R v Silva

[1992] QCA 486

ROBUZTIANO SILVA	Appellant
BRISBANE ..DATE 30/11/92

COURT OF APPEAL [1992] QCA 486

McPHERSON JA
WILLIAMS J

DERRINGTON J

CA No 265 of 1992

THE QUEEN

v.

JUDGMENT Robuztiano Silva. He is also applying for leave to appeal against his sentence. He was indicted and tried and found guilty in the District Court of two counts of having unlawful carnal knowledge of a woman aged about 21 who was, so it was alleged, to his knowledge intellectually impaired.

He was also found guilty of a fourth count of indecently dealing with the same girl. Count 4 was an alternative to count 3, another charge of unlawful carnal knowledge, of which he was found not guilty by the jury. The girl was alleged to be in the care of the appellant, during the absence of her mother overseas.

The trial was concluded on 21 August 1992, when the appellant was found guilty and sentenced, in respect of counts l and 2, to four years' imprisonment, and, in respect of count 4, to

two years' imprisonment, all sentences to be served

concurrently.

The formal notice of appeal in the record book raises a number trial, plainly admitted that he did have sexual intercourse with the girl and he has, in the course of the hearing before us, again admitted to the same. On the other hand, he has denied having penetrated the girl anally.

of different grounds. Three or four of them, which are
designated B, C, D and E, relate to the matter of criminal
responsibility or guilt in that they are directed, among other
matters, principally to the issue of whether unlawful carnal
knowledge took place. They question the strength of the
evidence in various particulars that are given in the grounds
of appeal.

For the reason that he made these admissions, in the course of the trial and again before us, it would not matter if the state of the scientific evidence was, as he asserts, unsatisfactory. There was some evidence about staining of clothing, but it cannot matter if the scientific evidence, in some respect that I find difficult to follow, did not come up to the proof.

Another ground of appeal that was taken was that the girl was not mentally impaired, or that, if she was, the appellant was not aware of her condition. At the trial, evidence about the

mental condition of the girl was given by a psychiatrist. He
said she had a mental age of about five years. There was also
evidence given about her by a worker from an Endeavour
Foundation workshop where the girl was employed. The evidence
of those two witnesses amply justified a finding by the jury
that the complainant in this case was in a mentally impaired
condition, so as to satisfy

the requirements of that element of that offence.

So far as his own knowledge was concerned, although the appellant asserted before us, as he did at the trial, that the girl was mentally competent, the fact is that he knew that she was employed in the Endeavour workshop and she had been living in his house for some time before these events took place.

The complainant herself, meaning by that the girl Tanya, gave

evidence at the trial and the jury therefore had an ideal

opportunity of seeing her for themselves, and making up their
own minds about whether a person of the appellant's
intelligence would have realised that she was mentally

impaired.

There is, so far as I can see, therefore nothing of any police conducted extensive interviews of the appellant. Those interviews, as is apparent from the record and transcript of them, lasted for some hours. They were in part audio tape-recorded, and in part video tape-recorded, and the recordings were played to the jury at the trial. They were therefore in a very good position to work out for themselves what it was that the appellant was saying to the police officer in the course of the interviews, and to assess the extent of his linguistic skills in English. It was for them to decide whether he made the admissions and the statements that were being ascribed to him or recorded as having been made by him in the course of those interviews. The interviews were conducted in English, and the jury were therefore in a good position to assess the extent of his knowledge of that language.

substance in the grounds of appeal to which I have so far
referred. In addition to those grounds of appeal, some
complaint was made by the appellant about the standard of
interpretation at the trial, or it may be about the honesty of
the interpreter who was engaged for that purpose in the
District Court. There seems to me, however, to be even less
substance, if that is possible, in this ground of appeal than
in the others to which I have already referred.

The appellant, himself, gave evidence at the trial, and after some testimony had been given by him, his counsel elected to have him continue his evidence through an interpreter, saying, as he did so, that he was taking that course of using an interpreter "out of an abundance of caution".

When all these matters are considered, I can see no basis on which it can be said that the trial miscarried, or that some injustice has been done to the appellant by the jury verdict finding him guilty of the offences to which I have referred.

I turn then to the matter of sentence. In effect, the sentence was one of 4 years' imprisonment and the appellant complains about its duration being, as he puts it, "too severe". He is an individual of Cuban origin who has been in Australia for some 12 years or more and who has not had recorded against him any previous criminal convictions of any kind. That is certainly a factor to be taken into account in his favour, and it may be that if I had been the Judge considering the matter of sentence, I would have made, or considered making, a recommendation for release perhaps somewhat earlier than the 2-year point at which he may now expect to be considered for that purpose.

However, it is not part of the function of this Court to interfere with sentences simply because one or more of the Judges of this Court considers that he or she would, if performing the sentencing function, have arrived at a slightly different result. The authority to which Mr Bullock referred on behalf of the Crown, which is a case of R v. Hatch (No 46 of 1991) is a clear enough indication that the sentence imposed in this particular instance is well within the range. In that case, the Court which was presided over by my brother Derrington, who is here today, increased a sentence for a similar offence, from 18 months imprisonment to 5 years, while also adding a recommendation for consideration for early parole.

The case there was a serious one in that the girl involved was under the care of the appellant in that case in that he was a person engaged by the organisation where she was staying to provide family services for her, and in that way he had the care of her personal needs and the like.

This case before us now possesses many of those features including the fact that, as was clearly proved in the trial in the Court below, the appellant had the care of this particular

girl. The sentence imposed in this case, which was for not

merely one but 2 offences of this kind, together with the leave to appeal against sentence and I would therefore refuse the application in that behalf. The result, in my opinion, is that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.
further offence of indecent dealing, is not capable of being
regarded as disproportionate to that imposed in R v. Hatch.

WILLIAMS J: Count 1 on the indictment against the appellant alleged that he had carnal knowledge of an intellectually impaired person who was then under his care. Count 2 was in identical terms. Count 3 alleged an offence of having carnal knowledge with an intellectually impaired person, and count 4 was an alternative to count 3; it alleged unlawfully and indecently dealing with an intellectually impaired person.

On oath in the witness box the appellant admitted the act of intercourse, the subject of counts 1 and 2, and with respect to those counts the only issues were with respect to the

complainant being an intellectually impaired person and
whether or not she was then under his care.

The prosecution, with respect to count 3, gave particulars of an act which amounted to anal intercourse, whereas on oath, the appellant admitted to conduct which included an act of vaginal intercourse. That explains why the jury returned a not guilty verdict on count 3, but convicted of the alternative count of unlawful and indecent dealing. The only substantial point the jury had to consider on count 4 was the intellectual capacity of the complainant.

The principal ground of appeal against conviction is that the verdicts were unsafe and unsatisfactory. Some 6 particulars are given as to why it is said by the appellant the conviction was unsafe and unsatisfactory. Given the fact that he admitted the intercourse, it seems to me that those particulars designated B to E inclusive are irrelevant when one is considering the verdict.

Some argument was addressed to this Court in support of the particular that the medical evidence concerning the blood was equivocal. But, as I say, I cannot see any relevance in that, given the admission of intercourse.

So far as the particular alleging that the interpreter did not assist the accused properly is concerned, I generally agree with all that has been said by my brother McPherson. I would merely add that it seems to me from a reading of the video and audio-recorded interviews between the police officers and the appellant, that he was able to make responsive answers to questions put to him; in the circumstances, it seems he would have been able to follow to a large extent what was happening at the trial, without the aid of an interpreter. The important thing, however, is that he had an interpreter, and I am not satisfied anything has been made out in that regard which would make the verdict unsafe.

That then leaves for consideration as the only particular on defence, based on section 216(4) of the Code; it is a defence to charges such as those in question here, that the accused person believed on reasonable grounds that the person was not an intellectually impaired person.

which it could be said that the conviction was unsafe and
unsatisfactory, the allegation made by the appellant that the
complainant was not handicapped. He did say, on a number of
occasions, in the course of his giving evidence, that the
complainant was perfectly normal.

In my view, the summing up of the learned trial Judge in relation to that issue was impeccable. He dealt properly with the question of the onus of proof, and put all the relevant matters before the jury. There was clear evidence on which the jury could be satisfied that the complainant girl had an intellectual age of between five and seven years, and there was also evidence that the appellant knew that she attended an Endeavour workshop and thereby impliedly was aware of the fact that she suffered some intellectual impairment.

The learned trial Judge properly defined intellectual considered in the light of the fact that on some three separate occasions the appellant had sexual connection with an intellectually impaired girl, and that on two of those occasions she was under his care.

impairment for the jury, and in the circumstances, having
considered the evidence and the summing up, I am not satisfied
that the verdict is unsafe and unsatisfactory because of any
matter associated with the allegation that the complainant was
at the material time an intellectually impaired person. In my
view, there is no basis on which this Court should interfere
with the conviction.

Bearing in mind what was said by the Court of Criminal Appeal in Hatch, CA No 46 of 1991, a case which was in many ways worse than this, I am of the view that it cannot be said that a head sentence of four years is manifestly excessive. I would also refuse leave to appeal against sentence. I therefore agree with the orders proposed by the learned presiding Judge.

DERRINGTON J: I agree with what has gone before, but would add only one observation, in relation to the complaint by the appellant, that he was badly served by his interpreter. Indeed, he says that his interpreter virtually lied to him in his translation as to what was said.

The appeal in that respect is totally unsatisfactory, because the only point about it was made by means of a statement from the Bar table, without any evidence to support it. This

obviously something of which the Court cannot take cognisance, I were sentencing the appellant myself, in the first instance, I might also have made the recommendation for early parole, but this is not such as to attract attention here because it would only be tinkering with the sentence in order to make such a variation.

and of course the prosecution has no opportunity of rebutting
it, if no material particulars are given and no evidence led
in respect of the matter.
It might be added that when he was spoken to by the police, in
the very first instance concerning the matter, the appellant
refused the services of an interpreter - his identity was not
even established - and spoke even then in terms of the
interpreter's not telling the truth in relation to matters of
interpretation. That, to me, seems rather significant and it
is obvious that there is no ground at all upon which this
Court could reasonably grant any relief to the appellant in
respect of his appeal.

McPHERSON JA: The order of the Court is that the appeal is dismissed. The application for leave to appeal against sentence is refused.

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