Evidence Act 1906, s 36BC

Application for leave to appeal against sentence refused

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

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

R v Podirsky (1989) 43 A Crim R 404

Trescuri v The Queen [1999] WASCA 172

Woods v The Queen (1994) 14 WAR 341

1 JUDGMENT OF THE COURT: On 10 August 2000 the Court expressed its unanimous opinion that the appeal against conviction and the application for leave to appeal against sentence should be dismissed. These are the reasons upon which that opinion is based.

2 On 26 November 1999 in the District Court at Bunbury, at the end of a trial before his Honour Judge Groves which had begun the day before, a jury found the appellant guilty on all 11 counts in an indictment. The counts related to sexual offences by the appellant against the complainant, his daughter, while she was between the ages of 6 and 13 years. Six of the counts were for unlawfully and indecently assaulting her, three for sexually penetrating her without her consent and two for indecently dealing with her. Later that day his Honour sentenced the appellant to an effective total of 10 years and 6 months imprisonment with eligibility for parole.

3 The appeal against conviction was based on one ground expressed in the amended notice of appeal in this way:

"The learned judge erred in law in declining to grant leave to elicit or adduce evidence of the sexual experiences of the complainant.

Particulars

The learned trial judge should have granted leave for such evidence to be elicited or adduced given the following:

1. The complainant before the trial had stated that when she was six years old she had sexual experiences with her step-brother, ...

'Right v Wrong' Counselling

2. As a result of these experiences the complainant, shortly afterwards, underwent formal counselling as to what was 'right' and 'wrong' in terms of sexual conduct. However, the Complainant claimed that she did not become aware of this understanding until after all the offending had ended.

3. This claim is inconsistent with the above counselling. However, the Appellant was refused leave by the learned trial Judge from eliciting or adducing evidence of this counselling.

Appellant's Voluntary Action

4. Further, it was at the Appellant's suggestion to the complainant's mother that their daughter participated in the above counselling.

5. The voluntary action of the Appellant suggesting this type of counselling is consistent with his claim of innocence, and inconsistent with the Complainant's claim that the Appellant began to sexually abuse her from age six years. However, the Appellant was refused leave by the learned trial judge from eliciting or adducing evidence of this voluntary action."

4 The complainant was born on 11 October 1980. On 2 November 1998 she made a written statement complaining of the conduct which later was made the subject of the indictment presented against the appellant. On 19 January 1999 she made a further written statement in which she said that when she was 6 years old their step-brother had sexually assaulted her and her younger sister Amy on several occasions. She went on to state that on one such occasion her mother saw the incident, told the appellant what she had seen and then took the two girls to "some sort of counselling place" conducted, it seems, by the Department of Social Services in Busselton. In the same statement the complainant described an occasion, when she was about 11 years old, when she and her uncle Bob, her mother's brother, touched each other in a sexual way. Her uncle died when she was 13 years old.

5 On 25 November 1999, after the appellant was arraigned but before the prosecutor opened the case to the jury, counsel for the appellant sought leave to cross-examine the complainant, her sister Amy and their mother as to the matters mentioned in the complainant's second written statement. In doing so, counsel relied upon s 36BC of the Evidence Act 1906, the provisions of which read as follows:

"(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave of the court has first been obtained on application made in the absence of the jury (if any).

(2) The court shall not grant leave under subsection (1) unless satisfied that -

(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and

(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complaint might suffer as a result of its admission."

Counsel submitted that the evidence which he intended to elicit fulfilled each of the requirements of subsection (2). As to relevance, he argued that the jury would be entitled to infer from the evidence in question that the complainant was confused as to the person or persons who had abused her sexually and that she had wrongly blamed the appellant for what her step-brother or her uncle had done. He argued also that the evidence of abuse by other people was relevant as an explanation of the level of sexual knowledge which the complainant had at the time.

6 The trial Judge declined to grant the leave sought, expressing the view that the possibility of confusion on the part of the appellant because of the incidents with her step-brother and uncle was speculative only. His Honour emphasised also that what had happened between the complainant and persons other than the appellant was not relevant to the charges against the appellant and did not "go to the heart of the issues" which arose from those charges. Having said he was not satisfied that either of the conditions expressed in s 36BC(2) had been established his Honour ruled against the application.

7 In our opinion his Honour clearly was right in ruling as he did on the information which was put before him. In addition to the reasons which he expressed it might be as well to observe that possession by the complainant of some level of sexual knowledge or even of some particular type of sexual predisposition would not have excused the behaviour alleged against the appellant.

8 No evidence was put before the trial Judge, or before this Court, tending to show that the complainant was counselled as to what was "right" and "wrong" in terms of sexual conduct before all of the alleged offending had ended. On the hearing of the appeal counsel for the appellant was quite unable to demonstrate that his Honour was told that evidence was sought to be led in order to show that the complainant had an understanding of such matters when she was 6 years old. The evidence to which his Honour's attention was directed was evidence of the complainant's sexual experiences with other persons and was not evidence either as to whether she had been counselled before the offending ended or as to the nature of such counselling.

9 In those circumstances, it cannot be argued on behalf of the appellant that there was any error in the exercise of discretion by his Honour in relation to that matter.

10 It is true that counsel told his Honour also that he sought to adduce evidence that it was the appellant who arranged for the girls to be counselled after the incident with their step-brother. He argued, in effect, that the jury might well accept that such voluntary action would be inconsistent with the appellant's being sexually abusive towards his daughter. In his extempore reasons his Honour did not refer expressly to that argument. However, as submitted by counsel for the respondent, it was implicit in his Honour's ruling that he did not regard such evidence as having substantial relevance to the facts in issue. This Court takes the same view.

11 At the trial the complainant testified, in effect, that between 1986 and 1993 the appellant had engaged in frequent acts of serious sexual misconduct with her, sometimes involving Amy. The latter, who was 16 years old at the time of the trial, also gave evidence in some detail as to one such occasion. She testified that there had been other incidents but that she could not recall any of them exactly. The complainant's mother testified that the appellant's misconduct towards his daughters came to light in or about August 1998, after she had read something in Amy's diary which caused her to investigate the matter. After that she left the appellant and the complainant then informed the police of what had happened.

12 The appellant also gave evidence at the trial. He testified that his relationship with his daughters was "perfectly normal" and that he and the complainant had "a really fantastic father-daughter relationship". He acknowledged that he bathed and showered with the girls - in the complainant's case until she was about 12 years old - and that he rubbed the private areas of their bodies as part of washing them, but he denied touching either of the girls in a sexual manner and denied engaging in any of the sexual misconduct alleged against him.

13 As happens so often in relation to charges of sexual abuse within a family, save for Amy's evidence the prosecution case depended almost entirely upon the oral testimony of the complainant. Nevertheless, that testimony provided clear evidence to support each of the verdicts, and there was nothing in the papers before us to suggest that the trial miscarried in any way.

Application for leave to appeal against sentence

14 The grounds upon which the appellant relied in relation to the sentence were expressed as follows:

"The total effective sentence was manifestly excessive in all the circumstances.

Particulars

The learned sentencing judge imposed a sentence which did not adequately acknowledge that:

1. The offending did not involve express acts of coercion or forceful behaviour.

2. The offending did not involve any extreme acts of perversion or deviance.

3. On no occasion was there penile penetration of the complainant's vagina.

4. The offending counts were more isolated incidents rather than representative of a prolonged course of persistent conduct.

5. The Appellant desisted from further offending on his own volition."

On the appeal counsel for the appellant simply argued that in light of the acts particularised the sentence was "far outside the range of penalties commonly imposed for offending of this type".

15 At the time of sentence the appellant was a 40-year-old builder/handyman. The references which were tendered showed that he was well regarded by his employer and by the community in which he lived. However, he did not display any remorse for his offending.

16 In arriving at the overall sentence his Honour first allocated what he regarded as an appropriate penalty for each offence and then considered the questions of cumulation and concurrence in applying the totality principle. In respect of each count the term of imprisonment which he imposed was well below the maximum penalty which applied at the time (for sexual penetration 20 years, for indecent dealing 10 years, and for the unlawful and indecent assault 6 years). His Honour next dealt with the 11 counts in five groups, each group relating to a particular occasion within the appellant's course of conduct. Finally, he directed that the terms in each group take effect concurrently with each other but cumulatively upon those in each of the other groups. It was an appropriate way of structuring the sentence.

17 In Woods v The Queen (1994) 14 WAR 341 at 354, Anderson J said:

"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of eight years or more in total, often, but not always, are cases where more than one child has been victimised or where there has been multiple offending over an extended period and the offending has included sexual penetration in one form or another, or where some degree of violence, cruelty or aggression or threats have been employed. In some cases, such as the Podirsky cases, all of those features are involved and these will generally attract very heavy sentences. In other cases not all of the features are present."

The offences in this case involved masturbation of the appellant by the complainant, digital penetration of the complainant by the appellant, cunnilingus and fellatio. They were committed over a long period and commenced when the complainant was very young. Not all of the features mentioned by Anderson J in Woods' case were present here but, as his Honour remarked when sentencing the appellant, the nature of the offences required that the sentence have "a very strong element of deterrence" both personal and general. His Honour went on to say:

"More so than anything else insofar as consideration of penalty is concerned is the breach of trust as between father and daughter. As a father you had a responsibility to care for, love, protect your daughter, the complainant in this case and other children. Sometimes as trying as that may be for a parent, the courts and the community don't condone the breach of familial trust which goes with the role of being a parent to a child in the community and that more than anything else warrants a reasonably severe sentence of imprisonment."

This Court agrees with the sentiments expressed by his Honour. The sentence imposed was "reasonably severe" but, in our view, it was not excessive.

18 For those reasons the Court decided that the appeal against conviction and the application for leave to appeal against sentence should be dismissed.