H R J v The Queen [2011] VSCA 217

CRIMINAL LAW - Sentence - Indecent acts with child under 16 years - Two counts - Total effective sentence of three years and two months' imprisonment with non-parole period of 18 months not manifestly excessive - No error in refusal to suspend sentence - Leave refused.

1 The applicant was convicted by a County Court jury of two counts of committing an indecent act with a child under the age of 16 years. The maximum penalty for each offence was 10 years' imprisonment under s 47(1) of the Crimes Act 1958 as it stood at the relevant time. The victim, who was the next door neighbour of the applicant, was a girl ('X') aged three or four years when the offences occurred between 1994 and 1996. The two offences were committed on the same occasion and consisted of the applicant rubbing X's inner thigh (count 4) and licking her vagina (count 5). The applicant was acquitted of counts 1, 2 and 3 on the presentment, which alleged two counts of sexual penetration and one count of committing an indecent act with a child under the age of 16 years, in respect of X's older sister ('Y') who was seven or eight years old in 1992 or 1993 when the offences were alleged to have occurred.

2 Following a plea in mitigation, the applicant was sentenced on 11 August 2010 to six months' imprisonment on count 4 and three years' imprisonment on count 5, with two months of the former sentence to be served cumulatively on the latter, producing a total effective sentence of three years and two months' imprisonment. The judge fixed a non-parole period of eighteen months.

3 The applicant now seeks leave to appeal against conviction and sentence.

4 It is necessary to refer to some background matters.

5 The applicant initially faced a presentment containing 25 counts of sexual offending in respect of X and Y. The Crown sought to lead tendency and coincidence evidence. The judge ruled that much of the proposed evidence was inadmissible, and ordered severance. Consequently, there were three separate presentments and three trials. The present application relates only to the trial on the first presentment.[1]

6 As mentioned, the presentment alleged three counts in respect of Y and two counts in respect of X. These five allegations regarding X and Y were joined on the same presentment in circumstances where the five incidents were alleged to have occurred on two separate occasions (one in respect of X and one in respect of Y), where on those occasions the applicant asked each complainant to try on a blue dress. The judge ruled that evidence from each complainant as to the circumstances of them trying on the blue dress and the events that followed was cross-admissible as coincidence evidence under s 98 of the Evidence Act 2008.

7 As to the circumstances of the offending against X, it is sufficient to set out the following passage from the judge's sentencing remarks:

... [the applicant] was a neighbour of [X's] family from approximately 1992. As part of that relationship there was a situation of open access into [the applicant's] home whereby the children [in X's family] were given free access, no doubt on the basis of an understanding that normal neighbourly relationships would take place.

Insofar as the specifics of Count 4, X and [her brother D] had both apparently been shopping with [the applicant] earlier in the day. X had come back to [the applicant's] premises and apparently had a shower. Thereafter she was asked to go into his bedroom and a blue dress was put upon her. She indicated that she did not want to do this and was told that she would get into trouble with her parents if she did not do it.

She was thereafter, after she had the dress put on her, placed on the bed and her inner thighs were rubbed by [the applicant]. Those circumstances make up Count 4.

In cross-examination she said that rubbing lasted for some minutes and it was indeed put to her by [defence] counsel that these matters never happened and [X] maintained they did.

In regard to Count 5, this occurred on the same occasion. That is, whilst she was on the bed, her pants were taken off and whilst she was still on the bed with this dress upon her, she was placed in a position where her legs were hanging over the end of the bed. X told the jury that her legs were forced open and [the applicant] thereupon licked her vagina while he was kneeling on the floor. She said that it went on for a few minutes until D came in.

Apparently when D came in, [the applicant] stood up and said to D that he had been looking for a coin which had been dropped at the side of the bed.

D gave evidence before the jury and confirmed that he came in and found his sister in the position as she had indicated to the jury. That is with her laying back on the bed with her legs over the bed. To use D's evidence in the Court, he said that [the applicant] was kneeling in front of her and to use his words 'like a proposal, yet he was looking at the floor.' Again in cross-examination in regard to Count 5, [defence counsel] put to X that these matters never happened. Again, X maintained that they did.

8 It is not necessary to describe the alleged offending against Y (counts 1, 2 and 3 of which the applicant was acquitted) save to note that, in contrast with the offending against X, there was no evidence from D to support Y's allegations.

9 The applicant called no evidence. His record of police interview was tendered in which he denied the complainants' allegations.

10 Following closing addresses and the judge's charge, the jury deliberated for eight hours and 15 minutes before advising that they had reached a unanimous verdict on three counts but could not reach a unanimous decision on the remaining two counts. After discussing the matter with counsel, the learned judge indicated that he would take a verdict on the three decided counts and then give a Black direction (as to majority verdicts) as to the other two counts. The jury then came back to the court and returned a verdict of not guilty to counts 1, 2 and 3. Immediately following these verdicts, a person in the court room reacted; I refer to this below. Immediately thereafter, the judge directed the jury to disregard the incident in the court room, reiterating that they must approach their deliberations intellectually and not on the basis of emotion. The judge then gave a Black direction. The jury deliberated for a further two hours and 15 minutes, before returning majority verdicts of guilty on counts 4 and 5.

1. The verdicts are unsafe and unsatisfactory in that the evidence before the Court related to the recollections of the complainant as to an event that happened when she was three or four years of age, and are therefore inherently unreliable.
2. The learned trial judge erred in that he did not order severance of the trials in respect of the complainants.
3. The learned trial judge erred in taking verdicts on the three counts that the jury were agreed on prior to their further deliberations on the remaining two counts.
4. The learned trial judge failed to adequately direct the jury on how they should disregard the commotion that ensued at the not guilty verdicts in respect of counts 1, 2 and 3.
5. The learned trial judge erred in not discharging the jury from their deliberations on the remaining two counts after the commotion and the excessive behaviour of the complainant's family members, after the verdicts of not guilty in respect of counts 1, 2 and 3.
6. Counsel for the accused failed in his duty to his client by not requesting a discharge of the jury as a result of the commotion to the not guilty verdicts in respect of counts 1, 2 and 3.

12 At the outset, counsel[2] for the applicant stated that his main argument was covered by grounds 3, 4 and 5. He also made a concession on ground 6 to which I refer below. Then, saying nothing as to ground 2, he addressed submissions which at first rolled grounds 3, 4 and 5 together. Notwithstanding, it is convenient to deal with the grounds in their numerical order.

13 Counsel said he did not cavil with the judge's directions. Rather, he submitted that the age of X (three or four years at the relevant time) made her evidence inherently unreliable. I do not accept this submission. The judge directed the jury in the clearest terms that the prosecution case depended on the credibility of the evidence of each complainant in relation to each count and that they had to consider each count separately. In particular, his Honour referred to the delay of 12 to 14 years in X reporting the incidents, and the fact that the passage of time may affect a witness's memory, particularly with very young children. It is thus seen that the issue now complained about was squarely put before the jury as a matter to which they were to have regard in their deliberations. Further, X's evidence did not stand alone but was supported by the evidence of D. That circumstance may readily explain why the jury convicted on counts 4 and 5, but acquitted on the counts where there was no supporting evidence. Ground 1 fails.

14 The applicant's counsel did not mention this ground in his oral submissions. The Court stated that in the circumstances it did not need to hear submissions from the Crown, and the applicant's counsel did not raise the matter in his reply. In short, ground 2 was abandoned.

15 Although this ground alleged that the judge erred by taking the verdicts on counts 1 to 3 before the further deliberations on the remaining counts, counsel's oral submission went no higher than saying that it would have been a 'better alternative' for the judge to have given the majority direction before taking the verdicts on counts 1 to 3. There is no rule preventing the course adopted by the judge. It may be added that defence counsel, and ultimately the prosecutor too, acquiesced in the course taken. While it is true that the incident following the taking of the verdicts would not have occurred at the point that it did if the judge had instead taken all the verdicts at the same time, for the reasons stated below in relation to grounds 4 and 5 I do not accept that the incident adversely affected the verdicts on the remaining two counts. The applicant advanced no other reason why the course adopted by the judge created the risk of a miscarriage of injustice. Ground 3 fails.

16 It is convenient to deal with these grounds together. Counsel submitted that the incident in the court room - which he characterised as 'a commotion' - created a real risk that the jury would not approach its deliberations on counts 4 and 5 impartially.

17 In developing ground 5, counsel submitted that in all the circumstances of the case, the incident in the court room was such as to create a high degree of need to discharge the jury.[3] It followed, he submitted, that the judge erred by not discharging the jury, thus leading to a miscarriage of justice.

18 Counsel argued ground 4 as an alternative. That is, if the judge was not obliged to discharge the jury, nevertheless his Honour failed to properly direct the jury on how they should disregard the incident. In that regard, counsel submitted that the judge ought to have made enquiries of the jury to ascertain whether the jurors were able to continue their deliberations unaffected by the incident. He referred to several cases where such a course was adopted or approved of in principle.[4]

19 With that outline, I now deal with grounds 4 and 5.

20 As to ground 5, the relevant principle is found in Webb v R,[5] where Mason CJ and McHugh J stated:

...the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.

21 Thus, the starting point is to consider the nature of the incident in the court room. The applicant's solicitor, who was present at the trial, has deposed in an affidavit that:

When the not guilty verdict was announced a woman, who I assumed was the mother of the two complainants, let out a loud groan. She was obviously upset. She was seated in the body of the court with other people I believe were family members of the complainants.

...

The woman was seated next to a man who was seated on the end of the row. When the not guilty verdict was announced the woman climbed over the man in the direction of the jury to get out of her seat. She had to walk past the accused to get out of the court room. As she walked past I heard her say something to the accused that sounded like 'you bastard raped my daughters'. She made no attempt to keep her voice down. The jury would have heard what she said.

22 Counsel for the Crown did not cross-examine the applicant's solicitor. He did, however, point out that the solicitor assumed that the woman who let out the groan was the complainants' mother, and that she was not sure what was said, limiting herself to stating what it sounded like. Further, the evidence was to be considered in light of what was heard on an audio recording in court at the time of the verdicts. This recording was provided to this Court by the Crown and, at counsels' request, we listened to it before the hearing got under way. What is heard on the recording following the verdicts is some apparent sobbing and some knocking or banging sounds.

23 After the appeal hearing, the judge provided a report to this Court in which he relevantly stated that:

... as to the reaction of the family, all I remember is one of the family, [X] I think, remarking after the verdict, 'I can't believe it' and walking out and, as she did so, calling [the accused] 'a bastard' or something to such effect.[6]

24 In my view, any differences between the solicitor's affidavit and the judge's report are immaterial. I would proceed on the basis that the material demonstrates that a female person in the complainants' camp, whether it be the mother or one of the complainants herself or some other family member or friend, made some noise in the court room following the verdict, cried, and as she walked out called the applicant a bastard in the presence of the jury. Further, I would infer that the jury heard the remark and understood that the person was unhappy with the verdicts of acquittal. That is the essence of the incident. In this regard, the statement in the applicant's written submissions (which counsel stated was based on advice from others) that there were 'screams of abuse, climbing over furniture and threats ... uttered by family members' was at best a gross exaggeration and at worst unfounded. Suffice it to say that on the solicitor's affidavit and the judge's report, the incident was of a relatively limited nature and was such as may and does occur in circumstances of high emotion in a trial involving sexual offences against young children.

25 Immediately following the incident, the judge reminded the jury that emotions must not come into their deliberations, and that they were to disregard the reaction to the verdicts. That, he said, 'is simply what happens in these cases and, as you have seen, there is a lot of emotion in the case anyway'. The warning is clear enough on the transcript, but takes on an added resonance and air of authority when heard on the recording. Neither the prosecutor nor defence counsel took exception to the way the judge dealt with the matter, or sought the discharge of the jury. And it is readily understandable why defence counsel would not have sought a discharge. The jury had spent considerable time deliberating on counts 4 and 5 and could not agree. The failure to agree indicated that at least one juror entertained a doubt as to the applicant's guilt on those counts. Defence counsel may well have considered that such a juror could persuade other jurors to share that doubt, thus securing acquittals on those counts. Moreover, as the jury had just acquitted the applicant of counts 1, 2 and 3, counsel may well have perceived an advantage in keeping a jury which had already demonstrated its preparedness to acquit.

26 Applying the principle stated in Webb, having regard to the limited nature of the incident, the judge's clear directions to the jury to disregard the incident, the absence of any application to discharge the jury, the abundant reasons why the defence would not have wished for a discharge, and the fact that the experienced judge evidently took the view that the course adopted created no risk of injustice to the accused, it cannot be said that the incident gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury would not discharge its task impartially. There was no need to discharge the jury. Ground 5 fails.

27 Similarly, there is no substance in ground 4. The judge directed the jury in the clearest possible terms that they were to disregard the incident. There is no basis on which to suppose that the jury did not faithfully follow his Honour's instructions. If anything, the fact that the jury deliberated for a further two hours after the incident indicates that they gave the last two counts anxious consideration. Further, I reject the submission that the judge should have made enquiries of the jurors as to whether the incident might affect their ability to approach the last two counts with an open mind. Although there are cases where such a course may be appropriate, the present was not such a case. Unlike the cases referred to by counsel, this was not a case where an incident occurred in the jury room or outside court hours, thus leading the judge to inform him or herself of the potential for the incident to affect the jury. Rather, the incident occurred in open court in the presence of the judge, the prosecutor and defence counsel. In the circumstances, the judge was able to assess for himself the nature of the incident and the response it called for, with the assistance of counsel. The judge determined upon a course which counsel accepted and it is only now that appellate counsel, far removed from the atmosphere of the trial, asserts that the judge ought to have approached the matter differently. In my view, the judge's directions were appropriate in the circumstances. Ground 4 fails.

28 Counsel stated that the decision whether to seek a discharge of the jury was a forensic decision for trial counsel, and his decision was understandable. As I understood him, he did not rely on ground 6. Whether that be correct, for the reasons given in relation to ground 5, the concession is plainly correct. Ground 6 fails.

29 For these reasons, I would refuse the application for leave to appeal against conviction.

1. Each of the individual sentences, the degree of cumulation and the non-parole period are manifestly excessive and/or infringe against the principle of totality.
2. The learned sentencing judge failed to take adequate account of the accused's mental health, his age, his lack of prior history and the forensic delay.
3. The learned sentencing judge gave too much weight to further allegations of uncharged acts, and counts on which the accused was acquitted, involving the complainant.

31 In developing ground 1, counsel stated that he did not complain about the sentences of six months and three years. Rather, he submitted, the judge erred in not suspending the sentence in whole or in part, and in the order for cumulation. He submitted that given the applicant's poor health, and the other mitigating factors identified in ground 2, and given the prosecutor's statement on the plea that a partially suspended sentence was within the range, it was open to the judge to partially suspend the sentence, and he should have done so.

32 In my view, the judge was entitled to reach the view that, notwithstanding the numerous mitigating factors, the seriousness of the offending meant that this was not an appropriate case in which to suspend any part of the sentence.

33 The judge was confronted with a difficult sentencing task. On the one hand, the offending was very serious. In this regard, the judge referred to the age differential between the parties and the breach of trust. As he said, count 5 was particularly serious as it involved an adult licking the vagina of a three to four year old child. Plainly, denunciation and general deterrence loomed large as sentencing factors.[7] As against this, there were many mitigating factors, including the applicant's age[8] and ill health[9] at the time of sentence, the delay, and the fact that he was being sentenced for only two offences committed on the same occasion and he had not offended since. In this regard, I interpolate that there is no substance in ground 3, for the judge's reference to uncharged acts and other counts was only made in the context of the victim impact statement's reference to them and in order to give context to the totality of the allegations. As his Honour was at pains to point out, he sentenced the applicant only for the two counts he was convicted of. Further, there is no substance in ground 2 as it cannot be said that the judge overlooked or undervalued any relevant matter of mitigation. Indeed, the sentencing remarks bespeak an awareness of, and sensitivity to, the difficulty of the task and the need to tailor a sentence that would adequately punish the applicant while also reflecting the

importance of social rehabilitation as discussed in DPP v DJK.[10] Ultimately, the judge reconciled these competing objectives by making a modest order for cumulation and fixing a non-parole period of less than half the total effective sentence. In my view, that disposition was entirely appropriate in the circumstances.

34 For these reasons, I would refuse the application for leave to appeal against sentence.

[1] The second presentment alleged 8 counts in respect of Y only. A trial of those counts occurred immediately following the trial on the first presentment. Ultimately, following discharge of the jury at the Crown's request, a nolle prosequi was entered. The third presentment alleged 12 counts in respect of X only. Following a trial, the applicant was acquitted of all 12 counts.

[3] R v Boland [1974] VicRp 100; [1974] VR 849, 866.

[4] R v Chaouk [1986] VicRp 70; [1986] VR 707; R v Evans (1995) 79 A Crim R 66; R v Cotter (2004) A Crim R 540; R v Sharp [2005] VSCA 44; R v Goodall [2007] VSCA 63.

[5] [1994] HCA 30; (1994) 181 CLR 41.

[6] This Court provided the parties with the judge's report and invited submissions, but neither party wished to do so.

[7] DPP v Toomey [2006] VSCA 90.

[9] Which included heart disease, diabetes, cognitive difficulties and poor neurological health.

[10] [2003] VSCA 109, [18].