R v Dyer
[2015] QDC 302
•3 December 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
R v Dyer [2015] QDC 302
PARTIES:
THE QUEEN
v
TROY NATHAN DYER
(defendant)
FILE NO/S:
1581/15
DIVISION:
Criminal
PROCEEDING:
Contested Sentence
ORIGINATING COURT:
District Court at Beenleigh
DELIVERED ON:
3 December 2015
DELIVERED AT:
Brisbane
HEARING DATE:
30 November 2015
JUDGE:
Sheridan DCJ
ORDER:
I am unable to find on the balance of probabilities that the complainant did not tell the defendant her age or that she was sexually experienced.
CATCHWORDS:
SENTENCE – CONTESTED – where defendant is to be sentenced on two counts of carnal knowledge of a child under 16 and three counts of indecent treatment of a child under 16 - where dispute as to defendants knowledge of complainant’s age and previous sexual experience.
COUNSEL:
R Hood for the prosecution
C Eberhardt for the defendant.
SOLICITORS:
Office of the Director of Public Prosecution.
Robertson O’Gorman for the defendant.
The defendant is to be sentenced on his own plea of guilty to two counts of indecent treatment of a child under 16 and two counts of carnal knowledge with a child under 16. The pleas were given at the commencement of the trial leaving the only charge to be determined by the jury, the offence of rape.
The particulars of that charge was that the defendant penetrated the complainant’s mouth with his penis. Upon being arraigned on that charge, the defendant indicated he would plead guilty to the alternative charge of indecent dealing. The defendant entered a plea of not guilty to rape. The prosecution proceeded with the charge of rape.
The effect of the defendant’s pleas, including the indication that on a charge of rape he would plead guilty to the alternative charge of indecent dealing, meant that the only issue which was left to be determined by the jury was whether the alleged act of oral rape was done without the consent of the complainant.
The prosecution case depended on whether the jury accepted the evidence of the complainant, LTC. Her evidence was that when the defendant asked her to “suck his dick”, she repeatedly, she said three times, told him, “no, no, no”, to which she says he then said, “do it”, and she did. The jury returned a verdict of not guilty on that charge but returned a verdict of guilty on the alternative charge of indecent treatment of a child under 16.
Given the narrow issue in dispute and given the jury’s verdict, there can be no doubt that the jury did not accept the complainant’s evidence on that issue; that is, the jury did not accept the complainant did not consent to having oral sex with the defendant.
For sentencing purposes, it was accepted by the prosecution and defence that the issues in dispute were:
1. whether or not the defendant was told by the complainant she was 16 years old prior to the offence being committed; and
2. whether or not the complainant told the defendant she was sexually experienced prior to the offences being committed.
The defendant says that he was told by the complainant she was 16 and was told by the complainant she was sexually experienced.
It is accepted by the prosecution and defence that the determination of those facts impacts on the relative seriousness of the offences and may impact upon the appropriate penalty to be imposed.
Both counsel referred to s 132C of the Evidence Act 1977 (Qld). Both said, pursuant to that section, the degree to which the Court must be satisfied of a contested fact is on the balance of probabilities. It is accepted at all times, the onus remains on the Crown.
The complainant was called to give evidence in the contested sentence proceedings. The complainant had previously given a s 93A statement and pre-recorded evidence in the trial proceedings. All of her previous evidence confirms a consistency in terms of her evidence on the factual issues now in dispute. At all times the complainant has denied having told the defendant her age and has always denied having ever said she was sexually experienced. She denied having told the defendant she was on the contraceptive pill.
In the contested sentence proceedings, the complainant proved to be a difficult witness. The complainant appeared to be completely disinterested and dis-engaged. The complainant answered most questions using monosyllables, making little eye contact and generally gazing around the courtroom. I found the complainant to be a very unhelpful and uncooperative witness.
I found it very difficult to determine whether she could not remember all the events on the night in question or chose not to remember all the events or whether she simply did not want to assist in the process or whether she was simply lying.
The defendant gave evidence at the contested hearing, though not at the trial. He said, when driving back to the house from the train station, he had asked LTC, “How old are you girls?” He said, LTC had responded that she was 16. He said that SBZ had also responded, though he said, “I can’t remember exactly what she said, 15 or 16.”
From the description given by the defendant of LTC at that time it would seem not unreasonable for him to have accepted that she was 16. In cross examination when asked, “Can you describe [LTC] at that point?”, the defendant responded, “I remember her being quite well physically developed – quite curvaceous.” When asked to explain what he meant by quite curvy, the defendant responded, “Just her whole body was curvy, especially the – breasts were quite well-developed.” In cross examination, the defendant did not deny that her breasts was one of the first things he noticed.
In describing the events once he and LTC were in the bedroom at the care house, the defendant said that he asked LTC if she was on the pill. He said, he could remember that she said, “Yes. I’ve had sex with – many times.”
In describing the events in the bedroom, his evidence was that he asked her before he carried out every step. When asked what words he used, he responded, “First of all, it was do you want to kiss. And then it was do you want to lick my breasts. And then it was – she was asking sometimes; I was asking sometimes.” He said, when he asked, “Do you want to have sex?”, she replied, “Yes, sir. I’ve had sex with many guys.”
The evidence he gave in these proceedings contrasted with his record of interview where he denied that any of the events the subject of the five counts took place. In fact, in that interview he denied even knowing the complainant.
The explanation given by the defendant for lying in the record of interview was that he was afraid of losing his job and his girlfriend. He said he knew he would be “dismissed straightaway.” He accepted that what he had done was wrong but denied he was afraid of criminal charges.
The explanation given by the defendant is hardly an excuse for his conduct but it does not necessarily lead me to conclude that he is now telling any lies when he says that she told him she was 16 and that in effect she was sexually experienced.
There were two other witnesses called by the prosecution during the trial, AFH and SBZ, both of whom had given s 93A statements and pre-recorded evidence in the trial proceedings. AFH says he told the defendant in the car on the way to the train station that LTC was 15. In his evidence, AFH also referred to various telephone conversations which had occurred in making arrangements for the night. In those conversations, he says LTC was asked if she would “root Troy” and that LTC had also said she was 15.
The defendant denies the conversations with AFH in the car about LTC’s age. LTC denied any conversation regarding her age with anyone and SBZ was not asked any questions about that matter. Both SBZ and LTC deny any conversations about LTC’s preparedness to root Troy.
There are numerous inconsistencies in the evidence of AFH, SBZ and LTC. Those inconsistencies extend to the actual departure from the care house by SBZ and LTC and what happened when they later returned home, to the conversations which occurred leading up to the night, to whether LTC came to the window whilst in the bedroom or whether LTC was crying after coming out of the bedroom and whether LTC subsequently that night “hooked up” with AFH at the house or in the car on the way home.
I did not find AFH or SBZ to be compelling witnesses of truth. They both did not strike me as careful witnesses, and in the case of AFH, I did not consider that he was keen to be helpful or keen to tell the truth. Accordingly, I did not find the evidence of AFH on the issue as to any disclosure of LTC’s age to the defendant or on any other matter to be believable.
Assessing all the evidence, I am inclined to believe it is more probable than not that the conversations as described by the defendant as to LTC’s age and sexual experience took place, though I also believe that LTC was flirtatious towards the defendant and the defendant was keen to have sex with the complainant that night and that he did not think much about the truth or otherwise of the answers given by LTC to any questions asked.
Assessing all the evidence, in terms of the two questions I have been asked to determine, I am unable to find on the balance of probabilities that the complainant did not tell the defendant her age or that she was sexually experienced.
I will now hear submissions from the parties as to the appropriate sentence based on these factual findings.
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