R v Fagone
[2008] VSCA 175
•19 September 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 465 of 2007
| THE QUEEN |
| v |
| ROBERT FAGONE |
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JUDGES: | ASHLEY and NEAVE JJA and MANDIE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 August 2008 | |
DATE OF JUDGMENT: | 19 September 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 175 | |
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Criminal law – Conviction – Sexual penetration of female under the age of 16 - Whether evidence of drug possession and use by applicant should have been excluded as irrelevant, or because its probative force was outweighed by its potential for prejudice - Whether evidence had prejudicial impact - Whether misdirection by failure to direct as to relevance of intoxication to applicant’s belief concerning complainant’s age - Whether failure of adequate direction as to applicant’s belief, on reasonable grounds, that complainant was aged 16, or older – Whether failure of adequate direction as to prior inconsistent statements – Application for leave to appeal against conviction refused.
Criminal law - Sentence – Relevance of applicant’s mental illness to general and specific deterrence and to burden of imprisonment - Whether sentencing judge failed to take applicant’s mental illness into account – Whether evidence of deterioration in applicant’s mental condition since sentence – Whether individual sentences, order for cumulation, total effective sentence and non-parole period manifestly excessive - Application for leave to rely upon further evidence and application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr S Johns | Victoria Legal Aid |
ASHLEY JA:
Robert Fagone, the applicant, was presented in the County Court on four counts, namely that on 20 January 2006 he –
-raped LB (count 1);[1]
-took part in an act of sexual penetration with LB, a female then aged under 16 (count 2);[2]
-had in his possession a drug of dependence, cannabis (count 3);[3]
-had in his possession a drug of dependence, amphetamine (count 4).[4]
[1]Crimes Act 1958 (Vic) s 38(1), maximum penalty 25 years’ imprisonment.
[2]Crimes Act 1958 (Vic) s 45(1), maximum penalty 10 years’ imprisonment.
[3]Drugs, Poisons & Controlled Substances Act 1981 (Vic), s73(1)(a), maximum penalty 5 penalty units.
[4]Drugs, Poisons & Controlled Substances Act 1981 s73(1)(b), maximum 30 penalty units and/or 1 years’ imprisonment.
He pleaded guilty to counts 3 and 4 and stood his trial on counts 1 and 2. He was acquitted on count 1 but found guilty on count 2.
After a plea, the applicant was sentenced on 19 December 2007 to 20 months’ imprisonment on count 2, a fine of $400 on count 3, and 4 months’ imprisonment on count 4. The learned judge cumulated 2 months of the sentence on count 4 on the sentence on count 2. The total effective sentence was 22 months’ imprisonment. His Honour fixed a non-parole period of 12 months’ imprisonment, and made consequential orders.
Now the applicant seeks leave to appeal against both conviction on count 2 and sentence generally - but in essence focussing upon sentence imposed on counts 2 and 4. The grounds upon which he does so in respect of conviction are as follows:
1.The trial miscarried by reason of the learned Judge’s inadequate direction regarding prior inconsistent statements;
Particulars
(a)Prior inconsistent statements were central to the jury’s assessment of the Appellant’s belief as to age and its reasonableness;
(b)The Judge did not identify these key inconsistencies when giving his direction;
(c)The direction was inadequate in the circumstances of the case.
2.The trial miscarried by reason of the learned judge permitting into evidence the Appellant’s illicit drug use, possession and supply.
Particulars
(a)The evidence of the Appellant’s illicit drug possession was irrelevant to the issues in the trial and thus inadmissible, or alternatively;
(b)The evidence ought to have been subject to discretionary exclusion on the basis that its probative value was outweighed by its prejudicial effect.
3.The trial miscarried by reason of the learned Judge failing to direct the jury as to intoxication.
4.The trial miscarried as a result of the learned Judge’s inadequate and unbalanced directions regarding Count 2 particularly having regard to:
(a)The brevity with which the elements of Count 2 were dealt with;
(b)The confusing manner in which the onus of proof regarding the Appellant’s stated belief was addressed;
(c)The learned Judge summarising the Prosecution case regarding the reasonableness of the stated belief in a manner which made it unclear whether he was reciting the Prosecution case or making comment himself.
5.The trial miscarried by reason of the aggregate of some or all of the errors and matters the subject of Grounds 1 to 4.
The grounds of his application with respect to sentence are these:
1.The learned sentencing Judge erred in failing to moderate the sentence due to the Applicant’s ongoing psychiatric condition;
Particulars
(a)The Judge erred in failing to moderate the sentence due to a finding that the Applicant’s moral culpability was reduced;
(b)The Judge erred in failing to moderate the principle of general deterrence;
(c)The Judge erred in failing to determine that a period of imprisonment would be more onerous for the Applicant because of his psychiatric condition than for a person of sound mind; and failing to moderate the sentence accordingly.
2.The learned sentencing Judge erred by imposing a sentence that in all the circumstances of the case was manifestly excessive in that:
(a)The individual sentences on Counts 2 and 4 were manifestly excessive;
(b)The total effective sentence imposed was manifestly excessive;
(c)The non-parole period imposed was manifestly excessive.
3.The order for cumulation made in respect of two months of the sentence imposed on Count 4 reflected error in the application of the totality principle.
4.The sentencing discretion ought be re-opened due to fresh evidence regarding the significant deterioration of the Applicant’s mental state whilst in custody.
Circumstances
The broad circumstances of the alleged offending – I will descend to more detail when dealing with particular grounds of the conviction application – were as follows.
The applicant, a man born on 6 April 1974, was aged 31 at the time of the alleged offending.
The complainant, a woman born on 30 October 1991, was aged 14 at the relevant time. She has a mild intellectual disability.
On 19 January 2006 the complainant attended the home of VR, a friend and a girl of similar age. Also present was HR, the slightly younger sister of the complainant’s friend. In the evening, others came to the house including VR’s boyfriend JG, JG’s older brother GG, and the applicant.
It emerged in cross-examination of VR that she had wanted GG to attend, telling him that there would be several girls there who were 18. On GG’s account of the conversation, VR put a name to one, but not both, of those girls.
The applicant brought cannabis and a mixture which he said contained ‘speed’ and ‘ice’. Over a period of a few hours the applicant and others including the complainant, VR, HR, GG and a woman named KC smoked cannabis and drank alcohol.
There were comings and goings. Some of the guests left the gathering permanently. Others, including GG and the applicant, left but returned.
It became clear enough in the course of evidence, despite the complainant’s denials, that the applicant invited the complainant to have sex with him.[5] It was a matter of controversy whether the complainant had accepted the applicant’s invitation.
[5]On one account, he also asked if he could perform cunnilingus upon her.
The tone of the evening, other than as I have already described it, can be gauged from other circumstances of which evidence was given.[6] First - it seems to have been at a stage after the applicant issued his invitation to the complainant to have sex with him – the complainant and VR engaged in ‘dirty dancing’ in the course of which they rubbed against each other and VR pulled down the claimant’s top to reveal one or both breasts.[7] Second, VR announced to GG and the applicant that the complainant was ‘fucking her’ (that is, VR’s) boyfriend JG. Third, there was evidence that at one stage – there was a controversy about both the occurrence and the timing of this incident – the applicant invited the complainant, VR and JG to have ‘a foursome’.
[6]This is not to say that the evidence about these matters was all to the one effect.
[7]The complainant may also have done the same thing with VR’s top.
Something about the complainant’s state of mind during the evening in question was disclosed by the circumstance that she had gone to VR’s home after fighting with her mother. During the evening the police attended VR’s home. They were told that the complainant would not go home because her mother had been bashing her.
In the early hours of 20 January 2006, the complainant and VR went to sleep in VR’s bed. Later, the applicant entered the room and climbed onto the bed. It was controversial whether, when he did so, both the complainant and VR were then present. On the complainant’s account, VR got up and left the room. On VR’s account, she left the room after the applicant had climbed onto them.
It was uncontroversial that the applicant lifted the claimant’s skirt and pulled down her underwear. It was also uncontroversial that he removed his underwear, and that he penetrated her vagina with his penis.
It was controversial whether the complainant consented to have intercourse.[8] That was the issue which particularly required the jury’s consideration on count 1.
[8]Giving ‘consent’ the content specified by the Crimes Act.
The complainant gave an account, by VATE interview, of absence of consent, and of actions by her, which unequivocally demonstrated absence of consent. The latter included evidence that she had been held down by the wrists, that she had screamed, that she had bitten the applicant, and that she had been greatly distressed after the incident, as must have been obvious to others. She denied having been asked to have sex by the applicant, and having refused.
There was plainly evidence, adduced from the complainant in cross-examination, and adduced from other witnesses, which raised at least a reasonable doubt upon the issue of consent and upon the issue, if there was no consent, whether the applicant was aware that the complainant was not consenting or might not be consenting. It included evidence that the complainant’s initial account had simply been that she had sex with a man, this having evolved into an allegation of rape after an angry meeting with her family. It included also absence of any apparent injury to the complainant’s wrists, or any injury to the applicant. Again, it included evidence that another person had looked into the bedroom whilst the complainant and applicant were having intercourse, and that the other person had heard nothing to raise the alarm. Again, accounts of the complainant’s demeanour subsequent to the event were other than as she described them. Finally, but not least in importance, the relevant material included the applicant’s account, given in a record of interview, that he had invited the complainant to have sex with him, and that she had agreed.
Upon the second count, there being no dispute that intercourse had occurred, and it being the fact the complainant was under 16 years of age, the controversy was whether the Crown had negatived, beyond reasonable doubt, the applicant’s assertion that he believed, on reasonable grounds that the complainant was 16 or older.
Evidence which plainly or potentially pertained to that issue included:
(1)What VR allegedly said to GG about the presence of girls who were 18.
(2)What the applicant said he was told by GG about the presence of girls who were 18.
(3)The applicant’s state of mind as to the complainant’s age, as asserted in his record of interview. Largely, at least, it went back to what he said GG had told him.
(4)The circumstance that - because she had referred to others being of that age – VR evidently was not aged 18. Why then should her friend be thought to be 18?
(5)The complainant’s appearance at the time.[9]
(6)The statement by VR – if it was made – that the complainant was having sex with JG. The applicant claimed to have heard such a statement.
[9]The jury viewed the VATE tape. A photograph was put in evidence. There was also evidence which suggested that the complainant had been wearing some make-up on the night in question; and there was evidence of how she had been dressed on the particular occasion.
The conviction application
Ground 2
I will deal with the grounds in the order in which they were orally addressed by the applicant’s counsel, beginning with ground 2.
Evidence about drugs was given at trial by a number of witnesses – the complainant, VR, HR, GG, CC and the applicant (by his record of interview).
The complainant gave evidence of the applicant and GG being in the kitchen ‘having ice’. She was the only witness to suggest that anyone other than the applicant had used that drug.
VR gave evidence that she thought the applicant brought marijuana to the premises. It was used by a number of the party goers. She also said that the applicant brought ‘ice’ and ‘speed’, which he and no one else smoked in a ‘crack pipe’. He had brought the pipe with him.
HR gave evidence of the applicant smoking marijuana with a ‘bong’, and of him smoking ‘speed’ in a ‘crack pipe’. He alone used the crack pipe.
GG gave evidence of use of ‘marijuana’ by ‘everyone’. The applicant had it. The applicant also took speed, through a crack pipe.
LC gave evidence that, she was not sure who was smoking the crack pipe, but ‘like they brought that’. There was general use of marijuana: ‘we were sitting down smoking dope all night.’
The applicant stated, in his record of interview which was admitted at trial, that he brought marijuana and speed to the party. He smoked a little bit of speed, and some marijuana. A few of them – that is, those at the party, used bongs (he did not specify what had been used). He stated also that ‘they’ – he seems to have been referring to VR and others - ‘had their own’.
Counsel for the applicant submitted in this Court that the learned trial judge should have excluded evidence that the applicant brought drugs to the party. He did not contend that the judge should have excluded evidence of drug use by the applicant and others when at the party. Indeed, he relied upon his client’s use of drugs in support of ground 3. So, with respect to ground 2, his submission was less broad than the ground as formulated.
Counsel argued that the impugned evidence was irrelevant, or else that its prejudicial effect outweighed any probative value it might have had. He identified the prejudice as the impact of evidence that the applicant had not only brought drugs to the party, but had also produced a ‘crack pipe’. Such evidence, he submitted, was prejudicial in that it implied his client’s bad character. It was not evidence that was ‘intimately associated’ with the subject matter at trial, and it could easily have been excised, without prejudice to the Crown case.
The error in permitting that evidence to be adduced, counsel submitted, was exacerbated in that the judge did not direct the jury how it could be used.
Counsel noted that objection had been taken at the outset of the trial to the reception of evidence relating to his client’s drug use. But there had been no ruling. All that the learned judge had done was to take his client’s guilty pleas on counts 3 and 4 in the absence of the jury; and, in the charge, to refer to drug use as a matter that should not be allowed to create prejudice against the applicant so as to detract from an intellectual examination of the evidence.
For the respondent, counsel submitted that it had not been made clear at trial what applicant’s counsel was seeking. But in any event the impugned evidence was inextricably linked to the entire transaction. It formed part of the res gestae. It would have been unreal to try to excise it. Further than that, it had not been suggested in the evidence that the applicant had sought to force others to use drugs. That was relevant to the evaluation of prejudice against the applicant. Again, the judge’s directions had been adequate, no exception had been taken, and in acquitting the applicant on count 1 the jury had showed that it had not treated the applicant’s role in bringing drugs to the home, and using them, in a prejudicial way.
There was, in my opinion, some force to the contention that evidence that the applicant brought drugs to the party should have been excluded for want of relevance; or else because the prejudicial impact of such evidence outweighed any probative force it might have. Particularly that is so in respect of the ‘ice’ and ‘speed’ which – on the applicant’s account – he brought to the party; and which, according to the general tenor of the evidence, he alone used. It was one thing to adduce evidence that marijuana was available, and was used generally, at the party. Indeed, the burden of the evidence was that marijuana was available, and being used, even before the applicant arrived. That said, it was another thing to adduce evidence that the applicant brought the marijuana to the party; and it was still another thing to adduce evidence that the applicant brought ‘ice’ and ‘speed’ to the party, which he alone used.
I accept – it was in substance conceded for the applicant – that evidence of the first of those matters was admissible, in the circumstances of the case, as part of the narrative, just as was evidence of generalised use of alcohol by those present. But I doubt the relevance of evidence of the second kind; and I have greater doubt about the relevance of evidence of the third kind.
Unfortunately, the issue formulated in this Court was not precisely articulated at trial. I read counsel’s submission below as having been that all reference to drug use should be excised, as ‘serv[ing] no purpose apart from prejudice’.
It is, perhaps, unfortunate also that the judge did not seek the assistance of counsel for the Crown about the issue which had been raised. On the other hand, that submission did not invite analysis of the different aspects of the evidence pertaining to drug possession and use; and it is speculative that anything said by the prosecutor would have illuminated the differences.
As it appears, the learned judge did not rule upon the submission which had been advanced. All that is known about his Honour’s view, in the event, is to be found in his observation that the argument that the jury should not be told that the applicant was pleading guilty to counts 3 and 4 – with which he agreed - was separate from -
[an] argument concerning whether there should be a reference in the evidence to the claim that the [applicant] introduced drugs to the group of young people who were in the house.
And in his further observation that, whilst evidence about drug use could easily be excised from a trial about rape
… isn’t it important for the jury to know the atmosphere in which these offences are alleged to have occurred? This was the interaction between the parties leading up to what is obviously disputed consent. This is so very intimately associated with the events about which the trial will revolve.
The first observation, it must be said, did not accurately state the Crown case. As counsel for the applicant submitted below, it was not the Crown case either that the complainant was affected by (illegal) drugs or alcohol at the time of the incident, or that the applicant had seduced the complainant by the use of drugs.
The second observation, as a general statement, was unexceptional. But - no doubt because counsel’s submission had not done so - it did not differentiate between evidence of the three kinds which I have identified.
In the event, it is arguable that evidence was admitted - particularly of the third kind which I have identified – which should not have been admitted.
The issue of admissibility having been dealt with in a global way, and by necessary implication having been rejected, it is unsurprising that the applicant’s trial counsel did not then object to the reception of evidence of the three kinds which I have identified. It is also unsurprising that he did not press for a specific direction about the particular evidence, but was content with the standard ‘intellectual exercise’ direction. Moreover when some evidence had been admitted which, as I perceive it, was irrelevant, it is difficult to know what direction might have been given – except, perhaps, a direction that the evidence was irrelevant and that it should be ignored. Such a direction, by identifying particular evidence, was unlikely to have worked in the applicant’s favour.
Acknowledging that some of the evidence pertaining to drugs possession and use might have been excluded had a different submission been made at trial, the course of the trial, including final submissions and the judge’s charge, does not suggest that what might have been excluded assumed any distinct importance.
The prosecutor made fleeting reference to drugs. He invited the jury, in effect, to conclude that the ‘talk about drugs and alcohol’ had no bearing on the issues which the jury needed to decide.
Counsel for the applicant made a similar submission, although in respect of the reliability of evidence he invited the jury to consider whether the evidence of witnesses ‘might have been affected by substances they’ve been using’; and, pointing to evidence that there had been marijuana at the premises before the applicant’s arrival he submitted that ‘it can’t be said that somehow [the applicant is] corrupting people by bringing drugs to the house for the first time’.
Again, the judge in his charge made some reference to drugs use - in his ‘intellectual exercise’ direction, and in reciting evidence given by various witnesses. He did not highlight that aspect of the evidence relating to drug possession and use which, as I see it, might have been excluded.
Against that background, I consider that the submission of counsel for the Crown in this Court that receipt of evidence which might have been excluded demonstrably had no prejudicial impact was persuasive. The submission rested on the applicant’s acquittal on count 1. Whilst it might be argued that the jury found the applicant guilty on count 2, and that it might not have done so but for the impact of the impugned evidence, that seems a fairly long bow in light of the way that the whole question of drug possession and use was addressed by counsel in their final addresses, and by the judge in his charge.
Ground 3
Counsel submitted, evidence having been admitted of alcohol and other drug use, that such evidence was relevant to the question of the applicant’s belief on reasonable grounds as to the complainant’s age. The question for the jury’s consideration had been whether in all the circumstances the Crown had excluded the possibility that the applicant believed on reasonable grounds that the complainant was aged over 16. The circumstances included the fact that the applicant had used illegal drugs. Therefore, the judge should have given a direction as to the effect of intoxication upon the applicant.
In my opinion there is no substance to this ground. It lacks a factual foundation.
There was evidence that the applicant had used cannabis and ‘speed’ in the course of the evening. But on his account he used those drugs in a very moderate way. Further, he gave an account of how the sexual affair had developed, and as to why he had believed the complainant to be of full age, which carried no implication that he had been affected by drug use. Further still, he stated in his record of interview that he did not drink alcohol. So on his account, and I do not think that there was evidence to the contrary, alcohol could have been of no relevance.
The absence of any factual foundation for the ground now pursued was implicit in the observation of applicant’s counsel, at the outset of the trial, that –intoxication is not an issue in this trial, either for the accused and his knowledge, or the complainant and that it is not that either of them were intoxicated.
It was submitted for the applicant in this Court that those observations were made at a stage when trial counsel was seeking the excision of evidence relating to drug use, and that they could not be transposed to the situation when the evidence of drug and alcohol use was let in. I agree with the first part of that submission; but not the second. If intoxication by drugs or alcohol was irrelevant to belief in the applicant’s age, it was irrelevant whether the evidence was admitted or excluded.
Intoxication was evidently perceived by trial counsel to be a non-issue. He did not seek a direction as to the possible relevance of intoxication in formation of belief. He did not take exception to the charge, in which the learned judge had said nothing about intoxication. Failure to seek a direction or to take an exception is not decisive on appeal; but it may suggest that an alleged defect consisting of non-direction or misdirection, identified on appeal, was insubstantial. In my opinion, that can definitely be said in this instance.
I should add that the present matter bears no resemblance to cases such as Stokes & Difford[10] and R v Faure.[11] There, the failure of the trial judge to direct as to the possible impact of intoxication upon formation of the requisite criminal intent was fatal to conviction – although defence counsel had not raised the matter – because there was evidence which rendered intoxication and its significance a live issue.
Ground 4
[10](1990) 51 A Crim R 25.
[11](1999) 2 VR 537.
Counsel for the applicant submitted that the trial had been dominated by the count of rape. In the event, the judge had given directions in respect of count 2 which had been inadequate and confusing. The latter description applied to what his Honour said in relation to the onus of proof. Further, relevant evidence had not been identified. The credibility of Crown witnesses had been in issue. Their credibility bore upon the credibility of the applicant’s account. But the judge had not identified problems with the credibility of Crown witnesses. Again, the judge had recapitulated argument advanced for the Crown in a way which suggested that it was his comment; and he had not told the jury that there was no evidence that the applicant knew the complainant’s true age.
Counsel for the respondent submitted that the charge was sufficient, and that there was no basis for concluding that the jury would have been confused as to the elements of count 2, in particular the onus of proof. Whatever complaint might be made about the charge, counsel had stated the position correctly in their final addresses.
Counsel further submitted that the jury would have understood that, at one point in his charge pertaining to count 2, the judge had been summarising the prosecution case, rather than making a comment of his own; and it would have been apparent to the jury that there was no evidence that the applicant knew the complainant to be aged 14. Again, counsel relied upon the fact that no exception had been taken to the charge in respect of count 2.
The charge was pertinently as follows:
The second count before you is one of sexual penetration. The difference between the two counts here is, in this context, not always, but in this context, is the question of consent. As you know, the law is that sexual penetration without consent in any circumstance is a criminal offence and it is the offence of rape which is alleged in count 1. That is the primary count that is put before you.
The second count – the difference, in this case, not always but in this case, the difference between count 1 and count 2 is the question of consent. The law is, as I am sure you appreciate, that’s sexual contact or sexual activity and certainly act of sexual penetration with children under the age of 16 is illegal. The accused man was aged 31. There are no circumstances in which sexual contact between a 31 year old man and a 14 year old girl is legal. It is a criminal offence to have sexual activity with a 14 year old girl for someone of his age. That is what alleged in count 2 and if you look at each of the elements that emerge from the terminology of the charge, you will see that each of these elements is not in dispute in this case. “The Director of Public Prosecutions further presents that Roberto Fagone, at Coolaroo, in the said State, on 20 January 2006, took part in an act of sexual penetration” – penile penetration of the vagina is obviously sexual penetration – “with [the complainant], a person under the age of 16.” It is common ground that she was under the age of 16 and I will mention her date of birth when I get to her evidence. She was 14. “And to whom he was not married.” Those words simply reflect the legislation. They are ridiculous in the context but that has to be included in the charge. “In that he introduced his penis into her vagina.” That is admitted here. Each of those matters is admitted.
That does not mean that the accused man is conceding – I want to hand to you an extract from the legislation which is under consideration here. The offence alleged in count 2 is a product of section 45(1) of the Crimes Act. It is pretty simple. Section 45(1) reads, as you can see, a person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence. That is this offence alleged here. The factor under consideration in this count is what emerges from section 45(4) which is reproduced for your purposes. “Consent is not a defence to a charge under sub-s. 1 unless at the time of the alleged offence the child was aged 10 or older, she was 14, and the only operative part for your consideration here, “The accused believed on reasonable grounds that the child was aged 16 or older.” That is the issue for you in respect of count 2. Did the accused believe on reasonable grounds that [the complainant] was aged 16 or older.
It is a defence to this charge for an accused person, provided the child is over 10, for an accused person to believe on reasonable grounds that the child was aged 16 or older. The complication is that once that issue emerges, and it has here, it emerged in the accused’s interview, quite clearly, when he said he thought she was older. Once that issue emerges, the onus is on the prosecution to negative it to the standard of beyond reasonable doubt.
The Crown must negative the belief on reasonable grounds that the accused thought that she was 16 or older, and you will recall [the Prosecutor} going into factors why he had no basis foe believing, it is contended, that she was 16 or older. I will come to that in a moment and briefly mention the way the prosecution case was put.
On the other hand, [Counsel], on behalf of the accused, said, recalled to you the conversation that brought the accused and his friend George to the house on the night in question, it was claimed that they had been told that there were 18 year old girls. Nothing had been said to him to disabuse him of that fact and there were in fact 17 or 18 year old girls there but not [the complainant], but he had no reason to think that she was not one of the 18 year olds who were mentioned in the phone call. He said as much to the investigating policeman when interviewed shortly after the vents. [The Prosecutor] said, “Look at her” and says to you that you should be satisfied beyond reasonable doubt that he had no belief on reasonable grounds that she was 16 or older. “All you have got to do is look at her.” That is why the photographs were taken and why those photographs are before you. You have seem her, she was in fact 14, not long 14, I think she turned 14 in October the previous year, this was January last year. He must have known, anyone must have known or had no reasonable basis for thinking that she was aged 16 or older. Any information communicated via the phone before he arrived at the house was general information and was not a basis for reasonably believing that she was aged – for believing on reasonable grounds that she was aged older than 16.
The direction as to onus was not very satisfactory. A lawyer with a knowledge of the criminal law would understand what was meant by it being said that the prosecutor carried an onus to negative, to the criminal standard of beyond reasonable doubt, a belief on reasonable grounds that the complainant was 16 or older; but, so expressed, it seems to me to be a difficult concept for a lay person to grasp. Moreover, his Honour then converted proof of a negative into proof of a positive, it being undefined except for the inapposite reference to ‘like all other elements of the offence’.
The prosecutor, in my opinion, put the matter better when she submitted:
What this comes down to, members of the jury, is whether the Crown has [proved] beyond reasonable doubt that the accused man did not believe, on reasonable grounds, that [the complainant] was over the age of 16.
Much the same thing was submitted by counsel for the applicant:
In the second count, the sexual penetration count, it’s whether the Crown can prove that he didn’t have reasonable grounds for believing that she was over 16.
And
The only evidence is about the conversations [VR] had with George and Robert says George told him, and his belief was that she was 18.
Maybe you mightn’t accept that he believed she was 18, but that doesn’t matter. What the Crown has to prove is that he didn’t believe on reasonable grounds that she was over 16 in circumstances where he’s heard, you might think, [VR] say that she saw [the complainant] having sex with [JG], and all the other behaviour in the household, [the complainant] behaving in a pretty adult fashion, drinking, smoking a bit, dancing provocatively, sexually in the loungeroom, and having a conversation with him, getting his sympathy, and they go off together.
When you look at all the evidence about Robert’s state of mind, you must have a reasonable doubt at the end of the day because there’s just an absence of evidence to the contrary of what he says.
It cannot be said that what I have described as a ‘not very satisfactory’ aspect of the charge was a misdirection. But there is a question whether it was sufficient to equip the jury to perform its task. In that connection, counsel’s failure to take exception tends against a conclusion favourable to the applicant. On the other hand, in this instance failure to take exception could not sensibly be categorised as a forensic decision. Again, the fact that counsel, let it be assumed, had expressed the onus in correct and preferable terms could not relieve his Honour of the obligation to give a correct and adequate direction with the weight of his authority.
Not without hesitation, I consider that the impugned direction was adequate, and was not such as to mislead. Whilst it is definitely not a form of direction which should preferably be given, I consider that the jury would have understood, in the light of the arguments of counsel – to which the judge briefly referred – that it was for the Crown to prove beyond reasonable doubt that the applicant did not believe on reasonable grounds that the complainant was aged 16 or older.
That takes me to the submission for the applicant that the judge did not identify the evidence, importantly raising issues of credibility, which bore upon resolution of the question of belief.
It is the case that, immediately following his direction, the judge gave an abbreviated account of the matters relied upon by the applicant. He did not identify, however, evidence - other than the applicant’s exculpatory account in his record of interview – which the applicant called in aid at trial. Thus he did not refer to certain evidence given by VR which, according to the submission of applicant’s counsel, had included false denials and internal inconsistencies; and to evidence of HR which was said to have the same qualities. On the other hand, the judge also gave an abbreviated account of two circumstances upon which the Crown relied.
I do not agree with the submission that the charge, so far as it descended to the circumstances upon which the Crown and the applicant relied[12] was unbalanced. It was generally spare.
[12]His Honour also said a little about the competing submissions when briefly recapitulating counsel’s arguments.
Neither do I agree with the submission that the form of his Honour’s charge was such as might have led the jury to think that what was a recapitulation of a submission made by the prosecutor was instead a comment by the judge.
I do agree, however, with the submission that his Honour might have assisted the jury more by identifying the potentially pertinent evidence with greater specificity, and by doing so in a way that illuminated its apparent strengths and weaknesses. But this had been a short trial, and both the evidence and counsel’s addresses must have been in the forefront of the jury’s minds. To hold that something more must have been said would be to impose an altogether too heavy burden on trial judges.
In the event, I would reject ground 4.
Ground 1
Counsel for the applicant correctly submitted that what is required by way of a prior inconsistent statements direction will depend on the case.[13] Here ‘a direction of sorts’ had been belatedly given. But it had been inadequate, particularly when so much had turned on the credibility of Crown witnesses – the complainant, VR and HR. The direction had not addressed the many inconsistencies in their evidence, which in turn bore upon assessment of the credibility of the applicant’s account.
[13]Compare R v Schmahl [1965] VR 745,748 (Winneke CJ), R v Salih [2005] VSCA 282, [43] (Harper AJA), and R v Mark and anor [2006] VSCA 251, [26] (Maxwell P].
When counsel was pressed, it became clear that almost all of the alleged inconsistencies were not prior inconsistent statements at all. Rather, they were internal contradictions in the viva voce evidence of particular witnesses, and inconsistencies between the evidence of Crown witnesses. There were a multiplicity of inconsistencies of those two kinds. I have referred to some of them in the course of these reasons. In particular, the evidence of the complainant, VR and HR about the course of events culminating in the conduct the subject of count 1 was neither internally consistent nor consistent one with the other. But, in the end, counsel was only able to identify one prior inconsistent statement; and even in that instance the witness – HR - had arguably conceded the accuracy of the out of court statement, which had to do with the complainant wearing some make-up on the night in question.
It is unnecessary to set out the text of the pertinent direction. It was short, but accurate so far as it went. Whilst it did not identify any particular alleged inconsistency, I am unable to agree, given the circumstances, that it was deficient.
Ground 5
Although I have expressed some reservations about the way in which the issues raised by grounds 2 and 4 were dealt with at trial, I am not persuaded that the circumstances which I have described entitle a conclusion that ground 5 has been made out.
The sentence appeal
Grounds 1 and 4
The applicant was first diagnosed as suffering from psychotic illness in 1993. Described as a ‘schizoaffective disorder’,[14] its course has been complicated by polysubstance abuse, lack of insight, and reluctance or refusal to take medication. It is a long-term disorder. Between 1993 and time of sentence, the applicant had been hospitalised some 20 times - though only twice since the end of 1999.
[14]And, in a report by Dr Kevin Ong, to which I will later refer, as ‘chronic paranoid schizophrenia’.
In reliance upon R v Tsiaras[15] and R v Verdins,[16] counsel for the applicant submitted on the plea that general and specific deterrence should be moderated as sentencing considerations in light of his client’s mental illness. He made no submission about reduced moral culpability, or about prison being more burdensome for his client because of that illness.
[15][1996] 1 VR 398.
[16](2007) 16 VR 269
Before us, however, counsel principally relied upon the last-mentioned consideration in arguing that sentence had not been moderated by reason of the applicant’s mental illness.
Counsel’s submissions concerning ground 1 closely connected with an application that the Court receive further evidence on the appeal, being two reports of Dr Kevin Ong, consultant psychiatrist at Thomas Embling Hospital. The Court heard argument about the content of those reports, and the basis for their receipt. It reserved its decision whether they should be received, this bearing upon ground 4.
It is necessary to say a little about the reports in order to understand the competing submissions.. Dated 25 July and 1 August 2008, they show that the applicant was admitted to Thomas Embling Hospital on 14 May 2008 because of a relapse in his psychotic condition; and that he remained there at the time of the second report, his medication then undergoing change.
Counsel for the applicant submitted that the reports cast new light upon a circumstance known to the sentencing judge – that is, the applicant’s mental illness. They showed a deterioration in his condition, and that prison had become the more burdensome for him. Deterioration was evidenced by his admission to Thomas Embling Hospital. Imprisonment had become more burdensome because, accepting that the applicant was being better treated there, he was deprived of the opportunity of engaging in prison programs which are available to the general prison population.
Counsel for the Crown opposed receipt of the reports. He submitted that they showed only the consequences, predictable at time of plea, of the applicant’s failure to take medication.
In dealing with both grounds 1 and 4, it is necessary to note what the learned judge below said about the applicant’s mental illness. Thus:
You were educated to year 12 level and you had then a series of jobs, some of them in family businesses over a period of time. However, you have been largely but not completely unemployed since 1993 when a psychotic illness developed.
The complication in your ongoing psychiatric condition has been your refusal to refrain from substance abuse, which, according to Dr McArdle, has made your recovery very difficult. Indeed, it would appear that the many relapses that have occurred since 1993 have been largely related to your substance abuse and your refusal to comply with prescribed medication.
In it unclear from Dr McArdle’s report whether the original condition was a consequence of your substance abuse or that came after the event. I have been told by [your counsel] it was the latter and I accept that for the present purposes.
Nevertheless, it is clear from Dr McArdle’s report and what was said by your counsel that the difficult history that you have had between 1993 and the present time has been very closely linked to your ongoing substance abuse, in particular your cannabis and amphetamine abuse, and its effect on you and your refusal or inability, whatever it is, to wean yourself from those drugs.
Dr McArdle also makes it clear that the medication that he is able to provide for you and which you get through him and through what he described as a mobile support and treatment team does assist. It is not as effective as it might be because of your reluctance to take anti-psychotic medication, but it does help.
It is not clear from his report, but I was told by [your counsel], that the reason you are non-compliant is because of the side effects. That is not apparent from Dr McArdle’s report. In any event, it is obvious that your ongoing substance abuse has played a large part in your ongoing psychiatric condition. You have largely been unemployed since it developed. You have had many admissions to hospital. However, the most recent is in 2004. Nevertheless, it is common ground that your condition is ongoing and is liable to recur at any time.
Your mental condition has been emphasised by [your counsel] in the course of the plea. Is it one of a number of mitigating features that he relied upon.
It is clear that his Honour recognised the risk of relapse in the applicant’s mental illness. The existence of such a risk was at the very least implicit in the report of Dr Matthew McArdle, consultant psychiatrist, which was admitted on the plea. Dr Ong’s reports, if received, would show that the risk had become the reality; but not that there had been an unexpected deterioration in the applicant’s condition, this ‘throw[ing] a different light on circumstances which existed at the time of sentence’.[17]
[17]R v WEF [1998] 2 VR 385, 388 – 389 (Winneke P)
It may be said that Dr Ong’s reports also show the consequences of relapse – that is, admission to Thomas Embling Hospital. From that may be extrapolated the argument that they cast new light on a circumstance known at trial – by showing that relapse has meant removal to a secure psychiatric hospital, and deprivation of the opportunity to engage in prisoner programs.
But I do not consider that the circumstances just mentioned justify receipt of the reports. Removal of a prisoner with florid psychotic illness to Thomas Embling Hospital was very predictable, as the experienced judge in this case would surely have known. Further, there was no material before this Court, as I apprehend it, that prisoners at Thomas Embling Hospital cannot engage in programs akin to those which are available in prisons generally.
In the event, I would not receive the reports, and ground 4 should fail.
That leaves for consideration the question whether the learned judge failed to moderate sentence by reason of the applicant’s mental illness. I have no doubt that he should have done so. In my opinion, the illness was relevant to the significance attaching to both general and specific deterrence; and it was relevant, particularly with the risk of relapse, to the burden of imprisonment for this man.
It is unfortunate that the basis mainly urged before us for taking account of the illness was not ventilated at trial. It is also unfortunate that his Honour did not say, in as many words, that he had brought the illness to account in the applicant’s favour, if that is what he did; and that he did not say in what way or ways he had done so.
But the question remains whether it has been demonstrated that the judge failed to take the illness into account in the sentence which he passed. I am unable to conclude that he did so. To my mind, the sentence imposed count 2, the order for cumulation, the total effective sentence and the non-parole period were such as to indicate that all relevant sentencing considerations must have been given due weight.
Counsel for the applicant submitted that his client’s mental illness should have been recognised by the setting of a very low non-parole period. Had this been done, control of the applicant’s mental disorder, when returned to the community, could have been superintended by Forensicare for a longer period of time. Whether or not the judge would have been moved by that submission, had it been put to him, in fact he set a relatively short non-parole period. It is difficult to think, all things considered, that it could have been any shorter.
Thus far I have said nothing about the sentence passed on count 4. Counsel submitted that it was impermissibly harsh, and that this had a flow-on effect upon the total effective sentence and non-parole period.
Although the submission was advanced in the context of ground 2, it could be used to support the argument on ground 1. But I do not consider that it was made out in either context. The sentence was quite stern for possession of what was apparently a quite small quantity of amphetamine. But there was the aggravating circumstance that the applicant took the drug to a party attended by much younger people. They were likely to be impressionable, notwithstanding their apparent worldliness. He used it in their presence.
Grounds 2 and 3
Counsel argued that the sentence on count 1 was impermissibly high. I do not agree. I consider that it reflects due allowance for all relevant considerations. They included the applicant’s mental state and a number of other mitigating factors; and they included also the circumstances of the offence, committed by a much older man upon a youthful complainant. Counsel submitted that the judge should have sentenced the applicant on the basis that the complainant had consented to intercourse. Assuming the correctness of that submission, it does not follow from his sentence that his Honour did not do so.
Counsel also submitted, as I have previously noted, that the sentence on count 4 was impermissibly harsh. As indicated, I reject that submission.
Counsel submitted that the order for cumulation was excessive, and that this was one reason why the total effective sentence was manifestly excessive. I do not agree. The circumstances of count 4 were distinct from the circumstances of count 2. Some cumulation was permissible. The extent of cumulation was relatively small. Another judge might have ordered a month of cumulation, rather than two. But that does not make out the complaint.
Neither do I accept the submission that the non-parole period which the learned judge fixed was manifestly excessive. As I have already remarked, it was in fact a relatively low proportion of the total effective sentence.
Orders
I would refuse the application for leave to appeal against conviction, the application for leave to rely upon further evidence, and the application for leave to appeal against sentence.
NEAVE JA:
I agree, for the reasons given by Ashley JA, that the application for leave to appeal against conviction and the application for leave to appeal against sentence should be refused.
MANDIE AJA:
I also agree with Ashley JA.
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