LWD v The State of Western Australia - [2017] WASCA 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LWD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 174

CORAM: MAZZA JA
BEECH JA
HALL J

HEARD: 19 JUNE 2017

DELIVERED : 19 SEPTEMBER 2017

FILE NO/S: CACR 153 of 2016
CACR 154 of 2016

BETWEEN: LWD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :IND 53 of 2013

Catchwords:

Appeal against conviction - Whether verdict on one count inconsistent with other verdicts - Whether rational basis for differing verdicts

Criminal law - Appeal against sentence - Fresh evidence regarding mental health - Whether different sentence should be imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 39, s 40, s 41

Result:

CACR 153 of 2016:

Application for extension of time refused
Appeal dismissed

CACR 154 of 2016:

Application to adduce additional evidence refused
Application for extension of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D C McCallum
Respondent: Mr L M Fox

Solicitors:

Appellant: Shaddicks Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Colwell v The State of Western Australia [No 2] [2012] WASCA 196
DPJB v The State of Western Australia [2010] WASCA 12
Gok v The Queen [2010] WASCA 185
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82
Li v The Queen [2000] WASCA 340
MacCauley v The State of Western Australia [No 2] [2017] WASCA 65
McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
Vucemillo v The State of Western Australia [2017] WASCA 37
Wheeler v The Queen [No 2] [2010] WASCA 105

JUDGMENT OF THE COURT: The appellant was convicted after trial of eight sexual offences against his stepdaughters, P and J. Seven of those offences related to P and one related to J. He was acquitted of a further seven offences, two relating to P and five relating to J. He was sentenced to a total effective sentence of 13 years' imprisonment. He seeks leave to appeal against his conviction on one count (that relating to J) and against the total sentence imposed.
The appeal notices were filed nearly two years out of time and extensions of time are required. The appellant's solicitor has sworn affidavits seeking to explain the delay. Essentially, the appellant was 'overwhelmed' at the outcome immediately following the trial. He then had mental health issues, though the severity of them fluctuated. In late 2015 he approached the Legal Aid Commission regarding his prospects of appealing his conviction or sentence. In April 2016 he approached a private lawyer to provide him with advice as to his prospects. There were then further delays as a result of difficulties in obtaining transcript and the prosecution brief and in raising funds to cover the legal fees of appeals. The delay is significant and the affidavits explain some, but not all, of that delay. Where delay is not adequately explained an extension may still be granted if the appellant establishes that to refuse an extension would result in a miscarriage of justice. Accordingly, the applications to extend time depend on an assessment of the merits of the appeals.

Prosecution case

The appellant commenced a relationship with N, the mother of P and J, in 2000 or 2001. At that time the appellant was 19 years of age and N was 24 years of age. N had three children from previous relationships. At the time the relationship with N commenced P was 4 years old and J was 3 years old. The appellant and N later had a son together, C, who was born in 2006.
The prosecution alleged that soon after the relationship between the appellant and N commenced he began to sexually offend against P and J. This continued until P was approximately 14 or 15 years of age and J was approximately 10 years of age.

Count 1

The State alleged that on a date unknown between 18 January 2001 and 20 January 2002 the appellant sexually penetrated P by introducing his penis into her mouth. This was said to have occurred on a day when the family were moving houses. P was in a car being driven on a country road by the appellant. It was alleged that the appellant pulled the car off the road and forced P to suck his penis for a short time. He was found not guilty of this count.

Count 2

It was alleged that on a date unknown between 23 November 2003 and 18 December 2004 the appellant sexually penetrated J by penetrating her vagina with his finger. It was alleged that the appellant told J to go into the bathroom and wait. He then entered the room, pulled her pants and underwear down and penetrated her vagina with his finger. The appellant was found not guilty of this count.

Count 3

The prosecution alleged that on a date unknown between 31 August 2004 and 20 January 2006 the appellant sexually penetrated P by penetrating her vagina with his finger. It was alleged that the appellant told P to go to the laundry of the house before following her into the room. He wedged the door closed with a mop. He pulled her pants down and placed her on a clothes dryer and then penetrated her vagina with his finger. The appellant was found guilty of this count.

Count 4

The prosecution alleged that on a date unknown between 1 November 2006 and 26 November 2007 the appellant sexually penetrated J by penetrating her vagina with his finger. It was alleged that J and P were together in a bedroom that they shared when the appellant entered with his penis out of his pants. He told both girls to pull their pants down and to lie on the bed face down. The appellant then penetrated J's vagina with his finger. The appellant was found guilty on this count. This is the count that is the subject of the appeal against conviction.

Count 5

The prosecution alleged that on a date unknown between 1 September 2004 and 31 December 2008 the appellant sexually penetrated J by penetrating her vagina with his finger. It was alleged that J accompanied the appellant when he drove to a nearby rubbish tip. On the return journey he stopped the car at an oval before getting out of the driver's seat and walking around to the passenger side of the car. It was alleged that he opened the door, made J lie down on the seat and pulled her pants down. He then placed his finger into her vagina. The appellant was found not guilty of this count.

Count 6

The prosecution alleged that on a date unknown between 26 November 2006 and 31 December 2008 the appellant indecently dealt with J by showing her pornographic material. It was alleged that J had accompanied the appellant to a house where he was doing some painting work. He took her to a shop to buy lunch and also purchased a magazine depicting naked females. After returning to the house, the appellant made J look through the magazine with him. The appellant was found not guilty of this count.

Count 7

The prosecution alleged that on a date unknown between 1 September 2003 and 31 December 2008 the appellant sexually penetrated J by penetrating her vagina with his finger. It was alleged that the appellant took J to the laundry of the house and locked the door behind him. He then lifted J onto the washing machine and placed his finger in her vagina. This was said to have occurred as one of a number of similar incidents that occurred every few weeks for a portion of J's school years. The appellant was found not guilty of this count.

Count 8

The prosecution alleged that on a date unknown between 31 November 2010 and 1 February 2011 the appellant sexually penetrated P by engaging in cunnilingus. It was alleged that the appellant and P were together in the shed of a friend when the appellant tried to pull her pants down. When she tried to run away he grabbed her by the arm and placed her on her back on a mattress. The appellant then spread her legs and licked her clitoris. The appellant was found guilty of this count.

Counts 9 and 10

The prosecution alleged that on a date unknown between 18 January 2010 and 20 January 2012 the appellant sexually penetrated P with an ice cube and then procured her to penetrate herself with her finger. The appellant and P were again in a shed. There was a Torana parked in the shed that was covered in blankets. P was lying naked on the blankets when the appellant pushed her legs into an upright position. He then rubbed her vagina with a piece of ice before pushing it into her vagina. He then took her hand and forced her to penetrate her vagina with her finger. The appellant was found guilty of both of these counts.

Counts 11 and 12

The prosecution alleged that on a date unknown between 18 January 2010 and 20 January 2012 the appellant sexually penetrated P by penetrating both her vagina and her anus with his penis. On this occasion the appellant and P were again in the shed. He required P to get onto her hands and knees on the mattress. He put a condom on his penis and then penetrated her vagina from behind. He then penetrated her anus with his penis. The appellant was found guilty of both of these counts.

Counts 13, 14 and 15

These three counts were alleged to have occurred on the same occasion on another unknown date between 18 January 2010 and 19 January 2012. It was alleged that on this day the appellant sexually penetrated P by penetrating her vagina with his penis, penetrating her vagina with a mallet handle and penetrating her anus with an unknown object respectively. On this occasion the appellant and P were again in the shed. He removed her clothes after a struggle and placed her on the bonnet of the Torana on top of the blankets. She was lying face down and the appellant pulled her legs apart and penetrated her vagina with his penis. He then penetrated her vagina with the handle of a mallet and then penetrated her anus with another unknown object. He was found guilty of count 13 and not guilty of counts 14 and 15.

Evidence of J

The ground of appeal against conviction only challenges the verdict in respect of count 4. The evidence of J was critical to this count.
J was 16 when she gave evidence at the trial. She said that the first incident involving the appellant that she could recall occurred when she was about 6 and in year 1 at school. She said that on this occasion the appellant told her to go into the bathroom of the house and that he then placed her on the basin and pulled her pants down. She said he then put his fingers inside her vagina and that this felt 'uncomfortable and awkward'. She could not remember how long this lasted and was not sure whether this was the first time that he had done such a thing to her. She thought that there was a lock on the bathroom door but she could not remember whether the door was locked at the time of the incident. This incident was the subject of count 2 (ts 209 ‑ 210).
The next incident that J described was the one which is the subject of count 4. She said that this occurred when they had moved to another house and she and P were sharing a bedroom. She then gave the following evidence:
Do you recall another incident that may have occurred between you and [the appellant]?‑‑‑I was playing with my Barbie dolls with my sister in our room. We had a cubbyhouse. I was sitting in the cubbyhouse when [the appellant] came into the room.
You might need to speak up just a little bit?‑‑‑I was sitting in a cubbyhouse when [the appellant] came in.
And when he came into the room, did you notice anything about it?‑‑‑He had his penis out of his pants.
What was he wearing?‑‑‑Jeans.
And how did he have his penis out of his pants?‑‑‑Out the fly.
Did you notice - can you describe his penis?‑‑‑I tried to look - ignore it.
You tried to ignore it. Did you notice anything about it to start with?‑‑‑He was fiddling with it.
When you say he was 'fiddling with it', what with?‑‑‑His hands.
Was his penis soft or hard?‑‑‑I can't quite remember.
Did he say anything when he came into the room? Not that I - not at first that I remember, but he told us to pull our - pull our pants down.
And did you pull your pants down?‑‑‑I didn't at first. I tried to ignore him and kept trying to pretend he wasn't there and then I eventually did.
Did you notice whether [P] pulled her pants down?‑‑‑She gave in a lot sooner than I did.
… So after you had pulled your pants down, what happened next?‑‑‑He made us lay across my bed.
And what part of your body was touching then?‑‑‑My front.
Could you see [P]?‑‑‑No. I turned my head away.
When he made you lay on the bed, what happened next?‑‑‑He then fingered me.
What do you mean by fingered you?‑‑‑Put his fingers in my vagina.
Again, do you recall how many fingers?‑‑‑No.
How did it feel?‑‑‑It hurt and it was awkward.
Did he say anything again?‑‑‑Afterwards he said not to tell anyone, and that I wasn't allowed to.
All right. Do you recall what happened after that in the room?‑‑‑[P] and I went back to playing our dolls and didn't speak for a while.
Have you - did you speak to [P] about what happened?‑‑‑No.
Do you have any recollection of roughly - by something that happened around that time, what time this occurred, what period?‑‑‑Around the time my younger brother [C] was born.
And why do you think it was around that time?‑‑‑Because there's a home video of him in a little jumping thing in the doorframe and the bed - my bed is in the same position. It's just the cubby isn't in the room and the bed was moved - well, one of the beds (ts 211 ‑ 213).
J was then shown a photograph of her younger brother in a jumping frame. She said that she could see her bedroom in the background of the picture. She pointed out her bed which she said was the one that was closest to the door. The photograph was dated 26 June 2007. It was tendered as exhibit 15 (ts 213).
J had also drawn a picture of her bedroom as at the time of the incident. The picture had been drawn on 23 May 2014. She had marked on this drawing where the appellant was when he first came into the room. She had also marked where she and P were at that time. She had drawn two crosses on her bed and said that that was where the appellant made she and P lie. The position of the bed corresponded to its position as shown in exhibit 15. She also marked where the cubbyhouse was in the room. She said that this cubbyhouse was made of plastic and was yellow, blue and red in colour. The drawing was tendered as exhibit 16 (ts 214 ‑ 215).
J also made a second drawing on 30 April 2013 which depicted the layout of the whole house and items in the rooms. That drawing was tendered as exhibit 17 at the trial (ts 216 ‑ 218).
J then gave evidence regarding count 7. She said that the appellant would often tell her to go to the laundry and wait. She did not recall how old she was when this was occurring. She said that the appellant would come into the room and lock the door. He would cover the 'cat hole'. This was a hole that J's mother had cut into the wall between the laundry and the bathroom. She said that on these occasions the appellant would then lift her on top of the washing machine and pull her pants down. He would then put his fingers into her vagina. She could not recall how many fingers he used. She said this happened 'every few weeks' but then it got less regular. She said that afterwards he would tell her that she was not allowed to tell anyone and she felt scared. She said that the penetration was uncomfortable and it hurt. She could not remember whether there was anyone else in the house when these incidents occurred (ts 219).
J then gave evidence in regard to the incident the subject of count 5. She said that she could recall a time when she and the appellant went to a rubbish tip in a red ute. She said they drove past the old primary school and along the tip road. The last part of that road was gravel and J said that for this part of the journey she sat on the appellant's lap and steered the car. She did not tell the police about that initially because she thought that she 'would get busted for driving without - under age' (ts 221). She said that the appellant said something to the effect of 'can you feel it'. She said that she could feel his hard penis against the back of her leg. On the drive back from the tip the appellant turned off towards an oval and pulled up amongst some trees. He then got out and came around to the passenger side. He opened the door and made J lie down on the seat. She said that he then pulled her pants down and put his fingers into her vagina. This felt uncomfortable. Afterwards he told her that she was not allowed to tell anyone. They then drove home. J drew a picture that depicted the tip road and the oval. She marked on this drawing where she said the incident occurred. This drawing was tendered as exhibit 19 (ts 221 ‑ 223).
J then gave evidence in relation to the incident the subject of count 6. She said that on this occasion she was with the appellant when he was painting a house. She referred to the street address of the house. She said that during the day the appellant took her to a shop. She had marked the location both of the house and the shop on a map that was tendered as exhibit 18 at the trial. She said that they got lunch at the shop and the appellant bought a magazine. They then went back to the house where the appellant made J look at the magazine. She said the magazine had 'naked females' in it and that it was on the kitchen counter when he made her look at it (ts 223).
J said that when she was in year 1 at school she had told a friend something about what was happening. However, she said that she changed the story because she was so young and was scared to say anything. She said that she did not tell her friend the exact truth, but could not remember exactly what she had said. She had said that the appellant and her sister were involved. Police attended and spoke to her. She told them that she had lied. She said that she did this because she was scared of the appellant. She believed that he could behave aggressively and that he had pulled a knife on her mother on one occasion (ts 224 ‑ 225).
J said that there were other occasions when the appellant penetrated her vagina with 'something else'. She said she could not recall exactly when this had occurred but that it felt bigger and it hurt more. She said that the appellant had stopped touching her when she was in year 4 or year 5 of primary school (ts 225).
In cross‑examination J agreed that she struggled to remember all the details because she had tried to forget everything about her childhood. She said, 'I don't remember a lot of things' (ts 231). She also said, 'I remember some things and other memories haunt me'.
P had written a letter to her mother regarding the sexual abuse against her. This then resulted in P going to the police. J said that her mother had told her about the letter and asked if the appellant had done anything similar to her. However, she denied knowing what was in P's letter or ever having read it. She said that she and P had never spoken about the allegations. She said that she was unaware that P was planning to write the letter and it came as a shock when her mother told her about it (ts 241).
J was cross‑examined about the incident the subject of count 4. She gave the following evidence:
I want to ask some questions about the incident in the front bedroom of the [W] address that you have spoken of where you spoke about both [P] and yourself being in the room at the time?‑‑‑Yes.
Okay. Now, as I understand what you said, the incident happened at about the time [C] was born. Is that right?‑‑‑Yes.
And [C] was born in November 2006, is that right?‑‑‑Yes.
So do you remember whether [C] had already been born or was just about to be born?‑‑‑I don't remember.
So when you saw the photograph, obviously the little fellow was six or seven months old then, because that was, I think, taken in July of 2007, do you have a recall of [C] actually being around in the sense of having been born at the time when that incident happened?‑‑‑In my statement I wrote around the time [C] was born because I don't know if it was before or afterwards.
Okay. But it was very close to those - that time then?‑‑‑The only way I know around what time it is, is because that cubby house was purchased around the time [C] was born.
Now, at the time [C] was born, if we use that as a starting point then, you would have been nine years of age?‑‑‑Yes.
Because you were born in November of 1997, aren't you?‑‑‑Yes.
Okay. So you would have been in - around nine years of age and [P] would have been what, almost 12, 10, 11 rather?‑‑‑Yes. She would be 11, around about.
Yes. And your recall is that [P]was definitely present when that particular incident happened?‑‑‑Yes.
There's no mistake about that. Is that right?‑‑‑Yes.
And you remember, both of you, refusing to do what [the appellant] was asking you do initially, didn't you?‑‑‑Yes.
Are you sure it actually happened?‑‑‑I'm 100 per cent positive that happened (ts 244 ‑ 245).

In regard to count 7, J agreed that every time the appellant took her to the laundry he would lock the door. She said he did this by using a deadbolt. She said he did not use anything else to lock the door. She accepted that in her first statement to the police she had said that the incidents in the laundry happened every week, but that in a later statement she had changed this to every few weeks at the start and less regularly after that (ts 246 ‑ 249).
In regard to count 5, J accepted that she could not remember how old she was when this incident occurred. She said that the red ute was the only link to what age that she was. She could not remember why she had gone to the tip with the appellant when she usually tried to stay away from him (ts 251).
In regard to count 6, J agreed that the town where the house and the shop were was small. She was 'to a degree' familiar with the shop. She knew that they sold magazines and food. She did not take particular notice of what magazines were sold at the shop but she could remember the appellant buying a magazine on this occasion that he then showed to her at the house. It was suggested to her that the appellant was flicking through the magazine and only commenting to her on some innocuous content. J disagreed and said that she was very clear that the appellant was focusing her attention on pictures of naked women. She could not remember whether he showed her other parts of the magazine. She agreed that this was not the first magazine of this type that she had seen in the appellant's possession. However, she maintained that the appellant forced her to look at the magazine on this occasion (ts 252 ‑ 255).
J agreed that after telling her school friend that something was occurring between the appellant and her sister P, she had later told police that she had lied. She also agreed that she had never told her mother about these allegations. Nor had she told anyone other than her school friend. She said that she had no idea why the abuse stopped when she was aged 10. She denied making up the allegations and said that she had wished to tell people but was too scared to do so (ts 255 ‑ 257).
In re‑examination, J said that when the family had first moved to the house where count 7 occurred there was no lock on the laundry door. She could not recall when the lock was put on. She said that currently there are two locks on the door but one of them is broken. She could not recall when that occurred (ts 259).

Other evidence

P gave evidence regarding incidents concerning her that occurred in the laundry. She said that there was no lock on the laundry door and that the appellant had wedged the door closed with a broom or a mop. She also said that the appellant had sat her on a clothes dryer in the laundry, though there was also a washing machine in the room (ts 76).
Although J said that P was present when the incident the subject of count 4 occurred, P gave no evidence in that respect. She was not asked either in examination‑in‑chief or cross‑examination about that alleged incident.
P's evidence in respect of counts 3 and 8 ‑ 13 contained a significant amount of detail. This included descriptions of the shed which were corroborated by contemporaneous photographs. A condom was also found in a beanie in the shed which was capable of confirming one aspect of P's evidence. The acquittal on count 1 could be accounted for by the fact that this offence was alleged to have occurred when P was only 5 years old. The acquittals on counts 14 and 15 could be accounted for by the fact that P's evidence in this regard was uncertain. She prefaced her descriptions of these acts of penetration with the words 'I believe' and 'pretty sure'. She said that she believed a rubber mallet was used in respect of count 14 and did not know what the implement was in respect of count 15. A mallet was located in the shed and was swabbed but no DNA was found on it (ts 320).
N, the mother of P and J, gave evidence that on 21 April 2014 P had given her a letter detailing what she alleged the appellant had done to her. N later had a conversation with J and told her about the letter and that P had been sexually abused. N asked J if the same had happened to her. J cried and said that it had (ts 263).
N said that the appellant and P would go to the shed to work on speedway cars. She said that she would sometimes go there unannounced and that the appellant 'never liked it' and got angry and agitated when she was there. N said that the appellant had a 'love/hate' relationship with J and that he would trip her up or bump into her. In contrast the appellant seemed very obsessed with P. He was always asking where she was and what she was doing. There was an occasion when the appellant sent a text message to P saying that when she got home she was to go for a drive with him. They were all in the car together when this occurred. P forwarded the message on to her mother. N later confronted the appellant about it and he said that he just wanted to talk to P about something but would not say what it was (ts 264, 268 ‑ 269).

Summing up

In summing up the trial judge told the jury that they needed to consider the evidence in respect of each charge separately. He told them that their verdicts did not have to be the same and that it did not follow that because they found the accused guilty or not guilty on one count, the same verdict should be delivered on another count (ts 339).
His Honour said that the State maintained that P and J had not colluded and referred to the evidence in respect of count 4 in this regard:
What the State says is that these girls have not colluded; for instance, count 4, which is [J's] complaint about the alleged offending around the time [C] was born, playing with dolls in a cubby in their bedroom. [P], she said, was there. The State would say if they were colluding or if they concocted their stories, they would have both referred to this incident, but they haven't (ts 367).
His Honour also noted that both P and J had said in evidence that they had not discussed the alleged offending with each other. N gave evidence that she had not shown P's letter to J. His Honour pointed out that the prosecution case critically depended on the evidence of P and J and that their evidence was not corroborated. His Honour referred again to the evidence regarding count 4 later in his directions when referring to inconsistencies:
Now, [defence counsel] made the point to you that, with respect to count 4 - that's the cubby incident, the dolls in the front bedroom, the two girls are involved - there's no evidence whatsoever from [P] about this, yet she was two years older, and you would expect her to have some memory of this. And the defence case is that it's just not plausible that [P] wouldn't have some memory of that event (ts 370 ‑ 371).
His Honour directed the jury that it was open to them to find the evidence of a witness persuasive on one matter and not on another. He said that the jury could accept some parts of what a witness said and reject other parts. He said that this applied to both complainants, as it did to any other witness (ts 377).
After again pointing out that the evidence of P and J was not corroborated, his Honour said:
So the position is that you must be satisfied beyond reasonable doubt about the truthfulness of each complainant's evidence before you can convict the accused in respect of the complainant whose case you are considering. You need to look at the case of each complainant separately. You need to consider each count separately. The State case stands or falls on each complainant's evidence. Because of the crucial nature, in this case, of their evidence, and because of the seriousness of the allegations they each make, you must scrutinise their evidence with special care.
In assessing the truthfulness, accuracy and reliability of the evidence of each complainant, you should bear in mind, more so for the older offences than the more recent ones, that the longer the delay between the happening of the alleged offences and the formal complaint to the police in this trial, the greater the possibility of error in the recollection of the incident which gives rise to the offences (ts 381 ‑ 382).
After giving the jury a Longman warning regarding the forensic disadvantages for the appellant as a result of the delay his Honour said:
Taking into account those factors that I have been mentioning, I direct you that it would be dangerous - although it's entirely a matter for you - to find [the appellant] guilty of the charges presented against him in respect of each complainant unless, having carefully scrutinised each of the complainant's evidence with great care and attention, and having paid due regard to it and applying what I have just explained to you about their evidence, you are satisfied beyond a reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of each of them.
If, after having evaluated their evidence with great care and mindful of the matters that I have directed you about, you are satisfied that they are truthful, accurate and reliable, on any particular matter, you can make findings of fact based on their evidence. As I said, we are really conducting 15 trials in this matter. You need to look at the case against [the appellant] separately in respect of each complainant; you need to look separately at each charge. Whether you accept or reject either or both of their evidence is a matter for you but you must be alert to the problems and the difficulties that I have just pointed out (ts 384 ‑ 385).

Ground of appeal - conviction

There is one ground of appeal against conviction. It is as follows:
The verdict on count 4 is unreasonable and cannot be supported having regard to the evidence and the verdicts of not guilty on counts 2, 5, 6 and 7.
Particulars
(a)The complainant's evidence in relation to that count was inconsistent with, or not corroborated by the evidence of [P].
(b)There [sic] complainant's evidence was not supported by any other objective evidence.
(c)There was nothing in the surrounding circumstances to suppose that complainant's evidence on that count was more reliable than it was on counts 2, 5, 6 and 7.
(d)The jury ought to have experienced a similar doubt in relation to count 4 as they experienced on counts 2, 5, 6 and 7.

Inconsistent verdicts - the principles

The principles applicable to an appeal brought on the ground that a verdict is unsafe or unsatisfactory because it is inconsistent with other verdicts given by the jury are well established. The test to be applied by an appellate court is whether the inconsistency is of such character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness. In other words can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact‑finding process in relation to each of the counts: Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82 [18]; McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366.
The function which the law assigns to juries should be respected. Thus if there is a proper way to reconcile the verdicts, consistent with the jury performing their functions as required, it will generally be accepted by an appellate court: McKenzie (367).
Although there are no hard and fast rules in determining whether different verdicts can 'stand together', Owen JA, in DPJB v The State of Western Australia [2010] WASCA 12, set out several points that emerge from the authorities [81]:
1.If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised: Markuleski [67]; R v KET [1998] VSCA 73 [29]. The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction: Duniam v The Queen [1997] TASSC 107. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty: R v LR [2005] QCA 368; [2006] 1 Qd R 435; R v J (No 2) [1998] 3 VR 602, 628.
2.The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted: Lefroy [18]; MacKenzie (367 - 368). Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries: Markuleski [227]; R v Kirkman (1987) 44 SASR 591, 593.
3.In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
4.The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
5.It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non-consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non-consensual.
6.In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts: Markuleski [70]; Strickland v The Queen [2000] WASCA 68 [10]. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury: R v J (1994) 75 A Crim R 522, 540. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first-hand which is not available to an appellate court.
Owen JA then concluded that:
It seems, therefore, that the task of the court in these cases is to review the evidence and to determine whether, as a matter of logic and reasonableness, the different verdicts can stand together. All of the circumstances of the case must be taken into account in making that assessment. It also seems to me that an inability to identify with precision a single factor or a combination of factors that positively explains why the jury acquitted on one or more counts and convicted on others is not necessarily fatal to the integrity of the convictions. The question is whether it was logically and reasonably open to the jury to reach the conclusions that they did [82].

Appeal against conviction - the submissions

The appellant submits that the one feature that distinguished count 4 from J's evidence on the other counts was that she claimed that P was present when the offence was committed. It is submitted that if this is correct it is inconceivable that P 'would not have been in a position to observe the acts and conduct which was the subject of the charge' (written submissions, par 30). It is also said to be inconceivable that P would not have had a recollection of such an extraordinary and significant event given that on J's evidence P was also involved in the incident. It is said that there is otherwise nothing materially different about J's evidence on count 4 from her evidence in support of the remaining counts on which verdicts of not guilty were returned.
The respondent submits that J's evidence in respect of count 4 was more detailed than her evidence on any of the other charges. The respondent notes that P was not asked any questions about this incident and that it is wrong to treat an absence of evidence from P as if it was positive evidence that the event did not occur.

Appeal against conviction - the merits

The absence of evidence from P in respect of count 4 does not significantly advance the appellant's argument. It might well be true that if P was present at the time of the incident she would ordinarily be expected to have a memory of it, although, given that, on P's evidence she herself suffered repeated sexual penetration, there is room for some doubt in this respect. Moreover, even if P was present, according to J she was face down on the bed and may not have seen what occurred. However, P was not asked about this incident in examination in chief or cross examination. There are obvious reasons why defence counsel would not seek to ask about it in cross examination. The absence of evidence from P does not amount to a positive denial that the incident occurred or to a statement by her that she does not recall it. The fact that P gave no evidence in respect of it was a matter pointed out to the jury by the trial judge. He told the jury that in respect of this incident, as with all of the incidents, the evidence of the complainant was not corroborated.
It cannot be assumed that because the appellant was found not guilty in respect of the other counts involving J that the jury must have had a reasonable doubt about her credibility generally. Each of the counts relating to J was in regard to a separate incident. The circumstances relating to each of those incidents may have differed such that the jury could be satisfied in respect of count 4 but not the other counts. It is necessary, therefore, to consider the evidence in respect of each of the counts.

Count 2 was alleged to have occurred between 23 November 2003 and 18 December 2004. At this time J was 6 years of age. The acquittal on this count can be rationally explained on the basis that the jury heeded the trial judge's Longman warning and scrutinised J's evidence with special care. It is notable that the jury also acquitted on count 1 relating to P when that complainant was also very young. J's evidence in respect of this count was also significantly less detailed than in respect of other counts.
Count 5 involved the allegation of digital penetration on an occasion that J went with the appellant on a trip to the rubbish tip. J's evidence included details such as a description of the journey, the car that was used, what was said by the appellant and identifying the location of the incident on a map. However, some of the details, in particular those relating to J sitting on the appellant's lap while he was driving, had not been provided in J's first statement to the police. This was an inconsistency that may have caused the jury to doubt J's reliability on this count. When cross‑examined, J conceded that she did not know how old she was when this incident occurred and that her only reference point was the red ute. In contrast, in respect of count 4, J was able to place the incident by reference to the birth of her younger brother and the acquisition of the cubbyhouse, both of which were, it was open to the jury to consider, more likely to be significant to a child than when the family owned a particular car. There was also the fact that count 4 was alleged to have occurred in the home, whereas count 5 was alleged to have occurred while the appellant was alone with J on a drive to the tip. There was a potential inconsistency here in that J gave evidence that at this time she was trying to avoid the appellant. That might be thought to make it less likely that she would have accompanied the appellant on the drive to the tip. Whilst J provided drawings in respect of both count 4 and count 5, the location of her bed was confirmed by a contemporaneous photograph in respect of count 4.
Count 6 was the charge of indecent dealing relating to the pornographic magazine. In his police interview, the appellant admitted having bought a 'picture' magazine but denied showing it to J. J's evidence was that the appellant had made her look through the magazine and that it included pictures of naked women. J did not know why she had accompanied the appellant on this occasion, given her expressed reluctance to be in his presence. The vagueness of the description of the contents of the magazine may have caused the jury to adopt a cautious approach in respect of this charge. It is also possible that the jury adopted a merciful approach given the relative unimportance of this offence when compared to the other charges they were considering.
Count 7 was an allegation of digital penetration in the laundry. J's evidence in this regard was that this had happened frequently and it was therefore difficult to know which particular incident formed the basis of the charge. J gave evidence that on each occasion the appellant would cover the cat hole and lock the door. However, she was unable to say how the appellant covered the cat hole and her evidence about locking the door was inconsistent with P's evidence. P had given evidence that there was no lock on the laundry door and when she was taken to the laundry the appellant had used a mop or broom to wedge the door closed. This was an inconsistency which the trial judge drew to the attention of the jury. The appellant, during his video interview, had also said that the laundry door did not have a functioning lock.
The evidence in respect of count 4 was different in a number of material ways from that in respect of the other counts. Firstly, J provided more detail about this incident than most of the others. In particular, J's evidence included locations of the people and furniture at the relevant time. Secondly, her evidence as to the location of her bedroom and bed were confirmed by a contemporaneous photograph. Thirdly, unlike counts 5 and 6, this incident occurred in the family home. The occurrence of incidents out of the home might have been thought by the jury to be unlikely given J's expressed reluctance to be alone with the appellant. Fourthly, J's evidence on counts 5 and 7 was inconsistent with other evidence, whereas on count 4 there was no similar inconsistency. Fifthly, while J said that in some respects her memory was poor she said that she was '100% positive' that the count 4 incident had occurred.
In our view, the verdicts of not guilty on the other counts involving J have reasonable explanations arising from the evidence that specifically relates to each of those counts. There is a proper basis for distinguishing the evidence in respect of count 4 from that in respect of the other counts. The verdict on count 4 can stand together with the verdicts on the other counts as the product of a logical and reasonable exercise of fact finding. It was open on the evidence for a reasonable jury to find the appellant guilty of count 4 but not guilty of the other counts relating to J.
For these reasons we would refuse the extension of time to appeal against conviction and dismiss that appeal.

Ground of appeal - sentence

There is one ground of appeal against sentence. It is as follows:
There has been a miscarriage of justice as a result of fresh evidence of the applicant's mental condition which, had it been known to the sentencing judge at the time of sentencing, would have resulted in a lesser sentence being imposed.
Particulars
(a)the applicant has been diagnosed by Dr Daniel de Klerk as suffering from schizophrenia.
This ground of appeal relies on a matter that it is said has come to light since the date of sentencing. It is conceded that the appellant is unable to sustain any argument that there was any express or implied error in the exercise of sentencing discretion insofar as it was based on the information available at the time. The only matter in issue is whether the appellant has suffered a miscarriage of justice because fresh evidence has emerged which, had it been known to the sentencing judge would have resulted in a lesser sentence being imposed.

Evidence before the sentencing judge

The appellant was aged 33 years of age at the time of sentencing. He left school at 15 and worked in a number of different jobs. He formed a relationship with N when he was 19 and they have one child together, a son who was aged 7 or 8 years of age as at the sentencing date. The appellant did not have a significant problem with drugs or alcohol, nor did he have a significant criminal record.
The sentencing judge was provided with both psychological and psychiatric reports. The psychological report stated that the appellant presented with high levels of anxiety and depression. The appellant maintained a stance of denial, which made it difficult for the psychologist to determine the factors that influenced the offending (psychological report dated 23 June 2014, page 2).
The psychiatric report provided to the sentencing judge was prepared by Dr Daniel de Klerk and was dated 4 August 2014. In that report Dr de Klerk stated that the appellant had reported that he had suffered from depression on and off 'for a number of years'. The appellant had been briefly hospitalised in 2013 and again in 2014. These admissions followed the police investigation. The admissions were in the context of 'psychosocial stress related to the index offending, depression and suicidal ideation'. The diagnosis following those admissions was initially adjustment disorder but this was later changed to major depressive disorder (psychiatric report dated 4 August 2014, page 3).
The appellant reported to Dr de Klerk that he first had contact with mental health services in 2006 after an employer noticed that he might be depressed. He saw a general practitioner at that time and was prescribed an antidepressant. The appellant described his general experience as 'mainly stress and struggling' though he also described 'slight stages of hearing of voices but nothing out of hand'. The appellant was taking an antidepressant medication and an antipsychotic medication with 'reported good effect'. Dr de Klerk's opinion was that the appellant's presentation was best described as a 'major depressive disorder, recurrent episodes, in full remission'. He considered that this depressive illness was being well‑treated with a combination of medications (psychiatric report dated 4 August 2014, page 6).
Dr de Klerk noted that the appellant did not report having symptoms of severe depression or other serious mental illnesses at the time of the offending. He formed the opinion that the diagnosed major depressive disorder had no causative relationship to the offending. The appellant was not cognitively impaired at the time and would have appreciated the moral wrongfulness of his conduct (psychiatric report dated 4 August 2014, page 8).
Dr de Klerk did not consider that a sentence of imprisonment would weigh more heavily on the appellant than it would on a person in normal health. He said that the appellant appeared to have adjusted well to prison routine. He recommended that the appellant be reviewed regularly by the prison primary healthcare provider. There was no suggestion in this report that the appellant suffered from schizophrenia (psychiatric report dated 4 August 2014, page 8).
The sentencing judge referred to both reports and it is not suggested that he misrepresented the contents of the reports or failed to take them into account.

Sentences

His Honour imposed sentences of:
•3 years' imprisonment on counts 3, 4 and 8;
•7 years' imprisonment on count 9;
•4 years' imprisonment on count 10;
•5 years' imprisonment on counts 11 and 13; and
•6 years' imprisonment on count 12.
Counts 3, 4 and 9 were ordered to be served cumulatively and for totality reasons the other sentences were made concurrent. This produced a total effective sentence of 13 years. The aggregate sentence was backdated to 15 May 2014 to take into account time in custody. An order was made that the appellant was eligible for parole.

The application to adduce fresh evidence

By an application dated 8 December 2016 the appellant has applied for an order pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to adduce two more recent reports of Dr de Klerk, dated 29 August 2016 and 23 November 2016.
The first additional report states that following the appellant's sentencing he was initially detained at Hakea Prison. He was seen by a mental health nurse on 24 October 2014 when he reported increasing anxiety, irregular sleep pattern and ruminating during the day when not busy, which became worse at night. The mental health nurse did not consider that the appellant had a serious mental illness and he was not referred for psychiatric follow‑up. He was transferred to Albany Regional Prison on 1 December 2014 and examined by a general practitioner on 23 December 2014. A doctor noted signs of anxiety and depression but did not have the opinion that the appellant was psychotic. At a subsequent consultation on 20 January 2015 the doctor noted that the appellant had depression (psychiatric report dated 29 August 2016, page 3).
On 17 March 2015 the appellant requested a consultation with a mental health nurse at Albany Regional Prison. He told the nurse that he had been troubled by demons in his head. He presented as quite distressed and perplexed. He reported receiving messages from the television, radio and newspapers. He said that he had a history of visual hallucinations. Dr de Klerk reviewed the appellant as a treating psychiatrist on 30 March 2015. In his opinion, the appellant was psychotic and thought disordered with thought blocking and auditory hallucinations. His opinion was that the appellant was suffering from a psychotic depression or a psychotic illness that 'developed in prison'. He went on to say:
It was also my suspicion that [the appellant] may have been increasingly unwell over a period of months and that his symptoms may have avoided detection by medical and custodial staff due to his quiet nature. I increased [the appellant's] antipsychotic medication at that time (psychiatric report dated 29 August 2016, page 4).
Dr de Klerk reviewed the appellant on 20 April 2015 and was undecided as to whether his psychotic presentation was due to a psychotic depression or a long‑term serious psychotic mental illness such as schizophrenia. By June 2015 the appellant's mental had much improved, though there was a relapse by 21 July 2015. Dr de Klerk again increased the dose of antipsychotic medication. When reviewed on 4 August 2015, the appellant reported experiencing auditory hallucinations and that he had done so 'for some time'. Dr de Klerk again increased the dose of antipsychotic medication. By 18 August 2015 there was some improvement and the antipsychotic medication was reduced due to the side effect of a dramatic increase in blood cholesterol. The appellant immediately experienced a deterioration of his mental state such that on 1 September 2015 he again presented as thought disordered and perplexed. At this time Dr de Klerk was still considering that the appellant may have a mood‑related psychotic illness. He nonetheless started the appellant on a different antipsychotic medication. There was some improvement but when reviewed on 16 September 2015 the appellant presented with 'bizarre complaints'. Dr de Klerk considered that the appellant's case presented a 'diagnostic conundrum'. A brain scan did not reveal any intercranial abnormalities (psychiatric report dated 29 August 2016, page 5).
Over the following two months there was significant improvement and by 24 November 2015 Dr de Klerk was of the opinion that the resolving psychosis was most probably a psychotic depression that was slowly responding to medications. In early April 2016 the appellant decided to cease his antipsychotic and antidepressant medication. He said that this was due to adverse side effects to his skin. Dr de Klerk was impressed with how well the appellant presented after his decision. On 24 May 2016 the appellant requested that his medication be restarted due to his low mood. An antipsychotic medication and a different antidepressant medication were prescribed. An improvement was noted when the appellant was next reviewed on 9 June 2016. A further improvement was noted on 20 June 2016. A mental state examination was conducted on 2 August 2016 when he presented as somewhat perplexed and with a flat and restricted affect (psychiatric report dated 29 August 2016, page 6).
Dr de Klerk concludes that the appellant has a psychotic illness that impairs his cognitive thinking. He also reports visual and auditory hallucinations, although these are not obvious to others and may avoid detection by nursing or custodial staff. He gives a differential diagnosis of schizophrenia or a recurrent major depressive disorder with psychotic features. Both of these conditions represent serious mental illness with significant impairment in executive functioning (psychiatric report dated 29 August 2016, page 7).
The second additional report of Dr de Klerk states that the appellant 'suffers from an enduring psychotic illness, most probably schizophrenia'. He states that it is difficult to say whether the appellant's illness will present issues or difficulties for him in prison. He does not present as a management problem because his illness manifests as thought disorder causing him to be perplexed and resulting in negative symptoms such as avolition and a disinclination to interact with others. This means that he does not attract undue attention in the prison system. This is not to say that he does not experience distress or the adverse effects of a psychotic illness (psychiatric report dated 23 November 2016, page 2).
Dr de Klerk says that 'in an ideal world' the appellant would be admitted to a psychiatric in‑patient facility for observation and treatment. The resources for this to occur in the prison system are limited. Dr de Klerk has not considered involuntary admission as in his opinion the appellant is fully capable of giving informed consent to his treatment. Nor do the risks related to his illness satisfy the severity criteria contained in the Mental Health Act 2014 (WA). The appellant requires ongoing assessment and monitoring of his treatment. Dr de Klerk says that this is theoretically possible in a prison environment but requires that he be seen and examined by mental health staff on a regular basis (psychiatric report dated 29 November 2016, page 2).

Fresh evidence on an appeal against sentence - relevant principles

The general rule is that an appeal court must decide an appeal on the evidence and material before the court below: s 39(1) Criminal Appeals Act. However, s 40(1)(e) provides a broad discretion to admit other evidence on an appeal.
Section 41(4) also permits the court, when deciding an appeal that does or may require it to impose a sentence, to take into account any matter, including any material change to a person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard. Arguably s 41(4) is only relevant where the court has found error and is exercising the sentencing discretion afresh or considering whether to exercise the residual discretion to dismiss the appeal: The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [41] (McLure P), [220] ‑ [224] (Buss JA); The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 [27] (McLure JA). This is reinforced by the fact that s 39 refers to the power to admit evidence under s 40 as being an exception to the rule that the court must decide an appeal on the material before the court below but does not refer to the power under s 41(4). In any event, there is no reason to think that s 41(4) has any broader application than s 40(1)(e) has been interpreted as having.
The test to be applied in determining whether additional evidence should be admitted under s 40(1)(e) in an appeal against sentence is whether, had the additional evidence been before the sentencing judge, a different sentence should have been imposed: Wheeler v The Queen [No 2] [2010] WASCA 105.
A distinction is usually drawn between matters which existed but were not known at the time of sentencing and matters which have come into existence since the time of sentence. In Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Newnes JA (with whom Pullin JA & Mazza JA agreed) said [29] ‑ [32]:
It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday [1981] 2 NSWLR 177,178; R v Vachalec [1981] 1 NSWLR 351, 353 - 354; R v Babic [1998] 2 VR 79, 80 - 81; El-Jaklh v The Queen [2011] NSWCCA 236 [26] - [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 - 354); Anderson v The Queen [2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].
Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time: R v Nguyen [2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police [2010] SASC 115 [68] - [69]. The additional evidence was sought to be adduced on that basis.
It was submitted on behalf of the appellant that the evidence before the sentencing judge concerning the capacity of the Department to provide appropriate care and treatment for him was in material respects inaccurate or inadequate. It was contended that it was apparent from the additional evidence that the Department does not in fact have the capacity to provide the level of care and treatment expected by the sentencing judge on the basis of the evidence before her, with the result that the appellant's medical condition is deteriorating more rapidly than envisaged and imprisonment is more burdensome on him than expected. Had the true capacity of the Department to provide appropriate care and treatment been before the sentencing judge a different sentence should have been imposed.
It was, however, accepted by counsel for the appellant (correctly in my view) that if the expected care and treatment was within the capacity of the prison authorities to provide, it was not sufficient for the appellant to show that it was not in fact being provided to him (appeal ts 20). That, if it were the case, was an administrative matter to be attended to by the relevant authorities: see Vachalec (354).
See also MacCauley v The State of Western Australia [No 2] [2017] WASCA 65 [45] ‑ [46].

There have been cases where evidence of an offender's medical condition which came to light after sentence has been admitted on appeal: Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539; Li v The Queen [2000] WASCA 340; MacCauley. In Gulyas the offender was diagnosed with terminal cancer after sentence had been imposed. Additional evidence was accepted as being relevant and admissible. However, it was noted that the cancer had been present at the time of sentencing but not confirmed. This occurred in a context where leave to appeal had already been granted in respect of grounds alleging that the sentence was manifestly excessive and the new material only added support to those grounds [28].
In Li there was evidence before the sentencing judge that the offender had a paranoid personality with the possibility of the development of schizophrenia. On appeal, evidence was admitted showing that the offender had developed schizophrenia after sentence had been imposed. The offender's sentence was reduced so as to make him immediately eligible for parole. The court in that case considered that subsequent events had thrown a different light on circumstances which existed at the time of sentencing. Although Li has some features in common with the present appeal there are important differences. In particular, the appellant in Li had an inability to communicate with prisoners and prison staff because of language barriers and the lack of social supports. The medical evidence in Li was to the effect that the prison environment was not conducive to his psychiatric care. There was also evidence in Li that imprisonment would place a greater burden on him because of his mental illness. Furthermore, Li was decided before the Criminal Appeals Act came into effect and the issues raised in Colwell were not considered.
In MacCauley the appellant was sentenced on the basis that she suffered an adjustment disorder, but that this did not reduce her moral culpability. About a month after being sentenced she was seen by a psychiatrist who concluded that the original diagnosis was incorrect and that the appellant was in fact suffering from a moderately severe major depressive disorder. This disorder pre‑dated sentencing and there was a 'considerable causal relationship' between it and the offending. The appeal against sentence was allowed and the length of the original sentence of immediate imprisonment was reduced.

Appeal against sentence - the merits

Mental illness is a matter that may be relevant in the exercise of sentencing discretion. The principles in this regard have been recently referred to in Vucemillo v The State of Western Australia [2017] WASCA 37 [36] ‑ [38]:
The relevance of mental impairment in the exercise of the sentencing discretion has been explained in a number of cases in this court, including Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Gok v The Queen [2010] WASCA 185. This court has referred with approval on a number of occasions to R v Tsiaras [1996] 1 VR 398, 400, where the Court of Appeal of Victoria said that there were at least five ways in which mental impairment may be relevant:
'First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.'
Those principles do not apply only to offenders with a serious psychiatric illness. They apply to any offender who, either at the time of offending or at sentence, has a mental disorder, abnormality or impairment of mental function: Krijestorac [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
It is clear, however, that while a mental impairment will ordinarily be relevant to the sentencing of an offender, it is not the case that it will always result in a lesser sentence. The existence of a mental impairment is simply one factor which must be balanced with other factors to produce a just sentence. The part that it plays in the sentencing of an offender must always depend upon the particular facts and circumstances of the case. In some cases, it may be relevant in more than one respect and not affect the outcome because it weighs in the balance both positively and negatively. Thus, for example, the existence of a causal connection between the mental impairment and the offence might reduce the importance of general deterrence but increase the importance of particular deterrence or of the need to protect the public: R v Engert (1995) 84 A Crim R 67, 71; Wheeler v The Queen [7]. There may also be cases where there is no causal connection between the mental impairment and the commission of the offence, but the mental impairment may be important to considerations such as rehabilitation or the need for treatment outside the prison system: R v Engert. It may also be relevant where as a consequence of the mental impairment imprisonment would weigh much more heavily on the offender than on an ordinary prisoner: Thompson [77]; Tsiaris, 400.
It was believed at the time of sentencing that the appellant suffered from a depressive illness. Though he exhibited some psychotic symptoms at that time there was no suggestion that he suffered from schizophrenia. Nonetheless he had received both antidepressant and antipsychotic medication to some apparent positive effect.
Dr de Klerk's more recent diagnosis of schizophrenia is guarded. The original diagnosis of psychotic depression remains open as a possibility. It is also unclear whether the appellant's condition has developed since he was sentenced or is one of long standing. The distinction is important because, in light of the principles set out above, it bears directly on whether the evidence should be admitted. However, even if the appellant had undiagnosed schizophrenia at the time of sentencing, the additional evidence does not establish that a different sentence should have been imposed (s 31(4) Criminal Appeals Act) for the reasons that follow.
In the years since he was sentenced the appellant has displayed some symptoms which appear to be more consistent with schizophrenia. There is not, however, any suggestion that this is an illness that the appellant had at the time of the offending or that it in any way contributed to that offending. The additional evidence does not mitigate the offending or reduce the appellant's culpability.
The real issue is whether, by reason of his mental illness, imprisonment will be a significantly more harsh punishment for the appellant than it would be for a person in sound mental health. This is not established by the evidence. The appellant's mental health has fluctuated significantly and seems to have responded well to treatment with medications. Whilst treatment in a mental hospital may be ideal, there is no suggestion in Dr de Klerk's reports that the appellant cannot be properly treated in prison. Nor is it established that the appellant will suffer significantly more in prison by reason of his mental health.
In any event, a deterioration in mental health is not a factor that invariably leads to a conclusion that a sentence is unjust. Other factors such as the seriousness of the offending and the importance of general deterrence need to be taken into account: Gok v The Queen [2010] WASCA 185 [58] ‑ [61]. General deterrence is a factor of particular importance in respect of sexual offences involving children. In this case the offending involved two young children of whom the appellant was a de facto parent. The offending continued over a four to eight‑year period and involved multiple acts of penetration. The impact on the victims was significant. The appellant took the matter to trial and maintained his stance of denial.
Cases which justify the intervention by an appellate court on the basis of fresh evidence of a health condition which has developed since the time of sentencing are exceptional. Management and care of prisoners is the responsibility of the prison authorities. Where it is within the power of the authorities to take steps to ensure that proper treatment is given then it would not be appropriate for this court to intervene: Smith v The State of Western Australia [2010] WASCA 176 [68].
Even if the additional evidence met the criteria for admissibility it does not establish that the sentences imposed were unjust. An appeal against sentence may only be allowed if the court is of the opinion that a different sentence should have been imposed. If not of that opinion the appeal must be dismissed: s 31(3) and (4). For those reasons, the applications to adduce additional evidence and for an extension of time to appeal against sentence should be refused.

Orders

We would make the following orders:

CACR 153 of 2016:

1.Application for an extension of time refused.
2.Appeal dismissed.

CACR 154 of 2016:

1.Application to adduce additional evidence refused.
2.Application for an extension of time refused.
3.Appeal dismissed.