R v GJB
[2002] VSCA 54
•19 April 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 4 of 2001
| THE QUEEN |
| v. |
| G.J.B. |
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JUDGES: | WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 March 2002 | |
DATE OF JUDGMENT: | 19 April 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 54 | |
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Criminal law – Offence of “maintaining a sexual relationship” with a child under the age of 16 contrary to s.47A Crimes Act 1958 – Elements of offence discussed – Difference between elements of offence before and after amendments made by Act 81 of 1997 – Presentment alleging offence against s.47A in one count, and further counts alleging substantive offences occurring within period of “relationship” which themselves could have been particulars of such relationship – Whether latter counts “alternatives” to the “relationship” count – Whether judge entitled to impose separate penalties for substantive offences alleged and to cumulate such penalties upon the punishment imposed upon the “relationship” count – Whether presentment oppressive and “abuse of process”.
Criminal law – Practice and procedure – Circumstances in which appellate court will entertain appeal against conviction in circumstances where applicant has pleaded guilty in court below.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. A. Shwartz | Victoria Legal Aid |
WINNEKE, P.:
The appellant pleaded guilty before the County Court at Melbourne on 4 December 2000 to a presentment containing five counts. All counts arose out of a sexual relationship which developed between the appellant, a 40 year old man, and a child of 13-14 years of age (whom I shall call the complainant) who was a daughter of a friend of the appellant. This sexual relationship, so the Crown alleged, extended over a period from July 1999 until 7 April 2000 when its existence was discovered by the complainant’s mother. The disparity in ages between the appellant and the complainant reveals not only that the relationship was unlawful but suggests that the conduct of the appellant was predatory in nature, and that of the complainant the product of infatuation. That assessment of the relationship is, in my view, warranted notwithstanding the love professed by each of its participants towards the other. However, this appeal is based not so much on the gravity of the appellant’s behaviour as it is upon the procedure adopted by the Crown for dealing with it.
As its first count on the presentment, the prosecution alleged the offence of “maintaining a sexual relationship” contrary to s.47A of the Crimes Act 1958. The offence was alleged to have occurred from 1 July 1999 to 7 April 2000; that is the entire period of the sexual relationship between the appellant and the complainant. The remaining counts on the presentment (namely counts 2 to 5 inclusive) alleged specific offences of “wilfully indecent act” contrary to s.47 of the Crimes Act (count 2) and acts of “unlawful sexual penetration of a child between the ages of 10 and 16” contrary to s.46 of the Crimes Act (counts 3, 4 and 5). Although the crimes alleged in counts 2, 3, 4 and 5 were said to be “specific”, those in count 3 (“digital penetration”) were also alleged to be “representative” of the acts which they charged and all charges were loosely expressed to have occurred over a period of three months; but all within the period of the sexual relationship alleged in count 1. Although the acts of “sexual penetration” alleged in counts 3, 4 and 5 were all charged as offences against s.46 of the Crimes Act, the Crown sought to differentiate them from each other by confining the offence in each count to a different type of sexual penetration. Thus count 3 alleged “digital penetration” of the vagina; count 4 alleged lingual penetration of the vagina; and count 5 alleged oral penile penetration. Each was, therefore, alleging a different form of “sexual penetration”, as defined by s.35 of the Crimes Act.
Before the sentencing judge, no objection was raised to the form of the presentment; nor was it suggested that a plea could not be taken from the appellant to each of the five counts on the presentment. The appellant in fact pleaded guilty to them all and, after hearing a plea on his behalf, the sentencing judge imposed the following sentences:
Count 1- 4 years
Count 2- 12 months
Count 3- 2 years
Count 4- 2 years
Count 5- 2 years.
The sentencing judge cumulated eight months of the sentences imposed upon each of counts 3, 4 and 5 (that is, the “sexual penetration” offences) upon the sentence of four years imposed upon count 1. The total effective sentence was therefore one of six years and his Honour ordered that the appellant serve four years before becoming eligible for parole. In accordance with the provisions of the Sentencing Act, his Honour treated the appellant for the purposes of sentencing him on counts 3, 4 and 5 as a “serious sexual offender”.
It is necessary, before turning to the grounds of appeal, to say something more about the offence alleged in count 1 – that is the offence of “maintaining a sexual relationship”. The count in fact alleged that, between 1 July 1999 and 7 April 2000, the appellant maintained a sexual relationship with the complainant, who was a child under the age of 16 to whom the appellant was not married:
“in that he took part in an act of sexual penetration with [the complainant] in that he introduced his penis into her vagina, and that such an act took place between [the appellant] and [the complainant] on at least two other occasions during that period.”
Thus the count “ties” the act of sexual penetration to acts of vaginal intercourse and thus seeks, again, to differentiate the type of penetration from that described in the specific offences alleged in counts 3, 4 and 5.
Section 47A of the Crimes Act creates an offence which is relatively new in the criminal calendar of this State. It was introduced into the Crimes Act in 1991 by the Crimes (Sexual Offences) Act of that year. Judging from the debates which accompanied the second reading of the Bill (Hansard, Legislative Assembly, 13-20 March 1991, 506-17, 652-668), the offence was introduced to overcome perceived deficiencies in criminal pleading said to have been exposed in the decision of the High Court in S. v. R. (1989) 168 C.L.R. 266, in which the young victim of repeated sexual abuse was unable to identify with precision the circumstances and occasions in and upon which the several acts had occurred[1]. However, as this Court noted in R. v. Macfie[2] the provisions of s.47A have a tendency to “cut across time honoured concepts of procedural fairness” in the administration of the criminal law which have long established that a person accused of a serious criminal offence is entitled to know with particularity the offence he is said to have committed and the occasion upon which and the circumstances in which he is said to have committed it. It is no doubt these facets of the offence which have caused it and its counterparts in other States[3], to become the subject of close scrutiny[4]. No doubt, in the desire to “bring to book” adults who have engaged, over lengthy periods, in repeated sexual defilement of children, the legislature – in creating the “relationship offence” described in s.47A of the Crimes Act – has put at potential risk one of the fundamental principles of the common law; namely the specificity with which the allegation of serious criminal conduct should be particularized and notified to the person accused. Thus, in its current form[5], s.47A(3) provides:
[1]cf. R. v. KRM (1999) 105 A.Crim.R. 437 at 439; R. v. John William Macfie [2000] VSCA 173 at [33].
[2]supra at [34].
[3]Crimes Act 1900 (ACT) s.92EA; Crimes Act 1900 (NSW) ss. 66A-EA; Criminal Code (NT) s.131A; Criminal Code (Qld) s.229B; Criminal Law Consolidated Act 1935 (SA) s.74; Criminal Code (WA) s.321A; Criminal Code (Tas) s.125A.
[4]KBT v. R. (1997) 191 C.L.R. 417; KRMv. R. (2001) 75 A.L.J.R. 550; R. v. KRM, supra (Vic. Court of Appeal); R. v. Macfie, supra.
[5]The section was amended in 1997 to take effect from 1 January 1998.
“It is not necessary to prove an act referred to in sub-section (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against sub-section (1).”
This compromise of specificity has been rendered necessary, I assume, because of the nature of the offence created. It contemplates, or may well contemplate, circumstances in which there has been, as here, a florid sexual relationship between the adult and the child in which the repeated sexual interferences will not be readily distinguishable to the child after the relationship has been terminated. Nevertheless, it is the compromise of fundamental common law principles produced by the section which has led various courts to scrutinize it with care. Thus in R. v. KRM (supra at 442), Buchanan, J.A. was moved to comment that:
“Section 47A creates an offence which may offend the sensibilities of an experienced criminal lawyer. Lack of particularity in a presentment and in proof can result in unfairness, for it largely deprives the defence of the ability to test the complainant’s evidence against the context of surrounding circumstances and, as Kirby, J. pointed out in KBT (supra at 432), it may ‘result in a trial involving little more than accusation and denial’.”
When the decision of this Court was considered in the High Court[6], McHugh, J. (at 554) noted that:
“Section 47A operates in the context of an adversary system of criminal justice where an accused person is entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear. … These particulars are needed to ensure that the accused person has a fair opportunity to defend the charge.”
His Honour went on to note that the legislature of the State (subject to Ch. III of the Constitution) might modify the need for particulars, but:
“An intention to do so should be imputed to the legislature only when it has enacted words that make its intention unmistakably clear. Courts should not lightly infer that a legislature has intended to abolish or modify fundamental principles of the common law such as the principle that an accused person must have a fair opportunity to defend a criminal charge.”
[6]KRM v. R. (2001) 75 A.L.J.R. 550.
The comments to which I have referred in the preceding paragraph were made in respect of the offence created by s.47A as it was initially introduced by the legislature. However, as I have indicated, the section was substantially amended by the Crimes (Amendment) Act 1997 (Act 81 of 1997) to take effect from 1 January 1998, and as a consequence of those amendments, the offence was significantly widened. Indeed one of the purposes of the amending Act, as described in s.1(a)(ii) was:
“to broaden the scope of the sexual offence created by s.47A of the Crimes Act 1958.”
The offence to which this appellant has pleaded was the offence as is currently described. Nevertheless, the judicial cautions to which I have referred remain as apt, if not more so, to the offence as currently described as they were to the offence in its original statutory form. The submissions of counsel made to this Court about the purpose of the current legislation were properly cast in the context of the history of the section and the comments made about it in the cases to which I have referred.
The gist of the offence now created by s.47A is to be found in sub-ss. (1), (2) and (2A). They are in the following form:
“(1)A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married is guilty of an indictable offence.
(2)To prove an offence under sub-section (1) it is necessary to prove –
(a)that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B), and
(b)that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) also took place between the accused and the child on at least 2 other occasions during that period.
(2A)It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.”
As the amending Act stipulated, the amendments made to the offence did indeed substantially “broaden” the pre-existing offence. It was no longer a requirement that the child be under the “care, supervision or authority” of the accused during the period of the relevant relationship. Nor was it any longer necessary for the prosecution to prove, as a pre-requisite to conviction, that the accused had, within the period alleged, done in relation to the child at least three acts of the same kind which would constitute the same offence of a sexual nature under the same provision. This “broadening” of the offence was achieved by the insertion of the new sub-s.(2A) and the omission of the word “particular” from the phrase “which would constitute an offence under a particular provision of“ in sub-s.(2)(a); and the re-writing of sub-s.(2)(b) to exclude the words “such an act”. Proof of three or more acts of the same kind had formerly been the actus reus of the offence as all judges of the High Court in KBT v. R. (supra at 422, 433) had noted in respect of the offence in s.229B of the Criminal Code (Qd) which, to all intents and purposes, was couched in similar language to the offence described in s.47A of the Crimes Act. Brennan, C.J., Toohey, Gaudron and Gummow, JJ. said (at 422) that the offence was not one couched in terms of a course of conduct. Rather, they said, the terms of the section made it clear that:
“the actus reus of the offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on 3 or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s.(1A) rather than maintaining an unlawful sexual relationship, it follows … that a person cannot be convicted under s.229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.”
In both R. v. KRM (supra at 442 per Buchanan, J.A.) and R. v. Macfie (supra, at [33]) this Court accepted that this analysis of s.229B of the Criminal Code (Qld) must apply equally to the offence described by s.47A of the Crimes Act (Vic) because the description of the offences in the respective provisions was not materially different.
It is against the background of the statutory development of the offence of “maintaining a sexual relationship with a child” that I now turn to the grounds of the appeal and the submissions made to this Court in support of them. The grounds, as amended by leave of the Registrar, are as follows:
1.The sentence imposed on the applicant was manifestly excessive.
2.The sentencing judge wrongly imposed cumulative sentences in respect of counts 2 (sic), 3, 4 and 5.
3.The learned judge failed to take account sufficiently, or at all, of personal circumstances of the applicant both at the time and subsequent to the commission of the offence.
On 24 August 2001, Vincent, J.A. granted leave to the appellant to appeal pursuant to s.582 of the Crimes Act. It was his Honour’s view that the appropriateness of cumulating sentences for individual sexual offences, alleged to have occurred within the period of the sexual relationship for which the appellant had been punished, was a matter worthy of consideration by the Court.
In the course of developing his submissions on behalf of the appellant in this Court, Mr. Shwartz contended that, once the appellant had pleaded guilty to the offence in count 1 (namely “maintaining a sexual relationship between 1 July 1999 and 7 April 2000”) it was not competent for the judge to accept pleas of guilty or to impose punishment for the offences alleged in the remaining counts of the indictment, which were all alleged to have occurred within the period of the maintained sexual relationship. Indeed, Mr. Shwartz submitted that, on the proper construction of s.47A, and certainly after the 1997 amendments, the specific offences alleged in counts 2, 3, 4 and 5 (all being acts “which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B)” within the meaning of s.47A (2)(a)) were particulars of, and alternatives to, the offence alleged in count 1. His argument in this respect, he submitted, gained strength from the provisions of sub-s. (5) of s.47A which provides:
“(5) If on the trial of a person charged with an offence against sub-section (1) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused did an act during that period which constitutes an offence against Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I the jury must acquit the accused of the offence charged but may find him or her guilty of that other offence and he or she is liable to punishment accordingly.”
Mr. Shwartz pointed to the procedure which had been adopted by the Crown in the case of R. v. Macfie (supra at [35]) as being the appropriate – and indeed only – procedure which could be followed consistently with the application of the common law principles relating to double jeopardy. In the case of R. v. Macfie the prosecution had presented the accused on a large number of counts. The first count alleged the offence of “maintaining a sexual relationship” with a child under 16 over a period of one month, and the succeeding counts (counts 2-9) alleged specific offences (within the relevant subdivisions) during the same period. In describing the procedure followed, this Court said[7]:
“Thus those counts [namely 2-5, 8] were themselves particulars of the conduct relied upon to establish the maintenance of the sexual relationship and, to that extent, the circumstances in and the occasions upon which the relevant criminal acts occurred were identified. Accordingly, as we have noted, count 1 and the five counts became alternatives and the Crown presented them in that way. Indeed, although counts 6, 7 and 9 alleged offences of a different character from the 5 counts and, thus, could not constitute the actus reus of count 1, they were also presented as alternatives to count 1 on the ground that they were part of the proof of the ‘maintenance of a sexual relationship’ which was thought to be an element of count 1. It necessarily followed that when the jury returned a verdict of guilty on count 1, no verdicts were taken on counts 2 to 9 inclusive.”
[7]At [35] per Winneke, P. and Chernov, J.A., with whom Brooking, J.A. agreed.
Mr. Shwartz contended that, because the specific offences alleged in counts 2 to 5 (inclusive) were all alleged to have occurred within the period of the “sexual relationship” alleged in count 1, and because they were all sexual acts upon which the Crown would have been entitled to rely (pursuant to the amended sub-sections (2) and (2A) of s.47A) to prove the sexual relationship alleged in count 1, the acts alleged in those counts were, relevantly, particulars of the sexual relationship charged in count 1 and should have been treated as alternatives to that count. He contended that, since the statute no longer requires proof of the same three or more acts constituting the same offence, the consequence for which he argued necessarily follows, notwithstanding that the Crown had sought to “artificially” confine the s.47A offence to acts alleging one kind of sexual penetration. Furthermore, so he submitted, it would be oppressive in these circumstances to “doubly expose” the appellant to conviction and punishment where the legislature had further amended the s.47A offence (by Act 48 of 1997) to increase the maximum penalty from that which was fixed for the “offence constituted by the acts” to one of 25 years. This, so Mr. Shwartz submitted, was yet a further indication that the legislature had intended that “specific offences” charged, and which were alleged to have occurred within the same period as the “sexual relationship” charged, should be treated as alternatives to the serious offence charged pursuant to s.47A; and that verdicts should only be taken in respect of them in the event that the jury could not be satisfied as to the guilt of the accused on the s.47A offence.
Because the submissions made by counsel for the appellant essentially challenge the convictions recorded against the appellant upon his pleas of guilty, Mr. Shwartz sought – and the Court granted – an extension of time for applying for leave to appeal against the convictions recorded on counts 2 to 5 inclusive; and leave to amend the application for leave to appeal against the sentence imposed by confining the grounds as follows:
“1.That the orders for cumulation upon a sentence for maintaining a sexual relationship were not appropriate in the circumstances of the case.”
In accordance with the leave granted, the application for leave to appeal against conviction and the amended application for leave to appeal against sentence have been filed with the Registry. I should note, for the sake of completeness, that an accused person who has pleaded guilty to an offence in the court below is, in rare circumstances, entitled to appeal against the conviction recorded if he can demonstrate to the appellate court that the offence or offences to which he pleaded guilty were offences for which he could not lawfully be convicted[8]. Satisfaction of such circumstances will, probably, lead the Court to the conclusion that a miscarriage of justice has occurred.
[8]R. v. Murphy [1965] V.R. 187; R. v. Kardogeros [1991] 1 V.R. 269 at 273; R. v. Tait [1996] 1 V.R. 662; R. v. Parsons [1998] 2 V.R. 478 at 482-3.
Mr. McArdle Q.C., who appeared for the respondent, did not oppose the applications to which I have referred in the preceding paragraph, but requested time to put before the Court further submissions in response to those made on behalf of the appellant. Those submissions have now been filed, and I will refer to them hereafter.
For my part, I am of the view that there is substance in the submission made by Mr. Shwartz on behalf of the appellant. Where the prosecution alleges an offence against an accused person of “maintaining a sexual relationship”, it now (that is, since the amendments of 1997) bears the burden of proving that – within the period of relationship alleged – the accused person did three or more acts with the child, each of which would constitute an offence under a provision of Sub-divisions (8A), (8B) or (8C) of the Crimes Act (emphasis added). It is no longer necessary for the prosecution to prove that the alleged acts “be of a similar nature or constitute an offence under the same provision” (s.47A(2A)). Thus in this State the essence of the offence has been “relaxed” from that described by this Court in R. v. KRM (supra, at 439 per Buchanan, J.A.); namely that “[i]n order to find the applicant guilty of the count laid under s.47A it was necessary for the jury to find unanimously that the same three acts constituting offences of a sexual nature under a particular provision of the Act had been committed by the applicant” (my emphasis). In other words the jury may now find the offence proven if satisfied that, within the stipulated period of relationship, the accused has committed “at least” three acts of any kind of a sexual nature upon the girl under the age of 16, provided that they constitute an offence under one or more of the provisions of Sub-divisions (8A), (8B) or (8C) of Division 1 of Part 1 of the Act. Those sub-divisions include offences of rape, indecent assault, assault with intent to rape, incest, sexual penetration of children under the age of 16, indecent acts with children under 16, and other like offences. Thus, whilst I presume that the jury must achieve unanimity as to the three or more acts proven, they are no longer confined to a satisfaction of three or more acts of the same character constituting an offence against the same provision.
It seems to me to necessarily follow that, where the Crown alleges – either on the one presentment or otherwise – that the accused has committed the offence of unlawfully maintaining a sexual relationship with a girl under the age of 16 years during a specified period, and further alleges that, during the same period, he has committed specific offences contrary to the provisions of Sub-divisions (8A), (8B) or (8C), the specific offences averred must be particulars of – and alternatives to – the offence of “maintaining a sexual relationship”. This is because the peculiar offence created by s.47A of the Act subsumes expressly or by implication, within its requirement of proof of “at least” three acts constituting relevant offences, all those acts done by the accused in relation to the child during the period of the relationship which are offences of the relevant kind. Every such act committed within the period of relationship – whether one, two, three or beyond – is capable of being relied upon and utilized by the Crown to prove the existence of the unlawful relationship; and in my view must necessarily be an ingredient or particular of that offence. It does not seem to me to matter that the essence of the offence created by s.47A is proof of the “acts” done, as distinct from proof of the maintaining of the relationship. This distinction appears to lie at the heart of the submissions made by counsel for the respondent to the effect that:
“Section 47A does not require that the prosecution prove the accused maintained a sexual relationship … during the relevant period. The external elements of the offence comprise the three sexual acts alleged.”
This submission is not entirely accurate because what the s.47A offence requires for its establishment is not proof of “three sexual acts” but “at least” three acts constituting relevant offences within the stipulated period, so that the word “include” should be substituted for “comprise”. It is true that the offence can be established by proof of three relevant acts within the period alleged; but it is also true that the same, and no different, offence will be established by proof of three hundred such acts within the same period. Thus, in my view, once it is understood that the essence of the offence of “maintaining a sexual relationship” is constituted by a series of criminal acts, being three or more, of a particular kind committed by the accused within a stipulated period upon the same girl, it can be seen that there is no justification in law or in fairness for confining the offence to a part of the series, and charging the rest as substantive offences punishable independently from the offence of maintaining the sexual relationship.
Counsel for the respondent contends that it was both necessary and desirable to construct the presentment in the manner in which it was so that the “full extent of the appellant’s criminality” could be properly dealt with and reflected in the penalties to be imposed. I cannot agree. To construct the presentment in the manner in which it is offends, as I have said, principles of law, procedure and fairness. It offends principles of criminal law and procedure because, in cases where the prosecution is alleging that an accused person has committed the offence described by s.47A, it ought to allege, and particularize, all of the acts, of which it is aware, which constitute the ingredients of the offence. There is nothing in the description of the offence in s.47A of the Act or in rule 3 of the Presentment Rules in Schedule 6 to the Act which, in my view, permits particularization of portion only of the relevant acts as ingredients of the s.47A offence, and allegation of the remainder as separate substantive offences. To manipulate the known relevant criminal acts in that way not only distorts the statutory scope of the offence described in s.47A of the Act, but can lead to absurdity and oppression. By confining the “maintenance of sexual relationship” offence to some only of the unlawful acts which constitute the offence, and thereafter alleging, as specific offences, others of those acts committed within the same period, the prosecution is effectively alleging a further offence contrary to s.47A within the same time span. In this case, for example, the appellant has, by pleading guilty to the offences alleged in counts 2, 3, 4 and 5, admitted that he has on at least three or more occasions done acts in relation to the same child, and within the same time frame, which constituted offences under the provisions of Sub-divisions (8A), (8B) or (8C) of the Crimes Act. In substance, he was therefore conceding that, through different acts, he had maintained a sexual relationship with the same girl during the same period. Indeed, it is here conceded that count 3 was “representative” of many acts of digital vaginal penetration which could, in themselves, have supported an offence of “maintaining a sexual relationship” contrary to s.47A, if the Crown had chosen to particularize it in the same manner as count 1. No doubt the Crown could have, if so minded, claimed to “split” the wilfully indecent act offence alleged in count 2 into two or more counts by alleging different forms of wilfully indecent acts (for example, touching pubic parts, fondling breasts, etc.) in the same way as the presentment “split” the acts of sexual penetration. The offences alleged in counts 2 to 5 inclusive were not, and could not be, pleaded with specificity which, as I have said, was the reason for creating the offence in s.47A. It is for such reasons that I am of the view that there is nothing in the provisions of s.47A (1), (2)(a) and (b), and (2A) which entitles the prosecution to exclude from the particulars of the offence preferred under s.47A a portion of the known relevant acts done by an accused in relation to the girl within the period of the relationship sought to be proven, and to charge the excluded relevant acts as additional specific offences. If charged in separate counts, they will become particulars of, and alternatives to, the offence of “maintaining a sexual relationship”. I agree with appellant’s counsel that the provisions of s.47A(5), which empower a jury to convict an accused person of specific acts alleged in proof of the “sexual relationship”, in the event that they acquit on the count of “maintaining” the relationship, points to Parliament’s intention that the specific acts so alleged are to be treated as ingredients of, and mere alternatives to, the s.47A count. So, too, in my view, does s.47A(6) which provides that sub-s.(5) “does not restrict the operation of sections 421 or 422” (which sections embody the common law principles in relation to alternative verdicts).
The respondent’s counsel, as I have previously noted, contended for a construction of s.47A different from that which I have given it. He submitted that there was nothing to be found in the terms of the offence created by s.47A, or in procedure, which prevented the prosecution from confining the particulars to one species of sexual penetration and charging the balance of the accused’s criminal conduct, even though occurring within the same time frame, in succeeding counts as specific offences punishable separately. Counsel submitted that this was an appropriate choice of “criminal pleading” which obviated problems of “double jeopardy”, “autrefois”, “double punishment” and the application of the provisions of s.51 of the Interpretation of Legislation Act 1984[9]. Counsel for the respondent submitted that the preferment of separate offences in succeeding counts was appropriate, not only because it reflected the totality of conduct of the accused, but because it would obviate difficulties with which a jury would be presented in reaching unanimity; and difficulties which would confront a trial judge in interpreting the jury’s verdict for the purpose of imposing sentence.
[9]cf. Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378; R. v. Weeding [1959] V.R. 298 at 301, 305; Falkner v. Barba [1971] V.R. 332; R. v. Sessions [1998] 2 V.R. 304.
It follows from the reasons which I have already given as to the proper construction of s.47A that I cannot accept the submissions, made on the respondent’s behalf, that the offences charged in counts 2 to 5 (inclusive) are not particulars of, and alternatives to, the offence alleged in count 1. However, even if that view is in error, it seems to me that to file a presentment charging an accused person with the offence described in s.47A and, by manipulation of particulars, with a series of other substantive offences based on acts which could properly have supported the charge under s.47A, is oppressive and unfair to the accused. The maximum penalty available to the court for punishing the offence under s.47A, namely 25 years, gave ample scope to the judge to punish the whole of the conduct constituting the “sexual relationship”. This is so even though, in the absence of prior convictions, the offender will not fall to be punished as a serious sexual offender. Indeed, I am inclined to agree with appellant’s counsel that the fixing of such a penalty by the legislature is, in itself, a reflection of the Parliament’s intention that the “whole of the conduct” should be taken into account in punishing that offence, if proved. However, if the respondent’s contention is correct, the appellant is exposed not only to the 25 years on the s.47A count, but to an additional 10 years (maximum) upon each of counts 2 to 5 inclusive. Such a course seems to me to have been calculated to cause the maximum prejudice to the appellant in circumstances which are unwarranted. I do not accept that particularizing the whole of the conduct constituting the relationship produces difficulties in securing unanimity of verdict or in the task of sentencing. Any such difficulties, if they exist, will occur in any event by virtue of the amendments to s.47A permitting the offence to now be proved by reference to a far broader range of criminal acts than was formerly the case. Indeed it seems to me that the Crown, in framing count 1, has averred the offence in accordance with the section as it originally stood, rather than in accordance with its description after the 1997 amendments.
Whilst it is true, as counsel for the Director submits, that the decision as to what charges should be laid and prosecuted is a matter for the prosecution, it will be for the Court to determine whether the method chosen amounts to unnecessary vexation and harassment of the accused and, if so, whether it amounts to an abuse of the Court’s process[10]. To my mind, if the procedure adopted here by the prosecution carries the consequences for which it contends (which in my view it does not), then the appellant has been exposed to a degree of prejudice to which he ought not fairly to have been exposed. In a sense the procedure adopted was somewhat analogous (although not completely) to charging and convicting a person with and for the commission of the overt acts of a conspiracy for which that person has already been charged and convicted[11]. Accordingly, even if I am wrong in concluding that the offences alleged in counts 2 to 5 inclusive were ingredients of and alternatives to count 1, I am of the view that the County Court judge, in the exercise of the inherent power which he has to prevent abuses of that court’s process, should not have proceeded to convict and impose punishment on the offences
charged in counts 2 to 5 (inclusive), once he had convicted and proposed to impose punishment upon the appellant for the offence of maintaining the sexual relationship charged in count 1.
[10]cf. Pearce v. R. (1998) 194 C.L.R. 610 at 620-1.
[11]cf. R. v. Hoar (1981) 148 C.L.R. 32, at 38.
For the reasons given I would allow the appeal against conviction; and quash the convictions recorded and sentences imposed upon counts 2 to 5 inclusive. As there is no appeal against the conviction recorded and the sentence imposed upon count 1, the sentence of four years imposed upon that count will stand. It follows that the “serious offender notation” made by the judge pursuant to s.6F of the Sentencing Act 1991 is unwarranted. I would propose that the appellant serve a period of three years before becoming eligible for parole.
BATT, J.A.:
I agree with the President, whose reasons for judgment I have had the benefit of reading in draft. In essence, the acts the subject of counts 2 to 5 were inherently ingredients of the offence alleged in count 1 and the pleader could not circumvent this fact by a purportedly limiting particularisation. Moreover, if the respondent’s argument were correct it would by no means rarely be possible to allege a number of s.47A offences committed against the same victim in the same period, each constituted by three instances of a different kind of sexual act, which seems to me to be absurd.
O'BRYAN, A.J.A.:
I have had the advantage of reading the reasons for judgment in draft of the President. I agree with the President that leave to appeal out of time against the convictions on counts 2, 3, 4 and 5 should be granted and that the appeal be granted with the consequence that convictions imposed in respect of those counts will be
quashed and the sentences set aside.
I agree with the President that counts 2 to 5 inclusive are particulars of, and alternatives to, the offence charged in count 1. Once the appellant pleaded guilty to count 1 he should not have been required to plead to the remaining counts.
I agree in the orders proposed by the President in paragraph [20] of his reasons for judgment.
20