Indich v The Queen - [1999] WASCA 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: INDICH -v- R [1999] WASCA 146

CORAM: IPP J
ANDERSON J
HEENAN J

HEARD: 12 AUGUST 1999

DELIVERED : 25 AUGUST 1999

FILE NO/S: CCA 102 of 1999
CCA 146 of 1999

BETWEEN: CLARENCE WILLIAM INDICH
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sexual penetration of a child between the age of 13 and 16 years - Defence that accused reasonably believed child was of or over 16 years - Onus of proof - Jury direction - Considered as a whole, the direction was not a misdirection - Application for leave to appeal conviction dismissed - Turns on own facts

Sentence - Sexual relationship with child under 16 years - Significance of age difference between offender and complainant - General principles in R v The Queen reiterated - Age difference is a factor of aggravation - Appeal dismissed

Legislation:

Criminal Code s 321(9)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr S A Walker
Respondent: Mr R E Cock QC & Ms V A Prentice

Solicitors:

Appellant: Aboriginal Legal Service of WA (Inc)
Respondent: State Director of Public Prosecutions

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

R v The Queen, unreported; CCA SCt of WA; Library No 970625; 21 November 1997

Case(s) also cited:

A Child v Andrews (1994) 12 WAR 552
Australian Coal v Commonwealth (1953) 94 CLR 621
Kakai v R, unreported; CCA SCt of WA; Library No 990082; 23 February 1999
George v Rockett (1990) 170 CLR 104
GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183
HG v R (1999) 160 ALR 554
House v The King (1936) 55 CLR 499
Jarvis v R, unreported; CCA SCt of WA; Library No 930391; 14 June 1993
Mill v R (1988) 166 CLR 59
Oakford v R, unreported; CCA SCt of WA; Library No 960613; 25 October 1996
R v Podirsky (1989) 43 A Crim R 404
R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998
Shaw v R (1989) 39 A Crim R 343
Verschuren v R (1996) 17 WAR 467
Weng Keong Chan (1989) 38 A Crim R 337

IPP J: After trial in the District Court the applicant was convicted of one count of sexual penetration of a child between the age of 13 and 16 years. He applies for leave to appeal against this conviction.
The applicant subsequently pleaded guilty to one count of having a sexual relationship with a (different) child under the age of 16 years. Both matters then came before L A Jackson DCJ for sentencing. His Honour sentenced the applicant to 12 months imprisonment in respect of the conviction of sexually penetrating a child between the ages of 13 and 16 years, and a cumulative term of 3 years imprisonment in respect of the conviction of having a sexual relationship with the different child. The applicant applies for leave to appeal against the latter sentence only.
I turn firstly to the appeal against conviction. The applicant relied on one ground of appeal, namely:
"The learned trial Judge misdirected the jury that a suspicion by me that the complainant was under the age of 16 years was sufficient to displace a belief by me that she was 16 years or over."
The direction concerned related to s 321(9) of the Criminal Code which provides that it is a defence to a charge of sexually penetrating a child between the age of 13 years and 16 years "to prove the accused person believed on reasonable grounds that the child was of or over the age of 16 years."
By the indictment, the applicant was charged with sexual penetration of a child between the age of 13 years and 16 years, without consent and while armed with an offensive weapon. The applicant was found not guilty of this primary charge. He was, however, found guilty of the alternative charge of sexually penetrating a child between the age of 13 and 16 years. In directing the jury as to the primary charge, L A Jackson DCJ referred to the circumstance of aggravation involving the allegation that the complainant was between 13 years and 16 years of age, and the applicant's claim that he honestly and reasonably (but mistakenly) believed that she was older than 16 years. His Honour told the jury that "it is for the Crown to prove that the accused man did not have an honest and reasonable mistake in his dealings with the complainant." The learned Judge emphasised that it was for the Crown "to prove beyond reasonable doubt that he did not have such a belief."
The learned Judge then explained that, unlike the position in regard to the other issues in the trial (where it was the Crown's burden to prove its case beyond reasonable doubt), when it came to the defence raised in regard to the alternative charge it was "for the accused man to prove he believed on reasonable grounds that the complainant was of or over the age of 16 years." His Honour explained further that, on this question, the standard of proof was the balance of probabilities. By way of elucidation, he said:
"Is it more probable than not, is it more likely than not, that the accused man believed that she was of or over the age of 16 years."
After the jury retired they asked the following question of the learned Judge:
"If there was any suspicion that [the applicant] believed that [the complainant] may be under 16 years of age, does this equate to the term 'probability'?"
The question is ambiguous. It is not entirely clear whether it related to the honest and reasonable mistaken belief relevant to the circumstance of aggravation on the primary charge, or the belief that was the basis of the defence to the alternative charge. It is also not clear whether the suspicion, the subject of the enquiry, was suspicion on the part of the applicant or suspicion on the part of the jury.
His Honour commenced his answer to the question by stating:
"The first thing to say is that the question of belief starts this way. He must have an honest and reasonable belief that the complainant was 16 or more. If he had a suspicion that she was under 16 or believed maybe she was under 16 then he would not have a belief that she was 16 or more. That's the first part."
I pause to note that this "first part" is the part of the direction on which the applicant relies in his application for leave to appeal against conviction.
The learned Judge proceeded to explain to the jury that, in regard to the circumstance of aggravation on the primary charge, "the burden is on the Crown to prove beyond reasonable doubt that the accused did not have such a belief. Mere suspicion that he might have believed she was under 16 will be not enough."
His Honour went on to explain the relevance of the applicant's belief as to the age of the complainant in regard to the alternative charge. He stated:
"If you are considering the alternative verdict of sexual penetration of a child between the ages of 13 and 16 years, then the burden of proof is on the accused to prove on the balance of probabilities that he had such a belief. If you think he probably did believe she was at least 16, then he will have satisfied the burden and standard upon him and a suspicion that he might not have, or that he might have thought she was under 16, would not be sufficient."
The foreman of the jury then asked the learned Judge to "repeat the last section" and his Honour stated:
"You will recollect that the starting point is the indictment that you have, the charge of sexual penetration without consent, and the issue of age being a question of aggravation. If you are not satisfied that there was a lack, and therefore you would acquit him on the indictment, and are considering the alternative verdict, then the position is this. The burden of proof is on the accused to prove on the balance of probabilities, that is, it is more probable than not, that he had a belief that she was over 16. If you think he probably did, that is, if he satisfies you that it is more probable than not that he believed she was over 16, then he will have satisfied that burden of proof.
If you have a suspicion that he may not have believed that she was over 16, then that will not be sufficient. That will not offset the burden he will have satisfied by persuading you that it is more likely than not that he believed she was over 16, so a mere suspicion would not mean he has not proved sufficiently for the purpose of the alternative, that she was over 16."
Counsel for the applicant submitted that whatever was said after "the first part" of the directions to which I have referred above, while not incorrect, was not clear enough to remove the confusion that would have resulted from the initial error made by his Honour. The error concerned was the statement in "the first part" of the directions to the effect that, if the applicant had a suspicion that the complainant was under 16 years, "then he would not have a belief that she was 16 or more." Essentially the submission made on the applicant's behalf was that "a suspicion that a person may not be 16 or more is not necessarily inconsistent with a belief that a person is 16 or more."
What the learned Judge meant by "suspicion" in the part of the direction that is challenged, is not entirely clear. It is arguable that he equated the "suspicion that she was under 16" with a "belie[f that] maybe she was under 16". If that were to be correct, there would be no error in the direction, as it would follow that the learned Judge was telling the jury that, if the applicant believed that the complainant might be under 16 years, he could not have believed that she was over 16 years. It is also open to argument that, in any event, a suspicion (in accordance with the ordinary meaning of the word) that the complainant was under 16 years cannot co‑exist with a belief that the complainant was 16 years or more; it is arguable that these states of mind are mutually exclusive. Whatever the position may be in this regard, however, I accept that the direction, viewed on its own, was likely to cause confusion.
But the direction should not be viewed on its own. The learned judge went to some pains to clarify what he intended to convey thereby.
First, he told the jury that, in regard to the alternative count, the burden of proof was on the applicant "to prove on the balance of probabilities that he had such a belief", and then stated:
"If you think he probably did believe she was at least 16, then he will have satisfied the burden and standard upon him and a suspicion that he might not have, or that he might have thought she was under 16, would not be sufficient."
This was a perfectly correct statement of the law put in relatively simple and direct terms.
Secondly, when asked by the jury to repeat his explanation, the learned Judge emphasised that "a mere suspicion" on the part of the jury would not mean that the applicant had not proved sufficiently, on the balance of probabilities, that he believed that the complainant was over 16 years.
In these circumstances, when the direction as a whole is considered, I do not think that the jury would have been confused at all, and I do not think that they were misdirected. I would dismiss the application for leave to appeal against conviction.
I turn now to the application for leave to appeal against sentence.
I think it fair to say that the principal argument advanced by counsel for the applicant was that L A Jackson DCJ attached too much importance to the age difference between the applicant and the complainant. At the relevant time the applicant was 34 years of age and the complainant 14. Counsel submitted that this age difference was not as important as in the usual run of cases. That is because the applicant fell into a different category to the norm. As it was put by counsel:
"He is not a teacher; he is not a family friend; he is not a stepfather. He has not in any way abused a position of trust or even of influence."
Counsel also drew attention to the fact that the complainant was not living with her parents, and had a maturity beyond her age. Further, the complainant had not apparently suffered any particular trauma from the relationship and no victim impact statement had been tendered. There had been no systematic form of seduction.
In all these circumstances it was submitted that the sentence was manifestly excessive. It is to be noted in this regard that L A Jackson DCJ fixed upon a starting point of 4 years imprisonment which he reduced to 3 years imprisonment, having regard to the applicant's plea of guilty and other mitigating circumstances. It was not suggested that the reduction was inappropriate, rather it was said that the starting point was too high.
In R v The Queen, unreported; CCA SCt of WA; Library No 970625; 21 November 1997 I discussed the general principles that were to be applied when issues of the present kind were raised, and said:
"The reasons for the gravity with which the offence of having a sexual relationship with a child under the age of 16 years is regarded, are not difficult to discern. Children under the age of 16 years are vulnerable to seduction. They do not have the emotional maturity, experience and knowledge of life to be able properly to consent to a sexual relationship. By reason of their vulnerability they can be readily abused by unscrupulous persons. The emotional and psychological harm that a child under the age of 16 years may suffer through a sexual relationship is potentially devastating. Accordingly, the so-called consent of a child under the age of 16 years to a sexual relationship is immaterial. It is of the nature of the offence that the child will purport to consent to the relationship. Further, the absence of evidence as to the prejudicial consequences to the child of the relationship concerned will not necessarily be regarded as reductive of the seriousness of the offence. That is because of the inherently harmful consequences of the conduct giving rise to the offence."
And, further:
"I have elsewhere referred to the infinite variety of circumstances that may apply in cases involving sexual offences, and the offence of having a sexual relationship with a child under the age of 16 years is no exception to this rule. At the one end of the scale of severity may be the instance where the female child is almost 16 years of age and the offender is himself relatively very youthful. At the other end of the scale is the case where the female child is very young and the offender is relatively old so that there is a marked disparity in their ages. The difference in the criminal culpability of the offender in each instance is manifest. In the first example the female child would be more mature and the offender less able to appreciate the consequences of his behaviour and less able to control his own impulses. Moreover, in cases of this kind the offender would not ordinarily be able to exercise the domination over the child which would readily occur when the offender is an adult of mature years, sophistication and experience (and perhaps of relative wealth). In the first example, the individuals concerned might well believe that their relationship could lead, eventually, to an appropriate permanent relationship between them, countenanced by the law, when the child reached the age of 16. On the other hand, in the second example, where the offender is a man in his late fifties and married (such as the applicant in the present case), there would be no prospect of any ongoing relationship and the inference would arise that the offender would be taking advantage of the child purely for his own pleasure and self‑indulgence. Other factors bearing on the potential seriousness of the offence are the length of the relationship, the manner in which it is carried on, the nature of the sexual acts performed, and the degree of care and consideration for the child demonstrated by the offender."
I accept that, having regard to the above criteria, the present offence was not particularly high in the scale of seriousness. The sexual relationship in question endured for about five weeks during which time some five or six acts of sexual intercourse occurred. The nature of the sexual acts performed was not of a depraved kind and the applicant did not manifest any particular lack of degree of care and consideration for

the complainant. As counsel for the applicant pointed out there was no breach of trust involved.

Nevertheless, the age difference remains a factor of aggravation. There was no suggestion that a permanent relationship between the applicant and the complainant was likely (indeed the offence against the other child indicates that the converse was the case) and the inference is that the applicant was taking advantage of the complainant for his own pleasure and self‑indulgence.
I accept that the sentence is at the upper end of the scale, and it may not have been a sentence that I would have imposed. But that is not the question before this Court. It is not without relevance that there was no application for leave to appeal against the sentence of 12 months imprisonment on the other offence. This approach is quite understandable. An argument that the sentence of 12 months for the single act of penetration of the child concerned did not fall within an appropriate discretionary range could not be sustained. When regard is then had to the "five or six separate occasions" of sexual intercourse that occurred in connection with the offence, the subject of the application, it would be difficult to suggest that a starting point of 4 years imprisonment (which was fixed upon by the learned Judge) was inappropriate.
In all the circumstances, I am not persuaded that the sentence imposed by L A Jackson DCJ was beyond the range of a sound sentencing discretion. While I would allow the application for leave to appeal against sentence, I would dismiss the appeal.
ANDERSON J: I have had the advantage of reading in draft the judgment of Ipp J, with which I entirely agree. I would dismiss the appeal against conviction, allow the application for leave to appeal against sentence but dismiss the appeal against sentence.
HEENAN J: I agree with reasons to be published by Ipp J. I also would grant leave to appeal against both conviction and sentence but would dismiss the appeals.