PT v The Queen
[2011] VSCA 43
•23 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0536
| P T | Applicant |
| v | |
| THE QUEEN | |
| Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 January 2011 |
| DATE OF JUDGMENT | 23 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 43 |
| JUDGMENT APPEALED FROM | R v P T (Unreported, County Court of Victoria, Judge Gaynor, 5 December 2008 (date of conviction) 12 February 2009 (date of sentence)) |
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 10 (2 counts), gross indecency, indecent act with child under 16 (2 counts) – Delay in complaint – Whether applicant suffered ‘significant forensic disadvantage’ – Applicant absent because of illness during jury deliberation – Whether additional warning required – Application refused – Crimes Act 1958 (Vic) s 61(1A), Evidence Act 2008 (Vic) s 165B.
CRIMINAL LAW – Appeal – Sentence – Whether sentence of eight years’ imprisonment with non-parole period of six years manifestly excessive – Whether changes in applicant’s health constituted new evidence – Application refused.
WORDS AND PHRASES – ‘Significant forensic disadvantage’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Jeremy Harper & Associates |
| For the Crown | Mr D Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
BUCHANAN JA
WEINBERG JA:
After a trial in the County Court at Ballarat, the applicant was convicted on two counts of sexual penetration of a child under the age of 10 years (counts 1 and 2), one count of gross indecency with a child under the age of 16 years (count 4) and two counts of committing an indecent act with a child under 16 years (counts 8 and 9). He was acquitted on the remaining five counts on the presentment.
All of the alleged offending was said to have taken place at the family home. (For reasons which will become apparent, we will refer to this as ‘house one’). The victim in each case was the applicant’s stepson, PN. The offences described in counts 1, 2 and 4 were all said to have taken place on the same night in May 1990. PN was aged nine at the time. He claimed that he had been sexually abused by the applicant on a regular basis prior to the night in question. His evidence was that, on that night, the applicant came into his bedroom, as he had done many times before, and shook him by the shoulder. He said that, as was their custom, he accompanied the applicant to the lounge room. According to PN that was where the applicant normally slept, on a single bed.
PN said that the applicant told him to get undressed. He said that he removed all his clothing and got into the applicant’s bed. The applicant then undressed and joined PN in the bed. According to PN, they fondled each other’s genitals. The applicant then ordered PN to suck his penis, which PN did. This conduct constituted the first act of sexual penetration, count 1.
PN said that having sucked the applicant’s penis for some time, the applicant then responded in kind. That conduct gave rise to the second act of sexual penetration, count 2.
PN said that after this sexual activity had ceased, the applicant produced some hair conditioner. He poured the conditioner onto PN’s hand and ordered PN to masturbate him. PN complied. That conduct gave rise to the charge of gross indecency, count 4.
Counts 5–10 concerned a series of offences that were said to have been committed in or about December 1992. The jury acquitted the applicant on counts 5 and 6, but convicted him on counts 8 and 9. All four of these counts related to incidents said to have occurred on the same evening. PN, who was aged 11 at the time, said that the applicant had entered his bedroom at night while he was asleep and had woken him. He said that the applicant was ‘a bit drunk’. According to PN, the applicant made it clear to him, as he had regularly done in the past, that PN was to follow him into the lounge room.
PN claimed that on this occasion he refused to engage in any sexual activity. The applicant became angry and responded by slapping him across the face and telling him, ‘You will do as you are told!’. PN said that he was frightened and gave in to the applicant’s demand. He said that he undressed and got into the applicant’s bed. The applicant then ordered PN to suck his penis. That act gave rise to count 5, a charge of incest.
PN said that he then stood by the bed as the applicant sucked his penis. That act gave rise to count 6, a second charge of incest.
PN said that, at that stage, he went to the toilet. He claimed that the applicant followed him and held his penis as PN urinated. That act gave rise to the charge of indecent act with a child under 16, count 8.
According to PN, the applicant then took him back into the lounge room and the two of them got back into the applicant’s bed. PN said that, as he lay naked, the applicant then tickled him all over his body with a feather duster. That conduct gave rise to a second charge of indecent act with a child under 16, count 9.
PN acknowledged, in his evidence, that he had great difficulty pinpointing exactly when the offences charged had occurred. He said that this was because he was so young at the time. He insisted, however, that the offences in question were part of a regular pattern of abuse which took place over a period of years, generally at least once or twice a week.
The issue of exactly when the second set of offences were committed was of particular significance in this case. That was because the Crimes Act 1958 (Vic) was amended in August 1991, so that sexual penetration of a child by a step-parent was thereafter, for the first time, treated not merely as the offence of sexual penetration but as the offence of incest. For that reason, the jury had been told that they could not convict the applicant on counts 5 and 6 unless they were satisfied that any sexual penetration that occurred took place after August 1991.
The trial judge said in her sentencing remarks that she understood the jury’s verdicts of acquittal on counts 5 and 6 to mean that they were not satisfied beyond reasonable doubt that any acts of sexual penetration took place after August 1991. However, the verdicts of guilty on counts 8 and 9 meant that they were satisfied that PN’s evidence as to what took place on the night in question had been accepted. In her Honour’s view, there was no inconsistency between the acquittals on counts 5 and 6 and the convictions on counts 8 and 9.
The applicant was acquitted by direction on counts 3, 7 and 10. That was because PN had no recollection whatever of any of those offences by the time he came to give evidence at the trial.
The applicant was sentenced as follows:
Count 1 - five years’ imprisonment;
Count 2 – five years’ imprisonment;
Count 4 – one year’s imprisonment;
Count 8 – one year’s imprisonment; and
Count 9 – one year’s imprisonment.
It was directed that two years of the sentence imposed on count 2, six months of the sentence imposed on count 4, three months of the sentence imposed on count 8 and three months of the sentence imposed on count 9 be served cumulatively upon each other and upon the sentence imposed on count 1. The total effective sentence was eight years’ imprisonment. A non-parole period of six years was fixed.
The appeal against conviction
The notice of appeal upon which the applicant relies contains four grounds. They are as follows:
1.The learned trial judge erred in failing to direct the jury that the applicant had suffered a significant forensic disadvantage by virtue of the delay in complaint.
2.The learned trial judge erred in proceeding with the trial on Friday 5 December 2008 in the absence of the applicant.
3.The learned trial judge erred in failing to direct the jury that they should draw no adverse inference from the non attendance of the applicant on Friday 5 December 2008.
4.The verdict of the jury is unsafe and unsatisfactory.
Ground 1
Ground 1 invokes s 61(1A) of the Crimes Act 1958 (Vic). That section relevantly provides as follows:
61Jury warnings
(1A)If the judge, on the application of the accused in a proceeding to which subsection (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must, in any terms that the judge considers appropriate having regard to the circumstances of the case—
(a)inform the jury of the nature of the forensic disadvantage suffered by the accused; and
(b)instruct the jury to take that disadvantage into consideration.
Counsel for the applicant made application to the trial judge, pursuant to s 61(1A), that she direct the jury that, by reason of the delay in the complaint having been made, the applicant had suffered a significant forensic disadvantage, and that the jury should take that disadvantage into consideration. When pressed by her Honour as to the basis for that request, counsel identified five matters which he submitted would satisfy the threshold test for such a direction. These were:
·The applicant’s claim, in his record of interview, that at the time of the alleged offending the family no longer lived in house one. This was said to be a matter that could no longer be demonstrated having regard to the delay that had occurred since the commission of the alleged offences.
·The applicant’s claim that PN’s account of what took place was inherently improbable having regard to the layout and design of house one.
·PN’s account of having been physically assaulted by the applicant on a regular basis could no longer be disproved because there was not now available the possibility of calling the family doctor to give evidence as to whether he ever saw PN with bruises or other marks on his body.
·PN’s allegation that he was sexually assaulted on a regular basis, at least once or twice a week, could no longer be tested by calling any of PN’s teachers to give evidence about their impressions of him at the time, and particularly whether he appeared tired as a result of inadequate sleep; and
·PN’s allegations as to what took place in May 1990 and December 1992 could no longer be disproved by the production of an alibi. In that regard, it had to be noted that the complainant had difficulty in recalling specific dates and surrounding details relating to the alleged offending.
The trial judge, when first asked by counsel to give a ‘significant forensic disadvantage’ direction, said as follows:
Yes, very well. This seems to me to be very borderline indeed. Given that it is borderline it probably should be that I do direct in a way that assists the accused, if I can put it that way. I will give a warning about - it won't be a warning, I'll simply talk about the delay, which I think should be given in any event because I know that something is going to be made of it, so I'll give the warning in terms of the delay and in terms of the forensic disadvantage, I will simply point out the issues - I'm not prepared to point out issues about teachers and doctors, I think that's far fetched and relates to a peripheral matter. I will say that the dates of moving house and the layout of the house may have been assistance [sic], it's a matter for the jury pointing out that they do have a map which has been tendered for their consideration. That's about as far as I think it needs to go.
However, by the following day, her Honour had given further consideration to the matter and had concluded that she would not give the direction sought. She said as follows:
It’s all by itself. And I’ve just gone through the materials and the bases on which you put your submission in terms of the forensic disadvantage and I do not regard it as significant. I mean, the question of alibi could be argued in any reasonably old sex case, I don’t regard the house layout or the situation of whether or not they lived at the house or not, and I still think that's something that could've been checked up in any event. I just simply don’t regard them as significant and the direction in the charge book is that I’m to describe it to the jury as a significant forensic disadvantage and I just don't, in my view, it’s simply not. I do however believe that it is appropriate that I charge on honest but erroneous memory, I think that in the circumstances it has to be done. All right?
When her Honour subsequently came to charge the jury, she referred to the matter of delay, but said nothing whatsoever about any forensic disadvantage that the applicant might have sustained. Her Honour said:
As you will be aware, the offences in this trial are alleged to have occurred in 1990 and 1992 but you heard that [PN] did not go to police until 2005 which was up to 15 years after the first offences were alleged to have taken place. I need to give you some directions about the way in which you can use that evidence of delay. In giving you these directions, I am not suggesting that the law regards complainants in sexual cases as an unreliable class of witnesses, it does not. You are only allowed to use this evidence for a very limited purpose as a matter to be taken into account when assessing [PN’s] credibility.
You may take [PN’s] delay in complaining into account when assessing his credibility. If you find that that delay is inconsistent with the account of the events he has given in court, it is for you to determine whether the delay in complaint points to inconsistency by [PN]. If you would have expected a complainant in [PN’s] alleged circumstances to complain about such an offence more promptly or earlier, you may find that his delay in complaining was inconsistent with the truth of his account. But in determining whether the evidence shows inconsistency, it is important that you understand that there may be good reason why a victim of sexual assault may delay or hesitate about complaining about it. These may lead you to find there is no inconsistency.
For example, the fact that he is a child. The fact that he was, he said “scared” of the accused man. The fact that his mother was still in a relationship with [the accused] up until December 2004. Those are the sorts of matters that you look at in determining whether or not it was reasonable or unreasonable for [PN] not to make a complaint to police until he did. If you find that you would have expected someone in his position to complain early, you can take that into account in determining whether that is inconsistent with the truth of what [PN] has to say, however in determining that as I said, you should take into account whether or not there were good reasons why he made those complaints until that time.
A second direction I need to give you about the delay relates to the complainant, that is [PN’s] memory. Again, I am not suggesting, and it would be wrong to suggest that people who makes complaints of sexual offence are less reliable that other witnesses. These directions are solely necessary because of the delay in complaining about the offence. And one consequence of the delay is its possible effect on the reliability of [PN’s] memory. And [counsel] for the accused man has spoken to you at some length about this. You will easily understand that the passage of time may affect any witness' memory. While in some cases people simply forget things, in other cases their memory may become distorted. That is, they may claim to remember things that did not really happen.
Experience has shown that human recollection is frequently erroneous and liable to distortion in this way and that the likelihood of error increases with delay. The risk is enhanced if the complainant is young at the time of the alleged offending. Recollection of events occurring in childhood is often distorted or mistaken. It is therefore important that you carefully consider not only whether [PN’s] evidence is honest in the sense that he believes it to be true, but also whether it is in fact true. Whilst you use your common sense and experience in assessing the effect of the delay upon [PN’s] memory, you must also consider the possibility that he honestly believes what he is saying but he is mistaken due to the distortion of his memory.
It is a matter that you take into account and it is a matter entirely for you. You do not have to find that his memory is distorted because these events occurred long ago and he was young at the time but you need to bear that in mind and look at that question in determining his evidence and determining whether you are satisfied beyond reasonable doubt of the accused man.
‘Significant forensic disadvantage’
The expression ‘significant forensic disadvantage’, which appears in s 61(1A), is now replicated in s 165B of the Evidence Act 2008 (Vic). According to the Explanatory Memorandum to the Evidence Bill 2008 (Vic), s 165B was introduced to replace the existing common law regarding what had come to be known as the giving of a ‘Longman’[1] warning. The section recognises that delay in the reporting and/or charging of an offence can create significant forensic difficulties for an accused, and that it may be necessary that these difficulties be drawn to the attention of the jury. By contrast with Longman, a court is prohibited from suggesting in any way that it would be dangerous or unsafe to convict the accused solely because of the delay or forensic disadvantage suffered.
[1]Longman v The Queen (1989) 168 CLR 79 (‘Longman’). See also Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343.
The phrase ‘significant forensic disadvantage’ requires examination of the consequences of the delay for the accused in relation to the particular case. Such disadvantage arises not because of delay itself, but because of the consequences of delay. For example, it may be that potential witnesses have died, or are not now able to be located. Alternatively, potential evidence may have been lost or is otherwise unavailable.
What is clear, however, is that the defendant who seeks the warning carries the onus of satisfying the Court that he or she has in fact suffered a significant forensic disadvantage, and that this arises because of the delay that has occurred. A hypothetical disadvantage will not be sufficient. A leading text on the Evidence Acts[2] cites the joint view of the Australian, New South Wales and Victorian Law Reform Commissions,[3] which was reflected in the Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth),[4] to the effect that:
A warning should not be given unless the delay has placed the defendant at a significant forensic disadvantage and the particular risks of prejudice must be identifiable.
The learned authors further note the view of the Law Reform Commissions that ‘… the general or nebulous disadvantage’ that a defendant might suffer could be raised by counsel in closing address and need not be underscored by the trial judge.[5]
[2]Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (2nd ed, 2009), 773.
[3]Uniform Evidence Law, ALRC Report 102, NSWLRC Report 112, VLRC Final Report (Joint Report, 2005) [18.122].
[4]Explanatory Memorandum, Evidence Amendment Bill 2008 (Cth) [222].
[5]Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (2nd ed, 2009) 775.
Referring to the Macquarie Dictionary, the learned authors point out that, for the forensic disadvantage to be ‘significant’, it must be ‘important’ or ‘of consequence’. They provide the following helpful summary of relevant authorities:
In general terms, delay may lead to forensic disadvantage ‘in respect of adequately testing allegations or adequately marshalling a defence, as compared with the position if the complaint of the offence were of “reasonable contemporaneity”. At common law, instances of forensic disadvantage suffered as a consequence of delay have included the inability of a defendant to establish an alibi or to call more convincing evidence of an alibi, an inability to carry out medical examinations in a timely way, an inability to explore the detail of the circumstances of the alleged offending and an inability to identify the alleged events with specificity.[6]
[6]Ibid 775‑776. Footnotes omitted.
As noted in Odgers, Uniform Evidence Law,[7] the provision does not preclude the Court from deciding, in the circumstances of a particular case, that the delay is of such magnitude that significant forensic disadvantage is a matter of necessary inference.[8] But the clear focus of the provision is on identification of the particular consequences of the delay which give rise to significant disadvantage.[9]
[7](9th ed) 2010 [1.4.3200].
[8]Munn v The Queen [2006] NSWCCA 61, [43].
[9]See, for example, R v D F [2010] ACTSC 31, [257]–[266].
The present case
In the present case, the delay between the alleged offending and the initial complaint was substantial. PN said nothing about the matter to anyone until 2002, when he informed his mother and her fiancé. The police were informed in 2005.
The applicant told the police in the course of his record of interview that the family had moved from house one in about 1989. He said that he recalled the move having occurred at that time because the youngest child had been aged only about two at the time they moved. He added that they had left house one because there was a ‘re-zoning’ on the house.
When asked by the police about PN’s allegation that the first set of offences occurred in 1990, when PN was aged nine, and in Grade 3 at school, the applicant insisted that, at that stage, they were living elsewhere, in house two. He reiterated that, by 1990, the family had moved from house one.
In relation to the offences said to have been committed in December 1992, the applicant told the police that, by that time, the family had moved again, this time to house three. He claimed that they had moved midway through 1991, because the owners of house two had sold it. He claimed that he and the rest of the family then occupied a farmhouse which was at the time owned by an old man who was ‘probably dead now’. He said that the owner of house two had ‘gone up Woop Woop’, by which he meant could no longer be located.
Counsel for the applicant emphasised in his submissions to this Court the importance of his client’s utter rejection of PN’s allegations, both as to the time frame concerned and the description of what had occurred. For example, the applicant had insisted that PN’s account could not be true because PN always slept on the top bunk. His brother, a ‘bed-wetter’ who was scared of heights, always occupied the bottom bunk. Yet PN maintained that he had been asleep on the bottom bunk when he was awakened by the applicant.
The applicant also insisted that PN’s account was demonstrably false because the layout of house one meant that any abuse of the kind described would have been overheard by PN’s mother. Moreover, he claimed that there was never a bed in the lounge room, only a divan which was never at any time made up for sleeping.
PN, in cross-examination, conceded that he had a bad memory and that he had made a number of inconsistent statements concerning the incidents in question. Counsel submitted that this made it especially important to be able to cross-examine him about matters that, had he complained earlier, would have been able to be tested and ascertained. In addition, witnesses such as the respective owners of house two and house three might have been available to support the applicant’s version of events.
As regards the layout of house one, it was noted that there were no photographs of the house available for the jury’s consideration. It seems that the present owners of the house were not prepared to allow the premises to be visited or inspected.
It was further submitted that, had there not been such a lengthy delay, the applicant’s statement to the police that the family had never owned a feather duster could, in some way, have been verified. So too, it was submitted, could his statement that the family had never had a bottle of hair conditioner, as distinct from a two-in-one product, and his claim that PN always went to bed at the same time as the other children, especially if it was a school night. The memories of those who regularly visited the house regarding these sorts of domestic details could have been relied upon to challenge PN’s version of events.
Finally, it was submitted that because of the lengthy delay, the applicant had lost the opportunity to lead alibi evidence as to his movements in May 1990 and in the period leading up to Christmas 1992.
Conclusion
In our view, none of these complaints has any substance. The threshold question for a trial judge in considering whether a forensic disadvantage warning should be given is whether the judge is satisfied that there has been ‘significant’ forensic disadvantage. That requires, as has been seen, a measure of precision in identifying the nature of the disadvantage alleged. It also requires some demonstration of the obstacles confronting the defence as a result of the delay. That,
in turn, may call for some evidence to be led of the attempts made to overcome the difficulties identified.
In the present case, none of these requirements was met. Take, for example, the possibility of an alibi. The offences in question were said to have occurred on two nights, one in May 1990 and one in the period leading up to Christmas 1992. Given the breadth of the periods specified, it could hardly have been expected that, even if a more contemporaneous complaint had been made, an alibi could have assisted. Unless the applicant was away for a good part, if not the whole, of May 1990 or December 1992, any alibi that covered only one or more specific days in that period would have been of little, if any, assistance.
As regards the doctor and teacher examples, these fall into the realm of speculation. There was no evidence whatsoever to suggest that PN had ever been taken to see a doctor at any relevant time. Accordingly, the fact that he might not have been seen to have bruises on his body would have led nowhere. The same could be said about the example of one of PN’s teachers being called to say that he never appeared tired at school. That could hardly impugn his credibility when he claimed that he was abused on a regular basis.
The potential challenge to PN’s evidence arising out of the layout of house one similarly leads nowhere. The only evidence that the jury had regarding this matter was a sketch plan of the house prepared by the applicant himself. That plan was tendered. The layout identified was therefore essentially uncontradicted. In particular, as the Crown pointed out on the appeal, the layout shown on the plan was not disputed during cross-examination of the complainant’s mother, although she was cross-examined on various issues concerning the set-up of the house. Hence, the case could not have been any better from the applicant’s point of view had PN complained at an earlier time.
We should interpolate that it seems odd that the defence made no application during the course of the trial for there to be a view of house one. The fact that the current householder objected to anyone coming into his or her home, assuming that to be the case, could hardly have prevented such a view from being held.
That takes us to the matter of location. All that was put before this Court was that the applicant had lost the opportunity to prove that the family no longer lived in house one at the time these offences were said to have been committed. Why that should be so is something of a mystery. There was no evidence led of any attempt on the part of the defence to obtain records of the family’s movement to house two in 1989 or house three in 1991, in accordance with the applicant’s account to the police.
One would assume that, if the family had moved to these locations at the dates asserted by the applicant, such records would have been available. At the very least, there ought to have been evidence of some attempt to locate them. It would have been possible, for example, to check the electoral rolls for the period. If that produced nothing, it would have been possible to search for rate notices, as well as telephone, gas and electricity accounts. Had that failed, other enquiries could have been made of bodies like VicRoads, which have records of driver licence addresses. The fact that the defence led no evidence of any such enquiries having been made detracts from the submission that the applicant suffered a significant forensic disadvantage by reason of PN’s delay in having complained of being sexually abused.
In our view, the trial judge was entitled to conclude that the defence had failed to establish that delay had brought about significant forensic disadvantage. For these reasons, we would reject ground 1.
Grounds 2 and 3
It is convenient to deal with these grounds together. They arose in this way. On the morning of Friday, 5 December 2008, the day after the jury began deliberating, the applicant took an overdose of medication (Valium and Tramadol). As a result he was taken to hospital.
The trial judge determined that the trial should continue in the absence of the applicant. She observed that she had earlier that morning seen the applicant speaking on a mobile phone and having a cigarette on the steps of the Court. His counsel informed the judge that the applicant had told him, as he arrived at the Court, that he had taken an overdose of tablets. Counsel very sensibly had obtained details of precisely what medication the applicant had taken, and arranged for immediate assistance.
When her Honour indicated that the trial could easily continue, given the stage that it had reached, counsel acknowledged that there was no problem with that course. The jury had asked for the tape of PN’s evidence to be played again, and that meant that they would have to be in Court, and would see that the applicant was not present.
It was against that background that her Honour observed that the jury would have to be given some explanation as to why the applicant was not in Court. The prosecutor suggested that they be told simply that the applicant was unwell. There was then a discussion about revocation of bail. Counsel for the applicant said nothing to indicate that he had any difficulty with the jury being told that his client was ill.
The jury came back into the Courtroom and were told that the applicant, unfortunately, had been taken ill. The jury were then sent back to the jury room while arrangements were made for playing the tape that they had requested.
It was at that point that counsel for the applicant proffered the suggestion that perhaps the jury should be given some words of caution. He submitted that the jury should be told that they should not draw any inference adverse to the applicant by reason of his absence. The trial judge indicated that she would not give any such direction. It was her Honour’s refusal to do so that has prompted ground 3.
In our view, there is no merit in either of these grounds. As regards ground 2, it should be noted that the judge had concluded her charge to the jury at about 12:40pm on Thursday, 4 December. Later that afternoon, they asked to have PN’s evidence replayed to them. That would have taken more than an hour. Because it was late in the day, her Honour decided that the tape would be played the following morning.
In our view, the trial judge was entitled to conclude that the trial should continue in the absence of the applicant. By that stage, there was no need for him to be present in order to give instructions to his counsel. No further evidence was being led, and the judge’s charge had been completed. The applicant’s counsel had no objection to the trial continuing. There was no miscarriage of justice in the circumstances of this case.
As regards ground 3, her Honour was not only entitled but almost bound not to give the direction sought. Any instruction of that kind would not only have highlighted the matter, but might have caused the jury to speculate that the applicant’s illness resulted from an attempt at self-harm, brought about because of consciousness of guilt.
Grounds 2 and 3 are therefore rejected.
Ground 4
This ground was not pursued save on the basis that one or more of grounds 1–3 might succeed. Those grounds having failed, ground 4 is rejected. It follows that the application for leave to appeal against conviction is refused.
The appeal against sentence
It was submitted on behalf of the applicant that the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive.
In support of that submission, senior counsel for the applicant drew attention to his client’s age (48 years), his lack of any prior convictions, his stable work history, his having overcome a serious alcohol problem, his having lost contact with his own children as a result of the allegations against him, his having suffered both physical ill-health, and the fact that the offences were old. In addition, it was noted that there was a delay in close to four years between the time of PN’s complaint to police and the final disposition of this matter.
It was further submitted on behalf of the applicant that the sentencing judge had erred in not allowing for a greater gap between the head sentence of eight years and the non-parole period of six years. A lesser non-parole period was said to have been justified by reason of the applicant’s ill-health.
The evidence was that the applicant had undergone surgery for prostate cancer. The surgery was unsuccessful, and a cancerous growth had been cauterized. This meant that the applicant had to undergo the privation of a catheter and suffered constant diarrhoea and numerous urinary infections. In addition, the applicant was suffering from severe depression. He had of course attempted suicide once before, during the course of his trial.
It was submitted that the combination of all of these factors operated to make the service of a substantial term of imprisonment particularly burdensome. This should have been reflected, at the very least in a reduced non-parole period.
The sentencing judge correctly described the applicant’s offending as ‘extremely serious’, and as ‘callous and cruel’. She noted that in cases of this kind, principles of general deterrence, condemnation and just punishment were of central importance. The applicant pleaded not guilty and, plainly enough, could not call in aid any mitigation resulting from remorse.
The sentence of eight years was undoubtedly severe but, in our view, it was within the range available to the sentencing judge in the particular circumstances of this case. The non-parole period fixed was 75 percent of the total effective sentence. That, too, might be regarded as towards the higher end of the range available for a non-parole period in a case such as the present. It cannot be said, however, that it exceeded the range relevantly open to her Honour.
The applicant sought to rely upon additional material which, it was submitted, showed that his physical condition had deteriorated to a significant degree since his incarceration began. The evidence shows that for some months now he has been taking greater quantities of morphine than he was using at the time he was sentenced. It seems that he requires additional medication for pain management because of the constant urinary infections which are recurring.
The additional evidence falls short of meeting the requirements set out in R v Eliasen.[10] For one thing, there is nothing to indicate whether the additional pain that the applicant is now having to confront is likely to continue for some time, or whether it will abate, now that he has finally been able to be treated for his urinary condition. This Court will not lightly admit new evidence on appeal as to the circumstances surrounding an applicant’s physical or mental condition when, broadly speaking, those matters were before the sentencing judge, and fully considered by him or her.
[10](1991) 53 A Crim R 391.
In our opinion, the application for leave to appeal against sentence should be refused.
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