THG v The State of Western Australia
[2012] WASCA 139
•13 JULY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THG -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 139
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 1 JUNE 2012
DELIVERED : 13 JULY 2012
FILE NO/S: CACR 1 of 2012
CACR 2 of 2012
BETWEEN: THG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND KAL 40 of 2011
Catchwords:
Criminal law - Application for leave to appeal against conviction - Grievous bodily harm in circumstances of aggravation and aggravated sexual penetration without consent - Whether trial judge erred in declaring witness hostile
Criminal law - Application for leave to appeal against sentence - Whether first limb of totality principle infringed - Whether sentence for offence of aggravated sexual penetration without consent manifestly excessive - Whether offence of aggravated sexual penetration without consent was within worst category of offending - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Holgate Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Giglia v The State of Western Australia [2010] WASCA 9
McLellan v Bowyer (1961) 106 CLR 95
The State of Western Australia v BLM [2009] WASCA 88
McLURE P: This is an appeal against conviction and sentence. The appellant was convicted after trial of one count of causing grievous bodily harm in circumstances of aggravation (count 1) and one count of aggravated sexual penetration without consent (count 2).
On 15 December 2011 Scott DCJ sentenced the appellant to 2 years and 6 months' imprisonment on count 1, reduced from 4 years for totality reasons, and 10 years' imprisonment on count 2. The sentences were ordered to be served cumulatively, producing a total effective sentence of 12 years and 6 months' imprisonment.
The facts found for sentencing purposes are as follows. The circumstances of aggravation for both offences were that the appellant was in a family and domestic relationship with the complainant, his de facto wife PG, and in breach of a violence restraining order.
The appellant and PG had been in a de facto relationship for about 14 years and had six children. As at the date of the offending on 19 January 2011, there was a violence restraining order against him in favour of PG.
Around the time of the offending PG was regularly at the home of her sister, DW. At about 8.00 pm on 19 January 2011 the appellant went to DW's home. He was under the influence of alcohol and drugs. He saw PG backing out of the driveway in DW's white Land Rover. She had a number of children in the back of the vehicle. The appellant pulled himself into the car through the open driver's window and sat in the front passenger seat. At the appellant's direction, PG drove to the post office where the appellant left the vehicle. She drove off. The appellant chased the car.
PG wanted to drop the children at DW's home. She rang the appellant to see where he was. He appeared to be calm and asked her to pick him up. She did so. When the appellant got into the car, he was very angry with PG for leaving him behind at the post office. PG drove the appellant and the children to DW's home. She dropped the children off and drove off with the appellant after he told her he wanted to be dropped off at a friend's home. When PG arrived at the friend's home, the appellant took the keys from the car. He checked the friend's home to find that he was not there and returned to the car. The appellant told PG to drive out of town to Lake Douglas. She did so out of fear.
At the turnoff towards Lake Douglas the appellant told her to stop. He then drove the vehicle. The appellant threatened and abused PG. She was afraid for her safety. By then it was nearly 10.00 pm. She got hold of the appellant's mobile telephone and rang the police without the appellant knowing. The appellant continued to abuse and threaten her. He was driving fast and was clearly affected by drugs and/or alcohol. PG was very afraid for her safety because of the way the appellant was acting towards her and his manner of driving. In order to escape from the appellant, PG jumped out of the open passenger window of the vehicle, causing a severe injury to her right ankle. It was dislocated and badly fractured. She could not walk properly.
The appellant stopped the car, assisted her back into it and then continued driving into the bush. PG told the appellant that her ankle was broken and she was in terrible pain. She continually told the appellant that she needed to go to hospital and he continually refused to take her. The appellant drove about 15 km further into the bush. He then said words to the effect 'This is what you get for not wanting me' and started to punch her in the face. She put her hands up to try and protect herself and lost consciousness. Later she dialled the police emergency number again, hiding the phone so the appellant could not see it.
At some point PG got out of the car and tried to walk, but fell over. The appellant started yelling at her. He dragged her back into the car. She lost consciousness again. When she awoke she was in the back of the car. She then discovered that she had suffered very severe genital injuries. The car became bogged. Eventually at about 7.30 am the following morning, the appellant drove PG to Kalgoorlie Hospital.
The injuries suffered by PG were described by the trial judge as horrendous. She had a compound fracture and dislocation of her right foot, recto‑vaginal tearing and multiple soft tissue injuries to her face and limbs. Examination of her genital injuries had to be undertaken under general anaesthetic while she underwent surgery on her ankle.
The trial judge was satisfied beyond reasonable doubt that PG's genital injuries were caused by the appellant penetrating her vagina and anus with the handle of a jack which was in the back of DW's vehicle. The appellant had inflicted a cut extending from PG's vagina almost to the cervix. There was also a recto‑vaginal tear, resulting in a cut from the orifice of the vagina to the anus, leaving the entire area as one hole. A doctor gave evidence that it was a fourth degree tear, the most severe level ordinarily associated with childbirth. PG was required to undergo multiple operations at King Edward Memorial Hospital and Royal Perth Hospital.
Appeal against conviction
The appellant relies on one ground. It is in these terms:
There was a miscarriage of justice when the trial Judge came to the conclusion the witness [PG] was not prepared to tell the truth such that His Honour declared the complainant hostile and allowed the State to cross‑examine its own witness;
Particulars:
1.1It could not safely be said that the complainant was unwilling to tell the truth;
1.2The complainant's reluctance to answer the relevant questions was not necessarily borne out of a desire to be untruthful;
1.3The complainant's reluctance to answer the relevant questions did not reveal an intention to deliberately withhold material evidence.
Those claims are entirely without merit. PG was called by the prosecution and gave evidence‑in‑chief of the circumstances surrounding count 1. She then gave evidence that the appellant was driving the car and he stopped again. The examination‑in‑chief continued:
What happened when he stopped again‑‑‑I don't want to go into that.
Did you leave the car at any point?‑‑‑No.
Now, you have told me something happened when the car stopped that you don't want to go into. Why don't you want to go into that?‑‑‑Because I don't feel that it's needed to be brought up.
[PG], where did you end up the next day?‑‑‑In hospital.
What was wrong with [you]?---I don't want to go into that as well.
Your Honour, perhaps I have an application to make in the absence of the jury.
The jury and the witness withdrew. The prosecutor applied to have PG declared a hostile witness:
CHRISTIAN, MS: Your Honour, I would apply to be able to cross‑examine this witness. She has indicated in court in front of the jury a reluctance to discuss events that occurred that night. I also do have a statement that she has provided which I have provided to my friend and I have a copy I can give to your Honour, in which she sets out really the reason of her unwillingness to go ahead. Perhaps I can give your Honour the original of that.
SCOTT DCJ: Thank you. Let me read it first of all.
CHRISTIAN, MS: Your Honour can see from those reasons that the reasons have nothing whatsoever to do with the factual circumstances as to what happened. Your Honour, the witness had also provided in affidavit to my friend ‑ it was faxed through to him ‑ that we received last week. I can provide your Honour with a copy of that as well.
The prosecutor then sought leave to cross‑examine the witness. The following exchange occurred with the appellant's counsel:
HARRIS, MR: I don't think the point has been reached yet, your Honour, but it always must be your decision.
SCOTT DCJ: [PG] has made a deposition in which she has made certain statements. She is now giving evidence to some extent inconsistent in a material way - particularly did she ever leave the car, for example, is one of them ‑ and now she is refusing to answer any questions relating to the injuries with which she suffered. So why do you say that it hasn't reached the stage at which the leave ought not be granted?
HARRIS, MR: I suppose you're right, yes. I wonder if a direction to her from you that she is required to answer questions?
SCOTT DCJ: I'm proposing that I will do that.
The witness was recalled and questioned by the trial judge as follows:
[PG], it's Judge Scott here. Can you hear me?---Yes, I can.
You are here as a witness called by the State of Western Australia and the state has a number of statements that have been made by you in which you've said certain things?‑‑‑Yes.
Now, you have given evidence so far that is in terms that you are not prepared to answer questions that are being asked by the state of you because you don't want to answer them. Is that correct?---Yes, it is.
This is a criminal trial and it's a charge brought by the State of Western Australia against the accused man. When questions are asked of you it is important that you answer those questions. You've taken an oath or an affirmation to give evidence in a truthful way and I am proposing to you that in respect to the questions that are asked of you you should answer them in a truthful way. Are you going to do so?---No.
Why are you not going to do so?---Because I feel that it's invade of my privacy.
I'm not here to persuade you one way or the other - - -?---Yeah.
- - - but I am going to allow the state prosecutor to ask you questions in a particular way by cross-examining you as what is called a hostile witness. Do you understand that?---No.
Well, with the objective to ask you questions which you ought to answer truthfully, so I want to give you another opportunity to answer the questions that are being asked in the present form by the prosecutor. Do you propose to answer her questions?‑‑‑No.
All right, thank you.
PG had sworn an affidavit dated 5 October 2011 in which she recanted the contents of her depositions dated 21 January 2011 and 1 March 2011. She concluded the affidavit with the statement:
So what I'm trying to say is that my injuries are my fault by me falling out of the car and as for the sexual assault I don't think it's an assault as it was consensual.
The prosecutor had earlier informed the trial judge without objection that after service of this affidavit, police obtained the contents of telephone conversations made between the appellant and PG whilst he was in prison in which it was clear that the appellant had told PG what to put in her affidavit.
PG swore a further affidavit dated 11 October 2011 in which she stated that she did not want to go ahead with giving evidence because police had not been able to prevent 'this happening to me as a victim' even though she had a violence restraining order in place. The trial judge had both affidavits before him.
The gravamen of the submissions put on behalf of the appellant is that a witness must either answer a question untruthfully or reveal an intention to answer untruthfully. That misstates the scope and purpose of the discretion to declare a witness hostile. It is unduly narrow. The test is directed to the incapacity of the party calling the witness to elicit the truth by non‑leading questions because the witness is deliberately withholding material evidence: McLellan v Bowyer (1961) 106 CLR 95, 103. PG made it unequivocally clear at trial that she had no intention of answering the prosecutor's questions, in a truthful way or at all.
This ground has no reasonable prospect of succeeding.
Appeal against sentence
The appellant was just short of his 34th birthday when he committed the offences. He completed Year 10 at school, had a history of employment in semi‑skilled positions and had abused alcohol and illicit drugs since the age of 17. His violent behaviour is made worse by his substance abuse and dependence. The appellant was raised by relatives after seeing his father kill his mother when he was around 6 years old.
The appellant had a significant prior history of convictions for violence‑related offences. Much of the violence had been directed towards his partner, PG. On 3 December 2009 he was convicted of aggravated common assault for which no punishment was imposed. On 2 June 2009 he was convicted of unlawful assault in circumstances of aggravation for which a pre‑sentence order was imposed. This offence involved the appellant punching PG to the face repeatedly with clenched fists causing her to lose consciousness. Children were present during the assault.
On 16 September 2002 the appellant was convicted of one count of assault occasioning bodily harm, two counts of deprivation of liberty and two counts of stealing a motor vehicle. The appellant had stolen a motor vehicle with PG and five of his children inside. After a police chase in which he crashed the vehicle, the appellant took PG hostage. He placed her in a headlock and held a tomahawk to her throat. On another occasion the appellant threatened PG with a kitchen knife and told her to follow him to the shops. A total sentence of 5 years and 10 months' imprisonment was imposed for all the offences for which he was sentenced on 16 September 2002. On 17 October 2000 he was convicted of two counts of making threats to kill which involved him pointing a kitchen knife at PG's throat. He received a total sentence of 15 months' imprisonment. Police had also attended numerous domestic violence incidents (32) in Perth and Kalgoorlie since 2001.
The appellant also had eight convictions for breach of a violence restraining order. The penalties imposed for those offences ranged from no punishment (3), an intensive supervision order (1) and a suspended term of 4 months' imprisonment (1). When imprisonment was imposed, the terms were short (4 months and 6 months) and ordered to be served concurrently with the sentences for other offences. Moreover, the appellant had been convicted on three occasions of breaching the protective conditions of his bail, the penalties for which were a pre‑sentence order, a fine of $200 and no punishment. He had eight other convictions for breach of bail.
The appellant's interjections during sentencing reveal a contemptuousness for the norms on which the criminal law is based. The leniency of some of the penalties imposed for his breach of orders imposed to protect PG may have reinforced his attitude.
The sentencing judge concluded that PG's emotional fragility (she provided the sentencing judge with a letter in support of the appellant) was undoubtedly related to the violence that had been perpetrated against her by the appellant. Her safety was a matter of real concern to the sentencing judge. He also found that:
[The appellant] injured [PG] in this dreadful way for the purposes of teaching her a lesson and to damage her in a way that would sexually injure her substantially. It was then sometime before she was taken to the hospital so her genital injuries could be treated.
The offence of sexual penetration having regard to the way in which it was carried out and the severity of her injuries which were caused places your conduct in the worst category of offending (ts 63).
There were no mitigating factors. The appellant denied the conduct and showed no remorse for the substantial injuries he caused. He was assessed by a psychiatrist as being at high risk of reoffending.
The appellant relies on three grounds of appeal. They are that the total effective sentence infringes the first limb of the totality principle (ground 1); the sentence for the offence of aggravated sexual penetration is manifestly excessive (ground 2); and the sentencing judge erred in categorising the offence of aggravated sexual penetration as falling within the worst category of offending (ground 3).
The finding that the sexual assault was in the worst category has the consequence that the sentencing range established under the transitional provisions is not applicable: The State of Western Australia v BLM [2009] WASCA 88 [43]. The level of violence perpetrated by the appellant on his partner, inflicted as it was with a weapon, is of a very high order and resulted in serious injuries. It was unarguably open to the sentencing judge to conclude that the sexual penetration offence was in the worst category for sentencing purposes. Accordingly the range of sentences customarily imposed for sexual offences outside the worst category provide no yardstick for consistency purposes.
In addition, there were no mitigating factors of any significance; there was a total absence of insight and remorse; the risk of the appellant reoffending is high; and as the sentencing judge found, the appellant poses
a real threat to the safety of PG. There is no reason to doubt that assessment. The claim that the sentence of 10 years on count 2 is manifestly excessive is without merit.
The totality claim is also without merit. The sentencing judge reduced the sentence on count 1 solely for totality reasons, having determined to order cumulation. See Giglia v The State of Western Australia [2010] WASCA 9. The total sentence is proportional to the overall criminality involved in both offences.
Leave to appeal is refused and the appeals dismissed.
BUSS JA: I agree with McLure P, generally for the reasons she gives, that leave to appeal against conviction and leave to appeal against sentence should be refused and each of the appeals should be dismissed.
MAZZA JA: I agree with McLure P.
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