Ndy v WA

[2020] WASCA 172

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Propensity evidence
3. › Cross-admissibility
4. › Multiple complainants
5. › Whether evidence had significant probative value
6. › Sexual interest in post-pubescent girls in familial relationships
7. › Time gap between offending
8. › Evidence Act 1906 (WA), s 31A(2)(a)
1. Criminal Law
2. › Appeal against conviction
3. › Child sex offences
4. › Propensity evidence ruling
5. › Whether trial miscarried by admission of cross-admissible evidence
6. › Evidence Act 1906 (WA), s 31A
1. Criminal Law
2. › Sentencing
3. › State appeal against sentence
4. › Manifest inadequacy
5. › Aggravated sexual penetration without consent
6. › Whether individual sentences manifestly inadequate
7. › Criminal Code (WA), s 326
1. Criminal Law
2. › Sentencing
3. › Totality principle
4. › First limb
5. › Whether total effective sentence bore proper relationship to overall criminality
6. › Multiple counts of sexual offending against two complainants

Quick Take

Propensity evidence of sexual offending against a familial member retains significant probative value in relation to offending against a non-biologically-related person where the offender had a familial-like relationship with the second complainant. A time gap of over 7 years between offending against different complainants does not preclude a finding of significant probative value where the gap is explained by lack of opportunity. For aggravated sexual penetration without consent under s 326 of the Criminal Code (WA), sentences of 2.5 to 3 years where the maximum is 20 years are manifestly inadequate where there are significant aggravating features including breach of trust, use of force, and vulnerability of the victim.