PJS v The State of Western Australia
[2013] WASCA 54
•28 FEBRUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PJS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 54
CORAM: McLURE P
PULLIN JA
BUSS JA
HEARD: 3 DECEMBER 2012
DELIVERED : 28 FEBRUARY 2013
FILE NO/S: CACR 143 of 2012
CACR 144 of 2012
BETWEEN: PJS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND BUN 48 of 2011, IND BUN 290 of 2011
Catchwords:
Criminal law - Appeal against conviction and sentence - Child sex offences - Leave to appeal refused - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 321(4)
Result:
Leave to appeal against conviction refused
Leave to appeal against sentence refused
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
McLURE P: I agree with Buss JA.
PULLIN JA: I agree with Buss JA.
BUSS JA: The appellant has applied to this court for leave to appeal against conviction and sentence.
Initially, he was charged on an indictment dated 7 November 2011 with three counts of alleged sexual abuse against a boy, S.
Count 1 alleged that between 9 April 2008 and 1 November 2008, the appellant indecently dealt with S, a child under the age of 13 years, by touching S's buttocks and masturbating in S's presence, contrary to s 320(4) of the Criminal Code (WA) (the Code). Count 2 alleged that between 1 November 2008 and 2 January 2011, the appellant persistently engaged in sexual conduct with S, a child under the age of 16 years, contrary to s 321A(4) of the Code. Count 3 alleged, in the alternative to count 2, that between 24 December 2010 and 2 January 2011, the appellant indecently dealt with S, a child of or over the age of 13 years and under the age of 16 years, by rubbing his penis on S's buttocks and masturbating in S's presence, contrary to s 321(4) of the Code.
On 8 March 2012, the State discontinued the proceedings on the indictment dated 7 November 2011.
The State then filed a new indictment dated 8 March 2012 which contained four counts of alleged indecent dealing by the appellant with S. The counts read:
(1)Between 30 January 2007 and 7 July 2007 … [the appellant] indecently dealt with [S], a child under the age of 13 years, by touching [S's] buttocks.
(2)Between 30 January 2007 and 7 July 2007 … [the appellant] indecently dealt with [S], a child under the age of 13 years, by masturbating in the presence of [S].
(3)Between 24 December 2010 and 2 January 2011 … [the appellant] indecently dealt with [S], a child of or over the age of 13 years and under the age of 16 years, by rubbing his penis on [S's] buttocks.
(4)Between 24 December 2010 and 2 January 2011 … [the appellant] indecently dealt with [S], a child of or over the age of 13 years and under the age of 16 years, by masturbating in the presence of [S].
On 15 March 2012, after a trial in the District Court before Scott DCJ and a jury, the appellant was convicted on counts 1 and 2 and acquitted on counts 3 and 4.
On 1 June 2012, the trial judge sentenced the appellant to 2 years' immediate imprisonment on count 1 and 3 years' immediate imprisonment on count 2. His Honour ordered that these sentences be served concurrently with each other. The total effective sentence was therefore 3 years' immediate imprisonment.
As at 1 June 2012, when the appellant was sentenced, he was serving an existing term of imprisonment for another offence. On 20 September 2011, Magistrate Fisher, sitting in the Magistrates Court at Bunbury, sentenced him to 20 months' immediate imprisonment, to take effect from 18 August 2011, for unlawfully assaulting another with intent to do grievous bodily harm, in circumstances of aggravation, contrary to s 317A(b) of the Code.
In the present case, his Honour ordered that the total effective sentence of 3 years' imprisonment be served cumulatively upon the existing sentence of 20 months' imprisonment. A parole eligibility order was made.
The facts and circumstances of the offending as found by the trial judge in his sentencing remarks
The facts and circumstances of the offending, as found by the trial judge in his sentencing remarks, were as follows.
In 2007, the appellant was in a de facto relationship with S's mother. At that time S was aged 9 or 10 and the appellant was 35. In early 2007, the appellant, S's mother and S commenced a trip around Australia. In January 2007 they arrived at a town in rural Western Australia. Initially, they lived in a tent in a caravan park and then in a caravan. Counts 1 and 2 occurred while the appellant was alone with S in the caravan.
As to count 1, the appellant asked S to show him his buttocks. S refused. The appellant picked S up by the waist, turned him around so that he was on his hands and knees, pulled down S's shorts and underwear, and undid his own trousers. The appellant then fondled S's buttocks.
As to count 2, while the appellant fondled S's buttocks, he masturbated and said, 'I wish your bum was a vagina' (ts 130).
Appeal against conviction: the proposed grounds of appeal
The appellant relies on four proposed grounds in his appeal against conviction.
Ground 1 alleges that 'the use of [s 31A of the Evidence Act 1906 (WA)] was gained upon a different indictment to the indictment used for trial'.
Ground 2 alleges that the 'pre‑sentence psychologist report was used in the case against the [appellant] and was not factual'.
Ground 3 alleges that 'the jury did not adhere to the [trial judge's] instructions'.
Ground 4 alleges that the verdict of the jury 'was unreasonable and cannot be supported'.
Appeal against conviction: the merits of ground 1
Prior to trial, the State gave notice of its intention to adduce propensity evidence under s 31A of the Evidence Act. Counsel for the appellant objected to the admissibility of the evidence.
The evidence in question concerned the appellant's conviction on 21 November 1994, following his pleas of guilty in the Supreme Court, on eight counts of indecently dealing with a child under the age of 13 years and two counts of sexually penetrating a child under the age of 13 years. The child was a girl aged 9. She was the appellant's brother's stepdaughter. At the material time the appellant was 22.
The State sought to lead evidence of the incidents which culminated in the 1994 convictions to show that the appellant has or had a tendency to commit sexual offences against young children who were in a familial relationship with him, and lived in close proximity with him, and to show that he was sexually attracted to young children.
On 16 December 2011, Stone DCJ ruled that the State could lead the evidence.
When Stone DCJ decided that the propensity evidence was admissible under s 31A, he made these observations about the original indictment dated 7 November 2011:
The accused … has been charged on indictment with one count of indecently dealing with a child under the age of 13 years, and one count of persistently engaging in sexual conduct with a child under 16 years, and in the alternative to that count, indecently dealing with a child of or over the age of 13 years and under the age of 16 years.
It seems to me that the two counts of indecent dealing charged on the indictment are duplex, in that each count alleges two indecent acts, contrary to clause 2(4) of Schedule 1 of the Criminal Procedure Act and section 2 of the Criminal Code. At some stage prior to trial, I anticipate the State will indicate which of the alleged indecent acts in each of the counts it will proceed with (ts 25).
These comments no doubt prompted, at least in part, the State's decision on 8 March 2012 to discontinue the original indictment and file the new indictment.
The reformulation of the charges alleged against the appellant did not render the propensity evidence inadmissible at trial. Generally for the reasons given by Stone DCJ, the conditions under s 31A for the admissibility of that evidence were satisfied in relation to the counts on which the appellant was convicted.
At trial, the prosecutor read into evidence the material facts relating to the offences the subject of the 1994 convictions (ts 51 ‑ 52). Defence counsel did not object.
Ground 1 is without merit.
Appeal against conviction: the merits of ground 2
The 'pre‑sentence psychologist report' referred to in ground 2 is irrelevant to the appellant's conviction on counts 1 and 2.
After the appellant was convicted, a pre‑sentence report dated 14 May 2012 and a psychologist's report dated 24 May 2012 were prepared. These reports were part of the information before the trial judge when he imposed sentence on 1 June 2012. They have no bearing upon whether a material error of law or a miscarriage of justice occurred at trial.
In any event, it is not apparent that either the pre‑sentence report or the psychologist's report contains any material error of fact. Further, it is not apparent that, to the extent the trial judge relied on them in sentencing, any of the opinions expressed in the reports was unreasonable.
Ground 2 is without merit.
Appeal against conviction: the merits of ground 3
Ground 3 alleges that 'the jury did not adhere to the [trial judge's] instructions'. No particulars of the relevant instructions or the alleged disobedience by the jury have been given.
The appellant sought to explain this ground at the hearing:
I'm a little bit confused from my paperwork here. It's a bit ‑ the jury did not adhere to the judge's instructions. That happened on a lot of occasions. I'm sure that you have read through the transcript and you may be able to point out a few yourself but the jury was very carefully instructed as to what their requirements were and to the burden of proof and the evidence that was to be adduced, that the finding could only be based on evidence.
Now, there was no evidence adduced by the prosecution or witnesses. There was no evidence formally given, only accusations and I have been sentenced on an accusation alone (appeal ts 11).
At trial, the State's witnesses comprised S, N (a friend of S's) and Detective Senior Constable Peter Timms. Also, the prosecutor read into evidence (without objection from defence counsel) the statements of two other witnesses. In addition, as I have mentioned, the prosecutor read into evidence the relevant propensity evidence.
The jury convicted the appellant on counts 1 and 2 and acquitted him on counts 3 and 4.
It is not apparent from the trial record or the jury's verdicts that the jury failed to adhere to the trial judge's directions or any of them.
Ground 3 is without merit.
Appeal against conviction: the merits of ground 4
Ground 4 alleges that the verdict of guilty on counts 1 and 2 'was unreasonable and cannot be supported'.
By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 ‑ 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
However, this court, in assessing whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
I have already referred to the witnesses called by the State and the material read into evidence by the prosecutor.
The appellant gave sworn evidence at the trial. Defence counsel did not call any other witnesses. The appellant denied that any of the alleged offending had happened.
I am satisfied, on my perusal of the trial record, that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 1 and 2. A jury, acting reasonably, was not precluded by the state of the evidence at trial from being satisfied to the requisite standard of his guilt on those counts. The jury had the very significant advantage of seeing and hearing the witnesses (in particular, S) give their evidence. I am satisfied, on the basis of the trial record, that there is no reasonable basis for arguing that the jury must necessarily have entertained a doubt about the appellant's guilt on count 1 or count 2. I do not have a doubt about his guilt. The jury's verdicts of guilty were not unreasonable and those verdicts were supported by evidence that the jury was entitled to accept.
Ground 4 is without merit.
Appeal against conviction: conclusion
None of the proposed grounds of appeal has a reasonable prospect of success.
Leave to appeal against conviction must therefore be refused and the appeal dismissed.
Appeal against sentence: proposed ground of appeal
The appellant relies on one proposed ground in his appeal against sentence.
The ground alleges that the prosecutor 'failed to answer the question from the judge correctly … as to previous time spent in custody [and therefore the] backdating of the sentence was incorrect' [sic].
The essence of the appellant's complaint is that the trial judge erred in not backdating the total effective sentence of 3 years' imprisonment to take into account time spent by the appellant in custody on remand between 3 January 2011 and 2 March 2011.
Appeal against sentence: the merits of the proposed ground
At the sentencing hearing on 1 June 2012, the trial judge had a brief interaction with the prosecutor, before his Honour commenced his sentencing remarks, about the possible backdating of the sentence:
SCOTT DCJ: Yes, all right. Thank you.
There's no backdating, Mr Carlson, is there?
CARLSON, MR: No, sir (ts 129).
After imposing the individual sentences for counts 1 and 2 and the total effective sentence of 3 years' imprisonment, his Honour ordered that the total effective sentence be served cumulatively upon the existing sentence of 20 months' imprisonment which was imposed by Magistrate Fisher on 20 September 2011. His Honour recorded his understanding that the 20‑month sentence had been backdated to 18 August 2011. He then explained when the appellant would become eligible to be considered for release on parole:
SCOTT DCJ: Well, what happens is that the sentence of 20 months gets added to the sentence of three years commencing on 18 August 2011 in determining the issue of parole. You are first eligible at the expiration of two years eight months which is calculated from that date being 18 August 2011. So that is the date upon which you're first eligible (ts 137).
After the hearing before this court, the court obtained details from the Sentence Information Unit of the Department of Corrective Services as to the time spent by the appellant in custody on remand in relation to the offence for which he was sentenced by Magistrate Fisher and the offences for which he was sentenced by the trial judge.
The Sentence Information Unit said that the appellant was in custody on remand between 3 January 2011 and 2 March 2011 and, again, between 18 August 2011 and 20 September 2011.
On 2 January 2011, S made his original complaint about the appellant's offending (ts 44, 129). The offence for which Magistrate Fisher sentenced the appellant also occurred on 2 January 2011. The appellant assaulted K, who is the adult sister of S.
The transcript of the sentencing hearing before Magistrate Fisher on 20 September 2011 reveals that the sentence of 20 months' imprisonment which he imposed was backdated to 18 August 2011. The transcript also reveals that the magistrate reduced the sentence he would otherwise have imposed from 24 months to 20 months to take into account the time spent by the appellant in custody on remand between 3 January 2011 and 2 March 2011:
[T]he sentence otherwise appropriate is 24 months … I accept the fact that upon your apprehension you were remanded in custody for the period between 3 January and 1 March [sic], a period of approximately two months, which when one has regard to the option and entitlements to parole and with good behaviour, would equate essentially to four months' imprisonment, and I will depreciate the penalty indicated by that extent, giving you a head sentence of 20 months' imprisonment (ts 7).
Accordingly, the appellant received credit in the sentencing process before Magistrate Fisher for all of the time he had spent in custody on remand.
In these circumstances, it is not reasonably arguable that the trial judge made an error in not backdating the total effective sentence of 3 years' imprisonment or not giving credit for any of the time spent by the appellant in custody on remand.
The proposed ground is without merit.
Appeal against sentence: conclusion
The proposed ground has no reasonable prospect of success.
Leave to appeal against sentence must therefore be refused and the appeal dismissed.
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