HTN v The State of Western Australia - [2021] WASCA 206

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HTN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 206
CORAM:   BUSS P
HEARD:   29 NOVEMBER 2021
DELIVERED          :   29 NOVEMBER 2021
FILE NO/S:   CACR 171 of 2021
CACR 172 of 2021

BETWEEN: HTN
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   BUN 79 of 2019

Catchwords:

Criminal law - Appeals against conviction and sentence - Application for bail in each appeal - Whether exceptional reasons why the appellant should not be kept in custody pending the determination of the appeals

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA), s 329(4)

Result:

Application for bail in the conviction appeal dismissed
Application for bail in the sentence appeal granted

Category: B

Representation:

Counsel:

Appellant	:	Mr D S Hunter
Respondent	:	Mr L M Fox SC

Solicitors:

Appellant	:	Legal Aid - Bunbury
Respondent	:	The Director of Public Prosecutions (WA)

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

Serukai v The State of Western Australia [2020] WASCA 127

BUSS P:

The appellant has appealed against conviction and sentence.
On 6 August 2021, the appellant was convicted, after a trial before Wallace DCJ and a jury, of two counts in an indictment.
Count 1 alleged that on a date unknown between 28 February 2007 and 28 April 2007 AC and the appellant indecently dealt with AMC, a child under the age of 16 years who they then knew to be their lineal relative, by engaging in fellatio in her presence, contrary to s 329(4) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place AC and the appellant indecently dealt with TDC, a child under the age of 16 years who they knew to be their lineal relative, by engaging in fellatio in his presence, contrary to s 329(4) of the Code.
The maximum penalty for each offence is 10 years' imprisonment.
Counts 1 and 2 concerned the same incident.
AC was tried jointly with the appellant. He was also convicted of counts 1 and 2. AC was also charged with and tried at the joint trial on a number of other child sex offences in relation to AMC and TDC. He was convicted of some of those offences.
On 29 October 2021, the trial judge sentenced the appellant to 15 months' immediate imprisonment on each of counts 1 and 2. Her Honour ordered that the sentences be served concurrently. The start date for the sentences was 29 October 2021. A parole eligibility order was made.
This court has made an urgent appeal order in relation to the conviction appeal and the sentence appeal. Programming orders have been made which require that by 4.00 pm on 25 February 2022 the appellant file the original appeal books and serve bound copies on the State. The appeals will be heard in March 2022.
The appellant has made an application in each of the conviction appeal and the sentence appeal for an order that she be granted bail pending the determination of her appeal.
The State opposes the applications for bail.
The facts and circumstances of the appellant's offending are, in summary, as follows.
Between 28 February 2007 and 28 April 2007, the appellant and AC resided at the home of AC's mother, NC. The appellant and AC were then in a relationship. The appellant was the biological mother and AC was the biological father of AMC and TDC.
On a date unknown between 28 February 2007 and 28 April 2007, the appellant and AC engaged in fellatio in a bedroom at the home of NC. The act of fellatio occurred in the presence of AMC (who was then aged 4) and TDC (who was then aged 2).
The appellant was not charged with the offences until 2019.
At the trial, NC was the only State witness who gave evidence in relation to the charged offences against the appellant. NC said in evidence that she walked past the bedroom and saw AC sitting on the edge of the bed without pants. The appellant was kneeling in front of him and giving him oral sex. AMC and TDC were playing on the floor of the bedroom. NC gave evidence, without objection, that she did not know whether the children were aware of what was happening (ts 155 ‑ 156).
Neither AMC nor TDC gave evidence in relation to the offending charged in counts 1 and 2.
It is convenient to deal, first, with the application for bail made by the appellant in the sentence appeal.
The appellant proposes to rely on two grounds of appeal in the sentence appeal. Ground 1 alleges that the sentence of 15 months' immediate imprisonment imposed for each offence is manifestly excessive as to type and length. Ground 2 alleges that the trial judge erred in being positively satisfied that a suspended or conditionally suspended term of imprisonment was not appropriate.
The trial judge found that the appellant's offending was serious because she had performed the sexual act knowingly in front of her children and had thereby deliberately exposed them 'to being capable of observing that act' (ts 340). Her Honour did not find, and her Honour could not have found, that the children were aware of what was happening.
At the time of the offending the appellant was aged 27. She was aged 41 at the time of sentencing.
Prior to being charged with the offences in 2019, the appellant had been in a 20 year relationship with AC. The appellant and AC together have six children. When she was sentenced, the appellant was the protected person under a violence restraining order made against AC. However, the trial judge noted in her sentencing remarks that the appellant had visited AC, on at least one occasion, while he had been remanded in custody. The appellant described AC as emotionally and verbally abusive and controlling of her.
In 2010 the four eldest children of the appellant and AC were removed from their care by the Department of Communities Child Protection and Family Support (the Department). The appellant was the sole carer of the two youngest children until she was charged with the offences in 2019. When she was charged with the offences the Department removed the two youngest children from her care. Both of the two youngest children, one of whom is now aged 4 and the other of whom is now aged 2, were subject to a protection order. Since the two youngest children were removed from her care, the appellant has been participating in psychological counselling and a parent programme with the Department. She has supervised contact with her two youngest children once a week. Prior to being sentenced, the appellant had attended 10 psychological counselling sessions, 3 parent education sessions and had also engaged in financial counselling.
In 2001 the appellant was diagnosed with Post Traumatic Stress Disorder. The appellant was sexually abused as a child by her older brother for a number of years. In 2002 and again in 2004 the appellant suffered from post‑natal depression. When she was sentenced, the appellant was suffering anxiety and depression for which she had been prescribed medication through a mental health care plan.
The appellant completed year 12 at school. Later, she obtained a number of certificates for courses she completed as a young adult. At the time of sentencing the appellant was unemployed. She had been dismissed from her previous employment as an enrolled nurse because of her convictions. She hopes to retrain in the construction industry.
The appellant continues to deny her offending. The author of the pre‑sentence report said that it was therefore difficult to ascertain whether the appellant had any level of insight or remorse in relation to the offending.
The appellant had a prior criminal record and consequently was not a person of prior good character for sentencing purposes. However, her previous offending was dealt with by the imposition of fines or community based orders. The appellant had not committed any prior offences of a sexual nature. Since 2007, when the offences in question were committed, the appellant's offending has been limited to three minor traffic offences.
The trial judge said that the matters of mitigation for the appellant included the counselling she had undertaken and also the traumas she had experienced in her childhood.
The trial judge considered whether the terms of imprisonment she imposed on the appellant should be suspended or conditionally suspended. Her Honour said that, ultimately, she was persuaded that it was not appropriate to do so. Her Honour said that the offences were serious and that the paramount sentencing factor was general deterrence in order to protect vulnerable children from abuse and exploitation. Her Honour was of the view that general deterrence would not be achieved if the appellant received a suspended or conditionally suspended sentence of imprisonment.
The principles relating to the granting of bail pending the determination of an appeal are well established. See, for example, Serukai v The State of Western Australia.[1]
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
I consider that the merits of the appellant's sentence appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail.
In particular, I consider that the appellant has a strongly arguable case that:
(a)a term of imprisonment to be served immediately was not within the range reasonably open to the trial judge on a proper exercise of her discretion; and
(b)a different sentence, namely suspended or conditionally suspended imprisonment, should have been imposed.
In my opinion:
(a)the strength of the appellant's case in the sentence appeal;
(b)the imposition on the appellant of a short term of immediate imprisonment; and
(c)the inability of the court to hear the appellant's appeals until March 2022, by which time the appellant will have been held in custody for more than 4 months,
constitute, in combination, exceptional reasons why she should not be kept in custody pending the determination of the sentence appeal.
It is unnecessary, in these circumstances, to consider the appellant's application for bail in the conviction appeal.
The appellant's application for bail in the sentence appeal should be granted. Her application for bail in the conviction appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
30 NOVEMBER 2021