BRENNAN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 20 (24 February 2020)

1. Defence counsel did not give an opening address to the jury. The appellant elected not to give evidence in his defence. Having regard to the VROI and the manner in which his case was conducted, the defence case at trial was that he denied sexually penetrating P and that she was not a credible witness upon whom the jury could rely.

1. P's evidence was pre‑recorded on 16 November 2018. At this time, she was aged 16 years.[12] An edited version of the pre‑recording was played to the jury.
2. P testified that on the day in question she was on Christmas school holidays. P said that she woke up at about midday and her mother and stepfather were not at home. While she was watching television in the lounge room, the appellant, whom she had known all her life, came to the front door and asked if her mother and stepfather were at home. She replied, 'No'.[13]
3. According to P, the appellant asked if he could wait at the house until they came home. P agreed. P testified that she and the appellant watched television. After a period of time, the appellant grabbed her right hand with his left hand.[14] P said that she 'shoved him off', told him to 'go away' and asked, 'What are you doing?'.[15] She then described how the appellant pulled her down on the couch, got on top of her and held her arms over her head.[16] P testified that the appellant pulled down her shorts and underwear, leaving both items hooked on one of her ankles. He then pulled down his pants and underwear.[17] She testified that his underwear was black with blue writing on the top band which said 'Bonds'.[18]
4. P said that the appellant rubbed her clitoris with his left hand and then inserted his penis into her vagina. While the appellant was penetrating her, she told him to 'fuck off'.[19]
5. P had not previously engaged in sexual intercourse.[20]
6. P testified that when the appellant removed his penis from her vagina, he got off her and sat down. When this happened, the appellant said, 'Don't tell anyone'. P then showered. While doing so, she noticed that she was bleeding from her vagina. P said that she remained in the bathroom for 'an hour maybe. Half an hour'.[21]
7. P testified that after the incident, the appellant visited her house. When he came over, she would generally go into her room. She said that sometimes he walked past her in the kitchen and tried to touch her, but she would not let him.[22]
8. P said that after she went to the police she received a text message from the appellant that she retained on her mobile phone and which a police officer photographed. The message read:[23]

Hey did tell the cops about the day I tickled you and did fuck all to heart [sic] you.

1. In cross‑examination, defence counsel sought to undermine P's credibility by:

(a) Questioning P about why she did not make an immediate complaint about the appellant to her siblings, her mother and stepfather and her grandmother.[24]

(b) Questioning P about two alleged inconsistencies between her evidence and her two witness statements made on 3 January 2018 and 8 November 2018, being:

(i) In her police statement of 3 January 2018,[25] P said that when the appellant was on the couch with her, he grabbed her left hand with his left hand, which was inconsistent with her testimony that the appellant had grabbed her right hand with his left hand.[26]

P accepted the inconsistency and said that when she spoke to the State prosecutor prior to the pre‑recording, she realised that she had made an error in her statement of 3 January 2018.[27]

(ii) Defence counsel drew to P's attention that, in her statement of 8 November 2018, she wrote:

Since this incident, every time [the appellant] has been in the house I feel like he purposely walks very close to me and walks past me almost close enough to touch me, although he hasn't touched me since.

He observed that, in that statement, P made no mention of the appellant attempting to touch her after the alleged incident.[28] P responded that she had, in effect, said in the statement that the appellant tried to touch her.[29]

(c) Referring to the text message set out at [19] of these reasons and asking why she did not respond with words to the effect of, 'You didn't tickle me, you raped me'. P responded that she had been told by police not to reply to any attempt the appellant made to communicat[30]with her.30

(d) Taking P through the detail of her testimony which, in substance, she confirmed. At one point, in response to a leading question, P agreed that the appellant pushed her onto the couch.[31]

(e) Putting to P a series of propositions that she denied, to the effect that all that occurred was that the appellant and P had a pillow fight, during which the appellant ticked P 'at the top of [her] leg'.[32]

1. In re‑examination, P said that she did not immediately complain to members of her family because she was 'scared' and 'didn't know what to do'.[33]

1. Apart from P, the State's only other witness was the investigating officer, Detective First Class Constable Wade Bambling, who was one of the officers who conducted the VROI.[34]
2. Detective Bambling's evidence was uncontroversial. He testified that on 20 February 2018, the appellant participated in the VROI. An edited version of the interview was played to the jury. The recording was tendered as an exhibit (exhibit 3)[35] along with two sketches of P's house drawn by the appellant in the interview (exhibit 4).[36]
3. In the VROI, the appellant:

(a) Explained that he was a friend of P's mother and stepfather and that he had known P for most of her life.[37]

(b) Acknowledged that at the time of the incident P was under the age of 13 years.[38]

(c) Described how he went to P's house, watched television with her for a period of time in the absence of either P's mother or her stepfather.[39]

(d) Engaged in what he described as a pillow fight with P, during which he tickled her in the area of her groin, which caused her to get 'a bit uncomfortable'.[40]

(e) Admitted sending the text message referred to in [19] of these reasons. He explained that he did so after hearing rumours that P had gone to the police about the incident.[41]

(f) Denied the allegation that he had sexually penetrated P. When the detail of P's allegation was put to the appellant, he responded, 'That's never happened'.[42]

1. As already stated, the appellant elected not to give evidence. However, his mother, Clara Ann Eaton, testified in his defence.
2. Ms Eaton testified that around December 2014 the appellant was living at home. She said that she did his washing, including his underwear. Ms Eaton testified that the appellant wore Mantaray loose boxers. She said that the appellant did not wear Bonds underwear, although her partner did wear Bonds underwear.[43] In cross‑examination, Ms Eaton said that when she did the washing she did not mix the appellant's underwear with that of her partner.[44]

1. The appellant took no issue with the summing up, either at trial or on appeal. It is only necessary to note the following.
2. His Honour fairly and accurately summarised the evidence that had been adduced at trial and the cases made by the State and the appellant.
3. In dealing with the appellant's case, his Honour drew the jury's attention to defence counsel's submissions in support of the proposition that the jury could not accept P's evidence. In reference to those submissions, his Honour said:[45]

He [defence counsel] says, for example, that she [P] made a statement to the police where he says - where she said he grabbed her left hand with his left hand, then later on she says he grabbed her left hand with his right hand.

He [defence counsel] also points out that she [P] didn't say anything in her statement about when he was walking past he would try and grab her, saying to the police that he just walked close enough to touch her. [Defence counsel] says that at one stage she says [the appellant] pulled her down, on another occasion she says he pushed her down. He also points to inconsistencies about how long she says she stayed in the bathroom. Now, these, of course, are matters entirely for your consideration.

1. His Honour directed the jury's attention to the delay between the commission of the alleged offence and P's disclosure of it to the police. His Honour gave appropriate and balanced directions in respect of this issue, instructing the jury, in substance, that it could take the delay into account in assessing P's credibility.[46] His Honour also directed the jury, as he was required to by s 36BD of the Evidence Act 1906 (WA), that the absence of a complaint or delay in complaining does not necessarily indicate that the allegation is false and there may be good reason why a complainant of a sexual offence may not immediately complain.[47]
2. His Honour gave a detailed and correct direction[48] in accordance with Longman v The Queen.[49] In the course of doing so, his Honour directed the jury that they could not convict the appellant unless they scrutinised with 'special care' and were satisfied that P's testimony was 'truthful, honestly given, reliable and accurate'.[50]

1. At the hearing of the appeal, the appellant, who is self‑represented, relied upon the brief written submissions in his appellant's case and supplemented them with further written submissions which were handed to the coram. We have read and considered them.[51]
2. In essence, the appellant asserts that he has been wrongfully convicted on the uncorroborated evidence of P. In substance, he submitted that, having regard to the issues of credibility summarised by the learned trial judge in his summing up and set out in [29] of these reasons, P's evidence concerning the brand of underwear he allegedly wore at the time of the offence, the absence of any forensic evidence capable of confirming P's allegation and the denials he made in the VROI, it was not open to the jury to convict him of the charge. To these submissions may be added P's delay in complaining to anyone about the incident.
3. In its written submissions, the respondent submits that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, based on P's evidence.[52] The respondent submitted that none of the matters raised by the appellant, either individually or in combination, are sufficient to give rise to a reasonable doubt about the appellant's guilt.[53]

1. The legal principles relevant to a ground of appeal which alleges that a guilty verdict is unreasonable or cannot be supported by the evidence are well settled. They were recently summarised by this Court in Wells v The State of Western Australia in these terms:[54]

(1) the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;

(2) the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;

(3) that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;

(4) in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;

(5) a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;

(6) if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;

(7) the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.

1. In our opinion, there is no merit to the ground of appeal.
2. The decisive factual issue for the jury to determine was whether the State had proved that the appellant sexually penetrated P.
3. In order to convict the appellant, the jury was required to be satisfied beyond reasonable doubt that the evidence of P, as to the elements of the offence, was honest and accurate, and that the appellant's denial that he did not sexually penetrate P could not reasonably be true.
4. P gave clear and unequivocal evidence that the appellant had sexually penetrated her as alleged. That evidence was subject to thorough cross‑examination. P did not resile from her testimony in any material regard. It must also be noted that, in the VROI, the appellant consistently denied sexually penetrating P. P's evidence, as the appellant, in substance, points out, was largely uncorroborated, although in the VROI the appellant confirmed some of the surrounding detail of P's account, both immediately before and after the alleged commission of the offence. For example, the appellant said that he went to P's family home on a day when she was alone and watched television with her in the lounge room. The appellant admitted physically touching P in the area of her groin and that, afterwards, P left the lounge room.
5. It is common for juries to be faced with cases involving allegations of sexual misconduct where the alleged victim's testimony is either uncorroborated or corroborated only in part, and must be considered against an accused's denial. However, the mere fact that the prosecution case depends on the acceptance of the complainant's uncorroborated evidence which was disputed by the appellant, does not mandate a conclusion that the jury must have entertained a reasonable doubt about the appellant's guilt.[55]
6. Our examination of the trial record does not reveal discrepancies or inadequacies in such a way as to lead us to conclude that it was not open to the jury to accept, beyond reasonable doubt, P's testimony as to the elements of the offence. The jury were directed to subject P's evidence to special scrutiny and were given an appropriate Longman warning. The inconsistencies identified by the appellant's trial counsel, and upon which the appellant relies in this appeal, are minor and do not, to our minds, give rise to a doubt as to the accuracy and reliability of P's testimony that she was sexually penetrated by the appellant. It was open to the jury to be satisfied that it mattered little whether P had made an earlier inconsistent statement as to which hand the appellant used to restrain her, or whether the appellant pulled or pushed P onto the couch, or how long P said she stayed in the bathroom.
7. Bearing in mind the jury's advantage in seeing and hearing Ms Eaton's evidence, it was open to the jury to reject her evidence. Even if the jury were minded to accept it, the fact that P misidentified the brand of underwear being worn by the appellant does not lead to the conclusion that P's evidence was untruthful or generally unreliable. P's explanation as to why she did not immediately complain is readily explained by the combination of her young age, fear, and inability at the time to know what to do. In our opinion, it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt despite his denial in his VROI and all of the factors raised by the appellant at trial and in this appeal.
8. In a case of this nature, the jury's advantage in seeing and hearing the complainant give her evidence is considerable.[56]
9. Having considered the whole of the evidence adduced at trial, we are far from persuaded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Based on that consideration of the evidence we do not have a reasonable doubt as to the appellant's guilt. Moreover, any doubts to which the matters relied on by the appellant might give rise are capable of being resolved by the jury's advantage in seeing and hearing the witnesses. There is no significant possibility that an innocent person has been convicted. The verdict of guilty was not unreasonable or unsupported by the evidence led at trial.
10. For these reasons, leave to appeal on ground 1 should be refused, and the appeal dismissed.
11. The orders that we would make in respect of the appeal against conviction are:
    1. Leave to appeal is refused.
    2. The appeal is dismissed.

Application for leave to appeal against sentence Findings of fact and observations made by the sentencing judge

1. The primary judge made findings of fact for the purposes of sentencing which, in substance, reflected P's testimony. His Honour summarised the facts of the offending in these terms:[57]

... on an unknown date between November '14 and January '15, [P] was alone at her home. You were a family friend: you have known [P] for virtually all of her life.

You went to the residence, as I understand it, to see her mother and stepfather, who you were friendly with. After having knocked on the door and ascertained that they were not there you asked, in essence, if you could stay and wait. The child had no difficulty with that. The two of you, as I understood it, sat on a couch for a period of time watching TV for around half an hour.

And it seems that then, you grabbed the complainant, she pushed you away, you grabbed her again, pushed her onto the couch and shortly after that, pulled her arms above her head, removed her clothing, pulled down your clothing, and then sexually penetration [sic] her for a period which was estimated to be between five to 10 minutes. The young complainant said that she was struggling, telling you, in essence, to leave her alone - although not in that language - and after you had completed the act of intercourse, you got off her, she showered.

1. His Honour found that the appellant's offending behaviour was 'forceful and violent'.[58] His Honour observed that the appellant overpowered P and penetrated her in circumstances where she was 'struggling and resisting'.[59] His Honour characterised the offending as 'opportunistic'.[60]

1. At the time of the commission of the offence the appellant was 33 years of age. His Honour noted that the appellant had worked in a variety of occupations including wool classing, shearing, tractor driving and farm labouring. He said that it was to the appellant's credit that he had been in gainful employment. The learned sentencing judge acknowledged that he had received four character references that spoke 'very highly' of the appellant.[61] His Honour observed that the appellant enjoyed the support of his family.[62] The appellant had what the learned sentencing judge described as 'a relatively minor record' for traffic offences and offences relating to the possession of illicit drugs. He had no prior convictions for offences of violence or relating to any sexual impropriety.[63] His Honour accepted that the appellant was unlikely to offend in a similar manner again and that there was 'no need for a sentence with a specific element of personal deterrence'.[64]

1. His Honour took into account P's victim impact statement. As a result of the appellant's offending, P moved away from home because she was afraid of seeing him in the country town in which they lived. She encountered difficulties sleeping which, in turn, affected her performance at school to the point where she stopped attending school. P said that, because she stayed at home, her friendships suffered. P stated that there had been more than one episode of self‑harm and that she felt so much stress that her hair began to fall out.

1. The general principles concerning appeals contending that a sentence is manifestly excessive are well‑established and were explained in Jiang v The State of Western Australia in these terms:[65]

(1) A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

(2) The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.

(3) The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

(4) A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

(5) When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

1. As in the appeal against conviction, the appellant is a self‑represented litigant. In his written submissions, which he was content to rely upon at the hearing of the appeal, the appellant submitted that, having regard to his personal circumstances, in particular the absence of a prior relevant record, the sentence of 5 years' immediate imprisonment was longer than that required to serve all the purposes of sentencing, including deterrence and punishment, and was manifestly excessive.

1. The maximum penalty for an offence contrary to s 320(2) of the Code is 20 years' imprisonment.
2. There is no 'tariff' for offences of the kind committed by the appellant. However, it is well accepted that the primary sentencing considerations for offences of the type committed by the appellant are appropriate punishment and general and personal deterrence with the aim of protecting vulnerable children from abuse. Accordingly, matters personal to an offender carry less mitigatory weight.[66]
3. The appellant cited no comparable cases. Our research has revealed only two cases where individual sentences for offences contrary to s 320(2) of the Code have been reviewed, namely LJP v The State of Western Australia and KAT v The State of Western Australia.[67] The factual circumstances of LJP v The State of Western Australia are very different to the present case. This case can be put to one side. In KAT v The State of Western Australia, the appellant was convicted on his pleas of guilty of one count of sexually penetrating a child under the age of 13 years by engaging in cunnilingus and four counts of indecently dealing with the same child. The offender was sentenced to 4 years' immediate imprisonment for the offence contrary to s 320(2). He alleged that sentence was manifestly excessive. The court rejected this contention, and dismissed the appeal more generally. Of course, the outcome of one case provides little or no assistance in the process of deciding whether a particular sentence is manifestly excessive.
4. It is unnecessary to repeat the circumstances of the offence committed by the appellant. It was self‑evidently a serious example of its type, having regard to the combination of the following factors, namely P's age; her vulnerability, including that she was home alone without the protection of her mother or stepfather, as the appellant well knew; the appellant's use of force to overcome P's resistance to the commission of the offence; that the appellant forcibly sexually penetrated P's vagina with his penis; that he took advantage of his position as a family friend of the victim; and that his actions have had a serious adverse ongoing effect upon the victim. Although absence of consent is not an element of an offence contrary to s 320(2), the fact that the appellant sexually penetrated P without her consent is a very significant aggravating sentencing factor.[68]
5. We take into account that the appellant has no prior convictions for violent or sexual offences, is well‑supported by his family and members of his community, has a good work record and is unlikely to reoffend in a like manner. Of course, while not aggravating factors, the appellant did not have the mitigation of youth, a plea of guilty or a finding of genuine remorse.
6. Having regard to the considerations referred to above, we are far from persuaded that a sentence of 5 years' immediate imprisonment in the circumstances revealed in this case was manifestly excessive. The sentence was well within the range of an appropriate exercise of the sentencing discretion. Accordingly, leave to appeal should be refused and the appeal dismissed. The orders that we would make in relation to the application for leave to appeal against sentence are as follows:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[4] WAB 6; s 30(3)(a) Criminal Appeals Act 2004 (WA).

[49] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[51] These submissions were marked (1) at the hearing.

[54] Wells v The State of Western Australia [2017] WASCA 27 [13].

[55] NSG v The State of Western Australia [2019] WASCA 194 [79].

[56] See, for example, Greenland v The State of Western Australia [2017] WASCA 83 [139].

[65] Jiang v The State of Western Australia [2020] WASCA 7 [75].

[66] The State of Western Australia v FJG [2012] WASCA 206 [56].

[67] LJP v The State of Western Australia [2010] WASCA 85 and KAT v The State of Western Australia [2017] WASCA 11.

[68] See, by analogy, Greenland [209].