R. v. Youngson

[1993] QCA 308

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  [1993] QCA 308

C.A. No. 62 of 1993

Brisbane

[R. v. Youngson]

BETWEEN:

THE QUEEN

v.

WILLIAM GORDON YOUNGSON

(Appellant)

The President

Mr Justice Pincus

Mr Justice Thomas

Judgment delivered 19/08/93

Reasons for judgment by the President and Thomas J. jointly. Pincus JA. dissenting.

APPEAL AGAINST CONVICTIONS ON COUNTS 1, 3 AND 4 ALLOWED, THE VERDICTS AND SENTENCES ON THOSE COUNTS ARE SET ASIDE AND NEW TRIALS ORDERED.

APPEAL AGAINST CONVICTION ON COUNT 2 DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ON COUNT 2 GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCE ON COUNT 2 IMPOSED BELOW. IN LIEU THEREOF, THE APPELLANT IS SENTENCED TO A TERM OF IMPRISONMENT FOR ONE YEAR WITH A RECOMMENDATION THAT HE BE CONSIDERED FOR PAROLE IMMEDIATELY.

CATCHWORDS:                  CRIMINAL LAW - Joinder - counts of indecent assaults upon different complainants - some complainants were friends - whether joinder proper.

CRIMINAL LAW - Sentence - indecent assault of patient by natural therapist - 1 year's imprisonment and recommendation for parole.

Counsel:Mr. A. Rafter for the appellant

Mr. B. Butler for the Crown

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the Crown

Hearing Date:  12/05/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 62 of 1993

BeforeThe President

Mr Justice Pincus
Mr Justice Thomas

[R. v. Youngson]

BETWEEN:

THE QUEEN

v.

WILLIAM GORDON YOUNGSON

(Appellant)

REASONS FOR JUDGMENT - THE PRESIDENT AND THOMAS J.

Judgment delivered 19/08/93

The appellant was convicted in the District Court at Cairns on 4 February 1993 on four charges of indecent assault.  The jury could not agree on a verdict on a fifth charge.  All counts, with the exception of the second, involved a circumstance of aggravation in that the indecent assault consisted in part in a penetration of the complainant's vagina by the fingers of the appellant.  There were, in all, 4 complainants, M (count 1), J (count 2), D (count 3) and K (count 4).  K was also the complainant in respect of the 5th count on which the jury could not agree on a verdict.

The appellant carried on business as a natural therapist and each of the complainants consulted him at his clinic.  Two, D and K, each underwent a course of correspondence with the appellant and later moved to Mareeba and studied at his clinic.  They knew each other, and D was also a friend of M, who consulted the appellant at D’s suggestion.  Each of these three complainants gave evidence of the appellant inserting his fingers into her vagina after misrepresenting that such a procedure was necessary or desirable for medical reasons.  D also gave evidence that she was present and observed the conduct of the appellant in relation to M and K.

J, who did not know the other complainants, gave evidence that, after she had been given a massage at the appellant's clinic by a female, the appellant manipulated her neck and then moved his hand inside her panties just to the side of her vagina.  The appellant encouraged her to return to have her pubic bone fixed by internal manipulation.

Although there was evidence from the appellant and witnesses called in his defence, there was ample evidence available to the jury to support the convictions, and there is no substance in the first ground of appeal which was that the verdicts were unsafe and unsatisfactory.  The appellant's counsel did not seek to expand upon this ground in his written outline or at the hearing of the appeal.

Indeed, counsel for the appellant advanced only one ground of appeal and accepted that the other grounds could not be pressed.  The ground of appeal argued was that counts 4 and 5, the charges in which the complainant was K, should have been heard separately from counts 1, 2, and 3, the charges in respect of the other complainants.  This debate was narrowed by the prosecution's concession that counts 4 and 5 should have been heard separately from count 3, and that the convictions on counts 3 and 4 therefore could not be sustained.  Conversely, although it did not clearly emerge, it may also have been intended to argue for the appellant that count 1 (M) should have been heard separately from count 3 (D).

Certainly, however, that was not advanced at the trial, at which the only application made was to sever counts 1, 2 and 3 from counts 4 and 5 and the basis for that application was different from the argument put in this Court.  In this Court, no submissions were made that the evidence admissible in respect of the other counts was not admissible in respect of count 2.  That complainant, J, was unknown to the other complainants.  No basis was shown why that conviction should be overturned.

However, M and D were friends, so that the evidence concerning count 3 (D) was not admissible on count 1 (M) and vice versa.  See Hoch v. R. (1988) 165 CLR 292. There is nothing to suggest that the omission to take this point was anything other than an oversight, and the appellant should be permitted in this instance to raise the matter here although it was not taken at the trial.

Consequently, none of the convictions except that in respect of count 2 should stand.  The appeal should be allowed in respect of the other counts and the verdicts on those counts set aside and new trials ordered.

The appellant has also applied for leave to appeal against the sentences imposed on him.  He was sentenced to 4 years imprisonment on count 1, 2 years imprisonment on count 2 and 3 years' imprisonment on counts 3 and 4, with a recommendation that he be considered for parole after 15 months.  In the circumstances, it is necessary to consider only the two years' imprisonment in respect of count 2.

When that offence is considered in isolation as it now must be, that sentence seems to be manifestly excessive, especially since the appellant, who is 47 years of age, has no previous convictions that are material.  The term of imprisonment should be reduced to 1 year with a recommendation that the appellant, who has been in prison since 4 February 1993, should be considered for parole immediately.