R v Delgado-Guerra [2001] QCA 266

SUPREME COURT OF QUEENSLAND

CITATION: R v Delgado-Guerra; ex parte A-G [2001] QCA 266

PARTIES: R / v / DELGADO-GUERRA, Carlos / (appellant)

FILE NO/S: CA No 324 of 2000 / DC No 1143 of 2000

PARTIES: R / v / DELGADO-GUERRA, Carlos / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)

FILE NO/S: CA No 338 of 2000 / DC No 1143 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction; sentence appeal by A-G (Qld)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 17 July 2001

DELIVERED AT: Brisbane

HEARING DATE: 29 May 2001

JUDGES: McMurdo P, Thomas JA and Helman J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal against conviction dismissed. The Attorney-General’s appeal is allowed. The sentences at first instance are varied by replacing the sentences on counts 2 and 5 with sentences of 15 years imprisonment. The declaration of serious violent offence should be set aside and replaced by declaration that the conviction on count 6 is a conviction of a serious violent offence.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – BURGLARY AND LIKE OFFENCES - OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – where appellant convicted of breaking and entering a dwelling house with intent, rape and sexual assault / CRIMINAL LAW – EVIDENCE – SIMILAR FACT – ADMISSIBILITY GENERALLY – whether propensity evidence properly admitted – purposes served by the reception of propensity evidence – purposes included identifying offender and rebutting innocent explanation for his fingerprints near point of entry – whether probative value outweighed the prejudicial effect – adequacy of evidence to pass the test in Pfennig – no need for striking similarity in all respects / CRIMINAL LAW – EVIDENCE – SIMILAR FACTS – RELEVANCE – PROOF OF IDENTITY OF THE ACCUSED – GENERALLY – whether a direction must be given such that the jury must be satisfied beyond a reasonable doubt of the propensity evidence before it can be used to support an inference of guilt – where the identify of the perpetrator is in question – ‘signature test’ rejected – whether need for separate proof beyond reasonable doubt of each similar fact when the purpose of the evidence is to support the identification of the accused as the perpetrator – McGranaghan test rejected – whether propensity evidence should be regarded as an indispensable intermediate step in the reasoning process towards an inference of guilt – where such direction need not be given and the propensity evidence is to be regarded as a strand in assisting to identify the offender and not a separate link which itself proves the identity of the offender / EVIDENCE – ADMISSIBILITY AND RELEVENCY – HEARSAY STATEMENTS – whether admissions of appellant made by his counsel on earlier plea of guilty were admissible to prove earlier incident – whether counsel an agent with ostensible authority to make statements on the appellants behalf – prima facie admissible although the truth of such admissions might be rebutted / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where ambiguity in orders endorsed on indictment – amendment of judgment – where appropriate sentence for break and enter followed by rape of the occupant in her own home was held to be 15 years / Criminal Code, s 644, s 657A / Criminal Practice Rules 1999 (Qld), r 62 / Evidence Act 1997 (Qld), s 53 / Penalties and Sentences Act 1992 (Qld), Pt 9A / Recording of Evidence Act 1962 (Qld), s 10 / A [1997] QCA 237; CA No 158 of 1997, 8 August 1997, distinguished / Barclay [1999] QCA 457; CA No 272 of 1999, 3 December 1999, considered / Daphney [1999] QCA 69; CA No 328 of 1998, 16 March 1999, considered / King [1995] QCA 77; CA No 483 of 1994, 22 February 1995, considered / KRM v The Queen [2001] HCA 11, applied / McGranaghan [1995] 1 Cr App R 559, distinguished / Michaux CA No 49 of 1984, 29 June 1984, distinguished / Pfennig v The Queen (1995) 182 CLR 461, applied / Press [1997] QCA 77; CA No 489 of 1996, 14 February 1997, distinguished / R v Best [1998] VICSC 125; CA No 57 of 1998, 23 July 1998, considered / R v Birks (1990) 19 NSWLR 677, considered / R v O'Keefe [2000] 1 Qd R 564, applied / Shepherd v The Queen (1990) 170 CLR 573, considered / Tomlin [1995] QCA 177; CA No 56 of 1995, 4 April 1995, considered / Williams [1996] QCA 216; CA No 136 of 1996, 6 June 1996, considered

COUNSEL: S Hamlyn-Harris for the appellant/respondent / D Meredith for the respondent/appellant

SOLICITORS: Legal Aid Queensland for the appellant/respondent / Director of Public Prosecutions (Queensland) for the respondent/appellant

PRESIDENT: I agree with the reasons for judgment of Thomas JA in which the relevant facts are set out. I only wish to add the following brief comments.

The admission of the similar fact evidence in this case is consistent with the approach taken by the Court in similar factual circumstances in R v Pryor.¹

Pryor also supports the conclusion that the sentence of 12 years imprisonment imposed in this case was manifestly inadequate and that a sentence of 15 years imprisonment should be substituted. In 1989, Pryor was convicted of burglary and rape committed in 1988 and was sentenced to eight years imprisonment. In July 2000, he was convicted of entering a dwelling house and rape committed in 1996 and was sentenced to seven years and 14 years imprisonment respectively, concurrent with each other but cumulative upon the eight year sentence for rape imposed in 1989, having apparently committed the 1996 offences whilst on parole. In October 2000, Pryor was convicted of a further burglary and rape committed in 1988 and was sentenced to life imprisonment. In September 2000, he was convicted of burglary and rape committed in 1985 and on that count was sentenced to 15 years imprisonment. The Attorney-General appealed against that 15 year sentence and Pryor applied for leave to appeal against the sentence. Pryor was 18 years old at the time of the offence and had no prior convictions, although his subsequent conduct demonstrated that he was a serial rapist of women in their own homes. The Court noted that no cumulative sentence could be imposed on the life sentence,² but in any case found that the sentence of 15 years imprisonment was within a sound exercising discretion.

I agree with the orders proposed by Thomas JA.

THOMAS JA: This is an appeal against convictions upon the following six counts:

Breaking and entering a dwelling house with intent (Townsville 8 February 1990);

Rape of Ms Graham;

Entering a dwelling house in the night time with intent (Townsville 14 June 1993);

Unlawful carnal knowledge of Ms Malcolm, an intellectually impaired person;

Breaking and entering a dwelling in the night time with intent (Brisbane 1 March 1999);

Indecently assaulting Ms Parkinson.

The charges relate to three separate incidents of breaking and entering a dwelling house followed by a sexual assault upon the female occupant. The events relating to counts 1 and 2 will be referred to as "the Graham incident", those relating to counts 3 and 4 as "the Malcolm incident", and those relating to counts 5 and 6 as "the Parkinson incident".

There is also a cross-appeal by the Attorney-General against the alleged inadequacy of the sentences that were imposed.

The grounds of appeal include objection to the reception of similar fact or propensity evidence. The propensity evidence, which the appellant submits should not have been received, falls into two categories. Firstly, the evidence in relation to each of the above three incidents was regarded as cross-admissible and was received in relation to all counts. Secondly, evidence proving that the appellant had on two other occasions unlawfully entered houses and performed acts of sexual impropriety in the bedroom of a female occupant was also received.

The evidence in the second category consisted of two incidents. The first of these ("the Prietz incident") occurred in Townsville in 1991. The appellant unlawfully entered the premises of his next door neighbour and entered the bedroom of the 10 year old female occupant who woke to the sound of heavy breathing, or a weird "sort of grumbling noise through his throat". The girl saw a man kneeling near her bed for perhaps 20 minutes before he departed through the window and replaced the screen before leaving the scene. The girl's father saw some liquid on the floor which was examined by a police scientific officer. There was evidence from which it could be inferred that the liquid was semen. Police were able to develop several latent fingerprints from the flyscreen and the window ledge, but were unable to identify any person from them. However, the appellant pleaded guilty to being found in the dwelling home without lawful excuse. The second incident ("the Mejia incident") occurred in Townsville in 1994. Again, the Mejia family was known to the applicant. When the 16 year old daughter had gone to bed she heard the back door open and later saw the appellant standing next to her bed undoing the zip of his trousers. He touched her on the legs, upon which she screamed and the appellant departed.

Following those incidents, he was charged and pleaded guilty.

There are some rather striking features in the evidence brought against the appellant in respect of the counts in the present indictment. In each of the Graham, Malcolm and Parkinson incidents the following features were present:

There was an illegal entry in the early hours of the morning;

The appellant lived in the near vicinity of each complainant;

Entry was made through a window;

The appellant's fingerprints were found at or near that point of entry;

The intruder proceeded to the bed of the complainant;

The sexual assault commenced while the complainant was asleep;

On the first occasion the complainant was raped; on the second occasion there was intercourse with a girl suffering from Down's Syndrome; and on the third occasion the offender commenced rubbing the complainant's clitoris but desisted when she resisted, repelled and challenged him.

Each complainant gave a description of the intruder which was not particularly detailed, but which on the whole was reasonably consistent with the appearance of the appellant, although the Down's Syndrome complainant, who suffered some intellectual impairment, suggested that the attacker had an aboriginal appearance.

The issue at trial was not whether the offences occurred but whether the appellant was the perpetrator.

The appellant gave no evidence.

Admission of evidence relating to the other counts on the indictment

I shall deal firstly with ground (c) which states that the learned judge erred in law in ruling that the evidence on each of the counts was admissible in the other counts on the indictment. Counsel for the appellant, Mr Hamlyn-Harris, placed primary emphasis upon this ground, as the identity of the offender was disputed in these counts whereas it was not disputed that the appellant had been the offender in the Prietz and Mejia incidents.

The reception of propensity evidence may serve different purposes. These include identification of the accused as the person who committed the offence, rebuttal of an innocent explanation for the act in question, proof of a state of mind that is an element of the offence, and various other purposes. In the present case the evidence of the additional counts is potentially relevant to the identification of the appellant as the perpetrator and also to rebuttal of an innocent explanation of his fingerprints at each point of entry.

Mr Hamlyn-Harris relied upon the statement in Pfennig³ that "obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed". The evidence in question, he submitted, goes to proof of identity which is a disputed issue. This factor, he submitted, suggests that the evidence should not have been received, and if necessary should have been excluded in the exercise of the trial judge's discretion. There was, however, no dispute about the actual facts, but rather about the inferences that might properly and safely be drawn from such facts. Mr Hamlyn-Harris submitted that the evidence in question fails Pfennig's requirement of a high degree of cogency, and that the occurrence of three incidents rather than one does not logically make it any more likely that the appellant was the offender, unless there was such a striking similarity between them that the only rational inference that could be drawn was that he was the offender.

There could, of course, be innocent explanations for the appellant's fingerprints being found on or near a window through which entry was effected, although I note that none was suggested either by evidence or by rational argument. Perhaps misadventure unrelated to the commission of the offence could be advanced in relation to a particular count, in which case the jury might be asked to regard it as an unlucky coincidence from the appellant's point of view that some other perpetrator had also been in the vicinity, gone through the same window and sexually attacked the occupant. But the logical acceptability of such a premise would be severely weakened when the same explanation was suggested in relation to a second incident. And it would reach vanishing point when there was a third such combination of facts. In my view the evidence in relation to the additional counts has a very high cogency indeed, both in rebutting the coincidental explanation and in identifying the same person, namely, the appellant, as the perpetrator.

I do not find it necessary to rehearse the cases in considering this particular point. Nor do I find it necessary to discuss the English cases of DPP v P⁴ and R v Wharton.⁵ These cases were cited to support the proposition that when the identity of the perpetrator is in issue, propensity evidence should not be received unless it reveals a signature or some other special feature pointing to the accused as the offender. The English and Australian cases have diverged somewhat in this area of the law. It is difficult to think that some special requirement or different test should be applied in relation to the use of propensity evidence for proof of identify than for the other purposes for which it may be admitted. There is no good reason why the fingerprint evidence should be taken out of the combination of proven facts in relation to each of the offences. The essential question is whether the evidence is cogent enough to be admitted as proof of identification of this offender. The suggested "signature" test in my view raises an unnecessary distinction and ought not to be followed. But in any event the evidence here would be sufficient to satisfy it. There are few better signatures than fingerprints. The present evidence not only stamps the offences as having been committed by the same person, it also shows that that person was the appellant. Applying the principles identified in Pfennig,⁶ O'Keefe⁷ and KRM v The Queen,⁸ I am of the view that this evidence was correctly admitted.

Admission of evidence of the Prietz and Mejia incidents

I turn to the ground that objects to the reception of evidence of the Prietz and Mejia incidents. Here Mr Hamlyn-Harris concedes that there is no uncertainty in relation to the offender. He also concedes that it is not a precondition to the reception of such evidence that the events bear a striking similarity to those of the charge in question, referring to Pfennig at page 482. Indeed, in Pfennig itself there was only one other similar incident alleged, and the evidence of that incident did not establish that Pfennig killed or intended to kill the boy whom he attacked on that occasion. That, however, did not deprive the evidence of sufficient probative value to justify its reception on Pfennig's trial for murder.

The evidence in relation to the Prietz and Mejia incidents, in common with the offences that are charged, proves unlawful night time entries of premises near those of the applicant followed by movement to the bedroom of a female occupant and the performance of a sexual action. The Prietz incident involved entry through a window. The appellant admitted that he was the perpetrator in both instances, and that fact may be regarded as conclusively established. It is not suggested that the circumstances are strikingly similar to those of the offences charged, and the question here is whether there are sufficient similarities with the circumstances of each of the incidents charged to render the evidence probative through their tendency to suggest that the same offender was involved in all. If one makes a point by point comparison with the common features that have earlier been noted in relation to the charged offences,⁹ there is a substantial equivalence with all of the first five items, and some similarity and some dissimilarity in the last two items The following comparative table illustrates this.

Common features of offences charged Features of thePrietz and Mejia incidents

1. There was an illegal entry in the early hours of the morning. 1. There was an illegal entry in the early hours of the morning.

2. The appellant lived in the near vicinity of each complainant. 2. The appellant lived in the near vicinity of each complainant.

3. Entry was made through a window. 3. Entry was made through a window in the Prietz incident. In the Mejia incident entry was through an unlocked door (an understandable variation when an unlocked door was available)

4. The appellant's fingerprints were found at or near that point of entry. 4. The appellant's fingerprints were not identified, but, perhaps even more conclusively, it was admitted that the appellant was the offender in each of these incidents.

5. The intruder proceeded to the bed of the complainant. 5. The intruder proceeded to the bed of the complainant.

6. The sexual assault commenced whilst the complainant was asleep and she awoke in the course of it. 6. The appellant may be inferred to have commenced an act of self-gratification near Ms Prietz's bed before she awoke to grumbling noises. Ms Mejia awoke shortly before the sexual activity commenced.

7. On the first occasion the complainant was raped. On the second occasion there was intercourse with a girl suffering from Down's Syndrome; and on the third occasion the offender commenced rubbing the complainant's clitoris but desisted when she repelled and challenged him. 7. The Prietz incident did not involve his touching the complainant. In the Mejia incident he made a sexual approach but departed when she screamed.

The combined effect of the first five items is quite strong. The variations in terms 6 and 7 do not assist the Crown case, but neither are they matters that effectively diminish the overall positive capacity of the evidence to suggest that the offender was the appellant. In my view the propensity evidence of each of these incidents is sufficient to support an inference that the appellant was guilty of the offences charged. The evidence satisfies the requirements of Pfennig and O'Keefe. Accordingly, ground (a) of the appeal fails.

Directions on propensity evidence

The following ground was permitted to be added to the original grounds of appeal:

"The learned judge erred in the directions to the jury as to the use they could make of evidence relied upon by the Crown as propensity evidence, and the standard of proof required in respect of individual items of propensity evidence."

I do not understand any objection to be taken to the adequacy of her Honour's directions as to the manner of use of such evidence. The essential submission is the learned trial judge failed to instruct the jury that they must be satisfied beyond reasonable doubt of the propensity evidence before it could be used to support an inference of guilt. In the course of his argument Mr Hamlyn-Harris referred to McGranaghan,¹⁰ Downey,¹¹ Barnes,¹² R v Best¹³ and R v Kotzmann¹⁴ and Smith.¹⁵

The starting premise of the submission was that the Crown had no case against the appellant without recourse to the propensity evidence. In the circumstances of this case where in both the Malcolm and Parkinson incidents there was evidence of window frames having been cleaned by the owner not long before the offences, and of the finding of fingerprints shortly after the offences, in the absence of any explanation how the appellant's fingerprints came to be there, I am inclined to think that a "no case" submission would not succeed, and that the premise is incorrect.

The submission proceeded that it is necessary for a jury to be told to take a sequential approach to propensity evidence when the purpose of its admission is to support identification of the accused as the perpetrator. In particular reliance was placed upon the following statement of Glidewell LJ in McGranaghan.¹⁶

"If it is sought to adduce similar fact evidence in order to prove that one of two or more offences was committed by the defendant, in our view such evidence may only be admitted if the jury are sure on evidence other than the similar fact evidence that the defendant is guilty of the other offence."

No rationale is presented for that conclusion. It is merely stated as a rule, and I am not aware of any authority that requires this complication to be introduced into a summing up. McGranaghan was followed in Downey (above) and distinguished in Barnes (above). In my view the above passage is implicitly inconsistent with the principles stated in Shepherd v The Queen¹⁷ which deals with the topic of standard of proof of individual items of evidence in the context of a circumstantial case. Propensity evidence is always evidence of a circumstance in a circumstantial case, although such cases have been described as circumstantial cases of a special kind.¹⁸ Shepherd rebuts the heresy (which some commentators had apparently erroneously understood Chamberlain v The Queen (No 2)¹⁹ to support) that a jury could not view a fact as a basis for an inference of guilt unless they were satisfied beyond reasonable doubt of the existence of that fact.

The true inquiry in the present case seems to be whether the propensity evidence should be regarded as an indispensable intermediate step in the reasoning process towards an inference of guilt.

"Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning."²⁰

I do not see the propensity evidence in the present case as an indispensable intermediate link. As McHugh observed in a more general context, the cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance. His Honour further observed:

"No doubt a trial judge has the right to suggest to the jury that they might think that, on the evidence, they could not be satisfied that the accused was guilty beyond reasonable doubt unless they found that a particular fact was proved beyond reasonable doubt. But the existence of that right in the trial judge provides no support for the proposition that the jury must be directed that they cannot rely on a circumstance to found an inference of guilt unless that circumstance is proved beyond reasonable doubt."²¹

I remain of the view expressed in O'Keefe²² that propensity evidence is -

"... more appropriately ... seen as a strand that assists in identifying the accused as the perpetrator of a particular act rather than as a separate link which itself proves the identify of the offender. Indeed propensity evidence can never of itself prove the facts in issue. It is always ancillary to other proof."

It was further said in O'Keefe -

"In the whole history of reception of similar facts or, as it is now called, propensity evidence, it has never been suggested that such evidence needs to prove the whole case before it can be received. It has always been received as ancillary evidence aimed at strengthening other evidence presented against the accused."²³

A similar view may be found in R v Best²⁴ -

"There must always be at least some direct evidence of the offence charged and evidence of similar facts cannot be substituted for it. Only in a practical sense can it ever be said that a prosecution case 'depends entirely on propensity reasoning': cf. Pfennig's Case at p.530. Very often such evidence serves only to confirm direct evidence of the offence charged that would not, on its own, have satisfied the jury beyond reasonable doubt."

I do not think that a separate direction was necessary to the effect that the question whether the appellant was the offender had to be separately considered in relation to the propensity evidence accompanied by another direction that unless that evidence proved that issue beyond reasonable doubt it could not be used in the circumstantial case. The segregation of such an issue in this way is not warranted, and there is no compelling reason why such an issue ought to be identified as an indispensable intermediate step for the purposes of proof of ultimate guilt. The subdivision of the components of such a case in this way and the requirement that a jury apply different standards of proof to different items is not here necessary. I consider, with respect, that the approach suggested in McGranaghan leads the court into a maze from which return is difficult. I accordingly reject the appellant's primary submission.

Her Honour directed in the following terms:

"Do you consider that the similarities between the earlier offences and the acts which form the subject of the indictment are so striking that you are satisfied beyond reasonable doubt that the same person was responsible?"

And again:

"Are the similarities so striking that you are able to exclude co-incidence beyond reasonable doubt?"

In relation to all of the propensity evidence her Honour further directed that the question for the jury to consider was:

"Is the objective improbability of that evidence having some innocent explanation, or an explanation other than as alleged by the prosecution, such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged?"

I do not consider that any further direction was required to the effect that the jury must be satisfied separately in relation to the Malcolm, Graham, Parkinson, Prietz or Mejia matters beyond reasonable doubt before they could use that particular evidence as supporting an inference of guilt. In my view the learned trial judge's directions on these issues were adequate and indeed were favourable to the accused.

Refusal to stay

A pre-trial ruling was given in which a stay of proceedings upon counts 3 and 4 was refused. It was submitted that the ruling was an error in law. The counts in question (the two counts relating to the Malcolm incident) were said to be counts upon which a fair trial was now impossible because some of the forensic evidence had been lost or destroyed. The lost evidence of course may have assisted the Crown or the defence. Counsel for the appellant conceded that once the evidence in question was lost the defence was in much the same position as it would have been had the evidence not been obtained in the first place or the state of scientific knowledge had not advanced to the point where the evidence was probative. The absence of the evidence was of course a circumstance that the jury was entitled to consider. However the unfortunate loss of this particular evidence falls well short of a proper basis for avoidance of trial. There was no error in refusing the stay.

Reception of transcript of proceedings as part of proof of Mejia incident

In November 1995 the appellant pleaded guilty in the District Court of Townsville to entering a dwelling house at night with intent, and unlawfully assaulting Ms Mejia. In order to prove the Mejia incident in the present case, Ms Mejia and her father were called as Crown witnesses. A certificate of conviction was also tendered under s 53 of the Evidence Act as evidence of the fact of conviction, without objection. The submissions made by the appellant's barrister on the occasion of the plea of guilty at Townsville were also admitted as evidence of the facts concerning that incident. The transcript itself was admissible under s 10 of the Recording of Evidence Act 1962 as evidence of what was said at the hearing. The objection was based upon the fact that such statements were not direct statements of the accused, that is to say, that they were hearsay evidence. It was conceded that it could be inferred that the appellant had given instructions to that effect. The evidence was admitted as admissions against interest made on behalf of the appellant.

On appeal it was submitted that the only section of the Code which allows for the making admissions at a trial on behalf of an accused by his or her counsel is s 644; that evidence of admissions at another trial was inadmissible; and alternatively that it should have been excluded in the exercise of the court's discretion.

In my view the evidence was rightly received. The appellant's counsel upon his plea of guilty was his agent with ostensible authority to make statements on his behalf. The conduct of trial counsel on behalf of a client is conduct which a jury in that trial is entitled to take into account, even to the extent of inferring that certain instructions must have been given leading to particular questions being asked.²⁵ Whilst care must be exercised when drawing such inferences, and whilst further evidence may show that such an inference ought not to be drawn, as for example where there is reason to think that there may have been a misunderstanding or an absence of instructions,²⁶ there is no logical reason why a barrister's statement on behalf of an accused and made in the presence of the accused may not be used in that or any other criminal trial. The prima facie binding consequences for the client from the actions of his barrister are emphasized in R v Birks.²⁷

Counsel make statements on behalf of the offender on such occasions with the offender present. If relevant statements of this kind were not at least prima facie admissible against the offender in subsequent proceedings because he did not make them himself, criminal justice would be very difficult to administer in the courts. In my view the statements in the transcript of proceedings may be regarded as statements against interest made by a duly authorized agent, and also possibly as evidence of the appellant’s assent by silence. The truth of such admissions could be contradicted by evidence that they were contrary to instructions or that they were otherwise erroneous. However in the absence of any reason to think that the statements in question were unreliable there is no proper basis upon which the learned trial judge ought to have excluded such evidence. The evidence served the relevant purpose of providing a fuller picture of the appellant's conduct upon the occasion in question.

This ground is therefore without merit.

Refusal of declaration of mis-trial

One answer given by Mr Mejia in recounting the circumstances of the incident involving his daughter was inconsistent with the admissions received against the appellant in the transcript for which reference has just been made. It concerned the question whether Mr Mejia had expected the appellant to be in his house on that occasion. Mr Hamlyn-Harris for the appellant conceded, rightly in my view, that it would be difficult to think that the reception of Mr Mejia's answer on that point could have done any real harm to the defence or deprived the appellant of a chance of acquittal. Quite apart from this, I can see nothing objectionable in evidence being led by the Crown of a circumstance inconsistent with an admission already led. As already indicated, the truth of an admission is itself an issue and may be the subject of evidence by either Crown or defence. I see nothing different in the present situation than that in any other case where the Crown calls evidence from witnesses whose evidence to some extent contradicts the evidence of other witnesses.

There is no merit in this ground.

For the above reasons the appeal against conviction should be dismissed.

Attorney-General's appeal on sentence

The following sentences were imposed.

Count 1 (breaking and entering with intent) - 10 years

Count 2 (rape) - 12 years

Count 3 (entering with intent) - 12 years

Count 4 (unlawful carnal knowledge) of an intellectually impaired person - 5 years

Count 5 (breaking and entering with intent) - 12 years

Count 6 (indecent assault) - 7 years.

Her Honour also imposed a requirement that for a period of three years after his release the respondent notify police of his place of address and of any change of address. The respondent was declared to be convicted of a serious violent offence in respect of count 6. It is to be remembered that the offences in relation to Ms Graham and Ms Malcolm were committed prior to the introduction of Part 9A of the Penalties and Sentences Act in 1997. That regime has been held not to apply to offences committed before the enactment of Part 9A.²⁸ Further, although those provisions were in force when the offences were committed involving Ms Parkinson, count 5 (breaking and entering with intent) is not a scheduled offence to which such provisions apply. Accordingly the only offence that could have been made subject to the serious violent offender regime was count 6.

Counsel for the Attorney-General submitted that the learned sentencing judge had intended to make such a declaration in respect of both counts 5 and 6. On this basis he submitted that her Honour erroneously considered that she had in fact subjected the respondent to that regime in respect of the 12 year sentence imposed on count 5, and that in consequence he would not be eligible for parole until 9.6 years had passed. That, it was submitted, suggests that in fixing 12 years as the maximum and operative sentence her Honour probably selected a sentence at the lower end of the range, conscious of the effect that Part 9A would have upon the sentences, and with the principles of Bojovic²⁹ in mind. However, having studied the transcript I can find no proper basis for attributing such an erroneous view to her Honour and do not consider that this rather tortuous argument would justify this Court in concluding either that her Honour erred with respect to the statutory regime or selected a lower operative sentence than she might otherwise have done.

However there is an ambiguity in the orders endorsed upon the indictment and in the verdict and judgment record which is kept pursuant to r 62 of the Criminal Practice Rules. In each instance there is a statement of the sentences imposed upon all of the six counts, followed by a declaration that "the accused is declared a serious violent offender". The ambiguity means that it would be possible for the Corrective Service authorities to regard a declaration as having been made in respect of all the counts, whereas no such declaration could lawfully have been made in respect of any count other than count 6. Counsel for the Attorney-General agreed that whatever the outcome of the Attorney-General's appeal, it would be appropriate that the verdict and judgment record be amended to confine the serious violent offender declaration to count 6.

The respondent is now 41 years old and was aged between 30 and 39 at the time of the offences. His criminal history consists of the Prietz incident which occurred after the Graham incident, and the Mejia incident (which occurred subsequently to the Graham and Malcolm incidents). The conviction in respect of the Mejia incident included three further occasions of unauthorized visits to the Mejia's house. Apart from these matters, his only other conviction was of indecent dealing with a child under 12 in October 1990, in respect of which he was granted a discharge under s 657A of the Code, upon his entering into a recognizance to be of good behaviour for two years.

Notwithstanding that the criminal history is not extensive, the six proven criminal incidents between 1990 and 1999 show the respondent to be a repeat sexual offender with a recurring habit of obtaining entry into the homes of vulnerable female victims and of taking advantage of them in their sleep.

The five year sentence on count 4 (unlawful carnal knowledge of an intellectually disabled person) seems low, but that was the maximum sentence for that offence at the time of its commission in 1993.³⁰

The seriousness of these offences comes from the repetition of similar criminal conduct and from the vulnerability of the complainants. Each incident involves a combination of securing entry into the house of a sleeping woman and the commencement of a sexual assault whilst the woman was asleep. As has been observed previously, people are entitled to feel safe inside their own homes, and the commission of offences of this kind is regarded as a serious matter. The circumstances of the rape of Ms Graham were that she awoke to find someone on top of her moving on her body. Her initial thought was that it was her boyfriend who had come home unexpectedly, but she soon realized that this was not so. She felt a penis moving in her vagina for several seconds. She struggled. He attempted to hold her down. They rolled off the bed onto the floor. She tried to kick at him and he then retreated and disappeared. This produced a considerable psychological and emotional effect upon the complainant as is evident from her victim impact statement.

The Malcolm incident involved an attack upon a 20 year old intellectually disabled person who suffered Down's Syndrome. Ms Malcolm lived with her parents and brother. The respondent knew where the complainant lived because he had been to the house to speak to her brother about purchasing a motor vehicle sometime previously. He was also a member of the same church where the complainant and her family attended. He entered the house after midnight and went to the complainant's room where sexual intercourse occurred. She was heard by her brother, who occupied another bedroom, to say "Stop. It's hurting". Believing that his sister was having a bad dream he called out to comfort her. At some stage, possibly soon after this, the respondent left the scene. The complainant suffered considerable psychological effects and her life has been seriously affected by these offences.

The Parkinson incident involved entry into Ms Parkinson's caravan followed by an indecent assault. She awoke to find a hand rubbing her genitals. She pushed the hand away, turned on the light and the respondent fled. Again there has been significant emotional and psychological affect from the event.

The learned sentencing judge noted the serial nature of the offences and expressed the view that the respondent was a danger to the community and especially to vulnerable women in their homes. Her Honour also observed that the repeated nature of the offences escalated their seriousness and that a sentence in excess of 10 years was appropriate for the last offence.

Counsel for the Attorney-General submitted that imprisonment of between 15 and 18 years should have been imposed. Reference was made to the cases of Tomlin,³¹ Daphney,³² King,³³ Barclay³⁴ and Williams.³⁵ Counsel for the respondent referred to Press,³⁶ A³⁷ and Michaux.³⁸ In Tomlin McPherson JA mentioned his impression that the "tariff penalty" for the offence of rape committed after breaking into a woman's home "ordinarily begins with imprisonment for a term of 12 years". In that case combined sentences amounting to 16 years imprisonment were upheld with respect to an attempted rape in October 1994 and the rape of an 85 year old woman in a retirement village some six weeks later. Tomlin had a fairly substantial criminal history, but not of any similar offences.

Daphney was sentenced to 15 years imprisonment in respect of a single incident in which he broke into and entered a dwelling and committed rape. There were concurrent offences of dishonesty, but these do not seem to have played a significant part in constructing the sentence. Daphney, although only 18 years old, had a lengthy criminal history of breaking, entering and stealing. The complainant was only four years old. The circumstances of that offence are worse than those in the present matter. However, taking into account the serial nature of this respondent's activity, it is difficult to think that overall his sentence should be less than that of Daphney. However there are difficulties in making comparison between these cases.

King was convicted of offences stemming from three separate episodes involving attacks on three separate women all on the one day. The first woman was abducted in a car park and later raped in her car. The second woman, who was his cousin, was visited at her house and raped in her bedroom and the third who was also known to him was visited in her house and attacked but she escaped. In each instance King produced a knife and threatened to use it. He had a moderately extensive criminal history although not for offences of a sexual nature. A sentence of 15 years on each count of rape was reduced to 13 years. The sentences can be seen to be in respect of extraordinary aberrational conduct over one day, and do not have the serial character of the present offences.

In Williams and in Barclay, sentences of 14 years and 15 years were upheld respectively in respect of a series of attacks on the one complainant over the one night. Each offender had a prior history of sexual offences.

The sentences to which I have so far referred suggest that the present sentences were too low. However counsel for the respondent referred to Press³⁹ where the Court of Appeal reduced a sentence of nine years with parole after four years to one of seven years with parole after three years. Press committed an offence in some respects comparable with the present respondent's first offence. He broke into her premises and had sexual intercourse before she realized he was not her boyfriend. After the complainant screamed the men in the house administered a severe beating to Press who was left with residual permanent disability to his face and vision. This was regarded as going to some extent in mitigation of sentence. He was described as having led an honest and useful life and his misconduct was said to have been contributed to by a drinking problem. It was accepted that he had no memory of events after leaving a nightclub where he had been drinking heavily. Although the majority in that matter (Fitzgerald P and Davies JA) noted that such an offence is more serious when committed against a woman in her own home, the only case to which reference was made for the purposes of sentence was Stirling⁴⁰ which was not such a case. The third member of that Court (Fryberg J) dissented. In my view Press is difficult to reconcile with the usual level of sentencing in such matters.

Counsel for the respondent also referred to A⁴¹ and Michaux.⁴² I do not regard A as in any way comparable with the present matter. It concerned rapes and indecent assaults committed by A upon his stepdaughter on occasions many years prior to the bringing of the charges. Neither is Michaux in which a medical practitioner had raped many patients after administering a stupefying drug to them. In that case, which was decided in 1984, the Court of Criminal Appeal declined to increase the 10 year sentence that was imposed. I do not think that the level of sentence appealed in that case provided any contemporary guidance as to the appropriate level of sentence for a planned series of rapes.

Of course it must be remembered that the present offences were committed some years ago, and only the Parkinson incident occurred after the legislative requirements of more serious penalties for violent offenders became law in 1997. Counsel for the respondent also submitted that the Court should hesitate before varying the present sentences upon an Attorney's appeal, citing Everett v The Queen⁴³ and R v Melano; ex parte Attorney-General.⁴⁴ There is however no particular circumstance in the present matter which should deflect this Court from imposing an appropriate sentence if it considers that the sentences imposed were manifestly inadequate. Counsel for the respondent referred to the absence of significant violence, the absence of any weapon and the fact that the respondent desisted when resistance was clear. These submissions are entitled to some weight, but the seriousness of the repeated pattern of offending raises considerable concern. In the circumstances of the present case it is perhaps understandable that no psychiatric or other evidence explaining the respondent's conduct was presented on his behalf during the sentencing procedure. A consequence however is that nothing is provided which affords any explanation for his conduct or which gives any basis for optimism for rehabilitation.

In my view the present sentences cannot be comfortably reconciled with the decisions to which I have referred. Neither does 12 years seem to be an adequate response for conduct as frightening and protracted as this is. In my view the appropriate sentence was 15 years and this Court should now impose such a sentence as the operative one bearing in mind the total criminality of all the offences.

Orders

1. The appeal against conviction is dismissed.

The Attorney-General's appeal is allowed. The sentences at first instance are varied by replacing the sentences on counts 2 and 5 with sentences of 15 years imprisonment. The declaration of serious violent offence should be set aside and replaced by a declaration that the conviction on count 6 is a conviction of a serious violent offence.

HELMAN J: I agree with the orders proposed by Thomas JA and with his reasons.

Footnotes

1. [2001] QCA 241, 22 June 2001. ↩

2. R v Mickelo [1993] 1 Qd R 230. ↩

3. Pfennig v The Queen (1995) 182 CLR 461 at 482. ↩

4. [1991] 2 AC 447. ↩

5. [1998] EWCA 1327, 18 March 1998, Court of Appeal. ↩

6. Pfennig v The Queen (1995) 182 CLR 461 at 482-483. ↩

7. R v O'Keefe [2000] 1 Qd R 564. ↩

8. [2001] HCA 11 para 20 et seq. ↩

9. See 5 above. ↩

10. [1995] 1 Cr App R 559. ↩

11. [1995] 1 Cr App R 547. ↩

12. [1995] 2 Cr App R 491. ↩

13. [1998] VICSC 125, CA No 57 of 1998, 23 July 1998, ↩

14. [1999] VSCA 27, CA No 243 of 1997, 19 March 1999. ↩