R v W, PR (No 2) - [2006] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, PR (No 2)
[2006] SASC 236
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
10 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - INTERFERENCE WITH WITNESSES OR JURORS
Appellant originally convicted of two counts of unlawful sexual intercourse, two counts of attempting to dissuade a witness and two counts of failing to comply with a bail agreement - appellant appealed against all convictions - appeal allowed only on convictions of unlawful sexual intercourse and a retrial was directed on these counts - appellant acquitted upon retrial - appellant re-sentenced on remaining convictions to 18 months imprisonment with a non-parole period of nine months - appeal against sentence - where witness was to give evidence of uncharged acts involving the appellant and complainant disclosing a course of conduct - where appellant threatened witness on two occasions that she would not be allowed to see family members if she gave evidence and did not retract her statement - whether sentencing judge should have taken into account fact that appellant acquitted of sexual offence on retrial - whether sentencing judge should have taken into account supposedly mitigating features which emerged during retrial - where counsel submitted mitigating features included: evidence of lack of premeditation on first occasion witness threatened; witness conceded she did not make specific allegation to police regarding second occasion - whether sentence was manifestly excessive - found acquittals were irrelevant to the sentencing process and circumstances did not give rise to an inference that the witness was untruthful - evidence did not necessarily show a lack of premediation on the first occasion - sentencing judge did not make finding of premeditation in any event - witness did not give any evidence during retrial which undermined effect of her evidence at first trial - in any event, evidence at first trial was of primary importance for the purposes of sentencing - sentence was not manifestly excessive - Held: appeal dismissed.
Bail Act 1985 s 17; Criminal Law Consolidation Act 1935 s 244, referred to.
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445; R v Jenner & Masters (2000) 110 A Crim R 512, discussed.

R v W, PR (No 2)
[2006] SASC 236
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ. I would dismiss the appeal against sentence. I agree with the reasons given by Duggan J.
DUGGAN J. This is an appeal against sentence on two counts of attempting to dissuade a witness from attending as a witness at judicial proceedings or from giving evidence at such proceedings contrary to s 244(3) of the Criminal Law Consolidation Act 1935 and two counts of failing to comply with a bail agreement, contrary to s 17 of the Bail Act 1985.
The information on which the appellant was charged also alleged three counts of unlawful sexual intercourse and one count of indecent assault. It was alleged that the sexual offences were committed on the appellant’s step-daughter PW. The prosecution alleged that the appellant attempted to dissuade PW’s sister, LW from attending as a witness. The charges of failing to comply with a term of a bail agreement were based on an allegation that the appellant contacted LW contrary to a term of his bail agreement.
The appellant pleaded not guilty to all charges, which were tried in the District Court in August 2005. On 17 August 2005, he was acquitted on one of the charges of unlawful sexual intercourse and the charge of indecent assault. He was convicted on the remaining charges.
On 9 September 2005, the appellant was sentenced to imprisonment for three years for the sexual offences for which he was convicted and imprisonment for two years for the offences of attempting to dissuade a witness from giving evidence and breach of a bail agreement. The second sentence was made cumulative on the first, resulting in a total head sentence of imprisonment for five years. A non-parole period of three years was fixed.
The appellant appealed against all convictions. The appeal was allowed in respect of the convictions for the sexual offences and a retrial ordered on those counts. The appeal against the convictions on the counts alleging the attempts to dissuade the witness from giving evidence and the breaches of the bail agreement was dismissed.
The appellant was retried on the sexual offences and acquitted.
In these circumstances, it became necessary for the District Court to sentence afresh on the attempt to dissuade the witness from giving evidence and the breach of bail agreement offences. The sentencing judge imposed one sentence on all four counts. The appellant was sentenced to imprisonment for 18 months with a non-parole period of nine months.
These offences took place in the following circumstances.
According to LW, she saw the appellant engaging in sexual acts with PW in the family home. She gave a statement to the police about these matters on 7 August 2003. At this time she was 15 years of age.
PW also made a statement to the police which led to the laying of the charges in relation to the sexual offences. It was anticipated that LW would give evidence of the observations which she claimed she made concerning the appellant’s conduct towards PW. She was not a witness to the offences charged in the information, but the evidence which she was to give was to be led as uncharged acts disclosing a course of conduct.
In late 2003, LW went to live with a family in foster care. At the first trial, she gave evidence that, in December 2003, she received a telephone call from the appellant. After speaking about general matters, the appellant asked her not to give evidence and to retract her statement. The appellant added that, if she did not, she would not be allowed to see her mother and younger sister again.
LW gave evidence about another incident which she said took place around August 2004. She said she was an inpatient at the Women’s and Children’s Hospital and the appellant and her mother, brother and sister came to visit her. She gave evidence that, on this occasion, the appellant said to her again that if she did not retract her statement, she would not be able to see her mother or younger sister again.
The first argument put forward by Mr Niarchos, for the appellant, was that the sentencing judge failed to take into account that the appellant had been acquitted of the sexual offences. According to the argument, the offences for which the appellant was sentenced were at the lower end of the scale of seriousness because the appellant’s actions constituted attempts to prevent untruthful evidence from being given to the court.
In support of this argument, Mr Niarchos relied upon the presumption of innocence and the acquittals on the sexual offences.
In my view, reliance on the presumption of innocence is misplaced. All persons are entitled to the presumption of innocence, regardless of the truth or otherwise of the allegations which are about to be made against them. The presumption of innocence can have no effect on the gravity of the offence of attempting to dissuade a witness from giving evidence.
The acquittals were also irrelevant to the sentencing process in the present case. The jury verdicts on the counts which alleged sexual offences do not necessarily involve a finding that the allegations were untruthful. As the trial judge said in his directions to the jury, acquittals must result even if the jurors considered that the appellant was probably guilty. All that can be said is that the charges were not proved beyond reasonable doubt.
It may be that, in some cases where it can be established that the witness had made a false statement to the police or intended to give false evidence, this consideration could operate as a mitigating factor. However, as I have attempted to explain, the circumstances here do not permit the inference to be drawn that the witness was untruthful.
Next, it was argued that certain mitigating features relating to the commission of the offences of attempting to dissuade the witness from giving evidence emerged at the second trial and were not taken into account when the appellant was sentenced on the second occasion for these offences.
Mr Niarchos conceded that the court was bound to sentence the appellant on the core facts upon which the verdicts of the jury were based at the first trial. However, he distinguished those facts from the evidence which he relied upon to support his argument.
Mr Niarchos drew attention to LW’s evidence at the second trial where she said that when she received the telephone call on the first occasion on which the threat was made, the witness’s younger brother came on the telephone first and spoke to her about family matters before the appellant came on and spoke to her. It was said that this suggested that no premeditation was involved. This submission was not made to the sentencing judge.
The appellant did not give evidence at the first trial. He gave evidence at the second trial and denied that the telephone call was made.
The mere fact that the witness’s younger brother spoke first does not lead to the conclusion that the telephone call was without premeditation. It is equally open to the inference that the appellant arranged for the boy to speak to his sister first so as to provide an excuse for the call. However that may be, the judge did not make any finding that there was premeditation in relation to this incident. The fact that the appellant made two attempts to dissuade the witness is a more pertinent consideration.
The second issue arose from LW’s evidence at the second trial concerning the incident at the hospital. In examination-in-chief, the witness was asked whether the appellant said anything to her on this occasion. The evidence proceeded as follows:
QWas anything said to you by [the appellant] about your statement?
AYes.
QCan you tell the members of the jury what it was?
AHe said the same thing as what he did on the phone, if I didn’t drop my statement that I wouldn’t be able to see mum and [my sister] again.
She agreed in cross-examination that the name of the complainant PW was not mentioned in this connection. The sister referred to was a younger sister.
The witness was cross-examined at length about this aspect of her evidence. The cross-examination appeared to suggest that she may have been confused about what was said and that the appellant may have been referring to a guardianship hearing which was due to take place in the Youth Court. The witness was also cross-examined about what she had said to the police in relation to the hospital conversation. She agreed she had not made a specific allegation that the appellant had pressured her or threatened her.
However, the witness was adamant throughout her evidence that the appellant had given her to understand that if she did not retract her statement to the police, she would not be able to see her mother or sister again. Furthermore, there was no doubt in her mind that he was referring to the statement which she had given to the police in relation to the appellant’s alleged sexual misconduct towards PW.
In my view, the witness did not give any evidence at the second trial which undermined the effect of her evidence at the first trial. In any event, it is the evidence at the first trial which was primarily relevant for the purposes of sentencing. The cross-examination at the second trial was directed towards establishing that no attempt had been made during the hospital visit to dissuade LW from attending as a witness. It was open to the defence to put this to the witness, but the evidence cannot be used to undermine the factual basis upon which the jury convicted the appellant.
Finally, it was submitted that the sentence was manifestly excessive.
I have said that the appellant was sentenced to imprisonment for 18 months with a non-parole period of 12 months. The sentencing judge took into account the fact that the appellant had served three months and five days before being released on bail after his appeal was successful.
Counsel for the appellant stressed the fact that the appellant was 61 years of age and married with three dependent children. It was pointed out that he is likely to serve at least part of his sentence in protective custody and that he has been assaulted in prison. Reference was also made to the fact that he had endured two trials.
Although it was relevant for the sentencing judge to take these personal matters into account, he was also required to have regard to the seriousness of the offences. Offences of this nature affect both the witness and the administration of justice.
In R v Jenner & Masters (2000) 110 A Crim R 512 at [72] – [73], Doyle CJ said:
The offence of attempting to dissuade a witness is a serious one. As the sentencing Judge said, attempting to dissuade a witness from giving evidence strikes at the heart of the judicial system, by attempting to deprive a court of probative evidence. If a court is deprived of relevant probative evidence, the risk of a wrong decision clearly arises. The offence is serious not only because it involves the making of a threat to another person. It has the added seriousness that the purpose of the threat, and its possible consequence, is the making of a decision by a court which will be made on an incomplete appreciation of the relevant facts, and will possibly be erroneous for that reason. Such a decision can, in turn, weaken confidence in the system of justice. At the very least, some of the persons involved in the matter before the court are likely to know that a threatened witness has not given evidence and thus are likely to know that an unreliable decision has been made.
For those reasons, it is appropriate for the court to punish severely persons who commit this offence. In the end, the court must do so to protect the integrity of the system of justice.
Kirby P also stressed the seriousness of such conduct in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 450:
There is no doubt that it is a serious contempt to interfere with a witness by words or actions, in such a way as to diminish or question the privilege of the witness to give evidence to a court without fear or favour. The courts have repeatedly stressed that they will preserve the freedom and integrity of witnesses. They will not allow them to be intimidated from giving their evidence either before a trial, at the hearing or after the trial is concluded: see Attorney-General v Butterworth [1963] 1 QB 696; Chapman v Honig [1963] 2 QB 502 at 512; Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669; [1972] 1 All ER 58.
It follows, therefore, that the deterrent effect on the offender and others is a particularly relevant matter to take into account in sentencing for offences of this nature.
In the present case, aggravating factors included the position of influence which the appellant exercised over LW, her age, and the fact that the attempts to dissuade her were accompanied by a threat that she would be cut off from members of her family. Furthermore, they were made at a time when the appellant was under a court imposed obligation not to have any contact with the witness.
The appellant’s previous convictions include a conviction in 1990 for attempting to pervert the course of justice. The offence was not as serious as the present matters. However, this conviction and a series of other convictions disentitled the offender to the leniency which can be extended to persons of previous good character.
In my view, the sentence was not manifestly excessive.
I would dismiss the appeal.
GRAY J I would dismiss this appeal for the reasons given by Duggan J.