DRH v The State of Western Australia - [2021] WASCA 97

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DRH -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 97
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   26 MARCH 2021
DELIVERED          :   2 JUNE 2021
FILE NO/S:   CACR 25 of 2020
CACR 28 of 2020

BETWEEN: DRH
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEMONIS DCJ
File Number            :   IND 90 of 2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of one count of sexual offending against a child between the age of 13 and 16 years - Appellant acquitted after trial of other counts of sexual offending against the child - Whether the verdict of guilty was relevantly inconsistent with the verdicts of acquittal.

Criminal law - Appeal against sentence - Appellant sentenced to 3 years' immediate imprisonment - Whether it was reasonably open to the trial judge to be satisfied beyond reasonable doubt that the offence of which the appellant was convicted was not an isolated incident - Whether the sentence imposed was manifestly excessive

Legislation:

Criminal Code (WA), s 321(3)

Result:

CACR 25 of 2020
Leave to appeal refused
Appeal dismissed

CACR 28 of 2020
Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Young & Young
Respondent	:	Director of Public Prosecutions (WA)

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

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Deering v The State of Western Australia [2007] WASCA 212
Gleeson v The State of Western Australia [2019] WASCA 100
JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124
KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367
KND v The State of Western Australia [2017] WASCA 36
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
McAlpine v The State of Western Australia [2018] WASCA 195
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
NCH v The State of Western Australia [2013] WASCA 29
NTH v The State of Western Australia [2020] WASCA 22
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
PES v The State of Western Australia [2014] WASCA 96
R v Isaacs (1997) 41 NSWLR 374
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Fyffe [2018] WASCA 173
The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228

JUDGMENT OF THE COURT:

The appellant has appealed against conviction and sentence.
The appellant was charged on indictment with seven counts of sexual offending against a boy, BM, who was at all material times aged 13 or 14.
Count 1 alleged, in essence, that on an unknown date between 1 February 1997 and 30 September 1998, at Coogee, the appellant indecently dealt with BM, a child of or over the age of 13 years and under the age of 16 years, by licking BM's bottom, contrary to s 321(4) of the Criminal Code (WA) (the Code).
Count 2 alleged, in essence, that on another unknown date between 1 February 1997 and 30 September 1998, at Coogee, the appellant sexually penetrated BM, a child of or over the age of 13 years and under the age of 16 years, by engaging in fellatio with BM, contrary to s 321(2) of the Code.
Count 3 alleged, in essence, that on another unknown date between 1 February 1997 and 30 September 1998, at Coogee, the appellant sexually penetrated BM, a child of or over the age of 13 years and under the age of 16 years, by engaging in fellatio with BM, contrary to s 321(2) of the Code.
Count 4 alleged, in essence, that on another unknown date between 1 February 1997 and 30 September 1998, at Coogee, the appellant sexually penetrated BM, a child of or over the age of 13 years and under the age of 16 years, by introducing his penis into BM's mouth, contrary to s 321(2) of the Code.
Count 5 alleged, in essence, that on another unknown date between 1 February 1997 and 30 September 1998, at Coogee, the appellant encouraged BM, a child of or over the age of 13 years and under the age of 16 years, to engage in sexual behaviour, contrary to s 321(3) of the Code.
Count 6 alleged, in essence, that on an unknown date between 1 December 1997 and 1 February 1998, at Dunsborough, the appellant procured BM, a child of or over the age of 13 years and under the age of 16 years, to do an indecent act, contrary to s 321(5) of the Code.
Count 7 alleged, in essence, that on another unknown date between 1 December 1997 and 1 February 1998, at Dunsborough, the appellant indecently dealt with BM, a child of or over the age of 13 years and under the age of 16 years, by touching BM's penis, contrary to s 321(4) of the Code.
The appellant pleaded not guilty. He was tried in the District Court before Lemonis DCJ and a jury. His Honour directed acquittals with respect to counts 3, 4 and 6. The jury acquitted the appellant on counts 1, 2 and 7 and convicted him on count 5.
On 28 January 2020, the trial judge sentenced the appellant to 3 years' immediate imprisonment on count 5. The sentence was backdated to 13 January 2020. A parole eligibility order was made.
Initially, the appellant appealed against conviction on two grounds. At the hearing of the appeal, counsel for the appellant abandoned ground 1. The remaining ground alleges that the verdict of guilty on count 5 was 'inconsistent with the verdicts of not guilty that were entered when there was no evidence to distinguish [count 5] and support a finding beyond reasonable doubt over and above that concerning the other counts'.
The appellant relies upon two grounds in his appeal against sentence. Ground 1 alleges that it was not reasonably open to the trial judge 'to be satisfied to the requisite standard that [the offence charged on count 5] was other than an isolated incident'. Ground 2 alleges that the length of the sentence imposed on count 5 was manifestly excessive.
We would refuse leave to appeal in the conviction appeal and in the sentence appeal. Both the conviction appeal and the sentence appeal are without merit and must be dismissed. Our reasons are as follows.

Conviction appeal: overview of the State's case at trial

The seven counts on the indictment allegedly occurred on various unknown dates between 1 February 1997 and 30 September 1998.
At the time of the alleged offending the appellant was aged between 35 and 37 and BM was aged 13 or 14.
In 1996, BM's family comprised his mother, BM and five younger siblings. BM attended grade 7 at a primary school. At the time, the appellant was a teacher at the school. During 1996 the appellant was BM's class teacher. The relationship between the appellant and BM was that of teacher and student. BM completed year 7 without incident.
At the beginning of 1997, BM entered year 8 at a secondary school. At the beginning of 1997, the appellant began meeting with BM. BM would visit the appellant's house regularly and would be taken on outings. BM usually visited the appellant's house once or twice a fortnight. Occasionally he would spend the night at the appellant's house. At the time the appellant was single and lived alone. Sometimes the appellant would rub oil on BM and they would engage in physical exercise together at the appellant's home. The appellant would speak to BM about nudity and other matters and give him cigarettes and alcohol.
At the end of 1997, during the school holidays, the appellant took BM on holiday with him to Dunsborough. They stayed together in a caravan/beach shack for about three or four days.
After the Dunsborough trip, BM did not visit the appellant for some time. However, throughout 1998 BM met with the appellant occasionally, but less frequently than previously. The last time they met was in about September 1998.
In his opening address, the prosecutor outlined the State's case in relation to the counts on the indictment, as follows:
(a)As to count 1, BM was at the appellant's house. They were playing 'dare games' with each other. At the end of a 'dare game', the appellant 'caressed and licked [BM's] bottom, his bum or anus, on the inside of his bottom cheeks' (ts 223).
(b)As to counts 2 and 3, there were occasions on which BM would sleep at the appellant's house. They would sometimes be in bed together and they would touch and fondle each other. Count 2 and 3 involved separate incidents. On each occasion, BM and the appellant were in bed together. The appellant licked and sucked BM's penis (ts 224).
(c)As to count 4, there was an occasion when BM sucked the appellant's penis.
(d)As to count 5, there was an occasion when the appellant was 'naked, on all fours, bent over on all fours and was trying to encourage [BM] to anally penetrate him' (ts 224).
(e)As to count 6 and 7, this offending occurred during the Dunsborough trip at the end of 1997. Count 6 related to an incident when the appellant and BM were playing 'dare games'. The appellant 'dared' BM 'to put a vacuum [cleaner] on his penis' (ts 224). BM refused and, instead, the appellant told BM to masturbate. The appellant watched BM while BM masturbated. Count 7 related to an incident when BM awoke one morning and found the appellant's hand on BM's penis.
In August 2017, BM contacted the police and reported the alleged offending.

Conviction appeal: overview of the appellant's case at trial

The appellant gave evidence in his own defence at the trial.
The defence case was that the appellant had never touched BM in a sexual manner and that none of the alleged offending had occurred.

Conviction appeal: the chronology of the charged offences

The evidence at trial was to the effect that during the period alleged in counts 1, 2, 3, 4 and 5 (that is, between 1 February 1997 and 30 September 1998), the appellant lived before mid 1997 at an address in Coogee (the First Coogee Address) and after mid 1997 at another address in Coogee (the Second Coogee Address).
BM gave evidence that all of the sexual offending charged in counts 1, 2, 3, 4 and 5 occurred at the Second Coogee Address.
The offending charged in count 6 and 7 occurred in Dunsborough when the appellant and BM spent three or four days together at the appellant's caravan/beach shack.
A central issue at the trial was the date of the Dunsborough trip; in particular, whether the trip occurred before or after the appellant moved from the First Coogee Address to the Second Coogee Address.

Conviction appeal: the directed acquittals

As we have mentioned, the trial judge directed acquittals with respect to counts 3, 4 and 6.
As to counts 2, 3 and 4, BM gave evidence that the appellant had performed fellatio on him on two occasions and he had performed fellatio on the appellant once. Those were the allegations embodied in counts 2, 3 and 4. However, later in his evidence, BM said that he had performed fellatio on the appellant on two occasions and the appellant had performed fellatio on him once. That discrepancy in BM's evidence resulted in a no case to answer submission in relation to each of counts 2, 3 and 4. The submission was successful in respect of counts 3 and 4, but not count 2.
As to count 6 and as we have mentioned, the prosecutor said in his opening address that during a 'dare' game at Dunsborough the appellant had 'dared' BM to put a vacuum cleaner on his penis. When BM refused, the appellant told him to masturbate instead.
BM gave evidence to the effect that, fearing he would suffer injury, he decided himself not to use the vacuum cleaner, as suggested by the appellant, but instead to masturbate himself. BM said that his decision to masturbate himself was made without a specific further request to that effect from the appellant. According to BM, the appellant's response to BM's decision to masturbate himself was 'like, ''fine''' (ts 314).
His Honour declined the prosecutor's application to amend the State's case in relation to count 6. His Honour directed an acquittal on that count.

Conviction appeal: the appellant's submissions

Counsel for the appellant submitted, in effect, that the verdict of guilty on count 5 was unreasonable or could not be supported having regard to the evidence. In particular, it was submitted that the verdict of guilty on count 5 was inconsistent with the verdicts of not guilty on counts 1, 2 and 7 because there was no evidence to distinguish count 5 from counts 1, 2 and 7 and no evidence that was more probative of the appellant's guilt on count 5 than the evidence of his guilt on counts 1, 2 and 7.
In his oral submissions, counsel for the appellant asserted that there was no proper basis on which the verdict of guilty on count 5 could be reconciled with the verdicts of not guilty on counts 1, 2 and 7.

Conviction appeal: the State's submissions

Counsel for the State submitted that it was logically and reasonably open to the jury to acquit on counts 1, 2 and 7 and to convict on count 5.
Counsel emphasised that it is well established that a verdict of not guilty on some counts does not necessarily reflect a view by the jury that the complainant was untruthful or unreliable.
At the trial, defence counsel (who was not counsel for the appellant in the appeal) argued that the timing of the Dunsborough trip was crucial. Defence counsel asserted in her closing address to the jury that the issue of timing was 'a fundamental problem' with the State's case.
The trial judge warned the jury in relation to counts 1 and 2 that if the jury was not satisfied that the events the subject of those counts occurred before the Dunsborough trip, that was a matter the jury must take into account when assessing the honesty, accuracy and reliability of BM's evidence that the events the subject of counts 1 and 2 had occurred.
Although his Honour did not give that warning with respect to count 7, his Honour did highlight in his summing up the difficulty with the evidence as to the timing of the Dunsborough trip during which the events the subject of count 7 were alleged to have occurred.
Counsel for the State submitted that the issue of timing was not relevant to count 5. Despite the position of count 5 on the indictment, that charged offence was chronologically the last of the allegations. Count 5 allegedly occurred at the Second Coogee Address at about the time of the Western Australian Football League or the Australian Football League grand final, after BM had been ejected from his home, in the latter part of 1998. Both the appellant and BM gave evidence about that occasion when BM stayed with the appellant at the Second Coogee Address. Both of them said that it was the last time they saw one another. Accordingly, on the State's case and the appellant's case at trial, the occasion on which count 5 was allegedly committed occurred a long time after the Dunsborough trip.

Conviction appeal: its merits

In MacKenzie v The Queen,[1] Gaudron, Gummow and Kirby JJ explained the legal principles with respect to inconsistent verdicts. See also MFA v The Queen.[2]
[1] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 365 ‑ 368.
[2] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [33] ‑ [36].
In Osland v The Queen,[3] McHugh J enunciated the following propositions:
(a)When an appellate court sets aside a jury's verdict because it is inconsistent with a verdict of acquittal, the court usually does so for one of two reasons.
(b)First, the verdict of acquittal on one count may necessarily demonstrate that the jury did not accept evidence which it had to accept before it could arrive at the verdict of guilty on another count.
(c)Secondly, it may follow that, in returning a verdict of acquittal on one count, the jury must have accepted evidence that required it to acquit on the count on which it convicted. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it must have misapplied or misunderstood the trial judge's directions of law.
[3] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [116].
Where an appellant who has been convicted alleges that the jury's verdicts are inconsistent, the appellate court must consider the evidence, the issues at trial and the trial judge's directions to the jury in deciding whether the jury's verdict of guilty on one count is relevantly inconsistent with a verdict of acquittal on another count, and the inconsistency requires the verdict of guilty on which the conviction is based to be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. See s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
In the present case, the appellant alleges, in essence, that the jury's verdicts on counts 1, 2 and 7 were factually inconsistent and incompatible with the verdict on count 5. It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent or incompatible in the relevant sense. See NTH v The State of Western Australia.[4] The critical issue is whether it was logically and reasonably open to the jury to convict on count 5 despite having acquitted on counts 1, 2 and 7.
[4] NTH v The State of Western Australia [2020] WASCA 22 [60].
In the present case, the trial judge gave these directions to the jury in his summing up:
(a)The jury could not convict the appellant on any charged offence unless on the whole of the evidence, and subject to his Honour's other directions, the jury was satisfied beyond reasonable doubt that BM's evidence in relation to that charged offence was honest, accurate and reliable (ts 765 ‑ 766).
(b)The jury was entitled to accept the whole of a witness' evidence or to reject the whole of his or her evidence. Also, the jury was entitled to accept part of a witness' evidence and to reject other parts of his or her evidence (ts 765).
(c)The jury must deal with and make a decision on each count on the indictment separately and must consider in relation to each count only the evidence that was relevant to that count (ts 768 ‑ 769).
(d)A Liberato direction (ts 770 ‑ 771).
(e)Directions in relation to circumstantial evidence and the drawing of inferences (ts 771 ‑ 773).
(f)Directions concerning relationship evidence and evidence of uncharged acts or conduct (ts 807 ‑ 812).
(g)A Longman direction (ts 817 ‑ 822).
As we have mentioned, a central issue at trial was the date of the Dunsborough trip. The evidence at trial was to the effect that during the period alleged in counts 1, 2, 3, 4 and 5 (that is, between 1 February 1997 and 30 September 1998), the appellant lived before mid 1997 at the First Coogee Address and after mid 1997 at the Second Coogee Address. BM gave evidence that all of the sexual offending charged in counts 1, 2, 3, 4 and 5 occurred at the Second Coogee Address. The offending charged in counts 6 and 7 occurred in Dunsborough when the appellant and BM spent three or four days together at the appellant's caravan/beach shack. Despite the position of count 5 on the indictment, that charged offence was chronologically the last of the allegations. The occasion on which count 5 was allegedly committed was, on the evidence of both the appellant and BM, the last occasion when BM stayed with the appellant at the Second Coogee Address. Both of them said that it was the last time they saw one another.
Defence counsel, in her closing address, described the issue of timing as 'a fundamental problem' with the State's case (ts 45, 48, 54). Defence counsel asserted that 'the timeline doesn’t work' (ts 47). However, defence counsel acknowledged that the issue of timing did not directly affect count 5 (ts 45, 48, 51 ‑ 53, 54).

Before his Honour began his summing up, the prosecutor and defence counsel made submissions, in the absence of the jury, as to how the issue of timing in relation to the Dunsborough trip should be dealt with in his Honour's charge (ts 738 ‑ 761). Defence counsel submitted that the issue should be addressed specifically in relation to counts 1, 2 and 7 (ts 758 ‑ 759), although counsel accepted that the issue was less acute with respect to count 7 and the direction on count 7 did not need to be the same as the direction on counts 1 and 2 (ts 759). However, defence counsel conceded that 'it doesn’t apply to [count] 5' (ts 758).
During his summing up to the jury, the trial judge outlined the evidence as to the timing of the Dunsborough trip (ts 779 ‑ 781) and referred, in summarising the defence case on counts 1, 2 and 7, to the issue of timing (ts 788 ‑ 790). His Honour expressly warned the jury that if they were not satisfied that the events the subject of counts 1 or 2 occurred before the Dunsborough trip, they must take that into account in assessing the honesty, accuracy and reliability of BM's evidence concerning counts 1 and 2 (ts 776).
We are of the opinion, for the following reasons, that it was logically and reasonably open to the jury to convict on count 5 despite having acquitted on counts 1, 2 and 7.
First, although counts 1 and 2 and, to a lesser extent, count 7 were affected by the issue of the timing of the Dunsborough trip, count 5 was not affected by that issue. Timing and chronology was a central issue for the defence at trial in relation to counts 1 and 2 and, to a lesser extent, count 7, but was not an issue in relation to count 5.
Secondly, where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others. Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted. See NCH v The State of Western Australia;[5] KND v The State of Western Australia.[6]
[5] NCH v The State of Western Australia [2013] WASCA 29 [130].
[6] KND v The State of Western Australia [2017] WASCA 36 [38].
Thirdly, the jury, by its verdict of guilty on count 5, must have accepted that BM's evidence on that count was honest, accurate and reliable. The jury's verdicts of not guilty on counts 1, 2 and 7 do not necessarily indicate that the jury had any doubt as to BM's honesty or generally found him to be inaccurate or unreliable in his evidence.
Fourthly, the differences between the verdict on count 5 and the verdicts on counts 1, 2 and 7 are reasonably capable of explanation on the basis that, having regard to the significance at trial of the timing and chronology relating to counts 1, 2 and 7 (but not count 5), the jury was especially cautious and conscientious in reviewing the evidence on counts 1, 2 and 7 and discharging its heavy civic responsibility. The verdicts of acquittal on counts 1, 2 and 7 can readily be reconciled with the verdict of conviction on count 5 by reference to the defence case at trial, which emphasised grounds for doubt as to the timing of the events the subject of counts 1, 2 and 7, but accepted that no similar point arose in relation to count 5.
We are satisfied, having reviewed the trial record, that the jury's decision to acquit on counts 1, 2 and 7 did not relevantly undermine BM's truthfulness, accuracy and reliability in relation to count 5, and does not indicate that the verdict of guilty on count 5 is inconsistent or incompatible, in the relevant sense, with the other verdicts. The differences in the verdicts are not illogical or unreasonable. They are not an affront to common sense.
The ground in the conviction appeal is without merit.

Conviction appeal: conclusion

The ground in the conviction appeal did not have a reasonable prospect of success. Leave to appeal should be refused. The conviction appeal must be dismissed.

Sentence appeal: the trial judge's sentencing remarks and the appellant's personal circumstances

The trial judge found in his sentencing remarks that the facts and circumstances of the offending on count 5 were as follows:
(a)BM went to stay at the appellant's house because he had been kicked out of his home;
(b)BM telephoned the appellant and asked the appellant to collect him, which the appellant did, and BM then stayed at the appellant's house;
(c)the conduct the subject of count 5 occurred while BM was staying at the appellant's house;
(d)BM and the appellant were naked in the bedroom which was being used by BM while he was at the appellant's house;
(e)BM and the appellant had been drinking alcohol;
(f)the appellant was bent over the bed in front of BM, being on his arms and knees;
(g)BM went to penetrate the appellant's anus and his erect penis touched the appellant's anus;
(h)however, BM could not achieve penetration and he masturbated instead;
(i)BM masturbated on the appellant's 'back and arse' and then ejaculated on the appellant's back;
(j)BM gave evidence at the trial that he was disgusted at himself in having done so;
(k)BM spat on the appellant's back because he felt disgusted; and
(l)BM could not recall the appellant saying anything.
His Honour decided that the only reasonable inference that could arise from both the appellant and BM having been naked and from the position of their bodies was that the appellant encouraged BM to penetrate the appellant's anus.
The trial judge gave consideration to whether the appellant had engaged in sexual activity with BM, before the commission of count 5, such that BM had become accepting of it.
At the trial, the State led evidence from BM of other sexual conduct between the appellant and BM. His Honour directed the jury in relation to the use of that evidence (ts 811).
Defence counsel submitted that his Honour could not be satisfied beyond reasonable doubt that the appellant had engaged in any sexual activity with BM before the commission of count 5. Defence counsel also submitted that his Honour should find that the appellant's offending on count 5 was isolated and an aberration. Defence counsel based those submissions on the failure of the jury to be satisfied beyond reasonable doubt that the appellant had committed the offences charged in counts 1, 2 and 7, all of which allegedly occurred before the conduct the subject of count 5. His Honour rejected defence counsel's submissions.
The trial judge said that the jury's failure to be satisfied beyond reasonable doubt in relation to the offences charged in counts 1, 2 and 7 did not preclude him from finding beyond reasonable doubt that the appellant had engaged in sexual behaviour with BM before the conduct the subject of count 5. A finding to that effect would not be inconsistent with the verdicts of not guilty because those verdicts were directed to the specific occasions that were the subject of counts 1, 2 and 7. The fact that the State did not prove to the criminal standard that the specific acts the subject of counts 1, 2 and 7 had occurred did not preclude a finding by his Honour to the criminal standard that other sexual behaviour had occurred.
His Honour observed that, in evaluating whether he could be satisfied beyond reasonable doubt that the appellant had engaged in sexual activity with BM before the commission of count 5, the following aspects of BM's evidence in relation to count 5 were important:
(a)the circumstances of the event itself;
(b)BM could not recall the appellant saying anything to him in the course of the event;
(c)when BM was unable to penetrate the appellant's anus with his penis, BM masturbated to ejaculation; and
(d)BM was disgusted at himself in having done so.
The trial judge stated that it was 'entirely implausible that an event of this nature would have occurred without there having been sexual behaviour between [the appellant and BM] prior to the occasion the subject of count 5' (ts 878). His Honour said that was especially the case given that '[BM] proceeded in the manner he did notwithstanding that he did not recall [the appellant] saying anything … and, further, after proceeding to place his penis [against the appellant's] anus he then proceeded to masturbate and ejaculate' (ts 878). That conduct was, in his Honour's view, consistent with the appellant having engaged in sexual behaviour with BM before the commission of count 5.
His Honour, in assessing BM's evidence in relation to whether the appellant had engaged in sexual activity with BM before the commission of count 5, had regard to a pretext telephone call made by BM to the appellant. The call was made on 26 February 2018 and was arranged by the police. At the trial, the prosecutor tendered in evidence an electronic recording and typewritten transcript of the call.
When the pretext call was made, BM and the appellant had not had any contact for about 19 or 20 years. At the trial, the prosecutor relied upon the conversation in the pretext call as relationship evidence. The conversation did not include any specific admissions by the appellant in relation to any of the counts on the indictment. However, on the State's case, the conversation included a general admission by the appellant to the effect that he had engaged in acts of a sexual nature with BM when BM was a child. His Honour directed the jury accordingly (ts 810 ‑ 812).
The transcript of the pretext call reads, relevantly:
[BM]:  …I've been tryin' to look for you, mate.
[THE APPELLANT]:     Yeah.
[BM]:  With, um, you ever thought about past or     anything? I've been thinkin' about the past     lately and ---
[THE APPELLANT]:     Have you?

[BM]:   Y-, yeah. I just want to know if you feel guilty      or got any remorse or anything like that.
[THE APPELLANT]:     Oh - - -
[BM]:   It’s had a, it’s had a big impact on my life …
[THE APPELLANT]:     Really?
[BM]:   Yeah.
…
[BM]:   Do you have remorse or any guilt?
[THE APPELLANT]:     Do you want to catch up and have a chat?
…
[BM]:   Yeah. I would. It’s just I’d like to, an ap-,    apology or something, you know? You            wouldn’t, I don’t think you realise what a f-,         impact it has had on my life.
[THE APPELLANT]     Really?
[BM]:  Yeah.
[THE APPELLANT]:     Oh, well, I am sorry, mate. I am sorry.
[BM]:   Yeah.
…
[THE APPELLANT]:     Yeah. …, I thought the world of you. I really         did, you know? I, you know, and yeah, look,                   mate, I hated it.
[BM]:   Well, why did you, I just don’t understand why you’d do that to a, a young kid, you        know?
[THE APPELLANT]:     Well, I don’t know, mate. I don’t know.
…
[THE APPELLANT]:     It’s fucked up.
[BM]:   Yeah.
[THE APPELLANT]:     … I'd, I'd love to catch up, mate. And, you know, clear the air.
…
[BM]:   'Cause I just wanna fuckin’, um, just put it behind me, you know, and move on in my life. Like, we should’ve done it year-, - - -
[THE APPELLANT]:     That’s [indistinct].
[BM]:   I should’ve done it years ago, you know?     But ‑‑‑
[THE APPELLANT]:     Absolutely, mate. I - - -
[BM]:   Fuckin' time flies.
[THE APPELLANT]:     [indistinct] do everything I can, I, and        honestly, mate, this is genuine. I'd love to do     everything I can to, to make it right.
[BM]:   Yeah. I appreciate that.
[THE APPELLANT]      … And that's really, that really is a hundred         percent genuine, mate.
[BM]:   Yeah.
[THE APPELLANT]:     Yep. I mean … you know, you know how I          felt about you, mate. I, I thought you were   fantastic. You were a great kid …
[BM]:   … you thought I was a fantastic kid. Why the        fuck did, doin' the things we used to do or   whatever. Smoking, drinking, fuckin' playing   with each other.
[THE APPELLANT]:     Yeah. I know, I know. Um, look, … how do         you want to do this? Do you want to, do you   want to catch up?
…
[BM]:   Well, just give us a call back when you’re gonna come to Perth or maybe I’ll call you      back.
[THE APPELLANT]:     Oh, look, mate …. I'll come up as soon as I can. Um, oh, might even be this weekend.
[BM]:   Yep.
…
[THE APPELLANT]:     And, you know, if you want to move on then,        you know, I’m, I'm happy to do whatever,   whatever it takes to help you do that.
[BM]:   Yeah. Well, it’s fucked, sort of fucked my sort      of life up a little bit, you know? Like,   fuckin' ‑‑‑
[THE APPELLANT]:     Oh, you're really, sorry, mate.
…
[BM]:   It’s, it's, it's had a big impact on my life. More       than you probably could imagine, mate. Um,                    just confused me sexually. But, obviously - - -
[THE APPELLANT]:     Yep.
[BM]:   That was my first sexual encounter.
[THE APPELLANT]:     Yep.
…
[BM]:   … I'm going to counselling at the moment. And the lady said, um - - -
[THE APPELLANT]:     Yep.
[BM]:   Maybe I sh-, should try and get in-, a hold of         you or contact you for just some closure, you   know?
[THE APPELLANT]:     Yeah, yeah. And I appreciate it. … I'm glad          you did. And it’s … good to hear from you.

The trial judge was satisfied that the only reasonable inference from the pretext call was that the appellant had impliedly admitted having engaged in acts of a sexual nature with BM when BM was a young boy. Also, his Honour was satisfied that the implied admission was true. His Honour rejected the appellant's evidence at the trial that he did not understand BM to be saying in the pretext call that the appellant had engaged in sexual acts with him. His Honour said that the appellant should have been expected to have denied in the pretext call having engaged in acts of a sexual nature with BM if that was untrue. Further, his Honour was satisfied that the pretext call did not convey an implied admission by the appellant that was limited to only one incident of sexual conduct, being the conduct the subject of count 5.
Accordingly, his Honour was satisfied beyond reasonable doubt that, before the commission of count 5, the appellant had engaged in acts of a sexual nature with BM such as to normalise behaviour of that kind. The appellant had facilitated BM's drinking of alcohol and smoking of cannabis so that BM would be more accommodating towards the appellant.
Specifically, the trial judge was satisfied beyond reasonable doubt, based on BM's evidence, that for a significant period of time before the commission of count 5:
(a)the appellant and BM would play sexual games in which they would often be naked;
(b)the appellant and BM would, on occasions, share the same bed together and would touch each other's penis;
(c)the appellant would massage BM's body with oil; and
(d)the appellant would permit BM to drink alcohol and smoke cannabis at the appellant's house.
His Honour observed that the appellant was not to be sentenced for having engaged in other acts of a sexual nature with BM. However, his Honour considered that the sexual activity which occurred between them before the appellant committed count 5 was an aggravating factor in relation to the offending. It demonstrated that count 5 was not an isolated occasion. Also, the previous sexual activity contributed to BM's willingness to engage in the conduct the subject of count 5.
At the time of sentencing the appellant was aged 58. He is single. The appellant is generally in good health.
The appellant and a business partner operate a holiday homes cleaning business in rural Western Australia.
The information before his Honour included a number of written references as to the appellant's character. The authors of the references said that the appellant was a kind, caring and supporting person.
The information before his Honour also included a victim impact statement from BM. His Honour was satisfied that the appellant's offending, by its very nature, had a detrimental and enduring impact on BM.
His Honour noted that there was no evidence that the appellant was remorseful or that he had at any time taken steps towards rehabilitation. However, his Honour took into account that the appellant did not have any relevant criminal history.
The trial judge was of the view that the appellant's offending against BM was serious. His Honour noted that the age difference between the appellant and BM was about 22 years. Although the appellant was not in a position of trust or authority with respect to BM when count 5 was committed, BM was vulnerable because he had come to the appellant's house to live for a short period as a result of BM's personal circumstances at home. It was apparent that BM trusted the appellant. That trust arose originally out of the appellant having been BM's teacher before the sexual activity commenced, although the appellant was no longer BM's teacher by the time the appellant had moved to the Second Coogee Address. The trust was also shown by BM contacting the appellant when BM was kicked out of home.
His Honour was not satisfied that there was any element of coercive or forceful behaviour by the appellant towards BM. His Honour was of the view that the appellant had groomed BM and that the sexual activity before the commission of count 5 resulted in BM having become accepting of sexual acts between them.
The trial judge concluded that the seriousness of the appellant's offending was such that a sentence of imprisonment was the only appropriate sentencing option. His Honour was positively satisfied that it was not appropriate to suspend or conditionally suspend the term of imprisonment.

Sentence appeal: the appellant's submissions

As we have mentioned, ground 1 of the sentence appeal alleges that it was not reasonably open to the trial judge 'to be satisfied to the requisite standard that [the offence charged on count 5] was other than an isolated incident'. Originally, there were four particulars of ground 1. Particular 1.1 asserted that there were directed acquittals on three counts. Particular 1.2 asserted that the jury returned verdicts of not guilty on three other counts. Particular 1.3 asserted that the pretext call was equivocal on the point. Particular 1.4 asserted that '[a]ny evidence capable of otherwise being classified as grooming needed to be viewed [in light of]' the earlier particulars. Counsel for the appellant abandoned particular 1.3 in the course of his oral submissions at the hearing of the appeal.
Counsel for the appellant claimed in his oral submissions that his Honour found that the pretext call related to count 5. When challenged by the court in relation to that submission counsel accepted that the submission was without foundation. The submission was contrary to the finding his Honour actually made about the pretext call. Counsel withdrew the submission and abandoned particular 1.3. The particular should not have been included as part of the appellant's case and the submission should not have been made.
Counsel then reiterated, based on the remaining particulars, that, in the circumstances of the present case, it was not open to the trial judge to be satisfied beyond reasonable doubt that the appellant had engaged in sexual activity with BM before the commission of count 5. Counsel contended that the evidence had to be examined 'through the prism of the acquittals for [counts 1, 2 and 7] and the directed acquittals [on counts 3, 4 and 6]'. According to counsel, when viewed through that 'prism', the evidence was insufficient to support the finding his Honour made.
As we have mentioned, ground 2 of the sentence appeal alleges that the length of the sentence imposed on count 5 was manifestly excessive. At the hearing of the appeal, counsel for the appellant accepted that it was 'difficult to see, having regard to all [relevant sentencing] factors, how a sentence of 3 years' [immediate imprisonment] could be seen to be unreasonable or plainly unjust'. Counsel told the court that he relied upon the appellant's written submissions in respect of ground 2. The particulars of ground 2 asserted that the length of the sentence of imprisonment was manifestly excessive having regard to the appellant's antecedents, the criminality involved in count 5 and the sentences imposed in broadly comparable cases. The appellant's written submissions on ground 2 did not engage adequately with the facts and circumstances of the offending or his Honour's findings of fact.

Sentence appeal: the State's submissions

As to ground 1, counsel for the State submitted that it was open to the trial judge to make the impugned finding beyond reasonable doubt and to sentence the appellant on that basis.
As to ground 2, counsel submitted that having regard to the maximum penalty, the seriousness of the offending, the absence of the benefit of a plea of guilty, the absence of any remorse and his Honour's finding that the offending on count 5 was not isolated or an aberration, a term of 3 years' immediate imprisonment was well within the range of a sound sentencing discretion.

Sentence appeal: its merits

As to ground 1, the fact finding duties of a sentencing judge were explained by McLure P (Mazza JA relevantly agreeing) in PES v The State of Western Australia,[7] as follows:
Where the offender to be sentenced has been found guilty following a trial by jury, the judge who presided at trial must determine the facts relevant to the sentencing process: Cheung v The Queen (2001) 209 CLR 1 [5], [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] ‑ [11]. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. The verdicts do not establish the non‑core facts, which must be found by the sentencing judge. Where a non‑core fact is aggravating, the judicial finding must be on the criminal standard of beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270.
[7] PES v The State of Western Australia [2014] WASCA 96 [37].
In Cheung v The Queen,[8] Gleeson CJ, Gummow and Hayne JJ approved the following statement of principle by the Court of Criminal Appeal of New South Wales in R v Isaacs:[9]
There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of [the requirement that findings of fact made against an offender must be arrived at beyond reasonable doubt], in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender.
[8] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [14].
[9] R v Isaacs (1997) 41 NSWLR 374, 378.
In our opinion, the trial judge's finding that the appellant had engaged in acts of a sexual nature with BM before the appellant committed count 5 was not inconsistent with the jury's verdicts of not guilty on counts 1, 2 and 7 or with the directed acquittals on counts 3, 4 and 6. It is plain from his Honour's sentencing remarks that the finding in question related to sexual activity apart from the charged offences alleged in counts 1, 2, 3, 4, 6 and 7. There is no doubt that the pretext call contained an implied admission that the appellant had engaged in acts of a sexual nature with BM when BM was a boy. The implied admission was not limited to count 5. His Honour's process of reasoning in support of the impugned finding was compelling. His Honour directed himself correctly as to the applicable standard of proof and as to the proper approach to fact finding. No error is apparent from his Honour's sentencing remarks.
Ground 1 of the sentence appeal is without merit.
As to ground 2, the general sentencing principles applicable to a ground of appeal which alleges that a sentence is manifestly excessive are well established. See, for example, Gleeson v The State of Western Australia.[10]
[10] Gleeson v The State of Western Australia [2019] WASCA 100 [57] ‑ [64].
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[11] The State of Western Australia v Doyle;[12] McAlpine v The State of Western Australia.[13]
[11] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39].
[12] The State of Western Australia v Doyle [2017] WASCA 207 [36].
[13] McAlpine v The State of Western Australia [2018] WASCA 195 [54].
The applicable maximum penalty for the appellant's offence of encouraging a child of or over the age of 13 years and under the age of 16 years to engage in sexual behaviour, contrary to s 321(3) of the Code, is 14 years' imprisonment. See s 321(7)(a) of the Code.
The absence of 'consent' in fact by the child is not an element of the offence created by s 321(3). Also, 'consent' in fact by the child is not a defence.
The public policy and purpose underlining s 321(3), like the public policy and purpose underlying s 321(2), is primarily to protect children from abuse by sexual predators. See, in the context of s 321(2), Deering v The State of Western Australia;[14] The State of Western Australia v SJH.[15]
[14] Deering v The State of Western Australia [2007] WASCA 212 [17] ‑ [18].
[15] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 [69].
There is no tariff for sexual offending (including, in particular, offending against s 321(3)) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.
We have had regard to the cases cited by counsel for the appellant and counsel for the State; in particular, JAF v The State of Western Australia;[16] KAT v The State of Western Australia;[17] The State of Western Australia v Fyffe.[18] None of those cases is truly comparable with the offending in the present case.
[16] JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124.
[17] KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367.
[18] The State of Western Australia v Fyffe [2018] WASCA 173.
In our opinion, the appellant's offending on count 5 was serious. That is plain from our summary of the facts and circumstances of the offending and from the trial judge's findings of fact (which are unchallenged or not successfully challenged) and his Honour's sentencing remarks generally. The appellant was, of course, entitled to proceed to trial on count 5. However, he was unable to claim the mitigation that a plea of guilty would have brought. The offending was not isolated or an aberration. The appellant was not youthful or inexperienced, for sentencing purposes, when he committed the offence. The offending was preceded by the grooming of BM. At all material times BM was, to the appellant's knowledge, vulnerable. The offending involved predatory behaviour by the appellant. He did not evince any remorse.
After considering the sentence of 3 years' immediate imprisonment in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)BM's vulnerability;
(d)the aggravating and mitigating factors;
(e)the general sentencing pattern in cases with some comparable features to the present case;
(f)the appellant's personal circumstances and antecedents; and
(g)all other relevant sentencing factors,
we are satisfied that the sentence of 3 years' immediate imprisonment was within the range open to his Honour on a proper exercise of his discretion.
In our opinion, the length of the term of imprisonment was not unreasonable or plainly unjust.
Ground 2 of the sentence appeal is without merit.

Sentence appeal: conclusion

Neither ground 1 nor ground 2 of the sentence appeal had a reasonable prospect of success. Leave to appeal should be refused. The sentence appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
2 JUNE 2021