Osborne v The Queen [2018] VSCA 160

CRIMINAL LAW - Appeal - Conviction - False imprisonment - Acquittal on charge of indecent assault - Same complainant, same occasion - Whether verdicts inconsistent - Relevant evidentiary differences - Leave to appeal refused.

CRIMINAL LAW - Appeal - Sentence - Offender appeal - Crown appeal - Sexual penetration of child under 16 (2 charges) - Aggregate sentence of three years' imprisonment - Applicant sentenced as serious sexual offender - No power to impose aggregate sentence - Whether sentence manifestly inadequate - Pre-sentence report disclosed 'complex delusional system' - Whether applicant suitable vehicle for general deterrence - Dead time - Two years in custody on other offences resulting in acquittal - Sentence manifestly inadequate - Prior convictions - Offended while on bail - Discount for dead time - Resentenced to five years and six months' imprisonment with non-parole period of four years - Sentencing Act 1991 s 9(1A).

1 The applicant[1] was convicted, after a trial in the County Court, of two charges of sexual penetration of a child under 16. He was given an aggregate sentence of three years' imprisonment.

2 In a second trial, the applicant was acquitted of a charge of indecent assault against a different victim, but convicted of having falsely imprisoned her. On that charge, he was sentenced to nine months' imprisonment, which was made wholly cumulative on the sentence imposed for the sexual penetration charges. That produced a total effective sentence of three years and nine months' imprisonment. A non-parole period of two years and six months was fixed.

3 The applicant now seeks leave to appeal against his convictions at both trials, and against sentence. The Director of Public Prosecutions has appealed against the aggregate sentence of three years on the sexual penetration charges. The Director submits that it was not open to the judge to impose an aggregate sentence and that, in any event, the sentence imposed was manifestly inadequate.

4 The primary ground of challenge to the convictions at the first trial concerns the applicant's fitness to stand trial. Reliance is placed on a pre-sentence report obtained by the judge from Forensicare, which described the applicant as presenting with

a complex delusional system concerned with a conspiracy against him involving a chemical company, local police, his victims and their families to have him convicted and ruin his business.

It is said that this 'delusional system' prevented the applicant from giving proper instructions to his counsel and that, as a result, the first trial miscarried.

5 For reasons which follow, I would reject that ground. Although the applicant clearly has a longstanding grievance against the chemical company, believing that it was responsible for his brother's death, there is nothing about the conduct of the first trial to suggest that the applicant was unfit to stand trial or was unable to provide proper instructions to his counsel.

6 The attack on the conviction at the second trial rests on what is said to be inconsistency between the verdict of guilty on the false imprisonment charge, and the acquittal on the indecent assault charge. I would also reject that complaint, as there were circumstances which adequately explained the jury's differential conclusions.

7 As to the sentence on the sexual penetration charges, it is common ground that the applicant was to be sentenced as a serious sexual offender and that the Sentencing Act 1991 (the 'Act') did not authorise the imposition of an aggregate sentence in those circumstances. As a result, it falls to this Court to sentence the applicant according to law. I would, moreover, uphold the Director's submission that the sentence of three years' imprisonment for these two offences was manifestly inadequate.

8 Given the applicant's prior convictions for sexual penetration, and his pleas of not guilty, a substantially higher sentence was called for. At the same time, account must be taken of the very lengthy period of 'dead time' which the applicant spent on remand, awaiting a retrial on separate sexual offence charges of which he was subsequently acquitted.

9 In the result, I would refuse leave to appeal against conviction. I would allow the Director's appeal against sentence and resentence the applicant as set out at para 54 below. It follows that I would refuse the applicant leave to appeal against sentence.

10 At the time of the offending the applicant was the owner and operator of Eternal Tattoo and Body Piercing ('Eternal Tattoo') in Maude Street, Shepparton.

11 The first complainant ('K') was born on 15 February 1992. From the time she was 13 she would visit Eternal Tattoo with her sister and friends after school. On 12 February 2008, when K was 15, the applicant phoned her, went to her home address and then drove her to Eternal Tattoo. He gave her five to six cans of Jim Beam and pierced her chin. The applicant asked her what she was going to do in return for the piercing. He told her, 'friends do that for each other.' She said she was not going to do anything, to which he said, 'friends do this stuff all the time.'

12 K sat on a couch near the door and the applicant asked if she would give him a 'head job'. She said no. He sat beside her, undid his pants and pulled out his penis and pushed K's head towards it. He pushed her head down on his penis until he ejaculated (charge 1: sexual penetration). She went to the bathroom before returning to the couch.

13 The applicant pushed her backwards, pulled her legs forward and slid down her pants and underwear. He lifted her legs up and inserted his penis into her vagina as he held her down by the shoulders (charge 2: sexual penetration). The applicant touched the complainant's breasts as she said 'no.' The applicant later drove the complainant home and kissed her, trying to insert his tongue into her mouth.

14 The second complainant ('R') met the applicant when she was aged 16 and had her tongue pierced at Eternal Tattoo. On 19 September 2012, R returned to Eternal Tattoo for another piercing. She spoke to the applicant and mentioned that she did karate. He tried to lift her singlet to see her abdominal muscles but she said no and pushed him away. He then grabbed her bicep and told her to flex before flexing his own bicep.

15 The applicant asked R if she 'gave blow jobs' and said that, if she did, he would give her anything she wanted for free. He directed her to give him a kiss, which she refused. He eventually kissed her and she could feel his tongue on her neck before his hand touched her left breast under her cardigan but over her singlet (charge 1: indecent assault).

16 The applicant then directed K to the piercing area for her tongue piercing which was performed in a chair behind two display cabinets. As T got up to leave, the applicant positioned himself between the display cabinets, blocking her exit. He asked for her mobile phone number and called the number he was given, realising it was false. R tried to push past but the applicant blocked her path. She then gave her correct number and again tried to leave. R was allowed to leave after promising to call the applicant (charge 2: false imprisonment).

17 As mentioned earlier, the applicant had a longstanding grievance against a company called Alltipe Drum ('Alltipe'), which supplied various businesses in the Shepparton area with drums that had previously contained a herbicide or a pesticide. The applicant's belief was that transporting drums for Alltipe had caused his brother's death.

18 The applicant maintained that he had informed the complainants and their families, and the police, about these allegations. Acting on the applicant's instructions, trial counsel sought to develop the proposition that the first complainant's family, and K herself, knew that the applicant had a bad relationship with the police and that this had somehow emboldened K to make (false) complaints against him.

19 The issue was explored with a number of witnesses and then, when the applicant gave evidence, he sought to go into detail about the events concerning Alltipe and the drums. The judge ruled that much of the evidence which the applicant evidently wished to give was not relevant, and directed that no further such evidence should be led.

20 At no time during either trial was any issue raised by the applicant's counsel as to his fitness or his ability to give proper instructions. That question arose for the first time following the receipt of the pre-sentence report. The report, by Dr Carolyn Simms, consultant psychiatrist, relevantly stated as follows:

Mr Osborne was admitted to Thomas Embling Hospital on two occasions for a total of twelve months between the end of 2005 and 2007. He was treated for a paranoid psychosis. Mr Osborne was trialled on a number of different antipsychotic medications including aripiprazole, risperidone and quetiapine. Due to the treatment resistant nature of his delusional beliefs, he was commenced on clozapine and was discharged on this for community follow up. He told me that clozapine was a 'terrible drug'. He soon ceased medication and denied receiving psychiatric treatment since that time.

...

Mr Osborne adamantly denied any wrongdoing. He described a complex delusional system, which focused on a conspiracy against him to get him convicted and his business ruined. He believed this currently involved local police and the victims [of] his offences and their families. Mr Osborne was of the belief that the widespread use of methamphetamine in Shepparton had influenced the behaviour of some residents and their attitudes toward him.

[T]he applicant's long-standing fixation with the conspiracy calls into question his ability to properly instruct his legal representatives in the present matter. His inability to do so and thus his apparent unfitness to stand trial caused the first trial to miscarry.

22 That submission must be rejected, in my view. A review of the trial transcript, and in particular of the evidence given by the applicant, in chief and under cross-examination, reveals no difficulty of this kind. It is clear that the applicant was well able to understand what was going on. He responded to questions appropriately and with some precision. There is no sign of confusion whatsoever.

23 As to giving instructions, it is of great significance that trial counsel apparently had no difficulty in getting instructions from the applicant. As I have said, nothing occurred during either trial to prompt defence counsel to raise an issue of fitness with the judge. The overwhelming inference is that neither counsel nor their instructing solicitors had any concern about the applicant's fitness to stand trial.[2]

24 Nor does the conduct of the defence case in the first trial invite any inference of unfitness. On the contrary, it is plain that the applicant wished his counsel to pursue the idea of a conspiracy and, equally, that he wished to give evidence about it. It is not unusual for an accused person to believe that he has been targeted by police, or unfairly accused by a complainant. Nor is it implausible that defence counsel saw potential forensic advantage for the applicant in raising those issues before the jury, as potentially bearing on K's credit. Even if this were thought to have been an ill-advised strategy, that would not, of itself, lead to the conclusion that the applicant was unfit to stand trial.[3]

Ground 3: was the applicant's character impugned?

26 Complaint is made about a passage from the evidence of K's mother ('D') given during the first trial. D gave evidence that, when she arrived home in the late afternoon, she was told that the applicant had come to the house earlier and had taken K with him. When she could not contact either K or the applicant, she rang police and 'reported concerns' about K being with the applicant.

27 According to the applicant's submission, the evidence about D having had 'concerns' would inevitably have caused the jury to reason that

the applicant was someone who should not be alone in the company of children ...

This was such an adverse reflection on his character, it is said, that he could not get a fair trial.

28 This submission, too, must be rejected. It was far more likely, in my view, that the jury would have understood D as being concerned - as any mother of a 15-year-old daughter might well be concerned - about her being in the company of a 38-year-old male. There was no risk of this being seen to reflect on the applicant in particular.

29 There was, moreover, no objection from defence counsel to the leading of the evidence. That is a very clear indication that, in the atmosphere of the trial, counsel did not perceive any risk of unfair reasoning.

31 As noted earlier, in the second trial the applicant was acquitted on a charge of indecent assault but convicted on a charge of false imprisonment. It is said that the inconsistency between these verdicts renders the conviction on the latter charge unsafe and unsatisfactory. The applicant points out that the evidence of both the indecent assault and the false imprisonment came from the same person (R), and concerned events occurring within a short period of time.

32 As this Court emphasised recently, an applicant who relies on factual inconsistency as a ground of appeal carries a heavy onus. If there is a reasonably plausible explanation for the different verdicts arrived at, that will generally provide a complete answer to this ground of appeal.[4]

33 As the Crown written case pointed out, there were two key matters which provide an explanation for the differential verdicts. The first is that the swabs taken from R's neck area at the police station did not show the presence of human saliva. Yet R's evidence was that the touching of her breast had occurred straight after the applicant had allegedly kissed her neck and licked her with his tongue. The defence closing address quite properly suggested that the absence of saliva raised a doubt about whether any sexual contact had occurred.

34 Secondly, when in the aftermath of the incident R reported what had happened, first to her mother and then to police, she mentioned the false imprisonment but did not mention the alleged sexual assault. The assault was not mentioned to her mother until some time in the succeeding six months. The jury were reasonably entitled to regard the contemporaneous complaint about the false imprisonment as supporting the consistency of R's account about that conduct and - equally - to view the absence of complaint about the indecent assault as raising a reasonable doubt.

35 The conviction application must therefore be rejected.

36 As noted earlier, the judge purported to impose an aggregate sentence of three years' imprisonment on the two charges of sexual penetration of a child under 16. It was common ground, however, that the imposition of an aggregate sentence was contrary to law, for the following reasons.

37 Section 9(1A)(a) of the Act prohibits the imposition of an aggregate sentence of imprisonment if

the offender is a serious offender within the meaning of Part 2A and any of the offences of which the offender is convicted is a relevant offence within the meaning of that part ...

38 The applicant fell to be sentenced as a serious sexual offender - and hence as a 'serious offender' within the meaning of pt 2A - by reason of his two prior convictions for a sexual offence, namely, sexual penetration of a child between the ages of 10 and 16. Further, each of the offences of which he was convicted was a 'relevant offence' within the meaning of pt 2A.[5]

39 Although the judge noted in his reasons that the applicant was to be sentenced as a serious sexual offender,[6] he did not raise with the prosecutor on the plea the possibility of an aggregate sentence. As a result, his Honour's attention was not drawn to the prohibition in s 9(1A).

40 In support of her contention that the sentence of three years' imprisonment was, in any event, manifestly inadequate, the Director drew attention to the judge's express finding that the sexual penetration offences were 'serious ones' and that the applicant's culpability was 'high'.[7] The judge found, moreover, that the applicant would have been 'well aware in 2008 that penetration of a girl aged less than 16 was illegal and a serious offence'.[8]

41 On the plea, the prosecutor relied on the following matters in submitting that this was very serious offending:

(a) the offending involved the oral and vaginal penetration of a 15-year-old girl;

(b) there was a significant age disparity, namely 23 years;

(c) the offences were committed at night, at the applicant's workplace, whilst his business was closed for the day, and therefore at a time when he knew that there would be no customers attending to disturb him;

(d) the offending was pre-planned as the applicant had established that the victim's mother was at work, picked her up and took her to his shop under the guise of performing a piercing;

(e) the applicant had previously befriended the victim and maintained telephone contact and had also attempted to ingratiate himself with her family;

(f) the applicant gave the victim alcohol and took advantage of her when she was affected by the alcohol and therefore vulnerable;

(g) the applicant attempted to normalise his conduct by telling the victim that they were friends, stating 'come on, we're mates, it's all good,' 'be a good girl' and 'friends do this ... it's all right';

(h) the applicant was significantly older, physically powerful and a tall and intimidating man, and he had taken advantage of these factors to overpower the victim, hold her on the couch and facilitate the penetrations;

(i) the offences were committed for the applicant's own sexual gratification;

(j) the applicant ejaculated in the victim's mouth, thus adding to the gravity of his conduct;

(k) the offending was aggravated by the applicant failing to use a condom, placing the victim at risk of pregnancy or sexually transmitted diseases;[9] and

(l) the offending was also aggravated by the fact that the applicant was on bail for similar offending at the time. (He was bailed on 13 December 2007 and these offences were committed on 12 February 2008 while his charges were still pending.)

42 The prior convictions for sexual penetration, and the fact that these offences were committed so soon after the applicant's release on bail, meant that specific deterrence and protection of the community were sentencing considerations of particular importance. In this regard, the following part of the psychiatric report was also relevant:

Mr Osborne does have a number of risk factors for sexual offending. He has a history of sexual offending and the offences he had been convicted of involved physical and psychological coercion in the sexual violence. Other factors are a history of and current symptoms of a psychotic illness and a past history of violence and non-sexual criminality.

43 The applicant, for his part, submitted that the individual sentences, total effective sentence and non-parole period were all manifestly excessive. The submission in support contended that the judge had failed to give any, or any appropriate, weight to the principles identified in Verdins v The Queen.[10]

44 Once again, reliance was placed on the Forensicare report and the reference to the applicant's 'complex delusional system'. Attention was drawn to the following findings by the judge:

There was no suggestion that any given sentence in prison would weigh more heavily on you than a person in normal health. I note that you have been in custody for nearly five months. You reported to Dr Simms that you were currently not experiencing any psychological stress, that your mood was good, and that you were eating and sleeping well.

There is no evidence that either of the complainants or their families are part of any conspiracy against you, and your allegation to Dr Simms that they were does not reflect well upon you. Likewise, there is no evidence before me of any involvement by the chemical company or local police in any such conspiracy.

I do not consider that the principles of Verdins have application here. I consider that your mental illness, as identified by Dr Simms, is not relevant to your offending behaviour. I accept that it may explain some of your behaviour during your trial and since in attempting to explain your convictions by alleging a conspiracy against you by others.[11]

45 According to the applicant's written case, the finding that the allegation of conspiracy did not 'reflect well' on the applicant was unfair, in circumstances where he had been found to be suffering delusional beliefs. It was further contended that the existence of those beliefs meant that the applicant was not suitable vehicle for general deterrence, which should have been moderated.

46 I do not agree. The key finding in the Forensicare report was that Dr Simms had

found no evidence to suggest that [the applicant's] mental illness contributed to the offending for which he is to be sentenced.

There was, as a result, no basis for contending that the applicant's moral culpability was reduced, or that he was not a suitable vehicle for general deterrence.

47 Whatever the state of the applicant's entrenched grievance against Alltipe, he was fully responsible - criminally responsible - for his offending. He knew full well that what he was doing was wrong, as the judge found.[12] To the extent that his 'delusional system' affected his mental functioning, it did not do so in any way relevant to the offending.[13]

48 There are two other significant matters to be addressed. The first is the so-called 'dead time' which the applicant served while on remand awaiting retrial, following his successful appeal against convictions for unrelated sexual offending.[14] As counsel for the applicant properly acknowledged, this was not a matter raised on the applicant's behalf, either on the plea or in the written case filed in this Court. The Director is very much to be commended for having drawn this highly relevant matter to our attention.

49 As noted earlier, the applicant was ultimately acquitted at his retrial on those charges. He had spent almost two years on remand awaiting trial, and then retrial, on those charges. Counsel for the Director properly accepts that, in resentencing him, this Court must give proper weight to that dead time. In my opinion, it is a very significant injustice to have spent such a lengthy period in custody on charges of which he was ultimately acquitted.[15]

50 The other matter concerns the significance of the fact that K made clear to the applicant that she was not consenting to sexual activity with him. In Clarkson v The Queen,[16] concerning the offence of sexual penetration of a child under 16, the Court rejected the contention that the victim's consent to sexual activity could be a mitigating factor. The Court said:

In our view, the provisions of the Act to which we have referred preclude the sentencing court from approaching consent in this way. The necessary implication of the provisions is that the presence of consent does not of itself make the offence of sexual penetration of a child under 16 (or of committing an indecent act in the presence of a child under 16) any the less serious. Of itself, the child's 'consent' is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim's consent alone. (On the other hand, proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender. Proof that the offender knew or suspected that the child was not consenting would found a charge of rape.)[17]

51 The Director relies on the first of the two highlighted sentences in arguing that the judge erred in treating the lack of consent as irrelevant. As discussed in argument, however, there is an obvious difficulty with the Clarkson proposition that proven absence of consent will 'significantly increase ... the culpability of the offender.' For, as the Court pointed out in the concluding sentence in the extract, proof that the offender knew or suspected that the child was not consenting would found a charge of rape. It follows that, on a charge of sexual penetration of a child under 16, it would not be open to the prosecution to submit - or for the sentencing judge to find - that the offender's awareness of the absence of consent increased his/her culpability.[18] On the other hand, proof that the child was not consenting would be relevant to the sentencing court's assessment of the impact of the offence on the child.

52 It is not necessary for present purposes to explore these questions further. The matters set out at para 41 above sufficiently demonstrate the gravity of this offending. Moreover, the judge was aware of, and took into account, the 'distress and long term trauma' which the offences had caused K and [19]r parents.19

53 This was very serious offending, for the reasons set out earlier. Moreover, the applicant was a repeat offender, had offended on bail and presented as being at risk of further sexual offending. And he was not entitled to any discount for a plea of guilty. The sentence of three years' imprisonment was well below what was required when proper weight was given to those considerations.[20]

54 In resentencing, the most significant factor in the applicant's favour is the two years of dead time. I consider that a substantial discount is required in order to address that injustice. Had it not been for that consideration, I would have imposed

55 In all the circumstances, I consider that the applicant should be sentenced as follows.

Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)][21]

Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)]

56 For the reasons advanced by Maxwell ACJ, I agree that both the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should be refused. I am also in substantial agreement with his Honour's reasons with respect to the Director's appeal, and concur with the orders proposed.

[1] While Mr Osborne is the respondent to the Director's sentence appeal, it is convenient to refer to him as the applicant throughout.

[2] See Madafferi v The Queen [2017] VSCA 302 [34].

[3] Eastman v The Queen (2000) 203 CLR 1, 14-15 [20]-[27].

[4] Inia v The Queen [2017] VSCA 49 [74].

[6] DPP v Osborne (Unreported, County Court of Victoria, Judge Smith, 20 July 2017) [60] ('Reasons').

[9] R v Khem [2008] VSCA 136; (2008) 186 A Crim R 465.

[10] [2007] VSCA 102; (2007) 16 VR 269.

[11] Reasons [46]-[48] (emphasis added).

[13] See, eg, Khoja v The Queen [2014] VSCA 9 [28].

[14] R v Osborne [2007] VSCA 250.

[15] Warwick v The Queen (2010) 201 A Crim R 580, 585 [18]; Karpinski v The Queen [2011] VSCA 94; (2011) 32 VR 85, 100-1 [62]-[64].

[16] [2011] VSCA 157; (2011) 32 VR 361 ('Clarkson').

[17] Ibid 371 [36] (emphasis added) (citations omitted).

[18] R v Newman and Turnbull [1997] 1 VR 146, 150-1.

[20] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127].

[21] Since amended by Crimes Amendment (Sexual Offences) Act 2016 s 16; see now Crimes Act 1958 s 49B.