MAC v Tasmania
[2018] TASCCA 19
•15 November 2018
[2018] TASCCA 19
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: M A C v Tasmania [2018] TASCCA 19
PARTIES: M A C
v
STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS
v
M A C
FILE NOS: CCA 3340/2017
CCA 3343/2017
DELIVERED ON: 15 November 2018
DELIVERED AT: Hobart
HEARING DATES: 13 April 2018 (CCA 3343/2017)
29 August 2018 (CCA 3340/2017)
JUDGMENT OF: Blow CJ, Geason J, Martin AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – Appellant convicted of rape but acquitted of indecent assault – Separate incidents – Stronger evidence on rape charge.
MacKenzie v The Queen (1996) 190 CLR 348; DJK v Tasmania [2017] TASCCA 17, referred to.
Aust Dig Criminal Law [3478]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Materiality and cogency – Evidence directed to credit – Evidence of prior inconsistent statement by complainant as to rape – Evidence lacking credibility – Likelihood that the appellant and his trial counsel were aware of the evidence at or before trial.
R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417, referred to.
Aust Dig Criminal Law [3502]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Rape of intoxicated 18-year-old woman by mother's partner in their home – Sentence of 3 years' imprisonment with non-parole period of 18 months manifestly inadequate.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appeal CCA 3340/2017
Appellant: K Baumeler, A McKenzie
Respondent: L Mason SC
Appeal CCA 3343/2017
Appellant: L Mason
Respondent: K Baumeler, A McKenzie
Solicitors:
Appeal CCA 3340/2017
Respondent: Director of Public Prosecutions
Appeal CCA 3343/2017
Appellant: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 19
Number of paragraphs: 214
Serial No 19/2018
File Nos CCA 3340/2017
CCA 3343/2017
M A C v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v M A C
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
GEASON J (Dissenting in Part)
MARTIN AJ
15 November 2018
Orders of the Court
Appeal CCA 3340/2017
Appeal dismissed.
Appeal CCA 3343/2017
Appeal allowed.
Sentence of 3 years' imprisonment with non-parole period of 18 months quashed.
Respondent sentenced to 5 years' imprisonment with effect from 20 September 2017.
Respondent not to be eligible for parole until he has served 2 years 6 months of that sentence.
Serial No 19/2018
File Nos CCA 3340/2017CCA 3343/2017
M A C v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v M A C
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
15 November 2018
I agree with the orders proposed by Martin AJ, and with his Honour's reasons.
File Nos CCA 3340/2017
CCA 3343/2017
M A C v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v M A C
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
15 November 2018
There are two appeals before the Court. The appeal against conviction is without merit and I join in the order dismissing the appeal for the reasons given by Martin AJ.
The other appeal is an appeal against sentence. The appeal is brought by the Crown. It asserts manifest inadequacy in the sentence imposed by Brett J.
The appellant was found guilty by a jury of a single count of rape contrary to s 185 of the Criminal Code. He was sentenced to 3 years' imprisonment backdated to the time he was taken into custody. An order was made that he be eligible for release on parole after serving half that sentence. His name was placed on the register pursuant to the Community Protection (Offender Reporting) Act 2005 for a period of 8 years.
At trial the complainant had given evidence that she had awoken to the appellant having intercourse with her. She said that she had dropped in and out of consciousness before becoming upset, at which point the appellant allegedly ceased having intercourse with her, told her she was having a nightmare, and then left the bedroom. The appellant's evidence at the trial was that he did not have intercourse with the complainant with or without her consent. He has maintained his innocence throughout.
The factual findings made by the learned sentencing judge which informed his sentence were these:
1The appellant's motives in assisting the complainant to his bed were innocent.
2The appellant had frequently acted towards the complainant in a manner appropriate to his role as a friend and step-father.
3He had been supportive of the complainant and the complainant's family in relation to the breakdown of his partner's marriage and her on-going difficulties with her former husband (the complainant's father).
4He was otherwise a person of good character.
5His prior convictions were not of significant relevance to the crime. Specifically in that respect, his Honour determined that those matters did not detract from the positive aspects of his character "demonstrated by your industry and your relationship to other people including the members of this family".
There was a proper basis for those findings, and they are relevant sentencing considerations.
The principles applicable to an appeal against sentence are frequently repeated in this Court and others. All roads lead back to the decision of the High Court in House v The King (1935) 55 CLR 499, where the Court identified two kinds of error; specific errors of principle, and cases in which there has been some misapplication of principle "even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64, 207 CLR 584 at [58]. This case involves resort to the second type of error. As such no specific error is pleaded. Rather it is the appearance of markedly different outcomes between cases which forces the conclusion that there must have been some misapplication of principle.
The analysis will include a consideration of comparable sentences. In DPP v Dalgliesh(a pseudonym) [2017] HCA 41, the Court, having said that sentences are not binding precedents, restated the principle articulated in Hili v The Queen [2010] HCA 45, 242 CLR 520 that history does not establish that a particular range is correct, and nor does it establish that upper or lower limits to the range are the correct upper and lower limits. Relevantly, in my view, the Court stated that an examination of sentences may inform the task of sentencing, but "such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the Court" [83].
The State provided the Court with a table of sentences imposed for single crimes of rape between 2005 and 2017. That table revealed a sentencing range from 6 months' imprisonment wholly suspended to 6 years' imprisonment. The Sentencing Advisory Council Report "Sex Offence Sentencing: Final Report No 4" published in August 2015, disclosed a median sentence of 37.5 months during the period 2008 to 2014.
The sentence imposed here was, self-evidently, within the established range. I do not elevate that observation to the status of a conclusion to this appeal because that would overlook the High Court's comments in Dalgliesh (above). At [84] the Court said, "having accepted that a significantly higher sentence was warranted in the circumstances of the case 'but for' current sentencing practices, the Court of Appeal was not correct to end its task by treating those current sentencing practices as a complete answer to the question whether the sentence imposed was manifestly inadequate. It was required to determine that question and to sentence, according to law". To say a sentence is too light or too harsh is to adopt an approach which commences with a correct range, or an upper or lower limit to such range, which approach goes beyond its purpose if it is used to "fix boundaries": Dalgliesh (above) at [83].
Ultimately it is a matter which requires advertence to the particulars of the case, which includes the circumstances of the offending, the need to vindicate the victim, to punish the offender and deter others. It is not detached from the circumstances of the offender: Elias v The Queen [2013] HCA 31, 248 CLR 483. In that case French CJ, Hayne, Kiefel, Bell and Keane JJ said "the administration of the criminal law involves individualised justice". And again in Dalgliesh (above) at [49]: "the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case" [my emphasis].
The process of instinctive synthesis in which a sentencing court engages will result in a sentence which is unimpeachable where it gives weight to the relevant sentencing principles individualised to the circumstances so as to result in a "just sentence on an offender". The sentencing range is merely "a yardstick"; It will "illustrate (although not define) the possible range of sentences available": R v Pham [2015] HCA 39, 256 CLR 550 at 560 [29]. If I may so express it, it is a starting point not the end game.
In my view the learned sentencing judge has approached the matter correctly.
Whilst I unreservedly accept that the protection of vulnerable young women is a matter of high importance, and that men in trusted positions must expect that abuse of their position of trust against vulnerable members of the family will be met with condign punishment, I find myself unable to join in the conclusion that the sentence which was imposed was so manifestly inadequate as to be unreasonable or plainly unjust. In my view, the State has not demonstrated error of the second type referred to in House v The King (above).
The appeal against sentence should be dismissed.
It is suggested that the sentences for single crimes of rape in this Court appear to be low compared to other jurisdictions. Just how different the sentences are has not been the subject of evidence and submissions, and I would prefer to refrain from expressing any view. Whilst it is useful for the Court to be aware of sentencing patterns in other jurisdictions, sentencing is a process of individualised justice. As such I cannot, with respect, join in a generalised indication that, in future, offenders can expect to receive lengthy terms of imprisonment which are longer than the average periods imposed in the past.
File Nos CCA 3340/2017
CCA 3343/2017
M A C v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v M A C
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ
15 November 2018
Introduction
MAC (the appellant) was charged on indictment with indecent assault and rape. Both charges involved the same complainant. A jury found the appellant not guilty of indecent assault, but guilty of rape contrary to s 185(1) of the Criminal Code.
On 8 November 2017 Brett J imposed a sentence of imprisonment for three years and ordered that the appellant be eligible for release on parole after serving one half of that sentence. In addition, pursuant to the Community Protection (Offender Reporting) Act 2005, his Honour made an order that the name of the appellant be placed on the register of sexual offenders and that the appellant comply with the reporting obligations under that Act for a period of eight years.
Initially the appellant appealed against his conviction on the sole ground that the verdict of guilty was "unsafe and unsatisfactory in all of the circumstances". The Director of Public Prosecutions (the Director) appealed against the sentence of three years' imprisonment on the sole ground that "the learned judge erred in fact and/or in law in that he imposed a sentence that was manifestly inadequate in all the circumstances of the case".
In written submissions filed on the appeal, the appellant made an application under s 404 of the Code "for an order for a venire de novo". In substance the appellant sought leave to adduce "fresh" evidence which, the appellant submitted, demonstrated that a miscarriage of justice had occurred. Subsequently the appellant sought leave to add a ground of appeal to assert a miscarriage of justice had occurred "in that fresh and credible evidence not available at the trial is now available". Leave was granted.
For the reasons that follow, in my opinion the appellant's appeal against his conviction for the crime of rape should be dismissed. Further, in my view the Director's appeal should be allowed and the sentence of three years' imprisonment set aside. I would impose a sentence of five years' imprisonment and order that the appellant be eligible for parole after serving half of that sentence.
Background
At the time of the events in March 2013 the complainant had recently turned 18. The appellant was 27.
The complainant came to Tasmania with her family at the age of 7 years. Subsequently her parents separated and she lived with her mother and four siblings. At the time of the events the complainant's older brothers had moved away from home.
When the complainant was aged about 10 or 11, the appellant and the complainant's mother formed a relationship and the appellant moved in with the family. The complainant gave evidence that in her early teens she and the appellant did not speak much and "didn't really get along", but at that time she had a good relationship with her mother.
According to the complainant, when she was about 16 her relationship with the appellant began to change. He made comments about how beautiful she was and that any man would be lucky to have her. At that time she felt quite comfortable and regarded his behaviour as normal. However, as she was moving towards 17 and going out with friends, the complainant felt uncomfortable with the behaviour of the appellant. He said things like, "if I wasn't with your mother then I would take you home". He made physical contact with her to demonstrate how he would approach her in a club situation. The physical gestures, such as occasionally grabbing her by the waist or slapping her on the behind, made the complainant feel uncomfortable. She described the appellant as "very inquisitive about her personal life", and said he would question her about her "dating life".
Notwithstanding that the complainant felt uncomfortable, she sought advice from the appellant about her personal life. Asked how she would class her relationship with the appellant at about the time she was 17, the complainant said:
"I think I'd looked up to him a lot. I think he was still like a father figure to me."
The complainant's youngest sister gave evidence of her observations of the relationship between the complainant and the appellant, including hearing an inappropriate comment by the appellant to the complainant (T262-263):
"All right. I just want to talk to you about your relationship with [the appellant]. Just bear with me. It's correct to say that you and [the appellant] didn't have a close relationship. Is that correct?.....Yes.
Okay; but [the complainant] and [the appellant] did appear to have a close relationship?.....Yes.
Were there any occasions that you observed as between [the appellant] and your sister where you heard or saw anything that you would regard as inappropriate being said or done to [the complainant] by [the appellant]?.....Done to [the complainant] – yes. Just within the – with that time‑frame or‑
Well, I don't know. You tell me, when are you talking?.....Well, there's things when we ‑
2012, 2013 I'm talking about, just generally speaking?.....Okay. Yeah. Yeah, he would – sorry. I've heard him make comments to [the complainant] that I found extremely inappropriate no matter how‑
Can you give us an example?.....Yeah. So he said to her – he asked her, 'When are you going to give me that blow job?'
Okay. Can you remember the context in which that was said?.....I'm not too sure. We were in the kitchen. [The complainant] was drinking. [The appellant] was there. I don't know if he was drinking or not. He may have just been cooking or something.
Okay; and do you remember when in the context – if we use it when mum was away or when she wasn't away – are you able to say when that was?.....It was when mum was away.
Anything else that you remember as to comments or general conduct?.....Not any comments that I found inappropriate apart from that one towards [the complainant]."
The complainant's close friend Ms B gave evidence of her observations concerning the relationship between the appellant and the complainant (T311-312):
"Now, were you spending much time at [the complainant's] address with her over that period of time – late – well, 2012, 2013?…..A lot, mm, mm.
And can you recall any occasion when you observed any interaction between [the appellant] and [the complainant] that made you uncomfortable?…..Yes.
Firstly, is there – can you recall observing any conduct, any behaviour that concerned you?…..Yes.
Can you describe what that was?…..For me, he would get a little bit too close and cosy with her.
And what, what do you mean by that?…..There were times where he would grab her around the shoulders, like, while she was sitting down and just sort of hold her around the neck and around the shoulders, like embracing her, I suppose.
Okay. And you've, you've got your arms around your own – the front of you.....Yes.
Where would he be standing?…..Behind.
Okay. Would you see her reaction to that?…..Yes, she wasn't comfortable.
Okay. And would – can you recall ever hearing anything uncomfortable, that made you uncomfortable?…..Yes.
What was that?…..When he would either take us to Macca's, it was either going to McDonalds or getting alcohol, he'd turn to her and said, 'You owe me a gobby'.
Okay. Well, you say, 'You owe me a gobby', can you tell us what you mean by that?…..As in her performing oral sex on him.
Again, what was her response when he would do that?.....Not comfortable."
The appellant gave evidence that he and the complainant had a "great relationship" and that she would come to him for "everything and anything" (T367). He agreed that he made comments about the complainant's physical appearance, but said it was not in a sexual manner. "It was more of a manner of encouragement, an affirmation to restore confidence so to speak, yes" (T373). He made the same comments to everyone and it was "nothing out of the ordinary". The appellant denied possessing a sexual interest in the complainant (T373) and said he did not find her attractive (T427). Physically their contacts were normal family interactions such as hugs or an occasional kiss goodnight on the cheek (T379). The appellant agreed in cross examination that it was a relationship of "mutual trust" (T400).
The appellant denied suggesting that the complainant should perform oral sex on him. He said that he had never used the word "gobby" (T374).
The complainant began drinking alcohol when she was 17. She was in years 11 and 12 at school. Her friends called her "two cruiser loser". She said the appellant appeared to be very interested in training her to handle alcohol. He would bring alcohol home on school nights and they would drink together. At this time the appellant was working at several pubs and clubs.
The complaint's youngest sister gave evidence that when she was living in the home after their mother had travelled overseas, the complainant often drank in the house with her friends, but she was not sure how many times the appellant was present (T260). On one occasion the complainant told her the appellant would get her drinks to see how she handled it.
Ms B said that as early as 2012 she, the complainant and other friends, would drink at the complainant's house and the appellant would also consume alcohol with them. According to Ms B, the alcohol was purchased by the appellant (T310 and 311).
During cross examination Ms B conceded she did not have a recollection of the appellant picking up a glass and drinking from it. She added that she did not have a recollection of the complainant picking up a glass of alcohol and putting it to her mouth. In that context she agreed that she had "supposed" that the appellant was drinking because everyone in the group was drinking. When it was put to her that she supposed the appellant was drinking because he was amongst others who were drinking, she added "and the fact that he bought us the alcohol" (T322).
The appellant agreed he supplied alcohol to the complainant and spoke of the circumstances involving a "merit system"(T376–378):
"Now the drinks that you did provide to [the complainant], so you don't – let's focus on the house for a start – with – at ... – did you supply alcohol to [the complainant]?…..Yes, I did.
What alcohol did you supply to her?…..Vodka, Trevi, Omni, Midori, Tequila at one stage – I think it was on the one occasion, and that was – that wraps it up.
So Tequila on one occasion?…..Yes.
Now, the alcohol – how did it come to be provided to her?…..Well, we had a – well, I created a system where – it's a merit system – where I wanted them to understand the value of money so I would say, 'If you do this, you will get this'. I did it with the boys, the youngest daughter, [C], and [the complainant] and so on and so forth, so I'd ask them to clean the house. If they wanted to go somewhere, they'll say, 'Oh, you know, I'm going somewhere. I need some money'. I said, 'Well do something around the house and I will give you this money', so sometimes–
Just focus on [the complainant] now, so what arrangement did you have, if any, with her?…..Well, sometimes she'd ask me that the money I was going to give her, she used that money to purchase alcohol for her because she was having people around the house.
And you would purchase it for her?…..Yes, I would.
Okay. And how would it be purchased?…..Sometimes I'd go, on my way back from the kitchen, I'd go to the bottle shop and purchase the drink.
In the kitchen, which kitchen?…..The Saloon Bar or Irish Murphy's.
Right. So not your kitchen in your house?…..No, no, no, sorry, no, just from work. Sorry.
And you'd purchase it from the bottle shop, I presume, at work?…..Yes, the bottle shop.
And then you'd bring it back to the house?…..That's correct.
Okay. Did you ever take one of [the complainant's] friends, or [the complainant] to the bottle shop to purchase alcohol with them?…..Not at any point, no.
Okay. So the arrangement was you'd bring it back from work?…..Yeah. It wasn't, it wasn't all the time. It was very rare, on rare occasions that that would happen.
Now did you consume alcohol with them?…..Oh, look, I might have over the time, yes, but probably I'd say very isolated instances, yes.
How many occasions do you say you drank with [the complainant]?…..I'd say I drank with her would be two and me having alcohol with her in a room, probably another once or twice, yes.
So it was not a frequent thing?…..No, not at all. I'm not bit drinker. I work a lot and I have to stay sober for my job and I'm always driving everywhere, so no.
Okay. Now did you ever supply Bacardi or Bacardi 151?…..No.
To [the complainant]?…..No.
Did you ever drink with [the complainant] Bacardi to the point where she became so drunk that she was hung-over the next day?…..No.
Now the alcohol – the occasions when you drank with – you've said that there were times, maybe once or twice, where you were drinking around when the others were there, can you recall what you were drinking?.....I drink Scotch and I drink Guinness, those are my drink of choice and the times that I'm talking about are, maybe sometimes when I'd knock off from security work in the morning, while I was – while she was waiting for me to give her a lift home, I'd have a knock-off which was, I had one drink as a knock-off, it could have been a Scotch or a Guinness.
So those drinks that you're describing, they're – are they consumed at the house or somewhere else?.....At ... and with my security friends, with [the complainant] in the room waiting for me to take her home, yes.
Okay, and on occasion her friends would be with her or friend?.....Aah yes, [E] mostly and sometimes [D].
Okay, now, moving back to alcohol at the home?.....Yes.
Can you tell me how many occasions you drank alcohol with [the complainant] at the home?.....Twice.
Twice?.....One of those occasions was her 18th birthday party. I'd organised a birthday party for her, downstairs in the garage and Mum and I and [the complainant] – Mum's favourite drink is Tequila, so, we all had a couple of shots of Tequila in the kitchen bench area and then we had, I think, about 50 or 60 kids around the house.
So once was her 18th birthday?.....Yes, and the other one was when her mother returned ... and we all went out as a family, but before we went out, we had a couple of drinks before we went out that night, yes.
So that's after [S] had returned ..., so that's after April, 2013?.....Yes, that's correct."
During cross examination the appellant denied the suggestion that there were occasions when he would sit and drink with a group in the house which included the complainant (T402).
The complainant gave evidence that on one occasion after drinking alcohol, she had no memory of going to bed and woke in her bed the next morning. She was naked. She had been drinking with the appellant and asked him what he had done or if he had put her into bed. The appellant told the complainant that she had been vomiting and he had to put her in the shower. He said he got rid of her clothes because she had vomited on them.
The appellant denied ever putting the complainant in the shower and cleaning her off; he also denied telling the complainant that he had done so (T404).
According to the complainant, during 2012 when the complainant was aged 17, the appellant gave her massages on her legs, back and arms. Usually the complainant would ask for a massage and the massages occurred on the lounge. The complainant gave evidence of an occasion when the massage was occurring while she was on her bed and the appellant asked her to remove her bra. The complainant was uncomfortable, but she removed it. She said the appellant's hands would often reach around from the back to the front, close to her breasts, but they would never reach her breasts. On this occasion the appellant massaged the back of her legs and his hands went upwards and towards her inner thigh. She said "what are you doing?" and he ceased massaging her.
The complainant gave evidence of a second occasion on which the appellant massaged her while she was lying on her bed. It was in respect of this second occasion that the appellant was charged with indecent assault, but acquitted. The substance of the complainant's evidence was as follows (T22–24):
"Now, you mentioned the massage in your bedroom before you moved out of the house. Can you recall any other massages after you returned to the house?.....Yes. So there was the last occasion. It was – he was massaging my body again and I‑
Sorry to interrupt you but can you just tell the jury how it came about – do you remember where you were?.....So I was on my bed again and he was massaging my – the back of my legs and his hands moved upwards. I was falling asleep so I didn't – I wasn't as aware and his hands went in between my bike shorts and his fingers were just touching my private parts.
All right. So just need to go back a moment. So can you remember generally speaking when that incident occurred, so how long after you had returned home it was?.....I would say that was February.
Okay; so February 2013?.....Yes.
Is that a guess or have you got any idea really apart from sometime earlier in the year?.....I recall telling my friend, [E], in February.
All right?.....Quite like recent to the date it happened.
Okay; and that's how you worked out‑?.....Yes.
You indicated that you were on your bed?.....Yes.
So you have told the jury that on a previous occasion there had been a massage on your bed. Apart from the two occasions you have just told us about were there any other times when the massage was on the bed?.....No, that was – there was only two times and that was the final time.
Okay; and you indicated – you have told the jury that you felt like you were dozing off?.....Yes.
Can you explain to them what you could feel happening? Could you just tell us again how the things unfolded?.....So I felt his fingers touching my privates and I quickly got up and said, 'What are you doing?' and he responded that his hand slipped.
You've given a description of what you were wearing. Can you explain to the jury how it is that the – how it is that the massage started? I think you said that he was massaging your legs?.....Yeah.
So can you just explain to the jury the movements that he was making with his hands before you felt him touching you on your private parts?.....So his hands were stroking the backs of my legs and they would move inwards and then make their way up my inner thigh and through to underneath my bike shorts and underneath my underwear.
When you talk about your private parts what are you talking about?.....My vagina.
Okay; so was there – when you said he touched your private parts was there any material between‑?.....No.
No. Okay; and can you remember feeling what part of his body was touching?.....His fingers.
You've indicated that you were dozing off. What was it that you first remember – or can you say whether you fell asleep or not I suppose is what I'm asking?.....I wasn't asleep. I was very close to it.
Okay. Now you said that he said words to the effect of 'sorry my hand slipped' or something like that?.....Yes.
What was the reaction between the two of you at that point in time?.....Just at the moment?
Yeah did you say anything else when he said that?.....No just stopped and there was – there was no I guess exchanging of words after that.
Okay so what did you do?.....Um I confronted my friend about it – confided in her – confided in her.
Yeah?.....Yeah so I explained to her what happened.
Okay. And what – how was any interaction between the two of you – between [the appellant] and yourself after that?.....It was very awkward yeah. There was no real interaction."
According to the complainant, there was a change of the level of awkwardness between her and the appellant after she confronted him. She gave the following evidence (24–25):
"Okay. And as far as you and [the appellant] were concerned did the – the level of – of awkwardness I suppose between you and he after that incident did that change at all?.....Only when I confronted him about what had happened.
And when was that do you think, how long after the incident?.....Um I'm not quite sure how long after.
Well what happened when you confronted him?.....Uh so he just said that he didn't mean to do it. I just asked him if he was sure and he said yes his hand genuinely slipped and it would never happen again so I felt reassured that he didn't mean to do it.
Okay. Again can you remember the circumstances in which you spoke to him about it, where were you and what–?.....So we were sitting in his car just in the ... carpark.
Right so who – who raised the issue?.....I raised the issue yeah.
Okay and what did you say to him?.....Um I just said to him that I was feeling a bit awkward and I just wanted to make sure that what he did it wasn't intentional and I just wanted to get back to having a good relationship with him.
Okay. And did you go into the detail at all about what had happened?.....Yes.
Okay. And that's when he answered you?.....Yes."
The appellant gave evidence that he massaged the complainant on only three occasions. First in the front lounge room, secondly, in the hallway and, thirdly, in the kitchen/lounge area (T382). However, the appellant denied asking the complainant to remove her bra or attempting to touch her on the breasts. He denied attempting to touch the complainant's vagina or placing his hands in a manner moving towards her vagina.
During cross-examination the appellant denied that the complainant said he had gone too far or said "look, what are you doing?" (T428). He said she never appeared uncomfortable. Nor did she say anything to suggest she was uncomfortable or that he had taken the massage too far (T429). Similarly the appellant denied apologising for saying that he had slipped (T433).
In 2012 the relationship between the complainant and her mother deteriorated and she moved out of home. The complainant described the relationship with her mother at that time as "non-existent". Over the next four months there was no contact between the complainant and her mother, but she maintained contact with the appellant who often came to her residence where she cooked for him and her brothers. Sometimes the appellant would visit on his own and they would "just talk". During these discussions the appellant was very persistent that the complainant's mother wanted her back, and said the complainant should return to the house. It was very late in 2012 when the complainant returned to live in the family home.
Shortly after the complainant returned to the family home, her mother left on a trip overseas which was expected to last approximately one month. She stayed away for a number of months. The complainant lived in the home with the appellant and her younger sister who was then aged about 15 years.
When the complainant had just turned 18 and had left school, she was not working and did not know what she wanted to do. She began to drink heavily. There were occasions when she would come home in an extremely intoxicated state. The complainant's younger sister explained what would happen on those occasions (T261):
"Can you explain to the jury what you would do, what would happen?…..So when she would come home and she was drunk and couldn't look after herself or would, would be a mess, I would put her to bed, give her water, get her a bucket or sometimes just put her on the toilet or something, yeah.
All right. I'm just going to explain that a bit. So you'd put her bed, I think you said when she couldn't look after herself – what do you mean by that?…..Oh, just when she, like, if she was fumbling around or she – I don't know how to explain that.
Well, you said you'd put her to bed. I take that to mean that you would assist her to get into bed?…..Yeah. I'd just, like, if she was, if she was – what's it called – like wobbly, I'd put her over my shoulder and, like, her hand over my shoulder and take her to bed, so, yeah.
And when you – you'd take her to bed – would you do – would you do anything to her before she got into bed, like would you change anything or change her clothes, or–.....No.
No......No, I, um, yeah, that's – no, I didn't change her clothes. I'd get her water and a bucket and, yeah.
Okay. You say you'd get her a bucket. I'm sure the jury can have a pretty good idea about why you'd do that, but can you just explain what, why, why you would do that?…..Why I'd get her a bucket? In case, in case she needs to vomit.
Were there any times when she – well, I presume it's because she was saying or doing something that indicated to you that she might need it?…..Sometimes she'd just say that she needs to vomit but she, like, she wouldn't and I'd get her a bucket – I just got into a routine of just getting her a bucket anyway, but–
I suppose that's the next – sorry, the next question then is – do you ever remember her actually vomiting in the bucket or having vomit in the bucket the next day, or anything like that?…..Generally the next day, when I'd take the buck – when I'd go into her room and I'd, like, check on her and stuff, yeah, there wouldn't be – there wouldn't be, like,
She wouldn't–.....No.
And you've also said that you'd put her on the toilet – what do you mean by that?…..When she was vomiting and leaning over the toilet, I would hold her hair–
Okay. Look after her?…..Yeah.
You say you put her to bed. What, what do you mean by that – where would you put her to bed?…..In – I'd – so I'd help her, like, I'd have her – have her hand and support her, her weight, so that she wasn't falling and I'd take her to her room and just, like, lay her, lay her on her bed.
And on the occasions that you would put her to bed and you leave the bucket and make sure that she was okay, would there be any occasion or reason for you to, to get back up again after – come back to check on her, or–.....Yes. Sometimes she'd call out to me. She would ask me to get – like, whether it was to get her water if I hadn't gotten her water or if she said she was feeling sick and then I would check on her. Sometimes she would get out of bed herself and come in my room and then I would take her back to her room."
Evidence concerning rape
As to the night in question, the complainant gave evidence that she went to a hotel where the appellant was working. The appellant made her drinks for which she did not pay. The complainant gave the following evidence (T26 and 27):
"Can you remember being affected by alcohol that night?.....Ah yes.
And what do you – what do you remember about the level of intoxication?.....I had blacked out.
Okay, well what do you actually remember as to the last thing that you remember being at the club and what, if any – you remember that can–?.....The last thing I remember was actually having the drink.
Hm mm, and what's the next remember – sorry, what's the next thing that you remember?.....[the appellant] being on top of me.
Okay, now, I want to take you to this then. Can you – can you tell the jury what you remember?.....Um, so, I remember having the drink and then um, I remember waking up and [the appellant] was on top of me in his and my Mum's bed and um, I noticed that he was naked and thrusting and I realised that he was having intercourse with me and then I blacked out again and I remember coming to and I couldn't move and I put my hand over my mouth and I remember the tears coming down my face and um, I blacked out again and then when I came to, I asked him what he was doing and um, that's when he got off, got off me.
And did he respond when you asked him that?.....He's – so I asked him what he was doing and he told me that I was having a nightmare and to go back to sleep.
After he – I think you said that you could tell that he didn't have any clothes on?.....Yes.
After he said those words to you, what did he do?.....He went to the bathroom. It's an ensuite so I could see directly where he was and he looked down at his penis and then he asked me if I was on my period.
Can you remember what – what he actually said to you?.....What he said?
Yeah?.....He just asked if I was on my period.
Okay, and what did you say?.....I said, yes.
And what happened then?.....I told him that I wanted to go sleep in my own bed and he told me that I should stay in the bed he was in because I might throw up in my sleep.
And what did – what did you do?.....I went to my own bed."
The complainant's younger sister also gave evidence about the events of the night in question (T263 and 264):
"Okay, just tell the jury – just tell the jury what happened that night from the beginning. From when you remember your sister coming home, just tell the jury what happened?.....Okay, so, [the complainant] and [the appellant] came home around the same time. [The complainant] had been drinking. I took her – I assisted – like, helped her, assisted her to her room. I put her in bed, she was fully clothed. I got her a bucket, I got her water and I went back to my room and I just – I was laying in my bed, I'm not too sure how long afterwards, but, I heard – from my room I heard – I could hear crying, I could make out crying and um, and the sound of – sorry. Okay–
What could you hear?.....Um, um, I could hear crying and the sound, like, when – the sound when Mum – the same sound that you could hear when Mum and [the appellant] would have sex, like the – the bed and the–
All right. Can you just explain to the jury um, what you did when you heard those sounds?.....I froze. Um, I got up – I got up, I went and walked into the hallway because Mum's bedroom is right beside my bedroom, so, and that's where the noises were coming from, in Mum's room. I got up, went to the hallway, I checked – because I heard the crying, so I checked the [complainant's] room, it sounded like a girl, a woman. I checked [the complainant's] room, she wasn't there, her door was open. I think I did a quick look past. I remember going in the kitchen and grabbing a butter knife and I'm fairly certain I unlocked – cause Mum's door you can unlock it from the outside with a – with a butter knife, so, um, I'm fairly sure I unlocked the door but I don't know if I opened it or not I can't remember.
Okay, well, when you got to the door, I think you said, you don't know whether you unlocked it, can you recall what you did when you got to the door other than putting the butter knife in?.....Um, I just listened, but I couldn't make out anything else, I could hear the bathroom fan on in Mum's ensuite but yeah I couldn't hear – I couldn't really hear anything else.
Okay?.....I don't – I don't think so I can't remember.
And can you explain why it was that you didn't go in?.....I don't know I was scared.
What did you do?.....I didn't know what I'd walk in to. I got – after I stood there I just went back to my room and I just went and laid on my bed and I don't remember after that that night – doing anything else that night I just think I – I think I may have just fallen asleep on the – when I went back to bed."
The appellant gave a different version of events from the complainant's sister, and denied the complainant's evidence that an act of intercourse had occurred (T386 and 389):
"Okay. Let's come back to what actually happened on the night so you can help the jury?.....So that night I was – I had been working in the kitchen in the restaurant. I had finished. I had gone to … that night and worked there for I think it must have been three or four hours, knocked off early because it was not a huge night. We only opened the front side of the bar. I finished and then I went. I had gone home and I was quite tired so I had gone home, showered, in my room. I think it was – I was in my room for maybe I would say probably 45 minutes to an hour and there was a loud bang on my door and it was the [complainant's sisters'] voice I identified. She was like, ['the appellant, the appellant'], you know, 'She's at it again', you know, 'I'm sick of this', you know, 'You deal with it. I can't deal with this' and I said, 'What is it about?' So [the complainant] – then I came out of my room, walked to the hallway.
So you came out of the bedroom?.....Came out of my bedroom and exited to the kitchen and on the way [the complainant] had gone into her room and she was spewing at this time. She would spew in the hallway. There was spew I think on her body. There was spew I think in a bucket that was in her room. I don't know how it got there but she was in her room at this stage so I had gone there, you know, popped my head into and say, you know, 'What's going on?' and she says like, 'You handle it. I'm not handling it'.
So who said that to you?..... [The complainant's sister].
Okay. Now, just pausing for a minute, what was the – how was the relationship between The [complainant's sister] and [the complainant] at this point in time?.....Well, I suppose like any sister they had fights and there were moments they were great. There were moments they had fights but I think right around January, February and March time their relationship was on edge, you know, because [the complainant] would go out, drink, come home, you know, just annoy the hell out of her and she hated it.
Let's move on then back to the night?.....Yeah.
Okay. So you looked at the room. [The complainant's sister] is telling you had enough?.....Yeah.
What happens next?.....And so – and I thought – I felt tired. I said, 'Look, [the complainant's sister], come on. Give her – you know, give her a hand' and [the complainant's sister] is like, 'No, I'm not – I'm not doing this' and then [the complainant] was like, ['the appellant], can you help me? Can you look after me?' and then I turned to her sister and said, 'You know what, [the complainant's sister] come on, give her a hand', you know.
Okay. So there's an exchange – does [the complainant] end up staying in her room, in room A?…..Ah, no, no, I, um–
Where does she go?…..She – her sister helped her to my room which is D, yeah.
D. So your evidence is that [the complainant's sister] assisted [the complainant] to room D?…..That's correct. For me to take care of her.
Right. Now, [the complainant's sister] assisted [the complainant] to room D. Did [the complainant] go – was there anything with [the complainant] that went into the room?…..What I can remember, um, I think there was a pillow and a mink blanket, sort of like a white – you know, the zebra – like a white zebra print. We had white and black and it looked like the colours of a zebra, and there's a mink blanket and the pillow and, and [the complainant's sister] – went into the room with [the complainant].
And what happened next?…..And they stumble into the room and I told [the complainant's sister] to put her to the middle of the bed and we put her into the recovery position, facing the window in my bedroom and I think I told [the complainant's sister] to leave my door open and bring me the bucket – we have a red bucket. It takes about probably ten litres, ten, fifteen litres – and bring me the red bucket, to put it there, and that was, that was it, and she went to her room, I suppose, or wherever it was.
Okay. Now, you're now in the room with [the complainant] and there's only the two of you there?…..Yes.
Okay. Now what are you wearing at this point?…..When I got home that night, I'd had a shower.
Hang on. Stop. Just – what are you wearing in Room D at that point after–.....I was wearing blue jeans and a charcoal grey or charcoal black top which had two maroon colour and big red ones in the front of it.
Okay. So two, two maroon colours?…..Yeah, maroon – maroon colour.
Right. I think it might sound like mirror on the–......No, no, no, not mirrors – maroon.
Maroon?…..Yes.
Okay. So that colour on the shirt?…..That's correct.
Now, [the complainant] is on the bed?…..Yes.
Okay. Is there anything else on the bed with her?…..Her blanket and her pillow. That's it, and she is lying there, covered half way.
With?…..With her blanket.
What happens next?…..What happens next. I think I proceeded to lying down with one of my legs outside of the bed and one of my legs on the bed. I had my hand back, laying, laying that way and I must have dozed into sleep, yep.
And what's the next thing that occurs?…..I think about – it must have been an hour or two or three, maybe, I got woken up to movements in the bedroom and sort of like a distant sound or voice and when I could wake up, when I sort of woke up was, […], and then I proceeded – I tapped her on the right shoulder and said, 'Hey, what's going on?', and so she then sort of got up, sort of got up and sat on the bed, and she's like, 'Oh, I must be having a nightmare or something', and I said, 'Go back to sleep'. So she did and I got out and walked into our ensuite, used the – had a, what do you call it, had a number one piss – you know, I went to the toilet, washed my hands and came back to bed. That was it.
Now when you went into the ensuite, is there a light in the ensuite?…..Yes, several lights.
Okay. Did you turn the light on?…..Yes, I did.
And what's the next thing you do as you walk – well, what's the first thing you do as you walk into the ensuite?…..Oh, the door was – the door was, um, shut, so I pulled it open, walked in and sort of pulled it half way behind me and then I used the toilet and then I finished to wash my hands, turn the lights off, slammed the door back and went back to sleep.
Now, did you comment to [the complainant] about her being on her period?…..No.
Did you have intercourse with [the complainant]?…..No, I did not."
As is apparent from the evidence of the appellant, his version of the events was in stark contrast to the evidence given by the complainant's younger sister. During cross examination of the younger sister, the appellant's version of events leading to the complainant being in the appellant's bedroom were put to the younger sister. She was direct in her denials (T289 and 290):
"When [the complainant] came home I suggest to you that you went and spoke – sorry, that as she came in that you took her into her room and you then went and spoke after a period of time to [the appellant]. Do you agree that you went and spoke to [the appellant] that night before [the complainant] finally settled down for the night?.....No.
You went to him and complained about the way [the complainant] was and the fact that she was intoxicated. Do you accept that you said that to him that night?.....No I have no recollection of saying anything to him.
And you were fed up with her behaviour in the sense of being intoxicated and coming home, that you had that conversation with him that night. Do you agree with that?.....No I don't remember.
That you had in fact that night – now I am moving to things that had happened, not said, that she had in fact vomited that night and that she had vomited into a bucket. Do you agree with that?.....I don't remember.
That you then assisted [the complainant] to [the complainant's mother's] room, do you agree with that?.....No, no.
You basically – well you did, you delivered her, meaning [the complainant], to [the appellant's] door or the door of that room?.....No I didn't.
And telling him to deal with her because you were fed up with her?.....No I didn't, I put [the complainant] in her room in her bed.
That you helped her to [the complainant's] room, or that bedroom, that – sorry, you helped her to the parental bedroom, so [the complainant's mother] room we'll call it that, and that you carried her blanket and you carried her pillow with her to that room. Do you agree with that?.....No. No I didn't, why would I put her in a room that [the appellant] slept in when Mum wasn't home.
Because you were fed up with having to deal with her intoxication, and that's what you told him – you'd had enough, 'You deal with her'–......No.
–dropped her in the room, 'You take care of her.' Do you recall saying – do you accept that you said that to him?…..No, I do not accept that I said that to him because I didn't.
You had been dealing with her coming home intoxicated over time though, hadn't you?…..Yes, I had.
It had become an issue between you and [the complainant], hadn't it?…..Yeah, it became an issue but I did not put her – at no point did I put her, ever, in Mum and [the appellant]'s bed.
I'm not suggesting you put her in the bed – put her in the room is what I've put to you–.....No, I didn't put her in the room.
And that that frustration, you became increasingly frustrated with [the complainant] over time, coming home intoxicated and causing you grief – do you agree with that?…..I do agree that she came home and caused me grief, yes, but I didn't put her – I don't agree with you saying that I put her in [the appellant's] room.
And that you had been complaining to [the appellant] about this conduct prior to this night – do you agree with that?…..I probably had, yeah, I probably did say that – because she said some nasty things and she wasn't the best person.
I don't want to go into that, okay. I just want to put to you specific things, okay, if that's all right. I don't want to stray outside of that. Now–.....Okay.
So when, when she was placed – when she went to that room, meaning [the complainant], into [the complainant's mother's] room–......But she didn't."
If accepted by the jury, the younger sister's evidence provided significant support for the prosecution case.
Complaints
The Crown led evidence of statements by the complainant concerning the events in question, commonly known as evidence of "complaint". The complainant's younger sister gave the following evidence of conversations within about three nights of the events (T265-267):
"Okay. Now can you recall sometime after that event speaking with [the complainant] about what had happened?.....Yes.
And can you tell the jury the circumstances in which a conversation was started in relation to that night. So how long after that night was it that you had a conversation with her?.....I remember two nights and I remember two nights – one night she told me one night she was telling me but she didn't say who.
Let's just go to – let me just take you to – can you remember after this event a night when she – she came home and you spoke to her?.....There was one night she came home and she had been crying and she told me that something happened to her and she didn't tell me who – who it was and she wouldn't tell me anything else other than something happened. And then there was another night that she came home, she'd been – I think she'd been out drinking again and she came home crying and – with like [the appellant] came home as well, the same time, and – and she told me – so she asked me to talk to her and we went into her room. [the appellant] was telling me not to talk to her and that she was drunk and, 'Don't listen to anything that she says'. I think [the complainant] told him to get out and I told – I just said like I want to talk to her. He kept asking me what she was saying and then eventually, yeah, he – I believe he left, like he went I don't know what part of the house but we were in [the complainant]'s room. [the complainant] and I were in her room and we sat on the bed. She told me – she asked me if I remembered what she had told me and she made me promise to her that I wouldn't say anything and she just told me that [the appellant] raped her. I asked her – I asked her if it was the night that I had – because I told her I heard noises and I asked her was it that night and she said, 'Yes'. She told me that night as well when we were talking, she told me that [the appellant] had – because I asked her if it had happened before or if it was just the one night and she told me that it was just the one night and then she told me that in the past when she was in high school [the appellant] would give her massages and he – on an occasion she said that he was giving her a massage and he put his hand down her pants. She told me – because I told her that we need to tell Mum when she told me and she said that she didn't want to tell Mum because Mum was ... She said that she was scared that Mum wouldn't come home or that Mum would hate her and I just said to her, like it's not something that she should take to her grave and that she should keep to herself. So we agreed that when Mum gets home we would tell Mum.
All right. Now, I just wanted to check with you, you indicated that she said to you, 'Remember what I told you before' and is that – firstly, did you ask her what she meant by that or did you just continue the conversation and she told you that [the appellant] had raped her?.....I asked her. I'm fairly sure I asked her what she meant and she said about someone doing something to her, I'm fairly sure.
And that that's what she was referring to. Okay. Now, did she tell you how long before this night it was or was it in response to you asking her questions or suggesting things to her that she told you?.....It was in response to me asking. Like I had asked her – I said, 'Was it' – like I don't know my exact words but I said, 'Was it this night' because I told her that I heard – I heard stuff.
How many nights after you heard the noises was it that you had this conversation about [the appellant] raping her?.....I'm not too sure. I think it's around three.
Three nights?.....Yes, I think so.
You indicated that she'd come home, and that [the appellant] would come home at about the same time I think you said or – can you remember the circumstances in which you found yourself in her room that night? You've mentioned that in the past, you'd do things to help her out, can you recall whether there was any difference in what's occurring as to your sister – providing her with assistance and– ?.....The night that I heard the noises?
No, the night she told you that [the appellant] had raped her?.....Oh sorry. Was there anything different? I think she was crying, I'm not too sure. She didn't want me to leave her, she was being really clingy and that's when [the appellant] was hovering around and she – I could – I could kind of feel that there was something–
MR HUGHES: Objection, objection. I don't object to the questions and answers, it's the speculation as to state of mind that I object to.
MS MASON: I'll ask a question, it's probably easier.
HIS HONOUR: Just redirect it, redirect it back.
MS MASON: Yes. (Resuming) All right, well, you say [the appellant] was hovering around and she was asking you don't leave me and it was after that you then had the conversation with her?.....Yes.
Now, can you remember any of the detail of what she told you about that night?.....Oh, sorry, um, okay, so, when she told me, she said, when she told me what happened, after she said who it was, she said that, she was like blacking – she was blacked out, or in and out of consciousness. She said that – that she – when she – when she was in consciousness, like, she was aware that he was inside of her. She said she was covering her mouth and that after – after it had happened, she remembered that – like, this is what she told me on the night after it happened, he was in the bathroom and he asked her if she was on her period and um–
Do you remember whether she said at any time, when she was recounting to you the actual act, whether she told you what – whether she had said anything?.....She told me she said that – she told me when she was in consciousness, she said, like, what are – she asked, 'What are you doing'. I'm not sure exactly what, but something like, 'What are you doing' and he – I can't – I'm not too sure on his response, whether it was – whether she said he – he responded with, like I was sleeping or I slipped or, I'm not too sure.
Okay, now so after she had disclosed this to you, you said that you'd agree not to tell your mum?.....Yes.
And that, I think you said, that you would wait until mum came home?.....Yes."
A friend of the complainant, Mr A, gave evidence of a conversation with the complainant which he understood occurred within a day or two of the events (T302-303):
"Okay, now, I want to take you to 2013. Can you recall, or did you visit [the complainant] at the home in ... at a time when her mother was away?.....Yes, I did.
Do you recall a time, a particular time, visiting [the complainant] at her home and her telling you something about something that had happened?.....Yes, I do.
Can you just explain to the jury what it is that you remember, where you were and what you remember [the complainant] telling you?.....Okay. So I went to [the complainant's] house one night. She told me she had to tell me something and then we went out on her front deck and then she told me that something happened, I can't remember if it was the night before or a couple of days previously, but she told me that [the appellant] had raped her.
Okay. Now, can you recall how she was when she was telling you that?.....She was quite upset and she just – just very distraught and upset and, yeah.
What were you doing?.....I was just comforting her, making sure she was okay and just giving her my full support throughout that time.
Okay. Was anyone else there with you when that conversation took place?.....No, it was just us two.
Can you recall any other details of the conversation?.....No, we didn't – we didn't get into much detail after that."
Ms B gave evidence that in 2013 the complainant messaged her on Facebook and told her she had been "assaulted" and "fingered" (T312). Ms B made contact with the complainant who told her that the appellant had "touched her". This complaint concerned the indecent assault of which the appellant was acquitted.
Ms B said that two or three weeks later there was a further conversation (T313):
"Yes. Where you were and the context of the conversation and basically what happened?.....Yes. So she was at my house and we were drinking and she was really upset so I asked her a little bit more about everything and she told me that she had been raped.
Okay. Did she say who?.....I asked her.
Okay. You tell the jury what it was – how the information came out?.....I asked her if it was [the appellant] and she said yes.
I think you said this conversation was three weeks after the conversation she had had after she had messaged you?.....Yeah.
So what did you do?.....Panicked again, told my mum, tried to organise a the living situation for her to get her out of there.
All right. When she was telling you can you remember how she seemed to you, what her demeanour was?.....She seemed broken."
The complainant's mother returned home in the first half of 2013. In mid-2013 the complainant's older brother returned home from Sydney. He gave evidence of statements by the complainant (T214–216):
"Okay. I want to take you to a time after you returned from Sydney, do you remember a particular occasion when you and [the complainant] and [T] were together, that something was raised by [the complainant] to you–.....Yes, I do.
–that was obviously worrying her?…..Yep.
And can you remember, firstly, what, what was the context of the conversation?…..The context was just we were catching up. I was obviously catching up with my sisters. I hadn't seen them for a while. We were reminiscing on family, family moments and then, ah, something happened that [T] – I can't remember how it got brought up, but [T] kind of just said, 'Tell him', and then I just looked at [the complainant]. [The complainant] then stated that something had happened to her or with her while she was drunk. She didn't want to say more. [T] pressed her to ask – or tell me. [T] definitely wanted her, you know, to tell me. She wouldn't tell me. I just said, 'Whenever you're ready, let me know.'
Okay. So [T] has said something to [the complainant]–…..Yep.
–that suggested there was something that [the complainant] had to tell you?…..Yeah. I can't remember exactly how it got brought up but that's how, you know, it got pushed towards me more.
And after [T] had said something to [the complainant], what do you remember [the complainant] saying to you?…..She said that something had happened to her while she was drunk, after a night out, like, really, really drunk. She just, you know, like something. I assumed it was a mistake–
No, don't worry about what you assume......Sorry.
Sorry, you've got to be careful. Just about what she told you.....Yep.
So she was very, very drunk and you said something had happened to her?…..Incident happened to her. She didn't want to tell me more and she obviously looked distressed so I didn't want to push more.
Okay. And, so, where was the conversation left then?…..In – just that, that's it, and I told her, 'Yeah, whenever you're ready.'
All right. Now, can you recall having another conversation with [the complainant] after that one?…..Yes, I do.
Where that, where the topic was raised again?…..Yep.
Firstly, do you remember how long after?…..It would have only been a month, less than a month after it happened – after the initial moment she told me.
And can you, again, can you give us some context – tell us the circumstances?…..She had an argument. She was very upset so I went into her room to talk to her, see what was going on.
Yeah?…..And then that's when she just told me. She said, 'Remember that thing I was telling you a while ago', and I said, 'Yeah', and then she said it was [the appellant]. She just straight away told me. She didn't even – yes, she just said it was [the appellant].
And do you remember – did she give you any detail about what had happened?…..She just, yeah, re-stated that she was really, really drunk. She remembers waking up in bed and he was either touching her or on top of her. She said she didn't know what to do, that she was just frozen and she asked him to, like, 'What are you doing?', and I can't really remember his reply but she said she was just frozen. She didn't know what to do, so.
Okay. Now, you don't need to say really what she said but how – what was your reaction to that comment?.....Then I got frozen. Like, I froze up.
Okay. So did you then speak to her and talk to her about what – give her some advice as to what she should do?.....I did, yeah.
Okay?.....I told her definitely to take this further but just to make sure that it was a hundred percent.
Did you talk to her about – well, I will leave it there. After – sorry, before I go onto that. Was anyone else there when you had that conversation?.....[T] was."
With respect, I agree with the examination by Pearce J and with his Honour's enunciation of the principles [31]. As in the case of Mulholland, the appellant did not seek to put any material before the trial judge or this Court to suggest that the order under the Community Protection (Offender Reporting) Act would have any particular impact upon the appellant. It was not suggested that the reporting obligation would impose a significant burden upon the appellant. As in Mulholland, there is "no reason for this Court to conclude that the order will have a punitive impact of any significance".
Sentencing range
In an endeavour to assist the Court, the appellant provided a table of sentences imposed for single crimes of rape between 2005 and 2017. The lowest sentence was imprisonment for six months (wholly suspended) and the longest six years. In addition, the appellant referred to the Sentencing Advisory Council report "Sex Offence Sentencing: Final Report No 4" (August 2015) in which the data collected for the period 2008–2014 produced a median sentence of 37.5 months.
The table and statistics are helpful, but they possesses limited value. In Hili v The Queen [2010] HCA 45, 242 CLR 520, the High Court was concerned with an appeal from a decision of the Court of Criminal Appeal allowing a Crown appeal in respect of sentences imposed for criminal offences against the Commonwealth law. The majority judgment explained the use to be made of a history of sentences at [54] and [55]:
[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'.
[55] As the plurality said in Wong:
'[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were'." [Footnotes omitted.]
The following passage from the majority judgment in Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40] and [41] is also pertinent:
"[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
[41] As the plurality pointed outin Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel." [Footnotes omitted.]
There is no tariff for the crime of rape. Every crime of rape is a serious crime, but as with all crimes there is a scale of seriousness.
The appellant's offending was not at the lower end of the scale of seriousness. It involved significant circumstances of aggravation, in particular the grave breach of trust and severe consequences for the victim and her family. There were limited circumstances of mitigation. The appellant was not entitled to the benefit of a plea of guilty. He has not accepted responsibility for his criminal conduct.
In other than exceptional cases, crimes involving sexual assaults, particularly the crime of rape, almost invariably attract a significant sentence of imprisonment because of the importance of factors such as punishment, denunciation and retribution, as well as providing the victim "with appropriate vindication and protecting the public": Mulholland v Tasmania (above) at [11]. Underlying all sentencing for criminal offending is the aim of protecting the public and, in this regard, deterring others who are minded to engage in such conduct is particularly important when sentencing for crimes of serious sexual assault.
In addition, there is an added element to the importance of general deterrence in the circumstances under consideration. The appellant's crime was committed in what might be conveniently described as "domestic circumstances". He was a trusted step-father of the victim and he abused his position of trust within the family situation, and in breach of the sanctity of the family home. As this case graphically demonstrates, offending in these circumstances places the victim in a particularly difficult and traumatic situation with respect to disclosure to the family and the impact of disclosure. It is not uncommon for conflicting pressures to be placed upon the victim.
In the Final Report of the Sentencing Advisory Council to which I have referred, the following findings were reported:
"Contrary to the perception of the sex offender as a predatory stranger, more than 90% of female victims and 80% of the male victims knew the perpetrator, with more than half of sexually abused girls (52%) and approximately 1/5 (21%) of sexually abused boys being abused by fathers, step-fathers and other male relatives (including siblings)." [Footnotes omitted.]
The protection of vulnerable young women within the confines of a family home is of high importance. Men in trusted positions within a family unit must understand that when they abuse their position of trust by committing serious sexual assaults against vulnerable members of the family, their conduct will be met with condign punishment.
The trial judge was correct in concluding the appellant's criminal conduct was a "serious example of the crime of rape".
In my opinion, the sentence of three years' imprisonment was manifestly inadequate so as to be "unreasonable" and "plainly unjust". It is so manifestly wrong as to demonstrate that it must have been caused by a "undefinable error in the exercise of the judicial discretion". Further, in my view, the inadequacy is such that this Court should not exercise its residual discretion to allow the sentence to stand. The importance of deterrence, retribution and denunciation would be undermined. To allow this sentence to stand would undermine public confidence in the administration of criminal justice in an area of great concern to the community, namely, crimes of sexual violence and sentencing for such crimes.
For these reasons, I would allow the appeal and set aside the sentence of three years' imprisonment. I would impose a sentence of imprisonment for five years and order that the appellant be eligible for release on parole after serving one half of that sentence. I would not make an order under the Community Protection (Offender Reporting) Act, leaving the existing order in place.
Having reached these views, and having regard to the material provided by the Director concerning the pattern of sentencing for single crimes of rape, I consider it appropriate to draw attention to the remarks of Blow CJ in CJP v State of Tasmania [2015] TASCCA 9 at [2]:
"It may be that the time has come for consideration to be given to the imposition of longer sentences in this State for serious sexual crimes. According to a research paper published by the Sentencing Advisory Council in April 2013, sentencing levels in Tasmanian courts for sexual offences are lower than they are in other Australian jurisdictions: 'Sex Offence Sentencing – Research Paper', at 37."
In Director of Public Prosecutions v WLNH [2017] TASCCA 15 at [28], Brett J agreed with the remarks of the Chief Justice. I also agree. Taking an overview of the material presented in this appeal, in my view sentences for single crimes of rape appear, on average, to be low, and this Court should indicate that, in the future, offenders who commit serious sexual assaults should understand that they can expect to receive lengthy terms of imprisonment which are longer than the average periods imposed in the past.
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