McCray (a pseudonym) v The Queen
[2017] VSCA 340
•22 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0212
| DENNIS McCRAY (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 May 2017 |
| DATE OF FINAL SUBMISSIONS: | 6 October 2017 |
| DATE OF JUDGMENT: | 22 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 340 |
| JUDGMENT APPEALED FROM: | DPP v [McCray] (Unreported, County Court of Victoria, Judge Wischusen, 26 September 2016) |
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CRIMINAL LAW – Appeal – Sentence – Course of conduct charge – Incest – Victim was offender’s natural daughter (aged 8–10) – Sentence of five years’ imprisonment – Whether manifestly excessive – Whether findings as to number of incidents open at law and reasonably open on the evidence – Indecent assault – Sentence of two years’ imprisonment – Whether manifestly excessive – Serious assault – Victim was offender’s natural daughter (aged 4–6) – Leave to appeal refused – Criminal Procedure Act 2009 sch 1 cl 4A, Sentencing Act 1991 s 5(2F).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L Howson | Cinque Oakley Senior |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
CROUCHER AJA:
The applicant pleaded guilty to one charge of indecent assault and one charge of incest. He was sentenced to a total effective sentence of six years’ imprisonment, with a non-parole period of four years. He has now sought leave to appeal against sentence.
On 17 February 2017, Priest JA refused the application for leave. The applicant then elected to renew his application. As filed, the application relied on three grounds. On the hearing of the renewed application, one of the original grounds was abandoned and a new ground was added, by leave.
After the hearing of the renewed application, the parties were given leave to file further submissions in light of two recent High Court decisions, Chiro v The Queen[2] and Hamra v The Queen,[3] both handed down on 13 September 2017. In those submissions, the applicant sought to add a further ground of appeal.
[2](2017) 91 ALJR 974 (‘Chiro’).
[3](2017) 91 ALJR 1007 (‘Hamra’).
For reasons which follow, we would refuse the application to add the further ground of appeal and the application for leave to appeal.
Circumstances of the offending
The victim of the offending was the applicant’s biological daughter (‘H’). She was one of four children of the marriage. The applicant and H’s mother separated in 1988. Thereafter, H and her siblings had access visits with the applicant.
During an access visit, when H was aged between four and six, she was lying in the applicant’s bed. The applicant placed his erect penis high between her legs, just near her vagina, and started to move his erect penis in and out (charge 1, indecent assault).[4]
[4]The indictment charged that the indecent assault took place between 1 January 1988 and 31 December 1990.
Charge 2, incest, was a ‘course of conduct’ charge.[5] When H was aged eight, she stayed in the applicant’s bedroom during an access visit. The applicant gave her a massage on the back. Whilst he did so, he inserted his fingers into her vagina. H recalls his fingers being slippery. She pretended to be asleep. When she woke the next morning she noticed a jar of Vaseline on the bedside table. H recalled that the applicant inserted his fingers into her vagina a number of times thereafter, always preceded by a massage. As will be seen, the number of occurrences of this conduct was disputed on the plea.
[5]A course of conduct charge is ‘a charge for a relevant offence that involves more than one incident of the offence’: Criminal Procedure Act 2009 sch 1, cl 4A.
H did not make a complaint until May 2014, when she told her mother what had been done to her. On 24 May 2014, she disclosed the sexual abuse to other family members. The next day, members of the family confronted the applicant. He denied penetrating H with his penis, saying that he had ‘just touched [her] fanny’. When asked why he had behaved that way towards H, he said he was ‘sick’. In a later record of interview with police, the applicant admitted putting his penis between H’s thighs, but denied penile-vaginal penetration.
The applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Indecent assault
5y
2y
1y
2
Incest
25y
5y
Base
Total Effective Sentence:
6y
Non-Parole Period:
4y
Pre-Sentence detention:
39 days
Section 6AAA Statement:
8y with NPP of 6y
Other orders:
Life reporting under s 34 of the Sex Offenders Registration Act 2004.
Forensic sample under s 464ZF of the Crimes Act 1958.
Grounds 3 & 5: the ‘course of conduct’ charge
Proposed ground 3 is in these terms:
Ground 3: In respect to charge 2, it was not open to find that the incidents comprising the course of conduct:
a.were protracted over ‘almost two years’; and
b.that the incidents were ‘regular, but probably not more than monthly, and perhaps less so’.
Proposed ground 5 (which was raised in the applicant’s supplementary submissions) is in these terms:
Ground 5: The sentencing judge was constrained by the ‘elements’ or ‘actus reus’ admitted to by the applicant’s contested plea so that finding that more than two incidents occurred was in error.
In accordance with standard practice, the plea in mitigation was conducted on the basis of a prosecution summary of the facts. Reading from the summary, the prosecutor told the judge in relation to charge 2:
The complainant describes that the [applicant] engaged in this behaviour numerous amounts of time. Further, that she would visit the [applicant] every fortnight, and if he didn’t offend against her in this way on that fortnight, it may have been the following fortnight.
The prosecutor then read out the following passage from H’s evidence at committal (when she was being re-examined by the prosecutor):
Okay - - -?---But then didn’t use his penis? Is that what you’re saying?
Well, that’s the question I’m going to ask, yes?---Yes, that’s — yes, there was.
And how many times did that occur?---Quite a lot. Sorry, I don’t — yeah, numerous amounts of times.
You said to my learned friend when he asked you that you recall, I think you said about five times - - -?---Yes.
- - - that he had sexual intercourse, that is penile/vaginal sex with you?---Yes. Yes.
Compared to that sexual intercourse how many times did he put his finger in your vagina?---More than five times, quite — quite often. Sorry, I didn’t have a statistic but yeah, it was — we’d go there every fortnight and if it wasn’t that opportunity that fortnight it might have been the following fortnight so — I’m sorry I don’t have statistics it was whenever he could get the opportunity.[6]
[6]Emphasis added.
This passage was evidently read out at the request of defence counsel, who subsequently informed the judge that his purpose in having it read was ‘to try to get some indication as to frequency and number of that [incest] allegation’. Counsel submitted that the judge should sentence the applicant:
on the basis that it has happened … more than five times because that appears to be the most — the best way that she could characterise the conduct.
The judge responded as follows:
Well, it would be — because it reads to me it’s at least monthly.
There was then discussion about how often the applicant had had the opportunity to engage in the offending conduct. The judge said:
So that the sense of it seems to be there was less of [penile/vaginal penetration] than there was of digital penetration. … but, whatever it was, it was regularly.
Moreover, his Honour pointed out — and defence counsel accepted — that the applicant had pleaded guilty to digital penetration of H over the period of almost two years specified in the indictment.
In his sentencing remarks, the judge noted that there was ‘some controversy’ as to how frequently digital penetration had occurred in that period. His Honour then set out the relevant part of H’s evidence from the committal, and said:
In the end, counsel submitted that by that evidence what the complainant meant to convey was that the digital penetration occurred on perhaps five occasions. In my view, properly read, the five occasions was a reference to penile penetration (which is not the subject of these charges or this sentence) and the gist of her evidence was that the digital penetration was at least monthly.
In the end, counsel made no actual specific submission as to how many acts of penetration this course of conduct involved and I proceed to sentence you on the basis that they were numerous, certainly more than five, over a period of just less than two years and that they were regular but probably not more often than monthly and perhaps a little less so.
As to Charge 2 [incest], you are to be sentenced on the basis that the course of conduct involved repeated acts of digital penetration against your own daughter over that period of time when her care was entrusted to you alone on access visits, and at a time when she was between the ages of about eight and 10 years of age.[7]
[7]DPP v McCray (a pseudonym) (Unreported, County Court of Victoria, Judge Wischusen, 29 September 2016) [13]–[15] (emphasis added) (‘Reasons’).
Consideration
A ‘course of conduct charge’ is defined in cl 4A(1) of sch 1 to the Criminal Procedure Act 2009 as a ‘charge for a relevant offence that involves more than one incident of the offence’. The following parts of cl 4A are also relevant:
(8)The prosecution must prove beyond reasonable doubt that the incidents of an offence committed by the accused, taken together, amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter.
(9)However, to prove a course of conduct offence it is not necessary to prove an incident of the offence with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted only by that incident.
(10) Without limiting sub-cl (9), it is not necessary to prove—
(a)any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or
(b)that there were distinctive features differentiating any of the incidents; or
(c)the general circumstances of any particular incident.
(11)Without limiting cl 1(b), the particulars necessary to give reasonable information as to the nature of a course of conduct charge—
(a)must be determined having regard to—
(i)the fact that the charge is a course of conduct charge; and
(ii)the limitations contained in sub-cl (2); and
(iii)the fact that the various incidents of the offence are alleged to have occurred over a period of time; and
(b)need not include particulars of any specific incident of the offence, including its date, time, place, circumstances or occasion; and
(c)do not need to distinguish any specific incident of the offence from any other.
In turn, the Sentencing Act 1991 makes specific provision for sentencing an offender on a course of conduct charge. Section 5(2F) relevantly provides as follows:
(2F)In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge … a court—
(a)must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b)must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.
Note
If a jury finds a person guilty of a course of conduct charge, in making finding of facts relevant to sentencing the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced.
As noted earlier, the plea in mitigation proceeded on the basis of a document entitled ‘Summary of Prosecution Opening upon Plea’. Proceeding in this way is standard practice when an offender pleads guilty. Typically, the terms of the prosecution summary are agreed upon in the course of the negotiation which results in the entry of the plea. There may, however, be a particular issue on which agreement has not been reached, which means that the sentencing judge will have to decide the matter in a contested plea hearing.
In Formosa v The Queen,[8] Whelan JA (with whom Redlich and Osborn JJA agreed) set out the legal principles which apply on a contested plea hearing, as follows:
1.Conventionally, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.
2.It is standard practice to use the depositions and related exhibits as the basic materials.
3.Should either party seek to have the sentencing judge take any additional matter into account in passing sentence, it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it.
4.A contested factual assertion upon a plea must be proved by admissible evidence. There is, however, no requirement that the evidence should all have been given on oath, or that there should have been a prior opportunity for cross-examination.
5.A sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.[9]
[8](2012) 36 VR 679.
[9]Ibid 681 [8] (citations omitted).
In this case, the prosecution summary contained the following relevant statements:
(6)The complainant recalls that when she was eight years of age, when the Accused lived at the [relevant address], she stayed in his bedroom during an access visit at the Accused’s request. The Accused gave her a massage on the back. Whilst he did so, he then inserted fingers into her vagina. She recalls his fingers being slippery. She pretended to be asleep. When she woke the next morning she noticed a jar of Vaseline on the bedside table.
(7)The complainant recalls the Accused inserting his finger in similar circumstances to that alleged in charge 2 a number of times after that. She described that the way in which it occurred was always with a massage first and then the insertion of his fingers into her vagina.
(8)The complainant describes that the Accused engaged in this behaviour ‘numerous amount of times.’ Further that she would visit the Accused every fortnight and if he did not offend against her in this way on that fortnight, it may have been the following fortnight.[10]
[10]Emphasis added.
As is apparent from the extract of H’s evidence set out earlier, the highlighted statement was based on the evidence which she had given. Defence counsel informed the judge that, subject to two amendments which are not presently relevant, he accepted the accuracy of the summary.
Nevertheless, as we have noted, the prosecutor read out the passage from H’s evidence at defence counsel’s request. Counsel thus identified the question of the frequency of the incidents comprising the course of conduct charge as a matter requiring the judge’s determination. He then made his submissions as to what findings should be made. Importantly, the judge made clear immediately that he was likely to take a different view as to how the evidence should be read.
It was then for the judge to find the necessary facts, on the basis of the material placed before him. It may be accepted — although no submission to this effect was made on the plea — that his Honour needed to be satisfied beyond reasonable doubt of the number of incidents, since the greater the number the more serious the offending.
In our view, it was well open to his Honour to make the finding which he did. As can be seen from the extract from his Honour’s reasons, the key finding was that the acts of digital penetration ‘were numerous, certainly more than five, over a period of just less than two years and … were regular’.[11] His Honour made no definite finding about frequency, accepting that it was ‘perhaps a little less’ than monthly. These findings were squarely based on the statements in the prosecution opening, as elaborated by the extract from the evidence.
[11]See [16] above; Reasons [14].
As indicated earlier, after the decision on the application had been reserved, counsel for the applicant sought leave to file supplementary submissions with reference to the decisions of the High Court in Chiro and Hamra. Leave was granted and both applicant and respondent subsequently filed supplementary submissions. Proposed ground 5 was also addressed by both parties in those supplementary submissions.
Both of the High Court decisions concerned the South Australian offence of ‘persistent sexual exploitation of a child’. The offence is committed when a person ‘over a period of not less than three days, commits more than one act of sexual exploitation of a particular child’.[12] In Chiro, the appellant had been convicted of that offence. His ground of appeal, which the High Court majority upheld, was that following the jury’s guilty verdict, the judge should have asked the jury to ‘identify the underlying acts of “sexual exploitation” that were found to be proved’.[13] It was only by reference to those acts that sentence could be imposed.
[12]Criminal Law Consolidation Act 1935 (SA) s 50.
[13]Chiro (2017) ALJR 974, 978 [1].
Nothing decided in either case has any bearing on the issues raised by ground 3 or ground 5. First, the charge of persistent sexual exploitation there under consideration is quite different from the ‘course of conduct’ charge of incest under consideration here. As counsel for the respondent correctly pointed out, the corresponding offence under Victorian law at the time the course of conduct provisions were introduced was that created by s 47A of the Crimes Act 1958, persistent sexual abuse of a child.[14] Proof of that offence requires proof of three distinct occasions of offending. It is not sufficient for a complainant to give evidence of what would ‘typically or routinely occur’.[15]
[14]Substituted by Crimes Amendment (Sexual Offences) Act 2016 pt 2. The offence of ‘persistent sexual abuse of a child under the age of 16’ is now created by Crimes Act1958 s 49J.
[15]R v SLJ (2010) 24 VR 372, 375 [16]–[17]; see Crimes Act 1958 s 49J.
The purpose of introducing the ‘course of conduct’ offence was to permit the charging of more than one incident of the offence in circumstances where it might be difficult for a complainant to distinguish one act of abuse from another, given the repeated nature of the offending.[16] As can be seen from the provisions of clause 4A set out above, the usual evidentiary strictures have been lifted. In particular, clause 4A(10)(a) makes clear that it is ‘not necessary to prove any particular number of incidents of the offence’.
[16]Explanatory Memorandum, Crimes Amendment (Sexual Offences and Other Matters) Bill 2014, 13.
Secondly, while a course of conduct charge is a ‘charge for a relevant offence that involves more than one incident of the offence’, there is nothing in clause 4A, or elsewhere, that suggests that a conviction on such a charge, whether sustained by reason of a plea of guilty or a jury verdict, constrains a sentencing judge to find that no more than two incidents of the offence occurred, in a case where the evidence would support a finding of more than two incidents. On the contrary, the note to s 5(2F) of the Sentencing Act 1991 makes clear that it is for the judge to determine ‘the course of conduct in which the person engaged and by reference to which the person will be sentenced’.
Of course, it may well be that, in a given case, the evidence would sustain a finding of only the minimum two incidents necessary to make out such a charge. But that is not this case. Further, if an accused entered a plea of guilty to a course of conduct charge on the basis of an admission to only two incidents of an offence, when the Crown had understood that it was at liberty to prove more than two, the accused might have a basis for withdrawing that plea of guilty. But, again, that is not this case. Nor does the applicant seek to withdraw his plea.
Thirdly, and more fundamentally, unlike Chiro and Hamra, this case involved a plea of guilty. No question arose of interpreting the verdict of a jury or of asking the jury to specify the basis of their guilty verdict. Further, as is apparent from the conduct of the applicant’s case before the County Court, while this was a plea of guilty entered in circumstances where the number of incidents of the offence was a matter in dispute, it was not entered on the basis that the judge was constrained, as a matter of law or fact, to find no more than two incidents. Indeed, counsel was prepared to concede that the judge would sentence on the basis that there were ‘more than five [incidents of incest]’.
In the present case, as we have said, the judge was required to sentence on the basis of the agreed summary and the further submissions on the plea. It was for the judge, and the judge alone, to make the requisite findings of fact. For the reasons we have already given, the findings arrived at were open in law, on the evidence and in view of the way the plea was conducted on behalf of the applicant.
Manifest excess — charge 2
The applicant was given leave to add a proposed ground 4, in these terms:
Ground 4: The sentence of five years on count 2 does not accord with current sentencing practice, in particular where:
a. the applicant had no relevant prior convictions;[17]
b.the applicant’s plea was entered prior to DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 directing that sentencing for mid-range incest offending be adjusted upwards;
c.the applicant is ‘at low risk of reoffending’ and his ‘prospects of rehabilitation are good’;
d.the applicant pleaded guilty, in circumstances where the evidence came solely from the complainant, and was vague to the point where she could not distinguish between episodes, and otherwise lacked specificity; what strength the prosecution had was derived from the applicant’s disclosure of unknown guilt with respect to charge 1.
[17]On 2 August 1982, the applicant was convicted of theft for which he was sentenced to a good behaviour bond, and ordered to pay $150 adjourned to 7 February 1983.
This ground is without substance, in our view. By force of s 5(2F)(a) of the Sentencing Act 1991, the judge was obliged to impose a sentence that reflected ‘the totality of the offending that constitute[d] the course of conduct’. The only constraint on his Honour’s discretion, apart from the principle of totality itself and the other usual sentencing principles applicable to the case, was that expressed in s 5(2F)(b), namely, that the sentence must not exceed the maximum of 25 years’ imprisonment.
The offending conduct to which the applicant pleaded guilty was extremely serious. It was an egregious breach of the trust reposed in him, both by H and by her mother, and an abandonment of his responsibility to protect H and keep her safe from harm. It was also a grave exploitation of the power which a parent has over a child.[18] Even if the course of conduct had been confined to five occasions of digital penetration, as defence counsel argued, this sentence would have been moderate in the circumstances. Because the applicant was to be sentenced for multiple incidents of incest, albeit within the confines of a single maximum penalty, sentences imposed for single instances of incest could not provide any relevant guidance.
[18]Sutton (a pseudonym) v The Queen (2015) 47 VR 496, 505 [28].
Manifest excess — charge 1
The proposed ground 1 is in these terms:
The sentence on count 1 is manifestly excessive in particular where:
a.the charge came about as a result of the disclosure of unknown guilt;
b.the applicant had no relevant prior convictions;
c.the applicant is ‘at low risk of reoffending’ and his ‘prospects of rehabilitation are good’;
d.the offending was not protracted;
e.the offending was a single occurrence;
f.the applicant pleaded guilty;
g.there was ‘considerable delay’ between the applicant being interviewed and charges being filed, and a further four months’ delay between pleading guilty and sentence; and
h.the applicant’s health.
As noted earlier, the offence of indecent assault was committed when H was aged between four and six. According to the agreed facts, the applicant placed his erect penis high between H’s legs, just near her vagina and started to move it in and out. This was, in our view, an extremely serious example of indecent assault. It was, as Priest JA said in refusing leave, a form of simulated intercourse.[19]
[19]McCray (a pseudonym) v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 17 February 2017), [28].
There is, of course, a very wide range of conduct which can constitute indecent assault. Self-evidently, this was at the very serious end of the scale. The offending was made all the graver because, as with the incest offence, the applicant was in breach of trust and in dereliction of his parental duty. The fact that H was very young at the time this assault occurred further emphasises its seriousness.
Much was made in argument of the proposition that the applicant had voluntarily disclosed this conduct and, as a result, was entitled to a significant sentencing discount. Reliance was placed on the well-known authority of R v Ellis.[20] The Crown, for its part, submitted that the relevant disclosure should be seen as an attempt on the applicant’s part to minimise his offending.
[20](1986) 6 NSWLR 603, 604.
The record of interview reveals that the interviewing police told the applicant that they wanted to talk to him about his ‘involvement’ with his daughter. When asked to tell them what happened, the applicant offered to give what he described as ‘the full story’. He said:
It was my turn to have the children. She’s slept in the double bed with me, and I put my penis between her legs but not in her vagina. I have never penetrated her vagina, ever.
When asked, ‘Is that all?’, the applicant replied, ‘That’s it.’ He maintained his denial of vaginal penetration throughout the interview, and for some time afterwards.
Subsequently, of course, the applicant pleaded guilty to a course of conduct charge of incest, comprising multiple incidents of vaginal penetration. In the circumstances, the disclosure of the indecent assault takes on a different character from other voluntary disclosures.
It is true that H herself had not described the conduct in question. The applicant’s disclosure evidently refreshed her memory. But this was not a case where the offender had come forward voluntarily to disclose offences which would otherwise have been unknown.[21] On the contrary, H had already confronted the applicant with her allegations and he knew, when interviewed, that police had just interviewed H. We agree with the Crown’s submission that the admission was an attempt to minimise the offending. The applicant was evidently hoping that, by making a prompt and specific admission and declaring that it was ‘the full story’, he might be able to limit the scope of any charges laid against him.
[21]DPP v CPD (2009) 22 VR 533, 541 [31].
At best, in our view, the applicant was entitled to a modest discount in recognition of the disclosure. Given the seriousness of the indecent assault, as described above, the sentence of two years’ imprisonment was well within range, as was the order for cumulation of 12 months. The contention of manifest excess is not reasonably arguable.
Conclusion
For these reasons the application for leave to appeal must be refused.
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