R v Scott [2009] VSCA 20

47 When asked where the applicant was from the time TK first went inside to change until she went back inside at her mother's request, Mrs Scott replied:

They both sort of crossed paths. Wayne went into the toilet, he's got an irritable bowel and he said his stomach was playing up so I think, in fact, when [TK] came out in her bathers, Wayne was actually in the toilet.

48 After the complainant had changed back into her clothes, she rejoined the same group of people sitting around the fire, which included the applicant. About half to three quarters of an hour later, Rikki Wells asked 'Is that [TK] over there, crying, on the step,' and TMA said 'It's probably just the girls having a deep and meaningful conversation'. Mrs Scott observed that TK seemed to be crying. Mrs Scott said that she and her husband and children left the party between 11 and 11.30 pm.

49 In cross-examination, Mrs Scott said that she saw the applicant and complainant cross paths in the living room as the applicant went inside to go to the toilet (the first meeting, as I have described it above). Mrs Scott did not think that anything was said between the applicant and the complainant - they simply walked past one another.

50 Mrs Scott said that she could specifically remember the complainant rejoining the group once she was dressed 'because she sat down and picked up an alcohol drink. Her Cruiser was under her chair'. The complainant remained sitting with the group for half an hour or forty minutes.

51 The two grounds of appeal against conviction were that

1. The verdict of guilty on count 3 is inconsistent with the verdict of not guilty on count 2.

2. In all the circumstances the verdict of the jury is-

(a) unsafe and unsatisfactory;

(b) unreasonable or cannot be supported having regard to the evidence;

and in particular, a reasonable jury properly instructed ought to have had a reasonable doubt as to the guilt of the applicant.

52 In relation to the second ground of appeal, counsel for the applicant relied on six matters which were said to make the jury verdict unsafe. First, it was said that this was an 'oath against oath' case, and that there was no reliable evidence casting doubt on the applicant's account of the events which occurred at the party.

53 Secondly, the complainant's evidence about the applicant touching her breast was discredited by the prior inconsistent statement she made about count 2, and her version of the events of the evening was inherently improbable. Counsel initially submitted that the complainant's evidence that the applicant had touched her breast while she had her back to her sister's bedroom, meant that the assault must have occurred in the living room, in full view of the people sitting under the pergola. In the course of the hearing, however, counsel conceded that TK's evidence was that count 2 had occurred while she had her back to the door of her sister's room, in the blind passage off the living room, where she could not be seen from outside the house. Sergeant Courtney's evidence was that he could not see into that area from his position in front of the television, and nor could the people sitting outside under the pergola have seen into that area.

54 Nevertheless, counsel said it was improbable that the applicant would have assaulted the complainant when Sergeant Courtney was only about three metres away watching television, and when people were sitting just outside the living room. Counsel said that the inconsistency between Sergeant Courtney's evidence that he had been watching television in the living room and the complainant's evidence that he had been asleep threw doubt on the complainant's account of the events of the evening.

55 Thirdly, counsel submitted that Sergeant Courtney's evidence that he had seen the applicant follow the complainant inside, was inconsistent with the complainant's account of the sequence of events which led up to the assault in her bedroom. It was said that Sergeant Courtney's evidence was consistent with the applicant's evidence that he had accidentally touched the complainant's breast during horse-play.

56 Fourthly, it was said that the complainant was a troubled girl who had been drinking before she made the accusations against the applicant. Counsel submitted that the complainant's proposal to go into the pool on a cold night was attention-seeking behaviour. Her allegation that she had been assaulted was simply another example of such behaviour. Counsel for the applicant said that when it was put to the complainant's mother that the only reason TK would have wanted to go into the pool on a cold night was to seek attention, the mother had agreed. Counsel said that the fact that the complainant had not wanted her sister to tell her mother of the alleged assaults supported the view she was simply engaged in attention-seeking behaviour, and did not want the matter to go any further.

57 Fifthly, counsel relied on the applicant's wife's evidence that TK had sat down beside the applicant for half to three quarters of an hour after she came outside, having changed out of her bathers.

58 Counsel for the Crown submitted that his Honour had carefully directed the jury on all relevant matters, and the matters relied upon by counsel for the applicant had been put to the jury at the trial. There was ample evidence on the basis of which the jury could have convicted the applicant.

59 In my opinion, it was open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of count 3.[1] I address each of the applicant's counsel's submissions on this matter in turn.

60 First, many, if not most, alleged sexual offences cases involve 'oath against oath' evidence. This is not surprising, because such events usually occur in private. The fact that a claim of sexual assault involves oath against oath evidence is not fatal to the Crown case; indeed, the requirement that complaints of sexual assault be corroborated has not been the law for many years.

61 The complainant's evidence received support from other evidence, some of which I refer to in more detail below. In particular, the complainant told her sister that she had been sexually assaulted by the applicant immediately after the alleged events occurred. I also note that his Honour drew the jury's attention to the fact that the case was one of oath against oath, and to the evidence of the applicant's wife supporting his version of events. His Honour gave appropriate directions to the jury on the presumption of innocence.

62 Secondly, the fact that the complainant did not call out when the alleged assault occurred need not necessarily have raised a reasonable doubt in the minds of jury members. Her explanation for not asking Sergeant Courtney for help was that she was 'in complete shock' and scared at what had occurred. It was not inherently incredible that a 14 year old girl who was assaulted by a 39 year old family friend would be in shock while the assault was occurring and at a loss as to what she should do. Further, TK told her sister, and then her mother, that she had been touched by the applicant immediately after the alleged events occurred.

63 Thirdly, the evidence does not clearly support the applicant's account of two meetings between himself and the complainant inside the house, the first meeting occurring after she had changed into her bathers and the second when she went back to change out of them. Although there are inconsistencies in the evidence of the applicant, the complainant and Sergeant Courtney as to the sequence of events, some aspects of the complainant's evidence coincide with the applicant's evidence. The complainant said that she did not have any idea where the applicant had come from when he encountered her in the corridor. This was consistent with the applicant's evidence that he had been to the toilet and had emerged from it shortly before he encountered the complainant. Sergeant Courtney testified that he saw the applicant follow the complainant into the house when she went in to change into her bathers, but that he did not see the applicant again. The applicant's evidence was that he did not follow the complainant into the house when she went inside to change into her bathers, but that their paths crossed shortly afterwards.

64 Nor do I think much can be made of the inconsistency between Sergeant Courtney's evidence that he was watching television and the complainant's statement that he was asleep. The jury may well have taken the view that Sergeant Courtney was both watching television and dozing, or that even if this was not the case, the complainant believed that he was asleep at the time.

65 Fourthly, in considering the defence claim that the complainant was seeking attention by making these allegations, the jury also had to take account of TA's evidence that the complainant did not want TA to tell their father of the assault because she did not wish to ruin the party, and that the complainant initially did not want her to tell their mother. Further, even if the jury considered that the complainant was seeking attention by going into the pool, it does not follow that they were required to regard her allegation of sexual assault as fabricated.

66 Fifthly, the applicant and his wife were the only witnesses who testified that the complainant returned to sit down beside the applicant after she had changed out of her bathers. This was denied by the complainant. The applicant said that the complainant had sat down beside him, but only for a 'brief moment'. The applicant had walked down the side of the house and out into the street because his stomach was troubling him. The applicant had then returned to the fire for a short time and left the party shortly afterwards.[2] The complainant's mother, who was said to be sitting in the group with the applicant and his wife, was not cross examined on this issue, although in her evidence-in-chief, she said that the first time she saw the complainant after she had gone inside to change out of her bathers, was when the complainant was sitting on the steps of the pergola with her sister, TA.[3]

68 Counsel for the applicant submitted that the jury's acquittal of the applicant on count 2 reflected the view that TK was not a credible witness, because of the conflict between her description of the breast touching incident at the committal hearing and at trial. It was said that TK's credit was 'indivisible', so that it was not open to the jury to treat her as an unreliable witness in relation to count 2, while at the same time accepting her evidence as to the allegation that the applicant had followed her into her bedroom and touched her pubis (count 3). The events were closely connected in time, so that if the jury members were not convinced that count 2 had occurred, they could not have concluded beyond reasonable doubt that the applicant was guilty of count 3. It was further submitted that the 'similar fact' evidence relating to count 1 - on which the applicant was also acquitted - may have impermissibly infected the jury's reasoning.

69 Counsel said that his Honour had been required to give the jury a Black direction,[4] because of their delay in reaching a unanimous verdict. The fact that they then acquitted the applicant on count 2 and convicted him on count 3, showed they must have reached a compromise verdict.

70 Counsel for the respondent submitted that there was no inconsistency between the applicant's acquittal on count 2 and his conviction on count 3. The jury might have accepted the applicant's evidence that he accidentally touched the complainant's breast, or considered that they could not be satisfied beyond reasonable doubt as to the breast touching incident, but nevertheless have been satisfied that count 3 occurred. Such an approach would have been consistent with his Honour's separate consideration direction. Alternatively, the jury might have taken a merciful view of the facts and decided to convict the applicant on only one of the counts.

71 Counsel said that there was no basis for the submission that the verdicts on counts 2 and 3 were the result of compromise. The jury retired to consider its verdict at 1.04 pm on the Friday afternoon and returned to the court a little more than three hours later, at which time they were given a Black direction. The jury members chose to return on the following Monday to recommence their deliberations. Counsel said it had taken the jury only about two hours to reach a unanimous verdict on Monday, when they returned in a refreshed state.

72 The proposition that the conviction must be set aside, because the complainant's credit was 'indivisible,' cannot be sustained. In R v Ware,[5] this Court rejected the argument that the credibility of the witness 'is an homogenous and indivisible whole',[6] so that if the applicant's guilt on one count is not established beyond reasonable doubt, the complainant's evidence on other counts is also to be regarded as insufficient for a conviction.

73 In MacKenzie v R,[7] the High Court set out the principles to be applied in determining whether verdicts are inconsistent. In that case, the appellant, a solicitor, was convicted of one count of perjury under s 327(1) of the Crimes Act 1900 (NSW), which made it an offence to knowingly make a false statement on oath concerning a matter which was material to a judicial proceeding. He was acquitted of an aggravated form of this offence, which applied where a person committed perjury intending to produce the conviction or acquittal of a person charged with a serious offence. The High Court considered a number of explanations for the different verdicts and concluded that the jury had approached its task in a proper manner and had not compromised its function.

74 In their joint judgment, Gaudron, Gummow and Kirby JJ said that, in deciding whether jury verdicts on separate counts were factually inconsistent, an appellate court must reconcile the respect which is owed to a jury as the 'constitutional' finder of fact, with the requirement to ensure that justice is done in circumstances where verdicts on different counts could not logically stand together. The test to be applied in determining whether verdicts are factually inconsistent is whether a reasonable jury, which had applied its mind to the facts of the case, could have arrived at the conclusion under challenge. However, in applying this test, respect for the jury's function has made courts reluctant to accept a submission that verdicts are inconsistent.

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. 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. 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. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman,[8] in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'

We agree with these practical and sensible remarks.[9]

75 Their Honours went on to say that there was a residue of cases in which the different jury verdicts represented 'an affront to logic and common sense'[10] which suggested that the jury had compromised its duty.

76 This is not such a case. A reasonable jury could have reached different verdicts on counts 2 and 3, for a number of reasons. Having heard the Judge's direction to consider each count separately, the jury may not have been satisfied beyond reasonable doubt that the applicant touched TK's breast in the manner described, but have had no such doubt in relation to count 3. As I remarked in R v RTM,[11] it would be perverse for the law to require the jury to be directed to consider each count separately and then to overturn the jury verdict because it had been reached by precisely that process.[12]

77 The inconsistency between TK's evidence at committal and at trial as to the manner in which the breast touching incident occurred, may have engendered reasonable doubt in the jury's mind. It may have led the jury to consider that the applicant was honestly mistaken or confused as to this event, but not about the fact that he followed her into her bedroom and put his hand down her pants.

78 The jury might also have been satisfied beyond reasonable doubt that the applicant did touch TK's breast, as she said, but not been satisfied beyond reasonable doubt that he did so intentionally. Such a verdict would have been consistent with the applicant's evidence that he did, in fact, accidentally touch the complainant on the breast. At the same time, they may have had no reasonable doubt about his intention when he followed her into the bedroom and touched her pubic area.

79 Finally, given the fact that count 3 was said to have occurred on the same evening and only shortly after count 2, the jury might have considered that justice was met by convicting him of count 3 only.

80 For these reasons, the grounds of appeal against conviction are not made out.

81 In his Honour's sentencing remarks he noted that the original presentment containing the count on which the applicant was convicted contained four additional counts concerning two other complainants. That presentment had been severed and the prosecution led no evidence on those four counts. His Honour also noted that the applicant had been tried on another presentment containing 11 counts relating to five additional complainants. He said that the applicant was found not guilty of those 11 counts 'either by jury direction, Prasad invitation or the entering of verdicts of not guilty pursuant to s 391 of the Crimes Act'.[13]

82 During the plea hearing, counsel for the applicant submitted that his Honour should draw no inferences adverse to the applicant in relation to any of the offences of which he had been acquitted, because this would devalue his acquittals. Counsel for the Crown did not disagree.

83 His Honour then raised with counsel whether he was required to sentence the applicant on the basis that the behaviour leading to his conviction on count 3 was aberrant and out of character. Reference was made to some material in the depositions relating to a relationship he had with a young girl when he was 24, which began when she was 15 and went on after she turned 16. The applicant was acquitted of charges arising out of that relationship. In discussion with counsel, his Honour said that the Crown's point might be that the applicant had had another interest in a young person, which counted against the submission that count 3 was an isolated example of aberrant activity, even if the behaviour involving the other young girl was not illegal. Nothing more was said on that matter.

84 In his sentencing reasons, the learned judge stated that he paid no regard to the charges of which the applicant was acquitted, that he accepted defence counsel's submission that he must view the offence of which the applicant was convicted as a single, isolated incident and that he drew 'no conclusion adverse to [the applicant], concerning any propensity to sexually offend against young girls'.[14]

85 His Honour noted the age difference between the applicant, who was 39, and the complainant, who was only 14. He referred to the fact that the applicant was able to gain access to the complainant because of the relationship between his and her family. His Honour said that the offending did not involve direct touching of the complainant's genitals, but that 'it is important not to subject the touching to a pedantic and precise mechanical analysis of the contact. The offence needs to be seen in its entire context'.[15] His Honour said that, given the presence of adults in the house and of a police officer nearby, the touching was 'very audacious'. He said that he considered it appropriate 'to describe the nature of the sexual touching in the circumstances as they were, as predatory'.[16]

86 His Honour took account of victim impact statements from the complainant, her sister and her mother, and referred to the fact that the complainant had been assaulted in the privacy of her bedroom. He noted that the complainant had regarded her room as soiled and had had the furnishings and some fixtures replaced.

87 His Honour then referred to the personal circumstances of the applicant as follows:

You are now 41 and work as a plant operator. Your wife gave evidence on the plea and on your trial. Your daughter gave evidence on the trial. Mr Priest submitted that I should give considerable weight to the fact that you have already suffered punishment. Exposure of the current offence led to the investigation and laying of charges concerning other allegations. The police attended your house concerning the subsequent allegations, very early in the morning. You spent 36 hours in custody. You were initially subject to strict bail conditions which prevented contact with your parents. Your enjoyment of social and sporting activities was curtailed or stopped and DHS became involved and your family was scrutinised, to ensure there was no molestation of your children. I accept that all of this would have been very traumatic for you and your family. You and your family have been subject to abuse and threats, and you were forced to change your job. I accept you have undergone much since the disclosure of the current offence and defending the charges has cost you financially.

You have an 11 year old son who has spina bifida; you and your wife share the care of this child. If you are gaoled your wife will be left alone with this burden. I accept that this hardship is relevant to penalty. I accept that to many of your friends, you are regarded as a decent and generous person. You clearly have the support of your wife and children. It is obvious that your wife is struggling to come to terms with the jury verdict. [17]

88 The learned sentencing judge accepted that the disclosure of the offence meant that the applicant would be under scrutiny by others in the future and that this reduced the risk of further offending. However, he said it was difficult to make any definitive findings about the applicant's future conduct. His Honour said that general deterrence was a very important consideration in the circumstances of this case and that it was important to impose a sentence that appropriately denounced the applicant's behaviour. He said that he had concluded that the only sentence appropriate for the applicant's offending was a term of immediate imprisonment. As I have said, the applicant was sentenced to 15 months' imprisonment with a non-parole period of six months.

89 Counsel for the applicant submitted that his Honour had imposed a manifestly excessive head sentence and non-parole period. Counsel said that, although his Honour would have 'done his best' to ignore the fact that the applicant had been charged with sexual offences against a number of young girls, the sentence which he had imposed showed that he must have been influenced by those charges.

90 Counsel submitted that the applicant's sole conviction was for an offence which was at the bottom end of the scale of seriousness, and that when the applicant's good character was taken into account, along with his family circumstances, a lower sentence should have been imposed.

91 Counsel also submitted that his Honour should have given greater weight to the fact that the applicant had suffered immensely as a result of being charged, had very strict bail conditions imposed upon him and that, as a result of the accusations made against him, the Department of Human Services had investigated his relationship with his children. He had been labelled a paedophile in the area in which he lived, and had been the subject of death threats and phone harassment. His children had also been traumatised by these events

92 Counsel also said that his Honour's description of the applicant's behaviour as 'predatory' amounted to a specific sentencing error, because this was an offence which occurred on the spur of the moment and had not been preceded by a prolonged period of grooming or planning.

93 Counsel for the Crown submitted that the offence was an audacious one in which the complainant was targeted by the applicant. The sentence imposed was lower than the median term of imprisonment imposed on those who received sentences of imprisonment for this offence, even though the applicant was not entitled to a discount for pleading guilty. His Honour's sentencing remarks showed that he had carefully considered the character and antecedents of the applicant, hardship to his family and the other mitigating factors. It was necessary for his Honour to give considerable weight to both general and specific deterrence, because of the betrayal of trust involved in the offence, the fact that the applicant was a family friend of the complainant, and the age difference between the applicant and the complainant, who was aged only 14.

94 In my opinion, the sentence imposed was not manifestly excessive. As counsel for the Crown submitted, the sentence was lower than the median sentence of imprisonment imposed for an offence of this kind.[18] Although the applicant was acquitted of two of the three counts, he was not entitled to a discount for a guilty plea in relation to the offence for which he was convicted. As his Honour remarked, the applicant offended against a 14 year old girl, who was a friend of his family. In my view, it was appropriate for the learned sentencing judge to give considerable weight to specific and general deterrence.

95 I accept that the applicant has suffered in a number of ways as a result of being convicted of this offence, and of being charged with other offences of which he was acquitted. Sadly his family, including his children, have also been affected. His wife will experience difficulties because she will be unable to keep up mortgage payments while he is in prison, and she will carry the burden of having to supervise their son when he changes his urinary catheter. However, all of these matters were taken into account by his Honour in the exercise of his sentencing discretion.

96 The question arises whether his Honour's use of the word 'predatory' to describe the offending behaviour amounted to a specific sentencing error. The term is defined in the Oxford dictionary to mean:

of, pertaining to, or involving plunder, pillage or depredation; ruthlessly acquisitive, rapacious, exploitative; sexually rapacious or exploitative; of business practice: unfairly competitive or exploitative, esp. so as to facilitate takeovers.[19]

97 In appellate decisions, the word has generally been used to describe offences against multiple complainants involving some element of premeditation, although reference has also been made to the vulnerability of the victim, the existence of a relationship of trust and/or the fact that the offence occurred in a context where the victim expected to be safe.[20] In R v Fuller-Cust,[21] the appellant was an Aboriginal man with a very difficult childhood who had committed multiple sexual offences against two victims. Eames JA said that

[t]he applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who is likely, if free, to prey on members of the public at large ... The applicant's attacks were upon persons with whom he had what he considered to be a relationship (using the term very broadly) and [were] triggered by factors deeply embedded in his past, coupled with a fear of rejection.[22]

98 Although the word 'predatory' is generally used to describe more serious offending than the offence committed by the applicant in this case, it is an adjectival description of conduct, rather than a legal term of art. It is unfortunate that his Honour used the expression in this case, but in the context in which he did so it is apparent that he meant that the offence was 'audacious' and involved a breach of trust. The learned judge specifically said that he had accepted counsel's submission that count 3 must be treated as a single, isolated incident. Having regard to his Honour's sentencing remarks as a whole, and to the fact that the sentence

imposed was well within the range imposed for such an offence, I would not accept the submission that this amounted to a specific sentencing error, or that it meant that the sentence imposed by his Honour was affected by the fact that the applicant had been charged with other sexual offences.

99 For those reasons, I do not consider that his Honour made a specific sentencing error in describing the offence as 'predatory'.

100 However, even if I am wrong in that view, I would not change the sentence imposed by his Honour. I consider that the sentence passed was well within his Honour's sentencing discretion, having regard to the nature and circumstances of the offence, and taking account of the mitigating factors on which the applicant relied. I would therefore also dismiss the application for leave to appeal against sentence.

101 The primary argument relied upon by the applicant in his appeal against conviction was that the verdict was unsafe and unsatisfactory. Notwithstanding counsel for the applicant's careful and earnest submission that the evidence was insufficient to sustain the conviction I concluded, substantially for the reasons given by Neave JA and those additional reasons of Robson AJA that this ground cannot be sustained. I also agree with Neave JA that this is not a case in which it should be concluded that the verdicts on counts 2 and 3 were inconsistent. The appeal against conviction should be dismissed.

102 In relation to the appeal against sentence I agree, substantially for the reasons given by Robson AJA, that the learned sentencing judge fell into error in characterising the applicant's conduct as 'predatory'. An offender will engage in predatory conduct in relation to a sexual offence where he or she engages in conduct prior to the commission of the offence which is intended to facilitate its commission. Such conduct will reflect an element of premeditation prior to the commission of the

103 The learned trial judge treated the applicant's conduct, which he regarded as 'predatory', as an aggravating circumstance. He was entitled to do so if there had been evidence which supported such a conclusion. Giving great weight to the view of his Honour, a very experienced trial judge, I am unable to detect any circumstances that would permit such a conclusion. The jury had acquitted the applicant on count 2. The evidence was insufficient to establish, to the criminal standard, that that the assault, the subject of count 3, was more than an opportunistic and spontaneous act which occurred in the circumstances described by Robson AJA. I would therefore allow the appeal against sentence and re-sentence the applicant as Robson AJA proposes.

104 I have had the advantage of reading in draft the reasons of Neave JA. I agree with her that the applicant's application for leave to appeal against the conviction should be dismissed.

105 I wish to add a few words on the ground that in all the circumstances the verdict of the jury is:

(b) unreasonable or cannot be supported having regard to the evidence

and in particular, a reasonable jury properly instructed ought to have had a reasonable doubt as to the guilt of the applicant.

106 In R v Vjestica,[23] this Court examined the approach required of appellate courts in considering unsafe and unsatisfactory grounds. Maxwell P (with whom

Buchanan JA and Whelan AJA agreed) said the question posed in M v The Queen,[24] namely: 'Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?'

requires the court of criminal appeal to decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard. To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt' or whether, instead, the 'path to a conviction was open'.[25]

107 In this case, the issues ultimately boiled down to the word of the applicant against the word of the complainant. Both the applicant and complainant agreed, however:

(1) An incident did take place between the applicant and the complainant in the complainant's bedroom after she had returned from outside when her mother told her she should not swim in the pool;

(2) At that time, she was in her bedroom in her bathers, about to change back into her clothes;

(3) The applicant came into her bedroom without being invited; and

(4) After the incident, he kissed her on the cheek.

108 As to the incident, the complainant says the applicant came up behind her, hugged her and put his hands down her pants and rubbed her pubic region for about thirty seconds. On the other hand, the applicant says he was talking to the complainant, stepped into the bedroom and went to pick up the complainant to carry her outside in an act of horseplay but released her when she 'stiffened up a bit'. He says his actions did not include putting his hand down her pants, although he may have accidentally touched her in the breast region when he sought to pick her up.

109 In my opinion, there was no evidence that prevented the jury from reaching a conclusion beyond reasonable doubt that the complainant's version was to be believed. The fact that the jury found the applicant not guilty of the earlier complaint was not an obstacle to the jury believing the complainant in respect of the incident in her bedroom. The fact that she may have been tipsy, that she may have caused trouble for her mother in the past, that she may have been seeking to be the centre of attention, that she may have been confused about the first incident or that she may have wrongly given evidence that Mr Courtney was asleep when she came back to her bedroom to get changed, in my opinion, did not preclude the jury, acting reasonably, from being satisfied of the applicant's guilt to the requisite standard. In my opinion, the jury was entitled to take into account, in assessing her evidence, the evidence of her immediate complaint of the assault to her sister and the evidence of her upset state. In my opinion, there was no 'solid obstacle' to the jury reaching the conclusion beyond reasonable doubt. In other words, in my opinion, 'the path to a conviction was open' to the jury.

110 The applicant submitted the trial judge made an error in describing the nature of the sexual touching in the circumstances as they were, as predatory.

111 The trial judge referred to a submission by the applicant's counsel that the trial judge must view the offence as a single, isolated incident. The trial judge accepted that submission and said he drew no conclusion adverse to the applicant concerning any propensity to sexually offend against young girls. He went on to say:

However, there is little that explains the offence. There is no evidence of remorse. Your counsel submitted that I should view the offending as following after horse-play rather than predatory behaviour.[26]

Whether the offending was preceded by horse-play or not, makes little difference in my view. I am left with the stark facts of the incident. You have touched the victim for your sexual gratification. You were 39 and she was still only 14. You were able to gain access to her because of the relationship between your family and hers. She and others trusted you and you betrayed that trust. You followed her into her bedroom. It is not surprising that she was frightened and shocked by your behaviour. I accept that you had been drinking, but that does not explain or mitigate your behaviour.

Your counsel relied on the fact that the touching was limited to the pubic area. Of course, this needs to be kept in mind. Had you directly touched her genitals then the offending would have been worse, if I understand Mr Priest's submission correctly. I accept this, however, it is important not to subject the touching to a pedantic and precise mechanical analysis of the contact. The offence needs to be seen in its entire context.

The evidence elicited by your counsel on the trial was that the complainant or victim was a troubled and rebellious young girl in need of adult assistance and guidance. She seemed to have lacked parental support or management. It is not clear to me how well you knew the victim at the time of the offence, and accordingly, I draw no inference that you approached her, knowing of her rebellious and troubled history.

Given the circumstances of the touching, particularly the presence of adults in the house, and a police officer nearby, it is clear that the touching was very audacious. Despite the submission of Mr Priest, that I should not infer that your approach was predatory, I consider it appropriate to describe the nature of the sexual touching in the circumstances as they were, as predatory.[27]

113 In R v Fuller-Cust,[28] this Court acknowledged that the presence of a predatory feature in a sexual assault case would be an aggravating factor. Batt JA, with whom Eames JA and O'Bryan AJA agreed, said:

The applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who was likely, if free, to prey on members of the public at large. The absence of such an element in the offending is not a mitigating factor, as such. Rather, the presence of a predatory feature would be an aggravating factor. But the absence of this factor is relevant to the question of rehabilitation.[29]

114 In that case, this Court appears to have treated predatory as an appropriate description where the offender has planned or is predisposed to sexually assault or is a threat to others to do so.[30] In R v KU[31] the Queensland Court of Appeal considered whether a defendant's rape had been predatory:

No evidence emerged during this assessment of any specific planning by [the defendant] for this offence to occur, suggesting the behaviour was situational and opportunistic rather than predatory in nature.[32]

115 Again the element of planning is identified by the court as an indicator of predatory behaviour. Nevertheless, opportunistic behaviour may be predatory if the person is predisposed to take advantage of such situations. The Oxford Dictionary definition of predatory includes 'of an animal: that preys upon other animals'. In my opinion, the hallmark of a sexual predator would be one who preys on his sexual victims.[33]

116 A distinction, however, needs to be drawn between a person who is a sexual predator by nature and the acts of a sexual predator. The mere fact that a person may have done what a predator would do does not necessarily make him a predator.

117 As indicated above, the trial judge did refer to several factors that he considered relevant in assessing the applicant's conduct. These included that the applicant touched the victim for his own sexual gratification; that he was 39 and she was still only 14 at the time of the incident; that the applicant was able to gain access to her because of the relationship between his family and hers; that she and others trusted him; that he betrayed that trust and that he followed her into her bedroom.

118 In my opinion, none of those matters by themselves necessarily constitute predatory conduct in the sense referred to in R v Fuller-Cust. On the other hand, each may be present in a sexual predator in the sense I have discussed. I consider the critical element is whether there was evidence that satisfied the trial judge, beyond reasonable doubt, that the applicant preyed on the victim as opposed to engaged in an isolated incident where a bit of horseplay had got out of hand.

119 The applicant had been charged and acquitted of sexual assault upon another young girl at the trial. He had also been charged and acquitted of other alleged sexual assaults. The trial judge, however, quite properly said he drew no conclusion adverse to the applicant concerning any propensity to offend against young girls. I accept that the exact meaning of predatory in the context of a sexual assault may be uncertain in some circumstances. But, in my view, it did not apply to a single, isolated incident where the offence followed after horseplay and there is no evidence of any prior intention on the part of the applicant to sexually assault the complainant.

120 I have no doubt that the trial judge, in finding that the applicant's conduct was predatory, was making that finding as an aggravating factor. In doing so, in my opinion, the trial judge erred. In those circumstances, I would grant leave to appeal against sentence, allow the appeal and re-sentence the applicant.

121 Neave JA has referred to the relevant mitigating factors and circumstances of the applicant which ought to be taken into account in determining an appropriate sentence. There was a gross breach of trust by the applicant. The consequences of the applicant's actions have been terrible for both his victim and her family. His actions were opportunistic, selfish, thoughtless and deserve the strongest condemnation.

122 Nevertheless, bearing in mind the consequences which have already been visited upon the applicant by reason of the charges against him, including not being able to be in the same room as his children unless accompanied by an adult and the other matters referred to by his counsel, I would impose a head sentence of twelve months. On the 4th April 2008, the applicant was granted bail by this court pending a determination of his appeal. Allowing for pre sentence detention the applicant has thus served slightly more than five weeks of his sentence. Having regard to the personal and mitigating circumstances of the applicant set out in the reasons of Neave JA, I would therefore order that ten months and three weeks of that sentence be wholly suspended. Consequently the applicant will not be required to serve any further portion of his sentence in custody.

[1] M v R [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

[2] In relation to Mrs Scott's evidence on this point, see [50] above.

[3] This evidence is consistent with the account given by MT.

[4] Black v R [1993] HCA 71; (1993) 179 CLR 44.

[5] [1997] 1 VR 647.

[8] (1987) 44 SASR 591, 593.

[9] MacKenzie v R [1996] 190 CLR 348, 367- 368 (citations omitted).

[11] [2006] VSCA 170.

[18] Sentencing Advisory Council, Sentencing Snapshot No 24: Sentencing Trends for Indecent Act with a Child Aged Under 16 in the Higher Courts of Victoria, 2001-02 to 2005-06. Over the five year period in which the sentencing statistics were collected, around four in ten people received a period of imprisonment, with younger people less likely to be sentenced to a term of imprisonment. The median term of principal imprisonment was one year and six months.

[19] Shorter Oxford English Dictionary (6th Ed, 2007) 2321.

[20] DPP v Foot [1999] VSCA 147, [20] (Phillips CJ) (pre-meditated offending against two young girls in the toilet at their primary school); DPP v Riddle [2002] VSCA 153, [30] (Chernov JA) (several children offended against over 17 years, involving serious breaches of trust); R v D [2003] QCA 347; (2003) 139 A Crim R 509, 518(Atkinson J) (several young complainants in circumstances where they were entitled to feel safe); R v Weldon [2006] QCA 504, BC200610017, [16] (Keane JA) (multiple complainants and betrayal of parental trust); Goldsmith v Tasmania [2006] TASSC 86, BC200608712, [8] (Slicer J) (multiple counts of offending against adolescent boys in youth organisation, involving breach of trust).

[21] [2002] VSCA 168; (2002) 6 VR 496.

[23] [2008] VSCA 47 (Maxwell P, with whom Buchanan JA and Whelan AJA agreed).

[24] [1994] HCA 63; (1981) 181 CLR 487.

[25] [2008] VSCA 47 [63].

[30] Ibid see [33], [121], [123] and [147].

[31] [2008] QCA 154.

[33] See also The Diocese of Dunedin [1999] NZBSA 122; R v Armfield [2005] SASC 108; Tector v Regina [2008] NSWCCA 151; R v Boys [1999] NSWCCA 11; R v Reyes [2005] NSWCCA 218.