Grey v The Queen
[2022] ACTCA 2
•20 May 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: Grey v The Queen Citation: [2022] ACTCA 2 Hearing Date: 20 May 2021 Decision Date: 7 February 2022 Before: Loukas-Karlsson J, Wigney J and McWilliam AJ Decision: [367] Catchwords:
APPEAL – appeal against conviction and sentence – application to adduce further evidence – where evidence is new but counsel’s conduct of trial is in issue on appeal – whether verdicts unsafe or unsatisfactory – whether sentence manifestly
excessive Legislation Cited: Court Procedure Rules 2006 (ACT) r 5412
Crimes Act 1900 (ACT) ss 54, 60, 67
Crimes Act 1914 (Cth) ss 16A, 19AB, 19AC
Crimes (Sentencing) Act 2005 (ACT) s 33
Criminal Code 2002 (ACT) s 44
Criminal Code Act 1995 (Cth) s 271.7
Supreme Court Act 1933 (ACT) ss 37O, 37J, 37NCases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
AH v The Queen [2019] NSWCCA 152
Ali v The Queen [2005] HCA 8; 79 ALJR 662
Alkhair v The Queen [2016] NSWCCA 4; 255 A Crim R 419
Azzopardi v The Queen [2011] VSCA 372
Barrett v The Queen [2016] ACTCA 38
Bartlett v The Queen [2017] ACTCA 60
Baghdadi v The Queen [2012] NSWCCA 212
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253
CLR 58
Betts v The Queen [2016] HCA 25; 258 CLR 420
BI v The Queen (No 2) [2018] ACTCA 11
Bright v The Queen [2018] ACTCA 39
Browne v The Queen [2006] ACTCA 15
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Cavanagh v The Queen [2009] NSWCCA 174
Cramp v The Queen [2016] NSWCCA 305
Dawson v The Queen [2019] ACTCA 9
Dinsdale v The Queen [2002] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v Thomas [2016] VSCA
237; 53 VR 546
DL v The Queen [2018] HCA 32; 265 CLR 215
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086ED v The Queen [2019] ACTCA 10 Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1
Featherstone v The Queen; Bloxsome v The Queen [2020]
ACTCA 33
Fleming v The Queen [1998] HCA 68; 197 CLR 250
Forster-Jones v The Queen [2020] ACTCA 31
Gore v R; Hunter v R [2010] NSWCCA 330
Grey v The Queen [2021] ACTCA 6
Hampton v The Queen [2010] NSWCCA 278; 208 A Crim R 478
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR
520
Hillier v R [2008] ACTCA 3
House v The King (1936) 55 CLR 499
Hoyle v The Queen [2018] ACTCA 42; 39 FLR 11
Inge v The Queen [1999] HCA 55; 199 CLR 295
Jakaj v Kinnane [2020] ACTCA 19
Jarvis v The Queen (1993) 20 WAR 201
Jurj v The Queen [2016] VSCA 57
Kamali v The Queen [2019] NSWCCA 186
KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503
Laipato v The Queen [2020] ACTCA 35
Lawless v The Queen (1979) 142 CLR 659
Le v The Queen [2020] NSWCCA 238
Leighton v The Queen [2017] ACTCA 55
Libke v The Queen [2007] HCA 30; 230 CLR 559
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
M v The Queen [1994] HCA 63; 181 CLR 487
Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MFA v The Queen [2002] HCA 53; 213 CLR 606
Michael v Western Australia [2008] WASCA 66; 183 A Crim R
348
Millard v The Queen [2020] ACTCA 20
NO v The Queen [2019] ACTCA 33
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Obeid v R [2017] NSWCCA 221; 96 NSWLR 155O’Brien v The Queen [2015] ACTCA 47 Onnis v The Queen [2013] VSCA 271
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
Pell v The Queen [2020] HCA 12; 268 CLR 123
Power v The Queen [1974] HCA 26; 131 CLR 623
R v AJP [2004] NSWCCA; 150 A Crim R 575
R v Barry [2011] QCA 119
R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385
R v Clinch (1994) 72 A Crim R 301
R v Goodwin (1990) 51 A Crim R 328
R v Grey [2019] ACTSC 104
R v Grey (No 2) [2019] ACTSC 315
R v Grey (No 3) [2020] ACTSC 43
R v Harrington [2016] ACTCA 10; 11 ACTLR 215R v Hoyle (No 2) [2017] ACTSC 175 R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315
R v Palmer [2017] ACTSC 357
R v Rossi (1988) 142 LSJS 451
R v TK [2009] NSWCCA 151; 74 NSWLR 299R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Ratten v The Queen (1974) 131 CLR 510
Samani v The Queen [2017] ACTCA 23
Sampson v The Queen [2018] ACTCA 67
SKA v The Queen [2011] HCA 13; 243 CLR 400
Stanton v R [2017] NSWCCA 250
Taylor v R [2014] ACTCA 9
The Queen v Miller [2019] ACTCA 25; 279 A Crim R 232
Thomas v R [2019] NSWCCA 265
TK v The Queen [2009] NSWCCA 151; 74 NSWLR 299
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tully v The Queen [2016] ACTCA 4
Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465
Walshe v The Queen [2020] ACTCA 5
Weininger v The Queen [2003] HCA 14; 212 CLR 629
White v R [2019] NSWCCA 168
Wyper v R,· R v Wyper [2017] ACTCA 59
Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1
ZA v R [2017] NSWCCA 132
Zdravkovic v The Queen [2016] ACTCA 53Parties: Bradley Lester Grey (Appellant)
The Queen (Respondent)Representation: Counsel Self-represented (Appellant)
D Barrow (Respondent)K McCann (Respondent) Solicitors Self-represented (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)
ACT Director of Public Prosecutions (Respondent)File Numbers:
ACTCA 52 of 2019 ACTCA 12 of 2020
Decision under appeal:
Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 4 November 2019 Case Title: R v Grey Court File Number: SCC 246 of 2018 Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 27 February 2020 Case Title: R v Grey (No 3) Citation: [2020] ACTSC 43 Court File Number: SCC 246 of 2018 SCC 335 of 2019
Loukas-Karlsson J
Introduction
1. This is an appeal against both conviction and sentence. For the reasons which follow, the appeal against conviction should be dismissed and the appeal against sentence should be upheld.
2. The appellant was convicted after trial of a large number of offences contrary to the Crimes Act 1900 (ACT) (the Crimes Act (ACT)). The ACT Director of Public Prosecutions conducted the prosecution.
3. Thereafter, he formally pleaded guilty to a single offence contrary to s 271.7 of the Criminal Code Act 1995 (Cth) (the Commonwealth Criminal Code). The Commonwealth Director of Public Prosecutions conducted that prosecution.
4. Both the ACT trial proceedings and the Commonwealth sentence proceedings were presided over by Murrell CJ (the primary judge). The sentence hearing on 6 February 2020 involved both the ACT and Commonwealth proceedings.
5. Specifically, the appellant was tried on indictment containing 27 counts before the primary judge and a jury of twelve between 14 October 2019 and 4 November 2019. The indictment charged the appellant with a number of sexual offences against nine complainants between the dates of 30 December 2015 and 26 December 2016. The offences occurred at Mitchell Mistresses, which was a brothel operated by the appellant in Fyshwick in ACT, and where the appellant had recruited each of the complainants who were new to the sex work industry.
6. On 4 November 2019, the jury returned their verdicts as follows:
Count Charge; Offence Section Complainant Verdict Count 1 Act of indecency without consent, Crimes Act KN Guilty (ACT), s 60(1)
Count 2 Sexual intercourse without consent, Crimes Not Guilty Act (ACT), s 54(1) Count 3 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1)
Count 4 Act of indecency without consent, Crimes Act UC Not Guilty (ACT), s 60(1) Count 5 Sexual intercourse without consent, Crimes BG Guilty Act (ACT), s 54(1) Count 6 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 7 Act of indecency without consent, Crimes Act Guilty (ACT), s 60(1) Count 8 Act of indecency without consent, Crimes Act BU Guilty (ACT), s 60(1) Count 9 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 10 Act of indecency without consent, Crimes Act Guilty (ACT), s 60(1) Count 11 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 12 Act of indecency without consent, Crimes Act Guilty (ACT), s 60(1) Count 13 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 14 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 15 Act of indecency without consent, Crimes Act DL Guilty (ACT), s 60(1) Count 16 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 17 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1)
Count 18 Sexual intercourse without consent, Crimes Not Guilty Act (ACT), s 54(1)
Count 19 Act of indecency without consent, Crimes Act SH Not Guilty (ACT), s 60(1) Count 20 Act of indecency without consent, Crimes Act Not Guilty (ACT), s 60(1)
Count 21 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1)
Count 22 Sexual intercourse without consent, Crimes BI Guilty Act (ACT), s 54(1) Count 23 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 24 Sexual intercourse without consent, Crimes NH Guilty Act (ACT), s 54(1) Count 25 Sexual intercourse without consent, Crimes Guilty Act (ACT), s 54(1) Count 26 Act of indecency without consent, Crimes Act FN Not Guilty (ACT), s 60(1)
Count 27 Attempted Sexual intercourse without Not Guilty consent, Crimes Act (ACT), s 54(1), per
Criminal Code 2002 (ACT), s 44
7. On 17 February 2020, the appellant was sentenced for the above ACT offences and the additional Commonwealth charge of domestic trafficking in children, contrary to s 271.7 of the Commonwealth Criminal Code (the Commonwealth offence), to which he had pleaded guilty. The appellant was sentenced to an aggregate sentence of 11 years and 5 months, with a non-parole period to commence on 13 July 2020 and to end on 12 May 2024, a period of 3 years and 10 months: R v Grey (No 3) [2020] ACTSC 43 (R v Grey (No 3)). Therefore, the appellant is able to apply for parole after a period of 6 years and 3 months, as the ACT sentences were partially concurrent on the Commonwealth sentence (see Annexure A).
8. In November 2019, the appellant filed a Notice of Appeal against the verdicts of guilty with respect to counts 6, 14, 16, 21, 23, 24 and 25 on the basis those verdicts were
“unsafe and unsatisfactory”. The task of this Court is to determine whether the
verdicts are “unreasonable, or cannot be supported, having regard to the evidence”: s
37O(2)(a)(i) of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), see also: Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 [31]-[40]; Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [12].
9. In March 2020, the appellant filed a further Notice of Appeal against the sentences imposed by the primary judge. The Notice of Appeal does not disclose any ground of appeal against sentence, however, in his written outline of submissions, the appellant has identified appealing against "the severity of the individual sentences and the totality" of the sentences.
10. In October 2020, the appellant filed an application in proceeding and affidavit. The application sought to appeal (out of time) his conviction in relation to the Commonwealth offence, as well as seek to adduce further evidence on his appeal.
11. In February 2021, the application was listed before Burns J sitting as a single judge of the ACT Court of Appeal. At that time, his Honour refused the appellant leave to appeal the conviction relating to the Commonwealth offence.
12. In relation to the application to adduce further evidence, his Honour noted there was question of whether the application fell within s 37J(l)(k) of the Supreme Court Act, namely "any other question of practice and procedure in the Court of Appeal" and, therefore, whether a single judge sitting as the Court of Appeal had jurisdiction to determine such an application: see Jakaj v Kinnane [2020] ACTCA 19 at [9]. Accordingly, his Honour referred the application concerning further evidence for consideration by the Full Court.
Case at Trial
13. During 2015 and 2017, the appellant ran two brothels in Canberra. During that period, he regularly sought to recruit young women, who were new to the escort industry to work in his brothels as sex workers. The prosecution case at trial was that the appellant sexually assaulted nine women who were seeking employment by instructing them to engage in sexual acts with, or upon him, for his own sexual gratification under the guise of "training''.
14. The prosecution case at trial was that the complainants did not consent to the acts subject of the counts, as there was no free and voluntary consent. The prosecution case was that the various complainants, in each of the circumstances, did not have the opportunity to freely and voluntarily consent because it happened close to instantaneously in each case. The prosecution also proceeded, in the alternative, on the basis that any apparent consent was negated by the appellant abusing his position of authority over the complainants and/or by making fraudulent misrepresentations.
15. Relevantly, s 67(1)(g) and s 67(1)(h) of the Crimes Act provide:
67 Consent
(1) For sections 54, 55(3)(b), 60 and 61(3)(b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of
indecency by or with another person, is negated if that consent is caused –
…
(g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or (h) by the abuse of the other person of his or her position of authority over, or professional or other trust in relation to, the other person…
16. The primary judge in R v Grey (No 2) [2019] ACTSC 315, dealt with this issue and
annexed a table to the decision outlining the prosecution’s submissions concerning
consent.
17. Additionally, the prosecution was also permitted to adduce tendency evidence: see R v Grey [2019] ACTSC 104. The prosecution led evidence (by way of cross- admissibility) that the appellant had a tendency to use the "training" as a means of obtaining sexual gratification from the new workers, as well as a tendency to make new workers believe they had to undergo the training and sexual activity to enable them to work at Mitchell Mistresses.
18. The defence case at trial was that the complainants were unreliable and that a number of the acts alleged did not occur. Further, it was contended that each of the complainants were willing, and consented to what occurred. It was also argued the appellant was not in a position of authority over the complainants.
19. The trial judge gave relevant directions. Her Honour's directions included standard directions regarding onus of proof, a Markuleski direction (R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82), and a Murray direction (R v Murray (1987) 11 NSWLR 12; A Crim R 315), with respect to each separate complainant, as well as a tendency direction (see Annexure B).
Grounds of Appeal and Representation
20. The grounds in relation to the appeal against conviction are as follows:
(a) The verdicts on counts 6, 14, 16, 21, 23, 24, and 25 are unsafe and unsatisfactory.
21. The grounds in relation to the appeal against sentence is as follows:
(b) The sentence is manifestly excessive in the circumstances.
22. The appellant was unrepresented and prepared his appeal in custody.
Approach to be Adopted
23. I will deal with the relevant matters on appeal in the following order:
• Further Evidence and Additional Ground of Appeal • Conviction Appeal (ACT)
• Sentence Appeal (ACT)
• Sentence Appeal (Commonwealth)
• Totality of ACT and Commonwealth Sentences
Further Evidence and Additional Ground of Appeal
24. The appellant stated that there were some key areas where “my defence failed in,
some areas that should have been focused upon, some brief notes regarding the complainants, the charges, the sentencing. I will also mention briefly the
commonwealth matter”. The appellant attached a statement and two affidavits.
25. The appellant has therefore applied to have fresh evidence adduced on appeal by way of application in proceeding. There is a great deal of overlap and repetition across the three documents.
26. In his written outline of submissions, the appellant has referred to two affidavits which have been filed which "consists of evidence that my defence failed to use". It is noted the appellant has only sought to appeal the reasonableness of the identified verdicts. It is not clear whether the appellant has intended to raise an additional appeal ground alleging a miscarriage of justice in relation to all verdicts, or just the identified verdicts, as a result of the conduct of his counsel.
27. To the extent the appellant is taken to have raised a new ground of appeal, he requires leave of the Court: see Court Procedure Rules 2006 (ACT), r 5412(2). While, the respondent did not oppose leave, it was submitted that any ground alleging a miscarriage of justice by reason of the conduct of his trial is without merit and therefore should be dismissed.
Affidavits and Complaint Concerning Counsel
28. The appellant filed an affidavit on 26 October 2020 and an affidavit on 8 February 2021. Although both affidavits are relied upon as "appeal fresh evidence", much of the content is not of this nature, but largely in the nature of commentary, or submissions on evidence called at the trial. Although not easy to discern from the material, there appear to be two broad assertions with respect to the appellant's trial counsel. First, that the appellant was not called to give evidence, and second that there was material which was either not used in the cross-examination of witnesses or not properly explored with witnesses.
Legal Principles
29. On appeal, a Court may receive further evidence pursuant to s 37N(3) of the Supreme Court Act. The relevant principles were summarised by this Court in Hoyle v The Queen [2018] ACTCA 42 (Hoyle) (Murrell CJ, Burns, and North JJ) at [27]-[31]:
Section 37N(3) of the SCA was discussed in Jovanovic v The Queen [2015] ACTCA 29
(Jovanovic) at [21], where the Court said:
There is no statutory restriction on the receipt of further evidence, but the nature of appeals to
the Court of Appeal provides some guidance as to the manner in which the Court’s discretion
should be exercised.
In relation to the use that may be made of further evidence called on appeal, there is a well-established distinction between new evidence and fresh evidence: Ratten v The Queen (1974) 131 CLR 511 (Ratten), Lawless v The Queen (1978) 142 CLR 659 (Lawless). Recently, both cases were discussed in R v Hodges [2018] QCA 92 and [2018] WASCA 14, judgment suppressed.
Fresh evidence is evidence of which an accused person was unaware at the time of trial and which could not have been discovered with reasonable diligence, i.e., evidence that was both actually and constructively unavailable to the accused. If, because of fresh
evidence, it is reasonably possible (or—perhaps—“significantly possible”: see [31] below)
that there would have been a verdict of not guilty, then the unavailability of the fresh evidence speaks of a miscarriage of justice in that the trial was not a fair trial. The remedy
is to order a new trial: Ratten at 516–519; Lawless at 674–675.
New evidence is evidence that was actually or constructively available to the
accused at the time of the trial. Unlike fresh evidence, if new evidence simply raises the
possibility (or “likelihood”) that a jury would have returned a verdict of not guilty, then the
conviction will not be set aside. New evidence cannot establish that the trial itself was unfair. It is only if the new evidence raises a reasonable doubt about the correctness of the conviction itself that a miscarriage of justice will be demonstrated. In that case, an acquittal
will be recorded. In Lawless, at 675–676, Mason J explained that two considerations
operate to bring about that result. First, in a criminal trial, the accused decides how to
run the case and what evidence will be called. If the accused deliberately chooses not to call material evidence that is actually available at the time of the trial or fails to exercise reasonable diligence to seek out material evidence, then the accused is bound by that decision. Second, there must be a powerful reason for disturbing a conviction obtained after a trial that has been regularly conducted.
In the case of fresh evidence, the appellate court must evaluate its credibility (whether a
reasonable jury could find it to be plausible—see [2018] WASCA 14, judgment suppressed,
at [240]) and probative value (cogency, capacity to influence the outcome by causing a reasonable doubt) for the purpose of determining whether, if the evidence had been
considered together with the other evidence at the trial, it is “likely” that the accused would
have been acquitted: Ratten at 519 (Barwick CJ). In Gallagher v The Queen (1986) 160 CLR 392 at [10], Dawson J expressed the test as whether a jury might reasonably have
acquitted, not whether the jury was “likely” to have done so. In [2018] WASCA 14
(judgment suppressed) at [240], the import of the test was expressed somewhat differently,
as whether there is a “significant possibility” that, on the basis of the fresh evidence and the
evidence given at trial, a reasonable jury would have acquitted the appellant.
(emphasis added)
30. As detailed above, although s 37N(3) refers to "further evidence", the distinction between "new" and "fresh" evidence remains relevant in this context. In this case, to
the extent the affidavits contain “evidence”, the evidence would be considered "new"
evidence as described in Hoyle at [30]. Nevertheless, the admission of the evidence is necessary to consider the ground of incompetence of counsel. Therefore, leave is granted.
31. Generally speaking, an appellant is bound by the conduct of their trial at first instance: see R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385; TKWJ v The Queen [2002] HCA 46; 212 CLR 124 (TKWJ v The Queen). It is accepted that the conduct of trial counsel can, in certain circumstances, give rise to a miscarriage of justice within the meaning of s 37O(2)(a)(iii). However, as noted by Simpson AJA in Kamali v The Queen [2019] NSWCCA 186 (Kamali) at [31] the available ground of appeal is not that counsel was incompetent, but that a miscarriage of justice occurred:
The circumstances in which that principle has been invoked are many and various. But the cases in which it has been successfully invoked are few in number. That is because, as the following review will demonstrate, the proper subject for examination is not the conduct of counsel, but its consequence. The available ground of appeal is not that counsel was incompetent, but that a miscarriage of justice occurred.
32. In Tully v The Queen [2016] ACTCA 4, this Court summarised the principles concerning incompetence of counsel and miscarriage of justice. In particular, noting that alleging incompetence of trial counsel does not reveal what is said to be the miscarriage of justice. Murrell CJ and North J observed at [112]-[113]:
In Nudd v The Queen (2006) 162 A Crim R 301 (Nudd), the High Court was concerned with a contention that incompetency of trial counsel had caused a miscarriage of justice. The Court dismissed the appeal. At [24] Gummow and Hayne JJ said:
Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial. (citations omitted)
Recently, Nudd was applied in Ahmu v The Queen [2014] NSWCCA 312 at [31] per Basten
JA, Adams J, Fullerton J agreeing. At [30]–[31] Basten JA observed:
... Because, as a matter of basic principle, an accused is bound by the course taken by counsel in conducting a trial, cases in which a conviction will be set aside on the basis of apparent incompetence of counsel will be few and far between.
As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at
[10], “[t]o the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process.” That is to say, whether counsel has acted
according to or in contravention of the advocates' ethical rules, and why, is not in issue, unless it explains some objective feature in a way which establishes or discounts a miscarriage...
33. Proper appellate restraint must be applied when considering complaints of this nature, bearing in mind the system of adversarial justice under which courts operate. Counsel, has a wide discretion, as to how the matter is conducted including witnesses to be called, questions to be asked of witnesses, evidence adduced, and the lines of argument to be pursued or abandoned: see TKWJ v The Queen at [74]; Kamali at [32]-[35]; KLM v Western Australia [2009] WASCA 73 at [51] (KLM).
34. The appellant is bound by the decision made in the exercise of this discretion. As Hayne J noted in Ali v The Queen [2005] HCA 8; 79 ALJR 662 at [24] (Ali v The Queen), "hindsight must be put aside". The mere fact that an appellant now asserts that he or she would have made a different decision is no reason not to hold them to the forensic decisions properly made at trial on their behalf.
35. The inquiry is necessarily objective: see Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 (Nudd) at [10]. The appellant seeking to establish a miscarriage of justice carries a "heavy burden" and, if there could be a reasonable explanation justifying the conduct of counsel, it is unlikely that a miscarriage of justice has occurred: TKWJ v The Queen at [26], [74]; Ali v The Queen at [25] (Hayne J, McHugh J agreeing).
36. In relation to a claim concerning advice given as to whether an accused should give evidence, it has been said that it is "extremely difficult" to propound a case for a miscarriage of justice in such circumstances. Relevantly, in KLM, the Court stated that this is because there will always be an obvious forensic advantage to be gained from failing to give evidence, in the lack of exposure to cross-examination. At [59] the Court stated:
Ordinarily, by reason of the general principles to which I have referred, it will be extremely difficult to make out a case of miscarriage of justice based upon advice given to an accused person relating to the giving of evidence which leaves the decision on that subject to the accused (as it must be). That is because there will always be an obvious forensic advantage to be gained from failing to give evidence, in the lack of exposure to cross-examination. That forensic advantage was no less in this case than in any other. Accordingly, unless there was more to it, it would be extremely difficult to see how the appellant could establish that there was a miscarriage of justice merely because he acted upon advice to the effect that, while he could give evidence if he wanted to, it would be desirable if he did not.
37. In a similar vein, in Nudd, Gummow and Hayne JJ stated at [31]:
It would have been well open to competent counsel to conclude that the very slight gains that might be obtained by putting forward a positive defence, of the kind that the appellant said he had, were well and truly outweighed by the disadvantages that would likely be suffered were the appellant to give evidence. It would, then, have been well open to
competent counsel to conclude that the appellant should be advised against giving evidence in his defence. That being so, the fact that the appellant did not give evidence at his trial has brought about no miscarriage.
(emphasis added)
Consideration: Conclusion
38. It may be assumed that decisions of counsel are the product of an informed and deliberate decision unless it is established otherwise: see KLM at [53]. In this case, the decision not to call the appellant to give evidence was not obviously irrational. It was not a decision that defied explanation. There was the "obvious forensic advantage to be gained from failing to give evidence, in the lack of exposure to cross- examination", as referred to in KLM.
39. Additionally, the risk the appellant would have poor or limited recollection as to the circumstances involving each specific complainant was clear. Significant portions of the cross-examination of each complainant covered the same material and was not specific to any complainant. It was clear that the cross-examination of each complainant demonstrated that counsel had material to attempt to challenge the reliability and veracity of each account without exposing the appellant to the risk of cross-examination.
40. In his affidavit, the appellant states "in hindsight I would have changed aspects of the trial" and that "I regret not testifying".[1] As noted in Ali v The Queen, hindsight must be put aside.
[1] Affidavit 2, page 4.
41. Generally, the numerous matters raised by the appellant were either cross-examined upon, irrelevant, or not helpful to the appellant's case. The following are some examples:
The appellant states that although "he no longer agree[s] with the training he conducted”,[2]
[2] Affidavit 2, page 4, point [10].
and is now "aware of the error of his ways",[3] he "could have shed a degree of light upon ... the process in the industry",[4] or the "basic logic around [his] decisions".[5] What that is, is not identified.
[3] Affidavit 1, page 18.
[4] Affidavit 2, page 4, point [21].
[5] Affidavit 1, page 18.
The appellant states that “the process of training was for arousal methods that were not
commonly known to most workers, to minimise shock factors, [and] to witness orgasm in a service".[6] He indicates there was no need to instruct workers on how to perform oral sex on a male or sexual intercourse "as the majority of workers would have had" personal
[6] Affidavit 2, page 7; 8; 9; 10; 11; 12.
experience of these matters.[7] The appellant’s explanation appears inconsistent and lacks
[7] Ibid.
forensic credibility.
In relation to BU, the appellant says that BU "objected" to the photoshoot, following which "we had a slightly heated discussion regarding the photoshoot".[8] The appellant provides no particulars of this "heated discussion". The jury may well have considered this corroborated BU's account of telling the appellant she was uncomfortable with proceeding.
[8] Affidavit 2, page 8-9.The appellant asserts various matters such as "my car was not shitty", "I do not appear my age" and "I was courteous" during phone or text message exchanges amongst other matters. These matters, it must be said, generally were either not in dispute or had no relevance in relation to the issues at trial.
The appellant also makes reference to material which was not obtained such as supplier records for female condoms and brothel pay sheets which would have assisted. It is difficult to ascertain in which way such documents could have assisted in circumstances where each of the offences occurred on the first occasion when each complainant came to Mitchell Mistresses. Further, the evidence demonstrated consistently that each complainant would earn a 40 per cent share from each client. Finally, whether or not there was evidence showing supply of female condoms does not have any relevance to the facts at issue at trial.
The appellant otherwise raises various points regarding drug use of the complainants or within the brothels generally, SH's tongue modification, the complainants continuing to work at Mitchell Mistresses following the assaults, the financial circumstances of the complainants, and a range of other matters. These matters were in the evidence at trial and explored by counsel in cross-examination.
42. From the foregoing, it is tolerably clear that the failure to call the appellant to give evidence was the product of a rational decision and did not result in the appellant losing a chance of acquittal which was fairly open to him. Further matters raised were explored in evidence by the appellant's counsel. It cannot be said the material disclosed in the affidavits "either shows the appellant to be innocent, or raises such a doubt about his or her guilt in the mind of the court that the verdict should not be allowed to stand": Hillier v R [2008] ACTCA 3 at [157].
43. The ground of appeal alleging a miscarriage of justice by reason of counsel’s conduct of the appellant’s trial lacks foundation and should be dismissed.
Conviction Appeal (ACT)
Appellant’s submissions – unreasonable verdict and further submissions
44. The appellant submitted:
I have appealed against 7 convictions. My reason for appealing is that:
i) I disagree that these events took place; or
ii) That I did not instigate these actions
I have asked to appeal both convictions relating to [NH], and all convictions relating to oral sex being performed upon me. I do not deny that I was involved in some of the charges, however I do deny that I was involved in these 7 charges, which I will mention later in this statement.
(a) Count 6 - [BG] - sexual intercourse without consent, being reckless as to consent
(b) Count 14 - [BU] - sexual intercourse without consent, being reckless as to consent
(c) Count 16 - [DL] - sexual intercourse without consent, being reckless as to consent (d) Count 21 - [SH] - sexual intercourse without consent, being reckless as to consent
(e) Count 23 - [BI] - sexual intercourse without consent, being reckless as to consent
(f) Count 24 - [NH] - sexual intercourse without consent, being reckless as to consent (g) Count 25 - [NH] sexual intercourse without consent, being reckless as to consent
There are some important considerations that I wish to highlight briefly:
In my brothels, Mitchell Mistresses and Diamond Companions, I had higher than standard business practises. It can be noted that up until the nightly light rail roadworks crippled the income in Mitchell Mistress, the income levels in that brothel were the highest for any brothel workers in the ACT region. Pay sheets will confirm this. Many of my business practises were not standard practise in brothels in the ACT nor standard in brothels nationally. In the documents provided I have noted 32 points in relation to my business practises.
The prosecution said that I preyed upon the workers financial situations, but this is not true. I assisted them enormously with free accommodation, which is not standard practise anywhere in the industry, free transport, financial assistance for transport, plus there are number of other benefits that are noted in the documents that I have provided to the court.
I ask the Court to consider that in the majority of ways, I was professional, considerate, and focused on caring for the business, and the workers.
I have also made note of a number of disagreements that can occur in brothels, in some instances leading to spite from certain workers. I have noted 10 forms of disagreement in particular. I have also made note of the situations were long-term workers were very satisfied with the workplace, and had worked with me for a number of years.
Added to my business practises, were my reasons for training, which were only marginally presented during my trial, and full disclosure would have shed a different light upon my practises. Prior to me becoming aware of the errors of my ways, I had formed an opinion as to why I would conduct training. Whilst my views have changed, I still wish to inform the Court that there was logic around my decisions. In the documents provided I have noted 21 reasons that I had previously conducted training.
During the training there was no suggestion of the worker performing oral sex on me, as the concept of training was designed to teach them things other than intercourse and oral on a male, and also to benefit them with having far less stress on their jaws, and genitals, through intercourse or oral. Workers are known to suffer physically from both genital soreness and soreness in their jaws. There are other ways to achieve the results needed for a client. This also allowed many workers to be less physically stressed and be able to take on more bookings, thus earn more income. The concept is to give the client the maximum feeling without excess wear and tear on the workers body.
There was no sexual interaction between myself and the workers outside of training, which clearly shows the intention behind the training was for that sole purpose.
My reputation for operating clean, safe, and respectful premises, is something that I am proud of. I certainly gave my best effort and I set a high standard. However I genuinely regret my mistakes made over that period.
I also wish to notify the court that I was a member of The Australian Sex Party, and The Eros Association, for many years, and in hindsight I should have sought assistance from them to formulate a safe training method.
In the documents provided to the court I state that there was an active social media group which was used by some of the workers to undermine myself and the businesses. I believe that the witnesses collaborated and modified their evidence in accordance to their group objective.
In 2015, I read the ACT Brothel Licensing Legislation and there is no mention of Position of Authority stated in that. I have been told that ignorance plays no part in innocence, however a clearly defined section in the Legislation regarding Position of Authority would have altered my actions completely. If a person reads a sign then they can make the conscious choice to regard it or disregard it. Surely the ACT Brothel Licensing Legislation is responsible for clearly defining the Position of Authority.
I note that if I had known that training was not permitted within the adult industry, other than by the Sex Workers Outreach Project (SWOP), then I would not have engaged in training. At no point did any person from SWOP speak to me in regards to me training with some of the workers. I do believe that training, of some form, in the industry, is essential. Note that SWOP only attends brothels every 60 days, and asking workers to wait up to 59 days for essential training is unwise and unsafe for the worker and the business. At no stage did I ever resist SWOP entering either premises, and I welcomed their interactions with the workers.
A SWOP worker, named [WE], who in May-July 2017 managed Diamond Companions for me, asked me on a number of occasions if she could train the girls. I declined her offer to train as these workers were all experienced and did not require further training. Therefore it was not clear to some SWOP workers either about training.
The matter for [UC] shows that workers were able to commence work without training. There were several other workers commence work without training also. Training was always optional.
There were testimonies that stated workers performed oral sex on me with a condom, and also without a condom. This has no consistency. And yet some of the workers said that they were not shown where the condoms were kept, which were in the drawer next to the bed, yet they used a condom on me.
The [prosecution] said that there was no need for me to show the workers how to perform a health check on me, yet argued that I failed to show them how to perform a health check. This is ambiguous and incorrect as I did show workers how to perform health check.
The [prosecution] said that I failed to supply female condoms, however if historic records were subpoenaed for my trial from my products supplier for the brothels, Calvista Australia, then they would clearly show that female condoms were ordered for the brothels. As I ordered them I also supplied them upon request and stock levels were kept in the working rooms. Not producing these records was to my disadvantage.
The right of refusal for a client was common in both premises and the workers used this.
This also applied to them training with me.Erotic massage was a clearly defined service within both brothels. As per massage parlours, there was a requirement for workers to learn erotic massage.
If there was an objection to participating in training or working at either premises, then each one of the workers making allegations could have walked a distance of 20 metres to commence work in the brothel next door to Mitchell Mistresses, or several others next to Diamond Companions.
Most workers wanted to know everything prior to coming in. Questions would be asked as to rates of pay, types of payment, services, attire, security, transport, parking, rosters, accommodation for some, the right of refusal, drugs and alcohol. Upon arrival we would discuss everything again, take a tour of the premises, where they would meet other workers, set up a profile on the computer for the website, conduct a photoshoot, and if they were new workers they could go through a training session if they asked to do so, or if they consented to do so. Many workers elected not to have a training session, particularly if they were experienced or if they felt that they could handle the shock of their first experience. This was their decision. Some workers however requested a training session as they wanted to know what to do in a booking. This again was their decision.
The [prosecution] made an effort to present me poorly during the trial by stating that I had sex workers reside at my home in Sydney, that my car was shitty, that I had grey hair, and dressed poorly.
The [prosecution] also stated that I kept images of workers to blackmail them, which is completely without fact. It was stated that I kept workers locked in the premises, and would not let them out, but that was proven to be untrue. Some workers had keys to the premises also, such as [NH], and [DL].
They also stated that I locked workers into contracts, but that was untrue, as there were 2 types of agreements produced to give workers information relating to standards to maintain within the workplace. They were not legally binding, nor did they lock them into anything.
They also stated that I was abusive in the trial. However evidence that in my text messaging to the workers, I was courteous, cohesive, and focused on the wellbeing of the business and their mutual incomes. The Judge also noted that I did not use force or harassment to coerce the workers.
It must also be noted that the majority of the workers making the allegations, all engaged in a [second] photoshoot with me at the brothel, as they updated their profiles in order to attract more clientele. This was usually generated by their own initiatives to update their profile, which again seems unusual if they had been mistreated. [BG], [DL], [BU], [SH], [BI], and [NH], all engaged in additional photoshoots. I have included details on the documents provided to the court.
Several times the witnesses were shown to have been less than honest when testifying under oath. I have included details on the documents provided to the court. [BI] admitted to Centrelink fraud. [DL], [BG], [NH], [SH], [UC], and [FN], had indicated to other workers that they were doing the same thing. If my defence team had checked this, it would have again shown a degree of dishonesty.
[NH] admitted to drug use at work, without being allowed to. Others denied using drugs, but in fact I let one worker go as a result of using, and I had discussions with 2 others who denied using drugs, but at the time they had admitted that they used them.
If the brothel Pay Sheets had been subpoenaed for my trial, then they would show that every witness was not being honest about their incomes. The Pay Sheets clearly show the volume of income received by each witness. The income levels were falsely represented in the trial. The workers on average earned between 2-7 times the income levels of the average Australian. The fact is that it is standard across the industry, that workers earn more than the average Australian wage earner, and in my Mitchell brothel it was considerably higher. Workers such as [C], [T], [Z], [P], and several others would constantly earn $900+ per shift, and the pay sheets will verify this.
A worker, named [Z], told me that [NH], [UC], [DL] and others were running a scare campaign in both brothels. This campaign consisted of scaring any new workers into believing that certain clients were diseased, or aggressive, so that they would not see a particular client, rather leaving that client for the older workers to obtain the bookings. This way the older workers secured more income as they reduced the competition with new girls. This also damaged the business in significant ways. My defence did not use this in the trial.
None of the complainants were homeless and were not destitute, with only one complainant being in a degree of difficulty, which was [NH]. [BG], [DL], [BU], [SH], [BI] all had residences and other income. I have provided this information in the documents.
It is noted that on Count 2, which was of me performing oral sex on her, was dropped, as there was no evidence. I also reject that I was involved in the activity in Count 6. [BG] said during the trial that she did not know how she ended up in the 69 position giving me oral. Yet she was very clear about everything else. I informed my defence that this act did not occur. If [BG] was involved in any oral sex act on me, then [BG] must have instigated the oral sex in her own mind. I did not instruct her to do so. Therefore I am innocent of this charge.
I reject that I was involved with Count 14 being [BU] and the charge of sexual intercourse without consent, being reckless as to consent. [BU] was not honest about several matters, and there was no need for her to have performed oral sex on me. [BU] was argumentative, non-compliant with policies, and was responsible for talking negatively about the business. I had been chatting with BU for 6 months, and on several occasions, before she even arrived in Canberra. Much of her evidence differs from the actual events.
I reject that I was involved with Count 16 being [DL] and the charge of sexual intercourse without consent, being reckless as to consent. I was found Not Guilty of Count 18, that being of penile-vaginal intercourse. [DL] fabricated this accusation in Count 18 and also in Count 16.
I was found Not Guilty on counts 19 and 20 relating to [SH]. I reject that I was involved with Count 21 being [SH] and the charge of sexual intercourse without consent, being reckless as to consent. At no point did [SH] perform oral sex on me. [SH] has a shocking tongue modification, that she admitted to in the trial, but it was not expanded upon. The modification to her tongue is that it is split in 2, forked like a snake. The appearance is not pleasing. I advised her not to make this known to clients as it could be off-putting. I provided this information to my legal team but it was not expanded upon at trial, in that the type of tongue modification was not explained, as this would have also generated a large degree of disbelief that she had performed oral sex upon me. This act did not occur and I am innocent of this charge.
I reject that I was involved with Count 23 being [BI] and the charge of sexual intercourse without consent, being reckless as to consent. [BI] said that I used a condom and threw it in the bin afterwards. She also said that I didn't show her where the condoms were located, but that she used one anyway. My defence did not expand upon the irregularities here.
I reject that I was involved with any activity in Count 24, being [NH] and the charge of sexual intercourse without consent, being reckless as to consent. [NH] made a request for me to have penile-vaginal intercourse with her. I explained to [NH] that this was not part of training, and that I was also in a relationship. She was adamant that I engage in more full sexual activity with her, and was keen to be more involved than a normal worker. [NH] denied this in the trial. I remember it clearly.
[NH] could not recall much at the trial, and the Counts of 24 and 25 were clearly something without consent, being reckless as to consent. Oral sex on me was not part of the training process.
else that she could not recall.
I reject that I was solely responsible for all of the trauma that the complainants were suffering from or are currently suffering from. I have provided reasons for this in the documents given to the court.
Conviction Appeal – Unreasonable Verdict
Legal Principles
45. Pursuant to s 37O(2)(a) of the Supreme Court Act, the Court of Appeal must allow an appeal if the Court considers that the verdict is unreasonable or cannot be supported, having regard to the evidence.
46. The relevant test was authoritatively stated in M v The Queen [1994] HCA 63; 181 CLR 487 (M v The Queen) and restated by the High Court in Pell v The Queen [2020] HCA 12; 268 CLR 123 (Pell); that is, the Court must ask itself "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty": Pell at [43]. That is to ask whether "the jury must as distinct to might, have entertained a doubt about the appellant's
guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], this analysis was
adopted by the Court in Pell at [44].
47. The task is to review the whole of the record of the trial and to make an independent assessment of the evidence, both as to its sufficiency, and its quality. If, after giving full weight to the primacy of the tribunal of fact, the appellate court is left in reasonable doubt as to the verdict, it is only where the advantage of the tribunal of fact in seeing and hearing the evidence is capable of resolving that doubt, that the appeal may be dismissed: see M v The Queen; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [13].
48. The appellant appeals the convictions with respect to counts 6, 14, 16, 21, 23, 24 and
25. The following table sets out the counts, the particulars, and the accused’s
contentions with respect to each impugned count.
Count/Complainant Particulars Accused contention
Count 6 – BG The appellant directed BG to perform oral sex Sexual intercourse
on him and the appellant simultaneously Act was consensual without consent performed oral sex on BG whilst on the bed. Count 14 – BU The appellant directed BU to perform oral sex
Act did not happen
Sexual intercourse on his penis until he ejaculated. without consent Count 16 – DL DL performed oral sex on the appellant whilst
Act did not happen
Sexual intercourse he lay on his back. without consent Count 21 – SH
The appellant retrieved a condom, placed it on his erect penis and had SH perform oral sex on
Act did not happen
Sexual intercourse him for about 10 minutes until the appellant without consent ejaculated. The appellant asked BI to perform oral sex on Count 23 – BI him. BI complied and retrieved a condom Sexual intercourse
which she placed on the appellant’s penis and Act was consensual without consent began to perform oral sex. This continued until
the appellant ejaculated.Count 24 – NH The appellant began performing oral sex and Sexual intercourse
digitally penetrating NH’s vagina causing her Act did not happen without consent discomfort. Count 25 – NH The appellant directed NH to perform oral sex
Act did not happen
Sexual intercourse on his penis as a part of mutual oral sex. without consent 49. Given the nature of the prosecution case, the credibility of the complainants was a key issue at trial. Counsel for the appellant raised numerous issues as to why the jury would not accept the complainants as reliable witnesses. Issues were raised as to consent. These issues included:
• That the appellant was not the employer of the complainants and therefore was in no position of authority with respect to them; • The complainants had exaggerated their respective financial and other vulnerabilities; • Each of the complainants commenced working at Mitchell Mistresses after the sexual assaults; • None of the complainants said no, resisted, or walked away; • There was delay in making complaints to police; and • Each complainant made a choice to engage in the training and willingly consented to the activity.
50. It is relevant, therefore, to set out the primary judge’s direction on consent and the
abuse of position of authority in full (T552-555):
So in this case, for those charges where the prosecution relies upon abuse of position of authority over the complainant as causing any consent that was given, the prosecution says that the accused had a position of authority over the complainant because he was a brothel owner/manager/recruiter who was looking to engage the complainant as a sex worker, and that is the relationship that the prosecutor argues you would characterise as a position of authority over the relevant complainant. The prosecutor says that the accused abused that position of authority in that he deliberately misused the position to make the complainant participate in sexual activities with him as part of so-called training for sex work. It was a misuse because, to his knowledge, such training was totally unnecessary and unwarranted.
The prosecutor says that the abuse of position caused the complainant – each complainant – to consent, or to give apparent consent, in the sense that there was a close and
important connection between the accused’s abuse/misuse of his position of authority and
the complainant giving consent or apparent consent sufficiently substantial to warrant the attribution of criminal responsibility. The prosecutor, I believe, argued that the main reason
the complainant’s agreed or acquiesced to the conduct was because the accused was in a
position to hire or fire, and they desperately wanted the job.
The accused argues that the circumstances do not justify a conclusion beyond reasonable doubt that he was in a position of authority over any complainant. There was no clear employment relationship, no relationship involving the payment of salary or any of the normal attributes of an employment relationship: leave, the provision of superannuation, and so on. At most, the women were going to work at the brothel, if they were employed, as independent contractors.
But in fact at the point – so the accused argues, I think, at the point of the interviewing
process, or training process, there was no clear relationship between the accused and the women such as you would find there was a position of authority. At the very most, it was a position of influence in relation to someone who was an adult and could make a choice. So that is the first way in which the prosecutor says that any consent which may have been given was negated at law, and that is because it involved the accused abusing a position of authority over the complainant, and that abuse causing the complainant to give any consent that she did give.
The second way in which the prosecutor says that – in relation to not necessarily all of the
charges, but a good many of them. The second way in which the prosecutor says that any consent that was given was, at law, negated, is that the prosecutor argues that the consent of the complainant to the particular act of sexual intercourse was caused by a fraudulent misrepresentation of fact made by the accused to the complainant. IN order to establish negated consent in this way, the prosecution must prove beyond reasonable doubt first that the accused made a fraudulent misrepresentation of fact to the particular complainant; and, second, that the fraudulent misrepresentation of fact cause the complainant to consent.
So, what is a fraudulent misrepresentation of fact? A misrepresentation does not have to
be an express statement, so it foes not have to be verbalised – or at least, it does not have
to be fully verbalised, either. It does not have to be verbalised at all, it can be implied from
circumstances. So a misrepresentation is a representation, it’s not necessarily a verbal statement. A misrepresentation is fraudulent if it’s made dishonestly. So, when in this context, we speak of a fraudulent misrepresentation, we’re really speaking of a dishonest
representation, or a dishonest misrepresentation. That is, a representation made by the
accused when he knows that the representation is untrue.Now, it’s to be a fraudulent misrepresentation of a fact that is made. At law, a fact includes a representation about the maker’s present intention. So it is fraudulent to dishonestly state
that you intend such and such when you know you do not intend such and such. So it is a
fraudulent misrepresentation of fact to say “If you do X then I’ll do Y” when at that point you
have got no intention whatsoever of doing Y, that is a fraudulent misrepresentation of fact
because it is a dishonest statement about your current intention.
In this case the prosecutor argues that the accused made a representation to complainants
that he would not engage – or would not continue to engage them as sex workers – or would not continue to – I’ll start again. The prosecution argued that the accused made a
representation to a complainant that he would not engage, or not continue to engage, depending on the complainant, her as a sex worker unless she consented to the sexual acts involved in the training.
The prosecutor says that for most of the complainants the representation was implied. It was not a verbal statement as such, it was implied. It might have been partly verbal. The prosecutor says that the representation was a fraudulent misrepresentation because, in fact, being engaged as a sex worker did not depend upon participation in the sexual acts involved in the training. The accused intended, at that point, to engage each complainant
regardless of whether she participated in the training. However, he dishonestly asserted – in effect he lied – when he implied that the sexual acts were a requirement if they wanted
to work at Mitchell Mistresses.
In this regard, you will recall that the prosecutor relied, fairly heavily, on the evidence of
[UC] that, after he tried to get her to masturbate him and she refused, he said, “don’t worry, dear” and he put her straight on the job. The prosecutor says that that shows that he – that
any engagement was, in fact, not at all dependent upon them undergoing the training.
That occurred on, I think, 30 March 2016 according to [UC]’s evidence. There was some other evidence on this matter, including, I think it was [DL], who said that “it wasn’t easy to get sex workers” and of course, there is the evidence that the accused, in effect, imported
one from overseas and one or more from interstate or regional centres to Canberra.
Now, in order to show negated consent by fraudulent misrepresentation of fact, the prosecutor must also show, beyond reasonable doubt, or prove beyond reasonable doubt, that the fraudulent misrepresentation of fact caused the complainant in question to consent or to give apparent consent. Again, we are talking about causation in the context of a serious criminal charge, consequently, to prove causation, the prosecution must prove beyond reasonable doubt that the causal connection between the misrepresentation and
the complainant’s consent was sufficiently substantial to warrant the attribution of criminal
responsibility.
And again, in support of this argument, the prosecution argued that the main reason that the complainants agreed to the conduct or acquiesced in the conduct was because they desperately needed the work and they understood that if they did not participate then they would not get the work, and so the misrepresentation was the substantial cause of any consent.
The accused submitted that the prosecution has not proved, beyond reasonable doubt, that any representation was fraudulent and I think raises the real possibility in argument, as unsavoury as this might be, that the accused considered that sort of training to be a work requirement. So, if he, in his mind, actually did think that way, as I say, unsavoury as it might be, then the accused submits that it was not a dishonest representation.
The accused also argued that the evidence of a number of complainants was unreliable. It was not such that you would be satisfied beyond reasonable doubt that the accused actually made such a representation either expressly, that is, by words or by conduct that implied that that was his position. Perhaps they just imagined it, or with the benefit of hindsight thought that that was what was going on.
Count 6; 14; 16; 24; and 25
51. Having regard to the whole of the evidence, there is nothing which rendered the individual complainant's evidence, which respect to each count, improbable or lacking in credibility. It was open to the jury to be satisfied that the prosecution had met the
criminal burden of proof: “he criminal standard of proof is a “designedly exacting standard”, see Le v The Queen [2020] NSWCCA 238 at [25] citing Douglass v The
Queen [2012] HCA 34; 86 ALJR 1086.
52. Each complainant gave clear and plausible evidence as to the events and the evidence was largely undiminished in cross-examination. The evidence against the
appellant was compelling. In each case, under the auspices of “training”, there was a
consistency of behaviour in relation to each of the complainants. All were in desperate need of employment. The appellant required each to undergo "training" which followed a relatively consistent pattern of behaviour which eventually led to sexual intercourse. Having regard to the evidence of each complainant, the jury was entitled to reject the appellant's assertion that oral sex was not performed on him (counts 14, 16, 21 and 25).
53. Nothing raised by the appellant individually or collectively is such as to call into question the integrity of the verdicts. On my independent assessment of the sufficiency and quality of the evidence, I am not left with a doubt as to the appellant's guilt with respect to each offence.
Count 23
54. The appellant submits there was inconsistency with respect to the evidence regarding the condom, such that the verdict on count 23 is unreasonable. During cross- examination, BI was asked whether there was a conversation about the condoms being in the bedside drawer. She agreed that she "knew about the condoms at that stage because I used one on him ... ".9 BI did not give evidence that she did not know where the condoms were. It appears from her evidence that she was told by the appellant where they were in the context of his direction that she perform oral sex.
The appellant’s contention is therefore baseless.
Count 21
55. In relation to count 21, the appellant underlined that he was found not guilty of the remaining counts with respect to SH namely, counts 19 and 20. The respondent submitted this may be a contention that the verdict, with respect to count 21, is unreasonable by reason of inconsistency. I will therefore deal with this matter on that basis.
Conviction Appeal - Inconsistent Verdicts
56. The principles relating to inconsistency of verdicts are well known and settled. The principles have been recently set out in Laipato v The Queen [2020] ACTCA 35 at [70]-[95] (Murrell CJ, Robinson and Berman AJJ): see also BI v The Queen (No 2) [2018] ACTCA 11; ED v The Queen [2019] ACTCA 10 (ED v The Queen); NO v The Queen [2019] ACTCA 33. The focus is the explanation for the acquittals, the focus is not the explanation for the convictions. An appellate court accords due regard to the jury's traditional function as judge of the facts. In accordance with principle, I am hesitant to reach a conclusion of inconsistent verdicts unless the difference in verdicts is an "affront to common sense and logic": Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 at [368], see also White v The Queen [2019] NSWCCA 168 (White) at [102].
57. As noted by Simpson AJA in AH v The Queen [2019] NSWCCA 152 (AH v The Queen) at [62]:
... differential verdicts, far from providing an indication that a jury has fallen down on its task, may very often provide the basis for confidence that the jury has done precisely
what it has been instructed to do: consider each count separately and reach a
verdict on that count, on the evidence relevant to that count.
(emphasis added)
58. A verdict of not guilty does not necessarily imply a "want of confidence" in the complainant but "may simply reflect a cautious approach to the discharge of a heavy responsibility" on behalf of the jury: see AH v The Queen at [61] citing MFA v The Queen [2002] HCA 53; 213 CLR 606 (MFA v The Queen) at [34].
59. It is a major step to find unreasonableness on the basis of inconsistency, see TK v The Queen [2009] NSWCCA 151; 74 NSWLR 299 (TK v The Queen) at [6]-[7]:
It seems to me that there are problems in an appellate court concluding that because a jury does not convict on one or more counts any conclusion as to the general creditworthiness of a complainant can be drawn. As the judgments in R v Markuleski point out there may be many reasons why a jury does not convict on a
particular count. The High Court has been careful to emphasise that an appellate court must allow for the advantage of the jury when considering questions arising under s 6(1) of the Criminal Appeal Act. The most significant advantage is assumed to be that of observing the witnesses as they give their evidence. It is a very significant step to conclude that the reason for the jury's decision to acquit on any count is that they were so unable to accept the complainant's evidence on that count that her evidence was not capable of founding a conviction on another count. The consequence of such a decision by an appellate court is that the jury has not been faithful to the fundamental directions from the trial judge, namely that the Crown must prove its case beyond reasonable doubt on each count. As the law presumes that the jury has been faithful to a trial judge's directions: HML v The Queen (2008) 235 CLR 334 at 364 [52] per Kirby J; Gilbert v The Queen (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J. The starting point for any analysis
must assume that this is so. The burden of satisfying the appellate court that
there has been a miscarriage of justice rests upon the appellant.It is important to remember when considering the problem of inconsistent verdicts that a jury does not have to be satisfied beyond reasonable doubt that all of a complainant's evidence is an accurate or even truthful account of all of the facts relevant to all of the counts. It may be, and in fact may often be the case, that a complainant's recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts. As Wood CJ at CL pointed out in R v Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events. It may be that, having been reminded of the problems of uncorroborated evidence by the trial judge, before a jury convicts on any count where the primary evidence is of the complainant, it will seek out matters in the surrounding evidence which are consistent with the complainant's account. It may also be that where the jury finds amongst the surrounding evidence that there are some inconsistencies with the complainant's evidence it will be unable to return a guilty verdict on a particular count.
(emphasis added)
Counts 19, 20, and 21
60. There is a clear and rational explanation for the acquittals with respect to counts 19 and 20. In relation to count 19, this act occurred in the context of the photo shoot. In the process of taking photographs, the appellant told SH to remove her underwear. SH removed her underwear. The appellant told SH that he had clients who enjoyed "tasteful nude photography". The appellant directed SH to lay on the bed and began taking close images of her vagina. While this was occurring, the appellant used his fingers to adjust SH's labia and, during the process, took images of her vagina. SH said she was uncomfortable and did not consent to this.[10] During cross-examination, SH conceded that the appellant asked her about touching her genitalia during the photography to ensure a better picture (T224.5-18):
… Before he touched your genitalia he indicated to you what it was that he was going to
do; he was going to make your genitalia look a particular way, or look better for the
photograph?--- Yes. Yes, he said that he would – that he’d put it in different ways to make
it look more, I don’t know, erotic.
And he said that to you before ever touching it. That’s correct isn’t it?---It was more as hewas motioning to touch.
Before he touched it though, correct?--- As he was reaching out to touch my genitalia.
And you didn’t say, ‘No, stop. I don’t want you to do that’. You didn’t say anything like that did you?--- No, but I didn’t consent either.
[10] T224.17.
61. About 10 minutes later, the appellant said words to the effect, "Okay. Do you want to do the training now?" and told SH he would teach her how to perform massages on clients.[11] The appellant directed SH to lay on her stomach then began to massage SH on her back, shoulders, legs and buttocks. Then the appellant directed SH to roll onto her back and he continued to massage her breasts, thighs and pubic region. SH froze, but did not say anything to the appellant.
[11] MFI 8 – Q/A 97.
62. There is a clear distinction to be made with the verdict of guilty on count 21. This is the case without the jury having entertained a general doubt about SH's credibility. With respect to count 19, while not doubting the complainant and her lack of consent to what occurred, the jury may well have considered that in the circumstances, where the appellant asked SH to touch her genitals in the course of taking photographs, and received no overt sign that she objected, they were not satisfied beyond a reasonable doubt the appellant knew, or was reckless as to, SH's lack of consent to this act. In relation to count 20, SH agreed when the appellant asked if she wanted to do the training, and he said it would involve "massage", but did not say it would involve foreplay or sexual acts.[12] SH said she was led to believe it involved general matters, but not sexual acts because "I didn't think he was referring to sex or foreplay because most adults understand what that is".[13] SH said that during the massaging, the appellant was explaining things to her, but that he was giving off a sexual "vibe".[14]
[12] T224.45-225.1.
[13] T225.1-15.
[14] T228.1-5.
63. Without doubting SH's credibility generally, and it being open to be satisfied that the appellant's conduct may well have been for its own sexual gratification, the jury may not have been satisfied beyond a reasonable doubt at the point the appellant was massaging SH that he knew or was reckless as to SH's lack of consent, where he had told her about massaging, and there was no overt objection. Notwithstanding the acquittals with respect to counts 19 and 20, concerning the photography and the massage, the jury were entitled to be satisfied beyond reasonable doubt with respect to count 21. After the appellant directed SH to massage him, the appellant pressured SH to give him oral sex to "get him off',[15] and to test her willingness to perform oral sex on clients. The appellant continued to put pressure on SH to perform oral sex and asked her questions to the effect "can you do this?", "can you cut it in this
industry?”.[16] The appellant retrieved a condom, placed it on his erect penis and had
SH perform oral sex on him for about 10 minutes until the appellant ejaculated. Given these circumstances, the jury were clearly entitled to be satisfied that, not only did SH not consent to this, but that the appellant must have known she was not freely or voluntarily consenting because of the pressure he was placing on her with respect to her employment.
[15] MFI 8 - Q/A 76-78; 133
[16] MFI 8 - Q/A 165-167; T216.1.64. The trial judge gave proper directions concerning the onus and standard of proof, separate counts, and the assessment of evidence - including that the jury must carefully examine a complainant's evidence and that, if they doubted her evidence on one count, they should consider how that affected their consideration of the remaining counts involving a complainant (see Annexure B - Note of Key Directions): see ED v The Queen at [43]; see also White at [118]-[119]. The directions were clear. As underlined by Simpson J in AH v The Queen at [63]:
In this respect, it is apposite to recall the trial judge’s direction… That direction was a strong indication to the jury that any doubt that it had about the complainant’s credibility should be “factored in” to their consideration of her credibility on other counts. Even in the face of that direction, the jury was satisfied of the complainant’s reliability in relation to
Count 1.
65. The different verdicts are consistent with the jury conscientiously applying the correct and relevant directions given by the primary judge.
Count 21
66. The appellant also raises the issue of SH's tongue modification as a basis for the verdict on count 21 being unreasonable. The appellant's counsel asked whether SH had "undergone a tongue modification" where her tongue was cut down the middle. To which SH agreed (T228.10-16). It was clear from the verdict that the jury did not find this factor to cause them to doubt SH's evidence. There is no basis to find that this factor was such to render SH's evidence as to oral sex so implausible as to have compelled the jury to entertain a doubt.
67. There is a "rational explanation for the acquittals other than doubt about the complainant's credibility": TK v The Queen at [130] per Simpson J. The verdicts are a reflection of the jury taking a conscientious, cautious and considered approach to the discharge of their responsibility concerning the facts. It does not perforce reflect a want of confidence in the evidence of the SH: see MFA v The Queen at [34] per Gleeson CJ, Hayne and Callinan JJ; White at [141] per R A Hulme J.
68. Further, the evidence with respect to count 21 cannot be said to otherwise be unreasonable. There was a proper basis in light of SH's evidence and the tendency evidence for the jury to be satisfied beyond a reasonable doubt of this count. Accordingly, this Court would be satisfied that upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt of the appellant's guilt with respect to count 21: see M v The Queen at [494]-[496].
Conviction Appeal: Conclusion
69. The matters identified by the appellant do not call into question the verdicts. There is,
in my view, no basis for this Court to interfere with the jury’s’ verdicts. The appeal
against conviction should be dismissed.
Sentence Appeal (ACT)
70. The appellant appeals against the severity of the individual sentences and the totality of the sentence.
Sentences Imposed
71. The trial judge imposed the following sentences for the ACT offences:
Complainant/Charge/Maximum
Count Sentence of Imprisonment Imposed Penalty
KN – Act of indecency – 7 years 9 months
Count 1
imprisonment (13 July 2020 – 12 April 2021) KN – Sexual intercourse without 2 years and 6 months
Count 3
consent – 12 years imprisonment (13 January 2021 – 12 July 2023) BG – Sexual intercourse without 2 years and 6 months
Count 5
consent – 12 years imprisonment (13 July 2021 – 12 January 2024) BG – Sexual intercourse without 2 years and 6 months
Count 6
consent – 12 years imprisonment (13 May 2021 – 12 November 2023) BG – Act of indecency – 7 years 12 months
Count 7
imprisonment (13 July 2021 – 12 July 2024) BU – Act of indecency – 7 years 9 months
Count 8
imprisonment (13 January 2024 – 12 October 2024) BU – Sexual intercourse without 2 years and 6 months
Count 9
consent – 12 years imprisonment (13 July 2022 – 12 January 2025) BU – Act of indecency – 7 years 9 months
Count 10
imprisonment (13 January 2024 – 12 October 2024) BU – Sexual intercourse without 2 years and 6 months
Count 11
consent – 12 years imprisonment (13 January 2023 – 12 July 2025) BU – Act of indecency – 7 years 12 months
Count 12
imprisonment (13 October 2023 – 12 October 2024) BU – Sexual intercourse without 2 years and 6 months
Count 13
consent – 12 years imprisonment (13 April 2023 – 12 October 2025) BU – Sexual intercourse without 2 years and 6 months
Count 14
consent – 12 years imprisonment (13 July 2023 – 12 January 2026) DL – Act of indecency – 7 years 12 months
Count 15
imprisonment (13 July 2025 – 12 July 2026) DL – Sexual intercourse without 2 years and 6 months
Count 16
consent – 12 years imprisonment (13 April 2024 – 12 October 2026) DL – Sexual intercourse without 2 years and 6 months
Count 17
consent – 12 years imprisonment (13 July 2024 – 12 January 2027) SH – Sexual intercourse without 2 years and 3 months
Count 21
consent – 12 years imprisonment (13 April 2025 – 12 July 2027) BI – Sexual intercourse without 2 years and 6 months
Count 22
consent – 12 years imprisonment (13 July 2025 – 12 January 2028) BI – Sexual intercourse without 2 years and 3 months
Count 23
consent – 12 years imprisonment (13 April 2026 – 12 July 2028) NH – Sexual intercourse without 2 years and 6 months
Count 24
consent – 12 years imprisonment (13 July 2026 – 12 January 2029) NH – Sexual intercourse without 2 years and 6 months
Count 25
consent – 12 years imprisonment (13 January 2027 – 12 July 2029)
72. For the Commonwealth offence, being an offence of domestic trafficking in children (s 271.7 of the Commonwealth Criminal Code), the appellant was sentenced to 4 years and 10 months imprisonment commencing on 13 February 2018 to 12 December 2022. The primary judge noted that as the Commonwealth offence preceded the ACT offences, it should be served first in time. The primary judge imposed a fixed term and declined to set a non-parole period (at [52]). For the ACT offences, the primary judge regarded the appellant's prospects for reoffending to be low. Nevertheless, the primary judge noted that it would be the appellant's first time in custody. The primary judge imposed a non-parole period commencing on 13 July 2020 to 12 May 2024: see Annexure A. Thus, as outlined earlier, the overall sentence (ACT and Commonwealth) was 11 years and 5 months, and the appellant could apply for parole after serving 6 years and 3 months.
330. However, the primary judge made the first count of the Territory Offences wholly concurrent with the sentence imposed for the Commonwealth Offence. Count three of the Territory Offences was also substantially concurrent with the Commonwealth Offence. Given that the Commonwealth Offence was entirely separate from the Territory Offences, in making these adjustments, the primary judge has manifestly taken into account the loss of a parole period in relation to the Commonwealth Offence.
331. Accordingly, whether viewed in isolation or as part of the sentence overall, we are not satisfied that the sentence imposed for the Commonwealth Offence was manifestly excessive.
The Territory Offences
The appellant’s specific complaints
332. In addition to an overarching submission that the individual sentences and the totality of the sentences were severe, or manifestly excessive, the appellant made a number of specific complaints. They have been summarised and grouped as follows:
(a) Objective seriousness:
i.
He disputes that the offences were “reasonably serious examples” of digital and oral intercourse, as “general” or “penile/vaginal intercourse”
is more serious.
ii. His “pattern of conduct” was a procedure to ensure that the workers
were given all of the information required, such as an initial phone call, a meeting, a tour of the premises, a profile set up, a photoshoot, and then training.
iii. He maintains that he has reasons for training that were legitimate, which included foreplay and massage.
iv. His ignorance that he was in a position of authority (which he attributes to a lack of clarity in the brothel licensing legislation) should have been considered.
(b)
Victim impact: The appellant does not believe he is “solely responsible for all of the trauma that the complainants” suffered or are suffering, as there “were clearly other circumstances prior to and post working with [him]”.
(c)
Prospects of rehabilitation / reoffending: It will be impossible for him to re- offend as he will never be granted a licence to operate a brothel or escort agency anywhere in Australia. That should have been taken into account in relation to his sentence.
(a) The objective seriousness of the offences
333. The primary judge’s findings in relation to the objective seriousness of the Territory
Offences are set out at [111]-[114] of the sentencing reasons as follows (emphasis added):
[111] In relation to the ACT offences, the following general observations can be made.
(a) They occurred over a period of approximately 12 months; there were not one or two isolated incidents. (b) They involved seven discrete episodes of misconduct (generally, each episode entailed several offences), and each episode affected a different complainant. (c) In most cases, the complainants were vulnerable in the sense that they were young women who were desperate to earn money and who had lacked prior experience in the sex industry, so did not know what to expect of “training”.
(d) The offender was a much older man.
(e) The offender was aware of the complainants’ vulnerability as, prior to committing offences against most, if not all, complainants, he had learned of the complainant’s unfortunate personal circumstances and knew that she needed the employment.
(f) The offender took advantage of the complainants’ naivety and the element of surprise and associated shock (for obvious reasons, the complainants were not
expecting that “training” would involve sexual activity) to engage in sexual activity
for his own sexual gratification.
(g) To himself, the offender may have rationalised his conduct as “training” in the sense of “breaking in” the complainants so that they could cope with the
challenging nature of sex work, but that was a very convenient rationalisation; the offender must have understood that his conduct served to satisfy his own desire for sexual gratification. The fact that there may have been an element of legitimate training (for example, massage training) is not a significant mitigating consideration.
(h) In relation to most offences of sexual intercourse, no protection was used, raising the spectre of sexually transmitted infection. (i) The offences were planned; in each case, the offender adopted a similar pattern
of conduct.
(j)
As a general proposition, digital and oral intercourse are less serious than penile/vaginal intercourse. However, in this case, the digital and oral
intercourse that occurred were reasonably serious examples of that type of
sexual intercourse.(k)
Similarly, the indecent acts that occurred were relatively serious examples of such conduct.
(l) Inevitably, each victim suffered significant psychological harm. [112] On the other hand, I accept that:
(a) Each victim was an adult.
(b) The offender acted alone.
(c)
The sexual intercourse was digital intercourse or oral sex, not penile/vaginal intercourse.
(d) There was no actual or threatened violence and no weapon was involved.
(e)
Each offence was of relatively short duration and I infer that the whole of each episode was of relatively short duration.
(f) The offences were not associated with gratuitous humiliation or degradation. (g)
In the case of each victim, her ongoing psychological injury is probably multifactorial.
[113] At the trial, the prosecution argued that lack of consent could be established via a variety of routes, which differed as between different charges and complainants: see MFI 18.
[114] In the case of each complainant, the jury may have found that the offender had abused his position of authority as employer or prospective employer, thereby vitiating any consent (rather than that there was an actual lack of consent). If so, the offences are no less objectively serious because lack of consent was established in that way. However, it does mean that, in sentencing the offender, his abuse of authority
cannot be taken into account under s 33(1)(u) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) as an additional matter aggravating the objective seriousness of the offences.
334. It can be seen that rather than describing the objective seriousness of the offences in terms of low-range or medium-range, the primary judge identified the features of the case that informed the objective seriousness of the offences. That approach was
consistent with what was said by the Court of Appeal in R v Toumo’ua [2017] ACTCA
9; 12 ACTLR 103 at [24]:
… It is preferable for a sentencing judge to confine themselves to identifying the particular
features of the case that inform the objective seriousness of that case.
335. The appellant’s first complaint relates to the finding at [111](j) of the sentencing
reasons extracted above. The point has no substance, because this the finding was
in fact in the appellant’s favour. There is no general proposition that one form of
sexual intercourse is more or less serious than another. In The Queen v Miller [2019]
ACTCA 25; 279 A Crim R 232 at [29]:Sexual penetration for the purposes of the offence of sexual intercourse without consent may take different forms, but there is no presumption that any one form is more or less serious than another: Ibbs v The Queen (1987) 163 CLR 447 at 452. In particular, digital penetration is not to be generally regarded as less serious than penile sexual intercourse: R v Hibberd [2009] NSWCCA 20; A Crim R 1 at [21].
336. In R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [19]–[26], Simpson J reviewed
the authorities on the question of whether some acts, such as penile-vaginal penetration, might be taken to be more serious than others, and what factors should be considered in assessing the objective seriousness and came to the same conclusion.
337. The appellant’s next complaint is in relation to the finding at [111](i) above. The appellant’s submission is more of a comment on the finding, as opposed to raising
any error by the primary judge as to the gravity of the offence. It is an attempt to reagitate an argument that his conduct was part of a business practice, his training method being one that he perceived to be legitimate.
338. The third complaint concerning training methods relates to [111(g)] above and falls
into the same category. The appellant’s view of his conduct continues to be
misconceived. At best, it is a personal rationalisation, as the primary judge found.
339. The fourth complaint concerns the appellant’s asserted lack of understanding that as manager of a brothel he was in a “position of authority” over those who were working
there or applying to work there. His asserted confusion has no bearing on the
sentence because of the words in [114] of the primary judge’s sentencing reasons,
emphasised and extracted above. One way in which the jury may have found the appellant guilty is on the basis of an abuse of a position of authority, which makes that an element of the offence. If the conduct is part of the elements of the offence itself, it cannot be separately taken into account as an aggravating factor. The primary judge therefore excluded any question of position of authority from the considerations her Honour considered to be material to the objective seriousness of the offence.
340. There is otherwise no error evident in relation to the findings of objective seriousness made by the primary judge in relation to sexual intercourse without consent. In Jurj v The Queen [2016] VSCA 57 at [80] (cited in R v Palmer [2017] ACTSC 357 at [22]) a number of features commonly taken into account in assessing the gravity of this particular type of offence were listed as follows:
• whether the offence was premeditated; • whether the offender acted alone or in company; • how long the attack lasted and whether the victim was raped more than once; • whether the offending involved violence or threats of violence; • whether a weapon was used; • whether the victim was injured in the course of the rape; • whether the victim was humiliated or degraded; • whether the offender used a condom; • whether the victim was particularly vulnerable; and • whether the offender ignored warnings or protests by the victim.
341. While this is neither an exhaustive nor a prescriptive list, when compared against the considerations taken into account in the present case, it serves to demonstrate the
correctness of the primary judge’s approach to the assessment of objective
seriousness in relation to the offences of sexual intercourse without consent.
342. Presumably due to the common circumstances in which the offences were committed, the primary judge grouped the assessment of the objective seriousness of the acts of indecency offences together with the offences of sexual intercourse without consent. There was no submission that her Honour separately erred in relation to any distinguishing feature of those offences.
(b) Victim Impact
343. The primary judge took into account the impact on each victim, pursuant to s 33(1)(f)
of the Crimes (Sentencing) Act 2005 (ACT) (CS Act). Her Honour’s findings were set
out after considering the facts in relation to each count: see sentencing reasons at [66]-[67] (KN), [72] (BG), [77] (BU), [83]-[85] (DL), [89] (SH), [95]-[100] (BI) and [106]- [110] (NH).
344. Five complainants provided victim impact statements, summarised as follows:
•
KN – who was 26 years old at the time of the offending, described having recurring nightmares and difficulty sleeping. KN also experiences acute anxiety triggered by places and certain scents, dissociation, panic attacks, depression, and associated fatigue.
•
DL – who was 27 years old at the time of the offending, described the offences making her feel vulnerable. DL has suffered a decline in her mental health after the offences, and reported that she began to self- sabotage. She temporarily lost custody of her children. DL continues to struggle with intrusive thoughts and see a psychologist, although she has
“rebuilt her life”.
• SH – who was 22 years old at the time of the offending, described the offending as having a significant impact on her confidence with respect to relationships and employment. SH also described a decline in her physical health, and considers the stress related to the offence “reactivated an eating disorder”. She described becoming disconnected from her family
and continues to see a therapist.
•
BI – who was 20 years old at the time of the offending, described experiencing suicidal thoughts, social difficulties, nightmares and sleeping difficulties as well as hypersensitivity around men. BI considered her continued feelings of depression and anger have impacted her ability to engage in work or study. She has attended weekly therapy for the past two years.
•
NH – who was 21 years old at the time of the offending, described being in a dark place before seeking out employment with the appellant. NH noted she had recently separated from her partner, been forced to move, had left her job, was unable to pay her bills and was facing eviction. NH
commented she was “extremely depressed” and had relapsed into drug
addiction prior to working with the appellant. She commented the training made her feel disgusting but was convinced sex work was the only option for her. After leaving the industry, NH became severely depressed and was hospitalised after attempting suicide. NH continues to take medication for depression and anxiety and is being treated by several psychologists.
345. For BG, who did not provide an impact statement, the primary judge noted (at [72]) the significant emotional impact the incident had on the victim, a finding which was open to her Honour to make on the evidence given during the trial. Similarly in
relation to BU, the primary judge found (at [77]) that the incident had “a very significant emotional impact” on the complainant, who “did not want to engage in any of the numerous sexual activities. It has an horrendous introduction to sex work.”
346. The subjective view of the appellant as to his contribution to the “trauma” suffered by
complainants may well be broadly correct, in that each complainant was in difficult personal circumstances prior to meeting the appellant. However, to acknowledge the vulnerabilities of these women may arguably heighten the impact upon them. On the evidence they gave, many were without a family support network and/or equipped with financial and even educational resources that may have helped them to deal with
the psychological and emotional impact of the appellant’s conduct. The appellant’s
argument in no way detracts from the clear fact that the offences had a significant
impact on each of the victims and there is no error in the primary judge so finding.
(c) Subjective Circumstances and prospects of rehabilitation / reoffending
347. The appellant’s submission as to his prospects of reoffending being low on the basis
that he would be unable to hold a brothel licence again similarly does not establish
any error. The primary judge expressly found that the appellant’s prospects of
reoffending were low ([148] of the sentencing reasons) and had earlier taken into account (at [132]) that the offender had no intention of returning to work in the sex industry.
348. Moreover, her Honour dealt with the likelihood of the appellant reoffending in setting out and actively considering matters that were relevant to the question in the sentencing reasons, such as:
(a) how to treat the appellant’s criminal history (at [120]-[124]), (b) protective factors such as the appellant’s good work history ([129]), (c) the appellant’s willingness to engage in treatment programs ([134]); and (d) and acceptance that the appellant had demonstrated contrition and remorse (137).
349. The appellant has not sought to disturb that assessment, but rather to confirm it. No
error has been established in relation to that aspect of the primary judge’s reasoning.
Were the individual sentences imposed otherwise manifestly excessive?
350. What was critical for the primary judge was general deterrence. In this regard, her Honour stated at [143]:
The facts of the offences call for a strong message of general deterrence. The sex industry is notorious for attracting and exploiting persons who are vulnerable, whether for emotional, financial, or other reasons. It is important that those who operate sex businesses appreciate that a sex worker has just as much right as any other person to control what happens to their own body. They are not to be objectified and treated as chattels.
351. The appellant’s disagreement with the primary judge’s emphasis on general
deterrence has already been discussed in relation to the Commonwealth Offence (at [303]-[331] above). Again, the nature of the Territory Offences was such as to call for general deterrence (as well as adequate punishment and denunciation). It has been observed elsewhere that sex workers are often vulnerable to exploitation. The fact they work in such an industry is taken advantage of, and the right they enjoy to bodily integrity like all members of the community is totally disregarded by those intent on satisfying their own sexual gratification: see, for example, Michael v Western Australia [2008] WASCA 66; 183 A Crim R 348; Onnis v The Queen [2013] VSCA 271 (Onnis).
352. In Wyper v R; R v Wyper [2017] ACTCA 59 at [114]-[115], the Court of Appeal accepted the following principles as relevant to sentencing in sexual offences;
(a)
Sexual offences are regarded as objectively serious offences by the courts;
(b)
The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence;
(c)
A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.
353. Whether there were comparable cases was considered by the primary judge at [139]- [142] of the sentencing reasons, where her Honour noted there were no directly comparable cases in this jurisdiction. Accordingly, with that caveat, her Honour discussed Onnis and R v Hoyle (No 2) [2017] ACTSC 175. It is unnecessary to repeat the details of the cases here as no party submitted those cases were inappropriate and her Honour considered them to be only somewhat comparable in any event.
354. On the proper application of the above principles, having regard to the objective seriousness of each of the sexual intercourse without consent offences, the relevant
purposes of sentencing and the maximum penalty of 12 years’ imprisonment, and in
circumstances where no error has otherwise been established, it cannot be said any of the individual sentences imposed for each of those offences was manifestly excessive.
355. Similarly, in respect of the act of indecency offences, as against a maximum penalty
of 7 years’ imprisonment and having regard to the objective seriousness of the
offending, we are not persuaded that individual sentences of between 9 and 12
months’ imprisonment were beyond the range available.
E. Was the overall sentence manifestly excessive? 356. The final question is whether the combined individual sentences resulted in a total sentence that was manifestly excessive; that is, whether the sentence unreasonably exceeded the total sentence appropriate to reflect the appellant's criminal behaviour.
Applicable principles
357. In Dawson v The Queen [2019] ACTCA 9, the Court set out the proper approach to concurrency and accumulation at [37]:
As to concurrence and accumulation, the principles were set out in O’Brien at [26], where
this Court said:
“The relevant principles in relation to the fixing of sentences for multiple offences and
the consideration of totality are also well settled. They include the following:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623 - 624. (b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is ‘just and appropriate’ for all the offences: Mill at 63.
(c)
A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)
Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v
The Queen (2007) 168 A Crim R 41 at [27].”
358. A number of appellate courts throughout Australia have noted that the severity of sentences increases at a greater rate than the linear increase in their length: see Thomas v R [2019] NSWCCA 265 at [37] and the authorities there-cited. See also Baghdadi v The Queen [2012] NSWCCA 212 at [50], where the non-parole period was significantly reduced, applying R v MAK [2006] NSWCCA 381; 167 A Crim R 159 (R v MAK).
359. With regard to the setting of the non-parole period, it need hardly be said that this is to be the minimum that the judge considers appropriate for the offender to serve for the offence: see Power v The Queen [1974] HCA 26; 131 CLR 623 at 627. There should be an appropriate relationship between the head sentence and the non-parole period: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610 (Lowe).
The concurrent structure of the sentences and totality considerations
360. The primary judge did not set out the principles her Honour applied as to totality or the reasoning behind the sentence structure imposed. However, in this case, it is readily apparent that the sentence was crafted paying careful regard to the established principles for concurrency and totality, set out above. The description below of the sentence structure is better appreciated by viewing the graph that was before the Court, which has been replicated and annexed to the judgment of Loukas- Karlsson J as Annexure A.
361. Reference has already been made to the Commonwealth Offence being structured so that even though it was entirely separate, it was to be served concurrently with the first count of the Territory Offences and partially concurrently with the third count of the Territory Offences. These are the two offences relating to KN.
362. In relation to counts 5, 6, and 7 (the offences relating to BG), the primary judge’s
structure was as follows:
(a) counts 5 and 6 (each being sexual intercourse without consent) were almost entirely concurrent with each other. The term of imprisonment for count 6 began and ended 2 months earlier than the term imposed for count 5), (b) the majority of the sentence imposed for counts 5 and 6 was to be served concurrently with count 3, and (c) count 7 (the act of indecency), a term of 12 months, was 50% concurrent with count 5, and 50% consecutive, as well as partially concurrent with count 6 for a period of 4 months.
363. However, count 7 then entirely overlapped with count 9 in relation to a different
complainant (BU), which plainly demonstrates the primary judge’s concern to ensure the totality of the sentence was not “crushing” – that is, that the aggregate sentence was “just and appropriate”. There were seven offences referable to BU (counts 8 -14)
as seen in Annexure A. They were again structured so that each offence was to be served substantially concurrently. A similar pattern is then repeated with each complainant.
364. The non-parole period was set at approximately 55 per cent of the total term of imprisonment. That ratio was within the exercise of what is a wide discretion available to the sentencing judge, with no mathematical formula to be followed other than a guide that the period should not be disproportionate to the full term: see Inge v The Queen [1999] HCA 55; 199 CLR 295 at [59]; Taylor v R [2014] ACTCA 9 at
[19]. The primary judge’s reference to the length of the term of imprisonment and the
fact that this would be the first period that the appellant spent in custody indicates that a non-parole period of just over half the sentence was a further way the primary judge
structured the sentence so that it was not “crushing” overall.
365. The detailed and careful structure of the sentence (visually demonstrated in Annexure
A) and the primary judge’s additional comments referred to above show that
appropriate consideration was given to the applicable principles of totality and no error has been disclosed in their application to the present offences. In our view, the adjustments to the sentence structure, including the substantial concurrency of the terms and the setting of a non-parole period of 55%, were well within the wide discretion available to the primary judge. The sentence under consideration here is
long – a fact recognised by the primary judge – but that is a product of the number of offences and the nature of those offences. It may properly be said to reflect the “total criminality of the offender’s conduct”: see Jarvis v The Queen (1993) 20 WAR 201 at
207 per Ipp J and the cases there-cited.
366. For these reasons, the cumulative sentence is not a product of any error by the primary judge such as to warrant interference on the basis of manifest excess, and the appeal against sentence has not been substantiated.
Conclusion
367. The orders of the Court are as follows:
(a) Leave is granted to the appellant to rely upon the affidavits of Bradley Lester Grey affirmed 26 October 2020 and 8 February 2021. (b) In proceedings no. ACTCA 52 of 2019, the appeal against conviction is dismissed. (c) In proceedings no. ACTCA 12 of 2020, the appeal against sentence is dismissed. I certify that the preceding one hundred and eighty- two [182] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney and her Honour Acting Justice McWilliam.
Associate: Zoe Saunders
Date: 7 February 2022
ANNEXURE A TO THE JUDGMENT OF LOUKAS-KARLSSON J: Original Sentence
Eligible for Parole 13/5/2024
25% 50% 75% 100%
13/2/2018
12/7/2029
| Overall Sentence | 54.7% | 45.3% | (NPP: 6Y 3M, PP: 5Y 2M) |
13/2/2018 11 years 5 months
| Commonwealth Charge | 12/12/2022 |
ANNEXURE B TO THE JUDGMENT OF LOUKAS-KARLSSON J:
Note of Key Directions
R v Grey
Note of key directions
• The jury decides the facts on the basis of the evidence (oral evidence and exhibits) and applies the judge’s legal directions in order to arrive at the verdicts. • Each of the charges must be considered separately and a separate verdict must be given on each charge. • police interview and also remotely and their evidence should not be given any greater
In accordance with standard practice, some witnesses gave evidence via an initial support person present. No adverse inference can be drawn against the accused because of these procedures.
• The verdicts must be logically consistent (no compromise). • Each verdict must be unanimous. • It is up to the prosecution to prove beyond reasonable doubt that the accused is guilty, ie the prosecution must prove each legal element of an offence beyond reasonable doubt. The accused does not have to prove (or disprove) anything. • As the prosecution case on each charge depends upon the complainant's evidence, you should consider her evidence carefully. It is not up to the accused to prove why the complainant may have lied or been mistaken. • If you have a reasonable doubt about a complainant’s evidence on one charge, consider whether that causes you to have a reasonable doubt about her evidence on other charges. • To prove a charge of engaging in sexual intercourse without consent, the prosecution must prove each of the following three elements beyond reasonable doubt:
1. The accused intentionally engaged in the alleged act of sexual intercourse. 2. act).
A. The complainant did not consent (did not freely and voluntarily agree to the B. The complainant’s consent was negated because:
a)
The accused was in a position of authority over the complainant (had the “right” to direct her actions) and his abuse of that position caused her to consent; or
b)
By saying and/or doing something, the accused made a fraudulent (dishonest) misrepresentation of fact to the complainant and his misrepresentation caused her to consent.
3. For 2A: The accused was reckless about whether the complainant consented or
4. (realised that she may not be consenting but carried on regardless)
orFor 2B: The accused knew of the negating circumstance (that he was in a position of authority over the complainant and his abuse of that position caused her consent or that he had made a fraudulent misrepresentation of fact to the complainant and his misrepresentation caused her consent)
•
To prove a charge of attempting to engage in sexual intercourse without consent, the prosecution must prove each of the following three legal elements beyond reasonable doubt:
1.
The accused made a real and deliberate attempt to then and there have sexual intercourse with the complainant.
2.
A. The complainant did not consent (did not freely and voluntarily agree to the act)
or
B. The complainant’s consent was negated because:
a)
The accused was in a position of authority over the complainant (had the “right” to direct her actions) and his abuse of that position caused her to consent; or
b)
By saying and/or doing something, the accused made a fraudulent (dishonest) misrepresentation of fact to the complainant and his misrepresentation caused her to consent.
3. or
For 2A: The accused knew that the complainant did not consent position of authority over the complainant and his abuse of that position caused her consent or that he had made a fraudulent misrepresentation of fact to the complainant and his misrepresentation caused her consent)
• To prove a charge of committing an act of indecency on/ in the presence of a person without consent, the prosecution must prove each of the following four legal elements beyond reasonable doubt:
1. The accused intentionally committed the act. 2. In the circumstances in which it was committed, the act was indecent according to ordinary community standards. 3. act).
A. The complainant did not consent (did not freely and voluntarily agree to the B. The complainant’s consent was negated because:
a)
The accused was in a position of authority over the complainant (had the “right” to direct her actions) and his abuse of that position caused her to consent; or
b)
By saying and/or doing something, the accused made a fraudulent (dishonest) misrepresentation of fact to the complainant and his misrepresentation caused her to consent.
For 3A: The accused was reckless about whether the complainant consented position of authority over the complainant and his abuse of that position caused her consent or that he had made a fraudulent misrepresentation of fact to the complainant and his misrepresentation caused her consent)
•
Evidence of complaint may be relevant to the complainant’s credit (believability). Consider whether there was a delay in complaint, the terms of any complaint and whether any delay reflects adversely on the complainant, or whether there were good
reasons for any delay.
•
A proven tendency to think or act in a particular way is a circumstance that may assist the prosecution to establish beyond reasonable doubt that the accused acted as alleged on occasion/s charged in the indictment. However, it is not direct evidence that a charge/act occurred, merely a relevant circumstance. Evidence can only be used in this way if:
a)
You are satisfied beyond reasonable doubt that the act/s allegedly showing the tendency did occur, and
b)
You are satisfied that it/ they show the existence of the asserted tendency as at the date of the charge being considered
•
The accused was entitled to exercise his right to silence and decline to give evidence. You cannot draw an adverse inference against him as a result.
ANNEXURE C TO THE JUDGMENT OF LOUKAS-KARLSSON J: RE-SENTENCE
Eligible for Parole 13/7/2023
25% 50% 75% 100% 13/2/2018
12/12/2028
| Overall Sentence | 50% | 50% | (NPP: 5Y 5M, PP: 5Y 5M) |
13/2/2018 10 years 10 months
| Commonwealth Charge | 12/12/2022 |
9 T385.Section 16A of the Commonwealth Crimes Act has since been amended with effect for any sentence imposed on or after 20 July 2020. As a result of the amendment, the Court is now required to take into account if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence.
South Wales, 2002).
(FT: 4Y 10M)
13/7/2020 12/4/2021
Count 1 [KN] (FT: 9M)
13/1/2021 12/7/2023
Count 3 [KN] (FT: 2Y 6M)
13/7/2021 12/1/2024
Count 5 [BG] (FT: 2Y 6M)
13/5/2021 12/11/2023
Count 6 [BG] (FT: 2Y 6M)
13/7/2023 12/7/2024
Count 7 [BG] (FT: 12M)
13/1/2024 12/10/2024
Count 8 [BU] (FT: 9M)
13/7/2022 12/1/2025
Count 9 [BU] (FT: 2Y 6M)
13/1/2024 12/10/2024
Count 10 [BU] (FT: 9M)
13/1/2023 12/7/2025
Count 11 [BU] (FT: 2Y 6M)
13/10/2023 12/10/2024
Count 12 [BU] (FT: 12M)
13/4/2023 12/10/2025
Count 13 [BU] (FT: 2Y 6M)
13/7/2023 12/1/2026
Count 14 [BU] (FT: 2Y 6M)
13/7/2025 12/7/2026
Count 15 [DL] (FT: 12M)
13/4/2024 12/10/2026
Count 16 [DL] (FT: 2Y 6M)
13/7/2024 12/1/2027
Count 17 [DL] (FT: 2Y 6M)
13/4/2025 12/7/2027
Count 21 [SH] (FT: 2Y 3M)
13/7/2025 12/1/2028
Count 22 [BI] (FT: 2Y 6M)
13/4/2026 12/7/2028
Count 23 [BI] (FT: 2Y 3M)
13/7/2026 12/1/2029
Count 24 [NH] (FT: 2Y 6M)
13/1/2027 12/7/2029
Count 25 [NH] (FT: 2Y 6M)
13/2/2018 19/12/2020 27/10/2023 4/9/2026 12/7/2029
Parole period (PP) Non-parole period (NPP) Fixed term (FT)
Copyright ‘ Judicial Commission of New South Wales, 2021
(FT: 4Y 10M)
13/12/2019 12/9/2020
Count 1 [KN] (FT: 9M)
13/6/2020 12/12/2022
Count 3 [KN] (FT: 2Y 6M)
13/12/2020 12/6/2023
Count 5 [BG] (FT: 2Y 6M)
13/10/2020 12/4/2023
Count 6 [BG] (FT: 2Y 6M)
13/12/2022 12/12/2023
Count 7 [BG] (FT: 12M)
13/6/2023 12/3/2024
Count 8 [BU] (FT: 9M)
13/12/2021 12/6/2024
Count 9 [BU] (FT: 2Y 6M)
13/6/2023 12/3/2024
Count 10 [BU] (FT: 9M)
13/6/2022 12/12/2024
Count 11 [BU] (FT: 2Y 6M)
13/3/2023 12/3/2024
Count 12 [BU] (FT: 12M)
13/9/2022 12/3/2025
Count 13 [BU] (FT: 2Y 6M)
13/12/2022 12/6/2025
Count 14 [BU] (FT: 2Y 6M)
13/12/2024 12/12/2025
Count 15 [DL] (FT: 12M)
13/9/2023 12/3/2026
Count 16 [DL] (FT: 2Y 6M)
13/12/2023 12/6/2026
Count 17 [DL] (FT: 2Y 6M)
13/9/2024 12/12/2026
Count 21 [SH] (FT: 2Y 3M)
13/12/2024 12/6/2027
Count 22 [BI] (FT: 2Y 6M)
13/9/2025 12/12/2027
Count 23 [BI] (FT: 2Y 3M)
13/12/2025 12/6/2028
Count 24 [NH] (FT: 2Y 6M)
13/6/2026 12/12/2028
Count 25 [NH] (FT: 2Y 6M)
13/2/2018 27/10/2020 12/7/2023 27/3/2026 12/12/2028
Parole period (PP) Non-parole period (NPP) Fixed term (FT)
Copyright ‘ Judicial Commission of New South Wales, 2021
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