VDH v The State of Western Australia
[2025] WASCA 10
•15 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VDH -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 10
CORAM: QUINLAN CJ
MAZZA JA
VANDONGEN JA
HEARD: 7 MAY 2024
DELIVERED : 15 JANUARY 2025
FILE NO: CACR 114 of 2022
BETWEEN: VDH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO: CACR 61 of 2023
BETWEEN: VDH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : GER/IND 27 of 2020
Catchwords:
Criminal Law – Appeal against conviction – Sexual penetration of a child under 13 years of age – Indecent dealing with a child under the age of 13 years – Whether verdicts unreasonable or unsupported by the evidence – Turns on own facts
Criminal law – Sentencing – Sexual penetration of a child under 13 years of age – Indecent dealing with a child under the age of 13 years – Total effective sentence of 10 years imprisonment – Whether sentence infringed the totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 320(2), s 320(4)
Result:
Applications for extensions of time refused
Applications for leave to appeal
Appeals dismissed
Category: B
Representation:
CACR 114 of 2022
Counsel:
| Appellant | : | In Person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 61 of 2023
Counsel:
| Appellant | : | In Person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
CAND v The State of Western Australia [2018] WASCA 101
Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 98 ALJR 644
Kabambi v The State of Western Australia [2019] WASCA 44
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
LYN v The State of Western Australia [2019] WASCA 45
MHE v The State of Western Australia [2019] WASCA 133
Moore v The State of Western Australia [2023] WASCA 156
NE v The State of Western Australia [2021] WASCA 172
Newton v The State of Western Australia [2023] WASCA 7
OTR v The State of Western Australia [No 2] [2022] WASCA 123
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Pennetta v The State of Western Australia [2013] WASCA 234
Sturniolo v The State of Western Australia [2023] WASCA 147
Taylor v The State of Western Australia [2020] WASCA 113
The State of Western Australia v CGT [2018] WASCA 226
The State of Western Australia v Prince [2011] WASCA 22
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wark v The State of Western Australia [2023] WASCA 66
Table of Contents
Introduction and overview
Conviction appeal
Conviction appeal – preliminary issue
State case at trial
Evidence of Deanne Mason
Evidence of Rachael Cooke
Evidence of Kylie Cooke
Evidence of the appellant's sisters
Police evidence
Defence case at trial
Appellant's evidence
Evidence of the appellant's wife
Relevant trial directions
Conviction appeal – ground of appeal
Conviction appeal – legal principles
Conviction appeal – alleged inconsistencies, discrepancies and other inadequacies identified by the appellant
Conviction appeal – disposition
Sentence appeal
Sentencing remarks
Sentence appeal – ground of appeal
Sentence appeal – legal principles
Sentence appeal – disposition
Conclusion
JUDGMENT OF THE COURT:
Introduction and overview
In May 2021, the appellant was tried before a judge and jury in the District Court of Western Australia on five charges of sexual offences alleged to have been committed by him against three of his nieces in 1998 and 1999. His nieces – Deanne Mason, Rachael Cooke and Kylie Cooke (not their real names) – all gave evidence of incidents in which they described the appellant sexually interfering with them. The appellant gave evidence denying the offending. The appellant's wife also gave evidence which, if accepted, was capable of casting doubt on the veracity of the children's allegations.
On 13 May 2021, the jury convicted the appellant of four counts of sexual penetration of a child under the age of 13 years and one count of indecently dealing with a child under the age of 13 years, contrary to s 320(2) and s 320(4) of the Criminal Code (WA) respectively. On 20 May 2021, the learned trial judge, Troy DCJ, sentenced the appellant to a total effective sentence of 10 years imprisonment.
The appellant now seeks leave to appeal both his convictions and sentence. Each application is substantially out of time. The appeal against conviction is about 18 months out of time. The appeal against sentence is about two years out of time. Whether an extension of time is granted will depend upon the merits of the appeal.
In his appeal against conviction, the appellant contends that the verdicts of guilty were unreasonable and not supported by the evidence. That ground of appeal requires this Court to make an independent assessment of the sufficiency and quality of the evidence to convict the appellant. In doing so, the Court must proceed upon the assumption that the evidence of Deanne, Rachael and Kylie was assessed by the jury to be credible and reliable.
In his appeal against sentence, the appellant contends that the total sentence imposed by the learned trial judge was disproportionate to the overall criminality involved in all of the offending and was crushing. As will be apparent, the appeal against sentence seeks to invoke both limbs of the totality principle.
For the reasons that follow, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charges. Further, none of the matters relied upon by the appellant in the appeal give rise to a doubt in our minds that is not readily resolved by the jury's advantage in seeing and hearing the evidence. We would dismiss the conviction appeal.
Similarly, the sentence of 10 years imprisonment did not, in our assessment, offend either limb of the totality principle. The appellant committed serious sexual offences against three separate young girls. The total effective sentence bore a proper relationship to that overall offending and it was not crushing. We would also dismiss the sentence appeal.
Conviction appeal
Before summarising the trial record and the ground of appeal in the conviction appeal it is convenient to address a preliminary matter concerning the conduct of the appeal.
Conviction appeal – preliminary issue
The appellant was unrepresented in both of his appeals.
At the hearing of the conviction appeal on 7 May 2024, in the course of his oral submissions, the appellant raised certain matters that extended beyond the scope of the ground of appeal. In particular, the appellant made statements to the effect that:
(a)there were a number of witnesses that ought to have been called on behalf of the appellant at his trial; and
(b)the complainant Deanne Mason gave sworn evidence in 2005 that was inconsistent with her evidence at trial.
Following the hearing of the appeal, and with the appellant's consent, the Court arranged for pro bono legal assistance to be provided to the appellant to better identify and articulate any additional matters he sought to raise in support of the conviction appeal. The parties were given leave to file any supplementary submissions or affidavits in that regard.
Pro bono legal assistance was provided to the appellant by Ms Roisin Keating, of counsel. Ms Keating investigated, and provided advice to the appellant in relation to, the matters identified in the pro bono referral. Having identified and reviewed the available material, and taken instructions from the appellant, Ms Keating advised the Court, by letter dated 28 June 2024, that there was nothing further to be put to the Court by way of supplementary submissions or affidavits in support of the appellant's appeal against conviction.
On 15 July 2024, a directions hearing was held in the appeal, at which it was confirmed with the appellant that no new material would be put before the Court and that the appeals against conviction and sentence would be determined on the existing material.
We record the Court's considerable gratitude for Ms Keating's willingness to provide, and diligence in providing, the appellant with assistance and advice in relation to his appeal against conviction. In circumstances in which a person is unrepresented in criminal proceedings before this Court, the provision of such assistance provides an important safeguard against the potential that an error leading to a miscarriage of justice might otherwise be missed, through no fault of the litigant.
In the present case, there having been no further materials filed by the appellant following the benefit of assistance, the conviction appeal falls to be determined on the basis of the sole ground of appeal.
Before turning to that ground, the case at trial may be briefly summarised.
State case at trial
The indictment in this matter charged the appellant as follows:
(1)On a date unknown between 31 December 1997 and 1 January 2000 at [a Western Australian town] [the appellant] sexually penetrated [Deanne Mason], a child under the age of 13 years, by engaging in cunnilingus.
(2)On another date unknown between 31 December 1997 and 1 January 2000 at [a Western Australian town] [the appellant] sexually penetrated [Deanne Mason], a child under the age of 13 years, by penetrating her vagina with his finger.
(3)On a date unknown between 31 December 1997 and 1 January 2000 at [a Western Australian town] [the appellant] sexually penetrated [Rachael Cooke], a child under the age of 13 years, by touching her clitoris.
(4)On a date unknown between 31 December 1997 and 1 January 2000 at [a Western Australian town] [the appellant] indecently dealt with [Rachael Cooke], a child under the age of 13 years, by masturbating himself in her presence.
(5)On a date unknown between 31 December 1997 and 1 January 2000 at [a Western Australian town] [the appellant] sexually penetrated [Kylie Cooke], a child under the age of 13 years, by penetrating her vagina with his penis.
As will be apparent, counts 1 and 2 concerned Deanne Mason, counts 3 and 4 concerned Rachael Cooke, and count 5 concerned Kylie Cooke.
Evidence of Deanne Mason
The State called Deanne Mason at trial. She was 28 years old at the time of giving evidence.
Deanne gave evidence that when she was aged six or seven, she moved to the town in Western Australia where the appellant, her uncle, lived.[1] She moved there with her mother and lived with her grandmother, her brother, as well as a first cousin.
[1] Trial ts 213.
Deanne said that while living with her grandmother she would visit the appellant's house with 'the girls and stuff … Like my cousins'.[2]
[2] Trial ts 216.
Deanne gave evidence about a particular occasion during that period on which she was 'sexually assaulted by my uncle throughout the time that I used to go there'. She immediately clarified that '[i]t only happened to me once though … not throughout the time'.[3]
[3] Trial ts 216.
Deanne said that she was playing out the front of the appellant's house with two other young girls, when the appellant invited them into his house and his room.[4] She continued:[5]
I ended up, you know, going in with them. I didn't know what was happening at the time. But as I went in there, my uncle, he closed the door behind us, and he just told me – like, because I was the first person sitting on the edge – edge of the bed. He looked at me first, and he asked – like, you know, take my pants down and stuff. So I pulled my pants down and I've sat back on the end of the bed. … And all of a sudden, he – I've just seen his head coming towards my private part in between my legs, seen his tongue came out. He started to lick my vagina, and then he started to put his finger inside me at the time. I was in so much pain, I didn't know what to do. I was scared. Like, I honestly didn't know what he was doing to me at the time.
[4] Trial ts 217.
[5] Trial ts 217.
The act of cunnilingus and the digital penetration the subject of this evidence formed the basis of counts 1 and 2 on the indictment.
Deanne said that this incident lasted 'about 30 seconds or so', before the appellant then turned to the other girls, although she did not see what occurred. Deanne said that after 'a minute or two' the appellant unlocked the door and let the girls out. She said that she ran home to her grandmother's house.[6]
[6] Trial ts 221.
In cross‑examination it was put to Deanne that while she was 'pretty clear' about parts of her evidence, there were other matters that she was 'less clear on', including the number of people in the bedroom at the time of the incident.[7] She said that she could recall that there were two others there, but could not remember exactly who they were.[8]
[7] Trial ts 225.
[8] Trial ts 225.
Deanne was asked whether she had made any application for criminal injuries compensation, and said that she had not.[9] She remained emphatic in cross‑examination that the appellant, '… did do it to me. I can clearly see it was him, and he knows that he did it to me. He knows it. He knows it'.[10]
Evidence of Rachael Cooke
[9] Trial ts 230.
[10] Trial ts 231.
The State called Rachael Cooke, who was 29 at the time of giving evidence. Kylie Cooke, who also gave evidence, is her sister. To distinguish between them, we have used their first names.
Rachael gave evidence that the appellant is her uncle, and that she lived in the same town as him until 1999 when she was eight years old. Many of her cousins also lived in the town, including Deanne. She and her cousins spent a lot of time at the appellant's house.
Rachael described an occasion, which she said was 'definitely in 1999, before June', in which she entered the appellant's house with a friend. Rachael said that as she walked past the appellant's bedroom, she saw him 'on the bed naked and playing with himself, touching his genital area'.[11] Her evidence continued:[12]
Can you remember what it was that he was actually doing?---It was actually jacking himself off. Playing with his penis.
Could you see his penis?---Yes.
What did he do?---Just laughed and smiled, and kept playing with himself, and I just looked at [one of the appellant's stepdaughters] like, 'what the heck, I'm getting out of here'.
Did you say anything to him?---No, I just walked off.
Did he say anything to you before you walked off?---If I recall, I think he said, 'come back', or 'stay', or something. Just laughing.
How long was it that you were sort of standing there for before you walked off?---Maybe a few seconds, less than a minute.
[11] Trial ts 59.
[12] Trial ts 61.
The act of masturbating in Rachael's presence the subject of this evidence formed the basis of count 4 on the indictment.
Rachael also gave evidence that, on a later date, she recalled standing at the entrance to the appellant's bedroom. She said that she was naked, having approached the room just after showering. The appellant was in the bedroom, sitting on the edge of the bed, and two of his stepdaughters were jumping on the bed, naked and 'doing flips to start with and somersaults and whatnot'.[13]
[13] Trial ts 62.
Rachael said that the appellant told her to sit down on the bed with her knees up and legs apart, which she did 'because I was scared'. She said that the appellant 'start[ed] touching my vagina' and was 'fumbling with the clitoris'.[14] Rachael said that this lasted 'a few minutes', and that the appellant's two stepdaughters remained in the room while it occurred.
[14] Trial ts 64 ‑ 65.
Rachael said that the appellant's wife burst into the room and yelled, 'No, no, no, not her'.[15] The appellant's wife pulled Rachael off the bed, and Rachael then left the house along with her sister, Kylie. Rachael said that she and Kylie 'jumped out of the window' and ran.
[15] Trial ts 65.
The act of penetrating Rachael's vagina, so as to touch her clitoris, which was the subject of this evidence, formed the basis of count 3 on the indictment.
In cross‑examination, Rachael was asked whether she had discussed her evidence with other people, including her cousin Deanne and sister Kylie.[16] Rachael said that she had asked her sister about her recollection of events around the time of the offending, and that those conversations occurred after Rachael had made a statement to the police in August 2019.
[16] Trial ts 73 ‑ 74.
Rachael was cross‑examined in relation to inconsistencies between her evidence and her statement to police. For example, she was asked the following questions:[17]
The evidence that you gave was that your memory was going from the X [a point in the appellant's house marked on a plan given to the witness] to the bed, being told what to do, and then being led out of the room. That's your memory - - - ?---Yes
- - - that you've given evidence of today?---Yes. Well, that's my memory today - - -
Right?--- - - - for---yes.
And what I'm saying is that that's not what you told the police. You told the police something different. You told them that you actually did some flips on the bed first, and I'm just asking you is that true or not?---Possibly, yes.
Well, is it or not? Do you know? You don't know?---Yes, it is.
All right. So here is my question, then: if that is your memory, why did you not give that in your evidence?---Because I don't want to remember all these little tiny details. It's disgusting.
But you actually told us that you have a memory, and you recalled that memory of going from the X to the bed, being told what to do, doing it, then being led out of the room, and that's a different version of events isn't it?---No, there isn't.
Right?---There may have been one tiny little mistake that I forgot to say today.
[17] Trial ts 87.
Rachael was asked a number of further questions testing her recollection, including as to the involvement of a 'DCP lady',[18] which she had discussed with Kylie. Rachael clearly had difficulty in relation to the involvement of the 'DCP lady'. She said, for example, 'I only remember glimpses of her' and later said 'I have a bit of mental health issues. My memory is a bit – comes and goes'.[19]
[18] In response to a question about how she knew that this person was a 'DCP lady', Rachael gave evidence that 'there was some sort of child protection thing near the police – across the road from us': trial ts 91. No other evidence was elicited as to what 'DCP' meant.
[19] Trial ts 94.
Rachael remained adamant that the offences had occurred:[20]
What I'm saying to you is that [the appellant] didn't masturbate in your presence in that house and that you've made that story up?---You can say that, but I know what I believe.
And I would say to you that he didn't touch your vagina on the bed that day or that evening and that you've made that story up?---And I would say that is just disgusting because everyone can say – everyone can make things up but I know what I believe.
Evidence of Kylie Cooke
[20] Trial ts 106 ‑ 107.
Kylie Cooke, Rachael's younger sister, gave evidence. She was 27 years old at the time of giving evidence. She also described growing up in the same town as the appellant and her extended family.
Kylie described an incident that occurred at the appellant's house when she was 'about six'.[21] There was 'a bunch of children' there at the time. She described being in the appellant's bedroom with other children, including Deanne Mason. She said that she was sitting on the floor with other children and that the appellant was 'laying on the bed naked and touching his private part'.[22]
[21] Trial ts 119.
[22] Trial ts 121.
Kylie described the other girls (the appellant's stepdaughters) undressing and touching Deanne and pushing her onto the bed. She said that the appellant rolled on top of Deanne. At this point, Kylie recalled being 'chucked' into a cupboard or small wardrobe in the bedroom. She was able to look through a hole in the cupboard, where she saw the appellant on top of Deanne 'raping her'.[23] Kylie was not asked and did not elaborate on what she meant by this expression.
[23] Trial ts 124.
Kylie said that she cried herself to sleep while in the cupboard but that after some time, she came out of the cupboard when someone grabbed her and laid her on the bed.[24] She remembered someone grabbing her legs and pulling her to the end of the bed, and when she opened her eyes it was the appellant.[25] Her evidence continued:[26]
[24] Trial ts 124.
[25] Trial ts 125.
[26] Trial ts 125 - 126.
So he pulls you towards him. What does he do then?---He put – he grabbed his penis and he tried to put it in my vagina, but he couldn't. Then he grabbed something and put that himself on his penis.
Could you see his penis?---Yes.
And can you describe what it looked like?---No.
And when you said that he couldn't, what could you feel? I mean, he couldn't - - -?---Like – he couldn't – he was trying to force – put his penis into my vagina but I was too small and he couldn't, and then he put something on his penis.
Did you see what it was - - -?---And - - -
- - - that he put on his penis?---No, I didn't. He grabbed something and put it on there.
Where did he grab that from?---I can't remember.
And he after he put whatever this was on his penis, what happened then?---Then he put his penis in my vagina.
And how far did it go in?---Just the tip of his penis went in.
What happened then, [Ms Cooke]?---Other kid – I just remember I was saying, 'My bones are breaking, my bones are breaking', and I hit him and he shouted for someone to come and grab me.
So when you said that your bones are breaking, or 'my bones are breaking', what did you mean by that?---That's when he was putting his penis inside my vagina.
But why did you say, 'My bones are breaking'?---Because that's the pain that I felt at the time.
And where was - - -?---I thought the other kid – I thought that my – my vagina, like, were bones.
Did it – and so where was the pain that you were feeling?---My vagina.
After this, Kylie said, the appellant called out for someone to come and get her, and she was taken out of the room.
The events the subject of this evidence formed the basis of count 5 on the indictment.
The cross-examination of Kylie focused on her memory of events. She said that she had always remembered the incident, but agreed that some of her memories 'only recently came back', including on the day of her giving evidence.[27] In that regard, it was put to her that she made no mention of the appellant rolling on top of Deanne even when being proofed by the State prosecutor a week prior to trial. Kylie said that she had mentioned it to him.[28]
[27] Trial ts 136, 146.
[28] Trial ts 146.
Kylie ultimately accepted that there were discrepancies between her evidence and an earlier statement she made to police. For example, the cross-examination included the following:[29]
[29] Trial ts 157 ‑ 158.
Well I'm just trying to say this to you, that your memory of this incident, it has changed over time. Not just once, but several times it has changed. Do you agree with that? Do you agree with me when I say that?---No. Not several times.
It has changed about whether [the appellant] rolled on top of [Deanne]. That's true, isn't it?---Yes.
It has changed about whether [the appellant's wife] brought you over to the house. That's true, isn't it?---Yes.
It's changed about whether you were in the lounge room and [Rachael] was there. That's true, isn't it?---Yes.
And hasn't this changed too, today you're saying that you always remembered this, but you just didn't talk to people about it. But when you spoke to police, you said that for a long time, you didn't remember these things and you only remembered it as an adult. That's changed too, because now you're saying you always remembered it, you just didn't tell people?---Yes, I always remembered it as a memory. And ---
Yes, that's what you're saying now?---What was the other bit?
The other one was you said I – for a long time, I didn't remember it. I only remembered it as an adult?---Yes. For a long time, I blocked it out. I didn't want to remember it.
…
Can I just go back … and I'm reading from your statement. I will read it to you, you said:
I didn't remember these things for a long time.
This is what you said to the police. It's only six months ago:
I didn't remember these things for a long time. I think I tried to forget, or I didn't want to think about it.
And my point is, that's different to what you're saying in this trial. It is different, isn't it? It's different to what you're saying in this trial. Do you agree?---Yes, I didn't remember at the time when I did the statement, that I didn't want to remember all that. But now - - -
Your evidence now is it wasn't just that you didn't remember it. You're saying you always remembered it, you just didn't want to talk to people about it, and maybe you didn't want to talk to yourself about it either, but you always remembered it. That's really what your evidence is today, isn't it?---Yes, I remembered bits and pieces of it, yes.
At the conclusion of the cross-examination, it was put to Kylie that the events that constituted count 5 on the indictment never occurred. She insisted that they did.[30]
Evidence of the appellant's sisters
[30] Ts trial 160.
Two of the appellant's sisters, Naomi Harding and Melanie Harding (not their real names), gave evidence.
Naomi Harding is the mother of Rachael and Kylie. She gave evidence that she lived in the same town as the appellant prior to 1999. She also gave evidence that Rachael and Kylie visited the appellant's house and that they had slept over there.[31] In cross-examination, Naomi confirmed that her daughters stayed at the appellant's house on 'a few' occasions.[32] She said that the kids went to the house without her, and gave evidence that she 'got the impression that [the appellant and his wife] didn't like adults there'.[33]
[31] Trial ts 172.
[32] Trial ts 175.
[33] Trial ts 176.
Melanie Harding is Deanne's mother. She gave evidence that Deanne lived in the same town as the appellant between the years 1995 and 2000. Melanie said that she left the town in 1997 or 1998, but that Deanne remained there with Melanie's parents.[34]
[34] Trial ts 191 ‑ 192.
During cross-examination, defence counsel made suggestions concerning potential family disagreements or tensions, but this line of questioning was not pursued.[35]
Police evidence
[35] Trial ts 195 ‑ 196.
The detective who had carriage of the investigation gave evidence in relation to the layout of the appellant's house and produced an electronic record of interview with the appellant (EROI). The appellant made no admissions in the EROI.[36]
Defence case at trial
[36] Trial ts 179 ‑ 186.
The appellant gave evidence and also called his wife to give evidence.
Appellant's evidence
The appellant denied all of the allegations against him, describing them as both 'unreal' and 'evil-minded'.[37]
[37] Trial ts 242.
In cross-examination, the appellant agreed that he lived in the town with his wife and her three daughters. He again denied having committed offences the subject of the indictment. He accepted that each of the complainants came over to his house to 'play with the girls', but denied that Rachael and Kylie ever came to the house without their mother.[38]
Evidence of the appellant's wife
[38] Trial ts 245.
The appellant's wife gave evidence of living with the appellant in the town. She said that Deanne sometimes visited the house to play with her children, but she denied that Rachael and Kylie ever visited the house without their mother, who she described as 'very protective'.[39] She also stated that none of the complainants had ever slept over at the house.[40]
[39] Trial ts 265.
[40] Trial ts 266.
In cross-examination, the appellant's wife also denied having ever walked into the bedroom to discover the appellant offending against either Rachael or Kylie. It was put to her that she once removed Rachael from the room, and said the words, 'No, no, not her', which she denied.[41]
Relevant trial directions
[41] Trial ts 273.
In addition to a number of standard directions of law, the learned trial judge gave the jury a number of directions in relation to their assessment of the evidence.
His Honour directed the jury, in accordance with Liberato v The Queen,[42] that even if they had difficulty accepting the appellant's evidence but think that it might be true, they must acquit him. The learned trial judge also directed the jury that even if they rejected the appellant's evidence, it did not follow that they could convict him. The question remained whether the State, on the basis of the evidence that the jury did accept, had proved the charges beyond reasonable doubt. His Honour gave a direction, in the same terms, in relation to the evidence of the appellant's wife.[43]
[42] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
[43] Trial ts 321 - 322.
The learned trial judge also gave the jury a detailed Longman[44] direction, which concluded:[45]
Because of the long delay, it is particularly important that you scrutinise the evidence of each of the complainants with special care. You are at liberty to act upon it, to find [the appellant] guilty of the count you are considering if, but only if, you are satisfied of the truthfulness and accuracy of the relevant complainant's evidence but it would obviously be dangerous to find [the appellant] guilty on the relevant complainant's evidence unless having scrutinised her evidence with great care, having considered the circumstances that are relevant to that evidence and taken full account of the warning that I have just given to you, you are satisfied beyond reasonable doubt as to the truthfulness and accuracy of that person's evidence.
[44] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
[45] Trial ts 330.
Finally, the learned trial judge directed the jury as to the permissible and impermissible uses of evidence given by the complainants in relation to conduct that was not reflected on any count on the indictment.
In that regard, his Honour directed the jury that the evidence given by Kylie as to the appellant's stepdaughters undressing and touching Deanne (see [42] above) was only led because they were an integral part of, and provided the immediate context to, the events that culminated in count 5 on the indictment. The learned trial judge directed the jury that they must not take that evidence into account in deciding whether the appellant was guilty of any of the offences charged, including by any form of propensity reasoning.[46] His Honour similarly said that the jury should disregard Deanne's evidence in relation to the other girls (see [25] above) as it was so lacking in detail that the jury could not have regard to it as establishing any conduct at all.[47]
[46] Trial ts 354.
[47] Trial ts 355.
The learned trial judge, however, did direct the jury that they could take into account Kylie's evidence that she observed the appellant 'raping' Deanne (see [42] above). His Honour directed the jury that they could take that evidence into account in determining whether the appellant had a sexual interest in Deanne and his young nieces and was willing to act on that interest. If the jury was satisfied of those matters, his Honour directed, they could take that inclination into account in determining the appellant's guilt of the offences charged. The learned trial judge stressed, however, that if they did find that the other conduct occurred, it did not automatically follow that the appellant was guilty of the offence they were considering.[48]
[48] Trial ts 355 - 357.
His Honour gave similar directions in relation to the use of the evidence in relation to one count, in relation to the proof of other counts. His Honour directed the jury that, if they were satisfied as to the proof of one count, they may take that conclusion into account in determining whether the appellant had a tendency or propensity to act on a sexual interest in his nieces when circumstances permitted. Again, his Honour emphasised that the jury could not use the evidence of any count upon which they found the appellant guilty in substitution for the evidence in relation to another count and that it did not follow that proof of one count could automatically lead to a conclusion of guilt on another count.[49]
[49] Trial ts 357 - 359.
In relation to all of the directions as to propensity reasoning (either the uncharged conduct in relation to Deanne or the use of proven counts in relation to other counts), the learned trial judge directed the jury that they must be satisfied beyond reasonable doubt that the particular conduct occurred, and beyond reasonable doubt that it established the relevant tendency or propensity.
Conviction appeal – ground of appeal
The sole ground of appeal in the conviction appeal contends that the verdicts of guilty were unreasonable and cannot be supported having regard to the evidence. No complaint is made in relation to any of the trial judge's directions, including the Longman direction and the directions in relation to what may be described as propensity reasoning referred to at [64] to [66] above.
Conviction appeal – legal principles
The principles governing such a ground of appeal are well known. They were summarised by this Court in Sturniolo v The State of Western Australia, as follows:[50]
[50] Sturniolo v The State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA).
(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5) The question for the appeal court is whether, upon its examination of the record – by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court 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 appeal court must set aside the verdict.
(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
The principles described in (4) to (6) of this summary reflect the functional demarcation between the province of the jury and the province of an appellate court.[51] As the High Court emphasised in Pell v The Queen, the assessment of the credibility of a witness by a jury on the basis of what it has seen and heard in the context of the trial is within the province of a jury as representative of the community.[52] For that reason:[53]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence … proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[51] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 (Pell v The Queen) [37] - [38].
[52] Pell v The Queen [37].
[53] Pell v The Queen [39].
We turn then to the inconsistencies, discrepancies and other inadequacies that the appellant submits, in combination, should lead the members of this Court to have a reasonable doubt as to the appellant's guilt.
Conviction appeal – alleged inconsistencies, discrepancies and other inadequacies identified by the appellant
The appellant's submissions were not particularly clear in relation to the inconsistencies, discrepancies and other inadequacies relied upon by the appellant in relation to the conviction appeal. A good deal of the submissions consisted merely of a recitation of parts of the witnesses' evidence.
Nevertheless, it is tolerably clear that the appellant relied upon the following matters.
In relation to counts 1 and 2, the appellant submitted that:[54]
(a)Deanne inconsistently said that she was sexually assaulted 'throughout the time' she had gone to the appellant's house and then that it had happened 'only once'; and
(b)Deanne gave unclear evidence as to who was in the room with her at the time that counts 1 and 2 were alleged to have occurred.
[54] Appellant's submissions [4] - [6].
In relation to counts 3 and 4, the appellant referred to:
(a)a number of matters in relation to which Rachael's memory was poor, including as to whether she was doing 'flips' on the bed at the time of count 3 and her memory of the 'DCP lady';[55] and
(b)differences in the evidence of the appellant, his wife, and the other witnesses (including Naomi Harding) as to whether Rachael and Kylie visited the appellant's house and had slept over there.[56]
[55] Appellant's submissions [7] - [34].
[56] Appellant's submissions [35] - [72].
In relation to count 5, the appellant referred to:[57]
(a)the matters in relation to which Kylie's memory was poor, including the matters set out at [46] to [47] above; and
(b)the differences in the evidence as to whether Rachael and Kylie visited the appellant's house and had slept over there.
Conviction appeal – disposition
[57] Appellant's submissions [84] - [124].
In accordance with the High Court's decision in Pell v The Queen, we proceed upon the assumption that the evidence of each of the complainants was assessed by the jury to be credible and reliable. In light of that assumption, we are not satisfied that the matters relied upon by the appellant, either individually or collectively, are such that, notwithstanding that assessment, the jury, acting rationally, ought nonetheless have entertained a reasonable doubt as to proof of the appellant's guilt of the offences for which he was convicted.
We have independently assessed the sufficiency and quality of the evidence before the jury in relation to each of the offences, recognising that each conviction must be considered separately. We are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the offences.
Before turning to the alleged inconsistencies, discrepancies or inadequacies identified by the appellant in relation to the evidence of the offences, it is appropriate to make a number of general observations.
First, there is no doubt that there was a considerable delay between the allegations the subject of the charges and when those allegations were brought to the appellant's attention. Over two decades elapsed between the period during which the charges were alleged to have been committed (1998 and 1999) and the trial. The long delay in this case had, and has, two important consequences.
On one hand, the delay meant that it was necessary for the jury to carefully scrutinise the complainants' evidence as to both its credibility and reliability before being satisfied that the State had proven the charges beyond reasonable doubt. The learned trial judge's detailed Longman direction, in relation to which there is no complaint on appeal, impressed upon the jury the need to take such care in the present case. The assumption (in accordance with Pell v The Queen) that the jury assessed each of the complainants' evidence to be credible and reliable also carries with it the assumption that the jury were true to their oaths and obeyed the trial judge's direction in that regard.[58]
[58] As to which see Taylor v The State of Western Australia [2020] WASCA 113 [78] (Mazza, Mitchell & Beech JJA).
At the same time, the long delay is such that, in independently assessing the sufficiency and quality of the evidence of each of the offences, it should not be at all surprising, to the judges of this Court, that there may be gaps, even significant gaps, in the recollections of the witnesses and that the witnesses' memories will be fallible on matters of detail. Indeed, it would be a cause for concern if it were otherwise. That is, in a case in which the evidence concerns events that occurred decades earlier, at a time when the principal witnesses were young children, a 'perfect' or 'photographic' recollection of the events on the part of those witnesses would invite greater misgivings than a recollection which displays the inevitable effects of time on both perception and memory.
The second general observation we would make concerns the potential use that the jury may have made of the propensity evidence referred to at [64] to [66] above. In that regard, there is no issue on appeal that the jury were entitled to have regard to evidence of sexual conduct by the appellant towards his nieces as relevant to whether he had a tendency or propensity to act on a sexual interest in his nieces when circumstances permitted. The jury was, in turn, entitled to have regard to such a tendency or propensity in assessing the likelihood that the appellant had committed the particular offences charged.
In that context, we would observe that the propensity directions given by the learned trial judge in the present case, while entirely orthodox at the time that they were given, were in fact more favourable to the appellant than the law requires. In the present case, as we have said, the learned trial judge directed the jury that before they could use evidence of any conduct (whether the subject of a charge or not) as propensity evidence, they must be satisfied beyond reasonable doubt that the particular conduct occurred. As the High Court's recent decision in Director of Public Prosecutions v Roder[59] has made clear, an alleged tendency or propensity is an intermediate fact which need not be proved beyond reasonable doubt (unless it is indispensable to proof of guilt).[60] The trial judge's direction in the present case to the effect that the jury must be satisfied that evidence relied upon as propensity evidence must be proved beyond reasonable doubt, which was given in accordance with what was generally understood to be the law in this State at the time, was therefore favourable to the appellant.
[59] Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 98 ALJR 644 (Roder).
[60] Roder [24], [26] - [28], [31] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot & Beech-Jones JJ).
Having regard to the evidence as a whole, including the significant delay, none of the inconsistencies, discrepancies or other inadequacies identified by the appellant give rise to a doubt in our minds that is not readily resolved by the jury's advantage in seeing and hearing the evidence. Indeed the matters relied upon by the appellant do not give rise to a reasonable doubt in our minds as to the appellant's guilt.
In that regard, we will briefly address, as we must, the offences separately.
Deanne Mason's evidence in relation to the offending against her was in our view clear in its essential details: who she was living with at the time (her grandmother), where she was living, the layout of the appellant's house, the location of the offending in the house and what the appellant did to her. She was also clear that there were other girls present at the time, although she could not be precise as to who or how many. That is, in our view, an entirely understandable detail to have faded in her memory.
A number of the surrounding details in Deanne's account were corroborated by Deanne's mother, Melanie Harding, who confirmed that Deanne was living with her parents (i.e. Deanne's grandparents) at the relevant time and by the appellant's wife, who confirmed that Deanne visited their house to play with her daughters.
The inadequacies referred to by the appellant in relation to Deanne's evidence were not, in our assessment, inadequacies at all. First, she did not, as the appellant submitted, suggest that she had been sexually assaulted continuously (or 'throughout') the period that she lived in the town near the appellant. Her evidence was clear, in context, that her account of the offending was of a single incident that happened at one time during (i.e. 'throughout') her many visits to the appellant's house.
Based on the evidence as a whole, it is possible, in our view, that Deanne was mistaken in her recollection that the appellant had only sexually or indecently dealt with her once. Kylie's evidence that she observed an occasion upon which the appellant rolled on top of Deanne and was 'raping' her (see [42] above), if accepted by the jury, could have been regarded by it as another such occasion. The fact that Deanne might have no recollection of that occasion was no doubt a matter for the jury to take into account in assessing her credibility and reliability. But it did not, and it does not, require rejection of her account of the offending the subject of counts 1 and 2. There may be many explanations, including trauma and the passage of time, for a witness to reliably remember one such event but not another.
As we have already said, the alleged 'inadequacy' in relation to Deanne's evidence concerning the number of persons in the room at the time of the offending was, in our assessment, entirely unremarkable.
Rachael Cooke was adamant and unwavering in relation to her evidence as to the offending the subject of counts 3 and 4. The alleged inadequacies in her evidence related to her recollection of surrounding details, such as whether she was doing 'flips' on the bed at the time of count 3 and her memory (which consisted only of 'glimpses') of the 'DCP lady'. That Rachael's memory of those matters was poor was not such as to cast any reasonable doubt as to the reliability of her account of the offending behaviour itself. On the contrary, her candid acceptance of those matters in relation to which her recollection was indeed poor were capable of bolstering her credibility generally.
As the appellant submits, his wife gave evidence that neither Rachael nor Kylie ever visited their house without their mother being present. It is correct to say that a finding of guilt in relation to the offending against Rachael and Kylie required that the jury reject the evidence of the appellant's wife. This was made clear to the jury which, as noted above, were, in effect, given a Liberato direction in relation to the evidence of the appellant's wife (see [60] above).
On the basis of the trial record it was, in our assessment, well open to the jury to reject the evidence of the appellant's wife. Not only was that evidence, of course, inconsistent with that of Rachael and Kylie, it was also inconsistent with the evidence of their mother, Naomi Harding, who gave evidence that Rachael and Kylie visited the appellant's house and they had slept over there.
In addition, there was evidence from Rachael, which it was open to the jury to accept, that the appellant's wife witnessed the offending the subject of count 3, or was at least aware that the appellant was engaged in inappropriate conduct, when she burst into the room and yelled, 'No, no, no, not her' (see [34] above). If that evidence was accepted by the jury, it would have provided a powerful basis for concluding that the appellant's wife had a self-interested motivation to minimise any opportunity that the appellant would have had to offend against his nieces.
Kylie Cooke gave a vivid description of the offending the subject of count 5. It was well open to the jury to conclude, in particular, that Kylie's evidence that, as a 6‑year‑old child, she told the appellant that her 'bones are breaking', when he was sexually penetrating her vagina with his penis, was a compelling and lived memory of what had occurred.
Kylie accepted in cross-examination that there were a number of changes to her account of events, and indeed her recollection, over time, although she insisted that the offence itself occurred. The inadequacies in her evidence in relation to the surrounding circumstances were certainly a matter in relation to which the jury was required to give weight in carefully scrutinising her evidence, in accordance with the Longman direction that they were given. There is no reason to suppose that the jury did not do so.
Considering that evidence independently, we are not satisfied that the jury acting rationally ought nonetheless have entertained a reasonable doubt by reason of those inadequacies. Those matters do not give rise to a reasonable doubt in our minds as to the appellant's guilt on count 5. The whole of the evidence, in our assessment, comfortably established that the appellant had ample opportunity to commit the offence and, having regard to the evidence of all of the complainants, it was well open to the jury to conclude that the appellant did indeed have a sexual interest in his young nieces and was willing to act on that interest. That propensity, if accepted by the jury, while not indispensable to proof of guilt on count 5, was in our assessment, a circumstance which made the appellant's commission of that particular offence more likely.
There was nothing in the evidence, and in particular Kylie's evidence, such that the jury must have entertained a reasonable doubt about the appellant's guilt on count 5.
For these reasons, we are not satisfied that there is a significant possibility that an innocent man has been convicted in relation to any of the counts on the indictment.
We would refuse leave to appeal in the conviction appeal and dismiss the appeal.
That being the case the extension of time within which to appeal should also be refused, as it would serve no useful purpose.
Sentence appeal
As noted above, the learned trial judge sentenced the appellant to a total effective sentence of 10 years imprisonment. The sentences for the individual offences (together with their concurrency or cumulacy) are as follows:
Count 1
3 years imprisonment
Cumulative
Count 2
3 years imprisonment
Concurrent
Count 3
3 years imprisonment
Cumulative
Count 4
9 months imprisonment
Concurrent
Count 5
4 years imprisonment
Cumulative
In addition to the orders for concurrency in relation to the sentences with respect to counts 2 and 4, the learned trial judge stated that, for reasons of totality, he had reduced the sentences for counts 1, 2 and 3 from 5 years imprisonment to 3 years imprisonment and had reduced the sentence for count 5 from 6 years and 6 months imprisonment to 4 years imprisonment.
Sentencing remarks
In his sentencing remarks, the learned trial judge set out the facts of the offending in relation to each of the victims and made a number of findings in relation to the seriousness of the offences.
In relation to the offences against Deanne Mason (counts 1 and 2), his Honour observed that her vulnerability was demonstrated by the fact that she was about six or seven years old and was living apart from her parents (i.e. with her grandparents). His Honour also found that the offending was aggravated by having been committed in the presence of other children. The learned trial judge also expressly referred to Deanne's victim impact statement, detailing the effect that the offending had had on her life.
In relation to the offences against Rachael Cooke (counts 3 and 4), the learned trial judge found that she was about eight years of age when the offending occurred. His Honour accepted that, at the time of the offending the subject of count 3, the appellant's wife burst into the room and that the offending occurred in the presence of other children. Rachael's vulnerability, the learned trial judge found, was underscored by the fact that the protection that she should have been able to expect by the appellant's wife being in the house at the time was not available to her.
In relation to count 5, committed against Kylie Cooke, his Honour said that he could not be satisfied beyond reasonable doubt that Deanne was present at the time of the offence. His Honour was, however, satisfied that somebody put her into the wardrobe as she had said, and he observed that she was between five and six years of age at the time (the youngest of the victims). In light of the fact that Kylie was the youngest victim, and the pain that she described, the learned trial judge found that count 5 was the most serious of the offences.
In relation to the appellant's personal circumstances, the learned trial judge observed that he was 60 years old at the time of sentence (having been between 37 and 38 at the time of the offending) and had been married for 23 years. His Honour said that the appellant had limited previous convictions and that there was not an accentuated need for personal deterrence.
The only real mitigation available to the appellant was that, throughout his life, he had demonstrated a good work ethic. The appellant had demonstrated no remorse and there was nothing to suggest that his age or state of health would result in imprisonment being any more onerous to him than on anyone else. In that context, his Honour noted, in any event that in cases such as the present, matters personal to the appellant were of less mitigatory weight than might otherwise be the case and that the primary sentencing considerations were personal and general deterrence.
Sentence appeal – ground of appeal
The sole ground of appeal against sentence is, in effect, that the total effective sentence of 10 years imprisonment offended the totality principle. While encompassed within a single ground, the ground of appeal sought to invoke both limbs of the totality principle.
In relation to the first limb of the totality principle – namely whether the total effective sentence imposed for the multiple offences bears a proper relationship to the overall criminality involved, the appellant referred to three previous decisions of this Court which, in his submission, demonstrated that the total effective sentence in the present case was contrary to the total effective sentences imposed in comparable cases: MHE v The State of Western Australia,[61] NE v The State of Western Australia,[62] and The State of Western Australia v CGT.[63]
[61] MHE v The State of Western Australia [2019] WASCA 133 (MHE).
[62] NE v The State of Western Australia [2021] WASCA 172 (NE).
[63] The State of Western Australia v CGT [2018] WASCA 226 (CGT).
In relation to the second limb of the totality principle – namely that the court should not impose a 'crushing' sentence – the appellant relied upon his age at the time of sentencing and the generally reduced life expectancy for Aboriginal men. Based on those matters, the appellant submitted that he would have little useful life left after release from the prison.
Sentence appeal – legal principles
The legal principles governing appeals contending that the total effective sentence infringes the totality principle are well established.
The first limb of the totality principle relevantly requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[64]
[64] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
The range of sentences imposed in other cases does not establish the bounds of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children, given the wide variety of combinations of offending conduct involved in such offending. As this Court observed in CAND v The State of Western Australia:[65]
[B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion. For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant.
[65] CAND v The State of Western Australia [2018] WASCA 101 [48] (Martin CJ, Beech JA & Hall J).
To similar effect, in Pennetta v The State of Western Australia, Hall J (as his Honour then was) observed:[66]
Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (authorities omitted)
[66] Pennetta v The State of Western Australia [2013] WASCA 234 [39] (Hall J).
The principles governing the second limb of the totality principle are also well-settled. In Wark v The State of Western Australia, this Court said:[67]
The second limb of the totality principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age.
However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.
So, the second limb of the totality principle is not absolute. There are cases in which an offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time that would permit them to enjoy their remaining life.
As a matter of fact, it is unusual for a total effective sentence to be reduced because it infringes the second limb of the totality principle. Even in circumstances where an offender is of advanced age, that fact alone does not necessarily require a reduction in sentence. (citations omitted)
[67] Wark v The State of Western Australia [2023] WASCA 66 [636] - [640] (Buss P, Mazza & Vaughan JJA).
These principles were cited with approval in Moore v The State of Western Australia.[68] Significantly in that case, the Court recognised that the second limb of the totality principle is 'founded on mercy' and that '[b]ecause every exercise of mercy will depend on the individual facts of the case, little is to be gained by an examination of other cases'.[69]
Sentence appeal – disposition
[68] Moore v The State of Western Australia [2023] WASCA 156 (Moore).
[69] Moore [90] - [91] (Quinlan CJ, Hall JA & Mullins AJA).
For the reasons that follow, in our view, the total effective sentence in the present case did not arguably breach either limb of the totality principle. We would refuse leave to appeal on the sole ground of appeal in the sentence appeal.
The statutory maximum penalty for each of counts 1, 2, 3 and 5 was 20 years imprisonment and the statutory maximum penalty for count 4 was 10 years imprisonment. They were all serious offences.
The overall criminality in the appellant's offending was very high indeed. The appellant sexually abused three of his young nieces, for his own sexual gratification, with remarkable brazenness. The offences (other than count 4) were all committed in the presence of a number of young girls – including his own stepdaughters – and, on at least one occasion while the appellant's own wife was in close proximity. The devastating effect that the offending would have had on the victims is obvious and is attested to by the victim impact statements of Deanne and Kylie, which we have read but will not repeat.
Offending of this kind – by a relative, in the presence of others, in a place that ought to be safe and protective – can, and in this case did, have effects that pervade the entirety of a victim's life. The offending not only inflicts its own direct harm, in the form of its physical, sexual and emotional violation, but it also robs the victim of the very things that are required to address that harm: the support and protection of family and the sanctuary of a home environment.
That the appellant fell to be sentenced for violating not one, but three, of his young relatives in this way made this case a very serious example of its type.
The individual offences themselves, while relatively low in number compared with some cases that come before this Court, involved multiple kinds of sexual penetration that were both confusing and painful to the young victims. No complaint is made on the appeal in relation to the individual sentences for the various offences. Nor could there be. The individual sentences, particularly after the reductions made by the learned trial judge for totality, may properly be described as modest. The fact that there were three victims meant that it was inevitable that there be some accumulation of those individual sentences.
Against the objective seriousness of the offending, there was very little by way of mitigation for the appellant. He did not have the benefit of pleas of guilty or the acceptance of responsibility. He had no remorse whatsoever. And while he was, at 60 years of age, a mature (but by no means elderly) man at the time of sentencing, that was largely due to the fact that his offending went undisclosed and unpunished for such a long period of time. As we will come to in the context of the second limb of the totality principle, the appellant's mature age afforded him little, if anything, by way of mitigation.
In all of the circumstances in our view there was nothing unreasonable or plainly unjust about the total effective sentence of 10 years imprisonment.
The previous decisions of this Court relied upon by the appellant do not suggest otherwise.
In MHE, which was relied upon by the appellant, Mitchell and Beech JJA undertook a comprehensive analysis of sentences imposed in a large body of previous decisions concerning the sexual abuse of children. Their Honours' analysis built upon the reviews of previous decisions in VIM v The State of Western Australia[70] and The State of Western Australia v Prince.[71] In those earlier cases, the Court had identified ranges of sentences for offenders who pleaded guilty in broadly comparable cases as ranging from 6 years and 8 months imprisonment to 12 years and 8 months imprisonment (in VIM) and 4 years and 2 months imprisonment to 12 years and 6 months imprisonment (in Prince). As this Court has repeatedly noted, sentences for offences of this type have 'firmed up' since VIM.[72]
[70] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 (VIM).
[71] The State of Western Australia v Prince [2011] WASCA 22 (Prince).
[72] Newton v The State of Western Australia [2023] WASCA 7 [58] (Quinlan CJ, Beech & Hall JJA).
In MHE itself, there were a very large number of offences (87 in total) in relation to three victims, for which the appellant was resentenced by this Court to a total effective sentence of 10 years imprisonment. In that case, however, there were some significant differences in the individual offences compared to the present case: the offending did not involve penile/vaginal penetration or penile/anal penetration and, in relation to one of the victims, the offending consisted of a single offence of indecent dealing 'towards the lower end of the range of seriousness' for such offences involving a de facto child.[73]
[73] MHE [66] (Mitchell & Beech JJA).
More significantly, in MHE, as in the cases reviewed in VIM and Prince, the offender had the significant mitigation of pleas of guilty, the importance of which, in a case of sexual offending against children cannot be underestimated. As this Court observed in LYN v The State of Western Australia,[74] and has often confirmed, the public interest in avoiding the risk of further trauma and psychological harm to the victims of sexual offending against children is of such significance as to justify substantial discounts for pleas of guilty in cases where that occurs. Comparison of cases involving guilty pleas in a case such as the present is therefore unlikely to yield much in the way of assistance.
[74] LYN v The State of Western Australia [2019] WASCA 45 [51] (Mazza, Mitchell & Beech JJA).
For similar, and additional, reasons the decision in NE, also relied upon by the appellant, provides no assistance. In NE the appellant was sentenced to a total effective sentence of 8 years and 6 months imprisonment for serious and prolonged offending against a single victim. In that case, again, however, the appellant had pleaded guilty, was remorseful and was given a discount of 20% under s 9AA of the Sentencing Act 1995 (WA). Most significantly, the sentence imposed in NE was substantially reduced to take account of the fact that the appellant suffered from a severe physical disability (tetraplegia) which rendered him almost entirely dependent on others for his care and which meant that the impact of imprisonment on him would be very much greater than the impact on other prisoners. The Court was satisfied that imprisonment for the appellant in that case presented a 'dismal existence'.[75]
[75] NE [52] (Quinlan CJ, Mazza & Mitchell JJA).
The facts and circumstances in NE are, in our view, so far removed from those in the present case as to render it, relevantly, incomparable.
The other decision relied upon by the appellant, CGT, did concern a total effective sentence imposed after trial. The offender in that case was convicted of seven counts of sexual penetration against his granddaughter, who was between five and six years of age at the time. Following a State appeal, this Court resentenced the offender to a total effective sentence of 8 years and 9 months imprisonment.
There are some similarities between CGT and the present case. The number of offences was broadly similar (although there were two more offences in CGT), the individual offences also involved both penile and digital penetration of the victim's vagina and the relationship between the offender and the victim involved a breach of trust.
Nevertheless, there are a number of matters that serve to distinguish CGT from the present case. The appellant's offending, as has been noted, involved not one, but three, young victims all of whom were related to the appellant. The multiple victims in the present case immediately adds to the overall criminality of the appellant's offending, that had to be reflected in the total effective sentence. The present case also had the additional aggravating factor that the offences of sexual penetration were all committed in the presence of others.
Moreover, in CGT, the offender was 76 years of age at the time of sentencing and suffered from a number of health conditions (hypertension, chronic obstructive airways disease and urological issues). While the offender's age and medical conditions in that case were not such as to result in imprisonment being significantly more onerous, his advanced age was nevertheless recognised as a relevant factor in that case.
Having regard to these similarities, and the differences, the total effective sentence imposed in CGT is, in our view, broadly consistent with the total effective sentence in the present case. It certainly does not suggest any implied error on the part of the learned trial judge in this case.
In relation to the second limb of the totality principle, as noted above, the appellant relied upon his age at the time of sentencing (60 years) and the generally reduced life expectancy for Aboriginal men. In that respect, the appellant referred to general statistics in relation to life expectancy produced by the Australian Bureau of Statistics.
For the purposes of sentencing, general statistics such as these are unlikely to be of any real use unless they are related, in some way, to the circumstances of the individual offender. For example, the life expectancy statistics referred to by the appellant were life expectancy tables estimated from birth, rather than the life expectancy of persons who have already attained the age of 60 years. As this Court observed in OTRv The State of Western Australia [No 2],[76] references to life expectancy at the time of birth, as opposed to the time of sentence, involve the wrong inquiry.
[76] OTRv The State of Western Australia [No 2] [2022] WASCA 123 (OTR) [90] (Buss P, Mazza & Vaughan JJA).
As it is, there is nothing to suggest that the appellant is, by reason of his age or state of general health, at any risk of a shortened life span. It hardly needs to be said, but 60 years cannot be regarded as an advanced age. This Court has held that an offender aged 68 or 69 at the time of sentencing could not be said to be of a very advanced age.[77] The appellant will be that age, or younger, when he is eligible for release on parole.
[77] OTR [89] (Buss P, Mazza & Vaughan JJA).
In any event, even accepting that 60 years is a mature age, as this Court said in CGT:[78]
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial portion of the period of life which is left to an offender of advanced age. However, whether leniency should be given to an offender of advanced age and, if so, to what extent, depends on all the facts and circumstances of the particular case. Age is only one factor in the sentencing process, and advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate.
[78] CGT [79] (Buss P, Beech & Hall JJA).
In the present case, the appellant's offending occurred when he was 37 and 38 years of age. The fact that he is now in his sixties as he serves his sentence is a consequence of the fact that, for over 20 years, he enjoyed undeserved liberty while his offending went undisclosed and unpunished. It does not now afford him any claim to leniency, nor does it lead to the conclusion that his total effective sentence is crushing.
We would refuse leave to appeal in the sentence appeal and dismiss the appeal. The application for an extension of time within which to appeal should also be refused.
Conclusion
For the foregoing reasons, in both the conviction appeal and the sentence appeal we would make the following orders:
1.The application for an extension of time within which to appeal is refused.
2.The application for leave to appeal is refused.
3.The appeal is dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MPS
Research Associate to the Hon Chief Justice Quinlan
13 JANUARY 2025
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