R v B

[1992] QCA 125

COURT OF APPEAL  [1992] QCA 125

COURT: SUPREME COURT OF QUEENSLAND  CA No 291 of 1991

The Chief Justice, Justice Pincus and Justice McPherson

Heard: 8 May 1992

Delivered: 27 May 1992

THE QUEEN

v

B

#DATE 27:05:1992

CWDS: CRIMINAL LAW ‑ VERDICTS ‑ UNSAFE ‑ SENTENCE ‑ Appellant sentenced to 2 1/2 years for indecent dealing with 12 year old girl ‑ whether verdict unsafe or unsatisfactory having regard to inconclusive medical evidence of penetration ‑ whether sentence excessive given employer/employee, age disparity and previous sexual offences.

JUDGE1: JUDGMENT OF THE COURT

In October 1991 the appellant was tried in the District Court at Southport on an indictment charging six counts.  Counts 1 and 2 charged indecently dealing with a child under the age of 16 years; counts 3, 4 and 5 charged him with rape of the same child; and count 6 with gross indecency consisting of having carnal knowledge by anal intercourse of the child.  That, in the form in which it appeared in count 6, is not an offence known to law, and the jury were, in the end, not called upon to return a verdict on the charge in count 6.

As regards counts 3, 4 and 5 charging rape, it became evident in the course of the trial that the prosecution would not succeed in proving the element absence of consent.  The judge announced that he proposed to direct verdicts of not guilty in respect of those charges.  The trial accordingly proceeded on the footing that, as to those counts, the jury might find verdicts of guilty against the appellant of unlawful carnal knowledge, or alternatively indecent dealing.

In the result, the jury entered verdicts of guilty of indecent dealing in respect of each of the five remaining counts 1 to 5.  The appellant was sentenced to imprisonment for terms of 12 months on counts 1 and 2, and 2 1/2 years each on counts 3, 4 and 5, to be served concurrently.  He now appeals against those convictions and seeks leave to appeal against the sentences imposed.

The offences were alleged to have been committed at the Gold Coast between January and August 1990.  The appellant was a man aged 50 years at trial and 49 at the time of the alleged offences.  The complainant was a school girl who turned 13 on 1 August 1990, so that she was 12 years old when the events alleged took place.  She first met the appellant when, on her behalf, her mother responded to a newspaper advertisement offering work.  The appellant was conducting a business of retailing confectionary by house calls, and for that purpose employed a number of school‑age girls and boys.  The complainant started working for him in February 1990.  She worked after school two or three afternoons weekly between 4.00 and 7.30 p.m. The appellant would drive her around the suburbs and then bring her home in his car at the end of the day.

According to her account, the first incident occurred at Runaway Bay in the course of the journey home.  She was in the front seat of the car and he was driving.  He stopped the car and called her over to his side of the seat.  He put his hand up her skirt, touched her vagina, and then kissed her.  He repeated this conduct a couple of days later.  On each occasion he gave her $5.  These incidents were the subject of counts 1 and 2.

The offence the subject of count 3 took place, again a "couple of days" later, at O'Connell Park.  It was night‑time.  He stopped the car and said "Do you want to make love?"  She said "No", but he took her by the hand and led her into the park.  She stood with her back to a tree and he pulled done her pants as well as his own.  She said he placed his penis in her vagina and moved it back and forth.  It hurt her, and she noticed afterwards that she was wet and sticky.  He told her "I loves ya", and gave her $10 or $15.  He engaged in similar conduct on other occasions, she said more than five times and at other locations she identified, like a park in Ball Street, a short‑cut to the Coombabah High School, and near the Benowa High School.  On each occasion he took her by the hand.  They walked over and she lay down on her back on some blankets he brought with them.  She would be asked to take down her pants and he would put his penis in her vagina.  She let him do so because she was frightened that he would "tell on her" for smoking.  Apart from him, she had no other means of getting home.

On the last occasion they went to O'Connell Park again.  She lay on her back on a seat of a park bench and he placed his penis in her vagina.  On a previous occasions when they were in the car near the park at Ball Street, he had said "I'm going to fuck your bottom", and asked whether she had done anything like this before.  She said "yes" because she was frightened.  She was told to lie on her stomach and he put his penis in her bottom.  It hurt her and she called out to him to stop.  She felt her penis in her; it hurt a lot and "it felt like it was up in my stomach."  This took place in the back seat of the car.  It was originally the subject of count 6 in the indictment.

The complainant stopped working for the appellant when her mother commenced a similar business of her own in August 1990.  Her complaint against him was not made until October 1990.  Her mother's business continued until about December of that year.

Apart from the complainant's testimony, the only other evidence at the trial was that of her mother and of a paediatrician who examined her in October 1990.  Her mother confirmed that the complainant used to bring home $20 or $25 while working for the appellant, which was a good deal more than the complainant herself said she was receiving from her sales of 18 to 24 bags of lollies at 40 cents each.

On examination the paediatrician found the complainant's vagina to be "very wide and dilated", which "could be" consistent with something being placed in her vagina some time before.  However, the hymen, located 1 to 2 centimetres from the entrance to the vagina, was intact.  It was, the medical expert said, capable of being stretched without being ruptured.  On examination externally, the anus proved to be normal; there was no sign of scarring, but tissue in that area was said to be capable of being stretched, "and it requires quite a degree of stretching where the tissue will fissure and split".  The paediatrician "couldn't discount it as a possibility" that some object like a penis had been placed at the entrance to her vagina or in her anus "with some movement".  Under cross‑examination he agreed that without lubrication he would have expected to have seen scarring or other evidence of damage if there had been full penetration of the anus or vagina only some two months before.

The judge in his summing up gave the conventional warning about acting on uncorroborated evidence in cases of this kind, and of the caution to be exercised in considering the testimony of a child witness.  He explained the requirement of sexual penetration necessary to constitute the offence of unlawful carnal knowledge, and he instructed the jury on the elements of the offence of indecent dealing.

No complaint was made about the summing up in these or other particulars.  The verdicts of indecent dealing show that the jury were not satisfied beyond reasonable doubt of the element of penetration.  The verdicts were explicable only on the footing that the jury nevertheless found that the appellant had placed his penis at or against the complainant's vagina.  To that extent it is evident that the jury must have had a doubt about her testimony that his penis had been "in" her vagina.  No doubt the medical evidence tended to induce such a conclusion.

It is clear, however, that the jury accepted the substance of the complainant's testimony about the several incidents or occasions on which the appellant had used or abused her sexually.  It was nevertheless submitted that they ought to have rejected her account of events as a lie because, if what she said was true, there would on examination have been visible scarring or other signs of the anal penetration of the nature or extent of which she had testified.  Once that became apparent, the jury ought, it was submitted, to have entertained a reasonable doubt about the reliability of her evidence as a whole, with the consequence that all the verdicts were unsafe and unsatisfactory and should be set aside.

The difficulty with this approach is that to make it good requires a literal acceptance of the complainant's testimony that the appellant's penis had been inserted "in" her vagina and anus.  It was only on the hypothesis of some such degree of penetration that the medical evidence was capable of damaging her credibility; for it was only in that event that the presence of physical signs like scarring would have been expected and visible on examination.  As to that, it was, on the evidence of the paediatrician, possible that something well short of full penetration had in fact taken place.  No evidence was given about bleeding or similar symptoms having occurred shortly after any of these events, such as might suggest that full penetration of either organ had taken place.  On the other hand, the evidence of dilation of the vagina raised what the paediatrician acknowledged to be the possibility that something like a penis had been placed at the entrance to the vagina and moved about.  It finds some circumstantial support in the complainant's testimony that on the first occasion at O'Connell Park the appellant had said to her "I know a way you can do it and still remain a virgin".  Her evidence, although not corroborated in any material particular, was uncontradicted.  The appellant did not at the trial elect to give evidence himself, and there was no evidence to show anything in the nature of a denial on his part.  Adopting a suitably cautious approach to the matter, it was open to the jury, while reserving a doubt whether full or even partial penetration had occurred, to conclude that the appellant had placed his penis on or against, rather than in, the entrance to her vagina.

The appeal against conviction therefore fails.  As to sentence, it is acknowledged that sentences of up to 2 1/2 years were within the range for offences of indecency of this kind.  It was submitted, however, that past offences of that order of magnitude had been imposed in cases in which the offender had abused a parental or similar relationship to or responsibility for the child.  The present instance, is, however, one in which the appellant took advantage of a child employee in his care; and there is evidence from her that she complied with his wishes because, without his assistance, she had no other means of returning home.  The disparity in ages between the appellant and the complainant was rightly regarded by his Honour as an aggravating feature, as was the appellant's persistence with the offence over a period of some months.  Of equal if not more importance is the fact that on 12 June 1986 the appellant had sustained convictions for offences of sodomy, unlawful carnal knowledge, and indecent dealing (two counts) with a girl aged 15 said to have been a virgin; and indecent dealing with another girl under 16 years, committed in September 1985.  On that occasion also he had succeeded by tempting girls with money payments.  He was sentenced to terms of imprisonment cumulatively amounting to two years, the judge expressing the opinion that "severe punishment is the only form of deterrence for offences of this kind".  Despite that lesson, the appellant, although older, is evidently no wiser.  The imposition of a higher sentence in the present case was therefore justified even if for a series of less serious offences.

The appeal against conviction should be dismissed, and the application for leave to appeal against sentence refused.

ORDER:  Appeal against sentence dismissed.  Application for leave to appeal against sentence refused.

Representation:

Counsel for the appellant:     P Nase

Solicitors for the appellant:    Price and Roobottom

Counsel for the respondent:   McGuire

Solicitors for the respondent: Director of Prosecutions