"VIM" -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 233 (2 December 2005)

"VIM" -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 233 (2 December 2005) - WASCA 2005 case summary — Zoe

[210]

" ... I remember it being a regular occurrence, that it was something that was going on all the time.

What do you mean, it was going - what's 'it'? What sort of contact are we talking about?---Him trying to touch me at any available moment it seemed. If mum was taking showers, he'd try and touch me, touch my breast, try and kiss me on my lips. There were times when mum would be taking showers and I'd be in bed with him in their bed. They'd have the television on, mum would be around at the time. She'd go in and take a shower and he'd try and touch me and try and do things then. I remember lots of times that that would happen, that mum would be taking a shower. I remember feeling uncomfortable about it, but also at the same time it was - it was like, it would just be a frequent occurrence of things. I'd feel under pressure.

You felt under pressure, of what form? How do you mean?---That he was - that he was in control of what was going on. He was in control of what I thought. It was, it was just life, that's what was happening, and I was going along with him doing those things, him trying to make me feel special or important or whatever, so there was mixed emotions of feeling not comfortable about it, but at the same time not wanting to upset him. A lot of the family, and this is going back to very, very early stages, was, you know, mum - you know, 'Go and make him a cup of tea' and 'Go and sit on his knee' and 'Go and' - you know, 'Make sure that', you know, 'that he was happy', that he was happy about taking care of us. That was huge pressure of feeling like, holding this family together, because there was going to be nothing else. I felt like, you know, I loved him because he was my father and he was in our house and my brother; I loved my brother, I loved my mother, and all this time there was also, you know, just feeling under pressure about keeping all of this together. There was definitely a feeling of wanting a happy family, of, like, wanting to feel special, wanting to feel - not wanting to upset that, you know, and that's also - so many reasons about not saying anything to anyone about what was happening in the house because - who were you going to say anything to? Like, how were you going to get out of there and also at the same time thinking, feeling that pressure about keeping that family together, because - and I think for a lot of reasons wanting, you know, wanting a happy family, like wanting - I remember telling friends all the time about how close I was to my, you know, my stepfather, but my father who was in my house now, so much closer to him than my mother, like wanting everybody else to think of it as, you know, a happy family, so on the exterior I was happy to everybody, you know, like I was always trying to make everyone else happy and what - all the other stuff that was going on was either not happening to me, because I block it out of - I'd not try and think about it, but it was - I guess that's how you deal with it at the time. You know, it's like you go along with those things because that's just life ... "

[295]

"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every jury must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman (1987) 44 SASR 591 at 593, and referred to in later cases, eg MacKenzie v R (1996) 190 CLR 348 at 367-8; [1996] HCA 35; 141 ALR 70 at 84: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. "

[376]

"Although trying to work out the dynamics of how the tragic events occurred is really not possible, perhaps the genesis of it can be seen in the evidence of [J]. She said that in the circumstances she was anxious to please you. She craved your attention and affection. Tragically, and for reasons which are really, I would think, unknowable, this turned into the relationship, which was clearly an abusive one. There was no force used. No coercion, or threats or intimidation in any way, and this is on the complainants' evidence - both complainants' evidence.

It would seem that, somehow or another, and perhaps because of the way the relationship commenced, you managed to gain the girls' complete trust, and they became, in effect, and apparently, complicit in keeping the sexual contact and the relationship secret from their mother, and even from each other, and from anyone else in the immediate and in the extended family. In saying this, I am not suggesting in any way that they were to blame or responsible for what happened.

Clearly, at the age of 14, or close to that, or even younger, older, when it involved a stepfather who was in their eyes a charismatic man, larger than life, someone that they loved, and someone whose affection that they sought, they were not in a position to understand or appreciate the significance of what was happening. Once it started, it appears, on their evidence, they did not know how to stop it, or how to control it. In relation to the complainant [L], she described it as not being able to distinguish the love and affection from the sexual contact, and a great deal of confusion that arose as a result of that.

In relation to [J], that seems to have been less of a factor, and she appears to have been significantly controlled by her strong need to keep the family together, and to keep up the appearances. While she says the appearance of, to all exterior analysis, what appeared to be a very close and happy and loving family - while she says that she didn't, her evidence was that she tried avoidance techniques in a variety of ways."

[386]

"It is I consider significant in evaluating the nature and extent of the offending in this case to recall [L's] comments which were made on a number of occasion[s] in the course of cross examination that she did not see [the respondent] as a monster. There were also numerous comments when she was trying to detail the course of the offending when she described the confusion she felt in mixing up the love she felt and the loving relationship she regarded as having with [him] with the sexual relationship and in distilling that she described I think on a number of occasions as saying, wanting the love, but not the sex.

While that doesn't detract from the fact that the serious offences were committed against her and clearly have had a devastating affect [sic], nonetheless they are matters that must be taken into account in attempting to evaluate the nature and extent of the offending and for purposes of comparison to the extent that that is possible with other cases. Although [J's] evidence was perhaps somewhat different in terms of the nature of how the offending commenced and the nature of her relationship with [the respondent], nonetheless many of her comments were also of a similar nature.

Indeed, the fact that the relationship continued albeit until the disclosure within the family in 1995, the nature of the contact and the extent of the contact does throw some light on the nature of the offending in the previous periods. I note that in the High Court decision in the matter of Ibbs (1987) 163 CLR at page 45, although dealing with the offences of a different - falling into a different category the court commented on perhaps - or made what perhaps could be described as the trite observation that crimes bearing the same general description have not equally evil content or characteristic.

I think a little further on the comment is made that the heinousness lies in the facts of the case; not in the statute defining the offence. For those reasons I would not characterise the offending in this case as falling in the worst case category on the scale of criminality and I consider that the circumstances of this case - and when I refer to the circumstances I am relying entirely on the evidence of the complainants. This case can be distinguished from the cases that are described as falling into the category of worst case in offences of this nature."

[395]

I note also that in the psychological report there are comments about the effect on [the respondent's] family, and in particular, on his young son, and I note the comments in the reports, that [the respondent] became very distressed when talking about the impact of these offences on his son. While I accept that the effect on family members, even a child, on the imprisonment of an offender is not a matter that is usually taken into account, it does affect and have impact on my view as to how [the respondent] will cope with a period of imprisonment.

It is clearly going to be made more difficult for him when he is conscious of this stress that his imprisonment and his situation are having on his young son, and what that means is that, together with all of the other factors I have mentioned, operate to mean that any period of imprisonment will be a very difficult ordeal for him. Although these offences are clearly serious and, as I said, require nothing other than an immediate term of imprisonment, there is no indication on the information before me that constitutes any danger, or that there is any real risk of offending upon release.

Although the psychological report referred to the fact that issues of rehabilitation and sex offender treatment programs are not relevant, it is also the case that there is no indication of any other offending since 1989, and there is nothing in the psychological reports or the psychiatric reports that would indicate that there is any danger to the community, which is perhaps not unusual, given the circumstances of these offences. I am satisfied that in the circumstances - and certainly I don't consider there would be any danger or risk of reoffending upon his release from prison.

I am satisfied that in the circumstances of this case the reduction of a period of imprisonment by the imposition of a partly cumulative and partly concurrent sentence is appropriate. It will, in the circumstances of this case, taking into account all of [the respondent's] circumstances, operate as a significant deterrent, and as a significant general deterrent, and I also consider that in the circumstances, it will also operate as an appropriate and effective punishment for him.

Therefore, all of the sentences will be - as I said, in relation to each complaint, all the offences will be concurrent with each other, with the exception of count 34. The sentence of 52 months on count 34 will be served only partly concurrent with the sentence in count 1 of 52 months. It will commence after the expiration of 20 months of the sentence on count 1. This makes a total head sentence, on my calculations, and on my understanding of the provisions of the Sentencing Act, of 72 months, or six years."

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Judgment (509 paragraphs)

"VIM" -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 233 (2 December 2005)

Legislation Cited (5)

Cases Cited (43)