Jacobsen v The State of Western Australia - [2015] WASCA 191

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JACOBSEN -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 191

CORAM: McLURE P
MAZZA JA
BEECH J

HEARD: 12 AUGUST 2015

DELIVERED : 17 SEPTEMBER 2015

FILE NO/S: CACR 159 of 2014
CACR 160 of 2014

BETWEEN: STEVEN RUSSELL JACOBSEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :IND 1375 of 2013

Catchwords:

Criminal law - Sexual offences - Appeal against conviction - Error of law - Whether the trial judge ruled evidence admissible when it was inadmissible hearsay - Whether, if the impugned evidence was not inadmissible hearsay, the trial judge wrongly admitted the evidence pursuant to s 31A of the Evidence Act 1906 (WA)

Criminal law - Sexual offences - Application for leave to appeal against sentence - 18 months' imprisonment - Manifest excess

Legislation:

Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 320
Criminal Procedure Act 2004 (WA), s 98
Evidence Act 1906 (WA), s 31A

Result:

CACR 159 of 2014:
Leave to appeal on ground 2 refused
Appeal dismissed

CACR 160 of 2014:
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J Scholz

Solicitors:

Appellant: Gunning Young Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

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

Ferry v The Queen [2003] WASCA 207
Hodder v The State of Western Australia [2005] WASCA 257
Hughes v The State of Western Australia [2015] WASCA 164
P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69
PDT v The State of Western Australia [2012] WASCA 134
Subramaniam v The Public Prosecutor [1956] 1 WLR 965

McLURE P: I agree with Mazza JA.
MAZZA JA: Before the court are the appellant's appeal against conviction and his application for leave to appeal against sentence.
The appellant was tried in the District Court by Goetze DCJ and a jury on one count of indecent dealing with a child under the age of 13 years by pushing his erect penis against her genital area through a layer of clothing contrary to s 320(4) of the Criminal Code (WA) (count 1), and one count of sexual penetration of a child under the age of 13 years by penetrating her vagina with his finger contrary to s 320(2) of the Criminal Code (count 2). The alleged victim in each charge was a girl, L, who was born on 29 October 1995.
On 21 May 2014, the appellant was convicted of count 1 and acquitted of count 2.[1] On 27 August 2014, he was sentenced to 18 months' imprisonment with eligibility for parole.
[1] The certificate of final outcome is incorrect as it reflects the appellant as being convicted of count 2 and acquitted of count 1 (BB 3 ‑ 4).
The appeal against conviction relies upon two grounds. Each ground concerns two portions of L's visually recorded interview with police made on 26 June 2012 (the VRI). Ground 1 alleges that the learned trial judge made a wrong decision of law when, over objection, he ruled the evidence admissible when it was inadmissible hearsay. Leave to appeal has been granted in respect of this ground. As the appellant's counsel explained to this court, ground 2 is an alternative ground (appeal ts 6) to the effect that, if the impugned evidence was not inadmissible hearsay, the appellant alleges that the learned trial judge wrongly admitted the evidence pursuant to s 31A of the Evidence Act 1906 (WA). The question of leave to appeal in respect of ground 2 was referred to this court.
The proposed grounds of appeal against sentence, as originally framed, alleged that the sentence was manifestly excessive both as to type (proposed ground 1) and length (proposed ground 2). The question of leave to appeal in respect of each of these proposed grounds was referred to this court. At the hearing, the appellant's counsel abandoned proposed ground 1 (appeal ts 8).

The evidence at trial

Uncontroversial facts

L's mother is R. Her father died in 2003. L has two step‑sisters born to R, V and E. Both are considerably older than L. At all relevant times, R and L lived in a house in the suburb of Woodvale (the Woodvale house). V and E mostly lived elsewhere, but stayed for intermittent periods at the Woodvale house, or at least visited those premises.
In early 2001, when L was five years of age and in year one at the local primary school, R met the appellant through a mutual friend, J. At the time, the appellant was about 35 years old. The appellant shared a house with J, who had a daughter about L's age.
In April 2001, R, E and L went on an overnight camping trip to Dwellingup. The appellant, J and his daughter, and a couple and their young son, were among those who also went on the trip.
The appellant quickly became a trusted family friend to R, although their personal relationship was always platonic. He would visit the Woodvale house from time to time and, on a number of occasions, babysat L when R was at work. He would usually sleep over at the Woodvale house each time he visited.
Whenever the appellant visited the Woodvale house, he quickly focused his attention upon L. On his own evidence at trial, the appellant considered L to be his 'good friend' despite their age gap (ts 357 ‑ 358). The appellant and L did things together, such as watch television, play outdoors, engage in computer games and read. It was not uncommon for him to hug L, or put his arm around her while they watched television together, nor was it uncommon for L to sit on the appellant's lap (ts 358, 363 ‑ 364). On occasions, the appellant telephoned the Woodvale house to speak only to L.

L's evidence

L's evidence was pre‑recorded on 23 April 2014 and played to the jury at trial. Her examination‑in‑chief, in large part, comprised the VRI.
L described the appellant as a family friend who 'helped out a lot' (BB 75).
She recalled the camping trip at Dwellingup. She said she spoke with the other young girl on the trip (J's daughter). Her evidence of that conversation is the subject of the appeal against conviction, which I will deal with later in these reasons.
L said that the appellant sexually interfered with her on 'multiple occasions' (BB 99) at the Woodvale house, but the incident she recalled in the most detail was the first occasion on which it occurred. It is this incident which was the basis of the charges brought against the appellant.
L said that she was at home with the appellant who was babysitting her. At the time, she was in year one. The appellant, who was sitting at the computer desk in the family room, asked L if she wanted to see a 'magic trick'. L said she did. She went over to the appellant, who picked her up and sat her on his lap facing the computer. Each of them was clothed.
With respect to count 1, L said that she felt the appellant's erect penis against her bottom and genital area. She described the appellant as moving his penis around these areas without using his hands. This, it appears, was the so‑called magic trick.
With respect to count 2, L said that the appellant then put his hand down her pants, beneath her underwear and rubbed her vaginal area. In the VRI, L described the appellant as 'pretty much stimulating my clitoris' (BB 88). In her pre‑recorded evidence, her description of what occurred varied somewhat. In addition to rubbing her, she said that the tip of one of his fingers went into her vagina (ts 156 ‑ 157).
During the incident, L said that the appellant was 'breathing really heavily' (BB 89).
L said that, although she felt uncomfortable at the time about what had occurred, she trusted the appellant and thought he was doing something normal (BB 89). When the offending ended, the appellant asked L 'if [L] enjoyed it', and whether 'the magic trick was good' (BB 96).
L did not immediately tell R or anyone else what had occurred. She said that the first person she spoke to about the incident was R when she was around 13 years of age. She said she told R about the 'magic trick' (count 1), but not about anything else (BB 97 ‑ 98).
In 2012, L spoke to V about what had occurred. By then, V was a police officer. Among other things, L told V ‘about the magic trick’ and also 'that he had put his hands down [L’s] pants' (BB 99).
As to L's relationship with the appellant, she recalled that, on occasions, the appellant played a game with her during which he invited her to look for lollies hidden in the pockets of his pants. She said that, when she did so, she felt 'nothing really abnormal just lollies, or nothing' (BB 101) (the lolly game).
L was cross‑examined at some length and in detail. She confirmed the truth of the allegations made by her.
L accepted that she did not immediately complain about the appellant. In re‑examination, she explained (consistently with her examination‑in‑chief) that, at the time the offences were committed, she did not think anything was wrong (ts 191).
L confirmed that, when she was 13, she told R that the appellant had put his hands down her pants (ts 180). She did not accept propositions put to her by defence counsel that, prior to 2012, both R and V had asked her if the appellant had behaved inappropriately towards her and that she had answered in the negative.
L denied that the allegations against the appellant had been suggested to her by V. However, she agreed that her recollection about the appellant asking her to take lollies from his pocket was V's recollection rather than hers (ts 187 ‑ 188).
L agreed that, in the VRI, she did not say that the appellant had inserted his finger into her vagina. She explained that she found the VRI to be 'terrifying' (ts 174). Defence counsel drew L's attention to a statement L made to police in 2013 in which she disclosed that the appellant had inserted his finger into her vagina (ts 177 ‑ 178).
Defence counsel asked L about various aspects of her life between 2010 and 2012. L accepted that during this period, she:
(a)'wagged' school;
(b)had difficulties in her relationship with R;
(c)consumed alcohol and illicit drugs to excess;
(d)self‑harmed;
(e)lived away from home;
(f)was 'couch surfing'; and
(g)tried to jump from a carpark in Perth, and on another occasion, walked in front of a train (ts 164 ‑ 166).
L agreed that, in 2012, she was 'pretty vulnerable' and that she was not ‘feeling herself' (ts 166). She denied that her alcohol and drug use had affected her memory (ts 189 ‑ 190).
Defence counsel cross‑examined L about the camping trip to Dwellingup. She confirmed propositions put to her that the little boy who was also on the trip inappropriately touched her vagina (ts 185). She denied a suggestion that, as I understand it, she was attributing to the appellant what the little boy had done to her.
In re‑examination, she said that she did not blame the appellant for her personal problems between 2010 and 2012 (ts 193).

R’s, E’s and V’s evidence

R, E and V testified as to the relationship between the appellant and L.
R testified that, during the camping trip to Dwellingup, she saw the appellant carry L and J's daughter under each arm, upside down, and that each girl held the appellant's erect penis through his shorts. Both the appellant and the girls were laughing (ts 254 ‑ 255). R asked the appellant what he was doing. The appellant answered to the effect that the children were merely ‘curious’ (ts 255). R said that she responded to the effect that the appellant’s behaviour was inappropriate. This evidence was, in substance, reiterated in cross-examination (ts 274 ‑ 275, 277). R said that the appellant mostly interacted with L when he visited the Woodvale house. R said that she saw them together at the computer, watching videos, or playing games (ts 263 ‑ 267). R testified that she observed the appellant play a game with L in which he would take an object, such as a lolly (or similar), put it in the pocket of his shorts and ask L to retrieve it. R said she saw this occur 'multiple times' (ts 268). R said that she told the appellant that this behaviour was inappropriate. She recalled such a conversation occurring the night before the last time she saw him in July 2003 (ts 268 ‑ 269, 279). R also recalled that the appellant had told her that he did not wear underwear (ts 266).
E testified that, in 2001, she lived intermittently at home and, on occasions, she observed the appellant's interaction with L. She said that whenever she saw the appellant, he would spend the majority of his time with L. She said:
[The appellant] would come around and he - he spent the majority of my - of his time with my younger sister, [L], whether it be playing out the front, on the computer or playing out the back. He - he was always very focused on [L]. There was never - I don't remember - I don’t' recall him every coming in and having a coffee with mum or - or me for that matter, it was always [L] (ts 294).
V said that, in 2001, she was living in Sydney, but returned to Perth on several occasions to visit R. In early 2002, she returned to Perth permanently. She observed the appellant's interaction with L which she described in this way:
He'd sit in the front lounge room of the [Woodvale] house with [L]. They'd sit on the couch. He'd sit very close to [L] where they're - they're so close their legs were touching. He'd - he was always touching [L] in some way, not in a bad way. He had his arm around her or he stroked her face or he was tickling her or he had her on his back, he had her on his shoulders. He was always - I would describe it as he was always touchy, touchy feely with [L]. He was always touching her in some way, shape or form and his interaction with her was [that] they would read a book, play games, watch kids [sic] movies on TV like Disney movies and things like that but he was always with [L] (ts 309; see also ts 311, 314 ‑ 315).
As to complaint, R said that the first time she became aware of any allegations against the appellant with respect to L was through V in 2012. R said that when L was 'only a little girl' she asked her if the appellant had 'ever touched her in places she shouldn't be touched', to which L replied 'no' (ts 290).
R, E and V all testified that the appellant showed them a photograph album in which there was a section which contained photographs of naked children (ts 267, 295, 311 ‑ 312). In R’s cross‑examination, defence counsel tendered the photograph album into evidence (exhibit 3; ts 288). The description of the album's contents by R, E and V are accurate. In cross‑examination, R and E said that they were aware that the appellant was a nudist (ts 283, 298 ‑ 299).

The appellant's evidence

The appellant testified in his defence. The appellant denied that he had a sexual attraction to L, or to children generally (ts 338, 357 ‑ 358, 361, 372, 377). He specifically denied indecently dealing with L, or sexually penetrating her (ts 337 ‑ 339, 375, 377, 379).
The appellant described his relationship with L as 'close' and, as I mentioned earlier in these reasons, he said he classed her as a friend. He described her as a 'very clingy girl' who 'demanded [his] attention' (ts 338).
The appellant said that he and L hugged and that she would sit on his lap when they played on the computer together (ts 337, 357 ‑ 358, 364). He denied playing the lolly game with L (ts 336). He said that, due to a thyroid condition, he often felt hot and consequently, he wore shorts most of the time (ts 337, 365). He maintained that he always wore underwear in public (ts 366).
The appellant recalled the camping trip to Dwellingup. He said that he gave L and the other little girl a 'wizzy dizzy', which involved holding one child over each shoulder and spinning them around, but he denied any incident where the children were 'dangling' from him and hanging onto his penis (ts 332).
The appellant accepted that, from time to time, he babysat L and visited the family, although not as many times as alleged by R (ts 360). He agreed that, when he visited the Woodvale house, he spent the majority of his time with L (ts 361).
The appellant accepted that R expressed concerns to him about inappropriate behaviour towards L (ts 373).
When asked in cross‑examination how his contact with R's family ended, he said:
Like I said, [L's] being clingy, her mum didn't like it and just asked me to try and keep my distance, which I did but [L] kept on being close but she kept on going off at me because of [L] being - coming - being close to me. And I didn't like the fact that she kept going off at me for her daughter coming over to me. Why didn't she just tell her daughter to stay away or go find something else to do? Why did she have to keep going off at me? And it just got to the point where I'd had enough and I just decided to stay away (ts 379).
The appellant explained that he was a member of a nudist club and that he had an interest in photography (ts 339 ‑ 347). He agreed that he had taken the photographs of naked children that were found in the photograph album, but that he had done so with permission (ts 370). He denied taking or retaining the photographs for any sexual purpose - some of which, he said, had been taken some 15 or 20 years ago (ts 377).

The State's case

The State's case was that L was a truthful and reliable witness. The prosecutor submitted that L's evidence that the appellant enticed her to sit on his knee by promising to show her a magic trick was distinctive and something that would be 'burnt into her memory'.
The prosecutor acknowledged that, although there were no witnesses to the events apart from L and the appellant and no corroboration, there was circumstantial evidence which supported L's testimony. The prosecutor identified three categories of circumstantial evidence.
The first category was evidence that pointed towards the appellant having a sexual interest in children. In this regard, the prosecutor pointed to the photographs of naked children in exhibit 3.
The second category was evidence of the appellant's attitude towards L. The prosecutor pointed to the evidence of R, E and V to the effect that it was clear that the appellant regarded L as a friend and that he paid close and affectionate attention to her. The prosecutor argued, in effect, that the appellant did not appear to recognise appropriate boundaries in his behaviour as an adult towards L, a five‑year‑old child.
The third category of evidence related to specific behaviour engaged in in respect of L, which was said to be of an 'overt sexual nature'. The prosecutor pointed to R's evidence of the incident where she observed the two girls holding onto the appellant's penis, and to the lolly game. The prosecutor alleged that the appellant played the lolly game with L for his sexual gratification, and that he enjoyed having L put her hand in his pocket.
It was submitted on behalf of the State that, although L had certain 'difficulties and instabilities' in her life, those problems did not discredit her. The prosecutor drew the jury's attention to L's testimony that she did not blame the appellant for those problems.
The prosecutor submitted to the jury that the appellant was not a truthful witness and that his evidence should be rejected.

The appellant's case

Defence counsel submitted that L's evidence was flawed and could not be relied upon to establish the offences beyond reasonable doubt.
It was submitted that the lack of any prompt complaint was 'very significant'. Defence counsel referred to 'the unusual aspects of this case' and 'the unfortunate circumstances that [L] experienced throughout her life' to submit that these factors made her evidence 'very difficult' to accept.
Defence counsel referred to L's evidence that she was not asked by R about whether the appellant had behaved in an inappropriate way towards her, which was contradicted by R's evidence.

Counsel for the appellant emphasised that, in the VRI, L did not refer to the appellant's finger being inserted into her vagina.
Defence counsel submitted that, if the camping incident had occurred as R alleged, she would not have become friendly with the appellant and invited him to later babysit L.
Counsel for the appellant suggested that R's evidence was exaggerated and that it should not be accepted that the appellant engaged in the lolly game.
Defence counsel argued that the evidence did not establish that the appellant had a sexual interest in children generally, or in L specifically. It was submitted that the nude photographs kept by the appellant were consistent with his participation in a nudist club. The fact that the appellant was friendly towards L was, it was said, of no significance.
Defence counsel reminded the jury that the offences occurred a long time ago on an unspecified day, and that his opportunity to marshal and present a detailed defence had been adversely affected.

The learned trial judge's summing up

No criticism has been made of the learned trial judge's summing up. It is unnecessary to outline his Honour's directions to the jury.

Appeal against conviction

The impugned evidence

As I have already said, the evidence the subject of the grounds of appeal against conviction is contained in the VRI. This evidence was given in the context of L's recollection of what occurred during the camping trip to Dwellingup.
The first impugned excerpt occurred not long after the commencement of the interview when L described the appellant's behaviour towards her in general terms. She said:
I remember going on to a camping trip and there was a girl on the camping trip with me that was a family friend of [the appellant] and I remember I was sitting down together and we talked about what he did with us, cos [sic] we knew it was wrong - - well, we didn't really know it was wrong but we thought something was weird about it (BB 70).
The second impugned excerpt occurred towards the conclusion of the VRI when the interviewers came back to the topic of the camping trip. In response to a question 'did anything happen on that camping trip with [the appellant]?', L replied:
Um, I don't think so. I don't know really, like I think it happened - - something happened with the little girl but, um, something like with me it didn't happen, it was more … (indistinct) … like cos [sic] it was [the appellant] and there was a little girl and then he had like - - there was a younger boy as well but he also did things … (indistinct) … (BB 100).

The rulings

The appellant's trial was initially listed to commence on 22 April 2014, being the Tuesday after the Easter break.
By an application dated 25 February 2014, the State sought to adduce propensity or relationship evidence pursuant to s 31A of the Evidence Act regarding aspects of the evidence of R, E and V; in particular, as to:
(a)observations made concerning the appellant's conduct towards L;
(b)R's account of the incident which had occurred during the camping trip to Dwellingup;
(c)the lolly game; and
(d)evidence as to the contents of the appellant's photograph album.
The State's application was heard and determined by O'Neal DCJ on 2 April 2014. His Honour ruled that the evidence was admissible pursuant to s 31A of the Evidence Act. No challenge to this ruling is made in this appeal (appeal ts 6).
In the course of the application, the prosecutor made reference to various parts of the VRI, including a brief reference to the evidence the subject of the grounds of appeal (ts 17 ‑ 18). It must be assumed that the prosecutor regarded the evidence as admissible. Defence counsel did not submit that the evidence was hearsay.
Late on 17 April 2014, being Easter Thursday and the last working day before the trial, the appellant’s solicitors sent to the Director of Public Prosecutions, and to the learned trial judge's associate,[2] an email outlining a number of objections to the VRI, and asking for the VRI to be edited. Among the objections was a claim that the now impugned evidence was hearsay. It was proposed by the State that the learned trial judge rule on the objections on the first morning of the trial.
[2] It appears that this correspondence was resent by the Director of Public Prosecutions to the learned trial judge’s associate, and to the appellant’s solicitors, on 19 April 2014 due to the associate’s email address being incorrectly typed in the 17 April 2014 email (ts 55).
On 22 April 2014, the jury was empanelled. After his Honour made some preliminary remarks, the jury retired so that rulings could be made on the objections. Defence counsel estimated that the argument would take three quarters of an hour. That estimate proved to be inaccurate. In the course of submissions, his Honour voiced understandable frustration at what had occurred. He said:
Look, the problem with springing this sort of an application on the morning of a trial is that emails come in after staff have gone home and on the weekend, and they go to Mr Clerk of Arraigns, not to me. I get it now and you ask me to knock out parts of [the VRI] without me having the whole of the interview under control and so I'm doing it in sort of a piecemeal fashion (ts 106).
His Honour made various rulings as the argument proceeded. Some of those rulings necessitated the editing of the VRI. His Honour ruled as admissible the parts of the VRI the subject of the grounds of appeal in this court.
As it turned out, the whole first day of the trial was lost. The necessary edits to the VRI were unable to be made in a timely way and consequently, on 23 April 2014, the jury was discharged and the trial was adjourned to commence before another jury on 19 May 2014.

Counsel's obligations

As I have already said, L's evidence was pre‑recorded on 23 April 2014.
The contents of the VRI had been disclosed well in advance of the trial. It is the duty of counsel to identify, at an early stage of the proceedings, evidence which has been disclosed and which is thought to be objectionable. It is expected that parties confer on these matters, failing which they are to be brought before the court for resolution pursuant to s 98 of the Criminal Procedure Act 2004 (WA). As the wording of s 98 makes clear, counsel's duty is to bring any such application before the trial. It is not the usual practice, and it is not proper practice, of superior courts in this State to bring such applications at the eleventh hour and have them ruled upon on the first day of trial. The whole point of the procedure under s 98 of the Criminal Procedure Act is to resolve objections to evidence well in advance of trial so that the parties can deal with any rulings and time is not absorbed at trial with such matters.
In the present case, any objections to the VRI could have, and should have, been made and resolved well before trial. At the very latest, they should have been made on 2 April 2014 before O'Neal DCJ. The fact that they were left to the last working day before trial is most regrettable, to say the least.

Ground 1

The appellant’s submissions

The appellant submitted that each of the impugned excerpts from the VRI 'irresistibly' suggested that L had been told by another young girl that the appellant had sexually interfered with her.

The respondent's submissions

The respondent conceded that the second, but not the first, excerpt was hearsay.
As to the first excerpt, the respondent noted that the prosecutor at first instance had sought to justify its admission upon a number of bases, which were no longer maintained on appeal. These bases included that the conversation in question: occurred during the camping trip to Dwellingup; somehow corroborated R's account of the camping incident; and, rebutted any suggestion that L's evidence was a recent invention.
It was argued in this court that it was the fact of the conversation that formed the first excerpt which was relevant. Counsel for the respondent submitted that, in conjunction with other evidence, the conversation could rationally affect the assessment of the probability of a relevant fact in issue, namely that something 'weird' happened with respect to the two girls on the overnight trip to Dwellingup.
The respondent submitted that, notwithstanding that one or both of the impugned excerpts constituted hearsay, the appeal should be dismissed because no substantial miscarriage of justice had occurred within the meaning of s 30(4) of the Criminal Appeals Act 2004 (WA).

Resolution of ground 1

A generally accepted statement of the rule against hearsay is found in Subramaniam v The Public Prosecutor [1956] 1 WLR 965, 970 as follows:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.
The respondent was correct to concede that the second excerpt in the VRI contained a hearsay statement. Although not as 'irresistibly' clear as the appellant claims, the statement that 'something happened with the little girl … something like with me' in the context of a question about the appellant's conduct may reasonably be understood by a jury as meaning that the other little girl told L that she, too, had been sexually interfered with by the appellant.
I do not accept the respondent's submissions with respect to the first excerpt. I do not think that the evidence is relevant in the way claimed by the respondent. The words 'we talked about what he did with us' may, as with the second excerpt, reasonably be understood by a jury to involve a conversation in which the other little girl told L that she, too, had been sexually interfered with by the appellant.
In my opinion, both of the impugned statements were hearsay and thus, inadmissible. His Honour made a wrong decision of law to admit them.

Proposed ground 2

As ground 1 has been upheld, it is unnecessary to decide proposed ground 2, which was an alternative ground. Accordingly, leave to appeal in respect of this ground should be refused. However, I observe that the proposed ground is erroneously premised upon the assumption that the evidence was admitted pursuant to s 31A of the Evidence Act. Neither O'Neal DCJ nor the learned trial judge made such a ruling.

The proviso

This court must allow an appeal against conviction if, in its opinion, the conviction should be set aside because of a wrong decision on a question of law by a judge, unless it considers that no substantial miscarriage of justice has occurred: s 30(3)(b) and s 30(4) of the Criminal Appeals Act.
The respondent accepts that, unless it establishes that no substantial miscarriage of justice has occurred, the appeal against conviction must be allowed. I am prepared to approach the appeal upon this basis.
Recently, this court in Hughes v The State of Western Australia [2015] WASCA 164 [60] ‑ [67] set out the relevant principles as to the proper application of the proviso in these terms:
Pursuant to s 30(3)(c) and s 30(4) of the Criminal Appeals Act 2004 (WA), the Court of Appeal must allow the appeal if in its opinion there was a miscarriage of justice unless it considers that no substantial miscarriage of justice has occurred. The appellant bears the onus of establishing a miscarriage of justice. The responsibility for raising and establishing the proviso (that no substantial miscarriage of justice has occurred) rests with the State.
Both statutory criterion bear two aspects, outcome and process: Nudd v The Queen (2006) 80 ALJR 614 (which focuses on the notion of a miscarriage of justice) and Weiss v The Queen (2005) 224 CLR 300 (the leading authority on the proviso). The close overlap between the two statutory expressions makes it difficult at times to know the precise basis of an outcome. See, for example, Holland v The Queen (1993) 67 ALJR 946, 951 - 952, 954. The leading authority on non-disclosure, Mallard v The Queen (2005) 224 CLR 125, is also illustrative of the challenges in that regard.
As in White v The Queen [2006] WASCA 62 [192] - [193], we propose to approach this appeal on the basis that the breaches of the statutory (and common law) duty of disclosure in this case give rise to a miscarriage of justice that requires the court to allow the appeal unless it considers no substantial miscarriage of justice has occurred.
Weiss, a case in which prejudicial inadmissible evidence was adduced at trial by the prosecution, is authority for the following propositions which address the 'outcome' aspect of the proviso. First, the appellate court must itself decide whether a substantial miscarriage of justice has occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. In particular, the task is not to be undertaken by attempting to predict what a jury, whether the jury at trial or some hypothetical future jury, would or might do. Third, the standard of proof of criminal guilt is beyond reasonable doubt [35], [39].
In particular, the appellate court must make its own independent assessment of the evidence adduced at trial (and any evidentiary material not disclosed) and determine whether, making due allowance for the natural limitations that exist in an appellate court proceeding, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty [41].
Generally, the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict. In that event, the issue is whether the error in question would, or at least should, have had no significance in determining the verdict that was returned by the trial jury [43]. Where the error or miscarriage arises from the absence of evidentiary material relevant to the charge at trial, the question is whether the additional material would, or at least should, have no effect on the verdict that was returned by the trial jury: White [193]. If the answer is uncertain or in the negative, the proviso cannot apply.
It is a necessary, but not always sufficient, condition of the exercise of the proviso that the appellate court is persuaded that the evidence properly admitted at trial (together with any relevant additional evidence) proved beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty: Weiss [44].
The 'process' aspect is engaged where the proviso should not be invoked even though the appellate court is satisfied beyond reasonable doubt of the accused's guilt of the offence on which the jury returned its verdict. Examples in this category include where there has been a significant denial of procedural fairness at trial; a serious breach of the presuppositions of a trial; a failure which departs from the essential requirements of a fair trial; or where the appellate court is deprived of the capacity justly to assess the strength of the case against the appellant [60] ‑ [67].
The decisive issue regarding count 1 was whether the State had proved beyond reasonable doubt that L had been indecently dealt with by the appellant as described. For the State to discharge that burden, the jury had to be satisfied that L's account was truthful and reliable, and that the appellant's denials could not reasonably be true. The trial judge directed the jury accordingly (ts 406 ‑ 407).
The chief evidence against the appellant was the testimony of L; however, this was not the only evidence against him. In support of the State's case were the testimonies of R, E and V to the effect that the appellant had a sexual interest in children generally and, within that general interest, a specific sexual interest in L. The evidence as to the appellant's general sexual interest in children was further supported by the photographs of naked children in exhibit 3.
The appellant's particular and extraordinary interest in L is striking and is demonstrated by his own evidence, for example:
(a)He specifically recalled, when giving evidence in 2014, his last contact with L in October 2002 when he telephoned her for her seventh birthday. He recalled the date because he was upset at the prospect that he did not think he would be able to 'come and see her again' (ts 335 ‑ 336).
(b)He confirmed that L would jump up on his lap when she played computer games (ts 337).
(c)He said his saw his relationship with L as 'close' and he classed her 'as a friend' (ts 338). Further, she 'demanded' a lot of attention from him (ts 338). This is against the backdrop that this was at a time when L was 7 and he was 36.
(d)His evident disappointment after being told by R, two weeks before L's seventh birthday, that L was getting too close to him (ts 339).
(e)During the camping trip to Dwellingup, he gave L and the other little girl a 'wizzy dizzy' and that he would 'hang around them a lot' (ts 353).
It is clear that the appellant did not appreciate the appropriate boundaries which exist between mature adults, on the one hand, and young children, on the other. In my view, his denials that he had a sexual interest in L and that he committed count 1 can carry no weight.
The focus in the case was on whether the evidence of L about the incidents the subject of the charges could be accepted as truthful, accurate and reliable (ts 415, 424). Consistently with that, in his summing up, the trial judge gave a detailed outline of the reasons advanced by counsel for the appellant that L should not be accepted as a truthful, accurate and reliable witness (ts 416 ‑ 418). The two impugned excerpts in the VRI were given no prominence whatever in the trial. They were not the subject of any cross‑examination. They were not referred to in the opening and closing addresses of counsel. They were not mentioned at all in the learned trial judge's summing up.
Whilst I accept that the statements may reasonably have been understood by the jury in the way alleged by the appellant, their meaning was somewhat obscured, and L's recollection of them does not appear to be altogether clear. In the context of the whole trial, the evidence would, or at least should, have had no significance in determining the verdict returned by the trial jury.
I have undertaken an examination of the whole of the record of the trial. I am satisfied that the appellant was proved guilty beyond reasonable doubt on count 1. In undertaking this analysis, I have considered the significance of the appellant's acquittal on count 2. L did not refer in the VRI to the appellant inserting his one of his fingers into her vagina, nor did she mention this incident when she first told R about what the appellant had allegedly done. These matters do not, in my view, adversely impact upon L's credibility, either generally or specifically, in relation to count 1. On my reading of the record, L's evidence in respect of count 1 was consistent and was not shifted in cross‑examination. The appellant had a sexual interest in L and lacked an appreciation as to the appropriate behaviour between adults and children. The evidence shows that the appellant groomed L. The delay in reporting the matter is understandable, having regard to L's age when the incident occurred.
It was not suggested, and it could not reasonably be sustained, that the error made by his Honour was of the 'process' type.
Despite the inadmissible evidence, I am satisfied that there has been no substantial miscarriage of justice. Accordingly, the appellant's appeal against conviction must be dismissed.

Appeal against sentence

Sentencing remarks

None of his Honour's findings of fact are challenged in this appeal (appeal ts 8).
His Honour found that count 1 occurred in this way:
What happened on the particular occasion was that you asked [L] if you - if she wanted to see what you described as a magic trick while you were operating the computer. You lifted her up. You placed her on your lap as you’d done on other occasions. You had an erection, and you pushed your erect penis against her genital area, although you were separated by the clothing that you and she were each wearing (sentencing remarks ts 3).
The learned sentencing judge made these additional findings of fact:
(a)At the time of the offending, the appellant was 34 or 35 years of age and L was five or six years of age (sentencing remarks ts 2).
(b)The appellant was a trusted friend of the family (sentencing remarks ts 2).
(c)The appellant harboured a sexual interest in L, 'notwithstanding the massive age difference between [the appellant] and her' (sentencing remarks ts 2).
(d)There were other occasions on which the appellant had behaved in a sexual way towards L (sentencing remarks ts 2 ‑ 3).
(e)The appellant groomed L and, by his conduct, 'normalised’ touching L, which ‘enabled ultimately the offending to occur' (sentencing remarks ts 5).
The learned sentencing judge characterised the offending as 'serious misconduct' which was deliberate and calculated. His Honour identified the aggravating features as being the disparity in the ages between the appellant and L, and that he had abused the trust that had been reposed in him as L's babysitter.
The learned sentencing judge was provided with a pre‑sentence report dated 16 June 2014 and a psychological report by Ms Tanina Oliveri, a clinical and forensic psychologist, dated 27 July 2014. It is apparent from these reports that the appellant maintained his innocence and expressed the belief that the allegations had been maliciously fabricated.
The appellant had a stable upbringing and has a good relationship with his mother and older sister. He completed secondary school at year 10 and has had, due to physical and mental health issues, limited employment. The appellant suffered head and other injuries after being hit by a car in 1979. Since 1997, he has been in receipt of a disability support pension. He has a history of depression, anxiety and some suicidal ideation. He also has a history of alcohol and cannabis abuse.
Ms Oliveri noted that the appellant admitted that he often sought relationships with single mothers who had children with other men and assisted those women with babysitting. He admitted to having always felt comfortable with children, viewing them as equals. The appellant described to Ms Oliveri a belief that he could have a friendship with children as young as five years old without viewing this as inappropriate. She regarded his comments as 'suggestive of cognitive distortions which are likely to promote an emotional connection to and identification with children, poor boundaries and inappropriate sexual behaviour' (Ms Oliveri's report p 4). Psychometric testing undertaken by Ms Oliveri revealed responses which were suggestive of 'considerable personality dysfunction and many significant clinical symptoms' (Ms Oliveri's report p 4). She noted that, at times, the appellant's thinking appeared 'delusional, fragmented and bizarre' (Ms Oliveri's report p 5).
The author of the pre‑sentence report noted that, while the appellant's sister was supportive of him, she had witnessed inappropriate behaviour by him towards two separate children approximately eight years ago and because of this, she does not permit him to be alone with her own children. Comments the appellant made to Ms Oliveri suggested that he was in 'complete denial of his sexually inappropriate behaviour' (Ms Oliveri's report p 5).
In Ms Oliveri's opinion, the appellant represented a high risk of future sexual offending and that his future victim(s) are likely to be children to whom he has unsupervised access.
The learned sentencing judge noted that Ms Oliveri's opinion as to the appellant's risk of reoffending was based, to some extent, upon an assumption that the appellant had offended against other children. Consequently, his Honour did not accept Ms Oliveri's finding in this regard.
The appellant has a short criminal history of relatively minor matters and has not previously been convicted of any sexual offence. The learned trial judge was provided with a number of character references which spoke well of the appellant and which his Honour acknowledged.

Relevant legal principles

This court cannot intervene merely because, had it exercised the sentencing discretion at first instance, it would have imposed a different sentence. Rather, its jurisdiction to allow an appeal against sentence is predicated upon the appellant demonstrating a material express or implied error by the court at first instance.
An allegation that a sentence is manifestly excessive is an allegation of implied error. It is no easy feat to succeed upon such a basis. What is necessary is that this court concludes that the sentence is so plainly unjust or unreasonable that it must infer that a substantial wrong has occurred.
The orthodox approach to an allegation of manifest excess is to examine the sentence imposed, having regard to the maximum penalty for the offence; the range of sentences customarily imposed for the offence; the place which the criminal conduct occupies on the scale of seriousness of offences of that type; and the personal circumstances of the offender.

Proposed ground 2

The appellant's submissions before this court were to the effect that the actual offending was of a low level, and that a sentence of 18 months' immediate imprisonment was inconsistent with cases said to be broadly comparable, including Ferry v The Queen [2003] WASCA 207; Hodder v The State of Western Australia [2005] WASCA 257; P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 and PDT v The State of Western Australia [2012] WASCA 134.
The maximum penalty for an offence contrary to s 320(4) of the Criminal Code is 10 years' imprisonment.
The appellant's submissions as to the seriousness of the offending cannot be accepted. His conduct involved more than the rubbing of his erect penis upon L's bottom and genital area through clothing. The appellant groomed L. The offending itself was calculated and devious in its execution. The appellant breached the trust that had been reposed in him by R. The offending was not an isolated act upon L.
Although the learned sentencing judge was prepared to give some mitigation to what was said to be the appellant's prior good character, in truth, the weight that could be afforded to this was slight. There was no other mitigation. The appellant did not have in his favour a plea of guilty, nor did he demonstrate remorse or rehabilitation.
It is clear that the appellant does not have an appreciation of the appropriate boundaries between adults and children. Having regard to this and the circumstances of this case, it may be concluded that the appellant poses some risk of further offending in the future, although the exact extent of that risk is not known.
There is no tariff for offences contrary to s 320(4) of the Criminal Code. I have read the cases referred to by the appellant's counsel. There are differences between the present case and the cases cited on behalf of

the appellant. For example, both PDT and P involved pleas of guilty. All of the so‑called comparative cases except for PDT involved children nowhere near as young as L. The cases relied upon by the appellant have singular mitigating features not present here and do not support an erroneous exercise of the sentencing discretion in the present case.

Having regard to all of the relevant circumstances, I have not been persuaded that the sentence imposed upon the appellant was plainly unjust or unreasonable. I would refuse leave to appeal and dismiss the appeal against sentence

Outcome and orders

I would dismiss both the appellant's appeal against conviction and his application for leave to appeal against sentence. The orders that I would make are as follows.
With respect to the appeal against conviction, CACR 159 of 2014:
1.Leave to appeal on ground 2 is refused.
2.The appeal is dismissed.
With respect to the application for leave to appeal against sentence, CACR 160 of 2014:
1.Leave to appeal is refused.
2.The appeal is dismissed.
BEECH J: I agree with Mazza JA.