Court of Appeal (WA)|2000-06-30|Before: Mr P, Wallwork J, Kennedy J, Pidgeon J

"Ca" v The Queen [2000] WASCA 176 (30 June 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : "CA" -v- THE QUEEN [2000] WASCA 176

Criminal law and procedure - Sexual offences - Evidence - Claim that medical witness gave "radically different" evidence from that contained in her deposition - Claim that her evidence as to published medical research inadmissible - Complaints as to various factual matters, each of which had been drawn to the attention of the jury by the trial Judge - Verdict not unsafe and unsatisfactory

Criminal law and procedure - Sentencing - Sexual offences - One count of carnal knowledge of 5-year-old daughter - Three counts of indecent dealing - Effective sentence of 9 years' imprisonment not interfered with - Individual sentences restructured

Application for leave to appeal against convictions dismissed

To extent to which appeal lay as of right, appeal against convictions dismissed

Appeal against sentences allowed to the extent of restructuring individual sentences

Jeffrey v The Queen [1991] TASSC 114; [1991] Tas R 336

Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996

K v The Queen, unreported; CCA SCt of WA; Library No 980276; 22 May 1998

R v Lucas, unreported; CCA SCt of WA; Library No 960365; 11 July 1996

Reid v Kerr (1974) 9 SASR 367

Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995

Trescuri v The Queen [1999] WASCA 172

Woods v The Queen (1994) 14 WAR 341

1 KENNEDY J: The essential facts are set out in the reasons to be published by Wallwork J. Generally for the reasons which his Honour gives, I agree that the applicant's application for leave to appeal against his convictions should be dismissed. To the extent to which his appeal lay as of right, I would dismiss his appeal. I also agree that the applicant's application for leave to appeal against his sentences should be allowed and the sentences restructured as proposed by Wallwork J. I desire, however, to make some brief observations of my own.

2 The major complaint of the applicant related to his conviction for carnal knowledge of his daughter. It concerned the evidence of the Crown witness, Dr S K Anderton, a medical practitioner, which, it was claimed, differed radically from the contents of the written report which formed part of her deposition, there being no prior indication that this would occur. In my opinion, there was no significant departure by Dr Anderton from her report, and there was no justification for the applicant's claim that he was taken by surprise.

"The presence of an incomplete cleft or notch in the hymen is not diagnostic of vaginal penetration, but its presence makes vaginal penetration more likely than if it were not present. The thickening of the hymenal rim has similar significance."

The expression "diagnostic" was clearly used in the sense of "determining" the cause. Dr Anderton in her evidence merely amplified her conclusion in her report and substantiated her opinion by reference to a study, published in the Journal of Paediatrics, which surveyed statistics derived from a study on 300 girls after they had passed through puberty. This study indicated that there was a marked statistical difference in the number and location of clefts in their hymens and that of 200 girls who were not sexually active the presence of clefts in the position where they were found in the complainant's case occurred in only 3 per cent of the cases, whereas the figure was 88 per cent in the case of the sexually active group.

4 The claim before us that Dr Anderton's evidence is based on hearsay is misconceived. The hearsay rule has no application in this context. The position was well expressed in "Wigmore on Evidence", 3rd ed, vol 2, 784 - 785 para 665(b):

"The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow-scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men.

On the one hand, a mere layman, who comes to court and alleges a fact which he has learned only by reading a medical or mathematical book, cannot be heard. But, on the other hand, to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards.

Yet it is not easy to express in useable form that element of professional competency which distinguishes the latter case from the former. In general, the considerations which define the latter are (a) a professional experience, giving the witness a knowledge of the trustworthy authorities and the proper source of information, (b) an extent of personal observation in the general subject, enabling him to estimate the general plausibility, or probability of soundness, of the views expressed, and (c) the impossibility of obtaining information on the particular technical detail except through reported data in part or entirely. The true solution must be to trust the discretion of the trial judge, exercised in the light of the nature of the subject and the witness' equipments. The decisions show in general a liberal attitude in receiving technical testimony based on professional reading."

See Borowski v Quayle [1966] VicRp 54; [1966] VR 382 per Gowans J at 385 - 387 and see also the Evidence Act 1906, s 72.

5 The further claims by the applicant that Dr Anderton's evidence that she did not deal with children undermined her own report and caught the defence by surprise are equally without substance. She had in fact been asked by the applicant's counsel in cross-examination whether, if a 4 or 5-year-old girl were to have intercourse with a full grown man, there would be no sign of any internal injury. Her response was:

"I don't examine children but in my reading, the study that I have here from Richard Geist in the American Journal, says that they have looked at the frequency of injury and in vaginal injuries, almost 60 per cent of children have a completely normal vaginal examination. It says here, 'Overall, 10 to 15 per cent of all children brought for sexual child abuse examinations will have some evidence of non-anogenital trauma', so that's, you know, head injury or something else."

6 It was then put to Dr Anderton that this would be the opinion of the particular doctor. She replied, "Yes, he's doing a review". She later confirmed that she did not have experience in examining children. The complainant at the time of the examination was, however, 14 years of age. In all the circumstances, the claim that Dr Anderton does not "deal with" children is of little moment. It was competent for her, as a medical practitioner practising at the Sexual Assault Centre, to refer to published works of authority, to which, it is to be noted, there was no objection taken at the trial.

7 It was argued on behalf of the applicant at the trial that sexual intercourse between a normal adult and a child of the age of the complainant at the time would inevitably have caused injury, but that there was no evidence from the complainant or from her mother of any injury in circumstances where intercourse was alleged to have occurred frequently and to have caused pain. That was, however, a bare assertion by counsel, unsupported by any expert opinion. It also ignores Dr Anderton's evidence that injury may have been caused to the complainant, insofar as she suggested that the cleft on the complainant's hymen, and the thickening of the rim of the hymen, could have been due to injury.

8 Various particulars were given in support of the applicant's contention that the verdict was unsafe and unsatisfactory. They were that the complainant had told the court that she had never seen the accused's penis despite frequent intercourse, that the complainant had told the court that she had only told the Crown Prosecutor two days before the trial that the applicant had made her put her mouth over his penis, that the complainant had told "a sex education person" that "it had never happened to her", that there was a lock on the door to the shower in the house but that the complainant had never used it while she was allegedly frightened of her father, that at a family wedding subsequent to her making her complaints to the police the complainant had displayed affection to her father, that the fact of the applicant's showing the complainant more affection than his son was as consistent with his innocence as it was with his guilt, that the alleged downcast eyes of the accused when confronted by his son with what the complainant had told him could not have been seen by him because under cross-examination he had admitted he could not look at the accused, and finally that no significance could be attached to the complainant's taking friends with her when she went to visit her father.

9 Some of these particulars clearly misstate the evidence. With respect to the lock on the door to the shower, her evidence was that she normally did not have showers with the door unlocked, except when her mother was home. It appears that she had not locked the door on the occasion when she claimed the applicant had got into the shower with her. She had heard what sounded to her to have been her mother's car driving away from the house after she had gone into the bathroom. Nor was it an accurate reflection of the evidence to say that the applicant's son admitted he could not look at the accused. His evidence was that it was really hard for him to look at his father and to talk to him, but he also said that at the relevant time he was sitting on the ground and that he looked up occasionally and that his father then had his arms folded and was looking down at the ground. Similar evidence was given by him in his cross-examination.

10 The particulars in relation to the contention that the verdicts were unsafe and unsatisfactory, in my opinion, lack substance. They were no doubt points which could properly be made by counsel for the applicant in his address to the jury, and, to the extent that it was necessary, they were the subject of appropriate comment by the learned trial Judge in his summing up. In this connection, applying the tests laid down in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, at 493 - 494, I am satisfied that the material complained of did not render the verdicts unsafe and unsatisfactory. The application for leave to appeal against the applicant's conviction should therefore be dismissed. To the extent to which an appeal lay as of right, the appeal should be dismissed.

11 In relation to sentencing, it is to be noted that the applicant did in fact have two earlier convictions for offences of a sexual nature. The first related to an aggravated assault in 1979, when he followed a young girl in a bikini along a bush track and put his arm around her waist. For this offence, he was fined the sum of $100 in the Midland Court of Petty Sessions. The second related to an aggravated indecent assault on an 11-year-old neighbour in 1991, in respect of which the applicant was fined the sum of $1,500 in the District Court.

12 I am in agreement with Wallwork J that, although the overall sentence of 9 years' imprisonment is appropriate in this case, the sentence on count 1, the count of carnal knowledge, is, in all the circumstances, too severe and beyond the range of a sound discretionary judgment. In my opinion, it should be reduced to 7 years' imprisonment. With respect, in determining the sentences which he did, it appears that the learned trial Judge failed to apply the principles laid down by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610, at 623 - 624, where their Honours said:

"To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing Judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."

13 The four offences of which the applicant was convicted occurred over a period of some six years. Subject to the application of the totality principle, this would normally require the cumulation of the sentences to some extent. The fact that it was not done in this case, in practical terms, means that no penalty has been imposed for the remaining three counts. It is possible, therefore, that his Honour fixed 9 years as the overall sentence for the applicant's offending. Be this as it may, having reduced the sentence on count 1, the remaining sentences should be restructured pursuant to s 693(1) of the Criminal Code. I agree with Wallwork J that it would be appropriate to reduce the sentence on the second count to one of 2 years' imprisonment, but to direct that it be ordered to be served cumulatively upon the sentence imposed in respect of the first count. The remaining sentences should stand as they are, as should the backdating of the sentence on the first count to 11 November 1999. The orders for eligibility for parole should also stand.

14 It is unnecessary, in my view, to embark upon a discussion in this case of representative or sample counts or the taking of other offences into account, a subject which is dealt with in Fox & Freiberg "Sentencing State and Federal Law in Victoria", 2nd ed (1999) at 2.335 - 2.340. The learned authors there point to the various approaches which have been adopted in different jurisdictions in order to deal with representative counts - see, for example, R v Cooksley [1982] Qd R 405 and R v Reiner (1974) 8 SASR 102. In this State, there is no statutory procedure such as is to be found in s 16BA of the Crimes Act 1914 (Cth). It is enough for the present purposes to acknowledge that there was no basis in this case for taking into account offences in addition to those charged, except to the extent which Wallwork J has indicated.

15 PIDGEON J: I agree with the reasons of Wallwork J in respect of the application for leave to appeal against conviction and for those reasons I would refuse leave.

16 In respect of the appeal against sentence I am of the view that the term of 9 years for the totality of the applicant's conduct was a sentence well within range, but I agree with Wallwork J that the sentence ought to have been structured by imposing a term of 6 years for the first offence and a cumulative sentence of 3 years for the offence referred to by Wallwork J with concurrent terms on the balance.

17 The applicant at a trial in 1999 was found guilty of offences which commenced in 1988 when his daughter was 5 years old and continued until 1994, when she was 11 years of age. In these circumstances the better course would have been to have imposed the appropriate sentence in respect of each count rather than impose the sentence for the totality of the conduct on the first count (Pearce v The Queen (1998) 194 CLR 610). However, the possibility of error which arose in Pearce's case would not have arisen on the facts of this case as there would have been no overlapping.

18 I do not consider it is appropriate, on the facts of this case, to say that the offences of which the applicant was convicted were representative of a long course of conduct. It would have been better to say that the acts were not isolated. If the evidence of the complainant shows and if a defendant in a record of interview clearly admits numerous offences, then the question can arise where the Crown, instead of overloading an indictment, can put in representative charges. The position would still be that the offender could be punished only for those offences to which he pleads in the context that it is freely admitted they are not isolated offences. In the present case, although the complainant said that there were other occasions, further charges were not brought because she could not identify them with any precision, but she clearly remembered the first. I do not consider in the present case it led to any error of sentencing as I consider that his Honour, although he used an incorrect term, was doing no more than saying that the acts were not isolated.

19 I am not of the view that the learned sentencing Judge treated the plea of not guilty as aggravation. His remarks in this area are set out in the reasons of Wallwork J. His Honour said there was very little of a mitigating nature and he then referred to putting the daughter through a trial. I would read that as his intending to say that there is no mitigation on that account. It could be open on a literal reading to read it the other way, but it would be inconceivable that a Judge as experienced as his Honour would ever take the view that it was aggravation. For these reasons I consider it appropriate to read them in the context of absence of mitigation and I do not consider his Honour increased any sentence on this account.

20 In this case I consider that the actual sentences should have been as set out by Wallwork J.

21 WALLWORK J: These are reasons for judgment after an application for leave to appeal against both conviction and sentence.

Application for leave to appeal against conviction

22 On 11 November 1999 the applicant was convicted after the trial of one count of carnal knowledge of his daughter, one count of unlawfully indecently dealing with a child under the age of 14 years by making her touch his penis, a count of indecently dealing with a child under the age of 13 years by pulling down her underpants and a further count of indecently dealing with a child under the age of 13 years by touching her breast.

23 On 30 November 1999 the applicant was sentenced to 9 years' imprisonment for the carnal knowledge offence, 4 years' imprisonment for making the child touch his penis, 18 months' imprisonment for pulling down the child's underpants and 1 year's imprisonment for touching the child's breast. All the sentences were ordered to be served concurrently and backdated to 11 November 1999. The applicant was made eligible for parole.

24 It was first argued against conviction that a doctor who had been called by the Crown had improved upon her proposed evidence to a considerable extent and had thereby "wrong-footed" the applicant at the outset of the case. It was contended that the doctor's evidence had gone much further than that which had appeared in a report which had been supplied to the defence as part of the Crown brief. That there had been no prior indication that the doctor's evidence would be more detailed at the trial.

25 The conclusion in the medical report supplied prior to trial had been that the presence of an incomplete cleft or notch in the hymen is not diagnostic of vaginal penetration but its presence makes vaginal penetration more likely than if it were not present. Further, that the thickening of the hymenal rim has a similar significance.

26 When the doctor gave evidence, she said that she had found a notch or incomplete cleft at the 5 o'clock position of the hymen; also that the rim of the hymen was different to the rest of the hymen at 11 o'clock. When asked "Is it common to see notches like this in this position?" the doctor said:

"No it is not. There have been studies done throughout the world of examination of the hymen and in looking at notches it is found that there are two general statements that can be made. They are much more common in people who are sexually active and they are much more common in some positions than in other positions ... But between the positions of 3 o'clock down to 6 o'clock and up to 9 o'clock they are quite uncommon. One study that I have with me which is by Eamans Woods Allread & Grace, which is from the Journal of Paediatrics, did a study on 300 girls after they had passed through puberty. Two hundred of these girls had not been sexually active. One hundred had been sexually active. In the 200 subjects who were not sexually active they found that the presence of clefts from the 4 o'clock to the 8 o'clock position really only occurred in 3 per cent of not sexually active, but in the sexually active people, you know, 88 per cent of the clefts that they found were in that lower position, so there is a marked difference statistically in the number of clefts that occur and where they occur. So a cleft in this position in a girl who is claiming to have had sexual abuse is a significant finding."

27 The learned trial Judge asked some questions in clarification of the doctor's evidence. In the course of answering those questions the doctor said:

"Now, these particular clefts that we are talking about have been seen in newborn babies. They have been seen in young girls, so they do appear to occur independent of sexual activity or other activity, although that is an issue that we could discuss scientifically for years, but clefts have been found in children where there appears to be no obvious sexual activity. So the concept of a complete hymen is a very difficult concept to come to terms with but we know that these physiological, what we think are physiological clefts, or commonly occurring clefts without sexual activity, appear to appear most commonly at the 3 o'clock and 9 o'clock position or higher up. They very, very rarely occur in this lower half of the hymen. That appears to be an area that doesn't get these clefts. Many people have done studies over long periods of time. That appears to be an area that stays as it should stay, so if we find clefts in the lower half of the vagina, we take note of those as being a very significant finding ... This was at the 5 o'clock position so it is between the 3 o'clock and the 9 o'clock position. ... It is significant because they are believed to be healed transections or tears, so there has been a tear from the free edge of the hymen right through to the base and its partially healed up again ... So we believe that they probably are healed tears. So that's the first thing. That's what we think they are. The second thing is that it is a matter of statistics how commonly these occur in normal people who say they haven't had sex. Well, they occur in 3 per cent. How commonly do you get notches in this lower area in people who are sexually active? Probably 88 per cent. So we can only talk about the probability of what things should be where they are."

28 That was some of the evidence which was complained of by the applicant in this case. It was a considerable expansion of what had appeared in the medical report which had been supplied prior to the trial.

29 It was submitted that the defence had had no notice of this expanded evidence and that the quoted statistics were far more compelling than had been indicated by the context of the report. The expanded evidence pointed towards the complainant having been sexually penetrated and the subject of the alleged crimes. It was submitted that the doctor had projected the position in a far more compelling way than had been done in the report and that it had "tainted the rest of the trial." It was said that the defence had been taken by surprise and that it had not had notice of what the doctor was going to say.

30 It was further contended that the evidence which had been given was hearsay evidence. That the expert testimony had been drawn from authors of other works. It was also contended that when counsel for the applicant had attempted to elicit from the doctor whether there would have been physical damage to the complainant, the doctor had responded that she did not examine children.

31 In the grounds of appeal it is said that the evidence of the doctor had been unfair to the applicant because "the Crown witness displayed partiality to the Crown case by embellishing her evidence to potentially incriminate the applicant." It was contended that the learned trial Judge had failed to exercise his discretion to rectify the imbalance of the doctor's evidence and had not redirected the jury when asked to by the defence.

32 In the course of his summing up the learned trial Judge said that the doctor had testified as to the "two percentages which are obviously significant if you accept them." His Honour told the jury that the doctor had been giving evidence of what she had read in scientific literature and research that had been done elsewhere, and that she was entitled to give that evidence because in being an expert, she had obviously had to study the science. He told the jury that it was her evidence as to the general body of science which was relevant to the issues in the proceedings and that the jury had to bear in mind that the doctor was relying upon research by others in giving the evidence which she had given. His Honour pointed out that scientists can also be wrong and gave an example of that. He said it was a matter for the jury as the doctor's expertise had not been challenged and she had obviously been reliant to some considerable degree on international studies in giving her evidence. He told the jury that they must bear that in mind because the research evidence had not been tested. His Honour referred to the fact that the learned doctor had said that she did not examine children but that a study from Richard Geist in the "American Journal" had said that "they have looked at the frequency of injury and in vaginal injuries almost 60 per cent of children have a completely normal vaginal examination. It says here, 'overall 10 to 15 per cent of all children brought for sexual abuse examinations will have some evidence of non-anogenital trauma.' " The doctor had repeated that she did not have experience of examining children. She had also said that she could not tell from her experience whether sexual intercourse by a full-grown man would cause internal injury.

33 The learned Judge said that the fairest way he could put the expert evidence on that subject was that there was no expert evidence one way or the other as to whether or not it was possible for a fully adult man to penetrate the vagina of a 5-year-old "and that is an issue that you are just going to have to decide on the rest of the evidence in terms of whether or not you believe [the complainant] when she says it did happen or whether or not you are not satisfied beyond reasonable doubt that that did indeed happen."

34 After the learned trial Judge had finished his address to the jury, defence counsel raised the fact that there had been no prior indication to the defence that statistics like 3 per cent and 88 per cent were to be used and that the doctor had, in effect, painted a different picture from the report which had been previously supplied to the defence. It was also suggested that the doctor had undermined her own expertise when she had said that she had conducted an examination and that "no internal injury was detected". It was said that when the doctor qualified that by saying she did not examine children, "the rug" had been pulled out from underneath the defence because it had been relying on her evidence that she is an expert and no internal injury had been detected. It was put to the learned trial Judge that the doctor had also referred to the reports of others, which evidence had not been made available to the defence beforehand. It was submitted that to a certain degree the defence had felt ambushed by the additional information which had been supplied relying on the expert evidence.

35 The learned trial Judge said that the doctor had elaborated on why the findings were significant by reference to research by other experts. His Honour said that the evidence had been received without objection at the time and that he had dealt with it fairly in terms of pointing out that the research on which the doctor's opinion had been based could not be tested and had not been tested in the trial, and that doctors sometimes turn out to be wrong, or researchers sometimes turn out to be wrong. His Honour said he thought he had given a balanced direction as to that area. He also referred to the fact that the doctor had, under cross-examination, said that there was international research which suggested that the lack of internal injury was not of any significance. The learned Judge said that he had pointed out to the jury that the doctor had based her opinion in that respect, not on her own experience, but on the experience of others and that he had directed the jury that as to that area, the expert evidence, they should deal with it on the basis that there had been no evidence one way or the other as to whether or not the lack of internal injury was significant.

36 Counsel for the defence asked the trial Judge to direct the jury that they should confine themselves to the examination and the conclusion which had been reached by the doctor. It was said that the examination had revealed no internal injury and that the doctor's conclusion had been that the presence of an incomplete cleft or notch was more likely to be present had intercourse occurred. Counsel asked the trial Judge to tell the jury to disregard part of the doctor's evidence.

37 The learned Judge told counsel that in his view the way in which he had addressed the jury had been fair and the jury could not disregard part of the doctor's evidence in the way which had been suggested. His Honour said that, in his opinion, he had properly alerted the jury to the way in which it should assess the evidence from the doctor which was based upon research to which the doctor had not personally been a part. His Honour said he would not redirect the jury.

38 In my opinion, there was no error on the part of the learned trial Judge in this regard. A doctor is entitled to rely on medical research to assist in explaining medical evidence to a jury - "Cross on Evidence" (5th Australian Edition) 809-810.

39 It was not suggested at the hearing of this appeal that the evidence of the doctor had been wrong in any respect. There was, in my opinion, no miscarriage of justice arising from the relevant evidence.

40 The next ground of appeal argued was that the convictions were unsafe because of a number of difficulties arising from the evidence. It was said that there had been no evidence of injury from the complainant or her mother, despite the fact that the complainant had said that there had been full intercourse and that it had happened regularly. It was contended that there had been evidence that the complainant had said that she had never seen the applicant's penis, despite frequent intercourse. Further, that the complainant had only told the Crown prosecutor two days before trial that the applicant had caused her to put his penis into her mouth. That had never been in the Crown brief. The complainant had said that she did not know why she had remembered that only two days before trial. She had told a person who had been giving sex education to her that that had never happened to her. It was also said that the complainant had had a lock on the shower door but had never used it while allegedly being frightened of her father. Also, that at a wedding on 14 March 1998 she had displayed affection towards her father. That this had been subsequent to her having made a complaint to the police one month beforehand.

41 There were other matters complained of in the applicant's submissions such as the fact that it had been said that the applicant was more affectionate to his daughter than he was to his son. Also that the complainant's brother had been unable to assist the court with any observations as to whether or not the complainant had been suffering at the hands of the applicant. It was said that something had been made of the complainant taking friends with her when she went to visit her father, whereas that was not indicative of anything.

42 The applicant's counsel submitted that at the end of the day the evidence at the trial had been such as to show that the jury should not have been convinced beyond a reasonable doubt of the applicant's guilt.

43 In answer to those submissions counsel for the respondent said that the jury was the body entrusted with determining the guilt or innocence of an accused person and the jury had had the benefit of having seen and heard the witnesses - M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ. It was only where the evidence contained discrepancies or inadequacies, or was tainted, or otherwise lacked probative force in such a way as to lead the Court of Appeal to conclude that there was a significant possibility that an innocent person had been convicted, that the Court should set aside a verdict. In this case the jury had been aware of the alleged defects in the evidence.

44 In my opinion the matters raised at the hearing by counsel for the applicant and the matters raised in the grounds of appeal were all matters which were dealt with at the trial or which could have been dealt with at the trial. The grounds of appeal and the submissions made on behalf of the applicant, do not reveal any error in the course of the trial or a miscarriage of justice.

45 I would refuse leave to appeal against the convictions.

Application for leave to appeal against sentence

46 With respect to the application for leave to appeal against sentence it was submitted that in all the circumstances the sentence was manifestly excessive in view of the 9 year sentence which had been imposed in respect of count 1. It was contended that the penalties imposed were outside the range of penalties commonly imposed in these cases. Further, the applicant contended that the learned sentencing Judge had erred in stating that the terms of imprisonment would have to be substantial because the applicant had shown no remorse at all and had put his daughter through the ordeal of a trial.

47 The learned trial Judge had said in his sentencing remarks:

"It is inevitable that you must receive terms of imprisonment today and there is, of course, very little of a mitigating nature and you have shown no remorse at all for what you have done and you have put your daughter through the ordeal of a trial and for those reasons the terms of imprisonment are going to have to be substantial."

48 Counsel for the respondent conceded that there had been error in the last part of the above statement - Siganto v The Queen (1998) 73 ALJR 162. However, it was submitted that the sentence of 9 years' imprisonment for the offence of carnal knowledge of the applicant's daughter was appropriate in the circumstances of the case due, amongst other things, to the fact that the complainant had been 5-years-old when the first offence was committed.

49 The four offences for which the applicant was convicted occurred in 1988, 1989, 1992 and 1994.

50 When sentencing the applicant the learned trial Judge said:

"... following a trial you have been convicted of four offences of a sexual nature committed on your daughter. These offences comprise one offence of carnal knowledge and three counts of indecent dealing and are representative of a course of sexual conduct towards your daughter when she was aged between 5 years and 12 years."

51 In my view, it is an error when sentencing a person for four offences to tell him that they "are representative of course of sexual misconduct towards your daughter when she was aged between 5 years and 12 years." An offender can only be punished for the offences of which he is convicted. The only way in which other alleged offences can be regarded in the sentencing process is that if they are proved, the offender cannot claim in a case such as this, that the four offences were isolated offences - R v Cooksley [1982] Qd R 405; R v H (1980) 3 A Crim R 53; R v Poole [1999] WASCA 46; (1999) 106 A Crim R 459.

52 In my view, the sentence of 9 years' imprisonment for the first offence was too severe. This Court should therefore review the sentence and pass such other sentence as may be lawfully passed - the Criminal Code (WA), s 689(3). A Court in such a case can alter the sentences passed for the other offences which were imposed on the same occasion - s 693(1).

53 I would reduce the 9 year term of imprisonment for the first offence to one of 7 years' imprisonment and order that the sentence of 4 years' imprisonment for the offence in count 2, which was an indecent dealing offence involving the child masturbating the applicant, be reduced to a sentence of 2 years' imprisonment to be served cumulatively upon the 7 year term of imprisonment. That would result in an aggregate sentence of 9 years' imprisonment for those two offences. The other sentences would remain as they are, being 18 months and 1 year's imprisonment respectively, to be served concurrently with the first 7 year term. The order for eligibility for parole would remain.

"Ca" v The Queen [2000] WASCA 176

At a glance

Court

Decision date

Before

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Judgment (85 paragraphs)

"Ca" v The Queen [2000] WASCA 176 (30 June 2000)

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Cases Cited (6)