D L J v The Queen
[2011] VSCA 389
•25 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0082 |
| DLJ |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN JA and WHELAN and ROBSON AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 September 2011 | |
DATE OF JUDGMENT/ORDER: | 25 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 389 | |
JUDGMENT APPEALED FROM: | County Court of Victoria, Judge Wilmoth, 19 March 2010 | |
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CRIMINAL LAW – Application for leave to appeal conviction – Applicant convicted of eight counts of incest and one count of indecent assault of step-daughter – Absence of specific propensity warning in relation to discreditable conduct correct – No further direction as to use of evidence warranted – Verdicts not unsafe or unsatisfactory - Application for leave refused.
CRIMINAL LAW – Application for leave to appeal sentence – Total effective sentence of 9 years’ imprisonment with non-parole period of 6 years not manifestly excessive – Application for leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Johns | Haines & Polites |
| For the Respondent | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Whelan AJA.
WHELAN AJA:
Between 12 February 2010 and 23 February 2010 the applicant was tried in the County Court on nine counts of incest and two counts of indecent assault. The alleged victim of each of these offences was his stepdaughter, who I will refer to as the complainant.
Each offence was alleged to have occurred during a specified period. The earliest date referred to in the presentment was in September 1983 and the latest was in September 1988. The prosecution case was that that the offences occurred when the complainant was between the ages of 11 and 15 years’ old.
At the close of the prosecution case there were directed acquittals on one of the indecent assault counts (count 3) and one of the incest counts (count 10). The jury returned verdicts of guilty on 8 counts (counts 1, 2, 4, 5, 6, 7, 8 and 9) and not guilty on one count (count 11).
A plea hearing was held on 3 March 2010. The applicant was sentenced on 19 March 2010 to a total effective sentence of 9 years’ imprisonment with a non-parole period of 6 years.
The applicant now seeks leave to appeal his conviction and sentence.
Conviction application
Dealing first with the application in relation to conviction, there are four grounds now relied upon.
The first is that the trial judge failed to give a specific propensity warning in relation to what is said to have been ‘a large body of discreditable evidence,
unrelated to the allegations of sexual abuse’. The particular evidence which, it is suggested, ought to have been the subject of this warning is evidence of the complainant’s bed wetting and her treatment by the applicant as a result; evidence of threats made to a boyfriend of the complainant; evidence of the applicant having taken stimulants; evidence of the applicant having drugged his wife, the complainant’s mother; and evidence of the applicant having a cruel and controlling character generally.
The second ground also concerned the evidence of bed wetting. It is submitted that the trial judge failed to properly deal with this evidence by explaining to the jury what its relevance was and how it could be used, and that as a consequence there was significant potential for misuse of the evidence.
Thirdly, it is submitted that the verdicts on the counts where the jury found the applicant guilty are unsafe and unsatisfactory.
The final ground is that the cumulation of the errors referred to in the other grounds together with other complaints, being what was said to be inadequate directions as to prior inconsistent statements, a failure on the prosecutor’s part to challenge the applicant’s denial under oath, and concerns in relation to the jury’s deliberations, meant the trial miscarried.
The course of the trial
The first witness for the prosecution was the complainant. When initially asked about her relationship with her stepfather she described him as ‘very controlling’ and said that he always had her ‘under his wing’.
She was then specifically asked about sexual abuse.
She described the first occasion upon which she says abuse occurred. She said it was an act of penetration which took place in the lounge room of the family home. Amongst other things, she said that the applicant ejaculated into a towel which he called either the ‘naughty towel’ or the ‘nookie towel’. She said that this was a towel that he used in sexual experiences with either her or her mother. This conduct was alleged to constitute count 1 (incest).
She described a further occasion of penetration by reference to an event where her mother went to the fish and chips shop. This conduct was alleged to constitute count 2 (incest).
The next occasion which the complainant described was two alleged acts of penetration and an alleged indecent assault which occurred when her mother ‘had taken something that made her act in a funny sort of way’. The incident was introduced by the prosecutor with a leading question about the mother’s conduct and he then stopped the complainant from elaborating upon that. The complainant said that there were two acts of penetration and two ejaculations by the applicant on this occasion and that the applicant licked ejaculate off her stomach. This was the conduct alleged to constitute counts 4, 5 and 6 (two counts of incest and one of indecent assault).
When she was queried in relation to her account that after ejaculating the first time he still had an erection and he ejaculated a second time the complainant said: ‘ … he was on – on stimulants at that occasion’.
The next occasion referred to by the complainant allegedly occurred in her younger half sister’s bedroom and involved two penetrations. This conduct allegedly constituted the offences in counts 7 and 8 (two counts of incest).
The next incident described by the complainant was an occasion upon which the applicant allegedly produced a vibrator, which he told the complainant was her mother’s, and that he put that against her vagina. This conduct was alleged to constitute the offence in count 9 (indecent assault).
The final incident described by the complainant allegedly occurred when she was around 15 on a camping trip where she was sleeping in the same tent as the applicant. This was an act of penetration and was alleged to constitute the offence in count 11 (incest).
After giving an account of the various incidents, the complainant was then asked whether she had had any problems with her bladder at around that time. She said that she used to wet her bed every night. She said that her stepfather’s reaction to that was ‘derogatory, degrading, he would embarrass me’. She described the applicant grabbing her mattress and throwing it outside or throwing it into the laundry. She described it being displayed outside or on a clothesline so that others would see it.
She was asked in some detail about the sleeping arrangements and activities in the house and she identified a number of photographs.
In her cross-examination she was asked again about the relationships and movements of the various members of the family and in particular her mother, her stepfather, her two brothers, and her younger half sister. In essence what was being put was that her description of an act of penetration in the lounge room during the day (count 1) was so improbable as to be unbelievable. It was put that what she had said about that was invention.
The complainant was cross-examined at length about her relationship with the applicant after she left home at the age of 17, and in particular about the extent of contact between them and whether the applicant helped her when moving house on a number of occasions. It was put to the complainant by defence counsel that she would have been ‘terrified’ of the applicant, given the sexual abuse she says occurred; and, after she accepted that, he asked her to confirm it in response to which she said she had been ‘controlled’, ‘nervous’, and that she never knew when he was going to ‘lash out’. The complainant had left home at 17 to live with a boyfriend. In the course of this cross-examination she described herself when she was with this boyfriend as being ‘on the run’ from the applicant, and she also said that the applicant was chasing her and that he was threatening the boyfriend.
It was put to her that she had had a number of dealings with the applicant after she left home, the implicit point being that those dealings were of a nature which were inconsistent with the allegations she now makes, and it was also put to her that, on her account, she was abused on a very large number of occasions and yet no-one else in the house had ever noticed it.
It was then put to her that regardless of the sexual abuse she had had a very unpleasant childhood. She was challenged about the evidence she had given about camping trips with the applicant and it was put to her that she was treated differently to the applicant’s natural daughter (the younger half sister), that she had had to help the applicant with his work which she ‘hated’, and that the applicant had not allowed her to see her friends.
Counsel for the applicant then cross-examined her about the bed wetting at some length. The cross-examination was not directed towards minimising the significance of the hurt and embarrassment which she had suffered at her stepfather’s hands on this issue, but rather at emphasising it and accentuating it. She repeated how embarrassed and humiliated she was at the way the applicant would deal with the mattress. At the applicant’s counsel’s instigation, she agreed that he would call her offensive names, that the other family members followed suit, and that she blamed him for the entire family calling her names which embarrassed and humiliated her.
She was asked about the fish and chips shop incident and it was put to her that what she had said about that was invention.
It was then put to her that the evidence she had given about the incident which occurred after her mother had been behaving in an unusual way was also invention. It was put to her that she had stated previously that she had drugged her mother. She denied that and said that her stepfather (the applicant) told her that he had drugged her mother. She was then taken to evidence which she had given at the committal where she had said that she remembered her mother being drugged by her father and she remembered him telling her to put something in her cup of tea or in her food. At the committal she had then gone on to say that her stepfather had told her that he had put something into her cup of tea or her food. There was debate between counsel as to whether what she had said was inconsistent with her evidence in the trial or not. It was put to her that her account of her stepfather saying to her that he had drugged her mother was not credible in the context of their relationship as she had described it whereby he degraded and humiliated her. It was put to her that her account of this incident was ‘extraordinary invention’.
She was cross-examined about the alleged incident involving the vibrator .
She was cross-examined at length about the incident alleged to have occurred whilst camping and was asked in particular about who attended the camping trips. I will not go into the detail of that cross-examination save to say that that evidence laid the foundation for a subsequent submission that was put to the jury that there were a significant number of inconsistencies in the evidence about the camping trips.
The complainant agreed that a boyfriend that she had at about the time of the conduct alleged to constitute count 11 used to go on the camping trips with them. That boyfriend did not give evidence, and evidence was given by a police witness as to their inability to locate him.
In re-examination she gave further evidence of the applicant ‘chasing’ her and threatening her boyfriend after she left home.
The complainant’s mother gave evidence. She said that at the time of the alleged offences she had thought that her husband and her daughter had a good relationship. She said, however, that she had caught them in bed quite a few times together under the doona but she couldn’t say whether they were dressed or not.
In cross-examination she confirmed she said there had been an occasion where she had seen her daughter under a sheet covered in blood. The complainant when she gave evidence had said that no such incident had occurred.
The complainant’s mother did not give any evidence in chief about the bed wetting problems, but defence counsel took her to that topic and dealt with it in some detail. Again, the burden of the questioning was not to minimise the hurt and embarrassment the complainant was subjected to by the applicant but rather to emphasise and accentuate it.
The complainant’s mother was also asked about who went on the camping trips, and about the considerable period of delay which elapsed before she told the police about having seen her husband and the complainant in bed together.
One of the complainant’s brothers gave evidence for the prosecution. He said that he had seen the complainant and the applicant in bed once or twice a week during the course of his childhood.
In cross-examination he was asked about the camping trips. Like his mother, he gave no evidence in chief about the bed wetting, but he was asked about that in cross-examination. Again, the purpose of the cross-examination was not to minimise the hurt to which the complainant was subjected but rather to emphasise it.
The boyfriend the complainant went to live with when she left home at 17 had worked in a video store. The trial judge ruled evidence of complaints made by the complainant to this boyfriend to be inadmissible. Defence counsel submitted to the trial judge that he should nevertheless be called by the prosecution because his evidence about the nature of the relationship between the complainant and the applicant after the complainant had left the family home was both relevant and important. In response to this submission the prosecutor said that he would ‘try and get him’.
Submissions were also made as to whether this boyfriend could give evidence of being ‘threatened’ by the applicant. The trial judge observed that upon her reading of his statement there was no threat. She ruled that he could give evidence of what happened in his dealings with the applicant on the basis that those dealings were relevant to the relationship between the applicant and the complainant.
The boyfriend was called by the prosecution but, in the first instance, gave no evidence in chief of any substance.
He was cross-examined about their dealings with the applicant, and in particular about the applicant having assisted him and the complainant to move and about celebrations when the complainant’s children were born.
After an interchange between the trial judge and the prosecutor as to the effect of her prior ruling the prosecutor was permitted to lead some further evidence in chief.
The boyfriend was then asked about an incident immediately after the complainant had left home where the applicant had attended the video store where he worked. He said that the applicant had told him that the complainant was only 17 and that if he did not hear from her by a specified time he was going to come back. He said the applicant was with a ‘big blond headed guy’ at the time.
He was then cross-examined again. He was not asked about the video shop incident. It was put to him that he had attended regularly at the family home with the complainant for a number of years and he said that that did not occur regularly and that it was a ‘pretty icy relationship’.
At the close of the prosecution case, as there had been no evidence concerning counts 3 and 10, there were directed acquittals on those counts.
The applicant gave evidence. After a brief description of the house, the first topic he was taken to was the bed wetting. He was asked to describe his behaviour in relation to the bed wetting. He said that he had got very annoyed. He agreed that he had taken the mattress to the laundry and outside to dry. He was asked whether he was proud of the way he had behaved and he responded: ‘No I’m not. No, not – now I’m older no’.
He denied the complainant’s allegations of inappropriate contact at any time. He said that she had been upset at having to work with him. He said he had had a very bitter separation with the complainant’s mother. He described contact with the complainant after she had moved out which included assisting her to move houses from time to time and visiting her when she had her children.
The cross-examination of the applicant was fairly brief. It was not expressly put to him that he was lying about there never having been inappropriate conduct.
The last topic dealt with in his cross-examination concerned the ‘naughty towel’. He was asked whether he did in fact have such a towel and he responded: ‘No. Not as far as I know, no’. He was then taken to evidence which he had previously given where he had said there was such a towel and that it was something between himself and his wife. Upon being challenged on that contradiction, he agreed that he had told a lie on his oath when he had said that he did not know of such a towel.
The complainant’s younger half sister gave evidence describing her life in the family home and saying that she had never observed anything inappropriate. She also gave evidence of what she said were the complainant’s weekly visits to the family home after she had left. Like the other family members she was asked about who went on the camping trips.
The prosecutor’s address to the jury was not transcribed, or was only partly transcribed.[1] At its conclusion defence counsel submitted to the trial judge in the absence of the jury that the prosecutor had either implicitly or explicitly put to the jury that the bed wetting issue was a possible motive for the complainant to have lied about the sexual abuse to which she says she was subjected. Counsel for the defence submitted to the trial judge that no such proposition had been advanced by the defence and that it was not proposed to put the matter in that way to the jury. Her Honour suggested that in the circumstances it would be wise to give what was referred to as a Palmer direction, which is a reference to R v Palmer.[2] Defence counsel submitted to her Honour that she should take that course. Her Honour and defence counsel then discussed the form of that direction.
[1]What was said to be a transcript of part of the prosecutor’s address was handed up in the course of argument.
[2](1988) 193 CLR 1.
It seems to me that the trial judge was right to apprehend that the bed wetting evidence was likely to be seen as a possible motive to lie given the way the matter was dealt with by defence counsel during the course of the evidence. It is clear that it is an aspect of the evidence that defence counsel was concerned to highlight. His cross-examination was directed towards accentuating and emphasising the embarrassment and hurt which the complainant had suffered as a result of the applicant’s response to her bed wetting. Before his final address defence counsel maintained he would not put the matter as a motive to lie but he agreed with the trial judge that it was appropriate and desirable to address the issue by giving a Palmer direction.
Before the defence final address a number of other issues in relation to the judge’s charge were addressed between defence counsel and the trial judge, including directions as to the lie told by the applicant in his evidence, the failure by the prosecutor to put to the younger half sister that her evidence about the camping trips was untrue, the consequences of delay and in particular forensic disadvantage to the applicant, and directions as to ‘oath against oath’.
The first matter of substance which defence counsel in his final address raised was what were said to be inconsistencies in the evidence, both between what the different witnesses said and on the basis of what were said to be prior inconsistent statements. The contradictions were said to be especially stark in relation to the evidence concerning the camping, and it was also suggested that the contradictions were stark in relation to contact after the complainant left home. Issues of credit were dealt with at length, and the issue of forensic disadvantage was also dealt with.
Defence counsel explicitly referred to the evidence concerning the bed wetting at only one point. The only submission explicitly made about that was that the jury’s decision was not about whether the applicant had been a good stepfather. Later in the final address, he put to the jury that you can’t always tell why someone lies, that you might know someone is lying without knowing why, that sometimes people lie for a combination of reasons or they might lie for a specific reason, that there was something ‘just a bit wrong in this case’, and that there had been a ‘division’ within this family.
In the judge’s charge, after giving standard directions including directions as to separate consideration, the trial judge dealt with each of the counts in turn. She addressed the evidence in detail and gave specific directions on a number of matters in the context of that evidence. It seems to me that she gave all of the directions sought by the defence in the terms which the defence had sought. She gave directions as to uncharged acts of sexual abuse, forensic disadvantage and the possible effects on memory as a result of delay, prior inconsistent statements, the accused’s lie, oath against oath, the possibility that the bed wetting gave the complainant a motive to lie, and the prosecutor’s failure to put certain matters to the younger half sister. She summarised the addresses. In the course of that summary she repeated what defence counsel had said about the bed wetting.
The trial judge summarised the evidence about bed wetting but did not address it further, other than in the Palmer direction and in the context of summarising defence counsel’s final address.
During the course of the charge defence counsel made further submissions to the trial judge in relation to the directions on forensic disadvantage and effect upon memory of delay, and in relation to the accused’s lie.
At the end of the charge there were no exceptions.
I turn then to the specific grounds now relied upon in relation to the conviction.
Failure to give a specific propensity warning
The ground of appeal is expressed as follows:
The trial miscarried due to the learned trial judge’s failure to give a specific propensity warning in respect of evidence of discreditable conduct led in the trial including:
(i) evidence relating to bed wetting;
(ii) evidence relating to the applicant taking stimulants;
(iii) evidence of the applicant ‘drugging’ his wife;
(iv) evidence of the alleged threat to [the boyfriend];
(v) evidence of the applicant’s cruel and controlling character generally.
In the applicant’s written outline the evidence was characterised as evidence which revealed discreditable conduct. The written submission did not address the evidence on the basis it might be seen as revealing a propensity to commit the charged offences.
In oral submissions, it seemed to me that it was suggested that any evidence revealing discreditable conduct would require a ‘propensity’ warning. I do not accept that as an invariable proposition. Whilst evidence of non-criminal discreditable conduct can be evidence of ‘propensity’[3], evidence of discreditable conduct does not inevitably constitute propensity evidence, even where the conduct is a crime. The decision in Glascott v The Queen[4] is a good illustration. As the Court of Appeal explained there, evidence of a disposition to commit arson was not evidence of a propensity to commit murder.[5]
[3]R v Tektonopoulos [1999] 2 VR 412, 417; R v Best [1998] 4 VR 603, 608.
[4][2011] VSCA 109.
[5][2011] VSCA 109, [22].
It seemed to me that in the course of oral submissions the applicant’s counsel did attempt to articulate a propensity element in the bed wetting evidence. As I understood it, what was put was that a disposition to humiliate the complainant and act in total disregard of her feelings, as revealed by the evidence of his reaction to the bed wetting, might be seen to make it more likely that he would humiliate her and act in disregard of her feelings in relation to the sexual abuse. It was submitted that the judge ought to have not only warned the jury not to be prejudiced against the applicant because of the evidence which might have been seen to reveal him in a discreditable light about the bed wetting, but also that she ought to have directed them not to reason on the basis of that evidence that he was the kind of person who would have perpetrated the acts of incest and indecent assault which were alleged.
It is important that the directions which it is now said ought to have been given were not sought by defence counsel at the trial, and that no exception was raised in relation to the judge’s charge by defence counsel at the trial. This is not a case where it could be maintained that defence counsel was not giving the issue of what directions ought to be given to the jury active consideration. He made extensive submissions to the trial judge as to the directions required and, it seems to me, his submissions were accepted.
As to the evidence relating to bed wetting, defence counsel conducted the trial with a view to emphasising and accentuating that evidence. This was a forensic decision he made. In the circumstances, there was a rational basis for that decision. He had to lay some kind of foundation in the jury’s mind which might give credence to the suggestions put to the complainant that what she said about the abuse was all invention. Whilst defence counsel disavowed that argument before his final address to the jury, I cannot conceive of why he would otherwise have adopted the course he did in his cross-examination. In any event, in his final address the argument was put that the complainant might have many reasons to lie. The fact that the bed wetting issue was one obvious one was no doubt why the judge apprehended that a Palmer direction was necessary and why defence counsel agreed with that course. Indeed, as counsel for the respondent submitted on this application, in the end the trial judge herself put the bed wetting issue as a motive to lie to the jury in her charge.
In my view the judge was right not to give a propensity warning in relation to the bed wetting evidence. Such a warning would, it seems to me, have been dangerous from the applicant’s point of view. It would have suggested a mode of reasoning which was never raised at trial. In my view it is far fetched to characterise the bed wetting evidence as potentially revealing a relevant propensity to commit incest and indecent assault.
I have observed that no propensity direction was sought in relation to this evidence at trial, and that the issue was emphasised by defence counsel in the course of the evidence. Of course, if the absence of a propensity warning did entail a serious risk of injustice, those circumstances would not prevent a conclusion that there had been a miscarriage of justice.[6] Those circumstances are relevant to determining whether there was such a risk in this case.
[6]Paton v The Queen [2011] VSCA 72, [34]-[37].
The judge could have given a general warning in relation to that conduct, in terms merely reminding the jury that they should not allow their views about the applicant’s reaction to the bed wetting to colour their judgment, in much the same way as defence counsel did in his final address. But in the circumstances of this case it cannot be said that the failure to do so caused the trial to miscarry.
The evidence relating to the applicant taking stimulants was inseparable from the complainant’s description of the offences said to constitute counts 4, 5 and 6. This entire account was said by the defence to be invention. There was no evidence as to what the ‘stimulants’ might have been. There are legal and illegal stimulants. A teenager could also be describing medications not properly described as a ‘stimulant’ by using that term. By addressing that matter in the way now contended for, it seems to me that the trial judge would have been creating a risk of speculation and impermissible reasoning rather than addressing one.
The evidence about the applicant drugging his wife was led by the defence. It was led on the basis that what the complainant said about that was inconsistent with a prior sworn statement and also on the basis that it revealed the incredible character of her evidence. Again, to have addressed that evidence in the way now suggested would have been dangerous from the applicant’s point of view, it seems to me. It could only have been done upon the premise that the jury accepted the complainant’s evidence that the applicant had told her he had drugged her mother.
In relation to the evidence of the threats to the boyfriend, when the boyfriend gave evidence there was no reference to any explicit threat, and the complainant’s evidence in that respect was vague and general. The trial judge could have given a general warning about prejudice, but, again, if the trial judge had addressed the matter in that way, it seems to me that she may have created the very risk which is said to be of concern.
The evidence which could properly be described as evidence of the applicant’s ‘cruel and controlling character’ was evidence which was led by the defence in the course of the complainant’s cross-examination. No relevant propensity element to this evidence was articulated.
In my view, a propensity warning in relation to the various aspects of the evidence referred to under this ground, in the circumstances of this case, would have been unwarranted and dangerous from the point of view of the applicant. I do not consider that any of the evidence had a relevant propensity element. No-one at the trial seems to have identified such a possibility.
A general warning about not allowing the evidence about discreditable conduct to prejudice judgment could have been given, but I do not think it was necessary that that be done, and even that kind of warning could well have done more to create rather than eliminate the risks which are said to be of concern.
In all of this, it is of considerable significance that trial counsel for the applicant did not apprehend the need to address any of these issues at the time. If there was a real risk of prejudice or of impermissible reasoning I would have expected counsel to raise it at the trial.
In my view this ground is not made out.
Misuse of the evidence of bed wetting
It is submitted that the bed wetting evidence had no defined purpose and that, apart from the Palmer direction, the jury was given no guidance whatsoever as to how they could use the evidence and what relevance it had.
The bed wetting evidence was given prominence during the trial. Having read the entire transcript, my conclusion is that the principal reason for its prominence was the emphasis placed on it by defence counsel.
Many aspects of family life were explored in the trial, as is inevitable in a case of this kind. Issues such as who slept where, who walked in and out of what rooms, whether the children were treated differentially, who went on the camping trips and who stayed at home, how often there were visits to the fish and chips shop, how often the complainant visited after she moved out and so on were all explored. I do not consider that a description could have been given of family life over the relevant years without some reference being made to the bed wetting.
The evidence was not objected to. On the contrary, most of it was led by the defence. No issue was raised about it with the trial judge other than in the context of the Palmer direction.
I do not consider that the trial miscarried because the trial judge failed to give further directions about it than those she did give. She was right to address the issue of motive to lie. Otherwise, the evidence was one part of a web of evidence about the relationships and activities of the family which gave context to the evidence of all the witnesses including the applicant about alleged offences. In my view, it would have been seen as such by the jury.
Verdicts unsafe and unsatisfactory
It is submitted that the complainant’s evidence was vague and uncertain; that she had made prior inconsistent statements; that her evidence was inconsistent in certain respects with the evidence of her mother and her brother; that the applicant had denied the allegations on oath; that the prosecution case in general lacked probative force; and that the acquittal on count 11, the jury questions and the length of the deliberations, requires a conclusion that a properly instructed jury must have had a reasonable doubt.
I do not agree. There was no solid obstacle in this case to the jury reaching a conclusion of guilt beyond reasonable doubt.
The verdict on count 11 is perfectly understandable. To the extent that there were contradictions in the evidence, they were most obvious in relation to the issue of who went on the camping trips and who slept in what tents, which was important in relation to count 11. Further, whilst there was some evidence consistent with the complainant’s account of what had happened in the home, there was none in relation to the camping trip.
Accumulation of errors
In my view there is nothing in the ground that there was an accumulation of errors constituted by the grounds already referred to together with what was said to be a failure on the part of the prosecutor to challenge the applicant’s denials in his oral evidence, or the trial judge’s directions in relation to prior inconsistent statements, or arising out of the jury’s deliberations.
It is again significant that these matters were not raised by defence counsel at the trial.
The application for leave to appeal the conviction should be refused.
Sentence
The applicant was sentenced to 4 years’ imprisonment on each of the incest counts of which he was found guilty (counts 1, 2, 4, 5, 7 and 8). He was sentenced to 2 years’ imprisonment on one of the indecent assault counts (count 6 – licking the ejaculate off her stomach) and 18 months’ imprisonment on the second indecent assault count (count 9 – the vibrator).
The sentencing judge made count 1 the base sentence and ordered one year’s
cumulation in relation to each of the incest sentences with the exception of count 8 as to which no cumulation was directed. She ordered that six months of each sentence for indecent assault be cumulated. This resulted in a total effective sentence of 9 years. She ordered that a term of 6 years’ imprisonment be served before the applicant became eligible for parole.
Consequent upon his conviction on counts 1 and 2 the applicant was a serious sexual offender for the purpose of count 4 and the subsequent counts. Her Honour found there was no need for a sentence that was longer than proportionate to the gravity of the offence.[7]
[7]Her Honour’s directions as to count 4 and the subsequent counts perhaps ought to have been expressed by reference to the extent of concurrency rather than cumulation (see s 6E of the Sentencing Act 1991), but her intention was clear and no issue was raised in relation to that on this application.
The only ground relied upon in relation to sentence is that the sentence is manifestly excessive. It is clear that that is not so. There were a number of factors which mitigated the applicant’s offending, including delay and his personal background and circumstances. Her Honour took those matters into account. She also took into account the fact that the applicant’s offending persisted over a number of years and had had profound and long lasting psychological and emotional effects on the victim. His offending involved a serious betrayal of trust. Her Honour had proper regard to the principle of totality.
In the circumstances, her Honour’s sentences, the total effective sentence and the non-parole period fall well short of anything which could be described as manifestly excessive.
The application for leave to appeal the sentence should also be refused.
ROBSON AJA:
I also agree with Whelan AJA.
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