Ainsworth v The Queen
[2001] WASCA 212
•25 JULY 2001
AINSWORTH -v- THE QUEEN [2001] WASCA 212
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 212 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:49/2000 | 13 JUNE 2001 | |
| Coram: | KENNEDY J STEYTLER J MILLER J | 25/07/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Leave to appeal against sentences granted Appeal allowed Effective head sentence reduced to 4 years | ||
| PDF Version |
| Parties: | STEVEN JOHN AINSWORTH THE QUEEN |
Catchwords: | Criminal law and procedure Sexual penetration without consent Whether mistake should have been left to jury Criticism of direction No miscarriage of justice Criminal law and procedure Sentencing Four counts of sexual penetration Effective head sentence of 5-1/2 years Prisoner already serving sentence of 7-1/2 years for similar offences Totality principle Effective head sentence reduced to 4 years to be served cumulatively on other sentences |
Legislation: | Criminal Code, s 24 |
Case References: | Jarvis v The Queen (1998) 20 WAR 201 Miller v The Queen (1988) 166 CLR 59 R v Larsen (1989) 44 A Crim R 121 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 BRK v The Queen [2001] WASCA 161 Daniels v The Queen (1989) 1 WAR 435 Ferrari v Neenan [2000] WASCA 191 R v Duncan (1983) 47 ALR 746 R v Lyon [2001] WASCA 120 R v Quartermaine [2000] WASCA 341 Re Attorney-General's Reference (No 1 of 1977) [1979] WAR 45 Woolmington v Director of Public Prosecutions [1935] AC 462 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : AINSWORTH -v- THE QUEEN [2001] WASCA 212 CORAM : KENNEDY J
- STEYTLER J
MILLER J
- CCA 62 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sexual penetration without consent - Whether mistake should have been left to jury - Criticism of direction - No miscarriage of justice
Criminal law and procedure - Sentencing - Four counts of sexual penetration - Effective head sentence of 5-1/2 years - Prisoner already serving sentence of 7-1/2 years for similar offences - Totality principle - Effective head sentence reduced to 4 years to be served cumulatively on other sentences
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Legislation:
Criminal Code, s 24
Result:
Appeal against conviction dismissed
Leave to appeal against sentences granted
Appeal allowed
Effective head sentence reduced to 4 years
Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr K M Tavener
Solicitors:
Applicant : Laurie Levy
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v The Queen (1998) 20 WAR 201
Miller v The Queen (1988) 166 CLR 59
R v Larsen (1989) 44 A Crim R 121
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Case(s) also cited:
BRK v The Queen [2001] WASCA 161
Daniels v The Queen (1989) 1 WAR 435
Ferrari v Neenan [2000] WASCA 191
R v Duncan (1983) 47 ALR 746
R v Lyon [2001] WASCA 120
R v Quartermaine [2000] WASCA 341
Re Attorney-General's Reference (No 1 of 1977) [1979] WAR 45
Woolmington v Director of Public Prosecutions [1935] AC 462
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1 KENNEDY J: For the reasons to be published by Steytler J, I agree that the appeal against convictions should be dismissed. I also agree that leave to appeal against the sentences should be granted and the appeal allowed to the extent of reducing the sentence on count 4 to one of 4 years' imprisonment.
2 STEYTLER J: The applicant was convicted by a jury, on 1 March 2000, on four counts of sexual penetration without consent. He was sentenced to a total period of 5-1/2 years' imprisonment, with eligibility for parole. That sentence was ordered to be served cumulatively upon a sentence of 7-1/2 years' imprisonment already being served by him. He has appealed against his conviction and applied for leave to appeal against the sentence imposed upon him.
3 I will deal first with the appeal against conviction.
4 It is necessary, before coming to the grounds of appeal in that respect, to mention some of the evidence which was led at the trial, as well as elements of the trial Judge's directions to the jury.
5 The offences were committed by the applicant against a young woman who was then employed as an escort by a business in Geraldton known as Eve's Angels. The complainant's job entailed the giving of "erotic massages", which involved masturbation of the client, but not sexual intercourse.
6 The applicant and a male friend, Jamie Alan Davies, had spent the evening of 26 February 1998 drinking at the Geraldton Hotel. Upon their return to the applicant's home they telephoned two escort agencies before making contact with Eve's Angels. It was unclear which of the two men first spoke to that agency's receptionist, June Dorsett (who died before the applicant was tried). Davies said that it was the applicant who spoke to the receptionist and made arrangements to have an escort sent to his home. He said that he did not think that any "sex" (by which he presumably meant sexual intercourse) was "involved". The applicant, on the other hand, said that he thought that Davies had first spoken to the receptionist but that it had been a "three-way" conversation, with Davies relaying information to him. However the applicant added that he spoke to the receptionist when she rang back, apparently after making some enquiries. He said also that he was then told that the fee of $80 (which had been mentioned in the first telephone call) covered only 30 minutes "massaging and hand job" and that he said that he "didn't want a hand
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- job". He was told that he would "have to arrange things with the girl". He said that he had only "$80 flat".
7 The complainant was driven to the applicant's home by another woman, Maree Winning. The two men were told that one of them had to wait outside. Davies did so and the complainant and the applicant went into the applicant's bedroom.
8 There was a significant conflict in the evidence as regards what then took place. The complainant says that she told the applicant that she would provide only a massage and "hand relief" and not any other form of sex. She said that the applicant offered her additional money in return for additional sex but that she refused it.
9 The complainant said that, when she asked the applicant whether he wanted to be massaged on his front or back first, he placed his hands on her hips and swung her around onto the bed and asked her if she wanted a massage. She said that she did not. However the applicant placed his knees on her arms and attempted to place his penis in her mouth. She said that she turned her head away and told him to stop what he was doing but that he persisted for a period of about 10 minutes in the course of which she bit his penis. She said that the applicant then performed a number of other sexual acts upon her without her consent and notwithstanding her requests that he should stop and her attempts to push him away. She said that at one time she threatened to call out to her driver but was told that she should not do something that she would regret. She said that she did not call out to the driver as she was scared.
10 The applicant, on the other hand, said that the entire episode had been consensual. He said that there was no conversation between them other than "general banter". He said that during a period in which he had performed oral sex upon the complainant she had "moaned and groaned", enjoyed herself and been receptive. He said that it was she who had invited him to undo her undergarment in order to perform oral sex on her. He said that she had never told him to stop. He also said that there had been no conversation concerning a massage or additional money and that he had never threatened her. While he acknowledged that she was upset (as she said that she had been) at the end of the episode, he said that this was because he had ejaculated on her lingerie.
11 When the then counsel for the applicant came to make his closing address to the jury, he invited the jury to prefer the applicant's version of events to that of the complainant. He made no reference to any defence of mistake under s 24 of the Criminal Code. However, during a break in his
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- address, the applicant's counsel was asked by the trial Judge whether there was a basis for a defence of mistake of fact under s 24 of the Criminal Code. He responded by saying that he had not proposed to make that submission because it was not the defence case but that he supposed that it was "conceivable". He invited the trial Judge to tell the jury that the Crown had to negative that defence.
12 The trial Judge, when she came to address the jury, dealt with the elements of the offence, including that of the absence of consent, before coming to the issue of mistake. She said, in that respect, the following:
"Ladies and gentlemen, there's just one further matter. If, after you have considered all the evidence and applied the legal rules, you are satisfied beyond reasonable doubt of the accused's guilt of any charge, then you have to go on and look at a final issue.
This final issue is called mistake. It applies to all the charges but you need not consider it until after you have considered whether the accused is guilty or not guilty of the charge. If you find that he is otherwise guilty, then you go on to consider whether or not there was mistake. The law says 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 he believed to exist.
You have to consider whether the accused honestly and mistakenly believed she was consenting even though she did not give her consent freely and voluntarily. That's the issue you would have to consider."
13 After the members of the jury had retired they informed the trial Judge that they wanted clarification "on what guilty by mistake means". Upon recalling them the trial Judge said, inter alia, that:
"Your question really should be, 'What is not guilty by mistake?' because mistake is actually a defence. In other words, a person - the issue of mistake would only arise if you were satisfied beyond reasonable doubt of the accused's guilt in relation to a certain charge and then you would have to examine, 'Well, even though we're satisfied that he sexually penetrated her on that occasion and that he did so without her consent, are we satisfied that he was not honestly and
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- reasonably mistaken about consent? In other words, did he think she was consenting?'
In some ways this is a case where mistake doesn't arise very clearly and I'm just giving it to you and it's a factual matter; you may not find there's really any evidence that the accused made any mistake because if you accept his evidence she was consenting but the concern is that this defence needs to be put to you and I will just put it again but remember it's a defence so it has to be excluded by the crown."
14 After making some additional comments in this respect, the trial Judge said:
"Remember that the crown has to negative this offence [sic (defence)] and that's why it's a little awkward for me to explain it to you. You cannot convict the accused of any offence unless you're satisfied that the accused did not honestly but mistakenly believe that she freely and voluntarily gave her consent. Really in this case, ladies and gentlemen, you may form the view that the accused never really gave any evidence that he believed she was consenting."
15 It is these directions which have given rise to the three grounds of appeal.
16 Ground 1 is to the effect that the trial Judge misdirected the jury in respect of the burden of proof and ground 2 is that she erred in her direction to the jury in respect of the defence of honest and reasonable mistake under s 24 of the Criminal Code. However, in each case the same particular is relied upon, being one to the effect that her Honour erred by directing the jury that they were only to consider the defence of honest and reasonable mistake once they were satisfied of the accused's guilt beyond a reasonable doubt.
17 The third ground is to the effect that her Honour erred in effectively withdrawing the defence of honest and reasonable mistake from the jury by saying that they might not find that there was "really any evidence that the accused made any mistake" and that they might form the view "that the accused never really gave any evidence that he believed that ... [the applicant] was consenting".
18 As to the first two grounds of appeal, it would, in my respectful opinion, have been preferable if the issue of mistake had been dealt with
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- by the trial Judge in the course of her direction on the issue of consent. The jury could then have been told that it was required to consider, not only the question whether the Crown had negatived a defence of consent beyond reasonable doubt, but also whether it had proved, beyond reasonable doubt, that nothing had happened which might have given the applicant the honest and reasonable, but mistaken, belief that the applicant was consenting. That said, I am satisfied that nothing which was said by her Honour gave rise to any substantial miscarriage of justice.
19 As to ground 1, which, as I have said, addresses the directions touching upon the burden of proof, the trial Judge made it plain that this burden rested upon the Crown. She said, in that respect:
"In every criminal trial the burden of proving the charge rests on the crown from the beginning to the end of the trial. That's probably the most fundamental rule that you should always bear in mind. The crown brought these charges and it's for the crown to prove them. An accused person does not have to give evidence, has no obligation to prove anything in our courts.
Under our law an accused person is presumed to be innocent unless and until by your verdicts you were to find him guilty. If an accused person does go in the witness box and decide to give evidence in his defence and he raises any explanation or defence, it's not for him to prove that. It's for the crown to negative it. The crown must prove guilt. An accused person does not [have] to prove his innocence. He's presumed to be innocent unless and until by your verdicts you were to find him guilty."
20 Also, after discussing the evidence with respect to the issue of mistake, the learned trial Judge said the following:
"Remember, ladies and gentlemen, with the issue of mistake that the accused does not have to prove anything. The accused does not have to prove that he made a mistake. The crown has to negative it. You cannot convict the accused of any offence unless you're satisfied that the accused did not honestly but mistakenly believe that she freely and voluntarily gave her consent."
21 It will also be apparent from what I have earlier said that, in the course of answering the jury's question, her Honour again made it plain that the defence was one which had to be "excluded by the Crown".
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22 In these circumstances I am not persuaded that there was any misdirection as regards the burden of proof.
23 So far as ground 2 is concerned, I have already made the comment that it would have been preferable for the aspect of mistake to have been dealt with by the trial Judge at the time of directing the jury on the issue of consent. It was, in my respectful submission, inappropriate to have said that the issue of mistake should only be considered after the jury had considered whether the accused was guilty or not guilty of the charge. However, her Honour did say that it was only if the jury found that the applicant was "otherwise guilty" that they would go on to consider whether or not there was a mistake. It seems to me that the jury would have understood from this that the issue was one which need only be considered by them if they found that the complainant had not in fact consented to what was done to her by the applicant.
24 More importantly, so far as this ground and ground 3 are concerned, it seems to me that, on the evidence, it was simply not open to the jury to have acquitted the applicant upon the ground that the Crown had failed to negative the defence of mistake.
25 Mistake was, as the applicant's then counsel had acknowledged, no part of the applicant's case. While the applicant did say that he had been drunk and that he could not recollect some things he had, in many respects, a very specific recollection of what had taken place and his evidence was unequivocally to the effect that the complainant had not only consented to what was being done to her but had actively participated in it and had enjoyed it. One illustration of this is his evidence to the effect that the complainant had asked him to unbutton her undergarment in order to enable him to perform oral sex on her.
26 The complainant's evidence, on the other hand, was, as I have said, to the effect that she made it quite plain that she did not consent to the provision of any sexual services other than the massage and the masturbation and that she had objected to and resisted each of the acts of sexual penetration to which she was subjected by the applicant.
27 The jury was consequently faced with a stark contrast between the evidence of the applicant, on the one hand, and that of the complainant, on the other, as regards this issue of consent. There was, consequently, no basis at all for the suggestion that there was room for reasonable doubt on the question whether the applicant had laboured under an honest and reasonable, but mistaken, belief as to the existence of consent on the part
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- of the complainant in respect of any one of the offences committed by the applicant.
28 That being so, I am satisfied that there was no substantial miscarriage of justice and I would consequently dismiss the appeal against conviction.
29 That brings me to the appeal against sentence.
30 The applicant was sentenced to a period of 4 years' imprisonment on the first of the four counts upon which he was convicted, being one of inserting his penis into the complainant's mouth without her consent. On the second count, one of engaging in cunnilingus without the complainant's consent, he was sentenced to a period of 3 years' imprisonment. On the third count (one of digital penetration of the complainant) he was sentenced to 4 years' imprisonment. On count 4 (one of penile penetration) he was sentenced to 5-1/2 years' imprisonment. Each of these terms of imprisonment was ordered to be served concurrently with the others and, as I have said, the applicant was made eligible for parole.
31 I have also mentioned that these sentences were ordered to be served cumulatively with a term of 7-1/2 years' imprisonment which the applicant was then already serving. That sentence had been imposed upon him in respect of sexual offences committed by him whilst on bail for the offences committed in this matter. He will, if the sentences should be allowed to stand, consequently be required to serve a total period of 13 years' imprisonment, with eligibility for parole.
32 The applicant seeks to raise only two grounds of appeal, being that the total sentence imposed by the learned trial Judge was manifestly excessive in the circumstances and that she failed to give sufficient weight to the totality principle.
33 The ground of appeal which contended that the sentences imposed by her Honour were excessive was not pursued on the hearing of the appeal other than in the context of the second ground, which addresses the totality of the periods of imprisonment required to be served by the applicant. This was, in my opinion, appropriate as there could not have been any sensible submission that any of the sentences imposed was manifestly excessive when looked at on its own.
34 So far as the totality issue is concerned, the applicant had been in custody since 29 May 1998, upon which date he was charged with serious sexual offences relating to two female complainants, both of whom had
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- been strangers to him. He had collected these two women from a police station after they had been dealt with for drink driving offences, deprived them of their liberty and sexually penetrated one of them. He pleaded guilty to those charges and, on 13 March 1999, commenced the 7-1/2 year sentence imposed upon him in respect of those offences.
35 The sentencing Judge, after taking into account the fact that the maximum sentence for each of the offences committed by the applicant was one of 14 years' imprisonment, the fact that he was intoxicated at the time of committing those offences and the fact that the "complainant did take off her dress and undress you and do all of that in a background and atmosphere of sex" (while adding that workers in the sex industry deserve the protection of the criminal law as well as any other member of our society), said that these offences warranted a total period of imprisonment of 6-1/2 years. This, she said, would be made up by a sentence of 5 years' imprisonment on count 1, 4 years' imprisonment on count 2, 5 years' imprisonment on count 3 and 6-1/2 years' imprisonment on count 4, with each of those sentences to be served concurrently. She then went on to say:
"I do accept that if that is added to your present sentence of 7 and a half years' imprisonment that it is too much and I am prepared, because of the totality principle, to reduce each of those sentences so that my total sentence is one of 5 and a half years' imprisonment and I do that by reducing each term of imprisonment by 1 year."
36 It seems to me, with due respect to the sentencing Judge, that the reduction of one year was too little.
37 In Miller v The Queen (1988) 166 CLR 59 at 62 - 63 the High Court approved the following description of the totality principle in Thomas, Principles of Sentencing, 2 ed (1979), at 56 - 57:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a
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- total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
38 The totality principle applies, not only to sentences imposed in one court for offences committed as part of a connected and roughly contemporaneous series of offences, but also where a prisoner is being sentenced for an offence or offences while still serving a sentence for some other offence or offences. The totality of the sentence imposed must bear a proper relationship to the overall criminality involved in the various offences being dealt with. (See R v Larsen (1989) 44 A Crim R 121 at 126 and Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999, at 8, per Anderson J.)
39 It has, in this respect, been accepted that a cumulative sentence is harsher than one of the same length which is to take effect immediately. (See Vlek above, at 9, per Anderson J, and Jarvis v The Queen (1998) 20 WAR 201, per Ipp J at 206 - 207. Moreover, in Vlek above, at 10, Anderson J said, with the concurrence of Pidgeon and Ipp JJ, that:
" ... [T]here is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. See Cross: "The English Sentencing System" (Butterworths 1971) at p 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative."
40 It seems to me that the total sentence imposed in this case, albeit for offences of a very serious kind, was too long when taken together with the period of 7-1/2 years' imprisonment already being served by the applicant
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- and that a greater reduction should have been given in order to reflect the considerations to which I have referred. In my opinion a total period of 11-1/2 years' imprisonment would, in all of the circumstances, have been more appropriate.
41 I would consequently allow the application for leave to appeal, uphold the appeal, quash the sentence imposed by the learned sentencing Judge and impose, in lieu, a total sentence of 4 years' imprisonment to be served cumulatively upon the sentence of 7-1/2 years' imprisonment currently being served by the applicant. I would give effect to this by reducing the sentence to be served in respect of count 4 of the indictment to one of 4 years' imprisonment. I would leave undisturbed the order for eligibility for parole.
42 MILLER J: For the reasons published by Steytler J, I agree that the appeal against convictions should be dismissed. I also agree that leave to appeal against the sentences should be granted and the appeal allowed to the extent of reducing the sentence on count 4 to one of 4 years' imprisonment.
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