R v John [1998] VSCA 99

13. The present applications for leave to appeal against conviction and for leave to appeal against sentence relate only to the earliest count of indecent assault committed upon L.K., the grounds in each case being simple, namely that the verdict was unsafe and unsatisfactory, and, in the case of the sentence, that it was manifestly excessive.

16. The facts may be briefly summarised and are taken, in part, from the learned judge's sentencing remarks. L.K., then aged 16 years, attended the applicant's clinic as a patient from May to June 1983. She was suffering from back pain and her mother had arranged for her to be treated by him. She attended his clinic on eight occasions, and on the eighth occasion, in the course of a full body massage, the applicant inserted his finger into L.K.'s vagina under the guise of treating the ligaments near the vagina. L.K. stated that the applicant's actions caused her pain and that as a result she was distraught and crying. She told him that he was hurting her, but he did not stop. After this incident, L.K. never returned to the clinic again.

19. It seems that the assault occurred while L.K. was lying on a treatment couch, having been asked to lie there, covered only by a towel, or perhaps, on one version, wearing underpants but covered by a towel. This method of treatment, or the position which the patient was obliged to adopt, seems to have been the normal method adopted by the applicant for the kind of massage then being administered. Moreover, on the day in question the applicant had explained, or attempted to explain, to L.K. that her back pains were caused by ligaments near to the vagina. Using that pretext, he had put pressure on the surrounding area, pushing the skin hard on to the bone, causing her pain. At the same time the applicant's fingers had been pushed in and out of the vagina, thus causing the pain and shock. The applicant had refused immediately to stop. After the massage ceased a further appointment was made but L.K. did not keep it and had no further treatment from the applicant. For various reasons - primarily embarrassment, as one would understand the evidence - she made no complaint either to her mother or to her boyfriend until well over ten years later, when the other charges received some publicity locally.

22. Although there was much cross-examination of L.K. and evidence given by the applicant in general terms as to her treatment, based, as far as he was concerned, on material said to have been recorded on a small record card, little further detail of the events was revealed. L.K. frankly said that she did not recall most of the surrounding circumstances about which questions were put to her.

25. The issue raised in this Court as to the applicant's conviction was whether it was unsafe and unsatisfactory. No argument took place as to the test to be applied, so frequently analysed in recent years. I should immediately say that I am not persuaded by the argument put before this Court that this was a case where the jury ought to have entertained a reasonable doubt as to the applicant's guilt, or that the verdict upon this count was in any other way unsafe or unsatisfactory. In substance, it was said by counsel for the applicant that the evidence of the complainant was so uncertain and inconsistent that it ought not to have been believed. Counsel put a number of arguments, which may be fairly summarised in this way, as he stated them to the Court: (1) that the events had occurred a very long time ago; (2) that no complaints had been made, either to L.K.'s mother or to her boyfriend; (3) that the reasons given for her failure to complain earlier were unrealistic and unsatisfactory; (4) that there was a lack of corroboration, particularly of the facts that she had suffered pain, that she had been distressed and that she had been crying; (5) that, as to the events on 16 June 1983, her lack of recollection as to the surrounding events was extraordinary, as to the nature of the massage and the positions on the couch which she had to adopt; as to what L.K. and the applicant had discussed, both as to her treatment and as to various other matters; as to what she was wearing when lying on the couch; and as to how she came and went from the clinic that day. Further it was said that it was surprising that she could remember the pain at her last appointment but that she could not remember whether there was any improvement in her condition, or why it was, or had to be, her last appointment.

28. Each of these matters was carefully analysed by counsel for the applicant, but in the end there seems to me no reason why the jury could not have properly taken account of them and yet in the end why it could not have fairly considered that she was nevertheless telling the truth. Those matters which the complainant, L.K., had forgotten were, in my opinion, just those matters which could well have slipped her memory over the succeeding 15 years. The critical matters - the assault, the applicant's "excuse", the pain, her immediate reaction - were, as one might well have expected, still clear in her mind, as would have been, one might fairly assume, any invasion of her body of the kind alleged. What they discussed, who had taken her to and from the clinic, what precisely she was wearing at what time, were not necessarily matters likely to stay in her mind. Of course it may have been significant that she forgot some of those matters, but that, and the effect of her failure to recollect them, was for the jury to determine. She was not significantly shaken in cross-examination, nor were her lapses of memory shown to be inexcusable, at least not so unreasonable that a jury of twelve people could not fairly have concluded that she had truthfully told the essence of an indecent attack upon her that day by the applicant.

31. Again, as to the failure to make complaints at the time, doubtless those matters were raised before the jury in the course of address in the same way that they were in this Court. But, as frequently occurs, complaints are not made at the time, perhaps, one might otherwise have expected them to be made, and there are frequently circumstances, such as embarrassment and the relationship between the complainant and the person to whom one might have otherwise expected complaint to be made, which would fairly be taken to inhibit the making of not only an immediate complaint but also of any later complaint: cf. s.61 of the Crimes Act 1958. It was suggested that L.K. did not get on well with her mother at the time. That in itself might have inhibited her. As to whether she would complain to her boyfriend, again that may not have been as obvious, as counsel sought to put it here and down below, as one would have thought; and, of course, the longer a complaint is put off the less excusable the failure and delay might appear to be to a person to whom the complaint might have been made, and therefore the more difficult it may have become to make complaint. Although delay in making complaint was an important factor to be weighed by the jury, it is not such as to persuade me that it led to a verdict which ought to be set aside.

34. Again, the absence of corroboration of the kind described in argument was not such as to lead to the conclusion that this verdict was unsafe or unsatisfactory. As to the matters to which counsel referred us, the learned judge gave the conventional warning and no doubt the jury took that into account. This was not a case where the recollection of the complainant was so defective that it necessarily showed the jury failing to act in accordance with its oath in bringing in a verdict of guilty.

37. Finally, I should say that none of these things must necessarily of themselves be shown separately to establish an unsafe or unsatisfactory verdict. Of course, in reaching a conclusion as to this matter, it is a combination of events which must be looked at, not each individually. But I am not persuaded, looking at the whole of the matters, as they have been put to this Court in a carefully worked out and presented argument, that they are nevertheless of a kind which would lead one to the conclusion that the jury was acting unreasonably in failing to bring in a verdict of not guilty.

40. As I have said, whatever test one applies, I am not persuaded that this verdict was unsafe or unsatisfactory.

43. One comes then to the application for leave to appeal against sentence. Here, the matters put in argument and recounted in large part in the sentencing remarks of the learned judge show that the applicant was a person who was very well respected in the local community, in the sense that he had made significant contributions by acting in many community positions and working in various service organisations over many years. They are matters to be taken into account, but there are other factors which I think perhaps are of more significance. He is now 68 years old, being 67 at the time of sentence. He is clearly in poor health - in such poor health that it is obvious that he is ill-equipped to undergo a long gaol sentence: by that I refer to a sentence which would extend beyond the four or five months that he has already served. The applicant has lost everything, in the sense that he has lost his home, the benefits of his superannuation and virtually all his life's savings, so that he and his wife are now forced to live in a caravan; and, more specifically, since it flows so directly from the accusations which have been made out in three specific cases, but no doubt particularly in this case, he has lost his reputation, and, because of the events occurring in the course of carrying on his vocation, he has had to give up his occupation as masseur, even if he were sufficiently fit to carry it on far into the future.

46. As I say, these matters were each referred to by the learned judge and, in the ordinary course of events, I might have thought that they were sufficiently described for one to say that there was no error demonstrated. However, one matter particularly has arisen which concerns me. It is that, in listing a number of matters numerically and then later in expressing her conclusions, the learned judge omitted any reference to the applicant's health. It is not that a description of the applicant's health did not appear in the sentencing reasons: that appeared at an early stage when describing the applicant, his profession and his general history over the years. What is of more concern is that in the course of the plea the judge had observed to counsel that: "In order for [the applicant's] health to be a factor which mitigated the sentence imposed, it would have to be that the incarceration would exacerbate his condition, would it not?", to which counsel said "Yes", and further he agreed that he could not put it as high as that. It seems that counsel thereafter said relatively little about the question of his health and the effect of health on the serving of his sentence.

49. It is not necessary here to go into the circumstances in which observations made in the course of plea may be relied upon. Counsel was distracted from making any further submissions on the question in this way. More importantly, there seems nothing in the sentencing remarks which reflects the fact that the applicant will, because of his health (which includes diabetes, hypertension, high blood pressure and ischaemic heart disease, as well as florid agoraphobia and some degree of mental instability), suffer considerably more than he otherwise would in serving a gaol sentence, and no doubt that is already the case because he is serving that sentence at the present time. That factor seems to have been overlooked in the form of the sentence imposed, in particular by requiring the applicant to serve nine months of the two-year sentence before suspending it.

52. In my opinion, the sentence was excessive, at least for those reasons. The factor of the illness, the fact that he has waited a considerable time before this charge has been heard, and that he has suffered such extensive loss both of his assets and of his reputation, all means, not so much that, in a sense, the circumstances have not largely justified the head penalty, but that he has suffered such that requiring nine months to be served before suspension might be seen to be crushing in the light of the circumstances in which he then found himself. I am, therefore, of opinion that, although this was a very serious intrusion of a kind which has to be entirely condemned, inflicted on a young girl at an age where such an attack would cause her the distress which she says it did, and although that was caused in circumstances where the applicant had a very special duty to his patients not to take advantage of them, nevertheless I think that in all the circumstances a much shorter period should have been directed as having to be served before the rest of the term was suspended

55. Although the term of two years was an appropriate term for the offence as committed, nevertheless I consider that the period to be served before suspension should be reduced, so that the applicant should not be required to serve any further period in gaol than he has so far served. I would consequently vary the sentence of the learned judge, in particular the direction that 15 months of the term be suspended for a period of two years, by substituting a direction that 19 months of that term of two years be suspended for a period of two years.

58. I would therefore grant the application and allow the appeal on the question of sentence accordingly.

62. I agree that the application for leave to appeal against conviction should be dismissed.

65. I have had some difficulty in satisfying myself that the learned sentencing judge gave appropriate weight to several of the matters personal to the applicant which went in mitigation of the sentence for the offence against L.K. with which we are concerned. In particular, I refer to the applicant's age at the time of sentence (within six weeks of 68 years), his state of health and his general reputation and standing in and his contribution to his community. I shall not stay to elaborate these matters. I note, however, that the learned judge made no reference in her sentencing remarks to the applicant's state of health (which, it must be said, is parlous) as a mitigating factor. That of itself might not signify. One might ordinarily assume that the matter of ill health having been raised by counsel for the applicant upon the hearing of the plea, her Honour did have regard to it as appropriate. As it is, however, her Honour is recorded as having put to counsel during the course of the plea the passage to which Ormiston, J.A. has referred. Counsel seems to have accepted that statement and to have been deterred from pursuing the issue. What her Honour said was, as it seems to me, incorrect, or at least seriously incomplete. In order to take into account as a sentencing factor the ill health of the applicant it was not necessary that it should be shown or apprehended that incarceration would exacerbate his condition. In the circumstances I find it difficult to exclude the real possibility that the learned judge may have been deflected from considering the hardship which a custodial sentence would presumably cause a 68-year-old man in chronically poor health who was undergoing such a sentence for the first time, irrespective of whether the incarceration actually exacerbated his condition.

68. Next I would observe that, among the considerations personal to the applicant which weigh with me in an assessment of the sentence are his age and his previous good character. It does not seem to me that the learned sentencing judge accorded the weight to these matters which they deserved. The applicant spent the first 68 years of his life without tangling with the law. That kind of record, it has often been said, builds up for a man a solid kind of bonus on which he is entitled to draw in case of need. The applicant had need to draw upon that when standing for his first sentence before the learned judge. These observations that I now make suggest, if they do not demonstrate, that there was specific sentencing error requiring this Court to set aside the sentence. In any event, and whether that view is in the end warranted, I consider that in all the circumstances the sentence was manifestly excessive.

71. I would subscribe to the resolution of the application for leave to appeal against sentence which was proposed by Ormiston, J.A.

75. I am quite satisfied that each of the individual matters raised by Mr Tehan in his attack on the applicant's conviction was a matter for the jury, which heard both the victim and the accused give evidence, to consider and decide. I would dismiss the application for leave to appeal against conviction for the reasons given by Ormiston, J.A.

78. I agree with the other members of the Court, for the reasons given by them, that the application in relation to sentence should be granted and the applicant re-sentenced in the manner proposed.

Application for leave to appeal against conviction dismissed.

86. Application for leave to appeal against sentence granted. Direct that the appeal be treated as instituted and heard instanter and allowed. The sentence on count 1, presentment numbered 199601236 and J01832932, set aside in so far as it was directed that 15 months thereof be suspended for the period of two years. In lieu direct that 19 months of the said sentence be suspended for the period of two years.

89. The necessity to comply or to comply again with sub-s.(4) of s.27 of the Sentencing Act 1991 might perhaps be raised. That requires that a court proposing to make an order suspending a sentence of imprisonment should, before making the order, explain or cause to be explained to the offender in language likely to be readily understood by him the purpose and effect of the proposed order and the consequences that may follow if he commits another offence punishable by imprisonment during the operational period of the sentence. Because the applicant is not present this afternoon it is not possible to explain to him in person what sub-s.(4) of s.27 requires. In the circumstances, however, the Court notes that the learned sentencing judge below would appear to have complied exactly with that provision and, so far as is recorded, the applicant understood what was explained to him. In those circumstances the provision in question might be regarded at this stage, having regard to the order the Court has made, to be of a directory nature. If that be not right, however, we shall direct further that a copy of these reasons be furnished to the applicant. I should add that if during the two years in question he commits another offence punishable by imprisonment and does so whether in or outside Victoria during that period, he will be liable to be recalled and dealt with in respect of the months outstanding under the suspended sentence. The Court would, I think, be prepared to assume, having regard to what was said to him below, that the applicant would understand the position.

92. Declare that of the sentence 160 days is to be taken to have been served and direct that the making of the declaration be noted in the records of the Court.

95. The intention of this order is, and I say it for the benefit of those who need it to be said, that he is to be immediately released.