PDS v The State of Western Australia
[2006] WASCA 20
•10 FEBRUARY 2006
"PDS" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 20 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:128/2004 | 2 SEPTEMBER 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA PULLIN JA | 10/02/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed in CCA 128 of 2004 Leave granted in CCA 129 of 2004 Appeal dismissed in CCA 129 of 2004 | ||
| B | |||
| PDF Version |
| Parties: | "PDS" THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Turns on own facts |
Legislation: | Nil |
Case References: | "VIM" v The State of Western Australia [2005] WASCA 233 Azzopardi v The Queen (2001) 205 CLR 50 Bell v The Queen [2001] WASCA 40 Benedetti v The State of Western Australia [2004] WASCA 278 Bishop v The Queen [2003] WASCA 79 Bosworth v The Queen [2004] WASCA 43 Boudville v The Queen [2001] WASCA 133 Boxer & Ors v The Queen (1995) 14 WAR 505 Dickens v The Queen (2004) 147 A Crim R 343 Jones v The Queen (1997) 191 CLR 439 Lawrence v The State of Western Australia [2005] WASCA 14 LSC v The Queen [2003] WASCA 303 M v The Queen (1994) 181 CLR 487 R v ITA [2003] NSWCCA 174 R v Lebler [2003] NSWCCA 362 R v Markuleski (2001) 52 NSWLR 82 R v Podirsky (1989) 43 A Crim R 404 RPS v The Queen (2000) 199 CLR 620 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "PDS" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 20 CORAM : WHEELER JA
- ROBERTS-SMITH JA
PULLIN JA
- CCA 129 of 2004
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CRISFORD DCJ
File No : IND 666 of 2003
Catchwords:
Appeal - Criminal law and procedure - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed in CCA 128 of 2004
Leave granted in CCA 129 of 2004
Appeal dismissed in CCA 129 of 2004
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr K P Bates & Ms F A Cain
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
"VIM" v The State of Western Australia [2005] WASCA 233
Case(s) also cited:
Azzopardi v The Queen (2001) 205 CLR 50
Bell v The Queen [2001] WASCA 40
Benedetti v The State of Western Australia [2004] WASCA 278
Bishop v The Queen [2003] WASCA 79
Bosworth v The Queen [2004] WASCA 43
Boudville v The Queen [2001] WASCA 133
Boxer & Ors v The Queen (1995) 14 WAR 505
Dickens v The Queen (2004) 147 A Crim R 343
Jones v The Queen (1997) 191 CLR 439
(Page 3)
Lawrence v The State of Western Australia [2005] WASCA 14
LSC v The Queen [2003] WASCA 303
M v The Queen (1994) 181 CLR 487
R v ITA [2003] NSWCCA 174
R v Lebler [2003] NSWCCA 362
R v Markuleski (2001) 52 NSWLR 82
R v Podirsky (1989) 43 A Crim R 404
RPS v The Queen (2000) 199 CLR 620
Woods v The Queen (1994) 14 WAR 341
(Page 4)
1 JUDGMENT OF THE COURT: On 2 September this year, the Court granted the applicant an extension of time within which to seek leave to appeal against conviction and sentence. Those applications related to his conviction on six counts relating to sexual offences against his natural daughter.
Evidence at trial
2 The State alleged that over a period of about four years, from some time in 1998 to some time in 2001, a number of particularised events had occurred against the background of other sexual abuse of the complainant by the applicant.
3 At the time of trial, the complainant was 18 years of age, and the alleged offences were said to have occurred between her 12th and 16th years of age. She lived with the applicant and his wife (her mother) and three siblings. The common practice in the household was that the applicant and the complainant would stay awake much later than other members of the family. All offences, except the first count, were alleged to have occurred in the lounge room at night when only the applicant and complainant were awake. By way of explanation of the relationship between them, the complainant's evidence was that the applicant's discipline of her included striking with a stick, which she described as being similar to a piece of doweling. She said that on occasions she would not wish to engage in sexual behaviour with him, but that he would become angry and that she was concerned that he would hurt her in some way.
4 The first offence, count 1, is alleged to have occurred on an occasion when, after some persuasion, the complainant agreed to have sex with the applicant, and he penetrated her vagina with his penis in the cubby house in the backyard. This was about the time of the complainant's first menstruation, and was the first sexual event. Counts 2 and 3 related to another specific incident, in which the complainant said the applicant asked to have anal intercourse with her. He placed a finger in her anus (count 2) and then inserted his penis (count 3). She recalls bleeding when she went to the toilet. Count 4 relates to a request that the complainant perform oral sex upon the applicant. She recalled the applicant ejaculating into her mouth. Counts 5 and 6 also related to oral sex, the applicant performing oral sex upon the complainant, while requesting her to perform oral sex upon him. The jury convicted the applicant on all counts.
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5 In August 2002, the complainant suffered a nervous breakdown and was admitted to Bentley Hospital. She said that she had at that time stopped looking after herself, and did not know her age, or what day it was. Her behaviour was of such concern to her mother that her mother seems to have prompted her admission to hospital. While in the hospital, she began to discuss the abuse with a person she befriended there, and a young girl in a "similar situation" at the hospital advised her to go to the police. Following her discharge, she did complain to the police, who interviewed the applicant.
6 The defence case relied heavily upon the complainant's admission to the Bentley Hospital and upon the bizarre behaviour she had exhibited prior to admission. It was contended that the complainant was mistaken and that the offences were imaginary. It was also contended that there were inconsistencies in the complainant's story and that her recollection, which was vague in parts and much more detailed in other parts, was consistent with invention or imagination.
7 The applicant did not give evidence at trial, but did take part in a videotaped record of interview, which was tendered at trial. In that interview, he denied that there had been sexual contact between him and his daughter. He described her odd behaviour in August 2002, and her statements, which he knew to be false, that she was married to her boyfriend, that she had two children, and that she was pregnant. He asserted in his videotaped interview that she had never gone into the cubby house. He said she had been "obsessed" with sex from the age of about 12, and would constantly talk to him about it and question him about intimate details of his relationship with her mother. He said that she was "amorous" towards him, occasionally stroking his thigh, or playing with his hair, sitting on his lap and cuddling and kissing him.
8 He admitted to having struck her on one occasion, but said that was after a serious altercation in which she had attacked other people in the family. He discussed an incident, which seems rather odd, of putting ointment on her vagina at some time during the period in question, because she said that it was sore. This occurred on two occasions. He also said that on one occasion shortly before she went to hospital, she had threatened that she knew how to make sure that he went to gaol.
9 The applicant's wife gave evidence. Her evidence was in some aspects supportive of the State case, and in others tended to support things which the applicant had said in the video. She described her relationship with the complainant as not close, saying that the complainant had had a
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- closer relationship with the applicant. She confirmed that she and the younger children would go to bed much earlier than the applicant and the complainant. She described physical discipline of the children by the applicant, including the use of a stick. She described an incident when the complainant had contracted thrush at age 13 or 14, and the applicant had applied ointment. She said that the complainant had spoken to her about the complainant and her boyfriend touching each other in a sexual way. She described the events leading up to the complainant's admission to hospital, by which stage the complainant was unable to distinguish day from night on occasion, would not eat properly, and talked to herself. The complainant was admitted as an involuntary patient.
The appeal - conviction
10 The applicant was assisted in his appeal by the Unrepresented Criminal Appellants' Programme (UCAP). He produced grounds of appeal and submissions of his own, and UCAP also produced an outline of submissions in relation to the two grounds which were judged by those conducting that programme as being most likely to succeed. UCAP also provided short submissions in relation to the application for leave to appeal against sentence, and the applicant himself provided certain material. We propose to deal first with the UCAP grounds in relation to conviction, then with the applicant's grounds, and then with the question of sentence.
11 Her Honour the trial Judge gave a direction as to inferences at page 137 of the trial transcript. It was in the following terms:
"Again, as I say, there's no doubt she was a troubled girl at that time. Some of the cross examination by defence clearly showed that - well, it's for you to decide whether it was clearly shown or not that she was unhappy at school, she was unhappy at home, she had trouble with her mum, she was unhappy at cadets, friends' trouble, there's a suggestion that she was unhappy about her brother being born, unhappy with boyfriend.
That's one inference you can draw, but of course there are a lot of other possibilities. Another possibility is that if you were to believe there had been abuse, this may have been something that tipped her. It may have been a cry for help. But where you are looking at inferences you have to be careful. You can't just say, 'Well, look, I prefer one over the other.' The position is that you may draw inferences from facts which you have in the first place found to be established, and an inference is merely a
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- logical deduction from such facts, and before you can make an inference against Mr [S] you must be satisfied that it's the only inference that can be drawn consistent with the proven facts.
Where there are two or more competing inferences you must be satisfied beyond reasonable doubt that the inference leading to a finding of guilt is the only reasonable inference."
12 It is submitted that in summing up in this way, her Honour misled the jury by suggesting to them that the alleged sexual abuse was the direct cause of the complainant's breakdown and admission to hospital. The evidence was that the complainant had initially told police that her breakdown was attributable to other matters, although in cross-examination she added that she was "stressed because of what was happening with dad as well".
13 In a sense, giving an inference direction at all at this point, may be seen as unduly favourable to the applicant. What the jury had to do was to consider the question of the complainant's credibility and, clearly, her mental illness, whatever it may have been, was relevant to that. The effect of that illness upon her credibility was a matter either for expert evidence (of which there was none), or a matter of ordinary human experience, for the assessment of the jury, in the context of her demeanour and in the context of the nature of the allegations made. There was, in that sense, no question of drawing inferences at all.
14 Plainly, the matter did call for some comment. The two obvious possibilities were that the complainant had either had a breakdown for reasons which were unrelated to sexual abuse, which fact might adversely affect her credibility, or that, although she had had the breakdown, it did not affect her credibility and may, indeed, have been contributed to by the actions of the applicant of which she complained.
15 It is important in that context to note that her Honour's direction was that "if you were to believe that there had been abuse" (emphasis supplied) this may have been something that "tipped" the complainant. That is, her Honour was plainly not suggesting that the jury could use the fact of the complainant's mental illness in any way to conclude that there had been abuse. To the extent that she went further, her Honour must, we think, have been taken by the jury as saying to them that they could not simply "prefer" one explanation for the complainant's mental illness over another when they came to evaluate that illness and its effect on her credibility. Although the direction was unnecessary, it was, in our view,
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- favourable, rather than unfavourable, and we would not allow the appeal on this ground.
16 Next, UCAP points out that at various times during the trial, her Honour referred to the jury's decision in the singular, rather than emphasising that there were six individual counts. Transcript references are given. It is submitted that the jury may have been misled, and may have wrongly understood that they should either convict or acquit the applicant in respect of all counts, rather than considering each separately. However, her Honour gave a very clear direction (transcript 135) about that issue in these terms:
"You have to look at each charge separately and make a decision on each of them separately. When you are looking at one count you look at the evidence relevant only to that count and your verdicts do not have to be the same on each charge. If you were to find [the applicant] guilty on one charge it does not necessarily follow he is guilty on another charge. You may find that he is not guilty on all charges, not guilty on one, guilty on another. There is no magic. Each has to be assessed independently. Each is independent of the other."
17 The nature of the jury's task in relation to each separate count was made abundantly clear and the applicant cannot succeed on this count.
18 Turning to the applicant's own grounds of appeal, they are numerous and many are inadequately particularised. For example, ground 1 simply asserts that there was "no supporting evidence" and accordingly there has been a "gross miscarriage of justice". There was, of course, no supporting evidence in the form of corroboration. That is not unusual in offences of this kind. However, her Honour pointed out to the jury (transcript 133) the absence of corroborating evidence. She, of course, explained that the jury was entitled, nevertheless, to act on the word of the complainant, but told the jury to scrutinise her evidence carefully and to exercise caution when acting on her evidence alone. Her Honour went on, in that context, to note that that warning was of particular importance in the light of the evidence as to the complainant's mental state in the time preceding her admission to hospital.
19 Ground 2 asserts that the evidence was circumstantial only. That is not correct. There was direct evidence from the complainant. It also notes that no specific dates were given and that the complainant had no
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- recollection of the last alleged sexual contact. These were matters which were before the jury and it was open to them to convict.
20 Ground 3 asserts a conspiracy to pervert the course of justice. This appears to be referring to the complainant's evidence that she told others of the sexual offences committed against her, and had discussed with others, before reporting to the authorities, what she was going to say. That was material which was before the jury and which they were able to take into account, if they considered it relevant, in evaluating the complainant's evidence. It does not go so far as to suggest any conspiracy of the kind alleged.
21 Ground 4 contends that an error was made by counsel for the State in inferring that a "sexual affair" had taken place. This may be a reference to the evidence which was led by way of "relationship" evidence. Her Honour directed the jury in detail, and in conventional terms, about the use which could be made about that evidence at pages 139 - 141 of the transcript. There is no substance in this ground. Ground 5 is the ground already dealt with relating to the complainant's mental state.
22 Ground 6 asserts that the "defence" erred by not giving evidence. That is a forensic decision which was no doubt made by the applicant in consultation with his counsel. He, of course, had no obligation to give evidence. Her Honour directed the jury that no adverse inference could be drawn against the applicant by reason of that choice, explaining that the right to silence would, of course, become valueless if such an inference were open. The applicant's account in the form of the videotaped record of interview, was before the jury.
23 Grounds 7 and 8.1 assert that the jury was "manipulated" into coming up with a single verdict. This has also been dealt with in relation to the UCAP submissions. Ground 8.2 asserts that the jury was harassed into reaching a decision. However, there is no material suggesting that any such harassment took place. An examination of the transcript reveals no pressure placed upon the jury. The verdicts were unanimous, no majority direction having been given.
24 Ground 9 alleges that the verdicts were unsafe and unsatisfactory because the complainant's evidence was unreliable. The question of the complainant's reliability was a matter which was scrutinised, quite properly, in detail, during the course of cross-examination of her and of her mother. The applicant's assertions about her reliability in the videotaped record of interview were before the jury. Her Honour made it
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- clear to the jury that that was a question which they had to decide and that they should do so, scrutinising the complainant's evidence with care.
25 Ground 10, which refers to the burden on the complainant brought about by the court process, is in effect a submission relating to what the Court should do if it were to quash the applicant's convictions. It is submitted that a retrial would be inappropriate, because of the burden on the complainant. However, that question does not arise, since there is no substance in the grounds of appeal.
The appeal - sentence
26 In relation to count 1, the applicant was sentenced to a term of 5 years, being the equivalent of 7 years 6 months prior to the transitional provisions. The maximum penalty available in respect of that count was one of 20 years' imprisonment pursuant to s 329(9)(a) of the Criminal Code (WA). The other five counts attracted a maximum penalty of 10 years' imprisonment. In relation to counts 2 and 3, the applicant was sentenced to 3 years and 4 years respectively, being the equivalent of 4½ years and 6 years prior to the transitional provisions. Those were ordered to be served concurrently. Count 4 attracted a sentence of 3 years' imprisonment, the equivalent of 4 years and 6 months. Counts 5 and 6, which occurred on the same occasion, attracted sentences of 3 years for each, being the equivalent of 4 years 6 months and they were ordered to be served concurrently. Having assessed the appropriate sentence for each offence, and then assessed whether the sentences should be made concurrent or cumulative, in effect in accordance with what is sometimes called the "one transaction" principle, her Honour reviewed the total sentence and determined that, since the sentences she imposed would have resulted in a head term of 15 years, it was appropriate to order that counts 5 and 6 should be served concurrently with the other sentences, resulting in an overall term of 12 years' imprisonment (18 years prior to the transitional provisions). The applicant was made eligible for parole.
27 No complaint seems to be made about the individual sentences; rather, it is contended that the total sentence was manifestly excessive and "crushing". It was submitted on behalf of the applicant that all sentences should have been ordered to have been served concurrently, although the UCAP counsel quite properly conceded that there was a difficulty in cases of multiple counts of sexual offending in ordering that all should be served wholly concurrently.
28 In order to assess whether the sentences were within an appropriate range, it is desirable to consider yet again the question of what is the
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- appropriate way to treat multiple counts of sexual offending against children. A survey of the usual rage of sentences in cases involving multiple counts of sexual offending against children (being more than five counts generally, including at least one count of penile penetration of the vagina or anus) was recently undertaken by this Court in "VIM" v The State of Western Australia [2005] WASCA 233 at [288] to [315]. That review demonstrates that sentences have "firmed up" in recent years. As a result of that survey, it appears that it would often be the case that a term of somewhere between 10 and 19 years, imposed after trial and after allowance for the transitional provisions, would be within the range of sentences usually imposed. However, it was also noted in that case that where there are, within the group described, relatively fewer counts and more limited offending, one would expect some reduction in the aggregate term to reflect that fact. There were also noted, within that category of offending, some terms of imprisonment (although relatively few) which were very significantly below what appears to be the usual range for serious and repeated multiple offending.
29 This appellant was convicted of a relatively limited number of offences, being six in all. Her Honour rightly accepted that the offences were not isolated occurrences; they occurred against a background of repeated uncharged sexual offending against the complainant. The appellant was therefore not entitled to assert, in mitigation, that they were relatively rare lapses from otherwise appropriate behaviour.
30 There were some mitigating factors, although they were not of great weight. The appellant had no relevant other convictions. He was 40 years of age. He had had a family background which was, to some degree, unfortunate, apparently having had a family history of domestic violence perpetrated by his father upon his mother. He showed no remorse, which is not surprising since he continued to deny the offending. However, there was some suggestion in the psychological reports that, given time, and once his focus was taken away from his appeal against conviction, he might be more willing to accept responsibility and to be therefore suitable for treatment.
31 Having regard to those considerations, it seems to us that the imposition of a sentence of 12 years' imprisonment (equating to 18 years prior to the transitional provisions), while perhaps severe, when regard is had to the relatively limited number of counts (compared with many of the cases surveyed in "VIM"), was not disproportionate to the totality of the offending for which the appellant fell to be sentenced, having regard
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- to sentences generally imposed in respect of offending of a similar kind. We would therefore grant leave, but dismiss the appeal.
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