Cashin v The Queen
[2017] ACTCA 13
•24 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Cashin v The Queen |
Citation: | [2017] ACTCA 13 |
Hearing Date: | 16 February 2017 |
DecisionDate: | 24 April 2017 |
Before: | Burns, Mossop and Rangiah JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – Appeal against conviction and sentence – where the jury delivered inconsistent verdicts – whether the verdicts are unsafe and unsatisfactory – where the sentences were accumulated –whether the sentences imposed were manifestly excessive. |
Legislation Cited: | Criminal Code Act 1995 (Cth) ss 474.26, 474.27, 474.27A Crimes Act 1900 (ACT) s 61(2) |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 DPP (Cth) v FM [2013] VSCA 129; 45 VR 64 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | David John Cashin (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms M Jones (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 54 of 2016 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Rares J Date of Decision: 5 December 2016 Case Title: R v Cashin Citation: [2016] ACTSC 351 |
THE COURT:
The appellant came to trial before Rares J and a jury on 19 September 2016. He faced an indictment containing 13 Counts. At the commencement of the trial he pleaded guilty to Count 12, namely the use of a carriage service to transmit an indecent communication.
On 23 September 2016, the jury returned a verdict of guilty on Counts 1, 2, 9, 10, 11 and 13. Verdicts of not guilty were returned on Counts 3, 4, 5, 6, 7 and 8.
On 5 December 2016, the appellant was sentenced in respect of the offences to which he had been found, or pleaded, guilty. He was sentenced as follows:
(a)Count 1 (act of indecency with young person) – a period of imprisonment of 2 years to commence on 23 September 2016;
(b)Count 2 (act of indecency with young person) – a period of imprisonment of 2 years and 6 months to commence on 23 December 2016;
(c)Count 9 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 December 2017;
(d)Count 10 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 January 2018;
(e)Count 11 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 February 2018;
(f)Count 12 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 1 year and 9 months commencing on 23 June 2018; and
(g)Count 13 (use carriage service to groom person under 16) – a period of imprisonment of 3 years commencing on 23 August 2018.
Ultimately the effect of the sentences is a head sentence that will expire on 22 August 2021 and a non-parole period that expires on 22 March 2019.
The Notice of Appeal was filed on 14 October 2016. An Amended Notice was filed on 6 December 2016. The appeal attacks the verdicts in Counts 1, 2 and 13. In addition, the appellant says that the sentence imposed was manifestly excessive.
The complaint concerning Counts 1 and 2 is that the verdicts of guilty are inconsistent with the verdicts of not guilty on Counts 3 to 8. The verdict of guilty on Count 13 is said to be unsafe and unsatisfactory.
Background to the offences
The offences took place in 2013, 2014 and 2015. The appellant, a male, was then aged between 58 and 60 and the victim, a female, was aged between 11 and 13. The appellant was the husband of the victim’s godmother who was, in turn, a close friend and business partner of the victim’s mother. The mother was actually a foster mother who had assumed the care of the victim when she was about eight years of age. It was known to the appellant that the victim had a troubled childhood and he was part of a support group concerned with providing emotional support and guidance to the victim. The relationship was said to be close.
As His Honour noted in his sentencing remarks:
Before and during the period of all of the offences, the offender was in a relationship of trust with the victim and her mother. At all of those times the victim was under the age of 16.
A detailed description of the offences can be found in the sentencing remarks. The following is a summary:
Count 1: In 2013 the appellant approached the victim from behind as she was preparing to have a shower. He touched her breasts and offered to dry her. The offence was contrary to s 61(2) of the Crimes Act 1900 (ACT) (the Crimes Act).
Count 2: In 2014 the appellant was alone with the victim. They were sitting on a couch watching television. The appellant placed his hand between the victim’s legs, he squeezed her buttocks and later placed his hand between her legs again. The offence was contrary to s 61(2) of the Crimes Act.
Count 9: This Count, together with Counts 10, 11, 12 and 13 occurred when the appellant was in Canberra and the victim was in Queensland. The offences took place through the medium of Facebook. Count 9 involved the suggestion of gently biting parts of the victim’s body. The offence was contrary to s 474.27A of the Criminal Code Act 1995 (Cth)(the Criminal Code).
Count 10: This Count involved, again, subtle suggestions of intimacy between the appellant and the victim. The offence was contrary to s 474.27A of the Criminal Code.
Count 11: This Count concerned sexually provocative messages and photographs including, as his Honour found, the victim being encouraged to send to the appellant a photograph of her naked breasts. The offence was contrary to s 474.27A of the Criminal Code.
Count 12: Again on Facebook, the appellant made indecent suggestions to the victim including telling her that he would “lick all of you yum...all over.” The offence was contrary to s 474.27A of the Criminal Code.
Count 13: During the exchange making up this Count, the appellant commented on the victim’s breasts. He sent her a photo of his nipple and she responded with a photo of her naked breasts. He observed: “Double yum”. The offence was contrary to s 474.27(1) of the Criminal Code.
It is now necessary to set out the facts which were alleged to make up Counts 3 to 8. These facts are drawn from the Amended Case Statement. Count 3 involved the victim staying at the appellant’s house during school holidays. It is alleged that the appellant and the victim were sitting on the couch and the appellant put his hand inside the victim’s underpants and rubbed her genitalia. Count 4 then alleged that following the Count 3 incident, the appellant undressed the victim and himself and put her hand on his penis. A little later, but on the same day, it was alleged that the appellant removed his trousers and underwear and made the victim rub his penis. This conduct constitutes Count 5.
In Count 6, the appellant and the victim were back on the couch. The appellant allegedly removed his trousers and placed his penis in the victim’s mouth.
Count 7 allegedly took place on a different day, but close in time to Counts 3 to 6. It was alleged that the appellant rubbed the victim’s genitalia, firstly over her clothes and later with his hand beneath her clothes. It was alleged that he inserted two fingers into her genitalia. In Count 8, it was alleged that following the Count 7 incident, the appellant undressed the victim, opened her legs and licked her genitalia.
It is noted at this stage, firstly, that Count 1 occurred in 2013 and happened at the appellant’s home. Count 2 occurred at the same location but in 2014. It was not on the same day as the allegations making up Counts 3 to 8. Secondly, Counts 3, 4, 5 and 6, also at the appellant’s house, all took place on the same day over a relatively short space of time. Count 7, again at the same location, involved allegations on a separate day, including separate to Counts 1 and 2.
It is necessary to explain how the complainant came to reveal the alleged offences. I have taken the following summary of events from the submissions made by the respondent, the factual accuracy of which was not challenged by the appellant. The complainant, who was born in 2001, was the foster child of OO and had been in her care since the complainant was eight years old. OO was a sole parent. [Redacted for legal reasons.]
OO worked full time until May 2013. When she fostered the complainant, she established a number of supportive relationships to assist her to raise the complainant. The appellant and his wife were part of this support network. OO was required to travel on overnight trips with work until she ceased working in May 2013. When OO travelled for work, and on some other occasions, the complainant stayed with the appellant and his wife.
On Saturday 27 June 2015, as a result of a telephone call with her brother, OO took the complainant’s laptop off her and discovered a number of messages between the complainant and the appellant that caused her concern. OO became suspicious that something may have been going on between the appellant, who was almost 60 years of age at that time, and the complainant. That afternoon OO raised the messages with the complainant. The complainant told OO that the appellant sent her messages which were inappropriate, and that he often asked the complainant to delete messages he sent. In this initial conversation between OO and the complainant, the complainant said that the appellant touched her breasts and had touched her between her legs.
The way in which this information came out of from the complainant is important. In her evidence, OO was questioned about the manner in which the complainant made her revelations:
Now, your recollection in your statement that you wrote, the notes you wrote was, “She first denied this and then quickly changed her answer to, ‘Yes, he had,’ when I said, ‘Really?’” You put “really” in question – quote marks sorry, with a question mark. Do you agree that that’s what - - -? ---Oh sorry, yes.
--- you put in there and – does that help refresh your memory of this conversation that you had with [the complainant], because you didn’t seem to much – remember much of this conversation when you were speaking to the prosecutor? --- Yes.
“I asked her,” and this is again from your statement, “I asked her why she thought he’d asked her to – to – and if she had.” You’ve then written, “She admitted that she had deleted them and told me it was because he had criticised me,” as in you, [OO], “and that ‘He was always putting you down and telling, [the complainant], how overprotective you were’”? --- Yes.
Do you agree? So that was one reason, and then you then asked her if that was the only reason, then she said, “No, sometimes she wrote – sometimes he wrote,” rather, “inappropriate things,” and you asked her, “What was that, like, what?” and she replied. “Rude stuff”? --- Yes.
Now, you then started to ask her about things you were worried that David might have done to her, didn’t you? --- Um, probably, yes.
Okay. And indeed, you – you’ve recorded in your statement, “I then asked her if he had ever touched her – if I had ever touched her when it made her feel uncomfortable - - -
MS CHRISTENSEN: Your Honour, I’m sorry, but in my submission that’s a misleading question; I’d ask my learned friend to put all of the conversation if he intends to recite it to the witness.
MR LAWTON: You asked – all right, you asked her, “...if he had ever sent photos to her as well, she said, ‘Yes,’ and recounted when he was in Turkey last year, filming [redacted for legal reasons]. He sent her a picture of him,” do you agree that’s what’s in your statement? --- Yes.
Do you recall her saying that now, or is – you don’t recall that? --- Um, I do recall her saying that, I don’t recall her – when – exactly when.
Okay, all right. “She said that she had since deleted this,” – oh, I’m sorry, “I asked him what – which bit of him and she replied, ‘His penis,’” do you agree that’s what you said? --- Yes.
“She said she had since deleted this,” agreed, that’s what you said? --- Yes.
”She then – she said he touched her when it made her feel uncomfortable,” do you agree? --- Yes.
“I then asked her if he’s ever touched her on her boobs,” is what you’ve written there? --- Yes.
“I asked how, and she put her hand over one of her breasts and said, “Like this.’ I asked her when this was, and she said, ‘Ages ago.’ I asked her if it was this year, she said, ‘No, ages before,’ but didn’t know exactly when,” do you agree? ---Yes.
“He then asked her if she had – he then,” right, “I then asked her if she had touched her anywhere else,” I’m sorry, “I then asked her if he had touched her anywhere else; she at first said no, but then told me he had put his hands on her vagina,:” do you agree? --- Yes.
You then said – keep reading it – “I asked if he had used his fingers to go inside her and she said, ‘Yes,’ and burst into tears”? --- That sounds about right.
So this is – you – you’ve written this within a day or so of having this conversation? --- Yeah, more - - -
So just be - - -? --- - - - accurate for my memory right now.
So you asked her, “... if he had used his fingers to go inside her and she said, ‘Yes,’ and burst into tears”? --- Mm’hm.
“I asked if she had ever seen his penis and she said, ‘Yes,’” do you agree that’s what you’ve written? ---Yes.
“She remember a time when they were watching MASH and he showed it to her. I asked her if he had asked her to touch it and she said, ‘Yes, more than once,’ and that she had done as he had asked,” do you agree that that’s how you’ve written it? --- Yeah.
Following this disclosure the matter was reported to Care and Protection and then to the Australian Federal Police. The complainant was interviewed by Senior Constable Tanja Catalinac on 2 July 2015. This interview was recorded and played at the trial as part of the complainant’s evidence-in-chief. The allegations made by the complainant in this interview became the basis for Counts 1 and 2 on the Indictment, which were the Counts on which the appellant was convicted.
Following this interview, and while they were driving home, OO questioned the complainant about what had occurred between her and the appellant. During the course of that questioning the complainant revealed further allegations of sexual impropriety by the appellant. The complainant gave the following evidence concerning the way in which these allegations were revealed:
So we were driving home after mum’s statement and she started listing a whole lot of things, had he – like, had he touched me and I said “yes”. She said, “Have you told Tanja?” And I said “Yes.” And then she said, “Did he try to put his penis in your mouth?” And I said “Yes”. And she said “Did you tell Tanja?” And I said “No”. And then I went home and all these things started popping into my head and I couldn’t remember if I had told anyone, if I hadn’t, I knew I should.
The complainant was subsequently re-interviewed by police and made further allegations against the appellant. These allegations form the basis of Counts 3 to 8 on the Indictment, which were the Counts on which the appellant was acquitted. The evidence is, therefore, that there were two separate disclosures by the complainant; the first disclosure to her foster mother before the first interview with police, and the second disclosure to her foster mother in the car on the way home from the first interview.
It was suggested in cross-examination to OO that in the car on the return journey from the police station, OO had “started listing things” to check that the complainant had told Senior Constable Catalinic about them. OO was unable to recall whether this had occurred. In cross-examination Senior Constable Catalinic was asked about the appropriate method of questioning a vulnerable witness to elicit reliable information:
Senior Constable, you mentioned earlier in your evidence-in-chief to my learned friend that you’ve been trained in the taking of evidence from child complainants. Is that right? ---Vulnerable people.
Vulnerable people, I’m sorry. And that was a course that took a week, as I understand it?---About a week, yeah.
But I think you mentioned in fact the course has recently been expanded to two weeks? --- Yeah, that’s right.
And as part of that course you were trained to use particular questions when obtaining evidence from vulnerable people, aren’t you? --- That’s right.
Part of the training that’s given to you is that you have to be very cautious that you don’t inadvertently suggest things to the vulnerable people? --- That’s right.
Is that right? --- That’s right.
So, for example, when we heard you talking to [the complainant] both at the college and later in the police interview room, you would often use the phrase, “Tell me everything about that”? ---Sure.
And that was part of the training that you were given? --- That’s correct.
And part of the reason you use that particular phrasing is so it’s not that you’re in fact suggesting to somebody what they might want to tell you about? ---That’s right.
We could see you were very conscious that as best as possible you were trying to get [the complainant] to provide you evidence of what she said happened, without being prompted? ---That’s right.
And that’s why you particularly avoided using anything that would suggest the answer? ---That’s right.
On the TV shows and indeed in evidence we call it a leading question? --- That’s right.
So, for example, you would not ask a vulnerable person, as part of your training – or you’ve been trained to not ask a vulnerable person, “Did he put his fingers into your vagina,” that sort of question? --- That’s incorrect. It just depends on where we are in the interview as to when we can refer to that.
I take your point. You would not use that sort of phrasing until the vulnerable witness themselves had actually used those - - -? ---That’s right.
- - terms. But to return to my question, you wouldn’t, if you want, unprompted want to use that form of question, would you? --- Ordinarily not.
No, because the risk is that you might inadvertently suggest something to the vulnerable person that in fact didn’t happen? --- Potentially, yes.
That’s right. And indeed when we saw you taking evidence from [the complainant], you were very careful to keep repeating that phrase of, “Tell me everything about that,” you agree? - - - That’s it.
But when something wasn’t forthcoming, you would have to prompt her by taking her back to what she may have said to her mother, would you agree? ---Correct. It’s called probing questions, yes.
So the probing question is, “You’ve said something to someone else,” and that’s as far as you go and then you return to the “Tell me everything” questioning? --- That’s right.
And, again, that’s part of the training because it’s critical that you don’t inadvertently suggest something - - - ? --- That’s right.
- - to the witness? So you wouldn’t – I’ll withdraw that.
Let me phrase this. You would never have asked a vulnerable witness a question to the effect of, “Did he touch you anywhere else?” unless they suggested that to you beforehand in one of their earlier answers? --- Again, it depends on the witness and the circumstances. Sometimes you can definitely.
You wouldn’t necessarily directly ask a vulnerable person if they had seen someone’s penis – that is, the offender’s penis – unless perhaps they had referred to that fact beforehand? --- Ordinarily not. But again, circumstances would dictate that.
So ordinarily not because, again, you don’t want to risk suggesting something to the vulnerable person that may have in fact not happened. Would you agree? --- That’s right.
Returning to that earlier question I asked you, you would never, unless the witness had volunteered this and you’re asking – you’re effectively trying to get them to expand on it, you would never directly ask them if an offender had ever used his finger to go inside her, would you? --- Not without prompting.
Not without prompting. So those are the sorts of questions that you would, as best as possible, avoid asking for those reasons we’ve discussed: because you don’t want to suggest to the vulnerable person - - - ? That’s - - -
- - something that may or may not have happened? --- Yeah, it is right. We ask them a lot of questions – breadth questions, depth questions. Depending on where they’re at, you can either – it’s like a funnel. We try to get a really – will expand until we can get what they need to tell us.
Sure. And it’s only if you’re effectively going – getting nowhere that you might change to the probing questions that you’ve described where you prompt them by what they may have said to someone else? --- Correct. So we start with the probing and then we’ll start going to direct questions.
Sure. So just to be clear, is the probing question the “tell me everything stuff? --- Yes, sorry.
Then the direct questions are “you may have someone else this happened” - - - ? ---Yes, “tell me everything about that”.
- - and then you return to the probing style of questions? --- That’s right.
Sorry. I misunderstood you and I wanted to make sure the jury understands. The probing question is the “tell me everything about that” – type of question - - - ? ---Yep.
- - rather than the direct “you said something to someone else” question? ---That’s right.
So if we understand the process would be the probing questions first? --- Yes.
If no success with that you then might return to the direct questions and say, for example, “You said this to you mum before you came here,” and then, if you like, that “positions” the witness. Then you return to the probing questions. So again you return to those – the “tell me everything” style – so you don’t want to suggest things to the witness? ---That’s right.
It was the case, was it not, that [OO] had made arrangements for [the complainant] to come in and do a secondary statement because it appeared that had been some other disclosures. Is that right? --- That’s right.
Again, you were told of what those disclosures were by [OO] and then you used that direct style of questioning with [the complainant] in the second interview after the initial probing question hadn’t yielded much fruit, for want of a better expression? --- Yes.
Inconsistency in the verdicts
The appellant submitted that the evidence in relation to all of Counts 1 to 8 came from the victim, and that her credibility was accordingly crucial to the Crown case on all of these charges. In short, the appellant said that if the jury did not accept the victim’s evidence about Counts 3 to 8 then it could not, consistently, have accepted her evidence about the first two Counts. The respondent submitted that there were factual differences regarding the evidence pertaining to these two sets of offences, such that there were logical reasons why the jury may have returned the verdicts they did. In particular, the Crown submitted that the jury were entitled to conclude that the second disclosure made by the complainant to OO was less reliable because it was made by the complainant, a vulnerable witness by reason of her age and background, as part of a process of leading questions put to her by OO. A corollary of that submission is that the first disclosure could be treated as complaint evidence, but the jury may well have not been satisfied that the second revelation could be so treated.
The appellant referred to both the Crown’s final address and also to his Honour’s summing up. In both, said the appellant, the jury was told that the “crucial” or “critical” evidence came from the complainant in respect of all of Counts 1 to 8. His Honour directed the jury in this way:
And in most cases where sexual assault or acts of indecency are alleged, there’s only one prosecution witness who is capable of giving direct evidence of what occurred. In this case it’s [the complainant]. We call such a person in the law a complainant, so if I use that expression in this summing up and don’t say [the complainant], you’ll understand that she’s the person who can give that direct evidence. So you’ve got to examine her evidence very carefully before deciding whether you’re prepared to accept it beyond reasonable doubt in relation to the critical matters on counts 1 to 8, because they’re the counts that involve her giving you evidence about what happened as she alleges.
In addition, his Honour said this to the jury when discussing context evidence:
It is to give you a context to say, well, it wasn’t – it was part of their relationship so you see it coming out of a history of their interactions and of course if you form the view as the accused has told you or you don’t find [the complainant] to be a reliable witness, that they didn’t have such a relationship, well, then, of course, you will acquit the accused on counts one to eight.
Looking at the just quoted passages, the appellant submitted that his Honour dealt with Counts 1 to 8 in a manner that suggested they all turned on whether or not the complainant’s evidence was accepted. Accordingly, said the appellant, there was no room for the jury to accept the complainant on some of the Counts but not others.
The credibility of the complainant, and the reliability of her evidence, was clearly an important issue in the appellant’s trial. Where the Crown case is based wholly or substantially on the evidence of a single witness, it is usual for the trial judge to direct the jury that they should scrutinise the evidence of that witness with great care before they accept it: R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315. This, however, is only one of a number of directions commonly given in such cases, and which were given in this case. It is important to consider the trial judge’s directions to the jury in their totality. As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen [2002] HCA 53; 213 CLR 606 at [34]:
Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of the jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
The respondent submitted that the trial judge adopted an “all or nothing” approach to Counts 1 to 8, pointing to that portion of his summing up where, after directing the jury on the elements of the charges, his Honour said:
That’s the role of these elements, they are the facts you have got to find beyond reasonable doubt. As I say, for all of counts 1 to 8, the issue is did it happen really, and you might well find that the other elements are not of such consequence.
In addition, the appellant submitted, consistent with his Honour’s asserted “all or nothing approach”, that His Honour did not direct the jury that each Count must be considered separately. In fact, this submission is incorrect. In his initial directions to the jury at the commencement of the trial, the trial judge clearly directed the jury that they must consider each charge separately. In his final directions to the jury the trial judge returned to this issue, saying with regard to the Counts on the indictment:
There is nothing in law, or for that matter, in commonsense which requires you to return the same verdict in respect of every count. You go through each of these individually.
Later, he also said:
As you are aware, the 12 remaining counts in the indictment to which the accused has pleaded not guilty have got to be considered separately and you have to determine whether the Crown has proved beyond reasonable doubt that he is guilty of the particular charge having regard only to the evidence relevant to that charge.
Each side appropriately referred to the decision of the High Court in MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366-368 and referred to, at least in part, the six general propositions stated by the High Court, as follows:
1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of "differences in the evidence presented at the two trials" or "the different views which the juries separately take of the witnesses".
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."
We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case".
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.
(Citations omitted.)
In GW v The Queen [2015] ACTCA 15; 306 FLR 104 this Court stated, at [59]:
...
Whether a conviction is truly inconsistent (unreasonable) depends upon the circumstances of the particular case: R v NEK [2001] NSWCCA 392 at [24] per Priestley JA, Peiris v The Queen [2014] NSWCCA 58 per Leeming JA at [22] – [25]. In Peiris at [28], Leeming JA observed that a jury would be entitled to return different verdicts based not only on differences that were discernible on the face of the transcript and the documentary evidence, but also based on the complainant’s demeanour when recounting different episodes, or by having regard to the inherent plausibility or implausibility of the relevant conduct.
The starting point in this appeal is the appellant’s assertion that his Honour essentially dealt with guilt or innocence on Counts 1 to 8 as if there could not be any distinction between the verdicts on these Counts. The appellant submitted that the trial judge directed the jury that the complainant’s reliability was vital to proof of these Counts and that they all survived or fell with the jury’s conclusion on that reliability.
This proposition must be rejected. His Honour did not at any stage tell the jury that a finding on any one or more of the first eight Counts dictated the finding on the balance of those Counts. The trial judge adopted a pragmatic approach to directing the jury regarding common elements in the Counts, but he clearly directed the jury that they were obliged to consider each Count separately.
In addition, his Honour told the jury that it was open to them to accept part of the evidence of a witness and reject other parts. No objection was taken by trial counsel to this direction. When considering the complainant’s evidence about each Count, it was open to the jury to accept some of her evidence and reject other parts. Consistent with this approach, it was open to the jury to find the complainant’s evidence about Counts 1 and 2 to be reliable but that her descriptions about the other Counts were not reliable.
It is against the background of these general directions that the issue of inconsistency must be considered. There are a number of circumstances which are, in our opinion, capable of rationally explaining the jury’s verdicts. These are the issues of complaint by the complainant, and the manner in which the separate disclosures came about. These issues are, to some extent, interconnected. As commonly occurs in sexual offence trials, the trial judge was called upon to give the jury a direction on complaint evidence, and in doing so he also addressed the suggested differences in the manner in which the disclosures came about:
The Crown relies on what [the complainant] said to her mother [OO], foster mother, I will call her mother, because that’s how she wanted her called, about the alleged acts by the accused on her as evidence about the making of her complaint. [OO] drafted a handwritten note of 29 July... concerning statements that she made which she said was a record of her initial conversation with [the complainant] following the discovery of the Facebook images on 27 June...
The note recorded [OO’s] questions to [the complainant] about her relationship with the accused and [the complainant’s] responses, and you will remember that there is a bit of an issue between the parties...as to whether perhaps you might find that [the complainant’s] evidence that she gave in both audiovisuals had been in some way prompted by the way her mother had questioned her and not in the same way, it might be suggested, as the police constable, Catalinac, had questioned her with open ended questions...
The questions included that [OO] asked whether the accused had ever touched [the complainant] when it made her feel uncomfortable and you might not think that was a leading question. [The complainant] responded “He touched me on the boobs” and her question which was recorded in the note...was when did the accused touch her on the boobs and she replied “Ages ago”. The mother then asked whether the accused had touched her anywhere else, to which she first no (sic) but then she told her he put his hands on her vagina.
Again, you might think that’s (semble “not”) [OO] leading or suggestions or “Did he touch you on the vagina”, that was something [the complainant] came up with. The mother then asked whether the accused had used his fingers to go inside, to which [the complainant] had said yes and then burst into tears. She then asked if [the complainant] had ever seen the accused’s penis and she said yes, recalling a time that the accused had shown [the complainant] his penis and she said “Yes, more than once” and she had done as he had asked. Her mother asked her if he had ever put his penis inside her and she said no.
The Crown relies on what [the complainant] said to her mother about the alleged sexual incidents in counts 1 to 8 alleged against the accused on her as evidence that she is telling the truth in the allegation she made when she gave her audiovisual evidence in the two exchanges she had with the police and when she was giving evidence earlier in the year before the Chief Justice. It’s for you to decide whether the complaint was made and what its contents were and the terms of what she told her mother.
If you are satisfied that a complaint was made in terms consistent with the allegations when [the complainant] gave evidence in the audiovisual things you have seen, then the question you should ask yourself is did she act in a way you would expect her to act if she had been sexually assaulted or subjected to the act of indecency alleged in counts 1 to 8 as she said she had been? Is what she said the sort of comment you would expect of a person in her position and her age at the time and if you think that [the complainant] has done what you would expect someone in her position to do, that may support the Crown’s case because it makes her evidence more believable.
You might find that there is a consistency between her conduct and the allegations she makes against the accused but this evidence only goes to the consistency of [the complainant’s] conduct and therefore it might impact on your assessment of her truthfulness or her credibility, but you can only use this evidence of complaint in this way. You cannot use it as evidence that the assault or the act of indecency actually occurred. You are looking at it as to how it impacts on your assessment of whether you believe her or whether she is being inconsistent about her accounts of the incidents.
The Crown didn’t lead the evidence in itself being able to prove any of the eight counts of 1 to 8 in the indictment. You can only find each of those counts proved on the evidence given in the audiovisuals is that you have seen of [the complainant] and the other evidence given in the courtroom and not what was said when [the complainant] was in the car with her mother or at home with her mother. It follows that if you find that [the complainant] has not acted in the way you would have expected someone to act of her age and personal circumstances after being assaulted or subjected to the act of indecency that she described, then that may indicate that her allegations are false but remember there may be good reasons why [the complainant] didn’t raise the allegations immediately and the failure of her to do so doesn’t mean the allegations are false.
You might also remember, as Mr Lawton (for the accused) elicited in cross-examination of the mother, that she accepted she could have said to [the complainant] when they were driving home from the police station on 7 July... something like “Did he try to put his penis in your mouth” and that is certainly something that [the complainant] did say in the second audiovisual, as I mentioned to you earlier. You can also take into account as to whether or not you think [the complainant’s] complaints – in how you assess the impact on her, that she did burst into tears when her mother asked her and she said yes about the accused putting his fingers into her.
In the above passage the trial judge has directed the jury’s attention towards a number of circumstances relevant to assessing the complainant’s credibility and the reliability of her evidence. First, his Honour has drawn the attention of the jury to the cross-examination of OO and Constable Catalinac suggesting that the questions put to the complainant by OO, and which elicited her disclosures, may have been leading questions which suggested responses to the complainant. The trial judge suggested that the jury could view the questions asked by OO, and which led to the first disclosure, as being more open ended than the questions asked by OO which led to the second disclosure. In our opinion there is a very clear difference between the questioning of the complainant by OO which led to the first disclosure and the questioning which led to the second disclosure. The questioning which led to the first disclosure is much more open ended, and much less suggestive of potential answers than the questioning which led to the second disclosure. The jury was entitled to take this into account in determining the reliability of the complainant’s evidence regarding those matters revealed in the second disclosure, particularly in the light of the evidence of Constable Catalinac about the dangers of asking leading questions when interviewing vulnerable witnesses. As a corollary of this, the jury were also entitled to treat the disclosures made by the complainant in the first disclosure differently to those made in the second disclosure based upon complaint. The jury were entitled to find that the statements made to OO by the complainant in the first disclosure constituted complaint evidence such as to support the credibility of the complainant. The jury was equally entitled to find that the statements made by the complainant to OO in the second disclosure, while constituting evidence of complaint, should be given little weight because the complainant had not acted in a way that they may have expected her to act in the circumstances by not revealing all of the allegations of sexual offending against the accused in the first disclosure to OO or in the first interview with the police.
The verdicts rendered by the jury with respect to Counts 1 to 8 were clearly divided according to whether the charges arose out of the first disclosure or the second disclosure. This is consistent with the jury approaching its task diligently, and with an appreciation of the onus and standard of proof. As we have demonstrated, the evidence differed between Counts 1 and 2, and that with regard to Counts 3 to 8. There is no affront to logic or commonsense revealed by the differences in verdicts rendered by the jury. This ground of appeal fails.
Count 13
Turning now to Count 13, the complaint is that the evidence before the jury was not sufficient to allow the jury to be satisfied beyond reasonable doubt “that the appellant had the intention of making it easier to procure the complainant to engage in sexual activity with him.”
Count 13 is an offence contrary to s 474.27(1) of the Criminal Code:
(1)A person (the sender) commits an offence if:
(a) The sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) The sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
(c) The recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) The sender is at least 18 years of age.
Penalty: Imprisonment for 12 years
The following relevant terms are defined in the Dictionary to the Criminal Code:
“engage in sexual activity”: without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.
“sexual activity” means:
(a) sexual intercourse; or
(b) any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or bodily actions or functions (whether or not that activity involves physical contact between people).
The appellant referred us to the decision of the Court of Appeal of Victoria in DPP (Cth) v FM [2013] VSCA 129; 45 VR 64, where the Court said in relation to the offences of “grooming” under s 474.27 and procuring under s 474.26 of the Criminal Code:
58. We cannot see how the Crown could discharge its obligation to prove an intent to encourage the recipient to engage in sexual activity if it cannot be shown that there was any intent, on the part of the accused, to engage in such activity. Why would the legislature deem it appropriate to criminalise, in a wholly artificial way, conduct which lacks the moral culpability inherent in the very notion of ‘procuring‘ or ‘grooming’?
.......
60. Procuring requires an intent to procure. Relevantly, that includes an intent to “encourage, entice or recruit”. It is difficult to see how an accused, who has not the slightest wish to have the recipient of his communications engage in sexual activity with him, can be said to have intended to “encourage, entice or recruit” her to do any such thing.
The material relied upon by the Crown to establish this charge were numerous text messages exchanged between the appellant and the complainant on 26 and 27 January 2015. At that time the complainant was on holiday in Brisbane. The undisputed evidence was that she was to return to the Australian Capital Territory(ACT) the following day, and the appellant would pick her up from the airport and spend the day with her. The appellant told the complainant in those messages that they would be alone as his wife was taking their son to Sydney. The content of a number of these messages from the appellant to the complainant was clearly sexual. The appellant conducted this text exchange with the complainant late at night. The complainant told him that she was watching a movie, and that people in the movie were “getting naked”. The appellant replied “Yum Yum you like”. When the complaint replied “What”, the appellant replied “the getting naked part or is it ew”. He subsequently asked the complainant whether she had her pyjamas on, and when she asked why, he said “just wondering like to think nice things”. At 11:57 pm the complainant sent a photograph of her cleavage to the appellant, who replied “Wow nice puppies”. A few minutes later she sent the appellant a further photograph showing her bra and cleavage. The appellant replied “Yum”. At 12:03 am on 27 January 2015, the appellant sent a photograph of his nipple to the complainant. She replied “Yum”. About one minute later the complainant sent a further photograph showing her naked breasts to the appellant, who replied “Double yum”.
The trial judge dealt specifically with the intent required by s 474.27(1). He told the jury:
The critical element is number five, namely has the Crown proved beyond reasonable doubt that the accused transmitted the messages that it relies on with the intention of making it easier to procure [the complainant] as the recipient of his messages to engage in sexual activity with him. I direct you as a matter of law that in element five, sexual activity means sexual intercourse or any activity of a sexual or indecent nature that involves the human body or bodily actions or functions and the activity does not need to involve any physical contact between people so again sexual activity can be sending provocative messages or – but what the Crown is saying here is that the accused had a particular intention in transmitting these messages as you have heard in the cross-examination that the – it alleges the accused sent the messages – and exchanged messages with [the complainant] on Facebook on 26 and 27 January 2015 intending that she would engage in sexual activity of some kind. It doesn’t have to be actual physical.
Further on in the directions, his Honour continued:
Members of the jury, you might think a 60-year old man responding to a 13-year-old girl in that way was sexually provocative as the Crown would argue, or perhaps you would think it was part of a cheeky game, or merely inappropriate. That’s a matter for you. The Crown has the onus to prove element 5 beyond reasonable doubt, and if you’re not satisfied that it has, you must find the accused not guilty on count 13. If you are satisfied that it has, then you would find him guilty.
There was no request by counsel representing the appellant for any redirection on this issue, and the appellant makes no complaint about the trial judge’s directions on this issue in this appeal.
There was also tendency evidence available to the jury which it was permitted to use in determining the appellant’s intention on Count 13. The Crown was permitted to lead evidence of each of the 13 Counts on the indictment to establish that the appellant had tendencies to show a sexual interest in the complainant and to seek sexual gratification from her. The appellant entered a plea of guilty to Count 12, admitting to having sent the complainant a picture of his penis. The jury was well entitled to find that the appellant possessed the tendencies alleged by the Crown, in which case it was entitled to take into account in determining his intention with regard to Count 13 that he had the tendencies alleged by the Crown. The inference that the appellant had these tendencies is virtually irresistible on the evidence presented at the trial.
The appellant submitted that the text messages from 26 and 27 January 2015 relied upon by the Crown to the purposes of Count 13 were insufficient to establish the requisite intention on the part of the appellant. This submission ignores the fact that there was other evidence which the jury was entitled to take into account in determining the intention of the accused with respect to those text messages on 26 and 27 January 2015. There were earlier text messages between the appellant and the complainant which the jury were entitled to take into account in determining the intent of the accused with respect to the text messages on 26 and 27 January 2015. On 24 January 2015, the appellant had sent a text message to the complainant saying “me to you looking after those of magic nips”. The jury were entitled to find that this was a reference to the complainant’s nipples. The complainant responded “yep nigh nigh (sic) babe look after the boy Dow (sic) there. Ok”. The jury were entitled to find that this was a reference to the appellant’s penis. The appellant then responded “No probs something for you to sleep on you have to check it when you get home”. The jury were entitled to find that this was a suggestion by the appellant to the complainant that they engage in some form of sexual activity when she returned to the ACT.
The appellant was due to pick up the complainant from the airport and be alone with her upon her return from Brisbane. When one factors in messages such as “you have my undivided attention for the whole day so can use me as you will”, sent by the appellant to the complainant on 26 January 2015, there is unequivocal evidence capable of being viewed as an intention to engage in or procure sexual activity with the complainant, particularly in light of the expansive definition of the term “sexual activity” found in the Criminal Code.
The attack on Count 13 must therefore also fail.
The appeal against sentence
The principles concerning the identification of a manifestly excessive sentence are well known. For present purposes it is sufficient to quote the following passage from Zdravkovic v The Queen [2016] ACTCA 53 at [51]-[52]:
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
The first part of the appeal against sentence involves Counts 1 and 2. The attack is based on a comparison made by the appellant with the sentences imposed on him and sentences in other matters where lesser sentences were imposed for similar offences. The Crown took us to other sentences which have been previously imposed that were equivalent to those imposed on the appellant. There are well established principles governing the use of “comparable sentences” in considering an appeal alleging that a sentence is manifestly excessive. Sentences imposed in other cases may show a sentencing pattern and provide a “yardstick”, but they do not establish that the pattern is correct: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [41]. The correct approach to a ground of appeal alleging manifest excess was stated in O’Brien v The Queen [2015] ACTCA 47 at [25]:
The considerations that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
(a) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
(b) The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].
(c)In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85].
(d)It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
It is incumbent upon a sentencing judge to have regard to similar sentences in similar matters, but prior sentences for similar offences do not establish a range into which all subsequent sentences for that offence must fall. In Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80, Burns J said at [137]-[139]:
Finally, the appellant referred to a number of previously decided cases, citing the penalties imposed in those cases, to support his submission that the penalty imposed by the primary judge for the offence of culpable driving causing death, and also the aggregate sentence, was manifestly excessive. There can be no doubt that reference to sentences imposed in previous cases involving the same type of offending can provide a useful guide in sentencing an offender. In addition, consistency in sentencing is important: Lowe v R (1984) 154 CLR 606; Wong v The Queen (2001) 207 CLR 584 per Gleeson CJ at [6]. The consistency required by the criminal law in sentencing offenders is not to be mistaken for nucal equivalence. In Hili v The Queen (2010) 242 CLR 520 the plurality of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:
48.Consistency is not demonstrated by, and does not require, nucalequivalence. Presentation of the sentences that have been passed on federal offenders in nucal tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offences sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
49.The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt 1B of the Crimes Act. When it is said that the search is for “reasonable consistency”, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form.
The appellant provided us with a schedule of nine previous cases, decided in this Territory and in other jurisdictions, said to be comparable with the present. However caution must be exercised in considering the sentences imposed in these cases. In Hudson v The Queen (2010) 205 A Crim R 199 the Victorian Court of Appeal (Ashley, Redlich and Harper JJ) said:
28.Sentences imposed in “like” cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the “instinctive reaction” when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of “current sentencing practices” which is one factor that the court must consider under s 5 (2) of the Sentencing Act 1991 (sic). By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
29.“Like” cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that “comparable cases” can only provide limited assistance to this court. They may however be used in search of unifying principles.
........
31.A detailed examination of “like” cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not regarded as some sort of “benchmark” which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matter is personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.
32.To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a “like” case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, records to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of “like” cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.
33.It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in “micro detail”, as such an approach will ordinarily be indicative of an intent to use the case is providing something more than a guide to arrange.
34.Other jurisdictions have also deprecated the practice of inviting comparisons between the challenge sentence and sentences in other cases. Such comparisons have been viewed as providing no meaningful assistance other than as a general indicator of whether the impugned sentence is outside the range.
These principles were recently reaffirmed by the Victorian Court of Appeal in Reid (a pseudonym) v The Queen [2014] VSCA 145, where the Court (Maxwell P, Whelan and Priest JJ) also acknowledged the difficulties associated with appeal courts looking at schedules and tables showing the bare results of sentencing in other cases without having recourse to the unique and individual features of each case. Even greater difficulty is occasioned where, as here, a relatively small number of supposedly comparable cases are contained within the schedule.
In a separate judgment, agreeing with Burns J in the result, Ross J said at [192]-[193]:
In seeking consistency sentencing judges have regard to what has been done in other cases. However, care must be taken in using what has been done in other cases. The consistency which is sought is consistency in the application of relevant legal principles, not nucal equivalence: Barbaro v The Queen (2014) 305 ALR 323 at 331 [40]. Past sentences provide guidance to sentencing judges and ‘stand as a yardstick against which to examine a proposed sentence’: Hili at [53]-[54] and Barbaro at [41]. But while a history of sentencing can establish a range of sentences that have in fact been imposed, that history does not establish that the range is the correct range or that the upper and lower limits to the range are the correct upper or lower limits (Hili at [54]). As the High Court has said on a number of occasions, what is important is the unifying principles which past sentences reveal and reflect: Wong v The Queen (2001) 207 CLR 584 at 606 [59]; Hili at [54]; Barbaro at [41].
As to the articulation of unifying principles, the plurality in Wong said:
“[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is also told why those sentences were fixed as they were.” ((2001) 207 CLR 584 at 606 [59])
In our opinion, the sentences imposed are not manifestly excessive, either individually or in the aggregate. There is a dominant element in the facts of this case which must be at the forefront of any examination of sentence. Even putting aside the significant age difference between the appellant and the complainant, there remains the fact that the appellant occupied a position of trust with regard to the complainant. The appellant was aware of the complainant’s troubled background. He was a trusted member of a circle of people formed to provide emotional support to the victim. These offences demonstrate a gross breach of his position of trust.
The appellant made some specific complaints about the way in which the primary judge structured the sentence. The appellant contended that the sentences for Counts 9 to 12 should have been entirely concurrent as they reflected a single episode of criminality. The trial judge, in his sentencing remarks, approached these charges as having occurred as part of a single course of conduct, but this finding does not require total concurrency. Consideration of the sentences imposed by the trial judge reveals that he allowed a significant concurrency in relation to the sentences imposed for those offences, in effect adding one month for each of the sentences following Count 9. The sentence imposed for Count 9 itself had significant concurrency in relation to sentences imposed for other offences. No error is demonstrated in the way in which the trial judge approached sentencing on these Counts.
With regard to Count 13, the appellant referred us to the decision in R v Asplund [2010] NSWCCA 316; 216 A Crim R 48 (R v Asplund) where on a Crown appeal the appellant was re-sentenced to terms of imprisonment of three years and four years respectively with regard to two offences contrary to s 474.27(1) of the Criminal Code. Consideration of the circumstances in R v Asplund suggests that the sentence imposed by the trial judge on the appellant on Count 13 is entirely within range. In R v Asplund the ages of the complainant and the offender was similar to the ages of the complainant and the appellant in the present case. The offender sent the victim photos of his penis and encouraged her to send naked photos of herself. The offender had no face-to-face contact with the victim and was not aware of her personal circumstances. There was no relationship of trust between the offender and the victim as existed between the appellant and the complainant in the present matter. It is worthwhile quoting from the reasons of McClellan CJ at CL in R v Asplund at [50]:
The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing to these offences and must be enforced by the courts with sentences of appropriate severity.
We note that the sentence imposed on Count 13, being three years imprisonment, is 25 per cent of the maximum penalty prescribed for this offence.
Finally, the appellant submitted that the sentence imposed on Count 13 should have been made concurrent with the sentences imposed on Counts 9 to 12. An examination of the sentences imposed by the primary judge reveals that only 17 months of the 3 year sentence imposed on Count 13 was made cumulative upon earlier sentences. This was a separate and serious offence which justified the sentence imposed of 3 years imprisonment. The fact that it formed part of a course of conduct engaged in by the appellant was recognised by the trial judge by making nearly half the sentence imposed on Count 13 concurrent with sentences imposed for other offences.
Conclusion
The appeal should be dismissed.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 24 April 2017 |
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