Macfie v The Queen
[2012] VSCA 314
•17 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0233
| JOHN WILLIAM MACFIE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | HARPER and TATE JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 November 2012 | |
DATE OF JUDGMENT: | 17 December 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 314 | |
JUDGMENT APPEALED FROM: | DPP v Macfie (Unreported, County Court of Victoria, Judge Howie, 31 May 2011 (date of conviction) and 2 June 2011 (date of sentence)) | |
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CRIMINAL LAW – Conviction – Convictions for 41 sexual offences (sexual penetration of a child under 16, indecent act with or in the presence of a child under 16, procuring sexual penetration by fraudulent means and procuring sexual penetration by threats or intimidation) involving seven teenage girls and one conviction for threat to kill – Whether conviction for threat to kill unreasonable and/or not supported by the evidence – Renewed applications for leave to appeal against conviction – Whether indictment overloaded and unnecessarily complicated leading to a substantial miscarriage of justice – Whether trial judge’s charge unfair and unbalanced – Whether judge erred in refusing to discharge the jury – Appeal against threat to kill conviction allowed – Leave to appeal on other grounds refused.
CRIMINAL LAW – Sentence – Sexual penetration of a child under 16, indecent act with or in the presence of a child under 16, procuring sexual penetration by fraudulent means and procuring sexual penetration by threats or intimidation – Total effective sentence of 15 years and 7 months’ imprisonment – Non-parole period of 11 years – Whether sentencing judge failed to accord procedural fairness in refusing to adjourn the plea to enable medical or psychological reports to be obtained – Third occasion for prisoner to be sentenced for sexual offences against children – Prisoner aged 70 at time of sentence – Absence of remorse – Sentencing judge aware of and took into account the prisoner’s health issues – Whether, given medical report subsequently obtained, a different sentence should be imposed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S A Moglia | Dribbin & Brown Criminal Law |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
HARPER JA:
By its verdicts, which were handed down on 31 May 2011 following a 21 day trial in the County Court, the jury in the most recent trial of the appellant (he has a history of sexual predation) found him guilty of 41 offences involving seven teenage girls. He was also convicted of making a threat to kill to one of them. All the events took place over a few weeks in April and May 2010.
A plea in mitigation was conducted on 1 June 2011. On the following day (2 June), the appellant was sentenced as set out in the table below:
Charge on Indictment (victim) Offence Maximum Sentence Cumulation 1 (LA) Sexual penetration of a child under 16 [Crimes Act 1958, s 45] 10 years 3 years 6 months 2 (LA) Indecent act with or in the presence of a child under 16 [Crimes Act 1958, s 47] 10 years 8 months 2 months 3 (LA) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 4 (LA) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 5 (LA) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 6 (EC) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 7 (EC) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 8 (EC) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 9 (LA) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 10 (LA) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 11 (LA) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 12 (LA) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 13 (LA) Indecent act with or in the presence of a child under 16 10 years 1 year 4 months 14 (LA) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 16 (OL) Procure sexual penetration by fraudulent means [Crimes Act 1958, s 57(2)] 5 years 2 years 6 months 6 months 18 (OL) Procure sexual penetration by fraudulent means 5 years 2 years 6 months 6 months 20 (OL) Procure sexual penetration by fraudulent means 5 years 2 years 6 months 6 months 22 (OL) Procure sexual penetration by fraudulent means 5 years 2 years 6 months 6 months 23 (OL) Procure sexual penetration by threats or intimidation [Crimes Act 1958, s 57(1)] 10 years 3 years 6 months 25 (OL) Procure sexual penetration by threats or intimidation 10 years 3 years 6 months 27 (SL) Sexual penetration of a child under 16 10 years 3 years 6 months 28 (SL) Indecent act with or in the presence of a child under 16 10 years 1 year 4 months 29 (SL) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 30 (SL) Indecent act with or in the presence of a child under 16 10 years 8 months 2 months 31 (SL) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 32 (OL) Procure sexual penetration by threats or intimidation 10 years 3 years 6 months 34 (OL) Procure sexual penetration by threats or intimidation 10 years 3 years 6 months 36 (OL) Procure sexual penetration by threats or intimidation 10 years 3 years 6 months 38 (TH) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 39 (OL) Procure sexual penetration by threats or intimidation 10 years 3 years 6 months 41 (DS) Indecent act with or in the presence of a child under 16 10 years 9 months 2 months 42 (DS) Indecent act with or in the presence of a child under 16 10 years 9 months 2 months 43 (DS) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 44 (DS) Sexual penetration of a child under 16 10 years 3 years 6 months 45 (DS) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months 46 (ST) Indecent act with or in the presence of a child under 16 10 years 9 months 2 months 47 (ST) Indecent act with or in the presence of a child under 16 10 years 9 months 2 months 48 (ST) Sexual penetration of a child under 16 10 years 4 years BASE 49 (ST) Indecent act with or in the presence of a child under 16 10 years 6 months 3 months
50 (ST) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 51 (ST) Indecent act with or in the presence of a child under 16 10 years 5 months 1 month 52 (ST) Threat to kill [Crimes Act 1958, s 20] 10 years 9 months Concurrent Total Effective Sentence: 15 years and 7 months’ imprisonment Non-Parole Period: 11 years Pre-sentence Detention Declared: 379 days Other orders:
Sex Offenders Registration Act 2004, s 34 - life reporting conditionsSentencing Act 1991, s 6F - sentenced as serious sexual offender on all charges
Background
The first of the seven complainants with whom the appellant became acquainted was a 15 year old girl to whom I shall refer as OL. She was the daughter of one of the appellant’s neighbours, and a student at a nearby secondary school. She was also under the care of the Department of Human Services. The appellant first met her when she visited him with her father before the Christmas of 2009. The trial judge, who described OL as ‘a needy and vulnerable’ girl, noted that she had only spasmodic contact with her father, and no contact at all with her mother.
The appellant saw an opportunity, and seized it. He told OL that if she ever needed anything – money or cigarettes, for example – he could get them for her. He also told her that he was a member of the Mafia, which was looking to recruit young girls. Were she to join, she would be provided not only with money but also with such things as an iPhone. But there was a price. In order to join, she would need to provide a DNA sample by having sex with an existing member. Since he was Mafiosi, access to a properly qualified sexual partner would not be a problem. On the other hand, as he explained these things to her, the Mafia had a system of ‘black marks’. These would accrue if the other members were not happy with her. Any resultant stain could, however, be removed were she to submit to further sexual acts with the appellant.
There is no point in speculating about the charm of this approach. It proved sufficiently attractive to induce OL to include one of her school friends, LA, as another of the appellant’s associates. LA was 14 years old. The two friends subsequently visited him in his unit, missing school to do so.
The appellant favoured LA with much the same invitation as that with which he had inveigled OL. LA too was told that a condition of her joining the Mafia was that she have sex with him. OL, who was present as LA was being propositioned, sought to secure the promised quid pro quo. She asked for money. The appellant said he could arrange this if they returned another day.
It was against this background that, on the evening of Friday 23 April 2010, the two girls revisited the appellant. By now, OL had (it seems) turned 16.[1] The appellant took them to one of the rooms in his unit. A mattress against the window inhibited the entry of light. He said that the Mafia were monitoring the room with thermal imaging from across the road. He told them to stand, lowered their underpants, and inserted his finger into the vagina of LA (charge 1) before twice assaulting OL in the same way (charges 16 and 18). On one of these occasions LA was present (charge 2). On another, although not in LA’s presence, the appellant penetrated OL with his penis (charge 20).
[1]I note that the transcript of her Video Audio Recording of Evidence (‘VARE’), made on 18 May 2010, has OL stating that she is 16 years old but giving her date of birth as ‘April 7th 1995’. In the special hearing conducted on 6 April 2011, OL said she will be turning 17 the following day, which is consistent with a date of birth of 7 April 1994 (see Special Hearing T 153). I will proceed on the basis that OL was 16 at all material times.
The two girls returned to the appellant’s unit on the following night (a Saturday). The appellant kissed them and felt their breasts. In addition, he digitally penetrated OL (charge 22), and warned that if they told anyone about what was happening, the Mafia would kill them.
The two girls paid a further visit about a week later. Again, he told them that they were being watched, and must allow him to touch their breasts and vaginas to show they were submitting. He then touched LA on the breasts (charge 3) and the vagina (charge 4), although each time on the outside of her clothing. In turn, LA was present when the appellant touched OL on the vagina through her school dress (charge 5).
On or about 27 April 2010, LA took another school friend, EC, to visit the appellant after school. EC was 14 years old. He told EC about the Mafia, adding that the principal and teachers at their school were members. He said that before being admitted to membership she would be required to engage in sexual acts with him (but, on this occasion, he added that there would be no penetration). Her engagement with him in this way was a necessary demonstration of her trustworthiness. In LA’s presence, giving rise to charges 11 and 12, the appellant then repeatedly placed his hand on the clothing covering not only EC’s breasts (charge 6) but also her vagina (charge 7). He did the same, through her clothing, to LA (charges 9 and 10) while in EC’s presence (charge 8). The appellant bought them food, and they remained overnight after EC had telephoned her mother to ask for permission. The concerns of EC’s mother were assuaged when the appellant masqueraded as LA’s father.
On another occasion in early May 2010, OL and LA stayed at the appellant’s unit from a Friday night through to the following Sunday. On the first night of that visit the appellant gave LA two, and OL at least three, glasses of Southern Comfort. He took LA into the darkened bedroom, pulled her pants down, and started to rub her clitoris (charge 14). Having asked her to lie down, he then placed himself on top of her with his pants lowered, rubbing his flaccid penis against the outside of her vagina (charge 13).
LA introduced a further school friend, SL, to the appellant because she too wanted to join the Mafia. SL was 15 years old. On one occasion OL and SL were present together at the appellant’s flat. The appellant took the two girls into the darkened bedroom and told them to lie down on the floor. He removed their pants and tights and inserted his finger into SL’s vagina and moved it around for about two minutes (charge 27). He then lay on top of her and rubbed his penis over her vagina (charge 28) and tried to insert it, but she told him to stop and to get off. The appellant also touched SL’s breasts under her school uniform (charge 29). The appellant then turned to OL, who initially refused to let the appellant get on top of her. But when the appellant told her that she would incur a ‘black mark’ which she could only erase by having sex with him three times, she allowed him to lick her vagina (charge 23) and insert his finger into it (charge 25). He was also charged with committing two indecent acts with OL in the presence of SL, namely, inserting his finger into OL’s vagina (charge 30) and touching her breast under her clothing (charge 31).
On a date between 9 to 15 May 2010 the appellant told OL to come to his flat. He told her the Mafia was angry with her. He accompanied her to bed and instructed her to start playing with him. He inserted his finger into her vagina (charge 32) and then, while lying on top of her, penetrated her with his penis - according to OL, three times (charge 34). After this, he informed OL that all her ‘black marks’ had been removed, and the Mafia no longer hated her.
OL and LA told another school friend, TH, about the appellant from whom – as they informed TH - they obtained money and cigarettes. TH was 15 years old. She decided to join in, and so OL introduced her to the appellant. Again, he told TH about the Mafia and that if she joined she would receive a ‘package’ with fake drivers’ licence, fake identity documents, a camera, and a bankcard loaded with money and drugs. The price to her was that she took off her pants.
TH visited the appellant’s unit on at least three occasions. On 17 May 2010 he took her into the darkened bedroom and touched her in the vaginal area, rubbing for a few seconds on the outside of her clothing (charge 38).
Also on 17 May 2010, when OL was at the appellant’s flat, he told OL that she had 15 ‘black marks’ because she had been putting her boyfriend before him. The appellant then told OL to stand up and he inserted his finger into her vagina for about ten minutes (charge 36) as he counted how many ‘black marks’ were being removed.
On 18 May 2010 OL and DS went to the appellant’s flat with another school friend, ST, who was only 13 years old. They found TH, LA and another friend already there. LA and her friend left. ST, DS, TH and OL stayed to talk and use Facebook on the appellant’s computer. This was during school hours. The four girls then left and returned at lunchtime, but TH did not remain long. The appellant gave the remaining girls cigarettes, drinks and $40 to share. He told them that he wanted to check if they had had sex before. As they stood together, he knelt and inserted his finger into OL’s vagina (charge 39) while in the presence of DS (charge 41) and ST (charge 46), and wiped his finger on his trousers. He then turned to ST and asked her whether he could do it to her. As DS watched, ST shook her head. He asked whether she had had sex before, to which she replied ‘no’. He told her he would have to break her hymen (‘like get split open’). He pushed his finger into her vagina ‘straight up … I could feel it touching my bone’ (charge 48, the base charge). He did this while in the presence of DS (charge 42), wiping his finger over his exposed penis in the process (charge 43). He then inserted his finger into DS’s vagina (charge 44) in the presence of ST (charge 47). He touched the breasts of DS over her school uniform (charge 45), again in the presence of ST (charge 51), and then touched ST’s breasts (charge 49) and OL’s breasts in the presence of ST (charge 50).
It was on this occasion that the appellant informed ST that if they told the police on him ‘then he can get us killed or something like that’ (charge 52).
Appeal against conviction
On 20 April 2012, Bongiorno JA heard an application for leave to appeal against conviction on five proposed grounds. He granted the application on one ground only (ground 5):
The verdict of guilty of charge 52 is unreasonable and/or cannot be supported having regard to the evidence.
His Honour otherwise refused leave. The applicant, however, has elected to renew his application for leave to appeal against conviction in relation to the four remaining (proposed) grounds. It is therefore necessary to set them out:
1.There has been a miscarriage of justice because the indictment filed against the Applicant was overloaded and unnecessarily complicated because of the number of charges it contained and that many of the allegations were duplicated.
2. The trial judge’s charge to the jury was unfair and unbalanced.
3.The trial Judge erred in law by failing to direct the jury in response to information that a juror felt under pressure from other members of the jury and that a member of the jury wished to take home an exhibit tendered in the trial.
4.The trial Judge erred in law by refusing to discharge the jury in circumstances where a high degree of need arose for the jury to be discharged.
I will deal first with the ground upon which leave was granted, and then with each of the proposed grounds.
Conviction – Ground 5 (Threat to Kill)
Charge 52 alleged that, in the circumstances set out above, the appellant made a threat to kill ST intending that she would fear that the threat would be carried out, or recklessly disregarding the prospect that she might be put in such fear. This is consistent with the relevant law. The threat must be to kill, and not to hurt or maim. It is not an ingredient of the offence that the accused actually intended to carry out the threat; it is sufficient for the offender to either intend that the person being threatened would fear that the threat would be carried out, or be recklessly indifferent to that possibility.[2] The threat need not be that the person making the threat will kill the victim himself or herself; it may be to have someone else perform the deed. It may also be necessary for the jury, in determining whether there really was a threat, to consider the relationship between the parties.[3]
[2]R v Alexander [2007] VSCA 178, [30].
[3]Barbaro v Quilty [1999] ACTSC 119.
In this case, however, the evidence falls short of that which is necessary to meet the charge. According to ST, the appellant told her that if she or any of the other complainants informed the police of the appellant’s conduct, ‘he can get us killed or something like that and that every time we’re on the phone to someone they can track us ... wherever we are.’[4] This was followed by the questions and answers set out below:
[4]Exhibit F, VARE, answer 199. (My emphasis).
Q: OK. How did that make you feel when he said that?
A:When he said people were following us, I felt really scared and worried about, what if I go somewhere by myself.
Q:Yeah.
A:And I don’t know who they are and they can get me in a car, take me somewhere I don’t know and do something to me.
Q:OK. And did you believe what he said?
A:About following, yeah, ‘cause me and [D] were walking, me, [D] and [O] were walking back and the exact same car just kept driving past us, like a Holden, I think, like silver or something.[5]
[5]Ibid, answers and questions 200 to 202.
During cross examination which was conducted at a special hearing, ST made the following concession:
Q: Is he a nice bloke?
A: Um, he seemed like a nice bloke.
Q: He certainly didn't threaten to harm you in any way did he?
A:Ah, well, he said that if we told anyone about this, then something could happen to us.
Q: He'd what?
A:He said that if we told anyone about it, then something could happen to us.
Q: Like what?
A: Um, I can't remember, but - - -
Q: He didn't threaten to kill you, for example?
A: No.[6]
[6]Transcript Special Hearing, T231 lines 8-15.
The appellant submits that this evidence cannot support a verdict of guilty on this charge. The Crown in response argues that his Honour correctly directed the jury that whether they believe a witness, in whole or in part, is a matter for them. So is the weight to be given to the evidence of that witness. It was therefore open to the jury to accept ST’s evidence and ‘take the view that she did not do herself justice in the answers she gave to leading questions in cross examination.’ And, as senior counsel for the Crown pointed out during the appeal hearing, strictly speaking ST’s response to her cross-examiner was entirely accurate: on her consistent account, the appellant did not threatened to kill her himself, but rather to have someone else kill ‘us’ or track ‘us’.
Whether the words used by an alleged offender amount to a threat to kill is a matter for the jury to determine having regard to the context.[7] But that is not the primary issue here. The first question is whether the appellant said that he could (and would, if they became informers) arrange for those who informed against him to be killed. Those words, if uttered, are unambiguous. The question is whether he said them at all, or whether he said ‘something like that’.
[7]R v Alexander [2007] VSCA 178, [30] and R v RJR [2005] VSCA 315, [71].
It might be argued that it does not matter, because it is for the jury to decide whether whatever they find was said amounts to a threat to kill. If, therefore, the jury are satisfied beyond reasonable doubt that something was said, and that that something was sufficiently close to ‘get us killed’ to mean the same thing, then this charge is made out.
When examined in context, I do not think that ST’s evidence forms a platform which is strong enough to sustain that outcome. ST herself was ambivalent, at best, about whether the appellant threatened to kill her or any of her friends. She was at least equally ambivalent about whether whatever was encompassed by the phrase ‘he can get us killed or something like that’ put her in fear as having any real import. And if she was ambivalent, it is difficult to understand how a jury could have no reasonable doubt. No matter how one reads her evidence, there remains the possibility, necessarily giving rise to such a doubt, that the appellant ‘didn't threaten to kill you’. Indeed, the complainant accepted, under cross-examination, the proposition that he made no such threat.
In M v The Queen, the High Court said:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[8]
[8](1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
In my opinion, the evidence of ST lacks the probative force to which the High Court referred. I would therefore uphold this ground of appeal.
Election - the first of the proposed grounds of appeal – an overloaded indictment
The first of the four proposed grounds upon which the applicant seeks leave to appeal is, in essence, that an overloaded and unnecessarily complicated indictment resulted in a substantial miscarriage of justice. Twenty-seven of the total of 52 charges faced by the applicant were for the offence of indecent act with or in the presence of a child under 16. He was convicted of them all. Thirteen of the 27 were for an indecent act with the particular complainant herself, while the remaining 14 were for indecencies committed against one victim in the presence of another. The applicant does not suggest that he has been charged with committing an indecent act with a particular victim (to whom, for the immediately present purpose, I shall refer as victim ‘X’) and then charged separately for committing the same act in the presence of a third party, the victim again being victim X. Rather, the complaint is that it was sufficient to proceed only with those charges in which the prosecution evidence was limited to proving an indecent act with the particular victim, victim X, even when a friend (to whom I shall refer as ‘Y’) was present. In these circumstances it was unnecessary and unfair to proceed also with a charge (albeit that that charge was theoretically open) in which the evidence was directed to proving that Y was a victim because the indecent act upon victim X had been committed in Y’s presence.
It is true that the indictment included a multiplicity of charges and multiple complainants; and of the latter, LA was the victim in 11 counts, and OL in ten. The other five were involved in a much less significant number of offences. It must have been difficult for the jury accurately to allocate particular segments of the evidence to the particular charge or charges to which they related. But this is a difficulty which can be overcome. Paragraphs [7]-[18] above demonstrate the point. They include explicit, albeit brief, reference to the evidence relating to each charge. The removal of the difficulty about which complaint is made simply requires, first, careful cross-referencing by those responsible for drawing the indictment; and, secondly, the equally careful mapping (by counsel and the judge) of the pathway between the evidence and the charges – with reference to any points at which the path becomes obscure, or vanishes altogether. If at the conclusion of the judge’s charge to the jury counsel does not think that the jurors are in a position to follow the route which the prosecution wants them to take, then it is counsel’s duty to bring that circumstance to the attention of the judge.
Experienced counsel made no submissions of this kind in this case.
Section 277(1)(c) of the Criminal Procedure Act 2009 is relevant in this context. It provides that an appeal against conviction must be allowed where ‘for any other reason there has been a substantial miscarriage of justice’. In other words, an appeal is not to be allowed merely because there is a risk of an injustice. Even were the indictment open to legitimate criticism, the appellant must go further and identify the substantial miscarriage of justice which actually occurred and about which complaint is made.
The applicant’s written case has failed to meet that requirement. In that respect it replicated the position taken by counsel at the trial. On the hearing of the appeal, however, counsel for the applicant (who neither prepared the written case nor appeared at the trial) relied upon various matters which, he submitted, were instances of substantial miscarriages of justice brought about by the unnecessary complexity of the prosecution case. Counsel employed as an example what he categorised as the unreasonable jury verdict on charge 52 (the threat to kill) which, it was put, was not justified by the evidence. Rather, it was described by counsel as the result of a ‘momentum’ which the jury was unable to resist – the product, in other words, of the jury’s visceral reaction to a plethora of charges which distorted the jurors’ capacity for objectivity, at least by the time they came to the last charge on the indictment.
Other examples upon which the applicant relied were the episodes giving rise to proposed grounds 3 and 4 (which relate to an incident when a member of the jury became distressed over what, it was said, was the ‘pressure’ imposed by the demands of the jury room after the jury had retired to consider its verdict and the judge’s failure to discharge the jury as set out in paragraph [20] above).
At one point, while discussing with the prosecutor the proposed use of tendency evidence, his Honour referred to the prosecution case as ‘a complex mosaic’.[9] This was an accurate description, according to the applicant, but it need not have been so. He contended that the Crown could have divided the evidence and the charges in a way that enabled the applicant to be prosecuted in a series of shorter, less complex trials, with each addressing a smaller number of offences. The use of recorded evidence, and in particular of the VARE interviews, would mean that the various complainants would be relieved of undue distress where their evidence might be needed on more than occasion.
[9]T 509, line 28.
It is certainly arguable that the indictment could have been better drawn. Parsimony is often an appropriate default position by prosecutors and judges in the criminal sphere. The Crown had more than enough material upon which to present the appellant to the jury for the person he is. The omission of the most minor of the charges, such as some at least of those alleging touching of fully clothed breasts, would not have deprived the jury, or the sentencing judge if a conviction were recorded, of an accurate picture of the criminality alleged by the prosecution.
On the other hand, there was among the 41 counts of sexual misconduct of which the applicant was found guilty a forensically significant collocation of common threads. These, collectively, revealed the applicant’s modus operandi and – more importantly – the extent of his criminality. The picture would have been badly distorted, and justice would not have been done, had the indictment been split, or had the jury for some other reason not been given the full picture of the applicant’s criminality. Trials must be fair to the prosecution as well as the defence, and justice generally demands that evil be fully exposed.
It is also significant that the applicant’s trial counsel did not raise any issue about the form of the indictment, or the number of charges faced by his client. If there was any injustice in this aspect of the trial, it must have been such as not to concern counsel to the extent that he thought to bring it to the attention of the judge. Indeed, the issue may have concerned counsel not at all; he may have perceived no injustice in it.
During the hearing of the appeal, counsel for the applicant characterised the charges concerning indecent acts committed in the presence of the complainant as ‘ancillary’ to the ‘main’ charges. These latter were those charges which related to the indecent act or acts of sexual penetration committed against the complainants. By contrast, the ‘ancillary’ charges were, he submitted, not only unnecessary, but added to the complexity of the trial. There were 14 instances of such charges. These are conveniently set out in the table below:[10]
[10]Addendum to the written case for the applicant, filed after the oral hearing.
Main offence Ancillary offence Cumulation 16 2 2 months 10 8 1 month 6 11 1 month 7 12 1 month Uncharged 5 1 month Uncharged 31 1 month 25 30 2 months Uncharged 50 1 month 39 41 2 months 39 46 2 months 44 47 2 months 45 51 1 month 48 42 2 months Uncharged 43 1 month
Senior counsel for the respondent submitted that the applicant’s complaint as expressed in ground 1 amounted to no more than a wish that the defence had run its case differently at trial and applied for severance. But, he pointed out, neither the prosecutor nor defence counsel, both of whom were experienced, saw the need to take that step. This was, according to the respondent, a ‘run-of-the-mill sex case’. There was nothing complex about it. The dramatic advances in the law governing sex offences meant that there is little utility in looking at views expressed in R v Taylor,[11] a case upon which the applicant relied. Senior counsel for the Crown rejected the suggestion that the indictment was overloaded or resulted in a trial that was too complex. Indictments such as this are ‘standard’ and dealt with frequently by juries. It is therefore no surprise that, at trial, the applicant did not suggest that the jury could not understand his Honour’s charge. Indeed, the issue in the trial was a straightforward one, which the jury had the responsibility of deciding. On the one hand, the applicant denied that the events described by the complainants ever occurred. According to him, the complainants were lying because they had been caught wagging school. The Crown, by contrast, presented them as witnesses of truth. The question for the jury to determine was whether the Crown had made out its case to their satisfaction beyond reasonable doubt.
[11](1992) 58 A Crim R 337, 341.
Senior counsel for the respondent continued with a submission that the inclusion of the ‘in the presence of’ charges was indeed necessary; the decision to include them in the indictment was therefore done advisedly, bearing in mind the necessity to ensure that the applicant was presented on charges which would enable the judge when sentencing to take into account the full circumstances of the offending in accordance with the principles in R v De Simoni[12]and R v Newman and Turnbull.[13] That would include, in this case, the humiliation experienced by the complainants in witnessing sexual acts being perpetrated on them in the presence of their friends.[14]
[12](1981) 147 CLR 383.
[13][1997] 1 VR 146.
[14]It is clear that in some instances at least humiliation was not initially experienced – invitations to others to become involved indicates this. But time, with the additional maturity it brings, might also bring a realisation of the degradation to which the victims had been subjected.
The respondent also rejected the characterisation of the ‘in the presence of’ charges as ‘ancillary’. They were offences in themselves, being a part of grooming and desensitising the girls, and drawing them into these activities. These charges had to be brought into account if the true criminality of the applicant’s behaviour was to be established.
I do not agree with the Crown’s proposition that this was a ‘run-of-the-mill’ sex case. It is not common for an indictment to contain 52 counts, and any indictments which match that in number should be carefully scrutinised for unnecessary prolixity before being signed. No jury should be asked to grapple with the very taxing intellectual and psychological demands which such an indictment necessarily places upon them unless justice to the Crown and the accused cannot otherwise be done.
There can be little doubt that at least one of the jurors in the applicant’s trial was very conscious of the pressure which was placed upon the jury by the multiplicity of charges with which they were required to grapple. The particular circumstances which brought the juror’s distress to the attention of the judge are outlined at [72] below. For the reasons later given, I do not think that the trial thereby miscarried; but the incident pointed to the additional burden of care imposed upon judge and counsel when an indictment alleging a very large number of charges is brought on for trial.
With this caveat, however, it seems to me that the position taken by the Crown is justified. The fact that much of the applicant’s direct offending took place in front of the friends of the girl upon whom the sexual assault was perpetrated is, I think, very significant. Part of the applicant’s approach was to induce the participation of a potential victim by first telling her that others had already engaged in the impugned activities. He would then prove his point by assaulting one of the potential victim’s friends while the inductee watched – being transformed by the very act of watching from a potential victim into an actual one.
There was also evidence of the ‘princess’ system, which rewarded the girls when they participated in pairs. The fact that the girls were together made it more likely that they would allow themselves to engage in the activities they did. These were not isolated incidents with different complainants. The girls were recruited by their friends over a matter of weeks to engage in group behaviour; peer pressure, coupled with the excitement of the illicitly exotic, was doubtless part of the explanation for the applicant’s ability to satisfy his criminal appetites by sexually assaulting seven immature girls. It was important, therefore, for the indictment to properly reflect this circumstance; and that could only be done by including what the applicant chose to describe as ‘ancillary’.
In my opinion, the suggestion that the indictment should have been or – if the appeal is allowed, should be – severed, is impractical. It would be difficult if not impossible to group the offences in a sensible way. When that difficulty is coupled with the importance of presenting to a jury and a sentencing judge the full criminality of the applicant’s behaviour, in what is clearly a series of inter-connected offences during a single, and clearly defined, period of offending, the criticisms of the indictment largely fall away. It could not properly be described as manifestly unjust.
The applicant relied upon what he characterised as a clearly incorrect verdict on charge 52 as evidence that the jury were disabled by the form and nature of the indictment to give him a fair trial. While accepting that the verdict on charge 52 cannot stand, I do not think that that circumstance establishes the point which the applicant seeks to make of it. It is in my opinion simply impossible to conclude, on the basis of one clear mistake, that the whole process is tainted to the extent that there has been a manifest failure to deliver justice.
The first proposed ground is not reasonably arguable.
Election – Proposed ground 2 (that the charge was unfair and unbalanced)
The applicant says that the trial judge was unfair and unbalanced in the following ways:
(a) he declined to summarise the arguments of counsel;
(b)his answer to a jury question about the alternate charges of procuring sexual penetration by fraudulent means unfairly reiterated aspects of the Crown case without properly addressing the issue raised by the question;
(c)his Honour then failed to accede to a request for a redirection by defence counsel;
(d)his Honour failed to address the argument put by the defence that there was no complaint about Charges 10 and 45 from the primary victims; and
(e)his Honour made remarks during the charge that reflected on the merits on the cases put by each side:
(i)his impression of EC was she was ‘confident and straightforward’;
(ii)that the jury might think that a prior inconsistent statement by LA ‘does not amount to very much, really in the whole scheme of things’; and
(iii)when instructing the jury about lack of established motive to lie, his Honour noted that the prosecutor was scornful of the suggested motives and said, ‘If you agree with [the prosecutor] about this and you might think it hard not to …’ .
Declining to summarise arguments
It is not accurate to say that his Honour declined to summarise the arguments of counsel. Rather, the judge referred to the parties’ arguments when addressing the individual charges. Counsel for the applicant submitted that this meant that the strength of the arguments being put by (in particular) the defence, was lost. The respondent says that the decision about how to deal with the parties’ arguments in the charge depends on the particular circumstances of the case. It relies on the observations by Weinberg and Bongiorno JJA in Werry v The Queen:
It is clearly established that a trial judge’s charge need not follow any specific pattern. Each charge must be tailored to the particular circumstances of the case. Sometimes, in order to ensure that the defence case is adequately presented to the jury, it will be necessary to set out in some detail the arguments put forward in counsel’s closing address. That is particularly so where those arguments do not emerge clearly from either the summary of the evidence provided by the judge, or the nature of the case itself. In other circumstances, a much briefer reminder of counsel’s arguments will suffice.[15]
[15][2010] VSCA 314, [42].
This passage is not entirely apposite to the present circumstance, because it is concerned more with the tension between the virtues of brevity and the requirement to be thorough than the positioning of summaries of the evidence. It is helpful nevertheless. In my view, when evaluated against the exigencies of this case, his Honour’s approach was appropriate. As noted above, the positions taken by the parties were not complex. And his Honour made it clear, in a context that made it comprehensible, what each party’s argument was. So, for example, early in the charge, while speaking of the jury’s task in assessing the credibility of the witnesses, his Honour reminded the jury that the defence case was that each complainant was lying about the sexual acts said to be committed by the applicant and the circumstances in which this offending took place.[16] Later, when dealing with the alternative charges concerning OL, his Honour set out both the Crown position and then the defence case. He reminded the jury that, according to the applicant, the sexual acts did not take place at all; but, if they did, they were procured not by threat or fraud, but by gifts of money and cigarettes and that OL, as a 16 year old, was free to make her choice.[17] When summarising the evidence of each complainant, his Honour referred the jury to the relevant questions and answers in the applicant’s record of interview setting out his response to the particular allegations.
[16]T 529, lines 27 to 31.
[17]T 568, lines 12 to 26.
In my opinion, his Honour put the case for each party in a way which satisfied the obligation placed upon a trial judge to summarise the arguments for each side. As the judgment in Werry makes clear, the charge need not follow any specific pattern. And as the courts have said on numerous occasions, jury charges should contain no more than is necessary to enable the jury to discharge their obligation to return a true verdict according to the evidence. The charge in this case met that test.
Dealing with a jury question
The complaint about his Honour’s handling of a jury question arose out the following question:
If [the applicant] has offered [OL] money and smokes in return for sexual favours and has provided money and smokes, is this still classed as ‘fraudulent means’? Thanks.[18]
[18]T 641, lines 5 to 9.
In a redirection, his Honour told the jury the answer to their question was ‘no’ and added the following:
I should just elaborate on that a little. As I have told [you] and you have it in the notes that I have provided you with, fraudulent means is dishonest conduct, that is, conduct which is knowingly untruthful, engaged in with the intention to deceive. That means that insofar as the evidence of [OL] was that [the applicant] offered her cigarettes and money and gave her cigarettes and money, then that cannot be said to be dishonest conduct, because he gave to her what he offered to her.
The prosecution case, just to be clearer about this, is that the fraudulent means was the offer of membership of the Mafia and the receipt of benefits from the Mafia such as money and what she said in her evidence in answer to Question 71 was ‘He said that you get money and stuff off them and you never get in trouble by the cops and you get iPhones and stuff’. So that is the fraudulent means that is the basis of the charges in which it is alleged that the sexual penetration was procured by fraudulent means. That offer is different to the evidence of the offer of money and cigarettes which her evidence was that he gave to her.[19]
[19]T 650, line 12 to T 651, line 1.
Following this redirection, defence counsel sought a further redirection on the basis that his Honour, in fairness, ought also remind the jury of the defence case, which was that the complainants – and certainly OL, who was 16 – were beyond the age of believing far-fetched stories linking the provision of an iPhone and other benefits with the Mafia. The real inducements were the money and cigarettes.[20]
[20]T 653, lines 7 to 30.
His Honour did not agree that such a redirection was necessary. He therefore declined the request. The Crown submits that this decision was correct. First, the jury were entitled to have the answer to their question put in context. Secondly, the redirection was balanced and fair.
I agree. In my opinion, there is no substance in this aspect of proposed ground 2.
Absence of direct evidence for charges 10 and 45
In relation to what is said to be the failure by his Honour to address the absence of evidence in relation to charges 10 and 45, defence counsel sought a redirection from his Honour to emphasize the argument put by the defence that, while there may be evidence from one of the girls of seeing an indecent act on the other girl present, where the second girl did not give direct evidence of such an indecent act being committed, the Crown had not established the offence beyond reasonable doubt.[21]
[21]T 628, lines 12 to 17.
By charge 10, the Crown alleged that the applicant committed an indecent act with LA by touching her breasts over her clothing while EC was present. The evidence in support came not from LA but from EC.
Similarly, the Crown relied on evidence given by ST and OL as the basis for charge 45, which was that the applicant committed an indecent act with DS (by touching her breasts over her clothing) while ST and OL were present. But DS gave no direct evidence of this assault upon her.
In his charge, the trial judge noted that the evidence relied on by the prosecution as the basis for charge 10 was the evidence given by EC.[22] He did not mention that LA gave no evidence about this offence, or the significance, if any, of that fact.
[22]T 559, lines 5 to 9.
When addressing charge 45, his Honour directed the jury to the evidence of DS, and summarised it.[23] But he did not remind the jury that DS had given no evidence that she had been touched on the breasts. Nor did his Honour note, as he had for charge 10, that the prosecution relied on the evidence of the observations of the other complainants who were present to establish this offence. The judge did, however, give instructions about the elements of the charge of committing an indecent act by the touching of the victim’s breast.[24] The first of these was that there was a touching. His Honour reminded the jury that ‘[t]he prosecution must prove each of these elements beyond reasonable doubt.’[25]
[23]T 583, line 16 – 585 line 24.
[24]T 539.
[25]T 539, lines 17 to 18.
In my opinion, his Honour did not, in dealing with charges 10 and 45, exhibit any unfairness or lack of balance.
Comments by the trial judge
The applicant’s counsel acknowledged that trial judges are entitled to comment and that the comments made in this case could not be described as inflammatory. But he submitted that the proper course was as described in RPS v The Queen.[26] His Honour ought to have refrained from commenting on the facts beyond reminding the jury, when identifying the issues in dispute, of the arguments of counsel. In the context of an already complex case, in which it is said the jury were struggling, comments from the judge that could be seen to be encouraging the jury to accept the prosecutor’s arguments, or to disregard the defence arguments, contributed to a miscarriage of justice.
[26](2000) 199 CLR 620, 637 [42].
The respondent contends that these submissions are totally misleading. It is clear, when one reads his Honour’s comments in context, that the judge was not usurping the function of the jury. He gave the jury the standard warning, reminding them that they were the judges of the facts and, in contradistinction to directions of law, they were not bound by any comment he might make about the evidence. The jury therefore knew that they were entitled to disregard such comments if in their opinion they were not of assistance. And the exclusive role of the jury as the finders of fact was reiterated when each of the comments impugned by the applicant were made. So, for example, his Honour’s remarks about EC, when read in full, were as follows:
My impression of her was that she was confident and straight forward. Your impression may have been entirely different, and let me make clear to you it is your impression that counts, not mine.[27]
[27]T 538, lines 6 to 9 (emphasis added).
The full text of his Honour’s comments about the prior inconsistent statement made by LA shows that he was not seeking to impose his own view about the importance of it or to detract from the jury’s role. So, as his Honour told the jury, the text sent by LA to a friend saying she was not involved:
… might be considered an inconsistent statement as well, although you may think that that does not amount to very much, really, in the whole scheme of things.[28]
[28]T 562, lines 13 to 16 (emphasis added).
Finally, the comment about the argument put by the prosecutor is similarly qualified:
If you agree with [the prosecutor] about this and you might think it hard not to, but that is a matter for you … .[29]
[29]T 598, lines 11 to 12 (emphasis added).
In my view, none of these bases for proposed ground 2 are arguable. It follows that the ground itself is not made out.
Election – Proposed ground 3 (directions about a juror under pressure and taking home an exhibit)
On 31 May 2011, on the morning of the third day of the jury’s deliberations, his Honour informed counsel of the following information provided by his tipstaff:
The first is this, that about half past four yesterday afternoon one of the jurors waited to speak to my tipstaff … . This juror spoke to [the tipstaff]. He said that a problem had arisen in the jury room as a juror wanted to take some evidence home. He told [the tipstaff] that the juror had said, ‘If I don’t take it home we’ll be here for another week,’ and the juror said that he thought that he should tell [the tipstaff] about that. So that’s the first matter.
The second matter is this, that this morning a juror was waiting I think in the area outside where they usually gather in the morning at about 9.20. [The tipstaff] was told that she was there and that she was upset and distressed. He went to see her. She was upset and distressed. He said to her, ‘Good morning.’ She did not respond. Another juror was waiting in the same area. That juror said to [the tipstaff], ‘She’s upset and she feels under pressure.’
[The tipstaff] put her in a separate room, where I understand she is now. He said that she was crying and distressed and she said to him, ‘It’s not fair. I’m under pressure.’ He told her to stay there and that he would get her a drink of water and tissues and that’s where she’s remained to this point of time.[30]
[30]T 657, line 12 to T 658, line 5.
It was not clear whether or not any document had in fact been taken home by any juror. Nor was it clear that the two incidents were related. In deciding not to inquire of the jury about the suggestion one of their number asked to take a document home, his Honour observed that he could understand a conscientious desire to do so and noted:
… they've all taken the oath, the separation oath, and at the moment I don't see a reason to inquire of any of them as to whether they've been in breach of their oath.[31]
[31]T 662, lines 24 to 27.
His Honour then asked the juror who had been upset to come into the courtroom. When he indicated that he had been told that she had been upset and distressed, the following exchange occurred:
JUROR: I was just a bit confused.
HIS HONOUR: And what I really need to have an understanding of is whether you're capable of going on and acting as a juror, continuing - - -
JUROR:I just want some time just to just sit there and go through the documents myself. I think that would help without sort of being asked a lot of questions.
After clarifying that this was the ‘pressure’ referred to, the judge asked whether it would help if the remainder of the jury were told that ‘you all need to take the time that you require and each of the jurors has to listen to the views of the other jurors’. The juror, in reply, confirmed that she was able to continue working as a juror. She also said: ‘I don't really want to make a fuss.’
The applicant says that his Honour should have reminded the jury that their deliberations were to take place only when they were together in the jury room. Further, ‘in the face of evidence that the jury’s deliberations may have miscarried, his Honour ought to have taken steps to minimize any impact and prevent its recurrence.’
The respondent points out that there was no evidence that the jury’s deliberations miscarried; the applicant’s argument relies on speculation. Jurors do get upset from time to time. But that does not mean that the jury has become dysfunctional.
I agree. His Honour’s handling of both of these situations was appropriate. All the available information, including the remarks reported to the tipstaff by one of the jurors, suggests that the jurors were conscientiously performing their duties and keeping in mind the standard warnings against discussing the matter otherwise than when all jurors were together in the jury room. I would refuse leave to appeal on this ground.
Election – Proposed ground 4 (refusal to discharge the jury)
On 18 May 2011, the sixth day of hearing, following a break in the re-examination of the father of TH, the jury asked a question: ‘Do we (jury) see or hear witness [sic] impact statements from family members?’ Without consulting counsel, his Honour responded immediately:
The answer, members of the jury, [is] no. You've heard the evidence of the witnesses and you've heard the evidence of various parents yesterday and today and that's the evidence that you [are hearing], so the answer to your question is no - you do not hear witness impact statements. You hear the evidence that you've heard and are yet to hear, and ultimately you have to make a decision on the basis of the evidence that's given in the court.[32]
[32]T 236, lines 6 to 13.
Later that day defence counsel applied to have the jury discharged on the basis that the question about access to ‘witness impact statements’ – which counsel took to mean victim impact statements – showed that the jury had made up their minds about the appellant, even before the record of interview had been put to them, let alone the defence case had been heard. The result, it was submitted, was that the appellant could not expect to get a fair trial from this jury.[33] His Honour declined to grant the application, saying:
It's a single question [which] doesn’t necessarily indicate what's in the mind of all of the jurors. It may be just a question that one of the jurors had an interest in. I don’t think it's appropriate to enquire of them any more about it. I don’t think it indicates a need, much less a high degree of need for them to be discharged.[34]
[33]T 250-251.
[34]T 252, line 28 to T 253, line 2.
On 31 May 2011, following the incidents with the distressed juror and the reporting of the wish of one juror to take evidence home, defence counsel again applied for the discharge of the jury. He submitted that these two incidents demonstrated that there was the possibility that two of the jurors were unable to discharge their functions as jurors. Again, his Honour declined to grant the application, pointing out that the distressed juror had been asked whether she could continue, and had said she could. No application had been made to discharge that juror. Nor was there any basis to go behind the separation oath or affirmation taken by the jurors. His Honour made the following remarks:
These jurors have a demanding task and the fact that they’ve taken two days to this point of time, day 15 of the trial, seems to me to be a strong indication that they’re going about the task that you and [the prosecutor] and I told them they should go about, that is, to consider each charge separately and the evidence that applies to that charge.
Now, we know because we’ve had to do it that that’s a difficult task, because there are seven interviews and there are seven lots of cross-examination in the special hearings. The interviews don’t always proceed in a chronological manner, so the task of evaluation and assessment of the evidence is not straightforward. So it’s not surprising that jurors, some jurors, would be struggling and feeling the pressure. It’s the task that they have that carries that with it.[35]
[35]T 672, lines 13 to 28.
In my view, his Honour dealt with both applications for discharge appropriately. I do not accept the submission that the jury, or at least some individual jurors, were unable to discharge their duty to return a true verdict according to the evidence. In any event, his Honour was much better placed than this Court to make an accurate evaluation of these things. He was satisfied that the jury was conscientiously working through the issues and evidence presented to them. This Court should be slow to disagree – let alone to disagree to the extent of concluding that there was a high degree of necessity that the jury be discharged. I would not grant leave to appeal on this ground.
The result is that, in my opinion, the appeal against conviction on the charge of threatening to kill should succeed, but the applications for leave to appeal against conviction should be refused. The sentence imposed on charge 52 was six months’ imprisonment to be served concurrently. The consequence of allowing the appeal against conviction on this ground is that (given that, for the reasons set out below, the appeal against sentence is to be dismissed) there is no change to the total effective sentence to be served or the non-parole period declared.
Appeal against sentence
Bongiorno JA granted leave to appeal against sentence on the following ground:
The sentencing Judge erred by failing to accord to the applicant procedural fairness in refusing the application made by the applicant’s counsel for the adjournment of the plea to enable the applicant to obtain medical and psychological evidence to place before the Court.
The applicant also sought leave to pursue a ground raising manifest excess in the following terms:
The individual sentences imposed on charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 16, 18, 20, 22, 23, 25, 27, 29, 30, 31, 32, 34, 36, 38, 39, 43, 44, 45, 48, 49, 50 and 51, the orders for cumulation of sentence and the non-parole period are manifestly excessive in all the circumstances.
Bongiorno JA referred this ground to this Court on the basis that the question of manifest excess will be ‘inextricably bound up with matters which might be able to be put in mitigation arising from the medical evidence which it is sought to produce.’
Grounds 1 and 2 – refusal to adjourn the plea, and manifest excess
The plea proceeded on 1 June 2011, the day following the jury verdicts. Defence counsel applied to begin the plea that day, but asked that it be then adjourned so that reports about the appellant’s physical and mental health could be obtained. Given that the Crown referred his Honour to the ‘serious offender’ provisions in the Sentencing Act 1991, and proffered a sentencing range of 16 to 18 years’ imprisonment for a man who was to reach his 71st birthday on 2 July 2011, it was clear that the appellant might die in jail. This is necessarily a factor to be taken into account when sentencing, although it is by no means necessarily determinative of the sentence ultimately imposed. And considerations of the health of the offender, together with the impact this might have on the hardship of incarceration upon an aged prisoner, likewise could not be avoided – although in the end the sentence must be one which appropriately reflects the criminality of the offence or offences when considered in the context of all the relevant sentencing factors.
In declining to adjourn the plea, his Honour said that he would take into account when sentencing the fact that the appellant had had extensive heart bypass surgery, including the insertion of stents, and that he was suffering from an enlarged prostate. And, the judge continued, ‘there is a real possibility, indeed a probability, that he will spend the remaining portion of his life in prison, whatever sentence he receives, whether it's at the magnitude that the prosecution submits or the substantial term’ that counsel for the appellant accepts is necessary.[36] After noting that this was the appellant’s third trial for serious sexual offences against children,[37] his Honour expressed the view that:
He has long passed the necessary criteria for being a serious sexual offender and the law is explicit and clear that in the case of a serious sexual offender, putting to one side for the moment the obvious necessity for there to be a just punishment which acknowledges the wrong that he's done to a number of people, but the law is explicit and clear that the protection of the community is the paramount purpose to consider in the sentence imposed. [The prosecutor] has submitted it's not necessary for there to be a disproportionate sentence. That is, disproportionate to the gravity of the offences. No doubt that's because the offences are of such gravity that the proper sentence to be imposed with respect to them will result in a substantial term of imprisonment. It's a long way of saying to you I suppose that I have difficulty seeing the force of your submission that a medical report or a psychological report should be obtained.[38]
[36]T 718, lines 25 to 30.
[37]See R v [MJ] [2000] VSCA 173 and R v [MJ] (No 3) (2004) 11 VR 215.
[38]T 719, lines 9 to 26.
It is, as the Crown conceded, reasonably arguable that his Honour denied the appellant procedural fairness by refusing the adjournment. I accept that the appellant’s criminality, as established by the verdicts of the jury, and his status as a serious sex offender, indicated an extended term of imprisonment; and this was so even given that the combination of his age and his poor health might result in his death before release. But the prison authorities would need all the information about his health that they could obtain, and so the delay resulting from an adjournment while that information, or some of it, was gathered, would not be wasted; and it could not be said that, faced with an offender in the appellant’s position, medical evidence would inevitably be irrelevant to the sentencing discretion.
Be this as it may, this Court now has before it a medical report prepared by a highly qualified general practitioner, Dr Robert Weiss. No psychological or psychiatric opinion has been obtained, but Dr Weiss touches upon the appellant’s mental health. In these circumstances, the real issue is whether, given the fresh material, a different sentence should be imposed: s 281(1) Criminal Procedure Act 2009.
Following an interview with, and an examination of, the appellant, Dr Weiss concluded that he ‘suffers from a number of severe and serious life-threatening conditions.’ Even were he to receive optimal medical treatment, these conditions ‘will result in a very limited life expectancy’. Dr Weiss, however, assessed his current treatment in prison as inadequate. Under the heading ‘Impression and comments’, the final paragraphs of Dr Weiss’ report read:
I believe [the appellant] suffers from a number of severe and serious life-threatening conditions as described above. These conditions even if he were receiving optimal medical treatment will result in a very limited life expectancy. He also has a number of other significant untreated conditions – peripheral vascular disease, hypotensive syncope, massive prostatomegaly and malnutrition. I have no doubt these, and his known medical conditions are being made worse by the conditions of his incarceration – alleged bullying and standover tactics by younger prisoners denying appropriate access to medication and adequate nutrition.
His life expectancy in my opinion is six months to two years if the current state of affairs with regards to his health continues.
This report must be of concern to the prison authorities. This Court is in no position to reach a fully informed conclusion about the appellant’s health or the care accorded to him; but if it is the fact that he does not have access to appropriate medication, and is malnourished, the State’s duty of care to him may not be being met. What follows assumes that the position will (to the extent that this has not been done already) be thoroughly investigated, and all necessary and proportionate remedial steps taken.
His Honour referred in his reasons for sentence to the ‘significant risk’ of the appellant dying in jail.[39] Had the adjournment been granted, and his Honour read the report presented by Dr Weiss, the expression ‘significant risk’ would probably have been amended to ‘near certainty’. Such is, it seems to me, the only conclusion open on the evidence now available.
[39]Sentencing remarks, [35].
A sentencing court must therefore proceed on the basis that the appellant will live with the daily knowledge that he will (almost inevitably) die in jail. The difficulty for the appellant, however, is that he is a serious sexual offender, and the protection of the community from him must in his case be the primary purpose for
which any sentence is imposed.[40] And he has demonstrated that, even in old age, he presents a very real danger to young females.
[40]Sentencing Act 1991, s 6D.
In these circumstances, it seems to me that the sentences imposed by his Honour are justified. It is clear that neither age nor the likelihood that an offender will die before being released are justifications for an inappropriately lenient sentence. It is also clear that no appropriate sentence would in this case open the way for a possible release before the appellant’s death.
That, of course, is no reason to fail to examine the present sentences once a claim that they are manifestly excessive has been made. At the same time, such a claim is very difficult to make good.[41] It is not sufficient that the court hearing the appeal might have imposed a somewhat less severe penalty. The excess must be manifest. In my opinion, that claim cannot be made good in this case. The appellant remains a danger to the community. The criminality involved in his assaults on the victims was very high of itself. It also included his being not merely complicit in, but responsible for, their missing school, and their under-age consumption of liquor and cigarettes. The appellant’s disregard for almost every aspect of their welfare, and his concern to satisfy his own selfish desires, was self-centred in the extreme. Given the seriousness and the number of charges of which he stands convicted, his appalling criminal history for similar offending, his lack of contrition and the need to protect the community, the individual sentences, the total effective sentence and the non-parole period were all, in my opinion, well within range.
[41]R v Stuttard [2006] VSCA 112, [26].
I would dismiss the appeal against sentence.
TATE JA:
I agree with Harper JA.
WILLIAMS AJA
I also agree.
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