R v Estrada
[2000] VSCA 90
•15 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 120 of 1999
| THE QUEEN |
| v |
| OSCAR ORLANDO ESTRADA |
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JUDGES: | PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 May 2000 | |
DATE OF JUDGMENT: | 15 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 90 | |
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Criminal law – Conviction for attempted rape – Application for leave to appeal against conviction on ground of unsafe and unsatisfactory verdict – Application for leave to appeal against sentence alleging manifestly excessive sentence and failure to give proper weight to rehabilitation prospects and personal circumstances – Both applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. P.A. Coghlan, Q.C. | P. C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | In person |
PHILLIPS, C.J. (delivering the judgment of the Court):
Estrada, you were originally charged in the County Court at Melbourne with four offences. They were a charge of indecent assault, a charge of rape allegedly by penetrating a young woman's vagina with your finger and a second count of rape allegedly by penetrating her anus with your finger or fingers. The jury found you not guilty of each of those charges but convicted you on a fourth charge of attempting to rape the young woman by introducing your penis or finger into her anus. All these alleged offences were said to have been committed at Richmond on 2 December 1997. The young woman (whom I shall refer to as the complainant) was a little over 16 years of age at the time, and you are 42 years of age.
After hearing from your counsel, the judge sentenced you to be imprisoned for four years and his Honour fixed a non-parole period of two years and three months. You had no prior convictions. You later lodged a notice of application for leave to appeal against your conviction, claiming that it was an unsafe and unsatisfactory verdict. You also lodged a similar notice as to your sentence, claiming that it was manifestly excessive and that the judge did not give sufficient weight to your prospects of rehabilitation and your personal circumstances.
The evidence presented at your trial must be well known to you but I shall give a short summary. The prosecution called the complainant and two other girls that I shall call LH and LT, who were aged 15 and 14 respectively. You met them late in the evening of 1 December 1997 on a train going to Flinders Street station. The girls were in care and were out for the evening without permission. You were asked for a cigarette by them and conversation began. They agreed to go out for a drink with you. In the city you went to a hotel and bought a bottle of bourbon whisky and a bottle of vodka. It was agreed that they would go with you to your home in East Richmond. Apparently they then had no other place to go. Alcohol was consumed by all of you there. The complainant, who was on Prozac medication at the time, drank rather a lot. You also supplied cannabis which the complainant and others smoked. By early on 2 December the complainant was severely affected so that she could barely stand up. At about this time she spilt alcohol on her stockinged legs and, according to her, you proceeded to lick it off her leg. This incident formed the basis of the first charge of indecent assault of which the jury found you not guilty. The complainant claimed that somewhat later you took her stockings and underpants down to her knees. She said she kept trying to pull them up but you kept pulling them down. She alleged you touched her on the vagina and bottom and put your finger into her vagina. This was the basis for the second charge of which the jury also found you not guilty. Still later, according to the complainant, you put your finger slightly into her anus. This formed the basis of the third charge of which the jury also found you not guilty. The fourth alleged offence was said by the complainant to have occurred after you took her bra off, poured alcohol down her throat and made verbal and physical sexual advances. She said she was assisted by you to go to the toilet and after she came from it she said abuse recommenced and, after touching her in various places, you attempted to put your penis in her anus. She said it touched her anus but did not penetrate it. This was the basis of the fourth charge, on which the jury convicted you.
According to the complainant, after a short sleep she went into the street and, as it happened, the police were driving past and they became involved. A Constable Turner was called by the Crown and said that about 2.30 a.m. she saw the complainant, who was very hysterical and who complained that you had started kissing her, covered her mouth so that she could not scream, made her perform oral sex on you, and that you had inserted your fingers into her vagina and anus. The complainant was later examined by a Dr Harry, to whom she made similar complaints, but he found no physical evidence of trauma. Still later, a forensic examination did not reveal any DNA material linking you to her, nor were her items of underwear damaged.
You were interviewed by the police on the same day and you denied any improper touching of the complainant or that there had been any improper sexual contact between the two of you. You did say, however, that you had put your arm around her. At the trial you did not give evidence and you did not call any evidence in your defence.
This Court has noted that, in addition to what you have said today (and I shall come to that in a moment), your counsel submitted to the judge that he should find that the offence of which you were convicted involved an attempted penetration by your finger. Later the judge accepted this submission. Your counsel also submitted that alcohol and drugs had played a substantial role in the episode but that the judge should not be satisfied you had gone out of your way to ply the girls with alcohol. He described them as seasoned or experienced in relation to alcohol and cannabis. Your counsel also submitted that the judge should not be satisfied that there was any elaborate degree of planning in your activities. The judge was also informed of your age and your background and family circumstances. Your counsel informed him that you were just a social drinker. Your counsel accepted that you must receive a custodial sentence but asked for it to be wholly suspended, and he explained to the judge that he was unable, because they were not then in Australia, to call some character witnesses for you.
Being unrepresented, you addressed this Court and you said that the Crown changed their position from the very beginning, and you were referring there to amendments that were made from time to time to the charges on the charge sheet alleged against you. This, you said, was unsatisfactory. You said that there had been another person present with the complainant when she gave her evidence by video-link and that this was visible on the video. This person, you said, was living with the complainant as a care worker at the time she gave her evidence and you raised the question of what influence this person might have had upon the witness outside the court room. One of the girl witnesses, you said, did not tell the truth about the amount she had to drink; in fact she had had a lot more than she admitted. The complainant, you said, had sworn at the preliminary hearing that she had taken no drugs before meeting you on the train, but it had come out at the trial that she had taken Prozac before she met you. You denied the truth of the girls' evidence that you gave them alcohol; you said that they "grabbed" alcohol from you. You pointed out that in the train the girls had opened conversation with you, asking for a cigarette. You said that they also asked you for money for their fares and you believed that this circumstance had been brought out at your trial. You said that you gave them what you called "a McDonalds" after they had told you that they were hungry. You said that after you explained to the girls that you had to meet a friend at a hotel, they suggested that they accompany you. You pointed out that they said to you that they had no place to stay and you declared you then offered them your home "with a good heart". You also pointed out that the state of the undamaged underwear of the complainant was inconsistent with the tug of war over it that she described in her evidence. You argued that as she agreed she had gone to the toilet, she could have then run away if she was so minded and was being attacked as she claimed. You also said that she had said from the toilet that she was okay. Generally you submitted that there was just not enough evidence, or not enough evidence of sufficient quality, to justify the conviction you sustained.
As to the sentence passed on you, you said that you had never been in any prior trouble with the law. You said you had a good record at work, often working at two or three jobs. You said that the judge did not give enough weight to your being alone in this country without anyone to visit you in prison, and that he did not fully understand and give weight to the difficulties not experienced by other prisoners that you will have in serving your sentence. Finally you declared that you were innocent of the charge on which you were convicted and that the witnesses who had supplied the evidence against you for that conviction were being untruthful.
Mr Coghlan for the Crown submitted that all the matters raised by you had been, in one way or another, satisfactorily dealt with at the trial. In particular, he said that the amendments to the charge sheet had been thoroughly discussed between the judge and counsel before any decisions were made as to that. Inconsistencies, he pointed out, that had occurred in the complainant's evidence were fully dealt with by the judge when he was addressing the jury. As to your complaint about the person present with the complainant when she gave her evidence, Mr Coghlan took the Court to those parts of the Act of Parliament which governs that procedure, and he pointed out there was no requirement in the Act of Parliament for the person present with the witness to be totally independent of that witness. He also pointed out that the judge at the trial had directed arrangements so as to remove the possibility of eye contact between the person present and the witness. In reply you said that the police had taken a variety of samples from you, which you mentioned, and they were hair, etc., and that none of these samples upon analysis advanced the prosecution's case of attempted rape.
At this point I must explain to you the nature of these proceedings and the Court's duties according to the law. You must understand, as to your conviction, that this is not a re-trial. You must on the contrary show that some error attended your trial which would justify the Court intervening and setting your conviction aside, or, as you have principally pleaded, you can contend that the evidence was simply not sufficient to justify the jury's verdict either in quantity or in quality.
The Court has given consideration to your submissions regarding your conviction, but we are of the view that we should uphold the submission of Mr Coghlan that all the matters you have raised today were dealt with satisfactorily at your trial. We have also looked at the evidence generally, read the transcript of the trial and heard from counsel representing the Crown, who must be independent in this matter, that there is no reason that he can see, in the evidence at the trial or what happened between the judge and the jury and the counsel, which would justify this Court intervening.
I will mention in particular the presence of the person with the complainant when she gave her evidence. We do not accept that there is a necessity for an entirely independent person to be so present. I will also mention the matter of your submission that the Crown changed its position at the start. We would also accept that proper applications were made for amendments to the charge sheet from time to time. They were discussed between counsel and the judge and the judge gave regular rulings in relation to them.
Accordingly, having considered the matter generally in addition to the matters you raised today, we are unable to see any reason why the Court should intervene in relation to your conviction.
I will now turn to your sentence, and again similar considerations apply. The law does not permit the Court to consider afresh today the sentence that should be passed on you. On the contrary, it is for you to show that some error attended the formulation of it in the court below. Either the judge took something into account that he should not have, or failed to take something into account that he should have - things like that - and, generally speaking, it is for you to show not that this Court might impose some other sentence but that the one that was imposed on you fell altogether outside the range of those that were available to the judge.
It seems to us that the judge took into account each of the matters that were put forward on your behalf. You have urged us today, as indeed you urged the judge, to take the view that you acted in good heart, as you put it. But the judge refused to accept that, you will recall. He said that in his view you acted in a predatory way. This Court must look at the evidence and simply ask, was it open to the judge to reach that conclusion, and we have to say to you that it was. We think you have not shown that your sentence fell outside the range of those that were reasonably available to the judge, and we do not think there is any substance in your contention that the judge did not pay sufficient weight to your rehabilitation or to the somewhat harsher circumstances under which you will have to serve your sentence. The evidence as to that is the non-parole period that was actually fixed of two years and three months, which I should tell you is somewhat lower than what one would expect in a more orthodox case.
So I must tell you, as to your sentence, again the Court is not in a position to assist you, and both your applications will have to be dismissed.
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