Saenz v The Queen
[2011] VSCA 154
•25 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0808
| ENRIQUE SAENZ |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN and NEAVE JJA and KAYE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 May 2011 | |
DATE OF JUDGMENT: | 25 May 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 154 | |
JUDGMENT APPEALED FROM: | R v Saenz (Unreported, County Court of Victoria, Judge Gamble, 28 August 2009) | |
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CRIMINAL LAW – Attempted kidnapping – Evidence of complainant given by VATE tape – Attempted kidnapping in this case involved an assault or injury or threat of injury – Verdict not unsafe or unsatisfactory – Jury entitled to accept the account of the complainant.
CRIMINAL LAW – Sentence – Attempted kidnapping – Judge not required to consider the maximum sentence for child stealing – Rehabilitation – No discernable motive for offence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Theo Magazis & Assoc |
| For the Respondent | Mr D A Trapnell SC with Ms K Argiropoulos | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
After a trial in the County Court a jury found the applicant guilty on one count of attempted kidnapping. A plea was conducted and the applicant was sentenced to be imprisoned for a term of six years. A minimum term of three years’ and nine months’ imprisonment was fixed before the applicant was to be eligible for parole.
The applicant seeks leave to appeal against his conviction and sentence.
The principal Crown witness was the victim of the offence, a 14 year old girl.
When the girl was being driven home from school by her mother, a quarrel developed and the mother dropped off her daughter to walk a short distance home. Instead of walking directly to her house, the girl decided to walk to a park near the house.
As the girl walked along a road out of the park, she saw the applicant driving his car in the opposite direction as he entered the park. A short time later the girl noticed the applicant drive past her again, this time heading out of the park. The applicant stopped his car a short distance past the girl and pretended to be concerned about one of the tyres on his car. Her suspicions were aroused and she took a wide berth around the car.
The applicant began following the girl on foot. As she turned to look behind her, the applicant grabbed hold of her arm and tried to persuade her to return to his car, pretending to show her something. The girl said, amongst other things, ‘No thank you I would just like to walk home.’
Despite her protests, the applicant tightened his grip on the girl’s arm and attempted to forcefully take her to his car by turning her around to face him and then walking backwards with her towards his car, saying, ‘Come into my car’. The girl responded by physically pushing the applicant and pulling herself away. The applicant loosened his grip and the girl was able to run towards the park entrance. In doing so, however, one of her shoes fell off. As she turned and bent down to pick it up, the applicant pushed her to the ground. The girl managed to wriggle free from the applicant’s clutches and began to run away.
The applicant followed the girl in his car, driving past her and parking his car at the entrance to the park in an attempt to block her exit. The girl was able to run past the applicant’s car and then run to a nearby house.
The applicant drove out of the park and parked a short distance from the house in which the girl had sought refuge. The car was seen by the owner of the house and when the police arrived a short time later the applicant was found in the car and was arrested.
The girl was found by the owner of the house hiding behind a tree in the front garden. According to the owner of the house, the girl appeared dazed and upset and said she just wanted to speak to her mother. The girl’s mother arrived a short time later. She said that her daughter was in shock.
The applicant was arrested and taken to a police station. He admitted driving to the park and having seen a girl whose description matched that of the alleged victim as he drove into the park. The applicant however, denied getting out of his car or approaching the complainant.
No evidence was called by the defence.
The first ground of the application for leave to appeal against conviction is that the trial miscarried because the complainant gave evidence by means of a video recording.
Section 37B(1)(b) of the Evidence Act 1958[1] permitted that course in a proceeding relating to a charge for ‘an indictable offence which involves an assault on, or injury or threat of injury to, a person.’ In such a case the evidence-in-chief of a witness for the prosecution may be given in the form of an audio or video recording of a witness answering questions put to that person if the witness is a person with a cognitive impairment or is under the age of 18 years.
[1]See now Part 8.29 Division 5 of the Criminal Procedure Act 2009.
Counsel for the applicant submitted that s 37B(1)(b) only applied to offences in which assault, injury or threat of injury was an element, citing the statement of Redlich JA in R v Anders, that ‘It is to the elements of the offence that one must look to determine whether the VATE procedure is available’.[2] In that case it was held that the offence in question, stalking, always required proof of injury or threat of injury as it was conceded that ‘injury’ included mental harm. The present case raises the question whether s 37B could apply to an offence in which assault, injury or threat of injury was not always an element of the offence.
[2](2009) 193 A Crim R 202, [9]. See also R v Davis [2007] VSCA 276, [32]–[35]. Compare Rimanic v Business Licensing Authority [2001] VSC 400; R v McCrossen [1991] Tas R 1.
The application or threatened application of force is not always an element of the offence of kidnapping. Accordingly, a man who, stopped his motor car at bus stops, falsely alleged to lone women that the bus they were waiting for had broken down and offering them lifts, was properly convicted of kidnapping those who accepted his invitation.[3] The taking or carrying away may be achieved ‘by force or by fraud’.[4] Further, ‘force’ is not limited to assault, injury or threatened injury, but can encompass the exertion of moral force or authority, for example, by a teacher over a pupil.
[3]R v Cort [2004] QB 388.
[4]R v B [1984] A C 778, 800 (Lord Brandon).
Counsel for the applicant contended that s 37B(1) was not concerned with the means by which the will of a particular victim of kidnapping was overcome. The section only applied if assault, injury or threat of injury was always a necessary element of the offence. An offence only involves assault, injury or threat of injury, so it was said, if it necessarily involved one of those concepts in every case.
I do not agree. In my opinion, the relevant elements are those of the offence with which a particular accused has been charged. In the present case, an element of the offence against the applicant was the attempt to carry away the victim by the application of force. The applicant attempted to overcome the will of the victim by the application or physical force, not fraud or moral force. It was an element of the offence in this case that the applicant attempted to carry the complainant away in this fashion. It is not the point that in another case the element of force could be replaced by fraud. This offence did involve an assault upon, or injury or threat of injury to, the complainant.[5]
[5]Cf Pollard v DPP (1992) 63 A Crim R 383, 386 (Abadee J).
The evident purpose of s 37B is to protect children from a process that can cause them psychological harm, which the legislature perceived might result from children being required to give evidence in open court about events involving violence or threats of violence.[6] That purpose is best served by applying the section according to the nature of the particular offence before the Court.
[6]See section 1 of the Crimes (Sexual Offences) Act 1997 which provided that the purpose of s 37B was to alter the procedural and evidentiary rules relating to sexual offences and offences ‘involving violence or a threat of violence’ particularly so far as they related to children. See also the Second Reading Speech of the Attorney-General in relation to clause 37B in Parliamentary Debates, Legislative Assembly, 13 May 1991, p147.
It was submitted that s 37B might have operated to the disadvantage of an accused. Instead of being elicited in open court, critical Crown evidence took the form of a recorded conversation between the witness and a police officer, which took place before trial.[7]
[7]R v BAH (2002) 5 VR 517, [3] (Winneke P); R v Davis, above.
I assume for the sake of argument that the section did operate to the disadvantage of defendants.[8] Even so, while legislation circumscribing the rights of persons accused of crime is to be construed narrowly in order to preserve those rights save to the extent they are necessarily abridged, I do not think that consideration warrants the importation of the limitations into s 37B contended for by the applicant. The purpose of the section is evident.
[8]See, however, Victorian Law Reform Commission, Sexual Offences, Interim Report (2003), [6.60]-[6.61]; Victorian Law Reform Commission, Sexual Offences: Law and Procedure, Final Report (2004), [5.58].
The second ground of the application for leave to appeal against conviction is that the verdict is unsafe and unsatisfactory in that a properly instructed and reasonable jury ought to have had a reasonable doubt about the guilt of the applicant.
Counsel for the applicant submitted that there were a number of shortcomings in the Crown case. There was no evidence of any injury to the complainant or the applicant or of any damage to or soiling of the complainant’s clothing, notwithstanding her account of the force said to have been applied by the applicant and her struggles to get free. There was no DNA evidence linking the applicant to the complainant despite the contact between them. There was evidence that the applicant had a foreign accent yet the complainant did not give any evidence of such an accent. There were inconsistencies as to certain aspects of the events in the versions given by the complainant in the VATE tape and at the committal hearing. There was evidence that the applicant had consumed a bottle of wine and his breath smelled of alcohol yet the complainant did not say that she smelled any alcohol. The complainant gave evidence that the applicant had ‘spikish’ hair and was quite bald yet there was police evidence that he did not have spiky hair and was not at all bald. The complainant’s evidence that the applicant wore a shirt with buttons and with the sleeves rolled up was contradicted by the policeman who arrested the applicant. The complainant said the applicant was wearing blue jeans yet from the evidence of other witnesses it appeared that he was wearing black tracksuit pants. The complainant’s identification of the applicant from a photo board was said to be deficient in that the applicant was the only person in the photographs wearing a green shirt. The attack upon the complainant was said to have taken place in broad daylight in a public area by a man without any disguise. The applicant remained in the nearby vicinity for some 25 to 30 minutes. Finally, it appeared that the applicant was of good character.
Having considered the evidence, I think that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Bearing in mind that the jury has had the benefit of having seen and heard the complainant’s evidence, I am of the opinion that it would not be dangerous in all the circumstances to allow the verdict of guilty to stand.[9]
[9]M v R (1994) 181 CLR 487, 493, 494, 492-493, (Mason CJ, Deane, Dawson and Toohey JJ). See also SKA v R [2011] HCA 13.
At trial the defence case appeared to be twofold. There was a suggestion that the complainant had concocted the evidence and did so in order to get attention from her mother whom she believed was neglecting her and with whom she had argued that afternoon. The second strand to the defence case was mistaken identity.
In my opinion, the jury were entitled to accept the complainants’ account. As to the suggestion of concoction, the jury accepted the complainant’s testimony notwithstanding the criticisms of it, which were exposed by cross-examination and were put to the jury by counsel for the applicant in his address.
As to the suggestion of mistaken identity, although some of the characteristics of the assailant described by the complainant did not match the applicant, others did. The complainant said that her attacker was wearing a green polo shirt. The applicant was wearing such a shirt when he was arrested. She described the car to the woman who found her hiding in her garden and told her that the car’s number plate included the letters PKJ. Those letters did form part of the number plate displayed on the car the applicant was driving when arrested. The applicant was found near the scene of the attack.
Overall, I do not think that the jury must have entertained a doubt as to the applicant’s guilt.
The first ground of the application for leave to appeal against sentence is as follows:
The learned sentencing judge erred by declining to synthesise and weigh in the applicant’s favour the availability to the Crown of the offence of child stealing with which the applicant could have been charged.
Counsel for the applicant at the plea submitted that the sentencing judge ought to have had regard to the fact that the Crown could have prosecuted the applicant for the lesser offence of attempted child stealing and its maximum sentence of five years’ imprisonment. His Honour refused to do so, saying that the statutory offence of attempted child stealing would not have appropriately addressed the extent and character of the applicant’s conduct. Accordingly, the maximum penalty of 20 years’ imprisonment for the offence of attempted kidnapping remained a relevant sentencing consideration.
In my opinion, the sentencing judge was not bound to have regard to the statutory offence of attempted child stealing and its lesser maximum penalty. That offence is concerned with an attempt to unlawfully take away a child under the age of 16 years with intent to deprive any parent or guardian or any other person having lawful care of such child of the possession of the child. The essence of the offence is the attempt to deprive another person of possession of the child. That offence hardly met the nature of the offending committed by the applicant, who attempted to overcome by force the will of the victim. He did not merely attempt to deprive another person of custody of the victim.
The second ground of the application for leave to appeal against sentence is:
The learned sentencing judge erred by concluding that:
(a)the Crown’s inability to prove a motive for the applicant’s offending; and
(b)the absence in the evidence of an explanation for the applicant’s offending –
rendered the applicant:
(i) a continued risk to the community; and
(ii)possessed of prospects of rehabilitation which were no more than ‘good’.
The sentencing judge said that the Crown could not prove any particular motive on the part of the applicant and said that ‘does make it difficult for this Court to approach the question of your prospects of rehabilitation with the same degree of
confidence that might have otherwise been the case had there been an explanation for your behaviour’. Despite the applicant having reached the age of 49 years without any prior convictions and his strong family support, the sentencing judge found that his prospects of rehabilitation were no better than ‘good’.
In my opinion, his Honour did not fall into error. The judge catalogued and apparently took into account the applicant’s age, lack of prior convictions, good work history, a loving family and strong community support. Nevertheless, it was relevant to an assessment of the applicant’s prospects of rehabilitation that no reason for the offending could be identified, for it could not be demonstrated that there had been a reduction in the prospect of another like offence being committed by the removal of the motive or reason for the attack upon the complainant.
For the foregoing reasons, I would refuse leave to appeal against conviction and sentence.
NEAVE JA:
I agree, for the reasons given by Buchanan JA, that the applications for leave to appeal against conviction and sentence should be refused.
KAYE AJA:
I agree that, for the reasons stated by Buchanan JA, the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should both be dismissed.
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