CLARKE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 67

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 67
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:80/2012	Heard:	3 DECEMBER 2012
Coram:	McLURE P PULLIN JA BUSS JA	Delivered:	12/03/13
No of pages:	31	Judgment Part:	1 of 1
Result:	CACR 80 of 2012 Application for leave to appeal against conviction dismissed Appeal dismissed CACR 81 of 2012 Application for leave to appeal against sentence dismissed Appeal dismissed
Category:	B
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Parties:	NATHAN JAMES CLARKE THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for leave to appeal against conviction Application for leave to appeal against sentence Threat to kill Deprivation of liberty Sexual penetration without consent Assault occasioning bodily harm Whether sentence manifestly excessive Whether sentence overall disproportionate to total criminality
Legislation:	Sentencing Act 1995 (WA)
Case References:	Director of Public Prosecutions v Stonehouse [1978] AC 55 Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452 Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439 Juma v The State of Western Australia [2011] WASCA 54 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Lindsay v The State of Western Australia [2010] WASCA 142 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 McDermott v R [1948] HCA 23; (1948) 76 CLR 501 R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 R v Cleak [2004] WASCA 72 R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 R v Slattery [2002] NSWCCA 367 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 R v Williams [1992] 8 WAR 265 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 The State of Western Australia v Turaga [2006] WASCA 199 Ugle v The State of Western Australia [2012] WASCA 104 Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CLARKE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 67 CORAM : McLURE P

PULLIN JA

BUSS JA

HEARD : 3 DECEMBER 2012 DELIVERED : 12 MARCH 2013 FILE NO/S : CACR 80 of 2012

CACR 81 of 2012

BETWEEN : NATHAN JAMES CLARKE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : SWEENEY DCJ

File No : IND 1214 of 2011

(Page 2)

Catchwords:

Criminal law - Application for leave to appeal against conviction - Application for leave to appeal against sentence - Threat to kill - Deprivation of liberty - Sexual penetration without consent - Assault occasioning bodily harm - Whether sentence manifestly excessive - Whether sentence overall disproportionate to total criminality

Legislation:

Sentencing Act 1995 (WA)

Result:

CACR 80 of 2012

Application for leave to appeal against conviction dismissed
Appeal dismissed

CACR 81 of 2012
Application for leave to appeal against sentence dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr T Saayman & Ms K Kumar

Respondent : No appearance

Solicitors:

Appellant : Meredith Saayman Lawyers

Respondent : No appearance

(Page 3)

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

Director of Public Prosecutions v Stonehouse [1978] AC 55
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452
Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Juma v The State of Western Australia [2011] WASCA 54
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lindsay v The State of Western Australia [2010] WASCA 142
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McDermott v The Queen [1948] HCA 23; (1948) 76 CLR 501
R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116
R v Cleak [2004] WASCA 72
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Slattery [2002] NSWCCA 367
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams [1992] 8 WAR 265
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Turaga [2006] WASCA 199
Ugle v The State of Western Australia [2012] WASCA 104
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

(Page 4)

1 McLURE P: I agree with Pullin JA.

2 PULLIN JA: The appellant has applied for leave to appeal against conviction and sentence. The appellant was charged on an indictment which read:

(1) [In] March 2011 at Mosman Park Nathan James Clarke made a threat to unlawfully kill [the victim]

(2) On the same date and at the same place Nathan James Clarke unlawfully detained [the victim]

(3) On the same date and at the same place Nathan James Clarke sexually penetrated [the victim] without her consent, by penetrating her vagina with his finger

And that Nathan James Clarke did an act which was likely to seriously and substantially degrade [the victim], namely rubbed semen on her face

(4) On the same date and at the same place Nathan James Clarke sexually penetrated [the victim] without her consent, by penetrating her vagina with his penis

(5) On the same date and at the same place Nathan James Clarke sexually penetrated [the victim] without her consent, by penetrating her vagina with his finger

(6) On the same date and at the same place Nathan James Clarke sexually penetrated [the victim] without her consent, by penetrating her vagina with his penis

(7) On the same date and at the same place Nathan James Clarke unlawfully assaulted [the victim] and thereby did her bodily harm

3 He was found not guilty of counts 3 and 5. He was convicted on the other counts, being one count of threat to kill, one count of deprivation of liberty, two counts of sexual penetration without consent and one count of assault occasioning bodily harm.

4 The offences arose out of a dysfunctional relationship between the appellant and the victim. They were engaged for a time, but after that the relationship deteriorated. The victim successfully applied for a violence restraining order against the appellant which she then removed after a few months. They reconciled for a short time. The relationship followed a pattern of argument followed by reconciliation up until 2011 when the offences occurred. The victim had a young son from a previous relationship.

(Page 5)

5 At the time of the offences, the appellant and the victim had different views about the status of their relationship. From the appellant's perspective, he and the victim were in a sexual relationship but did not want to tell their friends or family about it. The victim considered that they were not in a formal relationship, but that they were seeing each other and having sex occasionally.

6 The evidence of the victim was that on the morning that the offences occurred, the appellant went to the victim's unit. He looked through the bedroom window and saw her in bed with another man. The appellant yelled and banged on the door of her unit. The victim called the police. The appellant left before the police arrived. Later that day, there was some communication between the appellant and the victim. The appellant told her that he had the money to pay back a loan from the victim's parents, which he had undertaken to repay and which had been an issue between the appellant and the victim for some time. As a result, the victim drove to the appellant's house with her son sleeping in the back of the car. She sounded the horn to no effect. She went and knocked on the door and called out to the appellant. She heard the shower running and entered the house through the front door.

7 The victim testified that the appellant then came through the front door from outside the house and attacked her. He told her that she was going to 'die here tonight' while holding her against the wall with his arm against her chest and his other hand around her throat so that she could not breathe, swallow or speak. The victim tried to run towards the door, but the appellant attacked her again and pushed her to the ground, holding her head down with his knees. He again told her that she was going to die. These events resulted in the threat to kill conviction and the deprivation of liberty conviction. The deprivation of liberty offence continued throughout the ordeal.

8 The first act of penile penetration without consent occurred after the appellant pushed the victim into the bathroom and pushed her against the wall. He held her by the back of the neck with one hand and pushed her head towards the bathroom sink. He held her around the waist so that she could not move. He forcibly penetrated the victim. The victim cried and asked him to stop.

9 The second act of penile penetration without consent occurred after the victim had tried to get away. She wanted to check on her son, who was still in the car outside the house. The appellant held the victim's arm

(Page 6)

while they stood on the front porch to look at the car. He then pushed her face against the wall and again forcibly had sex with her.

10 The victim was eventually able to run to her car and leave the appellant's house. The victim sustained injuries throughout the ordeal which resulted in the assault occasioning bodily harm offence.

11 The victim complained about the sexual assault to a friend two days after the offences occurred. The police were notified.

12 Four days after the offences a pretext telephone call was conducted between the appellant and the victim. The telephone call was arranged by the police and was recorded using an earpiece. Before the call commenced, a police officer told the victim that he could not tell her what to say and could not be involved in the conversation, that she was in charge of making the call and could hang up at any time and that she was to focus on the matters contained in her statement and relevant to her complaint. The recording of the call was in evidence at the trial. During the phone call the appellant made statements from which it could be clearly inferred that he admitted the offences. He did not deny any of the allegations that the victim put to him. For example, the victim asked 'why did you rape me then?' and the appellant replied '[b]ecause you were being smart about what you were doing with another bloke'. The appellant was suspicious that the call was being recorded. He asked, '[a]re you taping me?' early in the call. The victim replied that she was not. Further into the conversation, he asked '[w]ho else is there with you?' and the victim replied that no one was. Further on, the appellant said 'I honestly think you're taping this' and the victim said that she was not. It is clear from these exchanges that the appellant suspected that he was being recorded or that someone else was present throughout the conversation. The victim's first denial that the call was being taped did not allay the appellant's concern that he was being taped. Despite his suspicion, he made the admissions referred to.

13 The appellant was interviewed by police. The interview was recorded on video. He said that between the incident where he saw the victim in bed with another man and the sexual encounter at his house, he had been invited to go to the East Fremantle jetty where he found the victim and three men. He said one of them was the man who he had seen in bed with the victim. He said he got 'stuck into the fellow that was in bed with her' and then went home. He said the victim then came to his house. He admitted that sexual intercourse took place. He said it was consensual. He denied the other allegations of criminal conduct. At trial

(Page 7)

the victim gave evidence. The appellant elected not to give evidence. The video record of interview of the appellant was tendered.

Appeal against conviction: CACR 80 of 2012

14 The appellant seeks leave to appeal against his conviction on twelve grounds which read:

1. The learned trial judge erred in law by failing to exclude the evidence of, and/or implied admissions made by the appellant in, a pretext telephone call between the complainant and the appellant … which amounted to a substantial miscarriage of justice.

2. The learned trial judge erred in law by exercising her discretion to admit propensity evidence and/or relationship evidence pursuant to section 31A Evidence Act 1906 (WA), which amounted to a substantial miscarriage of justice.

3. The learned trial judge erred in law by directing the jury to put out of their minds that no DNA or fingerprint evidence was led by the State, when such evidence was available to be led, thereby closing the jury's collective mind to the drawing of a permissive inference that such evidence was not supportive of the State's case, which amounted to a substantial miscarriage of justice.

4. The learned trial judge erred in law by failing to give adequate direction to the jury that if they concluded that her Honour had formed a view of the case, it was not her Honour's view but their views of the facts that counted, in accordance with Director of Public Prosecutions v Stonehouse[1978] AC 55, which amounted to a substantial miscarriage of justice.

5. The learned trial judge erred in law by failing to give adequate direction to the jury that any doubt they may form with respect to the complainant's evidence in respect of one (or more) counts ought be considered by them when assessing the credibility of the complainant with respect to the other counts, in accordance with R v Markuleski(2001) 52 NSWLR 82, which amounted to a substantial miscarriage of justice.

6. The learned trial judge erred in law by misstating the correct test and burden of proof to be applied when assessing the truthfulness and accuracy of the complainant's evidence, contrary to Liberato v The Queen(1985) 159 CLR 507, which amounted to a substantial miscarriage of justice.

7. The learned trial judge erred in law by repeatedly addressing the jury in respect of the complainant's reasons for making certain prior inconsistent statements, and by failing to address the jury in respect of certain prior inconsistent statements, which repetition and failure

(Page 8)

overrode the overarching objective of the warning identified in

Driscoll v R

(1977) 137 CLR 517, which amounted to a substantial miscarriage of justice.

8. The learned trial judge erred in law by failing to give a warning to the jury in regards to CCTV and SMS evidence lost or not recovered by the State, which evidence was unavailable to be tested by the appellant, which direction was in the circumstances of the case appropriate to give in accordance with

Longman v R

(1989) 168 CLR 79, which amounted to a substantial miscarriage of justice.

9. The learned trial judge erred in law by misstating to the jury the equivocalness of an implied admission and the extent and equivocalness of a denial made by the appellant in a pretext telephone call between the complainant and the appellant …, which amounted to a substantial miscarriage of justice.

10. The learned trial judge erred in law by failing to provide a fair and balanced summing-up to the jury and to properly summarise the defence case, which amounted to a substantial miscarriage of justice.

11. The learned prosecutor erred in law by failing to make available for cross-examination witnesses to the incident [in] August 2009, which amounted to a substantial miscarriage of justice.

12. The verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.

Ground 1

15 Before the trial the appellant applied for an order excluding the evidence of the pretext telephone call on the grounds that it was inadmissible on the basis that they were involuntary admissions. Alternatively, the appellant asked the trial judge to exercise her discretion and exclude the evidence on the basis of unfairness or on public policy grounds.

16 The application was heard on 10 January 2012, which was before the trial. No evidence was led in relation to the objection. The application was decided by examining the transcript of the phone call.

17 In McDermott v The Queen [1948] HCA 23; (1948) 76 CLR 501,Dixon J explained that a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial

(Page 9)

for the crime to which it relates unless it is shown to have been made voluntarily. His Honour said:

This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is a result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. It is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made...The expression 'person of authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority...That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject (511).

18 In the absence of evidence to the contrary it is presumed that an admission against interest was made voluntarily: Hough v Ah Sam [1912] HCA 78; (1912) 15 CLR 452, 457; R v Williams [1992] 8 WAR 265, 271.

19 The appellant submitted that there was importunity and sustained or undue pressure by the victim as an agent of the police. That submission cannot be sustained. The victim was not an agent of the police, nor did the appellant believe that she was. The police merely provided the means of recording the conversation. The appellant conceded during submissions to the trial judge that the making of the pretext call itself was not such as to negate the voluntariness of the admissions. There is no reasonable prospect of the appellant succeeding in his contention that the admissions were not made voluntarily. There was no evidence which raised the possibility that the statements made by the appellant were involuntary.

20 The appellant's alternative submission was that the court, in the exercise of its discretion, should have excluded the evidence of the pretext call. In the absence of any conduct which rendered the police conduct improper or illegal, there was no basis, on public policy grounds, for excluding the evidence. Nor was there any unfairness. The appellant was not able to establish that there was the risk of a miscarriage of justice on the basis that the prejudicial effect of the evidence of the pretext call outweighed the probative value of the admissions made by the appellant during the call. As Brennan CJ observed in R v Swaffield [1998] HCA 1; (1998) 192 CLR 159:

(Page 10)

The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods' (185 - 186). (footnotes omitted)

21 There was no unfairness to the appellant in this case. As far as he was concerned, he participated freely in a conversation with the victim.

22 Ground 1 has no reasonable prospect of succeeding.

Ground 2

23 In 2009 the appellant pleaded guilty to five counts of breach of a violence restraining order, one count of breach of a bail undertaking, two counts of unlawful damage to property and one count of aggravated unlawful assault occasioning bodily harm to the victim, which conduct constituted a breach of an order under the Restraining Orders Act 1997 (WA). The State applied to adduce evidence of these convictions and evidence from the victim about her relationship with the appellant pursuant to s 31A of the Evidence Act 1906 (WA) prior to the trial. That application was heard on 21 December 2011. Her Honour held that the evidence was admissible.

24 The trial judge summarised the facts of the 2009 offences as follows:

[O]n 31 July 2009, the accused was served with a violence restraining order prohibiting him from contacting [the victim] or approaching within 20 metres of her. Twice on 2 August and twice on 3 August, the accused contacted her by SMS, those offences making up four of the breaches of the violence restraining order. The accused was charged and released on bail. The bail conditions contained a protective bail condition.

[In] August [2009], [the victim] was staying at a truck yard which belonged to an ex-boyfriend of hers ... The accused attended those premises in breach now not only of the violence restraining order but also the protective bail condition. Approached a truck belonging to the ex-boyfriend and poured an amount of green fluid over the seat and footwell [sic]. A man, I understand, not the ex-boyfriend, was sleeping in an adjacent truck and started up his engine which disturbed the accused, who then grabbed a metal pole, approached the driver's side door of the truck and struck the driver's side door, smashing the window.

The accused then saw [the victim] and began swinging the metal pole at her, collecting her across the top of her thighs causing heavy swelling and bruising. The accused attempted to leave the yard but was restrained and police were called and he made admissions to all of those offences, and … ultimately pleaded guilty to them (ts 33 - 34).

(Page 11)

25 The trial judge ruled that there was a sufficient basis for a jury to draw the inference that the appellant tended to react strongly and offend against the victim when he believed that she was showing interest in another man. Even if the jury would not draw the inference that the appellant was motivated by jealousy, the prior acts of violence still demonstrated a willingness to violently assault the victim when he was angry with her. The trial judge considered that there was no risk that the jury would devote undue time or attention to the propensity evidence because the appellant admitted the offences. The evidence of the offences was reliable. The defence conceded that the evidence was relevant. The evidence had significant probative value and the trial judge accepted that it made it more likely that the appellant committed the offences charged in the indictment.

26 Finally, her Honour concluded that the probative value of the evidence compared to the risk of an unfair trial was such that fair-minded people would think the public interest in adducing all relevant evidence of guilt should outweigh the risk of an unfair trial. This conclusion is challenged by the appellant in the appeal.

27 Counsel for the appellant contended that the trial judge did not adequately consider the prejudicial effect of this evidence in circumstances where witnesses of the prior offences were not made available by the state. At the hearing of the application for leave to appeal, counsel for the appellant conceded that he had not raised the need for those witnesses to be called with the trial judge and did not ask for an adjournment in order to summon them. He says he did raise the need for those witnesses with the prosecutor who declined to call them. It is relevant to add that the appellant had pleaded guilty to the previous offences and in doing so he accepted the material facts alleged by the State.

28 Counsel for the appellant submitted that the trial judge erred in concluding that any risk of an unfair trial could be ameliorated by directions given by her Honour in her summing up to the jury. Her Honour directed the jury about the use they may make of the evidence as follows:

The fact that a person has committed an offence in the past does not necessarily mean he's committed any further offence. To find the accused guilty of any charge on this indictment you must be satisfied that he is guilty of that offence …

(Page 12)

[Y]ou are entitled to consider this evidence and any further inferences you may draw from it to consider whether the State has proved to you that the accused had a propensity, a tendency, to act violently towards [the victim] and an attitude of possessiveness towards her.

And if you find he did you … are entitled to consider it therefore objectively more likely that he followed that tendency [in] March 2011. It's a matter entirely for you as to whether you find he did have a tendency to behave in the way he suggests.

This evidence of a tendency the accused may have had and an attitude that he may have had towards [the victim] may lend support to her evidence that he was violent towards her [in] March and violently forced himself upon her. But it doesn't automatically follow … that if the accused had certain tendencies or attitudes towards her, that he acted upon them [in] March.

And the fact that a person may have behaved violently in the past may not indicate that they would be prepared to force themselves sexually upon a woman. It's a matter for you whether you consider the evidence does lend support to [the victim's] account in the way I have described …

[T]o find any individual charge proved, you need to be satisfied that [the victim's] evidence was both truthful and reliable and that that incident occurred as she has described (ts 583 - 584).

29 If there was any risk that the jury would embark on an impermissible reasoning process in light of the propensity evidence, then the trial judge sufficiently guarded against that risk by giving clear directions about the use the jury might or might not make of that evidence.

30 Ground 2 has no reasonable prospect of succeeding.

Ground 3

31 At trial, the State did not lead DNA or fingerprint evidence relating to the offences. Counsel for the appellant pointed this out in his closing address to the jury. The trial judge, in her summing up, said to the jury:

There is no point guessing or speculating about matters that are not in evidence before you. For example, it's been pointed out to you [that] you have no DNA or fingerprint evidence … [T]here is absolutely no point wondering about what such evidence might have shown (ts 528 - 529).

32 It is difficult to understand the point of this ground of appeal and the written submissions do not help. The appellant's written submissions conclude by stating:
(Page 13)

The effect of her Honour's summing up in respect of the lack of such evidence was to direct the jury to put the matter entirely out of their minds, which direction, objectively, would have closed the jury's mind to the drawing of a reasonably open and permissible inference that there was no DNA or fingerprint evidence supportive of the State's case.

We submit that the closing of the jury's mind to the drawing of such inference would objectively have influenced the jury's assessment of the truth, reliability and accuracy of the complaint's evidence, the subsequent verdicts and, consequently, represents a substantial miscarriage of justice.

33 DNA evidence would have been of no relevance to any live issue. There was no issue that the appellant and the victim had sex at the appellant's house. DNA evidence to show that the victim and the appellant had sex or that the victim had been at the house would have been pointless.

34 Before this court, counsel for the appellant contended that fingerprint evidence would have been of some assistance to the appellant. The victim had given evidence that she had touched the bathroom windowsill and the basin at some stage during the offence. By ground 3 the appellant contends that, had the trial judge not directed the jury to disregard evidence that was not before them, the jury could have drawn the inference that the State did not lead fingerprint evidence because no fingerprints were found on the windowsill and therefore the fingerprint evidence would have been inconsistent with the victim's version of events. Be this as it may, the fact is that fingerprint evidence was not available.

35 Any inference that the jury may have drawn from the lack of DNA and fingerprint evidence would have been speculation. The trial judge was correct to instruct the jury that they were to decide the case on the evidence that was before them and not to speculate about the evidence that wasn't before them. This ground has no reasonable prospect of succeeding.

Ground 4

36 This ground alleges that a substantial miscarriage of justice occurred because the trial judge gave the impression that she favoured the State's case in her summing up. Counsel for the appellant does not point to any particular comments made by the trial judge, but instead refers to the 'language, tone, nature and extent' of the summing up and the 'extensive recital of the State's case'.

(Page 14)

37 The appellant's contention that the trial judge spent much more time summarising the State's case than she did summarising the defence case, which was also raised with her Honour after her summing up, is without merit. The State's case went for several days and the defence case went for less than three and a half hours, including breaks. It would be very unusual if the trial judge spent an equal amount of time summarising each.

38 There is nothing in the trial judge's summing up which was unfair to the appellant. At the start of her summing up the trial judge said that, 'any comment that I make upon the facts is not binding on you. I might, from time to time, make comments on the facts. If I do, I tend to say that's what I'm doing so you understand that. And any comments that I make on the facts don't bind you' (ts 528). At ts 529 her Honour said that '[y]ou are the judges of the facts'. This was similar to the statement which Lord Salmon in Director of Public Prosecutions v Stonehouse [1978] AC 55, 80 suggested should be made. The appellant contends that a direction in the terms suggested by Lord Salmon should have been made. It was.

39 This ground has no reasonable prospect of succeeding.

Ground 5

40 There were seven charges on the indictment. The appellant was acquitted of the third and fifth charge which each alleged an act of sexual penetration without consent and which each alleged that the appellant penetrated the victim digitally. The appellant submits that the trial judge should have told the jury in her summing up that any doubt in relation to the victim's evidence on one count of the indictment may be relevant to the other counts. The appellant's submission is that, since the appellant was acquitted of two charges, the jury must have formed a negative view of the victim's credibility in respect of those charges and that there is nothing that distinguishes those charges from the charges that resulted in convictions, in particular the two counts of sexual penetration without consent, which were acts of penile penetration.

41 The trial judge made the following comment about this matter:

[D]ecisions that you make about the credibility of [the victim] and the accused may well have equal bearing on the counts across the board. And you may well come to the conclusion that the issue of whether or not you accept [the victim's] account falls to be decided the same way for each charge. However, it still remains your judgment to make. And as a matter of law, your verdicts do not have to be the same … You can accept everything a witness says or you can reject everything they've said. But

(Page 15)

you can also accept some of what they've said and not other parts of their evidence (ts 530 - 531).

42 This was the correct direction to give. The jury's attention was drawn to what the appellant referred to in written submissions as the 'crucial matter', which was that the jury's assessment of credibility on one charge may bear on assessments of credibility in relation to other charges.

43 This ground has no reasonable prospect of succeeding.

Ground 6

44 This ground alleges that a substantial miscarriage of justice occurred because the trial judge did not give a direction to the jury in accordance with Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. That is a direction that, if the jury do not believe the defence evidence but prefer to accept the evidence of the State's witnesses, they should not convict unless satisfied beyond a reasonable doubt that the prosecution has proved the charges.

45 The appellant contends that no such direction was given in this case. That contention is incorrect. The trial judge said that:

[I]f you do reject his account to the police, it doesn’t automatically follow that you would find him guilty because before you could do so you would also need to be satisfied that [the victim's] evidence was both honest and reliable on the essential facts that the State needs to prove; in other words, the State must prove its case to you (ts 596).

46 The appellant in his written submissions said that, in giving this direction, her Honour did not adequately clarify that the test was to be proof beyond reasonable doubt and that her Honour ought to have given a direction in the form referred to in Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 [31], in which Buss JA referred to a form of direction suggested by Kirby J in R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116. It is not necessary that the precise form of words used in another case has to be used in every case. Her Honour's direction made it clear beyond doubt that, even if the testimony of the accused was not accepted by the jury, the prosecution still needed to prove its case. The trial judge had elsewhere made it clear that proof of the State case had to be proof beyond reasonable doubt (ts 530, 542).

47 This ground has no reasonable prospect of succeeding.

(Page 16)

Ground 7

48 This ground relates to a complaint about how the trial judge dealt with the victim's prior inconsistent statements. The complaint has two aspects. The first is that the trial judge did not identify each prior inconsistent statement that the victim was alleged to have made. The second aspect of the complaint is that the trial judge repeated the victim's explanations for the prior statements. The appellant submits that a substantial miscarriage of justice occurred because the trial judge did not give the jury the appropriate direction about prior inconsistent statements.

49 In her summing up the trial judge drew the jury's attention to examples of prior inconsistent statements made by the victim. Her Honour said:

If you find during the course of your deliberations…that there are inconsistencies in a witness's account between what they've said in court and what they've said on a prior occasion…that is something you should consider in assessing the witness's credibility and reliability.

If a person's account alters over time then that's obviously relevant to assessing whether that account is reliable…

Obvious examples in this case are the evidence that [the victim] told several people…that she stopped somewhere and the accused got into her car and forced her to drive to the house where he was living.

That was the consistent theme emerging through all of those witnesses' evidence. I'm not going to take you through all of that evidence…

[T]hat allegation…forms no part of [the victim's] account of what actually happened that night…

[N]either [the victim] nor the State are alleging that the accused did, in fact, get into her car and threaten her and force her to drive him to the house (ts 533 - 534).

50 Her Honour then recounted the explanations given by the victim as to why those witnesses might have gained the impression from her that the victim had made a stop somewhere, at which time the appellant got into her car. There is nothing improper about the trial judge reading parts of the victim's evidence that explain inconsistencies. Her Honour continued:

[I]f [the victim] did say to her friends that she stopped somewhere…and he got into her car and he forced her to drive to the house…that would amount to an inconsistency on her part, because her evidence in court, on

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oath, is clearly that that never occurred. She certainly does not appear to be saying that her friends have invented that…

It will be for you to judge, firstly, whether she did say those things to her friends and, if so, the explanation she gave for having said that to her friends when she now clearly says no such thing occurred…

[I]t will be for you to assess what impact that inconsistency has upon her credibility as a witness and whether you think it does cast doubt upon the truthfulness and accuracy of her evidence given on oath during this trial, or whether you regard her evidence as [to] what happened that night at the house as being truthful and accurate despite that inconsistent account about him getting into her car…

[W]hat a person says outside a courtroom is not their evidence unless the witness agrees in court that what they said earlier was correct (ts 536 - 538).

51 The trial judge also mentioned that there was a potential inconsistency in that the victim told a doctor who examined her that the appellant had attempted to put his finger into her anus but did not say anything about this in her statement or in her evidence-in-chief. When it was put to her in cross-examination she said that it did happen. It was not necessary for her Honour to address each and every prior inconsistent statement that was alleged. Her Honour had told the jury at the start of her summing up that they were to take all of the evidence into account, even evidence that her Honour did not mention in summing up.

52 It is not always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable. Whether such a direction is necessary depends on the circumstances of the case: Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 535 - 537. The jury was informed that the prior inconsistent statements alleged to have been made by the victim were to be used to assess the credibility of the victim and that they were not evidence of the truth of the matters contained within them. The trial judge explained to the jury that if they accepted the evidence about the making of the inconsistent statements, then that could cast doubt on the evidence given by the victim at trial. There was no need to take the matter any further. This was not a case where the testimony of the victim was more damaging to the appellant than the inconsistent statements she was alleged to have made earlier.

53 This ground has no reasonable prospect of succeeding.

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Ground 8

54 Ground 8 alleges that the trial judge erred by failing to give a warning about the unavailability of some CCTV and SMS evidence at the trial.

55 The appellant in written submissions explained what this evidence related to. He said:

Despite opportunity, police did not recover available CCTV from Siena's restaurant Leederville ... nor a number of text messages sent between the complainant and the appellant in the immediate lead up to and following the incident the subject of the indictment …

The loss of CCTV and SMS's was not the fault or the cause of the appellant.

The CCTV went specifically to the question of whether two of the State's witnesses … were at Siena's having dinner in the evening shortly prior to the incident, rather than at East Fremantle jetty ... along with the complainant, engaging in a physical altercation with the appellant, which fight was denied by the State's witnesses and the complainant, but alleged by the appellant.

56 The appellant then added:

It is submitted that the SMS's would likely have gone towards the reasons behind the complainant attended [sic] the appellant's home at the material time of the incident, whether her son … was with her at the time, and whether the complainant attended at the jetty and the occurrence or otherwise of the fight.

57 The appellant submitted that the State utilised the appellant's assertion of the occurrence of the fight in closing argument in order to attack the reliability, truth and accuracy of the appellant's explanations in his record of interview and that the CCTV and SMS messages went 'specifically to the comparative credibility of the complainant, [the two men] and the appellant'. The appellant submitted that this was an appropriate case for her Honour to warn the jury that it was dangerous to convict the accused relying on the prosecution evidence unless the jury were satisfied of the truth and accuracy of that evidence because the defence had not had the opportunity to examine the evidence that might have been on the CCTV images and in the SMS messages. The appellant relied on R v Slattery [2002] NSWCCA 3677 [93] for this proposition.

58 Slattery does not assist the appellant. In Slattery,police had examined and tested a weapon which was later destroyed. This denied the

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appellant's expert witness the opportunity to examine and test the weapon. The evidence related directly to the elements of the charge which was that of maliciously discharging a weapon with intent to do grievous bodily harm to another person.

59 CCTV footage of Siena's restaurant had nothing to do with the events which took place at the appellant's house when the various offences were committed. If this was collateral evidence going only to issues of credibility as the appellant contends, then the appellant would not have been able to call the evidence to contradict evidence that the victim or the other two men gave about whether or not they were at the East Fremantle jetty.

60 However, even if it would have been relevant as part of the res gestae, the fact is that the CCTV footage and SMS messages had not been recovered. This meant that neither the prosecution nor defence had an opportunity to examine the material. The defence did not suffer a forensic disadvantage. This ground has no prospect of succeeding.

Ground 9

61 This ground alleges that the trial judge misdirected the jury concerning the admissions which the State alleged had been made by the appellant during the pretext telephone call.

62 In the written submissions and at the appeal hearing, counsel for the appellant submitted that there was some discrepancy between the transcript of the pretext telephone call and the audio recording of the call. The submission was that, during the telephone call, the victim cut off the appellant while he was responding to a question that the victim had asked and that as a result, during at least one stage of the telephone call, the transcript reads as though the appellant is answering one question, when in fact he is answering an entirely different question. At the appeal hearing, the appellant submitted that the audio recording of the pretext telephone call accurately reflects which questions the appellant answers when he is speaking.

63 Only the audio recording, which the appellant says is accurate, was an exhibit at trial. The jury did not have access to the transcript in the jury room although they were permitted to have it when the audio recording was played. It was taken back after the recording was played. If there were some discrepancy as alleged then the jury would have detected it. The trial judge suggested to the jury that they re-listen to the recording of

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the pretext telephone call (ts 569). It is of no consequence that the transcript may not have been accurate.

64 The passages of the summing up in relation to the pretext call which the appellant complains about are these:

The most obvious example [of an implied admission] that I can think of is where [the victim] said to the accused, 'go on, why did you rape me then?' To which the accused responded, 'because you were being smart about what you were doing with another bloke' …

The State relies upon both the words the accused said, married with a failure to deny any of the allegations [the victim] put to him during the phone call …

The State's case is that the content of the pretext telephone call makes it very clear, firstly, that every allegation [the victim] put to [the accused] was the truth, revealed in the fact that he did not deny [any] of those allegations, apart from attempting to kill her…

The State's case is that when you listen to the phone call, he gives the clear message, repeatedly, that the entire incident was her fault and that she could not have expected him to act in any other way when she had been with another man and when she [had] then been smart about that on the phone with him (ts 569 - 589).

65 The appellant submits that these paragraphs wrongly give the impression that the appellant's responses to the victim's questions and statements made during the pretext telephone call were unequivocal. This submission is entirely without merit. The trial judge, in the above passages, summarised the State's case. That is clear in the second, third and fourth paragraphs in the passage above. Immediately before the first paragraph of that passage, the trial judge said:

The evidence of the … telephone call is relied upon by the State as containing implied admissions … The State relies upon numerous of the accused's responses during that phone call. I'm not going to go through all of those comments because the State relies upon pretty much the entire interview (ts 569).

66 A further written submission was made in paras 88, 89 and 90, under the heading 'ground 9' which appears to have nothing to do with ground 9. That submission was that in summing up the State's case, the trial judge failed to refer to something the appellant said in his police interview. This submission has no merit. The comment that the appellant made in the police interview, which the appellant submits the trial judge should have referred to, was not referred to by the State, so the trial judge had no
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reason to refer to that comment in the course of summing up the State's case.

67 This ground has no prospect of succeeding.

Ground 10

68 In this ground, the appellant alleges that the trial judge did not give a fair and balanced summing up and failed to properly summarise the defence case. The submissions that correspond to this ground repeat some of the submissions made in relation to ground 4. Insofar as the appellant alleges that the summing up was unbalanced, in the sense that her Honour's summary of the State's case was longer than her Honour's summary of the appellant's case, that allegation must fail for the reasons set out in relation to ground 4.

69 Putting aside the allegations that the appellant repeats from ground 4, four allegations of error remain.

70 The first was that the trial judge erred by repeatedly referring to the complainant's desire to return to her son, who the State alleged was asleep in the car outside the house while the offences took place. This was said to have a 'particularly emotive impact upon [the] jury'. This was not an error. This was a part of the victim's account of the events. She gave evidence that during the course of the offence, she was thinking about her son and worrying about whether or not he was alright. She gave evidence that she repeatedly told the appellant that she wanted to make sure that her son was alright. The trial judge made reference to these allegations in the course of referring to the victim's account of what happened.

71 The second allegation was that the trial judge erred by couching the appellant's credibility in terms of lies and the victim's credibility in terms of truth and accuracy. In support of the submission that the trial judge framed the appellant's evidence in terms of lies, the appellant refers to ts 541. There, the trial judge says:

You've heard a number of comments made by the State prosecutor … suggesting that the accused lied about certain things …

And you'll make up your own mind about whether he was telling lies, and telling lies means deliberately telling lies, and that's obviously going to depend upon decisions you make about the credibility of witnesses in the case.

And it's for you to decide what significance any suggested lies, any lies that you might find he has told, have in relation to the issues in the case.

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72 There is nothing improper about the trial judge's reference to 'lies' when read in context. In support of the submission that the trial judge framed the victim's evidence in terms of truth and accuracy, the appellant refers to several pages of the transcript. Some of those references are to parts of the transcript where the trial judge discussed the victim's prior inconsistent statements, the impact that any inconsistencies might have on the victim's credibility as a witness, and the assessment the jury should make about whether any inconsistencies cast doubt upon the truthfulness and accuracy of the victim's testimony (ts 537, 539). Nothing about these comments is improper, or even adverse to the appellant. Some of the references are to pages of the transcript where the trial judge set out the elements of the offences and explained that, if the jury was satisfied that the victim's account was truthful and accurate, then certain elements of the offences would be proved. For example, in relation to an element of the deprivation of liberty offence, that the State must prove that the appellant detained the victim, the trial judge said:

So the real issue in count 2 is did [the accused] behave forcefully and violently towards [the victim] as she has described? ...

I would think that if you're satisfied that the [victim's] account was truthful and accurate, then you'd be satisfied that the State has proved that he detained her by confining her there [in the house] and depriving her of her liberty … So that really hinges entirely on whether or not you accept her account (ts 548 - 549).

73 And in relation to an element of the sexual penetration without consent offences, that the victim was sexually penetrated, the trial judge said:

[W]hat [the victim] has described would clearly amount to an act of sexual penetration as alleged in each of these charges. So the real question is whether you accept her evidence as being both truthful and accurate (ts 550).

74 There is nothing improper about these comments. Another reference was made to a page in the transcript where the trial judge discussed evidence that the victim had told her friend about the incident (ts 568). The trial judge explained to the jury that the evidence given by the friend was not separate, additional evidence that the offence occurred because it effectively came from the victim. Therefore in considering the friend's testimony, the jury would still be judging whether the victim's account was truthful and reliable. There was nothing improper about this comment.

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75 The third allegation was that the trial judge elevated the victim's credibility by repeating her evidence, including the victim's explanations in relation to the prior inconsistent statements that the defence alleged she made. This complaint about the trial judge drawing the jury's attention to the explanations that the victim gave regarding the alleged prior inconsistent statements was dealt with in ground 7 and it is not necessary to repeat what has been said there.

76 As far as the complaint about the trial judge repeating the victim's evidence is concerned, the victim was the key witness at the trial. Since the appellant did not give evidence, the victim was the only witness who was present when the incident took place. There is nothing unfair or unbalanced about the trial judge referring to the victim's evidence at length. Not only did the trial judge draw the jury's attention to the victim's evidence, but her Honour also emphasised to the jury that they needed to make an assessment about whether that evidence was to be believed.

77 The fourth allegation was that her Honour repeatedly used words like 'jealous', 'possessive' and 'violent' in reference to the appellant. Her Honour refers to these words in the course of explaining what the State's case was at trial. The State's case was that the appellant had previously behaved towards the victim in a possessive, jealous and violent manner (ts 582, 583, 592) and that he had therefore demonstrated a propensity to do so (ts 584). There was nothing improper about the trial judge adopting language used by the State in the course of explaining what the State's case was.

78 None of the allegations in ground 10 have any merit, and therefore this ground has no reasonable prospect of succeeding.

Ground 11

79 This ground alleges that 'the prosecutor erred in law' by not making available witnesses to the offences of August 2009, which were relied on as propensity evidence. The facts of those offences are set out in relation to ground 2 above. The witnesses in question were the two men who had been involved in the altercation giving rise to those offences, and the appellant submitted that they were required to give evidence to establish that they had reacted violently to the appellant's attack on them and on the victim. The appellant submitted that it was necessary to establish that violence went back and forth between the parties, and that the appellant was not the only person who had been aggressive or violent on that occasion.

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80 This ground has no merit. The evidence of those witnesses would not have helped the appellant. The point of the evidence of the August 2009 offences was the appellant's conduct towards the victim, not what happened between the two men and the appellant.

81 In any event, at trial counsel for the appellant did not raise the need for these witnesses to be called with the trial judge, nor did he seek an adjournment in order to summon the witnesses. In this appeal he submits that he raised the need for the witnesses to be called with the prosecutor, who declined to call them. The appellant does not offer this court any reasonable explanation as to why he did not raise the need for these witnesses with the trial judge or ask for an adjournment.

82 Ground 11 has no reasonable prospect of succeeding.

Ground 12

83 This ground alleges that the guilty verdicts were unreasonable or cannot be supported. The appellant submits that the jury must have entertained a reasonable doubt as to the guilt of the appellant because, effectively, the victim was not a credible witness and the jury could not have believed her evidence, and because the appellant's implied admissions were equivocal and unreliable.

84 It was open to the jury to accept the victim's evidence at trial as truthful and accurate, or to accept parts of it as truthful and accurate. It was open to the jury to accept the State's contention that the appellant had made implied admissions. This ground has no reasonable prospect of succeeding.

85 The application for leave to appeal against conviction should be dismissed.

Appeal against sentence: CACR 81 of 2012

86 The appellant was sentenced to imprisonment as follows:

1. Breach of suspended term of imprisonment: 12 months originally imposed to be served;

2. Count 1 (threat to kill): 12 months to be served cumulatively;

3. Count 2 (deprivation of liberty): 12 months to be served concurrently;

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4. Count 4 (sexual penetration without consent): 4 years to be served cumulatively;

5. Count 6 (sexual penetration without consent): 2 years to be served cumulatively;

6. Count 7 (assault occasioning bodily harm): 2 years to be served concurrently.

87 The total effective sentence was 8 years' imprisonment. This total includes the suspended term of 12 months. The appellant had spent 328 days on remand at the time of sentencing. This was taken into account in relation to the sentence for count 6 (ts 680). The sentencing judge made the appellant eligible for parole.

88 The appellant appeals against his sentence on two grounds which read:

1. The individual sentences imposed were manifestly excessive having regard to the circumstances of the offending, the personal circumstances of the appellant and sentencing standards for offending of this type.

2. The appellant's total sentence overall was disproportionate to the total criminality.

89 The appellant was 30 years old when sentenced on 16 March 2012. He worked as a concreter and he was in good physical health. He had previous convictions. He had been convicted of general public nuisance offences, offences of dishonesty, offences against police and an assault against a previous girlfriend in New South Wales. In Western Australia, he had been convicted of several offences relating to the victim. He had been convicted of a number of breaches of the violence restraining order in relation to the victim, two counts of criminal damage and the other offences that occurred in August 2009. He had also breached a suspended term of imprisonment in 2010 without orders being made.

90 The appellant seems to have been exposed to some domestic violence as a child. His father had accused his mother of infidelity. The appellant had experienced depression throughout his relationship with the victim, and at one time he was admitted to hospital after experiencing suicidal thoughts. He presented with no major psychological issues at the time of sentencing. He was assessed as presenting a medium to high risk of sexual re-offending. That risk may be specific to the victim and not to the wider community.

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91 He no longer wishes to reconcile with the victim. He acknowledges that he has a problem with alcohol, being that it causes him to be aggressive. He accepts that he treated the victim badly during the course of their relationship. In this sense he has gained some insight into his behaviour. This insight does not extend to the offending in this case.

Ground 1

92 Although ground 1 reads 'the individual sentences imposed were manifestly excessive' the written submissions are only directed to the sentence on count 4. In considering whether the sentence on count 4 is excessive, it is necessary to take into account the maximum penalty which applied: Sentencing Act 1995 (WA), s 6(2)(a). The maximum penalty for sexual penetration without consent is 14 years' imprisonment. Sentences for offences of sexual penetration without consent vary significantly. The appellant refers to Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361. In that case, Wheeler JA observed that the starting point in 'ordinary' cases of sexual penetration without consent is a sentence of 4 to 6 years' imprisonment: Warburton [11]. This is before any mitigating factors or aggravating factors are taken into account. This range (equivalent to 6 to 9 years under the pre-transitional regime) was also referred to in R v Cleak [2004] WASCA 72 [13].

93 The appellant in Warburton had been sentenced to 8 years' imprisonment for one count of aggravated sexual penetration without consent, which sentence was reduced to 6 1/2 years on appeal. The aggravating factor in that case was alleged to be that the appellant had ejaculated on the victim's breasts. Wheeler JA did not consider that that factor seriously aggravated the seriousness of the appellant's culpability and as a result, her Honour did not consider that the offence was of such seriousness to justify a substantial departure from what might be regarded as 'ordinary' cases. The offence was premeditated. The victim was mentally disabled and the appellant took advantage of that. However Wheeler JA did not consider that these factors took the offence into a more serious category because most victims are vulnerable, and most offenders are predatory. The appellant did not plead guilty and he was not remorseful.

94 The appellant in this case received a sentence of 4 years' imprisonment for count 4. This is at the lower end of the 'starting point' of 4 to 6 years. There was 'not much to be said in mitigation', according to the trial judge (ts 678), that would warrant any reduction from 4 years.

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The appellant did not plead guilty, he continued to deny the offence after his conviction and he had not shown remorse at the time of sentencing. The offences were committed in breach of a suspended term of imprisonment. The appellant lied to the police during his police interview. In addition, he had a significant criminal record which included violent offences and included one conviction for an aggravated unlawful assault occasioning bodily harm against the present victim. The appellant submits that the seriousness of this offence was reduced by the fact that there were no circumstances of aggravation. This submission has no merit because the 'starting point' of 4 to 6 years assumes that there are no aggravating factors. That would not put it into a less serious category for an offence under s 325 of the

Criminal Code

(WA). At the appeal hearing, counsel for the appellant emphasised that the period of offending was relatively short. In his submission, it was a maximum 5 to 10 minutes. He submitted that the brevity of the ordeal should have been reflected in the sentence. However long the ordeal lasted, it was certainly long enough for the appellant to sexually penetrate the victim without her consent in the circumstances outlined above. Counsel for the appellant also submitted that the offence was of a less serious nature because the parties had previously been in a consensual sexual relationship. That is not a mitigating factor.

95 The sentence of 4 years was not manifestly excessive. None of the other sentences were manifestly excessive. Ground 1 has no reasonable prospect of succeeding.

Ground 2

96 This ground of appeal alleges that the total effective sentence infringes the first limb of the totality principle. The total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and having regard to all relevant circumstances including those referable to the offender personally, and the total effective sentences imposed in comparable cases: Ugle v The State of Western Australia [2012] WASCA 104 [44]. The total effective sentence imposed on the appellant was 8 years' imprisonment. In addition, the appellant had spent 328 days in remand at the time of sentencing. The appellant submits that the appellant's offending involved a low level of criminality compared to other recent cases in which the offender received a similar sentence.

97 The appellant cites The State of Western Australia v Turaga [2006] WASCA 199 in support of that submission. In that case, the offender had

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been convicted of 15 counts of aggravated sexual penetration without consent. This court set aside the sentence imposed by the sentencing judge and in lieu thereof imposed a total effective sentence of 7 years and 4 months' imprisonment. The offending was violent and the victim suffered substantial injuries. She was degraded and forced to perform humiliating acts over a three hour period. The offender was armed with a knife. Those circumstances put the offending into a more serious category than the present case, however the sentence reflected a one third reduction for the offender's fast track guilty plea and was also reduced because of principles that applied then in relation to State appeals and because the offender had shown remorse.

98 The appellant also points to Lindsay v The State of Western Australia [2010] WASCA 142. The appellant in that case was sentenced to a total effective sentence of 8 years' imprisonment for three counts of aggravated sexual penetration without consent. The offences in that case were degrading and violent to the extent that the victim lost consciousness. The appellant in Lindsay pleaded guilty, and although that plea was entered in the days immediately prior to trial, it warranted some reduction of the sentence. The offending in the present case was less violent than in Lindsay, but it was premeditated, and the victim was told repeatedly that she was going to die.

99 In Juma v The State of Western Australia [2011] WASCA 54 the appellant received a total effective sentence of 8 years' imprisonment for three counts of aggravated sexual penetration without consent, three counts of sexual penetration without consent and one count of attempted sexual penetration without consent. There were two victims, with the offences against the second victim occurring approximately two and a half months after the offences against the first. This made the offending more serious. However, the sentence in Juma reflected the fact that the appellant had no criminal record. It reflected the time that the appellant had spent in immigration detention, and the good work that he had done in the community assisting refugees. This can be contrasted with the appellant's substantial criminal record and his propensity to behave violently.

100 Counsel for the appellant contends that the sentencing judge should have ordered that the sentences for count 4 and count 6 be served concurrently because the offences occurred over a short period of time. There is no requirement, even where multiple offences arise out of a single transaction, that concurrent sentences be imposed. The total

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effective sentence in this case properly reflects the appellant's overall criminality. Ground 2 has no reasonable prospect of succeeding.

101 The application for leave to appeal against sentence should be dismissed.

102 BUSS JA: I agree with the orders proposed by Pullin JA, namely that the application for leave to appeal against conviction and the application for leave to appeal against sentence should be dismissed.

Application for leave to appeal against conviction

103 I agree with Pullin JA, for the reasons he gives, that grounds 1 - 11 of the application for leave to appeal against conviction have no reasonable prospect of success.

104 I propose to state my own reasons in relation to ground 12. This ground reads:

The verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.

105 By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

106 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

Clarke v The State of Western Australia

[2013] WASCA 67

12 MARCH 2013

CLARKE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 67