M v The Queen - [1999] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: M -v- R [1999] WASCA 52

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 14 MAY 1999

DELIVERED : 15 JUNE 1999

FILE NO/S: CCA 196 of 1998

BETWEEN: M
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 6 of 1999

BETWEEN :THE QUEEN
Appellant
AND
M
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction - Claim that counsel for accused misled as to time of first complaint in respect of offence of sexual relationship - Evidence of complainant, a child, taken at pre-trial hearing - Contention that accused should have been permitted to recall complainant for further cross-examination - No miscarriage of justice

Criminal law and procedure - Sentencing - Sexual relationship - Sentence of 4‑1/2 years' imprisonment substituted for sentence of 3 years' imprisonment

Legislation:

Nil

Result:

Appeal against conviction dismissed

Crown appeal against sentence allowed

Representation:

CCA 196 of 1998

Counsel:

Appellant: Mr M R Gunning
Respondent: Mr S P Pallaras & Ms L B Black

Solicitors:

Appellant: Gunning
Respondent: Acting State Director of Public Prosecutions

CCA 6 of 1999

Counsel:

Appellant: Mr S P Pallaras & Ms L B Black
Respondent: Mr M R Gunning

Solicitors:

Appellant: Acting State Director of Public Prosecutions
Respondent: Gunning

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

R v Grein [1989] WAR 178

Case(s) also cited:

Cameron v The Queen (1990) 2 WAR 1
Kirk v The Queen, unreported; CCA SCt of WA; Library No 980067; 17 February 1997
Re Knowles [1984] VR 751
R v Anderson (1997) 92 A Crim R 348
R v Birks (1990) 19 NSWLR 677
R v Boyle (1987) 34 A Crim R 202
R v Pinder (1992) 8 WAR 19
R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998
R v Yates (1998) 99 A Crim R 483
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995
Woods v The Queen, unreported; CCA SCt of WA; Library No 940388; 28 July 1994

KENNEDY J On 27 November 1998, after a trial by jury, the appellant was convicted of having had a sexual relationship with his son ("R") between 1 February 1994 and 25 May 1995, R being then a child under the age of 16 years. R had been born on 10 March 1987 and accordingly, as at 1 February 1994, he was just approaching his seventh birthday. On 18 December 1998, the appellant was sentenced to a term of imprisonment of 3 years. It was ordered that he be eligible for parole.
The prosecutor had applied for an order directing that R's evidence be taken at a pre‑trial hearing, it being a Schedule 7 proceeding under the Evidence Act 1906. That evidence was taken on 25 March 1998.
Shortly prior to the taking of R's evidence, the solicitors for the appellant had requested information from Dr M C Parker, who at the time of the request was a paediatric registrar at the State Child Development Centre. He had been transferred from the Princess Margaret Hospital for Children to the Centre in January 1996. In response to the request, the solicitors were forwarded, apparently by the Police Prosecution Branch, a copy of a statement made by Dr Parker, dated 27 September 1996. Unfortunately, we were not provided with details as to precisely how or when this was provided. Counsel for the appellant indicated from the Bar table during the hearing that his knowledge of the request was vague. It appears that the Director of Public Prosecutions did not have a copy of this statement of Dr Parker prior to the pre‑trial hearing.
Dr Parker's statement concluded with the standard declaration by him as to its truth, although it was not witnessed by any person. In his statement, Dr Parker noted that he had seen R on a regular basis since 14 July 1995, initially with R's case worker, but subsequently with his foster mother, Mrs S. He said:
"I have been working both individually with [R] and together with his foster mother primarily on behavioural management since July 1995 and I have observed a marked change in [R]. Initially he was an extremely [scared], agitated, hyper vigilant boy who could not see me without the presence of first the Family and Children's Services case worker and subsequently his foster mother. His play was quite sexualised in nature, eg with dolls in my office. Over subsequent months he became increasingly more confident, although he still required support from his foster mother and would often be very fidgety and restless. [R] told me on several occasions that he was concerned about access visits, [scared] of his father and worried about his mother, although he would not reveal why.
On the 5 February 1996 [R] attended the State Child Development Centre with [Mrs S]. This interview was subsequent to an episode reported by [Mrs S] where [R] was found naked sitting on intellectually disabled lady, Shirley, who was living with them at the time; [R] apparently had his penis in her mouth. This was related to me by [Mrs S] in front of [R]. When I asked him what it was about he said "because dad used to do it to me". I asked him how this made him [feel], he replied "upset". He said "I don't know why I am [scared] of the dark". "Why do you think?" I asked him, and he said "because of what dad did to me". [R] was very agitated and looked toward [Mrs S] for support. [R] said "dad use to do things that aren't suppose to be done, dad has sucked my private parts". I asked him how this made him [feel], he replied "upset". I asked him whether he thought it was his fault and he replied "no". [R] told me he was worried about "[M] hits mum, I want mum to come and live with me". [R] told me "he loved Shirley because she reminds me of mum". I asked him where his father sucked his penis he replied "in my bedroom". I asked him whether it occurred anywhere else, he replied "he use to hit me in the shower". [R] then told me "dad told me don't tell anyone because he would have to go to jail". [R] then told me he was worried about his sister [A]. "[A] might get hurt if she goes home. dad might do the same thing." [A] is [R's] younger sister.
[Mrs S] has observed frequent sexualised behaviour in [R], usually with men. This includes inappropriately kissing strange men. [R] also had on frequent occasions expressed concern about going into the shower and off to bed at night. He had on occasions revealed his genitals to strangers including children at school. [Mrs S] had noted that [R] became very agitated before and after access visits with his parents. …."
Counsel for M had in his possession prior to the taking of R's evidence a statement by Mrs S, dated 24 April 1996, in which she said, amongst other things:
"[R] came to live with me on Wednesday, 26/7/95, as a foster child.
When [R] first came to me he refused to have a shower and would scream, "No, No not the shower".
I asked him why he wouldn't have a shower and [R] told me it was a secret.
After he arrived here he was very destructive and very anti social.
Only now is he becoming more aware of what a real family life should be. He is just starting to use knives and forks, he can't comb his hair, he can't read or write, but he is starting to learn now.
When he first came to me he was very sexual in his actions. He hasn't done anything of a sexual nature since last February."
The statement then made a reference to R's supervised access with his own family before continuing:
"Prior to each access visit he became very [agitated] and would barely sleep the night before. When access was to take place at his family's house he would tell me he didn't want to go because he remembered too much of the bad things that happened to him.
After [R] had been on an access visit with his father he was very [agitated] and very anti social.
Since [R] has been with me he has told me that his father used to hit him when he was in the shower and also squeeze his penis until it hurt. He has also told me that his father used to come into his bedroom at night and then suck his penis."
R had also made a statement, dated 25 April 1996, which was available to the appellant's counsel before the pre‑trial hearing, in which, amongst other things, he said:
"Before I stopped living with mum and dad, my dad used to do things to me all the time.
I can't remember when my dad started doing things to me. He did things to me all the time and was nasty to me all the time.
I remember when I went to Allinjarra Primary School in grade two and before I went to a different school in grade three that dad did things to me all the time when I came home from school right up until I got taken into foster care.
Lots of time when I went into have a shower my dad would come into the bathroom and into the shower and hit me with his hand on my arms and legs.
Dad hit me lots of times on my legs and arms with his hand. He didn't say anything to me when he hit me. When dad hit me in the shower, his shirt and part of his pants got wet.
After dad hit me I would get lots of bruises on my arms and legs.
When dad hit me when I was in the shower he always hurt my private part as well.
By my private part I mean that dad hurt my penis with his hand when I was in the shower.
He has done this lots of times when I lived at home with him. I don't remember when he started hurting my penis with his hand but it happened when I was in grade two and grade three before I went to a foster home.
My dad grabbed my penis with his hand and squeezed it until it hurt me a little bit.
Dad held onto my penis for a little while and then he let go of it.
Dad didn't say anything to me when he grabbed my penis in his hand.
He always did this to me while I was in the shower after he had hit me with his hand.
Dad did this to me nearly everyday when he came into the bathroom when I was having a shower. I always had my shower in the night time, before we had dinner.
I didn't have a shower every single day, but when I did have a shower dad did this to me nearly every time. I don't know how many showers I had each week.
Lots of time my dad came into my room at night time and did other things to me.
I don't remember when dad started doing these things to me but I remember that he has done this lots of times when I was in grade one, grade two and grade three before I went to a foster home.
. . . . . . . . . . . . . . . . . .
Dad came into my room lots of times and took my covers off me.
Dad pulled down my pyjama pants right down to my feet.
Then dad put my penis into his mouth and sucked on my penis with his mouth.
Dad laid next to me on the side of me that was not next to the wall, when he had my penis in his mouth.
Dad sucked on my penis with his mouth for a short then he stopped and went out of my room.
When dad did this to me all the time it was when I had just gone to bed and my bedroom light was still on.
I can’t remember how many times that dad did this to me because he did it lots of times. He did this to me nearly every day.
Dad sometimes didn't say anything to me when he did this. I knew that this was the wrong thing to do because sometimes dad said to me, "Don't you tell anyone or I will go to jail".
. . . . . . . . . . . . . . . . . .
The first person that I told about what dad has done to me was when I went to see Dr Parker at Princess Margaret Hospital.
I told Dr Parker about what dad has done to me about him hitting me and what he does to my penis."
The fact was that Dr Parker had seen R and Mrs S on both 5 January 1996 and 5 February 1996, on the first occasion at Princess Margaret Hospital for Children, and on the second occasion at the State Child Development Centre. On both occasions, R had complained about what his father had done to him. The second consultation had been after the incident involving Shirley, and by reason of it. The statement of 27 September 1996 made no reference to the consultation on 5 January; but it did refer to R's being scared of his father, apparently prior to 5 February 1996. Significantly, it stated clearly that the consultation on 5 February had been at the State Child Development Centre. It did not assert that this was the first occasion on which R had complained of his father's conduct towards him.
The statement of Mrs S did not provide a specific date for R's complaint to her concerning his father. What is said is that at some time after R came to live with her in July 1995, he had told her what his father had done to him. There was no reference to this having occurred in the presence of Dr Parker at Princess Margaret Hospital for Children.
In his statement, R said that the first time that he told about what his father had done to him was when he went to see Dr Parker at Princess Margaret Hospital. On the material before counsel for the appellant, that must have been prior to the time in January 1996 when Dr Parker transferred to the State Child Development Centre, the address of which is shown in his statement as being 4‑6A Rheola Street, West Perth.
It should be apparent from the foregoing that it was far from clear, on the material available to counsel, that the first complaint by R had been made after the incident with Shirley. To proceed confidently upon this basis was, it would seem, unwarranted, and it does not justify any claim that counsel for the appellant was misled by Dr Parker's statement, although it would have justified the making of further inquiries as to when the first complaint was made.
On 25 March 1998, the evidence of R was taken before a Judge of the District Court. In his examination-in-chief, R gave evidence that his father had sexually abused him. He said he had first been abused when he was two years old. The last time on which it had occurred was when he was aged eight. Asked what sexual things his father had done, he replied that his father had pulled his penis a lot of times. He said it had happened at different times of the day. He later said it had happened at night. It would happen when he was alone in his room with his father. He said his father would be touching his penis for a long time and he pulled it hard and he would also suck on his penis. This happened a lot of times. He denied that his father had ever done anything sexual to him elsewhere in the house. He said that the first person he had told about this was Dr Parker, when he was 10. His father was not then doing sexual things to him because R was at that time in a foster home.
In cross-examination, counsel for the appellant questioned R as to his memory, and R confirmed that he had not told anyone about his allegations against his father until he had spoken to Dr Parker. Counsel established the point that it was a considerable time after the incidents complained of when the first complaint was made by R. Counsel then went on to cross-examine R on his evidence regarding the sexual relationship which was the subject of the charge. R strongly denied having made up his story. It is fair to say that counsel made no progress in breaking down R's evidence. R did repeat, however, his evidence that M grabbed his penis only in the bedroom. He reiterated that the first complaint which he made concerning his father was to Dr Parker.
It is apparent that at least one line of argument which counsel for M had been endeavouring to pursue was that it was only after the incident with Shirley had taken place that R had made any complaint concerning his father, the suggestion being that R was fabricating his evidence as to his father's conduct in order to excuse his own conduct. On counsel's application, leave was granted under s 36BC of the Evidence Act 1906 to cross-examine R on this matter. R consistently responded in answer to counsel for the appellant that he had made his first complaint to Dr Parker before the incident with Shirley had occurred. Persistent questioning by counsel on this point did not persuade R to change his evidence, which was absolutely clear on this point.
The Crown case was that M, although he had declined a video interview, had agreed to an interview, in the course of which, he was told, their conversation would be written down. In that interview, he admitted having squeezed R's penis while he was in the shower, but he endeavoured to explain away his conduct by saying that he suffered from migraine headaches, and that cannabis was the only thing which helped him. Without retracting that admission, when asked again what he had done to R, he responded: "I might have squeezed his penis". When asked whether there had been anything else, he admitted putting R's penis in his mouth. He said that he did this when he used cannabis. He said he went into his room and put R's penis in his mouth once a week, he supposed. He then said, "Not every day, maybe once a month or once a week". And then, when asked again how many times, he responded, "I don't know, lots I suppose".
The appellant had also made a statement, which he had signed, in which he acknowledged that sometimes when R was in the shower he had gone in and held his penis and that he might sometimes have squeezed his penis too hard. He acknowledged that he might even have hit R as well. He also admitted that sometimes when he had gone into R's bedroom to kiss him goodnight, he would pull down his pants and put his penis in his mouth. This happened quite often, he said.
The appellant challenged the admissibility of these admissions, claiming that he had acted under duress, that he had not been offered a video interview and that he had not been cautioned. He also denied that his statement contained the truth. A voir dire was therefore conducted on 3 June 1998, before the trial. The admissions were then held to have been made freely and voluntarily, and the learned Judge conducting the voir dire declined to exclude the admissions in the exercise of his discretion.
The trial of M was set down for 11 and 12 June 1998. Two days prior to the date for the commencement of the trial, counsel instructed by the State Director of Public Prosecutions forwarded to the appellant's solicitors copies of three documents, comprising an outpatient sheet from Princess Margaret Hospital for Children completed by Dr Parker, a medical review by Dr Parker dated 7 February 1996 and a psychiatric summary dated 12 January 1996. The outpatient sheet recorded a consultation on 5 January 1996 with R, which had also been attended by Mrs S as R's foster mother, and noted complaints by R of his father's frequently touching him in the bedroom and shower on "naughty places". The letter which accompanied the three documents explained:
"These documents show that the first complaint by [R] concerning his father occurred at an interview with Dr Mark Parker and [Mrs S] on 5 January 1996. The interview regarding the disabled lady Shirley occurred on 7 February 1996. These documents vitiate the line of defence adopted by the accused at the pre‑recording of the complainant's evidence."
On 11 June 1998, counsel for the appellant sought, and was granted, an adjournment of the trial. Subsequently, by agreement between counsel, various portions of R's evidence were edited out of the video recording. Those passages related to the cross-examination of R which had been designed to indicate that the factor which had precipitated the complaint against R's father had been the incident involving Shirley. An application by counsel for the appellant to have R recalled to be cross-examined afresh at the trial was rejected, and the trial proceeded with the edited video recording of R's evidence being played to the jury.
The appellant filed what was wrongly described as a notice of application for leave to appeal against conviction. The grounds of appeal, as amended on the morning of the hearing of the appeal, were as follows:
"1.The Judge was in error in ruling that counsel for the appellant was not misled by the deposition of Dr Parker dated 27 September 1996 in that the first statement of complaint was 5 February 1996, and thereby ruling that the complainant not be cross-examined afresh deprived the appellant of a fair trial.
2.The Judge placed counsel quite improperly in the position of having to agree to his cross-examination based on the deposition of Dr Parker dated 27 September 1996 being deleted, being the only basis of his defence, or an application for rebuttal evidence would have been likely to be admitted without recalling the complainant. In these circumstances, the appellant was deprived of a fair trial.
3.The Judge should have aborted the trial and allowed the appellant to cross-examine the complainant afresh. This procedure not being adopted thereby deprived the appellant of the right of cross-examination free of misconception."

A reading of the transcript plainly indicates that counsel for the appellant had otherwise completed his cross-examination of R at the pre‑trial hearing, when he sought leave to cross-examine R regarding the incident with Shirley. R had already agreed that he did not like his father, that he sometimes told "fibs" and that he sometimes made up stories. The cross-examination made it abundantly clear that R contended, quite rightly, as it turned out, that his first complaint had preceded the consultation with Dr Parker at which the incident with Shirley had first been raised with him. Counsel was still entirely free at the end of his questioning of R regarding Shirley to pursue any further line of cross-examination which he desired, and he did in fact ask a number of additional questions which were unrelated either to the time of the complaint or to the incident with Shirley.
It is frequently the case that, in the course of a trial, counsel is confronted with the stark reality that a particular line of defence cannot reasonably be pursued any further. This was such a case. If it were not, then it was counsel's responsibility to have the position with respect to the time of the initial complaint clarified. He did not do so, and for good cause, because it is obvious that any investigation would merely have confirmed the truth of R's evidence. There was a suggestion that deletions in the tape recording of R's evidence at the pre‑trial hearing was agreed to by counsel on his behalf in the face of a suggestion by the Crown that it would otherwise have to bring evidence in rebuttal. The trial Judge in fact indicated that he would look favourably on permitting such evidence if the deletions were not made. But there was no "evidence" as such to rebut. R had clearly asserted that the first complaint had been made by him prior to the incident with Shirley.
Counsel was invited to indicate what additional questions he would have wished to ask R in the event of his being recalled for further cross-examination or to be cross-examined afresh. No response was forthcoming from counsel. He gave no indication as to how the appellant was prejudiced in any respect by his not having been given that opportunity. All he could say was that he would have cross-examined "differently", without identifying what he meant by that statement. In my opinion, no basis has been shown for quashing the appellant's conviction. He has not been deprived of a fair trial, and there has been no miscarriage of justice. Once it had been ruled that the evidence of the appellant's admissions was admissible, the case against him became very strong indeed. No basis appears for challenging the ruling letting in the admissions, and no attempt has been made to do so. This was not a case in which the only evidence against the appellant was given by the complainant.
In my opinion, the appeal against the appellant's conviction should be dismissed.
The Crown appeals against the sentence of 3 years' imprisonment imposed upon the appellant. That is based on two grounds, as follows:
"1.The learned sentencing Judge erred in the proper exercise of his sentencing discretion by imposing a sentence that was manifestly inadequate having regard to
(a)the nature and frequency of the incidents of indecent dealing and sexual penetration constituting the offence;
(b)the maximum penalty prescribed by Parliament for the offence;
(c)the complete absence of remorse shown by M and the absence of any other significant mitigating factors.
2.The learned sentencing Judge erred by placing undue emphasis on M's wife's need for ongoing care."
The appellant is now aged 40. His wife is intellectually handicapped. She had been living in institutions since she was 15 at the time he first met her. They married after living together for several years and have been married now for some 18 years. In addition to R, there is another child of the marriage, a daughter aged three.
The appellant and his wife have been receiving assistance from Family and Children's Services since R was a baby, mainly due to concerns about Mrs M's ability adequately to care for her children. The children were ultimately removed from the care of their parents in 1995, due to neglect and, in particular, to an unclean physical environment, the children being inadequately clothed, fed and supervised. By reason of her intellectual handicap, Mrs M is very dependent upon her husband. She receives some support from the Disabilities Services Commission and from her local church, but it is unlikely that she will be able to care for her children again on a full time basis. The appellant has been receiving a carer's pension and he derives a small amount of additional income from a computer repair business which he runs from his home.
The appellant's criminal record may be disregarded. He has been before the courts on only one occasion, in 1995, for cultivating cannabis, possessing a quantity of cannabis and for possessing a smoking implement. For those offences he had been fined a total of $300. A pre‑sentence report from a psychologist indicates that the appellant demonstrated no insight into the effect of his conduct on his son, and that he was caught up in the externalisation of blame onto others. It is suggested that he represents a high risk of re‑offending if he does not undergo sex offender treatment.
His Honour referred to R's evidence of many incidents of M's sucking his penis and he was satisfied that the jury would clearly have concluded on the evidence that this had occurred as well as the incidents of pulling his penis.
His Honour took into account the fact that his wife was very dependent upon the appellant and noted that he had cared for his wife over many years and had recently acquired the difficult task of caring for an aging father as well. His Honour indicated that he had some difficulty in finding very much in the way of mitigation. There was no remorse shown by him, although the sexual abuse of a young child in circumstances such as the present may well result in serious developmental and psychological problems in the child later in life. The gravity of the offence is apparent from the length of time over which the conduct constituting it continued, the exploitive nature of the conduct and the gross abuse of trust which it represented. There was also an element of violence involved in the acts giving rise to the offence.
It was, in this case, open to his Honour to consider as a factor in mitigation the impact which a term of imprisonment would have upon the appellant's wife and upon his elderly father. But there was very little information on their needs. There was a suggestion that his wife might have to go back to an institution during the period of the appellant's imprisonment. But nothing more was said about this prospect. So far as the appellant's father was concerned, all that was said was that he relied upon the appellant and was elderly. Moreover, having regard to the serious nature of the crime, which required a deterrent sentence, substantial weight could not, in this case, be attached to this factor - see C C Ruby, Sentencing, 4th edn (1994) at 190 ‑ 191 and D A Thomas, Principles of Sentencing, 2nd edn (1979) at 211 ‑ 213. It does not appear to me that the learned sentencing Judge gave excessive weight to the appellant's family circumstances; but, in my respectful opinion, the starting point which he must have adopted for sentencing was too low measured against the persistent course of conduct involved. In the circumstances, in my view, the length of the sentence imposed is itself such as to warrant the interference of this Court. The overall criminality would, in my view, justify a sentence of 6 years' imprisonment. Having regard to the fact that this is a Crown appeal, involving double jeopardy - as to which see R v Grein [1989] WAR 178 - and having regard also to the appellant's family circumstances, I would substitute for the term of 3 years imposed by his Honour a term of 4‑1/2 years' imprisonment. The order for eligibility for parole should stand.

IPP J: I have read the reasons to be published by Kennedy J. I agree with them and his Honour's conclusions. I have nothing further to add.
WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the orders proposed by his Honour.