R v Hatton
[1995] QCA 74
•31 March 1995
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 27 of 1995
Brisbane
[R. v. Hatton]
THE QUEEN
v.
DAVID GIRWOOD HATTON
Appellant
Fitzgerald P.
Davies J.A.
Byrne J.
Judgment delivered 31/03/1995
Judgment of the Court
APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
CATCHWORDS: CRIMINAL LAW - maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years, with circumstances of aggravation, those being rape and the fact that the complainant was in the parental care of the appellant; whether trial judge misdirected the jury as to consequences of complainant's inconsistent statements, in light of complainant's mental deficiencies.
Counsel: Mr. R. Lynch for the appellant
Ms. L. Clare for the respondent
Solicitors: Legal Aid Office for the appellant
Queensland Director of Public Prosecutions for the respondent
Hearing Date: 21 March 1995
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 27 of 1995
Brisbane
Before Fitzgerald P.
Davies J.A.
Byrne J.
[R. v. Hatton]
THE QUEEN
v.
DAVID GIRWOOD HATTON
Appellant
REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 31st day of March 1995
This is an appeal against a conviction in the District Court at Toowoomba of the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 with two circumstances of aggravation; the first that he committed rape upon the child and the second that in the course of that relationship he had the child in his care. The offence was found to have been committed between 3 July 1989 and 13 January 1993. At the hearing of this appeal the appellant applied to add an application for leave to appeal against his sentence. That application was not opposed and the application for leave to appeal against sentence was heard following the appeal against conviction.
The appellant, who was 59 years of age at the date of trial in December last was the stepfather of the complainant who was born on 13 January 1977. The appellant had married the complainant's mother in 1986 when the complainant was nine. The case against the appellant was a strong one. The complainant, notwithstanding some mental deficiency was able to give evidence of a number of instances of sexual interference which included sexual intercourse and to say when they occurred by reference to other contemporaneous events. Her evidence was corroborated by, at least, an admission by the appellant to his wife and the discovery, in his possession, of a receipt for condoms said by the complainant to have been used during intercourse. The appellant did not give or call evidence at his trial.
The complainant's evidence was that sexual interference by the appellant commenced when she was about 13 and the family was living at Old Toowoomba Road, Laidley. At that address there was a house which was used for daily living by the appellant, his wife and her children, the complainant and her younger brother, and two caravans, one used for sleeping by the appellant and his wife, the other for sleeping by the children. The complainant recalls that early one morning in the loungeroom of the house, while his wife was still in their caravan, the appellant put his hands underneath her t‑shirt and felt her breasts and also touched her on the vagina. This occurred more than once at that location and on occasions he placed his lips on her vagina.
Whilst she was still only 13 the complainant said that the appellant commenced having intercourse with her. His practice was to put KY jelly around her vagina, place a condom on his penis and have intercourse with her. This would take place in the caravan in which the complainant and her brother slept. After intercourse the appellant would burn the condom in a combustion stove in the house.
The complainant was able to identify one occasion of sexual intercourse as occurring during the time while her mother was in hospital having a hernia operation. Her mother swore that the child was 13 to 14 years of age at the time of her hernia operation.
She was able to identify another occasion of intercourse as occurring when her mother took her brother David to play football. Her mother testified that the complainant's brother played football only during a single year, 1992, when the complainant was 15 years old.
The complainant said that on all of the occasions on which intercourse took place she kept telling the appellant "no". She could not remember how many occasions in all there were.
In April 1994 the complainant ran away and when found told her mother of the relationship. When her mother confronted the appellant about it he first denied it and accused the complainant of lying. When she again confronted him, telling him that the complainant wanted to go to the police he admitted having sexual intercourse with her, said that if the police came he would deny it and said that he thought that some of the girl's "problems" could have been sexual and that by having sex with her it could get rid of some of them.
The appellant's wife found in his possession a receipt for condoms. She swore that the appellant had never used condoms when having intercourse with her. The complainant had given specific evidence that on each occasion of intercourse with her the appellant had used a condom.
The appellant's case below, at least by implication from the way in which it was conducted, was not that sexual intercourse did not take place between the complainant and him but that it commenced when the child was 16 and was consensual. He had also been charged with a separate offence of rape committed after the complainant had turned 16 and was acquitted of that charge. This indicated that the jury were not satisfied of an absence of consent on the occasion of the act of intercourse the subject of that charge which was also described by the complainant with some specificity. But they were plainly satisfied that the sexual relationship had commenced prior to the complainant's 16th birthday and that the acts of intercourse, or at least one of the particularised acts of intercourse prior to that date, was without consent.
It was not submitted to this Court that there was insufficient evidence upon which to found a conviction for the offence upon which the appellant was convicted or that, apart from the direction to which we shall shortly refer, the jury's verdict was unsafe or unsatisfactory. Indeed no such submission could have been properly made.
The appellant's contention before this Court was that the learned Trial Judge misdirected the jury with respect to an earlier inconsistent statement of the complainant. It should be said at the outset that the appellant's counsel at trial sought no redirection in respect of the direction now complained of.
During the course of her cross-examination at the trial it was put to the complainant that her relationship with the appellant did not start until she had turned 16. She denied that and reaffirmed her evidence-in-chief that it had started when she was 13. The appellant's counsel then put to her some evidence which she had given in the committal proceedings. In those proceedings there were two passages in the transcript of her cross-examination which, on their face, appear to be inconsistent. The first, read in isolation, appears to state that the appellant had never done anything to the complainant before her 16th birthday. In the second passage of cross-examination the complainant was reminded of what she said in the earlier passage but then said, as she had in her examination-in-chief, that the appellant had touched her and had sex with her before she turned 16. These two passages were tendered by consent at the trial.
The appellant's first complaint is that the learned Trial Judge told the jury that their first task was to decide whether the complainant's committal evidence was inconsistent with her evidence at trial. It was submitted that this was a misdirection in law; that inconsistency, being a pre-requisite to admissibility of the evidence, was a question for the Judge and that the learned Trial Judge should have directed the jury on the assumption that the answers given in the committal hearing were inconsistent with her evidence at trial.
An initial difficulty with this submission is that the passages from the transcript of evidence in the committal proceeding were tendered by consent. The learned Trial Judge was never asked to rule on their admissibility. But in any event, once that evidence was admitted, the question of inconsistency, being one of fact, was plainly one for the jury. The learned Trial Judge's direction properly alerted them to that.
It was then submitted that the learned Trial Judge's direction was deficient in that, it was said, he put to the jury that if there were any inconsistency between evidence given at committal and evidence given at trial they had a choice between accepting the earlier evidence as the truth or accepting her evidence at trial as the truth; and that they should have been told, in addition, that even if they did not accept the evidence below, nevertheless that evidence might give rise to a reasonable doubt about the truth of her evidence at trial in which case they should acquit.
Two comments should be made about the complainant's committal evidence in the light of her mental deficiency. The first is that, as must have been obvious to the jury, she was unable to identify events by reference to dates or to say the number of occasions on which acts occurred. The second is that the first passage relied on in the transcript of committal evidence should not be read in isolation from the second. Read together, having regard to her disability, they are consistent with the complainant's evidence at trial.
Nevertheless it must have been apparent to the jury, if they had considered the possibility that the committal evidence might have been inconsistent with the evidence at trial, that that possibility might give rise to a reasonable doubt about the truth of the complainant's evidence. A specific direction to that effect was unnecessary.
No redirection was sought on this question either.
In our view there is no substance in either submission and the appeal against conviction should be dismissed.
This was a very serious case of a gross breach of trust by the appellant who was in a parental relationship to the complainant. It was made worse by the fact that the complainant had some mental disability which rendered her less mature than an average girl of her age. This was apparent from evidence which was given about her and from her own evidence.
The appellant callously used the complainant, from shortly after she was 13 years of age, for his own sexual gratification. And that gratification included, on at least two occasions, sexual intercourse. That sexual intercourse was, at least while the complainant was under 16, without her consent. She protested on each occasion.
Although the appellant did not ever threaten the complainant it is plain that he used his superior position to impose his will on her for the above purposes. Sexual intercourse must initially have been both painful and frightening to the complainant. Eventually she ran away from home and, although it is not said that she did so because of his advances it is probably more than coincidental that she made her first complaint about him to her mother when she was returned to her home.
The appellant showed no remorse. He caused the complainant to be cross-examined at the committal proceedings and at the trial. Although no evidence was given as to the effect that this relationship, which was maintained for about three years, and the trial had upon the complainant, it is unlikely that it will not have some long term effects.
The sentence imposed was one of ten years imprisonment. In submitting that it was too high the appellant relied in particular on Corinis C.A. No. 153 of 1993, judgment in which was delivered on 20 September 1993. In that case a sentence of imprisonment of 10 years had been imposed for a similar offence in circumstances having some similarity to those in the present case. The essential difference between the offence in that case and that in the present is that that case did not involve rape as an element of maintaining the unlawful relationship. In Corinis, this Court, on appeal against that sentence, reduced it to six years imprisonment.
The other main distinguishing feature between that case and this is that the maintenance of a sexual relationship in that case was for a much shorter period, one year and four months as opposed, in this case, to three and a half years. These factors, make this case a more serious one than Corinis.
The other case relied on by the appellant was Matherson C.A. No. 19 of 1994, judgment in which was delivered on 12 April 1994. That case was one of maintaining an unlawful sexual relationship with a child under 16 with a circumstance of aggravation namely having carnal knowledge of the complainant who was the appellant's stepdaughter. A sentence of ten years imprisonment was set aside and a sentence of seven years imprisonment with a recommendation that the applicant be considered for release on parole after two and a half years was substituted. However that case is also plainly distinguishable from this. No rape was involved although it was said that the child was an unwilling victim who believed there was no alternative open to her. More importantly, the appellant in that case was in the moderately retarded range. This had two consequences. The first was that, though general deterrence was still relevant, specific deterrence of the appellant was not of as much weight as in the case of a person of normal intellectual capacity. The second was that, because of his mental disability Matherson was assessed as being more opportunistic than predatory. The final difference between that case and this is that, in that case, the appellant pleaded guilty promptly.
A number of other cases were cited to us in which offences of maintaining an unlawful sexual relationship were considered though it was not suggested that any of them were analogous to this case. There is nothing in those cases which would lead to the conclusion that the sentence imposed here was outside the range of a sound sentencing discretion.
In our view the sentence was a high one. But having regard to the aggravating factors to which we have referred, the rape, the length of time during which the relationship was maintained and the appellant's total lack of remorse we cannot be satisfied that the sentence imposed was manifestly excessive. We would therefore refuse the application for leave to appeal against sentence.
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