NN v The State of Western Australia
[2018] WASCA 92
•12 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NN -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 92
CORAM: MARTIN CJ
MITCHELL JA
PRITCHARD J
HEARD: 10 MAY 2018
DELIVERED : 12 JUNE 2018
FILE NO/S: CACR 126 of 2017
CACR 127 of 2017
BETWEEN: NN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 1215 of 2016
Catchwords:
Criminal Law - Appeal against conviction - Indecent dealing with lineal relative under the age of 16 years - Sexual penetration of lineal relative under the age of 16 years - Offending involved multiple victims - Application of principle in Browne v Dunn - Whether trial judge erred in allowing State to re-open its case - Where evidence of parents' convictions for sexual offences against same children was highly prejudicial and State ran its case on the basis that that evidence would not be admitted - Where appellant and counsel led evidence which created a misleading impression of the prevailing household circumstances at the time of the offending
Criminal Law - Appeal against sentence - Indecent dealing with lineal relative under the age of 16 years - Sexual penetration of lineal relative under the age of 16 years - Offending involved multiple victims - Where offender is a child at time of committing some of the offences - Operation of Young Offenders Act 1994 (WA) - Whether trial judge correctly applied the principles contained in the Young Offenders Act 1994 (WA) when sentencing the adult appellant for offences committed when he was under the age of 18 years - Whether trial judge erred in imposing a total effective sentence that infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 329
Young Offenders Act 1994 (WA), s 46, s 50B
Result:
Appeals dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr M D Cuomo |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Legal Aid - Criminal Law Division |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in decision(s):
Brown v The Queen [1980] Tas R 61
Browne v Dunn (1893) 6 R 67 (HL)
FWB v The State of Western Australia [2016] WASCA 118
Giglia v The State of Western Australia [2010] WASCA 9
JJR v The State of Western Australia [2018] WASCA 51
Manyam v The State of Western Australia [2010] WASCA 107
R v Popescu (1989) 39 A Crim R 137
Salkilld v The State of Western Australia [2017] WASCA 168
WRN v The State of Western Australia [2017] WASCA 145
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted after trial of the following counts of sexual offences against his sisters, L and K, who were both under the age of 16 at the time, for which he was sentenced to a total effective sentence of 5 years' immediate imprisonment.
Count
Date of offence
Code section
Offence
Sentence
Cumulative/Concurrent
1
Unknown b/n 27/10/98 - 31/12/99
329(5)
Procured L, a child who he then knew to be a lineal relative, to do an indecent act, namely touch her vagina
6 months
Concurrent
2
Unknown b/n 31/12/00 and 28/10/01
329(2)
Sexually penetrated L, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
18 months
Concurrent
3
Unknown b/n 1/9/01 and 1/1/02
329(2)
Sexually penetrated L, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
18 Months
Concurrent
4
Unknown b/n 31/12/03 and 27/10/04
329(2)
Sexually penetrated L, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
3 years
Head Sentence
5
Unknown b/n 31/12/03 and 27/10/04
329(2)
Sexually penetrated L, a child who he then knew to be his lineal relative, by penetrating her vagina with his penis
2 years
Cumulative
6
Unknown b/n 22/6/97 and 22/12/99
329(4)
Indecently dealt with K, a child who he then knew to be his lineal relative, by rubbing his penis on her vagina
6 months
concurrent
7
Unknown b/n 22/6/01 and 22/12/03
329(4)
Indecently dealt with K, a child who he then knew to be his lineal relative, by rubbing his penis on her vagina
15 months
concurrent
Total Effective Sentence
5 years
The appellant was made eligible for parole and the sentences backdated to commence on 16 March 2017 to take account of time spent in custody on remand.
The offences charged in counts 1 - 3 and 6 - 7 were committed when the appellant was a juvenile aged between 14 and 17 years. The appellant was 32 years old at the time of sentence. Counts 1 and 6 were alleged to have occurred while the family lived on a farm which it is convenient to refer to as the first farm. The other counts were alleged to have occurred while the family lived on a different farm which it is convenient to refer to as the second farm.
The appellant now appeals against his convictions and sentences. His applications for leave to appeal have been referred to the hearing of the appeals.
The sole ground of appeal against conviction is that there was an error of law and/or miscarriage of justice when the trial judge allowed the State to split its case and adduce evidence in rebuttal after the close of its case.
Ground 1 of the appeal against sentence contends in effect that the trial judge made an express error in the application of the Young Offenders Act 1994 (WA) to the sentencing of the appellant in respect of counts 1 - 3 and 6 - 7. Ground 2 of the appeal against sentence contends that the total effective sentence of 5 years' imprisonment infringes the first limb of the totality principle.
For the following reasons none of these grounds are established, and the appeals must be dismissed.
Appeal against conviction
The State's Case
The prosecutor outlined the State's case to the following effect in his opening address to the jury.[1]
[1] Trial ts 67 - 71.
The appellant was the oldest of seven children, three girls and four boys. L was about 4 years younger than the appellant and K was about 10 years younger than the appellant. The father was a disciplinarian who would punish the children using belts and sticks, at times causing injuries, in particular if they stole something or did not do their allocated jobs.
Count 1 occurred when the appellant and L were washing dishes after a barbecue dinner at the first farm. L was about 10 years old. The appellant pulled down L's shorts and underwear and told her to play with her vagina or he would tell their father that L had stolen some lollies. L did so. This stopped when someone came into the house.
Count 2 occurred at the second farm when the appellant was 16 years old and L was about 12 years old. When L dropped laundry off at the appellant's room, the appellant locked the door and told L to take her clothes off or he would tell their father that L had stolen things. The appellant took off his clothes and L took off her pants and underwear. The appellant then sexually penetrated L by introducing his penis into her vagina. This continued for several minutes until their father came to the door and asked why it was locked. The appellant gave an excuse that his younger brother had been trying to get into the room. The appellant got off of L, who got dressed. Because of the appellant's threats, L did not tell anyone.
At this point, sexual intercourse between the appellant and L, under the appellant's threat of telling their father that L had stolen something, became a regular occurrence.
Count 3 occurred at the second farm when L was about 13 years old and her periods had started. The appellant barged into the toilet L was in and pulled his trousers down. He had a plastic freezer bag in his hand. L was scared because she was having her period and was concerned that she could become pregnant. The appellant told L to turn around and face the wall in the toilet cubicle. He then sexually penetrated L by introducing his penis into her vagina using the freezer bag and then ejaculated into the freezer bag. He then left with the bag in his pocket.
After this, the appellant continued to have sexual intercourse with L in similar circumstances, but began to use condoms. This conduct continued until the appellant moved out of the house when he was about 19 years of age.
Count 4 occurred at the second farm on a weekend when the appellant had returned from Perth to see the family. The appellant barged into the toilet and put his hands over L's mouth. He was rough and much stronger than L. The appellant pulled down her pants and underwear, took off his own pants and underwear, sat on the toilet and sexually penetrated L's vagina by pulling her on top of his penis. The appellant was not wearing a condom. Sexual intercourse took place and the appellant ejaculated inside of L. The appellant departed, leaving L in tears in the toilet. Again, L told no one because of the appellant's threats.
Count 5 occurred at the second farm on another weekend when the appellant returned from Perth. Because of the relatively small house and the need for space, his bed was claimed by someone else. When the appellant returned, he would sleep on a foldout couch. On this occasion, the appellant and L were alone in the house. As L was making something with beads in her bedroom, the appellant called out her name and she went to see what he wanted. He showed her money and asked if she wanted some. She said 'No' and then she recalled being on her hands and knees. The appellant was behind L and sexually penetrated her by introducing his penis into her vagina. The appellant did not wear a condom and ejaculated onto L's back. Afterwards, the appellant gave L a towel to wipe herself. That was the last time the appellant had sexual intercourse with L. The appellant offered L money afterwards for sex, which she refused.
Count 6 concerned an offence against K, who was the appellant's younger sister, which occurred at the first farm. K recalls being about 4 years of age. At that stage, the appellant was living in a caravan or a converted bus that was parked next to the house. There was a family barbecue. At some stage K left the barbecue and went to the appellant's caravan. She entered the caravan and recalls a jewellery box which had trinkets in it. The appellant said that if he let her have something, she had to let him do something to her. K chose a seahorse trinket, which she kept for a considerable period of time. K could not recall what she was wearing, but her lower clothes were pulled down. The appellant was positioned behind her in some way and put his erect penis in-between her legs and moved backwards and forwards for some time. K recalls that L came in and took her away.
Count 7 occurred at the second farm when K was about 7 years old and the appellant was sharing a bedroom with two of his brothers. K recalls going to the appellant's room and the door being shut, her pants being pulled down and feeling the appellant's erect penis rubbing against her vagina. K recalls talking to the appellant and asking him if he thought she was pretty. After a time he pulled his penis away and ejaculated. He then used a hanky to wipe up his semen and asked K to put it in the laundry (which was something that stuck in K's mind).
The prosecutor noted that photographs were taken of the exterior of the house at the first farm (to which police were not allowed access) and the inside and outside of the house at the second farm (which had been derelict for some time). He also indicated that an edited video record of interview would be played, in which the appellant denied that anything of the nature charged happened between him and his sisters at all.
The appellant's case
The appellant's trial counsel (who did not appear on this appeal) chose to make an opening statement to the jury. He conveyed the appellant's contention that the matters alleged by the State did not happen. Relevantly for present purposes, the appellant's trial counsel made the following submission:[2]
But when you're assessing all the evidence, I'd ask you not to do it in a vacuum but with your life experiences. Because you'll hear evidence that, for instance, in the [house at the second farm] there are at least two adults and seven children in that house, living in what you might consider to be a very small house.
[2] Trial ts 102.
After referring to the allegations that the appellant would 'barge through' the toilet door and do things to L, and the allegations in count 2, the appellant's trial counsel said:[3]
So firstly, the context. In a family home where people are around and these allegations are being made. So in a locked bedroom door, [the appellant] committed count 2, that's what the State are saying. And in a toilet in that [house at the second farm], he would just barge through and do sexual things with his sister, [L].
That's what the State are saying, barge through. Well, remember your life experiences.
The course of evidence
[3] Trial ts 102.
It is not necessary to set out the detail of the State's evidence for the purpose of resolving the ground of appeal against conviction. For present purposes it may be noted that L and K gave evidence generally in accordance with the prosecutor's opening statement. Evidence was tendered as to the layout of the house on the second farm which showed it to be a small house of fibro construction. In cross‑examination, L confirmed that the house at the second farm was a small house occupied by two adults and seven children.[4] However, it was not put to either L or K in cross‑examination that the events they described could not have happened because other members of the family would have heard and intervened.
[4] Trial ts 154 – 155.
The appellant elected to give evidence, in which he denied that any of the sexual offending occurred. During the course of the appellant's evidence in chief, the following exchange occurred between the appellant and the appellant's trial counsel:[5]
The next count is one - is at [the house at the second farm]. And that's an allegation that you had sex with [L] in the toilet. She and also, can I say, [L] said after that laundry incident, bringing the laundry in, an allegation that sex happened on a daily basis. Well, what do you - what do you want to tell the jury about that, that at [the house at the second farm] while living there with your mum and your dad and all your siblings, that on a daily basis you're having sex with [L] in the home?---Yeah. That - that's crazy, especially with mum, dad and the rest of the family in a small fibro house. Even if it was happening, someone would have heard something.
Well, did you - did - from that moment onwards where there's an allegation of sex after [L] bringing laundry into you, you had sex with her on a daily basis until you left home?---No. That did not happen.
[5] Trial ts 385.
Before cross-examining the appellant, the prosecutor sought and obtained leave from the trial judge to ask the appellant about his knowledge of the convictions of both of his parents in respect of sexual offences against L and K. As there is no challenge to that ruling in this appeal, it is sufficient to note that the appellant was asked about whether he had observed sexual offending by his father and mother against L and K. He denied being aware of any such abuse.[6] He accepted that his mother and father were both serving prison sentences but denied being aware that they were serving sentences for sexual offending against L and K.[7]
The trial judge's ruling
[6] Trial ts 435 - 436, 439 - 441.
[7] Trial ts 443 - 445.
After the conclusion of the appellant's case, the State was given leave to reopen its case to adduce evidence of the convictions of the father and mother of sexual offences against L and K.
In his reasons for that ruling the trial judge found that the conduct of both parents which was the subject of those convictions had been known by both counsel throughout the trial. His Honour noted that during the State's case, including the examination and cross-examination of the complainants, great care was taken to ensure that such matters were not led and did not arise in this case 'for what may have been said to be obvious reasons'.[8]
[8] Trial ts 574.
The trial judge referred to the evidence set out at [22] above, and continued his ruling in the following terms:[9]
[9] Trial ts 575 – 577.
The inference reasonably arising from that evidence is that this was a normal household, that had the conduct of the accused as disclosed by the complainant occurred, clearly there were others within that house who would hear, see and intervene and provide the necessary protection.
Such evidence was led when it was known to be false and wholly contrary to the conclusive evidence established by the conviction of [their father] and upon the plea of guilty of [their mother].
In my opinion, the jury in this case might reasonably infer that the complainant's evidence is false and should be rejected as the offences are said to have taken in a place in circumstances where the presence of her father and mother and other siblings makes such conduct wholly improbable.
That is to say, the parents would have intervened if the offences alleged had in fact occurred. The State now seeks my leave to readdress this aspect of the evidence. It's the State's case that in putting this before the jury, the accused and his counsel knowingly introduced a fact, that when giving evidence on 13 March 2017 that they then knew to be false.
That is to say, contrary to the inference from the accused's evidence and the inference reasonably open on the accused's evidence, this was not a normal household and that the normal protection and safeguards afforded by a parent over a child did not in fact exist in the circumstances in this case.
I'm satisfied that this evidence was knowingly led by counsel for the accused as a conscious forensic decision and with the intention to create a factual picture as to the circumstances of the household that would bear upon the improbability of the complainant's evidence and thereby knowingly mislead the jury.
It was a deliberate forensic decision put before the jury on matters that were then known to be false. I do not accept the submission from Mr Monisse, counsel for the accused, that at the time of giving his evidence, the accused believed his father's convictions related to various assault matters and his mother's conviction related to Centrelink fraud.
I reject that submission not only as implausible but reckless as to its truthfulness and its accuracy. I have given consideration as to whether the conduct of the defence in leading this evidence was such as to require me to discharge the jury.
However, I am satisfied that it is not required. This was led as part of the defence case as a conscious forensic decision and as such, clearly made in the knowledge that it was open to the State to reopen.
I'm satisfied that the false impression that may have been created by counsel for the accused's deliberate decision to introduce the evidence can be cured by permitting the State to reopen its case to lead the evidence that will present an accurate picture as to the prevailing domestic circumstances in respect of each of the complainants at the relevant time.
Naturally, such evidence would need to be presented in a balanced, measured way to ensure that any prejudice to the accused may be minimised. Such decision has to be balanced against the fact that this is, however, a matter that arises from a deliberate, forensic decision by the accused and his counsel.
I pause to observe that on each occasion throughout the course of the trial, where applications have been made to me by the State - by the accused' counsel to either discharge the jury, permanent stays, or indeed, for me to recuse myself, they have been made on the specific instructions from his client and after consultation with his client.
Mr Monisse acts directly on instructions from his client in relation to each of these matters. I'm further satisfied that - and this evidence being received, I will direct the jury as to the very limited purpose to which the evidence can be used by them and of the importance of following my directions and to focus on the matters in issue.
I'm satisfied that in - that such circumstances, the evidence can be received and limited to that very - well, limited to that issue created by the admission of this evidence and that the accused can still attain a fair trial in this matter.
Accordingly, I grant leave to the State to reopen its case and adduce the evidence in the manner indicated.
The evidence led in rebuttal
The State then called Sgt Jane Hannan, who gave evidence to the following effect in relation to the convictions of the father in relation to L.[10]
[10] Trial ts 580-582.
(1)Between 3 December 1993 and 22 December 1994 at a Perth suburb, L saw her father having sex with her mother. L was told to stay and watch. When her father and mother stopped having sex, her father said 'It's now your turn' but her mother said, 'No.' L was 5 or 6 years' old at that stage.
(2)Between 22 December 1994 and 30 April 1998 at a Perth suburb, L lay on her father's bed and her father rubbed his penis between her legs against her vagina.
(3)Between 1 January 1999 and 28 February 2001 at the first farm, her father rubbed L's vagina on top of his penis.
(4)Between 1 February 2001 and 31 December 2002 at the second farm, L was in a shed where she masturbated her father's penis. On another occasion during the same period L performed oral sex on her father at the second farm. L was in year 7 of school at the time.
(5)Between 31 July 2004 and 5 September 2004 at the second farm, while her mother was away in New Zealand, L slept naked in her parent's bed. Her father sexually penetrated L by introducing his penis into her vagina. L was 15 years' old.
(6)Between 28 October 2004 and 20 March 2006, L's father touched her vagina with his fingers, and her breasts and said he 'really badly wanted to fuck her properly'.
(7)Between 20 March 2006 and 28 April 2006 at the second farm, her father was in his bed and L went in. L's father sexually penetrated L by introducing his penis into her vagina.
(8)Between 20 March 2006 and 28 October 2006, L was in bed with her parents and her father wanted sex with her mother. Her mother refused. Her father then sexually penetrated L by introducing his penis into her vagina.
(9)Between 28 October 2004 and 28 October 2006 at the second farm, L was present when her parents were having sex and L put her hand on her father's testicles.
(10)Between 28 October 2004 and 28 October 2006 at the second farm, L was present when her mother was performing oral sex on her father. L put her father's testicles in her mouth.
(11)On 1 November 2006 at the second farm, L got ready for her school graduation. Her father was angry with her and she ran out the door. Her father ran after her and then hit her on the jaw causing her to hit the top of her head. L attended the graduation. L was taken to hospital by her teacher. L had bruising on her arms, her jaw and swelling to the top of her head. L was 18 years' old.
Sgt Hannan also gave the following evidence about a conviction of the father in relation to K. On an occasion between 22 December 2002 and 22 December 2004 at the second farm, K slept in the lounge room. During the night her father touched her vagina with his finger. K was 8 or 9 years old.[11]
[11] Trial ts 582.
Sgt Hannan gave the following evidence as to the convictions of the mother in relation to L, for which she was sentenced on 16 January 2015:[12]
(1)Between 31 January 2001 and 2 November 2006 at the second farm, L's mother was performing oral sex on L's father. L put her father's testicles in her mouth.
(2)Between 31 January 2001 and 2 November 2006 at the second farm, L's mother was performing oral sex on L's father in the parent's bed. L touched her father's testicles.
(3)Between 31 January 2001 and 2 November 2006 at the second farm, L's mother was having sexual intercourse with L's father. L touched her father's testicles.
Trial judge's directions about the impugned evidence
[12] Trial ts 582 - 583.
Both before and after Sgt Hannan gave her evidence in rebuttal, the trial judge directed the jury that the evidence could only be used for the purpose of considering the domestic circumstances that prevailed in the houses at the relevant time. The substance of the direction was repeated in the trial judge's charge to the jury. The charge to the jury was in the following terms:[13]
[13] Trial ts 651 – 652.
I now wish to give you some special directions in relation to the way in which you approach this case. And I'll start by going back to the direction I gave yesterday, when you heard the evidence from Sergeant Hannan, in relation to the conduct of the parents of the complainants and the accused. I remind you that you are to consider the evidence in relation to the charges against this accused. And that you cannot find the accused guilty unless you are satisfied beyond reasonable doubt on that evidence.
The evidence in relation to conduct of the accused's father and mother, and their convictions for such offences, is only before you for a limited purpose as directed by me, namely, the domestic circumstances that prevailed in the house at the relevant time. That is a factor you might consider when considering the accused and the complainants' evidence as to whether the presence of the parents and other siblings would make the complainants' evidence as to what the accused is said to have done and about the ongoing sexual activity implausible.
I remind you that this evidence is given before you for that limited purpose and must only be considered by you in that context. It can only be considered in relation to the likely presence of the accused and complainants' parents and other siblings as a relevant factor when determining the truthfulness, accuracy and reliability of the complainants' evidence concerning the conduct of the accused that is alleged.
You recall the accused said that it was just crazy. It was implausible that mum and dad and the other siblings in the house, in the small fibro house, it wouldn't have been possible. But you have before you evidence when considering that point as to whether the complainants' evidence in relation to that is plausible. You have before you that evidence in relation to the conduct that extended for a period from as far back as 1993 through to 2006.
It further included conduct of the nature of not only sexual conduct, in the most serious and degrading way, but also aspects of violence with the assault occasioning harm to her that resulted in hospitalisation on the night of her graduation.
The question for you, however, is whether you're satisfied beyond reasonable doubt that the accused did the acts that are alleged in the indictment by his sisters. And in doing that, you consider the whole of the evidence. And whilst the facts are your province, I remind you of the importance of the directions I give you on that as [to] law. And it's most important in relation to the evidence that you received yesterday on this point, that you follow my direction as to law as to the limited extent to which that evidence is relevant in this case.
As I've said, it goes simply to that issue as to whether the presence of the parents and the other siblings is a relevant factor when determining the truthfulness, accuracy and reliability of the complainant's evidence concerning what she says about the conduct of the accused happening as it did and in the circumstances as it did.
The issue in this trial is whether you're satisfied beyond reasonable doubt the accused committed those acts.
The appellant's contentions
The appellant accepts that the trial proceeded on the basis that the trial judge and trial counsel agreed that the evidence of the parents' past conduct should not be led as it would result in an unfair trial.[14] The appellant also accepts that the prejudicial nature of that evidence was the reason that the appellant and his father had separate trials.[15] The appellant recognises that the evidence of L and K deliberately 'stayed away from all evidence as to the extent of their sustained abuse at the hands of their parents'.[16] It was common ground between trial counsel that the evidence was relevant, but should not be admitted because its prejudicial effect outweighed its probative value.[17]
[14] Appellant's Submissions par 9; appeal ts 3.
[15] Appellant's Submissions par 13, 27.
[16] Appellant's Submissions, par 14.
[17] Appeal ts 3.
However, the appellant submits that evidence of the parents' conduct would have been admissible as part of the State's case against the appellant, despite the fact that both the trial judge and trial counsel agreed that it was highly prejudicial and would impact on the fair trial of the appellant. The appellant refers to the opening by the appellant's trial counsel set out at [19] - [20] above, which indicated that he would rely on the fact that it was a small house and people were about. The appellant contends that evidence of 'the conduct of others in the household was admissible by reason of its tendency to make the commission of the alleged offences more probable'.[18] It was submitted that the appellant's opening put the State on notice as to the evidence that was to be adduced by the appellant, and that if the State wished to adduce evidence relating to the conduct of his parents it should have done so as part of the prosecution case.[19]
[18] Appellant's Submissions, par 15, 24.
[19] Appeal ts 2, 4.
The appellant submits that the parents' conduct could have been put to the appellant in cross-examination,[20] and that there were no special or exceptional circumstances to justify allowing the State to re-open its case and lead evidence which could have been adduced as part of the State's case.[21]
General principles
[20] Appellant's Submissions, par 18 - 22.
[21] Appellant's Submissions, par 23 - 27.
The general principles governing the exercise of the trial judge's discretion to permit the State to re-open its case to call rebuttal evidence are well established, and were not in dispute in this case.[22] They were relevantly summarised by Pullin JA, with whom Jenkins J agreed, in Manyam v State of Western Australia in the following terms:[23]
(a)There is a wide discretion in the trial judge to permit the calling of rebuttal evidence:
(b)However, in the exercise of that discretion, the trial judge must bear in mind the rule that the prosecution must have offered 'all its proof' of 'its case' (the case is the 'prosecution case in chief') before an accused is called upon to make his or her defence:
(c)The rule is a rule of practice and procedure, not of substantive law: The rule is a reflection of the underlying principle of fairness which must be observed in the accusatorial and adversarial procedures involved in a criminal trial:
(d)The rule does not just apply to prevent a deliberate attempt by the prosecution to split its case, but also to prevent the prosecution from calling evidence in proof of the guilt of the accused which ought reasonably to have been foreseen as necessary to support the prosecution case:
...
(f)It has been said that the circumstances in which the discretion may be exercised by a trial judge to permit evidence to be led in rebuttal are likely to be exceptional: There can be departures from the general rule and there is no rigid formula which can define the exceptional cases where this will be permitted because of the infinite variety of difficulties that may arise in a criminal trial: (citations omitted)
[22] Appeal ts 2.
[23] Manyam v The State of Western Australia [2010] WASCA 107 [19], Jenkins J concurring at [191].
Although Buss JA was in dissent in that case, his Honour's statement of the general principles was not materially different.[24]
Disposition
[24] Manyam [98] – [106].
It was common ground in this appeal that the State's case proceeded on the basis that the evidence of the parents' past conduct should not be led due to the prejudice that evidence would pose to the appellant.[25]
[25] Appellant's Submissions par 9, 13; Respondent's Submissions, par 59; appeal ts 3.
Trial counsel took the view that, in the absence of any evidence to the effect that the events could not have occurred in the manner described by the complainants, because their parents would have heard and intervened, the prejudicial effect of evidence of the parents' convictions would outweigh its probative value. That was a reasonable view to take.
We agree with the trial judge's view that the clear inference reasonably arising from the appellant's evidence quoted at [22] above is that, had the appellant offended in the manner alleged by L, there were others within that house who would hear, see, intervene, and provide the necessary protection. On appeal, the appellant accepts that the evidence was knowingly led by counsel for the appellant as a conscious forensic decision with the intention of creating a factual picture as to the circumstances of the household that would bear upon the improbability of the complainants' evidence.[26]
[26] Appeal ts 3.
The grounds of appeal do not challenge the trial judge's findings of fact that:
(1)The evidence was knowingly led by the appellant's trial counsel with the intention of knowingly misleading the jury.[27]
(2)The forensic decision was made in the knowledge that it would be open to the State to reopen.
[27] While the appellant's appeal counsel did not accept this proposition, he acknowledged that the grounds of appeal did not challenge the finding at appeal ts 3 - 4.
The circumstances found by the trial judge involved the appellant and his counsel, knowing of the parents' convictions and of the State's decision not to lead evidence of those convictions to avoid prejudice to the appellant, making a decision to lead evidence which created a misleading impression. Leading that evidence affected the balance between the probative value and prejudicial effect of the parents' convictions. In those circumstances – which may fairly be described as unusual and exceptional – it was open to the trial judge to exercise his discretion to allow the State to reopen its case. That is so even if the evidence might have been admitted as part of the State's case if the court took a different view from the prosecutor as to whether the prejudicial effect of the evidence outweighed its probative value.
Although not expressly referred to by the trial judge, it is also relevant that the appellant's counsel did not put to the complainants in cross-examination that the events they described could not have occurred because other members of the family would have seen or heard something and consequently intervened. The rule in Browne v Dunn[28] required the appellant's counsel to do so if he intended to lead evidence from the appellant that others would have heard and intervened if the events described by the complainants had occurred. Had counsel complied with that obligation, then the prosecutor would have been in a position to lead evidence of the parents' convictions as part of the State's case.
[28] Browne v Dunn (1893) 6 R 67 (HL).
The fact that the matters were not put to the complainants meant that it was reasonable for the State to apprehend that the evidence would not be adduced as part of the appellant's case.[29] The prosecutor could also have reasonably taken the view that evidence of the parents' convictions could only properly be led if the appellant was going to give or adduce evidence to the effect that, if the conduct described by the complainants' occurred, someone would have seen or heard and intervened. It was the leading of evidence to that effect, rather than the making of a submission, which the prosecutor evidently regarded as the 'trigger' which altered the balance between the prejudicial effect and probative value of the evidence. It was the leading of that evidence of a matter that had not been put to the complainants which prompted the prosecutor's application to reopen the State's case to lead rebuttal evidence.
[29] Compare Brown v The Queen [1980] Tas R 61, where there was no substantive breach of the rule in Browne v Dunn and the trial judge was held to have erred in permitting the prosecution to adduce evidence in rebuttal to evidence it ought to have anticipated when conducting its case.
A remedy for a breach of the rule in Browne v Dunn, which was appropriate in this case, was to allow the State to reopen its case to call evidence to rebut that adduced by the appellant in breach of the rule.[30]
[30] For an example of a case in which leave to call rebuttal evidence was granted in a criminal case following a breach of the rule in Browne v Dunn, see R v Popescu (1989) 39 A Crim R 137, 138 - 141.
The appellant submits that the matters which were the subject of rebuttal evidence could have been put to the appellant in cross-examination. However, that is what occurred before the trial judge granted leave for the State to reopen its case. In the face of the appellant's denials of knowledge of the parents' offences or convictions, the only means available to the State to prove those matters was by reopening its case.
It is also significant that the grant of leave did not operate unfairly to the appellant. As noted above, the finding that the appellant and his counsel knew of the parents' convictions at all material times is not challenged by the grounds of appeal. The evidence of the convictions was presented to the jury in neutral terms, which were formulated in consultation with the appellant's trial counsel and about which no complaint is made on the appeal. The limited purpose for which the rebuttal evidence could be used was repeatedly explained by the trial judge. The appellant did not seek to challenge the rebuttal evidence by cross-examination. Counsel for the appellant was unable to point to any specific practical unfairness to the appellant in that evidence being adduced in rebuttal rather than as part of the State's case.[31]
[31] Appeal ts 6.
In the unusual circumstances of this case, the trial judge was correct to exercise his discretion to allow the State to call evidence to rebut the evidence of the appellant, in the form which was presented by the State.
While we would grant leave to appeal on the sole ground of appeal against conviction, the appeal must be dismissed.
Appeal against sentence
Circumstances of offending
The trial judge made the following unchallenged findings as to the circumstances of the appellant's offending. Like the trial judge, we will deal with the appellant's offending in chronological order.[32]
Count 1
[32] Trial ts 709 ‑ 711.
The appellant enjoyed a special relationship with his father, who was a harsh disciplinarian and a brutal man.
At the first farm, the appellant and L were upstairs doing the dishes. L was 10 years old at the time. The appellant was 14 years old. The appellant told L that he wanted to see her touch herself. The appellant threatened to tell their father that L had stolen some lollies if she refused to do so. It was in the face of that threat that she then removed her underwear and placed her hand on her vagina and rubbed it in the appellant's presence. This stopped when someone entered the house downstairs. The appellant told L not to tell anyone what had happened.
Count 6
This offence occurred when the appellant was approximately 14 years of age and involved K, who was approximately 4 years old at the time. At this time, the appellant lived in a converted bus that was parked alongside the family residence at the first farm.
The appellant enjoyed a good relationship with K and she looked up to him. The appellant invited K into the bus and showed her some jewellery in a jewellery box. He invited her to select a piece. The appellant then removed K's lower clothing and positioned himself behind her. The appellant placed his erect penis between K's upper thighs and rubbed his penis on the outside of her vagina.
Count 2
Count 2 involves L, and an offence that occurred on the second farm. The appellant was then 16 years of age and L was 12.
The appellant was in his bedroom when L entered with some laundry. After she entered the room the appellant closed the door behind her. The appellant told L to take off her clothes and at the same time removed his clothes. When L told the appellant that she didn't wish to, he said he would tell their father that she had stolen some money if she refused to do what he said. The appellant then sexually penetrated L by introducing his penis into her vagina. L was telling the appellant not to do it. The appellant put his hand over L's mouth to silence her.
Count 3
Count 3 was a representative count. The sexual abuse of L continued almost daily throughout the next four years before the appellant left home. That it was occurring in the household was unremarkable in a context where, throughout this entire period, L was being regularly abused by her father and, on occasions, her father and mother.
L had gone to the toilet when the appellant entered the toilet. L recalls this incident because the appellant used a plastic freezer bag as a condom to protect her from pregnancy during sexual intercourse. L recalls it was shortly after she had her first period. The appellant placed her hands against the wall and sexually penetrated her by introducing his penis into her vagina, using a plastic freezer bag as a form of protection. The appellant told L, who was crying, to be quiet. The appellant continued to penetrate L until he ejaculated into the freezer bag.
Count 7
This offence occurred sometime around 2002, when the appellant was about 17 years of age and K was 7 years of age. K was in the appellant's bedroom. He closed the door and proceeded to remove her pants from behind her. The appellant placed his erect penis between her legs and rubbed on the outside of her vagina until he ejaculated into a handkerchief. The appellant then asked K to put the handkerchief in the washing.
Count 4
The offence charged in count 4 of the indictment occurred when the appellant was 19 years of age and had left home. He visited the second farm on this occasion. The appellant again forced his way again into the toilet where L was. He placed his hand over her mouth. The appellant removed L's pants and underwear and then, seated on the toilet, pulled L on top of him and sexually penetrated L by introducing his penis into her vagina. The appellant continued until ejaculation.
Count 5
Count 5 again was on an occasion when the appellant had returned to the second farm to visit the family. He was then 19 years of age. The appellant initially offered L some money. She refused and did not want anything to do with the appellant. The next thing L remembers was being on her hands and knees on the foldout couch and that the appellant was sexually penetrating her by introducing his penis into her vagina. After a couple of minutes, the appellant removed his penis and ejaculated.
Personal circumstances
The appellant attended a number of primary schools due to the relocation of the family. He attended two high schools, completing year 10. He then completed two years of schooling through distance education. The appellant did not attain the scores necessary for university entrance, but completed a Certificate 3 in horticulture through a correspondence course. The appellant then did a bridging course and entered university. He studied horticultural management for two years before leaving without completing his degree.
The appellant worked in shearing for a period after leaving school, but then commenced working at a horticultural company where he was promoted to the position of assistant manager. He remained in that position for some 10 years. The appellant was dismissed when the police arrested him in relation to the present matters.
The appellant did not suffer from any identified mental health issues. He did not disclose any acts of sexual victimisation against him. A psychologist assessed the appellant, who continued to protest his innocence, as presenting an average or moderate risk of sexual reoffending.
The trial judge accepted that the appellant was raised in a dysfunctional family. His father was a violent tyrant. The offences occurred in a dysfunctional household where there was no moral guidance afforded to the appellant. The appellant demonstrated no remorse or insight into his offending.
The appellant's previous criminal history records no relevant sexual offending but his past traffic convictions suggest a disregard or an attitude of disregard for the law.[33]
Sentencing judge's approach
[33] Trial ts 716-718.
The sentencing judge identified the following aggravating factors in respect of the appellant's offences:[34]
(1)The offending was over a period of time and repeated. The offending against L began when she was 10 years of age and ended when she was approximately 15. The offending was continuous throughout the period from early 2001, when L was 12, until the appellant went to Perth for schooling.
(2)The complainants were the appellant's younger sisters.
(3)The appellant was 4 years older than L and 10 years older than K.
(4)The appellant disliked L, and seemingly took some pleasure in humiliating and degrading her. The appellant's behaviour was humiliating and degrading in nature, and included acts of penile - vaginal penetration against L's will.
(5) The appellant knew L was being abused by their father with whom the appellant enjoyed a close relationship. The appellant used his relationship with their father as a weapon, making threats against her to enforce compliance while aware that L was fearful of his punishment. The appellant was aware at the relevant time that his sisters were vulnerable to the conduct of their father, that there was no protection from their mother and that their mother was complicit in some of the abuse.
[34] Trial ts 711-712.
The trial judge also noted two mitigating factors, being that:[35]
(1)The offending commenced when the appellant was only 14 years of age.
(2)The offending occurred in what can only be described as a disturbingly dysfunctional household in which the appellant was also raised.
[35] Trial ts 712.
In sentencing the appellant, the trial judge took account of the appellant's age at the time of offending, that he was raised in a dysfunctional environment where females of the household were degraded, humiliated and abused, and the absence of any moral compass from the appellant's parents. However, the trial judge was satisfied that, at the time of committing the offences, the appellant knew that his conduct was wrong, but participated in the abuse of his sisters in any event (perhaps encouraged by the conduct of their father, with whom the appellant enjoyed a trusted relationship).[36]
[36] Trial ts 713.
The trial judge also noted that the appellant gave evidence at trial and demonstrated no remorse or victim empathy to the complainants. In the pre-sentence report, it was noted that the appellant maintained his and his father's innocence in respect of the offences. The appellant indicated that he despised his mother, seemingly for her admission of the offending and giving evidence against his father. The trial judge regarded the appellant's continued refusal to recognise the events as troubling, and noted that the appellant's refusal to assist the psychologist to whom the appellant was referred for a pre-sentence assessment left the judge with little assistance.[37]
[37] Trial ts 713.
The trial judge referred to the victim impact statement prepared by L, which the trial judge observed:[38]
speaks volumes as to the extent to which your behaviour has impacted upon her and continues to do so and undoubtedly will continue to do so.
…
Her years of growing up being saddled with the abuse from not only her father, but also her mother and you, has scarred her forever.
Ground 1: express error
[38] Trial ts 714-715.
Ground 1 in the sentence appeal asserts an express error. The error, as explained by counsel in oral submissions,[39] concerned a single sentence in the trial judge's sentencing remarks.
[39] Appeal ts 16.
Before turning to the error which counsel sought to identify, notice should be taken of the following provisions of the Young Offenders Act which were relevant for the sentencing of the appellant for the offences charged in counts 1 - 3 and 6 - 7 of the indictment. Those offences all occurred when the appellant was under the age of 18 years.
Section 50B of the Young Offenders Act applies where a young person found guilty of an offence is 18 years old or older at the time of being sentenced. Section 50B(2) provides that:
Subject to the Sentencing Act 1995 the court dealing with the offender must dispose of the matter by sentencing the offender under that Act, and that Act and the Sentence Administration Act 2003 apply to and in respect of the sentence imposed.
However, s 50B(5) provides that, despite s 50B(2), s 46 of the Young Offenders Act applies to the court dealing with an offender. Section 46 provides for the principles and considerations to be applied to young offenders, including the general principles of juvenile justice which are found in s 7 of the Young Offenders Act.
The trial judge referred to s 46 and s 7 of the Young Offenders Act as provisions to which he was required to have regard in respect of the offences committed by the appellant as a juvenile. The trial judge referred to the fact that the principles which he was required to apply included ensuring that a young person is dealt with in a way that encourages that person to accept responsibility for his conduct and is designed to give the offender the opportunity to develop a sense of social responsibility. The trial judge observed that the age, maturity and cultural background of the offender must be considered while recognising that the community must be protected from illegal behaviour and that the disposition of the matter should not jeopardise the protection of the community. The trial judge said:[40]
Whilst it's not a case that you're going to be detained as a juvenile, it is a factor that I take into account that had you been dealt with at the time in respect of these offences, you would have been - and that's a factor that I take account in determining what is the appropriate sentence to be imposed.
While having regard to the matter, I'm mindful that you're now 32 and to be sentenced in respect of serious offences that were committed against your sisters over 13 years ago. There's no question that ordinarily youth is a mitigating factor. It's a valid ground for leniency and it justifies a lower sentence than would otherwise be indicated.
[40] Trial ts 719.
The trial judge then made the following observation, which the appellant seeks to impugn in this ground of appeal:[41]
This is not a case, however, where the impact of having to serve a term of imprisonment on you as a juvenile applies in that you are 32 years of age, rather than the young man at the time of the offending and that is a relevant matter. Had I been sentencing you for these matters about the time of the offending, it would have been a matter warranting a significantly more lenient sentence. (emphasis added)
[41] Trial ts 719.
The appellant identifies the italicised portion of this passage as involving express error. The appellant says that the fact that the appellant was to serve his sentence as an adult did not mean that he should have to serve a sentence longer than he would have if he had been dealt with as a juvenile.
The State submits that the impugned comment is a reference to s 46(4) of the Young Offenders Act, which provides:
In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.
It is not entirely clear what the trial judge was referring to in the impugned comment. His Honour may have been indicating that if the appellant was sentenced when he was a child it was unlikely, on the options available under the Young Offenders Act, that he would have received a sentence of imprisonment (as opposed to juvenile detention) at all. The trial judge may have also been referring to the fact that if the appellant was a child when sentenced, then his age at the time of sentencing would have been an additional mitigating factor. However, it is unnecessary to resolve questions of the trial judge's intended meaning in this appeal. The impugned comment expresses a conclusion about the sentence that might have been imposed in the hypothetical case where the appellant was sentenced at a time when he was still a child. The accuracy or otherwise of the trial judge's assessment of that hypothetical sentence does not determine this appeal, which instead turns on whether the trial judge correctly applied the principles contained in the Young Offenders Act when sentencing the adult appellant for offences committed when he was under the age of 18 years.
It is clear that the trial judge did properly apply those principles. The trial judge expressly referred to the relevant provisions of the Young Offenders Act. The application of those principles is also evident in the sentence which the trial judge imposed in respect of counts 1 - 3 and 6 - 7. The sentences of imprisonment for those offences were of a length which was significantly shorter than may have been expected if the offences were committed by the appellant as an adult, and are to be served wholly concurrently with the sentences imposed for the appellant's adult offending.
The appellant has not established that the trial judge made any material express error of principle in respect of the sentences imposed on the appellant in respect of the offences committed as a child. While we would grant leave to appeal on ground 1 in the sentence appeal, we would not uphold that ground.
Further, as will be apparent from our observations in dealing with ground 2, even if an express error had been established and it were necessary for this court to consider the appropriate sentencing outcome, we would be of the opinion that no different sentence should have been imposed.[42]
Ground 2: totality
[42] Section 31(4)(a) of the Criminal Appeals Act 2004 (WA).
Ground 2 of the sentence appeal contends that the total effective sentence of 5 years' immediate imprisonment infringes the first limb of the totality principle. There is no merit in this ground.
The principles governing the determination of appeals alleging an infringement of the totality principle are well established,[43] and need not be repeated here.
[43] Salkilld v The State of Western Australia [2017] WASCA 168 [48].
It is not reasonably arguable that the total effective sentence of 5 years' immediate imprisonment imposed on the appellant fails to bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.
The maximum penalty for the offences against s 329(2) of the Criminal Code (being counts 2 - 5 on the indictment), where the victim is under the age of 16 years, is 20 years' imprisonment. The maximum penalty for offences against s 329(4) or s 329(5) of the Criminal Code (being counts 1 and 6 - 7 on the indictment), where the victim is under the age of 16 years, is 10 years' imprisonment.
In considering the criminality involved in all of the offences, it is appropriate to focus on counts 4 and 5 on the indictment, which related to charges of offences committed when the appellant was an adult. Both counts 4 and 5 were very serious examples of offences against s 329(2) of the Criminal Code. Those offences involved the appellant forcing himself sexually on his younger sister in a violent and degrading manner. He employed a combination of his greater strength and the threat of using his relationship with their abusive father to procure L's punishment. The penetration involved unprotected penile-vaginal sexual intercourse, with the offence in count 4 involving the appellant ejaculating inside of L. L was in a vulnerable position in a dysfunctional and abusive household, which the appellant well knew. The offending was not isolated or uncharacteristic, but part of a pattern of sexual violence by the appellant towards his younger sister. That pattern of abuse, together with that inflicted on L by their parents, had a devastating effect on L, traumatising her during her childhood and significantly impacting on her life and relationships as an adult.
The appellant showed no remorse or insight into the impact of his offending, and did not have the mitigating benefit of a plea of guilty.
The general principles relating to sentencing for offences of intra-familial sexual abuse of children are well established. As was noted by Buss JA, with whom other members of the court agreed, in FWB v The State of Western Australia:[44]
The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children.
It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender.
…
There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. (citations omitted)
[44] FWB v The State of Western Australia [2016] WASCA 118 [52] - [53], [57].
It is unnecessary to canvass cases in which sentences for sexual offending have been reviewed in any detail. It is clear that the individual sentences for counts 4 and 5, and the total effective sentence, stand well below the range commonly imposed for offences of this kind. As the court recently noted in WRN v The State of Western Australia,[45] sentences of 5 - 6 years' immediate imprisonment are not unusual in cases of individual offences of penile - vaginal sexual penetration of a child by an adult in circumstances where there is no plea of guilty. The recent review of cases in JJR v The State of Western Australiaindicates that total effective sentences in excess of 10 years' imprisonment are commonly imposed for offences representing sustained sexual offending by an adult against multiple children.[46]
[45] WRN v The State of Western Australia [2017] WASCA 145 [31].
[46] JJR v The State of Western Australia [2018] WASCA 51 [112] - [159].
The leniency of the appellant's total effective sentence of 5 years' immediate imprisonment is explicable by the trial judge attaching significant weight to the age of the appellant at the time of the commission of the offences charged in counts 4 and 5, the dysfunctional and depraved environment in which the appellant was raised and the principles of juvenile justice in relation to offences committed by the appellant as a juvenile. The impact of the sentences of imprisonment imposed for the appellant's offending as a juvenile were moderated by an order that those sentences be served concurrently.[47]
[47] Giglia v The State of Western Australia [2010] WASCA 9 [40].
In all the circumstances, including those personal to the appellant, it cannot be reasonably contended that the total effective sentence of 5 years' imprisonment infringes the first limb of the totality principle. Leave to appeal on ground 2 of the sentence appeal should be refused.
Orders
For the above reasons, the following orders should be made in the appeals.
CACR 126 of 2017 (conviction appeal)
(1)Leave to appeal is granted on the sole ground of appeal.
(2)The appeal is dismissed.
CACR 127 of 2017 (sentence appeal)
(1)Leave to appeal on ground 1 is granted.
(2)Leave to appeal on ground 2 is refused.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL12 JUNE 2018
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