R v Milton

LOWER COURT District Court JURISDICTION : LOWER COURT 00/11/1019 FILE NUMBER(S) : LOWER COURT JX Gibson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60251/03

TOBIAS JA HIDDEN J GREG JAMES J

Friday, 18 June, 2004 REGINA v Paul Steven MILTON Judgment 1 TOBIAS JA: I agree with Hidden J 2 HIDDEN J: The appellant was tried in the Sydney District Court upon an indictment containing six counts of homosexual intercourse with a male aged between ten and eighteen years, two counts of committing an act of indecency towards a person under the age of sixteen years and one count of detaining for advantage. The jury found him guilty of all counts, and he was sentenced to terms of imprisonment aggregating sixteen years with a non-parole period of twelve years. He appeals against the convictions and seeks leave to appeal against the sentences.

The evidence 3 There were two complainants, to whom I shall refer as CB and MP, who were both in their early teenage years at relevant times. The first five counts, all of homosexual intercourse, related to CB. They were alleged to have occurred over a period between late 1987 and early 1990, when the appellant was in his early thirties. 4 CB had come from an unstable family background. His father had died when he was young, his mother had been unable to look after the family, and his older brother and sisters had been in and out of homes. In 1987 the appellant lived at Mount Pleasant, and a friend of CB's brother, Stephen Kennett, lived there with him. CB was then thirteen years old, and his association with the appellant began when he would visit Steven Kennett at the Mount Pleasant home. He would stay overnight at weekends. Initially, he slept on a mattress on the floor in the lounge-room or in Mr Kennett's room. However, after some months, he slept on a mattress on the floor in the appellant's room. 5 It was the Crown case that there were regular parties at the home, when CB would drink alcohol and use marijuana, nitrous oxide bulbs and the drug popularly known as "rush", supplied to him by the appellant. CB said that the appellant also supplied him with these drugs on other occasions. 6 It is unnecessary to set out in detail CB's account of the sexual activity giving rise to the charges. The first occasion was in late 1987. CB put it in that period because, he said, it was shortly after he had bought an album by the rock group INXS which had been released in October of that year. He had been sleeping on the mattress in the appellant's room and awoke to find the appellant sucking his penis. He protested, but the appellant told him that he needed to lose his inhibitions and that the world was "stuffed up" because people were not sufficiently open minded. This act of fellatio constituted the first count. 7 During the Christmas holiday break between 1987 and 1988 CB accompanied the appellant and two other men on a camping trip to Ulladulla, on the South Coast of New South Wales. One night prior to this trip the appellant was masturbating and encouraged CB to do likewise. He sucked CB's penis and licked his anus. He then had anal intercourse with the boy, but CB complained of pain and insisted that he stop. He then had CB penetrate him anally. These acts of anal intercourse constituted the second and third counts. 8 On one occasion during the camping holiday at Ulladulla the appellant sucked CB's penis, then had the boy suck his penis until he ejaculated. This latter act constituted the fourth count. 9 In April 1988 the appellant moved house to South Penrith and CB moved in with him. CB left school in October of that year, at the age of fifteen. He went to work for the appellant in his electrical business, and the appellant made him a shareholder and director of the company. The appellant paid him a wage, as well as paying for his clothing and household expenses. 10 On an occasion late in 1989 when they were working together, they returned to the home at South Penrith. The appellant persuaded CB to go to the bedroom, where he sucked his penis and again had anal intercourse with him. That act of anal penetration was the subject of the fifth count. 11 CB said that the appellant would regularly masturbate in front of him and would have him do the same, saying that it was a way of being open minded and losing inhibitions. Fondling, touching and kissing took place daily. On many occasions CB was reluctant to take part in sexual activity and was even reduced to tears, but the appellant would persist. The relationship came to an end in mid 1990, when CB moved out of the appellant's home and returned to live with his mother. 12 Steven Kennett gave evidence in the Crown case. In particular, he spoke of an occasion when he saw the appellant and CB lying on the appellant's bed in their underwear, "spooning each other, or facing front to back." He said, "They were close but not too close, like they weren't touching at all." He also said that there were parties at the Mount Pleasant home at which CB was present, during which alcohol was consumed and the drugs to which I have referred were used. The effect of his evidence was that, for the most part, those drugs were supplied by the appellant. He ceased to live with the appellant after the move from Mount Pleasant to South Penrith. 13 The remaining four counts in the indictment related to the other complainant, MP. These offences were alleged to have been committed at the home at South Penrith in 1990. MP had met the appellant in the previous year, when he was about thirteen years old. The appellant had fostered two older boys who went to the same school as MP. One of those boys was Marcus Mahcur, who also gave evidence in the Crown case. I shall turn to that evidence in a moment. In 1990 the appellant offered MP some weekend and holiday work. 14 MP's account of the sexual activity giving rise to the charges can also be described briefly. On an occasion in 1990, during a school holiday break, he was invited to the appellant's home. He spent time with the other two boys and ended up staying the night. He drank alcohol and smoked cannabis. As a result, he was not feeling well and the appellant took him to his bedroom. There the appellant showed him pornographic magazines, discussed masturbation and told him that he should not be embarrassed if the magazines aroused him. He felt MP's penis and touched him in the thigh area, then put his hand inside his own shorts and masturbated himself. It was this last act which constituted the sixth count (committing an act of indecency). 15 MP said that a few weeks later he was at the appellant's home, where again he drank alcohol and used cannabis and stayed the night. Again, the appellant took him to his room, showed him pornographic magazines and masturbated himself, on this occasion exposing his penis. This act gave rise to the seventh count (committing an act of indecency). 16 The eighth and ninth counts, detaining for advantage and homosexual intercourse, arose from much more serious allegations. MP said that he stopped working for the appellant for a while after the incident the subject of the seventh count, and the appellant apologised to him for having lost control of himself. A few months later MP was again at the appellant's home, where they were drinking and listening to music. Yet again, the appellant took the boy to his room and produced a pornographic magazine, but MP did not want to look at it. A little later the appellant himself looked at the magazine and began to masturbate. Later again, the appellant spoke to MP about all the favours he had done for him, including not telling his father that he had been smoking cannabis. 17 He then seized MP by the arm, told him he was going to get what he wanted and pushed him onto the bed. MP protested, but the appellant turned him over onto his stomach, straddled him and tied his arms to the bed with a rope (the eighth count). MP kept telling him to stop but the appellant said that he "owed him this". He then removed MP's shorts and underwear and had forcible anal intercourse with him. MP was protesting and complaining that it hurt. After he ejaculated, the appellant untied the boy, warning him that if he told anyone what had happened he would tell his father about his drinking and smoking cannabis. 18 Neither CB nor MP made any complaint about the appellant's behaviour until some years later, a matter about which the trial judge gave the jury appropriate directions. Each of them gave unchallenged evidence that he had never met the other. 19 The evidence of Marcus Mahcur bore upon the allegations of both complainants. He visited the South Penrith home in 1988, sometimes staying the night, and he moved into the house in the early part of 1989. He met CB and observed him to sleep in the appellant's room. He confirmed the pattern of drinking and drug use, saying that it was the appellant who supplied the alcohol and the drugs. 20 He met MP late in 1989. Again, he confirmed the use (by himself as well as MP) of alcohol and cannabis supplied by the appellant. He confirmed the presence of pornographic magazines in the house. He recalled a couple of occasions when MP stayed overnight, sleeping in the appellant's room. He also gave evidence of two conversations with the appellant about MP. In one of them, the appellant said that MP was "good looking" and gave him a mark out of ten for his looks. In the other, which took place in 1990, the appellant said that he had had an argument with MP. He added that during the previous night he had "had sex" with MP and had "got him to masturbate", and that he "wanted to try to fix the problem with him". After this, the witness said, MP did not come to the house as often. 21 The appellant gave evidence, denying any sexual contact with either of the complainants. He agreed that CB had worked for him and that he had made him a shareholder in the business, but said that he dismissed him because he had stolen money. He accepted that he may have offered MP some work but said that he could barely remember him. He kept alcohol and rush, but denied maintaining a supply of cannabis. He denied supplying either complainant with any drugs or pornographic magazines. 22 He also denied having admitted to Marcus Mahcur that he had had sex with MP or making any comment to him about MP's looks. He said that late in 1991 he transferred CB's share in his business to Mr Mahcur and made him a director. However, after a few years they had a falling out over business matters, the appellant dismissed him, and they parted on unfriendly terms.

Conviction appeal 23 Four grounds of appeal against conviction were argued. The first two are linked. They assert that his Honour ought to have directed separate trials in respect of each of the complainants, CB and MP, and that his Honour erred in allowing the testimony of each complainant to be used in support of that of the other as tendency evidence. To understand these grounds it is necessary to examine the pre-trial history of the proceedings. 24 The appellant was originally charged with a large number of counts involving eight complainants. In due course, two indictments were prepared. One related to three complainants and the other to the remaining five, including CB and MP. Counsel for the appellant at the trial (who did not appear in this Court) sought separate trials in respect of each of the five complainants. As one would expect, the argument centred upon whether the evidence of each complainant might be admissible in the cases of the others as tendency evidence. Reference was made to the relevant sections of the Evidence Act, in particular, ss 97 & 101. Defence counsel submitted that the evidence did not meet that statutory test, although it seems that the argument was directed primarily to the question whether it was reasonably possible that the complainants had put their heads together to concoct their evidence: cf Hoch v The Queen (1988) 165 CLR 292. As to that, counsel acknowledged the evidence that CB and MP had not met each other. 25 As far as the ground concerning the refusal to order separate trials is concerned, the real question on appeal is whether, in the event, it appears that the joint trial was unfair: R v Guldur (1986) 8 NSWLR 12, per Street CJ at 15; R v Verma (1987) 30 ACrim R 441, per Hunt J at 445. For present purposes, that requires an examination of the question raised by the second ground, that is, whether the evidence of the two complainants passed muster as tendency evidence. Since the trial, the approach to that question has been settled by a five judge bench in R v Ellis [2003] NSWCCA 319. 26 His Honour did not deliver a formal judgment on the question of separate trials or the related question of the admission of tendency evidence, although his approach emerges from his exchanges with counsel in the course of argument. The basis of his admission of the tendency evidence appears from a passage in the summing up, in which his Honour referred to "similarities" in the evidence of each of the complainants tending to show that the appellant "was sexually attracted to boys in their early teens". His Honour continued: The Crown says you would be satisfied beyond reasonable doubt this sexual attraction or guilty passion was shown to exist towards each of the complainants and that you would be further satisfied that it was because of this sexual attraction or guilty passion that the accused on each of the occasions charged in the indictment gave way to that feeling and indulged in the way alleged in each of the counts on the indictment. 27 His Honour then set out the evidence said to be available for that purpose, as follows: (a) that both complainants were about thirteen years old when their association with the appellant began;

(b) that both of them worked for the appellant; (c) that alcohol and drugs were available at the appellant's home; (d) that the appellant allowed both complainants "to avail themselves of these drugs and alcohol";

(e) that the appellant supplied the drugs; and (f) that both complainants slept in the same bed as the appellant in their underwear. 28 Mr Golding, who appeared for the appellant in this Court, pointed out that the last of those matters was in error. While there was evidence of CB being in the appellant's bed in his underwear, there was no such evidence in the case of MP. However, no redirection about this was sought at the trial and it is not of such significance as to have given rise to a miscarriage of justice. 29 Otherwise, Mr Golding challenged the admissibility of the evidence on two bases: firstly, that the suggestion of a sexual attraction on the part of the appellant for teenage boys lacked the probative force necessary to justify its admission as tendency evidence because of its generality and, secondly, that, while there were some similarities between the accounts of the two complainants, there were also marked dissimilarities. The circumstances in which each of them came to associate with the appellant were different, as was the nature and duration of their relationship with him. The nature and extent of the sexual activity recounted by CB differed from that alleged by MP. While the use of alcohol and drugs by CB did not appear to have played any part in his sexual encounters with the appellant, the evidence of MP carried the implication that the appellant supplied them to reduce his resistance. CB's employment by the appellant was full-time and began only after the relationship had been on foot for some time, whereas MP was offered work virtually from the outset and it was only of a casual nature. 30 This is but a broad summary of Mr Golding's fairly detailed analysis of the evidence. However, as Ellis makes clear, the admissibility of tendency evidence must be determined by the yardsticks established by the Evidence Act: whether it has significant probative value (s97) and, in criminal cases, whether its probative value substantially outweighs any prejudicial effect it may have on the accused (s101). It is the latter test which is the focus of these grounds of appeal. An examination of the similarities and dissimilarities between the accounts of two witnesses may be relevant to that test, but in a case such as this it cannot be determinative. 31 The detail of the sexual activity alleged by each of the complainants and the circumstances surrounding it is not to the point. True it is that evidence that the appellant had sexual contact with two boys in their early teens would not, of itself, be sufficient. However, that is not the only common thread in their evidence. What emerges from the testimony of each of them is an attempt by the appellant to foster a relationship with them conducive to sexual contact despite their youth and immaturity. This arises not just from his employing each of them. It is to be found in his encouraging them to drink and use drugs in a manner entirely inappropriate for boys of their age, and in his efforts, by word and deed, to loosen their natural sexual inhibitions. It is also to be noted that, on the account of both complainants, he was prepared to impose his will upon them in the teeth of their resistance. 32 Given that there was no suggestion that they had put their heads together to fabricate their evidence, the testimony of the two complainants, viewed in combination, had considerable probative force in rebutting the appellant's assertion that his association with each of them was entirely innocent. This had to be weighed against the undoubted prejudice to the appellant of having the allegations of both complainants determined by the same jury, with the danger that the jury might reason that they could accept the evidence of the complainants merely because of the similarity of their accounts. However, his Honour gave the jury the conventional warning about careful scrutiny of the evidence of each of the complainants and the need for separate consideration of each count in the indictment. No complaint was made, either at the trial or on appeal, about the adequacy of the directions in relation to this aspect of the case. 33 Whether evidence tendered as tendency evidence passes the test imposed by s101 of the Evidence Act is very much a matter of judgment in the particular case. No doubt, in many cases, including the present, it is a question about which reasonable minds might differ. However, what the appellant must show is that it was not open to his Honour to have found that that test was satisfied. I am not so persuaded and, accordingly, I would dismiss these two grounds of appeal. 34 The remaining two grounds of appeal against conviction are also linked. They relate to his Honour's directions to the jury about certain evidence said to be confirmatory of the testimony of the complainants. The complaint is that much of this evidence was not confirmatory in the relevant sense and that, in any event, his Honour's directions about it were inadequate. 35 As I have said, his Honour directed the jury about the need for careful scrutiny of the evidence of the complainants and their delay in complaint. Indeed, he gave a direction that it would be dangerous to convict the appellant on the evidence of the complainants alone, and it was in this context that he added: However, I now tell you that there is in these cases evidence from other witnesses and sources tending to confirm the evidence given by the complainants that the offences were committed by the accused. It does not have to be evidence of a person who sees the actual offence committed. That would be what the lawyers call 'direct evidence' and no other evidence would be required … it just has to be evidence which tends to confirm the evidence of the complainants that the crime was committed and the accused committed the particular offence. 36 His Honour went on to set out a number of matters which, he said, were capable of providing confirmation. Some related to the allegations of the complainants generally, and some to particular counts. It is unnecessary to recite them all. Some were matters of background or setting, which were uncontroversial and, indeed, were the subject of a set of agreed facts. Among these were the fact that the appellant was the lessee of the premises at Mount Pleasant and South Penrith at the relevant times, and that the INXS album referred to by CB was released in October 1987 (count 1). There was independent evidence of the trip to Ulladulla at the end of 1987 (count 4), as there was of the work performed by CB and the appellant on the occasion when, according to CB, they returned to the house at South Penrith and anal intercourse took place (count 5). 37 His Honour also dealt with a number of matters more directly linked to the sexual activity alleged. These included the evidence of Steven Kennett and Marcus Mahcur about the alcohol and drugs, the evidence of Mr Kennett of seeing CB and the appellant in the "spooning" position, the evidence of Mr Mahcur about the presence of pornographic magazines in the house and his evidence of conversations in which the appellant complimented MP on his looks and admitted sexual contact with him. 38 The effect of the direction quoted above was that this evidence was capable of confirming not only that the offences were committed but that the appellant was the perpetrator of them. To that extent this part of the summing up appears to have been based upon the common law notion of corroboration, even though his Honour did not at any stage use that term. An oft quoted exposition of what amounts to corroboration is to be found in The King v Baskerville [1916] 2 KB 658, per Lord Reading CJ at 667: We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. 39 No direction about corroboration was required: s164 Evidence Act. However, Mr Golding submitted that what his Honour said to the jury amounted to a corroboration direction and, that being so, he should have left to the jury as material capable of being corroborative only those aspects of the evidence which could meet the common law test. Much of the evidence said to be confirmatory, he argued, did not meet that test. For example, evidence of the appellant's tenancy of the premises at Mount Pleasant and South Penrith, of the release of the INXS album or of the camping trip to Ulladulla did not confirm the evidence of either complainant in any material particular. Insofar as some of the evidence established opportunity for the appellant to have committed the offences, that could not of itself amount to corroboration: Eade v The King (1924) 34 CLR 155 at 158. 40 Mr Golding acknowledged that it might have been appropriate to consider some of these items of evidence in combination, rather than in isolation, to assess their corroborative potential: R v Kalajzich & Anor (1989) 39 ACrim R 415 at 426 ff. However, he pointed out that his Honour did not analyse the evidence in that way and gave no direction to that effect. Accordingly, he argued, the jury would have been left with the impression that each of the items of evidence referred to was capable of confirming the commission of the offences by the appellant, either generally or in relation to a particular count. 41 Viewed from a common law perspective, there is some force in these arguments. However, as I have said, a direction about corroboration was not necessary. I very much doubt that the introductory passage in this part of the summing up which I have quoted would have attuned the jury to the refined notion of corroboration as lawyers understand it. Viewed as a whole, all his Honour's directions would have conveyed is that there was a body of evidence in which it was open to them to find confirmation of the account of each of the complainants, either generally or in particular respects. His Honour emphasised that it was for the jury to determine whether they accepted that evidence in whole or in part and, if so, whether they did find it confirmatory of the testimony of either complainant. He also reminded them that much of it was disputed by the appellant. 42 Obviously, in trials such as this evidence tending to confirm a complainant's account in any material respect will always be important and it will often be appropriate for it to be the subject of directions by the trial judge: R v Connors [2000] NSWCCA 470, per James J at [133]. However, as Heydon JA observed in R v Tubou [2001] NSWCCA 243 at [15], the Evidence Act has "made obsolete the technicalities of the former law on corroboration" and, in my view, it is better to avoid reference to that notion, whether expressly or by implication. That said, I am not persuaded that his Honour's directions in the present case would have diverted the jury from an appropriate assessment of the evidence said to support that of the complainants. 43 Finally, Mr Golding complained that his Honour did not direct the jury that any evidence which they did find to be confirmatory of the testimony of either of the complainants could be used for that purpose only and could not be used "as positive proof of the appellant's guilt." No such direction was sought and no authority for it was cited. Mr Golding did refer to a passage from the judgment of Gaudron J in BRS v The Queen (1977) 191 CLR 275 at 302 but, read in its context, no support for his argument is to be found in that passage. Her Honour was there dealing with the central issue in that case, that is, that a witness had given evidence which, though admissible, might have been used by the jury in an impermissible way and the trial judge had given them no guidance about how it should be approached. No such difficulty arose in the present case. Clearly, the jury were entitled to use any material which they found to be confirmatory of the evidence of either complainant in support of the conclusion of guilt. 44 I would dismiss the appeal against conviction.

Sentence application 45 As I have said, his Honour passed sentences aggregating sixteen years with a non-parole period of twelve years. He achieved that result by the partial accumulation of sentences and by passing fixed terms of imprisonment on all counts except the ninth, in respect of which he passed a substantial head sentence with a non-parole period. To understand the first complaint in the application for leave to appeal, it is necessary to set out each of the sentences and the manner in which they were structured. 46 In respect of the five counts of homosexual intercourse involving CB, his Honour sentenced the appellant as follows:

Count 1 : Two years from 17 October 2002; Count 2: Three years from 17 October 2003; On each of counts 3 and 4: Two years from 17 October 2003; Count 5: Two years from 17 October 2005. 47 In respect of the remaining four counts concerning MP, his Honour sentenced the appellant as follows:

On each of counts 6 and 7 (committing act of indecency): one year from 17 October 2006;

Count 8 (detaining for advantage): three years from 17 October 2005;

Count 9 (homosexual intercourse): ten years, with a non-parole period of six years, from 17 October 2008. 48 The homosexual intercourse charges were laid under s78K of the Crimes Act and carried a maximum sentence of ten years imprisonment. Each of the charges of committing an act of indecency, pursuant to s61E(2) of the Crimes Act, carried a maximum of two years imprisonment. The charge of detaining for advantage was brought under s90A of the Crimes Act, carrying a maximum of fourteen years. (All these provisions have since been repealed.) 49 It will be seen that on the last count of homosexual intercourse, count 9, his Honour passed the maximum sentence. In his remarks on sentence he described the offence as falling into the worst category, finding that the appellant had exhibited "arrogance and cruelty" and had sought by forcible intercourse to demonstrate his "power and control" over MP. His Honour saw this behaviour as clearly marking the appellant "as a danger to the children in our community …". 50 However, it is what his Honour said a little later which gives rise to the first complaint about the sentencing process. With reference to all of the offences, including the ninth count, his Honour said: I propose, because of the period of time over which these offences occurred, and the fact that the two victims are involved in two different groups of offences, to accumulate the sentences to an extent and the sentence that will encompass his total criminality will be the final count of homosexual intercourse on the victim (MP). 51 Although his Honour went on to say that he proposed to sentence the appellant in accordance with the principles enunciated in Pearce v The Queen (1998) 194 CLR 610, Mr Golding argued that the concluding words of that passage demonstrate that he fell into the very error identified in that case (in the joint judgment at 623-4). That is undoubtedly so if his Honour did inflate the sentence on the ninth count so as to embrace the criminality of the others. On the other hand, it appears that his Honour sought to justify the imposition of the maximum sentence for that offence upon the basis that it fell into the worst category. 52 There is a tension between these two passages of his Honour's remarks, but I find it unnecessary to resolve it. It is in no way to derogate from the principles expressed in Pearce to say that, in a case such as the present, this Court should not intervene unless it is satisfied that the aggregate sentence for all of the offences cannot stand. Otherwise, we could do no more than re-structure the sentences in such away as to leave that aggregate unchanged. To do so would be an arid exercise, and one which Mr Golding did not suggest we should undertake. It would be inconsistent with the practical, remedial approach to sentence appeals spelled out in s6(3) of the Criminal Appeal Act. 53 In the event, Mr Golding did not submit that the aggregate sentence of sixteen years is manifestly excessive. His only other challenge was to the effective non-parole period of twelve years, the argument being that his Honour should have found special circumstances warranting a lesser period. In specifying a non-parole period of six years in respect of the sentence of ten years on the ninth count, his Honour did depart from the normal statutory ratio. However, he made it clear that he did so only because that sentence was to be accumulated upon other sentences. The effective non-parole period of twelve years maintains the statutory ratio to the aggregate sentence of sixteen years. This, no doubt, was his Honour's intention. 54 Mr Golding relied upon the appellant's subjective case. He was forty-four years old at the time of sentence and is now forty-five. He had no previous convictions. Reports before his Honour suggest that he had some difficulties in his earlier years because of his sexual orientation, but that he had generally maintained a responsible and industrious lifestyle. A psychological report noted his vulnerability in the prison system because of his background and, of course, the nature of his offences. 55 His Honour referred to all these matters in his remarks. Nevertheless, Mr Golding argued that he failed to give them the weight they deserved on the question of special circumstances, particularly the fact that the appellant would be likely to serve his sentence under difficult circumstances and would require assistance to re-adjust to society upon his release after a lengthy custodial term. No doubt, these features of the case could amount to special circumstances but his Honour, having considered the matter, found that they did not. That was very much a matter of judgment, one with which this Court would not lightly interfere: R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at [73]. I might add that the four year period of parole eligibility should be more than enough to assist the appellant's re-entry into society and, in any event, it was necessary for the non-parole period to reflect the undoubted seriousness of the offences. I am not persuaded that error has been shown in this respect. 56 I would grant leave to appeal against the sentences but would dismiss the appeal. 57 GREG JAMES J: I agree with Hidden J **********

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