R v QIN; QIN v REGINA [2008] NSWCCA 189 | Case summary

8 August 2008 REGINA v David Guan Liang QIN David Guan Liang QIN v REGINA Judgment 1 McCLELLAN CJ at CL: The Court is in a position to give judgment and I will ask Grove J to give the first judgment. 2 GROVE J: Before the Court is an appeal against conviction by Qin Guan Liang (David) and an appeal by the Crown alleging the manifest inadequacy of the sentence received by him following conviction. To avoid possible confusion I will refer to him as the appellant throughout. 3 The appellant was presented for trial upon an indictment containing four counts, one of which was pleaded in the alternative. Count 1 charged indecent assault and count 2 charged sexual intercourse without consent and count 3 charged indecent assault in the alternative to count 2 and count 4 also charged indecent assault. The offences were all alleged to have occurred on the one occasion on 24 March 2007. This was a Saturday and a State election was being held on that day. 4 A single ground of appeal against conviction is advanced asserting that verdicts of guilty on counts 1 and 2 are unreasonable and cannot be supported having regard to the evidence and a verdict of not guilty on count 4. 5 The complainant (HA) resided in a flat with her boyfriend (GY) and a flatmate (CB). Opposite the flat was an establishment entitled Professional Chinese Acupressure Massage Clinic operated by a Ms Hua Ai (Grace). The appellant was in a relationship with her, held qualifications as a masseur and worked as such in the clinic from time to time. 6 HA was an actor and also participated in the management of a costume shop. In October 2006 she was engaged in cabaret performance which involved a lot of dance and she experienced resultant soreness. She noticed that the clinic had opened and she decided to try their advertised services and "check it out for future use". The first use was a full body massage administered by Grace. She found this satisfactory and she returned on a number of occasions for various treatments. Some were administered by Grace and others by the appellant. 7 On 24 March 2007 she attended to fulfil an appointment which she had previously made, the payment for which was intended to be made through a gift voucher which had been passed to her. As observed by senior counsel for the appellant there was a good deal of evidence relating to timing, voting, vouchers, the type of massage intended to be performed and visits to the clinic by CB after HA had left, but inconsistencies and disputes about these matters are peripheral and do not bear upon the question whether the convictions on counts 1 and 2 and the acquittal on count 4 can be reconciled. I agree with that observation and it is unnecessary to explore those issues. 8 HA had given evidence at a previous trial which was not completed. As authorized by s 306I of the Criminal Procedure Act 1986, her earlier evidence was tendered in the subject trial. An edited video recording of the evidence was played to the jury and they were provided with similarly edited transcript to be used during the playing of the video. The jury did not retain either the video or the transcript as exhibits. HA was also called vive voce for further examination in chief and cross examination to a limited extent in accordance with a ruling by the learned trial judge. No complaint is made about the adoption of these procedures. 9 When HA arrived at the clinic both the appellant and Grace were present. In the past it had been her practice to strip to her bra and pants for treatment which was administered as she lay prone on a massage table which had a "face hole" and was situated within a curtained cubicle. If needed, her bra could be undone whilst she was in the forward position and it was not required that she "ever sort of sit up and be naked". 10 On this occasion, as had happened previously, there was some banter between HA and Grace about modesty. HA said that she felt comfortable with the appellant and Grace as a result of their earlier treatments and she therefore stripped to her underpants and lay on the table. She was aware that thereafter she would, as a matter of routine, be covered with a sheet. 11 The treatment was commenced and administered by the appellant. After about 10 minutes Grace called out that she was going on a bus to the Town Hall in order to cast a vote in the election and she departed. The appellant continued with the massage. 12 The evidence of HA describing what happened thereafter was, not surprisingly, discursive, but extracts identify the material available to be relied upon by the jury in respect of the counts. 13 She testified that she realized the modesty sheet must have come off. She became conscious that the appellant was kneading her bottom cheek and, although she was disturbed by this, she thought she was being "paranoid" and responded to his enquiry that she was fine. She spoke of sensing a fluid motion and that she "felt him getting closer ….to my bottom crack and on the third time he actually went inside and on the fourth time he actually passed over my anus …". 14 What happened thereafter she described in these words: "Then he pulled my underpants down to the bottom part of my bottom so that my entire bottom was exposed. And at this point I'm feeling completely exposed, this had never happened before. And he started with each hand, like one on each bottom cheek again massaging. Then he was doing it at the same time and he kind of stopped when his fingers were really close again to my anus or inside my bottom crack and he kind of stopped and then he pulled them - like pulled my bottom cheeks part and kind of held it for two or three seconds then started massaging again. And that happened, I think maybe three times." 15 HA said that she felt completely exposed and like someone was "taking advantage" of her but she "couldn't do anything about it" and she let him take her underpants off. She was then asked these questions and gave these answers: "Q. Had your underpants ever been taken off on any of your previous massages? A. No, no. Q. While I'm asking that question had anything like this that you've described so far in relation to touching in your bottom crack near your anus-- A. On top of my anus, over my anus. Q. ---occurred, on top of your anus, had any of that occurred on previous occasions? A. No. Q. When you say on top of or over your anus, what do you mean? A. He didn't penetrate into it because it was a fluid motion but his fingers went over my anus." 16 This evidence was available to the jury in support of the allegation in count 1. She was then asked about the continuation of the treatment. She described the appellant massaging to the point of her inner thigh "just before my vagina he again paused and kind of opened me up and paused there for two or three seconds and then continued on the same massage path. And he did this two or three times." She was asked what happened then and she replied: "A. And then he put his hand again on my left bottom cheek, he's - I presume he's left handed, I don't know. One hand was there, the other hand was still sort of doing massage and touch and he went from my inner thigh up past my vagina, past my - on the inside of my bottom cheek up to kind of just above my bottom on the coccyx area and then back down again. That was the first time. The second time he did it he went up and I felt him touch my pubic hair on the outside of my vagina and he sort of got closer onto to my anus as well and then he came back again. And the third and fourth time he touched the inside of my vagina flaps, he touched my clitoris, my labia, he went right up to where my bottom is, went up through my bottom crack over my anus up to the top bit and came back down again." 17 That evidence was available to support the conviction on count 2. In the light of the finding of guilt on that count, no verdict was taken on the alternative count 3. 18 HA further testified in relation to count 4 and I extract the following from the transcript. The emphases are added. "Q. What's the next thing you remember happening after that third and fourth occasion that his hand went in the way you've described? A. Yep, then he momentarily stopped. I still felt him next to the table, I still felt him quite close but he stopped and so then I started thinking right it's over it's over you can get up and go, and then he put either hand - one hand on each side of my bottom and kind of tilted my pelvis a little bit forward, and the next thing I felt was like a point, a pointy thing at my vagina and I immediately thought that I was about to get raped and I thought it was a penis. The next second though I felt like a pressure in the space of my inner thighs and my vagina in that space between your legs, and I felt like a full pressure and I realised it was his face, and I felt his kind of cheeks and his forehead in that whole area in between my legs. Q. What made you think it was a person's first of all skin as opposed to something else? A. Because that area was so full of fluid and cream and stuff it kind of stuck, and first he's got the sort of face that I just felt his cheeks, kind of chubby cheeks, just against my thighs, and the shape of a face was in there. Q. Could you tell anything in terms of sensation as to whether what was touching you felt cold or hot or in between, or you're not able to say? A. No because the second that my subconscious kind of worked out what that pressure was in between my legs that was like the tipping point for me and that was the moment where thank goodness something inside of me just snapped, and it broke me out of that kind of paralysis and I got up and the next thing I knew I was at the end of the table and I was in like a little ball and I covered my breasts up and my privates up and the modesty sheet thing was still there because - all I know is that I had it and I was kind of using that to cover me with this hand, and I had this hand out in like a defensive thing, and that was - and I - Q. You're indicating over your left arm with your elbow bent holding your fingers -- A. Out like -- Q. --palm out splayed? A. Yeah, just - and that was the point where I kind of took the control back, and I, and he knew that too. It was the moment when he didn't have the control any more. Q. Where was David the accused at that point when you jumped into the ball, curled into the ball? A. So after that happened it was pretty quick that I got up and I still had my kind of back to him but I sensed, I don't know whether he was on the table or he was still next to me, I don't know what happened when his face was there , but he kind of came back to the side again, and that's the next thing I know is that he was right at the side of my again…." 19 HA gave evidence that following this the appellant made certain inculpatory statements, she donned some of her clothing and fled across the road to her flat where she complained to CB. She also spoke by telephone to others including GY who was out of the city at the time but returned after speaking to her and the happening was reported to police. In the meantime Grace had sent a text message which HA ignored. It is not necessary to advert to these matters for the purpose of determining the ground of appeal. 20 There is ample authority directing the approach to be taken when such a ground is advanced. In MacKenzie v The Queen (1996) 190 CLR 348 in the joint judgment of Gaudron, Gummow and Kirby JJ it was stated (at page 367): "Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. R v Wilkinson [1970] Crim LR 176. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury Hayes v The Queen (1973) 47 ALJR 603 at 604-605. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40." 21 In MFA v The Queen (2002) 213 CLR 606 the High Court of Australia put an end to some debate about the principle delineated in Jones v The Queen (1997) 191 CLR 439 and the correctness of an understanding of it as revealed in R v Markuleski (2001) 52 NSWLR 82. In the course of so doing it was observed (Gleeson CJ, Hayne and Callinan JJ) at page 617: "Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasized in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, ever juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others." 22 The appellant's submission was that the verdicts do not pass the test of logic and reasonableness as contemplated in MacKenzie. In respect of all counts convictions could only follow an acceptance of the uncorroborated evidence of the complainant and it was submitted that the most likely explanation for the mixed verdicts was an impermissible compromise. Reference was made to the comment of the trial judge in his remarks on sentence: "The jury was given a direction in accordance with the decision of the Court of Criminal Appeal in Markuleski , but nevertheless rejected the complainant's evidence in respect of the third charge. It is difficult to see how they could have done this while accepting the evidence in respect of the first two charges, as the complainant's credit was the main issue in respect of all three charges." 23 His Honour made some further observations about the timing of the trial and the imminent holiday (the jury retired and returned their verdict on 19 December 2007) and the possible motives and qualities of witnesses which led him to conclude that there was "a possibility that the verdict may be unsafe and unsatisfactory". 24 I would respectfully disagree with that conclusion and I am persuaded that an analysis comfortably demonstrates that there was a rational basis for the jury to discriminate and return a verdict of not guilty on count 4 whilst being satisfied to the necessary standard upon AH's evidence in support of counts 1 and 2. 25 As the extracts of testimony which I have recited show, the touchings which were elemental to counts 1 and 2 were unequivocally described by the complainant. In contrast, her description of the perceptions giving rise to the allegations comprehended in count 4 lacked the same positivity. As can be seen in the expressions to which I have added emphasis, AH spoke of perceiving "like a pressure" and that it was her "subconscious kind of worked out what the pressure was". 26 The jury had been directed that it was essential that the Crown prove an (unlawful) touching and it can readily be appreciated how a doubt may be entertained as to whether there was in fact any contact when considering this count. 27 Her initial impression when this stage had been reached of a "pointy thing" which she thought was a penis was incorrect, and there was no suggestion that it might have been correct. Insofar as she thought that "the shape of a face was in there" it was an express submission of trial counsel for the appellant that the jury would doubt her certainty about this. The acceptance of that submission would lead to an acquittal on count 4 but would in no way affect any conclusion which the jury may have reached as to guilt on counts 1 and 2. 28 It can further be observed that it was specifically put to AH that in applying massage to the legs the appellant would use his hands and elbow, a proposition which she accepted. She also acknowledged that in those circumstances the appellant, when using his elbow, would consequently have his head near to where he was applying pressure. In the light of the references by the complainant to her subconscious "working out" what was happening, it would be entirely within the scope of rational judgment for the jury to consider that the possibility existed that, although the appellant's head was in the near vicinity, any feeling which the complainant sensed was caused by contact of the elbow as an incident of the application of legitimate massage thus leading to an acquittal on count 4. 29 That situation is entirely compatible with the complainant being uncertain as to matters of detail, a circumstance expressly contemplated as a possible factor leading to different verdicts in the discussion in MFA. 30 The ground of appeal is not sustained and I would dismiss the appeal against conviction. 31 I turn to the Crown appeal against sentence. It was imposed on 27 March 2008. On count 1 the appellant was ordered to enter a bond for a period of 5 years pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 with conditions that he appear if called upon, be of good behaviour and advise the Registrar of the District Court in writing of any change of residential address. On count 2 he was sentenced to imprisonment for 10 months suspended upon entering a bond upon conditions in the same terms as the bond on count 1 with the addition of a further term that he not work as a masseur either on a paid or unpaid basis in the clinic at which the offence occurred. 32 The restraints which operate against the exercise of power to intervene and increase sentence on Crown appeals are well established and do not require recapitulation. Everett v The Queen (1994) 181 CLR 295; Lowndes v The Queen (1999) 195 CLR 665, Dinsdale v The Queen (2000) 202 CLR 321. It is also established that the Court has a "lively discretion" not to intervene even if error has been shown: for example R v Wall [2002] NSWCCA 42. 33 The facts of the offences have sufficiently been summarized in dealing with the conviction appeal. The Crown's comprehensive submission was that the learned sentencing judge made "several appealable errors and manifestly inadequate sentences were passed as a result". 34 The first error alleged is that his Honour failed properly to determine and have regard to the objective seriousness of the offence. It is complained that his Honour understated the actual conduct constituting the charge in count 2. The extracts from the testimony of HA above quoted are by no means the entirety of what was said as the witness, understandably, tendered extensive descriptions of what she thought and felt she was experiencing. His Honour, obviously endorsing as his own finding what he stated that the jury must have found, expressed the view that the offence of sexual intercourse without consent fell "almost at the extreme lowest level" of seriousness. As is the case, several categories of sexual penetration are within the statutory definition and his Honour was obliged to consider where the facts in this case lay in the spectrum from the worst to the least serious: Ibbs v The Queen (1987) 163 CLR 447. 35 In written submissions the Crown referred to his Honour's finding and contended that "his Honour went on to speak of the minimal degree of physical interference involved". In fact, before remarking on that aspect and immediately following the finding about the level of seriousness he expressed the qualification "that is not to say that the distress caused to the complainant was not significant". He referred to her statements about the psychological impact the offences had had on her. 36 It was complained that his Honour determined the level of objective seriousness "before" having regard to the factor of breach of trust which would elevate the seriousness of the offence. As that expression reveals it is not contended that his Honour ignored or overlooked the factor of breach of trust. In his remarks he specified the relationship between masseur and the customer was one of trust and, again in apparent adoption as a finding of his own, he said that the jury must have found that the appellant had abused his position as such a masseur. The mere sequence of his Honour's remarks leads to no conclusion that he determined the level of seriousness without taking the matter of breach of trust into account. 37 The evidence does not demonstrate that the finding that the seriousness was almost (emphasis added) at the extreme lowest level was wrong and it was a judgment within the ambit of the sound exercise of his Honour's function. 38 The second submission was that his Honour took into account the possibility of deportation and that this was impermissible. The appellant's situation was that he has resided in Australia since 1990, has an adult daughter here, and has been in a relationship with Grace for some years. He is 52 years of age. In early 2007 he applied for citizenship and has been informed that the application has been approved. His citizenship has not been granted and the outcome of these proceedings may affect the decision. His Honour referred to cases at some length, in particular The Queen v Shrestha (1991) 173 CLR 48 and R v Mirzaee [2004] NSWCCA 315. Each of those cases, although dealing with different State legislation, was focussed upon not discriminating against potential deportees in setting a minimum custody element of a sentence of imprisonment. I would question the correctness of his Honour's conclusion that the latter case in particular is authority for proposition that the threat of deportation is a relevant factor "if technically an additional punishment, at least something which increases the seriousness of the consequences of the sentence that is imposed". Both cases were about not taking potential deportation into account and provided no basis for applying the converse. 39 In R v Pham [2005] NSWCCA 94 Wood CJ at CL (Hislop and Johnson JJ concurring): " It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ. The fact that the Respondent would be or might be deported to Vietnam, was accordingly an immaterial factor in structuring a sentence in this case and error would be demonstrated if it could be established that it became a factor in determining any aspect of the sentence including the selection of an appropriate commencement date." 40 This appeal is not a suitable vehicle for determination of any perceived dispute or doubt about principle. This is because, despite his Honour's vigorous expressions of views, there is no indication that he took the possibility of deportation into account by reduction of a sentence which he otherwise would have imposed nor that the structure of sentences was affected by such a factor. 41 Next it was submitted that his Honour failed to take into account the appellant's prior conduct. His record had one entry of a conviction for indecent assault in the Local Court on 25 August 2000 when he was fined and placed on a good behaviour bond for 4 years. However, on 12 December 2000 in the District Court the sentences were quashed and in lieu thereof there was substituted a finding of guilt and without proceeding to conviction. The appellant was required pursuant to s 10 of the Crimes (Sentencing Procedure) Act to enter into a bond to be of good behaviour for one year. 42 As his Honour noted, he was handicapped by the absence of a transcript of reasons of the Judge in the District Court proceedings, the relevant tapes having apparently been destroyed. It was not contended that what was revealed was a statutory aggravating factor there being no prior conviction: R v Price [2005] NSWCCA 285. It was contended that the prior behaviour operated to deprive the appellant of leniency which he might otherwise claim. The Crown observed that it was difficult to see what findings of fact of lower seriousness there might have been other than those of the magistrate. The record of the Local Court described a brief placing of a hand upon the (clothed) breast of a 17 year old customer. 43 His Honour noted that he could not determine from the surviving records whether the appeal to the District Court was "all grounds" or against severity only. It had been a defended trial in the Local Court. The elaboration about this matter was obviously in response to submissions which had been made by the respective counsel, however, the submission by counsel for the appellant that there is nothing in the remarks on sentence or for that matter in the record of proceedings which suggests that his Honour treated the appellant as a first offender or a person of prior unblemished character was correct. 44 Finally it was submitted that his Honour determined to suspend the sentence on count 2 before setting the length of term: R v Zamagias [2002] NSWCCA 17. An examination of his Honour's remarks discloses expression in this order, that a custodial sentence on count 2 was required, that he would not impose a bond under s 9 as he intended on count 1 by reason of the nature of the offence on count 2, that there need not be a fulltime custodial sentence and that he proposed to direct a sentence but that it should be suspended for its term. 45 Immediately following this statement he imposed a sentence of 10 months imprisonment and made the order for suspension. There was no earlier reference to an extent of term. It is difficult to accept that his Honour had not, in those circumstances, assessed the term before he expressed the actual imposition. There is no basis for conclusion that there was any adjustment of the term in order to enable suspension and I am unpersuaded that the circumstances provoke any intervention by this Court. 46 Counsel for the appellant has pointed to the brevity of the incident, the lack of violence or force, the limited degree of penetration and the nature of it, the level of gravity in the breach of trust, the cessation of behaviour when the complainant resisted. These were needed to be balanced against the elemental conduct involved in the offences and the consequences upon the victim together with matters such as specific and general deterrence. 47 Ultimately, in my opinion it cannot be concluded that the impositions lay outside the sound exercise of his Honour's sentencing discretion, and the individual complaints by the Crown have not demonstrated that the sentences are tainted by error which requires substitution of greater sentence. 48 I propose the following orders:

R v QIN; QIN v REGINA

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