Andrew Kovachev (a pseudonym) v The King
[2024] VSCA 325
•19 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0154 |
| ANDREW KOVACHEV (a pseudonym)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 October 2024 |
| DATE OF JUDGMENT: | 19 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 325 |
| JUDGMENT APPEALED FROM: | DPP v Kovachev (a pseudonym) [2023] VCC 689 (Judge Chettle) |
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under 12 and associated offences – Hearsay – Evidence of penetration was previous representation of child complainant – Whether unreliable evidence warning required – Whether verdict unsafe and unsatisfactory – Extension of time granted – Appeal allowed – Verdict of guilty of sexual assault of child under 16 substituted.
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| Counsel | |||
| Applicant: | Mr D Dann KC | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Seda Kilic & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
NIALL JA:
Introduction
An indictment filed in the County Court charged the applicant with a number of sexual offences (‘the trial indictment’).
Charge 1 on the trial indictment, upon which (among others) the jury found the applicant guilty on 3 March 2023, was a charge of sexual penetration of ‘Evelina Groves’,[2] a child under 12.[3] A charge of sexual assault of a child under 16,[4] charge 2, was laid in the alternative.
[2]This was a pseudonym assigned by the County Court.
[3]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49A(1). The maximum penalty is 25 years’ imprisonment, and the standard sentence is 10 years’ imprisonment.
[4]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1). The maximum penalty is 10 years’ imprisonment, and the standard sentence is 4 years’ imprisonment.
Immediately following the delivery of the jury’s verdicts, the applicant pleaded guilty to charges on a second indictment (‘the plea indictment’) of accessing (charge 1), and possessing (charge 2), child abuse material. Subsequently, on 27 April 2023, the trial judge sentenced the applicant on the charges in the trial and plea indictments to a total effective sentence of 13 years and six months’ imprisonment, with a non-parole period of nine years and six months.[5]
[5]The individual sentences and the orders for cumulation are conveniently set out in a table in the reasons of Taylor JA at [38] below.
The applicant has sought an extension of time within which to seek leave to appeal against both conviction and sentence.
As we will explain, we are of the view that an extension of time within which to seek leave to appeal against conviction should be granted, as should leave to appeal. We would allow the appeal — limited to the conviction on charge 1 on the trial indictment — and substitute a verdict of guilty of sexual assault on charge 2. As a result, we would resentence the applicant in the manner set out below.[6]
[6]At [36].
The evidence at trial
Much of the background to, and surrounding circumstances of, the applicant’s offending is helpfully set out in the reasons for judgment of Taylor JA, which we have had the benefit of reading in draft. That being so, we need only refer to selected portions of the evidence relevant to charge 1 and charge 2 on the trial indictment.
At trial, the prosecution alleged that, when Evelina got into bed with the applicant, he put his hand inside her underwear and digitally penetrated her vagina. Significantly, however, Evelina made no allegation — either in her VARE[7] interviews with police or her evidence at the special hearing[8] — that the applicant had penetrated her vagina with his finger. The only evidence that could have supported any allegation of digital-vaginal penetration was certain hearsay evidence from Evelina’s mother.
[7]Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, s 367.
[8]See Criminal Procedure Act 2009, s 370(1).
Significantly, in her first VARE, conducted on 18 April 2019, Evelina did not describe any incident that could have founded either charge 1 or charge 2.
Moreover, in her second VARE, conducted on 30 October 2021, Evelina did not distinctly describe any act of penetration that could have founded charge 1. The relevant passages from the VARE are as follows:[9]
[9]Emphasis added.
Q61…
AI said nothing and I just jumped in the bed. And I kind of fell asleep, and then I could feel [the applicant] touching me. So then I got up – yeah.
Q62So you’ve hopped into bed and you’re falling asleep. Tell me what you mean when you say you can feel him – you could feel him touching you.
ALike, I could feel him putting his hands down my pants and that.
Q63Mm’hm.
AAnd he kind of hurt me while doing that I cause, like, my bone was pushed in and that, and it was really hurting. So then I was – so then I went to go to my brother’s room and – yeah.
Q64O.K. What part of your body did he touch?
AHe touched, like, my private spot.
…
Q71…
AYeah, it’s called a vagina.
…
Q97You said that it hurt.
AYep.
Q98Tell me more about that. Explain to me what you mean when you say it hurt.
AIt’s hard to explain. Like, he was – like, he was not near the top. He was down a bit, and it, like, hurt a bit so – yeah.
Furthermore, in her evidence at the special hearing on 8 November 2022, given with the assistance of an intermediary, Evelina once more gave no evidence of penetration. Under cross-examination by defence counsel, her evidence included the following:
And you went to your brother’s room, did you?---Yes, after [the applicant] started touching me.
Did you go to your brother’s room before he started touching you?---No.
So, before you went to your mother’s room that night, you were in your bed. Did you feel scared?---Yes, because I had a nightmare.
What were you scared about that night. You’ve just answered that, haven’t you, the nightmare?---Yeah.
Do you have many nightmares [Evelina]?---No, not now.
Not now?---Not now, but I used to.
[Evelina] is it possible that [the applicant] touching your private spot was a nightmare?---Not the dream that I had but it would’ve been one of my worst nightmares.
[Evelina] you said that you used to have nightmares, is that right?---Yep.
Is it possible that [the applicant] touching your private spot was one of these nightmares?---Yes, it wasn’t the nightmare that I had but it would’ve been one of my nightmares.
As we have said, the only evidence that could have supported penetration was certain hearsay evidence from Evelina’s mother, ‘ER’. As to that, in his charge the judge directed the jury that[10]
if you are not satisfied beyond reasonable doubt of the [applicant’s] guilt in relation to Charge 1, you will of course find him not guilty and in those circumstances you would then be asked by my associate, how you find him relation to the alternative charge, Charge 2. If, on the other hand, you find him guilty on Charge 1 you will not be asked about the alternative. That is the way they are laid.
Now, the issue for you to consider in that is simply this; was there penetration? The offence alleged is intentional sexual penetration of a child, by introducing his finger into the vagina. The sole evidence that the Crown have to support the allegation of penetration comes from what [Evelina] said to her mother, and I’ll come back to that later, but that’s the issue that defines what you have to deal with in relation to Charge 1.
Charge 2, the issue is did it happen at all? … You will remember there has been a lot of evidence about basically she said she got scared and went into her mother’s room. She says she was touched in the vagina and then she went back to her brother’s bedroom, and the accused came and got her and brought her back to her mother’s room and continued to touch her.
She did tell you that she felt pain. She did tell the police that she felt pain, but she was not asked by anybody about whether or not and did not say to you in giving evidence that the finger penetrated her vagina. She did say that to her mother. She said that it was on the inside not the outside, and that is, you heard the submissions made about that, whether that means inside her clothes or whatever it means, was that inside her vagina. When you think about the pain, the Crown invites you to infer that there was penetration, but if you are not satisfied beyond reasonable doubt about that, that there was in fact penetration by the finger to any extent of the vagina, did he penetrate her vagina at all. Now, if the answer to that is you cannot be satisfied that he did, you must return a verdict of not guilty.
[10]Emphasis added.
ER, who worked in ‘the social working field’, was the mother both of Evelina, born in 2013, and a son, ‘EB’, born in 2011. The applicant’s daughter had been ER’s childhood friend, and the applicant had been a friend of her family. When ER was going to Thailand between 22 March and 1 April 2019, she arranged for the applicant to stay at her home and look after her children. After her return from Thailand, ER had two conversations with her children. With respect to the first conversation, ER said:
Yep, so I um, I questioned both my kids. Um, if there, like anything had happened, if they felt uncomfortable, if there was any games that they played that they felt uncomfortable and at that point, both of them um, said nothing and that they just played and had pillow fights and made (sic.) [the applicant] and yeah, nothing, nothing to be concerned of as per that first conversation.
ER then had a second conversation with Evelina, ‘probably like three or four days later’. Evelina told ER during this conversation that the applicant had applied some cream to her vaginal area.
There was then a third conversation. ER’s evidence-in-chief about it was as follows:[11]
[PROSECUTOR]: … Yes, tell me about that conversation if you would please?---Um, so student welfare had called me saying that um, they were having a bit of trouble with [Evelina] at school um, and she was being a bully, not concentrating on work, so um, trying to implement strategies at school and at home because the behaviour has been the same at home. Um, so I pulled her aside again that night when I was tucking her into bed.
Yes?---And asked her what was going on like, why is this happening, what, what has triggered this because this is not her, this is not her behaviour at all. And um, she said to me that she’s um, been having a lot of thoughts about [the applicant] and that um, she’s scared kids are going to find out at school and bully her for it and so I was like, okay so, what's, what's triggered this. Like why, why. Um, she was like, do you want me to tell you Mummy and I said if you're comfortable enough, tell me anything you want.
So, she proceeded to tell me that one night when I was in Thailand um, there was a night where she’d woken up and she was a bit scared so she went into my bedroom where [the applicant] was sleeping um, for comfort and she hopped into bed and then she said that he started touching her vagina and it really started to hurt. Um, she then got up and went into my son’s room, [EB] um, and then she said [the applicant] come in, grabbed her from the bed or from [EB’s] room, and took her back to my bedroom where he continued to touch her vagina. Um, I asked her whether it was outside the vagina or inside the vagina and she told me it was inside the vagina and I think I kind of cut it off then because it was a bit too much for me at the time and I just needed to go tell the right people.
[11]Emphasis added.
Conviction ground 1: Trial judge’s failure to give an unreliable evidence direction
With respect to conviction, the first proposed ground of appeal contends that the trial judge erred ‘in failing to provide an unreliable evidence direction, as regards the evidence of [Evelina Groves] complaint to her mother about the alleged offending [the] subject of charge 1’.
As we have indicated, we consider that this ground must succeed.
Prior to the promulgation of the Evidence Act 2008 (‘the Act’), although ER’s hearsay evidence of what Evelina told her might have been admissible as a complaint of sexual misconduct to buttress Evelina’s credibility,[12] it would not have been admissible in order to prove the fact of penetration.
[12]R v Freeman [1980] VR 1.
Under the Act, however, a ‘previous representation’ — which might, in some circumstances, embrace complaint evidence at common law — may be admitted not only to assess the credibility of a complainant (by demonstrating that the complainant’s account has been consistent), but also to prove the truth of the facts asserted in the representation. By reason of s 66(2), evidence of a previous representation is admissible if the person who made the representation ‘has been or is to be called to give evidence’; and ‘the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made’.
Relevantly, s 31 of the Jury Directions Act 2015 (‘JDA’) defines ‘evidence of a kind that may be unreliable’ to include ‘evidence in relation to which Part 3.2 (hearsay evidence)’ of the Act applies. Hence, the prior representation of Evelina to her mother, which is the sole evidence of penetration upon which the conviction on charge 1 is founded, falls within one category of evidence of a kind that s 31 specifically contemplates may be unreliable.
By virtue of s 12 of the JDA, trial counsel must, after the close of evidence, request that the trial judge give particular directions ‘in respect of … the matters in issue’ and evidence relevant to those matters. Section 14(1) provides that the trial judge must give the requested direction unless there are good reasons for not doing so. Significantly, s 32(1) provides that a party may request, under s 12, that the judge direct the jury on ‘evidence of a kind that may be unreliable’ (a non-exclusive definition of ‘evidence of a kind that may be unreliable’ being contained in s 31).
The content of the particular direction that must be given by the judge is set out in s 32(3):
32 Direction on unreliable evidence
…
(3)In giving a direction referred to in subsection (1), the trial judge must—
(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of—
(i)the significant matters that the trial judge considers may cause the evidence to be unreliable; or
(ii)if the direction concerns evidence given by a child, the significant matters (other than solely the age of the child) that the trial judge considers may make the evidence of the child unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
In the discussion contemplated by s 12 of the JDA, the applicant’s trial counsel asked for an ‘unreliable witness warning’ with respect to Evelina (and her cousin ‘Willow Tanner’).[13] Although counsel’s submissions lacked precision, in circumstances where he specifically drew the trial judge’s attention to s 31 of the JDA — in which various categories of ‘evidence of a kind that may be unreliable’ are set out — it is clear that counsel effectively acknowledged that the warning that he sought was governed by the provisions of ss 31 and 32 of the JDA. Furthermore, albeit that his submissions on the topic were not expressed with the clarity that would have been desirable, it is also plain that counsel’s submissions were in part directed to the evidence of Evelina’s ‘complaint’ to her mother.
[13]This was a pseudonym assigned by the County Court.
As we have said, notwithstanding his reference to s 31 of the JDA, counsel described the direction he asked for as an ‘unreliable witness warning’. Unlike the position at common law, however, in which certain categories of witnesses (including accomplices, sexual assault complainants, child witnesses and prison informants) were regarded as unreliable — requiring the trial judge to warn the jury about the dangers of relying on such evidence unless it was corroborated[14] — ss 31 and 32 of the JDA are not specifically concerned with witnesses of a kind who traditionally have been regarded as unreliable, but with evidence of a kind that may be unreliable (albeit that the definition of ‘evidence of a kind that may be unreliable’ in s 31 covers much of the same field as the common law). The discussion between counsel and the trial judge makes it clear, however, that the judge was fully aware that the warning being sought was governed by ss 31 and 32 of the JDA.
[14]See, e.g., Bromley v The Queen (1986) 161 CLR 315, 324; Pollitt v The Queen (1992) 174 CLR 558.
Mistakenly — given that Evelina’s hearsay representation to her mother was caught by the definition of ‘evidence of a kind that may be unreliable’ in s 31 — the judge observed that Evelina’s evidence ‘doesn’t fit into any of the usual categories of unreliable evidence’. Moreover, the judge also mistakenly observed — given the terms of s 14(1) of the JDA — that the applicant has ‘got to demonstrate to me there’s good reason to get it’.[15] Ultimately, the judge said, ‘I don’t see any basis for an unreliable witness warning’, and told defence counsel, ‘you haven’t got any grounds for an unreliable witness warning’.
[15]See Wade (a pseudonym) v The Queen [2019] VSCA 168, [28], [35] and [39] (Priest, T Forrest and Weinberg JJA). See also Danny (a pseudonym) v The Queen [2020] VSCA 8; Movel (a pseudonym) v The Queen [2024] VSCA 183.
In TJF[16], Studdert J (with whom Beazley JA and Sperling J agreed) observed:
By its very nature, evidence of complaint, being hearsay evidence, may be unreliable for a number of reasons expressed in the report of the Australian Law Reform Commission which led to the enactment of the Evidence Act. Those reasons are identified in S Odgers, Uniform Evidence Law (4th ed 2000), p 413 and may be restated as follows:
‘(a) The potential compounding of weakness of perception, memory, narration skills and sincerity when evidence of the fact is given second hand.
(b) The statement to the witness not be testable by cross-examination.
(c) The statement made to the witness not being made in a court environment and thus potentially more susceptible to pressures which might result in a false account.
(d) The statement made to the witness not being made on oath or affirmation in the solemn context of proceedings in court.’[17]
[16]R v TJF (2001) 120 A Crim R 209 (‘TJF’).
[17]Ibid, [55]. See also R v Stewart (2001) 52 NSWLR 301; Homsi v The Queen [2011] NSWCCA 164; MWL v The Queen [2016] NTCCA 6; Blair v The Queen [2022] NSWCCA 176; LF v The Queen [2023] NSWCCA 232.
In our opinion, the hearsay evidence of Evelina’s alleged previous representation to her mother that the applicant had touched her ‘inside the vagina’ required an unreliable evidence direction under s 32. The need for a warning was particularly acute in the particular circumstances of this case, where the only evidence available to support an essential element of a very serious offence — carrying a maximum penalty of 25 years’ imprisonment — was the complainant’s hearsay representation.
To risk stating the obvious, had Evelina provided direct testimony that the applicant had touched her ‘inside the vagina’, that evidence could have been tested in cross-examination (albeit with the restrictions that are applicable to child witnesses). Hence, the honesty and accuracy of her version of events — including whether she was able to correctly perceive and remember what had occurred — would have been capable of being tested, and any ambiguity or inaccuracy in her narrative capable of being exposed. Cross-examining counsel could have tested her powers of recollection (and whether they were affected by her age or intelligence); the circumstances in which the relevant events were experienced; and whether her version was the subject of reconstruction or contamination (arising, for example, from discussion with her mother). Furthermore, her demeanour when relating relevant events would have been observable. Given the hearsay nature of her alleged previous representation, however, none of these means of testing the credibility or reliability of her version of events were available to the applicant.
Indeed, an unusual feature of this case is that the prosecution made no attempt to adduce any evidence from Evelina of the prior representation allegedly made to her mother. As we have already observed, the admissibility of the prior representation under s 66 of the Act depended on Evelina being called as a witness. In those circumstances, it would generally have been expected that, having called Evelina as a witness, the prosecution would not only have adduced direct evidence of the relevant event from her, but also of having made a complaint or previous representation about it to her mother, thereby permitting Evelina to be challenged on that account. Neither of those things occurred in this case. Although the ability to cross-examine a representor will generally ameliorate any unfairness in allowing a hearsay account to be given as evidence of the truth of the representation, the applicant could not fairly have been expected to challenge an account of an offence that had not been attested to by Evelina in evidence-in-chief.[18]
[18]See MWJ v The Queen (2005) 80 ALJR 329; 222 ALR 436; [2005] HCA 74.
In our view, the jury would have been unlikely to have appreciated the significance of the failure to adduce that evidence from the complainant nor the difficult forensic position in which the applicant was thereby placed. ER’s account of what her daughter had told her meant that the only evidence of the act of penetration was mediated through ER. Understandably, the jury might have reasoned that Evelina’s mother would be well placed to obtain an accurate account of what had occurred without the jury having the benefit of having a first-hand account.
We consider that, absent a judicial warning, the notorious unreliability of hearsay — recognised and well-understood by lawyers familiar with criminal evidence — is unlikely to have been obvious to the average lay juror, particularly the lay juror who has been directed — as the jury effectively was in the present case[19] — that a previous representation may be used as evidence of the fact (or facts) asserted by the representation. As a result, the average juror may be unable to appreciate the difference in weight between direct evidence and hearsay evidence.
[19]See [11] above.
Of particular importance in the present case, ER agreed that she had told police that she was ‘emotional and crying’ when she asked her daughter whether the applicant had touched her private areas ‘inside or outside’. And significantly, ER told police that she made no attempt to further clarify what her daughter meant because she was ‘getting uncomfortable’. In these circumstances, we consider the risk of impaired perception and inaccurate repetition of Evelina’s alleged previous representation was palpable, and should have attracted a warning under s 32, drawing the jury’s attention to its potential unreliability.
In our opinion, although his submissions may have been infelicitously expressed, counsel for the applicant did request an unreliable evidence direction under s 12 of the JDA. As a result, s 14(1) required the judge to give such a direction, there being no good reasons for not doing so. If we are wrong about that, however, we consider that, as contemplated by s 16(1), there were substantial and compelling reasons for giving the direction. The relevant hearsay representation — which, in the circumstances in which it was received, we consider was prone to inaccuracy — was the only evidence to support an essential element of the charged offence. Failure to warn the jury that the evidence may have been unreliable has occasioned a substantial miscarriage of justice.
Given our conclusions on the merits of ground 1, it is appropriate to grant an extension of time to make application for leave to appeal against conviction, the reasons for the delay in filing the relevant notice having been satisfactorily explained. We would also grant leave to appeal against conviction on ground 1; allow the appeal; and set aside the conviction on the first charge on the trial indictment.
During oral argument, counsel for the applicant — who was not counsel on the trial — agreed that, should the first ground of appeal succeed, it would be open to the Court to set aside the applicant’s conviction on charge 1 and substitute a verdict of guilty on charge 2 of the trial indictment, sexual assault of a child under 16.[20] In the circumstances, we consider it appropriate to do so. There is ample evidence to support the conclusion that the applicant touched the complainant in the area of her vagina, thereby supporting a conviction for sexual assault. Any public interest that there may be in attempting to secure a conviction for the more serious offence is, in our view, outweighed by the inconvenience and expense of a new trial, and the oppression to the applicant, who has already been through one trial (and an appeal).[21]
[20]See Criminal Procedure Act 2009, s 277(1)(c)(i).
[21]See R v Bartlett [1996] 2 VR 687, 698–9; Rabey v The Queen [1980] WAR 84, 95–6. See also Dyers v The Queen (2002) 210 CLR 285, 314–5 [82]–[83]; DPP (Nauru) v Fowler (1984) 154 CLR 627, 630. See further Corns, C, The Discretion of the Court of Appeal to Order a New Trial or Verdict of Acquittal (2006) 30 Crim LJ 343.
Given these conclusions, it is unnecessary to consider ground 2 touching conviction. Moreover, since our conclusions with respect to conviction reopens the sentencing discretion — so that it will be necessary to resentence the appellant[22] — we need not consider the application for leave to appeal against sentence.
[22]See Criminal Procedure Act 2009, s 277(3). See also R v Gibb [1997] 2 VR 576; R v McL [1999] 1 VR 746; McL v The Queen (2000) 203 CLR 452.
Taking into account all relevant circumstances, we would impose a sentence of four years’ imprisonment on charge 2 of the trial indictment — which is the equivalent of the standard sentence — and make that sentence the base sentence.[23] We would otherwise confirm the individual sentences imposed on both the trial indictment and the plea indictment; the orders for cumulation as between sentences; and all other orders and declarations made by the County Court. The resulting total effective sentence will thus be 10 years’ imprisonment, upon which we will fix a non-parole period of seven years. It is convenient to reflect our overall intention in the following table:
[23]We note that in his oral reasons for sentence the judge announced that the sentence on charge 1 on the Trial indictment would be imprisonment ‘for seven years and six months’, yet the relevant Record of Orders signed by the judge states the sentence to be ’78 months’ imprisonment’ (or six years and six months). The orders for cumulation, and the declared total effective sentence of ‘13 years and 6 months imprisonment’ on the Trial indictment and Plea indictment, as set out in the Record of Orders strongly indicates that the judge intended to impose a sentence of seven years and six months’ imprisonment on charge 1, rather than 78 months’ imprisonment. Since the conviction (and resulting sentence) on charge 1 is to be set aside, we need not resolve the apparent anomaly.
Charge
Offence
Sentence
Cumulation
Indictment C2215382.2 (Trial indictment) 2 Sexual assault of a child under the age of 16 4 years Base 3 Sexual assault of a child under the age of 16 3 years 2 years 4 Sexual assault of a child under the age of 16 2 years 1 year 5 Sexual assault of a child under the age of 16 2 years 1 year 6 Sexual assault of a child under the age of 16 2 years 1 year Indictment C2215382A.1 (Plea indictment) 1 Accessing child abuse material 1 year — 2 Possessing child abuse material 2 years 1 year Total Effective Sentence: 10 years Non-Parole Period: 7 years Section 6AAA Statement (Plea indictment): Total effective sentence 3 years’ imprisonment with 2 years non-parole (Plea indictment) Other Relevant Orders:
1. Sentenced as a serious sexual offender pursuant to s 6F(1) of the Sentencing Act 1991 on charges 4, 5 and 6 of Indictment C2215382.2 (Trial indictment) and charges 1 and 2 of Indictment C2215382A.1 (Plea indictment).
2. Reporting obligation period is life pursuant to s 34 of the Sex Offenders Registration Act 2004.
TAYLOR JA:
Introduction
The applicant was convicted by jury of five child sexual offences involving three complainants. These were sexual penetration of a child under 12 (charge 1), sexual assault of a child under 16 (charges 3, 4 and 6) and producing child abuse material (charge 5). He pleaded guilty on a separate indictment to one charge of access child abuse material and once charge of possession of child abuse material.
On 27 April 2023 the applicant was sentenced as follows:
Charge
Offence
Max
Penalty
Sentence
Cumulation
Indictment C2215382.2 (Trial indictment) 1 Sexual penetration of a child under the age of 12[24] 25 years 7 years 6 months[25] Base 3 Sexual assault of a child under the age of 16[26] 10 years 3 years 2 years 4 Sexual assault of a child under the age of 16 10 years 2 years 1 year 5 Sexual assault of a child under the age of 16 10 years 2 years 1 year 6 Sexual assault of a child under the age of 16 10 years 2 years 1 year Indictment C2215382A.1 (Plea indictment) 3 Accessing child abuse material[27] 10 years 1 year — 4 Possession of child abuse material[28] 10 years 2 years 1 year Total Effective Sentence: 13 years and 6 months’ imprisonment Non-Parole Period: 9 years and 6 months Pre-sentence detention declared: 74 days Section 6AAA Statement: Total effective sentence 3 years’ imprisonment with 2 years non-parole (Plea indictment) Other Relevant Orders:
1. Sentenced as a serious sexual offender pursuant to s 6F(1) of the Sentencing Act 1991 on charges 4, 5 and 6 (Trial indictment) and charges 1 and 2 (Plea indictment).
2. Reporting obligation period is life pursuant to s 34 Sex Offenders Registration Act 2004.
[24]Contrary to 49A(1) of the Crimes Act 1958.
[25]See footnote 23 above.
[26]Contrary to 49D(1) of the Crimes Act 1958.
[27]Contrary to 51H(1) of the Crimes Act 1958.
[28]Contrary to 51G(1) of the Crimes Act 1958.
The applicant seeks an extension of time in which to seek leave to appeal against both conviction and sentence. With respect to conviction the proposed grounds are:
1.The Learned Trial Judge erred in failing to provide an unreliable evidence direction, as regards the evidence relating to Evelina Groves’[29] complaint to her mother about the alleged offending the subject of charge 1.
2.The guilty verdict on charge 1 is unsafe and unsatisfactory.
[29]A pseudonym.
The proposed grounds with respect to sentence are:
1. The Learned Trial Judge erred in treating the Applicant’s breach of trust as both a matter of aggravation and also as a matter that diminished the mitigatory weight to be afforded to the Applicant’s previous good character.
2. A lack of procedural fairness has occurred in circumstances where the Learned Sentencing Judge indicated his view, during the plea, that charge 1 was a low level example of that offence – and then sentenced the Applicant on the basis that charge 1 was a mid-level example of that offence.
3.The Learned Sentencing Judge erred in failing to pay sufficient regard to the principle of Totality and as a result imposed a head sentence and non-parole period that were manifestly excessive.
Extension of Time
The principles governing the discretion to extend time were summarised in Madafferi.[30] Guided by where the interests of justice lay in the particular case, the Court will look to the length of the delay and the reason for it as well as the prospects of the proposed appeal succeeding should the extension be granted.
[30]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
In this case the delay is of about three and a half months and is adequately explained in an affidavit sworn by Seda Kilic, the applicant’s solicitor, on 13 September 2023. Nonetheless I would refuse the application for an extension of time on the basis that the proposed grounds of appeal, both as to conviction and sentence, are without merit.
Factual background — trial indictment
The offending occurred between 29 March 2019 and 10 April 2019. The applicant was then 52 years of age. He lived alone in a regional Victorian town.
One of the complainants, Clarissa Heywood[31] — aged 4 years, lived with her family next door to the applicant. The other two complainants, Evelina Groves — aged 5 years and Willow Tanner[32] — aged 8 years respectively, were cousins. The applicant had been a long standing family friend of Evelina’s family and often babysat for them.
[31]A pseudonym.
[32]A pseudonym.
In March 2019 Evelina’s mother went on a brief overseas holiday. While she was away the applicant moved into her home to look after Evelina and her brother. He slept in Evelina’s mother’s room. During that period Willow had a single night sleepover at the house.
The Crown case was that on 29 March 2019 Evelina woke up from a nightmare, went to her mother’s bedroom and got into bed beside the applicant. He then penetrated her vagina with his finger (charge 1[33]). Willow’s sleepover occurred the following night. The applicant’s granddaughter, LW, was also present. The applicant set up a mattress in the living room from which the children could watch television. During the night, as the children were on the mattress, the applicant touched Willow’s vagina beneath her underwear (charge 3). When Willow’s mother attended the next day to collect her, she walked past Evelina’s bedroom and observed Evelina naked on her bed on all fours with the applicant applying cream to her anus and vagina. Evelina suffered from eczema and usually applied cream to herself following a bath. The prosecution alleged that the application of cream was driven by the applicant’s sexual interest in Evelina rather than medical purposes (charge 4).
[33]Charge 2 — sexual assault of a child under 16 — was pleaded on the indictment as an alternative to charge 1.
While staying in the house, the applicant took 13 photographs of Evelina. Seven depict her naked in the bath and show her vagina. Three of those seven show only Evelina’s vagina. The remaining six photographs were focused on the girl’s vagina as she lay on a pink sheet in bed. Three of those six depict a male hand pulling aside her underwear to expose the vagina. One of those six depicts male fingers opening the lips of the vagina (charge 5).
On 10 April 2019 the applicant invited Clarissa and her brother to his house to see his new chickens. They stayed for a while, watching movies and playing with toys. The applicant later told Clarissa’s mother that Clarissa had complained of a sore wrist, ankle and ‘giney’ (meaning vagina) so he had applied Band-Aids to her wrist and foot and wiped her vagina with a tissue. The prosecution alleged that the wiping of the vagina was driven by the applicant’s sexual interest in Clarissa rather than medical purposes (charge 6).
Factual background — plea indictment
The two charges with respect to child abuse material arose following the execution of a search warrant at the applicant’s home on 12 April 2009, in which a large number of electronic devices were seized. Such material was located on a mobile phone, three of four laptops and three of 12 hard drives (charge 2). Specifically, this material was:
(a)166 images on the mobile phone, of which 3 were of LW and 161 of Evelina. Some of these images depicted each girl naked and in a bath. Some depicted Evelina partially naked, in swimwear or clothed and focused on her genital region. The remaining image was a discretely captured image of a young unidentified female on public transport.
(b)A total of 4203 images on the laptops including two images of Evelina. In general the images depicted children from newborns to teenagers posing naked and/or suggestively, or engaged in graphic sexual acts.
(c)A total of 8,286 images on the hard drives.
The internet search history was analysed and indicated that the laptops and hard drives were used to download child abuse material (charge 1).
Conviction
Evidence — charge 1
Evelina participated in two visual and audio recorded evidence (‘VARE’) interviews on 18 April 2019 and 30 October 2021. At the time of those interviews she was aged six years and eight years respectively.
In the 2019 VARE Evelina gave no evidence relevant to charge 1 (but did describe the events relevant to charge 4). In the 2021 VARE Evelina described an occasion relevant to charge 1 but gave no evidence of penetration. She said that after waking and feeling frightened, she went first to her brother’s room, but her brother was asleep, so she then went to her mother’s bedroom where the applicant was. Evelina described the touching of her vagina under her clothes in the following terms:
… I could feel him putting his hand down my pants and that.
And he kind of hurt me while doing that ‘cause, like, my bone was pushed in and that, and it was really hurting.
Evelina described that she was on her side facing away from the applicant and he ‘went from the back of the pants first’ before moving his hand to the front. She said that neither she nor the applicant spoke. Evelina said that after the applicant had first touched her she got up and went to her brother’s room. The applicant then grabbed her and carried her back and the touching resumed. She said that the touching was similar on both occasions.
By the time of the special hearing on 8 November 2022 Evelina was nine years of age. Again she gave no evidence of penetration relevant to charge 1. She said that the applicant had touched her ‘private spot’. At the special hearing Evelina did give evidence that she had told three people about the incident relevant to charge 1. She told her best friend about the incident a few days after it had occurred. She told her mother after her mother had questioned her. Evelina said that this was prior to the first VARE. She told Willow about the incident after Willow had told her what the applicant had done to her (that is, Willow). Evelina said that they had spoken about that night ‘four or two’ times.
Evelina’s mother gave evidence that the applicant had telephoned her in about April 2019 to tell her that that ‘he was being touched’. (This was a reference to the fact that consequent upon the complaint of Clarissa’s mother about him wiping Clarissa’s vagina with a tissue, the applicant was interviewed by police on 12 April 2019. He denied any wrongdoing). Evelina’s mother said that she then questioned both of her children about whether they had felt uncomfortable when being looked after by the applicant. Neither said anything. About three or four days later Evelina told her mother that the applicant had applied the eczema cream to her vagina and said that she did not like it. Evelina’s mother said that Evelina usually applied the cream herself. Evelina’s mother said that in the same month the applicant arrived unannounced at her house in a ‘heightened’ state and told her that he had taken a photo of Evelina’s vagina while she was asleep. He said that he was worried that the eczema cream was not working and the photo was to show a doctor. The applicant said that he had deleted the photo when the eczema improved but was worried that it might be retrieved.
Evelina’s mother said that in January 2021 she had a conversation with Willow about the incident relevant to charge 3. Willow said that the applicant had touched her vagina underneath her clothes. Sometime after that conversation Evelina’s mother spoke to Evelina about the applicant for a third time. She said that she had received a telephone call from Evelina’s school about her behaviour. When questioned by her mother Evelina said that she was having a lot of thoughts about the applicant. Evelina’s mother said
… there was a night where she’d woken up and she was a bit scared so she went into my bedroom where [the applicant] was sleeping um, for comfort and she hopped into bed and then she said that he started touching her vagina and it really started to hurt. Um, she then got up and went into my son’s room [name of son], and then she said [the applicant] come in, grabbed her from the bed or from [son’s] room, and took her back to my bedroom where he continued to touch her vagina. Um, I asked her whether it was outside the vagina or inside the vagina and she told me it was inside the vagina and I think I kind of cut it off then because it was a bit too much for me at the time and I just needed go tell the right people.[34]
[34]Emphasis added.
Evelina’s mother said that both she and Evelina became upset. She asked what happened afterwards and Evelina said that she was too scared to do anything and fell asleep. Evelina also said that she was scared and wanted her big cousin Willow to stay over but wished that she had not because what had happened to Willow was her fault.
In cross-examination Evelina’s mother agreed that in her statement to police she had said
I asked [Evelina] when he touched you in your private areas, was it inside or outside’ and she replied ‘inside’.[35] I didn’t clarify any further because I was getting uncomfortable myself, [Evelina] was emotional and crying as she told me.
[35]Emphasis added.
The following then occurred:
Counsel: And is that different to what you told the jury today?
Prosecutor: Well, that’s an unfair question Your Honour.
His Honour: Well, what she told the jury today will be a matter for them but she’s told the jury that she ‘went to [name of son’s] room and [the applicant] came and took her back to her bedroom. He continued to touch her vagina. Was it outside or inside, she said ‘inside the vagina. I shut it down because I was upset’. That’s what she said to the jury today, in summary form.
Counsel: So, my question was [witness], was that different to what you --
His Honour: Well, that’s the one that’s objected to. I mean, I don’t ---
Counsel: Who’s objecting to it?
Prosecutor: I objected.
His Honour: He objected and that’s why I made – whether it’s different is a matter for the jury, isn’t it?
Counsel: I’m ---His Honour: Have you got any ---
Counsel:--- entitled to – beg your pardon Your Honour. All I’m doing is bringing to the witness’ attention that there may be a serious inconsistency there.
His Honour: Well, put the inconsistency. I don’t understand what it is. What do you suggest is different or inconsistent with what the witness said half an hour ago to what she now says.
Counsel: She never said it was inside her vagina.
His Honour: She didn’t use the words vagina. Was it outside or inside is what’s in her statement and she said inside or outside of her vagina here. Is that what you’re suggesting is different?
Counsel: Absolutely.
His Honour: Well ---
Counsel:You understand that [witness]? --- Yeah, I do and I agree with the judge. I, the only word that wasn’t used was vagina but my intent was the same outcome, was the same – I meant the same thing.
Defence counsel cross-examined the police informant as to the terms of Evelina’s mother’s statement and a note he had made. The note was in the following terms:
Full disclosure by [Evelina]. The night before [Willow] came to stay. Had nightmare, [applicant] collected her took her back to [mother’s] room where he was sleeping. Started touching her private parts, inside or outside ‘inside’. Went to [brother’s] room, [applicant] enters, took [Evelina] back, through with him, touched more, hurt’.
Application for unreliable evidence warning
At the conclusion of the evidence the applicant’s counsel asked for an ‘unreliable witness’ warning with respect to both Evelina and Willow. The application concerning Evelina was based on:
(a)Her initial denial or failure to complain when asked about the applicant by her mother in April 2019.
(b)Inconsistency in the evidence as to whom Evelina complained to first.
(c)The complaint being made after Evelina had been ‘mucking up at school’.
(d)An asserted contamination of the evidence as between Evelina and Willow and an ‘atmosphere’ within the extended family concerning the applicant.
In the course of argument, the trial judge expressed his view that the evidence did not fall within the usual categories of unreliable evidence. In so doing the judge referred to s 31 of the Jury Directions Act2015 (‘JDA’) including s 31(a) ‘hearsay verbals’. After counsel contended that the grounds upon which an ‘unreliable witness’ direction can be given are never closed, the following exchange occurred.
His Honour: And the arguments you address go to their credit. Clearly I’m obliged to say to the jury, the good reasons why kids are kids don’t relay things on the same event and its usual for people to give different versions at different times, all the standard directions that are now there, I can’t then turn around and say, but because of that you should believe them or there’s issues about their credibility and you must take that into account.
Counsel: Well that’s what I’m asking your Honour to do.
His Honour: No. Do you think I should?
Counsel: And that’s not only, and that’s on both of them.
…
His Honour: You want me to say that because they didn’t make, because they said ‘no’ on two occasions when asked if anything had happened, the fact that they subsequently said that there was something makes them unreliable?
Counsel:No, there’s more than that. Then there’s [Evelina] says, ‘tell me the first person that you told’ and then goes ‘oh I can’t remember’, you know, ‘I told her three days after it happened’, --- so it goes on and one and then it’s like, ‘when did you talk to her?’, ‘oh I never spoke to her on the phone.’
His Honour: Well what you’re saying is that there are so many contradictions in their evidence that you shouldn’t believe them or something ---
Counsel:No, there’s contamination that comes in. So first of all there’s the unreliability of the evidence taking a year and a half to happen, there’s mucking up at school, there’s going to the multidisciplinary centre together. Then there’s this contamination.
…
His Honour: I don’t see any basis for an unreliable witness warning. I think there’s no, what you’re addressing are arguments as to why you shouldn’t believe them, but they’re not of a nature of the witnesses that are unreliable, they haven’t got drug habits or they haven’t been involved in hanky panky themselves. You haven’t, you’ve put the proposition that they made these stores up to support teach other, and that was denied.
After counsel again developed his argument as to contamination, the judge asked if there were any more reasons for the requested warning than already been articulated. Counsel replied in the negative.
The judge declined to give the direction on the bases that there was no basis to do so and that there was a good reason not to do so, namely that the JDA otherwise provided for directions to be given in respect of the issues raised.
Prosecution closing address
The prosecutor identified penetration as the ‘substance’ of charge 1. He told the jury that Evelina did not say in her VARE that the applicant had digitally penetrated her vagina. Rather, she had said that the applicant touched her ‘private spot’, which she identified as her vagina. The prosecutor continued:
So, you probably say well where does the evidence come from in relation to the charge, charge 1, of sexual penetration, and it ultimately comes from her mother and what her mother says she was told by [Evelina].
The prosecutor said that the judge would give directions as to the use the jury could make of that evidence of complaint – the evidence of Evelina’s mother when she said ‘the [applicant] touched her inside’. The prosecutor continued:
Now, as I said to you, my learned friend gets to speak after I’ve spoken. He might say things to you about, ‘Oh that might be the inside of the underwear’ as opposed to the inside of her body, her vagina. Well, you weigh that up and that’s a matter ultimately for you.
Defence closing address
In his closing address to the jury, counsel for the applicant developed the argument that the evidence of Evelina and Willow was contaminated. As to the issue of penetration on charge 1, counsel said:
Now just lastly, just on the penetration, well my learned friend’s pretty much cleared all that for you. I mean just, that’s it. That’s the evidence they’ve got. That’s why I had him in the – that’s why I had the informant cross-examining him on that tiny little piece of paper, about a note, because it’s important to my case. They’re going, ‘oh come on’ we’ve got the mother saying it, she made a statement, she didn’t say that in the statement, what does she say there? That’s the important – that’s why I was making a big deal out of it, but I say that didn’t happen at all, that, those things, but I’m not blaming them for it. I’m not saying that they’ve done anything wrong, but I really, I think, it’s he’s done something wrong, he’s created it, he started it all just by the stupidity of it all. Alright, I think I’ve made my point. Nothing further.
Judges charge
In his charge to the jury the judge explained that charge 2 was an alternative to charge 1. The judge continued:
Now, the issue for you to consider in that is simply this; was there penetration? The offence alleged is intentional sexual penetration of a child, by introducing his finger into the vagina. The sole evidence that the Crown have to support the allegation of penetration comes from what [Evelina] said to her mother, and I’ll come back to that later, but that’s the issue that defines what you have to deal with in relation to charge 1.
Charge 2, the issue is did it happen at all? [Evelina] gave evidence … she describes what she says occurred to her in that room. You will remember there has been a lot of evidence about basically she said she got scared and went into her mother’s room. She says she was touched in the vagina and then she went back to her brother’s bedroom, and the accused came and got her and brought her back to her mother’s room and continued to touch her.
She did tell you that she felt pain. She did tell the police that she felt pain, but she was not asked by anybody about whether or not and did not say to you in giving evidence that the finger penetrated her vagina. She did say that to her mother. She said that it was on the inside not the outside, and that is, you heard the submissions made about that, whether that means inside her clothes or whatever it means, was that inside her vagina. When you think about the pain, the Crown invites you to infer that there was penetration, but if you are not satisfied beyond reasonable doubt about that, that there was in fact penetration by the finger to any extent of the vagina, did he penetrate her vagina at all. Now if the answer to that is you cannot be satisfied that he did, you must return a verdict of not guilty.[36]
[36]Emphasis added.
Before returning to the issue of penetration with respect to charge 1 the judge directed the jury that if satisfied that when Evelina told her mother that she was touched inside ‘she meant inside her vagina and she said it’, that evidence could be used as evidence of penetration. Later, the judge said
As I told you at the start of my charge, the only evidence in relation to that comes from [Evelina’s] mother, who said that she asked him [sic] whether he touched her on the inside or the outside, and she said inside. If you accept that (a), [Evelina] said that; and (b), it was the truth, and if you are satisfied beyond reasonable doubt that this is what occurred, it would be open to you to find that there was sexual penetration. That is the whole issue on that count.[37]
Applicant’s Contentions
(1)Ground 1
[37]Emphasis added.
The applicant contends that there were substantial and compelling reasons to give an unreliable evidence direction regarding the complaint evidence relevant to charge 1. Ten matters are relied on:
(a)The complaint evidence did fall into one of the categories of unreliable evidence.
(b)The complaint evidence related to an event alleged to have occurred two years prior.
(c)At the time of making the complaint, Evelina was five years old.
(d)The complaint of penetration lacked precision.
(e)Evelina’s mother told police that she did not clarify matters further, asking only whether the applicant touched her inside or outside her ‘private areas’.
(f)Evelina’s mother told police that she did not clarify the answer Evelina provided.
(g)The complaint was made when both Evelina and her mother were ‘bawling their eyes out’.
(h)The trial evidence of Evelina’s mother demonstrated her difficulty in accurately restating the precise terms of the conversation.
(i)There was no other body of evidence supporting the reliability of the complaint. Evelina had given no evidence of penetration in either VARE. The prosecutor did not seek to lead evidence from her at the special hearing.
(j)There was confusion as to when the complaint conversation was supposed to have taken place.
(k)The prosecutor and the applicant’s counsel advanced different interpretations of the conversation to the jury in final addresses.
(l)The jury was directed that the complaint evidence was the only evidence of penetration relevant to charge 1.
(2)Ground 2
The applicant contends that for the same reasons advanced under ground 1, the verdict on charge 1 is unsafe and unsatisfactory. That is, the complaint evidence is too unreliable and uncertain to allow satisfaction beyond reasonable doubt as to penetration.
Respondent’s contentions
(1)Ground 1
The respondent argues that the reliability of the complaint made by Evelina to her mother encompasses two aspects. First, the reliability of Evelina and what she told her mother about charge 1. Second, the reliability of Evelina’s mother and what she told the jury about Evelina’s account of charge 1.
While the applicant’s counsel did seek an unreliable witness direction with respect to Evelina, he did not with respect to her mother. The judge was, therefore, prohibited from giving such a direction unless there were substantial and compelling reasons to do so.[38] The respondent submits that there were none in this case. While the complaint evidence, as hearsay, was of a kind prescribed in s 31 of the JDA, the matters relied upon by the applicant do not combine to produce substantial and compelling reasons.
[38]JDA, ss 15-16.
As to those matters, the respondent argues that:
(a)Delay in complaint about a sexual offence is not a ‘significant matter’ that ought to attract an unreliable evidence direction pursuant to s 32 of the JDA. To the contrary, it would counter-act the mandatory direction under s 52 of the JDA.
(b)Neither is a child’s age a ‘significant matter’. The jury were aware of Evelina’s age, observed her evidence and were directed, correctly, under s 44N of the JDA that children can accurately remember and report past events.
(c)The evidence of Evelina’s mother at trial as to the making of the complaint was not imprecise. It was clear.
(d)The distress experienced by both Evelina and her mother at the time the complaint was made did not detract from its reliability. In any event Evelina’s mother evidence was that the ‘bawling their eyes out’ started after the complaint had been made.
(e)Lack of corroboration is not a ‘significant matter’ suggestive of unreliability. It is common place in sexual offence matters, particularly those involving children. In any event there was other evidence supportive of penetration.
(f)There was no confusion as to when the complaint conversation occurred.
(g)The different interpretations of the complaint conversation as to whether inside/outside concerned sexual penetration or something else, namely clothing, was a matter for the jury to determine. The arguments made by counsel had no bearing on the need for a s 32 JDA warning.
(h)The complaint evidence particularised the sexual penetration alleged in charge 1 but the prosecution relied upon Evelina’s description of pain being consistent with penetration. The trial judge accurately summarised the argument and correctly directed the jury as to the need to be satisfied beyond reasonable doubt of digital penetration.
The respondent argues that all of these matters were before the jury. The judge accurately summarised the arguments of counsel and gave appropriate directions.
(2)Ground 2
The respondent contends that the verdict on charge 1 is not unsafe and unsatisfactory.
In particular, there was nothing at all unusual in Evelina’s failure to complain to an adult in a timely manner about the incident relevant to charge 1 or in contradistinction to her complaint about the incident relevant to charge 4. Further, there is no other reason why the jury’s assessment of her evidence as both credible and reliable should be disturbed.
Analysis
(1)Ground 1
Section 31 of the JDA defines ‘evidence of a kind that may be unreliable’. The inclusive definition refers to both hearsay evidence and evidence the reliability of which may be affected by age.
Section 32(1) provides that trial counsel may request under s 12 that the trial judge direct the jury on evidence of a kind that may be unreliable. In making such request, counsel must specify the significant matters that may make the evidence unreliable.[39] If the request relates to evidence given by a child, the party making the request must specify the significant matters other than solely the age of the child that may make the evidence of the child unreliable.[40] If the judge gives the requested direction with respect to evidence given by a child, he or she must inform the jury of the significant matters other than solely the age of the child that the judge considers may make the evidence of the child unreliable[41] and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.[42]
[39]JDA, s 32(2)(a).
[40]JDA, s 32(2)(b).
[41]JDA, s 32(3)(b)(ii).
[42]JDA, s 32(3)(c).
Trial counsel for the applicant in this case did not ask for a direction as to unreliable evidence. As is evident from the passages of the transcript referred to above, at no stage was the hearsay nature of the evidence of penetration given by Evelina’s mother articulated as the significant matter that triggered the need for the direction. Rather, counsel asked for an ‘unreliable witness’ warning with respect to Evelina and Willow. The judge’s statement that the evidence did not fall within the ‘usual categories’ must be understood in light of what he was being asked to do. In discussion with counsel the judge referred to the categories in s 31, including (a), what he termed hearsay and verbals. Counsel did not indicate that he relied upon s 31(a). That the judge understood that the request was founded on a characteristic of the child complainants – something akin to categories (c) and (d) — rather than the hearsay evidence given by the mother of one of them — is made plain by his later statement that neither had a drug habit or had been involved in ‘hanky panky’ themselves. Again, counsel did not use the word ‘hearsay’ in pressing his submission. Counsel instead focused on inconsistencies in the evidence and the possibility of contamination.
As this Court has emphasised, that s 32 does not refer to evidence that is unreliable but to evidence that is of a kind that may be unreliable is significant to its operation.[43] While the s 31 definition of ‘evidence of a kind that may be unreliable’ is not exhaustive, evidence of a kind that will attract an unreliable evidence direction will generally involve significant questions as to the reliability of the witness’s evidence beyond routine issues of credit and reliability. The challenge to a complainant alleging sexual offending as to delay in complaint, imprecision in complaint, changes to his or her account and suggestibility (or contamination) are very routine. There was no error in the judge refusing the ‘unreliable witness’ direction in fact requested.
[43]Movel (A Pseudonym) v The King [2024] VSCA 183 [164] (Niall and Orr JJA) (‘Movel’).
The issue under ground 1, then, is not the judge’s refusal to give the requested direction but whether there were substantial and compelling reasons to give a different unreliable evidence direction with respect to the hearsay nature of the evidence of penetration.
In my opinion there were not.
The contested aspect of the complaint evidence was very limited. There was no dispute in the trial that Evelina had made a complaint to her mother about the applicant touching her vagina relevant to charge 1. There was no dispute that Evelina’s mother then asked her whether the touching was inside or outside. What was in dispute was whether in asking that question Evelina’s mother specifically asked whether the touching was inside or outside the vagina or simply inside or outside at large. As detailed above, that issue arose from the absence of the word ‘vagina’ in Evelina’s mother’s police statement.
In other words, the issue was not whether the hearsay evidence of Evelina’s mother was reliable generally, but only whether she accurately recalled the use of a single word. Notably, the hearsay evidence that Evelina said ‘inside the vagina’ was in response to a question asked of her by her mother. That Evelina’s mother accurately recalled the terms of her question as including ‘vagina’ is rendered likely because Evelina had already told her mother that ‘it really started to hurt’. That information would inform a mother’s concern to understand the extent of what her child said had occurred. It would frame the next question or questions asked. If the question was likely to be accurately remembered, so too was the answer, irrespective of what emotions it produced or how that exchange was recorded in a police statement.
Moreover, the discrepancy, if it is one, in the statement and in the notes recorded by the informant was exposed before the jury in evidence. Counsel did not seek to rely upon the discrepancy as a prior inconsistent statement. He did not refer to the issue in his closing address. He did not suggest that the jury should take care in accepting that Evelina’s mother asked, and Evelina answered, that the applicant had touched her inside the vagina, as opposed to insider her underwear or anything else. Rather, counsel spoke about ‘four mothers’ who thought that the applicant was guilty and ‘created an environment’ in which Evelina and Willow would ‘make up’ the further allegations. He argued at length that each of them had made up allegations to support the other. The only direct comments made by counsel as to the issue of penetration on charge 1 are extracted above.
Both the prosecutor and the judge clearly identified for the jury that the only evidence of penetration on charge 1 was the evidence given by Evelina’s mother as to what Evelina said to her during the complaint conversation. The judge correctly charged the jury as to the use that could be made of that evidence if satisfied that Evelina had said ‘vagina’.
In all the circumstances of this trial there were no substantial and compelling reasons requiring the judge to give an unreliable evidence direction with respect to the evidence of penetration given by Evelina’s mother.
Ground 1 must fail.
(2)Ground 2
It follows that for the same reasons, the evidence of penetration given by Evelina’s mother was neither unreliable nor uncertain.
Ground 2 must fail.
Sentence
Sentencing reasons
In commencing his sentencing reasons[44] the judge gave a precis of the charges of which the applicant was convicted by the jury and also of the charges on the plea indictment. The judge termed the offences ‘extremely serious’ and noted the applicable maximum penalties. Next, the judge considered the victim impact statements.
[44]DPP v Kovachev (a pseudonym) [2023] VCC 689 (‘Reasons’).
The judge then summarised the applicant’s personal circumstances. In short these were as follows. The applicant was 55 years of age when sentenced. Both his parents are deceased. His father died of a heart attack when the applicant was 11 years old. Thereafter his mother remained single until her death of multiple strokes when the applicant was in his early 20s. He is the youngest of seven children. The family were committed to the Jehovah’s Witness faith. The applicant broke away from that faith in his teenage years. He has had no contact with his siblings since they became aware of his offending.
The applicant was expelled from high school in Year 8 or 9 for being a ‘troublemaker’. He later passed Year 10 at a different school. He left school altogether when aged 16. He lived by himself in a caravan engaged in labouring and retail work. The applicant then returned to the family home and by the age of 18 had started working as a communications technician with Telecom. He remained employed in that field for about six years.
During that time he met and married his first wife. That marriage lasted about six years and produced two children. The applicant no longer has contact with them. During the marriage he accepted a retrenchment package and established an automotive business. In his 30s the applicant moved to Queensland and worked as a self-taught welder and a mechanic and a chef. He met a new partner online. They lived together for a while but the relationship did not last. He has been single since then, a period of about 10 and a half years. In about 2011 the applicant established his own business installing aerials and television cabling.
The applicant has some health issues including sleep apnoea. He had had hip replacement surgery and a stent. The judge accepted that these issues were likely to make the applicant’s time in custody more onerous for him.
The judge had received a psychological report of Jeffrey Cummins. The applicant denied to Mr Cummins that he had any specific interest in child abuse material. He said that he viewed and possessed it because it popped up when he looked at adult pornography. Mr Cummins said that this denial raised concerns and said that participation in the sex offenders’ program might help the applicant develop more insight. Mr Cummins said that the applicant has no psychological disorders.
The judge also referred to references tendered on the applicant’s behalf.
The judge accepted that the applicant’s pleas of guilty to the access and possess child abuse material charges were to mitigate his sentence. Their utilitarian value was augmented because they were made during the time when the court was dealing with a backlog of cases as a result of the pandemic.
As the applicant was to receive a sentence of imprisonment on all charges, the judge noted that he was to be sentenced as a serious sexual offender in respect of charges 4, 5 and 6 of the trial indictment and both charges of the plea indictment. The judge noted that protection of the community was therefore the principal sentencing consideration. The judge recorded the prosecution submission that a disproportionate sentence was not required.
The judge then said:
Your offending against your young victims was a gross breach of the trust placed in you by the family of these children. Your conduct has had a powerful effect on your victims and their family. Although this court all too often has to deal with offending such as yours, and your sexual penetration offences properly described as a mid-level example of such offending, overall, the breach of trust and the young age of your victims demonstrate your moral culpability to be extremely high.
You exhibit absolutely no remorse for, nor insight into, your offending. You possess a significant quantity of child abuse material which is not only alarming but demonstrates the tendency you acted upon when you offended against your young female victims. You traded on your prior good character to put yourself in the position to commit these crimes. Your prior character then has less weight in the sentencing process.[45]
[45]Reasons, [52]–[53].
The standard sentence relevant to charges 1, 3, 4 and 6 of the trial indictment was noted by the judge. He said again that the applicant’s sexual penetration offending was a mid-level example of the offence. The judge made differential findings of gravity with respect to the sexual assault charges, finding charges 2, 3 and 6 to be mid-level and charge 4 to be a lower level example.
The judge said that the applicant’s moral culpability was high, given the deliberate offending against very young children entrusted to his care motivated by deviant personal sexual interest. Both general and specific deterrence were said to be important.
The child abuse material was also found by the judge to be ‘serious’. The applicant photographed himself touching Evelina. He lied to her mother about that photography. The applicant had significant quantities of depraved child abuse material on his electronic devices, including images of his very young granddaughter. The judge said that the offending comprised mid-level examples of the offences.
The judge said that the principle of totality and issues of cumulation of sentences were important. While the offending against each victim had to be recognised in the individual sentences imposed, some concurrency was appropriate to reflect the principle of totality.
Applicant’s contentions
(1)Ground 1
The applicant contends that the prosecution conceded that he was to be treated as a person of good character. During the plea hearing he relied upon character references, voluntary contributions to the community and his good work history. The judge found that his prior convictions were dated and of no relevance. In passing sentence the judge found the breach of trust involved to be an aggravating feature of the offending. The judge also accepted the prosecution submission that the applicant’s prior good character allowed him to be in a position of trust. The applicant contends that, thereby, the judge impermissibly ‘double counted’ the breach of trust and decreased the weight to be afforded to his prior good character.
(2)Ground 2
The applicant contends that he has been denied procedural fairness as a result of the judge’s finding that charge 1 was a mid-level example of the offence in circumstances where, during the plea hearing, the judge said that the offending was a low level example. It is argued that the judge was required to inform that applicant that he intended to depart from his stated position.
(3)Ground 3
The applicant contends that the judge failed to give weight to the principle of totality. The sentences imposed on charge 1 and charge 4 demonstrate that the judge did not attempt to ‘accommodate totality’ by lowering the individual sentences. Further, notwithstanding that there were three victims of contact offending, the timeframe of that offending meant that substantial concurrency between those sentences was called for. In particular, the order for cumulation of 2 years’ imprisonment on charge 3 to be served cumulatively on charge 1 is argued to illustrate the point. Finally, it is submitted that it follows that the non-parole period is also manifestly excessive.
The applicant acknowledges that, at the plea hearing, his counsel nominated a total effective sentence of 12 years’ imprisonment to be within the appropriate range of available sentences. It is argued that this submission should not ‘stand in the way’ of this proposed ground of appeal succeeding.
Respondent’s contentions
(1)Ground 1
The respondent submits that the applicant conceded that his prior good character should carry less weight in the sentencing exercise given that it involved sexual offending against multiple child victims. The judge, nonetheless placed some weight on it. The judge’s later comment that the applicant had ‘traded’ on his good character (reproduced at [101] above) is argued to reflect the fact that the applicant’s position of trust arose in the context of a family or neighbourhood setting. That is, the applicant had not earned his good character while acting in the role in which the offending occurred. His access to the victims was permitted by reason of him not having any known deviant sexual interest in pre-pubescent females. The respondent argues that at no point did the judge state that the breach of trust aggravated his offending. Rather that breach was noted in the context of the impact of the offending on the victims and as relevant to the assessment of the applicant’s moral culpability. As objective gravity and moral culpability are separate factors, there was no ‘double counting’ of the breach of trust.
The respondent further submits that if the error contended for is made out, it had no material significance in the overall sentencing exercise as it is plain that the sentencing judge did give weight to the applicant’s otherwise good character.
(2)Ground 2
The respondent disputes the assertion in the proposed ground and notes that during the plea hearing the judge described charge 1 as a ‘lower level’ penetration offence when compared with a ‘top end’ offence. It is argued that there is no inconsistency between ‘not high level’ and ‘mid-range’. Further, it is contended that the applicant’s counsel had every opportunity to address the court as to the relative seriousness of the offending.
(3)Ground 3
The respondent highlights the seriousness of the offending, noting it involved contact offending against three very young children and possession of more than 12,000[46] images of child abuse material. The applicant was significantly older than his victims and the offending involved gross breaches of trust. The respondent further argues that the applicant had little to call on by way of mitigation of penalty. He was convicted after a trial in which the children and their family members had been cross-examined. He lacked any remorse or insight and continued to deny his offending. His moral culpability was ‘extremely high’. He had no psychological or psychiatric diagnoses and there was no evidence that he bore the hallmarks of a deprived or disadvantaged background.
[46]A figure of over 13,000 is also used in the Summary of Prosecution Opening for Plea.
The respondent argues that the judge was required to impose a sentence which appropriately reflected the distinct criminality of the offences on two indictments. There was a presumption of cumulation on charges 4, 5 and 6 of the trial indictment and charges 1 and 2 of the plea indictment because the applicant fell to be sentenced as a serious sexual offender. The judge was required to give primacy to community protection in the sentencing exercise. Nonetheless it is argued that the judge gave specific consideration to the issue of totality.
It is argued that the individual sentences, orders for cumulation and non-parole period are all well within range. Given the applicant’s counsel concession that a total effective sentence of about 12 years’ imprisonment was within range, the 13 years and 6 months’ imposed cannot be said to be wholly outside that range.
Consideration
(1)Ground 1 – breach of trust
This applicant relies upon the decision of this Court in Torrefranca v The Queen[47] to support his argument. That case concerned charges of sexual assault and sexual penetration of a person with a cognitive impairment with respect to two victims. Each of them had intellectual and physical disabilities. The applicant was employed as a disability support worker in the supported accommodation facility in which they lived. The sentencing judge had said that the offending was aggravated by a ‘truly shocking’ breach of trust against vulnerable victims. The judge had accepted the applicant was of prior good character but found that it mattered less given he needed to have been of good character in order to be in the position of trust exploited in the commission of the offences. Nonetheless the judge gave accorded some mitigatory weight to the applicant’s good character. The applicant contended that the judge erred by diminishing the weight to be given to his prior good character on the basis that he exploited it in order to the commit the offences, while also treating the applicant’s breach of trust as an aggravating factor.
[47][2021] VSCA 157 (McLeish and Osborn JJA) (‘Torrefranca’).
The Court said that two aspects of good character were in play. The first was the extent to which the significance of prior good character is diminished where the offending has involved a breach of trust. The second was the need to avoid double punishment.[48]
[48]Torrefranca, [38]–[39].
In the first, the weight of good character will be diminished where the offending has involved a breach of trust. It may be ‘very considerably diminished in the case of repeated offending closely connected with the context in which the good character was earned’. If that connection is absent and the offending is isolated, the diminution will be likely to be much less.[49]
[49]Torrefranca, [38].
With respect to the second, the Court said:
If good character has been diminished as a sentencing consideration by virtue of the offender’s breach of trust, that breach of trust cannot also be taken into account in aggravation of the penalty to be imposed, and vice versa. This does not mean that good character ‘cancels out’ the breach of trust: the sentencing judge need not give equal weight to the aggravating impact of a breach of trust and to the offender’s prior good character. The sentencing judge, as explained in the above passages, need only ensure the same breach of trust is not counted twice, so as to amount to double punishment.[50]
[50]Torrefranca, [39].
In that case the Court found no error in the judge reducing the weight attached to prior good character because it had assisted him to be in a position to commit the offences. The Court did, however, find that the judge erred by also placing weight on the ‘truly shocking’ breaches of trust as aggravating the seriousness of the offending while at the same time affording the applicant’s prior good character less weight because it facilitated the breaches of trust.[51]
[51]Torrefranca [40]-[41].
It is clear from the Reasons in this case that the judge considered both aspects of good character identified in Torrefranca.
First, the judge accepted the applicant to have been of prior good character, but gave that factor less weight in the sentencing process because he ‘traded’ on it to put himself in the position to offend. That is, the applicant did not earn his good character by child minding, but was entrusted to child mind because of his good character. There is no argument that the judge gave too little weight to the applicant’s character in balancing those factors.
Second, the Reasons demonstrate that the judge did not ‘double count’ the breach of trust as being a matter that also aggravated the objective seriousness of the offending. The ‘breach of trust’ was referred to twice. Once, as extracted above at [65] and the other when the judge said
Your moral culpability is high, given that you deliberately offended against very young children entrusted to your care.[52]
[52]Reasons, [58].
Very clearly the judge refrained from finding that the breach was an aggravating factor of the seriousness of his offending. Instead, the Reasons show that the judge considered the issue of breach of trust as relevant to victim impact and moral culpability.
It follows that the error contended for has not been demonstrated. Proposed ground 1 must fail.
(2)Ground 2 - gravity
Ground 2 is without merit.
During the course of the applicant’s counsel’s submissions during the plea hearing the judge said:
When you’re talking about the objective gravity, obviously the penetration offence that he was convicted of is not at the top end of it. It’s a lower level penetration offence if there is such a thing. It’s obviously a brief digital penetration, not a – it could be a lot worse, if you put it that way.
Later, in discussion with the prosecutor, the following exchange occurred in the context of the applicable standard sentence:
Judge: But you would concede, I haven’t read your submissions but I assume you would concede that the sex pen offence, charge 1, is objectively at a lower level of offences of that kind.
…
Prosecutor: Yes, Your Honour. Your Honour made the observation, it could be a lot worse, of course it could be a lot worse but of course the authorities also say that this type of offending is inherently serious and once you’ve ---
Judge: It’s all horrible and nasty and appalling and I’m not trying in any way to condone it. But the digital penetration does not appear to have been extensive on the evidence before me. It was more – it’s not condoning it, it’s not a high level penetrative offence, putting it that way.
Prosecutor: Yes, I concede that, Your Honour.
Quite clearly the judge never described the offending as ‘low level’. The judge used the descriptor ‘lower level’ as a comparator with ‘top end’ and ‘high level’. Further, the applicant’s counsel had a number of opportunities to address the issue of the gravity of offending. There was no denial of procedural fairness.
Ground 2 must fail.
Ground 3 - totality
The sentencing exercise facing the judge was a difficult one.
Charge 1 was the most serious individual offence. It involved the sexual penetration of a five year old who had sought comfort from the applicant after a nightmare. The offending occurred in her mother’s bed. The offending was persistent: the applicant brought Evelina back from her brother’s bedroom to continue the abuse. Charge 4 was separate offending against the same child in which the applicant exploited her need for medical attention for his own sexual gratification. Beyond the circumstances of those individual charges, the judge was required to sentence the applicant for contact offending against three very young children entrusted to his care and for child abuse material charges involving a very significant number of images and including images of one of his three victims as well as his granddaughter.
The applicant’s matters in mitigation were limited. His prior good character was given in less weight in the manner discussed under ground 1. He had no remorse or insight. Aside from the two charges on the plea indictment, he continued to deny his offending.
Further, the judge was obliged to give dominant weight to the community protection in the sentencing matrix given that the applicant fell to be sentenced as a serious sexual offending on charges 4, 5 and 6 of the trial indictment and charges 1 and 2 of the plea indictment.
The judge was very conscious of the need to apply the principle of totality. During the plea hearing the judge said ‘[t]otality is a real issue in this’. In the Reasons the judge said
Clearly principles of totality affect the issue of cumulation of sentence in your case. Your offending against each victim must be recognised in the sentence imposed, which some concurrency is appropriate to reflect totality principles.[53]
[53]Reasons, [60].
In neither the individual sentences nor the orders for cumulation is error discernible. The individual sentences are within range. The impugned orders for cumulation properly take account of protection of the community as well as the need reflect the separate individual offences. The total effective sentence is not crushing. The resulting non-parole period, being 70 percent of the head sentence, is unremarkable.
For the sake of completion, the concession of the applicant’s before the judge that a total effective sentence of about 12 years was within range is of little relevance to the consideration of error alleged.
Ground 3 must fail.
Conclusion
The application for an extension of time in which to apply for leave against both conviction and sentence must be refused.
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