R v Pope [2000] VSCA 108

Court of Appeal (Vic)|2000-06-15|Before: PHILLIPS, C.J., CALLAWAY and BATT, JJ.A.

The applicant, who is now aged 46, was presented in the County Court at Shepparton on one count of aggravated burglary (count 1) and two counts of attempted rape (counts 2 and 3). He pleaded guilty to the first count of attempted rape. Having been found guilty on the other two counts on the presentment, the applicant admitted 13 previous convictions from five court appearances. Only one was for a sexual offence, assault with intent to rape, for which he was released on a bond in September 1984.[1] His last court appearance was in August 1989. After hearing a plea for leniency on his behalf the learned trial judge sentenced the applicant to eight years' imprisonment on count 1 and to six years' imprisonment on each of counts 2 and 3. His Honour directed that three years of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 11 years' imprisonment. A non-parole period of nine years was fixed and a declaration made regarding pre-sentence detention. The applicant seeks leave to appeal against both conviction and sentence.

There were 11 lettered grounds of appeal against conviction, of which four were formally abandoned. I do not think it necessary to set out the other grounds. As the argument developed, it became clear that there were three substantive complaints: first, that the learned judge's directions on aggravated burglary were incomplete; secondly, that his Honour should have warned the jury against propensity reasoning; and, thirdly, that the jury were not instructed as to the elements of an attempt. It was also submitted that the verdict on count 1 was unsafe in the limited sense that the charge did not grapple with the real issues in the case and the evidence relating to them. That argument was not unrelated to the other submissions and would lead at most to a retrial, not a judgment and verdict of acquittal. The submission does not reflect the way in which trial counsel perceived the charge, for no relevant exception was taken. See . In my opinion the application for leave to appeal against conviction stands or falls with the other submissions.

Before turning to those submissions, I shall say something about the circumstances of the offences. There were differences in the accounts given by the complainant and by the applicant but it is the former which, at least for the most part, the jury evidently accepted.

The complainant was a widow aged 72 living in Benalla. The applicant's parents were her next-door neighbours, who had moved in about a year before. The complainant knew them, but not well, and she also knew the applicant. At about 3 o'clock on the afternoon of 14th September 1998 she responded to a knock on her back door, where she found the applicant in a distressed condition, shaking and sweating. His father was terminally ill and the complainant thought that maybe he had died. The applicant said, "I have a problem", so she invited him into the house to talk about it.

The complainant said that she turned to walk back towards her kitchen and, as she was entering it and before she was able to sit down, the applicant grabbed her. She felt an arm come around her neck and something metal at her throat. It was a pocket-knife[4], which the applicant lowered, allowing her to turn, but kept close to her. He said, "Bedroom, to the bedroom or I will get more angry." The complainant said that he had been in the house only "a couple of seconds" and that those were his first words. The complainant backed away but the applicant, holding the knife in front of him, ushered her into the bedroom, where he ordered her to undress. She could not remember the details of what clothes were taken off or how, but she did remember sitting on the edge of the bed at least partially naked and, when the applicant dropped his trousers, noticing that his penis was flaccid. She thought he wanted her to fellate him and refused.

She then testified that he "threw himself" on her, trying to penetrate her vagina with his penis but not succeeding, and that he stood up and then tried again. One of the issues at the trial was whether there was one incident of attempted rape or two, but the jury were entitled to be satisfied that there were two incidents closely related in time.

The applicant then told the complainant to get dressed and, while she did so, grabbed a clothes iron from the ironing board and struck himself three times on the head. He was very agitated. He said in cross-examination that, as he did so, he kept repeating that he was a silly idiot. The complainant tried to calm the applicant down by making a cup of coffee. She was shaking and he was shaking and sweating. He drank the coffee and returned to his house. After about 15 minutes the complainant telephoned a friend, who came over in five or ten minutes. She told him what had happened and he called the police. The applicant conceded that, in the course of the ensuing interview, he was "continually lying". He said that that was because one of the complainant's grand-daughters was married to a policeman in Melbourne and another of her grandchildren was a policeman at Wodonga and he was afraid of being beaten up.

The applicant claimed that it was not until the complainant was seated in a chair in the kitchen that he produced the knife. He also said that he asked the complainant to stab him with it because he was going to do something he should not do and that the complainant took hold of the knife but he retrieved it from her. The applicant's account of the incidents that followed was also different in a number of respects. In particular, although he admitted an attempted vaginal rape, he said that there was no question of fellatio and that there was only one attempt to rape the victim. He claimed that he acted on the spur of the moment, saying, "My mind snapped. I don't know why."

It will be convenient to deal with the three topics identified in [3] in reverse order. We did not call upon counsel for the respondent in relation to the second or third.

His Honour charged the jury as follows with respect to count 3:

"Count 3 is the attempted rape. As rape requires proof of penetration of, in this case, a victim's vagina by the accused's penis, lack of consent by the victim and knowledge of the accused that she is not consenting or might not be consenting, so attempting rape requires the performance of an act or series of acts that would have constituted the offence of rape, had they not been interrupted, for example, by rescue or some other cause. In this case the cause was the inability of the accused to obtain an erection. The legal ingredients in the case are not greatly worrying, for the accused has admitted he attempted to rape [the complainant]. The issue is did he attempt to do so once or twice. The defence has it that there was really only one continuous episode from the time that [the complainant] was forced on to the bed until the accused finally got off it and that it is a nonsense to say there were two attempted rapes. There was only one and to it, says the defence, the accused has pleaded guilty. The Crown, which carries the burden of proof, asserts that there were two discrete attempts, with a clear intervening episode. It is for you to decide whether the Crown has proved that second attempt beyond reasonable doubt."

The complaint is that there was no reference to any of the matters mentioned in s.321N(1) or (2) of the Crimes Act 1958. The first of those sub-sections provides that a person is not guilty of attempting to commit an offence unless his conduct is more than merely preparatory to the commission of the offence and is immediately and not remotely connected with it. The second sub-section provides that the person must intend that the offence the subject of the attempt be committed and also intend or believe that any fact or circumstance the existence of which is an element of the offence will exist when the offence takes place.

The short answer to the submission that the legal concept of an attempt should have been explained is that a judge should tell the jury only so much of the law as they need. His Honour correctly said that the sole issue between the Crown and the accused in relation to count 3 was whether there were two attempts or one. The jury would not have been assisted by an exposition of s.321N. This was a classic case for the application of Sir Leo Cussen's great guiding rule, particularly having regard to the example that Dixon, Williams, Webb, Fullagar and Kitto, JJ. gave in Alford v. Magee[5]. Their Honours said:

"And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny. It may be that the issues in a civil case tend, generally speaking, to be more complex than in a criminal case. But the same principle is applicable, and looking at the matter from a practical point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen's great guiding rule."[6]

It was submitted that the applicant's plea of guilty to count 2 required a propensity warning to ensure that that plea was not improperly used by the jury with respect to count 1 or count 3. The dangers to be averted were that the jury might reason from the attempted rape that he admitted that the applicant was the kind of person who was likely to have had an intent to rape when he entered the premises and likely to commit the other attempted rape. In my opinion there was no danger at all of the second kind, having regard to the facts of the case and the single issue between the parties in relation to count 3.

There was similarly only one issue in relation to count 1. As defence counsel said in his closing address to the jury:

"There are two things that are in dispute in this trial, and that is, one, that there is a reasonable possibility that Mr Pope formed his intention to rape [the complainant] in the house."

Counsel said that the other issue was whether there was a reasonable possibility that, rather than a second attempted rape, there was "just one continuous episode".

It may be accepted that the jury would have reached their conclusion on count 1, in part, by reasoning backwards from the attempted rapes, inferring intention from what later happened. They would also have taken into account the applicant's admissions that he was sexually attracted to the complainant and the following answers at the end of his cross-examination:

"So you went around there with the intention of having sex, is that right?---No, sir. Hopeful of having sex, were you?---Yes, sir, maybe. You produced the knife as soon as she virtually got into the house, didn't you?---Yes, sir, I did, yes. At no stage, leading up to any sexual activity, did you talk about what you referred to as your problem. Is that right?---That's correct. You used it as an excuse to get in?---I suppose you could say it was an excuse, I'm not sure. Sorry?---You could say it was an excuse."

None of that would have involved propensity reasoning from the plea of guilty. There was no danger that the jury would use the plea in any other way and they would not have understood a direction that, even though the foregoing chain of reasoning was permissible, they must not reason that the applicant was the kind of person who was likely to have had an intent to rape at the time of entry.

Moreover, before any evidence was called, the judge said this:

"The Crown undertakes to prove the accusation it brings. The Crown is required to prove its case beyond reasonable doubt. If it succeeds, then you will convict, if it fails you will acquit, but your verdict must be the result of a dispassionate analysis of the facts as they unfold before you. There is another matter in that context, you have already heard the accused man plead guilty to one count of attempted rape. It would be very easy for you to say 'What is he bothering us about for in relation to the other two,' and because you have heard him plead guilty to one count assume he is guilty as to the others. That would be quite wrong. The law is that the accused man is presumed as a matter of law to be innocent of the crimes with which he is charged and to which he has pleaded not guilty. The Crown must prove his guilt in relation to those two matters and you have to be satisfied of his guilt in relation to those two matters."

A separate consideration direction[7] was later given in relation to counts 1 and 3. His Honour was not asked to give a propensity warning and no relevant exception was taken. This is not a case like BRS v. R.[8] where such a warning was necessary.

Section 77(1)(a) of the Crimes Act provides:

"(1) A person is guilty of aggravated burglary if he or she commits a

burglary and - (a) at the time has with him or her any firearm or imitation

firearm, any offensive weapon or any explosive or imitation explosive;".

The definition of "offensive weapon", in sub-s.(1A), reads:

"'offensive weapon' means any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose."

There is an obvious affinity between those provisions and the provisions of s.75A relating to armed robbery that were discussed in R. v. Nguyen.[9]

The principal argument advanced before us was that his Honour should have told the jury that they had to be satisfied that the applicant intended to use the pocket-knife in an offensive way[10] when he entered the premises. It was common ground that a knife of that kind is not an offensive weapon in itself[11], so that there had to be an intention of the kind referred to in the second part of the definition of "offensive weapon" and that intention had to exist at the time of entry. That would appear to follow from the definition and the words "at the time" in s.77(1)(a). If the applicant entered the premises with an intent to rape, but not yet with an intention to use the knife, he may have been guilty of burglary but not aggravated burglary.

Counsel referred to the following passage in the charge:

"But in this case, the Crown goes a step further and alleges that the accused is guilty not only of burglary but of aggravated burglary. The element of aggravation alleged is that contained in the last two lines of the presentment which you have before you, Count 1, that is that at the time of entering the house the accused man had with him an offensive weapon, namely a knife. That knife is alleged to be an offensive weapon, because the accused man threatened [the complainant] with it. So in order to prove the element of aggravation, the Crown must prove beyond reasonable doubt two further things - that the accused man threatened [the complainant] with the knife and that he had the knife with him at the time that he entered the house. You may well think that the kernel of the problem so far as Count 1 is concerned is not whether the accused man had an offensive weapon, nor whether he threatened [the complainant] with it. The kernel of the problem is did he, at the time that he entered her house, intend to rape her?" (Emphasis added.)

The words in italics are plainly not an accurate statement of the element of aggravation, mainly because they make no reference to an intention with respect to the knife at the time of entry.

I was for a time attracted by that argument, putting to one side whether the proviso to s.568(1) of the Crimes Act might be applicable; but, on reflection, I think it fails for the same reason as the contention concerning the elements of attempt taken in conjunction with the evidence. The only issue on count 1 was, as we have seen, whether there was a reasonable possibility that the applicant formed his intention to rape the complainant after he had entered the house. Counsel may have made a forensic decision that, if he could not raise a doubt in the jury's minds on that issue, there was no point in suggesting that the applicant may have intended to commit rape but only later decided to use the knife. Such a decision would be readily understandable when the complainant's version of events is recalled. She said that she felt the knife against her throat when he had been in the house only "a couple of seconds". Although he gave a different account, there was nothing in the applicant's own evidence to disjoin the use of the knife from the attempted rapes. He said that, almost as soon as the complainant had sat down in the kitchen, he produced the knife_._[12]

Given the issue and the state of the evidence, there was no practical need for the judge to direct the jury to consider whether the knife was an "offensive weapon" at the time the applicant entered the premises even if they were satisfied that he did so with an intent to rape and that he later threatened the complainant with the knife[13], nor is there any need, on these facts, to consider cases like Pemble v. R.[14] and R. v. Stokes and Difford[15].

If I am wrong about that, for I admit to some unease about the way the element of aggravation was described, I would unhesitatingly apply the proviso. The omission (or, if you will, misdirection) did not deprive the applicant of a real chance of acquittal and did not go to the root of the trial.[16]

The subsidiary argument was that his Honour should have directed the jury that they had to be satisfied that the applicant intended to enter the premises as a trespasser.[17] It was said not to be sufficient for them to be satisfied that he intended to commit rape, notwithstanding that that was obviously foreign to the purpose for which he had been invited in. Counsel relied in particular on the judgment of Dawson, J. in Barker v. R.[18] as having drawn a distinction between an intention to steal and an intention to trespass and sought to apply that distinction by analogy. Whatever might be the position in other cases, as to which I say nothing, no such distinction had to be drawn here. The issues were appropriately confined and the charge reflected them.

The true significance of Barker's Case, for present purposes, lies in a passage in the joint judgment of Brennan and Deane, JJ. After referring to the common ground that had emerged in the course of the trial and setting out a portion of the charge their Honours continued[19]:

"If the above direction, to which no objection was taken at the trial, is viewed out of the context of the manner in which the trial had been conducted and the essential issue which had emerged between the Crown and the applicant, it would be open to criticism: it contains no specific application of the requirement of mens rea to the element of entry; it does not, in terms, require the jury to consider the scope of the permission to enter in order to determine whether the actual entry was outside it. The learned judge's summing up to the jury cannot, however, properly be read independently of the context of the conduct of the trial. As the English Court of Criminal Appeal (Lord Alverstone L.C.J., Darling, Phillimore, Bray and A.T. Lawrence JJ.) observed in R. v. Stoddart, '[e]very summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively' (see, also, R. v. Nina Vassileva; R. v. Murray; Reg. v. Melville; Reg. v. Deen). The charge plainly reflects the issues raised by the conduct of the trial." (Footnotes omitted.)

They concluded that, for those reasons, appellate intervention was not warranted.[20] Similar reasoning applies here and, accordingly, the application for leave to appeal against conviction fails.

There were eight grounds of appeal against sentence but again it is unnecessary to set them all out. Under cover of one of them it was argued that the learned judge erred in the length of the non-parole period he fixed, having regard to the head sentence and all the relevant circumstances of the offence and the offender. In my respectful opinion, that ground should be upheld.

It is clear from the sentencing remarks and from the plea that the primary purpose for which a sentence of 11 years' imprisonment was imposed was the protection of the community. His Honour also perceived "a very real need to deter [the applicant] from re-offending". General deterrence had an impact on the sentence, but he acknowledged that that impact was diminished by "aspects of [the applicant's] personality". At the time of the offences the applicant was taking medication for depression and it was clear that he had significant, ongoing psychological problems, in particular an incapacity fully to distinguish between fantasy and reality. There were, however, no indications of any major psychiatric illness such as bipolar affective disorder.

Against that background, as the learned Chief Justice observed in the course of the argument, a non-parole period of nine years invites scrutiny. If the sentence of 11 years' imprisonment was imposed primarily to protect the community and the impact of general deterrence was moderated to take account of the applicant's psychological deficit, one would have expected eligibility for parole to come at an earlier stage in service of the sentence. The Adult Parole Board would, in the nature of things, be better able to assess the applicant's progress and any danger he still posed to the community in several years' time. No reasons were given for the non-parole period that his Honour fixed.[21]

In R. v. VZ[22] the Court as presently constituted reviewed some of the principles applicable to non-parole periods. I do not repeat what we said on that occasion. I simply mention two salient points. First, we referred to what Winneke, P. called in R. v. Mulvale[23] the need for

"discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision."

Secondly, we said that no mechanistic or formulaic approach could be taken to the fixing of a non-parole period. Because it is the minimum time that the judge determines justice requires that the prisoner serve having regard to all the circumstances[24], it cannot be fixed automatically by taking two years, or one-third or one-quarter, off the head sentence.[25] All the relevant factors have to be taken into account and they may be many and varied.

There is nothing about the facts of the present case to explain why the judge was led to think that justice required the applicant to serve at least nine years of an 11 year sentence before becoming eligible for parole. As I have endeavoured to explain, the reasons he gave for imposing the head sentence militated against that conclusion. I am therefore persuaded that error is shown. The non-parole period being reopened, so too is the head sentence.[26] Unless this Court thinks that no different sentences or direction for cumulation should be passed and given, we are obliged to re-sentence the applicant.

There is no gainsaying the seriousness of the offences. It was a circumstance of aggravation that the applicant was a neighbour whom his elderly victim was trying to help. The protection of the community is the principal purpose in sentencing the applicant on count 3[27] and important in any event given the psychological report to which the judge referred. As his Honour said, specific deterrence is relevant although general deterrence may be sensibly moderated. I agree with him that the applicant's plea of guilty to the first count of attempted rape should, in the rather artificial circumstances of this case, be taken into account in relation to both counts. The effect of that plea was not diminished by his going to trial on count 3. I would affirm the sentences imposed on counts 2 and 3. One must be careful not to double count the aggravated burglary with the two attempted rapes.[28] Notwithstanding the seriousness of that offence, the maximum penalty for which was greater than that for the other two[29], I would impose a sentence of six years' imprisonment on count 1 as well.

I also agree with his Honour that there should be a measure of cumulation. I would again give a direction having the effect that three years of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1.[30] That makes a total effective sentence of nine years' imprisonment. Taking into account the gravity of the offences and the purposes for which that sentence is imposed, which are substantially the same as those that commended themselves to the judge, and the applicant's psychological deficit, I would fix a non-parole period of six years.

[1] Upon breach of the bond he was sentenced to six months' imprisonment. The offence bore a resemblance to the instant offences in that he had ordered the victim to undress under the threat of a knife.

[2] I did not understand the ground relating to the alleged unsafety of the verdict on count 3 to be pressed. In any event, for the reasons I am about to give, I would not uphold it.

[4] Not a child's pocket-knife, but a folding knife such as a fisherman would use.

[6] See also R. v. Schmahl [1965] VicRp 95; [1965] V.R. 745 at 747; R. v. Jellard [1970] VicRp 98; [1970] V.R. 802 at 804 and Kaighin v. R. (1990) 1 W.A.R. 390 at 396-7.

[7] It was suggested that the jury might have understood this direction as a comment, and probably the passage set out above as well, but I do not think that is so when they are read in context: cf. R. v. Mazzolini [1999] VSCA 150. Moreover my conclusion does not depend on those directions.

[9] [1997] 1 V.R. 551 especially at 555. A person is guilty of armed robbery if he commits a robbery and at the time has with him (among other things) an offensive weapon within the meaning of s.77(1).

[11] Compare Wilson v. Kuhl [1979] VicRp 34; [1979] V.R. 315 at 320-322.

13] The threat is not part of the element of aggravation but the intent may be inferred from it. In this case the inference was inevitable if both adverse findings were made.

[16] Compare Krakouer v. R. [1998] HCA 43; (1998) 194 C.L.R. 202 at [23] and fn. 23.

[17] Not, of course, that he knew the law but that he "knew or was reckless as to the existence of the facts which made him a trespasser": see Barker v. R. [1983] HCA 18; (1983) 153 C.L.R. 338 at 366.

[18] At 371, 373, 374-375. Reference was also made to 348 per Mason, C.J.

[20] See R. v. Stoddart (1909) 2 Cr.App.R. 217 at 245-246. Dawson, J. expressed a different view at 375.

[21] Compare R. v. Krasnov and Shlakht (1995) 82 A.Crim.R. 92 at 99.

[22] [1998] VSCA 32 especially [3], [12-15], [18], [22].

[23] Unreported, Court of Appeal, 20th February 1996 at 11.

[24] See Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at p.629; Deakin v. R. [1984] HCA 31; (1984) 58 A.L.J.R. 367 and Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at pp.531, 536 and 538.

[25] See also R. v. Saunders [2000] VSCA 58 at [28].

[26] This is not a case like R. v. Sener [1998] 3 V.R. 749. See the authorities discussed at 752-753 and 754-755. The reference to Attorney-General v. Kortum (unreported, Court of Criminal Appeal, 23rd September 1977) should be to 4-5, not 5-6.

[28] Compare Director of Public Prosecutions v. Adajian [1999] VSCA 105 at [29].

[29] 25 years' and 20 years' imprisonment respectively.

[30] The wording of the direction should reflect s.6E of the Sentencing Act and the fact that the applicant was sentenced on count 3 as a serious sexual offender should be entered in the records of the court pursuant to s.6F.

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