R v Pau
[2007] VSCA 239
•29 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 330 of 2006
| THE QUEEN |
| v |
| ION PAU |
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JUDGES: | NETTLE, ASHLEY and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 October 2007 | |
DATE OF JUDGMENT: | 29 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 239 | |
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Criminal Law – Rape – Conviction – Evidence – Relationship evidence – Evidence of applicant’s uncharged acts and comments of an overtly sexual nature – Whether admissible – Whether probative value outweighed by prejudicial effect – Application refused – Crime Act 1958 s 398A – R v Beserick (1993) 30 NSWLR 510, B v The Queen (1992) 175 CLR 599 referred to.
Criminal Law – Sentencing – Manifest excessiveness – Whether judge failed to take into account applicant’s lack of prior convictions – Whether sufficient weight given to the fact that applicant would serve sentence in protective custody – Application refused.
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr M C Kowalski | Galbally & O’Bryan |
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NETTLE JA:
On 3 July 2006, the applicant was arraigned before the County Court at Melbourne on one count of penile vaginal rape and after a two-day trial he was convicted of that offence. Following a plea in mitigation of penalty, he was sentenced to six years' imprisonment with a non-parole period of four years and six months. He now seeks leave to appeal against both conviction and sentence.
The facts
The offence occurred in July 1999, when the applicant was 21 years of age. He was then living with a woman whom he later married, and she was pregnant with their second child. I shall call her the applicant's wife. The complainant was the younger sister of the applicant's wife and was in year 8 at high school. She lived close by with her parents. Ordinarily, she took a bus to school but sometimes the applicant drove past the bus stop or her school and offered her a lift. On some of those occasions he made inappropriate remarks to her to the effect that she looked like his wife except with bigger “boobs” and that he thought of her when he was having sex with his wife. On one such occasion, he tried to touch the complainant's breasts.
The applicant also made inappropriate telephone calls and sent text messages to the complainant. He asked her if she wanted to be his girlfriend and go out with him, and in one text message he wrote that she should go over to his house and he would teach her maths by adding her to the bed, subtracting her clothes and then that they would start to multiply.
The offences occurred during the first few weeks of July 1999, shortly after the complainant's 13th birthday. She had arranged to go shopping with her sister after school and, therefore, that her sister should collect her from school. But the applicant arrived instead and told the complainant that his wife had sent him in her place. The complainant got in expecting to be driven home. But the applicant then drove around for some hours on the pretext of visiting friends and ultimately finished up at Lysterfield Park lake. By then it was getting dark. He stopped the car and told the complainant that he wanted to kiss her, and that he often thought about her as he was having sex with her sister. He leant over her, grabbed her chin and pushed her back into the seat, and kissed her on the mouth while putting his tongue into her mouth. She tried to push him off and he pulled back and laughed. He told her that she was a bad kisser, to which she replied that she was not trying to kiss him. He started the car again and began to drive her home. He told her that she should not tell anyone what had happened, and he threatened that if she did tell anyone, he would make it sound as thought it were her fault.
After a while, however, he pulled the car over again at a reserve in Clow Street, Doveton. He said that he wanted to apologise. Then he took her schoolbag off her lap, unbuckled her seatbelt and climbed over on to the top of her, with his legs on either side of her. He put his hands up her school skirt and touched her, and undid his pants, and then he put his penis into her vagina and “moved it a bit, then got off”. She was too scared to resist and looked outside the car. Then she saw people coming out of the sports centre nearby, and with that he jumped back into the driver's seat and drove off.
On the way home he told her not to say anything to her sister about what had happened, or else she would never see the kids again, and it would make everyone at school hate her because it would seem as though it had been her fault. He dropped her off near her parents' home and told her to visit her sister to avoid suspicion.
Grounds of appeal against conviction
All but two of the grounds of appeal against conviction were abandoned in argument. The remaining grounds (Grounds 2 and 3) are that the judge erred in admitting into evidence the applicant's uncharged acts of touching the victim's breasts and making comments about her breasts and otherwise of a sexual nature. Both grounds were argued together.
Counsel for the applicant submitted that the uncharged acts were too few and desultory to be seen as a series of continuous or connected events evidencing a relationship between the applicant and the complainant. As counsel would have it, they were also so different in nature from the charged act of penetration that the latter should properly be seen as an isolated event and that, by the admission of the evidence of the uncharged acts, the applicant was deprived of the benefit of having the jury consider the alleged offence in that light. It followed, in counsel's submission, that the evidence of the uncharged acts was not sufficiently probative to have been admitted or, alternatively, should have been excluded in the exercise of discretion. Counsel relied in support of his argument on the observations of Hunt CJ at CL in R v Beserick[1] and Smith J's dissenting observations in R v Josefeski.[2]
[1](1993) 30 NSWLR 510 esp, 522-525
[2][1997] 2 VR 68, 83-4, in diss.
I do not accept the argument. At common law, evidence of uncharged sexual conduct is admissible in a case of this kind, amongst other things to establish a guilty passion (or in other words, to establish a sexual desire or feelings) or otherwise to place the offence in context.[3] As McHugh J put it in KRM v The Queen,[4] -
in cases concerning sexual offences, evidence of uncharged acts between the accused and the complainant has long been admitted where it tends to explain the relationship of the parties or makes it more probable that the charged acts occurred. Thus, evidence of uncharged acts may explain why, on the occasion or occasions charged, the complainant did not rebuff the accused or showed no distress or resentment. It may also tend to prove that the accused had an unnatural passion for the complainant and thus prove the motive for committing the crime charged.[5]
Similarly, in Victoria, where the position is now governed by s 398A of the Crimes Act 1958, the test of admissibility for relationship evidence in sexual cases is one of fairness which effectively combines the pre-Pfennig[6] elements of common law admissibility with the considerations relevant to the exercise of the common law discretion to exclude otherwise admissible evidence on the basis that its probative value is outweighed by its prejudicial effect.[7]
[3]R v Beserick (1993) 30 NSWLR at 522-525.
[4](2001) 206 CLR 221.
[5]Ibid 230[24] (citations omitted).
[6]Pfennig v the Queen (1995) 182 CLR 461
[7]R v Loguancio (2000) 1 VR 235, 4243 [22].
No doubt, there are cases in which uncharged acts are sufficiently removed from an offence to be inadmissible under the s 398A test (just as they would have been at common law). Logically, there comes a point at which, because of separation in point of time or because of difference in the nature or character of the uncharged acts compared to the offence, or for some other reason, the uncharged acts cannot reasonably be relied upon as establishing guilty passion or as otherwise placing the evidence of the offence charged into a true and realistic context.[8] But in this case the uncharged acts were not in point of time or otherwise remote from the offence and, in my view, they were of a nature which was plainly relevant to proof of the offence. If the evidence were accepted, it established that, during the six or so months leading up to the commission of the offence, the applicant was sexually attracted towards his 13-year-old sister-in-law and that he was in the habit of giving expression to that attraction by engaging in conduct towards her which was of an overtly sexual nature, albeit falling short of sexual penetration.[9]
[8]R v Beserick, ibid; R v Hopper [2005] VSCA 214, [81].
[9]B v The Queen (1992) 175 CLR 599, 601-2, 608, 610, 618; R v Hopper [2005] VSCA 214, [81].
That being so, there was nothing unfair about the admission of the evidence. The prejudice to the accused which resulted from its admission was the result of its probative force.
In my view, the application for leave to appeal against conviction should be refused.
Grounds of appeal against sentence
As argued, the sole ground of appeal against sentence was manifest excessiveness of which the particulars advanced were an alleged failure on the part of the judge to give sufficient weight to the fact that the applicant did not have any prior convictions at the time of sentencing and an alleged failure to give sufficient weight to the added burden of imprisonment on the applicant of being likely to serve his term of imprisonment in protective custody and his mental condition.
I am not persuaded that the sentence was excessive or that the judge failed to give weight to any of those considerations.
I would allow that the offence was not amongst the most serious of rapes. But the maximum sentence for the offence of rape is 20 years' imprisonment and, despite the absence of prior convictions, a head sentence of only six years is within the range for an offence of this nature and gravity. As the Crown submitted and the judge noted in his sentencing remarks, there were in this case a number of significant aggravating factors. The complainant was only 13 years old and the sister of the applicant's partner. He stood in relation to her in a position of trust, which he abused. And as her victim impact statement bore out, the effects on her have been significant and are continuing.
The judge expressly took into account all of the mitigatory considerations which were urged in favour of the applicant, including his lack of prior convictions. His Honour also had regard to the applicant's relative youth at the time of offending, his family history, education and work history, state of health, and prospects of rehabilitation. Nothing was said on the plea or in the judge's sentencing
remarks as to the effects upon the applicant of having to serve his term of imprisonment in protective custody. But in view of the length of the sentence, there is no reason to think that the judge did not take it into account and give it the weight which it deserved.
Finally, there was really no evidence that the applicant was affected in his mental condition at the time of offending. Rather to the contrary, the judge had before him a report of a psychologist, Dr Wendy Northey in which it was said that the appellant did not have any psychological problems prior to 2002, when he developed psychotic symptoms typical of a delusional disorder likely to have precipitated by the extended use of marijuana over the previous decade. Those problems had been resolved by the time of sentencing.
In my view, the application for leave to appeal against sentence should also be refused.
ASHLEY JA:
I agree, for the reasons given by Nettle JA, that the applications for leave to appeal against both conviction and sentence should be refused.
DODDS-STREETON JA:
I agree with the disposition proposed by Nettle JA for the reasons his Honour stated.
NETTLE JA:
The orders of the Court will be -
The application for leave to appeal against conviction is refused.
The application for leave to appeal against sentence is refused.
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