TC v The Queen
[2011] VSCA 190
•23 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0784 |
| TC |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN JA and COGHLAN and ALMOND AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 May 2011 | |
DATE OF JUDGMENT: | 1 September 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 190 | |
JUDGMENT APPEALED FROM: | R v [TC] (Unreported, County Court at Bairnsdale, Judge Morrish, 17 August 2009) | |
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CRIMINAL LAW – Sexual offences – Evidence of numerous offences over a period of time – Prosecution relied on first occasion – Whether the first occasion was identifiable – Offences against several complainants tried together – Sexual offences and offences of violence tried together – Evidence cross-admissible – Character of accused put in issue by defence – Prosecution entitled to lead evidence of prior convictions for offences of violence.
CRIMINAL LAW – Sentence – Conviction on one count set aside – Offender re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C B Boyce | Robert Davis |
| For the Respondent | Mr P Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
After a trial in the County Court, the applicant was found guilty on three counts of indecent assault, six counts of incest, one count of committing an indecent act with a child under 16, one count of threat to kill and three counts of common assault. The jury found the applicant not guilty on two counts of an indecent act with a child under 16, six counts of incest and a count of unlawful imprisonment.
A plea was conducted and a total effective sentence of 13 years’ imprisonment with a minimum term of nine years’ imprisonment was imposed upon the applicant.
The applicant seeks leave to appeal against his conviction and sentence.
The victims of the alleged offences were the daughter (‘KT’), son (‘WT’) and the stepdaughters (‘LH’ and ‘VO’) of the applicant. The offences were alleged to have been committed between April 1989 and July 1995 at various places in Gippsland, where the applicant lived with his wife, ‘BH’, his children and stepchildren.
Offences against KT
Between 18 April 1989 and 18 April 1990 KT was nine years’ old. She said that the applicant frequently grabbed her breasts and flicked her nipples. She said that the applicant did this ‘whenever he felt like it’, as he was walking past her or was standing near her. The Crown relied on the first occasion as constituting a count of indecent assault (count 1).
The applicant separated from BH in September 1994. At that time he took KT to Warragul for a meal. On the way home the applicant told KT that he was going to leave her mother. According to KT the applicant said:
If I said something that I shouldn’t be tellin anybody, that I’d get slit from ear to ear. That is, it was between [the applicant] and I – anything that happens under the house roof, or anything like that, it was to stay.
KT said that she was scared and believed that the applicant would carry out the threat to slit her from ear to ear if she told anybody. The evidence constituted the count of threat to kill (count 8).
The applicant accused KT and LH of playing truant from school. KT said that the applicant ‘took me to the room and he pulled my pants down and struck me with the strap, just over and over again and then he stuck his finger in my eye and then he punched me in the face’. The evidence constituted a count of common assault (count 12). KT also gave evidence of other occasions of being struck by the applicant with a strap, garden hose, jug cord or stockwhip and said that it happened ‘every time we did something wrong or to him that was wrong’.
Offences committed against LH
The applicant’s occupation was that of an entertainer. When LH was aged 14 years, the applicant took her to one of his singing engagements. On the way, when LH was sitting beside the applicant in his car, according to LH:
He asked me to move over to the middle of the bench seat, so I moved over to the middle. He unzipped his pants and pulled out his penis and put my hand on his penis and made me rub him again up-down.
This conduct constituted a count of indecent act with a child under 16 (count 15).
While the car was still in motion, the applicant told LH to put his penis in her mouth and suck it. She complied, and the applicant put a hand on her head and made her head go up and down on his penis. The evidence constituted a count of incest (count 17).
A truck drove past and according to LH, the applicant:
… pushed me up to the sitting position and he pulled his pants up and he laughed, and the truck went and we kept driving and then he asked me to go back down there again … [I] laid down back on his lap and put his … penis in my mouth to suck again … it wasn’t nice … I remember I was gagging, like, it was like a choking feeling.
That conduct constituted another count of incest (count 18).
On the way home the applicant parked his car. LH said:
He got out of the car, I got out of the car and I just stood beside the car, and he came around to the side and he pulled his pants down and pulled out his penis and then he pulled up my dress and pulled down my knickers and … then just placed his penis … on top of my vagina. I started crying and quickly pulled up my pants and got in the car.
The conduct constituted a count of indecent assault (count 19).
During the summer months the applicant often took the children for a swim in the water tank on a neighbour’s property. LH said that she was taken across the tank on the applicant’s back and that he pulled her bathers aside and inserted a finger in her vagina. The conduct constituted a count of incest (count 23). LH said that the applicant behaved in the same way on a number of occasions. The Crown relied on the first occasion as constituting a count of incest.
When LH was 14 years’ old, and at home with the applicant after her mother had gone out, the applicant told LH to go into the bathroom. LH said the applicant:
… and I were in the bathroom and [the applicant] turned around and locked the bathroom door. He asked me to lie down on the floor … so I did, I lied down and took my knickers off and he started putting his fingers in my vagina. … He was kneeling in front of me while I was laying down looking up at the roof. … I was laying down flat and my legs were up, my knees were up.
After doing this, LH said that the applicant licked her vagina and inserted his tongue then asked LH to suck on his penis, which she did. That conduct constituted three counts of incest (counts 24, 25 and 26).
On the day on which KT said that she was assaulted by the applicant after alleging that she played truant, LH said that he also took LH to his bedroom, ‘shut the door and he turned around and he punched me … in the stomach and pushed me down onto the bed and he knelt down onto the bed and put his fingers in the corners of my eyes and pressed really hard and said that we had … wagged school and … then he said to pull my pants down and bend over on the bed and so I pulled my school dress up and pulled my underwear down and he knelt down over the bed and he used the belt, and I put my hands behind me, cause it was hurting, so he just kept belting me and I got marks up my legs and my arms’. The conduct constituted a count of common assault (count 28).
Offence committed against VO
VO said that when she was aged about 10 years, the applicant ‘grabbed’ her on the vagina over her clothing. That occurred on a number of occasions. The Crown relied on the first occasion as constituting a count of indecent assault (count 30). VO said that the applicant ‘would just grab … in a harsh motion’ and said that it hurt.
Offence committed against WT
The applicant punished WT for stealing a bottle of alcohol. WT said that he struck him with a jug cord and hit him across the face with the back of his hand. The applicant made WT bend over to touch his toes and then struck him between 16 and 24 times with the jug cord on his backside. WT said he had welts and bruising on his bottom and was unable to go to school the next day. The evidence founded count 32. WT said that he was punished by the applicant on numerous occasions.
Uncharged Acts and Similar fact evidence
The Crown relied upon evidence of a number of uncharged acts and evidence said to be of similar facts.
The Crown relied on both charged and uncharged acts said to have been committed by the applicant against other complainants. For example, when the counts in which LH was the complainant were considered, the Crown relied upon other sexual acts and misconduct committed against KT and VO. The Crown also relied upon uncharged acts committed against individual complainants as part of the evidence in proof of the charged acts in respect of that complainant. The prosecutor relied upon uncharged acts said to have taken place at or near specific charged acts and said the evidence was led in order to enable the evidence of the charged act to be assessed in its true context. The prosecutor also said that sexual assaults, which occurred on occasions other than the specific charged acts, could be used to demonstrate an improper sexual passion and to provide context.
As to the count of threat to kill, the Crown relied upon uncharged acts of a similar nature, together with other uncharged acts of violence, to show that KT was in fear of the applicant and that the applicant knew that she would take the threat seriously.
Unsafe and unsatisfactory
The first ground of the application for leave to appeal against conviction is that the verdicts on counts 1, 23 and 30 are unsafe and unsatisfactory in that they appeal to a notional first occasion in respect of which no positive evidence was given.
In respect of counts 1, 23 and 30, the prosecutor relied upon the first occasion in a course of conduct to found the count. Counsel for the applicant submitted that it was not possible to identify a first occasion in the evidence and said that the Crown relied upon a notional first occasion. It was contended that a lack of particularity caused procedural unfairness to the applicant for he could not exercise the right to object to the evidence on the ground of relevance, could not know how the charge might be answered and could not test the credibility of the Crown witnesses by reference to the surrounding circumstances. Further, it was contended that the lack of particularity meant that it could not be ensured that there was unanimity of the members of the jury as to a specific act by the accused and, in the event of conviction, the Court could not know the offence for which the applicant was to be punished and the record could not disclose an offence in respect of which the applicant might avail himself of a plea of autrefois acquit or autrefois convict.[1]
[1]See S v R (1989) 168 CLR 266; PPP v R [2010] VSCA 110, [42] (Redlich J).
In my opinion, the evidence did identify the alleged first occasion in respect of counts 1 and 23. A charged act may be particularised by referring to it as the first, last or other chronologically identified act in a series of similar uncharged acts.[2] The first occasion must be actual rather than notional. If the complainant cannot recall when the charged act occurred in a series of similar acts or differentiate in any other way between the charged act and other similar acts, the use of first occasion particularisation will be insufficient to overcome the problem of latent ambiguity.[3]
[2]DPP v His Honour Judge G D Lewis [1997] 1 VR 391, 398–400 (Tadgell JA); Johnson v Miller (1937) 59 CLR 467, 486 (Dixon J).
[3]R v DWB (2008) 20 VR 112.
As to count 1, KT said that the applicant’s touching of her breasts first occurred when she was aged nine years and was living at Labertouche and that this was the first sexual offending that was committed against her by the applicant. The witness did identify a particular occasion constituting the first instance of the commission of the offence. The ‘first occasion’ method of particularisation differentiated the act charged from the uncharged acts said to have occurred in the period covered by the count.
As to count 23, the evidence did identify the subject matter of the count. LH said:
[The applicant] came swimming in the tank as well and he asked me to hop on his back and he’d give me a piggy back ride across the tank, and while he was piggy backing me across the tank, he um, pulled my bathers aside, he put his arm up the back of himself and um pulled my bathers aside and put his fingers inside my vagina.
LH said that she got out of the tank in order to go home and the applicant asked her to get back in the tank. She said that on this occasion nothing else happened in the tank. She was then asked:
How frequently or how many times thereafter did it happen?
and said:
I’m not sure, but it – it was a number of times.
In my opinion, the evidence sufficiently identified a particular occasion which founded count 23. It was not necessary for the prosecutor to invoke the first occasion method of particularisation.
Count 30, however, is in a different category. VO said that when she was eight or nine years old the family went to live at Trafalgar and that while they were at Trafalgar, ‘[the applicant] would … grab me on the vagina …’. She said that ‘he would just grab … harsh motion’. The witness did not describe any particular incident but simply a general course of conduct.[4]
[4]Compare R v Osborne [2009] VSCA 88.
Counsel for the respondent conceded that there was a lack of specificity in the allegation which could give rise to latent duplicity, but contended that there was no substantial miscarriage of justice because the applicant’s defence was a complete denial of any wrongdoing and accordingly there existed no more than a theoretical possibility that, if more specific particularity as to dates was provided, the applicant would be better placed to answer the case being advanced against him.
In my opinion, the lack of identification of a particular incidence of offending did cause potential injustice to the applicant for it deprived him of the opportunity of mounting a detailed response to the allegation in addition to his general denial. In any event, the requirement of particularity serves a number of purposes apart from affording an accused procedural fairness by enabling an accused to exercise the right to object to evidence, answer the charge and test the credibility of the complainant by reference to the surrounding circumstances. Particularity also enables the trial judge to instruct the jury properly as to the law to be applied;[5] to ensure that there is unanimity of view by the jury as to a specific act by the accused;[6] in the event of conviction, to enable the Court to know the offence for which the defendant is to be punished;[7] and to ensure that the record discloses the offence of which a person has been acquitted or convicted in order for that person to avail himself or herself of a plea of autrefois acquit or autrefois convict.[8]
[5]S v R (1989) 168 CLR 266, 284 (Gaudron and McHugh JJ).
[6]Ibid 283 (Toohey J); 288 (Gaudron and McHugh JJ).
[7]Ibid 284 (Gaudron and McHugh JJ).
[8]Ibid 284 (Gaudron and McHugh JJ).
Accordingly, I am of the view that the conviction on count 30 should be set aside and that a verdict of acquittal should be entered on that count.
Cross-admissibility of evidence
Counsel for the applicant argued the next three grounds of the application for leave to appeal against conviction together. They are:
2.The learned trial judge erred in failing to order separate trials, namely, separate trials for each complainant in respect of sexual offences and a separate trial for the offences without any allegation of sexual offence.
3.The learned trial judge erred in ruling that evidence of uncharged acts was admissible and that the evidence of separate complainants was cross-admissible in trials of other complainants.
4.The learned trial judge erred (a) by failing to discharge the jury after evidence was adduced that the applicant had killed a dog, and (b) by permitting the prosecution to lead further evidence of dog killing.
Counsel for the applicant at trial contended that there should be four separate trials: a trial of the offences alleged against each complainant and a trial of the offences of violence. The same contention was advanced on appeal.
Whether the sexual offences should have been severed depended principally on whether the evidence of offences against one complainant was admissible in relation to offences alleged to have been committed against other complainants. Where evidence on one count is admissible on another, there is no point in ordering separate trials.[9] Counsel for the applicant submitted that the evidence did not disclose a common modus operandi or underlying unity and thus there was insufficient similarity to render the evidence cross-admissible.
[9]De Jesus v R (1986) 61 ALJR 1, 10 (Dawson J).
The trial judge refused the application for separate trials. She said that the evidence of each complainant was admissible in relation to the trial of the counts of other complainants because, ‘the evidence is capable of demonstrating the accused had an improper passion for each of the children in the household individually and as a group and that he acted out that passion.’
In my opinion, the ruling was correct. There was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. I consider that there was an underlying unity between the evidence of each complainant to be found in the fact that each complainant was a member of the same household and the applicant used his position as the head of that household to exploit the complainants.[10]
[10]See R v Papamitrou (2004) 7 VR 375. See also R v Christou [1995] 2 AC 596, 129 (Lord Taylor).
In my opinion, the offences of violence were also properly joined in one trial. While the offences of violence and the sexual offences were not ‘founded on the same facts or form part of a series of offences of the same or of similar character’,[11] the evidence showed why the applicant expected the complainants to submit to his frequent and brazen sexual assaults. The evidence also explained why the complainants, by reason of the acts of violence perpetrated by the applicant on them and their siblings, acquiesced in the applicant’s demands and did not make timely complaint. The count relating to WT was properly joined as he formed part of the household at the time of the commission of other offences and the complainants would have been aware of the acts of violence perpetrated by the applicant against WT.
[11]See Schedule 6, Rule 2 of the Crimes Act 1958.
The trial judge gave appropriate directions regarding separate trials, the need for the jury to carefully identify the evidence in respect of each count and separately consider the evidence relating to each count. In my opinion, there is no reason to suppose that the jury did not obey the directions.
As to uncharged acts, it is settled that evidence of uncharged acts may establish an improper sexual relationship or guilty passion which existed between the accused and the victim and which tended to make it more likely that the offence charged in the indictment was in fact committed.[12]
[12]See R v Beserick (1983) 30 NSWLR 510; Vonarx v R [1999] 3 VR 618; Nieterink v R (1999) 76 SASR 56.
Evidence was given that the applicant chained a Staffordshire terrier belonging to the family to a tree. He made the children line up and said that they were to watch what happened when someone did not listen. KT was told to hold the dog’s collar. The applicant began hitting the dog on the head with a sledgehammer and did so until the dog died.
The trial judge refused an application to discharge the jury and permitted the prosecution to lead evidence of the applicant killing another family dog.
Again, I am of the opinion that the evidence was admissible in that it was relevant to the applicant’s state of mind, for it explained the open and brazen nature of the sexual abuse meted out to members of his family. The evidence also explained the compliance of the complainants with the applicant’s demands. Finally, the evidence explained the complainants’ delay in making complaint. Counsel for the applicant at trial tried to neutralise the relevance of the evidence to the complainant’s failure to make timely complaint by stating that he would not raise any issue of delay in complaint. Nevertheless, the minds of the jury may well have turned to the question. Accordingly, I consider that the evidence was admissible even though the lack of timely complaint was not raised expressly by the defence.
Prior convictions
The next ground of the application for leave to appeal against conviction is as follows:
The learned trial judge erred in permitting the prosecution to lead evidence of the applicant’s prior convictions.
The applicant separated from the mother of the complainants and formed a de facto relationship with another woman, who had a five year old daughter. Three further children were born to the couple. The defence led evidence that the applicant had been a good father to his second family. There was no suggestion of inappropriate sexual behaviour on the part of the applicant towards their children. He was described as being gentle in his treatment of the children.
The trial judge ruled that the defence had put the applicant’s character in issue. Her Honour permitted the prosecutor to reopen his case and lead evidence of prior convictions of the applicant for recklessly causing injury, threatening to inflict serious injury and assault.
Counsel for the applicant submitted that the applicant did not put his character in issue. The evidence the defence adduced was limited to the manner in which the applicant treated the children of his second family. Counsel described the evidence as ‘negative propensity evidence’. Just as the Crown could lead evidence of other wrongdoing apart from that establishing a count on the presentment in order to demonstrate that the applicant had an illicit passion for the complainants, so the defence could lead evidence that the applicant had acted as a loving, gentle father to other children in order to render it less plausible that he sexually and violently assaulted the complainants.
It was also submitted that the trial judge erred in failing to exercise her discretion to exclude the evidence of the applicant’s prior convictions. Counsel for the applicant contended that the prejudice to the applicant was disproportionately high when compared with the negligible benefit he obtained from the evidence of his treatment of his second family.
I do not think that her Honour erred. Even though the purpose of defence counsel in calling the evidence was to draw a contrast with and weaken the force of the allegations made by the complainants, it was nevertheless evidence of good character. The picture painted of the applicant was that of a man who was a kind, fond parent who did not sexually abuse children. The potential advantage to the defence case of calling the evidence was significant, but the price of doing so was to put the applicant’s character in issue. I do not regard the benefit of the evidence as negligible. It has not been demonstrated, in my view, that the exercise of the trial judge’s discretion miscarried.
Directions as to uncharged acts
The next ground of the application for leave to appeal against conviction is that the trial judge erred by failing properly to explain to the jury the manner in which they were to use evidence of uncharged acts.
Counsel for the applicant submitted that the evidence of violence was not probative of sexual offending and vice versa. The directions given to the jury were criticised for failing to ensure that the jury did not use evidence of one type of offending in evaluating the evidence of a different type of offending. The evidence of violent offending was left admissible on the counts of sexual offences and evidence of sexual impropriety was left admissible on the counts of violent offending.
The short answer to the submission is that it was not necessary or appropriate to separate the violent and sexual offending. As I have said, the evidence of offences of violence perpetrated on the victims of the sexual offending was relevant to the states of mind of the complainants and the applicant in that it explained why the complainants were compliant victims of the applicant’s sexual abuse and that he felt able to commit brazen sexual offending. The trial judge, in my view, correctly directed the jury along those lines.
Sentence
As the sentence passed on count 30 has been set aside, the sentencing discretion has been reopened. Accordingly, I turn to the applicant’s personal circumstances.
The applicant is now 53 years old. He is one of six children. He left school at the age of 15 years to work with horses and in abattoirs. The applicant finally lived in Nar Nar Goon. When he was 26 years old, the applicant commenced a successful professional singing career.
In 1977 the applicant married BH and separated from her in September 1994. The applicant moved to New South Wales to live with another woman, who had a daughter from a previous relationship. The couple had three further children.
The applicant had six prior convictions from three court appearances, including convictions for recklessly causing injury, threatening to cause serious injury, using a firearm without permission and assault. The applicant had not previously been sentenced to a term of imprisonment.
Counsel for the applicant submitted that her Honour erred in failing to make a finding as to the applicant’s prospects of rehabilitation. She said:
I am unable to make a finding about your prospects for rehabilitation other than to repeat that there is no suggestion that you have committed any further offences.
While it could not be contended that the applicant had displayed insight into his behaviour or had sought treatment or had demonstrated remorse by making a plea, he could rely upon his blameless conduct over many years in caring for his second family, a matter attested to by a number of witnesses. For 15 years the applicant had been part of a loving, happy family. In my opinion, that circumstance was significant. It seems to me that the applicant’s prospects of rehabilitation were at least reasonable.
Counsel also criticised her Honour for imposing a sentence on count 18 which he said constituted double punishment for one course of conduct, which was interrupted by a passing truck, resulting in conviction on two counts of incest. I think something is to be said for the view that the sentence of another seven years’ imprisonment on the second count was excessive, a view which is not negated by the fact that the sentences were made concurrent.
Counsel for the applicant relied upon sentencing statistics, which showed between the period 2002 and 2007 the medium length of imprisonment for incest was four years’ imprisonment, the average length of imprisonment ranged from three years and six months to four years and two months and that sentences of six years’ imprisonment had been considered to be at the top of the range. While current sentencing practices are a factor to be taken into account, they cannot themselves dictate the sentence to be imposed upon a particular offender. Account must still be taken of an evaluation of the gravity of the offence and the mitigating and aggravating factors emerging from the offender’s personal circumstances.
I would re-sentence the applicant to the following terms of imprisonment:
Count 1: 6 months Count 8: 12 months Count 12: 12 months Count 15: 18 months Count 17: 6 years Count 18: 6 years Count 19: 18 months Count 23: 3 years Count 24: 6 years Count 25: 6 years Count 26: 6 years Count 28: 12 months Count 32: 12 months
I would cumulate three months of each of the sentences on counts 8, 12, 15, 19, 28 and 32 and nine months of each of the sentences on counts 25 and 26 and one year of the sentence on count 24 on each other and on the sentence imposed on count 17. The total effective sentence is 10 years’ imprisonment. I would impose a minimum term of seven years and six months’ imprisonment before the applicant is to be eligible for parole.
The applicant is to be sentenced as a serious sexual offender in respect of the counts after count 15. I do not consider that it is necessary to impose a sentence longer than that which is proportionate to the gravity of the offences in order to protect the community.
I would confirm the orders made below pursuant to the provisions of the Sex Offenders Registration Act 2004 and for the taking of a forensic sample.
COGHLAN AJA:
I agree that leave to appeal against conviction should be refused on counts 1, 8, 12, 15, 17, 18, 19, 23 - 26, 28 and 32 for the reasons set out by Buchanan JA.
I agree that leave to appeal against conviction should be granted on count 30 for the reasons set out by Buchanan JA and with the orders proposed by his Honour.
I agree that leave to appeal against sentence should be granted for the reasons stated by Buchanan JA and with the orders proposed by his Honour.
ALMOND AJA:
I have had the advantage of reading in draft the reasons for judgment of Buchanan JA. I agree with his Honour for the reasons he gives that the appeal against conviction on count 30 should be allowed and the applicant re-sentenced. I agree with the orders proposed.
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