R v Verde
[2009] VSCA 16
•18 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 339 of 2007
| THE QUEEN |
| v |
| STEVE VERDE |
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JUDGES: | VINCENT and NETTLE JJA and VICKERY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 February 2009 | |
DATE OF JUDGMENT: | 18 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 16 | 1st revision 27 Feb 2009 [2] |
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CRIMINAL LAW – Conviction – Burglary – Intention to assault – Whether open to infer existence of intention in absence of direct evidence – Whether conditional intention sufficient – Whether judge erred in refusing to direct an acquittal – Reg v Walkington [1979] 1 WLR 1169, Re Attorney - General’s Reference (Nos 1 and 2 of 1979) [1980] 1 QB 180 considered, Doney v The Queen (1990) 171 CLR 207 applied – Appeal dismissed.
CRIMINAL LAW – Sentencing – Manifest excessiveness – Applicant sentenced to a term of imprisonment of four years and seven months’ with a non-parole period of two years and six months – Very low IQ, borderline personality and aboriginality – Whether applicant’s circumstances warranted further leniency – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan S.C. | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr J R Sutton | Rainer Martini Solicitors |
VINCENT JA:
I invite Nettle JA to deliver the first judgment.
NETTLE JA:
Following a trial in the County Court at Melbourne, on 21 August 2007 the applicant, Steve Verde, was convicted on presentment U00848071 of one count of burglary, two counts of intentionally causing injury, two counts of false imprisonment and one count of rape, and on presentment U01009691, pleaded guilty to one count of threat to kill and one count of intentionally threatening to inflict serious injury. After hearing a plea in mitigation of penalty, on 5 October 2007 the judge sentenced the applicant to a total effective sentence of four years and seven months' imprisonment, with a non-parole period of two years and six months.
The applicant now seeks leave to appeal against both conviction and sentence.
The Crown’s case at trial
The evidence adduced at the trial was that for the five years preceding the commission of the offences, the applicant lived in a de facto relationship with the female complainant, Robyn Phelps, who in that time bore him three children. At the time of the offences, he was 41 years of age and she was 24 and an alcoholic. On 24 February 2006, they separated, and Ms Phelps obtained an interim intervention order which prohibited the applicant from approaching her or the home in which they had lived together at 15 Karoo Road, Rowville. Fearing nonetheless that the applicant might attack her physically, Ms Phelps stayed for some days in a women's refuge, and her children were placed in her parents' custody.
Some time earlier, Ms Phelps had begun a sexual relationship with a neighbour, Darren Houston, who lived at 11 Karoo Road, Rowville, and she spent several nights on the street drinking with him.
At about midday on 6 March 2006, she returned with Houston to her house at 15 Karoo Road, Rowville, and after he had gained access for them by breaking a window, they went to bed together in the master bedroom with the door locked and chained.
A short time later, the applicant entered the house with the use of a key and forced the bedroom door. He punched Houston in the head until Houston fell out of the bed on to the floor and then kicked Houston on the floor two or three times before Houston escaped from the room. The applicant thereafter pursued Houston into the dining room and attacked him again, causing him to fall to the floor in a semi-conscious state, after which Houston escaped to his own home at 11 Karoo Road. He was later observed there by police with blood covering his face and with extensive facial injuries. He had suffered bruising, swelling and cuts to his nose, forehead and right eye and jaw.
Meanwhile, the applicant turned the attack on to the complainant. Her evidence was that he grabbed her by the hair and walked her two doors down the road to where he had parked his car outside Houston's house. She yelled out to Houston for help, but the applicant punched her in the mouth and forced her to get into the passenger seat of his car. From there, he drove towards Glen Waverley and, as they drove, he castigated her vehemently for sleeping with Houston. She tried reaching for the car door handle to escape but according to her he said, 'Don't think about it,' and punched her in the face repeatedly, causing her facial injuries. At one point, he stopped the car and poured water from a milk container into her hands to wash the blood from her face, and then drove on to Bundoora Park and told her she had to have sex with him and he was going to find a place where they could do that. He made her walk across a bike track, down into the bushland to a flat area and, once there, he made her pull down her pants and bend over against a tree where he penetrated her vagina forcefully with his penis from behind and then make her suck his penis until he ejaculated in her mouth.
She said that after completing those acts, he took her to the home of his ex-partner, Heather, in Preston, and along the way threatened to take her out of Melbourne and kill her. When they arrived at Heather's house, he told Heather that the complainant had cheated on him and then asked Heather if the complainant could have a shower, which she did. He also asked Heather for a change of clothes for the complainant, which Heather provided, and the complainant changed into them.
He took the complainant then to the home of one of Heather's neighbours, Christine. He told Christine too that the complainant had cheated on him. He also borrowed $50 from Christine with which he later purchased petrol and a cask of wine for the complainant.
Finally, he took the complainant to the home of her aunt and uncle and told them as well that she had been cheating on him. She in turn told her aunt that the applicant had been violent. He sought to persuade her to get back into his car but she refused. Then her uncle drove her back to the women's refuge at her request, and once there she broke in through a window and called the police from the pay phone inside.
The police attended her at the refuge. She spoke to uniformed officers and gave a detailed account of her allegations, and they made notes of her allegations. In their evidence, they described her as appearing very distressed, apparently intoxicated and at times quite aggressive. They had difficulty calming her down and at one point they handcuffed her in order to restrain her aggressive behaviour.
The next day she was taken for medical examination and found to have multiple bruises, abrasions, lacerations, and areas of tenderness distributed widely over her body, face and scalp. Some of the abrasions showed evidence of healing, which suggested they may have been sustained at least a few days earlier. The examination also revealed that she had lacerations or tears in the genital region and tenderness in the area of her vagina close to her anus, which it was said were typical of recent penetration of the kind of which she complained. The examining physician thus determined that it was plausible that the injuries to her had been sustained in the manner described by the complainant, even though one could not altogether rule out other possible causes.
Appeal against conviction – Ground 4 – Failure to withdraw the count of burglary
The applicant was presented on one count of aggravated burglary, two counts of intentionally causing injury, two counts of false imprisonment and three counts of rape. The Crown put its case on aggravated burglary on the basis that the applicant had entered Ms Phelps's house in contravention of intervention order and, therefore, as a trespasser, knowing that there were people inside, and with the intention of assaulting them. At the conclusion of the Crown's case, counsel for the applicant submitted that, because there was no direct evidence that the applicant knew at the time of entering the house that anyone was inside the house, there was no case of aggravated burglary to answer. It appears that the judge accepted that submission. His honour ruled that:
It is a matter that an inference can be drawn by the jury that the accused knew that the complainant was present in the premises when he entered unlawfully into those premises. It appears from the uncertain evidence that we have that the complainant at about this time was either living in a women’s refuge – she said that she feared going back home because the accused might attack her there – or alternatively that evidence suggesting that she was sleeping on the streets with Mr Houston.
There is no evidence that indicates directly that the accused knew that the complainant was then living at No. 15 Karoo Street. In those circumstances the element of aggravation is not sufficient for that item to be left to the jury but the alternative count of burglary is open to be left to the jury.
Consequent on that ruling, count 1 on the first presentment was amended from aggravated burglary to burglary.
When later charging the jury as to the elements of the offence of burglary, the judge said this:
The third element [of the burglary alleged] is that he entered intending to assault a person there at the time of his entry. Well, there appears to be no dispute that Ms Phelps and Mr Houston were in the premises when it is alleged the accused entered that house …
But the further element that you must consider is whether or not he intended at the time that he entered as a trespasser, entered unlawfully into the premises, that he intended to assault persons who were in those premises …
If you conclude that it was, in fact, the accused man who assaulted those two persons, then it is a matter of inference, and I just directed you as to the drawing of that inference, but it is a matter of inference, from the fact that the accused did assault those persons, it is open to you to draw the inference that, at the time he entered the building , that was his intention…
Defence counsel then took exception as to what he submitted was the judge's failure to point out the effect of his Honour's earlier ruling that it was not open to infer that the applicant knew that there were persons in the house at the time of entry. The judge, however, rejected that submission and a short time later the jury retired to consider their verdict.
After deliberating for some time, the jury asked a number of questions, including a question as to intent, as follows:
Please clarify the word 'intent' in count 1.
In response, the judge reminded the jury of the need for the Crown to prove each of the elements of the offence beyond reasonable doubt, stating that:
[A]t the time that the accused entered 15 Karoo Road, … as a trespasser, … he entered with an intent to commit an offence involving an assault to a person in the building.
Now to establish the intent of a person and to establish the intent of an offender there is very rarely direct evidence as to what a person is thinking at the particular time. So it is usually a matter of inference that the prosecution will invite you to draw from other evidence and the surrounding circumstances.
In this case … the prosecution invites you to draw the inference that the accused man so intended from the existence of the intervention order, the relationship between the persons involved in this scene, that is the two complainants and the evidence which you of course may or may not accept … that the accused assaulted the two persons in the bedroom and elsewhere in the house.
…
[I]t is submitted on behalf of the accused man that the accused could have been there for some other purpose, to collect his own goods or for some other [purpose]. It is a matter for you to decide whether or not the prosecution has satisfied you beyond reasonable doubt of the elements of that offence …
At that point, defence counsel took further exception to what he submitted was the judge's failure to remind the jury that the Crown had not been able to establish that the applicant knew at the time of entry that one or more persons were present in the house. Once again, however, the judge said that he did not propose to redirect.
Counsel who now appears for the applicant submitted that, because there was no direct evidence that the applicant knew at the moment of entering the house that Ms Phelps and Houston were inside, there was no direct evidence that it was the applicant's intention at the moment of entry to assault anyone within the house; and it followed, in his submission, that the judge had erred in leaving the charge of burglary to the jury or, alternatively, by failing to direct the jury as to the need to exclude all other reasonable hypotheses as to the applicant's intent at the moment of entry.
I reject the first of those submissions. It is true that there was no direct evidence as to the applicant's purpose in entering the house. But as has been seen, there was evidence that he had driven to Karoo Road, parked outside Houston's home two doors down from Ms Phelps's house, walked two doors up to Ms Phelps's house, entered it unlawfully, and then immediately forced the bedroom door and begun to assault Ms Phelps and Houston. In those circumstances, and with all respect to the learned judge's ruling, I consider that there was a sound basis to infer that the applicant knew at the time of entry that Ms Phelps and Houston were inside, or at least believed that it was probable that they were, and thus was reckless as to whether they were.
But even if it were not open to exclude other possibilities beyond reasonable doubt, I consider that the fact that the applicant assaulted Ms Phelps and Houston as he did, taken in conjunction with the background circumstances to which I have referred, provided strong grounds for an inference beyond reasonable doubt that, although the applicant may not have known or believed that they were inside, his intention at the moment of entry was to assault them if he found them inside.
Counsel for the applicant submitted, albeit I think only faintly, that in those circumstances the applicant's intention to assault would have been no more than a conditional intention to commit an assault, and that a conditional intention to commit an offence ought not properly be regarded as sufficient for the purposes of the offence of burglary.
I do not accept that argument. It is established in England that it is enough to constitute burglary that an offender who enters premises unlawfully has an intention at the moment of entry of stealing anything of value which may be inside.[1] The same sort of reasoning was adopted by Smith J in the Western Australian Court of Criminal Appeal in R v Garlett.[2] Parity of reasoning implies that it should be enough to establish an offence of burglary that, although an offender may not know at the time of his or her unlawful entry into premises that anyone is inside, the offender none the less has an intention at the time of entry of assaulting any person who he may find inside. I see no reason to doubt it.
[1]Reg v Walkington [1979] 1 WLR 1169, Re Attorney–General’s Reference (Nos 1 and 2 of 1979) [1980] 1 QB 180, 194.
[2](1987) 31 A Crim R 75 (WACCA), 81 (Smith J), and see also C R Williams, Property Offences,(3rd Ed), 124-5.
I do not overlook that various criticisms have been made of the reasoning in R v Walkington[3] and Re Attorney-General's References (Nos 1 and 2 of 1979).[4] Arguably, the same result would have better been achieved by an amendment to the Theft Act 1968 to provide explicitly that a conditional intention is enough.[5] But as a matter of principle the question for the jury should be whether the applicant had formed the intention at the time of entering the premises of assaulting Ms Phelps and Houston if he found them therein.[6] And whatever limitations attend Walkington and the Attorney-General's References, they are consistent with that principle. To adopt and adapt the observations of Geoffrey Lane LJ in Walkington, to hold otherwise would make a nonsense of this part of the Act which Parliament cannot have intended.[7]
[3][1979] 1 WLR 1169.
[4]See, for example, Glanville Williams, Three Rogues’ Charters [1980] Crim LR 263, 266.
[5]Laurence Koffman, Conditional Intention (2) A Reply, [1981] Crim L R 14, 16.
[6]Williams, Three Rogues’ Charters [1980] Crim LR 263, 267.
[7][1980] QB 180, 194.
Counsel for the applicant reiterated the complaint that the judge had failed to direct the jury properly as to the drawing of inferences.
In my view that contention is without merit. In fact the judge twice specifically directed the jury that they could not draw an inference as to intent adverse to the applicant unless satisfied that it was the only reasonable inference open on the evidence and, in that connection, the judge specifically drew the jury's attention to the defence contention that it was possible that the applicant had gone to the premises for a purpose other than to assault Ms Phelps or Mr Houston.
Finally, on this aspect of the matter, counsel for the applicant submitted that, since there was a possible alternative explanation of the applicant's entry to the house, the judge was bound as a matter of law to direct the jury to acquit the applicant of the count of burglary.
That submission is untenable. As the decision of the High Court in Doney v The Queen[8] makes clear:
if there is evidence, even if tenuous or inherently weak or vague, which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision; or, to put the matter in its more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
[8](1990) 171 CLR 207, 214-5.
Ground 1: Discharging the jury
Under cover of ground 1, counsel for the applicant contended that the judge had erred by refusing an application to discharge the jury after the complainant had volunteered in evidence that the applicant's former partner, Heather, had an intervention order out against the applicant.
In ruling on that matter, the judge said this:
In the circumstances of this case, the suggestion that there was an additional intervention order against the accused taken out by the witness Heather is of very little significance. It is a matter that the jury is likely to give little or no weight to that evidence or have taken notice of what was said.
With respect, I agree with his Honour. A similar application for discharge was made and refused in R v Hartwick.[9] The principles and authorities are dealt with in the joint judgment of this Court in that case and I shall not pause to repeat them. Suffice it to say for present purposes that, in circumstances where the jury in this case were aware from other evidence that the applicant had been violent towards the complainant; an intervention order had been made on the application of the complainant; and the complainant was scared of the applicant, knowledge that Heather may have obtained an intervention against the applicant was, in terms of prejudice, de minimis.
[9]R v Hartwick, Hartwick and Clayton (2005) 14 VR 125, 158[80] and 156[75].
Ground 2 was abandoned.
Ground 3: Evidence of recent complaint
In support of Ground 3, counsel for the applicant contended that the judge was in error in admitting as evidence of recent complaint the allegations which the complainant made to police when they attended on her at the women's refuge after she had been returned there by her uncle. He submitted that, inasmuch as the complainant had what he described as 'numerous opportunities' to complain to Heather and Christine and to her aunt and uncle, the complaint to police was not made at the first available opportunity and, because of the nature of the police interview the complaint could not be said to be spontaneous.
In my view, the judge was not wrong to hold that the arrival of the police at the refuge was the complainant's first reasonable opportunity to complain. As she explained in cross-examination, she feared complaining to Christine or Heather because she perceived them to be friends of the applicant who might report her complaints to the applicant, and she had little opportunity to go into detail with her aunt and uncle.[10] Reference to questions asked by police and the complainant's answers shows that there was also nothing at all in the argument that the complaint was not spontaneous.
[10]C R v Munday (2003) 7 VR 423, 427; R v Knigge (2003) 6 VR 181, 191; R v Bradovski (2006) 166 A Crim 366, 381 [52].
Ground 5: Inconsistent verdict
Last under the heading of Ground 5, counsel for the applicant contended that the verdict should be regarded as unsafe and unsatisfactory, for two reasons. The first, he said, was that one should have a sense of disquiet about the applicant's conviction on the count of burglary in circumstances where the judge had ruled that there was no case to answer on the count of aggravated burglary.
In my view that submission does not take the matter any further than the criticisms advanced under Ground 4. Accordingly, I reject it.
The second reason was said to be that there was apparent inexplicable inconsistency as between the jury's verdict of guilty on Count 6 (which was the count of penile vaginal rape), and the verdicts of not guilty returned on Count 5 (a count of digital vaginal rape), and Count 7, (a count of penile oral penetration).
I reject that submission too. As counsel for the respondent demonstrated in a carefully formulated written submission, there were significant differences between the quality of evidence tendered in support of the different counts which made it logical to suppose that the jury had a reasonable doubt about the applicant's guilt on Counts 5 and 7 but not about Count 6. The complainant's evidence in relation to Count 5 was that the applicant had inserted his finger into her vagina as they were driving away from the complainant's home towards Bundoora Park. In contradistinction to her allegations concerning Count 6, however, the complainant did not mention a digital penetration in her first statement to police or in her initial complaints to Constable Tracey. In relation to Count 7, the complainant's evidence-in-chief was at first that the applicant compelled her to squat down in order to fellate him. As was pointed out in her cross-examination, however, that was different to what she had said in her statement, which was that the applicant had required her to kneel down to perform the act. And further doubt was cast on both versions of events when the tracksuit pants which she had been wearing at the time were produced in cross-examination and she had to concede that they did not bear any signs consistent with having either squatted or knelt on the soil.
Contrastingly, in the case of Count 6, the evidence was that the complainant had complained about the offence to Constable Tracey at the first reasonable opportunity; there were no inconsistencies as between her first complaint and her subsequent evidence, or indeed within her evidence; and her evidence was supported by the fact of the injuries to her genitals, which upon medical examination were determined to be consistent with the offence of forceful penile vaginal penetration of which she complained.
Appeal against sentence
The applicant's application for leave to appeal against sentence was but barely pressed, although not abandoned. It was submitted that, having regard to the applicant's very low level of intelligence, borderline personality and aboriginality, the total effective sentence and non-parole period were manifestly excessive.
That submission does not withstand analysis. Other things being equal, the individual sentences, total effective sentence and non-parole period would all appear to be remarkably lenient. As appears from the judge's sentencing remarks, however, that is explained by the fact that his Honour accepted that the applicant's mental state made it more difficult for the applicant to appreciate the seriousness of his wrongdoing, and because, consistently with principle, his Honour took the view that, in the case of an offender suffering from a mental disorder or abnormality or impairment of mental function, there may be less need for general or specific
deterrence. Even then, it might be thought that the sentence imposed was merciful; but, however that may be, it certainly was not excessive.
Conclusion and orders
It follows in my judgment that the applications for leave to appeal against conviction and sentence should both be refused.
VINCENT JA:
I agree and I do so for the reasons given by Nettle JA.
VICKERY AJA:
I agree with the reasons of Nettle JA and the orders he proposes.
VINCENT JA:
The orders of the Court are that the applications for leave to appeal against conviction and sentence are dismissed.
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