Criminal law - Appeal against conviction - Sexual offences against children - Longman warning - Crofts direction - Leave to appeal refused

Criminal law - Appeal against sentence - Total effective sentence of 4 years' immediate imprisonment - Parole eligibility order refused - Whether primary judge erred in declining to make a parole eligibility order - Leave to appeal refused

Sentencing Act 1995 (WA), s 89

Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161

Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427

Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

FJL v The State of Western Australia [2010] WASCA 8

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

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

Narkle v The State of Western Australia [2011] WASCA 160

SPB v The State of Western Australia [2012] WASCA 136

2 BUSS JA: The appellant has applied to this court for leave to appeal against conviction and sentence.

3 He was charged on indictment with four counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code).

4 Counts 1 and 2 related to a girl (C) and counts 3 and 4 to a boy (W). They were siblings.

5 The appellant pleaded not guilty on all counts. He was tried in the District Court before Sweeney DCJ and a jury. The trial occupied the period from 5 to 7 September 2011. Judgments of conviction were entered on counts 1, 3 and 4. The appellant was acquitted on count 2.

(a) Count 1: on a date unknown between 1 March 2009 and 15 July 2010, the appellant indecently dealt with C by touching her vagina.

(b) Count 3: on a date unknown between 26 January 2010 and 15 July 2010, the appellant indecently dealt with W by touching his penis.

(c) Count 4: on another date unknown between 26 January 2010 and 15 July 2010, the appellant indecently dealt with W by touching his penis.

7 On 25 October 2011, the trial judge imposed individual sentences of immediate imprisonment, as follows:

8 Her Honour ordered that the sentence for count 3 be served cumulatively upon the sentence for count 1, and that the sentence for count 4 be served concurrently with the sentence for count 1. The total effective sentence was therefore 4 years' imprisonment. The sentence was

backdated to 20 October 2010. Her Honour declined to make a parole eligibility order.

9 The appellant did not give or adduce evidence at the trial (ts 279).

10 The defence case was that the alleged offending had not occurred and that the evidence of C and W should not be accepted.

The trial judge's findings of fact as to the circumstances of the offending

11 The trial judge made findings of fact, as to the circumstances of the offending, in her sentencing remarks.

12 The appellant was a close friend of the parents of C and W. He and his then partner met the family while on holiday at a caravan park in Perth.

13 Count 1 occurred at night in C's home. The appellant was staying in the home for a short period because he did not have his own accommodation. The appellant was lying on a mattress in the lounge room. C and W, and their younger sister, were present. The appellant was playing with and cuddling C on the mattress. He put his hand down her pyjama pants and rubbed her vagina. At the time of the offending C was aged about 8.

14 Count 3 occurred at the appellant's home. C and W, together with their parents and younger sister, had visited his home several times. On the occasion in question, the appellant placed W on or against his lap. The appellant put his hand down W's pants and fondled his penis. The appellant asked W whether he 'liked it'. W said he did not like it. The appellant then gave W a cuddle or spoke reassuringly. W was aged about 5 at the time of the offending.

15 Count 4 occurred in a toilet block at a park. The appellant went to the park with W, W's mother and some of her other children. The appellant and W visited the toilet block together. At the toilet block the appellant put his hand down W's pants and fondled his penis. The appellant again asked W whether he 'liked it', and W said 'no'. At the time of the offending W was aged about 5.

Appeal against conviction: grounds of appeal

16 Originally, the appellant relied on three grounds in his appeal against conviction.

17 However, at the hearing of the application for leave to appeal, counsel for the appellant abandoned ground 1 (appeal ts 17).

18 Ground 2 alleges that the trial judge failed to give 'an adequate Longman direction'.

19 Ground 3 alleges that her Honour failed to give the jury 'an adequate Crofts direction'.

Appeal against conviction: ground 2: the trial judge's directions

20 The trial judge discussed with the prosecutor and defence counsel (who was not counsel for the appellant in the appeal), in the absence of the jury, various directions she proposed to give the jury in her summing up.

21 The following exchange occurred between her Honour and defence counsel:

SWEENEY DCJ: Mr Rafferty, are you seeking a Longman direction?

RAFFERTY, MR: I thought about that.

SWEENEY DCJ: It's a bit tricky because we don't know what the delay is, do we?

RAFFERTY, MR: No and we never could. Because with those children there was no point in me cross-examining them because they couldn't do it in chief.

SWEENEY DCJ: No, no. But it's not a case where you would expect forensic evidence.

...

RAFFERTY, MR: At least so in relation to [W].

SWEENEY DCJ: We'll put it this way, that opportunity to the extent to which it exists is lost within about 72 hours anyway.

RAFFERTY, MR: Three days, yes, that's right.

SWEENEY DCJ: And you wouldn't expect a Longman direction in those circumstances to cover that - - -

RAFFERTY, MR: No, no, I would certainly - no.

SWEENEY DCJ: But it's not a case where one would see that there's been any loss [in] seizing bedclothes and the like.

RAFFERTY, MR: Well, there's no suggestion of ejaculation or anything like that, so no.

...

SWEENEY DCJ: Well, there's issues of whether alibi might be explored, but that - - -

RAFFERTY, MR: Well, that is the - that was the one issue I was thinking of because the absence of any certainty does deprive him of that aspect. 'No, I wasn't there that day' and you have heard evidence there were 10 days where he was away for 10 and a half - or 10 days spells that appear to be contemporaneous with these incidents.

So in that context, your Honour, yes, I would ask that you give a Longman direction. I don't anticipate that your Honour give the 'it would be dangerous to convict' line and I'm not going to ask you to say that, but obviously we'll - - -

SWEENEY DCJ: So perhaps a tailored - - -

RAFFERTY, MR: Yes.

SWEENEY DCJ: I mean I'm planning to direct them anyway that they should look at each child's evidence very carefully.

RAFFERTY, MR: Yes.

SWEENEY DCJ: Because of certain factors, all of which you've mentioned in your closing address.

...

SWEENEY DCJ: So perhaps - perhaps a sort of a tailored Longman warning. In terms of not so much a dangerous to convict warning but pointing out that there may be disadvantages because neither child was able to say when it occurred and perhaps that meant that things couldn't be explored.

RAFFERTY, MR: Yes, your Honour, that - I would ask your Honour give that direction (ts 286 - 289).

22 The trial judge instructed the jury, in her summing up, to the effect that:

(a) C and W were very young (ts 308). C was 9 and W was 6 at the time of the trial (ts 313, 325). They gave unsworn evidence (ts 313, 325).

(b) The appellant was an adult and a trusted family friend (ts 308).

(c) C and W were interviewed by police in July 2010 (ts 297).

(d) The jury needed to take 'extra care' in evaluating the evidence of very young witnesses because 'children may feel that if an adult is questioning, then they should please the adult by answering those questions' (ts 297).

(e) The jury would need to be satisfied beyond reasonable doubt that C was a truthful and accurate witness in relation to counts 1 and 2 and W was a truthful and accurate witness in relation to counts 3 and 4 (ts 295 - 296).

(f) When assessing the evidence of each of C and W the jury would need to consider whether the child understood the difference between what he or she recalled happened and what he or she 'perhaps [wished] had happened or [thought] ought to have happened' (ts 305).

(g) The jury would need to consider carefully whether each of C and W truly distinguished between reality, on the one hand, and imagination, on the other, 'because before you could convict the accused you'd have to be satisfied that the child's evidence is both truthful and accurate about the essential facts that constitute the offence' (ts 305).

23 Her Honour, in her summing up, gave the jury this 'tailored Longman direction':

Now, that failure to say anything immediately has another implication. Neither child, when interviewed, showed much understanding, you might think, of timeframes or when they were saying an event occurred. One cannot say on the evidence really when each alleged incident is said to have occurred except within a very broad timeframe of when the [complainants'] family knew the accused and he was staying over.

So we have no way of knowing just how long after an alleged event the child spoke about it. And importantly, that means the accused has no way of knowing just what day or week or month or what hour of the day or night he is said to have done these things.

... as I've said, the implication of the children's evidence not being able to specify any particular time or date is that the accused has no way of knowing just what day or week or month or what hour of the day or night he is said to have done these things.

If each child had spoken up earlier and said, 'This happened to me an hour ago' or it happened yesterday or it happened last week perhaps, then the accused would have known in far more detail just what timeframe was being identified. And he could perhaps have explored at least the possibility of alibi evidence to prove he could not have committed an offence at that time. He might have been able to work out whether he was in [the town where the offending occurred] at that time or whether he was away at work at that time. The parents might have been asked about what they recall of the day at a time much closer to the alleged event.

So because the children cannot specify any sort of particular timeframe, the accused has perhaps lost the opportunity to explore and perhaps bring forward matters of defence and to better test the evidence of the children.

So the delay in the children saying anything and being interviewed and we have no way of knowing what that delay was has put the accused at that disadvantage. That is another factor you should consider in assessing the credibility of each of the witnesses in this case and also in assessing the strength of the State's case overall (ts 308 - 309). (emphasis added)

24 Defence counsel, who is an experienced criminal trial lawyer, did not request her Honour to redirect the jury or give it an additional direction based on Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 (ts 338).

25 Before this court, counsel for the appellant complained about the trial judge's use of the word 'perhaps' in the context of describing opportunities the appellant may have lost.

26 The rationale for giving a Longman warning is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence.

27 As McLure P noted in FJL v The State of Western Australia [2010] WASCA 8, the forensic disadvantage is actual even if it is confined to the loss of a chance [2].

Appeal against conviction: ground 2: the Longman warning: applicable principles

28 In SPB v The State of Western Australia [2012] WASCA 136, I reviewed the circumstances in which a judge in a criminal trial is obliged to give a Longman warning to the jury, and the content of the warning. It is unnecessary to reproduce the review.

Appeal against conviction: ground 2: its merits

29 In my opinion, the trial judge's so-called 'tailored Longman direction' was adequate to ensure a fair trial and to avoid any perceptible risk of a miscarriage of justice. Ground 2 is not reasonably arguable. My reasons are as follows.

30 First, although the period of the delay between the occurrence of the alleged offences and the allegations being brought to the appellant's attention could not be ascertained precisely, count 1 (concerning C) appears to have happened (on the State's case) between March 2009 and July 2010 and counts 3 and 4 (concerning W) appear to have happened (on the State's case) between January 2010 and July 2010. C and W were interviewed by police in July 2010 and the appellant would have been informed of the allegations at about that time. The trial occurred from 5 to 7 September 2011.

31 The delay was not trivial, but it certainly did not involve extraordinary delay of the kind which occurred in Longman, Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 and Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285.

32 Secondly, the appellant did not give evidence at the trial. There was no evidence from him as to any particular forensic disadvantage he had suffered as a result of the relevant delay. In the circumstances, the existence of disadvantage was to be presumed or inferred from the lapse of time.

33 Thirdly, there was some evidence at the trial to the effect that, at or about the material time, the appellant was absent, from time to time, from the town where the alleged offending happened, for intervals of about 10 days. Defence counsel raised this point with her Honour. In the circumstances, the only prejudice reasonably to be presumed or inferred from the relevant delay was the absence of particularity as to the precise dates of the offending; the loss of the ability to have investigated and, possibly, to have obtained alibi evidence to the effect that he was not in the town when the offences allegedly occurred; a possible diminished capacity to cross-examine the complainants' parents as to their recollection of events on or about the actual dates of the alleged offending; a possible loss of an opportunity to test more searchingly the evidence of the complainants; and a possible loss of an opportunity generally to explore and perhaps bring forward matters of defence.

34 The trial judge gave directions as to the loss of a chance in relation to these matters, and these directions were adequately related or tailored to the facts and circumstances of the case.

35 Fourthly, her Honour emphasised that the relevant delay was 'another factor' the jury should consider 'in assessing the credibility of each of the witnesses in [the] case and also in assessing the strength of the State's case overall' (ts 309).

36 Fifthly, her Honour's use of the word 'perhaps' was not, in the circumstances, objectionable in that she was drawing to the jury's attention particular prejudice that the appellant may have suffered. It was not apparent from the evidence that the appellant had actually suffered particular prejudice. He did not give evidence and defence counsel did not, by his cross-examination of other witnesses, establish the actual suffering of particular prejudice. As I have mentioned, it was necessary, in the present case, to presume or infer the existence of disadvantage from the relevant delay. Also, as I have mentioned, actual disadvantage includes the loss of a chance. In the present case, the word 'perhaps' connoted the loss of a chance.

Appeal against conviction: ground 3: the trial judge's directions

37 The trial judge, in her summing up, gave the jury the following directions about the delay of C and W in making complaint:

Apart from inconsistencies within a witness's own account, you should also consider any inconsistencies between the witnesses' accounts. In other words, are the witnesses giving different accounts of one event?

If it seems to you that two witnesses are describing the one incident, are there material differences in the way they describe it? Or does one witness describe an event as occurring which another witness denies occurred?

Now, you know that has occurred in this case and obviously that's something you should consider carefully in assessing the witness's credibility. And most significantly, the credibility of the children.

In considering the case, you should also take into account that neither of the children told any adult shortly after the events they say occurred. Now, firstly in that regard, I'll tell you this, you should consider the fact that neither child said anything to anyone about what they alleged happen as part of your consideration of their credibility. Both children said they would tell on another child be that a sibling or a child in the playground, if someone did something bad to them.

But absence of complaint or delay in complaining doesn't necessarily indicate that the allegation that the offence was committed is false because there may be good reasons why a victim of an offence such as these alleged may hesitate in complaining or may refrain altogether from making a complaint about what happened.

In this case you'll want to take into account that both children are very young. That the accused was an adult and in a position of trusted family friend. And indeed, [C] said that she did tell her mother something after the first incident and her mother became very upset and wouldn't talk to her. [C] said that she said something and her mother just didn't talk after that (ts 307 - 308).

38 Her Honour then gave the jury the so-called 'tailored Longman direction' I have set out at [23] above.

39 Defence counsel did not request her Honour to redirect the jury or give it an additional direction based on Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 (ts 338).

Appeal against conviction: ground 3: the Crofts direction: applicable principles

40 In Narkle v The State of Western Australia [2011] WASCA 160, I examined the circumstances in which a direction of the kind referred to in Crofts may be required. It is unnecessary to replicate my observations in Narkle.

Appeal against conviction: ground 3: its merits

41 In my opinion, the trial judge's directions plainly brought to the jury's attention that they were permitted to use the delay of the complainants in making complaint as a factor in assessing their credibility.

42 Her Honour expressly told the jury that the relevant delay was a factor the jury should consider 'in assessing the credibility of each of the witnesses ... and also in assessing the strength of the State's case overall' (ts 309). Nothing said by her Honour precluded the jury from reasoning that, on the basis of the relevant delay, the complaints were untrue or unreliable.

43 I am satisfied that, in the circumstances, it was unnecessary for her Honour to give the jury any further or additional direction based on Crofts. No such further or additional direction was required to ensure that the appellant received a fair trial or to avoid any perceptible risk of a miscarriage of justice.

45 Neither ground 2 nor ground 3 of the appeal against conviction has a reasonable prospect of success. I would refuse leave to appeal against conviction and dismiss the appeal.

Appeal against sentence: the ground of appeal

46 Initially, the appellant relied on two grounds in his appeal against sentence.

47 However, at the hearing of the application for leave to appeal, counsel for the appellant abandoned ground 1 (appeal ts 22).

48 Ground 2 challenges, in substance, her Honour's decision to decline to make a parole eligibility order.

Appeal against sentence: the trial judge's sentencing remarks

49 The trial judge, in her sentencing remarks, referred to victim impact statements she had received from each of the complainants:

I have a victim impact statement from each of [C] and [W]. Each of them says how nice they thought you were until you touched them, and each of them expresses how upset they were to have been touched in that way, and also how upsetting they found the experience of giving evidence in court and being accused of lying by your lawyer. [C] says she was too scared to sleep by herself for a very long time afterwards, and would wear lots of clothes so that men couldn't touch her.

They've expressed themselves using a child's language appropriate to their age. But it is apparent that each of them feels quite betrayed by what you did, and felt anxious and angry as a result. And then rather than have you acknowledge that what they say was true, they've had to come to court and testify about the matter and been subjected to cross-examination (ts 373).

50 Her Honour examined the appellant's personal circumstances. He was born on 29 September 1957 and aged 54 when sentenced. He has a reasonably extensive prior criminal record. Significantly, he has a history of sex offences against children.

51 In 1982 the appellant was convicted of having evil designs. The offence was committed against a young female babysitter. It involved the making of suggestive comments. The appellant, who was then about 25, was fined $100.

52 In 1993 the appellant was convicted, after a trial, of three counts of aggravated sexual assault. He received a total effective sentence of 5 years' imprisonment. The offending related to the appellant's biological daughter. Two of the offences occurred when she was 9. One offence involved digital penetration of her vagina and the other involved cunnilingus. The third offence occurred when she was 12 and involved digital penetration of her vagina.

53 In 2000 the appellant was convicted of one count of aggravated indecent assault. In 2001 the appellant was convicted of three counts of aggravated indecent assault. He received a total effective sentence, for the 2000 and 2001 offences, of 18 months' imprisonment. All of these offences related to his then partner's 14-year-old daughter. The appellant had fondled her breasts and vagina on the outside of her clothing.

54 In 2010 the appellant was convicted of a breach of protective bail conditions. He was fined $500. It was a condition of the appellant's bail that he was not to have contact with any child. This offence related to the appellant having direct contact with an unaccompanied female child at the front of his home.

55 The trial judge noted that the appellant maintained a stance of denial in relation to his offending against C and W. The author of a pre-sentence report before her Honour noted that the appellant continued to deny his guilt in relation to the 1993, 2000 and 2001 offences.

56 As to all of his offending behaviour and, in particular, his sexual offending, the appellant asserted that he was convicted of the offences 'due to mixing with the wrong people'. He blamed the victims, their parents, the Department for Child Protection and the police.

57 As to the breach of protective bail conditions, the appellant minimised his offending by telling the author of the pre-sentence report that he had 'been set up by the Sex Offender Management Squad' and that the female child he had been speaking to was his 'dog walker'.

58 It was difficult for the author of the pre-sentence report to analyse the triggers for the appellant's offending behaviour against children because of his stance of denial. Therapeutic intervention would be difficult while he adamantly denied committing any of the offences. As a result of his stance of denial, he had not completed any sex offender treatment programmes while in custody.

59 The trial judge found that the appellant represented a risk to young children. She also found that he had no remorse or victim empathy, and no insight into his offending.

60 There was little by way of mitigation. The appellant apparently had a good employment history and he had been assisting in the care of his aged mother.

61 Her Honour gave these reasons for declining to make a parole eligibility order:

I consider the seriousness of these offences coupled with your criminal history leads to the irresistible inference that you present an ongoing risk to young children of either sex. Previous terms of imprisonment, including a substantial term of five years' imprisonment, appear to have had no lasting deterrent effect upon you. There is nothing positive pointing to granting you parole.

Although offering you parole may hold out to you the benefit of participating in the sex offenders program and hence be a positive thing, your stance of denial has been maintained for many years now. And I have no reason to think there is likely to be a shift in your attitude.

Although I understand [defence counsel's] submissions to the effect that supervision in the community best serves the long-term needs of the community, it is not a blanket proposition that I accept applies in every case irrespective of other factors. And in this case I consider there are important factors present, which I've mentioned, which tend against the weight to be attached to that submission.

Although I recognise there is generally a presumption in favour of granting parole, in the circumstances of this case I consider you should not be eligible for parole and I decline to make you eligible (ts 379).

62 Section 89 of the Sentencing Act 1995 (WA) provides, relevantly:

(1) A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.

...

(4) A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -

(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant.

63 In Moody v French [2008] WASCA 67; (2008) 36 WAR 393, this court examined the relationship between s 89(1) and s 89(4) of the Sentencing Act. Steytler P, Wheeler, McLure and Buss JJA held that the combined effect of those provisions is that a sentencing judge is required to make a parole eligibility order if none or one of the four factors identified in s 89(4) are present. If two or more of those factors are present, the sentencing judge is required, without any predisposition or bias, to take all relevant considerations into account, including the factors identified in s 89(4), in deciding whether a parole eligibility order should be made [48] - [50].

64 In the present case, each of the offences committed by the appellant against C and W was serious within the meaning of s 89(4)(a) and s 6(2) of the Sentencing Act. The maximum penalty for the offence of indecent dealing, contrary to s 320(4) of the Code, is 10 years' imprisonment. I have already recounted the facts and circumstances of the offences. The complainants were young and vulnerable.

65 Also, the appellant has a significant criminal record within s 89(4)(b). As I have mentioned, he has prior convictions for sex offences against children.

66 Further, as to s 89(4)(d), there was little by way of mitigation. Indeed, there is cause for significant concern in the appellant's continuing stance of denial, the absence of any remorse or victim empathy, and his failure to develop some insight into his criminal conduct and accept

responsibility for it. The appellant constitutes an ongoing risk to young boys and girls.

67 In these circumstances, three of the four factors identified in s 89(4) were present.

68 Plainly, it was open to the trial judge to refuse to make a parole eligibility order. It is not reasonably arguable that she erred in the exercise of her discretion in declining to make such an order. It is apparent from her sentencing remarks that her Honour, without any predisposition or bias, took all relevant considerations into account, including those identified in s 89(4), in making her decision. My evaluation of the relevant considerations, in the context of the material before her Honour, reveals that her decision was supported by a strong factual foundation. No express or implied error in the exercise of her discretion is discernible.

70 Ground 2 of the appeal against sentence does not have a reasonable prospect of success. Leave to appeal against sentence should be refused and the appeal dismissed.