Stephenson v The Queen
[2001] WASCA 98
•28 MARCH 2001
STEPHENSON -v- THE QUEEN [2001] WASCA 98
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 98 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:204/1999 | 8 MARCH 2001 | |
| Coram: | MALCOLM CJ WALLWORK J ANDERSON J | 28/03/01 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal granted, appeal allowed and total sentence reduced to five years | ||
| PDF Version |
| Parties: | ANDREW PETER STEPHENSON THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Sexual penetration of the vagina by the tongue with a child under the age of 13 years Indecent dealing with a child under the age of 13 years Breach of trust Total cumulative sentence of seven years manifestly excessive Total cumulative sentence reduced to five years Eligibility for parole |
Legislation: | Nil |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 Malone v The Queen, unreported; CCA SCt of WA; Library No 8180; 6 April 1990 Neil v The Queen (1982) 149 CLR 305 Podirsky (1989) 43 A Crim R 404 Podirsky v The Queen (1990) 3 WAR 128 Price v The Queen (1988) 33 A Crim R 359 R v Fancourt, unreported; CCA SCt of WA; Library No 8319; 18 June 1990 R v Ginder (1987) 23 A Crim R 1 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994 Squance v The Queen, unreported; CCA SCt of WA; Library No 8276; 31 May 1990 Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992 Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993 Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990 Trescuri v The Queen [1999] WASCA 172 Woods v The Queen (1995) 14 WAR 341 House v The King (1936) 55 CLR 499 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : STEPHENSON -v- THE QUEEN [2001] WASCA 98 CORAM : MALCOLM CJ
- WALLWORK J
ANDERSON J
- CCA 146 of 2000
CCA 277 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Sexual penetration of the vagina by the tongue with a child under the age of 13 years - Indecent dealing with a child under the age of 13 years - Breach of trust - Total cumulative sentence of seven years manifestly excessive - Total cumulative sentence reduced to five years - Eligibility for parole
Legislation:
Nil
(Page 2)
Result:
Application for leave to appeal granted, appeal allowed and total sentence reduced to five years
Representation:
Counsel:
Applicant : In person
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
Malone v The Queen, unreported; CCA SCt of WA; Library No 8180; 6 April 1990
Neil v The Queen (1982) 149 CLR 305
Podirsky (1989) 43 A Crim R 404
Podirsky v The Queen (1990) 3 WAR 128
Price v The Queen (1988) 33 A Crim R 359
R v Fancourt, unreported; CCA SCt of WA; Library No 8319; 18 June 1990
R v Ginder (1987) 23 A Crim R 1
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994
Squance v The Queen, unreported; CCA SCt of WA; Library No 8276; 31 May 1990
Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992
Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993
Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1995) 14 WAR 341
(Page 3)
Case(s) also cited:
House v The King (1936) 55 CLR 499
(Page 4)
1 MALCOLM CJ: This was an application for leave to appeal against conviction and an application for leave to appeal against sentence.
2 On 10 September 1999 the applicant was convicted after a trial by jury of three counts on an indictment of sexually penetrating the complainant, a child under the age of 13 years. The offences occurred between 1 July 1997 and 28 February 1998 and were contrary to s 320(2) of the Criminal Code as it then stood. On 16 September 1999 the applicant was also convicted after a trial by jury of one count of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code. On the same day the applicant was sentenced to imprisonment for six years for each of the counts of sexual penetration and to imprisonment for 18 months in respect of the indecent dealing offence. The learned Judge directed that the three sentences of six years be served concurrently with each other, but directed that the sentence of 18 months be cumulative upon the other sentences, making a total sentence of imprisonment for seven years and six months commencing on 10 September 1999. An order was made that the applicant be eligible for parole in relation to each of the sentences imposed.
3 The applicant seeks leave to appeal against all four convictions and also seeks leave to appeal against the sentences imposed.
Application for leave to appeal against convictions
4 The applicant was unrepresented. The applications for leave to appeal against conviction are made on a single ground prepared by the applicant in person. The essence of the ground is that the police officers who gave evidence of a video-recorded interview of the applicant gave false evidence concerning the circumstances leading up to the applicant participating in the interview. There are some subsidiary contentions which I propose to deal with in due course.
Application in respect of convictions involving E
5 The Crown case against the applicant was based almost entirely on the admissions made by the applicant in the video record of interview. The essence of the applicant's ground of appeal is that the police officers gave false evidence concerning what happened prior to the video-recorded interview. The applicant told the Court that, in a conversation prior to the conduct of the interview, the police officers and, in particular, Sergeant Pagels, explained what he had been told about the alleged offences, that he understood that the applicant was going to plead guilty and that what
(Page 5)
- the applicant was about to say was merely a formality. He said one or two things and then the police officers mentioned the statements obtained from the complainants. He maintained that the police officers said that if he did not co-operate his partner ("Mrs Odthon") would also be charged and bail set "well above what I could cope with".
6 The applicant maintained that it was apparent from the video that Sergeant Pagels had in front of him a list of the six matters the subject of the subsequent charges and what the applicant had said about them in the conversation prior to the video interview taking place. Having observed the video, I consider that the notes which Sergeant Pagels had before him are consistent with notes taken by the Sergeant from the statements of the complainants which the police then had in their possession.
7 In order to put the applicant's contentions in support of the ground in context, it is necessary to understand the way in which the case was put to the jury by the Crown at each of the trials.
8 In the first trial, the Crown case was that in about 1996 the applicant formed a relationship with a woman originally from Thailand, a Mrs Odthon. Mrs Odthon had two children, a boy named T, and a daughter named E. E was aged about 5 when the events the subject of the counts upon which the applicant was convicted at the first trial were alleged to have taken place. E was aged 7 at the time of the trial. E was not called to give evidence. The Crown case against the applicant was founded upon a video-recorded interview conducted by police officers on 23 March 1998, supplemented by the evidence of Ms Vermeulen, an officer of the Department of Family and Children's Services.
9 The applicant was acquitted of the first two counts in the indictment but convicted on counts 3, 4 and 5 to which I have already referred. Each of them alleged that the applicant sexually penetrated E. The evidence relied upon was by way of admissions made by the applicant in the video interview with the police. At the time the applicant was living with Mrs Odthon and the children. Each of the three counts involved an allegation of sexual penetration of the vagina of E by the applicant with his tongue. In other words, each involved an act of cunnilingus. As to count 1, the applicant told the police that, in the period between 1 July 1997 and 31 December 1997, at the house occupied by Mrs Odthon at Tuart Hill, when she and her son were out, E had a shower. She came out of the shower wrapped in a towel, the applicant dried her off and then laid her down on the lounge, knelt between her legs and licked her on the
(Page 6)
- vagina. He described what he did as a "French Kiss" and admitted that he probably had an erection at the time.
10 As to count 4, the Crown case was that, during the video interview, the applicant told the police officers that a few weeks before Christmas 1997, Mrs Odthon, E and T moved into the applicant's house at Lathlain. He told police that about three weeks after Christmas he was in E's bedroom while she was getting changed. While she was naked he talked with her, laid her down on the bed so she had one leg on the bed and one leg on the floor. He then sat between her legs on the floor and licked her on the vagina for about five minutes.
11 Count 5 involved an offence which was said to have occurred in or about January 1998. The applicant told police that one Saturday morning in or about January 1998 he was lying in bed in the morning with an erection when E came in to wake him up to go to work. E got onto the applicant's bed pretending to be a cat, which was something she liked to do. She walked around on the bed and the applicant said he scratched her on the back and behind the ears. At the time E was wearing a T-shirt belonging to the applicant. The applicant said that while she was on all fours, arching her back, sticking her bottom up in the air like a cat, the applicant kissed her on the vagina, ran his tongue down and licked her on the vagina for "a couple of minutes".
12 Ms Vermeulen, a Senior Social Worker with the Protection of Children Team, Family and Children's Services, gave evidence that, as a result of information received, she had a conversation with E at her school on 25 February 1998. Mrs Odthon came to the school to collect E. Ms Vermeulen spoke to Mrs Odthon about sexual abuse by the applicant of E. Mrs Odthon said she was aware of it, but it was not a serious problem and the applicant had made a big promise that he would not abuse the children any more. Ms Vermeulen, Mrs Odthon and the children then went to the Department. That night, the children were placed into foster care as a protective measure. This was done with the consent of Mrs Odthon.
13 In cross-examination Ms Vermeulen said that the original complaint had been made by a police officer, Constable Paul Furness, who had contacted the Department by telephone. The Police Child Abuse Unit had suggested to him that the matter should be referred to the Department. It was against that background that Ms Vermeulen decided to make contact with E at her school. She went to the school shortly after 2.00 pm on the
(Page 7)
- same day. Ms Vermeulen and another officer from the Department had approached Mrs Odthon who was waiting outside E's classroom.
14 In cross-examining Ms Vermeulen, counsel for the applicant brought out the fact that there was a conversation with Mrs Odthon at the Department to the following effect:
"What happened was we discussed the options. Mrs Odthon - you know, she acknowledged that the sexual abuse had occurred, that she knew about it, that she didn't think it was serious, and she wanted - she reckons that [the applicant] - we weren't fair, [the applicant] deserved another chance, we needed to give him another chance, and it was clearly explained to her that that was not the option that was available, we did not believe the children were safe in that environment, so the options were explained to her. Mrs Odthon eventually - I mean, she was unhappy about the children being placed in care but agreed to it and her options were a care and protection application or a consented agreement. I did leave the room twice, once to make an enquiry about a foster placement for the children, and another time to organise the paperwork for Mrs Odthon to sign the consent form, and in that time she was left with Robbie Bissett."
- The latter was another departmental officer. Ms Vermeulen said that they had at that stage not told Mrs Odthon what the allegations were because, at first, Mrs Odthon said that the applicant "hasn't done anything", but later she said that she was aware of what had been happening because E had told her.
15 The following day, 26 February 1998, Ms Vermeulen received a telephone call from the applicant. Ms Vermeulen's evidence was that he said that he was calling about T and E at the request of Mrs Odthon. He said that she had asked him to contact her as they were concerned about the children being in foster care and he wanted them to come home. Ms Vermeulen told him that the Department did not believe the children were safe in the home while Mrs Odthon was residing in the same residence as the applicant. The applicant said that he had fixed the problem, that nothing had happened for six weeks, that he had discussed the matter with Mrs Odthon and the situation had been resolved. He admitted to sexually abusing E, but said that it had stopped and that he had done nothing for six weeks. He also said that Mrs Odthon was organising alternative housing for herself and the children and repeated several times that the situation had changed. The applicant asked
(Page 8)
- whether, if he attended Safe Care, he could return to his live-in relationship with Mrs Odthon. Ms Vermeulen told the applicant he needed to liaise with Safe Care for more information. He told her he would ring Safe Care that day and make an appointment. Ms Vermeulen had no further contact with the applicant.
16 Sergeant Pagels was a sergeant attached to the Mirrabooka Crime Support Unit. As at 23 March 1998 he was a Detective attached to the Child Abuse Unit. On that day he was conducting enquiries into a complaint which had been received from T. As a result of these enquiries he contacted the applicant and requested that he attend the Child Abuse Office. At about 10.30 am on the same day the applicant attended the Office. Sergeant Pagels, accompanied by Detective Senior Constable Barry O'Connor, conducted a video record of interview with the applicant. The videotape was then played to the jury during which the applicant made admissions about the offences. The videotape was played to the jury without objection. Sergeant Pagels was cross-examined. The cross-examination established that the Child Abuse Unit had received a complaint from Constable Paul Furness on 23 February 1998. Sergeant Pagels was then stationed in Kalgoorlie. He joined the Unit early in March and the file was passed to him. There was a note on the file that Constable Furness had contacted the Department of Family and Children's Services regarding the matter. He was not aware that Constable Furness had been in a sexual relationship with Mrs Odthon, although that had been alleged by the applicant.
17 The file contained notes made by the Department, including a summary of the allegations against the applicant in relation to E, as well as details of admissions made to the Department by the applicant. Sergeant Pagels said that he had the file in front of him during the interview. He also took notes. The interview was based on the material obtained from the complainants, but he left it up to the applicant to recall what had happened. The applicant had come in voluntarily for the interview, following a telephone call from the Sergeant. Sergeant Pagels said that he had introduced himself and asked the applicant to come in and have a discussion regarding some matters concerning the children. The applicant came in voluntarily. The only time the applicant was alone with the Sergeant was when he originally arrived at the office. He was escorted to the interview room by the Sergeant and offered a cup of coffee. Prior to the interview he told the applicant that he did not have to participate in the interview, it was entirely the applicant's decision whether or not to participate.
(Page 9)
18 Sergeant Pagels denied that he had told the applicant that if he did not participate in the interview the file would be returned to the Department which would mean that he would have "very little chance of getting back with the family". He also denied suggesting that if the applicant made admissions he would be able to get back with the family at some stage.
19 It was put to Sergeant Pagels that this conversation had taken place before Detective O'Connor came into the room. This was denied. It was also put to the Sergeant that when Detective O'Connor came in they "ran through" the allegations before the video interview was started. This was denied.
20 Detective O'Connor was, at the time of trial, a Detective Senior Constable attached to the Child Abuse Unit. He joined the Unit on 23 March 1998. On that day, the witness was working with Sergeant Pagels. They conducted a video record of interview. Detective O'Connor said that there may have been some brief preliminary conversation with the applicant, prior to the interview, in which it was explained to the applicant where the interview room was and how the video interview would take place. After the interview there might have been some conversation, but it would have been purely obtaining information such as for an antecedent report. After the interview the applicant was conveyed to the East Perth Lockup.
21 Significantly, the matters about which the applicant now complains and the allegations which he now makes were not put to either of the police officers in cross-examination. It was not suggested to the police officers that their evidence was false. In the submissions prepared for the applicant by the Unrepresented Criminal Appellants Scheme, the applicant says:
"3. The police record of interview should not have been admitted as evidence as it was given under duress. In the transcript of court proceedings, both police officers denied the conversations with myself that occurred prior to the video record of interview. The full record of police interview reveals that a conversation did in fact take place prior to the interview commencing.
3.1 During these conversations the police threatened to charge the mother of the children with prostituting them and said that unless I made the
(Page 10)
- record of interview and admitted the offences I would never see the children again.
- 3.2 The police also informed me that if I did not participate in the video record of interview and admit certain things, my bail would be set beyond my means and I would remain in custody.
3.3 The presiding Judge informed the jury that the video evidence was crucial to the prosecution. This indicates that its prejudicial value was high and therefore its exclusion was necessary in order for me to have a fair trial."
22 The admissibility of the video record of interview was not an issue at the trial. It was not suggested to either of the police officers in cross-examination that they made any threat of the kind referred to in par 3.1 or par 3.2. As to par 3.3, the learned Judge directed the jury that the video interview was "a very important part of the Crown case". Her Honour also directed the jury that in the interview:
"… the accused man appears to be fully admitting these offences, saying what he did. Now that is a matter for your assessment.
Under oath he has sat in the court and he has told you that he actually lied to police that day, that he believed he had to lie and he had to make those admissions that admit these offences or he would never get the children back, so you will have to consider that very carefully in your deliberations, and I will speak to you more about that later.
In considering the videotape you are allowed to rely on any admissions that you find the accused made and you can take into account anything he may have said in his favour. It depends on your assessment of what he said and whether he was being truthful with police. That's a matter for you. The reason you are permitted to hear that kind of evidence, that is an interview of the accused, is that the law recognises that usually a person will not admit something which is against his interests unless it's true. In this case the accused said the usual rule does not apply, that he has made false admissions, so that's the matter that you are going to have to consider."
(Page 11)
23 It is apparent from the verdicts of the jury in relation to counts 3, 4 and 5 that the jury rejected the evidence of the applicant and accepted the evidence of the police officers and Ms Vermeulen. One matter which was likely to reflect on his credibility was his evidence that Ms Vermeulen only spoke to him concerning allegations about T and there was no mention of anything about E. This was an apparent attempt to discredit the video evidence about E. This made it necessary for evidence to be given that all of the evidence concerning T had been edited out of the version of the video played to the jury. It also made it necessary for the trial Judge to give the following directions to the jury:
"Now there is an issue I need to warn you about. You heard the accused say yesterday that when he spoke to Ms Vermeulen it was not about the child called [E]. He said in his evidence that all she spoke about was allegations in relation to the boy [T]. Then today the accused admitted that all of the parts that were edited from the videotape related to the boy [T]. Now ladies and gentlemen, I must warn you that you must put anything to do with [T] right outside of your deliberations. It's entirely irrelevant to the issues you need to consider.
You are only considering the question in relation to the child [E] and it was never intended that you hear anything about [T] in this trial. The accused, for some reason, against his own interests, has said that from the witness box and it has thrown something into the trial that you weren't meant to hear. In fairness to the Crown the evidence has now come in that it was the references to [T] that caused the videotape to be interviewed [sic edited] in an effort not to put something irrelevant before you. You have heard that. There is no way we can undo that now but you must completely put that aside and not allow that to prejudice you in any way against the accused man.
That brings us to the edited video itself and I know you were concerned about that because it's clear when you watch it that it jumps, there are gaps in it. You now have evidence, direct evidence, that the only reason it jumped was that there were questions about [T] coming in, so you must not in any way speculate that the police were saying or doing anything else during those periods. The only evidence you have is that and you should accept it as it has come from the accused and he was present at the interview."
(Page 12)
24 The applicant said that at the time of trial he had met Mrs Odthon about four years previously. He was then 29 or 30 years old. When the relationship started, Mrs Odthon's children were T aged 6 and E aged 3. At first, the applicant would stay with Mrs Odthon, or she would occasionally stay with him, a couple of days a week. Most of the time the children would stay with Mrs Odthon. As the relationship developed, the applicant spent more time in the household with Mrs Odthon and the children.
25 By the end of 1997 the applicant was spending most of the time with Mrs Odthon and the children. They were together five or six days a week. After about 18 months he considered himself E's father. T remembered his own father and would not call the applicant "Dad". By contrast, E called him "Daddy" after four or five months. He denied that he ever did anything sexually inappropriate with E. He said he had never touched her sexually.
26 The applicant said that by 25 February 1998 he was living in a relationship with Mrs Odthon. That evening, when he came home from work Mrs Odthon was crying and saying she was sorry. Eventually, she told him that the children had been taken from her. She told him that Constable Furness had done something and the children had been taken by the Department of Family and Children's Services. She gave him some cards, including a business card of Ms Vermeulen with instructions to ring her if the family wanted to stay as a unit and a pamphlet for Safe Care. Mrs Odthon recounted what had happened at the school and at the Department that day. In particular, she said that Ms Vermeulen told her that some sexual impropriety had happened with E and she had also received some information that something had happened with T. He was told they were in foster care.
27 As has been seen the applicant gave evidence that when he spoke to Ms Vermeulen the next day she said nothing about sexual misconduct which was alleged to have happened with E. Only T was mentioned. As a result of his conversation with Ms Vermeulen he thought that if he went to the Safe Care programme, everything would sort itself out. The verdicts of the jury indicate a rejection of his evidence and acceptance of the evidence of Ms Vermeulen.
28 When the applicant went to the police station he said he had a conversation with Sergeant Pagels for about 10 minutes. He said that on the morning of the video record of interview, he had been contacted by the then Detective Pagels. He went in voluntarily to speak to him. He
(Page 13)
- was not sure whether he was going to be questioned in relation to allegations of sexual offending against E. His evidence was that when he got to the Child Abuse Unit at about 10.00 o'clock, Sergeant Pagels introduced himself and they walked through into a cubicle area with a round table and chairs. They spoke for about 10 minutes concerning allegations. Sergeant Pagels said to him after he had walked in the door that he understood the interview to be a formality because they understood the applicant was pleading guilty. Sergeant Pagels said that if he did not give an admission, Family and Children's Services would stop him from seeing the children because the file would still be open. He was told there would be no restraint on time and he could be kept from the children until they had grown up. He said that Sergeants Pagels and another police officer spoke about T. Then Sergeant Pagels brought up E. The applicant said that she would come in for hugs and kisses and that sort of thing. He said there was "absolutely no sexual innuendo at all". Sergeant Pagels told the applicant that E had said it had happened five or six times over five or six months. He described E coming into the bedroom some six months previously as just:
"… one of the things that [E] or [T] would do. The second occasion I explained - I don't know what I said - that I had kissed her on the backside or something like that. Then he said, 'Hang on. The little girl actually said you licked her,' you know, and he said, 'We're not going any further you know, unless you say you've licked her'. So then I said, 'Okay, well then I've licked her,' and he said, 'Okay. Where were you? What were you doing?' and then went through building up the scenario of what happened. I didn't have any point of reference you know."
30 His evidence was that what he had said happened in the video record of interview was not true. He said that before the interview was recorded Sergeant Pagels, the other officer and himself went through it all and he
(Page 14)
- was told what he had to do. During the record of interview he tried to remember what he had said earlier because whenever there was a mistake he would be corrected.
31 The evidence so given is substantially inconsistent with the way in which the video-recorded interview proceeded. In relation to the counts on which the applicant was convicted, the admissions which were made came out in the course of an interview in which the applicant described a number of incidents. For example, asked when the first incident happened, he responded that it was some six months ago at Mrs Odthon's house. He went on to describe the incident the subject of count 3 which occurred after the complainant had a shower. He described how she came into the loungeroom with just a towel wrapped around her. The applicant dried her off, wrapped the towel around her and licked her vagina for about five minutes. This happened three or four months prior to the date of the interview on 23 March 1998. The account given in relation to counts 4 and 5 was again spontaneous and not the result of leading questions. In my opinion, there is nothing in the context of the interview which suggests that there was any prior discussion between the participants about the matters the subject of the charges subsequently preferred which had taken place before the interview was recorded. There is nothing to support the contentions put forward by the applicant in support of his appeal. There is nothing in the video record of interview which suggests any prior conversations of the kind alleged by the applicant. There is nothing in the record of interview which would justify the applicant's contention that the evidence of the interview should have been excluded as having been given under duress. That was not an issue raised by the defence at the trial.
32 The applicant's grounds of appeal also stated that:
"The presiding Judge tells the jury that this video evidence is crucial to the prosecution without complainants' evidence being presented.
Prosecution originally requested and were authorised complainants' video evidence to be taken. They chose not to participate with this."
33 Given the admissions made by the applicant during the video interview, the Crown would have been perfectly justified in not seeking to present evidence by the complainants on the basis that the Crown case would be based upon the video evidence.
(Page 15)
34 The applicant's original grounds of appeal also contain an assertion that:
"Hearsay evidence was accepted by the Court from the prosecution but similar evidence was not."
35 No reference to this point was made in the written submissions prepared for the applicant or in his oral submissions. No objection was taken at the trial to any of the evidence that was given on the basis that it was hearsay. In my opinion, there is no substance whatever in any of the proposed grounds of appeal such as would justify the grant of leave to appeal against the convictions of the offences involving E. In my opinion, leave to appeal should be refused.
Application for leave to appeal against conviction in respect of T
36 I turn now to the appeal against conviction in relation to the offence involving T. The grounds upon which the applicant seeks leave to appeal in this case are substantially the same as in relation to the application in respect of the convictions concerning E.
37 The applicant's trial in relation to the offence of indecently dealing with T was held on 16 September 1999. On the previous day the learned trial Judge heard submissions regarding the editing of the video record of interview so as to exclude material relating to E. It is significant that, during the course of argument about what should and should not be put before the jury from the video interview in relation to T, counsel for the applicant pointed out that the trial relating to T would:
"… not be run on the basis that absolutely nothing occurred. It will be run on the basis of the appropriateness or otherwise of the conduct."
38 The Crown case was that in or about 1996 the applicant formed a relationship with Mrs Odthon, who had two children, E and T. T was the complainant. T was born on 5 May 1989 and, as at Christmas 1997, was about 8 years of age when the incident giving rise to the alleged offence occurred. This involved the applicant the applicant putting his hand up T''s pants and touching his penis. Counsel for the Crown opened the case to the jury on the basis that the real question the jury would have to decide was whether the touching of the penis of the complainant by the applicant was, in all the circumstances, indecent.
(Page 16)
39 T was not called to give evidence. The Crown case relied primarily on what the applicant told police in the video-recorded interview conducted on 23 March 1998 at the Child Abuse Unit. The Crown called Ms Vermeulen who gave similar evidence to that she had given in the previous trial. In particular, she gave evidence that, in the telephone call on 26 February 1998, the applicant said on more than one occasion that the situation had resolved itself and was fixed. In particular, the applicant said that he had only touched T once and then only because his mother had never taught T about sex. Ms Vermeulen had told the applicant that touching was not an appropriate way to teach a child about sex. The applicant agreed, saying it was a poor judgment call on his behalf and that he and Mrs Odthon had fixed the problem. There was then the conversation about Safe Care to which reference has already been made.
40 Both Sergeant Pagels and Detective O'Connor were again called to give evidence of the video record of interview. On this occasion Sergeant Pagels gave evidence that he was conducting inquiries into a complaint in relation to T in the course of which he telephoned the applicant, who attended at the office of the Child Abuse Unit on 23 March 1998 when a video record of interview was conducted in the presence of Detective O'Connor. The video was duly played. On this occasion Sergeant Pagels was not cross-examined. His evidence was corroborated by Detective O'Connor who said that he had no further conversation with the applicant that day. Detective O'Connor was not cross-examined. The evidence which Sergeant Pagels and Detective O'Connor gave concerning the circumstances under which the video record of interview had been obtained was in all material respects the same as the evidence given in the previous trial.
41 During the course of the video interview, the applicant related an incident which occurred on a particular afternoon at his home in Lathlain, when T's mother was out and T's sister, E, was asleep in bed. This incident was the basis of the charge of indecent dealing with a child under the age of 13 years. The incident occurred about six or eight weeks after Mrs Odthon and the children moved in to live with the applicant. The applicant was alone in the lounge room with T who was then 8 years old. In the interview the applicant was asked what actually happened with T. The applicant said that T appeared to be concerned why his penis was getting hard. He asked the applicant what was going on because, when he asked his mother, she had told him that it was a problem. When T asked the applicant about it initially, he told him basically the same thing, "That it was his problem". This first happened over nine weeks previously. He said that he had told T later:
(Page 17)
- "It's - - it's going to happen, and you know, don't be surprised if every morning you wake up with one. You then just go to the toilet and you'll be all right."
42 He said that on the day of the alleged offence there were some other questions which followed. He then said:
"I - - well, I grabbed hold of it and … said 'Well, when it goes like this, a lot of the time it's to do with two things, you know. The first one is going to the toilet. That's the … main one you need to know about'. And … I said 'You'll learn about the rest later'."
43 The applicant then confirmed in response to a question that he had touched T on the penis. Suffice it to say that the applicant described how, having put some saliva on his fingers, he put his hand inside T's boxer shorts through the open leg and touched him on the penis. They were talking about it and it went on for a minute or so or maybe longer. He then asked T, "Is everything organised?" and T replied, "Yeah, no problems". There was nothing else said between them.
44 Later in the interview the applicant was asked why he had put saliva on his fingers. At this point the interview concluded as follows:
"A. I - - I - - the only thing I can think of is - because it's a while ago - he didn't follow - - he didn't really follow what I meant, you know. I said that from, you know - - if he's got boxer shorts on and things like that because they're silky, you know, as you're walking along, whatever, and it can go hard because of that and that sort of thing because I was saying it was very sensitive and that's probably why.
Q. Okay. So were you actually masturbating him?
A. Well, I had my hands on - - on - - on his old fella but I - - I wasn't sort of trying to come or anything like that or - - it was just like the head of his - -
Q. So you were just rubbing the tip of his penis?
A. Yeah, basically. Yeah."
(Page 18)
45 The applicant said that the incident occurred at his home about nine weeks prior to the police interview on 23 March 1998, which would have been during the period between 25 December 1997 and 28 February 1998, being the period stipulated in the indictment.
46 The applicant gave evidence in his defence, including evidence concerning the background to the relationship similar to that which he had given at the earlier trial. He said that by the time T was aged 8 he considered himself to be T's father. He said there was always some suspicion on T's behalf that he was going to take his mother from him, but they got on very well. His role with T was that of a parent. There were occasions toward the end of 1997 when T came out of his bedroom and told his mother his penis was erect. She would tell him to go back to his room and it would sort itself out. The applicant spoke to Mrs Odthon about it and T raised the matter with him also. Not being his father, he told T it was really his problem, but he suggested that, if he went to the toilet, that would sort things out. There was some discussion after that between the applicant and Mrs Odthon that he should take a more active parenting role.
47 The applicant gave evidence that at the very end of 1997 on a weekend day, T and the applicant were at the house in Lathlain. The applicant was watching television. T was reading, playing with Leggo or watching television. T exclaimed that something was happening, "It was doing it again". The applicant asked him what was wrong. T said his penis had grown again. The applicant told T he knew how to fix it, "Just go to the toilet". T said he had done that, he did not need to go to the toilet, it was not because of that. The applicant told him there was sometimes another reason why it happened. He was wearing silky boxer shorts and if he was moving around it was possible his penis was being excited by the material. T could not understand that an external thing would do it. He thought it was all himself. The applicant told him it was probably the material.
48 The applicant then asked T whether he could touch him. T said "Yes, it was okay". The applicant told him he was going to squeeze him on the penis. The applicant said he wet the ends of his fingers because his hands were "pretty rough". He said he touched his tongue and squeezed the head of T's penis. He said he did that because T did not follow what he meant about the head of the penis being sensitive and clothes or any sort of external thing being able to enlarge it. He squeezed with his thumb and forefinger for less than a second. The applicant said he did not touch T's penis anywhere else. T squirmed away.
(Page 19)
49 The applicant asked T if he understood now that the head of the penis is very sensitive and it could be his clothes. T said, "Yes" and asked what he could do to fix it. The applicant suggested he speak to his mother about getting some cotton "jocks".
50 The applicant spoke to Mrs Odthon later about getting the same thing for him. T thanked the applicant. The applicant said there was nothing sexual about his touching of T on that day. The whole incident would have lasted a couple of minutes. The applicant said he was not sexually aroused by what had occurred. He also said that he had never dealt with those sorts of issues with children before.
51 The applicant said that when he telephoned Ms Vermeulen on 26 February 1998 he raised concerns about the fact that the children had been taken because he and Mrs Odthon did not know where they were. The conversation came around to T. Ms Vermeulen said that he had no right to treat the child like he had. The applicant said he told Ms Vermeulen that she did not know what she was talking about and explained the incident to her. After he had told her what had happened she called him an animal. She said he had no right to do it, it was not his place, he was not their father. She said it was the domain of the teacher, social worker, nurse, doctor and no place of his. The applicant said he got angry with Ms Vermeulen and told her she did not know what she was talking about, she was not in the same situation.
52 As previously mentioned Ms Vermeulen gave evidence for the prosecution substantially to the same effect as her previous evidence, although on this occasion she was cross-examined about her telephone conversation with the applicant on 26 February 1998. In particular, she denied that the applicant went into any detail regarding his contact with T in the conversation. In particular, she denied that the applicant told her that T had concerns about getting an erection, that his mother had not wanted to speak to him about the problem, that the boy had raised it with him and he did not understand what he was speaking about, as a result of which he ended up touching his penis and "that was that". Ms Vermeulen said that there was no such conversation. Ms Vermeulen did say, however, that the applicant had said to her, "I only touched [T] once. I only touched [T] because his mother never taught him about sex".
53 To the extent that the applicant sought to rely upon the allegation of perjury by the police officers in relation to the second trial, there was no foundation whatever for the assertion. Likewise, it was never suggested in relation to the second trial that the record of interview was obtained
(Page 20)
- under form of duress. The issue was simply not raised. Consequently, the submissions to which I have earlier referred regarding alleged threats to charge Mrs Odthon, the setting of the amount of bail and the submission regarding the "prejudicial value" of the record of interview had no application.
54 As in the case involving E, there is no substance in the contention that no evidence was given by the complainant, even though the Court had approved the recording of the complainant's evidence by video. There is no merit whatever in that submission.
55 A submission by the applicant that the police officer who made the initial complaint had previously been involved in a relationship with Mrs Odthon was of no relevance to the proceedings. The same comment applies to other related submissions which were made by the applicant.
56 The grounds of appeal also contended that evidence accepted by the Court from the prosecution was "deemed as hearsay although similar evidence by the defence was not". I have been unable to discern any basis for this contention, which was not referred to in the applicant's submissions.
57 The grounds of appeal also contended that a crucial witness could not be called "due to that person attending Court and hearing both prosecution and defence witnesses". That point does not appear to have been pursued. In any event, such evidence of what a spectator recalled witnesses had said would be irrelevant, in view of the fact that the Court has the advantage of complete transcripts of the evidence of both trials.
58 In the result, I am of the opinion that there is no merit whatsoever in the applicant's grounds of appeal against conviction in the case of T. The consequence of that conclusion is that the application for leave to appeal should be refused.
Applications for leave to appeal against sentence
59 On 16 September 1999 the applicant was sentenced to imprisonment for six years in respect of each of the three counts of sexual penetration of a child under the age of 13 years to be served concurrently with each other. On the same date, he was sentenced to imprisonment for 18 months on the count of indecent dealing with a child under the age of 13 years. That sentence was directed to be served cumulatively upon the previous
(Page 21)
- sentences so that the applicant was sentenced to a total term of imprisonment of seven and a half years.
60 The applicant has sought leave to appeal against the sentences imposed on the following grounds:
"1. The Learned Sentencing Judge erred in ordering that the 18 month sentence imposed for the count of indecent dealing be served cumulatively on the 6 year sentence for sexual penetration. The offences were closely related in time and circumstance and should have been dealt with concurrently.
2. By ordering that the sentences be served cumulatively, the Learned Sentencing Judge erred in failing to adequately consider the principle of totality."
61 In submissions prepared for him by the Unrepresented Criminal Appellants Scheme, the applicant submitted, first, that the sentences for the sexual penetration were in the upper end of the range for offences of this nature and, as a consequence, the order that the sentence for the indecent dealing be served cumulatively resulted in the overall sentence being manifestly excessive. Secondly, it was submitted that, had he been convicted solely of the indecent dealing, that sentence would not have resulted in imprisonment. The sentence of 18 months to be served cumulatively did not reflect the degree of criminality involved and the sentence should have been ordered to be served concurrently. Thirdly, it was submitted that the overall sentence did not reflect the criminality involved as the offences were all a part of the same criminal conduct and were closely related by time and circumstance. Finally, while it was conceded that the offences were serious, they were not the worst of their kind and involved no threats of actual violence as was described in Podirsky (1989) 43 A Crim R 404 in which there was a review of sentences imposed for sexual offences at 410 - 411 per Malcolm CJ.
62 The principles applicable in an appeal against sentence were most recently restated by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672 Gleeson CJ, Callinan, Gaudron, Gummow, Hayne and McHugh JJ said that:
"… a court of criminal appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge
(Page 22)
- exercised his or her discretion. This is basic (House v The King (1936) 55 CLR 499). The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of justice."
63 It is convenient first to deal with the sentences imposed in respect of the offences involving E. As has been said many times, a tariff in relation to sexual offences remains as elusive as ever and it is not desirable to attempt to establish one: Trescuri v The Queen [1999] WASCA 172. In this context, it is of relevance that, at the time when Podirsky, supra, was decided, the maximum penalties then applicable differed from those currently prescribed. The maximum sentence for sexual penetration of a child under the age of 13 years is now 20 years and that for indecently dealing with a child under the age of 13 years is 10 years. These penalties reflect the seriousness of these offences. Cases of intra-familial sexual abuse should typically attract significant sentences of imprisonment: Woods v The Queen (1995) 14 WAR 341 at 354 per Anderson J. In that case, at 349 - 359, Anderson J reviewed a number of cases, including Stanton v The Queen, unreported; CCA SCt of WA; Library No 920298; 28 May 1992; Neil v The Queen (1982) 149 CLR 305; Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993; Podirsky, supra; Podirsky v The Queen (1990) 3 WAR 128; R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993; R v Fancourt, unreported; CCA SCt of WA; Library No 8319; 18 June 1990; Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994; Malone v The Queen, unreported; CCA SCt of WA; Library No 8180; 6 April 1990; Price v The Queen (1988) 33 A Crim R 359; R v Ginder (1987) 23 A Crim R 1; Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990; and Squance v The Queen, unreported; CCA SCt of WA; Library No 8276; 31 May 1990.
64 What emerges from these cases is that, in a number of cases, sentences of six years or more have been imposed for offences, a number of which were significantly more serious than the present case, so far as the complainant E was concerned. While it is difficult to make comparisons, the present case bears some similarity to Ginder. In that case there was a single count of sexual penetration in the form of cunnilingus. The complainant was the offender's daughter, aged 9. He had taken her into his wife's bedroom, told her to undress, took off his own clothes, licked her vagina and penetrated her with his tongue. He then masturbated to ejaculation, told the child to get dressed and go to bed, which she did. The offender was under the influence of alcohol at
(Page 23)
- the time. He admitted the offence, pleaded guilty and gave the explanation that he was drunk and wished to gain some form of revenge upon his wife who was said to be having an affair with another man at the time.
65 The Court of Criminal Appeal substituted a sentence of imprisonment for six years for the sentence of two and a half years imposed by the learned sentencing Judge. In my opinion, that was a significantly more serious case than the present. Although the complainant in this case was younger and the applicant was in a position of trust, it is apparent from his admissions made by the applicant, which constituted the case against him, that the degree of penetration on each of the three occasions the subject of the counts upon which he was convicted could not be said to be more than minimal. In the present case also, the offences, as serious as they were, also appear to have been opportunistic. At the same time, of course, the applicant was in a position of authority and showed no remorse.
66 In my opinion, the imposition of a sentence of imprisonment for six years for each of the three offences involving E was, in each case, manifestly excessive and inconsistent with the general pattern of sentencing for offences of that kind, accepting the elusiveness of a tariff. In this particular case, as I have said, the degree of penetration was minimal.
67 In the context of the indecent dealing offence committed by the applicant against T, the offence involved a substantial breach of trust by a person in authority but, once again, as serious as the offence was, it was at the lower end of the scale for offences of this kind. Given all of the circumstances and the general pattern of sentences for offences of this kind, I consider that the offence involving T did not justify the imposition of a sentence greater than imprisonment for one year. There was no alternative for the court but to sentence on the version of the facts recounted by the applicant in his interview with police officers which I have recounted above.
68 In the result, for the reasons which I have indicated, I would grant the applicant leave to appeal against sentence, quash the sentences imposed by the learned trial Judge and substitute a sentence of four years for each of the offences committed against E. While there were three separate offences involving E, each of the same character, I consider that, paying due regard to the totality principle, the sentences imposed should be concurrent with each other, in order to avoid a "crushing" sentence for
(Page 24)
those offences. So far as the offence of indecent dealing with T is concerned, I am of the opinion that an appropriate sentence would be a sentence of imprisonment for one year. I would direct that sentence to be served cumulatively upon the other sentences. The conduct in question involved a different victim under different circumstances. I would not regard a total sentence of five years as crushing. In my opinion, this would not be a crushing sentence and no further reduction is required by reason of the totality principle.
69 For these reasons I would grant the applicant leave to appeal against the sentences imposed, allow the appeals and substitute the sentences I have indicated.
70 WALLWORK J: I agree with the reasons for judgment and to the orders proposed by Malcolm CJ.
71 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of the Chief Justice. I agree that for the reasons given by the Chief Justice the application for leave to appeal against conviction should be refused, but the appeal against sentence should be allowed to the extent indicated.
5
6
1