Raymond Brooks v The Queen
[2020] VSCA 93
•21 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0207
| RAYMOND BROOKS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE, McLEISH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 February 2020 |
| DATE OF JUDGMENT: | 21 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 93 First revision: 23 April 2020, [2] |
| JUDGMENT APPEALED FROM: | [2019] VCC 1582 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence –Threat to kill – Whether victim present when threat to kill made – Indecent act with child under 16 – Whether judge erred in finding aggravating feature of victim’s presence established beyond reasonable doubt – Finding open to judge on totality of evidence – R v Storey [1998] 1 VR 35, applied – Formosa v The Queen (2012) 36 VR 679, considered – Leave to appeal granted, appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Mortley | Victoria Legal Aid |
| For the Respondent | Mr G Hughan | Ms A Hogan, Solicitor for Public Prosecutions |
TATE JA
McLEISH JA
HARGRAVE JA:
TABLE OF CONTENTS
Introduction and summary................................................................................
1
Indecent act with child and threat to kill.......................................................
2
Amended charge and ruling on post-offence conduct....................................
6
Brooks’ evidence at trial....................................................................................
10
The plea hearing..................................................................................................
12
The finding that the victim was present when the threat to kill her was made......................................................................................................................
13
Did the judge err?................................................................................................
14
Conclusion...........................................................................................................
18
Introduction and summary
Raymond Brooks (‘Brooks’) applies for leave to appeal against sentence. He was convicted of one charge of wilfully committing an indecent act with a child under the age of 16 and one charge of making a threat to kill. Brooks pleaded guilty in the absence of a jury to the threat to kill charge on 10 September 2019 in the County Court. He was then found guilty by the jury, on 18 September 2019, of one charge of wilfully committing an indecent act with a child under the age of 16, and found not guilty on a further 10 indecent act charges involving the same complainant.
Brooks was sentenced on 2 October 2019 as follows:[1]
[1]DPP v Brooks [2019] VCC 1582 (‘Reasons’).
Charge on Indictment Offence Maximum Sentence Cumulation 10 Indecent Act with Child Under 16 10 years 6 months with 2-year CCO. 3 months 13 Make Threat to Kill 10 years 9 months Base Total Effective Sentence: 12 months with 2-year CCO Non-Parole Period: N/A Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 12 days 6AAA Statement: With respect to charge 13, but for the plea of guilty 12 months. Other relevant orders: Pursuant to Sex Offenders Registration Act 2004 s 34(1)(a) – 8 years. Forensic sample pursuant to Crimes Act 1958 s 464ZF(2).
Brooks relies on a single ground of appeal relating to the circumstances surrounding the threat to kill:
The Learned Trial Judge led herself into error by sentencing the Applicant on the basis that the Threat to Kill was aggravated by reason of finding beyond reasonable doubt that the Victim was present when the threat was uttered.
Brooks submits that it was not open on the evidence for the sentencing judge to be satisfied beyond reasonable doubt that the nine-year-old victim was present at the time he threatened the victim’s mother that he would slit the victim’s throat.
In our view, it was open to the judge to find beyond reasonable doubt that the threat was made in the presence of the victim. There was no error in the judge’s sentencing disposition. For the reasons set out below, leave to appeal should be granted but the appeal dismissed.
Indecent act with child and threat to kill
The offending occurred on the evening of 4 December 2016 at the home of Brooks and his de facto partner. The victim is the partner’s daughter from a previous relationship and was aged nine at the time. Brooks and his partner also have two young sons, who were then aged approximately five and three. The victim’s mother was at the home of a neighbour while Brooks was at home with the children. The victim gave evidence[2] that after the younger children had gone to bed, Brooks called her over to the couch where he was sitting in the lounge room watching television. She was seated between his legs, which were apart, when he grabbed her hand and made her touch his ‘rude spot’ or ‘doodle’ with her hand over the outside of his clothing and ‘made (her) keep touching [his] rude spot’.[3] The victim’s mother returned home and ‘caught [him] letting her do it’.[4]
[2]The victim gave evidence via two VARE interviews on 5 December 2016 and on 19 June 2017, and by a special hearing on 21 November 2018.
[3]Reasons [3].
[4]Ibid.
In summary, the evidence given by the victim’s mother[5] was that when she entered the lounge room she saw Brooks and her daughter on the couch. Brooks was lying down with his legs splayed apart so his knees were wide open but his feet were together, while her daughter was sitting in a ‘L’ shape in the middle of his legs with her back against one of his knees and her feet up on his other knee. She confronted Brooks and claimed he had an erection, he denied it, he called the victim a liar and, while looking at the mother, said he would slit the victim’s throat. The mother sent the victim off to the neighbour with a note to call the police.
[5]The victim’s mother has been diagnosed with a mild intellectual disability. In her evidence in chief she adopted the evidence she gave via a VARE interview on 5 December 2016 and she was then cross-examined.
In her sentencing reasons, the judge recorded the mother’s evidence in terms which made it clear that she accepted it as true, including her evidence that the victim was present when the threat to kill was made. The judge recorded the mother’s evidence in the following terms:
She thought straight away that something was not right because she had never seen her daughter sitting like that with you before. She stated that she sent her daughter to bed and went up and grabbed your groin area and felt that you had an erection. She stated your reaction was to say ‘Don’t touch it’ and instantly pull away and to deny that you had an erection. She said that you claimed that it was your hand, but described that your hand was holding your pants on the side of your hip area. She stated that she challenged you and said, ‘It was not your hand. Why did you have [my daughter’s] hand there?’ And you responded, ‘Oh, she was holding my hand.’
Your victim’s mother then went to the bedroom and asked your victim whether something had happened. She initially denied it. However, after being reassured that she could tell the truth and nothing would happen to her, your victim stated, ‘He made me do it.’
After your victim told her mother that you made her do it, your victim’s mother confronted you. She yelled at you and told you to get out of the house. She stated that you kept saying that you did not do it and that her daughter was a liar. You then pushed past her and walked into her daughter’s bedroom and asked, ‘Did I do it?’ She stated that her daughter said, ‘Yes, you made me do it.’ You then stated, ‘She’s a fucking liar’ and looked at your victim’s mother and stated, ‘I’m gunna slit her throat.’ The verbal abuse between you and your victim’s mother continued. At some stage it seems that you returned to the lounge area and, when your victim went to the kitchen to get a drink, her mother wrote a note and gave it to her, telling her to go out the back door and get help from the neighbour.[6]
[6]Reasons [4]–[6] (emphasis added) (citations omitted).
The neighbour gave evidence at the trial that the victim turned up at her door looking terrified. The judge described this as follows:
[S]he [the neighbour] had been on the phone to her grandfather when your name [Brooks’] showed up as a missed call. She ignored it, and believed that you called another time, but she ignored that and kept speaking to her grandfather. Then she heard banging on her front window which was really loud, such that she thought the window was going to break. She went and opened the door and saw your victim. She stated that she looked terrified. She was shaking. She was crying in a way that sounded like she was trying to catch her breath because she had been crying so much. She gave her a drink of water but she did not say much and just handed her a card on which the words, ‘Call police please’ were handwritten. She called the police and then received another call which identified you as the caller. She called you back and you asked if your victim was at her house and if she was okay. She stated that you sounded normal, but flustered at the same time. She said you sound[ed] normal, but not normal. She stated that you kept talking at a normal pace, as though nothing was wrong, but in your tone you seemed a bit flustered. She could hear screaming and yelling in the background and your victim’s mother was yelling not to let your victim come home as you had knives and were holding her hostage.[7]
[7]Ibid [9] (citations omitted). The mother confirmed in cross-examination that she was not in fact held hostage and that she was free to leave but did not leave because Brooks said he would not leave without his two boys.
In the victim’s initial VARE interview conducted on 5 December 2016, she did not mention any threat made by Brooks to kill her. The judge described the victim’s evidence in the initial VARE as follows:
[Y]our victim had described how, after she revealed that you had made her touch your ‘rude spot’, you then ‘started on (her) and (were) saying “She’s a liar, she’s a liar”, saying that she was a liar, when (you’re) the one who’s being a liar.’[8]
[8]Ibid [7] (citations omitted).
The victim did not mention any threat to kill in a second VARE interview conducted on 19 June 2017.
However, in the special hearing held on 21 November 2018 before Judge Sexton, during cross-examination the victim did refer to a threat to kill in the following exchange:
Counsel:Did your mum keep asking you about it [that is, if Brooks had touched her], until you said ‘yes’?
Victim:Well she asked me and then she walked out, I said ‘no’ ‘cause I didn’t want him to come in my room and hurt me, and then he — all I heard was arguing and then my mum came back in and I said ‘yes’ ‘cause I was crying and then - - -
Counsel:Did you — sorry? - - -
Victim:He came in my room and starting [sic] calling me a liar and said he was going to kill me and stuff.[9]
[9]Emphasis added.
Brooks admitted during his police interview on 13 December 2016 that when the victim’s mother called him a ‘dog’, he said the victim was a liar and threatened to slit the victim’s throat because she was lying, but he said it was ‘just anger talking’ and he was never going to do anything.
Brooks was asked by the police about who was present when he made this threat:
Q: You said before that you had some knives in your hand and were - - -
A: Yeah - - -
Q:- - - standing behind the door. Did you have the knives in your hand when you made that threat?
A: Ah, I think — yeah, yeah, I think so, yeah, I might have.
Q: OK. So how — and where did you say that?
A: I was sitting on the couch.
Q: When you said - - -
A: Sitting — sitting on the edge of — like, the edge of the couch.
Q: The couch - - -
A: Yep.
Q: - - - in the lounge room?
A: In the lounge room, that’s correct.
Q: And where was — where was [the victim’s mother]?
A: Standing at the bedroom door or the three doors.
Q: And how far away is that from the lounge room?
A: Ah, it’s in the — the door’s in the lounge room itself.
Q: All right. And that’s where [the victim] is in her bedroom?
A: No. [The victim’s] further down in her own bed, in her own room.
Q: OK.
A: The boys and girls separated ... [10]
[10]Emphasis added.
An issue was raised at the hearing of the application for leave to appeal about what Brooks meant by the final italicised answer, whether Brooks was referring to where the victim was at the time of the threat or merely where the victim’s bedroom was located.[11]
[11]See [28] and [42] below.
Amended charge and ruling on post-offence conduct
Charge 13 on the indictment initially alleged that Brooks threatened the victim that he would kill her. The prosecutor sought to amend charge 13 so that the charge was that Brooks made a threat to the victim’s mother to kill the victim. This was dealt with as a preliminary matter before the trial commenced in front of the jury. The judge then sought to clarify with the prosecutor whether the Crown’s case was that the victim was present at the time the threat was made, and the judge was told there was a factual dispute about this, but the Crown did not accept the plea on the basis that there was no threat heard or made to the victim. The prosecutor informed the judge:
Well there appears to be an issue, a factual issue, in relation to that. Whether [the victim] was present or not. To answer Your Honour’s earlier question, the charge would be accepted. The plea to charge 13 is accepted on the basis of what is essentially set out in paragraph 17 [of the prosecution opening] but the prosecution are not accepting the plea on the basis that there was no threat heard or made to [the victim] herself. So, in a sense, we accept the plea to the charge, which is accepted on the particulars as I’ve sought to amend them. That is, that a threat was made to [the victim’s mother], that maintained that [the victim] was either present when the threat was made or she heard that the threat was made. Because that’s, without being — having anything to conceal, that’s one of the major arguments the prosecution rely on in terms of drawing an inference from what occurred. That Mr Brooks made the threat in an attempt to silence [the victim], effectively.[12]
[12]Emphasis added.
A short time later the prosecutor acknowledged that there was some inconsistency in the evidence about the circumstances of the threat to kill, but reiterated that the Crown case would be that the victim was present. He confirmed that the Crown would be seeking to rely on the victim having been present when the threat to kill her was made as post-offence conduct supporting charge 10 (indecent act with a child):
In a nutshell, Your Honour, my submissions about the evidence concerning the threats are there’s not a clear consistent account of what occurs. [The victim’s] account is easy to summarise because it’s only the one phrase and she says, ‘He came in my room, started calling me a liar and said he was going to kill me and stuff.’ So, there’s evidence from her that he said he was going to kill her to her while she was in her room. [The victim’s mother’s] evidence is — there arguably are two or three different versions contained in her account but in each of them he threatens to slash [the victim’s] throat and in each of them obviously [the victim’s mother] is present. So I’ve been instructed to accept the plea to charge 13 on that basis but maintain that we rely on the evidence — in terms of the argument for the post offence conduct and in terms of the trial, we still rely on the argument that [the victim] was certainly present when the threat to slash her throat was made, or ‘slit’ her throat was made.[13]
[13]Emphasis added.
The judge granted leave to amend charge 13 on the indictment to allege that the threat to kill the victim was made to the victim’s mother and on 10 September 2019 Brooks pleaded guilty to that amended charge.
As indicated, the Crown sought to rely upon the making of the threat to kill as post-offence incriminating conduct with respect to the indecent act (charge 10). The defence submitted that the making of the threat to kill should be excluded because it no longer carried any probative value once Brooks had entered a plea of guilty to charge 13. The judge rejected the submission made by the defence.
On 11 September 2019 the judge made a ruling that permitted the Crown to rely upon evidence of incriminating conduct pursuant to s 20 of the Jury Directions Act 2015.[14] The judge found that that the evidence of the threat to kill was connected very precisely to the indecent act. She found that the threat to slit the victim’s throat was not equally consistent with the explanation that the accused was angry due to the falsity of the allegation that he had committed an indecent act. She said:
[T]he evidence relied upon is very precise, namely a threat to slit [the victim’s] throat. It is a threat which the accused himself admits having made. It was made in a very specific context, namely, after [his partner] had come home and surprised the accused and the complainant whilst they were lying on the lounge, [his partner] suspecting that all was not right, felt the accused’s groin area and detected that he had an erection, and [the victim] had produced the disclosure which is the subject of Charge 10 upon being pressed by [his partner] as to whether anything untoward had happened between herself and the accused. This sequence of events had been immediately followed by [his partner] confronting the accused by stating that he had inappropriately touched [the victim]. In response, the accused aggressively had pushed past [his partner] into [the victim’s] bedroom, and had called [the victim] a liar. He had asked [the victim], ‘Did I do it?’ and when she had answered in the affirmative, made the threat to slit her throat. In these circumstances, there is nothing equivocal about the accused’s behaviour because it is inextricably linked with the specific allegation which forms the basis of Charge 10.[15]
[14]DPP v Brooks [2019] VCC 1463 (‘the ruling’).
[15]Ibid [23].
The judge took the view that the threat was made to seek to silence the victim about the indecent act:
In my view, the surrounding circumstances are powerful evidence supporting an inference that the accused, by making that threat, implicitly admitted his guilt. He did not ask the complainant why she was saying that he had made her touch him, or why she was making up this lie about him, but, rather, asked ‘Did I do it?’. I agree with the prosecution’s submission that in the circumstances, this would be an unusual response of an innocent person whom one might expect instead to say, ‘You know I did not do it’. When the complainant confirmed that he did, his reaction was not to admonish her for lying but to threaten to slit her throat, that is, literally stop her from being able to re-utter her complaint against him. This was a violent and extreme utterance which, in my view, goes well beyond what a reasonable person would consider to be solely an expression of incredulity and anger over a false allegation. It could reasonably be expected to have a very powerful impact upon the mind of the nine year old complainant and her concerned mother.[16]
[16]Ibid [24] (emphasis added).
She characterised Brooks’ conduct as intended to intimidate the victim in order to ensure that the complaint was not pursued. She considered the evidence of the threat was capable of being used by the jury as post-offence incriminating conduct and admissible on that basis. She said:
Taking into account all of the evidence, I consider that the reasonable inference to be drawn from all the circumstances is that the accused was behaving in an intimidating way towards [the victim] and her mother to try to ensure that the complaint which [the victim] had made about his sexual offending which is the subject of Charge 10 would not go any further. It is akin to behaviour of trying to silence witnesses as in R v Liddy, which has been held to be evidence capable of being used as post-offence incriminating conduct.
For these reasons, I consider that the evidence is capable of being used by the jury to infer the accused had impliedly admitted guilt of the particular offence, Charge 10. I do not consider that the accused’s behaviour is equally consistent with him being angry as he asserts. This is particularly so when one looks, not simply at the threat to slit [the victim’s] throat, but the immediate lead-up to that threat and the circumstances immediately following it, all of which point to a very serious example of intimidating conduct towards both the complainant and her mother. … [T]aking all the evidence into account, it would be open to the jury to rationally conclude that the only reasonable explanation for the accused’s threat in all of the circumstances was that he wished to intimidate both the complainant and her mother so that the complaint of his conduct which forms the basis of Charge 10 would not be repeated, and he did this because he knew he was guilty of such conduct. Hence a jury may infer that by behaving in the way he did, he impliedly admitted his guilt.[17]
[17]Ibid [26]–[27] (citation omitted).
Her Honour rejected the submission that the evidence should be excluded pursuant to s 137 of the Evidence Act, on the basis that its probative value did not outweigh its prejudicial effect, because she considered that any risk of misuse by the jury (to the effect that if he was someone who would make such a threat, he therefore was the type of person who would offend against the victim in the manner alleged) could be dealt with by clear directions to the jury.
There is no application for leave to appeal against the ruling.
Brooks’ evidence at trial
Brooks gave evidence at the trial. He admitted making the threat to kill. During cross-examination he said that, while he made the threat, he did not push his way into the victim’s bedroom to confront her. His evidence was that he never went into the victim’s room and did not speak directly to the victim at all in that time. After his partner accused him of touching the victim, he said he just sat on the couch, the victim left the house and later on he got the knives from the kitchen. He said to his partner that the victim was ‘a fucking liar’. He said that after that he and the victim’s mother continued talking:
Brooks:She kept telling me to get out, I was asking her, give me six months more, or give till Christmas with the boys, because I didn’t want her to have my kids. I kept asking her, ‘Well just give me one child then. Give me the oldest one.’
Counsel: Yes?
Brooks:If she’d give me one, I could have got the other ones, I just wanted to get my kids away from her.
Counsel: And where were you when that was happening?
Brooks: In the lounge room.
Counsel: From there? What was the next thing that happened?
Brooks: I mean, oh I’m only guessing.
Counsel:Well you grabbed the knives from the kitchen, you told us that?
Brooks: Correct.
Counsel:Take us through what happened from the point … where you get from the couch into the kitchen to get the knives. Take us through what happened there?
Brooks:[The victim] had just left the house, and I asked where she was going. So I went into the — to lock the back door to make sure [the neighbour’s partner] couldn’t get in the back door, and just seen the knives there. I don’t know why I grabbed the knives. With the way my mind was going, not only at that time but at previously, I took the knives back in to the lounge room.
Counsel:Yes?
Brooks:Can’t be a hundred per cent certain whether I locked the front door or not, and then [his partner] just kept saying ‘Get out, get out, get out’. I kept saying ‘Give me my boys, give me my boys’ and I – I left.
The prosecutor reminded Brooks that in this account he had not said when the threat was made:
Counsel:Now, there’s a part of the story you haven’t told the jury about, Mr Brooks, and that is when the threat that you’ve pleaded guilty to was made?
Brooks: Yes.
Counsel: When did you make that threat?
Brooks: After [the victim] left the house.
Brooks emphasised that he had not made the threat in the victim’s presence as she had left the house.[18] He said that when he realised that the victim had left the house with a note for the neighbour to call the police, he grabbed two kitchen knives and he had those knives in his hand and held at his own throat when he made the threat. He grabbed the knives after he locked the back door. He denied making the threat after earlier pushing his way into the victim’s bedroom to confront her.
[18]Reasons [12].
The Crown later submitted at the hearing of the application for leave to appeal, that the evidence Brooks gave at trial about where he was when he uttered the threat, namely, on the couch with the knives he had grabbed after locking the back door and after the victim had left the house, was inconsistent with the answers he gave at the police interview, namely, that he made the threat when he was sitting on the couch and the victim was in her room.[19]
[19]See [14] above and [42] below.
When it was put to Brooks that he threatened to slit the victim’s throat as an attempt to silence her, to stop her from making any further disclosure about what had happened, his evidence was that the victim knew nothing about the threat because she was not in the house at the time the threat was made.
The plea hearing
During the plea, the prosecutor relied on the evidence given by the victim in the special hearing and the evidence given by the victim’s mother in her VARE interview, which was consistent with what she said under cross-examination at trial, as the basis for submitting that the threat to kill was made in the victim’s bedroom while the victim was present. He submitted that there was insufficient evidence to establish that Brooks had the knives in his hand when he made the threat. The Crown case was that the threat was made in an attempt to dissuade the victim from further disclosing what had occurred when she was on the couch with Brooks, which rendered it a serious example of the offence of making a threat to kill.
Counsel for Brooks submitted that as the presence of the victim is an aggravating feature of a threat to kill charge, the Crown was required to prove it beyond reasonable doubt,[20] and it had failed to do so. He submitted that the victim had not disclosed that any threats were made in her presence during her two VARE interviews and the disclosure did not occur until the special hearing. This evidence thus amounted to a subsequent disclosure. He submitted that the jury had unanimously rejected any and all subsequent disclosures by the victim as was apparent from the verdicts of ‘not guilty’ with respect to charges 1–9, and charge 11. He also relied on the sworn evidence of Brooks at trial that the victim was not present when he made the threat as establishing that the aggravating feature had not been proved beyond reasonable doubt.
[20]See R v Olbrich (1999) 199 CLR 270, 281 [27] approving R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA); Formosa v The Queen (2012) 36 VR 679, 681–2 [8] (‘Formosa’).
In response to questioning by the judge about the neighbour’s evidence that the victim was terrified when she appeared with the note, which her Honour said was very powerful evidence that the victim had been present when the threat to kill was made, counsel for Brooks submitted that the victim’s state was equally explicable by the tense situation the victim was fleeing, during which her mother and Brooks were yelling and swearing, and by her mother handing her a note for the neighbour to call the police.
The finding that the victim was present when the threat to kill her was made
The judge said in discussion on the plea that she was satisfied beyond reasonable doubt that the victim was present when Brooks uttered the threat to kill. She noted that the jury did not have to adjudicate on the threat but the jurors had been told they were entitled to rely upon it as post-offence incriminating conduct in respect of charge 10 and they had found charge 10 proven. She observed that, consistent with the jury’s verdict on charge 10, it would be open to her to find that the jury found that the threat to kill was post-offence incriminating conduct.
In her sentencing reasons, having accepted the mother’s evidence as set out above, the judge addressed Brooks directly and said:
I am satisfied beyond reasonable doubt that you did utter the threat to slit your victim’s throat in her presence in her bedroom after you went in there to challenge her as to whether you had committed the indecent act. In this regard I note that the jury were satisfied beyond reasonable doubt that you committed Charge 10 and they were given directions that they were entitled to rely upon your threat to slit your victim’s throat as post-incriminating conduct in relation to that charge. The jury also heard evidence from the neighbour as to the state of your victim when she arrived at her house with the note asking her to call the police. The evidence of your victim’s state of great fear as observed by the neighbour, the evidence that her mother had been so alarmed that she sent your victim out the back door to call police and the evidence that, when you phoned the neighbour, your victim’s mother yelled in the background for the neighbour not to let her daughter back home, in combination, satisfies me beyond reasonable doubt that your victim was very frightened indeed because the threat to slit her throat had been made in her presence. In my view, in her VARE, when your victim stated in answer to Question 52 ‘then he just started on me and mum’ she appears obviously upset when recounting what happened in her bedroom before she left the house to seek help from the neighbour, albeit that she did not mention the threat at that time.[21]
[21]Reasons [13] (emphasis added).
The judge went on to say that she regarded the making of the threat to kill the victim to the victim’s mother when the victim was present as a serious aggravating factor on the basis that, as she had indicated in the ruling, the threat was made to frighten the victim into being silent about the sexual offending that had occurred against her:[22]
[A]s I have already stated, I am satisfied beyond reasonable doubt that you did make the threat which is the subject of Charge 13 in the presence of your victim and I am satisfied beyond reasonable doubt that you did that to try to stop her from further disclosing your offending. To make a threat of that terrifying kind to a child is serious by itself. Taken in the context of having offended sexually against her and making it to frighten her into being silent about the offending is a serious aggravating factor.[23]
[22]See [22] above.
[23]Reasons [19].
Consistent with the ruling, the judge did not accept that Brooks made the threat simply in anger and not as an attempt to silence his victim.[24] The judge further considered that Brooks did not show true remorse for the threat to kill ‘in that you minimised it in your evidence to the jury by claiming that it was not made in your victim’s presence and it was not made to silence her’.[25]
[24]Ibid [25].
[25]Ibid [26].
Reading the transcript of the plea and the sentencing reasons as a whole, it is clear that the judge preferred the evidence of the mother and the victim that the threat was made in the victim’s presence. In addition, the judge gave the reasons set out above at [34] as bolstering that finding. While a review of the whole record makes that clear, it would have been preferable if the judge had given self-contained reasons for her finding on this critical issue. For this reason, we would grant leave to appeal.[26]
[26]Formosa (2012) 36 VR 679, 682 [9]–[12].
Did the judge err?
Brooks submits that the judge erred in the fact-finding exercise when determining whether the aggravating feature had been established beyond reasonable doubt.[27] The judge relied on the jury having found that Brooks had committed the offence under charge 10 (indecent act), the jury having been directed that it was entitled to rely on the threat to kill as post-offence incriminating conduct in relation to that charge. However, Brooks submits, the judge could not know what reasoning process the jury adopted when it reached its verdict on charge 10, and in particular whether it accepted that the threat to kill was made in an attempt to silence the victim about the indecent act.
[27]Brooks submits that if this Court were to grant leave to appeal and allow the appeal, he would seek a non-custodial sentence, or a substantially reduced term of imprisonment, on the basis that he is an Aboriginal man with no prior criminal convictions.
Further, Brooks submits, with respect to the judge’s reliance on the neighbour’s evidence about the victim’s state when she arrived with the note, a competing inference is available that can be drawn from that evidence, namely, that the victim was terrified because of the tense circumstances during the heated verbally abusive argument between her mother and Brooks, rather than because of any threat to kill.[28]
[28]See [32] above.
Brooks submits that the judge also erred in relying upon the neighbour’s evidence that she heard the victim’s mother during the telephone call say not to let the victim come home, that Brooks had knives, and that he was holding the mother hostage. He submits that this evidence bears no relationship to the earlier threat to kill and could not be of any assistance one way or the other on the issue of whether the threat was made in the presence of the victim. An alternative inference was available to the effect that the victim’s mother did not want her daughter to return home because Brooks had knives and she thought she was being held hostage, rather than because of any earlier threat made to the victim.
Brooks contends that the weight to be given to the evidence of the victim and the mother about when the threat was made was not sufficient to discharge the evidentiary burden. The jury had clearly not accepted the victim’s evidence in relation to the other charges of which Brooks was acquitted while the mother’s ‘unknown intellectual functioning’ meant the reliability and accuracy of her evidence was open to challenge.
Brooks responds to the claim that there is an inconsistency between the answers he gave in his police interview and his evidence at trial with respect to the victim’s location when he uttered the threat[29] by submitting that the answer he gave during his police interview — ‘[the victim’s] further down in her own bed, in her own room’ — should not be read as a statement that the victim was in her bedroom at the time, but rather as a reference to the location of the victim’s bedroom. It was, as it was put, an ‘assertion of possession’, that the victim had her own bedroom.
[29]See [14] and [28] above.
Brooks submits that he was clear in his evidence at trial that he had the knives at the time he made the threat, and that he only took possession of those knives after the victim had left the house. This was despite the Crown conceding that the evidence as to when Brooks picked up the knives was uncertain and insufficient to establish that Brooks had knives in his hand when he made the threat.[30]
[30]See [14] above.
The Crown submits that the judge’s finding that the threat was made in the presence of the victim was open on all the evidence.[31] The judge did not reach her conclusion based on any factual findings made by the jury; she made her findings following her own assessment of the totality of the evidence. The mother’s evidence was consistent from the outset, and was supported by the evidence of the victim given, unprompted, during the special hearing. The evidence of the neighbour about the victim’s state when she arrived was not inconsistent with the threat having been made in the victim’s presence.
[31]Formosa (2012) 36 VR 679, 689–90 [56]–[60].
We consider that it was open to the judge to find beyond reasonable doubt that the victim was present at the time the threat to kill her was made. In our view, the reasons of the judge reveal that she was well aware of the stringency of the test that had to be met before a finding could be reached that the threat to kill was made in the presence of the victim. We do not consider that she sought to infer what path of reasoning had been adopted by the jury in arriving at its verdict of guilty with respect to charge 10. Rather, she considered that that verdict, arrived at in circumstances where the jury was permitted to rely on the threat to kill as post-offence incriminating conduct with respect to charge 10, sat comfortably with her view, based upon all of the evidence she had seen and heard, that the victim was present at the time when the threat was made. In that context, the judge noted that the jury was satisfied beyond reasonable doubt that Brooks committed the indecent act comprising charge 10, and this was consistent with her finding.[32]
[32]Reasons [13]. See [34] above.
Her Honour relied on the evidence of the mother which was consistent throughout. In her VARE interview and under cross-examination, she describes how the confrontation about the indecent act unfolded and how, in the context of that confrontation, she recalls the threat being made. She gave direct evidence about how she confronted Brooks about what she had just seen and what the victim told her and how Brooks responded by forcefully denying that the act had occurred, how he pushed her aside while walking to the victim’s bedroom at the same time as repeatedly calling the victim a liar and saying, in the midst of that confrontation, that he would ‘slit her [the victim’s] throat’. She gave no such evidence in relation to the charges on which Brooks was acquitted. (Indeed, the victim did not disclose to her mother (or anyone else) any of the other conduct that formed the basis of the charges on which Brooks was acquitted until her first interview with the police.) Moreover, the mother’s evidence was consistent with the victim’s evidence at the special hearing. It was also not inconsistent with the neighbour’s evidence about how terrified the victim was when she arrived with the note.
By contrast, there was a fundamental inconsistency in what Brooks said in relation to the circumstances surrounding the threat. At trial he said that he made the threat to kill the victim after the victim had left the house. (As noted, his evidence about whether he was holding the knives at the time he made the threat was uncertain.) This conflicted with the answers he gave in his record of interview, where he appears to accept that the threat was made during the throes of the confrontation when he was angry at the allegations made against him moments before by his partner and while the victim was in her bedroom before she left the house. We do not accept that his alternative interpretation is tenable.
We do not consider that his answer to the question, ‘And that’s where [the victim] is in her bedroom?’, namely, ‘No. [The victim’s] further down in her own bed, in her own room’,[33] should be construed as meaning that he was describing the location of where the victim normally slept. The answer must be interpreted in the context of the questions being asked. That context consists of questions from the police about how his partner confronted him over his indecent conduct, how he turned on the victim and called her a liar, the yelling and screaming that followed, his uttering the threat to kill and the critical question of who was present when he made this threat.[34] In our view, it is clear that the focus of the questions was on what took place during the confrontation and the immediate aftermath of the confrontation; the focus was not on the living arrangements of the family. Even on the answers given by Brooks in his police interview, therefore, the victim was in the house when the threat was made.
[33]See [14] above.
[34]See [13]–[14] above.
The judge had the advantage of seeing and hearing from all the witnesses about the circumstances surrounding the threat. We consider that it was open to the judge, on the whole of the evidence, to find that the threat to kill was aggravated by reason of finding beyond reasonable doubt that the victim was present when the threat was uttered. We reject the sole ground of appeal.
Conclusion
We consider that leave to appeal should be granted but the appeal dismissed.
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