Aung Thu v The Queen
[2017] VSCA 28
•24 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0056
| AUNG THU | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 February 2017 |
| DATE OF JUDGMENT: | 24 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 28 |
| JUDGMENT APPEALED FROM: | DPP v Thu (Unreported, County Court of Victoria, Judge Gamble, 30 October 2015 (Tendency Ruling) and 11 March 2016 (Sentence)) |
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CRIMINAL LAW – Appeal – Conviction – Tendency evidence – Rape – Whether conduct towards victim, including text messaging, probative of a tendency to have a relevant sexual interest in the complainant and a willingness to act on that interest in respect of complainant – Whether conduct had significant probative value – Guilty passion evidence – Application for leave to appeal granted – Appeal dismissed – Evidence Act 2008, ss 97 and 101.
CRIMINAL LAW – Appeal – Sentence – Rape (1 charge), indecent act with child under 16 (3 charges) – Four complainants – Whether sentence of 9 years and 6 months with non-parole period of 7 years manifestly excessive – Not reasonably arguable that individual sentences, orders for cumulation, total effective sentence or non-parole period were manifestly excessive – Application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | Cook & Associates |
| For the Respondent | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA
McLEISH JA:
On 23 November 2015, following a 10-day trial in the County Court, the applicant was convicted of one charge of rape. At the same time, the applicant was acquitted of three charges of committing an indecent act with, or in the presence of, a child. The complainant in respect of all four charges, AA, was 10 years of age at the time of the alleged rape.
On 15 December 2015, the applicant pleaded guilty to three charges of committing an indecent act with, or in the presence of, a child. These offences were committed with respect to three other complainants, BB, CC and DD. The complainants BB and CC were aged eight years at the time of the offending against them, and DD was aged nine years at the time of the offending against her.
Following a plea hearing on 25 January 2016, the applicant was sentenced on 11 March 2016 as follows:
| Charge on Indictment F10581626.1AA | Offence | Maximum | Sentence | Cumulation |
| 1 | Rape [Crimes Act 1958 s 38(1)] | 25 years [Crimes Act 1958 s 38(2)] | 8 years and 4 months | Base sentence |
| Charge on Indictment F10581626.2B | ||||
| 1 | Indecent act with a child under 16 [Crimes Act 1958 s 47(1)] | 10 years [Crimes Act 1958 s 47(1)] | 14 months | 4 months |
| 2 | Indecent act with a child under 16 | 10 years | 16 months | 6 months |
| 3 | Indecent act with a child under 16 | 10 years | 15 months | 4 months |
| Total Effective Sentence: | 9 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 7 years | |||
| Pre-sentence Detention Declared: | 109 days | |||
| 6AAA Statement: | Charge 1: 20 months, with 6 months’ cumulation Charge 2: 24 months, with 8 months’ cumulation Charge 3: 21 months, with 6 months’ cumulation |
| Other orders: Sentenced as Serious Sexual Offender on charges 2 and 3. Forensic sample order. | |
The applicant now seeks leave to appeal against his conviction on the rape charge and the sentences imposed upon him by the judge. The application for leave to appeal against conviction relates to the admission of tendency evidence, and is in the following terms:
1A substantial miscarriage of justice occurred by reason of the prosecution being permitted to rely upon, in proof of Charge 1 (which was alleged to have occurred in 28 August 2010), and on the basis that it demonstrated that the applicant had ‘an ongoing tendency to have a sexual attraction to the complainant’, evidence that:
(a)the applicant’s telephone had been used to dial the complainant’s telephone numerous times between the end of December 2012 and February 2013;
(b)ten messages, arguably sexual in nature, had been sent from the applicant’s telephone to the complainant’s telephone between 11 and 16 February 2013.
With respect to the sentence imposed by the judge, the applicant seeks leave to appeal on the grounds that the individual sentences, the orders for cumulation, the consequential total effective sentence and the non-parole period are all manifestly excessive.
Conviction: the Crown case
The rape with which the applicant was charged was alleged to have taken place on 28 August 2010, two days after AA turned 10. On that day, the applicant, who was a friend of AA’s family and part of their local Burmese community, attended a party for AA. In summary, the Crown case on the rape charge was that the applicant took AA away from the party, for the stated purpose of buying decorations for the party. The applicant, however, took AA to his house, saying he had to pick something up. He then took her into his bedroom, locked the door and proceeded to have penile vaginal intercourse with her. AA was upset and crying throughout. The applicant then told AA that if she told anyone, she would bring shame and embarrassment on her family.
AA’s evidence
AA gave evidence of the events that occurred on 28 August 2010 as follows. On the day, it was a party for AA’s tenth birthday. The applicant was present. The applicant wanted to take her to the shops in order to buy some items for the party. AA was reluctant to leave her home and go with him, but, after her parents gave their permission for the applicant to take her to the shops, she went with him. However, instead of going to the shops, the applicant took her back to his house under the guise of having to pick something up. On arriving there, the applicant took her into his bedroom, over AA’s initial objections, and then locked the door and proceeded to undress her before having penile vaginal intercourse with her for some time. AA gave evidence that while that was occurring, she was crying and unable to physically prevent him from doing what he was doing.
AA also gave evidence of contact she had with the applicant both before and after she was raped, text messages she received from the applicant and attempts by the applicant to phone her. Prior to trial, the Crown filed a tendency notice in which it made application to lead this evidence as tendency evidence. The tendency sought to be proved was:
The tendency of [the applicant] to act in a particular way towards [AA] namely:
(i) to have a sexual interest in [AA] a prepubescent female child;
(ii) a willingness to act on that sexual interest in respect of [AA].
AA’s evidence was that there were many occasions, starting before the day of the rape and continuing after that day, where the applicant would tell her that he loved her. He would say ‘I love you baby’. AA said, ‘whenever I go he comes near me … and he starts saying “wanna have sex”, or like “come to my house”, or like, “follow me”, “I love you” and stuff like that’. AA also gave evidence of the applicant’s conduct toward her, which included that the applicant ‘kept telling her to touch his dick and to have sex with him’. She said that when she got her first mobile phone at the age of 10, the applicant begged her to tell him what the number for the phone was. She gave him the number, and the very next day the applicant sent her a text which read:
I love you baby. I have to tell you something. I miss you.
AA’s evidence was that at some time in 2012, she got a new mobile phone. She did not tell the applicant its number, but he must have got the number because he sent her a text shortly thereafter ‘saying the same things all over again’.
In February 2013, AA’s father discovered a number of text messages on AA’s mobile phone. They had been sent to her by the applicant. As a result, AA’s father took AA and her phone to the local police station and screen shots were taken of the text messages. The text messages that were discovered were sent at various times between 11 and 16 February 2013. There were 10 in total. The majority said ‘I love you’ or ‘I love you baby’; one said ‘I miss you’; and one said ‘can I say something’s’. One of these texts was sent at 3:30 am, others were sent during the day, and two were sent after 10:00 pm.
AA gave evidence of phone calls made by the applicant to her phone. AA said that she did not answer these calls. In respect of this evidence, the informant gave evidence that records of AA’s phone were obtained, that showed that, in the period between the end of December 2012 and 6 February 2013, the applicant rang AA’s mobile phone on 75 occasions. On every one of those occasions, his call went unanswered. The applicant did not dispute this evidence (either at trial or in this Court).
The tendency evidence application
The Crown’s application to lead evidence of the applicant’s conduct and statements to AA, his phone calls to AA and the text messages he sent, as tendency evidence, was heard by the judge before the jury was empanelled. The Crown sought to lead this evidence for the purpose of showing that the applicant had the tendency referred to in the Crown’s tendency notice.
At trial (and in argument before the judge), the defence disputed that the applicant conducted himself and spoke to AA in the way that AA alleged. The defence denied that the applicant told AA, when they were together, that he loved her or wanted to have sex with her. However, the defence did not oppose the Crown’s application to lead this evidence in the manner that the Crown sought. As to the phone calls made between December 2012 and February 2013, and the text messages sent between 11 and 16 February 2013, no issue was taken by the defence that the calls were made and the texts sent. The defence, however, opposed the Crown’s application to lead that evidence ‘on the basis that it [was] insufficiently probative, somewhat removed in time from the earlier instances[1] of his alleged offending, and carrie[d] with it a risk of unfair prejudice to the accused’.[2]
[1]The references to instances of offending is a reference to the fact that, at trial, the applicant faced four charges of offending against AA.
[2]DPP v Aung Thu (Unreported, County Court of Victoria, Judge Gamble, 30 October 2015) [35] (‘Tendency Reasons’).
After analysing the evidence and the parties’ submissions in considerable detail, the judge concluded that he was satisfied that the evidence sought to be led as tendency evidence satisfied the test for admissibility under s 97 of the Evidence Act 2008 (the Act’). The judge concluded that this evidence had significant probative value. The judge also concluded that the requirement for admissibility in s 101 of the Act was satisfied, saying that the probative value of the evidence substantially outweighed any prejudicial effect that it may have on the accused.[3] Accordingly, the judge ruled in favour of the Crown’s application to lead the tendency evidence about which complaint is now made.[4]
[3]Tendency Reasons [90].
[4]Ibid [92].
The use of the tendency evidence at trial
In accordance with the judge’s pre-trial ruling on the Crown’s application to adduce tendency evidence, at trial the Crown adduced as tendency evidence both the evidence of dealings between AA and the applicant that was not resisted by the defence[5] and the evidence that the judge ruled to be admissible as tendency evidence. The use to which this evidence was put, and its relevance, was explained by the judge in his charge to the jury as follows:
[5]That is, while the adducing of this evidence from AA was not opposed by the defence, the defence denied that the applicant in fact said what AA asserted he said.
Part of the prosecution case is that the accused man, Aung Thu, has demonstrated a sexual interest in the complainant [AA] and a willingness to act on that interest.
Before I give you the required directions of law about this matter, let me summarise the evidence upon which the prosecution rely.
In her VARE interview on 20 August 2013, the complainant said that the accused man had sent her text messages when she got her first mobile phone at aged ten. The first text he sent was, ‘I love you baby. I have to tell you some things. I miss you’.
She also said that when she got her new mobile phone in 2012, her second mobile phone, he sent the same sort of texts all over again.
When she was taken to the police station in February 2013, she showed the police a number of such texts that were still on her mobile phone. Those texts are shown as screenshots in photograph 7-9 in Exhibit B.
In those texts, the accused man told her that he loved and missed her and referred to her on some occasions as ‘baby’. [AA] says that there were other such text messages, but she had previously deleted them because she did not want her mother to find them.
In her VARE interview, [AA] also told the police that when the accused would come to her house, he would say stuff to her, like the things that he had said in the texts that he had sent her.
He would also say things like, ‘Do you want to have sex?’ or, ‘Come to my house’, or, ‘Follow me, I love you’ and things like that. As she explained to the police woman interviewing her, it was those things that he had previously
said to her that meant that she knew that when he took her to his house on the day of her party, that he was going to, to use her words, ‘Sex me’.
In her pre-recorded evidence given at the special hearing on 4 November this year, [AA] confirmed that foreknowledge on her part. She said that she knew that he was going to rape her at his house because of the things that he had said outside, meaning on previous occasions elsewhere including at parties, at community events and when her dad was at work or her mum was at the shops. He would come close to her and ask her even at houses. He kept telling her to touch his dick and to have sex with him. He had also sent her messages to come with him but she had deleted them.
There is also evidence from Senior Constable O'Halloran and Detective Senior Constable Evans in relation to a number of calls being made from Mr Thu's mobile phone to [AA’s] mobile phone.
After checking mobile phone records, Detective Senior Constable Evans discovered that in the seven and a half month period between 30 August 2011 and 16 April 2012, there had been nine calls from the accused's mobile to [AA’s] mobile. Five of those calls connected and lasted for less than a minute while the other four went to her message bank.
After checking the phone records, he was able to say that the total number of calls made from the accused man's mobile to [AA’s] in the six week period between 30 December 2012 and 16 February 2013 was 75 and that all of those calls went through to the message bank of her phone.
Mr O'Halloran had given some evidence about part of that period. He checked the recent call register of [AA’s] mobile on 17 February 2013 and discovered that there had been 37 calls made in the five week period between 9 January and 17 February 2013. He could not establish from that register whether any of those calls had been answered or not.
The prosecution argues that the evidence just described in relation to what the accused man did, demonstrates that he had a sexual interest in the complainant which he carried into effect by behaving in the ways that I have just summarised; the verbal and text expressions of love, the attempts to get her to engage in sexual activity with him by way of asking her to touch his dick and have sex and the numerous attempts to call her at all hours.
The prosecution argue that this evidence demonstrates that he had an enduring sexual interest in the young complainant [AA] that commenced before the date of the alleged rape and continued unabated until the fortuitous discovery of the text messages on her mobile phone on 17 February 2013, at which time an intervention order was taken out to prevent any further contact between him and the complainant.
The defence case is that the accused man admits to having sent the text messages to [AA] that were photographed at the police station. In relation to that evidence, the defence admit that when you take account of relevant matters concerning Burmese language and culture and his various explanations of sending those text messages and the evidence of his wife in relation to them, they do not have the sinister sexual meaning that the
prosecution are trying to put on them. In fact there are the defence say, perfectly innocent explanations for them.
The rest of the prosecution allegations about how Mr Thu behaved towards [AA] are denied. For example, the allegations that he followed her around and whispered sexual things to her, things such as asking him her to, ‘touch his dick’ or have sex with him are denied. The defence categorically deny that those things were said. They submit that you could not find Mr Thu acted that way because you could not conclude that [AA] was an honest and reliable witness about those matters. So the issue in relation to those statements about touching his dick and having sex, is not so much about whether if said, those statements could demonstrate the relevant sexual interest, but rather whether you could be satisfied at all that they were even said. As for the other conduct not admitted, it never occurred and cannot prove anything they say.
Members of the jury, as I have previously explained, it is a matter for you what evidence you are prepared to accept, and what weight you are prepared to give to any particular evidence that you do accept. That is the case generally, as well as in respect of this evidence. In giving you the directions that I am about this evidence, I am not expressing a view one way or the other on whether you should accept the evidence, nor as to what weight it should be given, if accepted. That is your domain, not mine.
If you do find that Aung Thu had a sexual interest in the complainant and was willing to act on that interest, then you can use that to find that it is more likely that he committed the offences charged, that is, the rape alleged in Charge 1 and the indecent acts with a child under 16, alleged in Charges 2, 3 and 4.
The judge went on to explain to the jury that the evidence of what the applicant said to AA, the phone calls and the text messages were also admitted to provide relevant context to AA’s evidence of the rape. The judge said:
This is not the only manner in which the prosecution are asking you to use this evidence. The prosecution also says that this evidence sets the scene, in which the alleged offences in Charges 1 to 4 took place. They say that without the other evidence relating to the sexual statements, and professed love, the text and the phone calls, there is a risk that the complainant's evidence about the charged offences would be incomplete and may even be incomprehensible.
The prosecution submit that the other evidence provides an important context to the evidence relating to the charged offences, in a number of ways.
First, the fact that the accused man had been asking [AA] for sex in the period leading up to the date on which she says she was raped by him, may explain her alleged conduct or state of mind on the day of that alleged rape. It may explain why she was reluctant to leave her party with him. And once taken to his house, why she was so reluctant to go inside and then so upset when he took her into his bedroom and locked the door.
Second, the context evidence may explain the accused man's alleged conduct or state of mind at the time of the offending, such as why he felt able to act in a particularly brazen manner. The prosecution says that he must have been thinking that if [AA] had not complained about his sexual comments, or his other statements and texts earlier, then she was unlikely to complain if he carried through and committed the physical acts of sexual abuse themselves. In that way, he may be confident in offending against her, even when in close proximity to others, including members of her own family.
Third, the prosecution says that the context evidence may be relevant to a consideration of the circumstances of an alleged offence, in the sense that, it may show that the complainant does not say that the offence occurred out of the blue without any previous inappropriate conduct by the accused towards her. For example, the accused had been asking her for sex on occasions before the day on which he raped her. Similarly, she says he had been asking her to touch his dick on occasions before the day on which he made her do that at the market.[6]
[6]The judge’s reference to an incident at the market relates to one of the charges of which the applicant was acquitted.
The judge finished this topic in his charge by saying:
Members of the jury, you must keep this evidence in perspective. It is only one part of the prosecution's case. As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence which I have just summarised in this direction has been led for the limited purpose of helping you understand the circumstances surrounding the alleged offending in Charges 1 to 4, and to show that Aung Thu had a sexual interest in [AA], and a willingness to act on that interest, and thereby to seek to demonstrate that he is more likely to have committed the offences charged in the indictment. You must not use the evidence for any other purpose.
In argument in this Court, the applicant accepted the accuracy of the judge’s summary of the evidence in his charge to the jury. Further, the applicant accepted that the evidence, which it is said should not have been admitted for tendency purposes, was admissible as context or relationship evidence. Specifically, the applicant made no complaint about that part of the judge’s charge where he told the jury that the evidence was admitted to provide relevant context to AA’s evidence of the rape.[7]
[7]See generally, DPP v Martin (a pseudonym) [2016] VSCA 219 [81]–[107] (Redlich, Weinberg and McLeish JJA).
The applicant’s contentions
While the applicant accepts that the evidence sought to be impugned could have been admitted as context or relationship evidence, he submitted that there was a substantial miscarriage of justice in admitting the evidence as tendency evidence. It was contended that the evidence did not have the significant probative value required by s 97(1)(b) of the Act. Four reasons were advanced.
First, it was submitted that the evidence demonstrated only a sexual interest, and not a willingness to act upon that interest. Relying upon this Court’s decision in Velkoski v The Queen,[8] the applicant submitted that evidence that demonstrates only a sexual interest, but not a willingness to act upon that interest, discloses only ‘rank propensity’ which is not admissible as tendency evidence. Specifically, the applicant relied upon the following passage in Velkoski:
The offender’s state of mind is frequently relied upon in the Crown’s notice of tendency evidence to cover the offender’s interest in particular victims and his willingness to act upon that interest. That the offender has such a state of mind discloses only rank propensity which is not admissible as tendency evidence. It shows only that he is the kind of person who is disposed to and commits crimes of the type charged. Resort to that particular state of mind to support tendency reasoning is impermissible, highly prejudicial and unnecessary. Once the jury is satisfied that the acts relied upon as tendency have been committed, the offender’s state of mind adds nothing. Reference to it is calculated to divert the jury from focusing upon the extent to which the similar features of the previous acts render the occurrence of the offence charged more likely.[9]
[8](2014) 45 VR 680 (‘Velkoski’).
[9]Velkoski (2014) 45 VR 680, 720 [173(f)] (Redlich, Weinberg and Coghlan JJA).
Secondly, it was submitted that the evidence did not have significant probative value because the evidence was not admitted to demonstrate a tendency to act in a particular way, but only to demonstrate a tendency to be attracted to AA.
Thirdly, it was said that the evidence did not have significant probative value because it related to conduct that occurred approximately two and a half years after the day on which the rape was alleged to have occurred. In amplification of this submission, it was said that the fact that the applicant might have conducted himself in a way that could be taken as suggesting a sexual attraction to AA in early 2013 was of limited relevance to whether the applicant felt the same attraction in mid-2010. It was then said to be even less relevant to whether the applicant engaged in the disputed conduct in mid-2010.
Fourthly, it was submitted that the telephone calls did not possess significant probative value because, absent any content, they were not capable of demonstrating that the applicant possessed a sexual interest in AA. It was contended that the making of unanswered telephone calls does not have any overt or implicit sexual connotation.
While the applicant’s trial counsel[10] had conceded the admissibility of AA’s evidence of the words allegedly spoken by the applicant and texts sent by him at and around the time of the alleged rape, in argument before this Court, the applicant submitted that the High Court’s decision in IMM v The Queen,[11] decided after the conclusion of the applicant’s trial, rendered this evidence inadmissible.
[10]Not counsel who appeared in this Court.
[11](2016) 90 ALJR 529 (‘IMM’).
IMM was a case that involved the conviction of an accused of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. As in the present case, in IMM there was only one complainant. In IMM, tendency evidence was given by the complainant of another incident in which the accused ran his hand up the complainant’s leg. In analysing whether this tendency evidence had significant probative value for the purposes of s 97(1)(b), the plurality[12] said:
The complainant gave evidence of an occasion which occurred shortly before the appellant and the complainant's grandmother separated. There is no suggestion that there was anything untoward about the activity being undertaken at the time. The complainant and a granddaughter of the appellant were giving the appellant a back massage, as he had requested. The appellant was lying face down on a bed. The complainant was standing next to the bed. The complainant said that the appellant ‘ran his hand up my leg’.
She was wearing shorts at the time, so his hand did not contact her skin. She said that she moved away.It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value.
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.
For these reasons the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b).[13]
[12]French CJ, Kiefel, Bell and Keane JJ.
[13]IMM (2016) 90 ALJR 529, 540–541 [60]–[64].
Relying upon IMM, the applicant submitted that AA’s account of what was said to her by the applicant and texts that had been deleted (or of which there was no independent evidence) could not be admissible to support AA’s evidence of the rape. Moreover, if that evidence was not admissible, then the subsequent evidence of the texts and telephone conversations in late 2012/early 2013 was that much less probative than it might have been if it was considered together with the evidence of the applicant’s earlier statements and texts.
The respondent’s contentions
The respondent submitted that there was no error in the judge’s admission of the impugned evidence as tendency evidence. It contended that the evidence had significant probative value because it demonstrated an ongoing and unnatural sexual interest in AA by the applicant and a willingness to act on that interest by articulating that interest to her and sending her inappropriate text messages.
The respondent submitted that the applicant’s reliance upon Velkoski was misplaced. Velkoski was a case involving multiple complainants, and it was to be recalled that the tendency notice in Velkoski asserted the relevant state of mind to be:
that the accused had a sexual interest in young children attending the daycare centre run by his wife and that the accused was willing to act on that sexual interest by engaging in sexual acts with the complainants.
Here, it was submitted that the relevant tendency was that the applicant had a tendency to act in a particular way towards AA, namely to have a sexual interest in AA and a willingness to act on that sexual interest in respect of her.
Next, the respondent submitted that the impugned evidence was correctly admitted as tendency evidence in accordance with what this Court said in Gentry v DPP.[14] In Gentry, Redlich JA[15] said:
The common law has long recognised so-called ‘guilty passion’ evidence — now to be referred to as evidence demonstrating a ‘sexual interest’[16] — consisting of evidence that an accused has acted in a sexual way towards the complainant on one or more occasions as a type of tendency evidence.[17] Such evidence may be admitted to prove that the accused had an improper sexual interest in the complainant and a willingness to express that interest.[18] As was recognised in Velkoski, ‘where all the tendency and charged acts relate to the same victim’, the relationship between an offender and a victim may itself support tendency reasoning.[19]
In cases involving a single complainant, generalised evidence of an accused’s sexual interest in and sexual misbehaviour towards the complainant may have a highly probative value, and may legitimately contribute to an assessment of the probability of the charged acts having occurred. Such evidence is demonstrative of a specific tendency of the applicant to show a sexual interest in and commit sexual offending against a particular victim. The vice identified in Velkoski, in contrast, was the prosecution’s reliance upon an offender’s state of mind to cover the offender’s general sexual interest or predilection in relation to a class of persons.[20]
[14](2014) 244 A Crim R 106 (‘Gentry’).
[15]With whom Tate and Priest JJA agreed.
[16]HML v The Queen (2008) 235 CLR 334 (‘HML’); R v BJC (2005) 13 VR 407.
[17]See HML (2008) 235 CLR 334; R v McKenzie-McHarg (2008) 189 A Crim R 291.
[18]See HML (2008) 235 CLR 334; R v Sadler (2008) 189 A Crim R 310.
[19]Velkoski (2014) 45 VR 680, 718 [168].
[20]Gentry (2014) 244 A Crim R 106 [28]–[29] (citations in original).
Finally, the respondent submitted that the applicant’s reliance upon IMM was misplaced. It was contended that IMM was not authority for the proposition that the evidence of a complainant of one series of events could never be used to support his or her account of an accused’s misconduct on another occasion. The respondent placed emphasis on the fact that the court in IMM was dealing with a case which involved the consideration of whether the complainant’s evidence of conduct of an uncharged act on one occasion could rationally affect the probability that the complainant’s account of charged conduct on a number of other occasions was true. It was submitted that this was different from a case like the present where AA’s evidence of many occasions of conduct by the applicant was said to support the truthfulness of her account of the one occasion on which she said she was raped by the applicant. In making these submissions, the respondent placed particular reliance upon the phrases in the judgment of the plurality in IMM, ‘without more’, ‘an occasion’ and ‘generally have limited’.[21]
[21]IMM (2016) 90 ALJR 529, 541 [62]–[63].
The resolution of the application for leave to appeal against conviction
From time to time in his reasons for admitting the impugned evidence as tendency evidence, the judge referred to the evidence being admitted in order to demonstrate that the applicant had a sexual interest in AA which made it more probable that the applicant committed the rape.[22] While complaint was made about this by the applicant in argument, in our view, there is nothing in the point. When one reads the judge’s reasons in their entirety, it is plain that the judge was aware that the evidence sought to be led as tendency evidence was sought to prove not merely the tendency of the applicant to have a sexual interest in AA, but also the willingness of the applicant to act on that interest. The evidence was led, as the judge told the jury in his charge, to establish the tendency of the applicant to have a sexual interest in AA and a willingness to act on that interest. The references in the tendency ruling reasons to sexual interest were merely a shorthand way for the judge to refer to the actual tendency that was the subject of dispute between the parties.
[22]See, for example, Tendency Reasons [4].
Next, the applicant’s complaint that the impugned evidence demonstrated only a sexual interest, and not a willingness to act on that interest, must be rejected. The very fact of sending text messages of the kind sent by the applicant to AA disclosed the applicant’s inappropriate interest in AA and willingness to act upon that interest. The statement in Velkoski relied upon by the applicant must be read in the context of the facts of that case and the tendency sought to be established in that case. Unlike the reasoning that was deprecated by the Court in Velkoski,[23] the tendency sought to be established at trial in the present case was one as to a specific inappropriate sexual interest in one complainant and on which the applicant had been shown to be willing to act. As was said in Gentry, the vice identified in Velkoski was the prosecution’s reliance upon an offender’s state of mind to cover the offender’s general sexual interest or predilection in relation to a class of persons.[24] That is not this case.
[23]Velkoski (2014) 45 VR 680, 720 [173(f)].
[24]Gentry (2014) 244 A Crim R 106 [29].
As to the applicant’s submission that the evidence did not have significant probative value because it related to conduct that occurred approximately two and a half years after the day on which the rape was alleged to have occurred, this submission overlooks AA’s evidence of the ongoing nature of the inappropriate statements made by the applicant to her in the intervening period and AA’s evidence as to the continued sending of inappropriate text messages during this period. The evidence of that intervening conduct underscores the significance of the texts that were sent in February 2013 and subsequently photographed and produced in evidence at trial.
While, in another case, there might be force in a proposition that a sexual interest by an accused in a person expressed out of the blue and years later may have little probative value on the issue whether there was a relevant interest at the time of an alleged offence, that is not this case. Having regard to the whole of the evidence, and in particular AA’s evidence of contact and texts between 2010 and 2013, the evidence of the text messages in February 2013 had significant probative value.
As to the applicant’s submission that there was no probative value in the proof that unanswered telephone calls were made by the applicant to AA, the short answer is that in the context of the whole of the evidence admitted at trial, that evidence was capable of being regarded as having significant probative value on the basis of the inappropriateness of a person of the applicant’s age persistently attempting to telephone a 10 year old girl to whom he was not related or in any otherwise legitimate relationship.
So far as IMM is concerned, we accept the Crown’s submissions that what was said by the plurality in the passage relied upon by the applicant[25] does not mean that AA’s evidence of multiple contacts and texts (some of which texts were proved independently of AA) were incapable of being used in the way they were used at trial. It is one thing to say that a complainant’s evidence of one additional episode of misconduct might not generally be capable of rationally affecting the probability of that complainant’s evidence about a series of other acts being true, it is another to say that evidence from a complainant of multiple dealings and contacts could not be significantly probative on the question whether evidence from the same complainant about a particular charged act should be accepted. In any event, the passage relied upon by the applicant in IMM is distinguishable from the present case because, unlike the facts in IMM, in the present case there was evidence external to the complainant, AA, that demonstrated the applicant’s inappropriate sexual interest and willingness to act on that specific sexual interest (the captured text messages).
[25]IMM (2016) 90 ALJR 529, 541 [62]–[64].
Finally, we accept the respondent’s contentions concerning the principles set out in Gentry, to which we have already referred. The plurality in IMM did not suggest that s 97 departed from the long recognition of the common law of such evidence, as described in Gentry.[26] The evidence about which the applicant makes complaint was highly probative for the reasons given by Redlich JA in Gentry.[27] It was evidence of what was once called ‘guilty passion’. It showed a specific tendency of the applicant to show a sexual interest in AA, upon which the applicant was prepared to act by dealing inappropriately with AA in whispered propositions and persistent phoning and texting.
[26]See [31] above.
[27]Gentry (2014) 244 A Crim R 106 [28]–[29].
For these reasons, while we would grant leave to the applicant to appeal against his conviction, the appeal must be dismissed.
Sentence: circumstances of the offending
We have already described some of the circumstances of the applicant’s rape of AA. In sentencing the applicant, the judge summarised the circumstances of the applicant’s offending more fully:
[AA] was born on 26 August 2000. Two days after turning 10, her parents held a birthday party for her at their home. Many people from within the local Burmese community were invited and attended, including you and your wife and children. For some time, you had been a very regular attendee at the home of [AA’s] family. The two families were very close. You were trusted without question by [AA’s] parents, and more broadly within the local Burmese community in which you mixed.
According to the complainant, [AA], while at her party you told her that you wanted to take her to a local shop in order to get balloons and poppers for the party. She did not want to go with you but you were insistent. Ultimately you raised the matter with her mother and managed to get approval from [AA’s] parents to take their daughter for that purpose. Instead of driving her to the shop, you drove her straight to your home. You falsely told AA that your reason for having to do so was in order to pick something up. [AA] was uneasy about the situation and showed some reluctance to go inside with you. She had her suspicions about your sexual motivations based on the way in which you had behaved towards her on previous occasions. You took her to your bedroom despite her initial objections. Once you were both inside the room, you locked the door. After undressing her, you proceeded to have penile vaginal intercourse with her. She was upset throughout the incident and crying. On her account, the incident was not fleeting and lasted for some time. Afterwards, you took her to get the party supplies and then drove her back to the party. Before doing so, however, you effectively silenced her from speaking out about what had just occurred by placing her in fear that if she did tell anyone, she would bring shame and embarrassment on herself and her family.[28]
[28]R v Aung Thu (Unreported, County Court of Victoria, Judge Gamble, 11 March 2016) [8]–[9] (‘Sentencing Reasons’).
To that description, reference could also be made to AA’s evidence that the applicant did not use a condom and that the applicant ignored her protests when he locked the door, those matters generally being regarded as aggravating features.[29]
[29]Cf Jurj v The Queen [2016] VSCA 57 [80] (Maxwell P, Redlich and Beach JJA) (‘Jurj’).
The three charges of committing an indecent act with, or in the presence of, a child, involved the complainants BB, CC and DD. The judge summarised the circumstances of this offending as follows:
The families of all three of those complainants were part of the local Burmese Buddhist community living in Melbourne. So too were you and your family. Indeed, you were a very trusted member of that community. Each of the complainants were students at a Burmese Language School which was conducted in a local Buddhist Monastery. From time to time, you provided transport to some students and also assisted the teacher who conducted the classes.
The complainants [BB] and [CC] were friends. On the day in question, they were playing together in the front yard of the home of another friend. You were also present at that property and took the opportunity to sexually assault each complainant in the immediate presence and sight of the other. The act which forms the factual basis for charge 1 involved you grabbing the breasts of [BB] over her clothing. The act upon which you will be sentenced for charge 2 involved you touching the bottom of [CC] over her clothing.
It must be noted that charge 2, unlike any of the other charges, is a representative charge. It encompasses not just the incident witnessed by [BB], but also a second and later incident which occurred sometime during the period 27 August 2011 and 31 December 2012. On that occasion, the complainant and a number of other students were undertaking a class at the Burmese language school. You approached [CC] in the class while she was standing up and sharpening her pencil over a rubbish bin. As on the earlier occasion, you touched her on the bottom over her clothing.
…
Charge 3 involves the offence committed against the remaining complainant, [DD]. It occurred at the Burmese Language School on a date between 1 April and 30 September 2012. At that time, the complainant was 9 years of age and you were 38. On this occasion, you grabbed [DD’s] hand and slid it towards your groin in an effort to make her touch your penis over your clothing. As you did so, you laughed and told her that she was ‘so sweet’. The incident was brought to an abrupt end by the complainant pulling her hand away from you. This offence had some similarity to those committed on [BB] and [CC] because you were prepared to act as you did in the presence and sight of another girl, in this instance, a girl named [EE].[30]
[30]Sentencing Reasons [11]–[15].
The judge’s reasons for sentence
The judge commenced his reasons for sentence with a description of the applicant’s offending.[31] The judge then described the significant impact of the applicant’s offending upon his victims and their families.[32]
[31]Ibid [6]–[15].
[32]Ibid [16]–[21].
Next, the judge briefly described the applicant’s personal circumstances, noting that the applicant was 42 years of age at the time of sentencing, married with two young children, and had no prior convictions. As the judge noted, the applicant fell to be sentenced as a person of otherwise good character.[33]
[33]Ibid [22]–[27].
The judge then said:
As is clear from the applicable maximum penalties Parliament has chosen to fix, the type of offences that you committed must be viewed as intrinsically serious, especially that of rape.
There are a number of serious aspects of your offending which must be noted.
In abusing each of the victims as you did, you breached the trust that their parents no doubt placed in you. Through your involvement with the Burmese Language School, you were known to each of the victims and their parents. They trusted you and, in the case of [AA’s] parents, considered you to be part of their family. What you did to each of the victims represented a gross breach of that trust.
The offences to which you have pleaded guilty were audacious and suggest that you felt confident in being able to sexually abuse those girls with impunity. You appear to have been untroubled by the fact that another girl was present and able to witness what you were doing. It is hardly surprising that the victims in respect of charges 1-3 on the plea indictment would have been initially shocked and surprised by what you did.
In the case of [AA], your rape of her was neither long-planned or spur of the moment offending. You appear to have taken advantage of the opportunity presented by her birthday party in the context of being such a close and trusted personal friend of her parents. That is not to say that you had not harboured sexual desires for [AA] previously because clearly you had. The evidence given by [AA] as to how you had previously behaved towards her, and in particular, what you told her and asked her, amply demonstrates the unnatural sexual interest that you had in her from a time preceding the date of the rape.
Your egregious breach of the trust that [AA] and her parents placed in you is not the only aggravating feature of this offence. Having only just turned 10 years of age, [AA] was a very young victim. She was both emotionally and physically powerless to dissuade or prevent you from raping her. For cultural reasons, as you well knew, [AA] was required to show respect to her elders, of which you were one. She had been chastised by her mother on some earlier occasions for the way that she had behaved towards you. Clearly, she was a very vulnerable victim, a fact that you would have been cognisant of at the relevant time. Indeed, you took cruel advantage of those vulnerabilities. The implied threat that you used to silence her is yet another factor that elevates the seriousness of your offending.
In each case, although to varying degrees, your offending has had a serious and lasting adverse impact on the lives of your victims and their families. So much is clear from the relevant evidence, including the victim impact statements.
When viewed globally, your offending is to be properly regarded as being very serious, involving as it did, the sexual abuse of four young and vulnerable victims for your own perverse sexual gratification. Accordingly, your level of moral culpability for that offending is high.[34]
[34]Ibid [28]–[35].
The judge then noted that there were two significant matters of mitigation: first, the applicant’s previous good character; and secondly, the fact that the applicant elected to plead guilty in respect of the offending involving BB, CC and DD.[35] The judge said that he considered that those pleas of guilty had been entered in circumstances that entitled the applicant to a ‘relatively significant reduction’ in the sentence that the applicant was to receive for those offences.[36] The judge accepted that the applicant’s pleas of guilty in respect of BB, CC and DD was accompanied by ‘some remorse’ on the applicant’s part. The judge also had regard to the fact that the applicant’s time in custody on remand had likely been difficult, as would be the experience of having to serve the sentence to be imposed (the applicant having ‘limited English skills’).[37]
[35]Ibid [36]–[38].
[36]Ibid [38].
[37]Ibid [40].
Next, the judge noted that general deterrence, denunciation and just punishment all assumed prominence in the sentencing of the applicant and were required to be given ‘considerable weight’.[38]
[38]Ibid [41].
As to the applicant’s prospects of rehabilitation, the judge said:
I am also required to have regard to your age and prospects of rehabilitation. You fall to be sentenced as a man of relatively mature years and as a first time offender. But, your offending involved four young victims and remains unexplained. You have received no counselling or professional treatment in respect of it and, to some extent, you remain in denial. You continue to enjoy the support of your family and a number of other people within the community. Assessing your prospects of rehabilitation is no easy matter and any assessment must, in the circumstances of this case, be somewhat guarded and circumspect. But, doing the best I can, I consider those prospects to be at best fair to moderate.[39]
[39]Ibid [47].
Finally, the judge noted that he was required to sentence the applicant as a serious sexual offender in respect of charges 2 and 3 on the plea indictment. This required the judge to regard protection of the community as the paramount consideration. While, as the judge noted, there was a power to impose a disproportionate sentence and a presumption as to cumulation in respect of these charges, the judge noted that the prosecution did not seek the imposition of a disproportionate sentence or that the judge have recourse to a significant degree of cumulation.[40]
[40]Ibid [48]–[50].
The applicant’s contentions
The applicant submitted that the sentence on the charge of rape (imprisonment for a period of eight years and four months) was significantly out of step with current sentencing practices for the offence. In making that submission, the applicant referred to the circumstances of the rapes and sentences imposed in the cases of R v Vella,[41] Violatzi v The Queen,[42] NJ v The Queen,[43] Allen v The Queen,[44] Singh v The Queen,[45] and Evans (a pseudonym) v The Queen.[46] Those cases variously involved rapes committed against victims of varying ages in the range 11–18 years,[47] that produced sentences of imprisonment of between 4 and a half years and 7 and a half years.
[41][2008] VSCA 28 (‘Vella’).
[42][2011] VSCA 424.
[43](2012) 36 VR 522.
[44][2013] VSCA 263.
[45][2014] VSCA 250.
[46][2016] VSCA 11.
[47]With the exception of the victim in Vella, whose age is not disclosed in the judgment but who was raped by her ex-partner.
In respect of the sentences imposed upon the applicant for his offending against BB, CC and DD, it was submitted that those sentences, too, fall outside the available range. Each of the indecent acts, it was submitted, involved momentary touching outside the relevant complainant’s clothes. Moreover, each offence was committed by a man who had no prior convictions.
While the applicant submitted that the non-parole period was not, of itself, manifestly excessive, he submitted that if this Court reached the stage of re-sentencing, a ‘significantly lesser period ought be set’.
The respondent’s contentions
The respondent submitted that the sentences imposed by the judge, the orders for cumulation, the total effective sentence and the non-parole period were all within range. As to the rape sentence, the respondent noted the following aggravating features:
(a) the rape lasted for some time and included a threat that if AA told anyone she would bring shame on herself and her family;
(b) the rape involved an egregious breach of trust of a very young, vulnerable victim;
(c) the rape occurred on the victim’s tenth birthday, during family celebrations;
(d) the rape had a significant and foreseeable impact on AA; and
(e) the rape was committed after the applicant locked the door of the bedroom in which it was committed.
The respondent contended that the sentence imposed in respect of the rape of AA did not satisfy the well-known test for manifest excess, namely that the sentence must be wholly outside the range of sentencing options available to the judge. In making this submission, the respondent relied upon sentences in cases additional to those referred to by the applicant, including R v BF,[48] a case where this Court resentenced an accused, who had pleaded guilty to one count of raping his 14 year old niece, to a term of imprisonment of eight years.
[48](2007) 177 A Crim R 331.
As to the sentences for the offending involving BB, CC and DD, the respondent submitted that those sentences reflected the breach of trust and brazen nature of the applicant’s offending, committed in sight of other young girls, against vulnerable young victims. None of those sentences, it was submitted, was wholly outside the range of sentences available to the judge.
The resolution of the application for leave to appeal against sentence
The sentence of eight years and four months’ imprisonment imposed by the judge in respect of the rape of AA, who was only just 10 years of age at the time, was entirely appropriate. This was an appalling crime that involved the aggravating features referred to by the respondent, and the additional ones to which we have already referred. Moreover, AA was plainly distressed throughout her ordeal and this would have been obvious to the applicant. Additionally, AA gave evidence of the physical pain she experienced in her vagina as a result of the applicant’s offending.
None of the authorities referred to by the applicant go any way to demonstrating that the sentence imposed is, or might be, outside the range or out of step with current sentencing practices for the offence of rape.[49] To the authorities referred to us by the parties, one could add the cases of Sharifi v The Queen[50] and DPP v Werry.[51]In Sharifi, the rape sentence ultimately imposed was eight years and in Werry it was seven years. The complainants in each of these cases were girls aged 18 and 17 respectively.[52]
[49]Cf R v Kilic (2016) 339 ALR 229, 235–236 [21]–[24] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[50][2013] VSCA 126 (‘Sharifi’).
[51](2012) 37 VR 524 (‘Werry’).
[52]See further, Jurj [2016] VSCA 57 [93]–[97]. See also the sentence imposed in Jurj (after the applicant was sentenced by the judge), where on a number of counts of raping a 14 year old girl the offender was resentenced to terms of 9 years’ imprisonment.
Similarly, we are not persuaded that the sentences imposed in respect of the offending against BB, CC and DD were wholly outside the permissible range. It may be accepted that these sentences were stern having regard to the fact that the indecent touching was done over the victims’ clothing. The offending, however, was still in any event serious, and correctly described by the judge as involving a level of moral culpability that was high.[53]
[53]Sentencing Reasons [35].
So far as the orders for cumulation were concerned, in our view the judge’s orders were moderate. This is particularly so in respect of the offending involving CC and DD, for which the applicant was sentenced as a serious sexual offender and there was thus a presumption in favour of cumulation.[54]
[54]Sentencing Act 1991, s 6E.
Finally, having concluded that none of the individual sentences or orders for cumulation are manifestly excessive, we should say that when the applicant’s offending is viewed globally, it cannot be suggested that either the total effective sentence or the non-parole period was outside the range of permissible sentences open to be imposed by the judge. The application for leave to appeal against sentence must be refused.
Orders
We will make orders granting the applicant leave to appeal against his conviction, dismissing the appeal and refusing the applicant leave to appeal against sentence.
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