MA v The Queen
[2012] VSCA 214
•7 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0878
| M A | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, BONGIORNO JJA and WHELAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 12 June 2012 |
| DATE OF JUDGMENT | 7 September 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 214 |
| JUDGMENT APPEALED FROM | R v [MA] (Unreported, County Court of Victoria, Judge Punshon, 28 October 2009) |
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CRIMINAL LAW − Election to renew application for leave to appeal against conviction − Incest − Attempted incest − Indecent act with person under the age of 16 − Offences committed against step daughter − Whether unfairness caused by late admission of evidence of implied admission − Whether verdict unsafe and unsatisfactory − Relevance of applicant’s failure to give evidence − Weissensteinerv The Queen (1993) 178 CLR 217 considered − Application for leave to appeal granted − Appeal dismissed.
CRIMINAL LAW − Appeal against sentence − Sentence of nine years and three months’ imprisonment, with non-parole period of seven years and three months − Whether sentence manifestly excessive − Whether judge erred in failing to impose a sufficient gap between head sentence and non-parole period − Appeal dismissed.
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| 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 |
NEAVE JA:
The applicant, who is now aged 41, was found guilty by a County Court jury on 18 August 2009 of five counts of incest, one count of attempted incest, and one count of committing an indecent act with a child under 16, which allegedly occurred between 2004 and 2008. The complainant (‘T’), who is the applicant’s stepdaughter, was between 8 and 12 years old when the alleged offending occurred.
The applicant also pleaded guilty to a single count of possessing child pornography, arising out of a separate presentment.[1]
[1]The material the subject of the pornography count was unrelated to the complainant.
Following a plea in mitigation, the applicant was sentenced on 28 October 2009 as follows:
Count Offence Maximum Sentence Cumulation X02792477.1A 1 Incest
Crimes Act 1958 s 44
25 years’ imprisonment
Crimes Act 1958 s 44(2)
5 years’ imprisonment 1 year 2 Incest
Crimes Act 1958 s 44
25 years’ imprisonment
Crimes Act 1958 s 44(2)
4 years and 6 months’ imprisonment 1 year 3 Incest
Crimes Act 1958 s 44
25 years’ imprisonment
Crimes Act 1958 s 44(2)
4 years and 6 months’ imprisonment 1 year 4 Incest
Crimes Act 1958 s 44
25 years’ imprisonment
Crimes Act 1958 s 44(2)
5 years’ imprisonment Base 5[2] Attempted incest
Crimes Act 1958 s 44 & s 321M
20 years’ imprisonment
Crimes Act 1958 s 44(2) & s 321P(1)
4 years’ imprisonment 6 months [2]Count 6, which alleged an indecent act against T, was an alternative to count 5.
Count Offence Maximum Sentence Cumulation X02792477.1A 7 Incest
Crimes Act 1958 s 44
25 years’ imprisonment
Crimes Act 1958 s 44(2)
4 years and 6 months’ imprisonment 6 months 8 Indecent act with child under 16
Crimes Act 1958 s 47
10 year’s imprisonment
Crimes Act 1958 s 47(1)
3 months’ imprisonment Nil X02792477.2 1 Possession of child pornography
Crimes Act 1958 s 70
5 years’ imprisonment
Crimes Act 1958 s 70(1)
9 months’ imprisonment 3 months Total Effective Sentence: 9 years and 3 months’ imprisonment Non-Parole Period: 7 years and 3 months Pre-sentence Detention Declared: 134 days Section 6AAA Statement: 12 months’ imprisonment (Presentment X02792477.2 only) Other orders:
Sentenced as serious sexual offender on Counts 3, 4, 5, 7 and 8 (Presentment X02792477.1) and Count 1 (Presentment X02792477.2).
Reporting conditions for life under Sexual Offenders Registration Act 2004.
Disposal order.
Forensic sample order.
The applicant sought leave to appeal against conviction and sentence. Leave to appeal against conviction was refused by Ashley JA, who also granted leave to appeal against sentence.
Application for leave to appeal against conviction
Proposed grounds of appeal
The applicant has now elected to renew his application in relation to the first two grounds, which were before Ashley JA. He also seeks leave to add a third ground of appeal against conviction. The proposed grounds are as follows:
1.The trial miscarried as a result of the circumstances in which the Prosecution were permitted to lead the additional evidence of [M] as evidence of an implied admission.
2. The verdicts of the jury are unsafe and unsatisfactory.
3.The learned trial judge erred in directing the jury that they could use the evidence of [M] and [J] as supportive of the evidence of the complainant.
The Crown and defence cases
Except for Count 3, in relation to which two of T’s friends, ‘M’ and ‘J’, gave evidence for the prosecution, the Crown case was almost entirely based on T’s evidence. Evidence was also called from T’s mother. T, M and J were aged between 12 and 13 years at the time of trial, and each made a VATE in September 2008. T was cross-examined at a special hearing in July 2009.
The applicant neither gave nor called any evidence. He had earlier made a ‘no comment’ statement to the police.
The circumstances of the incest, attempted incest and indecent assault offences, as described in the Crown’s written submissions, were set out in Ashley JA’s leave reasons as follows:
The Applicant was born on 20 October 1970. …
The Applicant began a de facto relationship with the victim’s mother in 2001. The victim, [T] was born on 30 September 1996 and was approximately 8 years of age when the offending began. The facts giving rise to the charge are as follows:
Count 1 Incest ― the offending occurred in 2004 when the victim was approximately 8 years old.
•The victim was asleep in her bedroom when the Applicant entered her room and woke the victim. The Applicant proceeded to pull his pants down and rub his penis against the victim’s belly and then between the lips of her vagina.
•The victim stated that the incident ended when ‘he like did up his pants then walked away and said that was good I’ll come back in a couple of days ...’
Count 2 Incest ― the offending occurred in 2007 when the victim was approximately 11 years old.
•The victim and the Applicant were at home alone when the Applicant called the victim into his bedroom. The Applicant told the victim to lie on the bed because he wanted to show her something.
•The Applicant proceeded to suck his fingers and inserted them into the lips of the victim’s vagina.
Count 3 Incest ― the offending occurred in 2008 when the victim was approximately 11 years old, just before her 12th birthday.
•The victim was at home on her computer speaking with friends via webcam. The Applicant entered the room and pushed the victim away from the webcam. The Applicant touched the victim and laid her on the floor where he inserted his fingers between the lips of the victim’s vagina. This incident was partially observed by the victim’s two friends via the webcam, although neither saw the sexual touching.
Count 4, 5, 6 & 7 ― these counts are all part of the one incident which occurred a few days after Count 3.
•Count 4 Incest - the Applicant entered the victim’s bedroom whilst she was asleep. The victim woke to find the Applicant lying on top of her. The Applicant removed his penis from his pants, rubbed his penis on the victim’s stomach area and the proceeded to place his penis between the outer lips of her vagina. Although the Applicant’s penis did not penetrate the vaginal canal, the victim stated that the Applicant was ‘trying to push it in’.
•Shortly thereafter the Applicant attempted to insert his penis into the victim’s mouth however this was unsuccessful as the victim kept her lips closed (Count 5 Attempted Incest). Count 6 (Indecent Act) was an alternative to Count 5.
•The Applicant then proceeded to lick and kiss the victim’s vagina, with his tongue penetrating the lips of the victim’s vagina (Count 7 Incest).
Count 8 Indecent Act ― the offending occurred in 2008 when the victim was approximately I2 years old.
•The Applicant approached the victim in the home whilst her mother was absent. The Applicant touched the victim’s bottom and said ‘yum’.
In his reasons for sentence, the judge described the offence covered by the pornography count as follows:
On 24 September 2008 police attended your home. You were arrested and a search was conducted. Police located a computer in the master bedroom. Images of child pornography were located. A selection of the images was presented to me on the plea and Mr Shwartz, the Prosecutor, summarised their content in his opening. There were a total of 17 images consisting principally of mpeg images as your counsel, Mr Regan, referred to them, and two or three still pictures. The titles are shocking. The images are sexually explicit and depict some children who appear to be under the age of ten, others, submitted Mr Regan, seemed to be in their early teens. I must say, it is not easy for me to identify with any precision the ages of the children depicted. There was a discussion immediately before the delivery of these sentencing remarks this morning at which time I referred to the content of the images. They do depict on occasions penetration. Importantly, the number of images are limited particularly compared to some cases in this court which involve thousands of images. Various forms of sexual activity are depicted in the images. Your counsel emphasised that the images were not used as a corruptive tool.[3]
[3]R v [MA] (Unreported, County Court of Victoria, Judge Punshon, 28 October 2009) (‘Reasons’) [12].
We now turn to the proposed grounds of appeal against conviction.
Proposed ground 1
This ground relates only to the offending the subject of Count 3, which was referred to as ‘the MSN incident’. T and her two friends M and J (each at her own house) had been communicating via MSN Messenger on their computers. This program involved them typing messages to each other in dialogue boxes on the screen. T had a webcam on her computer, so that M and J could see, but not hear her. The session was interrupted when somebody entered T’s room and the screen froze. The session later resumed for a short time.
M and J each gave evidence about what occurred during and following the time that the screen froze. (J ‘s evidence was that the screen froze and unfroze more than once,[4] but M said this only occurred once.[5])
[4]At one point, she said it had occurred twice.
[5]T did not give any evidence about the screen freezing.
T’s evidence was that the offending covered by Count 3 occurred on a Sunday, but she was unsure of the date. The offence occurred during the time of the interrupted transmission. She said that the applicant had got her in the corner and started touching her ‘down below’ and on her chest on top of her clothes. He then got her on the floor, lay on top of her, touched her underneath her clothes and tried to kiss her. She became angry, started crying and said ‘get off me’, and she thought she had yelled a little bit. He then said ‘Fine. I’ll come back tonight’ and left the
room. He was in the room for about 10 minutes and after the incident, she had gone back onto her computer.
She said that her friends, M and J, saw her crying on the screen and asked her what was wrong. She said she did not want to type it and had asked M to call her. Both M and J later telephoned T and asked what happened, and she told them what had happened ‘because [she] couldn’t handle it any more’. The following day at school, she had asked M not to tell anyone, because she ‘didn’t want like gossip going around’.
In cross-examination at the special hearing, T was asked why she had not told anyone else about the allegations and she said it was because she was scared and then said she was scared of what people would think of her. She denied that she told M not to say anything to anyone because she knew nothing sexual had happened.
In her VATE interview, M, who was then aged 12, said that on a Sunday about two months previously, she had been talking to T on MSN. She saw the chest area of someone wearing a dark jumper lunge across the camera and then the screen had frozen. She had seen T crying and asked T ‘is your stepdad in the room’, and T said ‘yes’, so she had assumed it was T’s stepfather who was leaning across the screen. Initially, M said that the person she assumed was T’s stepfather was yelling at and threatening T saying ‘If you tell anyone, you’ll be in trouble’, and T was telling him to leave the room. The person then went away and T was still crying.
M said that after the yelling, she rang T, who had said that it had been happening for a long time and she was ‘so scared to tell anyone about it’. She also said that after the phone conversation, which lasted about five minutes, she could see T on the webcam and T had her mobile and the stepfather had come back into the room. M said that ‘I think that he was talking to her about that he’ll do it again and…she’s not allowed to tell anyone.’
Later in the police interview, M said that when the stepfather had come into the room the second time, she could see T’s facial expression and that she was yelling, but that T had told her via MSN what the applicant had said, including that he would ‘do it again’. She said that when the stepfather had come into the room with the webcam on both the first and second occasion, she had not actually heard the appellant speaking. However ‘when we were on the phone together [she] did hear someone yelling’.
J, who was aged 11 years at the time of her VATE, said that the MSN incident had occurred about two months previously. She said she had seen T on the webcam lying on her bed, when a person who she thought was T’s stepfather walked in. She could see his arms and head, and said he was wearing a singlet top and jeans. The screen then ‘froze for a bit’, and when it started again, she saw the man push T off the bed onto the ground. When she could no longer see T on the bed, she had then turned off the webcam because she was really scared. She then phoned T ‘straightaway’, who told her that her stepfather had thrown her to the floor and started touching her and that ‘he always did it to her’. J said she had never met T’s stepfather.
In their VATE interviews, neither M or J claimed to have seen the sexual attack. As I have said, M said she observed T behaving as if she was yelling at someone and at one point in the VATE, J said she had seen T being pushed off the bed, although in later cross-examination she said that this was based on what T had told her in the phone call. J did not say that she had seen anyone coming back into the room.
In discussion between counsel and the judge prior to the empanelling of the jury, the judge asked defence counsel to clarify which parts of the VATE tapes of T and her friends would be admitted as evidence of recent complaint without objection. Defence counsel accepted that the evidence of T and of J that T had told her that her stepfather had come into the room and thrown her to the ground and started touching her was admissible as a recent complaint. His Honour pointed out that some of the statements made by both M and J about what T had told them were of a generalised nature and therefore could not be relied on as recent complaints to support T’s credibility.
There was then further discussion to clarify the evidence which the Crown would seek to rely on as evidence of recent complaint, and the evidence which defence counsel would rely on to demonstrate inconsistency between the evidence of T and her friends, and to show that T had delayed in complaining about sexual acts other than the MSN incident. Ultimately, the judge left it to counsel to agree on the evidence which should be led and said that if there was any dispute, he would resolve it. At that stage, counsel did not seek exclusion of M’s evidence.
When the trial began, T’s VATE and the DVD of her cross-examination at the special hearing was played to the jury. The prosecutor then told the judge that after looking at her own VATE, M wished to give evidence that during her telephone conversation with T after the MSN session had ended, M had in fact heard somebody tell T ‘don’t say anything’ or words to that effect.
Initially, defence counsel had not sought to exclude M’s evidence despite the possible inadmissibility of portions of it because he sought to exploit inconsistencies between it and T’s evidence. Neither T nor J had referred to the applicant re-entering the room after the first incident. There was a difference between M and J as to whether the computer screen froze more than once, and an inconsistency in M’s evidence which suggested that she may not have heard the applicant speaking, but had simply recounted what T had told her.
After seeking further instructions, the prosecutor told the judge that he wished to lead M’s evidence that she had heard a male voice telling T that she should not say anything while she was on the phone talking to T, as an admission by the applicant. The judge pointed out that this evidence amounted to an ‘implied admission’ and that if it were accepted by the jury, it could be ‘very damaging’ for the applicant.
Both counsel then agreed that a Basha hearing should be held to clarify the precise nature of the evidence which M proposed to give. After M gave her evidence and was cross-examined at the voir dire, there was further discussion between counsel and the judge as to how to deal with any unfairness to the accused which might arise because of the lateness of M’s statement and the fact that it had taken the defence by surprise.
After the Basha enquiry, the judge asked defence counsel ‘What do you want to do’ and asked for a clear response. None was provided, although defence counsel said that his initial plan not to seek exclusion of parts of M’s evidence had been compromised. He indicated that he was considering whether to seek either the discharge of the jury or the exclusion of M’s evidence. He submitted that it would be unfair for M’s later statement to be admitted, because he had made a tactical decision not to seek exclusion of M’s VATE before M had told the prosecutor about evidence she would give about what she had heard the applicant say when she was talking to T on the phone. Defence counsel said he did not wish to recall T to put inconsistencies between her evidence and the evidence of M to her because ‘it was unlikely that T would give responses that would assist the defence case.’
After lengthy discussion between counsel and the judge, the prosecutor and defence counsel reached agreement that some passages in M’s VATE would be deleted. The differences between T’s account and that of M were retained. Ultimately, defence counsel chose not to seek a discharge of the jury or to recall T, having negotiated the deletion of some parts of the VATE and ascertained what evidence M was likely to give by cross-examining her at the Basha enquiry.
In cross-examination, M repeated the statement in her VATE that just before the screen froze, she saw the chest of someone wearing dark blue clothing lunging across the camera. She said the image froze only once and did so for about 10 seconds. Her evidence was that she had phoned T after they stopped communicating by MSN and that while she was talking to her, a male had yelled at T
saying ‘Don’t tell anyone, don’t tell anyone’ and T had said to that person ‘Get out of my room’.[6]
[6]Initially, she said that this was the voice of the complainant’s stepfather.
She was cross-examined as to why she had not told the policewoman who interviewed her that she directly heard a voice saying ‘Don’t tell anyone’, although she had said in her VATE tape that she had heard someone yelling. She said that at that time, she did not remember what she had heard, but had thought about it later. It was also put to her that at the committal, she had said she had not been able to hear anything while she was using MSN Messenger, but had seen T apparently yelling. M said that she thought that counsel at the hearing was asking whether she could hear the voice over the webcam and not over the phone. She said she thought counsel ‘was asking that question about when I could see [T] yelling at someone. I thought he was asking if I could hear anyone yelling back’.
M conceded that she had not seen T’s stepfather in the room when the yelling was occurring, and that she could not recognise his voice. However, she said it was a male voice and she had been told by T that she was alone in the house with her stepfather.
Counsels’ submissions
Counsel submitted that defence counsel had been taken by surprise by the late admission of M’s additional evidence and its admission had led to an unfair trial. In his written case, reference was made to the following matters:
a)the applicant’s lack of notice about the evidence, which came to light almost a year after the VATE tape was made;
b) the inconsistency between the evidence and M’s VATE tape;
c) the fact that a jury had already been discharged a week earlier;
d) the fact that M’s additional evidence was ‘so lacking in reliability and probative weight’ that it should not have been left to the jury as an implied admission. This was so because neither T nor J made any mention of the appellant having told T not to say anything;
e)the fact that M initially said in evidence that she could identify the applicant as the person who said the words, but later said this was something she had been told by T;
f)the fact that the complainant was never asked to confirm or deny the alleged comment;
g)the inability to show how the statement ‘don’t tell anyone’ could be linked to the conduct which was the subject of Count 3.
In reply, counsel for the Crown submitted that defence counsel had made a legitimate forensic decision not to challenge the admission of M’s evidence. Any potential prejudice to the conduct of the defence caused by the emergence of M’s additional evidence had been overcome by the prosecutor’s disclosure of that evidence, by the fact that defence counsel had ample opportunity to test M’s evidence in cross-examination during the Basha hearing, and by the careful directions on this matter which his Honour had given the jury.
Conclusion on proposed ground 1
Ashley JA refused leave to appeal on the ground that it was not reasonably arguable. He said that:
In my opinion, the ground is not reasonably arguable. Given that [the] applicant’s counsel faced a difficult forensic decision, he considered the alternatives and made an entirely rational choice. He was put under no time pressure to decide what course he should take. The new evidence, if accepted, was potentially damaging to the applicant. But it was apt to show yet another area of conflict between the evidence of the complainant and [M]; and to further impugn the reliability of the latter’s evidence, which was already compromised because of its confused and self-contradictory content.
I consider that his Honour correctly held that this ground was not reasonably arguable. After lengthy discussion with the judge, defence counsel made a legitimate forensic decision not to seek discharge of the jury or recall of T. Presumably, he decided that it was preferable to use the inconsistencies in M’s evidence, such as her original statement that she could identify the applicant’s voice, in order to undermine her evidence in support of T. He also wished to highlight the inconsistency between the evidence of M that the stepfather had come into the room twice, and T and J’s evidence that he had not done so.
If the jury accepted M’s additional evidence, it amounted to an admission that was potentially damaging to the defence. If the jury rejected M’s additional evidence, that was likely to benefit the defence by undermining M’s credibility.
The fact that the admission of the evidence could have weakened the defence case did not make it unfair. The prosecutor complied with his duty to call all relevant evidence from a relevant witness. The judge gave defence counsel ample time to consider the matter, and canvassed the various options with both counsel.
In cross-examination, defence counsel challenged M about her recent recall of what she said she had heard over the phone, among other matters. In his closing address, defence counsel told the jury that none of the three girls were satisfactory witnesses, that they were all friends and supported each other, and that there were so many inconsistencies and uncertainties between their accounts, that the jury ought have a reasonable doubt as to the applicant’s guilt.
The judge gave the jury an impeccable direction as to the circumstances in which the jury could treat M’s evidence that she had heard the applicant say ‘Don’t tell anyone’ as an implied admission. He reminded the jury that it was a matter for them as to whether they accepted M’s evidence that this statement had been made and told them that even if they did, this did not necessarily mean the applicant was guilty of the relevant offence. He also summarised the answers given by M in cross-examination and the submissions of defence counsel as to the inconsistencies within and between the evidence of T and her friends, and as to the recent emergence of M’s additional evidence about what she heard over the phone. He told the jury that a change in a witness’s evidence, such as the fact that M said nothing in her VATE about hearing a male voice saying ‘don’t say anything’ could ‘be used against the credit of that witness’.
In these circumstances, I would reject the argument that the late admission of M’s additional evidence resulted in an unfair trial and would refuse leave to appeal on the basis of ground 1.
Proposed ground 2
Counsels’ submissions
In his written and oral submissions in support of ground 2, the applicant submitted that the jury could not have accepted T’s evidence beyond reasonable doubt. He relied on the following matters:
·The delay in complaint. T’s evidence was that the applicant had been abusing her since she was five years old. In these circumstances, it was inexplicable that T had not complained to her mother,[7] particularly since her mother’s evidence was that T was assertive and strong-willed, and had been defiant to the applicant. Nor had T complained of the abuse to a counsellor, Alison Hunter, whom she had seen for sessions between June and September 2007 ‘for the purposes of working out relationship issues’ with family and friends, or a psychologist, Anna Napoli whom her father had arranged for her to see in April 2008, because she was arguing with people. She did not tell the welfare co-ordinator or the principal at her school about the abuse when they spoke to her two days after the MSN incident.
·T had a motive to make false allegations. The applicant’s relationship with T’s mother had broken down and her mother had wanted him to leave the household by early 2008. There was also conflict between T and the applicant. Shortly before the MSN incident, he had refused to allow her to have a slumber party for her birthday and to buy her some show bags. Her mother gave evidence that in 2007, she had found a piece of paper on which T had written in her diary that she ‘hated’ the applicant.
·The improbability of T’s description of the offending, particularly the acts of incest. It was submitted that T was an intelligent girl who was capable of fabricating the allegations of sexual abuse. Her evidence that the applicant was wearing his work jeans on two occasions four years apart when he allegedly abused her was inherently improbable. Further, in her VATE, T had initially complained that the applicant was ‘being really disgusting and he touches me and says stuff about my body which is uncomfortable.’ Although this might have been regarded as consistent with the conduct alleged in count 8, it was not consistent with the incest counts.
It was also submitted that although T alleged the applicant had penetrated her digitally and had penetrated the outer lips of her vagina, it was inherently unlikely that the applicant would not have achieved full penetration if this had actually occurred. T’s failure to allege that he had ejaculated was also said to reflect the fact that she had fabricated the abuse, but did not know about ejaculation because she had not received any formal sex education.
·The unlikelihood that the applicant could have abused T without detection. On some of the occasions when offences were alleged to have occurred, there were other children in the house and T had a lock on her door. (In fact, T’s mother’s evidence was that T had had a lock on her bedroom door for part of 2007, but not on the door of the bedroom into which she moved in late 2007 to early 2008.)
·Inconsistencies between T’s account of the ‘MSN incident’ (count 3) and the evidence of her friends. T said that the applicant had touched her and digitally penetrated her vagina during the MSN session. He left after 10 to 20 minutes and she resumed the MSN session while she was crying. M’s evidence was that the screen froze for no more than 10 seconds after which T appeared on the screen crying, giving insufficient time for count 3 to occur. It was also consistent with the defence case that T was already crying when she began using MSN Messenger because she had had an argument with the applicant about the time she was spending on the computer. J’s evidence was that when the image on the screen unfroze she could not see T, but that she rang T and spoke to her within a few seconds.
·Inconsistencies between the evidence of M and J. Reference has already been made to these inconsistencies. The applicant conceded that these inconsistencies reflected more on the credibility of M and J, than on the credibility of T.
[7]T’s mother said in evidence that she thought it had been hinted at, but that the disclosure was entirely unexpected.
Counsel for the applicant also submitted that the Court should view T’s VATE and the DVD of her evidence at the special hearing.
The Crown submitted that all of the matters on which the applicant relied were exposed in the evidence, that similar arguments as to why T’s evidence should be rejected were made in defence counsel’s closing address and that the learned trial judge had highlighted these matters in his jury charge.
Further, none of the matters relied upon by the applicant required the jury to reject T’s evidence. In particular, the submission that T’s evidence should be rejected because she was ‘argumentative and assertive’ and disliked the applicant, did not preclude the jury from accepting her as a witness of truth. The jury might well have taken the view that T’s dislike of the applicant was consistent with her account of the abuse, although of course, it did not prove that the offence occurred.
In the Crown’s written submissions, which were adopted by counsel for the Crown at the hearing, the Crown submitted that the fact that the applicant made a ‘no comment’ record of interview and gave no evidence at his trial could be taken into account in determining the strength of the case against him under the principle in Weissensteiner v The Queen.[8]
[8](1993) 178 CLR 217 (‘Weissensteiner’).
Conclusion on proposed ground 2
Before turning to the main submission made by the applicant, I deal briefly with the Crown argument that the applicant’s failure to give evidence could be taken into account in assessing the weight of the prosecution case, for the purposes of deciding whether the conviction was unsafe and unsatisfactory. Weissensteiner permits a jury to have regard to the failure of an accused to give evidence in a circumstantial case, in relation to matters which fall within the knowledge of the accused alone, about which the accused might have been expected to provided some explanation.[9] The principle has been applied by this Court in deciding whether a conviction is unsafe and unsatisfactory.[10]
[9]Azzopardi v The Queen (2001) 205 CLR 50, 73 [60]−[61].
[10]Butler v The Queen [2011] VSCA 417, [35] (Maxwell P, who dissented in the result), [145] (Ashley JA) and the cases cited at footnote 8 therein.
However, the circumstances in which a jury or an appellate court can rely on the silence of the accused were clarified by the High Court in RPS v The Queen[11] and in Azzopardi v The Queen.[12] In Azzopardi, the limitations of Weissensteiner were articulated in the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ, who said the following:
The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.[13] It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt.[14] Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial.[15]
[11](2000) 199 CLR 620.
[12](2001) 205 CLR 50 (‘Azzopardi’). See also Dyers v The Queen (2002) 210 CLR 285, 292, [9] (Gaudron and Hayne JJ).
[13]RPS v The Queen (2000) 199 CLR 620, 630 [22] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
[14]Weissensteiner v The Queen (1993) 178 CLR 217, 229 (Mason CJ, Deane and Dawson JJ) 235 (Brennan and Toohey JJ).
[15]Azzopardi (2001) 205 CLR 50, 64 [34].
Later in their reasons, their Honours said that Weissensteiner would not normally apply to a sexual assault case where the prosecution case relied largely on the evidence of the victim, since in such circumstances there is usually no basis for concluding that there was an additional fact known only to the accused, from which if the accused remained silent, any inference contributing to a conclusion of guilt could be made.
The central issue in such a case is whether the evidence called by the prosecution persuades the jury to the requisite standard of the elements of the offence. That will largely depend on the jury’s assessment of the evidence of the alleged victim. It does not depend upon the jury inferring that any event or fact took place which was not the subject of evidence. In the words of Mason CJ, Deane and Dawson JJ in Weissensteiner,[16] this type of case would not, therefore, be a case ‘call[ing] for explanation or contradiction in the form of evidence from the accused’. Nor, adopting the language of Brennan and Toohey JJ in Weissensteiner,[17] would it be a case ‘where the facts which [the jury] find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming’. The reference by Mason CJ, Deane and Dawson JJ to ‘explanation or contradiction in the form of evidence from the accused’ is important. It refers to more than bare contradiction by denial of what is alleged. The accused’s plea of not guilty stands as that denial.[18]
[16](1993) 178 CLR 217, 228.
[17]Ibid 236.
[18]Azzopardi (2001) 205 CLR 50, 73 [62] (emphasis in original).
Consistently with that view, this Court has held on a number of occasions that an appellant’s failure to give evidence in a sexual offence case, where there is no matter which lies solely within the knowledge of the accused and the prosecution case requires acceptance of a complainant’s evidence as an essential component in a finding of guilt, was not to be taken into account in deciding whether a jury verdict is unsafe.[19] The situation would of course be different where the accused’s failure to give evidence of a matter falling entirely within his or her own knowledge, justifies that failure being taken into account by a jury or by an appellate court which is considering whether the jury verdict is unsafe. For these reasons, the Crown cannot rely on the Weissensteiner principle to support the applicant’s conviction.
[19]See, eg, R v Emmerson (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Hayne and Charles JJA, 12 September 1997); ADG v The Queen [2011] VSCA 430, [49] (Bongiorno JA, with whom Maxwell P and Buchanan JA agreed).
I now turn to the broader question raised by ground 2. The law on the ‘unsafe and unsatisfactory’ ground is clear. It is not enough that the jury might have entertained a reasonable doubt as to the applicant’s guilt. The applicant must demonstrate that the jury, acting reasonably, must or ought have entertained a reasonable doubt.[20] In assessing this question, the appellate court ‘must bear in mind that the jury has the primary responsibility of determining guilt or innocence’.[21]
[20]Libke v The Queen (2007) 230 CLR 559, 596−7 [113] (Heydon J).
[21]R v Klamo (2008) 184 A Crim R 262, 272 [38].
I agree with Ashley JA that none of the matters relied upon by the applicant, taken individually or in combination, obliged the jury to entertain a reasonable doubt as to the applicant’s guilt. T was cross-examined over a period of two days. It was put to her that she had misbehaved at school, that there was conflict and argument in the household, and that she disliked the applicant and wanted him to leave. She agreed with these propositions, but denied that she had lied about the offending.
T was cross-examined extensively about her failure to complain to the counsellors and asked whether she was scared to do so and she said ‘No, not at the time that ― I just couldn’t tell them. I didn’t know why. I just couldn’t.’
She was also asked about her failure to complain to her mother and said that the applicant had threatened her when she was about five, which was around the time the offending started.[22] When cross-examined about her failure to tell her mother, she said she did not think her mother would believe her. In relation to the MSN incident, she said the applicant had told her that he was an adult and no one would believe her.
[22]The judge gave the jury an appropriate warning about the use of this evidence.
The DVD of T’s VATE and her evidence in cross-examination did not cause me to entertain doubts as to her credibility. In both, she gave considerable circumstantial detail about the applicant’s behaviour and the particular sexual acts. The detail was of a kind that a girl of her age who said that she had not had any sex education was most unlikely to have been able to fabricate. If T had been prepared to invent these allegations in order to get the applicant out of the house, it is unlikely that she would have sworn J and M to secrecy, as they said she had done, or stopped short of alleging full vaginal penetration, or fellatio rather than attempted fellatio.
I am reinforced in my view that it was open to the jury to convict the applicant on the basis of T’s evidence by the following comment made by the trial judge when he was told after passing sentence that the applicant would be appealing his conviction.
I mean I don’t know what any appeal might be based on, and I don’t know what matters the Court of Appeal might be called upon to consider, but if the Court of Appeal is called upon to consider the issues relating to the strength of the Crown case, I propose to express a view about an aspect of it, fully understanding that it’s a matter completely for the Court of Appeal if such an issue arises, and these days of course the Court of Appeal has the benefit of being able to observe the recording of the evidence, and in particular the recording of the evidence by way of special hearing. But I thought that the evidence of the complainant in this particular case was highly credible, if not compelling. I’ve made criticisms of the VATE procedure in the past concerning the manner in which questions are asked by, albeit trained, police officers during the VATE process, and my preference for questions to be conducted by counsel, however I thought in this case there were real benefits in observing the VATE, and the demeanour and manner in which the complaint was made, and if it ever became an issue I’d certainly recommend that the Court of Appeal make its own observations of the quality of the evidence.
The judge’s charge indicates that the matters on which the applicant relies were raised in defence counsel’s closing address. In the charge, the judge summarised the evidence of T and of M and J in great detail and told the jury in the plainest terms that the case depended on their accepting the truth of T’s evidence. The jury might well have accepted the evidence of both M and J that they saw a man enter the room and observed that T was upset after he left, even if they took the view that M and J had included matters about which they could not give evidence in order to support their friend, T.
The matters raised in the applicant’s submissions, including the fact that T had a motive for inventing the abuse and that if she had in fact been abused she would have complained to her mother or the professionals, were matters which it was for the jury to evaluate,[23] in light of all of the evidence and their experience of life.
[23]Cf Dyers v The Queen (2002) 210 CLR 285, 310−1 [68] (Kirby J). See also [132]−[134] (Callinan J).
For these reasons, I would refuse leave on ground 2.
Proposed ground 3
The ground which the applicant now seeks to argue relies on the deficiencies in the supporting evidence of M and J relating to the MSN incident. The applicant argues that the jury was likely to regard independent evidence supporting T as crucial, because of the matters already discussed in relation to ground 2. Because of inconsistencies between the evidence of M and J and inconsistencies between the evidence of both these witnesses and of T, any verdict based on reliance on their evidence was necessarily unsafe. While his Honour gave impeccable directions about complaint evidence and about the use of M’s evidence of hearing an implied admission, these directions left it open to the jury to regard the evidence as a coherent whole. The three accounts were so inconsistent that it was not open to the jury to treat them in that way.
The Crown submitted that this ground was not reasonably arguable. Although the judge had told the jury that they might use the evidence of M and J as complaint evidence, he also warned them in strong terms that they could convict the applicant only if they believed T’s evidence beyond reasonable doubt. He also warned them that they could not rely on the evidence of T’s complaint to M and J about the MSN incident, as truth of the fact that T was sexually assaulted by the applicant on that occasion.
The jury had found the applicant guilty of counts other than the MSN incident (count 3), despite the absence of evidence supporting T’s complaint. It would be mere speculation to conclude that the jury had convicted the applicant of all of the other counts because of the evidence supporting count 3. The jury verdict was more likely to be indicative of accepting T as a witness of truth, than any reliance on the ‘supportive’ evidence.
Conclusion on proposed ground 3
As I explained in relation to ground 2, his Honour referred extensively to matters which should be taken into account in assessing the credibility of M and J, whilst making it clear that it was open to the jury to accept only part of the evidence of any witness. Certain aspects of that evidence did support T’s evidence. Both M and J gave evidence that they had seen a man entering the room and said that T seemed distressed on the webcam. T’s complaint was made immediately after the alleged attack.
The judge foreshadowed what he would be saying in his charge, about the recent complaint to M and J and the implied admission, with no exception from defence counsel. His Honour gave a detailed direction about use of evidence of complaint about the MSN incident. After discussing M and J’s evidence and explaining the principles relating to recent complaint, his Honour said:
If you find that the complainant did make a complaint at the first reasonable opportunity you are only allowed to use this evidence for a very limited purpose. The complaint evidence is admitted only for your consideration in assessing the complainant’s credibility in that it may, if you accept the evidence, show consistency in her account of the event in evidence here, Count 3, and the kind of reaction ordinarily to be expected of a victim of such an incident as she complained of.
I will return to this topic later, but please note that you cannot use this complaint evidence to prove that the accused was present in the bedroom at the time of the complaint. The presence of the accused cannot be established by what she said about him being present to [M] or [J]. You can only use this evidence as recent complaint evidence and not for some other purpose, and whether you use it as recent complaint evidence depends on you being satisfied beyond reasonable doubt about each of the three matters I have outlined.
It is for you to determine whether the complaint made by the complainant points to the consistency of her evidence. If you find that the complainant’s behaviour in making a timely complaint is consistent with the evidence she gave in court you may take that into account when assessing the complainant’s credibility. It is for you to determine to what extent, if any, it shows consistency.
…
As I stated a moment ago both [M] and [J] gave evidence of [T’s] statements. This may make it seem like the complaint evidence is independent, that is, independent evidence of the offence because it was given by someone other than the complainant. However, this is not the case. Although [M] and [J] gave evidence about the complaint in court it was the complainant who was the source of the complaint. It was the complainant who made the complaint that the two witnesses gave evidence about it.
The evidence does not originate from an independent person. The evidence about the complainant’s statements are given by [M] and [J], therefore, cannot be used to support or confirm the prosecution case. Such supportive evidence needs to come from the source completely independent of the complainant.
So to sum up in respect of this argument concerning recent complaint Mr Shwartz argues you couldn’t get a more immediate complaint. It was clearly a complaint and was a complaint about Count 3.
The conversation related, quite obviously, he argues to what had just occurred. You should use this as going to the consistency of the complainant’s account. Mr Regan says you can’t be satisfied about what was said. The words are so vague. You couldn’t be satisfied that [T] was complaining about penetration alleged in Count 3. And that’s the thrust of his submission as I understand it.
The next topic I need to say something about is the associated topic of delay in complaining. The only complaint that could be used to support the complainant’s credibility is the alleged complaint about the MSN incident. The one I’ve just dealt with. This is the only complaint that could qualify as recent, that is, as having been made at the first reasonable opportunity.
It is a matter for you that this complaint, as I have just explained, could be used by you to support the complainant’s credibility about Count 3 - the MSN incident, as I have just explained.
With respect to all the other allegations no complaint was made in a timely fashion. There was delay in complaining.
In relation to the applicant’s alleged implied admission, to which M’s evidence related, his Honour said that ‘I emphasise, once again, that at best this argument and evidence can only go to Count 3, not to any other allegation.’
He went on to say that:
If you accept the evidence concerning the implied admission that can be used in support of the complainant on Count 3. So there’s that independent evidence available to you concerning Count 3. But even there, as I’ve explained to you, before you can convict, Count 3 you’d have to be satisfied of the truth and accuracy of the complainant’s account beyond reasonable doubt.
That’s really the position in relation to each and every count. That’s what the case is all about. There’s no other independent evidence. There’s no eye witnesses to confirm the allegations. The case rests on her allegations.
His Honour’s remarks confined the use of M’s evidence of the admission and of the complaint evidence of both M and J to the determination of count 3. His Honour also gave the jury the usual direction that they must consider the counts separately. He said:
As you know, in this trial the prosecution has brought eight charges against the accused. As I explained earlier, while these are separate matters they are all being dealt with in the one trial for convenience, and I want to remind you that you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately. It would, therefore, be wrong to say that simply because you find the accused guilty or not guilty of one charge that he must be guilty or not guilty, as the case may be, of another.
Of course the complainant’s credit is critical to each count. Finding guilt depends on you accepting beyond reasonable doubt that the complainant is truthful and accurate concerning the alleged sexual offence under consideration. Only she gives direct evidence of each of the counts under consideration.
It would also be wrong, if you do find the accused guilty of one of the charges, to reason that because he engaged in that misconduct he is the kind of person who is likely to have committed any of the other charges, as Mr Schwartz correctly told you. Each charge must be considered separately in light only of the evidence which applies to it. You must ask yourselves, in relation to each charge, whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If the answer is, yes, you should find the accused guilty of that charge. If the answer is, no, you should find the accused not guilty of it.
You will note that I said you must consider each charge in light only of the evidence which applies to it. This because some of the evidence you have heard in this case is only relevant to one charge or another. Only the complainant gives evidence of the detail of each alleged offence, and the detail she gives concerning one count is not admissible to prove another.
I repeat what I have said several times already. The alleged implied admission given in the evidence of [M] is only relevant to Count 3. If a particular piece of evidence is only relevant to one charge you may only use it when deciding whether or not the accused is guilty of that charge. You must not consider it in relation to any of the other charges.
His Honour concluded his charge with the following words:
Words of complaint made to her friends about the MSN allegation are evidence but cannot be used to prove the truth. Those words can only be used in the limited way I directed you yesterday. The only prosecution evidence that is independent of the complainant is the alleged implied admission, and that can only be used as I directed you yesterday. So, the case ultimately depends on the complainant. Whether her evidence satisfies you to the required degree concerning any count is a matter for you. That is what it is all about. It is your judgment about that that is central. The prosecution, in short, for all the reasons enumerated, say you should be well satisfied. The defence say you should not be satisfied with respect to any count. Can I just reinforce: ladies and gentlemen, if you remain unclear about any matter at all, ask for help.
On the basis of the above directions, I consider that the jury would clearly have understood the limited purposes for which M and J’s evidence could be used in support of count 3. There is no basis for concluding that the jury convicted the applicant on the counts other than count 3, or indeed on count 3, because of M and J’s evidence that T complained to them or because of M’s evidence of the implied admission.
As Ashley JA said in his reasons for refusing leave to appeal against conviction in relation to ground 2:
The jury asked, through the forewoman, a number of questions which were suggestive of a careful analysis of the evidence. The jurors viewed the complainant’s cross-examination again, and later the complainant’s VATE interview. They reached verdicts on some counts before others - which suggests a painstaking approach, on a count by count basis. Eventually, a unanimous verdict was returned on all counts. The circumstances described are consistent with the jury having conscientiously analysed the evidence in a case in which the applicant faced serious charges.
Those remarks are also pertinent to ground 3 and I agree with them.
I would grant leave to argue ground 3, but reject that ground of appeal.
For the above reasons, the application for leave to appeal against conviction is granted, but the appeal is dismissed.
Appeal against sentence
Ashley JA granted leave to appeal against sentence on both proposed grounds, which were that:
1. The sentence imposed is manifestly excessive.
2.The learned sentencing judge erred in failing to impose a sufficient gap between the head sentence and the non-parole period.
In relation to the first ground, his Honour noted that although his Honour’s detailed and careful sentencing reasons referred to the applicant’s[24] personal circumstances and past offending, he ‘expressed no conclusion about the applicant’s prospects of rehabilitation’.
[24]The term ‘applicant’ is used for the purpose of consistency, even though leave to appeal against sentence has been granted.
Ground 1
At the hearing of the appeal, the applicant’s counsel conceded that it would be difficult to assert that the individual sentences were outside the range of current sentencing practices. Nevertheless, he submitted that the total effective sentence of nine years and three months’ imprisonment produced by the orders for cumulation made by the learned sentencing judge was manifestly excessive. In support of that submission, he placed particular reliance on the following:
a.None of the acts of incest involved penetration beyond the outer lips of the vagina. It was not alleged by the victim that the applicant attempted to recruit her as an active participant in sexual activity, willing or unwilling. No episode of ejaculation was described by the victim. It is submitted that whilst the offending was serious it was at the lower end of incest offending.
b.The victim did not make an impact statement.
c.Only 4 episodes of conduct involving incest were identified. Whilst the victim described ongoing offending since the age of five this was done in extremely vague terms and sometimes in terms which were equivocal.
He also relied on a table of sentences setting out individual sentences and total effective sentences imposed by the Court of Appeal for incest between 2006 and 2010, and the comments made in FD v The Queen[25] on current sentencing practice in incest cases. In that case, the Court of Appeal held that a total effective sentence of 16 years’ imprisonment imposed on a man who had pleaded guilty to eight counts of incest, one count of attempted incest and two counts of false imprisonment against his two young daughters was manifestly excessive. The two girls were aged between seven and nine, and six and seven respectively when the offending occurred. The appellant was re-sentenced to sentences ranging from four to seven years’ imprisonment on the counts of digital and lingual penetration, to six years’ imprisonment on a count of attempted penile penetration and to a total effective sentence of 12 years’ imprisonment, with a non-parole period of 9 years’ imprisonment.
[25][2011] VSCA 8 (‘FD’).
Conclusion on ground 1
As this Court said in Hudson v The Queen,[26] comparisons between the sentences imposed in different cases must be approached with caution, because:
To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a ‘like’ case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of ‘like’ cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.
It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in ‘micro detail’, as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.[27]
[26](2010) 205 A Crim R 199.
[27]Ibid 207− 8, [32]−[33].
Nevertheless, a comparison of the sentences imposed for incest in recent years provides some assistance in deciding whether an individual sentence or a total effective sentence falls outside the range of sentences appropriate to the gravity of these offences and the personal circumstances of the offender.[28]
[28]Ibid 208 [35].
As the applicant conceded, none of the individual sentences for incest or attempted incest fall outside that range. According to Sentencing Advisory Council statistics,[29] over the five year period between 2006-2007 to 2010-2011, 96% of offenders sentenced for incest[30] received an immediate custodial sentence.[31] Terms of imprisonment for the principal offence ranged from three months to 12 years, while the median sentence imposed was four years and five months, meaning that half of the imprisonment terms imposed for that offence were shorter than four years and five months, and half were longer.[32]
[29]Sentencing Advisory Council, Sentencing Snapshot No 134, Sentencing Trends in the Higher Courts of Victoria 2006-07 to 2010-11, Incest (August 2012) (‘Sentencing Snapshot’).
[30]The figure was 100% for offenders in the same age group as the applicant: ibid, Figure 5.
[31]Sentencing Snapshot, Figure 2.
[32]Ibid, Figure 6.
The same statistics show that the length of total effective sentences imposed ranged from three months to 22 years and five months, with a median total effective sentence of seven years.[33] The limitation of these statistics is that they do not differentiate between offenders who pleaded guilty to the offences and those who did not. Nor did the table of sentences submitted by the applicant make this distinction.
[33]Ibid, Figure 9.
Further, in all of the cases cited in FD, except one, the appellant pleaded guilty.[34] Despite the factors relied upon by the applicant, neither the Sentencing Snapshot nor the survey of cases in FD support the claim that the total effective sentence imposed in this case was manifestly excessive.
[34]The Court referred to R v CVP [2002] VSCA 193; NJD v The Queen [2010] VSCA 84; OAA v The Queen [2010] VSCA 155; GEM v The Queen [2010] VSCA 168; CF v The Queen [2010] VSCA 275; DP v The Queen [2011] VSCA 1 (all of which involved guilty pleas) and to GJW v The Queen [2010] VSCA 193, where the appellant was convicted after a trial.
With the exception of count 8 (which related to the applicant touching T’s bottom and saying ‘yum’), the offending involved serious abuse, occurring over a period of four years when T was between eight and approximately 12 years old. The incest counts occurred on four separate occasions over this period. T was sexually abused by the applicant over what amounted to about a third of her life at the time of the last offence. On the first occasion, T said the applicant had told her he would come back in a couple of days. On each occasion, she must have feared that the sexual acts would be repeated, as in fact occurred.
Despite the absence of a victim impact statement from T, the sentencing judge correctly acknowledged that T and her mother would have suffered considerably from the offending and its effect on T was likely to be long-lasting. Although the counts were not representative counts, the fact that the incest offences were repeated gave the applicant ample opportunity to reflect on the likely effect of his behaviour on his stepdaughter. As is almost inevitably the case with incest, the applicant’s offending involved a gross breach of trust for which he showed no remorse. Count 8 constituted a breach of trust which was not inherent in the nature of the offence.
The applicant was convicted after a jury trial, so that he was not entitled to rely on the utilitarian effects of a guilty plea to reduce the sentences for incest and attempted incest which would otherwise have been imposed on him. The trial judge acknowledged that the applicant had pleaded guilty on the pornography count and said he would have sentenced him to 12 months’ imprisonment on that count if he had not done so.
When Dr Ruth Vine assessed the applicant for the purposes of providing a psychiatric report, he continued to deny the offending. Dr Vine did not recommend treatment for sexual offending, because of the applicant’s lack of insight. His Honour carefully explained the factors he had taken into account in mitigation, including the applicant’s difficult childhood, his intention to take up educational opportunities offered to him in prison, and his anxiety and depression.
The applicant fell to be sentenced as a serious sexual offender on counts 3 to 9. Under s 6E of the Sentencing Act 1991, it is presumed that a term of imprisonment imposed on a serious sexual offender for a relevant offence will be served cumulatively on the other sentences of imprisonment imposed on that offender. Although s 16(1) of the Sentencing Act1991 applied a presumption of concurrency to counts 1 and 2, the judge was justified in imposing one year’s cumulation on the base sentence in relation to each of those counts, which arose out of offending occurring on different occasions.
The order for cumulation of one year of the four years and six months term of imprisonment imposed for the act of digital/vaginal penetration covered by count 3, which occurred on a third occasion, and for three months cumulation of the 9 months’ term imposed on the child pornography, were quite modest. His Honour correctly took account of the fact that counts 4, 5 and 7 all occurred on a single occasion, by ordering only six months cumulation of the sentences imposed on counts 5 and 7. For these reasons, I consider that the total effective sentence was well within the range of the sentence which could be imposed for these offences.
Accordingly, this ground of appeal fails.
Ground 2
I now turn to the second ground of appeal.
Counsel for the applicant submitted that the non-parole period amounted to 78% of the head sentence and that his Honour’s failure to give any reasons for imposing a non-parole period which exceeded 75% of the head sentence, invited scrutiny.[35]
[35]He relied on R v Detenamo [2007] VSCA 160, [23]−[28]; R v Tran and Tran [2006] VSCA 222 [26]−[28]; Romero v The Queen (2011) 206 A Crim R 519, [25].
The Judge’s Report provided by the sentencing judge made the following comment on this matter:
A number of factors bearing on the appellant’s prospects for rehabilitation would have influenced the non-parole period I fixed. As best I can recall, the primary factors, all of which I thought were common ground during plea submissions, would have been: the absence of remorse; the absence of insight by the appellant into his offending; the relatively lengthy period of the offending; the possession of child pornography demonstrating a sexual interest in female children beyond the appellant’s sexual interest in the complainant; the fact that no sexual rehabilitation program was recommended by Dr Vine; the absence of any submission identifying evidence of specific rehabilitative potential and the presence of some criminal history.
All of these issues were discussed in the sentencing remarks, although they were not specifically linked to the fixing of the non-parole period.
The relevance of the applicant’s possession of child pornography as demonstrating a more general sexual interest in female children was discussed during the plea hearing, where the following discussion took place between the sentencing judge and the prosecutor:
MR SHWARTZ: If your Honour pleases. The evidence also displays and demonstrates that the prisoner had a clear sexual interest in the prepubescent state or of girls which is evidenced by his possession of the pornography. I’ve not dealt with the question of whether or not that in any way exacerbates the nature of the offences of which he was convicted, or whether in fact it’s an aggravating feature, but it’s a matter which your Honour would be entitled to look at in conjunction with the conviction itself.
HIS HONOUR: I think I’d be focussing on it in terms of whatever Mr Regan might want to say to me about rehabilitation prospects, the offending that I’m required to sentence him before goes beyond his relationship with this single complainant.
Unfortunately, this issue was not really addressed by defence counsel, who sought to distinguish the pornography charge and the incest charges by saying T was not aware of the pornography and it was not used for ‘grooming’ purposes.
At the plea hearing, the applicant’s counsel said little about his prospects of rehabilitation. As to the applicant’s prior criminal history which, though extensive, did not include other sexual offending, counsel said that:
All I can submit, your Honour, respectfully, is that 15 years had elapsed before the commencement of the offending on the presentment and that the - that, which is in the record, is not of a character of the kind that he is now, standing before your Honour.
It was also submitted that the applicant was looking forward to engaging in educational courses offered in prison, although this was also not linked to any prospects of rehabilitation.
There is no single correct non-parole period. In Hili v The Queen,[36] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in relation to federal sentences that statements about the proportionate relationship that should exist between the minimum time that is to be served in prison and the length of the head sentence ‘will mislead if they suggest that the offender must demonstrate some special circumstance to warrant departure from a set, mathematically calculated, relationship between the time to be served in custody and the head sentence.’[37] The fixing of a non-parole period requires consideration of the same factors as the fixing of the head sentence.
[36](2010) 242 CLR 520.
[37]Ibid 532−3 [38].
The same principle applies to State offences. In R v Tran and Tran,[38] Redlich JA said:
The Sentencing Act1991 requires that the non-parole period be at least six months less than the terms of the head sentence. Beyond that legislative direction there is no requirement at law which calls for a set ratio between the head sentence and the non-parole period. The Australian Law Reform Commission recently reported that ‘case law recognises that the non-parole period is generally set at 60 to 66.6% of the head sentence with the non-parole period increasing to 75% in the worst category of case’. This accords with the observations of Callaway, JA in R v Bolton & Barker that ‘[I]n the majority [of cases] the proportion is between two-thirds and three-quarters but both shorter and longer periods are found.’
The minimum term is recognised to be of benefit to the offender providing the offender with a basis for a hope of earlier release and in turn an incentive for rehabilitation. When a minimum term is fixed, the prisoner’s punishment is mitigated in favour of his rehabilitation through conditional freedom, when appropriate, but only after the prisoner has served the minimum term that justice requires having regard to the circumstances of the case. As the benefit of the minimum term is for the purpose of the offender’s rehabilitation, the sentencing judge’s assessment of the offender’s prospects of rehabilitation will have a significant bearing on the minimum term to be fixed.[39]
[38][2006] VSCA 222.
[39]Ibid [27]−[28] (citations omitted).
Although it would have been preferable for the judge to explain his reasons for fixing a non-parole period of greater than 75% of the head sentence, I do not
consider that the non-parole period was excessive. Having regard to the seriousness of the offending and the applicant’s lack of insight, the judge was entitled to fix the non-parole period which he did.[40] He was also justifiably pessimistic about the applicant’s rehabilitation prospects. I consider that ground 2 fails.
[40]In Wallace v The Queen [2012] VSCA 114 [16], this Court suggested that the use of phrases such as ‘longer than usual’ in describing a non-parole period is unhelpful.
For these reasons, I would dismiss the appeal against sentence.
BONGIORNO JA:
I agree with Neave JA.
WHELAN AJA:
I also agree.
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