Jai Vatan Singh v The Queen
[2013] VSCA 300
•20 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0054
| JAI VATAN SINGH | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | MAXWELL P, COGHLAN JA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 August 2013 |
| DATE OF JUDGMENT | 20 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 300 |
| JUDGMENT APPEALED FROM | DPP v Singh (Unreported, County Court of Victoria, 31 August 2012, Judge Pullen) |
CRIMINAL LAW – Appeal – Conviction – Aggravated burglary – Indecent assault - Entry to house as trespasser – Entry to bedroom with intent to commit indecent assault – Whether capable of constituting burglary – Whether decision in R v Chimirri [2010] VSCA 57 should be overruled – Whether Zoneff warning required – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Sentencing principles – Specific deterrence – Earlier sexual offence charge discontinued – Whether relevant to specific deterrence – Crown concession – No different sentence – Sex offender registration and reporting – Whether discontinued charge relevant to risk assessment – Order imposing reporting requirements set aside – Sex Offenders Registration Act 2004 (Vic) ss 8(2)–(3), 11, Criminal Procedure Act 2009 (Vic) s 281, Sentencing Act 1991 (Vic) s 6B.
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
COGHLAN JA
DIXON AJA:
After a trial the applicant was convicted of one count of aggravated burglary and three counts of indecent assault. He was sentenced to three years and 10 months’ imprisonment, and a non-parole period of two years was fixed. The sentencing judge ordered that he be registered as a sex offender, with an eight year reporting period, under the Sex Offenders Registration Act 2004 (Vic).
He now seeks leave to appeal against conviction and sentence. For reasons which follow, we would grant leave to appeal against conviction but would dismiss the appeal. We allow the appeal against sentence to the extent necessary to set aside the sex offender registration order.
A.CONVICTION APPEAL
The conviction for aggravated burglary
The essential facts can be briefly summarised. At five o’clock in the morning, the applicant entered a house occupied by the victim (S) and her husband and baby. He entered the house as a trespasser. He did not know S or her husband, and had no permission to enter their house. Once inside, he went up the stairs and entered the bedroom where S was asleep in a bed with her baby. He kissed her on the lips (charge 2) and then — after an interruption when S’s husband woke up — kissed her five or six times on the cheek, forehead and arm (charge 3) and then touched her on the lower back (charge 4).
The issue raised by the first ground of appeal concerns the time at which the applicant was said to have formed the intent to commit indecent assault. It is contended that the trial judge erred:
in allowing the Crown to put its case on the charge of aggravated burglary on the basis of the applicant’s entry into the bedroom and not on the basis of the applicant’s initial entry as a trespasser on the premises.
The offence of burglary is established by s 76(1) of the Crimes Act 1958 (Vic) which (so far as relevant) provides that:
A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent —
…
(b) to commit an offence —
(i)involving an assault to a person in the building or part in question; …
Under s 77(1), a person is guilty of aggravated burglary if he or she commits a burglary and
…
(b)at the time of entering the building or the part of the building a person was then present in the building or part of the building and [the offender] knew that a person was then so present or was reckless as to whether or not a person was then so present.
The submission for the applicant was that, having entered the house as a trespasser, he could only have committed burglary (and hence aggravated burglary) if he had the necessary intent — in this case, to commit an indecent assault — at the time of entering the house. According to the submission, the word ‘enters’ in 76(1) is confined to the initial trespassory entry. The subsequent formation of the intent to assault, before entry to the bedroom, could not suffice, since the trespassory entry and the formation of the intent had to coincide.
In our view, this ground must be rejected. This question was decided, quite recently, by the Court of Appeal in R v Chimirri.[1] We would follow that decision unless persuaded that it was plainly wrong.[2] For reasons which follow, we are not so persuaded.
The decision in Chimirri
[1][2010] VSCA 57 (‘Chimirri’).
[2]R v BDX (2009) 24 VR 288, 309-10, 314 (‘BDX’).
In Chimirri, the Court was dealing with an application for leave to appeal from convictions for aggravated burglary. The facts may be stated shortly. The applicant (C) and his ex-girlfriend had had an altercation about keys which she was refusing to return to him. The girlfriend was taken back to her home by her uncle who, it appears, wanted her to retrieve and return the keys. C followed them and entered the house and, subsequently, the girl’s bedroom.
The first ground of appeal was as follows:
The verdict on count 1 (aggravated burglary) is unreasonable and unable to be supported by the evidence; in particular there was insufficient evidence to establish: (a) that the applicant was a trespasser in the part of the premises at 4 Andes Court (the bedroom) pleaded in the count; and (b) the required state of mind on the part of the applicant at the time of entering the bedroom.
As the Court explained in its reasons,[3] the question raised by this ground was whether there was sufficient evidence to sustain a conviction for aggravated burglary. C could only have been convicted of that offence, the Court said, if the Crown proved beyond reasonable doubt that he entered the bedroom knowing that he did not have permission to do so, or was reckless as to whether he had such permission, with an intent to assault a person therein.
[3]Chimirri [2010] VSCA 57, [11].
There had been two previous trials on the charges of aggravated burglary, which did not proceed to verdict. On both those occasions, the Crown’s case had been that C was guilty of aggravated burglary because he had entered the house as a trespasser, with the relevant intent. The presentment in the third trial — in which he was convicted — charged C with entry into the bedroom as a trespasser, with the relevant intent. On the appeal, the Court commented that the change had presumably been made
because of the difficulty which the Crown might have encountered in establishing beyond reasonable doubt that [C] had an intention to assault someone on the premises, at the time at which he was said to have entered the house as a trespasser.[4]
[4]Ibid [12].
At the hearing of the appeal, counsel for C submitted that even if he had entered the house knowing that he did not have permission to do so, or was reckless as to the lack of permission, this evidence could not be relied on to show that he entered the bedroom as a trespasser. The act of trespass to the house was said to be an uncharged act. Counsel submitted that the Crown had conflated two separate acts of trespass: the alleged trespassory entry into the house and the alleged trespassory entry into the bedroom. It was not sufficient for the Crown to prove beyond reasonable doubt that C intentionally trespassed when he entered the house, and that by the time he entered the bedroom he had formed the intention to assault a person there. (That is, of course, precisely the submission made in the present appeal.)
Counsel for the Crown submitted that C’s trespassory act when he entered the house continued when he went into the bedroom. There was sufficient evidence to permit the jury to conclude that, when C went into the bedroom, he had an intention to assault a person there. The intention to assault could be inferred from the uncle’s evidence that C had drawn his gun while in the bedroom, had told the uncle not to ‘touch her’ or to ‘leave her alone’, and from his subsequent conduct in pointing the gun at the uncle when he had been forced back into the hallway and saying to him: ‘I’m going to blow your fucking head off’.
The Court rejected the ground of appeal, saying:
Because the [girl’s parents] had an exclusive right to possession of their home, they had the power to exclude people from entering the house or any part of it. If [C] did not have permission to enter the house, or had permission to do so only when [the parents] authorised a specific visit, he entered the house as a trespasser on 22 November 2003. There was no evidence that he was invited to visit on that occasion.
If different persons are in exclusive possession of parts of a building, one person may license entry into the part of the building of which they are in possession. This does not confer a licence to enter a different part of the building which is in another person’s exclusive possession.[5]
That principle is not relevant here. [The parents] were in possession of the whole of their house. The bedroom used by [the daughter] and her sister was not separate from the rest of the house. [The daughter] was not a tenant and had no right to exclude her parents from the bedroom. [C] entered the bedroom by coming in the front door of the … house and walking down the hallway into the bedroom. He was a trespasser when he did so. It follows that if there was sufficient evidence to permit the jury to conclude that [C’s] entry into the house was trespassory, he was still a trespasser when he entered the bedroom.[6]
[5]The court here cited R v Walkington [1979] 1 WLR 1169, discussed later in these reasons: see [18].
[6]Chimirri [2010] VSCA 57, [30]–[32] (emphasis added, citations omitted).
The proposition advanced in the present case was thus squarely addressed in Chimirri, and rejected. The decision established that the offence of burglary is committed when —
(a) a person enters a house as a trespasser; and
(b)while in the house, the person enters one of the rooms with the intent to commit an offence in that room.
The Court’s path of reasoning is clear. Once it is understood that trespass is not a finite act, complete at the point of entry into the building, but is a continuing state, the language of s 76(1) is capable of applying to a person who enters a building as a trespasser and who, at the time of entering a particular part of the building, has the intention of committing a particular offence in that part of the building. There is no difficulty here about contemporaneity. The entry into the relevant part of the building is entry as a trespasser and that act is accompanied by the relevant intent.
In a detailed and helpful supplementary submission, Mr McLoughlin for the applicant contended that the decision in Chimirri was ‘clearly wrong’ and should be overruled. He submitted that the phrase ‘part of a building’:
should be interpreted as meaning either an outbuilding sufficiently connected to a main building (which was the meaning of the term at common law) or a part which has been demarcated as separate from the rest of the building by a physical or other division. That division may be implied. In either case the essential character of the division must be to give notice that a separate permission over and above that necessary to enter the building generally is required.
According to the submission, the bedroom in Chimirri — like the bedroom in the present case — did not qualify as a ‘part of a building’ for the purposes of the provision. Reliance was placed on the following lengthy passage from the decision of the English Court of Appeal in R v Walkington:[7]
[7][1979] 1 WLR 1169 (‘Walkington’).
The first ground of appeal — and indeed before an amendment to the notice of appeal was allowed the only ground of appeal — was on the basis that the judge was wrong in refusing to withdraw the matter from the jury. The way it is put in the notice of appeal is:
It would be wrong to divide the store artificially into ‘parts’ in the way that would be necessary to make a case of burglary out of the situation presented by the prosecution. That being so, the defendant could not be said to have trespassed behind the counter and the count of burglary must fail.
As Mr. Osborne put it before us this morning, what he submits is that the counter area could not have constituted a part of the building for the purposes of burglary.
It is perhaps advisable in the first instance to see what it is that section 9 of the Theft Act 1968 provides. It reads:
(1) A person is guilty of burglary if — (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below;… (2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question…
What the prosecution had to prove here was that the defendant had entered a part of a building as a trespasser with intent to steal anything in that part of the building. Mr Osborne submitted that this could not be said to be a part of a building. It was a submission which we confess we found a little difficult to follow. But it transpired that what Mr. Osborne was principally relying upon was a passage in a publication by Professor Griew entitled The Theft Acts 1968 and 1978, 3rd ed (1978). He made particular reference to paragraph 4-16 at p 68, which reads:
D has the licence that all customers have in a shop to move from counter to counter. He has lawfully entered the shop and bought something at counter one. He now moves to counter two, intending to steal at it. If in doing so he is entering a different ‘part’ of the shop, he may be guilty of burglary, for entry for a purpose other than that for which a licence to enter is granted is a trespassory entry. But it does not seem likely that the courts will be hasty to divide buildings artificially into ‘parts’ in the way that would be necessary to make a case of burglary out of the situation presented here.
With respect to Mr Osborne it seems to us that that passage is not dealing with the present situation at all. It is dealing with a situation where there is no physical demarcation at all and the only matter which may cause the man to be a trespasser is a change of intention in his own mind. This is not the situation here. Here there is a physical demarcation, and if one turns to the passage where Professor Griew is dealing with the situation which exists here, we find, at p 64:
A licence to enter a building may extend to part of the building only. If so, the licensee will trespass if he enters some other part not within the scope of the licence. To do so with intent to commit in that other part one of the specified offences, or to do so and then to commit or attempt to commit one of those offences therein, will be burglary.
That seems to us precisely to fit the circumstances of the present case and really deals the death blow to this part of Mr. Osborne’s submission.
If support is required, it is to be found in Professor Smith’s publication, The Law of Theft, 3rd ed. (1977), p. 152, para. 329(i), where he says:
A customer in a shop who goes behind the counter and takes money from the till during a short absence of the shopkeeper would be guilty of burglary even though he entered the shop with the shopkeeper’s permission. The permission did not extend to his going behind the counter.
There are similar passages at paragraphs 331 and 334. Paragraph 331 is the only one to which I need refer:
It would seem that the whole reason for the words ‘or part of a building’, is that D may enter or be in part of a building without trespass and it is desirable that he should be liable as a burglar if he trespasses in the remainder of the building with the necessary intent. It is submitted that the building need not be physically divided into ‘parts’. It ought to be sufficient if a notice in the middle of a hall stated, ‘No customers beyond this point’. These considerations suggest that, for present purposes, a building falls into two parts only: first, that part in which D was lawfully present and, second, the remainder of the building. This interpretation avoids anomalies which arise if physical divisions within a building are held to create ‘parts’.[8]
[8]Ibid 1174-5.
According to the applicant’s submission, this decision of the Court of Appeal established that the phrase ‘part of a building’ was to be interpreted as ‘referring to a part to which the licence of the person [to be] in the building did not extend’. Further, it was said, the decision appeared to endorse the observation of the academic writers quoted by the Court — Professors Smith and Griew — that an intention should not be imputed to the legislature to ‘divide buildings artificially into parts’.
We are not persuaded by this argument. The question under consideration by the Court of Appeal, and by the academic writers cited, was quite different from the present question. There, the person said to have committed the offence of burglary had entered the store lawfully, pursuant to the (implied) licence granted by the shopkeeper. It was a non-trespassory entry. The question for determination was whether it was possible, nevertheless, for the person to have become a trespasser (for the first time) once inside the building. The Court concluded, consistently with the academic writings, that this could have occurred if the person had entered a part of the building to which the licence to enter did not extend.[9] The remark about ‘not dividing buildings artificially into parts’ was made quite specifically in reference to that situation. For, as Professor Griew said in the first passage cited, it is only when a separate ‘part’ of a building can thus be identified that a person who has entered lawfully can subsequently become a trespasser, so as ‘to make a case of burglary out of the situation presented here’.
[9]See Barker v The Queen (1983) 153 CLR 338, 345.
As the court said in Chimirri, no such issue arises here. The applicant was a trespasser from the moment he entered the house. There was no question of a lawful entry becoming a trespassory entry because of his having gone into a separate part of the building, being a part to which the permission to enter did not extend. On the contrary, he was and remained a trespasser, and therefore entered the bedroom —being a part of the building — as a trespasser. In contradistinction to what was said in Walkington, it was not the applicant’s ‘change of intention in his own mind’ which caused him to be a trespasser. He was already a trespasser. It was the formation of the intent to assault which, on entry into the bedroom, made him a burglar on entry into that part of the building.
The applicant also relied on the explanatory memorandum to the 1973 Victorian legislation which enacted what is now s 76 of the Crimes Act 1958 (Vic). The memorandum referred to s 9(1) of the corresponding UK legislation, which provided (relevantly) that:
(1) A person is guilty of burglary if –
…
(b)having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
The explanatory memorandum made clear that no such provision was to be adopted in Victoria:
The English provision also makes it burglary to enter as a trespasser, but without other criminal intent, and thereafter commit a theft, personal assault, or malicious damage; here also, it is thought that the principle of ‘relation back’ thus involved is undesirable.[10]
[10]Explanatory Memorandum, Sex Offenders Registration Bill 2004 (Vic) 6.
Mr McLoughlin submitted that the interpretation upheld in Chimirri, and supported by the Crown in the present case, involved the very kind of ‘relation back’ which was rejected in 1973 and, hence, would render the choice made by the legislature nugatory. With respect, we do not agree. The English provision was, again, concerned with conduct of a different kind. Under that provision, a person who entered a building (or part of a building) without criminal intent, but once inside committed a relevant offence, was effectively deemed to have had at the time of entry the intent to commit the offence. That was what was meant by a ‘relation back’.[11] The criminal intent evidenced by the offending inside the building (or part) was deemed to ‘relate back’ to the time of entry into the building (or part).
[11]Cf Barker v The Queen (1983) 153 CLR 338, 364.
That is not this case. The Chimirri interpretation involves no ‘relation back’. Rather, it concentrates on the actual intention at the time of entry into the relevant part of the building, the person being a trespasser at that time.
We accept, however, that the interpretation question is not free from doubt. There is force in the proposition that the words ‘or part of the building’ were included to deal only with the kind of case discussed in Walkington, that is, where the entry to the building is lawful but there is a subsequent entry (with criminal intent) into a part of the building which the person has no permission to enter. On that view, because the applicant in the present case entered the building (in this case, the victim’s house) as a trespasser, there was no occasion to rely — and no warrant for relying — on the ‘part of the building’ alternative. The applicant either committed burglary at the point of his entry into the house, or not at all.
On the other hand, if this argument were correct, it might produce anomalous results. While the shop customer in the Walkington case (who entered the building lawfully) commits burglary on entering a particular part of the building with criminal intent, the applicant (who entered the building as a trespasser) would not commit burglary on entering a particular part of the building with criminal intent. The distinction is, of course, said to lie in the fact that the applicant required no separate permission to enter the bedroom. But, as we have said, he had no permission to enter the house in the first place.
As noted earlier, this Court will follow its previous decisions —and decisions of other intermediate appellate courts on issues of uniform law[12] —unless persuaded that they are ‘plainly wrong’.[13] For the reasons that we have given, it cannot be said that the decision in Chimirri was plainly wrong. The interpretation adopted was open on the language of s 76(1), drawing as it did on the fundamental conception of trespass as a continuing state. On the authority of that decision, this ground of appeal fails.
[12]DPP v Patrick Stevedores Holdings Pty Ltd (2012) 296 ALR 156, 180 [111]-[112].
[13]BDX (2009) 24 VR 288, 314 [155].
In conclusion, we would say this. It is not clear why prosecutors apparently see it as necessary, in cases such as these, to charge aggravated burglary in addition to the substantive offence(s) committed inside the building. In the present case, the charges of indecent assault carry a maximum penalty of 10 years’ imprisonment. The charge of aggravated burglary, on the other hand, carries a maximum penalty of 25 years’ imprisonment.
That the substantive offences were committed at night, in the victim’s bedroom and following an unauthorised entry into her house, is a very significant aggravating feature of the offending, warranting substantially higher sentences on the indecent assault counts than would otherwise be the case. That being so, we would have thought that conviction and sentence on the indecent assault counts alone would have led to essentially the same result. As Chimirri and the present case demonstrate, the addition of an aggravated burglary count adds a layer of complexity — for prosecutor, judge and jury — which is difficult to justify.
Ground 2 – Zoneff direction
Under this ground, the applicant submits that the learned trial judge erred in not giving a full Zoneff direction. The direction given by the judge was as follows,
Now, you have also heard a lot of questions by
[the prosecutor] of the accused which attribute lies to him.
[The prosecutor] submits that he has told a number of lies, that Mr Singh has told a number of lies, and that as such Mr Singh lacks credibility. That was her submission to you. She submitted that he lied about having an argument with Mr Mishra, that he lied to police in the record of interview and that he lied to you about the amount of alcohol that he had consumed that night.
Now, you will make up your own mind about whether Mr Singh was telling lies, and if he was, whether he was doing so deliberately. It is for you to decide what significance any suggested lies have in relation to the issues in this trial, but I must give you this warning, and it is a direction of law: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that that is evidence of guilt.
Now, Mr Singh gave evidence and said he had lied. Now, you might recall his evidence. This is what he said. When being asked questions by [defence counsel] in his evidence in chief, as it is called, he said this. He said he lied to police when he said he and Mishra had argued. He told the lie because one, he said, ‘I wanted to get out of that trouble, go home and sleep’, and two, ‘I remember the lady saying her husband had called the police and I was wondering why all this happened. There's something wrong. I was just trying to get rid of the cops, that's all’.
And regarding the argument with Mr Mishra, he said, ‘I was just trying to make up – and this thing came out of my mouth’. That is what he said in evidence in chief, and he was asked about that by [the prosecutor], and he said this. He said he recalled clearly the conversation with police and he said that he lied to them to get them off his back. He said he wanted to get to his graduation, therefore he told them he had had a fight with his flatmate the night before.
When he told police, he said, ‘I can promise you I had nothing to do with it’, he did not consider that to be a lie because he did not know the address of the premises that they were asking about. He agreed, however, with [the prosecutor] that the police only mentioned Newport and not the specific address of The Strand. He agreed at that point in time when being asked he did recall that he had spoken to an Asian lady. He said maybe at that point he knew what the policewoman was referring to.
‘I don't know’, he said. ‘I don’t know what she’s referred’. I am quoting. ‘I don't know what incident she was talking about, but he just told her he had nothing to do with it, trying to get rid of all that’. I am quoting there. So that was it.
As I have said to you, [the prosecutor] submits that there are too many lies told by Mr Singh and that that adversely affects his credibility, she says, including not just the sections that I have read but what he told the police in the record of interview and she suggested he lied about the amount of alcohol that he had consumed on this particular evening.
[Defence counsel] submits that there can be good reasons why any of the lies, if you find they are lies, were told, and that Mr Singh gave his explanation, which I have just read out to you, for why he said that he and Mishra had had an argument, that is Mr Mishra.[14]
[14]Emphasis added
The applicant submits that, if the jury had been satisfied that he had lied about the amount of alcohol he consumed, they may well have concluded that he must therefore be guilty. To guard against the risk of impermissible reasoning of that kind, it was said, a stronger and more detailed warning was required, including a direction that the jury must be satisfied beyond reasonable doubt that the applicant had lied.
The direction given was specifically agreed to by both trial counsel. The trial judge asked counsel whether the expanded Zoneff direction was needed. Counsel expressly stated that it was not.
The prosecution attack on the applicant’s credibility relied on the following: the lie he had told the police about getting into a fight with his housemate; the lies in his record of interview; and the inconsistencies in the information he provided to Dr Jager. In her closing address, the prosecutor relied on the evidence given by the applicant on oath, that he had no memory of the events that occurred at the complainant’s home. She said that this was at odds with what he had conveyed to Dr Jager, in which he described various things that occurred. The prosecutor relied on these inconsistencies only for the purpose of attacking the applicant’s credibility. None of the lies was used as an admission of guilt, nor was it suggested to the jury that they could use the lies in that manner.
The applicant admitted he had lied to the police and gave explanations as to why he had lied. It follows, in our view, that there was no need to direct the jury that they need to be satisfied beyond reasonable doubt that he had lied about these matters. As regards the inconsistencies in what he told Dr Jager about the amount of alcohol he had consumed, the applicant admitted he had made an error in his initial account and was required to clarify with Dr Jager the actual amounts he says he consumed.
In the circumstances, the decision of trial counsel not to seek an expanded Zoneff warning can be seen to have been a rational forensic decision. Counsel doubtless considered that his client’s interests were best served by not having the judge further highlight the lies. The applicant is therefore bound by the forensic decision his counsel made.[15]
Ground 3 – The learned trial judge erred by repeating to the jury the prosecution argument that ‘the first thing [the applicant] did’ upon entering the bedroom was to kiss the complainant when there was no evidence to support that contention
[15]James v The Queen [2013] VSCA 55; Tunja v The Queen [2013] VSCA 174.
At this point in the charge, the judge was summarising the argument of the prosecutor as it related to proof of the applicant’s intent as he entered the bedroom:
The prosecution says … you should be satisfied of that element beyond reasonable doubt, as the first event that was referred to by [the complainant], the first thing the accused did was he walked over to her and kissed her on the lips.[16]
[16]Emphasis added.
This was an accurate statement of the complainant’s evidence. As the applicant’s submissions acknowledged, her evidence was that she was awakened by the applicant kissing her. The prosecution submission was that, in the absence of any other evidence, it was open to the jury to infer from that evidence that he entered the bedroom with the intention of indecently assaulting the complainant. That was a proper submission, and there was no error on the judge’s part in restating it for the assistance of the jury. This ground fails.
B. SENTENCE APPEAL
Ground 1 The learned sentencing Judge erred in taking into account in sentencing a matter with which the applicant had been charged when the prosecution had been discontinued.
At the time of this offending, the applicant had been issued with a summons for an alleged earlier sexual offence. The charge was later discontinued by the Director of Public Prosecutions. The judge was told that this had occurred because the prosecutor concluded that it could not ‘negate [his] belief in consent’.
The existence of the summons at the relevant time was relied on by the prosecution on the plea, in relation to sentence and in relation to registration as a sex offender. In relation to sentence, the judge said that the prosecutor had:
expressed concern regarding your possible minimisation of the alleged offending behaviour for which you were charged although not ultimately proceeded against in your description of that event to Dr Cavezza.
Her Honour said:
In my opinion, the relevance to this is problematic in any way other than the fact you were on summons for that offending at the time you committed the offences before me. You were therefore, if you like, on notice, particularly in relation to sexual offending.[17]
[17]Emphasis added.
Later in her reasons, the judge said:
There is an element of specific deterrence also required when sentencing you in that at the time of this offending, whilst not an aggravating feature when sentencing you, you were on summons having been charged with other sexual offences, albeit they did not continue to conclusion or conviction. I do note you do not have any prior court appearances and also that nothing subsequent has been alleged against you.[18]
[18]DPP v Singh (Unreported, County Court of Victoria, 31 August 2012, Judge Pullen) (‘Reasons’) [105].
The submission for the applicant was that the judge thus took into account an irrelevant consideration. It was not relevant to the question of specific deterrence that, at the time of this offending, the applicant had been charged with another sexual offence, which was subsequently not proceeded with. Senior counsel for the Crown conceded on the appeal — properly, in our view — that this submission must be upheld. He contended, however, that no different sentence should be imposed.[19]
[19]Criminal Procedure Act 2009 (Vic) s 281(1).
We agree with that submission. Although the actual degree of physical contact was at the low end of seriousness, the circumstances made it very serious offending indeed. The complainant had been awakened from sleep in her own room, by a complete stranger, and sexually assaulted. Her baby son was in bed with her. We would not interfere with the sentence.
We turn finally to the question of sex offender registration.
Sex offender registration
The second ground of appeal contends that the judge erred —
in ordering the applicant to comply with the Sex Offenders Registration Act 2004.
The applicant fell to be sentenced as a serious sexual offender in relation to Count 4 (indecent assault) if he was sentenced to a term of imprisonment on counts 2 and 3 (both indecent assaults).[20] That is what occurred. Once the applicant was a serious sexual offender, he became subject to the Sex Offenders Registration Act 2004 (Vic).[21] Section 8(2) of that Act states:
A Class 4 offence is an offence listed in Schedule 4 committed against a person other than a child by a person who is (whether because of, or apart from, that offence) a serious sexual offender for the purposes of this section.
Section 11(1) of the Act is then engaged:
If a court finds a person guilty of an offence that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.
[20]Sentencing Act 1991 (Vic) s 6B.
[21]Sex Offenders Registration Act 2004 (Vic) s 8(3).
The discretion conferred by s 11(1) is subject to sub-ss (3) and (4), which provide:
(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
(4) For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.
Addressing the question of registration and reporting, the trial judge said:
Returning to [the prosecutor’s] submission that I should exercise my discretion and place you on the Sex Offender Register for 8 years, [the prosecutor] also relied upon the conclusion of Dr Cavezza that you were a moderate risk of sexually re-offending and she submitted that as such, I needed to consider protection of the community from you as being a paramount consideration and she submitted you should be placed on the Register.
[The prosecutor] conceded in relation to the Sex Offender Register, that while your performance on bail had been ‘exemplary’, you had been subject to strict bail conditions and therefore she submitted were still, in essence, to be tested in the community without that supervision. When you were released she said the Sex Offender Register would provide the necessary supervision.
[Defence counsel] submitted that when determining whether you should be placed on the Sex Offender Register, I should take into account your young age at time of sentence. He urged I should have concerns regarding the assessment of you as a moderate risk of sexually re-offending by Dr Cavezza. He said that she had taken into account in that assessment that you had been charged for other sexual offences which ultimately did not proceed.
I do not accept [defence counsel’s] submission regarding her risk assessment. It seems clear to me Ms Cavezza reached her conclusion regarding your future risk of sexually re-offending on an appropriate basis, ie, that you had been charged with sexual offences, and she acknowledged they did not proceed. Such is a relevant consideration for her when utilising the RSVP assessment tool relevant to risk.
In my opinion, it is appropriate I exercise my discretion and order that you be placed on the Sex Offender Register for a period of 8 years. I have so concluded based on a number of factors, including your assessment of future risk, your need for ongoing counselling/assistance to address your alcohol consumption, and the circumstances of this offending involving a home invasion and an assault on an occupant previously unknown to you. These factors are all relevant to my need to protect members of the community from you.[22]
[22]Reasons, [96]-[100].
Her Honour had the benefit of a report from Forensicare, which had been obtained at the request of the prosecution and the defence. That report was prepared by Dr Cristina Cavezza, a clinical and forensic psychologist. Dr Cavezza carried out a number of assessments of the applicant, including a risk assessment relating to sexual offending and sexual violence offending. She concluded as follows:
The main risk factors identified for Mr Singh include his denial of the commission of the offence, problems with alcohol and depression and few positive social supports. Overall, Mr Singh presented with a number of unchangeable risk factors related to the nature of his offending. However, he presented with few of the dynamic risk factors and therefore was assessed as being a moderate risk for sexual violence. It appears that serving a period of incarceration has acted as a specific deterrent for reoffending. His expression of remorse and compliance with all management measures imposed upon him suggests he is aware of the inappropriateness of his actions and is motivated to not reoffend. Although Mr Singh is adamant he will not reoffend, he is at-risk of reoffending if his judgement is impaired due to alcohol consumption. If he were to reoffend, the likely victim would be an adult female who is either an acquaintance or stranger.
On the plea it had been submitted that Dr Cavezza had here taken into account an irrelevant consideration, namely, the charge which had been discontinued. What Dr Cavezza had said was:
Sexual Violence History: There was no past but partial current evidence of Chronicity of Offending (e.g., high number of offences over a short period of time) as Mr Singh has been charged with two sexual offences within less than two years. There was no past or present evidence for Diversity of Sexual Violence as Mr Singh’s offending varied only slightly in terms of type of contact with the victim, or nature and degree of coercion used. It is noted that the offence he was charged with but never convicted of involved a victim he had just met and the current victim was unknown to him. With respect to Escalation of Sexual Violence, Mr Singh’s offending did not appear to increase in frequency, severity or diversity over time. Thus, he displayed no evidence for that item. There was also no evidence for Physical of Psychological Coercion in Sexual Violence.[23]
[23]Emphasis added.
There is, we think, real force in the complaint made by defence counsel that, given that the previous charge against the applicant had been discontinued, it had no relevance to the risk assessment by the expert. As appears from the above extract, Dr Cavezza had said there was evidence of ‘chronicity of offending’, in that the applicant had been ‘charged with two sexual offences within less than two years’. In the absence of a conviction or some other special circumstance, the mere laying of a charge would not seem to shed any relevant light on the risk which a person presents. In the circumstances, however, it is neither necessary nor possible for us to determine that question. Before we could reach any definite conclusion, we would need expert assistance about the interpretation and application of the particular risk assessment tool.
As noted earlier, the sentencing judge regarded the laying of the earlier charge, and the applicant’s knowledge of it, as relevant to specific deterrence. We have already concluded that it was an irrelevant consideration for that purpose. The judge having taken the prior charge into account for that purpose, it must follow that the same (irrelevant) consideration affected her Honour’s assessment of risk for the purposes of s 11(1). Put another way, we could not be satisfied that her Honour’s conclusion — that the applicant presented a risk to the sexual safety of others — was not impermissibly influenced by that consideration.
That error vitiates the formation of the opinion under s 11(1), which is a precondition to the exercise of the power. That being so, the exercise of power itself — to order reporting obligations — must be set aside.
In approaching the question for ourselves, we would conclude — as the judge did — that the applicant represents a risk in the relevant sense. Given, however, that this offending was causally related to his overindulgence in alcohol, and given that he had abstained from alcohol throughout his 13 months on bail, we would assess it as a low risk. Moreover, we have no doubt that the experience of imprisonment will have had the most salutary effect on him.
As this court held in the recent case of Bowden v The Queen,[24] the decision whether or not to exercise the power under s 11(1) involves weighing against the identified risk the onerous nature of reporting obligations under the Act.[25] In the circumstances of the case, we are not persuaded that such risk as the applicant presents warrants the imposition of such obligations. Accordingly, we make no order under the Act.
[24][2013] VSCA 382.
[25]Ibid [40].
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