R v Macfie [2000] VSCA 173

Court of Appeal (Vic)|2000-10-03|Before: WINNEKE, P., BROOKING and CHERNOV, JJ.A.

The applicant in fact took the complainant out of Victoria and ultimately to Darwin. During the trip, sexual activity took place between them almost on a daily basis. On 24 December 1997 the applicant and the complainant were apprehended by the Darwin police and the complainant was handed over to welfare authorities. In her statement she told the police that the applicant was her father, although during the trial she agreed that what she had said was untrue. The applicant was also taken into custody, interviewed, but was released. On 10 March 1998 he was arrested and a second record of interview was conducted. He was charged later that day with offences relating to the complainant. In both interviews the applicant claimed that he believed that he was the complainant's natural father and denied that he had sexual intercourse with her. In particular, he denied that he had sexual intercourse in the cabin of his truck and said that it was too small for such activity. He refused to provide a blood sample for the purposes of DNA to determine if he was the complainant's natural father but on 25 March 1998 a sample was taken from him pursuant to a court order and a like sample was taken from the complainant on 30 March 1998. The analysis revealed that the applicant was not the complainant's biological father.

In view of some of the submissions made on behalf of the applicant, it is desirable to set out briefly the circumstances in which the ultimate charges were formulated. On 1 October 1998 the applicant was committed to stand trial in the County Court at Melbourne on 14 charges of sexual penetration of a child between 10 and 16 years contrary to s.46(1) of the . He pleaded not guilty and a trial date of 14 December 1998 was set. It was not until the current presentment, which was filed over on 29 March 1999, that a count alleging a breach of of the first appeared in the form of count 1. Each of counts 2 to 8 alleged that the applicant took part in a discrete act of sexual penetration with a child aged between 10 and 16, contrary to s.46, (counts to and , vaginal penetration and counts 6 and 7, anal penetration) and count 9 alleged an indecent act with a child under 16, contrary to The offences alleged in counts 2 to 9 were said to have occurred during the same period as that alleged in respect of count 1. The Crown conducted its case on the basis that counts 2 to 5 and 8 ("the five counts") were particulars of the allegations in count 1. Count 10 was relevantly unrelated to the earlier counts. As has been mentioned, it alleged the abduction of the complainant by the applicant on 10 December 1997, contrary to of the . For reasons which are not presently relevant, a second jury was empanelled on 14 May 1999. The applicant was arraigned and pleaded not guilty in relation to all counts. On 26 May 1999 the jury returned verdicts of guilty on counts 1 and 10.

We now turn to look briefly at the essential requirements of s.47A. So far as is relevant, it reads:

"(1) A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married and who is under his or her care, supervision or authority is guilty of an indictable offence. (2) To prove an offence under sub-s.(1) it is necessary to prove - (a) that the accused during a particular period (while the child was under the age of 16 and under his or her care, supervision or authority) did an act in relation to the child which would constitute an offence under a particular provision of this Subdivision or Subdivision (8A) or (8B); and (b) that such an act also took place between the accused and the child on at least two other occasions during that period. (3) It is not necessary to prove the dates or the exact circumstances of the alleged occasions."

The relevant operation of this provision will be examined later in the context of analysing one of the grounds upon which the applicant relies.

We turn to consider first the arguments relating to the grounds upon which leave to appeal against conviction was sought and we do so in the order in which they were argued by Mr. Priest and Mr. Croucher who appeared for the applicant. We will deal later with the application for leave to appeal against sentence.

Grounds 1(a) and 11 - care, supervision or authority

Under cover of these grounds, it was contended, in essence, that his Honour erred in directing the jury as to the meaning of those words and that it was not open to them to find that the complainant was under the applicant's care, supervision or authority. We find no fault, however, in his Honour's charge to the jury so far as the words in question are concerned. His Honour's charge fully explained to them that, for the purposes of s.47A, they had to be satisfied to the requisite standard that, during the relevant period of "sexual relationship", the complainant was under the applicant's care, supervision or authority. For the reasons we give later, we are of the view that his Honour was correct in pointing out that the relevant care, supervision or authority could be vested in more than one person or authority at the same time or could change depending on circumstances.

In this case, as his Honour explained to the jury, the complainant was lawfully under the care, supervision or authority of the Secretary who had delegated such care to those in charge of Rivendell where the complainant was accommodated as a ward of the State. However it was a question for the jury, as his Honour told them, whether the applicant had assumed such care, supervision or authority by encouraging the complainant to leave her accommodation and accepting her into his own domain as his "niece" or "daughter" as he variously described her, and thereafter resisting efforts of the authorities to reclaim her by contending that the complainant had been poorly looked after by the State and would be better treated in his care.

Mr. Priest argued that his Honour erred in telling the jury that the words in question were to be read disjunctively. He contended that they create a genus or class and that, in any event, the vice in such a direction lay in the risk that, since each word conveyed a different meaning, some of the jury might have convicted the applicant because they concluded that the complainant was under his "care" but not "authority", whereas others may have come to the opposite conclusion. Thus, it was said, different members of the jury may have applied different standards to convict the applicant. By way of illustration of the vice, Mr. Priest pointed to the evidence that the complainant had refused to have sex with the applicant on at least one occasion and said that this showed that he had no authority over her. Thus, said Mr. Priest, if any of the jury convicted the applicant on the basis that he had authority over the complainant, that would amount to an appealable error.

In R. v. Howes[1] Brooking, J.A. and the President (with whom Chernov, J.A. agreed) analysed the meaning and operation of the words "care, supervision or authority" in s.48 of the Act. What was there said by their Honours applies equally to the words as they appear in s.47A. In particular, for reasons given by Brooking, J.A.[2], we cannot accept Mr. Priest's contention that the words create a genus or that they should be read disjunctively. Moreover, as his Honour made plain[3], s.48 creates a single offence. His Honour pointed out that, although in many cases the child will be under the care, supervision and authority of the offender, in many others it will be doubtful whether one of the elements is present in the relationship. Further, as Brooking, J.A. explained[4], the jury need not be told that they must be unanimous in finding that at least one of the three elements was present in the existing relationship.

It was contended before the learned trial judge, and again before this Court, that the Parliament - in introducing into the criminal law of this State the concept of "care, supervision or authority" - did not intend to extend it to the type of relationship which the evidence showed existed in this case. In support of this contention, Mr. Priest relied on what was said about the intended operation of the words in question during, inter alia, the Parliamentary Debates when ss.48 to 50 were introduced in 1980. Mr. Priest referred in particular to the Attorney-General's Second Reading Speech in the Legislative Council on 18 November 1980[5] where he said, inter alia, that "the Government is of the view that all young persons in this age category, whether boys or girls, should be protected from exploitation by persons in special positions of responsibility, that is, teachers, scout leaders, youth leaders, babysitters and the like ..."(Emphasis provided.) Mr. Priest relied particularly on the words that are emphasised. Counsel also referred to the Parliamentary Debates in the Legislative Assembly of 26 March 1991 which are recorded in Hansard[6] where it was said that it was the intention of those introducing s.47A to "limit the provisions' effects" and that family members, members of a scout group, teachers or "a person in authority along those lines" were specifically referred to in the context of the words in question. Reference was also made in more general terms to the debates touching upon the 1991 and 1997 amendments which, it was claimed, supported the interpretation contended for by the applicant.

Although Mr. Priest conceded that the Parliament had not intended to "close the class" at those positions specified, he submitted that one could glean from the words an intention to exclude the sort of relationship which existed between the applicant and the complainant. We cannot agree. It was well open to the jury to find that the relationship which the applicant assumed in relation to this complainant was one of "in loco parentis" and it can scarcely be contended that the proper interpretation of the words "under the care, supervision or authority" excludes such a relationship from their ambit.

Mr. Priest also submitted that the section is confined in its operation to cases where the alleged offenders have a legal or lawful right to have the child under their care, supervision or authority (presumably, such as parents or guardians) or where they have permission of such persons to have the child under their control such as teachers, babysitters, scout masters "and the like". The applicant, however, it was said, had no such rights no matter what his influence over the complainant may have been and, therefore, his conduct was not caught by s.47A. In support of that submission, Mr Priest relied on the Parliamentary Debates to which reference has been made. But as he frankly acknowledged by reference to what was said in the High Court in R. v. Bolton; Ex parte Bean[7] and in Minister for Immigration v. Tang Gia Xin[8], the words of the Minister during the Second Reading Speech are not a substitute for the words of the section. It is to the words of the section that one should first look in an endeavour to discover the intention of the Parliament; extrinsic materials are not a substitute for legislation[9]. The plain words of the section do not support Mr Priest's submission. As Brooking, J.A. said in Howes[10]:

"One thing is clear as regards the scope of the section: it is not confined to cases where legal rights or powers and legal duties found or even form part of the relationship. ... The section does not require that the `care' or `supervision' or `authority' be based on a legal right or power. I have no doubt that a patient being treated by a general practitioner or a psychiatrist, for example, may be `under the care' of the doctor notwithstanding that the relationship is entirely voluntary and I have no doubt that a person may be under the care or authority (or both) of a priest. Legal authority may create or help to create a relationship of care, supervision or authority, but it is certainly not essential".

Thus a person who has assumed de facto control, supervision or authority over a child is caught by the section notwithstanding that responsibility for the child was not delegated to him or her by someone who had a lawful charge of the child and who continued in that position. As the President said in Howes[11], "[t]he offence created by the section is also aimed at those who, by virtue of an established and on-going relationship, are in a position to exploit or take advantage of the influence which grew out of that relationship."

As to Mr. Priest's submission that, on the evidence, the jury, properly instructed, could not find that the complainant was under the applicant's care, supervision or authority, there was, we think, no view of the evidence reasonably open, other than that the applicant treated this 13 year-old girl as his "charge" and that his relationship with her was founded upon care, supervision or authority. For completeness, we turn to Mr. Priest's submission that, since on at least one occasion the complainant resisted the applicant's sexual overtures, he did not possess "authority" over her. In our view, the existence of the relationship of care, supervision or authority over the period referred to in s.47A cannot depend upon occasional episodes of petulance on the part of the child; rather it must depend upon whether, looking at the evidence as a whole, it demonstrates that the relationship is one where, as a matter of fact, the complainant was under the care, supervision or authority of the applicant during the period alleged.

Grounds 3 and 4 - false denials and corroboration

It was submitted under cover of these grounds that his Honour left to the jury the applicant's false denials of his sexual activity with the complainant as being capable of corroborating her evidence and as demonstrating consciousness of guilt on the applicant's part. Therefore, it was said, an "Edwards direction"[12] should have been given to the jury and his Honour's failure to do that resulted in a substantial miscarriage of justice. Alternatively, it was submitted by Mr. Priest, if the applicant's false denials were not left to the jury as corroboration or as going to consciousness of guilt, it was necessary for a direction to have been given to them as to the use they could make of the false denials (otherwise the jury might use them as proving guilt, rather than merely going to credit). Failure to give such a direction, it was claimed, resulted in a miscarriage of justice.

In the course of his charge, his Honour directed the jury that, in the circumstances of the case, where the complainant was asserting, and the accused was denying, that the month of their relationship was, in essence, "one long sexual spree", they would need to scrutinize the evidence of the complainant with great care and to look for independent confirmation of it before they could convict. In this context his Honour told the jury that the evidence of D, if they accepted it, was capable of providing confirmation of the complainant's evidence that she had sexual intercourse with the applicant and that one of the locations where that occurred was the cabin of his truck. He summarised D's evidence of her sexual encounter with the applicant in the cabin of his truck and then said this:

"Now, the accused, in his recorded interview, denied any such occurrence and twice volunteered the statement that the cabin of the truck was too small for this to happen. Then along comes [D] and [H], and both say that the accused had sexual intercourse with [D] in the truck in the presence of [H]. Having regard to his denial of any sexual activity at all, and particularly in the cabin of the truck, I direct you that that evidence is capable of lending support to the version of the complainant..." (Emphasis provided.)

Later, in the context of dealing with D's evidence about the applicant sexually penetrating the complainant in his hut, his Honour said:

"But the evidence of [D] as to those events in the hut is capable of being used by you as supportive of the evidence of the complainant in a more general sense, that is, as rendering her evidence the more probable having regard to the denials of the accused that any sexual activity took place at all between himself and the complainant. In other words, it may be used by you as tending to confirm the guilt of the accused even though it may not be used as tending to prove directly any particular act with which he is charged." (Emphasis provided.)

His Honour had also told the jury that D's evidence that she had been procured to have sex with the applicant in his truck was evidence which "tended to rebut the statement ... made by the accused in his record of interview that there was insufficient room in the cabin ... for an act of sexual penetration". Earlier in his directions to the jury, his Honour had told them that the similarities in the evidence of the two women as to how they were procured into a sexual liaison with the applicant were so marked that the evidence of D was capable of providing support to the evidence of the complainant.

It was contended for the applicant that such directions, in effect, told the jury that if they regarded the applicant's denials as false, such lies could be viewed as having been told out of consciousness of guilt and that they could use that fact as support, confirmation or corroboration of the complainant's evidence. It was submitted that his Honour was bound to direct the jury, in the circumstances, that before they could so use the evidence, they would have to be satisfied that such lies were deliberate, material and explained only by the applicant's fear that the truth would implicate him in the commission of the crime alleged_._[13]

This submission, however, is based on the false premise that the applicant's lies, as such, were the subject of his Honour's charge. True it is that his Honour told the jury that it was a matter for them to accept or reject the applicant's relevant denials and that, for that purpose, they could have regard, inter alia, to D's evidence on that issue. But it was not said by his Honour that, if the jury were satisfied that the applicant made false denials about his relationship with the complainant, such false denials could be used by them as evidence of his consciousness of guilt. Moreover, the prosecution did not contend that the applicant's false denials amounted to evidence of his consciousness of guilt. In the circumstances, therefore, there was no risk that the jury might have misunderstood how they could use the evidence of the applicant denials, assuming they did not accept them as being truthful. Consequently, no Edwards direction was necessary or, as we will explain later, desirable.[14]

We mention for completeness that Mr. Priest argued that the words "having regard to" in the passages of the charge that have been reproduced would have been understood by the jury as meaning "because of" and that, therefore, there was a risk that they would have understood that they could use the fact of the applicant's false denials as supporting the complainant's version of events and as being evidence of consciousness of guilt. In our view, however, the words "having regard to", when read in context, do no more than contrast the applicant's denials with the evidence of D about the events in question, which evidence was clearly capable of being used by the jury as rendering more probable the complainant's contrasting version of events.

Mr. Priest emphasised more generally that the words of the charge, to which reference has been made, were calculated to focus or had the effect of focussing the jury's attention unfairly on the accused's statements in his record of interview which became, in essence, his defence to the charges and, therefore, unduly emphasised the alleged false denials. But, for the reasons we have given, we think the submission is too narrowly focussed because it fails to take account of the true context of his Honour's charge. Appellate courts must be careful not to take individual passages in the judge's charge out of their proper context and construe them as if they stand alone. The trial judge's task in cases involving multiple sexual counts is difficult enough without having appellate judges construing each sentence in his charge as if it were a "stand alone" section in a statute. The fact that the jury would have understood the impugned remarks in the manner in which we have suggested, and not in the way which the applicant has submitted, is underlined by the fact that counsel did not contend in their addresses that lies told by the accused evidencing a consciousness of guilt had any part to play in the jury's consideration of the issues; nor did the judge so direct the jury. Furthermore, experienced counsel for the applicant at the trial took no exception to this part of his Honour's charge. Indeed, even if the impugned directions were capable of being understood by the jury in the manner now contended for by the applicant, we would not be disposed - on that ground alone - to direct a re-trial because, having regard to the whole of the evidence, we are of the view that no substantial miscarriage of justice has occurred. The directions, if understood in the manner contended for, would not have had any significant effect on the jury. This was, moreover, a case where the combined evidence of the complainant and D made it almost inevitable that the jury would reject as improbable the applicant's denials that any sexual activity had occurred between himself and the complainant.

Finally, we reiterate that, in the circumstances of this case, an Edwards direction would have disadvantaged the applicant. It would have had the effect of raising an issue upon which the parties were not joined and "of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant".[15] Their Honours in Zoneff went further and said[16] that, because in that case the Crown neither in cross-examination nor in any submission at the trial put that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction which the trial judge gave, in the course of which he reminded the jury that there were many reasons why people lied, should not have been given.

Grounds 1(b), 7(e) and 8(b) - maintaining a sexual relationship; propensity warning; separate consideration direction

These grounds assert that his Honour misdirected the jury as to the elements of the offence charged in count 1; misdirections which it was contended were compounded by a failure to give proper warnings in relation to propensity and uncharged criminal conduct.

As we have already noted, count 1 alleged the offence constituted by s.47A of the Act which has usually been described as an offence of "maintaining a sexual relationship with a child under the age of 16 years who was under the care, supervision or authority" of the accused. It is apparent from the debate which accompanied the second reading of the Bill[17] that the offence was introduced into the Act in 1991 with a view to overcoming what the Parliament perceived to be deficiencies in procedure as a consequence of a young child, who had been the subject of repeated sexual abuse by the same person over a lengthy period, being unable to identify with any precision the circumstances in which and the occasions upon which particular sexual acts had occurred.[18] Accordingly, charges of such events in individual counts had often failed for want of certainty.

However, the offence created by s.47A has the tendency to cut across time honoured concepts of procedural fairness to the accused in the administration of criminal justice. A person accused of a serious criminal offence is entitled to know with particularity the offence he is said to have committed, and to have identified the circumstances in and the occasion upon which he is said to have committed it. Unless such particulars are known, it will become difficult, if not impossible, to meet the case which is made against the accused who will be forced simply to resort to "global denials". It is, of course, the obligation of courts to give effect to the will of the legislature. But, having regard to the nature of this offence, and its characteristics, it is also the court's obligation to ensure, so far as practicable, that the trial is fair to the accused.[19]

In this case, as it seems to us, those requirements have been met. The framework of the presentment and the nature of the case made by the Crown combined to reduce to a minimum whatever unfairness is inherent in the offence alleged pursuant to s.47A. Furthermore, in our view, the directions given by the learned judge to the jury were full and adequate to meet the circumstances of the case. The relevant relationship alleged to have existed between the complainant and the applicant was said to have lasted for one month; namely from 15 October 1997 to 14 November 1997. Within this period counts 2 to 9 (inclusive) on the presentment alleged that specific offences had been committed by the applicant against the complainant. As has been noted, the five counts (counts 2 to 5 and 8) alleged specific offences of penile penetration of the complainant's vagina contrary to s.46 of the Act. The Crown relied upon the conduct alleged in those counts to prove the actus reus of count 1; that is the count under s.47A. Thus, those counts were themselves particulars of the conduct relied upon to establish the maintenance of the sexual relationship and, to that extent, the circumstances in and the occasions upon which the relevant criminal acts occurred were identified. Accordingly, as we have noted, counts 1 and the five counts became alternatives, and the Crown presented them in that way. Indeed, although counts 6, 7 and 9 alleged offences of a different character from the five counts and, thus, could not constitute the actus reus of count 1, they were also presented as alternatives to count 1 on the ground that they were part of the proof of the "maintenance of a sexual relationship" which was thought to be an element of count 1. It necessarily followed that when the jury returned a verdict of guilty on count 1, no verdicts were taken on counts 2 to 9 inclusive.

Although the five counts were said to be representative of a series of similar acts of sexual misconduct, the occasion of the occurrence of the particular offence was identified by referring to it, for example, as "the first time when vaginal intercourse occurred in the truck outside the B.P. service station" (count 3); or "the first time vaginal intercourse occurred in the bungalow at Tottenham" (count 2). Thus, in determining whether the three same specific acts, required to found the actus reus of count 1, had occurred, the jury's consideration was directed to identified occasions.

The learned trial judge specifically directed the jury that they could not convict the applicant upon count 1 unless they were satisfied that he had committed three relevant sexual offences of the same kind upon the complainant within the period alleged. No complaint was made in respect of that direction. However, his Honour also told them that, before they could convict the applicant of the offence alleged in count 1, they had to be satisfied that, throughout the period alleged, he "maintained a sexual relationship" with the complainant. His Honour said that:

"the offence which has to be proved is one of an ongoing nature; it is a course of conduct ... characterized by a given sexual character by the commission of certain unlawful acts."

In determining whether this element of the offence had been proved, his Honour told the jury that it would be proper to consider not only the specific acts of vaginal intercourse alleged in the five counts but also the anal intercourse alleged in counts 6 and 7 and the indecent act alleged in count 9.

Both parties have accepted before this Court that his Honour's directions in this respect were erroneous because proof of the offence created by s.47A does not require the Crown to establish, as a separate and discrete element of the offence, that the accused has maintained a sexual relationship with the complainant during the period alleged.[20] In the circumstances of this case the Crown alleged that such an error, far from causing a miscarriage of justice, was favourable to the applicant and that, at worst, his direction that they also had to be satisfied that a continuing sexual relationship was maintained was mere surplusage. It was submitted on the applicant's behalf, however, that, in the peculiar circumstances of this case, the direction did disadvantage him, and did lead to a miscarriage of justice, because it tended to shift the focus of the jury's attention to a consideration of sexual conduct which was not relevant to the proof of the offence alleged in count 1. Such consideration of extraneous matters, it was contended, might well have infected their finding that the applicant had committed the three relevant sexual offences which constituted the actus reus of the offence; once the jury were satisfied that a sexual relationship was being maintained, it became a "small step" for them to reason from such a finding that the three discrete offences had occurred. The risk of this occurring, it was submitted, was increased by the judge's failure to give an appropriate "separate consideration" warning. Such warning as was given, so it was contended, was only in relation to the offence in count 10 which related to a time discrete from the offences alleged in counts 1 to 9 inclusive. Furthermore, it was submitted that no satisfactory "propensity warning" was given in respect of the complainant's evidence.

In our view there is nothing in these grounds. As we read them, his Honour's directions to the jury were carefully crafted. At the outset he gave to them general directions of law moulded to the circumstances of the case before them. We shall return to those directions shortly. He then gave them directions upon the elements of the offences alleged. In respect of count 1, having given full directions to the jury as to the meaning of the words "care, supervision or authority", his Honour told them that:

"it must be proved that the accused during the particular period, did an act in relation to the child which would constitute an offence under the relevant provisions of the Crimes Act and that such an act took place between the accused and the child on at least two other occasions during that period. And this is the peculiar relevance of the allegations in counts 2, 3, 4, 5 and 8 to count 1. The acts upon which reliance is placed by the Crown in this case are the acts of sexual penetration by the insertion of the penis of the accused into the vagina of the child ... . [Those are the acts alleged in counts 2, 3, 4, 5, and 8.] I instruct you that acts of that nature ... are acts which would constitute offences under the relevant provisions of the legislation. And, indeed, the accused is charged, as alternatives to count 1, with the five discrete offences. ... But in order to prove the offence in count 1 it is necessary for the Crown to prove beyond reasonable doubt that at least three acts of that nature were committed by the accused within the time embraced by count 1. Now, importantly, if he is to be convicted you must first be unanimously satisfied beyond reasonable doubt that he committed the same three acts, each of which constituted an offence of a sexual nature. If you are not unanimously satisfied ... that he committed the same three acts then he could not be convicted. It may be that unanimously you are satisfied that he committed all of the acts relied upon and alleged in counts 2, 3, 4, 5 and 8. It may be that you are not satisfied that he committed any of those acts. But, if he is to be convicted, you must be unanimously satisfied that he committed three of them, ... but it must be the same three. And you cannot convict on count 1 unless unanimously you are satisfied that he committed three acts of sexual penetration of this nature, and the same three acts."

In the light of those very clear directions, we are not persuaded that the fact that the judge told the jury that they also had to be satisfied that the applicant "maintained a sexual relationship with [the complainant] during the period" in any way constituted a miscarriage of justice. In our view such a direction was entirely favourable to the applicant and could not have shifted the focus of the jury's attention from the earlier directions which clearly told them that, before they could convict, they had to be unanimously satisfied that the accused had committed the same three of the five acts of vaginal penetration alleged in the five counts.

Nor are we persuaded that his Honour's directions as to "separate consideration" of the counts were deficient. In a sense, having regard to the way in which the presentment was framed, the judge was not able to tell the jury directly that they should consider the offence alleged in count 1 separately from the offences alleged in counts 2 to 9 inclusive. The jury would have understood from what they had been told from the outset that the latter offences were constituent parts of the former offence, in the sense that they were particulars of it and alternatives to it. They necessarily had to consider whether the same three offences alleged in the five counts had been committed before they could convict on count 1. Although it is now contended that it was unfair to the applicant to allege the offence under s.47A of the Act as an alternative to the substantive offences alleged in counts 2 to 9, we do not believe that it was. The jury first had to consider the offences alleged in the five counts before they could convict of the offence in count 1. Probably for good reason, no application was made by experienced trial counsel to sever the counts on the presentment. If the jury had returned separate verdicts of guilty on counts 2 to 9, the applicant would have been at a distinct disadvantage on the issue of sentence, particularly having regard to the fact that in respect of six of the offences he would have been sentenced as a "serious offender".

In our view, it is also not correct to contend that his Honour gave inadequate warnings to the jury as to their obligation to consider separately the offences alleged in counts 2 to 9. It is true that he told them that they would need to consider count 10 separately from counts 1 to 9 because it was "separated in time and circumstance", and that he told them that it would be necessary for them "to deal to some extent with counts 2 to 9 when dealing with count 1 - and that is quite obvious". However, his Honour also told the jury, in the general directions of law which he had given them, and to which we have referred, that "in respect of any count which you have under consideration", they had to be satisfied that the applicant had committed the offence alleged in that count beyond reasonable doubt. Further, his Honour told the jury, albeit in the context of directions as to the use of "extraneous sexual conduct" that:

"The commission of offences with which [the applicant] has been charged can only be proved by evidence which relates to those charges;"

Having regard to the fact that the evidence of the complainant was that the offences alleged in counts 2 to 9 had occurred at different places and in discrete circumstances, and also to the fact that his Honour directed the jury's attention to the evidence relating to each count, it seems to us that the jury would have been under no misapprehension as to what evidence could be used to prove each such offence. That view appears to have been shared by trial counsel for the applicant, because no exceptions were taken to his Honour's directions.

Nor, in our view, did his Honour's directions fail to bring home to the jury the fact that they were not entitled to engage in the impermissible chain of propensity reasoning. On more than one occasion during the course of the trial his Honour had told the jury that "the law does not allow evidence to be given merely for the purpose of demonstrating that a person has a propensity to commit an offence", and that evidence given of sexual conduct beyond that relevant to an offence charged can only be taken into account when considering an offence charged if it is relevant and admissible in respect of that offence. His Honour repeated that warning in the course of his directions to the jury when telling them that the offences charged can only be proved by evidence which relates to those offences. It is apparent from what we have already said that the jury were well aware that they could only find the applicant guilty of the offence charged in count 1 if they were satisfied that three or more of the offences alleged in the five counts were proved beyond reasonable doubt. In those circumstances it would have been superfluous for his Honour to have given a discrete "propensity warning" in relation to their consideration of that count.[21]

As has often been said, a judge's charge is not a general treatise on the law. Rather his directions are required to be moulded to meet the circumstances of the case before the jury. In this case, where the applicant's defence amounted to a denial of all sexual misconduct, we are of the opinion that the judge's directions of law were sufficient to enable the jury fairly to try the issues before them.

In relation to the application for leave to appeal against sentence, Mr. Croucher relied essentially on the written submissions filed on behalf of the applicant. The grounds pressed, were these.

Under cover of these grounds, it was submitted that:

- his Honour failed to place sufficient weight on mitigating factors; and

- his Honour placed too much weight on the protection of the community.

The second and third matters are, in effect, particulars of the contention that the sentence is manifestly excessive, a contention that does not admit of much argument. The essential question is whether the sentence is within the range of sentencing options that were properly available to his Honour. The task of a sentencing judge is to impose an appropriate sentence given the gravity of the offence, the relevant sentencing principles and matters personal to the applicant and other mitigating factors. In our view, his Honour's sentencing remarks make it apparent that he had regard to those matters in constructing the sentences. The offence in this case is obviously to be regarded as a serious one and the applicant's cynical acts towards the complainant constituted the type of conduct from which the legislation seeks to protect young people. The gravity with which the community views these offences is reflected in the maximum term of imprisonment which the Parliament has prescribed for it. The applicant had no hesitation in cynically exploiting the vulnerability of the young complainant in the way he did in order to satisfy his sexual appetite. His denial of that conduct was obviously rejected by the jury and he showed no remorse in respect of his offending conduct. In the circumstances of this case, the principles of general and specific deterrence were important sentencing considerations as were denunciation, punishment and the protection of the community. His Honour balanced against the aggravating factors the mitigating matters to which Mr Croucher referred us and there is nothing in his Honour's sentencing remarks that indicates that he did not give sufficient weight to them. In our view, neither the individual sentences nor the total effective sentence was outside the range of sentences properly available to his Honour.

It was contended on behalf of the applicant that his Honour failed to regard delay in the disposition of the case as amounting to a prejudice to the applicant and as a mitigating factor. Although a substantial delay occurred between conviction and the hearing of the plea in mitigation, such delay was primarily due to the applicant refusing to be examined by a psychiatrist and a psychologist and in him seeking adjournments. There was, however, no undue delay between the date of arrest and the commencement of the trial. In the circumstances, this ground must fail.

It was common ground that his Honour erred in determining what was the maximum sentence that could be imposed under the provision. As we have previously noted, his Honour thought it was 15 years whereas the maximum term

prescribed was 25 years. Given the circumstances of the case, apart from the fact that it favoured the applicant, nothing turns on this error.

It was claimed for the applicant under these grounds that the principle of totality was infringed and that his Honour erred in ordering cumulation to the extent that he did, or at all. In the circumstances, including those to which we have briefly referred, there was no error by his Honour in applying the principle of totality. Similarly, some cumulation was appropriate given the times when counts 1 and 10 occurred, and that they related to different types of conduct. In our view, the cumulation was not excessive.

In our view, therefore, the applications for leave to appeal against conviction and sentence should be dismissed.

[9] R. v. Boucher [1995] VicRp 7; [1995] 1 V.R. 110 at 123 per Phillips, C.J., Brooking, Teague, Coldrey and Eames, JJ.; R. v. Best [1998] 4 V.L.R. 603 at 610 per Callaway, J.A.

[14] See R. v. Zoneff [2000] 8th C.A. 28; 172 A.L.R. 1 at [16] and [20]

[17] Hansard 13-20 March 1991, 506-17; 652-668.

[18] R. v. KRM [1999] VSCA 91; (1999) 105 A.Crim.R. 437 at 439 per Buchanan, J.A. with whom Phillips, C.J. and Batt, J.A. agreed. Cf. S v. R. [1989] HCA 66; (1989) 168 C.L.R. 266.

[19] cf. KBT v. R (1997) 191 C.L.R. 417 at 432 per Kirby, J.

[21] See R. v. Emery [1999] TASSC 141; (1999) 110 A.Crim.R. 221 at 227-8 per Slicer, J. After the conclusion of argument, Mr Priest referred us Emery, a decision of the Tasmanian Court of Criminal Appeal which is concerned with the requirement for a propensity direction in relation to a charge of maintaining a sexual relationship. Our conclusion in the present case is not, in our view, inconsistent with that decision. We have also had regard to R. v. Cramp [1999] NSWCCA 324; (1999) 110 A.Crim.R. 198 to which Mr Priest also referred us after argument, in which the New South Wales Court of Criminal Appeal discussed the need for unanimity where alternative bases of liability are alleged in manslaughter cases.

CRIMINAL LAW - Maintaining sexual relationship with child between 10 and 16 years - Whether applicant maintained sexual relationship with complainant - Whether complainant under applicant's "care, supervision or authority" within s.47A Crimes Act 1958 - R. v. Howes [2000] VSCA 158. CRIMINAL LAW - Sentence - Maintaining sexual relationship with child between 10 and 16 years - Eight years' imprisonment not manifestly excessive.

At a glance

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Judgment (69 paragraphs)

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Cases Cited (2)