R v GO; ex parte A-G

Callaghan Lawyers for the appellant in CA No 201 of 2004 and the respondent in CA No 244 of 2004

Director of Public Prosecutions (Queensland) for the respondent in CA No 201 of 2004 and the appellant in CA No 244 of 2004

[1] WILLIAMS JA: For the reasons prepared by Jones J, with which I agree, both the appeal against conviction and the Attorney-General's appeal against sentence should be dismissed.

[2] JERRARD JA: I have read the reasons for judgment written by Jones J in these appeals, and respectfully agree with those reasons and the orders proposed.

[3] JONES J: The appellant was convicted at trial of two counts of indecent dealing of a child under 16 years when the child was under 12 years of age. The offences are both alleged to have occurred on the one evening during the Easter holidays in 2002. The appellant was sentenced to six months imprisonment to be served pursuant to an Intensive Correction Order.

[4] The appellant appeals against his conviction on he grounds that the verdicts were unreasonable and not supported by the evidence. The Attorney-General also appeals against the sentence, arguing that it is manifestly inadequate.

[5] The complainant was one of twin boys and the appellant was their uncle. At the time of the events, the subject of the two charges, the appellant was 22 years old and the complainant was eight years and nine months old. The appellant was a single man residing in his parents' house. The appellant had had periodic contact with the boys on the occasions of family visits.

[6] During the Easter holidays 2002 the complainant and his twin brother stayed overnight at their grandparents' house. Because a bed in one of the bedrooms was being painted, the complainant slept in the appellant's bed one evening.

[7] As to the first count, the prosecution alleges that the appellant attempted to touch the complainant's penis a number of times which the complainant repelled by pushing the appellant's hand away. Eventually, the appellant succeeded by touching the complainant's penis "on the inside of his boxer shorts".[1] As to the second count, the prosecution alleges that after the initial touching the complainant went to sleep. He was awakened to feel the appellant's penis against his anus and the appellant then stuck his penis into his bottom. By reason of the charge being indecent dealing there was no issue about penetration.

[8] The complainant first complained to his twin brother some two to three days after the incident. The brother in the course of an argument between the boys told the complainant's mother a short time after that. The matter was referred to the police and the complainant's statement was video-taped and ultimately tendered on trial pursuant to s 93A of the Evidence Act 1977.

[9] The first incident was said to have occurred whilst the complainant and the appellant were on the bed watching movies on the television. The complainant said that whilst watching the movie, the appellant "was trying to touch it [his penis] and that's when [he] was grabbing [the appellant's] hand".[2] The expression used by the complainant during interview when asked if anyone had ever touched his penis was "my uncle tried to".[3] The complainant said that, he had grabbed the appellant's hand to prevent that happening and when the appellant tried with his other hand he grabbed the appellant's second hand.[4] In the course of explaining to police officers how he grabbed the appellant's hands, the complainant was asked -

"So, what did he actually touch? What did he touch? - This.

Okay. And what's that called? - Willy. [his term for penis]

Okay. Did he touch you on the outside or the inside of your boxer shorts? - The out - I think inside."[5]

[10] Apart from that comment during the interview, which effectively became the complainant's evidence-in-chief, he said on six occasions that the appellant "tried to touch" his penis. When asked what he had told his mother about the incident he again only used the words "trying to touch". During the cross-examination the complainant agreed that he did not tell his brother that he had been raped and that all that he told him was that his uncle was trying to touch his penis. The brother's account of what the complainant had said was that "[GO] raped me".[6] From further questioning it was clear that the complainant understood the meaning of that term but he was obviously referring to the second count.

[11] The complainant's mother said that she was told "[GO] keeps touching [me] on the doodle"[7] and the complainant demonstrated the action by fondling his penis inside his pants. As to the second count the complainant said words to the effect that the appellant tried to put his penis into his bottom but he was holding his bottom cheeks together so he could not.[8]

[12] The appellant did not give evidence on trial but relied on the terms of his interview with investigating police officers which took place soon after the complainant's interview. In questioning the appellant the investigating police officers related the substance of the complaint in considerable detail. The appellant denied the conduct, saying that he was only engaged in tickling the complainant but persisted in it to the point where the complainant became angry. In that record of interview the appellant admitted a touching of the complainant's penis with his elbow on the outside of the complainant's boxer shorts. The appellant said at that time, the complainant had an erection. The appellant claimed that the complainant became upset instantly that he said to the complainant that he didn't mean to do that and he desisted immediately. He maintained his denial that he had touched the complainant in a deliberate manner. The appellant was closely questioned by investigating police officers to determine whether any touching was accidental or deliberate. In the course of this the following question was asked -

"But you were just saying every five to 10 minutes you were tickling him and therefore your arm was brushing across his -----? - I knew my arm was on his boxer shorts, and I didn't think it was anywhere near his dick, and I didn't think he'd get a hardon."[9]

[13] In his evidence in chief the complainant said that his penis was not hard on this occasion nor on any other occasion that he had played with the appellant.[10] In cross-examination the complainant was questioned about his demonstration during the police interview of the way in which he held the appellant's hand to stop the touching. But it was never put to the complainant that any touching occurred as a result of the activity of tickling.

[14] The appellant argues that the complainant's evidence does not reliably establish an actual touching. On some 11 occasions during the interview the expression used by the complainant was, "tried to touch". It was only when the question asked assumed the touching, that the complainant agreed that it was his penis that was touched, and that the touching occurred inside his boxer shorts.

[15] The appellant also relies upon inconsistencies in the terms in which the preliminary complaints were made by the complainant to his twin brother and later to his mother.

[16] The prosecution evidence as to the deliberate touching was left on the basis of the complainant's response to the question which assumed the touching which response confirmed a touching of the complainant's penis inside his shorts. This was consistent with the complainant's preliminary complaint to his mother. Thus there was evidence of a deliberate touching which the jury had to weigh against the background of the complainant's evidence, of a number of attempts of touching which he had resisted. Whether these attempts took place in circumstances of some tickling or playing was not explored during cross-examination. However the jury could also have regard to the appellant's description of his reaction to the touching - "Listen, mate, this is not what I want to do"[11] which on one view might seem unusual for an accidental touching.

[17] The jury was properly instructed to determine whether the expressions of trying to touch were in fact inconsistencies and if so, whether the effect of such inconsistencies was to "undermine the credibility of the complainant's evidence".[12] The issue of whether the touching was deliberate as opposed to being accidental was clearly left to the jury.[13]

[18] There is always a prospect that juries will, as a natural tendency, make allowances in favour of young children by excusing inconsistencies in their evidence. R v G; ex parte Attorney-General.[14] The frequent references by the complainant to attempts at touching might well have been an accurate account but in any event those references are not inconsistent with an act of actual touching which follows. The appellant acknowledged that there was a touching. What was left for the jury was to make a determination whether the touching was indecent.

[19] There was nothing about the environment in which the touching occurred to make the commission of the offence unlikely. The complainant's credibility or reliability had to be assessed against the terms of the preliminary complaints and against the terms of the appellant's explanation of touching given to the police but neither put to the complainant nor sworn to in court.

[20] The issue of whether the jury's verdict was unreasonable raises the question whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. M v The Queen; Jones v The Queen.[15] Having considered the whole of the evidence on the issue of count 1, I am satisfied that there was evidence upon which the jury could have acted and I am not persuaded that the verdict which the jury came to was unreasonable or unsafe.

[21] As to the second count, the evidence was in short compass. The complainant said initially the appellant had "done rude stuff to me".[16] This was elaborated upon as being that the appellant "stuck his rude part in my bum".[17] The complainant said he told his mother that at the same time the appellant had a pillow over the back of the complainant's head pressing down hard so he could not scream.[18] However he did not give direct evidence of any such action. On the next morning the appellant said to the complainant not to tell anyone about "our secret" and he offered to buy him a dog as a present.

[22] The appellant's response to these allegations were simply to deny that any touching of a sexual nature occurred. He denied any conversation about keeping a secret although he admitted that there was a discussion about buying the complainant a dog as an Easter present.

[23] Again the appellant relies upon inconsistency in the complainant's preliminary complaint firstly to his brother when he used the term "raped" and later the terms "hop on him" were used and secondly to his mother, expressed in terms that the appellant tried to put his penis into his bottom.[19] There was also some inconsistency, or perhaps confusion, as to when these actions occurred relative to the events of the first count. The complainant's brother gave two versions as to his whereabouts when he spoke to the complainant about these matters, one they were playing a game in their bedroom[20] and the other when walking to the shops.[21] Whilst this might affect the brother's reliability the significance is quite minor relative to the consistency with which the complainant gave the account to his mother. Other matters relied upon by the appellant included the fact that the house in which these events occurred was small and the complainant's grandparents were in close proximity to the bedroom where they were said to have occurred. As I have already indicated this fact does not make the conduct unlikely to have occurred.

[24] There was no objective support for the complainant's allegations. It was a question for the jury whether these different statements amounted to inconsistencies which would impact on credibility or simply the use of different expressions on different occasions by a nine year old boy to explain events which understandably would give rise to some difficulty.

[25] Whilst these matters of inconsistency are properly raised as discussion points, the issue for the jury was a clear - whether they were satisfied beyond reasonable doubt on the complainant's evidence and having regard to all the evidence that the appellant touched the complainant in the manner alleged. No complaint was raised about the instructions given to the jury by the learned primary judge either at trial or on appeal. I am not persuaded that either verdict was unreasonable.

[26] I would dismiss the appeals against the convictions.

[27] The Attorney-General's appeal against sentence proceeds from the general expectation that, other than in exceptional circumstances, those who indecently assault or otherwise deal with a child should be sent to gaol. R v Pham.[22] The argument put forward on behalf of the Attorney-General asserts that the appellant's personal antecedents and the other features favourable to him were not sufficient to bring this case within the exception. Those features were identified in the learned primary judge's sentencing remarks as -

"However, your personal circumstances show that since 1998, you have suffered psychiatrically; that is, your mental health has been affected to an extent where you have had admissions to hospital, and even though the report indicates that your condition is stable and able to be stabilised with medication, my observation of you as a person over the duration of the trial, and again here today, is that I do not believe you could withstand the gaol system; that is, I think you would be preyed upon."

[28] It was argued that too little regard was paid by the learned sentencing judge to the impact on the child and family; the fact that the appellant was in a position of trust; and the fact he had attempted to buy the child's silence. By way of comparison reference was made to the case of R v M; ex parte Attorney-General[23] where a 28 year old offender had been convicted of two counts of indecent treatment of a child under 16 years coupled with the circumstances of aggravation that the child was under 12 years. The offences, which occurred on consecutive nights, included an act of fellatio on the first occasion and handling his penis on the other. The offender himself had been seriously sexually abused during his childhood and teenage years leaving him with serious psychological damage. He had no personal or emotional support and he turned to the use of alcohol and illicit drugs. His treatment was complicated by these factors. The psychologist's report indicated a likelihood of re-offending. These circumstances as well as the need for general and personal deterrence resulted in the Court of Appeal determining that his prospects of successful treatment would at least be as good under a sentence of detention. The personal aspects of the offender and his need for rehabilitation was a significant part in determining the appropriate penalty.

[29] Reference was made to R v B[24] where the offender was convicted of two counts of indecent dealing with his stepdaughter who was at the time under 12 years of age. The offender's conduct included touching the complainant on her vagina, on two separate occasions and included an attempt to bribe her to let him engage in other sexual conduct. The offender was acquitted on two counts of conduct of a like kind. For the two convictions the offender was sentenced to 18 months imprisonment which, on appeal, was reduced to 12 months imprisonment. The reasons for judgment commented upon the impact the offences had on the complainant but there was no specific reference to rehabilitation for the offender.

[30] Finally, on behalf of the Attorney-General the Court was referred to R v O[25] where the offender for a single offence of indecent dealing with a child under 16 years of age was sentenced to 18 months imprisonment with eligibility for parole after serving six months. The complainant was a 13 year old stepdaughter of the offender who was 31 years of age at the time. He engaged in simulated sexual intercourse with the girl on one occasion. The penalty was imposed after early indication of a plea of guilty which coupled with other favourable aspects caused counsel representing the offender to argue for a wholly suspended sentence. The Court of Appeal dismissed the application but noted in passing that the sentence was a high one for that level of offending.

[31] There is always some difficulty in making comparisons between cases involving this type of offending. As to the question of the impact of the offending, the learned primary judge had before him the statement from the complainant's mother but he also had the advantage of seeing and hearing the complainant give evidence which caused him to comment that the complainant "seemed to be reasonably well adjusted".[26] The learned primary judge was aware of the respondent's mental health and the fact that he had been under treatment for it since 1998 and that his condition was now stable. It was appropriate for his Honour to have regard to the effect that a term of actual imprisonment would have on the treatment regime. His Honour also came to the view that the respondent would be vulnerable in the gaol environment. The respondent is supported by his family and the sentence was tailored to allow the continuation of his treatment.

[32] Whilst the sentence is at the low end of a scale having regard to the fact that it followed a trial, there were sufficient counter-balancing features in this case, particularly going to the importance of continuation of his treatment and rehabilitation, that leads me to conclude that the sentence imposed was not outside the discretionary range. I would dismiss the appeal against sentence.

[14] [2001] QCA 158

[15] [1994] HCA 63; (1994) 181 CLR 487; (1997) 191 CLR 439

[23] [1999] QCA 442; [2000] 2 Qd R 543

[24] [2003] QCA 105

[25] [2001] QCA 40