KSN v The State of Western Australia - [2017] WASCA 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KSN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 156

CORAM: BUSS P
MAZZA JA
HALL J

HEARD: 22 MAY 2017

DELIVERED : 18 AUGUST 2017

FILE NO/S: CACR 46 of 2017
CACR 47 of 2017

BETWEEN: KSN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BIRMINGHAM DCJ
File No  :IND 82 of 2016

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of numerous counts of sex offending against a child - Longman warning - Recent complaint direction

Criminal law - Appeal against sentence - Sex offending against one child - Total effective sentence of 12 years' imprisonment - First limb of the totality principle

Legislation:

Criminal Code (WA), s 329(2), s 329(4), s 329(9), s 329(10)

Result:

Leave to appeal against conviction refused
Appeal against conviction dismissed
Leave to appeal against sentence refused
Appeal against sentence dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

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

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

ARK v The State of Western Australia [2014] WASCA 45
BW v The State of Western Australia [2013] WASCA 212
CJF v The State of Western Australia [2012] WASCA 69
Downie v The State of Western Australia [2013] WASCA 244
ERA v The State of Western Australia [2013] WASCA 163
EXF v The State of Western Australia [2015] WASCA 118
FJL v The State of Western Australia [2010] WASCA 8
FWB v The State of Western Australia [2016] WASCA 118
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Giglia v The State of Western Australia [2010] WASCA 9
GMS v The State of Western Australia [2009] WASCA 107
JDF v The State of Western Australia [2016] WASCA 221
Juma v The State of Western Australia [2011] WASCA 54
Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460
KMB v The State of Western Australia [2010] WASCA 212
KND v The State of Western Australia [2017] WASCA 36
Lewsam v The State of Western Australia [2016] WASCA 60
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
LJH v The State of Western Australia [2016] WASCA 155
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The State of Western Australia [2006] WASCA 256
MMC v The State of Western Australia [2012] WASCA 187
MPD v The State of Western Australia [2008] WASCA 57
NHT v The State of Western Australia [2016] WASCA 167
PP v The State of Western Australia [2004] WASCA 144
R v Bertrand [2008] VSCA 182; (2008) 20 VR 222
R v Freeman [1980] VR 1
R v W [1995] QCA 49; [1996] 1 Qd R 573
RFS v The State of Western Australia [2012] WASCA 58
RGT v The State of Western Australia [2017] WASCA 120
RJH v The State of Western Australia [2012] WASCA 137
RMD v The State of Western Australia [2017] WASCA 70
Roffey v The State of Western Australia [2007] WASCA 246
Rogers v The Queen [2004] WASCA 147
Rowan v The State of Western Australia [2009] WASCA 185
SGT v The State of Western Australia [2017] WASCA 136
SPD v The State of Western Australia [2012] WASCA 136
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Prince [2011] WASCA 22
Truscott v The State of Western Australia [2007] WASCA 62
Woods v The Queen (1994) 14 WAR 341

BUSS P: The appellant has applied for leave to appeal against conviction and sentence.
He was charged on indictment with 20 counts of sexual offending against his de facto daughter. He pleaded not guilty.
On 4 October 2015, after a trial in the District Court before Birmingham DCJ and a jury, the appellant was convicted of:
(a)six counts of sexual penetration of a child, who he then knew to be his de facto child and who was under the age of 16 years, contrary to s 329(2) of the Criminal Code (WA) (the Code), being counts 2, 3, 5, 6, 7 and 8;
(b)eight counts of sexual penetration of a child, who he then knew to be his de facto child, contrary to s 329(2) of the Code, being counts 10, 11, 13, 14, 15, 16, 17 and 18; and
(c)one count of indecently dealing with a child, who he then knew to be his de facto child, contrary to s 329(4) of the Code, being count 20.
The appellant was acquitted of counts 1, 4, 9 and 12. Count 19 was not left to the jury.
The trial judge imposed individual terms of immediate imprisonment as follows:
(a)count 2 (digital/vaginal penetration):      4 years;
(b)count 3 (penile/oral penetration):            5 years;
(c)count 5 (digital/vaginal penetration):      4 years;
(d)count 6 (digital/vaginal penetration):      4 years;
(e)count 7 (penile/oral penetration):            5 years;
(f)count 8 (cunnilingus):   5 years;
(g)count 10 (penile/vaginal penetration):      4 years;
(h)count 11 (penile/vaginal penetration):      4 years;
(i)count 13 (penile/vaginal penetration):      4 years;
(j)count 14 (penile/anal penetration):          5 years;
(k)count 15 (digital/vaginal penetration):     4 years;
(l)count 16 (penile/vaginal penetration):      4 years;
(m)count 17 (penile/vaginal penetration):      4 years;
(n)count 18 (penile/oral penetration):           5 years; and
(o)count 20 (touching breasts):  1 year 6 months.
His Honour ordered that the individual sentences for counts 2, 6 and 13 be served cumulatively upon each other and that all other individual sentences be served concurrently with each other and with the accumulated sentences. The total effective sentence was 12 years' imprisonment backdated to 4 October 2016. A parole eligibility order was made.
I would refuse leave to appeal. Both the appeal against conviction and the appeal against sentence should be dismissed.

A brief overview of the facts and circumstances of the offending

The appellant was born in 1983. The complainant was born in 1998.
In 2007, when he was aged 24, the appellant formed a relationship with the complainant's mother. The mother had five children (including the complainant) from a previous relationship.
The offending began between 3 September 2010 and 5 April 2011 when the complainant was aged 12 (although she alleged that the appellant had sexually interfered with her before that time). The offending continued until 6 February 2015.
The appellant was a truck driver. Most of the offences were committed when the complainant was with the appellant in his truck.
The appellant sexually penetrated the complainant's vagina with his fingers on four occasions, twice while she was under the age of 16. He sexually penetrated the complainant's mouth with his penis on three occasions, twice while she was under the age of 16. He sexually penetrated the complainant's vagina with his penis on five occasions. He performed cunnilingus on the complainant once. He sexually penetrated the complainant's anus with his penis once. He indecently dealt with the complainant by touching her breasts once.
Counts 2 and 3 occurred on the same unknown date between 3 September 2010 and 5 April 2011. Count 5 occurred on an unknown date between 1 January 2011 and 1 January 2012. Counts 6, 7 and 8 occurred on the same unknown date between 26 April 2011 and 22 November 2013. Count 10 occurred on an unknown date between 1 January 2015 and 5 January 2015. Count 11 occurred on another unknown date between 1 January 2015 and 5 January 2015. Counts 13 and 14 occurred on 5 January 2015. Counts 15 and 16 occurred on 6 January 2015. Counts 17, 18 and 20 occurred on 6 February 2015.

The appellant's defence at the trial

The appellant's defence was that none of the alleged offending had occurred. He gave sworn evidence to that effect at the trial.

Conviction appeal: grounds of appeal

The appellant relies on two grounds in his conviction appeal.
Ground 1 alleges that the trial judge erred in law by failing to give the jury 'an adequate Longman warning' in relation to counts 2 ‑ 8. A particular of the ground asserts in essence that the material part of the warning was expressed merely as a comment to the jury.
Ground 2 alleges that his Honour erred by failing 'to clearly direct the jury' as to the counts to which the evidence of recent complaint applied. The particulars to the ground assert that the evidence of recent complaint related only to counts 10 ‑ 20 and his Honour should have told the jury that the evidence was not relevant to counts 1 ‑ 9.

Conviction appeal: ground 1: the trial judge's directions

Shortly after beginning his summing up, the trial judge directed the jury that:
(a)his Honour's task was to ensure that the trial was conducted according to law and to direct the jury on the applicable law;
(b)the jury must accept the law as directed by his Honour and must apply all of his Honour's directions on matters of law; and
(c)the jury's task was to determine the facts of the case based on the evidence the jury had heard in the court (ts 352).
Later, his Honour reminded the jury that they were bound by his directions as to the law. His Honour then said:
Now, I … wish to give you some special directions in relation to the way in which you should consider the evidence in this case and the way in which you might apply the evidence (ts 374).
The trial judge proceeded to give the jury directions of law including a Longman warning and directions in relation to recent complaint.
His Honour's Longman warning and related directions were as follows:
I turn now to the final warning and it's an important warning that I give you in relation to this case, most particularly in relation to … the early counts, particularly those that occurred between 2008 and 2011 or [2012] at [E], which make up counts 1 to 5 on the indictment.
And to a lesser extent in relation to counts 6, 7 and 8 but clearly it's the earlier accounts that I wish to give you a specific direction about. And it's an important direction.
[This] concerns the manner in which you approach the evidence of the complainant, in respect of those events that are alleged to have occurred some time ago.
The direction's particularly important in respect of those counts in the indictment that are alleged to have occurred prior to 2012, that's counts 1 to 5 on the indictment.
The offence at [M] in July 2008/9, [at K] 2010 to April 2011 and at [E] during 2011. There were the events in [K] when [the complainant] was then in year 9, but it was 2013.
But I'm [asking] you to principally focus on the much earlier incidents, because of the risks that are associated with dealing with evidence on aged complaints.
These are matters where there [has] been a significant passage of time, between the events alleged and then referred to the police by way of complaint.
The complainant is the only witness as to the … incident[s] alleged. The State has asked you to accept the complainant as a witness of truth and whilst there are other items of evidence as to opportunity, occasion, place and circumstance, [the complainant] is the only witness able to give evidence of the events that occurred at that time.
Therefore the position is that you must be satisfied beyond reasonable doubt about the truth and accuracy of her evidence before you could convict [the appellant] on any of the charges he faces. You must scrutinise her evidence with special care.
You should take carefully into account that the earliest of these events charged is alleged to have occurred in July 2008 when she was then 10. The matters were not raised with the police until early February 2015. You take these periods carefully into account when considering the evidence. They're allegations of serious sexual offences.
No charge of a sexual nature was made at the time and indeed for a very long time. The complainant was young at the time. Human memory is fallible. Honest witnesses can be wrong in their recollection. Along with the delay, the more opportunity there is for error and that's particularly so with events that occur in childhood.
It's a matter of common experience that the longer you believe something has happened, the more convinced you are that it has happened. This can be so even if you're mistaken in your recollection. You must bear in mind all of the matters that might have an impact upon the reliability of the evidence of the complainant including her age at the time, the fact that her evidence that has been given before you has been given nearly eight years after the first incident was said to have occurred and the offending is generally to have been alleged over a specified period rather than by reference to specific date.
You'll also need to bear in mind that because of the delay, the evidence of the complainant can't be adequately tested or met after the passage of time. [The appellant] has lost, by that delay, the means of testing and meeting the allegations that would otherwise have been available.
As [defence counsel] said, in relation to the … matters [that happened at E] it's the ability to be able to determine which trucks you were driving, where you were going, matters such as that. We know - we've got photographs of the trucks that were being used in 2015 but not of the events in 2011, '12, '13 and … [the appellant] … has lost that opportunity because of the passage of time.
This is particularly so where there is significant delay that has been identified in the charges in the indictment. [The appellant] has been denied the opportunity to assemble, soon after those incidents are said to have occurred, evidence of what he and other potential witnesses were doing at the time and has lost that opportunity to adequately test the complainant's evidence and also compile evidence to present a defence in relation to those matters.
The forensic disadvantage is real and not confined to just the loss of chance or opportunity. There are two limbs to this forensic disadvantage. There is the loss of the chance to adequately test the complainant's evidence and to adequately marshall the defence.
Had the complaints been made known to [the appellant] soon after the alleged events occurred, particularly in respect of the more aged charges, it would have been possible to have then explored the pertinent circumstances in detail, perhaps to gather or to look to call at trial evidence throwing doubt on the complainant's story and confirming [the appellant's] denial.
Those opportunities are lost with delay. Whilst records of journeys the family made, the places they moved to, the jobs [the appellant] had, the schools attended by the complainant, room layouts, et cetera have been obtained in some cases, it has not been possible to secure other evidence.
The fairness of the trial has necessarily been affected by that delay. [The appellant] has not had that opportunity. That is, the time for him to get the evidence was when it was alleged to have happened. He lost that forensic advantage.
The direction I give you is based on the experience of the courts of the difficulty that an accused person faces in these cases where there has been periods of considerable delay.
So in respect of the charges you're considering, because of the delay and the aspect of forensic disadvantage, particularly in relation to those counts on the indictment that go back some considerable time, and because of the matters I've just referred to, you must scrutinise the complainant's evidence with great care and take into account any facts and circumstances including the forensic disadvantage suffered by [the appellant] as a result of the significant delay which will have a logical bearing upon the truth and accuracy of that evidence.
You're at liberty to act on the evidence of the complainant alone to find [the appellant] guilty of the charge you're considering if you're satisfied beyond reasonable doubt as to the truth and accuracy of her evidence on that charge, but there is a risk of a miscarriage of justice to convict [the appellant] on that evidence alone unless, having scrutinised the evidence with great care, having considered the circumstances relevant to that evidence to which I've referred and taking into account the warning I've just given you, you're satisfied as to its truth and accuracy (ts 378 ‑ 381).

Conviction appeal: ground 1: the appellant's submissions

At the hearing of the application, counsel for the appellant said that ground 1 'comes down totally' to the use by the trial judge on two occasions of the expression 'bear in mind' (appeal ts 2). That was 'the whole of [counsel's] argument' (appeal ts 2).
Counsel claimed that 'there wasn't a clear indication from his Honour that the delay was a matter that [the jury] must, as a direction of law, follow' (appeal ts 5).

Conviction appeal: ground 1: its merits

In recent years this court has considered on numerous occasions the rationale, content and application of the principles in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. See, for example, FJL v The State of Western Australia [2010] WASCA 8; SPD v The State of Western Australia [2012] WASCA 136; RJH v The State of Western Australia [2012] WASCA 137; BW v The State of Western Australia [2013] WASCA 212; RMD v The State of Western Australia [2017] WASCA 70; and SGT v The State of Western Australia [2017] WASCA 136. It is unnecessary to restate or summarise what was written in those cases.
In the present case, ground 1 and counsel for the appellant's submissions in support of the ground are wholly without merit.
First, counsel's submissions were preoccupied with semantics. The submissions did not have any attractive feature of substance.
Secondly, counsel's reliance on the trial judge's use of the expression 'bear in mind' on two occasions ignored the relevant context. His Honour instructed the jury that they 'must bear in mind' all of the matters that might have an impact upon the reliability of the complainant's evidence and that the jury '[needed] to bear in mind' that as a consequence of the delay the complainant's evidence could not adequately be tested or met (emphasis added).
Thirdly, his Honour's instructions that:
(a)the jury must accept the law as directed by his Honour and must apply all of his Honour's directions on matters of law (ts 352);
(b)the Longman warning was 'an important warning' and 'an important direction' (ts 378);
(c)the jury 'must be satisfied beyond reasonable doubt about the truth and accuracy of [the complainant's] evidence before [the jury] could convict [the appellant] on any of the charges' and the jury 'must scrutinise [the appellant's] evidence with special care' (ts 379);
(d)the jury 'should take carefully into account that the earliest of these events charged is alleged to have occurred in July 2008 when [the complainant] was then [aged] 10' and that '[the] matters were not raised with the police until early February 2015' (ts 379);
(e)the jury 'must bear in mind all of the matters that might have an impact on the reliability of [the complainant's] evidence' (ts 380);
(f)the jury '[needed] to bear in mind that because of the delay' the complainant's evidence could not adequately be tested or met (ts 380);
(g)the fairness of the trial had necessarily been affected by the delay (ts 381);
(h)the appellant had been put at a forensic disadvantage as a consequence of the delay by being denied the opportunity to assemble evidence promptly after the relevant incidents were alleged to have occurred and by losing the opportunity adequately to test the complainant's evidence (ts 381);
(i)as a result of the delay and the appellant's consequent forensic disadvantage, the jury 'must scrutinise the complainant's evidence with great care and take into account any facts and circumstances, including the forensic disadvantage suffered by [the appellant] as a result of the significant delay, which will have a logical bearing upon the truth and accuracy of [the complainant's] evidence' (ts 381);
(j)there was a risk of a miscarriage of justice if the jury were to convict the appellant on the evidence of the complainant alone, unless the jury had scrutinised her evidence with great care and had considered the circumstances relevant to her evidence to which his Honour had referred and had '[taken] into account the warning [his Honour had] just given' and was satisfied as to the truth and accuracy of her evidence (ts 381),
would have been understood by the jury, in context, as an imperative instruction to undertake those tasks. The warning was, in context, emphatic. It was not merely a comment.

Fourthly, the appellant's competent and experienced defence counsel did not seek a further direction or a redirection from his Honour in relation to the Longman warning.
Ground 1 has no reasonable prospect of success. Indeed, it is hopeless and should not have been argued.

Conviction appeal: ground 2: the trial judge's directions

The trial judge's directions in relation to recent complaint were as follows:
Now, … I … give … a special direction in relation to some of the evidence. In the course of this evidence, you heard evidence of a conversation by the complainant with [Ms B].
That evidence is to be considered by you for a limited purpose and it's only admissible in that way and not otherwise.
In evaluating the complainant, you're entitled to know shortly after the events on 6 February [2015], that the complainant disclosed to [Ms B], that she'd had sexual intercourse with [the appellant].
You'll recall the account of events that followed with [the complainant], then collecting clothes and then being taken to the [doctor] and to the police, where her statement was taken and she was taken to Dr Johns to be examined at the Sexual Assault Referral Centre.
Proof that a complaint is made can never be proof that the event occurred. It's not separate or additional or corroborative evidence that the crime's committed. The State led … that evidence to show the consistency in the conduct of the complainant.
It's something that you can take into account when you're considering [the complainant's] credibility and the truthfulness of her evidence, but you can't treat it as separate or additional to her evidence.
It's the complainant's evidence of what happened that you saw and heard her give, that you must consider. The fact that she told someone else the same thing, can't add to the truthfulness of the evidence. If a story's not true, repetition of it doesn't make it true.
However, in judging her credibility … and the truthfulness of her evidence, you're entitled to know how she acted after the events, to see whether she acted in a way you might expect a young girl in her position to act, after the events about which she has given evidence.
If you are satisfied that [the complainant] told [Ms B] what happened, that evidence is relevant to her credibility, it has bearing upon the consistency of her conduct and the account she gave in her evidence.
It goes only to her credibility. The timing and nature of the complaint may assist you in determining the … consistency, believability and the credibility of the complainant.
It's entirely a matter for you, but as I said you don't treat it as evidence … that what she complained about is true.
You also heard some evidence from Dr Johns in relation to the account she obtained from [the complainant] when she took the patient history.
I direct that you disregard [evidence] recounted by Dr Johns, other than the physical examination and the history, the purpose of the physical examination, as being inadmissible for the purpose of considering the complainant's credibility. That is to say, the evidence that Dr Johns gave … where she spoke about a prior history, I direct that you disregard that from Dr Johns.
In this case there is no immediate complaint in respect of these matters. The events were not disclosed for some considerable period of time. It's for you to determine what degree of significance you give to … the delay in [the complainant] making any complaint.
This is a matter for you to judge, but I give you this direction as a matter of law. That the absence of complaint, doesn't necessarily mean that the allegation that the offence was committed is false.
There may be good reasons why a victim of an offence may hesitate, or may refrain from making a complaint of the offence alleged (ts 377 ‑ 378).

Conviction appeal: ground 2: the appellant's submissions

At the hearing of the application, counsel for the appellant summarised his argument in relation to ground 2 as follows:
On the indictment, counts 1 to 8 and 10 to 18 all involved sexual penetration, but at the heart of our submission is that the recent complaint evidence only went to counts 10 to 20 on the indictment - the second half of the indictment - not counts 1 to 9. And our contention, as I think is clear in our submissions, is that his Honour didn't delineate for the jury to which counts the recent complaint evidence applied. We say that there was a perceptible risk that the jury would apply the recent complaint evidence to all of those counts that involved sexual penetration, not simply counts 10 to 20 on the indictment (appeal ts 8).

Conviction appeal: ground 2: its merits

As I have mentioned, the complainant was born in 1998.
The State's case, as opened at the trial, was that the appellant commenced sexually abusing the complainant when she was aged about 10. That was her earliest recollection of the abuse. The appellant's sexual touching of the complainant ceased for a short period when she went and lived with her biological father. However, when she returned to live with her mother and the appellant, the sexual touching resumed. At one point, the complainant told her mother about the appellant's abuse. Her mother did not believe her. Eventually, the complainant told a family friend (that is, Ms B) what the appellant had been doing. At that time she was aged 16, almost 17. When the trial occurred the complainant was aged 18 (ts 30 ‑ 31).
Ms B was a State witness at the trial. When the trial occurred she was aged 32 and had known the complainant for about 16 years (ts 177 ‑ 178).
Ms B gave evidence about a conversation she had with the complainant. The following exchange occurred in evidence‑in‑chief:
Did [the complainant] say anything to you about something that happened between her and [the appellant] the Friday before?---Yes.
What did she say about that?---She told me that they had sex in the games room at [the appellant's and the complainant's] house.
Was it the games room?---I think so, yeah. I'm pretty sure it was like games room, pool table, bar type thing.
…
Did [the complainant] say anything to you about going away with [the appellant] north?---Yes. Yeah.
And did she say anything to you about … anything that had happened between her and [the appellant] when they went north?---Yes.
What did she say?---She told me she got tied … she gave [the appellant] a head job and they had sex.
And did she say how long she was away up north?---I think it was a few days.
Right. And - - -?---There was a few times that they'd gone away together, so there's - - -
Right?--- - - - there's a few occasions.
Did she say anything about the frequency of the sex?---She said it was about once, twice a week over a period of time. Sometimes - - -
I'm talking about specifically when she went away up north?---Yeah, it was the one - it was - they were having sex all the time (ts 183).
Ms B said that on the day after the conversation she took the complainant to the police station and they 'talked with a few people' (ts 183). After attending at the police station, Ms B took the complainant to a medical appointment (ts 184).
Allison Johns is a medical practitioner. She was a State witness at the trial. On 10 February 2015, at the Sexual Assault Referral Centre in Perth, Dr Johns took a medical and forensic history from the complainant and carried out an examination of the complainant's genitals. At the time the complainant was aged 16. The history obtained by Dr Johns included that the complainant had been in a sexual relationship with the appellant (ts 200). The complainant informed Dr Johns that she had engaged in penile/vaginal and penile/oral sex with the appellant (ts 200). The information given by the complainant to Dr Johns concerned the whole of the period of the appellant's alleged sexual abuse which, according to the complainant, began when she was in year 4 at school (ts 200). In other words, the complainant told Dr Johns about the appellant's sexual abuse during the whole of the period pleaded in counts 1 ‑ 20.
The doctrine of recent complaint is an exception to the rule against prior consistent statements and the rule against hearsay. See Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [4] (Gaudron & Gummow JJ); R v Bertrand [2008] VSCA 182; (2008) 20 VR 222 [95] (Vincent, Redlich & Weinberg JJA).
When evidence of a complaint is admissible under this doctrine, it is not admissible as evidence of the facts in issue. Rather, it is admissible to buttress the complainant's credit as a witness by demonstrating consistency of conduct. See Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 472 (Barwick CJ, McTiernan, Stephen & Mason JJ agreeing); Suresh [4]; R v Freeman [1980] VR 1, 5 (Starke, McInerney & Murphy JJ).
The notion of 'recent', in the context of recent complaint, refers to the temporal proximity between the occurrence of the alleged offence and the making of the complaint. A condition of admissibility is that the complaint was made at the first reasonable opportunity after the occurrence of the alleged offence. See Freeman (8); Suresh [4]; Bertrand [95]. Compare R v W [1995] QCA 49; [1996] 1 Qd R 573, 574 ‑ 575 (Pincus, Davies & McPherson JJA).
In my opinion, it is not reasonably arguable, for the following reasons, that there was a perceptible risk that the jury would have applied Ms B's evidence as to recent complaint by the complainant to all of the charges that involved sexual penetration and not solely to those charges in counts 10 ‑ 20 that involved sexual penetration.
First, the only evidence of complaint was given by Ms B and Dr Johns.
Secondly, Ms B gave evidence of the conversation she had with the complainant. The conversation must have occurred on or about 7 February 2015.
Ms B said in evidence that the complainant told her that 'the Friday before' the appellant and the complainant had sex in the games room at the appellant's and the complainant's house (ts 183). Ms B also said in evidence that the complainant told her that when the appellant and the complainant travelled to the north of the State they engaged frequently in sexual activity. The prosecutor clarified with Ms B that the prosecutor's questions concerning what the complainant told Ms B about other sexual activity, apart from the sex in the games room, related specifically to the time when the complainant went 'up north' with the appellant (ts 183).
It is apparent from the prosecutor's opening address, the complainant's evidence and Ms B's evidence that the counts in the indictment committed on 'the Friday before' the complainant spoke to Ms B occurred on 6 February 2015 at a Perth suburb and comprised counts 17 ‑ 20.
In late 2014, the appellant, the complainant and the complainant's mother were living at a house in a Perth suburb. The appellant argued with the complainant's mother. The mother left the house. Soon after, the appellant took the complainant with him and they travelled in his truck to the north of the State.
It is apparent from the prosecutor's opening address, the complainant's evidence and Ms B's evidence that the counts in the indictment committed when the appellant and the complainant travelled to the north of the State occurred on 5 and 6 January 2015 at Dampier and comprised counts 13 ‑ 16.
It is apparent from the prosecutor's opening address and the complainant's evidence that counts 10, 11 and 12 were committed between 1 January 2015 and 5 January 2015. Counts 10 and 11 occurred at a Perth suburb and count 12 at an unknown place in Western Australia.
Thirdly, Dr Johns gave evidence as to information given to her by the complainant on 10 February 2015. The complainant told Dr Johns about the appellant's alleged sexual abuse during the whole of the period pleaded in counts 1 ‑ 20. However, the trial judge expressly instructed the jury to disregard Dr Johns' evidence about the conversation she had with the complainant as to the appellant having engaged in sexual activity with the complainant.
Fourthly, his Honour expressly confined his recent complaint direction to the evidence Ms B had given as to what the complainant had told her in their conversation concerning the complainant's sexual activity with the appellant.
Fifthly, in all the circumstances, the jury would have been in no doubt that the trial judge's recent complaint direction applied to counts 10 ‑ 20, but not to counts 1 ‑ 9.
Sixthly, the appellant's competent and experienced defence counsel did not seek a further direction or a redirection from his Honour in relation to the recent complaint evidence.
Ground 2 has no reasonable prospect of success.

Conviction appeal: conclusion

Leave to appeal against conviction should be refused and the appeal dismissed.

Sentence appeal: ground of appeal

The appellant relies on one ground in his sentence appeal.
The ground alleges in effect that the total effective sentence of 12 years' imprisonment infringed the first limb of the totality principle.

Sentence appeal: the sentencing judge's sentencing remarks

The trial judge noted in his sentencing remarks that the appellant's offending against the complainant, as alleged in the indictment, began when she was aged about 11 or 12 years and 'was generally continuous for a period through until 6 February 2015' when she was aged 16 (ts 2).
The appellant groomed the complainant 'from the outset'. He threatened to harm the complainant's infant sibling. He also threatened to harm the complainant and her father. He used forceful behaviour towards the complainant. The threats and forceful behaviour were calculated to procure the complainant's submission to his sexual abuse. The appellant 'utterly corrupted the complainant such that she believed that she was in love with [him] and was overborne by [him]' (ts 3).
His Honour referred to the complainant's vulnerability, to the absence of consent and to any consent being obtained by threats or force. The appellant admitted that he viewed the complainant as vulnerable due to the absence of her father and a problematic relationship with her mother. The sexual abuse was 'humiliating and degrading' for the complainant and included oral sex, digital/vaginal penetration, penile/vaginal penetration and 'painful [penile/anal] penetration' (ts 3). The appellant did not use a condom while having intercourse with the complainant. She was therefore at risk of possible pregnancy and possible sexually transmitted disease. The appellant abused the complainant for his own sexual gratification.
The trial judge was satisfied that the appellant had a sexual attraction to the complainant and that 'the way in which [he] looked upon [the complainant] started much earlier … when she … was a very young child and then in a sexual way' (ts 5).
The complainant's victim impact statement revealed that she had been ostracised by her family as a result of her having disclosed the appellant's sexual abuse. The remarkable attitude of her family has maintained the emotional pain inflicted by the appellant on her. His conduct has destroyed the complainant's family relationship.
The appellant was aged 26 when the offending commenced and was 33 at the time of sentencing.
The material before his Honour included a psychological report dated 27 November 2016 from Tanina Oliveri, a clinical and forensic psychologist, and a pre‑sentence report. During an interview with Ms Oliveri, the appellant displayed little concern for the complainant or her family. He insisted that he was innocent. Ms Oliveri reported that the appellant was 'a self‑focused man, who appeared to place his own needs before those of others'.
The appellant completed year 10 at school. Soon after commencing year 11, he left school and entered the workforce. Initially, he was employed as a deckhand. Later, he obtained a skipper's ticket. He has worked in his father's building business and also, intermittently, as a truck driver and on charter boats. For much of the time when he was committing the offences, the appellant was a truck driver.
The trial judge observed that the appellant had a prior criminal record including convictions for common assault, breaches of a violence restraining order in relation to a former partner and unlawful assault occasioning bodily harm in circumstances of aggravation. The appellant has a tendency to minimise the seriousness of his violence.
The appellant is at a moderate risk of reoffending in a sexual manner.
His Honour accepted that the appellant had a demonstrated capacity for work. The appellant had participated actively in community activities including with junior football.
However, the appellant did not evince any remorse for his offending. He had no regard for the significant impact of his behaviour upon the complainant. There was no mitigation in the manner in which the defence was conducted at trial. The appellant instructed defence counsel to put to the complainant in cross‑examination that she was a liar.

Sentence appeal: the appellant's submissions

Counsel for the appellant submitted that the total effective sentence imposed on the appellant was often given to child sex offenders after trial where the abuse had involved more than one complainant. According to counsel, the seriousness of the appellant's offending was diminished, compared to a number of other cases of child sex offending, by the fact that there was only one complainant. Also, counsel argued that when the offending commenced the appellant was aged 26 and therefore 'a relatively young man' (appeal ts 11).

Sentence appeal: its merits

A ground of appeal that alleges a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).
The maximum penalty for the offence of sexually penetrating a child who the offender knows is his or her de facto child, where the child is under the age of 16 years, is 20 years' imprisonment. See s 329(2) read with s 329(9)(a) of the Code. The appellant was convicted of six of these offences.
The maximum penalty for the offence of sexually penetrating a child who the offender knows is his or her de facto child, where the child is of or over the age of 16 years, is 10 years' imprisonment. See s 329(2) read with s 329(9)(b) of the Code. The appellant was convicted of eight of these offences.
The maximum penalty for the offence of indecently dealing with a child who the offender knows is his or her de facto child, where the child is of or over the age of 16 years, is 5 years' imprisonment. See s 329(4) read with s 329(10)(b) of the Code. The appellant was convicted of one of these offences.
The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).

It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only 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. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] ‑ [69] (Steytler P); Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P, Newnes JA & Mazza J).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
I have taken into account numerous cases involving appeals against sentence for child sex offences. In particular, I have examined the facts and circumstances, and the sentencing dispositions, in Rogers v The Queen [2004] WASCA 147; Truscott v The State of Western Australia [2007] WASCA 62; GMS v The State of Western Australia [2009] WASCA 107; Rowan v The State of Western Australia [2009] WASCA 185; KMB v The State of Western Australia [2010] WASCA 212; The State of Western Australia v Prince [2011] WASCA 22; RFS v The State of Western Australia [2012] WASCA 58; CJF v The State of Western Australia [2012] WASCA 69; SWD v The State of Western Australia [2012] WASCA 76; MMC v The State of Western Australia [2012] WASCA 187; The State of Western Australia v FJG [2012] WASCA 206; ERA v The State of Western Australia [2013] WASCA 163; Downie v The State of Western Australia [2013] WASCA 244; GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178; ARK v The State of Western Australia [2014] WASCA 45; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178; The State of Western Australia v PJW [2015] WASCA 113; EXF v The State of Western Australia [2015] WASCA 118; Lewsam v The State of Western Australia [2016] WASCA 60; FWB v The State of Western Australia [2016] WASCA 118; LJH v The State of Western Australia [2016] WASCA 155; NHT v The State of Western Australia [2016] WASCA 167; JDF v The State of Western Australia [2016] WASCA 221; KND v The State of Western Australia [2017] WASCA 36; and RGT v The State of Western Australia [2017] WASCA 120. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features (for example, the presence or absence of pleas of guilty).
In the present case, the very serious character of the appellant's offending, including the vulnerability of the complainant, are apparent from my summary of the facts and circumstances of the offending and the trial judge's sentencing remarks.
The appellant was the complainant's stepfather. He began sexually assaulting her when she was aged about 11 or 12 years. The abuse was generally continuous for a period of about four or five years. The appellant groomed the complainant and persuaded her that he loved her. He gave her alcohol and cannabis to facilitate the sexual activity. The appellant used threats and forceful behaviour towards the complainant. He corrupted her and destroyed her family life.
There was little mitigation. There is no merit in counsel for the appellant's argument to the effect that the appellant was 'a relatively young man' when the offending commenced. The offending was calculated and repetitive. It occurred when the appellant was aged between 26 and 31. He was not youthful or inexperienced for sentencing purposes. The appellant was, of course, entitled to proceed to trial. However, he was unable to claim the mitigation that pleas of guilty would have brought. The offences of which the appellant was convicted were representative of a course of conduct. Although the appellant was only to be sentenced and punished for the offences of which he was convicted, the representative character of his offending demonstrated that those offences were not isolated incidents. His offending was not uncharacteristic or an aberration. The appellant had a prior criminal record. Although his offending was not aggravated by the fact that he had a criminal record and previous sentences may not have achieved the purpose for which they were imposed, the appellant did not have the mitigation of being otherwise of good character. He was not remorseful. No victim empathy was apparent.
The appellant is at a moderate risk of reoffending in a sexual manner.
There is no merit in counsel for the appellant's submission that the seriousness of the appellant's offending, compared to a number of other cases of child sex offending, was diminished by the fact that there was only one complainant. The reality is that, on some occasions, cases involving a single complainant are less serious than cases involving multiple complainants, but on other occasions they are not. The seriousness of an offender's child sex offences, compared to other cases, depends on all of the relevant facts and circumstances and all of the relevant sentencing factors. The number of complainants is, no doubt, a relevant consideration, but it is not necessarily, of itself, crucial or decisive. Although the present case involved only one complainant, the offending was, without doubt and for the reasons I have given, very serious.
In my opinion, the total effective sentence of 12 years' imprisonment did not infringe the first limb of the totality principle. An aggregate sentence of that length was required in order properly to reflect the very serious nature of the appellant's overall offending and to give effect to the primary sentencing considerations of appropriate punishment, personal deterrence and general deterrence, having regard to the need to protect vulnerable children. An accumulation of the individual sentences for counts 2, 6 and 13 was necessary. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the vulnerability of the complainant, the pattern of sentencing

in reasonably comparable cases, the appellant's personal circumstances and the limited mitigation.

It is not reasonably arguable that error by his Honour in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome.
The ground of appeal has no reasonable prospect of success.

Sentence appeal: conclusion

Leave to appeal against sentence should be refused and the appeal dismissed.
MAZZA JA: I agree with Buss P.
HALL J: I agree with Buss P.