NJ v The Queen
[2012] VSCA 256
•19 October 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0115
| N J | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, HARPER JA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 August 2012 |
| DATE OF JUDGMENT | 19 October 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 256 |
| JUDGMENT APPEALED FROM | R v [N J] (Unreported, County Court of Victoria, Judge Lewitan, 5 May 2011) |
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CRIMINAL LAW – Conviction – Sexual offences – Whether the trial judge erred in directing the jury that if, as a result of intoxication, the accused was not aware that the complainant was not or might not be consenting or was not giving any thought to whether she was not or might not be consenting then the prosecution may not be able to prove mens rea – Direction appropriate – Whether the trial judge erred in failing to direct the jury that they could take prior consensual kissing and/or intercourse into account in determining whether the appellant honestly believed that the complainant was consenting to the subsequent sexual intercourse – Direction unnecessary and may tend to confuse burden and standard of proof – Whether the trial judge erred in admitting evidence of the complainant’s injuries, or a substantial miscarriage of justice was occasioned by the admission of that evidence, given no evidence was adduced of one possible explanation of those injuries (the complainant’s earlier sexual intercourse with another man) – Forensic decision by trial counsel not to lead this evidence – Policy reasons why it is desirable for agreements to be reached by trial counsel – Appeal against conviction dismissed.
CRIMINAL LAW – Sentencing – Appellant convicted of two charges of rape and one charge of common assault – Appellant pleaded guilty to two separate charges of sexual intercourse with a child under 16 – Sentenced to 10 years’ imprisonment with non-parole period of 7 years – Whether sentencing judge erred in treating the violence used during the rapes as an aggravating feature, where appellant had been convicted of assault – The conduct the subject of the assault charge was discrete from the violence that attended the rapes – No double punishment – Whether the individual sentences, extent of cumulation and resulting total effective sentence manifestly excessive – Appellant suffered intellectual disability – R v Verdins (2007) 16 VR 269 – Individual sentences not manifestly excessive – After cumulation, total effective sentence and minimum term manifestly excessive – Appeal against sentence allowed – Appellant resentenced to 7 years 6 months’ imprisonment with a non-parole period of 5 years.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Ms C A Boston | Haines & Polites |
| For the Crown | Mr C T Carr | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
HARPER JA:
We have had the considerable advantage of reading in draft the reasons for judgment of T Forrest AJA. We agree with the orders his Honour proposes, for the reasons which he gives.
We would particularly wish to endorse what his Honour has said about the need to avoid making the task of judge and jury in a sex offence trial more difficult than it already is;[1] and about grounds of appeal which seek to depart from the course adopted by the defence, deliberately and advisedly, at the trial.[2]
[1]See [27] below: also see Wilson v The Queen [2011] VSCA 328 [2]–[5].
[2]See [47] below: also see R v Luhan [2009] VSCA 30, [37]; Momcilovic v The Queen (2010) 25 VR 436, 479–480 [160]–[163].
So far as the sentence was concerned, we would only add that it was an unusual case in that the sentencing judge accepted that four of the six Verdins[3] principles were enlivened. As T Forrest AJA has pointed out,[4] her Honour was satisfied that the appellant’s intellectual disability:
·reduced his moral culpability (principle 1);
·meant that specific deterrence (principle 2) and general deterrence (principle 3) should be ‘sensibly moderated’; and
·would make his time in prison more burdensome than it would be for someone with normal mental functioning (principle 5).
[3]R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
[4]See [58] below.
Those conclusions having been reached, it was necessary that they be seen to be clearly reflected in the sentence, by the imposition of a lower sentence than would otherwise have been appropriate in such a case.
T FORREST AJA:
On 5 April 2011, in the County Court sitting at Bendigo, the appellant was convicted of two charges of rape and one charge of common assault. He was acquitted of three further charges of rape and another charge of common assault.
On 12 April, on a different indictment, he pleaded guilty to two charges of sexual penetration of a child under 16. These charges dealt with a separate episode and a different complainant.
On all charges, he was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation Indictment A12198855 (First indictment) 5 Rape
[Crimes Act 1958 (Vic) s 38(1)]25 years’ imprisonment
[Crimes Act 1958 (Vic) s 38(1)]
7 years’ imprisonment Base sentence 6 Rape
[Crimes Act 1958 (Vic) s 38(1)]25 years’ imprisonment
[Crimes Act 1958 (Vic) s 38(1)]
7 years’ imprisonment 6 months 7 Common assault [Common law] 5 years’ imprisonment [Crimes Act 1958 (Vic) s 320] 1 year imprisonment 6 months Indictment A11481063 (Second indictment) 1 Sexual penetration of child under 16 [Crimes Act 1958 (Vic) s 45(c)] 10 years’ imprisonment [Crimes Act 1958 (Vic) s 45] 3 years’ imprisonment 12 months 2 Sexual penetration of child under 16 [Crimes Act 1958 (Vic) s 45(c)] 10 years’ imprisonment [Crimes Act 1958 (Vic) s 45] 3 years’ imprisonment 12 months Total Effective Sentence: 10 years’ imprisonment Non-Parole Period: 7 years’ imprisonment Pre-sentence Detention Declared: 266 days 6AAA Statement: 12 years’ imprisonment, non-parole period of 9 years Other orders:
Forensic order.
On 11 October 2011 Harper JA granted partial leave to the appellant to pursue two grounds of appeal against conviction on the first indictment. Partial leave to pursue two grounds of appeal against the sentences imposed was also granted.
Appeal against conviction
First indictment
On 6 February 2010 about 60 young people attended a 21st birthday party. A great deal of alcohol was consumed. There was little apparent adult supervision. The complainant was then 15¾ years old and NJ was 23. The complainant drank beer, Jack Daniels,[5] Jagerbombs[6] and according to one witness was a participant in a Jim Beam[7] skolling competition. The appellant had commenced drinking at 10.00am.
[5]Bourbon whiskey.
[6]Usually a mix of Jagermeister (an alcoholic liquor) and an energy drink.
[7]Bourbon whiskey.
The evening wore on. At some stage the complainant and the appellant were seen kissing, although the complainant denied this. The complainant was wearing a very short black dress. A witness described it as riding up to her hips on the dance floor. She was wearing a g-string. Others said young men were pulling it up. The complainant and a young man (PJ) left the party for a time. Upon her return, she felt ill and retired to a spare bedroom. PJ lay beside her for a time and she then slept. In that room, she and the appellant had a sexual encounter. This was the subject of charges 1, 2, 3 and 4 on the first indictment. The appellant was acquitted of these charges.
The only evidence of this first encounter came from the complainant.[8] She said she initially thought the encounter was with PJ. She said she was verbally abused, beaten and penetrated orally, anally and vaginally. She escaped under the pretext of going to the toilet. Trial counsel for the appellant put to her that this first encounter involved consensual penile/vaginal penetration.
[8]The appellant made a no comment record of interview and did not give evidence.
The complainant left the bedroom but returned a short time later to retrieve her underwear. She said she locked the door but somehow the appellant was able to effect entry. She fell over and struck her head. Her next recollection was of lying on her back being vaginally penetrated by the appellant (charge 5). He struck her face, then turned her over and vaginally penetrated her from behind (charge 6). He turned her over again and sat on top of her. He struck her repeatedly (charge 7). She tried to yell for help and managed to get off the bed. The appellant grabbed her by the shoulder and hips and then pulled her hair. She managed to get to the door and open it. Another female party goer (M), described in evidence what she confronted:
WITNESS: … I went back into [D]’s room to get cigarettes for me and [N] and as I was walking out through the kitchen there’s a spare bedroom straight ahead and that’s when I witnesses [the complainant] trying to crawl out the door crying and screaming and that’s when I opened the door and [NJ] was on top of her.
PROSECUTOR: Explain everything you saw please?
WITNESS: Ok. [NJ] had his pants around one ankle, [the complainant] was completely naked. When I walked in he had an erected penis and [the complainant] was just crying and she was really scared and I just told him to get off her and he kinda just looked at me blankly and was like, ‘I’m not doing anything wrong’.
PROSECUTOR: Did he say that, or is that how he looked?
WITNESS: It’s how he looked at me and he said that after I had said to him, get off, and yeah, he wouldn’t move for a while and then I just repeating myself and at that stage I was getting very angry and scared myself, and I just kept yelling and I was getting very abusive at that stage. I started to swear because I didn’t know what else to do and then [NJ] lifted his one leg off her, so I pulled [the complainant] out from under him and I told her to put her dress on – find her dress in the bedroom and put it on, and that’s what she done and then we left the bedroom and [NJ] stayed in there.
M said she noticed hand marks on the inside of the complainant’s thighs. M’s friend (N) assisted the complainant. The complainant stated to N that she had been raped. N also observed a red mark just below the complainant’s throat. Another witness (C) gave similar evidence. The complainant left the house and caught a taxi home.
The complainant’s former boyfriend (J) spoke to her at about 7.00am. He said she was distressed. She mentioned the appellant by name and then beckoned him to a bathroom. She showed him her vagina. He said her ‘vagina in her pubic region was bruised and her vagina was bleeding, and it just didn’t look anything – and (like) what a vagina should after general sex’. There was no objection to this evidence. The complainant gave J a similar account of her encounter with the appellant. He saw some slight bruising, like finger marks on her left arm.
Grounds of appeal against conviction
During the hearing of this appeal, the appellant sought leave to add a further ground. I shall deal with each ground of appeal in turn.
Ground 1 - The learned trial judge erred in directing the jury that if, as a result of his intoxication, the accused was not aware that the complainant was not or might not be consenting or was not giving any thought to whether she was not or might not be consenting then the prosecution may not be able to prove the fourth element of rape beyond a reasonable doubt; and in particular in so directing, the learned trial judge led the jury to believe that they were not bound to acquit the appellant if his lack of mens rea[9] was due to his intoxication.
[9]Leave was granted for the appellant to substitute the words lack of mens rea for belief in the complainant’s consent.
This ground is predicated on the use of one word in an otherwise impeccable direction on intoxication. For reasons that I will endeavour to explain, the word ‘may’ is, in my view, well chosen and this ground of appeal is not made out.
In dealing with the fourth element of rape (belief in consent), her Honour correctly told the jury the following:
The prosecution must prove, beyond reasonable doubt, that at the time of sexual penetration the accused was aware that the complainant was not, or might not, be consenting, or was not giving any thought to whether the complainant was not or might not be consenting.
She went on to set out how each party relied on intoxication in unexceptional terms. She then said this:
If, as a result of the intoxication the accused was not aware that the complainant was not or might not be consenting or was not giving any thought to whether she was not or might not be consenting, then the prosecution may not be able to prove this fourth element beyond reasonable doubt.
The elements of rape are set out in s 38 of the Crimes Act 1958 (the ‘Act’) as follows:
(2) A person commits rape if –
(a)he or she intentionally sexually penetrates another person without that person’s consent –
(i)while being aware that the person is not consenting or might not be consenting; or
(ii)while not giving any thought to whether the person is not consenting or might not be consenting.
Mens rea, therefore, can be proved by actual awareness that a person is not or might not be consenting, or alternatively by proof that an accused simply did not turn his mind to the issue. Intoxication cuts both ways when this fourth element is analysed. The drunk is less likely to sense a lack of consent but is more likely to give no thought to the matter. If the jury was directed in the manner now proposed by the appellant it would have effectively been told this about s 38(2)(a)(ii): ‘If as a result of intoxication, you are satisfied beyond reasonable doubt that the appellant gave no thought to consent at all it is your duty to acquit’. This proposition only has to be stated to be seen as absurd – it is the opposite of what Parliament intended when they inserted s 38(2)(a)(ii) in 2007.
Had this point been taken at trial, her Honour could have dealt with it in two ways. She could have split this part of her direction on intoxication to deal with the different ways that it impacts on s 38(2)(a)(i) and (ii). This would have resulted in a focused direction highly unfavourable to the appellant on the s 38(2)(a)(ii) aspect, (remembering that he had been drinking since 10.00am). Or she could have conflated s 38(2)(a)(i) and (ii) and used a discretionary modal auxiliary verb such as ‘may’ – which is exactly what she did. I see no error in such an approach and, if anything, her direction was more favourable to the appellant than the focused alternative that I have outlined. I consider the verb ‘may’ was very carefully and appropriately chosen.
Before leaving this ground, I should observe that her Honour, in advance, read the impugned part of her charge to counsel, neither of whom raised any objection. I should also add that her Honour’s broader directions as to mens rea were unexceptional.
I would reject ground 1.
Ground 2 - The learned trial judge erred in failing to direct the jury that, if they were satisfied that the appellant and complainant had engaged in consensual kissing and/or consensual sexual intercourse earlier that evening, they were entitled to take this into account in determining whether the appellant honestly believed that the complainant was consenting to the sexual intercourse which subsequently took place.
The appellant accepts that her Honour correctly directed the jury as to the relevance of the earlier kissing to element 3 (actual consent) but contends that this direction ought to have extended to element 4 (belief in consent). The argument was developed to embrace the conduct the subject of the acquittals.
In substance, this ground complains that the mandatory s 37AAA(e)(iii) warning unbalanced the charge unfairly against the accused. Her Honour correctly directed the jury in the following terms:
The law also says that you are not to regard the complainant as having freely agreed just because the complainant agreed to engage in another sexual act on that occasion with the accused or that she agreed to engage in another sexual act with the accused or another person on an earlier occasion.
Her Honour then went on to remind the jury of N’s evidence about seeing the appellant and complainant kissing. She repeated her direction in the context of that evidence and directed the jury that it was a ‘relevant matter’ for it to consider when considering element 3.
The complaint is that her Honour did not direct the jury that if it found earlier consensual kissing between the complainant and appellant occurred, this was a ‘relevant matter for them to consider’ to element 4, the appellant’s belief in consent.
For my part, I can see little merit to this ground. Juries are blessed with sufficient collective intelligence and practical wisdom that they have endured as an institution since the late middle ages. Implicit in this ground is the proposition that this jury, absent a judicial direction, may not have used this evidence of earlier kissing when considering element 4. I simply do not accept this. The evidence of kissing is highly relevant to element 4, obviously so, and in my view the judge was not required to give it any special attention in her charge. Her Honour appropriately directed the jury to counsel’s arguments concerning its relevance:
The defence submitted that the accused believed that the complainant was consenting. [Counsel] referred to the evidence regarding the kissing by the two of them at the shed, the bungalow and the back door … [Counsel] submitted that those matters in combination with his [the appellant’s] intoxication are factors to consider in determining whether the accused was aware that [the complainant] was not consenting, or might not have been consenting.
The ground was developed further in this way. The appellant was acquitted of the three charges of rape and the assault that constituted the first sexual encounter. If the jury was positively satisfied that the oral, anal and vaginal penetration were consensual during this encounter then this was also evidence it could use in the appellant’s favour when considering the appellant’s belief in consent. The appellant submits that the jury should have been directed that if it was so positively satisfied then this was relevant to the appellant’s belief in consent relating to events in the second sexual encounter.
If the jury was to be directed in the manner proposed by the appellant the direction, in my view, would only serve to add another unnecessary layer of complexity to the already labyrinthine directions required by ss 6, 37, 37AA, 37AAA and 38 of the Act. The jury would need to be directed that if the Crown had not satisfied it of any elements of any charges beyond reasonable doubt it may not use this lack of satisfaction in the accused’s favour when considering other charges on the indictment. If, however, it was positively satisfied on balance of facts favourable to the accused relating to the issue of consent, or his belief in consent, or the issue of whether he turned his mind to it at all, and those facts related to any of the charges on the indictment, then it may use those facts when considering the issue of consent or belief in consent or whether he turned his mind to it at all as part of the material that went to those issues on the charge it was considering. In my view this type of direction is entirely unnecessary and tends to confuse the burden and standard of proof.
The jury was directed in unexceptional terms about its role as the judge of the facts, what is and is not evidence, and how it should go about assessing that evidence. It is sufficient to repeat my earlier remarks. Juries are blessed with sufficient intelligence and practical wisdom to consider this sort of factual matrix by themselves. If the jury found positively that those acts the subject of charges 1-4 were truly consensual, as opposed to merely finding that one element of them was not made out to the criminal standard, then I regard it as inevitable that the jury would take these positive factual findings into account when considering all elements of the charges of which the appellant was convicted.
Again, neither counsel sought these directions nor took any exception to this aspect of her Honour’s charge.
This ground is not made out.
Ground 3 - A substantial miscarriage of justice has been occasioned by the learned trial judge’s failure to discharge the jury from entering a verdict on count 6 following their verdict of guilty on count 5.
Leave to appeal on this ground was not granted and it has been abandoned.
Proposed ground 4 - The learned trial judge erred in admitting evidence of the complainant’s injuries, or a substantial miscarriage of justice was occasioned by the admission of that evidence, given no evidence was adduced of one possible explanation of those injuries, namely the fact that the complainant had engaged in sexual intercourse with another man shortly prior to the alleged offences.
The application for leave to add this ground evolved during argument on ground 2. The formal ground and arguments to do with it were subsequently received in writing. Whilst the ground ostensibly complains of judicial error, it is a barely disguised ‘competence of counsel’ ground. No application was ever made to exclude evidence of the complainant’s injuries, and the fact that the complainant had engaged in earlier sexual intercourse with another man was not put into evidence by agreement between counsel.
It will be recalled that several witnesses testified as to injuries to the complainant that they observed after the alleged rapes:
· a red mark on her chest;
· finger tip marks on the inside of her thighs;
· a bruised and bloodied vagina; and
· slight bruising on left and right arms.
The prosecution relied on these injuries as support for the complainant’s account:
It’s a matter for you, members of the jury, but I suggest you don’t have to be a doctor. The injuries observed by those witnesses are all consistent with being forcibly held on a number of occasions and repeatedly raped. How else would those injuries get there.
On the complainant’s account, on that night she had consensual sex with another young man (PJ). This occurred shortly before the first sexual encounter with the appellant. The details of the complainant’s earlier sexual activity are unclear although there is a suggestion that it occurred on a nature strip ‘just opposite the cemetery’. I should add that PJ denied this sexual encounter.
For my part, I consider that this evidence of prior sexual activity was potentially relevant and may have been capable of placing an innocent complexion on at least some of the complainant’s injuries. I use the words ‘potentially’ and ‘may’ because there is a paucity of evidence available about what actually occurred in this earlier episode. There is no evidence as to the duration of the activity, whether the complainant was clothed, the respective positions of the participants or the enthusiasm with which they participated. It is reasonable to infer that the ‘consensual sex’ was penile/vaginal and that it occurred near the cemetery, perhaps on a nature strip. Beyond that there is nothing.
The difficulty for the appellant’s counsel in making an arguable case for this ground lies in the forensic decisions made by her predecessor. The complainant’s evidence-in-chief was video taped in a prior VARE procedure. The trial was called on at midday on Monday 21 March 2011. The appellant was arraigned and then various admissibility arguments were foreshadowed. Amongst them were the following:
·an application to cross-examine the complainant and PJ about their earlier consensual sexual episode;[10]
·that the appellant be permitted to cross-examine witnesses to the effect that the complainant was dancing ‘provocatively’;
·that the appellant be permitted to cross-examine witnesses about the complainant exposing her bare buttocks to various young men; and
·that the appellant be permitted to cross-examine witnesses about the complainant exposing her bare breasts to PJ in the presence of others.
[10]This application was made pursuant to s 342 of the Criminal Procedure Act 2009 which places an absolute prohibition on questions and evidence concerning a complainant’s prior sexual activities, subject to leave of the Court.
Trial counsel for the appellant put his application to cross-examine the complainant about the earlier sex with PJ in this way:
In her statement … she says that [she] was laying down with [PJ] and when she woke up she was having sex. She was not alarmed at that. She was alarmed when she found out it wasn’t [PJ] …
I have no intention or wish to go further than the fact that she was having sex with [PJ] and he took her into the room and she believed when she woke up from that time when they were in the room, she believed it was him having sex with her …
Trial counsel had earlier explained that another reason why he wished to explore these issues was because there was an issue as to who removed the complainant’s g-string. It was the defence position that it was not his client:
I can’t see how to be fair that one can take [PJ] out of the picture because her underwear – someone had to take her underwear off at some stage and that needs to be explored.
Later he submitted:
It’s a 21st birthday party, everybody is considerably intoxicated and in my submission it’s of substantial relevance that [PJ], who was there and indeed was a reasonable player in the evening, cannot properly be removed or sanitised from the activities on that evening.
The prosecutor commenced his response just before the lunch break. In short, he argued that the fact that the complainant had consensual sex with someone else earlier that night was ‘completely irrelevant’. Her Honour expressed no concluded view but remarked about the prosecution submission to refuse leave on the basis of relevance:
… I just think it would be artificial in the circumstances of this case.
The prosecutor submitted that the other aspects of the defence application (see paragraph 33) ought not be the subject of a grant of leave because they had ‘the effect [of] painting the complainant … as a young hussy [who] was asking for it’.
Immediately after lunch the prosecutor informed her Honour that he and defence counsel had come to an agreement on what ought and ought not be led in evidence:
PROSECUTOR: Over lunch my learned friend and I have discussed this issue and if it saves times and makes it any easier we’re happy to come to an agreement about the evidence that wouldn’t require leave being given to either party, and we discussed it at some length and I think we understand each other on where [counsel] would be allowed to question and where he wouldn’t.
…
What’s been agreed is that the references to consensual sex with the boy [PJ] will be deleted, and they’re at questions 24 and 92 as I recall.
…
As we discussed the passage at the bottom of p 8 will remain, and it’s understood and there’ll be no objection from me, [counsel] should be entitled to cross-examine both the complainant and [PJ] about how her underpants came to be off at that stage.
…
In other words, all the cross-examination of the complainant and [PJ] will be referring to events that happened in that room, there’ll be no reference to the consensual sex which happened away from the house at the earlier time.
…
That way my learned friend is able to explore that matter without the actual incident of sex - - -
…
- - - which is denied by [PJ], going in.
…
I would see in those circumstances that he [PJ] wouldn’t need any legal advice or an indemnity.[11]
HER HONOUR: He wouldn’t need any legal advice or indemnity? I think he might. Why not be sure rather than having a situation where I’m required to adjourn the case?
PROSECUTOR: My learned friend won’t be suggesting that any sexual activity occurred between [PJ] - - -
…
I accept that, but he certainly won’t be pressing about the earlier incident away from the house. When it comes to the other line of questioning that my learned friend proposed to pursue – and your Honour was addressing this when he started after lunch. I was not absolutely confident that those questions were sexual history evidence. I consulted a senior prosecutor who agreed with my position that they were, but I’m not quite so confident about that. I’m content for my learned friend to pursue that line of questioning because I accept that [counsel], and I know him well, wouldn’t misuse that evidence and go to the jury in an impermissible fashion with it. In other words, it goes to the complainant’s credit on various aspects; if her dress went up, who was responsible for that.
…
Assuming that that’s not sexual history evidence, and your Honour has a tentative view that it’s not, no leave will be required to pursue that line of questioning.
[11]Counsel were concerned as to whether PJ may tend to incriminate himself if he admitted having sex with a girl under 16 years of age.
Thus the appellant’s trial counsel and the prosecutor came to an agreement as to what would and would not be led. They announced this course to the judge who effectively approved the agreement. The agreement specifically excluded any evidence being led as to the prior consensual act of intercourse, although it allowed for the appellant’s counsel to explore certain other areas that were formerly in dispute (see paragraph 33).
It is against this background that the appellant now argues that her Honour erred in admitting evidence of the complainant’s injuries, or a substantial miscarriage of justice was occasioned by the admission into evidence of those injuries, given no evidence was adduced of one possible explanation of those injuries, namely the prior consensual act of intercourse.
It is probably sufficient to dispose of this proposed ground to observe that no application whatsoever was made to exclude evidence of the complainant’s injuries and the evidence of them was led without objection. The appellant was represented at the trial by experienced counsel who was far more familiar with the material, his instructions and the general dynamics of this particular trial than any appellate court can ever hope to be.
The real issue under this ground, as I see it, is not whether the evidence of injury was properly part of the evidence before the jury – in a trial where four charges of rape involving violence and two counts of common assault were alleged it was patently relevant and otherwise admissible – but whether the absence of the potentially explanatory evidence of the earlier act of intercourse is sufficient to have occasioned a miscarriage of justice.
In the criminal trial context counsel are called upon to make forensic decisions from the moment they open the brief. Some decisions will be easy; others will cause much angst and self-examination. Defence counsel in this case made a big forensic decision – not to pursue the earlier consensual act of intercourse when it may possibly have explained some of the vaginal injuries.
Gaudron J has observed:
An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.[12]
Here counsel made, in my view, an informed decision not to pursue the disputed assertion of the complainant’s earlier consensual act of intercourse. He initially sought leave to put it to the complainant (so it cannot be said he had overlooked it), but after discussion with the prosecution an agreement was brokered as to what should and should not be led. Ultimately the question asked by this proposed ground is whether a miscarriage of justice has resulted from the forensic decision made by counsel not to pursue the aspect of earlier consensual intercourse?[13] I am unable to conclude that this outcome has eventuated. I do not know what was in counsel’s brief. I do not know whether counsel was concerned that pursuit of this course may engender sympathy for the complainant and/or animosity towards his client. I know nothing of the detail of this earlier sexual activity. I have no material from counsel on affidavit. I do not have a proposed ground which specifically identified counsel’s forensic decision as its object, although it lies at the heart of the argument. In short I am unable to say that counsel’s decision was not informed and deliberate. Without this information, I cannot even venture an opinion as to the wisdom of the forensic decision, let alone whether it resulted in a miscarriage of justice.
[12]T K W J v The Queen (2002) 212 CLR 124, 134 [32].
[13]Ibid 134 [31] (Gaudron J).
For my part I consider there are also strong policy reasons why, in the circumstances that prevailed in this trial, this proposed ground must fail. In most criminal trials involving experienced counsel agreements will be reached as to what evidence will be led and what will not. These agreements reflect a mix of the strict laws of evidence, pragmatic considerations, goodwill and a measure of trust between the opposing counsel. The benefits of this type of agreement are manifold. Barely relevant side issues are jettisoned and issues that have the potential to derail the trial are either quarantined or massaged into a palatable evidentiary form. The trial will be more efficiently focused and the administration of justice is enhanced. Not every evidentiary issue can be agreed of course, and those that can will still require curial approval, but the process is to be encouraged not discouraged. If opposing trial counsel thought that evidentiary agreements would readily be undone by appellate courts, soon enough the practice of entering such agreements would cease, or be powerfully inhibited. Either way the administration of justice would suffer in a very material way. In my view an appellate court would rarely, and then only in the most exceptional circumstances, interfere with such an agreement.
I do not consider this proposed ground to be arguable and I would not grant leave to appeal. It follows that I would reject the appeal against conviction.
Appeal against sentence
First indictment
I have set out the facts that led to the appellant’s conviction in this first part of this judgment. It is readily apparent that the 15 year old complainant was highly distressed when M entered the bedroom. The complainant was lying naked on the floor with the appellant on top of her. The complainant’s victim impact statement sets out the enduring and profound impact of the appellant’s conduct.
Second indictment
The appellant, then aged 23, lived in a bungalow. He was a friend of GD. On 29 May 2010 a group of young people gathered at the bungalow. GD’s 14 year old sister and some of her male and female friends of similar age were amongst the group. The complainant, at 12 years 8 months, was the youngest. The appellant and GD were substantially older than the rest of the group. The appellant and GD drank alcohol and smoked cannabis. The complainant drank alcohol. The appellant had penile/vaginal intercourse with the complainant first in the bungalow (charge 1) and about one hour later in a nearby shed (charge 2). The first activity occurred in the presence of two boys aged 14 and 15. Later in the evening the complainant also had sex with GD. The next day the complainant, who appeared distressed, spoke to a school counsellor and the police were informed. In a police interview the appellant said he thought the complainant looked at least 16 or 17 and expressed surprise when told her true age.
The appellant was given leave to pursue two grounds of appeal.
Ground 1 – The learned sentencing judge erred in ordering that six months of the sentence imposed on count 6 be served cumulatively upon the sentence imposed on count 5, rather than ordering that they be served concurrently.
Leave to appeal on this ground was not granted and it has been abandoned.
Ground 2 - The learned sentencing judge erred in treating the violence that was used during the rapes as an aggravating feature thereof, in circumstances where the appellant had been convicted of assault in relation to that violence.
I am not satisfied that this ground has been made out. It is clear from her Honour’s charge that the violence the subject of charge 7 was as follows.
He grabbed my hair and pulled my hair back and then he flipped me over and he was sitting on top of me and he started hitting me and he kept hitting me and I remember, like, I was balling my eyes out and I remember I tried to say ‘help’.
An examination of the complainant’s evidence in chief demonstrates that this activity was said by the complainant to have occurred after the second rape (charge 6) had finished and before the complainant left the room. The conduct therefore is discrete from the violence that attended the rapes and merited separate treatment in sentencing. In my view it cannot be said that the appellant was doubly punished for the one act of violence. Violence attended the rapes and was an aggravating feature of them. A separate act of violence was the subject of charge 7. The question of manifest excess in the sentence imposed on charge 7 and the extent of its cumulation is not the subject of this ground.
I would reject this ground of appeal.
Ground 3 - The individual sentences, the extent of cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive
I have had considerably more difficulty with this ground. I accept her Honour’s characterisation of the offending as ‘very serious and disturbing’[14] (in relation to the first indictment) and ‘very serious’ (in relation to the second indictment).
[14]R v [N J] (Unreported, County Court of Victoria, Judge Lewitan, 5 May 2011), [12].
The appellant stood to be sentenced as a serious sexual offender[15] on charges 1 and 2 of the second indictment. This was as a result of his convictions on charges 5 and 6 of the first indictment. I regard the circumstances of both sets of offending as meriting stern punishment. The complainants were very young, 15 and 12 respectively, both were rendered vulnerable by alcohol and both have suffered profound and enduring emotional trauma.
[15]Sentencing Act 1991 (Vic) s 6F.
The appellant admitted 15 prior convictions over 4 court appearances (including one Children’s Court appearance) between 2004 and 2009. Mostly these were for traffic matters, one serious. This offending involved a police chase and resulted in a prison sentence of 14 months with minimum term of 5 months.
Her Honour accepted that the following matters operated in the appellant’s favour:
·He pleaded guilty to the second indictment with the accompanying utilitarian benefit. Her Honour concluded that this plea together with remarks he had made to his psychologist were indicative of remorse.
·He was still young, 23 at the time of offending, 24 at the time of sentence. Her Honour said this:
There is a responsibility on judges in dealing with youthful offenders … to impose sentences which take into account youth and the need to give more emphasis to the need for rehabilitation than with older adult offenders. In fixing an appropriate sentence, I must seek to maximise the chances of your rehabilitation.
·He was the oldest of three siblings from a decent family background. His family and extended family will continue to support him.
·He suffered from Attention Deficit Hyperactivity Disorder diagnosed when he was 10. He found schooling difficult and was semi-literate. He left school during Year 9.
·He had a sound work history and demonstrated himself to be capable of holding down employment. His arrest was publicised and he was threatened at work by other employees. He felt compelled to cease work.
·He suffered from a borderline intellectual deficit, functioning at the 4th percentile with 96 per cent of the population scoring more highly in a full scale Weschler abbreviated intelligence test. Her Honour found that this intellectual disability reduced the appellant’s moral culpability ‘in accordance with the principles stated by the Court of Appeal in Verdins’,[16] and accordingly the weight to be given to general and specific deterrence was to be sensibly moderated. Her Honour also found that this intellectual disability would make any term of imprisonment more burdensome.
[16]Verdins (2007) 16 VR 269.
I am unable to conclude that any individual sentence is manifestly excessive, although I consider that all individual sentences imposed are right at the top end of the available range. A sentence is manifestly excessive if the excess is ‘obvious, plain, apparent, easily perceived or understood and unmistakeable’.[17]
[17]Hanks v The Queen [2011] VSCA 32.
As I have indicated her Honour expressed an intention:
·to moderate the principles of general and specific deterrence because of the appellant’s intellectual deficit;
·to moderate the sentence as imprisonment will be more burdensome because of the appellant’s intellectual deficit;
·to maximise the chances of the appellant’s rehabilitation; and
·to reflect the appellant’s plea of guilty and remorse in relation to the second indictment.
For my part I am unable to detect any or any adequate reflection of those moderating factors in either the total effective head sentence (10 years’ imprisonment) or the minimum term before parole eligibility (7 years). I consider the total effective sentence after cumulation and the minimum term imposed to be manifestly excessive. I would allow the appeal against sentence. I would propose that the appellant be resentenced as follows:
First indictment
•Charge 5 (rape): 6 years’ imprisonment.
•Charge 6 (rape): 6 years’ imprisonment.
•Charge 7 (Common Assault): 6 months’ imprisonment.
Second indictment
•Charge 1 (sexual penetration of child under 16): 2 years 6 months’ imprisonment.
•Charge 2 (sexual penetration of child under 16): 2 years 6 months’ imprisonment.
I would make the sentence imposed on the first indictment, charge 5 (6 years) the base sentence.
I would propose the following orders for cumulation:
•Charge 6, first indictment: 6 months.
•Charge 7, first indictment: 1 month.
•Charge 1, second indictment: 9 months.
•Charge 2, second indictment: 2 months.
I would therefore impose a total effective sentence of 7 years 6 months. I would propose a minimum term of 5 years before parole eligibility. I would declare that but for the appellant’s plea of guilty to the charges on the second indictment I would have imposed a total effective sentence on both indictments of 8 years 6 months with a minimum term of 6 years’ imprisonment.
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