R v Scott
[2009] VSCA 20
•2 March 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 55 of 2008
| THE QUEEN |
| v |
| WAYNE ARTHUR SCOTT |
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JUDGES: | NEAVE and REDLICH JJA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 October 2008 | |
DATE OF JUDGMENT: | 2 March 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 20 | 1st Revision 10 March 2009, n3 |
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CRIMINAL LAW – Application for leave to appeal – Conviction – Applicant charged with two counts of wilfully committing an indecent act with a child under the age of 16 – Applicant acquitted on one count and convicted on the other count – ‘Oath against oath’ case – Inconsistency between complainants evidence at committal and at trial – Whether complainant’s credit ‘indivisible’ – Whether verdicts inconsistent – Whether verdicts unsafe and unsatisfactory or unreasonable or not supported by the evidence.
CRIMINAL LAW – Application for leave to appeal – Sentence – Whether sentencing judge took account of previous acquittals when formulating sentence – Whether applicant’s conduct improperly described by sentencing judge as ‘predatory’ – Whether sentence manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr P G Priest QC with Mr S K Gardner | McGuinness & Hosking Pty |
NEAVE JA:
The applicant, Wayne Arthur Scott, was charged with three counts of wilfully committing an indecent act with, or in the presence of, a child under the age of 16. Count 1 related to the complainant KA, and counts 2 and 3 to the complainant TK. The applicant was acquitted by a jury of counts 1 and 2 and convicted of count 3.
Counts 2 and 3 were alleged to have occurred at the 16th birthday party of TK’s sister, TA, which was held at their parents’ home and attended by about 50 young people and adults. The complainant said that the applicant rubbed her breast (count 2) and put his hands down her pants onto her pubic region and rubbed her there (count 3). At the time of the alleged offences the complainant was aged 14 and the applicant was 39.
After hearing a plea in mitigation of sentence, the learned trial judge sentenced the applicant to 15 months’ imprisonment, with a non-parole period of six months. As a consequence of his conviction, the applicant became a registrable sex offender who has annual reporting obligations imposed on him for eight years. He now seeks leave to appeal against his conviction and sentence.
The appeal against conviction
The Crown and defence cases
The Crown case was that count 2 occurred after the complainant went into the house from the back garden to change out of her bathers. The applicant had hugged the complainant and touched her breast in a corridor outside her bedroom, which ran off the living room of the house. Count 3 was said to have occurred after the applicant followed TK into her bedroom and touched her pubic area. Immediately after these events occurred, TK complained to her sister that she had been touched by the applicant. She told her mother a short time later.
The defence case was that the assaults did not occur. It was said that the complainant was a troubled young girl who had made false allegations against the applicant because she was affected by alcohol and wanted to be the centre of attention at her older sister’s birthday party.
The Evidence
The relevant evidence is summarised below.
TK, the complainant
The party was held on a cold night on 8 October 2005. The complainant’s evidence-in–chief was that she was sitting around a fire under the pergola in the backyard of the house with her mother and some of her mother’s friends, including the applicant. She had a conversation with the applicant about swimming in the pool in the backyard. The applicant said he had been in another friend’s pool on a cold night and she did not believe him. He said ‘Do you want to make a bet’ and she agreed to. She said that if she went into the pool, he had to be in it two seconds later. She went into the house to get changed into her bathers, and did not see where the applicant was at that time.
TK said that after she had changed, she had asked her mother a few times if she could go into the pool. Her mother told her that she could not go swimming and she went inside to get dressed.
TK said that she walked through the sliding door from the pergola area outside the house into the lounge. She said that there was a ‘closed-in space’ which opened off the lounge, and that her sister’s room, the laundry, bathroom, toilet and her bedroom opened off that space.
She said the applicant ‘just come up to me and I just kind of stood back because I was in shock because I had no idea where he‘d come from, and then he started to hug me’. She said that the applicant hugged her by putting his arm around her and then put his hand up her bathers top and rubbed her breast. At that stage, she was standing with her back to her sister’s room and he was standing in front of her. She said she was in shock and ‘I just stood there frozen’. In response to a question about how long he touched her on the breast she said ‘roughly about a minute’. The jury members were not satisfied beyond reasonable doubt that this incident occurred, as they acquitted the applicant on count 2.
TK said she told the applicant that she wanted to go into her room and get changed. She walked into her bedroom and half shut the door, and the applicant followed her. The applicant came up behind her and hugged her and then put his hand down her pants and touched her pubic area and rubbed it for about 30 seconds.
The complainant said she told the applicant she had to get changed and he talked to her about the trophies on the wall. She said they were for netball and that she needed to get changed and he stopped and took his hand out of her pants. He went to walk away and then came back and moved forward to kiss her. She put her hand up and said ‘no’ and he said ‘I just wanted to give you a kiss on the cheek’. He did so, said ‘thank you for not getting me in trouble with your mum’ then left the room.
TK shut the door and got changed. She went out to tell her mother what had happened but her mother was with her friends, so she went and found her sister, who was in a grassed area in the backyard with her friends and her boyfriend. The complainant said she was crying and told her sister she had to talk to her.
She told her sister that the applicant had stopped her, put his hand up her top and down her pants and that he had tried to kiss her or had kissed her on the cheek. She could not remember whether she was inside or outside the house when she had first complained to her sister. After she had told her sister, they went into their mother’s room. They then went outside and sat down, then took another friend, Lauren, into the complainant’s room and told her what had happened. After that, the girls took their mother into the mother’s room and the complainant told her mother that the applicant had touched her. She gave her mother the same details as she gave her sister. They left the room as the applicant was leaving the party.
The complainant said she had had one or two cans of UDL vodka (a pre-mixed drink) at the party. At the time the applicant put his hands down her pants, she was wearing her bather bottoms and shorts. His hands went under both items of clothing and touched her skin.
TK was cross-examined about the fact that her mother had let her drink vodka. She said she was allowed to do so on special occasions, and that she had drunk vodka at parties at friends’ houses. She agreed that on other occasions her mother had collected her from parties when she was drunk. It was put to her that ‘she used to run away from home’, and she said she had done so once when she was 12 years old. She was asked if she was aware that her mother had attended parenting classes to try to work out how to manage her and she said she was. She denied having been ‘completely out of control’ at that time and said ‘I mucked up. I made mistakes. That’s not completely out of control’.
She admitted to having ‘wagged’ school to hang around with her friends for a couple of weeks when she was in year 8. She also said that at that time she had drunk alcohol with her friends in the evenings, and had lied to her mother about going to school. It was put to her that she was ‘prepared to lie to your mum when it suits you’ and she said ‘back then yes’. She agreed that she did drink until she was drunk and did drink on the streets. She denied that she had wanted to be the centre of attention at her sister’s birthday party.
The complainant was cross-examined about who was present when she had the conversation with the applicant about going into the pool. She said that when she was sitting with the applicant talking about the pool, her mother and her mother’s friend were present, as well as the applicant, who she thought was also talking to his sister-in-law, Michelle Sterchi. She said that Ms Sterchi, Sharon Courtney (the wife of policeman Sergeant Courtney), and Rikki Wells were there, but she could not be certain of who else was present. In particular, TK could not remember if the applicant’s wife or sister was sitting in the backyard around the fire.
She agreed that Sergeant Alan Courtney was in the living room when the applicant touched her breast in the corridor. When asked if Sergeant Courtney was watching television, she said he was asleep. She said that to get to the toilet from the pergola area, it was necessary to walk through the living area. She said that the applicant had touched her on the breast in front of her sister’s bedroom, which was directly opposite the toilet.
The complainant agreed that she had not called out to Sergeant Courtney for help when the applicant touched her on the breast because she was ‘in complete shock’. She agreed that he would have helped her if she had asked him to, and that she had made a report to police in February 2004 and had no reason to fear the police.
It was put to her by the applicant’s counsel that after she had changed in her bedroom, she had gone outside and sat beside the applicant. She denied that this had occurred. She agreed that she had first complained to her sister, and not to her mother.
The complainant was cross-examined about the circumstances in which the breast touching incident had occurred. In particular, it was put to her that her account of events was inconsistent with her evidence at the committal hearing. The relevant passage of cross-examination was as follows.
Counsel: Let me just take you back, if I may, to when you say Mr Scott touched you on the breast. I think you described that as happening in the course of a hug. Is that right?
Witness:Yes.
Counsel:Did he hug you from the front or from behind?
Witness:The front.
Counsel:The front?
Witness:Yes.
Counsel:Which hand did he use, did you say?
Witness:I can’t remember.
Counsel:You’ve said previously, have you not, it was the left hand?
Witness:Sorry. Can you repeat?
Counsel:You’ve said previously, haven’t you - not in this court, but elsewhere – that it was his left hand?
Witness:I can’t remember.
Counsel:Did you not say this? You were asked this question and gave this answer. ‘Sorry. In your statement you say he was using his left hand. Is that correct?’ Answer, ‘Yes’. Did you give that answer to that question?
Witness:Yes.
Counsel:So you’d previously said it was his left hand. You’d agree with that?
WitnessYes.
Counsel:Do you remember now which breast it was?
Witness:I stated here that it was my right.
Counsel: Did it go underneath your bikini top, did you say?
Witness:Yes, it did.
Counsel: You previously said that he started hugging you from behind. Isn’t that right?
Witness:That was when I couldn’t remember. That was at the committal hearing.
Counsel: But that’s what you’ve said, isn’t it?
Witness:Yes, I couldn’t remember. I tried to block it out of my life.
Counsel: You said that to the magistrate too?
Witness:Well, I have. It’s not something you want to remember.
Counsel: You, when you gave your evidence to the magistrate, gave that evidence on oath, didn’t you?
Witness:Yes.
Counsel: You were trying to be as truthful and accurate as you could be. Is that not right?
Witness:Yes, that’s true.
Counsel: Didn’t you say this to the magistrate in answer to this question: ‘What did he do?’ Answer, ‘He started hugging me from behind on the front and then he put his hand down my top and stuff’?
Witness:Yes.
Counsel: That’s what you said, wasn’t it?
Witness:Yes.
Counsel: So your memory when you gave the evidence to the magistrate, on your oath when you were trying to be truthful and accurate, was that he’d hugged you from behind?
Witness:I was trying to remember it from my statement.
Counsel: Is that that what you said the magistrate, however?
Witness:Yes, I’m pretty sure that I did.
Counsel: So what you say now is that he hugged you from behind or from the front?
Witness: I would say it was from the front.
Counsel: From the front now. Did he say anything when he hugged you?
Witness:He said that he didn’t want me to get into trouble from Mum.
Counsel: When he put his hand on your breast or under your breast did his other hand go anywhere?
Witness:I don’t know. I don’t know what he did with his other hand but I’m pretty sure it wasn’t on me.
Counsel: This was a situation where he picked you up, wasn’t it?
Witness:No, he never tried to pick me up.
Counsel: He made a joke with you about throwing you in the pool?
Witness:That was outside. He didn’t pick me up outside.
Counsel:I’ve sparked a recollection, have I, that there was some talk about throwing you in the pool?
Witness:No, there wasn’t. I said to him that if I jumped in the pool he had to be two seconds after to prove that he went into the Courtneys’ pool on a very cold night.
Counsel: You say that there was no joking inside about him throwing you in the pool?
Witness:No.
Counsel: You’ve said in this courtroom that his hand was on your breast for how long?
Witness:I’d say about a minute.
Counsel: A minute?
Witness:Yes.
Counsel: What was happening during this minute that his hand was on your breast?
Witness:He just kept repeating ‘Don’t get me into trouble with your Mum,’ or something along those lines.
Later in cross-examination, the complainant was again questioned about her memory of the events in issue.
Counsel: Is this the situation, that he touched you in the area to the side of one of your breasts?
Witness:No, it was on the front.
Counsel: Let me suggest to you that it was from behind?
Witness:I was reading my statement last week.
Counsel: I want your memory, thanks. What’s your memory?
Witness:I have to go by statement on that part.
Counsel: So you are telling us that you don’t have a memory now how it was he grabbed you?
Witness:No, I don’t know whether it was behind or the back and I just relied on my statement for that part.
Counsel: When did you refresh yourself on your statement?
Witness:When did I read it again?
Counsel: Yes?
Witness:Today and yesterday and about a week ago. I read it a couple of times today.
Counsel: It’s no criticism, but that was to refresh your memory about what you’d said. Is that right?
Witness:About what had happened.
Counsel: You say you don’t have a memory now whether he hugged you from the front or from behind?
Witness:Yes, that’s correct.
Counsel: When he touched you in the area of your breast, did you stiffen up?
Witness:I can’t remember.
Counsel: You think it is pretty likely, however, that you would have stiffened up?
Witness:I don’t know.
Counsel: Did his other hand touch you on your thighs or lower legs?
Witness:No.
Counsel: Let me suggest this to you: his hand didn’t go under your bikini top?
Witness:No, it did go up my bikini top.
Counsel: That he didn’t touch you inside your pants at all?
Witness:No, he did go down my pants.
Counsel: What’s happened is that when he touched you on your top, you’ve misunderstood what it was he was doing?
Witness:No, he put his hand – clearly put his hand up my top.
Counsel: What you have then done is gone and complained to your sister and embellished and exaggerated what it was or where it was that he touched?
Witness:No, that didn’t happen at all.
Counsel: Indeed, the only place that you were touched was to the side of your breast over your clothes?
Witness:No, it was under my bikini top and it was in the front, not the side.
Counsel: Have you had a think about it over lunch, about who was sitting outside when you got outside?
Witness:No, I didn’t think about it at all.
Counsel: Can you tell us then, whether you thought about [it] or not, who was sitting outside when you got outside?
Witness:When I come outside from after it happened?
Counsel: Yes?
Witness:I’m pretty sure, I can’t be a hundred per cent, that the same people were still there, except for obviously Wayne.
Counsel: You would have it that you didn’t sit beside Wayne.
Witness:No, I didn’t.
In re-examination, the complainant said that she was in year 8 when she had wagged school and was now in year 12. She had not stayed back at all while she was in High School.
TA, the complainant’s sister
TA said that on the evening when the alleged offences occurred, she was sitting outside at about 9.00 to 9.30 pm when her sister asked if she could speak with her. The pair then went into their parents’ room. Her sister was crying. She said that the applicant had touched her. TA asked where, and TK put her hand on her breast and said ‘underneath’, then she said ‘he touched me there’ and touched her pubic area.
TA told her sister that she was going to tell their father but the complainant said she should not do so, because the complainant didn’t want to make a scene and ruin the birthday party. They went back outside and the complainant sat next to her on the steps. Later, they went back into her parents’ room and their mother came into the room. They told their mother, TA’s friend Lauren, and TA’s boyfriend what had happened. In cross-examination, TA agreed that her sister only told their mother about the incident when TA had insisted that she do so.
MT, the complainant KA’s mother
MT, a police woman, said she saw TK at the party, sitting with a group of people round the fire. She heard a conversation about a pool and saw TK go inside and come out with her bathers and jacket on. TK was told she wasn’t allowed in the pool and went back inside. The next time MT saw the complainant was when she was sitting on a step cuddling her sister and they were both crying. MT then saw the sisters get up and go inside.
MT was not cross-examined about the movements of the applicant or the complainant on the night of the party.
TMA, the complainant TK’s mother
In her evidence-in-chief, TMA said that she saw TK after she had changed into her bathers and told her to go back inside because she wasn’t allowed to go in the pool. The next time she saw the complainant, she was sitting on the steps of the pergola with her sister and looked as if she was crying.
TMA spoke to TK in her bedroom later in the evening and TK said that the applicant had touched her on the ‘boob’, put his hands down her pants and tried to kiss her. The complainant was crying and distressed. After they left the bedroom, TMA did not know where the complainant went. The applicant and his wife left shortly afterwards, and as he was leaving, the applicant whispered ‘I’m sorry’ in TMA’s ear and kissed her on the cheek.
In cross-examination, TMA said that her daughter had had one or two vodka drinks that night, and that she was not concerned that her daughter had a drinking problem. She agreed she had picked up the complainant when she was drunk two years earlier, when she was 12. She agreed that the complainant had occasionally wagged school when she was 12, and that she had done a parenting course to get help her to deal with her daughter. She said she had bought four vodka cruisers for the complainant on the night of the party. She thought it was acceptable for her daughter to drink in their home, and had sought permission from parents of the other teenagers who were drinking at the party.
She said that when she was sitting outside, the applicant, his sister Michelle, his sister-in-law Michelle Sterchi and his wife Carol were there. She was not cross-examined about whether the same people were present after the complainant had changed out of her bathers.
Sergeant Alan Courtney
Alan Courtney is a Sergeant of Police at Oakleigh Police Station, who went to TA’s birthday party with his wife and two children. The party was being held in the backyard, but he went inside to watch Fox Sports on television with the complainant’s father.
In his evidence-in-chief, Sergeant Courtney said that he saw the applicant and complainant come into the lounge room at one point and they were talking about having a swim. He described what happened next:
Witness:I saw Wayne and [TK] walk down the corridor which – if I’m sitting here looking at the television – it was to my left. The corridor went down that way. They went out of sight.
Counsel:Do you know what’s down the corridor?
Witness:There’s a toilet and a couple of bedrooms – the kids’ bedrooms. A short time later – it would only be - it only seemed like moments, I didn’t really try to make a record of the time, but it didn’t seem long – [TK] came out wearing a bikini top and boxer shorts. Wayne followed her and they went back out towards the pool area to have a swim. At that stage I do remember [TK] had been drinking Bacardi or some little alcohol drink that they make – I can’t remember the brand of it. She was giggling, and to me appeared slightly affected by the alcohol - not, I wouldn’t say drunk, but you could tell she’d had something to drink. She was giggling, she was smiling, everything just seemed okay. They were going out … and soon enough she came back in and I heard her saying that it was too cold to have a swim and that she wasn’t going to go and have a swim.
Counsel:Where did she go when she came back in?
Witness:I can’t recall exactly where she went. I assume she would have gone back up towards the bedroom. I don’t have a specific memory of it other than to say that logic points it in that direction because I later found that her mum told her to go and put warmer clothes on.
Counsel:Did you see Wayne Scott again after the time when [TK] came back in?
Witness:No. I don’t have a recollection of seeing Wayne come in after that.
Shortly afterwards, Sergeant Courtney went with his son to the front room to lie on a mattress until his son fell asleep.
The next day, Sergeant Courtney was working in his front garden when the applicant and his wife arrived and asked for advice about what to do regarding allegations made against the applicant. Sergeant Courtney described their conversation as follows:
Witness:Wayne first repeated the allegations that were levelled against [him] and then I spoke to Wayne. I said to him words to the effect, ‘Well, what happened last night?’ He said that he’d been drinking Beam and was drunk and that [TK] had suggested they go in for a swim and that he went into – when she was going to get changed – went into the room. They were going to go for a swim, but [TK] wasn’t allowed. When she was in there getting changed he went to tickle her and accidentally touched her breast. He said sorry. I don’t recall if she said anything back to him, but in effect everything was all right, an apology was made and then they went out to go in the pool or something like that. They weren’t allowed in the pool. He said that later on she started to cry – this was much later in the night – she started to cry and made more serious allegations.
Counsel:Did he, apart from tickling her and accidentally touching her breast, say anything else happened?
Witness: Not that I can recall at this stage, no.
In cross-examination, Sergeant Courtney said he spoke to the applicant as a friend when he visited, and did not take notes of the conversation. He conceded that it was possible that the applicant had said that he’d ‘had a few’ drinks, rather than that he was drunk.
The applicant
In his evidence-in-chief, the applicant said that he was sitting in the pergola area with the complainant and his sister, Michelle. He was aware of some talk about the nearby pool and heard mention of a dare. The complainant got up from her chair and went inside. The applicant said that he ‘[did not] know exactly where she was going but it was made clear when she came out in her [bikini]’. Later, the applicant said that it was apparent from the conversation that the complainant went inside to get changed into her bathers.
Around this time, the applicant, who suffers from irritable bowel syndrome, started to experience an upset stomach and went inside to go to the toilet. On his way to the toilet, he ran into the complainant and met her ‘just inside the lounge room area beside the hallway’. (I will refer to this as the ‘first meeting’.) The applicant said ‘You’d better not go in the pool, your mum will kill me’, or words to that effect. The applicant went to the toilet; he did not know where the complainant went, but thought that she went outside to get her mother’s permission to go swimming.
When the applicant came out of the toilet, he saw the complainant ‘just walking back into where her bedroom was’. The complainant told him that she was not allowed to go swimming. She continued to walk into her bedroom, and suggested that they play a practical joke on her mother. The applicant’s account of what followed is set out below:
Witness:I said, ‘I’ve got a better idea,’ and then I stepped into her bedroom, went to pick her up. My idea was to carry out, pretend to put her in the pool just as a joke.
Counsel: You’ve just indicated with your hands, just for us again - - -?
Witness: What? As I stepped into the bedroom I put my hands like that, this hand went around this side of her, I [went] to pick her up, my hand rested against her breast and I went to pick her up, and as I went to pick her up my memory is that she stiffened up a bit and I took that as she was uncomfortable, so I released - - -
Counsel:Just stop there. I just want to describe for the transcript what you were doing. You had your left hand up, your right hand down, and I think you indicated with your left hand on your ribcage area?
Witness:Yes.
Counsel:Just to put it beyond doubt, which part of her did you touch with your hand or hands?
Witness:I realised that my hand was over the top of her bathers on the bottom part of her breast.
Counsel:Yes, and you’re indicating with your left hand?
Witness:Yes.
Counsel:What about your other hand?
Witness:My right hand was going down around her legs to pick her up to start carrying her out.
Counsel:You’ve told us that she stiffened up and you realised that she was uncomfortable?
Witness:Yes, that’s true.
Counsel:What was the next thing that happened?
Witness:I stepped back. I said, ‘sorry about that,’ and I leant forward, gave her a kiss on the cheek and I walked out of the bedroom.
Counsel:What was the kiss?
Witness:It was just a way to say sorry that she felt uncomfortable.
Counsel:You’ve gone outside. Did you see [TK] again?
Witness:Yes, as I went outside [TK] was there and getting changed for a little while. She came back out, she sat beside me. It was only for a brief moment because I got up and I walked out through the garage to outside.
The applicant agreed that he might have touched TK on the breast, but said that it occurred accidentally in the course of him going to pick her up in her bedroom. He disagreed that he had touched her on the breast outside her bedroom. He denied putting his hand down her pants and touching her in the pubic area.
The applicant said that he then returned to the group by the fire outside and sat down for a short time before his wife told him she wanted to leave the party. He denied having put his hand under the complainant’s bikini top at any stage, or putting his hand down her pants.
In his evidence-in-chief, the applicant said that Sergeant Courtney had got the thrust of their conversation correct. However he said that, contrary to Sergeant Courtney’s evidence, he did not follow the complainant back out into the pool area after the first meeting – he went on to the toilet. He also denied telling Mr Courtney that he had been drunk on the night of the party, and said that he had instead told him that he had had a couple of drinks.
The applicant said that he had told the complainant’s mother that he would ‘see her later’ when he was leaving the party. When cross-examined, the applicant denied having told the complainant’s mother that he was sorry.
In cross-examination, the applicant said that he had ‘five cans [of Jim Beam] throughout the night’. He disagreed that he followed TK when she went inside to change into her bathers, but said that she had come out of her bedroom as he was going towards the toilet. The following passage relates to the first meeting:
there’s an area, I take it, past the lounge room where the toilet and bedroom run off a hallway of some description. Is that right?---Yes. The lounge room goes into a corner. There’s a little hallway. Its probably about two or three paces before the toilet door.
You didn’t meet her at that stage in that area?---It was sort of right on the corner of that and the lounge room.
The applicant said that he then went into the toilet and that when he came out he had met the complainant in this ‘area outside the lounge room’, as she was heading back into her bedroom. He had stepped into her bedroom and picked her up. That was when he had accidentally touched her breast on the side of her bikini.
Carol Scott, the applicant’s wife
Carol Scott gave evidence that while she was sitting around the potbelly fireplace, she became aware of a discussion about someone going swimming. Also present were the applicant, her sister-in-law Michelle Penny, and TMA’s sister-in-law. Rikki Wells and a woman called Sharon were sitting a bit further away, but also in the vicinity of the fire. The complainant had asked the applicant if he would go swimming with her and he had responded ‘I’m always up for a dare’, or words to that effect.
The complainant left the group and later came out in her bathers. TMA told TK that it was too cold to go swimming, and asked her to go inside and change. TK then went inside.
When asked where the applicant was from the time TK first went inside to change until she went back inside at her mother’s request, Mrs Scott replied:
They both sort of crossed paths. Wayne went into the toilet, he’s got an irritable bowel and he said his stomach was playing up so I think, in fact, when [TK] came out in her bathers, Wayne was actually in the toilet.
After the complainant had changed back into her clothes, she rejoined the same group of people sitting around the fire, which included the applicant. About half to three quarters of an hour later, Rikki Wells asked ‘Is that [TK] over there, crying, on the step,’ and TMA said ‘It’s probably just the girls having a deep and meaningful conversation’. Mrs Scott observed that TK seemed to be crying. Mrs Scott said that she and her husband and children left the party between 11 and 11.30 pm.
In cross-examination, Mrs Scott said that she saw the applicant and complainant cross paths in the living room as the applicant went inside to go to the toilet (the first meeting, as I have described it above). Mrs Scott did not think that anything was said between the applicant and the complainant – they simply walked past one another.
Mrs Scott said that she could specifically remember the complainant rejoining the group once she was dressed ‘because she sat down and picked up an alcohol drink. Her Cruiser was under her chair’. The complainant remained sitting with the group for half an hour or forty minutes.
The Grounds of Appeal
The two grounds of appeal against conviction were that
1The verdict of guilty on count 3 is inconsistent with the verdict of not guilty on count 2.
2. In all the circumstances the verdict of the jury is-
(a) unsafe and unsatisfactory;
(b)unreasonable or cannot be supported having regard to the evidence;
and in particular, a reasonable jury properly instructed ought to have had a reasonable doubt as to the guilt of the applicant.
Ground 2
In relation to the second ground of appeal, counsel for the applicant relied on six matters which were said to make the jury verdict unsafe. First, it was said that this was an ‘oath against oath’ case, and that there was no reliable evidence casting doubt on the applicant’s account of the events which occurred at the party.
Secondly, the complainant’s evidence about the applicant touching her breast was discredited by the prior inconsistent statement she made about count 2, and her version of the events of the evening was inherently improbable. Counsel initially submitted that the complainant’s evidence that the applicant had touched her breast while she had her back to her sister’s bedroom, meant that the assault must have occurred in the living room, in full view of the people sitting under the pergola. In the course of the hearing, however, counsel conceded that TK’s evidence was that count 2 had occurred while she had her back to the door of her sister’s room, in the blind passage off the living room, where she could not be seen from outside the house. Sergeant Courtney’s evidence was that he could not see into that area from his position in front of the television, and nor could the people sitting outside under the pergola have seen into that area.
Nevertheless, counsel said it was improbable that the applicant would have assaulted the complainant when Sergeant Courtney was only about three metres away watching television, and when people were sitting just outside the living room. Counsel said that the inconsistency between Sergeant Courtney’s evidence that he had been watching television in the living room and the complainant’s evidence that he had been asleep threw doubt on the complainant’s account of the events of the evening.
Thirdly, counsel submitted that Sergeant Courtney’s evidence that he had seen the applicant follow the complainant inside, was inconsistent with the complainant’s account of the sequence of events which led up to the assault in her bedroom. It was said that Sergeant Courtney’s evidence was consistent with the applicant’s evidence that he had accidentally touched the complainant’s breast during horse-play.
Fourthly, it was said that the complainant was a troubled girl who had been drinking before she made the accusations against the applicant. Counsel submitted that the complainant’s proposal to go into the pool on a cold night was attention-seeking behaviour. Her allegation that she had been assaulted was simply another example of such behaviour. Counsel for the applicant said that when it was put to the complainant’s mother that the only reason TK would have wanted to go into the pool on a cold night was to seek attention, the mother had agreed. Counsel said that the fact that the complainant had not wanted her sister to tell her mother of the alleged assaults supported the view she was simply engaged in attention-seeking behaviour, and did not want the matter to go any further.
Fifthly, counsel relied on the applicant’s wife’s evidence that TK had sat down beside the applicant for half to three quarters of an hour after she came outside, having changed out of her bathers.
Counsel for the Crown submitted that his Honour had carefully directed the jury on all relevant matters, and the matters relied upon by counsel for the applicant had been put to the jury at the trial. There was ample evidence on the basis of which the jury could have convicted the applicant.
In my opinion, it was open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of count 3.[1] I address each of the applicant’s counsel’s submissions on this matter in turn.
[1]M v R (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
First, many, if not most, alleged sexual offences cases involve ‘oath against oath’ evidence. This is not surprising, because such events usually occur in private. The fact that a claim of sexual assault involves oath against oath evidence is not fatal to the Crown case; indeed, the requirement that complaints of sexual assault be corroborated has not been the law for many years.
The complainant’s evidence received support from other evidence, some of which I refer to in more detail below. In particular, the complainant told her sister that she had been sexually assaulted by the applicant immediately after the alleged events occurred. I also note that his Honour drew the jury’s attention to the fact that the case was one of oath against oath, and to the evidence of the applicant’s wife supporting his version of events. His Honour gave appropriate directions to the jury on the presumption of innocence.
Secondly, the fact that the complainant did not call out when the alleged assault occurred need not necessarily have raised a reasonable doubt in the minds of jury members. Her explanation for not asking Sergeant Courtney for help was that she was ‘in complete shock’ and scared at what had occurred. It was not inherently incredible that a 14 year old girl who was assaulted by a 39 year old family friend would be in shock while the assault was occurring and at a loss as to what she should do. Further, TK told her sister, and then her mother, that she had been touched by the applicant immediately after the alleged events occurred.
Thirdly, the evidence does not clearly support the applicant’s account of two meetings between himself and the complainant inside the house, the first meeting occurring after she had changed into her bathers and the second when she went back to change out of them. Although there are inconsistencies in the evidence of the applicant, the complainant and Sergeant Courtney as to the sequence of events, some aspects of the complainant’s evidence coincide with the applicant’s evidence. The complainant said that she did not have any idea where the applicant had come from when he encountered her in the corridor. This was consistent with the applicant’s evidence that he had been to the toilet and had emerged from it shortly before he encountered the complainant. Sergeant Courtney testified that he saw the applicant follow the complainant into the house when she went in to change into her bathers, but that he did not see the applicant again. The applicant’s evidence was that he did not follow the complainant into the house when she went inside to change into her bathers, but that their paths crossed shortly afterwards.
Nor do I think much can be made of the inconsistency between Sergeant Courtney’s evidence that he was watching television and the complainant’s statement that he was asleep. The jury may well have taken the view that Sergeant Courtney was both watching television and dozing, or that even if this was not the case, the complainant believed that he was asleep at the time.
Fourthly, in considering the defence claim that the complainant was seeking attention by making these allegations, the jury also had to take account of TA’s evidence that the complainant did not want TA to tell their father of the assault because she did not wish to ruin the party, and that the complainant initially did not want her to tell their mother. Further, even if the jury considered that the complainant was seeking attention by going into the pool, it does not follow that they were required to regard her allegation of sexual assault as fabricated.
Fifthly, the applicant and his wife were the only witnesses who testified that the complainant returned to sit down beside the applicant after she had changed out of her bathers. This was denied by the complainant. The applicant said that the complainant had sat down beside him, but only for a ‘brief moment’. The applicant had walked down the side of the house and out into the street because his stomach was troubling him. The applicant had then returned to the fire for a short time and left the party shortly afterwards.[2] The complainant’s mother, who was said to be sitting in the group with the applicant and his wife, was not cross examined on this issue, although in her evidence-in-chief, she said that the first time she saw the complainant after she had gone inside to change out of her bathers, was when the complainant was sitting on the steps of the pergola with her sister, TA.[3]
[2]In relation to Mrs Scott’s evidence on this point, see [50] above.
[3]This evidence is consistent with the account given by MT.
For these reasons, ground 2 is not made out.
Ground 1
Counsel for the applicant submitted that the jury’s acquittal of the applicant on count 2 reflected the view that TK was not a credible witness, because of the conflict between her description of the breast touching incident at the committal hearing and at trial. It was said that TK’s credit was ‘indivisible’, so that it was not open to the jury to treat her as an unreliable witness in relation to count 2, while at the same time accepting her evidence as to the allegation that the applicant had followed her into her bedroom and touched her pubis (count 3). The events were closely connected in time, so that if the jury members were not convinced that count 2 had occurred, they could not have concluded beyond reasonable doubt that the applicant was guilty of count 3. It was further submitted that the ‘similar fact’ evidence relating to count 1 – on which the applicant was also acquitted – may have impermissibly infected the jury’s reasoning.
Counsel said that his Honour had been required to give the jury a Black direction,[4] because of their delay in reaching a unanimous verdict. The fact that they then acquitted the applicant on count 2 and convicted him on count 3, showed they must have reached a compromise verdict.
[4]Black v R (1993) 179 CLR 44.
Counsel for the respondent submitted that there was no inconsistency between the applicant’s acquittal on count 2 and his conviction on count 3. The jury might have accepted the applicant’s evidence that he accidentally touched the complainant’s breast, or considered that they could not be satisfied beyond reasonable doubt as to the breast touching incident, but nevertheless have been satisfied that count 3 occurred. Such an approach would have been consistent with his Honour’s separate consideration direction. Alternatively, the jury might have taken a merciful view of the facts and decided to convict the applicant on only one of the counts.
Counsel said that there was no basis for the submission that the verdicts on counts 2 and 3 were the result of compromise. The jury retired to consider its verdict at 1.04 pm on the Friday afternoon and returned to the court a little more than three hours later, at which time they were given a Black direction. The jury members chose to return on the following Monday to recommence their deliberations. Counsel said it had taken the jury only about two hours to reach a unanimous verdict on Monday, when they returned in a refreshed state.
The proposition that the conviction must be set aside, because the complainant’s credit was ‘indivisible,’ cannot be sustained. In R v Ware,[5] this Court rejected the argument that the credibility of the witness ‘is an homogenous and indivisible whole’,[6] so that if the applicant’s guilt on one count is not established beyond reasonable doubt, the complainant’s evidence on other counts is also to be regarded as insufficient for a conviction.
[5][1997] 1 VR 647.
[6]Ibid 650.
In MacKenzie v R,[7] the High Court set out the principles to be applied in determining whether verdicts are inconsistent. In that case, the appellant, a solicitor, was convicted of one count of perjury under s 327(1) of the Crimes Act 1900 (NSW), which made it an offence to knowingly make a false statement on oath concerning a matter which was material to a judicial proceeding. He was acquitted of an aggravated form of this offence, which applied where a person committed perjury intending to produce the conviction or acquittal of a person charged with a serious offence. The High Court considered a number of explanations for the different verdicts and concluded that the jury had approached its task in a proper manner and had not compromised its function.
[7][1996] 190 CLR 348.
In their joint judgment, Gaudron, Gummow and Kirby JJ said that, in deciding whether jury verdicts on separate counts were factually inconsistent, an appellate court must reconcile the respect which is owed to a jury as the ‘constitutional’ finder of fact, with the requirement to ensure that justice is done in circumstances where verdicts on different counts could not logically stand together. The test to be applied in determining whether verdicts are factually inconsistent is whether a reasonable jury, which had applied its mind to the facts of the case, could have arrived at the conclusion under challenge. However, in applying this test, respect for the jury’s function has made courts reluctant to accept a submission that verdicts are inconsistent.
Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman,[8] in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
‘[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.’
We agree with these practical and sensible remarks.[9]
[8](1987) 44 SASR 591, 593.
[9]MacKenzie v R [1996] 190 CLR 348, 367- 368 (citations omitted).
Their Honours went on to say that there was a residue of cases in which the different jury verdicts represented ‘an affront to logic and common sense’[10] which suggested that the jury had compromised its duty.
[10]Ibid.
This is not such a case. A reasonable jury could have reached different verdicts on counts 2 and 3, for a number of reasons. Having heard the Judge’s direction to consider each count separately, the jury may not have been satisfied beyond reasonable doubt that the applicant touched TK’s breast in the manner described, but have had no such doubt in relation to count 3. As I remarked in R v RTM,[11] it would be perverse for the law to require the jury to be directed to consider each count separately and then to overturn the jury verdict because it had been reached by precisely that process.[12]
[11][2006] VSCA 170.
[12]Ibid [33].
The inconsistency between TK’s evidence at committal and at trial as to the manner in which the breast touching incident occurred, may have engendered reasonable doubt in the jury’s mind. It may have led the jury to consider that the applicant was honestly mistaken or confused as to this event, but not about the fact that he followed her into her bedroom and put his hand down her pants.
The jury might also have been satisfied beyond reasonable doubt that the applicant did touch TK’s breast, as she said, but not been satisfied beyond reasonable doubt that he did so intentionally. Such a verdict would have been consistent with the applicant’s evidence that he did, in fact, accidentally touch the complainant on the breast. At the same time, they may have had no reasonable doubt about his intention when he followed her into the bedroom and touched her pubic area.
Finally, given the fact that count 3 was said to have occurred on the same evening and only shortly after count 2, the jury might have considered that justice was met by convicting him of count 3 only.
For these reasons, the grounds of appeal against conviction are not made out.
The appeal against sentence
Sentencing remarks
In his Honour’s sentencing remarks he noted that the original presentment containing the count on which the applicant was convicted contained four additional counts concerning two other complainants. That presentment had been severed and the prosecution led no evidence on those four counts. His Honour also noted that the applicant had been tried on another presentment containing 11 counts relating to five additional complainants. He said that the applicant was found not guilty of those 11 counts ‘either by jury direction, Prasad invitation or the entering of verdicts of not guilty pursuant to s 391 of the Crimes Act’.[13]
[13]Reasons [5].
During the plea hearing, counsel for the applicant submitted that his Honour should draw no inferences adverse to the applicant in relation to any of the offences of which he had been acquitted, because this would devalue his acquittals. Counsel for the Crown did not disagree.
His Honour then raised with counsel whether he was required to sentence the applicant on the basis that the behaviour leading to his conviction on count 3 was aberrant and out of character. Reference was made to some material in the depositions relating to a relationship he had with a young girl when he was 24, which began when she was 15 and went on after she turned 16. The applicant was acquitted of charges arising out of that relationship. In discussion with counsel, his Honour said that the Crown’s point might be that the applicant had had another interest in a young person, which counted against the submission that count 3 was an isolated example of aberrant activity, even if the behaviour involving the other young girl was not illegal. Nothing more was said on that matter.
In his sentencing reasons, the learned judge stated that he paid no regard to the charges of which the applicant was acquitted, that he accepted defence counsel’s submission that he must view the offence of which the applicant was convicted as a single, isolated incident and that he drew ‘no conclusion adverse to [the applicant], concerning any propensity to sexually offend against young girls’.[14]
[14]Ibid [11].
His Honour noted the age difference between the applicant, who was 39, and the complainant, who was only 14. He referred to the fact that the applicant was able to gain access to the complainant because of the relationship between his and her family. His Honour said that the offending did not involve direct touching of the complainant’s genitals, but that ‘it is important not to subject the touching to a pedantic and precise mechanical analysis of the contact. The offence needs to be seen in its entire context’.[15]His Honour said that, given the presence of adults in the house and of a police officer nearby, the touching was ‘very audacious’. He said that he considered it appropriate ‘to describe the nature of the sexual touching in the circumstances as they were, as predatory’.[16]
[15]Ibid [13].
[16]Ibid [15].
His Honour took account of victim impact statements from the complainant, her sister and her mother, and referred to the fact that the complainant had been assaulted in the privacy of her bedroom. He noted that the complainant had regarded her room as soiled and had had the furnishings and some fixtures replaced.
His Honour then referred to the personal circumstances of the applicant as follows:
You are now 41 and work as a plant operator. Your wife gave evidence on the plea and on your trial. Your daughter gave evidence on the trial. Mr Priest submitted that I should give considerable weight to the fact that you have already suffered punishment. Exposure of the current offence led to the investigation and laying of charges concerning other allegations. The police attended your house concerning the subsequent allegations, very early in the morning. You spent 36 hours in custody. You were initially subject to strict bail conditions which prevented contact with your parents. Your enjoyment of social and sporting activities was curtailed or stopped and DHS became involved and your family was scrutinised, to ensure there was no molestation of your children. I accept that all of this would have been very traumatic for you and your family. You and your family have been subject to abuse and threats, and you were forced to change your job. I accept you have undergone much since the disclosure of the current offence and defending the charges has cost you financially.
You have an 11 year old son who has spina bifida; you and your wife share the care of this child. If you are gaoled your wife will be left alone with this burden. I accept that this hardship is relevant to penalty. I accept that to many of your friends, you are regarded as a decent and generous person. You clearly have the support of your wife and children. It is obvious that your wife is struggling to come to terms with the jury verdict. [17]
[17]Ibid [19]-[20].
The learned sentencing judge accepted that the disclosure of the offence meant that the applicant would be under scrutiny by others in the future and that this reduced the risk of further offending. However, he said it was difficult to make any definitive findings about the applicant’s future conduct. His Honour said that general deterrence was a very important consideration in the circumstances of this case and that it was important to impose a sentence that appropriately denounced the applicant’s behaviour. He said that he had concluded that the only sentence appropriate for the applicant’s offending was a term of immediate imprisonment. As I have said, the applicant was sentenced to 15 months’ imprisonment with a non-parole period of six months.
Counsel’s submissions
Counsel for the applicant submitted that his Honour had imposed a manifestly excessive head sentence and non-parole period. Counsel said that, although his Honour would have ‘done his best’ to ignore the fact that the applicant had been charged with sexual offences against a number of young girls, the sentence which he had imposed showed that he must have been influenced by those charges.
Counsel submitted that the applicant’s sole conviction was for an offence which was at the bottom end of the scale of seriousness, and that when the applicant’s good character was taken into account, along with his family circumstances, a lower sentence should have been imposed.
Counsel also submitted that his Honour should have given greater weight to the fact that the applicant had suffered immensely as a result of being charged, had very strict bail conditions imposed upon him and that, as a result of the accusations made against him, the Department of Human Services had investigated his relationship with his children. He had been labelled a paedophile in the area in which he lived, and had been the subject of death threats and phone harassment. His children had also been traumatised by these events
Counsel also said that his Honour’s description of the applicant’s behaviour as ‘predatory’ amounted to a specific sentencing error, because this was an offence which occurred on the spur of the moment and had not been preceded by a prolonged period of grooming or planning.
Counsel for the Crown submitted that the offence was an audacious one in which the complainant was targeted by the applicant. The sentence imposed was lower than the median term of imprisonment imposed on those who received sentences of imprisonment for this offence, even though the applicant was not entitled to a discount for pleading guilty. His Honour’s sentencing remarks showed that he had carefully considered the character and antecedents of the applicant, hardship to his family and the other mitigating factors. It was necessary for his Honour to give considerable weight to both general and specific deterrence, because of the betrayal of trust involved in the offence, the fact that the applicant was a family friend of the complainant, and the age difference between the applicant and the complainant, who was aged only 14.
Conclusion
In my opinion, the sentence imposed was not manifestly excessive. As counsel for the Crown submitted, the sentence was lower than the median sentence of imprisonment imposed for an offence of this kind.[18] Although the applicant was acquitted of two of the three counts, he was not entitled to a discount for a guilty plea in relation to the offence for which he was convicted. As his Honour remarked, the applicant offended against a 14 year old girl, who was a friend of his family. In my view, it was appropriate for the learned sentencing judge to give considerable weight to specific and general deterrence.
[18]Sentencing Advisory Council, Sentencing Snapshot No 24: Sentencing Trends for Indecent Act with a Child Aged Under 16 in the Higher Courts of Victoria, 2001-02 to 2005-06. Over the five year period in which the sentencing statistics were collected, around four in ten people received a period of imprisonment, with younger people less likely to be sentenced to a term of imprisonment. The median term of principal imprisonment was one year and six months.
I accept that the applicant has suffered in a number of ways as a result of being convicted of this offence, and of being charged with other offences of which he was acquitted. Sadly his family, including his children, have also been affected. His wife will experience difficulties because she will be unable to keep up mortgage payments while he is in prison, and she will carry the burden of having to supervise their son when he changes his urinary catheter. However, all of these matters were taken into account by his Honour in the exercise of his sentencing discretion.
The question arises whether his Honour’s use of the word ‘predatory’ to describe the offending behaviour amounted to a specific sentencing error. The term is defined in the Oxford dictionary to mean:
of, pertaining to, or involving plunder, pillage or depredation; ruthlessly acquisitive, rapacious, exploitative; sexually rapacious or exploitative; of business practice: unfairly competitive or exploitative, esp. so as to facilitate takeovers.[19]
[19]Shorter Oxford English Dictionary (6th Ed, 2007) 2321.
In appellate decisions, the word has generally been used to describe offences against multiple complainants involving some element of premeditation, although reference has also been made to the vulnerability of the victim, the existence of a relationship of trust and/or the fact that the offence occurred in a context where the victim expected to be safe.[20] In R v Fuller-Cust,[21] the appellant was an Aboriginal man with a very difficult childhood who had committed multiple sexual offences against two victims. Eames JA said that
[t]he applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who is likely, if free, to prey on members of the public at large ... The applicant's attacks were upon persons with whom he had what he considered to be a relationship (using the term very broadly) and [were] triggered by factors deeply embedded in his past, coupled with a fear of rejection.[22]
[20]DPP v Foot [1999] VSCA 147, [20] (Phillips CJ) (pre-meditated offending against two young girls in the toilet at their primary school); DPP v Riddle [2002] VSCA 153, [30] (Chernov JA) (several children offended against over 17 years, involving serious breaches of trust); R v D (2003) 139 A Crim R 509, 518(Atkinson J) (several young complainants in circumstances where they were entitled to feel safe); R v Weldon [2006] QCA 504, BC200610017, [16] (Keane JA) (multiple complainants and betrayal of parental trust); Goldsmith v Tasmania [2006] TASSC 86, BC200608712, [8] (Slicer J) (multiple counts of offending against adolescent boys in youth organisation, involving breach of trust).
[21](2002) 6 VR 496.
[22]Ibid 535.
Although the word ‘predatory’ is generally used to describe more serious offending than the offence committed by the applicant in this case, it is an adjectival description of conduct, rather than a legal term of art. It is unfortunate that his Honour used the expression in this case, but in the context in which he did so it is apparent that he meant that the offence was ‘audacious’ and involved a breach of trust. The learned judge specifically said that he had accepted counsel’s submission that count 3 must be treated as a single, isolated incident. Having regard to his Honour’s sentencing remarks as a whole, and to the fact that the sentence
imposed was well within the range imposed for such an offence, I would not accept the submission that this amounted to a specific sentencing error, or that it meant that the sentence imposed by his Honour was affected by the fact that the applicant had been charged with other sexual offences.
For those reasons, I do not consider that his Honour made a specific sentencing error in describing the offence as ‘predatory’.
However, even if I am wrong in that view, I would not change the sentence imposed by his Honour. I consider that the sentence passed was well within his Honour’s sentencing discretion, having regard to the nature and circumstances of the offence, and taking account of the mitigating factors on which the applicant relied. I would therefore also dismiss the application for leave to appeal against sentence.
REDLICH JA:
The primary argument relied upon by the applicant in his appeal against conviction was that the verdict was unsafe and unsatisfactory. Notwithstanding counsel for the applicant’s careful and earnest submission that the evidence was insufficient to sustain the conviction I concluded, substantially for the reasons given by Neave JA and those additional reasons of Robson AJA that this ground cannot be sustained. I also agree with Neave JA that this is not a case in which it should be concluded that the verdicts on counts 2 and 3 were inconsistent. The appeal against conviction should be dismissed.
In relation to the appeal against sentence I agree, substantially for the reasons given by Robson AJA, that the learned sentencing judge fell into error in characterising the applicant’s conduct as ‘predatory’. An offender will engage in predatory conduct in relation to a sexual offence where he or she engages in conduct prior to the commission of the offence which is intended to facilitate its commission. Such conduct will reflect an element of premeditation prior to the commission of the
offence.
The learned trial judge treated the applicant’s conduct, which he regarded as ‘predatory’, as an aggravating circumstance. He was entitled to do so if there had been evidence which supported such a conclusion. Giving great weight to the view of his Honour, a very experienced trial judge, I am unable to detect any circumstances that would permit such a conclusion. The jury had acquitted the applicant on count 2. The evidence was insufficient to establish, to the criminal standard, that that the assault, the subject of count 3, was more than an opportunistic and spontaneous act which occurred in the circumstances described by Robson AJA. I would therefore allow the appeal against sentence and re-sentence the applicant as Robson AJA proposes.
ROBSON AJA:
I have had the advantage of reading in draft the reasons of Neave JA. I agree with her that the applicant’s application for leave to appeal against the conviction should be dismissed.
I wish to add a few words on the ground that in all the circumstances the verdict of the jury is:
(a) unsafe and unsatisfactory;
(b) unreasonable or cannot be supported having regard to the evidence
and in particular, a reasonable jury properly instructed ought to have had a reasonable doubt as to the guilt of the applicant.
In R v Vjestica,[23] this Court examined the approach required of appellate courts in considering unsafe and unsatisfactory grounds. Maxwell P (with whom
Buchanan JA and Whelan AJA agreed) said the question posed in M v The Queen,[24] namely: ‘Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?’
requires the court of criminal appeal to decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard. To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’ or whether, instead, the ‘path to a conviction was open’.[25]
[23][2008] VSCA 47 (Maxwell P, with whom Buchanan JA and Whelan AJA agreed).
[24](1981) 181 CLR 487.
[25][2008] VSCA 47 [63].
In this case, the issues ultimately boiled down to the word of the applicant against the word of the complainant. Both the applicant and complainant agreed, however:
(1) An incident did take place between the applicant and the complainant in the complainant’s bedroom after she had returned from outside when her mother told her she should not swim in the pool;
(2) At that time, she was in her bedroom in her bathers, about to change back into her clothes;
(3) The applicant came into her bedroom without being invited; and
(4) After the incident, he kissed her on the cheek.
As to the incident, the complainant says the applicant came up behind her, hugged her and put his hands down her pants and rubbed her pubic region for about thirty seconds. On the other hand, the applicant says he was talking to the complainant, stepped into the bedroom and went to pick up the complainant to carry her outside in an act of horseplay but released her when she ‘stiffened up a bit’. He says his actions did not include putting his hand down her pants, although he may have accidentally touched her in the breast region when he sought to pick her up.
In my opinion, there was no evidence that prevented the jury from reaching a conclusion beyond reasonable doubt that the complainant’s version was to be believed. The fact that the jury found the applicant not guilty of the earlier complaint was not an obstacle to the jury believing the complainant in respect of the incident in her bedroom. The fact that she may have been tipsy, that she may have caused trouble for her mother in the past, that she may have been seeking to be the centre of attention, that she may have been confused about the first incident or that she may have wrongly given evidence that Mr Courtney was asleep when she came back to her bedroom to get changed, in my opinion, did not preclude the jury, acting reasonably, from being satisfied of the applicant’s guilt to the requisite standard. In my opinion, the jury was entitled to take into account, in assessing her evidence, the evidence of her immediate complaint of the assault to her sister and the evidence of her upset state. In my opinion, there was no ‘solid obstacle’ to the jury reaching the conclusion beyond reasonable doubt. In other words, in my opinion, ‘the path to a conviction was open’ to the jury.
The appeal against sentence
The applicant submitted the trial judge made an error in describing the nature of the sexual touching in the circumstances as they were, as predatory.
The trial judge referred to a submission by the applicant’s counsel that the trial judge must view the offence as a single, isolated incident. The trial judge accepted that submission and said he drew no conclusion adverse to the applicant concerning any propensity to sexually offend against young girls. He went on to say:
However, there is little that explains the offence. There is no evidence of remorse. Your counsel submitted that I should view the offending as following after horse-play rather than predatory behaviour.[26]
[26]Reasons [11].
The trial judge continued as follows:
Whether the offending was preceded by horse-play or not, makes little difference in my view. I am left with the stark facts of the incident. You have touched the victim for your sexual gratification. You were 39 and she was still only 14. You were able to gain access to her because of the relationship between your family and hers. She and others trusted you and you betrayed that trust. You followed her into her bedroom. It is not surprising that she was frightened and shocked by your behaviour. I accept that you had been drinking, but that does not explain or mitigate your behaviour.
Your counsel relied on the fact that the touching was limited to the pubic area. Of course, this needs to be kept in mind. Had you directly touched her genitals then the offending would have been worse, if I understand Mr Priest’s submission correctly. I accept this, however, it is important not to subject the touching to a pedantic and precise mechanical analysis of the contact. The offence needs to be seen in its entire context.
The evidence elicited by your counsel on the trial was that the complainant or victim was a troubled and rebellious young girl in need of adult assistance and guidance. She seemed to have lacked parental support or management. It is not clear to me how well you knew the victim at the time of the offence, and accordingly, I draw no inference that you approached her, knowing of her rebellious and troubled history.
Given the circumstances of the touching, particularly the presence of adults in the house, and a police officer nearby, it is clear that the touching was very audacious. Despite the submission of Mr Priest, that I should not infer that your approach was predatory, I consider it appropriate to describe the nature of the sexual touching in the circumstances as they were, as predatory.[27]
[27]Ibid [12]–[15].
In R v Fuller-Cust,[28] this Court acknowledged that the presence of a predatory feature in a sexual assault case would be an aggravating factor. Batt JA, with whom Eames JA and O’Bryan AJA agreed, said:
The applicant does not fall into the category of a sexual predator, whose attacks were motivated by a desire for sexual gratification, and who was likely, if free, to prey on members of the public at large. The absence of such an element in the offending is not a mitigating factor, as such. Rather, the presence of a predatory feature would be an aggravating factor. But the absence of this factor is relevant to the question of rehabilitation.[29]
[28][2002] FSCA 168.
[29]Ibid [147].
In that case, this Court appears to have treated predatory as an appropriate description where the offender has planned or is predisposed to sexually assault or is a threat to others to do so.[30] In R v KU[31] the Queensland Court of Appeal considered whether a defendant’s rape had been predatory:
No evidence emerged during this assessment of any specific planning by [the defendant] for this offence to occur, suggesting the behaviour was situational and opportunistic rather than predatory in nature.[32]
[30]Ibid see [33], [121], [123] and [147].
[31][2008] QCA 154.
[32]Ibid [254].
Again the element of planning is identified by the court as an indicator of predatory behaviour. Nevertheless, opportunistic behaviour may be predatory if the person is predisposed to take advantage of such situations. The Oxford Dictionary definition of predatory includes ‘of an animal: that preys upon other animals’. In my opinion, the hallmark of a sexual predator would be one who preys on his sexual victims.[33]
[33]See also The Diocese of Dunedin [1999] NZBSA 122; R v Armfield [2005] SASC 108; Tector v Regina [2008] NSWCCA 151; R v Boys [1999] NSWCCA 11; R v Reyes [2005] NSWCCA 218.
A distinction, however, needs to be drawn between a person who is a sexual predator by nature and the acts of a sexual predator. The mere fact that a person may have done what a predator would do does not necessarily make him a predator.
As indicated above, the trial judge did refer to several factors that he considered relevant in assessing the applicant’s conduct. These included that the applicant touched the victim for his own sexual gratification; that he was 39 and she was still only 14 at the time of the incident; that the applicant was able to gain access to her because of the relationship between his family and hers; that she and others trusted him; that he betrayed that trust and that he followed her into her bedroom.
In my opinion, none of those matters by themselves necessarily constitute predatory conduct in the sense referred to in R v Fuller-Cust. On the other hand, each may be present in a sexual predator in the sense I have discussed. I consider the critical element is whether there was evidence that satisfied the trial judge, beyond reasonable doubt, that the applicant preyed on the victim as opposed to engaged in an isolated incident where a bit of horseplay had got out of hand.
The applicant had been charged and acquitted of sexual assault upon another young girl at the trial. He had also been charged and acquitted of other alleged sexual assaults. The trial judge, however, quite properly said he drew no conclusion adverse to the applicant concerning any propensity to offend against young girls. I accept that the exact meaning of predatory in the context of a sexual assault may be uncertain in some circumstances. But, in my view, it did not apply to a single, isolated incident where the offence followed after horseplay and there is no evidence of any prior intention on the part of the applicant to sexually assault the complainant.
I have no doubt that the trial judge, in finding that the applicant’s conduct was predatory, was making that finding as an aggravating factor. In doing so, in my opinion, the trial judge erred. In those circumstances, I would grant leave to appeal against sentence, allow the appeal and re-sentence the applicant.
Neave JA has referred to the relevant mitigating factors and circumstances of the applicant which ought to be taken into account in determining an appropriate sentence. There was a gross breach of trust by the applicant. The consequences of the applicant’s actions have been terrible for both his victim and her family. His actions were opportunistic, selfish, thoughtless and deserve the strongest condemnation.
Nevertheless, bearing in mind the consequences which have already been visited upon the applicant by reason of the charges against him, including not being able to be in the same room as his children unless accompanied by an adult and the other matters referred to by his counsel, I would impose a head sentence of twelve months. On the 4th April 2008, the applicant was granted bail by this court pending a determination of his appeal. Allowing for pre sentence detention the applicant has thus served slightly more than five weeks of his sentence. Having regard to the personal and mitigating circumstances of the applicant set out in the reasons of Neave JA, I would therefore order that ten months and three weeks of that sentence be wholly suspended. Consequently the applicant will not be required to serve any further portion of his sentence in custody.
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