R v M, DM - [2015] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v M, DM
[2015] SADC 39
Reasons for Decision of His Honour Judge Stretton
12 March 2015
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
The accused pled guilty to persistent sexual exploitation of a child, but disputed the extent of the alleged offending. Evidence on oath given by complainant, her mother and the accused.
Held: Findings of fact made beyond reasonable doubt.
R v C, M [2014] SASCFC 116; R v Kreutzer [2013] SASCFC 130; R v Spong [2008] SASCFC 36; R v Nemer [2003] SASC 375, considered.

R v M, DM
[2015] SADC 39
The charge and plea

The accused has pled guilty to the persistent sexual exploitation of a child.
The accused admits that he committed conduct amounting to indecent assault of his stepdaughter on at least two occasions over a period of not less than three days, as alleged in the Information, and that accordingly he is guilty of the offence of persistent sexual exploitation of that child.
By his plea and through his counsel the accused has admitted that his conduct was indecent in that it would have been regarded as indecent by reference to reasonable contemporary standards, and was accompanied by the requisite element of lewdness or sexual connotation.[1]
[1] R v C, M [2014] SASCFC 116.
There has however been a dispute as to the factual basis upon which he should be sentenced.
Factual dispute
In brief compass the accused says his conduct was less regular than suggested by the Crown, and whilst his conduct was objectively indecent with a sufficient sexual connotation to amount to indecent assault offences, he also maintains it was done without any prurient intent on his own part to derive sexual gratification.
The prosecution maintain that the regularity and seriousness of the conduct is as alleged by the complainant in her interviews with police, and that in all the circumstances the inference of a prurient purpose is established.
Where there is such dispute, the dispute must be addressed and resolved, and any circumstances of aggravation must be established by the Crown beyond reasonable doubt.[2]
[2] R v Kreutzer [2013] SASCFC 130, R v Spong [2008] SASCFC 36, R v Nemer [2003] SASC 375.
Accordingly evidence has been called.
Evidence called as to the disputed facts
The video interviews with the complainant and the accused were tendered by consent.
The complainant gave evidence on oath, after the court satisfied itself that she satisfied the test to do so. The complainant’s mother also gave evidence on oath.
The complainant, despite her young years, gave evidence well and broadly consistently with her interviews. The court’s initial provisional impression was that she appeared a good witness, also seeming credible and straightforward in her video interviews. The complainant’s mother also gave evidence well, consistently, and the court’s initial impressions were that she came across as reasonable and credible.
The effect of the complainant’s interviews and evidence was that the first occasion the accused touched her ‘in a bad way’ was at the previous house in Campbelltown. It was about 6pm when her mother was putting her sister to bed. The accused came into the complainant’s bedroom, pulled her pyjama pants down and looked between her legs at her vagina.
The complainant said that after that, he would do the same kind of thing regularly. He would pull down her pyjamas, or move her underwear sideways with his hand. Sometimes he would just look at her vagina whereas sometimes he would poke and touch her vagina. Sometimes he would say “Yum” when he did it. It would occur when her mother was either in the shower, shopping or putting her sister to bed.
The complainant said this occurred perhaps 2-4 times a week, perhaps every second week, continuing every month until when she told the police. She said the accused would look for perhaps two minutes, and sometimes poke her in the vagina with his finger for perhaps 20 seconds. She said when he poked her it would hurt a bit. She would tell him to stop, which he would not initially do, but then a few seconds later he would stop. She said what the accused did to her made her feel uncomfortable.
In her second interview the complainant described the last two occasions it happened, and an example of the time he said “Yum” to her.
She described the penultimate occasion four weeks prior to the 5 November 2013 interview when she was on the lounge. At the time her mother was at the shop. The accused sat next to her, lifted up her skirt, pulled her knickers to the side with his hand and looked at her vagina for about a minute. The final occasion was on 28 October 2013 the day before the police were notified.
In her 5 November 2013 interview the complainant described an example of an occasion when the accused said “Yum” to her, describing an event when her mother was putting her sister to sleep whereupon the accused came into her room, put his hand down her pants and stroked her vagina about four times over the course of a few minutes and said “Yum”.
The accused also gave evidence. He was an extremely stressed and agitated witness. So much so that he initially appeared to not know how old he was.[3] I have due regard for the fact he is a lay witness giving evidence, however, even allowing for that, regrettably he did not present well, either in his recorded interview with the police or in evidence.
[3] T50.
The accused said that ‘things started’ with the complainant about six months prior when she came into the bathroom when he was naked having a shower, which started a game between them of “I saw yours, you saw mine”, or words to that effect.
The accused initially said to police there were only a couple of instances of accidental touching, then told them that he may have touched her on the vagina a total of four or five times, two of which were the accidental occasions. Then he said that probably every two weeks or so he would “flick her on the front bum”, which although he knew was wrong and inappropriate, was just a bit of fun between them. As a part of that he said the complainant would pretend to kick him in the groin, placing her foot in his groin, again as part of the fun, he said.
In giving evidence the accused repeated how he said ‘it all started’. He said he would also occasionally pull the complainant’s pants down in front of her mother, which he kept doing although she told him it was inappropriate, but just for a joke. He said he would do that once or twice a week after she came out of the bath into the lounge.
The accused said that sometimes in the context of innocent tickling he would poke the complainant in the groin. He said in cross examination he tried to discourage and stop her coming into the bathroom, but that he pulling her pants down continued as it was funny, and in his words ‘relationship building’.
In evidence the accused initially said he poked the complainant in the vagina area “on a couple of occasions”[4], and that he had pulled her pants down and looked at her vagina area five times, three of which were in front of the complainant’s mother, but then said he put his hand down the front of the complainant’s clothing to touch her vagina a total of three to five times.[5]
[4] T 62.
[5] T 65-66.
When the complainant’s evidence was put to him that it was much more frequent, he said it occurred once a month or every few weeks, and that it was to make her laugh and bond with her.[6] Later in cross examination he said it occurred maybe three times a month.[7]
[6] T 66-68.
[7] T 94.
The accused said that while it was funny and it was rude in a sexual way, he was just relationship building with her and did not think of it as sexual at the time, although it was sexual in the sense that it was a sexual part of the body.[8] As cross examination progressed, regrettably the accused’s evidence was, and remained, quite jumbled on this issue.
[8] T 72.
He said he had told the police it had happened much less frequently than he was now admitting in court as he was confused and scared at the time.[9]
[9] T 88.
The accused agreed he may have said “Yum” to the complainant on one occasion when he was looking at her vagina, but that he meant nothing by it, although he conceded he would say that in a sexual context to the complainant’s mother.
When matters arising from his police interview were being put to him for explanation the accused initially said that half his police interview had been left out of the transcript of the interview. Then he said he could not remember and did not know what had been left out. Then he said that whatever had been left out was non-consequential. A review of the video as against the transcript does not support any suggestion that the transcript has omitted relevant portions of the police interview.[10]
[10] T 78-79.
The accused agreed that when confronted by his partner on the night in question, he had denied the allegation he had touched the complainant on the vagina or said “Yum”, saying that he did however explain it all to her over the course of the subsequent evening, as to how he had in fact done that with the complainant, but in a different non-sexual context.[11]
[11] T 84-87.
This was denied by his partner when she gave evidence. She said that he just denied the allegations, and repeated that he did not know why the complainant was saying what she was saying.
The accused was cross examined on a number of other subjects, which for brevity I will not repeat.
Assessment of the evidence
I have had close regard to all the evidence and counsel’s submissions, although for brevity I have not attempted to recount all of the relevant evidence or any of counsel’s specific submissions on the facts. I am however grateful for the comprehensive and careful submissions of both counsel.
Whilst I have earlier described some provisional impressions of the witnesses, I formed no final conclusions until the conclusion of all the evidence and counsel’s submissions.
Ultimately, the complainant was a good and convincing witness. Whilst there were some small inconsistencies in her description of individual instances, they were exactly what one would expect of a young child with an honest recall of events, trying to distinguish between a number of similar events that had occurred to her over time. It had the ring of truth.
The complainant’s mother was also a good and convincing witness, who gave evidence in a remarkably calm and well-reasoned way, given what had happened to her daughter and the history of this matter.
On the other hand the accused was in the court’s opinion a very poor witness. He was agitated, stressed and hard to understand. I make full allowance for the position he was in, answering serious charges and estranged from his family including the two biological children he has had with the complainant’s mother, but even allowing for that, his presentation was jumbled, inconsistent and poor on most issues.
The accused was inconsistent about the frequency and nature of the contact between him and the complainant, and his evidence was inconsistent with the evidence of the complainant’s mother concerning the evening in question and his subsequent discussions with her. The accused’s ultimate position, that he did poke the complainant’s vagina three times a month, sat very uncomfortably with his explanations as to why he did that, ie to innocently bond with her and be her dad. In other respects his evidence and his explanations were jumbled, hard to accept and unconvincing.
Conclusion re the evidential contest
In the final analysis, the evidence of the complainant and her mother as to the circumstances of the offending and the evening when the offending was disclosed was compelling, and the court accepts it beyond reasonable doubt.
The accused’s evidence to the extent that it may be contrary to the evidence of the complainant and her mother, does not raise a reasonable doubt as to the matters deposed by the complainant and her mother.
Findings of fact
The court finds beyond reasonable doubt that the conduct as alleged by the complainant and her mother did occur as they depose, and in particular:
·The accused touched or poked the complainant’s vagina several times a month from about March 2013 to the end of October 2013.
·The touching would always occur when the complainant’s mother was not present. It would occur when the complainant’s mother was shopping, having a shower, or putting the complainant’s younger sister to bed.
·The accused would either pull the complainants pants down or otherwise put his hands inside her clothing.
·He would look at her vagina and poke it for perhaps 20 seconds, and on at least one occasion made a stroking movement with his hand.
· On occasions the accused would also say “Yum” to the complainant.
·These occasions were usually in the complainant’s bedroom or on the couch in the lounge room. They were by and large not accompanied by other playing or tickling.
·These actions were indecent by reference to reasonable contemporary standards and were accompanied by an element of lewdness and sexual connotation. They amounted to indecent assaults.
·The poking would sometimes hurt the complainant a little, and always made her feel uncomfortable.
·On other occasions the accused would just look at the complainant’s vagina.
Conclusions re the accused’s mental element and suggested prurient interest
I turn to the issue of the accused’s motivation and mental state.
I have regard to all the evidence, and make the following particular observations, relevant to the issue of the accused’s mental state at the time of the offending.
Firstly, it is difficult to conceive how anyone could think that regularly poking a young stepchild in the vagina, when alone with her in the bedroom or lounge, was either appropriate in the least, or still less be a legitimate way of “bonding” or “being a father.”
The occasions when the accused poked the complainant’s vagina, or looked at the complainant’s vagina as alleged by the complainant, always occurred when the complainant’s mother was either in the shower, shopping, or putting the other child to bed in another room. The accused never did it in the mother’s presence, and initially denied it to the mother and initially did not disclose it to the police. If the accused thought that the conduct was an acceptable way to behave and had no prurient intent, the question immediately arises as to why he never did it in front of the complainant’s mother, nor tell her about it, particularly when he was at pains to explain to her two other occasions of accidental touching.
The accused did occasionally pull down the complainant’s pants in the presence of the mother, despite being told by the mother that it was not appropriate. Hence he plainly knew that the far less serious conduct of simply pulling the complainants pants down in front of the complainant’s mother was regarded by her as inappropriate.
Having regard to all the evidence, the inescapable conclusion is that:
·The accused embarked on a deliberate course of inappropriately sexualised play with the complainant, continuing for about six months, which included regularly touching her on the outside of her vagina, which he concealed from the complainant’s mother as he knew it was indecent, inappropriate and would be entirely disapproved of.
·Whilst the accused may indeed have been trying to bond more closely with the complainant as he has alleged, the accused knew at the time that what he was doing was indecent and had sexual connotations, and knew it was inappropriate and wrong, but decided to proceed anyway.
·Whilst the accused must have had some inappropriate interest in doing what he did, as there is no reasonable appropriate motivation, it is not possible to conclude beyond reasonable doubt the degree to which the accused had a specific prurient interest in the child, beyond that there was at least some element of it in his motivation.
The accused will be sentenced in light of the above findings.