Bernard (a pseudonym) v The King
[2024] VSCA 293
•28 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0152 |
| LENNON BERNARD (a pseudonym)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the risk of identifying a victim of a sexual offence, these reasons for judgment have been anonymised by the use of a pseudonym in place of the applicant’s name.
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| JUDGES: | PRIEST, TAYLOR and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 October 2024 |
| DATE OF JUDGMENT: | 28 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 293 |
| JUDGMENT APPEALED FROM: | DPP v Bernard (a pseudonym) [2022] VCC 2345 (Judge Syme) |
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CRIMINAL LAW – Appeal – Conviction – Indecent assault of adopted daughter – Alleged offending between 1973 and 1975 – Judge alone trial – Whether trial unacceptably unfair due to delay – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Indecent assault of adopted daughter – Alleged offending between 1973 and 1975 – Judge alone trial – Whether substantial miscarriage of justice due to failure of defence counsel to adduce evidence concerning accuracy of memory and other matters – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Indecent assault of adopted daughter – Alleged offending between 1973 and 1975 – Judge alone trial – Whether error in failing to uphold defence hypotheses consistent with innocence – Whether other error in judge’s reasoning – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Indecent assault of adopted daughter – Total effective sentence 4 years and 6 months’ imprisonment with 2 years and 9 months non-parole – Alleged offending between 1973 and 1975 – Whether judge erred in finding absence of remorse – Whether judge erred in failing to take into account applicant’s age – Whether judge erred in failing to take into account sentencing practices at time of offending – Appeal allowed – Appellant resentenced to total effective sentence of 3 years’ imprisonment with 21 months non-parole.
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| Counsel | |||
| Applicant: | Ms CA Boston SC with Ms B Kelly | ||
| Respondent: | Ms D Piekusis KC with Ms E Allan | ||
Solicitors | |||
| Applicant: | Galbally & O’Bryan Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
TAYLOR JA
ORR JA:
Introduction
On 15 November 2022, following a ‘judge alone’ trial in the County Court,[2] the trial judge found the applicant guilty of four charges of indecently assaulting his adopted child, ‘NC’,[3] a girl under the age of 16 years, between 1 January and 31 December 1973 (charges 1 and 2), and 1 January and 31 December 1975 (charges 3 and 4).[4]
[2]Chapter 9 of the Criminal Procedure Act 2009, inserted by the COVID-19 Omnibus (Emergency Measures) Act 2020, which permitted trial by judge alone, has since been repealed.
[3]The applicant formally adopted NC in 1970.
[4]DPP v Bernard (a pseudonym) [2022] VCC 2345 (Judge Syme) (‘Reasons for conviction’).
During the period embraced by the charges, the applicant, now aged 78 years,[5] was aged between 26 and 29 years, and NC was between 10 and 13 years of age.[6]
[5]His date of birth is 7 November 1946.
[6]NC was born in February 1962.
Following a plea, on 23 February 2023 the trial judge sentenced the applicant to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of two years and nine months.[7]
[7]DPP v Bernard (a pseudonym) [2023] VCC 254 (Judge Syme) (‘Reasons for sentence’).
The applicant now seeks an extension of time to file notices of application for leave to appeal against both conviction and sentence. Should the extensions of time be granted, the applicant seeks leave to appeal against both conviction and sentence.
With respect to conviction, the applicant relies on eight grounds:
1 The applicant’s trial was rendered unacceptably unfair on account of the consequences of the 47-to-49-year delay between the alleged offending and the trial, thus occasioning a substantial miscarriage of justice.
2 A substantial miscarriage of justice has been occasioned by the failure of the applicant’s counsel to:
(a) adduce expert evidence in respect of matters potentially affecting the accuracy of the complainant’s memories;
(b) seek to obtain and adduce evidence in relation to the complainant’s sessions with psychologists and counsellors from the mid-1980s onwards;
(c) adduce evidence that the applicant had no criminal record.
3 The learned trial judge erred in rejecting the defence hypothesis that the complainant’s evidence that the applicant had:
(i) digitally penetrated her vagina; and
(ii) caused her to masturbate his penis
may have been the product of reconstructed memories.
Particulars:
The learned trial judge rejected the defence hypothesis in this regard on the basis that there was no evidence of any intervening act between the incident the subject of Charges 1 and 2 and the complainant’s discussion with her mother shortly thereafter. That basis is flawed, in circumstances where:
(a) at most, the conversation between the complainant and her mother involved a complaint that the applicant had touched the complainant ‘down below’; and
(b) the applicant did not deny — in fact he admitted — that he had touched the complainant’s vagina, with the sole facts in issue in the trial being whether digital penetration and directed penile masturbation had occurred.
4 In assessing the reliability of the complainant’s evidence in respect of the alleged physical acts, the learned trial judge erred in failing to take into account, adequately or at all, the fact that the complainant had developed new ‘memories’ of things purportedly said by the applicant during the alleged offending, such new memories having developed up to 50 years after the alleged offending.
5 The learned trial judge erred in reasoning that the complainant’s evidence that she had taken extraordinary steps to escape the applicant supported her credibility.
6 The learned trial judge erred in reasoning that whether the complainant was able to successfully climb out the window was irrelevant to an assessment of her credibility as to the physical extent of the abuse.
7 The convictions on Charges 3 and 4 are infected by latent ambiguity.
8 A substantial miscarriage of justice has been occasioned by an accumulation of errors.
As to sentence, the applicant’s grounds are:
1 In finding that the applicant had no remorse, the learned sentencing judge erred in failing to take into account:
(i) the applicant’s shame, insight and desire to atone evident in the pretext calls; and
(ii) the impact of the significant delay upon the applicant’s memory.
2 In considering the risk posed by the applicant, the sentencing judge erred in failing to take into account:
(i) The applicant’s advanced age;
(ii) The extended period of time since he had offended; and
(iii) The fact that he [no] longer lived with or cared for young children.
3 There is error in the sentences imposed, in that they fail to give any weight to sentencing practices at the time of the offending.
4 The individual sentences, orders for cumulation, resulting total effective sentence and non-parole period are manifestly excessive.[8]
[8]The applicant was granted leave to add ground 4 during the hearing in this Court.
So far as the applications to extend time were concerned, the respondent accepted that although the delay in filing the relevant notices was significant — they were five months out of time — ‘it does not appear that the delay is attributable to the applicant, and the reasons for delay are adequately explained in the affidavit in support’.
We would grant the extensions of time sought, since — despite the submission of the respondent to the contrary — we consider the proposed grounds of appeal against conviction and sentence to be reasonably arguable. Indeed, as will become apparent, we are of the view that the putative appeal against sentence should succeed and the applicant be resentenced.
The offending and following events
Before turning to the grounds of appeal, it is necessary to summarise the circumstances of the applicant’s offending and the events that followed.
The applicant married NC’s mother, ‘PC’, in 1969, and adopted NC in 1970. By the time that the offending occurred, they had produced two more children: a boy, ‘RM’, born in 1970 and a girl, ‘CM’, born in 1972.[9] They separated in the mid-1990s.
[9]Subsequently, they had two more children: MM, born in 1978; and CAM, born in 1982.
Charges 1 and 3 on the indictment were particularised as ‘digital penetration of the complainant’s vagina’; and charges 2 and 4 were particularised as ‘placing the complainant’s hand on the accused’s exposed penis and instructing her to masturbate him’. Unlike many other similar cases, the principal issue in the trial was not whether the applicant had sexually offended against the complainant, but rather whether he had performed the particular acts alleged; that is, whether he had digitally penetrated NC’s vagina or compelled her to masturbate him.
Importantly, although charges 1 and 3 alleged digital penetration of NC’s vagina, sexual penetration was not an element of the offence created by s 55(1) of the Crimes Act 1958, under which each charge was laid. Thus, at the time of the alleged offending, s 55(1) provided:
55(1)Whosoever unlawfully and indecently assaults any woman or girl, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than five years.[10]
[10]The distinction between felony and misdemeanour was abolished in September 1981. See Crimes Act 1958, s 322B.
The prosecution case was that, between 1973 and 1975, the applicant sexually offended against NC, his adopted daughter, by digitally penetrating her vagina, and making her masturbate his penis. It was alleged that the offending occurred in NC’s bedrooms at the family homes in Coburg (charges 1 and 2) and Eltham (charges 3 and 4). In addition to the charged acts, the prosecution introduced uncharged acts of ongoing touching and digital penetration as tendency evidence.
NC gave evidence that, from a time she could not specify, the applicant had sexually assaulted her, but she did not know the applicant’s behaviour to be wrong.
In 1973 the applicant, NC and the family were living in Coburg. NC, aged about 11 years and in Grade 6 at school, shared a bedroom with her brother and sister. She was in bed, wearing a nightie but no underwear, when the applicant rubbed her clitoris and put one or two fingers into her vagina, about half a finger length, more than ten times (charge 1). The applicant then placed NC’s hand on the bare skin of his penis and gently rubbed it backwards and forwards (charge 2). He also rubbed his hands over other parts of NC’s body. The applicant mumbled something like, ‘that’s good’ and ‘like this’. NC kept her eyes closed throughout and pretended to be asleep.
When the applicant left the room he had a conversation with his wife in the hallway, which NC overheard. PC asked, ‘what were you doing?’. The applicant responded that he was tucking the children in. Since lying was considered a ‘very big no no’, NC told her mother the next day that the applicant had lied, and that he had not been tucking the children in. Thereafter, at some point the applicant and NC had a conversation near the garage during which he told her that he was sorry and that it would not happen again.
The family moved to Eltham in 1975. NC, aged 13, had her own bedroom. One night she was woken by the applicant touching her breast and rubbing her vagina. She rolled over, putting her back to the applicant. The applicant gently pulled her shoulder and rolled her onto her back. He rubbed her ‘clitoris down to [her] vagina and up and back, up and back’; his finger went ‘maybe half a finger’ into her vagina (charge 3). NC put her legs together in order to stop him. The applicant also placed her hand on his penis and caused her to rub it (charge 4).
NC’s evidence was that the kind of offending described above was frequent within the timeframe embraced by the charges. She said that when she heard someone coming towards her bedroom, she would often hide in case it was the applicant. In Coburg she would hide under the bed, and in Eltham she would remove the flyscreen and climb out the window. Her evidence was that she told various childhood friends over the years that the applicant had sexually interfered with her, but did not give details. She did not directly complain to her mother about the sexual abuse because she feared she would be sent away.
PC gave evidence that, when NC was aged about 13, she woke to find the applicant was not in bed. When PC investigated, she saw the applicant standing beside NC’s bed. PC asked the applicant what he was doing, and he replied, ‘nothing’. Later, PC again asked him what he was doing. Very significantly, he said that he was feeling NC to see what she felt like. Also significantly, PC spoke to NC the following day. NC complained that the applicant had been touching her ‘down below’. Following NC’s complaint, the applicant and PC remained married — they separated in the mid-1990s — but attended counselling arranged by their Church concerned with the applicant’s admissions to having touched his adopted daughter.
From the mid-1980s, NC spoke to various (unnamed) counsellors and psychologists about the applicant’s offending. At various times over the years, NC’s mother raised with her the possibility of reporting the matter to police, but NC did not want to.[11] She chose not to do so because it was ‘difficult to face the past’ and she did not really think the police would do anything with it. Just prior to getting married in 1986, however, NC told her mother that she did not want the applicant to give her away, because of what he had done to her.
[11]The evidence suggests that, in the mid-1980s, NC’s mother contacted police, but was told that, because NC was an adult, she needed to make the complaint.
In 2020, PC became aware that the applicant intended to seek office within the Anglican Church. She contacted NC, who did not think that the applicant should be in such a role. NC understood that the applicant could not hold the position if he had a criminal record. PC contacted the Church, and the Church arranged counselling for NC. The Church counsellor — who NC testified, was ‘the first person who [she] knew actually believed [her]’ — reported the matter to police.
On 5 January 2021, with the assistance of police, NC made ‘pretext’ calls to the applicant. He admitted touching her inappropriately, saying that he had an infatuation with her.
A few days later, on 8 January 2021, police interviewed the applicant. The applicant admitted touching NC all over her body, including her breasts and groin area, and admitted lifting her nightie on occasions to do so, sometimes having an erection. He denied, however digitally penetrating NC’s vagina, and denied that she had touched his penis.
As we have indicated, at trial the applicant did not dispute that he was sexually attracted to NC, or that he had touched her groin area and breasts on multiple occasions. It was disputed, however, that the applicant had digitally penetrated NC’s vagina (as alleged in charges 1 and 3) and that she had masturbated his penis (as alleged in charges 2 and 4). Whether the prosecution had established to the criminal standard that the activities particularised in the charges had occurred was the sole issue in the trial.
Conviction ground 1: Delay
Prior to the trial, the applicant had made an application to a judge of the County Court — not the trial judge — for a permanent stay. That application was refused,[12] so that the applicant faced trial by judge alone.
[12]DPP v [Bernard] (Unreported, County Court of Victoria, Judge Doyle, 27 September 2022).
There were four principal reasons that underpinned the judge’s refusal of a permanent stay: first, a jury’s incapacity to understand the risk of unreliability of NC’s evidence due to the delay could acceptably be ameliorated by directions; secondly, the defence had the ‘option of calling expert evidence regarding potential unreliability and inaccuracy of memory because of delay’; thirdly, the prosecution case was ‘strong’; and, fourthly, any prejudice to the applicant could be ameliorated by judicial direction and the potential exclusion of evidence by the trial judge.
Ground 1 contends that the applicant’s trial was rendered unacceptably unfair, and a substantial miscarriage of justice resulted, on account of the consequences of the 47 to 49 year delay between the alleged offending and the trial. Thus, although counsel for the applicant was critical of a number of the judge’s findings when refusing the stay, counsel recognised that, to make good this ground, it was necessary to establish that the applicant’s trial was rendered unacceptably unfair by the delay, thereby occasioning a substantial miscarriage of justice. Counsel submitted that 12 factors had led to a substantial miscarriage of justice.
First, the alleged offences occurred 47 to 49 years prior to the trial, so that the applicant’s ability to recall relevant matters which may assist in his defence was necessarily compromised.
Secondly, NC and PC were aged 60 and 76 respectively by the time of the trial, and were trying to recall events from up to 49 years prior, when NC had been aged 11 to 13 years.
Thirdly, NC and her mother had many conversations about the matter over the course of 49 years, giving rise to at least a risk of contamination. Due to the extreme passage of time, however, there were real difficulties in establishing the details of those conversations.
Fourthly, the police used notes from the Church counsellor’s conversations with NC’s mother in taking NC’s first statement, giving rise to a further risk of contamination.
Fifthly, NC spoke to many other people about the alleged incidents from the 1970s onwards, until the matter was reported to police in 2020, including her friends and partners; unknown psychologists and counsellors from the mid-1980s onwards; and to a church counsellor in 2020. None of these individuals were called to give evidence, so it is not known what was discussed.
Sixthly, NC had ‘flash backs and memories’ of the alleged incidents that ‘jumped out’ at her every day.
Seventhly, it was positively demonstrated that NC developed new memories concerning the circumstances surrounding the alleged offences. Hence, three weeks before the trial — 49 years after the first alleged offence — NC made a statement in which she recounted a new memory in relation to the incident the subject of charges 1 and 2. This memory came to her when she was watching television, when she ‘heard’ the applicant’s voice saying ‘do you like that, is that nice?’, accompanied by a ‘visual’ of the applicant’s hands rubbing her pubic area.
Eighthly, in the context of a very lengthy delay, these matters and intervening events give rise to a real risk of NC’s memories having been reconstructed.
Ninthly, the concerns regarding the reliability of NC’s memory are particularly grave in circumstances where the issue in the trial was not whether sexual abuse had taken place at all — the applicant admitted it had — but where only the details thereof were in issue.
Tenthly, whilst corroboration is no longer required as a matter of law, its absence is significant given the fallibility of the human memory in the context of such a lengthy delay, particularly where it can be positively demonstrated that NC had in fact developed new memories which were intimately associated with the charged offences.
Eleventhly, despite the lengthy delay and the clear evidence of new memories, and the fact that one basis for the refusal of the stay application was that evidence could be adduced from a memory expert, neither the prosecution nor the defence sought to adduce expert evidence on the topic.
Finally, by the time of the trial, significant evidence had been lost. For example, the Coburg home had been demolished, and the Eltham home had been significantly altered. Floor plans from the relevant period could not be located in respect of either home, and it was not possible to identify any evidence going to the composition of the rear windows at the Eltham property. Further, records of the counselling sessions of the applicant and the complainant’s mother in the 1970s were no longer available.
We are not persuaded that any of the 12 factors relied upon, alone or in combination, establish that there has been a substantial miscarriage of justice.
One of the primary factors that sets the applicant’s case apart from many other cases of ‘historical’ sexual offending is the fact that there had been a contemporaneous complaint — albeit not of penetration or compelled masturbation — at the time of the events founding charges 1 and 2. This was not a case where a complaint of sexual offending had simply come ‘out of the blue’, many years after its alleged perpetration. Indeed, at the time that his sexual misconduct was discovered, the applicant admitted feeling NC to see what she felt like, and he and his wife attended counselling to deal with the applicant’s aberrant behaviour.
Moreover, this was not a case where critical evidence had become lost. No key witnesses were unavailable due to illness or death, or as a result of being unable to be located. Other than floor plans of the houses — NC was in any event able to provide hand-drawn diagrams — no important documents were unavailable. And it is difficult to see that the unavailability of counselling notes from when the applicant and PC attended counselling in the mid-1970s could have advanced the applicant’s case since, in all probability, their contents would likely have been prejudicial to him.
As we have said, the applicant’s counsel relied as an aspect of unfairness on the inability to adequately expose the content of the conversations that NC had with her mother over the years. In that respect, it was not disputed at trial that NC and her mother had various conversations in the period between 1975 and 2020, the details of some of the conversations being adduced in evidence. It is important to recognise, however, that rather than damaging the applicant’s case, such evidence as was available concerning the conversations between NC and her mother tended to buttress it. Indeed, it is apparent that these conversations generally supported the applicant’s essential ‘defence’ to the charges, in that NC and her mother confirmed that there was no complaint of any penetrative offending or compelled masturbation made by NC in the course of them. The failure to mention these features of the alleged offending would not have supported NC’s credit.
Further, we do not consider that there was much (if any) risk of contamination arising from the police using notes of the Church counsellor’s conversations with NC’s mother when taking NC’s first statement. NC expressed some disappointment that police had employed that technique, and made it plain that what was in the notes was not her account. There was also little risk of prejudice arising from conversations that NC had with her friend and former husband, given that defence counsel sought to confirm that NC’s complaints to them were general, and that no complaint was made of penetration (as opposed to mere touching).
With respect to the development of new memories shortly prior to the trial, it is plain that this phenomenon was examined in detail at trial. Unlike a lay juror, however, the trial judge was well-placed to understand the nature of NC’s memories and assess the reliability of her evidence, including any risk of unreliability and inaccuracy occasioned by the very long delay. The trial judge gave herself appropriate warnings in the course of carefully considering whether NC’s memory might have been honest but unreliable.[13] Plainly, in assessing NC’s evidence, the judge was able to (and did) take into account the fallibility of the human memory against the backdrop of such a lengthy delay.
[13]See [63] below.
Finally, whilst there were matters that NC and her mother could not recall due to the passage of time, none of them were central to the issues in the trial. The core allegations were clear, and — at least to the extent that NC had told her mother that the applicant had touched her ‘down there’ — were the subject of a timely complaint.
Even if one proceeds on the basis that, because of the very great delay, there was some ‘presumptive prejudice’ attending the applicant’s trial,[14] we consider that none of the factors relied upon by the applicant’s counsel can properly be said to have rendered the trial unacceptably unfair.
[14]Bauer (a pseudonym) v The Queen (2015) 46 VR 382, 389 [33] (Weinberg JA); [2015] VSCA 55.
Ground 1 cannot be upheld.
Conviction ground 2: Trial counsel’s failures
Ground 2 contended that a substantial miscarriage of justice resulted from the failure of the legal practitioner who appeared as counsel for the applicant in the trial to: first, adduce expert evidence in respect of matters potentially affecting the accuracy of the complainant’s memories; secondly, seek to obtain and adduce evidence in relation to the complainant’s sessions with psychologists and counsellors from the mid-1980s onwards; and, thirdly, adduce evidence that the applicant had no criminal record.[15]
[15]In accordance with Knowles (a pseudonym) v The Queen [2015] VSCA 141, [144]–[145] (Ashley, Redlich and Priest JJA), the legal practitioner was asked whether he wished to make any answer in response to the ground. He declined the opportunity to do so.
Acknowledging that an accused person ordinarily is bound by the conduct of his or her counsel, counsel for the applicant submitted that a miscarriage of justice is occasioned where, viewed objectively, the course taken by counsel is not explicable on the basis that it could have resulted in a forensic advantage, or where any forensic advantage which could have resulted was slight in comparison with the disadvantage resulting from that course.[16] In this case, counsel submitted, the decisions or omissions of trial counsel identified in the ground of appeal were not legitimate choices that competent counsel could fairly make. Together or individually, counsel submitted, those matters occasioned a substantial miscarriage of justice.
[16]Counsel cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Allen (a pseudonym) v The Queen [2016] VSCA 59, [74] (Maxwell P, Redlich and Priest JJA); and Stern (a pseudonym) v The King [2023] VSCA 57.
We do not agree.
Given that the applicant’s trial advocate was well aware that the possibility of calling expert evidence concerning the unreliability of memory was the subject of discussion as part of the application for a permanent stay — and was specifically referred to in the judge’s reasons — it is obvious that there was a deliberate forensic decision not to seek a report from an expert on memory.
In our opinion, counsel’s decision not to seek an expert report concerning memory was rational. The limitations of NC’s memory due to the passage of time were apparent from her evidence. More significantly, perhaps, counsel would have appreciated that the trial judge was better placed than a lay jury to assess whether NC’s memory had been the subject of contamination or reconstruction (or the like). Relevantly, the judge gave herself appropriate directions and warnings concerning the risk of NC’s evidence being honest but erroneous, together with a forensic disadvantage direction.[17]
[17]See [63] below.
Post-conviction, the applicant’s new solicitors obtained a report from Dr Andrew Gibbs, a neuropsychologist (and acknowledged expert on memory), concerning the potential unreliability of NC’s memories. Dr Gibbs’ opinions related to the reasonable possibility of memory distortion as a result of dissociation, counselling, misattribution, hindsight bias, false memory, folie à deux, and photographs. Plainly, however, Dr Gibbs’ opinions at best represented ‘new’ evidence; that is, evidence which was available at the trial or which could, with reasonable diligence, have then been discovered.[18] After a trial free from error or irregularity, it generally will be difficult to conclude that there has been a substantial miscarriage of justice in circumstances where there has been a failure to adduce relevant evidence which, had reasonable diligence been employed, would have been available at trial.[19]
[18]Bowden (a pseudonym) v The Queen (2017) 54 VR 135, 143 [34] (Priest JA, Maxwell P and Kidd AJA agreeing at 137 [1]); [2017] VSCA 46.
[19]Ibid 143–4 [35], 145–6 [38] (Priest JA, Maxwell P and Kidd AJA agreeing at 137 [1]).
As we have said, we consider that the decision not to obtain a report from an expert on memory was a rational forensic decision. In those circumstances, there was no occasion to receive or rely on the contents of Dr Gibbs’ report.
Furthermore, we consider that there were sound reasons why defence counsel made no applications for leave to issue subpoenas directed to counselling or psychological notes from those who had treated NC. This was a case where counsel had sought to capitalise on the generality of NC’s complaints. Counsel may well reasonably have apprehended that subpoenaing counselling and psychological notes presented the real risk of flushing out more detailed and specific allegations, unhelpful to the defence. In those circumstances, we consider that the supposed ‘failure’ to subpoena records of counselling and psychological treatment could not be said to be irrational.
Finally, with respect to counsel’s asserted ‘failure to adduce evidence that the applicant had no prior criminal history’, the trial judge asked defence counsel whether she needed to direct herself as to the applicant’s good character. Unsurprisingly, given that the applicant had admitted to sexually interfering with his adopted daughter, counsel submitted that the judge did not. An absence of a criminal history could only have borne on the applicant’s good character, which, in light of his admissions, the applicant plainly could not have been said to possess. And although it is now recognised that evidence of good character in a ‘particular respect’ may be adduced,[20] it is difficult to imagine what good character in a particular respect might have been available to the applicant. We are completely unable to see that the applicant could have put to legitimate use the absence of a criminal history. His trial counsel can hardly be criticised for failing to adduce such evidence.
[20]Evidence Act 2008, s 110. And see Bishop v The Queen (2013) 39 VR 642; [2013] VSCA 273; Schmidt v The King [2024] VSCA 256.
Ground 2 is without substance.
Conviction ground 3: Judge’s rejection of defence hypothesis
Ground 3 — supported by ‘particulars’ — contended that the trial judge erred in rejecting the defence hypothesis that NC’s evidence that the applicant had digitally penetrated her vagina, and had caused her to masturbate his penis, ‘may have been the product of reconstructed memories’.
In written submissions, counsel for the applicant submitted that the ground ‘speaks for itself’. The judge’s reasons for rejecting the defence hypothesis of potential reconstructed memories were ‘not logical’. Counsel for the applicant reminded the Court that NC did not make specific allegations of digital-vaginal penetration or forced masturbation until 2020, and submitted therefore that the judge was wrong to confine her analysis to the period when NC first complained to her mother. In the 45 to 47 year period between the ‘incidents in question’ (when NC complained to her mother) and 2020, multiple intervening events took place, including counselling with various counsellors and psychologists, and complaints to various friends and family members.
In her reasons, the judge said:[21]
[160]It was suggested by counsel that in assessing the whole of the complainant’s evidence, the court could infer that these new memories were part of a ‘reconstruction of memories process’. It was obliquely suggested that this reconstruction may well include reconstructed memories of the physical events the complainant gave evidence of as well.
[161]I specifically reject this submission. There is no evidence, at all, of any intervening act between the first event occurring and the complainant telling her mother that the [applicant] lied about what he was doing. An understanding of both the complainant and her mother’s evidence is that the complaint was made of sexual touching. It seems admitted that she was accurate about the frequency and location of the events. There is nothing to suggest that she confabulated the nature or degree of same.
[21]Reasons for conviction, [160]–[161].
We consider that it was open to the judge on the evidence to reject the submission that NC’s evidence concerning the particular physical activities founding the four charges on the indictment was the product of reconstructed memories. As the judge observed, after the applicant told his wife that he had merely been tucking the children in, NC immediately said that he had lied, and complained that the applicant had touched her ‘down below’. Quite clearly, NC’s complaint that she had been touched ‘down below’ could not have been the product of a reconstructed memory, in circumstances where the applicant contemporaneously admitted that he had been feeling NC, and many years later admitted to police that he frequently had sexually touched her.
The judge carefully considered whether NC’s memory might have been honest but unreliable. She said:[22]
[28]When assessing the complainant’s evidence, the delay is of great significance because of the passage of so many years between the dates of the alleged offending and the date of the complainant’s initial complaint to police. I must also acknowledge a warning about the reliability of that evidence.
[29]I accept that honest recollections of a witness about events that they believed to have occurred many years before may be unreliable. The passage of time may affect any witness’ memory. While in some cases, people simply forget things, in other cases, their memory may become distorted. That is, they may be able to remember things that did not really happen. Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay.
[30]I must take this potential unreliability into account when considering evidence that is given after a long delay in determining whether I accept the complaints at all. If I do accept any of them in whole or in part, I must further take this potential unreliability into account, in deciding what weight to give to any evidence that I do accept.
[31]In making this assessment, I must carefully consider not only whether the complainant’s evidence is honest in the sense that she believes it to be true, but also whether it is in fact true. While I will use my common sense and experience in assessing the effect of the delay upon the complainant’s reliability, I will also consider the possibility that she honestly believes what she is saying but is mistaken due to the distortion of her memory.
[32]This is particularly relevant with respect to her memory of the actual charged events and any memories that have, according to her evidence, arisen in more recent times which may, in general terms, be considered to be supportive of the accuracy of her recollections about the events themselves.
[33]I am referring, in particular, to the recent disclosures of what the [applicant] is alleged to have said while abusing her and afterwards. In prior disclosures by the complainant, the prosecution acknowledge that the complainant said she had little, or no memory of what words were said. In addition, the complainant recently recalled some exhortation by the [applicant], at general times of the abuse, not to tell anyone.
[34]However, I also remind myself that the courts, with experience in matters such as these, are aware that memory is not like a video that can be retrieved or replayed at will. Therefore, while the evidence of these apparent new recollections must be treated with care, there is no evidence of an intervening event, such as, for example, a hypnotic experience or a conversation resulting in a memory being implanted. I will, however, treat this evidence with great care.
[22]Ibid [28]–[34].
In our view, NC’s contemporaneous complaint that she was indecently assaulted by (in effect) being touched in her genital region, is generally consistent with her later, more detailed, complaints concerning the applicant’s sexual touching. The judge was circumspect in the manner in which she approached NC’s evidence, and gave herself appropriate warnings to be cautious of its acceptance. After careful consideration, she rejected the notion that NC’s evidence on critical matters might have been the product of reconstruction, particularly given that NC had made a complaint of generally consistent sexual activity when aged about 11 years. We consider that it was open to the judge to do so.
Ground 3 cannot succeed.
Conviction ground 4: Judge’s approach to complainant’s new memories
Shortly before the trial commenced, in October 2022, NC provided a statement in which she asserted that she had recently remembered the applicant saying to her ‘don’t tell anyone, it’s a secret’, and that if she did tell anyone, it would break up the family. It was not a recollection that had come to her earlier, and she expressed some confusion as to whether it was a true memory.
In support of ground 4, counsel for the applicant submitted that the fact that NC had developed a new memory in relation to matters intimately associated with the alleged offending should have given rise to real concerns that she may likewise have developed new memories (at an earlier time) of other matters associated with the alleged offending, including the alleged physical acts themselves. The judge, however, considered the development of the new memory almost 50 years after the relevant events to be ‘almost irrelevant’, ignoring the ‘flow-on’ effect that an impugning of the complainant’s reliability specifically could have on her reliability generally, thereby falling into error.
To the extent that the applicant asserts that the judge failed to consider whether there was such a ‘flow-on’ effect, we reject that submission. After recording the applicant’s suggestion that she infer that the new memory was part of a ‘reconstruction of memories process’ that included reconstructed memories of the physical events,[23] the judge explained why she ‘specifically reject[ed]’ that submission. Her reasons included the following:[24]
[161]…. An understanding of both the complainant and her mother’s evidence is that the complaint was made of sexual touching. It seems admitted that she was accurate about the frequency and location of the events. There is nothing to suggest that she confabulated the nature or degree of same.
[162]The complainant insisted that her recollection of the physical memories were always present and recalled as such. Life experience suggests that thinking about an event, even one that occurred long ago, may trigger long forgotten peripheral details. This is not unusual. When this occurs, memories so recalled may be accurate or inaccurate. …
[163]I did not detect any suggestion of confabulation in the complainant’s evidence, nor was there any suggestion of any outside influence in her memories. There was no evidence that she had discussed her evidence or memories of conversations with anybody before she provided police with her most recent statement. A memory of a conversation may assist in assessing the circumstances of the offending and give it further context. The physical events, I repeat, the physical events are the gravamen of each charge. The complainant’s version of the physical events has been largely consistent.
[164]The so-called recent memories of a conversation she now recalls, have very little to do in helping the court to decide whether the balance of her evidence about the form of the touching was as she states. The complainant, in effect, blamed her own childhood fears of abandonment on her lack of timely complaint, not a threat from the [applicant]. Therefore, the consequence of this recent memory is almost irrelevant.
[23]Ibid [160].
[24]Ibid [161]–[164].
The judge’s reasons therefore disclosed at least three reasons for rejecting the contention that the emergence of the new memory should impugn NC’s reliability generally. First, the new memory was of a peripheral detail. When a person is remembering an event that occurred long ago, the emergence of a memory of a peripheral detail does not necessarily suggest that the person’s memory of the core event is unreliable. Secondly, the reliability of NC’s memories of the core, physical details of the offending was supported by the contents of her contemporaneous complaint to PC, and the applicant’s admissions. Thirdly, the judge did not detect confabulation or contamination in NC’s evidence.
To the extent that this approach is said to be inadequate, we disagree. To risk repetition, when NC was about 11 years old, she had complained to PC that the applicant had been touching her ‘down below’, and, when PC confronted the applicant, he admitted to feeling NC to see what she felt like. The applicant and PC then engaged in counselling arranged by their Church to deal with the applicant’s admissions to having touched his adopted daughter. Moreover, in his record of interview with police, the applicant made admissions to regularly touching his adopted daughter. In those circumstances, we fail to see that NC’s development of ‘new memories’ could have been of much relevance in determining whether her evidence of the physical acts she described — digital-vaginal penetration and guided penile masturbation — was reliable.
Ground 4 is therefore without substance.
Conviction grounds 5 and 6: Judge’s error in using ‘escape’ evidence as support
As we have mentioned, NC gave evidence that, when living in Eltham, if she heard someone approaching, she would remove the flyscreen and climb out the window of her bedroom in case it was the applicant. Defence counsel submitted to the trial judge that these assertions were improbable, and reflected adversely on NC’s credibility.
The judge dealt with the matter as follows:[25]
[137]Counsel for the defence then submitted that either scenario, especially getting out of the window was improbable. In any event, he submitted, in the context of the complainant saying that she did so when she heard footsteps coming toward her room, it was impossible or improbable that she could achieve this within the available time frame.
[138]Specifically, it was suggested that it would have been impossible for her to open the window, remove the fly screen and jump out because that act or serious [scil, series] of acts, would have taken more time than it would have for the [applicant] to walk from the kitchen to the back room. The complainant simply confirmed that she frequently jumped out the window.
[139]The challenge to this scenario was suggested to be relevant to the complainant’s credibility in general. However, given that the [applicant] conceded that he did certain things to demonstrate a sexual interest in the child, and that sexual interest and his actions towards her (acting on that sexual interest as he admitted) continued after the family moved to [Eltham], the relevance of the challenge to the complainant jumping out the window or having time to do so is significantly diminished.
[140]The gravamen of the evidence about jumping out the window, it is the complainant’s recollection that she employed devices in order to avoid being in the room when the [applicant] came in. It is obvious that her tactics were not always successful as, on her evidence, and on the [applicant’s] admissions, she awoke to the abuse occurring on many occasions.
[141]It is obvious that the complainant could not have undertaken avoidance tactics while she was asleep. The offending woke her up and by then, clearly, it was too late to jump out the window. Her evidence was that on those occasions, she would still pretend to be asleep. Whether she actually avoided the [applicant] abusing her on one or more occasions by hiding in the way she said she did, is speculative. The fact that she took these extraordinary steps, which I accept she did, supports her evidence that the abuse was frequent and continuous and occurred both in the [Coburg] house and the [Eltham] addresses (sic). It supports her credibility generally and gives context to her version of events.
[142]The [applicant] concedes that he continued to have a sexual interest and acted on that sexual interest, so, whether she was able to successfully climb out the window or not, is irrelevant to an assessment of her credibility as to the physical extent of the abuse. It is obvious that if she was out of the room, sexual abuse in any form did not occur.
[25]Ibid [137]–[142] (emphasis added).
Under cover of ground 5, counsel for the applicant submitted that, in circumstances where the sole source of the evidence about the ‘extraordinary steps’ was NC herself, it could not possibly support her credibility generally or at all. And in support of ground 6, counsel argued that, since NC would not have been able to remove the flyscreen and climb out the window during the time it took the applicant to walk to her location, her assertion that she did so must have been a lie, reflecting generally on her credibility and reliability. In failing to properly consider the evidence and submissions about the impossibility or improbability of NC climbing out of the window in the timeframe available, counsel submitted, the judge failed to have regard to an important matter generally affecting NC’s credibility. In a case solely relying on NC’s credibility and reliability, this error is material and must result in the convictions being set aside.
Although, superficially, ground 5 has merit, it cannot succeed. The trial judge held that NC’s evidence of taking ‘extraordinary steps’ to climb out the window supported her credibility ‘generally’; and in particular, her evidence that ‘the abuse was frequent and continuous’. If, by these findings, the trial judge intended to convey that the evidence of ‘extraordinary steps’ provided independent support for NC’s evidence — as we consider she did — the trial judge clearly erred, since a complainant cannot offer independent support of his or her own evidence.[26]
[26]See R v Meyer [2007] VSCA 115, [9]; Ridley v Whipp (1916) 22 CLR 381, 382, 389; R v Baskerville [1916] 2 KB 658.
In our view, however, the error is innocuous, and could not have had any practical impact on the outcome of the trial.[27] The issues in the trial were narrow. It was not disputed that the applicant regularly indecently touched NC, in effect the significant disputed issues being whether that touching involved digital-vaginal penetration and masturbation of the applicant’s penis. NC’s credibility in respect of the fact of the abuse, and core aspects of the abuse, was therefore well supported by the applicant’s admissions. In those circumstances, any support for her general credibility that was derived from her account of the ‘extraordinary steps’ she took to climb out the window, could only have been minimal.
[27]See Karam v The King [2023] VSCA 318, [211]–[226] (in particular, [216]) (Beach, McLeish and Kennedy JJA), and the cases there cited.
So much is also apparent when the judge’s reasons are considered as a whole. It is clear that the judge accepted NC as a witness of credit. At various points, the judge found NC’s evidence to be consistent with other evidence, and internally consistent.[28] Further, it was to NC’s credit that she readily acknowledged when she could not clearly remember certain details.[29] NC’s demeanour when giving evidence also appears to have contributed to the judge’s assessment of her credibility.[30]
[28]Ibid [136], [139], [151]–[158], [163], [168].
[29]Ibid [103], [115], [121], [150], [165], [180].
[30]Ibid [177]–[180].
Thus, although the error pleaded in ground 5 is made out, we are not persuaded that a substantial miscarriage of justice resulted from it.
Ground 6 contends that the trial judge ‘erred in reasoning that whether the complainant was able to successfully climb out the window was irrelevant to an assessment of her credibility as to the physical extent of the abuse’. Approaching the ground on the basis that the judge should have found that NC’s evidence of climbing out the window was impossible or improbable, such a finding had little capacity to bear on an assessment of NC’s credibility ‘as to the physical extent of the abuse’.
In circumstances where it was not disputed at trial that the applicant indecently assaulted his adopted daughter with some regularity — in his record of interview he said that there were periods when he would indecently touch her a ‘couple of times a week’ — it is difficult to see that the impugned evidence could have had a negative impact on NC’s credibility ‘as to the physical extent of the abuse’. That NC had told the truth about the fact and frequency of the sexual abuse made it more likely she was telling the truth, honestly and accurately, about the physical extent of the abuse, which was tightly bound with its fact and frequency. This is turn significantly diminished the potential for any impossible or improbable assertion by NC that she had sometimes managed to escape from the bedroom (a relatively peripheral matter) to bear on her credibility or reliability as to the physical extent of the abuse.[31]
[31]See Reasons for conviction, [139].
Ground 6 does not succeed.
Conviction ground 7: Latent ambiguity on charges 3 and 4
Counsel for the applicant submitted that the convictions on charges 3 and 4 are infected by latent ambiguity, in that NC’s evidence did not sufficiently identify a particular occasion differentiating the charged acts from a series of alleged similar acts.[32] In response, counsel for the respondent submitted that, when NC’s evidence is viewed as a whole, it is clear that she gave evidence with respect to a particular occasion concerning charges 3 and 4.
[32]Counsel cited Johnson v Miller (1937) 59 CLR 467, 486; Walsh v Tattersall (1996) 188 CLR 77, 112; R v Clarke & Johnstone [1986] VR 643, 661; Bauer (a pseudonym) v The Queen (2015) 46 VR 382, 421–3 [183]–[190]; PPP v The Queen (2010) 27 VR 68, 70 [2], 80–88 [42]–[65].
We are of the opinion that, although the prosecutor’s form of asking questions is to be deprecated, the applicant’s submissions under cover of this ground ultimately cannot be accepted.
The prosecutor’s mode of eliciting NC’s evidence was permeated by a regrettable imprecision, liable to cause confusion. Despite defence counsel’s insistence that NC needed to be asked about specific incidents, rather than be asked what the applicant ‘would’ do, the prosecutor persevered in asking NC what the applicant would do, rather than what he did do on any specific occasion. Indeed, in the face of repeated admonitions to avoid asking NC what the applicant ‘would’ do, the prosecutor remained undisciplined in her manner of questioning.
We have concluded, however, that despite the lamentable form that the prosecutor’s questioning took, NC’s evidence ultimately provided a sufficiently clear narrative, capable of supporting the convictions on charges 3 and 4.
The following passage is illustrative:[33]
[33]Emphasis added.
HER HONOUR: All right. You might want to make that clear to the witness so she knows what the question’s about. Any difficulty with that, [defence counsel]?
[DEFENCE COUNSEL]: Well ultimately it has to be asked of the witness whether she recalls a specific - - -
HER HONOUR: I know. Yes.
[PROSECUTOR]: [NC], can you recall a specific instance when [the applicant] would come to your bedroom at night at Eltham?---I recall a time when he came – when he was there and um he was doing the same things that he did when we were in Coburg so rubbing my breasts, my – my genitals. He put my hand on his penis again.
When you say that he would touch your genitals, what would he do?---He – he would rub my clitoris down to my vagina and up and back, up and back.
When he would do this would he say things or can you hear him say words?---I can’t recall specifically words at that time but I can hear him murmuring, like I can hear his voice but now [scil, not?] words, if that makes sense.
What about you? Would you say anything?---No.
Your state of clothing, what would you be wearing?
[DEFENCE COUNSEL]: Well, Your Honour, we’ve gone back to ‘would’.
HER HONOUR: Good point.
[PROSECUTOR]: Can you recall what were you wearing?---No I can’t.
Can you recall what you would do when he would touch you on the genitals?--– I would – I would attempt to roll over to avoid him.
And when you did, what happened?---He – he would try and coerce me back onto my back.
And how would he do that?---By pulling my shoulder, rubbing – like he wasn’t pulling savagely, he was trying to coerce me back, rubbing gently.
HER HONOUR: Didn’t hear the last little word, ma’am? Was it - - -?---Sorry, rubbing – rubbing my shoulder - - -
Rub - - -?---Gently.
Rubbing your shoulder, gently? Thank you, ma’am.
[PROSECUTOR]: Then, you would talk about taking – grabbing – your hand, and putting it on his penis. Can you tell us a bit more about that?---Um, a – again, it – it was just taking my hand and putting it there, and – and trying to get me to – to rub my hand up and down, and hold him firmly; but I took my hand away, and rolled over again.
And when he did this – which is grabbing your hand, and putting it on his penis – how long would that last for?
[DEFENCE COUNSEL]: Sorry, Your Honour; I’ve got the same issue, again. It’s - - -
HER HONOUR: Can I – could I suggest to counsel that possibly the easiest way of eliciting the evidence that you’re trying to elicit, is simply ask the question and ask the witness to describe what happened? And then, for example, for what happened next?
[PROSECUTOR]: Understood.
HER HONOUR: It is often an easy way of giving evidence from people, so - - -
[PROSECUTOR]: Thank you, Your Honour. On this occasion, can you tell us what happened after he would grab your hand and put it on his penis?---Um, I took my hand away, and rolled over onto my – so my back was facing him.
And when you did that, what did you do?---Oh, I – uh, I don’t know.
How - - -?---It – it discontinued.
How long, approximately, did that last for? Which is your hand on his penis?---Uh, only briefly; but maybe five seconds, because I took my hand away.
And in relation to him touching your genitals on this occasion, how long did that last for?---Um, I woke up with him doing that, so I don’t know.
Sorry, you what? Did you say, ‘woke up’?---I don’t know, ‘cos I woke up to him doing that. So, I – awake, I would have perhaps – it might have been, you know, five seconds again.
But - - -?---Like - - -
HER HONOUR: Perhaps might I assist, Madam Prosecutor?
[PROSECUTOR]: Yes, Your Honour.
HER HONOUR: Ma’am, you just told the court that you woke up to him touching your genitals. Now, I’ll ask - - -?---Yes.
I’m going to ask a question in relation to that particular piece of evidence: can you describe what you felt?---Oh - - -
As you - - -?---Well, I – I felt - - -
As you woke up? What did you feel, as you woke up?---I felt one hand on my breast, and I felt fingers rubbing up and down my – (indistinct) to my vagina.
All right, what - - -?---And when I felt that, I rolled over and put my back to him.
All right.
[PROSECUTOR]: And when you rolled over, when then did he grab your hand to put it on his penis?---He – he coerced me; he – he was rubbing my shoulder and my arm, trying to get me to go back on my back. And then, he took my hand again, and placed it on his penis and started rubbing it up and down; but I – I took my hand away, and rolled over again.
And how did it stop?---’Cos I took my hand away.
And when he stopped, what did he do?---I don’t know what he did; I – I rolled over, with my back to him. I – I guess he left the room, but I wasn’t looking.
You gave evidence a while ago about climbing out of your bedroom window. How many times do you reckon you did that, while you were at Eltham?---I don’t know; less than a dozen. Maybe six, 10 times; more than five, less than 10. I don’t know.
Now in relation to this occasion, you gave evidence just a while ago about waking up, rolling over, and the like?---M’hmm.
Apart from that occasion, were there any other times that incidents like this happened?---Not that I recall, specifically; no.
In our opinion, the proper interpretation to be given to NC’s evidence in the passage extracted immediately above is that she was recounting a ‘specific instance’ in her bedroom at Eltham when the applicant did to her the ‘same things’ he had done previously in Coburg — she had given evidence that the applicant had touched her breasts, put one or two fingers in her vagina and put her hand on his penis — including rubbing her breasts and genitals, and putting her hand on his penis. On ‘this occasion’ in Eltham she woke to the applicant touching her genitals. She ‘felt one hand on her breast’, and ‘felt fingers rubbing up and down … to [her] vagina’. NC rolled and put her back to the applicant, but he ‘took [her] hand again, and placed it on his penis and started rubbing it up and down’.[34]
[34]Cf Bauer (a pseudonym) v The Queen (2015) 46 VR 382, 422–3 [187]–[188] (Priest JA, Weinberg JA agreeing at 385 [7]); [2015] VSCA 55. See also R v Trotter (1982) 7 A Crim R 8, 17–18 (McInerney, Anderson and Gobbo JJ).
As she was entitled to do, the judge rejected the notion that NC was ‘generalising, rather than giving evidence of a particular event that she recalled’. Thus, in her reasons, the judge said:[35]
I do not find this to be the case. Her evidence was that she recalled this particular occasion when she rolled over to face the wall and put her legs together, in order to stop the vaginal penetration. She recalled this event and confirmed in re-examination, that she was speaking of a particular recollection, rather than describing a general impression of what happened a lot, although it did on the complainant’s evidence. She recalled the [applicant] murmuring in a low raspy voice but could not clearly hear him or recall the words.
[35]Reasons for conviction, [122].
For these reasons, we reject the contention that the convictions on charges 3 and 4 are infected by latent ambiguity. Accordingly, ground 7 must fail.
Conviction ground 8: Aggregate of errors
Since there is not more than one error to aggregate, ground 8 must fail.
Sentence
With respect to the application for leave to appeal against sentence, we consider that grounds 3 and 4 are made out.
The trial judge sentenced the applicant in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Unlawful and indecent assault of a girl
2 years
12 months
2
Unlawful and indecent assault of a girl
2 years
3 months
3
Unlawful and indecent assault of a girl
3 years
Base
4
Unlawful and indecent assault of a girl
3 years
3 months
Total effective sentence:
4 years and 6 months’ imprisonment
Non-parole period:
2 years and 9 months
Other orders: Sentenced as a serious sexual offender on charges 3 and 4 pursuant to s 6F of the Sentencing Act 1991.
Reporting for 15 years pursuant to s 34 of the Sex Offenders Registration Act 2004.
Neither end of the Bar table drew the sentencing judge’s attention to current sentencing practices for the offence of unlawfully and indecently assaulting a girl under 16 as they applied in 1973 and 1975. That was a significant omission since, although s 5(2)(b) of the Sentencing Act 1991 requires a sentencing court to have regard to ‘current sentencing practices’ — so that the court must have regard to the sentencing practices which apply at the time of sentence[36] — sentencing practices applicable at the time of the commission of the offence are not thereby rendered irrelevant. Indeed, regard should be had to sentencing practice at the date of offending for the purpose of ascertaining just punishment in accordance with the principle of equal justice.[37] Hence, the Court observed in Stalio that
the concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence.[38]
[36]Stalio v The Queen (2012) 46 VR 426, 432 [9], 432–3 [11] (Neave, Osborn JJA and King AJA); [2012] VSCA 120 (‘Stalio’).
[37]Ibid 440 [52]–[53], 445 [78]. See also Bradley v The Queen [2017] VSCA 69; Thrussell v The Queen [2017] VSCA 386; Mush v The Queen [2019] VSCA 307.
[38]Stalio, 432 [9].
The applicant’s counsel provided us a list of ‘comparative’ sentencing cases.[39] Even before we reviewed the cases on this list, our impression was that the offences as charged in the indictment would not have attracted sentences of the order imposed by the judge had they been dealt with at a time proximate to the offending.
[39]R v [Redacted] (County Court of Victoria, Judge Hart, 27 January 1989) (‘Redacted’); R v Leeman (County Court of Victoria, Judge Byrne, 1990) (‘Leeman’); R v Lockhart (Victorian Court of Criminal Appeal, Adam, Little and McInerney JJ, 3 April 1974) (‘Lockhart’); R v Whelan [1973] VR 268 (‘Whelan’); R v Carstairs (Victorian Court of Criminal Appeal, Smith ACJ, Newton and Norris JJ, 4 October 1972) (‘Carstairs’); R v Archer (County Court of Victoria, Judge McNab, 17 February 1989); (‘Archer’); R v Stewart (Victorian Court of Criminal Appeal, Winneke CJ, Newton and Nelson JJ, 6 December 1973,); (‘Stewart’); R v Williams (Victorian Court of Criminal Appeal, Adam, Little and McInerney JJ, 4 April 1974) (‘Williams’); R v Whately (Victorian Court of Criminal Appeal, Gillard, Menhennitt and Norris JJ, 1 November 1974) (‘Whately’); R v Mayne (Victorian Court of Criminal Appeal, Young CJ and Gillard and Anderson JJ, 9 December 1975) (‘Mayne’); R v Howard & Morgan (County Court of Victoria, Judge Nixon, 14 December 1988) (‘Morgan’); R v Walsh (Victorian Court of Criminal Appeal, Little, Gillard and Lush JJ, 6 November 1973) (‘Walsh’); R v Wilson (County Court of Victoria, Judge Crossley, 1990) (‘Wilson’); R v Van Loon (Victorian Court of Criminal Appeal, Young CJ, Gillard and Murray JJ, 16 July 1975) (‘Van Loon’).
Our review of the cases confirmed that impression. The 14 cases listed, with one exception,[40] concerned offending in around 1964–82. In all but one case,[41] the offender had pleaded guilty to the charges for which he was to be sentenced. The gravest individual sentence imposed on a count of indecent assault in each case was as follows: in two cases (14.2 per cent), a good behaviour bond;[42] in three cases (21.4 per cent), 9 months’ imprisonment;[43] in seven cases (42.8 per cent), 12 months’ imprisonment;[44] in two cases (14.2 per cent), 2 years’ imprisonment;[45] and in one case (7.1 per cent), 3 years’ imprisonment.[46]
[40] [Redacted] was sentenced in 1989, but the sentencing remarks do not state when the offending occurred.
[41]Whelan.
[42]Redacted; Leeman.
[43]Whelan; Lockhart; Carstairs.
[44]Carstairs; Archer; Stewart; Williams; Whately; Mayne; Morgan.
[45]Walsh; Wilson.
[46]Van Loon.
The case in which a sentence of three years’ imprisonment was imposed, Van Loon, was exceptional. The offender had antecedents for incest, indecent assault, and buggery against his daughter, for which he had been placed on a period of probation, during which he re-offended against his daughter. He pleaded guilty to two counts of incest, on each of which he was sentenced to 10 years’ imprisonment, to be served concurrently; and two counts of indecent assault, on each of which he was sentenced to three years’ imprisonment, to be served concurrently. The total effective sentence was 13 years’ imprisonment. with a minimum term of 10 years.
In Wilson, one of the two cases in which a term of imprisonment of two years was imposed, the offender had led a number of children’s sporting clubs. He pleaded guilty to 51 counts of indecent assault and three counts of gross indecency against nine young girls. On the 51 counts of indecent assault, the offender had patted, fondled and touched the victims. On each count he was sentenced to two years’ imprisonment. On the three counts of gross indecency, the offender was sentenced to 12 months’ imprisonment. Total concurrency was ordered, resulting in a total effective sentence of two years’ imprisonment. A minimum term of eight months was ordered.
In the second of the two cases, Walsh, the offender tricked two young schoolgirls into a toilet, invited them to play with his penis, fondled them, and placed his penis between the legs of one of the girls before ejaculating. The offender pleaded guilty to two counts of abduction, on each of which a sentence of 12 months’ imprisonment was imposed, to be served concurrently. He also pleaded guilty to one count of indecent assault (of one of the girls), on which a sentence of two years’ imprisonment was imposed. The total effective sentence was three years’ imprisonment, with a minimum term of 18 months. It is true, as the respondent pointed out, that the Court of Criminal Appeal described the sentence on the indecent assault as ‘on the lenient side’. However, this was a case where the offender had a history of sexual activity with young girls, and of unsuccessfully undergoing psychosexual therapy. It also involved two victims in each other’s presence, despite only one charge of indecent assault having been laid.
It is also true, as the respondent contended, that in many of the old judgments, the recorded details of the offending were often sparse. What is clear, however, is that overall, sentences for offending of this kind were generally less substantial then, than they are today. So in Redacted, a good behaviour bond was imposed for 37 counts of indecent assault of the offender’s three daughters over a period of 10 years, involving the touching of their breasts and genitalia. They were aged seven to 15. And in Whelan, the offender, who pleaded not guilty, was sentenced to nine months’ imprisonment on one count of indecent assault of a 16 year old girl, where he had, against her will, driven her to a secluded place, stripped her, and digitally penetrated her vagina. The statistics we have set out above also bear out this conclusion.
Paying due regard to the sentencing practices that applied at the date of the offence, we consider the sentences imposed by the judge to be manifestly excessive. Intervention is therefore called for.
In light of our conclusions, we would grant leave to appeal on grounds 3 and 4; allow the appeal; and resentence the appellant in the manner reflected in the table below.
For the purposes of resentencing, we have endeavoured to take into account the circumstances of the offence and the circumstances of the offender, and to balance relevant features in mitigation and those in aggravation. Among the relevant factors, we have paid due regard to the fact that the applicant’s offending involved a significant breach of trust over a significant period, and included actual penetration of NC’s vagina (albeit penetration was not an element of the offence). Against those factors, we have taken into account that the applicant, now aged 78 years, has led a blameless life for almost half a century, and that he is, in our view, unlikely in the future to pose a significant danger to the community.
As part of the resentencing exercise, we have also taken into account that the appellant is to be sentenced as a serious sexual offender on charges 3 and 4, so that, in fixing sentence on those charges, the Court must regard the protection of the community as the principal purpose for which the sentence is imposed (and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances);[47] and that every term of imprisonment imposed by the Court must, unless otherwise directed, be served cumulatively with any other sentence of imprisonment imposed.[48] Since we do not consider the appellant in future to pose a significant danger to the community, we see no need to impose a disproportionate sentence.
[47]Sentencing Act 1991, s 6D.
[48]Sentencing Act 1991, s 6F.
In all the circumstances, we will sentence the applicant as reflected in the following table:
Charge
Offence
Sentence
Cumulation
1
Unlawful and indecent assault of a girl
15 months
6 months
2
Unlawful and indecent assault of a girl
9 months
3 months
3
Unlawful and indecent assault of a girl
2 years
Base
4
Unlawful and indecent assault of a girl
15 months
3 months
Total effective sentence:
3 years’ imprisonment
Non-parole period:
21 months
Other orders:
The appellant is sentenced as a serious sexual offender on charges 3 and 4.
We will also declare the appropriate number of days pre-sentence detention; and will confirm all other ancillary orders of the County Court (including the order for registration under s 34 of the Sex Offenders Registration Act 2004).
Given our conclusions on the third and fourth grounds, it is unnecessary to consider grounds 1 and 2.
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