R v Rich; R v Rich [2000] NSWCCA 448 | Case summary

The appeal against conviction 4 The appellant relies upon a single ground in support of the appeal against conviction, namely: "The conviction should be set aside on the grounds that it is unreasonable and cannot be supported by the evidence." 5 The issue which this ground of appeal presents is whether it was open to the jury to be satisfied of the necessary elements of the charge beyond reasonable doubt, making due allowance for the advantage of the jury in seeing and hearing the witnesses. (See Regina v M (1994) 181 CLR 487; Regina v Jones (1997) 191 CLR 439 and Regina v Mitchell [2000] NSWCCA 188 at p 2.) 6 Consideration of this ground, of course, demands scrutiny of the evidence given at the appellant's trial, and I shall proceed to review this evidence. 7 The complainant was born in 1982 and on the case for the prosecution, the offence charged was committed on or about 4 February 1996 at the complainant's Central Coast home where he lived with his mother, his father and his sister. The complainant has an artificial leg. 8 The appellant is the cousin of the complainant's mother and the complainant knew him as Uncle Shane. 9 According to the complainant, having been with friends on the afternoon of 3 February 1996 he returned home to find the appellant at home with his mother and his father. The complainant was told that the appellant was staying in the home for a while and that he would be sleeping in the complainant's room. 10 The complainant said that after dark that evening the appellant, who appeared to him to be "fairly drunk", drove off in his car and the complainant watched TV with his mother. His mother went to bed about 11 o'clock and the appellant later returned home. 11 The complainant went out to the appellant's car on the latter's arrival home and the appellant, who appeared to be affected by alcohol, asked him for assistance to get out of the car. The complainant said he then spent some time outside the house sitting on the grass and he was talking to the appellant, who spoke to him about Buddhism and other topics. At one time, according to the complainant, the appellant removed his clothes but for his underpants, but he later put his clothing on again. 12 The complainant said he could remember he was conversing with the appellant outside but his next recollection was waking up naked in his bedroom with the appellant on top of him and he said he could feel the appellant's penis in his anus. The complainant was experiencing pain in his anus and also on the back of his head and his shoulders. 13 The complainant said that he later left the room, having collected his prosthesis and the pants that he had been wearing earlier from where he found them next to the bedroom door and took them into the bathroom with him. The complainant then had a shower but, before doing so, said he observed that he had thick white cream on his shoulders, his lower back and his anus. He said that before he left the room the complainant noticed that the appellant was naked and that his penis was hard. 14 The complainant said that having showered and dressed he went to his mother's room but she was asleep. The complainant then went to the house where his sister was spending the night with a girlfriend and he said that he there complained about what his uncle had done. His sister and her girlfriend returned with him to his home and the complainant then spoke to his mother. The complainant said that he found a cream pump next to his bed and he showed this to his mother. He explained that the police came to the house and he later attended Gosford Hospital where he was medically examined. 15 The complainant's sister gave evidence that on the night in question she was staying at her friend Sarah's place and was awakened by Sarah to see the complainant in the bedroom where she had been sleeping. The complainant was crying and he complained that his head was sore. The witness said that she felt a very large lump there. She said that, with Sarah, she returned home and her mother was awakened. Her mother called the police who then attended. According to the complainant's sister, when she returned home she saw the appellant lying naked on the bed in her brother's room. 16 The friend Sarah gave evidence that she was awakened by the complainant, who she observed outside her window. He was crying and complained that his uncle had "f...ed him up the arse." Sarah woke the complainant's sister and together they went with the complainant to his home where the complainant's mother was awakened. This witness also said that she felt a lump on the complainant's head. 17 The complainant's mother gave evidence of having watched television with the complainant before going to bed about 10.30 pm. The complainant's mother said that she was awakened by her daughter and Sarah. This witness then saw the complainant in a distressed state and he complained that the appellant had molested him and that his back passage hurt. The complainant showed her the pump action bottle, which this witness likened to the type used for women's moisturising cream. The complainant's mother said she had not seen this object before. She said that she rang the police and she also said she observed the appellant lying naked on the complainant's bed. This witness later attended the hospital with the complainant. 18 Sergeant Lawley gave evidence that he attended the complainant's home at about 3.20 am and spoke to the complainant and to his mother. His attention was drawn to the container of cream and he said that he entered the bedroom where he, too, observed the appellant to be lying naked. The appellant was aroused and taken to the police station where Detective Fitzsimons gave evidence that the appellant declined to be interviewed. 19 Dr Caldicott examined the complainant at about 7 am on 4 February 1996. To this witness the complainant made complaint which was largely consistent with the evidence he gave before the jury. Dr Caldicott found no obvious bruising on the back of the head of the complainant, although the complainant complained of soreness there and although his mother, his sister and her girlfriend all gave evidence that they had observed swelling on the back of the complainant's head. This discrepancy in the evidence elicited in the Crown case is one of the matters relied upon by the appellant in challenging the conviction. 20 Dr Caldicott did see recent bruising of the inner right arm of the complainant and said this was consistent with the complainant having been grabbed by the fingers. The complainant had a red pressure mark on his right buttock and there were two abrasions/lacerations of his anus. These appeared to be of recent origin and, indeed, to be less than twelve hours old. 21 The appellant gave evidence denying any sexual assault upon the complainant. He said that on the evening in question he went to the local club where he stayed until closing time. Having returned to the complainant's house, he said that he saw the complainant sitting on the grass like a little Buddha and he had some conversation with him before going into the bedroom where he said he went to sleep in his underpants. Indeed, he said he was wearing underpants when he was woken up by the police. However, before that he said that during the night he felt the complainant's hand upon him and this had woken him up and he said something to the effect of, "You little one-legged faggot." The appellant said he was not intoxicated and that he had not sexually molested the complainant in any way. It would seem that the jury was asked to draw the inference from the remark directed to the complainant that this would have made the complainant resentful of him. 22 Dr Collins, forensic pathologist, was called by counsel for the defendant and gave evidence that the complainant's bruising, abrasions and lacerations could have been two days old and that the abrasions and lacerations could have been caused by scratching. Dr Collins had not, of course, examined the complainant but gave his evidence based upon Dr Caldicott's description of her examination. His evidence had to be considered with this in mind. 23 My assessment from a reading of the transcript of the evidence which was placed before the jury is that the prosecution case was a formidable one indeed. Of course, it depended upon an acceptance of the complainant's evidence but the evidence of complaint was consistent with his evidence and there was the finding of the cream dispenser, a dispenser which the appellant admitted to have been his. The appellant said it was vitamin E cream and when last seen by him before going to bed it was in his travel bag. 24 Not only was the evidence of complaint consistent with the complainant's account of events but the medical examination by Dr Caldicott so soon after the assault was entirely consistent with the complainant's account that anal intercourse had occurred. 25 There are a number of features of the evidence to which the appellant has drawn attention. The first of these is that Dr Caldicott found no lump on the back of the complainant's head, although the complainant complained of a sore head. As earlier observed, Dr Caldicott's evidence in this regard was not consistent with that of the complainant's mother, his sister or his sister's girlfriend, all of whom said they felt a lump on the back of his head. Indeed, the complainant's mother gave evidence that there were possibly two or three lumps. 26 The next feature of the evidence to which the appellant pointed as being unsatisfactory concerned semen staining detected on the doona on the complainant's bed. This was subjected to analysis by a forensic pathologist. Her evidence was that some of the staining could have evidenced semen from the complainant but the remainder of the staining did not evidence that semen was deposited by the complainant or the appellant. The semen must have been deposited on the doona by some third person at some indeterminate time. The complainant had been asked, when describing the offence, if he knew whether the appellant had ejaculated and responded that he did not know, so that detection of the appellant's semen, or evidence of it formed no part of the Crown case. 27 The other feature of the evidence to which the appellant has drawn attention concerns evidence given by the complainant's mother about noticing blood on the complainant's underclothes and on a white towel. According to the witness, the complainant told her that he used the towel when he had a shower after the attack. The complainant's mother said that she noticed this blood staining after the police had been to the premises and had removed things, certainly a pair of sheets and a doona. The witness did not tell the police of her discovery of the bloodstained items before she washed them, although she said that she recalled mentioning the towel to one of the police. The witness conceded in cross-examination she might not have mentioned bloodstained underpants at any time until she gave her evidence when she said, "It flashed to me." 28 As I understand the appellant's submissions, the jury ought to have concluded that the evidence of the bloodstains on the towel and on the underpants was a fabrication and so, too, was the evidence given by those witnesses who referred to a lump on the complainant's head. Then the semen staining on the doona suggested some sexual activity involving a person other than the complainant and the appellant. These features of the evidence, it is submitted, ought to have given rise to a reasonable doubt about the guilt of the appellant. 29 All these features of the evidence to which the appellant has drawn attention were matters to be considered by the jury. 30 I see no reason to doubt that they were so considered. For instance, in the summing-up the jury was reminded by the trial judge of the submission made by counsel for the appellant that the child's mother had deliberately fabricated evidence to bolster the complainant's story. 31 His Honour reminded the jury in the summing-up about the evidence concerning the semen staining on the doona and the jury was reminded of what counsel for the appellant had said, inviting the jury to draw the inference that it may have come from some third person on that particular night whose presence and activity may have explained why the complainant had the injuries which Dr Caldicott found in her examination. 32 I have considered the summing-up by the learned trial judge and in my opinion the jury had the advantage of a balanced summing-up about which no complaint is here made. It is to be observed that the jury took considerable time in arriving at a verdict and, indeed, the jury was given a Black direction in the course of its deliberations. 33 The jury sought assistance as to the meaning of "reasonable doubt". The directions by the learned trial judge were not exceptionable and as to the direction given concerning "reasonable doubt" there can be no complaint. 34 In my opinion, the verdict at which the jury eventually arrived was a verdict which was clearly open to it. I entertain no concern whatsoever about its verdict and I reject the submission that there has been any miscarriage of justice. This ground of appeal has not been established and the appeal against conviction should be dismissed.

The Crown appeal against sentence 35 The appellant is also the respondent to a Crown appeal against sentence. The Crown contends that the sentence imposed was inadequate. Notice of appeal bearing date 3 December 1999 was promptly served on 6 December 1999. Mr Game drew attention to the fact that the Crown appeal was later in point of time than the appeal lodged by the appellant but in my opinion nothing turns on this. 36 As at the date of sentence, the offence for which the respondent was convicted was in a category for which the maximum penalty provided by s 61J of the Crimes Act was twenty years penal servitude. 37 This was a retrial. The earlier trial was followed by a successful appeal against conviction based upon impermissibly prejudicial cross-examination of the respondent. Following the earlier trial and the respondent's conviction, he had been sentenced to penal servitude for five years four months with a minimum term of four years. That sentence, of course, was quashed by the Court of Criminal Appeal along with the conviction for which it was imposed. 38 Following the second conviction, Judge Job sentenced the respondent to a total sentence of four years penal servitude but, having found special circumstances, imposed a minimum term of two years and an additional term of two years. In so doing, he took into account the fact that the respondent had served nine months of the earlier sentence whilst waiting for his appeal to be heard. The sentence Judge Job imposed on 22 October 1999 was backdated to the date of the jury verdict on 20 August 1999, since which date the respondent had been in custody. The effective sentence then was one of four years nine months with an effective minimum term of two years nine months. 39 The complainant was only thirteen years of age when the offence was committed upon him. This was a circumstance of aggravation. There was a second circumstance of aggravation: he also had a serious physical disability, having a below knee amputation which necessitated that he wear a prosthesis. The sentencing judge remarked, however, that the more important aggravating factor of this offence, having regard to the circumstances in which it was committed, was the complainant's age, and I see no error in that approach. 40 The sentencing judge categorised this offence as a very serious criminal act and was unquestionably correct in this assessment. The respondent to this Crown appeal, having rendered his young victim unconscious, undressed him, used lubricant cream on him and then proceeded to violate him whilst the complainant lay helpless below him. It is inescapable that the complainant would have been adversely affected by what the respondent did to him and, indeed, the sentencing judge had a psychologist's report before him to this effect. The respondent has expressed no contrition for his crime. 41 The respondent is thirty-eight years of age. He has a relatively minor criminal record with convictions for assault, assault police, malicious damage and resist arrest. There are a number of PCA convictions as well. As the sentencing judge remarked, those earlier offences appear to have been alcohol related. This offence appears to have been committed after the respondent had been drinking alcohol but that feature is not one which affords any excuse. 42 For none of these earlier offences was the respondent sent to prison so the crime presently being considered is the first one which has led to imprisonment. 43 The sentencing judge accepted that this was not a premeditated crime and there can be no challenge to that. 44 The respondent, who had been a party to a failed marriage and to several de facto relations had, in consequence, become the father of four children, one of whom died in 1996. He presently enjoys the support of a close female friend who gave favourable evidence, so far as he is concerned, at the hearing on sentence. Through this witness a statement taken by the respondent was tendered. 45 In this statement the respondent claimed to have been sexually abused himself in his childhood which, on the respondent's description of it, was an unhappy one. He said he was put in a home after his mother died when he was five or six years of age; when he was fourteen, his music teacher started to abuse him sexually and this went on for quite a while. He said that having been faced with a retrial, he decided to get in touch with the man who had abused him so many years before and he said from this source he was sent a sum of money which was used to help to fund the retrial. He said that his solicitors questioned him about why this financial support had been forthcoming and it was in these circumstances that the earlier sexual abuse came to light. 46 Although the respondent gave no evidence on the sentencing proceedings and hence no sworn evidence that he had been sexually abused, the sentencing judge accepted the allegation of sexual abuse to be a fact. When the statement made by the respondent was tendered, it was admitted without objection so that the sentencing judge was entitled to act upon it. The sentencing judge remarked that the respondent had been in touch with the police, had made a statement to them and had said he would be prepared to give evidence against the perpetrator of the sexual abuse upon him. This Court has been referred to affidavits from Mr Barrow and Mr Pearson that deal with this feature. 47 The significance of the sexual abuse of an offender was considered by the Court of Criminal Appeal in Regina v AGR (unreported, 24 July 1998). In that case B M James J, with whom Mason P and Grove J agreed, said at p 14: "In my opinion, if it is established that a child sexual assault offender was himself sexually abused as a child and that that history of sexual abuse has contributed to the offender's own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation on penalty as reducing the offender's moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge." 48 Having referred to the principle to be found in the above passage, the sentencing judge here found that in this case the earlier sexual abuse of the respondent: "could provide an explanation for his conduct in this case and goes some way towards mitigating the offences." 49 That may be perceived to have been unduly favourable to the respondent but nevertheless the earlier sexual abuse of the respondent was a relevant subjective feature of this case to be taken into account by the sentencing judge. 50 His Honour found special circumstances by reason of the fact that the respondent can be expected to serve his sentence in protection, particularly if he gives evidence against the perpetrator of the alleged sexual abuse upon him. 51 The Crown has submitted that there is no evidence that any of the alleged sexual abuse of the respondent actually brought about the commission of the offence and that the sentence imposed was not proportionate to the objective gravity of the crime. In particular, the minimum term, it was argued, is manifestly inadequate. 52 In my opinion, this was a very lenient sentence having regard to the objective gravity of the offence. However, it has not been contended by the Crown that the sentence first imposed, being the sentence of five years four months with a minimum term of four years, was inadequate, nor would I regard it as such. When the respondent faced sentence for the second time, he had been through the ordeal of a second trial and he has spent time in custody in the service of the first sentence. 53 Once the evidence concerning the sexual abuse of the respondent was placed before the judge, this introduced a further fact that had not been before the court at the time when the respondent was first sentenced and with its introduction came a further matter to be weighed in the exercise of the sentencing discretion. 54 I find myself unable to conclude that there was error in the finding of special circumstances (see Astill (No. 2) (1992) 64 A Crim R 289 at 294). Whilst, as I have already remarked, I regard the sentence as very lenient, I have concluded that neither the total sentence nor its structure ought to attract the intervention of this Court in a Crown appeal. I would dismiss the appeal against sentence. 55 The formal orders that I propose are:

R v Rich; R v Rich

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