Court of Appeal (WA)|2017-02-24|Before: Mr J, Buss P, Mazza JA, Mitchell JA

KND -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 36 (24 February 2017)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KND -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 36

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Appellant convicted on his pleas of guilty of six counts of sexual offending against an incapable person - Appellant convicted after a trial on one count and acquitted on two counts of sexual offending against the incapable person - Whether the verdict of guilty at the trial was factually inconsistent and incompatible with the verdicts of acquittal

Criminal law - Appeal against sentence - Appellant sentenced to 5 years 6 months' imprisonment for the count on which he was convicted after trial - Manifest excess - Appellant sentenced to a total effective sentence of 8 years 6 months' imprisonment - Totality principle

Criminal Code (WA), s 330(1)(b), s 330(2), s 330(7)(a)

Bennell v The State of Western Australia [2011] WASCA 174

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

MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348

NCH v The State of Western Australia [2013] WASCA 29

Riley v The State of Western Australia [2007] WASCA 22

SJN v The State of Western Australia [2016] WASCA 215

Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319

Tapper v The State of Western Australia [2016] WASCA 140

WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

Williams v The State of Western Australia [2015] WASCA 110

1 BUSS P: The appellant has applied for leave to appeal against conviction and sentence.

3 Each of counts 1, 2, 3, 4, 5 and 6 alleged that, on a date unknown between 31 December 1993 and 17 June 1997, at a Perth suburb, the appellant sexually penetrated M, who he then knew or ought to have known was an incapable person, by penetrating her vagina with his penis, contrary to s 330(2) of the Criminal Code (WA) (the Code). Each of the offences alleged in those counts was said to have occurred on a different day within the specified period.

4 Count 7 alleged that on a date unknown between 21 April 2002 and 6 June 2002, at a Perth suburb, the appellant sexually penetrated M, who he then knew or ought to have known was an incapable person, by penetrating her vagina with his penis, contrary to s 330(2) of the Code.

5 Count 8 alleged that on a date unknown between 1 January 2012 and 31 December 2012, at a Western Australian country town, the appellant sexually penetrated M, who he then knew or ought to have known was an incapable person, by penetrating her vagina with his penis, contrary to s 330(2) of the Code.

6 Count 9 as amended alleged that on a date unknown between 1 June 2011 and 30 June 2011, at a Perth suburb, the appellant sexually penetrated M, who he then knew or ought to have known was an incapable person, by penetrating her vagina with his finger, contrary to s 330(2) of the Code.

7 The appellant pleaded guilty to counts 1, 2, 3, 4, 5 and 6 and not guilty to the remaining counts.

8 On 12 June 2015, after a trial in the District Court before Herron DCJ and a jury, the appellant was convicted on count 7 and acquitted on counts 8 and 9.

9 His Honour imposed individual sentences of immediate imprisonment as follows:

(a) for each of counts 1, 2, 3, 4, 5 and 6: 3 years; and

10 The trial judge ordered that the sentence for count 1 be served cumulatively on the sentence for count 7 and that the sentences for each of the other counts be served concurrently with each other and concurrently with count 7. The total effective sentence was therefore 8 years 6 months' imprisonment. The total effective sentence was backdated to 8 June 2015, when the appellant was taken into custody for the offences. A parole eligibility order was made.

The agreed facts and circumstances of counts 1, 2, 3, 4, 5 and 6

11 The facts and circumstances of counts 1, 2, 3, 4, 5 and 6 were placed before the jury in the form of a statement of agreed facts.

12 The statement, as read aloud by the prosecutor at the trial, was as follows:

The complainant, [M], born 19 January 1973, has an acquired brain injury, as a result of contracting encephalitis as an infant. The accused, born 28 September 1952, was, at the time of the commission of these offences, in an intimate personal relationship with the complainant's mother, [H], now deceased.

On 16 May 2013, the complainant was assessed by Dr Phil Watts, associate professor in clinical psychology, as being an incapable person, under section 330 of the Criminal Code.

Between 31 December 1993 and 17 June 1997, the complainant was living with her mother at [a Perth suburb], with her mother being her primary carer. The accused then lived at [a Perth suburb] but spent the majority of his time in company with the complainant and her family.

On six separate occasions between those dates, the accused engaged in penile vaginal intercourse with the complainant at his home address. The accused ought to have known, at that time, that the complainant was so mentally impaired as to be incapable of guarding herself against sexual exploitation.

This resulted in the complainant falling pregnant and giving birth to a child, [K], on 16 June 1997. The complainant's mother did not report the matter to the police and raised the child, until [the complainant's mother] died, in October 2002.

Shortly after that, the accused sued for custody of the child, which was granted in June 2003. In supporting evidence, the accused swore by affidavit that [he had] had penile vaginal intercourse with the complainant six times prior to conception of the child.

A police investigation into this matter commenced in February 2013, after the complainant made allegations concerning the conduct of the accused at the complainant's home during a recent visit to those premises by [K] and the accused (ts 246 - 247).

The State's case at trial in relation to count 7

13 The State alleged that count 7 occurred on a date unknown between 21 April 2002 and 6 June 2002. During that period, the complainant's mother was in hospital. The mother died in October 2002.

14 The complainant said in a video-recorded interview that during the period pleaded in count 7 the appellant was living in a caravan (VROI 33). The complainant's mother had requested the appellant to look after the appellant and the complainant's son while the mother was in hospital (VROI 33). The complainant said that on an occasion when she was in her bedroom listening to music, the appellant 'barged' into her room, pushed her onto the bed and had sex with her (VROI 34). The appellant made a hole in the bedroom door with his knee as he entered the room (VROI 34, 38). At the time their son, K, was at a friend's house (VROI 40). The incident ended when K returned home (VROI 40). The complainant said the appellant had sex with her 'lots of times' while her mother was in hospital (VROI 34, 37 - 40).

15 During cross-examination, the complainant said she was in her room playing music when the appellant threw her onto the bed, pulled her pants down and had sex with her (ts 102 - 103). She had been 'dancing to her music' (ts 103). The appellant opened the bedroom door with his hand (ts 103). The complainant then referred to an occasion when the appellant had chased her in the kitchen (ts 103). She had run to her room and he had made a hole in the bedroom door (ts 103). The complainant agreed that she had not mentioned, in her video-recorded interview, having been chased in the kitchen (ts 107). She explained that at the time she had a lot on her mind (ts 107). The complainant gave evidence that during the incident, the appellant had said 'your fanny's mine' and he had 'got a kid to you and [he] can do the hell what he wants' (ts 110). She agreed that she had not mentioned the appellant's comments during her video-recorded interview (ts 110).

The complainant's evidence as to uncharged acts

16 The complainant described an incident, not the subject of a charge, which occurred during the period pleaded in count 7. She said the appellant woke her by shining a torch on her vagina. He then had sex with her (VROI 5, 36 - 37; ts 94, 102, 111 - 113).

17 The complainant also described another incident, not the subject of a charge, which happened when her sister-in-law visited Australia in June 2011. The sister-in-law is now married to the complainant's brother. At the time they were girlfriend and boyfriend. The complainant said the sister-in-law visited the appellant's home for the purpose of meeting their son, K. The appellant wanted to have sex with the complainant and attempted to pull her towards a shed (VROI 15, 17 - 19, 28 - 29; ts 121 - 124).

The State's case at trial in relation to count 8

18 Count 8 was alleged to have occurred on a date unknown between 1 January 2012 and 31 December 2012.

19 The complainant said, in her video-recorded interview, that the appellant had sex with her in a shed on his property. Her brother had brought her to the appellant's property for the purpose of visiting her son, K. The complainant's initial account of the incident was that the appellant pushed her against the shed and had sex with her. Initially, it appeared she was asserting that this incident occurred during the visit by her sister-in-law in June 2011, but later it became apparent that they were separate incidents (VROI 18). The complainant said the appellant 'pushed her down', removed her knickers and had sex with her. She was wearing a skirt (VROI 16). The complainant said she pushed the appellant away and she was bleeding (VROI 16). She explained that the appellant had pushed her against the 'wooden thing' near the chicken yard and the incident happened in a shed where the appellant 'kills pigs' (VROI 16, 20 - 21).

20 During cross-examination, the complainant said that when she returned to her home she disposed of her knickers (ts 132). She confirmed that the incident had occurred inside a shed, and that the appellant had told her that he had previously 'hung up' cows in the shed. She had never seen pigs on the property (ts 128 - 130).

21 During cross-examination, the complainant also said the appellant called to her as she walked past the shed. He pushed her backwards and she fell to the ground. The appellant placed her on some wood and had sex with her (ts 131). The complainant said she was wearing 'loose shorts', but then indicated she thought she was wearing shorts but could not remember (ts 131). She said she had noticed bleeding while she was at the appellant's property, but she had forgotten to mention that fact at the interview (ts 132, 138). At the interview the complainant said that when she returned home from the appellant's property she noticed bleeding (VROI 18).

The State's case at trial in relation to count 9

22 Count 9 as amended concerned an alleged digital penetration by the appellant of the complainant's vagina on a date unknown between 1 June 2011 and 30 June 2011. During her video-recorded interview, the complainant said the appellant had arrived at her home with their son, K, when her brother was not present. The appellant pushed her against a wall in the dining room and inserted his fingers into her vagina. During cross-examination, she explained that the appellant's father remained in the car while the appellant brought K's bags into the house (ts 143). She said the appellant committed the offence while K went outside to speak with the appellant's father (ts 143). She agreed that she did not scream during the commission of the offence and she could not explain why she had not done so (ts 145). The complainant said the offending ceased when K returned to the house (ts 145).

23 On 4 September 2013, the appellant participated in a video-recorded interview with police. The video of the interview was played at the trial and tendered as part of the State's case.

24 The appellant did not give evidence in his own defence at the trial.

25 At the trial, defence counsel made a formal admission on the appellant's behalf pursuant to s 32 of the Evidence Act 1906 (WA). The admission was that between 31 December 1993 and 31 January 2013 the appellant ought to have known that the complainant was an incapable person, within s 330(1)(b) of the Code, and a person who was so mentally impaired as to be incapable of guarding herself against sexual exploitation (ts 248).

26 The appellant's case at trial, as explained by defence counsel, was that the appellant had never had sex with the complainant and had never touched her in a sexual manner after their son, K, was born in 1997 (ts 82). The appellant denied having sexually penetrated the complainant as alleged in counts 7, 8 and 9. According to defence counsel, the appellant made statements to that effect in his video-recorded interview with police (ts 82). The sole issue at the trial was whether the State could prove beyond reasonable doubt that the appellant had sexually penetrated the complainant as alleged (ts 82).

27 The State called the complainant's brother as a witness. He gave evidence as to the complainant's family circumstances. The brother said he assisted the complainant by taking her to the appellant's property to visit K. He confirmed that there was an occasion when he also took his wife and the complainant to the appellant's property (ts 188). The brother also gave evidence as to the circumstances of an occasion when he took K to Adventure World. They went to Adventure World on the day after count 9 was alleged to have been committed. The brother confirmed that K had arrived at the complainant's house on a Thursday. The brother had intended to be present but he was not there because he had been detained at work (ts 189). He said the complainant had purchased a fan and, when he arrived home from work that evening, the fan had already been assembled (ts 190). The brother also gave evidence that in early February 2013 the complainant told him that the appellant had come into her house, assembled the fan and pushed her against a wall while he attempted to pull her pants down and rub her vagina (ts 191). That evidence was admitted as evidence of recent complaint. The brother said he confronted the appellant in a telephone conversation about the incident at the complainant's home. Initially, the appellant denied having gone into the house. The appellant then said he only went into the house to assemble the fan and he did not touch the complainant. Later, the appellant said he had pushed the complainant, but he had done so because she persistently asked him for money (ts 192, 194 - 196). During cross-examination, the brother said he did not see the complainant exhibiting signs of distress either on the day of his visit with his wife to the appellant's property or on the day when count 9 was alleged to have happened (ts 206 - 207).

28 Defence counsel called K as a witness. K said, in effect, that it would have been impossible for the appellant to have committed counts 8 and 9 in addition to the uncharged act which the complainant said had happened while she was visiting the appellant's property. As to the visit on the occasion of the uncharged act, K said he was in his bedroom playing video games and that the complainant and her brother's wife were present. He said the appellant and the complainant were never alone together while the complainant was visiting the appellant's property (ts 259, 280). As to K's visit to the complainant's house, which coincided with the alleged occurrence of count 9, K said he remained in the lounge room throughout the visit, the appellant was in his company throughout the visit and only the complainant left the lounge room during the visit (ts 260, 269, 275 - 276).

Appeal against conviction: the ground of appeal

30 The ground alleges that the verdict of guilty on count 7 was 'inconsistent with' the acquittals on counts 8 and 9.

31 On 10 April 2016, Mazza JA ordered that the application for leave to appeal be referred to the hearing of the appeal.

Appeal against conviction: the appellant's submissions

32 Counsel for the appellant submitted that the facts and circumstances of count 7 were not 'so markedly different' from those of counts 8 and 9 'to justify the conviction entered [on count 7], other than that it may have reflected a compromise by the jury'.

33 It was argued that the verdict of guilty on count 7 is unsafe, having regard to the acquittals on counts 8 and 9, because 'the jury must have entertained a reasonable doubt in relation to the complainant's testimony'.

34 According to counsel for the appellant, there was no 'forensic evidence' that distinguished the conviction on count 7 from the acquittals on counts 8 and 9. The jury must have found 'the complainant's testimony [to be] unreliable on some matters', and it was therefore 'not open [to the jury] to conclude beyond reasonable doubt that [the appellant was guilty on] count 7'.

Appeal against conviction: the ground of appeal: its merits

35 In Riley v The State of Western Australia [2007] WASCA 22 [16] - [25], I examined the relevant decisions of the High Court on inconsistent verdicts. It is unnecessary to reproduce my review of the cases.

36 In the present case, the appellant alleges that the jury's verdicts were factually inconsistent and incompatible. It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense. The critical issue is whether it was logically and reasonably open to the jury to acquit on two counts and convict on the other.

37 A jury is, of course, entitled to accept part, but not all, of a witness's version of events. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA); NCH v The State of Western Australia [2013] WASCA 29 [129] (Buss JA, Martin CJ & Mazza JA agreeing).

(a) Where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others.

(b) Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted [130].

39 In the present case, the trial judge directed the jury in his summing up, as follows:

(a) The jury must deal with each count separately and make a decision on each count separately (ts 323).

(b) When dealing with a count, the jury must consider only the evidence that is relevant to that count (ts 323).

(c) The jury was entitled to accept all of a witness's evidence, to accept some of a witness's evidence or none of a witness's evidence. The jury was entitled to accept part of a witness's evidence and reject other parts of that witness's evidence (ts 321 - 322).

(d) The jury could not find an issue against the appellant if what he said during his video-recorded interview with police about that issue gave rise to a reasonable doubt upon the issue (ts 325).

(e) His Honour gave the jury orthodox directions about propensity and relationship evidence (ts 337 - 340).

(f) The jury's verdicts did not have to be the same on each count (ts 323).

(g) If the jury found the appellant guilty of one count, it did not follow that he was guilty of any other count (ts 323).

(h) The jury could not find the appellant guilty of an offence with which he had been charged unless the evidence satisfied the jury beyond reasonable doubt that he had committed that offence (ts 323).

(i) Having considered all of the evidence, the jury may find the appellant guilty of all charges, or it may find him not guilty of all charges, or it may find him guilty of some and not guilty of others. Those were matters for the jury to determine on the evidence that was relevant to each charge (ts 323).

(j) The appellant was presumed to be innocent. The burden of proving the appellant's guilt was on the State. The State must prove each of the charges beyond reasonable doubt. If the jury had a reasonable doubt as to whether the appellant was guilty or not guilty of a charge then the jury must find him not guilty (ts 324).

(k) The jury could not find the appellant guilty of an offence with which he had been charged unless the jury was satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the complainant's evidence (ts 349).

(l) The jury should scrutinise all of the complainant's evidence with special care because of the crucial nature of her evidence and because of the seriousness of the allegations she made (ts 349).

(m) His Honour gave the jury directions in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 (ts 349 - 351). His Honour reiterated that the jury must be satisfied beyond reasonable doubt about the truthfulness, accuracy and reliability of the complainant's evidence before the jury could convict the appellant on any of the charges (ts 351).

40 Defence counsel did not seek a further direction or a redirection on any matter in his Honour's summing up. No complaint is made in the appeal about any of his Honour's directions.

41 Plainly, the truthfulness, accuracy and reliability of the complainant's evidence was critical to the State's case on all of the counts. That is a common feature of criminal trials involving alleged sex offending against a child or an incapable person. The trial judge highlighted in his summing up the critical importance of the complainant's evidence. He emphasised that the jury must be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of her evidence, in relation to the incident the subject of the count which the jury was considering, before it could convict the appellant on that count.

42 All of the facts and circumstances of the case must be taken into account in considering the ground of appeal. An inability to identify precisely a single factor or a combination of factors which explains affirmatively why the jury acquitted on counts 8 and 9 and convicted on count 7 does not necessarily impugn the integrity of the conviction.

43 I am satisfied that the verdicts of the jury on counts 7, 8 and 9 can properly be reconciled.

44 First, although the events in support of counts 8 and 9 were significantly more recent than the events in support of count 7, the complainant's evidence in relation to counts 8 and 9 (but not count 7) was directly contradicted by the evidence of her son, K. It would have been necessary for the jury to have rejected K's directly contradicting evidence before the jury could have convicted the appellant on counts 8 and 9. The jury would have been bound to have acquitted (as they did) on counts 8 and 9 if K's evidence raised a reasonable doubt about the accuracy or reliability of the complainant's evidence on those counts. The jury was entitled to take the view that K's evidence in relation to counts 8 and 9 was reinforced by the absence of any evidence from the complainant's brother as to any signs of distress in the complainant's demeanour or behaviour at relevant times, especially in relation to count 9.

45 Secondly, the jury was entitled, in evaluating the complainant's evidence, to have regard to her level of intellectual functioning and, also, to the appellant's admission, by his pleas of guilty on counts 1, 2, 3, 4, 5 and 6, that he had previously had a sexual interest in the complainant and had acted on that interest by committing those earlier offences. The guilty pleas, and the agreed facts in support of them, established that between 1994 and 1997 the appellant had sexual intercourse with the complainant on six occasions. The complainant became pregnant and gave birth to their son, K. The complainant's mother became aware of the offending, as a result of the complainant's pregnancy, and consequently the appellant lost the opportunity of continuing to offend sexually against the complainant. The appellant's offending against the complainant between 1994 and 1997 was significantly more proximate to the events in support of count 7 (which occurred in 2002) than the events in support of counts 8 and 9 (which allegedly occurred in 2012 and 2011 respectively). In the circumstances, the appellant's admission that he had previously had a sexual interest in the complainant and that he had acted on that interest between 1994 and 1997 made the complainant's account of the events the subject of count 7 more credible.

46 Thirdly, it is true that count 9 was the only charge in relation to which evidence of recent complaint was left to the jury. However, that evidence did not, in the circumstances, add materially to the State's case. The complainant's video-recorded interview indicated her reluctance to disclose the appellant's offending to her family. She initially made disclosure to a person, 'Tracy', only because she feared that she was pregnant (VROI 25 - 27). Tracy then informed the complainant's family of what had been happening between the appellant and the complainant and that, in turn, resulted in the making of the recent complaint.

47 Fourthly, in 2002, when the complainant's mother became terminally ill, the mother asked the appellant to return to the complainant's home and care for the complainant and K. The appellant was then in a position to resume sexual relations with the complainant as he had done between 1994 and 1997. On the complainant's evidence, that is what the appellant did. In the absence of independent evidence contradicting the complainant's account of count 7, and having seen and heard her give evidence, the jury was entitled to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of her account. By contrast with counts 8 and 9, there was no evidence contradicting the complainant's account in relation to count 7, apart from the appellant's denial in his video-recorded interview with police. The jury was entitled to reject that denial.

48 I am satisfied, on my examination of the trial record, that the jury's decision to acquit on counts 8 and 9 did not relevantly undermine the complainant's truthfulness, accuracy and reliability in relation to count 7, and does not indicate that the verdict of guilty on count 7 is inconsistent or incompatible, in the relevant sense, with the other verdicts. The differences in the verdicts are not illogical or an affront to common sense.

49 Further, the differences in the verdicts are capable of explanation on the basis that the jury was cautious and conscientious in reviewing the evidence and discharging its heavy civic responsibility. In addition, the jury may well have taken a 'merciful' view of the facts and circumstances of counts 8 and 9, that being a function which has always been open to, and often exercised by, juries. See MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 - 368 (Gaudron, Gummow & Kirby JJ).

51 The ground of appeal against conviction does not have a reasonable prospect of success. I would refuse leave to appeal. The appeal must be dismissed.

Appeal against sentence: the trial judge's sentencing remarks

52 I have already recounted the agreed facts and circumstances of counts 1, 2, 3, 4, 5 and 6.

53 As to count 7, the trial judge found that the appellant had entered the complainant's bedroom while she was playing music, forced her onto her bed, held her down, removed her underwear and had sexual intercourse with her. At the time no one else was in the house (ts 383).

54 The trial judge reduced by 10%, pursuant to s 9AA of the Sentencing Act 1995 (WA), the head sentence he would otherwise have imposed on each of counts 1, 2, 3, 4, 5 and 6 (ts 392). This recognised the benefits to the State, the complainant and any other witnesses resulting from each plea of guilty. The appellant did not enter the pleas until the first day of his trial (ts 382).

55 The appellant was born in 1952. He was aged 62 at the time of sentencing.

56 Prior to 2003, the appellant was in full-time employment. In 2003, he resigned his employment to enable him to care for his mother who was seriously ill. The appellant was her full-time carer until she died in February 2012 (ts 388).

57 In 2003, the appellant was awarded custody of his son, K. Since then, the appellant has been responsible for K's upbringing. K was aged 18 when the appellant was sentenced (ts 388).

58 Prior to being remanded in custody on 8 June 2015, the appellant was his father's full-time carer. The father suffers from Alzheimer's disease (ts 388 - 389).

59 The appellant was married briefly in his early twenties. He was then involved in a long-term relationship before commencing the relationship with the complainant's mother (ts 389).

60 The appellant has a relatively minor prior criminal record. In any event, the offences are old. In 1990 he was convicted and fined for possessing an unlicensed firearm. In 1991 he was convicted and fined for cultivating cannabis with intent to sell or supply and possession of cannabis with intent to sell or supply. The appellant is generally in good health, apart from long-standing back pain (ts 389).

61 Although the appellant pleaded guilty to counts 1, 2, 3, 4, 5 and 6, he continues to deny his guilt in relation to count 7 (ts 389).

62 His Honour found that, apart from the pleas of guilty, there were few mitigating factors (ts 388).

63 The appellant had displayed little or no remorse for his actions and had sought to blame the complainant for the offending (ts 389). For example, the appellant told the author of a pre-sentence report that the complainant had 'acted provocatively' towards him (ts 390).

64 In the absence of appropriate psychological testing, it was difficult to assess the appellant's risk of reoffending in a similar manner (ts 390).

65 The trial judge characterised the appellant's offending as 'towards the upper range for this type of offending' (ts 391).

66 His Honour identified a number of aggravating factors:

(a) The complainant, who was born in 1973, had a significant intellectual impairment. She had a full-scale IQ of 65. She had difficulty with multiple tasks, an impaired memory and learning ability, poor organisational and planning skills, limited ability to manage her finances and limited capacity to make reasoned and informed decisions on her own. The complainant's capacity to give consent to a sexual relationship was very limited. She was not able to guard herself against sexual exploitation (ts 387, 390).

(b) The appellant's relationship with the complainant was akin to a familial relationship. He was in a position of power or ascendancy over her (ts 388).

(c) Although his offending was opportunistic, the appellant offended against the complainant on multiple occasions over a period of about 8 1/2 years (ts 388).

(d) The appellant's offending resulted in the complainant's pregnancy. She was unable to care for her child, K, due to her significant intellectual impairment, and the appellant obtained custody of K (ts 383).

67 His Honour also identified some other aggravating factors in relation to count 7:

(a) The offence constituted an especially serious breach of trust. The complainant's mother had asked the appellant, and the appellant had agreed, to care for the complainant and K while the mother was being treated for cancer in hospital. The appellant assured the mother that he would not reoffend against the complainant while he was caring for her and their son (ts 384).

(b) The appellant knew, as was the fact, that it was unlikely the complainant would report any reoffending against her. The appellant took advantage of that circumstance (ts 384).

(c) The appellant knew, as was the fact, that the complainant was physically and mentally vulnerable, and would be unable to resist his sexual abuse (ts 384 - 385).

(d) The complainant was, to a significant extent, under the appellant's care. Although that aggravating circumstance had not been charged in the indictment, and the higher maximum penalty in s 330(7)(b) of the Code therefore did not apply, the fact that the complainant was, to a significant extent, under the appellant's care nevertheless aggravated the seriousness of the offending with which he was charged (s 7(3)(b) of the Sentencing Act) (ts 386).

(e) The offending was committed in the complainant's bedroom, being a place where she was entitled to expect privacy (ts 386).

(f) The appellant used a degree of force in order to commit the offence (ts 384). That is, count 7 was committed without the complainant's consent in fact.

(g) The complainant was distressed by the offending and it has had a traumatic impact upon her (ts 386).

Appeal against sentence: the grounds of appeal

69 Ground 1 alleges that the sentence of 5 years 6 months' imprisonment for count 7 was manifestly excessive.

70 Ground 2 alleges that the total effective sentence of 8 years 6 months' imprisonment infringed the first limb of the totality principle.

71 On 10 April 2016, Mazza JA referred the application for leave to appeal on those grounds to the hearing of the appeal.

Appeal against sentence: the merits of ground 1

72 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

73 The maximum penalty for the offence of sexually penetrating a person who the offender knows or ought to know is an incapable person, contrary to s 330(2) of the Code, is, relevantly, 14 years' imprisonment. See s 330(7)(a) of the Code.

74 Relevant general sentencing principles are set out in Tapper v The State of Western Australia [2016] WASCA 140 [49] - [50], [59] - [61]. It is unnecessary to expatiate on them. See also Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] - [55]; R v Kilic [2016] HCA 48; (2016) 91 ALJR 131 [22].

75 There is no tariff for sex offending (including, in particular, offending against s 330 of the Code) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.

76 A significant feature of s 330 of the Code is the protection it affords to a class of people who, by virtue of mental impairment, are vulnerable to sexual exploitation and may be unable to understand the nature of sexual activity or protect themselves from those who wish to take advantage of their vulnerability. The potential adverse consequences to a victim of an offence under s 330 are very serious. See Bennell v The State of Western Australia [2011] WASCA 174 [38] - [39].

77 The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect incapable people.

78 The only occasion on which this court has considered sentences imposed for offending against s 330 of the Code is Bennell. However, some limited additional assistance, in determining the appropriate sentencing range open to the trial judge, may be gained from a consideration of the general sentencing practice in relation to the offence of sexual penetration without consent, contrary to s 325(1) of the Code. The maximum penalty for an offence against s 325(1) is 14 years' imprisonment.

(b) the sentencing outcomes in a number of cases of offending against s 325(1) of the Code, including SJN v The State of Western Australia [2016] WASCA 215 and the decisions referred to in that case; and

80 In my opinion, the appellant's offending on count 7 was very serious. That is plain from my summary of the facts and circumstances of the offending and from the trial judge's unchallenged findings of fact and sentencing remarks generally. The appellant was, of course, entitled to proceed to trial on count 7. However, he was unable to claim the mitigation that a plea of guilty would have brought. He did not evince any remorse or victim empathy in relation to count 7.

81 After considering the sentence of 5 years 6 months' imprisonment imposed for count 7 in the context of all relevant facts and circumstances and all relevant sentencing factors, and after taking into account:

(b) the objective facts and circumstances of the offending;

(d) the aggravating factors, referred to by his Honour, which are relevant to count 7;

I am satisfied that the sentence for count 7 was within the range open to his Honour on a proper exercise of his discretion.

82 In my opinion, the length of the term of imprisonment imposed for count 7 was not unreasonable or plainly unjust.

84 Ground 2 asserts that the total effective sentence of 8 years 6 months' imprisonment infringed the first limb of the totality principle.

85 The nature and content of the first limb of the totality principle and other relevant sentencing principles are set out in Williams v The State of Western Australia [2015] WASCA 110 [47] - [51]. It is unnecessary to repeat them.

86 The appellant's offending in relation to counts 1, 2, 3, 4, 5 and 6 (as well as count 7) was very serious. The fact that the complainant became pregnant as a result of the offending was an especially egregious feature.

87 I am satisfied that it was necessary for the trial judge to order that the sentence for count 1 (3 years' imprisonment) be served cumulatively upon the sentence for count 7 (5 years 6 months' imprisonment) in order properly to mark the very serious character of the appellant's overall offending in the context of all relevant sentencing factors.

88 In my opinion, after taking into account the maximum penalty for each of the offences; the facts and circumstances of the offending viewed as a whole; the relevant general sentencing pattern; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the appellant's personal circumstances; and all other sentencing factors (including mitigating factors), the total effective sentence of 8 years 6 months' imprisonment was within the range open to the trial judge on a proper exercise of his discretion.

89 The total effective sentence bears a proper relationship to the overall criminality involved in the appellant's offending, viewed in its entirety, and after having regard to all relevant facts and circumstances and all relevant sentencing factors. Error should not be inferred from the sentencing outcome.

91 Neither of the grounds of the appeal against sentence has a reasonable prospect of success. Leave to appeal should be refused on each ground. The appeal must be dismissed.

KND -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 36 (24 February 2017)

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Judgment (148 paragraphs)

KND -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 36 (24 February 2017)

Cases Cited (6)