R v A D J [2005] VSCA 102

Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I agree that the applications should be dismissed for the reasons of Batt, J.A. that I have had the advantage of reading in draft form.

2 On 17 September 2003 the applicant, who was born in May 1966, was presented in the County Court at Melbourne on four counts of committing[1] an indecent act with a child aged under 16, contrary to s.47 of the Crimes Act 1958 (counts 1, 3, 5 and 6), one count of committing an indecent act in the presence of a child aged under 16, contrary to the same section (count 2), two counts of incest, contrary to s.44(1) of the Crimes Act (counts 4 and 7) and one count of possessing child pornography contrary to s.70 of the Crimes Act (count 8). The victim in the case of the first seven counts was the applicant's daughter, who was born in October 1988. (I shall sometimes call her "C".) The maximum penalties applicable were imprisonment for 10 years for committing an indecent act, for 25 years for incest and for five years for possessing child pornography. After the trial judge had made certain preliminary rulings[2], the applicant was arraigned before him alone and pleaded not guilty to counts 1 to 7 (inclusive) and guilty to count 8.[3] The following day the applicant was arraigned on counts 1 to 7 inclusive in the presence of the jury panel and pleaded not guilty to all those counts.[4] A jury was empanelled and the trial proceeded.

3 On 22 September 2003 his Honour heard and rejected a submission that there was no case to answer in respect of counts 1, 3, 5 and 6. The Crown closed its case. The applicant stood mute, but called three witnesses. On 23 September 2003 the jury returned verdicts of guilty on counts 1, 2, 5, 6 and 7 and not guilty on counts 3 and 4. The applicant admitted two previous findings of guilt and four previous convictions from appearances in the Magistrates' Court between January 1985 and February 1998, but the offences were entirely dissimilar to the present ones. He had not served a term of actual imprisonment.

4 On 26 September 2003 the prosecutor outlined the facts of count 8 and tendered two victim impact statements, from C and her mother. Counsel for the applicant then made a plea in mitigation of penalty during which he tendered two documents. In response to a defence submission that the child pornography received by the applicant was unsolicited, coming to him by e-mail from adult pornography sites he had accessed, the prosecutor called a member of the police Computer Crime Investigation Squad.

5 On 2 October 2003 his Honour sentenced the applicant to be imprisoned for two years on each of counts 1, 2, 5 and 6 (the indecent act offences), for three years and six months on count 7 (incest) and for one year on count 8 (possessing child pornography). He directed that six months of the sentence on each of those counts other than count 7 be served cumulatively upon the sentence on count 7, making a total effective sentence of imprisonment of six years, and fixed a non-parole period of three years and six months. His Honour recorded that upon conviction and sentence on counts 1 and 2 the applicant was sentenced as a serious sexual offender on counts 5, 6 and 7. He declared that ten days' pre-sentence detention be reckoned as time already served.

The applications for leave to appeal against conviction and sentence

6 On 10 October 2003 the applicant gave notices of application for leave to appeal against conviction and against sentence. On 23 June 2004 the Registrar granted the applicant leave to amend the grounds in those notices by adding further grounds. As a result, after excluding a ground relating to conviction and one relating to sentence that were not pressed**,** the grounds relied on in the respective applications were:

Conviction

1. The verdict should be set aside as it would be unsafe or unsatisfactory to allow it to stand.

2. The learned trial judge erred in failing to rule that there was no case to answer in relation to Counts 1 and 5 on the presentment on the basis that there was no physical contact between the applicant and the complainant in respect of those counts.

3. The learned trial judge erred in directing the jury that no physical contact was necessary to constitute the crime of indecent act with a child under 16.

4. The learned trial juge erred in admitting into evidence:

(ii) material concerning sexual acts between the applicant and persons other than the complainant;

(iii) material concerning items of a sexual nature.

6. The learned trial judge erred in directing the jury that there was no basis for defence counsel's address to the jury upon the applicant's assertion to police that a medical examination should be undertaken upon the complainant.

1. The sentence passed upon the applicant was in all the circumstances manifestly excessive.

2. The learned sentencing judge erred in failing to place any or any sufficient weight upon the fact that the applicant suffered from hepatitis C and that thereby imprisonment would be more burdensome for him.

The offending (counts 1 to 7)

7 Before these grounds can be examined it is necessary to state summarily the facts of the offending and some facts personal to the applicant and to indicate the course of his Honour's reasoning so far as sentence is concerned. The complainant C's mother and applicant father separated in 1996 and were divorced in 1999. C and her younger brother continued to maintain regular contact with the applicant, who resided with his parents and later he moved to another western suburb of Melbourne. The children resided with their mother in a southern suburb. Most of C's evidence was adduced by way of what is tautologically called a "VATE" video tape played to the jury.

8 The first offending according to C occurred at the applicant's parents' home at night when she was 12. She and the applicant were in his bedroom. He directed her to remove her clothing slowly. When she was naked, he directed her to assume different poses, such as opening her legs and doing backbends, while he took photographs of her with a digital camera and a video camera. That constituted the offending the subject of count 1. The applicant then asked C to take some photographs of himself. She refused. He told her that if she wanted something (the identity of which she could not recall) she would have to do something in return. She started to put her clothes back on. The applicant told her to stop. He said that he wanted to take photographs of the two of them together. She refused. He directed her to take photographs of him while he was naked on the bed and touching his penis. She took some photographs and then stopped. (This constituted the offending the subject of count 2.)

9 Counts 5, 6 and 7 relate to two subsequent photography sessions involving the same requirements that C remove her clothes and pose in an indecent manner for photographing. The applicant's pretext for those photography sessions was that the previous photographs had not come out or that the video tape did not come out right. The incident the subject of count 5 occurred at the house to which the applicant had moved and before C and her family had a trip to Queensland. That trip seems to have taken place in or about July 2002. On that occasion the applicant gave C money. The incidents the subject of counts 6 and 7 occurred about a month before C's VATE interview (which was conducted on 25 August 2002) and just after she and her family had returned from the trip to Queensland. It occurred in the lounge room of the applicant's house. The applicant mentioned that a week earlier he had given C $100 to buy running shoes and said, "You owe me". She told him that she had already done everything for him and that he had said that that was the last time. He replied, "But it didn't work out that time". The applicant told her that if she did not do what he told her to do, that is, take off her clothes and let him take pictures, she would not get the mobile phone she wanted. He directed her to remove her clothing, which she did, and proceeded to take photographs of her with a digital camera and a video camera. (That constituted the offence the subject of count 6.) At one stage C was sitting down with one leg up and one down. The applicant said that he wanted to make the picture look better. He told her to touch herself. She refused. He then inserted his fingers into her vagina. (That constituted the offence the subject of count 7.) C did receive a mobile phone from the applicant on this occasion.

10 The complainant's mother gave evidence that in the preceding year or two she had noticed a change in C's attitude when visiting her father. She would be happy to go if her brother was also going, but, whenever the applicant telephoned and requested that she come on her own, she would say that she did not want to go on her own and would ask to take a friend with her. The complainant's mother had always insisted that she go on her own to spend "quality time" with her father. She had accepted the applicant's explanation that two children at once were too many for him to handle. She noticed that in respect of such access visits C would come home with expensive gifts such as running shoes or a mobile telephone on a contract plan. Her son never came home with such gifts.

Proximate complaint and searches

11 On the night of 23 August 2002 C had a slumber party at her mother's home with eight of her school friends. Six of them, including C, stayed up late talking and watching video tape recordings. The conversation moved to talking about girls at school who had been sexually assaulted by their families. C started to cry. Her friends asked her what was wrong. Eventually she told them that her father took photographs of her naked and touched or "fingered" her. Her friends urged her to tell her mother. At about 5.30 a.m. on 24 August C's mother was woken by C and another girl. C told her mother that the applicant had been taking video tapes and photographs of her naked and that he had been touching her. Later that morning the matter was reported to the police.

12 On 30 August police executed a search warrant at the applicant's home (and also one at his parents' home). The jury were informed that a video tape which first recorded an ordinary television program and then showed covert footage of the complainant, dressed, measuring clothes against herself in the bathroom of the applicant's home was found in a television cabinet. They were also informed that the police found a brief case containing video tapes and other items concealed in the cavity below the bottom drawer of a bedside chest of drawers in the applicant's bedroom. One of those video tapes contained covert footage depicting two instances of C undressing, showering and dressing again in the applicant's bathroom The informant gave (by agreement) hearsay evidence that the brief case included video tapes of a sexually explicit nature involving consenting adults and various items of sexual apparatus and that the video tape depicting C showering had had sexually explicit material on it (including images of the applicant himself) deleted from it. The latter video was blank at the end of the footage showing C showering. The footage of C in the applicant's bathroom was taken by a camera concealed under a bench in the bathroom. The camera was focussed upon the shower at about crotch level and below and C's face was not shown. Nor was any window or door. The two videos depicting C were tendered. Neither the sexually explicit material depicting consenting adults nor the sex aids were tendered in evidence.

13 The informant agreed in cross-examination that at neither home were any photographs or video tapes found that answered the description of the material C said was taken of her.

14 On the same day as the search warrant was executed police conducted a tape recorded interview with the applicant. In it he denied the offences. At one stage he asked, "Has she [the complainant] been tested? Is she still a virgin?" He confirmed that what he meant was whether she had been medically examined. When told that the investigator did not believe she had been, he said, "Well, get that done. See what happens there."

15 On 16 December 2002 the applicant was interviewed by police in respect of the video tapes depicting C in his bathroom and the child pornography found on his hard drive. The questions and answers relating to the child pornography were excised from the tape recording tendered before the jury. In respect of the bathroom video tapes the applicant told the police that he had installed surveillance video cameras in his house, one of which was in the bathroom, because he had been burgled in his former residence. The cameras had been installed about a month or two months earlier. He had installed such equipment when living at other premises. He said that he had sold the surveillance cameras because he needed the money. He denied having viewed the video footage of C in the bathroom. He said that it had been created when the automatic sensors had been tripped. As his Honour said in his sentencing remarks, the jury did not accept the applicant's explanation.

The offending (count 8)

16 The evidence bearing on count 8 (possession of child pornography), to which the applicant had pleaded guilty before the judge, was not before the jury, though it was available to his Honour, and some oral evidence was (as mentioned already) led before him, for sentencing purposes. Amongst the items of property seized by the police on 30 August 2002 was the applicant's computer equipment. The hard drives were examined by a member of the Computer Crime Investigation Squad. On one hard drive the latter found "ordinary" pornographic material and a partitioned and encrypted section of the hard drive, which could not be accessed without a password. The applicant told the police that he could not recall the password and suggested possible passwords. They were unhelpful. The police member ran a special program which took 19 weeks running at full computer processing speed 24 hours a day to ascertain the password, 35253525, which bore no resemblance to the passwords suggested by the applicant. Upon gaining access to the encrypted section the police member found six short movie files depicting children engaged in sexual activity and a volume of 895 images. On that basis of sampling 100 images, he found that about 95% of the total images were child pornography as defined in s.67(a) of the Crimes Act. He stated that it was impossible, or extremely unlikely, that this material was downloaded, or encrypted, inadvertently. Moreover, the child pornography could, he said, have been deleted.

17 In a part of the interview of 30 August 2002 excluded from the evidence before the jury the applicant confirmed that his computer had on it some pornography, which came from the Internet. He stated that a lot of child pornography would come on to his computer automatically, but he did not download it from child pornography sites. He denied that there was any pornographic material depicting children on his computer.

18 With respect to the child pornography found on the computer hard drive the applicant stated in his recorded interview of 16 December 2002, and his counsel repeated on the plea, that it happened inadvertently as a result of visiting adult pornographic web sites and he had been unable to stop it being downloaded on to his computer. All he could do was isolate it into the "corruption section". He had forgotten the code to access that section. Direct debits had been made from his bank accounts without his consent and he had telephoned the bank and told them to stop.

19 It is convenient to state at this stage that his Honour did not accept the applicant's explanation for his possession of child pornography.

Defence evidence

20 The first witness called on behalf of the applicant was his mother. She described the close and affectionate relationship which the applicant and C had and the relationship C had with her paternal grandparents. The witness did not notice any change in the years 2001 and 2002. When it was proposed that C should accompany the applicant on a holiday to China in 2002, C expressed great excitement. However, she ultimately accompanied her mother and brother on the trip to Queensland already mentioned instead. There had been a proposal that the applicant would move to Queensland and that C should come with him, which she wanted to do.

21 The applicant then called a woman with whom he had lived from early 2000 to early 2002 and the woman with whom he was currently living. They spoke of C's access with the applicant, saying that she was very close and affectionate with him and never seemed intimidated by him. They also stated that she telephoned him frequently. The first expressed the view that it was the applicant who was not being affectionate enough. The second stated that C was usually not pleased to be going back to her mother at the end of each access visit.

The sentencing remarks

22 In the course of his sentencing remarks the judge recorded the submissions of counsel for the applicant before him that, whilst he had no instructions in relation to the offences, the evidence of the complainant showed that she was neither brutalised nor intimidated, no physical force being used and she not being put in fear; that she consented although her consent was obtained by bribery; that the act of sexual penetration was digital, which did not carry with it the "genetic risk of diseases" which may be a consequence of genital penetration; and that the complainant appeared not to have been traumatised, her academic work apparently being unaffected as evidenced by recent results placing her in the top five per cent of her class.

23 His Honour then quoted from the victim impact statements of the complainant and her mother. To summarise: the complainant's mother spoke of her own emotional unrest and feeling of guilt for letting her daughter go with the applicant on her own and referred to the loss of the relationship between the complainant and her grandmother and the sadness on the complainant's face when asked about her father or grandparents. She referred to the "ripple effect" the offending had had on all family members, including the complainant's brother. Trust between the applicant and the children had been destroyed. In her victim impact statement the complainant said that the applicant made her feel as if she was in the wrong. She missed seeing her cousins and grandparents and was scared of the applicant. She had no relationship with her father and felt ashamed and upset when people spoke about their fathers and she was asked about hers.

24 Turning to the circumstances of the applicant, his Honour noted his age as 37 and stated that he had completed his apprenticeship as an electrician and been involved in the installation of technical systems including antennas. His most recent employment was as a sub-contractor working on Internet and Pay TV connections. He had two children, the complainant and her brother. He had been suffering from hepatitis C for about five years. From time to time that gave him severe liver and back pain and his condition was exacerbated by stress and poor diet. His Honour then described the applicant's previous findings of guilt and convictions.

25 His Honour recorded the respective submissions of counsel before him. Counsel for the applicant had discussed sentences in incest cases and had submitted that the judge should take account of the circumstances of the offending; the effect on the complainant; the fact that because of his hepatitis C it was likely that the time the prisoner spent in custody would be more onerous; and that there was some prospect of the applicant's family reconciling with the complainant as shown by the letter from the complainant's mother to the applicant's parents. Counsel submitted that any sentence should not exceed three years with the option of being wholly or partially suspended. The prosecutor, on the other hand, had submitted that the offending involved very substantial breaches of trust, the applicant had used bribery and the applicant had engineered to have his daughter stay with him on her own. He had shown no remorse. During the course of the trial the complainant was unfairly branded as "shifty" and a liar. She had been forced to watch the covert bathroom tapes in order to identify herself. Her cross-examination had been an ordeal. The offences were very serious. If the applicant was sentenced to terms of imprisonment beyond the first two offences, he must be thereafter sentenced as a serious sexual offender. The only appropriate penalty was a custodial one to be immediately served.

26 His Honour then stated his conclusions. The applicant had been found guilty of very serious offences involving the abuse of the trust of his daughter. The jury did not accept the denial in his recorded interview but accepted the complainant's evidence that on three occasions he had photographed her whilst she was naked and adopting poses designed to expose her genital area and provide him with sexual gratification. On one occasion he required his daughter to take photographs of him masturbating and he had sexually penetrated her with his fingers. At all times she was a reluctant participant and his Honour was satisfied she only participated because of the applicant's authority, the trust and affection she had for him and the bribery he employed. His Honour referred to the bathroom video tapes and the attempt to cover up the conduct, but recognised that that was not a matter in respect of which the applicant was charged with any offence. His explanation for possession of child pornography demonstrated a lack of remorse and an inability to come to terms with his offending notwithstanding his plea of guilty, for which he must receive some credit. The applicant's prior convictions showed at the very least a disregard of lawful authority. Specific deterrence must play some part in the sentencing of him. Offences against children, particularly against children to whom affection and respect are owed, must attract severe penalties to denounce the conduct and to deter others. While a significant head sentence was called for, the judge said he would impose a somewhat lower non-parole period than otherwise in order to give the applicant the opportunity of demonstrating that he has faced up to his offending and should be released into the community. A most unfortunate aspect of the case was that the complainant had lost the relationship she had with her father and presently other family relationships had been severely affected. His Honour then proceeded to pronounce the sentence summarised above. After pronouncing the sentences on the first two counts and stating that the applicant must be sentenced as a serious sexual offender for counts 5, 6 and 7, his Honour said that, although the protection of the community must be the principal sentencing purpose, in his view apart from the limited cumulation orders he would make he did not consider that it was otherwise necessary to impose a sentence longer than proportionate to the gravity of the offences.

Conviction ground 1

27 It is now possible to consider the grounds of proposed appeal. Ground 1 was argued on the basis that the verdicts were unsafe because of one or more of the errors alleged in grounds 2 to 6. It therefore calls for no separate treatment.

Conviction grounds 2 and 3

28 Ground 2, complaining of a failure to rule that there is no case to answer in relation to counts 1 and 5, has been overtaken by events. The question now is whether a miscarriage of justice occurred by reason of the convictions on these two counts when there was no physical contact between the applicant and the complainant[5] or, possibly, whether there was a wrong decision of a question of law. If either of those positions were established it would seem that judgments and verdicts of acquittal would have to be entered on those counts. Ground 3 does not of itself lead to that conclusion but, in the present circumstances, grounds 2 and 3 may be considered together. It may be noted that ground 2 does not extend to count 6. [6]

29 The factual basis on which grounds 2 and 3 proceed, namely, that there was no physical contact between the applicant and the complainant, seems correct. His Honour directed the jury as follows:

"No threats or physical contact are necessary to constitute the crime, although in some cases participation by both parties may occur. In the present case what is relied upon is the actions of the [applicant] in requiring his daughter to undress and pose for him whilst he took videos and photographs."

30 It was submitted for the applicant that his Honour was wrong in directing the jury that physical contact was unnecessary in order to constitute the crime of indecent act with the complainant. Reliance was placed on the observations of Winneke, P. (with whose reasons Charles, J.A. and Vincent, J.A. agreed) in R. v. Alexander and McKenzie[7]:

"Although it is true that s.47 of the Crimes Act (Vic) contemplates an offence without consent or concert, it seems to me that the word 'with', used in juxtaposition with the words 'in the presence of' must imply actual physical contact with the victim."

It was submitted for the applicant that he did not commit an indecent act with the complainant (as was charged in counts 1 and 5) because in neither case did he engage in any actual physical contact with her. It was further submitted, in anticipation as I understand it, that to look at a naked girl and to take photographs of her is not an indecent act in the presence of that girl on the part of an accused charged under s.47. To this extent the decision in R. v. Barnes[8], referred to later, should, it was submitted in writing, be distinguished. When counsel's attention was drawn to paragraph [8] of that decision the submission became orally that the case was wrongly decided.

31 In R. v. Coffey[9] it was held that the passage quoted above from the President's reasons in R. v. Alexander and McKenzie was part of the ratio decidendi and binding upon the later Court of Appeal. Mere participating conduct was no longer enough. But it was pointed out[10] that the distinction between an indecent act involving actual physical contact and an indecent act otherwise within purview of s.47 is arbitrary and that fine distinctions were inappropriate, particularly in view of the diversity of indecent acts. It was accordingly held[11] that s.47 created only one offence and that, while the applicant in that case, who had persuaded the complainant to perform a strip dance for him while he fondled his own penis, did not commit an indecent act "with" the complainant as was pleaded in the count, he did commit an indecent act "in the presence of" the complainant. The applicant was accordingly guilty of an offence against s.47. Similarly, in R. v. Barnes it was held[12] that the applicant, who had, so far as relevant, pleaded guilty to counts 1 and 2, which each alleged the commission of an indecent act "with" a child, had committed an indecent act "in the presence of" the child even though there was no actual physical contact with the victim, at any rate in the case of count 2, the indecent act being stated to be staring at the victim's genitals for ten minutes in the case of one count and five minutes in the case of the other while the latter was naked or nearly so. Such a conclusion was not open in R. v. Alexander and McKenzie because what was relied on as the commission of the indecent act (namely, encouraging the complainant in a telephone conversation to masturbate) was clearly not done in the complainant's presence. It was submitted, correctly, for the applicant that R. v. Coffey and R. v. Barnes did not overrule R. v. Alexander and McKenzie. However, in them, unlike R. v. Alexander and McKenzie, the alternative prepositional phrase was applicable on the facts.

32 It follows from the cases reviewed, and particularly R. v. Coffey and R. v. Barnes, that here, although the applicant did not on the facts alleged to constitute counts 1 and 5 commit an indecent act "with" C (as was pleaded), he did in each case commit an indecent act "in the presence of" C; that that is not a different offence from that which was pleaded, but only an alternative expression of it[13]; and that he thereby committed offences against s.47. To amplify the first of those propositions: contrary to the submission for the applicant, in each case the indecent act was the causing of the complainant to assume, and photographing or video recording her in, indecent poses, or at any rate photographing or video recording her in indecent poses. Mr. Tehan did submit orally that the words "in the presence of" required more than mere presence or proximity and that they required some act of encouragement, citing R. v. Lowery and King (No.2)[14]. That submission cannot be accepted. It fastens upon the fact of presence on which the requirements of the common law for aiding and abetting build and deserts the simple language of the statute in question here. The analogy is false. Moreover, the submission is inconsistent with R. v. TSR[15].

33 An alternative submission was made for the applicant that if the applicant's acts were indecent acts "in the presence of" the complainant those words should have been pleaded. Undoubtedly that was desirable, but the wording of the count in this respect was not a material matter. Alternatively, the proviso applied: no substantial miscarriage of justice occurred because, contrary to the applicant's submission, he did not lose a chance of acquittal that was fairly open to him if the jury had those words before them and were properly instructed about them.

34 There was, therefore, no miscarriage of justice or wrong decision of a question of law nor was there any misdirection.

Conviction ground 4

35 Ground 5 having been abandoned, the applicant no longer challenges his Honour's directions as to the use for which the evidence might be put, but only his Honour's ruling that the three categories now in question were admissible. It should be noted that the word "material" in the description in ground 4 of the second and third categories does not refer to physical items of evidence (or real evidence) but to oral evidence (and statements by counsel) as to the finding both of video tapes of sexually explicit material involving consenting adults (including the other material deleted from the longer video tape showing the complainant in the applicant's bathroom, the deleted material including images of the applicant himself) and of various items of sexual apparatus. As Mr. Tehan said succinctly, the words "material concerning" meant "reference to".

36 So far as the first category (the video tapes of the complainant in the bathroom[16]) is concerned, the written submissions for the applicant appear to me not to challenge his Honour's ruling that the video tapes were admissible in the sense of being probative, but to contend only that the judge should have exercised a discretion said to be his to exclude this evidence because of its prejudicial nature. That understanding is confirmed by Mr. Tehan's statement that he was concentrating on the second and third categories and his statement that it was not put that the first category had no probative value, but that its prejudicial effect was very strong, indeed "devastating". It was submitted that, for the video tapes to be admissible, a fairly high barrier had to be surmounted, that they did not have strong probative force and that their prejudicial effect exceeded their probative force. Reference was made to Perry v. The Queen[17] and R. v. Tektonopoulos[18]. Mr. Tehan acknowledged that there had been no objection to the tender of this evidence (or of the other two categories of evidence), but he pointed out, as he was entitled to do, that there had previously been an unsuccessful attempt to exclude the three categories of evidence and that, in response, his Honour had given detailed directions as to what could be tendered and in what terms.

37 In my opinion, the video tapes of the complainant in the bathroom were clearly probative and, subject to the question of any prejudicial effect, admissible. If the jury accepted that the applicant intentionally photographed the complainant when she was in his bathroom, the video tapes showed, or tended to show, an improper sexual relationship existing between the applicant and the complainant or a guilty passion towards her on the part of the applicant, tending to make it more likely that the offences charged in the presentment were in fact committed.[19] Another way of expressing the probative character of the video tapes of the complainant in the bathroom is that they constituted part of the essential background or context against which both the complainant's evidence of the alleged offences and the applicant's recorded interview denying them necessarily fell to be evaluated.[20] It is unnecessary to consider whether the video tapes were also probative as similar fact evidence.

38 This category of evidence is propensity evidence relevant to facts in issue in the prosecution for the offences. It was admissible pursuant to s.398A(2) of the Crimes Act if the court considered that in all the circumstances it was just to admit it despite any prejudicial effect it might have on the applicant. In my view that is what his Honour, who in the course of submissions had been taken to s.398A(2) and cases relating to it, did consider. For he expressed the view that the material, "although likely to be prejudicial to the [applicant] 'goes further than mere propensity and [has] additional probative value which justifies its admission, despite its prejudicial effect'", citing R. v. Vonarx[21]. Section 398A prescribes a rule which must be satisfied before a particular class of evidence is admissible, not a discretion to exclude evidence that is admissible.[22] In my opinion, his Honour's decision to admit the evidence of the video tapes was correct: in all the circumstances it was just to admit the video tapes despite any prejudicial effect they might have had on the applicant.

39 With regard to the second and third categories of evidence it was submitted for the applicant that they were inadmissible because they did not give further meaning to the bathroom video tapes. They had no probative value and were simply highly prejudicial propensity evidence. It was submitted that evidence could have been given that the video tapes were found hidden without any reference to the other material. The other material could not show the relationship between the applicant and the complainant, such reasoning being described as tortuous.

40 In my opinion, these two categories of evidence were relevant and probative and, subject to the question of any prejudice, admissible. They were not probative as founding any propensity reasoning directly tending to show guilt, but as showing the nature of the two video tapes (or at least of the longer one depicting two instances of the complainant showering), both objectively and subjectively from the point of view of the applicant. Thus, the complainant's showering was recorded on the same video tape as had on it at the time of the search sexually explicit material involving consenting adults, including images of the applicant himself. Moreover, that video tape was found secreted in a brief case that contained sexual objects or sex aids and other videos depicting sexually explicit material involving consenting adults. The video tapes, then, were stored not only secretly but together with material the sole concern of which was sexual activity and which, by its nature, showed his preoccupation with sexual matters. These two categories of evidence bore strongly on the question whether the recording of the complainant on the bathroom video tapes was unintentional or, on the other hand, intentional and for a prurient purpose. They tended strongly to show that the video tapes evidenced a guilty passion for the complainant on the part of the applicant or an improper sexual relationship between them.

41 That disposes of the applicant's principal argument relating to these two categories. But it is necessary to consider their undoubted prejudicial effect. Assuming that the evidence now under consideration was "relevant to facts in issue" and not merely to facts relevant to facts in issue, I consider that his Honour's decision to admit the evidence was correct: in all the circumstances it was just to admit it despite its prejudicial effect. It was likely to be of considerable assistance to the jury in assessing the nature of the bathroom video tapes.

42 In his reply Mr. Tehan criticised the use by the prosecutor below, when leading (by agreement) evidence from the informant, of the expression "a grab bag of material, including a number of videos of a sexually explicit nature". He said that it was difficult to imagine anything more prejudicial. But that complaint was not covered by any ground. Moreover, there was no objection to the prosecutor's form of words or any request for a direction to overcome them. The complaint should be disallowed.

43 Although the applicant's written outline purports to invoke the discretion to exclude admissible evidence, there is little room for the Christie[23] discretion to exclude otherwise admissible evidence where s.398A applies. I took the outline to refer to the consideration of prejudice required by s.398A(2). If that be wrong, I do not consider that the judge erred in declining to exercise the Christie discretion in favour of exclusion, assuming that there was room for it to operate.

Conviction ground 6

44 Counsel informed the court that this ground went only to the conviction on count 7. Its genesis is the applicant's asking the police during his interview whether the complainant had been tested. Although there is no transcript of counsel's final addresses, it appears from discussion following the completion of the address of counsel for the applicant and from his Honour's charge that the applicant's counsel had suggested to the jury that a guilty man, knowing that he had penetrated his daughter's vagina, would be unlikely to recommend testing (as the applicant had done) when that was "highly likely" to indicate guilt. In discussion with his Honour counsel accepted that he had overstated the case by using the expression "highly likely", but he contended that testing might well have indicated guilt as more likely. There had been no cross-examination of the informant on the question of medical examination. His Honour stated that he considered that he was obliged to correct counsel's statement and informed both counsel of what he proposed to say on the topic in his charge. Counsel for the applicant did not object to what was proposed.

45 In his charge his Honour introduced the topic by referring to a submission made to the jury by defence counsel about the failure of the prosecution to call medical evidence, particularly in the light of certain answers (or statements) by the applicant in his recorded interview, which his Honour then summarised. His Honour continued:

"In his final submissions [counsel] said to you, 'Why did the accused ask for testing to be done, testing which if he were guilty would be highly likely to demonstrate his guilt?' I must tell you that there is no basis for [counsel] to make the statement that a medical examination would in particular circumstances be highly likely to incriminate or to exculpate the accused. There is no evidence to support that assertion. You can accept that the police did not have the complainant medically examined, as the prosecution has an obligation at law to disclose such matters to the defence.

However, in the absence of such evidence you should not speculate as to what might have been the result of any medical examination of the complainant.

You should look to the evidence that is before you when determining whether the prosecution has established that the accused had on the occasions alleged placed his fingers inside his daughter's vagina."

There was no exception to this passage.

46 Mr. Tehan informed this Court that he did not criticise his Honour's direction to the jury not to speculate, but he submitted, without elaboration, that counsel's comment below was tenable and that the judge should not have directed the jury as he did.

47 In my opinion, the passage set out from his Honour's charge was entirely unexceptionable. The basis for counsel's rhetorical question to the jury, that, if the applicant were guilty, medical examination would be highly likely to demonstrate that, was speculative and the question by implication or suggestion elevated that speculation to fact. In truth, the point was one on which medical evidence, referable to the particular circumstances, was required. In short, the rhetorical question or implied comment was not tenable and required correction. There is nothing in this ground.

Conclusion as to conviction application

48 For the foregoing reasons, the application as to conviction must be dismissed.

Sentence ground 2

49 I turn to the application as to sentence. It is convenient to take ground 2 first. As indicated earlier, his Honour referred to the applicant's hepatitis C twice. The first time he did so constituted a finding by him as to the condition. The second time was to record the submission made to him that it was likely that the time the applicant spent in custody would be more onerous. It was submitted to this Court that there was sentencing error because there was no finding to that effect. It may be noted that there was no medical evidence on the question, but simply (as so often happens) only counsel's assertion on instructions. Be that as it may, I am not persuaded that his Honour, having stated the facts of which he was informed by counsel and having recorded counsel's submission only three and two pages respectively before he actually pronounced sentence[24], failed to place any weight on (or take into account) the applicant's condition and its likely effect. As regards the weight he gave the condition and its effect, that is best considered under ground 1.

Sentence ground 1

50 It was submitted for the applicant that the sentences were manifestly excessive having regard to the applicant's age of 37 years, he still being, it was said, a relatively young man; his good work record; his new permanent relationship; his suffering from hepatitis C; and the fact that his prior convictions were for dissimilar offending, implied criticism being made of his Honour's statement that at the very least they showed a disregard of lawful authority and that specific deterrence must therefore play some part in the sentencing. It was submitted that in the light of those considerations, particularly lack of prior criminality for similar conduct, the sentences were heavy and that the total effective sentence of six years' imprisonment was stern and should be interfered with along with the non-parole period. Mr. Tehan stated in oral submissions that the total effective sentence was in the forefront of his attack but he did submit that the individual indecent assault sentences were high. He further stated that he could not suggest that the offending was not serious and, in response to a question from the Chief Justice, stated that he could not say anything about remorse.

51 It must be understood that sentencing is a discretionary exercise and that accordingly (putting aside mandatory sentences) there is no single correct sentence. Rather, there is a range of sentences open to the sentencing judge in the exercise of a sound discretionary judgment. Whether a sentence is manifestly excessive (or manifestly inadequate) is a conclusion which does not admit of much elaboration. For a challenge to a sentence as being manifestly excessive or manifestly inadequate to succeed the sentence must be unreasonable or plainly unjust. Here, I am quite unpersuaded that any individual sentence or any direction for cumulation or the non-parole period was outside the range available to his Honour, particularly when regard is had to the maximum penalties for the respective offences and when it is remembered that the applicant fell to be sentenced as a serious offender in respect of counts 5, 6 and 7. The considerations which his Honour treated as aggravating or showing the offending to be serious are set out earlier in these reasons. It is sufficient to say that they lead me to the conclusion which I have expressed on this ground.

Conclusion as to sentence application

52 For the foregoing reasons the application as to sentence should also be dismissed.

53 I agree, for the reasons given by Batt, J.A., that the applications for leave to appeal against conviction and sentence should be dismissed.

[1] It is unnecessary in these reasons to refer to the statutory alternative of being a party to the commission of an indecent act.

[2] Including that the evidence challenged by ground 4 (below) relating to conviction was admissible.

[3] The transcript actually records the exact reverse.

[4] The transcript, as I construe it, inaccurately records that the applicant was arraigned on seven counts, including count 8, and pleaded not guilty to all counts.

[5] Maric v. The Queen (1978) 52 A.L.J.R. 631 at 635; and Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 at 441.

[6] Mr. Tehan suggested that that was because of a VATE answer of the complainant which suggested that the applicant did take one or two photographs while touching her vagina.

[7] [2002] VSCA 183; (2002) 6 V.R. 53 at 78[52]. (Emphasis added)

[8] [2003] VSCA 156.

[9] [2003] VSCA 155; (2003) 6 V.R. 543 at 550[20] and [21].

[10] At 550[21] and [22].

[11] At 550[23].

[12] At [8].

[13] Early in his address Mr. Tehan, asked whether the presentment could be read as including "in the presence of" C, said that it could, if s.47 created only one offence, as it does. (Later he submitted that the presentment should have been amended.)

[14] [1972] VicRp 63; [1972] V.R. 560 at 561-2.

[15] [2002] VSCA 87; (2002) 5 V.R. 627 at 656-657.

[16] As requested by counsel for the respondent, I have viewed the video tapes.

[17] [1982] HCA 75; (1982) 150 C.L.R. 580 at 586.

[18] [1999] VSCA 93; [1999] 2 V.R. 412 at 416-7.

[19] R. v. Vonarx [1999] 3 V.R. 618 at 623[13] (a case decided in 1995 before the enactment of s.398A of the Crimes Act) and cases there cited, including R. v Ball [1911] A.C. 47.

[20] Ibid.

[21] At 622[14].

[22] R. v. TJB [1998] 4 V.R. 621 at 632.

[23] R. v. Christie [1914] A.C. 545.

[24] As the sentencing remarks are recorded in the transcript.