Nabil Sadaka v The Queen
[2015] VSCA 288
•29 October 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0081
| NABIL SADAKA | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | REDLICH, WHELAN AND KAYE JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 15 October 2015 | |
| DATE OF JUDGMENT: | 29 October 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 288 | First Revision: 29 October 2015 |
| JUDGMENT APPEALED FROM: | DPP v Sadaka (Unreported, County Court of Victoria, Judge Sexton, 27 February 2015 (conviction)) | |
---
CRIMINAL LAW – Rape – Lack of capacity to consent – Applicant aware of complainant’s lack of capacity to consent to sexual acts – Section 36(e), s 38(2)(a) Crimes Act 1958 – Whether verdict unsafe and not supported by evidence – Directions to jury – Whether trial judge erred in instructions given to jury – Evidence of complainant not inconsistent – Judge’s direction sufficiently balanced –– Application for leave to appeal refused.
CRIMINAL LAW – Appeal against sentence – Whether sentence manifestly excessive – No prior convictions – Serious example of offending – Complainant suffered from mental disability – Significant breach of trust – Application for leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Nash QC with Ms J Swiney | Victoria Legal Aid |
| For the Crown | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
WHELAN JA
KAYE JA:
The applicant, who is now 62 years of age, was convicted by the jury empanelled on his trial of one charge of rape. Following a plea, he was sentenced to a term of imprisonment of 7 years, with a minimum non-parole period of 5 years. The applicant seeks leave to appeal against his conviction and sentence.
The indictment alleged one single charge against the applicant, namely, that at Glen Waverley between 1 January 2003 and 31 December 2003 he raped PM, the complainant, by intentionally sexually penetrating her by introducing his penis into her mouth without her consent, while being aware that she was not consenting or might not be consenting.
At the time of the offence, PM was a 21 year old female with a mild intellectual disability. She regularly caught the 623 bus from Carnegie in order to travel to the Holmesglen TAFE in Chadstone, where she attended classes . The prosecution alleged that, in early 2003, PM approached the applicant for assistance because she believed that she was being stalked at Chadstone Shopping Centre. At the applicant’s suggestion, she boarded the bus. The applicant drove the bus to a designated parking area in Glen Waverley. He then attempted to hug the complainant, but she ran away. Subsequently, on the next occasion that the complainant boarded the bus, the applicant again drove to the Glen Waverly car park. There, he sat at the rear of the bus, pulled his penis out of his pants, and told PM to suck it. The prosecution alleged that PM, not having any understanding of what she was doing, complied with the applicant’s direction and performed oral sex on him. PM gave evidence that, on a number of other occasions between 2003 and 2006, in similar circumstances, she performed oral sex on the applicant after he had driven the bus to the Glen Waverley car park.
The prosecution case was based on the first act of oral sex which the applicant induced PM to perform on him. The prosecution case was put on the basis either that PM was not capable of understanding the nature of the act, and as such, she was unable to consent to the act, or, alternatively, that PM submitted to the direction given to her to perform oral sex on the applicant because of force or fear of force from him.
The applicant denied that PM had oral sex with him. At the trial, the applicant also put in issue the proposition that PM did not understand, and was not in a position to understand, the nature of sexual acts.
Accordingly, the principal issues in the case were whether the jury was satisfied beyond reasonable doubt:
(1)That PM performed oral sex on the applicant as alleged;
(2)If so, when she did so, PM:
(a)was not capable of understanding the sexual nature of that act, and as such, she was unable to consent to the act; or alternatively
(b)she submitted because of force, or fear of force, from the applicant.
Grounds of appeal
The application for leave to appeal against conviction contains the following grounds:
(1)The verdict was unsafe and not supported by the evidence in that the only direct evidence of the offence, that of the complainant, was unreliable and inconsistent.
(2)The trial miscarried because the learned trial judge misdirected the jury in that her Honour stated to the jury:
(a)that Dr Torr’s evidence was that the complainant was not capable of understanding the sexual nature of the act;
(b)that the complainant’s inability to express how the act took place was ‘part of the assessment of her capacity to understand the sexual nature of the act’;
(c)that ‘it appears from the evidence that the complainant thought she might be hit if she did not do what Mr Sadaka wanted her to do;
(d)she summarised the crucial evidence of Mr Magalotti and of Ms Franchuk in two paragraphs without advising the jury that, if that evidence were accepted, it was clear that the applicant was not driving regularly on the 623 route in 2003 and could not have engaged in the pattern of behaviour described by the complainant.
(3)The verdict is unsafe and not supported by the evidence, in that a jury properly directed:
(a)could not on the evidence be satisfied that the complainant did not consent to sucking the applicant’s penis;
(b)could not be satisfied at the time of the alleged offence the applicant did not believe that the complainant was consenting to the act or that he acted without regard to whether or not she was consenting.
The evidence
The complainant gave her evidence by way of a VARE. She said that during the period that was relevant to the case, she would take the 623 or 627 bus from near her home on Koornang Road, Carnegie to Chadstone Shopping Centre, and she would then take the 700 bus to the Holmesglen TAFE. Conversely, in order to go home, she would catch the 700 bus from the TAFE to Chadstone, and then she would take the 623 or 627 bus to Carnegie. PM first knew the applicant in 2000, when he would drive the 623 bus on which she travelled in either direction.
The complainant stated that, in 2003, a young man, Jarryd, began to stalk her at Chadstone. As a result, she went to the applicant for help. On the first occasion on which she did so, he drove the bus from Chadstone to Glen Waverley, where he parked the bus at the terminal. There the applicant tried to give PM a hug. She ran away, and took the train back to Holmesglen, where she went to the gym.
A few days later, she saw the applicant again at Chadstone. He told her to get onto the bus. She entered the bus, and he drove again to the Glen Waverley terminal. When he parked the bus there, he sat on the rear seat, and called for PM to come over to him. He asked PM to perform oral sex on him, and she complied with that request. She said at that time she did not know about oral sex. When asked how did she know what the applicant wanted, she replied:
When he stuck, when he wanted, when I, when I saw it sticking out…then I wasn’t sure at that time but it was coming to me a bit later.
She said that when she saw the applicant sitting with his pants opened, she realised he wanted her to do ‘that’ but she did not really understand how serious it was. PM also stated that she was afraid that the applicant would hit her if she did not comply with his request.
PM stated that oral sex took place, in the same way, on a regular basis for the next three years while she was studying at Holmesglen TAFE. She said that, on those occasions, the applicant would drive his bus to the Glen Waverley car park, where she would perform oral sex on him. She said that that occurred during the applicant’s lunch break. PM said that during those three years, she was not sure what to think about what the applicant was asking her to do. At the beginning, she did not know what would happen when she caught the bus with the applicant. But subsequently she ‘sort of knew’ what was going to happen. However, she did not know at the time whether what was happening was right or wrong. She only subsequently learnt that, because her mother explained how serious and bad it was.
PM stated that she believed that she attended the TAFE three to five days per week during the period. She said that every day that she was at the TAFE, whether at the Box Hill, Chadstone or Waverley campuses, she had lunch on campus. The applicant did not work every day of the week, and on some occasions he drove a different bus that she did not catch.
The complainant’s mother, DM, gave evidence that, from an early age, PM had a learning disability. She did not have any friends, she could not communicate, and her social skills were very poor. She did however have a good memory. She had seen various psychologists over the years, and various assessments had been made of her.
DM said that, in 2011, PM told her that the applicant had asked her to go to the terminal station, and that when they got there, the applicant sat in the back of the bus with his pants off, with his penis out, and asked her to come to him. PM told DM that on the first occasion, she ran away, but that after that she started to suck his penis, because she could not say ‘no’. PM told her mother that that behaviour began in 2004 and it went on until 2007.
PM’s father, VM, also gave evidence. He said that PM had been assessed as having a mild intellectual disability, that she did not want to upset people, and that she would ‘feel no good if someone not happy with her’. VM stated that, some years ago, PM had told him that there was a young man who followed her and annoyed her at around the Chadstone bus terminals. VM advised her several times to seek help from the bus drivers if that occurred.
PM’s brother, AM, gave evidence that, because of her disability, PM found it difficult to build relationships or to interact in a normal way with other people. He said that his sister had great difficulty completing assignments that had been set for her at the TAFE college, and that he and his parents spent time with PM to help her to complete them.
Dr Torr, a psychiatrist, specialising in psychiatry of the elderly and of persons with intellectual disability, gave evidence that she conducted three interviews with PM for the purpose of assessing whether PM’s cognitive impairment precluded her from understanding the sexual nature of the act that she said she had performed with the applicant.
Dr Torr stated that the applicant, on testing, had scored a full scale IQ of 68, which fell within the range of a mild intellectual disability. She said that the complainant’s executive functioning was quite impaired compared to her other abilities. Dr Torr explained that executive functioning is the ability to know what to do in given contexts. It also involves problem solving.
Dr Torr stated that brain maturation continues to occur in late adolescence and into the mid-20s. During that period, a person develops the capacity to reason and understand further. Thus, at the age of 21 years, PM’s ability to reason and understand complex situations or concepts would have been less than when she was first assessed by Dr Torr in 2011.
Dr Torr said that when she discussed the matter with her, PM was quite clear that she did not understand what she was being asked to do when she was on the bus. In particular, Dr Torr considered that PM did not understand the sexual nature of the act that she was performing with the applicant. Dr Torr stated:
She…she didn’t understand fully what was going on, but also didn’t understand the sexual nature of the act as opposed to just a physical act.
Dr Torr further expressed the view that PM did not understand that she had a right to either consent to, or refuse to participate in, the act that the applicant wished her to perform on him. Even if she felt uncomfortable with performing the act, or did not want to do it, she did not have the capacity to extricate herself from the situation, because her executive functioning was deficient. PM told Dr Torr that she felt forced to put her hand on the applicant’s penis and put it in her mouth. She said that she was confused and frightened, and that she did not know what to do. In particular, PM did not understand that it was something that she actually needed to consent to doing. Dr Torr stated, by way of conclusion:
…she neither understood in terms of what she would have been consenting to because she didn’t actually understand what it was that was happening other than she was putting the penis in her mouth… So there’s not understanding an act to consent to, but also not understanding what consent is. So it’s two parts. One is about the actual act and not understanding it, but not actually understanding the consent, that consent is freely given for… .
Irena Franchuk gave evidence that she commenced studies at Holmesglen TAFE in February 2004. She travelled to the TAFE on the 624 bus, and she met the complainant on that bus in February 2004. She also met the applicant in 2004 when he was the bus driver on route 624. The applicant was driving the bus for the whole of the time that she was at the TAFE from 2004 to 2006.
Mr Magalotti, the operations manager at Driver Bus Lines from the end of 2006, gave evidence that in early 2007, the applicant, who was then the permanent driver on the 624 bus route, took over the 623 bus route when the permanent driver on that route retired.
The applicant did not give evidence, but the interview, conducted with him by the police, was tendered in evidence. In that interview, the applicant said:
·At the time he was a driver on the 623 route.
·During that time he came to know PM.
·PM was a customer on the bus. He said she was a ‘mentally retarded person’, who had ‘the brain of a 10 year old’.
·While PM had her moments, when you spoke to her you were talking to a 10 year old child. She acted and talked like a 10 year old, and she understood things like a 10 year old child.
·He said … ‘anyone who would have taken … sexual advantage of a person like this, that’s a child molester’.
·The applicant denied having any conversations of a sexual nature with PM, and that she had oral sex with him. He said:
She wouldn’t understand it if it — talk to her. How can I have a conversation like this? You know, you talk about matters like there’s someone who can understand them, but someone like her, would you talk to a 10 year old child about something like that? I wouldn’t. I dunno about other, but I wouldn’t bring that subject.
·The applicant stated:
From the beginning I knew her mental capacity is not with it… so to me I was dealing with a child, not with an adult. I’ve always spoke to her as a child. I always treat her as a child.
Legal principles: Grounds 1 and 3
Grounds 1 and 3 of the application each allege that the verdict of the jury was unsafe and not supported by the evidence, for the particular reasons stated in the ground. Both of those grounds are based on s 276(1)(a) of the Criminal Procedure Act 2009, which requires the court to allow an appeal if the appellant satisfies the court that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.
The principles, that apply to such a ground, are well established. The test to be applied by the court is whether it was open to the jury, on the evidence, to be satisfied beyond reasonable doubt of the guilt of the accused on the charges that are the subject of the appeal.[1] Thus, for the ground of appeal to succeed, it must be demonstrated that the jury must (as distinct from might) have entertained a doubt about the appellant’s guilt.[2] In considering that question, the appeal court must bear in mind that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that the jury has had the benefit of seeing and hearing the witnesses.[3]
[1]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v R (2011) 243 CLR 400, 405 [11] (French CJ, Gummow and Kiefel JJ).
[2]Libke v The Queen (2007) 230 CLR 559, 596-7 (Hayne J, with whom Gleeson CJ and Heydon J agreed).
[3]The Queen v Nguyen (2010) 242 CLR 491, 499 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ); SKA v The Queen (2011) 243 CLR 400, 405 [13] (French CJ, Gummow and Kiefel JJ); R v Klamo (2008) 18 VR 644, 653-4 [38] (Maxwell P, Vincent and Neave JJA).
Ground 1
Ground 1 is essentially based on the proposition that the only direct evidence of the offence, namely that of the complainant PM, was unreliable and inconsistent. In support of that proposition, it was submitted on behalf of the applicant that there were a number of inconsistencies in the evidence of the complainant, which were such as to render the verdict, based on her evidence, to be unsafe and unsupported by the evidence.
First, it was submitted that in the VARE, the complainant gave evidence that the first time she went on the bus to Glen Waverley with the applicant, he tried to hug her, but she ran away. On the other hand, PM’s mother, DM, gave evidence that when PM told her about that incident (in 2011), PM said that on the first occasion, when she ran away, the applicant tried to cause her to engage in oral sex with him.
Secondly, in her VARE, the complainant stated that oral sex began in 2003, and continued for three years, and that it always happened at lunch time, when she was called onto the bus by the applicant to help her relating to the stalker Jarryd. On the other hand, in cross-examination the complainant said she only saw Jarryd at one lunch time and that was in 2003 when her teacher was sick, and on that occasion she stayed at Chadstone Shopping Centre after seeing Jarryd and caught a later bus home.
Thirdly, the complainant said that she was at the TAFE three to five days per week for three years when the repeated sexual acts took place, that those acts always took place when the applicant was having his lunch break, but during this time she always had her lunch on the TAFE campus when she was studying.
Fourthly, in her VARE evidence, PM stated that, after the first occasion in 2003, she continued to have oral sex with the applicant throughout the next three years, on a regular basis. In cross-examination, PM agreed that, during the first half of 2004, she attended the Waverley Campus of the Holmesglen TAFE, and during that period of time, she did not have oral sex with the applicant.
In our view, none of the matters, relied on by the applicant, support the conclusion contended for, namely that it was not open to the jury to convict the applicant on the basis of the evidence of the complainant PM.
It is correct that there was an inconsistency between the evidence given by the complainant about the first occasion that she went on the bus to Glen Waverley with the applicant, and the complainant’s mother’s evidence as to what PM told her concerning that incident. However, as pointed out by counsel for the respondent, such an inconsistency, or difference, between the evidence of the two witnesses, did not render the evidence of the complainant unreliable or unsafe.
The second point, relied on by the applicant, is based on a misconception of the evidence. The complainant did not state that the offending occurred on each occasion on which she sought assistance from the applicant regarding Jarryd. Rather, she stated that the offending commenced when she sought assistance from the applicant regarding Jarryd. Thus, there was no relevant inconsistency in the evidence given by the complainant.
Nor does the third point made by the applicant demonstrate any relevant inconsistency in the evidence of the complainant. In her evidence, the complainant said that, after the first occasion, the repeated sexual acts took place when the applicant was having his lunch break. That evidence is not inconsistent with the complainant having her lunch on the TAFE campus. Further, and significantly, in his recorded interview with the police, the applicant stated that the complainant came with him ‘a few times’ to Glen Waverley when he was on his meal break. On those occasions he said that he would give her food to eat and then take her back to Chadstone. When asked whether the complainant ever went with him on the bus to the lunch stop, he said ‘come to think of it, yeah, a couple of times … she came all the way to Glen Waverley’.
The fourth point, made by the applicant, does reveal an inconsistency between the evidence given by the complainant on the VARE, and her evidence under cross-examination. However, that inconsistency did not compel a conclusion by the jury that it should not rely on the evidence of the complainant, particularly relating to the incident in 2003 on which the charge of rape was based. The jury was entitled to consider, for example, that, because the VARE did not take place until 2011, PM, by then, might have overlooked the fact that there was an hiatus in her relationship with the applicant, due to the fact that she was then studying on a different campus.
In the course of his submissions, in respect of Ground 3(a), senior counsel for the applicant also referred to what he contended was a difference or inconsistency, in PM’s VARE evidence, as to what she understood the applicant wanted her to do on the first occasion on which she had oral sex with him. At an early stage in the interview, PM said that she did not know what was going on, but she knew what he wanted to do, when she saw him sitting with his pants opened and his penis sticking out. Subsequently in the interview, when she was taken in more detail to that first occasion, she stated that when she saw the applicant in that position, he called her over, and ‘was asking me … to do it’.[4]
[4]Question 484.
In our view, there is not a necessary inconsistency between the two passages in PM’s evidence, as contended by counsel. The jury was entitled to consider that the first passage, relied on by the applicant’s counsel, was a compendious summary of the first occasion on which PM had oral sex with the applicant, whereas the later account given in the interview was more fulsome, when she was taken through it in more detail by the questioner. In addition, we note that at an earlier stage in the VARE evidence than that relied on by counsel for the applicant, in a passage in PM’s evidence in which she appeared to be recounting the first occasion of oral sex, she said that the applicant ‘asked me to suck his penis’.[5]
[5]Questions 76, 77.
For those reasons, the applicant has not demonstrated that the evidence of the complainant was so inconsistent that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on the basis of her evidence.
Further, taking into account her intellectual limitations, PM’s evidence, in the VARE, and under cross-examination, was given by her in a coherent and consistent manner, particularly as to the incident that was the subject of the charge. The applicant has not demonstrated any reason why the jury could not be satisfied, beyond reasonable doubt, of the evidence given by PM, in relation to the circumstances of the incident that constituted the offence, and, indeed also of the circumstances of the uncharged acts related by PM. The jury had the advantage of seeing and observing PM, on the VARE examination, and under cross-examination. As the authorities, to which we have referred, make plain, it is important that this Court keep in mind that it was the jury, and not this Court, that was entrusted with the primary responsibility of determining whether it was satisfied beyond reasonable doubt of the guilt of the applicant.
In addition, the evidence given by PM was, to a limited degree, supported by parts of the applicant’s interview with the police. In particular, the applicant told the police that at the relevant time he drove route 623 while the complainant was a passenger on the bus. Consistently with the evidence given by PM, the applicant stated that he did take PM with him to Glen Waverley for lunch on a few occasions. Also consistently with the evidence of PM, he told the police that he gave PM lollies and chocolates on occasions. He stated that on some occasions he gave PM a hug, or that she gave him a hug. In our view, those aspects of the applicant’s interview would have entitled the jury to consider that the relationship between the applicant and the complainant was, at the least, more than that of bus driver and customer.
For those reasons, the applicant has failed to make out ground 1.
Ground 2
Ground 2 of the application is that the trial judge misdirected the jury in four respects. The first three matters relied on relate to the issue of consent. The fourth matter relates to the question whether the applicant regularly drove route 623 in 2003. It is convenient to deal with each of those sub-grounds individually.
Ground 2(a) is to the effect that the judge misdirected the jury that Dr Torr’s evidence was that the complainant was not capable of understanding the sexual nature of the act. In that respect, the judge, in the course of her final charge, stated:
Mr Hennessey (the prosecutor) submitted that after her assessments of (PM), Dr Torr formed the opinion — Mr Hennessy submitted this, but this is in fact the evidence, that Dr Torr formed the opinion that (PM) was not capable of understanding the sexual nature of the act in 2003 and she added that in her opinion, (PM) still — at the time of the VARE in 2011 and now in 2015 — lacks the capacity to understand.
It was submitted on behalf of the applicant that that direction to the jury, concerning the effect of Dr Torr’s evidence, was erroneous, because the evidence of Dr Torr was that the complainant did not understand the sexual nature of the act. It was submitted that Dr Torr’s evidence was not that the complainant ‘could not’ understand the sexual nature of the act which she said she performed with the applicant.
The point made by the applicant, in this respect, is unsupported by the evidence, and, in any event, is inconsequential.
Early in her evidence, Dr Torr agreed that the matter, which she was asked to advise on, was whether the complainant’s cognitive impairment precluded her from understanding the sexual nature of the act. Thus, she was directed to the question of the complainant’s capacity to understand the sexual nature of the acts that she performed with the applicant. Dr Torr then gave evidence as to the complainant’s intellectual disability, and her reduced executive functioning. She stated that, as brain maturation is not complete until the mid-20s, the complainant’s capacity to reason and understand complex situations or concepts would have been less than when Dr Torr first assessed her in 2012. That evidence was clearly directed to PM’s intellectual capacity. It was in that context that Dr Torr stated that, when she initially assessed the complainant (in 2012), the complainant did not understand the sexual nature of the act that she performed with the applicant. Dr Torr said that it is possible for a person to describe what happens in a sexual act, without actually understanding the sexual nature of that act.
Later in her evidence, Dr Torr agreed that the complainant’s inability, in 2003, to describe to other people what had happened, was relevant to the question of whether she was incapable of understanding the sexual nature of the act.[6] She then stated:
I would say her capacity back in 2003 was that she didn’t understand fully what was going on, but also didn’t understand the sexual nature of the act as opposed to just a physical act.[7]
[6]T 477.
[7]T 484.
Finally, near the conclusion of her evidence in chief, Dr Torr again noted that the question that was addressed to her related to her professional opinion whether or not the complainant ‘could understand the sexual nature of the act’ she said she performed with the applicant.[8]
[8]T 494–5.
The passages of the evidence of Dr Torr, to which we have referred, make it plain that Dr Torr did state, in her evidence, that in her opinion PM was not capable of understanding the sexual nature of the acts that she performed with the applicant. Accordingly, the passage in the charge of the trial judge, to which exception is now taken, was a correct reflection of the evidence of Dr Torr.
In any event, as we stated, the point raised by sub-paragraph (a) of ground 2 is inconsequential. The passages of the interview of the applicant, which we have earlier summarised, are themselves sufficient to support a conclusion by the jury, beyond reasonable doubt, that at the relevant time, PM was incapable of understanding the sexual nature of the acts that the applicant was alleged to have performed with her. The whole basis of the ‘defence’ mounted by the applicant in his interview was that he knew that because of PM’s mental disability, she was not capable of understanding the sexual nature of such acts, and therefore it was unthinkable that he would have performed those acts with her. That proposition, stated repeatedly by the applicant in his interview, was, of itself, sufficient proof of that element of the offence charged against the applicant.
Ground 2(b) is that the judge misdirected the jury by stating, in her charge, that the complainant’s inability to express how the act took place was ‘part of the assessment of her capacity to understand the sexual nature of the act’.
In that part of her charge, the judge noted that trial counsel for the applicant in final address had submitted that Dr Torr’s evidence was not of importance, as it was in keeping with the applicant’s view about PM’s capacity, but that trial counsel had queried how Dr Torr could assess PM’s capacity to understand, if Dr Torr could not find out from PM how the actual act took place. The judge then stated:
This is a comment of mine which you are free to ignore, but you might think that that question answers itself. If (PM) lacks the ability to express how the act took place, that is part of the assessment of her capacity to understand the sexual nature of the act.
It was submitted on this application that the judge erred in making that comment, because the complainant’s inability to state how the act took place has no logical relevance to the complainant’s capacity to understand the sexual nature of that act.
There is no substance to the point raised by sub-paragraph (b) of ground 2. First, the part of the charge relied on was clearly identified by the judge as a comment which the jury was free to ignore. Secondly, in any event, that comment was squarely based on the evidence of Dr Torr, who stated that the fact, that PM could not explain how the act took place, was relevant to her capacity to understand the sexual nature of the act. The applicant has not demonstrated that it is illogical to reason that the fact, that the complainant could not describe in words to Dr Torr the act that she performed with the applicant, was relevant to the conclusion that the complainant did not understand the sexual nature of that act.
Ground 2(c) is that the judge misdirected the jury by stating that it appeared from the evidence that PM thought she might be hit, if she did not do what the applicant wanted her to do.
The point, made on this application, is that although the complainant did, at one stage, state that she feared that she might be hit if she did not do what the applicant wanted her to do, the more consistent theme in her evidence is that she did not know how to avoid doing what she was asked to do. Thus, it was submitted that the judge’s direction, on this point, gave undue emphasis to one small piece of evidence that the complainant thought that she might be hit.
There is no substance in that ground. In the part of the directions, to which exception is taken, the judge instructed the jury as to the alternative bases upon which the jury might find that PM did not consent to the acts that she said she performed on the applicant. The judge told the jury that the issue, whether PM was not consenting, was not confined to the question as to whether she had the capacity to understand. The judge said:
If you are satisfied beyond reasonable doubt of any basis arising from the evidence that she was not consenting, then this third element will be proved. So, for example, it appears from the evidence that (PM) thought she might be hit if she did not do what Mr Sadaka wanted her to do, and as you know, this is an alternative way that the prosecution puts this element. Their primary submission is, of course, that (PM) was unable to consent due to her intellectual disability.
The judge was required to direct the jury on the alternative bases, upon which the prosecution put its case on the element of consent. The passage, to which exception is now taken, did not, in our view, unduly emphasise the evidence of the complainant when, in the VARE, she said that she thought she would be hit if she did not comply with the wishes of the applicant.
Ground 2(d) is a complaint by the applicant that the judge did not give the jury appropriate direction concerning the relevance of the evidence of Mr Magalotti and Ms Franchuk. It was submitted that the evidence of those two witnesses, if accepted, rendered it unlikely that the complainant’s evidence was correct. Thus, it was submitted, to summarise that evidence in ‘a bare two paragraphs’, without commenting on its significance, rendered the charge unbalanced.
In her charge, the judge did not summarise any of the evidence in any detail. No doubt that was because the trial was short, and the judge did provide a copy of the transcript to the jury. Nevertheless, the judge, in summarising trial counsel’s submissions, pointed to the evidence of Ms Franchuk and Mr Magalotti, that the applicant drove the 624 route in 2004 and in subsequent years. The judge also directed the jury that, in order to rely on the answer given by the applicant in his interview, that he drove the 623 route, the jury must be satisfied beyond reasonable doubt that the applicant said those words, and that they were true. The judge directed the jury that if it was not satisfied beyond reasonable doubt that the applicant was driving the 623 bus on the occasion of the offence in 2003, then the jury must find the applicant not guilty.
Taking those matters into account, the direction given to the jury, about that aspect of the case, including the relevance of the evidence of Mr Magalotti and Ms Franchuk, was sufficiently balanced and did not constitute a misdirection.
For those reasons, the applicant has failed to demonstrate any material misdirection by the judge to the jury. Ground 2 of the application must therefore fail. We are fortified in that view by the fact that trial counsel for the applicant did not object to any of the parts of the charge, which are the subject of ground 2.[9] While the failure of trial counsel to take exception may not be decisive, nevertheless it indicates that counsel, at the time, in the context of the trial, did not perceive any relevant error by the judge in directing the jury as to the salient issues in the trial.[10]
[9]Cf Xypolitos v R [2014] VSCA 339, [32] (Redlich, Tate and Priest JJA).
[10]See R v Clarke & Johnstone [1986] VR 643, 662–3 (Crockett, McGarvie and Southwell JJ); MB v R [2012] VSCA 248, [15] (Beach AJA); Cox v R [2015] VSCA 28, [37] (Weinberg, Priest and Beach JJA).
Ground 3
Ground 3 of the application is that the jury’s verdict is unsafe, and not supported by the evidence, in that a jury properly directed could not, on the evidence, be satisfied beyond reasonable doubt, first, that the complainant did not consent to performing oral sex with the applicant, and, secondly, that at the time of the alleged offence the applicant did not believe that the complainant was consenting to the act, or that he acted without regard to whether or not she was consenting.
On behalf of the applicant, it is contended that there was no evidence that the complainant was incapable of consenting to the act of oral sex. In particular, counsel submitted that there was no evidence that the complainant did not understand the nature of the act; there was only evidence that she did not think that the act would be considered to be wrong. In particular, counsel for the applicant pointed to the part of the complainant’s VARE evidence in which, in response to the request by the interviewer to describe how she knew what the applicant wanted, she said: ‘Because I saw ,when he was sitting, I saw his pants weren’t opened … I realised that he wanted me to do that but I didn’t understand how serious this was’. In answer to the question how she understood that the applicant wanted her to suck his penis, she said: ‘Because he was, he was like, his pants was opened… and it was sticking out’.[11]
[11]Questions 97–100.
Counsel submitted that that evidence was insufficient to establish, beyond reasonable doubt, that the complainant did not understand the sexual nature of the act that she performed at the request of the applicant.
Insofar as the prosecution case was based on the proposition that the complainant was concerned that she might be hit if she did not perform oral sex on the applicant, counsel for the applicant pointed out that, on her own account, the complainant willingly got onto the bus, and travelled in the wrong direction, three or four times per week for three years to perform oral sex on the applicant. If she were afraid of being hit, or if she did the act out of fear of being hit, it was not necessary for her to get onto the bus and travel in the wrong direction. Further, the complainant did not give any evidence that she was threatened by the applicant.
In addition, it was submitted that there was no evidence before the jury that the applicant did not believe the complainant was consenting, or that he believed the complainant was incapable of consenting, or that he engaged in the actions of oral sex with the complainant giving no regard to whether or not the complainant was consenting to those acts.
Ground 3 is directed to the issue of the complainant’s consent to performing oral sex with the applicant, and the applicant’s knowledge that she was not consenting. At the time of the offence, s 38(2)(a) of the Crimes Act 1958 provided that a person committed the offence of rape if that person intentionally sexually penetrated another person without that person’s consent while aware that that other person was not, or might not be, consenting. Section 36 of the Act defined the meaning of consent. It provided that consent ‘means free agreement’. Section 36 provided that the circumstances in which a person does not freely agree to an act included those specified in subparagraphs (a) to (g) of the section. Subsection 36(e) provided that a person did not consent where the person was ‘incapable of understanding the sexual nature of the act’.[12]
[12]A more expansive version of s 36 (as it was at the time of the offending) is now contained in s 34C of the current Crimes Act. Section 34C(1) of the current Act is identical to s 36(e) of the former provisions.
In construing s 36(e), in the context of the legislation applicable to this case, it is important to note that the concept of consent was concerned, essentially, with persons above the age of 16 years. Subparagraphs (a) to (d) of s 36 were concerned with an absence of consent on the basis that the complainant had submitted because of force or fear of force, because of fear of harm, because he or she was unlawfully detained, or because he or she was asleep, unconscious or so affected by alcohol or another drug to be incapable of freely agreeing. In that context, s 36(e) was specifically directed to the capacity of the complainant to understand the sexual nature of the particular act. It therefore focused on the intellectual or mental capacity of the complainant to understand that matter. The provision thereby recognised that notwithstanding that a person is of sufficient age to ordinarily understand the sexual nature of an act which at law constitutes sexual penetration (which is the basis of a charge of rape), nevertheless that person might lack the mental or intellectual capacity to have that level of comprehension.
It would seem that s 36(e) derived from the decision of the Full Court of Victoria in R v Morgan,[13] in which the court held that, where the capacity of the complainant to consent is in issue, in order to establish that the complainant did not have that capacity, the prosecution must prove that the complainant did not have sufficient knowledge or understanding to comprehend either —
(a) That what was proposed to be done was the physical act of penetration, or
(b) That the act of penetration proposed was one of a sexual connection as distinct from an act of a totally different character.[14]
[13][1970] VR 337 (‘Morgan’).
[14]Ibid, 341.
In Morgan’s case, the trial judge had directed the jury that the complainant would not have knowledge or understanding of the act performed by the accused, if the complainant did not understand any one of a number of matters enumerated by him, including the concept of virginity, penetration, or what the judge described as ‘the social significance of the act’.[15] The Full Court held that that direction was erroneous, because the capacity to consent did not necessarily involve knowledge or understanding of any of the ingredients enumerated to by the trial judge. The court stated that if the complainant had knowledge or understanding that the act involved penetration of her body by the male organ, and that that act of penetration was one of sexual connection as distinct from an act of a totally different character, then the complainant had sufficient knowledge and understanding to be able to consent. However, and relevantly, the court then stated:
Nothing that we have said is, of course, intended to suggest that considerations of the nature referred to by the learned judge in his charge are outside the purview of the jury, as the tribunal of fact, in arriving at a conclusion as to the state of the girl’s knowledge or understanding in the relevant sense at the material time.[16]
[15]Ibid, 339.
[16]Ibid, 342.
Subsequently, in R v Mobilio,[17] the Court of Criminal Appeal of Victoria, referring to that passage in Morgan, stated:
In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct. We think the court is to be understood as meaning that in saying that those things are not outside the purview of the jury.[18]
[17][1991] 1 VR 339.
[18]Ibid, 351 (Crockett, McGarvie and Beach JJ); see also R v Eastwood [1998] VSCA 42, [28]–[34] (Phillips CJ); R v Beserick (1993) 30 NSWLR 510, 531 (Hunt CJ at CL).
Bearing those principles in mind, in our view, there was ample evidence before the jury upon which it could be satisfied, beyond reasonable doubt, first, that the complainant was not capable of understanding the sexual nature of the act that she performed with the applicant, and, secondly, that the applicant was aware that the complainant was not capable of that understanding.
The starting point is the evidence of the complainant PM. Viewed as a whole, it was clearly open to the jury to conclude that, at the time of the offence, PM did not understand the sexual nature of the act of oral sex that she performed on the applicant.
The reference, by counsel for the applicant, to one part of the complainant’s VARE’s evidence was highly selective. Subsequent to the passage relied on by counsel, was the following passage:
Question Okay. How did you know about oral sex?
Answer Well I didn’t. At that time I didn’t.
Question… so you, you’ve said to me that you knew what he wanted. How did you know what he wanted?
AnswerWhen he stuck, when he wanted, when I, when I saw it sticking out … then I wasn’t sure at that time that it was coming to me a bit later.
QuestionOkay how did you know about things like that, about sex things?
Answer At that time, no, but not until later.
Question Okay. You said you weren’t sure what you were doing.
Answer No, no, not … at the start not … at the start of it.[19]
[19]Questions 215 to 221.
Subsequently, when the complainant was asked how, during the three years that she was giving the applicant oral sex, she felt about it, the complainant said: ‘I wasn’t sure what to think’.[20]
[20]Questions 411 to 412.
Later, she said that she did not know at the time what was right or wrong, she did not know that what she was doing was a ‘really bad thing to do’, and she only learnt that later when her mother explained it to her.[21]
[21]Questions 591 to 597.
Finally, near the end of the interview, the following exchange took place:
QuestionOkay. Did you give Nabil permission for you to engage in sex with him?
AnswerWell, I didn’t know at the start what was happening, and I didn’t know, like, I didn’t know what was at the beginning, and I didn’t have any understanding of that.
Question Okay. And when did you have that understanding?
Answer Not until my mum explained it to me.
Taken together, the passages in the VARE, to which we have just referred were, of themselves, a firm basis for the jury to conclude beyond reasonable doubt that, at the time of the offence, PM did not understand the sexual nature of the act that the applicant induced her to perform on him. Understandably, trial counsel did not seek to directly challenge PM in cross-examination on that aspect of her evidence.
The conclusion, that PM did not understand the sexual nature of the act, that she performed on the applicant, is not the same as a conclusion that PM was not capable of understanding that matter. However, given the nature and degree of PM’s intellectual and social impairment, her lack of understanding, of the sexual nature of the act, was a substantial consideration supporting a conclusion that she did not understand that matter because she was not capable of understanding it.
In addition, the complainant’s parents, and her brother, each gave evidence as to the complainant’s intellectual impairment, and as to the difficulty that she experienced in having normal relationships or interactions with other people. That evidence was relevant to explain why PM did not have an understanding of the sexual nature of the act she performed with the applicant. It provided cogent support to the evidence of Dr Torr, that, at the time of the offence, the complainant was not capable of understanding the sexual nature of the act. Finally, on that aspect of the case, the jury were also entitled to take into account the statements made by the applicant himself in his interview, that the complainant had the mentality of a 10 year old child, that she was mentally retarded, and that a sexual act with the complainant would be ‘like molesting a child’.
For those reasons, we do not uphold Ground 3(a) of the application.
Ground 3(b) involves the question whether it was open to the jury to be satisfied beyond reasonable doubt that, at the time of the offence, the applicant did not believe that the complainant was not, or might not have been, consenting to the act.
At the time of the offence (2003), the Crimes Act did not contain s 37AA of the Act, which was introduced by the Crimes Amendment (Rape) Act 2007.[22] Accordingly, the principles stated by this Court in Neal v R[23] did not apply to the determination by the jury of the accused’s state of knowledge as to the complainant’s lack of consent. Thus it was common ground, at the trial, and on appeal, that in order to establish that the accused was aware that PM was not, or might not have been, consenting, it was sufficient for the prosecution to prove, beyond reasonable doubt, that at the time of the act, the accused was aware that PM was not, or might not have been, capable of understanding the sexual nature of the act that he performed with her.
[22]Compare and contrast Juries Directions Act 2015 s 47.
[23](2011) 32 VR 454, 477-8 [79]–[80] (Nettle and Redlich JJA, Kyrou AJA); see also Wilson v R (2011) 33 VR 340, 372-3 [130]–[131] (Redlich JA and Kyrou AJA).
The evidence, that we have earlier referred to, demonstrates that the jury was well entitled to conclude beyond reasonable doubt, from the evidence, that the applicant knew that PM was not capable of understanding the sexual nature of the acts he induced her to perform on him, and therefore that she was not consenting to those acts.
As we have earlier noted, the applicant, on a number of occasions, in his interview, described PM as being mentally retarded, with the mind of a 10 year old child. The jury were entitled to conclude, from those statements, that the applicant well understood that, because of her intellectual impairment, PM had the capacity, or lack of capacity, to understand and consent to a sexual act akin to that of a 10 year old child. That conclusion would have been reinforced by the statement made by the applicant, twice during his interview, that he would have regarded the conduct of a sexual act with PM as the equivalent of child molestation. Taking that evidence into account, it was clearly open to the jury to conclude that the applicant knew that PM was not capable of understanding the sexual nature of the acts that he induced her to perform on him, and therefore that she did not consent to those acts.
For those reasons, it was open to the jury to be satisfied, beyond reasonable doubt, that PM did not consent to the acts that she performed with the applicant, and that the applicant was aware that PM was not consenting to those acts. It follows that ground 3 of the application for leave to appeal against conviction must fail.
The sentence
The application for leave to appeal against the sentence imposed on the applicant is based on the single ground that the sentence was manifestly excessive.
In support of that ground, counsel pointed out that the applicant, at the time of sentence, was 62 years of age, with no previous criminal record. He had a good work record. A period of some years nine years had passed since the offence, during which he had not committed any further criminal offence. In respect of the offending, counsel pointed out that the complainant was not subject to any threats, or, it would seem, placed under any pressure, to perform the acts that constituted the offence. It was further submitted that the judge erred in sentencing on the basis that the offence was not located well within the ‘bottom quartile of seriousness’.
The courts have emphasised that the ground of manifest excess is a stringent one, which is difficult to make good. In particular, error, on the basis that the sentence is manifestly excessive, will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options’ available to the sentencing judge. The sentence, imposed on an offender, is the product of the exercise of a judicial discretion, so that minds might reasonably differ, quite substantially, as to the sentencing result in a particular case. It is the role of the judge at first instance, and not this Court, to determine the sentence that is to be imposed in any particular case. This Court may only interfere if the sentence, imposed by the judge at first instance, is demonstrated to have been materially affected by error by the judge.[24]
[24]Clarkson v R (2011) 32 VR 361, 384 [89].
The judge sentenced the applicant on the basis that the offence, for which he was convicted, was a relatively serious example of such a crime. It involved an abuse of trust imposed in the applicant by PM, and the trust placed in bus drivers, such as the applicant, by PM’s parents. PM was vulnerable, in light of her intellectual disability. The applicant was clearly aware of her disability, and he used that knowledge to take advantage of PM’s vulnerability. Further, the applicant persisted in his conduct of calling PM onto the bus, notwithstanding that, on the first occasion on which he endeavoured to induce PM to engage in oral sex with him, she ran away. The judge also noted that the applicant had shown no remorse, and the incident, in respect of which he was convicted, was not an isolated incident. Based on all of those factors, the judge characterised the applicant’s moral culpability for the offending as high.
In mitigation, the judge recognised that the applicant had no previous convictions, and was a person of previous good character. He had worked continuously as a bus driver from 1990 to 2013. The judge recognised that the fact that because the applicant was commencing a sentence of imprisonment at his age, when he had never committed a previous crime, it would be difficult for him. The judge also took into account that a period of nine years had passed since the time in which any sexual act could have occurred with PM, and during that period of time the applicant had not offended again in any way.
In addition, the judge took into account that, before the applicant was convicted of the offence, he was well regarded in the community. There was no evidence that he had any physical or mental health issues, or that he suffered from a psychosexual disorder. The judge considered that the applicant’s prospects of rehabilitation were reasonable.
It is correct, as counsel for the applicant has pointed out, that the offending did not involve any acts or threats of violence by the applicant. However, and notwithstanding that consideration, in our view the judge correctly recognised the serious features of the offending committed by the applicant.
As the judge observed, the offending by the applicant involved a significant breach of trust reposed in him, both by the applicant, and by her parents, by virtue of his office as a bus driver in the State’s public transport system. On his own admission, the applicant well knew that PM had a marked intellectual and social disability, and he regarded her as a child. He clearly understood that what he did was wrong. As we have earlier pointed out, he characterised the offending of which he was accused as tantamount to child molestation. Thus, he knowingly took advantage of a vulnerable, mentally impaired young woman. Notwithstanding that, when he first made an approach to PM, she fled, he nevertheless persisted, and on the next occasion he inveigled her to indulge in oral sex with him.
The applicant was not able to rely on any significant mitigating factor, such as impairment of his own mental functioning. Rather, the offending occurred for his own sexual gratification. Further, in light of the judge’s findings that, subsequently, the applicant indulged in further acts of oral sex with PM, the applicant was not able to rely on the fact that the offending was a single isolated incident. In those circumstances, the judge correctly characterised the offence as one which was ‘a relatively serious example’ of the crime.
As we have noted, counsel for the applicant has submitted that the judge erred by not classifying the offence as being ‘located well within the bottom quartile of seriousness’. That phrase itself is inappropriate. Properly understood, sentencing is not based on an assessment as to where the particular offence, for which a person is to be sentenced, fits in some statistical calculation of offences of the same kind. Apart from considerations of baseline sentencing — which do not apply to this case — a consideration based on some statistical analysis of where the crime, committed by the offender, fits within offences of that type, is inconsistent with proper and just sentencing principles.
Of course, courts regularly do characterise a particular offence as falling within a broad category, such as where it falls within the lower, medium, or high end of the range of offences for which a person has come before the courts for sentence. Such an assessment by sentencing judges is made in broad terms, based on the court’s general experience of offences of the type for which the offender is to be sentenced. However, to go further, and invoke some form of statistical calculation as to where a particular offence fits, is erroneous and misconceived.
In any event, as we have pointed out, the circumstances of the offence in this case strongly support the characterisation by the judge of the offence as a relatively serious example of the crime of rape. The judge properly recognised, and took into account, the mitigating factors, relating to the applicant’s background, to which we have referred. In those circumstances, while the sentence imposed on the applicant might fairly be characterised as somewhat stern, nevertheless it was within the range of sentences reasonably open to the judge.
In those circumstances, the applicant has failed to demonstrate that the sentence was manifestly excessive. The application for leave to appeal against sentence must therefore be refused.
Conclusion
For the foregoing reasons, the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should each be refused.
10
0