Court of Appeal (WA)|2005-09-23|Before: Smith JA

Re The State of Western Australia; Ex Parte Garrett [2005] WASCA 192 (23 September 2005)

RE THE STATE OF WESTERN AUSTRALIA; EX PARTE GARRETT [2005] WASCA 192 (23 September 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE THE STATE OF WESTERN AUSTRALIA; EX PARTE GARRETT [2005] WASCA 192

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - 2 1/2 years out of time - Application for extension of time - Whether applicant aware of accusations before pleading guilty - Whether applicant sufficiently aware of facts of offences - Dispute about facts alleged - Whether reasonable prospects of success - Turns on own facts

1 ROBERTS-SMITH JA: This is an application for leave to appeal against conviction. It is years out of time. The applicant appeared before Macknay DCJ in the District Court at Perth on 16 September 2002 charged on an indictment with 22 counts.

2 The first 13 counts related to offences committed on 5 and 6 July 2002 in respect of the complainant, who was an 8-year-old boy at Shoalwater. They consisted of one offence of detention with intent to gain a benefit, one of showing offensive material to a child under 16 years with intent to commit a crime, one of procuring a child under 13 years to do an indecent act, five offences of indecently recording a child under 13 years by taking an indecent photograph, two offences of indecent dealing and three offences of sexual penetration. Count 14 related to the earlier theft of a bicycle which the applicant subsequently gave to the complainant.

3 The remaining eight counts alleged in each instance an offence of indecently recording a child between 13 and 16 years of age by taking an indecent photograph on various dates between June 1999 and May 2001 at either Bunbury or Shoalwater.

4 To all those offences the applicant pleaded guilty. He was represented at the time by counsel Mr R D Young. On 2 October 2002 he was sentenced to a total of 11 years' imprisonment backdated to 6 July 2002. An order was made that he be eligible for parole.

5 An appeal notice was filed on 8 July 2005, some two-and-a-half years out of time. He seeks an extension of time. His grounds of appeal are as follows:

"(1) I did not see the complainant's statement until after the trial, therefore, I was not aware of the accusations against me.

(2) My lawyer advised me that I was not accused of rape, when in fact the complainant did accuse me of this act.

(3) The complainant, in his statement to police dated 6/7/02, states that I put my penis in his bottom, however, I was not charged with rape. If the complainant's statement in relation to the rape was not believed, I do not understand why the rest of his statement was believed."

6 A delay prior to the filing of an application for leave to appeal must be satisfactorily explained. Furthermore, an extension of time after such a delay would be granted only in exceptional circumstances. The onus is on the applicant to show special and substantial reasons why the extension should not be granted. It would be necessary to demonstrate the appeal would be most likely to succeed and that there would be a miscarriage of justice if the extension were not granted.

7 I refer to the facts briefly. These were facts as recounted by his Honour and which, as he observed, were not denied by the applicant. After school on Friday, 5 July 2002 the complainant, who lived with his parents in a suburb adjacent to Shoalwater, was at home but left the house after an argument with his mother. He walked to nearby bushland near Lake Richmond where he was followed into the bush by the applicant.

8 The applicant then befriended the complainant and later enticed him to return to the applicant's unit at Shoalwater where he detained the complainant with the intention of utilising him for sexual gratification. That detention was the subject of count 1.

9 Whilst in the bedroom of his unit the applicant had the complainant watch a pornographic video which conduct constituted count 2. He then performed fellatio on the complainant for about five minutes, that being the subject of count 3. He licked the complainant's anus and inserted his tongue inside his anus and continued to do so notwithstanding requests from the complainant that he stop. That constituted count 4.

10 The complainant remained with the applicant overnight and in the course of the night the applicant masturbated the complainant with his hand, that being the subject of count 5. At the same time he made the complainant masturbate him until the applicant ejaculated, and that was the subject of count 6.

11 Later he masturbated on top of the complainant's naked stomach, that being count 7, after which he washed the complainant's stomach by giving him a shower. Further conduct of that kind occurred on several occasions during the night, such not being the subject of any further charge.

12 As his Honour recounted it, on occasions the applicant placed butter on both his own and the complainant's penis to assist in lubricating the penis while masturbating.

13 During the night he also digitally penetrated the complainant's anus with three fingers, moving them around for a short period of time, that being the subject of count 8. On the following morning he had the complainant shower and on his return to bed the applicant again masturbated him and had the complainant masturbate him to ejaculation on his stomach. That conduct was not the subject of any charge. During that time the applicant took five Polaroid photographs of the complainant in sexually explicit positions whilst naked. Those photographs were the subject of counts 9 to 13 inclusive. In exchange for the photographs the applicant gave the complainant a boys bicycle and helmet. The complainant, who it appears had been posted by then as a missing person with the police, was located riding the bicycle on the streets of Shoalwater about 3 pm on Saturday, 6 July wearing an adult's jacket and shirt but without any pants or underwear.

14 The bicycle had earlier been stolen by the applicant at a place where it had been left unattended. That was the subject of count 14. On Saturday, 6 July police officers executed a search warrant at the applicant's unit and in addition to the photographs of the complainant, found a further nine Polaroid photographs of young naked boys aged between 13 and 16 years with erect penises and lying on top of a bed.

15 The conduct involved in obtaining those photographs was the subject of counts 15 to 22 inclusive. The applicant admitted to the police officers that he had taken the photographs for his own sexual gratification and had the boy in each case pose in return for cash. When spoken to about that conduct which was the subject of counts 1 to 13 inclusive, being the detention of the 8-year-old complainant on 5 and 6 July, he said that he was not able to recall the conduct and must have experienced an alcoholic blackout, although he did not deny the offences.

16 For present purposes it is not necessary to refer to the various other matters which were put to his Honour that day and which he took into account in his sentencing remarks.

17 The applicant expanded on his grounds of appeal in his submissions to me from the Bar table and also in a letter headed "Reasons for Appeal" which had previously been forwarded to the Court in support of his application.

18 That, I think, encapsulates the submissions generally which he put before me and which he would put on the appeal:

"Before pleading guilty on October 2, 2002, I was not given the chance to read the victim's statement. If so, I would have put him in the witness stand to tell the jury in person the details of how I sodomised him and put my whole hand in his bottom. Also many other critical details such as my supposedly doing sexual acts all night as he freely told the police while comfortably sitting in a chair and not from a hospital bed. A jury would have to suspect much of his story when faced with medical evidence proving this impossible after hearing a doctor's statement and being made aware of my physical and emotional state at that time.

My body would have seriously injured him and I simply could not have done so much that night on top of the exhaustion I was already feeling the evening of Friday 5 July. I was also ordered to undertake a psychiatric assessment before a court hearing which was never done.

My solicitor, Robert Young, simply told me that the victim's statement was 'unavailable' even up to the day of sentencing.

At the time I was, and still am, an emotional wreck. At the time I strongly believed I would be dead from AIDS in a year or two so I could not see the point of a long court case for nothing anyway. I fully believed when I asked, that no mention had been made of me actually raping the boy: 'Only your fingers' I was told. If I had even done that I felt I deserved to be in gaol for the time it took me to die. I believe that I did take awful photos, but I now do not believe everything else I do remember being charged with. I assumed all this happened the same evening I blacked out or the next morning. Definitely NOT all night. Several times I have 'lost' about 36 hours - eg going to sleep at 9 am on a Sunday morning and waking at 8.37 the next night, being a Monday. In a blackout I usually sleep all the period of it, not gain abnormal prowess. I think someone else was involved because [M] says 'someone' tore his clothes. He doesn't specifically name me! Plus he seemed to be getting all over Rockingham that night with someone. I think he mentions going to the beach at some stage. If I had 'kidnapped' this boy I certainly wouldn't be walking around town with him. His statement is simply too inconsistent all the way through. He says he went to several houses and changes that to only mine. It seems he did watch a porno movie and then accused me of doing everything he saw in it to him, unaware this was not possible. If he had simply stated what did in fact happen, and not needlessly add fancy stories of sexual stuff, the statement may be credible. Because I told the police I had no recollection of the night I believe I was nicely loaded with things I didn't do. I'm glad I wasn't in New York on September 11, 2001.

The Judge obviously regarded me highly suspect after reading [M's] story and was in a bad mind-set, even though I was never charged with raping him. Just the fact that [M] said I did these things seriously tainted the real story, which most certainly was not a whole night of depravity with a boy. I was damned by [M's] statement and did not know it. My only prior record of this sort of thing was when I never even touched a teenage boy; over 17 years ago. That is why I only received about a 2 month sentence. I have no record of violence or ill-treatment against anyone. I got myself out of an Autistic school when I was about 9 and again at age 35 (mental hospital).

All my life I have tried to make my life better even while slowly drinking myself to death because of unresolved issues in the past. I most certainly NEVER want to be alone with a kid again, so I can't be accused of anything.

I have always pleaded guilty when I have been caught doing wrong. This time I made a terrible mistake by assuming I had. I did not have a chance to properly defend myself by pleading guilty this time."

19 Ground 1 cannot be sustained. Whether or not the applicant actually saw the statement of the complainant is not something I can determine from the material on the District Court file nor from what is otherwise before me. He says from the Bar table and his letter that he did not see a copy of the complainant's statement until recently.

20 Whether that be so or not, it is clear he was fully apprised of the content of the statement and the allegations against him. That is apparent from what his counsel put to the Judge, from a handwritten letter from the applicant to the Judge and from what he told the Community Corrections officer who prepared the pre-sentence report and what he told the psychologist who prepared the psychological report. In the pre-sentence report, for example, the author writes as follows:

"Garrett states he agrees with the Statement of Material Facts, however, his responses indicate he has minimised his guilt as his explanation of the offences vary from actually describing specific details of the offences to making vague comments claiming he did not remember the offences as he had 'blacked out' in an alcohol induced stupor. He repeated several times that 'I must have done it.' When questioned further Garrett was able to provide specific details. In regards to the charge of sexual penetration, Garrett responded to this direct question of whether he committed the offence in a crude perhaps defensive manner stating, 'If you think I screwed him, impossible, as an elephant can't screw an ant,' and then replied, 'I might have put my fingers up him but not my dick.'"

"Garrett explained his offences by describing himself as 'being a classic Peter Pan' and stated that, 'I can't have my own kids so I use other people's.' Garrett also appears to have no adult associates and indicated he is attracted to associating with children. On another occasion he reported he did not recall the offences, stating, 'One moment I was pissed playing pool and then woke up.' It appeared Garrett attempted to avoid specific discussion of the offences however, he did confirm numerous details of the offences such as stealing the bike and giving it to the victim, owning the camera and taking the photographs in which the photos of the three unidentified boys were taken and committing similar sexual acts against them. He states the offences against the boys in the photographs occurred in the Bunbury area but he would not go into details about these offences. He also admitted to showing the victim the pornographic tape at his house. Garrett also described details of how the police were searching the bushland where he had been camping out near where he had accosted the victim. He made a comment that he was relieved when the police found the boy alive. The author was unable to get any further information from Garrett regarding the current offences or other possible offences."

22 In the psychological report, the author writes as follows:

"Commission of offences took place between 5 and 6 July 2002 in Shoalwater. Mr Garrett indicated that he has no memory of the offences and has no idea how he met the victim and how the subsequent offences happened. He stated that prior to the offence, he had caught a bus to the Rockingham shopping centre, having a drunk a cask of wine that morning. He went to the shopping centre to withdraw some cash from the bank as well as to purchase more alcohol. He also stated on that particular day he had missed the bus he normally would catch and therefore caught a second bus that stops a few streets away from the unit he resides in at Shoalwater. He indicated that he believed the offences would have occurred from this point forward. When asked whether he believes to have committed the offence he indicated that he must have done, since photographs taken of the victim clearly depict the victim in his house.

According to the Statement of Material Facts, after meeting the young victim and befriending him, Mr Garrett took the 8-year-old to his place of residence. While detaining him, Mr Garrett performed a number of sexual acts such as masturbating both himself and the victim, performing fellatio on the victim, inserting his tongue and fingers into the victim's anus as well as showing the victim pornographic material. The victim was found some time in the afternoon of the next day (Saturday, 6 July) riding the stolen bike that Mr Garrett had given him.

At interview Mr Garrett indicated that the offences were serious and displayed some insight into the effects of the offences for the victim. He however flatly denied that he could have sexually penetrated an 8-year old boy, stating that 'it's an impossible act'. He appeared to have little understanding of digital penetration or incomplete penile penetration.

In regards to other photographs which were found in his unit, Mr Garrett indicated that boys were attracted to him rather than the reverse, as may have been suggested to him previously. He admitted to giving money and cigarettes to young boys in order to have them take their clothing off and take photographs but displayed little insight into how those incentives would have attracted the young boys. According to the Statement of Material Facts, Mr Garrett has refused to reveal the names of the boys depicted in these photographs. Initially he denied using those photographs to sexually stimulate himself, however throughout the interview he indicated that he would now and again use the photographs in order to masturbate and reach orgasm."

23 Quite apart from the fact of his pleas of guilty and what was said in Court and by the Community Corrections officer and the psychologist in discussion with him, there can be no argument the applicant was not aware of the accusations against him until after the hearing. The pleas of guilty are formal admissions of each essential element of each offence and no more. Nonetheless, counsel clearly had instructions from the applicant who maintained he had no recollection of what he had done because of his state of intoxication and alcoholic blackout. In those circumstances there was little counsel could say about the facts.

24 Ground 2 likewise has no substance. The accounts given by the complainant did describe incidents of non-consensual sex. However, lack of consent was not an issue in the case. The applicant was not charged with rape nor any other sexual offence of which lack of consent was an element. If the applicant's lawyer did advise the applicant that he was not charged with rape, his lawyer was right.

25 Ground 3 must likewise inevitably fail. In his statement made 6 July 2002, the then 8-year-old complainant to whom I have referred as M described in ways one would expect of a child of that age a range of sexual offences committed upon him by the applicant. They included, for example, answer 76:

"We were lying down and this morning we had a shower together and washed ourselves and we come out and started playing and that's it."

26 He said they started playing after the showers. He was laying down with Jason on Jason's bed. He said first of all, when he was asked what happened, that nothing had. Asked again he said, "I was being sexy," and when asked to describe what he meant said, "We were being naked," Jason having taken his clothes off. They were playing with their private parts. He was playing with Jason's private parts, shaking it and wriggling it, and Jason was playing with his.

27 Later on he described the use of butter. Further on again he spoke of watching what he described as a rude video and then started doing what was on the rude video. "Then we had a shower and in the morning," he said, "we started being sexy again." Asked what rude things they had done that were on the video he said sucking their private parts and sucking their bum.

28 Later on he spoke of putting their private parts together with their hands and playing with each other's private parts. He was asked whether anything came out of his private parts and he said: "The golden shower ... It's what comes out of your private part and you put it on somebody else's body."

29 Asked whether it was the same or a different colour from wee he said, "It's different, it's gold like we have." He said that Jason washed it off each time. Later on again he described Jason touching him on the bum, inside his bum, and then he was asked, "Did he touch you inside your bum with his hand or something else?" He said, "Hand." "When you say inside your bum, what do you mean?" "I mean inside." He said that happened four times. Asked how it felt he said it hurt very much. He told Jason but he wouldn't listen.

30 A few minutes later, again on the same point, he was asked how he knew he was touched inside his bum. He said because he knew it:

"Was it his hand or a finger?---Whole hand.

So he had his whole hand inside your bottom?---Yes.

Did his whole hand fit in your bottom?---Yeah, it did.

How?---I don't know.

Did he put anything else other than his hand in your bottom?---Yes.

What else did he use?---His private part"

31 That, of course, is the particular aspect of which the applicant now complains. However, the following day when further interviewed, the complainant repeated a number of these allegations and in relation to the hand inside the bottom allegation about which he was asked again he repeated that the applicant put his hand, his whole hand, inside his bottom. Asked, "Up to where?" the transcript records his answer to question 73 "(Puts three fingers up, holding them together) The whole hand, it hurt."

32 There are aspects which appear to be possible exaggerations but the precise details were not relied upon by the prosecution. What was relied on was the essential substance of the nature of the applicant's conduct in relation to the complainant. Apart from what appear to be exaggerations or hyperbole what is said which appears to be improbable, if not impossible, may well be simply the product of the lack of communication facility of an 8-year-old boy talking about something otherwise totally outside his experience and which he obviously did not fully understand.

33 That of course does not mean the essential account he gave was not true. There are several things obviously to be said about the statement that the applicant put his "whole hand" into M's anus. The first is that that is not what the child actually demonstrated. He held up three fingers. He was referring to an act of digital penetration. Secondly, that specific allegation was not put to his Honour as one relied upon by the Crown. Third, there is no basis for saying that the child's statement as such was not believed and, fourth and finally, the essential elements of the offences charged, as I have said, were admitted and sufficiently proved by the applicant's pleas of guilty.

34 As none of the applicant's grounds have any prospects of success there is no merit in the application for the extension of time and the application is dismissed.

Re The State of Western Australia; Ex Parte Garrett [2005] WASCA 192 (23 September 2005)

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Re The State of Western Australia; Ex Parte Garrett [2005] WASCA 192 (23 September 2005)

RE THE STATE OF WESTERN AUSTRALIA; EX PARTE GARRETT [2005] WASCA 192 (23 September 2005)