Mansfield v the Queen
[2013] VSCA 161
•25 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0178
| NEVILLE MANSFIELD |
| v |
| THE QUEEN |
---
| JUDGES | BUCHANAN, ASHLEY and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 May 2013 |
| DATE OF JUDGMENT | 25 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 161 |
| JUDGMENT APPEALED FROM | Unreported, County Court of Victoria at Wangaratta, Judge Harbison, Date of Sentence 23 January 2012 |
---
CRIMINAL LAW – Sexual offences – DNA evidence and other evidence linking the accused to the commission of the crimes sufficient to establish guilt.
CRIMINAL LAW – Sentence – Error in maximum penalty – Applicant re-sentenced on charges affected by the error.
---
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Lewenberg & Lewenberg Solicitors |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
Early in the morning of 7 April 1993, an intruder entered a house in Shepparton. The intruder was heavily disguised, having wrapped material around his head with a tea towel worn over his face.
Inside the house were a 37 year old mother, her 11 year old daughter and her six year old son and a 69 year old babysitter.
Upon entering the house, the intruder grabbed the son in a headlock and held a knife to his throat, saying to the mother: ‘Do as you are told or he will be hurt. I will slit his throat.’
The mother attempted to persuade the intruder to release her son, and the intruder eventually did so. Upon releasing the son, the intruder demanded money from the mother and the babysitter and was given money by both women. The intruder then directed the four occupants to the master bedroom, where he demanded they sit on the bed alongside one another and tell him their names. He bound and gagged each of them.
At one stage, the babysitter complained about how tightly the intruder had tied her hands together. The intruder told the mother, ‘Tell grandma to shut up,’ and then asked the babysitter, ‘What is better, having your hands tied or having your throat slit?’ When the mother pleaded with the intruder not to gag her son, the intruder replied: ‘Would you rather this or for me to slit his throat?’
The telephone rang and the intruder instructed the mother to tell the caller that she was having car troubles and would not be at work for an hour.
The intruder took the mother from the bedroom into the kitchen, where he cut open the front of her cardigan and shirt exposing her left breast. The mother pleaded with the intruder not to rape her, to which he replied: ‘Shut up, would you rather have your throat slit?’
The intruder then cut the mother’s pantyhose and underwear with a knife and pushed her on to the floor. He ran the knife across her stomach and throat and said, ‘Feel how sharp it is, I could kill you with this’.
The intruder proceeded to rape the mother digitally, orally and with his penis.
During the course of the police investigation, a DNA swab from the victim‘s vagina revealed a sperm fragment containing DNA. In 2007 the applicant was required to provide a DNA sample to the Queensland police. Subsequently, the Victorian police compared this sample with the sample obtained from the victim’s vagina. The DNA sample was found to match.
On 24 August 2009 the applicant was arrested and charged with a number of offences.
After a trial in the County Court, the applicant was convicted on each of the charges on which he was arraigned. A plea was conducted and the applicant was sentenced for a term of five years on each of four charges of rape (charges 1, 2, 3 and 5), for a term of 6 years on one charge of rape (charge 4), for a term of 3 years on a charge of aggravated burglary (charge 6), for a term of 4 years on each of charges 7 and 10, the charges of false imprisonment of the mother and the babysitter, for a term of 6 years on each of 8 and 9, the charges of false imprisonment of the children, for a term of 5 years on each of two charges of threat to kill (charges 11 and 14), for a term of 6 years on one charge of threat to kill (charge 13), for a term of 1 year on each of two charges of theft (charges 16 and 17) and for a term of 2 years on a charge of indecent assault (charge 15). With a measure of cumulation, a total effective sentence of 16 years’ imprisonment was produced and a minimum term of 12 years’ imprisonment was fixed.
The applicant seeks leave to appeal against the conviction and sentence.
Significance of the DNA evidence
The sole ground of the application for leave to appeal against conviction is that the verdict is unsafe and unsatisfactory. It was submitted that the applicant could not be convicted on the basis of DNA evidence alone, that the strength of the DNA evidence was weakened by the possibility of the offender being a brother of the applicant and that the other evidence relied upon by the Crown to establish its circumstantial case provided only a slight nexus between the applicant and the crime. Accordingly, so it was said, the Crown evidence was in such a state that the jury could not exclude other hypotheses consistent with the applicant’s innocence.
Maxwell Jones, a forensic scientist, gave evidence that he compared the DNA profile or print derived from the sample taken from the complainant’s vagina with the profile of the sample taken from the applicant.[1] He said, ‘there was what we call a full DNA profile match.’ The witness then calculated the odds that the DNA in the sperm fraction originated from the applicant or an unknown person employing a population genetics formula to determine the probability that a randomly selected individual would have possessed the same DNA sequences of what are called common polymorphic sites. Unlike a finger print, a DNA profiling match is not unique. He said:
It’s estimated to be at least eight trillion two hundred billion times more likely you would get a DNA profile match if [the applicant] was a source of the DNA, compared to the possibility that a random person with the same profile was a source of the DNA profile.
The witness was referring to a random person in the Australian Caucasian population. He said that if the Victorian Aboriginal population was used as a comparison, it was 310 billion times more likely that the applicant was the source of the DNA than another person in the Victorian Aboriginal population. In Mr Jones’ opinion, the relevant comparison was with the Australian Caucasian population for it was not known that the offender was a member of the aboriginal population.
[1]The technique of DNA profiling was described in R v Lucas [1992] 2 VR 109, 110-2 and Tran v R (1990) 50 A Crim R 233, 234.
In his evidence-in-chief Mr Jones said that the DNA of identical twins was exactly the same and that two brothers ‘would have a very similar DNA.’. In cross-examination, Mr Jones said that the likelihood of a source of the DNA being a brother of the applicant would be ‘significantly smaller’, but ‘it could still be a very large number’. Mr Jones was not asked what that number was. Witnesses who knew the applicant in Shepparton said that the applicant had brothers in the Shepparton area.
I think that at least in some cases there is substance in the contention that it would be dangerous to base a conviction on DNA evidence alone. In R v Doheny and Adams[2] Phillips LJ said:
… if one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the Defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.[3]
[2][1997] 1 Cr App R 369, 373.
[3]See also R v Pantoja (1996) 88 A Crim R 554; R v Fletcher [1998] 2 Qd R 437, 441. See, however, R v Forbes [2009] ACTCA 10, in which the ACT Court of Appeal rejected the contention that there was a principle or rule that, by its nature, DNA evidence alone could not establish guilt beyond reasonable doubt.
On the other hand, in a particular case it is possible that the number of the odds favouring the conclusion that the accused was the offender may be so large that it can properly found a conclusion beyond reasonable doubt. I do not stay to resolve that question.[4]
[4]See Forbes v R [2010] HCATrans 120, R v Rowe [2004] SASC 427, R v Gum [2007] SASC 311 and R v Juric [2003] VSC 382, cases which suggest that a conviction may be based upon DNA evidence alone.
Generally, the significance of DNA evidence depends upon the existence and nature of other evidence linking the accused to the commission of the crime. As Phillips LJ said in Doheny and Adams:
The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant’s guilt.
In the present case, the trial judge told the jury:
[E]ven if you accept Mr Jones’ evidence as to the DNA evidence, that does not necessarily mean that [the applicant] must be guilty. The DNA evidence is just one piece of circumstantial evidence … it is important also that you recognise the limitations of DNA evidence. People sometimes think that DNA evidence can prove whether a person has committed an offence. As I think will be clear to you by now, DNA evidence can never establish a person’s guilt. All it can do, even at whatever calculation, is to prove that Mr Mansfield could have been the person who left the sample … It cannot prove that he definitely was that person.
There was in fact other evidence linking the applicant to the commission of the crimes. There was uncontested evidence that the applicant was in Shepparton on the day the crimes were committed. A number of witnesses described the offender. The offender wore a moustache. The applicant wore a moustache from time to time, although there was no evidence he wore a moustache on 7 April 1993. The offender had brown eyes and dark hair and his height was mid five feet. The applicant had dark hair and was five feet eight inches tall.
No attack was made by counsel for the applicant upon the matching of the samples or the statistical odds calculated by Mr Jones. The issue was confined to the significance of that evidence. Counsel for the applicant placed emphasis upon the possibility that a brother of the applicant may have been in the Shepparton area and also had an opportunity to commit the crimes. While the evidence was that two brothers would have a very similar DNA, Mr Jones’ evidence was also that their DNA would clearly still be different. Mr Jones said that, ‘there is greater similarity between those two children than there would be amongst two random people’. He said however, that only identical twins shared the same DNA.
There was evidence that the applicant had brothers, but not that he had an identical twin brother. The evidence of Mr Jones that the likelihood ratio between the applicant’s DNA has estimated against a brother could still be a very large number was not challenged or explored by defence counsel. In re-examination, Mr Jones said that there was nothing put to him in cross-examination which altered his view that the calculations of odds constituted extremely strong evidence for the proposition that the major component of DNA detected in the sample originated from the applicant. There was no evidence that a brother of the applicant was in Shepparton on the day on which the crimes were committed, nor was there any evidence of a physical resemblance between any of the applicant’s brothers and the person who committed the offences. There was no evidence as to the age or size of any of the applicant’s brothers nor was there evidence that any of them ever wore a moustache.
I do not consider that the jury was obliged to find that it was a reasonable hypothesis that a brother of the applicant committed the crimes. Further, I think that the evidence of the nexus between the applicant and the crimes together with the DNA evidence was sufficient to establish beyond reasonable doubt that the applicant was the offender.
For the foregoing reasons I am of the opinion that the only ground of the application for leave to appeal against conviction fails.
Sentence
The sole ground of the application for leave to appeal against the sentence is that the sentencing discretion miscarried as a result of the sentencing judge proceeding to sentence the applicant on the basis that the maximum penalty for the offence of making a threat to kill was 10 years’ imprisonment. The maximum sentence was in fact 5 years’ imprisonment.
The respondent concedes that the error complained of was made and that as the mistake affected the decision of the sentencing judge, the sentencing discretion was re-opened.
Counsel for the respondent also pointed out that the sentencing judge mistakenly thought that the maximum sentence for unlawful imprisonment was 10 years’ imprisonment, whereas it was a common law offence for which there was no statutory penalty. If anything, this mistake operated to the advantage of the applicant. It is hardly surprising that counsel for the applicant confined his case to the sentences imposed in respect of the charges of false imprisonment and the orders for cumulation.
It is necessary to describe the applicant’s personal circumstances.
The applicant is aged 51 years.
The applicant is of aboriginal descent. He was brought up in the Shepparton area. His childhood was deprived in that from the age of five or six years, the applicant was on several occasions placed in the care of the State or with foster parents. The applicant’s father died when the applicant was eight or nine years’ old. He had limited contact with his mother and with his siblings.
The applicant had 17 prior convictions from eight court appearances, principally convictions for burglary and theft. The sentencing judge said, however: ‘You have not been involved in significant criminal activity’. There were no prior convictions for sexual offences or violent offences save for a conviction for assault. The applicant has only been employed as a labourer. He has no skills or qualifications.
The applicant formed three significant relationships, having three children with one woman and one child with another.
It appeared from medical records that the applicant suffered from heart disease, stress related anxiety and possibly depression. The sentencing judge accepted that incarceration would increase the likelihood of the applicant experiencing cardiac problems.
The applicant was sentenced as a serious sexual offender in respect of three rape charges.
Plainly the exercise of the sentencing discretion did miscarry: the sentences imposed on the charges of rape were inadequate and the sentences imposed on the charges of threat to kill were excessive. Indeed, the sentences on two of the charges of threat to kill exceeded the statutory maximum sentence. Counsel for the respondent sought to exploit these defects by contending that the errors he conceded were made infected the entire sentencing exercise, thereby enabling a review of the total effective sentence and all its component parts.
The respondent’s submission faces the difficulty that the Director has not appealed or sought leave to appeal out of time against the sentences he now contends are manifestly inadequate. If an appeal is allowed in respect of a sentence, the applicant falls to be re-sentenced for that offence only, although the re-sentencing exercise includes any consequential orders for cumulation or concurrency and also an order fixing a non-parole period.[5] Accordingly, I think it is necessary to re-sentence the applicant on the charges of threat to kill and to revisit the orders for cumulation and the non-parole period.
[5]See Ludeman v R (2010) 208 A Crim R 298.
Viewed overall, the applicant’s actions represented serious examples of the offences. The applicant brutally raped a woman in her own home. He terrorised the victims, two very young children, their mother and a woman in her 60s. The offending was protracted and cruel. Denunciation of the crimes and general deterrence were important sentencing considerations. On the other hand, some 19 years elapsed between the commission of the offences and the sentence. Her Honour accepted that, ‘the changes in your personal circumstances over the last 18 years mean that you come before me as a different person to the person you were at the time of these offences.’
I would confirm the sentences imposed in the Court below save for the sentences on making threats to kill. I would re-sentence the applicant to be imprisoned for a term of 2 years on each of charges 11 and 14 and for a term of 3 years on charge 13. I would order that 7 months of each of the sentences on
charges 1, 2, 3 and 5, 8 months of the sentence on charge 6, 5 months of the sentences on each of charges 7 to 10, 9 months of the sentences on each of charges 11, 13 and 14, 5 months of the sentence on charge 15 and 4 months of the sentences on each of charges 16 and 17 be cumulated on each other and on the sentence on count 4. The total effective sentence is 14 years’ imprisonment. I would fix a minimum term of 11 years’ imprisonment.
ASHLEY JA:
I agree in the reasons of Buchanan JA and with the orders which his Honour proposes.
I add only this: it was said by the Court of Appeal of the Australian Capital Territory in Forbes v The Queen[6] that likelihood ratio evidence – such as that given by the scientist, Mr Jones, in this proceeding – weighs one probability estimate against another; that is, the prosecution and defence hypotheses. But that does not mean, according to Forbes, and I take the evidence in the present case as an example, that only one person in eight trillion two hundred billion persons would have the DNA profile of the applicant and of the person a fragment of whose sperm was found in the complainant’s vagina. If the evidence which is adduced in a trial shows that to be an accurate statement of the effect of such evidence - the possible frequency with which a like DNA profile might be present being a different and smaller number - the risk that large numbers will seductively point to the guilt of an accused beyond what a true understanding of the numbers would justify will need to be carefully explained to the jury.
[6]Court of Appeal of ACT, 19 June 2009, unreported
COGHLAN JA:
I agree with Buchanan JA.
- - -
4
0