CGF v The State of Western Australia

[2023] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CGF -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 187

CORAM:   QUINLAN CJ

MAZZA JA

MCGRATH J

HEARD:   13 SEPTEMBER 2022

DELIVERED          :   21 DECEMBER 2023

FILE NO/S:   CACR 187 of 2020

BETWEEN:   CGF

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 11 of 2021

BETWEEN:   CGF

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GETHING DCJ

File Number            :   IND XXX of XXXX

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of 25 counts of child sexual offending - Whether miscarriage of justice arose from improper joinder of counts in the indictment - Whether counts on the indictment should have been severed - Whether jury directions and handouts were overly complex and biased - Whether miscarriage of justice occasioned by conduct of prosecution and police

Criminal law - Appeal against sentence - Whether sentencing judge erred in failing to mitigate sentence for prison hardship - Whether sentencing judge erred in relying on impugned reports - Whether sentencing judge erred in findings of seriousness of offending - Whether sentencing judge erred in failing to give discount for appellant's plea offer - Whether total effective sentence of 15 years' imprisonment breached both limbs of totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 189(2), s 220, s 320(2), s 320(4), s 323, s 324C, s 324E, s 324H(e), s 325, s 329(2), s 329(5), s 329(9)(a), s 329(10)(a)
Criminal Procedure Act 2004 (WA), s 85(2)(b), s 133, sch 1 div 2, sch 1 div 3
Evidence Act 1906 (WA), s 31A, s 32, s 39F
Restraining Orders Act 1997 (WA), s 63A
Sentencing Act 1995 (WA), s 9AA

Result:

CACR 187 of 2020
Appeal dismissed

CACR 11 of 2021
Appeal dismissed

Category:    B

Representation:

CACR 187 of 2020

Counsel:

Appellant	:	In person
Respondent	:	K C Cook

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

CACR 11 of 2021

Counsel:

Appellant	:	In person
Respondent	:	K C Cook

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Browne v Dunn (1893) 6 R 67

CGF v The State of Western Australia [2019] WASCA 206

Clarke v The State of Western Australia [2018] WASCA 14

De Jesus v The Queen [1986] HCA 65; (1986) 22 A Crim R 375

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531

Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260

HTN v The State of Western Australia [No 2] [2022] WASCA 51; (2022) 298 A Crim R 337

JEL v The State of Western Australia [2022] WASCA 32

JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209

JTR v The State of Western Australia [2023] WASCA 131

Lancaster v The Queen [1989] WAR 83

Longman v The Queen (1989) 168 CLR 79

Ludlow v Metropolitan Police Commissioner [1971] AC 29

LYN v The State of Western Australia [2019] WASCA 45

MHE v The State of Western Australia [2019] WASCA 133

Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324

Morgan v The State of Western Australia [No 2] [2019] WASCA 185

OTR v The State of Western Australia [No 2] [2022] WASCA 123

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Pennetta v The State of Western Australia [2013] WASCA 234

R v Apostilides (1984) 154 CLR 563

R v Cranston [1988] 1 Qd R 159

R v Kray [1970] 1 QB 125

R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231

SHI v The State of Western Australia [2020] WASCA 197

Sturniolo v The State of Western Australia [2023] WASCA 147

The State of Western Australia v GBT [2006] WASCA 75

The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285

The State of Western Australia v O'Kane [2011] WASCA 24

The State of Western Australia v WCM [2014] WASCA 38

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

Wark v The State of Western Australia [2023] WASCA 66

Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

Table of Contents

Quinlan CJ & McGrath J........................................................................................................ 7

Mazza JA

Introduction

Appeal against conviction

The State's case at trial

Evidence of MF

Evidence of ED

Evidence of EF

Evidence in respect of count 25

Evidence of VET

Evidence of AYH

Evidence of P

Evidence of SMLJ

Evidence of E

Evidence of LV

Evidence of Detective Senior Constable Grieve

Evidence of Senior Constable Osborne

Other admissions made by the appellant pursuant to s 32 of the Evidence Act

The defence case

The appellant's application to adduce additional evidence

Grounds of appeal - appeal against conviction

Appeal against conviction - the real issues

The procedural history

Issues 1 and 2 - joinder and severance

Relevant statutory provisions of the CPA

Joinder - the appellant's submissions

Joinder - the respondent's submissions

Joinder - legal principles

Issue 1 - disposition

Severance

Severance - the appellant's submissions

Severance - the respondent's submissions

Severance - legal principles

Issue 2 - disposition

Issues 3 and 4 - the directions given to the jury

The summing up

The appellant's submissions

The respondent's submissions

Issues 3 and 4 - disposition

Issue 5 - the appellant's submissions

Issue 5 - disposition

Conclusion and orders

Appeal against sentence

The applications to adduce additional evidence

Grounds of appeal - appeal against sentence

The facts of the appellant's offending

His Honour's findings as to the seriousness of the appellant's offending

The mitigating factors

The appellant's personal circumstances

The psychological and pre‑sentence reports

Ground 1 - mitigation for protective custody

Ground 3 - the psychological and pre‑sentence reports

Ground 4 - the appellant's offer to plead guilty

Grounds 2 and 5 - totality

Grounds 2 and 5 - the submissions

Grounds 2 and 5 - the totality principle

Grounds 2 and 5 - general sentencing principles applicable to sexual offending against children

Grounds 2 and 5 - general principles applicable to sentencing for the offence of possession of CEM

Grounds 2 and 5 - disposition

The restraining orders

Conclusion and orders

QUINLAN CJ & McGRATH J:

1. We have had the considerable benefit of reading, in draft, Mazza JA's reasons for decision. For the reasons that his Honour gives, we agree that the appellant's appeal against conviction and his appeal against sentence must be dismissed. We agree with the orders proposed by his Honour.

2. We would only add the following observations.

3. As Mazza JA's reasons reveal, the prosecution in this case relied on no less than 15 categories of propensity and relationship evidence as being cross-admissible pursuant to s 31A of the Evidence Act 1906 (WA). The State's case had the necessary consequence that, in order to ensure a fair trial, the learned trial judge was required to give the jury a number of significant directions involving some subtlety and complexity. We agree with Mazza JA that the learned trial judge discharged that obligation admirably and that the directions that his Honour gave, while necessarily complex, were not confusing or burdensome. We also agree that the capacity of contemporary juries to understand complex evidence and directions should in no way be underestimated.

4. Nevertheless, in our view it is timely to sound a note of caution in relation to the potential for the over-use of propensity and relationship evidence in trials such as in the present case, which are already complex.  As this Court observed in relation to evidence of uncharged acts in JEL v The State of Western Australia,[1] where the State seeks to rely upon evidence relating to certain counts as cross‑admissible propensity or relationship evidence in relation to other counts, it behoves the prosecutor to give careful attention to the uses to which that evidence might properly be put and to whether the probative benefit to be obtained from the evidence can justify the impact on the complexity of the trial as a whole. While it may not have been reached in this case, a point will ultimately be reached where the apparent forensic benefit to be gained by the multiplication of categories of cross‑admissibility will come at too great a cost to the coherence and intelligibility of the law as a whole.

[1] JEL v The State of Western Australia [2022] WASCA 32 [218] ‑ [220] (Buss P, Mazza & Beech JJA).

MAZZA JA:

Introduction

1. The appellant was charged on indictment in the District Court with 25 counts.  Counts 1 ‑ 24 alleged sexual offending against three female complainants, MF, ED and EF.  The offending in respect of ED and EF allegedly occurred when they were children.  The offending against MF allegedly occurred when she was a child and as an adult.  MF is the appellant's daughter.  ED is the daughter of a woman who, at the relevant time, was a friend of the appellant.  EF is his granddaughter.  The alleged offending in respect of MF occurred between 20 December 1983 and 21 December 2002.  The alleged offending in respect of ED occurred between 10 February 1996 and 11 February 1998.  The alleged offending in respect of EF occurred in June 2017 and on 1 February 2018.  Count 25 alleged that on or about 9 February 2018, the appellant possessed child exploitation material (CEM). 

2. Originally, the appellant was charged on two District Court indictments.  Indictment A of 2018 contained 20 offences against MF and ED.  The second, indictment B of 2018, contained four offences against EF and the count of possession of CEM.[2]

   [2] The actual numbers of the indictments have been anonymised.

3. Prior to 14 October 2019, various applications were filed, including an application by the State to, in effect, join all the charges in the two District Court indictments into a single indictment containing all of the alleged offences.  The application was opposed by the appellant who, by his own application, sought to sever the charges in respect of each complainant and the charge of possession of CEM.  If granted, the appellant would have faced four separate trials. 

4. On 24 October 2019, Stavrianou DCJ delivered judgment with reasons on the various applications.  The orders his Honour made included an order to the effect that the charges in the two indictments be joined into one indictment, being indictment A of 2018, then dated 3 July 2019.  His Honour dismissed the appellant's application for severance.[3]  Ultimately, the appellant was tried on one indictment which contained 25 counts.[4]

   [3] The appellant purported to appeal against the granting of the joinder application and the dismissal of the severance application.  The appeal was dismissed as incompetent:  CGF v The State of Western Australia [2019] WASCA 206.

   [4] The indictment dated 3 July 2019 was later substituted with an indictment dated 19 October 2020.  There is no material difference between the two indictments.

5. After a trial before Gething DCJ and a jury over nine sitting days between 3 and 12 November 2020, the appellant was convicted of all 25 offences.

6. On 15 January 2021, the appellant was sentenced to a total effective sentence of 15 years' imprisonment, with eligibility for parole.  The sentence was backdated to commence on 5 February 2018, the date upon which he was arrested and went into custody.

7. The details of the offences for which the appellant was charged and convicted, and the sentences that were imposed upon him, are set out in the table below.

Count	Offence	Maximum sentence	Sentence imposed
MF (counts 1 - 16)
1	On a date unknown between 20 December 1983 and 21 December 1985 at [a place], the appellant unlawfully and indecently dealt with MF, a girl under the age of 13 years, by penetrating her vagina with his fingers, contrary to s 189(2) of the Criminal Code (WA) (Code).[5]	7 years' imprisonment	3 years 6 months' imprisonment
2	On a date unknown between 20 December 1983 and 21 December 1987 at [a place], the appellant unlawfully and indecently dealt with MF, a girl under the age of 13 years, by touching her vagina with his hand, contrary to s 189(2) of the Code.	7 years' imprisonment	2 years 6 months' imprisonment
3	On a date unknown between 20 December 1984 and 21 December 1988 at [a place], the appellant unlawfully and indecently dealt with MF, a girl under the age of 13 years, by penetrating her vagina with his fingers, contrary to s 189(2) of the Code.	7 years' imprisonment	3 years 6 months' imprisonment
4	On a date unknown between 20 December 1984 and 21 December 1987 at [a place], the appellant unlawfully and indecently dealt with MF, a girl under the age of 13 years, by touching her vagina with his hand, contrary to s 189(2) of the Code.	7 years' imprisonment	2 years 6 months' imprisonment
5	On a date unknown between 20 December 1985 and 21 December 1988 at [a place], the appellant unlawfully and indecently dealt with MF, a girl under the age of 13 years, by penetrating her vagina with his fingers, contrary to s 189(2) of the Code.	7 years' imprisonment	3 years 6 months' imprisonment
6	On a date unknown between 20 December 1988 and 21 December 1991 at [a place], the appellant sexually penetrated MF without her consent by penetrating her vagina with his fingers, and that MF was under the age of 16 years, contrary to s 324E and s 324H(e) of the Code.[6]	20 years' imprisonment	3 years 6 months' imprisonment
7	On another date unknown between 20 December 1988 and 21 December 1991 at [a place], the appellant sexually penetrated MF without her consent by introducing his penis into her mouth, and that MF was under the age of 16 years, contrary to s 324E and s 324H(e) of the Code.	20 years' imprisonment	6 years' imprisonment (head sentence)
8	On the same date at the same place as in count 7, the appellant sexually penetrated MF without her consent by engaging in cunnilingus, and that MF was under the age of 16 years, contrary to s 324E and s 324H(e) of the Code.	20 years' imprisonment	6 years' imprisonment
9	On another date unknown between 20 December 1988 and 21 December 1991 at [a place], the appellant sexually penetrated MF without her consent by penetrating her vagina with his fingers, and that MF was under the age of 16 years, contrary to s 324E and s 324H(e) of the Code.	20 years' imprisonment	3 years 6 months' imprisonment
10	On a date unknown between 8 February 1990 and 29 February 1991 at [a place], the appellant unlawfully and indecently assaulted MF by procuring her to touch his penis, and that MF was under the age of 16 years, contrary to s 324C and s 324H(e) of the Code.	6 years' imprisonment	2 years 6 months' imprisonment
11	On a date unknown between 20 December 1994 and 21 December 1996 at [a place], the appellant sexually penetrated MF without her consent by penetrating her vagina with his fingers, contrary to s 325 of the Code.	14 years' imprisonment	3 years' imprisonment
12	On a date unknown between 20 December 1997 and 21 December 2000 at [a place], the appellant sexually penetrated MF without her consent by penetrating her vagina with his fingers, contrary to s 325 of the Code.[7]	14 years' imprisonment	5 years' imprisonment
13	On a date unknown between 1 January 1996 and 31 December 1996 at [a place], the appellant sexually penetrated MF without her consent by penetrating her vagina with his fingers, contrary to s 325 of the Code.	14 years' imprisonment	3 years' imprisonment
14	On the same date at the same place as in count 13, the appellant sexually penetrated MF without her consent by introducing his penis into her mouth, contrary to s 325 of the Code.	14 years' imprisonment	5 years' imprisonment
15	On a date unknown between 20 December 1998 and 21 December 2002 at [a place], the appellant unlawfully and indecently assaulted MF by touching her breasts with his hand, contrary to s 323 of the Code.	5 years' imprisonment	12 months' imprisonment
16	On a date unknown in 2001 at [a place], the appellant unlawfully and indecently assaulted MF by touching her breasts with his hand, contrary to s 323 of the Code.	5 years' imprisonment	12 months' imprisonment
ED (counts 17 - 20)
17	On a date unknown between 10 February 1996 and 11 February 1997 at [a place], the appellant indecently dealt with ED, a child under the age of 13 years, by touching her breasts with his hand, contrary to s 320(4) of the Code.	10 years' imprisonment	15 months' imprisonment
18	On a date unknown between 10 February 1997 and 11 February 1998 at [a place], the appellant indecently dealt with ED, a child under the age of 13 years, by touching her breasts with his hand, contrary to s 320(4) of the Code.	10 years' imprisonment	15 months' imprisonment
19	On a date unknown between 10 February 1998 and 11 February 1999 at [a place], the appellant sexually penetrated ED, a child under the age of 13 years, by penetrating her vagina with his fingers, contrary to s 320(2) of the Code.	20 years' imprisonment	3 years 6 months' imprisonment (cumulative)
20	On another unknown date between 10 February 1998 and 11 February 1999 at [a place], the appellant sexually penetrated ED, a child under the age of 13 years, by penetrating her vagina with his fingers, contrary to s 320(2) of the Code.	20 years' imprisonment	3 years 6 months' imprisonment
EF - (counts 21 ‑ 24)
21	On a date unknown in June 2017 at [a place], the appellant sexually penetrated EF, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that EF was a child under the age of 16 years, contrary to s 329(2) and s 329(9)(a) of the Code.	20 years' imprisonment	3 years 6 months' imprisonment (cumulative)
22	On another date unknown in June 2017 at [a place], the appellant sexually penetrated EF, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that EF was a child under the age of 16 years, contrary to s 329(2) and s 329(9)(a) of the Code.	20 years' imprisonment	3 years 6 months' imprisonment
23	On another date unknown in June 2017 at [a place], the appellant sexually penetrated EF, a child who he then knew to be his lineal relative, by penetrating her vagina with his finger, and that EF was a child under the age of 16 years, contrary to s 329(2) and s 329(9)(a) of the Code.	20 years' imprisonment	3 years 6 months' imprisonment
24	On 1 February 2018 at [a place], the appellant procured or encouraged EF, a child who he then knew to be his lineal relative, to do an indecent act, namely expose her breasts, and that EF was a child under the age of 16 years, contrary to s 329(5) and s 329(10)(a) of the Code.	10 years' imprisonment	2 years' imprisonment
CEM (count 25)
25	On or about 9 February 2018 at [a place], the appellant had in his possession CEM, namely images on two desktop computers and a thumb drive, contrary to s 220 of the Code.	7 years' imprisonment	2 years' imprisonment (cumulative)

[5] The Code provision relating to counts 1 ‑ 5 has since been repealed.  It used the language 'girl', rather than 'child'.

[6] The Code provisions relating to counts 6 ‑ 10 have also since been repealed.

[7] Amended at trial, ts 508.

1. The appellant, as a litigant in person, appeals to this court against both conviction and sentence.  In each case, he does so on multiple grounds.  As will be seen, the grounds of appeal are not clearly expressed and are in unorthodox form.  The written submissions in support of the grounds are unhelpful and often stray into unnecessary commentary on the trial and the witnesses.  They also assume that the appellant's version of the facts is true, despite the jury's verdicts.

1. In the appeal against conviction, the appellant's principal complaints are:

   (1)Stavrianou DCJ erred in joining all of the charges in the one indictment and by not severing the counts so that the appellant faced four separate trials.

   (2)He suffered a miscarriage of justice at his trial by reason of the joinder and the refusal to order severance.

   (3)He suffered a miscarriage of justice as a result of the trial judge's oral and written directions on propensity evidence.  The appellant does not suggest that the directions were wrong in law, rather he alleges that they were confusing, burdensome, biased and suggested guilt. 

   (4)The Office of the Director of Public Prosecutions for Western Australia (DPP) and the WA police behaved unfairly in many ways, both before and during the trial, as a result of which he has suffered a miscarriage of justice.

2. In the appeal against sentence, the appellant alleges, in effect, that the sentencing judge erred by failing to take into account that he would have to serve his sentence in protective custody and that before trial, he had made an offer to plead guilty to one charge in respect of EF.  The appellant further alleges that he suffered a miscarriage of justice by reason of 'dodgy pre‑sentence reports'.  The appellant also contends that the total effective sentence imposed upon him infringed both limbs of the totality principle.

3. The question of leave to appeal in respect of the grounds relied on by the appellant in both appeals was referred to the hearing of the appeals.

4. The appellant has, in both appeals, sought leave to adduce additional evidence.

5. For the reasons which follow, I would dismiss both of the appellant's appeals.  Before I set out my reasons, I wish to say something about the delay in finalising the appeals.

6. As will be seen, the appeals raised a number of issues requiring consideration of a considerable amount of material.  That consideration was not assisted by the inevitable difficulties arising from the fact that the appellant was unrepresented.  Even still, the resolution of the appeals should not have taken as long as it did.  Accordingly, I apologise to the appellant and the respondent for the delay in finalising these appeals.

7. I will first deal with the appeal against conviction.

Appeal against conviction

The State's case at trial

1. The State's case at trial in respect of counts 1 ‑ 24 depended, in each count, upon the jury being satisfied that the appellant committed the relevant sexual act.  This required the jury to be satisfied beyond reasonable doubt that the evidence of the relevant complainant was both honest and accurate.  The evidence of each of the complainants as to the sexual acts said to have been committed by the appellant was uncorroborated.  The evidence of each complainant was pre‑recorded before Stewart DCJ between 2 and 4 June 2020 and, in the case of EF, included her child witness interview recorded on 2 February 2018.  Their evidence, and that of other State witnesses, may be summarised as follows.

Evidence of MF

1. MF was born in late 1978.  She has a younger brother, P, who was born two or three years later.  Her parents are the appellant and his wife, E.

2. Until MF was about 18 years old, she and the rest of her family lived at a house in a regional city in WA (the house).  When MF was about 19 or 20 years old, the family moved to a larger property in a nearby town (the farm).

3. MF testified that, from about the age of 4 until she was about 25, the appellant 'would interfere with [her] on a regular basis'.  She said, 'sometimes it was daily, weekly.  There was no timeframe until I got older'.

4. As to count 1, MF said that when she was aged about 4 or 5, she recalled an occasion on which she, her brother and the appellant were driving home, after visiting relatives in Perth.  She said that the appellant pulled over at a parking bay because he said he was feeling tired.  He asked her to join him in the front seat of the car, which she did.  Her brother was asleep in the back of the car.  The appellant then put his hands down MF's pants and penetrated her vagina 'for a little bit', until another car pulled into the parking bay.[8]

   [8] ts 352 - 353.

5. As to count 2, MF said that when she was between the ages of 5 and 8 years, the appellant took her for a ride on his motorcycle to one of the back streets of the city in which they lived.  There, he put her on the front of the motorcycle on the fuel tank.  He then put his hands up her shirt and down her pants, beneath her clothing.  While doing so, he touched her breasts and he 'played' with her vagina.  MF could not remember whether the appellant penetrated her vagina or not.  She recalled that he 'played' with her vagina underneath her underwear.[9] 

   [9] ts 353 - 354.

6. As to count 3, when MF was aged between 7 and 10 years, she recalled an occasion when she was in the shed with the appellant.  He asked her whether she dreamt about what he did or what she wanted him to do.  She answered in the negative.  The appellant then came over to her and told her to start playing with herself, which she did.  He told her that she was not 'doing it right' and that she 'had to do it better'.  As he said this, he was masturbating himself and said, 'I'll show you how it's done'.  He then penetrated her vagina with his finger while he was masturbating himself, saying, 'here, while I'm doing you, you do me'.  MF proceeded to masturbate him.  MF said that she masturbated him for 'probably no more than five minutes'.  The appellant stopped what he was doing when he heard MF's maternal grandmother call out.[10]

   [10] ts 354 - 355, 366.

7. As to count 4, when MF was aged between 7 and 9 years, she recalled an occasion when she was in the shower in the house.  The appellant entered the bathroom and rubbed his hands on her chest and 'played' with her vagina.  She said that, on this occasion, he 'played' with the outside of her vagina, which he then penetrated with one of his fingers.[11]

   [11] ts 355 - 356.

8. As to count 5, when MF was aged between 8 and 10 years, she recalled a night she was in the kitchen, helping the appellant cook dinner.  She said that she was standing on one side of the kitchen bench when the appellant came over, stood behind her and put his hands down her pants.  The appellant twice told her to remove her underwear, which she refused to do.  MF prevented the appellant's attempt to pull her underwear down.  He became 'really angry' and told her that she 'was interfering with what he wanted to do'.  The appellant managed to pull down MF's underwear.  He then inserted his fingers into her vagina, while standing behind her.  The appellant stopped what he was doing when he heard his wife and son nearby.[12]

   [12] ts 356 - 359.

9. As to count 6, MF recalled an occasion when she was aged between 10 and 13 years, when the appellant came into her bedroom to say goodnight.  He pulled the covers down, lifted MF's nightdress up and started 'playing' with her breasts.  As he did so, he said, 'I can't wait for the first time you have sex'.  He then pulled her underwear down, saying, 'I don't like you wearing these' and then penetrated her vagina with his finger or fingers (she did not specify which).[13]

   [13] ts 359 - 360.

10. As to count 7, MF recalled an occasion, when she was aged between 12 and 14 years, which occurred at the house after the appellant had purchased a video camera.  The appellant said to MF, 'Let's videotape you giving me a blow job'.  MF then knelt on the floor, between the kitchen and dining room, and sucked the appellant's penis.  He ejaculated and said words to the effect that she had to swallow and enjoy it.  The appellant then checked the video recording and, having done so, said, 'You can hear us but you can't see us so we have to do it again'.  This led to the commission of count 8.  The appellant said to MF, 'Well let's film me licking you.  Lie on the kitchen table', which she did.  The appellant then licked her vagina with his tongue.[14]

    [14] ts 370 - 372.

11. As to count 9, when MF was aged between 10 and 13 years, she recalled an occasion when the appellant was tinkering with the car radio in a vehicle which was parked on the driveway at the house.  The appellant asked MF to help him, which she agreed to do.  He told her she had to lie on the car floor.  While in this position, the appellant lifted MF's shirt and pulled her pants 'out of the way'.  He then penetrated her vagina with his fingers and 'played' with her breasts.  He said words to the effect that she 'had to get used to this, so that guys could do whatever they wanted to do' to her.  The appellant stopped what he was doing when he heard his wife and son approach.  He said, 'So we'll come back to this later'.[15]

    [15] ts 365 - 366.

12. As to count 10, around the time of MF's 13th birthday, the appellant was in a regional prison.  (The events that led to his imprisonment will be referred to later in these reasons.)  MF wore a dress she had been given for her birthday to the prison.  While inside the visiting room at the prison, the appellant asked her to sit beside him, which she did.  He told her that he had something for her in his pocket.  The appellant then grabbed her hand and placed it in his pocket.  The appellant had cut out the lining of the pocket and he placed MF's hand over his penis and rubbed her hand up and down his penis.  MF recalled that her brother asked, 'Can I have whatever the surprise is?', to which the appellant replied, 'No'.  After the incident, the appellant said to MF, 'That will get me through tonight'.[16]

    [16] ts 373 - 374.

13. MF recalled an uncharged act which occurred when she was around 16 ‑ 18 years old.  The appellant asked her to shower him.  MF said that she had to undress him, run the water, and wash him from head to toe.  When she got to 'his privates', he told her to 'take it real nice and slow and be very thorough'.[17]

    [17] ts 374.

14. As to count 11, MF remembered an occasion, around the same time that the uncharged act occurred, when she was assisting the appellant to wash a truck in a yard.  While washing down the truck, MF became covered in mud and water.  She went to have a shower in a bathroom in the yard and was followed by the appellant.  After her shower, the appellant told her not to get dressed, but to lie on the ground, on a towel, and wait for him.  After the appellant had his shower, he came over to MF.  According to MF, the appellant 'played' with her 'chest' and then got her to masturbate him.  He then penetrated her vagina with his fingers.[18]

    [18] ts 374 - 375, 377.

15. As to count 12, MF recalled an incident which occurred in the shed at the farm, when she was about 20 years old.  She said that the appellant cable‑tied her hands above her head, over a clothesline that had been erected in the shed.  He then lifted her shirt, 'played' with and sucked her breasts, put his hands down her pants and digitally penetrated her vagina.  The appellant stopped what he was doing when he saw headlights coming up the driveway, and then cut the cable‑ties.[19]

    [19] ts 377 - 379.

16. As to counts 13 and 14, MF said that when she was about 18 years old, she began living alone at the house.  She recalled an incident one lunchtime, when the appellant came to the door while she was in the shower.  MF said that she ran to the door, wrapped only in a towel.  The appellant told her to change into a singlet and meet him in the bedroom, which she did.  There, she found the appellant lying on his back, on the bed.  He told MF to straddle him.  After MF did so, the appellant removed her singlet, 'played' with her breasts, penetrated her vagina with his fingers, and then, at his instruction, MF performed an act of fellatio.  While doing so, the appellant said, 'I really want to have sex with you'.[20]

    [20] ts 379.

17. As to count 15, MF recalled an occasion when she was in her early 20s, in the computer room, doing some work.  She recalled that the appellant entered the room, put his hands down her shirt and 'played' with her breasts, underneath her bra.[21]

    [21] ts 382.

18. As to count 16, MF recalled an incident at a time when she was dating her now husband.  She said that she was in the kitchen at the house situated on the farm.  MF said that she asked the appellant to give her a neck massage.  Her now husband and E were in the lounge room.  MF said that the appellant began massaging her neck and then shoved his hand down her shirt and squeezed her breast.  He said to MF, 'He is one really lucky guy' (referring to her now husband).  MF was about 25 years old when this offence allegedly occurred.[22] 

    [22] ts 382 - 383.

19. MF said that when she was a child, she tried to tell her mother about what the appellant was doing to her by writing letters to her.  She said that she found her letters in the rubbish bin.  MF also said that when she was about 12 years old, she had a conversation with her mother in which she asked her to get the appellant to stop what he was doing.  MF testified that her mother had replied, 'Deal with it or leave'.  Later, after the appellant had been released from prison, in a family conversation around the kitchen table, MF said that the appellant promised that he would 'never do it again', that he would 'be on his good behaviour' and that it would stop.  MF said that her mother and brother were present during this conversation.[23]

    [23] ts 384.

20. In her evidence, MF explained that she could never say no to the appellant, whom she described as having a 'very domineering personality'.  She said that she had to do what he said and give him whatever he wanted.[24]

    [24] ts 381.

21. MF testified as to the circumstances in which she reported to police the allegations with respect to her.  She said that on 1 February 2018, she became aware of an allegation that had been made against the appellant with respect to her niece, EF.  As a result, she contacted the police and later gave a statement about the things the appellant had done to her.  She said that she did this 'to protect my niece.  To help and support my niece.  To tell her that she wasn't alone in this'.[25]

    [25] ts 384 - 385.

22. When MF was asked why she did not report the matters to police until February 2018, she said because 'nobody in my family believed me'.  She said that her parents had a saying, 'Silly [MF].  Stupid [MF].  She got it all wrong'.[26]

    [26] ts 385.

23. In re‑examination, MF clarified an answer she had given in cross‑examination, in which she referred to 'an arrangement' she had with the appellant.  She said that the 'arrangement' occurred in the course of an argument she had had with the appellant, before the birth of her children.  She said that, during the argument, out of the blue, the appellant 'apologised for what he had done' to her.  MF said that she told him that if she ever found out that he had done this to anybody else, she 'would be the first person behind the complainant at the police station'.  According to MF, the appellant responded, 'Do what you must do'.[27]

Evidence of ED

[27] ts 435.

1. ED was born in early 1986.  She grew up in the same regional city as MF.  She first met the appellant when she was about 8 years old.  At the time, ED was living with her mother.  She lived with her mother until she was about 12 years old and then went to live with her father.  She described the appellant coming over to her mother's house 'quite often' to perform various household tasks.  From about the age of 9 years, ED would help him.  She testified that, once or twice, the appellant placed his hand on her bottom and held it there for a period of time.

2. When ED was about 10 years old, her mother asked her if she would like to work with the appellant.  She was told that the appellant would pay her 50 cents per hour.  ED agreed, and she worked for him on Sundays, three weeks in every four.

3. As to count 17, ED said that she and the appellant worked at an ambulance depot, gardening.  The appellant began to mention to her how he liked to touch girls and boys.  Then, he began touching her breasts, over her clothing.  Count 17 was the first time that he touched her breasts underneath her clothing.  The appellant placed his hand underneath her shirt and crop top and 'caressed' her right breast for about 30 seconds.[28]  ED said that she told her mother what the appellant did.  The next time the appellant came to her house, her mother asked him if what ED had said was true.  The appellant said that it was and that 'it wasn't a big deal'.  The appellant agreed not to do it again.  ED said that she felt relief when she overheard this.[29]

   [28] ts 465 - 466.

   [29] ts 466 - 467.

4. ED testified that she stopped working for the appellant for a while.  However, when she was about 11 years old, her mother asked her if she wanted to work with the appellant again.  ED agreed on the basis that she would be paid $1 per hour.  Initially, nothing happened between her and the appellant, other than the appellant again telling her how he 'liked to touch girls and boys'.  The appellant asked her if she had a boyfriend and, if she did, 'what would [she] do with him'.[30] 

   [30] ts 467.

5. ED said that when she was 11 years old, the appellant offered to teach her how to drive a car 'for an emergency situation'.  The appellant taught her to drive by placing her on his lap, so that she could steer the vehicle.  While she was on his lap, he usually touched her breasts.  Count 18 was the first time he did this.  ED said that the appellant put his hands underneath her bra and shirt and squeezed her breast, to the point that it hurt.  The appellant told her not to fight and that 'it was just a tickle'.  She said that the appellant touched her breast 'almost every week that [she] worked with him at that time'.[31]

   [31] ts 467 - 468.

6. As to count 19, ED said that when she was 12 years old, the appellant put his hand down her pants and placed his finger inside her vagina for the first time.  She recalled that she was sitting on his lap, learning to drive, but that the car was stationary on a gravel road in a newly developed area, where there were no houses.  Specifically, she said that the appellant placed his hand inside her underwear and put his finger inside her vagina.  The incident lasted between 15 and 30 seconds.  ED said that she did not tell her mother what had happened because she 'didn't see the point at that stage of telling her'.[32]

   [32] ts 469 - 470.

7. As to count 20, the appellant did 'the same thing' the weekend following the commission of count 19.  ED described the appellant as being 'quite forceful'.  The incident occurred on the same gravel road while she was sitting on the appellant's lap, in the driver's seat of his vehicle.  ED recalled asking the appellant, 'Why me?'.  The appellant said that it was because ED called him by his first given name, and not 'Mr [F]'.  She said that she asked the appellant to 'please stop, Mr [F]', and he did.  ED said that she did not tell her mother what had occurred on this occasion, describing her mother as 'a volatile person'.  She also explained that her relationship with her mother was 'very strained'.[33]

   [33] ts 470 - 471.

8. ED said that the last contact she had with the appellant was five or six weeks after the commission of count 20, when he asked her if she was interested in 'working for a sugar daddy'.  About six days after this conversation, she moved in with her father.

9. In April 2018, ED received a telephone call from a detective, concerning the appellant.  ED explained that she had not gone to the police herself because she did not want to 'live everything that [she] went through then'.[34]

Evidence of EF

[34] ts 472 - 473.

1. EF was born in 2010.  Her examination‑in‑chief comprised mostly her child witness interview, which was conducted on 2 February 2018. 

2. Relevantly to counts 21 - 23, EF told the interviewer that the appellant penetrated her vagina with his finger.  Relevantly to count 24, on 1 February 2018, at her sister's birthday party, the appellant encouraged her to pull down her top and expose her breasts, while taking photographs of her.

1. In EF's examination‑in‑chief:

   (1)she confirmed that the appellant sometimes played with her 'private parts', which she said meant her vagina, in the cellar and at the dining room table at the appellant's house at the farm;[35] and

   (2)she said there were other times the appellant played with her private parts.

   [35] ts 319, 322 - 323.

2. EF's cross‑examination included the following:

   (1)As to count 24, EF agreed that when the appellant took photographs of her, she was pretending to be a model.  When she pulled her shirt down from her shoulder, she said she did so because 'Pop told me to do it and then I did it'.[36]

   (2)EF confirmed that the appellant touched her vagina when she was in the cellar with him.  She said that her brothers and sisters were also there.  She said that it happened more than once, but was unable to say how many times altogether it happened in the cellar.[37]

   (3)EF said that when the appellant touched her vagina in the cellar, he touched her on the outside of her clothes.  She said she was sure that 'he wasn't just tickling [her]'.[38]

   (4)EF said that the appellant touched her private parts when she was sitting outside at the dining table, having tea.  She recalled that her grandmother, parents, brothers and sisters were there.  She said that the appellant touched her private parts on the outside of her clothing.[39]

   [36] ts 329.

   [37] ts 335 - 336.

   [38] ts 337.

   [39] ts 338.

3. In re‑examination, EF described how the appellant would touch her private parts on the outside of her clothing.  When asked what the appellant did with his fingers, she said, 'From the outside of my clothes he was sticking his fingers in my private parts'.[40]  She elaborated, 'he's gotten his hand and poked it inside my private part, from the outside'.  EF also said that he did the same thing when she was sitting on his lap, at the outside dining table.  She said the appellant was '[p]oking and playing with it … From the outside of my pants he was poking into my private part'.[41]

Evidence in respect of count 25

[40] ts 343 - 344.

[41] ts 344.

1. Detective Senior Constable Grieve was the principal investigating officer in the case. 

2. Relevantly to count 25, on 9 February 2018, police officers executed a search warrant at the farm and seized a number of computers from the study area and a granny flat.  Later, on 20 April 2018, the appellant's wife, E, handed to police officers a Lexar thumb drive.  The computer equipment and the thumb drive were later analysed and found to contain CEM. 

3. In defence counsel's opening address to the jury on 3 November 2020, an admission was made on behalf of the appellant that the items seized by police from the farm on 9 February 2018 and the Lexar thumb drive contained CEM. Written admissions, pursuant to s 32 of the Evidence Act 1906 (WA), signed by the appellant and his counsel and dated 4 November 2020, were tendered.[42]  A summary of the CEM found on each device was then read to the jury by defence counsel.[43]  It is unnecessary to detail the CEM, other than to note that it largely comprised images of young to very young children, as well as some anime cartoons or drawings.  Contained on one device were stories describing penetrative sexual activity between adult males and female children.  Some of these stories were titled '7 yld fingered once by granddad', 'Husband molested daughter' and 'It was in kindergarden [sic]'.

Evidence of VET

[42] Exhibit 1; BGAB 118 - 122.

[43] ts 573 - 576.

1. VET is the appellant's sister and, therefore, MF's aunt.  VET's testimony concerned only MF. 

2. VET said that in around 1996, when MF was about 18 years old, MF and her family, including the appellant, were part of a family reunion, held interstate.  VET said that she recalled an incident at the dinner table in which the appellant gestured to MF to sit on his knee, which she did.  She then saw him, as she put it, caress her breast with his thumb.

3. In 2007 or 2008, she said that she spoke to MF by telephone.  She said that MF was quite upset and told her that the appellant had visited her in her bedroom and had interfered with, or molested, her and had sexual relations with her.[44]  About a week later, VET spoke to MF again by telephone.  VET mentioned the incident referred to in the previous paragraph from when MF was about 18 years old.  In the course of this conversation, VET said that she suspected something had been happening between MF and the appellant, to which MF said, 'You weren't wrong [VET] and it's been happening for years'.[45]

Evidence of AYH

[44] ts 716.

[45] ts 717.

1. AYH said that she and MF worked together in the late 1990s at a country hospital.  They became friends and socialised together.  She recalled an occasion when MF became very upset and told her that her father (ie, the appellant) had interfered with her as a young child.  AYH testified that MF did not go into any specifics but said, 'My father abused me'.[46]

Evidence of P

[46] ts 731.

1. As already stated, P is the appellant's son and MF's brother.  He has seven children with his partner, one of whom is EF.

2. P recalled a childhood memory that, he said, stood out for him.  He said that when he was around 6 years old, he remembers running into MF's bedroom one morning.  There, he saw the appellant and MF on her bed.  Both of them were naked.  He said that it looked like they were 'spooning'.  He said that he was surprised and walked out of the room.[47]  P recalled visiting the appellant in prison with MF and his mother in the early 1990s. 

   [47] ts 742 - 743.

3. P testified that after the appellant was released from prison, he recalled, when he was around 9 years old, a family meeting held at the kitchen table.  The appellant, E, MF and he were present.  P said that he told the appellant something along the lines of 'if [the appellant] wanted to be part of the family, he was to stop going into [his] sister's room and obviously scaring her'.  P said that the appellant agreed that it would not happen again.[48]

   [48] ts 743 - 744.

4. P testified about events he witnessed on 1 February 2018, when his youngest daughter's first birthday party took place at a park.  P said that the 'whole family' was there, including the appellant, who had his camera with him.  P said that he left the park at around 7.00 pm to go home and have dinner.  He saw the appellant helping his partner put the children into the car.  P testified that at the dinner table that night, EF pulled her top up or down to expose 'her chest area'.  He told her that the action was 'inappropriate'.  EF responded, 'Well, Pop [the appellant] likes to see my boobies'.[49]  Later, P spoke to EF in her bedroom.  EF said that 'she likes Pop to see her boobies and to take photo[s] of them'.[50]  EF also said that the appellant had told her, 'This is our secret'.  She also said that 'Pop puts … his hand down her pants and plays with her private parts'.[51]

   [49] ts 747.

   [50] ts 748.

   [51] ts 749.

5. P said that after telling his mother, in general terms, what EF had told him, he called the police.[52]

Evidence of SMLJ

[52] ts 749.

1. SMLJ is P's partner.  She testified that on 1 February 2018, she was with her extended family at a park for her youngest daughter's birthday.  She said that the appellant was there with his camera, which he used to take photographs of family members.

2. SMLJ recalled that, at one point, the appellant helped her put her children into the car.  He was on the passenger side, where EF was, with his camera.  She said that the appellant looked like he was taking photographs.  SMLJ said that, while he did so, she saw EF pull down her top and direct her chest straight to the appellant and to the camera that was around his neck, on a lanyard. 

3. That night, at dinner, SMLJ said that EF 'pull[ed] her top down as if to show that she has a cleavage'.  EF then said, 'Pop likes to see my boobies' and that it was 'top secret'.  SMLJ said that EF referred to the appellant as 'Pop'.[53]

Evidence of E

[53] ts 760.

1. E is the appellant's wife and the mother of MF and P.  She and the appellant were married in 1976.  Relevantly, E said that:

   (a)In 1989, she began full‑time work and that, generally, when she came home from her job, the appellant and her two children were at home.

   (b)The appellant had a motorcycle when the children were growing up.

   (c)When the appellant was in prison in the early 1990s, she would visit him, along with the children.  She thought that MF was aged 12 or 13 at this time.

   (d)The appellant had a video camera, which he used on family holidays.

   (e)In 1993, she and the appellant purchased a block of land (the farm) on which a shed was constructed.  She said that there was a clothesline in the shed, which she described as being not very tall.  She supposed that it was about 5 feet 5 inches off the ground.

   (f)E identified a photograph of the cellar.  She said that in 2017, P, SMLJ and their children would visit the farm and that the appellant would take the children around the property, including into the cellar.

2. E recalled attending the birthday party at the park on 1 February 2018.  She said that the appellant was present with his camera.  That night, she had a conversation with P on the telephone.  After the conversation, she spoke to the appellant and told him that P had said that the appellant had been 'mucking around with [EF]'.  The appellant denied it and said that MF's husband had made it up.[54]

   [54] ts 779 - 780.

3. E said that the appellant was arrested on 5 February 2018 and that the police seized items from the farm, with her consent, on 9 February 2018.  E said that she and the appellant owned an unbranded desktop computer, which the police seized from the granny flat, and an HP desktop computer, which was seized from the study.  She said that the appellant used both computers 98% of the time and that no one else, except her, had ever used them.  Nor was either computer ever loaned to anyone.  She said that she had never accessed pornography on either computer.  E also said that she found a Lexar thumb drive belonging to the appellant in the study, which she handed to police on 20 April 2018.

4. Under cross‑examination, E agreed that MF's husband had a bad and strained relationship with the appellant.  She agreed that she and the appellant had loaned MF and her husband money on numerous occasions over the years, including a sum of $40,000.  E agreed that the appellant issued a summons against MF and her husband to recover the sum of $40,000.  In re‑examination, E confirmed that the $40,000 was paid back by MF in 2018, after the appellant had been arrested.[55]  This payment was confirmed by a receipt, tendered through Detective Senior Constable Grieve.[56] 

   [55] ts 799.

   [56] Exhibit 32.

5. E said that the appellant made most of the decisions in the family and would get angry if he was contradicted or told no.[57]  E said that she did not recall MF ever telling her about what the appellant was doing to her, and she did not recall any family meetings or discussions after the appellant got out of prison.

Evidence of LV

[57] ts 770.

1. LV was called by the State.  Her examination‑in‑chief only involved establishing that she was E's sister and, therefore, MF's aunt.  It is clear enough that she was called by the State out of fairness to the appellant, whose counsel was then able to cross‑examine her.

2. Under cross‑examination, LV confirmed that she was at the birthday party for EF's younger sister on 1 February 2018.  She said that she did not recall anything untoward occurring at the park.

3. LV said that she remembered that, in December 2017 or possibly January 2018, MF had told her that she spent long periods of time in the bathroom as a means of keeping safe from her father.[58]

Evidence of Detective Senior Constable Grieve

[58] ts 737.

1. As already mentioned, Detective Grieve was the principal investigating officer in the case.  He began his involvement in the matter on 2 February 2018, initially as a result of the complaint made by EF's parents. 

2. On 5 February 2018, the appellant was arrested in relation to the charges involving EF.  Later that day, a search was conducted of the farm and photographs were taken of various buildings on it, including a shed and a fire shelter, which was also referred to as a cellar.[59]

   [59] Exhibits 4 and 5.

3. On 6 February 2018, MF contacted Detective Grieve.  On 1 March 2018, she signed a statement.  She also provided four photographs that were taken of her when she was a young child.[60]

   [60] Exhibit 6.

4. On 8 February 2018, Detective Grieve was examining a Nikon COOLPIX B500 camera that had been in the appellant's possession on 5 February 2018.  Detective Grieve noticed that four photographs were missing from the sequence of photographs taken on 1 February 2018.  These missing photographs were later recovered by officers from the Technology Crime Services unit in Perth and showed EF on a climbing frame, in a park.[61]

   [61] Exhibit 14.

5. On 9 February 2018, police returned to the farm and seized a number of computers from the study area and a granny flat.  It was on these devices and the Lexar thumb drive that the CEM the subject of count 25 was discovered.

6. On 7 March 2018, police officers attended at the house and took a number of photographs.  While there, Detective Grieve found a hole in the wall between the laundry and the bathroom, although something was blocking the hole on the bathroom side.  Detective Grieve used a forensic swab to measure the depth of the hole and to check it was not just a drill hole.  When the forensic swab was inserted, he could hear it rebounding off the cupboard that was mounted in the bathroom.[62]

   [62] ts 647.

7. Detective Grieve testified that on 12 March 2018, the appellant was charged with the offences in respect of MF.  On or about 23 May 2018, the appellant was charged with the offences relating to ED.  On 11 July 2018, the appellant was charged by summons with possession of CEM.

8. Detective Grieve said that Technology Crime Services provided him with a report which contained details of a number of websites that were accessed from the computers seized by police, as well as bookmarks that were saved onto the computers.  The bookmarks from one of the computers were detailed in a two‑page document, which was tendered and marked as exhibit 15.  The websites and their content refer to intrafamilial sexual behaviour.

9. Detective Grieve read to the jury a four‑page bundle of documents, which contained three stories classified as CEM.  The CEM stories were found on the unbranded desktop computer, which was seized by police from the granny flat at the farm.[63]  One story, entitled 'Amanda', concerned a 13‑year‑old girl engaged in an incestuous relationship with her father.  The other stories were entitled 'Husband Molested Daughter' and 'I was just [a] little girl'.  The latter story concerned a grandfather who touched his granddaughter's genitals and digitally penetrated her vagina.  The stories were not tendered.

   [63] ts 627 - 632.  See also MFI 5.

10. Later, the prosecutor recalled Detective Grieve.  He confirmed that he had obtained a receipt from MF dated 13 August 2018 in relation to the repayment of a loan made by the appellant to her in the sum of $40,000.

Evidence of Senior Constable Osborne

1. Senior Constable Osborne was, at the relevant time, attached to the Technology Crime Services unit.  He examined a number of the appellant's devices, including the computers, the Lexar thumb drive and the Nikon COOLPIX B500 camera, and produced an analysis report about his findings.  It is unnecessary to summarise his evidence in any detail, other than to observe that, in cross‑examination, while he accepted the possibility that unsolicited material could be automatically downloaded onto a computer, he thought it was very unlikely that CEM would be automatically downloaded from an adult pornography website.  If it had been automatically downloaded, such material would only be found in the cache of a computer, which was not the case here.

Other admissions made by the appellant pursuant to s 32 of the Evidence Act

1. The appellant made other admissions pursuant to s 32 of the Evidence Act.  He admitted, relevantly to counts 13 and 14, which concerned MF, that 'in about 1996 at about lunchtime at [a specified address] he was on his back on the bed when [MF] got on top of him wearing only a singlet st[r]addling him'.[64]

   [64] BGAB 125.

2. The appellant also admitted, relevantly to counts 17 and 18, which concerned ED, that:[65]

   1.On 6 December 2002, the [appellant] was convicted of the offence of 'Indecent dealing with a child under the age of 13 years' pursuant to s 320(4) of the [Code].

   2.The victim was a 12‑year old girl at the time of the offence and the [appellant] was 45 years old.  The [appellant] was a gardener who from time to time employed schoolchildren for relatively small amounts of money to assist him.  He was friends with the victim's mother who arranged for the [appellant] to employ the victim.

   3.On 9 September in 2001, the victim was unable to work because she had a sore shoulder.  After work, the [appellant] went with her to her home.  Her mother, her young sister and a lodger were there.  There was a games room in the back garden.  While the victim was playing a game with the [appellant], he gave her a neck massage with her mother's permission.  After her mother left the room, the [appellant] put his hands under her shirt, lifted her sports bra up above her breasts and fondled them.  He ceased when he heard the victim's mother returning.

The defence case

[65] Exhibit 2, BGAB 123 - 124.

1. Put simply, the defence case was that none of the sexual acts alleged in counts 1 ‑ 24 occurred.  In respect of count 25, the appellant asserted that he had an extensive collection of adult pornography and that the CEM was a very small fraction of this collection that had been unknowingly downloaded onto the various devices seized by the police.  While he accepted that all of the material constituted CEM, he denied that he possessed and controlled it.

2. The appellant sought to undermine the credibility of the complainants.  In the case of each of them, the appellant said that there were aspects of their testimony about the alleged sexual acts which were inherently unlikely.  For example, in the case of MF, it was highly unlikely that the appellant would commit an offence in the visitor's room in a prison, given the number of people in the room, the presence of prison officers, and the surveillance systems that would have been in place.  In the case of EF, it was highly unlikely that the appellant would have touched her either in the cellar or at the dining room table, where others were present.

3. In the cases of MF and ED, defence counsel cross‑examined each of them, suggesting that aspects of their testimony were inconsistent with their police statements.  This was particularly so in the case of MF.[66]

   [66] For example, see ts 405, 413 - 414.

4. Also in the cases of MF and ED, it was suggested that the various sexual acts allegedly committed by the appellant did not occur because neither of them made a prompt complaint about his conduct.  ED had only complained to her mother once about the appellant touching her breasts, but told no one about the sexual penetrations, which were more serious.

5. In respect of MF, it was suggested that she had brought false allegations against the appellant as revenge for him suing MF and her husband for the sum of $40,000, being money owed by them to the appellant and his wife.

6. The appellant, as he was entitled, invoked his right to silence and did not give evidence at his trial.  The only evidence adduced as part of the defence case came from JM, who is E's sister and MF's aunt.  Although JM had been spoken to by the police in the course of the investigation into the alleged offences in respect of MF, the police did not take a witness statement from her.  Prior to the close of the State's case, defence counsel submitted, in the absence of the jury, that the trial judge should 'strongly recommend to the prosecutor' that JM be called by the State.  Alternatively, he suggested the court should call her as a witness.  If his Honour was not prepared to take either of these courses, defence counsel foreshadowed making an application to issue a witness summons, compelling JM to appear as a defence witness.

1. The trial judge ruled that the State was under no obligation to call JM, and he was not prepared to strongly recommend to the State that she be called.  His Honour also declined to call the witness himself but said that the appellant was free to summons her and, if he took that course, an order would be made for the early return of the subpoena.  In the end, JM was, as I have said, called as a defence witness.

2. JM said that she stayed with the appellant's family at the farm when MF was still at school, and that she had quite regular contact with the family, who appeared to her to be fairly close.

3. JM said that she took MF to Singapore for a holiday when MF was 14 years old.  JM did not recall MF telling her anything in relation to the allegations of sexual misconduct which had been brought against the appellant.[67]

The appellant's application to adduce additional evidence

[67] ts 832, 834 - 835.

1. Before addressing the grounds of appeal against conviction and the issues raised in them, it is necessary to address the appellant's application to adduce additional evidence in the appeal against conviction.

2. The application, which is dated 31 March 2022 but was filed on 7 April 2022, seeks leave to adduce evidence contained in three affidavits, each sworn by the appellant on 4 April 2022.

3. The first affidavit comprises a single page and contains six paragraphs.  In it, the appellant seeks to explain why he wishes to adduce the evidence set out in the other affidavits.  The appellant claims that '[t]he new evidence may point to the truth of the matter …'.  The appellant states that 'some' of the material was not produced 'in previous court hearings' and shows 'facts that were not brought to the attention of the jury'.[68]

   [68] Yellow application book (YAB) 3.

4. The second affidavit comprises 12 pages and 109 paragraphs.  Rather than containing evidence, the document comprises, in part, submissions purportedly in support of the grounds of appeal, and in other parts, commentary and criticisms of the conduct of the police, the DPP, the trial judge and defence counsel.  Insofar as the affidavit contains evidence, and leaving aside for the moment any questions of relevance, the appellant purports to put before this court the 'truth' in respect of the alleged offences, in circumstances where, at trial, he invoked his right to silence.

5. The third affidavit seeks to adduce as additional evidence in the appeal 25 documents, marked as exhibits 1 ‑ 25.  They appear designed to support the material in the second affidavit.

6. The respondent has taken a pragmatic view to the contents of the appellant's affidavits.  Broadly speaking, the respondent does not object to the paragraphs in the affidavits that amount to submissions or that seek to adduce material potentially relevant to the alleged misconduct by the police and the DPP.[69]  However, the respondent objects to large portions of the affidavits on various bases, including relevance.[70]

   [69] See sch A of respondent's answer, WAB 70 - 71.

   [70] See sch B of respondent's answer, WAB 72 - 74.

7. Having regard to the respondent's position and bearing in mind that the appellant is an in‑person litigant, I will have regard to the submissions contained in the affidavit insofar as they support a ground of appeal.  I will also have regard to material in the affidavits potentially relevant to the alleged misconduct by the police and the DPP.  As to any other matters of evidence, I would not give leave to the appellant to adduce the material.  This is for two reasons.

8. First, the evidence is irrelevant. For example, in the second affidavit, the appellant gives an account of MF's life after she completed year 12,[71] and an alleged incident involving MF's husband that had no connection whatsoever to the events in issue at trial.[72]  With respect to EF, at one point in his second affidavit, the appellant described her (then aged 7 years) as 'modelling and practising her coy‑flirty look'.[73]  In respect of ED, at one point in the appellant's second affidavit, he described her behaviour towards him as involving 'experimental flirting'.[74]

   [71] Appellant's second affidavit, pars 4 - 5; YAB 5.

   [72] Appellant's second affidavit, pars 20 - 21; YAB 7.

   [73] Appellant's second affidavit, par 46; YAB 9.

   [74] Appellant's second affidavit, par 78; YAB 13.

9. Secondly, and assuming that the evidence the appellant seeks to adduce is admissible, I would not exercise the discretion in s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to permit its admission in this appeal. The relevant legal principles with respect to the admission of evidence in an appeal pursuant to s 40(1)(e) of the Criminal Appeals Act are set out in Clarke v The State of Western Australia.[75]  These principles were referred to with approval by this court in Sturniolo v The State of Western Australia.[76]  I adopt without repetition what was said in these cases.

   [75] Clarke v The State of Western Australia [2018] WASCA 14 [236] ‑ [252].

   [76] Sturniolo v The State of Western Australia [2023] WASCA 147 [234] ‑ [240].

10. The evidence that the appellant seeks to adduce in the present case is all 'new' and not 'fresh' evidence.  Accordingly, the appellant will suffer no miscarriage of justice unless he can demonstrate that the new evidence establishes that he is innocent, or raises such a doubt that this court is satisfied that a jury who had heard the evidence at trial, combined with the additional evidence, must, as distinct from might, have had a reasonable doubt.

11. The evidence sought to be adduced by the appellant falls a long way short of this test.

12. Moreover, it must be borne in mind that the appellant invoked his right to silence and did not give evidence at trial.  He does not allege any miscarriage of justice arising from this decision.  He cannot now seek to give evidence on appeal that amounts to a positive defence.  It is not in the interests of justice for an accused person, such as the appellant, to exercise the right to silence at trial and then, after conviction, seek to put before an appeal court the 'true' situation in respect of the alleged offences and ask the court to act upon it.  An accused person is, ordinarily, bound by the forensic choices made at trial.  An appeal is not an opportunity to attempt to re‑run a trial in a manner which, with the benefit of hindsight, the offender wishes he or she had run at first instance.

13. Other than to the extent referred to in [109] above, the appellant's application to adduce additional evidence in his appeal against conviction should be dismissed.

Grounds of appeal - appeal against conviction

1. The appellant relies on four grounds of appeal, all of which are expressed in unorthodox terms, as follows:

   I. Improper Joining of Indictments.                   Error of Fact and Law

   1)improper joining

   2)inadmissible Propensity and Similar Fact Evidence

   3)CEM

   4)[EF]

   5)[ED]

   6)[MF]

   2. Direction to counter prejudice incompetent.                 Error of Law

   1)Primary judges rulings

   3. Propensity & Directions handout                   Error of Fact and Law

   1)Misleading & Bias

   2)Confusing and over burdensome

   3)Leading and suggesting guilt

   4.[77] DPP and their agents WA Police not having acted as a model
   litigant.  Prior to and during the trial has resulted in a miscarriage of justice   Error of Fact and Law

   [77] On 18 November 2021, the appellant was granted leave to amend his grounds of appeal to include a further ground of appeal alleging that the conduct of the office of the DPP, prior to and during the trial, resulted in a miscarriage of justice.  Ground 4 was added by the appellant in purported compliance with this order.  Its scope is broader than the order, but the respondent has taken no objection to the ground of appeal as pleaded.

   A) Police interview irregularities.

   i)     With defendant, witnesses and others

   1)    Defendants right to silence

   2)    Intimidation and bullying tactics during interviews

   3)    Failing to take statements off relevant and material witnesses.

   B) Magistrates court,

   i)     Interfering in bail application

   1)    False firearms charge

   2)    Excessive and incorrect numbers of CEM images

   3)    Misuse of VRO system

   4)    Directing interfering in [MF's] VRO removal

   C) District court

   i)     Preliminary hearings

   1)    Failing to follow full disclosure rules and obligations

   2)    Certiorari

   ii)    Severance/Joiner hearing 25.09.2019 & 14.10.2019

   1)    Misdirecting the primary judge

   2)    Orders regarding pre‑recording ignored.

   iii)   Pre‑recording

   1)    Leading Questions followed by creative editing

   2)    Prosecutors bullying behaviour

   D) During the trial

   1)    CEM admission improperly used

   2)    Old conviction inadmissible evidence

   3)    Browne v Dunn

   4)    Treating evidence in chief as an exhibit

   5)    Late inclusion of alternate charge

   6)    Judged raised Questions regarding the dedication of the Jury

   E) DPP not having acted in a fair and proper manner. contrary to expectations.

   1)    Misinformation to my Lawyer

   2)    Slow response to requests

Appeal against conviction - the real issues

1. After considering the grounds of appeal and the appellant's written and oral submissions, it is apparent that the real issues to be decided in the appeal against conviction are:

   (1)Were the 25 counts properly joined in the one indictment, having regard to the relevant provisions of the Criminal Procedure Act 2004 (WA) (CPA)?

   (2)If the counts were properly joined, should they nevertheless have been severed in the manner sought by the appellant?

   (3)Did the trial judge give directions to the jury that adequately guarded against the jury reasoning 'that merely because the accused engaged in similar conduct he must be guilty of the offence charged'?[78]  Further, did the trial judge give directions that adequately guarded against any prejudice caused to the appellant by reason of 'hostile feelings' that may have been aroused by the nature and the number of charges against him?

   (4)Were the directions (including written handouts) given by the judge to the jury concerning the admissibility and application of propensity evidence confusing and burdensome?  Further, were they 'biased', and unbalanced to the defence and suggested his guilt?

   (5)Did the appellant suffer a miscarriage of justice as a result of the various complaints made by the appellant in ground 4; in particular, but not only, his complaints against the DPP and the WA police?

   [78] See amended appellant's case, par 46; WAB 17.

2. I observe that the appellant does not challenge the admissibility of the evidence, notably the propensity evidence, adduced at trial, other than to the limited extent referred to in [156] ‑ [160] below.  Further, the appellant's challenge to Gething DCJ's directions is limited to the matters referred to in issues 3 and 4.  He does not challenge the correctness of the directions that were actually given.

The procedural history

1. I will deal with these issues separately in the order set out above, although, as will be apparent, there is some overlap in their content.  Before doing so, it is necessary to set out in greater detail the procedural history before both Stavrianou DCJ and Gething DCJ.

2. The appellant was charged on 5 February 2018 with offences in respect of EF.  MF then complained to police, and the appellant was charged with respect to offences against her on 12 March 2018.  ED then complained to police, and on 23 May 2018, the appellant was charged with offences against her.  Finally, on 11 July 2018, the appellant was charged with possession of CEM.

3. On 24 April 2019, two indictments were signed and then filed in the District Court.  Indictment A of 2018 alleged offences against MF and ED.  Indictment B of 2018 alleged offences against EF and a charge of possession of CEM.

4. After the filing of the indictments, the appellant filed an application seeking to sever the counts in the two indictments in a way that would result in there being four trials.  The appellant sought a separate trial in relation to the charges with respect to each complainant and a trial in relation to the charge of possession of the CEM.

5. The State filed a number of applications of its own. Relevantly, the State sought the joinder of all the counts in the two indictments into one indictment, dated 3 July 2019. In support of this application, the State submitted that, pursuant to s 31A of the Evidence Act, the evidence in counts 1 ‑ 10 involving MF was admissible to prove counts 21 ‑ 24 involving EF. The State further submitted that the allegations the subject of counts 1 ‑ 24 were admissible in relation to count 25, and count 25 was admissible in the proof of counts 21 ‑ 24. The State also sought to adduce evidence, pursuant to s 31A of the Evidence Act, of the conduct of the appellant relating to a prior conviction for a single offence of indecent dealing with a child under the age of 13 years, committed on 9 September 2001, in the proof of counts 17 and 18, the alleged indecent dealing with ED.  In addition to these applications, the State filed applications for other orders, including orders that MF and ED be declared special witnesses, and that the evidence of MF, ED and EF be pre‑recorded.

6. All of the abovementioned applications were heard by Stavrianou DCJ on 14 October 2019.  At the time, the appellant was self‑represented.  He said, at the hearing, that he wished to proceed without representation.[79]

   [79] ts 121, 123.

7. On 24 October 2019, Stavrianou DCJ dismissed the appellant's application for separate trials.  He allowed the State's applications, including the State's applications to join the charges in the two indictments so that all of the offences were included on one indictment and tried together.

8. Stavrianou DCJ gave detailed reasons for his decision.[80] 

   [80] ts 186 - 219.

9. Stavrianou DCJ noted that the issues that were likely to arise at trial were whether the appellant committed the sexual misconduct alleged in counts 1 ‑ 24 and whether he possessed the CEM the subject of count 25.[81] His Honour then addressed the issue of admissibility of the various charges under s 31A of the Evidence Act. His Honour concluded that the evidence of MF in relation to counts 1 ‑ 10 was admissible in relation to counts 21 ‑ 24 involving EF. His Honour accepted the State's submission that there were common features in the offending the subject of the respective sets of charges, namely the nature of the offending, which involved the digital penetration of the vagina of a young female child who was related to the appellant. Addressing the criteria for admissibility under s 31A of the Evidence Act, his Honour found that the evidence in respect of counts 1 ‑ 10 was significantly probative to the proof of counts 21 ‑ 24.[82]  His Honour was also satisfied that the probative value of the evidence compared to the degree of risk of an unfair trial was such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (the fair‑minded people test).[83]

   [81] ts 201.

   [82] ts 201 - 202.

   [83] ts 204.

10. Stavrianou DCJ also found that the evidence of MF in relation to counts 1 ‑ 10 (but not counts 11 ‑ 16) and counts 17 ‑ 24 in relation to ED and EF were admissible in the proof of count 25.  His Honour found that counts 1 ‑ 10 and counts 17 ‑ 24 showed a propensity on the part of the appellant in the form of a sexual interest in the same class of persons featured in the CEM in count 25.  His Honour noted that in respect of the facts and circumstances surrounding count 24, in which it was alleged that the appellant procured or encouraged EF to expose her breasts so that he could photograph them, he was, in effect, producing CEM of the kind alleged in count 25.  His Honour found that counts 1 ‑ 10 and counts 17 ‑ 24 were significantly probative with respect to the proof of count 25, and that the fair‑minded people test was satisfied.[84]

    [84] ts 202 - 204.

11. Stavrianou DCJ also found that the CEM, or at least part of it, was significantly probative in the proof of counts 21 ‑ 24 because count 25 showed a sexual interest in young biological relatives and a sexual interest in indecently dealing with them in the same manner alleged in counts 21 ‑ 24.  His Honour also found that the fair‑minded people test was satisfied.[85]

    [85] ts 203 - 204.

12. Stavrianou DCJ said that his ruling with respect to the use of the CEM the subject of count 25 was subject to a caveat that the matter might require revisiting by the trial judge if the CEM contained category 5 and category 6 material involving bestiality (which, as it turned out, it did not).[86]

    [86] ts 205.

13. Having made these rulings, Stavrianou DCJ addressed the statutory provisions in the CPA (which are set out below) relevant to joinder and severance. His Honour found that the charges were properly joined in the one indictment. His Honour said that he was satisfied that the evidence in relation to the offences was connected and that a sufficient nexus existed that justified their joinder. His Honour found that the offences formed, or were part of, a series of offences of the same or a similar character.[87]  As to the appellant's application for severance, his Honour reiterated the factual nexus that existed between the offences.  Stavrianou DCJ accepted that, while not all of the evidence in relation to each count was cross‑admissible, he was satisfied that directions could be given by the trial judge to overcome any prejudice to the accused.[88]

    [87] ts 208 - 209.

    [88] ts 210 - 212.

14. Stavrianou DCJ also considered and allowed the State's application to adduce evidence pursuant to s 31A of the Evidence Act of the conduct the subject of the prior conviction referred to above at [123], in proof of counts 17 and 18.[89]

    [89] ts 212 - 213.

15. The appellant secured legal representation not long before the pre‑recording of the complainants' evidence between 2 and 4 June 2020.  He was represented by the same defence counsel at the pre‑recording and at the trial.

16. Just prior to the commencement of the appellant's trial, the trial judge, Gething DCJ, ruled on a number of issues in the absence of the jury. Relevantly, the State foreshadowed an expansion of the case it put before Stavrianou DCJ in respect of the cross‑admissibility, pursuant to s 31A of the Evidence Act, of the evidence it sought to adduce at trial. The State's entire case as to cross‑admissibility (which included the evidence that had been the subject of the rulings by Stavrianou DCJ in its favour) was put to the court by means of a written application dated 3 November 2020. As will be seen, the State alleged that there were 15 categories in which the evidence to be adduced by the State was cross‑admissible pursuant to s 31A of the Evidence Act.  The State's application was not opposed by defence counsel and was granted by Gething DCJ in the terms sought.[90] 

    [90] ts 535.

17. While lengthy, it is both convenient and necessary to set out the 15 categories contained in the State's application.  Categories 1 ‑ 13 refer to definitions in Annexure A to the application.  Category 14 refers to Annexure B to the application, which lists 11 bookmarked websites and documents found on internet browsers of the appellant's HP desktop computer that formed part of the CEM the subject of count 25.  It is, in substance, the same document referred to in [88] above.  Given its content, it is unnecessary to reproduce it in these reasons. 

18. The application sought orders that:

    1)Counts 1 - 10 are cross admissible with each other as 'complainant propensity' as defined in Annexure 'A'.

    2)Counts 1 - 10 are admissible with respect to Counts 11 ‑ 16 as 'relationship' evidence as defined in Annexure 'A'.

    3)Counts 1 - 10 are admissible with respect to Counts 21 ‑ 24 as of 'Intra‑Familial Propensity' evidence as defined in Annexure 'A'.

    4)Counts 1 - 10 are admissible with respect to Count 25 as 'CEM propensity' as defined in Annexure 'A'.

    5)Counts 11 - 16 are admissible with respect to Counts 1 - 10 as 'relationship' evidence as defined in Annexure 'A'.

    6)Counts 11 - 16 are cross admissible with each other as 'relationship' evidence as defined in Annexure 'A'.

    7)Counts 17 - 18 are cross admissible with each other as 'relationship' evidence as defined in Annexure 'A'.

    8)Counts 17 - 18 are cross admissible with Counts 19 ‑ 20 as 'relationship' evidence as defined in Annexure 'A'.

    9)Counts 17 - 18 are admissible with respect to Count 25 as 'CEM propensity' as defined in Annexure 'A'.

    10)Counts 19 - 20 are admissible with respect to Counts 17 ‑ 18 as 'relationship evidence' as defined in Annexure 'A'.

    11)Counts 19 - 20 are cross admissible with each other as 'relationship' evidence as defined in Annexure 'A'.

    12)Counts 19 - 20 are admissible with respect to Count 25 as 'CEM propensity' evidence as defined in Annexure 'A'.

    13)Counts 21 - 24 are cross admissible with each other as 'relationship' evidence as defined in Annexure 'A'.

    14)Some evidence with respect to Count 25 is admissible with respect to Counts 21 ‑ 23 as 'CEM Intra‑familial' evidence.  That evidence is as follows:

    i)The story entitled 'husband molested daughter'.

    ii)The story entitled 'Amanda'.

    iii)The story entitled 'I was just little girl'

    iv)The bookmarks contained in Annexure 'B'

    The act of accessing and possessing those stories and websites demonstrates that the [appellant] had an interest of a sexual nature in young girls aged approximately 5 to 13 years who were biologically related to him and a preparedness to act upon that interest.  Common features between the sexual conduct described in the aforementioned stories and the conduct the subject of Counts 21 to 23 include penetrative sexual activity like digital penetration of the vagina and the touching of genitalia.  This evidence is substantially probative in assessing whether the accused committed the acts with respect to Counts 21 ‑ 23.

    15)The Category One CEM images with respect to Count 25 are admissible with respect to Count 24 as propensity evidence.  The act of accessing and possessing those images demonstrates that the [appellant] had an interest of a sexual nature in young girls aged approximately 4 to 14 years and was prepared to take steps to obtain and possess those images of young girls of a sexual nature.  Common features between these Category One CEM images and the alleged conduct the subject of Count 24 include the fact that they involved young girls of the aforementioned age range posing in a sexually suggestive manner with an emphasis on genitalia.  This evidence is substantially probative in assessing whether the [appellant] 'encouraged or procured' the complainant to commit an indecent act.

1. At the hearing of this appeal, counsel for the respondent, Ms Cook, said that the respondent had not been able to obtain any material from Casuarina Prison that either confirmed or denied the matters referred to in the previous paragraph.  Ms Cook, in effect, said that the respondent did not dispute this material.[175]

   [175] Appeal ts 38 - 39.

2. The appellant told the court that, at the time of the hearing, he was still at Casuarina Prison but added, 'as soon as this [appeal] is finished, they will ship me out of Casuarina'.[176]

   [176] Appeal ts 40.

3. The evidence before this court as to the conditions of the appellant's detention, particularly in the future, is sparse.  I am prepared to assume in the appellant's favour that his incarceration in Casuarina Prison has been, to an extent, more arduous than that of an ordinary prisoner.  However, the more arduous conditions to which the appellant is subjected are due to the nature of the offences he committed.  While this does not deprive him of any leniency or discount, the degree of leniency or discount in such circumstances will not generally be as great as others, such as police informers or offenders suffering from a disability.[177] 

   [177] Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 [26]; R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 [214] (Gray J); The State of Western Australia v O'Kane [2011] WASCA 24 [66].

4. It is a notorious fact that persons convicted of offences against children are at risk of reprisal in prison, although the appellant has not apparently been subject to such action.  While the appellant has, so far, served his sentence in protective custody, it is not known whether his entire sentence, or some proportion of it, will be served in such conditions.

5. Any mitigation for the appellant being in protective custody must be weighed against all of the other sentencing factors in the present case.  When this factor is weighed along with all of the other relevant sentencing considerations, which I will refer to later in these reasons, the mitigation that could be given to the appellant for being in protective custody is not significant and would not, in my view, result in a different total effective sentence to the one that was imposed by the sentencing judge.  In these circumstances, the appellant has not suffered any miscarriage of justice.  While I would grant leave to appeal, ground 1 has not been made out.

Ground 3 - the psychological and pre‑sentence reports

1. The appellant asserts that the authors of the psychological and pre‑sentence reports 'were not, and should have been, more fully informed'.  The appellant also alleges that the reports 'were based on corrupt information', by which I understand the appellant to mean that the authors of the reports were provided with incorrect information.

2. There is no merit at all to this ground of appeal.  The matters in respect of which the appellant alleges the authors of the psychological and pre‑sentence reports should have been, but were not, informed, are either immaterial or peripheral in their importance, and could not reasonably have led to, in particular, Ms Zuin forming a different and more favourable assessment of the appellant's psychological profile and his offending behaviour.  Nothing raised by the appellant about the reports in his written submissions in his amended appellant's case and the affidavit undermines the opinions given by Ms Zuin as to the appellant's personality, his sexual attraction to children, his treatment of the victims in the present case as sexual objects, his treatment needs, his resistance to efforts to address his offending, his absence of remorse, and his risk of recidivism.

3. It is relevant to note that when defence counsel was specifically asked, in the sentencing hearing, whether the appellant took particular issue with anything in the reports, defence counsel answered in the negative.[178]  A short time later, defence counsel was given the opportunity to speak to the appellant about an aspect of the psychological report that referred to correspondence from Narcotics Anonymous.  The sentencing judge then gave defence counsel a 10‑minute adjournment to take the appellant's supplemental instructions in relation to the entirety of the sentencing proceedings up to that point.[179]  Upon resumption, defence counsel, apparently having taken instructions from the appellant, made no submission about the matters now raised by the appellant in support of ground 3.

   [178] ts 1033.

   [179] ts 1036 - 1037.

4. Ground 3 has no reasonable prospect of succeeding.  I would refuse leave to appeal in respect of it.

Ground 4 - the appellant's offer to plead guilty

1. It is accepted that, at an early stage in the proceedings, the appellant's then lawyer wrote to the police offering to plead guilty to a single offence of indecent dealing with EF, on the basis that on one occasion the appellant touched EF's genital area on the outside of her underwear.  This offer was not accepted by the prosecution and the offer was not maintained by the appellant.  At no stage, whether at the pre‑recording or the trial, did the appellant admit indecently touching EF.  To the contrary, the appellant ran his defence in relation to EF on the basis that he had not indecently dealt with her.

2. In the sentencing proceedings, a submission was made on the appellant's behalf that, somehow, the appellant's offer to plead guilty was mitigating.  His Honour rejected this submission, stating that he was not prepared to place any mitigatory weight on the offer.[180]

   [180] Sentencing ts 25.

3. By ground 4, the appellant alleges that his Honour erred in placing no mitigatory weight on the appellant's offer to plead guilty.

4. His Honour was plainly correct not to allow any mitigation. As the appellant did not plead guilty, he was not entitled to any reduction of his sentence pursuant to s 9AA of the Sentencing Act 1995 (WA) in respect of EF. The offer was of no practical benefit to EF or the State. The appellant conducted his defence on the basis that he had not indecently dealt with EF. EF was required to testify at a pre‑recording, where she was cross‑examined with the aim of undermining her credibility. The offer could in no way be said to be reflective of remorse or a genuine acknowledgement of wrongdoing against EF. Further, the offer did not in any way reflect the seriousness of the appellant's overall offending against EF.

5. There is no merit in ground 4 and leave to appeal in relation to it should be refused.

Grounds 2 and 5 - totality

1. The sentencing judge, consistently with the principles enunciated by the majority in Pearce v The Queen,[181] imposed sentences for each offence and then considered questions of cumulation, concurrence and totality.[182]  His Honour observed that the sheer volume of the appellant's offending meant that most of the sentences would be ordered to be served concurrently 'in order to come up with a sentence which is a just and appropriate measure of all the criminality involved in the offending'.  However, his Honour said that some measure of accumulation was required in relation to the individual sentences to be imposed with respect to each complainant, and to reflect the fact that the appellant had offended against three victims.  Further, his Honour said that count 25 constituted a distinct type of offending with a different class of victim, which also justified accumulation.

   [181] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] (McHugh, Hayne & Callinan JJ).

   [182] Sentencing ts 31 - 33.

2. His Honour expressly stated that he was conscious of the need to ensure that the total effective sentence imposed upon the appellant was not crushing.  He referred to the appellant's age, both upon becoming eligible for parole and on completion of his sentence.  His Honour continued:[183]

   In the circumstances, this case, given the serious nature of your offending, necessity for combined punishment, and the demands of personal and general deterrents, the extent to which any humanitarian considerations based on your age could be accommodated in the sentencing disposition is substantially reduced.  To the extent that it may be said that you will be left without reasonable prospect of useful life after your release, this is a necessary consequence of imposing a sentence which bears a proper relation to your offending.

   In sentencing you, I've taken into account the very real possibility that you will die in prison. 

Grounds 2 and 5 - the submissions

[183] Sentencing ts 32 - 33.

1. In support of grounds 2 and 5, the appellant submits that the total effective sentence of 15 years' imprisonment infringed both limbs of the totality principle.

2. The appellant's written submissions in support of ground 2, insofar as they are relevant to the ground, assert that the total effective sentence that was imposed upon him was not proportionate to his overall criminality.  He submits that all of the sentences should be served concurrently.[184] 

   [184] Amended appellant's case, par 34; WAB 88.

3. In respect of the offences concerning ED, the appellant took issue with the sentencing judge's finding that the offences constituted a breach of trust.  In respect of count 25, the appellant appears to submit that the number of CEM images he possessed was less than the number of images he was found to have possessed by his Honour.  The appellant further submits that, in respect of count 24, which concerned EF, he should not have been sentenced on the basis that the photographs he had taken of EF at the park on 1 February 2018 constituted category 1 CEM.

4. In relation to ground 5, the appellant submits that the total effective sentence was crushing.  He describes the prospect of serving 15 years in prison as 'distressing and demoralising',[185] leaving him with a feeling of hopelessness and that he will have no useful life after release.[186]

Grounds 2 and 5 - the totality principle

[185] Amended appellant's case, par 65; WAB 92.

[186] Amended appellant's case, pars 66 - 67; WAB 92 - 93.

1. The very well‑established approach to the totality principle in WA is to regard it as comprising two limbs.[187]  Recently, in Wark v The State of Western Australia,[188] the court (Buss P, Vaughan JA and me) said this about the totality principle:[189]

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

   The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences.  See Roffey v The State of Western Australia.  Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.  See Giglia v The State of Western Australia and Gaskell v The State of Western Australia.

   If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle.  It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.  See Moore v The State of Western Australia and Paolucci [54].

   The second limb of the totality principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.

   Advanced age is a relevant consideration in determining whether a sentence will be crushing.  The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age.  See R v Hunter; Braham v The Queen; R v Whyte; Gulyas v The State of Western Australia; and R v Iles. 

   However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case.  As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate [35]. See also Hunter (103).  An offence may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.

   So, the second limb of the totality principle is not absolute.  There are cases in which an offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time that would permit them to enjoy their remaining life.

   As a matter of fact, it is unusual for a total effective sentence to be reduced because it infringes the second limb of the totality principle.  Even in circumstances where an offender is of advanced age, that fact alone does not necessarily require a reduction in sentence.  (footnotes omitted)

   [187] I note the discussion on the composition of the totality principle in JTR v The State of Western Australia [2023] WASCA 131.

   [188] Wark v The State of Western Australia [2023] WASCA 66.

   [189] Wark [633] - [640].

2. As stated in Wark, the second limb of the totality principle is not an absolute principle.  It may be that, having regard to the offences, humanitarian considerations, which provide the rationale for the second limb, cannot be accommodated and the appropriate total effective sentence formulated in accordance with the first limb cannot be ameliorated.[190]

Grounds 2 and 5 - general sentencing principles applicable to sexual offending against children

[190] See also JTR [24] (Buss P).

1. In OTR v The State of Western Australia [No 2],[191] this court stated that the well‑established general principles applicable to the sentencing of offenders convicted of sexual offending against children are as follows:[192]

   [191] OTR v The State of Western Australia [No 2] [2022] WASCA 123.

   [192] OTR [No 2] [55] - [57].

   The authorities establish the following propositions in relation to sentencing for sexual offending against children:

   1.There is no tariff for sexual offences against children.  That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.

   2.The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.

   3.Matters personal to an offender will ordinarily carry less weight.

   4.In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children.  The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender.  Such offending can exist conformably with an otherwise apparent good character.

   It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra-familial sexual abuse.

   Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims.  Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child.  This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion.  (footnotes omitted)

Grounds 2 and 5 - general principles applicable to sentencing for the offence of possession of CEM

1. The general principles applicable to offenders convicted of an offence of possession of CEM were described in SHI v The State of Western Australia, in this way:[193]

   [193] SHI v The State of Western Australia [2020] WASCA 197 [45] - [46].

   In The State of Western Australia v McCarthy Mazza JA (McLure P & Buss JA agreeing) stated:

   'Offences relating to [child exploitation material] are not victimless crimes.  Those who possess and distribute this material encourage its production which involves and depicts the abuse, exploitation, humiliation and corruption of children who are vulnerable and incapable of protecting themselves.  The harm caused to these children is incalculable.  In a very real sense, those who possess or distribute this material encourage further child abuse.

   The prevalence of offending of this type is an issue because [child exploitation material] is readily available via the internet and may be obtained, possessed and distributed in digital form across the world in multiple jurisdictions.  Offences in relation to it are often difficult to detect and investigate.

   The major sentencing consideration is general deterrence.  The court's duty is to protect children.  The purpose of imposing deterrent sentences is to eliminate or reduce demand for, and thus the production and supply of, [child exploitation material].  This requires courts to send an unequivocal message that the distribution and possession of [child exploitation material] will ordinarily, as a matter of fact, be met with immediate imprisonment.  Because of the weight to be given to general deterrence, mitigating factors personal to the offender, including good character, are accorded less weight.

   …

   An examination of the cases confirms that those who commit offences in respect of [child exploitation material] are, like the respondent, commonly of prior good character, are well regarded by those who know them and have done good work in the community.  It is not at all unusual to see an offender who has no prior criminal record and is assessed as having a low risk of reoffending.  Offenders are not infrequently people who have standing in the community and have achieved much in their life.  These factors can only be given limited weight because of the need for general deterrence.'

   Offences of possessing child pornography are serious offences.  The authorities in this State identify that, ordinarily as a matter of fact, a sentence of immediate imprisonment will be imposed for possession of child exploitation material - meaning that the imposition of a different type of sentence is, as a matter of fact, exceptional.  There are, however, instances where suspended sentences have been imposed or upheld on appeal.  (footnotes omitted; emphasis omitted)

Grounds 2 and 5 - disposition

1. As I have said, the appellant does not challenge any of the individual sentences that were imposed upon him.  The overall seriousness of the 25 offences committed by the appellant is self‑evident from the summary of them set out earlier in these reasons.  All of the offending was serious, but without, in any way, diminishing the seriousness of what the appellant did to ED and EF, the offending against his daughter, MF, was egregious by reason of its volume, degrading nature, persistence over two decades, effect upon his victim, and the abuse of trust.

1. The offending against all three of the complainants was predatory and was committed over an extended period of time, without any apparent regard for their welfare, in order to sexually gratify the appellant.  He groomed his victims, and the offending for which he was convicted was, in the case of MF and ED, representative of his behaviour.  The psychological damage he has brought to the lives of the victims, and those close to them, has been enormous.  Despite the appellant's arguments to the contrary, all of the offending, including against ED, constituted a breach of trust.  In the case of MF, as I have already mentioned, she was his daughter.  In the case of ED, the appellant was entrusted with her care as a family friend, in circumstances where ED was his paid helper.  EF was his granddaughter.

2. Overall, the appellant's offending against all his victims spanned more than 30 years.  Not only did the appellant offend against each victim when they were very young, but his offending against MF normalised his behaviour towards her to the point that it continued into her adult years.

3. With respect to each complainant, the appellant committed acts of sexual penetration, including acts that occurred without consent.  While it is true that the appellant did not engage in any acts of penile penetration, the acts of digital penetration, and in the case of MF, acts of cunnilingus and fellatio, constituted serious examples of their type.

4. There was very little mitigation available to the appellant.  The admissions he made were largely acknowledgements of facts that the appellant could not realistically have sought to controvert, such as his admissions with respect to the prior conviction.  His admissions with respect to the content of the CEM, while sparing the jury the experience of having to view the relevant material, was an acknowledgement of the inevitable.  The appellant did not have available to him the mitigation that might have been afforded to him had he pleaded guilty, been genuinely remorseful, or taken effective steps towards his rehabilitation.  The appellant continues to maintain his innocence.  He denies that he has any sexual attraction towards children.  The appellant has no insight into the criminality of what he has done or the effect of it upon his victims. 

5. Both personal and general deterrence are important sentencing considerations.  So, too, is the need to provide appropriate punishment, and the protection of vulnerable children.  In addition to the offending against the complainants, the appellant possessed a substantial quantity of CEM, some of which exhibited a high level of depravity.  As this court has observed, the possession of CEM in the form of images is not a victimless crime.  While the possession of CEM in the form of stories does not involve the participation of an actual child, it has the tendency to normalise and promote the sexual abuse of children and has the potential to encourage like‑minded people to behave in the way described in the stories.

6. In order to properly reflect the criminality of all of the appellant's offending, there had to be some degree of accumulation.  His Honour was right to accumulate the sentences imposed for offences against the three different victims and the offence of possession of CEM.

7. In his written submissions, the appellant refers to a number of cases said to be comparable.  Three of them are not appropriate comparators.  They appear to involve sentences imposed at first instance, as reported in the West Australian.  Where this court is required to review comparable cases, it does so by reference to appellate cases decided by it or other intermediate courts of appeal or the High Court.  The appellant cites one decision of this court, LYN v The State of Western Australia.[194]  The respondent, in its written submissions, cites VIM v The State of Western Australia;[195] JJR v The State of Western Australia[196] and MHE v The State of Western Australia.[197]

   [194] LYN v The State of Western Australia [2019] WASCA 45.

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

   [196] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209.

   [197] MHE v The State of Western Australia [2019] WASCA 133.

8. Leaving aside the small number of cases cited by the parties in this appeal, the utility of comparable cases is limited where it is alleged that a total effective sentence infringes the totality principle.  This point was made in Pennetta v The State of Western Australia,[198] where Hall J said:

   Comparisons with sentences imposed in other cases is necessary where it is claimed that the sentence for an offence is manifestly excessive.  In such a case the comparison is undertaken because one of the factors that is relevant is whether the sentences are consistent with those commonly imposed for offences of that type.  Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited.  This is because the total effective sentence is not one imposed for a single offence.  It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence.  The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult.  Nonetheless it is important to ensure that there is broad consistency in sentences.  See also Howorth v The State of Western Australia [2007] WASCA 78 [30]; Spry v The State of Western Australia [2013] WASCA 68 [39].

   [198] Pennetta v The State of Western Australia [2013] WASCA 234 [39].

9. In OTR [No 2], it was said:[199]

   It is particularly the case that there is limited utility in comparing total effective sentences in the context of sexual offending against children.  The total effective sentence in another case can only provide very limited guidance as to whether the total effective sentence imposed in the case under appeal infringes the first limb of the totality principle where: (1) there is no established tariff for sexual offences involving children; and (2) the range of sexual offending and sexual offenders are infinitely variable.  Moreover, often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case.  That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.  (footnotes omitted)

   [199] OTR [No 2] [62].

10. In particular cases, it might be thought that the outcomes are lenient, or relatively lenient.  Some sentences might be thought to be towards the top of the range of a proper exercise of the sentencing discretion.  While it is necessary to be cognisant of the sentences imposed in other cases, it must always be borne in mind that each case must be decided upon its own facts and circumstances.  The cases that have been cited to this court by the parties do not assist the appellant in persuading this court that the total effective sentence imposed upon him infringed the first limb of the totality principle, as he alleges in ground 2.

11. Having regard to all of the relevant facts and circumstances, while it cannot be denied that the total effective sentence of 15 years' imprisonment was a very substantial sentence, a sentence of that magnitude was, in my opinion, an appropriate exercise of the sentencing discretion.  There has been no infringement of the first limb of the totality principle.  While I would grant leave to appeal, ground 2 has not been made out.  I now turn to ground 5, which alleges an infringement of the second limb of the totality principle.

12. At the time of sentencing, the appellant was 64 years old, and had been in custody for almost three years.  It cannot be said that, at that point, he was of advanced age.  At the time he becomes eligible for parole, he will be 74 years old, and, if he serves the entire sentence that was imposed upon him, he will be 76 years old upon his release from prison.  The sentencing judge accepted that although the appellant is in good health for his age, there is a prospect that he will die before his release from prison.  I will accept this to be so.

13. The prospect of serving a long term of imprisonment, and of perhaps dying in prison or shortly after release from prison, is doubtless upsetting and daunting to the appellant.  However, these subjective factors do not determine whether the second limb of the totality principle should be applied.  Without wishing to be repetitious, the second limb of the totality principle is not an absolute principle.  It cannot be invoked where to do so would be to inadequately reflect the nature, quality and extent of the offender's overall criminal behaviour.  In my opinion, given the seriousness of the offending, the absence of any significant mitigation, and the need to provide for general and personal deterrence and protection of vulnerable children, humanitarian considerations should not and cannot be accommodated, and the total effective sentence of 15 years' imprisonment must stand.  While leave to appeal should be granted, ground 5 has not been made out.

The restraining orders

1. In relation to each of the complainants, the appellant was convicted of a violent personal offence, as defined in s 63A(1A)(a) of the Restraining Orders Act 1997 (WA). Consequently, by s 63A(1) read with s 63A(4), the learned sentencing judge was obliged to make a lifetime VRO against the appellant to protect each of the complainants, unless the complainant requested that an order not be made. No request was made by any of the complainants (or, in the case of EF, her parents) not to make an order. It follows that there was no basis for his Honour to decline to make a VRO. In any event, on the facts and circumstances of this case, lifetime VROs to protect each complainant were entirely justified.

Conclusion and orders

1. None of the grounds of appeal relied upon by the appellant in his appeal against sentence has been made out.  The orders that I would make are as follows:

   1.The appellant's application to adduce additional evidence in the appeal filed 7 April 2022 is allowed but only to the extent of the material set out in [308] of these reasons.  Leave is otherwise refused.

   2.Leave to appeal is granted in respect of grounds 1, 2 and 5.

   3.Leave to appeal is refused on grounds 3 and 4.

   4.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IB

Research Associate to the Honourable Justice Mazza

21 DECEMBER 2023