Criminal law and procedure - Appeal - Application for extension of time and leave to appeal against conviction - Application to adduce new evidence on the appeal - Complainants denying contact with each other - Note of one complainant apparently of name and telephone of other - Telephone records showing calls made - Whether relevant and cogent

Criminal law and procedure - Appeal - Application for leave to appeal against sentence - Sexual offences - Whether individual sentences manifestly excessive - Aggregate of 8 years 4 months' imprisonment - Totality - Whether disproportionate to appellant's overall offending - Whether "crushing" - Whether reasonable prospect of success on appeal

Application for extension of time within which to appeal against conviction dismissed

Application for extension of time to appeal against sentence granted

Buckland v The Queen, unreported; CCA SCt of WA; Library No 980144; 3 April 1998

Craig v The King [1933] HCA 41; (1933) 49 CLR 429

Hapke v The State of Western Australia [2006] WASCA 188

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Martino v The State of Western Australia [2006] WASCA 78

Mickelberg v The Queen (2004) 29 WAR 13

Miller v The State of Western Australia [2006] WASCA 163

Pileggi v The Queen [2001] WASCA 260

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Crofts [1998] QCA 60; [1999] 1 Qd R 386

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stephenson v The Queen [2001] WASCA 98

Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

White v The Queen [2006] WASCA 62

1 ROBERTS-SMITH JA: These are applications for extension of time within which to appeal against conviction and sentence, to rely on additional evidence not adduced at trial and for leave to appeal.

2 On 11 April 2005, the appellant was presented before Wager DCJ and a jury in the District Court at Perth on an indictment containing 11 counts. On 19 April, following a six day trial, the jury returned verdicts of guilty on two offences of sexual penetration of a child and five counts of indecently dealing with a child. They returned verdicts of not guilty of four other counts of sexual offences. On 12 May 2005, the appellant was sentenced to a total of 8 years 4 months' imprisonment, backdated to 19 April 2005, and an order was made that he be eligible for parole.

3 The appeal notices were not filed until 20 October 2006. By s 28(3) and (4) of the Criminal Appeals Act 2004 (WA), an appeal had to be commenced within 21 days of the date of sentence. The previous provision was s 695(1) of the Criminal Code, which stipulated a time limit of 21 days from the date of conviction for an appeal against conviction, and 21 days from the date of sentence for an appeal against sentence. Either way, these were accordingly some 18 months out of time. Such a delay is inordinate. Delays of even a few months have been described as "gross".

4 As Malcolm CJ (Franklyn and Wallwork JJ concurring) explained in Buckland v The Queen, unreported; CCA SCt of WA; Library No 980144; 3 April 1998 at 3 - 4:

"In Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 at 2-3 Burt CJ said:

'This Court has on a number of occasions pointed out that the time limit fixed by s695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the Court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the Court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. The discretion has always been exercised by this Court having regard to those two broad considerations and it would seem from the cases that a similar discretion vested in other Courts of Criminal Appeal in Australia and by the Court of Criminal Appeal in England has been exercised in the same way. See The Queen v Brown [1963] SASR 190 and the other cases which are collected in the text of Carter's Criminal Law, 5th ed, at p612.'

This approach has been consistently applied by this Court. It is now well settled that where there has been lengthy delay the Court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: R v Perry [1970] 2 NSWLR 501; and the authorities collected in Brown (1985) 18 A Crim R 257 at 263. See, for example, Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1988; Napier v The Queen, unreported; CCA SCt of WA; Library No 920517; 2 September 1992; Taylor v The Queen, unreported; CCA SCt of WA; Library No 940389; 2 May 1994."

5 Also on 20 October 2006, the appellant filed two affidavits in support of his application for extension of time. One was sworn by him; the other was that of his wife, LR. The Appellant's Case was filed on 15 November 2006. That sets out one ground of appeal, as follows:

"1. Appeal against Conviction on Counts 1 and 2 on the Indictment.

2. The Appellant relies on the new evidence which tends to contradict the evidence of the Complainants, and casts doubt upon the reliability thereof in their assertions that they had no communication between themselves for the period September 2002 through to December 2002 -

(a) Affidavit of [LHP] sworn 19th October 2006, and,

(b) Affidavit of [BPR] sworn 10th October 2006."

6 I note the appeal against conviction relates only to counts 1 and 2. The remaining seven convictions are not challenged.

7 The sole ground purports to rely on "the new evidence" - but there is no application for leave to adduce additional evidence on the appeal pursuant to s 40(1)(a), (b), (c), (d) or (e) of the Criminal Appeals Act. Strictly, that in itself would be sufficient to dispose of the application for extension of time, but I shall treat counsel's submissions as an oral application for this purpose only. I make it clear that such an indulgence ought not to be anticipated in future cases.

8 To understand the ground of appeal, it is necessary to briefly explain the prosecution case, the evidence at trial and what is now sought to be advanced by the appellant.

9 The appellant's wife had been jointly charged with him in respect to two of the offences (counts 8 and 9).

10 The charges against the appellant and of which he was convicted were, in short form, that:

On a date unknown between 16 May 2000 and 15 May 2001 he sexually penetrated his de facto child K, a girl under the age of 16 years, by engaging in cunnilingus (s 329(2) and (9)(a) of the Code);

On the same occasion he sexually penetrated R, a child under the age of 13, by engaging in cunnilingus;

On a date unknown between 31 August 2001 and 30 August 2002, he indecently dealt with K, by touching her breasts;

On an unknown date in January 2003 he indecently dealt with F, a child between the ages of 13 and 16 years, by squeezing her breast (s 321(4) of the Code);

On another date unknown in January 2003 the appellant and his wife indecently dealt with K by removing her clothing and exposing her vagina;

On another date unknown between 1 and 31 January 2003 the appellant and his wife indecently dealt with F, by placing his hand on her vagina;

On the same date and in the same place he indecently dealt with K by touching her vagina with his hand.

11 The jury returned verdicts of not guilty in respect of the appellant's wife on counts 8 and 9.

12 The prosecution case included a deal of evidence of uncharged sexual acts by the appellant which was led to show the relationship between him and the complainants.

13 K was 16 years old at the time of trial. She had lived with her mother and the appellant for as long as she could remember. She called him "Dad". The appellant and his wife also had three small children of their own relationship.

14 When K was in year 4 at school, the family moved to Perth from a country town in Western Australia, and K started at a primary school in the area. When she was in year 6 she met and became friends with R, who was in the same year. R was being raised by her grandmother. That year, K had her 11th birthday. K and R spent a lot of time together. R used to stay overnight at K's home often. They were so close, R regarded the appellant and his wife as being "like her parents".

15 The appellant and his wife used to talk about sex a lot in front of, and with the girls. There were conversations about sexual intercourse and oral sex. R recalled the appellant telling her what a clitoris is and how a man performs oral sex. At first K and R were very shy about these things, although K used to ask questions about what it was they were talking about. The two girls once found pornographic magazines in the bedroom of the appellant and his wife. He walked in while they were looking at them and told them it was "okay". Later, he brought a box of vibrators into K's room and showed them to the girls. At that time they were in year 6 or 7 at primary school.

16 The whole family would shower together on occasions. K could recall the appellant showering with her and using soap to wash her breasts when she was 12, 13 or 14.

17 Counts 1 and 2 concerned events which occurred when the girls were in year 7 (the year they turned 12). The girls described the incident differently, although they both said he performed cunnilingus on them in his bedroom.

18 In her evidence, K was unable to say how or why she or the respondent came to be in the appellant's bedroom, or how she came to be lying on his bed with her legs apart. All she was able to say was that the appellant licked her vagina and that she then went out of the room leaving R there.

19 R, on the other hand, said the three of them were playing Monopoly. LR was not home. R said the appellant and K went to the appellant's bedroom and she followed. First the appellant lay on the bed and then K did so. The appellant got up, removed K's knickers and licked her vagina while R watched. R had the impression K was uncomfortable but that she did not mind what was happening. K then told R to lie on the bed and said it would be alright. She did so, and removed her knickers. The appellant then did the same thing to her while K watched.

20 That essentially was the extent of the evidence on counts 1 and 2.

21 K recalled that also around that time, the appellant showed her pornographic images, including images of people having sex with other people and with animals.

22 She also said the appellant used to touch her breasts often. Many occasions were in the shower, such as described above. It also happened when K and the appellant were sitting at their computer. R recalled watching television one night while the appellant had his arm draped around K and his hand cupping her breast. R thought that was "gross" but K did not seem to mind.

23 K first started masturbating when she was 12. She recalled the appellant walking into her bedroom while she was touching herself under a blanket. She was extremely embarrassed but he told her "don't stop" or "keep going" or words to that effect.

24 At one time (she thought it was when she was in year 8) the appellant gave K a vibrator, which she would use on occasion by holding against herself, but not inserting it into her vagina (this fact was of some evidentiary significance to the State case in respect of count 4, which charged attempted penile penetration of the vagina). Other times she found vibrators in her room and she assumed he had put them there. The appellant gave her two weighted balls connected by a string, which actually belonged to LR and are used for pelvic muscle control. K said she did not use them.

25 All of this evidence was led by the State to show what it alleged was a "grooming" process whereby the appellant was encouraging K to be sexually knowledgeable and willing and accepting of his sexual conduct with her.

26 When K was in year 9 at school, the family moved to a different suburb and she went to a different high school ("the senior high school") to her friend R. They lost touch and at trial said they had not been in contact for some years.

27 The remaining counts on the indictment concern offences alleged to have been committed at the new house.

28 Count 3 was an offence in which the appellant put his hand up K's top clothing and fondled her breast.

29 Although K lost touch with R when she went to the senior high school, she made a new close friend, F. She was the complainant on count 5, 7 and 9. F lived with her mother and siblings. There was no father figure in the household. F spent a lot of time at K's house. Like R before her, she became close to the family, even to the extent of referring to LR and the appellant as "Mum" and "Dad".

30 F described an (uncharged) incident in which she saw the appellant walk up behind K, put his arms around her, put his hand underneath her breasts and bounce them up and down. He told F "she likes it". She spoke of another occasion on which the appellant squeezed K's breasts while he was sitting at the computer.

31 There were significant differences in the accounts given by K and F about counts 5 and 8. F said the events giving rise to count 5 occurred immediately after those giving rise to count 8; K recalled both incidents, but described them as separate incidents, with that in count 5 occurring first. The State took the position at trial that K was mixing two incidents and her evidence in that regard was confused.

32 F stayed with K and the family for almost the whole of the Christmas holidays of 2002/2003. She arrived around Christmas or New Year and stayed until a few days before school started again in early February.

33 One time during that stay, F was watching television with the appellant. K was in the kitchen, where she could be seen by them through the partition or room divider. F recalled the appellant saying to K "show us your tits" and seeing K pulling her top up and "flashing" her breasts at them. The appellant then made some comment about F's breasts being smaller and he leaned over and grabbed one of them through her nightdress. That was the subject of count 7.

34 Count 8 arose out of an incident which occurred when F returned to the computer room after brushing her teeth. LR had been using the computer. When F returned, K was on the floor. The State case was that LR was holding K down and the appellant was pulling her jeans and underwear off, exposing her genitals, so that F "could see everything". LR was acquitted on this count.

35 On K's account, the incident ended there, but F's evidence was that immediately thereafter, K said "Do it to [F]" and that the appellant and K chased her into a different room where the appellant took off her top and bra while K tried to remove her jeans. That was the subject of count 5 of which the appellant was acquitted.

36 Count 9 concerned the last specific incident which occurred during F's long stay at the beginning of 2003. She was sitting on the appellant's lap at the computer. She had her nightdress on. She was wearing knickers. K was sitting next to them and LR had her back angled to K. F had her legs apart and on either side of the appellant's legs and her nightdress was riding up, as it tended to do. The appellant put his finger on her vagina on the outside of her knickers and commented "You've got a little wet patch". She was very embarrassed by this, told him to leave her alone and left the room.

37 Counts 10 and 11 arose out of the same incident, which occurred at the kitchen dinner table where the whole family was present. F was not staying there at the time. The State case was that K got up from the table and the appellant grabbed a handful of icecream, pushed his hand down the back of her jeans under her knickers and slid his finger down low between her buttocks. That was count 10 (of which the appellant was acquitted). K got away and went to the sink. When she returned to the table, the appellant grabbed her and pulled her onto his lap backwards so that she was leaning back against him. He then took some more icecream, slid his hand down the front of her jeans and rubbed the icecream onto the outer lips of her vagina. (The appellant was convicted on this count).

38 K told no-one else of the foregoing incidents while she was living with the appellant and the other members of the family. The household regime was strict; she had little freedom and on occasion was hit with a belt. She was scared of the appellant. Apart from that, while she was there she thought some of the sexual behaviour at least, was good fun.

39 Sometime after 21 March 2003, K was picked up one Friday night by her godmother D. As a result of K's answers to her questioning, D never returned K to the appellant's house. K lived there after with her. In her changed living environment, K's perception and understanding of what had been happening changed.

40 The police were notified and K made her complaints on 26 March 2003.

41 The appellant was interviewed by police that day and made certain admissions, essentially of inappropriate touching and of buying K a vibrator, but denied the allegations of oral sex and attempted sexual intercourse and that there was any sexual intent on his part.

42 The evidence of the child complainants was taken by closed circuit television and pre-recorded on video before Groves DCJ between 16 and 18 June 2004, and was replayed at the trial in April 2005.

43 In her evidence-in-chief, as to lack of communication or contact with R, K said (t/s 23):

"Are you still friends with [R]?--- I haven't spoken to her in a long time.

When you say a long time, how long is that?--- About four to five years."

"When did you last have contact with [R]?---Approximately four to five years ago.

When you left, I think, [-] senior high school?---Yes.

And you went to [-]?---Yes.

Did [R] stay at [-]?---As far as I know she did, yes. I haven't been in contact with her since. We lost contact.

Have you not spoken to her on the phone?---No.

On the Internet, on the computer?---No."

45 In her evidence-in-chief, R's evidence about her friendship with K was (t/s 228 - 229):

"Did you and [K] become good friends?'---Yes. ...

Did you used to go over to [K's] house from time to time?---Yes.

How often would you say you went to [K's] house?---Nearly every day.

Nearly every day? All right. Were there times when you spent the night at [K's] house?---Yes.

Once you got to know her how often would you say you did that?---Nearly every night."

46 As to lack of contact or communication with K, her evidence-in-chief was (t/s 230 - 231):

"Okay. [R], how long would you say it has been since you have seen [K]?---About two years.

Okay. What year of school were you in, would you say, when you last saw her?---Year 8. ...

Once you and [K] were at different schools did you stay in touch for a while?---No.

Not at all? Okay. So have you seen her since she left your school?---Yes.

Can you tell us how many times you have seen her?---Once.

Where was that?---At a school sports event.

Okay. Did that involve your school?---Yes.

Did it involve her school too?---Yes. ...

Okay. Do you happen to recall what year it was?---I think it was Year 9."

"Okay. [R], you and [K] never saw each other, you told us, after [K] left [-]?---Except for that time at the sports carnival.

At the sports carnival; and did you speak about things with [K] at the sports carnival?---No.

Did you discuss this incident?---No.

Are you sure about that?---Yes.

Has [K] ever contacted you either by phone or by email?---No."

48 Counsel for the appellant also refers to the following portion of the evidence-in-chief of Detective Sergeant Brown at the trial in April 2006 (t/s 355):

"Can I ask finally, in respect of [R] had [K] either at the time of that video, or at some later stage - did she provide you with any contact details for [R]; address or phone number or anything of that sort?---In reviewing the file yes, there were some notes made of an address given.

By [K]?---By [K], yes."

49 Counsel contends this is further evidence of the close relationship between K and R in that K provides Detective Sergeant Brown with R's address in her video interview with police on 26 March 2003. The question and answer are, however, obviously ambiguous as to when that occurred, and indeed, as to what was provided. The Detective Sergeant refers only to an address, but nothing is said about whether that was a then current address, a past address or even a correct address.

50 In his affidavit, the appellant deposes relevantly as follows.

51 At trial the appellant was represented by Mr E C de Vries. The appellant was shocked with his conviction and traumatised and overwhelmed with his immediate incarceration pending sentence on 12 May 2005. Immediately upon being convicted he raised with Mr de Vries his intention to appeal against conviction, but at that stage his lawyer seemed "rather negative" and told him there were no grounds for appeal. Subsequently, following his sentencing, the appellant had a further opportunity to discuss his appeal against conviction with his lawyer and then also sentence, and his lawyer expressed to him that he was somewhat "surprised" that he had not lodged an appeal against conviction. The appellant reminded his lawyer that the latter had previously advised him that he felt there were no grounds for appeal. After receiving his lengthy term of imprisonment, the appellant took a considerable period to settle into the custodial system. He had continuing discussions with his family members about his intention to lodge appeals against conviction and sentence but was not sure how to go about it and how much it would cost and, in any event, he would have had to find another lawyer.

52 He deposes that "after some number of months" he and his wife started to talk about the details of the allegations and specifically the evidence on oath given by the complainants K and R in which they denied they had any contact between themselves. He deposes that his wife reminded him of a piece of paper they had found when shifting house in November 2004. He says he recalls his wife finding and showing him a piece of paper with a handwritten note on it which appeared to be in the handwriting of his stepdaughter K, with the word [R -] (the same name, but a different spelling, of the second complainant's name) and a telephone number underneath it. They discussed the evidence and the fact that it was not raised in cross-examination of K or R.

53 The appellant deposes it was evident to him there was communication between them as indicated by the handwritten note, a copy of which is annexed to his affidavit. He states that he requested his wife make inquiries with Telstra to obtain a statement of call details for their family telephone service, the number of which he sets out. He says those inquiries revealed there were four calls made between September and October 2002 from the family telephone number, to which K had complete access, to the telephone number on the note. He says he did not make those calls, nor did he have any reason to do so. He says he believes that K telephoned R from the family telephone on those four occasions, which is inconsistent with her evidence on oath.

54 He further deposes this "new evidence" was not available to his lawyer at trial and only became relevant after K and R gave their evidence.

55 He says that during this time following his conviction and sentence, his family was also raising funds to mount the appeals. At the beginning of 2006, he contacted the Legal Aid Commission, but legal aid was declined. However, he obtained from the Commission a copy of the court transcript of his trial and sentencing. He deposes that "after a few months" of considering the transcript and discussing matters with family members, he again made contact with Legal Aid, inquiring in relation to his appeals. As a result, he was referred to Mr Sklarz whom he contacted in July 2006. He had a conference with Mr Sklarz on 31 July that year and in August he was advised to proceed with his appeal on the basis of the "new evidence". He instructed Mr Sklarz to prepare the documentation and to obtain the necessary forensic evidence to ascertain that the handwriting on the note was in fact that of K. A report from a handwriting expert was obtained on 23 August 2006. He received advice from Mr Sklarz on 8 September 2006 in relation to his appeal against sentence.

56 In her affidavit, LR relevantly deposes as follows.

57 She and the appellant moved house in November 2004. At that time K and their other children were no longer living with them. During the move, she found a piece of paper with a handwritten note on it which she recognised as that of K. The word [R -] was written on it, together with a telephone number (given). At the time she found the paper, she did not attribute any importance to it. However, when she heard K and R during the trial denying they had contact or communication with each other, she "referred back" to it.

58 She made inquiries with Telstra and obtained from them her husband's telephone number records for the period September to, and including, December 2002.

59 She deposes that she believes that K wrote the name and contact telephone number "leading up to the time when she made the complaint to the police". The attached Telstra telephone records show calls to the number on the note from the appellant's phone on 27 September and 17 October (two calls) and 18 October 2002.

60 LR deposes that although she recognised the handwriting as that of K, she arranged for an independent forensic examination to be made of the handwriting by comparison with samples known to be those of K. She provided those to Mr John Horton of John Horton and Associates, a Forensic Consultant and Document Examiner. A copy of his report dated 23 August 2006 is annexed to her affidavit. He concluded that the writing on the note and on the samples was all by the same person.

61 LR deposes that this information is in contradiction of K's denial on oath that she made contact and communication with R and is a material and significant issue which was unavailable to be pursued in cross-examination or in support of the appellant's defence at trial.

62 In her summing up to the jury, the trial Judge adverted to the evidence of R and K that they had not been in contact since they moved to different schools. At t/s 412 - 413 she said:

"There's also been mention of concoction of evidence, both when it comes to cross-examination and to a lesser extent in the comments made from the bar table. In relation to counts 1 and 2 with [R] and [K] and counts 5 and 9 in relation to [K] and [F], the state [sic] says that you can rely on the evidence from each of the girls in relation to the allegations and that there's corroboration at least in terms of opportunity and what's occurring at that time.

In relation to count 1 and count 6, there's corroboration of the actual offence itself on the state [sic] case; that is, evidence that supports what the girl who is being the alleged victim says about the particular offence. Clearly it's been suggested that just because another girl has given evidence to support the girl who is the alleged victim, doesn't mean - it's been suggested that that evidence shouldn't be relied upon because there's been an opportunity for there to be concoction, put their heads together, to look for a reason to tell similar stories.

In a criminal trial the state [sic] doesn't have to prove a motive for offences so the state [sic] doesn't have to prove why a person would commit a criminal offence and similarly the state [sic] doesn't have to prove beyond reasonable doubt that there hasn't been concoction. What you need to do is look at the evidence that's been given and asses [sic] the reliability, credibility and accuracy of it. Is there any evidence that's been led that would cause you to consider that there has been concoction.

So weigh up that evidence to determine whether there has been concoction and whether that would affect the weight that you would give on the evidence - to the evidence that you have seen and heard. In relation to [K] and [R] both of them on oath denied that they had had contact to discuss the allegations since they were basically at school together.

There had been no contact since [K] had left [-] in year 8 except on one occasion at a school carnival and there's no evidence at all to support that there has been contact between the two since or contact - of any discussions between the two at all. Both denied that on oath. [R] hadn't spoke to the police when [the appellant] provided his video record of interview, at that time she had not spoken and there's absolutely no suggestion on any of the evidence that [R] and [F] knew each other in any way."

63 The appellant's submission is that the "new evidence" tends to contradict the evidence of K and R that there was no telephone communication between them between September and December 2002 and tends to infer there was concoction between them. It is submitted that defence counsel at trial was unable to cross-examine them on this evidence as it was not known to him and that, had he been able to contradict their evidence on this point, that could have raised sufficient doubt in the minds of the jury. The submission is that as a consequence, the verdicts on counts 1 and 2 are unsafe and raise a doubt that the appellant should not have been convicted.

64 The chronological sequence of events is significant here.

65 The appellant and his wife were charged about March 2003.

66 K and R gave their evidence, which was recorded, in June 2004. The appellant and his wife were represented by counsel on that occasion. The complainants were cross-examined about their contact or communication at that time.

67 The note was found by the appellant's wife in November 2004. She showed it to him then. It was on an A4 sheet of paper on which there were also other numbers and another name jotted, as well as doodlings. Given the earlier cross-examination of the two complainants on their contact prior to June 2004, if the name and number were thought to be of relevance or importance to the appellant's trial, that would have been apparent then. Indeed, they at least imply that was so, although LR says she did not attribute any importance to it until she heard the evidence of the complainants at trial. But during all that time she was a co-accused. She and the appellant would have been present at the pre-recording of the girls' evidence some five months before she found the note. Presumably each had discussions about the case with their legal advisers.

69 This was certainly not "fresh" evidence; it was "new" evidence, which not only could have been discovered by the appellant with reasonable diligence prior to trial, but was in fact actually known to him and his wife.

70 The distinction between "fresh" and "new" evidence was explained in Mickelberg v The Queen (2004) 29 WAR 13 at [411] - [416]. A trial will not be unfair because the accused of his own volition did not call evidence which was available to him at the time (Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 per Barwick CJ). In relation even to an application to adduce "fresh" evidence, a court of appeal has some responsibility to examine its probative value to ascertain whether the evidence is cogent, plausible and relevant (Craig v The King [1933] HCA 41; (1933) 49 CLR 429, 439). In undertaking that exercise, it is necessary for the court to keep in mind the possibility that a jury, acting reasonably, might come to a different view than the court on the credibility of the witness or the cogency of the fresh evidence (Pileggi v The Queen [2001] WASCA 260 at [49] per Parker J (Malcolm CJ and Wallace J agreeing); White v The Queen [2006] WASCA 62 per Wheeler JA at [146] - [147]).

71 The explanation given for the delay in initiating the appeals against conviction and sentence are wholly unsatisfactory.

72 The appellant advances no satisfactory explanation for not raising the note with his counsel prior to trial.

73 Furthermore, the material sought to be adduced lacks cogency. While the name written on the paper is the same as that of R, it is a different spelling. More importantly, there is no evidence that the number on the note is (or was) actually that of the complainant R or her family. Without that, the evidence would be irrelevant.

74 Further, the proposition which it is said this evidence would support, is that in these telephone conversations these two complainants concocted false allegations of cunnilingus, the subject of counts 1 and 2. But even assuming the calls were from K to R in September and October 2002, that was at least 18 months after the events and some five months or so before K made her complaint to police at the instigation of her godmother.

75 The evidence sought to be led is irrelevant and in any event lacks any degree of cogency. The explanation for not raising it at trial is not satisfactory. The appellant has not shown that there would have been a prospect that the jury, acting reasonably, may have acquitted if this evidence had been before them or it had been put to these two complainants in cross-examination.

76 No proper basis for leave to adduce this additional evidence on the appeal has been shown and that application cannot succeed. That being so, the sole ground of appeal, which relies upon it, has no reasonable prospect of success (Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [50] - [61]).

77 In these circumstances, I would refuse the application for extension of time to appeal against conviction.

Application for leave to appeal against sentence

"1. The learned sentencing judge imposed individual sentences in respect to the following, which, in all the circumstances, are manifestly excessive.

(a) Count 1: Sexual penetration by way of cunnilingus - 5 years, reduced to 3 years 4 months imprisonment, cumulative.

(b) Count 2: Sexual penetration by way cunnilingus - 5 years, reduced to 3 years 4 months imprisonment, cumulative.

(c) Count 7: Indecent dealing by squeezing breast - 2 years 6 months, reduced to 1 year 8 months, cumulative.

2. The learned sentencing judge erred in not properly applying the totality principle of sentencing in imposing a head sentence of 8 years 4 months, which is not proportionate to the gravity of the offences committed and is so severe as to achieve a crushing result."

79 The appellant's explanation for the delay of some 17 months in the filing of his appeal notice against sentence is even less satisfactory than in respect of his conviction appeal. His sentence appeal is not suggested to have involved the obtaining of further evidence. There is no reason he could not have filed his appeal notice within time. In the circumstances, time should not be extended unless the appellant can demonstrate there is such a likely prospect of success on appeal that to refuse the extension would result in a miscarriage of justice.

80 Ground 1 complains that the individual sentences in respect of three counts only, are manifestly excessive. Ground 2 is a complaint that the aggregate sentence offends the principle of totality, firstly, because the sentence is disproportionate to the appellant's overall offending and, secondly, because it is "crushing".

81 In respect of ground 1, it is submitted that counts 1 and 2 of sexual penetration, were by way of cunnilingus with a minimal amount of penetration and there was an absence of any threatening or violent behaviour and they therefore should have attracted sentences lower on the scale of seriousness, in each instance. As to count 7, it is submitted the indecent dealing was by way of squeezing a breast, which was on the lower side of offending in seriousness for that type of offence. It is said that mitigating factors by way of personal antecedents were that the appellant had no previous criminal record, was 30 years of age at the relevant time, had an excellent employment record and was of good character.

82 A claim that a sentence is manifestly excessive is a claim that although no specific error can be identified, the exercise of the sentencing discretion must have miscarried because the sentence imposed is so far outside the range of sentences which could reasonably be imposed for the particular offence (see House v The King [1936] HCA 40; (1936) 55 CLR 499). It is trite law that an appellate court may not substitute its own opinion for that of a sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from that in which the sentencing Judge did so (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672).

83 To demonstrate that a particular sentence falls outside a range, it will ordinarily be necessary for an appellant to show what the usual range of sentences is for that type of offence. That will require reference to a sufficient number of cases to reveal a range. Reference to one case, or only a few selected cases, will not be capable of indicating a "range". Here the appellant refers only to a single case (described as "comparable"). That is Stephenson v The Queen [2001] WASCA 98.

84 There the offender was convicted of three counts of cunnilingus with a child (his de facto's daughter then 5 years old) and one count of indecent dealing with a child (his de facto son then 8 years old). The offender received 7 years 5 months' imprisonment in the aggregate, comprised of three concurrent sentences of six years and one cumulative sentence of 1 year 5 months' imprisonment. On appeal, the opportunistic nature of the offending, rather than a pattern of grooming, the minimal amount of penetration measured against the breach of trust and absence of remorse, resulted in the sentence on the sexual penetration counts being reduced to 4 years' imprisonment. The count of indecent dealing was also viewed as opportunistic and was reduced to 1 year to be served cumulatively. The total sentence was thus reduced from 7 years 5 months to 5 years' imprisonment.

85 If, as the appellant asserts, that case is "comparable" with the present, it can be seen that the individual sentences here seem to be very much in line with it. In that case the sentence imposed for each offence of sexual penetration (cunnilingus) was 4 years. Here it was (in pre-transitional terms) equivalent to 5 years. There the offending was opportunistic and there was no pattern of grooming. Here the offending was part of sustained conduct and grooming was a very significant feature.

86 No further submission was made nor authorities cited in support of the claim that the sentence in respect of count 7 was manifestly excessive.

87 The appellant has not demonstrated that ground 1 has a reasonable prospect of succeeding on appeal. Leave to appeal must be refused in respect of it.

89 The totality principle requires a Judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved (Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 307 - 308; R v Crofts [1998] QCA 60; [1999] 1 Qd R 386). That is, the sentencing Judge must review the aggregate sentence to ensure that it is just and appropriate for the offender's behaviour as a whole. An aggregate sentence may be inappropriately long, even if it cannot be described as "crushing" (Jarvis v The Queen (1993) 20 WAR 201 per Anderson J at 216; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [22]). The word "crushing" in this context connotes the destruction of any reasonable expectation of useful life after release (Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 per Anderson J at 12; Martino v The State of Western Australia [2006] WASCA 78 per McLure J at [15]; Hapke v The State of Western Australia [2006] WASCA 188 per Roberts-Smith JA at [93] - [98]).

90 The aggregate sentence here was 8 years 4 months' imprisonment. The criminal conduct covered by it consisted of sexual offences committed against three different child complainants (one of which was the appellant's stepdaughter) between May 2000 and the end of January 2003. The offences in respect of the stepdaughter were a gross breach of trust. The element of grooming was marked. The offences included two of sexual penetration of the complainant's vagina by the appellant's tongue. The appellant ceased offending only when the girls were removed from his presence. The sentencing Judge found that each complainant had suffered significantly.

91 It is apparent from the way her Honour structured the sentences that, having determined upon the appropriate sentence for each individual offence, she stepped back to take that "last look" to ensure the end result was proportionate to the appellant's overall offending, as required by Postiglione. The question is whether, in the end, sufficient adjustment was made.

92 Her Honour had already expressly adverted to the statutory obligation to impose individual sentences which were one-third less than the sentences which would have been imposed before the amendments to the Sentencing Act on 31 August 2003. In his submissions, Mr Sklarz refers to the following passage from the judgment of Wheeler JA in Miller v The State of Western Australia [2006] WASCA 163 at [22]:

"It would be preferable in my view to apply the one-third reduction at the very end of the sentencing process after the questions of totality have been considered, so that the 'last look' at the sentence is done against the background of all the Judge's experience gained prior to the transitional provisions; or alternatively, in order to check again whether the total sentence is appropriate, some notional reconversion to equate the sentence with that which would have prevailed prior to the transitional provisions may be desirable."

93 What her Honour said there, and the proper approach to be taken, was explained in Hapke v The State of Western Australia (supra). Steytler P said (at [3] - [5]):

"3 At the time of imposing fixed terms it is, of course, necessary for the sentencing Judge to have regard for the provisions of cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ('transitional provisions') which provides that:

'If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.'

The expression 'old provisions' is defined in cl 1(1) of the transitional provisions, in effect, to mean the former sentencing regime prior to the abolition of the remission of one-third that had formerly been provided for by s 29 of the Prisons Act 1981 (WA) (the relevant legislative history appears from the judgment of Pullin JA in Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585).

4 Consequently, by the time at which the sentencing Judge comes to consider the issue of totality, each of the fixed terms imposed will ordinarily have been reduced by one-third, resulting in a total sentence which would, of course, be one-third less than that which would have been arrived at were it not for the operation of the transitional provisions. However, it remains important that, when considering totality, a sentencing judge does not lose sight of the fact that, notwithstanding that each of the sentences making up the total has been reduced by one-third, the total so arrived at should not be more than two-thirds of the total sentence that would have been regarded as a just and appropriate measure for the total criminality involved were it not for the operation of the transitional provisions (see, in this respect, Miller v The State of Western Australia [2006] WASCA 163). The obvious intention of the transitional provisions was, of course, that the abolition of the remissions formerly provided for by s 29 of the Prisons Act should not result in sentenced prisoners spending more time in gaol than would have been the case if those remissions had not been abolished: see the extracts from the second reading speech in respect of the Sentencing Legislation Amendment and Repeal Bill 2003 and the explanatory notes to that Bill, quoted in Worthington at [68] - [71].

5 Of course, this does not mean that, on each occasion upon which a totality issue arises in the course of sentencing, a sentencing judge must make it plain that this obvious consideration has not been overlooked or that there must always be some expressed notional reconversion of the sentence (to that which would have been imposed under the old provisions) at the time of considering totality. Nor does it mean that the statutory reduction in each of the fixed terms imposed should only ever be made at the time of considering totality (and I do not understand Miller to have suggested otherwise). All it means is that this consideration should be kept in mind by the sentencing Judge when considering the issue of totality. "

94 On the same point, I said (at [105] - [111]):

"105 ... the issue is whether the question whether the total effective period of imprisonment imposed upon the offender ('the aggregate term') infringes the principle of totality is to be tested by having regard to the equivalent pre-amendment sentence, or solely by the aggregation of a fixed term actually imposed after 31 August 2003 (already reduced by the one-third the sentencing amendments requires).

106 A sentencing Judge must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality (Mill v The Queen (1988) 166 CLR 58; Pearce v The Queen (supra) per McHugh, Hayne and Callinan JJ (Gummow J agreeing on this) at [45])). It was emphasised in Pearce (ibid, at [47]) that it is important to apply proper principle in fixing the appropriate sentence for each offence. There are two particular reasons for that. The first is that otherwise, orders made for cumulation or concurrence would be made on an imperfect foundation. The second is that failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. It follows from this that adjustments to achieve an aggregate sentence commensurate with the offender's overall criminality in respect of multiple offences ought to be made by orders for cumulation or concurrency, rather than adjustment of sentences for individual offences.

107 That individual sentences are each reduced by one-third does not obviate the problem. That is because the period the offender will actually have to serve in prison will not depend upon the length of the individual sentences, but upon the extent to which they are concurrent or cumulative.

108 It cannot have been the intention of Parliament to require reduction of sentences by one-third to allow for statutory structural changes to the legislative regime, with the object of ensuring that offenders do not spend more time in prison after the amendments than they would have previously, yet permit courts to impose total effective periods of imprisonment longer (and probably significantly longer) than those overall periods would have been prior to 31 August 2003.

109 Miller v The State of Western Australia [2006] WASCA 163 is an example. On any single offence of the various kinds there dealt with, the sentencing Judge was required to impose a term one-third less than she would have imposed for that offence prior to 31 August 2003. The offender would therefore have had to serve one-third less, if sentenced only for that offence. That is the stated intent of the legislation. The one-third rule is not to be applied to the aggregate sentence. But prior to 31 August 2003, the notion of totality would have to have been applied to the aggregate sentence (in Miller, 161/2 years). Because of the changes to the sentencing regime, an offender who now receives an actual sentence of 11 years is liable to serve exactly the same time in prison (parole aside) as if he or she had been sentenced to 161/2 years prior to 31 August 2003. Consistency and fairness in sentencing necessarily require that comparison to be made now when a sentencing Judge (or this Court) comes to consider the application of the totality principle. I do not see Miller as saying anything different. The assessment of the possible sentencing outcomes having been made in that way, the appropriate aggregate outcome is properly arrived at by orders of cumulation or concurrency.

110 With respect, the fallacy in the approach which requires the pre-August 2003 position to be entirely disregarded, is that it assumes a sentencing process must occur in specific or definite stages at which relevant decisions must be made and cannot thereafter be revisited. That is not the process described by the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048. In Wong, Gaudron, Gummow and Hayne JJ explained the 'instinctive synthesis' approach (ibid at [75]) as meaning no more than taking account of all relevant factors to arrive at a single result which takes due account of them all. The sentencer is called on to reach a single sentence which balances many different and conflicting features. This approach was confirmed by the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian, at [37] - [39].

111 Accordingly, I do not see a difficulty with the mechanics of the process. It is clear beyond doubt that the one-third reduction must be applied to the individual sentences for the respective offences, and that must be done before orders for cumulation or concurrency can be made. But none of that precludes a sentencing Judge considering the overall effect of possible individual sentences and various combinations of cumulation or concurrency, before fixing the particular sentences and their appropriate aggregation. Indeed, it seems to me that is implicit in the sentencing approach described by the High Court in Wong and Markarian and the 'last look' required by the totality principle."

95 A present aggregate sentence of 8 years 4 months is equivalent to one of 12 years 6 months imposed prior to 31 August 2003. The appellant has not referred to any authorities to show that is disproportionate to the appellant's offending, however it does seem to me the contention does have a real prospect of success on appeal and I would give leave to appeal in respect of it. Of course the appellant would need to refer to the relevant authorities before the Court of Appeal.

96 So far as the second limb is concerned, that the aggregate sentence was "crushing", I am not persuaded there is a reasonable prospect that would succeed. The appellant was 34 years old when sentenced. Assuming he was to serve the whole of his aggregate sentence (that is that he would not be released on parole, although eligible), he would be about 43 years old on his release.

97 Given the prospect of success on appeal on this ground, I consider the extension of time should be granted.

98 I would accordingly grant the extension of time in respect of the appeal against sentence, refuse leave to appeal on ground 1, but grant leave to appeal on ground 2, amended by deletion of the words "... and is so severe as to achieve a crushing result".

• Application for leave to appeal against sentence