Mro v The Queen
[2010] VSCA 240
•23 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0957
| MRO |
| v |
| THE QUEEN |
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| JUDGES | NETTLE, NEAVE JJA and BEACH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 August 2010 |
| DATE OF JUDGMENT | 23 September 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 240 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Douglas, 16 December 2008); and Ruling dated 26 June 2008 (Unreported, County Court of Victoria, Judge Howard) |
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CRIMINAL LAW – Conviction – Applicant found guilty of multiple counts of sexual offences against three complainants and making child pornography, and pleaded guilty to count of possessing child pornography – Severance of presentment and separate trials – Evidence – Cross-admissibility – Crimes Act 1958, ss 397(3) and (3AA), 398A – Lack of commonality or insufficient pattern of conduct between allegations of one complainant and those of other complainants – R v Papamitrou (2004) 7 VR 375, applied – Directions otherwise sufficient – Uncharged acts not incorrectly characterised as evidence of grooming – Application granted and appeal allowed – Convictions quashed – Retrial ordered – Applicant re-sentenced on remaining count.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr S R Johns | Lethbridges Barristers & Solicitors |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA
NEAVE JA
BEACH AJA:
The applicant, MRO, was presented in the County Court on three counts of indecent assault (counts 1, 2 and 3), three counts of committing an indecent act with a child under 16 years (counts 4, 5 and 9) and counts of making or producing child pornography (count 6), causing a person under 18 years to be concerned in the making or production of child pornography (count 7) and attempted incest (count 8). After a 13 day trial the jury acquitted MRO of counts 3 and 8 but found him guilty on all other counts.
After being convicted of these offences, the applicant pleaded guilty to a count of knowingly possessing child pornography, arising out of a separate presentment, and was sentenced for this offence at the same time that he was sentenced for the other counts. (For convenience this is described as count 10.) After hearing a plea in mitigation of sentence, the learned trial judge sentenced the applicant as follows:
Count
Offence
Maximum
Sentence
Cumulation
Presentment C0705969.1
1
Indecent assault
5 years’ imprisonment[1]
6 months’ imprisonment
1 month
2
Indecent assault
5 years’ imprisonment
6 months’ imprisonment
1 month
4
Indecent act with a child under 16 years
10 years’ imprisonment[2]
12 months’ imprisonment
2 months
5
Indecent act with a child under 16 years
10 years’ imprisonment
15 months’ imprisonment
2 months
6
Making or producing child pornography
10 years’ imprisonment[3]
2 years’ imprisonment
9 months
7
Causing a person under 18 years to be concerned in the making or production of child pornography
10 years’ imprisonment[4]
2 years’ imprisonment
9
Indecent act with a child under 16 years
10 years’ imprisonment
3 years’ imprisonment
Base sentence
Presentment C0705969.2
10
Possession of child pornography
5 years’ imprisonment[5]
2 years’ imprisonment
12 months
[1]Crimes Act 1958, s 39.
[2]Crimes Act 1958, s 47.
[3]Crimes Act 1958, s 68.
[4]Crimes Act 1958, s 69.
[5]Crimes Act 1958, s 70(1).
This amounted to a total effective sentence of 5 years and 3 months’ imprisonment. The judge ordered that the applicant serve a period of 3 years and 6 months’ imprisonment before being eligible for release on parole.
The applicant now seeks leave to appeal against his conviction and the total effective sentence, the individual sentences and the non parole period.
The alleged offences
The counts in the first presentment were said to have been committed against three complainants, EP and RS, and the applicant’s daughter, SM. RS and SM are children. They were interviewed by the police and their VATE tapes were admitted in evidence.
EP, who is now an adult, together with her mother and the mothers of RS and SM, and RS’s older brother gave evidence at the trial.[6] The applicant gave no evidence himself but called two witnesses who saw SM while she was staying with him on an access visit in the school holidays of September 2006 and said that she appeared happy during that period. Their evidence was relevant to count 8 (of which the applicant was acquitted) and count 9, which alleged that the applicant had wilfully committed an indecent act with or in the presence of SM between 15 and 24 September 2006. The applicant also relied on a report from Dr David Ross which said that the applicant had undergone a day procedure for carpal tunnel syndrome on 13 September 2006 and would have been unable to undertake heavy lifting or gripping with his left hand for about two weeks after the operation.
[6]The remote witness facilities were used for these witnesses.
The grounds of appeal make it unnecessary to discuss the evidence of witnesses other than the three complainants.
Complainant EP
Counts 1 and 2 were allegedly committed against EP between 8 March 1989 and 9 March 1993, when she was between 7 and 10 years old. The applicant came to know EP because he and her parents participated in the activities of a church in Frankston.
EP described the circumstances in which count 1 allegedly occurred as follows. When EP was seven years old the applicant visited the house regularly and played games with her. Her brother and sister were much older than her and were not involved in the games. On the relevant occasion the applicant was playing a game of hide and seek with her. EP hid under the cushion of a couch which was in her parents’ bedroom. The applicant sat on the couch and placed his hands under the cushion and onto her chest. He then moved his hands over her underpants and rubbed and squeezed her vagina for a couple of minutes. The applicant then said ‘I’ve found you’ as if it were part of the game. EP said she felt very uneasy and awkward and told no one about what had happened.
Count 2 was said to have been committed during another game of hide and seek at EP’s home, when she was eight years old. Again she was the only participant in the game. She hid inside a walk-in robe in her parents’ bedroom. The applicant turned her so her back was towards his stomach and put his hand over her underpants,[7] rubbing up and down in that area for a period of about 30 seconds. He said something like ‘I found you’ and laughed it off as a joke. She thought that the behaviour had stopped when someone called EP to have lunch.
[7]In cross-examination it was put to her that she had said in her police statement that his hand was on the inside of her underpants and that her evidence was inconsistent with that statement.
EP said she had made a statement to the police after RS’s mother, AS, had contacted her by email, and said she was going to court about some incidents involving her daughter, but that AS had not told her any details about the allegations made by RS.
Complainant RS
Counts 4 and 5 were allegedly committed against RS between 1 December 2005 and 30 June 2006 when she was 10 years old. The accused had been a friend of her mother since they were members of a youth group at the Frankston church. He visited RS’s home a couple of times a month to fix their computer.
Count 4 occurred when RS visited the applicant’s home with her aunt and cousin. She was sitting on the applicant’s lap while he showed her music on his computer. He then slid his hands down the inside of her pants to her groin area.
The second of these offences was said to have been committed while RS was sitting on the applicant’s knee, in front of the computer at her home. The applicant put his hand across her stomach and slid it inside her jeans, just above the groin area, leaving his hand there for about 5 to 10 seconds. On both occasions RS felt uncomfortable and left the room. Her parents and siblings were at home when the second offence occurred. RS said she had not told her mother about these incidents immediately after they occurred but had done so later.[8] The evidence of AS, RS’s mother, was that RS had told her about the second alleged offence shortly after she had seen the inappropriate MSN message, referred to below, but that RS had not mentioned the incident on which count 4 was based until she was interviewed by the police.
[8]RS also said in her police interview that she had told her mother about the events referred to in [15] below.
At the trial, evidence of the applicant’s behaviour after the alleged offences was led by the Crown. The judge who sentenced the applicant described the nature of this evidence and the purpose of admitting it as follows:
The Crown relied on evidence of conduct by you to [RS] to prove that you were sexually attracted to her at the time of each of these incidents, and that you were grooming her by taking steps to have her accustomed to sexually explicit material and that you wished to continue to have contact with her.
The evidence was in relation to three separate occasions. The first was images on your mobile telephone, which you showed to her when she was with her brother near the trampoline in the family garden. The images were not of real people. They were pixel images one showing a woman’s breast and the second one showing an image of a man and a woman having sexual intercourse. Some time later, you sent her a communication by way of MSN, which was inappropriate for a number of reasons. For example, you commenced the communication by addressing her as, ‘Hi Sexy’. Her mother … saw this communication, was understandably concerned and spoke to her daughter about it … Later that year, in December, you sent [by] e-mail an animated image of two reindeer copulating, with the words, ‘Christmas is fucking deer’.[9]
[9](Unreported, County Court of Victoria, Judge Douglas, 16 December 2008) (‘Reasons’), [12].
In her jury charge her Honour said that this evidence ‘was irrelevant to your consideration of the counts in relation to the other complainant[s], [EP and SM]. As using your commonsense it only concerns [RS] for the limited purpose about which I have given you directions’.
Reference is made to these and other jury directions in relation to the second ground of appeal against conviction, which is discussed below.
Complainant SM
Count 9 was allegedly committed against the applicant’s daughter, SM, between 15 and 24 September 2006, while she was on an access visit with the applicant during the September school holidays. She was then 8 years old. The applicant had separated from his wife about 6 years earlier. SM had initially begun sleeping in her father’s bed because she was scared and had continued to do so. She usually slept naked and thought she was naked when the offence occurred. She woke up and found the applicant holding her legs apart and he then ‘put his doodle against my front bottom’.
SM’s mother gave evidence that SM had told her this had occurred when she picked her up on 23 September. SM said she had told her mother what had happened but was uncertain about when she did so. The mother contacted the Department of Human Services the following day and made arrangements to go to the police.
After the offence against SM was reported to the police, the applicant’s home was searched and 18 photographs of SM were found stored on his computer in a folder which contained family photographs. The photographs, which were alleged to be pornographic, depicted SM when she was aged between 4½ and 8 years. Three of the photographs were versions of the same photograph. In her reasons for sentence the trial judge described poses depicted in some of the photographs as follows:
Photograph 9, in which the child was looking at one of her breasts and squeezing it with her hand. Photograph 10, where she is eating breakfast with her robe open and her breasts exposed. Photograph 11 which is a close up of her with her robe open, showing her body below the navel concerning her naked vagina, and Photograph 13, in which she is lying on the bed on her back in a sexually provocative pose with her legs open.[10]
[10]Reasons, [18].
Counts 6 and 7 on the first presentment related to these photographs. Count 10 arose out of the discovery of child pornography on one of the computers seized from the applicant’s home. Police found 494 image files, 1,442 compressed ‘rar’ and ‘zip’ files (containing multiple files) and 25 movie files, all of which depicted child pornography.
The appeal against conviction
Ground 1
The first ground of appeal was that the ‘trial miscarried by reason of the failure to sever the presentment and order separate trials in respect of each complainant’s allegations’.
Before the trial[11] defence counsel applied for severance of the counts under s 372(3) of the Crimes Act 1958. Four separate trials – one in respect of each complainant and a fourth trial on four counts of possessing child pornography – were sought.[12] At the hearing of the application the Crown argued that the application for severance should be refused, because the evidence relating to the offences against the three complainants was cross-admissible. Counsel for the Crown also submitted that even if this were not the case, the counts should not be severed because of the presumption in s 372(3AA) of the Crimes Act 1958.[13] Counsel for the Crown submitted that any prejudice to the applicant arising as a consequence of the counts being tried together could be overcome by appropriate jury directions.
[11]The application was made on 11 and 13 June 2008, before the trial had commenced and before a different judge to the trial judge.
[12]The defence accepted that the child pornography counts relating to SM would be admissible in the trial of the other offences against her.
[13]The provisions are now in Criminal Procedure Act 2009, ss 193, 194.
Defence counsel submitted that the evidence in relation to the offences against each of the three complainants was evidence of propensity only and was not cross-admissible under s 398A of the Crimes Act 1958 (the statutory provision which then governed the admissibility of the evidence). Further, even if the evidence were cross-admissible, its prejudicial effect far outweighed its probative value. In these circumstances severance was necessary to ensure that the applicant had a fair trial.
Having discussed relevant authorities on severance and the cross-admissibility of the evidence under s 398A[14] the pre-trial judge refused to sever the counts alleging sexual offences against the three girls and the pornography counts relating to the applicant’s daughter, SM. He said:
[14]R v Papamitrou (2004) 7 VR 375; R v Best [1998] 4 VR 603; Hoch v The Queen (1988) 165 CLR 292, 296; Pfennig v The Queen (1995) 182 CLR 461; Director of Public Prosecutions v P [1991] 2 AC 447; R v DCC [2004] VSCA 230 (‘DCC’); R v TJB [1998] 4 VR 621 (‘TJB’), 629-30 (Callaway JA); R v PJO [2001] VSCA 213, [14] (Buchanan JA); R v KRA [1999] 2 VR 708, 713-16.
Having given the matter careful thought as to the position of the three complainants, I have reached the conclusion where I agree with the Crown’s submissions, applying the legal principles which I have set out. In my view the evidence is of strong probative value. I am satisfied that the evidence of each of the complainants as to each count, if accepted, is capable of strongly supporting each other complainant. Of course, it will be a matter for the jury whether or not it accepts the evidence of the complainants.
Although the alleged offences against [EP] (Counts 1 to 4) occurred a long time before the other allegations, I do not consider that the requirement of ‘sufficient connection in time and circumstance’, as it is referred to in a number of the cases, means that all alleged offences must have been committed within a short time span to be cross-admissible. The concept of time is but one consideration in this context. In my view, applying any sort of mathematical formula to such a concept would be arbitrary and may be particularly unjust to the Crown’s position.
There is, in my view, sufficient in the evidence to show an ‘underlying unity’ in the commission of the alleged offences against each complainant, of the kind set out in the Crown’s submission which I have rehearsed. In my view the improbability of coincidence in the accounts is so great that it is just to admit the evidence in this way despite its prejudicial effect.
It is open to the jury to conclude that the accused systematically exploited his relative and the other complainants when they came within his sphere of influence at either his premises or theirs. To adopt the words of Buchanan JA in PJO[15] –
‘I consider it is open to the jury to accept that the complainants’ accounts, when taken together, make it more probable that each is telling the truth.’
As I have said, it will be a matter for the jury as to whether they do that or not.
Obviously a case of this kind – a joint trial involving three complainants – will involve the necessity of giving strong and clear directions to the jury as to, for example, the need for separate consideration of each count; the way in which the principle of cross-admissibility would apply; as between each complainant; and the limited use that could be made of the uncharged acts regarding [RS]. No doubt there would be other matters arising.
It is the long experience of the courts, and indeed my own, that in sex trials involving multiple complainants, a jury does and will faithfully and impartially apply these types of directions. Juries in fact draw distinctions between the evidence which is relevant and admissible to each complainant and indeed return different verdicts where appropriate, relating either to different counts concerning the same complainant or as between different complainants.[16]
[15][2001] VSCA 213, [14].
[16](Unreported, County Court of Victoria, Judge Howard, 26 June 2008) (‘Ruling’), [76]-[81].
His Honour ordered that the four counts of possessing child pornography should be tried separately. As we have said, the applicant later pleaded guilty to a single possession count.
Counsel’s submissions
The submissions made on the hearing of the appeal were similar to those made at the hearing of the severance application. Counsel for the applicant submitted that the counts relating to offences against the three separate complainants should have been severed because the evidence involving the commission of the offences was not cross-admissible. It was said that his Honour had correctly recognised that there must be a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to make the evidence of one complainant admissible in support of the other complainants,[17] but had not applied this principle correctly.
[17]DCC (2003) 11 VR 124, [8], [28]; R v Papamitrou (2004) 7 VR 375, [31]-[32].
Counsel for the applicant submitted that the only similarity between the alleged offences was that each complainant alleged discrete incidents of sexual abuse at the time when they were of similar age. The judge failed to ‘have regard to the dissimilarities’ between the allegations of each complainant, and particularly the dissimilarities between the alleged offences against EP and RS on the one hand and SM on the other.[18] The judge should have concluded that the difference in the time and place of the alleged offences committed against EP, and those allegedly committed against the other complainants, disrupted any ‘underlying unity’ between the alleged offences.
[18]R v FTG (2007) 15 VR 685 (‘FTG’), 696 (Vincent and Redlich JJA and Habersberger AJA).
Counsel for the applicant submitted that the judge had erred in relying on the grooming of the complainants (playing a game and using the computer with EP and RS, and allowing SM to sleep in his bed) to demonstrate an underlying unity in the offending.[19] There was no grooming in relation to EP and the evidence of the grooming of RS and SM was so dissimilar that it could not be held to be cross-admissible.
[19]Ruling, [65] summarising the Crown submissions.
Further, counsel contended that, even if the evidence of offending against one complainant had some limited probative value in proving the alleged offences against another complainant, the evidence should not have been held to be cross-admissible under s 398A, because its prejudicial effect far outweighed its probative value. In particular the judge had failed to have regard to the prejudicial effect of the jury hearing and seeing the evidence relating to the allegedly pornographic photographs of SM. Consequently the pre-trial judge’s ruling had given rise to a miscarriage of justice, even though the learned trial judge had warned the jury that the evidence relating to counts 6 and 7 (the counts relating to the photographs of SM) could not be used as evidence supporting the counts involving indecent acts against the other complainants.
Counsel for the Crown came close to conceding that there were significant differences between the alleged offending against the applicant’s daughter and the other two complainants. However he submitted that it was open to his Honour to hold that there was sufficient similarity between the offences committed against EP and RS to make the evidence in support of counts 1 and 2 cross-admissible in relation to counts 4 and 5, and vice versa. The judge had correctly held that the evidence of each complainant went beyond mere evidence of propensity and ‘demonstrates the improbability of the coincidence that each of the complainants would tell a similar story of sexual interference’ by the applicant.[20]
[20]Ibid [58].
Counsel for the Crown submitted that the fact that all complainants were girls and aged between 7 and 11, and that the applicant took opportunities to offend when he was alone with them, showed ‘an underlying unity’ in the offending. So far as his Honour’s reference to ‘grooming’ was concerned, counsel submitted that although the judge had observed that it was arguable that the applicant engaged in grooming each of the complainants, he had not treated ‘grooming’ as one of the factors which established an underlying unity between the offences. The judge had correctly held that ‘the improbability of coincidence [was] so great that it is just to admit the evidence … despite its prejudicial effect’.[21]
[21]Ibid [78].
In support of that argument counsel also relied on the absence of any allegation that the girls had deliberately ‘concocted’ their story, although it was conceded that, at the hearing of the severance application, defence counsel had alluded to the possibility that one or more of the complainants might have been innocently influenced by allegations made by another complainant that she had been sexually abused by the applicant.[22]
[22]See R v H [1995] 2 AC 596, 609 (Lord Mackay of Clashfern LC), 624-5 (Lord Lloyd of Berwick), 627 (Lord Nicholls of Birkenhead).
Conclusion on ground 1
The principles which govern the exercise of the discretion to sever presentments alleging sexual abuse of multiple complainants were articulated by Winneke P in R v Papamitrou.[23] In that case Winneke P referred to the insertion of ss 372(3AA) and (3AB) into the Crimes Act 1958 in 1997. Prior to these amendments:
the proper exercise of the discretion invested in the judge by s 372(3) had been held to require, other than in exceptional cases, the severance of counts on presentments which alleged multiple sexual offences against multiple victims in circumstances where the evidence in support of the counts relating to one victim was not admissible in proof of the counts alleging offences against the other victims.[24]
[23](2004) 7 VR 375 (‘Papamitrou’).
[24]Ibid 377.
As amended, the relevant provisions were as follows:
372 Orders for amendment of presentment, separate trial etc.
…
(3)Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.
(3AA)Despite subsection (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together. [emphasis added]
(3AB)The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.
The insertion of sub-ss (3AA) and (3AB) were based on recommendations made in 1995 and 1996 by two Parliamentary Committees.[25] The purpose of the amendments was explained in the Attorney-General’s Second Reading Speech of the Crimes (Amendment) Bill 1997[26] as follows:
The common law that has developed in relation to the use of propensity evidence and the application of the judicial discretion to sever trials has been very conservatively interpreted by the Victorian courts. The approach has invited controversy and calls for a review of that area of the law. It has not been well received by the community generally, and more specifically by victims of serial sexual offenders.
Rule 2 of Schedule 6 of the Crimes Act 1958 permits trials of different charges to proceed together, or be joined, if they are based on the same facts or are part of a series of offences of the same or a similar character. The court has a discretion to separate the charges where an accused may be prejudiced in conducting his or her defence by reason of the joinder.
Currently where two or more sexual offences are alleged against a person, the cases will be heard separately if evidence on one charge is inadmissible in relation to the other, despite the fact that the charges are otherwise properly joined. The new provision addresses this by inserting a presumption that such matters will be heard together. While the court retains the discretion to order separate trials in an appropriate case, the presumption will not be rebutted merely on the basis of the inadmissibility of evidence on one charge in relation to another.
[25]Crimes Prevention Committee, Parliament of Victoria, Combating Child Sexual Assault: An Integrated Model (May 1995), [8.2.6]. Drugs and Crime Prevention Committee, Parliament of Victoria, Combating Sexual Assault Against Adult Men and Women (November 1996). See also Rape Law Reform Evaluation Project, The Crimes (Rape) Act 1991 (January 1997), 252, 370.
[26]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 431 (The Hon Jan Wade, Attorney-General).
Winneke P said:
As this court pointed out in R v KRA,[27] these amendments make it appropriate that severance of the presentment:
… should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of Christou.[28]
In particular, the court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.[29]
[27][1999] 2 VR 708 (‘KRA’), 715 (Winneke P, Brooking and Ormiston JJA).
[28]R v Christou [1997] AC 117 (‘Christou’), 129.
[29](2004) 7 VR 375, 388.
Having regard to his Honour’s reference to the decisions of the House of Lords in Christou[30] and of this Court in KRA,[31] it is helpful to refer to those decisions.
[30][1997] AC 117.
[31][1999] 2 VR 708.
In Christou[32] the offender appealed to the House of Lords on the ground that counts alleging sexual abuse of his two young female cousins should have been severed. There was no legislative presumption of the kind introduced by the Crimes Act 1958, s 372(3AA). It was also assumed, for the purposes of the appeal,[33] that the evidence of the girls was not cross-admissible. Nevertheless the appeal was dismissed. Lord Taylor of Gosforth said that the criterion in deciding whether severance should be ordered was
the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are:– how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are to be applied faithfully. Experience shows, as for example in R v Blackstock[34] and in the instant case, that juries, where counts are jointly tried, do follow the judge’s directions and consider the counts separately.[35]
[32][1997] AC 117.
[33]Lord Griffiths considered that it would have been cross-admissible, because the evidence of each complainant corroborated the evidence of the other.
[34](1979) 70 Cr App R 34.
[35][1997] AC 117, 129.
In KRA[36] this Court held that the trial judge had not erred in refusing to sever a presentment alleging that the accused had sexually abused two girls who were the daughters of the accused’s de facto partner, while he was living in the household.[37] The Crown did not rely on the cross-admissibility of the evidence in order to justify joinder.
[36][1999] 2 VR 708.
[37]The judge had ordered the trial of alleged offences against the third daughter be severed on the basis that her evidence was not reliable.
As well as referring to the change brought about by the insertion of sub-ss (3AA) and (3AB), Winneke P took account of the fact that both girls were living in the same household and that proof of two offences which were alleged to have been committed against one of the sisters would have required the other sister to give evidence twice.[38] He referred to the concern that joinder of the counts would be prejudicial to the accused and said that
it should not, we think, be forgotten that the amendments to s 372 of the Crimes Act are specifically directed towards the joint trial of ‘sexual offences’ and that the experience of this court is that a large number of such offences tried in this State are offences which involve young children and, consequently, excite emotion and revulsion. Indeed it is difficult to imagine any such case which would not do so. Nor, in our view, should it be lightly assumed that juries are incapable of following instructions given to them by the judge in such cases. This case, as it seems to us, amply demonstrates that proposition, because, in acquitting the applicant on count 5, the jury has obviously heeded the judge’s warning to ignore the evidence of ‘uncharged acts’ given by B. In our opinion the presumption in favour of trying jointly sexual offences, contained in s 372(3AA) of the Crimes Act, is predicated upon the assumption that juries will heed appropriate warnings given to them by the trial judge.
There will, no doubt, be some cases where the perceived prejudice to the accused will be so great that the trial judge will consider that no judicial direction will overcome that prejudice and that circumstance will play a dominant role in the exercise of his discretion, notwithstanding the legislative policy expressed in the amendments to s 372. Each case will necessarily depend upon its own facts and, as in the case of all discretionary exercises, rarely will a decision in one case provide a precedent for another.[39]
[38]One of the girls gave evidence that she had seen the applicant digitally penetrate her sister.
[39][1999] 2 VR 708, 716.
Although s 372(3AA) makes it clear that joinder of counts alleging offences against multiple complainants does not require cross-admissibility, Winneke P also said in Papamitrou that:
it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will — in most cases — be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton … will remain influential in this State.[40]
[40](2004) 7 VR 375, 388.
As we have said, counsel for the applicant in this case submitted that the judge wrongly considered that the evidence of the three complainants was cross-admissible under s 398A of the Crimes Act 1958.
Section 398A(2), which was introduced in 1997 at the same time as the amendments to s 372 of the Act, provides as follows:
Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.
A decision as to whether evidence is admissible under s 398A(2) is a question of law and not discretion. As Winneke P said in R v Tektonopoulos:[41]
In truth, the trial judge has no discretion because if he concludes that the evidence is sufficiently probative as to render it just to admit it despite its prejudicial effect, he must admit it … Indeed as McHugh J pointed out in Pfennig:[42]
‘[O]nce it is accepted that the prejudicial effect of the evidence is a matter going to admissibility, no scope remains for the exercise of the discretion to reject probative evidence in criminal trials on the ground that it is unduly prejudicial to the accused.’
In this sense, s 398A ‘prescribes a rule that must be satisfied before a particular class of evidence is admissible, not a discretion to exclude evidence that is admissible’.[43]
[41][1999] 2 VR 412, 419.
[42]Pfennig v The Queen (1995) 182 CLR 461, 515.
[43]TJB [1998] 4 VR 621, 631-2 (Callaway JA).
In Papamitrou this Court rejected the applicant’s submission that it was necessary to demonstrate a ‘striking similarity’ between the alleged offences against the six complainants for their evidence to be mutually admissible. Winneke P said that, at least where the issue was whether the offence occurred, rather than whether the accused was the offender, this requirement did not apply. The trial judge had correctly held that there was ‘an “underlying unity” between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age’.[44] The applicant had used pretexts to isolate the girls from the company of others and blandishments to induce them into sexual contact with him:
Whether one describes these factors as providing an ‘underlying unity’, or a common ‘modus operandi’ or a ‘pattern of conduct’ is of little consequence. The ‘links’ were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of ‘infection’ the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive - and in my view strongly supportive - of the evidence of others. Not only that, but - in my opinion - the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have.[45]
[44](2004) 7 VR 375, 390-1.
[45]Ibid 391.
That conclusion was reached despite significant differences in the circumstances of the alleged offending conduct. Four of the girls were 15, one was 18 and one was between 17 and 18 when the offences were said to have occurred. Some counts involved kissing and touching of the breast, whilst others involved vaginal touching and/or digital rape. The offending occurred in different places – the car park outside the applicant’s place of work (complainant KG), in the applicant’s car (complainants RM and KW), after the applicant asked the complainant to get out of the car and check his lights (complainant KW), in a storage cage at the applicant’s workplace (complainants KH and RS), in an office at the workplace (complainant KH) and after the applicant followed a complainant into the toilet (complainant MP). The offending against some of the victims was preceded by explicit sexual conversations and in others it was not. Although the applicant came into contact with all of the girls through his work, only two of them were employees at the shop which he managed. One worked next door, and the other two were visitors either to the premises where the applicant was working or next door.[46]
[46]See also R v GAE (2000) 1 VR 198, 212-13 (Chernov JA); cf Winneke P (at 200) and Callaway JA (at 205); R v Best [1998] 4 VR 603, 616 (Callaway JA); R v Mitchell (2000) 112 A Crim R 315, 318-19 (Tadgell JA).
Since the decision in Papamitrou, numerous appellate authorities have dealt with the question whether evidence relating to alleged sexual offences against different complainants is cross-admissible under s 398A(2). Not surprisingly, each counsel relied on authorities which appeared to support their submissions. Particular reference was made to the judge’s reliance on R v PJO,[47] where the evidence of five sisters of the applicant’s wife, that they had been sexually abused in various ways by the applicant, was held to be cross-admissible. In that case Buchanan JA said that:
common elements [in the offending] included the relationship of each complainant to the applicant, the opportunity given to the applicant by each complainant living in the applicant’s house, the fact that the assault against each complainant in the applicant’s house occurred when the applicant’s wife was asleep or absent and the youth of most of the complainants when the offences occurred … The evidence disclosed a pattern of conduct on the part of the applicant. He systematically exploited his young sisters-in-law when they came within his sphere of influence …
In the present case the question was whether a crime had been committed, not the identity of the person who had committed an undoubted crime, and in my view, with appropriate directions from the trial judge, it was not unjust to admit the evidence. The improbability of coincidence, from which the evidence derived its probative force was sufficient to render it just to admit the evidence notwithstanding its prejudicial effect.[48]
[47][2001] VSCA 213 (‘PJO’).
[48][2001] VSCA 213, [16]-[17].
Counsel for the Crown submitted that, as in PJO, the alleged offences occurred when the complainants came within the applicant’s ‘sphere of influence’. He was able to offend against each of the complainants with apparent impunity, because he was able to dominate them either as a trusted family friend (in the case of EP and RS) or, in the case of SM, as her father.
Counsel for the applicant submitted that PJO was distinguishable on the facts because the complainants in this case did not live with the applicant and were not within his ‘sphere of influence’. The similarities between the offences relied upon by the judge, for example the age and sex of the complainants, were not distinctive features of the offending, [49] but were simply features that were frequently found in allegations of sexual offences against children.
[49]Ruling, [67].
On its face the first ground of appeal complains only of the pre-trial judge’s ruling that the counts should not be severed. That ruling was made in the exercise of a discretion in the House v The King sense.[50] If his Honour had refused to sever the counts simply on the basis that s 372(3AA) applied, the applicant would only be able to succeed on this ground of appeal if the failure to sever resulted in an unfair trial. The resolution of that question would depend on the correctness of the trial judge’s rulings as to the admissibility of the evidence under s 398A, and of her Honour’s jury directions as to how any evidence admitted could be used.
[50](1936) 55 CLR 499.
In this case however, the pre-trial judge exercised his discretion on the basis that the evidence of each complainant was cross-admissible in relation to the alleged offences against the other complainants. If that view was incorrect, the exercise of the discretion was based on a wrong decision on a question of law and the appeal must be allowed.[51]
[51]See GBF v The Queen [2010] VSCA 135, [55] citing TJB [1998] 4 VR 621, 631-2.
The evidence was not cross-admissible under s 398A, if it was simply evidence of propensity (that is, evidence adduced to show that because an alleged offender has committed criminal offences or has behaved disreputably on another occasion he or she is ‘the kind of person’ likely to have committed the alleged offences).[52] As Weinberg JA said in R v EF:
The authorities make it clear that it will not ordinarily be ‘just’ to admit evidence which does no more than demonstrate that the accused has a propensity to have committed the offences charged. The evidence must establish a probative value beyond merely establishing a criminal tendency or disposition.[53]
[52](2008) 189 A Crim R 463, 467-8 (Weinberg JA).
[53]Ibid 468.
The question in issue in this case was whether the complainants’ evidence about the applicant’s sexual assaults on them should be believed. If the evidence of each complainant had probative value in establishing that the evidence given by the other complainants about the applicant’s sexually abusive behaviour was true, it would be admissible unless its prejudicial effect exceeded its probative value. As we have already said, it is unnecessary to demonstrate that there was a striking similarity between the alleged offences against these girls before the evidence is cross-admissible for the purpose described above.
Whether evidence is cross-admissible turns on the particular facts of the case and the purpose for which it is sought to admit the evidence. Because of the factual sensitivity of cross-admissibility questions, other cases, decided in different factual circumstances, are of limited assistance in deciding the question which arises here.
In our view the circumstances of the offending against EP and RS demonstrated a ‘pattern of conduct’[54] which made the evidence of these two complainants cross-admissible under s 398A. Both girls were pre-pubescent when the alleged acts occurred. Although the evidence does not show that the applicant used his church connections to create opportunities for offending against children, he used his status as a trusted family friend to take advantage of EP and RS. He came to know both EP and RS through visits to their home, where he shared meals, or brought food and repaired the family computer. Although he was alone with each of the girls at the time of the alleged offending, other adults were nearby. The children had difficulty in complaining about the offences, because the applicant touched their genitals under the guise that he was playing with them. The existence of some dissimilarities between the alleged offences does not necessarily deprive the evidence of probative value, as Papamitrou illustrates.[55]
[54]Papamitrou (2004) 7 VR 375, 391.
[55]The fact that there were only two complainants does not prevent the evidence from being probative: R v Rajakaruna (2004) 8 VR 340, 364, n 45 (Eames JA).
Nor does the gap in time between the alleged offences against EP and the alleged offences against RS deprive their evidence of probative value in relation to the offences against the other complainant. Indeed, when combined with the other circumstances of the offending, the fact that EP was aged between 7 and 10 and RS was aged 10 at the time of the alleged offences, may be regarded as having probative value because it shows that the applicant had a sexual interest in pre-adolescent girls, which was pursued in the manner described above.
We therefore consider that his Honour correctly held that EP and RS’s evidence was cross-admissible, subject to the jury being warned that they must consider each count separately and that if they found that the applicant had committed an offence against one complainant they could not reason that he had committed the other offences because he was the kind of person likely to have done so.[56] The evidence would have been cross-admissible even if it might have been prejudicial to the applicant. As Winneke P said in Papamitrou:[57]
It is obvious that evidence of this type carries with it a ‘prejudice’ to the accused. But the ‘prejudice’ of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them.[58]
[56]R v Best [1998] 4 VR 603, 614 (Callaway JA); DCC (2004) 11 VR 129, 131-2 (Callaway JA).
[57](2004) 7 VR 375.
[58]Ibid 391.
Our view on that issue is reinforced by the fact that the jury acquitted the applicant of a third offence against EP. EP alleged that the applicant, who had a pilot’s licence, took her and her brother on a joy flight. He allowed her brother to take the controls of the plane and while this was occurring he reached into the back seat where she was sitting and touched her vagina on the outside of her clothes. The jury verdict on that count indicates that the jury had regard to the trial judge’s warning about the use they could make of the cross-admissible evidence of RS in determining whether the applicant had committed the offences against EP.
On the other hand, we consider that the pre-trial judge should not have ruled that SM’s evidence was admissible in support of the counts involving offending against the other two girls, or vice versa. The case law indicates that s 398A requires some commonality, falling short of ‘striking similarity’, between offences against different complainants, before evidence of offending against other complainants, can be regarded as having a probative value beyond that of mere propensity.
SM was a pre-pubescent girl, as were EP and RS. But the alleged offences against her did not occur in the context of play, but after she slept and woke up in the applicant’s bed. SM was the applicant’s daughter and the offence against her did not involve the applicant’s exploitation of a friendship with her parents. The applicant took photographs and a video of his daughter, but did not photograph the other complainants. The admission of photographs of SM which were said by the Crown to be pornographic would have been prejudicial to the applicant, even though the trial judge told the jury that they could not be used in support of the counts involving the offences against EP and RS.[59]
[59]KRA [1999] 2 VR 708, 716 (Winneke P).
It follows that his Honour erred in deciding that the counts should not be severed because the evidence relating to SM was cross-admissible in support of the other counts. Plainly, this was a case in which the prejudice to the applicant of trying the counts concerning SM with the counts concerning EP and RS was such that the counts concerning SM should have been severed.
For these reasons we would order retrials of the applicant in relation to all of the offences. Those retrials will be conducted in accordance with the joinder rules in the Criminal Procedure Act 2009, which are in similar terms to s 372(3AA) and by reference to the principles in ss 97, 98 and 101 of the Evidence Act 2008 relating to the admission of tendency and coincidence evidence. Of course it will be a matter for the trial judge, but we see no reason why the counts concerning EP and RS should not be heard together.[60]
[60]Cf R v Pidoto [2009] VSCA 166, [35]-[40].
Because ground 1 has succeeded it is only necessary to deal briefly with the remaining grounds.
Ground 2
This ground was as follows:
The trial miscarried by reason of the learned trial judge’s directions as to probability reasoning and propensity reasoning being insufficient in the circumstances.
In her jury charge her Honour first directed the jury that they must consider each count separately. Consistently with the ruling made in relation to the severance application, her Honour then told the jury that the Crown relied on the evidence of all three complainants, in support of all counts other than the pornography offences (counts 6 and 7) but that it was for the jury to decide whether it accepted the evidence and whether it ‘did in fact confirm or support the particular complainant’s evidence when you are considering each count on the presentment’. She explained that the Crown case was that this evidence could be used in assessing the reliability of each complainant’s evidence and then referred to the matters of similarity relied upon by the Crown and the submissions made by the defence in that matter. She said:
Now as a matter of law, I direct you that you are entitled to consider, as part of the evidence in this trial, on the counts on the presentment, which is all but counts 6 and 7, the fact that each complainant made allegations against the accused, as I have outlined. To this extent the evidence of the fact that each complains of sexual abuse in their own trial is admissible in the trial of each of the other complainants.
The Crown is entitled to rely on it as showing that it is improbable that each complainant has made up or fabricated the incidents, each, as alleged, occurred independently of the other. You can ask yourselves the question: what is the probability of each of the complainants giving these accounts that they do of the accused’s conduct. Unless they, in fact, occurred when you are considering the evidence in relation to each of the counts on the presentment.
In other words, you can use this evidence to strengthen of [sic] improbability of each telling lies when assessing their evidence individually. What you cannot say, members of the jury, is if I am satisfied that he is guilty regarding one complainant, then it follows he is guilty regarding all the other complainants, because they are each telling similar accounts. You must not do that. You must not reason that because the accused engaged in sexual behaviour with each complainant on other occasions, he was the kind of person who was likely to have done so on the specific occasion you are considering when going through each count. You must assess each of the individual counts and this aspect of the evidence is only one matter to take into account when assessing the evidence that relates to each specific count.
The commission of the offence which is the subject of each count on the presentment can only be proved by evidence which relates to that particular count under consideration, and I will identify for you the evidence upon which the Crown relies in relation to each count.
Her Honour warned the jury more than once that the evidence relating to counts 6 and 7 (covering the photos of SM) was not admissible in support of the alleged offences committed against the other girls and that the evidence of uncharged acts involving RS was:
irrelevant to your consideration of the counts in relation to the other complainants [EP and SM]. As using your commonsense it only concerned [RS] for the limited purpose about which I have given you a direction.
Counsel for the applicant contended that the judge had not sufficiently distinguished probability reasoning from propensity reasoning. While acknowledging that the sufficiency of directions as to propensity reasoning will depend on the circumstances of each case,[61] he relied on Callaway JA’s observation in DCC[62] that the jury should be given careful instructions as to how probability reasoning is a ‘different train of thought’ to propensity reasoning.
[61]Papamitrou (2004) 7 VR 375, 393; DCC (2004) 11 VR 129, 132 (Callaway JA), 138-9 (Eames JA).
[62](2004) 11 VR 129, 132.
Counsel submitted that the judge directed the jury to consider the wrong question. Instead of asking ‘what is the probability of each of the complainants giving these accounts that they do of the accused’s conduct’, counsel submitted that the jury should have been directed to ask ‘what is the probability of each of the complainants giving similar accounts’ because it was the level of unity or similarity between the accounts which is relevant.[63] The judge, it was said, was also required to point out the dissimilarities to the jury in greater detail than she did.
[63]FTG (2007) 15 VR 685, 695; DCC (2004) 11 VR 129, 132.
Counsel for the Crown submitted that her Honour had correctly directed the jury on the way that the evidence of each of the complainants could be used. She said that in total, no less than five warnings about reasoning from mere propensity were given. Counsel also relied on the judge’s warnings about the limited purpose for which evidence of uncharged acts could be used and on her Honour’s references to the defence position in relation to the similarities relied upon by the Crown.
In DCC[64] Callaway JA referred to the warnings which must be given in cases involving multiple counts on one presentment and multiple complainants in circumstances where the evidence in relation to the complainants or some of them was cross-admissible. He said that in such circumstances:
The need for [a propensity warning] may be greater than in other cases, first, because the risk of prejudice is ordinarily at its highest in a similar fact case and, secondly, because, depending on the nature of the similar fact evidence, it may be necessary to explain to the jury the difference between probability reasoning, which is permitted, and propensity reasoning, which is not.[65]
[64](2004) 11 VR 129.
[65]Ibid 131-2.
If the evidence had been properly cross-admissible in support of all of the counts, we would have regarded the warnings given by her Honour as adequate. However, because her Honour told the jury that the evidence in support of counts 1, 2, 4 and 5 were admissible in support of count 9, this ground is necessarily made out.
Ground 3
Ground 3 was that ‘the trial miscarried by reason of the learned judge’s reference to grooming in her uncharged acts direction where the complainant RS was concerned’.
The remarks on which counsel for the applicant relied were as follows:
Now evidence has been led by the Crown in relation to [RS], not only of the sexual acts alleged against the accused, which are the subject matter of counts 4 and 5 on the presentment in respect of which your decision is required, but also evidence that the accused conducted himself towards [RS] in an inappropriate way on three occasions: (1) when the accused showed her in the presence of her brother, [N], at the trampoline at her home, images on a mobile telephone of a woman’s breasts – two images, one of a woman’s breasts and the second of a woman and a man having sexual intercourse; the MSN communication; and (3) the Christmas email on 12 December depicting two reindeer.
Now there is no dispute in this case that each of these three incidents took place, but issue was taken as to what you make of the accused’s conduct. The Crown case is that although each of these incidents took place after the alleged offences which are the subject of counts 4 and 5 on the presentment, on each occasion the accused’s conduct indicates that he was sexually attracted to the complainant at the time and therefore at the time of the counts on the presentment, and that he was grooming her, that is taking steps to have her accustomed to sexual activity and that he wished to continue to have contact with her with an intention of a relationship involving sexual activity.
Now the evidence is admitted, solely for this limited purpose, of proving the state of mind of the accused at the time of the counts on the presentment which is the sexual attraction the accused had for [RS], as well as the context and the setting in which the offences which are alleged to have been committed occurred in that he was grooming her, which is getting her used to sexually explicit material and had a sexual attraction for her.
Now the law permits the Crown to rely on such evidence to prove these matters, that is the sexual attraction of an adult for a child to provide a context or setting for each alleged offence. In this case, as I have said, it is not in issue that each of these three incidents took place, but it is in issue that the accused conducted himself in an inappropriate way towards [RS] in the circumstances. It is also in dispute therefore that he was sexually attracted to her and was intending to groom her.
If you were satisfied beyond reasonable doubt that the accused’s conduct in one or more of these incidents proves that he was sexually attracted to her at the time of the alleged offences, you may use it as capable of making more credible the evidence of [RS] that the sexual activity which she alleges did take place on the particular occasion in count 4 and the particular occasion in count 5. It is only for these reasons that this evidence is permitted to be given.
You must understand that even if you accept beyond reasonable doubt the state of mind or the intention of the accused as is alleged by the Crown in relation to one or more of these three incidents, that evidence does not prove any of the offences which are the subjects of Count 4 and 5. The commission of the offences in Counts 4 and 5 can only be proved by evidence which relates to those alleged offences, and not by evidence of inappropriate sexual behaviour.
Further, even if you accept beyond reasonable doubt – sorry I will say that again. I have said the commission of the offences can only be proved by evidence relating to each of those offences, not by evidence of inappropriate sexual behaviour. Secondly, even if you accept beyond reasonable doubt the state of mind or the intention of the accused as alleged by the Crown, against the accused from his conduct in one or more of these incidents, you must not reason that he was the kind of person who was likely to have committed the offence in count 4, or the offence in count 5.
Counsel for the applicant conceded that the evidence was admissible to demonstrate ‘sexual attraction’, but submitted that it was unnecessary and highly prejudicial to characterise the evidence as demonstrating that the applicant was ‘intending to groom’ RS.
Counsel for the Crown submitted that it was open to her Honour to characterise the uncharged acts (which were admitted), as amounting to evidence of the applicant’s grooming of the complainant for further sexual activity and as countering any defence that there were innocent explanations for his prior conduct. Counsel also submitted that since no further allegation was made by RS after this admitted conduct, there was no prejudice to the applicant.
We would accept the Crown submission on ground 3, which therefore fails.
Re-sentencing the applicant
Because the convictions on all counts must be quashed, the applicant must be re-sentenced on count 10. Count 10 involved the possession of a large number of pornographic images of children which had been collected over a considerable period. Some of the images were of sickeningly cruel and violent abuse of young children. The sentencing judge summarised their nature as follows:
It is not in dispute that the movies depict children, some as young as 12 months of age, involved in sexual activity with adults, with children including children involved in bondage and children in pain. The images which were tendered include young children under 10 depicted in sexual acts with adult males, one a sexual act with an adolescent child, one with an object inserted in her vagina, a number showing a child who has an adult’s penis in his or her mouth. A number of photographs show a child involved in a sexual act with a male. One photograph depicts a child with her mouth covered in semen and one child who seemed to be distressed.[66]
[66]Reasons, [24].
Her Honour did not accept the submission made on behalf of the applicant that he had accidentally come across these images and was not looking for hardcore pornography. She found that he deliberately chose sites with names indicating they were the repositories of this kind of material. It follows that both specific and general deterrence must be given significant weight.
The applicant was 50 years old at the date of sentence. He had a good employment record and no prior convictions, though he had previously appeared in the Magistrates’ Court on four charges of breaching the terms and conditions of an intervention order. The proceedings were adjourned for a period of 12 months upon the applicant’s entering into an undertaking to be of good behaviour.
The applicant met his current wife, who had a daughter from a previous relationship, when he was about 34. They married in 1994 and their only child, SM, was born about four years later.
Two reports dated 16 October 2007 and 5 December 2008 were prepared by Mr David Ball, a psychologist, and tendered on the applicant’s behalf. The judge referred to the following parts of the second report:[67]
[67]Ibid [36]-[40].
Mental Status Examination
[MRO’s] medical status examination was remarkable. There was no evidence of frank mental illness such as psychotic symptoms, hallucinations or delusions in clinical interview. His immediate recall, short term memory and long term memory were intact and he was oriented to time, place and person. I observed no signs of a thought disorder in either flow or content.
At the time of his interview [MRO] said he had been held in custody for the previous six weeks. He said he was feeling depressed but did not want to take medication to address his symptoms. [MRO] said he spends many hours each night tossing and turning and often wakes from nightmares in a cold sweat. He said his appetite has diminished and he mostly just nibbles at bits of food.
[MRO] impressed me as a man with the capacity to exercise good judgment. He expressed limited insight into his offending behaviour and psychological functioning generally. I would estimate his IQ to reside within the normal range.
…
Mental Health
[MRO] said that since his separation he has been depressed. He said, ‘I was coping before but since I lost everything I’ve been depressed’. [MRO] said he has attempted suicide on several occasions. He said his first attempt was in 2002/2003.
Notably [MRO] made a further attempt on his life in August this year. He said that he felt pushed to suicide because of his divorce and the costs associated with his legal matters. [MRO] said he took a full bottle of sleeping tablets (Tamazepam) and a ‘handful’ of Ciprimil. The records of Frankston Hospital state that [MRO] was transported by ambulance to the hospital after police subdued him with capsicum spray. [MRO] said he has little memory of what transpired during that time.
…
Diagnosis
[MRO] is clearly exhibiting symptoms of major depressive episode-chronic. The report of Dr Manton suggests [MRO] has been suffering symptoms of a major depressive episode for at least eight years. I understand that at [MRO’s] own request, he is not taking any medication to assist him to manage his symptoms and he said, ‘[MRO’s] history of suicide attempts is particularly troubling’.
Mr Ball reported that the applicant explained his possession of child pornography as arising out of his ‘morbid curiosity’ about young girls. Because he was raised in a family of boys, he was ‘just curious’. Mr Ball said that the applicant had said that he now understood that downloading pornography allowed the child pornography industry to continue. Mr Ball did not suggest that there was any causal link between the applicant’s possession of child pornography and his depression, but said that he considered that the applicant was now genuinely remorseful. He considered that the applicant presented an ‘uncertain risk’ of future offending, although that assessment reflected the applicant’s convictions of the sexual offences against the three complainants and not simply the conviction on the child pornography count.
Two reports prepared by the applicant’s general practitioner, Dr David Manton, were also tendered on the applicant’s behalf. The judge cited the following passage from the letter dated 9 October 2007:[68]
[68]Ibid [34].
[MRO] has been a patient of mine at the surgery since before 1999 and has provided written authority for me to write this report on 8 October 2007. My current available records go back to 1999. The majority of my consultations with him over the years have been for treatment of depression. The treatment has included the use of anti depressant medication, anxiolytic medication, psychology referral and the Dandenong Hospital Community Psychiatric Department have also had interaction with him. His depression has largely been associated with initially a back injury but later recurred more severely after his marriage break up and associated events that involved court cases, custody issues relating to his daughter, financial problems and the associated legal process which has been very frustrating for him.
From the letter dated 6 December 2008, her Honour quoted the following passages:[69]
I first started seeing him in relation to his marriage difficulties April 3, 2000.
…
Following this there was a long drawn out series of court appearances where he was trying to obtain access to visit his daughter, [SM]. He was quite depressed and stressed when he visited me. During 2000, he attended at least two psychologists and had interaction with the local area psychiatric CAT team and spen[t] a day in the psychiatric unit at Frankston Hospital. Since I first saw him, he’s been on Cipramil, an anti depressant, at times taking doses of up to sixty milligrams daily. In August 2000, his mother died and in 2003 he commented on having financial problems and difficulty paying his solicitors’ accounts. Earlier this year, he spent some time in the local emergency department having taken an unknown quantity of Nitrazepam (sleeping tablets) and being capsicum sprayed by police. At times, [MRO] has expressed suicidal thoughts, but I am not aware of any specific suicide attempts. In my interaction with [MRO], he has displayed symptoms of stress, depression ... and anxiety which he blames on the legal procedure, police investigation and inability to see his daughter.
[69]Ibid [35].
The applicant must be re-sentenced on the basis that he will be serving a term of imprisonment for the first time. We agree with her Honour’s view that there was no evidence that the applicant’s depression reduced his moral culpability for the offence.[70] On the basis of the psychological report of Mr Ball we also agree with her Honour that imprisonment will weigh more heavily on him because of his mental condition.[71] The applicant must also be given some credit for his guilty plea, despite the fact that his conviction on count 10 was virtually inevitable because of the nature and number of images found by the police.
[70]See also ibid [42].
[71]R v Verdins (2007) 16 VR 269.
We would re-sentence the applicant to 2 years’ imprisonment on count 10 and fix a non-parole period of 16 months. We declare that if the applicant had not pleaded guilty to count 1 on the second presentment, we would have sentenced him to 2 years and 6 months’ imprisonment.
We would order that the prisoner be declared a registrable offender under the Sex Offenders Registration Act 2004, having committed a class 2 offence under Schedule 2 of that Act. He must comply with the reporting obligations imposed by Part 3 for a period of 8 years.[72]
[72]Sex Offenders Registration Act 2004, s 34(1)(a).
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