Gibson (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0037

TIMOTHY GIBSON (A PSEUDONYM)[1]	Applicant
v
THE KING	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 pseudonyms in place of the names of the applicant, victims and other family members.

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JUDGES:	NIALL, MACAULAY and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2024
DATE OF JUDGMENT:	14 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 33
JUDGMENT APPEALED FROM:	[2022] VCC 2172 (Judge Hogan)

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CRIMINAL LAW – Appeal – Conviction – Sentence – Indecent act with child under 16 – Indecent assault – Gross indecency with person under 16 – Incest – Applicant found guilty of five charges of indecent act with child under 16 (first indictment) and one charge of indecent act with child under 16, one charge of gross indecency with person under 16, two charges of incest and four charges of indecent assault (second indictment) – Sentenced to 14 years’ imprisonment with a non-parole period of 10 years – Whether trial judge misdirected jury as to the use of tendency evidence resulting in a substantial miscarriage of justice – Whether various directions and remarks by trial judge amounted to an aggregation of errors resulting in a substantial miscarriage of justice – Whether orders for cumulation produced total effective sentence and non-parole period that are manifestly excessive – Trial judge’s misdirection could not have resulted in a different outcome and did not result in a substantial miscarriage of justice because it was swamped by correct directions – Trial judge’s various directions and remarks were not errors and did not result in a substantial miscarriage of justice – Sentence not manifestly excessive – Leave to appeal refused.

Crimes Act 1958, ss 44, 47, 50, 52.

McKell v The Queen (2019) 264 CLR 307, Huxley v The Queen [2023] HCA 40, applied; Bugmy v The Queen (2013) 249 CLR 571, R v Verdins (2007) 16 VR 269, R v Bauer (2018) 266 CLR 56, considered; Hargraves v The Queen (2011) 245 CLR 257, R v Murray (1987) 11 NSWLR 12, discussed.

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Counsel
Applicant:		Mr J Connelly
Respondent:		Ms N Rogers SC
Solicitors
Applicant:	Ms L Conwell, Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
MACAULAY JA
T FORREST JA:

On 14 February 2022, the applicant pleaded guilty in the County Court to the five charges set out on indictment L11222880.1 (‘the first indictment’).
On 28 February 2022, following a ten day trial in the County Court, the applicant was convicted of eight charges on indictment L1090081 (‘the second indictment’).
On 8 December 2022, the applicant was sentenced as set out below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment L11222880.1
1	Indecent act with child under the age of 16[2]	10 years’ imprisonment	9 months’ imprisonment	2 months
2	Indecent act with child under the age of 16	10 years’ imprisonment	1 year and 4 months’ imprisonment	Base
3	Indecent act with child under the age of 16	10 years’ imprisonment	6 months’ imprisonment	1 month
4	Indecent act with child under the age of 16	10 years’ imprisonment	1 year’s imprisonment	3 months
5	Indecent act with child under the age of 16	10 years’ imprisonment	9 months’ imprisonment	2 months
Total Effective Sentence for Indictment L11222880.1:		2 years’ imprisonment to be served cumulatively upon the sentence imposed on Indictment L10900881.
Indictment L10900881
1	Indecent assault[3]	5 years’ imprisonment	2 years and 6 months’ imprisonment	9 months
2	Indecent assault	5 years’ imprisonment	2 years and 6 months’ imprisonment	9 months
3	Indecent assault	5 years’ imprisonment	2 years and 6 months’ imprisonment	9 months
4	Indecent assault	5 years’ imprisonment	2 years and 6 months’ imprisonment	9 months
6	Gross indecency with person under sixteen[4]	3 years’ imprisonment	10 months’ imprisonment	3 months
8	Incest[5]	20 years’ imprisonment	5 years and 6 months’ imprisonment	Base
9	Incest	20 years’ imprisonment	5 years’ imprisonment	2 years and 6 months
10	Indecent act with child under the age of 16[6]	10 years’ imprisonment	2 years and 6 months’ imprisonment	9 months
Total Effective Sentence for Indictment L10900881:		12 years’ imprisonment to be served cumulatively upon the sentence imposed on Indictment L11222880.1.
Total Effective Sentence for both indictments:		14 years’ imprisonment
Non-Parole Period:		10 years
Pre-sentence Detention Declared:		283 days
Section 6AAA Statement for Indictment L11222880.1:		3 years’ imprisonment with a non-parole period of 2 years
Other Orders: 1. Pursuant to s 6F Sentencing Act 1991, the offender is sentenced as a serious sexual offender in respect of charges 3, 4 and 5 (Indictment L11222880.1) and charges 1, 2, 3, 4, 6, 8, 9 and 10 (Indictment L10900881). 2. Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is Life.

[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 2006.

[3]Contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.

[4]Contrary to s 50(1)(a) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.

[5]Contrary to s 52 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.

[6]Contrary to s 47 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.

The applicant seeks leave to appeal his convictions on the second indictment on the following grounds:
Ground One
The learned trial judge misdirected the jury on how it could use tendency evidence.
Ground Two
An aggregation of errors in the judge’s directions to the jury amounted to a substantial miscarriage of justice.

FACTUAL OVERVIEW

First Indictment

In 2007, the applicant met the complainant, Abby Von Dyk, through her friendship with one of his biological daughters, Rachel Gibson. They were neighbours. Over time the applicant and his then wife, Margaret Daniels, had become friends with the complainant’s mother and had begun to share responsibility for driving the complainant and Rachel to school. The complainant was 14 years old at the time of the offending.

Charges 1 and 2

Charges 1 and 2 occurred between 1 March 2007 and 30 June 2007.
On one day during this period, the applicant put his hands down the inside of the complainant’s jeans in the hallway of her home (Charge 1).
On another day, the applicant asked the complainant to ‘come and give me a big hug’ and, as she hugged the applicant, he nibbled her ear, put his hands down her pants, and rubbed and pinched her. The applicant asked for another hug later on that day and proceeded to undertake the same acts for a second time. On a third occasion also on the same day, when the complainant was eating in the kitchen, the applicant said to her ‘you won’t come over here and give me a hug’. The complainant then did give the applicant a hug and, as she pulled away, he nibbled her ears and put his hand down her pants. These three occasions constitute Charge 2.

Charge 3

On a day between 5 May 2007 and 12 May 2007, the complainant and her mother attended a birthday party for the applicant’s son at the applicant’s home. The complainant left the party and returned to her home. The applicant entered the complainant’s home, asked for a hug and then rubbed her legs under her skirt and over her bottom. The complainant’s mother was still at the applicant’s home while this occurred.

Charge 4 and 5

Charges 4 and 5 occurred between 12 May 2007 and 30 June 2007.
On one occasion during this period, the applicant entered the complainant’s home and sat opposite her in the lounge room. She gave the applicant a hug and the applicant then proceeded to put his hand down her pants and lifted her up and pinched and grabbed her bottom (Charge 4). The applicant left the complainant’s home and returned with a video game, which he gave to her.
On another occasion, the applicant was in his lounge room with the complainant. She was having something to eat and the applicant asked her ‘don’t you love me anymore?’. The applicant then instructed her to ‘just come over here and give me a hug and I’ll leave you alone’. The complainant went over to where the applicant was sitting and gave him a hug. The applicant nibbled her ear and put his hands down her pants and on her bottom (Charge 5).

Second Indictment

The charges on the second indictment were in respect of two further complainants. The events relating to those charges took place around two decades before those relating to the charges on the first indictment. The complainant in Charges 1 to 4 and 8 to 10 was the applicant’s stepdaughter, Brenda, the daughter of the applicant’s partner and later wife, Margaret Daniels. Brenda was born in October 1976. The applicant’s offending against her took place from when she was approximately 10 years old until just before her sixteenth birthday.
The complainant in Charge 6 is Leila, another of the applicant’s biological daughters. She was aged about 12 to 13 years at the time of the applicant’s offending against her.
The allegations which underpinned the charges on the second indictment were as follows.

Charges 1, 2, 3 and 4

Charges 1, 2, 3 and 4 occurred between 30 October 1986 and 22 August 1988.
On one occasion during this period, the applicant told the complainant that she would have to allow him to lick her genitals in order for the family to get a swimming pool. The applicant proceeded to lick the complainant’s vagina (his tongue went inside her vagina) as she lay on her bed (Charge 1). This offence was said to have occurred when Brenda was 10 or 11 years old.
On another occasion in the same time period, the applicant said words to the effect that the complainant had to let him lick her genitals in order to have her school friends over to play. The applicant went inside the complainant’s bedroom, knelt beside her bed and licked her vagina (Charge 2).
On a further occasion in the same time period, the complainant had wanted to play with a go-kart. The night before it was due to happen, the applicant imposed a condition that the complainant must allow him to perform oral sex upon her. The applicant went into the complainant’s bedroom and licked her vagina (Charge 3).
Also in this time period, the applicant again performed oral sex on the complainant. On this occasion, the applicant had bought Reebok shoes that he knew the complainant wanted. The applicant gave the shoes to the complainant in her bedroom, performed oral sex on her and then left the room (Charge 4). The complainant was in grade 6 and about 12 years old at the time. Her mother was having a shower while this occurred.

Charge 6

On one occasion between 22 August 1988 and 31 March 1990, the complainant, Leila, was staying at the applicant’s home. The applicant stood in the archway of the room in which the complainant was sleeping and instructed her to show him her vagina. The complainant took her pants off. The applicant said that he ‘couldn’t see anything’ and instructed the complainant to ‘open [her] private area so [he could] see’. The complainant was aged about 12 to 13 years at the time of this offending.

Charge 8

On or around 24 July 1990, the applicant penetrated the complainant, Brenda’s, vagina with his penis. The offending took place in the complainant’s bedroom where he had told her to lie on the floor and caused her to feel pain. The applicant’s wife was in hospital at the time. This offending was alleged to have occurred after the applicant watched the complainant perform oral sex on a 17 year old colleague of the applicant, who the applicant had invited to his home and who by the time of the offending had left. At trial, the colleague ultimately denied that this occurred.

Charge 9

When the complainant, Brenda, was aged 13 or 14, the applicant penetrated her anus with his penis. The complainant had just returned from the outside toilet at the family home and the applicant approached her and pulled down her shorts and underwear. The applicant then inserted the tip of his erect penis into the complainant’s anus. The complainant stated that it hurt and she said ‘oww’. The applicant then put his penis back in his pants, went back outside and allowed the complainant to re-enter the home.

Charge 10

The applicant entered Brenda’s room, sat on her bed and then pulled up her nightie and licked her vagina. This occurred when she was 15, almost 16. The complainant’s mother was in the shower at the time.
This is a very bald factual summary; if necessary, we may descend into more detail in our analysis of the grounds of appeal.
CONVICTION APPEAL: PROPOSED GROUND 1
This ground concerns a passage in the judge’s charge to the jury about the use they ought make of tendency evidence relevant to the complainant, Brenda, in the trial of the second indictment.
It is unnecessary to recite the full tendency notice. As the discussion about the extent of the tendency evidence developed, it was ultimately agreed that the relevant evidence would be confined to the charged acts alleged by Brenda and not those alleged by Leila. The evidence led in support of charges 1, 2, 3, 4, 8, 9 and 10, all relating to Brenda, was agreed to be cross-admissible, and is not the subject of any complaint on this appeal. That evidence is broadly set out from para [16] to para [24] of these reasons. The tendency was said to be that the applicant had a tendency to have a sexual interest in Brenda and to act upon that interest.
The impugned passage of the judge’s charge reads as follows:
[The Prosecutor], in his final address, invited you to find, in relation to the evidence put before you on the charges related to [Brenda], that they demonstrated a tendency or pattern of behaviour of the accused towards [Brenda]. He would lick [Brenda]’s vagina where there was a particular incentive involved, such as getting a pool or having friends over or using the go cart or getting Reebok runners. Later, in effect, he would just perform sexual acts as he pleased, which progressed to vaginal penetration and anal penetration and, again, licking of her vagina. [The Prosecutor] said he would take the opportunity to engage in these acts when other people were not around.
The prosecution case relating to the charges concerning [Brenda] is that the accused demonstrated an improper sexual interest in [Brenda] and a preparedness to act on that interest. That is what is called tendency evidence. The prosecution says the evidence that [Brenda] has given in relation to the charged matters on the indictment can be used by you to be satisfied that the accused had an improper sexual interest in [Brenda] and a preparedness to act on that interest.
It is part of ordinary human experience that, where a person has a sexual interest in another and has acted on that sexual interest and the opportunity presents itself to do so again, he will seek to gratify his sexual interest by engaging in sexual acts of various kinds with that person. That is well recognised by the highest court in this land.[7]
[7]Emphasis added.
We suspect that these emphasised words found their way into the judge’s charge via the High Court case of R v Bauer (‘Bauer’) where at para [51], the Court said:[8]
The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the ‘very high probative value’ of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.[9]
[8](2018) 266 CLR 56, 83 [51] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40.
[9]HML v The Queen (2008) 235 CLR 334, 423 [272] (Heydon J).
It will be immediately apparent that the High Court in this passage was explaining the juridical basis of the cross-admissibility of evidence of uncharged acts in sexual offences. The Court was not proposing some form of model jury direction on cross-admissibility nor could it have been. The question of whether an accused, who has acted on a sexual interest in the past, has done so again on a particular charged occasion is obviously a question for the jury. It could not be answered by judicial direction. By incorporating the word ‘will’, the judge’s direction was, on its face, directing the jury that if the accused has the relevant tendency, he ‘will’ act upon it again, and that is part of ordinary experience and endorsed by the ‘highest court in the land’. This, viewed in isolation, could be construed as a direction to the effect that if the jury were satisfied of one or more of the charged offences, they could be satisfied of the rest without further consideration. This is obviously erroneous.
Had the judge used the word ‘may’ or the phrase ‘is more likely to’, the direction would have been unimpeachable, as were the other conscientious tendency directions.
The applicant contended in discussion on the hearing of the application for leave to appeal that this was an error or irregularity in the trial, it was specifically uncorrected, and was of sufficient magnitude to justify the conclusion that it had occasioned a substantial miscarriage of justice. The applicant further contended that the judge, by use of the pronoun ‘he’ and the reference to the ‘highest court in the land’, had elevated this part of her tendency directions above the other more orthodox tendency directions. Counsel for the applicant also pressed that the use of the word ‘gratify’ was particularly forceful for a jury.
The respondent contended that, whilst the use of the word ‘will’ was ‘infelicitous’, it was swamped by correct directions as to the use that could be made of the evidence. The respondent contended that viewed in its full context the impugned passage did not amount to an error or irregularity in the trial, and if it did there was no realistic prospect that, absent the passage, there may have been a different outcome. Thus there was no serious miscarriage of justice.
The paragraphs set out below immediately precede the impugned directions emphasised above in para [28] of these reasons.
Now, the next direction I give you is what is called a tendency direction. This relates only to the charges on which [Brenda] is the complainant. That is, Charges 1, 2, 3, 4, 8, 9 and 10. It does not relate to Charge 6, referable to [Leila].
The direction that I am about to give you is totally different from the one that I have already given you about the way in which you could use the evidence of other misconduct alleged against the accused man which is not the subject of any charge. The direction I am about to give you relates only to those actual charges relating to [Brenda], of which you would need to be satisfied beyond reasonable doubt before you could convict the accused man.
The judge then recited the impugned directions emphasised above in para [28] of these reasons.
The following jury directions followed immediately afterwards.
I have told you that you must consider each of the charges on the indictment separately in relation to the evidence that relates to that charge. That is your duty. You must do that. However, I do give you this additional direction of law: If you are satisfied beyond reasonable doubt that the accused has committed any one of the seven charges relating to [Brenda], that is, Charge 1, 2, 3, 4, 8, 9 and 10, you are entitled, if you wish, to use your satisfaction on that charge to find that the accused did have a tendency to be sexually interested in [Brenda] and to act on that sexual interest and, thus, you can use that, if you wish, to find that it is more likely that the accused committed any one of the other charges.
You are permitted to reason in this way in relation to the actual charges that relate to [Brenda] and add that process of reasoning, tendency reasoning, to the other evidence before you about a particular charge in order to decide whether you are satisfied beyond reasonable doubt of the guilt of the accused on that charge. You must keep the tendency reasoning related to the evidence in perspective. It is only part of what the prosecution asks you to rely upon in support of the charges that it has brought against the accused in relation to [Brenda]. You can only find the accused guilty of any particular charge if you are satisfied beyond reasonable doubt of his guilt based on the whole of the evidence.
The tendency reasoning process I have described is reasoning for the limited purpose that I have described, namely, that if you are satisfied beyond reasonable doubt that the accused committed any one of the seven charged offences relating to [Brenda], you can use that to reason that he has demonstrated an improper sexual interest in [Brenda] and has acted upon it and, so, is more likely to have committed the other charges. That is the way in which you may use this tendency evidence or tendency reasoning, not for any other purpose.
The direction that I have just give[n] you about tendency reasoning applies only to the charged offences on the indictment relating to [Brenda]. You must not use that style of reasoning in relation to any of the other evidence about sexual misconduct which is alleged, which you have heard from [Brenda], that is not part of an actual charge on the indictment. You will recall that I gave you a direction about what use you could make of, if you wished, that other evidence about sexual misconduct which is not part of any charge on the indictment. That direction that I gave you is completely different from the purpose I have just described in relation to the tendency reasoning, which is confined to the actual charged offences on the indictment relating to [Brenda].
You will recall that the limited purpose for which the other evidence of sexual misconduct that is alleged by [Brenda] (that is not the subject of any charge) may be used to understand the context or background or relationship between the accused and the complainant, [Brenda], to put the charged offences in a realistic setting, if you like. So you may use that other misconduct evidence to understand such things as [Brenda]’s state of mind or conduct, such as why she may have submitted to the alleged acts, which she claims she did; or why she did not complain; or the accused’s state of mind or conduct, why he felt, for example, that he could get away with committing the acts that are alleged; or to dispel any false impression that you might otherwise have formed that the charged acts on the indictment come out of the blue.
So, if you find another act or acts of sexual misconduct (which is or are not the subject of any charge) did occur, then that is the limited background or context way in which you may use such acts or acts which you find did occur. You must not use them in the tendency reasoning way which I have described in relation to the actual charged acts relating to [Brenda].
So, the prosecution case is that the evidence relating to the charged acts shows that the accused had a tendency to be interested sexually in [Brenda] in an improper sexual way and to act on it, and that can help you to decide whether he is guilty of the charged acts. If you are satisfied beyond reasonable doubt on one charge, that can help you to decide in that tendency reasoning way whether he is guilty of another of the charged acts, bearing in mind that you have to be satisfied beyond reasonable doubt taking into account all of the evidence before you in relation to each charge.[10]
[10]Emphasis added.

It is clear to us that her Honour’s adaptation of para [51] of Bauer to her jury directions was unfortunate and further that the additional rider relating to ‘the highest court in the land’ gave some emphasis to this unfortunate adaptation.
It is equally clear to us, however, that the impugned direction was immediately succeeded by repeated directions that stated exhaustively the correct use to which the tendency evidence may be put. These are the italics in the lengthy passage set out above in para [36] of these reasons.
The entirety of the tendency directions satisfy us that the inappropriate use of the modal auxiliary verb ‘will’ would not have led the jury into error. Had a redirection been sought, the error was clearly correctable by an appropriate redirection, in exactly the same form that was given immediately after the inappropriate passage. What followed from the judge after the reference to ‘will’ served as an adequate corrective to what preceded it.
In our view, read as a whole, the jury were properly directed as to how they might use tendency evidence and the misstatement did not amount to an error or irregularity in the trial.[11]
[11]Huxley v The Queen [2023] HCA 40, [40]–[44]; Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44.
We are fortified in that view by the fact that experienced and competent defence counsel, imbued with the atmosphere of the trial, did not bring the misstatement to the judge’s attention by way of exception. Similarly, the equally experienced and competent prosecutor, it seems, did not pick up on the error either.
Further, under this ground the applicant has not satisfied us that, absent the impugned passage, a different outcome may have resulted. It follows that we are not satisfied that there has been a substantial miscarriage of justice.
Conviction appeal proposed ground 1 must be rejected and leave to appeal is refused in respect of ground 1.

CONVICTION APPEAL: PROPOSED GROUND 2

In this proposed ground the applicant contends that the cumulative effect of a number of asserted errors, together with the error identified in proposed ground 1, amounted to a substantial miscarriage of justice.

Murray Direction

The applicant argues that the following passage in the judge’s charge contained an error or irregularity in the trial.
This is really a comment by me but I do not think either counsel take issue with it. If you were to accept what [Brenda] said about each of the charges relating to her and to accept what [Leila] said about what the accused made her do, then it seems that you’ll be satisfied beyond reasonable doubt of the particular offence. Whether you do accept the evidence of each of those witnesses is entirely a matter for you to determine on the whole of the evidence. As I have said, it is not a case where the defence is that a particular element of a particular charge is not made out, but rather that the particular offences simply did not occur.
This comment, the applicant contends, was missing a requirement that the jury must accept the evidence of the two witnesses beyond reasonable doubt before they could proceed to conviction. The applicant further submits that the Murray direction,[12] given in NSW where there is only one witness asserting the commission of a crime, provides an example of the sort of care required when instructing a jury about a complainant’s account. A Murray direction is not statutorily required in Victoria and no such direction was sought by counsel under s 12 of the Jury Directions Act 2015.
[12]See R v Murray (1987) 11 NSWLR 12, 19 (Lee J).
We consider there is little substance to this part of proposed ground 2. Her Honour’s impugned remarks were directed to the fact that the only evidence in the prosecution case supporting the Leila charge (Charge 6) came from Leila and similarly, the only evidence of the Brenda charges (Charges 1 to 4 and 8 to 10) came from Brenda. The only issue in both the Brenda charges and the Leila charge was whether the sexual misconduct that evidenced the charges actually occurred.
The judge repeatedly reminded the jury through the preliminary remarks and her charge that the prosecution case bore the onus of proof and that each element of the charge had to be proven beyond reasonable doubt. Immediately before the impugned passage reproduced above, the judge directed the jury as follows:
Having taken you to all of those paragraphs of legal directions, as I said earlier, the real issue before you is whether the criminal acts alleged in a particular charge did or did not occur. There is not some argument that a particular element of an offence is not made out. Although, obviously, you would have to be satisfied beyond reasonable doubt that each element is proven.[13]
[13]Emphasis added.
Shortly thereafter, her Honour directed the jury on the topic of inferences as follows:
Obviously if it’s an element of an offence or the guilt of the accused that you’re drawing an inference about, you have to be satisfied beyond a reasonable doubt. That means that you would need to be satisfied that the facts upon which your inference was based have been proven beyond reasonable doubt, and that the only reasonable inference to be drawn from those facts is one of guilt. All of this flows from the proposition that you could not convict the accused man unless you were satisfied of his guilt beyond reasonable doubt. If an inference other than guilt is reasonably open, then you would have a reasonable doubt, and your verdict would be one of not guilty. So I just impress upon you that this is a process of reasoning. It’s not about guessing or speculating.
In all, there are over forty references in the judge’s charge to the criminal standard of proof. Further, a number of sheets were provided to the jury which set out the elements of the charges making it abundantly clear that the prosecution needed to prove each element beyond reasonable doubt.
We consider that there is no prospect that the jury did not understand that they must be satisfied beyond reasonable doubt as to each element of each offence and, in the context of this case, there is no prospect that the jury was somehow confused or mistaken as to the care with which they must examine the evidence before reaching that state of satisfaction.

Motive to lie

The applicant then complains about remarks made by her Honour concerning the complainant, Brenda’s, ‘motive to lie’. The argument advanced is that the italicised words in the following passage ‘falsely offer[ed] a binary choice between the jury’s common sense and life experience, against the defence’s suggestion the “she’s just made all this up” because she hates he accused’.
And then there was a second allegation of other misconduct which is not the subject of charge 2 or any other charge, that [Brenda] was compelled by the accused to give him a headjob. In addition, she said that, when the accused licked her vagina, ‘he put his fingers inside my vagina.’ That is transcript 60. [Defence counsel] cross examined [Brenda], and she agreed that there had been nothing in her two statements to police or said by [Brenda] at the committal, that is the preliminary hearing at the Magistrate’s Court, about him putting fingers in her vagina. In her evidence before you, she agreed it was the first time she had mentioned it. That was p107. [Defence counsel] said that this is an example of her story growing, and you can’t find her to be a credible witness.
So I’ll just take you to what [Brenda] said at p106 and 107 of the transcript. So this is from line 17 onwards, transcript 106. [Defence counsel] said, ‘Do you agree that today and yesterday is the first time that you’ve mentioned anything about fingers in your vagina?’ [Brenda] answered, ‘The more you keep making me recollect things is the more that you’re going to get out. So I don’t understand where you’re going with that.’ And [defence counsel] persisted with her statements about – questions about having made two statements to police, and how the police had taken the time to make sure she had time to sign them, and [Brenda] said in response, ‘When it’s a lifelong thing of being sexually abused, you don’t recall everything. The more someone tries to bring that memory out, the more you’re recollecting it.’ So that is what she said in response to the fact that it was the first time that she had mentioned it.
[The prosecutor], in his address to you, invited you to find that, where you have serial and continuing offending of the nature that the accused allegedly committed upon [Brenda], it’s entirely understandable that there might be differences in her versions. He submitted that experience shows that truthful witnesses can get certain things wrong and out of order, and that trauma can affect people in different ways.
So, members of the jury, weigh up her explanations and decide whether they accord with your common sense and life experience, or whether she’s just made all this up because, as suggested by the defence, although they don’t have to prove a motive, she hates the accused.[14]
[14]Emphasis added.
We consider this argument, which was not pressed at the oral hearing of this application, is without substance. The impugned passage occurred in the context of the judge addressing the jury about certain uncharged acts, which were mentioned for the first time in Brenda’s evidence-in-chief as it concerned Charge 2. The passage amounts to an invitation to the jury to scrutinize this aspect of the evidence with reference to logic, common sense and life experience and to remind the jury that the defence, who suggested a motive, did not have to prove such a motive. It did not undercut the defence submissions on motive to lie and did not reverse the burden of proof on this or any issue.

Entering the fray

The final complaint under this ground is that, in making a comment to the jury about the complainant’s ‘motive to lie’, the judge impermissibly ‘enter[ed] the fray’ as an advocate for the prosecution. Again, we shall set out the italicised impugned passage in its surrounding context.
[Defence counsel] also relied upon […]’s evidence where she said that [Brenda] was frustrated when she felt her mum did not believe her when she told her that [the applicant] had touched her, and she described that [Brenda] sort of gave up and said, ‘I said it because I hated him.’ Page 239 to 240. So [Defence counsel] invited you to find, on the basis of the evidence to which I’ve just drawn your attention, that [Brenda] did hate the accused, and her hatred of him is her motive for making up these allegations for lying about him, which of course is what the defence case is.
So, members of the jury, let me impress upon you that, in line with the fact that the accused does not have to prove anything at all, the accused certainly does not have to prove a motive for why a prosecution witness might not be telling the truth. So, even if you accepted that [Brenda] did hate the accused, you would still need to consider whether that affected the evidence she gave so that you could conclude that she’s lying. You have to take into account the whole of the evidence.
Now, this is a comment by me, and I want to make it abundantly clear, as I hope I have made from the outset of the trial, that anything that I might say about any facts is not binding on you in any way. You can use it if it helps you. You are not obliged to use it. You can completely discard it if you do not agree with it. It is not like a direction of law.
But just say, for example, you did find that [Brenda] did hate the accused, does that necessarily mean that she has lied or made up these allegations? Could the two factors co-exist? In other words, might she hate the accused for the very reason that he has offended against her. Does the fact that you might find that she hated him necessarily mean that she has not told you the truth? As I say, I want to make it abundantly clear, that is a comment. It is just something for you to consider if it helps you. It may not help you. It is not binding on you.[15]
[15]Emphasis added.
The challenged paragraph is not an argument for the prosecution, nor is it ‘entering the fray’. It amounts to no more than, on the issue of ‘motive to lie’, an exhortation to the jury to consider whether hatred (if it existed) produced a false account or whether it was the product of the offending misconduct. In other words, if Brenda truly did hate the applicant, the jury should consider carefully the genesis of that hatred before acting upon it.
We consider the impugned passage was an appropriate use of a trial judge’s ‘broad discretion’[16] to comment on the facts and was compatible with the judge’s fundamental duty to ensure a fair trial by ensuring that facts and arguments based on those facts are put ‘accurately and fairly’[17] to the jury. We are unable to discern any flavour of the judge ‘entering the fray’ in this passage or in its surrounding context.
[16]See McKell v The Queen (2019) 264 CLR 307, 312–13 [3] (Bell, Keane, Gordon and Edelman JJ); [2019] HCA 5 (‘McKell’) citing B v The Queen (1992) 175 CLR 599, 605 (Brennan J); [1992] HCA 68.
[17]See McKell (2019) 264 CLR 307, 313 [3] (Bell, Keane, Gordon and Edelman JJ); [2019] HCA 5 citing Domican v The Queen (1992) 173 CLR 555, 561 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1992] HCA 13. See also Broadhurst v The Queen [1964] AC 441, 446.
The various proposed grounds and sub-grounds of appeal all relate to various directions or remarks by the judge during her charge. No objection was taken to any of these assorted errors at trial. Viewed globally, we consider the charge was a model of balance and fairness. There is no hint of advocacy.
Conviction appeal proposed ground 2 must be rejected and leave to appeal is refused in respect of ground 2.

Conclusion

The application for leave to appeal against conviction is refused.

SENTENCE APPEAL: PROPOSED GROUND 1

The applicant was sentenced on the two indictments as set out above in para [3].
The applicant seeks leave to appeal against sentence on the following ground.
Ground 1
The orders for cumulation produced a total effective sentence and non-parole period that are manifestly excessive.
The factual basis for the first indictment is contained within para [5] to para [12] of these reasons.
The factual basis for the second indictment is set out at para [16] to para [24] of these reasons.
The applicant pleaded guilty to all offences on the first indictment.
The applicant’s proposed ground of appeal is solely directed to the cumulation as between counts on both indictments, and as between the total effective sentence and non-parole period on both indictments.

The applicant’s circumstances

The applicant is now aged 72 years. The applicant’s childhood circumstances were particularly disadvantaged. He was conceived while his father was in prison. He grew to the age of 18 thinking the person responsible for his care was his sister. He discovered that she was his mother and that eight young adults that he believed to be his siblings were in fact his uncles and aunts.
The applicant ran away from home, was brought before the Northcote Magistrates’ Court in November 1966 as a child ‘likely to lapse into a career of vice and crime’, was made a ward of the state and placed at Turana Youth Training Centre (‘Turana’) at 15 years of age. He did well at Turana achieving good standards at the school and generally. He was transferred to a Presbyterian Boys Hostel in Hawthorn at about 16 years. It does not appear that his schooling extended beyond his stay at Turana. He then joined the workforce for many years performing largely manual jobs until 2006. His last job was as a crew leader at Avalon Airport from 1999 to 2006. He suffered an apparently serious back injury after falling from a ladder in 2006. He thereafter received a Disability Support Pension until becoming eligible for the Aged Pension in about 2016.
In about 2008, the applicant made a civil claim against Turana alleging bullying, assaults, and ritual humiliation involving taunting and sexual and physical abuse. His claim was accepted under the National Redress Scheme arising out of the Royal Commission into Institutional Responses to Child Sexual Abuse.
The applicant married at age 20 and has two children from that relationship: Leila and a son. He separated from that relationship in about 1985. Subsequently, he cohabited with Margaret Daniels. As we have said, Brenda is Margaret’s daughter from a previous relationship. Margaret and the applicant married and had three further children from this relationship: Rachel, another daughter and a son. As at the date of sentencing, the applicant had effectively no contact with Margaret since he was charged in 2020, and very little contact with other family members.
The applicant has been diagnosed with post-traumatic stress disorder arising out of the physical and sexual abuse he suffered as a child and adolescent both from his step-father and whilst in Turana. He has also reported symptoms suggestive of extremely severe depression, extremely severe anxiety and severe stress related both to his traumatic childhood experiences and to his criminal legal issues. He has been taking anti-depressants since 2007 and takes medication to control his back pain. He has received intermittent psychological assistance since at least 2007 to address his childhood trauma (though this was interrupted by COVID), suffers from tinnitus, and in recent times appears to have suffered from a rapid cognitive decline. A neuropsychologist, Mr Martin Jackson, opined that the applicant’s premorbid abilities were in the low to average range. His performance in the neuropsychological assessments varied between low average or better, borderline, and extremely low. His full scale IQ was in the extremely low range. Mr Jackson was of the opinion that the applicant did not have an intellectual disability but the results of the neuropsychological assessment clearly indicated that he suffered significant cognitive impairment and that impairment could not be explained by his mental health state alone.
In sentencing the applicant, the judge reviewed the circumstances of the offending, the applicant’s background including his childhood disadvantage, work history, relationship history, and reports from a 2007 treating psychologist and the earlier mentioned neuropsychologist. The judge noted that although the applicant had no prior convictions, he had subsequently offended against two of his granddaughters. He compelled his young victims to pull down their pants, pose on all fours and he then kissed their bare bottoms. The judge noted that this offending formed no part of her sentencing considerations, ‘save to show that, as recently as 2019, [he was] still a danger to children’.[18]
[18]DPP v Gibson (a pseudonym) [2022] VCC 2172, [67] (‘Reasons’).
The judge very comprehensively reviewed the psychological and neuropsychological evidence tendered on the plea. It is unnecessary to refer to it in detail. In substance, the evidence demonstrated:
•The applicant has experienced a recent quite rapid decline in cognitive function.
•The applicant’s processing speed had declined and now shows an extremely low processing speed score and a ‘severe deterioration’[19] in his ability to learn and remember information, among other areas of deterioration.
•It is possible that the applicant now suffers from dementia but the evidence was inconclusive. The custodial environment could be more burdensome as a consequence, although the applicant is currently settled and happy.
•He is currently housed at Hopkins Correctional Centre in a unit close to the Medical Centre. He is currently self-caring and uses a walking frame.
•Should the applicant deteriorate further, a number of services are available to him in the subacute unit at Hopkins Correctional Centre and a high care unit is currently under construction at Langi Kal Kal. The judge also noted evidence received to the effect that, while Victorian prisons do not provide specific dementia or aged care facilities, the system is based on the principle of community equivalents, so that prisoners are provided with healthcare of a quality and standard equivalent to that provided in the community through the public health system.
•As mentioned earlier, the applicant is currently happy with his current accommodation arrangements, which include access to a physiotherapist, audiologist, optometrist, doctors and nurses including mental health nurses, a walking track, a gymnasium and a swimming pool.
[19]Ibid [33].

The judge correctly determined that the principles set out in Bugmy v The Queen[20] were engaged.[21] Insofar as the principles expounded in R v Verdins[22] were concerned, the judge said:
[Defence counsel] who appeared for you on 25 July 2022 had urged that principles three and four of Verdins should apply to reduce the weight to be given to general and specific deterrence due to your current mental impairment, as well as principle five, the additional hardship of undergoing a sentence with such impairment (which I have already acknowledged). As far as principles three and four are concerned, I consider that the current state of your cognitive impairment is such as to warrant some amelioration of the emphasis to be placed upon general and specific deterrence, but there is still a need for considerable emphasis upon both of those factors given the gravity of your offending and the fact that it occurred over quite a period of time and involved multiple victims.[23]
[20](2013) 249 CLR 571; [2013] HCA 37.
[21]Reasons, [51].
[22](2007) 16 VR 269; [2007] VSCA 102.
[23]Reasons, [55]. Verdins principle one was not pressed on the applicant’s behalf.
On the first indictment, the judge considered, correctly in our view, that the applicant was entitled to a sentencing benefit for his late pleas of guilty to reflect the utilitarian value of those pleas, including some further utilitarian value in the context of the COVID pandemic.[24] The judge did not consider the applicant had exhibited remorse, either from those pleas or more generally.[25] The judge noted Mr Jackson’s opinion that the applicant’s cognitive deficits impaired his capacity for rehabilitation and increased his risk of reoffending ‘because of his inability to learn new information and a tendency to revert to past behaviour due to his incapacity to come out with well-thought-out and reasonable solutions to situations’.[26] After noting Mr Jackson’s opinion that the applicant would need a lot of support due to his cognitive problems and that there were no possible therapeutic or rehabilitative options, her Honour ultimately accepted Mr Jackson’s opinion that the risk of reoffending was ‘probably alleviated to some degree by [the applicant’s] deteriorating cognition, as well as [his] physical capabilities’, particularly given he was likely to be in prison for a considerable time.[27] The judge noted that the sentencing benefit to which the applicant was entitled from his lack of prior convictions was logically reduced given that he had offended over a number of years against three children.[28] The applicant’s age of 71 years was not of itself a mitigating factor, however, the judge did consider that a term of imprisonment would likely be more burdensome for the applicant than a younger prisoner.[29] Her Honour also took into account some restrictions relating to out-of-cell hours and reduced availability of programs and contact visits during pandemic restrictions as having made the applicant’s first experience of prison more onerous.[30]
[24]Ibid [56].
[25]Ibid [56], [58].
[26]Ibid [58].
[27]Ibid.
[28]Ibid [59].
[29]Ibid.
[30]Ibid.
The judge emphasised the following when considering the sentence to be imposed in respect of the offending on the two indictments:[31]
•The applicant had deliberately and manipulatively exploited the positions of trust and authority he held in respect of the complainants and, where relevant, their parents, to selfishly gratify his own sexual needs.
•The exploitative and depraved nature of the offending was exemplified by the applicant inducing the complainants to allow the offending to be done to them, away from the protection of parents and other adults.
•The applicant did not appear to understand the significant harm he visited on the complainants, who were children and at a particularly vulnerable stage of development when the offending occurred.
•The complainants’ victim impact statements, one of which the judge described as a ‘heartrending document’,[32] clearly recorded the long-term adverse consequences of the offending on the victims’ wellbeing, including difficulties with adult relationships and adverse life events, low self-worth, anxiety, depression and post-traumatic stress.
[31]Ibid [60]–[67].
[32]Ibid [66].
Her Honour concluded by acknowledging the adverse impact of the applicant’s disadvantaged and traumatic childhood, and the ‘tragic irony’ that ‘[he had] now transmitted trauma to multiple others’.[33] Her Honour stated:
The length of the offending, and the nature of the offending, particularly in relation to Brenda, makes it very grave. The law recognizes the appalling nature of incest, involving as it does such a fundamental breach of trust, an abdication of parental responsibility and cynical exploitation of the opportunity for sexual contact while in a position of trust. It is also a crime of violence. It strikes at the heart of the family relationship and involves abuse of parental responsibility to protect a child and, instead, does harm.[34]
We endorse these remarks.
[33]Ibid [67].
[34]Ibid [68].
In our view, her Honour was correct to give weight to denunciation, community protection (the applicant last offended in 2019), just punishment and general deterrence.[35] Whilst the judge considered the need for specific deterrence was a ‘less prominent consideration’ as a consequence of the applicant’s age and ‘likely physical and psychological decline’ and the fact he would not be in proximity to children whilst serving a lengthy term of imprisonment, her Honour nevertheless concluded that the applicant’s prospects for rehabilitation were poor.[36] These conclusions were all reflected in the total effective sentence now imposed.
[35]Ibid.
[36]Ibid.
There is no doubt that this is a stern sentence imposed on a man in decline, but this is, as the judge described it, ‘abhorrent’ and ‘depraved’ offending,[37] deserving of the community’s utmost condemnation. None of the individual sentences are the subject of this application and they are comfortably within range. We consider the orders for cumulation are within the range of sensible sentencing discretion. The orders for cumulation on the first indictment are relatively modest, totalling 8 months of a two year head sentence. In our view, they are unremarkable and reflect appropriately the separate criminality involved as between the five charges. The orders for cumulation are more substantial in the second indictment, however the offending conduct was considerably more criminally culpable; there were two complainants, and the offending extended over many years. None of the orders for cumulation in all the circumstances strike us as manifestly excessive, nor does the second sentence of 12 years’ imprisonment imposed on the second indictment — this was dreadful offending. Further and for the same reasons, we consider the global total effective sentence of 14 years’ imprisonment with a minimum non-parole period of 10 years to be within the range of sentences open to the judge.
[37]Ibid.
Sentence appeal proposed ground 1 must be rejected.

Conclusion

The application for leave to appeal against sentence is refused.
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[2024] VSCA 33

14 March 2024