VIM v The State of Western Australia
[2005] WASCA 233
•2 DECEMBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: "VIM" -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 233
CORAM: WHEELER JA
ROBERTS-SMITH JA
MILLER AJA
HEARD: 2 AUGUST 2005
DELIVERED : 2 DECEMBER 2005
FILE NO/S: CACR 10 of 2005
BETWEEN: "VIM"
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 38 of 2005
BETWEEN :THE STATE OF WESTERN AUSTRALIA
Appellant
AND
"VIM"
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FRENCH DCJ
File No :IND 1288 of 2001
Catchwords:
Appeal - Criminal law and procedure - Joinder of charges of sexual offences against two female complainants - Offences against children by stepfather - Severance - Application for separate trials - Whether similar fact or propensity evidence - Whether evidence in relation to offences against one complainant admissible in relation to offences against other
Appeal - Criminal law and procedure - Application for separate trials - Whether prejudicial effect of similar fact or propensity evidence likely to outweigh its probative value - Principles applying to determination of admissibility of propensity evidence and joint trial of multiple charges of offences against two complainants
Appeal - Criminal law and procedure - Convictions of sexual offences - Whether verdicts inconsistent with verdicts of acquittal
Appeal - Criminal law and procedure - Jury - After third day of trial juror advised she was acquainted with son of accused in acrimonious circumstances - Juror discharged - Whether reasonable perception of bias of other jurors - Whether miscarriage of justice
Criminal law and procedure - State appeal against sentence - Aggregate sentence of 6 years' imprisonment for 31 separate sexual offences against two stepdaughters over eight years - Need for general deterrence - Whether undue weight on factors personal to offender - Whether sentences manifestly inadequate - Whether overall sentence reflected overall criminality
Legislation:
Criminal Code (WA), s 585
Criminal Procedure Act 2004 (WA), s 133
Evidence Act 1906 (WA), s 31A
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Category: A
Representation:
CACR 10 of 2005
Counsel:
Appellant: Mr T F Percy QC & Ms K J Everett
Respondent: Mr S E Stone & Ms L Petrusa
Solicitors:
Appellant: W L & K J Everett
Respondent: State Director of Public Prosecutions
CACR 38 of 2005
Counsel:
Appellant: Mr S E Stone & Ms L Petrusa
Respondent: Mr T F Percy QC & Ms K J Everett
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: W L & K J Everett
Case(s) referred to in judgment(s):
B v The Queen [2002] WASCA 236
Bell v The Queen [2001] WASCA 40
Bishop v The Queen [2002] WASCA 79
Bosworth v The Queen [2004] WASCA 43
Boudville v The Queen [2001] WASCA 133
Broome v The Queen [1999] WASCA 202
Chinnery v The Queen [2000] WASCA 295
Clegg v The Queen [2000] WASCA 326
Cook v The Queen (2000) 22 WAR 67
D v The Queen [2003] WASCA 33
De Jesus v The Queen (1986) 61 ALJR 1
DeLuce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dinsdale v The Queen (2000) 202 CLR 321
Director of Public Prosecutions v P [1991] 2 AC 447
Donaldson v The State of Western Australia [2005] WASCA 196
Edwards v The Queen [2001] WASCA 263
Germain v The State of Western Australia [2004] WASCA 293
Hoch v The Queen (1988) 165 CLR 292
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
Jones v The Queen (1997) 191 CLR 439
Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999
King v The Queen [2001] WASCA 103
Lawrence v The State of Western Australia [2005] WASCA 14
Liddington v The State of Western Australia (2005) 152 A Crim R 502
Little v The Queen [2000] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665
LSC v The Queen [2003] WASCA 303
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
Makin v Attorney‑General for New South Wales [1894] AC 57
Marris v The Queen [2003] WASCA 171
Merino v The Queen [2003] WASCA 18
MFA v The Queen (2002) 213 CLR 606
Morley v The Queen [2001] WASCA 49
Pearce v The Queen (1998) 194 CLR 610
Pendleton v The Queen [2002] WASCA 4
Pfennig v The Queen (1995) 182 CLR 461
Playle v The Queen [2004] WASCA 86
Price vThe Queen (1988) 33 A Crim R 359
R v Avery [2002] WASCA 136
R v Bekink (1999) 107 A Crim R 415
R v Boardman [1975] AC 421
R v Chilvers [2003] WASCA 87
R v CW (2000) 111 A Crim R 287
R v Dalgety [2000] WASCA 10
R v Dickens (2004) 147 A Crim R 343
R v EPR [2001] WASCA 214
R v Ginder (1987) 23 A Crim R 1
R v GP (1997) 18 WAR 196
R v Hough [2002] WASCA 42
R v Hunt [2002] WASCA 324
R v Major [2001] WASCA 46
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
R v PMT (2003) 8 VR 50
R v Podirsky (1989) 43 A Crim R 404
R v Western [2001] WASCA 194
R v Whitehead [2000] NSWCCA 400
Rodway v The Queen (1990) 169 CLR 515
Rogers v The Queen [2004] WASCA 147
S v The Queen [2001] WASCA 245
S v The Queen [2004] WASCA 113
Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992
State of Western Australia v ABM [2004] WASCA 90
State of Western Australia v DMS [2004] WASCA 255
State of Western Australia v Henderson [2005] WASCA 89
Stickland v The Queen [2002] WASCA 339
Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990
TJD v The State of Western Australia [2004] WASCA 310
Trescuri v The Queen [1999] WASCA 172
Webb v The Queen (1994) 181 CLR 41
Wong v The Queen (2001) 207 CLR 584
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
Bell v The Queen [1982] Qd R 216
BRS v The Queen (1997) 191 CLR 275
Crofts v The Queen (1996) 186 CLR 427
David Syme & Co Ltd v Swinburne (1909) 10 CLR 43
Duncan v The Queen (1983) 47 ALR 746
Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
Fairclough v The Queen (1995) 12 WAR 103
Green v The Queen, unreported; CCA SCt of WA; Library No 970052; 20 February 1997
Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
House v The King (1936) 55 CLR 499
Melbourne v The Queen (1999) 198 CLR 1
Phillips v The Queen [2005] HCA Trans 455
R v Boyle (1987) 34 A Crim R 202
R v Bright (2000) 114 A Crim R 466
R v Connell (No 1) (1992) 8 WAR 518
R v Correia (1996) 15 WAR 95
R v Cranston [1988] 1 Qd R 159
R v Demirok [1976] VR 244
R v Gibb & McKenzie [1983] 2 VR 155
R v Glennon (1992) 173 CLR 592
R v Markuleski (2001) 52 NSWLR 82
R v Melville (2003) 27 WAR 224
R v S (2001) 125 A Crim R 526
R v Schmahl [1965] VR 745
R v Wedd (2000) 115 A Crim R 205
S v The Queen (1989) 168 CLR 266
Simic v The Queen (1980) 144 CLR 319
Sloane v The Queen (2004) 35 SR (WA) 121
Sutton v The Queen (1984) 152 CLR 528
Trimboli v The Queen (1979) 21 SASR 577
Wagenaar v The Queen [2000] WASCA 325
Winning v The Queen [2002] WASCA 44
JUDGMENT OF THE COURT: This is another case which is importantly affected by changes to the relevant law between its inception and its resolution following trial.
The appellant was indicted on 44 counts of sexual abuse against two complainants, "L" (counts 1 ‑ 31 inclusive) and "J" (counts 32 ‑ 44 inclusive).
On 5 December 2003 an application for an order for separate trials was argued in the District Court before his Honour Judge H H Jackson DCJ.
On 16 January 2004 his Honour dismissed the application and gave reasons.
Following trial before her Honour Judge French and a jury between 18 January and 2 February 2005, the appellant was convicted in relation to the complainant L, of 10 counts of rape, contrary to s 325 of the Criminal Code 1913 (WA) ("the Code") (counts 1, 7, 8, 10, 13, 20, 23, 25, 26 and 29) and 10 counts of indecent assault contrary to s 328 of the Code (counts 6, 9, 12, 16, 17, 18, 19, 21, 22 and 24). He was convicted in relation to the complainant J of one count of rape (count 34), three counts of indecent assault, contrary to s 324B of the Code (counts 35, 38 and 40) and seven counts of sexual penetration without consent contrary to s 324D of the Code (counts 36, 37, 39, 41, 42, 43 and 44).
The jury returned verdicts of acquittal in relation to the complainant L on five counts of rape (counts 2, 5, 11, 14 and 27), three counts of indecent assault (counts 15, 28 and 30), one count of sexual penetration without consent and two counts of indecent dealing of a child under 14 years (counts 3 and 4). In relation to the complainant J, the jury returned verdicts of acquittal on two counts of indecent dealing with a child under 14 years (counts 32 and 33).
The verdicts of acquittal in respect of counts 3, 4 and 15 were returned by direction of her Honour.
On 16 March 2005 the appellant was sentenced to a total of 6 years' imprisonment with eligibility for parole backdated to 2 February 2005.
The appellant's application for leave to appeal against conviction was filed on 22 February 2005; the State's notice of appeal against sentence was filed on 30 March 2005.
There were six grounds of appeal against conviction. Grounds 3 (failure to consider whether reasonable possibility of concoction) and 5 (inadequate direction on evidence of appellant's good character) were subsequently abandoned. The remaining grounds are:
"GROUND ONE: SEPARATE TRIALS: WERE THERE ANY SIMILAR FACTS?
1.The learned trial judge erred in ordering a joint trial of all the counts in the indictment on the basis of similar fact evidence, there being no evidence which at law was capable of being similar fact evidence.
PARTICULARS
a)To be admissible as evidence of similar fact rather than mere propensity the evidence on any given count needed to have such a striking similarity to another count that it was unlikely that the two offences could have been committed by other than the same person.
b)The Crown conceded at the joint trials application that there was no strikingly similar feature that would justify a joint trial.
c)The evidence of the Accused's relationship with both girls was effectively sought to be led as propensity evidence only.
d)There were no two counts identified which would have justified a joint trial on the basis of similar fact evidence.
e)The indictment should have been split to allow a separate trial for the counts relation to each of the two complainants.
GROUND TWO: SEPARATE TRIALS - PREJUDICIAL EFFECT AND PROBATIVE VALUE
2.The learned judge who heard the separate trials application erred in ordering a joint trial of all the counts in the indictment, the prejudicial effect of similar fact evidence at such a trial being likely to outweigh its probative value.
PARTICULARS
a)The 31 counts relating to the complainant LB should have been the subject of a separate trial to those 12 counts relating to the complainant JM.
b)The Prosecution conceded that there would be significant prejudice to the Accused by the evidence to be led at a joint trial but contended that this was outweighed by the probative value of the similar fact evidence.
c)His Honour erred by failing to:
(i)have sufficient regard to, the degree of prejudice that would result from the joinder of the counts compared to the probative value of the similar fact evidence; and
(ii)failed to make any finding to this effect.
d)His Honour erred in giving significant weight to various 'practical' advantages of having a joint trial, which matters were secondary to a consideration of the prejudice that would result to the accused from the evidence led at such a trial compared to its probative value.
…
GROUND FOUR: SEPARATE TRIALS - DISSIMILAR COUNTS
4.The learned judge erred in ordering a single joint trial where counts containing similar facts were to be tried together with counts which were not similar.
PARTICULARS
a)The indictment contained 44 counts relating to two complainants.
b)Some of the counts involving the complainant LB had broad similarities to those involving JM.
c)There were numerous counts where there were no unifying features between any counts relating to LB and any other count relating to JM.
d)Any joint trial should only have been ordered in respect of the counts where there were similar fact counts; in accordance with the judgment of the Court of Criminal Appeal in Stickland v R.
e)The other counts should have been tried at two further trials, as relating to the dissimilar LB counts and the others relating to the dissimilar JM counts.
…
GROUND SIX: INCONSISTENT VERDICTS
6.The verdicts of the Jury, were unsafe and unsatisfactory, the not guilty verdicts returned in respect of each complainant being inconsistent with the guilty verdicts returned in respect of the same complainant.
PARTICULARS
a)The credibility of each complainant was the central issue at the trial.
b)There was no independent evidence corroborating the testimony of either complainant.
c)Unless the jury was satisfied beyond reasonable doubt of the truth of each complainant's evidence, there could be no conviction on any count in the indictment relating to that complainant.
d)The verdicts of not guilty on counts 2, 5, 11, 14, 27, 28, 30, 31, indicate that the jury were not satisfied of the truth of testimony of the complainant LB on those counts.
e)The verdicts of not guilty on counts 32, 33, indicate that the jury were not satisfied of the truth of the testimony of the complainant JM on those counts.
f)There being no additional factor which would have permitted the jury to reach different verdicts on the counts which resulted in convictions, the verdicts of guilty were accordingly unsafe and should be set aside."
At the hearing the appellant sought and was granted leave to add a new ground 7:
"7.The Accused elected to continue the trial as he was not fully aware of the full circumstances surrounding the original foreperson's association with his son. This election resulted in a miscarriage of justice.
PARTICULARS
(A)The jury foreperson remained on the jury until the fourth day of trial when disclosed to the Court that she knew the Accused's son, [SM].
(b)The foreperson told the Court she had limited discussions with the other jurors.
(c)When the list of Prosecution witnesses was read to the Court the foreperson should have recognised the name of [JB] as she had had some association with her prior to the trial.
(d)The Accused chose to proceed with the trial on the basis that the foreperson was only an acquaintance.
(e)It was subsequently discovered that the son of the Accused had an association with the juror which was of an acrimonious and unpleasant nature and the Accused had an apprehension that the juror's antipathy toward his son may have operated to his prejudice over the four days until the juror was discharged."
The statutory framework
The relevant provision in respect of joinder was at the time s 585 of the Code. In December 2003 and January 2004, that was in the following terms:
"Except as hereinafter stated, an indictment must charge one offence only, and not 2 or more offences:
Provided that when several distinct indictable offences form or are a part of a series of offences of the same or a similar character or when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same persons.
In any such case the several statements of the offences may be made in the same form as in other cases, without any allegation of connection between the offences.
But, if in any such case it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately."
Section 585 of the Code was amended by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA) which came into operation on 1 January 2005. That relevantly restructured the provision and added the following subsections:
"(4)But, if charges are joined under subsection (2) and it appears to the court that the accused person is likely to be prejudiced by such joinder, the court may, in proceedings under s 611A, require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately.
(5)A court may decide that any likelihood of the accused person being prejudiced by the joinder of charges of offences can be guarded against by a direction to the jury.
The court can so decide ‑
(a)irrespective of the nature of the offences charged; and
(b)even if evidence on one of the charges is inadmissible on another.
(6)In considering any likelihood of the accused person being prejudiced by the joinder of charges of offences of a sexual nature, a court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.
(7)Despite anything in this section and any rule of law to the contrary, if charges of offences of a sexual nature are joined under subsection (2), it shall be presumed that those charges are triable together.
That presumption is not rebutted merely because evidence on one charge is inadmissible on another charge."
Section 585 of the Code, as amended from January 2005, was repealed by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) (No 84 of 2004) and replaced by provisions of the Criminal Procedure Act 2004 (WA) ("CPA") which came into operation on 2 May 2005.
By cl 7 of Sch 1 of the CPA, an indictment may charge a person with two or more offences if they form or are part of a series of offences of the same or similar character; are alleged to arise substantially out of the same or closely related acts or omissions; or are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose, and may do so without alleging a connection between them (cl 7(3)).
By cl 9 of Sch 1, where an indictment contains two or more charges, they must be tried together unless a court orders otherwise under the CPA.
The general procedural provisions relating to separate trials are now to be found in s 133 CPA. They are relevantly:
"(1)The powers in this section may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
(2)A court may amend or cancel an order made under this section.
(3)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it contains 2 or more charges, the court may order ‑
(a)that the accused be tried separately on one or more of the charges; and
(b)the prosecutor to tell the court the order in which the charges will be tried.
(4)…
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court ‑
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
(6)In considering, for the purposes of this section, the likelihood of an accused being prejudiced in the trial by a jury of an indictment that contains 2 or more charges of a sexual nature, the court must not have regard to the possibility that similar fact evidence, the probative value of which outweighs its potentially prejudicial effect, may be the result of collusion or suggestion.
(7)If a superior court makes or refuses to make an order under subsection (3) or (4), the court must adjourn the trial to enable an appeal against the order or refusal to be commenced and concluded under the Criminal Appeals Act 2004 section 26."
For completeness, it is necessary to mention s 31A of the Evidence Act 1906 (WA) which came into operation on 1 January 2005:
"(1) In this section ‑
'propensity evidence' means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the ['acceptable'?] risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion."
It can thus be seen that the statutory law relating to joinder which applied at the time H H Jackson DCJ made his ruling was s 585 of the Code in what we will describe as its original form; the law which applied at the time of trial was s 585 in its amended form; the law which applies now is that contained in s 133 of the CPA and s 31A of the Evidence Act.
It was common ground before us that were the appeal against conviction to succeed and a retrial be ordered, any application for severance would fall to be decided according to the law as it currently stands. We accept that to be so. The legislative changes relating to the admissibility of propensity evidence, joinder of charges and severance, all go to matters of procedure, and:
"A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly … expressed by saying … that no‑one has a vested right in any form of procedure". (Rodway v The Queen (1990) 169 CLR 515, 521)
However, if that issue arises at all in this appeal, it will do so only in the context of the application of the proviso (s 30(4) Criminal Appeals Act 2004 (WA)). It is first necessary to consider whether or not the grounds of appeal have been made out and that is to be determined having regard to the law as it applied at the time the ruling was made.
In his ruling on 16 January 2004, H H Jackson DCJ began by outlining the submissions advanced by the parties. For the appellant it was argued that as neither sister could give evidence directly corroborative of the appellant's offending against the other, to permit the matters to go ahead in one trial would be to raise unacceptable prejudice against him which could not be cured by judicial direction to the jury. It was also submitted there was no sufficient basis for the admission of the other complainant's evidence on the ground that it was admissible as evidence of propensity or similar fact.
It was also submitted that admission of the evidence would raise the possibility of concoction given the relationship of the sisters and the proximity in time of their complaints to police.
It was further submitted that the nature of the alleged offending against each of the complaints raised nothing of an unusual or strikingly similar nature common to them both, either in particular isolated facts or with respect to the totality of things, such as would lead to a conclusion that it was inherently unlikely that the two complainants were not dealt with by the same person. Thus, it was argued that the commonality of facts failed to overcome the prejudice arising against the appellant by reason of any probative value they might have.
His Honour then turned to the substance of the Crown's submissions. That was, effectively, that the cumulative probative force of the areas of striking similarity in the evidence of each complainant satisfied the test that if accepted, it would permit no reasonable explanation other than the inculpation of the appellant.
These similarities were said to be that the appellant began by commenting on each complainant's physical changes at 12 or 13 years of age, namely with the onset of puberty and then to touching or fondling them sexually. Then it progressed by demanding by word or action that the complainant touch the appellant's penis and eventually came to vaginal penetration of each of them at home at night alone, followed by sexual activity at home either alone or sometimes with others in the house and also at other locations.
As his Honour put it, it was thus submitted to him that the pattern of offending included the gradual increase in seriousness from touching to penetration, combined with a similar nature of acts including the appellant requiring the complainants to perform fellatio on him, culminating in his ejaculation into their mouths, sexual intercourse in various positions both clothed and unclothed and kissing the complainants on the mouth. His Honour said the complainants were of similar ages at the commencement of these activities and on the culmination of it, both complainants left the family home as a result. The incidents are also alleged to have occurred under similar circumstances, such as while their mother was in the shower or out of the house, the appellant and the complainant were at home alone in the house or the offences occurred either at a place near their grandmother's home or at the appellant's place of work and at the Perry Lakes Stadium area. While there was a period of time when both complainants were allegedly being sexually abused, the appellant is said to have continued the abuse of the younger sister following the departure of the older from the family home.
His Honour opined that there was considerable force in the Crown's submission, although by itself those matters might not justify a refusal of the defence application. However, he pointed out that propensity and similar fact were not the only bases to the Crown's submissions. Additionally (and his Honour said, importantly) the Crown's submission was that the younger complainant J would be able to give evidence of the close relationship between the appellant and the older complainant and of witnessing him at least once in her bed with her and that each of the complainants could give evidence of a family meeting at which the appellant made admissions to his son, in the presence of his wife and both complainants, of having a sexual relationship with each of them and of receiving a letter of apology from him.
Even so, his Honour said, the evidence of the close relationship and the bed incident would not, in his view, of themselves support a single trial.
His Honour noted that as to the meeting and the letters, counsel for the appellant had said the fact of those would be admitted, although the extent of the admissions made at the meeting was limited and was the subject of dispute. Counsel argued that it would be possible at separate trials to limit the evidence of the other complainant to those questions of admissions concerning the complainant in the particular trial and to his letter to her.
As to that, his Honour said that "such an artificial situation" would mean the appellant need only explain one part of his admission, namely one of his letters at each trial, which would deprive the evidence of a very great part of its probative value. Indeed, he said, it would also be relevant to the separate issue of concoction which might be raised at a joint trial or even at separate trials. He said the Crown argued that concoction was, in the circumstances, not a real issue because to be relevant, it must be a reasonable possibility based upon some factual foundation, whereas the circumstances of the meeting, followed by the letters (neither of which was denied), together with other factors, rendered a concoction fanciful. The Crown submitted that although sisters, the complainants were, for significant periods, not living together and indeed that no motive for collusion either existed or had been suggested.
Senior counsel for the appellant conceded before his Honour that it was possible that allegations of concoction would be put to the two complainants as it had at the preliminary hearing.
His Honour said he did not consider the issue of concoction "critical" to his decision. He concluded (AB 69):
"In addition, at the level or [sic: of] practicality the Crown says the severance would in fact involve a significant increase in the length of the case. Additional emotional distress and embarrassment and considerable inconvenience to the complainant, [J], who currently resides in the USA and who would be required to give evidence and face the accused not once, but twice. In the end though the Crown accepts that, as I think it must, those latter issues are not conclusive.
In my view the issue of the meeting and of the letters is critical. To isolate the separate parts of the issues would be difficult to do and would entirely, in my view, mislead the witnesses [sic] or would be likely to do so and the jury. The cumulative weight of those matters and the propensity of the similar fact issues raised by the Crown, in my view, supported to only a minor degree by the other matters, however, requires that the application be dismissed. I thus decline the application."
Ground 1: Evidence not "similar fact"
The Crown's submissions before the Judge were in part that the evidence of the complainants was mutually admissible because it was "similar fact" evidence.
However, although his Honour thought that there was "considerable force" in that submission, he was of the view those matters in themselves "may not" justify a refusal of the application for severance. It is apparent, though, that it was the "cumulative weight" of the evidence in respect of the family meeting and the letters, together with the propensity and similar fact issues raised by the Crown, which led his Honour to dismiss the application.
The prosecution conceded before his Honour that there was no "strikingly similar" feature of the evidence. From the submission it is clear the Crown sought to rely upon the evidence as "propensity evidence" in the sense that it disclosed a similar course of conduct in respect of each girl and demonstrated an underlying unity or pattern.
The position of the Crown was explained this way (AB 50 ‑ 51):
" … if the accused concedes that he did sexually deal with both complainants after the age of 16 and says the only question is whether the two girls, who have been his children since they were aged 8 and 4, would consent to sexual activity with him, it seems to me there is now a far higher degree of probative value in the jury hearing the evidence of both girls because the question the jury are going to have to ask themselves is, 'Would a girl who has been in the position of a daughter to the accused since the age of 8 or 4 respectively - would that girl have consented to sexual activities with their stepfather after they turned the age of 16?'
The answer to that question in relation to one girl may be a very different answer than if you are aware of the fact that the accused is claiming that both girls, and it seems to me that because of that concession, if that's the way the trial is going to run, then there is now a much greater probative value in there being the evidence of both girls at the same trial; that is, we would say it is far less likely that two girls would consent to sexual activity with their stepfather than one.
Your Honour summarised really the Crown position well. The Crown doesn't say there is any one feature of the accused's conduct towards each of the girls that stands out as being so strikingly similar or bizarre as to justify hearing the two cases together. What we say is there was a course of conduct by the accused in relation to each girl and that course of conduct was similar and does constitute an underlying unity or pattern." (My emphasis).
As at January 2004, the law which applied to the severance of charges otherwise properly joined, on the basis of prejudice outweighing probative value, was that explained by the High Court in De Jesus v The Queen (1986) 61 ALJR 1; Hoch v The Queen (1988) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461.
In contrast to the position now under s 31A of the Evidence Act1906 (WA) and s 133 of the CPA, the starting‑point was that unless the evidence in respect of each offence charged on the indictment was admissible in relation to the other offences charged, separate trials should be ordered (Hoch (supra) per Mason CJ, Wilson and Gaudron JJ at 294, citing De Jesus (supra)).
The criterion of the admissibility of the evidence was the strength of its probative value, that strength lying in the fact that it revealed "striking similarities", "unusual features", "underlying unity", "system" or "pattern" such that it raised, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution (ibid, 294 ‑ 5). Where the accused disputed the offences upon which the subject evidence was said to bear, that evidence was relevant to prove the commission of the disputed acts. Their Honours continued (Hoch at 295):
"Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well‑known passage in the speech of Lord Wilberforce in Boardman [1975] AC 421 at 444:
'This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.'
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible."
The High Court revisited the admissibility of propensity in Pfennig, noting the contemporary position has its origins in the statements of principles by Lord Herschell LC in Makin v Attorney‑General for New South Wales [1894] AC 57 at 65. Those principles were that first, the prosecution cannot adduce evidence tending to show the accused has been guilty of criminal acts other than those charged, for the purpose of leading to the conclusion that he is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. As their Honours observed, that principle has since been described as "fundamental" in the law of evidence. The second principle was that the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury; and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
In reviewing the development of the law in England, Mason CJ, Deane and Dawson JJ noted that in R v Boardman [1975] AC 421, the House of Lords adopted as the guiding principle to determine the admissibility of such evidence the test whether the prejudice to the accused was outweighed by the probative force of the evidence. In Boardman, the House held the trial Judge was entitled to decide that the probative force of the similar fact evidence (as it was in that case) outweighed its prejudicial effect because there was a striking similarity or underlying unity between the similar fact evidence and the evidence of the acts charged. Their Honours continued (at 478):
"Lord Cross of Chelsea, who reflected the majority view in Boardman, observed that the reason for the general rule of exclusion in relation to propensity evidence is (42):
'not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant than it was so that ... its prejudicial effect would outweigh its probative value. Circumstances, however, may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense.'
His Lordship went on to say (43):
'The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra‑cautious jury, if they accepted it as true, would acquit in face of it. In the end - although the admissibility of such evidence is a question of law, not of discretion - the question as I see it must be one of degree.'"
Their Honours next noted that subsequently, in Director of Public Prosecutions v P [1991] 2 AC 447, the House of Lords rejected the proposition that "striking similarity" was an essential prerequisite of admissibility of similar fact evidence in all cases, holding that the essential feature of the evidence to be admitted is that its probative force is sufficiently great to make it just to admit it, despite its prejudicial effect.
Their Honours referred to the speech of Lord Mackay of Clashfern LC (with whom the other Law Lords agreed) rejecting the noting that "striking similarity" is an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. At 479 they set out the following passages from the Lord Chancellor's speech:
"The Lord Chancellor observed:
'[T]he essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed ... But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it and is not justified in principle.'
The Lord Chancellor went on to say:
'Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.'
The Lord Chancellor regarded the relationship between the evidence relating to one victim and the evidence relating to another victim as critical. In this respect, his Lordship said:
'This relationship, from which support is derived, may take many forms and while these forms may include "striking similarity" in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connexion. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connexion, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle'." (Citations omitted)
In his judgment, Toohey J (at 506) referred to the passage from the judgment of Mason CJ, Wilson and Gaudron JJ in Hoch at 294 to the effect that the basis for the admission of such evidence lies in its possessing particular probative value by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. His Honour referred to the passage from their Honours' judgment in which they pointed out that the strength of the probative force of the evidence lies in the fact that it reveals "striking similarities", "unusual features", "underlying unity", "system" or "pattern" such that it raises as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution. Toohey J concluded that although that passage refers to "striking similarities" and the like, the emphasis of it is on the relationship between the evidence and improbability which follows from that relationship. As his Honour said, although the language used is not identical with that in Director of Public Prosecutions v P, there is a consistency of approach in the two judgments.
His Honour concluded (at 507):
"The probative force of the evidence … is the basis for its admissibility; nevertheless, the trial judge may exclude it. Evidence that an accused has committed other relevant offences must inevitably have a prejudicial effect. But, in the language of Director of Public Prosecutions v P, it may nevertheless be 'just' to admit the evidence. The reference to just aptly conveys the notion that it is not only the interests of the accused that are involved. The legitimate interests of the Crown and of the community cannot be overlooked … "
Apropos the passage from Hoch at 294 ‑ 5, the majority in Pfennig pointed out (at 482) that it should not be understood as asserting that "striking similarities" or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case. They noted that where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged, not only that it was the accused who committed them. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. At 483, their Honours noted that the discussion in Hoch was expressed in terms of evidence of similar facts rather than probative evidence, because the evidence in that case lent itself to that classification. They noted that there has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence:
"The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connection with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect."
Against this background of authority, as at January 2004, it is immediately apparent that particular (a) to ground 1 does not adequately state the law even as it was then, and cannot be sustained. This is not a case in which "striking similarity" was said to be the sole nor even the principal basis of admissibility and was only one of the reasons for his Honour refusing the defence application. The submissions before the primary Judge do appear to have fallen in some respects into confusing the characterisation of the evidence. Nonetheless, the essential submission by the Crown was that the evidence possessed such probative force that it revealed a pattern of activity bearing no reasonable explanation other than the guilt of the appellant.
In our view, the real nature of the subject evidence was that it demonstrated an underlying unity, system or pattern in the appellant's conduct with respect to each of the complainants as to raise, as a matter of common sense and experience, the objective improbability of any particular offence charged, as having occurred other than as alleged by the prosecution - that is to say, that it tended to prove the commission of the offence charged. This was evidence of a particular distinctive propensity of the appellant, demonstrated by acts constituting particular manifestations or exemplifications of it, having specific connection with the issues for decision in this case. To put it in the terms of the judgment of Mason CJ, Deane and Dawson JJ in Pfennig at 482, the probative value of the evidence lay in the improbability of both complainants giving accounts of offences committed upon them by the appellant having that degree of similarity, underlying unity, system or pattern unless the offences occurred - or unless the evidence was concocted. Ground 3, which went to the possibility of concoction, was abandoned and so it is not necessary to deal with that issue in respect of ground 1.
In broad outline, the prosecution case was as follows. Where a particular incident is one charged on the indictment, we have indicated the count number in brackets.
L and J are sisters. L is the elder and at the date of trial was 37 years old. She has three children and works in Perth. J at the time of trial was 33 years of age and, together with her partner, has a business in Europe.
Their parents were married, but split up about 1975, when the girls were aged about 8 and 3 respectively. After the breakdown of their parents' marriage, the complainants remained living with their mother in Perth.
About six months after the separation, their mother began to keep company with the appellant. Almost from the beginning, he became a part of the complainants' lives. Within a reasonably short time, they and their mother moved into a unit with him. They remained living there until about 1977, when they moved interstate as a family.
From the time of their parents' separation, neither complainant recalls spending much time with their natural father and such as there was diminished when they moved interstate. It was while they were interstate on that occasion that the appellant cemented his place in the girls' lives, to the extent that by that time they were referring to him as their father. He treated them as such and made them feel special. They wanted his attention and affection. He was the dominant male figure in their lives and, to all intents and purposes, was their father. He was also the sole breadwinner for the family and remained so for essentially 10 years or so. The complainants wanted to do all they could to keep him in their lives. This was something that was reinforced in the home by their mother.
During that period, L began to go through puberty. There were times the appellant made her feel special and important, but others when he would tease her. This confused her. He would tease her about her body, saying she would not need to wear a bra for a while, or that she was pear‑shaped. It was the State's case that this was the context in which the appellant began to sexualise his relationship with her. His comments were later followed by him touching her sexually and having her touch him. On one occasion, the appellant had been working out with weights in the back shed. He was sitting on a bench and took L's hand and put it on his crotch on the outside of his clothing and held it there. She said this frightened her and after he released her hand, she picked up the family dog and ran with it into the house into her bedroom. She recalled this because she got into trouble for bringing the dog into the house.
Not long afterwards, when the appellant was driving L to or from school, he again took her hand and put it onto his crotch area on the outside of his clothing. He had an erection. L was able to say this because she remembers saying to him at the time it was banana‑shaped.
The next incident she recalled occurred in a rabbit hutch they had on the side of the house. She was in the hutch when the appellant came up behind her and grabbed her by the hips and pushed himself against her. She could feel his penis against her.
On another occasion, she was sitting, wearing her nightdress, on a desk in a room in which the appellant would do some work. The appellant pulled her nightie up, opened her legs and pressed himself against her. She recalled that while this was happening, she could hear water running in the shower and knew her mother was taking a shower.
On the Crown case, that was a significant feature because the pattern of the appellant having sexual contact with L whilst her mother was showering became a regular part of L's life.
The appellant continued to touch L sexually during the time the family lived there and in that way, on the State case, he began to groom her to get her used to that type of sexual touching, so that she would think it normal; to make it so that in her mind it was part and parcel of a loving father/daughter relationship and so that she would accept it without question and in fact eventually to anticipate it.
The family returned to Western Australia at the beginning of 1979. L was attending a primary school in year 7 and turned 12 that year. They lived at a house in Subiaco. It was there the appellant first had sexual intercourse with L.
The family lived at that house from 1979 until the beginning of 1982; L was aged between 12 and 14 years. They had some extensions put onto the house, including a swimming pool and sunroom. L said it was in the sunroom that the first act of sexual intercourse with the appellant occurred (#1: rape, under s 325 Code). It was night‑time and she was sitting on a single cane chair. She said the appellant was kneeling in front of her, between her legs. He put Vaseline on his penis and then pushed himself inside her. It hurt. She cried out, but he told her to be quiet because her sister was asleep. She said she recalled hugging the appellant and then going to the bathroom where she brushed her teeth and then went to bed. She said that in the following days she regularly asked the appellant if he loved her and he told her each time that he did.
The evidence was that in the years that followed, the appellant would regularly touch or have sexual intercourse with L, or have her touch him. He would come into her room or seek her out during the day when her mother was otherwise engaged in household duties or was having a shower. He would also create opportunities for him and L to be alone, taking her for drives or to the shop. During this time, he would often say things to her such as she was his "special little girl"; that he loved her; it was not the same as with her mother; it was all right; she was not his real daughter and he was not her real father; that she was his favourite, and things of that sort.
The Crown case was that the young and impressionable girl had been trained in that way to accept the love of the appellant in a sexual sense and so it was that she became infatuated with him to the extent that she would seek him out, she would sit on his lap and she would want to go everywhere with him. She would often lie in bed at night listening, or stand outside her mother's and the appellant's bedroom listening, fearing that they were having sexual intercourse. Her evidence about that was confirmed by both her sister J and her mother. They testified that they would see L outside the parents' bedroom and L would readily tell them that she did not want her mother having sex with the appellant because she didn't want them to have other children because, if they did, the appellant would not love her any more.
The Crown case was that the abuse was so regular and occurred over such a lengthy period of time (until L was about 18 or 19) that it was difficult for her to recall specific details of each event. Those which she could specifically identify were the subject of the charges on the indictment.
L described an act of sexual intercourse with the appellant in the back shed of the Subiaco house (#2: rape). She was standing in the shed with her hands on the weight bench with the appellant standing behind her and penetrating her from that position. She said that on that occasion she had been wearing tracksuit pants and a skirt over the top that had been part of her primary school uniform.
She described another occasion when she was standing in the sunroom of the house with her mother and the appellant (#3: indecent dealing with child under 14, s 183 Code). Her mother had just come back from cooking lessons and was showing them a pecan pie that she had made. L recalls that semen was running down her leg onto the floor. She could not recall precisely how it came to be there, but described her apprehension that they would be found out.
She also described an act of digital penetration in the lounge room of the house, when she was sitting watching television and working on a tapestry that her grandmother had given her (#4: indecent dealing with child under 14). The appellant was sitting next to her and they had a blanket over their laps. The mother and sister were in the room with them. The appellant put his hand under the blanket, between her legs and digitally penetrated her vagina. She says she reacted by pushing her legs together, trying to stop him from having access.
The appellant and the complainants' mother were married on 10 October 1981. L was very upset about this. Her distress was such that she begged her mother not to marry the appellant. Her distress was evident to everyone, particularly on the wedding day when she cried and was apparently openly resentful.
An aunt had travelled from Europe to attend the wedding. L recalled that she was with the appellant in the swimming pool at the back of the house and whilst they were having sexual intercourse the aunt came around the side of the house. L became frightened that the aunt would see something, but the appellant reacted quickly and began to splash her in a playful way, giving the impression they were engaging in some sort of game (#5: rape).
L also described an act of oral sex which occurred in the pantry of this house, when the appellant pushed her head down to his penis and held it there (#6: indecent assault, s 328 Code). She recalled him ejaculating into her mouth and him holding her head until she swallowed the semen. Although he often had her perform oral sex on him, that was the only occasion on which he made her swallow the semen. She said that before or around this happening she had seen her mother out of the window in the pantry, in the backyard.
She described an incident in the bathroom whilst she was having a shower (#7: rape). It was an old‑fashioned bathroom, with the shower actually over the bath itself. She said that the appellant came in and had sexual intercourse with her from behind, standing by the side of the bath whilst she held onto the taps in the wall.
One occasion L described whilst they lived in Subiaco was when she went for a drive with the appellant to a dirt track on the City Beach side of Perry Lakes, where the appellant had sexual intercourse with her on the front seat of the car. She was sitting on top of him at the time (#8: rape).
Another incident whilst at the Subiaco house was one when the appellant penetrated her using a cucumber (#9: indecent assault). It was night‑time and she recalled that he pushed a cucumber in and out of her; she tried to push his hand away to stop him, but he would not. She recalled the cucumber was very cold and at some point the appellant said words to the effect that if she liked it, they could get a dildo.
A short time after the appellant and the complainants' mother married, the family moved to a house in another Perth suburb, set amongst bushland. At this time, L was in year 10.
The sexual abuse continued whilst the family lived in this location. It included an act of sexual intercourse which occurred in the cellar of the house (#10: rape). L said she recalled being in the cellar, bent over, with her hands on her knees as the appellant had intercourse with her whilst he stood behind her. While this was happening, she could again hear water running in the en suite bathroom of her mother's bedroom which was just adjacent to that area. When the water was turned off, the two of them panicked and the appellant left quickly via a side door into the carport, whilst the complainant went in the opposite direction into the kitchen.
On one occasion, the appellant asked L to meet him outside the house where he had gone to practise his Tai Chi. It was night‑time and he told her to join him in about 20 minutes. She obeyed and when she went to him they had sexual intercourse in bushland near the house (#11: rape).
There was a further occasion on which he took L to a bottle shop which was near the house. Again, it was night‑time and in a delivery lane adjacent to the bottle shop the appellant had L perform oral sex on him (#12: indecent assault). She recalled that he ejaculated into her mouth and she spat the semen onto the ground. She said it was very dark and they had bought a bottle of Black Bottle brandy and a packet of Cheezels from the bottle shop.
There was a workshop area in this house. It was in that area where the family dog slept of a night.
L recalled the appellant having sexual intercourse with her in the workshop (#13: rape). She was standing with her hands on her knees whilst he had sexual intercourse with her from behind. She recalled the dog licking her legs and kicking the dog to one side whilst this was occurring.
It was at that house that L celebrated her 16th birthday. She was allowed to have girlfriends over for a sleepover. Her room was set up so they could all sleep in there. Her bedroom was adjacent to a courtyard. It was a large house and apparently in a U‑shape. It was quicker to get to the kitchen from her room by crossing the courtyard than by going through the house. She said she recalled doing so and whilst she was in the courtyard she encountered the appellant. He had sexual intercourse with her (#14: rape). She recalled standing with her hands on the window frame of her bedroom looking into the room and watching her friends whist the appellant had sexual intercourse with her from behind. She said she was very stressed. About this and other instances of obviously risky behaviour on the part of the appellant, she said that it seemed to stimulate him.
Whilst they were living in that house, it was a long trip for L to attend school. Usually, she took the train and bus, but there were occasions when the appellant would be coming into the city and he would drive her. L recalled that on one occasion he took her to a motel near the city. At the time, she was dressed in her school uniform. He left her in the car whilst he went to the reception desk and checked in. When he returned, they went into the motel room and she stripped and got into bed. The appellant showed her a dildo. In her opening to the jury, the State prosecutor said that L recalled that the appellant pushed the dildo into her, however in her evidence she said she could not remember him using it on her, although she did recall he washed it afterwards. She said, "I would assume we had sex", although she could not remember the actual act. She said once he had washed the dildo, he put it in a yellow envelope and placed that in his briefcase. The two of them showered together before they left the motel. She was late for school that morning and that caused a problem (#15: indecent assault by penetrating vagina with dildo).
The family left that house just prior to the birth of their brother, "S", in October 1983. They moved into a unit in another Perth suburb and stayed there for approximately 12 months.
Notwithstanding the birth of his son, the appellant continued to sexually abuse L and, indeed, her evidence was that whilst living in the unit the amount of sexual contact increased. At this stage, she was 16 years old. The Crown case was that, notwithstanding her age, the appellant's corruption of L was so complete by this time that on the one hand she saw him as her boyfriend, although she still called him "Dad" and interacted with him as one would a father. The appellant treated her in all respects, except for the sexual one, as a father.
One specific event she recalled was when the appellant ejaculated into her mouth while she performed oral sex on him in the powder room of the unit (#16: indecent assault). She recalled that she spat the semen into a basin afterwards. She was wearing her summer school uniform at the time.
She also described an incident in the kitchen when they were both standing. She said she gave him oral sex and he showed her how to touch his testicles. He put her hand down there. It seemed to "turn him on". He ejaculated into her mouth and she spat out in the kitchen sink (#21: indecent assault).
L referred to another occasion in the double carport. The appellant was in the car. Again, she was in her school uniform. She was standing outside the car and gave him oral sex while he was seated in it (#19: indecent assault). He did not ejaculate and she said she recalled him then having intercourse with her from behind, with her hands on the bonnet of the car (#20: rape). He ejaculated and the semen dribbled onto her school stockings so that she had to go inside and change and wash them.
She next described an occasion when the two of them were sitting in a love seat on the balcony of the unit. The appellant was wearing white moleskins. He unzipped them and began to masturbate. He then took her hand and she worked on him until he had an erection (#17: indecent assault), then she gave him oral sex (#18: indecent assault). He ejaculated and she spat out in the bathroom.
L described an occasion when she was sitting on the end of her bed. The appellant came in wearing a black silk dressing‑gown, which he opened and then pulled down his underpants. He stood in front of her and she gave him oral sex (#22: indecent assault). He then pushed her back on the bed and they had sexual intercourse (#28: rape). That incident particularly upset her because she was at the time supposed to be looking after her baby brother and he began crying whilst they were doing this and she could not attend to him.
In late 1984, when L was 17 years old, the family moved from the Perth unit to another coastal town in the south of Western Australia. As a result of the move, L did not finish year 12. At first, the family lived in a small two‑bedroom duplex while a house was being built for them. They moved into the house about August 1985.
The appellant established himself in a financial advising business and L went to work for him.
During the time L worked for the appellant, he would occasionally take her with him to see clients on their farms. This happened more often in the beginning whilst he was establishing the business. It was L's evidence that during some of these excursions, the appellant would take the opportunity to have sexual contact with her. He also continued to do so in the office.
She described one occasion on which he parked his grey Ford Fairlane by the side of the road. She straddled him and they had intercourse in the car. He ejaculated inside her and she ran into the bush, where she inserted a tampon. Her evidence was that she would do that from time to time to conceal evidence of their activity (#24: indecent dealing (oral sex); #25: rape).
L described another occasion near some salt lakes, where she again had sexual intercourse with the appellant whilst sitting astride him in the driver's seat (#26: rape). Before they went out on that occasion, he told her to be sure to wear a skirt to work.
Shortly after they moved to that town, L met the man who later became her husband. That was in January 1985. She was married to him 18 months later. There was still sexual contact with the appellant until then.
One occasion described by L occurred at Eagle Bay at Easter, which was about April, in 1985. She was with him in his brother's BMW sedan. He took her driving and parked by a beach. She straddled him in the front seat of the car (#27: rape). The appellant did not ejaculate during intercourse and he then moved her off him and guided her onto the handle of the handbrake which was in the centre console and manoeuvred her so that it penetrated her vagina (#28: indecent assault). She said that was painful and she managed to pull away.
The complainant recalled one occasion on which the appellant was taking her home from the office for lunch with her mother. He stopped the car on a gravel parking area not far from the house and had her give him oral sex (#30: indecent assault). She spat out the door. She recalled this particularly because when they got home the mother said she had been telephoning the office and asked them why they had taken so long to get there.
In the appellant's office, he had a substantial wooden antique desk. L described an occasion upon which he called her in and had sexual intercourse with her on the desk (#29: rape). He ejaculated inside her on that occasion. She described feeling embarrassed about the incident because she had to walk past other staff to go outside to the toilets to clean herself up afterwards.
L's grandfather died in August 1985. A short time later, her grandmother came to stay with them. It was a two‑storey house and the grandmother gave evidence that she was staying in a room downstairs, directly below L's bedroom. The house had floorboards upstairs and it was possible to hear people walking on the upper level. According to the grandmother's testimony, the appellant and L's mother went to a party at a neighbour's place and arrived home late. Everyone else was in bed. The grandmother says she heard them return and then heard the mother go to the bathroom downstairs, which was the only operating bathroom at the time. She heard the shower going and then heard the appellant's footsteps walking from the main bedroom across the hallway into L's room. About 15 minutes or so later, she heard him leaving L's room. Given the lateness of the hour and the length of time the appellant had been in L's room, the grandmother decided to confront him about the visit. She did that the following morning, asking him what he was doing in L's room at that time of night. Her evidence was that he said something like, "She's my daughter" and simply walked away.
It was in this house that the last incident of sexual intercourse between the appellant and L occurred.
The relationship between them had been problematic because L was trying to spend time with her then fiancé. According to her, the appellant had been making it difficult for her to see her fiancé and putting restrictions upon her outside activities. Despite all that, she still desperately wanted his approval and affection and so, when he wanted to have sex with her on her mother's bed she complied. She said this was early in the morning. He called her into the bedroom where she found him lying completely naked on his back on the bed. She recalled being on top, straddling him, wearing only a bra. She noticed a Vaseline jar with pubic hair inside it, on the bedside table. The appellant ejaculated inside her (#31: sexual penetration without consent; s 324D Code).
It was shortly after that, L was compelled to leave home. On 6 April 1986, she went out on a date with her fiancé and returned home after the midnight curfew imposed by the appellant. When she arrived home, she found herself locked out. She returned to her fiancé's parents' house, where he was staying for the time being, and slept in his room while he slept in the lounge. She went back home the following morning, packed her belongings and returned to Perth where she lived with her grandmother until she married her fiancé in January of 1987.
It was the Crown case that while L was 17 and J was only 13, while the family was living on the coast in the south of the State, the appellant began to groom and prepare J in much the same way he had L.
In her evidence, J said that she had noticed that the appellant seemed to spend more time with her sister, L, and that it was clear to J that L was the appellant's favourite. She, of course, regarded the appellant as her father and also wanted his love and approval. She had watched and envied the apparent attention the appellant gave her sister and coveted some of that attention for herself.
Whilst the family was still living in the duplex, the appellant came to her one night while she was sleeping on a mattress in the lounge room. That was because they had visitors and the unit being small, the visitors were staying in her bedroom and she was sleeping in the lounge. This was the first time J could recall there being any sexual contact between her and the appellant. He put his hand down her pyjamas and rubbed her on her genital area (#32: indecent dealing with child under 14). She did not resist.
It was also about this time that the appellant began to make comments to J about her body.
J described another occasion on which she was in bed in the room she shared with L. The appellant climbed into bed with her and got her to place her hand on his penis. He held her hand in his and guided her hand up and down on his penis. At this time, she was in year 8 (#33: indecent dealing with child under 14).
J testified that after they moved to their own house, she saw the appellant in bed with L on one occasion while their mother was having a shower.
So far as she herself was concerned, the next event she described was one which occurred while she was in year 9. The appellant climbed into her bed and began rubbing himself on her, trying to make himself hard. He then penetrated her with his penis (#34: rape). She remembered being scared and telling him to stop and get off her. However, he persisted, causing her pain. She ran to the bathroom and found she was bleeding. The appellant assured her it was natural for that to occur the first time a girl had sex.
J then described an incident when the family visited their grandmother's place in New South Wales. The appellant took J for a walk up a nearby hill and had her perform oral sex on him. She said she remembered him spitting on his fingers and rubbing the outside of her vagina. He then put his fingers inside and she also remembered lying down on the grass and having sex with him. She could not recall if he ejaculated.
After the appellant, J and her mother moved back to Perth midway through 1986, they stayed for a short time with the appellant's brother and his wife, before moving to another house in Subiaco. They remained there until the end of 1988, whilst J was in year 11 and all of year 12. She was then aged 15 to 17. In her evidence, she said she remembered a lot of sexual contact between her and the appellant in this house. It included him trying to kiss her, trying to touch her breasts, exposing himself, rubbing his penis on her face and holding her face and trying to kiss her on the lips.
Her sister, L, had left home some time before and J saw very little of her during this period.
J described an incident in her bedroom. She was standing in front of her dressing table. The appellant was standing behind her. He wanted her to look at them in the mirror. He pulled her bra down and touched her breast and then put his fingers inside her vagina (#35: indecent assault; s 324B Code).
She remembered another occasion when she was in her bed. The appellant came in and pulled her to the edge of the bed and penetrated her with his penis whilst he was standing against the bed (#36: sexual penetration without consent; s 324D Code).
She described an occasion in the sewing/laundry room where the appellant stood behind her and penetrated her vagina with his penis while she bent over with her hands on the sewing table (#37: sexual penetration without consent). She recalled that her mother was taking a shower at the time.
J said that sexual contact between them was a regular occurrence, especially when her mother was in the shower. At transcript 587 ‑ 8, she described it this way:
" … I remember it being a regular occurrence, that it was something that was going on all the time.
What do you mean, it was going - what's 'it'? What sort of contact are we talking about?‑‑‑Him trying to touch me at any available moment it seemed. If mum was taking showers, he'd try and touch me, touch my breast, try and kiss me on my lips. There were times when mum would be taking showers and I'd be in bed with him in their bed. They'd have the television on, mum would be around at the time. She'd go in and take a shower and he'd try and touch me and try and do things then. I remember lots of times that that would happen, that mum would be taking a shower. I remember feeling uncomfortable about it, but also at the same time it was - it was like, it would just be a frequent occurrence of things. I'd feel under pressure.
You felt under pressure, of what form? How do you mean?‑‑‑That he was - that he was in control of what was going on. He was in control of what I thought. It was, it was just life, that's what was happening, and I was going along with him doing those things, him trying to make me feel special or important or whatever, so there was mixed emotions of feeling not comfortable about it, but at the same time not wanting to upset him. A lot of the family, and this is going back to very, very early stages, was, you know, mum - you know, 'Go and make him a cup of tea' and 'Go and sit on his knee' and 'Go and' - you know, 'Make sure that', you know, 'that he was happy', that he was happy about taking care of us. That was huge pressure of feeling like, holding this family together, because there was going to be nothing else. I felt like, you know, I loved him because he was my father and he was in our house and my brother; I loved my brother, I loved my mother, and all this time there was also, you know, just feeling under pressure about keeping all of this together. There was definitely a feeling of wanting a happy family, of, like, wanting to feel special, wanting to feel - not wanting to upset that, you know, and that's also - so many reasons about not saying anything to anyone about what was happening in the house because - who were you going to say anything to? Like, how were you going to get out of there and also at the same time thinking, feeling that pressure about keeping that family together, because - and I think for a lot of reasons wanting, you know, wanting a happy family, like wanting - I remember telling friends all the time about how close I was to my, you know, my stepfather, but my father who was in my house now, so much closer to him than my mother, like wanting everybody else to think of it as, you know, a happy family, so on the exterior I was happy to everybody, you know, like I was always trying to make everyone else happy and what - all the other stuff that was going on was either not happening to me, because I block it out of - I'd not try and think about it, but it was - I guess that's how you deal with it at the time. You know, it's like you go along with those things because that's just life … "
J remembered a time when the appellant wanted her to spend the night with him in her mother and the appellant's bed. This was in 1987. They were going on an international trip. For some reason, her mother and little brother left first. The appellant wanted her to spend the night in the bed he shared with her mother. She was naked in bed with him and recalled how uncomfortable she felt about that, but could not recall if there was any other sort of sexual contact on that occasion.
According to J, the appellant would take other opportunities to try to touch her, or to have her touch him, or to have her perform oral sex on him, or other sexual contact. As a protective measure, she took to having her young brother in bed with her to try to discourage the appellant from sexual contact while still enabling J to maintain his attention. Nonetheless, there were still occasions when the appellant had sexual intercourse with her.
One such occasion was when they were staying at Eagle Bay. The appellant came into the bed where she was with her brother. She was lying facing her brother, away from the appellant. He pulled her pyjamas down and rubbed his penis on her (#38: indecent assault). That was one occasion on which the complainants' mother actually saw something. She and the appellant were sleeping upstairs in a loft area. In her evidence she said that the appellant went downstairs ostensibly to check on J and her little brother. After the appellant had been gone a little time, the mother looked over the balcony and saw him in bed with them, lying against J. He then got out of bed and she saw that he was naked except for underpants and that he had an erection. She said she was mortified and confronted the appellant about it when he returned upstairs, because she was concerned at what J might have seen. The appellant told her she was overreacting. She said that she later spoke to J about it to see whether there was anything wrong, although she did not specifically mention why. Whatever J said to her reassured her that J had not seen anything. In her evidence, J said she could not recall her mother talking to her about it at all.
J said that they lived at the Subiaco house for less than six months. She was then in her first year at university. They moved to a house at Floreat. The sexual contact between her and the appellant continued. She described one occasion in her brother's bedroom. They were standing by the window where they could see out into the street and whether or not anyone was coming. The appellant was standing behind her, rubbing himself up against her and touching her breasts (#40: indecent assault).
She described an incident in the bathroom she shared with her little brother. She was having a shower when the appellant came in. She told him to get out. He tried to pull the curtain aside to look at her, but she wrapped herself in it and he left after she told him to get out.
On one occasion she described, they again had sex in the bed the appellant shared with her mother. There was a dressing table mirror opposite the bed. The appellant wanted her to sit up and watch while they were having sex. She was on top with his penis inside her (#39: sexual penetration without consent). She said she was very uncomfortable and self‑conscious about it. She did not want to look.
At that time, the appellant had an office in West Perth. J needed to do some photocopying for her university studies. He drove her there. After she had finished photocopying and they were about to leave, he took her into a waiting area in which there was a black leather sofa. He sat her on the sofa and knelt in front of her. She remembered him getting a condom and showing her how to put it on him by guiding her hand while he put it on. He then spread her legs, pulled her to the edge of the sofa and penetrated her (#41: sexual penetration without consent). She said she remembered just holding him and just wanting to keep still and not wanting to move or do anything. He ejaculated in the condom and then took the condom off, tied a knot in it and went into the bathroom. That was the first and only time he used a condom.
The gravity of the respondent's offending is reflected in the statutory maximum penalties for the offences committed. The offence of rape was punishable by imprisonment for life, although the proven conduct in the circumstances of this case amounted to aggravated sexual penetration without consent in respect of which the maximum penalty is 20 years' imprisonment (s 10 of the Sentencing Act; s 326 and s 319 of the Criminal Code). The statutory maximum for indecent assault was 4 years' imprisonment (s 328 and s 324B of the Code) and the maximum for sexual penetration without consent was 14 years' imprisonment (s 324D of the Code).
The principles upon which an appellate court must approach an appeal by the State against sentence are well‑established. An appellate court may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a different manner than the sentencing Judge did. It must be shown by the appellant that the sentencing Judge failed to properly exercise his or her discretion by imposing a sentence that falls outside the range of a sound exercise of the sentencing discretion or is the product of some identifiable error (Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672).
Both the general principle and the particular principle which applies to appeals by the State, were articulated by Malcolm CJ (with whom Wallace and Pidgeon JJ agreed) in R v Podirsky (1989) 43 A Crim R 404 at 406:
"The principles applicable to an appeal by the Crown under s 688(2)(d) of the Code are well settled. In Peterson [1984] WAR 329 at 330; 11 A Crim R 164 at 165 they were said by Burt CJ to be identical to those stated by Brennan, Deane, Gallop JJ in Tait (1979) 46 FLR 386 at 387-388. After referring to Harris (1954) 90 CLR 652; Kovac (1977) 15 ALR 637 and Cranssen (1936) 55 CLR 509 at 519-520, their Honours said:
'An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error: see generally Skinner (1913) 16 CLR 336 at 339-340; Withers (1925) 25 SR (NSW) 382 at 394; Whittaker (1928) 41 CLR 230 at 249; Griffiths (1977) 137 CLR 293.
Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time‑honoured concepts of criminal administration" (per Barwick CJ, Peel (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy the vested interests that a man has to the freedom which is his, "subject to the sentence of the primary tribunal" per Isaacs J, Whittaker at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court'."
And see also Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [61] ‑ [62].
It is necessary to consider what is a usual range of sentences in cases of sexual offending against children. That task was performed a little over 11 years ago by Anderson J in Woods v The Queen (1994) 14 WAR 341. His Honour reviewed a number of cases which were frequently cited, including Podirsky v The Queen (1990) 3 WAR 128, R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993, and Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993, which he classed, obviously correctly, as "worst category" cases. To that list, we would add Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992, which is often cited as such a case. His Honour reviewed also cases that might be regarded as being at the other end of the scale, including Price v The Queen (1988) 33 A Crim R 359, R v Ginder (1987) 23 A Crim R 1 and Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990. His Honour, after that review, concluded at 354 that:
"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of 8 years or more in total, often, but not always, are cases where more than one child has been victimised or where there has been multiple offending over an extended period and the offending has included sexual penetration in one form or another, or where some degree of violence, cruelty or aggression or threats have been employed."
His Honour also noted that in relation to those cases which might be regarded as being not in the worst category, sentences of 6 years or less had been imposed (at 357).
Communicating the collective sentencing experience of the judiciary is one of the responsibilities of a Court of Appeal (Wong v The Queen (2001) 207 CLR 584 per Gleeson CJ at 591). It is to that end that we have undertaken the exercise the results of which appear in what follows. It must be emphasised that our purpose is to set out an historical survey, as well as identifying some factors particularly relevant to sentence in cases of this kind, rather than be prescriptive about what sentences should be imposed in particular cases (see Gleeson CJ at [42] and Callinan J at [165] in Wong (supra)). Nothing in what we say should be taken to mean a sentencing Judge may not impose a non‑custodial penalty or one outside an apparent range if the circumstances of the individual case clearly demand such a disposition in accordance with proper legal principle.
It has been said on a number of occasions recently that there has been a "firming‑up" of sentences in cases involving sexual offences against children, as the courts have, over the years, gained a better understanding of the long‑term effects of such offending upon the children concerned: see, for example, S v The Queen [2004] WASCA 113 per Malcolm CJ at [56] and [71] (Templeman and Miller JJ agreeing), Rogers v The Queen [2004] WASCA 147 per Templeman J at [54] and per Miller J at [95].
It is desirable to spell out in a little more detail precisely what is meant by that "better understanding". It is fair to observe that if one goes back more than a decade in relation to such cases, there is frequently a degree of emphasis placed upon factors such as loss of virginity or risk of pregnancy (in relation to young girls) and to considerations such as threats of force or violence. These factors remain of significance.
However, more information about the effects of this type of offending often emerges from the more detailed submissions now made by the State at the time of sentencing, and a pattern emerges from victim impact statements. Hypotheses about the likely effect of such behaviour on young children can be tested against evidence, which emerges at trial or which is contained in victim impact statements, from adult women who now come forward as complainants in relation to sexual offences which occurred against them many years ago, and in whose lives the effect of such offending has had time to develop.
In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self‑worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self‑harm, and attempted suicide.
In some of the past cases one can detect a sense that if an offender's wife, or other members of the family, were said to be "standing by him", that was seen as potentially mitigating. It is now understood, however, that most child complainants feel that the abuse is to some degree their fault and that broken family relationships are their responsibility, so that the estrangement of a complainant from other members of the family which often occurs where family members "take sides", is rightly seen now as yet another serious consequence of the offender's choice to offend in that way.
In cases where the offender is not a family member or trusted adult, even in a loose sense, the effect upon family relationships and the child's sense of trust is not such a significant factor, but, depending upon the circumstances, there can nevertheless be very serious consequences in terms of loss of confidence in dealing with others, and damage to self‑esteem, even where there are not overt threats, force or violence.
The effects to which we have referred are particularly evident in cases where sexual offending against the child has been frequent and/or has occurred over a long period. It hardly needs to be said that all sexual offending against a child is reprehensible. However, where there is an isolated occurrence, then, depending upon the circumstances, it may well be that, with support, a child will be able to overcome the experience, in the way that other adverse events can be largely overcome. The difference in cases of prolonged offending against a child is that the whole of the victim's childhood and potential for normal development is taken from him or her. When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so the likelihood of very significant harm to the victim or victims of the offending is dramatically increased. In the majority of such cases, cumulation of sentences is therefore to be expected, to reflect the increasing severity of effect upon the victim; as well as to reflect the fact that the offender has not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences.
Cumulation of sentence is also to be expected where there is more than one victim. That is consistent with patterns of sentencing in relation to other types of offences. In such cases, we note, however, the frequently cited observation that totality is of marginal importance "particularly where each victim is aware of the offending conduct perpetrated on the other" (DeLuce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, per Ipp J). One can imagine that there will be cases in which one child's awareness of the offending against another will be of significance (eg, where, as is not unusual in such cases, there is particular deviance, or violence in order to dominate more than one child at a time, or where an older child has the additional burden of feeling himself or herself helpless to protect the younger). However, it is difficult to regard such awareness, or lack of it, as necessarily making one case more or less serious than another, since where each child believes that he or she is the only victim, there may be an increased sense of isolation and shame felt by each.
The way in which questions of totality are considered is also likely to have been affected by Pearce v The Queen (1998) 194 CLR 610. Prior to that case, it was not unusual for a sentencing Court to commence with an instinctive view of the appropriate overall sentence for the totality of the offending, and to impose sentences for individual offences to reflect that impression. Pearce, however, requires the reverse process. That is, a sentencer is first to arrive at the appropriate sentence for individual offences, and then to consider questions of cumulation or concurrency. In many cases, particularly where offending has occurred regularly over years, the total of the sentences so imposed, before any considerations of concurrency, will be very high, often significantly exceeding the average span of a human life. A sentencer coming to arrive at an appropriate "total" penalty in such a case cannot help but be struck by the contrast between the sentence which would be imposed if each individual offence were considered separately, and the sentence which will actually be imposed, once totality considerations are taken into account. That process may, since 1998, have resulted in some degree of increase in the total sentences imposed in cases with very significant numbers of counts.
One would also expect to see, over the period since 1985, some gradual firming‑up of sentences to reflect the Court's understanding that the alteration in penalties for sexual offences, which was effected in that year, was done with the legislative intention "that the actual penalty in the worst case should be towards the top of the maximum penalty" (R v Ginder (supra) at 5‑6, per Pidgeon J). That legislative intention would be expected gradually to influence sentences for single and multiple offending of the relevant type.
Against that background, we have looked to more recent patterns of sentencing for offences of a sexual nature against children. We have examined some 25 cases of multiple sexual offending against children between 1999 and 2005. All are cases in which there had been a plea of guilty. The sentences imposed are therefore generally sentences which have been discounted somewhere between 20 per cent and one‑third. Because these are often "oath against oath" cases, so that conviction is usually far from inevitable, and because of the trauma which the victim of the offence is spared by reason of the plea, the discounts would generally be towards the higher end of the scale.
Since during that period, the Sentencing Legislation Amendment and Repeal Act 2003 (the "transitional provisions") came into operation (on 31 August 2003) it is necessary to adjust, either by scaling later sentences up, or scaling earlier sentences down, in order to find a true comparison.
The cases we examined were selected on the basis that they involved more than five sexual offences against a child, or against a number of children, or involved a charge of maintaining a sexual relationship with a child, in circumstances where it was clear that there had been multiple offending. In the majority of cases, there has been at least one count of sexual penetration of a child's vagina or anus by the offender's penis. There are some exceptions, in which there has been no such penetration; for example, Pendleton v The Queen [2002] WASCA 4 involved digital penetration only, together with indecent dealing, possession of child pornography and indecent recording, but, where there is offending of that kind in the cases selected, there has usually been a very significant number of counts (Pendleton, for example, involved 129 counts, together with some summary offences dealt with under a s 32 notice).
Accepting that each case in this area turns very much on its own facts, and that there is no tariff, it is nevertheless useful to consider what are the usual sentences imposed, and what is the range of sentences imposed. Only against that information can a claim that a term is either within or outside the appropriate range be understood. The cases which we have reviewed are listed in Sch A to these reasons. We there set out only the reference to the case and the total effective sentence; the facts and circumstances giving rise to the sentences must be gleaned from the reasons given in the particular case.
An examination of those cases (scaling up where necessary, to arrive at sentences as they were or would have been prior to the transitional provisions) reveals a sentencing range from suspended terms (two in total) to a term of 20 years. There are five terms of immediate imprisonment falling within the range 1 to 5 years (several being exactly 4 years and none of 5); one in the range 5 to 9 years; 11 in the range 10 to 14 years (with 10 years being the most common - five in total in this category); five in the range 15 to 19 years; and one of 20 years. In each case, any odd months have been rounded down, so that a term of 10½ years would fall into the category of 10‑year terms. Approximately two‑thirds of the sentences, then, fell into the range of 10 to 19 years, while one‑third involved either suspended terms or terms of 9 years or less.
If one assumed in relation to those cases that there had been a discount of between 20 per cent and one‑third for the plea of guilty, then the range of sentences one would expect to see imposed in similar cases after trial (prior to the transitional provisions) would be a range of up to 30 years, with the most common term being somewhere between 12½ and 15 years.
The sentences imposed in recent years can then be compared with the "worst cases" selected by Anderson J in Woods, and with Shepherdson. Podirsky received an aggregate custodial term of 18 years. Although Anderson J refers to him as being sentenced "after trial" in each case, it appears that, in relation to the first convictions relating to his stepdaughter, he pleaded guilty to some offences. That aggregate term is somewhat in excess of the 12½ to 15 years which we have indicated would be the most common sentence one would expect to see after a plea of guilty, but well short of the 30 which results from the "scaling‑up" in the case of "B" v The Queen [2002] WASCA 236 to reflect what one might have expected without a discount for a plea of guilty in that case. The term of 18 years is close to some of the sentences imposed following a plea of guilty.
Petchell involved a long history of intimidation and sexual intercourse by a father upon his stepdaughter, involving two pregnancies, cruelty, physical aggression, threats, and the child's alienation from her natural mother. The offender was convicted after trial. On a Crown appeal (R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993), a sentence of 12 years in aggregate was imposed. Again, that appears to be well under that which would be considered appropriate, having regard to more recent sentences. It is, in part, explained by the fact that it was a Crown appeal. Jarvis involved serious offences against a stepson and a natural daughter. The offender was convicted after trial. The total effective term imposed was 15 years, which also does not appear to be severe, having regard to more recent cases.
Shepherdson v The Queen was an extremely serious case involving sexual assaults on three daughters and the offender's wife, including what the Court described as "the chilling victimisation" of very young girls, involving physical damage to them, with threats of violence throughout, various of the complainants required to engage in sexual acts with each other, and forcing the offender's wife to submit to bestiality. That case did involve a plea of guilty and there were mitigating circumstances in relation to the offender, who was himself the victim of serious sexual abuse and was (perhaps because of that fact) an alcoholic. He was also, however, at high risk of reoffending. The total aggregate sentence of 15 years imposed in that case is, when seen against the range of sentences imposed more recently, rather low. One would have expected a term comparable with that imposed on "B" of 20 years, or thereabouts, even allowing for the plea of guilty.
It is very clear that sentences for multiple counts of sexual offending against a child have significantly "firmed‑up" since the survey undertaken by Anderson J. Cases such as Podirsky, Jarvis, Petchell, and Shepherdson, can no longer be regarded as reliable guides. Offending of the type described in them is now regarded significantly more seriously. It should also be noted, in this context, that in a number of the more recent cases reviewed, older examples such as Jarvis and Podirsky were apparently seen as setting roughly an "upper limit". Bishop v The Queen [2002] WASCA 79 (16 years, pre‑transitional provisions) and Morley v The Queen [2001] WASCA 49 (13 years, pre‑transitional provisions) are examples of such cases.
Of course, as the survey of cases we have undertaken indicates, recent "firming‑up" does not mean that it would be appropriate to impose the extraordinarily lengthy terms which are arrived at simply by adding together sentences properly imposed in respect of each individual count. Considerations of totality arise. Considerations of comparability with other offences also arise.
Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003. The "lower end" cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two‑thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19‑year range). A term other than immediate imprisonment would be imposed only in the most unusual of cases (eg Marris v The Queen [2003] WASCA 171, where the six counts all occurred over the space of one evening, the offender and complainant were unrelated, the offender was a particularly immature young man, the complainant was 13, and there was no question of any force, threat, or "grooming"). Those sentences, we stress, are the range one would expect to see after a plea of guilty.
We have endeavoured to undertake the same exercise in relation to sentences imposed after trial. However, it seems that the sample is too small, and too diverse, to be reliable. In roughly the same category of cases - that is, involving more than five sexual offences against a child or children - we located only nine cases during the same period. The majority of those appeared to involve relatively fewer counts than did the cases we reviewed where there had been pleas of guilty. Two of them were State appeals. A number of them involved offences which had occurred a considerable period ago, so that there were mitigating factors such as the age, ill health and reduced life expectancy of the offender (eg, State of Western Australia v Henderson [2005] WASCA 89), or the offender's voluntary return from overseas to face trial (eg, "S" v The Queen [2001] WASCA 245). We attach a Schedule of those cases as Sch B to these reasons.
Having regard to the small size of the sample, and the factors to which we have referred, a more reliable guide to appropriate sentencing in cases of frequent or prolonged sexual offending against a child or children, following trial, is to be found by undertaking the sort of "scaling‑up" exercise to which we have referred. If one assumed a discount for a plea of guilty of the order of one‑third, then the range of sentences we have discussed in relation to those cases where there had been a plea of guilty, but prior to the transitional provisions, would be roughly appropriate. That would, of course, only be the case where the offending was truly comparable to that occurring in the plea of guilty cases discussed. If, as the small sample we have found appears to indicate, it is the case that there are often relatively fewer counts, and more limited offending, in relation to those offenders who go to trial, one would expect to see the aggregate sentences correspondingly reduced to reflect that fact. Further, "scaling‑up" would be likely to result in some undue inflation, since some of the cases involving a plea of guilty involved an unusually small discount for the plea, because of factors peculiar to the particular case (eg, Broome - 1 year discount only).
The most that can be said, perhaps, is that, after the transitional provisions the authorities reviewed suggest an aggregate sentence of 10 to 19 years would be imposed after trial in most cases of very serious repeated sexual offending where the offences are representative of a course of conduct.
Finally, we turn to those cases in which there have been fewer than five counts of sexual abuse of a child and there has been a plea of guilty. Again, the sample located has been relatively small. We found nine cases which appear to fall into this category between 1998 and 2005. They are attached as Sch C. Those offences do not display anything which could reasonably be regarded as a pattern. Three attracted sentences which did not involve immediate terms of imprisonment. If one converts to the sentences which would be imposed after the transitional provisions and rounds down so that a sentence of 4½ years, for example, would be regarded as a sentence of 4 years, one each of the offenders who received a term of immediate imprisonment received a term of 1, 2, 3, 4, 5 and 6 years. This is a very considerable range.
At one end of the range were cases such as State of Western Australia v ABM [2004] WASCA 90, in which the complainant (although mildly intellectually disabled) invited the offender into her bed, and the offender was himself relatively youthful, being 9 years older than the 15‑year‑old complainant. By contrast, Rogers v The Queen [2004] WASCA 147, involved penile vaginal penetration of the 11‑year‑old complainant, who was a stepdaughter of the offender. The two counts to which he pleaded guilty were not isolated incidents and, despite his plea, he nevertheless maintained the complainant was a "little liar", so that one would expect the discount for the plea to have been reduced somewhat for the apparent lack of remorse. This category of cases demonstrates most clearly that wide variety of circumstances which have led to the frequently repeated proposition that there is no "tariff" for sexual offences.
For completeness, we note that the survey we have undertaken of course covers only cases which have been the subject of appeal. We have endeavoured to find data of a more general kind. However, such data is readily available only in relation to offences which are defined to involve sexual offending against a child, such as s 320 Criminal Code (sexual offences against a child under the age of 13 years); and s 321 (sexual offences against children between 13 and 16 years of age). Some serious offences have often been charged simply as, for example, aggravated sexual assault, so that there is no ready way of separating those involving child and adult victims (Ferrante & Fernandez, "Sex Offences Against Children", Crime Research Centre, University of Western Australia, April 2002, p 13). In any event, there is limited data on aggregate terms, as opposed to sentences for individual offences (Ferrante & Fernandez, pp 3‑4).
In the present case, when her Honour was considering the issue of concurrency and cumulation, she said (t/s 1236 ‑ 1237) that:
"I consider that it is appropriate that the sentence [sic: sentences] in relation to each complainant should be concurrent. The offences reflect a continuing course of conduct, albeit over an extended period of over four years."
It is true that the offences in respect of L reflected a continuing course of conduct over an extended period of four years, but that would not justify making all of those sentences wholly concurrent unless that consequence was made necessary by some other principle, such as that of totality where there were sentences for other offences to be taken into account. Absent such additional consideration, making all the sentences with respect to L concurrent would necessarily not have resulted in any additional punishment for any offence after the first and would therefore not have been an appropriate reflection of the respondent's overall criminality with respect to L (see Bishop v The Queen (supra)). The same analysis applies to the sentences with respect to the offences against J.
Her Honour also made several references to the respondent's "young son" and the distress of the respondent as a result of his consciousness of the stress that his imprisonment and situation were having on "his young son". In fact, the "young son" was, at the time sentencing, a 21‑year‑old man who had not lived with the respondent since 1995.
The proposition that the respondent's time in prison would probably be very difficult for him because of his knowledge of the stress his situation and imprisonment are having on his (adult) son and the respondent's personal circumstances (that he had lost everything as a consequence of his business failing following him being charged with these offences), was not a matter to which significant mitigatory weight should have been given. Her Honour clearly did attribute that to it. Her Honour's reference to the respondent's "young son" would seem to indicate that she was thinking of the distressed boy who was 12 years old in 1995, when the offences were first revealed to the family. In any event, none of these personal circumstances were unique to, nor outside the experience of other offenders: many, if not most, would have loved ones, including young children and spouses or partners who would suffer as a result of their incarceration and many would have lost their livelihoods as a consequence of it. In short, none of those matters to which her Honour referred brought the respondent into that category of offender which would justify reducing an otherwise appropriate sentence because imprisonment would be more arduous for him than other prisoners (cf R v Bekink (1999) 107 A Crim R 415 and the authorities there referred to at [9] ‑ [11]).
Both in imposing individual sentences and more particularly in fixing an aggregate sentence appropriate to the respondent's overall criminality, the sentencing Judge gave a degree of weight to his previous good character and matters personal to him which, on any view, could not properly be justified having regard to the principles applicable to sentencing for offences of this kind. As Anderson J (with whom Kennedy J and Stein AJ agreed) said in Bell v The Queen [2001] WASCA 40, at [12]:
"… in cases of intra-familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone except children in the family and will usually be most unlikely to re‑offend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting and who are in a position to conceal their offending."
(Se also R v GP (1997) 18 WAR 196 per Malcolm CJ at 207).
A similar point was made by Franklyn J (Walsh and Rowland JJ concurring) in R v Petchell (supra) at 10, when his Honour pointed out that in cases involving offences of a sexual nature, the fact that the offender is otherwise of good character can have only little weight. The offences are of such a nature that, until brought to light, they generally do not impinge upon others nor upon their perception of the offender and can coexist quite comfortably, so far as the offender is concerned, with an otherwise apparent good character. That was very much the situation in this case.
In this regard it should also be noted that the respondent did not cease his offending of his own volition, but because the opportunity for further offending was no longer available. Indeed, when L was no longer available to him, he turned his attentions to her sister J, and only stopped offending in relation to her when she left home. There was no remorse and no contrition. There was no plea of guilty which could carry with it any mitigatory effect. In the circumstances, matters personal to the respondent (and in particular his previous "impeccable" good character) were properly incapable of carrying the substantial weight in mitigation which the sentencing Judge obviously gave to them.
The foregoing conclusions of themselves indicate a miscarriage of the exercise of the sentencing discretion. However, we are persuaded that error is also revealed in the actual sentences imposed by her Honour in respect of the rape and aggravated sexual penetration offences as well as the aggregate term of imprisonment. Against the background of the range of sentences imposed for offences of penile penetration, particularly of children under 16 years of age, and particularly where the offences are representative of a course of conduct extending over a number of years by an offender abusing his position of trust as a parent (or stepfather), a sentence of 4 years 4 months (equating to one of 6 years 6 months' imprisonment prior to 31 August 2003) is so much below the range as to show manifest inadequacy. That is especially so where there is no significant mitigating feature, such as remorse, contrition, an early plea of guilty, voluntary termination of the offending due to the realisation of the nature of it, or the like.
An aggregate term of imprisonment of 6 years (equivalent to a pre‑August 2003 term of 9 years' imprisonment) manifestly fails to reflect the respondent's overall criminality constituted by this series of offences. This was not a case in which the offences constituted a series of one course of criminal conduct, nor comprised essentially a single transaction. An aggravating feature of the case was that the respondent's offending was against two complainants, and essentially over different periods of time, over some eight years. Nor was this a situation in which a more substantial overall sentence than that imposed by her Honour could be regarded as "crushing". And as we have said, proportionality to the overall offending required an appreciably more substantial overall term.
By making an order that the sentences be served concurrently to the extent that she did, her Honour failed to have sufficient regard to the facts that some offences were committed when L was under 16, with sexual intercourse occurring for the first time when she was 14 years old; the respondent was 12 years older than her and was her stepfather at the time; the sexual abuse persisted against her for four years and there was a period of grooming leading to the first act of sexual intercourse; that sexual intercourse commenced against J when she was under 16 and he was 16 years older than her at the time and was her stepfather and the offences persisted against her for four years (not including any grooming conduct). This demonstrated persistent offending over a period of at least eight years against two separate complainants, each of which involved a gross abuse of trust.
In our opinion, each of the grounds of appeal has been made out. It accordingly falls to this Court to exercise the sentencing discretion afresh. In doing that, however, it is necessary to allow for the fact that this is a re‑sentencing following a State appeal, by imposing sentences somewhat less than would properly have been imposed at first instance.
In respect of each of the offences of rape and sexual penetration without consent (counts 1, 7, 8, 10, 13, 20, 23, 25, 26, 29, 34, 36, 37, 39, 41, 42, 43 and 44), we would impose a sentence of 6 years' imprisonment to be served concurrently (equivalent to a pre‑August 2003 sentence of 9 years' imprisonment). For each of the indecent assault offences (counts 6, 9, 12, 16, 17, 18, 19, 21, 22, 24, 35, 38 and 40) we would impose a sentence of 2 years' imprisonment (equivalent to 3 years pre‑August 2003).
The 2‑year sentences on counts 6, 9, 12, 16, 17 and 18 should be served concurrently with each other but cumulatively upon the 6‑year sentences; the 2‑year sentences on counts 19, 21, 22, 24, 35, 38 and 40 should be served concurrently with each other but cumulatively on the first group of 2‑year sentences. That would produce an aggregate term of 10 years' imprisonment (equivalent to one of 15 years prior to August 2003), which would appropriately reflect the applicant's overall criminality, yet still accommodate the constraints on resentencing following a State appeal. The 6‑year sentences should be backdated to commence on 2 February 2005. We would order that the respondent be eligible for parole.
SCHEDULE A
| Case | Total Effective Sentence |
| "G" v The State of Western Australia [2005] WASCA 150 | 9 years 6 months with parole |
| TJD v The State of Western Australia [2004] WASCA 310 | 7 years |
| Germain v The State of Western Australia [2004] WASCA 293 | 2 years 8 months with parole |
| State of Western Australia v DMS [2004] WASCA 255 | 7 years |
| R v Dickens (2004) 147 A Crim R 343 | 6 years 8 months with parole |
| S v The Queen [2004] WASCA 113 | 10 years |
| Playle v The Queen [2004] WASCA 86 | 10 years |
| Bosworth v The Queen [2004] WASCA 43 | 12 years |
| LSC v The Queen [2003] WASCA 303 | 11 years with a non‑parole period of 9 years |
| Marris v The Queen [2003] WASCA 171 | Order that the balance of the 3‑year term imposed by the sentencing Judge be suspended for 18 months |
| R v Chilvers [2003] WASCA 87 | 3 years suspended |
| Bishop v The Queen [2003] WASCA 79 | 16 years with parole |
| D v The Queen [2003] WASCA 33 | 11 years with parole |
| Merino v The Queen [2003] WASCA 18 | 12 years with parole |
| R v Hunt [2002] WASCA 324 | 3 years with parole |
| B v The Queen [2002] WASCA 236 | 20 years |
| R v Avery [2002] WASCA 136 | 4 years |
| R v Hough [2002] WASCA 42 | 8 years with parole |
| Pendleton v The Queen [2002] WASCA 4 | 12 years with parole |
| R v EPR [2001] WASCA 214 | 4 years with parole |
| R v Western [2001] WASCA 194 | 4 years 6 months with parole |
| Morley v The Queen [2001] WASCA 49 | 13 years |
| R v CW (2000) 111 A Crim R 287 | 10 years |
| Broome v The Queen [1999] WASCA 202 | 17 years with parole |
| Trescuri v The Queen [1999] WASCA 172 | 10 years |
SCHEDULE B
| State of Western Australia v Henderson [2005] WASCA 89 | 13 months |
| Liddington v The State of Western Australia (2005) 152 A Crim R 502 | 3 years 8 months |
| Lawrence v The State of Western Australia [2005] WASCA 14 | 5 years 4 months |
| S v The Queen [2001] WASCA 245 | 8 years with parole |
| Boudville v The Queen [2001] WASCA 133 | 11 years with parole |
| King v The Queen [2001] WASCA 103 | 10 years with parole |
| R v Major [2001] WASCA 46 | 6 years with parole |
| Clegg v The Queen [2000] WASCA 326 | 10 years 6 months with parole |
| Cook v The Queen (2000) 22 WAR 67 | Aggregate term of 11 years with parole |
SCHEDULE C
| "HAS" v The State of Western Australia [2005] WASCA 29 | 6 years |
| Rogers v The Queen [2004] WASCA 147 | 8 years |
| State of Western Australia v ABM [2004] WASCA 90 | 18 months suspended for 18 months; 18‑month ISO |
| Edwards v The Queen [2001] WASCA 263 | 4 years 6 months with parole |
| Chinnery v The Queen [2000] WASCA 295 | 6 years with parole |
| Little v The Queen [2000] WASCA 87 | 4 years with parole |
| R v Dalgety [2000] WASCA 10 | 18 months suspended for 12 months; 12‑month ISO with 175 hours community service |
| Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999 | 18 months with parole |
| "W" v The Queen, unreported; FCt SCt of WA; Library No 980597; 1 October 1998 | 2 years 6 months suspended for 2 years; 2‑year ISO with community service and programme requirement |
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