Impicciatore v The State of Western Australia
[2020] WASCA 33
•20 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: IMPICCIATORE -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 33
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 23 AUGUST 2019
DELIVERED : 20 MARCH 2020
FILE NO/S: CACR 76 of 2018
BETWEEN: ALFRED JOHN IMPICCIATORE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 77 of 2018
BETWEEN: ALFRED JOHN IMPICCIATORE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of four counts of sexual offending against a child - Confessional statements - Whether statements voluntary - Breach of s 140 of the Criminal Investigation Act 2006 (WA) - Whether the primary judge erred in making an order under s 155 of the Criminal Investigation Act permitting the State to rely upon the confessional statements
Criminal law - Appeal against sentence - Whether the trial judge made errors of fact in sentencing the appellant - Whether a miscarriage of justice occurred as a consequence of defence counsel's alleged failure to make submissions in accordance with the appellant's instructions - Manifest excess - Totality
Legislation:
Bail Act 1982 (WA), s 51(1)
Criminal Appeals Act 2004, s 39, s 40
Criminal Code (WA), s 321(2)
Criminal Investigation Act 2006 (WA), s 137, s 138, s 140, s 154, s 155
Criminal Procedure Act 2004 (WA), s 98
Result:
CACR 76 of 2018: conviction appeal
Application for an extension of time within which to appeal granted
Appellant's applications in the appeal for leave to adduce additional evidence in the appeal dismissed
Leave to appeal refused
Appeal dismissed
CACR 77 of 2018: sentence appeal
Application for an extension of time within which to appeal granted
Appellant's application in the appeal for leave to adduce additional evidence in the appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 76 of 2018
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 77 of 2018
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Beamish v The Queen [2005] WASCA 62
C v C [1972] 3 All ER 577
C v The State of Western Australia [2006] WASCA 261
CDJ v VAJ (No. 2) [1998] HCA 67; (1998) 197 CLR 172
Clarke v The State of Western Australia [2018] WASCA 14
Cramphorn v Bailey [2014] WASCA 60
Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440
Director of Public Prosecutions v MD [2010] VSCA 233; (2010) 29 VR 434
DPJB v The State of Western Australia [2010] WASCA 12
Emery v The State of Western Australia [2007] WASCA 135
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Gedeon v The Queen [2013] NSWCCA 257; (2013) 237 A Crim R 326
Greenland v The State of Western Australia [2017] WASCA 83
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huggins v The State of Western Australia [2018] WASCA 61
JJR v The State of Western Australia [2018] WASCA 51
Kabambi v The State of Western Australia [2019] WASCA 44
Kadir v The Queen [2020] HCA 1
Kelly v The State of Western Australia [2017] WASCA 221
Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
McDermott v The King [1948] HCA 23; (1948) 76 CLR 501
McNally v The State of Western Australia [2019] WASCA 93
Menmuir v The State of Western Australia [2018] WASCA 13
MHE v The State of Western Australia [2019] WASCA 133
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Moore v The State of Western Australia [2019] WASCA 35
R v Clark [2000] WASCA 229
R v Lee [1950] HCA 25; (1950) 82 CLR 133
Rinaldi v The State of Western Australia [2007] WASCA 53
Sanders v City of South Perth [2019] WASC 226
SCN v The State of Western Australia [2017] WASCA 138
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Fyffe [2018] WASCA 173
The State of Western Australia v Impiccatore [2017] WADC 144
The State of Western Australia v Prince [2011] WASCA 22
Thomas v The State of Western Australia [2019] WASCA 4
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Topuz v The State of Western Australia [2017] WASCA 186
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Walters v The State of Western Australia [2018] WASCA 3
Western Australia v Prince [2011] WASCA 22
Wright v The State of Western Australia [2019] WASCA 183
Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1
Contents
QUINLAN CJ
Introduction
Appeal against conviction - CACR 76 of 2018
The State's Application to Admit the Video Record of Interview
Statutory context
Evidence as to the appellant's arrest and detention
Stewart DCJ's reasons for decision
Ground 1 - Voluntariness
The application to adduce additional evidence
Ground 1 - Disposition
Ground 2 - Section 155 of the Criminal Investigation Act2006
The appeal against conviction should be dismissed
Appeal against sentence - CACR 77 of 2018
Background facts and sentencing remarks
Ground 3 - the finding that the appellant knew that the child was under the age of 16 years
Ground 4 - the finding that the appellant knew that the person who had arranged for him to have sex with the child was the child's father
Ground 5 - whether the appellant's counsel challenged the experts' reports
Grounds 1 and 2 - manifest excess and totality
Conclusion
BUSS P & MAZZA JA
Appeal against conviction: the appellant's application for an extension of time to appeal
Appeal against conviction: the State's case and the appellant's defence at the trial
Appeal against conviction: the appellant's electronically recorded interview with police
Appeal against conviction: the State's application pursuant to s 155 of the Criminal Investigation Act
Appeal against conviction: the grounds of appeal
Appeal against conviction: ground 1: Stewart DCJ's reasons
Appeal against conviction: ground 1: the appellant's application for leave to adduce additional evidence in the appeal
Appeal against conviction: ground 1: the appellant's submissions
Appeal against conviction: ground 1: the evidence before Stewart DCJ: its merits
Appeal against conviction: ground 1: the additional evidence sought to be adduced by the appellant in the appeal
Appeal against conviction: ground 2: Stewart DCJ's reasons
Appeal against conviction: ground 2: the appellant's submissions
Appeal against conviction: ground 2: the evidence before Stewart DCJ: its merits
Appeal against conviction: ground 2: the additional evidence sought to be adduced by the appellant in the appeal
Appeal against conviction: conclusion
Appeal against sentence: the grounds of appeal
Appeal against sentence: general principles applicable to grounds 1 and 2
Appeal against sentence: sentencing considerations in cases of sexual offending against a child
Appeal against sentence: the appellant's submissions
Appeal against sentence: ground 1: disposition
Appeal against sentence: ground 2: disposition
Appeal against sentence: conclusion
QUINLAN CJ:
Introduction
On 7 November 2017, the appellant, Alfred John Impicciatore, was convicted after trial of four counts of sexual penetration of a named child over the age of 13 years and under the age of 16 years on an unknown date between 6 March 2015 and 13 March 2015.
The trial, which was conducted by Herron DCJ without a jury, took place on 31 October 2017 and 1 November 2017.
The appellant's convictions were substantially based upon informal admissions made by him in the course of a video record of interview with police conducted on 14 May 2015 (the video record of interview). While the State relied upon other evidence confirming or corroborating those admissions (such as the appellant's DNA found on a used condom wrapper), it is clear that the findings of the learned trial judge that the appellant was guilty of each charge beyond reasonable doubt were based upon the appellant's admissions.[1]
[1] The State of Western Australia v Impicciatore [2017] WADC 144 (trial reasons) [101] - [116].
Briefly summarised, the facts of the offences were as follows.[2]
[2] The following summary is taken from the learned trial judge's sentencing remarks (BAB 5 - 6).
On a Friday in March 2015 (either 6 or 13 March 2015), the appellant visited a house in Butler where the child lived with her father. At the time the child was 13 years of age.
The child's father told the appellant that he (the father) had a sexual relationship with the child. The father suggested to the appellant that he could also have sex with the child at the same time as the father.
The appellant and the child's father entered the bedroom of the premises together, where the child was already lying naked on the bed. Both the appellant and the father undressed and lay on either side of the child. The father told the child what to do.
At the father's direction, the child sat on top of the appellant and he inserted his penis into her vagina, and had intercourse with her for about 10 minutes. This conduct constituted count 1.
The child then got off the appellant and fellated him (that is, sucked his penis) while the appellant performed cunnilingus on her (that is, licked her vagina). This conduct constituted counts 2 and 3. During this time the father continued to fondle the child's breasts and vagina.
Finally, the appellant and the child lay on their sides and the appellant again penetrated the child's vagina with his penis and continued to have intercourse with her for about 10 minutes before ejaculating. The appellant was wearing a condom. This conduct constituted count 4.
On 26 March 2018, Herron DCJ sentenced the appellant to a total effective sentence of 9 years and 6 months imprisonment. The individual sentence for each offence were:
(a)3 years and 6 months imprisonment for count 1;
(b)4 years imprisonment for count 2;
(c)4 years imprisonment for count 3; and
(d)5 years and 6 months imprisonment for count 4.
The sentences for counts 1 and 4 were ordered to be served cumulatively. The sentences imposed in respect of counts 2 and 3 were ordered to be served concurrently with each other and concurrently with the sentence imposed on count 4. In addition, the appellant was ordered to serve a sentence of 6 months imprisonment cumulatively upon the sentences imposed on counts 1 and 4, in respect of a conviction for breach of bail.
The facts in relation to the offence of breach of bail, to which the appellant pleaded guilty, were that the appellant had been released on bail to appear at his trial in District Court on 22 May 2017. The appellant failed to appear on that date and a warrant was issued for his arrest. He was arrested in New South Wales on 26 May 2017 and extradited back to Western Australia. As noted above, the trial was ultimately able to proceed on 31 October 2017 and 1 November 2017.
The term of imprisonment was backdated to 7 October 2016 to take into account the time that the appellant had already spent in custody. His Honour made an order for eligibility for parole.
The appellant appeals both his conviction and sentence.
The appeal against conviction challenges the admission into evidence of the video record of interview, without which the appellant's convictions could not be sustained.
The appeal against sentence, in addition to alleging express error, alleges that the individual sentences were manifestly excessive and that the total effective sentence infringed the totality principle.
Both the appeal against conviction and the appeal against sentence were commenced out of time, by approximately three weeks. The appellant, who was unrepresented throughout the appeal, sought an extension of time within which to appeal on the basis that he had been waiting for a grant of legal aid and an opinion as to the prospects of appeal. In those circumstances, I would grant the extension of time in relation to each appeal.
For the reasons that follow, however, the appeals must be dismissed.
Turning first to the appeal against conviction.
Appeal against conviction - CACR 76 of 2018
Prior to the trial, by application dated 12 January 2017, the State applied for an order, pursuant to s 155(2) of the Criminal Investigation Act 2006 (WA), to admit the entirety of the video record of interview. The State's application was necessary because, for the reasons identified below, parts of the video record of interview (including those parts containing the principal admissions) were otherwise inadmissible, they having been obtained contrary to the requirements of the Criminal Investigation Act 2006, and in particular, the requirements of s 140 of that Act.
The admissibility of the video record of interview was the subject of a pre-trial hearing conducted before Stewart DCJ on 19 April 2017 pursuant to s 98(2)(a) of the Criminal Procedure Act 2004 (WA).
On 21 April 2017, Stewart DCJ concluded that the video record of interview should be admitted, and in particular that:
(a)the video record of interview was given voluntarily;[3] and
(b)the desirability of admitting the video record of interview outweighed the undesirability of admitting the evidence because of the contravention of the Criminal Investigation Act2006.[4]
[3] Ts 201 (21 April 2017).
[4] Ts 202 (21 April 2017).
The appeal against conviction challenges both of these conclusions. There are two grounds of appeal, namely that:[5]
(a)'the learned judge erred both in law and in fact, and there was a miscarriage of justice, when the judge failed to exclude as involuntary the appellant's electronic record of interview' (ground 1); and
(b)'the learned judge erred both in law and in fact, and there was a miscarriage of justice, when the judge admitted into evidence under s 155(2) of the Criminal Investigation Act2006 the appellant's electronic record of interview' (ground 2).
[5] The appellant, who was unrepresented, was given leave to amend the grounds of his appeal and the appellant's case shortly prior to the hearing of the appeal.
The appeal against conviction is, accordingly, confined to challenges to the findings of Stewart DCJ on 21 April 2017.
In addition to the evidence adduced before her Honour on 19 April 2017, the appellant applied for leave to adduce additional evidence on the appeal. While there were a series of such applications, all of which were referred to the hearing of the appeal, ultimately the appellant only sought to admit portions of an affidavit sworn by him on 13 July 2018[6] and an affidavit sworn by him on 26 July 2019.[7] I will return to that application later.
The State's Application to Admit the Video Record of Interview
[6] Being paragraphs [4] (save for the final sentence), [5] and [11] - [17] (see [58] below); Appeal ts 22.
[7] Appeal ts 20 - 21.
As noted above, the State accepted that parts of the video record of interview (including those parts containing the principal admissions) were obtained in contravention of the Criminal Investigation Act 2006.
Statutory context
The relevant provisions of the Criminal Investigation Act 2006 are contained in s 140, which relevantly provides:
140.Detention period for arrested suspects
(1)In this section -
arrested suspect has the meaning given to that term by section 139;
senior officer means -
(a)in the case of an arrested suspect who has been arrested by a police officer - a police officer who is, or is acting as, a sergeant or an officer of a rank more senior than a sergeant;
…
who is not involved in the investigation of any offence that the suspect is suspected of having committed.
(2)For the purposes of this section, the detention of an arrested suspect is justified if the detention -
(a) is for a purpose referred to in section 139(2); and
(b)is for a period that is reasonable having regard to the factors in section 141.
(3)Subject to subsection (2), the detention of an arrested suspect -
(a)must not exceed 6 hours from the arrest of the suspect unless a further period has been authorised under subsection (4)(b); and
…
(4)At any time during the 6 hours immediately following a suspect's arrest on suspicion of having committed an offence -
(a)an officer involved in investigating the offence may apply to a senior officer for an authorisation under paragraph (b); and
(b)on such an application, the senior officer may authorise the detention of the suspect for a further period of not more than 6 hours if the officer is satisfied that detention of the suspect for the further period is justified.
(5)If under subsection (4)(b) a senior officer authorises the detention of an arrested suspect for a further period -
(a)the senior officer must make a written record of the authorisation and -
(i)the name or a description of the arrested suspect to whom it relates; and
(ii)the further period authorised; and
(iii)the date and time of the authorisation; and
(iv)the reasons for the authorisation; and
(b)if practicable the senior officer must give the applicant a copy of the written record; and
(c)the further period commences at the end of the 6 hours immediately following the suspect's arrest; and
(d)no senior officer can give another authorisation under subsection (4)(b).
Section 154(2) of the Criminal Investigation Act 2006 makes the following provision in relation to 'evidence obtained improperly':
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -
(c)the person does not object to the admission of the evidence, or
(d)the court decides otherwise under section 155 …
Section 155, in turn, provides:
155. Inadmissible evidence, court may allow admission
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account -
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence -
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission.
In light of these provisions, the evidence in relation to the appellant's detention giving rise to the State's application before Stewart DCJ may be briefly summarised.
Evidence as to the appellant's arrest and detention
In the hearing before Stewart DCJ, the State called evidence from two witnesses, Detective Sergeant John Patrick McTernan and Detective Senior Constable Natalie Wynen. The appellant, who was represented at the hearing, did not give evidence.
The following matters surrounding the appellant's arrest and detention are uncontroversial.
The appellant was arrested by Detective Sergeant McTernan at 4.20pm on 14 May 2015.[8] The appellant was, from that time onwards, an 'arrested suspect' for the purposes of s 140 of the Criminal Investigation Act 2006.
[8] Ts 31 (19 April 2017).
In those circumstances, the effect of s 140(3)(a) of the Criminal Investigation Act 2006 was such that the appellant's detention could not extend beyond 10.20pm on 14 May 2015 (i.e. 6 hours), unless a further period was authorised under s 140(4)(b).
The video record of interview was commenced at 7.47pm on 14 May 2015 (i.e. within the 6 hours prescribed by s 140(3)(a)). The interview was conducted by Detective Senior Constable Wynen, together with Detective Senior Constable Ryan Edmonds.[9]
[9] Video record of interview (Exhibit 2 in the trial before Herron DCJ). A transcript of the video record of interview appears at BAB 93 - 155.
During a break in the video record of interview, between 9.16pm and 9.46pm,[10] Detective Senior Constable Wynen applied to Detective Sergeant McTernan to extend the detention of the appellant, including for the purposes of interviewing the appellant. The application, which was made pursuant to s 140(4)(a) of the Criminal Investigation Act 2006, bears the date and time 14 May 2015 at 9.41.49pm.[11]
[10] BAB 125.
[11] Exhibit 1 in the hearing before Stewart DCJ.
Detective Sergeant McTernan purported to allow the application made to extend the appellant's detention and signed a 'senior officer authorisation', pursuant to s 140(4) of the Criminal Investigation Act 2006. The 'senior officer authorisation' bears the date and time 14 May 2015 at 9.43.20pm and provided for a further 6 hours of detention.[12] The stated reason for the authorisation was that 'the suspect is required to be further detained for an additional time period for interview and assessment of evidence'.
[12] Exhibit 2 in the hearing before Stewart DCJ.
The video record of interview resumed at 9.46pm[13] and continued until 10.45pm.[14]
[13] BAB 125.
[14] BAB 155.
The State accepted, as was the case, that Detective Sergeant McTernan was not a 'senior officer' for the purposes of s 140 of the Criminal Investigation Act 2006. While he was of the required rank (sergeant or above), Detective Sergeant McTernan was not an officer 'who is not involved in the investigation of any offence that the suspect is suspected of having committed'. In particular, as noted above, Detective Sergeant McTernan was the officer who had arrested the appellant earlier in the day. He also agreed, in cross-examination, that he remained in a supervisorial role over Detective Senior Constable Wynen during the entirety of the period prior to signing the 'senior officer authorisation'.[15]
[15] Ts 46 (19 April 2017).
As Detective Sergeant McTernan was not a 'senior officer' for the purposes of s 140 of the Criminal Investigation Act 2006, his purported extension of the appellant's detention was ineffective. That detention therefore became unlawful after 10.20 pm.
As it happens, all of the substantive admissions by the appellant during the video record of interview occurred after 10.20pm (between 10.23pm and 10.31pm).[16] The evidence of the admissions in the video record of interview were, therefore, not admissible against the appellant, unless an order was made under s 155 of the Criminal Investigation Act 2006.
[16] BAB 144 - 147.
I also observe, in passing, that, following the video record of interview, the appellant also signed a written witness statement. While the State had initially made an application to have that statement admitted into evidence, that application was ultimately withdrawn[17] (although the appellant placed some reliance upon it in his appeal).
[17] Ts 23 (19 April 2017).
At the hearing before Stewart DCJ both Detective Sergeant McTernan and Detective Senior Constable Wynen were cross‑examined in relation to their actions in purporting to seek and approve, respectively, the extension of the appellant's detention. In that regard, they were cross-examined in relation to the steps they took, as well as their knowledge of, and training in, the requirements of the Criminal Investigation Act 2006.
It is not necessary to recite that evidence in detail. It suffices to observe that both Detective Sergeant McTernan and Detective Senior Constable Wynen gave evidence to the effect that their failure to comply with the requirements of the Criminal Investigation Act 2006 was not deliberate and was the result of an oversight or ignorance of those requirements.[18]
Stewart DCJ's reasons for decision
[18] Ts 33, 58, 73 (McTernan), 76 (Wynen) (19 April 2017).
Stewart DCJ commenced her reasons for decision by summarising the evidence. Her Honour confirmed that she had carefully reviewed the video record of interview and then set out salient parts of the evidence of Detective Sergeant McTernan and Detective Senior Constable Wynen.
Having identified the relevant legislative provisions and relevant aspects of the decision of this Court in Wright v Western Australia[19], her Honour proceeded to separately consider each of the mandatory considerations set out in s 155(3) of the Criminal Investigation Act 2006 (noting that the appellant had also raised, as a separate matter, the voluntariness of the video record of interview).
[19] Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1 (Wright v Western Australia).
As to those matters, her Honour found:
(a)that the appellant objected to the admission of the evidence (s 155(3)(a));[20]
[20] Ts 197 (21 April 2017).
(b)that the offences in respect of which the evidence was relevant were serious (s 155(3)(b));[21]
[21] Ts 197 (21 April 2017).
(c)as to the seriousness of the contravention of the Criminal Investigation Act 2006 (s 155(3)(c)):[22]
[22] Ts 197 (21 April 2017).
In my view, the contravention of the Criminal Investigation Act is serious. The unlawful detention of an accused person is a serious matter. In my view, it is not appropriate to rank contraventions o[f] the Criminal Investigation Act. Under the provisions of the Criminal Investigation Act as I have outlined, detention for investigation is authorised for six hours, plus a further six hours on the senior officer's approval, plus a further eight hours on a magistrate's authorisation.
However, I find the duration of the unlawful detention is a relevant consideration. In this case the admissions were made within 12 minutes of the expiry of the lawful detention, and the video record of interview was completed within 25 minutes of the expiry of the lawful detention.
(d)in relation to the actions of Detective Senior Constable Wynen (s 155(3)(d)), that 'she was careless' and 'made an honest mistake';[23]
(e)in relation to Detective Sergeant McTernan (s 155(3)(d)), that his 'failure to appreciate the provisions of the Criminal Investigation Act 2006 was careless';[24]
(f)in relation to the conduct of the police generally, that:[25]
[it] did not involve a deliberate disregard for the law. Moreover, the contravention arose only from mistake. Thirdly, their conduct was not a deliberate cutting of corners …
In all the circumstances, I am of the view that the conduct of the two officers was not reckless. The officers were honestly mistaken as to the requirements of the legislation. Their conduct was not intentional.
and;
(g)that the video record of interview was of significant probative value (s 155(3)(e)).[26]
[23] Ts 199 (21 April 2017).
[24] Ts 199 (21 April 2017).
[25] Ts 200 (21 April 2017).
[26] Ts 201 (21 April 2017).
Stewart DCJ considered the voluntariness of the video record of interview under the rubric of s 155(3)(f) of the Criminal Investigation Act 2006 (any other matter the court thinks fit). In that regard, her Honour said:[27]
In my view, the confession was voluntarily given by the accused. The accused was appropriately cautioned. I am satisfied that the accused understood the questions asked of him and he answered the questions appropriately. I consider the conduct of Detective Wynen was not overbearing.
The tone of her questions was appropriate. The accused was given time to answer questions and he appears to be reflective before answering the questions. In my view, there was no undue pressure placed on him to answer questions.
At times he answered, 'No comment' … There is nothing to suggest the accused's will was overborne …
…
The accused was given three breaks during the record of interview between 8.16 pm and 8.21 pm, between 8.33 pm and 8.52 pm and between 9.16 pm and 9.46 pm. The accused asked for two of those breaks and during the last break, he was left alone with paper and pen.
He made notes on the paper. For the critical period of 12 minutes from 10.20 pm, the accused continued to answer the questions asked of him. He was given time to consider his answers. I find his answers were frank and detailed.
There is no suggestion that the cogency of this evidence is affected by the breach of the Criminal Investigation Act. There is no suggestion that the evidence is otherwise unreliable. In my view, it would be open for a jury to act upon the confession they believe is true.
[27] Ts 201 - 202 (21 April 2017).
Her Honour concluded:[28]
Having considered the factors I have set out and the circumstances of this case, I conclude that the desirability of admitting the video record of interview outweighs the undesirability of admitting the evidence because of the contravention of the Criminal Investigation Act.
Taking all of the factors into account, I consider that the evidence of the video record of interview should be admitted pursuant to section 155(2).
Ground 1 - Voluntariness
[28] Ts 202 (21 April 2017).
Ground 1 contends that Stewart DCJ erred both in law and in fact in failing to exclude as involuntary the video record of interview.
It is a fundamental common law requirement that an admission or confessional statement must be voluntary. An admission by an accused person is only admissible in evidence if it was made voluntarily, that is, made in the exercise of a free choice to speak or be silent.[29] In the classic formulation of Dixon J in McDermott v The King:[30]
This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.
[29] MacPherson v The Queen[1981] HCA 46; (1981) 147 CLR 512, 519 (Gibbs CJ & Wilson J); Kelly v Western Australia [2017] WASCA 221 [34] (Buss P, Beech JA & Hall J); Wright v Western Australia [44] (McLure P, Buss JA agreeing).
[30] McDermott v The King[1948] HCA 23; (1948) 76 CLR 501, 511 (Dixon J). See also Kelly v Western Australia [2017] WASCA 221 [35] (Buss P, Beech JA & Hall J); R v Lee[1950] HCA 25; (1950) 82 CLR 133, 149 (Latham CJ, McTiernan, Webb, Fullagar & Kitto JJ); Tofilau v The Queen[2007] HCA 39; (2007) 231 CLR 396 [10] ‑ [13] (Gleeson CJ), [45], [55] ‑ [64] (Gummow & Hayne JJ), [123] (Kirby J), [245], (Callinan, Heydon & Crennan JJ).
The appellant's essential complaint in relation to Stewart DCJ's finding that the video record of interview was voluntary was difficult to discern. The appellant's written submissions, while making extensive reference to the applicable legal principles as to the issue of voluntariness, do not identify precisely in what way her Honour was alleged to have erred in concluding that the video record of interview was given voluntarily. In particular, those written submissions do not identify how it is alleged that the video record of interview was not made in the exercise of the appellant's free choice (or, put differently, how it was alleged that his will was overborne).
In his oral submissions, the appellant identified the following matters that he submitted made the video record of interview involuntary:[31]
(a)that he was 'arrested out in the street with [his] neighbours [present]';
(b)that he was taken into his residence where a search was conducted;
(c)that he was 'put on parade' over a period of time during which he was taken to another address in Scarborough; and
(d)that the police mislead him into thinking he was speaking to a lawyer while at the Child Abuse Squad headquarters.
[31] Appeal ts 35 - 36.
Needless to say, there was no, or very little, evidence of these matters before Stewart DCJ. The appellant did not give evidence in relation to the circumstances of his arrest before her Honour. And, while the appellant's counsel cross-examined Detective Sergeant McTernan and Detective Senior Constable Wynen in relation to the execution of the search warrant,[32] the fact that the appellant was taken to another address[33] and the fact that he was given the opportunity to call a lawyer,[34] none of those matters were suggested to have involved any impropriety or to have affected the appellant's free choice.
[32] Ts 41, 104, 110 (19 April 2017).
[33] Ts 116 - 117 (19 April 2017).
[34] Ts 108 (19 April 2017).
It is therefore necessary, in this context, to identify the additional evidence the appellant seeks to admit on the appeal.
The application to adduce additional evidence
In support of the appeal against conviction, the appellant sought leave to admit:
(a)parts of an affidavit sworn by him on 13 July 2018 (the July 2018 Affidavit); and
(b)an affidavit sworn by him on 26 July 2019 (the July 2019 Affidavit).[35]
[35] Appeal ts 19 - 21.
The parts of the July 2018 Affidavit sought to be adduced by the appellant are as follows:[36]
[36] Certain addresses and other identifying material have not been included in this extract.
4.1 week prior to my trial I submitted my letter of complaint to my then legal practitioner Mr John Hawkins to use the information provided by me at my trial. However, he did not use it and did not give me an explanation as to why he would not use critical information pertaining to my objection to the statement being involuntary and how it was improperly obtained. Except that he would not ask the court for an adjournment …
5.In the morning, at the commencement of my trial whilst I was in the holding cells below the District Court. Mr Hawkins had summoned me to the interview rooms to meet. He tabled a document and asked me to sign it. It said that he would contest the meth pipes and DNA evidence. However, at trial he did not contest either issues.
…
11.The Police had in fact, stoped [sic] recording at … Wembley. Detective Wynen did offer a promise of not to charge me with the possession of the 'meth pipes' in front of other officers in return for an induced statement. Then continued to record the rest of the search at … Wembley. As a registered builder any drug related criminal conviction could result in the revocation of my practitioners and contractors license.
12.The Police refused to allow me to contact my Family or friend stating that my 'landlord knows where you are' and I never had the opportunity to contact them prior or during nor after my arrest and interrogation.
13.Detective Wynen and her Officials then proceeded to … Scarborough to try and recover Miss [JR] private computer. However, she was not home at the time.
14. We then drove to the Stirling street Child abuse head quarters.
15.When we arrived, an officer gave me a phone number from his iphone. That number was Mr Neville Barber a legal practitioner. The Officer had retrieved that number from his iphone contacts list. The Police did not afford me the opportunity to contact a lawyer of my own free will from either the yellow or white pages directory.
16.Before the commencement of the video-audio recording at the police station the police did not revoke the promise held out to me prior to a statement being made. Approximately 45 minutes prior the allotted 6 hours to detain an arrested suspect for questioning had expired, the police executed an extension of time. However, it was not done in accordance with the CI Act s140(4). It was unlawful and improperly obtained.
17.When the police made me sign the written statement, they did not caution me and the statement was inadmissible.
I should note that, at the hearing of the appeal, the appellant did not refer to the alleged inducement referred to in paragraph 11 of the July 2018 Affidavit as one of the matters relied upon in support of ground 1. That was an allegation in relation to which there was no evidence at the appellant's trial or the hearing before Stewart DCJ. Nor was it put to Detective Senior Constable Wynen when she gave evidence at that hearing (or at the trial).
The July 2019 Affidavit also recounts the appellant's description of the events following his arrest, including the allegation that, while he was in a police vehicle outside a residence at Scarborough, 'one of the relevant Officers pointed directly at myself sitting in the police vehicle'.[37]
[37] July 2019 Affidavit, [18].
In addition, the July 2019 Affidavit also describes events that occurred at the Child Abuse Squad, including the appellant's telephone call to a person identified as a lawyer, Dr Barber. According to the July 2019 Affidavit, the person advised the appellant that he was not obliged to make a statement or participate in the video record of interview.[38]
[38] July 2019 Affidavit, [31].
The July 2019 Affidavit goes on to record, and attach, correspondence between the appellant and Dr Barber in 2019. That correspondence culminated in a letter from Barber Legal in March 2019, to the effect that Dr Barber does not have a recollection of the conversation.[39] From this unremarkable fact, the appellant makes the remarkable submission that he was misled by the police and that it wasn't actually Dr Barber who gave him the legal advice on 14 May 2015.[40]
[39] July 2019 Affidavit, [39].
[40] Appeal ts 29 - 32.
The balance of the July 2019 Affidavit annexes various requests to the authorities for further information and responses to those requests. Those matters do not take the circumstances of the appellant's arrest, detention and interview any further.
Ground 1 - Disposition
There is no merit in this ground of appeal.
It is apparent from the reasons given by Stewart DCJ that her Honour correctly identified the relevant test for whether the appellant had voluntarily participated in the video record of interview. Her Honour was satisfied that the appellant's confession was given voluntarily and that his will was not overborne. In that regard, her Honour referred to the content of the video record of interview itself, being satisfied that the appellant was cautioned and understood the questions asked of him and that Detective Senior Constable Wynen's conduct was not overbearing, her tone was appropriate and that no undue pressure was placed on the appellant to answer questions.
I have had the opportunity to view the video record of interview myself. Not only were Stewart DCJ's findings in this respect open to her Honour, they were, in my view, clearly correct. Detective Senior Constable Wynen conducted the video record of interview calmly, respectfully and patiently. As the gravity of the appellant's situation sinks in, he does present, at times, to be uncomfortable or stressed. There is, however, nothing in his presentation in the video record of interview to suggest that he was not answering the questions of his own free choice.
Nor was there any other evidence before Stewart DCJ that could have supported a finding of involuntariness, such as evidence of pressure or inducements offered prior to the video record of interview.
As to the appellant's application to admit the additional evidence in the July 2018 Affidavit and the July 2019 Affidavit, I would also refuse that application.
In that regard, it is well settled that, in exercising its discretion whether to admit additional evidence, this Court is ultimately concerned with whether it is just, in all of the circumstances, to admit the further evidence on appeal.[41] In that context, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence remain relevant to the exercise of the discretion and to the determination of whether there was a miscarriage of justice, although the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles.[42]
[41] Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460 [114] (Buss JA, Steytler P agreeing), [9] (Pullin JA).
[42] Huggins v The State of Western Australia [2018] WASCA 61 [387] - [397] (Buss P, Mazza & Beech JJA).
In that context, where an accused has been convicted, an appellate court will not allow an appeal on the basis of new (as distinct from fresh) evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[43]
[43] Huggins v The State of Western Australia [390] (Buss P, Mazza & Beech JJA).
The additional evidence sought to be adduced by the appellant is not fresh evidence. Clearly, all of the matters that the appellant now seeks to raise, by way of that evidence, concerning his arrest, detention and interview could, with reasonable diligence, have been adduced at the hearing before Stewart DCJ (or at his trial before Herron DCJ). Not only did the appellant not give evidence in relation to any of those matters, they were not the subject of cross-examination of Detective Senior Constable Wynen.
Furthermore, insofar as the additional evidence is new evidence, it could not establish that the appellant is innocent or raise such a doubt that the Court is satisfied that the appellant should not have been convicted. The evidence is not exculpatory; it is simply evidence that might have been relevant to the admissibility of his confessional statements.
Moreover, it is difficult to see that any of the matters identified by the appellant at [54] above, either alone or collectively, could support a finding that the admissions in the video record of interview were made involuntarily.
For example, the fact that the appellant was arrested and, for a period, detained, in view of members of the public, is not an inducement or pressure. It could in no way be said to have affected the exercise of the appellant's free choice to participate in the video record of interview.
The appellant's allegation that the police mislead him into thinking he was speaking to a lawyer while at the Child Abuse Squad headquarters is particularly curious in this context. Not only is there no reasonable basis for the suggestion that the police officers did so mislead the appellant into thinking he was speaking to a lawyer, according to his own evidence, the person to whom the appellant spoke gave him the correct advice; namely, that it was up to the appellant whether he participated in an interview. That evidence therefore supports, rather than undermines, the voluntariness of the confessional statements.
For these reasons, in my view, it is not in the interests of justice, in all of the circumstances, to admit the further evidence on appeal in support of ground 1.
For completeness, while it was not pursued in submissions, I confirm that this conclusion also applies to the evidence of the alleged inducement referred to in paragraph 11 of the July 2018 Affidavit. It is not fresh evidence. It was not put to Detective Senior Constable Wynen when she gave evidence at the hearing before Stewart DCJ. Were there a basis for such an allegation, it could readily have been put by experienced counsel who appeared on that occasion. It was not.
Ground 1 is not made out.
Ground 2 - Section 155 of the Criminal Investigation Act2006
Ground 2 alleges that Stewart DCJ erred in both law and fact, and that there was a miscarriage of justice, in admitting the video record of interview under s 155(2) of the Criminal Investigation Act2006.
The court's power to admit evidence under s 155(2) of the Criminal Investigation Act2006 involves the balancing of a variety of considerations in determining whether the court is 'satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence'.
An issue arises as to whether that balancing exercise involves the exercise of a 'discretion', in the sense that, on appeal, it is necessary to demonstrate an error in the House v The King sense[44] or whether the balancing exercise admits of 'a unique outcome'.[45]
[44] As to which see House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
[45] See Kadir v The Queen [2020] HCA 1 (Kadir v The Queen) [9], (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ).
That issue has been described as 'not finally settled' in the context of similar provisions in s 138 of the Evidence Act 1995 (NSW) and its counterparts in other States (the Uniform Evidence Acts), although it has been assumed in a number of cases that it is necessary to demonstrate a House v The King error.[46] The High Court in Kadir v The Queen found it unnecessary to determine that issue.[47]
[46] See Director of Public Prosecutions v MD[2010] VSCA 233; (2010) 29 VR 434 [27] - [30] (Maxwell P, Nettle and Harper JJA); Director of Public Prosecutions v Marijancevic[2011] VSCA 355; (2011) 33 VR 440 [13] - [14] (Warren CJ, Buchanan and Redlich JJA); Gedeon v The Queen[2013] NSWCCA 257; (2013) 280 FLR 275 [174] - [178] (Bathurst CJ, Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing).
[47] Kadir v The Queen [9] (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ).
My preliminary view is that s 155(2) of the Criminal Investigation Act2006 does involve an exercise of discretion in relation to which the principles in House v The King are engaged for the purposes of appellate review. In that regard, in addition to the reasoning of the Court of Appeal in Victoria in Director of Public Prosecutions v MD,[48] with which I agree, s 155(2) of the Criminal Investigation Act2006 is in materially different terms to the provisions of s 138 of the Uniform Evidence Acts.
[48] Director of Public Prosecutions v MD[2010] VSCA 233; (2010) 29 VR 434 [27] - [30] (Maxwell P, Nettle and Harper JJA).
In that regard, unlike s 138 of the Uniform Evidence Acts, s 155(2) uses the word 'may' (generally indicating a discretion) and the court's power is enlivened upon its 'satisfaction' as to the relevant state of affairs (i.e. the desirability of admitting the evidence).[49]
[49] As to which see, in a different context, the cases discussed in Sanders v City of South Perth [2019] WASC 226 [101] - [105] (Quinlan CJ).
Nevertheless, as the High Court has left open the issue, I will not express a final view on it. For the reasons that follow, in my view, whether a House v The King error is required, or whether the application of s 155(2) requires a unique outcome to which the 'correctness standard' applies,[50] Stewart DCJ made no error in applying the section and admitting the video record of interview into evidence.
[50] See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [41] - [43] (Gageler J)
As in the case of ground 1, the appellant's precise complaints in relation to Stewart DCJ's decision to admit the video record of interview were difficult to discern. Nevertheless, the following contentions may be distilled from the particulars to ground 2 and the appellant's written and oral submissions:
(a)that her Honour erred by failing to take into account (and prevented the appellant's counsel from leading evidence in relation to) circumstances relevant to the decision (particulars (b) and (c));
(b)that her Honour failed to consider circumstances relevant to whether the contravention of the Criminal Investigation Act2006 was intentional or reckless (particular (d));
(c)that her Honour failed to have regard to the potential unfairness to the appellant in admitting the video record of interview (particular (e)); and
(d)that her Honour's assessment of the applicability and weight of the considerations under s 155(3) fell into error (particular (f)).
I will deal with each of these contentions in turn.
The first concerns the appellant's submission that Stewart DCJ 'closed her Honour's mind' and prevented his counsel from eliciting evidence as to certain matters.
To understand this submission, the issues before her Honour on 19 April 2017 must be put in context. As noted above, in addition to the application to admit the video record of interview, the State had also initially sought to have admitted into evidence a written statement made by the appellant after the video record of interview. That application was withdrawn at the commencement of the hearing before Stewart DCJ.[51]
[51] Ts 23 (19 April 2017).
In that context, the appellant's counsel submitted that evidence of breaches of the Criminal Investigation Act2006 that occurred after the video record of interview were relevant to her Honour's decision whether to admit the evidence, and in particular, the continuation of the unlawful detention after the completion of the video record of interview (during which the appellant provided the witness statement). According to the appellant's submissions, that period of unlawful detention continued until 1.08am on 15 May 2015.[52]
[52] Ts 30 (19 April 2017).
The learned primary judge ruled that she was only concerned with the admissibility of the video record of interview and not with the statement, as it was not sought to be adduced. In so ruling, her Honour was implicitly ruling that the evidence of the continuing detention after the completion of the video record of interview was not relevant.
In this regard, in my view, Stewart DCJ was clearly correct. The relevant inquiry, for the purposes of s 155 of the Criminal Investigation Act2006, is focussed upon the admission of evidence obtained in 'contravention of this Act'. That inquiry will therefore be directed to the particular 'evidence' sought to be adduced and 'any contravention … in obtaining the evidence'. In the present case, it was only evidence of circumstances relevant to the investigators having 'obtained' the video record of interview that could inform that inquiry.
For this reason, in my view, the appellant's submission that Stewart DCJ erred in failing to have regard to what he described as the 'Unconsidered UD Period' (from 10.31pm [the final admission] to 1.08am)[53] must be rejected. Her Honour did not act on a wrong principle or fail to have regard to relevant material in confining her consideration to the period up to the end of the video record of interview.
[53] Particular (c)(i).
This did not mean that her Honour confined the appellant's counsel to eliciting evidence only in relation to the video record of interview itself. Her Honour did not do so and it is clear that counsel did not consider herself so confined. The cross-examinations of Detective Sergeant McTernan and Detective Senior Constable Wynen, for example, ranged across a wide time period leading up to the video record of interview, including the appellant's arrest and other inquiries conducted during 14 May 2015. The cross-examination also dealt with the officers' training and experience with various processes under the Criminal Investigation Act 2006 prior to that day.
The appellant also submitted, in this context, that her Honour prevented counsel from adducing evidence of misconduct prior to the video record of interview. It will be apparent from what I have just said that her Honour did no such thing. The appellant's counsel had, and availed herself of, the opportunity to elicit evidence of the events prior to the contravention of the Criminal Investigation Act 2006.
Insofar as the appellant sought to rely upon the additional evidence in the July 2018 Affidavit and the July 2019 Affidavit in support of this ground, I am also of the view that it is not just, in all of the circumstances, to admit the evidence, for the reasons I gave in the context of ground 1. The evidence is not fresh evidence; nor could it establish that the appellant is innocent or raise such a doubt that the court is satisfied that the appellant should not have been convicted.
The second contention in support of ground 2 is that her Honour failed to consider circumstances relevant to whether the contravention of the Criminal Investigation Act2006 was intentional or reckless. The particulars, in this regard, refer to the following circumstances:
(a)the conduct of the relevant officers leading up to the video record of interview;
(b)the relevant officers' previous experience with the relevant processes under the Criminal Investigation Act2006; and
(c)the relevant officers' training the relevant processes under the Criminal Investigation Act2006.
Each of these matters were the subject of cross-examination by the appellant's counsel at the hearing before Stewart DCJ. Her Honour expressly referred to the evidence in relation to those matters in her reasons for decision.[54] There is no merit in the submission that her Honour failed to have regard to those matters.
[54] Ts 187 - 192 (21 April 2017).
There is, in any event, no basis for disturbing the learned primary judge's finding that the contravention of the Criminal Investigation Act2006 was not intentional or reckless and that it was the result of an honest mistake as to the requirements of the legislation.
Her Honour had the benefit of seeing and hearing Detective Sergeant McTernan and Detective Senior Constable Wynen give evidence and it was open to her Honour to accept their explanation of the circumstances of the contravention. As her Honour also observed in her reasons, Detective Constable Wynen had made an honest attempt to comply with the legislation when, being 'mindful of the expiration of the period of six hours for which the accused could be detained'[55] she sought authorisation for an extension.
[55] Ts 199 (21 April 2017).
Nor is there any basis for the contention that the learned primary judge failed to have regard to the potential unfairness to the appellant of admitting the video record of interview.
In one sense, of course, the whole balancing exercise in s 155 of the Criminal Investigation Act2006 is concerned with 'fairness'. That is, the various considerations identified in s 155(2) are a statutory codification of the very kind of considerations relevant to the common law discretion to exclude evidence on the grounds of unfairness.[56] This will be particularly so where, as in the present case, the only matter relied upon for excluding the evidence was a contravention of the Act.[57]
[56] Wright v Western Australia [185] - [188] (Blaxell J).
[57] Wright v Western Australia [48] (McLure P, Buss JA agreeing).
More specifically, it is clear that her Honour did have regard to the fairness of admitting the video record of interview, including by reference to the conduct of the officers and the reliability of the appellant's confessional statements.
Finally, there is no basis to conclude that the learned primary judge erred in the weight she afforded to the various considerations relevant to her decision whether to admit the video record of interview. On the contrary, in my view, the learned primary judge's decision to admit the video record of interview was clearly correct. As I have already observed, the interview with the appellant was conducted calmly, respectfully and patiently. As her Honour also noted, the appellant was given time to consider his answers and was frank and detailed in the answers that he gave.
The contravention of the Criminal Investigation Act2006 was an honest, albeit careless, mistake. In those circumstances, given the seriousness of the offences then being investigated and the probative value of the evidence of the video record of interview, it would have been remarkable for the learned trial judge not to have admitted that evidence. Insofar as whether the balancing test under s 155(2) admits of a unique outcome, in the present case that unique outcome was to admit the video record of interview into evidence.
Ground 2 is not made out.
The appeal against conviction should be dismissed
For the above reasons, in my view, there is no merit in either of the grounds of appeal against the appellant's conviction. Leave to appeal should be refused in relation to each ground and the appeal dismissed.
Appeal against sentence - CACR 77 of 2018
The individual sentences making up the total effective sentence of 9 years and 6 months imprisonment are set out at [11] to [12] above.
The grounds of appeal against sentence are as follows:
(i)The individual sentences were manifestly excessive.
(ii)The total effective sentence of 9 years and 6 months' imprisonment infringed the first limb of the totality principle.
(iii)The sentencing judge erred in fact in finding that the appellant knew when he had sex with the child that the child was under the age of 16 years.
(iv)The sentencing judge erred in fact in finding that the appellant when he had sex with the child that the person who had arranged for him to have sex with the child was the child's father.
(v)There was a miscarriage of justice in the sentencing of the appellant caused by the failure of defence counsel to make submissions to the sentencing judge on the expert reports in accordance with the appellant's instructions.
Before turning to the grounds of appeal, the further background facts and Herron DCJ's sentencing remarks may be briefly summarised.
Background facts and sentencing remarks
As reflected in the summary of the offences above, the offences committed by the appellant were committed in the presence, and with the active involvement of, the complainant's father.
The father's offending in relation to his daughter was not limited to that involving the appellant. Indeed, the father pleaded guilty to a total of 61 sexual offences involving his daughter and six other men (including the appellant) over a two-year period. He was ultimately sentenced to 22 years and 6 months imprisonment, a sentence that was upheld by this Court in SCN v Western Australia.[58]
[58] SCN v The State of Western Australia [2017] WASCA 138 (SCN v Western Australia).
The Court described SCN v Western Australia as being in a class of its own. And indeed it was. The nature and extent of the father's offending involving as it did the sexual servitude of his own daughter, exhibited a degree of sexual depravity that is beyond comprehension.
The offences for which the appellant was convicted formed part of that course of offending.[59] Each of the other men involved in the father's offending were charged with offences involving the complainant and each of them pleaded guilty to those offences. This context is significant because, while not sentencing the appellant as a co-offender, the learned sentencing judge gave careful consideration to the sentences imposed on each of the other offenders and the father.[60] In the circumstances, in my view, the learned sentencing judge was right to have regard to those sentences.
[59] The conduct involving the appellant constituted counts 12 to 19 of the offences committed by the father: SCN v Western Australia [16] - [19] (Buss P, Beech JA & Hall J).
[60] BAB 18 - 20.
It is not the case that the appellant was aware of the other offenders, or the offences they committed against the complainant. He was, however, aware of some of them.
In particular, as the sentencing judge found, the appellant was certainly aware that the child was being abused by her father. In the video record of interview, the appellant said that he observed the father having sexual intercourse with the complainant in the hours prior to his having sex with her. The appellant also described being shown (on the father's mobile phone) photographs of another man having sexual intercourse with the complainant.[61]
[61] BAB 134 - 135.
In his sentencing remarks, the learned sentencing judge, having summarised the facts of the offences, found that he was satisfied that the appellant knew that the child was under the age of 16 years of age when he had sex with her, that he had sex with her knowing it was unlawful and that he knew that she was being forced to engage in the activity by her father.[62]
[62] BAB 5.
The learned sentencing judge referred to the reports prepared by both a psychologist and a psychiatrist. In relation to the latter report, his Honour observed that, on the appellant's instructions, his counsel submitted that he denied much of the content of the report of the psychiatrist.[63]
[63] BAB 9.
His Honour was nevertheless satisfied that the matters reported by the psychiatrist were truly and accurately reported, observing that 'it may be that [the appellant] cannot admit the offending' to himself.[64]
[64] BAB 9.
As to the seriousness of the offending, the learned sentencing judge said:[65]
The victim of your offending [w]as a young girl aged only 13. You were aged 45. She'd only turned 13 a few months before the offending. You knew she was under the age of 16. From her child assessment interview she appears to be small in stature, you are much physically larger than her.
You engaged in sexual activity with a young girl, both knowing her young age and knowing she was being forced to participate in the activity and was being exploited by her father to do so. You knew she was extremely vulnerable.
You knew from what the father had told you that he was regularly having sex with her. You had sex with the girl when her father was also involved in the sexual activity with the girl. You witnessed the father having sex with the child, you were uncomfortable, I accept, with the circumstances but still willingly chose to engage in the sexual activity. You had a perverted sexual interest in young girls and you were unable to resist acting on that interest. You took advantage of a girl who was extremely vulnerable.
Your actions were depraved and were entirely for your own sexual gratification. You participated in the exploitation and took advantage of a clearly vulnerable, defenceless young girl in circumstances where you knew she was being forced into the activity by her father and you knew what you were doing was both unlawful and morally wrong. You sexually abused and were involved in the corruption of a young child.
Your offending, particularly by penetrating her vagina with your penis, are towards the upper end of the level of seriousness and depravity of such offending, that is sexual abuse of a young girl, but I accept there was no violence or threatened violence towards the child.
[65] BAB 8 - 9.
His Honour observed that the appellant had shown no remorse for his offending or acceptance of responsibility and that he had no empathy for his victim,[66] a matter that was emphasised by his denial that he had expressed regret and remorse to the psychiatrist.[67]
[66] BAB 9.
[67] BAB 13.
While no victim impact statement had been received from the child, his Honour noted that it was not difficult to believe that the consequences of the offending would have a long term effect on her mental health and emotional wellbeing.[68] His Honour recognised that while the appellant could not be held responsible for all of the consequences to the victim (given the broader pattern of offending), his offending had nevertheless played a part in what she was subjected to.[69]
[68] BAB 9.
[69] BAB 9.
The learned sentencing judge accepted, in mitigation, that the appellant's offending involved one course of conduct and that the appellant did not require the child to be cross-examined.[70] His Honour also accepted that the appellant's admissions to the police were a relevant matter of mitigation, notwithstanding that he had denied their truthfulness or reliability at trial.[71]
[70] BAB 10.
[71] BAB 10.
His Honour recounted the appellant's personal circumstances and life history.[72] The appellant was 48 years of age at the time of sentence and the learned sentencing judge summarised his relationship and work history.
[72] BAB 10 - 12.
The appellant had a history of illicit drug use and alcohol abuse, including having used methylamphetamine immediately prior to the offending. While the learned sentencing judge accepted that the use of methylamphetamine may have impaired the appellant's judgment at the time of the offending, his Honour was not satisfied that the appellant suffered from any psychiatric disorder which either explained or reduced his moral culpability.[73]
[73] BAB 16.
His Honour summarised the sentences imposed on the other men who offended against the complainant.[74] Those sentences were:
(a)Dawid Volmer: a total effective sentence of 10 years and 6 months imprisonment. Mr Volmer's offending was more serious than that of the appellant, Mr Volmer having offended on 3 separate occasions. Unlike the appellant, however, Mr Volmer pleaded guilty at the first available opportunity and received a 25% discount for his pleas of guilty and an additional 15% for providing a witness statement and offering to give evidence against the complainant's father;
(b)Benjamin Clarke: a total effective sentence of 3 years imprisonment. Mr Clarke's offending was less serious than that of the appellant, it not having involved sexual penetration of the child. Mr Clarke had also exhibited a high degree of remorse and received a 55% discount for his pleas of guilty and agreement to give evidence against the complainant's father;
(c)Nicholas Beer: a total effective sentence of 7 years imprisonment. Mr Beer's offences were also committed on a single occasion, although they were more numerous than those committed by the appellant (14 in total) and involved recording the child. While Mr Beer's offending was similar in the level of seriousness to the appellant, he also received a 25% discount for his pleas of guilty and a further discount for agreeing to give evidence against the complainant's father;
(d)Troy Milbourne: a total effective sentence of 5 years and 3 months imprisonment. Mr Milbourne's offences were also committed on a single occasion, and although they were committed when the child was under 13 years old, the learned sentencing judge did not consider the difference in age as significant in assessing the relative seriousness, given that the child had turned 13 not long before the appellant's offences.[75] Mr Milbourne also received significant discounts for his pleas of guilty and willingness to give evidence against the complainant's father;
(e)Ryan Clegg: a total effective sentence of 12 years and 9 months imprisonment. Mr Clegg's offending was more serious than the appellant's, he having offended on 4 separate occasions. He also received a discount of 20% for his pleas of guilty; and
(f)The complainant's father: a total effective sentence of 22 years and 6 months imprisonment. As noted above, this case was in a class of its own, notwithstanding the discount for the father's guilty pleas.
[74] BAB 18 - 20.
[75] BAB 19.
Having regard to the relevant sentencing principles, including the issue of totality, the learned sentencing judge imposed the individual sentences set out above, with the total effective sentence of 9 years and 6 months imprisonment.
Turning, then, to the express errors alleged in the grounds of appeal against the sentence.
Ground 3 - the finding that the appellant knew that the child was under the age of 16 years
As noted above, the learned sentencing judge was satisfied that the appellant knew that the child was under the age of 16 years of age when he had sex with her.
In making that finding, his Honour referred to the child's interview, which was tendered in evidence, and a photograph that was shown to the appellant during the video record of interview. The interview with the child was conducted on 8 April 2015, in the month following the offending. His Honour stated that it was clear that the child was under the age of 16 years.[76]
[76] BAB 6.
His Honour also referred to the appellant's answers in the video record of interview to the effect that he thought the child was 17 years of age. The learned sentencing judge formed the view that the appellant avoided properly answering the officers' questions in that regard.[77]
[77] BAB 6.
The appellant's submissions in support of this ground suggest that features personal to the complainant (including an alleged piercing visible in the video of her interview) might affect the ability of a person to accurately determine her age.
There is no merit in this submission and no error in the learned sentencing judge's finding.
The complainant was approximately 13 years and 3 months old at the time of the offences (and a month older when interviewed). I have also viewed the interview with the complainant, and it is obvious that she is a child under the age of 16 years. Nor, contrary to the appellant's submissions, does she have a piercing. The learned trial judge was correct to conclude that it is clear from the complainant's appearance that she was under 16 years of age.
The learned sentencing judge was also correct to observe that the appellant avoided properly answering the officers' questions in relation to his stated belief that the complainant was 17 years of age. His statements of belief in the interview are wholly unconvincing. When asked why he thought the complainant was 17 years old, the appellant simply stated that her father told him that she was. He deflected any questions as to whether the complaint looked, spoke or acted like she was 17 years old. It was open to the learned sentencing judge to conclude that the appellant's statements of belief as to the complainant's age were false.
Ground 3 is without merit.
Ground 4 - the finding that the appellant knew that the person who had arranged for him to have sex with the child was the child's father
This ground of appeal is baffling. There is utterly no basis for it.
While the appellant refers to various authorities as to the extent to which physical resemblance may be evidence of consanguinity,[78] those authorities are entirely beside the point. There was no evidence as to the physical appearance of the complaint's father.
[78] See e.g. C v C [1972] 3 All ER 577.
Nor, however, was there any contest before the learned sentencing judge that the appellant knew that it was the complainant's father who offered to make her available to the appellant to sexually abuse. The video record of interview contains a number of references, by the appellant, to the fact that the complainant and her father were, indeed, father and daughter. In particular, the appellant recounted a conversation (prior to his own offending), when the father was boasting ('being smart') about having sex with his own daughter.[79]
[79] BAB 129.
All of the evidence supported the fact that the appellant knew that it was the complainant's father who had sexually abused her in his presence, and who encouraged the appellant to abuse her in turn.
Ground 4 is without merit.
Ground 5 - whether the appellant's counsel challenged the experts' reports
Ground 5 complains that the appellant's counsel failed to make submissions to the sentencing judge as to the experts' reports in accordance with the appellant's instructions.
The appellant's counsel did make submissions in relation to the expert reports prepared by the psychologist and psychiatrist. Counsel's submissions commenced by confirming his instructions that the appellant denied the facts as contained in the reports as to the commission of the offences and that he was instructed to point out what the appellant considered to be a number of errors in the report, particularly from the psychiatrist.
That submission, which the appellant maintained in the appeal, was not to his credit and, as the learned sentencing judge observed, his denial of the expressions of regret and remorse to the psychiatrist emphasised his lack of empathy for the victim.[80]
[80] BAB 9.
Be that as it may, it is clear that the appellant's counsel did address the errors alleged by the appellant in the psychiatrist's report. Insofar as the appellant now seeks to raise additional matters, they are spurious and immaterial.
Ground 5 is without merit.
Grounds 1 and 2 - manifest excess and totality
No express error having been established by the appellant, he finally relies upon implied error and the totality principle.
In this regard, the general principles in relation to appeals against sentence are well settled and I need not repeat them all.[81] Of particular relevance to the present case, are the following matters:
(a)the first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases; and
(b)where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[81] MHE v The State of Western Australia [2019] WASCA 133 (MHE v Western Australia) [58] (Mitchell & Beech JJA, Quinlan CJ agreeing).
In the present case, the learned sentencing judge, in applying these principles, expressly reduced the individual sentence for count 1 from 5 years immediate imprisonment to 3 years and 6 months imprisonment, in order to achieve the total effective sentence. His honour also ordered counts 2 and 3 to be served concurrently with each other and concurrent with the sentence imposed on count 4.[82] The term of 6 months imprisonment for breach of bail was to be ordered cumulatively.
[82] BAB 23.
The total effective sentence imposed by his Honour, of 9 years and 6 months imprisonment, reveals no implied error, either as to the individual sentences or as a matter of totality.
As to the individual sentences, no complaint can be made in relation to the imposition of sentences between 4 years imprisonment (count 3) and 5 years 6 months imprisonment (count 4). Reviews of sentences imposed, after trial, in relation to sexual offences against children reveal a broad range of sentences imposed for such offences, including sentences of the size imposed on the appellant.[83]
[83] See e.g. VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; Western Australia v Prince [2011] WASCA 22; JJR v The State of Western Australia [2018] WASCA 51; MHE v Western Australia.
In 2000, for example, while recognising there to be no tariff in relation to sexual assault offences, it was recognised that a single act of sexual assault, which involves penetration of the vagina by the penis, will commonly attract a sentence of about 6 years imprisonment, and where the complainant is under the age of 16 years, will generally attract a sentence of approximately 8 years.[84]
[84] See R v Clark [2000] WASCA 229 [11] (Wheeler J, Kennedy & Pidgeon JJ agreeing).
The individual offences were very serious, involving as they did the depraved exploitation of a vulnerable young girl in circumstances where the appellant knew the girl was being forced into the activity by her father. None of the sentences for those offences were unjust or unreasonable.
As to totality, again, the sentences customarily imposed reveal a broad range. By way of example only, in MHE v Western Australia, Mitchell and Beech JJA provided the following broad summary of cases involving serious intrafamilial offending (many of which involved offending over significant periods of time):[85]
(1)In VIM, the court referred to a broad sentencing range, in post-transitional terms, in cases of pleas of guilty, to sentences from 6 years 8 months' imprisonment to 12 years 8 months' imprisonment.
(2)In The State of Western Australia v Prince, McLure P identified 12 cases involving pleas of guilty. Those cases disclosed a sentencing range from 4 years 2 months' imprisonment to 12 years 6 months' imprisonment, with the majority of cases involving the imposition of sentences of around 8 years' imprisonment. In cases of pleas of not guilty, her Honour referred to cases involving sentences ranging from 6 years' imprisonment to 14 years 6 months' imprisonment.
(3) In JJR, a large number of cases were reviewed in which the sentences ranged from 7 to 16 years' imprisonment. The substantial majority of those sentences were imposed after trial.
[85] MHE v Western Australia, [82] (Mitchell & Beech JJA, Quinlan CJ agreeing) (citations omitted).
While the appellant's offences were not intrafamilial offences, as such, as they involved the encouragement and participation of the complainant's father, they nevertheless involved many of the features of such offending that serve to underline their seriousness: the vulnerability of the victim, the gross breach of trust and the corruption of, and damage to, the child. The differences between this case, and other cases involving the sexual exploitation of children, only serve to emphasise that any guidance to be afforded by other cases is flexible at best.
Having regard to that flexible guidance, in my view, the total effective sentence imposed on the appellant was consistent with the sentencing range of comparable offences. In this context it should be noted that the total effective sentences for the sexual offences committed by the appellant was 9 years imprisonment.
Significantly, in the present case, having regard to their comparable seriousness, and the discounts afforded to pleas of guilty and cooperation, the total effective sentence imposed on the appellant was consistent with the sentences imposed on the other men who were guilty of the exploitation of the child in this case. Given that they had a common victim, and had each engaged in exploiting that victim with her father, in my view it was appropriate for the learned sentencing judge to have regard to the sentences imposed on those other offenders, to place the appellant's offending in its broader context. The fact that those other offenders did not appeal those sentences to this Court does not, in my view, lessen their relevance.
The additional cumulative sentence of 6 months imprisonment for the appellant's breach of bail was, in my view, clearly appropriate, reflecting, as it did, a sentence for offending of a different character. The impact of that offence on the administration of justice, in my view, required a separate, cumulative penalty.
The total effective sentence imposed on the appellant was not plainly unreasonable or unjust.
We would not, in the circumstances, grant the appellant leave to adduce par 11 into evidence in the appeal even if par 11 relates to the confessional statements made by the appellant during the electronically recorded interview. Also, we would not, in the circumstances, grant the appellant leave to adduce par 15 into evidence in the appeal. Further, we would not, in the circumstances, grant the appellant leave to adduce into evidence in the appeal that part of par 16 of his affidavit which relates to the failure of the police to revoke, prior to the commencement of the electronically recorded interview, the alleged promise made by Detective Senior Constable Wynen. All of the information in the relevant parts of the July 2018 affidavit (including par 11, par 15 and the relevant part of par 16) was known to the appellant and available for use by him in the proceedings before Stewart DCJ and at the trial. If the appellant had raised these issues in the proceedings before Stewart DCJ it would, no doubt, have been necessary for him to give oral evidence before her Honour and to be cross‑examined. Also, the appellant's assertions in relation to those issues would have been put to the police officers (in particular, to Detective Senior Constable Wynen). Stewart DCJ would have made findings of fact in relation to the appellant's assertions. The appellant has failed to explain satisfactorily why he did not raise the alleged promise by Detective Senior Constable Wynen or the alleged failure to afford him an opportunity to contact a lawyer selected by him from either the yellow or white pages directory, either in the proceedings before Stewart DCJ or at the trial. In all the circumstances, no miscarriage of justice has occurred. The interests of justice are against permitting the appellant to adduce the evidence in question in the appeal.
We would refuse to grant the appellant leave to adduce into evidence in relation to ground 1 of the appeal any of the material in the July 2018 affidavit.
As to the relevant parts of the July 2019 affidavit, it is not reasonably arguable that any of the material in the July 2019 affidavit renders the appellant's confessional statements in the electronically recorded interview involuntary.
We would refuse to grant the appellant leave to adduce into evidence in relation to ground 1 of the appeal any of the material in the July 2019 affidavit.
Appeal against conviction: ground 2: Stewart DCJ's reasons
Stewart DCJ's reasons in relation to the State's application at the pre‑trial hearing (in particular, her Honour's reasons in relation to the mandatory relevant considerations set out in s 155(3)) of the Criminal Investigation Act are summarised in Quinlan CJ's reasons.
Appeal against conviction: ground 2: the appellant's submissions
The appellant's submissions in relation to ground 2 are summarised in Quinlan CJ's reasons.
Appeal against conviction: ground 2: the evidence before Stewart DCJ: its merits
We will now consider the merits of ground 2 having regard to the evidence that was before Stewart DCJ.
Subject to one qualification, we agree with Quinlan CJ, generally for the reasons he gives, that, having regard to the evidence that was before Stewart DCJ, ground 2 is without merit.
The qualification is that it is unnecessary to decide, in this appeal, whether the balancing exercise under s 155(2) of the Criminal Investigation Act involves the exercise of a 'discretion' in the sense that, on appeal, it is necessary to demonstrate an error within the reasoning in House v The King[98] or whether that balancing exercise admits of 'a unique outcome'. See Kadir v The Queen.[99] No submissions were made in this appeal in relation to the point. It is therefore undesirable to express a view about the matter.
Appeal against conviction: ground 2: the additional evidence sought to be adduced by the appellant in the appeal
[98] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
[99] Kadir v The Queen [2020] HCA 1 [9] (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ).
We will now consider whether and, if so, to what extent the proposed additional evidence sought to be adduced in the appeal advances the appellant's case that Stewart DCJ should have decided that the admission of the electronically recorded interview into evidence at the trial was not justified.
In our opinion, none of the information in the relevant parts of the July 2018 affidavit and the relevant parts of the July 2019 affidavit is of material relevance in relation to any of pars (a), (b), (c), (d) or (e) of s 155(3) of the Criminal Investigation Act.
The appellant's allegations in pars 11, 12, 15 and 16 of the July 2018 affidavit are of relevance to par (f) of s 155(3) of the Criminal Investigation Act, which provides that, in making a decision under s 155(2), the court must take into account 'any other matter the court thinks fit'.
However, generally for the reasons we have given in par [72] above in relation to par 11, par 12 and part of par 16 of the July 2018 affidavit, we would refuse to grant the appellant leave to adduce into evidence in relation to ground 2 of the appeal any of the material in the July 2018 affidavit.
As to the relevant parts of the July 2019 affidavit, it is not reasonably arguable that any of the information in the July 2019 affidavit is of material relevance in relation to any of pars (a), (b), (c), (d), (e) or (f) of s 155(3) of the Criminal Investigation Act.
We would refuse to grant the appellant leave to adduce into evidence in relation to ground 2 of the appeal any of the material in the July 2019 affidavit.
Appeal against conviction: conclusion
The appellant should be granted an extension of time within which to appeal against conviction. We would dismiss the appellant's applications in the appeal for leave to adduce additional evidence in the appeal. Leave to appeal on ground 1 and ground 2 should be refused. The appeal against conviction must be dismissed.
Appeal against sentence: the grounds of appeal
The appellant relies upon five grounds in his appeal against sentence. The grounds are set out in Quinlan CJ's reasons. Ground 1 alleges that the individual sentences were manifestly excessive. Ground 2 alleges that the total effective sentence of 9 years 6 months' imprisonment infringed the first limb of the totality principle. Each of grounds 3 and 4 alleges an express error of fact was made by the trial judge in sentencing the appellant. Ground 5 alleges that a miscarriage of justice occurred in the sentencing of the appellant as a consequence of defence counsel's failure to make submissions on the expert reports in accordance with the appellant's instructions.
We agree with Quinlan CJ, generally for the reasons he gives, that grounds 3, 4 and 5 are without merit.
We will express our own reasons in relation to grounds 1 and 2. We adopt Quinlan CJ's description of the background facts and sentencing remarks. We will repeat or add to them only to the extent necessary to explain what follows.
Before dealing with grounds 1 and 2, we will address briefly the appellant's applications for an extension of time to appeal and for leave to adduce additional evidence in the appeal.
The appellant filed his appeal notice about three weeks out of time. He has explained this short delay satisfactorily in his affidavit sworn 3 May 2018. An extension of time should be granted.
The additional evidence the appellant seeks to adduce is focused on a narrow factual issue that was immaterial to the appellant's sentencing and which is not the subject of any ground of appeal. It must be dismissed.
We turn now to consider grounds 1 and 2, which allege inferred error by the trial judge.
Appeal against sentence: general principles applicable to grounds 1 and 2
The general principles applicable to an allegation that an individual sentence is manifestly excessive (or inadequate) or that a total effective sentence infringes the totality principle are well‑established. There have been many statements by this court of the relevant principles, including the following statement in Kabambi v The State of Western Australia:[100]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[100] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Appeal against sentence: sentencing considerations in cases of sexual offending against a child
It is also well established that the dominant sentencing considerations in a case of sexual offending against a child are punishment, personal and general deterrence and the protection of vulnerable children.[101]
[101] Emery v The State of Western Australia [2007] WASCA 135 [17].
Appeal against sentence: the appellant's submissions
At the hearing of the appeal, the appellant relied upon his written submissions in support of his grounds of appeal against sentence.[102] We have considered his written submissions. They are not a model of clarity, but his submissions on grounds 1 and 2 appear to be as follows.
[102] Appeal ts 47.
In relation to ground 1, the appellant makes no submission in support of the proposition that the term of 6 months' imprisonment he received for the breach of bail offence was manifestly excessive. In respect of the counts in the indictment, the appellant appears to allege that they are manifestly excessive because:[103]
(a)the appellant was not in a position of care, supervision or authority over the victim;
(b)the offending did not involve the use of violence, weapons, sadism or, he says, the doing of humiliating acts to the victim;
(c)the victim did not protest or struggle and it 'appeared to [him] that there was factual consent'; and
(d)the offending occurred on only one occasion.
[103] WAB 125 - 126.
In support of ground 2, the appellant contends that the offences 'substantially overlap[ped]' and that he has been punished twice for what was, in substance, the same offending.[104]
[104] WAB 126.
Appeal against sentence: ground 1: disposition
The maximum penalty for an offence contrary to s 321(2) of the Code is 14 years' imprisonment.
There is no tariff for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. Careful regard must be given to the individual facts and circumstances of each case. This is well illustrated in respect of the sentencing cases decided by this court in which individual sentences for offences contrary to s 321(2) of the Code have been considered.[105] There is little to be gained by a lengthy analysis of these cases. One case, with some features similar to the present case, is Emery v The State of Western Australia.
[105] See, for example, Tapper v The State of Western Australia [2016] WASCA 140; Topuz v The State of Western Australia [2017] WASCA 186; The State of Western Australia v Fyffe [2018] WASCA 173.
The offender in Emery was convicted after trial of two counts of sexual penetration of a child aged between 13 and 16 years and one count of indecent dealing with a child between those ages. He was sentenced to terms of 6 years' imprisonment and 3 years 4 months' imprisonment, respectively, on each of the penetration counts and to a term of 12 months' imprisonment in respect of the indecent dealing.[106] Those sentences were ordered to be served concurrently. The appellant appealed against the individual sentence of 6 years' imprisonment imposed on one of the sexual penetration offences. The victim of the offences was, at the relevant time, 13 years old. She had been befriended by a woman with whom the appellant was in a relationship. All of the offences occurred in the one incident in the presence of the woman. The offender fondled the victim's breasts and the woman then licked the child's vagina. The offender then penetrated the complainant with his penis and had sexual intercourse with her. It was the offence of sexual penetration constituted by this act which attracted the individual sentence of 6 years' imprisonment. The offender had previously been convicted of stealing, but was otherwise of generally good antecedents and had positive references. He was unremorseful, but was assessed as being at a low risk of reoffending. The offender's appeal was dismissed.
[106] Each sentence took into account the one‑third reduction required by the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
Returning to the present case, each act of sexual penetration committed by the appellant was, in our view, a very serious instance of its type. The victim was particularly vulnerable. To the appellant's knowledge, the person who was obliged to protect her, her father, compelled and directed her to engage in sexual activity with the appellant. The appellant callously took advantage of the victim's vulnerability for his own sexual gratification and without any concern for her welfare.
Although there is no hierarchy of sexual penetration, and recognising that any kind of sexual penetration of a child is very serious, it is generally accepted that, in most cases, penile penetration is more serious than digital penetration, fellatio or cunnilingus.[107] It is clear, from the individual sentences imposed, that his Honour regarded the two counts of penile penetration as the most serious.
[107] Thomas v The State of Western Australia [2019] WASCA 4 [38] and C v The State of Western Australia [2006] WASCA 261 [35].
The appellant's submissions in this court are without merit. The assertion that the offending did not involve humiliating acts to the complainant is incorrect. Engaging in sexual behaviour at the behest of, and in the presence of, the victim's father is readily characterised as humiliating. The notion that the victim appeared to consent to sexual activity with the appellant is contrary to the findings of the trial judge.[108] None of the other matters raised by the appellant were mitigating. At best, they amounted to the absence of a factor which would have made the appellant's offending even more serious.
[108] Sentencing ts 3, 5 - 6.
The only substantial mitigating factor was that the offending the subject of counts 2 and 3 was based entirely on the appellant's admissions to police in his record of interview of 14 May 2015. His Honour recognised the mitigatory effect of these admissions, even though the appellant later challenged the admissibility and truthfulness of the admissions.[109]
[109] ts 362.
The appellant did not have the advantage of youth, being 48 years of age at sentence. His criminal history was minor, but it could not be said that the appellant was a person of prior good character. He is not remorseful for his actions and does not accept responsibility for them.[110] The appellant harbours a sexual interest in young girls and acted on that interest in this case.[111] As the trial judge pointed out, both personal and general deterrence were important sentencing factors.[112] While the appellant was under the influence of methylamphetamine at the time of the offending, his voluntary ingestion of the drug could not reduce his moral culpability.
[110] Sentencing ts 10.
[111] Sentencing ts 13.
[112] Sentencing ts 17 - 18.
The appellant appears to claim that events in his childhood might explain his offending and were mitigating. However, his Honour found that there were significant conflicts in the histories he had given to a clinical psychologist, Ms Della Torre, and a psychiatrist, Dr Wojnarowska, and rejected such claims.[113]
[113] Sentencing ts 14.
Having regard to all of the abovementioned matters, we are satisfied that none of the individual sentences for the appellant's sexual offending was unreasonable or plainly unjust. In our opinion, each individual sentence represented a sound exercise of the sentencing discretion. Inferred error has not been demonstrated. None of the individual sentences for the offences contained in the indictment were manifestly excessive.
Insofar as the sentence for the charge of breaching bail is challenged, the sentence of 6 months' imprisonment was not manifestly excessive. The maximum penalty for an offence contrary to s 51(1) of the Bail Act 1982 (WA) is 3 years' imprisonment or a fine of $10,000. The appellant was bailed to appear in the District Court for a trial. He failed to appear, having travelled to New South Wales. Ultimately, he had to be extradited from that State to Western Australia. The appellant pleaded guilty to this offence. He received a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA) for the plea. This was a serious instance of breach of bail. The appellant deliberately absconded from the jurisdiction to avoid a trial. Precious court and other resources were wasted. The conduct engaged in by the appellant must be deterred. The sentence that was imposed was not unreasonable or plainly unjust.
Ground 1 has not been made out. We would refuse leave to appeal.
Appeal against sentence: ground 2: disposition
The trial judge ordered that the individual sentences for counts 1 and 4 and the sentence for the breach of bail offence be served cumulatively. Thus, the total effective sentence was 9 years 6 months' imprisonment. The appellant was made eligible for parole and the total effective sentence was backdated to 7 October 2016.[114]
[114] Sentencing ts 19 - 20.
It is unnecessary to repeat what we have already written about the seriousness of the appellant's offending and his personal circumstances.
The overall criminality of the appellant's offending was very high. The appellant engaged in four separate and distinct acts of sexual penetration of the victim. Each act of penile/vaginal penetration lasted about 10 minutes. The second act of penile/vaginal penetration resulted in the appellant ejaculating, albeit that he wore a condom at the time. While the acts of sexual penetration occurred in the one incident, an order that the sentences be served wholly concurrently would not have properly reflected the overall criminality of what the appellant did to the victim. Some accumulation was required. Appropriately, in order to ensure that the total effective sentence was not disproportionate, his Honour reduced the sentence he would otherwise have imposed on count 1.
Some additional punishment for the appellant's breach of bail was appropriate to reflect the serious circumstances of the offending and the matters referred to in [273] above. Moreover, the commission of this offence was entirely separate from the appellant's sexual offending.
Neither the appellant nor the State cited any truly comparable cases. This court has, from time to time, reviewed total effective sentences in cases of serious sexual offending against children. See, for example, VIM v The State of Western Australia;[115] The State of Western Australia v Prince;[116] JJR v The State of Western Australia[117] and MHE v The State of Western Australia.[118] The reviews undertaken in these cases are not of great assistance in the present case because they generally involved the commission of more offences and involved intrafamilial sexual abuse. The sentencing case of the victim's father, SCN v The State of Western Australia,[119] is also of little assistance, given the enormity and scale of that offending. None of the other men who offended against the victim have appealed against their respective sentences. Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome. However, this is done, in the case of offences against the law of Western of Australia, through the work of this court and its predecessor, the Court of Criminal Appeal, and not by reference to sentences passed at first instance. See Hili v The Queen;[120] Wright v The State of Western Australia.[121] In addition to the cases we have mentioned in relation to serious sexual offending against children, we have considered Greenland v The State of Western Australia;[122] Walters v The State of Western Australia[123] and Menmuir v The State of Western Australia.[124] These cases, all of which involve sentences imposed after pleas of guilty, have features which distinguish them from the present case.
[115] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
[116] The State of Western Australia v Prince [2011] WASCA 22.
[117] JJR v The State of Western Australia [2018] WASCA 51.
[118] MHE v The State of Western Australia [2019] WASCA 133.
[119] SCN v The State of Western Australia [2017] WASCA 138.
[120] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56].
[121] Wright v The State of Western Australia [2019] WASCA 183 [29].
[122] Greenland v The State of Western Australia [2017] WASCA 83.
[123] Walters v The State of Western Australia [2018] WASCA 3.
[124] Menmuir v The State of Western Australia [2018] WASCA 13.
If, in a particular case, where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia;[125] McNally v The State of Western Australia.[126]
[125] Moore v The State of Western Australia [2019] WASCA 35 [51].
[126] McNally v The State of Western Australia [2019] WASCA 93 [48].
There is no merit in the claim that the appellant has been doubly punished. A fair reading of the sentencing remarks as a whole does not reveal such an error.
In our opinion, the total effective sentence of 9 years 6 months' imprisonment did not infringe the first limb of the totality principle. Having evaluated the appellant's overall criminality in the context of all relevant facts and circumstances and all relevant sentencing factors (including the appellant's personal circumstances, the mitigating factors, and the need to appropriately punish the appellant, denounce his conduct and provide personal and general deterrence), the total effective sentence was not unreasonable or plainly unjust.
Ground 2 has not been made out. We would refuse leave to appeal.
Appeal against sentence: conclusion
The appellant should be granted an extension of time within which to appeal against sentence. We would dismiss the appellant's application in the appeal for leave to adduce additional evidence in the appeal. Leave to appeal on each ground should be refused. The appeal against sentence must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Research Associate to the Honourable Chief Justice Quinlan20 MARCH 2020
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