Butcher v The King
[2024] VSCA 322
•18 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0141 |
| LACHLAN BUTCHER | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | Emerton P, Taylor JA and Kidd AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 November 2024 |
| DATE OF JUDGMENT: | 18 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 322 |
| JUDGMENT APPEALED FROM: | DPP v Butcher (County Court of Victoria, Judge Hassan, 3 April 2023) (Conviction); [2023] VCC 1124 (Sentence) |
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CRIMINAL LAW – Conviction – Application for leave to appeal – Applicant charged on indictment with two charges of sexual assault and five charges of rape – Jury returned verdicts of guilty on one charge of sexual assault and one charge of rape (charge 6) – Applicant and complainant were work colleagues and friends – Applicant took complainant back to his home after work function – Complainant intoxicated – Complainant fell asleep in applicant’s bed – Complainant alleged she was repeatedly woken by applicant penetrating her vagina with his penis – Charge 6 charged one sexual penetration only – Whether charge 6 bad for latent duplicity – Charge 6 not latently duplicitous – Leave to appeal refused.
CRIMINAL LAW – Conviction – Application for leave to appeal – Whether verdicts inconsistent – Verdicts can be reconciled and are logically explicable – Different verdicts product of the jury carefully considering evidence – Verdicts not unreasonable – Leave to appeal refused.
CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant photographed complainant while complainant sleeping – Use of an optical surveillance device – Summary offence – Whether sentence manifestly excessive – Serious example of the offence – Leave to appeal refused.
CRIMINAL LAW – Sentence – Application for leave to appeal – Use of an optical surveillance device – Summary offence – Whether judge imposed sentence on the wrong factual basis – Judge mistakenly proceeded upon wrong factual basis – Prosecution cannot depart from way it conducted the plea – Material error established – No reasonable prospect that the Court would reduce the total effective sentence despite error in the sentence first imposed – Leave to appeal refused.
Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016), ss 38, 40; Criminal Procedure Act 2009, sch 1 cl 4A; Surveillance Devices Act 1999, s 7.
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; S v The Queen (1989) 168 CLR 266; [1989] HCA 66; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26; MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; R v Khouzame (1999) 108 A Crim R 179; [1999] NSWCCA 173; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; R v Beary (2004) 11 VR 151; [2004] VSCA 229; Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84; PPP v The Queen (2010) 27 VR 68; [2010] VSCA 110; Tognolini v The Queen (2011) 32 VR 104; [2011] VSCA 113; Mourkakos v The Queen [2018] VSCA 26; Conolly (a pseudonym) v The Queen [2019] VSCA 125; Pate (a pseudonym) v The Queen [2019] VSCA 170; Johns v The Queen (2020) 22 MVR 160; [2020] VSCA 135, considered.
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| Counsel | |||
| Applicant: | Mr PJ Smallwood | ||
| Respondent: | Mr G Buchhorn | ||
Solicitors | |||
| Applicant: | Doogue + George | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
PART A:. INTRODUCTION
PART B:. THE EVIDENCE
(1).... The complainant’s evidence
(a) Background evidence
(b) The charged acts
(c) The sequence of events
(d) Sending of the message to her partner
(e) Taking of the photograph
(f) The alleged admissions
(2).... The complaint evidence
(3).... The record of interview
PART C:. THE PARTIES’ CASES AT TRIAL
(1).... The prosecution case at trial
(2).... The defence case at trial
PART D:. APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
(1).... Ground 1: The verdict on charge 6 was bad for uncertainty or latent duplicity
(a) The applicant’s submissions
(b) The respondent’s submissions
(c) The legal framework
(d) Analysis
(i) Charge 6 was founded on ‘first occasion’
(ii) If charge 6 founded upon multiple acts as a ‘single activity’
(iii) There was no prejudice or unfairness
(iv) The applicant’s ‘compounding prejudice’ argument
(v) The applicant’s course of conduct argument
(vi) Conclusion on ground 1
(2).... Ground 2: The verdicts on charge 1 and charge 6 were unreasonable or cannot be supported by the evidence
(a) The applicant’s submissions
(b) The respondent’s submissions
(c) Legal framework
(d) Analysis
(i) Preliminary observations
(ii) The evidence on reasonable belied in consent — charges 1 and 6
(iii) The evidence on reasonable belief in consent — charges 2 to 5 and 7
(iv) The specificity of evidence on charge 3 by comparison to charge 6
(v) Sleep not an issue at trial
(e) Conclusion
PART E:. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
(1).... The sentence
(2).... Ground 2: There was an error in the sentence first imposed on summary charge 9 arising from the applicant having been sentenced on the wrong factual basis
(a) The applicant’s submissions
(b) The respondent’s submissions
(c) Analysis
(i) Was there an error?
(ii) Materiality
(iii) Disposition
(3).... Ground 1: The sentence imposed on summary charge 9 was manifestly excessive
(a) The applicant’s submissions
(b) The respondent’s submissions
(c) Analysis
EMERTON P
TAYLOR JA
KIDD AJA:
PART A:INTRODUCTION
The applicant, Lachlan Butcher, was charged on indictment with two charges of sexual assault[1] (charges 1 and 4) and five charges of rape[2] (charges 2, 3, 5, 6 and 7).
[1]Crimes Act 1958, s 40.
[2]Crimes Act 1958, s 38.
He pleaded not guilty to each charge on the indictment.
The charges arose from an episode that occurred in the early morning of 26 July 2019. The applicant and the complainant, Bianca Joseph,[3] were colleagues. At trial, it was common ground that the applicant took the complainant to his home after a work function that involved the consumption of alcohol. The complainant was intoxicated at the time, although there was a dispute about her level of intoxication.
[3]Pursuant to s 4(1A) of the Judicial Proceedings Reports Act 1958, the complainant has been given a pseudonym.
The prosecution contended that, over the course of the early morning, the applicant engaged in sexual activity with the complainant without her consent and in circumstances where he did not reasonably believe that she was consenting.
On 3 April 2023, following a nine-day trial, the jury returned verdicts of guilty on charges 1 (sexual assault) and 6 (rape). The applicant was acquitted on the other charges.
Additionally, the applicant consented to the trial court determining a summary charge of using an optical surveillance device[4] (summary charge 9). This related to the applicant photographing the complainant. The applicant pleaded guilty to that charge.
[4]Surveillance Devices Act 1999, s 7.
On 14 July 2023, the applicant was sentenced as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Sexual assault[5] | 10 years | 18 months | Nil |
| 6 | Rape[6] | 25 years | 5 years and 6 months | Base |
| Related Summary Offences | ||||
| 6 | Using an optical surveillance device[7] | 240 penalty units or 2 years | 1 year | 3 months |
| Total Effective Sentence: | 5 years and 9 months’ imprisonment | |||
| Non-Parole Period: | 3 years and 9 months | |||
| Pre-sentence Detention Declared: | 102 days reckoned as pre-sentence detention | |||
| Section 6AAA Statement: | 1 year and 3 months’ imprisonment (related summary offence only) | |||
[5]Contrary to s 40 of the Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016).
[6]Contrary to s 38(1) of the Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016).
[7]Contrary to s 7 of the Surveillance Devices Act 1999.
The applicant makes an application for leave to appeal against conviction on two proposed grounds:
Ground 1: The verdict on charge 6 was bad for uncertainty or latent duplicity.
Ground 2:The verdicts on charge 1 and charge 6 were unreasonable or cannot be supported having regard to the evidence.
For the reasons detailed in Part D, we refuse to grant leave to appeal against conviction on each proposed ground of appeal.
The applicant also makes an application for leave to appeal against sentence on two proposed grounds:
Ground 1: The sentence imposed on summary charge 9 was manifestly excessive.
Ground 2:There was an error in the sentence first imposed on summary charge 9 arising from the applicant having been sentenced on the wrong factual basis.
For the reasons detailed in Part E, we refuse to grant leave to appeal against sentence on each proposed ground of appeal.
PART B:THE EVIDENCE
It is necessary to recount the facts in some detail. We first detail the way that the evidence unfolded at trial. We will then outline the broad architecture of the prosecution and defence cases at trial.
(1)The complainant’s evidence
(a)Background evidence
The complainant and the applicant were work colleagues. The complainant was an administrative assistant, and the applicant was employed as a manager. The complainant did not report directly to the applicant. The complainant gave evidence that she and the applicant were ‘good enough friends’. Together with other colleagues, they would socialise both during and outside of work, including by getting coffee and having drinks after work.
On 25 July 2019, the complainant and the applicant attended a work dinner at a restaurant in the Melbourne central business district. The complainant said that the dinner commenced at approximately 7:30 pm. She agreed that about 17 people were in attendance, which included colleagues and external stakeholders.
The dinner included the consumption of alcohol. The complainant estimated that, in total, ‘about 15 bottles [of wine] were shared’. She said that she consumed five to 10 glasses of wine. She could not recall the exact amount.
Following the dinner, the complainant said that she, the applicant, and three other colleagues walked a short distance to a nearby bar. She described herself as ‘fairly drunk’ and ‘heavily intoxicated’. She could not ‘remember the steps getting there’ and did not ‘remember much of being at the second bar’.
The complainant said that she went out the front of the bar to have a cigarette with the applicant. She remembered sitting on the ground. She felt ‘sick’ and ‘dizzy’ and eventually vomited. She could not remember how many times she vomited but gave evidence that she ‘vomited the whole time [she] was outside’. While she could not say whether the applicant saw her vomiting, she thought he was standing in front of her while he was smoking.
At some point, the group made a decision to leave. The complainant thought that this was around 2:00 am, but she could not be certain. She said that she had intended to go to her partner’s house in Moonee Ponds. She recalls ordering an Uber to take her there. When the Uber arrived, the complainant said that the applicant got into the car with her. She said that, at the time, she was not sure why the applicant had followed her.
The complainant alleged that the applicant asked the Uber driver to change the destination address to the applicant’s address.[8] The Uber driver told the applicant to do this via the Uber application. The complainant said that the applicant then took her phone out of her hands and changed the destination. She said that there was no discussion between her and the applicant about them going to his house.
[8]Some six weeks after the commission of the offence, the police obtained a statement from the Uber driver. The Uber driver could not remember this trip, nor whether he had a conversation with the applicant. In her charge, the trial judge gave the jury a forensic disadvantage direction with respect to this evidence.
The complainant did not stop the applicant from changing the destination address nor indicate that she did not want to go to his house. When asked why, she said that she thought the applicant saw how drunk she was and that he wanted to look after her. She said that she felt safe and did not question what was happening ‘at that point’.
When they arrived at the applicant’s house, the complainant said that they went into the living room and sat on his couch. The applicant offered the complainant a cigarette, which she took. She said that smoking the cigarette ‘prompted a vomit’. She vomited in the bathroom before returning to the living room and falling asleep on the couch. The applicant was sitting next to her.
At some point, the applicant suggested that they go into his bedroom. The complainant said that she agreed. She said that the applicant went into the bedroom first and that she followed shortly after. When she entered, the complainant laid down on the bed straightaway. When the prosecutor asked her why she wanted to sleep on the applicant’s bed, the complainant said that she was tired and ‘already so drunk and exhausted’; she said that she ‘just wanted to sleep’. She gave evidence that the ‘alcohol affected her bodily functions’, such that she ‘physically felt like [she] couldn’t get back up and move’.
The complainant gave evidence that she went to sleep. At the time, she was wearing her clothes, being grey work pants and a black turtleneck top. She was sleeping on top of the doona and was on the bed by herself. She remembered been awoken by the applicant taking off her work pants. When she questioned the applicant, she recalls him telling her that she would be more comfortable. She did not protest because she thought ‘he was saying that out of [her] best interests’. She then recalls going to vomit. When she returned to the bedroom, she said that she went underneath the covers. She eventually went back to sleep.
On the complainant’s account, it was at this point that the assault commenced.
(b)The charged acts[9]
[9]This is taken from her evidence-in-chief. Her narrative relating to each charged act did not alter in cross-examination. Cross-examination focused upon the sequence of these sexual acts — not the acts themselves.
What took place seems to have largely occurred while the lights were off. The complainant’s account is mostly based upon what the complainant felt happened to her.
The complainant’s evidence with respect to charge 1 (touching her breasts with his hands) was as follows:
PROSECUTOR:
And did you fall asleep?
COMPLAINANT:
Yes.
PROSECUTOR:
What is the next thing that you say happened or you recall happened?
COMPLAINANT:
I remember – the next thing I remember is, um, I was sat up, and [the applicant] was taking off my shirt and my bra. Um, I think I asked him what he was doing, but I was half-asleep at that point, and then I just laid back down and then continued to try to sleep.
PROSECUTOR:
When you say you were half-asleep at that time and he was trying to take off your bra and your shirt, is it?
COMPLAINANT:
Yep. Yes.
PROSECUTOR:
All right. Did he take off your bra and shirt?
COMPLAINANT:
Yes, he did.
PROSECUTOR:
All right. And you’ve indicated that you were half-asleep at that time. What do you mean by that? Can you describe how exactly you were feeling at that time?
COMPLAINANT:
I was still – had my eyes closed when he sat me up. Um, I was not fully conscious, not fully awake and, I guess, understanding what was happening. And once he took it off, I just laid back down.
PROSECUTOR:
Did you say anything to him about why – you said earlier you said – you think you said, “What are you doing?” or something of that nature. Do you - - -?
COMPLAINANT:
Yes.
PROSECUTOR:
- - - recall him saying anything in response? This is to the bra and the top or shirt?
COMPLAINANT:
No, I don’t recall what he said.
PROSECUTOR:
All right. Did you say anything further to him at that stage in relation to him taking off your bra and your top?
COMPLAINANT:
No, I think I just laid back down and tried to go back to sleep at that point.
PROSECUTOR:
Why did you let him take off your bra and your top - - -?
COMPLAINANT:
I - - -
PROSECUTOR:
given that you’re work colleagues?
COMPLAINANT:
I didn’t let him, because he never asked.
PROSECUTOR:
What do you mean by that? You didn’t let him?
COMPLAINANT:
I was asleep when he was starting to do it, so - - -
TRIAL JUDGE:
She’s given her explanation.
The prosecutor continued to elicit further details concerning the fondling of the complainant’s breasts:
PROSECUTOR:
All right. And do you recall what position your body was in when you went to sleep?
COMPLAINANT:
Um, facing up.
PROSECUTOR:
And what happened next that you recall?
COMPLAINANT:
Um, well, I remember him touching my breasts when he took my top and bra off at that point. Um, afterwards, I remember him - - -
PROSECUTOR:
If I can stop you there, sorry. In terms of him touching your breast, you said after he took your top and bra off. Can you describe what he did in relation to your breast?
COMPLAINANT:
Um, he was touching them with his hands, I guess just, um, ah, fondling them.
PROSECUTOR:
All right. And you’re referring to both breasts?
COMPLAINANT:
Yes.
PROSECUTOR:
Yes. And what happened next?
COMPLAINANT:
Um, I remember falling back asleep, and I remember him lying next to me and trying to cuddle me at some point. I remember him trying to kiss me on my lips, and I turned away. Like – ah, like, I turned my – I turned my face away from him. Um - - -
PROSECUTOR:
If I can just stop you there. So you’ve referred to him touching your breasts and fondling them. At that stage, what clothing were you wearing?
COMPLAINANT:
Um, my underwear only.
PROSECUTOR:
All right. Did you say or do anything when he started fondling your breasts?
COMPLAINANT:
I pushed his hand away - - -
PROSECUTOR:
And why did you do that?
COMPLAINANT:
- - - and – sorry.
PROSECUTOR:
Why did you do that?
COMPLAINANT:
Because I didn’t want him to touch my breasts.
The complainant gave the following evidence with respect to charge 2 (introducing his fingers into her vagina):
PROSECUTOR:
… [D]o you recall him after that – after he’d been fondling your breasts and you referred to him trying to kiss you and you turning away, did he touch any part of your body sexually?
COMPLAINANT:
Um, yep, I remember him lying next to me, and he had his hand over my underwear. Um, I remember pushing it away. Um, um, sorry. I remember him going underneath the doona and – and kneeling over – I guess kneeling over my bottom half and pulling my underwear off.
PROSECUTOR:
You’ve referred to his hand being over your underwear initially, and was he touching any part of your body over the underwear? What area are you talking about of your body?
COMPLAINANT:
He was touching my vagina over – over my underwear.
PROSECUTOR:
All right. And then you referred to him taking your underwear off. Did he touch your vagina again?
COMPLAINANT:
Yes, he did, with his fingers, and I remember him also licking my vagina.[10]
PROSECUTOR:
All right. Just taking you back to when you say that he touched your vagina with his fingers, can you describe exactly what he did with his fingers, please, in relation to your vagina in as much detail as you can?
COMPLAINANT:
I remember him touching my – my – my clitoris with – with his fingers, and I felt his fingers go inside my – inside my vagina.
PROSECUTOR:
And how long did that go for in terms of his fingers going in the vagina, from your recollection?
COMPLAINANT:
I remember as soon as I felt his fingers, I – I pushed him away.
PROSECUTOR:
Yes, and did he – in terms of your situation there, you’ve indicated that your underwear had been removed; is that right?
COMPLAINANT:
Yes.
[10]This is part of charge 5. The complainant returned to this in her in evidence-in-chief. That evidence is set out below.
The complainant was asked what happened next. Although she was unable to give a precise timeframe, the complainant gave the following account which founded charge 3 (introducing his penis into her vagina):
PROSECUTOR:
And what’s the next thing in terms of sexually that may have happened after that that you recall?
…
COMPLAINANT:
I do remember him putting his penis in my vagina.
PROSECUTOR:
And can you describe what position your bodies were in when he did that?
COMPLAINANT:
I was still facing up. I hadn’t moved. Um - - -
…
PROSECUTOR:
Go ahead, sorry?
COMPLAINANT:
He spread my legs, and he put his penis in my vagina.
PROSECUTOR:
What did you do or say in response to that, if anything?
COMPLAINANT:
I remember I started swearing at him at one point. I told him to stop, and I pushed – I pushed his body away as soon as I felt something inside my – my vagina.
PROSECUTOR:
All right. You’re referring to feeling something in your vagina. Could you see what was happening at that stage? Do you have a recollection of seeing?
COMPLAINANT:
No. It was – the lights were off, so I couldn’t see what was happening.
PROSECUTOR:
All right. And what did it feel like when you said you felt something in your vagina at that point? What was it that you were feeling?
COMPLAINANT:
Ah, I – I felt what – felt like a penis.
PROSECUTOR:
And where was his body in relation to yours when you say you were facing up still?
COMPLAINANT:
He was on top of me.
PROSECUTOR:
So - - -?
COMPLAINANT:
Facing down on me.
PROSECUTOR:
So you’ve indicated that you had told him at that point to stop. Had you told him to stop previously, or is this the first time that you’ve told him to stop?
COMPLAINANT:
Um, I believe I told him to stop when he, um – when he started licking[11] and putting his fingers on my vagina. In my vagina.
PROSECUTOR:
And when you referred to feeling something in your vagina, and you referred to a penis, at that time. You had said to him or made a statement to him. Did you do anything in response to what he was doing when he was on top of you?
COMPLAINANT:
I – I remember pushing him off. Well, I tried pushing him off with my hands.
PROSECUTOR:
What was his reaction or response to that? Do you have any recollection of how he appeared to you?
COMPLAINANT:
I don’t remember his – I don’t remember him saying anything. I remember him stopping when I pushed him off, but trying again a little while after.
…
COMPLAINANT:
I can’t see his face physically at that point. So I can’t see what his reactions were. But he did get off me when I told him to stop and when I pushed his body away.
[11]This is also relevant to charge 5. The complainant returned to this in her in evidence-in-chief. That evidence is set out below.
It was at this point that the complainant referred to the conduct the subject of charge 6 (introducing his penis into her vagina):
PROSECUTOR:
And what did he do next?
COMPLAINANT:
He – I don’t know where he went at that point, but I remember falling asleep after that and being woken – woken up – woken up again to the same thing.
PROSECUTOR:
When you say the same thing, what did you feel or see happen?
COMPLAINANT:
I felt his penis go into my vagina again. And that woke me up. And I pushed him off again when it happened, or when I felt it.
During subsequent questioning, the complainant indicated that the applicant had engaged in ‘attempts’ (i.e. plural) of putting his penis into her vagina, which prompted the following exchange:
PROSECUTOR:
How many times did he put his penis inside your vagina?
COMPLAINANT:
I would say I got woken up maybe five plus times. I can’t say specific number, but I remember waking up multiple times over that night.
PROSECUTOR:
And when you say – and the question I asked you was how many times did he put his penis in your vagina, and you say, “I got woken up five plus times”, are you indicating that it was five times that his penis was in your vagina and you awoke, or what are you saying as to the question how many times you recall his penis being in your vagina on different occasions that night?
COMPLAINANT:
Yeah. I – I do remember feeling it inside my vagina, like, five – five times.
The complainant was asked if anything happened after the first act of penile-vaginal penetration (charge 3) and before the second act of penile-vaginal penetration (charge 6). The complainant gave the following evidence, which forms the basis of charge 4 (licking her nipples):
PROSECUTOR:
Before his penis went into your vagina again, had he touched or done anything else sexually to any other part of your body that you haven’t referred to?
COMPLAINANT:
Um, at some point he laid on the right side of me, and I remember him licking my nipples.
PROSECUTOR:
Okay. Is that both your - - -?
COMPLAINANT:
Or – or one nipple. I think it would have been my right nipple. I don’t think it was both. I can’t remember if it was both nipples or not.
The complainant then gave evidence about the conduct the subject of charge 7 (introducing his penis into her mouth):
PROSECUTOR:
All right. And in relation to anything else that may have occurred sexually before you say that his penis was in your vagina again?
COMPLAINANT:
I remember at some point he stood closer to my mouth, and he tried to put his – his penis into my mouth.
PROSECUTOR:
At what stage did that occur? Was that before or after he put his penis in your vagina the second time?
COMPLAINANT:
I can’t say. It would have been in between attempts of putting his penis inside my vagina.
Later in her evidence, the complainant was asked further questions about the evidence in respect of charge 7 (introducing his penis into her mouth):
PROSECUTOR:
Now, in relation to the last – before that, you mentioned that his penis – you felt his penis in your mouth; is that right?
COMPLAINANT:
Yes.
PROSECUTOR:
And if you could describe that in whatever detail you can as to what part of his penis or how much of his penis went into your mouth, please?
COMPLAINANT:
I felt his – I felt the tip of his penis go between my lips, and when I felt it, I pushed him away.
Finally, the complainant was asked about the conduct the subject of charge 5 (introducing his tongue into her vagina):[12]
[12]Earlier in her evidence (when she was describing the first occasion on which he penetrated her vagina with his penis), the complainant had made a passing reference to the applicant also having licked her vagina.
PROSECUTOR:
When you say he was – and I think the words you used were “tried to lick your vagina”, and earlier you said “licked my vagina”, can you describe exactly what you mean in terms of where his tongue went in relation to your vagina when you say “licked my vagina”?
COMPLAINANT:
He – he licked my clitoris, and I don’t remember if he tried to go, like, inside my vagina with his tongue. I can’t recollect that. But I remember him just licking all around the area.
…
PROSECUTOR:
If I can just refer to the outer lips of – I didn’t want to lead too much, but the outer lips of the vagina. (To witness) And you said he licked all over. Did he lick within the outer – inside or within the outer lips but not in the hole?
COMPLAINANT:
Yes, I – again, I can’t specifically pinpoint if his tongue went inside the hole, but I do remember him licking around the clitoris, around the flaps - - -
PROSECUTOR:
Right?
COMPLAINANT:
- - - around the lips.
PROSECUTOR:
And when you say around, was it inside the lips as well?
COMPLAINANT:
Yes, yes.
(c)The sequence of events
There was some real ambiguity about the precise sequence of some of the sexual acts.
There was some uncertainty about when the applicant licked her nipples (charge 4). She said this occurred ‘at some point.’
There was also uncertainty about the point in time when he introduced his tongue into her vagina (charge 5). The complainant later gave the following evidence:
PROSECUTOR:
Earlier you referred to him licking your vagina. When did that occur in relation to what you’ve described?
COMPLAINANT:
He tried – I mean, he did that before he tried putting his penis in my vagina. So that was the first, I guess, interaction with my vagina.
PROSECUTOR:
Was that the – because initially you talked about your breast and the fingers in your vagina and then penile penetration. And you talked about a second time of the penis penetrating your vagina?
COMPLAINANT:
Yep.
PROSECUTOR:
Was it before the first time, or before the second time, or you’re not able to say?
COMPLAINANT:
So he tried to put his finger in me. That was the first time. He tried to put his finger in my vagina – in my vagina. And then he tried to lick my vagina. And then, afterwards, he tried putting his penis inside my vagina.
In cross-examination, the complainant accepted that in her police statement, she had stated that the applicant had introduced his tongue into her vagina (charge 5) after he had first penetrated her vagina with his penis (charge 3). She agreed this order of events was different from her evidence before the jury.
In cross-examination, the complainant also accepted the following propositions:
DEFENCE COUNSEL:
Okay. So do you agree that in making your police statement, you remembered things occurring in a different order?
COMPLAINANT:
Yes.
DEFENCE COUNSEL:
And is that something that we can understand as an effect of your fragmentary memory and the possibility that you’ve remembered things out of sequence?
COMPLAINANT:
At that moment of making the statement?
DEFENCE COUNSEL:
No, I’m talking about in your evidence in this court?
COMPLAINANT:
Oh just now.
DEFENCE COUNSEL:
Yes?
COMPLAINANT:
I think I did have fragmented memory, but I think the context and the content is all the same.
DEFENCE COUNSEL:
So you say that all those things occurred, but do you accept that because of the state of your memory, you can’t be sure about the sequence of events?
COMPLAINANT:
Yes.
Further, as is apparent from the passage reproduced above of the complainant’s evidence in relation to charge 7 (introducing his penis into her mouth), there was also chronological uncertainty about this event. The complainant remembered this happening ‘at some point’. She could not say if it occurred before the first instance of him introducing his penis into her vagina, but did say that it ‘would have’ been in between attempts of putting his penis inside her vagina.
More generally, during cross-examination, the complainant accepted that her memory of the events in the bedroom was ‘fragmentary’. She agreed that there were periods where she did not remember what was happening because she was ‘in and out of sleep at [the] time’. When asked if she agreed that her memory of events was ‘blurry and indistinct’, she said that her memory of events was ‘blurry in the sense that [she did not] know what happened first or last or in between’. She denied that the acts themselves were blurry. However, she said that, in her view, ‘the context and the content [was] all the same’.
(d)Sending of the message to her partner
The complainant also gave evidence that, ‘in the middle of what was happening’, she sent a message to her partner where she told him ‘I honestly think I’m being raped RN [right now]’. That message was sent at 4:54 am. When asked what she meant by the word ‘raped’, the complainant said that she was referring to ‘[the applicant] putting his penis inside [her] vagina a few times’.
(e)Taking of the photograph
In her evidence, the complainant said that she saw a flash, which she attributed to the taking of a photograph.
(f)The alleged admissions
At 12:09 pm on 26 July 2019, the applicant sent the complainant a WhatsApp message asking if she was ‘[f]eeling okay’. The complainant responded at 11:18 pm. Her message read:
No I’m not feeling okay. what you did last night was not on. I said no and pushed you off so many times. you saw how drunk I was, and you basically took advantage of that. I feel really violated tbh [to be honest]. Did you also take a photo of me last night because I remember seeing a flash. If you did, please delete it.
Yeah I really dont know what you were thinking and I feel really uncomfortable about it all.
The applicant responded to the complainant’s message at 9:22 am on 27 July 2019, stating:
Hey, thanks for messaging. That’s why I called you yesterday, I wanted to apologise, I am so sorry. It was totally wrong and unacceptable. I’m so sorry you’re feeling like this, and I’m uncomfortable about it too. Let me know if/when you’d like to chat more? Phone or in person? The respect and that that I have for you is so high, and to think that that has been damaged both ways is terrible. Also, no photo, I did turn it on though as a flashlight instead of turning the lights on, to grab my shirt and move down to the bed on the floor, which I got out because I knew what was happening wasn’t to continue.[13] Let me know if there’s anything you’d like me to do…can have a further chat too.
[13]As will become relevant with respect to the application for leave to appeal against sentence, the applicant did in fact take two photographs of the complainant. The first photograph depicted the complainant’s naked torso and vagina with the applicant’s naked thigh against her body and his penis in close proximity to her. The second depicted the complainant wearing only black underwear on the applicant’s bed, seemingly asleep. The applicant deleted both photographs. They were later recovered by police after analysis of his mobile phone.
The complainant did not reply.
At 8:14 pm on 28 July 2019, the applicant sent the complainant a further message. The message read:
Hey [Bianca], how was your weekend? Just wanted to reiterate what I said before, and that I’m sure you’re feeling angry and betrayed. I’ve barely slept all weekend because what happened just so wasn’t me. I was so drunk and not in control, and that really scared me. I’m not sure what to do, but it’s given me a real cause to think about my life and everything. You didn’t deserve any of that, as a friend, I’m meant to support and look after you, and I didn’t do that. I’ve betrayed myself as well, not just you. Anyway, I’m here to be as cooperative and open as you need me to be, so let me know how you are or if you have anything else you want to say or ask or anything?
The prosecution relied on the messages as an admission by the applicant that he engaged in non-consensual sexual activity with the complainant.
(2)The complaint evidence
The prosecution relied on a body of complaint evidence.
The complainant’s sister gave evidence that the complainant attended her house on Friday, 26 July 2019, to tell her that she had been raped by the applicant.
The complainant’s partner gave evidence that on Saturday, 27 July 2019, the complainant went to his house in the afternoon to discuss the message she had sent him the day before (‘I think I am being raped RN’). During that discussion, the complainant told him that she had been raped by the applicant; that he had engaged in penile-vaginal, digital-vaginal, and oral-vaginal penetrations.
The complainant’s work supervisor (who was present at the dinner on 25 July 2019) gave evidence that on the following Monday the complainant disclosed to her what occurred. In particular, the complainant told her supervisor that the applicant penetrated her more than once.
The complainant then met with a human resources representative (with the complainant’s supervisor also being present). This witness gave evidence that the complainant told her that the applicant had sexually penetrated her. The complainant told her that she (the complainant) had told the applicant not to do so. The human resources representative advised the complainant to report the matter to police.
(3)The record of interview
The applicant participated in a detailed record of interview (which was tendered as part of the prosecution case).
The applicant admitted that he engaged in some sexual activity with the complainant but said it was consensual. It was initiated by the complainant. While he was tidying up the house, he said that the complainant went into his bedroom and took off her shirt and bra. They became intimate, with the applicant ‘going down on’ the complainant — that is, he orally penetrated her vagina. He said that the complainant was breathing heavily, which indicated to him that he was ‘doing the right thing’.
After a short period of oral penetration, the complainant said ‘What are you doing? You’re my boss’. In response, he said ‘It’s no big deal that I’m your boss’, the complainant ‘giggled’, and he continued. About 10 seconds later, the complainant asked him to stop. He did.
There was no further sexual activity between them, although they did share the bed for part of the night and were at times ‘spooning’. Their naked bodies were close and the applicant was touching her, including on her breasts and crotch-region.
The applicant denied that he engaged in the sexual activity the subject of charges 1 to 4 and 6 to 7. He denied that he penetrated her vagina with his penis.
As to her state of intoxication, the applicant said that he perceived the complainant to be ‘tipsy’ but was ‘mentally compos[ed]’, was not ‘slurring’, and did not have difficulty standing or walking. He thought that the complainant’s vomiting was triggered by the smell of tobacco smoke (which is something that he had observed her do in the past).
Finally, the applicant gave an explanation for the text messages that he sent to the complainant (reproduced above), which the prosecution relied upon as evidence of admissions. He said that he acknowledged the way the complainant was feeling because ‘whether it happened or not or whatever is kind of beyond the point’. He said that ‘if someone feels violated and feels uncomfortable that’s not good’. He wanted his message to address the complainant’s feelings rather than ‘poke holes in what she [was] saying’. He was intending to be ‘caring and supportive to how she [was] feeling’ so they could ‘work through [it] as friends’.
PART C:THE PARTIES’ CASES AT TRIAL
(1)The prosecution case at trial
The prosecution alleged that the entire sexual encounter between the complainant and the applicant was non-consensual. It contended that each sexual act occurred in circumstances where the applicant did not have a reasonable belief in consent.
The prosecution said that the complainant went to the applicant’s home, without protest or question, because she regarded him as a friend and thought that he was going to take care of her. The essence of the prosecution case was that the applicant then took advantage of the complainant’s vulnerable state, which was predominately said to arise from her intoxication.
The prosecution contended that, at the time of the charged acts, the complainant was intoxicated, exhausted, and, in some instances, asleep or unconscious. In addition to the complainant’s direct evidence that she did not consent to any of the sexual acts, the prosecution case on consent was put to the jury on three bases:
•the complainant was so affected by alcohol as to be incapable of consenting;
•the complainant’s expressions of resistance or protest (verbal and physical); or
•the complainant was asleep or unconscious, and therefore incapable of providing consent.
The prosecution also relied upon these factors in combination.
The prosecution further contended that the applicant was aware of each of the above matters, which, in turn, meant that he could not have held a reasonable belief in consent.
It alleged that the applicant persisted in the face of the complainant’s verbal and physical protestations.
In support of its argument that the complainant was a credible and reliable witness, the prosecution pointed to the photographs of the complainant taken by the applicant, the applicant’s admissions, statements made by the applicant in his record of interview[14] and the Uber records.[15]
[14]In his record of interview, the applicant made statements that were broadly supportive of certain aspects of the complainant’s account. For example, he said that he pulled her pants down; and he said that she told him ‘No, you’re my boss’.
[15]The prosecution argued that the Uber records supported the complainants’ account that the destination was changed during the journey, rather than the applicant’s account that the complainant order the Uber to his address before they entered the vehicle.
The prosecution also relied on the body of complaint evidence and the complainant’s decision to purchase the morning after pill. This evidence was relevant to the consistency of the complainant’s account, as well as to an assessment of the genuineness of her assertion that the applicant penetrated her vagina with his penis (which the applicant denied).
(2)The defence case at trial
The applicant’s case at trial was, in large part, based on his record of interview.
The applicant’s case was that while the complainant was intoxicated, she was not intoxicated to the point of incapacity. The defence case placed reliance upon a number of factors including how much alcohol the complainant consumed; the complainant’s drinking habits more generally; her apparent lucidity throughout the evening and the nature of her movements as depicted on CCTV footage; and her colleagues’ perceptions of her at the bar — she was coherent, she was aware of what was going on, and she seemed ‘tipsy’ (as opposed to heavily intoxicated).
While the applicant did not challenge the complainant’s credibility (it accepted that the complainant was an honest witness), the applicant’s case was that the complainant was unreliable.
To that end, the defence emphasised the complainant’s own evidence that her memory was fragmented, and blurry, and that she was in and out of sleep. The defence argued that, owing to her state, and as a matter of ‘common sense’, the jury could not be satisfied that the complainant was able to distinguish the real from the imagined. It was suggested that the complainant may not have felt the things she thought she felt, bearing in mind her evidence that she was in a state of ‘unconsciousness to the point where [she] was dreaming’.
In support of this hypothesis, defence counsel referred to the applicant’s statement in his record of interview that, following the consensual sexual activity, the applicant ‘spooned’ the complainant. It was suggested that the physical proximity between the pair may have added to the complainant’s mistaken (and false) perceptions about what occurred.
Additionally, the applicant argued that her evidence about the sexual acts did not contain ‘the level of compelling and comprehensive detail’ that would reassure the jury that the evidence supporting each charge was reliable.
In the light of these matters, the applicant’s trial counsel suggested that the jury could not be satisfied of the complainant’s account, because:
[S]he just cannot and does not know what happened in the bedroom that night and what was a true perception and what was a product of her state of confusion in those periods of half consciousness or half sleep.
PART D:APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
There are two proposed grounds of appeal against conviction:
Ground 1: The verdict on charge 6 was bad for uncertainty or latent duplicity.
Ground 2:The verdicts on charge 1 and charge 6 were unreasonable or cannot be supported having regard to the evidence.
(1)Ground 1: The verdict on charge 6 was bad for uncertainty or latent duplicity
(a)The applicant’s submissions
Under ground 1, the applicant argues that the verdict on charge 6 was bad for uncertainty or latent duplicity. It became apparent at the hearing of this application that the real focus of the applicant’s argument was on latent duplicity. We will address the ground accordingly.
The applicant fastens upon the complainant’s evidence that on ‘maybe five plus times’ throughout the early morning she was awoken by feeling the applicant’s penis inside her vagina.
The applicant principally contended that this evidence founded charge 6.
Charge 6 therefore alleged multiple penile-vaginal penetrations, and thus multiple offences.
This, the applicant argues, rendered charge 6 latently duplicitous. The elemental act underlying the conviction was necessarily uncertain.
He further contends that this gave rise to demonstrated prejudice. Because the various acts of penile-vaginal penetration were ‘pooled’ together, there was a real risk that the jury would reason impermissibly that penile-vaginal penetration must have occurred at least once.
The applicant accepts that the rule against latent duplicity is subject to certain exceptions. However, he says that no exception applies in this case. Specifically, he submits that:
•there was nothing in the evidence which identified a ‘first occasion’;
•there was nothing in the evidence that differentiated the circumstances of any particular occasion from other similar occasions when the applicant allegedly penetrated the complainant’s vagina with his penis while she was asleep; and
•the penile-vaginal penetrations allegedly perpetrated when the complainant was asleep were temporally disconnected and constituted separate offences.
Finally, the applicant submits that, in cases like the present, where the prosecution seeks to charge continuing sexual offending under a single charge, the proper charging practice would be for the prosecution to prefer a course of conduct charge. The applicant suggests that Parliament introduced course of conduct charges to overcome the very issue that arose in this case.
(b)The respondent’s submissions
The respondent rejected the contention that charge 6 was latently duplicitous. The respondent argued that the prosecutor closed the case on charge 6 in a way that engaged at least one exception to the rule against latent duplicity. The respondent argued that:
•charge 6 was, in reality, a single episode of offending; or
•in the alternative, the prosecutor closed the case on charge 6 consistently with the ‘first occasion’ method of particularisation.
With respect to the applicant’s argument about the availability of a course of conduct charge, the respondent simply points out that a course of conduct charge is but one method to address latent duplicity; it does not cover the field and does not exclude the operation of other well-established exceptions (such as the ‘first occasion’ method of particularisation).
Finally, the respondent argued that the applicant has failed to identify any unfairness or prejudice. Thus, it could not be said that the inadequate pleading gave rise to a substantial miscarriage of justice.
(c)The legal framework
The principles governing duplicity are well-established.
The rule against duplicity precludes the prosecution alleging two or more offences in a single charge on an indictment.[16]
[16]Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26.
The rule applies to both patent and latent duplicity:[17]
•Patent duplicity is a matter of form, not evidence. If, upon a fair reading of a charge, it alleges the commission of two or more separate offences, the charge would be patently duplicitous.[18]
•Latent duplicity will arise where the prosecution relies on a number of discrete acts and any one of them would entitle the jury to convict. It is latent ‘in the sense that it does not appear on the face of the indictment or complaint’.[19]
[17]See, eg, McDonald v Higgins (2013) 227 A Crim R 130, 136 [24]–[26] (Edelman J); [2013] WASC 61.
[18]Rixon v Thompson (2009) 22 VR 323, 339 [85]; [2009] VSCA 84. In Rixon, the Court observed that the charge would be patently duplicitous on a ‘prima facie’ basis. The Court used the term ‘prima facie’ to make it clear that ‘even an apparently duplicitous charge will not fall foul of the rule if one of the recognised exceptions to the rule is made out’.
[19]PDI v The Queen (2011) 216 A Crim R 577, 580–581 [11]; [2011] VSCA 446.
Where latent duplicity arises, it is incumbent on the prosecution to identify the specific act or transaction on which it relies to establish the offence charged. That is, the prosecution will be put to an election.[20]
[20]Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J); [1937] HCA 77.
It is useful to recall the reasons why the law does not tolerate or countenance latent duplicity. As Redlich JA observed in PPP v The Queen,[21] ‘the rule against duplicitous counts rests upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.’[22] The rule exists to ‘ensure that the accused knows the “particular act, matter or thing alleged as the foundation of the charge”.’[23] His Honour identified seven reasons why the law insists on proper particularisation:
(1)to enable the accused to exercise the right to object to evidence on the ground of relevance;
(2) to permit the accused to know how the charge might be answered;
(3)to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;
(4)to enable the trial judge to instruct the jury properly as to the law to be applied;
(5)to ensure that there is a unanimity of view by the jury as to a specific act by the accused;
(6)in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;
(7)to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.[24]
[21](2010) 27 VR 68; [2010] VSCA 110.
[22]PPP v The Queen (2010) 27 VR 68, 81 [43] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
[23]PPP v The Queen (2010) 27 VR 68, 81 [43] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
[24]PPP v The Queen (2010) 27 VR 68, 80–81 [42] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
There are recognised means by which possible latent ambiguity might be redressed. Sometimes these are referred to as ‘exceptions’ to the rule against latent duplicity.
One exception can conveniently be referred to as the ‘first or other occasion’ exception. The prosecution nominates the ‘first occasion’ within a specified period of time to distinguish between the act — the subject of the charge — from the other acts of the same nature. This may not be an exception per se but, rather, an example of the prosecution making an election to rely upon a specific occasion of wrongdoing, to the exclusion of other occasions of similar wrongdoing.
This Court has long recognised the practice of alleging the ‘first occasion’ in cases involving multiple instances of sexual offending as a pleading device to avoid potential problems of uncertainty and latent duplicity[25] However, in order to overcome the problem of latent duplicity, the existence of the ‘first occasion’ must be actual and evidence based rather than merely notional.[26]
[25]PPP v The Queen (2010) 27 VR 68, 80 [41] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110; Pate (a pseudonym) v The Queen [2019] VSCA 170, 15–16 [41] (Priest JA, Niall JA agreeing at 30 [93]).
[26]PPP v The Queen (2010) 27 VR 68, 86 [61] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110; Pate (a pseudonym) v The Queen [2019] VSCA 170, 15–16 [41] (Priest JA, Niall JA agreeing at 30 [93]).
Another exception is typically referred to as the ‘single transaction’ exception and the ‘continuing offence’ exception. Kirby J described this in the following terms in Walsh v Tattersall:[27]
This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges.[28]
[27](1996) 188 CLR 77; [1996] HCA 26.
[28]Walsh v Tattersall (1996) 188 CLR 77, 112 (Kirby J); [1996] HCA 26.
Technically, separate acts of penetration or assault may constitute a single episode and be the subject of a single charge. This is an area where common sense and practicality have a role to play. It has been said by this Court that ‘whether a charge encompasses a single criminal activity, or a series of separate offences, is regarded as one of fact and degree’.[29]
[29]Rixon v Thompson (2009) 22 VR 323, 337 [73]; [2009] VSCA 84; PDI v The Queen (2011) 216 A Crim R 577, 584 [29]; [2011] VSCA 446. See also R v Heaney (2009) 22 VR 164, 179–182 [48]–[53] (Ashley JA); [2009] VSCA 74.
As Kirby J held in Walsh v Tattersall,[30] the factors might include:
(a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion.[31]
[30](1996) 188 CLR 77; [1996] HCA 26.
[31]Walsh v Tattersall (1996) 188 CLR 77, 108 (Kirby J); [1996] HCA 26.
In DPP v Merriman,[32] Lord Morris of Borth-y-Gest said:
If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. … I agree respectfully with Lord Widgery CJ [in Jemmison v Priddle [1972] 1 QB 489] that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances.[33]
[32][1973] AC 584.
[33][1973] AC 584, 593.
Similarly, in R v Morrow and Flynn,[34] Connolly J (Macrossan CJ and Kelly SPJ agreeing) referred to Lord Morris’ decision and made the following observations:
It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings but one must ask oneself whether this would be an application of common sense in the terms of Lord Morris’ speech. For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are not seen to be separate and distinct in time or circumstance. The first penetration may be interrupted by the victim’s struggles or by a momentary apprehension of detection. It would of course be open in strict point of law to charge each penetration as a separate offence but scarcely consistent with the robust approach suggested by Lord Morris. In such a case I see no objection to charging one count of rape.[35]
[34][1991] 2 Qd R 309.
[35][1991] 2 Qd R 309, 312 (emphasised added).
Both Merriman and Morrow and Flynn have been endorsed by this Court, including in PDI v The Queen.[36]
[36](2011) 216 A Crim R 577; [2011] VSCA 446.
A single charge representing technically separate penetrative acts is more likely to be regarded as a single episode (and thus not duplicitous) where there is no realistic possibility that different defences could apply to each act, and where there is otherwise no rational basis upon which jurors could discriminate between the acts, convicting the accused on some, but not others.[37]
[37]R v Khouzame (1999) 108 A Crim R 179, 185 [89] (Kirby J, Ireland J agreeing at 171 [1], Bell J agreeing at 188 [107); [1999] NSWCCA 173.
As the passage cited above shows, much will depend upon the relationship of time, place and circumstance between the multiple acts, the live issues in the trial, and whether the single charge presents actual unfairness to an accused in the conduct of their defence.[38]
(d)Analysis
(i)Charge 6 was founded on ‘first occasion’
[38]Walsh v Tattersall (1996) 188 CLR 77, 110 (Kirby J); [1996] HCA 26; PPP v The Queen (2010) 27 VR 68, 86–90 [62]–[75] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
Two charges were founded on the applicant’s penetration of the complainant’s vagina with his penis: charge 3 and charge 6.
On the indictment the particulars for charge 6 read:
Particulars: this is a separate occasion to charge 3 and occurred after charge 3
As we have observed above, immediately after having described the penile-vaginal penetration which forms the basis of charge 3, evidence relevant to charge 6 was elicited from the complainant:
PROSECUTOR:
And what did he do next?
COMPLAINANT:
He – I don’t know where he went at that point, but I remember falling asleep after that and being woken – woken up – woken up again to the same thing.
PROSECUTOR:
When you say the same thing, what did you feel or see happen?
COMPLAINANT:
I felt his penis go into my vagina again. And that woke me up. And I pushed him off again when it happened, or when I felt it.
The effect of the complainant’s evidence was that this penetration (which occurred when she was asleep) was the second penile-vaginal penetration that morning, and that this happened after the penetration the subject of charge 3 (which occurred when she was awake).
The trial participants treated the evidence in this manner. The questioning of the prosecutor, which followed the giving of this evidence, was premised upon the basis that this was ‘a second’ penetration or ‘the second’ penetration. The complainant acquiesced in this proposition on multiple occasions. No objection was taken to the form of this questioning. We infer that all trial participants understood that this was indeed the effect of the complainant’s evidence.
The prosecutor then questioned the complainant about the sequence of some of the sexual activity. During that questioning, the complainant indicated that the applicant had engaged in ‘attempts’ (i.e. plural) of putting his penis into her vagina. The following exchange then occurred:
PROSECUTOR:
How many times did he put his penis inside your vagina?
COMPLAINANT:
I would say I got woken up maybe five plus times. I can’t say a specific number, but I remember waking up multiple times over that night.
The import of the complainant’s evidence is that the second penile-vaginal penetration that occurred that morning (that is, the next penetrative act that occurred after charge 3) was the first of the series of penetrations which happened when she was asleep.[39]
[39]For ease of comprehension, we shall hereafter refer to the penile-vaginal penetrations which took place while she was asleep as the sleep penetrations.
It is true that the complainant did give evidence by way of a composite summary, of a series of sleep penetrations (when she talked about it happening ‘maybe five plus’ times).
But the complainant had already detailed her memory of the second penile-vaginal penetration (being the first of the sleep penetrations). In our view, she distinguished this penetration from both the penetration which occurred when she was awake (charge 3) and from the subsequent sleep penetrations.
In conformity with this evidence, in her closing address, the prosecutor said (emphasis added):
Charge 6, and this is the one where I asked her, and this is after he’d put the fingers in the vagina … I just read this out to you. “I felt his penis go into my vagina again” … “That woke me up and I pushed him off again when it happened or when I felt it”. That’s Charge 6.
She actually says, and this is at p78. “I got woken up five plus times” and she said – and that was at line 11 on p78. And she says in response to my question “are you indicating that it was five times that his penis was in your vagina, and you awoke? Or what are you saying as to the question of how many times you recall his penis being in your vagina on different occasions that night?” and you’ll recall that she had said “she … was trying [to] put his penis in my vagina”. She says “I remember feeling it inside my vagina like five times”.
There’s two charges before you. He tried multiple times to put his penis in the vagina. She refers clearly to two occasions where his penis went in the vagina and the prosecution says you’ll have no difficulty finding those charges proved beyond reasonable doubt.
In her charge, the trial judge introduced the topic of the evidential foundation of each charge in the following manner:
Members of the jury, before I go to the elements, it is important to recap the evidence, the evidence of the charges themselves before I direct you on the elements of the charges. So let me begin with a summary of the evidence which is the basis of the charges.
In relation to charge 6 she said (emphasis added):
She said he spread her legs and put his penis into her vagina and he was on top of her facing down on her. That is the first incident of penile penetration and that is Charge 3 on your indictment.
She says she fell asleep to be woken by him penetrating her vagina with his penis again. So that is the second charge of penile penetration. That is Charge 6.
A little later, the judge summarised the complainant’s evidence about the other sleep penetrations but did not tie this to any charge:
She said he kept trying to put his penis in her vagina, maybe five times, over the course of the night.
In our view, the conduct the subject of charge 6 was sufficiently clear. It was the second instance of penile-vaginal penetration (after the charge 3 instance) and the first of the sleep penetrations.
It is notable that the applicant’s trial counsel took no exception and raised no concerns about the approach taken by the prosecutor in her address or by the trial judge in her charge. This suggests to us that there was likely no misunderstanding between the parties as to which act formed the basis of charge 6. Trial counsel’s silence would also suggest that he did not perceive any unfairness for the applicant arising from this approach.[40]
[40]This common understanding extended to the plea and sentence. In relation to charge 6, the applicant was sentenced upon the basis of a single penetration being the second occasion on which vaginal-penile penetration occurred that night and the first of the sleep penetrations.
We allow for the fact that the manner in which charge 6 was framed was less clear in the Amended Summary of Prosecution Opening.[41] This is unfortunate. However, this ambiguity was remedied by the manner in which the trial was conducted.
[41]This relevant paragraph read as follows: ‘After this the accused tried to have sex with her again during the night while she was sleeping and dozing off. Every time she felt his penis in her vagina she tried to pushed (sic) him off. (Charge 6 – Rape Penis into Vagina – separate occasion to charge 3). He put his penis in her vagina more than twice (refer Charge 3). Every time he did this it would wake her up and she would push him off with her hands’.
The applicant’s argument that this instance of sleep penetration was not differentiated from the other identical sleep penetrations must be rejected. Although there was nothing distinctive about the act itself, which distinguished it from the other like instances of sleep penetration, it was sufficiently tied down to one instance. This was achieved by tying it to the numerical place the act charged occupied in this series of instances (being the first of the series of sleep penetrations).[42] It was also tethered to other surrounding circumstances, it being the second penile-vaginal penetration which occurred that morning (after the conduct the subject of charge 3).
[42]PPP v The Queen (2010) 27 VR 68, 89 [46] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
It also seems to us that the complainant had a significant level of recall of this instance. She recounted a distinct penetration. It was not evidence of a composite account. This is not a case where the evidence of the first instance was notional rather than actual.[43]
[43]See, eg, R v DWB (2008) 20 VR 112; [2008] VSCA 223.
There was therefore no requirement for any further details which objectively distinguished that first instance from the other sleep penetrations. As Redlich JA said in PPP, ‘the particular of the offence as being the “first occasion” will generally be sufficient if the complainant is able to recall the first occasion and give evidence to that effect.’[44]
[44]PPP v The Queen (2010) 27 VR 68, 89 [46] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
The nomination of the first occasion is usually employed to address latent duplicity ‘where the same offences are committed against the same person with great frequency over a lengthy period in the same manner and circumstances’.[45] We can see no reason in principle why it cannot be deployed in more confined circumstances, such as those in this case. The real question is whether it avoids latent duplicity by sufficiently selecting the first instance to the exclusion of the others. This occurred here.
[45]PPP v The Queen (2010) 27 VR 68, 80 [41]; (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
Charge 6 was thus founded upon a single act of penetration. It was sufficiently clear that this was the ‘particular act, matter or thing alleged as the foundation’ of this charge.[46]
[46]On the ‘first occasion’ particularisation approach, the subsequent sleep penetrations were effectively left as uncharged acts.
The applicant has also not demonstrated any unfairness or prejudice in the conduct of his defence by reason of this particularisation. We discuss this issue separately below.
In our view, latent duplicity was avoided.
The conclusions that we have reached are sufficient for us to dispose of ground 1.
That all said, even if the first instance of sleep penetrations was insufficiently differentiated, and charge 6 was effectively left upon the basis that it embraced the ‘maybe five plus’ sleep penetrations, we still think latent duplicity would not have arisen. Although it was open for the prosecution to elect to rely upon the first instance of sleep penetration, we consider that in this case it was not strictly necessary to do this to avoid latent duplicity. We now turn to discuss this.
(ii)If charge 6 founded upon multiple acts as a ‘single activity’
Had the prosecution taken charge 6 to the jury on the basis that it was founded upon the ‘maybe five plus’ acts of sleep penetration, then it would follow that a number of technically separate acts of penetration would have been charged under the umbrella of a single offence. This approach would fall foul of the rule against latent duplicity unless it qualified under one of the exceptions to the rule.
In our view, there is real force in the proposition that the sleep penetrations formed part of the one sexual episode and, therefore, could have been charged as a single offence under the single activity (i.e. single transaction) exception to the rule against latent duplicity.
We make the following observations about the relationship between each of these acts:
•The legal character of the offence for each act was identical — penile-vaginal penetration (rape).
•The factual character of each offence was the same — penetrations whilst the complainant was asleep.
•The sleep penetrations all occurred in one location — the applicant’s bed.
•The sleep penetrations all occurred during a confined — indeed single — period of time (a few hours during the morning of 26 July 2019). While there is some uncertainty about the exact timeframe, they all occurred within a few hours.
•On the allegations, the complainant did not consent to any of the acts of sleep penetration, and the applicant could not have held a reasonable belief in her consent. The non-consent circumstance of sleep applied throughout. It follows that, on the allegations, there was a lack of consent and a lack of reasonable belief in consent from the first moment of sleep penetration to the last.
•In short the sleep penetrations occurred over the course of the one continuing state of affairs; while the complainant was in the applicant’s bed, at moments when she was asleep (and not consenting) .
As to the conduct of the defence case, and the issue in the trial in relation to the sleep penetration activity:
•The defence was the same: none of the penetrations — including the sleep penetrations — happened. The complainant ‘dreamt’ them all up.[47]
•The central issue across all the sleep penetrations was thus the same — did they happen?
[47]The applicant was also able to provide a context to his defence: there was other more limited sexual activity, but this was consensual. The applicant was able to fully challenge the complainant’s account at trial, with his own version of events.
The uniformity of the allegations, the defence, and the issues, meant that there was no basis upon which a jury might rationally discriminate between any of the technically separate acts of sleep penetration. It is correct that there is some uncertainty as to the time which passed between each sleep penetration. It is also unclear as to whether any other sexual acts occurred in between these penetrations. Even so, there was no apparent intervening act which might have demanded that the individual sleep penetrations be separated into distinct charges to enable the applicant to fairly answer the charge.
We return to Connolly J’s observation in, R v Morrow and Flynn,[48] that
[a] series of penetrations by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are not seen to be separate and distinct in time or circumstance. [49]
[48][1991] 2 Qd R 309.
[49][1991] 2 Qd R 309, 312 (emphasised added).
Adopting those words, we do not think the sleep penetrations can be ‘seen to be separate and distinct in time or circumstance.’
In our view, the applicant’s repeated penetrations of the complainant could properly be characterised as the applicant engaging in the one episode of sexual activity. These acts could be viewed as being part of an unbroken sequence of sexual activity which occurred on the one occasion.[50] Had charge 6 been founded upon the repeated sleep penetrations as constituting a single criminal activity, such an approach would have been permissible.[51]
(iii)There was no prejudice or unfairness
[50]Tognoliniv The Queen (2011) 32 VR 104, 110 [23]; [2011] VSCA 113.
[51]An example of where the evidence or issues demanded that the acts be separated into different charges — even though they occurred during the same episode — is revealed by a comparison of charge 3 and charge 6 in this case. Both involved penile-vaginal penetration. The issues on those charges were in one material respect very different. On the evidence supporting charge 3, the complainant was awake at penetration; by contrast, on the evidence concerning charge 6, she was asleep. On the evidence, the non-consent circumstance of sleep thus applied to charge 6 but not to charge 3. This raised a different issue for the jury’s consideration on the question of consent and the applicant’s reasonable belief in consent. It allowed for the possibility of different verdicts. It follows that the penile-vaginal penetrations covered by charge 3 and charge 6 could not have been properly captured by a single charge and would have raised latent duplicity.
The rule against duplicity — and its exceptions — rest upon ‘basic considerations of fairness’.[52] Where an accused is unable to establish demonstrated prejudice or unfairness by reason of the manner of particularisation, an inference can be drawn that the particularity was sufficient to allow the accused to answer the charge.[53]
[52]S v The Queen (1989) 168 CLR 266, 285 (Gaudron and McHugh JJ); [1989] HCA 66.
[53]PPP v The Queen (2010) 27 VR 68, 86–88 [62]–[66] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]).
The question on appeal is whether the exposure of a possible latent defect suggests a risk that the accused may not have had a fair trial.[54] This involves a consideration of the accused’s case at trial.[55] As Redlich JA said in PPP v The Queen, ‘[in] the absence of demonstrated prejudice, to require some further distinguishing feature, would reduce the law to absurdity and would bring the administration of justice into disrepute’.[56]
[54]Walsh v Tattersall (1996) 188 CLR 77, 110 (Kirby J); [1996] HCA 26; PPP v The Queen (2010) 27 VR 68, 86–87 [62], 89 [74] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
[55]Walsh v Tattersall (1996) 188 CLR 77, 110 (Kirby J); [1996] HCA 26; PPP v The Queen (2010) 27 VR 68, 86–87 [62] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
[56]PPP v The Queen (2010) 27 VR 68, 89 [73] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]), citing S v The Queen (1989) 168 CLR 266, 284–285 (Gaudron and McHugh JJ); [2010] VSCA 110.
Having regard to the purpose of the rule against duplicitous counts as summarised by Redlich JA in PPP, we do not think that the applicant has demonstrated prejudice. That is so, whether charge 6 was left to the jury as being confined to the first instance of sleep penetration, or whether it was left by the prosecution upon the footing that the ‘maybe five plus’ sleep penetrations constituted a single activity and a single offence.
It is not disputed that the applicant was in the company of the complainant in the applicant’s bedroom at the time the sexual acts are alleged to have occurred.[57] He was ‘not denied the opportunity to call alibi evidence or to test the complainant’s credit by reference to contemporaneous events’.[58] The applicant was in a position to provide his account of what occurred with the complainant on this one occasion. He was able to comprehensively test the complainant’s reliability.
[57]This is significant. See PPP v The Queen (2010) 27 VR 68, 89 [73] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
[58]PPP v The Queen (2010) 27 VR 68, 87 [64] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]).
His defence was the same: no sleep penetrations occurred. There is no suggestion that with more or different particularisation the applicant might have been able to mount a more cogent defence or a different defence from that which he conducted.[59] In short, irrespective of how it was particularised, it was ‘not such to actually disable [the applicant] from meeting the charge’.[60]
[59]PPP v The Queen (2010) 27 VR 68, 87 [64] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]), citing R v Rogers [1998] QCA 83 (Davies JA); [2010] VSCA 110.
[60]PPP v The Queen (2010) 27 VR 68, 86–87 [62] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
In the circumstances of this case, there would have been no more than a mere ‘theoretical possibility that more specific particularity of the occasion charged would advance the ability of the [applicant] to answer the charge’.[61]
[61]PPP v The Queen (2010) 27 VR 68, 89 [73] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
We would add that given the state of the evidence from the complainant, it would also have been very difficult — if not impossible — for the prosecution to distinguish the discrete sleep penetrations by a unique or distinctive feature (apart from detailing the ‘first instance’). Certainly, given the generalised state of her evidence, it is unlikely she could have differentiated or dissected one act from the other. The complainant was even uncertain about the total number of sleep penetrations which occurred.[62]
[62]Increasing the number of charges would also have brought its own set of disadvantages. Pleading unnecessary counts by dissecting every penetration within a single episode can itself be oppressive and unfair and add to the complexity of trials. Andrew v The Queen [2013] VSCA 333, 12–13 [51]–[56] (Weinberg JA); R v Khouzame (1999) 108 A Crim R 179, 180 [63]–[65] (Kirby J, Ireland J agreeing at 171 [1], Bell J agreeing at 188 [107); [1999] NSWCCA 173.
If the applicant’s arguments were to be accepted, neither the ‘first occasion’ nor ‘single activity’ methods could be used to avoid latent duplicity. For reasons which we will come to, we also think that a course of conduct charge was not available.
Under this state of affairs the applicant could escape prosecution (and possible criminal liability) despite the complainant giving clear and cogent evidence of penile-vaginal penetration whilst asleep (and without her consent) and despite the applicant not disputing that he was in her company at this time. In our view, such an approach to particularisation ‘would reduce the law to absurdity and would bring the administration of justice into disrepute’.[63]
(iv)The applicant’s ‘compounding prejudice’ argument
[63]PPP v The Queen (2010) 27 VR 68, 89 [73] (Redlich JA, Neave JA agreeing at 70–71 [1]–[2], Lasry AJA agreeing at 91 [80]); [2010] VSCA 110.
The applicant argues that the prosecution effectively ‘pooled’ multiple separate acts of wrongdoing under charge 6. This, the applicant contends, gave rise to the risk that the jury would ‘compound them together’ rather than being satisfied of any individual act. They might have been seduced, according to the applicant, into reasoning from the sheer weight of the multiplicity of indistinguishable allegations that ‘it must have happened once’.
In the first place, we have found that the prosecution elected to rely upon the first instance of the sleep penetrations. There has not been any ‘pooling’.
In any event, we think the risk that the jury might ‘compound’, ‘conflate’ or somehow misuse the sleep penetration allegations is highly artificial in the circumstances of this case.
We do not think that the jury may have been swayed by the number of indistinguishable sleep allegations. The prosecution case on charge 6 (whichever method of particularisation was employed) was straightforward and contained; there was minimal risk of the jury being overwhelmed:
•The overall case was factually confined: as we have outlined above, it effectively involved a single episode of sexual offending on the one occasion by a single complainant. The scope of the sleep penetration allegations was narrower still.
•The number of alleged instances of sleep penetration was small (some five plus times). This is to be compared with cases involving dozens of charged and uncharged acts across a prolonged period which might invite confusion and compromise.
This ground must be dismissed.
PART E:APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
There are two proposed grounds of appeal against sentence:
Ground 1: The sentence imposed on summary charge 9 was manifestly excessive.
Ground 2:There was an error in the sentence first imposed on summary charge 9 arising from the applicant having been sentenced on the wrong factual basis.
(1)The sentence
At the plea hearing on 16 May 2023, the applicant entered a guilty plea to one related summary charge of using an optical surveillance device to record visually or observe a private activity to which the applicant was not a party, without consent. This has been referred to as summary charge 9.
The judge took into account the applicant’s personal circumstances. He grew up in a stable and loving home and had been successful, both academically and in his later work life. He had no prior criminal history and continued support from family, friends and his partner. The judge accepted the applicant was a ‘decent and community minded individual before this offending’. This conduct was assessed as a ‘one-off, albeit extremely serious lapse of judgement and conduct in what otherwise [had] been a good and productive life’.
The judge accepted the offending was objectively serious and the applicant’s moral culpability was considered high. The applicant took advantage of the complainant, his friend and colleague, when she was sick and vulnerable. The judge acknowledged the significant and long-lasting effect on the complainant as outlined in her victim impact statement. The judge concluded the applicant had shown no remorse or insight into his behaviour. However, her Honour assessed his prospects of rehabilitation to be good.
The judge accepted the offending was opportunistic rather than predatory. It occurred over a period of time where the complainant was intoxicated and slipping in and out of consciousness, clearly saying ‘no’ and trying to resist.
With reference to the sexually explicit photograph (or photographs) the subject of summary charge 9, the judge remarked:
After you raped her, you took sexually explicit photographs of her which is a further act of sexual violation of her by you. This was a very serious example of this offence. In one of the photographs, you have your naked thigh pressed against her naked body and your exposed penis in close proximity. I am sentencing you for the charge to which you have pleaded guilty but you were, in my view, fortunate not to be charged on a further charge of sexual assault in respect of this image.
(2)Ground 2: There was an error in the sentence first imposed on summary charge 9 arising from the applicant having been sentenced on the wrong factual basis
It is convenient for us to address ground 2 before ground 1.
It is common ground that the applicant used his mobile phone to record the victim while she was asleep in his bed.
It is also common ground that two photographs were produced as a result of this conduct.
In one, the applicant has recorded the victim’s naked torso and vagina while he has pressed his naked thigh against her body and exposed his penis in close proximity to her (the first photograph).
In the other, the applicant has recorded the victim wearing only black underwear on his bed, seemingly asleep (the second photograph).
(a)The applicant’s submissions
The applicant contends that the prosecution case on summary charge 9 was founded upon the use of the device by the applicant to take one photograph only, namely, the first photograph.
The applicant effectively asserts that he was sentenced for having taken the two photographs, and thus the judge sentenced him upon an erroneous factual basis. That was a material error; it could not be concluded that the mistake could not have materially affected the sentence imposed on that charge[94] given the relevance of the error to the assessment of offence gravity and moral culpability.
(b)The respondent’s submissions
[94]R v Beary (2004) 11 VR 151, 159 [21] (Callaway JA); [2004] VSCA 229.
The respondent appears to accept that the judge took the second photograph into account. However, it submits that the judge was correct to do so. Two bases for this were identified.
•The applicant pleaded guilty to the ‘use’ of an optical surveillance device, which was apt to cover the improper use of his mobile phone to take two photographs of the complainant within 11 minutes of each other. This amounted to a single episode of offending.
•Although counsel in the court below focused their submissions on the first photograph, it was not an agreed fact that the offending was limited to only that photograph.
Alternatively, even assuming that reference to the second photograph was productive of error, the respondent submits that it did not make any material difference to the sentence ultimately imposed.
(c)Analysis
(i)Was there an error?
Summary charge 9 reads:
The accused at Brunswick on 26 July 2019 did knowingly use an optical surveillance device to record visually a private activity, to which the accused was not a party and without the express or implied consent of the party involved in the activity.
Section 7(1) of the Surveillance Devices Act 1999 provides:
Subject to subsection (2), a person must not knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity.
The purpose of this offence is aimed at regulating the improper use of optical surveillance devices. In other words, the offence is concerned with the conduct of using a particular device, rather than the resultant recording of a private activity.[95]
[95]Brown v Palmer (2008) 192 A Crim R 18, 29 [48]; [2008] VSC 335.
By his plea of guilty to related summary charge 9, the applicant admitted to having improperly used his mobile phone to record visually a private activity involving the victim without the necessary consent.
The number of resultant photographs taken by that use is not particularised under summary charge 9. That being the case, it becomes important to ascertain how the prosecution sought to put its case in relation to the photograph or photographs at the plea hearing.
At trial the following reliance was place upon the photographs:
•In the prosecution’s Amended Summary of Prosecution Opening, the prosecution relied upon the taking of the first photograph and the second photograph under the description for summary charge 9.[96]
•While summary charge 9 was not before the jury, evidence of the taking of both photographs was before the jury during the trial.
[96]Amended Summary of Prosecution Opening, [32].
The following occurred at the plea hearing:
•There was no formal prosecution opening on the plea.
•The prosecution filed some written submissions for plea, which said:
[The applicant] is also pleading guilty to a related summary offence contrary to s.7 of the Surveillance Devices Act 1999 involving the taking of a photograph of the complainant while she is naked in his bed following a period of 2 – 3 hours following the commission of the offences which are the subject of the plea.
•No reference was made to the taking of the second photograph in the prosecution’s plea submissions.
•In the applicant’s written outline of submissions filed for the plea hearing, the following was submitted:
[The applicant] submits that the taking of photographs of the complainant (including the photograph the subject of the related summary offence) should not be regarded as an aggravating circumstance of the sexual offences…
•During the plea hearing, on several occasions, the applicant’s counsel made reference to, and emphasised, that (emphasis added):
The plea here relates to a single photograph. (this being a first photograph).
…
I would say this, that in comparison to other examples of this offence that might come before the courts is that there's no evidence of a sophisticated surveillance installation or a hidden camera set up or anything of that kind. There's no evidence of possession of equipment specifically for taking invasive photographs and this is a photograph taken on a phone and Your Honour would find that it was a momentary judgment made by the accused that he could do that. It may be of some relevance that it appears to have been deleted soon after the commission of the offence. I accept that it's a bad example of that charge but it is a single photograph and there's no evidence of the sort of sophisticated surveillance setups that one might see in some cases.
•The prosecutor took no issue with this submission. Indeed, in her submissions in reply, the prosecutor said the following (emphasis added):
There's the standard sentence and category 1 offence referred to there and in terms of the photograph which is the naked photograph in his bed, Your Honour's described that.
…
I’ve referred to the offence of the photograph being a serious example of the offence, of her being unaware … it was a concern for her and I have submitted that the photograph in particular, just referring back to that is particularly degrading and humiliating in all the circumstances.
While not free from uncertainty, by the time of the plea hearing, it seems that both parties were operating on the basis that a single photograph informed summary charge 9, namely the first photograph.
The judge said the following in her sentencing reasons:[97]
You began to contact her via text at 9.30 am on Friday 26 July. Initially Ms Joseph did not respond but at 11.18 pm she sent you a text in response to you asking if she was ok, in which she replied,
“No I am not feeling okay what you did last night was not on, I said no and pushed you off so many times. You saw how drunk I was and basically you took advantage of that. I feel really violated tbh. Did you take a photo of me last night because I remember seeing a flash. Yeah I really don’t know what you were thinking and I feel really uncomfortable about”.
You responded at 9.22 am on Saturday the 27th. You apologised and stated, “Also, no photo, I did turn it on though as a flashlight instead of turning on the lights”.
This statement was shown to be a lie, as were your denials of having photographed the victim to police in your record of interview, when police later located two deleted photographs on your mobile phone. One taken at 7.02 am on 26 July 2019, which depicted Ms Joseph’s naked torso and vagina and your naked penis. The second taken at 7.13 am on 26 July 2019 which depicted the 20 back of Ms Joseph wearing only black underwear lying on your bed.[98]
These photographs are the basis of Summary Charge 9.
[97]DPP v Butcher [2023] VCC 1224, [8]–[36] (‘Reasons’).
[98]Reasons, [33]–[36].
In our view, and for the reasons we have given, the premise upon which the judge sentenced the applicant — ‘these photographs are the basis of Summary Charge 9’ — was erroneous.
We have considered whether the judge referred to the second photograph merely as a background circumstance (much like defence counsel did in his written submissions filed on the plea).
There is a difficulty with this. In her Reasons the judge gave a description of the second photograph, which implies that its nature had some significance. Further, the judge explicitly stated that it formed the basis of the charge (along with the first photograph). Also, nothing was otherwise said, either at the plea or in the judge’s Reasons, which confined the use of the second photograph.
The respondent argues that by his plea the applicant admitted to having improperly used his mobile phone’s camera to record the private activity in question,[99] and that the taking of the two photographs of the complainant were encompassed by a single episode of use. The respondent goes further and asserts that ‘it was not an agreed fact that the offending was limited only to [the first photograph]’.
[99]Brown v Palmer (2008) 192 A Crim R 18, 29 [48]; [2008] VSC 335.
We reject these arguments. There is no evidence of any agreement that summary charge 9 was intended to encompass both photographs. We can discern no such agreement in this case, nor are we prepared to infer one, especially given the manner in which the plea hearing was ultimately conducted. There was no indication that the use was put forward as a continuing offence, resulting in the taking of two photographs. As best we can tell, the plea hearing was ultimately conducted upon the basis that the conduct embraced by this charge was confined to the use of the mobile phone to take a single photograph.[100]
[100]Conversely, each act of taking a photograph could in any event reasonably be regarded as a separate ‘use’ of the optical surveillance device (the mobile phone’s camera): the first ‘use’ resulting in the production of the first photograph; the second ‘use’ resulting in the production of the second photograph.
If the prosecution case was that summary charge 9 was a single continuing use which resulted in two photographs being taken 11 minutes apart, it was the duty of the prosecutor on the plea to clarify that, especially in the face of the statements made by defence counsel. Instead, prosecuting counsel acquiesced in the applicant’s statements that the charge rested upon a single photograph. It is not open to the respondent to adopt a different position on appeal.
We accept the applicant’s argument that he fell to be sentenced upon the basis that the use of the device resulted in the taking of one photograph being the first photograph. The judge mistakenly proceeded upon the footing that the charge related to the use of the mobile phone to take two photographs.
An error has been established.
(ii)Materiality
The question then arises as to whether the error ‘could not have materially affected the sentence’ on summary charge 9.[101]
[101]R v Beary (2004) 11 VR 151, 159 (Callaway JA); [2004] VSCA 229.
We must ask whether the error had the capacity to affect the sentence imposed. It is not necessary for us to be satisfied that it did, in fact, affect the sentencing discretion.
As this Court explained in Johns v The Queen:[102]
The critical question is whether the error vitiated the sentence. Where there are many integers to the discretion, as there are in sentencing, it is not necessary to seek to discern whether an error in respect of part of the exercise infected the result by identifying its actual impact. The critical issue is the capacity of the error to have affected the sentence that was imposed by the judge. The sentence includes, at least, the sentence imposed on the charges and the non-parole period.
On occasion, the word “material” has been employed as a descriptor of the relevant type of error. That does not mean that it is necessary to predict the actual effect on the sentence rather than the capacity of the error to affect the outcome. Often both the capacity of the error to affect the outcome and its actual impact on the sentence will be apparent. But it is not essential for the appeal court to be persuaded that error actually affected the result in order to exercise its discretion to resentence.
[102]Johns v The Queen (2020) 22 MVR 160; [2020] VSCA 135.
The respondent submitted if the judge’s reference to the second photograph was productive of error, it made no material difference to the sentence ultimately imposed.
In support of this argument, the respondent makes the following observations about the lack of prominence given to the second photograph at the plea hearing and in the judge’s Reasons:
•During the plea hearing, the discussion about this charge focused exclusively on the first photograph.
•In her Reasons, the sentencing judge emphasised the seriousness of the offending only by reference to the first photograph.[103]
•Beyond a passing reference to the second photograph in her Reasons,[104] the sentencing judge made no findings of fact about it.
[103]Reasons, [67].
[104]Reasons, [35].
There is force in the proposition that the gravamen of summary charge 9 centred around the circumstances in which the first photograph was taken. This was the focus at the plea and in her Honour’s reasons. It can be accepted that the error is likely to have had little or no impact on the sentencing outcome. But that is not the question we must address.
In the end, we are unpersuaded by the argument that the error could not have affected the sentencing synthesis. We cannot characterise the reference to the second photograph in her Reasons as merely a ‘passing reference’, as contended by the respondent.
The judge could have considered that the taking of two photographs made the offending more serious, even marginally so. For example, the judge could have considered that the use of the device to take two photographs, over 10 minutes apart, meant that this was not isolated and momentary wrongdoing.
Put in a slightly different way, we are not satisfied that the error was ‘so insignificant’ that ‘it could not have materially affected the decision’.[105]
(iii)Disposition
[105]Gillespie (a pseudonym) v The Queen [2018] VSCA 151, 13 [53].
As we have determined that the error was relevantly material, we must determine whether leave should be refused on the basis that there is ‘no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed’.[106]
[106]Criminal Procedure Act 2009, s 280(1)(b).
This Court must consider for itself what the appropriate sentence should be, both in terms of its individual components and total effective sentence.[107]
[107]A similar approach was taken in Russo (a pseudonym) v The King [2024] VSCA 40, 18 [66]–[72].
Of course, we would undertake that exercise upon the basis that only the first photograph informs the gravity of summary charge 9.
In carrying out this exercise, we are conscious that, in conformity with the concessions made by applicant’s counsel at the plea hearing, a term of imprisonment would be required for summary charge 9. It was a serious example of this offence. Furthermore, it would be necessary that some cumulation be ordered to reflect the fact that this activity — although confined to the use of the mobile phone to take one photograph — constituted serious separate criminality. The applicant has never sought to impugn the making of an order for cumulation, nor the level of cumulation ordered by the judge, being three months.
Giving due consideration to the applicant’s mitigatory material, together with the nature and gravity of his offending, we do not think that there is a reasonable prospect that this Court would impose a lesser total effective sentence, despite the sentencing error established. Even if the sentence on summary charge 9 were reduced, there is no reasonable prospect that the order for cumulation would be less than three months.
For these reasons, we would refuse to grant leave to appeal on ground 2.
(3)Ground 1: The sentence imposed on summary charge 9 was manifestly excessive
(a)The applicant’s submissions
The applicant contends that the sentence imposed on summary charge 9 was manifestly excessive by reason of the aggregation of mitigating factors, including:
•his plea of guilty;
•his otherwise good character;
•his prospects of rehabilitation; and
•the additional hardship endured by those in custody as a consequence of the response to the COVID-19 pandemic, which, at the time of sentence, remained relevant.
In support of this ground, the applicant also fastens on the mathematical observation that the sentence imposed on summary charge 9 represents 50 percent of the maximum penalty for this offence.
(b)The respondent’s submissions
The respondent contends that the sentence imposed on summary charge 9 is well within the range of available sentencing options.
The respondent argues that the judge was correct to describe the offending as a ‘very serious example’ of this type of offence. The respondent referred to a number of factors which it contends justify this characterisation. These include the fact that the offending involved a serious intrusion into the complainant’s privacy, personal integrity and security, and took place when the complainant could neither protest nor resist.
Additionally, the respondent submits that the applicant’s moral culpability could only be described as ‘high’, which was a matter conceded on the plea.
The respondent submitted that it is of no real importance that the sentence imposed represents a relatively high proportion of the maximum penalty (50 per cent). This is to be expected when the offence attracts a low maximum penalty. We expand upon this argument below.
(c)Analysis
In bringing this application, the applicant recognises that the Court may refuse leave if (amongst other things) there is no reasonable prospect that it would reduce the total effective sentence.[108]
[108]Criminal Procedure Act 2009, s 280(1)(b).
The applicant in his written case also accepted:
Realistically, given the order for cumulation on summary charge 9 was limited to 3 months, the applicant appreciates that it would be difficult for him to persuade the Court to grant leave on this application if his conviction appeal does not succeed.
This concession was properly made.
As the conviction appeal has failed, the other sentences will stand.
For many of the reasons we have given while addressing ground 2, there is no reasonable prospect that a reduction in the sentence imposed on summary charge 9 would result in a reduction in the total effective sentence.
That all said, we do not think that the applicant has established the impugned sentence was ‘wholly outside the range of sentencing options available’.[109]
[109] Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157.
The sentencing judge was correct to describe this conduct as representing a ‘very serious example’ of this type of offence.[110]
[110]Reasons, [67].
Like the whole of the sexual offending which occurred that night, and as the judge found, the offending involved the taking advantage of ‘an intoxicated and unwell colleague and friend’.[111]
[111] Reasons, [69].
The act of photographing the complainant in this manner involved a gross intrusion into the victim’s privacy and personal integrity, and represented an appalling exploitation of her vulnerability.
It is therefore unsurprising that the applicant’s counsel at the plea hearing conceded that the offending was a ‘bad example’ which justified the imposition of a ‘standalone’ term of imprisonment (and which had to result in some cumulation).
Nevertheless, on its face, a period of 12 months’ imprisonment, after a plea of guilty and having regard to the applicant’s circumstances in mitigation, may appear stern by reference to the maximum penalty. It represents 50 per cent of the applicable maximum.
That said, as the respondent submitted, this can only take the applicant so far. This Court has recognised that, where the offences attract a relatively low maximum penalty, ‘mathematical proportions have less if any significance’.[112]
[112] Keene v The King [2023] VSCA 143, 3 [17]. See also Bromley v The Queen [2018] VSCA 329, 17 [64]; Day (a pseudonym) v The Queen [2022] VSCA 73, 13 [49].
It would have been open to impose a shorter term of imprisonment. But it does not follow that the sentence imposed was manifestly excessive. This was undoubtedly serious offending.
In any event, as the applicant’s concession accepts, there is no reasonable prospect that we would reduce the total effective sentence.
We would refuse to grant leave to appeal on ground 1.
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