R v Yankovski [2007] VSCA 259

R v Yankovski [2007] VSCA 259 - VSCA 2007 case summary — Zoe

[20]

**16 It was first argued for the applicant under cover of grounds 7 and 8 that the verdict was afflicted with latent duplicity or uncertainty given that it was not clear whether the verdict was based on 'either or both of two possible acts of sexual penetration by the applicant'. In that regard, counsel pointed to the complainant's evidence that, when she woke up after the co-accused had sex with her, the applicant was sexually penetrating her from behind and that when she told him to stop he stopped moving his penis but it remained in her vagina, and he then commenced to move it within her. As I understand it, the applicant's argument came down to this, namely, that on the complainant's version and the jury's verdict there were essentially two possible acts of penetration that were unlawful in the sense that the complainant did not consent to them - the first occurred when the applicant inserted his penis into the complainant's vagina while she was asleep, and the second was when he 'kept going' after she told him to stop. But it was uncertain, so the argument went, as to which of the two possible acts of unlawful penetration committed by the applicant the jury were unanimous. It was said that it was possible that some jurors considered that the applicant's penetration of the complainant commenced while she was asleep and that this was a sufficient basis for conviction but were not satisfied that he did not cease penetration when told to do so. Yet other jurors, it was argued, may not have been satisfied that the complainant was asleep at the time the penetration began and found that the sexual penetration that resumed or occurred after the complainant said 'no' amounted to rape. Counsel argued that such disparate conclusions by the jury would not be sufficient to amount to a valid verdict of guilty. A valid verdict, it was said, requires the jury to have been unanimous as to which of the claimed two acts of penetration amounted to rape. In those circumstances, it was submitted, the verdict on count 2 is afflicted with latent duplicity or uncertainty and must be set aside. In support of that argument reference was made to R v Trotter[1] ('Trotter') and R v Rigoli[2] ('Rigoli').

[32]

The argument made by Ms Sexton [for the Crown] in this Court divided this alleged assault into two separate incidents, during both of which the complainant had been seized by the hair and pulled from one position to another. The consequence of this separation was, however, arguably to introduce into counts 1 and 2 a question of latent ambiguity, and hence of possible duplicity. If there were two distinct assaults, the evidence given by the applicant involved a denial that the first assault happened at all, and suggested that the second occurred by accident, or when the applicant was acting to defend himself. Accordingly, the jury may have convicted the applicant on count 2 on the basis of the evidence of either incident, while not having been convinced of his guilt on the other. The jury may have believed the accused's denial of the first incident and rejected his defence of accident, they may have rejected his version of both incidents, or they may have accepted his defence of accident and rejected his denial of the happening of the assault at the front door. If the evidence was to be viewed as having disclosed two incidents, either of which could have justified a conviction on the relevant count, the applicant could not know of which assault he had been found guilty; as to which, see Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, per Dixon J at 486-490; S v The Queen [1989] HCA 66; (1989) 168 CLR 266, per Dawson J at 274. The applicant was entitled to be informed of the particular act, matter or thing which was the foundation of the charge against him. If Ms Sexton's argument that there were two incidents is correct, it is possible that the jury were not persuaded by the complainant's evidence of what happened at the front door (which the applicant contested) but, in light of the applicant's admission that he pulled her hair in the dining-room, found the second assault proved beyond reasonable doubt. If so, a reversal of the onus of proof on the question of accident would have had critical importance. Alternatively the jury may have been led to disregard the applicant's denial of what happened at the front door, because they were persuaded to prefer the evidence of the complainant as to what happened in the dining-room. Either of these possibilities only goes to emphasize the difficulties which a misdirection on the subject of accident may have caused the defence.[8]

[63]

37 Whilst acknowledging that close comparisons of the impugned sentence with those in other cases is of limited utility, it was argued for the applicant that some assistance may be gained from the sentences that were recently imposed upon a re-sentencing by this Court in R v Cardamone.[13] In that case, it was said, the Court imposed sentences of four, six and six years' imprisonment respectively on two counts of digital-vaginal and one digital-anal rape by a 37 year old man upon a 15 year old girl. The rapes were accompanied by threats to kill or seriously injure, the brandishing of a weapon and a particular degree of humiliation by his ejaculating on the complainant's back, forcing her to undress and his use of abusive language. The offences were committed in the complainant's own home, which the applicant had entered uninvited for the purpose of raping her. The applicant had prior convictions for violence, dishonesty and drug offences and he fell to be sentenced as a serious sexual offender. It is necessary, however, to put the sentences in R v Cardamone in context. The applicant in that case was convicted of eight counts arising out of his brutal offending. Three of those counts have been mentioned and the others were threats to inflict serious injury, two counts of indecent act with a child under the age of 16 years and two counts of threat to kill. The impugned total effective sentence was ten years and three months with a non-parole period of seven years. This Court considered that the sentencing judge erred in his orders for cumulation and substituted different orders for cumulation, thereby reducing the total effective sentence to nine years imprisonment with a non-parole period of six years. Given the multiplicity of counts in that case, that necessarily brought into consideration the principle of totality, and given that the total effective sentence for the offending conduct was nine years' imprisonment, I consider that the sentences in that case on which the applicant relied as a springboard for the argument that the sentence here is plainly excessive are not a useful guide for determining whether the present sentence is so vitiated.

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