Jyl v The State of Western Australia - [2021] WASCA 222

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JYL -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 222
CORAM:   BUSS P
MAZZA JA
HALL J

HEARD:   21 OCTOBER 2021
DELIVERED          :   30 DECEMBER 2021
FILE NO/S:   CACR 180 of 2020
BETWEEN:   JYL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 181 of 2020
BETWEEN: JYL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number            :   IND 1785 of 2019

Catchwords:

Criminal law - Appeal against conviction - Sexual offences against sister and daughter - Whether trial judge made errors in summarising the evidence - Whether trial judge made an unfair comment on evidence of a witness - Whether trial judge made an error in ruling that questions put to a complainant in cross‑examination went only to credit - Admissibility of evidence to contradict a witness on a matter going only to credit - Collateral evidence rule

Criminal law - Appeal against sentence - 14 sexual offences against two complainants who were children at the time of the offences - Whether sentencing judge erred by taking into account documents that had been excluded as unreliable at the trial - Whether reliance was material where findings as to lack of remorse were inevitable - Whether total effective sentence of 14 years imprisonment infringed both limbs of the totality principle

Legislation:

Sentencing Act 1995 (WA), s 15

Result:

CACR 180 of 2020

Leave to appeal refused
Appeal dismissed

CACR 181 of 2020

Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed

Category: B

Representation:

CACR 180 of 2020

Counsel:

Appellant	:	S B Watters & D V Truran-Fowler
Respondent	:	K C Cook

Solicitors:

Appellant	:	Petherick Cottrell Lawyers
Respondent	:	Director of Public Prosecutions (WA)

CACR 181 of 2020

Counsel:

Appellant	:	S B Watters & D V Truran-Fowler
Respondent	:	K C Cook

Solicitors:

Appellant	:	Petherick Cottrell Lawyers
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

AIM v The State of Western Australia [2014] WASCA 155
Chong v The Queen [2020] WASCA 143
CJF v The State of Western Australia [2012] WASCA 69
ERA v The State of Western Australia [2013] WASCA 163
EXF v The State of Western Australia [2015] WASCA 118
FGC v The State of Western Australia [2008] WASCA 47
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
Gulyas v The State of Western Australia [2007] WASCA 263
HAR v The State of Western Australia [2015] WASCA 249
Hughes vThe State of Western Australia [2014] WASCA 78
JJR v The State of Western Australia [2018] WASCA 51
KMB v The State of Western Australia [2010] WASCA 212
LFG v The State of Western Australia [2015] WASCA 88
LYN v The State of Western Australia [2019] WASCA 45
McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307
MHE v The State of Western Australia [2019] WASCA 133
Mills v The State of Western Australia [No 2] [2017] WASCA 52
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
RNN v The State of Western Australia [2010] WASCA 26
Roffey v The State of Western Australia [2007] WASCA 246
SCN v The State of Western Australia [2017] WASCA 138
SG v The State of Western Australia [2013] WASCA 236
Stubley v The State of Western Australia [2010] WASCA 36
Suleiman v The State of Western Australia [2017] WASCA 26
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v PJW [2015] WASCA 113
UGN v The State of Western Australia [2021] WASCA 10
WRT v The State of Western Australia [2020] WASCA 68

JUDGMENT OF THE COURT:

The appellant was charged on an indictment with 14 counts of historical sex offences. The first five counts related to the appellant's younger sister, ER, and occurred between 1972 and 1978 when ER was 10 to 15 years old and the appellant was 25 to 31 years old.[1] The remaining counts related to the appellant's natural daughter, MM, and occurred between 1984 and 1991 when MM was 8 to 14 years old and the appellant was 37 to 43 years old.[2]
[1] White Appeal Book (Appeal Book) 8 - 9.
[2] Appeal Book 9 - 10.
The appellant was convicted of all 14 charges after trial and was sentenced to a total effective sentence of 14 years' imprisonment. He seeks leave to appeal against his convictions and the total effective sentence.
There are four grounds of appeal against conviction. Three of the grounds impugn the manner in which the trial judge summarised the evidence and the defence case to the jury. The fourth ground alleges that the trial judge erred by excluding evidence that ER had a motive to lie about the allegations of sexual offending that she had made against the appellant.[3]
[3] Appeal Book 6 - 7.
In regard to the first three grounds, when the trial judge's remarks are considered in their entirety and in the context of the issues at trial, they do not give rise to any miscarriage of justice. In regard to the fourth ground, the evidence sought to be adduced was not evidence of motive, was only relevant to the credibility of ER, did not fall within any exception to the collateral evidence rule and was properly excluded by the trial judge.
There are two grounds of appeal against sentence. The first ground alleges that the trial judge erred by taking into account evidence of an alleged admission by the appellant in 1992 which had been excluded as evidence at the trial. The second ground relies on both limbs of the totality principle to assert that the total effective sentence of 14 years was disproportionate to the total offending and crushing in its effect.[4]
[4] Appeal Book 77.
The first ground of appeal is without merit because the admission was not material to the findings made by the sentencing judge. As to the second ground, the total sentence could be viewed as being towards the higher end of the appropriate range but having regard to the seriousness of the offending, the length of time over which the offending continued, the fact that there were two victims and the vulnerability of those victims, the sentence was proportionate to the total offending and, notwithstanding the age of the appellant at the time of sentencing, does not justify reduction due to any crushing effect.
For the reasons that follow, leave should be refused in respect of each of the grounds of appeal against conviction and that appeal dismissed. Also, for reasons that follow, leave should be refused in respect of the first ground of appeal against sentence, granted in respect of the second ground of appeal against sentence and the sentence appeal also dismissed.

The prosecution case

The first five counts in the indictment relate to ER. ER is the youngest of nine children born to her parents' union. The appellant is her brother and is older than her by 15 years.
When ER was 9 years old her father walked out of the family leaving her mother to parent the younger children. At that stage some of the older children, including the appellant, had already moved out of home.
When ER was 10 years old her mother began to send her to the appellant's house to stay with him and his wife on school holidays. The appellant and his wife lived at that time at a house in Eacott Street in Mandurah.
The appellant and his wife were nudists at this time and encouraged ER to be naked during her stays with them. The appellant and his wife took ER to a nudist beach and a nudist swimming pool. ER would also bathe with the appellant and sometimes his wife in the bathroom of the family home.
Shortly after ER began staying with the appellant and his wife during the school holidays the appellant began to sexually abuse her. The abuse escalated in seriousness over time and as ER developed through puberty. The abuse only ended when ER fell pregnant, following which she had a termination. The five counts on the indictment relating to ER were representative of a broader course of offending.
The circumstances relating to count 1 are as follows. One day when ER was at the Eacott Street house she and the appellant were in the loungeroom watching television. Both were naked. The appellant invited ER to sit on his lap so he could give her a back rub. ER climbed onto his lap and sat with her back facing him so she was looking towards the television. The appellant rubbed her back for about five minutes and then brought his hands around to rub her chest over her breast area for about 10 to 15 minutes. ER could feel the appellant had an erection that was pressed against her bottom. ER excused herself to go to the toilet.[5]
[5] ts 104 - 105.
The circumstances relating to count 2 are as follows. The appellant and ER were again in the loungeroom on the couch watching television during the day. On this occasion the appellant's wife was also sitting on the couch. All three were naked. The appellant asked ER to sit on his lap which she did. The appellant rubbed her back but did not touch her chest on this occasion. ER could again feel the appellant had an erect penis. ER said that these were not the only two occasions on which she sat on the appellant's lap watching television whilst naked.[6]
[6] ts 105 - 106.
The circumstances relating to count 3 are as follows. One night when ER was between the ages of 10 and 14 she was sleeping at the appellant's house when the appellant came in and closed the door behind him. ER was laying on her bed wearing a nightie with no underwear underneath. The appellant said words to the effect of 'I've never seen a vagina with no hair on it before' and asked to look at ER's vagina. The appellant then pulled the blanket back, moved ER's legs apart and touched the outside of her vagina with his fingers for about five minutes. The appellant then said 'I'll let you get some sleep' and left the bedroom.[7]
[7] ts 109 - 112.
The circumstances relating to count 4 are as follows. ER was around the age of 14 and staying at the appellant's house when she got her period. On this occasion the appellant and ER had been bathing together in the bath. As they got out of the bath and ER began to dress herself, the appellant noticed that she had a sanitary pad in her underwear. He said 'if we do it while you've got your period you won't get pregnant'. ER did not know what the appellant meant by that. The appellant then pushed ER back against the closed bathroom door and pulled her underwear down. The appellant opened ER's legs, crouched down in front of her and attempted to push his penis into her vagina. The appellant was unable to penetrate her vagina so he got some Vaseline and put it onto his penis. The appellant was then able to penetrate ER's vagina with his penis which he continued to do until he ejaculated. The appellant then said 'don't tell mum' before getting dressed and leaving the bathroom.[8] After this occasion the appellant would sexually penetrate ER in the same fashion whenever she was staying at his house and having her period. When ER turned 15 the appellant began to sexually penetrate her at times when she did not have her period.[9]
[8] ts 112 - 115.
[9] ts 115 - 116.
The circumstances relating to count 5 are as follows. The first time that the appellant sexually penetrated ER when she did not have her period was an occasion when they were in the bathroom having just had a bath. ER was drying herself and the appellant pushed her against the door and penetrated her vagina with his penis to ejaculation. He did not use any Vaseline on this occasion. The appellant then got dressed and left the bathroom.[10]
[10] ts 117 - 118.
ER gave evidence that when she was 15 the appellant began to give her sexually explicit books to read. The books contained mature content relating to oral sex and other sexual acts. The appellant would ask her questions about the books, such as what chapter she was up to.
When ER was 15 years old she missed a period. At that time, she had not had sexual intercourse with anyone other than the appellant. Shortly thereafter whilst visiting the appellant and his wife she mentioned that she had missed a period. No further discussion regarding this issue occurred during that visit. The following month ER missed a second period. She went to a telephone box and called the appellant. ER said to him 'I think I'm pregnant'. The appellant said words to the effect of 'don't worry, I'll sort it'.[11]
[11] ts 121.
ER had, at around this time, met a boy, KR, who she was later to marry. She commenced a sexual relationship with KR after she turned 16 years old. She then told KR that she was pregnant.
ER was picked up from her mother's house and taken by car to a clinic in Perth where she was sedated for the purposes of a termination procedure. ER turned 16 prior to the termination procedure. ER could not remember who took her to the clinic and could not remember much about the day of the procedure.[12]
[12] ts 121 - 122.
The offending against MM was the subject of counts 6 to 14. MM was born in 1976 and is the biological daughter of the appellant and his wife. MM grew up with her parents and her older brother, BT, at the family home in Leander Way, Ravenswood.
When MM was 8 years old her father began to sexually abuse her. The prosecution case was that the nine counts on the indictment relating to MM were representative of a broader course of offending.
The circumstances relating to count 6 were as follows. The first time the appellant offended against MM was when she was 8 years old. It was in the evening and close to MM's bedtime. MM went into her parents' room where her father was seated on the bed reading the newspaper. The appellant had his back against the headboard and his knees bent up with the paper resting on them. MM's mother was in the loungeroom. MM wanted the appellant to read her a story. She climbed up on the bed on her mother's side. The appellant was wearing a dressing gown with nothing underneath. After several minutes the appellant indicated through gestures that MM should put her hand on his erect penis and move it up and down. MM did so for a period of time and then left the bedroom. After this first occasion the appellant got MM to engage in this type of conduct several times a month in different locations.[13]
[13] ts 197 - 200.
The circumstances relating to count 7 are as follows. When MM was about 9 years old she went into her parents' bedroom to be read a story. The appellant gestured for MM to put her mouth on his penis. MM did so and the appellant pushed her with his hand on the back of her head so that her head moved up and down. MM could not recall how long this incident lasted for but said that the appellant did not ejaculate. MM said that as with the masturbatory conduct the fellatio occurred several times a month, sometimes in conjunction with masturbatory conduct.[14]
[14] ts 200 - 202.
The circumstances relating to count 8 are as follows. When MM was 9 or 10 years old the appellant came into her bedroom one night when she was in bed. MM was wearing a nightie with no underwear. The appellant told her to stay quiet and motioned for her to get off the bed and lay on the floor. The bed had noisy springs. The appellant laid on top of MM and kissed her by putting his tongue in her mouth. MM tried to turn her head away but the appellant was too heavy and strong. He then moved down her body, lifted her nightie and used his tongue in and around MM's vagina. This continued for some time and then the appellant got up and went away. After this occasion the appellant would perform oral sex on MM several times a month in her bedroom.[15]
[15] ts 203 - 206.
The circumstances relating to count 9 are as follows. One night when MM was about 10 or 11 years old and her mother and brother were sleeping the appellant led MM into the laundry. He had MM stand against the door of the linen closet and then he knelt down and performed oral sex on her.[16]
[16] ts 206 - 207.
The circumstances of count 10 are as follows. One night when MM was 10 years old the appellant led her out of the house into the front garden near the driveway. There were no houses nearby, no street lights and it was dark. The appellant took her to a grassed area next to the driveway and laid out an old sleeping bag. The bag was grey on one side with flowers on the other side and had a broken zip. It was usually stored in the laundry. The appellant motioned for MM to lie down on the sleeping bag, which she did. The appellant then laid over the top of her and kissed her with his tongue in her mouth. He then tried to push his penis into her vagina but was not able to achieve full penetration. He moved himself up and down against MM's body and then ejaculated on her vagina. The appellant used the sleeping bag to wipe himself and MM. They then got up and went back inside the house.[17]
[17] ts 210 - 214.
The circumstances in relation to counts 11 and 12 are as follows. At a time following the incident just referred to but whilst MM was still 10 years old and after she had had her first period, the appellant again led her outside the house at night when her mother and brother were asleep. He laid out the broken sleeping bag and got MM to lay on it before lying on top of her and kissing her using his tongue. He lay slightly to the side of MM and tried to penetrate her vagina with his fingers but was unable to move past her hymen. He then attempted to penetrate her vagina with his penis before rubbing himself against her body and ejaculating over her vagina.[18]
[18] ts 214 - 216.
MM said that once she started getting her period the appellant's behaviour changed and he was more selective about when he would offend against her. At this time MM's menstrual cycle was recorded by her mother on a family calendar that hung on the pantry door.
The circumstances relating to count 13 are as follows. One day when MM was about 12 or 13 years old she was swimming with the appellant in the above ground pool in the backyard of their house. No one else was present and both MM and the appellant were naked. It was a regular occurrence for the appellant and his wife to be naked at home and in the backyard in the warmer months. MM was also encouraged to be naked. The appellant took MM to the far side of the pool and laid out a towel on the ground. This area could not be seen from the house. The appellant got MM to lay down on the towel and then laid over the top of her kissing her using his tongue and trying to penetrate her vagina with his penis. MM could feel pressure in her vagina but not full penetration. The appellant moved his body up and down against her. MM could not recall if the appellant ejaculated on this occasion. This was not the only instance of this type of offending behind the pool, but it only occurred in the warmer months of the year.[19]
[19] ts 218 - 220.
The circumstances relating to count 14 are as follows. On an occasion when MM was aged 14 and a half she was sitting in the loungeroom watching television at night. Her mother and brother were both in bed. The appellant came into the loungeroom and motioned for MM to lay on the floor. He then lay on top of her and kissed her using his tongue. He attempted to penetrate MM's vagina with his penis. MM became upset and started to struggle and quietly called for her mother. This was the first time she had called out for help. The appellant said 'she won't believe you, no one will believe you'. MM then got up, went to the bathroom, shut the door and locked it. She waited in the bathroom for about 10 minutes for the appellant to go to bed. This was the last instance of abuse of MM by the appellant.[20]
[20] ts 222 - 224.

At around this time MM got her first boyfriend. He was the first person she told about the abuse. With his support, when MM was about 16 years old she told her mother about the abuse. In response, her mother told her that the abuse was MM's fault. Police became involved but MM wrote a letter in which she said she did not wish to proceed with the complaint. She did this because the appellant had made her feel that she would cause division in the family if the police were involved.
In 2018 ER decided to make a complaint to the police about the appellant's offending. An investigation commenced during which MM was contacted by police who were trying to locate her father. MM advised police at that stage that she also wished to disclose some information. At the time MM made her complaint to police she was not aware that ER had also made a complaint.

The defence case

The defence case was that none of the incidents alleged had occurred.
The appellant did not give evidence but relied on denials that he made in a police interview. In the interview he denied any sexual contact with ER and denied the offending against MM. He admitted that on one occasion he had touched MM on the breasts whilst in the pool but said that it was accidental and in the course of play. He suggested several reasons why ER might have a motive to lie about the allegations.[21]
[21] Transcript of the appellant's electronic record of interview conducted 14 December 2018 (appellant's EROI); Combined Blue and Green Appeal Book 60 - 130; exhibit 20.
The defence also called as witnesses ER's former husband, KR, and the appellant's son, BT. KR's evidence will be referred to in more detail later in these reasons. The significance of KR's evidence was that he said that the first time he and ER had sex she told him that she was a virgin and when they had sex for the first time it was difficult to achieve penetration and KR noticed that afterwards there was blood on the bed sheets. KR also gave evidence that ER told him that she was pregnant and KR believed that the baby was his. He said that he went with ER and a social worker to the appellant's house to get him to sign the papers relating to the termination procedure because ER was too scared to talk to her mother about it. About a week or two later he went with ER to a clinic near King Edward Memorial Hospital to have the procedure done.[22]
[22] ts 296 - 297.
BT gave evidence that his family moved into the Eacott Street house when he was aged 5 (in 1975) and lived there until he was aged 9. The house was a small one with two bedrooms and a converted sleepout area. BT occupied one of the bedrooms until his sister, MM, was born at which time he moved into the sleepout. He said that his parents did not engage in nudism to his knowledge and they were never naked in the house in front of him.[23] He said that he never saw ER at the Eacott Street house and that ER never stayed overnight at that house. He said that his grandmother (ER's mother) was a hardworking woman who took a lot of pride in her large garden. He described her as a matriarch who seemed quite tough and would not tolerate kids mucking around. He said he did not think his grandmother found it difficult to handle children. The family moved to the Leander Way property when he was about 10 years old.[24] He did see his parents naked at this house as they would swim naked in the family pool. He said that MM would wear bathers whilst swimming.[25] He never witnessed anything inappropriate between his father and MM.[26] He confirmed that he did not have a close relationship with his sister growing up and that they did not confide in each other.
[23] ts 307 - 308.
[24] ts 309 - 310.
[25] ts 311.
[26] ts 324.

Evidence of ER

The first three grounds of appeal against conviction relate to directions to the jury by the trial judge in regard to the effect of evidence given by ER, KR and BT. The relevant evidence is that relating to ER's pregnancy, her first sexual encounter with KR and evidence given by BT regarding his grandmother. For the purposes of this appeal it is only necessary to summarise those parts of the evidence.
ER said she became aware that she was pregnant before her 16th birthday. She could not recall how close it was to her birthday but said she became aware when she missed a period. She told the appellant and his wife that she had missed a period but cannot recall the conversation or if anything in particular happened at that time. After she returned to her mother's house she missed a second period.[27]
[27] ts 120 - 121.
ER gave the following evidence as to what happened thereafter:[28]
[28] ts 121 - 123.
And then what happened?---I missed another period and I went to the phone box - a local phone box and I called, [JYL] answered and I said, 'I think I'm pregnant.'
So this is the second period that you've missed in a row?---Yes.
And you say that you've gone to a phone box and called [JYL]?---Yes.
And has he answered?---He answered. And I said, 'I think I'm pregnant.' And he said, 'I'll sort it.'
He said, 'I'll sort it.'?---'Don't worry. I'll sort it.' Yep.
Did he explain what he meant by that?---No.
And what, if anything, was the next thing that happened after that phone conversation?---I was picked up and taken to the clinic.
You say you were picked up. Who picked you up?---I - [JYL], I - I really can't remember, I'm sorry.
You can't remember who picked you up?---No, I'm getting quite tired, sorry.
Do you think you can continue this afternoon, [ER]?---Yes. Definitely.
I only have a few more questions for you?---Yes. Of course.
So [ER], you were picked up by someone?---Mm hmm.
And when you were picked up by someone, do you remember where you were when you were picked up?---My mother's house.
And where did you go?---It was a long drive. I don't know the actual place, I'm sorry.
Before you were picked up by someone, did you have a conversation with anyone else about these two missed periods?---Yes. I'd met [KR] by then, but I just told him I had missed a period, I - and I thought I was pregnant.
Okay. Who was [KR]?---My ex-husband.
Okay. Let's put him to one side, for a moment. I'm going ‑ ‑ ‑?---Mm.
- - - to continue asking about this trip to the clinic?---Mm hmm.
You said it was a long drive?---Yes.
Do you remember if it was heading north or south away from ‑ ‑ ‑ ?---I thought north.
And do you remember where this clinic was?---No. But I - I assumed it was Perth.
Now, you said that it was - when you first missed your period, you were 15, not yet 16?---No, I know I wasn't 16.
And when you went for this long drive to a clinic, do you know whether or not you had celebrated your 16th birthday?---Yes, I had.
And do you remember what happened once you got this clinic?---Not really. I was put in a white gown and sedated.
What did you understand was happening on that occasion?---That I was going to have an abortion.
And do you remember coming to after the operation?---Yes, I do.
And do you remember how you left the clinic?---I remember sitting there for a while and then I think - yeah, I was picked up and dropped back off at my mother's house.
Do you remember who picked you up and dropped you off at your mother's house?---I'm sorry, no. It's a bit foggy.
Now, prior to missing your period that first occasion, [ER] ‑ ‑ ‑?‑--Yes.
- - - had you had intercourse with anyone else apart from your brother?‑--No.
ER was then asked about KR and gave the following evidence:[29]
[29] ts 123.
And when did you first meet Ms - Mr [KR]?---I'm not sure if it was just before I turned 16.
So it might have just been before?---Yes.
And - and - or it might have been what?---I - I know I was 16 when we had sex so we'd first had - I had sex with [KR] so yep.
So you think that you met [KR] just before you were 16?---Yes.
And at some point, you started a sexual relationship with him?---When I was 16, yes.
When you were 16. Putting aside what had been taking place with your brother, [JYL], [KR] [sic], was [KR] your first sexual partner?---Yes.
And did you have - when you started having sex with [KR], was this before or after the abortion?---Before.
Did you have any conversations with [KR] about your pregnancy?---I just said that I was pregnant.
Did he ask for any details?---No.
Were there any conversations about the abortion with [KR]?---Not that I can recall.
Now, after the abortion, [ER], was there anything else of a sexual nature that took place between you and your brother?---No, that was the - that was the end.
And that was - the abortion, was that shortly after you were 16?---Yes.
In cross-examination it was put to ER that she had been going out with KR for about five or six months prior to the termination and that he was, in fact, the father of the child. ER denied that and maintained that the appellant was responsible. In regard to the termination procedure, ER gave the following evidence in cross-examination:[30]
[30] ts 134 - 135.
[KR] was with you when you went to have the termination procedure?‑‑‑Okay. I'm a bit sketchy on that.
I don't really remember, so.
Do you accept that he was there?---I - - -
You don't know?---I don't know. I'm sorry.
There was another young woman that was also in the car, that was also having a - a termination procedure conducted that day, correct?---No. I've never heard of that before, no.
There was a social worker?---Okay. No, I don't remember that. No.
Well, you went to Eacott Street, correct?---Yes.
So you travelled from your place in Ray Street, Rockingham where you lived with your mother and sisters - - -?---Mm hmm.
- - - to Eacott Street, correct?---Yes.
How did you get there?---[KR] drove.
[KR] drove?---Yes, cos I couldn't drive at that age.
I'm sorry, I thought you said you couldn't recall if he was present?---At the abortion, no.
But [KR] drove you to Eacott Street?---Yes. We - that's when I told him I was pregnant. Not the actual abortion he picked me - I was picked up from my house.
I'm sorry. You were picked up from your house by [KR]?---By someone. I do not know if it was [KR].
And you cannot recall if [KR] was there?---No, I cannot.
ER said that she was certain that she did not drive because she was not old enough to have a driver's licence at that time. However, she could not recall who did drive the car or who else went with her to the termination procedure appointment. She was then asked:[31]
[31] ts 135 - 136.
Now, you went to Eacott Street to ask [JYL] to sign the papers because of your age?---Yes, we - I went there to - to tell him I was pregnant and - yeah.
And [KR], how old - - -
STAUDE DCJ: I think, [ER], Mr Petherick's questions are relating to the day that you went for the termination?---Okay. Sorry. He was confusing me.
Is that right, Mr Petherick?
PETHERICK, MR: Yes, sir.
STAUDE DCJ: Yes. I think that's - - -?--- He's - - -
The questions are about the day that you travelled to - - -?---Okay. No, he's confusing me. I'm sorry.
All right. Well, we'll just get that clear.
PETHERICK, MR: I'm sorry, I'll - I'll take a step back.
I'm talking about the day of the termination procedure?---Yes, that's - okay.
So you left Ray Street. Do you know what time?---During the day. I can't recall a time.
You went to Eacott Street for the purpose of your older brother [JYL] signing the papers that would consent to the termination procedure?---I don't remember going to there.
I'm sorry?---I don't recall going there.
To Eacott Street?---Yes, I thought we went straight to the place.
Later in the cross-examination ER was asked about her first sexual encounter with KR. She gave the following evidence:[32]
[ER], I want to ask you about your first sexual intercourse occasion with [KR]?---Okay.
That took place in yours and [her sister's] bedroom at Ray Street, Rockingham?---I really can't recall.
That it was an occasion where there was considerable bleeding from your vagina area?---No, there wasn't. [KR's] foreskin had sort of split a bit from his penis and that was the blood, because when you break a hymen there's only a very tiny bit of blood.
And you complained of considerable discomfort at the time?---Well, I really can't remember, sorry.
And the net effect is that you lost your virginity on that occasion to [KR]?---No, I didn't.
On that occasion, didn't you say to [KR] immediately before the sexual experience that you were a virgin?---I never discussed being a virgin with [KR].
[32] ts 174.
ER was then asked a series of questions relating to her nephew, BT. These questions are relevant to ground 5 and are as follows:[33]
When [BT] was a child, you sexually offended against him. Correct?---No.
You've heard those allegations before?---No, never.
That is the reason why [JYL and his wife] have had nothing to do with you for 20-odd years?---That is not true. Four years ago he rang. He came to my sister [MT's] place and they came in to see me in hospital.
These allegations are a case of the best form of defence is attack. You've created these allegations, haven't you, against [JYL]?---Created them? No, they're true.
Around the time of making these allegations against [JYL], the first time you made the allegations, you also made allegations against your brother-in-law [DP] of a similar nature?---No, I did not.
Are you sure about that?---Absolutely.
The allegations that you are making in this trial against [JYL] are also motivated by jealousy and the hope for financial gain, aren't they, [ER]?---No. I do not expect to get any financial gain. I don't need any financial gain.
[33] ts 175.

Evidence of KR

KR said that he first met ER when she was 15 years old and he was 18. He said that they did not have sexual intercourse until ER was 16 'because we waited until she was legal age'. He said when sex first occurred it was in the back bedroom of ER's mother's house and that immediately prior she told him that she was a virgin. He said that ER was hard to penetrate and that he went to the bathroom to get some Vaseline. Penetration did not last long as it was too painful for ER. He said that after they finished, they turned the lights on and he observed there was blood on the bed sheet. He said that the blood came from ER.[34]
[34] ts 294 - 296.
KR was then asked about an occasion when he went to the appellant's house. He gave the following evidence:[35]
[35] ts 296 - 297.
What did you go there for?---[ER] told me that she was pregnant. We went and got a pregnancy test which proved it and [ER] organised for a counsellor to have the foetus aborted and - but we had to go (to) [JYL and his wife's place] because [ER] was too scared to talk to her mother about it and we needed a signature.
So when you say, 'We', do you know who the foetus belonged to?---Well, it was mine because [ER] and I - that was our first time having - because she was 15 when we met and it was after 16 that - - -
So - - -?--- - - - we had intercourse.
When you say, 'Papers needed to be signed' - - - ?---Yeah.
- - - is that why you went to Mandurah?---Yes.
Do you remember the address in Mandurah?---I just know it was in the old part behind the shopping centre, somewhere around that area.
And who went to that address?---There was [ER] and myself and the social worker.
Who was the social worker, do you know?---Don't know.
Who drove?---I drove [ER] down there and the social worker met us down there.
Did you see the papers that needed to be signed? ---The papers were in front of me but I didn't read them.
How long were you at the Mandurah address belonging to [JYL] for?---At the time of the signing we had a cup of coffee or a cup of tea and it'd be roughly half an hour, something like that.
And what did you do after that?---We went home.
So I'm talking you - you went to Mandurah to get some papers signed?---Yes.
Were they signed?---Yes, they were because [JYL] signed them in front of me.
And where did you go after that?---[ER] and I went home and then I think it might have been a week or two weeks later we went up to just behind King Edward Hospital there was a clinic up there.
Why did you go to the clinic?---To have the abortion.
Now, how did you get to the clinic?---The social worker took us up there.
All right. So who drove?---Social worker.
Who else was in the vehicle?---There was - in the backseat there was myself at the window, [ER] in the middle and there was another lady, I don't know who these people were, and there was another lady in the front.
Was [JYL] in the vehicle?---No.

Evidence of Dr Maire Kelly

Dr Maire Kelly is a medical doctor with additional qualifications in clinical forensic medicine and experience in the treatment of victims of sexual assault. She has conducted research into the incidence of injury following sexual assault. In particular, with colleagues at the Sexual Assault Resource Centre, she has published papers on the incidence and prevalence of genital injury following allegations of sexual assault.
Dr Kelly said that there are various factors that may cause a woman to bleed during vaginal penetration. Those factors include the age of the woman, whether the woman has previously been sexually active, the elasticity of the genital tissues, whether there are any pre‑existing pathologies of the skin or mucosa, the use of lubrication, the presence of menstrual blood, the degree of force used and the size of the penetrating object.[36]
[36] ts 272.
Dr Kelly was asked whether it was possible for a woman who has had previous non-consensual penile vaginal intercourse to experience bleeding as a result of subsequent consensual penile vaginal intercourse. She said that it was. Though tearing of the hymen, which she described as an elastic collar of tissue surrounding the entrance to the vagina, could result in bleeding, the hymen was capable of healing.[37] She referred to research which identified that injuries to the hymen of pre-pubertal female children of between 4 months and 18 years of age who had been subjected to sexual abuse healed within 24 hours to 34 days. All but the deepest lacerations healed without leaving evidence of previous trauma. Other research looked at pregnant adolescents and found that in 64% the hymen was intact and that for a further 22% there were inconclusive findings. In a further study genital examination of children who had been the victim of sexual abuse that had been proven in a court found that 75% were normal or had non‑specific changes.[38]
[37] ts 273.
[38] ts 274 - 275.
Dr Kelly said it was uncommon to have bleeding with consensual sex, but it can occur. She said if the woman has previously experienced non-consensual penetration this may increase the likelihood of bleeding because associated stress and tension may result in an inability to relax fully or lubricate naturally. For these reasons a report of bleeding during consensual sex does not necessarily indicate that it was the woman's first sexual experience.[39]
[39] ts 276.

The appellant's police interview

In the police interview with the appellant he was asked about ER's termination and said the following:[40]
[40] Appellant's EROI 17 - 18; Combined Blue and Green Appeal Book 76 - 77.
1/CON SPENCER: Okay. Alright. So, um, do you recall [ER] ever falling pregnant as a teenager?
[APPELLANT]: Yes. I do.
1/CON SPENCER: Okay. Can you tell me about that?
[APPELLANT]: Her, [ER] came to us, ah, [ER] and a lady, but I don't know who the lady was. I assume it was a, um, maybe a social worker or a, um, some sort of person like that - - -
1/CON SPENCER: Yeah.
[APPELLANT]: Which had, because she was driving.
1/CON SPENCER: Yep.
[APPELLANT]: And they say that, um, ah, I think it was mum wouldn't understand if she got, um, pregnant.
1/CON SPENCER: Yeah.
[APPELLANT]: So they asked if I would sign the papers - - -
1/CON SPENCER: Mmm.
[APPELLANT]: For an abortion.
1/CON SPENCER: Okay.
[APPELLANT]: And, which was horrible. I'll never forgive [ER] for that, but, but I never said anything. But - - -
1/CON SPENCER: Mmm.
[APPELLANT]: Because it was horrible. She, and then, a short time later - - -
1/CON SPENCER: Mmm.
[APPELLANT]: She married [KR], her husband.
1/CON SPENCER: Okay.
[APPELLANT]: So I assume that the baby was [KR's]. So - - -
1/CON SPENCER: Okay.
[APPELLANT]: If that's the case, why couldn't she have just waited a bit longer and, or married at bit earlier or something maybe.
1/CON SPENCER: Okay.
[APPELLANT]: But she was young, I suppose. Sixteen or something.
1/CON SPENCER: So she was about sixteen at the time when this happened?
[APPELLANT]: I think so. Yes.

1/CON SPENCER: Yeah.
[APPELLANT]: About that.
1/CON SPENCER: So, at the time, does she, so you say she has come to your house with a lady.
[APPELLANT]: Mmm.
1/CON SPENCER: So you're not sure who the lady was. She might have been - - -
[APPELLANT]: No. I don't know.
1/CON SPENCER: A social worker or something.
[APPELLANT]: No.
1/CON SPENCER: And they've asked you if you would sign abortion papers because - - -
[APPELLANT]: Yes.
1/CON SPENCER: They didn't want to tell, or [ER] didn't want to tell her mum.
[APPELLANT]: Yep.

Later in the interview, after denying that anything sexual had ever happened at the Eacott Street house with ER, the appellant was asked what his relationship with ER was like now. He then said:[41]
[41] Appellant's EROI 21 - 24; Combined Blue and Green Appeal Book 80 - 83.
1/CON SPENCER: So what's your relationship like with [ER] now?
[APPELLANT]: Ah, not very good. No
1/CON SPENCER: Okay.
[APPELLANT]: Very, very poor.
1/CON SPENCER: Okay. And what is that?
[APPELLANT]: Um, probably she, well, I suppose the abortion sort of, but, no, probably not that. But, later on, she, um, um, we didn't find out at the time, but, when we were, um, later, she molested our son.
1/CON SPENCER: [ER]?
[APPELLANT]: Yeah.
1/CON SPENCER: Yep.
[APPELLANT]: [ER] did. And, um, but didn't tell us until, well, it was, um, probably, he, [BT's] wife organised a surprise party.
1/CON SPENCER: Mmm.
[APPELLANT]: And we didn't invite [ER] because we knew about that.
1/CON SPENCER: Yep.
[APPELLANT]: Because, um, [MA], [BT's] wife, you know - - -
1/CON SPENCER: [MA].
[APPELLANT]: Told us. Yeah. [MA].
[APPELLANT]: And, um, yeah. So it, it was sort of, um, some of the others were a bit, um, miffed about it, too. Like, I think [MA] and [KA] may have had a bit of a go at us for, for not inviting [ER].
1/CON SPENCER: Oh, okay. Yep.
[APPELLANT]: But we couldn't because it was [BT's] party.
1/CON SPENCER: Yeah.
[APPELLANT]: Or (BT's) surprise party that, you know - - -
1/CON SPENCER: Yeah.
[APPELLANT]: Would have spoilt it for, it's really his party. So - - -
1/CON SPENCER: Okay
[APPELLANT]: So - - -
1/CON SPENCER: And what year was that?
[APPELLANT]: [ER] was, yeah?
1/CON SPENCER: What surprise party was it? Like, what birthday was that?
[APPELLANT]: It was [BT's], um, I think it was his thirtieth birthday party.
1/CON SPENCER: Okay. So, so, so you found out that [ER] had molested [BT] as a child.
[APPELLANT]: Yeah. I think he was about eight.
1/CON SPENCER: Okay.
[APPELLANT]: I think [ER] was fifteen or something like that.
1/CON SPENCER: Okay. So tell me about that.
[APPELLANT]: That's all I know.
1/CON SPENCER: Oh, okay.
[APPELLANT]: Yeah.
1/CON SPENCER: So where did you hear that?
[APPELLANT]: Ah, from, um, from, ah, no, it wouldn't have been from, oh, no, from [BT]. [BT] come rushing, I think, when, when his marriage split up, [BT] was sort of upset about it and like he was sort of making an excuse that my marriage has, ah, split up, ah, broken up -
1/CON SPENCER: Mmm.
[APPELLANT]: And [ER], [ER] interfered with him or something. I don't know the exact words, but that's what it was because - - -
1/CON SPENCER: Oh, okay.
[APPELLANT]: Yeah. And, and - - -
1/CON SPENCER: So he said that to you.
[APPELLANT]: He said that to - - -
1/CON SPENCER: Okay.
[APPELLANT]: To me and [my wife].
1/CON SPENCER: Oh, okay.
[APPELLANT]: Yeah. But [MA], I think, told, um, [my wife] a bit more than that.
1/CON SPENCER: Okay.
[APPELLANT]: Yeah.
1/CON SPENCER: Do you know if [BT] has ever reported this to the police?
[APPELLANT]: No. I'm pretty sure, no, he wouldn't. He, we never mentioned to him and we would not - - -
1/CON SPENCER: Okay.
[APPELLANT]: Do it because I think it would upset him. He's not as - - -
1/CON SPENCER: Yep.
[APPELLANT]: Tough as, you know.
1/CON SPENCER: Yeah. Okay. And where, did he say where this happened?
[APPELLANT]: He said it happened in the, um, at the, Ray Street, um - - -
1/CON SPENCER: Mmm.
[APPELLANT]: Where they lived.
1/CON SPENCER: Yep.
[APPELLANT]: Where [ER] lived at the time.
1/CON SPENCER: Okay.
[APPELLANT]: And in a bedroom.
1/CON SPENCER: Okay.
[APPELLANT]: Well, I think it was a bedroom off the kitchen or something I think it was.
1/CON SPENCER: So it happened at Ray Street.
[APPELLANT]: Yeah. Ray Street.
1/CON SPENCER: And [ER] was about fifteen.
[APPELLANT]: Yes, yes.
1/CON SPENCER: Okay. Did he say what happened?
[APPELLANT]: No.
1/CON SPENCER: Okay. Alright. And have you ever confronted [ER] about it?
[APPELLANT]: No.

Evidence of BT

BT is the appellant's son. He was called as a defence witness.
BT gave evidence that ER did not stay overnight at the Eacott Street house when he was a child. He did not recall ever seeing her at the Eacott Street house. He did recall seeing her at her mother's, his grandmother's, house. He was asked questions regarding his grandmother and gave the following evidence:[42]
Now, was she a - an energetic person?---Yes, I always - I remember her in the garden, quite hard working, always tending to quite a large yard. Yeah, she seemed to take a lot of pride in that - that environment her yard.
And were you able to describe her appearance emotionally?---More of a - more of like a matriarch cos I mean she was - seemed to be quite, you know, tough I'm guessing, yes. Wouldn't take - wouldn't take, you know, you mucking around sort of.
Did she find it difficult to handle children?---I don't think so.
[42] ts 310.

Trial judge's ruling on collateral evidence

During the course of the cross-examination of ER, and in the absence of the jury, defence counsel raised a number of issues with the trial judge. The third of these is relevant to ground 5. Defence counsel said:[43]
The third issue, your Honour, it's alleged that in - sorry, in 2000, [BT] when aged 30 made allegations that [ER], this witness, had sexually offended against him when he was a child. That led to a fallout between the families between [ER] and [JYL and his wife] and it's cross-examination of a kind that would be put to her that she's made allegations against [JYL] to deflect from her own offending.
[JYL] comments on this in his video record of interview, your Honour, which has been agreed may be admitted to the jury so that is an issue that out of duty and fairness I would like to put to the witness, your Honour. Potentially though, it goes towards sexual history so in an abundance of caution, it would be perhaps perverse to shelter behind section 36BC for your own criminal offending but potentially it does relate to sexual history, sir.
STAUDE DCJ: Right. What's the part of the record of interview that touches on allegations that were made - - -
PETHERICK, MR: If I could just find it, sir.
STAUDE DCJ: - - - by [BT]?
PETHERICK, MR: I think it's 30 to - about - towards the end of page 30 through to the top of 32, sir.
STAUDE DCJ: Well, in the version that I have, that part has been edited.
PETHERICK, MR: That was a proposal from the State which has since been resolved and it's now remaining in, sir. We would also like to call evidence on the issue from [BT] whose statement's in the prosecution brief, sir, but he hasn't been called as a witness for the prosecution.
[43] ts 169.
The prosecutor's response to defence counsel's proposal was to say that this was an issue that went to the credit of ER and that, whilst defence counsel could put questions to ER, he would be bound by her answers and that any evidence from BT on this issue would be inadmissible as it would breach the rule against the admission of evidence on merely collateral issues.
The trial judge ruled:[44]
I'm inclined to deal with the other matters (2) and (3) as you've identified them on the basis that they are matters that go to credit only. You can certainly put those allegations or put those matters to the witness, but you will be bound by her answers.
[44] ts 174.

Trial judge's summing up

The trial judge gave all of the standard directions to the jury which were required in a case of this nature, including on the presumption of innocence and the onus and standard of proof. No complaint is made about the directions other than in respect of the issues that are the subject of the grounds of appeal. Accordingly, we will only refer to the relevant parts of the summing up.
His Honour directed the jury that they must decide the case on the evidence and should not speculate as to matters that were not in evidence. He gave a number of examples of matters about which there was no evidence. In this context he referred to the allegations made by the appellant in the police interview that ER had molested BT:[45]
Similarly, you shouldn't speculate about the statements by [JYL] in his police interview that his son [BT] had made an allegation that he'd been molested by [ER] in 2000 I think was when it was suggested. There is no evidence that he did so. [JYL] merely offered that as a reason for [ER] to be angry for not being invited to parties.
[45] ts 358 - 359.
His Honour reminded the jury that the defence had suggested to ER in cross-examination that she blamed the appellant for the breakdown of her relationship with her siblings and resented him because she had not been invited to family events. It had also been suggested that ER blamed the appellant for the abortion, that she felt guilty about it and that she wanted to deflect attention from allegations apparently made in 2000 that she had molested her nephew, BT, when he was a child. The defence had also suggested that ER was bitterly envious of the appellant's wealth and interested in some form of financial gain. His Honour reminded the jury that ER had denied these suggestions. She did not dispute that her relationship with her siblings had broken down since 2018, but said that this was because she had pursued complaints against the appellant contrary to their wishes.
His Honour then said:[46]
Now, the defence is not suggesting that any of these things was necessarily the reason for [ER] giving false evidence against the accused, but the defence invites your consideration of that possibility. Now, members of the jury, as a matter of common sense you are entitled to consider whether the evidence has thrown up anything that might indicate that [ER] had some motive for making a false complaint and for giving false evidence in this trial. The possible presence of something of that kind has, of course, as a matter of common sense the potential to case doubt on the reliability of her evidence.
You are entitled to consider that possible scenario, but you should remember at all times that the onus rests with the prosecution. There is no onus on the accused person [JYL] to point to any such motive or to establish any motive for [ER] or indeed [MM] giving false evidence.
Furthermore, members of the jury, while the existence or possible existence of a motive is something that is potentially relevant, the apparent absence of any motive is irrelevant and cannot be taken as something which strengthens the prosecution's submission that the complainant's evidence was truthful.
And that applies to [ER's] evidence if you find that she had no motive and also to [MM's] evidence, it not being put to her that she had any motive to give false evidence against her father. The defence position is that [ER] is a dishonest witness. The defence submits that she had made up false allegations against her brother. In any event, the defence submits that her evidence is unreliable. It is submitted that she's wrong in her description of the house in Mandurah and that evidence of the circumstances of her pregnancy termination and the start of her relationship with [KR] is incorrect and inconsistent.
[46] ts 388 - 389.
His Honour summarised the evidence of ER and KR, in particular their respective accounts of their first sexual encounter and the circumstances surrounding the termination procedure. He then said:[47]
He [KR] gave evidence of their first sexual encounter. He said that [ER] said that she was a virgin. On his evidence, that encounter didn't go very well. He said that she was hard to penetrate, there was bleeding and that it was painful for [ER]. He said he recalled being shown the pregnancy test and he recalled going with a social worker to [JYL's] place to get papers signed in relation to the termination procedure. He recalled going with a social worker and others to a place near King Edward Maternity hospital for that procedure.
Now, there are obvious inconsistencies between his evidence and [ER's] evidence because she said that they did not discuss virginity and she said that she did not bleed, but there was a time when he did so that he denied. He gave an account of the day of the termination procedure that you might think is somewhat different from what she recalls, but on both accounts [JYL] was involved in signing the papers. [ER's] evidence in court about that day was that her memory was not clear.
Whether those matters are material when you are considering the credibility of [ER] is a matter for you. The attribution of the pregnancy is not a critical issue in this trial. What is in issue as far as the evidence of [ER] is concerned is whether her evidence of being sexually abused by the accused is truthful. If she has a poor recollection of the day of the termination procedure or is mistaken in her belief that [JYL] was responsible for the pregnancy, you might think that is understandable.
Similarly, you may not be troubled by evidence that she said to her new boyfriend that she was a virgin but it is, of course, for you to make what you will of this evidence. None of the evidence is necessarily inconsistent with her evidence of the alleged offences relating to her, but you may think that they bear on her reliability in a material way. That's entirely a matter for you.
[47] ts 393 - 394.

His Honour summarised the evidence of BT, in particular that BT did not recall ER coming to the house to stay or visit when the family was living at Eacott Street. He then referred to what BT had said regarding his grandmother (that is, ER's mother):[48]
He gave some evidence about his grandmother and described her I think as energetic and not taking any mucking around and she could handle children.
That would be an interesting observation if it were made as a five to nine-year-old which was the age that he said that he was when they were living at Eacott Street. That's a matter for you.
[48] ts 394 - 395.

Conviction appeal - grounds of appeal

There were initially four grounds of appeal. Ground 1 was abandoned at the hearing and leave was granted to add an additional ground. There are therefore four grounds of appeal which we will refer to as grounds 2 to 5 (5 being the additional ground). Those grounds are as follows:[49]
[49] Appeal Book 6 - 7; appellant's minute of proposed additional ground of appeal dated 18 October 2021.
2.A miscarriage of justice was occasioned by the way his Honour directed the jury about the relevance of ER's evidence concerning her pregnancy as it related to both count five and her credibility in general;
Particulars:
2.1The 'attribution' of the pregnancy was a critical issue in relation to count five on the Indictment;
2.2His Honour misstated the evidence adduced at trial concerning ER's pregnancy when he inadvertently told the jury that 'on [account of both KR and] ER [JYL] was involved in signing the papers';
2.3ER's belief that the appellant was responsible for her pregnancy was material in relation to both count five and to an assessment by the jury of her credibility and was not, as his Honour told the jury, a mistake 'understandable' based upon her poor recollection of the day of the termination procedure.
3.A miscarriage of justice was occasioned by the way his Honour directed the jury about the relevance of testimony adduced by the defence from ER's] former husband [KR] concerning the first sexual encounter between [KR] and [ER];
Particulars:
3.1His Honour directed the jury they 'may not be troubled' by evidence from [KR] that ER told him she was a virgin when she and [KR] first had sex, when that sexual encounter occurred at a time that post‑dated the alleged offending in count five;
3.2His Honour told the jury the relevant evidence of [KR] was not necessarily inconsistent with ER's evidence about count five when it actually was.
4.A miscarriage of justice occurred in relation to all of the offences involving the complainants MM and ER when the learned trial Judge unfairly undermined the testimony of [BT] in relation to [BT's] recollection of his observation of certain matters from when he was young by remarking unnecessarily to the jury that it was an 'interesting observation if it were made as a five to nine year old'.
5.His Honour erred when he determined that any cross‑examination of ER as to whether she had offended sexually against the appellant's son [BT], which matter was relied upon by the appellant to establish a motive on the part of the complainant to make false accusations against the appellant, went to a collateral issue such that evidence in rebuttal could not be adduced by the defence.

Conviction appeal - ground 2 - appellant's submissions

As to particular 2. 1, the appellant submits that the attribution of the pregnancy, that is, who was the father of the unborn child, was a critical issue in determining the credibility of ER. If the pregnancy was the result of sexual contact with KR then that is said to weaken the prosecution case on count 5. It would undermine ER's claim that the pregnancy was the result of sexual contact with the appellant and is consistent with his denial of such contact.
The appellant relies on the evidence of ER and KR as to the fact that they commenced a sexual relationship after her 16th birthday but prior to the termination. Reference is also made to KR's evidence that at the time of their first sexual intercourse ER told him she was a virgin and that he saw blood on the sheets.
The appellant submits that in these circumstances the judge's statement to the jury that 'attribution of the pregnancy is not a critical issue in this trial' had the effect of 'underselling' the relevance of the testimony of KR and of 'papering over material cracks' that arose from a comparison of the testimony of KR and that of ER. This is said to create a danger that the jury would disregard a critical factor in the assessment of ER's credibility, thereby resulting in a miscarriage of justice.[50]
[50] Appeal Book 21.
As to particular 2. 2, the appellant submits that the trial judge misstated the evidence when he said that on the accounts of both ER and KR the appellant was involved in signing the papers relating to the termination procedure. This submission essentially relies on an interpretation of the evidence of ER. The appellant's interpretation is that ER was not clear in her evidence that she had gone to the appellant's house to have the papers signed.
As to particular 2. 3, the ground suggests that the trial judge referred to it being understandable that ER had a mistaken belief that the appellant was responsible for her pregnancy based on her poor recollection of the day of the termination procedure. It is not altogether clear what point this particular is seeking to make. The issue was not made clearer by either the written or oral submissions. What seems to be being suggested is that the trial judge was suggesting to the jury that any lack of memory on the part of ER regarding the day of the termination, or a mistake as to who was responsible for the pregnancy, was understandable and did not detract from her evidence as to the alleged offending.

Conviction appeal - ground 2 - respondent's submissions

As to particular 2. 1, the respondent submits that the attribution of the pregnancy was not a critical issue in the trial. It was merely circumstantial evidence capable of supporting ER's claim that the appellant had sexually penetrated her. A finding that the pregnancy was attributable to the appellant was not an essential step in reasoning towards guilt on any of the counts involving ER. Had there been no evidence regarding the pregnancy it would have been open to the jury to convict on the basis of ER's evidence that the acts the subject of the charges occurred. In those circumstances there was no error in the trial judge reminding the jury that the attribution of the pregnancy was not a critical issue in the trial and that the real issue was whether ER's evidence of being sexually abused by the appellant was truthful.[51]
[51] Appeal Book 61.
As to particular 2. 2, the respondent submits that the appellant has taken an excerpt of the cross-examination and omitted clarifying and contextualising questions and answers that are significant to this issue. When regard is had to the entirety of ER's evidence it is apparent that she was referring to two separate events, namely an occasion when she and KR went to Eacott Street and had the papers signed by the appellant and another occasion when she was picked up and went to have the termination procedure. KR's evidence confirmed the existence of these two separate events. Accordingly, the trial judge was correct when he said that both ER and KR had referred to the signing of the papers.
As to particular 2. 3, the respondent submits that the assertion contained in the ground does not accurately reflect what the trial judge said. The remarks in question do not seek to resolve any issues for the jury but merely identify what issues they need to consider, namely whether ER's poor recollection of the day of the termination procedure or any mistake in the attribution of the pregnancy was understandable in the circumstances.

Conviction appeal - ground 2 - the merits

As to particular 2. 1, there was no dispute that ER had become pregnant and had undergone a termination procedure after her 16th birthday. As to when she had become pregnant and who, therefore, could be the father, the only relevant evidence was from ER. She gave evidence that she was pregnant before she turned 16 and before any sexual relationship with KR had commenced. She said she had missed two menstrual periods, a fact which it is likely that only she would know. The evidence of KR as to seeing blood on the sheets following his act of intercourse with ER was not an indicator that ER had not been previously sexually penetrated given the evidence of Dr Kelly. Any belief on the part of KR that he was the father of the child could only be a matter of opinion.
When seen in this light it is apparent that the paternity of the unborn child could only be determined by reference to the evidence of ER. That is to say, in order to find that the appellant was the father the jury would have to be satisfied that ER was a truthful and reliable witness as to the allegations of sexual penetration by the appellant. Paternity was not, as the ground implies, a fact that was capable of being proven independently of ER. Of course, if the jury accepted ER's evidence and were satisfied beyond reasonable doubt that the acts of penetration by the appellant had occurred then the appellant would be guilty of count 5 in any event, without any necessity to go on to make a finding regarding the pregnancy.
The attribution of the pregnancy was not a critical issue in the sense that the jury had to be satisfied beyond reasonable doubt that the appellant was the father of the unborn child. Whoever the father was, that fact could not prove whether an act of sexual penetration by the appellant had or had not occurred. The pregnancy was merely part of the surrounding narrative that was available to the jury to consider in assessing ER's credibility and reliability as a witness. What was critical was that the jury was satisfied beyond reasonable doubt that the alleged sexual acts had occurred. In this regard it was essential that the jury accept the evidence of ER regarding those acts. Accordingly, the relevant direction of the trial judge was not in error, indeed it ensured that the jury remained focussed on the real critical issue.
As to particular 2. 2, the appellant has taken an answer given by ER out of context. In the passage referred to at [44] ER responds to a question about going to Eacott Street to sign papers by saying 'I don't remember going there'. Viewed in isolation this might be seen as a denial that she had ever gone to Eacott Street for that purpose. However, when viewed in context it is apparent that there had been some confusion immediately preceding this question as to whether counsel was referring to the day the papers were signed or the day the termination procedure occurred. It was clarified that counsel was referring to the day of the termination and, thus, what ER appears to be saying is that she does not recall going to Eacott Street on that day.
At other points in her evidence ER accepts that she did go to Eacott Street to have the papers signed, and it is readily apparent that she is talking about a different day to that on which the termination procedure occurred. This is also consistent with the evidence of KR, who refers to the papers being signed about two weeks prior to the procedure. Accordingly, the judge was correct in saying that both witnesses gave evidence that the appellant was involved in signing the papers. In saying this his Honour properly noted, however, that there were inconsistencies in other respects. In any event, the appellant said during the police interview that he had signed the papers at the request of ER, so nothing seems to turn on this issue.
As to particular 2. 3, the relevant part of the summing up is reproduced at [63] above. The effect of what the judge said was to invite the jury to consider ER's evidence as to the termination procedure and any mistaken belief as to who was responsible for the pregnancy having regard to her particular circumstances at that time. Those circumstances were that she was a 16‑year‑old child undergoing a medical procedure that required sedation.
The evidence of ER to which this part of the summing up related was the attribution of the pregnancy, which was not a critical issue for the reasons given in respect of particular 2.2. The judge's comment immediately followed his statement that attribution of the pregnancy was not a critical issue and would have been understood in that context. In any event, the judge, after noting some other evidence, said that it was open to the jury to view this evidence as bearing on the issue of ER's reliability 'in a material way' and that that was 'entirely a matter' for the jury.[52]
[52] ts 394.
The directions of the trial judge in regard to the relevance of ER's evidence concerning her pregnancy as it related to count 5 and her credibility in general did not misstate the evidence or mislead the jury as to the significance of the evidence. A miscarriage of justice in this respect has no prospect of being established. There is no reasonable prospect of ground 2 succeeding and leave in respect of it should be refused.

Conviction appeal - ground 3 - appellant's submissions

The appellant submits that the evidence of KR that ER told him she was a virgin was in conflict with her evidence that she did not say this and that she had fallen pregnant as a result of being sexually penetrated by the appellant prior to commencing a sexual relationship with KR. In those circumstances it was productive of a miscarriage of justice for the judge to tell the jury that they 'they may not be troubled' by KR's evidence as to being told by ER that she was a virgin and to say that the evidence of KR was not necessarily inconsistent with that of ER.
In written submissions the appellant also relies on a statement made by the prosecutor in closing address that ER was clear in her evidence that she fell pregnant before her 15th birthday. This misstatement of the evidence is said to have 'inadvertently undermined' the evidence of KR because it made it appear that the gap between falling pregnant and having sex for the first time with KR was greater than it was. It is submitted that the error was 'reinforced' by the judge when telling the jury that there were no significant inconsistencies between the evidence of ER and KR.[53]
[53] Appeal Book 23 - 24.

Conviction appeal - ground 3 - respondent's submissions

The respondent submits that the appellant has misconstrued the effect of the judge's comments. In particular, the use of the qualifier 'necessarily' meant that conflict between KR and ER on issues that were peripheral to the offending did not automatically result in a finding that the offences did not occur. The effect was to ensure that the jury focussed on the question of whether ER's evidence as to the offences could be accepted even if there were some differences between her evidence and that of KR.[54]
[54] Appeal Book 64.
As regards the error by the prosecutor in closing address, the respondent says that this was either a mis-transcription or a slip by the prosecutor which has to be seen in the light of the fact that immediately prior to the impugned reference the prosecutor correctly referred to ER falling pregnant 'just before her 16th birthday'. Further, the prosecutor referred to ER meeting KR at a time when she had missed one or two periods, putting the pregnancy immediately prior to her 16th birthday. In the circumstances any misstatement by the prosecutor is not one that would have resulted in the jury misunderstanding the evidence in the manner suggested by the appellant.

Conviction appeal - ground 3 - the merits

The relevant part of the summing up is reproduced at [64] above. The judge refers to a number of aspects of the evidence of KR and ER that are possibly inconsistent, none of which relate directly to her allegations against the appellant. As such they are matters that are relevant to an assessment of ER's credibility but are not conclusive in themselves as to whether the offences occurred. Whilst his Honour suggests that some of the matters, such as whether or not ER told KR she was a virgin, may have less significance, he specifically leaves any such assessment for the jury.
The effect of his Honour's comments was to instruct the jury that an apparent conflict in the versions of events provided by ER and KR on issues that were peripheral to the offending did not automatically result in the finding that the offences themselves did not occur. The jury were required to consider whether the differences in the accounts were such that ER's evidence could not be accepted. His Honour's comments were without error and did not occasion a miscarriage of justice.
As to the error by the prosecutor in closing address, at the appeal hearing the court was informed that the audio recording had been listened to and there was not a transcription error.[55] Nonetheless, this was clearly an inadvertent slip on the part of the prosecutor. It was not consistent with the evidence given by ER. Furthermore, at other points in the prosecutor's closing address he correctly referred to ER falling pregnant just before her 16th birthday. The error was not repeated and did not affect the summary of the evidence given to the jury by the trial judge in his summing up. This was not a mistake that could have resulted in the jury misunderstanding the evidence.
[55] appeal ts 36.
The directions of the trial judge as to the significance of inconsistencies between the evidence of ER and that of KR did not mislead the jury. A miscarriage of justice in this respect has no reasonable prospect of succeeding and leave to appeal on ground 3 should be refused.

Conviction appeal - ground 4 - appellant's submissions

The appellant submits that when the trial judge was summarising the evidence of BT he made a comment that unfairly undermined that evidence. The comment in question followed immediately after a reference to BT's evidence about his grandmother. His Honour noted that BT had described his grandmother as energetic and as a person who would not tolerate 'mucking around'. He then said 'That would be an interesting observation if it were made as a five to nine‑year‑old, which is the age he said he was when they were at Eacott Street. That's a matter for you.' The full passage is reproduced at [64] above.
The appellant says the evidence of BT in regard to his grandmother was relevant to the issue of whether ER went to stay with the appellant when she was a child because it would support a conclusion that the grandmother was a capable person who 'wouldn't need to seek respite in that way'.[56] The implication is that this may reflect on ER's evidence that she did stay with the appellant during school holidays. The appellant submits that the comment by the trial judge was prone to cast doubt on the ability of BT to give the evidence regarding his grandmother.
[56] appeal ts 37.

Conviction appeal - ground 4 - respondent's submissions

The respondent submits that the comment by the trial judge related purely to BT's observation regarding his grandmother's ability to handle children and would not have been understood by the jury to apply to BT's evidence generally. The remark did not unfairly undermine the evidence of BT, but merely reminded the jury of the need to assess the credibility and reliability of evidence by reference to factors such as the age of the witness, their life experience and the opportunity they would have to make such observations. The trial judge's comment did not seek to resolve the question of the reliability of BT on any issue or persuade the jury to a particular view. The comment was reasonable and did not occasion a miscarriage of justice.

Conviction appeal - ground 4 - the merits

The approach to grounds of appeal based upon comments of a trial judge that are said to be unfair is set out in McKell v The Queen.[57] That approach was recently summarised by this court in Chong v The Queen:[58]
McKell recognises that the risk of unfairness to either side involved in a judicial comment about how a disputed question of fact should be resolved is such that trial judges should not court the risk. However, when a trial judge does make a comment about a disputed question of fact, the question for this court is whether the risk has materialised. That risk may materialise if it is concluded that, considered as a whole, the summing up is unfair by its lack of balance, or fails to discharge the obligation to accurately and fairly put the case for the accused.
As the appellant's counsel properly accepted, the test posited in McKell is not simply whether there is a substantial risk that the jury might be persuaded of the appellant's guilt by a comment in favour of the prosecution case. The plurality in McKell saw the force in the observation that one unfortunate remark in a long and detailed summing up does not, at least necessarily, give rise to a miscarriage of justice. It remains necessary to read the trial judge's summing up as a whole. Further, the decision in McKell must be understood in the context where the court was concerned with a summing up 'the content and tone of which … would not have been out of place in a powerful address by counsel for the prosecution' The conclusion reached was that the summing up in McKell was 'so unfair in its lack of balance that a miscarriage of justice occurred'. The existence of a substantial risk that a jury might actually be persuaded by a judge's comments was posited, not as a stand-alone test, but as an answer to the submission that a miscarriage was not established as the jury could not be shown to necessarily have failed to independently consider the evidence. As Gageler J summarised the plurality's position in McKell with which he agreed:
[T]he tone and content of the trial judge's comments on summing up so much favoured the prosecution as to have given rise to a substantial risk of those comments having persuaded the jury of the appellant's guilt.
In the present case the disputed question of fact to which the comment relates is whether ER had reason to stay at the appellant's house during school holidays when she was a child. The evidence of BT that his grandmother was a capable person had no real significance to that issue. Firstly, it was the mere impression or opinion of a young child recalled many years later in the most general of terms. Secondly, there was no necessary inconsistency between the grandmother being a capable parent and ER being sent to her brother's house on school holidays; even the most capable of parents may need respite on occasions. Thirdly, there was undisputed evidence that the grandmother had been abandoned by her husband and left to raise the younger of her nine children as a single parent. In these circumstances, however capable she was, there would be nothing unusual about ER being sent to spend school holidays with her older brother.
[57] McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307.
[58] Chong v The Queen [2020] WASCA 143 at [133] - [134] (footnotes omitted).
Even if the evidence of BT had some small degree of relevance, the likely effect of the trial judge's comment has to be assessed in the context of the whole of the summing up. Whilst generally it is inadvisable for trial judges to make comments suggesting that a witness should not be believed, this comment did not extend that far. The comment may have had a negative implication, but only because it drew attention to the unlikelihood that a young child would draw a conclusion as to the capability of his grandmother as a parent. Furthermore, it was clearly identified as being a comment that the jury were at liberty to accept or reject as they saw fit. There is no reasonable possibility that this comment would have influenced the jury unfairly.
As to the context of the comment in the summing up as a whole, this is not a case where the directions had the effect of dismantling the defence case or took the form of a second prosecution address to the jury. His Honour, more than once, directed the jury that the fact-finding role was theirs. He told them that submissions by counsel and comments by him could be ignored and did not detract, or derogate, from the jury's right and responsibility to find the facts. The directions as a whole were balanced and fair in both their tone and content.
When considering the nature of the evidence and its significance, the nature of the comment, the possible effect of the comment and the context of the summing up as a whole, there is no risk that the impugned comment could have given rise to a miscarriage of justice. There is no reasonable prospect of ground 4 succeeding and leave in respect of it should be refused.

Conviction appeal - ground 5 - appellant's submissions

Ground 5 relates to the ruling made by the trial judge that questions put to ER regarding whether she had sexually offended against BT when he was a child were only relevant to her credit. The effect of this ruling was that the appellant had to accept the answers ER gave to those questions and was not permitted to lead evidence from BT to prove that any such molestation had in fact occurred. The appellant submits that the ruling was wrong because the questions were not confined to the issue of ER's credibility but went to the issue of whether she had a motive to make false allegations about the appellant.
The appellant says that questions regarding the motive of a witness to make false allegations are questions that relate to whether the witness is biased or has an interest in the proceedings. This is a recognised exception to the collateral evidence rule. The motive here was said to be a desire to make a pre-emptive strike. In those circumstances the appellant should have been permitted to call evidence from BT substantiating the allegation of offending against him by ER. The refusal to permit this to be done was, the appellant submits, an error of law.[59]
[59] Appellant's submissions in support of additional ground of appeal dated 18 October 2021.

At the commencement of the trial the prosecution sought to adduce evidence from DCP records as business records pursuant to s 79C of the Evidence Act 1906 (WA). Those records related to an investigation conducted in 1992 regarding MM. The makers of the records, two DCP officers, were deceased by the time of trial.
The prosecution sought to rely on four documents. The first was a Child Protection Duty Intake Form dated 12 January 1992. It details that notification of an incident had been received in regard to MM.[69] A second details of notification form contains handwritten notes recording that first contact with the family of the appellant had occurred on 26 August 1992. The note refers to both parents having given MM a book on sex at the age of 10 years and that 'father says that sexual acts were instigated by [MM] who wanted to try them out' and 'father has acknowledge [sic] the abuse and believes the acts to have been at [MM's] instigation'.[70]
[69] Combined Blue and Green Appeal Book 39 - 40.
[70] Combined Blue and Green Appeal Book 51.
In a third document headed 'Assessment Feedback' dated 4 September 1992 there is reference to an officer having seen the appellant and his wife while another officer spoke to MM. They are described as being 'all very closed off' and it being difficult to make any impact. The appellant is noted as having admitted to having oral sex with MM when she was between 10 and 14. The note states that although the appellant accepted responsibility the author 'found it difficult to believe that he really thinks he is responsible'. The appellant's wife was also noted as being ready to relieve the appellant of his responsibility. When questioned about the suitability of MM having a book on sex, both the appellant and his wife claimed that she was advanced for her age and did not think that the appellant's abuse was a reason for her being so advanced.[71]
[71] Combined Blue and Green Appeal Book 56.
In a fourth document dated 8 March 1993 there is a note that the appellant maintained that MM wanted to know about sexual things and so he showed her. When asked if a 10-year-old really knew what she was asking, the appellant informed the officer that she had been given a book on sex and wanted to experiment. He admitted he may have done the wrong thing, however in the officer's view the appellant was still blaming MM.[72]
[72] Combined Blue and Green Appeal Book 43.
After hearing argument, the judge excluded the document in the exercise of his discretion because the probative value of the evidence was outweighed by the possibility that it would create undue prejudice, confuse the issues or would mislead the jury (see s 79C(6) of the Evidence Act). In coming to this conclusion, his Honour referred to the documents not being clear as to which particular allegations were put to the appellant, there being uncertainty as to who the author of the relevant notes was, it not being clear what the context of the conversations recorded in the notes was and there being no accurate record of what was put to the appellant and what precisely he said in response. His Honour considered that the records involved an element of interpretation on the part of the person who prepared them of what the appellant had said at the time. He noted that the defence had no means available to it, in the absence of anyone from the Department who was privy to the conversations, of testing the reliability or accuracy of what was recorded.[73]
[73] ts 60 - 61.

Sentence appeal - ground 1 - appellant's submissions

The appellant submits that his Honour made a specific error by relying on the DCP notes in circumstances where they were unreliable and in using those notes to conclude that the appellant was 'remorseless'.[74] It was suggested that this word in context meant relentless and was, in effect, the finding of an additional aggravating factor.
[74] Appeal Book 82; ts 418.
The appellant says that since aggravating factors must be proven beyond reasonable doubt and the DCP notes were unreliable, there was no proper basis for a finding that the appellant was relentless in his offending against MM.

Sentence appeal - ground 1 - respondent's submissions

The respondent submits that the reference to 'remorseless' should be understood as lacking in remorse for past conduct. It is well‑established that remorse is a mitigating factor which the appellant bears the onus of proving. In the present case the appellant did not submit that he was remorseful for his offending and did not seek to rely on remorse as a mitigating factor. In these circumstances the judge's finding that the appellant was without remorse was well founded.
The respondent further submits that the decision to exclude the DCP materials from the trial was on a discretionary basis due to a perceptible risk that they could be misused by the jury. That decision did not amount to a finding that the materials were inherently unreliable. It was open to the judge to have regard to the DCP materials in sentencing in circumstances where there was no perceptible risk that he would misuse them in the same way that a jury might.[75]
[75] Appeal Book 107 - 108.

Sentence appeal - ground 1 - the merits

Section 15 of the Sentencing Act 1995 (WA) allows a court sentencing an offender to inform itself in any way it thinks fit. This discretionary power must be exercised in a manner that is consistent with and does not prejudice or detract from the integrity of the judicial process and in accordance with the rules of procedural fairness.[76] It was open in these circumstances for his Honour to rely on material other than that admitted in evidence at the trial. However, in circumstances where the reason for not admitting the DCP records was that they could not be relied upon as being an accurate and reliable source of admissions made by the appellant, it is difficult to see how they could be properly used in the context of sentencing.
[76] Suleiman v The State of Western Australia [2017] WASCA 26 [37] - [49].
That being said, the use of the DCP materials was of no material significance in this sentencing process. The word 'remorseless' can mean either 'unable to feel remorse; characterized by a lack of remorse; pitiless, cruel; unrepentant' or 'relentless, unremitting; incessant'.[77] The context in which the judge used the word is more consistent with the first meaning. That is because by the time of the DCP interviews all of the offending was in the past. The admissions attributed to the appellant were indicative of a lack of regret, not of an intention to persist in the conduct. A finding that the appellant was without remorse did not depend on the DCP materials and was inevitable.
[77] Oxford English Dictionary (2021).
In any event, whatever meaning is ascribed to the word 'remorseless' the DCP materials could not have altered the findings. It was apparent from the findings of fact made by the trial judge, none of which were challenged on the appeal, that the offending was remorseless in the sense of being relentless at the time it was being committed. Furthermore, it was not open to dispute that the appellant had never displayed any remorse for past offending at any time. Counsel for the appellant accepted at the hearing that the DCP materials were not material to the making of such findings.
This ground of appeal has no reasonable prospect of success. Leave in respect of ground 1 should be refused.

Sentence appeal - ground 2 - appellant's submissions

The appellant submits that total sentences imposed in comparable cases were 'considerably less' than the total term imposed on him. In this regard the appellant refers to EXF v The State of Western Australia;[78] GHK v The State of Western Australia;[79] GHS v The State of Western Australia[80] and ERA v The State of Western Australia.[81]
[78] EXF v The State of Western Australia [2015] WASCA 118.
[79] GHK v The State of Western Australia [2014] WASCA 19.
[80] GHS v The State of Western Australia [2006] WASCA 42.
[81] ERA v The State of Western Australia [2013] WASCA 163.
The appellant also submits that in cases where advanced age was a factor the outcome was a total effective sentence that was less than his. In this regard the appellant refers to AIM v The State of Western Australia;[82] Hughes v The State of Western Australia;[83] FGC v The State of Western Australia;[84] Mills v The State of Western Australia [No 2];[85] RNN v The State of Western Australia;[86] The State of Western Australia v FJG;[87] and UGN v The State of Western Australia.[88]
[82] AIM v The State of Western Australia [2014] WASCA 155.
[83] Hughes v The State of Western Australia [2014] WASCA 78.
[84] FGC v The State of Western Australia [2008] WASCA 47.
[85] Mills vThe State of Western Australia [No 2] [2017] WASCA 52.
[86] RNN v The State of Western Australia [2010] WASCA 26.
[87] The State of Western Australia v FJG [2012] WASCA 206.
[88] UGN v The State of Western Australia [2021] WASCA 10.

Sentence appeal - ground 2 - respondent's submissions

The respondent submits that the offences were representative of a prolonged course of sexual conduct perpetrated against two child victims. The profound effects to be expected as a result of such offending had been manifested in the case of both ER and MM. Taking into account these factors, and the others referred to by the trial judge, the sentence imposed was proportionate to the seriousness of the offending. Neither the comparable cases nor the appellant's age demonstrate that the total sentence is unreasonable or plainly unjust.
The respondent notes that there is no established tariff for sexual offences involving children because the range of circumstances of offending and offenders is infinitely variable. For this reason, total sentences imposed in other cases can provide only very limited guidance. The respondent notes that sentencing standards for serious cases of child sexual abuse were recently reviewed by this court in MHE v The State of Western Australia;[89] JJR v The State of Western Australia[90] and The State of Western Australia v AHD.[91] The total sentence imposed on the appellant is broadly consistent with sentences imposed in those cases.
[89] MHE v The State of Western Australia [2019] WASCA 133.
[90] JJR v The State of Western Australia [2018] WASCA 51.
[91] The State of Western Australia v AHD [2021] WASCA 13.
In other cases total effective sentences ranging from 12 years to 14 years and 6 months have been imposed: GHS v The State Western Australia; GMS v The State of Western Australia;[92] KMB v The State of Western Australia;[93] SWD v The State of Western Australia;[94] CJF v The State of Western Australia;[95] ERA v The State of Western Australia; SG v The State of Western Australia;[96] GHK v The State of Western Australia and LYN v The State of Western Australia.[97] In the respondent's submission these cases demonstrate that the sentence imposed on the appellant was proportionate to his offending when viewed in its entirety.
[92] GMS v The State of Western Australia [2009] WASCA 107.
[93] KMB v The State of Western Australia [2010] WASCA 212.
[94] SWD v The State of Western Australia [2012] WASCA 76.
[95] CJF v The State of Western Australia [2012] WASCA 69.
[96] SG v The State of Western Australia [2013] WASCA 236.
[97] LYN v The State of Western Australia [2019] WASCA 45.
The respondent submits that the cases referred to by the appellant do not demonstrate that the total sentence was unreasonable or plainly unjust. In particular, the seriousness of some of those cases was not truly comparable with that of the appellant. Further, in some of the cases relied on by the appellant the offender had pleaded guilty, a significant mitigating factor not present in the appellant's case.[98]
[98] Appeal Book 113 - 115.
As to the second limb of the totality principle, the respondent submits that it is unusual for a sentence to be reduced for this reason even where the offender is of advanced age. As an example the respondent refers to FGC, in which an 81‑year‑old offender who was sentenced to a total sentence of 6 years imprisonment was unsuccessful in seeking to invoke the second limb of the totality principle.[99]
[99] Appeal Book 116.

Sentence appeal - ground 2 - the merits

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety having regard to all relevant facts and circumstances, including those referrable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[100] The second limb is that the court should not impose a sentence that is 'crushing' in that it removes any reasonable expectation of a useful life after release unless it is necessary to do so because the sentence would otherwise be inappropriate.
[100] Roffey v The State of Western Australia [2007] WASCA 246 [24].
The primary sentencing considerations for sexual offences against children are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. For this reason, matters personal to such an offender are of less weight than might otherwise be the case. The fact that an offender is otherwise of good character carries little weight because the offences are of a kind that until revealed generally do not impact on other people or upon their perception of the offender.[101]
[101] The State of Western Australia v PJW [2015] WASCA 113 [34] - [35]; WRT v The State of Western Australia [2020] WASCA 68 [65] - [66].
In the case of prolonged sexual offending against a child, the whole of the victim's childhood and potential for normal development is taken from him or her. The increased likelihood of significant and enduring harm that comes with repetitive and prolonged sexual abuse against a child is one of the reasons that at least some accumulation of sentences for the individual offences is to be expected.
In the present case the appellant was convicted of several offences of indecent dealing with a child under 14 years of age under the now repealed s 183 of the Criminal Code. This type of offending attracted a lesser maximum penalty than would be the case under current provisions. Although it is not relevant to take into account that similar offences committed today would be the subject of higher maximum penalties, it is appropriate to take into account contemporary understanding of the seriousness of such conduct.[102] His Honour properly noted that many of the appellant's acts would, by contemporary standards, be regarded as sexual penetrations or attempted sexual penetrations and were therefore very serious examples of indecent dealing.
[102] EXF v The State of Western Australia [69].
Some accumulation in the individual sentences imposed was necessary to reflect not only the different types of offending against each complainant but also to reflect that there were two complainants who had been subjected to offending conduct over different and comparatively lengthy periods of time.
The offences against each complainant were representative of a prolonged course of sexual abuse perpetrated by the appellant against each of them. Over a sustained period the appellant regularly abused each child and established a pattern of abuse that became normalised. The victim impact statements of ER and MM indicate the serious long‑term effect that the offending has had. They both referred to significant and ongoing psychological harm.
The appellant groomed each of the complainants and engaged in sexual offending of increasing severity culminating in sexual penetration. In the case of ER this involved unprotected penile/vaginal penetration which resulted in ER falling pregnant at the age of 15 and undergoing a termination procedure at the age of 16. The appellant assisted by providing consent for the procedure, thus avoiding ER's mother finding out about the pregnancy. This court has on numerous occasions recognised the aggravating effect of offending that results in a child complainant becoming pregnant. The fact that ER became pregnant is a significant aggravating feature of the appellant's offending against her.
In the case of MM the acts of sexual penetration included fellatio and cunnilingus. The appellant attempted digital and penile/vaginal penetration and when that was unsuccessful nonetheless rubbed his penis against MM's vagina until he ejaculated over her, a feature of those offences that was particularly humiliating and degrading for MM.
In SCN v The State of Western Australia,[103] this court held that in assessing the seriousness of a course of conduct involving child sexual offences a number of factors must be taken into account. These include the number of victims, the number and type of offences, the period of time over which the offending continued, the age and vulnerability of the victims and the relationship between the offender and the victims including the extent of any breach of trust. Consideration of these factors in the present case indicates that the appellant's offending involved a high level of criminality, particularly when regard is had to ER's pregnancy.
[103] SCN v The State of Western Australia [2017] WASCA 138.
The customary sentencing standards for serious cases of child sexual abuse were recently reviewed by this court in MHE v The State of Western Australia; JJR v The State of Western Australia and The State of Western Australia v AHD. Other relevant cases are GHS v The State Western Australia; GMS v The State of Western Australia; KMB v The State of Western Australia; SWD v The State of Western Australia; CJF v The State of Western Australia; ERA v The State of Western Australia; SG v The State of Western Australia; GHK v The State of Western Australia and LYN v The State of Western Australia. Having regard to the flexible guidance afforded by customary sentencing standards and making proper adjustment for factors such as the applicable maximum penalties, pleas of guilty, multiple complainants, offending that causes pregnancy, the age of the complainants, the time of the offending and the period of time which the offending spans, the total sentence imposed on the appellant is broadly consistent with the sentences imposed in those cases.
The appellant has sought to rely on a small number of cases to support his argument that the total sentence was unjust and, in doing so, failed to take into account relevant differences. In particular, ERA involved conduct that was more serious than the offending in the present case which was properly reflected in the total effective sentence of 16 years' imprisonment imposed in that case. In EXF and GHK, convictions were entered following pleas of guilty. Further, the offending in EXF whilst serious did not involve any instances of penile/vaginal penetration. None of the cases cited by the appellant involved the offender impregnating the complainant. GHS involved a single complainant. When regard is had to these points of distinction the cases cited by the appellant do not establish the existence of implied error.
It is well-established that a breach of the first limb of the totality principle cannot be made out by pointing to a small number of cases which are said to be comparable to the case at hand and in which lesser sentences were imposed. Nor can it be made out by pointing to a small number of cases which are said to be more serious but in respect of which a similar sentence was imposed. Rather, the question of whether a total effective sentence is proportionate to the total criminality involved must be assessed by reference to the standards of sentence customarily imposed for conduct of the kind committed, ascertained from the range and spread of previously decided cases.[104]
[104] LFG v The State of Western Australia [2015] WASCA 88 [231].

As to the second limb of the totality principle, whether leniency is to be extended to an offender on account of advanced age depends significantly on the circumstances of the case. Age is only one factor in the sentencing process. Advanced age, in and of itself, can never be a justification for an unacceptably inappropriate sentence. Put another way, age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can be allowed to go free merely because of advanced years. The punishment must be fairly proportionate to the crime.[105]
[105] Gulyas v The State of Western Australia [2007] WASCA 263 [35].
The second limb of the totality principle is not an absolute principle. There are cases in which the offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time which would permit them to enjoy the life left to them.
As a matter of fact it is unusual for a total sentence to be reduced because it infringes the second limb of the totality principle. Even in circumstances where an offender is of advanced age that fact alone does not necessarily demand a reduction in sentence. For example, in FGC it was accepted that the offender was of advanced age and that he suffered from a variety of common medical conditions, but there was no evidence supporting the proposition that he suffered from such conditions to any significant degree or that age or health issues would cause additional hardship in prison compared to other offenders. In those circumstances the second limb of the totality principle was not infringed by the total effective sentence imposed in that case.
As in FGC, the present case is not one where the appellant's age or any illness are such as to render his imprisonment more onerous than in the ordinary case. This appeal may therefore be distinguished from those such as Stubley v The State of Western Australia[106] and Hughes v The State of Western Australia. Whilst there was evidence that the appellant takes medication for a heart condition and high blood pressure, this is not an unusual or unexpected medical condition for someone of his age and is not such as to warrant a greater degree of leniency.
[106] Stubley v The State of Western Australia [2010] WASCA 36.
What weighed against the appellant's age and other mitigatory factors was the need to impose a sentence that reflected the seriousness of his offending and gave effect to the sentencing objective of general deterrence. As Mazza JA observed in The State of Western Australia v FJG:[107]
It is not uncommon in cases of serious intra-familial sexual offending for it to remain a secret for a long time. Often the offenders have gone on with their lives in a way which has not adversely affected them. Frequently for the victims, the story is altogether different. Those who offend in this way must realise that their wrongdoing can lead to long terms of imprisonment even when they are old and believe that what was in the past will stay there.
[107] The State of Western Australia v FJG [71].
The appellant perpetrated a serious and prolonged course of intra-familial sexual offending against ER and MM when each was a small child. In each case the offending persisted for a number of years. The offending against ER was separate in time from the offending against MM. The appellant groomed the complainants and engaged in offending of an increasingly serious nature. In the case of ER, the offending involved representative counts of penile/vaginal penetration and only ceased after ER became pregnant. ER was required to have a termination procedure as a 16-year-old girl and has suffered ongoing significant psychological effects as a result of the offending. In the case of MM, the offending involved representative counts of fellatio and cunnilingus, as well as attempted digital and penile penetration. In some instances the offending was accompanied by the degrading act of the appellant ejaculating over MM's vagina. Like ER, MM suffered ongoing psychological trauma as a result of the offending. Neither of the complainants received support from their extended family when they eventually came forward with their complaints against the appellant. In contrast, the appellant has enjoyed continuing support from family members to the detriment of the complainants. The appellant took advantage of ER and MM's vulnerabilities and offended against them in a gross breach of the trust reposed in him. In circumstances where the seriousness of the offending and the need to protect vulnerable children meant that little weight could be given to his personal circumstances, there was little or no mitigation available to the appellant.
The total effective sentence imposed upon the appellant is proportionate to the seriousness of the offending. Neither the appellant's age nor the sentences imposed in broadly comparable cases demonstrates that the sentence is unreasonable or plainly unjust. The appellant has failed to establish a breach of either limb of the totality principle. Whilst we would grant leave to appeal in respect of ground 2, it has not been made out.

Conclusion

Neither the appeal against conviction nor the appeal against sentence has been established. We would make the following orders:
On CACR 180 of 2020:
1.Leave to appeal refused.
2.Appeal dismissed.
On CACR 181 of 2020:
1.Leave to appeal on ground 1 refused.
2.Leave to appeal on ground 2 granted.
3.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
30 DECEMBER 2021