KWLD v The State of Western Australia [No 4]
[2013] WASCA 185
•14 AUGUST 2013
KWLD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2013] WASCA 185
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 185 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:229/2012 | 12 JUNE 2013 | |
| Coram: | BUSS JA MAZZA JA HALL J | 14/08/13 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | The application for an extension of time to appeal against conviction (CACR 49/13) be refused. The applications for orders pursuant to s 40(1) of the Criminal Appeals Act dated 13 May 2013 be dismissed. Leave to appeal on all grounds of the appeal against sentence (CACR 229/12) be refused. The appeal against sentence be dismissed. | ||
| B | |||
| PDF Version |
| Parties: | KWLD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Applications for leave to appeal against conviction and sentence Sexual offences Aggravated burglary Juvenile offender Whether aggregate sentence of 30 months' imprisonment excessive Totality principle Fresh evidence Whether factual errors made Whether mental health taken into account |
Legislation: | Nil |
Case References: | Birch v The Queen (1994) 12 WAR 292 Borsa v The Queen [2003] WASCA 254 Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433 CJ v The State of Western Australia [2009] WASCA 42 Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 Deering v The State of Western Australia [2007] WASCA 212 F v The State of Western Australia [2008] WASCA 100 (2008) 184 A Crim R 125 Germain v The State of Western Australia [2004] WASCA 293 Gok v The Queen [2010] WASCA 185 Hine v The State of Western Australia [2010] WASCA 216 Hogue v The State of Western Australia [2005] WASCA 102 Hubbard v Fisher [2001] WASCA 182 Indich v The Queen [1999] WASCA 146 JAF v The State of Western Australia [2008] WASCA 231 Krijestorac v The State of Western Australia [2010] WASCA 35 Lowe v The Queen (1984) 154 CLR 606 Marris v The Queen [2003] WASCA 171 Maxwell v The Queen (1996) 184 CLR 501 Nguyen v The State of Western Australia [2009] WASCA 81 R v Avery [2002] WASCA 136 R v Chilvers [2003] WASCA 87 R v Hunt [2002] WASCA 324 Riggall v The State of Western Australia [2008] WASCA 69 Roffey v The State of Western Australia [2007] WASCA 246 RP v The Queen [2008] NTCCA 8 S v The Queen [1989] HCA 66; (1989) 168 CLR 266 Shaw (1989) 39 A Crim R 343 Simon v The State of Western Australia [2009] WASCA 10 Swain (1989) 41 A Crim R 214 The State of Western Australia v ABM [2004] WASCA 90 The State of Western Australia v Hyder [2011] WASCA 256 The State of Western Australia v Lee [2008] WASCA 150 The State of Western Australia v Munda [2012] WASCA 164 The State of Western Australia v SJH [2010] WASCA 40 Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 Van Doorn v The State of Western Australia [2008] WASCA 177 Walton v Gardiner (1993) 177 CLR 378 Wheeler v The Queen [No 2] [2010] WASCA 105 Wilson v The Queen [1985] WAR 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KWLD -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2013] WASCA 185 CORAM : BUSS JA
- MAZZA JA
HALL J
- CACR 49 of 2013
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : GN 372 - 374 of 2011, GN 434 - 439 of 2011, CC 5382 of 2011, CC 5383 of 2011, CC 5384 of 2011, CC 5385 of 2011
Catchwords:
Criminal law - Applications for leave to appeal against conviction and sentence - Sexual offences - Aggravated burglary - Juvenile offender - Whether aggregate sentence of 30 months' imprisonment excessive - Totality principle - Fresh evidence - Whether factual errors made - Whether mental health taken into account
Legislation:
Nil
Result:
The application for an extension of time to appeal against conviction (CACR 49/13) be refused.
The applications for orders pursuant to s 40(1) of the Criminal Appeals Act dated 13 May 2013 be dismissed.
Leave to appeal on all grounds of the appeal against sentence (CACR 229/12) be refused.
The appeal against sentence be dismissed.
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Birch v The Queen (1994) 12 WAR 292
Borsa v The Queen [2003] WASCA 254
Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433
CJ v The State of Western Australia [2009] WASCA 42
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Deering v The State of Western Australia [2007] WASCA 212
F v The State of Western Australia [2008] WASCA 100 (2008) 184 A Crim R 125
Germain v The State of Western Australia [2004] WASCA 293
Gok v The Queen [2010] WASCA 185
Hine v The State of Western Australia [2010] WASCA 216
Hogue v The State of Western Australia [2005] WASCA 102
Hubbard v Fisher [2001] WASCA 182
Indich v The Queen [1999] WASCA 146
JAF v The State of Western Australia [2008] WASCA 231
Krijestorac v The State of Western Australia [2010] WASCA 35
Lowe v The Queen (1984) 154 CLR 606
Marris v The Queen [2003] WASCA 171
Maxwell v The Queen (1996) 184 CLR 501
Nguyen v The State of Western Australia [2009] WASCA 81
R v Avery [2002] WASCA 136
R v Chilvers [2003] WASCA 87
R v Hunt [2002] WASCA 324
Riggall v The State of Western Australia [2008] WASCA 69
Roffey v The State of Western Australia [2007] WASCA 246
RP v The Queen [2008] NTCCA 8
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Shaw (1989) 39 A Crim R 343
Simon v The State of Western Australia [2009] WASCA 10
Swain (1989) 41 A Crim R 214
The State of Western Australia v ABM [2004] WASCA 90
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Lee [2008] WASCA 150
The State of Western Australia v Munda [2012] WASCA 164
The State of Western Australia v SJH [2010] WASCA 40
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Van Doorn v The State of Western Australia [2008] WASCA 177
Walton v Gardiner (1993) 177 CLR 378
Wheeler v The Queen [No 2] [2010] WASCA 105
Wilson v The Queen [1985] WAR 279
1 BUSS JA: I agree with Hall J.
2 MAZZA JA: I agree with Hall J.
3 HALL J: On 13 February 2012 the appellant pleaded guilty to 13 offences. He was sentenced in the Children's Court by Birmingham DCJ on 13 September 2012 to a total effective sentence of 30 months' imprisonment, backdated to 16 November 2011 (when he was taken into custody for the offences in question), with eligibility for parole. He seeks leave to appeal against both his convictions and his sentence.
4 The nature of the offences and the sentences imposed are as follows:
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| 436/11 | 15.6.10 - 15.7.10 | Sexual penetration of a child over 13 and under 16 - s 321(2) | 7 years | 9 months' imprisonment concurrent |
| 437/11 | 15.6.10 - 15.7.10 | Sexual penetration of a child over 13 and under 16 - s 321(2) | 7 years | 9 months' imprisonment concurrent |
| 438/11 | 1.6.11 - 7.6.11 | Involving a child in child exploitation - s 217(2) | 10 years | 6 months' imprisonment concurrent |
| 439/11 | 1.6.11 - 7.6.11 | Possession of child exploitation material - s 220 | 7 years | 4 months' imprisonment concurrent |
| 5382/11 | 8.11.11 | Aggravated burglary and commit an offence - s 401(2)(a) | 20 years | 15 months' imprisonment concurrent |
| 5383/11 | 8.11.11 | Aggravated burglary and commit an offence - s 401(2)(a) | 20 years | 9 months' imprisonment concurrent |
| 5384/11 | 8.11.11 | Deprivation of liberty - s 333 | 10 years | 12 months' imprisonment concurrent |
| 5385/11 | 8.11.11 | Impersonating a public officer - s 87(2)(a) | 2 years | 3 months' imprisonment concurrent |
5 The appellant was born on 18 July 1994, so the offences were committed in a period commencing shortly before his 16th birthday with the last offences committed after he turned 17. He had turned 18 by the time he came to be sentenced. The maximum penalties for the offences of sexual penetration and attempted sexual penetration were reduced by reason of the appellant being under the age of 18 years at the time they were committed: s 321(7)(c).
6 The sexual offences involved four different female complainants. Charges 372/11 and 373/11 related to TB, who was 14 at the time. Charge 374/11 related to SM, who was 13 at the time. Charges 434/11 to 437/11 related to MC, who was 15 at the time. Charges 438/11 and 439/11 related to SW, who was 15 at the time.
7 The appeals relate only to the sexual offences. However, the appeal against sentence raises an issue in regards to the total effective sentence imposed and, in this regard, it is necessary to consider the sentences in the context of the appellant's total criminal conduct. Furthermore, one of the proposed grounds against sentence raises a parity issue in regard to the non-sexual offences.
8 The prosecution case was that the sexual offences against TB had occurred without her consent. Consent was not an element of the offences because TB was under the age of 16. It was, however, a matter that was relevant to sentence. The prosecution also contended that in respect of MC, SM and SW, their involvement had been procured by undue pressure being placed on them by the appellant.
9 The appellant disputed that the sexual offences had occurred without consent or that he had exerted undue pressure. A trial of issues was conducted to resolve these issues. I will refer to the evidence and outcome of that trial of issues in more detail later in these reasons. It is sufficient to note at this stage that the issue was resolved against the appellant in respect of TB and SM. This was a significant finding and is reflected in the sentences imposed for the offences relating to those complainants. No doubt for this reason a number of the appellant's proposed grounds focus on the validity of the factual findings relating to those complainants.
Extension of time
10 The appeal notice in respect of conviction was filed on 26 February 2013. Accordingly, it was more than 4 months out of time and an extension is required.
11 The appellant filed an affidavit in support of his application for an extension of time. The reasons given for the delay are that the transcript of the proceedings in the Children's Court was incomplete and necessitated the provision of a report from the sentencing judge. He also refers to the fact that he had legal representation until 15 February 2013 and thereafter has been self-represented.
12 The reasons given by the appellant do not adequately explain the delay. However, an extension can also be granted if it is established that a refusal would result in a miscarriage of justice. This requires consideration of the merits of the grounds of appeal. If the grounds of appeal have no reasonable prospect of succeeding then an extension of time should be refused.
Applications
13 On 13 May 2013 the appellant filed applications in respect of each of the appeals. The applications were for orders pursuant to s 40(1) of the Criminal Appeals Act 2004 (WA). Three orders were sought. They were that two witnesses be summoned and examined on the appeal, that documents relating to communications involving those two witnesses be obtained under summons and that an assessor be appointed with special expert knowledge to provide the court with information regarding how juveniles communicate using social media.
14 The first two orders related to what was said to be fresh evidence as to the credibility of claims made by one of the complainants. The third order was said to be necessary because the sentencing judge had made comments regarding the frequency and content of Facebook and text messages sent by the appellant to the complainants. The appellant argued that these conclusions failed to take into account the way in which such messages were generally used by people of his age.
15 In order to understand these applications it is necessary to consider them in the context of the factual issues raised in the grounds of appeal. I will return to them later in these reasons.
Questions of law
16 On 18 July 2013 (received 25 July 2013) the appellant wrote to the court seeking to raise two questions of law. The questions do not directly relate to any of the existing proposed grounds of appeal against either conviction or sentence.
17 The questions raised by the appellant are as follows:
1. Chapter III Part 80 of the Commonwealth of Australia Constitution Act 1901 states:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
- a) Does this right extend to a child accused charged with indictable offences?
b) Does this section extend to a trial-of-the-issues in the case of indictable offences?
2. Pursuant to the Children's Court Act 1988 a child accused has the right to elect to be tried on indictment in a superior court:
a) Does this right extend to include a trial-of-the-issues, in the case of indictable offences?
b) At what stage during criminal proceedings is the Children's Court obliged to inform a child accused of their right under this section?
c) May a ground of appeal lie against the failure of the Court to inform a child accused of their right under this section?
19 An appeal is not a forum for answering legal questions in the abstract. Appeals are entirely creatures of statute: Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 47. The powers of a court to hear and determine an appeal can only arise from relevant legislation. In respect of decisions by a judge in the Children's Court appeals may be made under and subject to pt 3 of the Criminal Appeals Act 2004 (WA): s 42A Children's Court of Western Australia Act 1988 (WA). There is no provision in pt 3 for an appellant to raise questions of law of a general nature.
20 There are statutory provisions that allow for questions of law to be referred to this court for determination. See s 98(2)(d) Criminal Procedure Act 2004 (WA) and pt 5 Criminal Appeals Act. Those provisions allow for questions to be referred by a superior court or by the Attorney General. The appellant's questions do not fall under any of those provisions and, accordingly, this court has no jurisdiction to consider and answer them.
21 In any event I do not consider that answers to the appellant's questions could possibly assist him. They do not raise issues that, when applied to his particular circumstances, have any prospect of affecting the outcome.
22 As regards the first question, the appellant was not charged with, or convicted of, any Commonwealth offences. The offences of which he was convicted were all offences under State law. Section 80 of the Commonwealth Constitution has no application to the trial of offences against State laws: Birch v The Queen (1994) 12 WAR 292, 309 (Owen J, Rowland J agreeing).
23 As regards the second question, s 19B of the Children's Court Act provides that a child charged with an indictable offence that either must be tried on indictment or that the court decides should be tried on indictment, may elect to be tried on indictment by the Supreme Court or the District Court (as the case requires) and the court 'shall so inform the child'. If the child does not make an election the Children's Court may hear and determine the charge as if it was a prosecution on indictment and any conviction is taken to be a conviction on indictment: s 19B(4)(c) and (d).
24 The requirement to advise a child of the right of election is mandatory. However, a failure to comply with that requirement does not invalidate the proceedings. There is nothing in the Children's Court Act to suggest that the jurisdiction of the court is dependent upon the child being informed of their right to make an election. Indeed, the terms of s 19B(4) imply that it is not. Furthermore, even if there was a jurisdictional error the proceedings, including any determinations on a trial of issues and any sentences imposed, would be lawful: s 169 Criminal Procedure Act.
25 In this case it is not clear whether or not the appellant was asked to make an election on all charges. There are notations on the prosecution notices for charges 372 - 374/11 on 24 June 2011 and charges 434 - 439/11 on 22 July 2011 that the appellant 'does not elect to proceed on indictment'. This indicates that the requirements of s 19B were complied with, at least in respect of those charges. However, even assuming they were not, that would not render the proceedings or the sentences imposed on the appellant unlawful. Furthermore, there is no reason to think the outcome would have been affected if the appellant had been dealt with in the District Court. There is no basis for exercising the discretion arising under s 169(4) Criminal Procedure Act, even if a jurisdictional error did occur.
Facts alleged by the prosecution - Sexual offences
26 The facts alleged by the prosecution in relation to the sexual offences were as follows.
27 In June 2010 the appellant initiated contact with MC who was 15 years old at the time. He arranged to meet with her to see a movie in the Geraldton CBD. After meeting they walked together to a secluded location near the marina where the appellant coerced MC into having sex with him. The coercion was not physical but emotional. The State alleged that the appellant was initially kind to MC until they got to the point where he wanted her to have sexual intercourse. When she initially said no, he displayed anger. He threatened to telephone her parents and tell them that she had not gone to the movies and was with him. He dialled her home number and hung up five to ten seconds later. He then began to move off and there was an implied threat that he would tell her sister. He used verbal techniques such as saying 'you don't love me and you don't care' in an effort to persuade MC to have sex with him.
28 Whilst MC had initially agreed to engage in sexual behaviour in earlier electronic communications she was reluctant on the day. This reluctance was shown by her rejecting locations, saying that she did not want to do it and refusing to take off her underwear. The appellant asked why she was keeping her bra on, and whether she was scared and MC said that she was.
29 MC submitted to the pressure from the appellant and removed her top and jeans. She then sat on him whilst still wearing her underpants. The appellant pulled the crotch area of MC's underpants to the side and pulled her down penetrating her with his erect penis. The appellant then told MC to get onto her hands and knees and he again had sexual intercourse with her from behind. The appellant then lay on his back and MC sat on his hips and they again had sexual intercourse. The appellant then moved MC onto her back, lay on top of her and had sexual intercourse until he ejaculated. MC asked the appellant to use a condom but he refused. He was the instigator of the sexual positions.
30 MC disclosed what had occurred to her mother soon after and expressed concern about getting pregnant. After the incident the appellant and MC developed a relationship which lasted for about three months.
31 During the ensuing relationship, the appellant attempted to extract information from MC that he could then use against her if she did not keep communicating with him. The appellant participated in a video record of interview in September 2010 in which he accepted that this was a technique he used in respect of MC. He also threatened to kill himself if MC did not have sex with him. He also made threats to the effect that he could ruin MC's life, that he knew the court system well and was good at manipulating people and getting what he wanted.
32 It was accepted by the State that MC did enter into a relationship with the appellant and that she had feelings for him. They did have sex on a second occasion but no charges were preferred in respect of that matter. This was said to be because it was 'more consensual'. Nonetheless there was said to be a continued pattern of manipulation in regard to the second occasion. It involved him telephoning MC and begging her not to break up with him and saying that he would not leave town without seeing her again. He tried to convince her to sneak out of her house, but she did not want to. In the end they reached an agreement for him to come to her house and they met outside. This conduct was relied upon by the State as being evidence of the appellant's manipulative tendency.
33 In 2011, the appellant initiated contact with SW. She was previously unknown to him. The contact was initiated through Facebook. Initially the appellant was friendly towards SW. He then started asking if they could meet, but she said that she was 'grounded'. The appellant expressed anger and threatened to tell SW's boyfriend that they had been in contact and that there had been sexual discussion between them, though this was not true. He also threatened to terminate their friendship unless she sent sexually explicit photographs of herself to him. She did as requested and took photographs of herself, which she sent to him.
34 The appellant initiated contact with TB in 2011 when she was 14 years old, using mobile phone texts and the internet. He asked TB to meet with him at a beach in Geraldton and she agreed. Prior to meeting with TB the appellant said that if she did not meet with him he would kill himself.
35 After they met the appellant tried to coerce TB to engage in sexual behaviour. This involved pressure to go with him down a track to a clearing. When there he pulled her to the ground and pulled her jeans and underwear down. He then pulled his own pants down and lay on top of her and pushed his penis against her vagina. TB repeatedly told him that she did not want to do it and that she wanted to go. The appellant used an aggressive tone of voice and said no, pinning her shoulders down with his hands. He continued attempting to have intercourse for about five minutes. He then got off TB and she stood up and pulled up her jeans. She said she was going but the appellant told her to stay, pushed one of his hands down the front of her pants and inserted his fingers into her vagina. She told him to stop and he angrily said no. TB then left and walked home. The appellant then made contact with TB by mobile telephone threatening to hurt or kill her and also making threats towards her family.
36 After the offence involving TB the appellant told her not to tell anyone. He said this was because he already had a girlfriend. However, he continued to call TB and threatened to kill himself or her family if she did not answer. He also threatened to hurt TB's family if she said anything. He said that he knew where she lived and on an occasion after the incident he visited her house at 3.00 am and called her persistently until she answered and went outside to see him.
37 The appellant first contacted SM in early 2011. She was 13 years old at the time. He initiated contact using electronic media. He persuaded her to meet with him at about 1.00 am at a service station in Geraldton. They then walked back to SM's house. Her mother was out and only a 16-year-old stepsister was home. SM and the appellant watched a movie at her house and then went to her bedroom where they lay down on her bed. The appellant then began asking SM for sex. She said that she did not want to. He became more aggressive and persistent. He threatened to spread rumours about her if she did not comply with his requests. Despite her reluctance, SM complied with the appellant's demands. He pulled his shorts down and put a condom on his penis and then removed her shorts before having intercourse with her until he ejaculated. Afterwards the appellant laughed about the condom breaking. He later sent SM a text threatening to tell everyone that they had sex if she did not do it again.
38 The State's case was that in respect of each of the complainants the appellant had used emotional manipulation and persistence to achieve his objective. This was said to be a relevant factor in sentencing.
Trial of issues
39 The trial of issues took place between 26 and 29 June 2012. All four of the complainants were called as witnesses and the appellant also gave evidence.
40 The appellant contends that his Honour made factual errors in relation to TB and SM. As no such claim is made in respect of the other complainants it is unnecessary to summarise their evidence.
41 TB said that before she met the appellant at the beach there had been electronic communications between them. He had raised issues of a sexual nature but she did not respond. She said that this was because she had no interest and she told him that. She said that she had agreed to meet him at the beach but she did not think anything was going to happen. She said that the sexual acts had occurred without her consent and that she had said 'no'. She said that when she was lying on the ground the appellant had held her down by the shoulders. It was put to her in cross-examination that she had later decided to make up that it was done by force to make herself feel better. In particular, it was suggested that she had made this up in response to taunts from others who had been told by the appellant that they had had sex. She denied this.
42 It was put to TB that when they met there was mutual kissing. She agreed that there had been kissing but denied that she had wanted to kiss the appellant. She said that she was scared and did not want anything to happen. She agreed that no physical force was used to take her to the clearing and that she had not screamed or attempted to run away. She maintained that it was the appellant who undressed her. As regards the first charge, TB accepted a proposition that it was not an attempt but that the appellant's penis went inside her vagina. She agreed that after the sex she was able to walk away on telling the appellant that she needed to go. He then threatened to kill himself if she did not keep in contact with him. She said he also threatened to hurt her and her family if she told people.
43 TB agreed that one morning after the incident the appellant turned up at her house at around 2.00 or 3.00 am. He telephoned her and said that he had nowhere else to go. Initially she did not feel sorry for him but he persisted. He convinced her to go outside because he said it was important. He said he had nowhere else to go and she gave in. At this stage her parents did not know what had happened and she did not want to tell them. She was prepared to go outside and started to do so but her father stopped her.
44 It was put to TB that a few weeks after the incident she and a female friend met with the appellant at a park in Spalding. The meeting was arranged by her friend using Facebook. She said that her friend was angry and there had been a verbal confrontation between her friend and the appellant. She said she had not agreed to the meeting rather it had been arranged by her friend.
45 SM said that when the appellant first made contact with her on Facebook she thought it would be good to meet someone new. When she met him he was friendly but she started to feel edgy and uncomfortable when he came back to her place. She felt that he was bigger than her, had power over her and knew more people. She felt pressured to have sex with him. When he raised the subject in later communications she had said it felt good because she thought that if she did not agree with him he would use it against her or tell her family and get her into trouble. He made threats of that kind in text messages. She said that after the incident she put her clothes in the wash and had a shower because she felt dirty and used.
46 SM said that when they were in her bedroom the appellant came across as a completely different person. She said that there was a lot of aggression in his voice and anger at some stages. There were extensive Facebook communications between SM and the appellant that were tendered in evidence.
47 In cross-examination SM agreed that she and the appellant had exchanged flirtatious text messages whilst they were both in the bedroom and SM's sister was present. She said, however, that she had asked her sister to sit in the room with them because she was worried about what the appellant might do. She said that she did not mind him touching her but she did not want to have sex with him. It was put to SM that the appellant had asked her to have a condom available. She agreed that she had some in her top cupboard. She agreed that she had provided one to him and it had been used. Afterwards he had joked that it had broken. However, she maintained that she had not wished for things to go that far and had said that she did not want to engage in sex. She was still a virgin at the time. He had persisted and held her arms tighter. She had then gone and got the condom and he pulled her back on top of him. When asked why she did not walk out of the room, SM said that she feared that the appellant would grab something in her room and hurt her and her sister. She accepted that he made no explicit threats in that regard but she felt that he had 'the power in his hands'. She said she complied with his demands because she was scared.
48 The appellant gave evidence and accepted that in respect of each of the complainants he had done the acts alleged. He also accepted that he knew that each of the girls was under 16 at the time. He denied that he had coerced or put pressure on the complainants and, in particular, denied that TB had not consented.
49 The appellant said that he had communicated with TB on Facebook before meeting her at the beach. He denied making any threats towards her or her family. He said he may have spoken to her about feeling depressed. He said that when they met TB seemed concerned that her brother would find out where she was so they moved out of view of the path into a clearing. He said that they moved closer to each other and he kissed her and she kissed him back. He denied pulling her to the ground. He said that they both moved to the ground as they were kissing. He said that he unbuttoned the top of her jeans but that she removed them and her underwear. He said that he then was on top of her while they had intercourse and they continued to kiss. He denied that she said that she did not want to do it. He denied that he was holding her down by the shoulders at any stage. He said that at one stage she did say 'wait' or 'hold on'. He then asked if she was okay. She nodded. They kissed again and it continued. He said that afterwards they walked away together and kissed again. He said that TB's jeans were still unzipped and as they were kissing he put his hands down and inserted his fingers into her vagina. He said he noticed blood on his hand and washed it in the ocean. They then walked back to the clearing and TB said she had to go. He kissed her and she left.
50 The appellant said that subsequently he met TB and her friend at the park in Spalding. He said that he and TB were able to walk down to the river away from her friend. He said there was just general conversation and they hugged. He said that TB's friend then came over and angrily told him to get away from TB. He said that TB put her face to his chest and hugged him. The friend threatened to tell TB's parents what had occurred. He said that he told the friend that TB had agreed to have sex and that she was as much responsible as he was.
51 As regards SM, the appellant agreed that in Facebook communications with her he had said that he was going to hurt or kill himself. He said that at the time he was self-harming. He said that there was also talk of a sexual nature. He said that he was being really straightforward with SM and he did ask if she was comfortable with meeting him and having sex. He believed she had a positive response. He said that when they went to her house the condom was provided by SM and she had spent a significant amount of time looking for it under her bed. When asked whether he had made threats or manipulated her before having sex at her house he said that he was somewhat mentally unstable at the time and believed that he was saying things that were straightforward. However, he now accepted that he was being erratic. One of the erratic things that he was talking about beforehand was bringing a gun or a knife.
52 The appellant said that after SM's sister left the bedroom they started to hug and touch each other in a sexual way. He said that SM agreed to climb on top of him whilst he was laying on her bed. Sexual intercourse did not continue for long on that occasion because SM said she thought she heard her sister coming. He said that it was early in the morning and he was tired and he then fell asleep for an hour or two. He said that he awoke as it was getting light and that SM agreed to have sex again. He said that it was on this occasion that she found a condom which he used. He agreed that he had made a joke about the condom breaking. He said that he did not pressure SM and did not believe that she was frightened or unwilling.
Factual findings
53 It was accepted that the issue of whether the complainants had accepted or had relented under pressure or coercion was an aggravating factor. In those circumstances, the prosecution bore the onus of proving that factor beyond reasonable doubt.
54 With respect to MC, his Honour made the following findings of fact:
(a) At the time of the offences the appellant and MC were in a boyfriend-girlfriend relationship.
(b) He was not satisfied that MC's participation in the sexual relationship with the appellant was the result of any manipulative conduct on his part that was so overbearing that her consent was not freely and voluntarily given in every sense.
(c) The appellant sought information of a private nature from MC with the intention of ensuring her trust and dependency upon him.
(d) The appellant had genuine feelings for MC and the sexual conduct that occurred happened in that context.
55 With respect to TB, his Honour made the following findings:
(a) In relation to the charge of attempted sexual penetration, he was satisfied that the appellant actually penetrated TB's vagina with his penis.
(b) The appellant had sexually penetrated TB with his penis and then digitally penetrated her without her consent.
(c) At the time of the acts of sexual penetration the appellant did not believe that TB was consenting.
56 With respect to SM, his Honour made the following findings:
(a) At the time SM was 13 years of age and the appellant was aware that she had previously run away from home and was vulnerable.
(b) SM's apparent consent to the act of penile penetration of her vagina in her bedroom was procured by the appellant's persistent pressure and her will was overborne by this conduct such that her consent was not freely and voluntarily given.
(c) The appellant knew that SM's consent to sexual intercourse was a direct result of pressure that he had applied.
(d) The appellant was aware that save for the persistent nature of the pressure he applied SM would not have participated in the sexual conduct with him.
57 With respect to SW, his Honour made the following findings:
(a) SW was one of 40 to 50 girls in Perth randomly targeted by the appellant to engage in chat via social media with a view to becoming friends.
(b) SW sent the appellant an indecent photograph of herself.
(c) The material was sent without any undue threat being made by the appellant.
58 In respect of the charge of possession of child exploitation material, this related to the photograph sent to the appellant by SW. In the course of his evidence the appellant conceded that he had wanted this photograph because he found it sexually arousing.
Facts in relation to the non-sexual offences
59 The facts in relation to the non-sexual offences were not in dispute. At about 11.40 pm on 8 November 2011, the appellant and the co-offender were drinking at a house in Innaloo. The co-offender was his adult aunt. She had a grievance in respect of the occupants of another house in the neighbourhood.
60 The appellant and the co-offender formed a common intention to go to the other house and threaten and intimidate the occupants. The intention was that this would be done whilst he pretended to be a police officer conducting a search for drugs. The co-offender walked to the house which was one of two adjoining duplex units. She entered the adjoining unit without the consent of the occupant and when confronted stated that she was a police informant and that the unit next door was about to be raided by police for drugs. She told the occupant not to go outside whilst the raid was being undertaken and stated that the woman next door was 'going down'.
61 Meanwhile, the appellant had left the co-offender's house dressed as a police officer. This included a black police style hat, plastic police badge and what appeared to be an earpiece. He was also carrying a 30 cm black handled knife sharpening implement. He entered the adjoining house without the consent of the occupant and declared that he was a police officer. He demanded to know where the drugs were. When told by the occupant that there were no drugs inside the premises, he said 'I don't give a fuck about what's in your house, I'm only interested in next door'. He then appeared to speak into his earpiece and stated 'breach in 5 minutes'.
62 The appellant then went to the neighbouring unit. As he did so, he met the co-offender who he grabbed and pretended to place under arrest. He asked her which house she had come out of. He then approached the house in question and entered. Inside he declared himself to be a police officer and began yelling for all of the occupants to get on the floor and place their arms behind their backs. The occupants were an adult male and adult female and a 10-year-old girl. They complied with his demands believing he was a police officer. He then demanded to know the location of their drugs.
63 The occupants became suspicious and confronted the appellant about the genuineness of his uniform. They then contacted police. This caused the appellant to leave the premises and return to the co-offender's house where she was waiting. Police attended at the co-offender's house a short time later to check on her welfare, believing that she may have been a subject of an assault. She attempted to mislead them and it was only after a search warrant was executed on 11 November 2011 that the police hat and jacket worn by the appellant were located. He was arrested the same day and when interviewed made some admissions.
Sentencing remarks
64 Having regard to his findings of fact, his Honour said that he viewed the offences against TB and SM as being the most serious. He particularly noted in regard to SM that she was only 13 at the time.
65 His Honour accepted that had the offences involving MC occurred in isolation a penalty other than one of immediate imprisonment may have been appropriate. However, it was conceded by the appellant's counsel that the only appropriate disposition, having regard to the whole of the conduct, was a term of immediate imprisonment. Nonetheless, his Honour referred to the possibility of a suspended sentence and was of the view that such a sentence was inappropriate given the seriousness of the offending conduct.
66 His Honour referred to the offence provisions as being in place for good reason because all too frequently young girls engage in sexual activity at a time when they are not emotionally and mentally mature enough to make that decision with a full appreciation of the consequences of it. His Honour said that the risks involved should have been clear to the appellant since the fact that he had been born when his mother was only 15 had been one of the causes for his own unsettled childhood. His Honour said that the appellant had used the difference in age between he and the complainants and his own level of maturity to achieve his objective with them.
67 His Honour said that the offences involving TB were particularly serious because she did not consent. He accepted that there was no forceful or violent behaviour, but she was coerced and the appellant knew that she was not consenting. He said that the appellant was a confident young man who in effect forced himself on TB. He took into account that although the first offence involving TB was charged as an attempt, it was admitted that actual penetration had occurred, however, the appellant could only be sentenced for an attempt.
68 His Honour said that the offence involving SM was also particularly serious. The reasons for this were that SM was only 13 and was particularly vulnerable having run away from home. His Honour found that having established early in their communications that SM had run away, the appellant created a belief and understanding in her that she could rely upon him. He then pressed her to have sexual intercourse notwithstanding that he knew that she was only 13. His Honour found that the appellant forced himself on her with threats of self-harm and manipulation. He did so despite the age difference, inexperience of SM and the fact that she was not enthusiastic. His Honour found that SM provided a condom only to enable what occurred to be safe after she had been pressed and her will had been overborne. The appellant had deliberately pursued a sexual encounter for his own benefit and without regard to others.
69 His Honour described the non-sexual offences as also very serious. He noted that there was a deliberate plan to go into the house to frighten the occupants and that there had been a young child present. He accepted that the offences had occurred at the instigation of the co-offender. However, the offences had involved threatening behaviour on the part of the appellant at two houses, at night time and on people who were entitled to feel safe in their homes.
70 His Honour referred to the appellant's youth and that a sentence of immediate imprisonment was one of last resort. He referred in this regard to principles set out in the Young Offenders Act and the Sentencing Act. He noted that any sentence imposed should be for the minimum amount that is required to achieve the objectives. He accepted that it was in the community's interest if the appellant could be rehabilitated.
71 His Honour had the benefit of a pre-sentence report, a psychological report and a psychiatric report. He noted that the appellant is an intelligent young man who was fully aware of the nature of the offences he was committing. In these circumstances, there appeared to be a high risk of reoffending unless appropriate treatment was obtained. In this regard his Honour noted that the pre-sentence report recorded that the appellant continued to deny his sexual offending. His Honour said that whilst the appellant had indicated a willingness to participate in programmes involving alcohol it would be difficult to receive proper treatment in relation to sexual offences whilst the appellant's denial continued. There was reference in one of the reports to the appellant having indicated that he intended to appeal against his convictions and his Honour noted that this may act as an impediment to participation in programmes.
72 The report of the psychiatrist placed the appellant into a high risk category of sexual reoffending. A therapeutic trial with anti-depressants was recommended as well as counselling to address unresolved personal issues. His Honour noted that this required cooperation and willing participation in order to be successful. His Honour noted that the psychiatric report said that there was inadequate information to make a clear assessment of whether there was sexual deviance. However, there was a presence of coercion, problems with coping with stress, problems with substance abuse, non-sexual criminality, extreme minimisation or denial of sexual violence, problems with self-awareness, violence and suicidal ideation and problems with planning. His Honour expressed a hope that these issues would be addressed in programmes that would be provided to the appellant.
73 His Honour took into account that the appellant had had a troubled childhood. He had been born of a very brief liaison between his parents who were not in a relationship. His mother was very young when he was born and had little capacity to take on the responsibilities of a parent. From a young age he had been exposed to domestic violence, substance abuse and criminality. Throughout his childhood he felt rejected, neglected and abandoned by his mother. She subsequently entered into another relationship which produced further children but the appellant did not feel accepted by his step-father. He had little positive contact with his biological father. Due to strained and conflicted family relationships he had been provided with short term emergency accommodation by the Department for Child Protection from the age of 13. Many of these placements failed due to the appellant's poor behaviour or non-compliance. However, the appellant was intelligent and had done well at school. He had expressed an intention to complete Year 11 and 12 schooling and pursue university studies.
74 The appellant had a prior record of offending for offences of breaching a violence restraining order, making a threatening statement, fraud, possession of child exploitation material and stalking. All of these offences, which were committed in 2010, were dealt with on 17 December 2010 by a 9 month youth community based order.
Conviction - Proposed grounds of appeal
75 The appellant's case refers to three proposed grounds of appeal against conviction. However, he raised a number of additional issues on the hearing of the application for leave to appeal.
76 The first thing to note is that the appellant pleaded guilty. It is no easy matter for an appellant to persuade a court that a conviction based on a plea of guilty should be set aside: Borsa v The Queen [2003] WASCA 254; Hogue v The State of Western Australia [2005] WASCA 102. An appellate court will approach an attempt to set aside such a conviction with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing).
77 Before an appellate court will set aside a conviction based on a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice. There are some well recognised categories of circumstances where such a conviction will be set aside. They include where the appellant did not understand the charge, did not intend to plead guilty, could not on the facts be guilty at law or where the plea was obtained by fraud, intimidation or the like: Borsa. None of those circumstances are claimed here, but it is possible for a miscarriage to occur in other ways.
78 Ground 1 asserts that the charges in respect of MC were duplicitous. The appellant explained that what he meant by this was that one incident had been made the subject of several charges. He submitted that it was unfair for the prosecution to have preferred multiple charges in respect of each 'change of sexual position'.
79 Each act of penetration or attempted penetration is a separate offence and must be the subject of a separate charge. This is not affected by the fact that individual acts may have occurred close in time to each other. There was no duplicity in preferring a charge for each act of penetration, in fact separate charges avoid any duplicity: See S v The Queen [1989] HCA 66; (1989) 168 CLR 266. The fact that separate offences may have arisen during the same episode is one that may be properly taken into account in sentencing, as occurred here. This ground is without merit.
80 Ground 2 is that the charges constituted a miscarriage of justice because they contradicted the legislative intent of the offence provisions. The appellant's argument is that the purpose of provisions dealing with the sexual penetration of children under the age of 16 is to protect them from adults. He argued that given that he was also a young person he should not have been charged with the offences.
81 There are several things that need to be said about this argument. First, whilst it is true that the appellant was also young at the time of the offences he was in each case older than the complainant. Findings were also made that he was the dominant person in respect of each complainant. Secondly, there is nothing to justify a conclusion that the offence provision does not apply to offenders who are themselves young. The fact that a lower penalty is provided for offenders who are under 18 indicates that it was contemplated that the offence of sexual penetration could be committed by a young person. Absence of a significant age disparity simply means that this particular aggravating feature is not present; that is a matter relevant to sentence. Thirdly, insofar as it is suggested that the discretion to prosecute was not used appropriately, that is not generally a matter for examination by the courts: Maxwell v The Queen (1996) 184 CLR 501, 534.
82 Ground 3 is that the prosecution was brought out of malice. The appellant said that the matters relating to MC had been reported to the police approximately 12 months before he was charged. He said that the police did not seek a statement from the complainant until many months later, after TB and SM had come forward. He said that the belated decision to charge him in respect of MC appeared to have been motivated by a desire to bolster the case in respect of the other complainants.
83 This is speculation on the part of the appellant. There is a power to stay proceedings as an abuse of process where they are brought for an improper purpose: Walton v Gardiner (1993) 177 CLR 378. But that power will only be exercised where there is clear proof of such a purpose. In any event, there is a more obvious explanation for the delay. Bearing in mind the appellant's younger age at the time when the offences against MC first came to light and the then apparently isolated nature of those offences, a view may well have been taken that it was unnecessary to prefer criminal charges. That view may have justifiably changed when the subsequent complainants came to light.
84 The appellant also argued that he had been prejudiced because he had been charged with offences of sexual penetration of a minor contrary to s 321 rather than the more serious offence of sexual penetration of a minor without consent contrary to s 326 of the Criminal Code. His argument was that in circumstances where the prosecution was maintaining that the offences had occurred without consent, the appropriate charge was under s 326. Had he been charged with the more serious offence any lack of consent would have been an element of the offence, which if not proved would have entitled him to an acquittal of that offence. By charging him with offences under s 321 but maintaining that the offences had occurred without consent, the appellant argued that he had been denied the opportunity to bring an appeal against conviction (though he had done so in any event).
85 The appellant's argument is misconceived. Had he been charged under s 326 and the element of consent not been proven at a trial he would have been liable to be convicted of the alternative offence under s 321. Given his admissions in regards to all other elements of the offence such a conviction would have been inevitable. There is no reason why the prosecution could not prefer charges under s 321 but allege as part of the factual circumstances that the offences were non-consensual: See s 7(3)(b) Sentencing Act 1995 (WA). If that fact is not admitted it can be determined at a trial of issues, as in fact occurred here. The same standard of proof applied to that fact whether it was an element of an offence under s 326 or an aggravating factor in respect of a s 321 offence. Far from being prejudiced by the course that was taken, it was beneficial to the appellant. This is because had he been charged under s 326 and convicted he would have faced a much higher maximum penalty.
86 In my view, none of the proposed grounds of appeal against conviction has any reasonable prospect of success. In those circumstances, an extension of time to appeal against conviction should be refused.
Sentence - Proposed grounds of appeal
87 The appellant's proposed grounds against sentence can be summarised as follows, taking into account elaboration provided at the hearing:
(1) that the individual sentences were manifestly excessive and the total effective sentence was disproportionate to the total criminality;
(2) that the sentencing judge made factual errors in regard to his assessment of the circumstances of the offences;
(3) that the sentencing judge failed to properly inform himself regarding contemporary adolescent behaviour and the use of social media and electronic communication;
(4) that the sentencing judge erred in regard to his assessment of the primary purpose of s 321;
(5) that the sentencing judge failed to take into account the medical circumstances of the appellant; and
(6) that the sentencing judge failed to apply principles of parity when imposing sentences for the aggravated burglary offences.
88 The appellant explained that the last ground related to the fact that his adult aunt, who was a co-offender in respect of the aggravated burglaries, had received a non-custodial sentence. I will deal with that proposed ground notwithstanding that it refers to offences that were not covered by the notice of appeal.
89 The appellant has subsequently sought to add further grounds of appeal. These relate, first, to victim impact statements from the complainants. Secondly, he seeks to add grounds in relation to his inability to participate in programmes and thereby obtain parole. I will also deal with those proposed grounds.
Appeal against sentence - Proposed ground 1
90 To determine whether a sentence is manifestly excessive it is necessary to take into account the maximum sentence prescribed by law, the standards of sentences customarily imposed with respect to the crime, the place that the criminal conduct occupies on the scale of seriousness of offences of this type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).
91 The maximum sentence for each of the offences is set out in the table that appears at the start of these reasons. As to a usual range, there is no established range for sexual offences because the circumstances of the offence and the personal circumstances of the offender can vary widely. It is even more problematic to draw comparisons with other cases given that the appellant was a juvenile to whom special considerations applied.
92 The appellant referred to a number of cases in his submissions for the purposes of comparison. Those cases were R v Avery [2002] WASCA 136; Van Doorn v The State of Western Australia [2008] WASCA 177; The State of Western Australia v SJH [2010] WASCA 40; Simon v The State of Western Australia [2009] WASCA 10; Marris v The Queen [2003] WASCA 171; The State of Western Australia v Lee [2008] WASCA 150; JAF v The State of Western Australia [2008] WASCA 231; Indich v The Queen [1999] WASCA 146; Hine v The State of Western Australia [2010] WASCA 216; RP v The Queen [2008] NTCCA 8; CJ v The State of Western Australia [2009] WASCA 42; Germain v The State of Western Australia [2004] WASCA 293; Riggall v The State of Western Australia [2008] WASCA 69; Deering v The State of Western Australia [2007] WASCA 212; R v Chilvers [2003] WASCA 87; The State of Western Australia v ABM [2004] WASCA 90; R v Hunt [2002] WASCA 324.
93 It is unnecessary to refer to the facts of all of those cases. They involved differing numbers of charges, victims and age difference. The only significant feature that can be drawn from them is that offences involving a single victim where the offending occurred in the context of boyfriend-girlfriend relationship and where the age difference was not large often attracted a suspended sentence. However, it is not possible to conclude that any of the individual sentences imposed here were unusually high.
94 The most significant factor here was the circumstances of the offences. Based on the findings of the sentencing judge the appellant had engaged in a pattern of behaviour. This involved targeting girls who were younger and previously unknown to him. He then engaged in emotional coercion and persistence to obtain their compliance. Other than in the case of MC this did not occur in the context of a genuine relationship.
95 The appellant sought to argue that in respect of each complainant there were features that lessened the seriousness of the individual offending. As regards the complainant MC, the appellant submitted that given the factual findings a sentence of immediate imprisonment was excessive. He notes that Birmingham DCJ acknowledged that the offences involving MC would not have warranted an immediate term of imprisonment if they had stood in isolation. That may be accepted but it does not establish error. The offences involving MC received comparatively lower terms of 9 months' imprisonment and each of those sentences was made concurrent. Whilst those sentences may justifiably have been suspended had they stood in isolation, the fact is they did not. It was not possible to suspend those sentences in circumstances where the appellant was required to serve a term of imprisonment on other offences that were not suspended: s 76(3) Sentencing Act.
96 As regards SW, the appellant also submitted that the offences did not justify a sentence of immediate imprisonment. Again, the two offences in question resulted in wholly concurrent terms of 6 and 4 months. It might have been appropriate to impose suspended sentences for these offences if they had stood in isolation, but that is not to the point.
97 As regards the sentences imposed for the offences involving TB, the appellant argued that the sentence of 18 months on charge 372/11 was excessive because this charge was an attempt which carried a maximum penalty of 3½ years. Of course, as a matter of fact, the appellant admitted, and the sentencing judge found, that actual penetration had occurred, but the appellant was only sentenced for an attempt. There was a second charge in relation to TB that related to the digital penetration. The sentence for the second charge of 12 months was made wholly concurrent. The sentence of 18 months on the first charge may have been high, but neither of the individual sentences could be seen as being so high as to indicate error in the exercise of sentencing discretion.
98 As regards the sentence imposed for the offence involving SM, the appellant submitted that the sentence of 12 months' imprisonment cumulative was excessive because SM was a 'willing participant' who provided the condom and had engaged in suggestive text messages. This does not accurately reflect the findings made by the sentencing judge. Whilst his Honour accepted that SM had provided the condom and had participated in text messaging, he did not find that she was a willing participant. To the contrary, he considered that she had been subjected to pressure and manipulation. Seen in that light the sentence imposed for this offence could not be seen as being manifestly excessive.
99 As regards totality, the question is whether the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA).
100 It is clear from the structure of the sentences that the sentencing judge made many of the sentences concurrent primarily to ensure that the total effective sentence was not disproportionate. In doing so he paid appropriate regard to the principle that a sentence of imprisonment on a young person should be for the shortest period necessary. The aggregate sentence is not disproportionate to the appellant's offending when regard is had to full extent and circumstances of that offending.
Appeal against sentence - Proposed ground 2
101 The appellant submitted that his Honour made errors of fact in relation to TB and SM. As regards TB, it was submitted that the appellant had come into possession of information which contradicted the evidence that TB had given on oath at the trial of issues. In essence, the appellant's argument related to fresh evidence rather than an error by the sentencing judge. This fresh evidence was the subject of the first two aspects of his applications filed on 13 May 2013. Accordingly, it is necessary to deal with those applications now.
102 In support of his applications the appellant swore an affidavit in which he states that he has been informed by CR that TB had admitted to him that she had in fact consented to sex. Annexed to the affidavit is a statutory declaration from CR. It states that CR was the former boyfriend of TB and that they had communicated by way of Facebook about the appellant. CR states that TB sent a message to him to the effect that when the appellant asked her if she would like to have sex her answer was 'yes'. CR states that he does not have the messages and has tried to recover them from his Facebook account but has been unable to do so. His account of the effect of the exchange relies on his memory and does not purport to be a verbatim account. There is no indication of when the exchange occurred other than being 'a few years back'.
103 In his affidavit the appellant also states that the meeting at the park in Spalding had been arranged by TB and not her friend. He states that had the friend been called to give evidence he believes she would have confirmed this and that would have cast doubt on TB's credibility. There is, however, nothing to indicate what the friend would have said had she been called one way or the other. No effort was made to call her at the trial of issues, even assuming that such evidence was admissible.
104 The appellant's application for orders that summonses issue to obtain evidence from CR and TB's friend and to obtain documents as to communications between various people is misconceived. An appeal is not an opportunity to seek new material with a view to retrying the issues on a different basis. The general rule is that an appeal court must decide an appeal on the evidence and material before the court below: Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] - [30] (Newnes JA, Pullin & Mazza JJA agreeing) and s 39(1) Criminal Appeals Act.
105 There is a power to admit other evidence on an appeal, but it is circumscribed by longstanding principles arising from the nature of an appeal. In The State of Western Australia v Munda [2012] WASCA 164, [198] - [203] Buss JA reviewed decisions of this court as to the test to be applied in determining whether additional evidence should be admitted under s 40(1)(e) of the Criminal Appeals Act 2004 (WA). The test in an appeal against sentence is whether if the evidence had been before the sentencing judge a different sentence should have been imposed: Wheeler v The Queen [No 2] [2010] WASCA 105 and The State of Western Australia v Hyder [2011] WASCA 256.
106 In the present case, it is not reasonably open to infer that the information contained in the appellant's affidavit would have made any difference to the outcome. Whilst it is open to put a prior inconsistent statement to a witness and to prove that statement if it is not admitted (s 21 Evidence Act 1906 (WA)), such a statement is only admissible in regards to the credit of the witness, not as evidence of the truth of its contents: Wilson v The Queen [1985] WAR 279. Thus even if the grounds for leading evidence of a prior statement by TB were made out that evidence could not be used as evidence that she did consent to the acts of sexual penetration.
107 The possibility that evidence of a prior inconsistent statement could have affected his Honour's findings as to TB's credibility is negated when account is taken of the whole of the evidence. It was put to TB in cross-examination that she had in fact consented to sex. It was put to her that she had only changed her position after what had occurred became widely known. It was put to her that she had been bullied and ridiculed and this had caused her to say that what occurred was non-consensual and to report the matter to the police. She consistently, clearly and repeatedly rejected these suggestions. His Honour found her to be an impressive witness who did not prevaricate or attempt to reconstruct things she could not remember. In contrast, his Honour did not find the appellant's evidence in relation to TB either credible or convincing.
108 There was ample opportunity to test the credibility of TB at the trial of issues and that opportunity was fully availed of. The sentencing judge had the opportunity to assess the credibility of TB and also that of the appellant. Generally speaking, fresh evidence on a sentence appeal that relates only to the credibility of a witness called at a trial of issues is unlikely to meet the test referred to in Wheeler unless it is clear, unequivocal and of such a nature as to be likely to have affected the factual findings in some significant respect. The matters raised by the appellant in his affidavit are vague or speculative and raise no reasonable possibility that the sentences imposed would have been different. I am not satisfied that the test required for s 40(1)(e) of the Criminal Appeals Act has been met.
109 The only other factual error which the appellant asserts is as regards his Honour's finding that SM only consented as a result of the appellant's persistence. The appellant submits that this is a finding that could not reasonably have been made given that SM provided the condom and was 'sexually assertive on Facebook both before and after the meeting'.
110 The matters referred to by the appellant represent only a small portion of the evidence of SM and they are taken out of context. SM's evidence was that she had felt frightened and dominated by the appellant. She had obtained the condom not because she wanted to participate in sex but because she wanted to ensure that even though she had been pressured into having sex it would occur safely. As regards Facebook exchanges, it is apparent when read in their entirety that it was the appellant who initiated the subject and pressed it when SM showed reluctance. The appellant concedes that he has no information that could prove that SM gave false evidence. It was clearly open to his Honour to accept that evidence and make the finding that he did.
111 This ground has no reasonable prospect of success and I would refuse leave in respect of it.
Appeal against sentence - Proposed ground 3
112 The appellant's argument is that the sentencing judge failed to understand the significance of the Facebook and text communications between the appellant and the complainants. It is submitted that his Honour accepted the State's submissions that the appellant was engaged in grooming and manipulation. It is said that had his Honour had a better understanding of social media and how it was used by young people he would not have drawn such adverse conclusions.
113 This ground relates to the third aspect of the appellant's applications of 13 May 2013. That is, his application for an order for the appointment of a person with expert knowledge of social media to act as an assessor to the court. There is a power under s 40(1)(e) of the Criminal Appeals Act to make an order appointing a person with special expert knowledge to act as an assessor. It is far from clear that the habits or behaviour of young people in regards to social media are recognised fields of special expert knowledge. In any event there are other impediments to this application.
114 The appellant was represented by experienced counsel on the trial of issues. It was not suggested at that time that expert evidence was required in order to understand the import and significance of the Facebook and text communications. The appellant is bound by the way in which his case was presented and cannot raise new issues now.
115 In any event, it is not apparent that the findings of the sentencing judge were unsupported by the evidence before him. It was not the form of the communications but their content that was significant. There was no doubt as to the meaning of the messages. The use of abbreviations, contractions and virtual actions was explained. Furthermore, the complainants gave evidence in regards to the communications and the impact that they had.
116 I have taken the opportunity to examine the extensive Facebook exchanges between the appellant and SM. When read in their entirety they amply support the conclusion that the appellant was engaged in manipulative behaviour. He maintained control by becoming angry, threatening to withdraw or threatening to tell others what had occurred.
117 This ground has no reasonable prospect of success and leave in respect of it should be refused.Appeal against sentence - Proposed ground 4
118 The appellant argues that his Honour erred in his understanding of the legislative intention of the offence provision. In particular, it is submitted that because his Honour referred to the purpose being to protect 'girls from themselves', this indicated a failure to understand that the legislation applied equally to boys and girls. The appellant argues that because he was himself a juvenile at the time of the offences his Honour's approach was inappropriate.
119 The appellant particularly relied upon statements made by Wheeler JA in Marris,SJH and Riggall. In Marris [12] her Honour said:
The history of s 321 demonstrates the understanding of a legislature that the reason that absence of consent should not be an element of offences of this kind is that a child is not in a position to assess fully the meaning and consequences of sexual activity. It is clear that Parliament understood that both for that reason, and because of the disparity and power (physical, social, emotional and so on) which exists between a child and an adult, the concept of a child 'consenting' to sexual intercourse with an adult should not find a place in the legislation.
120 In Riggall her Honour adopted what she had said in Deering [17] - [18] that whether or not sexual activity involving a child had some element of abuse was a concept of considerable importance in relation to sentencing. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or a pattern of criminal behaviour, or of a betrayal of trust, the greater the culpability.
121 None of the statements of principle referred to above are inconsistent with the sentencing judge's findings or sentencing remarks. His references to 'girls' and the purpose of the legislation needs to be understood in the context that all of the complainants in this case were girls. His Honour did not fail to appreciate that the appellant was also a young person at the time that the offences were committed. That was certainly a relevant factor. But it was also relevant that in each case the appellant was older than the complainant, and in respect of SM significantly so. There was also an element of abuse in the manipulation and pressure that was used by the appellant.
122 This ground has no reasonable prospect of success and leave in respect of it should be refused.
Appeal against sentence - Ground 5
123 The appellant submits that the sentencing judge failed to adequately take into account his medical circumstances. In particular, it is submitted that his Honour failed to take into account that the reports indicated that the appellant was likely to have been suffering a depressive illness at the time of the offending.
124 The psychiatric report of Dr S D Febbo was that the appellant's history was in keeping with a scatter of depressive symptoms of fluctuating severity. The appellant fulfilled the diagnostic criteria required for a dysthymic disorder. In this condition there are relatively chronic depressive symptoms including intermittent low mood in addition to other symptoms such as episodes of poor appetite, lethargy and impairment in relation to self-esteem and hopelessness. Dr Febbo considered that this disorder was closely related to the presence of marked personality pathology. In this case, the appellant met the diagnostic criteria required for borderline personality disorder with significant anti-social personality traits. A borderline personality disorder is characterised by a pervasive pattern of instability in interpersonal relationships, self-image and mood in addition to marked impulsivity.
125 The psychological report of Ms T Oliveri concluded that the appellant was solely focused on his own sexual gratification with no intention of developing healthy relationships. He appeared to be using sexual contact as a maladaptive coping mechanism to self-sooth, improve his mood and escape and distract from his problems. He tended to minimise his offending and deny aspects of it.
126 The sentencing judge made detailed reference to the reports. In particular, he noted that the appellant displayed symptoms of depression and that he had unmet treatment needs.
127 Mental illness can be relevant to sentencing in a number of different ways. The issue has been considered by this court in Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; F v The State of Western Australia [2008] WASCA 100 (2008) 184 A Crim R 125; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105 and Gok v The Queen [2010] WASCA 185. It is unnecessary to restate those principles. However, it must be recognised that the mitigating effect of mental illness may be offset by other factors. An example of this is where a particular condition or illness raises the risk of reoffending: Channon v The Queen [1978] FCA 16; (1978) 33 FLR 433, 436 - 437 (Brennan J).
128 There is no basis for concluding that the sentencing judge failed to take into account the contents of the psychiatric and psychological reports nor is there any basis for concluding that the sentence is inconsistent with a proper regard for those reports.
129 This ground has no reasonable prospect of succeeding and leave in respect of it should be refused.
Appeal against sentence - Ground 6
130 The appellant's argument is that the sentences imposed for the non-sexual offences were not consistent with the sentence imposed on the co-offender. The co-offender received a 12 month intensive supervision order whereas the appellant received terms of imprisonment.
131 Other than the fact that the co-offender was adult no other information about her personal circumstances is available. There are, however, a number of obvious differences between the appellant and the co-offender. First, whilst it appears to have been the co-offender's idea, the appellant played the principal role. Secondly, the offences occurred whilst the appellant was on bail. Thirdly, the co-offender was dealt with in the Magistrates Court which was likely a reflection of her more limited role.
132 The parity principle requires that parties to the commission of an offence should, if other things are equal, receive the same sentence. But other things are not always equal and one of the factors which must be taken into account is the part that an offender played in the commission of the offence: Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ). The question is whether disparity in sentence is capable of giving rise to a justifiable sense of grievance: Lowe (610). Whether there is a justifiable sense of grievance has to be determined by taking into account the application and effect of relevant sentencing principles, including the totality principle: Nguyen v The State of Western Australia [2009] WASCA 81, 27.
133 In this case there is insufficient information available to determine whether the co-offender was charged with the same offences as the appellant. However, even assuming that she was, the differences in their roles and the fact that the appellant was on bail at the time, justifies the different sentences, notwithstanding that he was a juvenile to whom special considerations applied. Having regard to the fact that the sentences imposed on the appellant were all made entirely concurrent he could have no justifiable sense of grievance.
134 This ground has no prospect of success and leave in respect of it should be refused.
Victim impact statements
135 Prior to the hearing of the appeal the appellant sought leave to read the victim impact statements of MC and TB. He was unable to do so prior to the hearing and was given leave to make further written submissions once he had had an opportunity to do so. In his submissions the appellant stated that claims were made in the victim impact statement of TB that should not have been accepted by the sentencing judge unless they were substantiated by evidence. It was also submitted that the sentencing judge should have had regard to the wishes of SM as expressed in her evidence in light of her not submitting a victim impact statement.
136 As regards the victim impact statement of TB, no objection was made to the contents of this statement in the sentencing proceedings. As I have previously noted, the appellant was represented by experienced counsel. If the contents of the statement were objectionable it is reasonable to expect that an objection would have been made at the time. A sentencing judge is entitled to accept victim impact statements regarding the impact of an offence in the absence of any dispute.
137 As regards SM, the appellant points to her evidence at the trial of issues that she was initially reluctant to make any complaint about what had occurred. She said this was because she did not like opening up. She also said that she did not want the appellant going to gaol or getting into trouble. That evidence was before the sentencing judge. It does not acquire any greater weight or significance because there was no victim impact statement from SM. The reasons why a victim may or may not complete a victim impact statement are many and varied. It is pointless to speculate on why a victim impact statement has not been submitted and it would have been wrong of the sentencing judge to do so.
138 The appellant's application to add further proposed grounds in respect of the victim impact statements should be refused because those grounds have no merit.
Availability of programmes
139 At the hearing of the appeal, the appellant said that he had not been permitted to do any rehabilitative programmes whilst in custody. The effect of this had been that his application for parole was refused. The appellant argued that in consequence he was serving more time in prison than might reasonably have been expected at the time he was sentenced.
140 In response to an enquiry from the court, the Department of Corrective Services confirmed that the appellant was assessed for treatment needs on 4 October 2012. The assessment officer recommended him as suitable for a cognitive skills programme, a high intensity addictions offending programme, a violent offender's intensive programme and a sex offender's intensive programme. A management plan was formulated on 22 October 2012. As the appellant's sentence was backdated to 16 November 2011, the earliest date on which he would be eligible for release on parole was 16 February 2013. On this basis he was scheduled for one programme only - a violent offender's treatment programme. Other programmes were unavailable due to the timing of the earliest release date.
141 The appellant was transferred to Albany Regional Prison in order to undertake the violent offender's treatment programme. However, it was deferred and subsequently cancelled by Albany Regional Prison staff on 5 November 2012. The reasons for this are unclear. However, it has been confirmed that the appellant has not refused to undertake any programmes but none have in fact been completed.
142 The information provided by the Department of Corrective Services is that because the appellant subsequently appealed against his convictions he is considered ineligible for programme participation. Exactly why an appeal against conviction should preclude participation in programmes is not clear. Given that participation in programmes is often considered a prerequisite for the grant of parole, a refusal to allow a prisoner to participate in a programme because he has a pending appeal may act as a strong incentive not to pursue his appeal rights. This has the potential to work an unfairness. However, it is not the role of the courts to administer the prisons or the parole system.
143 The appellant submits that the sentencing judge assumed that programmes would be available and that the appellant would be released on parole. It is submitted that the sentence his Honour imposed was based upon those assumptions. The appellant says that now it is apparent that the programmes have not been made available and that he is past his eligibility date, the assumptions on which he was sentenced have proven to be erroneous. For these reasons he submits that the total effective sentence imposed upon him should now be viewed as being too long.
144 In sentencing an offender to imprisonment, the length of the term imposed must always be the sentence that is an appropriate reflection of the criminality of the offending conduct. It is an error for a sentencing judge to either reduce or extend a term of imprisonment based upon an assumption that the offender will be paroled (or not paroled). See Swain (1989) 41 A Crim R 214; Shaw (1989) 39 A Crim R 343; Hubbard v Fisher [2001] WASCA 182.
145 There is no reason to suppose that the sentencing judge imposed a sentence that was longer than was otherwise appropriate to take into account an assumption that the appellant would be released on parole. In fact, whilst his Honour expressed a hope that the appellant would undertake programmes he specifically referred to the possibility that that might not occur.
146 The appellant's application to add further proposed grounds of appeal in respect of the availability of programmes should be refused. Such grounds have no reasonable prospect of success.
Further written submissions
147 Following the hearing of the application for leave to appeal the appellant sought an opportunity to make further submissions. He was permitted to file further written submissions, which he did on 7 August 2013.
148 In those written submissions the appellant elaborated on issues raised in his proposed grounds of appeal. I have taken the submissions into account in dealing with the grounds. He also raised an entirely new matter which he referred to as an 'evidentiary issue'. He submitted that 'propensity (similar fact) evidence relating to MC, TB and SM was inadmissible in that the three complainants had sufficient relationship to each other, had opportunity and motive for concoction'.
149 The trial of issues occurred because there was a dispute as to whether each of the complainants had freely and voluntarily consented to the relevant sexual acts. The evidence of MC, TB and SM as to what occurred and whether they consented was obviously relevant and admissible in respect of the charges that related to each of them.
150 In making findings in regard to whether each complainant consented, his Honour referred to the evidence of the particular complainant concerned and the evidence of the appellant. There is nothing to suggest that the evidence of one complainant was relied upon as propensity evidence in making findings in respect of another. The fact that on the findings made there was a pattern of behaviour was properly a matter to be taken into account in sentencing.
151 The appellant's complaint appears to be related to the credibility of MC, TB and SM rather than the admissibility of their evidence. His argument is that these complainants should not have been believed because the possibility that they had colluded to give false accounts of what had occurred could not be excluded.
152 Each of MC, TB and SM was cross-examined by the appellant's counsel at length and in detail. It was put to each of them that they had been influenced by hearing what others were saying about the appellant. It was not put to them that they had colluded together to perpetrate false stories.
153 In submissions to the sentencing judge the appellant's counsel referred to the fact that MC, TB and SM knew each other and each of them knew something of the allegations relating to the others. This was said in response to a submission from the prosecutor that the complainants had given evidence that was consistent. Insofar as this was a suggestion of collusion then there is no reason to think that it was not taken into account by his Honour. The findings made regarding the credibility of the complainants were clearly open on the evidence.
154 The appellant also submits that other evidence relied upon by the State at the trial of issues was inadmissible. He refers to three matters:
(1) evidence of uncharged consensual sexual acts between the appellant and MC that occurred subsequent to the acts the subject of the charges;
(2) evidence of an incident where the appellant stood between MC and a bathroom door during a heated argument;
(3) evidence relating to other criminal offences committed by the appellant.
155 As regards the first two items, this evidence was led without objection at the trial of issues. Indeed the evidence of other consensual acts was relied upon by the appellant in support of his contention that MC had always been a consenting party. The appellant's complaint relates more to what inferences the State said could be drawn from the evidence. No error by the sentencing judge is identified or established.
156 As regards the third item, the prosecutor sought to tender on the trial of issues the statement of facts relating to the non-sexual offences referred to earlier in this judgment to rebut a claim made by the appellant that he was not a violent person. The statement was marked for identification and there is nothing to suggest that his Honour took it into account in making findings following the trial of issues. Those facts were admitted for the purposes of sentencing on the non-sexual offences.
Conclusion
157 Where leave to appeal is not granted in respect of any of the proposed grounds of appeal the appeal is taken to have been dismissed: s 27(3) Criminal Appeals Act. I would make the following orders:
1. The application for an extension of time to appeal against conviction (CACR 49/13) be refused.
2. The applications for orders pursuant to s 40(1) of the Criminal Appeals Act dated 13 May 2013 be dismissed.
3. Leave to appeal on all grounds of the appeal against sentence (CACR 229/12) be refused.
4. The appeal against sentence be dismissed.
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