Conor Meyer (a pseudonym)[1] v The Queen [No 2]
[2020] VSCA 206
•19 August 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2020 0004
| CONOR MEYER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN [No 2] | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the name of the complainants.
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| JUDGES: | BEACH, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 August 2020 |
| DATE OF JUDGMENT: | 19 August 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 206 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2175 (Judge M Sexton) |
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CRIMINAL LAW – Conviction – Appeal – Indecent assault, sexual penetration of child under 16 – Two complainants – Whether judge erred in refusing to admit evidence of acquittals of other charges in earlier trial – Whether verdicts were unreasonable and/or could not be supported on the evidence – Whether judge erred in allowing cross-examination of defence witness by prosecutor after conclusion of cross-examination by counsel for accused – Application for leave to appeal against conviction refused – Evidence Act 2008, s 38.
CRIMINAL LAW – Sentence – Appeal – Applicant sentenced on first trial to imprisonment for 6 years and 6 months, with a non-parole period of 4 years – Applicant sentenced on retrial for same offences and additional offence first jury could not agree on to 8 years and 1 month, with a non-parole period of 6 years – Whether judge erred in sentencing applicant to higher sentence on charge that was the base sentence in first trial – Application for leave to appeal granted – Appeal allowed – Base sentence set aside and applicant resentenced to original sentence on that charge – Applicant resentenced to total effective sentence of 7 years, with a non-parole period of 4 years and 4 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A P Lewis | Fayman Lawyers |
| For the Respondent | Mr C B Boyce QC with Ms K Crennan | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
T FORREST JA
WEINBERG JA:
The applicant was originally charged on Indictment F12152628 (‘the first indictment’) with 27 counts of committing sexual offences against two young girls, who were under the age of 16 years, in the period June 1980 to September 1982. In March 2017, following a trial in the County Court, he was convicted of 13 of those charges, and was sentenced to a total effective sentence of 6 years and 6 months, with a non-parole period of 4 years.
On 31 May 2018, this Court[2] allowed the applicant’s appeal against his convictions and ordered a retrial.[3]
[2]Priest and Kaye JJA, Maxwell ACJ dissenting.
[3]Meyer (a Pseudonym) v The Queen [2018] VSCA 140 (‘Meyer [No 1]’).
In August 2019, the applicant was retried, on Indictment F12152628.2 (‘the second indictment’), on the charges on which a retrial had been ordered, and on an additional charge in respect of which the jury at his first trial[4] had been unable to agree. On 2 September 2019, the jury in the second trial returned verdicts of guilty on each of the charges on which the applicant was retried, and on the additional charge which the first jury had been unable to agree upon.[5] On 18 December 2019, following a plea hearing, the applicant was sentenced to a total effective sentence of 8 years and 1 month, with a non-parole period of 6 years.
[4]And an alternative to that charge.
[5]As a result of the verdict of guilty on the additional charge, no verdict was taken on the alternative charge.
The applicant now seeks leave to appeal against conviction and sentence. His proposed grounds of appeal against conviction are as follows:
1.The trial judge erred in not admitting evidence relating to charges 1, 2, 7 and 8 from the first trial and the verdicts of not guilty on those charges.
2.The verdicts of the jury on charges 5, 7, 8 and 9 were unreasonable and/or cannot be supported having regard to the evidence.
2A.The verdicts on charges 1, 2 and 3 were unreasonable and/or cannot be supported having regard to the evidence.
3.The trial judge erred in allowing cross-examination of [the applicant’s wife] by the prosecutor pursuant to s 38 of the Evidence Act 2008 after the conclusion of cross-examination by counsel for [the applicant].
The sole proposed ground of appeal against sentence makes complaint that the judge erred ‘by imposing a more severe sentence after the retrial than was imposed after the first trial’.
Background
In his first trial, the applicant was charged with committing 27 offences between June 1980 and September 1982. At the commencement of this period he was 24 years of age. He was 26 at the end of the period. The charges involved two complainants, who were sisters: AL, who was born on 29 September 1966; and HK, who was born on 22 September 1967. At the time of the alleged offences, the two complainants lived with their parents and their younger brother and sister in Mooroolbark.
In September 1979, the applicant and his wife, Audrey Meyer,[6] moved into a house opposite the complainants’ home. Subsequently, Mrs Meyer gave birth to two sons: Glen, who was born in August 1980; and Leigh, who was born in December 1981. After the applicant and his wife moved into the neighbourhood, AL and HK often visited the applicant’s family home, either alone or together, to assist the applicant and his wife care for their infant sons, and to use the applicant’s aboveground swimming pool. As a result, a friendship developed between the applicant and his wife, on the one hand, and AL and HK. The applicant’s alleged offending took place in the context of the visits by the two complainants to his home.
[6]A pseudonym.
At his first trial, the applicant was convicted of:
·five charges of indecently assaulting a girl (AL) contrary to s 55 of the Crimes Act 1958 (charges 4, 5, 6, 10 and 18 on the first indictment);
·one charge of sexual penetration of a child above the age of 10 but under the age of 16 (AL) contrary to s 48(1) of the Crimes Act, as amended by the Crimes (Sexual Offences) Act 1980 (charge 20 on the first indictment);
·and six charges of indecent assault (relating to HK) contrary to s 44(1) of the Crimes Act, as amended by the Crimes (Sexual Offences) Act 1980 (charges 21 to 27 on the first indictment).
Following his conviction and sentencing after the first trial, the applicant sought leave to appeal on four grounds of appeal. After abandoning ground 1, his three remaining grounds were as follows:
2.The verdicts on 4, 5, 6, 10, 18 and 20 are unsafe and unsatisfactory.
3.A substantial miscarriage of justice occurred by reason of the prosecutor being permitted to cross-examine the witness Audrey Meyer in re-examination.
4.An aggregation of errors has resulted in a substantial miscarriage of justice.
In Meyer [No 1], the Court of Appeal rejected the applicant’s unsafe and unsatisfactory ground;[7] held that the judge in that trial (Judge Gucciardo) erred in granting leave to the prosecutor to cross-examine Mrs Meyer after defence counsel had cross-examined her, but concluded that this error, taken alone, did not result in a substantial miscarriage of justice to the applicant;[8] and allowed the appeal as a result of an aggregation of errors in the conduct of the first trial.[9]
[7]Meyer [No 1] [2018] VSCA 140, [172].
[8]Ibid [207].
[9]Ibid [270], [279].
Accordingly, the Court of Appeal in Meyer [No 1] ordered a retrial in respect of charges 4, 5, 6, 10, 18 and 20 (involving AL) and charges 21-27 (involving HK). Those charges respectively became charges 1, 2, 3, 5, 8 and 9 (involving AL), and charges 10–16 (involving HK) on the second indictment. Three further charges on the second indictment should be mentioned:
·Charge 4 on the second indictment was charged in error. This was charge 9 on the first indictment, a charge of which the applicant was acquitted in his first trial. The error was discovered during the course of the second trial and the charge was taken away from the jury.
·Charges 6 and 7 on the second indictment were charges 15 and 16 on the first indictment. These were alternative charges depending on whether the particular incident charged (penile/oral penetration in the carport of AL’s home) occurred on a date between 29 September 1980 and 28 February 1981 (charge 15/charge 6) or on a date between 1 March 1981 and 28 September 1981 (alternative charge 16/charge 7).
Following the second trial, the applicant was convicted on charges 1–3, 5 and 7–16. As a result of the guilty verdict on charge 7, no verdict was taken on the alternative charge (charge 6).[10]
[10]And, as we have said, the remaining charge, charge 4 was removed from the jury’s consideration.
Complainants’ evidence of the offending
The evidence given by AL and HK at the first trial was recorded. The relevant parts of that evidence relating to the charges on the second indictment were played to the jury in the second trial. That evidence may be summarised as follows.
Evidence of AL
The first incident, described by AL (referred to as ‘the laundry incident’) involved charges 1, 2 and 3 on the second indictment. AL said that it was the first occasion on which the applicant assaulted her. She said that she was 14 years of age. The incident occurred one day in the laundry of the applicant’s home after school when she attended the applicant’s home wearing her school uniform. Audrey, the baby (Glen) and the applicant were home. AL said that she was up against the laundry trough and the applicant was in front of her. The applicant started to touch her breasts through her school uniform, then he undid the buttons at the front and touched her bare breasts (these were uncharged acts).
The applicant then put his hand down her pants and inserted his fingers inside her vagina (charge 2 — indecently assaulting a girl). He made AL feel his penis with her hand over the top of his shorts (charge 1 — indecently assaulting a girl). The applicant then knelt down, pulled AL’s pants down, and put his tongue inside her vagina (charge 3 — indecently assaulting a girl). His penis was erect at the time, and he said, ‘Now look what you’ve made me do’. AL noticed that his shorts were wet. After the incident, AL went home.
The next incident, described by AL, was the subject of charge 5 (referred to as ‘the driveway incident’). On that occasion, on one evening AL attended the Meyer premises wearing her school uniform. When she left the Meyer home, the applicant commenced to walk her home because it was dark. AL stepped off the applicant’s veranda, and her back was pushed up against the house. The applicant then began kissing AL, placing his tongue in her mouth and touching her breasts over her clothes. She told the applicant that people would be able to see them. The applicant responded that that would not happen, because they were in dark shadows. He told her that if she told anyone, they would go to Queensland together, and AL would not see her family again. During the incident, the applicant lifted one of her legs up, moved her underpants to the side, and put his fingers inside her vagina (charge 5 — indecent assault).
AL then described the incident alleged in the alternative charges 6 and 7, on which the jury in the first trial had been unable to reach a verdict (referred to as ‘the carport incident’). AL attended the applicant’s home wearing her school uniform. Later the applicant walked her back home because it was dark. The incident occurred when they reached the carport, that was in front of the garage at AL’s home. The applicant placed his hands on AL’s shoulders, pushed her to her knees, and positioned her face in his groin. He then forced his erect penis into her mouth, began thrusting it in and out of her mouth, and ejaculated into her mouth (charge 7 — sexual penetration of a child between 10 and 16 years).
The final incident, involving AL, was the subject of charges 8 and 9 (referred to as ‘the bedroom incident’). The incident took place in the master bedroom of the applicant’s home. AL said that she was lying naked on the bed. She could not recall how she came to be in that position. The applicant, who was clothed, knelt down at the end of the bed. He put his fingers inside her vagina (charge 8 — indecent assault). He then pulled a vibrator out from under the bed and asked her if she knew what it was, to which she replied ‘no’. The applicant turned the vibrator on, and put it inside her vagina (charge 9 — sexual penetration of a child aged between 10 and 16 years). As a result, she suffered pain, and asked the applicant to stop. However, he did not do so.
AL stated that all the incidents, that she described, took place over a period of four months to six months, while she was 14 years of age. She said that contact with the applicant ceased, when she went to hospital for a gallstone operation. Her evidence was that she had this operation when she was aged 15 years and 8 months.
AL gave evidence about a pretext phone call that she made to the applicant. In the pretext call, after a brief introduction, in which they discussed their families, AL said that she was now a mother of two children, and she needed to contact the applicant because she had two children and she needed an explanation about ‘all those times we were together’. The applicant then responded ‘And it was dumb … it was just a bad bad thing mate’. He told AL she should not blame herself, that he had no explanation other than that she was a ‘super attractive girl’.
AL responded ‘I was just a young girl’ to which the applicant said ‘I know, it was so wrong’. The applicant then continued ‘And I was only a young man meself, I was only 25 or something … It was just a bad time’. AL said ‘I was 14 and I was 15 …’ to which the applicant responded ‘No you were 16’. He repeated that he did not want AL to blame herself or think it was her fault. He said he should not have done it, ‘I shouldn’t have even hugged’. AL responded ‘… it happened more than once, it wasn’t just a once off …’ to which the applicant said ‘It did a couple of times …’.
Evidence of HK
HK gave evidence as to the circumstances in which she visited the Meyer home, and of the four incidents which were the subject of the charges against the applicant. She said that she came to know the applicant and his wife shortly after they had had moved into their home. HK was then 13 or 14 years of age. She said that the two families were friends. Her father was strict, and she regarded the Meyers as a young and trendy couple, and their home was somewhere to go to and have fun.
Originally, her relationship with the applicant was as a friend, but he would make suggestive comments to her, such as ‘[She] looked hot, [she] looked nice’. She used the swimming pool at the Meyers’ house, she listened to music with them, and danced and watched television with them. In the lead up to the incidents, that were the subject of the charges, the applicant commenced to make comments about her breasts, saying that she had ‘grouse boobs’.
Each of the incidents described by HK occurred when she visited the Meyer home, and the applicant was there, but his wife was not. On the first occasion, HK was dancing with the applicant in the lounge room. He went to the kitchen to get a drink. When he returned, she was facing the window. The applicant came up behind her, put his hands on her hips and kept dancing. He pulled her in close, and his hands went up her top and under her bra. He touched her breasts, and said ‘You’ve got grouse boobs’. HK said ‘I have to go home’, and she left. That incident constituted charge 10 (indecent assault).
The second incident, which comprised charge 11 (indecent assault), again occurred in the lounge room, when HK and the applicant were dancing. On this occasion, the applicant was in front of her. He lifted up her top, told her she had ‘grouse boobs, best boobs of anyone’, put his head over her shoulder, and touched both of her breasts.
The third incident, described by HK, was the subject of charges 15 and 16. On that occasion, she was seated on a green velvet couch in the applicant’s house watching television. The applicant went to the toilet. When he returned, he knelt on the floor in front of her between her legs, lifted up her top, and told her she had ‘grouse boobs, best boobs around’. He then sucked her left breast (charge 15 — indecent assault), and rubbed HK’s thigh with his hand near her groin (charge 16 — indecent assault). HK pushed his hand away and said ‘I’m not ready for this’. The applicant responded, ‘It’s okay it’s normal you’re beautiful’.
The final incident described by HK was the subject of charges 13 and 14. On that occasion, when HK knocked on the front door, the applicant opened it, and she walked into the lounge room. The applicant walked behind her and put his arms over her shoulders as if to hug her. He told her she was beautiful. His arms were crossed over her chest and he rubbed her body and breasts (charge 13 — indecent assault). The applicant’s right arm went down her waist inside her underwear and he touched her vagina. She tried to pull his hand away, but he resisted her, and penetrated her labia with his fingers (charge 14 — indecent assault). She pushed his hand away, and said ‘I’m not ready for this’. The applicant responded ‘It’s okay, it’s okay, it’s natural’. HK then left the house.
After that incident, HK kept her distance. She made a point of only visiting the Meyer house when the applicant’s wife was home. She said that the assaults had taken place over a period of months. At the time of each assault, she was aged 14 years, attending Year 8 in high school.
Applicant’s evidence
The applicant gave evidence at trial denying committing any of the offences charged against him. He said that he first met the complainants’ family about six or seven months after Glenn was born in August 1980. After that, the complainants started coming over to his home from time to time. He gave evidence that he and his wife always had dinner at 6 o’clock, and that he believed that the complainants’ dinner time was ‘similar because they had to be home before 6 o’clock’. In evidence-in-chief, he was asked and answered the following questions:
And did they often leave before dinner, leave your place?---To my knowledge, they always left before dinner.
…
Do you remember either of them being at your place … after dinner at any point in time?---There would have been a couple of times but I couldn’t tell you very often.
The applicant gave evidence that he and AL commenced to flirt in late 1982. The flirting involved ‘touching by brushing past … touching while standing too close together , just, — just disgusting remarks’. He then referred to an event which he said happened in early 1983. He was walking AL down to the bottom of his driveway, and they stopped and hugged and kissed. He said his wife saw what happened and was angry. He said from that point in time until after they subsequently moved house, flirting between AL and him ‘stopped immediately’.
Additionally, the applicant gave evidence of having an affair with AL in 1990. It was an affair that did not involve sexual intercourse. In cross-examination, the applicant said, ‘it was a waist-up affair’, and any touching below the waist ‘was through clothes’.
In relation to the pretext phone call, the applicant’s evidence was that much of what he said in the call related to the 1990 affair rather than flirting that occurred earlier. In evidence-in-chief, he was asked and answered the following question:
In this recorded conversation, are there any admissions, or in any of your statements, were you intending to admit to engaging in sexual misconduct with [AL] when she was under 16?---No I didn’t. No I didn’t.
The applicant gave evidence of various domestic events which he said supported the timing of the limited events he admitted, and which were said to dispute the timing contended for by the prosecution. Other evidence was adduced in support of this asserted timing. We shall refer to it where relevant when considering the individual grounds of appeal.
Conviction ground 1
At his first trial, the applicant was acquitted of charges 1, 2, 7 and 8 on the first indictment. Charges 1 and 2 related to an incident referred to as ‘the VFL Grand Final incident’ because it was alleged by AL to have taken place on the day of the 1980 VFL Grand Final between Richmond and Collingwood. Charges 7 and 8 related to an incident referred to as ‘the swimming pool incident’. In summary:
(1)In relation to the VFL Grand Final incident, AL alleged that on Grand Final day the applicant drove her to a secluded area. AL’s evidence in the first trial was that the applicant put his hand down her pants and inserted his fingers into her vagina (charge 1 on the first indictment); and then exposed his penis, placed one of her hands on it, and ejaculated into her hand (charge 2 on the first indictment).
(2)In relation to the swimming pool incident, AL alleged that this occurred when AL visited the applicant’s house with a friend. The applicant’s wife was at home and in the vicinity of the back door, talking to the applicant at one point while AL and the applicant were in the pool. AL’s evidence in the first trial was that the applicant pulled her bikini bottom down and partially inserted his penis into her exposed vagina (charges 7 and 8 on the first indictment, which were alternative charges).
At the commencement of the second trial, the prosecutor told the judge that the prosecution would seek to use the recordings of the evidence of AL and HK in the first trial. There was discussion about editing these recordings so as to remove evidence given in relation to the charges of which the applicant was acquitted in the first trial. Counsel for the applicant, however, sought to have put before the jury on the retrial the evidence in relation to charges 1, 2, 7 and 8 on the first indictment and the fact that the applicant was acquitted on those charges.
After hearing submissions, the judge ruled that the fact of the applicant’s acquittals on charges 1, 2, 7 and 8 on the first indictment was not relevant to the issues which the jury were required to decide on the retrial.[11] Accordingly, the judge did not permit evidence of the applicant’s acquittals to be admitted in evidence. Under ground 1, the applicant seeks to challenge this ruling.
[11]DPP v Meyer [2019] VCC 1724 (‘Ruling No 2’).
In ruling that the applicant’s acquittals were not relevant, the judge said:
I accept the prosecution submission that in this case, the fact of the earlier acquittals only establishes that the accused was not guilty of charges 1, 2, 7 and 8. I accept the further submission that it can never be known whether or to what extent the jury’s assessment of AL’s reliability and credibility impacted on the decisions to acquit on charges 1, 2, 7 and 8. As pointed out above, whatever the jury’s assessment of AL’s reliability and credibility on those charges, the decision to acquit on those charges did not prevent them being satisfied beyond reasonable doubt as to charges 4, 5, 6, 10, 18 and 20.
Therefore, I find that the evidence of the acquittals, while potentially relevant to assessment of AL’s reliability and credibility, could not rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue, being whether the remaining charges are proved. It follows that the proposed acquittal evidence is not relevant to the issues which the jury must decide in the retrial.[12]
[12]Ibid [28]–[29] (footnote omitted).
In terms, the judge ruled that ‘no evidence of the sexual acts the subject of [charges 1, 2, 7 and 8] or acquittals be permitted’. Her Honour did, however, permit evidence to be adduced about AL’s description of the applicant’s car and that she was with the applicant on Grand Final Day in 1980 and evidence which contradicted that evidence; together with AL’s evidence of swimming in the applicant’s pool in relation to the swimming pool incident, and evidence that contradicted that evidence.[13]
[13]Ibid [33].
In our view, the judge was correct to rule that evidence of the fact that the applicant was acquitted of the charges relating to the swimming pool incident and the VFL Grand Final incident was not relevant to a fact in issue in the trial of the charges on the second indictment.[14] As the judge put it, one cannot know whether, or to what extent, the jury in the first trial’s assessment of AL’s reliability and credibility impacted on its decisions to acquit on charges 1, 2, 7 and 8.[15] This is particularly so when one has regard to the fact that the first jury convicted the applicant on charges 4, 5, 6, 10, 18 and 20 on the first indictment.
[14]Cf Evidence Act 2008, s 91; Brown v The Queen [2020] VSCA 26, [36].
[15]Ruling No 2 [28].
In Ruling No 2, the judge permitted evidence to be led that contradicted AL’s account of relevant aspects of the VFL Grand Final incident and the swimming pool incident. While her Honour did not permit evidence of the alleged sexual acts the subject of those charges to be admitted, it should be noted that no application to admit that evidence without the evidence of the acquittals of those charges was made to her Honour.
All that the applicant’s acquittal of charges 1, 2, 7 and 8 on the first indictment established was the jury, on the whole of the evidence in that trial, was not satisfied beyond reasonable doubt in respect of at least one element of each of those offences. While the applicant is entitled to the full benefit of these acquittals,[16] the fact of them, in the circumstances of convictions by the first jury of other offences on the first indictment, could not ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ in the retrial.[17] In the circumstances, there was no error in the judge refusing to admit the evidence of the acquittals on charges 1, 2, 7 and 8 on the first indictment.
[16]R v Storey (1978) 140 CLR 364, 396.
[17]Cf s 55(1) of the Evidence Act 2008.
Before leaving this ground of appeal, we should make the following observations. At trial, the applicant sought to have admitted the evidence led at the first trial on charges 1, 2, 7 and 8 on the first indictment together with the fact that he was acquitted of those charges. A more limited application might have been made at trial by the applicant which would have permitted the admission of not only the contradictory evidence concerning non-sexual matters surrounding the VFL Grand Final incident and the swimming pool incident, but also contradictory evidence concerning AL’s allegations of sexual impropriety in relation to those incidents (to the extent that such evidence existed).
While evidence of the acquittals would again not have been admitted (that fact not being capable of rationally affecting the assessment of the probability of the existence of a fact in issue), depending upon the way in which the trial was conducted, the judge may have had to tell the jury that the applicant had been acquitted of charges in relation to these incidents and that, while those acquittals were not evidence relating to any fact in issue, they could not be called into question and the applicant was entitled to the full benefit of them. That is not the course that was taken, however, in this trial. Ground 1 must be rejected.
Conviction ground 2
Charges 5, 7, 8 and 9 were all particularised on the second indictment as having occurred between 1 March 1981 and 28 September 1981. Charges 5 and 8 were charges of indecent assault contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980; and charges 7 and 9 were charges of sexual penetration of a child between 10 and 16 years contrary to s 48(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980. One March 1981 was the date upon which those two sections (as amended) commenced operation.[18]
[18]The applicant was acquitted at his first trial of alternatives to charges 5, 8 and 9 that particularised the alleged offending as occurring between 29 September 1980 and 28 February 1981. As we have already observed, no verdict was taken on the alternative charge 6 on the second indictment (the jury having returned a guilty verdict on charge 7).
The Crown accepted at trial, and in this Court, that it was required to prove beyond reasonable doubt that each of charges 5, 7, 8 and 9 occurred on or after 1 March 1981. Under ground 2, the applicant contended that the jury’s verdicts of guilty on charges 5, 7, 8 and 9 were unreasonable and/or cannot be supported having regard to the evidence because the jury could not be satisfied that the relevant events that constituted the alleged offending occurred on or after 1 March 1981.[19]
[19]In his first appeal, the applicant contended that the six guilty verdicts in relation to the charges involving AL were unsafe and unsatisfactory, not because of any issue of timing but ‘because it was simply not open to find that [AL’s] recollection of events was sufficiently credible and reliable to found satisfaction to the requisite standard on each charge’. As we have already noted, that argument was not accepted by the Court in Meyer [No 1].
AL’s evidence at trial was, subject to one qualification, that the offending occurred over a four to six month period when she was 14 years of age. The one qualification is that, during cross-examination, AL said that the laundry incident (which she said was the first incident) occurred when she was 13.
In the pretext phone conversation between AL and the applicant, in response to AL saying she was 14 and that she was 15, the applicant said, ‘no you were 16’. He also said, ‘it was when I was working for James Boyd’. At trial, the applicant said he worked for James Boyd, ‘some time in ‘81 till Christmas ‘82.’
While AL accepted in cross-examination that the laundry incident occurred when she was 13 years of age, it was open to the jury not to accept that evidence. More particularly, it was open to the jury to accept AL’s evidence that the laundry incident was the first incident, and that there was a baby present but that the applicant’s wife was not at home. The applicant’s wife gave unchallenged evidence that for the first seven or eight weeks after Glen was born (in August 1980) her parents stayed at their home to assist. Additionally, the applicant’s wife said that she would not have left a newborn baby with a man, and that it was probably a few months before she left Glen alone with the applicant. Acceptance of this evidence precluded the offending occurring when AL was only 13 years of age.
In relation to charge 5, AL’s evidence was that the applicant walked her home because it was dark at the time. The evidence of AL and her parents was that dinner was at 6:00 pm each night and that AL and KH were required to be home for dinner at that time. At the time of the events constituting charge 5, it was dark. Thus, it was open to the jury to conclude that the driveway incident occurred sometime before 6:00 pm when it was dark. When one takes account of the evidence we have already referred to, it was then open to the jury to accept that this incident occurred some time after 1 March 1981.
By the same process of reasoning, it was open to the jury to conclude that charge 7 (the carport incident), which also occurred when it was dark, similarly occurred after 1 March 1981.
In oral argument, counsel for the applicant submitted that accepting that the events giving rise to charges 5 and 7 occurred when it was dark, it was still not open to the jury to conclude that the relevant incidents occurred at a time of year when it was dark by 6:00 pm. While there was a substantial body of evidence given by the complainants, their parents (and, to a lesser extent, the applicant and his wife) as to the usual practice of the girls being required to be home before dinner, and dinner in both households usually being at 6:00 pm, it was submitted that this evidence was not a sufficient basis upon which it could be concluded that the events giving rise to charges 5 and 7 must have occurred before 6:00 pm.
Having examined the evidence for ourselves, we do not accept this submission. It seems to us that, properly understood, there was an overwhelming body of evidence entitling the jury to conclude that the events giving rise to charges 5 and 7 must have occurred prior to 6:00 pm — and therefore at some time after 1 March 1981. The fact that on some occasions a witness might have answered a relevant question by saying ‘what was usual’ (for example, as to the timing of dinner in the complainants’ home) did not require the jury to have a doubt about whether a particular incident could conceivably have occurred after 6:00 pm because dinner might have been later that night. Examining the evidence as a whole, we are not persuaded that it was not open to the jury to accept that on each occasion the applicant offended, the offending occurred before 6:00 pm.
In relation to charges 8 and 9 (the bedroom incident), AL gave evidence that she witnessed renovations in the bedroom area at the time of the incidents that constituted that alleged offending. Both the applicant and his wife gave evidence about the timing of these renovations (late 1982 or 1983 according to the evidence of the applicant, and 1983 according to the evidence of the applicant’s wife). On any view, the offending constituting the bedroom incident occurred after 1 March 1981, and it was open to the jury to so conclude.
It follows from what we have said above that ground 2 must be rejected.
Conviction ground 2A
Charges 1, 2 and 3 on the second indictment were particularised as having occurred between 1 June 1980 and 28 February 1981. These charges were charges of indecent assault contrary to s 55(1) of the Crimes Act 1958. On 1 March 1981, that section was amended by substituting, for the offence for which the applicant was charged, a different offence.[20]
[20]Administering a drug with intent to render a person incapable of resistance and thereby enabling a person to take part in an act of sexual penetration outside marriage.
The Crown accepted at trial, and in this Court, that it was required to prove beyond reasonable doubt that each of charges 1, 2 and 3 occurred prior to 1 March 1981. Under ground 2A, the applicant contends that the jury’s verdicts of guilty on charges 1, 2 and 3 were unreasonable and/or cannot be supported having regard to the evidence because the jury could not be satisfied that the relevant events that constituted the alleged offending occurred prior to 1 March 1981.
More specifically, the applicant contended that, if, contrary to his arguments in relation to ground 2, it was open to the jury to conclude on the evidence that charges 5, 7, 8 and 9 occurred on or after 1 March 1981, then it was not open to the jury to also find at the same time that the offences the subject of charges 1, 2 and 3 occurred before 1 March 1981. In support of this contention, the applicant submitted that a finding that each of charges 5, 7, 8 and 9 occurred after 1 March 1981, ‘if it was open, must necessarily involve a rejection of AL’s evidence that the laundry incident occurred when she was 13’.
The submission that a finding that each of charges 5, 7, 8 and 9 occurred after 1 March 1981 must necessarily involve a rejection of AL’s evidence that the laundry incident occurred when she was 13 must be rejected. As we have already explained, it was open to the jury to accept AL’s evidence that there was a baby present in the applicant’s house when the laundry incident occurred and that the baby (Glen) was at least two months’ old — making AL 14 at the time of the laundry incident.
As we have already said, AL’s evidence was that the laundry incident was the first of the incidents of which the applicant was convicted. She was unable to say what the order of the other incidents was, although she gave evidence that the swimming pool incident was a ‘few days or weeks’ after the laundry incident. Her evidence was that the swimming pool incident occurred in the summer of 1980/1981. The jury were entitled to accept this evidence. It was a basis for them to permissibly conclude, to the requisite standard, that the laundry incident occurred prior to 1 March 1981.
Additionally, the evidence that the driveway incident (charge 5) and the carport incident (charge 7) occurred when it was dark, before 6:00 pm, coupled with the evidence that the laundry incident was the first incident and all of the offending occurred over a four to six month period, entitled the jury to conclude that the laundry incident (charges 1, 2 and 3) occurred sometime in early 1981 (and prior to 1 March of that year). Accordingly, ground 2A must be rejected.
Conviction ground 3
In ground 3, the applicant makes complaint about the judge permitting the prosecutor to cross-examine the applicant’s wife (Mrs Meyer) after the conclusion of cross-examination by counsel for the applicant. In order to understand this ground, it is necessary to set out some of the history to it.
In the applicant’s first appeal to this Court, one of his grounds of appeal was that a substantial miscarriage of justice occurred because the prosecutor in the first trial was permitted to cross-examine Mrs Meyer in re-examination. This Court concluded that the first trial judge erred in permitting that course, but held that the error did not result in a substantial miscarriage of justice.[21] In considering the ground, this Court set out the principles relating to the application of s 38 of the Evidence Act as follows:
(1)The exercise of the discretion, by a trial judge under s 38 to permit cross-examination of a witness, must be undertaken carefully in order to ensure that there will be no unfairness in the trial.
(2)In considering whether to grant leave under s 38, it is important to have regard to the factors specified in s 192(2) of the Act, and, relevantly, the extent to which the grant of leave would be ‘unfair to a party or to a witness’ pursuant to s 192(2)(c).
(3)In particular, the court should be astute to prevent the use of s 38 as a tactical or forensic device which may result in an unfairness to a party or a witness.
(4)As specifically stipulated by s 38(4), questioning under s 38 should ordinarily take place before any other party to the proceeding cross-examines the witness. However, if leave is given to a party to cross-examine its own witness in re-examination of the witness, after the completion of cross-examination of that witness by the other parties, the opposing party should be given the opportunity to further cross-examine the witness after the s 38 examination has been completed.
(5)Section 38(1) only permits a witness to be questioned, by way of cross-examination, about the three topics specified in subsection (1)(a) to (c). Accordingly, leave may only be granted to a party to cross-examine its own witness directed to one or more of those three topics. Such cross-examination may, however, also be directed to establishing the probability of the factual state of affairs in relation to a matter falling within one of those topics.[22]
[21]Meyer [No 1] [2018] VSCA 140, [207].
[22]Ibid [182] (citations omitted).
In the second trial, the prosecutor again made application under s 38 of the Evidence Act to cross-examine Mrs Meyer. The application was made at the conclusion of her evidence-in-chief. After hearing argument, the judge granted leave to the prosecutor to cross-examine on four topics.[23] No challenge is made in this Court in relation to that ruling.
[23]DPP v Meyer (a Pseudonym) (Unreported, County Court of Victoria, Judge M Sexton, 19 August 2019) (‘Ruling No 6’).
Following the making of Ruling No 6, the prosecutor cross-examined Mrs Meyer as permitted by the terms of the ruling. Mrs Meyer was then cross-examined by the applicant’s counsel.
At the conclusion of that cross-examination, and before re-examination, the prosecutor again applied to cross-examine Mrs Meyer. The application was made in relation to evidence given by Mrs Meyer in the course of cross-examination by the applicant’s counsel. In the course of that cross-examination, the applicant’s wife named a counselling service that she said that she and the applicant went to in 1990 after the applicant disclosed the existence of an affair between himself and AL. She also gave evidence that a vibrator found in their home in 2015 had been purchased in the 2000s. The prosecutor submitted that both of these pieces of evidence were inconsistent either with a statement made by Mrs Meyer to police and/or earlier evidence given by her.
In the course of argument before the judge, counsel for the applicant conceded that the provision of the name of the counselling service in his cross-examination of Mrs Meyer (when she could not remember it in the first trial) was inconsistent. He submitted, however, that the prosecutor should have asked Mrs Meyer in his first cross-examination of her whether she could remember the name of the counselling service, as an answer to that question would have disclosed the inconsistency prior to cross-examination by the applicant’s counsel. This would have then enabled the prosecutor to cross-examine on the topic as part of the leave already granted — and thus eliminate the unfairness that would be created by permitting the prosecutor to again cross-examine Mrs Meyer after cross-examination by the applicant’s counsel.
In respect of the evidence concerning the date of the purchase of the vibrator, counsel for the applicant submitted to the judge that there was no inconsistency between this evidence and any earlier statement or evidence given by Mrs Meyer.
At the conclusion of argument, the judge granted the prosecutor’s application.[24] In her ruling, the judge set out the relevant parts of the evidence and referred to the principles and relevant matters identified by this Court in Meyer [No 1] about the operation of s 38 of the Evidence Act.
[24]DPP v Meyer (a Pseudonym) (Unreported, County Court of Victoria, Judge M Sexton, 21 August 2019) (‘Ruling No 7’).
In relation to the evidence of the name of the counselling service, the judge did not accept that the prosecutor should have asked Mrs Meyer if she remembered the name when questioning her prior to cross-examination by the applicant’s counsel. As to the evidence about the time at which the vibrator was purchased, the judge said that this evidence was inconsistent with the evidence given by Mrs Meyer at the first trial. The judge granted the application in the following terms:
I propose to grant leave to the prosecution to cross-examine [Mrs Meyer] on the inconsistency of her recollection as to the name of the counselling service in trial 2, which was not recalled in trial 1, and on the inconsistency of what she said in her statement about the vibrator as compared to what she said in evidence in cross-examination here. And I further give leave to cross-examine directed to establishing the probability of factual states of affairs in relation to those two matters only.
The relevance of the name of the counselling service arose in the following way. Mrs Meyer gave evidence that in 1990 the applicant confessed to her about an affair he had had with AL. It was described as a consensual, ‘waist-high’ affair, by which it was understood that that such interaction as there had been between the applicant and AL did not involve any contact below the waist. The existence of such an affair and this conversation was disputed by the prosecution. In the first trial, Mrs Meyer gave evidence that the counselling occurred in Croydon, but she could not remember the location of the service, the name of the service nor the name of the counsellor. In Ruling No 6, the judge permitted cross-examination of Mrs Meyer as to why she did not include in her police statement, that in 1990 the applicant had confessed to having this affair with AL. In the cross-examination permitted by Ruling No 6, while challenging Mrs Meyer’s evidence about the conversation and resultant counselling, the prosecutor did not ask Mrs Meyer whether she could remember the name of the counselling service.
When cross-examined, however, by the applicant’s counsel, Mrs Meyer’s evidence concerning the counselling was expanded upon in some detail — including her proffering the name for the counselling service as ‘Relationships Australia or something like that’. The prosecutor sought to cross-examine the inconsistency between a failure to remember the name of the counselling service in the first trial and the name proffered during questioning by the applicant’s counsel.
The relevance of the timing of the purchase of the vibrator was made apparent by the following circumstances. The vibrator was located at the applicant’s home in 2015. It was consistent with the description of the vibrator referred to by AL that was used in the bedroom incident. Evidence that the vibrator was purchased years after the bedroom incident (after the applicant and his wife had moved from the premises in which the offending was alleged to have occurred) was unfavourable to the Crown. Mrs Meyer’s account of when the vibrator was purchased was as follows:
(1)In her statement to police[25] she said that her husband purchased the vibrator, but she could not remember how long ago. She said she could not say whether he bought it while they were in the house where the alleged offending occurred or after they moved to a property in Old Kent Road.
[25]Dated 9 June 2016.
(2) In the first trial, Mrs Meyer gave evidence in cross-examination that she did not have the vibrator when they were living over the road from AL and HK. She said it was purchased after she and her husband moved to Old Kent Road.
(3) In answer to questions asked by the prosecutor in evidence-in-chief in the second trial, Mrs Meyer said that the vibrator was probably purchased in the 2000s, ‘… so in the 2000s at some point. I wouldn’t have a clue. It’s not something that I keep a record of’.
(4) In cross-examination by counsel for the applicant in the second trial, Mrs Meyer was asked and answered the following questions:
And your memory was that, as best you could recall, [the vibrator] was purchased sometime in the 2000s?---Yes.
By [Conor]?---Yes.
And that your evidence was also that you’d had other vibrators before that?
---Yes.
Now, when you were living [opposite AL and HK], did you and [Conor] have a vibrator in the house?---No, we didn’t.
When was a vibrator first purchased? Where were you living firstly?---In Old Kent Road.
And do you have any recollection of how long after you moved into Old Kent Road that a vibrator was first purchased, or not?---Oh, probably early 90s probably.
Thus, in summary, Mrs Meyer first said in her statement that she did not know when the vibrator was purchased; secondly, said in the first trial, that it was purchased after they moved to Old Kent Road; thirdly, said in evidence-in-chief in the second trial, that it was purchased in the 2000s, before saying that she did not know (‘I wouldn’t have a clue’); and fourthly, said in cross-examination by the applicant’s counsel, that it was purchased after they moved to Old Kent Road. The judge permitted cross-examination on the inconsistency between the version given in the police statement and cross-examination during the second trial.
Counsel for the applicant submitted to the judge, and in this Court, that the prosecutor should not have been able to cross-examine Mrs Meyer a second time because cross-examination, after the applicant’s counsel’s cross-examination, constituted an unfairness which could not be (and was not) rectified by allowing further cross-examination by the applicant’s counsel.
In Ruling No 7, the judge said that she was satisfied that the prosecutor could not have made his application in respect of either the name of the counselling service or the date on which the vibrator was purchased earlier than he did, ‘except to interrupt the defence cross-examination as soon as the evidence was given which raised the inconsistency, and that itself might have been objectionable’. We see no error in that conclusion. The judge said that she considered ‘the aspect of unfairness’ and she was ‘satisfied that there [was] no undue [un]fairness to the defence if leave [was] granted’.
In oral argument, counsel for the applicant submitted that the cross-examination permitted by Ruling No 7 was cross-examination that the prosecutor either had leave to conduct pursuant to Ruling No 6, or should have been the subject of the application for leave to cross-examine that gave rise to Ruling No 6.
While one might debate the correctness of that submission, it provides no answer to the question of whether any miscarriage of justice occurred in the course that was actually taken at trial. Her Honour considered these issues in Ruling No 7, and rejected the applicant’s submissions. We are not persuaded that her Honour’s rejection of the applicant’s arguments were other than a permissible exercise of discretion about a question of procedure that had arisen in the ordinary course of the trial. As her Honour observed in relation to the applicant’s submission that the prosecutor could have asked Mrs Meyer in his first cross-examination, whether she remembered the name of the counselling service, such an approach in relation to all potential inconsistencies would ‘certainly lengthen the trial’.
Having looked at the cross-examination of the applicant’s wife for ourselves, we are not persuaded that the judge erred in granting leave to cross-examine on the topics upon which leave was granted. We see no error in her Honour’s consideration or application of the matters required to be taken into account by s 192(2) of the Evidence Act. The judge identified the correct principles to be applied when considering the application under s 38. Her Honour did not act upon a wrong principle; allow extraneous or irrelevant matters to affect her judgment; mistake the facts; or fail to take into account some material consideration.[26] Additionally, in the light of all of the circumstances to which we have referred, it cannot be said that her Honour’s decision was unreasonable or plainly unjust.[27] Ground 3 must be rejected.
[26]Cf House v The King (1936) 55 CLR 499, 505.
[27]Ibid.
Sentence
Following his convictions in the first trial, the applicant was sentenced as follows:
Charge on first indictment
Equivalent charge on second indictment
Offence
Sentence
Cumulation
4
1
Indecently assaulting a girl
6 months
2 months
5
2
Indecently assaulting a girl
2 years
6 months
6
3
Indecently assaulting a girl
2 years
6 months
10
5
Indecent assault
2 years
6 months
18
8
Indecent assault
2 years
6 months
20
9
Sexual penetration of a child aged between 10 and 16
3 years
Base
21
10
Indecent assault
6 months
2 months
22
11
Indecent assault
6 months
2 months
23
12
Indecent assault
4 months
1 month
24
13
Indecent assault
2 years
6 months
25
14
Indecent assault
6 months
2 months
26
15
Indecent assault
8 months
2 months
27
16
Indecent assault
3 months
1 month
Total Effective Sentence
6 years
6 months
Non-parole Period
4 years
After being convicted in the second trial, the applicant was sentenced as follows:
Charge on second indictment
Equivalent charge on first indictment
Offence
Sentence
Cumulation
1
4
Indecently assaulting a girl
6 months
2 months
2
5
Indecently assaulting a girl
2 years
6 months
3
6
Indecently assaulting a girl
2 years
6 months
5
10
Indecent assault
2 years
6 months
7
16
Sexual penetration of a child between 10 and 16 years
4 years
6 months
8
18
Indecent assault
2 years
6 months
9
20
Sexual penetration of a child aged between 10 and 16
4 years and 3 months
Base
10
21
Indecent assault
6 months
2 months
11
22
Indecent assault
6 months
2 months
12
23
Indecent assault
4 months
1 month
13
24
Indecent assault
2 years
6 months
14
25
Indecent assault
6 months
Nil
15
26
Indecent assault
8 months
2 months
16
27
Indecent assault
3 months
1 month
Total Effective Sentence
8 years
1 month
Non-parole Period
6 years
As we have already said, in his application for leave to appeal against sentence, the applicant relies upon a single ground of appeal:
The sentencing judge erred by imposing a more severe sentence after the retrial than was imposed after the first trial.
The difference between the total effective sentence of 6 years and 6 months following the first trial and the sentence of 8 years and 1 month following the second trial arose from the following differences in the underlying sentences:
·while the judge in the first trial sentenced the applicant on charge 20 of the first indictment to 3 years’ imprisonment, on the equivalent charge 9 on the second indictment, he was sentenced to 4 years and 3 months;
·the applicant having been convicted of charge 7 on the second indictment (the jury in the first trial being unable to agree about the equivalent charge 16 on the first indictment) he received a sentence of 4 years, 6 months of which was ordered to be served cumulatively following the second trial; and
·the 2 months ordered to be served cumulatively in relation to charge 25 on the first indictment was reduced to nil in respect of the equivalent charge 14 on the second indictment.
Other than these three differences, the applicant was sentenced following the second trial to the same terms of imprisonment, and the same orders for cumulation were made, as in the first trial.
The difference between the base sentence (for the same offence) invites scrutiny. The offence was sexual penetration of a child aged between 10 and 16 years contrary to s 48(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980. The maximum penalty for that offence was 10 years’ imprisonment. As we have already said, the offending in this case involved the introduction of a vibrator into the vagina of AL.
In the first trial, the applicant was charged in the alternative in respect of this allegation (introducing a vibrator into the vagina of AL) with indecently assaulting a girl contrary to s 55(1) of the Crimes Act 1958. That was the applicable charge if the offending occurred before 1 March 1981; whereas, if the offending occurred on or after 1 March 1981, then the charge was, as we have said, sexual penetration of a child contrary to s 48(1). The maximum penalty for indecently assaulting a girl contrary to s 55(1) was only 5 years.
In sentencing the applicant following the first trial, the judge at that trial appeared to sentence the applicant on the basis that he ‘should have the benefit’ of a divergence between the maximum penalties dependent upon the date upon which the offence was committed.[28] Specifically, his Honour said:
The concession which the prosecution, in my view correctly, made as to the divergence of maximum applicable penalties and the timeframe as to the commission of the offence relative to the charge [scil, change] in legislation and the increased maximum to 10 years for this offence means, if accepted, you should have the benefit of this divergence so as to be subject to the lesser maximum penalty which therefore this charge shares with each of the other indecent assault charges, that is, five years.[29]
[28]DPP v [Meyer] [2017] VCC 461, [3] (‘First Sentencing Reasons’).
[29]Ibid.
In her reasons for sentence, the sentencing judge in the second trial referred to this issue and said that she was required, by s 5(2)(a) of the Sentencing Act 1991, to have regard to the actual maximum penalty ‘as one of the many factors to take into account in arriving at a sentence … that [was] just in all the circumstances’.[30] However, her Honour went on to say:
The previous prosecutor submitted that the lesser penalty of five years’ imprisonment would be highly relevant to the exercise of the sentencing discretion for the sole charge of sexual penetration for which you were to be sentenced in that trial. If by his submission he simply meant that the judge in sentencing you should have regard to the fact that on 28 February 1981 the maximum was 5 years, and a day later, the same offending attracted the maximum of 10 years, and that you were indicted on alternative charges only because of uncertainty surrounding the date of commission of the offence, that would seem to me to be a reasonable submission.
Therefore, while I have regard to the maximum penalty on charges 7 and 9 of 10 years’ imprisonment, on each of those charges I propose to take into account the fact that the maximum penalty doubled from 5 to 10 years for the types of offending alleged in those charges over the time period on the indictment, and that you faced this ‘divergence in penalty’ because the prosecution had probably no choice but to put charges of indecent assault and sexual penetration in the alternative because of the uncertainty as to whether the act occurred before or after 1 March 1981.[31]
[30]DPP v [Meyer] [2019] VCC 2175, [40] (‘Second Sentencing Reasons’).
[31]Ibid [43]–[44] (emphasis in original) (footnotes omitted).
In relation to the issue of sentencing on a subsequent trial, the judge referred to the applicable principles in the following terms:
The sentencing judge on a re-trial must exercise [her or his] own judgement and [her or his] own discretion, having regard to the offence committed, the circumstances of its commission, the antecedents of the prisoner and his personal circumstances, the sentence imposed on [earlier] conviction, and the principle that unless there is some strong ground, there should not be a disparity between the sentences imposed on the first and [subsequent] occasions; and
If, having regard to the [earlier] sentence and policy considerations, and all other factors relevant to sentence, the [subsequent] judge is of the opinion that the [earlier] sentence was manifestly inadequate or inappropriate, the [subsequent] judge must act on that opinion.[32]
[32]Ibid [67].
The judge said that, after applying the principles for sentencing following a retrial, she was not of the opinion that the sentences imposed by the original sentencing judge were manifestly inadequate or inappropriate.[33] She said that while she might have imposed higher sentences if unfettered by the previous sentences, any different sentence imposed by her ‘would have been within the range of appropriate sentences, as were the previous sentences’.[34] Thus, the judge then said that she intended to impose the same sentences on each charge that the previous sentencing judge had imposed, but with two exceptions. The two exceptions were:
(1)First, the principles that apply to resentencing after a retrial did not apply in respect of charge 7 on the second indictment, as that was the first occasion upon which the applicant fell to be sentenced on that charge.
(2)Secondly, the judge would sentence the applicant on charge 9 having regard to the actual maximum penalty of 10 years (rather than the maximum penalty of 5 years for the alternative charge).[35]
[33]Ibid [70].
[34]Ibid.
[35]Ibid [70]–[71].
It seems to us that the judge imposed a different (and higher) sentence on charge 9 because she was persuaded that the first sentencing judge had sentenced the applicant on that charge on the basis that ‘five years was the maximum penalty to be applied’.[36] With respect, we do not think that the first sentencing judge made any such error. In sentencing the applicant, the first sentencing judge, perhaps infelicitously, said that the applicant ‘should have the benefit’ of the change in maximum penalty ‘so as to be subject to the lesser maximum penalty’.[37] We do not read the first sentencing reasons as suggesting that his Honour sentenced on the basis of an incorrect maximum penalty in respect of the offence. Indeed, we think that there was little difference in the approach by the two sentencing judges to the change in the maximum penalty.[38]
[36]Ibid [42].
[37]First Sentencing Reasons [3].
[38]First Sentencing Reasons [3]; Second Sentencing Reasons [44].
As has been said before, a judge at a second trial should be extremely reluctant to look for, and act upon, supposed specific error said to be manifested in the remarks of a prior sentencing judge.[39] In our view, the judge erred in imposing a different sentence on charge 9 from that which had been imposed following the first trial (3 years). To the extent that she did so because she concluded that there was error that was manifested in the earlier sentencing remarks, we also disagree. Accordingly, we would grant leave to appeal, allow the appeal, set aside the sentence on charge 9 and resentence the applicant to a term of imprisonment of 3 years on that charge.
[39]Murdoch (a Pseudonym) v The Queen (2013) 40 VR 451, 456 [13] (Redlich and Coghlan JJA), 488 [166] (Priest JA). See also R H McL v The Queen (2000) 203 CLR 452, 475–6 [72].
Setting aside the sentence on charge 9 reopens the sentencing discretion. In order for the sentence to be internally consistent, it is necessary to set aside the sentence on charge 7. To the extent that the applicant submitted that any sentence imposed on charge 7 should not have involved any additional period in custody, we reject that submission. An appropriate sentence (consistent with the sentences imposed on the other charges) must now be imposed with respect to charge 7. We would resentence the applicant on charge 7 to a term of imprisonment of 3 years and order (as the sentencing judge did) 6 months of this sentence to be served cumulatively upon the base sentence and the other sentences imposed.
Additionally, we see no basis for why the applicant should not be required to serve 2 months of the 6 month sentence imposed on charge 14 cumulatively on the base sentence and the other sentences imposed — this being the order for cumulation made by the original sentencing judge. We agree, however, with the second sentencing judge that the other sentences and orders for cumulation should be reimposed — resulting in a total effective sentence of 7 years.
So far as the non-parole period is concerned, we see no reason why the new non-parole period should not bear the same relationship to the head sentence as that ordered by the first sentencing judge. In the circumstances, we will fix a non-parole period of 4 years and 4 months.
Conclusion
The application for leave to appeal against conviction will be refused. The application for leave to appeal against sentence will be granted. The appeal against sentence will be allowed and the applicant will be resentenced as follows:
Charge on second indictment
Offence
Sentence
Cumulation
1
Indecently assaulting a girl
6 months
2 months
2
Indecently assaulting a girl
2 years
6 months
3
Indecently assaulting a girl
2 years
6 months
5
Indecent assault
2 years
6 months
7
Sexual penetration of a child between 10 and 16 years
3 years
6 months
8
Indecent assault
2 years
6 months
9
Sexual penetration of a child aged between 10 and 16
3 years
Base
10
Indecent assault
6 months
2 months
11
Indecent assault
6 months
2 months
12
Indecent assault
4 months
1 month
13
Indecent assault
2 years
6 months
14
Indecent assault
6 months
2 months
15
Indecent assault
8 months
2 months
16
Indecent assault
3 months
1 month
Total effective sentence
7 years
Non-parole period
4 years
4 months
- - -
1
7
0