RSW v R
[2012] NSWCCA 13
•27 February 2012
Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: RSW v R [2012] NSWCCA 13 Hearing dates: 15 November 2011 Decision date: 27 February 2012 Before: Whealy JA at [1]
Simpson J at [58]
Hislop J at [80]Decision: 1. Appeal against conviction is dismissed.
2. Leave to appeal against sentence is granted.
3. Appeal against sentence is dismissed.
Catchwords: CRIME - Appeal - conviction - aggravated sexual assault - whether the jury verdict was unreasonable - SKA v R.
CRIME - Appeal - sentence - whether the sentence was manifestly excessive - utility of sentencing statistics.Legislation Cited: - Crimes Act 1900 (NSW) - s 61J, s 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW) - s 44Cases Cited: - Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v King (1936) 55 CLR 499
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Muldrock v The Queen [2011] HCA 39
- SKA v R [2011] HCA 13; 85 ALJR 571Category: Principal judgment Parties: RSW (Appellant)
Crown (Respondent)Representation: Counsel:
M. Thangaraj SC (Appellant)
Ms N. Noman (Crown)
Solicitors:
Ms M.A. Voncina (Appellant)
S.C. Kavanagh, Solicitor for Public Prosecutions (Crown)
File Number(s): 2008/010693 Publication restriction: Non-publication order re complainant Decision under appeal
- Jurisdiction:
- 9101
- Citation:
- R v RW
- Date of Decision:
- 2009-03-27 00:00:00
- Before:
- Finnane QC DCJ
- File Number(s):
- 2008/010693
Judgment
WHEALY JA: This is an appeal against conviction and an application for leave to appeal against sentence. RSW (the appellant) was arraigned before his Honour Judge Finnane (the trial Judge) and a jury on 10 December 2008. The indictment contained 3 counts alleging offences committed on 2 separate days between 1 September 2003 and 9 July 2004 in the following terms:
Counts 1 and 2: aggravated (under authority) sexual intercourse without consent.
(Section 61J Crimes Act 1900 (NSW): maximum penalty 20 years imprisonment; standard non-parole period 10 years.)
Count 3: aggravated (under 16; under authority) indecent assault.
(Section 61M(1) Crimes Act 1900: maximum penalty 7 years imprisonment; standard non-parole period 5 years.)
The evidence was that the incident relating to count 1 occurred on one day, with incidents giving rise to counts 2 and 3 occurring together on a later day. Counts 1 and 2 were allegations of cunnilingus and count 3 was an allegation that the appellant placed his penis in the complainant's hand. The complainant was aged between 9 and 10 during the relevant period. The appellant was her stepfather. The jury returned verdicts of guilty on all 3 counts on 12 December 2008.
In relation to count 1 the appellant was sentenced to a non-parole period of 5 years and maximum sentence of 8 years. In relation to the second count, the same sentence was imposed with, however, a 12 month period of accumulation between the two sentences. The third count attracted a sentence constituting a non-parole period of 3 years with a balance of term of 3 years. This sentence was made entirely concurrent with the sentence for the second count. The effective overall sentence was, accordingly, a term of 9 years with a non-parole period of 6 years.
The facts
The facts were within a short compass. In October 2003 the appellant and the complainant's mother (TS) were married. They moved into a house in the suburbs of Orange. Living in the house at the time were TS's two children, namely the complainant and her brother, MS. The house was configured so that there were three bedrooms on the upper level. The larger bedroom was that of the appellant and TS. Next to it was the complainant's bedroom and at the far end of the hall was the bedroom used by MS.
The complainant gave evidence initially by way of the playing of a pre-recorded interview. She gave further oral evidence and was cross-examined. The police interview had been recorded on 20 November 2007 at the Office of the Department of Community Services in Orange. Present at that interview were Detective Senior Constable Fawkner and the complainant's brother (who was acting in a support role). The quality of the recording was poor and, in effect, all that was available for the jury was the audio component of the video. Centrally, the interview contained the following questions and answers:
Q38: Can you tell me what you've come to talk to me about today.
A: Well I've come to talk about my mum's old step husband.
Q39: Mmmm
A: And what he did to me.
Q40: Yes. What did he do to you?
A: In the mornings before people were awake, he would come in and pull the blankets back and pull my pants down and lick me.
The complainant then stated that on one occasion he did this, she was awake but did not open her eyes. She stated that he licked her vagina on this occasion and after that pulled his pants down and put her hand on his "doodle". The complainant explained that she knew on this occasion it was the appellant because she knew MS would not do it and was always asleep; and she knew that the appellant always got up early and went to work, so she "figured that it would be the appellant". There were only two "boys" in the house. She only opened her eyes one time when he had walked out of the door. The complainant said that he was wearing his work clothes, pants and a long sleeve shirt. The complainant stated it went on "for a few months" and that it happened "quite a bit" but that it did not happen everyday but "close to every day".
It was clear from her evidence that the complainant was describing two specific occasions. The earlier occasion was the occasion when she said she had seen the appellant walk out the door of her bedroom. The second occasion was when the two consecutive incidents took place. On that second occasion, she kept her eyes closed throughout and pretended to be asleep. So she did not, on that occasion, see him leave the room.
Trial counsel elicited from the complainant that she had delayed in making any complaint until September 2007. There was evidence that the relationship between the appellant and TS was somewhat acrimonious and indeed had been short-lived. There were disagreements between the couple resulting in a temporary split up in March 2004. The appellant came back to the matrimonial home on 19 April 2004 but the relationship did not endure and they separated in July 2004. They were divorced in 2006. The break-up was described as "bitter".
The complainant was extremely vague as to precisely when, during the relevant period, the two incidents had occurred. She could not recall whether it was before Christmas. She recalled there had been workmen in the house for a time. It was not suggested any of the workers had been responsible for the sexual assaults.
After the complainant had told her mother of the events she claimed had occurred, the matter was placed in the hands of the police. Following a recorded interview with the complainant on 20 November 2007, the complainant was prevailed upon by the police to telephone the appellant on 25 January 2008 and make allegations to him. The format of the telephone conversation was, in effect, scripted, or at least suggested, by the investigators and the conversation was intercepted by way of a listening device. During the telephone call the complainant told the appellant she wanted to talk to him about the things he "used to do to her" when he came into her bedroom in the mornings. Part of the conversation was as follows:
Ap: I don't know what you are on about. And I, and I, just don't understand why you're even ringin' me.
C: To find out why you did it.
Ap: Did what?
C: When you used to come in the mornings and you'd pull my pants down and lick me.
Ap: ... do you realise what you are saying?
C: Yes I do realise what I am saying.
Ap: Oh my god... that just never happened. You know, you know, I'm sorry, but you know, I dunno if your mother's put these ideas into your, into yer head.
C: No she hasn't.
Ap: ... the accusations that you are making are just, you know, they're, to say the very least they're just scary ...
C: Well I haven't told mum about it. I don't think she'd be too happy about it if I did tell her.
Ap: ... it's obviously, it's a strong concern of yours, and that is something that you have to deal with, with you mother I am afraid. And then the next step is, you know, that's entirely up to you. ... I dunno what to say to you, like other than the fact that obviously that you know, like it it never happened. And I dunno where you gettin' those, you know, where you gettin' those ideas from ... I think you should, I think you should, if you strongly believe that then you should talk to your mother ...
Later in the conversation the appellant suggested to the complainant that she should discuss the matter with her mother and, in effect, let her mother decide whether she wished to take the matter to the police.
In February 2008 TS had a telephone conversation with the appellant during which he denied anything had happened and bluntly told the complainant's mother that she should report the matter to the police for investigation.
The appellant was arrested on 13 March 2008 at his place of employment. He refused to be electronically interviewed in relation to the allegations made by the complainant but said "I am totally innocent of all charges".
An important issue arose at trial regarding the appellant's general pattern of behaviour before he left home for work each day. This became important (as it did on this appeal) because of the complainant's evidence that the sexual incidents generally occurred quite early in the morning.
In her recorded interview, the complainant was asked these questions:
Q112 And who else was in the house at the time that this happened?
A Mum and (MS).
Q113 And what, you said that it was early in the morning because she was still asleep, what time in the morning do you think it may have been?
A About 6.00 I think.
Q114 Mmm. Why do you think it was 6 am?
A Because he used to get up early and get ready for work.
At Appeal Book 126 (Transcript 9) the Crown Prosecutor adduced the following evidence from the complainant:
Q. Now [name] you gave some evidence in your recording about an incident where he had licked your vagina and placed your hand on his doodle, do you recall that?
A. Yeah.
Q. Now on that occasion did you see him walk out of the room or not?
A. No.
Q. You have to speak up.
A. No not that time.
Q. You also gave some evidence about another occasion where he licked your vagina, do you recall that?
A. Yes.
Q. On that occasion did you see him walking out of your room or not?
A. Yes.
Q. When he walked out of the room do you remember what he was wearing?
A. His work clothes.
Q. Did you see him from the front or the back?
A. Back.
Q. The time that you saw him leaving your room, did that happened before or after the time that he licked you and placed your hand on his doodle?
A. Before.
During her cross-examination, the complainant explained that, on the second occasion about which she had given specific evidence, although she had not opened her eyes and had pretended to be asleep, she heard the appellant undoing the belt that he wore with his work pants (Transcript 28 line 20-35). The following questions were then asked:
His Honour Q. What was there about his belt?
A. When he pulled his pants down I can hear him undoing his belt that he wore with his work pants.
Q. What sort of belt was it?
A. I just heard the buckle undoing and stuff.
Q. A buckle?
A. Yep.
Q. Did anybody else have a buckle on their belt?
A. No.
O'Connor Q. Your mother didn't have any belts with buckles on them?
A. No.
Q. What time of day do you say this event happened please?
A Around 6 -
Q. Right -
A. In the morning.
His Honour Q. It was in the morning?
A. Yep
O'Connor Q. Was it light?
A. Becoming light, it was still a bit dark.
Q. So it was becoming light?
A. Yep.
Q. And were they all at the same or at different times?
A. No, they were at the same time.
Q. So becoming light?
A. Yeah.
At the conclusion of the cross-examination the following questions and answers were given (Transcript 33 Appeal Book 150 line 35):
Q. Do you agree that your memories of these allegations are very vague.
A. Yeah.
Q. Each of the allegations you described started off with you coming out of a sleep, is that right?
A. Yes.
Q. In relation to these allegations I'd suggest to you that the accused never took your hand and placed it on to his penis, what do you say about that?
A. Well he did.
Q. I'd suggest to you that he never licked you on or near the vagina, what do you say about that?
A. I don't agree.
Q. I'd suggest to you that he did not act or do anything in an any improper way at all, what do you say about that?
A. I don't agree.
Q. You got on with him pretty well didn't you?
A. Not really, I didn't talk to him that much.
The complainant was re-examined by the Crown Prosecutor. She accepted that she was "vague" about some details such as the actual configuration of her room, but insisted that she was not vague about the two incidents she had described relating to the appellant's sexual behaviour towards her.
The complainant's mother gave evidence. She was not aware of the incidents until she had been told by her daughter in September 2007. She gave evidence, however, of the appellant's usual pattern of movements after waking up on most working days. She said that he would normally get up around abut 5.20 am. He would go to the bathroom and then get his clothes out of the wardrobe, lay them on the end of the bed and go downstairs and make his breakfast. Sometimes, not every day, he would go for a walk in the morning. Shortly before work he would have a shower and then put his work clothes on. Normally he would have had his breakfast, his coffee and a walk before he put his work clothes on.
The complainant's mother said she would get up shortly before the appellant went to work. It was her custom to go downstairs to say goodbye to him before he left. This was normally between about ten to seven and five past seven. He would leave for work "at sevenish".
The appellant gave evidence and denied the sexual incidents. He confirmed that most mornings he would be awoken by his alarm which went off at twenty past five. Depending on the weather conditions, he would go to the bathroom, get dressed and then go for a walk. He would wear shorts, sneakers and a T-shirt or a tracksuit, woolly top and sneakers if it were cold or wet. He confirmed that he would leave for work about five to seven or five past seven as his work start time was at 7.30 am.
The appellant said that if he went for a walk he would return home at around about ten past six in the morning. If he didn't go for a walk he would stay in bed till about ten past six. He would then go downstairs, make two cups of coffee and start preparing his breakfast, smoko and lunch. Normally, he would come back upstairs at about twenty to seven and shower, get dressed and go to work. It was at that stage that he would put his uniform on, after he had had a shower.
He agreed that his uniform was King Gee pants, safety shoes and a shirt. He agreed that on occasions he would go into the complainant's bedroom in the morning. If he were walking past and the light had been left on, he would quickly open the door, turn the light off, shut the door and go downstairs. In cross-examination he was asked about these matters (Transcript 11 December 2008 page 12 Appeal Book 207):
"Q. So why did you close the door in those circumstances when the linen press light was left on, why did you close the door in the morning, A's door.
A. A courtesy thing.
Q. But MS's door was still open, is that right?
A. That's correct.
Q. And did you close MS's door?
A. No I did not.
Q. And my question is why did you only close A's door?
A. Well [she] was a light sleeper, MS could sleep through an earthquake.
Q. And what time do you say you closed the door in the morning. A's door.
A. Well, if I was going for a walk it will be on my way downstairs to go for a walk and failing that, it would be when I got out of bed and got dressed to go downstairs to have breakfast and make smoko and lunch."
Grounds of Appeal (Conviction)
There were a number of grounds of appeal filed in relation to the appellant's conviction. Mr Thangaraj SC appeared for the appellant on the appeal. He had not drafted the original grounds of appeal. Nor had he prepared the written submissions in support of those grounds. In the event, Senior Counsel indicated that he proposed to rely on one ground of appeal only in relation to the conviction, namely that the verdict had been unreasonable.
Mr Thangaraj accepted that this had been a trial within a small compass. Essentially, the jury had to determine whether they could accept the evidence of the complainant as being sufficient to find the appellant guilty beyond reasonable doubt. Mr Thangaraj pointed to the fact that his client had denied guilt throughout. He had, when confronted by the complainant in 25 January 2008 not only denied that he had behaved improperly towards her, but suggested that she discuss the matter with her mother. Later when he spoke to the complainant's mother he suggested she take the matter to the police. These were not, counsel argued, the responses of a guilty man.
Mr Thangaraj, in his ultimate submissions, placed reliance on a number of matters. These included the fact that the complainant had not reported the matter to her mother for several years. She had not told her brother about the incidents. Secondly, Senior Counsel placed particular reliance on the unlikelihood of the events having occurred in the time-frame ascribed to them by the complainant. There were two reasons for this. One was the evidence relating to the contractors working in the house in the two-month period before Christmas of 2004. Secondly, and more importantly, was the evidence of the appellant that he did not put on his work clothes until shortly before 7am, at least on the mornings when he went for a walk. It was clear, Mr Thangaraj submitted, that the appellant was not clothed in his uniform at 6am, or even close to 6am at all. Added to this, was the complainant's evidence that these incidents happened on a regular basis at about the same time. On the complainant's evidence, even though the incidents were occurring on a regular basis over a period of many months, it was always "dark becoming light" when the incidents happened. This, counsel said, was most unlikely.
The Crown's response to these arguments was equally straightforward. Essentially, the Crown submitted that this was a case where the ultimate question turned on whether the jury could accept the complainant's evidence. The Crown submitted that the verdicts demonstrated amply that, having heard all the evidence, the jury accepted the evidence of the complainant.
Secondly, the Crown pointed to the fact that the complainant's evidence supporting the counts on the indictment was given quite clearly and directly. There was no vagueness in relation to the actual incidents or her description of them. There was no issue that it was the appellant she had seen on the one occasion and, by inference it was he who had been involved in the later two incidents occurring at the one time. The evidence that she heard the appellant's belt being unbuckled was particularly compelling, the Crown said. If the incidents occurred, there could be no doubt that it was the appellant who had carried them out.
The Crown accepted that it may have been risky to carry out the offences while others were in the house. However, it was a calculated risk, particularly in light of the fact that the complainant's brother was a heavy sleeper and the complainant's mother followed the habit of remaining in bed until about 7 am each day.
The Crown accepted that the appellant had denied the allegations and that he had done so in forthright terms during the "pretext" telephone call.
In relation to any suggestion of a lack of detail or a vagueness concerning the complainant's evidence, the Crown reminded this Court that the complainant was aged 9 or 10 at the time of the incidents. She was only 14 at the time of the interview and 15 at the time when she gave evidence at trial. An analysis of the detail she gave revealed that it was as much as might be expected of a young person describing several short incidents in circumstances where she did not actually see what happened. Despite those limitations, the complainant had been able to isolate the three different offences. She gave evidence explaining why she had not told her mother ("I didn't know it was the right thing and I was confused ... I just didn't know": Transcript 40, Appeal Book 157). However, she did give a precise level of detail about these incidents, the Crown said. She could remember what she was wearing. She could remember what the appellant was wearing and she was able to describe where he was in relation to her in the bedroom. The Crown also pointed out that there was objective evidence (from the appellant himself) that on occasions he did go to the complainant's room in the morning. There was an acceptance that, in the mornings, he was proximate to her room and in fact entered it on occasions. Given this pattern of behaviour, his presence in her room would not have excited significant attention from the other occupants.
The Crown accepted that there was no evidence that the appellant had made any threats to the complainant. However, there was an unusual aspect to the circumstances in that the complainant had pretended to be asleep during the duration of the occasions when the incidents occurred. Consequently there had been no occasion for the appellant to make any threats to her.
Resolution
The task of the Court of Criminal Appeal in an "unreasonableness" appeal has recently been restated by the High Court of Australia in SKA v R [2011] HCA 13; 85 ALJR 571. In the plurality judgment of French CJ, Gummow and Kiefel JJ, it was stated at [11]-[14]:
"11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R (1994) 181 CLR 487 at 493 by Mason CJ, Deane, Dawson and Toohey JJ:
'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'
12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R ( 2002) 213 CLR 606 at [58], McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.'
13 T he starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say (at 494):
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'
...
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act , by applying the test set down in M and restated in MFA , the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality' ( Morris v R [1987] HCA 50; 163 CLR 454 at 473). In M , Mason CJ, Deane, Dawson and Toohey JJ stated (at 492-493):
'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."
In the present matter, having regard to the grounds of appeal relied on by the appellant, it is this Court's task to make an independent assessment of the whole of the evidence, paying special attention to those matters relied upon by the appellant in its submission, to determine whether the finding of guilt by the jury can be supported.
In making its own assessment, this Court must however bear in mind the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and, in that regard, the jury will have had the benefit of having seen and heard the witnesses: M v R [1994] HCA 63; (1994) 181 CLR 487 at 493. This qualification is particularly important in relation to the fact that the jury would have seen and heard the complainant's evidence, she being the only witness whose credit and reliability was fundamental to the prosecution case.
The simple answer to the appellant's submissions is that the critical evidence of the complainant must have been accepted by the jury. By this I mean the detailed evidence of what she said the appellant did to her. A reading of this evidence demonstrates that she did not waver in the precision of these important facts in any manner at all.
I accept that there is room for doubt as to her recollection that the incidents occurred at around six in the morning on each occasion. Almost certainly, that is not correct. It can be seen, however, that the complainant's first mention of the time occurs in the recorded interview. It was a very tentative estimate at that stage although she expressed herself with more certainty during her evidence at trial. Her recollection of the timing of the incidents was not, however, challenged during her cross-examination. Since there was no challenge to it, the inherent uncertainty that each incident took place at the same time each day becomes of less overall significance. Moreover, if in fact each incident occurred at around a quarter or ten to seven in the morning (or certainly later than 6 am), this does not essentially undermine the validity of her certainty that the incidents occurred in the manner she described. I accept that the timing issue has the capacity to pose a possible question mark over the reliability of her evidence, but that question mark is dispelled when her powerful adherence to the happening of the central incidents is examined. This is more so the case when one takes into account the fact that the jury had the advantage of seeing and hearing her evidence (and indeed hearing and seeing the evidence of the appellant). In those circumstances I conclude that no miscarriage of justice has occurred.
Having made my own independent assessment of the evidence, and taking into account the submissions of Mr Thangaraj for the appellant, I have concluded that, for my part, I have no doubt as to the guilt of the appellant. In reaching this conclusion I have of course taken into particular account particularly the fact that the appellant denied any impropriety both in his conversations with the complainant, her mother and the police. I take into account also that there was delay in the making of a complaint although there was an adequate explanation given for this by the complainant. None of these matters, in my opinion, undermines the force of the complainant's certainty about the manner in which the incidents occurred and the detail of how they were carried out upon her.
For these reasons I conclude as a matter of fact, that it was well open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. I would propose that the conviction appeal be dismissed.
Sentence Appeal
The only ground pressed by Mr Thangaraj was that the sentence was manifestly excessive. An error of this kind occurs where the order under consideration is said to be "unreasonable or plainly unjust": House v King (1936) 55 CLR 499. As was stated by Dixon, Evatt and McTiernan JJ:
"It may not appear how the primary judge reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
See also Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 538-539 [58]-[59]; and 542-543 at [73]-[75].
The matters relied on by the appellant are, first, the contents of a discussion during the sentencing hearing of matters relating to the standard non-parole period for each of the offences, an asserted error of the kind prohibited by the reasoning of the High Court in Muldrock v The Queen [2011] HCA 39.
Secondly, the written submissions had identified a failure to make an express finding regarding special circumstances. Thirdly, there was a failure to reflect the principles of proportionality and totality in the structure of the sentences. Finally there was a reference to statistics published by the Judicial Commission which, it was alleged, cast doubt upon the reasonableness of the sentences imposed.
As to the first matter, I think that some care must be taken by an appellate court when an argument is advanced based upon remarks passed during a sentence hearing. There will often be general discussion between the bench and counsel which is not particularly focused, is tentative in content and which does not result in the matter under discussion making its way into the final decision. The circumstances revealed in the present matter are a very good example of this.
After the jury had returned with its verdict of guilty, there was a discussion in court about standing the matter over for a sentence hearing. This discussion took place on 12 December 2008. In fact, the comments that were relied on by Mr Thangaraj occurred in this discussion well before the sentencing hearing, which did not take place until 6 March 2009. The particular comments by the trial judge occurred in the context of counsel asking whether the judge required written submissions. His Honour made some general remarks in the course of which he expressed his concern about the way in which the standard non-parole periods operated, particularly the standard non-parole period for a mid-range indecent assault. His Honour said that he found this "a very difficult area" and said that he would welcome submissions. The discussion really went no further than that.
The sentencing hearing, as I have said, occurred on 6 March 2009. There was again some discussion concerning the topic of standard non-parole periods, both for the s 61J offences and the indecent assault offence. The Crown, however, submitted to his Honour that, in none of the offences, would it be appropriate for the Court to be bound by the standard non-parole period because, in the Crown submissions, each of the matters fell below the mid-range of seriousness. In that respect, the submissions of the defence and those of the Crown were in total agreement. On this second occasion, there was no discussion between the bench and counsel of the kind that had emerged on the earlier occasion following the taking of the verdicts.
His Honour imposed sentence on 27 March 2009. His Honour's remarks on sentence are well structured and fairly reflect the course of the evidence at trial. At appeal book 45-46 his Honour said:
"The offence of sexual intercourse without consent which is aggravated by the person concerned, the complainant being under the authority of the perpetrator, carries the maximum sentence of 20 years and a standard non-parol period of 10 years. They are the penalties for the first two offences. For the third offence of indecent assault the maximum sentence is 7 years and there is a standard non-parole period of 5 years.
A standard non-parole period applies if a person is being convicted after a trial and if a judge determines that the offences are at least of mid-range significance...... In sentencing I am required to have regard to both the standard non-parole period and the maximum sentence as two guide posts, regardless of where I determine or how I determine the seriousness of the offence. If I determine the offence is of mid-range significance and in circumstances where the offender is convicted after trial and expresses no remorse and no contrition, then it would be difficult for me to do anything but impose a non-parole period of 10 years ..... The sucking of a girl's vagina against her will in my opinion is a serious matter. It is something which would cause a young girl to be very frightened. It is a very abusive act. The Court's have said you have to look at all the circumstances. There is no strict categorisation. I look at this matter and I take into account the following:-
There were no threats, there were no promises, there were no inducements. There was no physical damage caused, and the licking, though disgusting, though causing her considerable upset, did not cause her any other damage. Therefore I would conclude that I should treat this as a less than mid-range offence.
The offence of indecent assault with a maximum sentence of 7 years and a standard non-parole period of 5 years has its own problems. The Parliament has indicated that for a mid-range offence there is potential penalty in excess of 50 per cent of the maximum sentence. It is difficult for me personally to understand that but I must accept it, I cannot argue with the fact that that is what the Parliament has provided.
In this particular case, the indecent assault offence was committed at the same time as the second offence charged, and in my opinion the sentence for that indecent assault offence should be concurrent with the sentence for the second offence."
It is clear from the sentence that was imposed for the indecent assault and the manner in which it was structured within the remaining sentences that his Honour clearly accepted that it also should be treated as a less than mid-range offence.
In his remarks on sentence, the judge carefully analysed the appellant's subjective circumstances. He treated him as a person of previous good character and noted carefully his personal and work history. It was necessary for his Honour to find that there was no remorse and that, since the appellant maintained his innocence, he was in those circumstances unable to make any finding regarding rehabilitation.
The sentencing judge took into account the victim impact statement presented by the Crown on behalf of the complainant. It was written by a psychologist. His Honour took it into account as being consistent with the evidence given by the complainant's mother during the trial that the complainant was very badly affected by these events. His honour said:
"Any girl who is assaulted in the way that has been proved here obviously would be likely to be very severely affected. To be assaulted by someone who is a stepparent and who has responsibilities for your care, at least in part, is a very serious matter. Someone who should be protecting you, doing this type of thing to you, makes it all the worse. The offences are serious ones ..."
At the end of the remarks of sentence, his Honour said that, in his opinion, there was no alternative to a sentence of full time imprisonment. He then said:
"There are two separate incidents the subject of charges. It is clear from the evidence of the complainant that this occurred more than twice but only two particular incidents are charged. I consider that the first offence should have a non-parole period of 5 years, each of the sexual intercourse without consent offences, and there should be some slight cumulation between the first and second offences. The third offence should have a sentence of 3 years, a non-parole period of 3 years and it would be concurrent with the first two because the offence was committed at the same time as the second offence."
His Honour then imposed the sentences to which I have earlier made reference.
In my opinion, none of the complaints made by Mr Thangaraj has any substance. As to the first, I have pointed that although there was some desultory conversation between counsel and the bench on 12 December 2008, it had no bearing on the actual sentencing submissions nor on the ultimate sentence imposed or on the reasoning involved in the imposition of those sentences. An appellate court should be slow to take tentative remarks made in the course of the hearing as indicative of an error when that error is not reflected in the final decision reached by the trial court.
None of the other complaints have any substance to them. It is very clear that his Honour regarded himself as bound to have regard to both the standard non-parole periods and the maximum penalty. There was nothing in Muldrock that suggests to the contrary. Further, there was nothing in his Honour's reasons to show that he had fallen into the type of error that was involved in the Muldrock decision. Rather, the overall tenor of his Honour's decision demonstrates that he had regard to all the facts that were relevant to sentencing and reached an "instinctive" conclusion based upon his reaction to all those matters. There was no two-stage sentencing involved.
Further, it is also clear that his Honour varied the statutory ratio of the three sentences and, flowing from that, the overall sentence. To vary the ratio in this way meant that his Honour must have made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), although his Honour did not expressly say so.
It is also clear that the principles of totality and proportionality were considered and taken into account. The indecent assault charge was made entirely concurrent with count 2 in recognition of the fact that the two incidents occurred at the one time. Secondly, the accumulation, limited though it was, of one year to acknowledge the separate occasions of offending in each of the two s 61J offences was appropriate in the circumstances and was due recognition of the appropriate principles.
Finally, the reference in the written submissions to the statistics available from the Judicial Commission is a matter that is required to be approached with considerable caution. As the Crown pointed out, only one page of the statistics annexed to the written submission related to sentences in the District Court. The remaining three pages concerned matters dealt with in the Local Court. The necessary caution is well expressed in Hili v The Queen by the plurality at paras [53] to [55]. In the present matter, there is nothing in the written submissions or the statistics to which reference has been made that, to my mind, cast any doubt upon the appropriateness of the sentences imposed by his Honour.
For these reasons, I would grant leave to appeal against sentence but dismiss the appeal.
I propose the following orders:-
1. Appeal against conviction is dismissed.
2. Leave to appeal against sentence is granted.
3. Appeal against sentence is dismissed.
SIMPSON J: I have read in draft the judgment of Whealy JA, and agree with the orders his Honour proposes, and, substantially, with his reasons. Having regard to the decision of the High Court in SKA v The Queen [2011] HCA 13 I propose to state my own approach to the sole ground argued on the conviction appeal. There are two aspects of the evidence which, in my opinion, call for close scrutiny.
As Whealy JA has recounted, the complainant's evidence was given, in the first instance, by way of an interview with her by Detective Senior Constable Megan Fawkner. The quality of the video recording was poor, the jury had, effectively, only the sound component. However, the complainant also gave oral evidence, and was cross-examined, and the jury had ample opportunity to observe her.
Essentially, the complainant gave evidence of two separate occasions on which, she said, the appellant had sexually abused her. Each incident occurred between 1 September 2003 and 9 July 2004. These gave rise to the three counts on the indictment. The complaint said that each incident occurred early in the morning "before people were awake" when she was still in bed. She gave an account of the appellant entering her bedroom, pulling her pants down, and licking her vagina. The event giving rise to the indecent assault count involved the appellant pulling down his own pants, and putting her hand on his penis.
Although the appellant was ultimately charged only in relation to two occasions, it was apparent from the complainant's interview that what she alleged was a regular occurrence. For example, she said:
"In the mornings before people were awake, he would come in and pull the blankets back and pull my pants down and lick me ... he would just pull my pants down and just lick me ..."
She was then asked to focus upon one incident at a time, and did so.
It was the complainant's evidence concerning the surrounding circumstances that gave rise to the issues argued on appeal, and the contention that the verdicts were unreasonable.
The complainant said that, when the appellant entered the room, she pretended to be asleep, and just "laid there". She did not open her eyes and did not see the appellant. She knew it was the appellant because he got up early to go to work, that he and her brother were the only two males in the house, and she knew that her brother, who had a habit of sleeping in late, would not have done it. She then said that on one occasion she had seen the appellant walk out the door, just after he had finished touching her. She said that on the occasion of the indecent assault, she thought that he was wearing his work clothes, which included green pants.
In cross-examination the complainant confirmed that the perpetrator of the offences had been wearing work clothes, including green pants. She agreed that she had not seen the person enter the room, but she could hear him undoing the belt that he wore with his pants. He was the only member of the household who wore a belt with a buckle.
The complainant was asked about the time of day at which these events occurred, and said that they were all at the same time, about 6.00 am, when it was "still a bit dark". (AB 146)
It was put to the complainant that, during the period specified in the indictment, some renovation of an en suite had been undertaken, and that this required the family to get out of bed a bit earlier than normal. She said that this was so, but "only the tiniest bit earlier". The only significance attributed to this evidence on the appeal was that the presence of the workmen in the house rendered it more unlikely that the appellant would conduct himself as she alleged.
The complainant rejected propositions put to her that these things did not occur.
The complainant's mother gave evidence that, it was contended, cast doubt upon the complainant's credibility, or reliability, in a specific respect. The relevant evidence went to the appellant's early morning routine. The complainant's mother said that his usual practice was to get up at about 5.20 am, lay out his work clothes on the bed, and go downstairs and prepare breakfast. On some mornings he went for a walk. Shortly before leaving for work he dressed in his work clothes. He left for work at about 7.00 am.
The points made by senior counsel on the appeal in respect of the complainant's evidence were limited. It was argued that the mother's evidence concerning the appellant's morning routine was inconsistent with the complainant's evidence concerning the time of the appellant's incursions into her bedroom, such as to cast real doubt upon the complainant's reliability. That was because, on the mother's evidence, the appellant was not dressed in his work clothes until just before 7.00 am; on the complainant's evidence, the events occurred (at the same time every morning) at 6.00 am, but at a time when the appellant was dressed in his work clothes.
On analysis, the argument depends heavily upon imposing undue precision on the complainant's estimate of the time of day when the offences were committed. A jury, approaching the matter with the common sense they are traditionally urged to apply, may well (and almost certainly would) have regarded the complainant's evidence of the time as no more than an estimate. This was a 15 year old (at the time of giving evidence), recalling events of five years earlier (when she was 10 years of age, and just emerging from sleep). In my opinion, it is unlikely that the jury considered the estimate of 6.00 am by the complainant as an essential part of the Crown case.
Certainly, performing the function I am required by M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606 and SKA to perform, I place little weight on the complainant's estimate of the time of day. It is sufficient to accept that the incidents occurred in the early morning, as the appellant was leaving for work. In this respect the complainant's evidence was unshaken, and was not in conflict with that of her mother.
The complainant was also extensively cross-examined about her failure to report, to her mother or anybody else, her allegations. Little was made of this in oral submissions, and for good reason. I would attribute no significant weight to this circumstance, and the Court was not urged to do otherwise.
The most troublesome aspect of the evidence, in my opinion, is the appellant's responses when confronted with the complainant's allegations. This first occurred when the complainant, with the assistance of investigating police, telephoned the appellant. This occurred on 25 January 2008. The appellant, from the beginning, said that he did not know what she was talking about. He said:
"[A], the accusations that you are making are just, you know, they're, to say the very least, they're just crazy. You know, I, I don't, um, you know, I, my, my, you know, I don't know, I don't really know what to say to you."
He told her that he thought she did not fully understand the implications of what she was saying, and suggested that she talk to her mother, and that the course of action then to be taken was "entirely up to your mother". In one answer, he said:
"Well, like I said, [A], the, the, you speak to your mother about out [sic] it. There are, ah, there's a course of action, um, that your mother will suggest to you, and, um, you know, ah that's as far as, that's all I can say to you. I, I just find it quite, ah, you know, like it's been, um, I don't know how many years now, but, ah, certainly two or three anyway, um, and you know, I just find it, hah, all of a sudden it's just, um, come out of nowhere, so, um, yeah."
A little later, he said:
"[A], well, [A], as I said, I, I don't, ah, I have got nothing else to say, other than the fact that I, um, you know, are, these things didn't happen so. You've obviously convinced yourself in your mind that they have happened so, you know, you're goin' to have to go to your mother and then your mother is going to make the, um, decision, where she goes from there. You know, like this is, you know, yeah, that's all I can suggest to you."
Even more surprising is the appellant's response to the complainant's mother, when she made a similar telephone call. The transcript of that conversation was not in evidence. Moreover, the complainant's mother was not asked, either in evidence in chief or in cross-examination, about it. Instead, evidence was given, indirectly, by Detective Fawkner. The evidence was limited to this:
"Q. There was also another phone call made between the mother, ... and the accused, is that right;
A. That's correct.
Q. And during the course of that conversation he also denied ever doing anything to [the complainant], correct?
A. That's correct.
Q. And he also suggested to the mother that if she wanted to take it any further that she should take the matter to the police?
A. That's correct."
As senior counsel argued, these are not the responses one would ordinarily anticipate from a guilty man. However, they have to seen in the light of the relationship between the participants. The appellant and the complainant's mother had had a bitter divorce. The appellant acknowledged that he was immediately suspicious that it was the complainant's mother who was behind her allegations, and who put her up to making the telephone call.
The evidence warranted careful consideration. However, in the end, it was evidence that had to be seen in the context of the entirety of the case, including the jury's assessment of the reliability of the complainant, as well as their assessment of the appellant in giving oral evidence. In my opinion it was open to the jury to conclude, notwithstanding the appellant's responses, that the complainant was telling the truth about the events of which she spoke. Giving full weight to the matters favourable to the appellant, I am satisfied that these were insufficient to give rise to a reasonable doubt about his guilt.
I would therefore dismiss the appeal against conviction.
For the reasons given by Whealy JA, I would grant leave to appeal against sentence but dismiss the appeal.
HISLOP J : I agree with Whealy JA.
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Amendments
28 February 2012 - Anonymise transcript - one word.
Amended paragraphs: 16
Decision last updated: 28 February 2012
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