R v P J S [2004] VSCA 52

11. After a plea in mitigation, the trial judge sentenced the applicant as follows:

The judge ordered that six months of the sentences imposed on counts 1, 12 and 16 and 12 months of each of the sentences imposed on counts 3, 5, 6, 8 and 10 be served cumulatively upon each other and upon the sentence imposed on count 4. That produced a total effective sentence of 10½ years. His Honour ordered the applicant to serve a minimum period of eight years before becoming eligible for parole. His Honour also imposed sentences on the two counts of document falsification to which the applicant had pleaded guilty. Those sentences were to be served concurrently with the other sentences.

22. The applicant has applied to this Court for leave to appeal against two of the convictions (those on counts 11 and 12) and against the sentences imposed. The two convictions against which he seeks leave to appeal are those alleging the offences of wilfully committing an indecent act with A.S. between February 2000 and April 2000 when she was a girl under the age of 16 years. It is contended by Mr Croucher on behalf of the applicant that the evidence at the trial did not justify the jury's conclusion that A.S. was under the age of 16 years at the time when the two offences were alleged to have occurred; and that the judge's directions in respect of those counts were deficient. In the circumstances it is contended that this Court should set aside the convictions and enter verdicts of acquittal in their stead. In that event, it is submitted that the Court is at liberty to exercise the sentencing discretion afresh. Apart from removing the burden of the sentences imposed by the judge on counts 11 and 12, it is submitted that we should substantially modify the cumulation orders which the judge made in respect of the other counts to produce a total effective sentence which, so it is contended, is proportionate to the gravity of the offending. Mr Croucher submits, in the alternative, that even if we do not set aside the convictions on counts 11 and 12, we should conclude that his Honour's sentencing discretion has miscarried as a consequence of the excessive cumulation orders which he has made and that we should substantially modify the total effective sentence and the non-parole period which has been ordered.

26. In respect of the conviction application, it is submitted that the trial became unfair in relation to counts 11 and 12 because the judge had failed to properly direct the jury as to the significance of the evidence relating to the dates upon which those offences were said to have occurred. In essence it is contended that the evidence as to the times at which those offences occurred was so vague that a jury could not reasonably conclude that they occurred at a time when A.S. was "under the age of 16 years"; and that the judge's directions in respect of this element failed to adequately draw the jury's attention to the significance of the relevant evidence.

29. The two indecent acts alleged in counts 11 and 12 were said by the victim A.S. to have occurred on the same day at the family home in Shepparton. The presentment, as I have said, alleged that they occurred "between 28 February 2000 and 25 April 2000". Evidence was given by A.S.'s mother that A.S. had been born on 26 July 1985, thus making A.S. 14 years of age at the time when the indecent acts were alleged to have occurred. A.S. described the first of these events as taking place in the lounge room of the house where she was sitting on the floor between the legs of the applicant, who was seated on the couch above her. The applicant, so she said, gave her a massage with some "Tiger Balm" cream, a massage which commenced upon her shoulders and back under the top that she was wearing and proceeded to her breasts inside the bra that she was wearing. She resisted and complained, and extricated herself from between his legs. Later in the evening of the same day, A.S. said that the applicant had come out to the bungalow at the rear of the house which was used by A.S. as a bedroom. Although she had secured the latch of the door to the bungalow, the applicant had managed to free the latch and gain entry. A.S. pretended to be asleep under the bedclothes. The applicant removed the covers, and again used the balm to massage her legs, from the tips of her toes to the tops of her thighs. The applicant eventually left when A.S. demonstrated no response, still pretending to be asleep. On the following day A.S. wrote a letter to her best friend (K.H.), setting out the events which had occurred, and gave that letter to K.H. at their school. K.H. gave evidence that she had received the letter; and had subsequently read it in the absence of A.S. K.H. said that A.S. was upset when she gave K.H. the letter. The letter described how the applicant had "broken into the bungalow and rubbed her up". K.H. said that she had lost the letter; but said that she had received it at a date which was about two years before May 2002.

32. The applicant gave no evidence at the trial, relying upon a record of interview which he had made with the police in May 2002. In that interview he steadfastly denied that he had sexually interfered in any way with A.S.; prepared to volunteer only that he had massaged her shoulders and ankles when she was suffering from "sporting injuries"; and then only at her request.

35. The submissions advanced by Mr Croucher on this application depended for their impact upon selected pieces of evidence which, in his submission, rendered uncertain the age of A.S. at the time of these events to the point where the jury could not be satisfied that she was under the age of 16 years when they occurred. Much of that evidence revolved around the date when the bungalow was delivered to the applicant by the Ministry of Housing, which appears to have rented out such bungalows (subject to written conditions) to families in need of extra accommodation. The applicant's wife conceded in cross-examination that -

(a) A.S.'s bungalow had been delivered on 24 February 2000. That fact had been confirmed by tendered council records;

(b) according to Ministry conditions, a person occupying such a bungalow had to be at least 16 years of age;

(c) the first occupier of the bungalow was the eldest girl, M.S., who occupied it until she left home "about July 2000";

(d) A.S. did not occupy the bungalow until "a long time after M.S.", a couple of friends having occupied it before A.S. assumed occupation.

Finally, in response to the question asked in cross-examination: "She [that is A.S.] would have been 16 when she went into the bungalow?", the girls' mother responded: "Yes." When A.S., herself, was giving evidence, she was asked how old she was in the year 2000; and responded that she was 16. This was clearly an error because she turned 15 years (on the undisputed evidence) on 26 July 2000. She, thus, remained "under the age of 16 years" until 26 July 2001.

41. In the course of his directions in respect of counts 11 and 12, the judge referred to the fact that those counts alleged that the events occurred between 28 February 2000 and 25 April 2000. He then referred to the evidence of the mother that A.S. was born on 26 July 1985; but that A.S. had said she was 16 in 2000. As his Honour said:

"Obviously that is incorrect. The evidence is that she was 15 in that year, if you make the mathematical calculations. She did not turn 16 until 26 July 2001."

His Honour went on to refer the jury to the evidence of the date of delivery of the bungalow as February 2000; and that its first occupant was M.S., who stayed in it until July 2000. His Honour then referred to the argument of the applicant's trial counsel in the face of this evidence. He said:

"Mr Holding addressed you on the basis that, really, it could not have happened as [AS] described, because she was not in the bungalow at that stage. That bungalow was [M.S.'s] province. ... That would cause you to have some doubts. You have to, of course, be satisfied that - in any event - she was under the age of 16 at the time the events occurred. Counts 11 and 12 are described as having taken place between dates. At the time of (sic) offences of this nature occurred, is not an element of the offence." [His Honour then sought to illustrate what he meant by this statement by reference to an analogy which, from this distance, seems inapposite.]

In essence, as I would understand it, his Honour was seeking to make clear to the jury that, provided they were satisfied that the acts occurred, and occurred whilst the girl was under the age of 16 years, it was not necessary to be satisfied that the dates upon which they occurred were those averred in the presentment. In this respect he referred to s.375 of the Crimes Act, which, in essence, states that an allegation in a presentment of the date upon which an offence has been committed is, at common law, not a material allegation unless the date is essential to proof of the offence. (Cf. R. v. McL.[1]) Thus his Honour continued:

"So what the Crown has to prove in relation to counts 11 and 12 is that [the applicant] committed an indecent act with A.S.; that he committed the act wilfully, and that she was under 16 years of age at the time, and that he was not married to [her]. And, of course, you have got to be satisfied, if you find the act occurred, that the act occurred in circumstances of indecency."

His Honour then went to the evidence relevant to counts 11 and 12, and, having done so, concluded by saying:

"The defence says that these incidents did not occur. Again, of course, there is no onus on [the applicant] to prove or disprove anything. The question was put to her [the complainant A.S.] that [the applicant] had told police that he only massaged [her] with Tiger Balm for sporting injuries. 'Let me suggest to you,' said Mr Holding, 'that's the only time he massaged you.' Answer: 'No, it's not.' The defence is that this incident, and the incident in the bungalow, did not occur."

His Honour then went to the applicant's responses to police in his record of interview of May 2002, in the course of which he denied that he had done any of the acts testified to by A.S. He also gave directions to the jury about the use which they could, and could not, make of the evidence of recent complaint constituted by the letter written by A.S. to her friend K.H.

52. In the course of the judge's directions exception was taken by the applicant's trial counsel, in the course of which he submitted that:

"where the dates are material to his presentment, and to instruct the jury that they are not is to completely change the nature of the Crown case at a late stage and it causes unfairness to the accused."

Counsel referred to authority in support of the proposition that the court should be slow to allow amendments to the presentment at a late stage, and said:

"To now allow this jury to speculate and put it at a different time without any consideration of the dates in the charges is grossly unfair. They should be directed that, if they cannot be satisfied beyond reasonable doubt that it occurred within the period, they should acquit."

In response, the prosecutor contended that although it was being submitted that the dates averred were "of the essence", no reason was advanced for so contending; and that it was a submission which took no account of s.375 of the Crimes Act. He further submitted that what the jury had to be satisfied of was that, at the time the acts alleged in counts 11 and 12 occurred, A.S. was "under the age of 16 years". To this, counsel for the applicant replied that:

"It cannot be left so vague where age is a crucial particular and is linked to the date of the offences, that the jury can now speculate. ... I had no opportunity to explore those issues because the Crown case was put on a particular basis. It should not be allowed to shift ground now."

60. At the end of the exchanges between counsel and the judge, his Honour said that he did not intend to re-direct the jury. He then continued his charge. He fully directed the jury as to the nature of the offences and the evidence relating to each of these counts. As might have been expected from this very experienced judge, the directions were full and seem to me to have been accurate. His Honour also made it clear to the jury that the applicant's defence to all the charges alleged against him by his three stepdaughters was one of "blanket denial". In each instance, his Honour told the jury:

"the defence is ... 'I never sexually abused M.S., A.S. or SS. I love my stepchildren, I never touched them in an improper way.' "

Finally, his Honour summarised the arguments of counsel. (This Court has not been given a copy of those addresses.) In the course of summarising the address of trial counsel for the applicant, his Honour reminded the jury of the case which the applicant had made in respect of counts 11 and 12. Inter alia, he said of trial counsel's argument:

"A.S. was not in the bungalow at the time - not living in the bungalow at the time she claimed, and you would not be satisfied beyond reasonable doubt that those alleged offences occurred."

66. I have been at some pains to trace the course of the trial and the submissions made at it, because they have a bearing on the argument which has been made in the application to this Court. It is evident from the material to which I have referred that the defence was conducted on the basis that the evidence of the witnesses, including A.S., was unable to prove to the relevant standard that the indecent acts alleged in counts 11 and 12 had occurred between the dates alleged in the presentment; and that therefore the jury should not be satisfied, to the appropriate standard, that they had occurred at all - as the applicant was asserting. It is now said by Mr Croucher that the "presentment dates" became material because of the way the evidence emerged, and the manner in which the case was conducted. Thus it is contended that, as a matter of fairness, the Crown became, as it were, bound to the dates averred in the presentment and, as a consequence, the verdicts on counts 11 and 12 are unsafe and unsupportable.

69. This submission would be good if its major premise could be made good. However, in my opinion, it cannot. The case made by the Crown was that the applicant had committed two indecent acts upon A.S. on the same day at the family home (including the bungalow) whilst A.S. was under the age of 16 years. The dates of 28 February and 25 April averred in the presentment were not material to proof of those offences, provided that the jury was satisfied that they occurred before July 2001, when A.S. attained the age of 16 years. It thus became immaterial - for the purposes of proof of these offences - to demonstrate that they occurred between February and April 2000. This was clearly the view of the trial judge; and in my view he was correct.

72. There has, however, been a further matter raised on this application - and, indeed, at the forefront of this application; and that is that it was not open on the evidence for the jury to conclude beyond reasonable doubt that the complainant was under the age of 16 years when the acts alleged in counts 11 and 12 occurred. This, as I have already said, was not an issue raised (at least directly) at the trial. Certainly it is not reflected in his Honour's directions which suggest that the applicant was contending that the inability of A.S. to prove that the offending had occurred within the dates alleged in the presentment should lead the jury to have a reasonable doubt that they had occurred at all. That indeed was what the applicant had always asserted. It was never directly put by the applicant's trial counsel to A.S. that the events occurred after she had attained the age of 16 years. That, it seems to me, was for good reason, because the applicant's alleged offending against his stepdaughter S.S. had become known to the police by May 2001; that is, before the date when A.S. had reached her 16th birthday. The fact that the police had already questioned the applicant in May 2001 about his relationship with his stepdaughters no doubt explains the coyness of applicant's trial counsel in failing to directly assert to A.S. that the events alleged in counts 11 and 12 had occurred at a time after her 16th birthday in July 2001. In any event, the evidence of K.H. that A.S. had complained to her on a date which, on any view, must have been before July 2001 put paid to any proposition that the events alleged in counts 11 and 12 had occurred after that date. It is true, as Mr Croucher submitted, that evidence of recent complaint cannot be used to prove the truth of the facts contained in the complaint. But that is not to say that the date of the making of the complaint is not in evidence and cannot be used for all purposes. It was well open to the jury upon the whole of the evidence before them to conclude beyond reasonable doubt that the events alleged in counts 11 and 12 had occurred on a date before the complainant attained the age of 16 years, as the judge had directed they could. It may be that there were aspects of the evidence of A.S.'s mother which were vague, particularly those relating to the fixing of dates by reference to the bungalow. A.S.'s own evidence that she was "16 years" in 2000 was so manifestly incorrect that it was of no consequence, as the judge indicated to the jury. Much was made on behalf of the applicant during the course of this application that the mother's evidence had clouded the issue to the point where the jury, paying proper attention to it, could not reasonably have convicted on counts 11 and 12. In my view, a review of the evidence will not sustain that submission. The overwhelming thrust of the whole of the evidence compelled, as it seems to me, the finding implicit in the jury's verdicts that the relevant events occurred before A.S. attained 16 years of age. In those circumstances I cannot accept the applicant's contention that the verdicts on counts 11 and 12 were unsafe or otherwise not open on the evidence. I would accordingly reject the grounds of appeal and the application for leave to appeal against conviction. That conclusion also disposes of the applicant's contention that the Court necessarily must re-exercise its sentencing discretion pursuant to s.569(1) of the Crimes Act.

76. It is contended on behalf of the applicant that, in any event, this Court should conclude that the sentence imposed by the learned judge on count 12 was vitiated by specific error and that, as a consequence, the sentencing discretion is thereby re-opened. In the course of his sentencing disposition the learned judge said that count 12 "involved [the applicant] gaining entry to the bungalow in the manner [A.S.] had described, and again massaging the young girl's breasts". This was undoubtedly a misdescription of the evidence on count 12 which was, in fact, that the applicant had entered the bungalow and massaged the complainant's legs.

79. It can be accepted that the judge was in error in describing the events which were the subject of count 12. It is said that this was a material sentencing error because it is a less serious intrusion to a girl's bodily integrity to massage her legs than to massage her breasts. I do not agree in the circumstances of this case. This offence occurred when the applicant broke into the young girl's security against her wishes for the purposes of his own sexual gratification and after she had indicated to him that his advances were unwelcome. The nature of the violation of her bodily integrity was, for sentencing purposes, not lessened as a consequence of his Honour's misdescription of it. The jury's verdict that he was guilty of the indecent act reflects that. For my own part, I am far from satisfied that his Honour's misdescription of the act has vitiated his sentencing discretion. In any event, I would not - for myself - be inclined to impose any sentence other than the two years which his Honour imposed on that count. I do not regard the circumstances of that offending as less serious than the offending in the lounge room. Rather, the circumstances of the offending, in my view, were more serious than the offending alleged in count 11.

82. Nor do I regard the sentence of two years imposed on count 16 (the touching of the breasts and legs of S.S.) as manifestly excessive, as was submitted on behalf of the applicant. S.S. was the youngest of the applicant's stepdaughters and his Honour was entitled to regard the offending against her as a gross breach of her trust in him.

85. 19 Finally, it was submitted that the total effective sentence of 10½ years with a non-parole period of eight years was manifestly excessive. It is contended that the manifestly excessive sentence has been produced by the substantial amounts of cumulation; namely, six months of the sentences on each of counts 1, 12 and 16 (indecent acts against respectively M.S., A.S. and S.S.) and twelve months on each of counts 3, 5, 6, 8 and 10 (incest of M.S.) upon each other and the sentence of four years on count 4 (incest of M.S.) It is submitted that the total effective sentence thus produced can be seen at a glance to be manifestly excessive against the background of the age and health of the applicant, his lack of relevant prior convictions, his own history of sexual abuse, his limited intelligence and stable work record. Mr Croucher concedes that the contention that the sentences are manifestly excessive cannot admit of much argument. He simply asserts that the total effective sentence and the non-parole period are what he describes as "massive".

88. I am afraid that I am quite unable to agree with that submission. The crime of incest, as this Court has constantly said, is a particularly vile crime. The victim impact statement of M.S. is eloquent testimony to the effect which it can have on a young girl who is at the mercy of the power and influence of an incestuous stepfather. The awfulness of the applicant's offending has been demonstrated by the fact that he has been proved to have serially violated each of his stepdaughters as and when they have become available to him; and by the fact that no remorse has been shown, by putting each of them to their proof of his sexual violation of them. I regard the individual sentences imposed by his Honour, particularly those for incest, as modest in the extreme. I am far from satisfied that the orders for cumulation have produced a total effective sentence which is disproportionate to the gravity of the offending or which can be said to be manifestly excessive. For the same reasons I do not regard the non-parole period which was fixed by his Honour as manifestly excessive. I would reject the application for leave to appeal against the sentences imposed.

92. I agree. In particular, I consider that the sentences with respect to the counts of incest were modest, but, in so far as they might have been increased, there would have to have been some lesser cumulation in the case of count 3 and some greater concurrency in the case of the other counts. In the result, the total effective sentence and the other aspects of the sentence were well within range.

96. For the reasons given by the learned President, I agree that these applications for leave to appeal against conviction and sentence should be dismissed.

The applications for leave to appeal against conviction and sentence are dismissed.

[1] [1998] VSCA 61; [1999] 1 V.R. 746 per Batt, J.A. at [16].