37 It necessarily follows from the jury's verdict that it had, by a majority, found that the elements of the offences of sexual penetration had been proved beyond reasonable doubt. I do not consider that any miscarriage of justice has arisen because the alternative verdict was not left to the jury.
38 This ground of appeal has no reasonable prospect of success.
Ground 3 - unsafe verdict
39 This ground has been added in handwriting to the typewritten grounds of appeal. There is a further handwritten indorsement later in the document - 'Only witness was unreliable' - which appears to be an elaboration of this ground.
40 On the hearing, the appellant orally raised two grounds upon which he submitted that the verdict was 'unsafe'. The first was that at the relevant time he was working every day until 6.00 pm so the complainant's evidence that the offences occurred in the afternoon was demonstrably incorrect. The second was that the evidence of both the complainant and her mother was unreliable because they contradicted both themselves and each other.
41 Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal and to set aside a verdict of guilty if, in its opinion, having regard to the evidence, the verdict is unreasonable or cannot be supported. Although the word 'unsafe' used in the ground of appeal does not appear in s 30(3)(a), I take it to be the appellant's intention to rely upon that provision.
42 The question for this court is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. That is, whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. In determining the question, the court must undertake its own independent assessment of all of the evidence. It is not simply a question of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. However, full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.
43 See also Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 and Scriva v The State of Western Australia [2010] WASCA 89.
44 On the first ground, the appellant's immediate difficulty is that there was no evidence which might be capable of supporting it; that is, there was no evidence that the appellant did not return home from work until 6.00 pm. As I have said, the appellant did not give evidence and no evidence was called on his behalf. In the course of cross-examination, however, the appellant's counsel elicited from the complainant's mother that she had observed the appellant's vans leaving his house in the very early hours of the morning and returning mid-afternoon (ts 132). It was not suggested to her that in fact the appellant returned home at a later time. That was the only evidence as to the appellant's working hours and it was consistent with the complainant's evidence that the appellant was at home when she went to his house in the afternoon after school.
45 The second ground, that both the complainant's evidence and her mother's evidence were unreliable because they contradicted both themselves and each other, was put in the most general terms. No particular instances were identified. It appears from the trial transcript that the only conflict between the evidence of the complainant and her mother related to the circumstances in which the complainant told her mother of this offending. The complainant gave evidence that at some time after the appellant went to prison for the earlier offences she told her mother about these offences while they were in the car. The complainant said she did so because she was worried she would get into trouble (ts 39 - 40). The evidence of the complainant's mother, on the other hand, was that the complainant told her of the first offences while they were in the car but that these offences were revealed as the result of an incident, involving the complainant and one of the complainant's cousins, which occurred while she (the mother) was visiting her sister on 23 June 2011 (that is, after the appellant was convicted but before he was sentenced for the earlier offence). The incident caused the mother to ask the complainant whether she knew what sex was. The complainant told her that it involved putting the penis in the anus and that the appellant had done it to her (ts 116 - 117). In cross-examination, the complainant had denied the incident with her cousin and could not recall a conversation of the nature her mother described (ts 41 - 42).
46 Those inconsistencies are not capable of giving grounds to believe that the verdict is unreasonable or cannot be supported. They were of a minor nature and explicable by the fact that a young girl was being asked to recall events some years after the incident. They were revealed to the jury in the course of the cross-examination of the complainant and the jury, who saw and heard both witnesses, was in the best position to assess their significance.
47 An assessment of the evidence reveals no other conflicts or inconsistencies of any significance in, or between, the evidence of the complainant and her mother.
48 This ground of appeal has no reasonable prospect of success.
Ground 4 - non-disclosure by the State
49 This handwritten ground is again supplemented by an additional handwritten annotation on the appellant's case, 'Denied access to missing court exhibits - witness DVD by the court'.
50 It became apparent at the hearing, however, that the appellant's complaint was two-fold. The first was that the State had failed to disclose a statement made by the complainant on 18 October 2012, with the result that when the complainant's evidence was recorded on 19 October 2011 for the purposes of the trial the appellant's counsel was unable to cross-examine the complainant about discrepancies between that statement and a statement that she had given on 12 August 2011. The second was that the State had failed to disclose a video record of interview by police with a cousin of the complainant, MC, in connection with offending by MC against the complainant.
51 For present purposes, the relevant principles are not in doubt. Under s 95 of the Act, the prosecution is required to serve upon the accused any evidential material that is relevant to a charge which is to be prosecuted in a superior court of this State, including a copy of any document or object that may assist the accused's defence. That obligation is to be discharged within the prescribed period after an accused is committed for trial, and is a continuing obligation which must be satisfied 'as soon as practicable' at any time thereafter if the prosecutor receives or obtains evidentiary material that is relevant to the charge: The State of Western Australia v JWRL (a child) [2010] WASCA 179 [58].
52 However, the obligation to disclose is not unqualified. Whether material may assist an accused's defence requires an assessment of whether material in the possession of the organisation that conducted the investigation has that character. This requires a 'sensible appraisal by the prosecution' of whether available material could assist the defence: Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 [14]. Thus the obligation to disclose arises where, on a sensible appraisal, it can be reasonably anticipated that that material would assist the defence: Vo v The State of Western Australia [2012] WASCA 6 [28].
53 Whether the prosecution breached its duty of disclosure is to be assessed at the time the disclosure is to be performed: White v The Queen [2006] WASCA 62 [194]; Vo [29].
54 There is no substance in the appellant's first complaint. The evidence of the complainant was recorded for use at the trial at a hearing on 19 October 2012, the day after the complainant made the statement. At that hearing, counsel for the State referred to an 'addendum statement' of the complainant of 18 October 2012, without comment by the appellant's counsel, and then led from the complainant oral evidence to precisely the same effect as the content of the statement (ts 26 - 27). Counsel for the appellant cross-examined the complainant about some of the differences between that evidence and her statement of 12 August 2011 (ts 43 - 45). It is evident that the appellant's counsel was not taken by surprise by the reference to the statement of 18 October 2012 and it is to be inferred that he had a copy of it. If he did not, it is evident that he was satisfied for its contents to be disclosed by way of oral evidence.
55 The second complaint is that the video record of the police interview with MC should have been, but was not, disclosed by the prosecution. The reference to MC requires some explanation. Evidence was given at the trial that MC had pleaded guilty in the Children's Court to one count of sexual penetration of a child under the age of 13 years and three counts of indecent dealing with a child under the age of 13 years. MC was 11 years of age at the time. The victim was in each case the complainant and the offending occurred in April 2008 (sexual penetration) and in December 2008 (indecent dealing) (ts 158 - 161). In the course of his cross-examination of Detective Youlden, counsel for the appellant had Detective Youlden read out the statement of material facts in respect of each of those offences, the facts bearing a number of similarities to the description the complainant had given of the appellant's offending. The obvious purpose was to suggest to the jury that the complainant had attributed to the appellant offending that had in fact been committed by MC, and indeed in cross-examination that proposition was expressly put to the complainant, who denied it. The jury by its verdict also plainly rejected it.
56 On the appeal, the appellant asserted that in an interview with police, MC had stated that he, another cousin and the complainant had viewed pornography together on the internet. The appellant contended that the video record of interview should have been disclosed to him because the statements by MC as to the viewing of online pornography by the complainant provided alternative explanations which could have been put to the jury for the complainant's knowledge of sexual matters and also for the offending which she had described, namely that she had seen the conduct on the online pornography and in a confused state of mind thought it had occurred to her at the appellant's house.
57 There was, however, no evidence that MC had made a statement that the complainant had viewed online pornography with him. The appellant did not produce a copy of the video record of interview with MC and a copy was not before us. Moreover, even if MC had made such a statement, it would not be sufficient to found the appellant's contention. That contention depended upon the complainant having not only viewed pornography, but having viewed conduct of the same nature as she had attributed to the appellant. In his submissions the appellant did not assert that MC's statement went that far. The proposition that the statements alleged to have been made by MC supported a contention that the complainant had misattributed to the appellant conduct which she had seen online was therefore entirely speculative.
58 This ground of appeal has no reasonable prospect of success.
Ground 5 - mental incompetence of only witness
59 In relation to this handwritten ground the appellant's case has a further handwritten notation, 'Only witness was clearly incompetent and the judge was aware of this'. In fact, three witnesses gave evidence at the trial, the complainant, the complainant's mother, and Detective Youlden. All were called by the State. On the hearing of the application for leave it became clear that this ground related to the complainant.
60 This is not the first occasion on which the issue of the complainant's competence to give evidence has been raised. The same ground was relied upon by the appellant in the appeal against his earlier convictions. In that case, the applicable legal principles were canvassed by McLure P (with whom Pullin JA and Allanson J agreed): JAW [15] - [19]. It is unnecessary to repeat them. McLure P also set out in full the questions the trial judge had asked the complainant for the purpose of assessing whether the complainant was competent under s 106B(3) of the Evidence Act 1906 (WA), and the complainant's responses to those questions. Her Honour concluded (at [21]) that based on the exchange between the complainant and the trial judge there was a reasonable factual foundation for the trial judge's opinion that the complainant was competent under s 106B(3). Again, it is unnecessary to repeat the exchange.
61 At the time of this trial, the complainant was some 18 months older. There was nothing to indicate that her competence to take an oath or make an affirmation under s 106B had deteriorated. Indeed, it might reasonably have been expected that her competence would have improved rather than diminished. However, in assessing whether the complainant was competent to give evidence, the trial judge followed the same procedure as had been followed in the earlier trial. The questions his Honour put to the complainant and her responses to them were substantially to the same effect as in the earlier trial. On the basis of the complainant's answers, his Honour concluded that the complainant was competent under s 106B(3). In my view, the exchange between the complainant and his Honour clearly provided a reasonable factual foundation for that conclusion.
62 This ground has no reasonable prospect of success.
Conclusion on conviction appeal
63 I would refuse leave to appeal and dismiss the appeal against conviction.
The appeal against sentence
The sentencing remarks
64 After outlining the facts as set out above, the sentencing judge observed that the appellant had encouraged the complainant to visit his house in what was evidently part of a process of grooming. His Honour noted that the earlier offences by the appellant against the complainant had occurred in about the same period as the current offences but declined to treat the current offending as part of a series of offending. His Honour considered the current offences to be separate and discrete, and to be much more serious than the earlier offences.
65 The sentencing judge noted that the appellant had other prior convictions for sexual offending against children. In 1994, the appellant was fined for wilful exposure. In 1995, he was convicted of nine sexual offences against his step-granddaughter, involving indecent dealing and digital and penile penetration while the victim was aged between 5 and 11 years old. He was sentenced to 7 years' imprisonment and was released on parole after 4 1/2 years. In 2004, the appellant was convicted of seven sexual offences involving his 4-year-old step-grandson. He was sentenced to 2 years' imprisonment. His Honour noted the escalating seriousness of the appellant's offending (ts 234).
66 His Honour observed that during those terms of imprisonment the appellant had undertaken sex offender treatment programmes but it was apparent that the programmes had not deterred him from further offending. The psychologist's report found that the appellant was of a high risk of re-offending. The sentencing judge considered that the appellant had shown no remorse and there were no significant mitigating circumstances.
67 The sentencing judge noted that the appellant was 66 years of age at the time of the offences and 69 years of age at the time of sentencing. He was in good health. His Honour noted that the appellant had an unhappy childhood and was sexually abused by a family friend. He had been gainfully employed for most of his working life and was married for 21 years. However, this marriage ended following his release from prison in 2000. The appellant had since had an online relationship with a woman who lived in the Philippines but that had recently ended.
68 The sentencing judge observed that if the appellant had been sentenced at the same time for all of the offences against the complainant, it was likely that some degree of concurrence would have been allowed. His Honour said he would take that into account in the sentences he imposed for the current offences. He sentenced the appellant as follows:
| | | | |
| | | | 5 years 4 months' imprisonment (head sentence) |
| | | | |
| | Inciting a child under the age of 13 years to do an indecent act, contrary to s 320(5) of the Criminal Code (lick appellant's penis) | | |
69 The total effective sentence was therefore 5 years and 4 months' imprisonment. He ordered that the sentence be served cumulatively upon the sentence imposed on 14 July 2011, a combined total effective sentence of 10 years' imprisonment. The sentencing judge said that he considered a total effective sentence of 10 years' imprisonment was appropriate for the overall criminality involved in all the offending against the complainant. The appellant was made eligible for parole.The grounds of appeal
70 The appellant relied upon the following grounds of appeal:
1. The learned judge erred in imposing a total effective sentence which infringed both limbs of the principle of totality, having regard to the total criminality involved in the various offences viewed in their entirety and all the circumstances of the case, including those referable to the appellant personally, including the fact the sentence was ordered to be served entirely cumulatively upon a term the appellant was already serving. 2. The learned sentencing judge erred by failing to make any allowance for the fact that the conditions of the appellant's incarceration would weigh more heavily on him than they would on a younger healthier prisoner.
Disposition of the sentence appeal 71 The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
72 The second limb is that the court should not impose a crushing sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. Counsel for the appellant acknowledged that the second ground of appeal overlapped with this limb.
73 The totality principle also applies in circumstances where the offender is serving a sentence for another offence or other offences at the time of sentencing: Martino [17]; The State of Western Australia v Fleming [2010] WASCA 162 [29].
74 This court cannot, however, intervene merely because it would have exercised the sentencing discretion differently to the sentencing judge. It can only do so if a material error on the part of the sentencing judge is shown. A contention that a sentencing judge infringed the totality principle involves an allegation that error is to be inferred from the result. In such a case, it is necessary to show that the sentence was so unreasonable or unjust that the appellate court is compelled to the conclusion that, although it is not possible to discover the exact nature of the error, a substantial wrong has nevertheless occurred: Wilson v The State of Western Australia [2010] WASCA 82 [2].