DW v The Queen
[2004] ACTCA 22
•24 November 2004
DW v THE QUEEN [2004] ACTCA 22 (24 November 2004)
COURTS AND TRIBUNALS – criminal trial by judge alone – duty to give reasons.
CRIMINAL LAW – appeal against convictions and sentence – whether verdicts unsafe and unsatisfactory – whether sentence is manifestly excessive.
Supreme Court Act 1933 (ACT), s 68C
Jervis Bay Territory Acceptance Act 1915 (Cth)
Criminal Procedure Act 1986 (NSW), s 33
M v The Queen (1994) 181 CLR 487
Fleming v The Queen [1998] HCA 68
R v Keyte (2000) 78 SASR 68
Pettitt v Dunkley [1971] 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Wright v Australian Broadcasting Commission [1977] 1 NSWLR
Selvanayagam v University of the West Indies [1983] 1 WLR 585
Papps v Police (2000) 77 SASR 210
NRMA v Tatt (1989) 94 FLR 339
R v Power [2003] SASC 77
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 39-2003
No. SCC 117 of 2002
Judges: Crispin P, Connolly and Selway JJ
Court of Appeal of the Australian Capital Territory
Date: 24 November 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 39-2003
) No. SCC 117 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DW
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Crispin P, Connolly and Selway JJ
Date: 24 November 2004
Place: Canberra
THE COURT ORDERS THAT:
the conviction for the offence charged in the second count in the indictment be set aside and, in lieu thereof, a verdict of acquittal be entered;
the sentence for that offence be set aside, thereby reducing the total effective sentence from 10 years’ imprisonment to 9 years’ and 9 months’ imprisonment;
the non-parole period of 4 years and 9 months be set aside and, in lieu thereof, there be a non-parole period of 4 years and 6 months to commence on 10 May 2002 and expire on 10 November 2006;
the appeal otherwise be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 39-2003
) No. SCC 117 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DW
Appellant
AND:THE QUEEN
Respondent
Judges: Crispin P, Connolly and Selway JJ
Date: 24 November 2004
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal by the appellant against his conviction for a number of offences and the severity of sentences imposed upon him, the overall effect of which required him to serve 10 years’ imprisonment subject to a non-parole period of 4 years and 9 months.
The appellant had been arraigned before Gray J on the following counts:
1. . . . THAT [the appellant] between 1 January 1988 and 31 December 1989 in the Jervis Bay Territory committed an act of indecency upon another person namely [the first complainant] who was then above the age of 10 years but under the age of 16 years.
2.AND FURTHER THAT [the appellant] between 1 January 1988 and 31 December 1989 in the Jervis Bay Territory committed an act of indecency in the presence of another person namely [the first complainant] who was then above the age of 10 years but under the age of 16 years, namely 11 years.
3.AND FURTHER THAT [the appellant] between 1 May 1988 and 30 June 1989 in the Jervis Bay Territory committed an act of indecency upon another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.
4.AND FURTHER THAT [the appellant] between 1 June 1988 and 31 July 1989 in the Jervis Bay Territory committed an act of indecency upon another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.
5.AND FURTHER THAT [the appellant] between 1 June 1988 and 31 July 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.
6.AND FURTHER THAT [the appellant] between 1 June 1988 and 31 July 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person namely [the second complainant] who was then above the age of 10 years but under the age of 16 years having been born on 3 June 1976.
7.AND FURTHER THAT [the appellant] between 1 January 1978 and 31 December 1978 in the Jervis Bay Territory assaulted a female, namely [name suppressed], who was then under the age of sixteen years, and at the time of such an assault committed an act of indecency in her presence.
8.AND FURTHER THAT [the appellant] between 1 January 1983 and 2 November 1984 in the Jervis Bay Territory assaulted a female, namely [the third complainant], who was then under the age of 16 years and at the time of such an assault committed an act of indecency upon her.
9.AND FURTHER THAT [the appellant] between 1 January 1983 and 2 November 1984 in the Jervis Bay Territory assaulted a female, namely [the third complainant], who was then under the age of 16 years and at the time of such an assault committed an act of indecency upon her.
10.AND FURTHER THAT [the appellant] between 1 January 1983 and 2 November 1984 in the Jervis Bay Territory assaulted a female, namely [the third complainant], who was then under the age of 16 years and at the time of such an assault committed an act of indecency upon her.
11.AND FURTHER THAT [the appellant] between 1 December 1988 and 31 December 1989 in the Jervis Bay Territory engaged in sexual intercourse with another person, namely [the fourth complainant], who was then under the age of 10 years.
12.AND FURTHER THAT [the appellant] between 1 March 1984 and 30 April 1984 in the Jervis Bay Territory assaulted a female, namely [the fifth complainant] who was then under the age of 16 years and at the time of such assault committed an act of indecency upon her.
13.AND FURTHER THAT [the appellant] between 1 January 1984 and 31 December 1984 in the Jervis Bay Territory assaulted a female, namely [the sixth complainant] who was then under the age of 16 years and at the time of such assault committed an act of indecency upon her.
The appellant had elected for trial by judge alone and Gray J gave judgment on 10 May 2002, finding the appellant guilty of counts 1, 2, 3, 4, 5, 6, 11, 12 and 13 but acquitting him of counts 7, 8, 9 and 10.
In his reasons for judgment his Honour noted that he was bound by the provisions of s 68C of the Supreme Court Act 1933 (ACT) which was in the following terms:
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.
The reasons for judgment referred to the fact that the Jervis Bay Territory Acceptance Act 1915 (Cth) had been amended in 1989 to apply the laws in force from time to time in the Australian Capital Territory to the Jervis Bay Territory and to confer jurisdiction on the Supreme Court in relation to that Territory. His Honour adverted to the statutory provisions governing the various offences charged and went on to identify the elements of those offences. His Honour indicated that he had taken into account various warnings that he would have given to a jury, had the matter not proceeded as a trial by judge alone, confirmed that he was conscious of the need to consider each count separately in the light of the relevant evidence and dealt with various issues relating to the evidence. No complaint has been made about the manner in which his Honour approached any of these issues.
His Honour then examined the evidence relating to each of the counts in the indictment.
The Notice of Appeal raised the following grounds:
Upon conviction
i.The verdicts on counts 1, 2, 3, 4, 5, 6 and 11 are unreasonable and cannot be supported having regard to the whole of the evidence.
or in the alternative
Counts 1 and 2 (first complainant)
ii.The learned trial judge erred in failing to have regard or sufficient regard of evidence of the friend of the complainant,
iii.The learned trial judge erred in finding a relevant act of indecency.
Counts 3-6 (second complainant)
iv.The learned trial judge erred in failing to have regard or sufficient regard to the evidence of the sister of the complainant [sic].
v.The learned trial judge erred in failing to have regard or sufficient regard to the evidence of Dr Hannan [sic].
Count 11 (fourth complainant)
vi.The learned trial judge erred in ruling that there was evidence of distress and or that it was capable of corroborating the complainant.
vii.The learned trial judge erred in finding that there was evidence (or sufficient evidence) of penetration.
Upon sentence
viii. The penalties imposed are too severe.
Mr Everson, who appeared on behalf of the appellant, had apparently been briefed only recently and, whilst not abandoning any of these grounds, indicated that he wished to be heard only in relation to grounds (iii), (v) and (vii) but that he also wished to make submissions in relation to the perceived inadequacy of his Honour’s reasons for judgment. Mr White, who appeared for the respondent, did not object to this course.
The realistic approach adopted by Mr Everson in relation to the conduct of the appeal did not, of course, absolve the court of the need to consider each of the grounds pleaded and we will deal with them sequentially.
Ground (i)
Ground (i) raised what is often referred to as the “unsafe and unsatisfactory” ground of appeal. In M v The Queen (1994) 181 CLR 487 at 493 Mason CJ, Deane, Dawson and Toohey JJ said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. [footnote references omitted]
Their Honours added at 494:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [footnote references omitted]
In the present case, save for the offence alleged in count 2 which will be addressed more specifically in relation to ground (iii), we are satisfied that, upon the whole of the evidence it was open to his Honour to be satisfied beyond reasonable doubt that the accused was guilty of the offences charged. It is true that each of the allegations were substantially uncorroborated and that they were attended by circumstances which clearly required careful scrutiny of the evidence in the context of the potential dangers to which the warnings identified by his Honour were directed. However, having regard to the advantage that his Honour enjoyed in having seen and heard the witnesses, we are unable to say that the evidence lacks credibility for reasons not explained by the manner in which it was given or that it was not open to his Honour to be satisfied beyond reasonable doubt that the accused was guilty.
Ground (ii)
In our view there is no substance in this ground. The first complainant said, after the act of indecency referred to in the second count in the indictment, that she had run out of the shop and saw a female friend whom she told what had happened. That conversation had occurred in 1988 or 1989 when she was about 11 years old. The friend was called to give evidence and said that she did not recall the conversation. She was also asked, without objection, whether she would have remembered such a conversation if it had occurred and said that she would have done so. It should be noted that the friend would herself have been only 11 or 12 years old at the time and that another 12 or 13 years had passed before she was called to give evidence. His Honour referred to her evidence but did not accept that it cast any doubt on the credibility of the complainant’s evidence as to the alleged offence. His Honour had the advantage of seeing and hearing both the complainant and her friend give evidence and, despite the friend’s expressed confidence in the reliability of her own memory, this conclusion was clearly open to him. In any event, having regard to the view that we have formed in relation to ground (iii), nothing turns on this issue.
Ground (iii)
Mr Everson was on firmer ground in contending that the evidence given by the first complainant was insufficient to establish the commission of the offence charged in the second count. The relevant portion of the plaintiff’s evidence was as follows:
After I finished cleaning up I walked out the back and [the appellant] had a projector set up that was showing movies of women having sex with dogs and horses. He then come up to me, his shorts were around his knees – his shorts were around his knees. He said something to me I can’t recall at this stage, but I threw my can of drink at him and he ducked and I run out the shop.
Whilst these allegations were clearly disturbing, the real gravamen of the Crown case in respect of this offence lay in the implicit allegation that the appellant had been naked from the waist down. Yet, as Mr Everson pointed out, there was simply no evidence to that effect. The first complainant was not asked whether the appellant had been wearing underpants and, whilst the sordid nature of the incident may suggest that that this was unlikely we are unable to accept Mr White’s submission that the strength of any such inference was sufficient to establish the truth of the allegation to the requisite standard.
Accordingly, the appeal against the appellant’s conviction for the offence charged in count 2 of the indictment must be upheld.
Ground (iv)
This ground relates to the conviction for the offence charged in count 4 of the indictment. The second complainant gave evidence that the appellant had grabbed her on the crotch of her jeans and that at about that time the appellant’s sister walked into the back of the shop and the appellant pulled away, alarmed. The appellant’s sister had looked surprised and had given the second complainant “a filthy look” and walked out. The appellant’s sister gave evidence that she did not remember ever seeing the appellant and second complainant at the back of the shop or seeing the appellant pull away from the second complainant, alarmed or surprised.
In cross-examination the second complainant was asked whether the appellant’s sister had actually seen the incident at the back of the shop and answered “she could have, she may have. I don’t know what the – I don’t know from her point of view. I’m sure she wouldn’t have seen it, if she didn’t want to see it.” The incident was alleged to have occurred in 1988 or 1989, when she was 10 or 11 years old, and we are unable to see how the credibility of the evidence that she gave in 2002 could have been effectively undermined because of a perceived conflict between her recollection of an impression that another person may have seen a brief incident and evidence that the person did not remember doing so. Nonetheless, after referring to the sister’s evidence, his Honour said that given the length of time since the alleged incident had occurred and the evidence “of a person who could potentially corroborate it”, he was obliged to be very careful in his assessment of the second complainant’s evidence concerning it. We are unable to discern any error in this approach.
Ground (v)
Mr Everson submitted that the evidence of Dr Hanan had been significant because, whilst the second complainant said that she had been referred to him for bleeding from her anus after an incident in the May/June 1989 school holidays, Dr Hanan gave evidence that she had been referred to him on 24 August 1988. He confirmed that he had been provided with a history that she had had some blood in her bowel but said that he could “give no supporting evidence as to whether or not she had been sexually molested”. After referring to Dr Hanan’s evidence, his Honour said that the date of the offence did not bear the significance that counsel then appearing for the appellant had sought to attach to it and that the incidents could have taken place at an earlier time than that suggested by the second complainant.
Mr Everson argued, in essence, that this had been impermissible speculation. However, in our opinion, his Honour was entitled to take into account the possibility that the complainant was simply mistaken about whether the alleged incident had occurred in 1988 or 1989. Furthermore, the defence tendered an affidavit annexing a statement taken from the complainant which stated that she had been taken to see Dr Hanan about two or three weeks after the incident in question. Accordingly, it was open to his Honour to conclude that the incident occurred between 1 June 1988 and 31 July 1989 that were the dates specified in count 6. We are again unable to discern any appealable error.
Ground (vi)
There was ample evidence to support his Honour’s finding that the fourth complainant had been distressed following the incident in which the offence alleged in count 11 had allegedly occurred. It was clearly open to his Honour to regard this evidence as corroborative of her evidence.
Ground (vii)
There is also ample evidence that the appellant’s hand had penetrated the fourth complainant’s vagina.
The adequacy of reasons
Mr Everson submitted that his Honour had failed to explain why he had accepted the evidence of the various complainants and, conversely, why he had regarded the appellant’s evidence as lacking sufficient credibility to even raise a reasonable doubt. He also argued that whilst his Honour had correctly identified the burden and standard of proof, some of the comments subsequently made during the course of his reasons for judgment suggested that he had approached the matter on the basis of an unstated assumption that the evidence given by the complainants should be accepted unless some adequate reason for rejecting it could be established.
On the other hand, Mr White submitted that his Honour had gone further than necessary in providing reasons for his decisions. In a trial by judge alone, the judge effectively acts as the jury, subject only to the additional requirements imposed by s 68C of the Supreme Court Act. Hence, his Honour was required to state the principles of law which he had applied, the findings of fact which he had made, and any warnings which he was obliged to take into account. There was nothing in s 68C that required him to give reasons.
Whilst it is true that s 68C does not expressly refer to the need for reasons, such a duty arises in relation to other proceedings without a jury, including summary prosecutions, and there is nothing in the terms of s 68C that purports to relieve trial judges of that requirement. Furthermore, in Fleming v The Queen [1998] HCA 68 Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ dealt with a similar issue in relation to s 33 of the Criminal Procedure Act 1986 (NSW) which is in substantially the same terms as those contained in s 68C of the Supreme Court Act and stated:
whilst s 33(2), when specifying that which a "judgment" must include, does not use the expression "reasons for judgment", it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.
In R v Keyte (2000) 78 SASR 68, after finding that there was an implied obligation for a judge to give reasons after a trial by judge alone even in the absence of a statutory requirement to record principles of law or findings of fact, Doyle CJ, with whose reasons for judgment Wicks J agreed, proceeded to cited an oft-quoted passage from the judgement of Asprey JA in Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 in which his Honour had said that “the judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached …”. Doyle CJ said that more recently the High Court in Fleming v The Queen had apparently approved of the decision in Pettitt v Dunkley. His Honour (at [48]) said that the extent of the duty to provide reasons depended upon the scope for appellate review and went on to express agreement with the following remarks of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.
In our opinion the brief passage offers a succinct but adequate statement of the relevant principles. Any grounds of appeal based upon an alleged inadequacy of the reasons that have been provided must obviously be determined by reference to the issues that arose at the trial, the nature of the evidence, the scope of the appeal and other relevant circumstances. However, the general scope of the duty should be noted: it is a duty to explain his or her decision; not to write an exhaustive treatise on every aspect of the trial. The reasons need not be lengthy or elaborate: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; Soulemezis v Dudley (Holdings) Pty Ltd at 259, 269-270 and 280. It is necessary to state the essential grounds and, in many cases, the reasons for preferring one conclusion to another: Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701. It is not necessary to make explicit findings on every disputed aspect of the evidence if such findings can be clearly inferred: Selvanayagam v University of the West Indies [1983] 1 WLR 585 at 588 (though this decision has been criticised: see Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 281).
There are some cases which might suggest that the duty to give reasons includes a duty on the trier of fact to state expressly the reasons for rejecting the credibility of witnesses: see Papps v Police (2000) 77 SASR 210 at 218-219; NRMA v Tatt (1989) 94 FLR 339 at 353. In our view this is not a necessary consequence of the duty to give reasons. In this regard we agree with the reasons of Perry J (with whom Williams and Bleby JJ agreed) in R v Power [2003] SASC 77 at [59] and [63]-[65]:
However, it seems to me that this is one of those cases where the trial judge's preference for the evidence of V over that given by the appellant "... rests substantially upon the impression made by" the witnesses when giving evidence. In those circumstances, in my view, there is no requirement that the trial judge should attempt to give a detailed explanation for the decision to prefer the evidence of the one witness against that of another. The trial judge said that he was most impressed with V as a witness, and had no doubt that she was telling the truth. V's evidence was adequately tested by close cross-examination by counsel for the appellant, and the trial judge had an adequate opportunity to assess her credibility insofar as it turned on the impression she gave while in the witness box. In the relevant respects her evidence appears consistent. Its consistency was reinforced, at least with respect to the incident the subject of count 1, in that this was followed by a prompt complaint to her mother.
………
[Counsel for the appellant] submitted that it was unsatisfactory and likely to create a "feeling of injustice" for his client to be told that he was disbelieved and that the evidence of the complainant was accepted with (sic) a more detailed explanation.
As to that submission, I would make two comments.
In the first place, there will sometimes be cases where very little can be given by way of an explanation for preferring one witness to another. As I have suggested, in my view, this is one such case.
In the second place, the decisions reached by a jury, including the jury's decisions as to the central factual issues in a case, are inscrutable, in the sense that no reasons are given. I have seen no evidence to support the view that this is likely to create a "feeling of injustice" in an accused person, or that it otherwise operates to impair public confidence in the administration of justice. [footnotes omitted]
(See also Bleby J at [82])
There may well be cases, of course, where the factual issues before the trier of fact are such that reasons for decision will not be sufficient unless those reasons include an analysis of the witness’ evidence, demeanour and particular circumstances relating them to the other material evidence in the case. However, this will depend upon the circumstances of each case.
In the present case, it is true that whilst his Honour found part of the evidence given by the appellant to have been “calculated and opportunistic” he did not provide any express statement of his reasons for rejecting the balance of the appellant’s evidence. However, whilst it is true that the rejection of some aspect of a witness’ evidence does not lead, ipso facto, to its rejection as a whole, the finding that part of the appellant’s evidence had been calculated and opportunistic inevitably undermined his overall credibility. Furthermore, judgments about the credibility of witnesses can rarely be explained with complete clarity. Judges sometimes speak of the “demeanour” of a witness but that is merely a short hand means of referring to the combined effect of a minutiae of impressions derived from such matters as the facial expressions, inflection of voice and body language of the person in question. It may be impossible to explain precisely even the clearest impressions that have been formed. In some cases there may be other factors such as the inherent plausibility or implausibility of the witnesses’ account or its consistency with other evidence that may support the judge’s impression but in other cases he or she may be unable to do more than make a generalised reference to the demeanour of the witness.
Mr Everson submitted that his Honour did not even go that far. As he pointed out, the reasons for judgment were devoid of any express reference to the demeanour of the appellant. However, read as a whole, his Honour’s judgment reveals a careful approach to the assessment of all of the evidence adduced at the trial, augmented by numerous passages in which he identified issues capable of casting doubt on particular aspects of the evidence and reminded himself of the need to exercise particular care. His Honour set out in some detail the principles that he was to apply in analysing the evidence including as to credibility. No error has been suggested in relation to those principles. As is plain from the reasoning of his Honour, the issue was ultimately one of credibility. It is clear that his Honour accepted the complainants as witnesses of credit. While there was some evidence that might have cast doubt on that credit his Honour analysed that evidence and explained why, in his view, it did not affect that credit.
We are satisfied that it is a necessary implication of his Honour’s judgment, when read as a whole, that he accepted the evidence of the various complainants and rejected the evidence of the appellant substantially because of his impression of their demeanour as well as other factors such as the inherent plausibility or implausibility of their accounts in the circumstances revealed by the evidence. Furthermore, whilst it is open to a judge to reject part of a witness’s evidence and accept other parts, the finding that part of the appellant’s evidence had been calculated and opportunistic provided a clear indication that his Honour had been left with the impression that, in giving this evidence, the appellant had not merely been mistaken but dishonest. In these circumstances, it is not difficult to see why his Honour did not regard the appellant’s credibility as a significant obstacle to conviction in the face of credible evidence from each of the complainants.
We see no reason to suspect that his Honour may have acted upon some prima facie assumption that the evidence of the complainants should be accepted. It is true that his Honour adverted to various factors which he said did not cause him to doubt the evidence of one or more of the complainants, but, read in context, these statements merely indicated that the matters in question did not cause his Honour to doubt the impressions he had otherwise formed that the complainants had been honest witnesses.
Ground (viii)
We are not satisfied that the sentences imposed upon the appellant were excessive. The appellant was convicted of nine offences each involving acts of indecency committed on or in the presence of young girls, one of whom was only 8 or 9 years of age. It need scarcely be said that these were serious offences, though some were more serious than others and the difference in gravity appears to have been properly reflected in the sentences imposed. Whilst it is true that his Honour was obliged to have regard to the “totality principle”, an aggregate effective sentence of 10 years’ imprisonment with a non-parole period of 4 years and 9 months was not, in our opinion, excessive.
However, since the appeal against his conviction for the offence charged in count 2 of the indictment is to be upheld, the sentence of 6 months’ imprisonment imposed in relation to that offence must be set aside. That sentence was to be served concurrently with another sentence of 3 months’ imprisonment imposed in relation to the offence charged on count 1. Therefore, the net aggregate sentence will be reduced by only three months. We think it is appropriate to reduce the non-parole period by a similar period.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 24 November 2004
Counsel for the Appellant: Mr C Everson
Solicitor for the Appellant: Baker Deane and Nutt Lawyers
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 10 November 2004
Date of judgment: 24 November 2004
9
6
3