R v Pignataro
[2003] VSCA 54
•13 May 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 37 of 20002
| THE QUEEN |
| v. |
| RAYMOND PIGNATARO |
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JUDGES: | CALLAWAY and BUCHANAN, JJ.A. and WARREN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 April 2003 | |
DATE OF JUDGMENT: | 13 May 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 54 | |
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Criminal law - Indecent act with child under 16, rape, attempted rape, assault with intent to rape - Whether conviction on one count inconsistent with acquittal on all other counts - Whether scrutiny warning required by reason of two years' delay between alleged offences and applicant's being charged - Whether conviction unreasonable or cannot be supported having regard to evidence - Sentence - Weight to be given to good character - Interpretation of jury's verdicts - Delay in complaining - Prospects of rehabilitation and specific deterrence - Whether sentence manifestly excessive - Effect of Court's reconciling verdicts differently from sentencing judge - Whether different sentence should be passed - Applications dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.B. Kidd | K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr A.J. Howard, Q.C. | Julian Teh |
CALLAWAY, J.A.:
The applicant, who is now aged 41, was presented in the County Court at Bendigo on two counts of committing an indecent act with a child under the age of 16 (counts 1 and 5), two counts of digital rape (counts 2 and 3) and one count of attempted penile rape (count 4). After a short trial occupying only three days, the applicant was acquitted on counts 1, 2, 3 and 4 and an alternative to count 4 but convicted on count 5. He had no previous convictions other than a speeding offence, for which a fine was imposed and he lost his licence for one month. Following a plea for leniency on his behalf, the applicant was sentenced to two years' imprisonment, of which service of 16 months was suspended for an operational period of two years. He seeks leave to appeal against both conviction and sentence.
There are three grounds of appeal against conviction:
"1.The learned trial judge erred in failing to provide to the jury a warning that, in all the circumstances of the case, it was unsafe [sic] to convict the applicant/accused on the uncorroborated evidence of the complainant.
2.The guilty verdict on count 5 is inconsistent with the verdicts of acquittal on counts 1, 2, 3 and 4 such that a miscarriage of justice has occurred.
3.The conviction is unsafe and unsatisfactory in all the circumstances."
Before turning to counsel's submissions I shall say something briefly about the facts, supplementing that account if necessary as each of the grounds falls to be considered.
At the time of the alleged offences the complainant was aged 15. The applicant was a family friend and also a business associate of her parents. Both families lived in or near Bendigo. They shared an interest in car racing and would attend race meetings together. The complainant sometimes assisted the applicant at his business premises by answering telephones and sometimes assisted both him and his wife by babysitting. They had a son who was about seven months old at the time of the last three counts.[1]
[1]I say "about seven months" because, whilst the Crown case was that the events the subject of counts 3, 4 and 5 took place in December 1999, the applicant said that the relevant occasion on which the complainant assisted him by babysitting was in November of that year.
The five counts on the presentment related to offences allegedly committed between August and December 1999. The complainant did not tell anyone about them until she told her brother about the events which formed the basis of count 1 in early 2001. She did not tell anyone else until December 2001, when she made a statement to the police, leading to the applicant's being charged. She said that she had not said anything earlier partly because she was concerned for her parents' business and partly because she was too ashamed of what they would have thought of her. She told her brother only about count 1 because she thought he would have been ashamed of her if she had told him about the other incidents.
On the weekend of 28th and 29th August 1999 the two families attended a race meeting at Winton near Benalla. When the races finished, the complainant's father asked her to travel back to Bendigo with the applicant. They did not take the usual turnoff at Violet Town and it was a good deal later than expected, about 9 o'clock, when the complainant arrived home. They changed vehicles when they reached the applicant's business premises in Bendigo. During the last stage of the journey, in the second vehicle, the complainant said that the applicant put his hand down her top and started fondling her breasts. She said that, earlier in the journey, he had asked her whether she "had a nipple" and, when he was putting the first vehicle away, had asked her to lift her top. Her evidence was that he fondled both her nipples with his left hand, steering the car with his right, and that that went on for about two minutes. The complainant agreed in cross-examination that the car had a manual gearbox.
The complainant also said that, when she arrived home, her parents questioned her about what took them so long. She said that they had taken a wrong turn but said nothing about the alleged offence. It was only in cross-examination that it emerged that there had been communication with her parents by mobile telephone after the applicant had missed the turnoff at Violet Town. She was not sure whether he had rung them or vice versa. The applicant's evidence was that he had rung the complainant's parents to tell them that they were going to be late.
The complainant's evidence continued that, about four days later, she received a telephone call from the applicant asking her to come to his premises and help out with the telephones during a busy period. She did so, it was a weekday and the people working at the premises, which were a car yard, finished at 5 o'clock. She said that, after they had left, the applicant took her down to a shed in the yard to have a cigarette; that he started kissing her, using his tongue and held her arms so that she could not pull away; and that he then put one hand on her lower back and the other down the front of her pants, started rubbing her vagina and stuck his finger in so that it hurt.
The applicant gave evidence that he did not smoke, although that was contested by the complainant and her mother. He also said that his time record sheets showed that his employees were still there at 5.40 p.m.
The last three counts related to an occasion on which the complainant helped the applicant babysit his young son. Her evidence was that that was at the applicant's request and that she did not want to go but her father told her to do so. There was uncertainty in the evidence as to whether the babysitting episode took place in November or December 1999. The applicant said that it was the former. It was a night when his wife went to the cinema with a friend. The applicant's wife said that the date was 2nd November, but that was based on her friend's diary. The friend gave evidence too. The diary entry read simply "Pictures" with the name of the film. It did not mention Mrs Pignataro, but the witness said that they had gone together.
When the complainant arrived at the applicant's home, his wife was still there. She left about half an hour later. After she went, the applicant grabbed the complainant's arm and took her to the spare room, where the baby was sitting in the middle of a double bed. The complainant said that the applicant pushed her on to the bed so that her legs were dangling over the end and placed his son on her chest. She said that his pants were already down and he pulled hers down too. She then gave evidence that he put his finger inside her vagina and tried to penetrate her with his penis. She expressly said that, after the baby was placed on her chest, she could not see what the applicant was doing.
The complainant's evidence-in-chief relating to count 5 was that the baby began crying and the applicant took him off and placed him on her left-hand side; that he lifted her T-shirt and bra up and masturbated himself to ejaculation over her breasts; and that he then went and got some tissues and cleaned the ejaculate off.
It will be as well to set out two passages from the complainant's cross-examination in full. The first question begins at the point at which the applicant had laid the complainant on the bed. The passage reads:
"You had covered your eyes, hadn't you?---Yes.
How do you know that he hadn't - if what you are saying is true - how do you know he didn't have any clothes on?---Because I could feel his bare skin.
For how long did you have your eyes closed or your hands over your eyes?---For most of it.
When you say most of it, when didn't you have your hands over your eyes or your eyes closed?---When he took [the baby] off me.
So all the way up until then you couldn't see him, you are just going by what you could feel?---Yes."
The second passage reads:
"I suggest that you really, if you are not looking at what is going on, you have got no idea what he is doing. It could have been his hand, it could have been his elbow, it could have been anything, couldn't it?---It could have.
Why did you stick out and say it is his penis?---Because I could feel it.
Yes, but you are still saying that it could have been something else, some other part of his body, aren't you?---Could have."
In re-examination the complainant said that it did not feel like an elbow or a hand but like the applicant's penis.
The applicant gave sworn evidence, agreeing that he had driven the complainant home from the races at Winton, that she could have helped him at the office with the telephones a few days later and that she had helped him babysit his young son. He denied any wrongdoing. He said that he had asked her to help with the baby because it was the first time that he had been left alone with him. His wife, however, gave evidence that there had been previous occasions when she had gone out and the applicant had been left with the child.
Apparently friendly contact continued between the applicant and the complainant. Its interpretation depends in part on the date of the babysitting episode. If it was in November, she stayed at his house later that month, sleeping in the bed on which she had allegedly been molested. The applicant gave her driving lessons after she turned 16. Her evidence was that she could not remember whether anyone else was in the car at the time and could not recall how many lessons she had had. On 10th January 2000 she sent the applicant an e-mail, to inform him of her new e-mail address, signing it "Luv Katherine".
The application was argued with diligence on both sides. If my reasons are shorter than counsel's submissions, that is only because I consider that the grounds are clearly unsustainable and that it is possible to explain in a relatively brief compass why that is so.
Mr Howard began with ground 2, acknowledging that that was the "primary ground". He said that this was an "all or nothing" case, but I did not find that submission to be of assistance. It was not a case where acquittal on one count would logically lead to acquittal on another, as for example where it is common ground that the perpetrator of count 1 also committed count 2. Whether or not counsel drew distinctions between the strengths and weaknesses of the evidence on each count, the jury were obliged to consider each count separately and to render their verdicts accordingly.
Factual inconsistency is unlikely between the acquittals on counts 1 and 2 and the conviction on count 5. There were three distinct episodes of alleged offending. They took place at different times and different places and consisted of different acts, namely fondling the complainant's breasts whilst driving a car, introducing the applicant's finger into her vagina when they had gone down to a shed in the yard to have a cigarette and masturbating himself to ejaculation and ejaculating over the complainant's breasts.
Moreover, in relation to count 1, the jury may have been troubled by the way in which the evidence emerged about the telephone calls to the complainant's parents and who initiated them; her coming home late and not making a complaint when her parents asked her why she was late; and the difference between her evidence about her T-shirt being stretched, at the committal as compared with the trial. The details of that discrepancy are not important. They may also have thought that some two minutes molestation in a moving car was less probable than the events described later. In the case of count 2, the jury may have considered it less likely that the applicant would molest the complainant during a working week at about 5 o'clock when, contrary to her belief, other employees may still have been present, as opposed to in his own home after his wife had left. There was a dispute whether the applicant was a smoker and a difference between the complainant's evidence and what she had told the police. She had told the police that the applicant had taken her out to the shed. It was only in evidence at the trial that she said that the purpose was to have a cigarette.
If there were any factual inconsistency, it would be between the verdicts of acquittal on counts 3 and 4 and the conviction on count 5. Those three counts related to a single episode in the privacy of the applicant's own home, when his wife was absent and he had arranged for the complainant to help him look after his young son. On further consideration, however, it is easy to see the distinction that the jury are likely to have drawn. According to the complainant, the baby was on her chest and either her eyes were closed or her hands were over her eyes during the alleged acts the subject of counts 3 and 4. That did not apply to count 5. She observed the ejaculation and the applicant's cleaning it up afterwards.
There is nothing surprising about a jury's entertaining a reasonable doubt about conduct that a witness did not see, but at best felt, and convicting in relation to conduct the whole of which she observed.[2] Her testimony was less certain on counts 3 and 4.[3] There is no suggestion of a compromise.
[2]That applies also to the alternative to count 4, assault with intent to rape, especially having regard to the terms of the charge at transcript, p.106 lines 22-28.
[3]See [14] above. In addition, in her evidence in chief relating to count 3, the complainant said that the digital rape was both with "his fingers" and "his finger".
I prefer that view of the matter to an analysis which depends on the fact that consent was relevant to counts 3 and 4 but not to count 5. At the outset of the trial the judge directed the jury, in relation to all counts, that the issue on which they should concentrate was whether the acts occurred and not whether there was consent. Although the jury had to be satisfied of all the elements, consent was not in issue between the parties. The defence was that the acts did not take place.
Counsel cited a number of authorities in relation to inconsistent verdicts. With one exception, I find it unnecessary to refer to any of them. The law is not in doubt and this is a straightforward case on whether there was, or was not, factual inconsistency. The exception is R. v. Celebicanin and Nyiri[4]. Adapting the language used in that case, the conclusion that there is no inconsistency here may be reached without an artificial examination of voluminous material or an exercise in ingenuity. In my opinion it is a fair interpretation of the jury's verdicts.
[4](1991) 53 A.Crim.R. 374 at 378.
In the light of our recent decision in R. v. GTN[5] it was not argued that a Longman warning was required. It was acknowledged that a delay of two years between the alleged offences and their being brought to the attention of the applicant was not substantial. Instead it was argued, under cover of ground 1, that the jury should have been directed to scrutinize the complainant's evidence with particular care having regard to ten features of the case set out in counsel's written outline, the fact that the learned judge was surprised by the verdict and inclined to rationalize it in terms of consent and the forensic disadvantage which, it was said, the applicant suffered by reason of the delay.
[5][2003] VSCA 38.
The ten features in the outline of submissions, omitting transcript references, were:
"(a)The Crown case depended upon acceptance of the uncorroborated evidence of the complainant.
(b)There was no forensic evidence in support of the allegations.
(c)The complainant was adamant she verbally and physically resisted the sexual advances of the applicant and that she did not consent to the sexual activities which she said occurred. She was very clear in her descriptions of each offence.
(d)The applicant gave sworn evidence. He had made no admissions to police. He readily admitted being present alone with the complainant at relevant times but denied any improper conduct occurred.
(e)The applicant led evidence of his absence of prior convictions (other than for a speeding offence) and evidence of his good reputation.
(f)In essence, the case involved the complainant's word against the applicant's denial.
(g)Each side puts its case to the jury on an 'all or nothing' basis. No distinction was drawn between the strength of the evidence on one count compared with another.
(h)The complainant voluntarily placed herself alone with the applicant in circumstances which were wholly inconsistent with her allegations.
(i)Following the last series of offences, there was significant friendly contact between the applicant and the complainant which was, again, wholly inconsistent with the nature of the offences and the alleged lack of consent. This contact, initiated in part by the complainant, included
·subject to the date of the final babysitting incident, the complainant attending a race meeting alone with the applicant and his wife and then staying overnight at the applicant's home in the same bed as the final alleged rape occurred a couple of weeks beforehand;
·the applicant attending social occasions in the presence of the complainant such as her 16th birthday in August 2000 and her father's birthday on 26 March 2001;
·the complainant having 3 or 4 (possibly 6) driving lessons alone with the applicant when she was 16 or 17; and
·the complainant initiating very familiar, 'love Katherine' email correspondence with the applicant on 10 January 2000, a matter of weeks following the final alleged rape.
(j)There was a significant delay in complaint. Approximately one year after the alleged event in respect of count 1, the complainant said she made a complaint to her brother but agreed she said nothing in relation to the events in respect to counts 2-5. It was approximately two years before she made a complaint to the police in December 2001. The delay was attributed by her to shame and concern for her parent's business; however these matters did not prevent the complaint being ultimately made."
Directions, of which no complaint is made, were given in relation to the applicant's having chosen to give evidence and about the two ways the jury could use the evidence of his good character. The jury were also told that they could take the delay in complaining into account in deciding whether to accept the complainant's evidence. The features listed above were well within the capacity of the jury to evaluate, either on their own or collectively, without further judicial instruction. Her Honour's surprise at the verdict was, with respect, mistaken. For the reasons I have endeavoured to explain, the conviction was consistent with the acquittals. There was little, if any, forensic disadvantage. The applicant was able to assemble his evidence, including a witness who could support her testimony with a diary. True it is that she was cross-examined on the meagre character of the diary entry. Mr Howard suggested that, if the accusation had been made earlier, that witness might have remembered the evening more clearly and the applicant's wife might have had independent recollection of the date.
The argument was attractively presented but, at the end of the day, this is a particularly clear example of delay causing no, or insignificant, forensic disadvantage. Mr Kidd reminded us of what I said in R. v. GTN[6] to the effect that the law has not reached the stage where any forensic disadvantage requires a direction from the judge. On the contrary, there must be a forensic disadvantage, or other factor, that makes a direction "necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice".[7] I agree that that principle is applicable. In my opinion it is easier to apply adversely to the applicant in the present case than it was in R. v. GTN.
[6]At [9].
[7]R. v. Miletic [1997] 1 V.R. 593 at 605.
Ground 1, that the conviction is unsafe and unsatisfactory in the sense that it is unreasonable or cannot be supported having regard to the evidence,[8] is without substance. There was ample evidence from the complainant, notwithstanding the applicant's denials, on which the jury could be satisfied beyond reasonable doubt that he committed the offence the subject of count 5. Indeed a major part of counsel's submission in relation to inconsistency was that the complainant's evidence was clear and unconfused. That is why, it was said, the jury were not entitled to reject her account of the first two episodes and most of the third and yet to convict as they did. The fallacy in that argument is that they may not have rejected her account but simply, giving separate consideration to each count, have entertained what they thought was a reasonable doubt in relation to the earlier conduct.
[8]Crimes Act 1958, s.568(1).
I would dismiss the application for leave to appeal against conviction.
There are six grounds of appeal against sentence:
"1.The learned sentencing judge failed to give any or any sufficient weight to general good character and background of the applicant.
2.The sentence is manifestly excessive in all the circumstances.
3.Given the verdicts of acquittal, the learned sentencing judge erred by failing to properly interpret and give effect to the jury's verdict on count 5 as meaning that the jury was satisfied that consensual sexual contact occurred between the complainant and the prisoner.
4.The learned sentencing judge erred in accepting significant parts of the victim impact statement provided by the complainant and her mother which were inconsistent with:
(i)consensual sexual contact having taken place between the complainant and the prisoner; and
(ii)evidence of ongoing contact between the complainant and the prisoner subsequent to the commission of the offence of which the prisoner was convicted.
5.The learned sentencing judge erred by failing to give any or any sufficient weight to the fact that the complainant delayed for over two years before making a complaint to the police.
6.Given that -
(i)the prisoner had no prior convictions; and
(ii)the learned sentencing judge's correctly found that there was a low likelihood of the prisoner re-offending and that the chances of his rehabilitation were reasonably good,
the learned sentencing judge erred by concluding that there was a need for the prisoner to be specifically deterred."
Counsel argued grounds 3 and 4 first, but grounds 3 and 4(i) are flawed. The better explanation of the jury's verdicts is not based on consent; but, even if the verdicts did reflect the fact that consent was relevant to counts 3 and 4 but not to count 5, that would not imply an affirmative finding of a circumstance of mitigation. It would imply only that the jury were not satisfied beyond reasonable doubt that the complainant was not consenting.
Although I have distinguished grounds 3 and 4(i) from ground 4(ii), the latter is largely flawed in the same way. The argument, as summarized in counsel's outline of submissions was:
"The friendly contact which took place between the complainant and the applicant subsequent to the commission of the offence of which the prisoner was convicted was, upon the analysis outlined above, consistent with consensual sexual contact having taken place between the complainant and applicant. Put another way, it was wholly inconsistent with a non-consensual sexual contact having taken place between them. In all the circumstances, the learned sentencing judge erred in accepting those significant parts of the victim impact statements which were inconsistent with consensual sexual contact having taken place and the evidence of the ongoing friendly contact which occurred."
The evidence of ongoing friendly contact was of little consequence at that stage. When it came to sentencing, the judge was not bound to find on the balance of probabilities that the complainant had consented to any of the conduct.
Grounds 1 and 6 were argued next. Her Honour referred to the applicant's having reached the age of 40 without previous relevant convictions, to the character evidence led on the plea and to the support of the applicant's wife and friends. She said that she was satisfied, on balance, that the applicant's chances of rehabilitation were reasonably good, indeed that the likelihood of his re-offending was low. That reduced the importance of specific deterrence but did not exclude it. Her Honour was entitled to say, as she did, that specific deterrence still had a role to play in the sentence. Moreover, her sentencing remarks are to be read as a whole and favourable findings are to be understood in context. These grounds are not made out.
Counsel conceded, in connection with ground 2, that the sentence was not manifestly excessive given her Honour's findings of fact. The submission was that the sentence was outside the range if the conduct was consensual. I have already dealt with that issue. In case I have misunderstood the concession, I hasten to add that in any event I do not consider that the sentence was manifestly excessive. The circumstances as I have described them, the location of the offence, the breach of trust involved and the difference in age between the parties justifies the view that her Honour took notwithstanding the applicant's previous good character, prospects of rehabilitation and significant contributions to the community.[9]
[9]Sentencing Act 1991, s.6(c).
That leaves two points to be considered. First, in her report to the Court on ground 5, the judge said that it was not submitted on the plea that delay should be taken into account. Her Honour continued:
"Had it been, factors which I would have taken into consideration, and which may have neutralised the two year delay being taken into account in favour of the prisoner, include the evidence of the complainant as to her reasons for not complaining earlier, and my view that the prisoner was not prejudiced upon his trial, conceding as he did the surrounding circumstances in each allegation, and having relevant and available witnesses which he called in his defence."
The submission was that the judge erred by failing to give sufficient weight to the element of delay. Her report shows that she did not take delay into account at all. It may be that the report merges matters relevant to conviction with matters relevant to sentence, but that need not be determined. Similarly, for a reason I shall mention shortly, I find it unnecessary to decide whether, in the circumstances of this case, not taking delay into account reopens the discretion. As her Honour pointed out, she was not asked to do so.
Secondly, although I have not reconciled the verdicts by reference to the element of consent, by the end of the plea both the judge and counsel appear to have been in agreement that that was the correct reconciliation. In her sentencing remarks her Honour said only that the jury were not satisfied in respect of "the evidence required for the balance of the counts on the presentment", but the exchanges on the plea and that reference to the elements suggests that she did reconcile the verdicts by reference to consent. In her report to the Court her Honour said that, although consent was not an issue between the parties, "the jury could of course have remained unconvinced as to proof of a lack of consent on counts 2-4, for which counts proof of this element was required."
Again it is far from clear that the sentencing discretion would be reopened if this Court considered that the verdicts were to be explained on a basis that had nothing to do with consent. That is because the judge's report also shows that she did not take consent or its absence into account either way in the sentencing process.
If the difference between the verdicts on counts 3, 4 and 5 is explained as I have done, that was an appropriate course to take.
Nevertheless, because of the possibility that delay should have been taken into account to some extent or that the judge's interpretation of the jury's verdicts may have affected her instinctive synthesis, I shall add that in that event no different sentence should be passed. There is no need for me to add to what I have already said earlier in this judgment, including my reasons for rejecting the contention that the sentence was manifestly excessive. In my opinion it was appropriate.
Accordingly I would dismiss both the applications.
BUCHANAN, J.A.:
I agree with Callaway, J.A. that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons stated by his Honour.
WARREN, A.J.A.:
I agree with Callaway, J.A. that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons stated by his Honour.
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