DDW v The State of Western Australia
[2015] WASCA 76
•10 APRIL 2015
DDW -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 76 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:115/2014 | 15 DECEMBER 2014 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 10/04/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DDW THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal against conviction Sexual offences against children under the age of 13 years Whether miscarriage of justice by reason of conduct of defence counsel at trial Leave to appeal against sentence 7 years' imprisonment Whether total effective sentence infringed first limb of the totality principle |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3) |
Case References: | Bosworth v The Queen [2004] WASCA 43 Bropho v The State of Western Australia [No 2] [2009] WASCA 94 Browne v Dunn (1893) 6 R 67 HL Crofts v The Queen (1996) 186 CLR 427 HFM v The State of Western Australia [2012] WASCA 217 House v The King (1936) 55 CLR 499 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 LWJR v The State of Western Australia [2009] WASCA 200 McMahon v The State of Western Australia [2010] WASCA 143 MJS v The State of Western Australia [2011] WASCA 112 PDS v The State of Western Australia [2006] WASCA 20 RMS v The State of Western Australia [2010] WASCA 76 RNN v The State of Western Australia [2010] WASCA 26 Truscott v The State of Western Australia [2007] WASCA 62 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DDW -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 76 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- CACR 116 of 2014
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KEEN DCJ
File No : IND XXX of 2013
Catchwords:
Criminal law - Leave to appeal against conviction - Sexual offences against children under the age of 13 years - Whether miscarriage of justice by reason of conduct of defence counsel at trial
Leave to appeal against sentence - 7 years' imprisonment - Whether total effective sentence infringed first limb of the totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bosworth v The Queen [2004] WASCA 43
Bropho v The State of Western Australia [No 2] [2009] WASCA 94
Browne v Dunn (1893) 6 R 67 HL
Crofts v The Queen (1996) 186 CLR 427
HFM v The State of Western Australia [2012] WASCA 217
House v The King (1936) 55 CLR 499
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
LWJR v The State of Western Australia [2009] WASCA 200
McMahon v The State of Western Australia [2010] WASCA 143
MJS v The State of Western Australia [2011] WASCA 112
PDS v The State of Western Australia [2006] WASCA 20
RMS v The State of Western Australia [2010] WASCA 76
RNN v The State of Western Australia [2010] WASCA 26
Truscott v The State of Western Australia [2007] WASCA 62
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wilson v The State of Western Australia [2010] WASCA 82
1 McLURE P: I agree with Mazza JA.
2 NEWNES JA: I agree with Mazza JA.
3 MAZZA JA: Before the court are the appellant's applications for leave to appeal against conviction (CACR 115 of 2014) and sentence (CACR 116 of 2014).
4 The appellant was charged by an indictment filed in the District Court as follows:
(1) On a date unknown between 1 May 1996 and 1 January 1998 at [a country town] [the appellant] indecently dealt with [CN], a child under the age of 13 years, by procuring her to touch his penis [s 320(4) Criminal Code]
(2) On the same date and at the same place as in Count (1) [the appellant] procured [CN], a child under the age of 13 years, to do an indecent act, namely to touch her vagina [s 320(5) Criminal Code]
(3) On the same date and at the same place as in Count (1) [the appellant] indecently dealt with [CN], a child under the age of 13 years, by masturbating in her presence [s 320(4) Criminal Code]
(4) On a date unknown between 31 December 1997 and 30 May 1998 at [a Perth suburb] [the appellant] sexually penetrated [CN], a child under the age of 13 years, by engaging in cunnilingus [s 320(2) Criminal Code]
(5) On the same date and at the same place as in Count 4 [the appellant] indecently dealt with [CN], a child under the age of 13 years, by masturbating in her presence [s 320(5) Criminal Code]
(6) On a date unknown between 25 April 2010 and 1 January 2011 at [another country town] [the appellant] sexually penetrated [AS], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger [s 321(1) Criminal Code].
5 The appellant was tried by Keen DCJ and a jury. His Honour found the appellant not guilty of count 1, on the basis that there was no evidence to support that charge. However, by verdict of the jury on 30 April 2014, he was found guilty of counts 2 to 6.
6 On 30 May 2014, the appellant was sentenced to 18 months' imprisonment on count 2, 2 years' imprisonment on count 3, 4 years' imprisonment on count 4, 2 years' imprisonment on count 5 and 3 years' imprisonment on count 6 (reduced from 4 years' imprisonment for totality). His Honour ordered that the sentences on counts 2 to 5 be served concurrently with each other and that count 6 be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 7 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 30 April 2014.
7 With respect to the appeal against conviction, the appellant alleges several miscarriages of justice as a result of the conduct of his trial counsel. With respect to the appeal against sentence, the appellant does not complain about any of the individual sentences that were imposed upon him. Rather, he alleges that the total effective sentence of 7 years infringed the first limb of the totality principle.
8 For the reasons that follow, none of the proposed grounds of appeal, in each appeal, have a reasonable prospect of succeeding. Accordingly, each appeal is to be taken to have been dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).
The evidence
The State's case
9 Counts 2 to 5 concern CN. The appellant was, at the time of the offences, CN's stepfather by virtue of his marriage to CN's mother, JC. The offences were alleged to have occurred at the family home, which was initially in a country town and then later in a Perth suburb.
10 With respect to counts 2 and 3, CN, JC and CN's siblings were living with the appellant in a country town. JC was, at the time, working as a taxi driver, leaving the appellant to babysit her children. On one such occasion, CN was in the appellant's bedroom. At the time she was 6 years old. The appellant took off her clothes and told her to sit on his knee. He then placed his hand on her hand and had her touch her vagina (count 2). The appellant asked her if it felt good (ts 49). While this was happening, and in CN's presence, the appellant masturbated (count 3) (ts 49).
11 The appellant told her that what happened was 'our secret' and not to tell anybody because, if she did, she would 'just be a dirty little girl causing trouble' (ts 51).
12 Counts 4 and 5 occurred in the Perth suburb. CN was, at this time, 7 or 8 years of age. On an occasion when JC was not at home, the appellant led CN to his bedroom and told her to lie on the bed. The appellant told her to put her feet on the end of the bed and said that what he was about to do was 'better than medicine' (ts 69). He then spread her legs apart, either squatted or knelt on the floor, and performed cunnilingus upon her (count 4). At the same time, in CN's presence, he masturbated (count 5) (ts 70 - 71).
13 CN testified that the first person she told about what had happened to her was a babysitter named Carmen. She said this occurred when she was 8 years old (ts 72). CN said it was not very long after that she spoke to a psychiatrist at Princess Margaret Hospital. She testified she did not speak to the police until 'about two years' before the trial. She said she did not contact the police earlier because 'I thought they [the police] tried when I was eight' (ts 75).
14 JC gave general evidence, inter alia, about the names and birthdates of her children, her relationship with the appellant and the locations at which they lived. In cross-examination, JC agreed that after her separation from the appellant in June 1998, proceedings were commenced in the Family Court which were protracted and acrimonious (ts 121). These proceedings concerned the custody and access of CN and her siblings. JC said just after she separated from the appellant, but prior to the commencement of proceedings in the Family Court, she was informed of CN's allegations against the appellant. She said she took CN to a doctor who then referred CN to Princess Margaret Hospital. There CN was seen by a psychiatrist and medically examined.
15 Some years later, the appellant met KS and commenced a relationship with her. AS, the complainant the subject of count 6, is KS's daughter.
16 In 2010, the appellant, KS and AS were living in another country town. The State alleged that count 6 occurred one evening when KS was unwell and had gone to bed. AS was 13 years of age at this time (ts 147). AS said that while she and the appellant were watching television, the appellant began to talk to her about sex. He said that, as she was getting older, she did not need a man to please her and that she could 'do it' on her own. He told her that if she needed help, he could do so, and that he had 'done it before' with one of his stepdaughters (ts 137). The appellant elaborated on what he meant by 'done it'. He told AS that he had 'fingered' his stepdaughter while she was asleep (ts 138). AS felt very uncomfortable with the conversation and went to bed.
17 Sometime later, the appellant tapped on AS's bedroom door and spoke to her in a very quiet whisper (ts 142). AS pretended to be asleep. The appellant opened the bedroom door and walked in. He approached her bed and rubbed up and down her leg. AS moved as close to the wall as she could, still pretending to be asleep. The appellant slid AS's boxer shorts and underwear down her leg and inserted his fingers into her vagina (ts 143). While this was happening, the appellant rubbed her breast (ts 144). AS wriggled and 'sort of shove[d] him off'.
18 According to AS, the appellant then engaged in cunnilingus with her, although this act was not the subject of any charge. AS rolled over and saw the appellant kneeling next to her bed. She asked him what he was doing. He replied to the effect that he had heard a noise in her bedroom and he came in to check it out (ts 145).
19 It was not part of the State's case that either complainant made a recent complaint.
20 In or about September 2012, AS complained to KS. On 1 October 2012, AS gave a statement to the police (ts 167). As a result of information given to the police by AS, the police checked a database held by the Department of Child Protection which revealed CN's connection with the appellant. The Department of Child Protection's database showed that, in 2001, there had been a case with respect to CN and the appellant. Eventually, on 15 March 2013, the police spoke to CN and obtained a statement from her (ts 168). The statement was the first time the police became aware of any allegations of sexual misconduct by the appellant with respect to CN.
21 Evidence was adduced by the State, without objection, from Detective Senior Constable Netherwood about inquiries she made at Princess Margaret Hospital about CN. Detective Senior Constable Netherwood testified as follows:
So did you do any investigations in relation to Princess Margaret Hospital's records?---Yes. I attended Princess Margaret Hospital and the Child Protection office that they have there; our child protection unit and I obtained the report that the doctors at the time had seen [CN] had written.
Okay. Now, I don't need to - or want - or should take you through that report - - -?---Mm hmm.
- - - but is there a record of when [CN] attended Princess Margaret Hospital?---Yes. So according to that report it was 29 July 1998.
And who did [CN] speak to at the hospital on that day?---Dr Elizabeth Green.
And without going into any details of the disclosures, who did they relate to? Who was the alleged perpetrator?---[The appellant] (ts 169).
The defence case
22 The defence case at trial was a complete denial of the charges and any allegations of impropriety with respect to the complainants. As defence counsel put it in his opening address, 'These allegations did not occur … they are nothing more than a wicked untruth made up for reasons that we may never be able to understand' (ts 42).
23 At the outset, defence counsel addressed the point that there were two separate complainants who had made similar allegations in respect of the appellant by asserting to the jury that it was 'not impossible' for each complainant's allegations to be false.
24 Defence counsel emphasised the absence of corroborating witnesses or forensic evidence, including medical evidence, to support the allegations.
25 The appellant testified in his defence, denying the allegations. With respect to AS, he recalled an occasion where she was walking around in her bedroom one night, 'basically half asleep'. He said that he woke her up and put her back to bed (ts 201).
26 With respect to CN, the appellant conceded in cross-examination that he first heard about the allegations made by her '15 years ago', but not from the police (ts 211).
Appeal against conviction - ground of appeal
27 The ground of appeal upon which the appellant relies in his appeal against conviction is as follows:
A miscarriage of justice occurred through learned defence counsel erring by:
a. failing to comply with the rule in Browne v Dunn when cross-examining prosecution witnesses resulting in a significant part of the defence case not being put before the jury;
b. failing to object to inadmissible evidence; and
c. failing to seek that the trial be aborted when strongly prejudicial evidence was provided by [JC].
28 I will deal with each particular of the proposed ground of appeal separately, but before doing so it is appropriate to recall the principles with respect to allegations of miscarriages of justice as a result of the conduct of defence counsel. These principles were stated by McLure P (with whom Buss JA and I agreed) in McMahon v The State of Western Australia [2010] WASCA 143 [24] - [27]:
The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).
29 The appellant in his written submissions (which were obviously prepared with the assistance of someone who was legally trained) accepted that this appeal depends upon him establishing a material irregularity which affected the outcome.
Particular (a) - miscarriage of justice by reason of defence counsel's alleged failure to put 'significant' parts of the defence case
30 The parts of the defence case which are said to have been 'significant' and which were not put to the jury are that:
1. CN had made false allegations against the appellant at the behest of JC; and
2. J, CN's stepbrother and AS's brother, had, on occasions, stayed overnight at AS's house. J could have been a conduit for false information about the appellant between CN and AS.
31 Although particular (a), in terms, alleges that a miscarriage of justice arose because defence counsel breached the well-known rule of fairness in Browne v Dunn (1893) 6 R 67 HL, the real point raised by this particular is whether the appellant suffered a miscarriage of justice because of defence counsel's 'failure' to put the 'significant' parts of the defence case to which I have referred.
32 I will deal first with counsel's alleged failure to put, as part of the defence case, that CN had made false allegations against the appellant at the behest of JC.
33 Defence counsel did not put this allegation to either CN or JC in cross-examination. Both CN and JC were cross-examined as to the Family Court proceedings, including their acrimonious nature. At one point in JC's cross-examination she was asked whether, in the course of the Family Court proceedings, she had made an allegation that the appellant's brother had sexually assaulted another of JC's children. JC denied making such an allegation.
34 The appellant in his examination-in-chief testified that JC had made the allegation against his brother (ts 184 - 185). The State objected to the evidence on the basis of relevance. In the absence of the jury, defence counsel submitted the evidence was relevant to 'a motive to make a false complaint' (ts 185). Defence counsel elaborated:
It's the defence['s] position that [CN] is motivated by [JC] to make a false complaint. The defence says that [JC] has form for this sort of behaviour (ts 185).
35 Defence counsel explained what he meant by JC having 'form' for making false complaints by reference to the allegation against the appellant's brother. This is the only evidential basis proffered by defence counsel to ground the allegation that CN was motivated by JC to make a false complaint against the appellant.
36 His Honour noted that defence counsel had failed to put the allegation to CN or JC. His Honour reminded defence counsel of the rule in Browne v Dunn and asked defence counsel to bear it in mind in relation to further questions he had for the appellant and also in his address to the jury (ts 194).
37 Defence counsel did not pursue the point that CN had been motivated by JC to make a false allegation. In an exchange with the trial judge prior to closing addresses, he, in effect, abandoned the argument (ts 231).
38 Nothing to the effect that CN's evidence had been motivated by JC was put in closing addresses by defence counsel. The trial judge made no reference to the matter, although he did direct the jury, in general terms, that it was entitled to consider evidence that CN may have had some motive for giving a false complaint (ts 271).
39 Based on the statements made by defence counsel to the trial judge in the absence of the jury, defence counsel apparently intended to put, as part of the defence case, that CN had made false allegations against the appellant at the behest of JC, but failed to do so. However, in the circumstances of this case, the appellant has not suffered a miscarriage of justice by reason of defence counsel's conduct. This is because, in truth, there was no proper factual basis in the evidence at trial or in the appeal for the proposition that CN had acted at the behest of JC. There was no evidence that JC had made a false allegation in the Family Court proceedings about the appellant's brother. Even if such an allegation had been made, it would have been insufficient, even combined with any hostility JC had toward the appellant, to raise a doubt that JC had encouraged her daughter to make a false complaint and that CN had acted accordingly. No attempt has been made to put before this court anything that shows that JC encouraged CN to make false allegation or that CN had acted on that encouragement. In the end, the proposition is no more than an unsubstantiated assertion.
40 I can deal briefly with the second alleged 'significant' part of the defence case concerning J which was not put before the jury. Nothing to this effect was put to CN or AS. No evidence was presented at trial or before this court which was capable of substantiating this allegation. There was no proper factual basis upon which it could be put that J was the conduit through which false information may have travelled between CN and AS. This theory is not based on fact and is pure speculation. Counsel, quite properly, did not put this as part of the defence case.
41 In my opinion, it is not reasonably arguable that the 'failures' of defence counsel resulted in a miscarriage of justice. Particular (a) has no reasonable prospect of succeeding.
Particular (b) - did the appellant suffer a miscarriage of justice by reason of counsel's failure to object to inadmissible evidence?
42 The allegedly inadmissible evidence the subject of this particular was the evidence given by Detective Senior Constable Netherwood, set out at [21] of these reasons. As I have said, no objection was made by defence counsel to this testimony.
43 The appellant submits that the evidence was not evidence of a recent complaint and was therefore irrelevant. This submission misapprehends the relevance of the evidence.
44 Detective Senior Constable Netherwood's testimony was not led as evidence of recent complaint. As I have already observed, recent complaint was not part of the State's case. In his summing up, the trial judge directed the jury upon the basis that neither CN nor AS had made a recent complaint and gave an unchallenged direction in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. Detective Senior Constable Netherwood's evidence was relevant to show that CN and AS had not concocted their evidence together.
45 Detective Senior Constable Netherwood testified that the police received a report relating to AS on 12 September 2012. On 1 October 2012, AS gave a statement to an investigating officer. She made no mention of CN. Detective Senior Constable Netherwood said that inquiries were then made to the Department of Child Protection concerning the appellant. The database revealed a connection between the appellant and CN. As a result of this, police spoke to CN on 15 March 2013. Further inquiries revealed that CN first disclosed the allegations in 1998. This evidence was consistent with the evidence given by both CN and JC.
46 The evidence of Detective Senior Constable Netherwood, which the appellant now seeks to impugn, concerned this initial disclosure in 1998. Confirmation that CN's complaint against the appellant predated AS's complaints by some 14 years made the possibility that CN and AS had concocted their allegations together less likely.
47 Particular (b) has no reasonable prospect of succeeding.
Particular (c) - was there a miscarriage of justice by reason of defence counsel failing to apply to abort the trial?
48 The appellant submitted that he has suffered a miscarriage of justice because defence counsel did not apply to abort the trial after JC gave evidence that, after she and the appellant separated, a violence restraining order (VRO) was made against him. The appellant asserts that this evidence was 'strongly prejudicial' against him and justified the jury being discharged.
49 The reference in the evidence to the VRO was made in the context of cross-examination concerning the Family Court proceedings between the appellant and JC, including their acrimonious nature. The relevant exchange is as follows:
Now, shortly after you - you separated, [CN] - well, after you separated, [CN] (and her siblings), they lived with you?---Correct.
And [the appellant], he went elsewhere?---Yes.
All right. So the children were all with you?---Yes.
All right. And [the appellant] then issued proceedings in the Family Court, didn't he?---No. I did.
No. [The appellant], he made an application to the - to the Family Court for orders that he spend time with the children?---No. Incorrect.
You - you had the children?---There was a violence restraining order and I went for complete custody. (emphasis added)
KEEN DCJ: No, no, don't - - -?---No.
- - - volunteer information - information.
[DEFENCE COUNSEL]: I - I don't wish to talk about that matter. But - but I'm talking about the Family Court matters, the matters [that] were dealt with in the Family Court. [The appellant] issued those proceedings, didn't he?---No (ts 120 - 121).
50 It may be seen that the answer that JC gave in which she referred to 'a violence restraining order' was unresponsive to defence counsel's question. It may also be seen that the learned trial judge immediately intervened, telling JC not to volunteer such information, and also that defence counsel steered the witness away from further discussion about the order. Defence counsel did not apply then or later to abort the trial, nor did he seek any remedial direction from the trial judge. No direction on the subject of the VRO was given.
51 No further reference was made to the VRO during the State's case. However, as the following exchange shows, the appellant raised the matter himself during his examination-in-chief:
Yes, and where did [JC] go?---I'm not sure.
Who did the children live with when you separated?---[JC].
All of them?---Yes.
What did you do after you separated?---I filed for access straight away with the Family Court. I wanted to see my children as much as possible and I - I proceeded from there. I went and got a lawyer, HMF Legal(?); just Brent Meertens to help me get access to my children.
All right. And how long after you separated did you apply for Family Court orders?---It would have been a good six months because I had a - a violence restraining order put against me.
You don't need to say it but I'm talking about the Family Court matters, how long after you separated till you issued proceedings?---Six months (ts 184).
52 The real question raised by particular (c) is not whether defence counsel should have applied to discharge the jury when JC gave the evidence about the existence of the VRO. Rather, the question is whether, by reason of the evidence concerning the VRO, the appellant has been deprived of a fair trial, or, whether the evidence has given rise to a substantial miscarriage of justice. See Crofts v The Queen (1996) 186 CLR 427.
53 Evidence of the existence of a VRO against the appellant was potentially prejudicial because, as the title of the order suggests, the person subject to it had or may have engaged in actual or threatened violence against the person nominated in the order: see MJS v The State of Western Australia [2011] WASCA 112 [6]. However, any potential prejudice was negated by reason of the following factors:
1. No evidence was given at trial identifying the circumstances that resulted in the making of the VRO. There was nothing to suggest that the order had been made as a result of any conduct by the appellant towards CN.
2. What was known about the circumstances was that it arose in the context of the breakdown of the relationship between the appellant and JC at about the time of their separation (June 1998), many years before CN or AS made complaints to the police.
3. The reference by JC to the VRO was fleeting and, apparently, inadvertent. At no time in the trial did the State seek to take advantage of it. It was not suggested by the State that, because of the VRO, the appellant was a person of bad character.
4. The appellant sought to use the existence of the VRO to his advantage as an example of JC's animosity towards him. The implication of the appellant's testimony concerning the VRO was that he had been prevented from seeing his children by JC taking out the VRO against him, the dog whistle message being that JC had taken out the order to thwart his access to his children.
5. The focus of the trial was upon the truthfulness and reliability of each complainant.
54 Having regard to the combined force of these circumstances, I draw two conclusions. First, a jury acting reasonably would not have regarded the existence of a VRO as a matter of any real significance in the State case. Second, it cannot reasonably be concluded that the evidence of the existence of the VRO gave rise to an unfair trial or to a risk of a substantial miscarriage of justice.
55 Particular (c) has no reasonable prospect of succeeding.
Conclusion - appeal against conviction
56 There is no merit in any of the allegations of miscarriage of justice. The proposed ground of appeal has no reasonable prospect of succeeding. The appeal against conviction should be dismissed.
Appeal against sentence
57 As I said earlier, the sole proposed ground of appeal is that the total effective sentence infringed the first limb of the totality principle.
58 The totality principle comprises two limbs. The first limb is that 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 the circumstances of the case, including those referable to the offender personally. An allegation that the totality principle has been infringed is an allegation of implied error. It is therefore necessary for the appellant to demonstrate that the total effective sentence was so unreasonable or unjust that this court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 504 - 505 and Wilson v The State of Western Australia [2010] WASCA 82 [2]. This court cannot intervene merely because, had it sentenced the appellant at first instance, it might have imposed a different sentence.
59 The offences for which the appellant was convicted were subject to substantial maximum penalties. In the case of counts 2, 3 and 5, the maximum penalty for each offence is 10 years' imprisonment, in the case of count 6, the maximum penalty is 14 years' imprisonment, and in the case of count 4, the maximum penalty is 20 years' imprisonment.
60 In his sentencing remarks, the sentencing judge, correctly in my respectful view, pointed to a number of aggravating factors. The offences constituted a gross breach of trust. CN was his stepdaughter; AS his de facto stepdaughter. Instead of protecting their welfare, as he was bound to do, he chose to sexually abuse them. Both CN and AS were very young. CN was aged between 6 and 8 years; AS was only 13. His Honour found that the appellant, to some extent, groomed each victim. In the case of CN, some of the offending was accompanied by threats and the charges were representative of ongoing sexual abuse. Of course, when considering the appellant's total criminality, it is relevant that he offended against two victims. The offending was not some isolated aberration. It is clear that the appellant harbours a sexual interest in young children. It would appear that he poses a risk to young girls with whom he has a fatherlike relationship.
61 His Honour had a victim impact statement from AS. It is unnecessary to set out in detail the contents of that document. It is sufficient to say that the offending has had a serious negative effect upon AS, which is likely to continue in the future.
62 As his Honour observed in his sentencing remarks, there was little in the way of mitigation (ts 318). The appellant did not have the benefit of a plea of guilty. His Honour found that he has neither remorse nor victim empathy. He has a stance of denial. The appellant was aged between 24 and 26 years of age when he offended against CN and about 38 or 39 years of age when he offended against AS. His age was not a mitigating factor.
63 The appellant has an extensive prior record of convictions. His traffic record is particularly bad and features multiple convictions for driving under fine suspension. In addition, there are convictions recorded for breach of VROs, giving false personal details, minor drug offences, burglary, fraud, stealing and common assault. There is no mitigation to be found upon the basis of a prior good record.
64 The appellant has had ongoing problems with illicit substances since he was 17 years old. When he was 18 years old, he was abducted, tortured and sexually interfered with in a serious way. His Honour expressed the opinion that the appellant probably required further counselling to deal with the effects of this incident. The appellant's physical health was described by his Honour as being 'not that good', but there is nothing to indicate that the conditions from which the appellant suffers cannot properly be treated in prison.
65 As this court has said on countless occasions, the dominant sentencing considerations in cases of child sexual abuse are general and personal deterrence. Because of the emphasis upon deterrence, matters personal to an offender are given less weight.
66 In determining whether a total sentence infringes the first limb of the totality principle in a particular case, it is necessary to refer to other broadly similar cases. The outcomes in other cases are a yardstick against which a particular case may be compared in order to ensure broad consistency in sentencing. However, in the end, each case must be decided on its own facts and circumstances.
67 The appellant referred to three cases in support of his argument that the first limb of the totality principle had been infringed, namely: Bropho v The State of Western Australia [No 2] [2009] WASCA 94; RNN v The State of Western Australia [2010] WASCA 26 and HFM v The State of Western Australia [2012] WASCA 217. These cases do not materially assist the appellant. Each of the cases cited involve offenders much older than the appellant (Bropho, 78 years of age; RNN, 70 years of age; and HFM, 75 years of age). In HFM and RNN, the appellant pleaded guilty.
68 Having regard to cases which have features similar to the present case such as Bosworth v The Queen [2004] WASCA 43; VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; PDS v The State of Western Australia [2006] WASCA 20; Truscott v The State of Western Australia [2007] WASCA 62; LWJR v The State of Western Australia [2009] WASCA 200 and RMS v The State of Western Australia [2010] WASCA 76, and the cases cited therein, it cannot reasonably be said that the total effective sentence in this case was not broadly consistent with comparable cases.
69 In my opinion, it is not reasonably arguable that the total effective sentence of 7 years' imprisonment infringed the first limb of the totality principle. Having regard to the overall criminality involved in all of the offences and all of the relevant circumstances, including the appellant's personal circumstances, the total effective sentence represented a proper exercise of his Honour's sentencing discretion. The outcome is neither unjust nor unreasonable. I would not infer error. In these circumstances, this court cannot interfere with the sentence imposed.
Conclusion - the appeal against sentence
70 The ground of appeal alleging an infringement of the totality principle has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal against sentence should be dismissed.
Orders
71 In each appeal I would make the following orders:
1. Leave to appeal is refused.
2. The appeal is dismissed.
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