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[2019] VSCA 179
General information, not legal advice.
Court of Appeal (Vic)
2019-08-15
Mr P, Maxwell P, Niall JA, Weinberg JA
Original judgment source is linked above.
First Revision: 15 August 2019 paras [4] and [80]
DPP v Schulz [2018] VCC 1058 (Judge Pullen); (22 March 2018 (Conviction); 10 July 2018 (Sentence))
CRIMINAL LAW - Appeal - Conviction - Grooming, sexual penetration of child under 16, possession of child pornography - Evidence - Admissibility - Facebook messages - Whether able to be proved by tender of copies - Whether admissible as tendency evidence - Whether probative value outweighed danger of unfair prejudice - Whether verdicts unsafe - Evidence admissible - Verdicts reasonably open - Leave to appeal refused - Evidence Act 2008 ss 48, 71, 97, 101, 137, 161, Criminal Procedure Act 2009 s 276(1)(a).
CRIMINAL LAW - Appeal - Sentence - Grooming, sexual penetration of child under 16 (3), indecent act with child under 16, possession of child pornography - Sentence of 10 years and 4 months' imprisonment, non-parole period of 7 years and 4 months' imprisonment - Whether manifestly excessive - Child was under applicant's care and supervision - Child's vulnerability known to applicant - Serious breach of trust - Whether judge erred in determining length of grooming period - Crown concession with respect to sentence on one charge - Appeal allowed in part - Crimes Act 1958 s 45(1),(2).
1 Following a trial before a jury, the applicant was convicted on six charges of sexual offending against a single complainant, a girl of 13 to 14 years of age at the time of the offences. The convictions were in respect of one charge of grooming;[1] one charge of an indecent act with a child;[2] three charges of sexual penetration (which related to two separate occasions);[3] and one charge of possessing child pornography, being photographs of the complainant taken by her and sent to the applicant's mobile telephone.[4] The applicant was also convicted by the judge of two related summary offences of supplying alcohol to the complainant.
2 The applicant was acquitted of three other charges of sexual penetration of a child (charges 6, 8 and 9) and a charge of wilfully committing an indecent act with or in the presence of the complainant (charge 7).
3 Following a plea hearing on 26 June 2018, the judge sentenced the applicant, on 10 July 2018, to a total effective sentence of 10 years and four months' imprisonment, with a non-parole period of seven years and four months. The sentence was structured as follows:
Grooming [Crimes Act 1958 (Vic) s 49B]
Indecent act with a child under the age of 16 [Crimes Act 1958 (Vic) s 47(1)]
Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1)]
Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1)]
Sexual penetration of a child under the age of 16 [Crimes Act 1958 (Vic) s 45(1)]
Possession of child pornography [Crimes Act 1958 (Vic) s 70(1)]
Supply alcohol to a person under the age of 18 years [Liquor Control Reform Act 1998 (Vic) s 119(3)]
Supply alcohol to a person under the age of 18 years [Liquor Control Reform Act 1998 (Vic) s 119(3)]
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
4 The applicant now seeks leave to appeal against both conviction and sentence. For reasons which follow, we would refuse leave to appeal against conviction. We would grant leave to appeal against sentence but only on a single ground, which means that the appeal against sentence will be allowed in part.
5 In 2015 and 2016, the applicant was the Scout leader of a Scout Group in regional Victoria. The complainant was a member of the same group, and the two met through scouting activities. The applicant was 51 years of age in the latter half of 2016 (when the acts giving rise to charges 2, 3, 4 and 5 were committed), and the complainant 14 years of age at the time. She was thus 37 years younger than the applicant.
6 The complainant lived with her foster parents and was a vulnerable girl. She had bouts of self-harm which involved cutting herself and excessive drinking of alcohol. She had a somewhat fractious relationship with her foster parents.
7 In respect of charge 1, the prosecution relied on a number of Facebook messages as proof of the offending. Extracts of these messages have been set out below.[5]
8 It was the prosecution case that the Facebook messages consisted of communications between the applicant and the complainant, which began with talking about Scout related topics. The communications became more personal over time, including the complainant messaging the applicant when she was at parties or intoxicated. The communications developed into messages that contained sexual innuendo.
9 At some time in the second half of 2016, the applicant attended a Scout ceremony, together with the complainant and other Scouts, at which an Australian Scout Medallion, a relevantly high achievement in Scouts, was awarded to various young Scouts. Following that ceremony, the applicant encouraged the complainant to work towards attaining such a medallion and told her that it would require intensive effort on her part in order to obtain the necessary badges. In October 2016, when the complainant was working towards her Australian Scout Medallion, the applicant met with the complainant's foster parents at their home. He told the complainant's foster mother that the complainant needed to brush up on her camp craft and that he was happy to take her away overnight on her own. The applicant said that this was outside of Scout rules, and not to tell anyone. It was agreed that he would take the complainant to Noonameena Scout Camp ('Noonameena').
10 The applicant told the complainant that she needed to find someone else to join them on the trip. The complainant nominated a friend, Tristan Chapman,[6] who was not a Scout, to accompany her. The complainant's foster father confirmed the plans for the overnight trip with the applicant.
11 On 21 October 2016, at approximately 9:00 pm, the applicant picked the complainant and Tristan Chapman up from the complainant's home and went to Noonameena.
12 Her evidence, given by way of Video and Audio Recorded Evidence ('VARE'),[7] about how she came to share a bed with the applicant, was relatively brief. In her first, VARE, after recounting that she and Tristan Chapman consumed vodka that the applicant provided and got 'pretty drunk', she said:
Most of it I can't really remember, I was too drunk. I, like, drank nearly a whole bottle of vodka. I remember, like, bits and pieces of it, like, going outside and having a smoke and kind of just vomiting all night ... And being in the same bed as him. That's pretty much all I remember.
13 When prompted by the interviewer to continue, she said:
I dunno he said, like, we could, like, share the bed 'cause I set up two tents and he said, 'Oh [Tristan Chapman] can sleep in a tent' you know 'and we can put the two beds together'. And then I was like, 'I want the bed next to the kitchen 'cause it's a really comfy bed'. 'Cause I thought at first we were all gunna sleep in the church and just have the tents up.
...
But he said, 'No, that's my bed'. I'm like, 'it's mine now' and he's like, 'only if you share'. So, yeah, I guess I was just kinda too drunk to say, 'I wanna sleep in the tent, I don't wanna sleep anywhere else' and I was just too tired so - yeah.
14 The complainant also said in her first VARE that the applicant had sent her a text a couple of days before the trip:
He texted me and he's like, 'Share the bed, nice and cosy' and, you know, 'One man sleeping bag so we're closed' and yeah.
Although a copy of that text message was not tendered in evidence, there was no challenge to this aspect of the complainant's evidence.
15 Tristan Chapman gave evidence that he had gone to Noonameena with the applicant and the complainant. He said that when they got there, the applicant had offered them something to drink and pulled out a bottle of vodka and told Tristan Chapman to skol a glass. He said that, after a while, the applicant told him to go out to the tent because he was a bit drunk and he ended up falling asleep.
16 The next morning, Tristan Chapman said, the complainant told him that she had woken up naked in the applicant's bed and that the clothes were scattered around the floor. The applicant said to Tristan Chapman that he had come out of the tent during the night and that both Tristan Chapman and the complainant were snoring. Tristan Chapman said that this obviously had not happened because the complainant had not come back to the tent. When Tristan Chapman told the complainant that he was going to tell the police what had occurred, the complainant recanted and said that nothing had happened. On his return home, Tristan Chapman recounted the incident to his mother, but it was not taken further.
17 The applicant, in his record of interview, accepted that the complainant was drinking and had a bottle of vodka, although he said that she had brought the alcohol and he had not supplied it. He said that he had replaced some of the vodka with water, without her knowing. He denied sharing a bed with the complainant.
18 In his evidence given at trial, the applicant repeated his denial that he had shared a bed with the complainant, but accepted that there had been a discussion between them about sharing a bed. He said that he took the discussion to be a joke.
Charges 3 and 4 - Sexual penetration of a child
19 Between 21 October and 1 November 2016, the Scout Group went on a four day hike to the Great Ocean Road, in the Otways area. The complainant was not on the list of participants. On the day of the trip, however, the applicant arrived with the complainant, having driven her to the site. The complainant said that, when they stopped on the drive down, the applicant 'went right through' the messages and photographs on her telephone 'to make sure [that] I'd deleted them all'.
20 On the first day of hiking, the participants hiked approximately 10 to 12 kilometres. The applicant and the complainant did not participate in the hike, but drove ahead to take the camping gear to set up the campsite for that evening.
21 The two were left alone together during the period of the hike. The complainant gave evidence that, at that campsite, the applicant brought alcohol, which she consumed.
22 The complainant said that she and the applicant put up the tents and that the applicant then said to her that it was 'time to do badge work', which the complainant understood to mean that it was time to have sex. The two of them went into the applicant's tent and the applicant penetrated the complainant's vagina with his penis (charge 3), and put his penis into her mouth (charge 4).
23 The complainant's account of the offending conduct was brief. She described her own role as passive, saying that the applicant moved her into any position that he wanted. At the end, he had told her that it was time to get dressed. She said that the other Scouts arrived about five minutes later.
24 There was evidence that the camp site was open and that people other than the scouting party were in the vicinity. The complainant said that, after the incident, she had tried to avoid the applicant. She also said that, once the other campers had returned to the camp, she was upset and one of the other scouts, BL,[8] asked if she was all right. In cross-examination, the complainant gave a slightly different account and said that she had avoided the applicant so that no one thought anything had happened between them.
25 BL gave evidence that the complainant had told her that on one of the nights she had gone into the applicant's tent and had sex. The complainant did not give evidence of such an incident occurring.
26 A Scout Leader, AP, who was present as a parent helper on the hiking trip to the Great Ocean Road, said that he had only undertaken a hike on the first day. On the other days, he remained in the camp with the applicant and the complainant. During that period, he did not see anything untoward in the interaction between the applicant and the complainant. On his observation, the complainant appeared to be enjoying the camp.
27 Charge 5 related to a trip to the Wombat State Forest. The complainant's foster mother was aware of the applicant's plan to take the complainant to the Wombat State Forest for Scout work during the day, specifically to perform badge work building shelters.
28 On that occasion, the applicant was alone with the complainant. He gave the complainant cider to drink. The applicant penetrated the complainant's vagina with his penis while they were in the back of his ute. The complainant said that she had been drinking a lot that day, and that she did not really remember anything when she drank.
29 When asked to describe the incident, the complainant said that she could not remember it. However, she said she knew that it occurred because they had spoken about it afterwards, and she had received a message from him making a somewhat oblique sexual reference. She also said she vaguely remembered getting into the back of the ute, hitting her head a few times and 'just being too drunk to actually, like, process what was happening'. When asked to describe the type of sex, she answered that it was 'the penetration type'.
30 In late December 2016, the complainant was admitted to hospital after an incident of self-harm. At that time, Tristan Chapman's mother informed the complainant's foster mother of Tristan Chapman's account of what the complainant had told Tristan Chapman. The complainant's foster mother took screenshots of the complainant's iPad, showing Facebook messenger entries. The complainant had retained her telephone at the hospital and remotely deleted a number of messages from her iPad. The messages included a message purportedly from the applicant, dated 31 December 2016, saying 'Start deleting. Its going to take you a while' and 'we better cool it'.
31 Police were notified and, on 3 January 2017, they executed a search warrant at the applicant's home address. They seized a number of telephones, which contained various photographs and images.
32 Twenty-two photographs were recovered from a Samsung Galaxy 6, found in the applicant's bedroom. The photographs depicted the complainant alone. In a number of them she was topless, in others she could be seen wearing a bra. Although some of the photographs did not show the subject's face or head, the complainant (who was recalled during the trial for this purpose) said that she had taken the photographs. She identified herself as the person in each of them. These photographs formed the subject of the child pornography charge (charge 10).
33 Under the warrant, the police recovered 68 pages of screenshots of exchanges between the applicant and the complainant on Facebook Messenger. Sixty-six of the pages related to messages captured from screenshots on the mobile telephone of the applicant's son. A further two pages related to screenshots taken from a different telephone, found in the son's bedroom, depicting other Facebook messages. The Facebook messages were identified by, and tendered through, the complainant.
34 In her third VARE, the complainant identified 66 of the 67 pages of screenshots (omitting page 40) as reproducing messages which had been sent between her and the applicant. At the special hearing, the complainant again identified the documents as copies of Facebook Messenger communications between her and the applicant.
35 The Facebook messages are relevant to a number of the grounds of appeal and it is necessary to set out the relevant extracts.
Complainant: [Picture of female drinking from a beer bottle]
Applicant: Where is mine
Complainant: Down my throat
Applicant: Something else should be there ...
...
Applicant: I have two bottles of cider at home
Complainant: CIDER
Applicant: I want them
Complainant MINE
Applicant: Ok. When?
Complainant: Whenever
...
Complainant: Yay. I don't have school today. Thursday or Friday
Applicant: U wanna go bush thurs morn? U and me
Complainant: Ok ...
Applicant: Somewhere nice and quiet. Maybe a little closer to home th[a]n that
Complainant: [Laugh emoji]
Applicant: Unless u want to get extremely wet
Complainant: Depends
Applicant: On what
Complainant: Don't know [Laugh emoji]
...
Applicant: I will put you over my knee and spank you
Complainant: [Smiling face with halo emoji]
Applicant: Actually you might like it too much
Complainant: [Smile emoji]
Applicant: Thought u might
Complainant: [Laugh emoji]
Applicant: I will be gentle
Complainant: ... I don't like ... gentle
Applicant: Ok. I can be rough if you prefer.
Complainant: [Laugh emoji]
Applicant: Or slow. Or hard and fast
...
Applicant: Ur on. Where would you like to go on thurs
Complainant: anywhere
Applicant: Just not slate mine
Complainant: [Thumbs up]
Applicant: Y not
Complainant: Too close
Applicant: Wombat
Complainant: Yep
Applicant: Done
...
Applicant: I like stroking pussy [In reference to picture of a cat]
Complainant: [Laugh emoji]
Applicant: What do u like to stroke
Complainant: [Eggplant emoji]
...
Applicant: Don't forget ur bathers for Thurs night. Unless you are going to canoe in ur birthday suite [sic]
Complainant: Not with the other scouts around
Applicant: Good idea
Complainant: Maybe Thursday
Applicant: Definitely Thursday. All natural
Complainant: ... unless I feel fat and refuse to take my top off ...
Applicant: That's my job
...
Applicant: Cumming to ur place with back [p]ack
Complainant: I better put some clothes on then
Applicant: No need
Complainant: There is when mum and dad are home
Applicant: Prove u have nothing on
Complainant: I do now
Applicant: Maybe later
...
Complainant: I think that's one thing I might remember
Applicant: Yes everything was showing so I've seen it all. U needed help to get dressed. Our secret
Complainant: Haha ok. I have a dog sleeping on my ass ...
Applicant: ... Can I sleep on ur arse
Complainant: Ok. Yes
Applicant: Next weekend
...
Applicant: Just remember I helped u into ur onsie last night
Complainant: I know. I can't even remember my clothes coming off ...
...
Applicant: So where is the dog now
Complainant: Between my legs ...
Applicant: Photo please
Complainant: [Sends picture]
Applicant: Boring.
Complainant: [Sends picture]
Applicant: Do you want me to swap places
Complainant: If u want ...
Applicant: But u dressed
Complainant: That can easily change
Applicant: Is that right?
Complainant: Yep ...
...
Complainant: Next time. Less or more alcohol?
Applicant: Definitely next time. Less alcohol or drink slower
Complainant: Drink slower
Applicant: Come on the GOW. U don't have to walk. I'm not. I'm driving camp to camp
Complainant: I'll come if I get front seat
Applicant: At this stage there is no one in my car
Complainant: [Laugh emoji]
Applicant: Which means we can stop anywhere and anytime
Complainant: [Smiling face with halo emoji]
Applicant: Definitely badge work time
Complainant: [Laugh emoji]
Applicant: Of a difference.
Complainant: Badge work sounds fun
Applicant: And tempting
Complainant: [Emoji] innocent angel
Applicant: Yep. U home yet
Complainant: Not ... yet
Applicant: Let me know when u are and alone
Complainant: Ok
...
Applicant: ... Set up tents and waite [sic] ... 3 hrs roughly. If you don't want to walk we [c]an make some excuse up for you
Complainant: Ok I'll come. Me don't like walking.
Applicant: Go and have a chat to [the complainant's foster mother] to confirm for me. Yes u can cum in my car ... front seat. Unless u prefer the back seat
Complainant: She said yes ...
36 As already noted, the complainant identified the documents as copies of communications between herself and the applicant. That evidence was bolstered by the fact that there are a number of aspects of the documents that identify the authors. Some of the pages have the complainant's name at the top of them and some contain her Facebook profile picture next to the entry. Other entries contain the applicant's Facebook profile picture. Further, the content of the messages is in many places quite specific, and contains references that are of a kind that could be readily recognised by their author.
37 In his record of interview, the applicant said that he had started using Facebook in early 2016 and had used it to exchange messages with a number of Scouts, including the complainant. He said he had received messages from the complainant, including in the middle of the night. He acknowledged that some of the exchanges were clearly inappropriate and of a sexually explicit nature.
38 He said that some of the messages involved the complainant telling him that she was cutting herself. He said that he should have stopped the communication, but that he continued to try and get information out of her, implying that he did so to provide comfort and support to the complainant. The applicant acknowledged that she was vulnerable to self-harm and risky behaviour.
39 The admission of the Facebook Messenger documents[9] was the subject of proposed grounds, 1, 2 and 3.
40 By ground 1, the applicant contended that the judge erred by admitting the 68 pages of Facebook messages and screenshots taken of the complainant's iPad. He noted that his son was not called as a witness, nor had he provided a statement in the proceedings. Further, he submitted that, without any evidence as to when and how the documents were created, the content of the documents was hearsay and s 48 of the Evidence Act 2008 ('Evidence Act') did not provide a means by which the pages could be admitted. The applicant relied on the fact that the 68 pages are undated, fragmented and incomplete; do not state that they are from Facebook; and do not otherwise reveal their provenance.
41 By ground 2, the applicant contended that the judge erred in failing to exclude the messages in compliance with s 137 of the Evidence Act. The collection of messages was said to be an incomplete record of the communications between the applicant and complainant. The applicant submitted that the messages left out significant conversations relating to the complainant's communications about self-harm.
42 It was said that the jury was invited to infer an intention on the part of the applicant to facilitate sexual activity from a collection of undated and selective communications with sexual innuendo, which were highly prejudicial. It was contended that the absence of the surrounding context, provided from the balance of the communications which was not before the jury, deprived the jury of being able to evaluate the conversations, with the consequence that they were given a partial impression of the nature of the relationship.
43 By ground 3, he submitted that the Facebook messages, the iPad screenshots, other photographs on the applicant's telephone and answers in the applicant's record of interview, were wrongly admitted as evidence of tendency.
44 Section 48 of the Evidence Act permits a party to adduce evidence of the contents of a document by tendering the document in question or by one of the methods prescribed in s 48. One of those methods is to tender a document that is, or purports to be, a copy of the document in question and which has been produced by 'a device that reproduces the contents of documents'.
45 A document is defined in the Evidence Act as 'any record of information'. The definition is expressed to include 'anything from which ... images ... can be reproduced' and 'a photograph'. The relevant documents that the prosecution sought to prove were the documents created in Facebook Messenger by the applicant and complainant. It was an orthodox application of s 48 for those documents to be proved by the tendering of copies.
46 Further, as the original Facebook Messenger exchanges were 'electronic communications',[10] ss 71 and 161 of the Evidence Act were relevant, although these provisions were not referred to at trial or in the written cases of the parties. Section 71 relevantly provides that the hearsay rule does not apply to 'a representation contained in a document recording an electronic communication', so far as the representation is 'a representation as to the identity of the person from whom or on whose behalf the communication was sent'. Sub-sections 161(1)(a) and (b) provide that:
If a document purports to contain a record of an electronic communication ... it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication -
(a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b) was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made ...
47 The screenshots of the Facebook messages and the iPad were documents produced by a device with the capability of reproducing the contents of a document. Section 48 allowed the prosecution to prove the documents by tendering a reproduction. Further, the presumption in s 161 as to the identity of the authors applied. That said, in order to apply s 48, there had to be some evidentiary basis, either from a witness or from the document itself, that identified the document as a copy of another document.
48 Of course, s 48 did not determine whether the contents of the documents were admissible. That depended on the documents meeting the test of relevance and not being inadmissible under any of the exclusionary rules.
49 Although the applicant eschewed any submission that the documents were not relevant, he submitted in writing that they were hearsay and, orally, that they had not been properly proven. Both submissions should be rejected.
50 First, the evidence of the complainant was that she and the applicant exchanged messages using the medium of the Facebook Messenger and that the screenshots were photographs or reproductions of some of the text conversations created through Facebook Messenger. The complainant said, in her evidence, that the documents reproduced conversations in which she and the applicant had participated. We note that, in the applicant's record of interview, he accepted that he had exchanged Facebook messages with the complainant and that some were clearly inappropriate. He was not asked to identify the screenshots.
51 Having regard to the content and form of the documents, there is no reason to doubt that the complainant was in a position to identify whether or not she was the author of one side of the entries and whether they recorded a conversation between her and the applicant. Once the complainant could identify the document as a reproduction of her conversation, it was not necessary to prove who took the screenshot or when it was taken.
52 The documents were not inadmissible hearsay. That was so for a number of reasons.
53 First, they were evidence of the communications that formed the basis of the grooming charge. That is, they were the acts that the prosecution sought to prove. Where the acts constituting an offence include what the accused said, orally or in writing, first hand evidence of those communications is not inadmissible hearsay. Once admitted for that purpose, the documents were admissible for all purposes.[11]
54 Secondly, a first-hand account of what the accused said (orally or in writing) and did is direct evidence, and not hearsay.
55 Thirdly, at least in part, the messages contained admissions within the exception to the hearsay rule.
56 Subject to ground 2, concerning exclusion under s 137, the Facebook messages were admissible.
57 The applicant submitted that the judge erred in not excluding the Facebook messages under s 137 of the Evidence Act. That section requires evidence to be excluded 'if its probative value is outweighed by the danger of unfair prejudice to the accused'.
58 In ruling that the documents would not be excluded under s 137 of the Evidence Act, the judge said:
the probative value of the evidence sought to be led is high and is not outweighed by the danger of unfair prejudice to the [applicant], in part based upon the [applicant's] own admission in the record of interview in sending Facebook messages to the [complainant] including 'sexually inappropriate' messages. There is also corroborative evidence regarding the content of the messages, including from the complainant's mother and other witnesses.
59 The function of this Court is to determine whether the evidence was admissible. That is, whether the decision of the judge to admit the evidence was correct, and not whether it was a decision that was open to her.[12] Not only does the applicant have to establish that the evidence was wrongly admitted, but also that its admission resulted in a miscarriage of justice.[13]
60 In our respectful view, the judge's ruling was plainly correct. The probative value of the documents was very high. Put simply, they proved the acts that were said to constitute charge 1.
61 Secondly, they were evidence of the nature of the relationship between the applicant and the complainant. Contextual evidence as to the existence and nature of a relationship between relevant persons is not propensity or tendency evidence in the relevant sense.[14] To have excluded the evidence would have been to ask the jury to determine the charges with an incomplete account of the relationship between the applicant and the complainant. To paraphrase the observations of Menzies J in Wilson The Queen,[15] to shut the jury off from the evidence throwing light upon the relationship between the applicant and the complainant would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of the particular relationship.[16]
62 Thirdly, the documents provided contemporaneous confirmation of the complainant's evidence as to specific charged acts, as follows:
(a) Page 8 refers to the applicant agreeing to supply alcohol to the complainant.
(b) Pages 19 and 20 show the complainant asking to be taken to 'Wombat' (which the jury could infer was a reference to Wombat State Forest, where the conduct underpinning charge 5 occurred) and the exchange has clear sexual overtones.
(c) Pages 48 and 49 record an exchange where the applicant describes the complainant being drunk, vomiting, needing help to take off her clothes and getting into 'onesie' pyjamas, which is consistent with the complainant's account concerning charge 2.
(d) Pages 64 to 67 are consistent with the applicant driving the complainant to the Great Ocean Road camp and making an excuse so that complainant would not have to participate in the hike that the other Scouts would undertake. This was consistent with the complainant's evidence.
63 Fourthly, the content of the documents served to reinforce admissions by the applicant in his record of interview that some of the messages were, in his words, 'well and truly inappropriate' and should not have been sent by him.
64 The fact that the evidence provided powerful support for the Crown case was, of course, prejudicial to the applicant. But that is not 'unfair prejudice' within the meaning of s 137. It may be accepted, based on the accounts given by the complainant in her VARE and by the applicant in his record of interview, that the extracts were incomplete and did not reproduce all of the conversations between them. Specifically, it is said, they did not include other exchanges in which the complainant had confided in the applicant about her self-harm. We are not persuaded that this resulted in any unfair prejudice.
65 The applicant had admitted, in his record of interview, to sending sexually inappropriate messages by Facebook Messenger. He was not impeded in his ability to extract evidence from the complainant, or other witnesses, that there were other messages, in order to provide further context to the relationship. It is also relevant that it was not the complainant or the prosecution that selected which of the messages were the subject of the screenshots found on the applicant's son's mobile telephone. The prosecution adduced the evidence that it had available, and it was not partial in its selection. Nor is there any suggestion that the police obtained any other relevant documentary material under the warrant that was not disclosed.
66 We note that the documents were found at the applicant's home. Although they were obtained under warrant before the first VARE, it does not appear that they were produced to the complainant until some time after that interview. It is not suggested their contents could have formed the basis of some reconstruction by the complainant.
67 We are also not persuaded that the failure to call the applicant's son to attest to the circumstances in which the screenshots were created resulted in any unfair prejudice. It was not suggested at trial that the screenshots were fabrications or that they were, in any particular respect, misleading by reason of their failure to include other items in the conversation trail. Counsel for the applicant, upon questioning from the Bench, was unable to provide any alternative hypothesis for the source or creation of the messages.
68 It follows that ground 2 is not made out. It remains to be determined whether the evidence was also correctly admitted as tendency evidence.
69 As required by s 97(1) of the Evidence Act, the prosecution gave notice that it intended to adduce tendency evidence. The notice set out the facts in issue, the tendency sought to be proved and the conduct relied on. The facts in issue were said to be whether:
(a) the acts in relation to charges 1 to 9 occurred as alleged by the complainant;
(b) the applicant's Facebook messages were made with the intention of facilitating the complainant's engagement or involvement in a sexual offence;
(c) the act of the applicant in sharing a bed with the complainant, as alleged in charge 2, was indecent; and
(d) the applicant knowingly possessed child pornography.
70 The tendency sought to be proved was that the applicant had a sexual interest in the complainant, and a willingness to act on that sexual interest. The conduct relied on included the participation in the exchange of Facebook messages, which was said to exhibit a sexual interest in the complainant.
71 In a detailed ruling, the judge observed that s 97 required the court to be satisfied that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. In that context, the judge applied the decision of the High Court in Hughes v The Queen[17] as establishing that was necessary to consider, first, the extent to which the evidence supported the identified tendency and, secondly, the extent to which the tendency made more likely the facts making up the charged offence.[18]
72 In the judge's view, the material was not generalised sexual conduct. Rather, it was particular to a number of the charged acts and had a high degree of probative value. The judge concluded that the evidence, when considered individually and together with the other evidence intended to be relied on by the prosecution, strongly supported proof of the facts in issue in the offences charged.
73 Turning to s 101(2) of the Evidence Act, the judge considered that the evidence had significant probative value, which substantially outweighed any prejudicial effect it might have on the applicant. In relation to the parts of the applicant's record of interview in issue, the judge held that they were relevant and capable of showing that he had a sexual interest in the complainant, and a willingness to act on it, and therefore were admissible for a tendency purpose.
74 In this Court, the applicant submitted that the evidence lacked significant probative value as tendency evidence, because it did not reflect any modus operandi, pattern of conduct or 'some other unusual feature' capable of rendering the charged offences more likely. It merely showed a general disposition to commit crimes of a sexual nature. Further, he submitted, the exchanges simply reflected the fact that the complainant had chosen to engage in that way, and that the applicant went along with it, admittedly inappropriately. It was submitted that he did not participate in the exchanges because he was sexually interested in the complainant or in order to solicit sexual contact.
75 The applicant's submission cannot survive in the light of the judgment of the High Court in R v Bauer (a pseudonym),[19] where it was said:
a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.[20]
76 In Bauer, the fact that the tendency evidence demonstrated a willingness to act was a component of the relevant tendency.[21] In McPhillamy v The Queen,[22] Kiefel CJ, Bell, Keane and Nettle JJ accepted that proof of 'sexual interest in young teenage boys may meet the basal test of relevance'.[23] But it was the 'tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value'.[24] The probative value of the evidence will depend on the surrounding circumstances, including the temporal connection between the conduct the subject of the tendency evidence and the alleged offending, and any similarity between the conduct and the offending.
77 In our view, the evidence had significant probative value as tendency evidence, for the following reasons. The Facebook exchanges and the retention of the semi-naked photographs of the complainant evidenced the applicant's sexual interest in the complainant. We reject the applicant's submission that the exchanges did not reflect any sexual interest on his part or intention to obtain physical contact, but were engaged in simply to keep the lines of communication open. Quite simply, the submission defies credulity. The messages contained barely disguised sexual content and their sexual connotations are immediately obvious to any reader. It is equally apparent from the responses of the complainant that she understood the sexual nature of the communications. Read fairly, the Facebook messages reflect the fact that applicant had an ongoing sexual interest in the complainant and a desire to keep the relationship secret. There is no reason to believe that there were other messages which would have painted the communications in a different or more benign light.
78 In addition, both the content of the exchanges and the retention of the photographs provide evidence of a willingness on the part of the applicant to take steps to bring about sexual contact. This is demonstrated by the exchanges set out at [35] above, in particular where the applicant made reference to the locations of the Great Ocean Road and Wombat State Forest.
79 Unfair prejudice may flow from tendency reasoning if it might lead the jury to attach inordinate weight to the evidence. It is not prejudicial because it is powerful and demonstrative of guilt, but because it is likely to induce general propensity reasoning.
80 We are not persuaded that permitting the jury to use the Facebook messages or the 22 photographs (obtained from the mobile telephone found in the applicant's bedroom) as evidence of the tendency alleged was unfairly prejudicial to the applicant. It was not generalised evidence and it was contemporaneous. It was used to establish that the applicant had a tendency to act or behave in a particular way toward the complainant, and that this tendency was relevant to the likelihood that he acted in that way in relation to the charged acts.
81 We are fortified in that view by the fact that the jury acquitted the applicant on three later charges of sexual penetration and one charge of indecent act with a child. Plainly, the jury were able to examine and consider the evidence relevant to each charge, and did not reason that merely because he had a sexual interest in the complainant, on which he had acted on some occasions, he must have done so on others.
82 Finally, it was submitted that the judge had said she would give appropriate directions to the jury but had failed to do so. There are three answers to this submission. First, the judge told the jury what use could legitimately be made of the tendency evidence. Secondly, no other directions were sought. Thirdly, no exception was taken to the charge.
Consideration of ground 4 - Reasonableness of the verdicts
83 By his fourth proposed ground of appeal, the applicant contended that the verdicts on charges 2 to 5 and 10 were unreasonable and could not be supported having regard to the evidence as a whole.[25]
84 The applicable principles are derived from M v The Queen.[26] The question is whether this Court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury's advantage in seeing and hearing the witnesses.
85 By way of general observation, we note that the prosecution case was a strong one. The Facebook exchanges between the applicant and the complainant provided powerful evidence of a developing, inappropriate, sexual relationship between them.
86 Further, there was powerful evidence of opportunity to commit the offences. The applicant had arranged to be alone with the complainant, and the evidence demonstrated that this was in breach of the rules and protocols established by the Scouts. In relation to the first incident (at Noonameena),[27] he was the only adult present and, even on his own evidence, the two children who were present consumed a significant amount of alcohol. In relation to charges 3 and 4,[28] the applicant ensured that he took the complainant alone in his car to the campsite and was present at the campsite whilst other participants were away for an extended period of time. Finally, in relation to charge 5,[29] he secured time alone with the complainant under the pretext of assisting her in developing her scouting prowess.
87 We are not persuaded by the specific complaints made by the applicant under this proposed ground.
88 In relation to charge 2, the applicant submitted that the evidence of Tristan Chapman (that the complainant first told him about having shared the bed with the applicant and then retracted those statements) must have raised a reasonable doubt. Further, he submitted that, following the applicant's evidence that she was extremely drunk and vomiting, and then went to bed, the jury must have had a doubt about whether this occurred.
89 We have set out relevant parts of the complainant's evidence above. In our view, the jury were well placed to assess the evidence of both the complainant and Tristan Chapman about the events relating to charge 2. They were capable of assessing the extent to which alcohol may have affected her recollection. There was clearly a basis upon which the jury could accept her account. The evidence of Tristan Chapman that the complainant had retracted her version of the events did not undermine her evidence. The retraction only occurred after Tristan Chapman had said he would notify the police, and it was explicable on that basis. The jury had to determine whether the evidence of the offending or the retraction was accurate. In our view, the evidence of the complainant was well open to be accepted by the jury.
90 In relation to charges 3 and 4, the applicant submitted that the inherent improbability of the complainant's evidence, particularly having regard to the evidence of witnesses BL and AP, coupled with a lack of detail in her account, must have raised a reasonable doubt about her evidence in the minds of a jury.
91 He argued that her account of the incident was inherently improbable. There was, he contended, a 'catastrophic risk of apprehension', given that the Scout group and other leaders could have arrived back at the camp at any moment and other members of the public were walking past the open camp site. The applicant fastened on to the evidence of BL, that she did not notice anything in relation to the applicant and complainant, and that of the other scout leader, AP, who thought that the complainant appeared to enjoy the camp.
92 In our view, that evidence was relevant as part of the context in which the jury were to assess the evidence of the complainant. There was nothing improbable in her account. Inconsistencies in various versions of events may be significant in assessing the reliability of a witness.[30] But the inconsistencies in the present case were hardly of a character which undermined the account given by the complainant in any significant way.
93 There is no doubt that the applicant had the opportunity to offend during the Great Ocean Road camp. Inevitably, there remained a very real risk of detection by passers-by or upon the earlier return of the other Scouts. Experience shows, however, that offending of this kind is not uncommonly associated with risks of being seen or interrupted and the jury were well placed to consider this aspect of the offending.
94 In our view, there was nothing inherently improbable about the offending. Similarly, we are unpersuaded that the lack of particular detail as to the sexual acts undermined the complainant's account to any significant degree. Certainly, it was not such as to require the jury to have a reasonable doubt.
95 In relation to charge 5, the applicant focused on what were said to be inconsistencies in the complainant's evidence. He referred to her evidence that, by reason of her consumption of alcohol, she did not remember much about the relevant day. We reject this argument. The quality of the complainant's evidence was plainly liable to being affected by the fact that she was a minor who had consumed alcohol to the point of being drunk. That was a matter the jury were required to consider. In our view, the evidence of the complainant about this incident was not such as to give rise to a reasonable doubt in relation to the offending.
96 In some respects, the applicant's submissions proceeded on the premise that there was no reliable evidence, in the absence of corroboration. For example, he submitted that there was no evidence of the applicant having any inappropriate intentions in relation the trip to Noonamena. This submission fails to take into account the evidence of the complainant that she received a message before the incident, in which the applicant mentioned sharing a bed. This evidence was capable of being accepted, even though the message was not reproduced. To the extent the submission implies that her evidence required corroboration, we would reject it.[31]
97 Finally, the applicant submitted that the conviction in respect of charge 10 was unsafe and unsatisfactory on the basis that the mobile telephone from which the photographs were recovered was not forensically examined, and there was no evidence to establish that the applicant had opened or accessed the photographs.
98 There is nothing in this point. The images were found on a telephone belonging to the applicant, which was located in the applicant's bedroom. He gave evidence that he received unsolicited images of the complainant, which he deleted as soon as he saw them. The jury were entitled to reject that evidence.
99 In circumstances where the applicant was party to a significant number of communications over time, in which photographs were sent to him by the complainant, it was well open to the jury to be satisfied, to the criminal standard, that he had viewed the photographs that had been sent to him by the complainant and had kept them on his telephone.
100 Having considered the evidence in its entirety, we are not left in any doubt as to the applicant's guilt of the six charges on which he was convicted. We would add that the acquittals on the other charges indicate a level of discernment and care on the part of the jury.
101 The applicant also sought leave to appeal against the sentence imposed. The two grounds of appeal were formulated as follows:
Ground 5: The trial judge erred in finding that the period of time the subject of the grooming charge was shortly before 20 October 2016 to 31 December 2017.
Ground 6: The total effective sentence, non-parole period, individual sentences and orders for cumulation are manifestly excessive and offend the principle of totality.
102 Before turning to the judge's reasons for sentence and the arguments in support of the application for leave to appeal, it is necessary to make brief reference to some aspects of the statutory setting.
103 First, the sexual penetration charges[32] involved a contravention of s 45(1) of the Crimes Act. Section 45(2)(b) provided that if the court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 12 and 16 and under the care, supervision or authority of the accused, the maximum term of imprisonment is 15 years. In the event that the court was not so satisfied, sexual penetration of a child of that age attracted a maximum penalty of 10 years imprisonment.
104 Given that a relationship of trust and responsibility between an accused and child victim will be relevant to the gravity of the offending, some care is necessary to avoid double punishment. The nature of the relationship is taken into account by an increase in the maximum term of imprisonment.
105 Secondly, s 5AA of the Sentencing Act 1991 ('Sentencing Act') applied. This section provides that:
in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence.
106 Thirdly, it was necessary to be careful to avoid double punishment across the charges, given that the evidence that was cross-admissible. For example, the supply by the applicant of alcohol to the complainant was the subject of two summary charges, but was also relevant as a potentially aggravating factor in the sexual offending. Similarly, the fact that the grooming that was the subject of charge 1, resulted in or facilitated the sexual offending that was the subject of convictions on charges 2, 3, 4 and 5, gave rise to a risk of double punishment.
107 Finally, the applicant fell to be sentenced as a serious sexual offender, for the purposes of the Sex Offenders Registration Act 2004, in relation to charges 3, 4, 5 and 10. This was relevant to the question of totality.
108 We note that no specific error is alleged in relation to the application of the relevant statutory provisions by the judge.
109 The judge described the offending as very serious and noted a number of aggravating features. They included that the offences involved alcohol;[33] there was an element of preplanning and premeditation in relation to charges 2, 3, 4 and 5;[34] the significant age disparity between the applicant and the complainant;[35] and that the offending involved a significant breach of trust.[36] The judge also noted that, as a further aggravating feature, the complainant was a 'particularly vulnerable young woman' and this was known to the applicant.[37] The applicant had known that she had engaged in self-harming from 2015 and, in his record of interview, the applicant described himself as a 'father figure' to her.[38]
110 The judge concluded that the offending relevant to the grooming charge was not 'low end', having regard to the applicant's active participation over a period of time in sexualised messaging and the encouragement given to the complainant to delete the messages between the two of them.[39]
111 The judge accepted that the offending in relation to charge 2 was at the lower end of the scale of gravity.[40]
112 The judge described the sexual penetration charges as very serious examples of such offending and indicated her appreciation that charges 3 and 4, occurring within the same incident, attracted a degree of concurrency.[41] Finally, in relation to the photographs that constituted child pornography (charge 10), the judge accepted that the photographs were unsolicited and were relatively few in number and that the offending was at the lower end of seriousness for offence of that kind.[42] Ultimately, the judge concluded that the applicant had good prospects of rehabilitation, having regard to his prior good character, lack of criminal history and existence of strong family support from his wife and children; and stable employment history.
113 The judge referred to the victim impact statements provided by the complainant and her parents. The statement of the complainant revealed that the offending had had a very significant impact upon her. It resulted in her stopping doing activity that she enjoyed, including the Scouts, and becoming isolated from others. She had also been diagnosed with an eating disorder, and suffered from anxiety, depression and PTSD, which was made worse by the applicant's offending.
Consideration of ground 5 - Time period of grooming charge
114 Under ground 5, the applicant submitted that the judge erred in finding that the period of time relevant for the grooming charge was shortly before 20 October 2016 to 31 December 2016. In short, this ground alleged that the judge sentenced on the grooming charge on a factual basis that was not open to her and was inconsistent with the jury verdicts of acquittal on charges 6 to 9.
115 Before the judge, on the basis of the complainant's evidence, the prosecution submitted that the grooming occurred between 7 October 2016 and the end of that year. The judge accepted that submission.[43]
116 The gravamen of this complaint was that the judge proceeded on the basis that the grooming continued during November and December 2016. This was an error, as the evidence established (according to the submission) that it ended around 10 November 2016. The applicant's reasoning refers to the acquittals of charges 8 and 9.
117 The complainant gave evidence that the messages commenced shortly before she went to the Noonameena camp in October 2016. The last of the messages on the prosecution case related to charges 8 and 9, which the complainant said had occurred in mid-December 2016. The applicant was acquitted of those charges. The applicant submitted that the true period of the offending was from October 2016 until 10 November 2016.
118 In our view, there was no sentencing error. The acquittals by the jury on charges 6, 7, 8 and 9 only established that the jury were not satisfied beyond reasonable doubt that the sexual offences occurred. That did not prevent the jury from being satisfied beyond reasonable doubt that the communications which constituted grooming continued throughout this period. The acquittals go no further than demonstrating that the grooming did not result in sexual conduct after around November 2016. Further, the iPad images taken by the complainant's foster mother show messages sent to the complainant from the applicant on 31 December 2016, saying that the complainant should delete messages and that they had 'better cool it'. That plainly supported a finding that the grooming continued to that point.
119 Even if (contrary to our view) the duration of the grooming charge was shorter than that accepted by the judge, no different sentence should be imposed. In our view, the gravity of the offending for charge 1 was not a product simply of its duration. The most serious aspect of the grooming, appreciated by the judge, was that it involved discussions of alcohol, was highly sexualised and occurred in respect of a vulnerable young person who was seeking assistance and care from the applicant. The messaging was exploitative.
Consideration of ground 6 - Manifest excess and totality
120 The applicant submitted that the individual sentences for each charge, the total effective sentence, non-parole period and orders for cumulation were manifestly excessive. The attack on the sentence on charge 1 was limited to the specific error which we have already rejected.
121 In relation to charge 2, the applicant submitted that the evidence went no further than establishing that the applicant shared a bed with the complainant for a short period of time, fully clothed. He submitted that the sentence of two years' imprisonment, with an order for 12 months to be served cumulatively on the base sentence, was outside of the permissible range available to the judge.
122 The respondent, in both its written case and in oral argument, accepted that this was so. The respondent accepted that this Court should therefore set aside the sentence on charge 2, with a consequent reduction in total effective sentence and non-parole period. However, it submitted that all other aspects of the sentence should be confirmed.
123 We accept that submission. As regards the sentences imposed on the three sexual penetration charges (charges 3, 4 and 5), we are far from persuaded that the sentences were manifestly excessive. The offending was extremely serious and involved a grave breach of trust. They were not spontaneous, but involved a degree of planning and forethought in order to secure time alone with the complainant. They were accompanied by messages sent at all hours of the night and in circumstances where the complainant was obviously vulnerable and seeking support from the applicant.
124 Further, the relationship of trust between the applicant and the complainant was very significant. It meant that the maximum term of imprisonment was 15 years and was clearly an aggravating factor. The applicant accepted that the complainant looked to him for support and care, and regarded him as a father figure. The callous exploitation of that relationship demanded a significant term of imprisonment and was relevant both to the objective gravity of the offending and the moral culpability of the applicant. Even if the applicant could call in aid his previous good character and absence of criminal history,[44] it would not have assisted him in his contention that the sentences were manifestly excessive.
125 There are two aspects of the sentence on charge 5 that require comment. First, the judge imposed a term of imprisonment that was one year longer than the sentence on the earlier charges of sexual penetration. There were two points of distinction that justified a higher sentence. First, they were later in time. Secondly, the complainant was more significantly affected by alcohol and therefore more vulnerable.
126 The second point is that, unconventionally, the judge did not nominate the charge with the longest sentence (charge 5 - six years' imprisonment) as the base sentence. Rather, she selected charge 3, which was one of the two charges of sexual penetration that occurred at the Great Ocean Road camp.
127 The applicant did not submit that this amounted to a specific error. Nor does it follow that it had an impact on the total effective sentence. It did have the effect that there was a significant order for cumulation on charge 5, being two years and six months' imprisonment. In our view, it would have been preferable for the judge to take the conventional course of identifying the longest term of imprisonment as the base sentence. However, we are not persuaded that it affected the total effective sentence.
128 The issue of totality was an important aspect of the sentence. However, the offending involved further discrete and significant transgressions of the law. The offending needed to be reflected in the orders for cumulation. Ultimately, we are not persuaded that there was any error in the orders for cumulation or the total effective sentence, other than as identified in relation to charge 2.
129 We would grant leave to appeal and allow the appeal on ground 5, in relation to the sentence on charge 2, but would otherwise dismiss the appeal.
130 It is necessary to set aside the sentence on charge 2. However, we would not disturb the individual sentences on the other charges. In our view, no different sentence should be imposed on them.
131 We would re-sentence the applicant on charge 2 to a period of imprisonment of one year and direct that five months of charge 2 be served cumulatively upon the base sentence. That produces a total effective sentence of nine years and 11 months' imprisonment. We would set the non-parole period as six years and 11 months.
[7] See Criminal Procedure Act 2009 ss 366 and 367 ('Criminal Procedure Act'). The complainant participated in the following three VAREs, each of which was tendered in evidence: VARE 1 on 16 February 2017; VARE 2 on 26 May 2017; and VARE 3 on 7 February 2018. In addition, she gave evidence in chief and was cross-examined by counsel for the applicant in a special hearing under s 370 of the Criminal Procedure Act.
[10] Electronic Transactions (Victoria) Act 2000 s 3 (definition of 'electronic communication').
[12] McCartney v The Queen [2012] VSCA 268; (2012) 38 VR 1, 7 [31]-[32].
[14] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 344 (Menzies J); Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610, 624-5 [44] (French CJ, Hayne, Crennan and Kiefel JJ).
[18] Ibid 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ).
[19] [2018] HCA 40 ('Bauer').
[30] See, eg, Tyrrell v The Queen [2019] VSCA 52; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.
[31] Evidence Act s 164; Jury Directions Act 2015 s 34; Davies v The Queen [2019] VSCA 66.
[33] DPP v Schulz [2018] VCC 1058 [35] ('Reasons').
Schulz
The Queen [2019] VSCA 179
(2012) 38 VR 1
(1970) 123 CLR 334
(2017) 263 CLR 338
(2011) 242 CLR 610
(1994) 181 CLR 487
(2011) 243 CLR 400