R v R L [2009] VSCA 95

Court of Appeal (Vic)|2009-05-19|Before: NETTLE and DODDS-STREETON JJA and, COGHLAN AJA

Criminal Law - Conviction - Indecent assault of a child under the age of 16 years - Appellant convicted on 17 counts and sentenced to five years and 10 months' imprisonment with a non-parole period of three years and six months - Whether evidence sufficient to support two particular counts - Whether verdicts on remaining counts unsafe and unsatisfactory - Whether judge failed properly to direct jury as to prior inconsistent statements - Whether forensic disadvantage resulted from amended presentment - Appeal allowed in respect of three counts - Appellant re-sentenced on remaining counts to a term of five years' imprisonment with a non-parole period of three years.

2 The offences were alleged to have occurred between 1 January 1979 and 31 December 1980 at the applicant's home in Greensborough. The applicant was then between 22 and 24 years of age and not long married. He and his wife had recently moved into the house and he was in the process of digging out a pool room underneath it. At the time, the complainant was a little girl of 11 or 12 years of age and a school friend of applicant's younger sister. On several occasions, she accompanied the applicant's sister to the applicant's home ostensibly to help with the work.

3 The offending was alleged to have occurred on four separate occasions, of which more detail later. In general, however, as the trial judge described it, on each occasion the complainant visited the applicant's home, the applicant took her to the bedroom and there engaged in conduct comprised of kissing her with his open mouth, touching her vagina, rubbing his penis over her body, digitally penetrating her vagina and touching her breasts and buttocks. There was also one count of attempted penetration of her vagina with his penis, one of placing her hand over his penis and causing her to masturbate him to ejaculation and one of touching the complainants' bottom in the area of her anus.

4 The defence case was than none of the alleged conduct ever occurred and the applicant gave evidence in which he denied that it occurred.

Ground 1 - Whether sufficient evidence to support Counts 11 and 17

5 Under Ground 1 of the application for leave to appeal against conviction, counsel for the applicant submitted that the complainant's evidence did not provide a sufficient basis for a conviction on Count 11, and that her evidence on Count 17 was at best sufficient to sustain a count of gross indecency (as opposed to the count of indecent assault which was charged).

6 According to the summary of Prosecution Opening, the prosecutor opened Count 11 in terms that:

The complainant further recalls that the accused also touched her on the breast and bottom during this incident in 1978,

and then, as appears from the transcript, offered as particulars of the evidence in support of that count:

7 The complainant's evidence, to which the particulars referred, was as follows:

Do you remember going home or to [F's] [the applicant's sister's] or anywhere after this occasion? --- No. I must have got to F's but I can't remember. Once I've left, I can't remember. For the life of me, I can't remember.

Have your tried? --- I've tried really hard.

Did you go over to the [applicant's] house at any other stage? --- Yes. I can at least remember another occasion.

Can you describe that occasion? --- It was the same. It was me going from [F's] mother's with [F] in the ute. Sitting in the ute. We'd drive to his [the applicant's] place, he'd talk all the way there talk, talk, talk, talk. Once we got there, the room, he'd show us the room again and it was dug out more and he'd take me up through the laundry and into the room and the same thing would occur.

When you say the same thing, what again occurred? --- He kissed me on the mouth and all over my body and had an erection and did all those things like a grown up person would do with a grown up woman.

He kissed you in a similar fashion from the other two times [sic], is that right? --- Yes.

Where were you when he kissed you on that occasion? --- In his bedroom.

Were you on the bed or were you standing? --- I was on the bed.

Did you have clothes on? --- No.

How did they come off? --- He took my clothes off.

What about him, when he was kissing you, did he have clothes on? --- He was just in his underpants and he'd take his underpants off once the sexual act started happening.

Did he kiss you anywhere else other than on the mouth on that occasion? --- Around my chest area, my body.

Do you recall whether you had formed breasts at that stage? --- I didn't have any breasts.

8 In my view, it was open to the jury on the basis of that evidence to convict the applicant on Count 11.

9 An assault is an indecent assault within the meaning of purposes of s 39 of the Crimes Act 1958 if it amounts to an act of indecency upon the victim or is otherwise of such a character as to involve an act of indecency upon the victim.[1] For that purpose, 'indecent' imports a sexual connotation which:

may derive directly from the areas of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are relevant areas...[2]

There is also some authority for the proposition that, even where an assault is not such as unequivocally to offer a sexual connotation, it may still constitute an indecent assault if accompanied by an intention on the part of the assailant thereby to obtain sexual gratification.[3] In the end, however, it is a question of fact for the jury to decide according to contemporary standards of modesty and decency.[4]

10 Here, according to the complainant's evidence, the applicant kissed the complainant on the chest while she lay naked in his bed after he had undressed her and removed all of his own clothes other than his underpants. In those circumstances, I consider that the sexual connotation was obvious. The jury were entitled to conclude that the act of kissing the complainant on the chest was either one from which the sexual connotation derived directly or at least which was indecent because accompanied by some intention on the part of the assailant to obtain sexual gratification.[5]

11 The position in relation to Count 17 is different. The complainant's evidence in chief was relevantly as follows:

And what happened in this occasion? --- He asked me to get undressed.

Where were you? --- In his bedroom.

...

...I probably took a little longer. And then he started to help me take off my clothes. And then I was on the bed. He was kissing me first, he was kissing me that time.

What, before you were on the bed? --- Yes, he was kissing me and touching me and then he asked me to take my clothes off and then he was helping me to take my clothes off and then I was on the bed. And then it was the same sort of kissing and touching and sucking on my breasts and he had his penis at my vagina at this time, he was really trying to see if he could have sex with me.

...

And what did he do then? --- He got my hand and held my hand on his penis and started to masturbate with my hand on his penis.

... How long did this go on for, this masturbating? --- Until he ejaculated, five minutes, I - it's hard to tell.

...

No, OK. Did he touch you anywhere else during this episode? --- I remember his finger was near my bottom and I tensed up when it was near my bottom, and that felt strange.

...

And when was it that he had his finger near your bottom, we take it you mean, you mean anus? --- Yes, my bottom.

When was it in the sequence where he had his finger there? --- Sorry?

Where was it in the sequence, was that before the masturbation, was that afterwards. --- It was during. It was during the whole - during the time he had his fingers in my vagina and then they went towards my bottom and then his penis was in my vagina and then he masturbated.

Now, one of the things that happens to you on the last occasion that's different is the fact that his finger went near your bottom; correct? --- Yes.

It's the case, isn't it, that when you first complained about this you said that he put his finger in your bottom? --- I may have said that, yes, in the statement.

...

You accept, don't you, that there's a significant difference between a finger going in and a finger going near a bottom? --- Yes.

And when you made that complaint you made no complaint of pain or discomfort? --- No, I didn't say that in my statement.

Do you now say that was wrong? --- No, at the time I said what was in my mind when I made my statement.

Well, what's in your mind now - what's in you mind now is different; is that right? --- Not exactly.

13 Despite the prosecutor going back to the detail of the offence on at least one occasion and attempting to have the complainant be a little more specific about what occurred, the complainant never did say that the applicant's hand actually touched any part of her bottom. Consequently, as I read the totality of her evidence on this point, it rose no higher than that the applicant's finger moved near to the applicant's 'bottom', meaning her anus, at some point between the applicant having his fingers in her vagina and then attempting to place his penis in her vagina.

14 Needless to say, there can be an assault without a battery as, for example, with a threat which causes the victim to apprehend immediate and unlawful violence,[6] and so, therefore, there can be an indecent assault without touching.[7] But

in this case, in order to avoid charging the applicant twice with the same offence, it was accepted that there would have to be at least some touching, however slight, to warrant the preferment of Count 17. And since the evidence adduced in support of that count was not sufficiently clear to support an inference beyond reasonable doubt that there had been any touching, the applicant should have been acquitted of the offence.

Ground 2 - Were the verdicts on Counts 9 to 11 and Counts 12 to 17 unsafe and unsatisfactory

15 The argument advanced in support of Ground 2 was in two parts. The first was that the applicant's evidence as to what was called the third incident (comprised of Counts 9 to 11) was so uncertain as to time and details, and so different to the applicant's prior statements about the incident, that it was an unsafe and unsatisfactory basis for conviction on those counts. In particular, it was said that, because the complainant deposed in evidence in chief that she could remember going to the applicant's home on another occasion after the second incident, it may be that she only ever went there on one other occasion after the second incident and, therefore, that there was no third incident as opposed to the fourth incident which she later described in greater detail.

16 I do not accept that submission. I have set out the relevant evidence above. Read in context and by reference to the totality of her testimony as to the third and fourth incidents, it appears to me clear that what the complainant intended to convey by the expression 'another occasion' was at least one other incident besides the fourth incident. I am strengthened in that view by the fact that there was not a hint in the complainant's cross-examination of the point now sought to be made.

17 Counsel for the applicant prayed in aid what he said was the apparent inconsistency as between the applicant's prior statements as to when the offences occurred and as to what she said in evidence about them. But subject to what is said below about prior inconsistent statements, that does not appear to me to take the matter much further. At most, it showed that the complainant was not wholly certain as to whether the first occasion on which she went to the applicant's home was when she was in grade 5 or grade 6 at primary school. Given her age at the time, and the certainty with which she described each of her visits to the house, including the detail of what she observed in the house and the detail of what was done to her whilst there, I should have thought it was a point of very little forensic significance.

18 At all events, I do not consider that such uncertainty as there may have been concerning the year of the complainant's first visit to the house should have caused the jury to have a reasonable doubt as to the applicant's guilt of Counts 9 to 11.[8]

19 The second argument advanced under Ground 2 concerned the fourth incident (comprised of Counts 12 to 17) and seems to me to be of greater significance. The nub of it was that the complainant gave evidence specifically identifying the fourth incident as one which began with playing pool with the applicant's sister on a pool table in the pool room, whereas the applicant's evidence was that there was never a pool table or any other sort of table in the pool room; and that evidence was supported by the testimony of the applicant's former wife and his brother in law and his sister.[9] Counsel for the applicant submitted that when one combines what he described as the consequent uncertainty as to whether there ever was a pool table with the complainant's uncertainty as to precisely when the fourth incident occurred,[10] the jury should have had a reasonable doubt as to whether the applicant was guilty of Counts 12 to 17.

20 I accept that submission in part. The particulars given of Counts 12 and 13 were as follows:

Count 12

In 1979 the complainant started high school at [name of school]. She was 11 turning twelve during that year. During one afternoon after school both the complainant and [the applicant's sister] attended at the home of the accused. The pool room to the house had been completed and the two girls played pool as the accused just watched them. Both girls were wearing their summer school uniform. The accused touched the complainant's breasts whilst she played pool.

Count 13

The accused also touched the complainant's buttocks whilst she played pool.

21 It follows that proof that the offences occurred in conjunction with a game of pool at the pool table was critical to proof of those offences. As the evidence turned out, however, there was a reasonable doubt as to whether there was a pool table or any other sort of table at which the complainant may have been playing when the offences were alleged to have occurred. In those circumstances, I consider that the jury should have had a reasonable doubt as to whether the applicant was guilty of Counts 12 and 13.

22 The other offences comprised in the fourth incident are in a different category. As I see it, whatever mistakes the complainant may have made about the pool table, and therefore about Counts 12 and 13, there was no reason to doubt her evidence about Counts 14, 15 and 16. They came after the recollected game of pool and occurred in the bed room in anther part of the house. The complainant also had particular reason to remember them[11] because, as she said, it was during the fourth incident that the applicant for the first time attempted to penetrate her vagina with his penis and put his finger near her anus; it was not until the fourth incident that she had begun to grow breasts and pubic hair - before that, she still had what she described as a little girl's body with no breasts or pubic hair; and it was when the fourth incident occurred that she vowed that the offending would never happen again.

23 Under Ground 3, counsel for the applicant contended that the trial had miscarried because of the judge's failure to direct the jury adequately as to the significance of the complainant's prior inconsistent statements, and in particular by failing to draw the jury's attention specifically to each of the prior inconsistent statements on which defence counsel relied.

24 I do not accept that contention. In the end, there were only five prior inconsistent statements identified in the course of running and only one of them seems to have been of any real significance.

25 In order of priority, the first was that the complainant changed her evidence from committal as to whether the first occasion on which she visited the applicant's home was during grade 5 or grade 6. I have referred to that already and, for the reasons already stated, I do not regard that as being of much weight. The second was that it was not until the complainant gave evidence at trial that she mentioned for the first time that the applicant's wife had arrived home during one of the complainant's visits to the house shortly after the offending on that occasion. Defence counsel took the jury to that in the course of final address and made what he could of it. In my view, its significance was de minimis. The third was that the complainant said in her statement that the applicant had touched her when she was in the laundry at the applicant's sister's home, but did not give evidence to that effect at the trial. Any reference to that point, however, could only have been to the disadvantage of the applicant, and it was no doubt for that reason that defence counsel did not stress it or seek any prior inconsistent statement direction in respect of it. The fourth was that the applicant had said in her statement that the applicant placed his finger in her anus but in evidence said only that he placed it near her anus. That point was of advantage to the applicant, albeit that its effect upon the complainant's credibility was surely minimal. It leads to the conclusion already stated that the applicant should be acquitted of Count 17. The final point was that the complainant said before trial that the applicant stated during the first incident that he would not penetrate her with his penis because: 'I'll split you in two', but then said in her evidence at trial that he may have stated that on the second occasion rather than the first. Defence counsel stressed that in final address.

26 The judge gave the jury a relatively detailed conventional explanation of the way in which prior inconsistent statements can and cannot be used and later drew the jury's attention to the cross-examination directed to the applicant's change in testimony[12] as to whether she was in grade 5 or grade 6 when the first incident occurred. His Honour did not refer specifically to any of the other prior inconsistent statements, however, and I dare say that it may have been preferable if he had. Even so, in view of defence counsel's final address, in which he specifically referred to each of the prior inconsistent statements on which he relied, I do not think that the jury can have been left in any doubt about their significance.

27 I am strengthened in that view by the fact that, although the judge invited exceptions very shortly after completing that section of his charge, none were then or later taken. As was observed by this court in R v Hartwick, Hartwick and Clayton,[13] where cross-examination about prior inconsistent statements has been dealt with by defence counsel in final address, in such a way as to bring home to the jury the significance which counsel would have the jury attribute to the statements, and defence counsel does not then think it necessary to ask for a specific direction concerning the statements, it may usually be supposed that it is because the point is perceived to be clear to the jury.

28 Under Ground 4, the applicant complained that the judge erred in directing the jury that evidence given by the applicant's sister was capable of confirming or supporting the complainant's evidence that she had gone alone into the applicant's bedroom where he had committed the bulk of the offences.

29 In my view there is no substance in that point. The applicant's sister gave uncontradicted evidence that she saw the applicant and the complainant go off together in the direction of the bedroom and, as I see it, that was evidence which was capable of confirming or supporting or strengthening the complainant's evidence that the applicant had taken her to the bedroom and there committed the offences on her. It did so by connecting the applicant with the complainant and the bedroom at the time when the offences were alleged to have been committed, and thus connected him with the offences alleged.[14]

30 Counsel for the applicant argued in the alternative that, even if the applicant's testimony were capable of corroborating the complainant's allegations, its use was limited - given the lengthy period of time over which the offending was alleged to have occurred - and only confirmed the complainant's account to the extent that it showed that she was taken off to the bedroom on some unspecified occasion. It followed, he said, that it was incumbent on the judge to make clear to the jury that they had to be satisfied beyond reasonable doubt as to the specific occasions and time periods pertinent to each incident.

31 Perhaps that is so. But even if it is, it seems to me that effectively his Honour did just that - by directing the jury as to the need to consider each count separately by reference only to the evidence which applied to that count and as to need to be satisfied beyond reasonable doubt on the basis of that evidence that the count had been proved.

32 Counsel for the applicant advanced a further contention that the judge, in effect, reversed the onus of proof by instructing the jury that:

The reliability of her evidence will be essential to the prosecution case and the ability of the defence to rebut that evidence will be critical to the defence case.[15]

33 I do not consider that there is any substance in that point either. The judge had previously given the jury extensive directions as to the onus and standard of proof and emphasised that it was for the Crown to satisfy them beyond reasonable doubt of the elements of each of the offences charged. The words which are now complained about are properly to be seen in that context as part of a direction which in effect was unduly favourable to the applicant:

If you are not satisfied beyond a reasonable doubt that the evidence of [the applicant's sister's] supports the complainant's evidence, then her evidence stands alone. If the complainant provides the sole evidence of the crimes, then her evidence will be crucial to the case. The reliability of her evidence will be essential to the prosecution case and the ability of the defence to rebut that evidence will be critical to the defence case. For this reason alone I direct you that you must scrutinise the complainant's evidence with great dare before convicting on the basis of that evidence alone.

Read in context, it will be seen that the point which the judge was making for the benefit of the applicant was that the jury had to scrutinise the complainant's evidence very closely.

34 The applicant's counsel argued also that the judge had erred by instructing the jury that:

If, however, you are satisfied beyond a reasonable doubt that the evidence of the [the applicant's sister] supports the complainant's evidence, then the warning I have just given you does not apply.

Counsel submitted that what the judge should have done was advise the jury that, even if they were satisfied that the complainant's evidence was supported by the applicant's sister's evidence, there were still reasons to scrutinise the complainant's evidence carefully.

35 In my view, that is not so. The presentment was filed on 15 November 2007 and, therefore, the trial was governed by the Crimes (Sexual Offences) (Further Amendment) Act 2006.[16] The judge was not to know that, however, because Taylor (No 2) was not decided until after the trial, and understandably, therefore, his Honour gave the jury a full Longman[17] warning which included this:

I must go further than that. Because of the risks arising from the delay that I told you about, I must warn you that it would be dangerous to convict the accused on the basis of the complainant's unsupported evidence alone, unless after scrutinising her evidence with great care and considering the circumstances and factor that I have drawn to your attention, and paying heed to the warnings I have given you, you are satisfied beyond reasonable doubt of its truth and accuracy.[18]

36 The words about which complaint is made came immediately after that direction and, as I read them, would have been understood by the jury as referring to the danger of convicting on the uncorroborated evidence of the complainant (as opposed to the need to scrutinise her evidence with great care and be satisfied beyond reasonable doubt as to its truth and accuracy). So much is put beyond doubt I think by the fact that, immediately after the words complained about, the judge continued thus:

This does not mean that you can disregard all that I have just said about the risks that arise due to the lengthy delay in complaining about the alleged offences. The existence of supporting evidence does not change the fact that the accused may suffer disadvantages in the defence of his case. You should still take these disadvantages into account when making your determination.

Another matter for you to consider is the absence of complaint or delay in complaining, which may be taken into account in evaluating the evidence of the complainant....

Ground 5 - Forensic disadvantage from amendment of presentment

37 On the second day of the trial, after the complainant and the applicant's former wife and the applicant's sister had given evidence, the prosecutor sought leave to amend the presentment to enlarge the dates for Counts 12 to 17, from between 1 January 1979 and 31 December 1979 to between 1 January 1979 and 31 December 1980. As the prosecutor explained:

It's widening it by a year and I base that upon answers given by the last witness, [the applicant's sister], about the digging potentially being over a 12 month period.

38 Defence counsel objected to the amendment on the basis that it constituted a 'prosecution case change'. As he put it:

[The amendment] is objected to your Honour. This constitutes a prosecution case change. This man is entitled to know the case against him. Merely because there's been some effective cross-examination, it doesn't entitle the Crown once more to shift the goal posts.

But the judge was not persuaded that the prejudice to the applicant was such that leave ought be refused, and so his Honour granted the application.

39 Under Ground 5, counsel for the applicant now contends that the judge erred in granting the amendment because, it is said, it is clear from cross-examination of the complainant that it was a major defensive strategy to create substantial doubt regarding the complainant's evidence by establishing that particular events could not have happened within the alleged time periods, and the amendment effectively undermined that strategy.

40 I see no error of the kind alleged. The court is possessed of wide powers of amendment, even up until after conviction, provided it causes no injustice,[19] and as the judge in effect held, there would be no injustice if the amendment were made in the presence of the jury so that it would be open to defence counsel to comment upon its forensic significance as much as he chose. That in fact was done.

41 Counsel for the applicant argued that it was incumbent on the judge specifically to direct the jury as part of the charge as to how the amendment disadvantaged the applicant. In my view that is not so. Defence counsel was free to make such point of it as he chose and, as events turned out, he chose to make very little of it. Presumably, he did so for good forensic reason.[20] To suggest that it was incumbent on the judge to give a specific direction which defence counsel did not seek at the trial runs counter to the manner in which defence counsel chose to conduct his case and, in this instance, should be rejected.[21]

Ground 6 - The judge's summary of the evidence

42 Under Ground 6, counsel for the applicant argued that the judge did less in summarising the evidence than was required. He submitted that in a case which involved delay, dates, uncertainty, prior inconsistent statements, and allegations lacking substantial particulars, it was incumbent on the judge to do more to explain the complainant's evidence as it touched upon each count.

43 I do not think that is so. The judge summarised the complainant's evidence under the headings of each of the incidents and then summarised each of the significant concessions and other responses which the complainant had made to propositions put to her in cross-examination. I am unable to see that anything more was required. The judge was under no obligation to summarise the evidence as such. The requirement is to relate the law to the issues by drawing the jury's attention to the evidence which bears upon each issue.[22] In my view his Honour did just that.

44 No doubt, if defence counsel had asked for greater specificity, the judge could have and presumably would have given the jury a summary of greater detail. But in view of the nature of the complainant's evidence, I should have thought that defence counsel had every reason not to want the judge to emphasise the particulars. In a case of this kind, it would be fanciful to suppose that the applicant was disadvantaged by the deletion of some of the details.

45 Counsel for the applicant complained that the judge responded to a jury question by repeating the prosecutors' summary, instead of providing the jury with the guidance they sought on the evidence. In my view, that criticism is also misplaced. After retiring to consider their verdict, the jury three times asked for passages of the evidence to be read out to them, which was done (after counsel and the judge had together determined which sections of the evidence were relevant to the requests), and once asked to be provided with a written copy of the charges. As the judge observed at the time, to have provided the jury with a copy of the presentment would have done little to assist them. All of the charges were expressed in exactly the same terms, except as to times, and defence counsel had said that he was loath that the jury be given anything in writing. Consequently, the judge took the course (with the agreement of defence counsel and the prosecutor) of repeating to the jury what he had earlier been said in the course of the charge as to the way in which the Crown put its case.

Ground 7 - Lies and the need for Zoneff direction

46 As part of the Crown case, the prosecutor called a local council officer, Mr Hick, to depose to the times and details of building inspections carried out by the local council during the construction of the applicant's pool room. In the course of final address, the prosecutor invited the jury to conclude from that evidence that the applicant's testimony as to the dates and times of construction of the pool room was not to be believed and, therefore, that ultimately:

His denials, he didn't do any of these things, what can you make of those denials now? Not telling the truth.

47 Then, when directing the jury as to the processes involved in drawing an inference, the judge said this:

Now in this case, you have the situation where [Crown counsel] says you should draw the inference that the accused is lying regarding the pool room construction times, when you consider the evidence of Mr Hick and the council record of inspections. [Defence counsel] says on the whole of the evidence, regarding the completion of the pool room you cannot draw any inference adverse to the accused.

48 Despite the fact that no exception was taken to that direction, counsel for the applicant now contends that it gave rise to such a risk of the jury reasoning that the applicant had lied because of consciousness of guilt that the judge was bound to give the jury a Zoneff direction.[23]

49 I do not think that is so. It may be wondered why the judge chose the point about construction times to demonstrate the process of inference. With respect, it does not seem to me to have had a great deal to do with the inferences for which the Crown was contended; although perhaps that is why his Honour chose it. But be that as it may, I very much doubt that it would have caused the jury to contemplate consciousness of guilt. And even if it may have, it is not enough for the applicant to succeed to establish only that the jury may have reasoned that the applicant was guilty because he lied about the completion times of the pool room. For the point to succeed, the applicant would have to establish that there is a reasonable possibility that the failure to give the jury a Zoneff directions 'may have affected the verdict'.[24] In my view, it cannot seriously be supposed that it would have that effect.

50 Finally, counsel for the applicant argued under Ground 8 that the cumulative effect of the errors for which he contended under the other grounds of appeal were such that the Court should conclude that the trial had miscarried.

51 It will be apparent from what I have already said about the other grounds of appeal that I reject that contention.

Conclusion and orders as to appeal against conviction

52 For the reasons which I have given I would allow the application for leave to appeal against conviction and treat the appeal as instituted and heard instanter and allowed, and I would quash the convictions on Counts 12, 13 and 17.

53 If the convictions on Counts 12, 13 and 17 are to be quashed as I propose they be, the sentencing discretion will be reopened and it will be unnecessary to consider the appeal against sentence. For the purposes of re-sentencing the applicant, however, it is appropriate to refer a number of submissions which were advanced by counsel in support of the appeal against sentence.

54 To begin with, it was submitted that there has been such delay since the commission of the offences that the applicant was entitled to a substantial discount on sentence.

55 I am not persuaded by that submission. As Ormiston JA observed in R v Nikodjevic,[25] it is not just delay but rather 'undue' delay which informs the discount ordinarily allowed in cases where an accused is not dealt with until a substantial period of time after the offending. So, as Eames JA remarked in DPP v BGJ,[26] in cases of sexual offences, delay in reporting does not give an automatic right to a reduction or discount in sentence. As I see it, that is the position here.

56 There was a suggestion that the complainant first considered reporting the matter as long ago as 1993. But given the nature of the offences and their effect upon her, she could hardly be criticised for delaying as long as she did. As Vincent JA explained in DPP v Toomey,[27] in cases of this kind the imperative of vindicating the victims and thus encouraging others to continue to come forward militates against the sort of leniency which delay of itself might otherwise attract:

... The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly...

...

If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences. In my view, this cannot be permitted to occur.

57 In any event, it cannot be said in this case that the applicant has used the delay since offending in order to remake his life to such an extent that he should now to be seen as a different character to the man who committed the offences.[28] To the contrary, in 1993 he was sentenced to three and a half years' imprisonment for sexual offences committed on his son's thirteen year old girl friend, some 13 years after the offences the subject of this appeal. I do not overlook that, when last in prison. he underwent a sexual offenders' course and, so far as is known, there has been no more offending since his release on parole more than 12 years ago. But the psychological report tendered on the plea below is not particularly encouraging. As was there observed:

Undertaking a risk assessment in relation to sexual offending is always a difficult task. In my opinion, [the applicant's] risk level would have to be somewhat elevated as a result of him having already pleaded guilty to sexual offending against a minor [the thirteen year old girl]. Apart from this fact there would not appear to be any other specific relevant risk factors, apart from the fact he himself reports having been the victim of sexual abuse. This factor may even assume more importance given he states he still does not regard himself as having been traumatised through being subject to what, in objective terms, was sexual abuse from when he was aged 14 through to when he was aged 15.

58 Counsel for the applicant argued that, because these offences were committed more than 30 years ago, the sentences now to be imposed should reflect the sentencing practices that were current at that time rather than the higher levels of sentences which are imposed these days for comparable offences.

59 There is more force in that submission. The maximum sentence for each of the offences of sexual penetration with which we are here concerned was five years' imprisonment.[29] Today, the maximum sentence for the comparable offence of sexual penetration of a child aged between 10 and 16 years is 15 years' imprisonment[30] and many of the sentences reflected in so called current sentencing snapshots are informed by that higher maximum. In R v MJR,[31] the New South Wales Court of Appeal held that, when sentencing practice has moved adversely to an offender, it is proper for a court to take into account the sentencing practice as at the date of the commission of the offence. In my view, it is appropriate that we do the same. As I read s 5(2)(b) of the Sentencing Act in light of s 114 of that Act, that is what is intended by 'current sentencing practices'.[32]

60 Counsel for the applicant emphasised that each of the four incidents was within itself essentially one continuing episode of criminal behaviour and submitted on that basis that there should be substantial concurrency as between the individual sentences imposed on the counts within each incident. He also argued that, bearing in mind the requirements of totality, there should be a significant degree of concurrency as between incidents. I accept that submission up to a point. At the same time, however, since each incident was a separate episode of offending, I consider that a degree of cumulation between incidents remains necessary to reflect the overall level of criminality.

61 Finally, counsel for the applicant stressed the applicant's relative youth at the time of offending, the degree of rehabilitation which counsel submitted the applicant has achieved since his last period in prison, his work record, his present age and his present state of health. I allow that each of those factors is to be weighed in the balance with the requirements of denunciation, general and specific deterrence, just punishment and community protection .

62 Bearing in mind the matters to which I have referred and balancing them as best one may, I would re-sentence the applicant on each of the counts of digital vaginal penetration (Counts 7, 9 and 14), to two years' imprisonment; on the count of attempted penile vaginal penetration (Count 15), to one year's imprisonment; on the count of placing the complainant's hand over the applicant's penis and masturbating the applicant (Count 16), to one year's imprisonment; on each of the

counts of kissing the complainant with open mouth (Counts 1 and 5), to one month's imprisonment; on the count of touching the complainant in the area of the vagina[33] (Count 2), to three months' imprisonment; on each of the counts of kissing or touching the complainant's breasts (Count 3, 6 and 11), to three months' imprisonment; and on each of the counts of rubbing the applicant's penis over the complainant's body (Counts 4, 8 and 10), to six months' imprisonment.

63 Like the judge below, I would treat the sentence imposed on Count 7 as the base sentence and order that the sentence of six months' imprisonment imposed on Count 4, one month of the sentence imposed in Count 8, one year of the sentence imposed on Count 9, one month of the sentence imposed on Count 10, one year of the sentence imposed on Count 14, one month of the sentence imposed on Count 15 and three months' of the sentence imposed on Count 16 be served cumulatively on each other and on the sentence imposed on Count 7. The total effective sentence, therefore, would be five years' imprisonment, and I would set a non-parole period of three years.

64 I have had the advantage of reading in draft the reasons for judgment of Nettle JA. I agree with the disposition proposed by his Honour for the reasons he gives.

[1] R v Sorlie (1925) 25 SR (NSW) 532, Fitzgerald v Kennard (1995) 38 NSWLR 184, 199.

[2] R v Harkin (1989) 38 A Crim R 296, 301.

[3] Ibid, see also R v George [1956] Crim LR 52, 53; R v Coombes [1961] Crim LR 54, 55; cf R v Culgan (1898) 19 LR(NSW) L166, 167; R v Court [1989] AC 28, 33 and 42.

[4] R v Court [1989] AC 28, 42-3 (Lord Ackner); AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 473 [95] (Heydon J).

[5] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 396 [46] (Winneke P).

[7] R v Court [1989] AC 28, 42.

[8] The Queen v De Gruchy [2002] HCA 33; (2002) 211 CLR 85, 94 [36]-[37].

[9] Who deposed that, although there may once have been a table tennis table somewhere in the house, she had no recollection of there having ever been a pool table.

[10] In cross-examination, she said at one point that it could have been much later than she remembered.

[11] Cf R v DWB [2008] VSCA 223 [37]; R v Osborne [2009] VSCA 88 [8].

[12] From the committal hearing to the trial.

[14] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 211; R v Strawhorn [2008] VSCA 101, [155].

[17] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[18] Note that since the coming into force of the amending legislation, the requirement has been to give a forensic disadvantage warning in accordance with s 61(1A) of the Crimes Act 1958.

[19] Crimes Act 1958, ss 372 and 416; R v Ernst [1984] VicRp 49; [1984] VR 593, 604-606 (McGarvie J).

[20] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 128 [8].

[21] See and compare R v Suresh (1998) 153 ALR at 151 [22] and [23] (McHugh J) and also 148 [12]-[13] (Gaudron and Gummow JJ).

[22] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466; R v VN [2006] VSCA 111; (2006) 15 VR 113, 144 [124]-[126] (Redlich JA) HML v The Queen [2008] HCA 16; (2008) 235 CLR 334. 386 [121]-[122] (Hayne J).

[23] Zoneff v The Queen (2000) 200 CLR 234, 245.

[24] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 18 [60].

[25] [2004] VSCA 222; see also R v Audino [2007] VSCA 318; (2007) 180 A Crim R 371, 377 [24]-[25].

[27] [2006] VSCA 90, [22]-[24].

[28] Cf R v Merrett [2007] VSCA 1, [35]-[36].

[31] [2002] NSWCCA 129; (2002) 54 NSWLR 368, 374 [3], 378 [69], 379 [71], 384 [105].

Crimes (Sexual Offences) (Further Amendment) Act 2006

At a glance

Court

Decision date

Before

Source

Judgment (126 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)