Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law - Evidence - Whether verdict unreasonable and against weight of evidence - Whether offence took place within time­frame set in indictment

Criminal law and procedure - Sentencing - Totality principle - turns on own facts

Application for leave to appeal against other sentences dismissed

Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100

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

B v The Queen [2002] WASCA 236

Bishop v The Queen [2003] WASCA 79

Carter v The Queen [2003] WASCA 159

H v The Queen, unreported; CCA SCt of WA; Library No 930275; 19 May 1993

LSC v The Queen [2003] WASCA 303

Morley v The Queen [2001] WASCA 49

Morris v The Queen [1987] HCA 46; (1987) 163 CLR 447

Podirsky v The Queen (1990) 3 WAR 128

Shepherdson, unreported; CCA SCt of WA; Library No 930401; 29 July 1993

Stickland v The Queen [2002] WASCA 339

Trescuri [1999] WASCA 172

Woods v The Queen (1994) 14 WAR 341

1 MALCOLM CJ: In my opinion, the appeal against conviction in respect of counts 16, 17 and 18 on the indictment should be allowed and the convictions quashed. I have reached this conclusion for the reasons to be published by Pullin JA. I also agree with the conclusion in the comment by Roberts-Smith JA.

2 So far as the application for leave to appeal against sentence is concerned, I would refuse leave to appeal for the reasons to be published by Pullin JA.

3 ROBERTS-SMITH JA: I have had the benefit of reading and agree with the reasons and conclusions of Pullin JA, both as to conviction and sentence.

4 The problem with the date of the offences alleged in counts 16, 17 and 18 is not a mere pedantic point. The offences were charged as offences under s 324B and 324D of the Criminal Code. The former was an offence of unlawful indecent assault with a statutory maximum penalty of 4 years' imprisonment. The latter was an offence of sexual penetration without consent, with a statutory maximum penalty of 14 years imprisonment. The timeframe specified in those counts was 25 April 1991 to 1 August 1992. It was alleged the offences occurred on the same occasion but on a date unknown during that period. The commencement date was that on which the appellant moved into the particular unit. The end date was nominated because s 324B and s 324D were repealed by the Acts Amendment (Sexual Offences) Act 1992 (WA), (No 14 of 1992) ("the Amending Act") on that date. The Amending Act inserted a new s 323, creating an offence of unlawful and indecent assault, with a statutory maximum penalty on indictment of 5 years' imprisonment; a new s 324 creating an offence of aggravated unlawful and indecent assault with a statutory maximum of 7 years' imprisonment and a new s 325 creating an offence of sexual penetration without consent, with a statutory maximum of 14 years imprisonment. The new s 325 was in exactly the same terms as the repealed s 324D, although the Amending Act also introduced a new s 326, which created an offence of aggravated sexual penetration without consent, with a maximum penalty of 20 years' imprisonment.

5 After the appellant gave his evidence at trial, but before the witness Reed was called, the State conceded that it was bound strictly by the dates alleged in these counts, such that the jury could not convict unless satisfied beyond reasonable doubt the offences occurred between those dates. The Judge directed the jury accordingly.

6 The concession was apparently made on the basis of the decision of the Court of Criminal Appeal of this State in Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100.

7 There the appellant had been convicted of six counts of unlawful and indecent dealing with her step-daughter, a child under the age of 13 years and four counts of sexual penetration of her step-daughter, being a child under the age of 16 years. The relevant sections of the Criminal Code had been amended in various respects at certain points within the periods specified in a number of the counts. Quashing the convictions, the Court held that each of the particular counts alleged two separate and distinct statutory offences, notwithstanding that in the case of some of them the basic elements of each of the offences alleged were the same and that, in others, the offence was constituted by the same conduct rendering an offender liable to the same punishment. Each of the counts was accordingly bad for duplicity. Furthermore, the convictions were uncertain because there was no way of determining which of the possible offences the appellant had been convicted. The Court held that where alternative charges are laid to take account of the fact that the time within which the offence was alleged to have occurred spans a period during which the legislation creating the offence was replaced by new legislation, an accused is entitled to an acquittal on both offences if the prosecution is unable to prove whether the offence occurred before or after the date the legislation was changed.

8 It is unnecessary to consider the application of the law as explained in Kailis, to the instant case, because of the concession made by the State at trial and the direction given by the Judge to the jury in accordance with it. The jury must be taken to have acted on the direction given by his Honour and so the convictions must necessarily be founded upon findings that the offences occurred between the dates alleged on the indictment. For the reasons explained by Pullin JA, the evidence did not enable such findings to be made beyond reasonable doubt and the convictions must therefore be quashed.

9 PULLIN JA: On 12 May 2004 the appellant was convicted of 15 counts of gross indecency, two counts of administering a stupefying drug in order to commit an offence, one count of attempted sexual penetration and two counts of indecent assault. The offences were committed in the period 1985 and 1992 upon two young male victims.

10 The appellant appeals against conviction and seeks leave to appeal against sentence.

11 This ground concerns the conviction on counts 16, 17 and 18. The original counts were counts of sexual penetration (count 16) and two counts of indecent assault. On count 16 he was found guilty of attempted penetration.

12 The ground of appeal is that the verdict was unreasonable and against the weight of evidence. The indictment alleged that the offence occurred between 25 April 1991 and 1 August 1992. The first date is the date when the appellant moved into his unit at 1/60 Wattle Street, Tuart Hill having previously lived at 32 Wattle Street. The second date, 1 August 1992 is the date when the sections under which the appellant was charged in relation to these three counts were repealed. There is no doubt that if the offences were committed they were committed after 25 April 1991. The issue is whether they were committed before 1 August 1992.

13 The complainant gave evidence that he turned 20 on 13 January 1991 and that around that time the appellant, who had committed other offences on him when he was a boy, made contact with him. The complainant said that the appellant told him that he had moved address and wanted to show the complainant his new house and new spa bath. The complainant says that the appellant picked him up in North Perth and drove him to the new unit at 1/60 Wattle Street. The complainant said that the offences occurred at that address in the spa bath in the courtyard of the unit.

14 The defence case was that the offences did not occur, that there was no spa bath at 1/60 Wattle Street in 1992 and that the complainant had not been to that address.

15 During cross-examination of the complainant the following exchange occurred:

"EDWARDS, MR: The proposition I want to put to you this, simply, that there was no spa bath there in the year 1991?

BLAXELL DCJ: The second unit.

EDWARDS, MR: The second unit in 1991?---You'd be mistaken but maybe, like I said, I was 21, that would make it 1992, so - - -

What are you saying now? Could be 1991?---What I'm saying is that I said I was 20, 21.

Yes?---And that would make it 91 or 92.

What about 93?---Don't know.

Could it have been 93?---Don't think so.

If we then go in the same vein to the next statement, which is the one dated 22 October 2002?---It's there.

If you go to page 5 of that statement, the last paragraph which is marked 22 where you said this, on page 13 in paragraph 76, which is the one we were just talking about?---Mm'hm.

I said that Sherwood had the same spa at his new address as at 32 to 34 Wattle Street?

I now know that it was not the same spa as I remember Peter taking me to his unit at number 60 for the purpose of showing me his new spa?"

---Yep.

What I would suggest to you - put to you, that there was no spa bath ever at Wattle Street?---You're wrong.

And that the spa didn't arrive at 60 Wattle Street until 1993?---You may be right about that but you're wrong about - then the spa was in Wattle Street.

So you've gone from saying that it happened in 1988 originally?---Okay.

Saying it happened in 1991 and now it could have been 92 or 93. Is that right?---I'm not talking about a spa bath, I'm more concerned of, sort of , the abuse that occurred, remembering such, sort of, other facts is quite difficult (indistinct)

If you go on with that same statement onto the next page. You are there putting the dates in context, are you not?

Crossed out plane and put bus ticket?---Yes. It was the bus.

To get me back and promised me that if I stayed at his place at 32 or 34 Wattle Street he would pay for my enrolment at Stuart [sic] Hill College?

---Tuart Hill College.

Yes?---Correct.

---That's correct.

And so you've got there that you came back in 1990?---Yes.

And that you've pointed out that in one of the latest statements, the previous one to this one, you said that the spa incident happened in 1991?---It definitely happened in his house in number 60, yes.

Did you say that it had to happen in 1991 because you were told that he didn't move into 60 Wattle Street until 1991?---No.

By any of the detectives?---No. Like I said, I knew this man quite well. I knew that he lived at that house when I was 19, when I moved to Tuart College, and obviously my birthday's in January and I came back in January, probably started school at the end of January, February. Was there for a week and then didn't see much of him again, and my life was quite riddled with drug abuse and stuff so later dates and times are quite difficult to remember, but yeah."

16 The appellant points to this evidence as revealing uncertainty on the part of the complainant about when the offence occurred and whether there was a spa bath at 1/60 Wattle Street in the period alleged in the indictment.

17 The appellant gave evidence in his own defence. He denied that the offences occurred and gave evidence that the spa was not installed until January 1993. He denied that the complainant ever visited him at 1/60 Wattle Street. He tendered a photograph showing a gas meter on the heater attached to the spa bath with a date on it of 8 January 1993. In cross-examination the appellant conceded that the complainant had correctly described the address of the unit, its location in relation to the unit he had earlier occupied in the same street, and had correctly described the location of the spa bath.

18 The appellant also called a Desmond Bailey who gave evidence that he worked with the appellant at the Perth Traffic Branch in 1991 and 1992. He said that he helped the appellant move into the unit and recalled discussing with the appellant his plans to install a spa bath. He said that this conversation was sometime after the appellant moved into 1/60 Wattle Street, but he could not be more specific about the time. The conversation occurred before Mr Bailey ceased working at the Traffic Branch in January 1992.

19 Anthony Reed was called by the appellant. He was a friend. He was a gas fitter and he gave evidence that he visited the unit 1/60 Wattle Street in 1992 about half a dozen times and there was no spa bath there in that year. He said that after the spa was installed he was asked to look at it because the appellant was worried about how much gas it was going to use in filling the spa with hot water. He said that he "believed" that the spa was installed in 1993. He also gave evidence that the photograph showed that the year of manufacture of the gas hot water system was 1993. He also gave evidence that there was an older hot water system attached to the spa.

20 Clearly a verdict of guilty could not be reached unless the jury concluded that the spa was installed and operational before 1 August 1992. If the jury concluded that the offence occurred but concluded that the spa was not installed until 1993 or was left in reasonable doubt about whether it was in the unit between 25 April 1991 and 1 August 1992, a verdict of not guilty had to be returned.

21 An appellate court should not set aside a jury's verdict if the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question, the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. See M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

22 The complainant was not able to identify precisely when the incident occurred. He was quite uncertain about it. What he said was that it was when he was 20 or 21. The difficulty with that evidence is that part of the year in which he was 21 fell within the period alleged in the indictment and part fell outside it and after it. He also gave evidence that the appellant said that he wanted to show him his "new" unit and his spa. The reference to the "new" unit leaves one to speculate about whether it was inside or outside the relevant period. It is consistent with the prosecution case that the offences occurred within the relevant period. However, that evidence is also consistent with evidence of the appellant that the spa was not installed until 1993 because there is no reason why the appellant might not still be describing this as his "new" unit to the complainant in 1993 if the complainant had not been there since the appellant shifted in. The evidence of Mr Reed is that the spa was not installed in 1992. The evidence of the appellant's workmate, Mr Bailey, was not decisive. His evidence related to the date when the pamphlets for spa were obtained by the appellant and shown to Mr Bailey. The fact that he had the pamphlets in 1991 or 1992 does not prove that the spa was installed in 1991 or 1992.

23 In those circumstances, the question is whether it was open to the jury to be satisfied beyond a reasonable doubt that the offence did occur before 1 August 1992. In my opinion it was impossible for the jury to do more than speculate about whether the incident occurred before 1 August 1992. There is no evidence which, if taken alone or in combination with other evidence, allows a conclusion to be drawn without a reasonable doubt that the incident occurred before 1 August 1992. That being so, the appeal against conviction on counts 16, 17 and 18 must succeed. The sentences on those counts must also be quashed.

Application for leave to appeal against sentence

24 The aggregate sentence imposed was 9 years and 2 months, which under the "old provisions" was a sentence of 13 years and 9 months. The applicant was made eligible for parole.

25 In view of my conclusion on the conviction appeal, the sentences for counts 16, 17 and 18 must be excluded. The aggregate sentence was then 6 years 8 months, or 10 years under the "old provisions". The applicant contends that such aggregate sentence was excessive because of a failure to properly apply the totality principle. The applicant does not complain about the sentences imposed for each offence.

26 The offences of which he was convicted showed that the applicant engaged in a course of sustained and predatory abuse involving premeditation, the grooming of the complainants by escalating sexual misconduct commencing by exposing them to pornography, the use of alcohol and stupefying substances to overcome any urge on the victim's part to resist sexual advances, the use of threats and intimidation of differing kinds, the selection of boys who were 14 to 15 years of age and the abuse of trust by the appellant who had access to the boys and the opportunity to be alone with them. The applicant concedes that the individual terms imposed for each offence were within appropriate range, but complains of the total sentence. That being so, this Court should only interfere with the sentences if the learned sentencing Judge misapplied the totality principle such that the overall sentence is disproportionate to the overall criminality or has resulted in a sentence which will have a crushing effect.

27 By a process of cumulation and concurrency orders, the total sentence for the offences (excluding counts 16, 17 and 18) reduces to 6 years 8 months. His Honour did this by making the sentences for counts 1, 2, 3, 4, 6, 7, 8, 9, 13 and 14 concurrent with each other (a total of 3 years 4 months) and making the sentences for counts 19-26 concurrent with each other (a total of 3 years 4 months), the latter being cumulative on the first total of 3 years 4 months. In my opinion there is nothing in the applicant's submissions which shows in any respect that the learned sentencing Judge misapplied the totality principle or that the sentence is crushing. The three most important factors were that two of the offences involved the use of stupefying substances, that the applicant employed threats and intimidation and the fact that his Honour could find no mitigating factors. The existence of these three factors meant that the aggregate sentence had to be substantial to reflect the overall criminality of the offences. The sentences imposed are well within a sound sentencing discretion.

28 I would dismiss the application for leave to appeal against sentence.

• Appeal against conviction
• Application for leave to appeal against sentence