R v Flood

[1994] QCA 275

IN THE COURT OF APPEAL  [1994] QCA 275

SUPREME COURT OF QUEENSLAND

C.A. 159 of 1994

Brisbane

[R. v. Flood]

T H E    Q U E E N

v.

RICHARD ALLAN FLOOD

(Appellant)

McPherson JA

Pincus JA

Williams J

Judgment delivered 03/08/1994

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ALLOWED, SENTENCE OF 2 YEARS IMPRISONMENT SET ASIDE AND IN LIEU THEREOF ORDER THAT APPELLANT BE IMPRISONED FOR 12 MONTHS TO DATE FROM 29 MARCH 1994.

CATCHWORDS:CRIMINAL - convicted indecent dealing with girl under 16 years - acquitted two charges of rape - verdicts not inconsistent - verdict not unsafe and unsatisfactory because of vagueness of complainant's evidence as to date of offences.

SENTENCE - appellant aged 42 years, girl aged 15½ years - previous criminal history but no similar - place finger in vagina - sentence 2 years imprisonment set aside - in lieu 12 months imprisonment.

Counsel:     Herbert QC for the appellant
             Byrne QC for the respondent

Solicitors:   Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing date: 27 July 1994

JUDGMENT OF THE COURT

Judgment delivered 03/08/1994

After a trial in the District Court, the appellant was convicted on one count of unlawfully and indecently dealing with a child under the age of 16 years, but acquitted of two charges of rape; the same girl was involved in each of the three charges.  He was sentenced to two years imprisonment.  The appellant appeals against the conviction on the ground that the verdict was unsafe and unsatisfactory for specified reasons, and he also seeks leave to appeal against the sentence on the ground that it is manifestly excessive.
     The total time frame referred to in the charges as they appeared on the indictment was the period from 31 October 1992 to 5 January 1993.  At that time, the appellant was aged 42 years and the complainant girl aged 15½ years.  They had first met when the complainant was aged about 12 years; she was then competing in cross-country athletics with the appellant's son who was of comparable age.  The appellant also had a mowing business and from about the end of 1990, the complainant helped him out from time to time in that business in return for pocket money.  Further, the evidence suggested, though somewhat vaguely, that from time to time the complainant went out shopping at night with the appellant.  It appears that the appellant became friendly with the complainant's parents, and they approved of their daughter's association with the appellant in the ways indicated.  As time passed, the complainant became more friendly with the appellant's son who was of comparable age and interested in much the same sort of activities as she was.
     It was against that background that the events giving rise to the charges occurred.  The complainant placed the first incident, which gave rise to the first rape count and the indecent dealing charge, as occurring about the beginning of November 1992.  The appellant came to the complainant's home, and after some discussion with her parents, she went out with him in his motor vehicle for the purpose of picking up some money, apparently due with respect to the mowing business.  According to the evidence, the appellant drove to a bushland area and stopped the car.  It was dark.  There he asked the complainant to have sex with him and according to her evidence she said, "No".  They were sitting beside each other in the front seat of the motor vehicle and the appellant placed his hand on the inside of her thigh and then moved it up inside the loose leg of her shorts.  Eventually, he inserted his finger into her vagina.  That constituted the count of indecent dealing. 
     Such touching occurred for a brief period, and there was some conversation which was only vaguely recounted in the evidence.  Thereafter, the complainant girl got into the back seat of the motor vehicle and she said that intercourse took place.  She explained her apparent co-operation in the intercourse by saying that she acted through fear.  The fear, and what allegedly gave rise to it, was not clearly established by the evidence.  That act of intercourse was the basis of the first count of rape.
     The indictment alleged that the second act of intercourse constituting rape occurred on "a date unknown between the Thirty‑first day of December 1992 and the fifth day of January 1993".  The complainant's evidence was that this incident occurred "after Christmas, just after the New Year".  She said that the appellant came to her parent's house at night time and that after some conversation, she went out with him in his red utility.  The evidence is that the vehicle was driven to an isolated spot where intercourse took place on the front seat of the utility.  The complainant's evidence was that she said, "No", but, as with the first incident, her other conduct indicated at least acquiescence in the sexual activity.  Again, she explained her conduct as being the product of fear, but it was not in any way particularised. 
     After discussion with counsel, the learned trial Judge determined not to put an alternative count of unlawful carnal knowledge with a girl under the age of 16 to the jury with respect to each of the rape counts.  After the jury had retired to consider their verdict, they asked for a redirection on the following question:

"There was a question of law, I think you would call it.  We would like to know if carnal knowledge of a child under 16 - does that automatically constitute rape, independent of whether consent is given or not?"

The learned trial Judge then redirected the jury on the element of consent in a rape charge, and again, with the concurrence of counsel, decided not to leave the alternative verdict to the jury.  Verdicts were then returned as indicated above. 
     The first ground on which it is submitted on behalf of appellant that the verdict is unsafe and unsatisfactory is that the verdicts were "logically inconsistent".  That is clearly not so.  There were, of course, a number of bases on which the jury could have arrived at a verdict of not guilty on each of the rape charges.  They may not have been satisfied that the prosecution had proved beyond reasonable doubt the absence of consent; or they may not have been satisfied beyond reasonable doubt that there was intercourse in the sense of penetration.  Given the request for redirection, it seems more likely than not that they were satisfied that intercourse took place; on that basis their verdicts are more readily explicable as being based on the issue of consent. 
     Neither consent nor penetration was in issue so far as the indecent dealing charge was concerned, and in consequence there is no logical inconsistency between the verdicts; indeed, as counsel for the respondent submitted, there is "a clear rational basis for the different results". 
     The second reason for submitting that the verdict is unsafe and unsatisfactory is based on evidence more particularly relevant to the second count of rape.  Reference has already been made to the complainant's evidence-in-chief as to when that act of intercourse occurred. 
     As noted above, the complainant referred to the incident occurring in the appellant's red utility.  Other evidence established that that vehicle was traded in by the appellant on the afternoon of 4 January 1993. 
     Against the background of what the complainant said in evidence-in-chief, the following cross-examination occurred:

". . . We'll move on now to this second incident.  You said in evidence that it was in the first few days of January? -- Yes.

What do you mean by a few? -- It was a couple of days after the new year.

. . .

And you say this happened a couple of days after the First? -- Yes.

Are you able to nominate a day?  For example, Tuesday, Wednesday, Thursday? -- No.

. . .

What about a date? -- No.

Well I suggest that at the committal proceedings, September last year, you were asked if you could pin a time to when the second incident is supposed to have occurred, and you suggested that it was a about a week after the First.  I'll just read you the question and the answer. 'Ok, let's get to January 1993.  When was it that he came over and asked you to go for a drive?' Answer, 'Beginning of January'.  Question, 'What date? New Year's Day is the First?'  You said, 'Yeah'.  'When after that?' Your answer was, 'About a week later'.  Question, 'About a week later, so the 8th'.  Answer, 'I'm not sure'.  Now, do you agree that was the question and those were the answers that you gave at that point? -- Yes.

Then you were asked, 'I want you to think about this.  You've been raped by somebody in January 1993, Michelle.  That is something I would suggest to you would stand out in your mind, OK?  You would agree with that?'  You answered, 'Yeah'.  Question, 'Think about when it is that it occurred in January in relation to, say, New Year's Day?'  You answered, 'About the 5th'.  Question, 'About the 5th.  Could it have been before? Could it have been after the 5th?'  'Could it have been ---'  Then you were interrupted, another question.  'You don't know, do you?'  You said, 'No'.  Question, 'You don't know what day it was?'  You said, 'It was a weekend, I think.'  Now do you agree those were the questions and the answers that were given by you? -- Yes.

. . .

Well, in September you are suggesting that it was the first Friday after New Year's Day.  Do you agree with that? -- Yeah.

And you went from being the 8th to the 5th? -- I think so, yeah.

Do you agree you've never, ever suggested it was anytime before the 5th of January? -- No.

. . .

You say that he turned up some time on a Friday, but certainly the Friday after 1 January? -- Yes.

I would just like you to have a look at this diary and see on the right-hand side of the page there is a calendar for 1993; do you see that there? -- Yep.

Now, 1 January, what day was that? -- Friday.

You are saying that it was the Friday after 1 January? - Yeah.

What date is that? - 4th - no, the 8th.

So you say that was the day that you got taken out in the utility? -- Somewhere around there, yeah."

It should be noted that the trial took place on 28 March 1994.
     The contention on behalf of the appellant is that he could not have been guilty of any act of intercourse with or without consent after 4 January 1993, because after that date he no longer had possession of the vehicle referred to by the complainant in her evidence.  It was then submitted that the complainant's evidence was that the second act of intercourse occurred after 5 January and in consequence her evidence was so inherently unreliable that the verdict of guilty on the indecent dealing charge could not be supported having regard to the whole of the evidence.
     At most it can be said that the evidence of the complainant displayed a discrepancy in recollection as to the precise date on which the second incident occurred.  There is really nothing surprising in that when it is remembered that she was giving evidence over twelve months after the event.  It is, of course, possible that the verdict of "not guilty" on the second rape charge resulted from the jury not being satisfied with the complainant's evidence as to the date and circumstances in which the incident occurred.  But even if that was the basis on which that verdict was reached, it does not necessarily follow that her evidence as what occurred on the first occasion must be rejected. There is no challenge at all by experienced senior counsel who appeared for the appellant to any part of the summing up.  The jury were clearly given all appropriate warnings and directed to all appropriate issues with respect to the credibility of the complainant.  In all of the circumstances, any unreliability stemming from her inability to give an accurate date for the second act of intercourse, does not necessarily impugn her credibility with respect to evidence relating to the first episode. 
     Having regard to the whole of the evidence, the verdict of guilty on the indecent dealing charge is not unsafe and unsatisfactory.
     When sentencing, the learned trial Judge referred to the fact that the appellant was "placed in a position of trust by the parents of the complainant" and went on to say that he had "abused that trust in a very serious way".  He then said:

"The disparity between your age and that of the complainant makes this case a very bad example of the offence".

It must also be said that the appellant had quite an extensive criminal record, though it contained no convictions for an offence of a sexual nature.  There are numerous convictions, commencing in June 1964, for false pretences and other offences analogous to or involving stealing.  On a number of occasions sentences involving a short period of imprisonment had been imposed, and on many occasions he had been placed on a recognisance to be of good behaviour.  In 1975 he was sentenced to imprisonment for twelve months, and in 1982 he had been imprisoned on a number of false pretences charges for a period of two years with a non‑parole period of eight months.  One of his last previous convictions was in February 1991 for stealing; he was fined $600.
     It is important to remember in this case, that the appellant is being sentenced for an isolated act of indecent dealing, involving placing his finger in the complainant's vagina.  A reading of the record, and the remarks of the sentencing Judge, gives rise to the suspicion that his Honour was influenced in fixing penalty by the consideration that there was some wider sexual relationship between the two, involving intercourse.  It may well be, as noted above, that the jury were satisfied that intercourse had taken place on two occasions when, to the knowledge of the appellant, the girl was under 16 years.  But as the alternative verdict was not put to the jury, the appellant was only to be sentenced for the offence of indecent dealing involving the circumstances particularised above. 
     Though there is an age discrepancy between the appellant and the complainant, the latter's age, 15½ years at the time of the offence, was clearly such that this could not be said to be one of the worst examples of this type of offence.
     Further, though there was an element of breach of trust involved, there was no specific special relationship, and again the complainant's age diminished the significance of that.  There is clear evidence, some coming from the girl herself, that at the time she was contemplating becoming sexually active, and on one view of the evidence her conduct with the appellant reflected that.
     In determining what is an appropriate sentence in this case, regard must be had to the appellant's bad criminal history.  Whilst is does not contain any convictions for sexual offences, it does demonstrate a lack of regard for the law and a propensity to anti-social behaviour.
     Having regard to all relevant matters, the conclusion must be reached that the sentence imposed was manifestly excessive.  In the circumstances, the sentence imposed should be set aside and in lieu thereof it should be ordered that the appellant be imprisoned for a period of twelve months to date from 29 March 1994.
     The appeal against conviction should be dismissed.  The application for leave to appeal against sentence should be allowed, the sentence of two years imposed by the District Court should be set aside, and in lieu thereof it should be ordered that the appellant be imprisoned for a period of twelve months to date from 29 March 1994.