R v Slack

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1118 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER :

• 19 - IN THE COURT OF CRIMINAL APPEAL 60454/03

Grove J Simpson J Sperling J

Friday, 7 May 2004 Regina v Shane Robert Slack Judgment 1 Grove J: I have had the advantage of reading the judgment of Sperling J in draft form and gratefully adopt his summary of the relevant facts and circumstances. I wish to add some brief observations of my own.

CONVICTION 2 Sperling J has detailed the complainant's allegations, the appellant's denial and the matters alleged to reveal discrepancies or inconsistencies in the complainant's evidence. The lastmentioned were available and no doubt canvassed in address to the jury. In my opinion they do not mandate doubt about the core description of the offences which was available to be accepted by the jury. I agree with his Honour's reasons for proposing dismissal of the appeal against conviction.

SENTENCE 3 The learned sentencing judge noted the wide range of conduct which could constitute an offence against s 61J of the Crimes Act. It is apt to recall the definition of sexual intercourse (s 61H) includes: "…… penetration to any extent of the genitalia …… of a female person ….. " (emphasis added) 4 The case against the appellant asserted digital penetration. The complainant was asked whether she was able to say how far penetration advanced inside her vagina and she replied: "No, sorry but it was inside, yes". (T 23) 5 There was no medical evidence called by the Crown to demonstrate that damage or injury (in the physical sense) had occurred. 6 Her Honour referred to R v Dent unreported CCA 14 March 1991 where it was said that acts of digital penetration can sometimes more accurately be described and characterized as indecent assaults, albeit serious examples of such. She recorded submission by counsel that the conduct of the appellant was at the lowest end of conduct "caught by s 61J". However, her Honour did not deal with this submission in terms. She recited the maximum penalty (twenty years imprisonment) for an offence against the section but it is plain that that specification needs to comprehend significantly more serious forms of sexual misconduct: Ibbs v The Queen 1987 163 CLR 447. 7 The learned sentencing judge found that these offences were "extremely serious". I agree that they were serious but they were not extreme in the context of conduct which is punishable under s 61J. What her Honour failed to do was to contextualize these offences within the range of conduct comprehended by the statutory provision. 8 Counsel at the sentencing proceedings had made a submission that the actual penetration was to the "slightest degree and was not accompanied by physical discomfort, damage or trauma". Her Honour made no finding as to the degree of penetration. I have recited the complainant's evidence in that regard. The balance of the submission was rejectable by consideration of the facts of the offences. However, her Honour approached her rejection of the submission that there was on trauma associated with the offence "having regard to the Victim Impact Statement". As Sperling J has pointed out, such a statement may be given weight in determining the appropriate punishment, but such unsworn and untested material is unlikely to be able to contribute significantly to the finding of facts adverse to an accused which are required to be sustained by proof to the criminal standard. The two offences occurred in close time proximity and it was appropriate to treat them as instances of the one course of conduct. Whilst the crimes were far from trivial, I cannot conceive that on the facts, and having regard to the matters required to be taken into account in favour of the appellant, a head sentence of one quarter of the maximum (available for far more serious instances of sexual misconduct) could be appropriately proportionate in this case. Like the sentencing judge and Sperling J I would alter the proportion of non parole period to head sentence for the reasons which they have given. 9 I would order the appeal against conviction dismissed. Application for leave to appeal against sentence granted and appeal allowed. Sentences in the District Court quashed and in lieu thereof the appellant sentenced on each count to three years imprisonment to date from 26 June 2003 with a non parole period of eighteen months to date from 26 June 2003 and expiring on 25 December 2004. The sentences to be served concurrently. The appellant directed to be released to parole on 25 December 2004. 10 Simpson J: I agree, for the reasons given by Sperling J, that the appeal against conviction should be dismissed. I agree with both Grove J and Sperling J that, having regard to the objective criminality, the sentences imposed were manifestly excessive. I specifically agree that, serious though these offences were, they occupied a relatively low position in the hierarchy of offences against s61J of the Crimes Act 1900. In making that remark, I should not be taken to be minimising either the seriousness of the appellant's conduct, or its impact upon the complainant; but all offences must be seen on a scale of seriousness. Regrettably, courts have seen many offences against s61J which are dramatically more serious than these. I am, however, very conscious of the circumstances in which the offences were committed. The appellant was the father of the complainant's close friend, and, while she was a guest in his home, was entrusted with her care and well-being. That circumstance alone is significant in the assessment of the criminality. Criminality cannot be seen only in the light of the relatively minor degree of penetration. I also specifically agree with the observations of Sperling J concerning the use that may be made of a victim impact statement. 11 I agree that the sentences imposed in District Court should be set aside and the appellant re-sentenced. Having regard to all of the circumstances I have mentioned, and the matters recited by Sperling J, I agree with the sentences proposed by Grove J. 12 Sperling J: The appellant was charged on two counts of aggravated sexual intercourse without consent (the alleged victim being under 16 years of age), alleged to have been committed between 12 September and 31 October 2000. 13 The offences are constituted by s61J of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 20 years. 14 The appellant pleaded not guilty on both counts and was tried before Morgan DCJ and a jury in the District Court in June 2003. On 26 June 2003, the jury returned verdicts of guilty on both counts. 15 On 1 August 2003, her Honour sentenced the appellant on each count to a term of imprisonment of five years to date from 26 June 2003 (when the appellant was taken into custody), with a non-parole period of three years commencing on 26 June 2003 and expiring on 25 June 2006. 16 The appellant has appealed against conviction and has applied for leave to appeal against severity of sentence. The grounds of appeal are as follows: 1. The Appellant appeals against his conviction on the ground that the Jury's verdicts were unreasonable and cannot be supported on the evidence. 2. In the event that Ground 1. above fails, the Appellant seeks leave to appeal against the severity of the penalty imposed on the ground that it was manifestly excessive.

Ground 1: The appellant appeals against his conviction on the ground that the jury's verdicts were unreasonable and cannot be supported on the evidence 17 The principles relating to an appeal against a conviction on this ground are well settled. In Ford (NSW CCA, 9 April 1998, unreported), in a judgment in which Wood CJ at CL and Smart J concurred, I summarised what was said in M (1994) 181 CLR 487, as explained in Jones (1997) 149 ALR 598, as follows: (1) The ultimate question is whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (2) A doubt experienced by the appellate court will, generally speaking, be a doubt which a jury ought also to have experienced. (3) Doubt by the appellate court is, however, displaced where a jury's advantage in seeing and hearing the evidence explains how the jury could reasonably have been satisfied of the appellant's guilt, thus resolving the doubt experienced by the appellate court. (4) A doubt by the appellate court is not so displaced when the evidence lacks credibility for reasons which are not capable of being explained away by reference to the manner in which the evidence was given; such as where, on the record, the evidence contains discrepancies or displays inadequacies or is tainted or otherwise lacks probative force in such a way that, even making full allowance for the advantages enjoyed by the jury, the doubt persists. 18 The recent decision of the High Court in MFA (2002) 77 ALJR 139 does not require revision of what I said in Ford. 19 Both offences were alleged to have occurred on the same date. The complainant was born on 26 September 1988. The offences being alleged to have occurred in September or October 2000, she was either 11 or 12 years of age at the time of the offence. 20 At that time, the complainant was a pupil at Mount Riverview Public School. The appellant's daughter, Rebecca, was a pupil at another public school, but the two girls were members of the same netball team and also played touch football together. The appellant was then separated from his wife, who had custody of Rebecca. She and her sister stayed with the appellant every second weekend. 21 The complainant said, in her evidence, that on three or four occasions, she slept over at the appellant's house, sharing a double bed with Rebecca. 22 Contextual evidence given by the complainant and others narrowed those occasions down to three to which dates could be ascribed, namely, 15 September 2000 (the night of the opening ceremony of the Sydney Olympic Games), 19 September 2000 (linked with the complainant's use of a friend's mobile phone) and 12 October 2000 (being the night before a fete at Blaxland East Public School held on the weekend of 13-14 October 2000). 23 The complainant said that the offences occurred on the third of those occasions. She said that, after she and Rebecca had gone to bed and Rebecca had apparently gone to sleep, the appellant entered the room, knelt beside the bed, put his hands under the bedcovers, placed two fingers in the complainant's vagina and moved his fingers around for about two to three minutes. The complainant said that she tried to prevent this by moving away towards Rebecca. The appellant stopped and left the room. According to the complainant, the appellant came into the room again shortly afterwards, again knelt beside the bed, put his hands under the bedcovers, again placed two of his fingers in her vagina and moved his fingers for about a minute. The complainant said she again tried to prevent this by moving away towards Rebecca, and that the appellant stopped and left the room. She said she tried to stay awake as long as possible but eventually fell asleep. She said that, next day, she tried to keep away from the appellant and was driven home. 24 The complainant said that she was on school holidays at the time and that, on the first Wednesday after return to school, she telephoned the Kids Helpline and spoke to a male counsellor. She said she had the number either from a magazine or from a card on the refrigerator at home. She said she was pretty sure she took the number from the information card. The complainant said that school finished for her at 3 pm and that she made the call as soon as she arrived home so that she would be finished before her siblings arrived home after school. They got out at 3.30 pm. 25 Two witnesses from the Kids Helpline were called in the Crown case. Ms K L Litchfield said that the Kids Helpline is a free 24 hour telephone counselling service for five to 18 year olds across Australia. She gave the free call telephone number. She said the service was advertised in schools. Counsellors who staffed the line were required to log every call and mandatory data was recorded, such as date, time, duration of call, the main problem and the outcome of the call. Additionally, if ascertained, a record was made of age, gender and nationality. 26 After search, Ms Litchfield found a match with the field of data given to her by the investigating police, including timeframe, the presenting problem, the age and gender of the caller and that the counsellor was a male. Particulars of the call, according to the Line's records, were that it was made on 3 November 2000 at 2.35 pm New South Wales time. The caller was a female, noted as aged approximately 13 years. The presenting problem was child abuse. The counsellor's assessment was one of currently being at risk of sexual abuse. The call had lasted 31 minutes. It was made from a home phone. The perpetrator was described as a friend's father. The counsellor was noted as Mr D Shankey. 27 Mr Shankey's evidence was that he worked as a counsellor for the Kids' Helpline between March 1996 and November 2000. Shown an extract of the line records relating to the call referred to by Ms Litchfield, he said that this showed he had received a call from a girl whom he had assessed as 13 years of age, who told him that she was currently at risk of sexual abuse, that the call was received at 2:35 pm New South Wales time and that the perpetrator was a friend's father. He added that this was the first time that the girl had used the service. 28 Mr Shankey worked a four to six hour shift each day and took 50 to 60 calls per shift. It was not suggested that he had a recollection of the call. His evidence was a reconstruction from the data and his usual practice. 29 There were a number of respects in which recorded features of the telephone call which was the subject of that evidence did not match evidence given by the complainant in relation to the call which she said she made. First, school resumed on 3 October 2000 after the September-October break. The recorded telephone call was apparently made some three weeks after that rather than on the first Wednesday following the complainant's return to school as the complainant said. Secondly, the time for the call as recorded was 2.35pm, whereas the plaintiff said that the call was made after school. The complainant's finishing time at school was 3pm and the school records showed that she attended school on the day recorded for the call. Thirdly, the information card referred to by the complainant was in evidence and the free call number on it for the Helpline was incorrect, there being an extra digit in the middle of the number on the card. 30 The evidence did not disclose whether the date and time of a call to the Helpline was automatically generated in the organisation's records or was keyed in by the counsellor. Nor did it indicate whether there was a running record kept of calls by date and time, which might confirm or otherwise the date and time of the particular call. Nor was it known whether records relating to calls made from the complainant's home would confirm or otherwise any call to the Helpline on 3 November 2000 or on any other date. 31 On the hearing of the appeal, the court suggested an enquiry to see if there was a Telstra record of any call from the complainant's home phone to the Kids Helpline. (The court did not say what would necessarily be done about any such further information if it became available; that was left to be resolved later, if necessary.) However, according to information since conveyed to the court, no such records now exist, if they ever did. 32 It was submitted on behalf of the appellant that, in view of these discrepancies, a jury could not reasonably have found as a fact that a telephone call to the Kids Helpline had been made at all by the complainant, particularly when one also had regard to other weaknesses in her evidence to which I shall come. 33 The asserted further discrepancies in the complainant's evidence were as follows. The complainant believed that the first sleep-over was on a Saturday whereas 15 September 2000 was a Friday. Secondly, the complainant wrongly disagreed with the suggestion that the second sleep-over was on Tuesday 19 September 2000. Thirdly, the complainant said that the offences were committed on the occasion of the third sleep-over, but also that this was during the Olympics, before returning to school after the break and having played netball that day. However, as at 13 October 2000, the date established for the third sleep-over, the Olympics were finished, the complainant had resumed school after the break and the netball season was also over. 34 Further discrepancies asserted in relation to the complainant's evidence were as follows. It was said that it was inherently unlikely that Rebecca would have fallen asleep within five minutes of the girls going to bed, as the complainant said. The complainant initially told the investigating police that the touching was "around the vagina", whereas her evidence at the trial was of the appellant inserting his fingers into her vagina. The complainant was said to have been vague and inconsistent in relation to the time delay between the first and second incidents and her position during the second incident. Subsequent contact by the complainant with the appellant was relied on as an inconsistency and contrary to the complainant's assertion that she thereafter avoided the appellant. 35 There was delay in making a complaint. The police investigation effectively commenced when the complainant made her first electronically recorded interview on 12 March 2001: Tr 78. The complainant's mother said that she took the complainant to speak to the police after her daughter spoke to her in March 2001. That appears to be the first complaint by the child. There was no evidence of earlier complaint other than the evidence of the Kids Helpline phone call. A consequence was said to be that there was no opportunity of the complainant being examined for any possible injury. 36 Lastly, the bed in which the complainant slept was kept hard against the wall on the side where the complainant slept when visiting. That, it was said, left no room for the appellant to assault the complainant in the manner alleged. 37 The appellant gave evidence at the trial. He denied the offences. His credibility was not effectively impugned so far as appears from the printed page. 38 This was a case of oath against oath. The ultimate question was whether the jury was satisfied beyond reasonable doubt that the complainant's evidence was truthful and reliable in the respects that mattered, notwithstanding the appellant's denials on oath and the discrepancies in relation to her evidence such as they were. 39 So far as those discrepancies are concerned, the jury was not obliged to take a serious view of them. 40 As to the date of the Helpline call, it was reasonable that the complainant may have been out by a couple of weeks. As to the time of the call, the school record of her attendance on the date did not exclude the possibility that she may have left school early that day. She had reason to do so, in order to ensure that she would have time for the call before her siblings arrived home from school. It was reasonable that she may have forgotten that she left school early that day, possibly with permission, possibly without. There was also the possibility that the Helpline record of the date and / or the time of the recorded call might have been incorrectly recorded. There was nothing in the point that the counsellor may have assessed the caller to be 13 years of age whereas the complainant was by then 12 years of age. As to the mistake in the toll free number on the card attached to the refrigerator, the complainant did say that she was "pretty sure" that that is where she got the number from but she also said that she might have obtained it from a magazine. The jury was by no means precluded from finding that the call as recorded was a call made by the complainant. 41 As to other asserted discrepancies in the complainant's evidence, I make the following observations. 42 A mistake as between a Friday and a Saturday for the first sleep-over and misremembering the date of the second sleep-over could be regarded as of no consequence. Similarly, a mistake as to which of the three sleep-overs was the one in question. There was nothing inherently improbable in Rebecca being asleep within five minutes of going to bed. 43 The initial complaint of a touching "around the vagina" was not necessarily inconsistent with the complainant's evidence, depending on what she meant by "around". The acts asserted in her evidence could be described as a touching around the vagina in the sense of in the region of the vagina. 44 The vagueness and inconsistency in relation to the time between the two asserted offences and the complainant's position during the second incident were not fundamental. Vagueness in such respects did not necessarily indicate untruthfulness or unreliability in relation to the matters really at issue. 45 Contact with the appellant after the event was understandable. His daughter, Rebecca, was a close friend and confusion on the complainant's part about how to behave following such an episode would be predictable. 46 Delay in complaint was explicable on the basis of confusion and embarrassment. The loss of an opportunity of medical examination arising from such delay is without substance. There is no reason to think that medical examination would have revealed anything. 47 As for the bed being against the wall, there was also evidence also that the bed was on castors. The appellant could have pushed it a short distance from the wall, consistently with not waking Rebecca. That is not a detail that one would necessarily expect the complainant to have noticed and remembered in the circumstances. 48 With the benefit of seeing and hearing the witnesses, the jury could reasonably have been satisfied of the appellant's guilt notwithstanding these discrepancies and deficiencies, such as they were. That being the case, any doubt which this court might have from a bare reading of the transcript is displaced. 49 For these reasons, the appeal against conviction should be dismissed.

Ground 2: in the event that ground 1 above fails, the appellant seeks leave to appeal against the severity of the penalty imposed on the ground that it was manifestly excessive 50 In her remarks on sentence, the trial judge reviewed the facts conformably with the implied findings of the jury. 51 The appellant had no previous criminal history. He had been a volunteer fire fighter with the Rural Fire Service for a number of years. He had the support of his family and continued to have access to his two daughters each fortnight. He had a good working record. His employment with the State Rail Authority was suspended following an earlier jury verdict (subsequently overturned and resulting in a second trial). The appellant was being held in protective custody. There were references attesting to his good character. 52 Her Honour acknowledged the wide range of conduct which is the subject of s61J requiring careful examination of the conduct in question so that it could properly be placed in the hierarchy of seriousness of conduct caught by the section. 53 Her Honour recognised that the offence did not involve penile-vaginal sexual intercourse which, on authority, was considered to be much more serious than many of the other forms of conduct encompassed by the definition of sexual intercourse in the legislation. However, as her Honour held, the digital penetration involved a gross invasion of the complainant's physical integrity and an extreme breach of trust. The complainant's young age at 11 or 12 was also a matter of significance. 54 Her Honour acknowledged that there was no physical violence or threat of physical violence beyond that involved in the act of penetration, and that the two offences could properly be regarded as the one continuing event without any element of pre-meditation. 55 Her Honour referred to the victim impact statement made by the complainant which was dated 17 July 2003. The reference was in a particular context. The following passage indicates the context. It was submitted on behalf of the offender that although there were two sexual assaults they were isolated in that they occurred within a few minutes of each on one day only. It was further submitted that the conduct did not appear to be premeditated but rather was opportunistic and of very short duration. As well, the offender did not threaten or place pressure on [the complainant] at the time of the sexual assaults or afterwards and the actual penetration was to the slightest degree and was not accompanied by physical discomfort, damage or trauma. With respect to the latter submission, I have regard to the victim impact statement provided by [the complainant] to the Court and dated 17 July 2003. That statement eloquently and articulately describes how the commission of these offences has affected this young girl. One matter which is of comment is that since this has happened to her she has tried to harm herself on three occasions, once with Panadol and twice by cutting her wrists. She said at the time, that seemed like the only way to stop the hurt. She said she has difficulty sleeping and experiences frequent nightmares about the abuse. Reliving the experience at the trial was extremely hard and it was also very difficult getting ready for court. Having regard to the content of the Victim Impact Statement I cannot accept the submission made on behalf of the offender that there was no trauma associated with this offence. 56 It is not apparent that her Honour gave weight to the complainant's victim impact statement beyond a finding that the offence was not without some trauma to the complainant. 57 In her victim impact statement, the complainant spoke of the effect of the offences on her. She said that she became withdrawn and easily upset. She became anxious about male figures in her life, including members of her own family and, in particular, her father. She vomited after meals and became argumentative with friends and teachers. Her emotional state interfered with her schooling. She became concerned about her own worth. She had 15 sessions of counselling at fortnightly intervals but found reliving the experience upsetting. She was having difficulty sleeping and suffered from nightmares about the episode. The experience of the trial and the time leading up to the trial were distressing. She had tried to harm herself on three occasions, once with Panadol and twice by cutting her wrist, which she said seemed like the only way to stop the hurt. She had seen a psychologist on four occasions in addition to the counselling sessions and she thought she would continue with that. Before the appellant went into custody, she was worried that he would show up where she was when she was out. The complainant disclosed in the statement that she had received the assistance of a psychologist and the witness assistance officer in the preparation of the statement. 58 Harm to the victim of an offence is a relevant consideration. Henry (1999) 46 NSWLR 346 at [95], Hall (NSW CCA, 28 September 1995, unreported). It is a factor in aggravation. As such, the court must be satisfied as to the facts beyond reasonable doubt. The common law is now codified by s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 59 Her Honour would have had in mind the provisions of s28(1) of that Act which provides that, if it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after conviction but before sentence. 60 Section 28(4) provides that the court must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and must not consider a victim impact statement given by a family victim in connection with the determination of the punishment of the offender unless it considers that it is appropriate to do so. (A "family victim" is defined as meaning a member of the primary victim's immediate family where the primary victim has died as a direct result of the offence.) The implication is that a victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of punishment by sentence. 61 Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB (NSW CCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime's effect. 62 The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim's own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim. 63 I would construe the trial judge's remarks on sentence in relation to the victim impact statement as a finding of some emotional harm to the complainant, but not a finding as to the nature and extent of such harm in any particular respect. 64 Although the point is not one of special significance, I would mention that it is impermissible for a sentencing judge to treat the distress of the victim in having to give evidence as a matter of aggravation: Siganto (1998) 194 CLR 656 at [27]. I do not construe the provisions of the Crimes (Sentencing Procedure) Act 1999 as modifying that approach. Although her Honour referred to that aspect of the victim impact statement in the present case, it does not appear that any significant importance was attached to that factor by her. 65 Her Honour found special circumstances on the basis that this was the first time the offender had served a custodial sentence, that it would be served in protective custody and that an extended period of supervision was appropriate. 66 The submissions made on appeal emphasised matters taken into account by the sentencing judge and to which I have referred. It was also observed that the degree of actual penetration was unspecified in the evidence and, accordingly, had to be assumed to have been to the slightest degree. That, it was said, is consistent with the absence of evidence of physical discomfort or physical injury. I do not doubt that her Honour was alert to that consideration. 67 This case is very far from the more serious instances of offending behaviour comprehended by the section, being a case of digital penetration and penetration which has to be assumed to have been to a slight degree. As against that, there is the age of the complainant and the relationship of trust. Notwithstanding those countervailing considerations, the sentences are, in my view, manifestly excessive having regard to the objective features of the offences to which I have referred. I would accordingly allow the appeal. 68 For the purposes of re-sentencing, the objective features of the case and the subjective considerations to be brought to account are clear from what I have written to this point. I would find special circumstances on the same grounds as were found by the sentencing judge. I would impose concurrent sentences of two years imprisonment with a non-parole period in each case of one year.

(4) Sentences quashed and, in lieu thereof, re-sentence on each count to a term of two years' imprisonment, commencing on 26 June 2003, with a non-parole period of one year, commencing on 26 June 2003 and expiring on 25 June 2004;

(5) The appellant is to be released on parole at the end of the non-parole period. -oOo-

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