Klavins v R [1999] WASCA 37

Evidence - Admissibility - No objection taken to admission of evidence at trial - Whether evidence prejudicial

Sentencing - Circumstances justifying indefinite imprisonment

Sentencing Act 1995 s 89(2)(d)

Respondent : State Department of Public Prosecutions

A Child v Andrews (1995) 12 WAR 552

Australian Coal v Commonwealth (19530 [1953] HCA 25; 94 CLR 621

Daniels v The Queen (1989) 1 WAR 435

HG v R [1999] HCA 2; (1999) 160 ALR 554

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

Hutton v The Queen, unreported; CCA SCt of WA; Library No 970083; 11 March 1997

Jarvis v The Queen, unreported; SCt of WA; Library No 930391; 14 June 1993

M v The queen [1994] HCA 63; (1994) 181 CLR 487

Mill v The Queen (1988) 166 CLR 59

R v Freeman [1980] VicRp 1; [1980] VR 1

R v Podirsky (1989) 43 A Crim R 404

Ratten v R [1972] AC 378

Subramaniam v Public Prosecutor [1956] 1 WLR 965

Suresh v The Queen, unreported; CCA SCt of WA; Library No 960432; 9 August 1996

Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145

The Queen v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999

The Queen v Keglevic, unreported; CCA SCt of WA; Library No 970056; 20 February 1997

Thompson v The Queen, unreported; CCA SCt of WA; Library No 980600; 19 October 1998

Weng Keong Chan (1989) 38 A Crim R 337

Yanko v R, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

1 IPP J: This is an appeal against conviction and an application for leave to appeal against sentence.

2 The appellant was convicted after a trial in the District Court of supplying a quantity of methylamphetamine to another, three counts of indecent assault, three counts of sexual penetration without consent, two counts of administering a stupefying drug with intent to commit an indictable offence, and one count of stealing. The offences were committed during the period from 26 April to 4 May 1996. The complainant in regard to all the offences was a girl aged 16 years.

3 The offences committed by the appellant formed part of a chain of criminal conduct which was chilling in its cruelty and callousness. It is necessary to set out the relevant facts in some detail.

4 In April 1996 the complainant was employed at a roadhouse between Mr Newman and Pt Hedland. The appellant was passing through and noticed her. He offered her employment as his driver at twice the wage she was then earning. On 25 April 1996 the appellant, accompanied by another woman, picked up the complainant and the three of them drove to Meekatharra. The next day they drove to Kalgoorlie. On the way, the appellant behaved in a way that caused the complainant to become frightened of him. Eventually, he put some white powder in a can of bundy and coke and told the complainant to drink it. Because of her fear of the appellant, the complainant did so. The appellant admitted that the powder was methylamphetamine. This conduct was the subject of count 1, namely, supplying a quantity of methylamphetamine to another.

5 When they reached Kalgoorlie the other woman was dropped off. The appellant and the complainant then travelled south. In the car the appellant spoke of how easy it would be to kill someone and made comments that frightened the complainant further. She told the appellant that she wanted to go back to her family in Tasmania and he promised that she would be in Melbourne by 5 May.

6 The appellant and the complainant stayed overnight at Denmark. The next morning, when they left, the appellant took with him a doona from the chalet in which they had stayed. That night the appellant parked the vehicle in a remote bush clearing near Broke Inlet. He pulled out a knife and waved it around, telling the complainant that he was going to "slash up". Eventually he put the knife under the driver's seat. He got out of the car, walked around to the passenger's side and told the complainant to turn the interior light off. She did not. He opened the door, sat next to

her and commenced winding the seat back. The complainant was terrified and commenced crying. The appellant told her to shut up. He pulled up her t-shirt and touched her breasts. She told him to stop but he did not. This act constituted the offence of indecent assault, the subject of count 2.

7 The appellant went to the boot of his vehicle and took out the doona and some tablets which were purple in colour and hexagonal in shape. These were established to be stupefying drugs known as doxepin. He put the tablets in the complainant's mouth and made her swallow them. This act constituted the offence the subject of count 3, which was administering stupefying drugs with intent to commit indecent assault.

8 The appellant then took the complainant's clothes off. She was crying and asked him to stop but he refused. As he took her clothes off he touched her breasts again. This act constituted the offence of indecent assault, the subject of count 4.

9 The appellant pushed the complainant's legs apart and inserted a finger or fingers into her vagina. This act constituted the offence of sexual penetration, the subject of count 6. The complainant felt sick from the drugs that she had swallowed and could not remember what then occurred during the rest of that night.

10 The next memory the complainant has is of waking up the following morning in the motor vehicle which was parked in a different place. She had no clothes on. The appellant was naked from the waist down. The appellant drove on to Esperance. He told the complainant that he was sorry and that what had happened should not have happened. She told him that she wanted to go home and he said that he would take her home. He also said that he would put her on a flight home. Later, however, he took her bag and told her that he was doing this so that she would have no money and could not run away. They reached Esperance and stayed overnight at a motel. The complainant telephoned a friend while the appellant was away and told him to collect her from the airport when she arrived in Tasmania. She tried to telephone her mother but could not get through.

11 The next day the appellant drove towards Kalgoorlie. He drove along a dirt track and told the complainant that even if he went to jail it would only be for six years "and then I would get out and I would hunt your family down and kill them".

12 Eventually the appellant stopped the car on a dirt track off the Lake King Road. He went to the complainant's side of the vehicle and told the complainant that he wanted to "have" her. He wound the seat back and told the complainant that she was "stupid because it had all been planned". He terrified her further by telling her that the police would not be able to do anything if he killed her and then killed himself. The appellant lifted up the complainant's t-shirt and touched her breasts. This act constituted the offence of indecent assault, the subject of count 8.

13 The appellant then cut a piece of tape from a roll of strapping tape that he had purchased in Esperance. He took the doona, some doxepin tablets and a dressing gown cord from the boot of the vehicle. He put the cord around the complainant's head to cover her eyes saying "they were too innocent" and were making him feel guilty. He removed the complainant's clothes and placed the tape over her mouth. He put some cream on her vagina and inserted a finger or fingers into it. This act constituted the offence of sexual penetration, the subject of count 9.

14 The appellant then put the doona on the bonnet of the motor vehicle, picked up the complainant and placed her on the doona. He again placed the dressing gown cord around her eyes. When she was on the bonnet of the vehicle he again put a finger or fingers into her vagina. This act constituted the offence of sexual penetration, the subject of count 10.

15 The appellant then told the complainant that she needed to relax. He took some pills from the car, half took the tape off her mouth and put about six or eight doxepin tablets in her mouth. He gave her a drink of ginger beer and made her swallow the tablets. This constituted the offence of administering stupefying drugs with intent to commit indecent assault, the subject of count 11. The complainant felt sick and vomited the tablets up.

16 The appellant let the complainant put her clothes back on and they drove off. He stopped at a roadhouse to put in petrol. The complainant said that she needed to go to the toilet, the appellant walked around the front of the vehicle and she jumped out and ran into the roadhouse where she sought assistance from the proprietors.

17 The appellant drove towards Kalgoorlie and then to the north of the State. He had the complainant's possessions in his vehicle. Near Karratha he threw the possessions away, save for a suitcase. The disposal of the items thrown away and the retention of the suitcase constituted the offence of stealing which was the subject of count 12.

18 According to the first four grounds of appeal, the learned trial Judge erred in admitting into evidence certain hearsay testimony. The evidence on which ground 1 is based was given by Mrs Hansord, the wife of the proprietor of the roadhouse where the complainant escaped from the appellant. She described the demeanour of the complainant as crying and "shaking all over". She stated that her husband told her to ring the police. She was asked whether she did so and replied, "After I asked him - I said, 'what for?' and he said that the young girl had been raped". This reply was plainly hearsay, but no objection was raised by the experienced counsel for the appellant.

19 In Varney v The Queen, unreported; CCA SCt of WA; Library No 960463; 23 August 1996, in reasons (with which Owen J agreed) I said:

"The argument that the trial Judge should ... intervene to disallow evidence tendered without objection is contrary to the principle that the trial Judge should not act in such a way as to take the matter out of the hands of the advocate (see, for example, Government Insurance Office (NSW) v Glasscock 13 NVR 521).

The following remarks with whom Street CJ and Mahoney JA agreed in R v Visser (1983) 3 NSWLR 240 (at 242) are pertinent:

'Where no objection is taken to the evidence at the trial which is claimed to be prejudicial (or, where taken, the objection is withdrawn), an appellant bears a heavy burden of persuading this Court that an occasion arose for the exercise of the trial Judge's discretion, and an even heavier burden of establishing that that discretion was wrongly exercised. It will be a very rare case where a trial Judge is justified in intervening to reject evidence where the accused is represented and where no objection has been taken to it. The duty of a trial Judge to put to the jury any matters upon which the jury, upon the evidence, could find for the accused, whether or not it has been raised by his counsel (Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 118) does not include an obligation to reject evidence to which his counsel has not objected. An objection may deliberately not be taken to inadmissible evidence for a variety of reasons. Quite often, it is because counsel for the accused sees some advantage to his client in not fighting an irrelevant issue in relation to that evidence, even where the evidence may otherwise be prejudicial to his client. An intervention by the trial Judge may sometimes cause more prejudice than the evidence which he intervenes to reject.'

The failure of counsel to object to inadmissible evidence is analogous to the situation that arises when a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instruction. It is well settled that neither of these circumstances will, of itself, attract appellate intervention: R v Birks (1990) 19 NSWLR 677 at 644."

"In my view an obligation on the trial Judge to intervene by refusing to admit evidence arises only when the admission of such evidence would give rise to a substantial miscarriage of justice in accordance with the ordinary test set out in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 (at 514) (namely, the loss of a fair chance of an acquittal) or in accordance with the test referred to in Rabey v The Queen (1980) WAR 44 (at 88) and Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 371-372 (namely, such a departure from the essential requirements of the law that the proceedings are fundamentally flawed). This is consistent with Shaw v The Queen (1952) 85 CLR 365 where it was accepted, implicitly, that the reception of inadmissible evidence where there was a failure of counsel to object could only provide valid grounds for appeal if that reception gave rise to a substantial miscarriage of justice. See also R v Gay [1976] VicRp 59; (1976) VR 577 at 584 and Roissetter (1983) 11 A Crim R 325 at 326-327."

20 In the light of the aforegoing two further matters are of particular relevance in regard to ground 1. Firstly, in cross-examining the witness, counsel for the appellant repeated the hearsay testimony that had been given. The following exchange occurred:

"Mrs Hansord, when your husband brought the girl in you say that he then said, 'quick, ring the police' and he said that she had been raped? --- Yes. They are the words that I can remember that he said."

Secondly, Mr Hansord later testified and gave evidence that confirmed that he had been told by the complainant that she had been raped. This evidence was tendered on the basis that it fell into the category of recent complaint and was thereby admissible. Counsel for the appellant accepted this.

21 In the circumstances, there was, in effect, no prejudice to the appellant in consequence of the hearsay testimony. There is, accordingly, no substance in ground 1.

22 Grounds 2, 3 and 4 essentially relate to evidence by the complainant that can be classified as recent complaint. Counsel for the appellant conceded that the hearsay evidence, the subject of these grounds, was properly admitted on this basis. He also conceded that the trial Judge properly charged the jury in regard to recent complaint. He was then driven to argue that the trial Judge erred in omitting to tell the jury what use they could make of this evidence at the time it was given. He cited no authority for this startling proposition and in my opinion it has no substance whatever. Ordinarily, there is no obligation in a trial Judge to direct the jury, prior to the conclusion of all the evidence in the case, as to the use they are to make of particular pieces of evidence. There were no special circumstances in this case that gave rise to such an obligation. There is no substance to grounds 2, 3 and 4.

"The learned trial Judge erred in law by failing to direct the jury that the evidence of 'complaint' was not admissible in relation to those offences on the indictment that were not of a sexual nature."

24 The offences which were plainly "not of a sexual nature" were counts 1 and 12. Count 1 concerned the supply of methylamphetamine. Count 12 concerned the stealing of the complainant's possessions. None of the evidence of recent complaint (apart from an insignificant reference by counsel for the appellant when cross-examining Mr Hansord) related to counts 1 and 12. Thus, in regard to these counts, the learned trial Judge had no need to instruct the jury as to the use of evidence of recent complaint. Nevertheless, in my opinion, the learned trial Judge was obliged to tell the jury, positively, that none of the evidence of recent complaint could be used in any way in regard to counts 1 and 12. His Honour did not do so. This omission was a misdirection. In my opinion, the omission was entirely without significance. As regards count 1, the appellant conceded that he had supplied methylamphetamine to the complainant; in effect, he had no defence to this count. As regards count 12, the appellant admitted discarding the complainant's personal items save for her suitcase which was found in his possession. The sole issue which remained in regard to this count was the issue of intent. The general evidence of recent complaint had virtually no bearing on this issue and could not have influenced the jury's verdict on this count.

25 Counsel for the appellant submitted that the evidence of recent complaint was not admissible in regard to the counts involving the administration of stupefying drugs. It was an element of both these counts (counts 3 and 11) that the stupefying drugs were administered with intent to commit indecent assault. There was therefore a sexual element involved in both these counts and accordingly they are not covered by ground of appeal 5. In any event, as the stupefying drugs the subject of counts 3 and 11 were administered for the specific purpose of enabling the appellant to commit sexual offences, the evidence of recent complaint was admissible in regard to them: R v Saragozza [1984] VicRp 15; (1984) VR 187 at 199. In the circumstances, it is not necessary to rely on Reppas v The Queen, unreported; CCA SCt of WA; Library No 980711; 9 December 1998.

26 Accordingly, I would dismiss the appeals against conviction. I turn now to the appeals against sentence.

27 The learned trial Judge sentenced the appellant to 1 year's imprisonment for count 1, 3 years for count 2, 12 years for count 3, 3 years for count 4, 10 years for count 6, 3 years for count 8, 10 years for count 9, 10 years for count 10, 12 years for count 11 and 1 year for count 12. His Honour was of the opinion that an "appropriate effective term for these offences would be 14 years' imprisonment". To achieve this, he had regard to the fact that some of the offences "while separate offences, were committed as part of a series of incidents". For this reason, his Honour grouped counts 2, 3, 4 and 6 together and counts 8, 9 10 and 11 together. He concluded that it would be appropriate for the terms of imprisonment imposed in relation to counts 2, 3, 4 and 6 to be served concurrently, and also for the terms of imprisonment imposed in relation to counts 8, 9 10 and 11 to be served concurrently. He ordered both groups of sentences to be served concurrently with each other. In other words, the effective term of 12 years' imprisonment for counts 2, 3, 4 and 6 was ordered to be served concurrently with the effective term of 12 years' imprisonment for counts 8, 9, 10 and 11. Finally, so as to arrive at an overall term of 14 years' imprisonment, the learned Judge ordered that the sentences of one year each for counts 1 and 12 be served cumulatively with count 3. His Honour determined that it would not be appropriate to make a direction that the appellant be eligible for parole.

28 Finally, his Honour concluded that on the evidence the appellant would be a constant and continuing danger to the community and ordered that the appellant be imprisoned indefinitely.

29 The grounds of appeal against sentence challenged both the aggregate term of 14 years' imprisonment and the order that the appellant be imprisoned indefinitely. According to the grounds of appeal:

"1. ... [T]he sentences imposed on counts 6, 9 and 10 (sexual penetration without consent) were manifestly excessive ...

2. ...[T]he sentences imposed on counts 3 and 11 (administering a stupefying drug with intent to commit an indictable offence) were manifestly excessive ...

3. ... [T]he total sentence imposed was manifestly excessive ..."

It was accepted that ground 3 related particularly to the order that the appellant be imprisoned indefinitely, and the appeal was argued on this basis.

30 The maximum sentence for the three counts of digital sexual penetration was 14 years' imprisonment. But this was not a case which falls into the common category of digital penetration. The offences of which the appellant was found guilty comprise a planned series of sexual assaults and other sexual offences over a period of at least a number of days. The applicant was 49 years of age when he committed them. His victim was a 16 year old girl who had innocently and unwittingly placed herself, in effect, under his protection and care by going with him in his vehicle as his driver. He subjected her to a series of horrifying, humiliating and degrading experiences. He ignored her pleas to desist and took extreme measures to ensure that she was available to his will. He terrified her by displaying the knife and by speaking of killing and other frightening things. He perpetrated the offences in lonely and deserted country areas. He taped the complainant's mouth and, in effect, blindfolded her. All this was not enough. He still had to dull her senses by administering the stupefying drugs. She was fortunate indeed to escape from the appellant's clutches. The appalling treatment meted out, the period over which the ordeal occurred, the callousness of the appellant's conduct, the degree of planning involved, and the physical and psychological harm to the victim, place the appellant's offences in the very worst category. Whatever I have said so far applies not only to the offences of sexual penetration but to those relating to the administration of the stupefying drugs. These offences were all bound up together. The criminal conduct involved was linked. In my view the learned Judge was entirely correct in his approach and in the sentences he imposed. I do not think they were excessive at all. I would dismiss the first two grounds of appeal against sentence.

31 I turn now to the order that the appellant be imprisoned indefinitely. In Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998 Murray J (with whom Walsh and Wallwork JJ agreed) observed that:

"[a] ground of appeal which complains that, having regard to matters which would ordinarily inform the question of the appropriate length of a prison sentence, the order for indefinite imprisonment was 'excessive', is misconceived.

An appropriate ground might be concerned with the question whether the pre-condition of danger to society was established on the balance of probabilities, or whether in some other way the court erred in the exercise of the discretion to order the offender to be imprisoned indefinitely."

I shall proceed on the basis that the ground of appeal fell into the category of what Murray J termed "[a]n appropriate ground".

32 In Jones v The Queen, Murray J said in regard to the imposition of an indefinite sentence:

"What is relevant is the likelihood or probability of danger to the whole or part of society arising from the court's satisfaction that upon release, after service of the nominal sentence, there is a risk that the offender will commit other indictable offences."

His Honour noted that the power to imprison an offender indefinitely is of an exceptional character and it followed that:

"The probability of danger would need to be demonstrated by clear evidence of the risk that the offender will commit further offences upon release."

"are themself to be of a degree of seriousness in that they are to be indictable offences."

"In my view, s98(3)A [of the Sentencing Act] is directed towards making it clear that in deciding whether, upon the ground of danger to society, an indeterminate sentence should be imposed in addition to a finite term or aggregate of finite terms, the court is not bound to consider whether the final outcome of the exercise of that discretion by the making of an order for indefinite imprisonment would still provide a sentencing disposition which is proportionate to the gravity of the crime or crimes committed, whereas that will continue to be a primary consideration in respect of fixing what the section describes as the nominal sentence. The sub-section is designed to make it clear that the indefinite imprisonment operating cumulatively upon the service of the nominal sentence is to be imposed expressly as a form of preventive detention against the risk of the commission of serious offences in the future, justified only by the satisfaction of the sentencing court that it is probably the case that the nature of that danger to society, or a part of it, is of sufficient gravity to require that further protection."

33 The circumstances under which an indefinite sentence might be passed were also considered by this Court in Lowndes (1997) 95 A Crim R 516. Reference was made to the offender's antecedents as represented by his character and past history, including the history of offending, and the prognosis required by s 89(2)(d) of the Sentencing Act 1995. It was emphasised that the Act requires the sentencing Judge to prognosticate as to circumstances which may be relevant to the offender at the time when he or she would be eligible for release.

34 The learned sentencing Judge in the present case pointed out that the appellant had a number of convictions for offences of a sexual nature. His Honour stated:

"In 1973 you were convicted of having had carnal knowledge of a girl under the age of 16 years and for that offence you were sentenced to 4 months' imprisonment. More significantly in December 1988 you were convicted of two offences; one of sexual assault and one of aggravated sexual assault. Both assaults were constituted by sexual penetration for those offences you were sentenced to a total of 10 years' imprisonment without the option of parole."

The appellant was released from prison in August 1995 in respect of the last mentioned offences referred to by the learned sentencing Judge. Therefore, he committed the offences the subject of this appeal approximately eight months after being released from prison in regard to the previous offences.

35 The offences committed in 1988 involved two female complainants. The first was induced to accompany the appellant in his car by a stratagem similar to that offered to the complainant in the present case. He offered her a job as his driver. He told her to drive through the Dwellingup bush area. He stopped the car on a pretext and the woman was subjected to penile intercourse after the appellant put a knife to her throat. The second offence committed in 1988 occurred while the appellant was on bail in respect of the charge for the first offence. Again, the complainant in question was induced to accompany the appellant by being offered a job as his driver at a high salary. It is not necessary to go into any detail in regard to this offence save to state that the offence involved digital penetration of the complainant's vagina in terrifying circumstances involving violence and threats of further violence.

36 The learned sentencing Judge who imposed the order that the appellant be imprisoned indefinitely had careful regard to pre-sentence and psychological reports which he obtained. His Honour said in this regard:

"You were tentatively assessed as suitable to participate in the intensive sex offender treatment programme. This assessment was proffered with extreme caution. The author of the pre-sentence report assessed you as presenting an extremely high risk of re-offending without the benefit of treatment and concludes that your attitude and behaviour in the past strongly suggests that your suitability for treatment to be minimal. I note that the psychiatrist who prepared the psychiatric report concluded that you continued to lack remorse for the offences committed by you.

Further, the psychiatrist concluded that although you had expressed a wish to undergo a sex offender treatment programme your willingness to undergo such a programme was motivated by a deception by you that such a willingness would work in your favour in relation to how you are dealt with for these offences. In the result the psychiatrist concluded that you are highly likely to re-offend in the future. It is the case, Mr Klavins, that during your trial I did not detect any remorse whatsoever on your part for what you did to this young girl."

37 The learned sentencing Judge's remarks as a whole demonstrate that in ordering the appellant to be imprisoned indefinitely his Honour paid appropriate regard to all the relevant considerations required by the Sentencing Act and referred to in Lowndes and Jones v The Queen. His Honour was of the opinion that on reviewing all the material before him it was probable that when the appellant would "otherwise be released from custody" in respect of the terms of imprisonment imposed on him, he "will continue to be a constant and continuing danger to the members of the community". The learned sentencing Judge concluded that there was a risk of the appellant committing offences of a serious nature in the future when he would otherwise be released from custody. In my opinion, his Honour was entirely justified in coming to this conclusion.

38 In my opinion, the third ground of appeal cannot be sustained. I would dismiss the application for leave to appeal against sentence.

39 WALLWORK J: I agree with the reasons for judgment of Ipp J. There is nothing I wish to add.

40 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Ipp J. I agree with them and with his Honour's conclusions. I have nothing to add.