Criminal law - Appeal against conviction - Child complainant - Sufficiency of inquiry under s 106B(3) of Evidence Act 1906 (WA) - Whether child competent to give evidence on oath

Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Whether sentencing judge erred in treating uncharged acts as aggravating factor - Turns on own facts

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA)

Evidence Act 1906 (WA), s 106B, s 106C

Leave to appeal on all grounds in sentence appeal refused

Giglia v The State of Western Australia [2010] WASCA 9

Grindrod v The Queen [1999] WASCA 44

GWD v The State of Western Australia [2010] WASCA 206

Hamilton v The Queen (Unreported, WASCA, Library No 970082, 4 March 1997)

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Revesz v The Queen (1996) 88 A Crim R 253

The State of Western Australia v Eades [2011] WASCA 157

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Zimmerman v The State of Western Australia [2009] WASCA 211

1 McLURE P: This is an appeal against conviction and an application for leave to appeal against sentence.

2 On 12 May 2011 the appellant was convicted after a trial by judge alone of one count of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) (the Code) and one count of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Code. The two offences were against one complainant who was aged 5 when they were committed. The appellant was acquitted of one count of indecent dealing.

3 The appellant was sentenced by Davis DCJ, who also conducted the trial, to a term of 2 years' imprisonment on count 1 and a term of 4 years and 8 months' imprisonment on count 2. The sentences were ordered to be served concurrently. The appellant was made eligible for parole.

4 The relevant facts and background are as follows. The appellant lived next door to the complainant and her family. She would visit his home from time to time. The offences took place sometime between 17 October 2009 and 13 November 2009 in the appellant's bedroom. He laid the complainant on his bed so she was lying on her back. After removing her underpants and his clothing, the appellant lay on top of the complainant and put his penis on her vagina (count 1). He then performed cunnilingus on the complainant (count 2). These offences were not isolated. They were representative of a course of sexual offending over a period of approximately one month.

5 The offending came to light when the complainant's mother saw the complainant, who was on top of a slide in the backyard, mouthing words as if she was talking to someone. The complainant told her mother she was talking to a friend. As her mother was taking the complainant inside their house, a small chocolate bar came over the fence from the appellant's backyard. The next day the complainant's mother asked her whether the appellant had ever touched her. The complainant said yes and gave her mother some details.

6 The complainant participated in a video-recorded interview with police officers on 17 November 2009. This video comprised part of the complainant's evidence-in-chief at trial.

7 On 8 April 2011 the complainant's evidence was to be pre-recorded before Keen DCJ. However, due to technical issues her evidence was not recorded. Before taking her evidence, Keen DCJ made inquiries of the complainant under s 106B of the Evidence Act 1906 (WA) (the Act) but did not make any finding as to her competence.

8 On 27 and 28 April 2011 the complainant, who was then aged 7, gave sworn evidence at the appellant's trial. Before giving her evidence, the trial judge made inquiries of the complainant under s 106B of the Act.

9 The sole ground in the conviction appeal is in the following terms:

The learned trial judge erred both in law and fact, and there was a miscarriage of justice, when she did not adequately determine, contrary to s 106B(3) of the Evidence Act 1906, that the complainant understood that the giving of evidence is a serious matter and in giving evidence she had an obligation to tell the truth.

10 Section 106B of the Act deals with children under the age of 12 years who may give sworn evidence. It relevantly provides:

(1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), give evidence on oath or after making an affirmation.

(2) ...

(3) A person referred to in subsection (1) ... is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the person understands that -

(a) the giving of evidence is a serious matter; and

(b) he or she in giving evidence has an obligation to tell the truth.

11 Section 106C of the Act governs when unsworn evidence may be given. It relevantly provides:

A person referred to in section 106B(1) ... who is not competent to give evidence under section 106B(3) may give evidence without taking an oath or making an affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced.

12 Prior to the commencement on 1 January 2005 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA) (the 2004 Amendment Act) the equivalent of the current s 106B(3)(b) required the child to understand that 'he or she in giving evidence has an obligation to tell the truth over and above the ordinary duty to tell the truth'. The italicised words were deleted by the 2004 Amendment Act. The parliamentary intention was that children should be required to do no more than understand their obligation simply to tell the truth (Second Reading Speech for the bill which became the 2004 Amendment Act: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4609).

13 For the purpose of assessing whether the complainant was competent under s 106B(3), the trial judge questioned the complainant as follows:

DAVIS DCJ: ... Hello, (complainant's first name) [X], can you see and hear me?

Yes.

DAVIS DCJ: My name's Judge Davis. Can I call you [X], or is there something else you like to be called?

Just call me [X].

DAVIS DCJ: Is there somebody there with you?

Yes.

DAVIS DCJ: In that room? Can I just ask them to come forward and identify themselves. We have Ms Reynolds?

Kathleen Reynolds, court officer, your Honour.

DAVIS DCJ: Yes.

Sarah Elms, Child Witness Service.

DAVIS DCJ: Thank you. Now, I'm the judge of the court and we're here to talk to you today, [X], but before we start I'm going to ask you a few questions and---?

Yes.

DAVIS DCJ: - - - explain some of the rules in court?

Yes.

DAVIS DCJ: So your name is [X] (surname) [Y]. Do you have a middle name?

Yes.

DAVIS DCJ: What's your middle name?

[Z].

DAVIS DCJ: [Z]. How old are you?

Seven.

DAVIS DCJ: When's your birthday?

December of the - I think it's the 9th.

DAVIS DCJ: 9 December?

I think.

DAVIS DCJ: Do you have any brothers or sisters?

No.

DAVIS DCJ: Who lives with you at home?

I have Mum and Dad and two dogs and one cat and a fish.

DAVIS DCJ: Two dogs, one cat, and what was the other thing? I missed it?

A fish.

DAVIS DCJ: A fish. What sort of fish?

The fish is like a goldfish.

DAVIS DCJ: A goldfish. Do your pets have names?

Yes.

DAVIS DCJ: What are the dogs' names?

Ella(?) is the big one and Patch(?) is the little one.

DAVIS DCJ: Patrick?

Patch.

DAVIS DCJ: Patch. And the cat, what's that called?

Cosmo(?).

DAVIS DCJ: Cosmo. And does the fish have a name?

No.

DAVIS DCJ: No. Now, what year are you in at school?

Year 2.

DAVIS DCJ: And what's your teacher's name?

Mrs Ovens and Mrs Allen.

DAVIS DCJ: What do you like best at school?

I like painting.

DAVIS DCJ: Are there things you find hard at school?

No.

DAVIS DCJ: No?

No.

DAVIS DCJ: Does your teacher have rules in the classroom, or do your teachers have rules in the classroom?

My teacher has rules in the classroom.

DAVIS DCJ: What - what rules does she have?

Like you're not allowed to hurt people, you have to listen to the teacher.

DAVIS DCJ: When you get home from school what do you like to do best?

I usually go to Aunty's.

DAVIS DCJ: Now, you talked about rules in the classroom. I'm going to talk to you about rules in court. A very important rule is you have to tell the truth when answering questions?

Yes.

DAVIS DCJ: Do you understand that?

Yes.

DAVIS DCJ: If you don't know the answer to a question you can say 'I don't know', do you understand that?

Yes.

DAVIS DCJ: So if someone asks you a question and you don't know the answer what will you say?

'I don't know the answer.'

DAVIS DCJ: If you don't understand a question it's okay if you say, 'I don't understand'. So if someone asks you a question and you don't understand what they're saying to you, what will you say?

I can't - don't understand the question.

DAVIS DCJ: Right. Good. And if someone asks you something and you can't remember can you tell me what you can say?

I can't remember the question.

DAVIS DCJ: Now, if you need to have a break at any time you can just say, 'Can we please stop for a while', do you understand that?

Yes.

DAVIS DCJ: Do you have a drink of water in front of you?

Yes.

DAVIS DCJ: Okay. Now, I'm going to ask you some questions and if I said to you your name - your middle name was Lucy, is that the truth?

No.

DAVIS DCJ: And if I said to you that you had three dogs and a cat, is that the truth?

No.

DAVIS DCJ: If I said you had a fish like a goldfish, is that the truth?

Yes.

DAVIS DCJ: Okay. Thank you. Now, what have you come to court to speak about today?

[The appellant].

DAVIS DCJ: And is it important to tell the truth in court?

Yes.

DAVIS DCJ: It's important to tell the truth all the time, isn't it?

Yes.

DAVIS DCJ: But it's more important - in court than anywhere else. Do you understand that?

Yes.

DAVIS DCJ: Do you promise to tell the truth in court today?

Yes.

DAVIS DCJ: All right. Now, [X], the next person - you won't see but you'll hear, and they're going to ask you to repeat something. Can I just ask the court officer, Ms Reynolds, is [X] going to take the oath or the affirmation?

Yes.

Right. (Indistinct)

DAVIS DCJ: Ms Reynolds?

Your Honour, I'm not sure. She's going to take the oath, your Honour.

DAVIS DCJ: The oath.

14 The complainant was then sworn. The appellant accepted, as was clearly the case, that at the conclusion of her questions the trial judge was of the opinion that the complainant was competent under s 106B(3) of the Act.

15 A child under 12 years of age may only give sworn evidence in any proceeding if the condition in s 106B(3) is satisfied. Although the condition is subjective, being the opinion of the court that the child is competent under subs (3), there must be shown to be an objectively reasonable factual foundation for the opinion that the child is relevantly competent.

16 The statutory requirements have been considered by the court on a number of occasions including in Revesz v The Queen (1996) 88 A Crim R 253; Hamilton v The Queen (Unreported, WASCA, Library No 970082, 4 March 1997); Grindrod v The Queen [1999] WASCA 44; and GWD v The State of Western Australia [2010] WASCA 206. Care must be taken with cases decided on the basis of the statutory requirement that a child understand that he or she had an obligation to tell the truth that is over and above the ordinary duty to tell the truth.

17 In Hamilton v The Queen Malcolm CJ identified a line of inquiry sufficient to permit an opinion as to the competence of a child under s 106B, which approach was approved in Grindrod [35]. However, 'sufficiency' in those cases was assessed by reference to the previous statutory framework.

18 The following principles are uncontroversial. Generally speaking, the form of the question will not be determinative. The reaction and response evoked from the child will be critical. Demeanour will also be important: Grindrod [28]. Each case will depend on its own facts and there is no formula of words or list of questions which must be asked: Revesz (260).

19 Further, s 106B does not require the court to make any inquiry as to whether the child understands the repercussions of not telling the truth and nor does the child have to understand the difference between telling the truth in court and elsewhere: GWD [49].

20 The appellant contends the inquiry in this case was insufficient to enable the trial judge to form an opinion as to the complainant's competence because the judge had failed to ask the complainant to explain in her own words that she understood what it was she was there to talk about, why she was there and her understanding of the occasion. In essence, the complaint is that there is a lack of open-ended questions on topics relating to the purpose and seriousness of the particular trial in which the complainant was participating. An understanding of those topics, focussed as they are on the particular not the general, is not mandated by s 106B(3). Further, the form of the questions may not be determinative.

21 In my view there was a reasonable factual foundation for the trial judge's opinion that the complainant was competent under s 106B(3). The inquiry conducted by the trial judge can be broken down into a number of parts. The first part of the inquiry is aimed at testing the level of the complainant's comprehension of what she was being asked, her ability to know facts, grasp ideas, understand concepts and communicate a response. The complainant was quickly and appropriately responsive to all of the questions in this (and other parts) of the inquiry. In the second part, the judge's focus turned to the topic of 'rules'. The complainant's answers showed a clear understanding of the concept in the classroom context. She knew they had to be followed and had a moral dimension. This provided the judge with a springboard to inform the complainant and test her understanding of court rules about answering questions truthfully, covering not only the accuracy of the substantive content, but what to do if you do not know or cannot remember the correct answer. In the third part, the trial judge questioned the complainant about the truth of propositions which tested her consistency with the information she had already provided. The complainant's answers demonstrated that she understood the meaning of telling the truth. The complainant's affirmative answers to leading questions relating to the importance of telling the truth in court in the final part of the inquiry have significant weight because of the structured build up. The reader is left with the firm impression that the complainant understood the final questions and the concepts in those questions and that her answers were her own, considered response.

22 Thus, at the completion of the inquiry the trial judge had reasonable grounds for her opinion that the complainant understood that the giving of evidence is a serious matter and that in giving evidence she had an obligation to tell the truth. A sleeper issue in this appeal is whether the condition relating to the capacity of a child to give sworn evidence must be satisfied before the child has given evidence at the trial. As to which, contrast the language in s 106B(1) with that in s 106C which expressly states that the court must form the opinion before the child gives evidence. The issue arose because the State, for the purpose of invoking the proviso, relied on the trial judge's express finding in her reasons as to the appellant's guilt (at [52]) that the complainant understood the nature and importance of telling the truth. As I have concluded that the condition was satisfied before the complainant gave her sworn evidence, it is unnecessary to determine this issue.

23 For these reasons, I would dismiss the conviction appeal.

24 The appellant relies on two grounds of appeal. He claims the sentence on count 2 is manifestly excessive (ground 1) and that the sentencing judge erred when she viewed as an aggravating factor offences with which the appellant had not been charged or convicted (ground 2).

25 Leave to appeal will not be granted unless the appellant is able to demonstrate that a ground of appeal has a reasonable prospect of succeeding. This court may only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law.

26 A claim of manifest excess depends upon the implication of error from the type or length of sentence imposed. In this case the appellant claims the length of the sentence (4 years 8 months) for the sexual penetration offence (count 2) is manifestly excessive.

27 When determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type, the standards of sentencing customarily observed and the personal circumstances of the offender.

28 The maximum penalty for the offence the subject of count 2 is 20 years' imprisonment (s 320(2) of the Code).

29 The appellant was aged 66 at the time of the offending and 68 at the time of sentencing. He had an unhappy childhood and was sexually abused as a child by a family friend. The appellant had been gainfully employed for most of his working life. He had been married for 21 years, that marriage ending after his release from prison in 2000. The appellant now has a long distance relationship with a woman who lives in the Philippines whom he met via the internet.

30 The appellant has a prior record of convictions for sexual offending against children. In 1995 he was convicted of nine sexual offences against his step-granddaughter, involving indecent dealing and digital and penile penetration. The offences occurred between 1985 and 1991 when the victim was between the ages of 5 and 11. The appellant pleaded guilty to some of the offences and was sentenced to a term of 7 years' imprisonment. He was released on parole after serving 4 1/2 years. In 2004 the appellant was convicted on his fast-track pleas of guilty of seven sexual offences against his 4-year-old step-grandson and sentenced to 2 years' imprisonment. These offences were committed in 1992 and 1993. He was also fined for wilful exposure in 1994.

31 Sex offender treatment programmes completed by the appellant whilst in prison had not deterred him. The appellant refused to discuss the present offences with the court-appointed psychologist. Based on the psychologist's report, the sentencing judge found that the appellant was at a high risk of reoffending, there being no real prospect of rehabilitation. The appellant displayed no remorse and continued to deny his offending.

32 There is no arguable claim that the sentence for count 2 is manifestly excessive. There is no significant mitigation in this case. The appellant was found guilty after a trial, continues to deny his offending, shows no remorse, has a significant prior record of sexual offending against young children and is at a high risk of reoffending. Significant weight had to be given by the sentencing judge to personal deterrence and protection of the public. The sentence of 4 years and 8 months' imprisonment on count 2 when considered in isolation is not, having regard to all relevant sentencing considerations, at the high end of the sentencing range. When regard is also had to the fact that the sentence on count 2 is to be served concurrently with count 1, the claim of manifest excess is completely devoid of merit. See Giglia v The State of Western Australia [2010] WASCA 9 [40]; The State of Western Australia v Eades [2011] WASCA 157 [22].

33 As to ground 2, the appellant contends it is implicit in the sentencing judge's finding that the appellant had committed other uncharged acts that she had relied on that finding to 'aggravate the sentence she imposed'.

34 A person must not be punished for an offence of which he or she has not been convicted: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389; Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 [32]; Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26] - [29]; Zimmerman v The State of Western Australia [2009] WASCA 211.

35 However, a sentencing judge is bound to take into account all surrounding circumstances relevant to the commission of the offence. The fact that an offence is not isolated is a relevant sentencing consideration. It is relevant to an assessment of the weight to be given to personal deterrence and the protection of the public.

36 The sentencing judge made a number of references in her reasons to the uncharged acts. In the course of her findings of fact for sentencing purposes, the sentencing judge said:

These offences were not, as I explained in my written reasons, isolated incidents. There were other occasions, as the child told police in her visually recorded interview, where you had licked her. As set out in paragraph 83 of my reasons I found her evidence about these other times reliable and true (ts 398).

As I have already mentioned, this was not an isolated incident. These counts are representative of other sexual offending against this child. The period over which you offended is one of approximately one month, so there was no extended period (ts 402).

38 The statements do not, individually or cumulatively, establish that the sentencing judge punished the appellant for offences of which he had not been convicted. The sentencing judge had regard to the uncharged acts in the same way that she had regard to the appellant's prior record. On that subject she said, in the context of the need for personal deterrence:

Your criminal record is, of course, not an aggravating factor but it does demonstrate that this offence or these offences for which I'm sentencing you today is not an uncharacteristic aberration (ts 400).

39 Ground 2 has no reasonable prospect of succeeding. Even if it did, the discretion to allow the sentence appeal would not be enlivened because in my opinion it is not arguable that a different sentence should have been imposed: Criminal Appeals Act 2004 (WA) s 31(4)(a).

40 Leave to appeal on grounds 1 and 2 should be refused and the sentence appeal dismissed.

41 For these reasons, the appeal against conviction should be dismissed, leave to appeal should be refused on all grounds in the sentence appeal and that appeal also dismissed.