Ha v R
[2014] VSCA 335
•18 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0067
| VAN LAN HA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 November 2014 |
| DATE OF JUDGMENT: | 18 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 335 |
| JUDGMENT APPEALED FROM: | DPP v Ha (Unreported, County Court of Victoria, Judge Gaynor, Sentence 20 March 2014) |
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CRIMINAL LAW – Conviction – Views and inspections – Judge’s summary– Jury inspected crime scene – Questions asked but not recorded – Judge declined to summarise view – Acquiescence by defence counsel – No miscarriage of justice – Observations about importance of summarising what took place– Evidence Act 2008, ss 53, 54.
CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether verdicts unsafe and unsatisfactory – Whether jury entitled to accept complainant’s account – Distress – Prompt complaint – DNA evidence – Application refused.
CRIMINAL LAW – Appeal – Sentence – Indecent assault (eight charges) – Total effective sentence 4 years, non-parole period 2 years – Whether manifestly excessive – Prior offending of similar character – Victim was young employee – Breach of trust – Importance of specific deterrence – Application refused.
CRIMINAL LAW – Appeal – Sentence – Serious sexual offender – Judge did not make required declaration – whether omission able to be corrected on appeal – No power to correct – Sentencing Act 1991, s 6F, s104A, Criminal Procedure Act 2009, ss 312, 325.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | David Barrese and Associates |
| For the Crown | Mr P B Kidd SC with Mr C T Carr | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. His Honour’s discussion of the procedures to be adopted when a jury is taken for a view will provide invaluable guidance for trial judges. For the reasons which his Honour gives, I too would refuse both applications for leave to appeal.
WEINBERG JA:
I agree with Priest JA that leave to appeal against both conviction and sentence should be refused. I would add only this. I particularly endorse his Honour’s observations regarding the importance of a record of some sort being made of what transpired during the course of a view.
This was perhaps less critical before the enactment of the Evidence Act 2008. As s 54 makes clear, a view in a criminal trial is no longer merely a mechanism for enabling the jury to better understand the evidence that is to be, or has been, led. A view is now itself a separate and distinct source of evidence. For that reason, it is desirable that some record of what the jury saw, and any questions that they raised, be maintained.
If it is the case, as I understand it to be, that some trial judges regard this process as a pointless formality, they should perhaps reflect upon the need for an appellate court to have available to it as much information as can reasonably be gathered regarding the material upon which the jury may have based their verdict.
PRIEST JA:
Introduction
Following a trial in the County Court, on 7 February 2014 the jury found the applicant guilty of eight charges of indecent assault. On 20 March 2014, the trial judge sentenced him to a total effective sentence of four (4) years’ imprisonment,
upon which she fixed a non-parole period of two (2) years.
The applicant sought leave to appeal against both conviction and sentence. So far as conviction is concerned, the applicant relied on two grounds:
1. The Learned Trial Judge ordered an inspection of the pharmacy premises. Following the inspection, the Learned Trial Judge erred in that:
a.The Learned Trial Judge failed to adequately place the inspection on the record and failed at all to place the inspection on the record in the presence of the jury; and
b.The Learned Trial Judge failed to give the Jury directions at all following the view.
2. The verdicts of the Jury are unsafe and unsatisfactory; and in particular, a properly instructed and reasonable Jury ought to have entertained a reasonable doubt as to the Applicant’s guilt on each count.
With respect to sentence, there were three grounds, certain particulars of which were not pursued. In their final form, the grounds were:
1. The Learned Sentencing Judge erred by imposing individual sentences, a total effective sentence and a non-parole period that were manifestly excessive in that Her Honour:
i.Gave insufficient weight to the consequences to the applicant’s profession and career following conviction;
ii.Gave insufficient weight to the financial hardship that the applicant and his family will suffer as a result of the offending;
iii.Gave insufficient weight to the strong family support enjoyed by the applicant;
iv.Gave insufficiently weight to the hardship that the applicant and his family will suffer during his incarceration if he is unable to see his children;
v.Gave excessive weight to the age of the complainant, and the disparity of age between the applicant and the complainant;
vi.Gave excessive weight to the applicant’s prior offending;
vii.Failed to take into account sufficient (sic.), or at all, the delay between the applicant’s prior offending and the current offences, and the applicant’s good character during this time;
viii.Gave excessive weight to the breach of trust involved in the offending;
…
2. The Learned Sentencing Judge erred in making orders for cumulation that were manifestly excessive and resulted in a total effective sentence which did not take into account appropriately the principle of totality.
3. The Learned Sentencing Judge erred in sentencing the applicant on an erroneous factual basis by —
…
ii.Misstating the penalties imposed on the applicant for his prior offending.
For the reasons that follow, I would refuse both applications.
Overview
Before turning to consideration of the applications, it is necessary to provide a brief overview of the facts. I will discuss the evidence in greater detail when dealing with the assertion that the verdicts are unsafe and unsatisfactory.[1]
[1]See below [31]–[61].
The applicant, a pharmacist, operated a pharmacy in Cranbourne. At the time of the offending he was aged 50 years. The complainant, PS, was aged 14 years.
On 10 April 2012, the complainant and her mother went to the applicant’s pharmacy to make a purchase. During that visit, the complainant accepted the applicant’s offer to work at the pharmacy.
A little over a week later, on 18 April 2012, the complainant worked her fourth shift at the pharmacy. During the shift, whilst purporting to take PS’s measurements, the applicant touched her in and around her vaginal area and breasts, sucked her left nipple and kissed and licked her neck.
PS’s father collected her from work at 7.00pm, and she was taken to a family birthday dinner. During the evening, the complainant disclosed to her cousin that the applicant had indecently assaulted her.
Police were informed. As a result, swabs were taken from the complainant’s left nipple and neck. The presence of saliva was found in both swabs. DNA, which the applicant did not deny was his, was located in the swab from the complainant’s left nipple.
The View: Conviction — ground 1
An application by defence counsel that there be a view of the pharmacy premises was granted. It took place after the prosecutor’s opening to the jury and defence counsel’s response, but before any evidence was called.
Prior to the prosecutor’s opening, the trial judge told the jury that there were some matters that she needed to raise — some ‘housekeeping matters’, and some ‘matters of law’. The judge then told the jury the court sitting times, and gave directions of law concerning the role of the judge and jury; the presumption of innocence; the burden and standard of proof; the assessment of witnesses; the selection and role of the foreperson; and the need not to speak to anyone involved in the case. Toward the end of her remarks, the judge said:[2]
[2]Emphasis added.
So ladies and gentlemen, that is all I need to speak to you about at this time, except for this, in a moment [the prosecutor], on behalf of the prosecution, is going to outline to you the Crown case alleged against Mr Ha. After that you are going to be transported to Cranbourne. The alleged offences are said to have taken place in a chemist shop and you are being taken there to have what is called a view. And I need to talk to you about what happens on a view and what it means.
Now, when we go on the view you will be accompanied by — I will be there, I’ll be travelling with you separately, you’ll be taking the bus, counsel will be in attendance and their instructing solicitors, I'm not sure, and you will be looked after by my [Tipstaff] and my [Associate].
Now the purpose of this inspection of the chemist premises where the alleged offences are said to have taken place is to assist you to better understand the evidence of the witnesses. You may also use your observations as evidence in this case and as part of your deliberations. You are entitled to draw any reasonable inference from what you hear or otherwise notice during the inspection. Later in the trial I will give you directions about the need for care when drawing inferences.
An inference is, for example, you wake up in the morning, you see that it’s not raining but the cars are wet and the road is wet. You infer therefore it’s been raising [sic. raining] overnight. That’s an example of an inference. I’ll be talking to you about that when I come to give my charge at the end of the trial.
During the inspection you must not discuss the case in any circumstances where you can be overheard by anyone other than your fellow jurors. You don’t try to have a discussion with me, you don’t have a discussion with counsel, you don’t discuss your observations during the inspection with [the Tipstaff or Associate].
Remember that all jury discussions must take place in the privacy of the jury room. Do not speak to anyone other than a fellow juror or a court officer, that being [the Tipstaff or Associate], and do not let anyone other than these people speak to you. If you have a question concerning the inspection you should write it down and give it to my Tipstaff who will give it to me.
Now I’ve told you that you must not make any private investigations or enquiries about this case and that it is a criminal offence to do so. You are jurors and not investigators. That direction still applies and you must not visit this location a second time. All inspections must be conducted under court supervision, all right?
Very well, having said that to you about the view, I will now call on [the prosecutor] to commence the Crown opening, thank you.
Beyond these instructions, the judge gave no further directions — either in the course of the trial or in her charge — concerning the view.
When the Court next resumed following the view, the prosecutor alerted the trial judge to the ‘Bench notes’ on views, which indicate that there should be a summary provided of what took place.[3] The judge indicated that in her experience as a barrister and judge she had not done what is suggested in the Bench notes; expressed the view that ‘there is some danger attached to it’; and said that she could not see the point of doing so. In response, the prosecutor reminded the judge that, ‘A question was asked about boxes, [and] Your Honour indicated that they wait for the evidence as well’. When again her Honour said that she could not see the point of summarising what occurred, the prosecutor submitted that, ‘it’s something that, as I read [it can] assist an appellate court to know what took place at the view’, and said, ‘the only way that an appellate court could look at what took place on the view would be if it was placed on the record here‘. Somewhat grudgingly, it seems, the trial judge then said:
Well I’m sorry, but — all right, for the purposes of an appellate court if it ever went there. … Your Honours, we went out to the pharmacy to have a look at the inside — interior so that the — inside and the layout of the pharmacy was better understood and — I must say I actually think it’s — that is nonsense and that’s all I’m prepared to do, all right.
[3]Judicial College of Victoria, Victorian Criminal Charge Book, [2.1.1], 18 (‘Charge Book’).
Defence counsel did not demur from what the judge had said — either as to her Honour’s lament concerning the perceived pointlessness of the exercise, or as to the content of her summary of what occurred at the view — and sought no further directions. He neither asked the trial judge to supplement her summary of what had occurred at the view, nor sought any further directions to the jury as to the manner in which they should treat the view. The following exchange encapsulates defence counsel’s attitude:[4]
HER HONOUR: Yes but if I start talking about it, it becomes — the chances of me giving evidence about — or directing the jury about what they actually saw, it’s none of my business. It’s a matter for them what they saw on the view.
[DEFENCE COUNSE]: That’s right, the only time you’d interfere would be if you felt something had gone wrong or contrary to law and then ---
HER HONOUR: Nothing’s gone wrong ---
[DEFENCE COUNSE]: No we — I agree, nothing went wrong.
HER HONOUR: So my talking to the jury about what happened on a view, is in my view, as I said, I think it’s nonsense and I think it’s dangerous.
[DEFENCE COUNSE]: No I have nothing further to add Your Honour.
[4]Emphasis added.
With respect, her Honour’s experience as to what should occur following a view does not accord with my own, which is more in line with the second sentence of the ‘Bench Notes: Views’ to which reference was made. The Bench Note is in the following terms:[5]
Historically, one argument against using views as evidence was that there was no way for the results of the view to be transmitted to an appellate court. To overcome this problem, upon returning to court, judges should sum up (in the presence of the jury) what transpired, so that there is an accurate record of what occurred on the transcript (see, e.g., R v FD (2006) 160 A Crim R 392).[6]
[5]Charge Book, [2.1.1], 18.
[6]In my view it is doubtful that R v FD (2006) 160 A Crim R 392 is authority for the proposition for which it is cited.
I should pause to remark that her Honour gave no reason why she thought that there was some ‘danger’ attached to providing a summary. What the danger might be in providing a summary is somewhat baffling. Judges provide summaries daily in other contexts. Thus, by way of example, if a witness manually indicates height, width or length, the unvarying practice is for the judge — with the assistance of counsel — to translate that into words so that it might be recorded on the transcript. Similarly, if a witness provides a demonstration of a punch or blow or other physical action, the judge ensures that an adequate description is made for the purposes of the transcript. I am unable to guess what ‘danger’ her Honour had in mind, since, as I have said, she did not articulate it. But it seems to me that it should be within the capacity of a trial judge, with a helping hand from counsel, to provide an adequate summary of what occurred on a view without that exercise being accompanied by any particular danger. Ordinarily, the giving of an adequate summary would not be a very onerous exercise.
Counsel for the applicant submitted that the failure of the trial judge to provide a summary of what occurred at the view led to a miscarriage of justice because of a risk that the jury acted upon something that was not present. He submitted that, absent such a summary, some unknown extraneous material might be used by the jury. Counsel pointed out that the jury had, on one reading of the transcript, asked more than one question; and that, at the very least, the transcript showed that the jury had asked a question ‘about boxes’, the precise nature of which was not revealed by the submissions made by counsel or the judge’s remarks. A critical piece of evidence in the case concerned the visibility of the complainant to customers of the pharmacy or the medical centre while she was in a state of undress. She had said that she was in her underpants for at least ten minutes, and described a number of cardboard boxes stacked up in a way that allowed her to be unseen. Thus, so it was submitted, the size of the pharmacy and its layout were of great importance to the case. Without a summary by the judge it was impossible to know what the jury were capable of seeing. This Court was deprived of the opportunity of exercising its jurisdiction, because the Court was unable to assess what inferences
might have been open to the jury from their view of the premises.[7]
[7]To some extent this submission must assume, of course, that there was evidence available to show the position of any boxes present at the time of the view replicated their position at the time of the offending.
At common law, two types of view were contemplated. Thus a view could be something to help the court to better understand the evidence of witnesses (which was the more usual situation), or could, with the agreement of the parties, become part of the evidence. The distinction was adverted to in Neilan.[8] Having referred to authority, including Hunter[9] and Tameshwar,[10] the Court (Young CJ, Brooking and Marks JJ) said:[11]
The view in Hunter’s Case was of course a view at which evidence was taken. It is necessary to distinguish such a view from a view simpliciter. The latter is well understood. Such ‘a view . . . is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence’, but not ‘to put [the result of the] view in the place of evidence’: London General Omnibus Co Ltd v Lavell [1901] 1 Ch 135, at p 139 and Scott v Numurkah Corporation (1954) 91 CLR 300, at p 313.
[8]R v Neilan [1992] 1 VR 57 (‘Neilan’).
[9]R v Hunter [1985] 1 WLR 613; [1985] 2 All ER 173; (1985) 81 Cr App R 40.
[10]Tameshwar v R [1957] AC 476, 485–6.
[11]Neilan [1992] 1 VR 57, 77.
Views in criminal cases are now governed by ss 53 and 54 of the Evidence Act 2008.[12] Section 53, headed Views, permits a judge to order that ‘a demonstration, experiment or inspection be held’. Among other things, in deciding whether to order an inspection, s 53(3)(b) requires the judge to take into account ‘whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence’. Section 54 permits a jury to draw any reasonable inference from what is observed on a view. It provides:
[12]Section 45 of the Juries Act 2000 provides that if, during a civil trial, the judge considers it desirable for the jury to view a particular place or object, he or she may order a view and give any necessary directions for that purpose. Also in the civil context, rule 40.13 of the Supreme Court (General Civil Procedure) Rules 2005 provides that, ‘The Court may inspect, or, on a trial with a jury, may authorise the jury to inspect any place, process or thing’.
54 Views to be evidence
The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
The section permits a jury to draw inferences from what it sees, hears or notices during an inspection (or view). Thus, the inspection or view itself constitutes the evidence from which inferences may be drawn. In the same way that a jury might examine photographs or plans, or inspect an exhibit which is a piece of real evidence (such as a knife or other object), and draw inferences of fact, a jury is entitled to use what they saw, heard or noticed as evidence during an inspection or view, and draw inferences of fact. In this case, the jury, having viewed the pharmacy, would have been entitled to draw inferences from what they saw or noticed. Thus, by way of example, there being controversy at trial as to what customers within the pharmacy might have been capable of seeing of the rear area, the jury would have been capable of drawing their own conclusions about that aspect from the court-ordered view.
Where an inspection or view differs from other evidence, however, is that — unlike a photograph or a plan or a physical exhibit which are available to an appellate court to scrutinise — absent some record having been made of the inspection or view, the appellate court is deprived of knowing precisely what the jury observed (and the manner in which they observed it). In some cases — this not being one — the absence of a record may make it impossible to say, for example, whether a particular inference was properly open to the jury. In other cases, it might make it difficult to say whether the inspection or view was attended by any impropriety.
As I have said, counsel for the applicant submitted that, without a summary of the view by the judge, it was impossible to know what the jury were capable of seeing. In my view, however, this Court is able to make an adequate judgment about that from the tendered photographs, so that counsel’s submission on that aspect is not persuasive.
More troubling is the failure to record questions asked by the jury. Such record that does exist, however, indicates that a juror, or jurors, asked a question about boxes, and the judge told the jury to wait for the evidence. It would have been better if an adequate record had been made of the question or questions, and the judge’s response, but in the circumstances I cannot see that justice has miscarried. Indeed, I would not be prepared to infer any error or impropriety in the face of defence counsel’s asservation that ‘nothing went wrong’. Further, given counsel’s remark, I would not be prepared to act on the submission made in this Court that, absent such a summary, some unknown extraneous material might have been used by the jury.
As I earlier observed, the judge indicated that in her experience as a barrister and judge she had not done what is suggested in the Bench notes and provided a summary of the view. Her Honour’s experience, it must be said, does not accord with my experience. It is a common practice, in my experience, to record, in some fashion, what has occurred on a view. That has been achieved in a number of ways. Thus, there have been occasions in the past when a shorthand writer has accompanied the judge, jury, counsel, accused, court staff and selected others, and the judge has provided a narrative as the view unfolded which, when the trial resumed, was read into the trial transcript. On other occasions, when there has not been a contemporaneous shorthand or other note made, shortly following the view the judge has, in the courtroom, provided a summary — with the assistance of counsel — for the purposes of the transcript. There have been occasions, in my own experience, when evidence has been taken in the course of the view, so that a witness has been able to indicate salient features of a place or thing as part of his or her evidence in the course of the view. (There was, of course, a record made of the evidence as it was given.)
In my opinion, there should have been some record made of the view,
whether by a summary from the judge read into the transcript, or by other means.[13] The trial judge’s description that ‘we went out to the pharmacy to have a look at the … interior so that the … inside and the layout of the pharmacy was better understood’ was, with respect, inadequate. For the reasons discussed, however, its inadequacies have not led to a miscarriage of justice.
[13]Stephen Odgers SC cites Gillett v Murphy [2001] NSWCA 199, [155], as authority for the proposition that, ‘while a “view” is evidence, there is no obligation on the court to record the substance of what occurred’: Stephen Odgers, Uniform Evidence Law in Victoria, (2nd Ed.), 198 [1.2.5700]. Gillett’s case, however, was a civil case tried by a judge without a jury. In any event, in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 — to which the learned author also makes reference — Young JA observed ([114]–[116]):
However, I should make one comment on the fact finding exercise below. Under [s 54] of the Evidence Act 1995, what a judge sees on a view is evidence in the case. As I understand it, the practice I adopted in equity is now fairly standard and that is that, after the view, the judge hands down a draft note of his or her observations at the view, hears counsel before settling the final version and then records that note in the transcript or as an exhibit. In that way, everyone knows what facts the judge has taken in as a result of the view.
It would seem in the instant case that that process was commenced and a draft note produced, but then the process was abandoned. As a result it is understandable that a person against whom a finding of fact is stated in the reasons for judgment to have been derived from the view may justly consider that there has been unfairness.
In the instant case, there were some findings in this category. However, none of these went to the core of the decision and any problem here is no reason to disturb the decision. (Emphasis added.)
I should not leave this topic, however, without providing some guidance for future cases. Where a judge in a criminal trial is satisfied in accordance with s 53 of the Evidence Act 2008 that there ought be a view of a premises, place or thing, it may be desirable to swear a ‘shewer’ (or ‘shower’) to show the jury the place or thing to be inspected.[14] (Indeed, it has been this Court’s experience that it is a common, although not invariable, practice to swear or affirm a shower; and, in any event, jury keepers have always been sworn for the purpose of the view.) It will be necessary, of course, for the judge and jury to be present, and for the parties be given a reasonable
opportunity to be present;[15] and it will be desirable for the jury to be accompanied by a keeper or keepers. A record of what occurred should be kept. This may be achieved by arranging for a video to be made by an appropriate person (without, of course, identifying the jurors);[16] or by causing a shorthand note to be made, which is later read into the trial transcript; or by the judge making, or arranging for, some form of summary to be made, which is later read into the transcript. (This is particularly important, of course, if the view involves a witness giving evidence of some matter whilst the view is conducted.) At the very least, the judge, upon returning to court, should — with any necessary input from counsel — describe what occurred with moderate detail. The degree of detail will, of course, be dictated by the particular circumstances.
[14]A form of ‘Shewer’s Oath’ to be used in criminal cases is contained in the Supreme Court’s Manual for Judges’ Associates (2010), 4-52. It is in similar terms to that used in New South Wales: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, 668 [4-347] (Oaths and affirmations – view).
[15]The NSW Court of Criminal Appeal has held that it is ‘apparent’ from s 53(2)(a) of the Evidence Act 1995 that the accused has ‘a right to be present at the view’, although he or she may elect not to be present: Jamal v R (2012) 223 A Crim R 585, 591–2 [30]–[31] (Hidden J). I would not express the matter in such unqualified terms, since a trial may in some circumstances continue after the accused absconds, or where the accused has misconducted himself or herself (such as in R v Vernell [1953] VLR 590 and Eastman v R (1997) 76 FCR 9).
[16]See Juries Act 2000, s 77.
The judge’s summary must, of necessity, be confined to what took place — where the jury were taken, which places or things they inspected and from what vantage points. In contradistinction to the position in a trial by judge alone, it will not be necessary for the judge to include any of his or her own conclusions as to what was observable. (One reason for the judge’s reluctance in the present case was a proper concern not to be ‘directing the jury about what they actually saw’.) The summary should also include any questions of substance asked by jurors in the course of the view, together with the judge’s answers. Preferably, the procedure for dealing with such questions should be discussed with counsel before the view commences. And as with other questions asked by the jury in the course of the trial, it may be necessary to invite submissions from counsel before providing an answer.
There is much to be said for the guidance to be found in the New South Wales Bench Book:[17]
It is normal to nominate a person, often the Officer in Charge of the investigation, to be the shower for the purposes of indicating relevant aspects of the scene to the jury during the view in accordance with the evidence given in court.
A transcript should be made of the view. It is suggested that the police be asked to take a video recording of the view, if practicable, so that it can later be tendered in evidence. The recording should be made so as not to disclose members of the jury, but to record what is said by the shower and, if possible, any questions asked by the jury and the answers given by the shower.
The preferable course in relation to questions asked by the jury is for them to be put in writing and then vetted by the judge, in consultation with counsel if necessary, prior to being asked of the shower by the judge.
It is usual to swear the court attendants who accompany the jury to and from the view prior to departing from the court. This is to ensure that no person is allowed to communicate with the jury except at the view in the presence of the judge. It is also usual to swear the shower.
[17]Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, 667 [4-340] (Views and Demonstrations). (Emphasis added.)
Unless steps are taken to record what occurred during a view or inspection, an appellate court may be deprived of the opportunity of properly exercising the task of appellate review. Whether or not one accepts that the right to appellate review is a feature of the right to a fair trial itself,[18] nonetheless it is the duty of a trial judge to ensure that an adequate record is made of significant events so that this Court is capable of carrying out its functions and powers.
[18]Sinanovic v The Queen (1998) 154 ALR 702, 704 [7]–[8] (Kirby J).
For the reasons discussed, however, the first ground cannot be upheld.
Unsafe and unsatisfactory verdict: Conviction — ground 2
The evidence at trial
It is necessary to discuss the evidence in moderate detail.
PS provided her evidence during a special hearing[19] prior to the jury being empanelled. Her evidence was later played during the trial.
[19]See Criminal Procedure Act 2009, s 370.
From her second shift onwards, PS said, the applicant began measuring her legs and body. She thought that he was checking her weight distribution, so as to help her. Despite PS thinking that what the applicant was doing was not right, at the same time she was thinking, ‘he’s a professional, he’s got this job’, and she did not want to ‘jump to conclusions’ or ‘overreact’. In a small area at the back of the pharmacy the applicant had the complainant write down her measurements and weight on a notepad. Stacked boxes led into the small area, screening it from the rest of the shop.
PS’s fourth shift was on Wednesday, 18 April 2012. She commenced work at 4.00 pm. During that shift, at approximately 6.20 or 6.30 pm, the applicant suggested to PS that she weigh herself at the back of the store. The applicant told PS to first take off her stockings. She did so, and then wrote down her weight. The applicant picked up a measuring tape. He also gave her G-string underpants, which were purple with black lace. The applicant asked PS to put them on so he could measure her properly. The complainant put them on briefly over her underpants, but took them off again almost straight away. PS asked the applicant if she could take them home as a joke present for her brother. He told her she could not do so, but gave her $20 for her to buy her own G-string. PS put the $20 note down her top, in the space between her left breast and her bra, between her bra strap and the actual cup of the bra. In cross-examination she denied the suggestion that she had herself taken the $20 from the store’s float.
The applicant asked PS if it was alright to lift her skirt to measure her. She allowed him to do so. The applicant told PS that the measuring tape needed to go through her underpants, which he had pulled up at the back to make into ‘a G-string sort of thing’. He put the tape through her underpants at the back (charge 1). He then told her to put it through at the front. On a second occasion, however, when PS went to put the tape through the front of her underpants, the applicant himself put it through (charge 2). PS said she felt scared when the applicant was measuring her, but did not know what to do. The applicant also talked to PS about her stretch marks. She asked if they could be removed. The applicant then got a bottle of ‘Bio-oil, which he put on his hand before massaging her bottom (charge 8).
Following these events, the applicant offered to measure the complainant’s breasts. He suggested that there may be something wrong with their development. PS took off her bra at his request. He measured her, and then asked if it was alright to touch her breasts. PS said that it was. The applicant then touched her breasts and nipples, asking her if it felt good (charge 3). She said that it did. The applicant told her to turn around and close her eyes, and he would test it with his tongue. He then sucked, licked and kissed her left breast (charge 4). The applicant then did the same to her right breast (charge 5). Even though she was shocked and thought that she should do something, PS told him it felt good. The applicant pulled her hair back and kissed her neck (charge 6). As he did so, the applicant put his left hand inside the complainant’s underpants and moved his hand around her vagina (charge 7). PS stood with her eyes closed. She did not know what to do. When a customer came into the pharmacy, the applicant quickly ‘got off’ the complainant. He told her not to move while he went to serve the customer. PS said she was ‘tearing up a little bit’.
PS said that she put her clothes on and waited for her father to pick her up. The applicant told her not to tell anyone about what happened because they might take it the wrong way. He also told her that her ‘sexual something is ready’.
The complainant’s father picked her up and they went straight to a restaurant. Shortly after arriving at the restaurant, PS went to the bathroom and started crying. Her older sister and her cousin came into the bathroom and saw her crying. The complainant told them ‘some of it’. They encouraged her to tell her parents. When she got home she did so. The incidents were then reported to police. PS was examined by a doctor that night. She took part in a VARE[20] the following day.
[20]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367.
When cross-examined, it was put to PS that during her shift the pharmacy was very busy between 5.00 and 7.00pm. She disagreed saying that there were ‘only a few [customers] every now and then’. PS thought that five to ten people would have come in between 5.00pm and 6.00pm, fewer again between 6.00pm and 7.00pm. Counsel suggested that two customers, Isanoros Symeou and Selma Symeou, were present in the pharmacy from about 5.30pm until after the complainant left. PS said that she did not recall them, and denied they had been introduced to her. She maintained that there were no two people present in the pharmacy during that period.
PS gave evidence that the applicant served customers. She said that he used the cash register a few times between 6.00 and 7.00pm, prior to the indecent acts occurring. It was put to her that the applicant used the cash register at 6.22pm, 6.25pm, 6.33pm and 6.42pm. She disagreed.
The complainant estimated that she was in her underwear at the back of the store for ‘ten minutes, ten to 15 minutes, or ten to 20’. As a point of reference, the complainant was asked by trial counsel for the applicant if it was as long as morning recess at school was, she said, ‘Yeah. It was like ten to 20 minutes’. When a customer entered the shop, the applicant left PS alone for about four or five minutes so as to deal with them. No customers came into the store for about 15 minutes while the indecent acts were occurring.
By reference to photographs, Exhibit 1, PS identified the area in which she was standing as being behind the plastic bag depicted in the corner in photograph 14, in front of the vacuum cleaner. The applicant stood behind her while he was touching her. He would not have been obvious to anyone that came into the store, however, as there were boxes stacked against the white shelf shown on the left of photograph 12. The boxes were stacked to the sixth or seventh shelf, with another shorter stack coming out into the space between the two sets of shelves. They were always there. PS could not see into the front of the store, or the adjacent doctor’s surgery, from the position she was in during the incident.
PS was asked about the handwritten notes made on the notepad, Exhibit 2. The notes, she said, related to the measurements of her made by the applicant. Looking at photograph 32, she confirmed that the numbers written looked like her writing, but that the dates were written by the applicant. The writing in photograph 33 was her writing, apart from the calculations on the top right, which were made by the applicant. She denied that the notes were actually made when she assisted the applicant who measured a female customer of ‘New Zealand appearance’. PS also denied that the applicant had mentioned Bio-oil to the customer in that conversation. The complainant maintained that the recorded measurements related to her.
SS is the complainant’s older sister. She gave evidence that, prior to the alleged offending, PS told her about a conversation that she had with the applicant. The complainant had said to him that her legs were fat. He told her that her weight was fine, and that it would all go around to her bottom. The applicant then said something about measuring her legs.
On the evening that the alleged offending occurred, SS arrived at the restaurant around the same time as the complainant. PS was not at the table, so SS went to find her. She found her in the bathroom, visibly upset. PS had been crying, had red eyes, and was bent over the sink. At first she did not respond when SS asked her what was wrong. SS kept trying to get her to say what had happened. She asked PS, ‘What did he do?’. The complainant did not respond. SS persisted, and the complainant slowly told her what happened. She described the applicant asking her to remove her bra, touching her breasts, kissing her neck and breasts, and putting his hands down her skirt and feeling around. SS and PS were in the bathroom alone for about five minutes before their cousin, KS, also came in. KS also asked what was wrong, and PS eventually told her. The three stayed in the bathroom for about 10 minutes before they returned to their tables. Everyone went to the complainant’s house after the dinner, where SS and KS talked to the complainant about telling her mother. KS eventually called the complainant’s mother into the room and one of them told her. Police were then called.
KS, the complainant’s older cousin, also gave evidence. When she arrived at the restaurant, KS looked for the complainant. She was told she was in the bathroom. PS was not herself, crying and shaking. KS asked her what had happened. The complainant told her the man from her work ‘touched her’. He said he would measure her, touched her vagina, and licked and kissed her breasts. After they returned home, the complainant told her mother and police were called.
MS is the complainant’s mother. She gave evidence about the day that the applicant offered her daughter a job. MS was getting a prescription filled for her youngest daughter when the applicant asked her whether PS, who was with her, wanted work. MS said that she was only 14 years old. The applicant said that was ‘okay’, and he said that he could pay cash. On 18 April 2012, after dropping the complainant off at work, MS came back at about 5.10 pm to drop off some food. She did not look down the back of the store to see whether there were boxes there or not. Later that night, after a family dinner, KS told MS that something had happened to the complainant. MS and her husband accompanied PS to the Monash Medical Centre where she was examined.
Dr Maryanne Lobo, a forensic paediatrician, examined PS in the early hours of the morning of 19 April 2012. Swabs were taken from the areas of the complainant’s body where she said she had been touched and kissed by the applicant.
Bianca Laan is a Forensic Officer at the Victoria Police Forensic Services Centre. She gave evidence concerning the analysis of the samples taken from PS. The two swabs taken from the complainant’s left nipple gave a positive result for saliva. DNA analysis identified that the sample contained a mixture of DNA from at least two individuals. Assuming that the complainant’s DNA was present, the DNA profile of the second component was able to be determined. The results provided extremely strong scientific support for the proposition that the second component of the DNA mixture came from the applicant. The sample taken from the complainant’s left neck gave a positive result for saliva, but no further analysis was performed on it. No DNA profile was located on the swabs taken from the complainant’s right nipple. Only the complainant’s DNA was located on the profile obtained from her labia.
Ms Laan gave evidence that it was possible for DNA to be transferred by a person touching an object. The likelihood of transference, however, would depend on a number of factors, such as how long they touched the surface and the pressure they used. DNA does not always get transferred to a surface when it is touched. Saliva can also be transferred in both a primary (direct) or secondary (indirect) sense. In cross-examination she said it would be possible for the applicant’s DNA to be transferred to items he had touched, or spoken over, in the pharmacy. It would also be possible for a person to transfer DNA onto money that they handled; for example, by licking their finger to count it. If saliva was on the complainant’s hand and she touched her neck, it was possible that this would result in a transfer of saliva. So too, if the applicant’s DNA was on a $20 note, it could be transferred to the complainant by her putting it in her bra.
Joanne McDonald, the police informant, gave evidence concerning the investigation. She conducted the VARE with the complainant on 19 April 2012; and she was involved in the search of the pharmacy on 2 May 2012, during which photographs were taken and a number of items were seized, including a purple notepad (photos 29-33), two tape measures (photos 20-25) and an open bottle of Bio-oil (photos 26-28).
Van Lan Ha (also called ‘Jason’), the applicant, gave evidence in his defence. He denied that he had ever measured the complainant, given her $20 to buy a G-string, or touched her in any of the ways alleged. The measurements on the purple notepad, he said, were those of a female customer of ‘New Zealand appearance’ who had sought the applicant’s advice on weight loss following child birth. This had occurred during the complainant’s second shift on 14 April 2012. PS had seemed interested, so the applicant asked her to write down some of the measurements. The customer returned on two subsequent days to be weighed again, one being 17 April 2012. A weight measurement was recorded for that date, but that was not a day the complainant worked. The customer had also asked the applicant about getting rid of stretch marks. He had recommended Bio-oil. The applicant gave the customer a drop or two from his own bottle, which was kept where it was found by police. After the first occasion that the customer sought advice on her weight, PS said that she had the same problem with the weight in her thighs. The applicant brushed it off. He told her not to worry, that her weight would even up. That did not lead to the applicant measuring or weighing the complainant, because he did not take PS’s comment seriously.
The applicant explained the process of filling a prescription, which took between three and five minutes to complete. The dispensary computer, he said, was linked to Medicare to allow for the payment of subsidies. He also explained the various records kept in the pharmacy for all transactions, including the filling of prescriptions. The records included the cash register tape, EFTPOS receipts, dispensing records and copies of prescriptions. The applicant learned of the allegations on 1 June 2012. At that point he assembled all the records in relation to 18 April 2012 to figure out what had happened on that day. The cash register tape recorded transactions, between 6.00pm and 7.00pm, at 6.05pm, 6.12pm, 6.25pm, 6.33pm, 6.42pm and 6.52pm. The dispensing records showed that the applicant had filled nine prescriptions for a regular customer, Mr Symeou, whom he had known since 2003 or 2004. He would come into the pharmacy around once a month. The applicant recalled that Mr Symeou and his wife had come in around 5.30pm on 18 April 2012. He had bought a coffee for the applicant and they chatted. They remained in the pharmacy, without leaving, until about 7.15pm. The applicant introduced the Symeous to PS. Mr Symeou gave the applicant prescriptions to fill around 6.00pm. When other customers came into the store, Mr Symou told the applicant to serve them while he waited. Medicare records indicated the prescriptions for Mr Symeou were dispensed over the course of an hour. They were not, however, linked to payment records, so did not indicate when actual payment was made. The time of transactions from the Medicare records showed when the applicant had put transactions through on his dispensing computer. The customer did not have to be present, however, for that to take place.
The applicant recalled going into the back area of the store at around 6.45pm to tell PS to pack up. He saw her put a $20 note into the space under her shirt on the left side of her chest, but he did not say anything to her. At the end of the day, he found that $20 was missing from the store’s change bag. He said that no boxes were stacked against the shelves where PS had indicated, and that any boxes stacked in that position would prevent access to the stock on the shelves.
As to possible explanations for the presence of his DNA on the complainant’s nipple, the applicant said that it was his practice to lick his fingers when counting money in the store. He also noted that he suffered from hay fever, which caused him to sneeze and get a runny nose.
The applicant agreed that he had no reason to remember what happened on 18 April 2012 until June, when the police spoke to him. He did not speak to Mr Symeou about the day until August 2012, when he came into the pharmacy. The applicant told Mr Symeou that he had been charged with assaulting the complainant. Since the records showed that Mr Symeou had been there that day, the applicant asked if he would be his witness. He agreed. Mr Symeou told the applicant that he remembered being introduced to the complainant. The applicant said his solicitor would be in contact.
Times recorded on the cash register tape, the applicant said, did not directly correlate to the EFTPOS transactions, since the two could be put through separately. They could only provide an approximate indication to within a few minutes of when customers were there. The applicant denied he had come up with an explanation of what took place on 18 April 2012 to fit with the entries on his records. He could remember a day when the Symeous were in the pharmacy for over an hour, but just did not know which particular day it was without his records.
The applicant agreed that he had not contacted PS after 18 April 2012, even when she did not turn up for work the next Saturday on her next shift. He said that was because he did not expect her to come back, even though nothing had been said between them that had led him to believe she was not coming back. The applicant said that he thought that the complainant would not come back because of the $20 that went missing on 18 April 2012.
Isanoros Symeou gave evidence in the defence case. He had been seriously injured in a car accident in 2001, and had been treated with medication ever since. Mr Symeou first met the applicant when he would regularly visit his pharmacy following his accident. The applicant was, he said, his friend as well as pharmacist. He said that in August 2012 the applicant asked him if he would be a witness, because the girl that had been working in the pharmacy had accused him of assault. When cross-examined, he said that the day he recalled seeing the girl was in August 2012, and that the applicant had asked him about it a couple of months after that. Later, his evidence reverted to being that the applicant had asked him to be a witness in August, and that he had seen the girl working there before that. He agreed that there was nothing important to him about that visit, as against his other monthly visits, that would have caused him to remember the date, although he thought that day was probably his longest visit to the pharmacy.
Mr Symeou’s evidence was that he had only seen a girl working at the pharmacy once. He had gone there with his wife, stopping at McDonald’s on the way to get some coffees. They arrived between 5.00pm and 5.30pm, and stayed there until closing. Mr Symeou did not see the applicant touch the girl working there. They spoke about a car parked near the pharmacy that the applicant had asked Mr Symeou to check out for him. Mr Symeou thought he may have had four or five prescriptions to be filled on that day, but he was certain that he did not have nine. Mr Symeou said that the view that he had from the chair he sat in was that shown in photograph 9. He maintained that from that position he could see the girl sorting papers on the floor at the back of the store from that position. Mr Symeou agreed that he was on medication to treat depression. That medication had led to psychosis in 2000, but it did not affect his memory.
Selma Symeou also gave evidence. She supported her husband’s evidence. Mrs Symeou said that in August 2012 the applicant asked her about a particular date in April 2012; told her she was in the pharmacy on that day; and said that his solicitor may have to contact her about giving evidence regarding an assault charge. The applicant did not give her any details. She did not have an independent memory of being there on that particular date before the date was given to her. Mrs Symeou’s evidence regarding the events of on 18 April 2012 did not much differ from that of her husband. She too recalled being introduced to a girl working there, and did not see the applicant touch the girl. Mrs Symeou did not discuss with her husband in any detail what had happened on that day until after the applicant asked whether they would give evidence. She said she was seated in the position from which photograph 9 was taken, and was cross-examined about whether she could see the back of the store from there. Mrs Symeou maintained that she saw the girl at the back of the store with papers on the ground around her. She denied that her evidence had changed to fit in with her husband’s.
The submissions
Counsel for the applicant placed substantial reliance on the evidence of the cash register tape, which showed transactions at 6.05pm, 6.12pm, 6.25pm, 6.33pm, 6.42pm and 6.52pm. He reminded the Court that PS had given evidence that she was in an undressed state at the back of the store for ‘ten minutes, ten to 15 minutes, or ten to 20’, and that to dispense a prescription took three to five minutes. Counsel submitted ‘it’s the chronology that’s the killer’. There was, so counsel submitted, an inherent unlikelihood of the events that PS described having occurred over the period of time that she asserted.
Counsel referred to the fact that the complainant had described a number of cardboard boxes stacked up in a way that allowed her to be unseen (a matter that the defence disputed). If the events had occurred in the way the complainant alleged, so it was submitted, those events would have been seen and visible to anyone within the pharmacy. But no other witness saw stacked boxes on the relevant day.
There was an explanation for the applicant’s DNA being found on the swab from PS’s left nipple, that being transference from the $20 note.
Furthermore, so counsel argued, the evidence of Isanorus and Selma Symeou was an insurmountable obstacle in the way of conviction. Their evidence, and that of the applicant, supported the contention that they were present in the pharmacy, without interruption, between 5.00pm or 5.30pm and 7.00pm or 7.15pm. Thus there simply was no opportunity for the applicant to have committed the acts against PS that she alleged. The Symeous spoke of a girl sitting in the back of the store sorting papers. In order to convict the applicant, counsel contended, the jury would have needed to reject the sworn evidence both of the applicant and the Symeous, while at the same time accepting that PS was wrong about the length of time over which the offending occurred (including the length of time she was in a state of undress), and the presence of the Symeous in the pharmacy.
To convict, so it was said, the jury would have needed to ignore significant aspects of the evidence, including the ‘unchallenged documents’ in the form of the cash register receipts and other documentary evidence.
The respondent’s counsel submitted that PS’s version was ‘inherently plausible’, and was supported by independent evidence. Counsel relied on the fact that PS was observed to be distressed shortly after the events in the pharmacy, and made prompt complaint. Further, scientific evidence showed the applicant’s DNA present on a swab taken from the complainant’s left nipple, and the swab from her neck gave a positive result for the presence of human saliva. Additionally, the police found an open bottle of Bio-oil, which was consistent with PS’s account of the applicant having applied it. Police also found a purple notepad, with various measurements relating to the complainant (the applicant having denied that he measured her). The acts that PS endured could have, it was submitted, taken place over a shorter period than she estimated, without the overall credibility of her account being affected. Thus, so it was argued, the cash register receipts were not inconsistent with the applicant having had the opportunity to perform the acts alleged. It was open to the jury to reject the evidence that the Symeous were present throughout, and to conclude that the version given by the Symeous was an inaccurate reconstruction arrived at by unreliable witnesses.
The verdicts are not unsafe and unsatisfactory
To a significant extent the prosecution case turned on the credibility and reliability of the complainant’s account. Putting to one side the evidence said to support PS’s account, and that said to support the contradictory version of the applicant, very much the present was a case of oath against oath. Quintessentially, the assessment of credibility and reliability in such cases is the province of the jury.
Faced with a contention that verdicts are unsafe and unsatisfactory, the appellate court must ask whether it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.[21] In assessing whether it was open to the jury to be satisfied of guilt, the Court is required to carry out its own independent assessment of the evidence. Furthermore, in determining whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, the real question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[22] It is not enough for the applicant to show that there was material which might have led the jury to fail of satisfaction of guilt beyond reasonable doubt.[23]
[21]M v The Queen (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).
[22]Ibid 492-3; Libke v The Queen (2007) 230 CLR 559, 596-7 [113] (Hayne J).
[23]See also Klamo v The Queen (2008) 18 VR 644, 653-4 [38]–[40] (Maxwell P); Greensill v The Queen (2012) 37 VR 257, 226-7 [82]-[83] (Redlich, Osborn, Priest JJA).
In my view, there is nothing inherently implausible in the complainant’s account. She described a surreptitious set of events which, to my mind, were attended by an atmosphere of verisimilitude. Accepting the cash register receipt times to be accurate, it may be that the complainant’s estimate of the time over which the critical events occurred was awry. In my assessment, however, her failure to estimate time with accuracy does not impinge upon the fundamental credibility of PS’s account.
There is evidence which, in my view, the jury were capable of acting upon, and which supported the complainant’s account. That evidence includes her distressed state shortly after the events. Next, she made a timely complaint, which, even if used as merely going to her credibility, bolsters the believability of her version of events. Additionally, there is the scientific evidence. It would have been open to the jury to conclude that the sample taken from PS’s neck supported her evidence that the applicant had kissed and licked her on the neck. So, too, could the jury have used the evidence of the swab taken from PS’s left nipple as lending very strong support to the conclusion that the applicant had applied his mouth to that area, consistently with her evidence. The jury would have been well justified in rejecting the suggestion of possible transference from the $20 note, given that PS’s description of where she had put the note would not have been likely to have effected a transference of DNA to her nipple. There was also strong support for the complainant’s evidence, in my view, flowing from the finding of the open bottle of Bio-oil, and of the notepad with her measurements apparently recorded.
So far as the Symeous’ evidence was concerned, it was a matter for the jury what assessment they made of its reliability. It is enough to say, I think, that there was no aspect of their evidence which compelled the conclusion that they were present in the pharmacy throughout the time when the offences must have occurred, thus rendering it unlikely that the offending had taken place in the manner described. Indeed, the same might be said of the applicant’s sworn evidence. Its credibility and reliability were for the jury to assess. It was open to the jury to reject its critical aspects. It did not compel verdicts of acquittal.
For these reasons, the contention that the verdicts are unsafe and unsatisfactory cannot be upheld.
The application for leave to appeal sentence
The applicant was sentenced according to the following table:
Charge Offence Sentence Cumulation 1 Indecent act with a child under the age of 16[24] 8 months 4 months 2 Indecent act with a child under the age of 16 8 months 4 months 3 Indecent act with a child under the age of 16 8 months 4 months 4 Indecent act with a child under the age of 16 12 months 6 months 5 Indecent act with a child under the age of 16 12 months 6 months 6 Indecent act with a child under the age of 16 12 months 6 months 7 Indecent act with a child under the age of 16 14 months Base 8 Indecent act with a child under the age of 16 8 months 4 months Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years
[24]Crimes Act 1958, s 47(1). The maximum sentence available is 10 years’ imprisonment.
From the third charge onward, the judge should have sentenced the applicant as a serious sexual offender,[25] and should have caused to be entered in the records of the court that the applicant was sentenced as such.[26] She failed to do so, despite having been informed by counsel that she was required to sentence the applicant accordingly. No mention was made of the applicant’s status as a serious sexual offender in the judge’s sentencing reasons or in the formal orders of the court. That failure is a matter to which I will return.
[25]Sentencing Act 1991, s 6B.
[26]Sentencing Act 1991, s 6F.
The merits of the application for leave to appeal
As earlier observed, there were three grounds of appeal against sentence.[27] In essence, grounds 1 and 2 asserted manifest excess in the individual sentences, orders for cumulation, total effective sentence and non-parole period. Complaint was made that the principle of totality had been infringed. These contentions cannot, however, be upheld.
[27]Above, [3].
The individual sentences were, in my opinion, well within the available range. In that context, it is to be remembered that the maximum penalty for each offence of which the jury convicted the applicant was 10 years’ imprisonment. Moreover, there were several very significant factors which bore upon the sentences to be imposed. First, and very significantly, there were disturbing similarities between the present offending and his prior offences. The applicant had prior findings of guilt for indecently assaulting two young women, one 14 years of age and the other 20, both of whom had applied for jobs in his pharmacy. More modest sanctions, of the kind imposed in those cases, had failed to deter the applicant from repeat offending. Thus, although he was not to be again punished for his prior misconduct, the prior offending (and the failure of more modest sentencing sanctions) bore directly on issues of leniency, the need for specific deterrence, recognition of his dangerous propensities and the necessity to protect the community from him. In my opinion, significant sentences of imprisonment were required to mark the court’s denunciation of the applicant’s conduct and to punish him for his predatory behaviour.
Next, there was little that mitigated the offending. The applicant was much older than the 14 year old victim. She was his employee, thus the offending involved both a power imbalance and a breach of trust. The offending was dressed-up as a quasi-medical assessment, so as to make the young victim pliable and amenable. Despite submissions which suggested the contrary, the offending had a marked impact on the victim and her family. Further, the applicant seemed to have been untroubled by remorse, and was unafflicted by any psychological or psychiatric factors which might have moderated the sentences to be imposed. He could not call in aid youth or prior good character.
As to any suggestion that insufficient weight was given to the impact of his imprisonment on the applicant and his family, the impact on the applicant’s family was largely irrelevant, since it could not be established that any hardship to the applicant’s family was exceptional. And as to the effect on the applicant’s professional circumstances, he faced professional consequences when he last offended[28] — and must have been aware of the likely consequences if he again offended — yet he chose to put his profession in jeopardy by reoffending in a very similar manner.
[28]Van Lan Ha v Pharmacy Board of Victoria [2002] VSC 322 (Gillard J).
With regard to the orders for cumulation, even were it to be considered arguable that the orders for cumulation are excessive, nonetheless I do not consider that any different total effective sentence would be appropriate. Minds might legitimately differ, and some might regard the head sentence as stern — and doubtless that would be a legitimate view were it not for the applicant’s prior offending — but in the particular circumstances of this case, a total effective sentence in the order of four years’ imprisonment is well within the range of those open in the proper exercise of the sentencing discretion.
Additionally, the non-parole period cannot legitimately be criticised. In my opinion it is lenient. It provides an opportunity for the substantial mitigation of the applicant’s punishment, provides the possibility of an extended period of supervised release and affords an incentive for supervised rehabilitation.
Finally, I should observe that the applicant contended that the sentencing judge mis-stated the sentence imposed upon the applicant for his prior offending, in that, although she correctly stated the dispositions imposed, she failed to state that the dispositions were imposed without conviction. To my mind, the failure to do so does not much matter. The judge correctly focussed upon the fact that the applicant had engaged in relevant conduct in the past, and had neither been deterred nor rehabilitated by the sentences imposed upon him. In any event, the fact that the prior matter in 2001 was dealt with without conviction was discussed on the plea. That fact could not have escaped the judge’s attention.
I would not uphold any of the grounds of appeal relating to sentence.
Failure to record the applicant’s status as a serious sexual offender
Returning to the applicant’s status as a serious sexual offender, the sentencing judge should, as I have said, have ordered that the applicant be sentenced as such, but failed to do so. On the hearing of the sentence application in this Court, supplementary written submissions were sought from the parties addressing the question whether the Court had jurisdiction to intervene to correct the record if the application for leave, or the appeal, is otherwise dismissed. Although supplementary submissions were filed by the respondent, none were forthcoming from the applicant, counsel for the applicant indicating that he did not wish to controvert any of the propositions contained in the respondent’s further submissions.
The respondent submitted that the County Court was bound to apply the serious offender provisions in Part 2A of the Sentencing Act 1991 (‘the Act’); and thus, by virtue of s 6F(1) of the Act, it was mandatory for the judge to cause to be recorded in the records of the court the fact that the applicant was sentenced as a serious sexual offender in relation to charges 3 to 8 inclusive. Plainly, that submission is correct.
Counsel for the respondent submitted that there were two possibilities for the judge’s failure. First, it might have been, in effect, a simple slip constituted by neglecting to ensure that the appropriate entry was made. Secondly, it might indicate a wholesale failure to apply Part 2A of the Act. No matter whether the failure was the result of the first or second possibility, however, the record could not be corrected unless the application for leave to appeal is granted and the appeal allowed. If the County Court intended to sentence the applicant as a serious sexual offender, but failed to record that fact, this Court does not have jurisdiction to correct the record unless sentencing the applicant afresh.
In a helpful submission, the respondent identified the several possible sources of jurisdiction to correct the record, but contended that none of those potential sources of jurisdiction could, in the circumstances of this case, be invoked.
As to the first of the potential sources of jurisdiction, the respondent argued that s 104 of the Act confers power on the Supreme Court only if it was the sentencing court, or on an application for certiorari. Section 104 has no application to this Court’s jurisdiction on an appeal under s 278 of the Criminal Procedure Act2009 (‘CPA’). In my view, given the plain wording of s 104(1), this submission is undoubtedly correct.
Next, it was argued that s 104A of the Act does not provide jurisdiction to correct the relevant error, both because the power in s 104A is exercisable only within 14 days, and because s 104A does not extend a power to this Court to correct the record of an inferior Court.[29] Again, given the unambiguous terms in which s 104A is couched, in my opinion this submission is correct.
[29]The respondent pointed out that the legislature has not acted upon the suggestion by Winneke P made in R v Ahomana [2001] VSCA 155, [84]–[85], that the powers reposing in s104A be extended to this Court.
Turning to the CPA, the respondent submitted that s 412 is, on its face, a broad power, the limits of which have not been determined by this Court.[30] Section 412 provides that, ‘For the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order’. The necessary implication from the statutory language, it was submitted, is that the power reposing in s 412 is given only to the Court that generated the summons, warrant, plea, judgment or order. That must be so, the respondent submitted, for three reasons. First, were the power not so restricted, any court could correct any other court’s orders (which is an unlikely intendment). Secondly, the power may only be exercised ‘for the purpose of correcting any defect or error in substance or in form’. In the absence of any process for appeal or review, the language strongly suggests that only the court that exercised the original jurisdiction would ‘have the knowledge of the case to determine that there was such a defect or error’. Thirdly, by reason of its language, heading, and place within a statute that establishes a detailed and distinct scheme for appellate review, s 412 plainly is not directed to any supervisory or appellate review. Rather, the purpose of s 412 is to permit the correction of a slip by the court that originally exercised jurisdiction. Section 412 does not grant power to the Court of Appeal to alter the record of an inferior court. In my view, the respondent’s submissions as to these matters must be accepted.
[30]DPP v Edwards [2012] VSCA 293, [99]–[110] (Warren CJ), [149] (Weinberg JA and Williams AJA).
Going next to s 325 of the CPA, the respondent submitted that, although s 325 gives this Court the power on appeal to alter an ‘ancillary order’ made by a sentencing court, the failure to cause the record to be made pursuant to s 6F of the Act does not constitute an order made by the sentencing court. Hence, s 325 does not permit correction of the record. Again, this submission is, in my view, correct.
Given these matters, the respondent submitted that the limits of any power possessed by this Court to intervene in the County Court’s failure to record the applicant’s status as a serious sexual offender must fall to be determined within the ambit of the jurisdiction conferred by Division 2 of Part 6.3 of the CPA. Putting s 280(3) of the CPA to one side,[31] this Court relevantly has no power to intervene with respect to a sentence or order imposed by an originating court unless leave to appeal is granted. Once leave to appeal is granted, unless the appeal is abandoned, this Court has available only two options on an appeal against sentence.
[31]Or, it should also be noted, the animation of the Court’s powers under s 289 on an appeal against sentence by the Director.
The respondent submitted that, by virtue of s 281(1) of the CPA, this Court’s jurisdiction is enlivened only if ‘the appellant satisfies the court that … there is an error in the sentence first imposed [and] a different sentence should be imposed’. In any other case, this Court must dismiss the appeal. Absent satisfaction of an error in the sentence first imposed, therefore, and satisfaction that a different sentence should be imposed, the Court is powerless to correct a sentence or order. Dismissing an appeal does not carry with it any additional power to amend or vary the orders of the County Court.
Moreover, so the respondent submitted, an entry in the records of a Court pursuant to s 6F is not a sentence.[32] It is merely a record that the Court is required to make. Nothing in the inclusive definition of ‘sentence’ in s 3 of the CPA suggests that the mandatory recording of a particular fact is a sentence. An appeal may be allowed under s 281(1) only if ‘a different sentence should be imposed’. For this Court to impose the same term of imprisonment as did the County Court would not be to impose a ‘different sentence’,[33] so that the precondition for appellate intervention — which would otherwise allow correction of the record under s 6F — would be absent. Moreover, the respondent submitted that this Court has previously determined that it would not be appropriate to alter the record of the County Court in a situation in which an offender was not sentenced as a serious sexual offender.[34]
[32]For this reason, making such an entry into the records does not attract the requirement to warn pursuant to s 281(3) of the CPA. It need not be considered whether there is any additional common law requirement to warn on the hearing of an appeal under s 281, or whether it would cover the entry into the records of a statement in accordance with s 6F of the Sentencing Act 1991.
[33] R v Saxon [1998] 1 VR 503, 509 (Tadgell and Phillips JJA, and Southwell AJA).
[34]E D v The Queen (2011) 216 A Crim R 404, 420 [109] (Robson AJA).
In short, the respondent submitted that, unless the Court were to allow the appeal and impose a different sentence, it must be accepted that the Court cannot correct the failure of the sentencing judge to comply with s 6F of the Act.
As I have said, none of the respondent’s submissions were controverted by the applicant. In my view they must be accepted. In the circumstances of this case, the Court has no power to correct the record so as to reflect the applicant’s status as a serious sexual offender.
Conclusion
Both the application for leave to appeal against conviction, and the application for leave to appeal against sentence, must be refused.
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