MAS v The State of Western Australia
[2012] WASCA 36
•20 FEBRUARY 2012
MAS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 36
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 36 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:40/2011 | 18 OCTOBER 2011 | |
| Coram: | MARTIN CJ PULLIN JA MAZZA JA | 20/02/12 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | MAS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Directions to jury Longman warning Requirement that direction refer to 'actual' as opposed to potential prejudice from substantial delay Reference to prejudice to police from delay Direction viewed as a whole when assessing its adequacy to avert risk of miscarriage of justice Criminal law Direction to jury Crofts direction Turns on own facts Criminal law Sentencing Sexual offences against children Plea of not guilty |
Legislation: | Children and Community Services Act 2004 (WA), s 101(1) Criminal Code (WA), s 325, s 329(2), s 329(4) Evidence Act 1906 (WA), s 36BD Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 AMS v The State of Western Australia [2012] WASCA 37 Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 EPD v The State of Western Australia [2011] WASCA 264 FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 Gaulard v The Queen [2000] WASCA 218 GBT v The State of Western Australia [2009] WASCA 19; (2009) 192 A Crim R 483 Gok v The Queen [2010] WASCA 185 JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187 Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 Narkle v The State of Western Australia [2011] WASCA 160 R v Bennett (1901) 10 QLJ 147 R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 R v Mazzolini [1999] VSCA 150; [1999] 3 VR 113 R v MWL [2002] VSCA 221; (2002) 137 A Crim R 282 R v Sorlie (1925) 25 SR (NSW) 532 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 The State of Western Australia v Prince [2011] WASCA 22 VIM v The State of Western Australia [2005] WASCA 233; (2005) 158 A Crim R 243 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MAS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 36 CORAM : MARTIN CJ
- PULLIN JA
MAZZA JA
- CACR 42 of 2011
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 872 of 2010
Catchwords:
Criminal law - Directions to jury - Longman warning - Requirement that direction refer to 'actual' as opposed to potential prejudice from substantial delay
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- Reference to prejudice to police from delay - Direction viewed as a whole when assessing its adequacy to avert risk of miscarriage of justice
Criminal law - Direction to jury - Crofts direction - Turns on own facts
Criminal law - Sentencing - Sexual offences against children - Plea of not guilty
Legislation:
Children and Community Services Act 2004 (WA), s 101(1)
Criminal Code (WA), s 325, s 329(2), s 329(4)
Evidence Act 1906 (WA), s 36BD
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr T F Percy QC
Respondent : Mr J A Scholz
Solicitors:
Appellant : D G Price & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457
AMS v The State of Western Australia [2012] WASCA 37
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
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Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
EPD v The State of Western Australia [2011] WASCA 264
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
Gaulard v The Queen [2000] WASCA 218
GBT v The State of Western Australia [2009] WASCA 19; (2009) 192 A Crim R 483
Gok v The Queen [2010] WASCA 185
JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187
Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Narkle v The State of Western Australia [2011] WASCA 160
R v Bennett (1901) 10 QLJ 147
R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241
R v Mazzolini [1999] VSCA 150; [1999] 3 VR 113
R v MWL [2002] VSCA 221; (2002) 137 A Crim R 282
R v Sorlie (1925) 25 SR (NSW) 532
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The State of Western Australia v Prince [2011] WASCA 22
VIM v The State of Western Australia [2005] WASCA 233; (2005) 158 A Crim R 243
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- MARTIN CJ:
Summary
1 The appellant was convicted of 25 offences of sexual abuse of the daughter of his de facto wife, after trial by judge and jury in the District Court. He was sentenced to various terms of imprisonment for those offences, the combined effect of which was a total sentence of 12 years imprisonment with eligibility for parole. He has appealed against his conviction and against the severity of the sentences imposed. For the reasons which follow, both appeals should be dismissed.
The appeal against conviction
2 There are three grounds of the appeal against conviction. Leave to appeal has been granted in respect of the first ground, and the question of leave to appeal reserved to this court in respect of the remaining grounds. All grounds assert that the trial judge misdirected the jury. Because the grounds of appeal are relatively confined in their scope, a brief overview of the course of the trial will provide a sufficient context for the consideration of those grounds.
The charges and verdicts
3 The appellant was tried jointly with the woman who had been his de facto wife but who had become his wife prior to the laying of the charges. The indictment contained 30 counts. The first 29 of those counts alleged that the appellant had sexually abused the complainant in various ways. Count 30 alleged that the appellant's wife, being the person having the care or control of the complainant, who was then a child, had engaged in conduct knowing that the conduct may result in the child suffering harm as a result of sexual abuse, contrary to s 101(1) of the Children and Community Services Act 2004 (WA). The essence of count 30 was an allegation that the appellant's wife had encouraged her daughter to have sexual intercourse with the appellant.
4 At the close of the prosecution case, the trial judge ruled that the appellant had no case to answer on counts 17 and 28 on the indictment, and directed acquittals in respect of those counts. The jury found the appellant not guilty of counts 26 and 27 on the indictment, but returned verdicts of guilt on the remaining 25 counts. The jury also found the appellant's wife guilty of the charge brought against her. Her appeal against her conviction was heard immediately after these appeals. My reasons for dismissing that appeal will be published simultaneously with
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- these reasons: see AMS v The State of Western Australia [2012] WASCA 37.
The prosecution case
5 The prosecution alleged that the appellant engaged in a sustained course of sexual abuse of the complainant over a period commencing on an unknown date in either 1999 or 2000, when the complainant was about 11 years old, and ending in December 2007, when the complainant was 18 years of age. All but the last count against the appellant (count 29) alleged various forms of sexual abuse of the complainant while the appellant knew her to be his de facto child. Those allegations included digital penetration of the vagina, penile penetration of the vagina, penile penetration of the anus, fellatio, cunnilingus and indecent dealing by showing the complainant pornographic material while placing her hand on his penis, shaving her pubic hair and showing her pornographic computer images. Count 29 on the indictment alleged that the appellant sexually penetrated the complainant without her consent after she had attained the age of 18 years, by penetrating her vagina with his penis. The prosecution alleged that the frequency of the appellant's sexual abuse of the complainant increased significantly during 2005, when the complainant was 16 and learning to drive. The prosecution alleged that the appellant took the complainant driving on a number of occasions, and that on almost every occasion they drove to secluded areas where the appellant had sexual intercourse with the complainant. The prosecution asserted that the counts on the indictment relating to this period were only representative of more numerous instances of sexual misconduct which were not the subject of specific counts on the indictment because of the complainant's inability to recall and distinguish separate and specific instances of sexual misconduct over this period. The prosecution also alleged that around this time the complainant became pregnant to the appellant, after which he insisted that she have an abortion and thereafter take contraceptive medication.
6 The complainant first complained to police with respect to the appellant's conduct in May 2009. This was approximately nine years after the first alleged offence, and a little under two years after the last alleged offence. The prosecution alleged that the complainant was a vulnerable child who suffered a mild physical disorder and who was socially isolated, being the only child in the family home with limited access to other people outside school time. The prosecution further alleged that the complainant's mother was in the thrall of the appellant, relying upon the evidence of her encouraging her daughter to have sex with the appellant,
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- and was therefore unlikely to have been seen by her daughter as a haven of protection from the abuse she was suffering. The prosecution also alleged that the appellant threatened to kill the complainant if she told anyone of the first offence committed against her, and made similar threats on subsequent occasions. The prosecution put to the jury that the significance of the complainant's delay in making complaint should be evaluated in all the circumstances, including those which I have specifically identified.
7 The prosecution relied principally upon the evidence of the complainant who in her evidence in chief gave direct evidence confirming the events the subject of the counts on which the appellant was convicted. The complainant was cross-examined at length, during which it was put to her that none of the sexual activity which she had related ever took place. The complainant refuted those assertions. A recurrent theme pursued in cross-examination was the complainant's failure to complain of the appellant's conduct, and in particular, her failure to complain to either her mother or her biological father.
8 The prosecution also relied upon other evidence which was said to reinforce the complainant's evidence. As that evidence is the subject of ground 3, I will refer to it in more detail when addressing that ground.
The defence case
9 The appellant gave evidence, as did his wife. The appellant denied that any of the sexual activity described by the complainant had taken place. The appellant's evidence was to the effect that as the complainant approached physical maturity, she made sexual advances towards him, which he rejected.
The directions to the jury - overview
10 The judge commenced his charge to the jury with conventional directions with respect to the burden and standard of proof, and the need to separately consider each charge against each accused. In that context, he observed, correctly, that the critical question in the case was whether the jury accepted beyond reasonable doubt that the complainant's evidence was honest, true and reliable (ts 806). Conventional directions were then given with respect to the elements of each of the various offences alleged, and which are not attacked in any ground of appeal.
11 The trial judge provided the jury with a brief summary of the evidence given by witnesses other than the complainant, and of the
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- evidence given by each accused. Following that review of the evidence, the judge listed the matters upon which the prosecution relied to reinforce the evidence given by the complainant, which his Honour described as 'supporting evidence' (ts 840). In that context, the jury were directed that they could only take the matters enunciated by the judge into account if they found the evidence relating to those matters 'to be truthful and accurate' (ts 843). The jury were also directed that if, in relation to any particular charge, they entertained a reasonable doubt with respect to the reliability, honesty and truth of the complainant's evidence, they could not use the 'supporting evidence' to cure that doubt.
12 The trial judge then gave a direction with respect to the significance of delay in the investigation and prosecution of the charges against the appellant, the detail of which will be considered in the context of ground 1 of the appeal.
13 The jury were then given a direction with respect to the drawing of inferences, in the course of which the jury were told that they could only draw an inference adverse to the accused if it was the only inference that was reasonably open (ts 851). However, this direction was only related to the case against the appellant's wife.
14 The judge then summarised to the jury the case that had been put on behalf of each accused.
15 Finally, the judge gave directions to the jury with respect to the way in which they should approach the issues relating to the complainant's delay in making complaint regarding the sexual misconduct which she alleged took place. Those directions will be considered in more detail in the context of ground 2.
Ground 1 - Longman direction
16 Ground 1 is in the following terms:
1. The Learned Trial Judge failed to give an adequate Longman warning.
PARTICULARS
- a. It was not sufficient for the Learned Trial Judge to point to the actual disadvantages suffered by the appellant as a result of the failure to complain.
- b. It was necessary for the Learned Trial Judge in the circumstances of this case to direct the jury that it would be dangerous to convict.
- During the course of oral argument, two additional particulars of complaint with respect to the direction given by the trial judge emerged, namely:
c. the Trial Judge erred by referring to the effect of delay on the investigation conducted by police;
d. the Trial Judge erred by directing the jury that they should take 'special care' when evaluating the prosecution case, and should have directed the jury to use 'great care'.
But may I remind you that the State cannot succeed if you do not accept [the complainant's] evidence to be honest, accurate and reliable beyond reasonable doubt in respect of each charge, remembering the separate trials direction. I'm now going to give you a direction in relation to an issue which Mr Rodgers brought up in his summing up, or his address to you. And that is the delay between the alleged commission of these offences and the investigation being launched. I'm not talking about delay in complaining. I'm going to come to that and deal with that later. I'm simply talking about - well, I'm going to give you a direction which is intended to make you mindful of the difficulties that can arise when there's a long gap between the alleged offending and the investigation - or at least the bringing of the allegations to the attention of the suspect. You should take carefully into account that the earliest of these offences is alleged to have happened some 10 years ago, and the latest some three years ago. They are allegations of serious sexual crimes. No complaint was made until some years after most of these allegations are said to have occurred. [The complainant] was a young girl at the beginning of this period and human memory is fallible. The longer the delay, the more opportunity there is for error, and particularly is that so for events occurring in childhood. It is a matter of common experience that the longer you believe something to have happened, the more convinced you are that it has happened. This can be so even if you are mistaken in your recollection. As I've said, human memory is fallible and that honest witnesses can be wrong in their recollection. Also bear in mind that because of the long delay in the making of complaints to the authorities in respect of the earlier counts on the indictment, the evidence of [the complainant] cannot be tested as fully as the later counts. See, for example, how evidence in relation to the purchase of the John Deere tractor was used to place the alleged incident regarding count 28 after [the complainant's] 18 [sic] birthday. By reason of the delay, [the appellant] - and the police, for that matter - may have lost the opportunity to investigate and bring
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- forward matters of defence, exculpatory matters we call them, and to test the evidence of [the complainant]. For example, as I've said to you, his computers were said to have been sold with the business in 2006, and the opportunity to do reliable forensic tests on the upholstery of the car seems to have been lost according to the forensic officer who came along, although that's a matter for you - whether or not they were lost - or to establish some things like an alibi. You'll recall evidence was given that the [appellant and his wife] went to Queensland in May 2007. So all those sorts of things, the opportunities to look at diaries and travel itineraries and phone records and all these sorts of things which are capable of supporting an alibi, are lost with the passage of time. The direction which I'm giving you is based on the experience of the courts of the difficulty that accused people, and the police for that matter, have in cases - because it's the police's duty to find all evidence, not just inculpatory but exculpatory. It's their job to go out there and investigate. As has been said to you, the defence aren't required to prove or disprove anything. The police are the investigators. So as I was saying, it's the experience of the courts that accused people and police, insofar as they're required to carry out investigations, can have difficulties with the effluxion of time. So in such cases where there has been this delay, it is particularly important that you scrutinise the complainant's - in this case, [the complainant's] - evidence with special care. In that respect, the State points to the various pieces of supportive evidence that I've referred to you. So the State says well, you have the supportive evidence and that can assist you when you assess [the complainant's] evidence. It is your duty, as a matter of fact, to consider the supportive evidence which I have directed you as capable of supporting the State case, against [the appellant]. But it's for you to determine first whether you accept the evidence as reliable, and next whether in your opinion, as judges of the fact, it does in fact support the State case. So although I have said the evidence is a matter of law capable of supporting the State case, it's for you to say whether in the facts of this case you accept it, and it's for you to say whether you regard it as being supported in the fact of [the complainant's] evidence. If you do not find any supporting evidence, then you must particularly regard the warning I've given you about the difficulties associated with the delay between any offences being allegedly committed, and the accused or the police learning of the allegations and having an opportunity to look into them. In that case, even in the absence of supporting evidence, you are at liberty to act on [the complainant's] evidence and convict [the appellant] of the charge you are considering if you are satisfied beyond reasonable doubt of its truth, honesty and reliability - having scrutinised it with special care, and having considered the circumstances relevant to that evidence to which I've referred, and taking full account of the directions that I've given you (ts 846 - 848).
18 It is common ground (and beyond doubt) that the circumstances of the case required the trial judge to give a direction in accordance with the principles enunciated in Longman v The Queen [1989] HCA 60; (1989)
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- 168 CLR 79, and which have been refined in later cases. In Longman, the plurality (Brennan, Dawson & Toohey JJ) observed:
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice (91).
The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury [45].
- Hayne J observed at [140] - [142]:
The critical feature of the circumstances I have described is that many years had elapsed between the time of the alleged conduct and the accused being put on notice of the allegation. That lapse of time inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without proper direction. …
... what has come to be known as a 'Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its
- evaluation and paying heed to the warning, were satisfied of its truth and accuracy.
20 It is clear from the passages in Crampton which I have set out that a majority of the court in that case endorsed two propositions relevant to this case:
(a) the jury must be directed that an accused suffers real and actual prejudice when there is a substantial delay in the investigation and prosecution of the case - a reference to possible or potential prejudice is inadequate;
(b) the direction must be given with an 'unmistakable and firm voice' - that is, as a direction which the jury is obliged to follow, as opposed to a comment which a jury may or may not accept: see Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49] - [50].
21 Although adverse comments have been made in the New South Wales Court of Criminal Appeal with respect to the first of these propositions, namely, the requirement that the direction refer to actual, as opposed to potential prejudice (R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241), a later decision of the same court (JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187) has affirmed the requirement, as have a number of decisions of this court: see, for example, AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [140] - [146]; EPD v The State of Western Australia [2011] WASCA 264 [70].
Particular (a) - actual prejudice
22 The appellant complains that the direction given by the trial judge in this case was inadequate because it did not refer to the actual prejudice suffered by the appellant, but only to the possibility or potential that the appellant may have suffered prejudice by reason of delay. In support of that complaint, the appellant points to the following portions of the direction:
1. 'I'm going to give you a direction which is intended to make you mindful of the difficulties that can arise when there's a long gap between the alleged offending and the investigation';
2 '[b]y reason of the delay, [the appellant] … may have lost the opportunity to investigate and bring forward matters of defence … and to test the evidence of [the complainant]';
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- 3. '[the appellant's] computers were said to have been sold with the business in 2006, and the opportunity to do reliable forensic tests on the upholstery of the car seems to have been lost according to the forensic officer who came along, although that's a matter for you - whether or not they were lost - or to establish some things like an alibi'; and
4. 'it's the experience of the courts that accused people … insofar as they're required to carry out investigations, can have difficulties with the effluxion of time'.
23 However, these portions of the direction must be read in the context of the Longman direction as a whole. At a number of points in that direction, the trial judge referred to the prejudice suffered by the appellant by reason of delay in terms which made it clear that he was referring to actual prejudice, and not merely possible prejudice. Specific reference is made to actual prejudice in the following portions of the direction:
1. 'because of the long delay … in respect of the earlier counts on the indictment, the evidence of [the complainant] cannot be tested as fully as the later counts';
2. 'the direction which I'm giving you is based on the experience of the courts of the difficulty that accused people … have in cases [of delay] … to find all [exculpatory] evidence';
3. 'all these sorts of things, the opportunities to look at diaries and travel itineraries and phone records and all these sorts of things which are capable of supporting an alibi, are lost with the passage of time'; and
4. 'you must particularly regard the warning I've given you about the difficulties associated with the delay between any offences being allegedly committed, and the accused or the police learning of the allegations and having an opportunity to look into them'.
It is significant that in these portions of his direction, the trial judge referred to the prejudice which delay causes to an accused person in testing the evidence of the complainant, and in assembling evidence to support his or her defence. Those are, of course, the critical components of the prejudice suffered by an accused person in the event of significant delay.
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24 When an appeal is brought on the ground of a misdirection, it is generally inappropriate to determine the appeal on the basis of an assessment of a small portion or portions of the direction read in isolation. Rather, the direction given to the jury must be viewed as a whole for the purpose of assessing whether the direction given was adequate to avert the risk of a miscarriage of justice - see R v Bennett (1901) 10 QLJ 147; R v Sorlie (1925) 25 SR (NSW) 532 and Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298, 315 (Windeyer J).
25 In the present case, when the portions of the direction given by the trial judge relating to the prejudice occasioned by delay are read as a whole, in my view, the jury can have been left in no doubt that they were being directed, in terms which they were obliged to follow, that the appellant had suffered actual prejudice as a consequence of the delay in the investigation and prosecution of the complaints against him. I therefore reject the appellant's assertion that the direction given by the trial judge was inadequate in this regard.
Particular (b) - 'dangerous to convict'
26 The appellant complains that the trial judge did not direct the jury that, having regard to the prejudice to the appellant arising from the delay in the investigation and prosecution of the case against him, it would be 'dangerous to convict'.
27 The High Court used the expression 'dangerous to convict' in each of Longman and Crampton. Intermediate appellate courts in Australia have suggested that those words should be used because they give the appropriate sense of emphasis to the direction - see for example R v Mazzolini [1999] VSCA 150; [1999] 3 VR 113 [76] (Ormiston JA).
28 However, as Pullin JA (Martin CJ & Le Miere AJA agreeing) observed in GBT v The State of Western Australia [2009] WASCA 19; (2009) 192 A Crim R 483, there are many decisions of this court which establish that:
There is no particular formula or prescribed set of words which have to be used and nor does the word 'dangerous' have to be used. .... What is necessary is that the jury understands by a warning appropriate to the particular case the difficulty the accused faces and the risk of a miscarriage of justice if uncorroborated testimony forms the only basis of conviction [27].
- See the decisions in AM v The State of Western Australia [128]; Gaulard v The Queen [2000] WASCA 218 [14] (Miller J, Ipp & Heenan JJ
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- agreeing); Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169; and Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37] (Owen J, Pidgeon & Ipp JJ agreeing).
29 Accordingly, in the present case, the question is whether the direction given, read as a whole, conveyed, with appropriate emphasis, the forensic disadvantage suffered by the appellant, and the risk of a miscarriage of justice arising from that prejudice, particularly if the uncorroborated testimony of the complainant provided the only basis for conviction, notwithstanding that the trial judge failed to use the expression 'dangerous to convict'.
30 On two occasions during the course of the relevant portion of the trial judge's direction to the jury, he directed them to scrutinise the complainant's evidence with 'special care' because of the prejudice to the appellant arising from delay. In that context, he drew particular attention to what he had described as the 'supporting evidence', and emphasised to the jury that the prejudice to the appellant arising from delay, and the risks associated with relying upon the complainant's evidence would be increased if they did not accept the supporting evidence as reliable and that it did in fact support the prosecution case. Those portions of the direction are also to be weighed in the context of the directions which I have set out above which specifically drew the jury's attention to the actual prejudice suffered by the appellant, in the particular circumstances of the case. Taking the relevant portion of the direction as a whole, it would have been unmistakeably clear to the jury that they were being directed to scrutinise the evidence of the complainant with special care because of the actual prejudice suffered by the appellant as a result of the delay, that the jury should only act upon the complainant's evidence if satisfied beyond reasonable doubt of its truth, honesty and reliability, and that the risk of injustice would be increased if they were to act only upon the evidence of the complainant. In the circumstances of this case, directions to the jury which embodied and emphasised those propositions were sufficient to avoid the risk of a miscarriage of justice which has been referred to in Longman and subsequent cases.
Particular (c) - prejudice to the police
31 The appellant complaints that on four occasions in the course of the portion of the direction which I have set out above, the trial judge referred to the prospect that the police may also have been prejudiced in the conduct of their investigation of the case as a consequence of the delay in making complaint. The State properly accepts that it would have been
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- better if the trial judge had made no reference to this aspect of the consequences of delay. The dangers inherent in the course taken by the trial judge were succinctly identified in GBT by Pullin JA (Martin CJ & Le Miere AJA agreeing):
However, before moving on to the next ground, I should mention one aspect of the trial judge's direction which is not the subject of any ground of appeal but which was undesirable. His Honour said that the effluxion of time had 'to a degree hampered … both the prosecution and the defence'. His Honour then went on to say that the impact upon the appellant was 'considerably greater' than the impact on the prosecution. In my opinion a trial judge should not refer to the impact of delay on the prosecution case. Such a direction may encourage the jury to think that perhaps the case would have been much stronger if there had not been such delay. The onus is on the prosecution to prove its case whatever the difficulties it might face. The accused is presumed to be innocent. The only warning to be given is a warning about the impact on the accused. The jury should not be distracted by irrelevant references to practical difficulties that the prosecution might have. In this case, having mentioned the point, the trial judge then stressed the particular disadvantage which the appellant faced and so there was no miscarriage of justice [30].
His Honour first instructed the jury that the delay similarly handicapped the police in investigating the complaints. I doubt that the jury would have interpreted that statement as one directed to efforts by the police to critically examine the complaints rather than gather further evidence supporting the complainants. In my view, the explanation of the difficulties imposed upon the defence by delay was significantly diluted by a statement, which the jury may well have construed as excusing any deficiencies in the Crown case. Further, the warning, which the High Court has said is required in like circumstances, was reduced from one of the danger of convicting the applicant to a somewhat vague statement of the lapse of time creating a potential for error [15]. (emphasis added)
33 In each of these passages the danger identified as arising from a reference to prejudice to police investigations as a result of delay is the prospect that the jury might think that the case against the accused may well have been stronger, but for that prejudice, and that this impression might neutralise, or at least diminish the significance of the warning they had been given with respect to the prejudice suffered by the accused as a consequence of delay. In this case it is significant that on the first occasion the trial judge made reference to prejudice to the police as a result of delay, he placed that prejudice in the context of the lost
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- 'opportunity to investigate and bring forward matters of defence, exculpatory matters we call them, and to test the evidence of [the complainant]'. That proposition was reinforced on the second occasion upon which the trial judge made reference to prejudice to the police, when he referred to 'the police's duty to find all evidence, not just inculpatory but exculpatory'. By those statements, the trial judge neutralised the prospect that the jury might have erroneously thought that he was suggesting that the prosecution case may have been stronger, but for the delay in the conduct of the police investigation. To the contrary, it must have been clear to the jury that the trial judge was referring to another means by which the appellant may have suffered prejudice, because of the reduced capacity of the police to test the evidence of the complainant, or to investigate and reveal matters which may have adversely affected the complainant's credibility, and which the police would have been obliged to disclose.
34 Accordingly, in this case, as in GBT, although it would have been much better if no reference had been made to prejudice to the police investigation as a consequence of delay, the risk occasioned by the references made to that matter by the trial judge were not such as to cause a miscarriage of justice.
Particular (d) - 'special care'
35 The appellant complains that on two occasions the trial judge directed the jury that they should take 'special care' rather than 'great care' when referring to the scrutiny which he directed them to give to the complainant's evidence, relying upon the reference to 'great care' in each of Longman and Crampton.
36 However, there is no material difference between a direction requiring the jury to scrutinise the complainant's evidence with 'special care', and a direction to the effect that the jury should take 'great care' when evaluating that evidence. Further, the authorities to which I have referred, which establish that no particular terminology is required if the direction achieves the requisite objectives, compel the conclusion that the appellant's complaint must be rejected.
37 For these reasons, the various assertions made with respect to the alleged inadequacy of the Longman direction given by the trial judge must be rejected.
(Page 17)
Ground 2 - the Crofts direction
38 Ground 2 is in the following terms:
2. The Learned Trial Judge failed to give the jury an adequate Crofts direction.
PARTICULARS
- a. The Learned Trial Judge gave a direction as required by section 36BD of the Evidence Act but failed to give a direction as referred to by the High Court in Crofts v R (1996) 186 CLR 427.
b. The Learned Trial Judge should have directed the jury that failure to complain was a matter which they could take into account in relation to each of the counts in the indictment in their assessment of the complainant's credit.
c. The failure to give such a direction was a serious error in this case where there was a long delay in the making of the first complaint.
40 Section 36BD of the Evidence Act 1906 (WA) provides:
Lack of complaint, jury warning about
Where on the trial of a person for a sexual offence or an offence under Chapter XXII of The Criminal Code (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the
(Page 18)
- complainant or to suggest delay by the complainant in making any such complaint, the judge shall -
(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
41 In Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, the High Court considered the meaning of a provision in the legislation of Victoria to the same effect. In that case the trial judge had, in effect, directed the jury that they were not entitled to rely upon evidence of a lack of complaint to infer that the complainant's evidence was untruthful. The High Court allowed the appeal against conviction, on the basis that the trial judge had misconstrued the relevant legislation. The effect of the legislation was explained by the plurality in the following terms:
The two subparagraphs [of the Victorian provision] merely require that the judge should warn the jury that delay in complaining does not necessarily indicate that the allegation is false and that there may be good reasons for hesitation in complaining. ... The use of the adverb 'necessarily' is critical to the operation of [the Victorian provision]. Delay in complaining may not necessarily indicate that an allegation is false. But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false (448). (original emphasis)
42 In FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313, Wheeler JA explained the impact of the High Court's decision in Crofts upon s 36BD of the Evidence Act in the following terms:
I would understand Crofts as saying no more than that a trial judge's direction, where a case involves a delay in complaining in respect of offences of a sexual nature, must make it clear to the jury that the jury is permitted to consider whether that failure casts doubt upon the complainant's credibility. Of course, the statutory direction required by s 36BD must always be given [94].
- See also Narkle v The State of Western Australia [2011] WASCA 160 [54] - [58] (Buss JA, McLure P & Hall J agreeing).
43 The relevant portion of the direction given by the trial judge was as follows:
(Page 19)
- Now, one last direction to give to you, ladies and gentlemen, and then I'm finished and you're starting. And it's to do with the cross-examination you've heard of [the complainant] and the submissions that have been put to you about her delay in complaining earlier than she did of the alleged abuse. It was put to her, and she was asked why she made no immediate complaint to various people to whom it was suggested she might have complained in the circumstances, officials from the school; doctors; her mother; her natural father; [Ms L] and people like that. The inference in that line of questioning is that the events did not in truth happen, because if they had happen [the complainant] would have complained immediately, or at events, sooner than she did. These questions were proper and the answers to them need to be considered by you in assessing [the complainant's] truthfulness. Both counsel for the defence submitted to you that it's inherently unlikely that a person such as [the complainant] would have failed to make immediate complaint or sooner complaint if these things had really happened. Delay in complaining is a relevant matter. It is something for you to consider and it for you to weight its significance. But I must point out to you that the absence of complaint or delay in making a complaint that one has been sexually assaulted or sexually abused does not necessarily indicate that the matters complained of did not happen. A person such as [the complainant] might have good reasons for not complaining immediately or sooner. Bearing that in mind it is for you to determine what degree of significance to give to any delay in complaining. You've heard her explanations for the delay and you've seen her give her explanations. She said basically that she lived in fear of [the appellant]. That she had a control over him [sic] stemming back to the first time when he said that she was to tell no one and would kill her if she did. And it wouldn't matter if he went to jail for it he would still kill her. In other words what she was saying is it was a long term threat. Ms O'Connor [the prosecutor] also referred to other considerations in her submissions. In effect, she invited you to consider whether [the complainant] was so conditioned and knew it or used to keeping quiet. Or in such a difficult situation that she remained complaint [sic: compliant] and silent over the relevant period. These matters are for you to judge. But absence of complaint or delay in complaining does not necessarily mean that the allegation that the offence was committed is false. There may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of the offence alleged (ts 859 - 860). (emphasis added)
44 That direction was entirely in accordance with each of s 36DB of the Evidence Act, and the principle enunciated in Crofts. Having regard to the portions of the direction which I have italicised, it must have been abundantly clear to the jury that delay in making complaint was a matter upon which they could rely to conclude that they were not satisfied beyond reasonable doubt that the complainant's evidence was truthful, accurate and reliable, and therefore, fail to be satisfied beyond reasonable doubt that the sexual misconduct which she alleged had in fact occurred.
(Page 20)
45 This ground of appeal is without substance. Leave to appeal should be refused.
Ground 3 - corroborative evidence
46 Ground 3 is in the following terms:
The Learned Trial Judge erred in his directions to the jury concerning corroboration evidence by failing to direct the jury that any such evidence which was capable of having a significance, reasonably consistent with innocence should not be used as evidence which corroborated the prosecution case or the complainant's credit.
PARTICULARS
a. The Learned Trial Judge identified 11 aspects of the evidence relied upon by the prosecution as being corroborative of the complainant's evidence and/or the prosecution case generally.
b. A number of these issues were equivocal and not, even if accepted as being true, consistent unequivocally with guilt, including,
a. [the complainant's mother's] evidence about occasionally seeing blood-stained underwear in the wash;
b. [the complainant's mother's] evidence of finding [the complainant] shaving her pubic hair;
c. [the complainant's mother's] evidence about there being occasionally semen stained clothing belonging to [the appellant] in the wash;
d. [the appellant's] evidence that he and the complainant occasionally went to Leary Road and Doghill Road during driving lessons;
e. the fact that the complainant requested and started to take the contraceptive pill.
c. The Learned Trial Judge ought to have specifically directed the jury that where any of these issues was reasonably consistent with innocence or that they were not satisfied that there was any inference reasonably open other than one consistent with guilty, that they could not use that aspect of the evidence as supportive of the prosecution case or the complainant's testimony.
d. The standard direction generally in relation to inferences was insufficient to discharge the obligation to give such a direction in relation to this aspect of the case.
(Page 21)
47 I have referred in general terms to the direction given by the trial judge with respect to what he called 'supporting evidence'. After referring in only the most general terms to the complainant's evidence, the trial judge introduced his directions on the topic the subject of this ground in the following way:
The State relies on other aspects of the evidence as supporting its case. Some of that evidence emerged during the testimony of [the appellant] and [his wife]. As I said, once they go into the witness box, they're witnesses like everyone else. And as I've also said, it's not all or nothing with every witness. So the State relies on parts of their evidence to support its case as well as other aspects of the evidence. I'm going to briefly itemise those aspects and give you some directions of law about parts of it. So these aspects, other than [the complainant's] evidence, about each charge on the indictment I'm going to call it the supporting evidence, okay? It's just a handle. So I'm talking about the evidence not directly on each charge on the indictment which the State says supports its case, so that's why I'm going to call it supporting evidence. I emphasise at the outset that none of the aspects of the supporting evidence is proof, in its own right, either alone or in combination with other parts of the supporting evidence, of the State's case. You can only find [the appellant] guilty if [the complainant's] evidence is accepted beyond reasonable doubt, in other words as being honest, true and reliable, in relation to the particular charge that you are considering (ts 840).
48 The trial judge then listed 11 items which he described as the supportive evidence relied upon by the State, including the items particularised in this ground of appeal. The trial judge identified to the jury the ways in which the State relied upon those matters, including as tending to show that the appellant was sexually attracted to the complainant, as tending to explain why the appellant was confident that the complainant would submit to sexual contact with him, why she would be compliant when he made sexual advances and as tending to explain why the complainant did not complain about his conduct earlier than she did. He then directed the jury:
So the State says you need to know, not just about the counts on the indictment, but you need to know what was going on around about the same time as helping to explain what [the complaint] did, or didn't do and why she was doing it, or not doing it. Now, you can only use the evidence of the behaviour of [the appellant] which is not on the indictment and if you - of this kind, if you find it reliable and believe it to be true. That is if you find the evidence about it to be truthful and accurate. If you do find the evidence to be truthful and accurate, you can consider the evidence, along with all the other evidence, to decide whether the State has proved each charge beyond a reasonable doubt. Or even if you accept the evidence of these events to be true, you should always bear in mind that
(Page 22)
- your task is to decide whether the State has proved, beyond reasonable doubt, that [the appellant] committed the act for which he's been charged, remembering the separate trials direction. You cannot deliver a verdict of guilty, unless having considered all the evidence, you're satisfied, beyond reasonable doubt, that [the appellant] is guilty of the charge that you are considering. In other words, you accept the reliability, honesty and truth of [the complainant's] evidence about that charge, beyond reasonable doubt. In other words, you can't move from the general to the particular. If you've got a reasonable doubt about a particular charge, you can't use your satisfaction of evidence about the general scenario as curing that reasonable doubt. But in assessing whether the State has proved its case, and whether you accept [the complainant's] evidence, you are entitled to take into account your findings in relation to other issues in so far as it helps you to understand the background and what was going through her mind at the relevant time. Now, if you don't accept [the complainant's] evidence about these other matters, then conversely that's something you can take into account in assessing her credibility (ts 842 - 843).
49 The submissions advanced in support of this ground presuppose that this portion of the direction concerned the extent to which the jury might rely upon circumstantial evidence to draw an inference of fact which constitutes an indispensible link in the chain of reasoning to the guilt of the accused - relying upon Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579.
50 However, the argument is misconceived, because the presupposition upon which it is put is flawed. This was not a case in which the jury were invited to use circumstantial evidence to draw an inference enabling them to make a finding of fact upon which the guilt of the accused depended. This was a case in which the complainant gave direct evidence of the appellant's commission of all the acts necessary to sustain a conclusion of his guilt. The trial judge directed the jury on a number of occasions that they could only find the appellant guilty if they were satisfied beyond reasonable doubt that the evidence of the complainant was honest, reliable and accurate. In the portions of the direction to which I have referred, he expressly directed the jury that what he described as 'the supporting evidence' was incapable of providing a process of reasoning towards a conclusion of guilt independent of the jury's acceptance of the complainant's evidence. The trial judge correctly directed the jury that the only use to which they could put the supporting evidence was in their evaluation of the credibility of the complainant's evidence. Accordingly, this was not a case in which the principles enunciated by the High Court in Shepherd had any application, at least in relation to the appellant.
(Page 23)
51 It should also be noted that the trial judge instructed the jury that they could not place any reliance upon the supporting evidence unless they found it 'reliable and believe[d] it to be true', and at another point, if they found it to be 'truthful and accurate'. Immediately after making those remarks the trial judge reminded the jury that their task was to decide whether the State had proved, beyond reasonable doubt, that the appellant had committed the acts for which he had been charged. This could well have created an impression in the mind of the jury to the effect that they could only rely upon the supporting evidence to the extent that they were satisfied that the matters the subject of that evidence were established beyond reasonable doubt. To that extent, the direction given by the trial judge tended, if anything, to impose a more exacting standard of proof in relation to the evidence of context and surrounding circumstances relied upon by the State than that imposed by law.
52 There is no substance in ground 3, and leave to appeal should be refused. For these reasons, the appeal against conviction should be dismissed.
The appeal against sentence
53 For the purposes of sentence, the trial judge made the following findings of fact, which are not challenged.
The facts found for the purposes of sentence
54 Over a period of seven years or so between 2000 and 2007 the appellant repeatedly sexually abused the complainant who was the daughter of his de facto wife. The first offence occurred while the complainant was 11 or 12 years old. The appellant digitally penetrated the complainant's vagina and then physically intimidated her and told her that he would kill her if she told anyone what he had done. He said that he did not care about going to gaol and that if he did go to gaol he would kill her when he was released. This threat was repeated on other subsequent occasions.
55 Every sexual encounter occurred without the consent of the complainant in fact, irrespective of whether or not consent could legally be given by her. In many instances she resisted verbally and physically.
56 The complainant was a vulnerable child. She had a mild physical disorder, was bullied at school and was separated from her biological father most of the time. Additionally, she was an only child and had limited access to other people outside school hours. To the extent that she
(Page 24)
- suffered the abuse without complaint, she did so because she lived in constant fear of the continuing threats made by the appellant and had become conditioned to the abuse and was unable to see any alternative but to submit to it. The appellant had brought stability and financial security to her mother and the complainant was socially isolated. This resulted in the complainant feeling under the control of the appellant. Also, in some instances, the appellant used physical force to overwhelm the complainant’s efforts to repel him.
57 During 2005, the offending escalated significantly. During this period the complainant was learning to drive and the appellant took her driving on a number of occasions. On almost every occasion on which they went driving the appellant drove to secluded areas and had sex with the complainant. The convictions in respect of this time period were only representative of the more numerous instances of sexual conduct that the complainant recalled.
58 The complainant was subjected to various forms of sexual abuse including vaginal and anal penetration, cunnilingus and fellatio. She was forced to perform sexual acts for the sole gratification of the appellant and was particularly humiliated and mistreated during certain of the sexual acts. For example, the instances of anal penetration involved acts of violence which left her bleeding and in pain. The manner of the appellant's offending confused her and he would often suddenly have sex with her before, as she described, 'discarding' her.
59 Initially, the appellant used no adequate form of contraception, save for when he occasionally ejaculated outside of the complainant's body which was itself a humiliating and degrading act. When the complainant was 16 years old, she fell pregnant and was obliged by the appellant to have an abortion. The appellant's attitude regarding these events was callous and indifferent. He told her that it was her fault and her responsibility. After this incident the complainant regularly took the contraceptive pill.
60 By 2007 the power exercised by the appellant over the complainant's life was so great that he had obtained the complicity of her mother who, at that time, encouraged the complainant to have sex with the appellant.
61 The offences committed against the complainant have left her deeply troubled. She has engaged in drug abuse, promiscuity and other negative behaviours, and her ability to trust others has been adversely affected. She also suffers from an eating disorder.
(Page 25)
62 The facts found with respect to each specific offence follow.
63 Between January 1999 and December 2000, when the complainant was about 11 years old, the first instance of offending occurred and consisted in the appellant penetrating the complainant's vagina with his fingers (count 1). She found this very painful.
64 The following offences then each occurred on separate occasions between July and December 2001, when the complainant was roughly 12 years old. The appellant penetrated the complainant's vagina with his penis for roughly 15 - 20 minutes (count 2). She cried throughout. He continued to have sex with her until he ejaculated. He placed her hand on his erect penis and forced her to watch pornography (count 3). He indecently dealt with her by shaving her public hair (count 4). After this he continued to oblige her to shave her public hair. He showed the complainant pornographic images as part of a course of conduct which amounted to grooming her for his offending (count 5).
65 On one occasion between July and December 2001 the appellant committed the following offences as part of a highly aggressive, violent and humiliating series of events. He penetrated her vagina with his fingers (count 6), engaged in cunnilingus (count 7) and penetrated her anus with his penis (count 8). During this encounter the appellant slapped the complainant on her head and physically prevented her from escaping. She was highly distressed. This particular episode was motivated by the appellant's jealous belief that the complainant was being unfaithful to him as well as his fear that his offending would be discovered.
66 Between approximately 2002 and 2004 there was a relative hiatus in offending. During this period the appellant continued to emotionally abuse the complainant as well as to commit some relatively lower-level acts of indecent dealing for which no charges were laid.
67 At some point between January and December 2004, when the complainant was roughly 15 years old, the appellant forced the complainant to have sexual intercourse on the ground in an isolated location (count 9). She was frightened and crying during this encounter. He ignored this and continued until he ejaculated.
68 Between January and May 2005, when the complainant was roughly 16 years old, the appellant forced his penis into her mouth (count 10). Despite her efforts to resist he masturbated until he ejaculated. On another occasion during this period the appellant had sexual intercourse with the complainant until he ejaculated (count 11).
(Page 26)
69 Between January and September 2005, when the complainant was 16 years old, the appellant penetrated her vagina with his fingers (count 12), performed cunnilingus (count 13) and then had sexual intercourse until ejaculation (count 14). These three offences all occurred on one occasion. On another occasion during this time the appellant had sexual intercourse with the complainant on the ledge of a car boot in circumstances which were described as being particularly exploitative (count 15).
70 On one occasion between October and November 2005 the appellant required the complainant to perform fellatio on him until he ejaculated into her mouth (count 16). The complainant spat the ejaculate onto the ground and then vomited. This was the first instance of offending after the complainant had her abortion.
71 As already noted, a directed acquittal was entered on count 17 which alleged that the appellant had engaged in cunnilingus.
72 During September and November 2006, when the complainant was 17 years old, the following acts occurred in the course of one episode. The appellant penetrated the complainant's vagina with his finger (count 18), put his penis in her mouth (count 19), engaged in cunnilingus (count 20) and then had sexual intercourse until ejaculation (count 21).
73 During October and November 2006 the appellant had sexual intercourse with the complainant on a quad-bike in a paddock (count 22). On another occasion he engaged in cunnilingus (count 23) and in sexual intercourse (count 24).
74 During November and December 2006 the appellant penetrated the complainant's anus with his penis in a forceful and unannounced encounter until he ejaculated (count 25). This was very painful for the complainant.
75 As noted, the appellant was acquitted on counts 26 and 27, and a directed acquittal was entered on count 28. Count 26 alleged that the appellant had sexual intercourse with the complainant in a bedroom. Count 27 alleged that the appellant had taken the complainant to a shearing shed and had sexual intercourse with her. The prosecution alleged that the complainant had told the appellant that she did not want to have sex because she had her period but that the appellant had ignored this and forcibly removed her tampon and slid it down a metal fence post in the shed before proceeding to have sex with her. The trial judge found that the verdict of acquittal on counts 26 and 27 was the result of the jury
(Page 27)
- not having been satisfied that the complainant was legally a child at the time of the offences, rather than their not being satisfied that the events had occurred as described. He noted that these charges did not allege sexual penetration without consent as alternative counts.
76 The last offence took place in December 2007, roughly six months after the complainant's 18th birthday. The appellant forced the complainant to have sexual intercourse against her will on the floor of a lounge room. This was the only charge of sexual penetration without consent.
The appellant's antecedents
77 The sentencing judge made the following findings regarding the appellant's character and antecedents.
78 The appellant had no relationship with his biological father and was raised in circumstances of deprivation and emotional abuse. He was troubled at school and left after year 10. He was convicted of a number of serious offences as a juvenile and began abusing cannabis and other drugs from the age of 15. This abuse has continued ever since and although it ceased throughout the period of offending against the complainant, it recommenced after his arrest.
79 His employment history is excellent and he has an excellent work ethic.
80 Prior to meeting the complainant's mother, he had never been in a successful relationship. As a teenager he was involved in an abusive and age inappropriate sexual relationship which produced a child. After this teenage relationship he was involved in another relationship which also produced a child. He had little or no involvement in the upbringing of these two children, and he was not aware of the former child's existence until shortly before he commenced the offending conduct against the complainant.
81 The psychiatric evidence before the court established that the appellant suffered from two chronic psychological disorders, being delusional disorder or paranoia and polysubstance abuse. It also established that the appellant had a predisposition to narcissistic and anti-social behaviour and a hypersexual sex drive. His dysfunctional upbringing contributed to his lack of empathy for the complainant and although the sentencing judge found that these disorders and personality dispositions did have some causative effect on the offending in counts 4,
(Page 28)
6, 7 and 8, he determined that that effect was not mitigatory in accordance with the principles in Gok v The Queen [2010] WASCA 185 [54] - [61] (Mazza J). At all times the appellant understood that what he was doing was wrong and illegal yet he did it nevertheless.
82 The sentencing judge found that unless his disorders and personality characteristics could be treated the appellant would continue to be at significant and long-term risk of reoffending.
The sentences imposed
83 The sentences imposed by the trial judge, along with the relevant maximum penalty for each offence, are set out in the following table:
Count | Offence | Maximum Penalty | Term Imposed |
1 |
|
|
|
2 |
|
|
|
3 |
|
|
|
4 |
|
|
|
5 |
|
|
|
6 |
|
|
|
7 8 |
Sexual penetration of de facto child under 16 years: s 329(2) Criminal |
20 years |
7 years |
| |||
9 |
|
|
|
10 |
|
|
|
11 |
|
|
|
12 |
|
|
|
13 |
|
|
|
14 |
|
|
|
15 |
|
|
|
16 |
|
|
|
18 |
|
|
|
19 |
|
|
|
20 |
|
|
|
21 |
|
|
|
22 |
|
|
|
23 24 25 |
Sexual penetration of de facto child: s 329(2) Criminal Code Sexual penetration of de facto child: s 329(2) Criminal Code |
10 years 10 years |
4 years concurrent 4 years concurrent |
(Page 30)
29 |
s 325 Criminal Code |
|
|
84 In summary, the sentence of 5 years imprisonment imposed on count 29 was made cumulative upon the sentence of 7 years imprisonment imposed in respect of count 8, and all other sentences were made concurrent. Accordingly, the total effective sentence was 12 years imprisonment with eligibility for parole.
The grounds of appeal
85 There is only one ground of appeal, which is in the following terms:
The Learned Sentencing Judge erred in the application of the totality principle, which resulted in a sentence which was manifestly excessive for the offending in question.
PARTICULARS
a. The appellant was of previous good character.
b. The appellant did not have any relevant prior convictions.
c. There was no significant aggravating features of the offending in question.
d. Some offences occurred after the child obtained legal age had there not been an interfamilial situation.
e. The sentence imposed was excessive having regard to other cases of a similar nature recognized by this Court in recent years.
- A number of the particulars may be shortly dealt with.
86 Lack of prior conviction and previous good character is a not infrequent characteristic of cases of this kind. However, because of the serious abuse of trust inherent in cases in this category, and the abhorrence with which the community rightly regards cases of this kind, reflected by the maximum penalties imposed by the legislature, the dominant sentencing considerations in cases of this kind are personal and general deterrence, and the need to robustly denounce offending conduct of this kind and to provide support for prospective and past victims of serious abuses of trust. As a consequence, mitigatory personal circumstances and previous good character are of reduced relevance.
87 The assertion that there were no significant aggravating features of the offending in question is entirely contrary to the unchallenged findings
(Page 31)
of fact made by the trial judge for the purposes of sentence. Those findings are replete with aggravating features of the offending conduct of the appellant, who subjected a vulnerable child in his care to almost every imaginable form of sexual conduct, against her will, over a lengthy period, depriving her of her innocence and of a normal childhood, with a predictable adverse effect upon her life and future prospects.
88 The fact that some of the offences occurred after the complainant attained the age of 16 years is irrelevant, given the unchallenged finding by the trial judge to the effect that all offending misconduct took place against the will of the complainant.
89 The only remaining aspect of the appeal against sentence is the assertion that the total effective sentence imposed, of 12 years, was excessive having regard to other cases of a similar nature in recent years. However, that assertion is contrary to authority.
90 It must first be acknowledged that there is no specific tariff for cases involving sexual offences against children, because of the almost infinite variety of circumstances in which such offences can be committed. However, some cases have a certain similarity and, regrettably, this is one such case. In VIM v The State of Western Australia [2005] WASCA 233; (2005) 158 A Crim R 243 this court reviewed a number of sentences imposed between 1999 and 2005 in cases involving multiple sexual offences against children where the offender had pleaded guilty. The sentences in those cases ranged from suspended terms of imprisonment up to imprisonment for 20 years. Some of the sentences were imposed prior to the commencement of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA), and some after. After reviewing the cases, the court identified a sentencing range (post-transitional) between 6 years 8 months and 12 years 8 months for the most common cases, corresponding to a pre-transitional range of 10 - 19 years.
91 It is significant that this range was identified in respect of offenders who had pleaded guilty. Of course this appellant is not entitled to the benefit of any discount as a result of such a plea. Although in VIM the court was unable to identify a sufficient number of cases in which sentences were imposed after a plea of not guilty to draw any realistic conclusions, as the court noted, it would be reasonable to proceed upon the assumption that a discount of somewhere between 20% and one-third would be given in the case of a plea of guilty. Adopting a midpoint of, say, a discount of 25% for a plea of guilty would mean that the range to
(Page 32)
- which the court referred in VIM should be escalated by one-third to apply to cases in which the offender did not plead guilty. An assumption (in favour of the appellant) to the effect that cases reviewed in VIM had received a discount of 20% for a guilty plea would result in the range being escalated by about 25% to apply to cases of conviction after trial.
92 On either basis, the sentence imposed upon the appellant in this case was well within the range identified in VIM.
93 In The State of Western Australia v Prince [2011] WASCA 22 [20], McLure P undertook a review of sentences imposed in comparable cases decided after the decision in VIM. The range identified in a relatively small sample of cases involving pleas of not guilty was between 6 years (FGC, where the appellant was an old man at the time of trial and had committed the offences many years earlier), and 14 years and 6 months. Three of the six cases in the sample reviewed by her Honour involved sentences of imprisonment of 12 years or more.
94 As it is apparent that the sentence imposed upon the appellant was well within the range of sentences customarily imposed in cases of this kind, little purpose would be served by comparing the particular circumstances of this case, with the particular circumstances of other specific cases. It is sufficient for present purposes to note that the various aggravating features of the offences committed by the appellant found and identified by the trial judge sustain the conclusion that the total effective sentence properly imposed in this case should have been towards the upper end of the range. The proposition advanced in argument to the effect that, in cases involving a single complainant, the upper end of the range is in the vicinity of 10 years imprisonment cannot be sustained by reference to the authorities.
95 The sentence imposed by the trial judge was well within the range available in the sound exercise of the sentencing discretion imposed upon him. There is no basis upon which that sentence can or should be altered by this court. The appeal against sentence should be dismissed.
96 PULLIN JA: I agree with Martin CJ.
97 MAZZA JA: I agree with Martin CJ.
28
27
4