Lawrence v The State of Western Australia - [2005] WASCA 14

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LAWRENCE -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 14

CORAM: MALCOLM CJ
MURRAY J
ROBERTS-SMITH J

HEARD: 1 NOVEMBER 2004

DELIVERED : 8 FEBRUARY 2005

FILE NO/S: CCA 57 of 2004
CCA 140 of 2004

BETWEEN: ROSS DENNIS LAWRENCE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 165 of 2003

Catchwords:

Criminal law - Appeal - Verdicts - Whether unsafe or unsatisfactory - Sexual offences - Improbability of offences occurring as alleged - Whether nature and quality of complainant's evidence such that it was not open to jury to be satisfied beyond reasonable doubt of applicant's guilt

Criminal law - Sentence - Appeal - One offence of indecent dealing with child between 13 and 16 years of age - 9 offences of sexual penetration of child - Aggregate term of 8 years imprisonment - Whether sentence manifestly excessive - Whether sentences should have been concurrent - Totality - Sentencing Legislation Amendment and Repeal Act 2003 (WA) - Whether sentences reduced by onethird

Legislation:

Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1

Result:

Application for leave to appeal against conviction dismissed
Application for leave to appeal against sentence granted
Appeal allowed
Sentences quashed and new sentences substituted

Category: B

Representation:

Counsel:

Applicant: Mr R I M Bannerman
Respondent: Mr R E Cock QC & Mr C G Astill

Solicitors:

Applicant: Sicard Crisp & Bannerman
Respondent: State Director of Public Prosecutions

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

Chidiac & Asfour v The Queen (1991) 171 CLR 432
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
McCarrol v The Queen [2004] WASCA 131
Queen Caroline's case [1821] 1 State Trials (NS) 949
R v B (1996) 88 A Crim R 91
R v Karpany [1937] SASR 377
R v Williamson [1972] 2 NSWLR 281

Case(s) also cited:

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Jarvis v The Queen (1993) 20 WAR 201
Kennedy v The Queen, unreported; CCA SCt of WA; Library No 6116; 2 December 1985
Mill v The Queen (1988) 166 CLR 59
Osland v The Queen (1998) 197 CLR 316
Perkovic v The Queen, unreported; CCA SCt of WA; Library No 5814; 22 May 1985
Postiglione v The Queen (1997) 189 CLR 295
R v Everett (1994) 73 A Crim R 550
R v Ward (1999) 109 A Crim R 159
R v White [2002] WASCA 112
Salihos v The Queen (1987) 78 ALR 509

MALCOLM CJ: I have had the advantage of reading in draft the reasons to be published by Roberts‑Smith J. I agree with his Honour that none of the grounds of appeal against conviction have been made out, with the consequence that the application for leave to appeal should be dismissed.
I also agree with Roberts-Smith J that neither the individual sentences, nor the aggregate of 8 years' imprisonment was disproportionate to the criminality of the individual offences or to his overall criminality, notwithstanding the mitigating factors on which he relied.
In sentencing the applicant, however, the learned Judge was in error in failing to apply Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) which came into operation on 31 August 2003. The reasons for this have been clearly stated by Roberts‑Smith J. The consequence is that leave to appeal against sentence should be granted, the appeal allowed and the sentences imposed adjusted to sentences of 1 year 4 months on count 1, 2 years on count 2 and 4 years on each of counts 3 to 10 inclusive, giving an aggregate of imprisonment of 5 years and 4 months.
MURRAY J: I agree with Roberts‑Smith J that, for the reasons given by his Honour, leave to appeal against the convictions should be refused. I also agree, again for the reasons given by his Honour, that leave to appeal against the sentences should be granted and the appeal allowed. The sentences imposed by the trial Judge should be quashed and those proposed by Roberts Smith J should be substituted.
ROBERTS-SMITH J: On 16 April 2004 following a trial before her Honour Judge Yeats and a jury in the District Court at Perth, the applicant was convicted of one count of indecently dealing with a child between the ages of 13 and 16 years, contrary to s 321(4) of the Criminal Code ("the Code") and nine counts of sexually penetrating a child between 13 and 16 years of age contrary to s 321(2) of the Code.
On 1 June 2004 the applicant was sentenced to an aggregate term of 8 years imprisonment, with an order that he be eligible for parole.
On 7 May 2004 the applicant filed a notice of appeal against the convictions. An amended notice of appeal against conviction was filed on 9 August 2004.

In the meantime, the applicant had filed a notice of appeal against sentence dated 6 August 2004. That, of course, was well out of time. An appeal (or application for leave to appeal) against conviction or sentence must be lodged within 21 days of the date of conviction or sentence (s 695 of the Code).
Also on 9 August 2004 the applicant filed a notice of extension of time to appeal against sentence. The grounds of that application (supported by an affidavit of the applicant filed 9 August 2004) were that he instructed his solicitor to lodge an appeal against sentence shortly after the sentence was imposed by her Honour, but was subsequently advised by the solicitor that the documentation had been incorrectly prepared and it was still necessary to file an proper notice in respect of the appeal against sentence.
The notices of appeal against conviction and against sentence ought properly to have been notices of application for leave to appeal against conviction and sentence (s 688(1)(b) and (1a)(b) respectively).
By consent, at the hearing of the applications, we granted the application for extension of time, ordered that the notices of appeal against conviction and sentence respectively dated 7 May 2004 and 6 August 2004 be treated as applications for leave to appeal and that the notice of appeal against conviction filed 9 August 2004 be taken as the amended notice of application for leave to appeal against conviction.
There are four proposed grounds of appeal against conviction. I shall refer to them simply as the grounds of appeal. They plead that:
"1.The convictions should be set aside as they were against the weight of evidence and upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering the whole of the evidence the convictions are unsafe and unsatisfactory.
3.In particular, on the video record of interview it was put to the Appellant [sic] by the interviewing officers that he had purchased a number of items for the complainant creating an impression with the jury of bribery when the State failed to lead any evidence from any of the alleged witnesses to such purchases notwithstanding the fact that the State called them as witnesses. The jury heard statements on the video record of interview of supposed statements by three parties for the purchase of presents for the complainant with these allegations against the appellant [sic] being of a prejudicial nature and which were not supported by any evidence leading to a miscarriage of justice.
4.The learned trial Judge erred in her direction to the jury as follows: in directing the jury about the video record of interview she created an impression that the appellant's [sic] comments about a telephone call had special significance to the question of guilt when that is [sic: was] a matter of fact for the jury alone."
A number of particulars were given in respect of ground 2.
The complainant was born on 10 May 1985 and so was 13 years of age at the end of 1998. She is the eldest of four children. She has three brothers who were born in April 1986, January 1994 and July 1996.
The family lived in New Zealand until migrating to Western Australia in November 1997.
Prior to them migrating to Australia, the applicant's brother had been living in a de facto relationship with the complainant's mother and he moved to Australia with her and the children.
They first lived at Brentwood but then moved to an address in Leda.
The complainant commenced Year 8 at Rossmoyne High School but because of the change of address, had to go to Kwinana Senior High School when the family moved to their address in Leda.
The applicant, who had been staying with the family in New Zealand, also moved with them to Australia and into the house at Leda.
The complainant's mother and the applicant's brother shared the main bedroom. The complainant shared her room with her youngest brother Cody. He was 1‑1/2 years old at the time. They shared a double bed.
The applicant had his own separate room towards the back of the house.
It was a fairly large house, with four bedrooms, two bathrooms and a pool.
A long driveway from the street led to a roller‑door garage on the left‑hand side leading through into a patio area next to the pool.
To the right of the front door the wall of the house extended back towards the road. On the other side of that wall was the complainant's mother's bedroom ("the main bedroom"). Looking in the front door, the door to the main bedroom was on the right. To one's immediate front and left was the lounge/dining room. Beyond that room and past a wall extending halfway across the lounge room from the left, was the kitchen and family area. To the right from that area was an entry to the laundry, which also contained the back toilet.
The doorway to the complainant's bedroom was adjacent to the laundry.
Directly in front of that doorway but at the rear of the house was the applicant's bedroom, which had a walk‑in wardrobe adjoining the wall to the laundry.
To the left of the applicant's bedroom, along a passageway was first a bathroom, then the room in which the complainant's other two brothers slept. If they wished to use the toilet they had to walk along the passage past the bathroom and the applicant's bedroom, turn right and then left again into the laundry.
The main bedroom had a walk‑in wardrobe and an en suite bathroom, both fairly large. The complainant's room was on the other side of the walk‑in wardrobe. The separating wall was fairly thick because it was a supporting wall. The complainant's mother testified that when in her bedroom she was not able to tell whether or not the complainant was in her room.
At the time of trial the complainant was 18 years old. Her evidence was essentially as follows.
She and her little brother slept on a queen sized bed. Asked whether it had a base or was a mattress, she said it was on the base because she broke her bed playing on it; it was on the floor. She and her brother slept with their heads to the door. She slept with her door open. There was no lock on the door.
She described the applicant's appearance in late 1998 as tall, skinny, smelt like "BO", messy and untidy. She said James Lawrence's physical appearance at that time was chubby and he was shorter and a lot bigger than the applicant.
The complainant went to visit her grandparents in New Zealand on 2 December 1998. She stayed for a couple of months.
In November 1998, about four weeks prior to her departure, the applicant came into her bedroom before 6 o'clock in the morning. He touched her to wake her up and pulled her up by the arm. He took her clothes off and she laid back down. He rubbed his hand over her breast, belly and down to her vagina. She had been wearing a t‑shirt, a sports bra, boxers and knickers. She knew it was him because she could smell his BO. That was a smell well‑known to her at the time and had been a cause for comment in the house by her mother, the applicant's brother and one of the complainant's own brothers.
The applicant put his finger in and out of the complainant's vagina. He opened her legs with his hand on her thigh, got between her legs and began pushing his "willie" in and out of her vagina.
She said she could not call out because it felt like someone had taken her voice box out of her throat and she could not talk.
The applicant was breathing heavily. He told her he wanted it to be tighter and to push her legs together. She recognised his voice, which was well‑known to her.
She felt him get off her and his hand go under the pillow. She thought he was grabbing the wrapper from a "franger" (condom) from under the pillow. She thought that because it sounded the same as the ones they had unwrapped at school in a sports class.
After he did that he left the bedroom and she put her clothes back on. She did not speak to anyone at that stage and did not mention it to her mother because she thought her mother would hate her or "disown [her] type thing". She went back to bed, later got up and watched television and did some homework, before going to school.
Normally the applicant would pick her up after school and she expected him to do so that day, but he did not and she walked home.
The next day was a Thursday. That night the applicant again came into her bedroom sometime before 6 am. She knew it was before then because she normally got up at 6 am and the applicant himself started work at that time.
On this occasion she was wearing a t‑shirt, sports bra, knickers and her boxer shorts.
Again the applicant pulled her up and removed her clothing. She could not see him but she knew it was the applicant by the smell.
After her clothes had been removed, she laid back on the bed and he touched her on the inner thigh with his hand. He felt in‑between her legs and again put his "willie" inside her vagina.
She thought he put a condom on before he inserted his penis into her vagina, because she heard the noise of the wrapper, although she did not see it. She thought he was kneeling on the bed when he did that. Asked whether she saw any movement that suggested where he put the wrapper, she said that he leaned over next to her head which was on the pillow.
While he was moving his body up and down with his penis in her vagina, she asked him to stop, but he did not say anything.
Afterward, he got off, put his hand under the pillow and got the wrapper out and left the bedroom. She got dressed. She said she remembered the light going on and hearing the toilet flush.
Again, she did not tell anyone what had happened, for the same reason as before.
The following day, the Friday, she felt the doona pulled off her during the night because it was cold and there was a cool breeze. It was the applicant; she could tell by the smell and because he was skinny. It was the same person who had done it to her on the Wednesday.
When the applicant got off the complainant he put his hand under the pillow again, then left the bedroom and as before the toilet light came on and she heard the toilet flushing.
On that Friday night the complainant's friend AM stayed with her. They had become friends when she first started attending Kwinana High School. They usually had a sleepover at one or other's house each weekend. When AM stayed at the complainant's house, she slept in the complainant's bed with her and the complainant's brother.
The following night the complainant slept at AM's house, returning home late Sunday afternoon.
Early that Monday morning the applicant assaulted her in the same way once again. He pulled the doona off her, pulled her up, took her clothes off, placed himself between her legs and "rammed his willie" into her vagina. She could tell it was the applicant by the smell and his stature.
When the applicant got off her he took the condom wrapper from under the pillow and went into the toilet. The light from the toilet lit her room.
The complainant described a similar event occurring the following day, the Tuesday, and also on the Wednesday.
On the Thursday night she went to bed wearing a pink nightie with a teddy bear on the front. It was her mother's. The applicant came into her bedroom, pulled the doona back, pulled her nightie up under her breasts and removed her knickers. He opened her legs and "rammed his willie" into her vagina. He said nothing to her. That was the last time it happened.
On one of those occasions, she thought it was the Tuesday, someone went to the kitchen whilst the applicant was assaulting her and when they turned the light on he jumped off her and hid under the blanket next to her. When the person turned the light off and returned to bed he got back in-between her legs. She thought it was either her mother or the applicant's brother who had been moving about.
The complainant left to stay with her grandparents in New Zealand on 2 December 1998, returning on 20 January 1999 in time for the commencement of the school year.
When she returned the applicant was still living at the Leda address but there was no further incident involving him.
Just before school started, probably the second week of February, the complainant told her friend AM what the applicant had done to her. She said that he had raped her. That was the first person she had told about it.
It was not until 10 May 2002 that she told her mother. That was the day her mother and the applicant's brother broke up.

Grounds 1 and 2

Grounds 1 and 2 may be dealt with together.
The particulars given for ground 2 were:
"-The identification by the complainant identified a blue eyed wearer of boxer shorts - the Appellant is brown eyed and the evidence clearly showed has never worn boxer shorts
-There was voice identification on the basis of 6 words on 1 occasion.
-There was no forensic or medical evidence to support the allegation.
-The complainant's evidence differed significantly from 2 police statements which themselves were quite different casting doubt as to credibility.
-There was no evidence of recent complaint.
-The other adult male occupant of the home has blue eyes and admitted making sexual approaches to the complainant before and after the date of the allegations.
-The circumstances of the offences in a door [sic: room] with an open door in a full house with a 1½ year old child asleep on the same bed during the offences with no threat nor inducement to remain silent renders any convictions unsafe."
The legal principles which must be applied when considering a ground that a conviction is against the weight of the evidence or is unsafe or unsatisfactory, are well‑established.
As Mason CJ pointed out in Chidiac & Asfour v The Queen (1991) 171 CLR 432 at 422 ‑ 423:
"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted: Whitehorn v The Queen; Chamberlain [No 2]; Morris. In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused: Whitehorn; Chamberlain [No 2]; Morris. Or, to put it another way, it is for the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt: Morris. The appellate court does not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict because a verdict may be unsafe or unsatisfactory when there is a sufficiency of evidence for that purpose: Chamberlain [No 2]; Morris.
In deciding whether the jury, acting reasonably, should have entertained a reasonable doubt, it is the duty of the appellate court to make an independent assessment of the evidence: Ratten; Chamberlain [No 2]; Morris. In making that assessment, the court must necessarily take into account the nature and quality of the evidence, as this Court did in Morris, when it set aside the conviction as being unsafe or unsatisfactory because it proceeded upon the jury's evident acceptance of an admission of guilt which, in the opinion of the court, was unreliable." (Citations omitted)

It is not the function of the appeal court to substitute itself for the jury and retry the case, nor to decide whether a verdict is against the weight of the evidence; rather it is for the appeal court to decide whether there is a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof (ibid at 443). Although issues of credibility and the reliability of oral testimony are matters for the jury, there may be occasions when a jury proceeds to a conviction when the prosecution case is based upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree (Mason CJ, ibid at 444). If the appeal court sets aside the conviction in those circumstances, it is not substituting its view of credibility for that of the jury - it is giving effect to its conclusion that notwithstanding the willingness of the jury to accept the witness' credibility, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused's guilt according to the criminal standard of proof.
The relevant test was further considered and articulated in M v The Queen (1994) 181 CLR 487 at 493‑494 per Mason CJ, Deane, Dawson and Toohey JJ. The question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question, the Court must not disregard nor discount the consideration that the jury has had the benefit of having seen and heard the witnesses, but on the contrary, must pay full regard to those considerations.
The High Court affirmed that M set out the correct test in Jones v The Queen (1997) 191 CLR 439 at 452 per Gaudron, McHugh and Gummow JJ.
In M the appellant had been convicted of multiple counts of sexual assault and sexual penetration of his 13 year old daughter. The High Court quashed his convictions, having regard to the lack of corroboration, the fact the complainant made no complaint for a month and her previous behaviour, which included making previous complaints of a sexual nature against another person. The Court attached considerable significance to the improbability of the appellant acting as alleged in the circumstances which prevailed on the relevant occasion, on a squeaky bed in an unlocked bedroom within the hearing of his wife in a fully occupied small house.
As to the general principle, the Court held that if the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead a Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based on that evidence (M supra per Mason CJ, Deane, Dawson and Toohey JJ at 494).
In his submissions, counsel for the applicant made it clear this was not a case of lack of sufficiency of evidence to found a conviction in each instance, if the jury accepted the complainant's evidence and was properly able to do so. Rather, it was submitted that in all the circumstances no reasonable jury could have accepted the truthfulness and accuracy of the complainant as a witness.
The submission was advanced essentially on two bases. The first was said to be inconsistencies in the complainant's evidence and earlier accounts to the police and the lack of any recent complaint. The second was the improbability of the offences having taken place in the circumstances in which they were alleged to have occurred.
The applicant's argument on improbability may be encapsulated essentially by reference to the following considerations.
The applicant, a man of previously unimpeached good character, had lived with this family for some two years, first in New Zealand and then in Western Australia. He had shown no behaviour suggesting he had any sexual predilection for the complainant or young girls generally, and there had been no warning nor any word to the complainant. Nonetheless, it was claimed he walked into her bedroom during the night, got into her bed (in which her little brother was also sleeping), removed her clothing and sexually assaulted her. He did this over seven nights, saying nothing except on the first occasion, that he wanted "it to be tighter" and to push her legs together. Neither of them ever said anything to each other about it afterwards, she made no complaint until to her friend AM in February 1999 and did not tell her mother and subsequently the police until some four years after the events, in August 2002. This failure to complain was in the absence of any threat or inducement by the applicant that the complainant remain silent.
It was submitted the offences were even more improbable given that the complainant's head was only a few feet from her open bedroom door, that anyone passing along the passage would have been able to see her and the complainant's mother and her de facto (the applicant's brother), were asleep in the adjoining room.
All in all, I do not think the circumstances were such as to render the commission of the offences so improbable, either alone or in conjunction with the other matters raised, as to make the convictions unsafe or unsatisfactory. They are of a quite different order to those in M in which the majority observed (at 500) that:
"… more important than any individual matter was the improbability of the appellant acting as he was alleged to have done in the circumstances prevailing on the night, namely, on a squeaky bed in an unlocked bedroom which was only a short distance from, and within hearing distance of, another bedroom occupied by the appellant's wife, in a fully occupied, small house."
Although everyone slept with their bedroom doors open because the complainant's mother insisted they do so in case of fire, there was no evidence any member of the household was wont to get up in the middle of the night. Indeed, on the evidence, the jury might well have thought it would be unlikely anybody might go near or past the complainant's bedroom during the night. The complainant's brothers' room was towards the rear of the house, some distance from hers and separated from it along the passage by the applicant's room and the bathroom. The bedroom in which the complainant's mother and the applicant's brother slept had an en suite bathroom. The complainant's mother used to take a bottle of water to the bedroom with her. From the kitchen it would not be possible to see the complainant's room (see exhibit 4).
Given the size, layout and construction of the house, it was unlikely any noise from the complainant's room would be heard by her mother or her partner unless it was quite loud.
The applicant was familiar with the house and the pattern of life in it.
The jury might reasonably have thought that as the complainant had made no noise on the first occasion, the applicant would have had no reason to think she might on any of the subsequent occasions. So far as the presence in the bed of the complainant's 1‑1/2 year old brother is concerned, there is no evidence that he did wake up on any occasion (although he did stir once) nor that he was a light sleeper, nor that there was much physical activity involved. The brother was talking only "slightly" and sometimes people who commit offences are prepared to take risks that they might be discovered.
It is convenient at this point to consider that particular which concerns the two police statements made by the complainant, because other matters raised in argument (although not in the particulars in respect of any ground of appeal) were drawn from what was in them.
In cross‑examination, the complainant was asked about statements she had made to police on 12 August and 3 September 2002. The former ("the August statement") contained far more detail than the latter ("the September statement").
In [69] ‑ [72] of the August statement, the complainant said, about the second incident (on the Thursday):
"69.He pulled the donna [sic] off me and touched me on my arm or on my back, it was enough to wake me but not Cody.
70.He took his boxer shorts off and was naked, I could not see him clearly as it was still dark.
71.He pulled me up by my arms so I was sitting in bed and he pulled off my clothes.
72.He pulled the t'shirt up over my head and then my bra. He pulled off my boxer shorts and then my knickers. I did not have any clothing on."
Her description of that incident in the September statement was at [70] ‑ [71]:
"70.He pulled the doona off me and I woke up.
71.All I could feel was my clothes being pulled off me. He sat on the bed beside me and pulled my t'shirt up over my head with my bra. He pulled off my boxer shorts and knickers the same time. I did not have any clothing on."
The cross‑examination on these paragraphs was (AB 1/73‑4):
"… Now, I'll take you to paragraph 70 in the September statement. In that you say, 'He pulled the doona off me and I woke up.' You then go on to say, 'All I could feel was my clothes being pulled off me.' Okay. Now, what you actually told the police three weeks before is in paragraph 69 of the other statement. You say:
He pulled the doona off me, touched me on my arm or my back. It was enough to wake me but not Cody. He took his boxer shorts off and was naked. I could not see him clearly as it was still dark. He pulled me up by my arms so I was sitting on my bed. He pulled off my clothes.
What I want to know from you, [complainant], is how on 12 August you remembered all of that detail at the start of this incident and yet when you went and spoke to police on 3 September you didn't remember any of that detail? Do you know?‑‑‑I can't remember.
Now, there is then description in the September statement about your clothes coming off and I'll read it. You say:
All I could feel was my clothes being pulled off me. He sat on the bed beside me and pulled my T‑shirt up over my head with my bra. He pulled off my boxer shorts and knickers at the same time.
That is what you remembered and signed on 3 September. Three weeks before that you had said to the police, 'He pulled the T‑shirt up over my head and then my bra.' 3 September, 'pulled my T‑shirt up over my head with my bra.' Three weeks before, one after another. 12 August, 'He pulled at my boxer shorts and then my knickers.' 3 September, 'He pulled off my boxer shorts and knickers at the same time.' Again, can you explain how you were able to sign both of these statements saying that they were absolutely true when just on those details, there is quite a lot of difference?‑‑‑Because when I first read my first statement I wasn't thinking properly before I signed it.
You weren't thinking properly when you signed your 12 August statement?‑‑‑No.
So there are things in 12 August statement that you now say are wrong?‑‑‑Yes."
Shortly after, the complainant said she made the second statement because she had not got the first one right and she spoke to her mother about it. In fact, the evidence was that the interviewing police officer had been told by her superiors to take a further statement. When asked in cross‑examination whether she was thinking about making another statement "because [she] had knowingly signed a false statement", the complainant said "Yes".
The cross‑examination then continued (1/76):
"… in paragraph 73 of the August statement you actually go on to say:
He got into bed next to me, pulled the doona over us and began to kiss me. He kissed me on my lips and put his tongue in my mouth.
In fact there's none of that in the second statement at all, is there?‑‑‑No.
Is that because that was a lie?‑‑‑Because I couldn't remember so, yes, it was a lie.
Sorry. When you say you couldn't remember ‑ ‑ ?‑‑‑I couldn't remember exactly what happened so ‑ ‑
You made things up?‑‑‑No.
Well, if you didn't make things up ‑ ‑ ‑?‑‑‑Not about what actually happened.
If you didn't make things up can you explain to me why paragraph 73 of that 12 August statement is there?‑‑‑I don't know.
You must have told the police those things, didn't you?‑‑‑Yes.
But you're not saying now that they happened, are you?‑‑‑No.
So did you make them up?‑‑‑No.
So how are they there?‑‑‑I don't know. I just ‑ ‑ ‑"
Pressed, the complainant agreed she had been able to remember the events more accurately on 3 September than on 12 August, three weeks earlier, saying that was because she had actually sat down and thought about it and on the second occasion, it was "… more clear what I actually needed to tell her [Senior Constable Berecz]". She maintained that what she had said in court was what she remembered.
Counsel asked in various ways whether she had made up those things which had been in the August statement but not in the September statement. The complainant repeatedly said she did not know, but that what was in the September statement was correct. Further cross‑examined about particular details in the August statement which were not in the September statement, and it being put to her that those were details she had made up for the police, she answered that some of it was. Later, when it was put to her (AB 1/85):
"Do you accept that when you first spoke with the police you made up large parts of your statement?"
She said "Yes", but then there was the following exchange (AB 1/86):
"All of the allegations that you've made against Ross Lawrence are false?---No.
And that the real reason why on 3 September your statement contains such little detail is that you didn't have a copy of your August statement and because you had made up, as you accept, large parts of your August statement you couldn't be sure if you gave any detail that you'd give the same detail so you were forced to give a very different statement?---No, I didn't have to. The second statement is correct.
That to avoid giving different detail to the police on 3 September than you'd already given you cut out all of the detail because you weren't remembering what had happened, you were trying to remember what you had said and which you now accept was wrong. It was too difficult for you to remember what lies you had told the police?---None of that's a lie what happened.
The reason why you made these allegations against Ross Lawrence is because of the way you felt about your mother's partner?---No.
And you wanted him out of the house?---No.
You wanted their relationship over?---No.
And that what you say happened never took place?---It did.
The way we know that it never took place is because the members of the jury can assess whether somebody actually came into your room. In fact nobody came into your room on those occasions, did they?---Am I allowed to speak to them?
YEATS DCJ: You have to answer the questions that Mr Bannerman puts. He asked you, 'No‑one came into your room, did they'?---Yes, they did.
BANNERMAN, MR: I have no further questions, your Honour. Thank you."
In re‑examination on this issue, the complainant said that when the August statement was taken by Senior Constable Berecz at the Fremantle Police Station, she was alone and felt upset and angry and was on antidepressants.
Taken to particular paragraphs of her August statement, she agreed the paragraphs describing each of the incidents were in identical terms, but explained that was so because she had described the first incident in those terms and then in respect of each of the others had simply told the police officer each time that "the same thing happened". The police officer then put the same detail in the statement. She signed the statement because she was asked to do so and she had told the police officer what happened. Asked then in re‑examination whether she had made anything up in her first statement, the complainant said she had not.
The complainant said the September statement was taken at her house. Senior Constable Berecz asked her to think back properly and just explain slowly what had happened and make sure it was all correct. She did do that on the second occasion. She had not done so on the first occasion "because it was a lot harder". When asked why, she explained that (AB 1/95):
"It was telling Lesley for the first time what had happened and it just didn't feel comfortable telling her what had happened because I didn't know her."
In her evidence, Senior Constable Berecz testified that when she took the first statement, the complainant was very shy and not very forthcoming. The Constable said she believed she had not completely gained the complainant's trust. The complainant was only 17 years old at the time and the matters discussed were very personal and it was very hard to gain trust on the very first meeting in relation to a sexual assault.
The complainant described the first incident in some detail. Thereafter, in describing the subsequent incidents, she said each was just like the first time. So Senior Constable Berecz used a Microsoft PC program to "cut and paste". She simply inserted text relating to the first, into those paragraphs describing the subsequent incidents.
When her work was later checked by her supervisor, he told Senior Constable Berecz to take a further and better particularised statement from the complainant, which is what she did.
Between the August and September statements the Constable had numerous telephone conversations with the complainant.
She described the complainant as "much more relaxed" with, and more at ease talking to, her on the second occasion, which may have been because she was in her own environment. There were several things the complainant said she did not recall and what she did say was put in the statement without any "cutting and pasting".
The learned trial Judge brought this issue to the attention of the jury and directed them appropriately on it. She pointed out (AB 1/211) that "… a very important part of the defence case revolves around the out of court statements of [the complainant]". She then explained the way in which statements are taken by police in the course of investigation and how the use by the jury of such out of court statements was confined to their assessment of the credibility of the witness who made them. Her Honour referred specifically to the evidence of the complainant, saying that if the jury were to find she told the police something different to what she said in evidence, they could find she was not believable because of that. Her Honour then continued (AB 1/212):
"The defence suggests that for her to change the detail of her statements to such an extent as they say she did between August of 2002 and September of 2002, should demonstrate to you that she is not credible. They say she is neither truthful nor reliable. The defence further suggest that in many aspects her sworn evidence is different again from either of her statements and that makes her less truthful and less reliable, but that's the only way those statements can be used.
I do remind you that the crown prosector asks you to consider Police Constable Berecz's evidence, … of how those statements were taken; to take account of the fact that this was a 13‑year‑old trying to tell a police officer about what she alleged happened some three and a half years earlier, and the problems of trust and all that. You will have to make your own judgments about that but do not rely on the statements, even though you have them, as evidence of the truth of their contents. Only use them to compare with what she said in court."
The process adopted by Senior Constable Berecz of "cutting and pasting" one part of a statement to another, whilst no doubt well intentioned (and no‑one suggested otherwise) was inappropriate and unfortunate. It resulted in the complainant having to face a challenge to her own credibility and undergo testing cross‑examination to explain something which had in fact been done by the Constable. The proper course would have been to have simply recorded in the statement exactly what the complainant said, for example, "it was the same as the first time" and then (if thought necessary), ask her to explain that and record what she actually said.

Be that as it may, allowing for the tendency of a witness to accept propositions put in cross‑examination without necessarily appreciating the additional "loaded" content of the actual words used by the cross‑examiner to express the proposition, the jury could reasonably have formed the view that the differences between the statements did not detract from the credibility or reliability of the complainant's evidence.
The differences were explained by the process which had been undertaken. Whether they were material - and in particular, whether they had the significance, in terms of credibility, which counsel for the applicant sought to attach to them - was entirely a matter for the jury to assess.
In the circumstances, the nature of the differences was not such that they must inevitably have destroyed or damaged the complainant's credibility as a witness. That being so, this particular does not advance the applicant's grounds of appeal.
I come now to that particular concerning the complainant's identification of her assailant as being blue eyed and wearing boxer shorts.
In her account of the incidents, the complainant said that although she could not see him because it was dark, she knew it was the applicant who was assaulting her because of his physical stature (skinny), body odour and voice (when he spoke to her during the first incident). She was familiar with his body odour and voice. She had known him since 1997 as he been living in the same house in New Zealand and then in Western Australia with her and her family.
She made no mention of boxer shorts or blue eyes in her evidence‑in‑chief.
The following exchanges occurred in cross‑examination (AB 1/57‑59):
"In your statements you always speak of the person who you say came into your room as wearing boxer shorts. Is that right?---Yes.
That's something you remember?---Yes.
And on every occasion the person who came into your room was wearing boxer shorts. Is that right?---I'm pretty sure, yes.
You could tell by the fabric or the design or because you saw them or what?---No, because I knew what he wore to bed that night.
So you didn't actually know what the person as wearing. You knew what Ross Lawrence had gone to bed in?---Yes.
So do you remember that they were boxer shorts that the person was wearing?---Yes.
So you actually remember the person who came into your room was wearing boxer shorts?---No.
You're now saying no, you don't remember if the person was wearing boxer shorts?---No, I don't.
Can you explain how in each of your police statements you've always referred to the person taking their boxer shorts off if you didn't know what the person was wearing?---I can't remember.
You can't remember. You can't remember what they were wearing or you can't remember why it's in your police statements? Could you explain?---I can't remember why - I can't remember why it's in my police statement.
You remember Ross Lawrence wearing boxer shorts?---Yes.
I need to put it to you that Mr Lawrence is likely to tell the jury he never wore boxer shorts. He only has owned two pairs of boxer shorts in his life, both bought by his wife. Does that change your recollection?---No, it doesn't.
Okay. What colour eyes did the person have who came into your room?---Blue.
You saw their eyes?---No.
I'm sorry?---No.
So how do you know they were blue?---I didn't."
There was then an objection by the State prosecutor, following which counsel for the applicant asked:
"Did you say blue because Ross Lawrence has blue eyes?"
to which the complainant answered "Yes".
I also note that in cross‑examination the complainant said there had been two occasions when James Lawrence asked her to perform oral sex with him. The first was when they were in New Zealand (that is before 1997) and the second was on her mother's birthday, after her visit to her grandparents in New Zealand in 2002. Her mother's birthday was on 8 February.
When he gave evidence‑in‑chief, James Lawrence admitted he had asked the complainant on 8 February 2002 to give him a "blow job" because he was then estranged from her mother and lonely. She refused and told him to "eff off". He admitted he had asked her the same thing once before, while they were still in New Zealand but she did not really understand at the time and just walked off. He denied ever having received oral sex from her or having sex with her.
James Lawrence said he had hazel eyes, but he had been wearing blue contact lenses for the last 2‑1/2 years (he gave his evidence on 15 April 2004).
Since 2000 the applicant has been living in a de facto relationship with KH and her two children.
In his evidence he said his eyes are brown and that he has never worn glasses or contact lenses. He said it could not have been the case that he wore boxer shorts to bed in 1998 because he never had any boxer shorts until his present partner, KH, bought a pair for him. He did not like them when he wore them and has not worn them since.
That evidence was supported by KH and the applicant's mother. KH testified that she first met him about five years ago and they had been living together since about November 1999. She did the household laundry. When they first started living together the applicant's form of underwear was underpants, not boxer shorts. She said she had bought him two pairs of boxer shorts when they first started going out together. Later on he told her he did not wear them.
The applicant's mother had come from New Zealand to give evidence. She testified that the applicant lived at home until he was 17, that she did the washing and that he "just mainly had underpants"; he never wore boxer shorts.
In cross‑examination, she said the applicant had not lived with her since 1994 and that was the last time she had cause to do his laundry.
A consideration of the complainant's evidence as a whole makes it clear that when she had said (in her statement to the police) that the offender had blue eyes and wore boxer shorts, she was not saying she had seen those at the time of the incident. As usual, one does not know the questions that were asked which produced the answers that were then recorded as the witnesses' statement. It is therefore difficult, if not impossible, to know what led to the complainant saying what she did. What is clear, however, is that what she was saying was that she knew her assailant had blue eyes and was wearing boxer shorts because she knew from his stature, body odour and voice that it was the applicant - and she knew he had blue eyes and wore boxer shorts to bed.
Contrary to what is implicit in this particular, the complainant did not purport to identify the applicant as her assailant by reference to the colour of his eyes and his boxer shorts. It is not a case of the identification being unreliable because the person who assaulted her had blue eyes and boxer shorts, which the applicant did not. The only way in which this particular could detract from the complainant's credibility would be by raising doubt about the accuracy of her recollection that the applicant, known to her as well as he was, had blue eyes and wore boxer shorts to bed.
These were not matters of such importance as to necessarily lead a reasonable jury to have a real doubt about her credibility in relation to the fact and circumstances of serious sexual assaults as described by her. People do not always notice the colour of other people's eyes, even people they know well. The jury could reasonably have taken the view the complainant was just mistaken about that and whether the applicant wore boxer shorts. She was not asked to describe them nor whether she had actually seen him going to bed.
Given the evidence of James Lawrence that his eyes are hazel and that he did not wear blue contact lenses until about late 2001, it could not have been that the complainant was thinking of him. That particular which asserts that he "… has blue eyes" misstates the evidence.
Certainly the fact that James Lawrence admitted to asking the complainant to give him oral sex both before they left New Zealand in 1997 and again in 2002, indicates a sexual interest by him in the complainant, but the possibility that he may have been the perpetrator was well before the jury, who were entitled nonetheless to accept that on her evidence the perpetrator could only have been the applicant.
It is true the complainant identified the accused as the person assaulting her on the first occasion, in part, because she recognised his voice. Whether it was six words or a few more than that probably does not matter. The applicant's point is that it was only a few words spoken on one occasion. However, the complainant also recognised the applicant by his body odour (which on the evidence was so distinctive as to have been the subject of comment in the household) and skinny stature.
It is apparent from the complainant's evidence that her assailant had to be one of the male occupants of the house. Realistically there were only two possibilities. It was either the applicant or his brother. These were not assaults by someone unknown to the complainant or with whose voice she was not familiar. Both the applicant and his brother had been in the same household with the complainant for about two years. The complainant described them differently. The jury were entitled to take the view that in the circumstances the complainant would have been able to readily identify the applicant for the reasons she gave. The fact there was no forensic or medical evidence to support the allegations is not surprising. The offences as described by the complainant did not involve physical violence beyond sexual intercourse itself. The complainant did not tell her mother about them until 3‑1/2 years later. Whilst the prosecution case was weaker for the want of it, the lack of such evidence does not have any tendency to show the offences did not occur; it was simply a proof which the prosecution did not have and which it might have had in other circumstances.
As to the lack of recent complaint, the learned trial Judge gave an appropriate direction in relation to that and no point is taken about that.
Neither individually nor in combination do the matters set out as particulars of ground 2 lead to a conclusion that it was not open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt or that the convictions were unsafe or unsatisfactory; nor does a consideration of the evidence as a whole.
Ground 3 is self-explanatory. It accurately states what occurred at the trial. Whether that had the effect asserted is a different question.
Counsel for the applicant took no objection and did not raise the issue at trial. In particular, there was no application for discharge of the jury.
It was the learned trial Judge herself who raised the point prior to addresses (AB 1/196‑7). Her Honour expressed concern that there were many questions in the video record of interview ("VROI") which related to matters about which no evidence had been led by the prosecution, particularly questions about the applicant buying clothing for the complainant. The applicant had denied those matters when they were put to him, but as her Honour said, it was "… not a good situation". The questions and answers should have been edited out of the video.
With respect, her Honour was quite right, as the State prosecutor conceded. He agreed that it would be necessary for her Honour to direct the jury about it.
Counsel for the applicant explained there had been no objection to those parts of the VROI prior to trial because there had been supporting assertions in the statements of prosecution witnesses (albeit which would have been challenged in cross‑examination), but the witnesses had not been asked about those matters when called. He said the point raised by her Honour had not occurred to him.
In the event, her Honour gave the following direction (AB 1/210‑211):
"… There is a serious problem that I have to draw to your attention. You probably noticed when you were watching the video interview that police were asking questions about matters that there was no evidence about.
You remember the police questioning him and saying, 'We have statements from three witnesses that you bought clothing or jewellery or something.' Ladies and gentlemen, there is simply no evidence. Those witnesses came to give evidence but they were not asked about that so I direct you that you cannot rely on anything put to the accused by police that just has no evidential value. The fact that they asked the question, the accused denied it anyway, but that has no evidential value at all and it should not have been before you without there being testimony from those witnesses to back up those questions.
It should have been deleted from there so just exclude that. Just accept that there is no evidence at all and nothing at all about the accused purchasing any jewellery or any clothing. …"
This was entirely appropriate. The direction also has to be considered in the context that it was the complainant's own evidence that the applicant had never threatened her nor attempted to bribe her to keep quiet (AB 1/60).
The direction given was one which the jury could reasonably be expected to follow, not least of all because in any event the questions were not evidence of the facts asserted and the applicant had denied what was put to him.
In my view this ground must fail.
The direction complained of in ground 4 is as follows (AB 1/210):
"In this trial one of the key pieces of evidence from the prosecution point of view is the video interview and you have watched it and it is long and it is a bit tedious. There is never much action in these interviews. People sit there and speak for endless periods of time.
Now, you can accept, if you accept it as truthful what was said by the accused in his favour you can accept that, and you can accept anything that he said on the video that you might find was against his interest. I will speak to you a little further in a minute about - it was on the video that he told police on two occasions that during the telephone conversation with Sharon Dunn he finished the conversation by saying 'I might have,' and that is a piece of evidence you will have to think about and I will talk to you more about that in a minute.
He also gave that evidence on oath, of course, but you will see he first told police about that on two occasions during the video interview and you might want to go and look at that part of the video again. The prosecutor told you you might have to look at the whole thing but I think the prosecutor told you at what point on the video those are to look at what he was saying to the police at that time considering what he said to you on his oath.
The other way you could use the video interview is to compare what the accused said on oath with what he said earlier to police. In this case there have been no suggestions that he has changed his testimony. There is no suggestion that the accused has changed what he said to police and says something different today but that is a way you could use it. You can compare."
The background to this is that the complainant's mother had given evidence that she telephoned the applicant on 10 May 2002 to ask him if he had raped her daughter. The applicant's new de facto partner answered the telephone and after a brief conversation passed it to the applicant. The complainant's mother said she had just been told the applicant had raped her daughter and asked him if he had. She testified that he said "I attempted". She then told him never to come near her family again or she would kill him.
Sometime later (and apparently on the strength of what had been said in the telephone call) the applicant and KH applied for a restraining order against the complainant's mother. At the court hearing for that, she put to him that she had spoken to him on the telephone and asked whether he had raped her daughter and he had replied "I attempted", but his response to that question at the hearing was, she said, "No comment".
In cross‑examination she accepted that hearing had taken place on 4 September 2002. When it was put to her, she said she could not recall him saying "no" to the question she asked him about the telephone call, but he might have.
Cross‑examined about the telephone call itself she agreed she was extremely angry but denied that she continually argued with him and tried to force him to say something he did not want to say. She denied that he said repeatedly to her "No, I didn't" and denied that at the end of the call he said "I might have" and just hung up.
In his VROI the applicant had described it to the police this way:
"And then she swung around and she goes 'don't lie to me,' you know, and started pestering me, pushed me into a corner. So I said, 'Alright, I might have,' just to try and get off the phone, because I'd had a gutful …"
and a little later, asked about it again, he said:
"… Well, she pushed me into a corner. She was just going on and on and on and, like, what do you do? You get pushed in a corner, which way do you go? Then towards the end I just had a gutful and hung up and I thought, 'Well, I should have done that in the first place. I should have just hung up.' I never sort of realised that. …"
In his evidence‑in‑chief the applicant said the telephone call from the complainant's mother probably lasted about five minutes. During it, he felt threatened and was getting very angry with her. His evidence then continued (AB 1/165‑6):
"You said in the video record of interview that you answered a question from Sharon Dunn about whether you had raped her daughter with the words, 'I might've.' Did you say those words?---At the end of the phone call I did.
We really might wonder why, if you hadn't touched this girl, you would use those words. Having thought about it do you have any explanation?---When the phone call first started she had asked - put the question to me and I had said no. She was going on and on and on and I thought 'How do you get someone like this off the phone?' You try to say a few other things, it doesn't work, so in the end I just thought, 'Well, the only thing that's probably going to shut her up is if I say I might have.'
Did you think that that might suggest to her that you had in fact done it?---Well, I never actually said I did do it so - I only said I might have.
[The complainant's mother's] evidence I think was that you said, 'Attempted to'?---I never said I attempted to."
The same telephone call was the subject of cross‑examination (AB 1/174‑176):
You said in the record of interview, you've said, 'I might have,' because you wanted to end all the abuse and telephone calls?---Yes.
Surely by saying that, it's just going to increase the abuse and telephone calls?---Well, you're in a heated discussion, you're not thinking straight, are you?
Tell me. Don't you think it's the most extraordinary thing - to me?---Looking back at it now, it is.
Could I put this to you? Wasn't it the case really what you're doing is rubbing her face in it? Do you know what I mean by that?---I'm not quite sure what you mean.
She has asked you whether you raped the daughter and you're saying, 'I might have,' and by that you mean, 'Try to prove it'?---No, not rubbing her face in it, just trying to get her to calm down so we could, you know, either talk about it sensibly, or what, but she didn't want to.
In the presence of the magistrate, when you were asked questions about that - I think my learned friend took you to this - [The complainant's mother] said to you, 'I'm just trying to remember what he said. So the night I rung you and told you about [the complainant], you were on the speaker phone and I have six witnesses, Ross, and I asked you one simple question, "Did you rape my daughter?" Your words were, "Attempted".' You answered, 'I said, "no."' You said that on that occasion?---Yes. And you slammed the phone. You said 'attempted.' It has been recorded you said 'attempted.' The phone was hung up by you immediately.
You didn't go on to make any comment that you had said you might have?---No, I didn't.
And why is that? A question of opportunity or ‑ ‑ ‑?---No. Just didn't really think about it at the time and we were there for a restraining order.
So your answer then was, 'I just said no'?---Yes, that's what I initially said on the phone.
And for whatever reason that's only part of what you said on the phone to ‑ ‑ ‑?---I'd said no a couple of times. She's asked the question a couple of times."

That portion of the VROI to which the learned trial Judge specifically referred the jury in the direction complained of, was the only part of the interview which constituted an admission against interest. Strictly speaking therefore, it was the only part of the interview which was admissible. Everything else said by the applicant to the police was self‑serving. It was a prior consistent statement made out of court and ordinarily would have been inadmissible. But the law is, that where the prosecution puts into evidence a statement of an accused being an admission against interest, the whole statement including those parts which are exculpatory, must be put in. The exculpatory parts are then evidence of the facts, although they may not be accorded as much weight (if any) as those against interest (Queen Caroline's case [1821] 1 State Trials (NS) 949; R v Karpany [1937] SASR 377, 379; R v Williamson [1972] 2 NSWLR 281, 289). As it was explained by Malcolm CJ and Murray J in McCarrol v The Queen [2004] WASCA 131 at [19]:
"The law as to the reception in evidence of a "mixed" statement, one containing admissions or declarations against interest by an accused person and one containing exculpatory statements, is clear: Mule v The Queen [2004] WASCA 7 per Templeman J at [13] – [15] and McLure J at [27] – [30]. Where the prosecution is permitted to tender such a statement, relying upon its confessional qualities, then it is obliged to accept in evidence the exculpatory material which may in turn be relied upon by the accused. All of the statement becomes evidence available to the jury for their consideration, but the admissions and the exculpatory material need not, and indeed probably should not in the generality of cases, be accorded equal weight."
Looked at in this light, if what the ground of appeal asserts were true, namely that the learned trial Judge created an impression that the applicant's comments about the telephone call had special significance to the question of guilt, then it would have been in accordance with the law. The applicant's comments about the telephone call did have special significance to the question of guilt, because they were capable of being taken by the jury as an admission.
I take it however, that the real complaint about this direction is that her Honour effectively told the jury they could disregard the rest of what was in the VROI, that being the same exculpatory account as given by the applicant in evidence.
I do not think that argument can be sustained.
The jury could properly have convicted on the uncorroborated evidence of the complainant alone, if they accepted it. The evidence of the applicant's admission (if the jury saw it as such) was additional to, albeit tending to confirm, her account. In my view that was even more so if the jury took it as being that he said he "might have" raped her, rather than that he "attempted to" do so. I consider that it would have had even stronger effect in that way if the jury accepted the applicant's version of what he said in the telephone conversation.
The learned trial Judge rightly identified the VROI as one of the key pieces of evidence in the trial from the prosecution point of view. So it was. She expressly explained that the jury could accept what the applicant said in his own favour if they thought fit. She also said they could use the interview by comparing what he told the police with what he said in evidence, noting there had been no suggestion he had changed his "testimony" (sic: story). This was an accurate and sufficient statement of how the jury might use this evidence.
This ground too must fail.
It follows that none of the grounds of appeal against conviction have been made out. I would refuse leave to appeal.
The applicant was sentenced to 2 years' imprisonment on count 1, 3 years' imprisonment on count 2 and 6 years' imprisonment on count 3 to 10 inclusive. Her Honour ordered the sentences on counts 2 to 10 to be served concurrently with each other but cumulatively on the sentence imposed on count 1. The aggregate sentence was accordingly 8 years' imprisonment. Her Honour ordered the applicant be eligible for parole and that the sentence commence from 16 April 2004, the date upon which he was taken into custody.
There are two grounds of appeal against sentence. They are:
"1.The totality of the sentence was manifestly excessive in the circumstances. The sentence in respect of Count 1 of 2 years should run concurrently with the remaining sentences creating a total sentence of 6 years with parole eligibility given the:
(a)excellent antecedents of the Appellant [sic];
(b)the lack of any prior or subsequent conviction;
(c)the low risk of any re‑offending of the Appellant [sic] as found in the pre‑sentence and psychiatric report;
2.The course of offending behaviour was such that all sentences should have run concurrently."
The grounds of appeal do not plead that the learned trial Judge erred by failing to have regard to any of the factors referred to, and it is clear from the transcript that she did. Her Honour expressly referred to them. For example, in relation to the applicant's antecedents, she commented that she did not think she had ever read so many references from so many people.
The applicant's argument was essentially that her Honour had given insufficient weight to the factors adumbrated in ground 2 and to the principle of totality.
Counsel for the applicant expressly conceded that the "head" sentences imposed by her Honour were within the appropriate range of sentences, "save for the lack of proper discount" for the factors mentioned. The overall submission was that the sentences of 6 years on each of the counts of penile penetration without consent "should be reduced" and that her Honour should have ordered all the sentences to be served concurrently.
In my opinion the sentences imposed were within the range of a proper exercise of the sentencing discretion.
Although there was no "tariff" for such offences, sentences of 6 years' imprisonment have been commonly imposed for single offences of penile penetration without consent (see Malcolm CJ in R v B (1996) 88 A Crim R 91 at 95).
There is a great deal of room for discretion when sentencing for sexual offences and any particular sentence may be the subject of significant reduction for mitigating factors (per Malcolm CJ ibid).
These were separate offences committed over a period of approximately one week by an offender who was (it was accepted) the "de facto uncle" of the complainant and so in a position of trust with respect to her.
There was nothing to mitigate in the circumstances of the offences themselves. There was no remorse. Offences of this kind, committed on children of the complainant's age at the time, are especially serious and can have a devastating effect on the victim's lives, as her Honour pointed out.
It was open for her Honour to conclude (as she obviously did) that the mitigating effect of matters personal to the applicant, including his previous good character, the devastating effect prison would have on the applicant, his de facto partner and two young children and his low risk of reoffending, was outweighed by the seriousness of the offences.
I am not persuaded that either the individual sentences nor the aggregate of 8 years' imprisonment is disproportionate to the criminality of the individual offences nor to the applicant's overall criminality, notwithstanding the mitigatory factors upon which counsel relied.
However, there is one apparent problem, to which our attention was quite properly and fairly drawn by senior counsel for the respondent.
Nowhere in her sentencing remarks does her Honour mention Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (No 50 of 2003) ("the Sentencing Amendment Act").
Schedule 1 to the Sentencing Amendment Act came into operation on 31 August 2003.
The Sentencing Amendment Act introduced a new regime purportedly to show "truth in sentencing". The legislation abolished the automatic waiving of one‑third of a prisoner's sentence once they had served one‑third in custody and one‑third on parole. Schedule 1 contains transitional provisions intended to adjust to the new regime, sentences imposed after it came into operation.
Clause 2(1) of Sch 1 relevantly provides that:
"If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two‑thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing."
Clause 2(4), so far as is presently relevant, provides that:
"A court does not have to apply this clause if, in sentencing an offender, the court follows the practice of the court as established in accordance with the new provisions and this clause."
Other circumstances in which cl 2 does not apply are set out in cl 2(5), but none of those bear upon this case. Her Honour was accordingly bound to apply cl 2(1) and reduce by one‑third, the sentences she would have imposed under the previous statutory sentencing regime. The question is whether or not she did so. It would be surprising if such an experienced Judge as her Honour had overlooked this provision.
However, there are two considerations which lead me to conclude that her Honour did overlook this requirement. The first is that she failed to make any reference to it. So far as I am aware, it has been virtually the universal practice of Judges of this Court and the District Court, to expressly refer to the statutory reduction in sentence required by Sch 1, since it came into force. The second is that the sentences imposed by her Honour reflect the level of sentences appropriate to the sentencing ranges under the old provisions.
That conclusion is further reinforced by the fact that a sentence of 6 years which did reflect the current statutory one‑third reduction would equate to a sentence of 9 years' imprisonment under the old provisions. Such a sentence in the circumstances of this case would manifest error. Equivalent sentences to the 2 and 3 years' imprisonment would have been 3 years and 4 years 6 months respectively.
I do not believe that is how her Honour approached it.
Failure to comply with cl 2(1) of Sch 1 is an error of law as a consequence of which the exercise of her Honour's sentencing discretion miscarried. It accordingly falls to this Court to set those sentences aside and pass those which ought to have been passed (s 689(3) of the Code).
I would grant leave to appeal, allow the appeal against sentence and adjust the sentences imposed by her Honour by applying the statutory one‑third reduction, but otherwise making the same orders. That would lead to sentences of 1 year 4 months on count 1, 2 years on count 2 and 4 years on each of counts 3 to 10 inclusive, giving an aggregate of 5 years' 4 months' imprisonment.