S v Tasmania
[2019] TASCCA 3
•14 March 2019
[2019] TASCCA 3
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: S v Tasmania [2019] TASCCA 3
PARTIES: S, J R
v
STATE OF TASMANIA
FILE NO: CCA 2645/2018
DELIVERED ON: 14 March 2019
DELIVERED AT: Hobart
HEARING DATE: 12 November 2018
JUDGMENT OF: Estcourt J, Geason J, Martin AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against conviction – Grounds for appeal – Unsafe and unsatisfactory verdict – Whether appellant was denied fair trial as a result of summing-up – Whether trial judge's redirection adequately addressed factual error in summing-up.
Aust Digest Criminal Law [3476]
Criminal Law – Appeal against sentence – Grounds for appeal – Sentence manifestly excessive or inadequate – Indecent assault – Aggravated sexual assault – Sentence of 3 years' imprisonment with a non-parole period of 18 months not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: M Doyle
Respondent: E Avery
Solicitors:
Appellant: Grant Tucker
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASCCA 3
Number of paragraphs: 53
Serial No 3/2019
File No CCA 2645/2018
J R S v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
GEASON J
MARTIN AJ
14 March 2019
Orders of the Court:
Appeal dismissed
Serial No 3/2019
File No CCA 2645/2018
J R S v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
14 March 2019
The appeal
On 12 September 2018 the appellant was found guilty by a jury of two counts of indecent assault and two counts of aggravated sexual assault. All of the charges related to indecent acts that he was alleged to have performed upon his 9-year-old daughter (the complainant), on two days in July 2016.
He appealed to this Court on the ground that the jury verdict was unsafe and unsatisfactory. He also appealed on the ground that the sentence imposed on him by Blow CJ of 3 years' imprisonment with a non-parole period of 18 months was manifestly excessive.
The written submissions did not address the ground of appeal that the verdict was unsafe and unsatisfactory, but rather they asserted that the appellant did not receive a fair trial at law as a result of learned trial judge's summing-up. While the notice of appeal contained a purported ground which read "such further other grounds for appeal on provision of the transcript", no new ground of appeal has been foreshadowed, much less made the subject of an application for leave to amend.
The Court heard the appellant's submissions notwithstanding that they did not address the grounds of appeal other than as to sentence, and notwithstanding that the stated ground that the verdict was unsafe and unsatisfactory was abandoned in oral submissions as a discrete ground.
The appeal was dismissed by the Court on the hearing on 14 March 2019 with reasons to be published at a later time. These are my reasons for joining in the order of the Court.
The law
In Tringrove v Tasmania [2014] TASCCA 7 at [5]-[6] Blow CJ and Pearce J, with whom Wood J agreed, set out the legal principles relevant to an appeal on the ground that the jury's verdict was unsafe and unsatisfactory as follows:
"Unsafe and unsatisfactory
[5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or 'unsafe and unreasonable'. The test ordinarily to be applied by an appellate court when considering whether a verdict is 'unsafe or unsatisfactory' was explained by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 442–443 as follows:
'It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...'.
[6] In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494–495:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462).'"
The law as to manifest excess in sentencing is well settled, and can be found concisely stated in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, per Pearce J at [8]-[9]. Excess must be plainly apparent.
Discussion of the evidence
The evidence of the complainant was, relevantly and essentially, that on a weekend late in July 2016 she and her brother were having a visit with the appellant, and for that purpose were staying at his residence. They had their own room at the house and they slept in bunk beds. The complainant said that on the first night they stayed, a Friday night, she was in bed in the top bunk waiting for the appellant to come in and say goodnight and turn the light out. She said that he came in but kissed her on the mouth and inserted his tongue into her mouth. Further, she said that he inserted his finger into her vagina. She gave evidence that on the second night, the Saturday night, the appellant did exactly the same thing.
The appellant gave evidence that on the Friday evening he had not entered the room at all, and that his current wife put the children to bed while his ex-wife, the complainant's mother, visited the toilet before she and the appellant's current wife left the house to stay at a female friend's house for the weekend. The appellant's current wife gave evidence to the same effect.
The complainant gave evidence that she arrived at the appellant's house late at night; that they all went inside; that she had McDonald's for dinner, which she ate on the couch with the appellant and her brother. She said that her mother, the female friend and the appellant's current wife were only there for a few minutes before they left. She said that she and her brother and the appellant watched a movie before she went to bed. She said that she put on a nightie and put herself to bed. She said that she lay down on the bed with the light on, waiting for the appellant to come in and say goodnight, after which the assaults occurred as outlined above. She said that she attempted to resist by pushing the appellant's hands and face away. As noted already, on the second night she said that exactly the same thing happened. She provided no additional detail.
As to that second night, the Saturday night, the appellant agreed that he went in to the bedroom to kiss the complainant goodnight but denied indecently assaulting her.
On 25 October 2016 the complainant told a school friend what she alleges occurred which was subsequently, and in essence, repeated on that day to a school teacher, the school deputy principal, the school principal and the complainant's mother, and on the next day to a police officer.
The jury might have been impressed with the evidence of these descriptions of the complainant as she made her complaint to several people on that day. The jury were of course clearly told by the trial judge that the complainant's delay between July and October 2016 in telling anybody about what she says happened did not necessarily indicate that any of the allegations that the appellant committed the crimes were false. His Honour said:
"Well, the experience of courts in Australian and in other countries is that people who are the victims of sexual assaults very commonly hesitate about complaining, or sometimes never complain at all. And so I have to give you a warning about this, and I warn you that an absence of complaint, or a delay in complaining, doesn't necessarily indicate that an allegation that a crime was committed was false."
The appellant asserts error in his written submissions that the learned trial judge "failed to provide direction in respect of complaint evidence to the effect that a person saying something on more than one occasion does not mean that what was said was necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions."
What his Honour said about the complainant's multiple complaints in his summing-up was this:
"There's evidence of what [the complainant] said to [her school friend], …, the deputy principal, the principal, the mother, and Detective Campbell. So [the complainant] spoke to six people that day about what happened to her or what she said happened to her and you're entitled to treat the evidence of what she said to each of those six people as evidence of the truth of what she said."
That is a correct direction in law. A similar direction was recounted with apparent approval by French CJ and Kiefel, Bell and Keane JJ in IMM v The Queen [2016] HCA 14, 257 CLR 300 at [6]. The appellant's counsel did not raise with the jury that repeating something on a number of occasions does not make it any more likely to be true, and he did not seek a direction from the learned trial judge to that effect. There was no obligation on his Honour to comment to the jury on the proposition.
The learned trial judge subsequently corrected his statement that the complainant spoke to six people on the same day. He said:
"I think I might have said that she spoke to six people in one day but Detective Campbell didn't come into the picture until a few days later, but she certainly spoke to five people on the day of the first disclosure and then to Detective Campbell later."
The appellant goes further in his written submissions, contending that "there was a need for direction in respect of repeated disclosures and need to reference that back to the factual material of the case and the defence's position in respect of the same." It is asserted that:
"Failure to do so unfairly created an impression that [the complainant's] evidence ought to be elevated in virtue of the complaint when a proper assessment of the case necessitated an examination of whether [the complainant's] evidence as to the charges was credible and reliable beyond reasonable doubt."
I am unable to accept that submission. The learned trial judge directed the jury in a balanced way, pointing out that they were entitled to use the complaint evidence but that the case was not simply one of the complainant's word against the appellant's because her evidence conflicted with that of other adults. His Honour said:
"Of course to a very large extent in this case it's [the complainant's] word against her father's. But it's certainly not as simple as that. For one thing there is conflicting evidence from various adults, and not just [the complainant], as to the putting to bed on the Friday night. [The complainant] says that her father put her to bed. Her mother says that she and her companions left. Therefore on her version of events [the appellant] is the only adult who could have put [the complainant] to bed whereas [the appellant] and his wife both say that it was his wife and [the complainant's] mother who put [the complainant] to bed. So this isn't just a case where it's the child's word against the accused man's word, it's a case where there are – in relation to who was where at bedtime on the Friday night, there's a conflict of evidence, and it's necessary for you to assess the reliability of [the complainant's] mother and [the appellant's] wife as well as the two main characters, two main individuals in this case. Apart from that, there's evidence from [the complainant] that she told [her school friend] what happened, and there's evidence of [the complainant] disclosing what happened to others back in October 2016." [Emphasis added.]
The appellant also contends that it was incumbent on the learned trial judge to ensure a fair trial that he instruct the jury as to the drawing of inferences from the evidence and relate that process to the appellant's defence. He argues that "a crucial example of this on the trial was the inference available on the evidence that [the complainant] may have adopted something [her school friend] said to her. In my view such a direction was not necessary as the jury must have been fully alive to the issue.
In her closing address to the jury, counsel for the Crown said:
"You saw her as she was being asked to relive them on Monday. I suggest she was an utterly believable witness who gave considered responses and a cogent account. Yes, she couldn't recall every single detail, but she was unshaken on the main issues, and her detail of where contact was made with her was there. You can be confident that this was not an idea planted in her head or adopted from a conversation with [her school friend]."
In his closing address, counsel for the appellant at trial said:
"My learned friend highlighted this to you yesterday; that she suggested that the evidence of [the complainant] as to [her school friend] telling her was after she made her own disclosure. With the greatest of respect that can't be correct. You might recall that …, the Assistant Principal, was asked about her notes and about a reference to that in her notes about '[her school friend] tells her things,' if you recall. That's how this arose, about [her school friend's] disclosure. That had to have happened prior to [the complainant's] disclosure despite the asking, 'Was it before or after', and [the complainant] says after. You might recall it was a last minute thing that [the complainant] come up with under questioning in re-examination. But under – if you look at it and look at what [the assistant principal] said in regards to her notes it had been raised at that time. So, it had to be beforehand.
My learned friend addressed you about whether or not [the complainant] had adopted a story. I submit to you that yes, she has; she has adopted a story."
And in his redirection, the learned trial judge mentioned the issue again when he said:
"So, as I understand it the evidence is that the mother, …, told or said to the Deputy Principal something to the effect that, '[the school friend] tells [the complainant] things', and then speculated that perhaps [the school friend] had said something that [the complainant] had copied. But, it didn't amount to evidence that [the school friend] had said something to [the complainant] that [the complainant] had copied."
The issue was a live one and the jury could not have failed to see it nor to have understood the implication if they found that the complainant had in fact copied something that her school friend told her.
The appellant gave a recorded interview to police in which he said that he had no memory of the particular occasion. This despite the fact that the weekend was the last one that the complainant had stayed with him at his house. However he gave evidence on the trial, recalling the events of each evening in detail. He explained that apparent anomaly by saying that when he was talking to the police officers his head "was going a thousand miles an hour" and he could not think straight or clearly. He said that he had since had over two years to think and to remember and to recall, and that was how he had managed to revive the memories that at the earlier time he could not recall.
The jury may not, having had the advantage of seeing and hearing the appellant give that explanation from the witness box, have been at all impressed with it. This notwithstanding that the learned trial judge directed the jury in the following terms:
"If you come to the conclusion that anything that [the appellant] said to the police was incorrect or was a lie, well you may use an incorrect answer or a dishonest answer in evaluating the overall reliability of the answers that he gave to the police. But, you shouldn't jump to the conclusion that an incorrect or dishonest answer is some sort of indication of guilt. It's a matter for you what importance you attach to particular answers, but you mustn't treat an incorrect answer as somehow indicating guilt. There are all sorts of reasons why people give incorrect answers, and you shouldn't speculate as to why a particular answer was given if you believe it to be incorrect."
The jury might also, when evaluating the appellant's explanation for his recovered memory, have been impressed by the fact that the complainant had identified the occasion of the offending as the very last occasion on which she stayed unsupervised with the appellant. The jury might have thought that the appellant would have had no trouble recalling that very last occasion and the reason why it was the last. The jury might also have thought that were the complainant lying she might have suggested to police that such conduct had occurred on some other earlier occasion or occasions which were not so memorable.
As pointed out by the learned trial judge, there was some evidence of the complainant's demeanour when she was collected on the Sunday by her mother. Her mother told the jury that when she collected the complainant "she was very quiet". His Honour said:
"Now, it's like any other piece of evidence, it's a matter for you how much weight you attach to it, you might think that it has no significance, you might think to some small degree it tends to support the allegation that there had been some indecent acts that had occurred during that weekend visit. It's a matter for you."
There was an issue on the trial as to the complainant's attitude towards her father after the alleged offending. Counsel for the appellant in his closing address reminded the jury of the evidence about a day visit by the complainant and her brother to their father in September 2016, and the evidence to the effect that there was no sign of anything unusual having happened on the previous visit. Counsel reminded the jury of the evidence of the appellant that the complainant had wanted to stay the night with him when that visit came to an end after an evening meal at a hotel. There was evidence from the complainant's mother that it was the complainant's brother who had wanted to stay but she had earlier said the opposite, and there was a suggestion that she was untruthful in giving her altered version in order to support her daughter. However, the complainant herself in cross-examination had said that it was not her, it was her brother who had wanted to stay, and the jury were entitled to accept her evidence as to that.
There was also an issue as to whether the top bunk on which the complainant was sleeping was too high for the appellant to have been able to have committed the offences as alleged. The appellant gave evidence that the top bunk was too high compared to his own height to have enabled him to have assaulted the complainant in the way alleged, and that it was necessary for her to lean over the edge of the bunk in order for him to kiss her goodnight. His current wife said that the top bunk was at the height of her face. The complainant's mother on the other hand said in evidence "Oh, it was one of those unusual bunks; it was a very low bunk."
Counsel for the appellant in his closing address said:
"You may recall, and my learned friend had made reference to it, about the height of the bunk bed. You have evidence that it was at the height of [the current wife's face] face. You have evidence or know [sic] evidence from [the complainant] as to [the appellant] standing on anything to reach up onto the bunk. We [sic] consider that height of that bunk and the mechanisms of being able to reach and do what's alleged against him. Is it possible? [The complainant] was asked, 'Did [her father] stand up on something?' 'No, he didn't.' Difficult if young [brother] is on the bottom bunk; he would have had to nearly stand on the mattress to get up, but [the complainant] says it didn't occur. We know the height, and your own experiences. [The complainant's mother] came in here and said, 'Oh, it was one of those unusual bunks; it was a very low bunk,' because his [sic] aspect had been highlighted. A hole in the story about the height of the bunk and the ability to achieve – [the appellant] to achieve what is accused against him, particularly the touching of the private parts and the insertion of a finger.
It became an issue if you might recall that [the complainant's mother] tried to overcome by suggesting it was a small – an old bunk and a small one. Well, you heard from [the appellant's current wife] about making the bed. She can get up and crawl on the bottom bunk to make it. There must be a gap, you can't accept what [the complainant's mother] is saying about the height of this bunk but she has tried to address that issue because it clearly is an issue that you need to consider."
However, counsel for the State had reminded the jury that they did not really have any specific evidence about the height of the appellant, they did not have a picture of the bunk beds, and they did not know the height of the bunks exactly. She suggested that the jurors could use their own common experience and knowledge of bunk beds to conclude that most adults can access them. That was of course open to the jury. It was also open to the jury to conclude that the appellant's current wife was not an impartial witness.
Counsel for the appellant at trial also pointed out in his closing that throughout her 2016 recorded interview the complainant referred to her father as "daddy", whereas during the trial when she was asked what did she call her father, she said she called him by his Christian name. The jury would have been entitled to think that such a small inconsistency was insufficient for them to have cause to doubt the complainant's veracity or reliability.
Counsel argued that the complainant's mother was unreliable. He argued that she was setting out to support her daughter in sustaining the allegation that the appellant had committed the crimes with which he was charged. He argued that her evidence that the female friend would have left her baby in the car on a July night while the rest of the adults went into the appellant's house when they arrived was unbelievable. That was a valid point for counsel to make, but even if the jury had reservations about the impartiality of the evidence of the complainant's mother, there was still evidence, including the complaint evidence, sufficient in my view to satisfy them of the appellant's guilt beyond reasonable doubt.
There was a suggestion made to the jury by counsel for the appellant in closing on two occasions that perhaps the school friend of the complainant had told her that acts similar to those with which the appellant was charged had been performed on her, before the complainant told her friend that the alleged assaults had occurred, and that the complainant was in essence "suggestible" and as a result made a false complaint about her father. However after an exchange between the learned trial judge and the appellant's counsel at trial during the judge's summing-up in which his Honour had directed the jury that the evidence was that her friend had not told the complainant that exactly the same had happened to her before the complainant made her disclosure to her friend, his Honour re-directed the jury as follows:
"Ladies and gentlemen, Mr Wright has drawn my attention to two passages in the evidence that I should have told you about, and failed to. The first concerns the question of when [the school friend] said something to [the complainant] to the effect that she, [the school friend], had been inappropriately touched. And the evidence is that this was said prior to [the school teacher] saying anything to the children. At page 25 Mr Wright asked [the complainant]:
Did [the school friend] ever tell you - before you told the teachers about this matter, did she ever tell you that she'd been inappropriately touched?……She did tell me that it happened to her, yes.
And she did that prior to your talking to [the school teacher], is that right; before that?……Yeah.
Okay, and she's told you, did she [the school friend], that the same thing that you now describe that [your father] did that the same thing happened to her; that's right, isn't it?……Yes.
What that still didn't say was who spoke up first about indecent touching; [the school friend] or [the complainant]. That was not asked about."
The appellant's submission about this is that when examining what was said, how it was said and when related to the case concepts of the Crown and the appellant at trial, his Honour's redirection failed to adequately meet or address the factual error in the summing-up. The appellant in his written submissions contends:
"Crucially, the factual error and discussion about its impact on the assessment of the evidence was not ever balanced by His Honour in a manner that was necessary to ensure a fair trial. Specifically, the Appellant notes His Honour in correcting his factual error did so only by quoting passages and failed completely to reference it to the Defence argument in respect of the case."
I am unable to accept that submission. Having considered the closing addresses of both counsel and the whole of the learned trial judge's summing-up, the re-direction appears to me to be adequate. At the conclusion of his Honour's clarification as set out above, he said "So, I think I've now covered all the relevant evidence in relation to those points." He was not asked by defence counsel for any further re-direction (Chamberlain v The Queen (1983) 72 FLR 1 at [13], affirmed in Chamberlain v The Queen (No 2) (1984) 153 CLR 521). Indeed, when the matter was raised by counsel for the appellant at trial in the absence of the jury, his Honour in agreeing to redirect them said "Yes, all right. Well, I'll take them to that point. It still of course doesn't say who said it first, does it?" To which counsel responded "No, it doesn't, your Honour."
Another specific criticism raised by the appellant is the asserted failure of the learned trial judge to explain that the appellant denied the alleged conduct when discussing the incident with the complainant's mother. However, as counsel for the Crown, Ms Avery, points out in her written submissions, his Honour was not obliged to canvas every piece of evidence, and he instructed the jury that a failure on his part to mention a piece of evidence did not mean that it was unimportant for the purposes of consideration by the jury.
The gravamen of the appellant's defence as put to the jury by his counsel in closing was that the crimes that the appellant was accused of committing on the Friday night could not have happened because he did not put the children to bed that night. He argued that the jury should accept the appellant's evidence and his current wife's evidence that it was her and the complainant's mother who put the children to bed on that Friday night, and that the appellant did not go into the room at all.
On this central issue the learned trial judge directed the jury in the terms of the passage set out above at [16].
The evidence of the appellant's current wife as to putting the children to bed on the Friday night was in conflict with the complainant's evidence, but it was a matter for the jury to resolve. That they accepted the complainant's evidence was a course they were perfectly entitled to take. Moreover, while the evidence of the appellant's wife may have opened up an inconsistency, it did not establish that the complainant was mistaken or lying when she said that after they were in bed her father came in and assaulted her. The appellant could have come in after they were in bed. It was his word as against the complainant that he did not. And his current wife's evidence does not of course assist the appellant at all as to the Saturday night.
A specific criticism made in the appellant's written submissions is that the assessment of the learned trial judge's summing-up, "including for example page 38 line 5 of the transcript, makes an inescapable impression that His Honour has a view about the veracity of the evidence". It is submitted that "juries do look to judicial officers for guidance as to assessment of the case notwithstanding the specific direction that the factual determinations are a matter for the jury alone". At the cited transcript reference his Honour said this:
"Remember the principal said something about leading questions and I clarified what she meant by that. A leading question is a question that puts words into a person's mouth. Lawyers generally aren't allowed to ask them when they're questioning their own witnesses. But the important thing in – if you play the interview again, you might like to notice the extent to which the detective didn't suggest – ask questions that didn't give [the complainant] answers but let [the complainant] tell what happened in her own words. That's something you may like to consider.
I reject that submission as untenable. Neither the referenced passage nor anything else contended for by the appellant suggests, as far as I can observe on reading the learned trial judge's charge, any partiality or the expression of any pre-conceived or unfair view of the evidence to the jury in any inappropriate fashion. It is to be noted that his Honour told the jury:
"If I reveal what I think about the facts or if you think I've given some indication of a personal view in relation to any point, then it's up to you to decide independently, make up your own minds independently as to what you think about the facts. If you think that I – if I've said that I have a particular view as to a particular point or if you think I seem to have a particular view, it's your duty as the judges of the facts to reach your own independent conclusions about any such points."
Conclusion on the appeal against conviction
In this case where so much turns on the credit and demeanour of the complainant in her evidence-in-chief and in cross-examination, and on the impression the jury formed of the appellant in his evidence denying the offending, the advantage enjoyed by the jury is inestimable.
In my view, to adapt the language of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (above), the jury's advantage in seeing and hearing the evidence is capable of resolving any doubt experienced by me as a member of this Court. That is to say, any sense that I might have that the evidence lacks credibility can be attributed to reasons which may be explained by the manner in which it was given. In my view this Court may conclude that no miscarriage of justice occurred. I am wholly unable to say the jury, acting reasonably, must of necessity have entertained a reasonable doubt as to the guilt of the accused.
I am also of the view for the reasons that I have given that there was nothing said or omitted to be said by the learned trial judge in his summing-up to the jury that denied the appellant a fair trial. The appellant's submissions to the contrary are altogether without substance. I accept the submission of counsel for the Crown that upon considering the totality of the summing-up it cannot be said to unfairly lack balance and there was no miscarriage of justice. See Lee v Tasmania [2006] TASSC 92 at [39].
The appeal against sentence
I do not regard the sentence imposed as unreasonable or plainly unjust so as to give rise to the inference that there has been an error in the exercise of the learned sentencing judge's discretion. I can find no apparent error in the sentence passed by the learned sentencing judge, either as to the head sentence or the non-parole period.
In sentencing the appellant the learned sentencing judge commented:
"For sentencing purposes I have been provided with a victim impact statement and a report by a school psychologist. Not surprisingly, the child has experienced a range of psychological symptoms. I do not think I need to list them. She is receiving counselling from a private child psychologist, at some cost to her mother and stepfather. As a result of these crimes coming to light in October 2016, all contact ceased between [the appellant] and his two children – the complainant and a sibling. It seems likely that both children will grow up with little or no further contact with their father, and that is a very sad thing.
[The appellant] is in his early 30s. He has convictions only for minor driving offences. He has a good work record. However some common mitigating factors are absent in this case. He did not plead guilty. I would be imposing a much shorter prison sentence if he had pleaded guilty and spared his daughter and his former partner the ordeal of giving evidence at a trial. Furthermore, he has shown absolutely no sign of remorse. He abused the trust that was placed in him by his daughter and his daughter's mother. He took advantage of the opportunity to sexually abuse his daughter on two occasions when no other adults were present over a weekend. I need to impose a sentence that reflects the seriousness of his outrageous conduct, and which should deter other people from committing similar crimes. However I will impose the shortest possible non-parole period because of [the appellant's] prior good record."
In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly and comprehensively, if I may once again say so with respect, summarised the relevant principles at [8] as follows:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."
Child sex offences have enormous potential to cause physical and psychological harm. Conduct of this nature has profound and deleterious physical and psychological effects upon victims for many years, if not the whole of their lives. The consequences of an offence, including its effect on a victim, are important considerations in the sentencing process, and the severity of the sentence may be increased because of them. General deterrence, punishment, vindication of the victim and community protection and denunciation in particular are the primary sentencing considerations (CJP v Tasmania [2015] TASCCA 9; DPP v Harrington [2017] TASCCA 4).
I am not able to say that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion.
Disposition
For the foregoing reasons the Court dismissed the appeal on 14 March 2019.
File No CCA 2645/2018
J R S v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
14 March 2019
For the reasons given by Estcourt J I joined in the order dismissing the appeal. There is nothing I wish to add.
File No CCA 2645/2018
J R S v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ
14 March 2019
I agreed that the appeals against conviction and sentence be dismissed and I agree with the reasons of Estcourt J.
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