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[AustLII]Supreme Court of Western Australia - Court of Appeal

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DEREK NEIL SMEDLEY v THE QUEEN & ORS [1999] WASCA 1033 ( 23 March 1999 )

Last Updated: 31 January 2001

JURISDICTION : SU P REME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL A P P EAL

CORAM : MALCOLM CJ

KENNEDY J

P IDGEON J

HEARD : 10 FEBRUARY 1999

DELIVERED : 23 MARCH 1999

FILE NO/S : CCA 177 of 1998

BETWEEN : DEREK NEIL SMEDLEY

Applicant

AND

THE QUEEN

Respondent

AND

FILE NO/S : CCA 119 of 1998

BETWEEN : THE QUEEN

Appellant

AND

DEREK NEIL SMEDLEY

Respondent

Catchwords:

Criminal law and procedure - Evidence - Sexual offences - Similar facts - Letter written by accused to complainant - Evidence of similar letters written to complainant's sister who also alleged sexual relationship with accused - Striking similarity - Similar fact evidence admissible as having particular probative force and cogency which outweighed any prejudicial effect - Application for extension of time to appeal against conviction refused

Criminal law and procedure - Sentencing - Applicant convicted of five counts of indecent assault on his stepdaughter aged between 12 and 14 years - Total sentence of imprisonment for 5 years manifestly inadequate - Approach to be adopted when sentencing for more than one offence - Total sentence increased to 9 years - P earce v The Queen (1998) 72 ALJR 1416 at 1423-[45] applied

Representation:

CCA 177 of 1998

Counsel:

Applicant : Mr D McKenna

Respondent : Mr J R McKechnie QC & Mr D T Carlson

Solicitors:

Applicant : Acting Director of Legal Aid

Respondent : State Director of P ublic P rosecutions

CCA 119 of 1998

Counsel:

Appellant : Mr J R McKechnie QC & Mr D T Carlson

Respondent : Mr D McKenna

Solicitors:

Appellant : State Director of P ublic P rosecutions

Respondent : Acting Director of Legal Aid

Case(s) referred to in judgment(s):

Case(s) also cited:

Nil

Library Number : 990146

MALCOLM CJ:

This was an application by the applicant in CCA No 177 of 1998 for an extension of time within which to appeal against conviction. There was also a Crown appeal against sentence.

Appeal Against Conviction

Extension of Tim e

On 17 July 1998 the applicant was convicted after a trial in the District Court on five of six counts in an indictment, na mel y counts (1), (3), (4), (5) and (6). Count (1) alleged that on a date unknown between 1 January 1984 and 31 December 1984 at Heathridge the applicant unlawfully and indecently dealt with the complainant, a girl under the age of 13 years, by placing his hand on her vagina. This offence was contrary to s189(2) of the Criminal Code as it stood at the relevant time. Count (3) was that on a date unknown between 1 January 1985 and 31 March 1986 at Kingsley, the applicant unlawfully and indecently assaulted the complainant by inserting his penis into her vagina. This offence was said to be contrary to s328 of the Criminal Code , as it then stood. Count (4) alleged that on a date unknown between 1 July 1986 and 31 July 1986 at Northam the applicant unlawfully and indecently assaulted the complainant, a girl under the age of 16 years, by fondling her vagina. Count (5) was that on a date unknown between 1 October 1986 and 31 October 1986 at Gnangara the applicant unlawfully and indecently assaulted the complainant, a girl under the age of 16 years, by inserting his penis into her vagina. Count (6) was that on a date unknown between 1 December 1986 and 31 December 1986 at Wanneroo the applicant unlawfully and indecently assaulted the complainant, a girl under the age of 16 years, by fondling her vagina. Each of these last three complaints was of an offence under s324C of the Code as it then stood. Subsequent to his conviction of these offences the applicant was sentenced on 12 August 1998 .

On 1 September 1998 the Crown appealed against the total sentence of imprisonment for 5 years imposed upon the offender by the learned trial Judge. The application for an extension of time within which to make the application for leave to appeal against conviction was filed on 23 November 1998 , just over four months out of time. Following his conviction the applicant had made an application for legal aid to appeal against his conviction. By letter dated 11 August 1998 he was informed that a grant of legal aid had been refused. Shortly afte r r eceiving this advice the applicant became unwell as a result of angina and a suspected heart attack. He was admitted to hospital and put on medication. The applicant was then served with the Crown's notice of appeal against sentence. He promptly applied to Legal Aid for an extension of legal aid and this was granted. In the circumstances, the Crown, quite properly, did not oppose the application for an extension of time which was granted by the Court at the hearing.

Ground of Appeal

The application for leave to appeal against conviction is made on the single ground that:

"The trial Judge erred in the exercise of his discretion to admit or exclude evidence, by admitting the evidence of [one N the complainant's sister]. This erro r r esulted in highly prejudicial evidence being admitted which was of limited probative value.

Given the nature of this evidence, the verdict ( sic verdicts) is ( sic are) unsafe."

Ruling on Evidence of Complainant's Sister

On 15 July 1998 , prior to the jury being empanelled, the learned trial Judge heard a late application by the Crown of its intention to call evidence from N who, like the complainant, was a stepdaughter of the applicant, to which the defence objected. After hearing argument on 14 July 1998 , the learned Judge ruled that the evidence of N was admissible. The learned Judge expressed his reasons for this ruling as follows:

"The purposes for which I think it is admissible and should be admitted are that if it is accepted by the jury it rebuts or helps to rebut propositions put to the police by the accused when he was interviewed by them that the document has an innocent connotation and was in any event given, not to the complainant ... but to some other unspecified person; secondly, that if accepted the evidence confirms or helps to confirm the specific aspects of the evidence of the complainant as to how she came to have the card, who the authorship of it was and what it conveyed and was meant to convey, and in that regard I regard it as evidence equivalent to the evidence of De Vitale and Lejeli in the matte r r eferred to me of the decision of the High Court of Australia in BRS. [ BRS v The Queen (1998) 71 ALJR 1512]. I make that ruling, notwithstanding that I am aware of the differences pointed to by the defence between the position outlined by the complainant ... in her depositions and the statements taken from [N]. Thirdly, as a subsidiary matter - and I am not sure that this evidence is going to be led in any event - it would, if accepted, help rebut any evidence of good character brought by the defence. Having ruled that it is admissible evidence and should be admitted - and I accept that I have a discretion in the latte r r egard - nonetheless I yesterday discussed with counsel the need to narrowly confine the evidence to avoid undue prejudice by way of propensity inferences which might be drawn by the jury and I indicated then, and I confirm now, that I will give appropriate directions along the lines suggested in BRS in summing up to the jury before they are asked to consider their verdicts."

Admissibility of the Similar Fact Evidence

The position was that the applicant had written a series of letters and cards to the complainant which fitted the general description of love-letters for which the applicant, when questioned by police, gave an innocent explanation. As it turned out, N had also been the recipient of similar love-letters and the evidence of those other letters was admitted to rebut the innocent explanation and on the ground that it was similar fact evidence of facts which bore such a striking similarity to the modus operandi of the applicant being relied upon by the Crown that its probative value outweighed any prejudicial effect, provided that the learned trial Judge gave an appropriate direction to the jury.

So far as the third reason expressed by the learned trial Judge is concerned, it was common ground that this was not a valid reason as the applicant had not, at that stage, indicated that character was in issue. In BRS v The Queen (1998) 71 ALJR 1512 the evidence was admitted because the defence had indicated that character was going to be put in issue.

In Hoch v The Queen (1988) 165 CLR 292 at 294, Mason CJ, Wilson and Gaudron JJ said:

"The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. See Dixon J's discussion in Martin v Osborne (1936) 55 CLR 367 at 375. In that same case Evatt J pointed out that it bears that probative value or cogency, not as matter of deductive logic but by reason that it allows for 'admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence': at 385.

Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: see P erry v The Queen (1982) 150 CLR 580 at 586-587, 605 and 610; Sutton v The Queen (1984) 152 CLR 528 at 563; Reg v Boardman [1975] AC 421 at 439, 444. That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.

Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings, evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant fact was unintended, or that it occurred innocently or fortuitously. Similar fact evidence is then admissible as evidence relevant to that issue."

Their Honours went on to say at 296-297:

"In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is anothe r r ational view of the evidence. That rational view - viz joint concoction - is inconsistent both the guilt of the accused person and with the improbability of the complainant's having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. This is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire ."

See also BRS v The Queen ( supra ) and, in particular, per Gaudron J at 1524-1525. In particular, her Honour said at 1524:

"Evidence of conduct on other occasions has special probative force or cogency in relation to the possibility of concoction only if it discloses some feature which renders it improbable that two or more persons would give an account of particular conduct if that conduct did not, in fact, occur. Or to put the matter in terms used in Boardman v D P P [1975] AC 421 at 461 per Lord Cross of Chelsea, it has probative force or cogency if there are 'features common to the ... s tori es which ... two liars concocting false s tori es independently of one another would have been unlikely to hit upon'."

The Crown Case at the Trial

The Crown case against the applicant was that the offences which were alleged in the indictment were committed on the complainant when she was aged between 12 and 16 years. The applicant was her stepfather. At the time of the trial she was 25 years of age. The offences were said to have taken place over a period of time between January 1984 and March 1987 at various places. Evidence was given of other sexual activity between the parties to explain thei r r elationship. The first two offences were said to have been committed at Beldon. Count (1) alleged an indecent assault committed by the applicant placing his hand on the complainant's vagina. At that time the complainant was not the applicant's stepdaughter. He was a baby-sitter for his natural children. She was baby-sitting for him while he undertook a pape r r ound. Before he left the complainant was lying on the floor watching television and the applicant was sitting on a couch. The complainant asked whether she could sit next to him because she was cold in the house. The applicant agreed and when she did so he put his arm around her and placed his hand on her vagina on the outside of her clothing and rubbed it.

Count (2) related to the same period at Beldon. There were occasions when the complainant would sleep over to mind the children. It was alleged that the applicant had got into bed with the complainant naked and rubbed his erect penis over her pelvic area. As already mentioned, the applicant was found not guilty in respect of count (2).

The offence the subject of count (3) was said to have been committed between 1 January 1985 and 31 March 1996 . By this time the applicant had married the complainant's mother and the complainant had become his stepdaughter. The applicant was working at a primary school as a gardener. The complainant was then about 13 years of age. At the time of the offence, the complainant was at the school with the applicant. No-one else was at the school at the time. He took her into a garden shed and sat her down on a chair. They were both naked from the waist down. The complainant was straddled over the applicant who penetrated her vagina with his penis, causing her to bleed. When she asked what she could tell her doctor about the loss of virginity, the applicant told her to tell the doctor that the bleeding was caused by he r r iding a bicycle.

The offence the subject of count (4) was alleged to have occurred between 14 and 15 March 1987 . The applicant and the complainant, together with all of the members of the family, were members of the <<Jehovah >>'s Witness church. On the weekend of 14-15 March 1987 the applicant and the complainant went to Northam to assist in the building of a Kingdom Hall for the church. Together with a large group of other members of the church, they camped on the oval adjacent to the site of the Kingdom Hall. The applicant and the complainant shared a tent with several other people. During the night, when everyone else was asleep, the applicant pulled the complainant closer to him, undid her sleeping bag, placed his hand on the inside of her underwear and fondled her vagina.

The offence the subject of count (5) was said to have occurred between 1 and 31 October 1986 . The applicant took the complainant for a drive in the family car to a location in the pine plantation at Gnangara. At that stage the complainant was aged 14. During the course of the drive he told her that he had cancer of the prostate. This was not apparently true. He had sexual intercourse with the complainant and penetrated her vagina with his penis. He told her that this was a "farewell fuck" because he believed he was going to die. The applicant later told his family that he had cancer of the prostate which, it was said, was untrue.

The offence the subject of count (6) was that on a date between 1 and 31 December 1986 the applicant and the complainant were conducting surveillance on another member of the church, who had recently been expelled. The applicant and the complainant drove and parked outside a house to keep watch. The complainant was covered with a blanket because she was cold. The applicant was said to have placed his hand under the blanket inside her underwear and fondled her vagina. That act was interrupted when the owner of the house appeared.

In opening the case to the jury, counsel for the Crown told the jury that the Crown also intended to call the complainant's sister N, who would describe a sexual relationship she also had with the applicant. In the course of his opening, counsel for the Crown said:

"I just want to tell you about the importance of that evidence and what you can make of it. You see there is an additional factor in this case which will require your attention. You will see some handwritten documents. They're generally notes or verses of poetry, if you will, probably not very good but very significant. You see during the period of the sexual relationship that the accused man had with his stepdaughter ... the complainant, he did something curious. What he did was he would give to [the complainant] notes and write poetry or verses to her.

You will see one of those documents when [the complainant] gives her evidence. It's a piece of yellow card which she managed to keep. There were others but she discarded them. Fortunately she retained this document. The Crown says that the contents of that note, that yellow verses - those rhymes and the context in which it was given to her, confirmed what the accused ultimately denied to the police, and that was that he had never had any sexual relations with her at all; never had it.

It's a matter entirely for you, but you might find the contents of that verse to have sexual overtones. You might find that it indicates to you that this wasn't a natural, normal relationship between stepfather and stepdaughter, between an adult male and a young girl, a person that was under his care and responsibility and whose welfare he was partly responsible for. You will see that, but you will see the additional factor in this case is, and it's a matter for you, there is some support for what [the complainant] says about the sexual relationship and the context in which that document, that note was given to her because, you see, he did the same thing with her sister.

You will hear from her younger sister, [N] and she will tell you that she also had sexual relations with her stepfather. The conduct wasn't as advanced as it was with the older sister [the complainant], but it was nevertheless inappropriate with a young girl under the age of 16 years. Again she was a person under his care and protection whom he exploited and corrupted. He wrote notes and verses, poetry if you will, to her as well, and you will again see those types of documents in due course when she gives evidence.

... the Crown says there are clearly sexual overtones in these writings and it's not the sort of material one would expect from a father figure, an adult male, to a young girl, but ultimately that's a matter for you. I just hasten to say that what actually happened to [N] sexually is not so important a consideration as the similarity of the method that he employed in dealing with and having sexual relationships with her and the other sister, [the complainant], na mel y leaving his calling card if you will as part of the context of the sexual relationship that he was having with these young women.

The real importance of [N's] testimony is that it support's the allegation made by [the complainant] that the accused man did write verse to her and did so in the context of a sexual relationship between himself and [the complainant]."

The applicant's case at the trial was that he did not have any sexual relationship with either of the two girls. So far as the note written to the complainant was concerned, when the applicant was interviewed by police on video he was unable to provide an explanation initially, but eventually said "Well, I didn't write it for her, it was for someone else. I may have shown it to her."

The Complainant's Evidence

The complainant's evidence at the trial was that when she was aged between 12 and 16, when the offences occurred, she received a number of notes from the applicant on card or pieces of paper. She described them as "little notes saying how he felt and thought about me." She said when she was about 16 or 17 the applicant asked her to marry him. The sexual relationship continued after she was 16, partly in the expectation of marriage. She identified a document which became exhibit 2, being a piece of yellow card which contained one of the notes the applicant gave her. The complainant said it was given to her when she was 15 or 16 when the applicant was in the sound box at the back of a Kingdom Hall doing the sound work at Beldon. The family was then living at Heathridge or Wanneroo. The applicant identified the handwriting in the document as being that of the applicant. The note was in the following terms:

"I hope you don't mind ...

You don't look bad, even from behind!

I hope my thoughts aren't amiss

Cause I want to plant on you a kiss.

_____________________________

What's this bloke trying to do,

Is it because I'm all in Blue.

Let me tell you something dear,

I like to look, at you r r ear!

______________________________

What wicked thoughts they are

Controll ( sic ) yourself from afar ..

I sorry to say You drive me wild

You're such a sexy child??

______________________________

Don't begin to think & say

You never know that one day

You'll marry me & say

With you I'll stay

Ha Hoi!!!

_____________________________"

The complainant confirmed that the applicant had told her that he was going to marry her and that he actually bought her an engagement ring.

The Evidence of N

The complainant's sister N gave evidence that between the ages of 14 and 18 she had a sexual relationship with the applicant that commenced in about 1991 which involved him touching her on the breasts, touching her vagina and requiring her to masturbate the applicant. During the course of that sexual relationship there was an exchange of notes or verses or poems. Three of these notes were tendered as examples on the basis that the evidence was that there could have been, on average, one note a week. Sometimes they were handed to her, sometimes they were given to her when they said goodnight and sometimes they would be left under her pillow if she went away. The first of the three notes tendered was as follows:

"Thoughts and Worries in my head perplex

I don't know what will happen next

Fear and anxiety run thru' my head

Wonder why someone wants me dead.

________________________________

So much I need to say to you now

Tim e and place to find - I don't know how

Can I plead and hope you might

Stay awake for me tonight."

On the back of the note there was a reference to "Snowflake" which N said was a nickname the applicant had given to her.

The second note was said by N to have been given to her just as she was going to school. It was clearly addressed to N, although the spelling of her name was slightly changed. The note read:

"I know you won't remember last night, but I do, and will cherish your thoughts for ever, my friend.

It was like finally you were able to express yourself. When you ask me to 'put' you to sleep to see if you would talk like me - I thought 'she must be awake'.

P erhaps you were, perhaps you weren't. In any case my love and respect for you my friend has grown considerably.

P lease be assured, everything happened within 'our bounds' we set ourselves.

Your friend."

On the back of the note was written "My friend" and the words "Read at school" in brackets.

N identified the note as being in the applicant's handwriting. N's evidence was that the applicant was dealing with her sexually in that he would touch her when these notes were given to her.

N identified a third note as having been given to her when she was 14 or 15. The note was in the form of verses and was identified as being in the applicant's handwriting. The text was as follows:

"Why do days drag by?

I feel lonely, I wonder why!

Since your little frame has been away

With your bunny alnight I play!

____________________________

Some say the heart grows fonder

My thoughts, boy, do they wander

When you came home again

You took away some of my pain.

____________________________

Sometimes people do and say

Things taken the wrong way

Let be direct in what I now do

My forever friend, I LOVE YOU.

____________________________"

The Applicant's Evidence

The applicant gave evidence in his defence at the trial in which he denied any sexual relationship with either the complainant or N. So far as the offence the subject of count (1) was concerned, he denied any sexual contact with the complainant. When cross-examined about the yellow card containing the note to the complainant, he admitted that he had shown the complainant the note and that it was written for her, detailing circumstances of things in her life. He said he was unable to give an explanation for the note when interviewed by the police because he was shocked that the note had been removed from his wife's house. After some prevarication, he admitted that the note was written to the complainant. Asked why he did not tell the police that, the applicant said:

"I suppose the situation I was placed in, where I had the knock on the door I was getting ready to go to one of our church meetings and I was taken away by the police, and my children were there, and I did not know what the circumstances were going to be, and I'm a normal person like other people. You don't react and do things on the spot and I'm not a person that can do that. I do not deliberately lie about it."

In his defence, the applicant also said in relation to one of the allegations against him which occurred after the death of his first wife:

"I could not even conceive doing that sort of thing. It would be disrespectful to the thought of my wife. My wife gave her life for the beliefs she had as a <<Jehovah >>'s Witness with the blood transfusion. I had no right to take that away from her. I loved her dearly."

Summing Up by the Trial Judge

In his summing up to the jury the learned Judge referred to the yellow card containing the note which the complainant said that the applicant had given her. His Honour then said:

"The Crown says to you that's an objective piece of evidence that you can accept as supporting her story. [The applicant] says none of these things happened. She has either made it up or she is mistaken or she has together, with her sister, to contrive [ sic contrived] all this; or whatever the story is she had made this up, and this card is being misused. This was an innocent card. He agrees he wrote it. He agrees he gave it to her or at least showed it to her.

The Crown says, 'well he didn't agree with that when he spoke to the police.' He agrees in Court that he wrote it and he gave it to her, but he says it's not being properly used by the Crown or by [the complainant]. It was a father's card to a stepdaughter who had problems self-esteem, trying to show her that from an outsider's point of view she was a beautiful child who would find a husband and so on. That's another piece of evidence, that's for you to consider.

The Crown says in addition you can look at some aspects of what [N] told you. The accused man says these things didn't happen, that she has either made it up or got it all wrong. As a child she has misunderstood the events around her in this complicated, unhappy family and she has misconstrued the poem that he wrote her.

The Crown, you might recall - no doubt you do recall - called the younger stepsister [N]. The accused says he is a good man who wouldn't dream of doing these terrible things and as I say, that the poem he gave his stepdaughter [the complainant] is being misrepresented. The Crown called [N] and I want to turn to what her evidence represents if you accept it. It is, of course, a matter for you to decide as a matter of fact whether you accept her evidence or whether you don't.

She says that being younger and later than the matters we are concerned with, in particular, her father was sexually touching her, not to the point of intercourse, but inappropriately sexually molesting her and that he was giving her cards with poems on them.

As I say, it's a matter for you whether you accept her evidence. [The applicant] says, 'That's not true either. These two girls talked each other into this.' I'm only concerned at the moment with the situation if you accept [N's] evidence. If you reject it, then of course you reject it and it's valueless from the prosecution's point of view, but if you accept it, what does it go to show? You can't say because he was touching [N] he was touching [the complainant]. You have been told, I think, by Mr Hofmann that in our courts normally that sort of evidence wouldn't be allowed. You can't say, 'I stole that man's car, therefore I stole his as well.' You can't show that someone has done something to someone else because they have done that something to someone else.

Of course the defence is, 'Well, he didn't do it to either of them' so why in this case was that evidence allowed to be put before you? As I have said, he says that he is a good man, a good and faithful husband, a good and faithful member of his congregation who wouldn't dream of doing such things, and if you accept [N's] evidence you might think that goes to tell you something about that. It goes to tell you something about his character.

More specifically, if you accept [N's] evidence, it goes to the question of his way of operation; that is, he says the card that he wrote was one of a whole series of cards that he wrote to all sorts of people - his wife, his other members of his family and perhaps others, outsiders - and that it was innocent; that you should read it in the way that he asks you to read it and not in the way that Mr Trowell asks you to read it.

The evidence from [N] was led on the basis that if you accept it - and that's, I repeat, a matter for you - then it is evidence that he had a method of writing cards to at least one of his stepdaughters which were not innocent in intent, which go to what the Crown says was happening between him and [the complainant]; that he was manipulating this child into believing things that were untrue, into doing things that she wouldn't otherwise want to do and he was doing it in a way which involved the writing of these sorts of poems and the handing onto the stepdaughter to encourage the relationship of which the Crown complains.

As I say, you cannot logically jump to the proposition either that because somebody does one wrong thing that they have been proved to do something else wrong. The example I gave was a person who might say, 'Well, I have stolen his car, but I didn't steal his,' and he may not have. You can't assume that because someone has stolen one car that they have stolen another, nor can you assume that because a man is capable of doing something that he has done it. You can't say, 'well' - any more than you would say 'He is generally a good man, therefore he can do no evil.' You can't come to a conclusion 'He is generally a bad man and therefore everything he does is evil.' You have to look at the evidence about the particular matter and what supports it and not make those sort of generalisations or conclusions of what we might call propensity. In fact, to give another illustration, the fact that someone drinks too much doesn't mean they were drunk.

[N's] evidence is allowed in on the basis that it helps you - if you accept it and it's a matter for you whether you accept it because [the applicant] denies it - decide whether you accept other evidence that is given about what sort of person he is and what sort of things he is not prepared to even contemplate, and it goes to the question of whether his, if you like, giving of the card to [the complainant] was the innocent act that he says or was the guilty act that the Crown alleges."

Admissibility of the Evidence of N

In my opinion, the evidence of N was relevant and admissible both because it had particular probative force and particular cogency. The evidence of N was relevant to the issue whether the applicant had written notes to the complainant, which were written because the applicant was in a sexual relationship with her. In my view, the probative force of the evidence outweighed any prejudicial effect. The probative force of the notes was that it contradicted the applicant's evidence that he had a natural relationship with his daughters. There was a striking similarity between the tone and content of the notes, with their connotations of a sexual relationship, and the strikingly similar character of the applicant's conduct in writing them to both his stepdaughters in the context of a sexual relationship. Their probative value also extended to a striking contradiction of the applicant's own evidence concerning the reasons why he would not have a sexual relationship with either of his stepdaughters.

In my view, this case was one of a kind described by Gaudron J in BRS v The Queen ( supra ) at 1524, where her Honour said:

"In some circumstances, evidence that an accused has committed other offences on other occasions is admissible because it is of particular probative force or has particular cogency. Its probative force or cogency lies in the fact that it discloses some feature which raises as a matter of common sense and experience, the objective improbability of its bearing an explanation consistent with the accused's innocence of the offence charged (see P fennig v The Queen (1995) 182 CLR 461 at 481-482, per Mason CJ, Deane and Dawson JJ. See also Hoch v The Queen (1988) 165 CLR 292 at 294-295 per Mason CJ, Wilson and Gaudron JJ; Harriman v The Queen (1989) 167 CLR 590 at 600 per Dawson J). Its probative value or cogency may derive from its disclosure of strikingly similar facts, some unusual feature common to the events in question or some underlying unity, system or pattern (see generally Hoch v The Queen (1988) 165 CLR 292 at 294-295, per Mason CJ, Wilson and Gaudron JJ; P fennig v The Queen (1994) 182 CLR 461 at 482, per Mason CJ, Deane and Dawson JJ)."

The fact that both girls received notes of a strikingly similar character with sexual undertones also had special probative force or cogency because it rendered it improbable that the complainant and her sister would give an account of particular conduct if that conduct did not in fact occur. This is because the notes emanated from a common independent source, na mel y their stepfather, the applicant. In that context also, the evidence of N was supportive of the evidence of the complainant, although, in my opinion, it was not corroboration strictly so-called. The evidence was also relevant to the issue whether the particular note to the complainant which was put in evidence was written with innocent intent. Finally, the evidence revealed an unusual common feature which showed an underlying unity, system or pattern of conduct on the part of the applicant.

It was submitted by counsel for the applicant that there were a number of points of dissimilarity between the evidence of the complainant and N. First, it was said that the applicant was not alleged to have sexually penetrated N. Secondly, it was said that the sexual acts complained about by N were different in nature and kind to those complained of by the complainant. Thirdly, no alleged promise of marriage was made to N. Fourthly, the notes or poems in each case were different in that the poem to the complainant was overtly sexual, whereas the notes or poems to N were not. Finally, it was submitted, there was no pattern to the giving of the notes. In my opinion, the relevant similar facts related to the content of the notes as well as the fact that they were given. In my view, each of the notes to N contained a sexual connotation which was either overt or implicit. The first of the notes to N concludes:

"Can I plead and hope you might

Stay awake for me tonight."

The second note in its context has at least a sexual connotation in the passage:

"Since your little frame has been away

With your bunny at night I play!"

Thirdly, it is implicit from the references to what happened the previous night, putting N to sleep and ending with an assurance that "everything happened within 'our bounds' we set ourselves" had a sexual connotation.

During the course of his oral submissions, counsel for the applicant referred to a passage in the summing-up, which I have already quoted, in which it was at least implicit that the learned trial Judge regarded the applicant's character as in issue in some way. It was common ground before us that the applicant did not put his character in issue at the trial. Counsel for the applicant, however, acknowledged that no point was taken in relation to that aspect of the matter. In my opinion, the approach taken by counsel was entirely appropriate. So far as the evidence of N is concerned, I am quite unable to accept that the relevant direction by the learned trial Judge resulted in any miscarriage of justice .

Applicant's Letter to N

Counsel for the applicant also referred to a letter from the applicant to N, which was exhibit 7, which was tendered by the Crown after it had been put to the applicant in cross-examination. This was an undated letter thanking N for not bringing anything to the attention of the authorities, saying "What good, would be accomplished by me being in gaol is far outweighed by the effect on Mum & Sam, the family and the Congregation, keeping in mind <<Jehovah >> sees and knows all". No objection was taken to the admissibility of the letter for its contents at the trial. In my opinion, the letter was admissible to contradict the evidence of the applicant that he never touched N in a sexual way.

At all events, there was no ground of appeal directed to the admissibility of this letter or the use that could be made of it to the jury. The letter was not referred to by the learned trial Judge. In my view, having read the cross-examination of the applicant, the jury were clearly entitled to take into account the content of the letter in evaluating the evidence of the applicant as against the evidence of N. In my opinion, the content of the letter clearly tended to support the truth of the evidence of N that she had been in a sexual relationship with the applicant. It was properly admissible as evidence of the relationship between the N and the applicant, as well as part of the attack on the credibility of the accused in cross-examination.

For all of these reasons, I consider that the application for leave to appeal against conviction is without merit and I would refuse leave to appeal.

Crown Appeal Against Sentence

In sentencing the applicant to a total term of imprisonment for 5 years with eligibility for parole, the learned trial Judge said:

"During the early part of this history, you married her mother. Over a period of time your behaviours and activities involving this girl led to a sexual relationship which went on well after she turned 16, but I am not concerned with what happened after she turned 16 for legal reasons.

In due course it came to an end and I think I should mention that in evidence she said, and I accept, that it came to an end because she found out that you were misbehaving towards another child who happens to have given evidence to like effect.

This behaviour you denied through the trial and you continue to deny it, it seems, to the community corrections people who have interviewed for the purpose of a pre-sentence report that I ordered from the <<Sex >> Offender Treatment Unit. I am told that you are 44 years of age. I treat you as a first offender because the very minor matters that you have in your history are not relevant to this sort of behaviour.

The course of conduct that I a m c oncerned with, the five counts are, as the Crown said, representative of an ongoing course of conduct which extended over a period of years. I have to sentence you for the five matters of which you were convicted and you don't thereby; that is, by the fact that they are representative of a course of conduct, become liable to a sentence for the other activities.

It is clear to me from the evidence that you were living in what I recall a closed home environment; that is, a home in which you were the dominant person, and in which you exercised your dominance.

It's not a matter for me how people express thei r r eligious convictions, but I note also that you were living in a home which was part of the environment of a religious group which effectively also assisted in closing off this girl fro m c ontact with the outside world. For better or for worse, that's the case. What is for worse is that you exploited that position by, over a period of time, your behaviour in expressing to her promises, lies, and in other ways you in effect seduced or, I suppose more accurately, corrupted her into this course of conduct.

The pre-sentence report indicates that, as I say, you deny that, but I have no doubt of it and in any event the jury found the five particular counts proved beyond a reasonable doubt. There is in those circumstances, as I think your counsel concedes and as I understand you concede, no alternative but to a custodial term. I will start that term from the first day on which I understand you were remanded in custody, that being 17 July 1998 . It being conceded by counsel that you should be made eligible for parole, I will make an order for eligibility for parole.

As to how the sentence should be structured, that has caused me a little bit of concern because some of the charges are of themselves more serious, in my view, than others and I might say that the length of the head sentence has caused me also to give this matter consideration which has not been easy. Your counsel has urged me to be as lenient as I can and I think that I can honestly say that I have done that.

The first count on the indictment was one of rubbing your stepdaughter's genital area outside her clothing when she was about 12. For that you are sentenced to a term of imprisonment of 3 months. In respect of count 3, you having been acquitted of count 2; that is the count which in effect intercourse between you and your stepdaughter took place for the first time. That I regard as by far the most serious act, not because intercourse didn't happen many times after that, but because on that occasion clearly things went past any tolerable limit, and for that you are sentenced to a term of 3 years' imprisonment cumulative.

In respect of count 4, that being a count of which you fondled her genitals whilst the two of you were sleeping in a tent with others in Northam, you are sentenced to a term of 6 months cumulative. In respect of count 5, that being the count in which you had sexual intercourse with her at the pine plantation in Gnangara when she was about 14 years of age, you are sentenced to a term of 12 months cumulative and in respect of count 6, again a case of fondling her genitals, this time in a car in the suburbs, you are sentenced to a term of 3 months cumulative. That's a head sentence of 5 years, as I say, to start from 17 July, and you are eligible for parole."

The Crown appeals against the sentences so imposed on the following grounds:

"(1) The learned Judge erred in the exercise of his sentencing discretion in failing to have sufficient regard for the aggravating features of this case, in particular:

(a) the position of trust which the respondent occupied as the step-father of the complainant;

(b) the gross breach of that trust in relation to the complainant and her mother;

(c) the exploitation and corruption of the complainant over a period of time.

(2) The learned sentencing Judge erred in describing the respondent as a first offender. He could be so described only in respect of count 1.

(3) The learned sentencing Judge erred in giving undue weight to factors personal to the respondent having regard to:

(a) the complete lack of remorse demonstrated by the respondent, not only by his continued denial throughout the trial but also indicated in the Court Ordered Specialist Report prepared by the <<Sex >> Offender Treatment Unit ('the Report');

(b) the fact that the respondent failed to accept that his actions were wrong or blameworthy was not a mitigating factor, and his clean record was outweighed if not overwhelmed by the course of conduct in which he engaged over a three and a half year period with his step-daughter.

(4) The learned sentencing Judge fell into error in imposing a sentence that fell outside the discretionary range for standards of sentence generally prevailing in serious cases in this type involving inter ( sic intra) -family sexual abuse."

At the relevant time the offence the subject of count (1) was committed between 1 January 1984 and 31 December 1984 , the maximum penalty for the offence of unlawfully and indecently dealing with a girl under the age of 13 years was imprisonment for 7 years with or without whipping. At the time the offence the subject of count (3) was committed between 1 January 1985 and 31 March 1986 , the maximum penalty under s328 of the Code was imprisonment for 4 years.

Counts (4), (5) and (6) related to offences under s324C of the Code , which then provided that:

"Any person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a misdemeanour and is liable to imprisonment for 6 years."

It was a circumstance of aggravation for the purposes of s324C that the person assaulted was under the age of 16 years by virtue of s324H(e). Reliance was placed by senior counsel for the Crown on the fact that counts (3) and (5) both involved acts of penetration in circumstances under which a single count of penetrative <<sex >> with a young person aged 13 to 14 would merit a term well in excess of 5 years. The difficulty with that submission is, of course, that the applicant was not charged with rape under s325 of the Code as it then stood, or its successor provision, s324E, sexual penetration in circumstances of aggravation, which included the case where the complainant was under the age of 16. In the former case, the maximum penalty was life imprisonment under s326 of the Code as it then stood and in the latter, the maximum penalty was imprisonment for 20 years.

There is no doubt, however, that these were serious offences of their kind. Had the respondent been convicted under s328 or its relevant successor, s324D of the Code , while there was no tariff, a sentence of 8 years was a sentence which was commonly imposed, although this could be reduced by particular mitigating factors: P odirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ. In that case I went on to say that in the case of a single act of aggravated sexual assault by penile penetration, much depends on the circumstances of aggravation but:

"... where there is a series of offences of aggravated sexual assault involving a girl under 16 years there is more room for variation, but sentences within the range 9 to 11 years are commonly imposed: Wennekes (unreported, Court of Criminal Appeal, (WA), No 5931, 23 July 1985); "M" (unreported, Court of Criminal Appeal (WA), No 6293, 21 May 1986 and Marlowe (unreported, Court of Criminal Appeal (WA), No 6525, 20 November 1986). Once again this is subject to particular mitigating factors. In P rice (1988) 33 A Crim R 359 this Court imposed a total sentence of 5 years and 3 months' imprisonment, giving credit for 6 months in custody, in respect of three counts of unlawful and indecent assault upon the daughter of the offender's defacto wife and one count of sexual penetration without consent. Only a slight digital penetration was involved. The offences were committed when the girl was aged between 9 and 12. In Hinkley (unreported, Court of Criminal Appeal (WA), No 7746, 21 July 1989) the offender pleaded guilty to five counts of unlawfully and indecently dealing with a child under the age of 14 years, six counts of inciting a child under the age of 14 years to unlawfully and indecently deal with him and one count of inciting to unlawful and indecent dealing with a girl under the age of 16 years. The offences occurred over a seven year period and involved his two step-daughters. One was aged under 14 and the other under 16. The total sentence in that case was effectively 6 years. In Honisett v Toth (unreported, Court of Criminal Appeal (WA), No 5192, 22 December 1983 ) there were one count of incest, seven counts of indecent dealings, one of indecent assault and one of attempted incest. The total sentence imposed for what was regarded as the debauchery of a child over a long period was imprisonment for 10 years. I would not, however, regard these sentences as having characteristics of 'tariff' sentences because as Burt CJ pointed out in Ginder [(1987) 23 A Crim R 1 at 4] there is so much room for individual variation in terms of the kinds of sexual penetration and other sexual acts in the circumstances of aggravation, quite apart from personal and other factors of mitigation. While the Crown may have proved acts of penile penetration in respect of counts (3) and (5) the offences charged were unlawful and indecent assaults rather than counts of sexual penetration. While that circumstance made these unlawful and indecent assaults very serious, the maximum penalty in the first could not exceed 4 years and that in the second could not exceed 6 years under s324C."

In my opinion, the learned Judge incorrectly characterised the offence the subject of count (5) as a count of "sexual penetration of a girl under the age of 16 years." The indictment did originally contain a count under s324D of the Code that on a date unknown between 1 June 1988 and 30 June 1989 the applicant sexually penetrated the complainant by inserting his penis in her vagina, but this count appears to have been deleted by amendment at or prior to the commencement of the trial. Only six counts were ever put to the respondent.

The facts did disclose a course of serious sexual misconduct with a young girl commencing at the age of about 12, involving a gross breach of trust, the corruption of the young girl, and the exploitation of the complainant by the respondent for his own gratification. The respondent continued to deny responsibility even after conviction. The pre-sentence report before the learned Judge assessed him as being at a high risk of re-offending. The learned Judge took account of the fact that the applicant was a first offender. This, of course, had to be balanced against the fact that the convictions were representative of a course of conduct which had taken place over a period of some four years or more.

The impact of the offences on the victim was profound. In her victim impact statement the complainant said that since the age of 10 she had wanted to be married and have children. From her standpoint, her stepfather took advantage of her feelings. During the time of he r r elationship with the applicant she felt more like his wife than his stepdaughter. She used to pay bills for him, work with him and they operated a joint bank account. She lived in a context of lies and deceit. As a result of the relationship her schooling was interrupted. The respondent would undertake her assignments and homework by way of cover up. It is clear that although, fortunately, the complainant is now married, that having to tell her husband about what had happened to her was one of the emotionally hardest things she has ever had to do.

Relevant P rinciples

The principles applicable to an appeal by the Crown under s688(2)(d) of the Code are well settled. In P eterson [1984] WAR 329 at 330, they were said by Burt CJ to be identical to those stated by Brennan, Deane and Gallop JJ in Tait & Bartley v The Queen (1979) 46 FLR 386 at 387-388. Their Honours there said:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature for the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error: see generally Skinner v The Queen (1913) 16 CLR 336 at 339-340; Withers v The Queen (1925) 25 SR (NSW) 382 at 394; Whittaker v The Queen (1928) 41 CLR 230 at 249 and Griffiths v The Queen (1977) 137 CLR 293 .

Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defen dan t, a Crown appeal raises considerations which are not present in an appeal by a defen dan t seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ in P eel v The Queen (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy the vested interest that a man has to the freedom which is his, subject to the sentence of the 'primary tribunal' per Isaacs J, Whittaker at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing Court."

Sentence Manifestly Inadequate

In my opinion, the total sentence of 5 years imposed by the learned sentencing Judge was manifestly inadequate. As already noted the applicant was in a position of trust and control which he exploited for his own gratification by corrupting his stepdaughter from the age of 12 throughout her teenage years and beyond.

Counsel for the respondent referred to the decision in Dempsey v The Queen , unreported; CCA SCt of WA; Library No 960059; 9 February 1996 . That, of course, was a very different case from the present. In that case, Murray J, at 6-7, without wishing the statement to be exhaustive, set out a number of factors to which attention would need generally to be given in deciding upon the imposition of sentences in cases of sexual assault. These were:

"1. The nature of the conduct in question, the degree of perversion or deviance demonstrated.

2. The relative ages of the offender and the victim.

3. Whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence.

4. Whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender.

5. The circumstances of the victim and the degree to which that person was not only taken advantage of, but his or her corruption was contributed to by the commission of the offence.

6. Whether the offence was repeated and if so over what period or periods of time so as to enable the court to consider whether it was of an isolated character or displayed recidivism on the part of the offender.

7. The degree of remorse displayed and whether any such contrition has been effectively followed up by determined efforts to achieve the offender's rehabilitation.

8. The youth of the offender.

9. The extent to which the victim's co-operation in the commission of the offences was secured by friendship or by the offer of some reward.

10. The actual impact of the commission of the offence upon the child established by a victim impact statement or otherwise.

11. Whether the offender has a prio r r elevant criminal history.

12. The prevalence of such offences in the community at the time and the degree to which particular circumstances indicate a heightened need to seek to achieve the protection of the community and particularly of young persons from the commission of such offences, whether with or without their consent."

In this case, the conduct ranged from mere touching to penetration of the complainant's vagina by the applicant with his penis. There was a very considerable disparity in age. The offender was in a position of trust or authority with respect to the complainant. There does not appear to be any element of coercive or forceful behaviour on the part of the offender, but the victim was clearly not only taken advantage of but her corruption substantially contributed to by the commission of the offences. The various offences were committed over a substantial period and displayed a strong tendency toward recidivism on the part of the offender. By maintaining a state of denial, even after conviction, the respondent displayed no degree of remorse or contrition. His prospects of rehabilitation were slim. The offender was a mature man who presented himself to the world as a God-fearing member of a Christian church. The victim's co-operation in the commission of offences was secured by declarations of love and the promise of marriage. The actual impact of the commission of the offences upon the complainant was substantial.

While the offender had no significant prio r r elevant criminal history, the circumstances under which the offences were committed were representative of the need to seek to achieve the protection of the community and particularly young persons from the commission of such offences, whether with or without their consent, by the imposition of appropriate punishment.

The Sentences Increased

In my opinion, taking account of the fact that this is a Crown appeal involving a situation of double jeopardy, I consider that the total sentence imposed was manifestly inadequate, so that it is necessary to re-sentence the respondent. The approach to be adopted in this Court when sentencing for more than one offence was raised. One approach has been to decide what would be an appropriate overall sentencing taking into account the totality principle and then structure the individual sentences accordingly. An alternative approach has been to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence and the application of the totality principle. The High Court has recently adopted the latter as being the correct approach. In P earce v The Queen (1988) 72 ALJR 1416 at 1423-[45], McHugh, Hayne and Callinan JJ said:

"A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course as questions of totality."

I would confirm the imposition of a sentence of 3 years in respect of the offence the subject of count (3), which the learned Judge regarded as "...by far the most serious act", as it took the gravity of the criminal conduct of the offender onto a new level. According to his Honour this was:

"... not because intercourse didn't happen many times after that, but because on that occasion clearly things went beyond any tolerable limit."

With all due respect, it was right to regard the offence as serious, but the reference to things going "beyond any tolerable limit" tends to understate the seriousness of the offender's conduct towards the complainant from the time he first engaged her in sexual activity. It is also necessary to bear in mind, however, that the charge was one of unlawful and indecent assault and not a charge of unlawful sexual intercourse, which would at that time have constituted unlawful carnal knowledge of a girl under the age of 16 years under s187 of the Code , as it then stood, for which the maximum penalty was imprisonment for 5 years. The maximum penalty under s328 for the offence as charged was imprisonment for 4 years.

As to count (5), this was an offence against s324C of the Code which came into force on 1 April 1986 . The maximum penalty for that offence was imprisonment for 6 years. The offence was committed between 1 and 31 October 1986 at Gnangara. In my opinion, in the context of this case, the sentence of 12 months imposed by the learned Judge was manifestly inadequate. It failed to take account of the increases in penalty by P arliament by the Criminal Code Amendment Act 1985 (WA) which required an appropriate response by the courts as referred to by Burt CJ in Ginder (1987) 23 A Crim R 1 at 4 where the then Chief Justice said:

"...it must be accepted that sexual penetration by one person of another without the consent of that person is a serious crime and that if the person so penetrated is under the age of 16 years it is even more serious. The law is, I think, clearly saying that a person who commits such a crime ...should be punished and be seen to be punished."

While it is acknowledged that there is no tariff for such offences, the range of sentences commonly imposed was detailed in P odirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ (with whom P idgeon J agreed). See also R v P inder (1992) 8 WAR 19 at 38-39 per Murray J (with whom Malcolm CJ and P idgeon J agreed).

While again, in this case, the offender was not charged with sexual penetration under s324D, in respect of which the maximum was then imprisonment for 14 years, he was convicted of aggravated unlawful and indecent assault for which the maximum was imprisonment for 6 years. Given that the offence involved the insertion by the offender of his penis into the complainant's vagina and all the other circumstances, this was a serious offence of its kind. In my opinion, taking full account of the restraint required in the context of a Crown appeal, a sentence of 4 years should be imposed, to be served cumulatively. So far as counts (1), (4) and (6) are concerned, I would impose a sentence of 1 year in each case, to be served concurrently with each other but cumulatively upon the other terms. The order for parole would stand. For these reasons the Crown's appeal should be allowed, and the sentences imposed set aside to the extent which I have indicated and substituted by the sentences I would impose.

KENNEDY J:

I have had the benefit of reading in draft the reasons to be published by Malcolm CJ, with which I am in agreement. For those reasons, I agree that leave to appeal against the convictions should be refused and that the Crown's appeal against the sentences should be allowed to the extent which the Chief Justice has indicated.

P IDGEON J:

I agree with the reasons of the Chief Justice and the order proposed.

 

 

 

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