Miller v The Queen
[2011] VSCA 143
•2 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0351
| JOTHAM REUEL MILLER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and HARPER JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 2 May 2011 |
| DATE OF ORDERS | 2 May 2011 |
| DATE OF PUBLICATION OF REASONS FOR JUDGMENT | 16 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 143 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge McInerney, 17 September 2010) |
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Criminal law – Conviction – Whether submissions of counsel for Crown or judge’s comment infringed s 20(3), Evidence Act 2008 – Motive to lie – Whether Palmer direction (Palmer v The Queen (1998) 193 CLR 1) necessary – Whether evidence of representation under s 66(2)(b), Evidence Act 2008 admissible – Application for leave to appeal refused.
Criminal law – Sentence – Sexual offences committed on four occasions when applicant aged a little over 14 and aged 17 – Circumstances of offending evidenced applicant’s immaturity – Long delay between last offending and complaint – Sentence imposed some 16 years following offences – No subsequent offences – Strong evidence of rehabilitation – Appeal upheld – Appellant re-sentenced.
R v Boland (2007) 17 VR 300 applied.
| Appearances: | Counsel | Solicitors |
For the Applicant | Mr S Gillespie-Jones with Mrs E McKinnon | Michael Brugman |
| For the Respondent | Mr J D McArdle, QC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
On 2 May this year, the Court refused the applicant, Jotham Miller, leave to appeal against conviction. It granted him leave to appeal against sentence, allowed his appeal, and re-sentenced him. These are my reasons for joining in those orders.
The applicant, a man born 5 July 1975, and so now aged 35, was found guilty after trial in the County Court on four charges involving sexual offences. Two of the offences which he was found guilty were committed between October 1989 and June 1992. The two other offences were committed between October 1992 and March 1995. There was a single complainant, a woman born on 10 June 1982. The first two offences of which the applicant was found guilty were in fact committed, it seems, when he was a little over 14, and the other offences when he was aged about 17. The complainant was aged, at the respective times, approximately eight and ten.
Following the guilty verdict, and a plea hearing, the applicant was sentenced on 17 September 2010 as follows:
Charge 1
Sexual penetration of child under 10
18 months’ imprisonment
Charge 2
Sexual penetration of child under 10
18 months’ imprisonment
Charge 3
Attempted sexual penetration of child under 16
6 months’ imprisonment
Charge 5
Sexual penetration of child under 16
2 years’ imprisonment
The judge cumulated 3 months of each of the sentences on charges 1 and 2 on each other and on the sentence on charge 5. The total effective sentence was thus 2 years and 6 months’ imprisonment. The judge ordered that 22 months of that period be suspended for a period of 2 years. He made an ancillary order also.
Applications for leave to appeal
Now the applicant seeks leave to appeal against his conviction on the following grounds:
1.A miscarriage of justice occurred by reason of the prosecution comment that the silence arising from the failure of the accused to call his father, an eyewitness to the crime, was deafening; contrary to section 20(3) of the Evidence Act 2008.
2.A miscarriage of justice occurred by reason of the trial judge endorsing the comment that the silence arising from the failure of the accused to call his father, an eyewitness to the crime, was deafening contrary to section 20(3) of the Evidence Act 2008, by saying that the point was ‘rightly made’; a comment prohibited by to section 20(4) of the Evidence Act 2008 implying that the father was not called because he thought the applicant was guilty.
3.A miscarriage of justice occurred by reason of the trial judge endorsing the comment that the silence arising from the failure of the accused to call his father, an eyewitness to the crime, was deafening contrary to section 20(3) of the Evidence Act 2008, by saying that ‘we have only heard one side of it’; a comment prohibited by to section 20(2) of the Evidence Act 2008 implying that the applicant did not give evidence because the applicant was guilty of the count where the father was present.
4.A miscarriage of justice occurred by the failure to give a Palmer direction as to motive to lie.
5.The learned trial judge erred in ruling the evidence of Christine Parks was admissible pursuant to section 66(2)(b) of the Evidence Act 2008.
In the event that his application or appeal against conviction fails, he seeks leave to appeal against sentence on these grounds:
1.The sentencing judge erred by giving insufficient weight to the applicant’s age at the time of the offences and in particular, that he would have been sentenced as a child in respect of counts 1 and 2 and a young offender in respect of counts 3 and 5.
2In all the circumstances:
(a)the individual sentences of imprisonment on each count;
(b)the total effective sentence; and
(c)the immediate period of imprisonment order to serve;
are manifestly excessive.
Circumstances
In about 1986, in Queensland, the complainant and her four siblings were put into the foster care of the Miller family, which consisted of the father, the mother and two children, one of whom was the applicant.
The entire family group moved to Victoria in June 1989. Until October 1992, its members lived at one address. Then they moved elsewhere. One of the complainant’s siblings left the household in April 1995. The complainant and her other siblings left in June that year. In time, they returned to Queensland.
It can be seen that the times at which the alleged offending occurred were fixed by reference to the times of – (a) the family’s arrival in Victoria; (b) the family’s move to different premises in October 1992; and (c) the complainant leaving in June 1995.
The complainant gave evidence that the first offence took place when she was aged eight or nine. The applicant asked her if she knew about sex. She said ‘no’. He said he would show her. He laid her down on a bed, took his and her pants down, wrapped his penis in newspaper cling wrap, secured the wrap with elastic band so as to create a kind of homemade condom, and penetrated her. She asked him to stop. He refused. He told her that he would give her ‘a heap of picnic bars’ which he had in his room. He also told her that if she said anything she would get into a lot of trouble with his father, who would hit her.
The second offence occurred, on the complainant’s evidence, when she was playing in a cubby house area. The applicant came in. There was a verbal exchange between them. It arose out of the applicant seeing the complainant going through his brother’s things. He then told her to go into his room. Again he wrapped his penis in plastic wrapping, secured the wrap with an elastic band, and penetrated her. She told him that someone was coming, and he stopped. He warned her against saying anything, for it would make his father ‘get really mad and … he’d get angry’.
The complainant gave evidence that the third offence occurred in a granny flat which was part of the premises to which the family later moved. She and the applicant were playing. She pulled his pants down. He asked her if she would suck his penis, and pushed her head down towards it. She said ‘no’ and successfully resisted. She ran away and he chased her. He threw her down some stairs, causing injury to her wrist. There then followed a meeting with the parents, in which the complainant said that the applicant had pushed her down the stairs, whilst he denied it and claimed that she had jammed his fingers in a door.
Pausing, this incident gave rise to a charge of assault in addition to the charge of sexual offending. The jury acquitted the applicant of the assault charge.
The final offending, according to the complainant, again took place in the granny flat. She had been told to go there by Mrs Miller. The applicant was there. He asked her to lay on the bed, partly removed her pants, placed a plastic sandwich bag on his penis, secured it with an elastic band, and put his penis into her vagina. This had just happened when there was a noise. They realised that it was Mr Miller coming out of his study. The applicant jumped up and pushed her off the bed. The two of them were pulling up their pants when Mr Miller came in. He started ‘yelling things from the bible’ grabbed the applicant by the ear and pushed him out the door, then hit her two or three times on the back of the legs. He told her to pull up her pants, went and got Mrs Miller and then he sat them for one to one and a half hours, reading the bible. He told Mrs Miller what he had seen.
Further according to the complainant, after this last incident Mr Miller coached her as to what she could and could not say to a social worker who called from time to time. She was not to say anything about ‘things that happened with [the applicant]’.
Further still, according to the complainant, Mr Miller then held a family meeting, at which he stated that the applicant would be moving out for a while; and that happened.
In addition to her evidence concerning the charged offences, the complainant gave a good deal of evidence which was largely irrelevant. It was to the effect that life in the Miller family was marked by strictness, discipline and religion, the applicant’s father being mainly responsible for this situation.
It was put to the complainant in cross-examination that the applicant had not interfered with her. She rejected the puttage.
What might be described as bizarre aspects of the matter – the applicant allegedly putting cling wrap and, on another occasion, a sandwich bag onto his penis, and securing them with a rubber band before penetrating the complainant, were emphasised by the cross-examiner. They were so bizarre that the cross-examiner ran the risk of the jury accepting that they had occurred.
The cross-examiner did not directly challenge any aspect of the complainant’s account of the aftermath of the last incident – that is, of Mr Miller coming into the room, the subsequent prayer meeting, and the applicant being sent out of the home.
The complainant’s oldest sibling gave some evidence pertinent to that account:
I want to ask you about a time - you've mentioned generally about the praying that occurred and the learning of the Bible, was there ever a time when you noticed a different style or way in which praying was carried out whilst you were living at that address at Riegate Road?---It pretty much was only after dinner and that but I thought when they sent [the complainant] and [the applicant] downstairs to pray I did think that was a little strange, and other than that, no.
Now tell us about that occasion; do you remember when it was approximately in relation to when you say moved to Riegate Road or left Riegate Road?---It would have been probably in the middle of the time we were there, I can't actually say a date, but we were all asked to sit upstairs and [the complainant] and [the applicant] were going downstairs to pray with the Millers, we weren't told what exactly was happening or anything, except they were going to pray and that we had to sit upstairs and read a book or do something quietly and we weren't allowed to go downstairs.
and
Do you remember how long that session of praying went on for?---Probably about half an hour to an hour or so.
Did you speak to your sister … at all about that?---I did ask her but she wouldn't tell me and she kept telling me she didn't want to speak about it. At two to three months later I pushed her and kept asking her can she tell me and she turned around and said that she had been touched by [the applicant] and they went to pray to forgive him and that's all she's pretty much told me about it.
The witness gave a little evidence about the applicant moving out of the Miller home:
… [Was] there a time when [the applicant] left that household?---Yes, he did. He used to go to, like, live with friends and other people and then come back and then he would leave so he wasn't always at the house and he used to live with all different people as far as I know but I'm not sure who they are.
That evidence was clarified in cross-examination:
You were saying that [the applicant] used to go and live with friends and things like that but you can't recall when that was?---It was all throughout the time that we were there. Like, once he got older, about 16 or so, he would just go out because he would fight with Mr Miller a lot. So they would have a fight and he would go and stay somewhere else.
That was from about the age of 16; was it?---Yep. Maybe a bit older but around that age, yep.
The evidence of the witness as to the circumstances in which the applicant left the home from time to time was perhaps not consistent with the complainant’s account. But whether or not that was so was for the jury to decide.
The informant, Senior Constable Kershaw, gave evidence, in answer to the prosecutor’s question, that she believed that Mr Miller – that is, the applicant’s father – was overseas at the time of the trial.
The applicant was interviewed on 11 May 2009. At least in the form in which it was tendered in Court, what turned out to be the complainant’s account was put to him in extremely abbreviated form. So far as it was put, he denied it. None of the complainant’s account of the last incident, including the father’s involvement in its aftermath, was put to him. Asked, unrelated to any allegation made by the complainant, about cling wrap, he stated that papers delivered in that area at that time were not wrapped.
Complaint
The complainant first spoke to the police when she was aged about 26 – that is, in about 2008. The period of delay from last offending to time of formal complaint was thus about 14 years. She gave evidence, however, that she had complained to her mother when she was about 14, that she had discussed the matter with a brother every now and again over the years, with her other siblings to some extent, and more recently with an aunt.
The complainant was questioned about the circumstances in which she had reported the matter to the police:
You used cannabis for a number of years, did you?---Yes.
And under the influence of cannabis you told [your brother] and other people, I suppose, more and more details about these things that happened to you?---Yes.
All of this leads to the point that two years ago you decided to tell the police, did you?---Yes.
And was there something happening in your life that made it important for you to tell the police at that stage?---Not then, I'd been wanting to do it for a while.
Right, but there was nothing important happening, no?---No.
Had you discussed with your siblings, or anyone else for that matter, the possibility of getting compensation for these things that had happened to you?---They had mentioned it.
And they'd mentioned that prior to you reporting these matters to the police, hadn't they?---A number of years before, yes.
But that had been part of the discussions from time to time, had it?---Yes.
And these discussions had gone on over years, hadn't they?---Not over years, they - I hadn't - I don't - didn't have a lot to do with them, it was every now and again.
You did not have a lot to do with your siblings?---[My brother].
Was it only with Aaron that you discussed compensation?---I think [a sister] was there on one occasion.
It's just that, is it just by accident that you decide to report it two years ago; it just suddenly became the right time did it?---Family friend and auntie helped.
….
There was absolutely no outside influence on you, you just suddenly - you decide, well, now is the time?---Yes.
The complainant’s oldest sister, it will be recalled, gave evidence that the complainant had explained the unusual prayer meeting as being a response to the applicant having ‘touched’ her.
The complainant’s mother gave evidence. She rejected any suggestion that the complainant had told her at an early stage that the applicant had touched her.
Grounds 1-3
These grounds were argued together.
In his final address, the prosecutor made this submission:
Right at the end is the first time when my learned friend has actually suggested directly to her that these things didn't occur but you'll notice there's something missing. Barristers don't make up questions on their own. They get instructions. What happened, what didn't happen, ask questions accordingly. Nowhere in any of all those questions thrown at [the complainant] is there a single question to suggest that Mr Miller didn't walk in on them. Just as [the complainant] said happened to end that last count, Count 5. If that had been an issue, you would have heard about it and the silence about it is deafening. Not a single question to suggest Mr Miller didn't walk in on you and then, the aftermath of the prayer meeting and the like and [the applicant] moving out.
You can see how significant that is. She's challenged on everything. Not challenged on that issue. It's a matter for you but you might have thought that she withstood all the questioning about all the other topics with a certain amount of dignity. Although perhaps you might have noticed towards the end of it a touch of what you might well think was a very understandable development of irritation and what I say is that that should reinforce in your mind that she was telling you the truth and you know, what she says about Mr Miller walking in on them happened. It led to Mr Miller sprouting the sins of god, sort of speech and the bible and then the prayer session.
In his address, counsel for the applicant said this:
Can I say before I - and I had some arguments that I wanted to address to that but before I go to them can I say this to you; there was effectively a very generous criticism made of me by the learned trial prosecutor, and that is, my puttage at the end that [the complainant] had made things up didn't include a specific puttage to her that she had made up the aspect of Mr Miller walking in on them and it was very generously done because I think my learned friend prefaced it with some allowances and kindnesses. Can I say to you, I tried to make it clear that [the complainant] was not accepted as a witness of truth about any of the matters that she was dealing with, and if I fail to put a question like that, well, I may deserve some criticism that I've not put every question or maybe I do or maybe I don't, but it's certainly not meant to be a concession that was made and I'd invite you to not see it that way.
In his charge, the judge twice referred to the applicant’s father:
We have heard suggestions of allegations against Mr Miller of sexual and violent abuse of these children. Whether that happened or not - and I think the point probably is rightly made that we have only heard one side of it in this case - the fact is that is not what you are considering. You are not interested in Mr Miller senior, except in the sense of the foster situation providing a context.
and
[The prosecutor] said that she has been subjected to attack, to attack as to drugs, to allegations that these matters have come into her mind as a result of having drugs, and he submitted that one thing that was deafening insofar as this case is concerned is the silence of Mr Miller.
I do not think I made any comment about that, that is Mr Miller senior, but I think I might have already said that you cannot, in any case, make any suppositions. The simple fact is there is no evidence from Mr Miller here. There is no onus on the defence to call any witness and as I also said, had the prosecution not wanted to proceed with the case, as Mr Miller senior was overseas, then that was a matter for them, but they have proceeded and you should take cognisance of those facts when you are considering that comment from the learned prosecutor.
The gist of the submissions for the applicant was that the prosecutor had directed attention to the applicant’s failure to call his father as a witness to the last alleged offending. The prosecutor had been precluded from making such a submission. The judge had, in effect, endorsed it. His Honour’s comment that the jury had only ‘heard one side of it’ extended beyond the father not giving evidence, to the applicant himself. Both the prosecutor and the judge had infringed s 20(3) of the Evidence Act2008. Counsel referred also to passages in Dyers v The Queen.[1]
[1](2002) 210 CLR 285, 293 [12] (Gaudron and Hayne JJ), 305-306 [52] (Kirby J), and 328-329 [124]-[125] (Callinan J).
I considered that these grounds lacked merit. The prosecutor’s submission was directed to the failure by applicant’s counsel to cross-examine the complainant about the role which she alleged Mr Miller had played in the aftermath of the last offending. It was not a submission that the applicant should have called his father as a witness, still less than the applicant himself should have been expected to give evidence so as to challenge the conduct attributed by the complainant to the applicant’s father. It was, in short, a legitimate forensic point, which applicant’s counsel answered as best he could in his closing address.
The first passage in the charge in which the judge referred to the applicant’s father had nothing to do with the submission of the prosecutor now under consideration. It was a warning to the jury to put to one side allegations which had emerged incidentally in the evidence about conduct of the applicant’s father.
The second passage in the charge which I have set out was, it seems, a reference to the particular submission. It wrongly treated the prosecutor’s submission as having been that the father would have been expected to give evidence – implicitly, if his evidence could have assisted the applicant. But, having misunderstood the submission, the judge effectively instructed the jury that nothing was to be made of the fact that the father, who was overseas, had not given evidence.
I was unable to conclude that the judge’s inapt reference to the prosecutor’s submission – a matter about which no exception was taken below and a matter not identified in the submissions for the applicant in this Court – caused a miscarriage of justice.
I add only this: counsel for the applicant orally contended that the judge’s reference to the prosecutor’s submission showed that it had been (or might have been understood by the jury to have been) a submission – implicit, if not explicit - that the applicant had failed to call his father. To my mind, the contention was unsustainable. Despite the judge’s slip, the prosecutor’s language was quite clear.
Ground 4
I have set out the cross-examination, such as it was, addressing motive to lie. See [27] above. No allegation was squarely put.
In final address, the prosecutor addressed the matter very shortly. He did so in the context of the complainant having been extensively questioned so as to disclose aspects of a somewhat discreditable life. Thus:
You saw her being asked extensively, questions about everything that could be thrown at her conceivably. Suggestion whether she has applied for compensation - well, you heard what she ultimately said about that. She's got a right to apply for compensation by law - hasn't gone near it.
Counsel for the applicant said this in his closing address:
You're invited by my learned friend to take the view that she's now in Queensland, she's got no axe to grind, the issue of compensation has been raised in this case, and it's been raised, I'd suggest to you, legitimately, because she has talked about it; she does know about it, there's no time limit on her claiming it, I might say, she can wait until this matter is finished and she can make her claim then. She might not make a claim, she might not be interested in compensation. She might have other reasons for making these allegations. She might have no reason at all.
One of the problems in these type of cases, and particularly in this case, is this; the accused man can't know what motivates her and you can't ask him to explain why it is that she's making these allegations. There might be all sorts of things that affect her. It might be that she's been told about compensation but has some sort of plan, or that might have nothing to do with it. It might be that she carries scars from her childhood; she spent ten years, ten informative years living with the Millers, and it might be that she has regrets about her upbringing and that she has looked for an explanation, or that might have nothing to do with it; or it might be a million other things. He can't know. I can't know, and frankly, you can't know either, but it's not the way that you should approach the task. You can't approach this by saying, well, what reason would she have to make it up? Because we can - when I say ‘we’, the accused man and his representatives - we can never prove it, we can never establish it and largely we can't even explore it.
You might recall that there were those - there were the questions that I asked [the complainant’s mother] about the allegations that she'd made. Now that was a matter that was of limited relevance because it was really largely speculative, I suppose. I don't know that she's ever discussed her false reports with [the complainant]; maybe she has, maybe she hasn't. Maybe that's got nothing to do with it. I don't know, and I can't prove it.
Just because I can't prove a motive, just because my client can't tell you why she's doing this, it doesn't mean that she's right, and you shouldn't approach it on that basis.
The judge gave a standard direction with respect to the onus of proof. He said nothing about motive to lie. Counsel for the applicant did not seek a Palmer[2] direction, either before the charge, or by way of exception.
[2]Palmer v The Queen (1998) 193 CLR 1 [10]-[11].
There is no absolute requirement that a Palmer direction be given whenever a motive to lie is based in cross-examination of a complainant. That is so although it will often be appropriate. Here, motive to lie was raised in cross-examination in a half-hearted way; and in his final address counsel for the applicant rightly emphasised that it was not incumbent upon his client to establish that the complainant had any – or a particular – motive for telling a false story. The prosecutor in final address did not identify the particular cross-examination of the complainant in the context of motive to lie.
Counsel for the applicant submitted that, so far as it was pursued, the allegation of motive to lie was very weak. For that reason, he argued, it was the more important that a Palmer direction be given. I did not agree. The failure of trial counsel to seek such a direction was readily explicable. Such a direction might well have focussed attention on the weakness of the point, with the potential for deflecting the jury’s attention from the frontal attack on the complainant’s evidence.
Ground 5
The judge ruled, over objection, that the evidence of the complainant’s oldest sister that the complainant had explained the unusual prayer meeting as a response to the applicant having touched her was admissible under s 66(2)(b) of the Evidence Act 2008. He concluded that the events described by the sister, which eventually elicited the complainant’s explanation that the applicant had touched her, were capable of being understood to refer to the aftermath of the last offending described by the complainant. He concluded that the circumstances of that alleged offending had been so unusual that he could be satisfied the complainant’s representation of the ‘asserted fact’ was then ‘fresh in [her] memory’.
There was no debate, below, as to what was ‘the asserted fact’ about which the complainant had made a representation, ‘asserted fact’ being a term effectively defined by s 59(1) and (2) of the Evidence Act.
In this Court, counsel for the applicant submitted that – (a) the complainant was not available to give evidence about the asserted fact because she had given no evidence about the conversation described by her sister; (b) the complainant was not available to give evidence about the asserted fact because her evidence of what had happened did not coincide with the representation made to her sister; and (c) the occurrence of the asserted fact was not fresh in the complainant’s memory when she made the representation to her sister, because, in effect, any memory which she did have was of a different fact.
I considered that part (a) of that submission should be rejected. The complainant was available to give evidence about the asserted fact notwithstanding that neither in evidence-in-chief nor in cross-examination did she give any evidence about it.
Parts (b) and (c) of the argument turn upon the fact that the complainant gave evidence that the applicant had penetrated her; whereas the representation made to the sister was that the applicant had ‘touched’ her. Applicant’s counsel submitted that a representation will be inadmissible under s 66(2)(b) unless it precisely coincides with evidence given, or to be given, by the representator. He referred to no authority in support of that submission.
I concluded that those parts of the argument should be rejected. The ‘asserted fact’ was no doubt that the applicant had ‘touched’ (rather than penetrated) the complainant. An objection might have been taken that the asserted fact was irrelevant, for which reason the representation should not have been admitted. Alternatively, quite apart from the question of its prima facie admissibility, applicant’s counsel might have sought to invoke, for some reason, the power of the court to exclude evidence of the representation under Part 3.11 of the Act. Alternatively again, the asserted fact might have been said by applicant’s counsel to be a relevant, and thus admissible, representation of the fact asserted, this constituting evidence of the fact, and so contradicting the complainant’s evidence that she had been penetrated. Indeed, for that reason accused’s counsel might have wished to have evidence of the representation admitted. But in none of those situations would prima facie admissibility have depended upon a coincidence between the complainant’s viva voce evidence and the asserted fact. The complainant was available to give evidence about the asserted fact, even though it did not coincide with her viva voce evidence. Counsel for the applicant may have wished to cross-examine about the apparent inconsistency. As I pointed out in argument, the reading contended for by applicant’s counsel might well work to the disadvantage of an accused person in a particular case. The reading of s 66(2)(b) contended for by applicant’s counsel really required the phrase ‘evidence about an asserted fact’ to be read as ‘evidence consistent (or coincidental) with an asserted fact’ – which is not what the provision says.
In his charge, the judge treated the representation as if it was a complaint about relevant sexual misconduct, this bearing upon the complainant’s credit. He did not treat it as going in proof of a fact in issue. This course could perhaps be explained by the fact that the complainant’s evidence and the representation did not coincide. But that seems improbable. No one seems to have made anything of the apparent disconformity between the representation and the complainant’s evidence. All that applicant’s trial counsel did in final address was to submit that ‘the evidence of the conversation is something you would place absolutely no weight on whatsoever’.
The sentence application
I can explain the conclusions which I reached with respect to the sentence application quite shortly.
The applicant, as I have said, was probably just over 14 years of age when the first two instances of offending took place. Prior to his fourteenth birthday, the doli capax presumption would have applied.[3]
[3]R v ALH (2003) 6 VR 276, 281 [20] (Callaway JA), 281 [24] (Batt JA), 295-298 [82]-[87] (Cummins AJA).
Even though the presumption did not apply, it was still pertinent for the judge to very carefully consider the extent of the applicant’s culpability on each of the charges, most particularly charges 1 and 2.
His Honour stated that the applicant evidently knew how to have intercourse. But he accepted that the use of the home-made condom on the occasion of the first two instances of offending indicated a lack of knowledge and maturity on the part of the applicant. I agree. The same may be said with respect to the complainant’s evidence that on the occasion of first offending the applicant told her that he would give her ‘a heap of picnic bars which he had in his room.’
Had the complainant made timely complaint, the applicant would have been dealt with on charges 1 and 2 in the Children’s Court. Had there been timely complaint, he could have been dealt with, pursuant to s 32 of the Sentencing Act 1991 as a ‘young person’[4] in respect of the offences alleged by charges 3 and 5.
[4]That was the description of a person aged under 21 at time of sentence in the Sentencing Act between 1993 and 1997.
The judge stated in his sentencing remarks that applicant’s counsel had submitted that ‘clearly [the applicant] would have received a period in YTC as a result of [charges 1 and 2] at the time’. Applicant’s counsel had further submitted, his Honour noted, that a sentence in an adult prison could have resulted in respect of the later offences; and that ‘such YTC sentence would have been a maximum of some two to three years of confinement’. He noted also that the prosecutor had essentially accepted that scenario.
His Honour stated that ‘as of today … clearly he would have been dealt with under the Young Offender Provisions’; that ‘even at that time it is clear that he most likely would have been dealt with by a YTC sentence’; and that the applicant ‘would still have been subjected to deprivation of his liberty for these very serious offences’.
Pausing, it is perhaps not wholly clear whether the first two statements just noted were an intended paraphrase of counsel’s submissions, rather than his Honour’s expression of opinion.
In this Court, senior counsel for the Crown very fairly submitted that he did not share the view of counsel on the plea that the applicant, if found guilty of the first two offences when still a child, would necessarily have been subject to an order for incarceration. He directed our attention to the matters which the Children’s Court must have taken into account by reason of s 139 of the Children and Young Persons Act 1989. He referred also to ss 186(1)(c) and 188-190 of that Act. He noted also that the ‘serious sexual offender’ provisions of the Sentencing Act 1991 would not have had application,[5] had the applicant been sentenced either as a ‘child’ or as a ‘young person’. But the judge, he submitted, had apparently attached considerable weight to the position of trial counsel that the applicant would have been subject to incarceration had he been dealt with soon after the offending.
[5]They were first enacted by the Sentencing (Amendment) Act 1993, but not in their present form. They were amended by, inter alia, the Sentencing and Other Acts (Amendment) Act No 48/1997; and still do not apply to young offenders – see the definition of ‘serious sexual offender’ in s 6B(2) of the Sentencing Act1991.
Counsel appears to have assumed the correctness of the judge’s summary of trial counsel’s submissions. In fact, at least in part, the summary was not accurate. Applicant’s counsel had submitted that:
… in respect of Counts 1 and 2 … he would have been dealt with in the Children's Court. The maximum penalty even after cumulation would have been two years youth training centre. That is, no higher penalty could have been imposed - and ultimately - I'll have to come back to this but in my submission, it would be virtually inconceivable that he would have received anything like that penalty in circumstances where he would have been before court with no prior convictions …
In respect of the other two counts, Your Honour, it is the situation that it is a little bit more complicated in this way: Had he been 17 at the time of the commission of the offences, back then that would not have had him within Children's Court jurisdiction. He would have actually fallen into the adult jurisdiction. However, if, as a result of the legislation now in operation in respect of Children's Court matters, a 17 year old would now be dealt with as a child in respect of those matters. That is, the Children's Court jurisdiction operates up until commission date prior to 18 years of age and has done for a number of years now.
HIS HONOUR: What was it at the time?
[COUNSEL]: 17. So, he would have just fallen into the adult jurisdiction on my assessment, Your Honour. Certainly, once again, on the current regime as I understand it, the maximum sentence, even after cumulation or, if imposed, as an aggregate sentence would be still, two years youth - I think it's now called Youth Justice Centre.
HIS HONOUR: You mean if he was now dealt with at the age of 18?
[COUNSEL]: Yes, of if committing these offences under the age of 18. It is certainly my submission, Your Honour, that had he been dealt with back in 1995 or thereabouts, even if he had fallen into the adult jurisdiction and been dealt with for those two matters, he would have been unlikely to have received anything more serious than youth training centre and the maximum adult sentence for youth training centre would have been three years.
and
He couldn’t have received a gaol sentence had he been dealt with close to the time, in my submission. It is difficult to see much alternative to the imposition of some type of gaol sentence at this stage, given the seriousness of the matters but in my submission, the duration of the gaol sentence that in my submission, would be appropriate in the circumstances is one that can be suspended …
and
As I say, Your Honour, certainly in respect of Counts 1 and 2 he couldn't have done any worse than YTC and he wouldn't in the Children's Court. It's my submission it would be highly unlikely that anyone would have imposed youth training centre for a first offender.
The prosecutor responded, relevantly, that -
… had these matters been able to be dealt with in a timely fashion the Children's Court jurisdiction would have done no worse than what my learned friend says and even in the adult jurisdiction his submission is well founded …
But he said that his instructions were nonetheless that an immediate custodial sentence was now required.
Whilst a conclusion what sentence would have been imposed in the Children’s Court is not determinative of what sentence should be passed many years later in a case of the present kind, it is a relevant matter. But consideration of the hypothetical sentence which would have been imposed is only one factor in the sentencing synthesis. Counsel for the Crown submitted that in this case, however, the hypothetical sentence appeared to have played an important role – I took him to submit an inappropriately large a role – in the judge’s reasoning.
Counsel submitted that, if the Court accepted his submissions, an error in approach to sentencing might be discerned; in which circumstances the Court could conclude, in the particular case, that a different sentence should be passed. He added, orally, that in the event that the Court concluded that there was error in respect of the sentences on charges 1 and 2, then the Court should proceed to re-sentence the applicant on all counts without separately considering the merits of the applicant’s attack on the sentences imposed on charge 3 and 5.
I considered that counsel’s submissions should be accepted. But that was not the only problem with his Honour’s sentencing remarks. As I have attempted to show, his estimation of the hypothetical sentence proceeded from a false starting point – his understanding of the gist of counsel’s submissions.
The correct approach to sentencing in a case of the present kind is that described by Nettle JA in R v Boland,[6] an authority to which the judge was apparently not referred. I should set out what his Honour said and then relate it to the circumstances of the present matter:
[16]… Decisions of this Court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.[7]
[6](2007) 17 VR 300.
[7]Ibid, 304 [16].
In this case, I considered, the following circumstances were pertinent.
First the applicant offended, as I have said, on four particular occasions when aged, as it seems, 14 and 17. They were isolated instances of offending – which is not to suggest that this made them unimportant, particularly for the complainant.
Second, the applicant was very evidently immature when he committed the offences the subject of charges 1 and 2. When he committed the offences comprehended by charges 3 and 5, he was older; but still in law a young person, and still immature to judge by his continued use of home-made condoms; and by his childlike response to the complainant’s allegation of assault – viz: that she had jammed his fingers in a door. If it is wondered how the applicant could have been so apparently immature at age 17, the complainant’s evidence as to the workings of the Miller family, exemplified by the father’s response to the last offending, might well provide the answer.
Third, there was a long delay between the last offending and the complainant making complaint to the police in 2008 – some 14 years. Then the applicant was not interviewed until 11 May 2009. His trial did not commence until 31 August 2010. He was not sentenced until 17 September 2010. In all, some 16 years had elapsed from time of last offending until sentence.
Fourth, in that time the applicant had married, fathered two children, and step-fathered a third.
Fifth, the applicant had mostly been in work throughout that period.
Sixth, the applicant had not offended before the instant offending. Nor had he offended thereafter.
Seventh, the applicant had the continued support of his family, his wife and children.
Eighth, the importance for sentencing purposes of both general and specific deterrence was in all the circumstances much reduced.
Ninth, there was particular error with respect to the sentences on charges 1 and 2.
In all, I accepted the submission of counsel for the Crown that in the circumstances the Court should grant leave to appeal, allow the appeal, and re-sentence the applicant on all charges.
I considered that the applicant should be re-sentenced as follows:
Charge 1 – 6 months’ imprisonment.
Charge 2 – 6 months’ imprisonment.
Charge 3 – 3 months’ imprisonment.
Charge 5 – 12 months’ imprisonment.
I concluded that 3 months of the sentence on each of charges 1 and 2 should be cumulated on each other and on the sentence on charge 5, this leading to a total effective sentence of 18 months’ imprisonment.
I was of opinion that 15 months’ of the total effective sentence should be suspended for a period of 15 months.
It followed from the sentences which I proposed on charges 1 and 2 that the applicant would be sentenced on charges 3 and 5 as a serious sexual offender, a matter which must be entered in the records of the court.
In all the circumstances, the Crown did not submit that a disproportionate sentence should be imposed.
In the particular circumstances, also, I considered that, notwithstanding s 6E of the Sentencing Act, no cumulation beyond that which I proposed would be appropriate.
I considered that the order made below for the taking of a forensic sample should be confirmed.
The Crown did not seek below that an order be made under the Sex Offenders Registration Act. No such order was made. No application for such an order was made in this Court. There was occasion to so order.
It remains to say that the reasons why I concluded that sentence should be suspended in part should be abundantly clear from what I have said at [69]-[76] above.
HARPER JA:
I agree with Ashley JA.
LASRY AJA:
I also agree with Ashley JA.
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