JJR v The State of Western Australia
[2018] WASCA 51
•18 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JJR -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 51
CORAM: MARTIN CJ
MITCHELL JA
CHANEY J
HEARD: 23 NOVEMBER 2017
DELIVERED : 18 APRIL 2018
FILE NO/S: CACR 6 of 2017
CACR 7 of 2017
BETWEEN: JJR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: O'NEAL DCJ
Citation: THE STATE OF WESTERN AUSTRALIA v JJR
File Number : IND 724 OF 2015
Catchwords:
Criminal law - Appeal against conviction - Indecent dealing with de facto stepdaughter - Sexual penetration of de facto stepdaughter - Whether trial judge gave adequate Longman direction - Whether jury's verdicts of guilty were inconsistent with jury's verdicts of acquittal and acquittal directed by trial judge - Whether convictions unreasonable having regard to whole of evidence
Criminal law - Appeal against sentence - Whether trial judge made error of fact in sentencing remarks - Whether total effective sentence manifestly excessive
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr B S Hanbury |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | G A Lacerenza & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AJ v The State of Western Australia [2016] WASCA 13
Allen v The State of Western Australia [2017] WASCA 203
ARK v The State of Western Australia [2014] WASCA 45
CJF v The State of Western Australia [2012] WASCA 69
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
ERA v The State of Western Australia [2013] WASCA 163
GHK v The State of Western Australia [2014] WASCA 19
GHS v The State of Western Australia [2006] WASCA 42
GMS v The State of Western Australia [2009] WASCA 107
JAW v The State of Western Australia [2016] WASCA 40
KMB v The State of Western Australia [2010] WASCA 212
KND v The State of Western Australia [2017] WASCA 36
KSN v The State of Western Australia [2017] WASCA 156
LFG v The State of Western Australia [2015] WASCA 88
LJH v The State of Western Australia [2016] WASCA 155
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
LWD v The State of Western Australia [2017] WASCA 174
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MAS v The State of Western Australia [2012] WASCA 36
MB v The State of Western Australia [2016] WASCA 160
NHT v The State of Western Australia [2016] WASCA 167
Osborne v The State of Western Australia [2013] WASCA 106
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Roffey v The State of Western Australia [2007] WASCA 246
Salkilld v The State of Western Australia [2017] WASCA 168
SG v The State of Western Australia [2013] WASCA 236
SPB v The State of Western Australia [2012] WASCA 136
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Tittums [2018] WASCA 23
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wells v The State of Western Australia [2017] WASCA 27
Williams v The State of Western Australia [2015] WASCA 110
MARTIN CJ:
Summary
Following trial by judge and jury in the District Court of Western Australia, the appellant was convicted of four counts of indecent dealing with, and one count of sexual penetration of, his de facto stepdaughter, LW, and three counts of sexual penetration of, and two counts of indecent dealing with, MW, another de facto stepdaughter and the sister of LW. LW and MW were under the age of 16 at the time of the offences. The appellant was acquitted of four counts alleging the commission of sexual offences involving the same complainants, three by verdict of the jury and one by direction of the trial judge. Various terms of imprisonment were imposed upon the appellant in respect of the offences of which he was convicted in a manner which gave rise to a total effective sentence of 12 years imprisonment.
The appellant applies for leave to appeal against his conviction on what are, in effect, three grounds:
(a)the direction given by the trial judge with respect to the consequences of substantial delay between the alleged offences and the appellant's trial (the Longman direction) was inadequate;
(b)the jury's verdicts of guilty were inconsistent with the jury's verdicts of acquittal and an acquittal directed by the trial judge; and
(c)the appellant's convictions were unsafe and unsatisfactory, having regard to the whole of the evidence.
For the reasons which follow, leave to appeal against the appellant's conviction should be refused, and the appeal dismissed, because:
(a)the direction given by the trial judge with respect to the consequences of substantial delay was, in all the circumstances, adequate;
(b)in all the circumstances of the case, the jury's verdicts of guilty on some of the counts in the indictment are explicable and cannot said to be irreconcilable with the jury's verdicts of acquittal, or the acquittal directed by the trial judge; and
(c)it was open to the jury to accept the evidence given by LW and MW and convict the appellant on the basis of that evidence.
The appellant also applies for leave to appeal against the sentences imposed on what are, in effect, two grounds:
(a)alleged errors of fact in the remarks made by the judge at the time of sentence; and
(b)error to be implied from the imposition of a total effective sentence which is said to be manifestly excessive.
The appellant has failed to establish the alleged errors of fact, which related, in any event, to matters which were not material to the sentences ultimately imposed. The total effective sentence imposed was undoubtedly severe, but not so severe as to manifest error in the exercise of the discretion conferred upon the sentencing judge. Leave to appeal should be refused in respect of the ground alleging express error and, although leave to appeal should be granted in respect of the ground asserting implied error, the appeal should be dismissed.
The indictment
There were 14 counts on the indictment brought against the appellant. Counts 1 - 8 alleged offences of indecent dealing with, and sexual penetration of, LW. Counts 9 - 14 alleged offences of indecent dealing with, and sexual penetration of, MW.
The counts involving LW
Counts 1 - 4 were alleged to have occurred between March 1997 and March 1998 at a country town in Western Australia. Counts 5 - 6 were alleged to have occurred between June and August 1998 on a farm in Western Australia. Counts 7 - 8 were alleged to have occurred between August and October 1999 in a suburb of Perth.
The counts involving MW
All charges relating to MW were alleged to have occurred in the same suburb of Perth. Counts 9 - 10 were alleged to have occurred between August 1999 and April 2001. Counts 11 - 13 were alleged to have occurred between August 2000 and May 2001. Count 14 was alleged to have occurred between April and November 2004.
The prosecution case
LW was born in March 1988, and was therefore between 9 and 11 years old when the offences involving her were alleged to have been committed. MW was born in April 1992, and was therefore between 7 and 12 years old at the time the offences relating to her were alleged to have been committed. The appellant commenced living in a de facto relationship with the mother of the complainants in January 1995, when the complainants were 6 and 2 years old respectively.
Counts 1 and 2
LW gave evidence to the effect that when she was around 9 years old the family were living in a house in a country town. She had her own bedroom. She remembered waking up one night to find the appellant sitting on the end of her bed. She was startled and confused, as this was the first time she had seen him in her bedroom. The appellant was moving his hand up her leg towards her genital area. He took her knickers off and touched the area around the exterior of her vagina with his hand. He also kissed the top of LW's legs and her genital area. She remembered that he had a beard at this time.
LW heard her mother coming down the hallway. According to her, the appellant threw the covers over her and when her mother asked what was going on the appellant said that LW had had a nightmare and that he was putting her back to sleep. The appellant then followed LW's mother to their bedroom.
Counts 3 and 4
Counts 3 and 4 were alleged to have occurred very shortly after counts 1 and 2. According to LW, a little while after the events the subject of counts 1 and 2, the appellant returned to her room. She had not gone back to sleep and the appellant pulled her out of the bed and on to the floor. According to LW the appellant removed his penis from his pants, and placed her hands around his penis. According to LW, the appellant caused her hands to move up and down his penis, before he pushed her head down so that her mouth was touching his penis. This continued for a few minutes. LW was unable to recall how the incident ended but she recalled that the appellant put her back into bed and walked out of the room.
In the course of cross‑examination LW stated that she did not say anything during the incident - she was shocked and scared. She did not open her mouth at all, and did not cry out for her mother. She never thought of saying anything to her mother about the incident because she could see how much her mother was in love with the appellant and how he made her mother happy. LW admitted in cross‑examination that she developed a turbulent relationship with her mother and had lied to a teacher at school when she asserted that her mother had broken her wrist. She also admitted that she had lied to her mother as a child in order to gain her attention.
Counts 5 and 6
Counts 5 and 6 were alleged to have occurred when the family were living on a farm where the appellant had obtained work. The offences were alleged to have occurred while the complainant's mother was in hospital in Perth, awaiting the birth of a child which she and the appellant had conceived. The appellant was caring for the two complainants while their mother was in hospital.
According to LW, she was in the shower washing herself when the appellant came into the bathroom, undressed and joined her in the shower. LW said that this was not unusual, as members of the family showered together in order to save water, which was in short supply on the farm.
LW noticed that the appellant's penis was erect. According to LW, the appellant picked her up and held her close to his body like he was hugging her, before allowing her to slide down his body, when she felt his erect penis touching her bottom. According to LW, the appellant then turned her around so that his penis was touching her vagina. The appellant was still holding her under her arms. He moved her up and down a little bit, causing his penis to rub the outside of her vagina. Then MW came into the bathroom and the appellant put LW down and got out of the shower.
LW finished washing herself and got out of the shower and went into the lounge room to dry herself by the fire (it was the middle of winter). After the appellant had finished putting MW to bed he came into the lounge room wearing only a towel. According to LW, the appellant grabbed her by the lower arms and pulled her onto his lap. The appellant moved his little finger between the labia of her vagina. According to LW, the appellant always grew the fingernails on his little fingers long, and the fingernail on his little finger caused a cut which caused her to scream 'you cut me, you bastard',[1] after which she grabbed her clothes and ran to the toilet. According to LW, the cut hurt a lot. When she got to the toilet she inspected herself and observed blood around the area of her vagina, and a cut between 5 mm and 10 mm long between the outer and inner labia of her vagina.
[1] ts 114.
Count 7
Count 7 was alleged to have occurred in a suburb of Perth, where the family was living at the time. According to LW, one morning her mother and MW had gone out, leaving her in the house with her youngest sister who was then a toddler, and the appellant. LW was sitting on the couch in the lounge room watching television. She was still wearing her nightie. The appellant came and sat next to her. He put his hand on her leg and moved it towards her genital area. When LW went to get up he grabbed her by her lower arm and removed her underwear. According to LW, the appellant then took his penis out of his pants and sat LW on his lap, rocking her backwards and forwards from her shoulders. According to LW, the appellant's erect penis was rubbing the outside of her vagina. After a few minutes something startled the appellant and he pushed LW off and told her to go and get dressed.
Count 8
Count 8 alleged that the appellant penetrated LW's vagina with his finger at about the same time and place as the incident the subject of count 7. However, when the prosecutor asked LW whether she could recall any other incident occurring about the same time as count 7, LW said 'that's pretty much what I can recall'.[2]
[2] ts 122.
As LW gave no evidence capable of establishing count 8, or indeed relating to it in any way, in due course the trial judge directed the jury to acquit the appellant on that count.
Count 9
As I have noted, all the counts relating to offences against MW were said to have occurred when the family was living in a suburb of Perth. In relation to count 9, MW gave evidence to the effect that when she was about 7 years old, she was sleeping on the top bunk of a bunk bed in her bedroom when she awoke to find the appellant on top of her. According to MW, the appellant's crotch was aligned with her crotch area, and his chest was where her face was. He was moving up and down in a thrusting sort of motion with his penis area rubbing against her vagina area. She could feel that his penis was hard against her groin. She was wearing clothing, so there was no skin to skin contact. MW closed her eyes and pretended to be asleep. She could not remember when the appellant left the room.
Count 10
MW's evidence with respect to count 10 was to the effect that she woke up one evening to find herself out of bed on the floor next to her bunk bed. When she opened her eyes she saw the appellant's penis in her face. He then forced his penis into her mouth and moved her head back and forth, by applying his hand to the back of her head. According to MW, the appellant said '[M], its a lollipop'.[3]
[3] The original transcription of this evidence at ts 212 was corrected by the trial judge at ts 435.
MW was unable to recall how the incident concluded, or how she got back into her bed - only that she woke up in her bed the next morning.
Count 11
According to MW she was alone with the appellant at the family house on a hot summer's day. MW was in her bathers because she had been swimming in the pool at the house. According to MW, the appellant applied sunscreen to her body, and while applying sunscreen to her legs moved his hand up inside her bathers and rubbed his finger between the labia of her vagina. According to MW, the appellant was rubbing his finger along the length of her vagina, from the top down to the bottom and around the entrance to her vagina. She just stood there because she was very scared. Eventually she walked away and jumped into the pool.
Count 12
According to MW, on another occasion she was on her hands and knees vacuuming the floor of bedroom, using the hose of the vacuum without any extension. According to MW, the appellant entered the room, pulled down her pants and her underwear to just below her thighs, and then got to his knees and put his penis between her legs hard up against her vagina. He then thrust himself back and forth with his hands placed on her hips. His penis was in direct contact with the outside of her vagina. The incident came to an end when MW heard a noise and said to the appellant 'I think Uncle Shane's here'.[4] The appellant stopped what he was doing, pulled up MW's pants and left.
[4] ts 218.
Count 13
According to MW, the incident the subject of count 13 occurred immediately after the incident the subject of count 12.[5] Her evidence was to the effect that the appellant returned to her room and lifted her on to her bunk bed so that her top half was resting on the edge of the bunk bed. She was lying on her back. According to MW, the appellant put her legs over his shoulders so that her ankles were resting on his shoulders, and put his hard penis against her vagina. According to MW, the appellant pushed the tip of his penis into her vagina using a hand which he had placed on his penis. MW was unable to say how the incident concluded, but said that she replaced her clothes and went to the toilet. When she went to the toilet she noticed that there were three spots of blood in her underwear - each the size of a five cent piece. When she saw the blood she cried out and the appellant came into the toilet and saw her underwear. He left and got her new underwear. The appellant took her old underwear away. MW was unable to say what happened to that underwear.
[5] LW estimated that there was about 30 seconds between the two events - ts 253.
Count 14
Count 14 is alleged to have occurred in the same suburb of Perth as the other counts relating to MW, but in a different house, to which the family had then moved. MW was about 12 years old at the time. According to MW, she went to a second fridge in the dining area to get something when the appellant came up behind her and grabbed her breasts. MW initially said that the appellant fondled her nipples with his fingers, but when questioned was unable to recall whether it was both nipples or only one nipple.[6] When she went to move away the appellant grabbed her from behind in a sort of bear hug, pinned her arms towards her stomach and pulled her body on to his so that her bottom was pushed hard up against his groin. She struggled to get away, went to her bedroom, and got under the covers.
[6] ts 226.
According to MW, the appellant followed her into her bedroom, climbed on top of her, with his legs to each side of her legs. The appellant grabbed her wrists and pushed them hard onto her stomach so that she could not struggle. MW then called out for her younger sister, who came into the room. MW's younger sister thought they were 'mucking around' so she joined in. According to MW, she then managed to wriggle free, after which she jumped out of the bed and ran outside onto the front driveway where it meets the road. The appellant followed her and yelled at her to come inside. MW then yelled to the appellant that she was going to tell her mother what had happened. However, she did not tell her mother because she was scared and did not want to hurt her.
In addition to the evidence which they gave in respect of the specific incidents the subject of the counts on the indictment, each of LW and MW gave general evidence with respect to physical contacts which were initiated by the appellant and which were inappropriate - relating to contact with either their breast or crotch areas.
Complaint
There was evidence to the effect that LW complained to her mother about the appellant's conduct in about 2001, when LW was 12. The evidence suggests that the complaint was followed by a family meeting, but taken no further.
There was also evidence to the effect that in about 2007, when MW was 14 or 15 years old, she told one of her friends that she had been sexually assaulted, and told another friend that a relative had come into her room at night and that 'something really bad had happened'.[7]
[7] ts 332.
In 2013, when LW was 25 years old, she made allegations against the appellant while in a 'pub',[8] and in January the following year made a statement to police. In August 2014 the appellant was arrested and charged with the offences relating to LW.
[8] ts 130, 178.
In June 2015 MW made a statement to police with respect to the offences allegedly committed against her. Later that month the appellant was arrested and charged in respect of those offences.
The defence case
The appellant gave evidence. He emphatically denied all the allegations made against him. He also denied specific aspects of the evidence given by each of LW and MW. For example, he stated that he never showered with either girl in the farmhouse because the shower was not big enough, although he accepted that LW and MW had showered together on occasions at the farmhouse. The appellant asserted that the farm was supplied with scheme water, not rain water from tanks,[9] even though this proposition was not put to LW or her mother. As the jury must be taken to have rejected the appellant's evidence, it is unnecessary to analyse that evidence in any detail.
[9] ts 367, 410.
The appeal against conviction
The Longman direction
As I have noted, the first ground of the appeal against conviction alleges that the direction given by the trial judge with respect to the forensic consequences of the substantial delay between the occurrence of the alleged offences and the time at which the appellant was made aware of the allegations against him was inadequate. As the legal principles relating to the requirements of such a direction have their source in the decision of the High Court in Longman v The Queen,[10] a direction of this kind is often described as a Longman direction by lawyers, and it is convenient to use the same vernacular.
[10] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
As I have noted, the various offences alleged to have been committed by the appellant were said to have been committed between March 1997 (at the earliest) and November 2004 (at the latest). In the case of the offences relating to LW, the appellant does not appear to have been put on notice of the specific allegations made against him until the middle of 2014. In the case of the offences relating to MW, the appellant does not appear to have been made aware of the specific allegations against him until the middle of 2015. Because of the substantial lapses of time involved, a Longman direction was clearly required in respect of all counts on the indictment.
The Longman direction was given by the trial judge almost immediately before he concluded his observations to the jury. Because the direction should be viewed in its context, I have included the portion of the trial judge's directions immediately before and immediately after the directions specifically relating to the consequences of substantial delay, in the extract which follows:[11]
[11] ts 527 - 528.
… the position is that you must be satisfied beyond reasonable doubt about the truthfulness of the evidence of [LW] or [MW] before you can convict the accused of an offence against them, or one of them.
Because of the crucial nature in this case of their evidence, and because of the seriousness of the allegations each makes, you should scrutinise the evidence of each with special care. You should take carefully into account that the earliest of these events is alleged to have happened some 18 years ago in the case of [LW], and later, some 12 years ago in the case of [MW]. They are allegations of serious sexual crimes.
With the exception of what [LW] said to her mother and to her uncle around the time of the family meeting, no complaint was made at the time. There is no corroboration, no other evidence that these events happened. Both complainants were young girls at the times that they described, and human memory is fallible. The longer the delay, the more opportunity there is for error, and particularly that's so for events occurring in childhood.
It's a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. And that can be so even if you're mistaken in your recollection. As I've said, human memory is fallible, and honest witnesses can be wrong in their recollection.
Also, bear in mind that because of the long delay, the evidence of both complainants can't be adequately tested. It becomes difficult to say exactly when the offences are said to have occurred. By reason of the delay the accused has lost the opportunity to bring forward matters of defence, and to test the evidence of the complainants.
For example, had the accused man known at an earlier time about the exact nature of the allegations, it may have been possible for him to make inquiries of others as to his whereabouts at the time, for example, where he was working, for the purpose of potentially establishing an alibi. It might have been possible to check photographs of his appearance while in [the place where the farm was], to look at the state of his facial hair, and what the state of his little fingernails was.
It would have been possible to get photographs of the bathroom at the … farm to better observe its dimensions and condition. The pink bunk beds might have been available for observation, or perhaps photographs of them.
So this direction that I give you is based on the experience of the courts of the difficulty that accused people have in cases such as this. Because of the long delay it's particularly important that you scrutinise each complainant's evidence with special care.
You're at liberty to act upon it to convict the accused if you're satisfied of the truth and accuracy of it, but it would be unsafe to convict the accused on the uncorroborated evidence of a complainant unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence which I have referred, and taking full account of this warning which I've just given you, you're satisfied beyond reasonable doubt as to its truth and accuracy.
Members of the jury, you've heard the evidence of [JJR] where he denied any offending. If you were to accept that you would, of course, acquit [JJR] of all charges. If what he said in his evidence leaves you with a reasonable doubt with respect to his guilt of the charge or charges on the indictment, then you must acquit him of any such charge where you're left with that doubt.
The State accepts that you can't convict [JJR] of any offence unless you're satisfied beyond reasonable doubt about the truth and reliability of the evidence of a complainant as to a charge involving that complainant: for [LW], her evidence about counts 1 to 7 on the indictment; for [MW], her evidence about counts 9 to 14.
If you don't entirely accept what the accused has said denying any offending as alleged, then the real issue for you is having regard to his denials of any offending, having regard to the delay of each complainant in making any complaint, and the warning that I have given you in respect of the effects of delay, are you satisfied beyond reasonable doubt that the evidence that each complainant or either complainant has given that she was sexually interfered with, is true and reliable?
There is only one aspect of the direction given by the trial judge which is the subject of criticism in the ground of appeal and in the submissions that are advanced in support of this ground. The assertion of inadequacy in the direction given arises from an exchange between counsel for the appellant and the trial judge before directions were given to the jury, with respect to the specific forensic disadvantages which should be identified as arising from the substantial delay. Counsel for the appellant had contended that the substantial delay had caused specific prejudice with respect to the inability to obtain DNA or fingerprint evidence, the inability to medically assess LW to ascertain whether there was any evidence of a scratch or cut between the labia of her vagina, the inability to assess whether there was blood in the area of LW's vagina as she asserted, and the inability to locate and test the underwear which MW asserted contained spots of blood.
In the course of an interchange with counsel for the appellant, the trial judge expressed the view that none of these matters were related to delay of a magnitude which necessitates a Longman direction, because each of the matters identified by counsel for the appellant would have had to have been investigated within hours or at least days - perhaps, at most, a week or two after the alleged offences. Because a Longman direction was only required following a lapse of time measured in at least months, and usually years, after hearing counsel, the trial judge ruled that the matters of specific prejudice identified by counsel for the appellant were not the consequence of the type of delay which necessitates a Longman direction, and would not therefore be enunciated by him in the course of the direction which he was to give to the jury. This aspect of the appeal against conviction essentially challenges that ruling, and contends that the direction given by the trial judge was inadequate because he did not draw to the jury's attention the specific prejudice suffered by the appellant in relation to the matters identified by counsel during the trial, and reiterated on appeal.
There are a number of reasons why this aspect of the appeal against conviction must be rejected. First, although it is well established that a Longman direction or warning 'has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case',[12] the cases suggest that, depending on the facts and circumstances of the case, it will often be appropriate to alert the jury to the character of the forensic disadvantage suffered by an accused as a result of substantial delay by drawing upon examples of specific disadvantage drawn from the circumstances of the case.[13] However, 'there is no requirement that, as a matter of law, a trial judge must, in each and every case, state specific examples of forensic disadvantage.'[14] Nor is there any authority to support the proposition that, when examples of specific prejudice are given by a judge in the course of a Longman warning, those examples must be exhaustive.[15]
[12] SPB v The State of Western Australia [2012] WASCA 136 [53].
[13] See Longman v The Queen; Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161.
[14] Osborne v The State of Western Australia [2013] WASCA 106 [47] per Buss JA (McLure P & Mazza JA agreeing).
[15] MB v The State of Western Australia [2016] WASCA 160 [50] per Martin CJ.
In this case, as will be seen from the direction I have set out above, the trial judge gave a number of examples of the type of specific prejudice which might arise from substantial delay, including the inability to make inquiries as to the appellant's whereabouts at the time of the alleged offences for the purpose of potentially establishing an alibi, the difficulty of obtaining photographs of his appearance at relevant times to compare against the evidence to the effect that he had facial hair at the time of the commission of some of the offences, and to establish the state of his little fingernails, having regard to the evidence given by LW in that respect, the inability to obtain photographs with respect to the bathroom at the farmhouse, to ascertain the size of the shower recess, and the inability to obtain photographs of the bunk beds of which MW gave evidence. These examples were quite adequate to illustrate to the jury the character of the prejudice which an appellant might suffer as a consequence of substantial delay, both in terms of prejudice to the appellant's ability to marshal a defence, and prejudice to the appellant's ability to adequately test and rebut the evidence given by the complainants.
Those matters having been demonstrated quite sufficiently by the examples utilised for that purpose, there is no principle which would require the trial judge to go further, and enunciate the specific matters to which counsel referred in argument prior to the directions being given to the jury. Counsel for the appellant conceded that there is no authority to the effect that a trial judge is obliged to enunciate all conceivable aspects of specific disadvantage in the course of a Longman direction. There is no reason in principle why such an obligation should be imposed upon a trial judge. It follows that this aspect of the appeal against conviction must be rejected for that reason alone.
There is another reason why this aspect of the appeal against conviction must be rejected. As the trial judge correctly observed, a Longman direction requires the trial judge to draw the jury's attention to the consequences of substantial delay.[16]
[16] See, for example, SPB v The State of Western Australia [2012] WASCA 136 [52], per Buss JA (McLure P & Mazza JA agreeing).
It follows that the forensic prejudice to which the warning must be directed is prejudice arising from, and which is causally connected to, the substantial delay. In the circumstances of the present case, the trial judge was correct to observe that in all of the examples raised by counsel for the appellant, any possible forensic advantage would have been lost if the matter had not been thoroughly investigated within hours, days or, at most, weeks after the occurrence of the alleged offences. These are not delays of a kind to which a Longman warning is directed. It follows that the trial judge was correct to rule that the particular aspects of forensic advantage raised by counsel for the appellant were not matters appropriately included within the Longman direction which the trial judge gave.
In the course of argument I expressed, for my own part, a concern as to whether the Longman direction was given in sufficiently emphatic terms and, in particular, a concern as to whether the jury might have regarded the observations made to be a comment by the trial judge rather than, as the authorities require, a warning in 'unmistakeable and firm' or 'clear and emphatic' terms, even though no point had been taken in this regard on behalf of the appellant.[17] Because the State was not on notice with respect to the possibility that this issue may be raised, counsel for the State was given the opportunity to provide subsequent written submissions on the issue. Given that no issue was taken by the appellant in this regard, it is sufficient for present purposes to note that after considering the additional submissions provided on behalf of the State, I am satisfied that the directions by the trial judge were given with sufficient emphasis. At one point, the warning was expressly described as a 'direction',[18] and although expressions like 'miscarriage of justice' or 'dangerous to convict' were not utilised, the jury were expressly directed that it would be unsafe to convict the accused on the uncorroborated evidence of a complainant unless, having scrutinised her evidence with great care, taking full account of the forensic disadvantage arising from delay, they were satisfied beyond reasonable doubt of the truth and accuracy of the evidence.
[17] Appeal ts 22 - 23.
[18] ts 528.
The alleged inconsistency of the verdicts
On behalf of the appellant it is asserted that the jury's verdicts of guilty on ten of the counts in the indictment are inconsistent with the jury's verdicts of acquittal in respect of counts 3, 4 and 12, and the directed acquittal on count 8.
The legal principles relating to an appeal on the ground of inconsistency of verdicts are well established. They were recently summarised, conveniently, by Buss P in KND v The State of Western Australia.[19] Principles relevant to the present case may be succinctly expressed as follows:
•the appellant must satisfy the court that no reasonable jury whose members had properly applied their minds to the facts of the case could have arrived at the verdicts in question;
•if there is a proper way in which the court may reconcile the verdicts and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense;
•the critical issue is whether it was logically and reasonably open to the jury to acquit on some counts and convict on others;
•a jury is entitled to accept part, but not all, of the witness's version of events;
•when a jury acquits on a particular count or counts, there is no general rule that the jury must necessarily be taken to have found the complainant generally to be untruthful - for example, the verdict might be explained by the proper application of the standard of proof to evidence which is uncertain or equivocal, or in respect of which a reasonable doubt cannot be excluded for some other reason;[20]
•in some circumstances, differences in verdicts may be explained on the basis that the jury was cautious and conscientious in reviewing the evidence and discharging its heavy civic responsibility;[21]
•in some circumstances, the differing verdicts may be explained by the jury having taken a 'merciful' view of the facts and circumstances - a capacity which has always been open to, and sometimes exercised by, juries.[22]
[19] KND v The State of Western Australia [2017] WASCA 36 [36] - [38], Buss P (Mazza & Mitchell JJA agreeing).
[20] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [171].
[21] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [364].
[22] See MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 - 368.
The acquittals on counts 3 and 4
On LW's evidence, counts 3 and 4 occurred very shortly after her mother had found the appellant in her bedroom and inquired what he was doing there. According to LW, after that inquiry, the appellant and her mother went to their bedroom, which was relatively close to her bedroom, before the appellant returned, shortly after he had left, to engage in the conduct said to have constituted counts 3 and 4.
At trial, counsel for the appellant submitted to the jury that it was inherently improbable that the appellant would have returned to LW's bedroom in order to engage in further sexual offending, so soon after having been found in the bedroom by LW's mother. The jury were entitled to take the view that the improbability of this sequence of events cast some doubt upon LW's evidence with respect to counts 3 and 4.
There were other aspects of LW's evidence with respect to counts 3 and 4 which might have caused the jury to entertain a reasonable doubt with respect to that evidence, including LW's inability to recall a number of pertinent details such as:
•how or why the incident ended;[23]
•whether the appellant was wearing a top;[24]
•how the appellant removed his penis from his pants;[25]
•which arm the appellant grabbed in order to pull her out of bed and on to the floor;[26]
•whether she made any noise when she landed on the floor from the bed;[27]
•what she was thinking when count 3 was being committed;[28]
•whether she was sitting up or lying down after the appellant placed her back in bed;[29] and
•whether the appellant had put his penis back into his pants before he placed her back on the bed.[30]
[23] ts 107.
[24] ts 149.
[25] ts 149 - 150.
[26] ts 151.
[27] ts 152.
[28] ts 152.
[29] ts 156.
[30] ts 156.
At a point during their deliberations, the jury asked to be read the evidence given by LW relating to charges 3 and 4 after the appellant entered the room.[31] The trial judge read LW's evidence in chief and the evidence which she gave in cross‑examination in respect of those counts to the jury.[32] The jury's request suggests that they were having some difficulty with respect to LW's evidence concerning counts 3 and 4.
[31] ts 540.
[32] ts 543 - 549.
In all these circumstances, the jury's acquittal on counts 3 and 4 may well reflect a cautious and conscientious approach to the discharge of their responsibility, including the responsibility of only convicting the appellant if satisfied of his guilt beyond reasonable doubt. The acquittal of the appellant on counts 3 and 4 does not sustain the conclusion that the jury must have rejected the complainant's evidence with respect to those counts. Rather, the acquittal is consistent with the jury having concluded that they were not satisfied beyond reasonable doubt of the appellant's guilt on those counts, given the physical proximity of LW's bedroom to her mother's bedroom, and the temporal proximity of the alleged events to the earlier occasion upon which LW's mother had found the appellant in LW's bedroom, coupled with the areas of uncertainty in LW's evidence with respect to those counts to which I have referred. But, in any event, even if it could be inferred that the jury had rejected LW's evidence with respect to counts 3 and 4, consistently with the principles to which I have referred, it does not follow that the jury were obliged to reject LW's evidence with respect to the other counts on the indictment. It follows that there is no inconsistency, in the sense in which that term is used in the context of a ground of appeal like this, between the jury's acquittal of the appellant on counts 3 and 4, and their conviction of the appellant on other counts involving LW.
The directed acquittal on count 8
As I have noted, LW gave no evidence relating to the matters the subject of count 8. As a consequence, the trial judge directed the jury to acquit the appellant on that count.
It seems reasonable to infer that LW had forgotten the events which were said to have constituted count 8.[33] It is to be remembered that count 8 was said to have occurred between August and October 1999, when LW was 11 years old, and LW gave her evidence in October and November 2016, when she was aged 28, 17 years after the events in question.
[33] See ts 122.
On behalf of the appellant, it is submitted that LW's inability to recall the events the subject of count 8 has the consequence that the jury could not reasonably have been satisfied beyond reasonable doubt of the reliability of her evidence with respect to the counts on which they convicted the appellant. That submission must be rejected. LW's inability to recall something which occurred 17 years earlier, when she was a child, does not, of itself, compel the conclusion that she was incapable of accurately recalling anything that occurred around the time of the alleged offences. The jury had benefit of seeing and hearing LW give her evidence, and of assessing her credibility. Consistently with the principles to which I have referred, it was open to the jury to conclude that aspects of LW's evidence satisfied them beyond reasonable doubt that the appellant was guilty of one or more of the offences with which he was charged, while at the same time not being so satisfied in respect of the evidence given in relation to other offences. The jury had no occasion to assess LW's evidence in respect of count 8 because none was given. However, the fact that a witness may not come up to proof in respect of one aspect of matters which occurred many years earlier does not mean that the jury were obliged to entertain a reasonable doubt with respect to all aspects of that witness's evidence. It follows that there is no inconsistency, in the legal sense, between the verdict of acquittal entered on the direction of the judge in respect of count 8, and the jury's conviction of the appellant on other counts relating to LW.
The acquittal on count 12
As I have noted, MW's evidence was to the effect that the events said to constitute count 12 occurred immediately before the events said to constitute count 13 - separated only by a period of 30 seconds when the appellant left her bedroom because she said that she thought 'Uncle Shane' was there. Each of the two events involved placement of the appellant's penis in direct contact with MW's vagina. It was open to the jury to take the view that, as a matter of substance rather than form, the events depicted by MW involved a single act of penetration interrupted by a brief and insignificant pause, or at least that there was a reasonable doubt as to whether the matters described by MW were in fact a single incident. In the circumstances, it is open to infer that the jury may well have formed this view, and acted on its sense of fairness, by convicting the appellant on only one of the accounts relating to what was, at least arguably, a single incident. It follows that there is no necessary inconsistency between the acquittal of the appellant on count 12, and the conviction of the appellant on count 13, counts 9 - 11, and count 14, for that matter.
For these reasons, the aspect of the appeal against conviction which asserts that the jury's verdicts of guilty were inconsistent with the jury's verdicts of acquittal, and the directed verdict of acquittal, must be rejected.
Unsafe and unsatisfactory
The last aspect of the appellant's appeal against conviction is the assertion that the appellant's convictions were unsafe and unsatisfactory having regard to the whole of the evidence.
The principles of law relating to a ground of appeal of this kind have been summarised by this court many times.[34] It is unnecessary to restate those principles again in this case, and is sufficient to observe that the question which this court must determine is whether, on the whole of the evidence, which must be reviewed by this court independently, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. That question will only be answered in favour of the appellant if the appeal court is satisfied that the jury must, as distinct from might, have entertained a reasonable doubt with respect to the guilt of the accused.
[34] Most recently in Wells v The State of Western Australia [2017] WASCA 27 [13].
In support of this ground of appeal, the appellant has, in effect, reiterated the submissions that were put to the jury in relation to various aspects of the evidence given by each complainant. So, in respect of counts 1 - 2, reliance is placed upon the proximity of LW's mother at the time of the alleged events, the implausibility of LW's evidence with respect to counts 3 and 4 which were said to have occurred shortly after the events the subject of counts 1 and 2, and the implausibility of LW's reasons for not saying anything at the time.
LW's description of the events giving rise to counts 5 and 6 is said to be 'unlikely', 'convoluted' and 'fanciful' because, for example, there was nothing to stop the appellant using his entire hand, or other fingers instead of just his little finger. Attention is also drawn to the lack of any evidence of any cut in the area of LW's vagina.
In respect of count 7, attention is drawn to the lack of complaint by LW to her mother, which is said to cast doubt on LW's evidence generally. It is also asserted that LW's evidence to the effect that she said 'you cut me, you bastard' does not indicate reticence or an inability to express resistance.
Attention is also drawn to LW's inability to recall the events the subject of count 8, the evidence that LW had told lies about other matters in the past, and the absence of evidence that LW's silence was secured by any threat from the appellant. It is also said that LW's explanations for her failure to complain to her mother throughout the period of offending behaviour were implausible.
In relation to the offences concerning MW, it is asserted that the jury must have had a reasonable doubt as to the guilt of the appellant in respect of count 9 because it was very risky for the appellant to have got up onto MW's bunk in order to 'dry hump her'. In relation to count 10 it is asserted that MW's evidence to the effect that she woke up on the floor next to her bed with the appellant trying to insert his penis into her mouth is implausible. In relation to count 11, it is said that MW's evidence is implausible because it is unlikely that she would simply have jumped into the pool after the incident and failed to say anything to her mother when she returned. In this context attention is drawn to the lack of any evidence to the effect that the appellant threatened MW in order to procure her silence.
Attention is also drawn to the acquittal of the appellant on count 12, as compared to the conviction of the appellant on count 13. In relation to count 13 it is also asserted that it is fanciful to suggest, as MW did, that the appellant took a pair of blood-stained knickers from her and gave her another pair without checking to see if she was still bleeding. In relation to count 14 it is said that the jury should have entertained a reasonable doubt as to the appellant's guilt because the event was not corroborated.
As required by the authorities, I have carefully reviewed the written record of the evidence given, with particular attention to the evidence given by LW and MW because, as the trial judge directed the jury, the conviction of the appellant on any count depended upon the acceptance, beyond reasonable doubt, of the evidence given by either LW or MW, as the case may be, in respect of that count. As required by the authorities, I have undertaken that review giving due allowance to the advantage given to the jury of seeing and hearing the evidence given by LW and MW - an advantage not available to me. I also take into account the forensic disadvantage suffered by the appellant by reason of the substantial delay between the occurrence of the alleged offences and the loss of any reasonable opportunity for the appellant to either marshal a defence or impugn the credibility of either complainant.
The matters to which counsel for the appellant drew the attention of the jury at trial, and which have been reiterated on appeal, are all matters which go to a proper assessment of the veracity of the evidence given by LW and MW, as the case may be. However, those matters could only sustain this ground of appeal if the court was satisfied that either singly, or in combination, in respect of any one or more counts, the jury must have entertained a reasonable doubt as to the veracity of the evidence given by the relevant complainant.
The matters to which attention has been drawn by counsel for the appellant in support of this ground are not of a character which, taken either singly or in combination, are capable of compelling the conclusion that the jury must have entertained a reasonable doubt as to the veracity of the evidence given by either LW or MW in respect of any one or more counts on the indictment. It may be accepted that, by reason of those matters, the jury might have entertained a reasonable doubt - as indeed they evidently did in respect of at least two of the counts on the indictment. However, for the reasons I have given, the failure of the jury to be satisfied beyond reasonable doubt that the appellant was guilty of those counts, or of the count the subject of the acquittal directed by the trial judge, does not sustain the conclusion that it was not open to the jury to be satisfied of the guilt of the appellant on the other counts.
Put another way, the impact of the various matters to which attention has been drawn in support of this ground upon the veracity of the evidence given by the complainants was essentially a matter to be determined by the jury, utilising the advantage which it had when compared to this court in analysing and assessing the evidence given at trial. It cannot be concluded that the forensic effect of those matters, either singly or in combination, was such as to compel the existence of a reasonable doubt as to the veracity of the evidence given by either complainant. As it remained open to the jury to accept that evidence, it cannot be said that the jury's verdicts of guilty were unreasonable, or that the convictions entered as a consequence of those verdicts are unsafe or unsatisfactory. Accordingly, this aspect of the appeal against conviction must also be dismissed.
Appeal against conviction - summary
For the reasons I have given, each aspect of the appeal against conviction should be dismissed. Having regard to the relative lack of substance in each ground, leave to appeal against conviction should be refused, and the appeal dismissed.
The appeal against sentence
Following his conviction, the appellant was sentenced to the following terms of imprisonment:
count 1 - 2 years;
count 2 - 3 years;
count 5 - 4 years;
count 6 - 5 years;
count 7 - 4 years;
count 9 - 2 years;
count 10 - 6 years;
count 11 - 4 years;
count 13 - 6 years; and
count 14 - 2 years.
The sentences on counts 1, 5 and 13 were ordered to be served cumulatively upon each other, and the other sentences were ordered to be served concurrently, giving rise to a total effective sentence of 12 years imprisonment. An order was made rendering the appellant eligible for parole.
The observations of the sentencing judge
The sentencing judge commenced his observations with the findings of fact which he made for the purposes of sentence. As those findings generally correspond to the summary of the offences which I have already provided, it is only necessary to refer to those portions of the findings of fact which are relevant to the appeal.
Those portions are, in respect of count 10:[35]
[MW] … woke up on her feet after she'd been pulled from her bed.
[35] ts 573.
In the portion of his observations relating to MW's failure to complain of the appellant's conduct, the judge observed:[36]
She was afraid of upsetting her mother. She had also by this time seen what had happened when her older sister had tried to expose you on an occasion when [LW] had actually caught you in [MW's] room in the process of sexually abusing her.
[36] ts 575.
The judge identified the following aggravating factors:
•both complainants were especially young;
•the appellant's breach of trust was particularly serious;
•there was a degree of depravity surrounding the offending against both of the children;
•from the judge's observation of the complainants while giving their evidence, it was obvious that they carried with them the psychological scars left by the appellant's offending behaviour;
•it was also clear from the victim impact statements provided by each complainant that both have suffered long-term emotional harm, which is the regular consequence of offending behaviour of the kind committed by the appellant; and
•each complainant continued to suffer because of the appellant's offending behaviour, and the lives of both had been diminished because of what the appellant did.
The judge also summarised the appellant's personal circumstances. He observed that the appellant was aged between 24 and 31 when the offending occurred, and was 43 at the time of sentence. The appellant met the mother of the complainants when he was 21 and she was 25. The appellant had no record of relevant offending.
In this context, the judge made the following observations, which are the subject of the ground of appeal against sentence:[37]
Given your continued denial of offending, I had misgivings, I have to say, about ordering any reports because I was concerned that they would be a waste of public money. That has turned out to be the case here.
All that can be said with certainty is that you continue to deny any offending and to accuse your daughters, your stepdaughters of falsely accusing you and for what it's worth, like the jury I found their evidence to be extremely compelling.
The only explanation for this offending that arises from the reports is really the obvious one. You chose to use your stepchildren as sexual objects because you could. It's also difficult to make any reasoned prediction about your risk of reoffending from what appears in the reports.
[37] ts 576 - 577.
The judge identified a mitigating factor, in the form of the appellant's prior good record, and his history of work and his support of his family. The judge noted that although the appellant was 24 years old when the offending began, and might have been entitled to mitigation because of his relative youth, because the offending behaviour continued for many years, there was no mitigation to be gained from the appellant's age.
In the context of mitigating factors, the judge made another observation which is the subject of the ground of appeal:[38]
In this case it is very easy to conclude that there's no remorse or contrition available as mitigating factor while as a matter of common sense a plea of not guilty makes the existence of remorse unlikely. Here the manner of the conduct of the trial on your behalf on your instructions as was plain puts it beyond doubt that you are entirely without conscience with respect to this offending.
The victim's [sic] humiliation was effectively made complete by the manner in which they were cross-examined at trial. You're not to be penalised for your pleas of not guilty but no factor of mitigation is available as might otherwise have been the case.
[38] ts 577.
The judge concluded his observations with the following remarks:[39]
Repeated abuse over an extended period is an indicator of the extent to which an offender is a risk to the community. It's aggravating if the offender was in a position of trust in the sense that he has authority power or influence over the victim.
You were plainly in such a position not merely because these children were technically de [facto] children but because you had stepped into the position of their father and exercised authority over them; not merely for their care but also substantially for their discipline.
Quite apart from that issue of trust physical force was also used to overcome resistance and both children suffered at least minor injuries by your offending. Offences involving the sexual abuse of children are very serious and the dominant sentencing considerations are personal and general deterrence and the protection of children.
Mitigating factors are given less weight. This was very serious sexual offending carried out over a period of about seven years with two different victims. The indecent dealing offences rank among some of the more serious that I have seen that [fall] short of actually [being] acts of sexual penetration.
Your offending has done very substantial harm to both victims. It is objectively very serious offending. …
[39] ts 577 - 578.
The ground of appeal
The appellant appeals against the sentence imposed on the following ground:
1.The learned sentencing judge erred in the application of the totality principle, which resulted in a total sentence of 12 years imprisonment, which is manifestly excessive.
Particulars
1.1Having regard to sentences imposed in similar cases, the learned sentencing judge did not give any sufficient consideration to;
1.1.1the background of the appellant including his work and family history;
1.1.2the fact that the appellant had no relevant previous convictions;
1.1.3the fact that the complainants suffered no serious injury to health;
1.1.4the contents of the pre-sentence, psychological and psychiatric reports;
1.1.5other sentences imposed in cases of a similar nature to this case.
1.2The learned sentencing judge sentenced the appellant having regard to 2 findings of fact in his sentencing remarks that were not supported by the evidence.
1.3The learned sentencing judge sentenced the appellant having regard to his determination in his sentencing remarks as to the appellant's defence case that were not supported by the evidence.
The alleged express errors
It will be noticed that although the ground of appeal is expressed as a single ground, it contains a number of quite different components. In particular, the matters asserted in pars 1.2 and 1.3 are allegations of express error made by the judge at the time of passing sentence, whereas the allegation made in par 1.1 is an allegation of error to be implied from the sentences imposed, having regard to the particular matters identified in the ground.
It is convenient to deal first with the allegations of express error, commencing firstly with the allegations of error in relation to the facts constituting the offences, and then the allegations of error with respect to the defence case.
It is asserted that the judge erred in fact by finding, in respect of count 10, that MW was 'pulled from her bed' when there was no evidence to that effect. MW's evidence was that she woke on her feet.[40] MW gave no evidence as to how she came to be in that position.[41] She was about seven years old when the incident allegedly occurred. Her evidence was to the effect that when she awoke, she was standing up and the appellant's penis was in her face.
[40] ts 211; 241 - 242.
[41] Which is not surprising, given her evidence that she was asleep.
There was no evidence that MW was a sleepwalker, or that she was sleepwalking on this occasion. In the absence of any evidence to the contrary, and given the circumstances in which MW found herself when she awoke, it is entirely reasonable to infer that she was taken from her bed by the appellant while she was asleep, and placed in a standing position in order that the appellant might penetrate her mouth with his penis. The judge was entitled to draw that inference.
But in any event, there is no suggestion, nor can it be inferred that the manner in which MW was removed from her bed (or indeed the question of whether she was in fact removed from her bed) was material to the sentence imposed by the judge with respect to either count 10, or the total effective sentence, especially given that the sentence imposed in respect of count 10 was one of the sentences ordered to be served concurrently.
For these reasons there is no substance in this aspect of the appeal against sentence.
The other error of fact asserted in support of the appeal against sentence concerns the finding made by the judge to the effect that LW had caught the appellant in MW's room in the process of sexually abusing her. On behalf of the appellant it is noted, correctly, that this allegation was not the subject of any charge. However, the assertion made on behalf of the appellant to the effect that there was no evidence of this is incorrect.
During her evidence in chief, LW said that on one occasion she was lying in bed and heard noises coming from MW's room. She described the noises as '[l]ike a bit of a groaning and moaning kind of noise'.[42] LW went to her door and looked into MW's room. The door of MW's room was less than a metre from the door to her room. She saw the appellant standing at the foot of MW's bed. MW's nightie had been pulled up to around her belly-button, the blankets were off to the side of her bed and MW had no underwear on. The appellant was holding MW's knickers in his left hand. He turned around and saw LW, who noticed that the appellant's fly and the button of his blue jeans were undone. She could see his underwear below his pants. LW ran to her mother's room and woke her up and told her what she had seen, which precipitated an argument between her mother and the appellant.
[42] ts 126.
LW reiterated this evidence in the course of her cross‑examination, and rejected the proposition that she was lying about it.[43]
[43] ts 189 - 190.
MW gave similar evidence. Her evidence in chief was to the effect that when she awoke one night, she saw the appellant come into her room from her sister's room. She closed her eyes and pretended to be asleep and the appellant proceeded to take her underwear off. Then LW came running out of her bedroom, down the hallway towards their mother's room, yelling and running.[44] According to MW, her mother asked the appellant why he was doing up his fly and he responded, 'I was in the toilet'.[45] MW reiterated this evidence in cross‑examination.[46]
[44] ts 221.
[45] ts 221.
[46] ts 257.
It was open to the judge to accept that this evidence established beyond reasonable doubt that the appellant had entered MW's room, lifted up her nightie and removed her underwear at a time when the top button and fly of his trousers were undone. From those findings of primary fact, it was clearly open to the judge to infer, beyond reasonable doubt, that the appellant had embarked upon the sexual abuse of MW, but was interrupted before he could put his purpose into effect by LW's actions.
It follows that the finding made by the judge was open on the evidence, and this aspect of the appeal against sentence must be rejected. In any event, given that the conduct of the appellant the subject of this finding was not the subject of any count on the indictment, there is nothing to suggest that the finding of the judge in this respect had any impact upon either the sentence imposed on any count, or the total effective sentence. To the contrary, the finding was made by the judge in the context of an evaluation of the competing submissions of the parties with respect to the delay in either complainant pursuing a complaint against the appellant. The point being made by the judge in this portion of his observations is that each complainant would have been aware that there was an occasion upon which LW complained to their mother about the appellant's conduct towards MW, but no action was taken. It follows that even if an error of fact in this respect had been established, it would not have been an error which had any material impact upon the sentences imposed.
Turning now to the errors said to have been committed by the judge with respect to other matters, the first of such matters concerns the judge's observations with respect to the lack of utility in ordering psychological and psychiatric reports. On behalf of the appellant it is asserted that, given the appellant's lack of prior sexual offending against children, it was necessary to ascertain whether there were psychological or psychiatric factors which might explain his behaviour and provide guidance with respect to future risk.
That proposition may be accepted, but it is not inconsistent with the observations made by the judge. Those observations related to his misgivings with respect to the ordering of such reports - misgivings which were confirmed when the reports were provided and failed to provide any psychological or psychiatric explanation for the appellant's offending behaviour, or any reliable assessment of the risk of the appellant reoffending. Given the content of the reports, that observation was clearly open to the judge. In any event, it could not be inferred that the observation with respect to the lack of utility of the psychological and psychiatric reports had any bearing upon the sentences imposed, given that it is not submitted on behalf of the appellant that those reports shed any light upon the reasons for his offending behaviour or the risk of him reoffending.
Next, objection is taken to the observations made by the judge with respect to the appellant's lack of remorse or contrition. On behalf of the appellant it is asserted that no issues were raised with counsel during the trial with respect to the manner in which the complainants were cross‑examined, and the complainants did not themselves say that they were 'humiliated' while giving their testimony. However, the judge did raise a concern with respect to repetitive questioning with counsel for the appellant, and was, of course, able to observe the effect of cross‑examination upon the complainants. In those circumstances it was open to the judge to make the observations which he made.
In any event, the judge did not suggest that the manner in which the defence was conducted on behalf of the appellant was an aggravating factor which justified the imposition of increased penalties upon the appellant. Rather, the judge observed that in the circumstances, no mitigation was available to the appellant as a result of remorse or contrition. Having regard to the appellant's continuing denial of his guilt, and his continuing assertion that each complainant was lying with respect to the offences, that finding was clearly open. It follows that this aspect of the appeal against sentence must also be rejected.
Summary in relation to express errors
None of the alleged express errors has been established. Nor has it been established that any of the matters said to constitute error had any material impact upon the sentences imposed. This aspect of the appeal against sentence is entirely lacking in substance.
The alleged implied error
A description of the argument advanced in support of this aspect of the appeal against sentence as sparse is something of an understatement. The only reference to this aspect of the appeal in the written submissions is the following sentence:
Having regard to the facts and circumstances in other cases such as VIM, Williams and MAS, the sentence imposed on the appellant here is towards the upper end of the scale.
No oral submissions were proffered in support of the appeal against sentence - rather, counsel for the appellant was content to rely upon the written submissions filed.
The three cases to which reference is made in the brief written submission, viewed in the context of the many decisions in this court reviewing sentences imposed in cases similar to this case, provide scant support for the proposition which they are said to sustain. VIM[47] was decided in 2005. In a number of decisions of this court since then it has been observed that sentences have 'firmed up' in more recent times. Further, VIM was a decision in which this court re-sentenced the offender to a term of 10 years imprisonment following a successful appeal by the State, at a time when the common law constraints upon State appeals against sentence applied to the re-sentencing exercise. For these reasons it is of little assistance in relation to the present case.
[47] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
Williams[48] is a case involving such different factual circumstances as to be of no relevant assistance to the present case. That case involved the use of a shard of glass to inflict violence, and threats of violence, to facilitate the sexual penetration, without consent, of an adult woman who was very intoxicated.
[48] Williams v The State of Western Australia [2015] WASCA 110.
MAS[49] is relevant to the assessment of the sentences imposed in this case, but is only one of many comparable cases. It will be considered below, in the context of various other cases comparable to this.
[49] MAS v The State of Western Australia [2012] WASCA 36.
A more fundamental problem with the brief proposition advanced in support of this aspect of the appeal against sentence is that, even if accepted, it does not constitute error of a kind which would justify appellate intervention. It is trite to observe that an appeal against sentence alleging implied error in the form of manifest excess in the sentence or sentences imposed in effect contends that the sentence or sentences imposed in and of themselves reveal error in the sentencing process, because, having regard to all relevant facts and circumstances, they could not have been imposed in the sound exercise of the discretion conferred upon the sentencing judge. It is not uncommon for courts to refer to a 'range' or 'scale' of sentences which indicate the ambit for the sound exercise of discretion in such a context, although such terminology can be apt to mislead - especially in circumstances such as the present where it has been said many times that there is no 'tariff' or 'range' for sex offences generally because of the great variation that is possible in the circumstances of the offending and in the offenders.[50]
[50] See, for example, Williams v The State of Western Australia [2015] WASCA 110 [51].
Nevertheless, when terminology of that kind is engaged, error justifying appellate intervention will only be established if the sentence imposed is outside the relevant 'range' or 'scale', so as to indicate that the sentencing discretion has miscarried. In this case, the assertion in support of the appeal to the effect that the total effective sentence imposed was 'towards the upper end of the scale', if accepted, is not indicative of error unless it were also asserted that the circumstances of the offences and of the offender were such that the case could not be placed 'towards the upper end of the scale' in the sound exercise of the discretion conferred upon the sentencing judge. No assertion of the latter kind has been made, nor could it be sustained, having regard to the sustained course of sexual exploitation of young and vulnerable children who were entitled to look to the appellant for their care and protection.
The particulars
Before reviewing some of the comparable cases for the purpose of ascertaining whether error of the kind I have described is evident in the total effective sentence imposed, it is necessary to first deal with the particulars specified in support of this ground.
The first two particulars given - the appellant's background including his work and family history, and his lack of any relevant previous convictions - may be conveniently considered together. As I observed in MAS:[51]
Lack of prior conviction and previous good character is a not infrequent characteristic of cases of this kind. However, because of the serious abuse of trust inherent in cases in this category, and the abhorrence with which the community rightly regards cases of this kind, reflected by the maximum penalties imposed by the legislature, the dominant sentencing considerations in cases of this kind are personal and general deterrence, and the need to robustly denounce offending conduct of this kind and to provide support for prospective and past victims of serious abuses of trust. As a consequence, mitigatory personal circumstances and previous good character are of reduced relevance.
[51] MAS v The State of Western Australia [2012] WASCA 36 [86] (Pullin & Mazza JJA agreeing).
It is next asserted on behalf of the appellant that 'the complainants suffered no serious injury to health'. If this assertion is construed as applying to only physical health, it may be broadly accepted, although I have referred to LW's evidence to the effect that she received a cut to her vagina of between 5 and 10 mm in length, which resulted in bleeding. But in any event, the obvious answer to this assertion is that the laws prohibiting sexual activity with children protect a much broader range of interests than physical health. In cases of this kind it is very common for complainants to suffer psychological and emotional trauma which can result in debilitating mental and behavioural conditions of indefinite or life-long duration. This is such a case. The victim impact statements tendered on behalf of each complainant, which were not challenged and which were accepted by the judge as accurate, establish that the appellant's behaviour has had a profound effect upon the emotional wellbeing of each complainant. Each states that their impaired relationships with men, lack of self-confidence, levels of anxiety, compromised interpersonal relationships and, in one case, excessive use of alcohol can be attributed to the appellant's offending conduct. Accordingly, the effect of the appellant's behaviour upon the complainants is a factor which tends to support the regularity of the total effective sentence imposed, rather than detract from it.
The next matter identified in the particulars in support of this ground is described as 'the contents of the pre-sentence, psychological and psychiatric reports'. In the absence of any argument in support of this reference, it is difficult to ascertain what is meant by it. That is because, as the judge noted, there is nothing in the pre‑sentence, psychological or psychiatric reports which would suggest that the appellant's offending behaviour can be explained by a pre-existing psychological or mental condition. Nor is there anything in those reports which would support a finding of fact to the effect that the appellant was at low risk of reoffending, and no proposition to that effect has been advanced in support of this appeal.
The final particular advanced in support of this aspect of the appeal against sentence refers to 'other sentences imposed in cases of a similar nature to this case'. That is the topic to which I will now turn, by reference to the one comparable case identified on behalf of the appellant, viewed in the context of other relatively recent comparable cases.
MAS
In MAS, a total effective sentence of 12 years imprisonment imposed following conviction after trial was upheld by this court. Although the offending behaviour involved only one complainant who was older than the complainants in this case at the time the offending behaviour commenced, the extent and depravity of the offending conduct was more pronounced than in the present case.
In MAS, the complainant was the daughter of the offender's de facto wife. The offending conduct occurred when she was 11 or 12 years old, and continued until she was 18. The complainant had a mild physical disorder and was bullied at school and, as an only child, had limited access to other people outside school hours.
The offender commenced his offending conduct by digitally penetrating the complainant's vagina and threatening to kill her if she told anybody what he had done. On occasions he used physical force to overwhelm the complainant's efforts to repel him. During the seven years of offending behaviour, the complainant was subjected to various forms of sexual abuse including vaginal and anal penetration, cunnilingus and fellatio. She was forced to perform sexual acts for the sole gratification of the offender and was often humiliated and mistreated during certain of those acts. The instances of anal penetration left her bleeding and in pain. When the complainant was 16 years old, she fell pregnant to the offender and was obliged by the offender to have an abortion.
Although it is invidious to endeavour to place cases of child sex abuse at particular points within a scale of relative depravity, on any view, the offending conduct in MAS was more serious than the offending conduct in this case, notwithstanding that, in this case, two complainants were involved, and they were younger and more vulnerable when the conduct occurred. MAS suggests that the sentence imposed in this case was severe, although, of course, a comparison with one case cannot ordinarily, of itself, establish implied error. Rather, it would usually be appropriate to consider a number of cases decided at appellate level in order to ascertain whether error is manifest in the sentence imposed.
GHS[52]
[52] GHS v The State of Western Australia [2006] WASCA 42.
In GHS, the offender was convicted, after separate trials, of multiple sex offences against two of his stepdaughters. In the first trial, he was convicted of one count of rape, two counts of aggravated sexual penetration, three counts of indecent dealing and one count of inciting a child to indecently deal with him, in respect of a child who was about 12 at the time of the offences. Five of the offences were committed on the same occasion. However, the offences were representative of a course of continuing conduct, the specific incidents of which the complainant could not recall with precision. The offender was sentenced to a total effective sentence of 8 years imprisonment.
In the second trial the offender was convicted of a further seven counts, including two counts of sexual penetration without consent, committed against his other stepdaughter on five separate occasions when she was between the ages of 13 and 21. Again, the offences were treated as representative of a continuing course of conduct. A further total effective sentence of 8 years imprisonment was imposed following the second trial, to be served cumulatively upon the sentence imposed in the first trial.
This court held that the aggregate term of 16 years imprisonment was too severe, and resentenced the offender to a total effective sentence of 14 years imprisonment.
In GHS, the physical interference with the complainants by the offender was greater than in the present case, although the complainants in the present case were younger at the time of the offences than in GHS. Viewed in the broad, and taking into account the differences in the conduct in the two cases, the total effective sentence imposed after appeal in GHS appears generally consistent with the total effective sentence imposed in this case.
GMS[53]
[53] GMS v The State of Western Australia [2009] WASCA 107.
In GMS, the offender was convicted after pleading guilty to 13 counts of sexual offences committed against his two daughters. One of the complainants was aged between 9 and 17 years at the time of the offending, and the other between 5 and 11 years. The offences included indecent dealing and penile penetration of the vagina. The charges were representative of a continuing course of conduct. The offender had sexual intercourse with one of the complainants on an almost daily basis. One of the complainants became pregnant to the offender, who arranged for her to have an abortion. The offender purported to justify his conduct on the basis that he had been on drugs or intoxicated when the offences were committed. The offender had a prior conviction for a sexual offence against a child.
The offender was given sentences which resulted in a total effective sentence of 12 years and 6 months imprisonment. His appeal against that sentence was dismissed. The offending conduct in GMS was significantly more serious than in the present case, involving repeated and sustained acts of complete penetration which resulted in pregnancy. Although allowance must be made for the offender's plea in GMS, the plea was entered the day before trial and was not accompanied by remorse. Taking into account the seriousness of the offending conduct in GMS, even after allowing for the mitigating effect of the offender's guilty pleas, the total effective sentence imposed in this case appears somewhat more severe than that imposed in GMS.
KMB[54]
[54] KMB v The State of Western Australia [2010] WASCA 212.
In KMB, the offender was convicted after trial of seven sexual offences committed against his stepdaughter who was aged between 8 and 18 at the time the offences were committed. The offences included penile-vaginal penetration (including ejaculation) and digital penetration. The complainant became pregnant at the age of 12 and the offender arranged for her to have an abortion.
Sentences giving rise to a total effective sentence of 14 years and 6 months imprisonment were imposed. An appeal to this court against that sentence was dismissed.
In KMB, the offending conduct was more serious than the offending conduct in this case. However, the total effective sentence imposed was 2 years and 6 months longer than the corresponding sentence in this case. While it could perhaps be argued that one might have expected to see a greater difference between the two sentences, considering the more serious nature of the offending conduct in KMB, given the broad view which must be taken when assessing the differential exercise of discretion, the sentences imposed in the two cases appear generally consistent, in that broader sense.
SWD[55]
[55] SWD v The State of Western Australia [2012] WASCA 76.
In SWD, the offender was convicted after trial of six counts of sexual penetration involving his son, who was aged 10, and his daughter, who was aged 7-8 at the time of the offending conduct. The offences involved forceful digital and penile penetration of his son's anus, inflicting severe pain, followed by a threat that the offender would kill the son's mother if he told her what had happened. There were other uncharged instances of sexual conduct towards the son by the offender. The offences against the offender's daughter involved forceful penile penetration of her vagina, often accompanied by the placement of a pillow over her head. Although the son did not provide a victim impact statement, the judge found that he felt deep shame, embarrassment, hurt and disgust about the offending conduct. A victim impact statement filed by the daughter established that the offending conduct had affected her adversely and profoundly, in an enduring way.
Sentences were imposed which gave rise to a total effective sentence of 14 years imprisonment. An appeal to this court against that sentence was dismissed.
As with GHS and KMB, the offending conduct in SWD was more serious than the offending conduct in this case, as it involved forceful and complete penetration of the son's anus and the daughter's vagina. However, the total effective sentence imposed in that case was two years longer than the corresponding sentence in the present case, reflecting the differences in the severity of the offending conduct. Again, viewed in the broad, the sentence imposed in SWD appears generally consistent with the sentence imposed in the present case, although the case does suggest that the total effective sentence imposed in this case was severe.
CJF[56]
[56] CJF v The State of Western Australia [2012] WASCA 69.
In CJF, the appellant was convicted after trial on two counts of indecently dealing with, and four counts of sexually penetrating, his de facto child, who was between 12 and 13 years of age at the time the offences were committed. The indecent dealing offences involved the touching of the complainant's breasts and vagina. The offences of sexual penetration involved penetration of the complainant's vagina with the offender's penis and with his finger. The trial judge found that the counts on which the appellant was convicted were representative of a continuing course of sexual abuse which commenced when the complainant was 9 years of age. The offender was repeatedly violent towards the complainant, and threatened to harm the complainant's mother and brother if she disclosed what was occurring.
Sentences were imposed which resulted in a total effective sentence of 14 years imprisonment. Following a successful appeal against sentence, the offender was resentenced to terms which gave rise to a total effective sentence of 12 years imprisonment.
Although the offending behaviour perpetrated by CJF was somewhat more serious than the offending behaviour perpetrated by the appellant in this case, when account is taken of the fact that it was directed towards only one complainant, the total effective sentence imposed in CJF appears consistent with the total effective sentence imposed in this case.
ERA[57]
[57] ERA v The State of Western Australia [2013] WASCA 163.
In ERA, the offender was convicted after trial on 21 counts of sexual offences against four complainants - two being his nieces and two being his granddaughters. The offending conduct relating to one niece involved rubbing her vagina with his hand and on another occasion rubbing his penis against her vagina. The offences against the other niece involved rubbing her vagina with his hand, using her hand to masturbate his penis, rubbing his penis against her vagina until ejaculation, and penetrating her vagina with his penis. The offences committed against one granddaughter involved penile penetration of her vagina. The offences committed against the other granddaughter involved digital penetration of the vagina, penile penetration of the vagina and the insertion of a vibrating sex toy into the girl's vagina.
Sentences were imposed giving rise to a total effective sentence of 16 years imprisonment. An application for leave to appeal against that sentence was dismissed.
As with the other cases I have reviewed, the offending conduct in ERA was more serious than the offending conduct in this case, as four complainants were involved and the degree of physical interference with the complainants was greater than in the present case. However, a total effective sentence was imposed which is four years longer than the sentence imposed in the present case. Viewed in the broad, that difference reflects the differences in the nature of the offending conduct, such that the total effective sentence imposed in that case can be said to be generally consistent with the total effective sentence imposed in this case.
SG[58]
[58] SG v The State of Western Australia [2013] WASCA 236.
In SG, the offender was convicted of various counts of indecent dealing with, sexual penetration of, and aggravated sexual penetration of his de facto daughter, who was aged between 11 and 16 years when the offences were committed. On one occasion the offender grabbed the complainant's hair and forced her to perform fellatio until he ejaculated into her mouth. On various occasions, the offender ejaculated into the vagina of the complainant, which eventually resulted in her falling pregnant at the age of 15. The offender used bribery, promises, intimidation and physical coercion to fulfil his sexual desires in relation to the complainant. The offender had a lengthy prior criminal record, but no prior conviction involving sexual offences. An appeal against the total effective sentence of 12 years imprisonment imposed upon the offender was dismissed.
The offending conduct in SG was more serious than the offending conduct in the present case, as it involved forceful and complete penetration resulting in pregnancy, accompanied by coercive behaviour. Even after allowance is made for the fact that the offences in SG were committed against a single complainant (who was somewhat older than the complainants in the present case), a comparison of the two cases suggests that the sentence imposed in the present case was somewhat more severe than that imposed in SG.
GHK[59]
[59] GHK v The State of Western Australia [2014] WASCA 19.
In GHK, the appellant was convicted after pleading guilty to 24 counts of sexual offending committed against six complainants - four being his own biological children, one being a girl who was a ward of the State and another being a girl who was a friend of one of his daughters. The offences ranged from indecent dealing to multiple offences of sexual penetration, including digital-vaginal penetration, cunnilingus, fellatio, penile-vaginal penetration, masturbation in the presence of the complainants, and attempted penile-anal penetration of one of the male complainants. The complainants ranged in age between 4 and 13 years when the offences were committed.
Sentences giving rise to a total effective sentence of 16 years imprisonment were imposed. Taking into account the offender's plea of guilty, an appeal to this court was upheld, and a total effective sentence of 14 years imprisonment was imposed.
Again, the offending conduct in GHK was undoubtedly more serious than the offending conduct in the present case. However, when account is taken of the plea of guilty in that case, the imposition of a total effective sentence two years longer than in the present case, viewed in the broad, reflects the differences in the offending conduct in the two cases, so that the sentences imposed in those cases can be said to be generally consistent, although it can also be said that, by comparison, the total effective sentence imposed in this case was severe.
ARK[60]
[60] ARK v The State of Western Australia [2014] WASCA 45.
In ARK, the offender was convicted of eight counts of aggravated sexual penetration, and one count of attempted aggravated penetration, of his de facto daughter. The complainant was between 11 and 15 years of age at the time of the offences, which involved digital and penile penetration of the complainant's vagina, and attempted fellatio. The offences were found to be representative of an ongoing course of conduct. The offences were aggravated by physical aggression directed at the complainant when she resisted the offender's advances, and the use of manipulation and intimidation to secure compliance by the complainant.
The offender's appeal against sentences which resulted in a total effective term of imprisonment of 12 years was dismissed.
Although the offending conduct in ARK involved circumstances of aggravation not present in this case, the offences in this case were committed in respect of two complainants as compared to the single complainant in ARK. When account is taken of those differences, the total effective sentence imposed in the present case appears consistent with the total effective sentence imposed in ARK.
LJH[61]
[61] LJH v The State of Western Australia [2016] WASCA 155.
In LJH, the offender was convicted following his plea of guilty to 26 counts of sexual penetration of a de facto child under the age of 16, two counts of procuring a de facto child under the age of 16 to engage in sexual behaviour, 13 counts of indecently recording a de facto child under the age of 16 and two counts of possession of child exploitation material. The complainant, the offender's stepdaughter, was between 14 and 15 years old when the offences were committed. The offences included penile-vaginal penetration, digital penetration, fellatio, cunnilingus, ejaculation onto the complainant's chest, penetration of the complainant's vagina with a dildo, and anal penetration of the complainant with a sexual device. Many of the offences were video recorded by the offender.
Sentences were imposed giving rise to a total effective sentence of 13 years imprisonment. Taking into account the offender's plea of guilty, an appeal to this court was allowed and the offender was resentenced in a way which gave rise to a total effective sentence of 10 years imprisonment.
Once again, the offending conduct in LJH was significantly more serious than the offending conduct in the present case, although it must be borne in mind that the present case involved two complainants who were younger at the time of the offending behaviour than the complainant in LJH, both of whom have been profoundly affected by the offender's conduct. Notwithstanding that fact, and the plea of guilty in LJH, comparison of the two cases suggests that the sentence imposed upon the offender by this court in LJH was more lenient than the sentence imposed in the present case.
JAW[62]
[62] JAW v The State of Western Australia [2016] WASCA 40.
In JAW, the offender was found guilty after trial of eight offences of indecently dealing with a child under 13, five offences of sexually penetrating a child under 13, and one count of possession of child pornography. The complainants were a girl and one of her brothers. Their mother and the offender were neighbours during the period of the offending and for much of that time were in a relationship. The offences against the girl commenced when she was about 8 or 9 and included digital penetration, using the girl's hand to masturbate the offender's penis, cunnilingus and fellatio. There was no penile‑vaginal penetration. The offence against the boy involved displaying pornographic videos to him on one occasion.
Sentences were imposed which gave rise to a total effective sentence of 7 years imprisonment. In dismissing an application for leave to appeal against that sentence, Mazza JA[63] expressed the view that the total effective sentence imposed bore a proper relationship to the overall criminality involved in the offending, having regard to all relevant circumstances.
[63] Buss JA & Hall J agreeing.
The offending conduct in JAW was, if anything, somewhat less serious than the offending conduct in this case. Although there were two complainants in each case, in JAW the offence committed against the boy was not particularly serious. On the other hand, the offences committed against the girl were prolific, although no penile-vaginal penetration was involved, unlike in the present case. Nevertheless, the sentence imposed in JAW was undoubtedly more lenient than the sentence imposed in this case.
NHT[64]
[64] NHT v The State of Western Australia [2016] WASCA 167.
In NHT, the offender was convicted after trial of seven sexual offences relating to his adopted daughter, committed when she was between 8 and 12 years of age, and one offence of indecent dealing relating to his niece, committed when she was 15 years of age. The offences committed by the offender relating to his adopted daughter occurred on seven occasions over a period of around five years. Unlike the present case, they were not found to be representative of a continuing course of conduct. Those offences consisted of touching the complainant's clitoral area, making her masturbate the offender's penis, requiring the complainant to perform fellatio on the offender, touching the offender's penis against the exterior of the complainant's vagina, and briefly penetrating the complainant's vagina with the offender's penis. On two occasions, the offender unsuccessfully attempted to penetrate the complainant's vagina with his penis. The offence of indecent dealing committed in relation to the offender's niece involved relatively minor conduct, when compared to the offences committed against his adopted daughter.
The offender's appeal against sentences which resulted in a total effective term of imprisonment of 8 years and 9 months was dismissed.
The offending conduct in NHT was comparable to the offending conduct in the present case. However, although there were two complainants in NHT, the offence committed against one complainant was relatively minor, as compared to the present case, where the offences committed against both complainants were serious. Nevertheless, a comparison of the total effective sentence imposed in NHT with the total effective imposed in this case suggests that the sentence imposed in this case was severe.
AJ[65]
[65] AJ v The State of Western Australia [2016] WASCA 13.
In AJ, the offender was convicted after pleading guilty to two counts of persistently engaging in sexual conduct with his two daughters. One complainant was aged between 9 and 15 at the time of the offending conduct, and the other was aged between 7 and 11 years. The offences occurred on numerous occasions over the course of approximately seven and a half years. The offences relating to one complainant involved many occasions of the offender placing his hands down the front of her pants and rubbing her vagina, accompanied by threats that the complainant would be in trouble if she did not comply. The offender regularly touched this complainant's breasts and vagina, and on one occasion touched her all over her naked body, kissing her on the chest and genitals while rubbing her vagina. The offending conduct in relation to the other complainant involved regularly touching of her buttocks, breast and vagina. On one occasion, the offender undressed and lay on top of this complainant, who was naked, moving up and down so that his genitals made contact with her vagina. There were other occasions when the offender kissed or stimulated this complainant's vagina while they were naked, and at least one occasion upon which this complainant touched the offender's penis.
The offender was sentenced to a term of 5 years imprisonment in respect of the offence involving one complainant, and 4 years imprisonment in respect of the offence involving the other complainant. The sentences were cumulative, and resulted in a total effective sentence of 9 years imprisonment. The sentencing judge stated at the time of sentence that he had allowed a discount of 25% for the offender's guilty plea, and a further discount for the offender's cooperation with police.
The offending conduct in AJ is comparable to the offending conduct in the present case. After taking into account the reduction made for the plea of guilty in AJ, the total effective sentence imposed in that case appears consistent with the total effective sentence imposed in the present case.
KSN[66]
[66] KSN v The State of Western Australia [2017] WASCA 156.
In KSN, after trial by jury, the offender was convicted of six offences of sexual penetration of a de facto child under the age of 16, eight counts of sexual penetration of a de facto child, and one count of indecently dealing with a de facto child. All offences were committed against a single complainant - the offender's de facto stepdaughter - and commenced when she was about 12, continuing until she was about 16. The offences involved four occasions of digital penetration, three occasions of fellatio, five occasions of penile-vaginal penetration, one occasion of cunnilingus and one occasion involving penile penetration of the complainant's anus.
Sentences were imposed giving rise to a total effective sentence of 12 years imprisonment. The offender groomed the complainant and threatened to harm her sibling and her father. The offending conduct involved the use of threats and force. An application to this court for leave to appeal against that sentence was dismissed.
Although there was only one complainant in KSN, and she was older when the offending conduct commenced than the complainants in the present case, the offending conduct in that case was more serious than in the present, given the degree of physical penetration involved, and the use of threats and force. The sentence imposed in the present case was undoubtedly more severe than the sentence imposed in KSN.
LWD[67]
[67] LWD v The State of Western Australia [2017] WASCA 174.
In LWD, the offender was convicted after trial of eight sexual offences committed against his stepdaughters. Seven of the offences were committed against one stepdaughter between the time she was approximately 5 and 14 or 15 years of age. One offence was committed against another stepdaughter, who was less than 10 years old at the time. The offending conduct involved fellatio, digital penetration, cunnilingus, penile-vaginal penetration, and penile-anal penetration.
Sentences were imposed which gave rise to a total effective sentence of 13 years imprisonment. An appeal against that sentence was dismissed by this court, although the only ground upon which the appeal was brought involved an issue with respect to the offender's mental condition.
The offending conduct in LWD was more serious than the offending conduct in the present case. In both cases, two complainants were involved, and the ages at which the offending conduct took place is comparable. However, in LWD, there was a greater degree of physical penetration involved in a number of the offences. Having regard to the differences in the conduct involved, notwithstanding that the total effective sentence in LWD was one year longer than the corresponding sentence in the present case, a comparison of the two cases suggests that the sentence imposed in the present case was somewhat more severe than the sentence imposed in LWD.
Summary
It will be apparent from this review of the cases that there have been a number of cases considered by this court in which the sentences imposed were, broadly speaking, generally consistent with the total effective sentence imposed in this case. However, comparison with a number of other cases considered by this court shows that the total effective sentence imposed in this case was more severe than the sentences imposed in those cases. The critical question is whether comparison with those cases shows that the sentence imposed in this case manifests error, in the sense that it was not open to the sentencing judge to impose a sentence of that magnitude in the proper exercise of the discretion conferred upon him.
In addressing that question, it must be borne in mind that:
•the discretionary nature of the sentencing process makes it inevitable that there will be variations in the outcome of that process as between any set of comparable cases;
•the task of an appellate court reviewing a sentence for manifest error is not to search for mathematical equivalence - rather the task is to assess whether, taking into account standards of sentencing customarily observed in comparable cases, the sentence imposed is so inconsistent with those standards as to manifest error;
•an appellate court cannot interfere merely because it would have imposed a different sentence upon the offender; and
•the sentencing discretion is conferred upon the judge at first instance and an appellate court can only interfere if the exercise of that discretion has miscarried.
The total effective sentence imposed in the present case is undoubtedly severe. No doubt it would have been open to the judge, in a sound exercise of the discretion conferred upon him, to impose a more lenient sentence, consistently with the more lenient sentences imposed or upheld in the cases to which I have referred. However, the sentence imposed is generally consistent with other sentences which have been imposed or upheld by this court, viewed broadly, as they
must be. It is significant to the resolution of this question that, although the conduct of the appellant was less physically intrusive than the conduct of the offenders in many of the cases reviewed, and was not accompanied by either threats or force, nevertheless, the adverse impact upon the complainants appears to have been as profound and as enduring as in many of the other cases reviewed. In the result, I have concluded that although the total effective sentence imposed in this case was undoubtedly severe, it was not so severe as to manifest error, in the sense that the sentence was not open to the judge in the sound exercise of the discretion conferred upon him. It follows that appellate intervention cannot be justified.
Conclusion - appeal against sentence
I would grant leave to appeal in respect of that aspect of the appeal against sentence which alleges implied error, but otherwise refuse leave. However, the appeal against sentence should be dismissed.
Overall conclusion
For these reasons, the application for leave to appeal against conviction and the appeal against conviction should be dismissed. The application for leave to appeal against sentence should be allowed in respect of the allegation of implied error but otherwise dismissed. The appeal against sentence should be dismissed.
MITCHELL JA:
I agree with the orders proposed by Martin CJ. I agree with his Honour's reasons for dismissing the appeal against conviction. I also agree with his Honour's reasons for concluding that leave to appeal should be refused insofar as the ground of the appeal against sentence asserts express error.
The only submission advanced in support of the ground of appeal against sentence, so far as it asserts inferred error, is that, having regard to the facts and circumstances in three specified cases, 'the sentence imposed on the appellant here is towards the upper end of the scale'. As Martin CJ explains, that statement does not identify any inferred
error in relation to the application of the totality principle.[68] Further, for the reasons I explained in State of Western Australia v Tittums,[69] I am of the view that it is unhelpful to express a conclusion about inferred error by reference to an available range of sentences.
[68] As to which see Roffey v The State of Western Australia [2007] WASCA 246 [23]-[26] and the recent summary of principle in Salkilld v The State of Western Australia [2017] WASCA 168 [48].
[69] The State of Western Australia v Tittums [2018] WASCA 23 [121]-126].
Martin CJ has reviewed a number of other cases involving intra-familial sexual offences against children. The role of other cases in determining an allegation of inferred error was recently summarised by this court in Allen v The State of Western Australia,[70] in the context of an allegation that an individual sentence was manifestly excessive. The role of other cases in dealing with an allegation of inferred error in the application of the totality principle to sentences for multiple offences is no greater. In each case, the consistency sought by the exercise of appellate jurisdiction is consistency in the application of relevant legal principles. Appellate intervention is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[71]
[70] Allen v The State of Western Australia [2017] WASCA 203 [62]-[65].
[71] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28].
Often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.
In LJH, Martin CJ noted that it is customary to make reference to cases said to be comparable when making submissions in support of a ground invoking the totality principle in cases involving sexual offending against children. His Honour observed:[72]
Those cases illustrate the point made many times by this court in appeals against sentences imposed for sexual offending to the effect that there is no established tariff for sexual offences involving children, as the circumstances of sexual offending, and sexual offenders, are infinitely variable. It follows that the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion.
From time to time judges of this court undertake reviews of a significant number of cases in a particular category for the purpose of identifying the standards of sentence customarily imposed in cases of that kind. ... The range of sentences identified in each of those reviews reinforces the proposition that it is preferable in appeals of this kind to focus upon the relevant circumstances of the offending conduct, and of the offender, in the context of standards of sentencing customarily imposed as revealed by a range of cases, rather than to undertake a comparison of the total effective sentence imposed in the case under appeal with total effective sentences imposed in specific cases. When undertaking that process, obviously the most significant factor is the seriousness of the offending conduct.
I agree with those observations.
[72] LJH [81]- [82].
In the present case, the appellant's offending conduct involved a sustained course of abuse against two victims, both of whom suffered severe ongoing psychological impacts as a result of the offences. The age of the victims at the time of the offending (between 9 - 11 years in the case of LW and 7 - 12 years in the case of MW) was an aggravating factor. The overall level of criminality involved in the offending is significantly elevated by the fact that there were two victims who suffered the trauma of serious sexual abuse by the appellant. The appellant engaged in a gross and continuing breach of the trust which had been placed in him, taking advantage of the vulnerable positions of the victims due to their young age. Significantly, the appellant did not have the mitigating effect of a plea of guilty.
Having regard to all the circumstances of the offence and the offender, and all relevant sentencing principles, the total effective sentence of 12 years' imprisonment imposed on the appellant bears a proper relationship to the overall criminality involved in all of the offences. The total effective sentence might be regarded as high in comparison with sentences imposed in some of the other cases to which Martin CJ has referred. But neither a review of those other cases nor any of the circumstances of this particular case drives me to conclude that there must have been some misapplication of principle by the sentencing judge.
For these reasons I agree with Martin CJ that, while leave to appeal against sentence should be granted so far as the ground of appeal alleges inferred error, the appeal against sentence should be dismissed
CHANEY J:
I agree with reasons given by Martin CJ that the leave to appeal against conviction should be refused and the appeal dismissed. I also agree with his Honour's conclusions that leave to appeal against sentence on grounds asserting express error should be refused, and that leave to appeal against sentence on the ground of inferred error should be granted, but that the appeal against sentence should be dismissed. Like Martin CJ and Mitchell JA, I am satisfied that there is nothing in the circumstances of this case or in the review of similar cases undertaken by Martin CJ that leads to the conclusion that there has been some misapplication of principle by the sentencing judge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO MARTIN CJ18 APRIL 2018
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