Dibbs v The Queen [2012] VSCA 224

EVIDENCE - Tendency evidence - Whether admissions made by the appellant in relation to one complainant cross admissible as tendency evidence in relation to the other complainant - Whether evidence had significant probative value - Whether any substantial miscarriage of justice where other tendency evidence admissible and not the subject of appeal.

CRIMINAL LAW - Sentence - Offender re-sentenced to total effective sentence of three years three months - Non-parole period of two years.

1 I agree, for the reasons given by Harper JA, that this appeal should be allowed, and that the appellant be re-sentenced as his Honour proposes.

2 The fair, even-handed and compassionate administration of criminal justice according to law is as difficult as any aspect of civilised governance. And, of all the myriad forms of wrongdoing of which humankind is capable, sexual misconduct presents difficulties in its detection, punishment and restorative aspects which are as problematic as any that confront the criminal courts. This case, although by no means as complicated as some, illustrates the point.

3 On 9 August 2011, following a trial in the County Court, the appellant was convicted of two charges of sexual penetration of a child under the age of 10 (charges 1 and 2), one charge of gross indecency of a child under the age of 16 (charge 5), and one charge of indecent assault, again of a child under the age of 16 (charge 6). He had earlier (on his arraignment on 1 August 2011)[1] pleaded guilty before the jury panel to one charge of gross indecency (charge 8).

4 Before pleading guilty to charge 8, the appellant had also faced a charge of sexual penetration of a child under 16 (charge 3) as well as one of attempted sexual penetration of a child under that age (charge 4). Both were subsequently withdrawn by direction of the trial judge. The jury were unable to reach a verdict in respect of the remaining charge, charge 7 (indecent assault of a child under 16). On 9 August 2011, the Crown filed a notice of discontinuance in relation to that charge.

5 The plea was heard the following day and the appellant was sentenced on 12 August 2011. The relevant details are shown in the table below:

[Crimes Act 1958 (Vic) s 47(1)]

[Crimes Act 1958 (Vic) s 47(1)]

Gross Indecency [Crimes Act 1958 (Vic) s 50(1))

Indecent Assault [Crimes Act 1958 (Vic) s 44(1)]

Gross Indecency [Crimes Act 1958 (Vic) s 50(1))

In relation charge 8 (the only guilty plea), but for the plea of guilty, the sentence that would have been imposed if convicted of this offence after trial would have been 9 months imprisonment, with cumulation of 6 months.

The appellant was sentenced pursuant to s 6F of the Sentencing Act 1991 (Vic) as a serious sexual offender in respect of charges 5, 6 and 8.

Pursuant to s 34 of the Sex Offenders Registration Act 2004 (Vic), the length of the reporting period is life.

6 As will be seen from the table, the prosecution alleges that the events giving rise to these charges occurred at various times within the nine-year period between 23 September 1981 and 22 September 1990. The appellant, having been born on 19 August 1952, was 29 years of age at the beginning of that period. He was therefore 38 years of age at its end.

7 The two complainants are males, and are cousins. I shall refer to the younger, who was born in September 1976, as V1, because he was the victim of the earliest of the alleged offences. I have designated his elder cousin, who was born in January 1972, as V2. The appellant was 24 years older than V1, and 20 years older than V2.

8 The appellant had been the teenage friend of the father of V2. Through this connection he also became a good friend of that friend's step father, who in turn is the grandfather of both complainants. At the material times V1 was being raised by his grandparents in their home in a Melbourne suburb, where the appellant was a frequent visitor. Charges 1 to 6 relate to alleged offending against V1, while charges 7 and 8 involve V2.

9 Charge 1 is based upon events said to have occurred between 23 September 1981 and 23 September 1983. During this period V1 (according to him) had been sleeping on the couch in the living room at his grandparent's house. He was awakened during the night to find his penis in the appellant's mouth. He was afraid, and tried to move his hips and body away, but the appellant 'sort of just forced me back'.[2] The episode only concluded when, having pulled V1's pants into their proper position, the appellant left the immediate scene.

10 There was evidence, admitted as tendency and coincidence evidence and as setting the context in which the charged acts were to be viewed, that incidents of a more or less similar nature occurred repeatedly over the years, although they were not the subject of specific charges. There was also evidence, given by V1, about his age at the time of the incident giving rise to the first charge. According to him, he 'would have been about five'[3].

11 All that evidence will require more detailed examination, for it is important for the purposes of this appeal.

12 Other evidence is also important, and for the same reason. It concerns events said to have occurred in the bush of northern Victoria. On 25 January 1985, the appellant joined V1's grandparents in taking possession of a property which, pursuant to a joint arrangement, all three had purchased for recreational purposes near the Murray River. Because the land was then unimproved, or at least had no sleeping quarters, the appellant and V1's family made do with temporary accommodation in a caravan and tents. Later, V1's grandparents built a kit home on the site. On an occasion, said to be between 1 January 1985 and 1 January 1986, which was before construction of the house was complete and when V1 was said to be eight or nine years of age, he was again awakened to find his penis in the appellant's mouth. These events form the basis for charge 2.

13 The events upon which charges 5 and 6 are founded also occurred on the bush property, this time in the lounge area of the newly built house. The prosecution alleges that they occurred on an occasion between 23 September 1988 and 22 September 1990, when V1 was 12 or 13 years of age. On entering the lounge area, the appellant found V1 masturbating. The appellant asked V1 to touch him on the penis, which V1 ultimately did (charge 5). At the same time, the appellant asked to touch V1 on the penis and did so briefly (charge 6).

14 Charge 8, to which the appellant pleaded guilty on his arraignment, involved V2. On an occasion between 29 January 1985 and 28 January 1987, when V2 was between 13 and 15 years old, the appellant masturbated in front of him. Both were at the time in the caravan on the bush block.

15 In addition to the evidence given by the complainants, the jury heard a recording of an interview with the police which took place at the appellant's home on 3 February 2010. In the course of the interview, the appellant repeatedly denied any misbehaviour with V1, but went on to say that 'With [V2] it only ever happened once and never happened again so I'm not disputing that I didn't do anything with [V2].'

16 The appellant did not explain what 'it' was, save to acknowledge that he 'did do something wrong ... I'm not denying it' and that 'one particular night, and I mean one particular night, I was drunk and ... it happened'. When asked where it occurred, he responded 'in Melbourne'. The victim was V2, who 'probably might have been maybe 10, 12, something like that.'

17 On 2 February 2012, Maxwell P granted leave to appeal against conviction on the following grounds:

Ground 1

The verdict returned in respect to charge 1 is unsafe and unsatisfactory and is a verdict that was not open to the jury in the circumstances of this case.

Ground 2

The verdict of guilty in respect of charge 2 is unsafe and unsatisfactory as it is a verdict that was not open to the jury on the facts that were presented in the case.

Ground 3

The learned trial judge erred at law in allowing evidence of tendency in respect of [V2] to be used in respect of the charges that related to [V1].

18 His Honour also granted leave to appeal against sentence on the following grounds:

Ground 1

The sentencing judge erred at law in failing to acknowledge the less seriousness of the sexual penetration as alleged in this case compared to other modes of sexual penetration as provided for in the Crimes Act.

Ground 2

The sentencing judge erred at law in finding that the Accused had not shown remorse in respect of his actions towards [V2] and in doing so had caused himself to impose a sentence which was higher than that which was appropriate in the circumstances.

Ground 3

The sentencing judge erred at law in failing to acknowledge the utility of the plea of guilty in respect of charge 8.

Ground 4

The sentencing judge erred at law in imposing excessive sentences and accumulation [sic] in respect to charges 5 and 8.

Conviction - Ground 1 - unsafe and unsatisfactory verdict on charge 1

19 The first charge on the indictment is that, in a Melbourne suburb between 23 September 1981 and the equivalent date in 1983, the appellant 'took part in an act of sexual penetration with [V1] a child under 10 years in that he introduced the penis of [V1] into his mouth.' Under the sub-heading 'Statement of Offence', the indictment continues 'Sexual penetration of child under 10 years contrary to s 47(1) of the Crimes Act 1958.'

20 The 'between dates' within which the offence was allegedly committed is important if one of the issues is whether the victim was under the specified age. That was not an issue in this case. Indeed, one aspect of the defence (which, in substance, was a denial of any discreditable behaviour) was that, if there were any such behaviour, it occurred when V1 was well under the age of five. What was in issue was whether the alleged offence, which was a creature of statute, and introduced into the Crimes Act on 1 March 1981, was in existence at the time when, according to the Crown, it was committed.

21 Among all the statutes presently in force in Victoria, the Crimes Act occupies an especially venerable place. Over the years since its birth, its changing personality has reflected the changes in Victorian society, to the extent that a study of the innumerable Parliamentary contributions to its growth and development would yield a rich harvest for the social historian. Some conception of its fertility as an historical lodestar can be gleaned from the fact that the table of amendments to be found in reprint no. 23 (incorporating amendments as at 1 April 2012) occupies 26 pages.

22 The history of s 47 is, in microcosm, a reflection of the history of the entire Act. And although this is neither the time nor the place to recount that history, the first ground of appeal is such as to make necessary some reference to it.

23 When first enacted, the section dealt with attempts, or assaults with intent, carnally to know 'any girl under the age of ten years'. Sexual assaults on boys were something with which the Crimes Act was not then specifically concerned; they were caught only by the common law. Section 37 of the Act, which provided for the maximum penalty for both assault occasioning actual bodily harm (imprisonment for four years) and common assault (imprisonment for two years), made no distinction between the ages or the sex of victims, or between sexual or other assaults. The only specifically sexual offence which applied (more or less) equally to male and female victims was 'the abominable crime of buggery', for which s 68 provided a maximum penalty of 20 years' imprisonment.

24 Statutory recognition of sexual offences specifically committed upon male victims came with the enactment of the Crimes (Amendment) Act 1967. Among the amendments effected by this Act was the insertion, as of 17 March 1967, of sub-s (3A) into s 68 of the principal Act. The new sub-section provided that:

Whosoever unlawfully and indecently assaults any male person shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than five years.

25 Sub-section (3A) survived in that form until the enactment of the Crimes (Sexual Offences) Act 1980. This Act came into operation on 1 March 1981, a date of importance in this appeal. The Crown alleges that the offence with which charge 1 is concerned was committed after 23 September that year and before 23 September 1983. In other words, according to the prosecution, that offence was committed, at the earliest, about six months after the Crimes (Sexual Offences) Act 1980 took effect - and was thus caught by its provisions.

26 Among other things, the new Act inserted a new subdivision (Subdivision (8A), entitled 'Sexual Offences against Young Persons') into Division I ('Offences against the Person') of Part 1 of the principal Act. It also replaced the former s 47 and its specification of the penalty for attempting, or assaulting with intent, 'unlawfully and carnally to know and abuse any girl under the age of ten years'. The new s 47 provided, by sub-s (1), that:

A person who takes part in an act of sexual penetration with a child under the age of ten years is guilty of an indictable offence and liable to imprisonment for a term of not more than twenty years.

27 These amendments had important implications for the appellant; and they ensured that, in this case, 1 March 1981 became a very significant date. Assuming that the appellant did commit fellatio on V1 as the prosecution claims, but assuming also that the relevant incident took place before the Crimes (Sexual Offences) Act came into operation, then the appellant was and is, pursuant to s 68(3A) as it was before 1 March, guilty of unlawfully and indecently assaulting a male person. As I have recorded above, this carried a maximum sentence of five years' imprisonment. If, on the other hand, the act of fellatio occurred after 1 March 1981 but before V1 turned ten, the offence became one of sexually penetrating a child under that age, for which the maximum penalty was 20 years in prison.

28 The indictment alleged, and the prosecution contends, that the events which gave rise to the first charge occurred after 1 March 1981 - indeed, after 23 September that year. Such an approach by the Crown was necessary, of course, because the charge was that the appellant had, contrary to s 47(1) of the Crimes Act (in the terms in which, after 1 March 1981, that section was framed), taken part in an act of sexual penetration with V1, a child under ten years. The trial was conducted on the basis that, before 1 March, this offence was not known to the law of this State.

29 Neither it was. It did not and does not follow, however, that - either before or after 1 March 1981 - adults could with impunity engage in fellatio with very young boys.

30 This proposition is so obvious that it ought to have informed the entirety of the Crown's approach to the first charge. Unfortunately it did not. Inexplicably, neither the Crown nor the defence dealt appropriately in their approach to their trial briefs with what on the evidence available before the trial ought to have been appreciated as a real possibility - that the Crown might prove all the ingredients of the offence except the allegation that the relevant acts were committed after the coming into operation of the regime established by the Crimes (Sexual Offences) Act 1980.

31 When the trial judge pointed out that, before March 1981 'to suck the penis of a four year old boy was a crime'[4], counsel for the appellant agreed, though he could not, it seems, identify that crime with any more precision than to say '[i]ndecent assault, gross indecency, something like that.' His Honour then asked whether, if the jury had no doubt that 'the event occurred' they would be 'entitled to return a verdict of whatever the provision is'. Counsel for the appellant responded: 'No, I don't see it that way at all, your Honour.'[5]

32 The correct answer was to be found in s 2 of the Crimes (Sexual Offences) Act 1980. This section has two subsections which together make clear provision for offences committed whether before or after the 1980 Act came into force:

(1) The provisions of the Principal Act [the Crimes Act 1958] as in force immediately prior to the commencement of this Act apply to and with respect to offences against the Principal Act as so in force committed or alleged to have been committed before the commencement of this Act.

(2) The provisions of the Principal Act as amended by this Act apply to and with respect to offences against the Principal Act as so amended committed or alleged to have been committed on or after the commencement of this Act.

33 The judge's attention not having been drawn to s 2 of the Crimes (Sexual Offences) Act, his Honour turned his mind to the possibility of an alternative charge. Counsel for the appellant told his Honour that no such possibility was available. Rightly, the judge could not accept this. The issue, he said in effect, was whether the appellant committed fellatio on V1. If he did, his Honour continued, 'then he's guilty of a crime. There's nothing else, is there?' Counsel for the appellant responded: 'I'd argue quite the contrary'.[6]

34 If his Honour was becoming somewhat frustrated at this point, the transcript does no more than hint at it. But the judge did say that guesswork was inappropriate, and that the Court 'should have the legislation that applied at the time. You don't know it, but [counsel for the Crown] probably does.' Then, turning to the prosecutor, his Honour asked: 'What would the offence be if he [V1] were three years old?'[7]

35 Counsel for the Crown answered this question appropriately by directing his Honour's attention to s 68(3A) as it was immediately before 1 March 1981. But when the judge asked whether the Crown sought to amend the indictment, he was told that the Crown did not. His Honour's response was to announce that, in those circumstances, he would not leave any alternatives to the jury.[8]

36 The Crown's position amounted to a failure of its duty to assist the Court. I do not wish by saying this to attribute blame to the prosecutor, because she was acting on instructions. But the approach she was told to take was clearly inadequate. His Honour was not informed that s 239 of the Criminal Procedure Act 2009 (which for relevant purposes came into operation on 1 January 2010, and therefore well before the trial) provided for the circumstance, a distinct possibility in this case, that the jury might be satisfied beyond reasonable doubt that the appellant had engaged in fellatio with V1 - but not be satisfied to the requisite standard that he did so after 1 March 1981. If that were the position at which the jury arrived, s 239 would allow them to find the appellant guilty of the 'predecessor' offence; the offence, that is, for which the former s 68(3A) made provision. Section 239(1) reads as follows:

(1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.

37 In this case, the allegations in the indictment impliedly amounted to or included an allegation of another offence (unlawfully and indecently assaulting a male person) that was within the jurisdiction of the court. The jury ought therefore to have been instructed by the judge that, if they found the relevant criminal behaviour proved, but were not satisfied that it took place after the coming into operation, on 1 March 1981, of the amended s 47(1), then they might convict the appellant of such unlawful and indecent assault.

38 The jury found the appellant guilty of the offence created by the Crimes (Sexual Offences) Act. He now complains that that verdict is unsafe and unsatisfactory, and is a verdict that was not open to the jury to reach. It is unsafe and unsatisfactory, he claims, because the jury could not be satisfied beyond reasonable doubt that the offence occurred after 1 March 1981.

39 In these circumstances it is necessary to examine the evidence concerning the date on which the appellant, as the jury by its verdict of guilty must have found, did take part, with V1, in an act of sexual penetration. That evidence is far from unequivocally supportive of the Crown's position.

40 V1's evidence on this issue was that, at the relevant time, he was sleeping in his pyjamas on 'a green couch in the lounge room at my Nan's, and I would have been about five.' He turned five in September 1981. This, to reiterate, was a little more than six months after the coming into effect of the 1981 amendments to the Crimes Act.

41 V1 was cross examined before his grandmother was called to give evidence. When she came to the witness box she said that V1 commenced to live with his grandparents when he was about three years' old. He had his own bedroom, and bed; she could never remember him sleeping on the couch.

42 V1 turned three in September 1979. This, of course, was well before the relevant amendments to s 47 were effected. His grandmother's evidence did not, therefore, strengthen the Crown's position. That position was not improved by V1's answer to a question put to him by counsel for the appellant. When asked whether it was possible that he was four years old at the time of the alleged assault, V1 disagreed, but qualified the basis for that disagreement by adding:

Because ... the thing is, when kids are so young, they can't remember back to that age ... I suppose. That's what I've always been taught, or know.[9]

43 It was put to the appellant in cross examination that the couch served as his bed because he was merely spending a night with his grandparents before he came to live permanently with them. He responded to the effect that this was not necessarily so. The following exchange later took place:

Q: This instance that you described, what you say is the first occasion when you've been sexually assaulted by [the appellant], can I ask you again, I know I've asked you before, in light of what we've talked about, your certainty as to your age, that it was about five or six?

A: Yes, that's correct.

Q: You're still certain about that?

A: Around that time, yep.

Q: I'm really asking about your degree of certainty that you were either five or six years of age?

A: That's what I've measured it out to be, yeah, yep.

Q: Would you concede - what I'd understand will be your grandmother's evidence that you commenced residing at that house from when you were two or three, would you concede that that's possible?

A: Yeah, it could be, I'm - I don't know. I don't know.

...

Q: Might it be an explanation as to why you were on the couch asleep, the sleeping on the couch in ... pyjamas would indicate it was before you had a room of your own, before you were residing there?

A: I'm not sure. I don't know that one.

Q: Is it possible that this event was when you were three or four, something like that?

A: I wouldn't think so. I wouldn't think a kid could remember back that far, no.[10]

44 The Crown submits that V1 was unshaken in his evidence that he was five or six at the time of the charge 1 events. Once the jury accepted the credibility and accuracy of V1 - as, given the guilty verdict, it must have done - there can be no basis for a reasonable doubt about his age. And (the submission continued) it follows that the earliest date on which the offence could have taken place was after 1 March 1981.

45 I reject this submission. The appellant was himself uncertain about his age at the relevant time. For a period after they retired to consider their verdicts the jury shared that doubt, because they returned with a question, which was: 'Is it possible to find certainty in a date where no such certainty exists in the evidence and by the witnesses' own admissions?'[11] The judge answered the question by rehearsing with the jury the instructions he had earlier given them about the drawing of inferences. They subsequently returned a verdict of guilty on charge 1.

46 If V1 was uncertain about his age on the occasion of the molestation in question, and other evidence points to his being younger than his estimate, this Court must itself doubt that he was as old as he suggested. In these circumstances, the following passage from the majority judgment in M v The Queen[12] is apposite:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[13]

47 M v The Queen was considered by the High Court in Libke v The Queen.[14] In the latter case, Hayne J (with whom Gleeson CJ and Heydon J agreed) accepted that, as was held by the majority in the earlier case, the question for an appellate court in the relevant circumstances is whether it is open to the jury to be satisfied of guilt beyond reasonable doubt. Hayne J continued:

... which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[15] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[16]

48 In my opinion, the jury's advantage in seeing and hearing the evidence is in the present circumstances irrelevant. It also seems to me that the jury ought to, and (to adopt the language of Hayne J) must have entertained a doubt about whether the impugned conduct occurred after 1 March 1981 - that is, after the coming into operation of the Crimes (Sexual Offences) Act 1980. Indeed, the weight of the evidence is that the impugned conduct took place before that date. I would therefore uphold the first ground of appeal, and set aside the appellant's conviction on charge 1.

49 That, however, does not resolve all the issues raised by the first ground of appeal. No matter when the appellant engaged in fellatio with V1 on the occasion which gave rise to charge 1, the jury were entitled to conclude beyond reasonable doubt that he did commit that offence; and he thus committed a crime. Given that the Crown could not prove beyond reasonable doubt that that the offence was committed after 1 March 1981, the jury would have been entitled to conclude that it took place before that date; and therefore, because sub-s 68(3A) came into operation before V1 was born, the relevant event must have occurred during its operative period.

50 In these circumstances, s 277(1)(c) of the Criminal Procedure Act 2009 requires this Court to enter a judgment of conviction under s 68(3A) of the Crimes Act 1958 as it was at the time the offence under charge 1 was committed. So far as is presently relevant, s 277 reads:

(1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (offence A) and must -

(i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury must have been satisfied of facts that prove the appellant was guilty of offence B -

enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or

(d) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is not satisfied as required by paragraph (c)(ii), order a new trial for offence B; ...

51 For the reasons given above, the appellant could have been found guilty of some other offence (namely, unlawfully and indecently assaulting a male person); and in my opinion the jury must have been satisfied of facts that prove the appellant was guilty of that offence. Given that that is so, the Court must enter a judgment of conviction of the unlawful and indecent assault of V1 pursuant to s 68(3A). As I have noted above, the maximum penalty for such an offence is five years' imprisonment.

52 It was argued on behalf of the appellant before the trial judge that the jury could not have been satisfied beyond reasonable doubt that the offending conduct occurred either before or after 1981. That being so (the submission continued) the appellant could not be convicted either of an offence under s 68(3A) or of an offence under s 47(1).

53 I reject this argument. It is true that, if the appellant were to be convicted of an offence against s 47(1), and thus exposed to the very heavy maximum penalty for which that sub-section provided, the Crown was required to prove beyond reasonable doubt that the offence giving rise to charge 1 was committed after 1 March 1981. But time was not of the essence if the offence was against s 68(3A). The argument for the appellant amounts to the contention that the transitional provisions of s 2 of the Crimes (Sexual Offences) Act 1980 do not explicitly cover the present exigency, because the relevant offence was not (to adopt the words of the section) 'alleged to have been committed before the commencement of this Act'; and the jury made no finding that it was actually 'committed before the commencement of this Act'. Nevertheless, it must have been Parliament's intention that - in such circumstances as obtained in this case after the jury were satisfied to the requisite degree that the appellant had committed fellatio upon V1 - a conviction for an offence against s 68(3A) was not merely open, but required.

54 It follows that, although ground 1 is made out, and the conviction pursuant to s 47(1) must be set aside, judgment of conviction of an offence against s 68(3A) must be entered and the appellant re-sentenced.

55 I shall return to the question of penalty later in this judgment.

Conviction - Ground 2 -unsafe and unsatisfactory verdict on charge 2

56 By contrast to the circumstances which obtained in relation to charge 1, where the contest of central relevance to this appeal was whether s 47(1) or s 68(3A) applied, the age of V1 was a major issue in dispute in relation to charge 2. He turned ten in September 1986. The appellant is charged with an act of sexual penetration with V1, which act occurred in a tent on the bush block before V1's tenth birthday.

57 Possession of the property was taken on 25 January 1985. It follows that, if the prosecution case is to succeed, the Crown must satisfy the jury beyond reasonable doubt that the offending behaviour occurred within the relatively narrow window of 20 months between the assumption of possession and the day V1 reached the age of ten.

58 Another event is of significance in this context. Overnight visits to the property initially included nights under canvas or in a caravan because, until a house was constructed, there was no other provision for sleeping under cover. On any view of the evidence, however, the house was not habitable within 20 months after possession of the property was obtained; according to V1 himself, the intervening period was two or three years. In his evidence in chief, he said that 'we had a caravan put on the property ... and because all the relatives used to go up so we used to put the tents out as well.' [17] He agreed that this was before the house was built; and, when asked 'how long it was like that before the house went up' he answered: 'I'd say two or three years, I'd think.'[18] He added, a little later in his evidence in chief, that 'when the house was built' he 'would have been ten ... ten or eleven, something like that'.[19]

59 His grandmother gave significantly different evidence. Under cross examination, she agreed that she moved with her husband to live to live on the bush block in 1987, and that for the next two years they occupied the caravan until the house was completed in 'about 1989'.[20] By then, V1 was in his thirteenth year.

60 On the evidence both of V1 and his grandmother, V1 was still sleeping in a tent on the property after his tenth birthday. When in cross examination he was asked what year the offence took place, he said he did not know. And, likewise, he could not give an estimate of the time between the taking of possession of the bush block and the occurrence of the impugned conduct. The closest he came to verifying the prosecution case was to say, under cross examination, that he 'would have been eight, about eight.'[21]

61 It is in this context that the appellant submits that the Crown has failed to prove beyond reasonable doubt that V1 was under the age of 10 when the acts forming the basis of charge 2 were committed.

62 I agree. For the reasons given in my examination of the evidence in relation to the first ground of appeal, it seems to me that this ground too must succeed. The uncertainty of the principal Crown witness on this point was necessarily bound to be reflected in the jury not being satisfied beyond reasonable doubt that V1 was a child under the age of ten years when the offence was committed.

63 In these circumstances, the passages from the High Court's judgments in M v The Queen and Libke v The Queen to which I earlier referred require this Court to set aside the appellant's conviction for an offence against s 47(1) of the Crimes Act as in force at the time the offence was committed.

64 As with the first ground of appeal, however, more needs to be said. Although the jury ought not to have convicted the appellant of the sexual penetration of V1 before his tenth birthday, they must have been satisfied that the Crown had established to the requisite standard all the elements of the offence of taking part in an act of sexual penetration with a person who is of or above the age of ten years but under the age of 16 years and to whom the appellant was not married. Section 48(1) of the Crimes Act, in the form it assumed until its amendment by the Crimes (Sexual Offences) Act 1991 (No 8/1991), proscribed that conduct, and provided a maximum penalty for it: imprisonment for ten years.

65 It is in my opinion accordingly necessary for this Court to make corresponding orders to those proposed in relation to the first charge. I would, therefore, set aside the appellant's conviction on charge 2 and, pursuant to s 277 of the Criminal Procedure Act 2009, enter judgment of conviction of an offence against s 48(1) of the Crimes Act as that section was in force between 1 March 1981 and 5 August 1991; and a sentence must be imposed upon the appellant which cannot be more severe than a term of ten years' imprisonment - that being the maximum penalty prescribed for an offence against that section. I shall return, later in this judgment, to the question of the appropriate punishment.

Conviction - Ground 3 - Use of tendency evidence

66 The Evidence Act 2008 provides, by s 97, that evidence of a tendency that a person has or had is not admissible to prove that that person has or had a tendency to act in a particular way, or to have a particular state of mind, unless two preconditions are met. First, reasonable notice must be given, in writing, to each other party (in this case, to the appellant); and, secondly, the court must think that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence (in this case, the Crown), have significant probative value.

67 The prosecution sought to comply with the requirement to give notice by serving upon the appellant a 'tendency notice' which purported to show that the appellant had 'a sexual interest in young males who are available to him by close association with parents [sic] of the complainants and the [appellant] was willing to act on that sexual interest by engaging in sexual acts with [V1] and [V2] and did so in various ways outlined below.'[22] The particulars of conduct which then followed made no reference to the admissions made to the police during his interview with them at his home on 3 February 2010; but they did include statements in the depositions of both complainants describing the acts constituting the eight charges preferred against the appellant, as well as a number of uncharged acts, namely:

• evidence from V1 that the appellant touched V1's penis through his pants under the table on many occasions (item 2);
• evidence from V2 that the appellant put his penis in V2's mouth while V2 was asleep (item 8);
• evidence from V1 that the appellant discussed ejaculation with V1 and asked V1 to masturbate him (item 10);
• evidence from V2 that the appellant asked V2 to put his mouth around the appellant's penis, and when V2 refused, said 'you used to do it when you were younger' (item 11); and
• evidence from V2 that in response to a text message from V2 that what the appellant had done to him 'had destroyed his life', the appellant responded with a text which said: 'sorry it happened to me as a kid' (item 12).

68 Because the tendency notice did not include a reference to the admissions made to the police, defence counsel objected to prosecution reliance on them. Ultimately, an amended tendency notice was filed. This did include reference to those admissions, as set out in the notice and replicated below:

'I'm not disputing that I didn't do anything with [V2]' Q69

'Cos I realised what I did was wrong at the time but there were different circumstances ... [I] used to be drunk all the time, you know, back ... when [I was] 20 years old and ... I didn't know anything about the law.' Q86

'I did do something wrong. You know, sort of thing, so I'm not denying it but you know.' Q 88

'No in Melbourne.' Q89[23]

69 It can be seen that these exchanges, as reproduced in the notice, do not identify to what it is that the appellant is admitting, save that what he refers to as 'it' was 'wrong', and was committed with V2 in Melbourne, not at the bush block.

70 Recourse to the transcript of the police interview does not assist in ascertaining to what conduct 'it' referred. The transcript does, however, reveal that the appellant remembered V2's age, at the time at which he admittedly committed an offence against that child, as 'probably ... maybe ten, twelve, something like that'; and, in the context of being interviewed about allegations of 'sexual offences from the early 1980's' concerning the two complainants, when asked whether he disputed 'this sort of stuff happening in the early 80's', the appellant is recorded as saying:

One person, yes.

...

With [V2] it only ever happened once and never happened again so I'm not disputing that I didn't do anything with [V2].[24]

71 When asked for details about what happened with V2, the appellant queried whether he had to reply without first having access to a solicitor. He was rightly told that he did not.

72 By ground 3 of his grounds of appeal against conviction, the appellant seeks to contend that the trial judge 'erred at law in allowing evidence of tendency in respect of [V2] to be used in respect of the charges that related to [V1].' Expressed as cryptically as this, the ground is unhelpful. The Crown wished to adduce evidence of the appellant's tendency to act in a particular way in respect of V2 in order to assist in proving that the appellant had a tendency to act in a particular way in respect of V1. This is not of itself necessarily impermissible, because tendency evidence may well be cross-admissible; and the ground of appeal gives no indication of the reasons why it should not have been cross-admissible in this case.

73 The appellant's position was, however, made tolerably clear in the written case prepared on his behalf for this appeal. As there appears, ground 3 is based upon, and limited to, the admissions made by the appellant to the police during his interview with them at his home on 3 February 2010. The appellant maintains that what he then said about his conduct with V2 should have gone to the jury only as admissions of misconduct against V2. It should not have been put before the jury as tendency evidence relevant to the charges in respect of which V1 was the complainant. The appellant's written case puts the issue in the following terms:

At the time of the arrest of the [appellant] by police, he made admissions ... that he had in the past sexually assaulted [V2] but he specifically denied having ever sexually assaulted [V1]. ... The argument is that the prior behaviour of the [appellant] in respect to [V2] as was admitted by him was indicative of a prior sexual interest in [V2] and a preparedness to act on that. This interest and preparedness to act upon the interest cannot properly be found relevant in the matters where the complainant is [V1]. This is particularly so when the suspect makes admissions in respect to the complaints of [V2] but specifically denies [sic] in respect of the complaints of [V1].

74 In the course of the police interview, the appellant said that '[w]ith [V2] it only ever happened once and never happened again.' He added that 'one particular night, and I mean one particular night, I was drunk and ... it happened'.

75 V1 was the victim of the conduct which gave rise to the first charge. He was then, if the contentions put by the appellant at trial are correct, less than five years old. On any view, he was well under ten. An admission that, on one occasion, an offender - when drunk - was guilty of a sexual misbehaviour with a boy of somewhere between ten and twelve could not, in my opinion, have significant - if any - probative value when the question is the tendency in that offender to engage in allegedly sexual misconduct, whether or not more particularly specified, with a different boy. This is especially so in relation to that offence (resulting in the first charge) in which the younger child is said to have been, at the time of the offence, half the age of the admitted victim. This consideration does not apply to charges 2, 5 and 6, because they encompassed offending with V1 when he was about the same age as was V2 when V2 was the victim (charge 8).

76 The probative weight of tendency evidence is always important. This is so because s 97 of the Evidence Act requires that tendency evidence have significant probative value before it qualifies as admissible; while if it passes that test, s 101(2) provides that tendency evidence about an accused that is adduced by the prosecution cannot be used against that accused unless its probative value substantially outweighs any prejudicial effect it may have on him or her.

77 The prejudicial effect of evidence adduced by the prosecution is to be assessed against the likelihood that the jury will use it against the accused in impermissible ways. In my opinion, the appellant's admission (in effect: 'I offended once, against a different child, and did so when drunk') has no probative value in relation to the offences in which V1 was the victim; and even if I am wrong about that, any use by the jury of it as tendency evidence would in my opinion be impermissible because its probative value in relation to V1 is outweighed by its prejudicial effect.

78 In determining whether the trial judge erred in admitting the evidence pursuant to s 97, this Court has approached the exercise on the basis that it is for it to decide for itself whether the relevant evidence was admissible, rather than engage in a review of the trial judge's decision in light of the principles enunciated in House v The King.[25] But, as Redlich JA noted in JLS v The Queen,[26] there has been some divergence of views in NSW; and the issue - in that State at least - remains unresolved. In R v Zhang, Simpson J (with whom Buddin J agreed) described the task of the trial judge in determining the admissibility of evidence as either tendency evidence under s 97 or as coincidence evidence under s 98 as 'essentially an evaluative and predictive one' on which reasonable minds may differ. As such, 'each determination may be reviewed at appellate level only in accordance with the principles stated in House.'[27] However, in Zhang Basten JA dissented. He said:

House was concerned with the basis upon which an appellate court might interfere with a particular exercise of the discretionary power of a sentencing judge. However, there is a distinction in principle, even if the dividing line may be blurred in particular circumstances, between the exercise of a discretionary power and the making of a finding of fact which involves a level of "evaluation and judgment": see, in a different context, Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [10] ff (Gleeson CJ, Gaudron and Hayne JJ), [115]-[116] (Callinan J). As presently advised, I would take the view that an accused should have no less protection under s 6(1) from an erroneous ruling by a trial judge than that enjoyed by a civil litigant albeit on an appeal by way of rehearing. The correct approach to the exercise of evaluating the evidence should follow that identified in Warren v Coombes (1979) 142 CLR 531.[28]

79 In R v Ford[29] Campbell JA discussed at length the nature of the exercise, and concluded that, at least in respect of the determination under s 97, an appellate court is in as good a position as a trial judge to make the decisions necessary.[30]

80 As noted above, this Court has expressed a preference for the view of Basten JA (and of Underwood CJ in L v Tasmania[31]). Subsequent decisions reflect that approach.[32] Professor Odgers also supports the view taken by Basten JA.[33] In any event, it seems to me that, whichever test is adopted, the material contained in the police interview should not have been admitted.

81 An appeal to this Court against conviction must be allowed if the appellant satisfies the Court that: (a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or (b) if, as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or (c) for any other reason there has been a substantial miscarriage of justice.[34] In any other case, the Court must dismiss the appeal.[35]

82 In my opinion, the wrongful admission of the impugned 'tendency evidence' did not result in a substantial miscarriage of justice. Much other tendency evidence, which is not the subject of complaint on this appeal, was admitted. The material derived from the police interview was admissible in relation to charge 7, and therefore was properly before the jury as an admission. The judge gave it no separate attention in his charge, but rather placed it - as the tendency notice had done - among the entirety of the tendency evidence. His Honour correctly told the jury that they could not use this evidence to conclude that the appellant was the kind of person who committed the offences with which he had been charged, and further told them that this evidence did not of itself prove anything. At best, it could be used as part of the evidence called by the Crown, and - if it was accepted by the jury - as adding strength to the Crown case.

83 These directions were correct, save that the police interview should not have formed any part of the tendency evidence. But its inclusion among that material did not cause a substantial miscarriage of justice. Ground 3 of the grounds of appeal against conviction is, therefore, not made out.

84 Because the appellant's appeal against conviction has resulted in his being convicted of two offences each of which carries a lesser maximum sentence than those for which he was convicted by the jury, he must be re-sentenced. He was imprisoned for four years in relation to each of charges 1 and 2, where the offence was against s 47(1) of the Crimes Act and where the maximum sentence was 20 years' imprisonment. He should have been convicted and, as a result of this appeal stands convicted, of an offence against s 68(3A) of the Crimes Act, where the maximum sentence was five years' imprisonment (charge 1); and of an offence against s 48(1) of that Act, where the maximum sentence was ten years' imprisonment (charge 2).

85 The possibility that this Court might exercise the power given to it by s 277 of the Criminal Procedure Act 2009 was raised with counsel for the appellant during the hearing of the appeal. Counsel informed the Court that, should the possibility become the reality, he would rely on the appellant's submissions on the plea, together with the written outline of submissions on sentence as prepared for this appeal - but with a greater emphasis on the element of delay, because since his last episode of offending the appellant has undergone a program designed to suppress his sexual proclivities, and has not re-offended. I bear those matters in mind.

86 The circumstances surrounding the acts of fellatio which gave rise to, respectively, charges 1 and 2, have already been briefly described. No greater detail is necessary or helpful. Each was an act of fellatio committed on a boy who had been asleep and who was awakened by the commission the offence. Charges 5 and 6 had their origins in a meeting between the appellant and V1 at the bush block. V1 was 12 or 13 years old. He entered the house erected on the block by his grandparents. The appellant was masturbating himself in the lounge. He asked V1 to touch him on the penis, and (in the words of the judge) 'ultimately [V1] did that'[36] (charge 5). The appellant also touched V1's penis 'briefly' (charge 6). His Honour, in his reasons for sentence, continued:

At the same time you asked to touch him on the penis and you did that briefly, although I will refer to this circumstance shortly in more detail.

...

It seems to me that [in his evidence V1] was talking about you touching him on his exposed penis as opposed to over his clothes. The question is can I be satisfied of this beyond reasonable doubt? In the end I cannot, and I give the benefit of the doubt to you.[37]

87 The appellant admitted to masturbating in front of V2 when in the caravan on the bush property (charge 8).

88 Both V1 and V2 gave evidence, which the judge for sentencing purposes accepted, that the incidents for which the appellant was convicted were not isolated. Rather, (in relation to V1) they 'were repeated, both [in Melbourne] and [at the bush] block through the years'[38] and (in relation to V2) were accompanied by 'other assaults on him, both [in Melbourne] and [at the bush block].'[39]

89 His Honour rightly viewed the sexual molestation by an adult of young boys as acts of serious criminality. In the appellant's case, they also involved a breach of trust, given the friendship between the grandparents and the appellant, and given that he abused that friendship by using it as a means of preying upon their grandsons.

90 The victim impact statement of each cousin was made an exhibit on the hearing of the plea. I have read them both. Each victim speaks eloquently of what the judge described as 'the corrosive effect of sexual abuse' upon that victim.[40] There is doubtless the possibility that inherent character flaws were partly responsible for the personal difficulties attributed to the appellant's predatory behaviour. But, in the nature of things, one cannot from this distance say whether some allowance should or should not be made for that. What is clear is that the judge was justified in concluding that both victims had suffered very considerably from their encounters with the appellant.

91 The appellant turned 60 on 19 August this year. In 1993 he was convicted of three counts of an indecent assault upon a child under 16; a six-months suspended sentence was imposed, and he was also placed on a community-based order. This included a sex offenders' program, which he completed. He has not offended since. He has a good work record, and has paid off the mortgage on his home.

92 The judge considered the effect of the plea of guilty to charge 8. It was, his Honour noted, made 'at the last possible moment.'[41] It nevertheless had utilitarian value, and credit must be given for this,[42] although his Honour found that there was no remorse for any of the offences.

93 This finding is challenged on this appeal. I think that the challenge has been made good. It is based on the proposition that, in his interview with the police, the appellant did express some remorse - although this was not supported by any evidence given by him (or anybody else) on the plea. I think that, in arriving at an appropriate sentence, allowance should be made for this. At the same time, and for the reasons I expressed in Phillips v The Queen,[43] I think it appropriate that an offender who wishes to receive the very significant sentencing discount which genuine remorse will ordinarily attract should carry the burden of satisfying the sentencing court that, on the balance of probabilities, such remorse exists. In the absence of concessions from the Crown, that burden can only be discharged by the calling of satisfactory evidence.

94 I accept that the completion of the sex offenders' program, and the absence of any further offending in the considerable period since that program was completed, indicate that there are reasonably good prospects for the appellant's rehabilitation.

95 In this context, it is relevant that, if the appellant is sentenced to a term of imprisonment for any two of the offences for which he has been convicted, he must be sentenced as a serious sexual offender in relation to any other offences for which he is subsequently sentenced.[44] The Court is further required, by s 6D of the Sentencing Act 1991, to regard the protection of the community as the principal purpose for which the sentence is imposed and, unless the Court otherwise directs, every sentence of imprisonment must be served cumulatively on any uncompleted sentence or sentences.[45]

96 It is impossible now to ascertain, and therefore to apply, those sentencing practices which were current in the period during which the subject offences were committed. But the denunciation of the conduct involved, and with it the expression of the community's abhorrence of that conduct, remain important, and must to the appropriate extent be reflected in the sentences to be imposed by this Court.

97 I have had regard to each of those principles in coming to the conclusions which I express in what follows.

98 On the first charge, which carries a maximum of five years' imprisonment, I would re-sentence the appellant to 18 months' imprisonment; on the second, which I would make the base sentence and which carries a maximum of ten years' imprisonment, I would impose a term of imprisonment of two years and six months.

99 The appellant complains that the sentences imposed in relation to charges 5 and 8 were manifestly excessive. Although this Court must re-sentence generally, and therefore need not approach this complaint as it would were the appeal limited to an appeal against sentence, I think that there is some substance in the point, when it is viewed against what is likely to have been the then current sentencing practice. I would impose a sentence of 6 months' imprisonment on charge 5, and (allowing for the plea of guilty) 4 months' imprisonment on charge 8.

100 It seems to me that some direction about cumulation should be given. I would order that the appellant serve 6 months of his term in relation to charge 1, two months of his term in relation to charge 5, and one month of his term in relation to charge 8 cumulatively upon the sentence imposed in respect of charge 2. I see no reason to interfere with the sentence previously imposed in respect of charge 6, which was not the subject of challenge on this appeal, and no part of which was ordered to be served cumulatively upon any other sentence.

101 In the result, the head sentence is one of three years and three months' imprisonment. I would direct that the appellant serve two years' imprisonment before being eligible for parole.

102 Pursuant to s 6AAA of the Sentencing Act 1991, I state that, had it not been for his plea of guilty on charge 8, I would have sentenced the appellant to seven months' imprisonment on that charge, with the result that the total effective period of imprisonment that would have been imposed would have been three years and six months. I would not have altered the non-parole period.

[Crimes Act 1958 (Vic) s 68(3A)]

[Crimes Act 1958 (Vic) s 48(1)]

Gross Indecency [Crimes Act 1958 (Vic) s 50(1))

Indecent Assault [Crimes Act 1958 (Vic) s 44(1)]

Gross Indecency [Crimes Act 1958 (Vic) s 50(1))]

In relation charge 8 (the only guilty plea), but for the plea of guilty, the sentence that would have been imposed if convicted of this offence after trial would have been 7 months imprisonment.

The appellant was sentenced pursuant to s 6F of the Sentencing Act 1991 (Vic) as a serious sexual offender in respect of charges 5, 6 and 8.

Pursuant to s 34 of the Sex Offenders Registration Act 2004 (Vic), the length of the reporting period is life.

105 I also agree, for the reasons given by Harper JA, that this appeal should be allowed, and that the appellant be re-sentenced as his Honour proposes.

[1] The appellant was earlier arraigned before a jury panel (on 28 July 2011) but that panel was discharged and he was then re-arraigned.

[12] [1994] HCA 63; (1994) 181 CLR 487 (Mason CJ, Deane, Dawson and Toohey JJ).

[14] [2007] HCA 30; (2007) 230 CLR 559.

[15] Citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3.

[16] [2007] HCA 30; (2007) 230 CLR 559, 596-597 [113]. (Emphasis as in the original). See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA) and The Queen v Nguyen [2010] HCA 38; (2010) 85 ALJR 8 [33].

[22] Document headed 'Notice: Tendency Evidence' dated 24 May 2011.

[23] Tendency Notice, Table B, item 13.

[24] Transcript of police interview (exhibit A), answers to questions 67 and 69. I should note that the version of the transcript provided to this Court is an edited one. It may be that some of the material excised provides greater detail. However, any such material would not have been presented to the jury.

[25] [1936] HCA 40; (1936) 55 CLR 499, 504-505. See PNJ v DPP (2010) 27 VR 146, [16] (Maxwell P, Buchanan and Bongiorno JJA).

[26] (2010) 28 VR 328, [34].

[27] R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 ('Zhang') (Simpson J at [141] with Buddin J agreeing). See also R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308, [36] (Simpson J with whom McClellan CJ at CL agreed; Rothman J did not determine the point, but noted at [168] that the errors of law would in any event have satisfied the test in House v The King).

[28] Zhang [45]. See also L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381, [55] (Underwood CJ) and [86] (Tennant J).

[29] R v Ford [2009] NSWCCA 306 ('Ford').

[31] [2006] TASSC 59; (2006) 15 Tas R 381, [55].

[32] See for example CGL v DPP [2010] VSCA 2010, PNJ v The Queen [2010] VSCA 88, NAM v The Queen [2010] VSCA 95, GBF v The Queen [2010] VSCA 135, KRI v The Queen [2011] VSCA 127, RHB v The Queen [2011] VSCA 295, Wilson v The Queen [2011] VSCA 328, DR v The Queen [2011] VSCA 440.

[33] Stephen Odgers, Uniform Evidence Law in Victoria (Lawbook Co, 2010) [1.3.7050].

[34] Criminal Procedure Act 2009, s 276(1).

[35] Ibid s 276(2).

[42] Phillips v The Queen [2012] VSCA 140.

[44] Sentencing Act 1991, s 6B.

[45] Ibid s 6E.