R v D D [2002] VSCA 112

5. On 13 April, after a trial during which the applicant gave sworn evidence denying the commission of the offences, the jury convicted him on all counts. He was then arraigned on count 17 and pleaded guilty. As will later appear, he also pleaded guilty to a sole count of indecent assault on another Presentment L.02373285.2. After hearing a plea for leniency, during which the learned judge received medical reports and character references tendered by the defence, and Victim Impact Statements tendered by the Crown, the applicant was sentenced, on 14 July 2000, to a total effective sentence of "six years" imprisonment. The learned judge fixed a non-parole period of four years six months and made a declaration as to 93 days pre-trial detention.

8. The applicant had no prior convictions. On 28 July 2000 he lodged notice of application for leave to appeal against sentence pleading some seven grounds.

11. On 22 September 2000 the applicant obtained from Buchanan, J.A. leave to appeal against his sentence. His Honour noted three grounds in particular.

"1. That there is inconsistency and disparity between the period of cumulation, such as to entitle the applicant to feel aggrieved. 2. That there is inconsistency and disparity between the sentences, such as to entitle the applicant to feel aggrieved.. 4. That the sentence imposed on counts 7, 12, 13, 17 and 18 are disproportionate to the offending."

(Although the above leave was granted, I find it convenient to use the expression "applicant" throughout.)

18. On 13 March 2001 the applicant obtained from this Court an extension of time within which to make application for leave to appeal against the convictions sustained by him on counts 1, 2, 3 and 6. He subsequently did make such application and pleaded the following grounds.

"1. At all relevant times Section 369 of the Crimes Act 1958 provided as follows: `Every Presentment shall be indorsed with a statement of the specific offence or offences with which the accused person is charged and shall contain, and shall be sufficient if it contains, such particulars as are necessary for giving reasonable information as to the nature of the charge.' 2. The Statement of Offence indorsed on a Presentment identifies the offence(s) for which an accused person is charged and identifies upon conviction what offence(s) a person has been convicted of. 3. If there is no clear Statement of Office identifying the particular section of the particular Act under which a person is charged and convicted then any conviction could be held to be ambiguous because of uncertainty as to what offence(s) a person has been convicted of and the conviction quashed. 4. The Presentment brought against the Applicant had a Statement of Offence indorsed on the backsheet which identified the particular charges brought against the applicant and also identified the provision of the Crimes Act 1958 under which the charges had been brought. 5. The relevant parts of that indorsement are as follows: 5.1 `Indecent assault (9 counts; 1-3, 6-11).' 5.2 `... contrary to Sections 44(1), 39(1), 69(4), 47(1), 49(1) and 48(1) of the Crimes Act 1958.' 6. The indecent assaults alleged in counts 1, 2, 3 and 6 were said to have occurred in the period between 1 January 1978 and 31 December 1980. 7. The applicant was charged and convicted of these counts under Section 44(1) of the Crimes Act 1958 which makes it an offence to indecently assault another person. The fact that the applicant was charged and convicted on counts 1, 2, 3 and 6 for this offence must follow from the statements as to the offences charged in the Statement of Offence. The words used in counts 1, 2, 3 and 6 are also consistent with the provisions of Section 44(1) which speaks of `another person' in that there is no reference to the sex of the complainant. 8. Section 44(1) of the Crimes Act 1958 making it an offence to indecently assault another person, was introduced by Act No. 9509/1980 being the Crimes (Sexual Offences) Act 1980 and the commencement date of the Section was 1 March 1981. 9. Therefore the offence under Section 44(1) did not exist at the time the offences under counts 1, 2, 3 and 6 were said to have occurred. 10. In the period between 1 January 1978 and 31 December 1980 alleged in counts 1, 2, 3 and 6, there was then current an offence of unlawful and indecent assault of a male person under the provisions of Section 68(3A) of the Crimes Act 1958. This offence was part of the law in Victoria in the period between 8 November 1967 and 1 March 1981. 11. The applicant was not charged with or convicted of an offence under Section 68(3A) in respect of counts 1, 2, 3 and 6 because there is no reference to Section 68(3A) in the Statement of Offence indorsed on the Presentment nor does the Statement of Offence refer to `a male person' in the counts themselves nor in the Statement of Offence. 12. In the result if the applicant was charged and convicted of offences which did not exist at the time it is said the offences occurred, his convictions on counts 1, 2, 3 and 6 are invalid. Further the proceedings in respect of counts 1, 2, 3 and 6 were void ab initio and amounted to a nullity. 13. Further and in the alternative if the Presentment in respect of counts 1, 2, 3 and 6 is ambiguous in that it is unclear as to what offence the convictions relate to (either Section 68 (3A) or Section 44(1) of the Crimes Act 1958) then that ambiguity necessarily means there has been a fundamental flaw in the proceedings which necessarily involves a miscarriage of justice."

22. The counts upon which the applicant was convicted included nine counts of indecent assault, two counts of gross indecency, two counts of indecent act with a child under 16, two counts of indecent act with a 16 year old child, and one count of sexual penetration with a 16 year old child under care, supervision or authority. He also pleaded guilty to one count of indecent act with a child under 16 and one count of indecent assault.

25. Prior to his retirement in 1994 or 1995, the applicant was a Catholic priest. The complainants in respect of count 17 and the count on Presentment L.02373285.2, were members of a parish in which he served. The remaining complainants are relatives of the applicant. I now turn to a summary of the evidence for which I have had recourse to the material supplied to this Court.

Counts 1 to 3, Indecent assaults upon "B", between 1 January 1978 and 31 December 1978

32. In 1978 "B" stayed some days at the home of his grandmother, the applicant's mother. The applicant visited that residence during that period. On one such visit the applicant entered "B's" bedroom as he lay in bed reading. He fondled the boy's chest with one hand and then placed his other hand inside the child's pyjama pants and fondled his penis. This lasted about 10 minutes. After he had finished the applicant told "B" not to tell anybody or something would happen to him. The complainant was scared during the incident, and also when he was warned off by the applicant. (Count 1)

35. The following morning the applicant entered the bathroom as the complainant was showering. He commenced washing the boy's back with one hand while he played with his penis with his other hand. He did that for several minutes. (Count 2)

38. After the boy left the shower, the applicant dried his back with a towel using one hand, and again played with his penis. (Count 3) Again, after these incidents, the applicant told "B" not to tell anybody "or something would happen".

Count 4, gross indecency with "B", between 1 January 1978 and 31 December 1979

42. On a separate occasion, apparently in the following year, "B" was again staying with his grandmother for several days. On an occasion during this visit he was lying on a fold out bed in the lounge room watching television. The applicant was also visiting. He entered the room, sat in a chair, took off his pants, and began, masturbating in the presence of the child. After a time he walked towards "B", still masturbating. The applicant then left the room. (Count 4)

Count 5, gross indecency with "P", between 1 January 1980 and 31 December 1980 and Count 6, Indecent assault upon "P", between 1 January 1980 and 31 December 1980

46. "P" was six years of age at the time of the offending.

49. On one occasion "P" stayed the night at his grandmother's home when the applicant was also visiting. After the grandmother had gone to bed the applicant and complainant were watching television in the lounge room. "P" was wearing pyjamas and was seated on a foot stool in front of the applicant. The applicant placed the boy's hand on his (the applicant's) erect penis and told him to play with it. The boy lifted his hand up and down on the adult's penis. The activity continued for "a fairly long time". (Count 5) Afterwards, the applicant touched "P's" body and placed his hand, or hands, inside the boy's pyjama pants and played with his penis. This did not continue for very long.(Count 6)

Count 7, indecent assault upon "M", between 1 January 1982 and 31 December 1982

56. When she was aged about 10 years "M" stayed overnight at the grandmother's house. There were a number of family members present, including the applicant. "M" offended the applicant in some way, and was sent by her grandmother to apologise to him. She joined him in the grandmother's room and he asked her to sit on his lap. He then rubbed her upper body under her clothing with his hand, before proceeding to put a hand down the inside of her shorts. His fingertips only went underneath the elastic waist of her shorts as she then got off his lap and left the room.

Counts 8 and 9, indecent assault upon "J", between 19 November 1989 and 5 February 1991

60. "J" was born on 3 June 1977. Throughout the period November 1989 to February 1994, the applicant held the position of parish priest in a country town.

63. In about 1990 when he was aged about 13 years, "J" stayed for about a week during school holidays with the applicant, at the presbytery where he resided. On one evening during that week, after they had been playing cards at the kitchen table and after the applicant had consumed a large quantity of beer, the applicant suggested to "J" that they give each other a massage. He appeared to be effected by the alcohol. "J" massaged the applicant's back, and then the applicant commenced massaging the boy's back. He then massaged his nipples, and then, on the outside of his jeans, his buttocks. The applicant then asked to see "J's" underpants. The boy undid the top of his jeans, and the applicant then pulled his jeans down halfway to his knees and fondled the boy's penis through his underpants.(Count 8) Very shortly after that the boy said he was tired and he went downstairs to his bedroom. The applicant followed him. He massaged his nephew's back as he lay on the bed for some time, and then had him roll over and massaged his front. The applicant then undid the boy's pants and massaged his genital area, touching his penis through his underpants. (Count 9) "J" stated that he went along with these activities because he was "shit scared". He had no way to get home and was concerned the applicant could turn violent.

66. The next day the applicant told "J" not to tell anybody what had taken place or he would be in big trouble The applicant had previously told "J" on numerous occasions that he was going to leave him his car in his will, and he now also threatened he would be struck out of his will.

Counts 10 and 11 indecent assault upon "J", between 19 November 1990 and 5 February 1992

70. The following year "J" again stayed with the applicant during school holidays. Again on one evening the same type of conduct occurred in the kitchen after the applicant had drunk a quantity of beer. Again he followed "J" to his bedroom where he massaged his body and then began rubbing his penis through his underpants. (Counts 10 and 11)

Counts 12 and 13, indecent act with child under 16 "J" between 19 November 1991 and 5 February 1993

74. In 1992 "J", now aged 15, again stayed with the applicant in the country presbytery. Again one evening the applicant drank a large number of cans of beer while in the kitchen and much the same conduct took place. Again he massaged or rubbed "J's penis over or through his underpants. (Count 12) Again the boy retreated to his bedroom, claiming to be tired, and the applicant followed him. He massaged his body and then fondled his penis, outside the boy's underpants. The applicant asked "J" to "suck" him off. He refused, but the applicant continued to fondle or touch his penis. (Count 13)

Counts 14 and 15, indecent act with child aged 16 "J" between 19 November 1993 and 5 February 1994 and Count 16, sexual penetration of child aged 16 "J" between 19 November 1993 and 5 February 1994

78. The following year, 1993, "J" again came to stay with the applicant at the country presbytery. Again on one evening, after consuming a quantity of beer, the applicant massaged "J's" body and then touched his penis through his underpants, causing the boy to ejaculate in his pants. (Count 14) Again the applicant followed "J" when he went to his bedroom and there massaged his body, including his genitals. (Count 15) He then pulled his underpants down and performed fellatio upon him for about five minutes. (Count 16) When he did not ejaculate, and when the boy declined to fellate the applicant, the applicant became annoyed and left the room.

81. Each time the complainant visited the applicant he would do odd jobs such as lawn mowing for him. He would be paid about $30 for this work. After each assault the applicant reiterated his original threat that "J" would be in trouble if he told anyone.

Count 17, indecent act with child under 16 "S" on 6 November 1994 (the applicant pleaded guilty to this count after his trial).

85. "S" was a member of the applicant's country parish. He was born on 31 May 1980, and was aged 14 at the time of the offence. The applicant became friends with "S's" parents, and would often dine at their house. He also became friendly with "S", and would treat him as something of a favourite, giving him gifts and other privileges. When "S" was 11 years old the applicant paid him $50 to mow his lawn. In later years he continued to pay him excessive amounts for this service. On a number of occasions through this period the applicant behaved physically to "S", hugging him in an overpowering manner, which left "S" feeling powerless and vulnerable.

88. On 6 November 1994 the applicant approached "S" at a parish school event, and asked him to assist him in the church sacristy. He then drove the boy to the church. There he purported to have an interest in the material of "S's" track-suit. He pulled out the waist band of the track-suit pants, and then put his hand down the inside of the pants and rubbed the boy's genitals. He observed "S's" shocked response, and desisted in this conduct. "S" told no-one about this incident, fearing he would not be believed over the priest, and also fearing he would be labelled as gay.

91. As earlier indicated, the applicant also pleaded guilty to the sole count on Presentment L.02373285.2 (referred to in the papers as count 18).

Count 18, indecent assault upon "G" on 12 December 1994

95. "G" was a member of the applicant's country parish. He was 24 years of age in 1994, and formed a friendship with the applicant. He was in fact himself considering entering the priesthood.

98. On the evening of 12 December 1994 "G" visited the applicant at his home. He found the applicant visibly drunk, and was invited inside by him. The applicant hugged him in apparent greeting and in the course of this hug, rubbed the young man's penis and groin area with one hand while grabbing his buttocks with the other. These touchings were on the outside of his clothing. "G" stopped the applicant immediately and confronted him, but the applicant denied having done anything. The applicant later telephoned "G's" home where he spoke to his parents. In that conversation and a later conversation with "G", the applicant apologised for his behaviour and admitted that he needed help.

101. I now turn to the arguments of counsel on this application. Mr Maguire for the applicant began his submissions by referring to what he called the "applicable general principles", asserting that in the normal course of events a person cannot be convicted of an offence which did not exist in law at the time it is said that it was committed. He referred to observations of Deane, J. in Polyukhovich v. The Commonwealth of Australia & Anor.[1]. His Honour there stated, "The basic tenet of our penal jurisprudence is that every citizen is `ruled by the law and by the law alone'". After citing Dicey and Blackstone, he continued, "Put differently, it is basic to our penal jurisprudence that a person who has disobeyed no relevant law is not guilty of a crime". He later added "Accordingly, the whole focus of the criminal trial is the ascertainment of whether it is established that the accused in fact committed a past act which constituted a criminal contravention of the requirements of a valid law which was applicable to the act at the time the act was done. It is the determination of that question which lies at the heart of the exclusively judicial function of the adjudgment of criminal guilt."

104. Mr Maguire then referred to R. v. Tuttle[2] and Meek v. Powell[3] as examples of cases touching an indictment which was "defective on its face".

107. In Tuttle, an individual was indicted for fraudulent conversion as a trustee contrary to s.21 of the Larceny Act 1916. The evidence at trial revealed that the alleged offence had been committed in March 1916 whereupon the trial judge was informed that the 1916 Act did not come into force until January 1917. After argument, the indictment was amended by substituting for s.21, s.80 of the Larceny Act 1861. A conviction later ensued. On appeal it was held that the amendment was rightly allowed although the indictment was originally defective by reason of the wrong Statute having been inserted. As the 1861 offence was in practically identical terms to that of the Act of 1916, the applicant could not have been prejudiced by the amendment, nor could any injustice have been done to any defence he might have had.

110. In Meek v. Powell, the respondent had been convicted in a court of summary jurisdiction on two informations alleging sales of adulterated milk, contrary to s.24 of the Food and Drugs Act 1938. The offences were alleged to have been committed in May 1951. Section 24 had been repealed (but re-enacted in identical terms) by another statutory provision which came into force on 1 January 1951. On appeal to Quarter Sessions it was held that the informations were bad as charging an offence under a repealed Statute. Amendment was refused and the convictions quashed. Upon further appeal by the prosecutor, Lord Goddard, C.J., Byrne and Parker, JJ. confirmed that the informations were bad. Mr Maguire relied on observations of Lord Goddard:

"I would only add one word. If this were a conviction on indictment, and the indictment had charged an offence under the wrong section, although the Court had power to amend the indictment before the trial and put the right section in, it seems clear that if the conviction took place without the indictment being amended, the Court of Criminal Appeal would have no option but to quash the conviction."

114. Counsel then turned to the instant case submitting that the applicant's convictions on counts 1, 2 3 and 6 were with respect to a crime which did not exist at the time it was alleged to have been committed. He referred to the Crimes Act 1958 s.369.

"Every Presentment shall be endorsed with a statement of the specific offence or offences with which the accused person is charged and shall contain, and shall be sufficient if it contains, such particulars as are necessary to give reasonable information as to the nature of the charge."

118. The Presentment filed against the applicant, counsel pointed out, had a Statement of Offence endorsed on its back sheet. Relevantly, it contained the following parts:

"Indecent assault (nine counts); (1 to 3, 6 to 11)". "...contrary to Sections 44(1), 39(1), 69(4), 47(1), 49(1) and 48(1) of the Crimes Act 1958".

The Statement of Offence endorsed on a Presentment, Mr Maguire submitted, identifies the offence or offences for which an accused person is charged and identifies upon conviction the offence or offences of which such a person stands convicted. If there be no clear Statement of Offence identifying the particular section of the particular Act under which a person is charged and convicted, so the argument went, then any conviction could be held to be ambiguous because of uncertainty as to what offence or offences it related to and any conviction ought to be quashed accordingly.

123. Counsel also reminded the Court that the indecent assaults referred to in counts 1, 2, 3 and 6 were allegedly committed in the period between 1 January 1978 and 31 December 1980, (hereinafter referred to as "the relevant period"). But, by reason of the statements as to the offences charged in the Statement of Offence, it must be, it was contended, that the applicant was charged and convicted of those counts under s.44(1) of the Crimes Act 1958 which made it an offence to indecently assault "another person". S.44(1) was introduced by the Crimes (Sexual Offences) Act 1980 (No. 9509) which had a commencement date of 1 March 1981. Accordingly, it was submitted, during the relevant period (1 January 1978 to 31 December 1980), s.44(1) did not exist.

126. During the relevant period (indeed from 8 November 1967 to 1 March 1981), counsel continued, there did exist another statutory provision, s.68 (3A) of the Crimes Act 1958. This created an offence of unlawful and indecent assault of a male person. The applicant was not charged with or convicted of an offence under this section, it was submitted, for there was no reference to it in the Statement of Offence endorsed on the Presentment. So, too, the expression, "a male person", which appears in the section, does not appear in either the Statement of Offence or in the relevant counts themselves.

129. If the applicant was charged and convicted of offences which did not exist at the time it was alleged those offences occurred, Mr Maguire submitted, then the applicant's convictions on counts 1, 2, 3 and 6 are invalid. Further, the proceedings in respect of them were void ab initio and amounted to a nullity. Alternatively, it was contended there was uncertainty as to what offence the applicant was tried and convicted with respect to counts 1, 2, 3 and 6 and this uncertainty involved a fundamental flaw in the proceedings and a consequent miscarriage of justice. Counsel cited "S" v. The Queen [4], Rippingale v. The Queen[5] and Kailis v. The Queen[6].

132. "S". v. The Queen[7] was a case where a father was charged and convicted of three counts of carnal knowledge of his daughter, each count being laid "between dates". The daughter gave evidence of two specific acts of intercourse without linking them to any of the "between dates" periods. She also gave evidence of many other acts over a period of two years dating back from November 1982 (the first of the "between dates" periods beginning on 1 January 1980 and the last ending on 8 November 1982). The High Court quashed the convictions and ordered a new trial. Toohey, J. observed (283):

"This trial was fundamentally flawed in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant `carnally knew' the complainant. Put that way, the acts of intercourse described in the generalized evidence were available, not merely as going to prove any of the offences charged against the applicant but as the offences themselves. In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion and that it occurred within the period specified in the count. There was a real likelihood that they would convict the applicant on the basis that since acts of carnal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment."

136. In Rippingale[8], a decision of the Court of Criminal Appeal of Western Australia, the applicant had been convicted in the District Court of a count of possession of a quantity of cannabis on 14 August 1996 with intent to sell or supply it to another person. The marginal note on the indictment referred to the "Misuse of Drugs Act 1981 (W.A.), s.7 (1) (a),". In the District Court the Crown Prosecutor appeared to have conceded that the relevant quantity of cannabis was some six plants. The applicant's counsel submitted in the Court of Appeal that, if this be so, the District Court lacked jurisdiction, in that another provision of the Act provided for trial of s.7 (1) charges in a summary court where, relevantly, there were less than 100 plants. The Crown countered with a submission that it was clear from the papers that the applicant had pleaded guilty to an offence under s.6(1) (a) of the Act of possession of cannabis with intention to sell or supply. All of the members of the Court of Appeal agreed the indictment was ambiguous and the conviction should be quashed. Malcolm, C.J., with whom Ipp, J. agreed, observed, "In my opinion, it is clear that the indictment was ambiguous. It was capable of being read as alleging either an offence under s.7 (1) (a) as suggested by the marginal note or, as suggested by the Crown itself, an offence under s.6 (1) (a)". Wallwork, J. added, "The appellant could not know of which offence he was convicted, an offence under s.6 or an offence under s.7 of the Act. The indictment was inherently ambiguous."

139. In Kailis v. The Queen[9] the applicant was charged on indictment with having committed, upon her step-daughter, a number of sexual offences on five separate occasions between 1 February 1990 and 31 December 1994. Some counts alleged an indecent dealing between 1 February and 30 June 1990 and another a similar dealing between 1 February 1990 and 1 February 1991. A marginal note on the indictment which referred to each of these counts specified s.189 of the Criminal Code (W.A.). On 23 March 1990 this section was amended so as to substitute an offence of indecently dealing with a person under the age of 16 years for an offence of indecently dealing with a girl under the age of 13 years.

142. Other counts alleged an indecent dealing on a date unknown between 1 February 1990 and 31 October 1992. Again, as to each of these counts, there was a reference on the indictment to s.189. From 1 August 1992 that section was repealed and a new s.320 was introduced. Yet another count alleged on a date unknown between 1 February 1990 and 31 October 1992 the applicant sexually penetrated a child under the age of 16 years without her consent. In this instance a marginal note referred to s.324E of the Code. From 1 August 1992 this section was repealed and a new s.326 was introduced. Section 324E as at 1 February 1990 provided that:

"Any person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 20 years." (Another section provided that it was a circumstance of aggravation if the victim was under the age of 16 years.)

"A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and is liable for imprisonment for 20 years."

150. By s.319 (1) which came into effect at the same time as s.326, "circumstances of aggravation" included the victim being of or over the age of 13 years and under 16 years.

153. After some evidence had been heard, the Crown prosecutor accepted in the course of a discussion that the evidence did not establish any particular date between the periods specified in counts 1, 4, 6, 7 and 8 on which the offence, the subject of the particular count, occurred. Argument ensued, following which the trial judge allowed amendments to the indictment, inserting in the marginal notes to counts 6 and 7, a reference to s.320(4), and in the marginal note to count 8 a reference to s.326. Thereafter, the notes to counts 6 and 7 referred to both ss.189 and 320 (4) and the notes to count 8 referred to both ss.324E and 326.

156. In allowing the appeal as to part, the court held that each of counts 1, 4, 6, 7 and 8 alleged two separate and distinct statutory offences and were bad for duplicity, notwithstanding that in the case of some counts the elements of the offences pleaded therein were the same and in others the offence was constituted by the same conduct rendering an offender liable to the same punishment. So, too, the convictions on the above counts were uncertain, there being no way of determining which of the possible offences the applicant stood convicted. Further, if, during the timeframe pleaded with respect to a count the legislation creating the offence was replaced by new legislation, a person is entitled to an acquittal on both offences in circumstances where the Crown is unable to prove whether the offence occurred before or after the replacement. Finally, it was held that in the instant case, there must have been a fundamental flaw in the proceedings necessarily involving a miscarriage of justice and this was so despite the absence of a motion to quash the indictment or objection to its form.

159. Mr Maguire concluded his submissions by contending that the convictions on counts 1, 2 3, and 6 should be quashed and judgment and verdicts of acquittal should be entered in lieu thereof. He referred to R. v. Tait[10], a case in which an accused person had pleaded guilty to offences the prosecution for which had been commenced outside a relevant statutory timeframe for commencement. The convicted person appealed against sentence but was permitted to amend his grounds so that the court treated the proceedings as an application for leave to appeal against conviction as well. The court held that the convictions were, in the relevant sense, illegal and directed a judgment and verdict of acquittal.

162. I find it convenient to refer to the arguments of Mr McArdle for the Crown in the course of stating my conclusions.

165. The Crimes Act 1958 (No. 6231) included a s.68 (1) (3) which, paraphrased, reads:

"Whosoever...is guilty of...any indecent assault upon a male person, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than ten years."

169. S.3 of the Crimes (Amendment) Act 1967 (No. 7577) amended the above section by repealing the words, "or of any indecent assault upon a male person" in ss.3 thereof and inserting the following sub-section:

"(3A) Whosoever unlawfully and indecently assaults any male person shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than five years."

As previously indicated, this provision came into operation on 8 November 1967 and continued its operation until its repeal by the Crimes (Sexual Offences) Act 1980 (No. 9509) and the advent of s.44 of the Crimes Act from 1 March 1981. S.44(1) reads:

"The person who indecently assaults another person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years."

175. When one compares the 1967 and the 1980 legislation, the existence of the word "unlawfully" in the former is noted. I would uphold the submission of Mr McArdle that this word adds nothing to the description of the offence. I would also uphold his submission that the circumstance that the 1967 legislation related solely to offences against males is of no particular account.

178. In the Crimes Act 1958, which is printed in the Consolidation volumes of that year (Act No. 6231), there appears a s.37 which, paraphrased, reads:

"...Whosoever is convicted upon presentment...for a common assault shall be liable to imprisonment for a term of not more than two years."

This section was repealed by the Crimes (Amendment) Act 1985 but it was held in R. v. Patton, Caldwell and Robinson[11] that s.37 did no more than prescribe a maximum penalty for the offence of common assault which was, and always had been, a common law indictable offence. It was further held that the repeal of s.37 did not by implication abolish that common law offence. Its effect was to leave the offence of common assault as a common law offence capable of being tried on indictment and for which the penalty was at large.

183. Accordingly, I am satisfied that during the relevant period there existed in Victoria, at common law, an indictable offence of common assault. I would further uphold the Crown submission that, with respect to the relevant period, s.68 (3A) provided a maximum penalty of five years' imprisonment when that indictable offence occurred in "circumstances of indecency". Indecent assault has long been so defined[12]. I am also of the opinion that, whatever the endorsement on the Presentment contained, the applicant could not have been convicted of "an offence under s.44(1)". That section did not in exist during the relevant period. Accordingly, no question of uncertainty or duplicity arises. It is also clear, in my view, that no prejudice in the form of misinformation, lack of information or embarrassment in presentation of defence accrued to the applicant by reason of the s.44(1) endorsement, which was plainly a mistake. Indeed, at least at the time of the plea, and possibly earlier, his trial counsel was of the opinion that "the first few counts on the Presentment are perhaps incorrectly framed in the sense that prior to 1980 an indecent assault was either an indecent assault of a male or a female". As to this, he told the judge, "Nothing turns on that".

186. It follows that the cases cited by Mr Maguire do not assist the applicant. Tuttle and Meek v. Powell were cases of different offences created by statute. "S" a case of uncertainty of verdicts and inadmissible evidence. Rippingale and Kailis were cases, occurring in a Code state, and involving ambiguous and duplicitous indictments.

189. I now turn to the matter of the reference to s.44(1) in the Statement of Offence. I would uphold Mr McArdle's submission that the inaccuracy touches only a Statutory provision which identifies a maximum penalty and not one which creates an offence. In any event, throughout the relevant period, the maximum penalty for indecent assault remained the same.

193. It is unnecessary to recite the arguments of counsel that this appeal should be allowed. In my opinion, the need for this Court to intervene is manifest. In this connection it is sufficient to mention the failure of the learned judge to appreciate that his cumulation directions resulted in a head sentence of six years and three months and the imposition of sentences of three years' imprisonment with respect to counts 12 and 13 when apparently identical conduct attracted sentences of half that length on other counts. In the leave application, this disparity was described by Buchanan, J.A. as "unexplained, indeed, mysterious". Indeed, Mr McArdle did not object to the appeal being allowed on the basis of the mathematical error alone. It therefore falls to this Court to re-sentence the applicant.

196. In a plea for leniency, Mr Maguire relied on all those matters personal to the applicant which had been put before the judge in the County Court. He also submitted that a total effective sentence akin to that imposed in the Court below would be a manifestly excessive sentence in all the circumstances. The same could be said of the non-parole period there imposed. Counsel argued that substantial concurrency was appropriate in respect of counts which relate to "the same occasion and which were part of a continuing episode". He specified, in this connection, counts 2 and 3; counts 5 and 6; counts 8 and 9; counts 10 and 11; counts 12 and 13 and counts 14, 15 and 16. Mr Maguire also pointed out that on nine, possibly ten occasions, the applicant's touching of victims genitals was outside an item of clothing then being worn.

199. Mr McArdle submitted that counts 12 and 13 carried a maximum penalty in each instance of ten years' imprisonment and the sentences imposed on those counts were properly available. No inconsistency could be reasonably suggested with the sentences imposed on counts 17 and 18, having regard to the applicant's plea of guilty to those counts. A total effective sentence to the order imposed below was appropriate having regard to the applicant's lack of remorse, his persistent breach of trust and the age of his victims and their relationship to him.

202. The maximum penalties available for the applicant's offences are ten years for counts 12 and 13; three years for counts 5, 14, 15 and 16 and five years for the balance of the counts.

205. The applicant falls to be sentenced as a serious sexual offender with respect to counts 3, 6, 7, 8, 9, 10, 11, 12, 13 and 17. Like the sentencing judge, having given consideration to s.6D of the Sentencing Act 1991 I am of the opinion that it is not appropriate to impose a sentence for any offence other than that which is proportionate to the gravity of that offence.

208. The composition of a fresh sentence for the applicant involves consideration of the circumstances of the applicant's offences, including their aggravating circumstances pointed to by Mr McArdle; matters personal to the applicant and in his favour; the relevant aspects of the Victim Impact Statements and the maximum penalties available. He pleaded guilty to two counts but there is little evidence of remorse. The applicant, 57 years of age at the date of sentencing, had not been involved in criminal conduct before 1978. That the offences are serious - some very serious - has not been gainsaid.

211. Doing my best to balance competing considerations I would impose sentences of 18 months' imprisonment on each of counts 1, 2, 3, 6, 8, 9, 10, 11, 12, 13, 14 and 15. I have included counts 12 and 13 in this group notwithstanding the higher maximum penalty available. I would impose sentences of 12 months' imprisonment on counts 4, 5, 17 and 18, noting the applicant's plea to the latter two counts. I would impose a sentence of eight months' imprisonment on count 7. I regard the offence constituting count 16 as the most serious committed by the applicant. This offence is devoid of any mitigating circumstance and was performed on a victim who was repeatedly threatened. I believe it warrants the imposition of the maximum penalty available - three years' imprisonment.

214. In my opinion, this is a very plain case for some cumulation of sentences. Indeed, the contrary was not submitted. Each progressive involvement of a victim in the applicant's criminal conduct constituted a real addition to his criminality. On the other hand, there is some force in Mr Maguire's submissions touching counts relating to "the same occasion and which were part of a continuing episode". In my opinion all sentences should be served concurrently with each other except for six months' of the sentence on count 1, six months' of the sentence on count 4, three months' of the sentence on count 7, six months' of the sentence on count 8 and three months' on each of the sentences on counts 17 and 18 making for a total effective sentence of five years and three months' imprisonment. I would fix a non-parole period of four years.

217. At the conclusion of argument Mr McArdle was granted leave to make written submissions concerning the power of this Court to amend a Presentment. He has supplied such submissions and I am indebted to him therefor. I shall refer only to two cases which he has cited. They are R. v. Hunter and Hunter CCA (Vic) unrep. Judgment delivered 25 May 1987 and R. v. Higgins CCA (Vic) unrep. Judgment delivered 2 March 1994. They are cases where the Court of Criminal Appeal directed amendments to Presentments. In the first of these the endorsement on the Presentment merely recorded the total effective sentence imposed with respect to each offender. The sentences passed on individual counts were not recorded. In the second case, the endorsement failed to record an acquittal on one count and the absence of a verdict on another. In my opinion, these cases are far removed from the instant one. The impugned endorsement in this matter is, in my view, an inconsequential mistake. Accordingly, assuming this Court has power to do so, no amendment is necessary.

222. Having read the reasons prepared by the Chief Justice, I agree that the application as to conviction should be dismissed, the appeal as to sentence allowed, and the applicant resentenced in the manner proposed, in each case for the reasons given by his Honour.

227. In my opinion, the application for leave to appeal against conviction should be dismissed for the reasons given by the Chief Justice and the appeal against sentence should be disposed of as is proposed by his Honour.

[1] [1991] HCA 32; (1991) 172 C.L.R. 501 at 609 and 610

[2] (1929) All E.R. 107

[3] (1952) 1 K.B. 164

[4] [1989] HCA 66; (1989) 168 C.L.R. 266

[5] (1999) 109 A. Crim. R. 304

[6] [1999] WASCA 29; (1999) 21 W.A.R. 100

[7] [1989] HCA 66; (1989) 168 C.L.R. 266

[8] (1999) 109 A. Crim. R. 304

[9] [1999] WASCA 29; (1999) 21 W.A.R. 100

[10] [1996] VicRp 48; [1996] 1 V.R. 662

[12] See Smith and Hogan, Criminal Law, 1965 and R. v. Nisbett [1953] VicLawRp 42; [1953] VLR 298 at 300