Brennan v The Queen [2012] VSCA 151

CRIMINAL LAW - Sentence - Rape - Indecent assault - Multiple counts - 10 victims - Total effective sentence of 10 years and 6 months' imprisonment with non-parole period of 7 years - Not manifestly excessive - No error in judge's treatment of applicant's age - Judge failed to order any cumulation in respect of five victims - Cumulation orders varied to reflect each victim - Resentenced to 10 years and 3 months' imprisonment with same non-parole period of 7 years.

No appearance on the conviction election which was determined on the papers

1 Following separate trials, the applicant, Peter Brennan, was found guilty on Presentment W02378931.1A[1] ('the first presentment') of seven counts of indecent assault[2] (counts 1, 3, 6, 8, 9, 11 and 12) and two counts of rape[3] (counts 2 and 5) and on Presentment W02378931.1B[4] ('the second presentment') of nine counts of indecent assault (counts 2, 4, 5, 8, 9, 10, 12, 13 and 14). He was sentenced in respect of both presentments to a total effective sentence of 10 years and 6 months' imprisonment, with a non-parole period of 7 years. He sought leave to appeal against conviction and sentence.

2 On 16 September 2011, Nettle JA refused leave to appeal against conviction but granted leave to appeal against sentence in respect of one ground, namely the failure to properly consider the applicant's age. The applicant[5] elected to have his application for leave to appeal against conviction determined by the Court of Appeal.[6] We heard that application and the appeal against sentence. We deal first with the application for leave to appeal against conviction.

3 The applicant relies upon a written submission filed on 15 March 2012. He was not represented (although he was on the sentence appeal) and chose not to appear himself. Accordingly, we have determined the matter on the papers.

4 The applicant relies on the same grounds that were considered by Nettle JA. And his written submission is the same except with the addition of some comments in response to the Crown's written case. Nettle JA delivered comprehensive reasons for refusing leave, to which we have had regard. We have also had regard to transcript of the trial including the charge to the jury, and the respective written submissions.

6 In February 2006, the applicant sought employment as a massage therapist at Serenity & Tranquility Health Care and Day Spa Centre ('Serenity') in Ballarat. He represented himself to the proprietor, Ms Forbes, as having extensive experience in the field of massage and to be seeking formal qualifications for which purpose he required employment in the industry. Ms Forbes engaged him and, after about a month, issued him with a Certificate of Remedial Therapy Training. Ms Forbes instructed the applicant as to the parts of the body he could touch. He was told to avoid the breast and abdominal areas, the groin and upper thigh, and to massage the buttocks only with a sheet over the client, and never to direct clients to remove underwear.

7 The offences arose from the applicant's conduct during the course of massaging clients at Serenity. The offending the subject of the first presentment was alleged to have occurred between June 2007 and August 2007, and that covered by the second presentment between November 2006 and July 2007. The two presentments concerned 11 female clients each of whom was a complainant. A verdict of not guilty was returned in respect of the single count relating to one complainant (KW), being count 10 on the first presentment. While the applicant was acquitted of counts on each presentment he was convicted in relation to the 10 complainants.

8 The following table identifies the complainants and the counts in respect of which a conviction was recorded. For convenience the table includes the sentence imposed:

9 It is not necessary to outline here the evidence which formed the basis of the counts, as we refer to it below to the extent necessary to understand the grounds of appeal.

10 The applicant was interviewed by the police on 28 August 2007. He admitted having massaged the complainants' breast and groin areas, and to having asked two or three women to remove their underpants. He said it was part of normal massage procedure. The applicant stated that he had 25 years' experience in the industry and no formal qualifications.

11 The Crown case comprised evidence from the complainants, Ms Forbes who gave evidence as to the circumstances in which the applicant sought and obtained employment, the protocols of which he was advised and evidence of recent complaint made to her by one of the complainants. There was also evidence of a recent complaint by another complainant given by a Ms Smith and evidence of Geoffrey Waldron, former President of the Australian Association of Massage Therapists, who gave evidence concerning the requirements of a Certificate IV in Massage and the difference between sports massage and other forms of massage therapy. The informant also gave evidence and tendered an extensive record of interview. The applicant gave evidence on oath and asserted the truth of his answers in the record of interview.

12 With that introduction we turn to the first presentment.

13 In respect of the complainant SC the applicant admitted massaging her breasts (count 1), claiming with her consent, and admitted penetration of her vagina with his fingers (count 2 - the complaint being penetration by two fingers), but said it was accidental.[7]

14 In respect of NH (counts 3, 5 and 6), the applicant contended that he obtained permission to rub NH's breasts and had her permission to massage her vagina and groin. He admitted kissing her on the cheek and said that she kissed him on the lips.[8] He denied putting his finger in her vagina, but said he may have with going over the vagina, but not deeply inside.

15 In respect of MM (counts 8 and 9), the applicant admitted rubbing her breasts, but said he had consent.[9] He also massaged her groin area, touching the outer line of her panty area,[10] but denied touching her vagina.[11]

16 In respect of FB (counts 11 and 12), the applicant admitted rubbing her breasts,[12] but as to the allegation that he touched her vagina over her panties, he denied that, saying that he touched her panty line only.[13]

17 We turn now to the grounds relied upon as they appear in the applicant's written submission.[14]

Ground 1 - Inadequate instructions by judge to jury

The judge's initial instructions to the jury which commence at line 13, page 18 and finish at line 15, page 20 of the transcript is insufficient and erratic. The judge does not speak about him being the judge of the law and the jury the judge of the facts. He fails to properly instruct the jury on their role and as such, this led the jury to convict. The prosecution in their response to this submission states that 'No specific error by the learned trial judge is identified in paragraph 1 of the applicant's written case'. This is untrue. I specifically point to the omissions the trial judge makes in his instructions to the jury.

19 We take this ground to refer to the instructions which appear at pages 1 and 2 of the transcript in which the judge, immediately after empanelment, directed the jury as to their role. He explained their function and that they were to decide the matter only after having heard the evidence and the arguments. The trial judge, again at the commencement of his charge,[15] explained to the jury their role and function and the role and function of the trial judge. Such directions, taken together, are unexceptional. There is no basis for this ground.

Ground 2 - Inappropriate remarks by judge in presence of jury

After the luncheon adjournment on 16 February 2009 immediately after the jury enters the courtroom the judge begins one of his many interventions and begins to ask questions saying at line 4 page 7 of the transcript 'Could you please explain the discrepancy between the number of fingers introduced to the vagina as stated in the counts as versus the description given by the prosecutor'. He says this without any evidence then being led. It is legal argument that should've taken place without the jury being present. This prejudiced the jury before any evidence is led against the defendant. The prosecution states in their response to this submission that 'there was no error with respect to his Honour's remarks about indecent assault which were unremarkable and not apt to mislead'. This again fails to recognise that the jury could have been confused as to the uncharged acts of which the accused was not charged with. This confusion could have led the jury to convict.

The prosecution also goes on to state that comments about 'overloading the presentment' and that the judge went on to redirect the jury. However the horse had already bolted as it were in that again there is confusion as to uncharged acts. This suggests that the accused committed criminal acts that were not accounted for, suggesting to the jury that he was guilty of far more than that with which he was charged.

21 With the addition of responses to the Crown's submission, this ground refers to two distinct matters. The first concerns his Honour's remarks at page 7 of the transcript. At this point, his Honour was doing no more than responding to a question of the jury. It did not require legal argument, and the answer was unexceptional and could not have prejudiced the jury before evidence was led. The complaint is without substance.

22 The second challenges the Crown's written submission addressing his Honour's remarks about indecent assault, and comments about overloading the presentment. His Honour's reference to 'overloading the presentment' was a reference to the Crown's election to lay separate counts in respect of a number of acts which had occurred in the one episode involving the one complainant. It was not a reference to uncharged acts (and no such evidence was led). As Nettle JA observed, after the Crown explained the rationale for laying separate counts, his Honour considered it appropriate to proceed on the presentment.

23 In any event, the applicant was acquitted of two of the counts in respect of this incident and therefore there could not be said to be any confusion which has led the jury to convict on this basis.

Defence counsel ... demonstrated his incompetence when he allowed a witness for the prosecution namely Jennifer Elizabeth Forbes to be led through questioning at line 9, page 9 of the transcript. The judge intervenes and requests whether there is an objection at line 15, page 9 of the transcript, but given that there is no objection, continues to allow the witness to be led through their testimony. This demonstrates the incompetence of defence counsel and a judge unwilling to stop a witness being led, thus further prejudicing the jury. The prosecution states in their submission that 'there is nothing in the trial transcript to support the view that the conduct of the applicant's trial counsel was marked by such egregious incompetence, so as to have caused a miscarriage of justice, or to have deprived him of a chance of acquittal that was fairly open to him'. However in several instances throughout the transcript as highlighted, the defence counsel is warned by the judge to exercise caution in his questioning and on several occasions the judge intervenes and asks is the line of questioning wise. This demonstrates that counsel was not sufficiently experienced at criminal trial to ensure a robust representation of the accused and that indeed his conduct was marked by such egregious incompetence, so as to have caused a miscarriage of justice.

The prosecution also states that 'any leading questions asked of the witness Forbes were permissible because they concerned matter of an introductory or uncontroversial nature'. This is simply not true, as the judge intervenes and asks 'is there any objection to the witness being led over this'? The counsel for the accused says 'no your honour' and as a result, the judge then continued to allow the witness to be led. Here issues were indeed not of an introductory nature and were controversial and misled the jury. Even the judge was concerned, yet continued to allow the witness to be led.

25 This ground is without substance. Ms Forbes gave evidence on non-contentious matters relating to the nature and operation of her practice, and the way in which she came to meet the applicant. In light of the non-contentious nature of the evidence, this was an efficacious way of putting the matters before the jury. As to the more controversial aspects of Ms Forbes' evidence, in particular that relating to recent complaint, she was not led.

26 As to the criticism of the applicant's trial counsel, although his Honour intervened on a number of occasions, the intervention was neither improper nor required to address 'egregious incompetence' or incompetence to a serious degree.[16] Furthermore, it is evident that his Honour was directing the applicant's trial counsel to the efficacy of the questions posed.

Grounds 4 and 5 - Admission of hearsay evidence

1. At line 17, page 17 of the transcript the prosecutor elicits evidence from Ms Forbes that is hearsay evidence and should not have been led. This further prejudices the jury. This is in clear breach of the hearsay rule. In the first instance the prosecution states that these 'are exceptions to the rule against hearsay, namely evidence of complaint and distress', yet the witness is not only being led but remembers little. It should have been excluded.
2. At line 18, page 29 of the transcript the judge allows hearsay evidence to be led by the prosecutor.

28 Each ground is without foundation. Ms Forbes' evidence[17] related to recent complaint, and was admissible as an exception under the hearsay rule as it then applied prior to the commencement of the Evidence Act 2008. Further, the witness was not led in respect of that evidence, her evidence being:[18]

She reported to you at that point something about a massage she had the day before?---Yes.

Can you tell the members of the jury what that was?---She was distressed and said that she felt she had been inappropriately massaged.

Did she tell you in what way she had been inappropriately massaged?---She mentioned touching of the breasts and I don't remember a lot, because I was in shock, actually.

So she mentioned the breasts. Is there any other area that you can recall?---I think she said her inner thigh.

When you spoke to FB, when she rang you on 4 August, what did she actually say to you?---She said I'm very upset with the massage I had and I think I've been inappropriately massaged. My auntie said to give you a ring and tell you.

30 The latter evidence again relates to recent complaint and, as such, was admissible. Further, the evidence was not given in response to a leading question, but even if it were, it was permissible as it was given in cross-examination.

Ground 6 - The admission of prejudicial evidence with no probative value

Commencing at line 27, page 32 of the transcript, [defence counsel] has an exchange with the judge, in the presence of the jury that clearly alludes to 'all of the clients that [the applicant] had ever had, correct'. This is clearly prejudicial in front of the jury and suggests that there are many more victims, than those on the presentment. The judge leaves it far too late to excuse the jury. This demonstrates, once again the incompetence of defence counsel and the failure of the judge to act, not only in ensuring legal argument is held in the absence of the jury, but allowing defence counsel to err in this way.

32 The passage complained of arose in the cross-examination of Ms Forbes. Following upon this exchange, the jury were invited to retire.[19] His Honour was alert to the potential danger of persons other than the complainants being named as victims and, in the absence of the jury and in the presence of the witness, cautioned counsel to be specific about his questioning. Further, the judge precluded the prosecutor from returning to the issue in re-examination and defence counsel's further cross-examination on this point related specifically to the five complainants.[20] In these circumstances, there was no prejudice as contended.

Ground 7 - Failure of the judge to provide adequate instructions to the jury

At line 11 page 44 of the transcript there is an exchange between the prosecutor and the judge on the issue of statutory consent and statutory knowledge. The judge expresses concern on this issue and describes it at line 29, page 44 of the transcript as 'troublesome', yet fails to instruct the jury on the matter, when the jury returns to the court the following day. He fails to recall the jury that day and properly direct them on this issue.

34 The applicant did not develop this ground by way of written submissions. However, it is readily apparent that the essence of the complaint is that the judge failed to properly direct the jury as to the reasoning process they could follow in the event that they found the existence of a circumstance of deemed non-consent in s 36 of the Crimes Act 1958. In this case, the relevant circumstance of deemed non-consent relied on by the prosecutor was that three of the complainants[21] had consented to breast massage because of a mistaken belief that it was for a medical purpose. Nettle JA concluded that this ground was not reasonably arguable. However, in the light of this Court's subsequent decision in Wilson v The Queen,[22] this ground has substance. For the reasons that follow, we are of the view that ground 7 is made out, with the consequence that the convictions for indecent assault on counts 8 and 11 on the first presentment must be set aside and a new trial ordered on those counts. The remaining convictions on the first presentment, and each of the convictions on the second presentment are unaffected.

35 The critical issue raised by ground 7 is whether the judge misdirected the jury by telling them, in essence, that the mental element for the offence of indecent assault (that is, awareness that the complainant was not, or might not be, consenting to the relevant act[23]) would be satisfied if the prosecution established that the applicant was aware of the existence of a circumstance of deemed non-consent.[24]

36 In this case, the relevant circumstance of deemed non-consent relied on by the prosecution was that each of the complainants[25] MM and FB had consented to the touching of her breasts (counts 8 and 11 respectively) because of a mistaken belief that the touching was for a medical purpose.

37 As to the other indecent assault counts alleged by MM and FB (counts 9 and 12 respectively), the relevant touching was on the vagina. Neither complainant gave evidence that they consented to this touching. Further, the applicant denied touching the vagina at all, or on one view of the evidence said that any touching was accidental. In these circumstances, there was no issue as to consent on counts 9 and 12, but rather an issue as to whether any touching was intentional. Consistently with the way the parties put their cases, the judge correctly told the jury that the question of deemed non-consent arose only in relation to counts 8 and 11.

38 As to that, it is necessary to recap the evidence.

39 MM gave evidence that, without asking, the applicant began massaging her breasts. She was pregnant and the applicant told her that massaging the breasts would help with lactation and circulation. He said that he had done training in massaging pregnant women. She said that 'he was talking very medically' and she 'thought he knew what he was talking about'. Nevertheless, she felt uncomfortable and scared.

40 FB gave evidence that after massaging her chest area, the applicant commenced massaging her breasts. She did not initially give him permission, but after a couple of minutes of massaging her breasts he asked if she minded him doing it. She asked him whether it was necessary. The applicant told FB that massaging the breasts would help to open up the airways, and would help with asthma, stress, and to check for lumps and to drain lymphatic areas. Her evidence was that she put her trust in him as a professional. She did not feel relaxed during the massage and was quite fidgety but did not tell him to stop because she was 'hoping that possibly a tiny bit of what he was saying was true and somehow I would walk out of there feeling great'.[26]

41 The applicant gave evidence that each complainant gave him verbal permission to massage her breasts. He asked them before massaging their breasts, and 'right through the massage' to make sure they were happy with it. As to FB, he started massaging her chest and felt that it was tight with 'knotting'. She told him she was tense in the chest and had asthma. He asked her whether she minded him massaging her breasts if he had to massage all of her chest. She said that was fine. As to MM, he asked if she was happy for a chest massage to incorporate the breasts, and she said that was no problem. He denied saying anything to MM about massaging breasts to aid lactation, as he knew nothing about the matter.[27] He only mentioned that massage would loosen up fatty tissues and stimulate blood flow, through the whole of the body. In cross-examination, he generally denied giving medical explanations for massaging breasts, but said 'at times when I explain certain issues that could infringe a bit on the medical side of things'.[28] When asked what the benefits of breast massage were, he said the benefit was the same benefit as in any part of the body in that it stimulated blood flow.[29]

42 Having identified the first two elements of indecent assault, the judge directed the jury (in relation to MM) as follows:[30]

The third element: the prosecution must prove that there was no lawful justification for the touching, such as consent. I do not think I need go over it again. The prosecution case is this woman only permitted the touching of her breasts on the basis that she said that he had spoken to her about lactation and because he was speaking in medical terms, and she said she trusted him that that was a legitimate medical technique. The prosecution ask you to accept that and be satisfied beyond reasonable doubt that that was the circumstance. The accused's account: no, did not say anything like that and what was done in relation to the breasts was with consent. No consent arises so far as the accused is concerned because he says he did not touch the vagina.

The fourth element: the accused's state of mind - must prove that the accused was aware that the complainant was not consenting or that she might not be consenting to the respective touching. In relation to the - I repeat the medical issue, the law says that, again, consent is a state of mind and the law says that means free agreement. So MM would not have consented to the touching if she did not freely agree to be touched. If you are satisfied beyond reasonable doubt, as MM says is the situation that she mistakenly believed that the touching was for medical purposes. If you are satisfied beyond reasonable doubt that that is the reason that the complainant permitted the accused to touch her on the breast, that is in the mistaken belief that the touching was for medical purposes, then the law says you must conclude that the complainant was not consenting.

Applying that direction to this fourth element of the accused's state of mind, the mind of the accused such as would justify you concluding that he was aware that the complainant was not consenting, this element will be satisfied if the prosecution case can prove beyond reasonable doubt that the accused was aware that MM was of the mistaken belief that the rubbing of her breasts was for medical purposes, or prove that the accused was aware that MM might be mistaken about that but he decided to touch her regardless of this possibility. It is a bit of a mouthful but that is what the law directs me to tell a jury in this case of this question of the touching in circumstances where the complainant is under the mistaken belief that it was for medical purposes.

This fourth element, that is that the accused had the necessary state of mind to establish this particular element, will therefore be satisfied if the prosecution case can prove beyond reasonable doubt that the accused was aware that MM was of the mistaken belief that the rubbing was for medical purposes or the accused was aware that MM might be mistaken about that but he decided to touch her regardless of the possibility of her being mistaken.

It is for you to determine whether the prosecution has proved that the accused had the level of awareness necessary for this element to be satisfied. In making this determination you have got to consider all of the circumstances. This includes what was said or done at the time of the alleged touching. I have reminded you of the evidence about that.

43 The judge gave similar directions in respect of KW,[31] adding that:[32]

... perhaps I should mention it again - the element of the forbidden state of mind of the accused will therefore be satisfied if the prosecution proved beyond reasonable doubt that the accused was aware that KW was of the mistaken belief that the act, the rubbing of the breasts, was for medical purposes and they were the circumstances in which the permission was given, or alternatively, that the accused was aware that KW might be mistaken about that but he decided to touch her regardless of this possibility.

44 In relation to FB, the judge did not specifically refer to the interplay between the s 36 circumstance and the applicant's mens rea, but it was made plain throughout the charge that the reasoning process was the same for all three complainants where the s 36 circumstance arose.

45 The first thing to note is that the judge charged in accordance with the Victorian Criminal Charge Book as it then stood. However, as explained in Wilson, such directions were erroneous because they equated the applicant's awareness of the circumstance of deemed non-consent with an awareness that the complainant was not, or might not be, consenting.[33] As s 37AA makes clear, in cases (including the present) where the applicant asserts a belief that the complainant was consenting, the applicant's awareness of a circumstance of deemed non-consent is relevant to (but not determinative of) the jury's assessment of the reasonableness of his asserted belief. In turn, the reasonableness of his belief is relevant to the jury's assessment of whether the applicant actually held the belief. As the Court observed[34] in Wilson, whilst it may be that in some cases the facts that establish the circumstance of deemed non-consent will be sufficient to satisfy the jury that the accused was aware that the complainant was not, or might not have been, consenting, nevertheless the jury must assess that ultimate question (of mens rea) on the evidence as a whole.[35]

46 In the present case, the judge's directions precluded that course. We do not overlook that the judge told the jury to consider 'all of the circumstances', which no doubt picked up the applicant's evidence as to his belief in consent. Further, it might seem unlikely that a jury, having accepted that the applicant was aware that the complainants consented to breast massage because of a mistaken belief in its medical benefits, would nevertheless consider that the applicant believed that the women consented. However, it was a matter for the jury, properly instructed, to determine whether the applicant held a belief in consent and in turn whether the mental element of the offence had been established. Of course, if the jury was satisfied that he was aware of the complainants' mistaken belief, that would bear on the reasonableness of his belief, but it could not foreclose the possibility that the jury might find that the applicant believed the complainants were consenting, which might have engendered a reasonable doubt as to whether the applicant was aware that the complainant was not or might not be consenting.

Grounds 8 and 9 - Admission of expert evidence with no probative value but highly prejudicial

1. At line 14, page 49 of the transcript, evidence is led by a so-called expert namely Geoffrey Ernest Waldon. This evidence should never have been allowed to be led. The defendant was not a member of this organisation and as such not bound by the rules of that organisation, namely the Australian Association of Massage Therapists. The fact that the defendant may have breached the rules of this organisation is entirely irrelevant and seriously prejudiced the jury against the defendant early in the trial. The Association is a self-appointed body with no legal standing in the community and the evidence is clearly tainted. It had no probative value whatsoever and was prejudicial.
2. The judge at lines 1-20 page 52 of the transcript references rules, which he says are not 'relevant', yet he has previously allowed the evidence of Waldron to be led and continues to allow it to be led in respect of rules of an Association of which the defendant was not a member. This further prejudiced the jury and the judge allows a wide scope to the prosecution to continue to lead irrelevant evidence in the judge's own words that has no probative value. The prosecution states in their response 'Given that the question of qualifications was raised by the applicant in his interview with police and having been satisfied of the limited but relevant purpose of calling this witness, his Honour properly admitted it. It is submitted no unfair prejudice flowed from its submission'. Firstly, the accused did not raise any issues of qualifications with the police only insofar as he had been given a certificate by the proprietor of Serenity Health Care. Secondly, Waldron was called as an expert witness, when there was no representation by the accused to have been formally qualified or a member of any association relevant to massage. The judge was very concerned at the relevance of this evidence but failed to act and allowed the witness to seriously prejudice the jury.

49 Insofar as these grounds have been dealt with by Nettle JA, we would, with respect, adopt his analysis and conclusion, stated as follows:

1. The nub of proposed Grounds 8 and 9 of appeal is that the judge erred in admitting evidence of Geoffrey Ernest Waldron, a massage therapist holding a Diploma in Remedial Massage and a past president of the Australian Association of Massage Therapists. He gave evidence that the Certificate IV is the basic qualification in massage; evidence as to the difference between relaxation massage and sports massage; and evidence that there was no therapeutic or sports recovery treatment based reason to massage the breast tissue including the nipple area; and evidence that it would not assist lactating or in the relief of fibroids or in the prevention of breast cancer.
2. As the case appeared to stand at the point at which he gave that evidence, it seemed that it would be relevant, because it was expected that the applicant would say that he did advise breast massage for those purposes and believed that it was appropriate treatment. In the end, however, the applicant's evidence was that he did not recommend massage for any of those conditions, and thus Mr Waldron's evidence turned out to be irrelevant. Accordingly, the judge directed the jury:

I don't think I will trouble you with Mr Waldron's evidence, no one spent a great delay [sic] of time on it, in their final addresses.

1. The issues having been refined as they were by the end of the trial, I take the same view as the judge: that Mr Waldron's evidence would not have made the slightest difference one way or the other.

50 We would add the following. The applicant raised in his conversation with the police at his home and again in his record of interview that he had a Certificate IV in massage. Later, in the record of interview, he resiled from that assertion. In those circumstances it was not unreasonable for the prosecution to call evidence relating to the protocols of remedial massage as prescribed by Certificate IV. In any event, the trial judge limited the evidence to the difference between sports massage and other forms of massage, and whether there would be any therapeutic reason to massage certain areas of the body.

51 In Waldron's cross-examination, it was elicited that no formal qualifications were required to establish a practice in massage, that the vast body of practitioners did not have qualifications, and that he was aware anecdotally that breast massage may occur. In light of the applicant's evidence that he had no qualifications but 25 years' experience in the industry, this evidence was favourable to him.

52 His Honour was correct to confine the evidence as the case did not involve a breach of rules of an association to which the applicant was not a member. As the evidence progressed, and no doubt in light of the applicant's evidence, Waldron's evidence assumed less significance. Neither counsel having raised it to any degree in their final addresses, his Honour was entitled to make the remarks that he did.

Ground 10 - Inappropriate interference by the judge

At line 1, page 72 of the transcript the judge again intervenes and chastises defence counsel in front of the jury in respect of where his questions are going. He impedes defence counsel from conducting a full cross-examination on evidence that is particularly prejudicial.

55 There is no substance to this ground. The judge intervened when cross-examining counsel asked Waldron for the number of professional associations in Australia to do with massage therapy. The judge queried if counsel was attacking credit, and observed that he (counsel) was not getting anywhere with questions like that. Without more, counsel moved to another area. The ground is quite without substance.

At line 6, page 133 of the transcript defence counsel again demonstrates his incompetence by posing questions to the witness that are dangerous to the defendant. The judge recognises this and excludes the jury while he instructs defence counsel. However the defendant is not well serviced and is essentially denied a fair trial by the incompetence of defence counsel.

57 We reject this ground. In doing so we respectfully adopt the reasoning of Nettle JA, namely:

1. At the point of the transcript mentioned, the judge intervened for the benefit of the applicant to suggest to counsel that he take care in asking questions of one of the complainants as to what she was told as to why she should go to the police station. As the judge rightly reminded counsel, what mattered was not what the witness was told as to why she should go to the police station but that she went to the police station because she was told to go there. After the jury retired, the judge pointed that out in greater detail and to greater effect.
2. Perhaps, defence counsel should have been more careful in his questioning. But if so, it was the sort of error that we have all made at one time or another. And it was arrested before it caused any harm. I do not accept that it shows that defence counsel was incompetent, still less to the level which would have to be established to warrant appellate intervention. I reject Ground 9.

58 We would add that the trial judge was concerned that the witness not give a non-responsive and prejudicial answer to the question posed by defence counsel. The trial judge permitted a voir dire to clarify the witness's proposed response. Nothing in this procedure could be said to be productive of unfairness to the applicant.

Ground 12 - The admission of facts not in evidence

At line 12, page 211 of the transcript the prosecuting counsel poses a question to the witness NFH: 'He told you that you were a good girl because you let him do whatever he wanted to do'. This is introducing facts not in evidence. The witness never made such a statement, yet the judge does not pick up on this. The witness never said in her testimony before the court that the defendant told her 'she was a good girl and because she let him do whatever he wanted'. This further prejudiced the defendant. Throughout this entire line of questioning the judge allows the witness to be led.

60 The short answer is that the question put by the prosecutor simply repeated the witness's previous evidence. Further, the trial judge did not, throughout the witness's evidence-in-chief, permit her to be led. The ground has no substance.

At line 1, page 330 of the transcript, the judge recognizes again the propensity for the jury to be influenced by the 'totality of these cases', yet fails to instruct them accordingly. It is obvious that the prosecution are inferring that each case supports the other and the jury are influenced by this.

61 As Nettle JA observed, this ground complains that the judge failed to instruct the jury not to engage in propensity reasoning. In fact, however, such a direction was given, together with a separate counts direction and directions as to the permitted use of coincidence evidence. The ground fails.

Ground 14 - Failure of judge to provide adequate propensity warning.

At line 1, page 332 of the transcript, the jury [sic] has the opportunity to offer a propensity warning to the jury, subsequent to the prosecutor's opening address. He fails to do this and the jury are influenced improperly.

62 This ground too must fail. The judge gave a proper propensity direction when he charged the jury, and there is no reason to suppose that in the timing of when it was given any relevant prejudice was occasioned the applicant.

Grounds 15, 16, 17 and 18 - Inadequate instructions to the jury

63 Ground 15 complains that the judge's directions to the jury concerning Waldron's evidence were 'inadequate'. In particular, the judge's statement that no-one had made much of Waldron's evidence. This was reminding the jury that counsel had not made much of the evidence, which was correct, for reasons indicated above in dealing with ground 8. The direction was open and appropriate and could only have been of benefit to the applicant as it relegated the evidence to 'realms of insignificance', as Nettle JA observed.

64 Grounds 16 and 18 are covered by the discussion and conclusions concerning ground 7.

65 Ground 17 complains that the judge failed to instruct the jury that the Crown had not proved the fourth element of the charges of rape in counts 2 and 5. In fact, in relation to both counts the judge directed the jury that:

The prosecution must prove that at the time of that sexual penetration the accused was either aware that she was not consenting or aware that she might not be consenting. In this case, the defence case, it was accidental, and really what you have to be satisfied beyond reasonable doubt was that there was sexual penetration, there was no consent and it was not accidental.

66 There was evidence on which the jury could conclude that the vaginal penetrations the subject of these counts was not accidental.

Grounds 19, 20 and 21 - Inappropriate and prejudicial comments by judge in presence of jury

67 Each of these grounds fails for the following reasons stated by Nettle JA which we would respectfully adopt. Nettle JA said:

1. Under Grounds 19, 20 and 21, the applicant makes a number of complaints about what he says were inappropriate comments by the judge.

88. First, he complains that at page 369, lines 28 to 380 the judge said that:

I don't think anyone's arguing here that touching a woman on the breasts or touching a woman in the region of the vagina didn't involve indecent touching.

89. The applicant submits that:

This clearly infers, that despite the defendants evidence that it was not indecent and that he had told the witnesses and on oath that he was acting out of medical concern, is in fact guilty. This direction to the jury alone is grounds for a mis-trial. In the ordinary meaning of the word indecent, this is entirely prejudicial.

1. There is no substance in that point. The judge's observation came after he had given detailed directions on consent, and as part of an unexceptionable explanation of the meaning of indecent assault. As the judge went on immediately to add to the quoted part of the observation:

But you understand what the issues in this case are and that it arises in the peculiar circumstances of the accused being in a position of a masseur, in relation to each of these women.

Then the judge turned to a detailed exposition of the evidence and related it to the issues which arose in relation to each count.

1. In the result, that the jury can have been in no doubt that it was only if the Crown persuaded them that there was not consent and that the applicant knew that there was not consent or might not be consent, that it would be open to convict the applicant of the offence of indecent assault.
2. The next complaint is that at page 469 of the transcript, line 12 the judge said that he should have brought the prosecution of Count 5 to an end because in effect the two touches of NH's vagina were all part of the one, and yet the judge failed to put an end to prosecution of that count.
3. The difficulty with that argument is that it overlooks what happened after the judge made that observation (which was in the absence of the jury in response to an exception taken by the prosecutor). The prosecutor responded by pointing out to the judge that the reason that the two touches were alleged as separate counts was because NH was in a different position when touched on the first occasion to the position she was in when touched on the second. As the prosecutor reminded the judge, the Crown was thus bound or at least not wrong to plead the two touches as separate counts.[36]
4. The final complaint is that in the course of discussion with counsel in the absence of the jury, at Transcript 470 lines 18 to 24, the judge expressed the view that the Presentment was overloaded but failed to do anything about it.
5. That is really the same point, to which the answer is the same. But to that may be added that, despite the judge's comments, his Honour evidently did not consider that the Presentment was so overloaded that he should sever some of the counts and defence counsel did not seek that his Honour do so. Nor do I think that his Honour should have done so. It may be that the Crown could have been more discriminating in the offences which it determined to prosecute. His Honour's remarks to that effect are grounded in common sense and experience. But there were arguments the other way, which the prosecutor put with force immediately after the judge had made the observation; and apparently with the effect of sufficiently persuading the judge of the efficacy of that view of the matter to conclude that the presentment should not be severed or amended.[37] At all events, I do not consider it to be seriously arguable that the presentment was overloaded or so overloaded as to constitute a miscarriage of justice.[38]

68 For the reasons stated, we are of the view that ground 7 is made out, with the consequence that the convictions for indecent assault on counts 8 and 11 must be set aside and a new trial ordered on those counts. We refer below to the consequence this will have on the sentence.

69 The counts in the second presentment covered six complainants who were former clients of Serenity. Again, in his reasons Nettle JA set out a synopsis of the complainants' evidence. In the case of this presentment the sole proposed ground of appeal is that the verdict was unsafe and unsatisfactory, but the applicant's written submission made no argument in support. In that situation, and it otherwise not being apparent why the verdicts would be unsafe and unsatisfactory, the application for leave to appeal against them is refused.

70 Because the judge did not order any cumulation in respect of counts 8 and 11 on which the applicant's convictions will be set aside, it is strictly not necessary to resentence the applicant.[39] However, for reasons stated below, we are of the view that in circumstances where the learned judge failed to order any cumulation in respect of five of the victims, it is appropriate to resentence the applicant in order to make appropriate cumulation orders. In order to determine appropriate sentences, it is necessary to consider the sentence appeal.

71 As mentioned earlier, Nettle JA granted leave to appeal on the single ground that the judge failed to properly consider the applicant's age. He refused leave to appeal in respect of ground 1, which complained that the judge failed to properly apply the totality principle. Nettle JA also refused leave to appeal on ground 3 which complained of manifest excess in relation to the sentences on ten individual counts,[40] the orders for cumulation, and the non-parole period.

72 The applicant did not elect to renew his leave application in respect of grounds 1 and 3. This presented a difficulty. If the error alleged in ground 2 were made out, how could the Court intervene to reduce the sentence in circumstances where the refusal of leave in respect of manifest excess effectively meant that the sentences were within range? On the Court mentioning this, counsel conceded the difficulty. In these circumstances, and with the concurrence of counsel for the respondent, counsel accepted the Court's invitation to renew the application for leave in respect of ground 3 (manifest excess).

73 Before setting out counsel's submissions, it is necessary to refer to the conduct of the plea.

74 The prosecutor suggested a head sentence in the range of 11 to 13 years with a non-parole period in the range of 8 to 10 years. Defence counsel stated that he was 'roughly in the same ballpark as the [prosecutor]'.

75 Counsel also stated[41] that the applicant:

... is 63 years of age, and he accepts that, Your Honour will be handing down a substantial penalty today, including a substantial period of imprisonment. I spoke to him yesterday in prison and made him aware of that.

... he's 63 years of age. He's likely to be, even on a conservative concession by myself, he's likely to be imprisoned at least until his 70s or thereabouts.[42]

77 Counsel submitted that given the applicant's likely age at the time of release, there was 'no great need for specific deterrence.'[43] Counsel did not mention general deterrence.

78 In his sentencing remarks, the judge noted that counsel had informed the court that the applicant was aged 63 and without prior convictions, and had 'properly placed considerable emphasis on these matters'.[44] After referring to matters personal to the applicant, including positive character references and a good work record, the judge noted that:

[Counsel] correctly emphasised that you are now 63 and without prior conviction, and he correctly submitted in a case such as this when imposing penalty the court would have to tailor a sentence which had proper regard for the principle of totality in sentencing.[45]

79 Without further analysis as to the relevance of the applicant's age in the sentencing process, the judge proceeded to pass the sentences referred to above.

80 As to ground 2, counsel[46] for the applicant submitted that the judge was not given sufficient assistance by defence counsel as to how the applicant's age operated as a mitigating factor. While there was reference on the plea to the applicant's age, lack of prior convictions, and a submission that his age lessened the need for specific deterrence, there was no analysis as to how age lessened the weight to be given to general deterrence. As to the relationship between age and general deterrence, counsel referred to R v RLP[47] where this Court accepted that 'general deterrence might be moderated when sentencing an elderly person'. He also cited observations of Redlich J in R v Saw[48] to similar effect - referred to with approval in RLP - namely that general deterrence may be tempered by the need to exercise mercy, in circumstances where an offender may not live to be released. Counsel further noted the observation in RLP that 'general deterrence in the context of the sentencing of an elderly offender must be considered in light of the impact upon public perception of a gaol sentence upon a man as old as the applicant, upon whom the sentence will bear more heavily'.[49]

81 He submitted that each year in gaol represented a substantial period of the life left to the applicant, and hence imposed a greater mental and physical burden as he contemplated the limited years left to him upon release.[50] In short, if due regard had been given to the applicant's age, greater moderation of the sentences was required.

82 As to ground 3, counsel submitted that the individual sentences of 4 years and 5 years (on the two rape counts) and the individual sentences of 18 months and 15 months (on eight of the indecent assault counts) were manifestly excessive. He did not complain of the sentences of 12 months (and less) imposed on the remaining eight indecent assault counts.

83 In developing the submission, counsel referred to several cases[51] of digital rape and indecent assaults in a massage setting, where younger offenders received lower sentences than the applicant. Specifically, in Tektonopoulos a 37 year old offender received 3 years and 6 months for a digital rape (having pleaded not guilty) and 3 years for a digital rape (having pleaded guilty). In respect of 25 indecent assaults, the highest sentence imposed was 12 months (on one count), with individual sentences of 9 months (where he pleaded not guilty) and 6 months (where he pleaded guilty) on the remaining counts. In Wilson, the Court of Appeal, having set aside convictions on some counts, resentenced the appellant (aged between 31 and 51 at the time of the offending) on counts including multiple indecent assaults and a rape. The sentence on the rape count (a digital rape of the anus) was 3 years. The highest sentence in respect of the indecent assault counts was 12 months. Counsel submitted that these sentences demonstrated that the sentences imposed on the applicant were manifestly excessive. He submitted that an appropriate sentence range was between 2 years and 6 months and 3 years and 6 months for the rapes, and 6 to 12 months for the indecent assaults.

84 Counsel submitted further that the orders for cumulation were manifestly excessive. Counsel noted that while the prosecutor on the plea had recognised the need for a significant degree of concurrency, the judge had in fact ordered significant amounts of cumulation. He noted that the sentence of 18 months (on count 10 of the second presentment) was made wholly cumulative, and that significant proportions of other sentences were made cumulative. The result was a level of cumulation (5 years and 6 months on top of a base sentence of 5 years) that was excessive. Rather, the judge ought to have cumulated only modest amounts - for example 3 months - in respect of each victim. That would have achieved a lower total effective sentence while still fulfilling the objective of recognising each victim.

85 As to ground 2, counsel submitted that while the applicant's age was a relevant matter, it ought not be allowed to trump the objective gravity of the offending and the need for general deterrence. He submitted that the judge was plainly aware of the applicant's age and of the need to apply the totality principle. And while the judge did not specifically refer to general deterrence, he sentenced in a way that was responsive to the conduct of the plea. In the circumstances, it could not be said that the judge gave inappropriate weight to the applicant's age.

86 As to ground 3, counsel submitted that none of the individual sentences were manifestly excessive, having regard to matters including the gravity of the offending, which was a gross breach of trust, the absence of remorse, and the lack of any discount for a guilty plea. Further, the fact that the applicant was sentenced as a serious sex offender in respect of 16 counts meant there was a greater need for denunciation and deterrence.

87 As to the matter of cumulation, counsel accepted that the judge adopted an unorthodox approach, in the sense that he cumulated significant proportions of relatively few sentences. Rather, the preferable course was to make more moderate orders for cumulation, but in respect of each offence or, at the very least, in respect of each victim.[52] In this regard, in Wilson the Court made orders for cumulation (ranging from 1 to 20 months) in respect of each offence. If the judge had adopted that more orthodox approach in this case, it would not have led to a lower sentence.

88 It is convenient to deal first with ground 2. Whilst the principles relied on by counsel for the applicant are uncontroversial, it must be emphasised that the relative weight to be given to an offender's advanced age in the sentencing process depends on the particular circumstances of each case.

89 In RLP, the appellant was aged 77, in poor health, and had initially been sentenced to a head sentence of 18 years with a non-parole period of 12 years. He had committed incest offences of the worst category over 37 years. The Crown having conceded error on several grounds, the appellant was re-sentenced to 15 years and 7 months with a non-parole period of 10 years and 6 months. General deterrence was moderated on account of his age and ill health, but was still an important consideration.

90 In Saw, the offender, who was aged 66 and suffering from a severe depressive illness, pleaded guilty to murder and was sentenced to a head sentence of 14 years and 6 months with a non-parole period of 10 years and six months. General deterrence was moderated on the basis that each year in custody would represent a substantial portion of the period of life left to him.

91 In contrast to the above cases, the applicant here was only 63 years old at the time of sentence and, apart from a psychological report indicating that he was suffering from mild depression, there was no suggestion of ill health that would make prison more burdensome, or make it likely that he would die in custody. Of course, by definition, the older the offender is, the greater will be the time in custody as a proportion of his or her remaining years. But the circumstances of the applicant were a far cry from RLP and Saw. That is not to say that those cases are precedents to be applied or distinguished, but rather to emphasise that the applicant's age was of marginal relevance as a mitigating factor. Put simply, apart from the reference to specific deterrence, the emphasis on the plea was that the applicant had led an otherwise blameless life over 63 years, rather than any suggestion that his age reduced the need for general deterrence. This explains the judge's lack of specific reference to age as a mitigating factor.

92 Further, it is plain that the sentencing judge was aware of the applicant's age and sought to tailor a sentence that had regard to principles of totality. While the question of totality is conceptually distinct from the often related question of whether a sentence is 'crushing',[53] in referring to totality the judge was mindful of the need to avoid a crushing sentence, in light of the applicant's age. In effect, the judge granted the applicant what defence counsel had effectively conceded was the best he could hope for, namely release in his early 70s. We are not persuaded that the judge failed to have due regard to the applicant's age.

93 As to ground 3, we do not accept that any of the individual sentences were manifestly excessive. The mere fact that the applicant is able to point to more lenient sentences (in respect of both rape and indecent assault charges) imposed on the offenders in Wilson and Tektonopoulos does not mean that the applicant's sentences were outside the range. As Hudson v The Queen[54] makes clear, comparable cases can do no more than provide guidance as to the appropriate range.

94 As to the indecent assaults, in refusing leave, Nettle JA said that the sentences of 15 months and 18 months imposed on the applicant were statistically unremarkable, having regard to the sentences imposed in recent County Court cases arising from a massage setting. His Honour referred to four cases mentioned in the Crown's written case, namely Tektonopoulos, R v Dresen,[55] R v Hamshari[56] and Alikakos. Whilst the sentences in the first three cases did not exceed 12 months, in Alikakos three sentences of 18 months were imposed for indecent assaults following guilty pleas.

95 As to the rape counts, we have had particular regard to the discussion in Hasan v The Queen[57] of current sentencing practice for rape. The decisions referred to in Hasan, particularly R v Schubert,[58] demonstrate that while the applicant's sentence of 5 years might be regarded as stern, it cannot be said that it was outside the bounds of a proper exercise of the sentencing discretion. Having regard to the maximum penalty, the applicant's plea of not guilty and complete lack of remorse, and the objective gravity of the offending which included a gross breach of trust, it was open to the sentencing judge to impose the sentence that he did. The same reasoning necessarily applies to the applicant's sentence of 4 years.

96 As to the orders for cumulation, the learned judge ought to have approached the matter in the manner recommended by Ormiston JA in DPP v Grabovac.[59] That is, by moderating the orders for cumulation so as to comply with the demands of totality, whilst also recognising each victim by allowing for an appropriate measure of cumulation in respect of each offence. But we do not regard the individual sentences, the total effective sentence or the non-parole period to be manifestly excessive. Rather, the error lies in the orders for cumulation, which are themselves sentences.[60] As Ormiston JA made clear in R v Coukoulis,[61] even though the ultimate overall result may not differ, the errors may be of sufficient consequence to require them to be put right in the course of resentencing. In the present case, in circumstances where the learned judge failed to order any cumulation in respect of five of the victims, it is appropriate to resentence the applicant in order to make appropriate cumulation orders.

97 To that end, leave will be granted, and the appeals against conviction and sentence allowed in part, in order to set aside the convictions and sentences imposed on counts 8 and 11 on the first presentment and order a retrial in relation thereto, and to otherwise resentence the applicant to the same individual sentences, but with cumulation orders[62] as set out in the following table:

98 That produces a total effective sentence of 10 years and 3 months' imprisonment. We would fix a non-parole period of 7 years.

[2] Crimes Act 1958, s 39.

[3] Crimes Act 1958, s 38.

[4] Verdicts on 6 March 2009. This presentment is referred to in the Return of Prisoners as W02378931.2B.

[5] He is an applicant in relation to conviction and an appellant in relation to sentence but it is convenient to refer to him as the applicant throughout.

[6] Pursuant to s 315(2) of the Criminal Procedure Act 2009.

[7] T 242, 'The first digit finger did slip in', and T 243, 'Just a little bit'.

[14] Passages in bold print denote the applicant's additional comments.

[16] Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301, 342-3 [158]-[162].

[21] MM, FB and KW. The applicant was acquitted in respect of KW.

[22] [2011] VSCA 328 ('Wilson'). Special leave to appeal to the High Court of Australia was refused on 19 June 2012; The Queen v Wilson [2012] HCASL 82. Earlier, in The Queen v Getachew [2012] HCA 10; (2012) 86 ALJR 397, 404 [28], the High Court of Australia confirmed the reasoning in Wilson.

[23] Crimes Act 1958, s 39(2)(a).

[24] Crimes Act 1958, s 36.

[25] There was a third complainant, KW, in respect of whom the issue was raised, but the applicant was acquitted in relation to those charges.

[31] In respect of whom the applicant was acquitted.

[33] Wilson v The Queen [2011] VSCA 328, [130].

[35] See also The Queen v Getachew [2012] HCA 10; (2012) 86 ALJR 397, 404 [28].

[37] Cf R v TJB [1998] 4 VR 621, 630-631.

[38] R v Demirok [1976] VicRp 19; [1976] VR 244, 251.

[39] Smith v The Queen [2012] VSCA 5, [1] and [48].

[40] Counts 2, 5, 9 and 12 on the first presentment, and counts 5, 8, 9, 10, 12 and 13 on the second presentment.

[47] [2009] VSCA 271 ('RLP').

[48] [2004] VSC 117 ('Saw').

[49] RLP [2009] VSCA 271, [34].

[50] See Saw [2004] VSC 117, [39] and the authorities there cited.

[51] Tektonopoulos v The Queen (Unreported, Application for leave to appeal, Maxwell P, 31 July 2009) ('Tektonopoulos'); Wilson v The Queen [2011] VSCA 328 ('Wilson'). For completeness, we note that counsel also referred to R v Alikakos [2008] VCC 1392 where, on a plea of guilty, the offender was sentenced to 3 years in respect of each of two digital rapes.

[52] DPP v Grabovac [1998] 1 VR 664 ('Grabovac'); R v Izzard [2003] VSCA 152; (2003) 7 VR 480 ('Izzard').

[53] See Azzopardi v The Queen [2011] VSCA 372, [69].

[54] (2010) A Crim R 199, 206-9 [27]-[37].

[55] [2009] VCC 1207.

[56] [2009] VCC 747.

[57] [2010] VSCA 352, [55]-[60].

[58] [1999] VSCA 25. In this case, Brooking JA (with whom Winneke P and Ormiston JA agreed) held that a sentence of four years' imprisonment for a digital rape was 'high' but not manifestly excessive. The applicant had pleaded guilty and was genuinely remorseful.

[59] [1998] 1 VR 664.

[60] Ludeman v The Queen [2010] VSCA 333, [65].

[61] [2003] VSCA 22, [31].

[62] The sentences on both presentments are to be served cumulatively on the base sentence, being the sentence on count 5 on the first presentment.