R v Fratus - [2012] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v FRATUS
[2012] SADC 56
Reasons for Ruling of His Honour Judge Tilmouth
26 April 2012
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Defendant pleaded guilty to four counts of unlawful sexual intercourse representative of a wider course of conduct. The prosecution alleged the relationship was accompanied by aggravating circumstances.
Held 1: For the most part alleged aggravating circumstances not proven on the evidence.
Held 2: Evidence of discreditable conduct falling short of criminal conduct is not relevant to proof of aggravating circumstances.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Anderson v The Queen (1993) 177 CLR 520; Olbrich v The Queen (1999) 199 CLR 270; R v Lobban (2001) 80 SASR 550; (2001) 126 A Crim R 468; Anderson v The Queen (1993) 177 CLR 520, 67 A Crim R 582; R v Lobban (2001) 80 SASR 550, (2001) 126 A Crim R 468; R v Murray (1987) 11 NSWLR 12; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, referred to.
The Queen v De Simoni (1981) 147 CLR 383; R v White (1981) 28 SASR 9; R v Hunt (1977) 15 SASR 476; R v Turney (1990) 52 SASR 438, applied.
R v Bukvic (2010) 107 SASR 405, distinguished.

R v FRATUS
[2012] SADC 56
The issues

The defendant pleaded guilty in April 2011 to four counts of unlawful sexual intercourse with a child of the age of 15 and 16 years, committed between August 2002 and December 2003. At the same time the prosecution entered a nolle prosequi with respect to two assaults causing harm, allegedly committed in 2003. The complainant was the same girl in respect of all charges.
Following the preparation of a pre-sentence report, differences emerged between the prosecution and defence as to the factual basis upon which the defendant was to be sentenced. These reasons deal with those areas of dispute, which centre upon the nature of the relationship between the complainant and the defendant. In sum it is alleged that a long standing relationship involving repeated sexual intercourse was accompanied by a degree of violence by the defendant towards the complainant. There is also an allegation that he would tell others that she was 17 years old.
Background
There is no doubt that they commenced a ‘consensual’ sexual relationship during the latter part of 2002 in Canberra lasting around five months. At the time the complainant was aged 15 (dob 22/04/1987) and the defendant was aged 25 (dob 20/07/1977). Both came from dysfunctional backgrounds and both had at various times lived on the streets of Canberra. When they first met the defendant was living in an Hostel. Soon afterwards he obtained work and as a consequence secured rental accommodation of his own. The complainant, as young as she was, had already accumulated a considerable degree of sexual experience with other men, at least one of about the same age as the defendant.[1] There was no evidence at all that there was any process of grooming by the defendant as is so often the case. On both accounts the relationship was a wholly ‘voluntary’ one, so far as that can be for a girl of her age.
[1] T39.31-.38
The charges
The four counts to which the defendant has confessed his guilt represent a course of conduct involving regular penile/vaginal intercourse with the complainant over a one-two week period in 2002 whilst they were on holiday in South Australia,[2] and between January 2003 and 4 October 2003 when the complainant followed the defendant to Adelaide from Canberra. The evidence was that they had intercourse ‘hundreds of times … from a couple of times a day to once every one or two weeks’.[3] The complainant said that during 2003 she would have stayed at the defendant’s place of residence ‘possibly 30 times or so’.[4]
[2]    T38.3-.4, T117.11-118.16
[3]    T17.13 -.17
[4]    T23.10
The Information of 18 April 2011 contains four counts of unlawful sexual intercourse, the first between 1 July 2002 and 31 August 2002 at Gepps Cross when she was ‘of the age of 15 years’, the second at O’Sullivans Beach between February and June 2003 when the complainant was said to be ‘about’ 16 years of age, the third at Plympton during the 2003 calendar year and the fourth during the same period at Maslins Beach.
There was some evidence from the complainant that relations resumed for a short period between late March and early May 2004 in Brisbane and that there was a one-off sexual encounter sometime in 2007 in Canberra, but these are not pursued by the prosecution and therefore warrant no further consideration.[5] It appears that the complainant initially reported the earlier incidents in October 2003 but then decided not to proceed to have the defendant charged, and later changed her mind,[6] however neither counsel sought to explore this issue.
[5] T166.8-167.18
[6] T99.24, T104.22-106.5
There is no doubting that sexual intercourse occurred on a regular basis in the two periods referred to. These were preceded by a similar relationship in Canberra between early June 2002 and 17 October 2002. For this period the defendant pleaded guilty to a single but representative charge of having sexual intercourse with a person under the age of 16 years, for which he was sentenced in the Supreme Court of the Australian Capital Territory on 17 June 2010 to a suspended term of imprisonment of 9 months.
Count 1 occurred at Gepps Cross during a motoring holiday in a parking bay adjacent to Main North Road and which the defendant freely admitted.[7] The second occurring at O’Sullivans Beach was admitted by the defendant, however certain attributes of this encounter were not. The complainant gave evidence that intercourse occurred during April 2003 at the steering wheel of a car ‘whilst I stayed on top of him while he drove down to the lower car park … just did it like that the whole way …’.[8] She described intercourse continuing after the car stopped, when it ‘started hurting … I was okay … it wasn’t until afterwards … like the pain started to hit me’.[9] As to the pain she described it was ‘like his penis was hitting like, I didn’t know … like banging something …’[10] but she could not remember saying anything about it or reacting at the time.[11] She sought no medical attention afterwards although a friend assisted with a herbal remedy. She described this occasion as being unusual ‘just that it was deeper inside’.[12]
[7]    T119.15–120.5
[8]    T23.28 -.33
[9]    T24.14-.17
[10] T24.18-.27
[11] T24.35-.38
[12] T27.38–28.2
The third count took place at some unspecified time in 2003 at Plympton. This was at the home of an acquaintance of the defendant’s, whom he would visit from time to time to take a shower during a homeless period. He freely admitted having vaginal sexual intercourse with her on this as well as the other occasions.[13] No attendant aggravating feature is alleged with respect to this charge.
[13] T114.24-.33, T118.5-.26, T120.29–121.14
The final allegation to which the defendant pleaded guilty occurred in 2003 at Maslins Beach. The evidence of the complainant was that this occurred in a house belonging to a friend of the accused. Sexual intercourse is admitted to have taken place in a ‘granny flat’ or ‘sleep out’ rented by the accused for a period of about a month at Maslins Beach.[14] Once again there is no compounding allegation relating to this incident.
[14] T121.18-.36
Uncharged acts
Counts 5 and 6 as originally charged, related to an incident at Maslins Beach during 2003 following an argument which developed earlier between the complainant and the defendant at the Noarlunga Centre. This resulted in him driving off with her mobile phone still in his car. She travelled by bus to his flat at Maslins Beach looking for him and saw the phone through a window. He was not there. She admitted during her evidence, despite earlier statements to the police to the contrary, that she broke into the flat to retrieve the phone.[15]
[15] T75.23–76.30
Not long after the defendant confronted her at a nearby bus stop about breaking into his home which led to a physical exchange. The defendant accused her of breaking into his home during which she alleges he hit her with his fists about the arms, shoulders and head 10 or 15 times.[16] On both accounts later that afternoon she returned to the unit despite what happened at the bus stop needing ‘somewhere to stay’ trying to persuade him to allow her to do so. Her description of this incident was:[17]
… so I sat down under the pergola area, … and he had come out several times … and I would try to talk him into letting me stay and he said ‘No’. … So I was finally getting angry because he wouldn’t change his mind, so I said ‘You don’t care about anyone but yourself’, so that’s when he stormed outside and came around to the front of me and put his hands around my neck … and then next thing I remember is waking up but I couldn’t open my eyes and I was shaking and I like couldn’t control it, my body, and than I was laying on the floor, … when I woke up, and he had let go of my neck, … and he ended up letting my stay the night inside on the floor without a blanket and I think through the night he ended up getting me a blanket because I got cold. The next day he was dropping me off to Noarlunga because I was going to go and find a refuge to stay …
[16] T31.22–32.4
[17] T30.13-.38
These two events, what might be described as the ‘bus stop’ and the ‘pergola’ incidents, led to the respective charges of assault causing harm, under s 20(4) Criminal Law Consolidation Act 1935 (SA), which carries a maximum penalty of three years imprisonment. Since these occurred during 2003 and since they are only punishable as summary offences, they were according to the prosecution out of time by the time the Information of 11 April 2009 was presented.[18] Hence the nolle prosequi. For his part the defendant admitted grabbing her handbag and her arms at the bus stop, and arguing with her later that afternoon and evening at his home, but he denied that it became anymore physical than that.[19]
[18] Section 52(1)(b) Summary Procedure Act 1921 (SA) 'proceedings must be commenced within 2 years of the date of the offence ...'
[19] T128.8–130.15
Other uncharged acts
Finally the complainant spoke of intercourse with the defendant in a car park near the West Terrace Cemetery. This must have been in early 2003 as it appears that it was very soon after she arrived from Canberra.[20] On this occasion the defendant inserted two fingers into her vagina. The accused admits the event and the use of his fingers which he asserts the complainant ‘actually liked’.[21] The ambit of the dispute is that this caused her pain to the extent that she wanted him to stop, an allegation denied by him:[22]
I just said it hurt and jumped up and turned around. I tried to hop off and he wouldn’t … let me … I was saying ‘Stop it’ … it’s hurting and trying to get him off … he was just pulling me down and kept going.
[20] T18.18-37, T123.21-124.19
[21] T121.19-.25, T150.27–151.20
[22] T20.18-.35
Later in evidence-in-chief she was asked:[23]
QWhat was your state of mind after that incident.
AJust thought it was like a bit too rough. I didn’t really feel much about it at the time.
[23] T221.1-.33
Apart from these incidents there were assertions that the relationship was a ‘nasty’ one, that the accused was violent and controlling … ‘he would hit me and strangle me and push me ... we would argue and he’d get angry and just starting hitting me … by punching me or backhanding me or strangling me … only once’.[24]
[24] T13.23–14.21
The evidence of the complainant was that she would be hit in this way ‘every time we fought, so every couple of weeks or something like that … on my arms, shoulders, chest, my head’.[25] From one of these she was said to have sustained bruises or injuries … ‘one time there was like on both arms from my shoulder to my elbow on each arm, all black and purple and stuff.[26] This appears to be the occasion which she showed her injuries to a doctor at a Christies Beach clinic.[27]
[25] T14.24–T16.22
[26] T16.1-.63
[27] T16.25–17.2
She also alleged a form of ‘sexual violence’ in this way:[28]
Well, when things got painful I would try and stop and he would … hold me down and keep going or one time he started hitting me during sex.
It now becomes necessary to resolve these various areas of dispute.
[28] T17.6-.83
Legal Principles
It is trite law that when imposing sentence the court may only have regard to circumstances that would not render the accused liable to greater punishment than is merited in relation to the offences charged: The Queen v De Simoni.[29] The court is not entitled to take into account offences or uncharged acts which are not broadly of the kind or of about the same gravity as those for which the defendant is to be sentenced: R v White;[30] and it cannot take into account offences lying outside its criminal jurisdiction: R v Hunt:[31]
[29] (1981) 147 CLR 383 at 389 & 392
[30] (1981) 28 SASR 9
[31] (1977) 15 SASR 476
It is an accepted principle that facts adverse to the defendant must be established beyond reasonable doubt, where as those favourable to him are to be established by him on the balance of probabilities: Anderson v The Queen,[32] R v Lobban.[33]
[32] (1993) 177 CLR 520 at 536, 67 A Crim R 582 at 594
[33] (2001) 80 SASR 550; (2001) 126 A Crim R 468 at [28]
Analysis of issues
The complainant’s evidence that up to 50 per cent of occasions involving sexual intercourse were accompanied by degrees of force or pressure of a physical kind, is difficult to accept given that intercourse occurred so regularly over such an extended period and yet except for one or two occasions there was no report. Except for the bus station incident, there is no independent evidence confirming any of this. In such circumstances the evidence must be scrutinized with great care: R v Murray.[34] Where there is no confirmation in a case of oath against oath – as this case is – and the accused’s denials are not incredible – which they are not – it is inherently difficult to reach a conclusion beyond reasonable doubt: Question of Law Reserved on Acquittal (No 1 of 1993).[35]
[34] (1987) 11 NSWLR 12 at 19
[35] (1993) 59 SASR 214 at 218
On the other hand there can be no doubt the complainant was a vulnerable, needy, dependent and susceptible young girl in general and not in a position of strength in relation to the defendant in particular, as the defendant admitted.[36] She considered him ‘my male role model and he was my security’.[37] She freely pursued the defendant to Adelaide and sought him out and she owned to ‘harassing’ him at times,[38] and that she could be manipulative for her own ends.[39]
[36] T146.27-.35
[37] T38.14
[38] T92.4-.83, T104.4-.7
[39] T38.15-.19, T104.14-.19, T103.20-.26
Under cross-examination she volunteered that she was ‘promiscuous’ and that she would deliberately ‘hurt him and that, like emotionally’.[40] Furthermore in a contemporaneous note sent to the police years later, she listed a number of ‘bad’ and ‘good’ facts in relation to ‘Donald’ (the defendant). In that note she accepted he ‘gets really hurt when I cheat on him’ and ‘he gets really worked up when we fight he hurts me because of us’.[41] Under cross-examination she admitted that she would ‘cheat on him … [to] … upset him,[42] and that she liked ‘the reaction he produced’.[43]
[40] T97.13
[41] Exhibit D5
[42] T96.36-97.3
[43] T97.33-98.13, T99.1-.9, T100.6-.22, T102.38-104.3
The O’Sullivans Beach incident
The circumstances of this occasion described by the complainant are, objectively speaking, highly improbable particularly if the car had a manual transmission as the defendant claims. Then again perhaps they are not so unusual for an experimental sexual relationship as this one was. However as the evidence unfolded, it became apparent that the complainant’s pain was very much an afterthought especially since she did not express it at the time. Applying the legal principles referred to herein, the court cannot be satisfied that it was not made known to the defendant that this was a ‘painful’ act of intercourse is proven beyond reasonable doubt.
The ‘bus shelter’ and ‘pergola’ incidents
There are two competing versions of the events. Of some significance is the fact that the complainant reported the following day to a Doctor who, as it transpires was Dr Fuller, then employed as a Senior Medical Practitioner at the Second Story Health Service in Noarlunga. Part of his statement reads:[44]
In the afternoon of 13 March 2003 I saw [the complainant]. She reported she had been assaulted the previous day. She said she had had a fight with her boyfriend. She said she was hit on the right arm and left upper arm and was strangled, with hands, from behind. She said she lost consciousness, she believes briefly. …
She said at the time of consultation she felt fine and was able to move her neck, she had no voice problems.
On examination I found no evident neck swelling or tenderness. There was normal laryngeal crepitus (normally if the larynx is moved from side to side, there is a rough or ‘crunching’ sensation, known as crepitus, felt by the examiner. The absence of that crepitus is suggestive of significant swelling around the larynx). Neurological examination revealed no abnormality of the cranial nerves; peripheral muscle activity, coordination and balance were normal. I concluded that [the complainant’s] injuries were of a minor nature, expected to settle with symptomatic treatment.
At that consultation [the complainant] reported to me her depressive symptoms … and I commenced her on an antidepressant, Zoloft, at 50mg daily.
[44] Tender T84.16-85.9
Of course this statement is not admissible in any respect as ‘complaint evidence’, and it is no evidence at all in proof of the underlying allegations of assault or of being strangled. It is however admissible and relevant to prove the date of those events – 12 March 2003 – and as original evidence of the injuries that were, and the injuries that were not, seen on her body. In addition to this statement counsel agreed the following facts, apparently derived from the clinical notes which were subpoenaed into court but not tendered:[45]
Ms Manning attended Dr Fuller on 13 March 2003, reporting that she was hit on the right arm and left upper arm, there were bruises sighted by Dr Fuller on her right arm and left upper arm … there were no injuries sighted by Dr Mark Fuller on 13 March 2003 that corroborates strangulation.
[45] T85.10-85.38
This combined evidence leads to the inference that there is confirmation by way of bruising about the arms consistent with the complainant’s evidence as to the bus stop incident but that, despite ‘significant swelling around the larynx’ there was no evidence supportive of strangulation. In those circumstances the court concludes that it is proven beyond reasonable doubt that a physical exchange occurred at the bus stop going beyond grabbing by the defendant,[46] to such an extent that it was serious enough to report to a Doctor and to cause bruising to both arms. On the other hand the evidence falls far short of proving strangulation as alleged.
[46] T128.8-.17, T140.7-.12
Even so these events sprang from an argument begun earlier that day. This had nothing to do, on the evidence, with the nature of the sexual relationship between them. It emerged as a rather episodic exchange, the product of a particular situation and a particular grievance, for her part the taking of the mobile phone and for his part breaking into his home. In any case as Gibbs CJ expressed matters in The Queen v DeSimonim,[47] ‘no-one should be punished for an offence of which he has not been convicted’.
[47] Above at 389
Cemetery incident

When it comes to the uncharged incident near the cemetery, the reaction of the complainant demonstrates that it was hardly a situation the accused would have noticed. There was nothing out of the ordinary in relation to this event especially in the context of an admittedly adventurous sexual relationship, so that the court is left far from satisfied that anything more than vigorous intercourse occurred.
Shielding the age of consent
The complainant’s evidence was that the accused told people and her ‘to say I’m 17 if they asked’.[48] There was only one occasion she specifically remembers this happening in Adelaide.[49] This is denied by him.[50] He made admissions during the course of the proceedings in the Australian Capital Territory on 17 June 2010 during sentencing submissions by way of agreed facts ‘the accused would introduce her as his girlfriend and being 17 years of age’.[51] His explanation that ‘I just wanted to get this over and done with because it was costing me too much money and put a lot of strain on me and my wife …’[52] is understandable enough in general terms given the cost of travelling from Adelaide to Canberra for court hearings. On the other hand this explanation fails to account for the specific admissions on the topic when he was legally represented.
[48] T37.28-.37
[49] T37.38.-38.7
[50] T142.37-43.25
[51] Exhibit D3, p4 .19-.20
[52] T134.32-.34
In any case it is the very type of thing he would say or have her say if the circumstances warranted it, given that she was 16 for the greater part of her time in Adelaide. On that footing the court finds the one occasion identified by the complainant is proven, as is the fact that he was ready to make the assertion as to her age on occasions when he considered the situation warranted it.
This finding advances matters not much further than the tacit situation already inherent in their relationship, because he would hardly go about telling people she was only 15 or 16 (as the case may be) and moreover by his words and conduct he would be clearly warranting that she was of the age of consent.
General relationship
There were other allegations about issues lying outside the realm of the charges. The accused admitted he had difficulty at times with anger management and he might lose control, sometimes manifesting itself in violence leading on one occasions to taking her phone and smashing it and grabbing her on two or three occasions, perhaps twice a week on average.[53]
[53] T137.5-138.139.28
This evidence is relevant to their general relationship. Otherwise evidence falling short of criminal conduct is simply not admissible. King CJ said this of such evidence in R v Turney:[54]
I think that there are dangers in extending the exclusionary rule beyond the area of evidence disclosing the commission of a criminal offence or a disposition to commit a criminal offence. In our plural society, what is discreditable may be a matter upon which opinions differ. This is particularly true in sexual matters. If the rule were so extended, I think that the blurring of the criteria for exclusion, and therefore for admissibility, which presents such a problem to trial judges under the present rule, would become even more pronounced. I think, moreover, that such an extension is unnecessary.
[54] (1990) 52 SASR 438 at 441
Other evidence of a more diffuse kind was also led by the prosecution, for example that the complainant was told when to sleep, where to sit, what she could do with her hair, who she could talk to,[55] and that the defendant would take her ‘phones, break them or snap her SIM cards.[56] In my opinion these are not matters of proper inquiry relevant or even admissible in respect of the charges or the wider context, according to the principles emerging from the cases referred to above.
[55] T13.35-.36, T36.9-.14
[56] T31.7.10
Such events have no bearing on the sexual relationship and no influence on her submission to him in that respect, such as to lay a foundation for sentencing on a more serious basis than the offences otherwise warrant: R v White.[57] Likewise, evidence that may serve to prove assaults outside the ambit of sexual submission or coercion cannot be relevant either: De Simoni.[58]
[57] Above
[58] Above
It is true in R v Bukvic,[59] the Court of Criminal Appeal determined that uncharged conduct:
… could not be used so as to lead to the imposition of a greater sentence did not preclude it being used to deny the appellant any leniency which may otherwise have been possible.
That is not the position in this case. The accused admits the general relationship was permeated by its difficulties and unpleasantness. The prosecution attempts to go much further to demonstrate an ‘element of coercive or forceful behaviour on the part of the offender’: R v GP.[60] It has failed for the most part to make out a case in that respect, on grounds of relevance and because it cannot prove assaults or force specifically referable to sexual submission or coercion as aggravating features of the four charges.
[59] (2010) 107 SASR 405 at [41]
[60] (1997) 93 A Crim R 351 at 362
Conclusion
It follows from the above analysis that the sexual relationship between the complainant and the defendant was for the most part fully consensual and mutual, save for the aggravating circumstance of the marked disparity in ages (10 years). Ms Mansfield sought to equate their relative backgrounds in order to mitigate the disparity. Even if accepted, that only serves to bring them back to a ‘level playing field’ as a base from which to measure the significant difference in age.
The wider relationship was however one characterised at times by arguments and occasional pushing and shoving including the bus stop incident, not proved to arise from the context of sexual relations. The court finds that when the occasion warranted it, the defendant was prepared to represent she was 17 years of age in order to disperse any further enquiry and that he did so on one occasion in Adelaide. Otherwise the prosecution has failed to prove aggravated aspects of the Maslins, O’Sullivans beach and West Terrace incidents, save to the extent found above.
The parties should be heard as to the consequences of these findings when the matter next comes before the court on 26 April 2012. They should also consider addressing – amongst other things – what effect this hearing has (if any) on the defendant’s entitlement to a discount because of his early pleas of guilty, the delay in bringing the prosecution,[61] and how it came about that the sentencing judge in the ACT was led to believe there were no further charges pending.
[61] Refer R v Pickard [2011] SASCFC 134