R v Alexander; DPP v Alexander
[2008] VSCA 191
•25 September 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 589 of 2008
| THE QUEEN |
| v |
| HENRY ALEXANDER |
| No 138 of 2008 |
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) |
| v |
| HENRY ALEXANDER |
---
JUDGES: | VINCENT, NEAVE and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 August 2008 | |
DATE OF JUDGMENT: | 25 September 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 191 | |
---
Criminal law – Conviction – Rape – Digital rape by personal care attendant of elderly patient suffering dementia – Whether verdict unsafe and unsatisfactory – M v R (1994) 181 CLR 487 – Reliability and credibility of single witness to incident – Jury properly instructed – Application refused.
Criminal law – Sentence – Crown appeal – Manifest inadequacy – General deterrence – Flagrant disregard of victim’s humanity and dignity – Whether sentence manifestly inadequate – Double jeopardy – Appeal allowed – No increase of head sentence but new non-parole period imposed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant/Respondent | Mr P G Priest QC with Mr R I Gipp | Ryan Carlisle Thomas |
VINCENT JA
NEAVE JA
WEINBERG JA:
The applicant was found guilty by the jury empanelled on his trial in the County Court at Melbourne, on 4 March 2008, on one count of rape.[1] He had no prior convictions.
[1]Crimes Act 1958, s 38(1): This offence carries with it a maximum penalty of 25 years’ imprisonment.
After hearing a plea in mitigation of penalty, the judge, on 23 March 2008, imposed upon a term of imprisonment of three years, the service of two years and six months of which were suspended for an operational period of two years and six months.
He now seeks leave to appeal against his conviction and the Director of Public Prosecutions has appealed against the sentence handed down.
The application for leave to appeal against conviction
This application is based upon the single ground that:
1. In all the circumstances the jury’s verdict is –
(a)unsafe and unsatisfactory;
(b)unreasonable and cannot be supported having regard to the evidence;
and in particular, a reasonable jury properly instructed ought to have had a reasonable doubt as to the applicant’s guilt.
The appeal by the Director of Public Prosecutions against sentence
The Director has appealed against the sentence imposed on two grounds:
1.The sentence imposed in respect of count 1 was manifestly inadequate in all the circumstances.
PARTICULARS
In fixing a term of 3 years imprisonment in respect of count 1, the sentencing judge –
(a)failed to sufficiently punish the offender to an extent which is just in all of the circumstances;
(b)failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;
(c)failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;
(d)failed to sufficiently protect the community from the offender;
(e)failed to have sufficient regard to the maximum penalty prescribed for the offence;
(f)failed to have sufficient regard to the nature and gravity of the offence;
(g)failed to have sufficient regard to the offender’s culpability and degree of responsibility for the offence;
(h)failed to have sufficient regard to the impact of the offence on the victim of the offence, and in particular, the impact of the offence on the immediate family of the victim;
(i)failed to have sufficient regard to aggravating features of the offending, and in particular –
·the extreme vulnerability of the victim, including but not limited to old age, dementia and incontinence, and
·the abuse of trust involved in the offending.
(j)gave to much weight to mitigating factors concerning the offender.
2.The direction by the sentencing judge to partially suspend the sentence in respect of count 1 resulted in a manifestly inadequate sentence in all the circumstances.
PARTICULARS
In directing that 2 years and 6 months of the sentence be partially suspended for a period of 2 years and 6 months (after the service of 6 months in custody), the sentencing judge –
(a)failed to sufficiently punish the offender to an extent which is just in all of the circumstances;
(b)failed to sufficiently deter the offender or other persons from committing offences of the same or of a similar character;
(c)failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;
(d)failed to sufficiently protect the community;
(e)failed to have sufficient regard to the maximum penalty prescribed for the offence;
(f)failed to have sufficient regard to the nature and gravity of the offence;
(g)failed to have sufficient regard to the offender’s culpability and degree of responsibility for the offence;
(h)failed to have sufficient regard to the impact of the offence on the victim of the offence, and in particular, the impact of the offence on the immediate family of the victim;
(i)failed to have sufficient regard to aggravating features of the offending, and in particular –
· the extreme vulnerability of the victim, including but not limited to old age, dementia and incontinence, and
· the abuse of trust involved in the offending.
(j)gave to much weight to mitigating factors concerning the offender.
The background
The complainant, to whom we will refer as M, was aged 85 years and resided at the George Vowell Centre (‘the Centre’), an aged care facility situated in Cobb Road, Mount Eliza. She suffered from dementia and incontinence.
The applicant, who was aged 34 years worked as a personal care attendant at the centre. His duties included the provision of assistance in the cleaning and hygienic care of such residents.
On 22 November 2005, the applicant and another personal care attendant, Marilyn Pleiter, were attending to M, when, according to Pleiter, she observed him to insert his finger roughly into M’s vagina.
In view of the contentions advanced in support of the application with respect to the applicant’s conviction, it is necessary to set out some significant parts, but by no means all, of the relevant evidence adduced in the trial.
The case for the prosecution
Marilyn Joy Pleiter stated that she was, in 2005, a personal care attendant of some 30 years experience, employed as an agency nurse. In that capacity, she had worked at the George Vowell Centre on approximately five occasions prior to 22 November 2005, and generally with the applicant. It was normal, she said, in providing care to residents, to work in pairs and there was a routine way in which elderly incontinent female residents would be changed and cleaned. The attendants would position themselves on either side of the resident’s bed and together unwrap the nappy with which she was covered. Her incontinence pad would be removed and one attendant would then wash her while the other stood by to assist if required. The resident would normally remain in the bed during the process and could be lying either on her back or front. If she needed to be moved, this was done by both carers
Pleiter said that, on 22 November 2005, she started her shift at the centre at 3.00pm and worked to 9.00pm. During the evening, she was working with the applicant and had gone about her duties until both were required to attend upon M. The applicant and she were wearing gloves and there were face washers or flannels, in a pre-moistened state, on the trolley that they were using. She said that the applicant took up a position on one side of the bed while she was on the other. M was lying on her left side with her head on the pillow and was facing towards her. The applicant remained on the other side of the bed while she removed the continence pad. He had a washer and commenced to wash M from behind with it. When M’s pad was removed, she was found to be incontinent of faeces and urine. M, who was awake and alert, was wearing a night gown that had been pulled up so that she was naked from the waist down and, as the cleaning was taking place, Pleiter was reassuring her.
Pleiter said that the applicant had the face washer and he ‘just like really hard wiped her’ with his right hand and cleaned her between her legs in a manner that she described as being very rough and cruel. M was yelling out, saying things like, ‘you’re a bitch, keep away.’ Prior to the cleaning process, M had not said anything but Pleiter noted that when she saw them enter the room, she became a little agitated. This, however, was consistent with the behaviour of patients with dementia.
She said that, once the applicant had wiped M, she saw that the face washer was in the palm of his hand and he then inserted his finger ‘right up’ into M’s vagina. Pleiter said that, when cleaning a resident, the face washer should cover the whole of the carer’s hand, including the fingers. Where the continence care of the resident requires the attendant to clean within the labia of the patient, a really soapy face washer is employed and the area is carefully washed with it. On this occasion, at the point of having wiped M the first time, the applicant had the washer in the palm of his hand and his fingers were exposed.
It was then that she saw him insert his ‘pointer finger’ into M’s vagina. The witness said it penetrated to ‘the end’, that is, the third knuckle. M responded by jerking right forward and was still yelling out. The witness indicated that she was positioned about 12 to 18 inches away from M’s genitals and towards the middle of her body when she made this observation.
Pleiter described the movement of the applicant’s finger as ‘just in and out’ and performed with some force. She said that she had never seen that action performed in the care of a patient and, shocked by what had transpired, she ‘freaked out.’
The applicant did not say or do anything after, or explanatory of, this action and she did not say anything to him concerning what had taken place. A nappy was placed back on M and she was tucked in before they left the room. The time was roughly about 7.00pm. She said nothing to anyone on that night about what she had witnessed, but appreciated what had occurred was ‘not right.’
She returned to the Centre on the next day (23 November) and completed her night shift (10.00pm to 7.00am). During the night, she was asked to do some work by the nurse in charge and it was during a conversation with her that Pleiter made mention of what she had witnessed.
Cross-examination
It was put to Pleiter that it must have been plain to her from the moment that it happened, that what she claimed to have observed was seriously wrong. She responded ‘definitely.’ However she agreed that she made no note concerning it but said that she did not normally make notations in a patient’s progress notes. She disagreed that on the night of 23 November, Louise Hawes, a Division 1 nurse, employed by the George Vowell Centre, made some adverse comment about her note taking abilities. She was asked whether she was aware that Hawes had criticised her performance and the witness said, ‘that she was surprised to learn later, that they had written out an incident report about me and I didn’t know about it.’ She rejected the claim that she had made a complaint about the applicant’s conduct only after and by reason of the fact that her own was the subject of adverse assessment on the following night by Hawes. The witness said she did not know about the incident report or that she had a problem at the time that she reported the matter.
However Pleiter agreed that, on 23 November, she was in the company of agency staff when a couple of the permanent employees were making critical comments (that she resented) directed at such personnel. She accepted that, on the same night, she was asked to move some furniture but denied that she refused to do so or that she objected to being directed to move it. She stated that, after these events, the George Vowell Centre had not asked her to work there again but said that they had previously offered her a permanent position. She agreed that personal care attendants are subject to the supervision of the Division 1 nurses and that she was expected to report to them anything that may impact on the care of the residents.
Pleiter said that the Division 1 nurse on duty and she was folding the washing on 23 November when she overheard two permanent female staff members talking about an entry by the Director of Nursing in some form of day book. She said that the staff members were –
all going crook about the agency staff [and that] it must have been the agency staff that left the place in a mess and then I’m thinking to myself, yeah, the Division 1 is going to come over and ask me to start cleaning up. So I thought well that’s nice.
The witness said that, of course, she resented the fact that agency staff were being ‘bagged’ by the permanent employees. She had worked the night before and knew that, when she completed her shift, she had ensured that everything was tidy and clean. She thought that she was being criticised when the matter was raised by Hawes and responded to her that there were bigger problems to resolve than worrying about a few chairs being moved around.
She agreed that, on the day after her statement to Hawes, she received a phone call from her employer and was asked, whether the centre was carrying out an investigation in consequence of the comment that she had made and she said that they did not mention that. The witness was asked whether, when she spoke to her employer, that was the first time that she told anyone that a patient had been interfered with. She said that she had informed Hawes the night before. Pleiter said she could not recall her exact words, but had said something to the effect that somebody at the centre was interfering with patients.
Pleiter was asked whether the making of proper notations in the patients’ progress notes was part of her duties and responded, ‘they didn’t want me to write in the progress notes there, they wanted me to do all the other things’ as she was an agency employee.
She was asked whether she had read progress notes from the George Vowell Centre relating to M. A number were put to her but she said she had not read any of them prior to 22 November. M’s progress notes contained repeated entries of the kind, ‘verbal and physical abuse continued throughout nursing interventions.’
She accepted that a permanent personal care attendant would have a better idea of the needs of a resident than an agency carer who was there from time to time and said that she could not acquaint herself with the 20 residents within the six hours of her shift when she was working ‘flat out’. During the periods that she was working with the applicant it was always very busy and the high care residents were almost all incontinent. It would not be unusual, she said, in the course of a shift, to change the pad of a person like M on multiple occasions, changing and washing the resident up to three or four times.
Pleiter agreed that, M had a number of skin folds in her genital area that were unconnected with her labia. It was very important to remove all faecal matter and all urine from within those folds in order to avoid the development of an odour problem and the risk of irritation and infection. In the course of doing so, it is inevitable, she said, that there will sometimes be some intrusion beyond the vaginal lips.
She stated that she was facing M, who was positioned on a bed about the size of an ordinary single bed, and that the applicant was on the other side. In response to being asked how many times the applicant wiped her, Pleiter said, ‘one big swoop first up’ with the face washer. She agreed that she had said previously that he had wiped her twice, that is, once with the pad and once with the face washer. She was asked what she told the police about the wiping and she replied that she had said that the applicant wiped M with ‘one big swoop of the face washer very cruelly.’ The witness was asked whether she first stated, ‘[The applicant] began changing the lady’s pad and he wiped her bottom with the pad’. She agreed and added that the applicant then wiped her with the face washer.
Pleiter agreed that there was one wipe with the pad and one wipe with the face washer. It was after the second that the applicant inserted his finger into the vagina, she said.
She was asked whether she did anything other than hold M by the arm or hip and she said that they both attached her pad and that she was reassuring M. The witness agreed that M was facing her and lying on her left side. She said that in order to carry out the cleaning task, the patient’s leg would be elevated. She said initially that she lifted M’s leg and then that she was unsure.
In response to questioning concerning the height of the bed, Pleiter indicated that it was just under her waist and that she was 4’ 11”. She agreed she was leaning over to hold M in place and in response to being asked if she could see the applicant penetrate M’s vagina from her position, she said –
I’m not just making it up, otherwise we wouldn’t be here. The bed is low because we’re both short. And I was always leaning over looking at what the other person is doing, that’s part of my job.
Rhonda Gayle Davis, a registered Division 2 nurse and currently employed as a course co-ordinator at the Education Training and Employment Australia situated in Heidelberg, stated that she was engaged in the training of people undertaking a Certificate III course in aged care work. This certificate qualifies the holder to work as a personal care attendant for residents at aged care facilities and the applicant successfully completed the course with her company. During the training, there is a module concerning the proper care and hygiene practices to be provided to incontinent elderly female residents. They are shown how to clean the resident’s genital area properly in a non-invasive procedure. The witness referred to the use of gloves, a face washer, and occasionally cotton buds, for this purpose. However, she emphasised the primary use of a clean face cloth which should be wrapped around the hand. She said that some people do prefer to ‘scrunch it up’ but that in doing so, the face cloth must always be positioned at the front of the hands once it is moved. The witness was asked about the use of the fingers and said, ‘no, they are never demonstrated or never shown to use fingers, you must always use a face cloth or cotton buds.’
The witness agreed that, if it were the case on having closer examination of the vaginal area, cleaning between the labial folds or skin folds was required, it would be done with a face washer. When asked how the cleaning would be carried out, she said, ‘the face wash would be folded around the hands and you would do it with a smooth motion.’ There would never be an occasion on which the students would be instructed to use a finger or fingers, without the face washer or to penetrate the birth canal with their finger. The witness said that they are taught to call on their Division 1 nurse or the supervisor or even a doctor if further assistance is required, but they are not to perform an invasive procedure.
Cross-examination
The witness agreed that it is inevitable that there will be occasions where the fingers, albeit wrapped in a face washer, will need to go within the labial folds in order to remove excrement. Personal care attendants are taught, as a part of their Certificate III training course, what should be done if they observe any incident of abuse of a patient. She said that it is part of their role to act as an advocate for the client, so they would be expected to report it to a superior, such as the Director of Nursing. She said that there were also forms that needed to be completed. These were available in all facilities.
The case for the applicant
Louisa Lily Hawes, a Division 1 nurse who was employed at KooWeeRup Regional Health Service and the George Vowell Private Nursing home, stated that she worked a shift between 10.00pm on 23 November 2005 and 7.15am on 24 November 2005. In the course of the night, she met an agency personal care attendant by the name of Marilyn Pleiter with whom she had not worked before. At some point in the early part of the shift, she asked Pleiter to make progress notes on a resident. The witness said that Pleiter’s response was that she did not know the resident and did not regard it as appropriate. The witness agreed that at some point Pleiter made an entry in the progress notes for that resident but that she could not make ‘head or tail of it.’ The witness was asked whether she spoke to Pleiter about it again and the witness said –
well I did ask her, I am trying to remember the exact time, which I can’t but generally to document and she wrote that entry because I insisted that she write the entry.
Hawes agreed that she asked Pleiter to shift some light furniture. There had been a request left by the Director of Nursing that the heart tables and the princess chairs were scattered and untidy. The witness decided that as Pleiter could not do her share of the work, that is, with respect to the note taking, she could perform that task. Until that point, she said, Pleiter had been co-operative and pleasant but when this instruction was given she suddenly presented as angry and said something like, ‘they’ve got more to worry about here than shifting furniture.’ She was asked whether there was any other conversation with Pleiter about her duties and the witness said –
just the documentation and the furniture and then I did send her round, asked her to go round with the other staff to perform the care needs for the incontinent residents.
At the end of her shift, Hawes took Pleiter to the nurse unit manager in charge of the ward and asked her to repeat any allegations she wished to make. Hawes was present and recalled Pleiter talking about sexual and physical abuse. However, the whole of that conversation did not ‘sink in’, she said, because she was suffering from sleep deprivation after 10 hours, but she recalled it was lengthy. She subsequently prepared two incident report forms in relation to Pleiter, one concerning her attitude to work. The other was not devoted to, but included, her abusive manner.
She identified a copy of the progress notes from the George Vowell Centre relating to M and was taken to an entry dated 11 June 2005 at 14.00, prepared by a Division 2 nurse. It read –
[M] incontinent of offensive, loose watery bowel motion at 12.45. Verbal abuse continued throughout hygiene needs being met. Stated repeatedly, you're killing me, what are you doing?
The witness was read the next entry for 14 June –
[M] was incontinent with loose offensive bowel motions after lunch today. Whilst staff endeavoured to clean her up [M] was verbally abusive shouting, you're hurting me.
The witness saw her own writing on that page which showed that she worked a night shift commencing on 29 June through to 7.15am on 30 June. It recorded that –
the resident incontinent of faeces at 0030… Loose large and very offensive stool. [M] was showered by two nurses as she was too dirty to be sponged ... [M] observed to have no insight into her condition or needs. Two staff managed her care with difficulty at half past 12 hours. Full bed linen change and clean clothes applied. Verbal and physical abuse continued throughout nursing interventions until resident returned to bed at 0120 when she was observed to be comfortable and sleeping.
She said that M would lash out with her hands at staff in attempts to try and hit them, punching, hitting, spitting and kicking.
The witness agreed that the next entry was made by a personal care attendant on 12 June 2005 which read –
[M] had very loose bowels this morning. [M] very agitated and abusive throughout hygiene care. [M] required a second shower at 1300 due to excessive diarrhoea. Highly agitated and abusive towards staff.
Another entry made by a personal care attendant read –
[M], very resistive, agitated and unsettled with regards to an ADL (activity of daily living). … constantly striking out at staff while attempting to attend to [M's] care needs. Extensive use of profanities. Verbally/physically aggressive on occasions. … in her room, RIB (resting in bed), positioned carefully … Prompted to start (food), continue and complete meal. Incontinent of urine two times.
The witness agreed that she had cause to look after the personal care needs of M and identified an entry that she had made in relation to M being verbally and physically abusive.[2]
[2]Progress notes recorded at the George Vowell Centre in respect of M from 1/6/2005 to 16/3/2006 in which there is a reference to M’s birthday.
Cross-examination
The witness stated that when an aged care facility requires extra staff there are agencies available which can be called upon to fill in the gap. When the personal care attendant from such an agency arrived they would be given two or three hours to look through progress notes and familiarise themselves with each of the individual residents.
The witness agreed that an agency nurse might have never been to the centre before and after two or three shifts may never work there again. She rejected the suggestion that, in practice, when they arrive they are effectively put straight to work. There were about 40 residents in the centre in November 2005 and each had a progress report which was secured in a cupboard at the nurse’s station. The witness agreed that the floor was divided into two halves and that there were a number of staff members responsible for each side. She stated that if there were 40 residents, there would be two staff members for each group of 20 residents.
She said that it was not the case that an agency personal care attendant would be expected to know the ‘ins and outs’ of what is within the resident’s progress notes and would normally be paired with a permanent staff member. As the temporary personal care attendants do their rounds, they use a hand over sheet, with which they are provided at the commencement of the shift, to identify the idiosyncrasies and needs of the various residents. Entry in the progress notes are made at any time during the shift when there was time to do it. Sometimes, however, the staff would be so busy that it might be hours before there was any opportunity to write them up.
She had never dealt with Pleiter prior to this occasion. She had been working since 10.00pm to 2.00am and agreed that, in that time, Pleiter had been pleasant and co-operative but when a request was made of her to move furniture her attitude changed dramatically. The comment made was to the effect that, ‘they’ve got a lot more to worry about here than shifting furniture.’ The witness was asked whether what Pleiter said alerted her to the idea that there might be something more to what she was saying. The witness said that she did not appreciate that until Pleiter said that there had been ‘interference.’
The applicant denied that he raped M on 22 November 2005 and denied touching M in the area of her genitals other than for a proper, lawful hygienic purpose. He said that his wife was a Division 1 nurse and it was through her that he obtained an interest in being a personal care attendant and that he obtained employment in aged care.
He completed his course in March 2004, and then later at the George Vowell Centre in October 2004.
The applicant outlined his duties as attending to the residents personal and hygiene needs, feeding and changing their clothes and putting them to bed. The applicant said that many of these patients were incontinent both faecally and with respect to urine. Upon becoming aware that a resident had soiled their pad, the applicant said that, with a co-worker, the resident would immediately have their pad changed. The applicant was asked how that would be done and replied –
well, of course there was two of us, one carer on one side of the bed, the other carer on the other side of the bed and then whoever one, like whichever one decided would, you know, would sort of do the wiping, the other would do the holding and what not, but we did it together.
With regard to the proper cleaning of residents a soiled pad was removed, he said –
you would clean front to back and the face washer, from my instructions and training, the face washer must cover your fingers at all times so there is in contact.
The resident was wiped from front to back in order to stop the spread of infection. The applicant was asked if, at any time, would it be necessary for the fingers of the personal care attendant to intrude beyond the labia of the resident and he replied, no. He said when holding a flannel, ‘your fingers are always covered by the face washer at all times.’ He agreed that there are folds of the skin and that if there is any faecal matter in the labia, it must be cleaned with the face washer covering the hands and employing downward motion wipes.
The applicant agreed that he had occasion, since he commenced his employment at the Centre, to deal with M on a regular basis over the period of October 2004 and November 2005. He said that he came into contact with M about two or three times per shift and that he would do five shifts in a week. He could not specifically recall attending to M on 22 November 2005 and denied that he inserted a finger into her vaginal canal.
Cross-examination
The applicant agreed that Pleiter and he had worked together on about five occasions. He agreed they got on well and that he had not given her a reason to dislike him, nor had she given him any reason to dislike her. He agreed that it would be fair to say that he took charge of changing M as he was more familiar with her personality than Pleiter but he could not recall 22 November.
The applicant agreed that there is no part of proper hygiene care that would require the insertion of a finger into M’s vagina and further agreed that the action of inserting a finger into a vagina is manifestly different to that of providing proper hygiene. He was asked whether it was possible to confuse those actions and he said that ‘you would spot the difference and they are physically different things to be seen.’
The applicant first turned his mind to the events of 22 November when he was asked to see Sergeant Beckhouse at the Frankston Police Station on 12 December 2005. He had not worked in that intervening period.
The applicant could not recall if he himself had any cause to make any notes on the progress report of M. When shown the progress reports, he could not find an entry that he had made.
The application for leave to appeal against conviction
The application is based upon the contention that the conviction of the applicant was unsafe, in the sense that a reasonable jury properly instructed ought to have had a reasonable doubt concerning his guilt of the crime alleged against him and, accordingly, the verdict should not be permitted to stand.
At the outset, it is, we think, necessary to identify the parameters within which the application must be considered.
· First, this was not a case involving any inconsistency of verdicts, there being only a single count before the jury.
· Nor was it one in which there was an absence of evidence on some critical issue so that a submission that there was no case to answer might have been made or in which there was large and possibly confusing body of evidence.
· No question has arisen with respect to the admissibility of any of the evidence before the jury or the manner in which the trial was conducted by the prosecution or defence counsel.
· There was only one accused before the court and the matter did not require the consideration or determination of any particularly complex issues of law or fact.
· The trial judge’s charge to the jury was standard in form and content and no complaint has been advanced with respect to it.
· The trial was, by current standards, quite short with the applicant being arraigned on a Wednesday morning and the jury retiring to consider their verdict before lunch on the following Friday.
The allegation against the applicant was quite straightforward. In essence, it was claimed that, whilst engaged in the task of attending an elderly and incontinent female patient suffering from dementia, he digitally penetrated her vagina. He denied that he had done so from the time that the allegation was first made and gave evidence to that effect in the trial, challenging both the reliability and the credibility of the only person who claimed to have witnessed the incident and whose evidence constituted the entire case against him.
The stance and contentions of the defence in the trial were also quite straightforward and it is inconceivable that the issues raised were not understood by the jury.
His Honour instructed the jury correctly in relation to the burden and standard of proof in a criminal trial, the elements of the offence that had to be proved, the process of the inferential reasoning and the use of evidence of prior inconsistent statements made by the witness. He was careful to ensure that the attention of the jury was drawn to each of the matters to which counsel for the defence referred in his address, pointing out that:
He said – look at hard facts in the case that do not rely on [Pleiter] and he named four to you.
(1)She was incontinent, badly so and often required a cleaning. It is a very sad circumstance and situation, he said, but it is a fact that you must consider.
(2)[M] was physically and verbally aggressive to all of the staff, not just to the accused man. Therefore there was nothing remarkable about her aggressive behaviour when she was changed on this day.
(3)Remember the evidence of Rhonda Davis, that according to protocol or training you must thoroughly remove all faecal from the skin folds for fear of infection, irritation and the like.
(4)Any PCA, any personal care attendant, would be expected to report such abuse straight away. It is part of the training and according to her, that is according to [Pleiter], [counsel] continued to you, she was shocked, she had never seen the like before but does not report it straight away.
He then took you to things are unlikely, in her account, “that beggar belief”, was the phrase he used and:
(1)That [the applicant] would not have been phased in any way by her aggression, [M’s] aggression which was usual;
(2)It beggared belief that if someone was minded to rape a patient in this way, that he would do it right in front of a witness, close at hand;
(3)It beggared belief that if you did see such a thing you would not say something immediately and considering the evidence of [Pleiter], [counsel] said you would not think it was in her nature to keep quiet about things. She was no shrinking violet. She would at least tell someone and she spoke to no one. And then back at work the next day, at the beginning of the shift, still says nothing. It is some hours into the shift before anything is said.
He reminded you of the evidence of Louisa Hawes who had no axe to grind, he said, and this is as to the reporting of the matter in the second shift. Early in the shift, she, Louisa Hawes, asks [Pleiter] to make some notes. In that she could not do so, she was asked to move furniture. She became suddenly angry and remember the background, [counsel] said, of the criticism of agency staff by permanent staff earlier in the day. And when she does say something it is not a direct complaint or a report. It is vague and imprecise. Even when pressed it is still vague and only later does she name [the applicant]. And who would you blame if you were doing so dishonestly. It has got to be him because after all he was the man that she was working with and had been working with mostly since her time there. She was stuck with him.
He then took you to matters that were raised by her for the first time in cross-examination of her and should be used, he said, as to the issue of whether or not she was really a truthful and accurate witness and:
(1)In evidence-in-chief there was nothing about the comments, the calming comments [counsel] said to you, made by the accused man. “Now come on now, don’t be silly”, et cetera. You might think she left that out of her evidence-in-chief because she knew it was inconsistent with her claims against the accused. It really showed that he was trying to soothe and calm the patient.
(2)For the first time in cross-examination, or inconsistent in cross-examination, the number of wipes – she said in evidence-in-chief one wipe and it became apparent that her position had been two.
(3)She had previous seen (sic) that she said that she had seen [the applicant] cleaning between the skin folds of the patient.
(4)[Counsel] took you to her evidence relating to her previous statement about who was holding the leg and ultimately she was uncertain about whether [M’s] leg was held by her or by the accused man.
He then took you to what he termed as “further improbabilities” in [Pleiter’s] evidence. That included her height at 4’ 11” seen in the context of her leaning over the patient holding the hip and shoulder, looking over the hip and not between the legs, not at between the legs and that she conceded that [M] had a number of skin folds in that area. She could not have seen, [counsel] put to you, what she says she did. And she is the foundation of the Crown case.
[Counsel] asks you to assess using your common sense and experience of human nature. Unless she satisfies you beyond reasonable doubt as to her version the only verdict that can be given is that of not guilty, he said. The most generous interpretation of evidence is that she was mistaken. And you will remember in that regard that even on her evidence she has the face washer still in the hand of the accused man, when she says the penetration occurs with that hand.
It has not been suggested that his Honour did not put the defence position fairly and accurately.
In short, after analysis of the transcript and the judge’s charge, there is nothing that could give rise to any reasonable concern regarding the fairness of the trial.
Against that background, and put at its simplest, the argument advanced before us was that nothing in the evidence-in-chief of the applicant or in his cross-examination could be seen to impinge directly or indirectly upon the reliability of his narrative of the events or his personal credibility and nothing in the other evidence was capable of affecting the situation. His version was consistent with the objective circumstances and clearly could not reasonably be rejected properly applying the standard of proof in a criminal trial, it was said. However, the argument proceeded -
By way of contrast, there were a number of things reflecting adversely on [Pleiter’s] credibility:
·First, the educator, Ms Davis, had given evidence that personal care attendants are taught to report any incident of abuse immediately, and she would expect any person completing the necessary Certificate III to know that. Despite this, [Pleiter’s] did not say anything to [the applicant] at the time of the alleged “horrifying” event, report it to the Division 1 nurse on duty or the Director of Nursing, or to her employer until the following day.
·Secondly, the circumstances in which she made complaint are instructive. She heard a couple of permanent staff “bagging” agency staff and she thought she was being criticised. This was, she thought, a “bit rude” and she was annoyed.
·Thirdly, this was against a background that Hawes had filled out incident reports concerning her performance, and had asked her to make a notation in Progress Notes (which [Pleiter’s] said she was unable to do). She relied on agency work for her employment.
·Fourthly, the allegation was made after [Pleiter’s] was asked to move furniture, at which time, according to Ms Hawes, her attitude changed dramatically and she became angry. The allegation that is then made is couched in very vague terms and does not identify [the applicant] directly.
Moreover, there are aspects of her evidence which affect the credibility of her account:
·First, she is only 4’11” tall. [M] was facing towards her. She claimed to have been able to see full digital penetration looking over [M’s] hip. This is difficult to accept.
·Secondly, the skin folds and drooping labia make it even more unlikely that she would have been able to observe what she claimed to have seen. (The most generous interpretation from this evidence is that she may have misinterpreted what she claimed to have seen.)
·Thirdly, she had previously described salient features of the event differently. At trial she said that she was holding [M’s] leg up, whereas previously she had claimed that [the applicant] had done that. Further, previously she had said that [the applicant] had wiped only once; but under cross-examination said that he had wiped twice, and had cleaned in the skin folds.
·Fourthly, it emerged in cross-examination for the first time that [the applicant] was saying to [M] at the time, “Don’t be silly now, it’s okay”. These soothing words are not something one would expect from someone mistreating the person to whom they are said.
Other aspects also are troubling:
·First, it beggars belief that someone minded to digitally rape a resident would do it as blatantly as it is claimed that [the applicant] did.
·Secondly, the motivation for such an offence is inexplicable. It is unlikely that it might have been meted out as some form of crude punishment. [The applicant] had changed and washed [M] two or three times a shift, five shifts a week, for over a year (i.e. literally hundreds of occasions). She, as the Progress Notes demonstrated, always had loose and offensive bowel motions. Further, she was often verbally and physically abusive to the staff charged with her care. Thus there was nothing unusual in the circumstances of 22 November 2005 which might have prompted the behaviour alleged.[3]
[3]Applicant’s written submissions.
These submissions mirror those advanced by the defence in the court below through the evidence adduced, in the course of cross-examination of Pleiter and the arguments of counsel in his final address.
The task to be undertaken by an appellate court in this situation was the subject of attention in the High Court in M v R[4] where it was said –
… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[5]
[4](1994) 181 CLR 487, 493.
[5]Ibid 494-5.
In undertaking that task in the context of the present case, we have carefully reviewed the evidence, bearing in mind, in particular, the various matters which it was submitted can be seen to impact upon the credibility and reliability of Pleiter. Essentially, it was argued that, the conduct in which the applicant engaged was extraordinary in the circumstances and not only involved a very serious breach of the criminal law but of the trust reposed in him as a carer. The only evidence that he behaved in this fashion was given by a witness who was unreliable and probably motivated by anger at being criticised for the quality of her work. A number of matters were called in aid to support these contentions, including the absence of an immediate report and the suggestion that Pleiter may not have been able to observe the alleged event as a consequence of her height and the position in which she was standing at the time that it allegedly occurred.
These were all factors going to the question whether the witness’ evidence could be accepted beyond reasonable doubt in what could be fairly described as a credibility case par excellence. This was made clear to the jury who, notwithstanding the challenges made to her evidence, accepted the central features of Pleiter’s version. The question that we must decide is, whether it was open to them to do so? In other words, do the members of this Court have a doubt about the credibility and reliability of the witness and therefore about the applicant’s guilt which should have been held by the jury?
We do not consider that it is necessary to embark upon a detailed exposition of the matters relied upon by the applicant to support his contention and sufficient to state that, whether they are considered separately or in conjunction, the answer to the question is – no.
It is important to bear in mind, the points that we earlier made concerning the absence of any factors, other than those directly bearing on the witness’ credibility as distinct from possible unreliability, arising from some other cause. As the High Court pointed out in M v R, we:
…must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. …[6]
The latter consideration assumes particular importance when the challenge to a jury verdict is based solely on the contention that it was not open to them to resolve the issues of credibility as they did.
[6](1994) 181 CLR 487, 493.
Obviously, it is not possible to know what view was taken of the various considerations that were drawn to the attention of the jury concerning the credibility of Pleiter and quite inappropriate to attempt to attribute to them any specific reasoning processes with respect to any of them, but it must be pointed out that there were sensible reasons available to them that would explain why they clearly did not attribute significant force to counsel’s arguments on this aspect. For example, whilst it would have been apparent to any ordinary person that an incident of abuse should have been reported immediately, the jury may have thought that it was distinctly possible, as a matter of human reality, that an individual who witnessed such an incident might not do so for a number of reasons and perhaps intend first to seek advice from a superior, as the witness claimed. The experience of the courts, and of the community generally, we suggest, indicates that it is common enough for people to hesitate before reporting even the most serious offences, particularly on the first occasion on which they had been exposed to the form of conduct involved.
Similarly, after having seen and heard Pleiter, the jury must have rejected the possibility that she accused an innocent person with whom she had had a normal working relationship of conduct of a most egregious kind by reason of nothing more than a feeling of vindictiveness against others or because she had been criticised by someone else. The jury might well have taken account of the fact that Pleiter’s interest in obtaining further work at the George Vowell Centre could be affected by reporting any mistreatment of a patient which she had observed. Pleiter, it should be remembered, had been engaged in such work for over 30 years and the jury would have been in no doubt that she would have understood the extreme seriousness of his allegation and the possible consequences to the applicant.
Again, Pleiter claimed to have been able to see what took place. It was put that her height would not enable her to do this. There was evidence as to her position at the time and there were, in the various case notes tendered, references to the bed which it appears was adjustable and at its lowest height setting. Insofar as it is possible to determine that matter by reference to the transcript, her version could reasonably be accepted. We note, in this context, that there was no questioning of witnesses concerning the height of such a bed at its lowest setting by reference to which her evidence could be challenged.
Finally, the evidence indicated that the particular resident always had loose and offensive bowel movements and was often verbally and physically abusive to the staff charged with her care. This evidence was adduced, it seems clear, to provide a foundation for a claim that the conduct attributed to the applicant was inexplicable and highly improbable in a normal work setting. That the action would have been performed in the presence of someone who for practical purposes was a relative stranger although they had worked together on a few occasions was almost inconceivable, it was argued. Whilst it can be accepted that the evening of 22 November presented no unusual circumstances or problems to the staff at the centre, the jury may have considered that these features did not impinge on the probability that the assault took place, given the very difficulties of management and the nature of the tasks undertaken by M’s carers and the distinct possibility that, on this occasion, the applicant may have succumbed to feelings of frustration or anger.
We ourselves do not see, in the record of the trial, any discrepancies or inadequacies in the evidence of Pleiter of a kind that would cause us to consider that there is a significant possibility that the applicant was wrongly convicted. We conclude that it was open to the jury to be satisfied upon the evidence of Pleiter that the applicant was guilty beyond reasonable doubt. It follows that the application for leave to appeal against conviction must be dismissed.
The appeal by the Director of Public Prosecutions against sentence
The Director of Public Prosecutions has appealed against the sentence imposed upon Henry Alexander, to whom we will now refer as the respondent, on the ground that both the period of imprisonment imposed and the order for partial suspension made have resulted in a disposition that can be seen to be manifestly inadequate to the extent that the intervention of the Court is required.
There is no need to recite the well known and regularly applied principles applicable in the consideration of an appeal of this type.[7]
[7]R v Clarke [1996] 2 VR 520, 522. See also DPP v Johnston (2004) 10 VR 85; DPP v Bulfin [1998] 4 VR 114; and DPP v Bright (2007) 163 A Crim R 538.
We have already addressed the circumstances surrounding the commission of the respondent’s offence. The sentencing judge accepted that the respondent did not suffer from any psycho-sexual disorder and concluded that what he did was not motivated in any sexual way to commit the offence which he held to have been spontaneous.
His Honour made no finding as to the respondent’s motivation but, consistent with the jury verdict, imposed sentence on the basis that the respondent acted ‘intentionally and with no bona fide belief’ that his behaviour was appropriate in cleaning M. With respect to the respondent’s personal circumstances, his Honour found:
You are a 36 year old man who has no prior convictions. I found the character evidence called and relied upon on your behalf powerful and I see you as a man of hitherto high character.
You are married and have two children, a girl aged five and a boy aged three. You are described as a devoted father.
You were born in Chile and came here with your parents in 1977. You were aged five. Your parents separated when you were a teenager and you stayed with your mother. You have a younger sister and an 18 year old half-brother, your father’s son. You have seen little of your father or half-brother over the last decade. You are very close to your mother who, like you and your sister, lives on the Mornington Peninsula.
You went to a number of Catholic Primary Schools and then to Mazenod College in Mulgrave, where you obtained your VCE in 1990. Between 1991 and 1994 you studied family studies and psychology at the Australian Catholic University in Chadstone. You moved away to Latrobe University where you graduated as a Bachelor of Arts in 1998, majoring in archaeology. You have found it difficult to find work in that area. There has been further study including in retail travel, first aid and then aged care. You have worked consistently, managing the Olympic Ice Skating Rink in Oakleigh, working with Hertz Australia and at a Retravision store in Rosebud.
You obtained a Certificate 3 qualification in aged care, studying in 2003 to 2004. You were introduced and encouraged to do this by your wife, who is a Division 1 nurse currently working at the Royal Children’s Hospital. After that you worked at an aged care facility in Mt Martha and then, as stated, at the George Vowell Centre.
You left there soon after Ms Pleiter’s allegations. There were other like allegations made. You have been acquitted of those charges or the Crown has entered a nolle prosequi. You are to be treated as innocent of those.
In January 2006, you began a domestic cleaning business. [Counsel] pointed out that media coverage of these proceedings (there has been a committal and three trials in 2006 to 2008) caused that business to fail. Since September 2006 you have worked as a sales assistant with a Moorabbin outdoor furniture business.
As I have stated the evidence of your good character is very powerful. Particularly, a number of people with whom you have worked as a personal care attendant and at the George Vowell Centre (both as work colleagues and supervising you) speak extremely highly of you. Variously, you are described as thorough, reliable, caring, gentle and compassionate in your dealings with residents under your care. More generally you are described as a genuine, loyal and sensitive man, friend and father.
Unsurprisingly, his Honour regarded the respondent’s prospects of rehabilitation as good. In summary, there were powerful factors militating in favour of mitigation of penalty in the respondent’s case to which the sentencing judge appreciated that he was required to have proper regard.
However as his Honour stated –
… this offending was also a very serious invasion of the sexuality, the person and the dignity of a highly vulnerable woman. Although without sexual motivation it remains a serious sexual abuse. [M] was placed in sad and dependent circumstances through no fault but rather age and illness. Your breach of that trust meant a humiliation that may be difficult to measure in terms of her likely or possible personal capacity but which has been keenly felt on her behalf by her family.
In this context, it is important to set out paragraphs relating to the victim impact of two members of M’s family as they demonstrate the very considerable importance of general deterrence in a case of this type.
The victim impact statement of [L] and [H] speaks with admiration and love about their mother and grandmother and her life. She is still alive today, as I understand. She lived an active, vital life until a serious stroke in 1992 badly affected her capacities. It, the victim impact statement, speaks of the sad impact of her dementia which has been, as often, variable in its effect and also of the devotion of her husband who during his life visited her several times a week.
The impact on him and the family upon hearing of your violation of her is described as devastating. It caused the family to move [M] to another facility which was difficult and stressful.
The victim impact statement of [L] and [H] is an intelligent, dignified and moving document. I quote from its final paragraphs.
“We cannot know what impact the rape has had on [M], but we do not believe anyone can say with certainty that her mental capacity was so deteriorated that she was unaffected by it. It is very distressing to imagine what [M] may have comprehended of the abuse that she suffered, especially given the circumstances she faced in seeking help on her own account and her limited ability to communicate her feelings and concerns to her family and other carers.
When [M’s] husband was told of the allegations by the management of George Vowell in December 2005 he was fully able to understand the nature and seriousness of the allegations. The impact of these events on him was grievous. It was an extremely serious breach of the trust that he had to place in her carers, and it was made all the worse knowing how vulnerable [M] was and that she was incapable of defending herself. The allegations would be deeply confronting for any husband and especially so for a man of his generation. We know that he felt extremely uncomfortable discussing it and profoundly distressed by what had happened. His health deteriorated rapidly in 2006. He passed away in September that year. We are saddened to know that this matter weighed heavily on his thoughts in his last year of life.
One of the emotions that he felt after learning of the allegations was to blame himself for what happened to [M]. Other family members have also shared this feeling. It is difficult to have to rely on a nursing home to care for a loved one and it is cruel when that trust is violated as seriously as it was here. It is not right that he or any of [M’s] family should feel responsible for the abuse [M] suffered, but it is a natural response and one that has been, and continues to be, painful for us to deal with.”
It is apparent upon consideration of the transcript of the plea hearing and his Honour’s sentencing remarks, that the judge directed attention to all relevant factual circumstances and principles of law in his determination of an appropriate sentence in this case. He fell into no specific error of omission or commission with respect to any of them. However, notwithstanding the considerable care with which he approached his task, the sentence at which he arrived was manifestly inadequate and meets the requirements set out in DPP v Bright[8] concerning the circumstances in which the intervention of this Court is necessary. It simply did not reflect the seriousness of the conduct involved, or the significance of general deterrence in a case of this kind.
[8](2007) 163 A Crim R 538.
Neither the extreme vulnerability of M nor the flagrant disregard of her humanity and dignity inherent in the respondent’s conduct requires emphasis. He had undertaken training with respect to the provision of care to the aged and can be taken to have well understood the nature of his obligation as a carer. Even had he not done so, they would have been recognised by anyone with a modicum of sensitivity or common sense. This case is also a salutary reminder that the victims of an offence regularly extend beyond the person directly offended against. The sense of outrage and unjustified guilt experienced by the member’s of M’s family is evident and entirely understandable. It is no easy thing for members of a family, who for one reason or another find it impossible to care for an elderly relative, to entrust their care to strangers in a nursing home. At minimum, they must be able to have confidence that the elderly will not be abused in such settings. For more than one reason, if the trust reposed in a carer is breached by the commission of a serious criminal assault of the kind perpetrated by the respondent, the imposition of severe punishment must be anticipated. The rights not only of the immediate victim but of all of the victims affected must be vindicated. There should be no doubt concerning the condemnation of the community of the conduct involved and its view that behaviour of this kind will not be tolerated. Obviously through the sentences that they impose, the courts must endeavour to deter those who would criminally abuse their position and power in this way.
Giving effect to the principle of double jeopardy and notwithstanding its inadequacy, we do not propose to increase the head sentence of three years. We direct that the service of 18 months of that term be suspended for an operational period of two years. That means that the respondent will serve an immediate custodial sentence of 18 months.
2