CRIMINAL LAW - Sentence - Incest - Worst category offence - Grouping of counts with order for concurrency of sentencing of counts in group with order for cumulation of a portion of the sentence for that group - Total effective sentence of 18 years and six months' imprisonment and non-parole period of 15 years - Whether sentence manifestly excessive - Crown concession sentence beyond range open to judge below - Re-sentenced to total effective sentence of 15 years' imprisonment and non-parole period of 10 years and six months.

1 Following a trial in the County Court the applicant was found guilty on one count of attempting to commit incest (Count 1), one count of committing an indecent act against the complainant (Count 7) and thirty-seven counts of incest (Counts 2 to 6 and Counts 8 to 39). A total effective sentence of 18 and a half years was imposed with a non-parole period of 15 years.

2 Only a brief summary of the case is necessary.[1] The complainant is the applicant's eldest daughter. She was born in 1990. The applicant and complainant's mother separated when the complainant was about two years old.

3 Shortly thereafter, the applicant developed a relationship with another woman in Portland, Victoria, who became the complainant's step-mother and with whom the applicant had three children, two boys and one girl. The applicant, the complainant's step-mother, the complainant and her three siblings lived in Mt Gambier, South Australia. The complainant testified to having a strained relationship with her step-mother.

4 At trial, the complainant gave evidence of various uncharged acts that occurred during this period in South Australia, including acts of 'inappropriate affection' by the applicant toward the complainant and acts of anal and oral sex between the applicant and the complainant when she was about eight or nine years of age.

5 The applicant separated from the complainant's step-mother in 2001, when the complainant was 11 years of age. The applicant moved back to Portland, Victoria, with the complainant and her sister, leaving his two sons with the complainant's step-mother.

6 The Crown case at trial was that over a period of more than five years, between 1 January 2002 and 29 March 2007, the applicant engaged in a sexual relationship with the complainant who was aged between 11 and 17 years of age at the time of the offending. The charged acts included 37 acts of sexual penetration encompassing oral, anal and vaginal penetration, one act of attempted sexual penetration and one indecent act of exposing the complainant to pornography and masturbating in her presence. It is unnecessary to set out in detail the conduct which constituted all 37 incidents, but further detail is provided below in relation to counts relevant to particular grounds of appeal.

7 The defence case at trial was that none of the sexual offending had occurred, and that the complainant had lied about the sexual offending out of spite toward the applicant for forming a relationship with the complainant's friend. The applicant did not give evidence at the trial, and made a no comment interview when questioned by police on 22 January 2008.

8 The applicant now seeks leave to appeal to this Court against conviction on the following grounds: first, that the convictions on the count of attempting to commit incest against the complainant (Count 1) and four counts of incest (Counts 6, 10, 19 and 24) are defective due to latent ambiguity; secondly, that the conviction as to another count of incest (Count 5) is defective due to duplicity; thirdly, that the conviction on one count of incest (Count 3) is defective due to a lack of evidence regarding the act particularised; and fourthly, that all convictions are defective due to the learned trial judge erring in his directions to the jury as to the evidence of consciousness of guilt.

9 The applicant initially sought to appeal against conviction on other grounds, including that all the convictions were unsafe and unsatisfactory and that the charge was unbalanced, but those grounds were subsequently abandoned.

10 Counsel for the applicant submitted Counts 6, 10, 19 and 24 of incest and Count 1 of attempting to commit incest were each bad for latent ambiguity or uncertainty.

11 The rule against duplicity is well established.[2] Duplicity in a count is a matter of form, not evidence.[3] Duplicity may also be latent in the sense that it does not appear on the face of the indictment or complaint. The duplicity may subsequently emerge where the evidence led to prove one count is in fact revealed to establish the defendant committed two or more separate instances of the charged offence.[4] This latent duplicity, is sometimes referred to as latent ambiguity or uncertainty.[5] The verdict will be uncertain because the applicant could not know which instance he had been found guilty of and whether there was unanimity on the part of the jury in respect of one or other of the instances.[6]

12 Dixon J formulated the rule against latent duplicity or uncertainty in the following oft cited passage from Johnson v Miller, stating:[7]

In my opinion he [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.

13 This formulation of the rule has been repeated in subsequent decisions of the High Court in S v Queen[8] and Walsh v Tattersall.[9] Recently, it has been applied in this Court in R v Yankovski,[10] Rixon v Thompson[11] and R v Heaney.[12]

14 Generally there will be no injustice if the prosecution during its case is required to make an election, as soon as the defect becomes apparent, indicating which of the incidents will be the offence charged in each count.[13] If no election is made, a conviction upon a count that is bad for duplicity or latent duplicity should not be left to stand. Otherwise, it would be impossible for the accused to thereafter say that a plea of autrefois convict or autrefois acquit would be satisfied by reference to the presentment or the evidence called at his trial.[14]

15 The applicant submitted the convictions for the relevant counts were latently uncertain on the grounds that each count involved more than one instance of actual or attempted penetration, which was a necessary element of incest and attempted incest, respectively.

16 In this respect, counsel relied on the notion of 'introduction' in the following definition of penetration under the Crimes Act 1958:

(a) the introduction (to any extent) by a person of his penis into the vagina, anus or mouth of another person, whether or not there is emission of semen; or

(b) the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

17 Counsel submitted it was uncertain whether the jury convicted the applicant on each relevant count on the basis of the first or second acts of, or attempts at, penetration. For example, it was submitted two clearly separate acts of penetration were common to each of the relevant incest counts. Count 6 involved two separate acts of penetration because the applicant commenced intercourse with the complainant with a condom but subsequently withdrew to remove the condom before re-engaging in intercourse. Count 10 involved two separate acts of penetration because the applicant commenced vaginal intercourse with the complainant before withdrawing to insert a sex toy into the complainant's anus before re-engaging in vaginal intercourse.

18 Counts 19 and 24 each involved two separate acts of penetration because the applicant commenced intercourse with the complainant in one position but subsequently withdrew to change his physical position before re-engaging in the intercourse. As with counts 6 and 10, there was no change in the nature of the intercourse relating to either counts 19 or 24 and the temporal interruption to the intercourse in each instance was merely momentary.

19 Similarly, the count relating to attempted incest involved two separate attempts at penetration because the complainant resisted the applicant's first attempt at penetration from one position immediately before the applicant attempted penetration from another position.

20 Counsel for the applicant at trial took no exception to the trial judge's directions on the issue of penetration or attempted penetration in any of these counts.

21 It was not in dispute that the facts relied upon by the prosecution in support of each relevant count of incest and attempted incest involved technically separate acts of penetration or attempts at penetration. The Crown however, submitted that in relation to each relevant count of incest, the Crown was not required to prosecute technically separate acts of penetration under cover of corresponding separate counts, on the basis that such separate acts constituted one criminal episode or continuing criminal enterprise. (The same submission was made on the count of attempted incest.)

22 In support of that submission , the Crown sought to rely on the second of two exceptions to the rule against duplicity set out by Kirby J in the following passage of Walsh v Tattersall:[15]

This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges.

23 In considering the second exception, Kirby J said:[16]

If, for example, criminal acts occurred within a few minutes of time and in close proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible.

...

Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct.

24 In applying these indicia to the circumstances, the Crown submitted that the relevant counts of incest and attempted incest each involved acts of penetration or attempted penetration comprising, in truth, one activity. For example, the time between the technically separate acts, or attempted acts, of penetration was very brief, if not momentary in each relevant count. The acts, or attempted acts, of penetration occurred in the same place; and in each count the nature of the penetration or attempted penetration was the same - namely, penile-vaginal penetration.[17]

25 The Crown also submitted that the applicant's defence to either act of penetration or attempted act of penetration in each of the relevant counts was the same; namely, a denial of it ever occurring. It was said that this was particularly relevant given that the rationale behind the rule against duplicity includes informing defendants about the nature of the offences with which they are charged, because this provides them with an opportunity to defend the separate offences, including by raising different defences, if any, to the separate offences.[18]

26 Practical considerations may also outweigh strictly technical or analytical approaches to determining the elements of a crime in the application of the rule against duplicity. In the leading English decision of DPP v Merriman - cited in various Australian cases[19] - Lord Diplock said, with Lord Salmon agreeing:[20]

The rule against duplicity, viz that only one offence should be charged in any count of an indictment... has always been applied in a practical, rather than in a strictly analytical, way for the purposes of determining what constituted one offence.

27 In the same case, Lord Morris of Borth-y-Gest said:[21]

If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery CJ in a case where it was being considered whether an information was bad for duplicity: see Jemmison v. Priddle [1972] 1 QB 489, 495. I agree respectfully with Lord Widgery CJ that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances.

28 After citing this passage from Lord Morris's speech, Connolly J, with Macrossan CJ and Kelly SPJ agreeing in the case of R v Morrow and Flynn, went on to say:[22]

It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings but one must ask oneself whether this would be an application of common sense in terms of Lord Morris' speech. For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are not seen to be separate and distinct in time or circumstance. The first penetration may be interrupted by the victim's struggles or by a momentary apprehension of detection. It would of course be open in strict point of law to charge each penetration as a separate offence but scarcely consistent with the robust approach suggested by Lord Morris. In such a case I see no objection to charging one count of rape. On an indictment for attempted murder it may be proved that the prisoner knifed the victim two or three times and then pursued him down the street knife in hand. Technically the Crown could charge each knifing and the pursuit as separate offences of attempted murder. There can however be no objection to charging the whole episode as an attempted murder and indeed one has known this to be done.

29 As was said by this Court in Rixon v Thompson, following the reasoning of Ashley JA in R v Heaney,[23] with which Redlich and Kellam JJA agreed, 'whether a charge encompasses a single criminal activity, or a series of separate offences, is regarded as one of fact and degree.'[24]

30 We accept the Crown's submissions, which rest upon highly persuasive authority. In each relevant incest count (Counts 6, 10, 19 and 24) there are technically two separate acts of penetration due to an intervening moment of physical withdrawal brought about for reasons such as a change in sexual position. The same is also true in relation to the count of attempted incest, but obviously in the sense that the act of penetration was only attempted.

31 However, in accordance with the views espoused in Walsh v Tattersall[25] and the other cases cited by the Crown,[26] it was permissible to charge the applicant with one count of incest in relation to each of the relevant incest counts (Counts 6, 10, 19 and 24) and one count of attempted incest in relation to the relevant attempted incest count (Count 1). The technically separate acts of penetration in each count of incest constituted a single episode of incest. Similarly, the technically separate attempts at penetration constituted a single episode of attempted incest. In respect of each of the counts relevant to this ground of appeal, the Crown correctly applied the indicia proposed to sustain a single count by Kirby J in Walsh v Tattersall.

32 Furthermore, the applicant did not demonstrate how charging the separate acts of penetration under cover of single counts caused any unfairness to the applicant, since for example, the applicant did not proffer any different defences to the technically different acts of penetration. As such, it was open to the Crown to charge the relevant counts of incest and attempted incest under an exception to the general rule against duplicity. Indeed, as the discussion of this Ground demonstrates, it may be to the distinct advantage of the accused that the Crown take this approach.

33 The second ground of appeal is the reverse of the situations considered under the first ground. The submission in support of this ground is that, rather than including more than one instance of the crime charged under the one count, the Crown charged the applicant with two offences (Counts 4 and 5) where, because both were founded on a single act of penetration, only one offence was committed.

34 Although the argument on this ground was couched in terms of latent duplicity, it was more accurately an attack against the applicant's conviction on the second of these counts of incest (Count 5) on the basis that there was insufficient evidence to support that count independently of, and therefore separately from, the conduct which was the subject of Count 4.

35 Counts 4 and 5 involved a period of offending during one night in a lounge room of emergency housing premises in Portland. Sleeping in a room adjoining the lounge was the applicant's other daughter.

36 The complainant gave evidence at trial that the applicant engaged in sexual intercourse with the complainant during the evening, but that this was interrupted by the applicant's other daughter awakening to go to the toilet. The complainant testified that during this time the applicant attempted to conceal their presence by pulling a blanket over them, turning down the volume on the TV and listening intently for some time until he was sure the complainant's younger sister had gone back to sleep. The applicant re-engaged in sexual intercourse with the complainant shortly afterwards. The intercourse prior to the interruption was charged as Count 4 and the intercourse following the interruption was charged as Count 5.

37 Counsel submitted that the applicant may not have withdrawn from penetration during the period of any interruption. It followed, counsel submitted, that the evidence did not disclose two separate acts of penetration required to sustain two separate counts of incest.

38 The Crown submitted it was open to the jury, using their common sense, to find there were two separate acts of penetration, each of which constituted the required element of penetration for counts 4 and 5 respectively. To this end, the Crown relied on the complainant's evidence regarding the applicant's conduct during the interruption between the first and second act of penetration to invite the inference that the applicant committed at least two separate acts of penetration.

39 The Crown's submissions should be sustained. Whether or not the applicant withdrew from the first act of penetration before commencing a second act of penetration was a question to be determined on the facts. In light of the evidence lead by the Crown at trial, it was plainly open to the jury to find there were two separate acts of penetration constituting the requisite element of penetration for two separate offences of incest.

40 Furthermore, the prosecution was entitled to charge these separate acts of penetration under the cover of two separate counts of incest. During the course of oral submissions counsel for the applicant contended that even if Counts 4 and 5 involved separate acts of penetration, charging each act under cover of separate counts was inconsistent with the episodic view of offending adopted by the Crown regarding the counts of incest and attempted incest attacked in the first ground of appeal. While this contention was not the subject of a discrete ground of appeal, in essence, counsel for the applicant intimated it was unfair to the applicant for the Crown to approach the rule against duplicity in an inconsistent manner.

41 The entitlement to charge technically separate offences under the cover of separate counts is essentially a question of fact and degree informed by considerations of fairness and common sense: so much is clear from the previously cited statements of Lord Morris in Merriman and Connelly J in Morrow v Flynn and this Court in R v Heaney and Rixon v Thompson.[27]

42 There was no convincing argument that charging counts 4 and 5 separately was unfair to the applicant. Common sense suggests Counts 4 and 5 related to separate acts of penetration given that it was open to the jury to infer they were not connected in time, but were interrupted by the applicant's attempt to avoid alerting his younger daughter to the offending conduct. The prosecution was entitled to apply the general rule against duplicity and charge the acts of penetration relating to Counts 4 and 5 as separate offences rather than exceptions to the rule against duplicity in the sense of constituting parts of a single episode of offending.

Ground 3 - lack of evidence regarding Count 3

43 Counsel for the applicant contended that the evidence did not disclose, beyond reasonable doubt, the act of penetration relied on to establish the offence of incest charged under Count 3.

44 Count 3 related to offending conduct in March 2002 when the complainant was in grade 6 and resided with the applicant at a relative's place in Portland. During her evidence in chief at the trial, the complainant testified that the applicant 'would ejaculate inside me because I still didn't have my period yet'; but when she was asked whether she recalled 'a specific ... happening between you and your Dad at your [relative's] house' she replied 'I don't remember the exact sex' - that being the intercourse which was the basis for the offence charged as Count 3. She did remember that she and the applicant 'would go into the bathroom, and ... he would ... wash me down there'.

45 Later during her evidence, in relation to another count of incest, the complainant testified that she acceded to the applicant's request to engage in vaginal intercourse out of fear that if she resisted, the applicant may opt for anal intercourse, which the complainant detested due to her memories of discomfort caused by such intercourse as a younger girl.

46 Counsel for the applicant contended that the jury could not infer vaginal intercourse had occurred regarding the incest charged under Count 3, because of the complainant's difficulties in recollecting the nature of the penetration involved and her memories of anal intercourse with the applicant when she was younger. The latter limb of this contention invited the inference that one of the episodes of anal intercourse in the complainant's younger years formed the subject-matter of Count 3, and as such, conviction on Count 3 is defective because it goes to an offence of incest involving vaginal intercourse.

47 The gist of the applicant's submission was that it was not open to the jury to infer an act of penile-vaginal penetration, as opposed to penile-anal penetration, for the purposes of proving, beyond reasonable doubt, the element of penetration particularised in Count 3.

48 The Crown submitted it was open to the jury to infer vaginal intercourse had occurred as particularised in Count 3. In this respect, the Crown relied on the context of the interactions between the applicant and the complainant and the development of the applicant's offending.

49 Having regard to the context of the evidence, we consider that it was open to the jury to infer, beyond reasonable doubt, that the applicant had engaged in vaginal intercourse with the complainant before going to the bathroom together, as particularised in Count 3. There were a number of strands of the evidence forming part of the prosecution's case that permitted such a conclusion.

50 For example, the complainant testified that she began menstruating from December 2002. Prior to that time, the complainant testified that the applicant would usually ejaculate inside her vagina after vaginal intercourse. After the applicant became aware that the complainant had her period, he consciously began instructing her on how to use a condom and started to ejaculate on the complainant's stomach. The offence forming the subject matter of Count 3 occurred in March 2002 and involved the applicant ejaculating inside the complainant's vagina, which is more consistent with the conduct occurring before December 2002.

51 Another example was that instances of anal intercourse were generally specified in the complainant's evidence, and the lack of such specification with respect to the offending conduct involving Count 3 was susceptible to the inference that the intercourse in that count was vaginal, especially in the context of the other evidence.

52 Furthermore, the complainant's evidence regarding repetitive instances of anal intercourse is most pronounced during the offending conduct constituting the uncharged acts in South Australia before 2001. It follows that the complainant's recollections of anal intercourse during her younger years could relate to those periods before 2001 as much as the time in March 2002 involving the offending conduct charged as Count 3.

53 Suffice it to say, there were enough strands to the prosecution's case regarding the applicant's offending that entitled a jury to infer, beyond reasonable doubt, that the offending the subject of Count 3 concerned vaginal intercourse.

Ground 4 - directions as to consciousness of guilt

54 Under cover of ground 4 it is contended that the trial judge erred in his directions to the jury concerning consciousness of guilt.

55 The Crown led evidence of two pretext conversations that the complainant had with the applicant ('the conversations'). No suggestion is made that the evidence was wrongly admitted. The prosecution submitted that these conversations contained implied admissions that the applicant had maintained an incestuous relationship with the complainant. The conversations were dealt with by the trial judge as evidencing a consciousness of guilt. No exception was taken to his Honour's directions. The applicant now contends that the trial judge misdirected the jury by suggesting that the conversations could support an inference that the applicant was conscious that he had committed specific offences the subject of specific counts.

56 The first pretext conversation was a telephone conversation between the complainant and the applicant held after the complainant had complained to the police about the applicant. The complainant was in the company of a police officer during the telephone conversation. The second pretext conversation subsequently took place between the complainant and the applicant in a park. Unknown to the applicant the complainant was wearing a recording device supplied by the police to record any admission the applicant may have made during the conversation.

57 It was not alleged that the applicant expressly admitted having a sexual relationship with the applicant. The Crown contended that the conversations contained implied admissions by the applicant that the complainant and applicant had a sexual relationship because the applicant failed to deny the complainant's repeated statements that he 'used her for sex'. The Crown also relied upon the applicant's apology to the complainant. At no stage during the conversations did the complainant refer to any specific occasion on which sexual conduct occurred nor did the applicant say anything that was capable of constituting an admission that he had committed any of the specific acts the subject of the 39 counts on the presentment.

58 The prosecutor began and concluded her closing remarks referring to the conversations. She placed considerable emphasis on their significance as showing that a sexual relationship had existed between father and daughter. She did not invoke the concept of consciousness of guilt but submitted that the conversations evidenced the applicant's recognition that he had an incestuous relationship with his daughter. The prosecutor emphasised that the conversations did not relate to any specific counts. The prosecutor took the jury at some length to the complainant's assertions in the conversations which were to the effect that she wanted to understand why the applicant had 'used her for sex'. The prosecutor pointed to the applicant's response that 'it was a shame you feel like that. I've had no chance to talk to you.' The prosecutor described the conversations as 'indicative of the inappropriate relationship that existed between them' and as showing his guilt of having this relationship. The applicant concedes that the prosecutor at no stage invited the jury to reason that they could infer a consciousness of guilt in relation to any charges that the applicant faced.

59 Defence counsel said little about the conversations but submitted to the jury that the conversations were open to different interpretations. He urged the jury not to reason that because the jury might think the applicant guilty, that it should be inferred that the conversations were about an incestuous relationship.

60 The charge on consciousness of guilt extended over eight pages of transcript. We turn to the critical parts of that direction. His Honour began by instructing the jury about the concept of consciousness of guilt[28] as it applied to the conversations. He gave the jury a conventional instruction that to determine whether the conversations were capable of being used as an unspoken or implied admission by the applicant, involved inferential reasoning. The trial judge gave the usual direction about the caution that must be exercised by a jury before concluding that a statement constitutes an admission of the alleged crime.

61 His Honour then turned to an examination of the acts from which he said the jury could infer that the accused admitted his responsibility for the crime with which he had been charged. The trial judge then instructed the jury 'that it is only the following acts that could be used in this fashion.' He then explained that the Crown submitted that the conversations could be used to lead[29] -

to the inescapable inference that the conduct of [PDI] at the park during the conversation with [PE] is that he had had a sexual union with [PE].

62 His Honour then gave the jury a conventional Edwards direction as to the four elements that needed to be satisfied before the jury could use the applicant's behaviour as implicitly admitting responsibility for any particular crime such as incest. The third and fourth element of Edwards were explained in these terms:[30]

Thirdly you must be satisfied that the accused acted, acts related to some significant circumstances or event connected with the crimes you are considering.

Fourthly, you must be satisfied that the reason why [PDI] acted in the way that he did, he believed he had committed the crimes that you are considering, or some aspect of it, and he believed that he would be implicated in that crime if he did respond in the way he did...

In considering whether the requirement has been met, you should be aware that people may, for all sorts of reasons, act in a way to avoid being linked to a crime, and it may not be because they are implicated.

The requirement will only be met if you are satisfied that no explanation for [PDI]'s conduct is reasonably open on the facts, other than that he believed he had committed the crime you are considering, or some aspect of it, and he believed that by not acting in the way he did, he would be implicated in it.

If it is reasonably possible that [PDI] acted for another reason, you cannot use his conduct as evidence, that he implicitly admitted responsibility for these alleged offences.

63 Thereafter, his Honour summarised his previous directions, re-emphasising the need for the jury to relate the admission to a particular crime charged. The judge repeated, at least three times that the jury would have to be satisfied that the conversation related in some significant way to the crime before the jury could use it.

64 On appeal the Crown submitted that it was highly unlikely that the jury gave a literal interpretation to the judge's remarks. The prosecution case rested on two factual elements, namely proof of a long standing abusive relationship and proof of the commission of the offences the subject of the counts. Counsel emphasised that the jury were told, by both the prosecutor and the trial judge, that the conversations might prove the relationship existed but they were not evidence of the offences charged. Thus it was contended that the references by the trial judge to the 'crime' during the direction would have been treated as a reference to the incestuous relationship. The trial judge had previously directed the jury in an impeccable manner as to the limited way in which relationship evidence could be used as bearing upon the complainant's evidence as to each count.

65 Although there is considerable force in the Crown submission that the jury was unlikely to have been misled by the direction, it was inappropriate for his Honour to have given the jury a conventional consciousness of guilt direction. Substantial modification of the standard consciousness of guilt direction would have been necessary to make plain that the conversations were relied upon to establish an implied admission that there had been an incestuous relationship, not that they contained any implied admission of guilt in relation to any offence charged. Unfortunately, the direction indiscriminately and without modification, repeated large passages from the model directions in the Charge Book which were completely irrelevant to the issue before the jury.[31] No objection was taken by either the prosecutor or experienced defence counsel to the manner in which the trial judge dealt with the conversations. The conversations were not post offence conduct requiring a conventional consciousness of guilt direction.

66 Accordingly, we accept the applicant's submissions that the trial judge erred in his directions as the jury could not use the conversations as evidence of an admission of a particular crime the subject of any one of the 39 counts. The conversations could only have been used as an implied admission as to a 'sexual relationship' and not of admissions as to any specific conduct or count.[32] That was the sense in which the Crown sought to rely on them. The jury was entitled to take that sexual relationship into account in deciding whether or not they were satisfied beyond reasonable doubt of the applicant's guilt on a particular count.

67 The applicant rightly concedes however, that if the jury faithfully followed the direction, they could not have used the conversations as evidence of an admission of guilt as to any particular count as neither the complainant's allegations or the applicant's responses during the conversation ever went beyond general discussion about their relationship. When the evidence relied upon by the Crown to prove each count was discussed in the prosecutor's closing address, it was never suggested that anything said in the conversations was relevant to any individual counts. As we have already said, the prosecutor made plain that the evidence of the conversations did not relate to the specific counts but related to the existence of a sexual relationship that had started in Mt Gambier and continued after they moved to Victoria. We agree that the content of the conversations, which the jury were directed to consider most carefully, would not have enabled the jury to embark upon an impermissible process of reasoning in relation to individual counts.

68 Count by count, the trial judge later summarised the relevant evidence but did not suggest that the evidence of the conversations had particular relevance to any specific count. As conceded by the applicant, the trial judge did not invite the jury to use the evidence as an admission of guilt with respect to any particular count.

69 The applicant nevertheless contends that the misdirection on the use that could be made of the evidence was apt to confuse the jury as the trial judge did not make sufficiently clear that the admissions which the Crown relied upon were relevant to whether the applicant had an incestuous relationship with the complainant. The trial judge had given the jury separate directions about the evidence of the complainant concerning uncharged acts and what she alleged was an incestuous relationship that had continued unabated for 5 years. Later in his charge, and again when summarising the prosecutor's closing argument, the judge further reminded the jury about the limited use that could be made of relationship evidence. No criticism is made of the repeated directions his Honour gave concerning relationship evidence.

70 We think there is considerable force in the Crown's submission that when the direction on consciousness of guilt is considered in the context of the charge as a whole, including the directions on the limited use that could be made of relationship or sexual interest evidence, and in light of the closing addresses, the jury were likely to have understood that the conversations were evidence of an admission as to a sexual relationship and could only be used in that confined way.

71 If, however, the effect of the directions was to insufficiently link the conversations to evidence of the relationship between the applicant and the complainant, it was the Crown who was disadvantaged. We do not consider that there was a perceptible risk that the applicant was prejudiced by the direction such as to give rise to a miscarriage of justice

72 If, contrary to our view, the misdirection as to consciousness of guilt evidence amounted to a miscarriage, we would apply the proviso to s 568 of the Crimes Act

72 1958.[33] The complainant gave evidence but the applicant did not. Several other witnesses were called by the Crown. Mr Thimm, the brother of the applicant, gave evidence of how the complainant and her father, the applicant, interacted. He said that they were very affectionate towards each other, and observed them in bed. This, naturally, raised suspicions of impropriety. He did not observe any sexual misconduct between them. He and others gave evidence of them sleeping in the same bedroom together. There was considerable evidence, including the conversations, that was confirmatory of the complainant's account that there was an incestuous relationship.

73 The error made by the learned trial judge was not one which we consider could have affected the jury's process of reasoning so as to disable this court from placing any reliance upon the jury's verdict and their conclusion as to the complainant's credibility. We do not regard it as an error that may have resulted in the jury being mistaken or misled in the manner in which it reached its conclusion or that any real injustice has been done to the applicant.[34] Making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the applicant was in our opinion proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdict.

74 For these reasons, we would refuse the applicant leave to appeal against his conviction.

75 The applicant was between 31 and 37 years of age at the time of the offending. The applicant was aged 38 years at the time of sentence. The total effective sentence of 18 years was made up of a sentence of four years' imprisonment on the count of attempted incest (Count 1), 10 years' imprisonment on the first count of incest (Count 2), three years' imprisonment on the count of an indecent act with a child under the age of 16 (Count 7), and nine years' imprisonment for each of all the remaining counts of incest (Counts 3 to 6 and 8 to 39).

76 The sentencing judge made the sentence of 10 years' imprisonment on Count 2 the base sentence. He ordered that the whole of the sentence imposed on Count 1 be served concurrently with the base sentence. He ordered that two years and six months of the sentence on Count 7 be served concurrently with the base sentence. He otherwise pronounced most unusual orders for cumulation in relation to the remaining counts. The cumulation resulted in a total effective sentence of 18 years and 6 months' imprisonment. His Honour fixed a minimum term of 15 years before the applicant was eligible for parole.

77 The table below sets out the groupings of counts, the orders for concurrency and, for convenience, the amount of each group's sentence that was to be served cumulatively upon the base sentence

Sentence imposed on each count in group made concurrent with each other.

Amount of single sentence for group made concurrent with Count 2

78 His Honour grouped a number of counts together and ordered that all of the sentences for counts in that group be served concurrently with each other and that a portion of the sentence for that group be served concurrently with the base sentence.

79 We were able to find only one reported case where such a course has previously been followed.[35] This is not the occasion to examine whether such a course is permissible; but it has given rise to a number of difficulties, discussed below, which may have been avoided had a more conventional approach been taken.

80 The applicant complained that the sentencing remarks do not explain the rationale for the grouping of the counts although it appears that the groups were determined by reference to the location where the offence occurred. The applicant pointed to the fact that his Honour frequently omitted to recite the factual basis for the sentence and by imposing a sentence of nine years' imprisonment on each of 36 counts failed to differentiate between the relative objective gravity of the facts giving rise to some of the incest counts. It was also submitted that his Honour failed to make any allowance for the fact that some of the offences occurred within a very short space of time or on the same occasion and should have been viewed as part of one episode so that lower sentences or greater concurrency was required. We consider there is some merit in these submissions.

81 His Honour did not order that the sentence for the counts within the group that was to be concurrent with the base sentence also be concurrent with the sentence for each other group that was to be served concurrently with the base sentence. The appeal was conducted on the basis that this must have been his Honour's intent, otherwise the total effective sentence would have been much higher.

82 As a result of the convictions and sentences on Counts 1 and 2, the applicant was sentenced as a serious sexual offender on Counts 3 to 39.

83 It is unnecessary to address all of the grounds of appeal as the Crown conceded that the total effective sentence was manifestly excessive, being 'quite inconsistent with current sentencing practice for multiple offences of incest, even allowing for the fact that this matter was contested and the appalling features of the applicant's wrongdoing.' The Crown made this concession having regard to FD v The Queen;[36] DPP v HPW;[37] MP v The Queen.[38] To those cases may be added DPP v OJA & Ors;[39] DPP v BDJ;[40] NJD v DPP;[41] OAA v The Queen[42] and DPP v CPD.[43]

84 This case fell within the worst category of offending for the offence of incest. The applicant, who had no prior convictions, commenced to sexually abuse the complainant when she was eight or nine years of age. The applicant groomed the complainant. She was isolated and psychologically vulnerable. The applicant falsely represented that the complainant's mother had deserted her. The abuse included oral sex, digital manipulation and penetration, masturbation and vaginal intercourse. He took advantage of her dependency. He maintained a sexual relationship with the complainant involving a gross breach of trust. The sexual activity which continued until the complainant was eleven was the subject of uncharged acts at trial. The conduct the subject of the counts on the presentment covered a period of five years from 2002 when the complainant was 11 to 17 years of age. The sexual abuse was persistent and sustained throughout this period. The abuse, the subject of the counts on the presentment, covered oral, vaginal and anal penetration. The applicant and the complainant slept in the same bed. The complainant was instructed to perform depraved and sexually degrading acts. Some of the counts involved the use of a dildo and pornography. He disregarded the complainant's protestations and tears and subjected her to psychological abuse. The offending took place in the family home, at the applicant's brothers' homes and when staying with friends. The sentencing judge described the life of the complainant as 'horrendous,' the applicant using the complainant as a 'sex plaything'.

85 The applicant submitted that this case should not be placed in the worst category. Counsel listed a number of features found in 'worst cases' such as a pregnancy, the birth of a child, an abortion, the taking of obscene pictures, the participation of numerous adults or multiple victims of incest. He said that as none of these features were present the case did not fall into the worst category. That submission can not be sustained.

86 This court stated in Hudson v The Queen:[44]

Reference to features of 'comparable' cases in that worst category which are not present in the case under examination will not demonstrate that the impugned sentence is beyond the range of sentences that were available to the sentencing judge in the exercise of his discretion.

87 The applicant's offending was rightly viewed by the sentencing judge as of such a serious order as to warrant the imposition of a sentence reserved for the worst category of cases. If features of the offending are present which require it to be characterised as falling within the worst category, the sentence will not become unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed for a case said to have worse features.[45]

88 Grave as the applicant's conduct was, the Crown rightly conceded that the sentence imposed was beyond that which was reasonably open in a sound exercise of the sentencing discretion. It therefore falls to this Court to re-sentence the applicant having regard not only to the objective gravity of the offending, the applicant's moral culpability and the importance of general deterrence, but also the matters personal to the applicant to which his Honour referred at some length in his sentencing remarks and which were relied upon on the appeal.

89 We re-sentence the applicant to the following individual terms of imprisonment on each count and make orders that the amount of cumulation specified on each count be cumulated on each other and on the sentence on Count 2 as follows:

Count 2 - 8 years - Base Sentence

Count 3 - 7 years - 3 months' cumulation

Count 4 - 7 years - 3 months' cumulation

Count 5 - 7 years - fully concurrent

Count 6 - 7 years - 3 months' cumulation

Count 7 - 2 years and - 2 months' cumulation

6 months

Count 8 - 6 years - 2 months' cumulation

Count 9 - 6 years - 1 month's cumulation

Count 10 - 7years - 3 months' cumulation

Count 11 - 4 years - 1 month's cumulation

Count 12 - 7 years - 3 months' cumulation

Count 13 - 4 years - 1 month's cumulation

Count 14 - 7years - 3 months' cumulation

Count 15 - 8 years - 5 months' cumulation

Count 16 - 7 years - 3 months' cumulation

Count 17 - 7 years - fully concurrent

Count 18 - 5 years - fully concurrent

Count 19 - 7 years - 3 months' cumulation

Count 20 - 7 years - 3 months' cumulation

Count 21 - 4 years - 1 month's cumulation

Count 22 - 5 years - 2 months' cumulation

Count 23 - 7 years - 3 months' cumulation

Count 24 - 7 years - 3 months' cumulation

Count 25 - 7 years - fully concurrent

Count 26 - 7 years - 3 months' cumulation

Count 27 - 7 years - 3 months' cumulation

Count 28 - 7 years - 3 months' cumulation

Count 29 - 5 years - fully concurrent

Count 30 - 7 years - 3 months' cumulation

Count 31 - 5 years - fully concurrent

Count 32 - 5 years - fully concurrent

Count 33 - 7 years - 3 months' cumulation

Count 34 - 7 years - 3 months' cumulation

Count 35 - 7 years - 3 months' cumulation

Count 36 - 7 years - 3 months' cumulation

Count 37 - 7 years - 3 months' cumulation

Count 38 - 7 years - fully concurrent

Count 39 - 7 years - 3 months' cumulation

making a total effective sentence of 15 years. We fix a minimum term of 10 years and six months before the applicant is eligible for parole.

[1] The factual background to this case is set out in detail in the reasons for sentence of the trial judge.

[2] See eg S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 284 (Gaudron and McHugh JJ); Walsh v Tatersall (1996) 188 CLR 77, 103-107 (Kirby J).

[3] Archbold, Criminal Pleading, Evidence and Practice (London Sweet and Maxwell, first published 1849, 1995 ed), vol 1, 75.

[4] S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 284 (Gaudron and McHugh JJ); Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323, 334 [57] (Maxwell P, Weinberg JA and Kyrou AJA).

[5] S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 274, 277 (Dawson J); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 486 (Dixon J).

[6] R v Trotter (1982) 7 A Crim R 8; R v Rigoli [2006] VSCA 1.

[7] [1937] HCA 77; (1937) 59 CLR 467, 489 (with Evatt and McTiernan JJ agreeing in the result; and Latham CJ dissenting).

[8] [1989] HCA 66; (1989) 168 CLR 266, 277 (Dawson J), 281 (Toohey J), 285-287 (Gaudron and McHugh JJ); see also 271 (Brennan J, dissenting in the result).

[9] (1996) 188 CLR 77, 86 (Dawson and Toohey JJ dissenting in the result), 93 (Kirby J).

[10] [2007] VSCA 259; [2007] 17 VR 315, 322 [23].

[11] [2009] VSCA 84; (2009) 22 VR 323 (Maxwell P, Weinberg JA and Kyrou AJA).

[12] R v Heaney [2009] VSCA 74; (2009) 22 VR 164 (Ashley JA, with Redlich and Kellam JJA agreeing).

[13] The Queen v VN [2006] VSCA 111; (2006) 15 VR 113, 130 [61]; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J); Jones (1974) 59 Cr App R 120, 126-7; Byrne v Garrisson [1965] VicRp 70; [1965] VR 523, 539 (Gowans J); Stanton v Abernathy (1990) 19 NSWLR 656, 669 (Gleeson C.J); DPP v Lewis [1997] 1 VR 391, 397 (Tadgell JA); S v R [1989] HCA 66; (1989) 168 CLR 266.

[14] R v VN [2006] VSCA 111; (2006) 15 VR 113, 133 [74] (Redlich JA).

[15] (1996) 188 CLR 77, 112.

[17] See R v Khouzame and Saliba [1999] NSWCCA 173; (1999) 108 A Crim R 170, 183 [83] (citations omitted).

[18] See S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 271 (Brennan J); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 497-498 (Evatt J); Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323, 337-338 [73]-[77] (Maxwell P, Weinberg JA and Kyrou AJA).

[19] Beck v The Queen [1984] WAR 127; Giretti and Giretti (1986) 24 A Crim R 112, 118_; R v Traino_ (1987) 45 SASR 473, 475-476; Hamzy v R (1994) 74 A Crim R 341, 346.

[20] [1973] AC 584, 607.

[22] [1991] 2 Qd R 309, 312.

[23] R v Heaney [2009] VSCA 74; (2009) 22 VR 164, 179-182 [48]-[53].

[24] Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323, 337 [73] (Maxwell P, Weinberg JA and Kyrou AJA).

[25] (1996) 188 CLR 77.

[26] R v Khouzame and Saliba (1999) 108 A Crim R 170; [1999] NSWCCA 173; Rixon v Thompson (2009) 22 VR 332; R v Morrow and Flynn [1991] 2 Qd R 309.

[27] See also R v Khouzame and Saliba [1999] NSWCCA 173; (1999) 108 A Crim R 170.

[28] Transcript of Proceedings (Charge), R v PDI (Unreported, County Court of Victoria, Judge Pilgrim, 7 May 2009) 238.

[31] Victorian Criminal Charge book - Judicial College of Victoria at 4.7.2.2.

[32] The applicant relies on R v GVV [2008] VSCA 170, [41].

[33] The Crown rely on Weiss v R [2005] HCA 81; (2005) 224 CLR 300 and R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, see [19] of Respondent's Outline of Submissions of 15 July 2011.

[34] Alexander and McKenzie [2002] VSCA 183; (2002) 6 VR 53, 67 [31].

[35] DPP v Grabovac [1984] 1 VR 664.

[36] [2011] VSCA 8, [19]-[29].

[37] [2011] VSCA 88.

[38] [2011] VSCA 78.

[39] [2007] VSCA 129; (2007) 172 A Crim R 181, 195 [29] (Nettle JA)

[40] [2009] VSCA 298.

[41] [2010] VSCA 84.

[42] [2010] VSCA 155.

[43] [2009] VSCA 114; (2009) 22 VR 533.

[44] DPP v Hudson [2010] VSCA 332, [39].