R v J [1992] QCA 425

Court of Appeal (Qld)|1992-12-04|Before: McPherson J, Williams J, Derrington J

The outcome of the trial in this matter can be summarised as follows:

(i) The appellant was convicted on count (i) which alleged an offence against s.229B of the Criminal Code, namely that between 16th April 1990 and 1st June 1991 at Beenleigh, he, being an adult, maintained an unlawful relationship of a sexual nature with a child under the age of 16 years. The jury also found him guilty of the circumstance of aggravation that he had carnal knowledge of the girl who was under the age of 16. The offence of having carnal knowledge of a girl under 16, but who is above the age of 12, makes the offender liable to imprisonment for a period of five years. The consequence of that circumstance of aggravation is that the appellant faced a maximum sentence of 14 years upon his conviction for the offence. It should be noted that though the charge as expressed on the indictment contained a further circumstance of aggravation (that the girl was in his care for the time being), that allegation was dropped by the Crown and it was not put to the jury.

(ii) The appellant was convicted of the offence that, on a date unknown between 16th April 1990 and 1st June 1991 at Beenleigh, he unlawfully procured a female child under the age of 16 to commit an indecent act; that related to an incident when the girl masturbated the appellant.

(iii) The appellant was found guilty of the offence that, on a date unknown between 16th April 1990 and 1st June 1991 at Beenleigh, he had unlawful carnal knowledge of a girl under the age of 16. It should be noted that a circumstance of aggravation was alleged in the indictment (the girl was in his care for the time being), but it was dropped by the Crown and not put to the jury.

(iv) The appellant was found not guilty of an offence of supplying cannabis sativa to the girl between 16th April 1990 and 1st June 1991; a circumstance of aggravation was alleged, namely that the appellant was an adult and the girl, a minor. The prosecution case as presented was that this occurred on the occasion the girl and her brother were playing a "Sega Master System game".

(v) The appellant was further acquitted of a charge of unlawfully procuring the girl who was under the age of 16 years to commit an indecent act; the prosecution case as presented was that the alleged incident (the girl masturbating the appellant) occurred immediately after the smoking of the marijuana, the subject matter of count (iv).

(vi) The appellant was also found not guilty of a second count of supplying cannabis to the girl; as with count (iv) this alleged that the incident occurred on a date unknown between 16th April 19910 and 1st June 1991. It was generally referred to in the prosecution case as the second occasion on which marijuana was supplied.

(vii) The prosecution charged that after the second occasion on which marijuana was supplied by the appellant to the girl, an act of carnal knowledge occurred. The appellant was found not guilty of that charge.

(viii) The appellant was found guilty of a further charge of unlawful carnal knowledge of a girl under the age of 16 years. The prosecution case as presented was that this charge related to the incident described by the girl in her evidence as intercourse "doggy-style".

(ix) There was then a further count of unlawful and indecent dealing with a girl under the age of 16 on which the appellant was convicted. This related to the incident where he ejaculated whilst his penis was between her breasts.

The complainant girl's testimony was uncorroborated, and there was no recent complaint. Counsel for the appellant conceded that the summing-up satisfactorily dealt with those issues, and indeed there was no challenge at all to the summing-up of the learned trial judge.

Counsel for the appellant also conceded that this was not a case where one could look at the verdicts and the evidence and say that there was any necessary logical inconsistency between the verdicts of guilty and not guilty; in consequence this was not a case which called for an application of the principle discussed in cases such as R. v. Anthony [1992] Qd.R. 284.

The argument advanced in support of the appeal against conviction was that the same factors which must have affected the complainant's evidence on counts (iv), (v), (vi) and (vii) (namely vagueness, uncertainty and inconsistency with her police statement), must have affected her evidence with respect to the other counts on the indictment and should have led the jury to reject her evidence with respect to those counts also. In those circumstances it was submitted that the verdict of the jury was unsafe and unsatisfactory. Reference was made in the course of argument to the decision of the Court of Criminal Appeal in McElligott C.A. 101 of 1991, judgment delivered 27th August 1991. Particular reference was made to a passage in the judgment of Ryan J. where he said:

"The factor which gives rise for grave concern in this case is that the jury found the appellant not guilty on counts 8, 9 and 10, though if the complainant's evidence was accepted he was clearly guilty on those three counts, and found him guilty on four counts upon her evidence. I can find no rational basis upon which the jury could have concluded that it accepted her evidence beyond a reasonable doubt on certain counts, and did not accept it on others. The fact that it found the accused not guilty on counts 8, 9 and 10 indicates, to my mind, that the jury had some doubt about the quality of her evidence, and if that is so, I consider it unsafe and unsatisfactory to allow convictions to stand which are based exclusively on the uncorroborated testimony of the complainant."

de Jersey J. was "left with anxiety about that distinction", that is between the counts on which they jury convicted and those on which it acquitted. He went on:

"I am not satisfied that the rather fine distinctions which I have set out, in my attempt to distinguish between the jury's treatment of the respective counts, could safely be drawn."

Cooper J. saw the problem as one of seeking "to find a rational basis for apparently inconsistent verdicts".

There is no doubt that it is proper for an appellate court to scrutinise the evidence carefully in cases where a jury has convicted on some counts and acquitted upon others. Such careful scrutiny is clearly called for in cases where there is an absence of corroborating evidence and acceptance of the complainant's evidence is essential to any conviction. But each case must be determined on its own facts; there is no rule of law that a conviction must be regarded as unsafe and unsatisfactory merely because the jury have obviously rejected the complainant's evidence with respect to some counts on the indictment. As with any witness, a jury is entitled to accept part of and reject other parts of the testimony of a complainant. There may well be good reason for a jury not being prepared to accept beyond reasonable doubt the complainant's evidence with respect to one or more counts, yet being prepared to accept it beyond reasonable doubt with respect to other counts.

The complainant girl in this case gave evidence of a series of sexual encounters between herself and the appellant, who was her uncle, over the period of time they were residing in a house at Beenleigh. On a number of occasions she said that such incidents "happened heaps of times", and it is obvious that she had difficulty in detailing the incidents as separate identifiable events occurring in a particular chronological order.

There was certainly confusion in her mind as to what happened after each of the occasions on which she alleged she smoked marijuana with the appellant. Her evidence could be summarised by saying that she was certain that on each occasion some sexual incident occurred though she could not really remember whether it was intercourse, a "hand job", or a "head job". She spoke of being a "bit drowsy" after using the marijuana and in the absence of any other evidence the jury could not have been satisfied that the particular incident as alleged by the Crown occurred. It could not have returned a verdict of guilty on counts (v) and (vii) on the basis that some unidentifiable sexual incident occurred; the way the charges were particularised meant that if they were not satisfied beyond reasonable doubt that the particular charge had been established they had to acquit.

The verdicts on count (iv) and (vi) are also explicable. Under cross-examination the complainant admitted that she had used marijuana on other occasions, sometimes with school friends. Her description of the appellant's bong did not accord with the description of it given by her brother and the appellant himself. That inconsistency was a matter which was in the jury's mind because they asked for a redirection with respect to that evidence. The complainant also claimed privilege from answering some questions put in cross-examination about her use of marijuana. The learned trial judge in his summing-up told the jury they were "entitled to draw an inference in relation to her conduct in not answering them as to her involvement in smoking marijuana".

Because of her general involvement with marijuana, the appellant's alleged supply of it to her could have been regarded by the jury as relatively inconsequential as compared with the sexual conduct. If that approach was adopted the jury could well have found her evidence as to the alleged supply of marijuana less convincing so that there was at least a reasonable doubt as to its accuracy. In other words the jury on this particular part of the case may have considered the quality of her evidence not sufficient to satisfy them beyond reasonable doubt as to the elements of the charge in question. That conclusion could be reached without rejecting her evidence generally.

In all the circumstances, verdicts of not guilty on counts (iv) and (vi) do not necessarily mean that they rejected her evidence entirely; such verdicts could merely reflect the fact that the jury were not satisfied beyond reasonable doubt by her evidence in all the circumstances that the particular charges had been proved.

There were some inconsistencies established, particularly during cross-examination, in the evidence of the complainant with respect to counts (ii), (iii), (viii) and (ix), but in our view the jury could reasonably have concluded that she was essentially telling the truth with respect to such matters and decided to act upon her evidence in the absence of corroboration. In particular her evidence with respect to counts (viii) and (ix) was reasonably detailed (the incidents were somewhat unusual) and she was not shaken with respect to those parts of her evidence under cross-examination.

The jury was clearly entitled to come to the conclusion that there was an ongoing sexual relationship as alleged between the complainant and the appellant, notwithstanding the latter's denials in evidence.

On the evidence one is not compelled to reach the conclusion that there is no rational basis on which the jury could have accepted her evidence on some counts and rejected it on others which would render the verdicts of guilty unsafe and unsatisfactory.

Therefore the appeal against conviction should be dismissed.

We now turn to the application for leave to appeal against sentence. On count (i) the appellant was sentenced to seven years' imprisonment, on counts (iii) and (viii) to four years' imprisonment, and on counts (ii) and (ix) to 18 months' imprisonment; all sentences are to be served concurrently. Submissions on behalf of the appellant with respect to sentence were primarily directed to the head sentence of seven years.

Section 229B was enacted in 1989 with the obvious intention of providing for a heavier penalty where the offender was an adult and the sexual relationship was maintained over a period involving at least three separate acts. The offence is obviously more serious than that of unlawful carnal knowledge simpliciter and that must be reflected in the sentence imposed.

The complainant girl's mother was dead and she and her brother were being brought up by her grandmother who was very ill at all material times. The appellant was the complainant's girl's uncle, who was residing in the house with his mother during this period. The conduct in question occurred over a period of time, and, as the learned trial judge recorded in his sentencing remarks, the appellant showed no remorse for his conduct.

The complainant girl's evidence was to the effect that the appellant began the sexual relationship whilst the parties were living in Sydney when the girl was aged about 12. The charges related to incidents which occurred whilst the parties were living at Beenleigh when the girl was aged about 15.

The appellant has a minor criminal record. Most of it relates to traffic offences, but there are two counts of possessing a prohibited plant for which moderate fines were imposed. He has no previous convictions of a similar nature.

He was aged 33 when he stood for sentence. His counsel informed the court that he had "worked mainly in the entertainment industry since leaving school". He was in custody for two months awaiting trial.

The Court of Criminal Appeal considered a sentence under s.229B of the Code, Krieger C.A. No. 13 of 1991, judgment delivered 28th March 1991, but that case is clearly distinguishable on the facts. There the offences began when the child was seven years old, and the evidence indicated a relationship which included exposure to pornographic material and sodomy. The case was clearly one of the worst of its kind and the court did not interfere with the head sentence of 15 years imprisonment.

The Court of Appeal considered a sentence under the same section in Gillespie C.A. No. 168 of 1992, judgment delivered 15th July 1992. The complainant was the daughter of the offender and the charge was based on some four occasions on which intercourse took place between May and September 1990 when the girl was aged 15. In those circumstances the court regarded it proper to look to sentences imposed for incest as affording a guide to the appropriate sentence in the case under consideration. The judgment emphasised that there was evidence of remorse and the offender had pleaded guilty. The court concluded that the head sentence of seven years had not given sufficient weight to the plea of guilty which had avoided embarrassment and pain to the complainant girl. A sentence of four years and six months imprisonment was imposed.

The learned sentencing judge in this case was referred to a number of sentences imposed by single judges of the District Court with respect to offences under the section. Generally they indicated a range from five to eight years for the head sentence, sometimes with a recommendation for early release on parole. Bearing in mind the circumstance of aggravation established here which makes 14 years the maximum for this offence, we are of the view that a sentence of seven years imprisonment although at the higher end of the range is clearly within it.

The only question then is whether or not there are circumstances which call for a recommendation that the appellant be released on parole earlier than otherwise would be the case. As the learned trial judge pointed out, there was no remorse demonstrated by the appellant and the factors which led the court in Gillespie to reduce the sentence are not present here. In the circumstances we are not persuaded that a case for an early recommendation for parole has been made out.

We would therefore dismiss the appeal against conviction and refuse leave to appeal against sentence.

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