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[2008] QCA 249
Court of Appeal (Qld)
2008-08-22
Keane and Fraser JJA and Fryberg JSeparate reasons for judgment of each, member of the Court, each concurring as to the orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Sutton [2008] QCA 249
PARTIES: R v SUTTON, Harold Edwin (appellant)
FILE NO/S: CA No 119 of 2008 / DC No 375 of 2007
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Townsville
DELIVERED ON: 22 August 2008
DELIVERED AT: Brisbane
HEARING DATE: 19 June 2008
JUDGES: Keane and Fraser JJA and Fryberg J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: Appeal against conviction dismissedApplication for leave to appeal against sentence refused
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where the learned trial judge directed the jury that the mere passive acquiescence of the complainant to "something that might overwhelm him" is insufficient to establish consent – whether the learned trial judge misdirected the jury / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of indecent assault – where the appellant was acquitted on another count of indecent assault – where the jury were unable to reach a verdict on a count of rape – whether the verdicts rendered by the jury were reconcilable / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where the appellant was 54 years old at the time of offending – where the complainant was 16 years old at the time of the offending – where the complainant was entrusted into the care of the appellant by his mother – where there was no force used by the appellant – where the appellant was sentenced to two years imprisonment with a recommendation that he be considered eligible for parole after serving four months – whether the sentence imposed was in the circumstances manifestly excessive / Criminal Code Act 1899 (Qld), s 245, s 348, s 352(1)(a) / Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied / R v Jones [2003] QCA 450, applied / R v Olugboja [1982] 1 QB 320, considered / R v Owen [2008] QCA 171, distinguished
COUNSEL: P J Davis SC for the appellant / M B Lehane for the respondent
SOLICITORS: Gilshenan & Luton Legal Practice for the appellant / Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: On 30 April 2008 the appellant was convicted upon the verdict of a jury of one count of indecent assault in contravention of s 352(1)(a) of the Criminal Code 1899 (Qld). He was acquitted on another count of indecent assault; and the jury were unable to reach a verdict on a count of rape. The appellant was sentenced to two years imprisonment, and the learned trial judge recommended that he be considered for eligibility for parole after four months.
The appellant has appealed against his conviction on a number of grounds which, broadly speaking, impugn the directions given to the jury by the learned trial judge and the reasonableness of the jury's verdict. The appellant also seeks leave to appeal against his sentence. It is necessary to deal first with the challenge to the conviction.
I will discuss the appellant's grounds of appeal against his conviction after first summarising the Crown case and the evidence given at trial and the material passages in the directions given to the jury by the learned trial judge.
The case at trial
The Crown case was that, on 16 September 2006, at Ayr, the appellant indecently assaulted the complainant twice, first by touching the complainant's penis with his hand (count 1), and later with his mouth (count 3). It was also alleged that the appellant raped the complainant by inserting his finger into the complainant's anus (count 2).
The complainant was a male who was 16 years old on the date in question. Some weeks earlier, he had been suffering from a sore neck, and so his mother arranged for him to have a series of massages from the appellant. The appellant carried on business as a masseur from his home.
On the first visit, the complainant attended at the appellant's home with his mother who was present while the appellant gave him a massage for about an hour using massage oil, with the complainant stripped down to his underpants. This was described by the complainant, in evidence, as a "full body massage", but the appellant did not massage him over his underpants.
On the occasion of a second visit, about a month later, the complainant's mother stayed only long enough to pay for the complainant's massage and to arrange for the appellant to drive the complainant home.
The complainant then stripped down to his underwear, as he had done on the previous occasion. The appellant then told him that he had to get completely undressed. The complainant took his underwear off. The appellant locked the front door of the premises. He then began massaging the complainant's neck. He then massaged the complainant's legs and then his buttocks using massage oil. While this was going on, the appellant talked to the complainant about the complainant's sex life. The appellant touched the complainant's scrotum several times while massaging his thigh.
After this had continued for 15 to 20 minutes, the appellant told the complainant to turn over. The appellant then began to rub the complainant's penis. The complainant achieved erection once this began. The complainant did not tell the appellant to stop touching his penis. In evidence, the complainant said: "… at that point in time I just didn't know what was going on and I didn't want to think about it."
After the appellant masturbated the complainant for 15 to 20 minutes, the appellant inserted a finger into the complainant's anus, and started giving the complainant oral sex. This went on until the complainant ejaculated.
The appellant then used paper towels to wipe massage oil and semen off the complainant's body. The appellant then helped the complainant to do a number of muscular stretches before the complainant got dressed.
The appellant drove the complainant home. While the appellant was driving he put his left hand on the complainant's right thigh. He asked if the complainant would be booking in for another massage, and the complainant replied: "No."
At home, the complainant had a shower and did some household chores. He then rang his friend, Jack, and told him that the appellant had "sucked me off and inserted a finger into my anus." The complainant then sent his mother a text message asking her to call him "as soon as you can". When his mother called him approximately half an hour later, he told her what had happened. When his mother returned home, they called the police. She said that the complainant appeared to be upset: he was pale and shaking.
It may be noted here that, on the occasion of the first visit, the complainant's mother had informed the appellant that the complainant had lately been withdrawn and depressed.
In cross-examination of the complainant by the appellant's counsel, there was no suggestion that the acts of which the complainant gave evidence did not occur. It was, however, put to the complainant that he had consented to what the appellant did.
It was suggested to the complainant that the complainant had told the appellant while the massage was proceeding that "head-jobs" were his favourite form of sexual activity. The complainant denied that he had said this. He did admit that he told the appellant that he found the stroking of his scrotum arousing; and that the appellant asked him how big his penis was and that he told him.
The complainant denied the suggestion put to him that he consented to the appellant's sexual acts, but admitted that he did not, at any stage, tell the appellant to stop or otherwise demonstrate a lack of consent to what the appellant was doing. The complainant acknowledged that there was nothing to prevent him from leaving the bed, getting dressed and going home. He also acknowledged that he had been in no way threatened by the appellant. He said, however, that he felt intimidated by the appellant's relatively greater physical size.
The appellant did not give or call evidence.
The learned trial judge's directions to the jury
The learned trial judge directed the jury that the issues for their determination were whether the complainant had consented to what occurred, and whether the Crown had negatived beyond reasonable doubt the possibility that the appellant had honestly and reasonably believed that the complainant consented to the appellant's touching.
The jury were told by the learned trial judge's directions in relation to count 1 that, if they were not satisfied beyond reasonable doubt that the complainant did not consciously permit the appellant to touch his penis when that touching first occurred, then they should acquit the appellant of the charge in count 1. In this regard, his Honour said:
"So far as these acts are concerned, members of the jury, the offence can be committed at the commencement of them so that if there was masturbation for 15 minutes the physical contact, the consent and the reasonableness of a belief can be directed to contact at the outset, the hypothesis that attitudes might change is something that you can consider. It hasn't been suggested that there ought to be a temporal, that is a timing analysis of this by either counsel here but I'm just instructing you as a technical matter that if the touching or an insertion of a finger took place at a time when there was no consent to it and the Crown have satisfied you there was no honest or reasonable belief in consent then that is sufficient so far as the offence is concerned."
The appellant's Counsel at trial made no complaint about, and did not seek any redirection in relation to, this statement to the jury.
The learned trial judge went on to say to the jury:
"So the focuses of attention, members of the jury, in relation to these 3 counts is as both counsel have appropriately identified, was there a consent and if 'no' to that question then you go on to consider the question of whether the Crown have excluded an honest or reasonable belief in consent in relation to each of the offences.
You decide this issue by reference to the evidence that you have before you. You'll not find it surprising that you have the capacity to accept or reject the whole or part of any evidence that is placed before you. You may draw inferences from facts that you find to be proved. You must not speculate. The defence here ask you to draw a positive inference that there was consent or a positive inference from the facts that the accused in the alternative had an honest and reasonable belief. Whilst they make that submission as it were, as a finding that you would make, of course, you would keep in mind that the onus of proof in regard to both of those issues is upon the Crown."
His Honour further explained the issues to the jury in the following passage:
"The necessity to establish as an element non-consent applies to each one of the counts. I include in that count 3, members of the jury. Subject to another qualification there would be an unlawful assault unless [the complainant] consented. That qualification, as you’ve already been correctly informed, is that the Crown must also in this case for all three counts establish beyond a reasonable doubt that there was not only non-consent by [the complainant], but you all must consider a further matter in relation to this aspect in relation to each of the counts. That is because, members of the jury, that our law provides that a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.
You get to this point, members of the jury, if you're satisfied in relation to any one of the 3 counts that the accused did not consent. In other words, you consider it in every case if you consider that - now the first issue is whether you're satisfied that he did not consent. If in any one of the three counts or all of them you get to the point of saying well we're satisfied that he did not consent in the whole of the circumstances you then go on to consider in the context of the case, if you get to that point of considering that if he wasn't consenting whether the defendant in the circumstances honestly and reasonably believed that the complainant … was consenting.
Now on the evidence in that regard, members of the jury, there was no evidence of any physical resistance. There was, on the other hand, no direct discussion seeking consent. There was no oral statement made by anyone directed to that subject matter. The circumstances include the situation in which the accused was involved in his relationship of what I'll call loosely a professional kind with the complainant. It would include as a circumstance the significant age disparity. This is going to the honesty and reasonableness of a belief, members of the jury, and the fact that it's agreed that the matters arose after there had been discussion in relation to sexual matters not directly aligned to where the accused querying whether the complainant would be agreeable to contact of that kind, but it included conversation that there had been - that he was stimulated by some physical contact in the scrotal area.
The circumstances may lead to a conclusion that there was a deliberate endeavour here for an arousal that only goes to the question, members of the jury, if there was no physical consent, whether in those circumstances including those ingredients and any other ingredient that you consider important that you may consider in examining the question of whether the Crown have excluded to the standard I've mentioned the prospect that the accused did not - this is what they need to establish - hold an honest and reasonable belief that the complainant was consenting."
The learned trial judge returned to the issue of consent in the following terms:
"The question you're asked is with respect to the honest and reasonable but mistaken belief - which has been generally described in the course of addresses and my summing up as the secondary core question to be addressed by you the jury - that is, in the context that the first inquiry on each count is whether or not you're satisfied to the requisite standard that the complainant did not consent. If you're not satisfied about that, well, your duty, of course, is to acquit. You don't need to consider the secondary question if you get to that state of mind. If, on the other hand, on an appraisal of the whole of the evidence and the whole of the circumstances, you come to the conclusion that you're satisfied beyond reasonable doubt in the circumstances that there was a basis for - there is a basis for you to accept that there was no real - no consent given, that consent refers to a state of mind of the complainant. That he has to in his mind be agreeing with what was going on rather than mere passive acquiescence to something that might overwhelm him. And it is submitted on behalf of the defence, the accused, you'd reach that he was positively consenting but, as it has been explained to you before and in this context, that it's the Crown's obligation to prove that he was not as the foundation plank and before further consideration be given - is given to the secondary question.
And the secondary question arises because our law provides that a person who does an act under an honest and reasonable but mistaken belief as to the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist. As I said to you yesterday, in the context of this particular case and the separate counts, one of the circumstances vary and you consider this particularly in the context of the honesty and reasonableness as to whether there has been - this defence has been excluded. If you get to the point of concluding that there was non-consent, whether the defendant - you then consider whether the defendant in the circumstances honestly and reasonably believed the complainant was consenting.
On the evidence, I pointed out yesterday, there was no physical resistance. I pointed out that there was no physical - there was no discussion as to whether certain things might be permitted. I'm trying to put this as neutrally as I can. There was the significant age disparity and the circumstances that took place - circumstances in which the events took place. There was, of course, an agreement that certain matters in a sexual context were raised in conversation, of course, initially by the - it's agreed on the evidence - by the defendant but in a discussion as to arousal through scrotal touching was certainly one of the matters that needed to be - was mentioned by the complainant himself.
Now, whilst there was no resistance - and if I can put it this way as neutrally as I can - that the complainant says he was overwhelmed by the events. You look at what took place, at the facts as you find them to be, whether - it doesn't appear to be suggested there was any - there was acquiescence. If you doubt whether - have a doubt whether some of the other matters I referred to you in cross-examination that the complainant disagreed with, whether those things took place, well, that might show that there was more than acquiescence, that he was actually more than willing and active and wanting to be a participant in what took place because it was asserted in cross-examination that there had been things which would've probably directly led to an impression of consent."
The learned trial judge also gave the jury a general direction as follows:
"There are here, members of the jury, separate trials going on. There are, of course, separate defined sexual acts that you have and there is a hypothesis here that you may take a different view to the evidence in relation to each of the offences, depending on how you appraise the evidence.
That is certainly not to be regarded as any form of encouragement for you to each come to different conclusions. It is for you, members of the jury, to consider the evidence separately, but not to say to yourself, 'Look, we found him guilty or not guilty on count 1, therefore that should be the verdict in relation to count 2 or count 3.' Or if you find him guilty in count 3, that that should be on the working backwards. The way you go about it is entirely for you as to whether you look at this act or that act first. They are matters for you. But my direction really is, do not allow the verdict on one count to influence your decision in relation to another.
If you found however, that the complainant was unreliable, you doubted his integrity or honesty in relation to what he said about consent on one of the offences, that is something that you can give some consideration to in looking at the issues in relation to the other counts, but it is not to be determinative of the issue because, as I say, it is the evidence that pertains to each of the counts separately considered that is of overall importance, subject to the capacity to have some regard, if you find him unreliable in relation to one or two, consider that in relation to the remaining matter."
The verdicts
The jury were unable to reach a verdict on count 2 on the indictment, the count of rape.
The jury convicted the appellant on count 1, the count relating to the manual touching of the complainant's penis, but acquitted the appellant on count 3, the count relating to oral sex.
The arguments on appeal
The grounds of appeal agitated on behalf of the appellant were argued under two broad headings: the first concerned the learned trial judge's directions to the jury; and the second concerned the reasonableness of the jury's verdict. I shall deal with these in turn.
The trial judge's directions
The appellant contends that the learned trial judge misdirected the jury on the issue of consent in three respects: the first being that his Honour conveyed to the jury that, as the complainant had said that he did not consent, the only live issue was the defence of mistake; and the second being that his Honour should have directed the jury that "passive acquiescence" is consent for the purpose of the law relating to indecent assault. The third contention was raised by leave during the course of the hearing of the appeal; it was that his Honour failed properly to identify the act which constituted count 1 on the indictment.
Consent a non-issue?
The first of the appellant's criticisms of the learned trial judge's directions proceeds upon a distinctly selective reading of the learned trial judge's directions to the jury. On any fair reading of the passages set out above in paragraphs [21] to [23], it is clear that his Honour made it plain to the jury that whether or not the complainant consented to the appellant's acts depended upon whether or not they accepted the complainant's evidence, and that this question was a matter for decision by them.
His Honour drew to the jury's attention those matters which might rationally tend to cast doubt on the complainant's evidence that he did not consent to the appellant's touching his penis. There can be no doubt that the jury understood that the evidence of the complainant needed to be carefully scrutinised in order to determine whether the complainant's evidence that he did not consent was reliable.
I would reject this criticism of the learned trial judge's directions.
Should the judge have directed the jury that submission is consent?
The second point made by the appellant is that "passive acquiescence" is to be regarded as consent for the purposes of the law as to assault, and that the learned trial judge misdirected the jury by suggesting that if the complainant merely submitted to the touching of his penis by the appellant, that would not amount to consent.
On the appellant's behalf, Mr Davis SC began his submission on this point by pointing out that the idea of "consent" relevant to an alleged contravention of s 352(1)(a) of the Criminal Code is not elaborated by the provisions of s 348 of the Criminal Code which relate to the offence of rape under s 349 of the Criminal Code. An unlawful assault for the purposes of s 352(1)(a) of the Criminal Code involves an assault relevantly defined in s 245 as involving the touching of the "person of another … without the other person's consent, or with the other person's consent if the consent is obtained by fraud …" Mr Davis made the point that there was no suggestion in this case that the complainant's consent had been vitiated by fraud.
Mr Davis submitted that mere submission by a complainant to acts is to be regarded as consent. In this regard, he cited the view of Jackson CJ in Holman v The Queen,1 where his Honour said: "… consent … may be hesitant, reluctant, grudging or tearful, but if [a woman] consciously permits [intercourse] … it is not rape."
Mr Davis submitted that, prior to the decision of the Court of Appeal of England and Wales in R v Olugboja,2 it had been thought that mere submission to an assault was to be regarded as consent where the position was not affected by statutory provisions such as s 348 of the Criminal Code. Mr Davis argued that the notion of "consent" used in s 245 of the Criminal Code should be understood as including mere submission to the acts of another, and that his Honour erred in directing the jury otherwise.
It must be said immediately that the reasons of the Court of Appeal in R v Olugboja do not reveal any indication, either that their Honours understood themselves to be taking the law in a new direction, or that they accepted the proposition that mere submission is to be regarded as consent. The Court said:
"Although 'consent' is an equally common word it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. We do not think that the issue of consent should be left to a jury without some further direction. What this should be will depend on the circumstances of each case. The jury will have been reminded of the burden and standard of proof required to establish each ingredient, including lack of consent, of the offence. They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent: per Coleridge J in Reg v Day, 9 C & P 722, 724. In the majority of cases, where the allegation is that the intercourse was had by force or the fear of force, such a direction coupled with specific references to, and comments on, the evidence relevant to the absence of real consent will clearly suffice. In the less common type of case where intercourse takes place after threats not involving violence or the fear of it, as in the examples given by Mrs Trewella to which we have referred earlier in this judgment, we think that an appropriate direction to a jury will have to be fuller. They should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances; and in particular, the events leading up to the act and her reaction to them showing their impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place. In addition to the general direction about consent which we have outlined, the jury will probably be helped in such cases by being reminded that in this context consent does comprehend the wide spectrum of states of mind to which we earlier referred, and that the dividing line in such circumstances between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of that case."3
The Crown must establish beyond reasonable doubt the absence of consent to the acts of the accused said to constitute the assault. As is apparent from the passage cited from the judgment in R v Olugboja, mere submission will not always involve consent. A trial judge's direction to the jury must be attuned to the specific issues actually raised by the evidence in the case.
It is to be emphasised that absence of consent as an element of an assault under the Criminal Code is concerned with the complainant's state of mind. One must not confuse the fact of the state of mind of the complainant with the evidence by which that fact may be proved. A complainant's state of mind may be proved directly by a complainant's evidence about it, as well as by inference from the complainant's overt acts or statements (or the lack thereof). What the learned trial judge told the jury in the passage set out at paragraph [23] above was not apt to suggest that absence of consent was established by the absence of express or overt consent. His Honour was merely making the point that the absence of active resistance did not itself necessarily establish that the complainant had consented to the assault.
In my respectful opinion, the learned trial judge's directions to the jury were appropriate to focus the jury upon what was relevant to the Crown's attempt to negative consent on the part of the complainant for the purposes of count 1. The jury were told that the question for their determination turned upon their assessment of whether the complainant consciously decided in his mind to agree to the appellant's initial touching of his penis or found himself being touched in a way he had not made a decision to permit. That question fell to be resolved in the light of the evidence of an intimate touching of a youth by an older man in circumstances where the touching was both uninvited and inappropriate to the occasion on which it occurred. The resolution of that question was then a task for the common sense of the jury. That task was unlikely to have been more accurately focused by further explanation by his Honour. His Honour's reference to consent as actual agreement to what was being done as something different from "passive acquiescence to something that might overwhelm him" was, I think, sufficient to convey to the jury the true nature of the issue for their determination.
On behalf of the appellant, it was also argued that the reference by his Honour to the complainant being "overwhelmed" was apt to introduce a false issue as to whether consent had been obtained by intimidation. But it is clear, I think, that his Honour was, by this reference, simply adverting to the complainant's explanation for why he did not conduct himself overtly in accordance with his state of mind.
I reject the submission made by the appellant on this point.
What was the act?
The third criticism of the learned trial judge's directions to the jury made by the appellant is that his Honour failed to ensure that the jury understood that it was the appellant's touching of the complainant's penis, rather than the brushing of his scrotum, which constituted count 1 on the indictment. This criticism is without substance.
His Honour's directions expressly distinguished between "scrotum" and "penis". The jury could have been left in no doubt that it was the touching of the complainant's penis which was the relevant act for the purposes of count 1 on the indictment.
I reject the appellant's argument on this point.
The reasonableness of the jury's verdict
Mr Davis abandoned an argument under this heading that the verdict of "guilty" on count 1 is inconsistent with the jury's acquittal on count 3 and their failure to reach a verdict on count 2. In my respectful opinion, he was plainly right to take that course. Whether the verdicts were inconsistent is a question of "logic and reasonableness".4 The differences between the verdicts are readily reconcilable in that, in relation to count 1, there was nothing in the evidence from which it might reasonably have been inferred by the appellant that the complainant had indicated that he was disposed to consent to the deliberate grabbing of his penis, whereas the complainant's failure to complain thereafter gave rise to a real possibility that he consented to, or might reasonably have been supposed to have consented to, subsequent intimacies.
The argument under this heading which was pressed in this Court was that the jury could not have been reasonably satisfied on the whole of the evidence of the appellant's guilt beyond reasonable doubt of the offence charged in count 1. In this regard, Mr Davis pointed to the absence of any overt resistance or protest by the complainant at any time, and argued that the jury could not have been satisfied beyond reasonable doubt that the touching charged in count 1 occurred without the conscious agreement of the complainant. In truth, on the uncontradicted evidence that is a difficult contention to sustain.
The case for the Crown in relation to count 1 was that the offence was complete on the first touching of the complainant's penis. The evidence of the complainant as to what occurred in this regard was uncontradicted. There was no evidence which would suggest any real opportunity for a conscious decision on the part of the complainant to the unheralded and unbidden touching of his penis.
There is no reason why the jury should have doubted the uncontradicted evidence of the complainant. They may well have considered the complainant's prompt complaint, and his evident frankness in acknowledging his own failure to manifest any dissent in respect of what was happening to him, as giving them grounds for confidence in his evidence. The jury were thus entitled to act upon his evidence as excluding any doubt about the absence of consent on his part to what occurred, and to exclude any possible basis for a reasonable but mistaken belief on the appellant's part that the complainant gave his consent to the appellant's touching his penis.
Accordingly, I reject the appellant's argument under this heading.
Sentence
The appellant was 54 years old at the time of the offence and 56 years old at the date of sentence. He has been in practice as a masseur for 22 years. He has no criminal history. Many references were tendered which speak well of him as a good member of society.
As the learned trial judge noted, there was no force used by the appellant; and there was no evidence of "any adverse impact upon the complainant."
As a result of this offence, the appellant suffered an interruption in the practice of his profession and a consequent loss of income. It was suggested on his behalf to the learned sentencing judge that, in light of the adverse consequences of his misconduct for the appellant, justice could be served by a "sentence … suspended, wholly suspended".
In this Court, the appellant argues that the sentence was manifestly excessive. It is said that the basis on which he was convicted on count 1 was that the only assault relied upon by the Crown was the initial touching of the complainant's penis. He argues that he should have been, but was not, sentenced on the basis that all sexual activity which occurred after the appellant first touched the complainant's penis was consensual, or at least that it was not criminal. On that basis, a sentence of two years imprisonment is said to be outside the range of a sound exercise of the sentencing discretion.
In my respectful opinion, the sentence imposed on the appellant was not so severe as to suggest that the appellant was being punished by the learned trial judge for an offence other than that of which the appellant was convicted. In this regard, it must be recognised that the offence of which the appellant was convicted involved the uninvited sexual abuse of a minor by a person to whose care he had been entrusted by the minor's mother. The complainant was in a situation of considerable vulnerability: as a result of his obedience to the appellant's direction he was naked. There was a disparity in age between himself and the appellant, and the appellant had locked the door to the premises. The appellant was clearly engaged in a premeditated attempt to seduce the youth in circumstances where he knew that the complainant had recently been withdrawn and depressed. Finally, there was a complete absence of remorse on the appellant's part in relation to his abuse of the position of trust which he enjoyed by virtue of his occupation.
It is true, as the appellant submits, that there is no decision of this Court comparable with this case which establishes that the sentence imposed in this case is within the appropriate range. On the other hand, there is no decision of this Court which suggests that the sentence imposed here is outside the proper range.
This case stands in stark contrast with R v Owen5 to which the Court was referred by Counsel for the appellant. In that case, a massage therapist was convicted of one count of sexual assault consisting of brushing the pubic hair of a female customer with his lips in the course of a massage. The offender was sentenced to imprisonment for nine months. His appeal against sentence was allowed to the extent of ordering his period of imprisonment to be suspended after 25 days in custody. As McMurdo P observed, this was a case where the victim was "an adult woman with some worldly experience" being the mother of three children,6 and the offensive contact was so fleeting as to be virtually evanescent as a result of a momentary and uncharacteristic excess of sexual desire for which he was unequivocally apologetic when she complained to him of his conduct.
That it was open to the sentencing judge to impose a term of actual imprisonment, there can be no doubt: it is well-established that an adult who sexually abuses a minor must expect to be sentenced to a term of imprisonment in the absence of exceptional circumstances.7 The maximum penalty which might have been imposed for this offence was 14 years imprisonment. There was nothing unreasonable in the learned trial judge's rejection of the submission made on the appellant's behalf that a wholly suspended sentence should be imposed.
It was said that the offending involved in count 1 is one of the less serious examples of this offence. That may be so, but it must also be said that it cannot be regarded as a trivial matter. That the complainant may have agreed, or been thought by the appellant to agree, to the acts which followed the initial touching of the complainant's penis does not lessen the gravity of the deliberate seduction of a minor by a much older man. Even on the best view of the facts for the appellant in light of the jury's verdict, he initiated the seduction of a minor who had been entrusted to his care by the lad's mother. The sentence which was imposed reflects the appellant's serious breach of trust. In these circumstances, a sentence involving elements of general and personal deterrence was warranted. The sentence of two years imprisonment was not so disproportionate to these ends that it could be said to be manifestly excessive. The appellant will be eligible for parole after serving only four months, ie one-sixth of the total term. This degree of leniency can be said to be unusual, but it can also be said to reflect an appreciation that this was the appellant's first offence.
To the extent that it is said that it would have been better to suspend the appellant's sentence after a short period of actual custody, it may be that it was open to his Honour to take that course. His Honour could have acted upon the view that it was unlikely that the appellant would offend again, and that a partially suspended sentence might offer some beneficial long term incentive to the appellant in that regard.
On the other hand, it was also open to his Honour to take the view that, because there is nothing to prevent the appellant resuming his occupation upon his release from custody, it is desirable that he should undergo some assessment before his release on parole and some ongoing supervision in the community for a time thereafter in order to increase the prospects of his rehabilitation and to reduce the risk of further offending. His Honour may well have taken the view that a substantial period of supervision of the appellant on parole was desirable to ensure that he refrained from succumbing to the inclination to use his occupation as an opportunity to obtain illicit sexual gratification. In my respectful opinion, it cannot be said that it was not reasonably open to his Honour to act upon this view.
Orders
The appeal against conviction should be dismissed.
The application for leave to appeal against sentence should be refused.
FRASER JA: I agree with the reasons of Keane JA and the orders proposed by his Honour.
FRYBERG J: For 15 minutes or so the appellant masturbated the complainant's penis. The process was apparently continuous and undifferentiated. However the defence did not seek and the prosecution did not provide particulars of the act or acts constituting the assault the subject of count one. The trial judge directed the jury that in considering the question of consent, they could look simply at the initial touching, the contact at the outset, and consider whether that took place at a time when there was no consent to it.
It is not now suggested that the trial was conducted on any basis different from the one embodied in that direction. Nor is it suggested that the judge was in error in giving the direction. Counsel for the appellant expressly accepted that if the Crown proved the initial touching with the requisite lack of consent, it was open to the jury to convict, regardless of whether the complainant gave his consent to masturbation immediately after that touching.
By reason of that concession we have no need to consider whether reliance by the Crown on one part of an undifferentiated course of conduct constitutes an abuse of process, nor whether the offence ought to have been identified as constituted by all of that conduct. There is no occasion for us to consider what implications should be drawn from the reasoning in R v Redgard8, nor whether in the light of R v Olugboja9 unanticipated seduction constitutes a criminal offence in Queensland. These are adversarial proceedings and the appellant was represented by experienced and highly competent counsel.
I agree with the orders proposed by Keane JA and with his Honour's reasons for those orders.
R
Sutton
(1996) 190 CLR 348