DTN v The State of Western Australia
[2021] WASCA 68
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DTN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 68
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 2 FEBRUARY 2021
DATE OF FINAL
SUBMISSIONS : 25 FEBRUARY 2021
DELIVERED : 22 APRIL 2021
FILE NO/S: CACR 173 of 2020
CACR 174 of 2020
BETWEEN: DTN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: PRESIDENT QUAIL
File Number : GN 7 - 9 of 2019
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of three charges of sexually penetrating a child under the age of 13 years - Whether the verdicts of guilty on which the convictions are based were unreasonable or cannot be supported
Criminal law - Appeal against sentence - Appellant a juvenile at the time of the offending - Appellant aged 23 when sentenced - Individual sentences of 10 months' immediate imprisonment - Individual sentences ordered to be served concurrently - Whether individual sentences should have been suspended or conditionally suspended
Legislation:
Criminal Code (WA), s 320(2)
Criminal Procedure Act 2004 (WA), s 120(2)
Sentencing Act 1995 (WA), s 39
Young Offenders Act 1994 (WA), s 3, s 4, s 7, s 46, s 50B
Result:
CACR 173 of 2020
Leave to appeal refused
Appeal dismissed
CACR 174 of 2020
Appellant's application in an appeal filed on 8 February 2021 granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P G Giudice |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | George Giudice Law Chambers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
DC v The State of Western Australia [2014] WASCA 121; (2014) 242 A Crim R 147
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
KWLD v The State of Western Australia [No 4] [2013] WASCA 185
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McAlpine v The State of Western Australia [2018] WASCA 195
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Yusuf [2005] VSCA 69; (2005) 11 VR 492
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Fyffe [2018] WASCA 173
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
JUDGMENT OF THE COURT:
The appellant has appealed against conviction and sentence.
On 24 September 2020, the appellant was convicted, after a trial in the Children's Court before its President, Judge Quail, of three charges of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (the Code).
The offending occurred in the course of two incidents. The complainant in all of the charges was a girl who is related to the appellant.
The first incident was referred to at the trial as the One Arm Point incident. It involved one charge, namely that the appellant had penetrated the complainant's vagina with his finger. The offending allegedly occurred between 1 December 2013 and 31 January 2014. At the time the appellant was aged 16 and the complainant was aged 9.
The second incident was referred to at the trial as the Barrel Wells incident. It involved two charges. First, the appellant had penetrated the complainant's vagina with his finger. Secondly, the appellant had penetrated the complainant's vagina with his penis. The offending allegedly occurred on 23 January 2015. At the time the appellant was aged 17 and the complainant was aged 10.
The maximum penalty for each of the offences is 20 years' imprisonment.
On 9 November 2020, the trial judge imposed sentence. At that time the appellant was aged 23. His Honour sentenced the appellant to 10 months' immediate imprisonment on each charge and ordered that the sentences be served concurrently. The total effective sentence was therefore 10 months' immediate imprisonment. A parole eligibility order was made.
In the conviction appeal, the appellant initially relied upon one ground (ground 1). The ground alleges, in essence, that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.
At the hearing of the appeals this court made an order permitting the appellant to file and serve an application in the conviction appeal for leave to add a new ground (ground 2). By an application filed on 8 February 2021 the appellant applied for leave to add ground 2. The ground alleges, in essence, that the trial judge erred in law in rejecting the appellant's denials, further or alternatively in failing to give any or any adequate reasons for rejecting the appellant's denials, in an electronically recorded interview with police on 3 January 2019 that he had committed any of the alleged offences and that he had been involved in any sexual activity with the complainant.
In the sentence appeal, the appellant relies upon one ground. The ground, as explained in the appellant's written submissions, alleges, in essence, that the sentences were manifestly excessive as to type in that the sentences of imprisonment should have been suspended or conditionally suspended.
At the conclusion of the hearing of the appeals, this court reserved judgment.
As to the conviction appeal, we would grant the appellant leave to add ground 2 as sought in the appellant's application filed on 8 February 2021. However, we would refuse leave to appeal. The conviction appeal must be dismissed.
As to the sentence appeal, on 19 February 2021 this court refused leave to appeal and dismissed the appeal.
Our reasons in relation to the conviction appeal and the sentence appeal are as follows.
Conviction appeal: an overview of the State's case at the trial
An overview of the State's case at the trial is as follows.
The complainant was born in January 2004. The appellant was born in October 1997.
As to the first incident, the State alleged that the appellant was visiting One Arm Point. He was visiting the family home of the complainant and her mother. On the day in question the appellant was aged 16 and the complainant was aged 9. The appellant and the complainant were playing on an Xbox in the rear bedroom of the house. At some point the appellant was on an upper bunk bed and the complainant was on a lower bunk bed in the rear bedroom. The appellant moved from the upper bunk bed to the lower bunk bed and lay next to the complainant. He then put his hand inside her shorts and inserted a finger into her vagina. The complainant experienced pain and discomfort. The digital penetration continued until the complainant's mother, who was in the main kitchen area, called the appellant and the complainant and told them that dinner was ready. At that point, the appellant and the complainant left the rear bedroom and went to the main lounge area and had dinner. The complainant did not at that time complain about the offending.
As to the second incident, the State alleged that the appellant and the complainant were in a small community at Barrel Wells near Kalbarri. On the day in question the appellant was aged 17 and the complainant was aged 10. She turned 11 on the following day. The complainant was sleeping or lying down on a bed in a small shed at the rear of the property. The appellant entered the shed and lay on top of the complainant. He placed his hand over her mouth. The appellant then placed his hand down the complainant's shorts and inserted a finger into her vagina. The complainant told the appellant to stop. After a short period the appellant withdrew his finger from the complainant's vagina. However, he then pulled down his pants and inserted his penis into her vagina. The complainant experienced pain and discomfort. The sexual intercourse continued for a short period. The complainant endeavoured unsuccessfully to push the appellant away. He was bigger and stronger than her and, while he had intercourse with her, his hand remained over her mouth. When the appellant ceased having intercourse with the complainant he told her, in effect, not to divulge what had occurred or worse things would happen to her. The appellant then left the shed. The complainant remained in the shed until her mother came and told her, in essence, that they were leaving Barrel Wells and travelling to Geraldton. The complainant did not at that time complain about the offending.
The complainant did not report the first and second incidents until 13 January 2018. She spoke to a nurse, Naomi Mauger, at One Arm Point. She was then admitted to a regional hospital.
Conviction appeal: an overview of the appellant's case at the trial
The appellant's case at the trial was that none of the alleged offending had occurred.
The appellant did not give evidence at the trial and he did not adduce any evidence.
The appellant participated in an electronically recorded interview with police. During the interview the appellant denied having had any sexual contact with the complainant. Police only put to the appellant the allegations of digital penetration. The allegation of penile penetration was not put. However, as we have mentioned, the appellant denied in the interview that he had been involved in any sexual activity with the complainant.
Conviction appeal: an overview of the trial judge's reasons for judgment
The trial judge set out in his reasons for judgment the principles of law that he had applied and the findings of fact on which he relied, as required by s 120(2) of the Criminal Procedure Act 2004 (WA).
His Honour recorded that the appellant had elected not to give evidence at the trial and that no adverse inference could be drawn against the appellant as a consequence of his exercise of that right. The appellant's failure to give evidence did not strengthen the State's case or fill gaps in the evidence (ts 3).
His Honour observed that the appellant did participate in an electronically recorded interview with the police. His Honour then said:
[First,] if I believe the denials that you made in the record of interview in relation to sexual offending against [the complainant], I must acquit you. Secondly, if I don't accept those denials but consider they might be true, then I must acquit. Thirdly, if I don't believe your denials then I must put that account to one side and the question will still remain, has the State, on the evidence that I do accept, proved your guilt on any charge that I'm considering beyond reasonable doubt' (ts 4).
His Honour referred to the suggestion by the appellant through defence counsel that the complainant made the complaint to the nurse, Ms Mauger, at One Arm Point on 13 January 2018 and to the hospital staff on 13 January 2018 'to gain favour with her mother because she was in trouble with her mother regarding another matter' (ts 5). His Honour reminded himself that in considering evidence of motive he must bear in mind that the appellant had no onus to point to any motive or to establish any motive (ts 5).
His Honour noted that:
(a)People in the position of the complainant sometimes do not complain immediately about sexual misconduct. The complainant's failure to complain immediately did not necessarily indicate that her allegations were untrue. There may be good reasons why a victim of sexual offending may hesitate in making or refrain from making a complaint (ts 5).
(b)The only evidence capable of proving any of the charged offences was given by the complainant. It was therefore necessary for his Honour to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of her evidence (ts 6).
His Honour gave himself a warning in accordance with Longman v The Queen[1] (ts 6 ‑ 7).
[1] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
In particular, his Honour said:
I recognise there is a real risk of a miscarriage of justice in acting on the complainant's evidence alone. It would be dangerous for me to convict [the appellant] unless having very carefully considered these issues, I'm satisfied nonetheless that [the complainant] is a truthful and reliable witness considering the evidence of the charge I'm considering (ts 7).
As to the appellant's denials in his electronically recorded interview with police, his Honour commented:
In his record of interview, and it's his position through his plea as well, [the appellant] denies the allegations in relation to the alleged offending and he denies any sexual contact with the complainant. Again, in the interview it was only put to him that there were allegations of digital penetration. The allegation of penile penetration wasn't put. But his denial is a blanket denial of any sexual contact with the complainant (ts 8).
His Honour directed himself as to the elements of the charges (ts 8 ‑ 9).
His Honour considered the complainant's evidence. His Honour identified particular circumstances of the child witness interview which were 'less than satisfactory' (ts 12). One item of significance from his Honour's viewpoint was that the video was 'of poor quality' by reason of the placement of the complainant. His Honour said that the complainant was placed side on to the camera and he was unable to see the complainant's face and discern her expression (ts 13). However, the quality of the pre-recorded evidence was 'much higher' and there was a 'clear view' of the complainant (ts 14).
His Honour found that the complainant was a truthful, convincing and reliable witness (ts 24). In particular:
(a)His Honour said that, despite the unsatisfactory manner in which the police had conducted the child witness interview on 20 April 2018, the complainant answered all questions immediately and apparently from memory. The complainant gave a 'free narrative' which had a surprising level of detail, including detail of conversations. The complainant presented as very 'matter of fact'. She expressed little emotion. She did not exaggerate or fill in gaps (ts 12 ‑ 13).
(b)His Honour concluded that the complainant's account of events in the child witness interview was internally consistent and plausible. On occasions, she corrected mistakes that had been made by the interviewer (ts 13).
(c)His Honour said that the complainant was noticeably more mature when she gave her pre-recorded evidence on 4 and 5 March 2020 (ts 14).
(d)His Honour was of the view that during her pre-recorded evidence, the complainant presented as engaged and intelligent. She responded immediately to all questions. She provided more detail when asked (including detail about which she had not previously been questioned). She made appropriate concessions as to her memory and did not exaggerate or fill in gaps (ts 14).
(e)His Honour noted that during her evidence the complainant did not evince malice or animus towards the appellant. She did not exhibit anger or frustration during a lengthy and thorough cross‑examination (ts 14).
(f)His Honour said that, on one occasion during cross‑examination, the complainant admitted that her mind had gone blank. She did not attempt to cover up the fact that at that point she had lost her memory (ts 14).
His Honour considered a number of matters raised by defence counsel on behalf of the appellant as to alleged inconsistencies in the complainant's account of the offending.
First, defence counsel submitted that there was some confusion in the complainant's evidence as to her age when each of the incidents occurred. His Honour concluded that the complainant's lack of reliability as to her age did not affect his conclusion that she was a credible and reliable witness in relation to the occurrence of the alleged offending. His Honour noted that it was not unusual, after a delay of four or five years, for a young complainant to be inaccurate in relation to dates.
Secondly, defence counsel submitted that during her pre-recorded evidence the complainant had said that the appellant made threats to harm her during both incidents whereas in her child witness interview the complainant had said that the appellant threatened her during the Barrel Wells incident but made no mention of a threat in her account of the One Arm Point incident. His Honour was of the view that the complainant's account of the One Arm Point incident, including her assertion that the incident ended when the complainant's mother called out that dinner was ready, was plausible. There had been a delay of three to four years between the time of the alleged incidents and the child witness interview, and a further significant delay between the time of the child witness interview and the pre-recorded evidence. His Honour concluded that the child witness interview happened closer to the alleged incidents and was therefore more likely to be reliable in relation to the One Arm Point incident. When the complainant gave her pre-recorded evidence, there had been a displacement mistake so that the complainant had used the words spoken to her by the appellant during the Barrel Wells incident and put them into the One Arm Point incident (ts 16).
Thirdly, defence counsel submitted that during her pre-recorded evidence the complainant said, in describing the threats made by the appellant during the Barrel Wells incident, that the appellant had threatened to kill her whereas in her child witness interview the complainant had not mentioned that threat. His Honour found that this additional threat mentioned by the complainant in her pre-recorded evidence was an additional detail which the complainant then recalled. His Honour was satisfied that her evidence on that matter was credible and reliable, notwithstanding her failure to mention it during her child witness interview. His Honour noted that, where inconsistencies arise between evidence given in court and the content of an out of court statement, the evidence given in court is critical, although inconsistencies are relevant to a complainant's credibility (ts 17).
Fourthly, defence counsel submitted that during her pre‑recorded evidence the complainant had said, in describing the One Arm Point incident, that the appellant was wearing a t-shirt and shorts whereas in her child witness interview the complainant had merely said that the appellant was wearing clothes. His Honour was of the view that this difference involved a minor detail which had no material impact on the complainant's credibility. It was the kind of detail which a child would not necessarily be expected to notice or even remember years later (ts 17).
Fifthly, defence counsel submitted that during her pre-recorded evidence the complainant had said, in describing the Barrel Wells incident, that the appellant was leaning over her when he committed the acts of sexual penetration whereas in her child witness interview the complainant had said that the appellant laid on top of her. His Honour considered that this was a semantic difference. The difference indicated the complainant's use of language and was not a substantial inconsistency. The complainant was endeavouring to convey that there was a gap between her body and the appellant's body, so that their bodies were not physically lying in contact with each other. His Honour also said that the complainant was confused by some of the cross‑examination on this issue (ts 17 ‑ 18).
Sixthly, defence counsel submitted that when she was proofed by the prosecutor the complainant had said that during the Barrel Wells incident the appellant pulled his pants down to his knees whereas in cross‑examination the complainant had said that she could not remember and that her mind had gone blank. His Honour said the complainant was prepared to admit that she was unsure. Her statement, after a lengthy cross‑examination, that she had lost her memory was entirely believable. His Honour reiterated that the complainant had not attempted to fill in the gaps (ts 18).
Seventhly, defence counsel submitted that during her child witness interview, when describing the acts of digital penetration, the complainant had said that the appellant's finger had gone up her shorts whereas in her pre‑recorded evidence the complainant had given a more detailed account to the effect that the appellant's hand had gone across her belly and down her shorts and that the appellant's finger had gone up into her vagina. His Honour concluded that there was no real inconsistency. The complainant had been asked during the pre‑recording of her evidence to provide greater detail in relation to what had occurred. Also, when she gave her pre-recorded evidence, the complainant was older and more mature. The additional detail had not previously been sought.
Eighthly, defence counsel submitted that during her child witness interview the complainant had said that the appellant had attempted to put his penis into her vagina. She said, in effect, that all of the appellant's penis was touching her vagina. She said that it hurt. When asked why it hurt, the complainant responded 'because no one has ever done it to me before' (ts 19). By contrast, during her pre‑recorded evidence the complainant said that the appellant's penis had gone into her vagina and that the appellant was moving it up and down. His Honour said that at the time of the child witness interview the complainant was aged 14. At the time of her pre-recorded evidence she was aged 16. His Honour was of the view that, when she gave her pre‑recorded evidence, the complainant was more mature and had a better understanding of sexual matters and a better command of language. His Honour considered that the complainant's description during her pre-recorded evidence to the effect that the appellant put his penis into her vagina and moved it about was not an inconsistent statement. Rather, that evidence illustrated her greater maturity at the time she gave her pre-recorded evidence (ts 18 ‑ 20).
Ninthly, defence counsel submitted that there were inconsistencies in the complainant's description of the Barrel Wells incident in relation to whether the appellant had used his left hand or his right hand to cover her mouth. His Honour noted that the complainant's description of the incident during her pre-recorded evidence was more detailed than during her child witness interview. His Honour said that, to the extent there was any inconsistency, the inconsistency was of no importance and did not adversely impact on the complainant's credibility. Details as to which hand the appellant used or as to the precise position of the appellant's feet were not matters which a young child might be expected to recall years later (ts 20).
His Honour examined in detail defence counsel's submission that the complainant had made inconsistent statements when she complained to the nurse, Ms Mauger, at One Arm Point on 13 January 2018 and to the hospital staff on 13 January 2018. In particular:
(a)When she spoke to Ms Mauger, the complainant mentioned that her mother had caught her with an older boy, in the context of a sexual interaction, and that her mother had assaulted her; that she had been raped by a boy when she was aged 11; and that her mother's cousin, who lived in Northampton, had molested her when she was aged 9 (this being a reference to the appellant) (ts 21).
(b)Later, when speaking to the hospital staff, the complainant mentioned the sexual interaction with the older boy and the rape, but did not refer to her mother's cousin having molested her when she was aged 9.
(c)His Honour was of the view that the complainant's failure to mention the molestation to the hospital staff was not significant.
(d)During cross-examination, the complainant said that she would have told Ms Mauger that there had been digital and penile penetration. However, his Honour noted that the complainant's first answers to questions on this topic were to the effect that she did not recall exactly what she had told Ms Mauger. His Honour referred to defence counsel's assertion that the complainant's disclosure to Ms Mauger about the molestation by her mother's cousin was inconsistent with the complainant's subsequent disclosures because the disclosure to Ms Mauger lacked detail. His Honour was of the view that the difference in detail did not adversely affect the complainant's credibility or reliability. The focus of Ms Mauger's enquiry of the complainant related to the complainant's mental health. His Honour was satisfied that there was no real inconsistency (ts 21).
(e)The complainant's complaint to her mother was made in the course of text messages, initiated by the mother, while the complainant was at the hospital. The messages revealed that the complainant was reluctant to discuss the matter in any detail. His Honour was of the view that the reluctance was 'entirely convincing and as [he] would expect' (ts 22).
(f)The complainant disclosed to Ms Mauger and to hospital staff that she had been raped when she was aged 11. His Honour said that, to the extent that there were any differences between her disclosures on that topic, on the one hand, and her evidence, on the other, it was unsurprising that the complainant's view about the rape, as a 16 year old, might differ from her view, as a 14 year old, because when she made the complaints on 13 January 2018 the complainant was upset, suicidal and speaking to Ms Mauger and the hospital staff about her mental health. His Honour also referred to the difference between the complainant's evidence and her mother's evidence, but was of the view that the inconsistency between them reflected their differing impressions as to what had happened. The reliability of what the complainant said when she was aged 14, as recorded in the hospital notes and when she was in poor mental health, did not adversely affect the credibility of her evidence (ts 22 ‑ 23).
(g)The complainant disclosed to hospital staff that she heard positive and negative voices in her head and that she had an imaginary friend called Diana. His Honour was of the view that it was significant that the complainant had volunteered at the outset the information about the voices and the imaginary friend and that the complainant was able to distinguish the voices and the imaginary friend from her real experiences. His Honour concluded that the voices and the imaginary friend were coping mechanisms and were not an unusual reaction by someone who had suffered trauma and had mental health issues. His Honour accepted that the complainant was unreliable as to when she began hearing the voices. However, her unreliability in that respect did not adversely affect her credibility (ts 23 ‑ 24).
(h)The complainant did not make a complaint about the appellant's alleged offending until January 2018. Also, the complainant did not scream or call out during either of the incidents even though other people were in reasonably close proximity. However, his Honour was of the view that it is common for children not to complain about sexual misconduct. There was also evidence given by the complainant as to threats having been made by the appellant. His Honour concluded that the most important reason for the complainant's failure to complain earlier appeared from the text messages she had exchanged with her mother. In the text messages the complainant had stated that she did not want to identify the perpetrator because it would cause a fight within the family. His Honour concluded that the complainant's explanation for not complaining earlier was entirely plausible and exactly how a young person might think. The complainant's failure to scream or call out during the incidents did not adversely affect her credibility. It is often the case that children, in similar circumstances, do not scream or call out to adults who are nearby. The complainant's account of the alleged offending was not rendered inherently implausible by her failure to complain earlier or her failure to scream or call out (ts 15 ‑ 16).
Conviction appeal: ground 1: the appellant's submissions
Counsel for the appellant submitted that the trial judge was not entitled to be satisfied that the complainant's evidence was credible and reliable.
Counsel alleged that unsatisfactory features of the complainant's evidence included:
(a)inconsistencies in the complainant's account of events in her child witness interview on 20 April 2018; a signed written statement she gave to the prosecutor on 2 March 2020; her pre‑recorded evidence on 4 and 5 March 2020; what she told the nurse, Ms Mauger, at One Arm Point on 13 January 2018; and what she told hospital staff on 13 January 2018; and
(b)the inherent unlikelihood of her description of the alleged offending during the second incident.
Counsel also asserted that there was evidence that the complainant suffers from auditory hallucinations and delusions.
Counsel, in his written submissions, specified numerous matters in relation to the complainant's evidence which he contended were inconsistent or unreliable. Those matters had been raised at the appellant's trial. The trial judge examined and dealt with them in his reasons.
Counsel, in his written submissions, also relied upon the complainant's failure to make an earlier complaint about the alleged offending; the inherent unlikelihood of the offending having occurred as described by the complainant, having regard to risk of detection and the proximity of other people; and the complainant's inability to recall some circumstances relating to the appellant and the alleged offending.
According to counsel, the unsatisfactory aspects of the complainant's evidence, including the numerous inconsistencies in her account of events, rendered her evidence incredible and unreliable to such a degree that it was not open to his Honour to be satisfied beyond reasonable doubt of the appellant's guilt in relation to any of the charged offences.
It was submitted that it was not reasonably open to the trial judge to find that the inconsistencies and other unsatisfactory aspects of the complainant's evidence did not detract significantly from her credibility and reliability.
Counsel also referred to the forensic disadvantages suffered by the appellant as a result of the delay between the alleged offending, on the one hand, and the allegations being put to him following the complainant's complaint, on the other.
Conviction appeal: ground 1: the State's submissions
Counsel for the State noted that the appellant had not sought to demonstrate that any aspect of the trial judge's reasoning was wrong or that there was any flaw in his Honour's approach to the evidence.
It was submitted that his Honour considered the evidence and defence counsel's submissions with care. The appellant had not established that it was not open to his Honour to approach the evidence in the manner he did.
After having given himself a Longman direction, the trial judge evaluated all matters which had the potential to undermine the credibility and reliability of the complainant's evidence. His Honour had the considerable advantage of having heard and seen the complainant give evidence, albeit by means of video recordings. It was open to his Honour to find that the complainant's account of events was sufficiently credible and reliable to support verdicts of guilty in relation to the charged offences.
It was submitted that the verdicts of guilty were not unreasonable. Each of the verdicts was supported by evidence which his Honour was entitled to accept.
Conviction appeal: ground 1: its merits
It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[2] Zaburoni v The Queen;[3] GAX v The Queen.[4]
[2] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
[3] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).
[4] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).
An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[5]
[5] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[6]
[6] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[7] SKA [13].
[7] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).
In Pell v The Queen,[8] the High Court made these observations about the assessment of the credibility of a witness by the jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function. (footnote omitted)
[8] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
The High Court in Pell [39] also made these observations, in the context of the evidence of a complainant in a child sex case, about the function of the appellate court in determining a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (footnote omitted)
The observations of the High Court in Pell, to which we have referred at [62] ‑ [63] above, apply by analogy where the tribunal of fact is a judge sitting alone without a jury.
The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494 ‑ 495). See also R v Hillier;[9] Fitzgerald v The Queen;[10] R vBaden‑Clay.[11]
[9] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).
[10] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).
[11] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).
The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[12] GAX [25].
[12] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).
The nature and extent of the appellate court's task, in a particular case, will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.
For example, in Zaburoni the critical issue concerned what was able to be inferred, beyond reasonable doubt, about the appellant's state of mind. The question for the appellate court was whether, having made its own independent assessment of the evidence, the court considered it to have been open to the jury to be satisfied beyond reasonable doubt that the appellant had the requisite subjective intention [56].
In our opinion, the trial judge's findings and reasoning, in the present case, are not attended by any material error.
His Honour considered the matters raised by defence counsel at the trial (and reiterated in the appeal) which allegedly rendered the complainant's evidence inconsistent and unreliable. His Honour had the benefit of having seen and heard videos of the complainant answering questions in her child witness interview and giving evidence at the pre-recording of her evidence. We accept that this was a lesser advantage than usual in the case of the child witness interview. However, his Honour was alive to the difficulties in the quality of that video and plainly took those difficulties into account. His Honour was well placed to assess whether any of the complainant's answers and evidence were relevantly inconsistent and, if so, the significance of any inconsistencies. His Honour gave reasons in relation to the matters relied upon by defence counsel (and reiterated on appeal). We are satisfied that his Honour's approach to the complainant's answers and evidence and his Honour's reasoning process were appropriate. We are also satisfied that his Honour was entitled to deal with the inconsistencies in the manner he did. His Honour was not bound to reject the complainant's evidence which implicated the appellant in the commission of the charged offences or to have a reasonable doubt as to whether that evidence was credible and reliable.
His Honour's approach to the complainant's failure to make an earlier complaint about the offending was unexceptional. His Honour noted, correctly, that it is common for children not to complain about sexual misconduct. The complainant gave evidence that she had been threatened by the appellant if she disclosed what had happened. The complainant was also deterred from complaining because she did not want to be responsible for a fight within the family. His Honour was entitled to conclude that the complainant's reasons for not complaining earlier were plausible and compelling.
Further, it was open to his Honour to find that the voices the complainant had heard and the existence of her imaginary friend were coping mechanisms which were not unusual for someone who had suffered trauma and had mental health issues. His Honour was entitled to form the view that the credibility and reliability of the complainant's evidence was not materially diminished by the voices she heard or her imaginary friend.
We are not persuaded that the complainant's description of the alleged offending at One Arm Point or Barrel Wells was inherently unlikely. People who sexually abuse children are not necessarily deterred by the risk of detection or the proximity of other people. His Honour was entitled to conclude that the complainant's account of the offending was not inherently implausible because she failed to scream or call out to people in the vicinity while the appellant was offending against her.
We do not accept that the complainant's description of the Barrel Wells incident was physically impossible. A submission to that effect was made to his Honour and, in our opinion, was rightly rejected (ts 20). At the material time, the complainant was a girl aged about 10 and the appellant was aged about 17. It is probable that the appellant was physically larger and stronger than the complainant. It is not inherently unlikely that the appellant was able to subdue the complainant in the manner she described.
It is true that the complainant was unable to recall some circumstances relating to the appellant and the alleged offending. For example, the complainant could not recall during the pre-recording of her evidence whether the pants she wore during the One Arm Point incident had buttons on them. Also, in relation to the Barrel Wells incident, she could not recall whether the appellant was circumcised. Further, she could not recall whether during the Barrel Wells incident the appellant's penis was hard. We are satisfied that the points relied upon by counsel for the appellant in relation to the complainant's recollection are not significant having regard to the complainant's age at the time of the alleged offending and the interval between the occurrence of the alleged offences, on the one hand, and her child witness interview and the pre-recording of her evidence, on the other.
After having given himself a Longman direction, his Honour examined and assessed all matters which had the potential to detract from the complainant's credibility and reliability as a witness.
In our opinion, after evaluating and weighing the complainant's answers and evidence (in her child witness interview and her pre-recorded evidence) and the appellant's denials and statements (in his electronically recorded interview with police), in the context of the trial record as a whole, his Honour was entitled:
(a)to be satisfied beyond reasonable doubt that the evidence of the complainant in relation to the occurrence of the charged offences was truthful, accurate and reliable;
(b)to find that any inconsistencies in the complainant's answers and evidence were not of material significance;
(c)to find that defence counsel's other assertions in relation to the credibility and reliability of the complainant's account of relevant offences were not of material significance; and
(d)to reject the appellant's denials in relation to the alleged offending.
A tribunal of fact, acting reasonably, was entitled to conclude beyond reasonable doubt, on the basis of the complainant's answers and evidence, that the appellant had penetrated the complainant's vagina with his finger at One Arm Point and that the appellant had penetrated the complainant's vagina with his finger and his penis at Barrel Wells, as charged.
The trial record does not require the conclusion that his Honour must necessarily have entertained a doubt about the appellant's guilt of the charged offences. The verdicts of guilty were not unreasonable. They were supported by evidence that his Honour was entitled to accept and by inferences that his Honour was entitled to draw. After paying full regard to the consideration that his Honour was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that his Honour had the benefit of having seen and heard the witnesses (including having seen and heard videos of the complainant), we do not have a reasonable doubt as to the appellant's guilt on the charged offences or as to the correctness of his conviction on those charges. It would not be dangerous, in the circumstances, to permit the verdicts of guilty to stand.
Ground 1 of the conviction appeal fails.
Conviction appeal: ground 2: the appellant's denials in his electronically recorded interview with police
The appellant's electronically recorded interview with police was conducted on 3 January 2019 at Geraldton police station. The prosecutor tendered the interview at trial as part of the State's case.
During the interview the interviewing police officer told the appellant that the allegations against him were of sexual penetration without consent at One Arm Point and at Barrel Wells.
The police officer incorrectly informed the appellant that the incidents occurred on two different occasions, one in December 2013 and the other in January 2014. The second incident allegedly occurred in January 2015.
As to the appellant's electronically recorded interview with police:
(a)The police informed the appellant that he was under arrest 'on suspicion of two counts, which is two occasions, of sexual penetration without consent' (EROI 5). One occasion occurred in December 2013 and the other in January 2014 [sic: January 2015] (EROI 9). One incident happened at One Arm Point and the other at Barrel Wells (EROI 9).
(b)The appellant told the police that he knew the complainant and that she was his niece (EROI 11 ‑ 12).
(c)The appellant recalled having driven to One Arm Point with his cousins about 5 years previously. He stayed at One Arm Point. The complainant came to visit. He believed his visit to One Arm Point would have been in December 2013 (EROI 13 ‑ 14).
(d)The appellant recalled being in Barrel Wells with the complainant (EROI 16).
(e)The police told the appellant that they were investigating an allegation that in December 2013, at One Arm Point, the appellant had digitally penetrated the complainant. When asked whether he had anything to say in relation to that allegation the appellant responded 'no comment' (EROI 18).
(f)The police then told the appellant that they were also investigating an allegation that in January 2014 [sic: January 2015] the appellant had digitally penetrated the complainant at Barrel Wells. When asked whether he had anything to say in relation to that allegation the appellant responded 'no comment' (EROI 18).
(g)The appellant said that he had not seen the complainant or her associated family in recent times (EROI 18 ‑ 19).
(h)The police asked the appellant whether he could think of any reason why the complainant would make up the allegations against him. The appellant responded '[a]dd fuel to the fire for [a family] feud' (EROI 20).
(i)The appellant denied having digitally penetrated the complainant without consent. He denied ever having an inappropriate relationship with the complainant. He denied ever having any sexual contact with the complainant (EROI 25).
Conviction appeal: ground 2: the trial judge's reasons for judgment
The trial judge referred in his reasons for judgment to the appellant's denials in his electronically recorded interview with police.
His Honour made findings and comments in relation to those denials as follows:
At the conclusion of the interview, [the appellant] repeated again that he denied the allegations and denied any sexual activity. But otherwise, as I say, he exercised his right of silence. Now, those denials, although they took place in a record of interview conducted by police, and although he understood that it was important to tell the truth in the interview, nonetheless, denials in a record of interview are not of the same status as evidence in court. They were not on oath and were not subject to cross-examination.
The denials that he makes in the record of interview are bare denials, not fleshed out with any other detail, and ultimately, they really don't take the matter very much further than his pleas of not guilty to the charges in court. Nothing in his denials in the record of interview causes me to have any doubts about the prosecution case and I reject those denials insofar as they were denials of offending at One Arm Point and denials of any sexual activity involving the complainant. His denial of sexual activity in January of 2014 at Barrel Wells is true. That was a mistake made by the police.
Now, having rejected his account on the record of interview, I'm of course mindful of the Liberato direction I've given myself that doesn't in any way turn into a positive for the prosecution and what is necessary for me to then do is to scrutinise the evidence very closely that the prosecution brings, and especially cautiously the evidence of the complainant (ts 10).
Conviction appeal: ground 2: the appellant's submissions
Counsel for the appellant submitted the trial judge was in error in finding that the appellant's denials in his electronically recorded interview with police were 'bare' denials, not 'fleshed out with any other detail' (ts 10). It was submitted that the appellant told the police about the sleeping arrangements when he was with the complainant; what his relationship was with her; and his opinion as to the complainant's motivation for fabricating the allegations against him, namely to add fuel to the fire in relation to a family feud.
Counsel also submitted that his Honour was in error in finding that the denials did not take the matter very much further than the pleas of not guilty because:
(a)the appellant denied any inappropriate behaviour with the complainant;
(b)the appellant denied that any sexual contact had occurred between him and the complainant;
(c)the appellant made statements as to opportunity, the relationship between him and the complainant and their respective families; and
(d)the appellant alleged a potential motive for the complainant to make false allegations against him.
It was asserted, on behalf of the appellant, that the trial judge did not give any reasons, alternatively any adequate reasons, for 'an outright rejection of [the appellant's] denials of offending and of having any inappropriate contact or sexual contact at all with the complainant even though his Honour found that [the appellant] made admissions about opportunity and the relationship and was polite and answered in a considered way'.
Counsel argued that his Honour's comment that the appellant's denials were not made under oath and were not subject to cross-examination was not a reason, alternatively an adequate reason, for rejecting his denials.
It was submitted that:
(a)his Honour relied upon his rejection of the appellant's denials in reaching the verdicts of guilty; and
(b)if there was no reason, alternatively no adequate reason, given for rejecting the denials then the absence of a proper basis for the rejection of those denials would raise a reasonable doubt as to the appellant's guilt.
Conviction appeal: ground 2: the State's submissions
Counsel for the State submitted that the trial judge gave detailed reasons for his acceptance beyond reasonable doubt of the complainant's evidence that the appellant had committed the charged offences. His Honour's acceptance of the complainant's evidence to the criminal standard necessarily involved the rejection of the appellant's denials.
It was submitted that his Honour correctly stated the effect of the relevant answers given by the appellant during his electronically recorded interview.
It was also submitted that it was open to the trial judge to accept the complainant's evidence that each of the charged offences had occurred and that his Honour was not precluded from arriving at that conclusion by the appellant's out-of-court denials.
Counsel contended that his Honour's reasons for rejecting the appellant's out-of-court denials were clearly articulated.
Counsel argued that, having regard to the nature of the complainant's evidence, the nature of the appellant's out-of-court denials and the arguments put before his Honour by the prosecutor and defence counsel, it was open to his Honour to make the findings challenged in ground 2 and that his Honour's reasons for judgment explained adequately why those findings were made.
Conviction appeal: ground 2: its merits
Where an accused is interviewed by police and the accused makes admissible and incriminating statements during the interview, the prosecution may rely upon those statements at the trial. Where the accused also makes exculpatory statements during the interview, the prosecution, if it wishes to rely on the interview at all, is bound 'to take the good with the bad' and put the admissible and incriminating statements and the exculpatory statements before the jury. See R v Soma.[13]
[13] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [31] (Gleeson CJ, Gummow, Kirby & Hayne JJ).
However, there is a distinction between evidence contained in an accused's out-of-court statements, on the one hand, and evidence of an accused or other witness given on oath or affirmation at the trial, on the other. Out-of-court statements made by an accused to police officers which are tendered by the prosecutor as evidence at the trial become evidence of the facts in issue whether those statements are inculpatory (for example, admissions against interest) or exculpatory (for example, self-serving assertions). See R v Yusuf.[14] It is proper for a trial judge, in his or her summing up or reasons for judgment, to observe that the accused's out-of-court statements (including any self-serving assertions) are not sworn or affirmed testimony and have not been tested in cross‑examination. The trial judge is entitled to inform the tribunal of fact that it is open to the tribunal of fact to evaluate the accused's out-of-court statements (including any self-serving assertions) in that light. The trial judge is also entitled to inform the tribunal of fact that exculpatory parts of an out-of-court statement do not necessarily have the same weight as inculpatory parts. The weight to be given to an accused's exculpatory out-of-court statements is a matter for the tribunal of fact to consider and determine. See Mule v The Queen.[15]
[14] R v Yusuf [2005] VSCA 69; (2005) 11 VR 492 [19] (Winneke P; Charles and Chernov JJA agreeing).
[15] Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 [21] - [22] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).
In the present case, the trial judge was satisfied, and entitled to be satisfied, beyond reasonable doubt that the complainant's evidence on oath that:
(a)the appellant had penetrated her vagina with his finger at One Arm Point; and
(b)the appellant had penetrated her vagina with his finger and his penis at Barrel Wells,
as alleged in the indictment, was honest, accurate and reliable.
His Honour examined and assessed the appellant's denials in his electronically recorded interview with police; in particular, his denial that he had offended against the complainant as alleged and his denial that he had ever engaged in any sexual activity with her. His Honour took into account, and was entitled to take into account, that the appellant's denials were not made on oath and were not subject to cross‑examination.
His Honour noted that the appellant's denials were 'bare denials'. That characterisation of the denials is correct in the sense that the appellant merely responded 'no' when the police put to him the allegations that he had digitally penetrated the complainant without her consent. The appellant also responded 'no' when the police officers asked him whether he had ever had an inappropriate relationship with the complainant or whether he had ever had any sexual contact with her. His Honour took into account, and was entitled to take into account, that the appellant's denials were 'bare denials' in that sense in considering what weight (if any) should be given to the denials.
In our opinion, it was open to his Honour to conclude, as he did, that nothing in the appellant's denials in his electronically recorded interview with police caused his Honour to have any doubts about the State's case (relevantly, any doubt about the honesty, accuracy and reliability of the material parts of the complainant's evidence).
We are satisfied that his Honour's reasons for rejecting the appellant's denials were adequate. Those reasons comprised, relevantly, his Honour's finding that the complainant was a truthful, convincing and reliable witness in her evidence as to the incidents in which the charged offences occurred; the appellant's denials were out-of-court statements made in an electronically recorded interview with police and, consequently, were not made on oath and were not tested by cross‑examination; and the appellant's denials did not cause his Honour to doubt the State's case (relevantly, the cogency of the complainant's evidence).
Ground 2 of the conviction appeal fails.
Conviction appeal: conclusion
Neither ground 1 nor ground 2 of the conviction appeal had 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
We have recounted in the context of the conviction appeal the trial judge's findings in relation to the facts and circumstances of the offending.
His Honour referred during his sentencing remarks to the complainant's victim impact statement. His Honour noted that the complainant had suffered from depression and had been suicidal for a substantial period. She continued to experience difficulties with her schooling and sleep. His Honour accepted that the appellant was not responsible for all of the complainant's difficulties. However, the appellant's offending conduct and the complainant's resulting emotional and psychological trauma were very substantial reasons for the difficulties she continued to experience.
The trial judge observed that the maximum penalty for each of the offences was 20 years' imprisonment. His Honour also noted that, as the appellant was aged 23 when sentenced, his Honour was obliged by s 50B(2) of the Young Offenders Act 1994 (WA), to sentence the appellant under the Sentencing Act 1995 (WA), although by s 50B(5) of the Young Offenders Act, s 46 of that Act applied.
His Honour identified a number of aggravating factors in relation to the appellant's offending as follows:
(a)the offending at Barrel Wells involved a degree of force;
(b)the offences were committed in the course of two discrete and separate incidents;
(c)there was a breach of trust arising from the relationship of the appellant and the complainant as second cousins (the complainant having mentioned in her victim impact statement that she felt betrayed);
(d)although the appellant was a child at the time of the offending, there was a significant age disparity in that he was about 7 years older than the complainant; and
(e)although the principles of juvenile justice applied to the appellant, he was on the verge of adulthood, particularly when he committed the offences at Barrel Wells.
The trial judge took into account the following mitigating factors:
(a)the appellant's youth and the principles of juvenile justice;
(b)the appellant's prior good character, including the absence of prior and subsequent offending;
(c)the appellant had led a pro-social life and was assessed as not requiring supervision or programs in the community (although this was due, in part, to his ongoing stance of denial);
(d)the appellant had a supportive family;
(e)the appellant had obtained employment; and
(f)the appellant had no substance abuse issues and no treatment needs.
His Honour concluded that although imprisonment was a sentence of last resort, the seriousness of the appellant's offending conduct meant that there was no alternative to the imposition of sentences of imprisonment. His Honour said that, in deciding upon individual sentences of 10 months' imprisonment, he had allowed a 'very substantial discount on what would be imposed if you were an adult at the time of this offending' (ts 11). His Honour then reconsidered all relevant sentencing factors (in particular, the appellant's prior good character and the principles of juvenile justice), but concluded that the seriousness of the offending removed any possibility of suspending or conditionally suspending the sentences. His Honour ordered that the individual sentences be served concurrently. A parole eligibility order was made.
Sentence appeal: the ground of appeal: the appellant's submissions
Counsel for the appellant submitted that the sentences of 10 months' immediate imprisonment were manifestly excessive as to type in that the sentences of imprisonment should have been suspended or conditionally suspended.
Counsel noted that at the time of the first incident the appellant was aged 16 and the complainant was aged 9. Counsel also noted that at the time of the second incident the appellant was aged 17 and the victim was aged 10 (turning 11 on the following day).
Counsel emphasised that the trial judge found that the appellant was of prior good character and the offending was 'completely out of character'.
It was argued that personal deterrence in relation to the appellant could be achieved appropriately by the imposition of a sentence of imprisonment that was suspended or conditionally suspended.
Counsel sought to support his submissions by reference to the appellant's youth, his prior good character and his personal circumstances. The appellant was employed and had good future prospects. He was supporting his partner and their 2 year old daughter. The appellant had very good support from his partner and his extended family. When the appellant was sentenced his partner was pregnant.
Sentence appeal: the ground of appeal: the State's submissions
Counsel for the State submitted that the offences committed by the appellant were serious examples of offending of their kind, having regard to the aggravating factors identified by the trial judge and the impact of the offending on the complainant. Counsel also noted that the seriousness of the appellant's offending was apparent from the offending having involved both penile and digital penetration of the complainant's vagina; the persistence associated with the appellant's offending; and the threats made by the appellant after he committed the offences at Barrel Wells, with a view to securing the complainant's silence.
It was submitted that his Honour had softened the overall sentencing outcome by ordering that the individual sentences be served concurrently.
Counsel contended that, despite the appellant's youth and his good personal circumstances and antecedents, it had not been demonstrated that it was not open to his Honour to impose sentences of immediate imprisonment in circumstances where there was no plea of guilty, an absence of remorse and the commission of multiple serious offences against a young victim which caused her significant harm.
Sentence appeal: the ground of appeal: its merits
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness for offences of the kind in question, and the personal circumstances of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
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;[16] The State of Western Australia v Doyle;[17] McAlpine v The State of Western Australia.[18]
[16] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[17] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[18] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditionally suspended imprisonment. See s 39(2) and s 39(3). A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[19]
[19] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
The maximum penalty for sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Code, is 20 years' imprisonment.
Section 4 of the Young Offenders Act provides:
If a person commits or allegedly commits an offence before reaching the age of 18 years, this Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.
By s 50B of the Young Offenders Act, the Sentencing Act and Sentence Administration Act 2003 (WA) apply to a sentence imposed on a 'young person' who is 18 years or older at the time of sentence. However, s 50B(5) provides that s 46 of the Young Offenders Act applies to the court dealing with an offender to whom s 50B applies.
Section 7 of the Young Offenders Act sets out the general principles of juvenile justice that are to be observed in performing functions under that Act.
Section 46 of the Young Offenders Act sets out the principles and considerations to be applied in sentencing a 'young person' who has been found guilty of an offence.
The term 'young person' is defined in s 3 of the Young Offenders Act to mean a person who has not reached the age of 18 years or a person to whom the Act applies because of s 4.
Accordingly, the appellant was a 'young person', for the purposes of the Young Offenders Act, when being dealt with for the current offences, notwithstanding that he had attained the age of 23 years when he was sentenced. The general principles of juvenile justice set out in s 7 of the Young Offenders Act, and the general principles and considerations identified in s 46 of the Act, applied.
In DC v The State of Western Australia,[20] Mazza JA (Buss and Newnes JJA agreeing) identified the following non-exhaustive list of propositions relating to the sentencing of young offenders:
1.The ultimate aim in sentencing a young offender is the protection of the community by the imposition of a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission and the circumstances personal to the offender.
2.Youth is normally a powerful mitigating factor and the rehabilitation of the young offender is generally a dominant sentencing consideration.
3.A young offender must not be treated more severely than an adult for the same offence.
4.Deterrence, both personal and general, punishment, retribution and public protection are accommodated in the YOA and are relevant to the sentencing of young offenders, although their role will generally be tempered. However, when in a particular case the rehabilitation of an offender appears unlikely, the offending is serious and the character and personal circumstances of the offender justify it, these factors may become significant.
5.Young offenders, even those with good antecedents, may, having regard to the circumstances of the case, be sentenced to detention or imprisonment.
6.The age and maturity of a young offender are relevant factors. Thus, a very young offender who is immature may be dealt with differently to an older child who, while still young, has a greater awareness and responsibility. (citations omitted)
[20] DC v The State of Western Australia [2014] WASCA 121; (2014) 242 A Crim R 147 [50].
In the present case, counsel for the appellant did not cite any decisions of this court or its predecessor in support of his contention that it was not open to the trial judge to impose terms of immediate imprisonment.
We have had regard to KWLD v The State of Western Australia [No 4][21] and The State of Western Australia v Fyffe[22] and to the decisions referred to in Fyffe [23] ‑ [25]. The decision in KWLD related to an offender who was a child when he committed the offences in question. The decision in Fyffe and the cases referred to in Fyffe [23] ‑ [25] concerned youthful offenders who were not children. The relevant offences in the cases we have mentioned were against s 321(2) of the Code and the applicable maximum penalty was 14 years' imprisonment. Despite those distinguishing features, KWLD, Fyffe and the cases referred to in Fyffe [23] ‑ [25] are of some value in considering whether the sentences imposed on the appellant in the present case were manifestly excessive as to type.
[21] KWLD v The State of Western Australia [No 4] [2013] WASCA 185.
[22] The State of Western Australia v Fyffe [2018] WASCA 173.
In our opinion, the sentences of 10 months' immediate imprisonment imposed by the trial judge in the present case were commensurate with the seriousness of the appellant's offending. Each of the offences was serious. His Honour ameliorated the sentences by ordering that the individual terms of immediate imprisonment be served wholly concurrently, despite there having been an interval of about 12 months between the One Arm Point incident and the Barrel Wells incident.
If the appellant had not been a child when he committed the offences and if he had not had good personal circumstances and antecedents, it would have been open to his Honour to have imposed significantly higher terms of immediate imprisonment and to have ordered some accumulation of the individual sentences. It would have been open because the appellant did not have the mitigation of pleas of guilty; the complainant was vulnerable; the appellant did not evince any remorse or victim empathy; and the offending resulted in the complainant suffering significant ongoing emotional and psychological trauma.
In our opinion, after analysing and weighing all relevant facts and circumstances and all relevant sentencing principles in the context of:
(a)the maximum penalty;
(b)the seriousness of the offending;
(c)all aggravating factors referred to by his Honour; and
(d)all mitigating factors referred to by his Honour,
the sentence of 10 months' immediate imprisonment for each offence was not unreasonable or plainly unjust.
In particular, his Honour did not err in being positively satisfied that it was not appropriate to suspend or conditionally suspend the individual terms of imprisonment. The objective seriousness of the appellant's offending decisively outweighed the mitigating factors, including his youth and his good personal circumstances and antecedents. In all the circumstances and having regard to all relevant sentencing principles, it was not appropriate to impose suspended or conditionally suspended imprisonment.
The ground of appeal fails.
Sentence appeal: conclusion
The ground in the sentence appeal had no reasonable prospect of success. Leave to appeal was therefore refused and the sentence appeal was 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
22 APRIL 2021
30
0