNA evidence and, in particular, the possibility that it had been contaminated at some point between the collection of the exhibits and their examination at PathWest (whether by the actions of the police or in the laboratory). Further, his Honour summed up, in a comprehensive and balanced way, the respective cases on the question of contamination, including by reference to Dr Hallam's evidence. In doing so, his Honour made it abundantly clear that the jury could not convict the appellant unless it was satisfied beyond reasonable doubt of the reliability of the DNA evidence adduced by the State.
46 There is no substance to proposed ground 1. It has no reasonable prospect of succeeding. I would not give leave to appeal in respect of it.
Proposed ground 2 - failure to discharge the jury
47 By this proposed ground, the appellant asserts that the learned trial judge erred in rejecting defence counsel's application to discharge the jury after Ms Cooper testified that the appellant's DNA profile matched one on the 'National DNA Database' with a laboratory reference from New South Wales, indicating that the reference sample came from 'an offender'.
48 On 13 October 2014, Ms Cooper testified in examination-in-chief as to the DNA analysis of a stain on L's T-shirt (PJG 18) upon which PathWest ultimately reported on 30 June 2008 (referred to in [24] of these reasons). The evidence proceeded as follows:
[THE PROSECUTOR]: All right. And was that a PathWest report?---Yes, it was.
And do you have that document in front of you?---Yes, I do.
Could you just describe what that document is?---This document is a Forensic Biology Interstate Link report with the PathWest case number 08DBH0912.
And what case was that?---That refers to this case which is 87R0067.
All right. And what was the result in respect of that report?---This report details that the partial DNA profile recovered from a stain on PJG 18 [L's] T-shirt matched or linked to a DNA profile from another - another jurisdiction.
All right. By another jurisdiction you mean - - -?---Another - - -
- - - somewhere outside of WA?---Yes, this one was a - a New South Wales sample - sorry, a sample from New South Wales[.]
And where was that sample located on the exhibit, that partial DNA profile - - -?---A - - -
- - - referred to what exhibit exactly?---PJG 18, [L's] T-shirt.
And all that you received was a number?---Yes, we matched the - the DNA profiles matched on the National DNA Database and the information we received was a laboratory reference number from New South Wales and the sample details was [sic] - was listed as an offender.
And the - the laboratory reference number is - - -?---A000522.
All right. And was that number subsequently identified as being a particular person?---Yes, it was.
And was that report dated 25 July 2008?---The report written on 25 July 2008 was a police report, not a PathWest report.
And the - the number that you've been provided with, are you able to say to whom that referred?---The reference A000522 was relating to [the appellant].
And the date of birth given for [the appellant]?---11 June 1967 (ts 718 - 719). (emphasis added)
49 There is nothing to indicate that Ms Cooper's testimony of the appellant's status as 'an offender' from New South Wales on the 'National DNA Database' was anything other than inadvertent. No argument to the contrary was put at trial or to this court.
50 Shortly after the evidence had been given, defence counsel indicated that she wished to take instructions with respect to it. Ms Cooper's evidence proceeded, however, at the end of the sitting day, defence counsel applied for the discharge of the jury by reason of the testimony. Defence counsel submitted that the disclosure that the appellant was 'an offender' was 'highly prejudicial' to him, and that it could not be remedied by direction (ts 780). The learned trial judge dismissed the application to discharge the jury. His Honour said that he did not think that the evidence would cause the appellant 'insurmountable prejudice', and that the most effective means of dealing with Ms Cooper's testimony was to not draw attention to it (ts 780 - 783).
51 On 16 October 2014, during the course of counsel's discussions with the learned trial judge prior to the summing up and the closing addresses, the matter was raised by his Honour. Defence counsel agreed with his Honour that it was best for nothing to be said about the testimony because it would 'just highlight' the evidence (ts 984).
52 Due to defence counsel's illness and an intervening weekend, the learned trial judge did not sum up the case for the jury until 21 October 2014. The jury retired to consider its verdicts late on the afternoon of that day. As I have already said, the jury delivered its verdicts the next morning.
53 Apart from Ms Cooper's evidence on 13 October 2014, there was no mention in the trial of the appellant's status as 'an offender' on the 'National DNA Database'. Save for the appellant's answers given in his video record of interview with police in 2013 to the effect that he had been arrested in Kalgoorlie and was using illicit drugs in 1987 - answers that were not the subject of any application to exclude - there was no evidence about any prior involvement the appellant had with the police.
The relevant legal principles
54 The legal principles relevant to this proposed ground were explained by Buss JA (with whom Martin CJ & Wheeler JA agreed) in Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161. After examining a number of authorities (including Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22), his Honour said:
The applicable principle to be derived from the authorities I have mentioned is this: where inadmissible evidence of an accused's prior conviction has been adduced at trial, and the trial judge refuses to discharge the jury, and the accused is convicted, an appellate court must determine for itself whether, in the circumstances, the trial judge's refusal to discharge the jury has deprived the accused of a fair trial or occasioned the risk of a substantial miscarriage of justice [38].
Disposition of proposed ground 2
55 I accept that evidence given by Dr Cooper that the appellant was listed as 'an offender' in New South Wales on the 'National DNA Database' was inadmissible. His status on that database was irrelevant. I also accept the evidence was given inadvertently. From the perspective of the jury, it received no prominence at the time it was given and no reference was made to it again in the trial. By the time the jury began their deliberations on the afternoon of 21 October 2014, it was eight days since the relevant evidence had been given.
56 Ms Cooper did not explain what was meant by 'an offender' for the purposes of the 'National DNA Database'. It is by no means clear that the jury would take the term literally; that is, as someone who had been convicted of an offence in a court as opposed to someone who was alleged to be an offender.
57 Be that as it may, even if the term was taken literally, no detail was given as to the nature of any offence committed by the appellant, or when it had occurred. The jury was given clear directions by the learned trial judge in his summing up not to speculate. There is no reason to think that the jury would have assumed that the appellant had been convicted of anything remotely similar (either in nature or seriousness) to the offences before the court or had any predisposition towards burglary or sexual violence.
58 The degree of any prejudice that might have been caused by Ms Cooper's disclosure must be considered against the fact that the jury was already aware, based on his own statements made in his video record of interview, that the appellant had committed minor offences in Kalgoorlie and was a user of illicit drugs.
59 In his summing up, the learned trial judge emphasised to the jury that the primary issue for it to decide was the cogency of the DNA evidence. The summing up focused the jury's attention on the evidence relevant to this issue. When all relevant factors are considered, it is highly unlikely that a reasonable jury would have given any weight to the impugned evidence.
60 In my opinion, the learned trial judge's refusal to discharge the jury has not deprived the appellant of a fair trial, nor occasioned the risk of a substantial miscarriage of justice. The proposed ground does not have a reasonable prospect of succeeding. I would not give leave to appeal in respect of proposed ground 2.
Ground 3 - admissibility of the appellant's singlet and shorts
61 The issue raised by ground 3 is whether the learned trial judge erred by not excluding the evidence of the appellant's singlet and shorts seized by Senior Detective Lampard from Mrs Glasson's boarding house (the impugned evidence).
Background
62 Prior to trial, the appellant applied, pursuant to s 98 of the Criminal Procedure Act 2004 (WA), to exclude the impugned evidence on the basis that it had been unlawfully obtained without a search warrant pursuant to s 711 of the Code. Section 711 of the Code (now repealed) relevantly read:
Search warrant
711 If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house, vessel, vehicle, aircraft, or place -
(a) Anything with respect to which any offence has been or is suspected, on reasonable grounds, to have been committed; or
(b) Anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence; or
(c) Anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any offence;
he may issue his warrant directing a police officer or police officers named therein, or all police officers, to search such house, vessel, vehicle, aircraft, or place, and to seize any such thing if found, and to take it before a justice to be dealt with according to law.
…
63 Senior Detective Lampard testified in the s 98 proceedings, during which he was cross-examined by defence counsel (ts 158 - 184).
64 In support of the exclusion of the impugned evidence, defence counsel submitted as follows:
(a) There was no common law power which enabled Senior Detective Lampard to seize the shorts and singlet (ts 238, 245, 252).
(b) The failure by the police to obtain a search warrant pursuant to s 711 of the Code made the seizure of the items unlawful (ts 241).
(c) While the learned trial judge had a discretion to admit the impugned evidence, he should not do so (ts 245).
65 The learned trial judge ruled that, notwithstanding the absence of a search warrant, the impugned evidence should not, in the exercise of his discretion, be excluded and was admissible (ts 258).
66 His Honour found as follows:
(a) Senior Detective Lampard was called to the scene at 1 am on 6 March 1987 (ts 255).
(b) At about 8 am, he, together with another detective, Mr Shervill, conducted a search of the properties surrounding the scene (ts 256).
(c) Senior Detective Lampard was keen to ascertain the identity of the offender (ts 256).
(d) In the process of searching the properties near the scene, Senior Detective Lampard went to Mrs Glasson's boarding house and entered it with her consent (ts 256).
(e) Following discussions with Mrs Glasson, Senior Detective Lampard was directed to the clothesline in the rear of the property, on which he saw wet clothing hanging which generally met L's description of what the offender was wearing at the material time (ts 256).
(f) Senior Detective Lampard saw that the clothing was stained. He believed it to be bloodstained (ts 256).
(g) Senior Detective Lampard seized the clothing, believing that he had a common law power to do so in order to preserve the items and ensure their continuity (ts 256).
(h) The two items were placed in separate bags (ts 256).
(i) Senior Detective Lampard conceded that he could have obtained a search warrant, but that would have, in effect, taken time. His principal purpose was to preserve the evidence and ensure its continuity (ts 257).
(j) Later that same day, the complaint to ground the search warrant was prepared. The complaint indicated on its face that the clothing was already at the CIB office in Kalgoorlie, and that the grounds for the warrant included seizure of the items in order for them to be sent to Perth for 'expert examination' (ts 257).
(k) The process of obtaining the search warrant involved no deception of the justice of the peace who issued the warrant (ts 257).
67 His Honour rejected the submission put on behalf of the appellant by defence counsel that Senior Detective Lampard had acted with reckless disregard of the law (ts 257).
68 The gravamen of his Honour's reasons for allowing the State to lead the impugned evidence was expressed in these terms:
[A]part from the mistaken belief [as to the existence of a common law power to seize the impugned evidence] there's no demeaning of the administration of the justice - administration of justice, in that there's no deception, oppression or other unacceptable conduct by the investigating police officers which might lead to a discretion to exclude it or the evidence as being unfairly obtained.
Now, it seems to me to be relevant that accepting for the sake of the argument there's no common law power, that the officer - or officers believed mistakenly that they had such a power. And indeed there's no real harm caused to anyone by reason of that mistake because within a reasonably short time the warrant was obtained.
This is a serious offence. The police being undermanned were intending to comply with what they believed to be the law. And it's more an unfortunate mistake made by them. And the public interest in pursuing the matter outweighs any defect in the way they acted. This is a circumstantial case. And it is said this is part of the circumstances the State will rely upon.
Now, [defence counsel] says that section 7.11 [sic] of the [Code] as it was then applies, that there is no common law power to obtain these items of clothing. And for the reasons I've mentioned I don't accept that argument. So I'm going to allow the evidence of the search and the seizure of the clothing to be led at trial (ts 257 - 258).
69 In the appellant's written submissions in this court, it was merely asserted that the investigating officers had engaged in 'flagrant and deliberate flouting … of the appropriate procedure …' (combined white appeal book 21 [69]). This assertion may be immediately rejected. It is contrary to the learned trial judge's findings and is, on the evidence, unsustainable. Counsel for the appellant, in his oral submissions, sought to persuade this court that his Honour had wrongly exercised his discretion to not exclude the evidence. Counsel frankly acknowledged the difficulty of the task he faced. I now turn to the application of the relevant legal principles.
The relevant legal principles
70 It is unnecessary to decide whether Senior Detective Lampard had a common law power to seize the clothing in the circumstances as it is arguable that he did: see Ghani v Jones [1970] 1 QB 693. In Australia, there has been some divergence of judicial opinion as to the applicability of the principles enunciated by Lord Denning MR in that case (708 - 709, with whom Edmund Davies LJ & Sir Gordon Willmer agreed). For example, Ghani v Jones was followed in Tye v Commissioner of Police (1995) 84 A Crim R 147, 150 – 155, and Greer v Commissioner of New South Wales Police [2002] NSWSC 356 [17] - [24]; (2002) 128 A Crim R 586, 589 - 591, but not in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (1993) 42 FCR 397, 405; (1993) 115 ALR 149, 157. I will assume (favourably to the appellant) that the seizure of the impugned evidence without a search warrant was unlawful.
71 The fact that evidence was unlawfully obtained does not necessarily render it inadmissible. However, where evidence has been unlawfully obtained, a discretion is conferred upon the court to reject the evidence: R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 334 - 335 (Barwick CJ, with whom McTiernan, Windeyer, Owen & Walsh JJ agreed). The manner in which the discretion is exercised was described by Barwick CJ in Ireland in this way:
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion (335).
72 As Stephen and Aickin JJ later explained in Bunning v Cross [1978] HCA 22 [27]; (1978) 141 CLR 54, 74 - 75, the exercise of the discretion spoken of by Barwick CJ in Ireland involves:
[N]o simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction a wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law (74).
73 Their Honours continued:
[The exercise of the discretion] by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration (74 - 75).
74 In Mukevski v The State of Western Australia [2010] WASCA 138 [21] - [22], Owen JA (with whom McLure P & Buss JA agreed) extracted from the judgment of Stephen and Aickin JJ in Bunning v Cross (78 - 80), five factors which serve as guides to the way in which the relevant discretion falls to be exercised. The factors are not exhaustive. They are:
(a) Whether the unlawfulness was other than the result of a mistaken belief on the part of the police officers that they were entitled to do what they did.
(b) Whether the nature of the unlawfulness in the case affects the cogency of the evidence.
(c) The ease with which the law might have been complied with.
(d) The nature of the offence with which the offender has been charged.
(e) Whether the law breached reflects a deliberate intent on the part of the legislature narrowly to restrict the police in the exercise of their powers.
Disposition of ground 3
75 As to the first factor referred to in Mukevski, the unlawfulness was as a result of Senior Detective Lampard's mistaken belief that he had a common law right to seize the impugned evidence. There was no deliberate contravention or flouting of the law.
76 As to the second factor, the cogency of the evidence was not affected by the absence of a search warrant. The seized items were placed in separate bags and were subsequently tested. The cogency of the evidence was completely unaffected by the manner in which Senior Detective Lampard seized it.
77 As to the third factor, while there were some practical obstacles to Senior Detective Lampard immediately obtaining a search warrant, it may be said that a warrant could have been obtained with relative ease. However, a counterbalancing consideration was the need at the material time to promptly ensure the preservation of the evidence and its continuity. Further, although the search warrant was not obtained prior to the seizure of the impugned evidence, it was validly obtained later on the same day. This factor does not, in my view, weigh materially against the admissibility of the impugned evidence.
78 The fourth factor involves some examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority: Bunning v Cross (80). Undoubtedly, the offences with which the appellant was charged were very serious. I do not regard, in all of the circumstances, the failure of Senior Detective Lampard to obtain a search warrant as having anywhere near the same comparative seriousness, particularly in light of the fact that a lawful search warrant was obtained within a short time of the seizure of the impugned evidence.
79 Finally, as to the fifth factor, s 711 of the Code undoubtedly constitutes a restriction upon police of the exercise of their powers. On the other hand, I repeat that a warrant was lawfully obtained later on the same day of the search. While this factor might weigh in favour of rejection, it was not such as to justify the exclusion of the impugned evidence. There were plainly reasonable grounds to issue a warrant for seizure of the impugned evidence for the purpose of forensic analysis.
80 No argument was put to this court to the effect that his Honour exercised his discretion based on an erroneous appreciation of the relevant legal principles. Had such an argument been put, it would have failed. The appellant's argument was focused on attempting to establish that his Honour exercised the discretion wrongly, having regard to the factual circumstances of the case. To demonstrate such an error is indeed a difficult task. In my opinion, it was not only well open to him not to exclude the impugned evidence; he was correct to so conclude. Ground 3 has not been made out.
Conclusion and orders - appeal against conviction
81 None of the grounds of appeal have been made out. The appeal against conviction must be dismissed. The orders that I would make are:
1. Leave to appeal on proposed grounds 1 and 2 is refused.
2. The appeal is dismissed.
The application for leave to appeal against sentence
82 The appellant relies on two proposed grounds of appeal. Proposed ground 1 alleges that the individual sentence on count 4 (an offence of aggravated sexual penetration) was manifestly excessive. Proposed ground 2 alleges that the total effective sentence infringed the first limb of the totality principle. The question of leave to appeal on both proposed grounds was referred to the hearing of the appeal.
83 The maximum penalties for the offences are as follows: in respect of count 1, 20 years' imprisonment; count 2, 10 years' imprisonment; and counts 3 and 4, 20 years' imprisonment.
His Honour's sentencing remarks
84 In his sentencing remarks, his Honour described the facts of the offending in these terms:
It seems to me that consistent with the jury verdict and based on those verdicts, the facts are that you were 19, [L] was 16, she was at home alone, her 18-year-old partner had gone to work a night shift. You broke into her home with an intent to commit an offence in that home.
You got into bed with her. She woke up. She realised that someone was on the bed and at first, she assumed that it was her partner who had returned from work. She spoke and you started to kiss her. With that, she of course realised that you were not her partner.
She tried to get up. She was then confused, wondering who it was. You punched her, you knocked her off the bed, you punched her several more times and then you dragged her back onto the bed and she fought you off and she was able to escape out onto the street.
You then dragged her back inside, having chased her out there and in doing that, you'd dragged her across the gravel and caused her to suffer from gravel rash. Inside the house, you then committed the two sexual penetrations. You forced your penis into her mouth and you penetrated her vagina with your penis.
In all of this, you used physical violence to achieve your aims. You battered her with a blunt instrument. That's probably the iron that was found in the bedroom. You made threats to kill her in the course of all this. She suffered bodily harm in addition to the sexual penetrations. She spent three days in Kalgoorlie Regional Hospital following this and she's required a number of visits to her GP following that.
The offending ceased by reason of the fact that it was obvious to you as the offender and to [L] that the flashing lights of a passing police vehicle indicated the police were out in the street. When that occurred, you then took off and escaped via the back lane and you were able to do that because you knew of the surroundings, given the fact that you lived a few doors down the road in a rental place (ts 1098 - 1099).
85 The appellant was 19 years of age when he committed the offences. After leaving Western Australia, he went to New South Wales. Since then, he has spent nearly all of his adult life in prison. Although his criminal history in Western Australia was described by his Honour as 'minor', his criminal history in New South Wales is extremely serious. The appellant was convicted in that State of unlawful wounding, assault and murder in 1987 (the 1987 offences); assault in 1990; malicious damage in 1995; possession of a prohibited drug in 2005; destruction of property in 2007; and, resisting arrest, aggravated burglary and wounding in 2008 (the 2008 offences). He served a term of imprisonment for the 1987 offences from 1 October 1987 until 31 March 2007, and for the 2008 offences, from 16 January 2008 until 2013, at which time he was extradited to Western Australia to face the charges with which this appeal is concerned. The appellant sold drugs while in prison both in Western Australia and New South Wales.
86 His Honour described the appellant's young life as troubled and said that the appellant's 'thwarted needs' had significant impact in shaping his personality and behaviours (ts 1101).
87 A psychological report noted that in 2008, the appellant was diagnosed with bipolar disorder and that he has schizoid personality traits. The psychologist was unable to determine 'the psychological underpinnings of his offending behaviour' in the present case due to his denial that he had in fact committed the offences (psychological report of Cinzia Zuin dated 11 January 2015 p 8).
88 Based on the reports, the learned sentencing judge said that the appellant seemed to pose a 'moderate to high risk' of re-offending (ts 1100).
89 L provided a victim impact statement. She suffered physical injuries as a result of the attack, including scarring and the displacement of some of her teeth. She has experienced long-term psychological trauma as a result of the offences, including episodes of major depression and post-traumatic stress disorder. The adverse psychological effects of the offending are continuing.
The appellant's submissions on appeal
90 The submissions in support of the proposed grounds of appeal acknowledge the serious nature of the offences but focus on his youth at the time the offences were committed.
Appellate sentencing principles
91 The relevant legal principles to be applied are well known and uncontroversial. This court cannot intervene simply because, had it been sentencing the appellant at first instance, it would have imposed a different sentence. The appellant must persuade the court that the learned sentencing judge made a material express or implied error. An allegation that a sentence is manifestly excessive, or that the total effective sentence infringes the totality principle, is an allegation of implied error. In both instances, the appellant must demonstrate that the sentence was plainly unjust or unreasonable.
Disposition of the proposed grounds
92 The real issue raised by the appellant is whether the total effective sentence of 8 years' imprisonment infringed the first limb of the totality principle. That is, whether the total effective sentence bore a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. This is because, while there will be times when it is appropriate to examine an individual sentence because it may have proceeded on an incorrect factual basis, or it may be tainted by some other demonstrable error, generally speaking, when there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence: Giglia v The State of Western Australia [2010] WASCA 9 [40].
93 In my opinion, the allegation that the total effective sentence breached the first limb of the totality principle has no reasonable prospect of succeeding. The offending was at the high end of seriousness. The appellant broke into L's home when she was both alone and asleep; thus she was very vulnerable. L was subjected to a prolonged and terrifying experience in which she was assaulted, threatened with death and sexually penetrated twice against her will. When L tried to get away, the appellant pursued her. He armed himself with a weapon. The offences seriously affected L's wellbeing, and continue to do so almost three decades after they were committed.
94 There appears to be no acceptance of responsibility on the part of the appellant, nor is there any remorse for his actions. Personal and general deterrence are important sentencing considerations in this case.
95 The only real mitigating factor is the appellant's youth at the time of the offending. However, the mitigating effect of this factor is diminished by his continued and serious offending after he committed these offences, and the risk he poses to the safety of the community in the future.
96 Counsel for the appellant referred this court to a number of cases said to be comparable to which I have had regard, including Rigby v The State of Western Australia [2005] WASCA 134; Woodley v The State of Western Australia [2008] WASCA 92; The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373; Ugle v The State of Western Australia [2012] WASCA 104; (2012) 233 A Crim R 115 and Prempeh v The State of Western Australia [2013] WASCA 150. It is unnecessary to repeat the facts and circumstances of these cases. It is sufficient to observe that they do not support the proposition that the total effective sentence was erroneous.
97 Having regard to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally, a total effective sentence of 8 years' imprisonment cannot reasonably be said to be plainly unjust or unreasonable. Leave to appeal on proposed ground 2 should be refused.
98 To the extent that proposed ground 1 remains alive, the individual sentence on count 4 cannot reasonably be said to be manifestly excessive. Having regard to the maximum sentence for the offence, the range ofsentences customarily imposed (as to which, see Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 [11], [17] - [18]), the seriousness of the offence and the appellant's antecedents, it is not plainly unjust or unreasonable. Leave to appeal on ground 1 should be refused.
Conclusion and orders - application for leave to appeal against sentence
99 The orders that I would make in respect of the application for leave to appeal against sentence are:
1. Leave to appeal on proposed grounds 1 and 2 is refused.
2. The appeal is dismissed.
100 CORBOY J: I agree with Mazza JA.
1 PathWest's predecessor.
3
18
3