Court of Appeal (WA)|2013-11-20|Before: Newnes JA

JAW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 261 (20 November 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JAW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 261

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Sexual penetration of child under 13 years - Criminal Code (WA), s 320(2) - Whether jury should have been directed as to alternative verdict of indecent dealing - Whether verdict unreasonable - Criminal Appeals Act 2004(WA), s 30(3)(a) - Whether nondisclosure by State - Criminal Procedure Act 2004 (WA), s 95 - Whether child aged 7 years was competent witness - Evidence Act 1906 (WA), s 106B(3)

Criminal law - Appeal against sentence - Offender aged 68 at sentencing - Two counts of sexual penetration of child under 13 years - One count of inciting a child under 13 years to do indecent act - Previous convictions for sexual offending against same child - Earlier convictions for sexual offending against other children - No remorse or mitigating circumstances - High risk of reoffending - Sentence of 5 years 4 months' imprisonment - Cumulative on sentence of 4 years 8 months' imprisonment for previous offending against same child

Blum v The State of Western Australia [2011] WASCA 73

Bosworth v The Queen [2004] WASCA 43

Gulyas v The State of Western Australia [2007] WASCA 263

JAW v The State of Western Australia [2012] WASCA 7

Jensen v The Queen (1991) 52 A Crim R 279

Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389

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

PDS v The State of Western Australia [2006] WASCA 20

RMS v The State of Western Australia [2010] WASCA 76

Robinson v The Queen (1991) 56 A Crim R 133

Rock v The State of Western Australia [2007] WASCA 121

Roffey v The State of Western Australia [2007] WASCA 246

Rowan v The State of Western Australia [2009] WASCA 185

Scriva v The State of Western Australia [2010] WASCA 89

The State of Western Australia v Fleming [2010] WASCA 162

The State of Western Australia v JWRL (a child) [2010] WASCA 179

The State of Western Australia v Prince [2011] WASCA 22

Truscott v The State of Western Australia [2007] WASCA 62

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

Vo v The State of Western Australia [2012] WASCA 6

White v The Queen [2006] WASCA 62

Wilson v The State of Western Australia [2010] WASCA 82

1 NEWNES JA: The appellant was convicted after trial on two counts of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA), and one count of inciting a child under the age of 13 years to do an indecent act, contrary to s 320(5). On 6 December 2012, he was sentenced to a total effective term of 5 years and 4 months' imprisonment. The sentence was ordered to be served cumulatively upon a sentence of 4 years and 8 months' imprisonment the appellant was already serving for sexual offences against the same child, making a total effective term of 10 years' imprisonment for offending against that child.

2 The appellant appeals against his conviction and, alternatively, appeals against sentence. Leave to appeal against sentence has been granted on ground 1 of his grounds of appeal and leave on ground 2 has been referred to the hearing of the appeal.

3 It is appropriate to deal first with the application for leave to appeal against conviction. The appellant did not have legal representation on that appeal.

The appeal against conviction Background

4 The convictions which are the subject of this appeal are the second occasion on which the appellant has been convicted of sexual offences against the same child. On 12 May 2011, after trial before judge alone, the appellant was convicted on one count of sexual penetration of a child under the age of 13 years and one count of indecent dealing with a child under the age of 13 years, the child in each case being the complainant in respect of the present offences.

5 The facts of that offending were that 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). The offences were not isolated but were representative of a course of sexual offending over a period of approximately one month.

6 On 14 July 2011, the appellant was sentenced as follows:

Indecent dealing with a child under the age of 13 years

Sexual penetration of a child under the age of 13 years

7 The total effective term was therefore 4 years and 8 months' imprisonment. The appellant was made eligible for parole.

8 Appeals against both conviction and sentence were dismissed: JAW v The State of Western Australia [2012] WASCA 7.

9 Following his conviction, the appellant was charged with two further counts of sexual penetration of a child under the age of 13 years and one further count of inciting a child under the age of 13 years to do an indecent act, against the same complainant.

10 In respect of the present convictions, it was the State case that, on a day between December 2008 and December 2009, the complainant (who was then 5 years old) went next door to the appellant's house after school. She was sitting on the couch in the lounge room watching television when the appellant picked her up and took her to his bedroom and placed her on the bed. He pulled her dress up, pulled down her underwear and placed his penis in her anus. That was count 1.

11 It was further alleged that on the same occasion the appellant took the complainant into the lounge room and placed her on the couch. Her dress was up and her underwear down. The appellant lay on top of the complainant and put his penis in her anus. That was count 2 (ts 86).

12 It was alleged that on another occasion the appellant asked the complainant to lick his penis but she refused to do so and the indecent act did not occur. That was count 3.

13 The appellant's case was that the offences had not occurred. He did not give evidence or call any witnesses.

14 After a three day trial, the jury returned a verdict of guilty on the three counts and convictions were recorded accordingly.

15 The grounds of appeal are not entirely clear. The appeal notice has typewritten draft grounds of appeal attached to it, which were apparently drawn with legal assistance. They are as follows:

The decision of the presiding judge to not grant the appellant trial before judge alone resulted in the appellant not having a fair trial.
The trial judge erred by not leaving to the jury the alternate charge of indecent dealing in relation to those counts alleging sexual penetration.

A note from the jury suggested lesser verdicts may have been entered had they been properly instructed as to the alternate offences.

16 Additional grounds of appeal are endorsed in handwriting on the appellant's case, in the following terms:

Unsafe verdict.
Failure of full disclosure by the state.
Mental incompetence of only witness.

17 The appellant's case contains written submissions in support of the typewritten grounds of appeal but not in respect of the handwritten grounds.

18 Section 118 of the Criminal Procedure Act 2004 (WA) (the Act) provides, in effect, that either the prosecutor or the accused may apply for trial by judge alone (s 118(1)) and upon such an application the court may grant an order for a trial by judge alone if it considers 'it is in the interests of justice to do so' (s 118(4)), provided that if the application is made by the prosecutor such an order is not to be made unless the accused consents.

19 It is for the applicant to persuade the court that an order for trial by judge alone should be made. In the absence of such an order, trial is by jury.

20 The factors that may be relevant in determining whether an order for trial by judge alone should be made cannot be stated exhaustively and it would be unhelpful to attempt to do so. What might be relevant in a particular case must depend upon the circumstances of that case. Although the Act identifies two factors which a court might take into account, it does so expressly on the basis that the identification of those factors does not constrain the exercise of the discretion in a particular case. The two factors referred to in the Act are where the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury (s 118(5)(a)), and where it is likely that attempts may be made by corrupt means to influence a member of the jury (s 118(5)(b)). Neither was relevant in this case.

21 In the present case, the solicitor for the appellant had sworn an affidavit in support of, among other things, an application for trial by judge alone. When the application came before Martino CDCJ on 25 September 2012, his Honour pointed out that there appeared to be nothing in the affidavit which provided a basis for the application (ts 11). The appellant's counsel told Martino CDCJ that the appellant contended that the effect of the admission of evidence from the earlier trial, which the State had leave to adduce by way of propensity evidence, would be overwhelming for a jury. His Honour observed that juries often dealt with propensity evidence and asked the appellant's counsel to give the matter some further consideration. The appellant's counsel said he would do so (ts 12).

22 On 19 October 2012, immediately before the complainant's evidence for trial was recorded before Keen DCJ, counsel for the State mentioned to Keen DCJ, in the presence of the appellant's counsel but without comment by him, that the application for trial by judge alone might be reactivated by the appellant. As it turned out, the application was not raised again and, on 19 November 2012, the trial proceeded before a jury. It is to be inferred that the appellant decided not to pursue the application. In any event, the application was not pursued and it is too late now for the appellant to complain that the trial was by jury.

23 This ground of appeal has no reasonable prospect of success.

Ground 2 - the alternative charge of indecent dealing

24 The appellant contends, in substance, that the trial judge erred in respect of the charges of sexual penetration under s 320(2) of the Criminal Code by failing to direct the jury that it was open to them to find the appellant guilty of alternative charges of indecent dealing under s 320(4).

(1) In this section child means a child under the age of 13 years.

(2) A person who sexually penetrates a child is guilty of a crime and is liable to imprisonment for 20 years.

Alternative offence: s 320(4), 321(2) or (4) or 322(2) or (4).

...

(4) A person who indecently deals with a child is guilty of a crime and is liable to imprisonment for 10 years.

26 The question whether there should be such a direction arose in the course of the trial. At the completion of the State's evidence, in the course of a discussion in the absence of the jury between counsel and the trial judge about possible directions to the jury, counsel for the appellant pointed out that an alternative verdict on the lesser offence of indecent dealing was open on the two counts of sexual penetration (ts 170). He said that whether the jury should be so directed was a matter for the State. Counsel for the State declined to ask for such a direction, observing that the case had not been opened or run on that basis and that such a direction was an invitation for a compromised verdict. He said the State would let its case stand or fall on establishing the elements of the offence of penetration. The appellant's counsel said that he '[didn't] disagree' with what had been said by the prosecutor.

27 The trial judge did not give a direction as to the alternative offence.

28 It appears from the particulars of the ground of appeal that the contention such a direction should have been given is founded upon 'a note' to the judge from the jury during the course of the jury's deliberations, which, it is argued, indicates that the jury might have found the appellant guilty of the lesser offence if it had been directed as to the alternative verdict.

29 In fact, there were three notes from the jury. They were as follows:

Could we please have the legal definition of penetration.
We have reached a unanimous decision in relation to one count but we cannot reach a unanimous decision on 2 of the counts. Please provide your advice.
After further considered deliberation we are still unable to come to a unanimous decision on 2 counts. Please provide advice.

30 The circumstances of those notes require a brief explanation.

31 The jury retired to consider its verdict at 1.29 pm on 21 November 2012. After receiving the first note, the trial judge recalled the jury at 2.41 pm and directed it again on the meaning of penetration for the purposes of s 320(2) of the Criminal Code. The jury retired again at 2.44 pm.

32 Following receipt of the second note, the trial judge recalled the jury and at 3.51 pm took their verdict on the count on which they were unanimous, count 3, on which the appellant was found guilty. His Honour then asked the jury to resume deliberations on the other two counts.

33 The third note was received by his Honour about 5.00 pm. He recalled the jury at 5.02 pm and directed that it could return a verdict on which 10 of the jury agreed. The jury retired at 5.04 pm and, at 5.17 pm, returned majority verdicts of guilty on the first two counts.

34 It is unclear which of the notes is relied upon, or whether in fact all of the notes are relied upon by the appellant, in respect of this ground of appeal. In the end, I do not think it matters.

35 In cases which do not involve homicide, there is no general rule that a trial judge is obliged to leave an alternative verdict to a jury. Whether a judge does so is a matter for the discretion of the trial judge, depending on the particular circumstances of the case: Jensen v The Queen (1991) 52 A Crim R 279, 285; Robinson v The Queen (1991) 56 A Crim R 133, 136 - 137; Blum v The State of Western Australia [2011] WASCA 73 [45].

36 In this case, there is nothing to indicate that the primary judge erred in the exercise of his discretion. The indictment did not allege the alternative offence of indecent dealing under s 320(4) in respect of the first two counts of sexual penetration and the State did not put its case on the basis that the appellant may have been guilty of an offence under s 320(4). While the appellant's counsel raised the matter at trial, he did not seek such a direction but left it to the State to decide whether it wished to do so. When the State did not, counsel for the appellant was content to leave the matter at that. His Honour decided not to leave the alternative verdict to the jury. There was nothing subsequently in any of the notes from the jury which required his Honour to direct the jury as to the alternative offence and the appellant's counsel did not suggest otherwise.

37 It necessarily follows from the jury's verdict that it had, by a majority, found that the elements of the offences of sexual penetration had been proved beyond reasonable doubt. I do not consider that any miscarriage of justice has arisen because the alternative verdict was not left to the jury.

38 This ground of appeal has no reasonable prospect of success.

39 This ground has been added in handwriting to the typewritten grounds of appeal. There is a further handwritten indorsement later in the document - 'Only witness was unreliable' - which appears to be an elaboration of this ground.

40 On the hearing, the appellant orally raised two grounds upon which he submitted that the verdict was 'unsafe'. The first was that at the relevant time he was working every day until 6.00 pm so the complainant's evidence that the offences occurred in the afternoon was demonstrably incorrect. The second was that the evidence of both the complainant and her mother was unreliable because they contradicted both themselves and each other.

41 Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal and to set aside a verdict of guilty if, in its opinion, having regard to the evidence, the verdict is unreasonable or cannot be supported. Although the word 'unsafe' used in the ground of appeal does not appear in s 30(3)(a), I take it to be the appellant's intention to rely upon that provision.

42 The question for this court is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. That is, whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. In determining the question, the court must undertake its own independent assessment of all of the evidence. It is not simply a question of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. However, full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.

43 See also Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 and Scriva v The State of Western Australia [2010] WASCA 89.

44 On the first ground, the appellant's immediate difficulty is that there was no evidence which might be capable of supporting it; that is, there was no evidence that the appellant did not return home from work until 6.00 pm. As I have said, the appellant did not give evidence and no evidence was called on his behalf. In the course of cross-examination, however, the appellant's counsel elicited from the complainant's mother that she had observed the appellant's vans leaving his house in the very early hours of the morning and returning mid-afternoon (ts 132). It was not suggested to her that in fact the appellant returned home at a later time. That was the only evidence as to the appellant's working hours and it was consistent with the complainant's evidence that the appellant was at home when she went to his house in the afternoon after school.

45 The second ground, that both the complainant's evidence and her mother's evidence were unreliable because they contradicted both themselves and each other, was put in the most general terms. No particular instances were identified. It appears from the trial transcript that the only conflict between the evidence of the complainant and her mother related to the circumstances in which the complainant told her mother of this offending. The complainant gave evidence that at some time after the appellant went to prison for the earlier offences she told her mother about these offences while they were in the car. The complainant said she did so because she was worried she would get into trouble (ts 39 - 40). The evidence of the complainant's mother, on the other hand, was that the complainant told her of the first offences while they were in the car but that these offences were revealed as the result of an incident, involving the complainant and one of the complainant's cousins, which occurred while she (the mother) was visiting her sister on 23 June 2011 (that is, after the appellant was convicted but before he was sentenced for the earlier offence). The incident caused the mother to ask the complainant whether she knew what sex was. The complainant told her that it involved putting the penis in the anus and that the appellant had done it to her (ts 116 - 117). In cross-examination, the complainant had denied the incident with her cousin and could not recall a conversation of the nature her mother described (ts 41 - 42).

46 Those inconsistencies are not capable of giving grounds to believe that the verdict is unreasonable or cannot be supported. They were of a minor nature and explicable by the fact that a young girl was being asked to recall events some years after the incident. They were revealed to the jury in the course of the cross-examination of the complainant and the jury, who saw and heard both witnesses, was in the best position to assess their significance.

47 An assessment of the evidence reveals no other conflicts or inconsistencies of any significance in, or between, the evidence of the complainant and her mother.

48 This ground of appeal has no reasonable prospect of success.

49 This handwritten ground is again supplemented by an additional handwritten annotation on the appellant's case, 'Denied access to missing court exhibits - witness DVD by the court'.

50 It became apparent at the hearing, however, that the appellant's complaint was two-fold. The first was that the State had failed to disclose a statement made by the complainant on 18 October 2012, with the result that when the complainant's evidence was recorded on 19 October 2011 for the purposes of the trial the appellant's counsel was unable to cross-examine the complainant about discrepancies between that statement and a statement that she had given on 12 August 2011. The second was that the State had failed to disclose a video record of interview by police with a cousin of the complainant, MC, in connection with offending by MC against the complainant.

51 For present purposes, the relevant principles are not in doubt. Under s 95 of the Act, the prosecution is required to serve upon the accused any evidential material that is relevant to a charge which is to be prosecuted in a superior court of this State, including a copy of any document or object that may assist the accused's defence. That obligation is to be discharged within the prescribed period after an accused is committed for trial, and is a continuing obligation which must be satisfied 'as soon as practicable' at any time thereafter if the prosecutor receives or obtains evidentiary material that is relevant to the charge: The State of Western Australia v JWRL (a child) [2010] WASCA 179 [58].

52 However, the obligation to disclose is not unqualified. Whether material may assist an accused's defence requires an assessment of whether material in the possession of the organisation that conducted the investigation has that character. This requires a 'sensible appraisal by the prosecution' of whether available material could assist the defence: Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 [14]. Thus the obligation to disclose arises where, on a sensible appraisal, it can be reasonably anticipated that that material would assist the defence: Vo v The State of Western Australia [2012] WASCA 6 [28].

53 Whether the prosecution breached its duty of disclosure is to be assessed at the time the disclosure is to be performed: White v The Queen [2006] WASCA 62 [194]; Vo [29].

54 There is no substance in the appellant's first complaint. The evidence of the complainant was recorded for use at the trial at a hearing on 19 October 2012, the day after the complainant made the statement. At that hearing, counsel for the State referred to an 'addendum statement' of the complainant of 18 October 2012, without comment by the appellant's counsel, and then led from the complainant oral evidence to precisely the same effect as the content of the statement (ts 26 - 27). Counsel for the appellant cross-examined the complainant about some of the differences between that evidence and her statement of 12 August 2011 (ts 43 - 45). It is evident that the appellant's counsel was not taken by surprise by the reference to the statement of 18 October 2012 and it is to be inferred that he had a copy of it. If he did not, it is evident that he was satisfied for its contents to be disclosed by way of oral evidence.

55 The second complaint is that the video record of the police interview with MC should have been, but was not, disclosed by the prosecution. The reference to MC requires some explanation. Evidence was given at the trial that MC had pleaded guilty in the Children's Court to one count of sexual penetration of a child under the age of 13 years and three counts of indecent dealing with a child under the age of 13 years. MC was 11 years of age at the time. The victim was in each case the complainant and the offending occurred in April 2008 (sexual penetration) and in December 2008 (indecent dealing) (ts 158 - 161). In the course of his cross-examination of Detective Youlden, counsel for the appellant had Detective Youlden read out the statement of material facts in respect of each of those offences, the facts bearing a number of similarities to the description the complainant had given of the appellant's offending. The obvious purpose was to suggest to the jury that the complainant had attributed to the appellant offending that had in fact been committed by MC, and indeed in cross-examination that proposition was expressly put to the complainant, who denied it. The jury by its verdict also plainly rejected it.

56 On the appeal, the appellant asserted that in an interview with police, MC had stated that he, another cousin and the complainant had viewed pornography together on the internet. The appellant contended that the video record of interview should have been disclosed to him because the statements by MC as to the viewing of online pornography by the complainant provided alternative explanations which could have been put to the jury for the complainant's knowledge of sexual matters and also for the offending which she had described, namely that she had seen the conduct on the online pornography and in a confused state of mind thought it had occurred to her at the appellant's house.

57 There was, however, no evidence that MC had made a statement that the complainant had viewed online pornography with him. The appellant did not produce a copy of the video record of interview with MC and a copy was not before us. Moreover, even if MC had made such a statement, it would not be sufficient to found the appellant's contention. That contention depended upon the complainant having not only viewed pornography, but having viewed conduct of the same nature as she had attributed to the appellant. In his submissions the appellant did not assert that MC's statement went that far. The proposition that the statements alleged to have been made by MC supported a contention that the complainant had misattributed to the appellant conduct which she had seen online was therefore entirely speculative.

58 This ground of appeal has no reasonable prospect of success.

Ground 5 - mental incompetence of only witness

59 In relation to this handwritten ground the appellant's case has a further handwritten notation, 'Only witness was clearly incompetent and the judge was aware of this'. In fact, three witnesses gave evidence at the trial, the complainant, the complainant's mother, and Detective Youlden. All were called by the State. On the hearing of the application for leave it became clear that this ground related to the complainant.

60 This is not the first occasion on which the issue of the complainant's competence to give evidence has been raised. The same ground was relied upon by the appellant in the appeal against his earlier convictions. In that case, the applicable legal principles were canvassed by McLure P (with whom Pullin JA and Allanson J agreed): JAW [15] - [19]. It is unnecessary to repeat them. McLure P also set out in full the questions the trial judge had asked the complainant for the purpose of assessing whether the complainant was competent under s 106B(3) of the Evidence Act 1906 (WA), and the complainant's responses to those questions. Her Honour concluded (at [21]) that based on the exchange between the complainant and the trial judge there was a reasonable factual foundation for the trial judge's opinion that the complainant was competent under s 106B(3). Again, it is unnecessary to repeat the exchange.

61 At the time of this trial, the complainant was some 18 months older. There was nothing to indicate that her competence to take an oath or make an affirmation under s 106B had deteriorated. Indeed, it might reasonably have been expected that her competence would have improved rather than diminished. However, in assessing whether the complainant was competent to give evidence, the trial judge followed the same procedure as had been followed in the earlier trial. The questions his Honour put to the complainant and her responses to them were substantially to the same effect as in the earlier trial. On the basis of the complainant's answers, his Honour concluded that the complainant was competent under s 106B(3). In my view, the exchange between the complainant and his Honour clearly provided a reasonable factual foundation for that conclusion.

62 This ground has no reasonable prospect of success.

63 I would refuse leave to appeal and dismiss the appeal against conviction.

The appeal against sentence The sentencing remarks

64 After outlining the facts as set out above, the sentencing judge observed that the appellant had encouraged the complainant to visit his house in what was evidently part of a process of grooming. His Honour noted that the earlier offences by the appellant against the complainant had occurred in about the same period as the current offences but declined to treat the current offending as part of a series of offending. His Honour considered the current offences to be separate and discrete, and to be much more serious than the earlier offences.

65 The sentencing judge noted that the appellant had other prior convictions for sexual offending against children. In 1994, the appellant was fined for wilful exposure. In 1995, he was convicted of nine sexual offences against his step-granddaughter, involving indecent dealing and digital and penile penetration while the victim was aged between 5 and 11 years old. He was sentenced to 7 years' imprisonment and was released on parole after 4 1/2 years. In 2004, the appellant was convicted of seven sexual offences involving his 4-year-old step-grandson. He was sentenced to 2 years' imprisonment. His Honour noted the escalating seriousness of the appellant's offending (ts 234).

66 His Honour observed that during those terms of imprisonment the appellant had undertaken sex offender treatment programmes but it was apparent that the programmes had not deterred him from further offending. The psychologist's report found that the appellant was of a high risk of re-offending. The sentencing judge considered that the appellant had shown no remorse and there were no significant mitigating circumstances.

67 The sentencing judge noted that the appellant was 66 years of age at the time of the offences and 69 years of age at the time of sentencing. He was in good health. His Honour noted that the appellant had an unhappy childhood and was sexually abused by a family friend. He had been gainfully employed for most of his working life and was married for 21 years. However, this marriage ended following his release from prison in 2000. The appellant had since had an online relationship with a woman who lived in the Philippines but that had recently ended.

68 The sentencing judge observed that if the appellant had been sentenced at the same time for all of the offences against the complainant, it was likely that some degree of concurrence would have been allowed. His Honour said he would take that into account in the sentences he imposed for the current offences. He sentenced the appellant as follows:

Sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code

Inciting a child under the age of 13 years to do an indecent act, contrary to s 320(5) of the Criminal Code

69 The total effective sentence was therefore 5 years and 4 months' imprisonment. He ordered that the sentence be served cumulatively upon the sentence imposed on 14 July 2011, a combined total effective sentence of 10 years' imprisonment. The sentencing judge said that he considered a total effective sentence of 10 years' imprisonment was appropriate for the overall criminality involved in all the offending against the complainant. The appellant was made eligible for parole.

70 The appellant relied upon the following grounds of appeal:

The learned judge erred in imposing a total effective sentence which infringed both limbs of the principle of totality, having regard to the total criminality involved in the various offences viewed in their entirety and all the circumstances of the case, including those referable to the appellant personally, including the fact the sentence was ordered to be served entirely cumulatively upon a term the appellant was already serving.
The learned sentencing judge erred by failing to make any allowance for the fact that the conditions of the appellant's incarceration would weigh more heavily on him than they would on a younger healthier prisoner.

71 The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].

72 The second limb is that the court should not impose a crushing sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. Counsel for the appellant acknowledged that the second ground of appeal overlapped with this limb.

73 The totality principle also applies in circumstances where the offender is serving a sentence for another offence or other offences at the time of sentencing: Martino [17]; The State of Western Australia v Fleming [2010] WASCA 162 [29].

74 This court cannot, however, intervene merely because it would have exercised the sentencing discretion differently to the sentencing judge. It can only do so if a material error on the part of the sentencing judge is shown. A contention that a sentencing judge infringed the totality principle involves an allegation that error is to be inferred from the result. In such a case, it is necessary to show that the sentence was so unreasonable or unjust that the appellate court is compelled to the conclusion that, although it is not possible to discover the exact nature of the error, a substantial wrong has nevertheless occurred: Wilson v The State of Western Australia [2010] WASCA 82 [2].

75 The dominant sentencing considerations in cases of sexual offences against children are general and personal deterrence and the protection of children: Rock v The State of Western Australia [2007] WASCA 121 [11]. There is no tariff for sexual offences involving children because of the great variety that is possible in the circumstances of the offending and the offender: RMS v The State of Western Australia [2010] WASCA 76 [24]. The sentence to be imposed in any case must depend upon the particular facts and circumstances of the case. However, while bearing in mind the limitations necessarily involved in doing so, regard is to be had to sentences customarily imposed for offending of a similar nature in an endeavour to achieve broad consistency in sentencing: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53]; The State of Western Australia v Prince [2011] WASCA 22 [19].

76 The appellant did not challenge the individual sentences imposed by the sentencing judge or the total effective sentence of 5 years and 4 months' imprisonment. It was, however, submitted that the sentencing judge erred in making the sentence wholly cumulative on the sentence for the earlier offending, the resulting total effective sentence of 10 years' imprisonment being disproportionate to the overall criminality involved in all the offending against the complainant.

77 It was further submitted that in view of the appellant's age, the total effective sentence of 10 years' imprisonment infringed the second limb of the totality principle. The appellant was 68 years of age at the time of sentencing for the earlier offences against the complainant and will be 78 years of age at the completion of the total effective term of 10 years' imprisonment. Counsel argued that the sentencing judge had failed to pay proper regard to the effect that such a term would have on a man of that age.

78 The offending in this case was clearly very serious. The penile penetration of the anus of a 5 or 6-year-old child is a serious and degrading offence. The offending was not opportunistic. The sentencing judge found that the appellant's encouragement of the complainant to visit his house was part of a grooming process. The previous offences against the same child, involving one count of sexual penetration (cunnilingus) and one count of indecent dealing, while not as serious as the current offences, were nonetheless serious. The appellant has demonstrated no remorse in relation to the offending and there were no mitigating circumstances.

79 I have had regard to the cases referred to by counsel and a number of other cases. It is unnecessary to canvass them all.

80 In Bosworth v The Queen [2004] WASCA 43, the offender pleaded guilty to seven counts of indecently dealing with a child under the age of 14 years and three counts of carnal knowledge of a girl he knew to be his daughter. The offences included digital and penile penetration of the victim's vagina. They were representative of sexual acts involving the victim which had occurred about once or twice a week over the two year period. The offender had no prior convictions for sexual offending and showed significant remorse. An application for leave to appeal against a sentence of 8 years' imprisonment (on a post-transitional basis) was dismissed.

81 In PDS v The State of Western Australia [2006] WASCA 20, the offender was convicted after trial of six counts of sexual penetration of a child, his daughter, over a four year period when she was between 12 and 16 years of age. One offence involved penile penetration of the anus, another penile penetration of the vagina and the rest involved digital penetration, cunnilingus and fellatio. The offences occurred against a background of repeated uncharged sexual offending against the complainant. The offender, who was aged 40 at the time of sentencing, showed no remorse. He had no relevant prior convictions. An appeal against a sentence of 12 years' imprisonment, described as 'perhaps severe', was dismissed.

82 In Truscott v The State of Western Australia [2007] WASCA 62, the offender was convicted after trial on four counts of sexual penetration of a child under 13 years (three of penile penetration of the anus and one act of fellatio), one count of indecent dealing and one count of indecent recording. The child was his de facto daughter. The offending occurred over about a two year period, while the child was aged between 5 and 7 years. The offences were representative of a course of sexual offending against the victim. The offender, who had no relevant prior convictions, showed no remorse. Leave to appeal against a total effective sentence of 10 years' imprisonment was refused.

83 In Rowan v The State of Western Australia [2009] WASCA 185, the offender pleaded guilty to one count of sexual penetration of a child between the ages of 13 and 16 years; six counts of sexual penetration of a child under the age of 13 years; three counts of indecent dealing with a child under the age of 13 years; one count of procuring a child under the age of 13 years to do an indecent act; one count of encouraging a child under the age of 13 years to engage in sexual behaviour; and one count of indecent dealing with a child between the ages of 13 and 16 years. The four complainants ranged in age from 8 - 9 years to 14 - 15 years. Two of the complainants were sisters. The offending occurred over a two year period when the appellant was aged between 74 and 75 years. All of the sexual penetration offences involved cunnilingus. The offences did not involve actual or threatened violence, aggression, intimidation or any grooming and the offender was not in a relationship of trust with any of the complainants. The offender had no relevant prior convictions. An appeal against a total effective sentence of 15 years' imprisonment was allowed and a sentence of 8 years' imprisonment imposed.

84 In The State of Western Australia v Prince, the offender was convicted after trial of 17 sexual offences, including eight counts of sexual penetration, of a child under the age of 16 years. The child was his granddaughter. The offending involved five discrete incidents over a period of approximately 14 months when the victim was from 9 to 11 years of age. Two of the counts involved penile penetration of the anus and three involved fellatio, with the offender ejaculating into the victim's mouth on one occasion. The offender, who was aged 51 at the time of sentencing, had no relevant prior criminal record. A State appeal against a total effective sentence of 5 years and 3 months' imprisonment was upheld and a sentence of 8 years' imprisonment imposed.

85 See also VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.

86 In this case, the appellant did not have the benefit of the mitigation that a plea of guilty would have brought, or any other mitigating circumstances, and, unlike the offenders in the cases referred to above, he has a prior record of sexual offending against children. The offending in respect of the complainant occurred against a background of previous sexual offending by the appellant against his step-granddaughter in 1995 and his 4-year-old step-grandson in 2004, for which the appellant was sentenced to terms of imprisonment of 7 years and 2 years respectively. It is evident that those terms of imprisonment did not deter the appellant from continuing to offend and he has apparently derived no benefit from the sex offender treatment programmes he completed while in prison. He remains at a high risk of reoffending.

87 Whilst the appellant is not to be punished again for his past offending, his antecedents demonstrate that these offences were not an uncharacteristic aberration and highlight the particular need in his case for personal deterrence and the protection of children.

88 Advanced age can be relevant to determining whether a sentence is crushing for the purposes of the second limb of the totality principle. That is because at a late age each year of a sentence represents a substantial proportion of the period of life left to the offender. In addition, imprisonment may be more arduous for such a person than it would be for someone younger. However, age is only one factor in the sentencing

process, and advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or which is otherwise inappropriate: Gulyas v The State of Western Australia [2007] WASCA 263 [35]. Accordingly, whether and, if so, to what extent leniency should be given to an offender of advanced age, must depend on all of the facts and circumstances of the particular case.

89 In this case, I do not consider the appellant's age carries significant weight. While the appellant is no longer a young man, he is not of a very advanced age and he is, as the sentencing judge found, in good health. The offending was very serious and the appellant is without remorse and at a high risk of reoffending.

90 While the sentence is undoubtedly severe, in the circumstances I am not persuaded that it is disproportionate to the overall criminality involved in all the offending.

refuse leave to appeal against conviction, with the result that the appeal against conviction is dismissed; and
dismiss the appeal against sentence.

JAW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 261 (20 November 2013)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (144 paragraphs)

JAW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 261 (20 November 2013)

Ground 2 - the alternative charge of indecent dealing

Ground 5 - mental incompetence of only witness

Legislation Cited (2)

Cases Cited (6)