Thrussell (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0256

ANDRE THRUSSELL (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the applicant or complainants, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant, the complainants and witnesses.

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JUDGES:	MAXWELL P, SANTAMARIA JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2017
DATE OF JUDGMENT:	20 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 386
JUDGMENT APPEALED FROM:	DPP v [Thrussell] (Unreported, County Court of Victoria, Judge Gaynor, 21 September 2016 (Conviction); 24 November 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Incest – Applicant convicted on one charge of incest – Acquittals on four other charges involving same complainant – Whether conviction unsafe – Credibility of complainant – Whether complainant had motive to lie – Whether verdicts inconsistent – Appeal dismissed.

EVIDENCE – Tendency evidence – Charged and uncharged acts – Whether evidence of uncharged acts probative of alleged tendency – Whether probative value substantially outweighed prejudicial effect – Evidence properly admitted – Evidence Act 2008 ss 97(1), 101(2).

CRIMINAL LAW – Appeal – Sentence – Incest – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Finding as to factual context – Whether reasonably open – Delay – Applicable sentencing practices – Whether sentence manifestly excessive – Plea of not guilty – Violence – Breach of trust – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H A Rattray	Stary Norton Halphen
For the Respondent	Mr B F Kissane QC with Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
SANTAMARIA JA
BEALE AJA:

Introduction

The applicant was tried on six charges of incest, one charge of intentionally causing injury, one charge of common law assault and one charge of an indecent act with a child under 16. The complainants were Sandra Thrussell and Vivian Thrussell, both daughters of the applicant. The applicant pleaded not guilty to all charges.

Following a six-day trial, the applicant was found guilty by unanimous jury verdict on the first charge of incest, which related to a particular incident described below. The applicant was acquitted on all remaining charges. He was sentenced to six years’ imprisonment with a non-parole period of four years.[2]
[2]There was also a declaration of 595 days of pre-sentence detention, a forensic sample order pursuant to s 464ZF of the Crimes Act 1958 and an order that the applicant report for 15 years pursuant to the Sex Offenders Registration Act 2004.

The applicant and his wife, Greta Jarrett, had eight children. The family had moved constantly within and outside Victoria. At various times, when they had housing difficulties, members of the family took up residence in a particular halfway house in Melbourne (‘the halfway house’).

The offending the subject of charge 1 was alleged to have taken place between 7 March 1989 and 6 March 1992, when the applicant and one of his daughters, Sandra, stayed at the halfway house for about a week. At the time, she was aged around 13.[3] The applicant was in his late 30s.
[3]At the trial, Sandra gave evidence that she was aged around 13 at the time. She also said that she stayed at the halfway house with her family from the age of eight until about the age of 13.

Sandra gave evidence that the applicant had sexual intercourse with her on a bottom bunk bed in the room which they shared at the halfway house. After the incident, she said, she had bled profusely from her vagina. She also recalled that, while they stayed together at the halfway house, the applicant would ‘repeat the procedure’ every few days. She said that, on this particular occasion, before sexually penetrating her, the applicant physically restrained her and forcefully removed her clothing. She also said that, afterwards, the bedsheets were stained with blood and were collected by a cleaner.

The applicant now seeks leave to appeal against conviction and sentence. For the reasons that follow, the applications for leave to appeal should be granted. The appeals, however, must be dismissed.

The issues

The applicant contends that:

(a) certain evidence which was admitted as tendency evidence should not have been admitted, because it lacked ‘significant probative value’[4] or because its probative value did not ‘substantially outweigh’ the prejudicial effect that it had on the applicant;[5]

(b) his conviction was unsafe; and

(c) the guilty verdict on charge 1 was inconsistent with the verdicts of acquittal on other charges in which Sandra was the complainant.

[4]Evidence Act 2008 s 97(1)(b) (the ‘Act’).

[5]Ibid s 101(2).

In order to evaluate these contentions, it will be necessary to consider evidence given by Sandra and one of her sisters, Tanya. Further, it will be necessary to evaluate the criticisms of the credibility and reliability of Sandra. At the hearing of the present application, counsel for the applicant said that Sandra had not only made false allegations about the applicant, but had lied to the jury on oath. It will be critical to consider the context in which this last contention is made.

As will appear below, Sandra is the mother of six children. In January 2014, she was involved in a traffic accident that also involved some of her children. At the time of the accident, it appears that Sandra was having difficulties in caring for her children and that the relevant child welfare authorities had been notified. As Sandra was required to remain in hospital, and none of her family members could be contacted, those authorities made provision that her children be placed in care.

During her cross-examination, Sandra was asked about a series of Facebook messages that took place between an account named ‘Betty Strickland’ and the applicant. The messages appear to reflect a dialogue between Sandra and the applicant in which, before the accident, she was asking for assistance in order to be in a position to care for her children. It appears that, after the accident, the children were placed in care. Sandra then sought to recover custody of them. The messages appear to suggest that she was asking the applicant for money. The dialogue ends with Sandra threatening the applicant. The messages were used to suggest that Sandra had a motive to lie about the applicant.

Sandra gave evidence that she was not responsible for the messages from ‘Betty Strickland’ to the applicant. During the hearing of the present application, however, the Crown all but conceded that her evidence was false and that she was the person behind the name ‘Betty Strickland’.

The tendency notice

Prior to the trial, the Crown served the applicant with notice of its intention to adduce tendency evidence at the trial (‘the tendency notice’).[6] The Crown sought to adduce evidence to prove tendencies of the applicant to act in a particular way. The tendencies were identified as follows:
[6]The Act s 97(1)(a).

1.[To] [b]egin to touch his two biological daughters in a sexual manner when they were about 3 years of age; and
2.to continue to touch his two biological daughters sexually as they grew older;
3.to place his penis and/or finger into the vagina of his daughters aged between 7 and 14; and

4.        That sexual offending often took place in in circumstances where he:–
(a)       was often intoxicated,[7] and
(b)       would isolate them from other family members,[8] and
(c)       physically assault and restrain them.[9]

[7]Charges 1–9.

[8]Charges 1–9.

[9]Charges 2–8.

The tendency evidence was said to be admissible in proof of each of the charges. The fact in issue to which the tendency evidence was said to be relevant in each case was whether the alleged conduct occurred.

Sandra was the complainant in respect of charge 1 (incest), charge 2 (intentionally causing serious injury), charge 3 (incest), charge 4 (incest) and charge 5 (incest). Vivian was the complainant in respect of charge 6 (incest), charge 7 (incest), charge 8 (common law assault) and charge 9 (indecent act with a child under 16).

In addition to the evidence of the charged offending, there was a body of evidence alleging uncharged offending against both complainants and a third daughter of the applicant, Erica Thrussell.[10] The admissibility of the tendency evidence, which will be summarised below, was determined before the jury was empanelled, by reference to the statements of the complainants and other witnesses.
[10]The applicant was not charged with any offences involving Erica. Erica was not a witness in the trial. The parties did not dispute that she was not unavailable within the meaning of s 65 of the Act. The Crown elected not to call her, and the defence did not object to this course.

Charges where Sandra Thrussell was the complainant
Charge 1: incest[11] (unanimous guilty verdict)

[11]The tendency notice described the relevant conduct as follows:

The accused placed his penis into the vagina of his daughters [Sandra] while they were staying at [the halfway house].

The circumstances of the offending in respect of charge 1, which took place at the halfway house, are described above.[12] At the trial, the Crown conceded that charge 1 was the only incident of sexual assault at the halfway house that could be particularised with the requisite specificity to plead a charge.
[12]See [5] above.

Charges 2 and 3: intentionally causing injury and incest[13] (acquitted)

[13]The tendency notice described the relevant conduct as follows:

[T]he accused was driving [Sandra Thrussell] home from the pub when he stopped the car and punched her in the head causing her to become unconscious he then removed her lower clothing and penetrated her vagina with his penis.

Some time between 7 March 1992 and 6 March 1994, the family lived in a caravan on a rural block of land in country Victoria. Sandra was aged 13 or 14. On one occasion, the applicant was driving back to the caravan from the local pub. Sandra was in the passenger seat. The applicant stopped the car, got out, opened the passenger door and punched Sandra in the head, causing her to become unconscious. The applicant then inserted his penis into her vagina and had sexual intercourse with her while she was unconscious. Sandra recalled that she awoke in the passenger seat with her legs hanging outside the open door. She was not wearing any pants or underpants, and her vagina was very sore and bleeding. She had also sustained a large swollen eye.

Charge 4: incest[14] (acquitted)

[14]The tendency notice described the relevant conduct as follows:

On another occasion … the accused again stopped while driving [Sandra Thrussell] back to the caravan grabbed her injured leg and twisted it causing her great pain before he removed her lower clothing and forced his penis into her vagina.

On a separate occasion, during the same period of time, Sandra sustained injuries to her leg and hip as she fell off a motorcycle that she had been driving in a paddock. Her mother told her to go to the shops with the applicant. The applicant went to the pub again, while Sandra remained in the car. On the drive back to the caravan, the applicant stopped the car, got out and twisted Sandra’s injured ankle, causing her pain. He then inserted his penis into her vagina and had sexual intercourse with her. Sandra verbally abused the applicant as he continued to have sexual intercourse with her. After he finished, the applicant told her, ‘Get your fucking pants on’.

Charge 5: incest[15] (acquitted)

[15]The tendency notice described the relevant conduct as follows:

On another occasion … the accused again stopped while driving [Sandra Thrussell] back to the caravan. On this occasion she ran from the car in an attempt to escape. The accused pursued her and pinned her to the ground before he removed her lower clothing and forced his penis into her vagina.

A few weeks later, Sandra again went into town with the applicant. On the drive back to the caravan, the applicant stopped the car. Sandra immediately got out of the car and ran into a nearby paddock to escape from the applicant. The applicant chased her down, inserted his penis into her vagina and had sexual intercourse with her.

Uncharged offending against Sandra Thrussell[16]

[16]The tendency notice described the relevant conduct as follows:

When [Sandra Thrussell] was about 10 or 11 she lived with the accused and her family in a caravan … the accused began to touch her body and feel her breasts more often.

The notice also described the second course of conduct, summarised in [21], as follows:

On at least 3 occasions when [Sandra] was about 10 or 11 and her family were living in a caravan … the accused forced her onto her bed on her stomach, tore her clothes from her body, punched her in the head and forced his penis into her vagina.

Some time between 7 March 1989 and 6 March 1991, the family lived in a caravan in the country. Sandra was aged 10 or 11. While drinking alcohol, the applicant had commented to his friends that he would ‘pop the cherry’ of Sandra; that is, he would be the first person to have sexual intercourse with her. At about that time, the applicant regularly touched Sandra’s body and commented on the shape of her breasts.

On at least three occasions during the same period of time, the applicant held Sandra by the stomach, forcefully removed her clothes and pinned her to the bed. It was alleged that he inserted his penis into her vagina and had sexual intercourse with her for up to 20 minutes.

Charges where Vivian Thrussell was the complainant
Charges 6, 7 and 8: incest and common law assault[17] (acquitted)

[17]The tendency notice described the relevant conduct as follows:

When [Vivian Thrussell] was about 7 and a half years of age she was staying with the accused at her sister’s unit … When no one else was around the accused said ‘I’m going to have sex with you’. He then removed her nightie and pursued her before catching her and pinning her to the floor. He inserted a finger into her vagina before he placed his penis into her vagina. As he penetrated her he slapped her face a number of times and told her to stop crying.

In January 1997, Vivian was living in a unit with her sister, Erica, her younger brother, Max Thrussell, and the applicant. Vivian was seven-and-a-half years old. One evening, while Erica was out of the unit, the applicant had been drinking. He was in the lounge room with Vivian. Max was in another part of the unit. The applicant began touching Vivian, tried to remove her nightdress and said ‘I’m going to have sex with you’. He then removed her nightdress, leaving her wearing only her underwear. She ran and hid under a coffee table. The applicant, who was observed by Vivian to be naked at the time, picked up the coffee table and moved it away from her. He held her down and inserted his fingers into her vagina. He then inserted his penis into her vagina and, as he was doing so, slapped her face while she was crying. He told her to stop crying.

Charge 9: indecent act with a child under 16[18] (acquitted)

[18]The tendency notice described the relevant conduct as follows:

On the night after the incident that was the subject of charges 6 to 8 the accused was laying in tehsame [sic] bed as the complainant and grabbed her hand and attempted to make him touch his penis. She refused and went to her own bed and went to sleep.

On the night after the incident the subject of charges 6, 7 and 8, Vivian was again in the unit with the applicant and Max. Erica was out of the unit, somewhere down the street. The applicant, Vivian and Max were all laying under the covers in the same bed. The applicant said, ‘Touch me, touch me’. Vivian said, ‘No’, after which the applicant grabbed her hand and tried to get her to touch his penis. He then said, ‘Your sister did it when she was your age, why can’t you?’ Vivian continued to resist before going to sleep in her own bed.

Uncharged offending against Vivian Thrussell[19]

[19]The tendency notice described the relevant conduct as follows:

On a night while [sic] staying with the accused … the accused took her to a hotel and she drank alcohol. She felt sick and drunk. She returned home and had a shower and passed out. When she regained consciousness the accused was on top of her and was moving his penis in and out of her vagina. She pulled away from him. When she woke some time later the accused was trying to put an object into her vagina.

After the applicant left the house of his daughter, Erica, he had no contact with Vivian until about November 2003, when Vivian was 15 years old. During that time, Vivian had been under the care and supervision of the Department of Human Services. Vivian later moved interstate to live with the applicant and her mother.

A short time after Vivian had been living with her parents, her mother left the applicant. Thereafter, Vivian alleged that the applicant would take her to the local pub almost every night. She said that she noticed that he was putting alcohol into her drinks.

One night between 25 December 2004 and 1 January 2005, the applicant took Vivian to the hotel, where they both drank alcohol. When she returned home with him, she felt sick and drunk. She had a shower and sat on the floor before she passed out. She gave evidence that she woke up naked in the applicant’s bed. She was lying on a towel and the applicant was naked, lying on top of her and moving his penis in and out of her vagina. A few seconds after she woke up, the applicant pulled away from her. He tried to pull her towards him, but she fell off the bed. She then passed out again. When she next woke up, he was trying to put an unknown object into her vagina. The object was black with a red mark around it and contained red writing. After a short time, she passed out again. When she woke up the following morning, she was lying in her own bed. The top of her legs were sore, and she noticed semen on her bedsheets, in her underwear and inside her vagina. The applicant was asleep on the floor. She got dressed and left the house.

A. Conviction
Proposed ground 1: admissibility of tendency evidence

The first proposed ground concerns the trial judge’s decision to admit evidence from Sandra and Tanya regarding an incident involving the applicant and Erica (‘the Erica incident’). The description of the conduct in the tendency notice is set out in the appendix attached to these reasons.

The evidence in question was summarised by the trial judge in her ruling on its admissibility as tendency evidence, as follows:

Finally, the prosecution seeks to lead evidence from each complainant of an alleged incident involving their older sister, [Erica Thrussell]. In broad terms, each complainant has described in her statement an incident where the accused man in the house where the family was then living had been drinking and ordered [Erica] to her room which he entered with her and shut the door. Their mother had left the house. Thereafter [Erica] was heard screaming words such as, ‘Don’t dad,’ and attempt to get the accused to open the door failed.
[Sandra] then left the house covertly, went to a neighbour’s house and called police. When the police attended, they opened the door and the accused was seen in a state of undress standing at the end of the bed while [Erica] was on the bed in a state of undress. There are marked differences in the version of each. [Sandra] says she was aged between 5 and 8, … that police kicked in the door, that her father wasn’t wearing any pants, and [Erica] was lying on the bed wearing a shirt but no pants or underpants, and her legs were tied with her jeans to the end of bed keeping her legs apart.

[Tanya] … in her statement said this incident occurred in 1990, she was born in July [1977], so was aged 12 or 13, … that her father was drunk, that her mother had left the house after an argument with the accused, that the accused kept drinking then ordered [Erica] to her room and shut the door behind them, that [Erica] screamed for him to stop, that [Sandra] left the house to ring police from the neighbour’s, that on arrival police were told to move quietly so the accused would be caught in the act, that police opened the door after knocking, that her father was naked and urinating on the floor at the end of the bed, that [Erica] was naked from the waist up and pulling on overalls. She also noticed the [Erica] had a red mark on left side of her face, which was puffy, and had a fat lip on the left side of her mouth.
She also heard [Erica] tell police her father had ripped her clothes off, constrained and hit her and penetrated her with his penis. The family were then sent to a shelter and to live without their father, but her parents reunited about three months later and the family moved [interstate].
At committal, [Sandra] said … that the house was in a cul-de-sac, that she told police to come quietly because they wanted the accused caught in the act, that she remembered the incident very clearly, that police realised she could see through the open door and sent her off immediately. She said [Erica’s] legs were tied together as opposed to apart in this statement, that her mother was not present, and eventually agreed that because the family moved about so much that she didn’t know which state this happened in. She also said she could not say this had not happened on more than one occasion.
She said the family were moved to a shelter after the incident but eventually her mother ‘snuck’ the children out of the shelter through a window and reunited with their father in another state. [Tanya] was not questioned in any detail at all about this incident beyond confirming that she had described it in her statement.

At the trial, counsel for the applicant (who also appeared on the appeal) accepted that the proposed ‘[Erica Thrussell] evidence’ was ‘prima facie admissible as tendency evidence; that is, it was admissible in proof of the tendencies identified in the tendency notice. However, he contended that it lacked ‘significant probative value’ on account of: (a) there being ‘important discrepancies’ in the accounts of the two sisters; and (b) there being no corroborative evidence anywhere, despite the fact that both witnesses had said that the police had become involved.

Counsel said that there were other shortcomings in the evidence: the witnesses were children at the time of the incident; and over 20 years had passed since the incident occurred. He also contended that there was a very real danger of unfair prejudice in that he was unable to question Erica herself about the incident: ‘the defence [is] in a very difficult position because the one person who could actually give evidence about what happens inside the room cannot be questioned’.

The Crown said that the issue was not whether the evidence was prejudicial, but whether it was unfairly prejudicial. The striking aspect of the evidence was not so much the father having a sexual involvement with his children; what was striking was the violent character of that involvement. That was characteristic of the incident involving Erica and of the conduct the subject of the various charges. Moreover, he said, although Erica herself could not be cross-examined, the applicant could cross-examine Sandra and Tanya.

On 5 September 2016, the trial judge delivered her ruling in which she permitted the Crown to rely upon the evidence of the uncharged offending, as well as the charged offending (except for charge 9 of an indecent act with a child under 16), as tendency evidence.

The trial judge noted that the defence objected to the admission of the evidence with respect to the Erica incident on the basis that: (a) it ‘does not necessarily reveal sexual offending’; (b) ‘the statements and committal transcript of [Sandra] and Tanya contain serious inconsistencies as to this incident, such that they could be describing different events’; and (c) the defence had no opportunity to cross-examine Erica, the Crown having elected not to call her as a witness.

Having summarised each of the parties’ submissions on whether this evidence should be admitted, the trial judge concluded:

The prosecutor informed the court [Erica] did not want to or feel able to give evidence as she had moved on with her life and put her past behind her. Recent attempts to contact her by telephone messages left and a visit to her home – she was not home at the time – had been unavailing. He conceded the last attempt had been in June this year. A decision had been taken not to press her. The prosecutor agreed the provisions of [s 65] of the [Uniform Evidence Act] as to unavailability could not be satisfied, so the evidence of [Tanya] as to what [Erica] said to police could not be led.
He submitted, however, that there were significant similar features in the alleged assault on [Erica] to those alleged by [Sandra] and [Vivian], and that given the state of undress they were seen in, a jury could readily infer the accused man had sexually assaulted her. Defence counsel submitted there was unfair prejudice to his client because there was no opportunity to cross-examine [Erica] herself, given the prosecution had decided not to compel her to give such evidence, which it could have done.
Further, the differences between the accounts of the two witnesses were such that it could not be ascertained they were as to the same incident and a jury could indeed conclude that they were two separate incidents, resulting in further unfair prejudice to his client. Finally, he submitted that the evidence of the incident could not allow a jury to conclude that a sexual assault had occurred. In my view, this evidence should be admitted. The salient features described by each complainant the children at home, the mother out, the accused drinking, the accused ordering [Erica] to her room, [Erica] screaming, [Sandra] going to the neighbours to call police, police being told by the children to be quiet so the accused would be caught in the act, the door being opened to reveal the accused and [Erica] in states of undress, the family being moved to a shelter but the parents reuniting and living then with the children in another state, are such that it could be safely inferred the same incident is being described.
The incident itself, in my view, contains singular traumatic features such that it would remain in the memory of the children who saw it. The statement of [Tanya], the elder child, is far more detailed and contains many details missing from [Sandra’s] version of events and may be seen as a more reliable account. Finally, it is my view it would be entirely open to a jury to conclude that a sexual assault had been inflicted upon [Erica], if not one of sexual penetration, of some nature involving salient features common to the other offending described by [Vivian] and [Sandra].
In reality, the absence of [Erica] as a witness to the event may or may not have been a disadvantage to the defence, although it must always be assumed that the interests of an accused are best protected by evidence in cross-examination of relevant witness and certainly [Erica], as the complainant of this alleged sexual assault, would be a witness of central importance. However, the prosecution are not precluded from seeking to prove this alleged incident via evidence from witnesses at the scene. The defence will certainly be able to highlight the differences between them. As to the possibility of there being two events described, the jury will be instructed the prosecution scenario is that both witnesses are describing the one event.
Finally, as I have said, in my view this alleged incident contains all the hallmarks of the offending alleged against [Vivian] and [Sandra], that is, drunkenness, a lack of any lead-up to the offending, not seeking of consent, conduct directed at overpowering resistance, and the use of violence. Its probative value in my view is such that the requirements of s 97B and s 101(2) are met, and the evidence should be admitted [a]s tendency evidence in this trial.

At the trial, Sandra gave evidence of an incident that she described as ‘quite dramatic’. It was when the family was living in Melbourne, in a cul-de-sac. At the time of the incident, her mother was absent; Sandra, Tanya, her older brother Nathan, Erica and the applicant were present. Sandra heard Erica, who was in her parents’ bedroom, give a ‘horrid scream’. She was calling ‘more or less for help’. The children were terrified. Sandra ‘climbed out the window’ and went to a neighbour’s house. They called the police. Sandra returned to her home and later let the police in. When the bedroom door was opened, she saw Erica with ‘her shirt up around her head, so her top part of her body was exposed and her jeans were tied around her ankles’. She observed that Erica had been beaten. She saw the applicant standing over Erica with his ‘pants down around his ankles’. The police handcuffed the applicant and removed him from the house.

Tanya gave the following evidence about an incident involving Erica. At the time, the family was living in Tasmania, although she could not recall where. She observed that the applicant had become drunk and had ‘belted’ her mother, who left. Later, she could hear Erica, who was in her parents’ bedroom, screaming ‘stop it’ and asking her father to leave her alone. Erica sounded ‘scared, upset and crying’. At first, another of the applicant’s daughters, Cindy, who was a toddler, knocked on the door. The applicant emerged and ‘punched [Cindy] in the face’. The other children looked after Cindy, who had a blood nose, and ‘[Sandra] jumped the fence and went to the end of the cul-de-sac and got them to call the police’. Sandra returned and the police arrived. The police opened the bedroom door, and Tanya could see both Erica and the applicant. Erica’s ‘face was red. She was crying … she was presenting as being scared, upset, hurting’. The applicant was ‘standing there urinating’.

In his written submissions, the applicant contended that the trial judge erred in allowing the evidence of the incident involving Erica to be led at the trial. First, he contended that the evidence did not possess ‘substantial’ probative value in view of: (a) the significant inconsistencies in the accounts given by the sisters; and (b) in particular, the fact that Tanya gave no evidence about what had happened in the bedroom that would suggest anything beyond physical violence. Secondly, he contended that the admission of the evidence was unfairly prejudicial insofar as Erica had not been called as a witness at the trial.

During oral argument, counsel for the applicant contended that the evidence did not have significant probative value of the tendencies alleged in the tendency notice, viz, that the applicant had a tendency to engage in penile intercourse with his biological daughters in circumstances where he was intoxicated and where he would behave violently towards them. The applicant contended that the evidence of Tanya was of an interaction that was nasty and violent, but not of a sexual nature. While an inference of sexual conduct could be drawn from the evidence of Sandra, that evidence was not corroborated by the evidence of Tanya.

Further, the applicant contended that, while the evidence may have had significant probative value in relation to some of the charges, it did not have such value in respect of the first charge. In the case of that charge, there was no allegation that the applicant was intoxicated or was engaging in gratuitous violence. We deal with this contention below.

The Crown contended that the evidence of the Erica incident had significant probative value, which substantially outweighed any prejudicial effect that it may have had on the applicant. The trial judge’s ruling was properly made, notwithstanding the absence of Erica at the trial and the inability of defence to cross-examine her.

The Crown also contended that the acquittals on charges 2–9 demonstrated that the tendency evidence did not ‘swamp’ the jury or cause them to engage in impermissible tendency reasoning. The Crown said that, even if the first proposed ground was made out, the admission of the tendency evidence did not result in a substantial miscarriage of justice.

During oral argument, the Crown said that the touchstone of the tendency notice had been the similarity between the uncharged acts and the acts forming the basis of the charges. It referred to Velkoski v The Queen[20] and Rapson v The Queen.[21] After Hughes v The Queen,[22] the more specifically the tendency is expressed, the more likely it was to have significant probative value. In the present case, the trial judge dealt with a quite specific tendency: the tendency sexually to assault his biological daughters when he had been drinking or was drunk, in circumstances where they were isolated and he used violence to overpower them.[23]
[20](2014) 45 VR 680 (‘Velkoski’).
[21](2014) 45 VR 103.
[22](2017) 344 ALR 187 (‘Hughes').
[23]The trial judge made it clear in her directions that the tendency notice did not apply to charge 9.

Further, the Crown contended that the admissibility of the tendency evidence must be assessed on the basis of admissibility ruled on at the trial. It was unrealistic to contend that it should be re-assessed on the basis that the applicant was only convicted on charge 1. The Crown said that the conduct said to evidence the tendency did not have to be identical to the conduct that formed the basis of the charges. It was true that there was no suggestion that, during the incident at the halfway house, alcohol was involved. But the evidence was that, when the applicant had isolated Sandra, he had used violence to force her into sexual activity. The tendency identified in the tendency notice had significant probative value in respect of the conduct particularised in charge 1. There was no unfair prejudice. The fact that Erica was not called was fully exposed before the jury. Further, counsel for the applicant had expressly rejected that a ‘Jones v Dunkel warning’ should have been given pursuant to s 43 of the Jury Directions Act 2015.

Analysis

The admissibility of tendency evidence is governed by ss 97(1) and 101(2) of the Act. Relevantly, that section provides:

97.The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
...
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

The probative value of evidence is defined in the Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[24] Evidently, the threshold of ‘significant’ probative value is higher than the threshold of mere ‘probative value’.[25] The high threshold of admissibility for tendency evidence is further emphasised by s 101(2) of the Act, which provides that, in a criminal case, tendency evidence adduced by the prosecution cannot be used against an accused person unless its ‘probative value substantially outweighs any prejudicial effect it may have’.[26]
[24]‘The facts in issue in a criminal proceeding are those which establish the elements of the offence’: Hughes v The Queen (2017) 344 ALR 187, 193 [16].
[25]Semaan v The Queen (2013) 39 VR 503, 510–11 [36]–[38] (Priest JA). Cf JLS v The Queen (2010) 28 VR 328, 333 [18] (Redlich JA).
[26]See Bauer (a pseudonym) v The Queen [No 2] [2017] VSCA 176 [49] (Priest, Kyrou and Kaye JJA).

In IMM v The Queen,[27] the High Court held that, in assessing the probative value of tendency evidence, a trial judge should proceed upon the assumption that the jury would accept the evidence. French CJ, Kiefel, Bell and Keane JJ said:

The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words ‘if it were accepted’, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.[28]

[27](2016) 257 CLR 300 (‘IMM’).

[28]Ibid 312 [39].

In deciding whether the tendency evidence had significant probative value, the trial judge applied the decision of this Court in Velkoski. She decided that there was a ‘sufficient similarity or commonality of features’ between the conduct involving Erica and the facts in issue in the charged conduct. In Hughes, the High Court rejected the test set out in Velkoski for determining whether tendency evidence had significant probative value as too restrictive.[29] Kiefel CJ, Bell, Keane and Edelman JJ said:

Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[30]

[29]Hughes (2017) 344 ALR 187, 200 [42].

[30]Ibid 199 [39]–[41] (citation omitted).

As noted earlier,[31] the tendency notice stated that the evidence was to be adduced to prove tendencies identified as beginning ‘to touch his two biological daughters in a sexual manner when they were about 3 years of age’; continuing ‘to touch his two biological daughters sexually as they grew older’; and placing ‘his penis and/or finger into the vagina of his daughters aged between 7 and 14’, all in circumstances where the applicant ‘was often intoxicated’ and ‘would isolate them from other family members’, and some in circumstances where he would ‘physically assault and restrain them’.
[31]See [12] above.

As stated in IMM, the admissibility of tendency evidence involves a consideration of ‘two interrelated but separate matters’. In our opinion:

(d) the evidence of Sandra and Tanya in relation to the incident involving Erica strongly supported the alleged tendency of the applicant to touch his biological daughters sexually as they grew older and to engage in sexual conduct, which often took place in circumstances where he was intoxicated and involved the physical assault and restraint of his children; and

(e) the existence of that tendency strongly supported the proof of the facts in issue on each of the charges.

Although neither Sandra nor Tanya gave evidence that she saw the applicant penetrate Erica, the descriptions that they gave strongly supported the inference either that penetration had taken place or that the applicant had been interrupted as he was about to penetrate Erica. Each sister heard Erica screaming in protest. Each said that she saw Erica in a state of undress. Sandra said that she saw the applicant ‘who was not wearing any pants … standing at the end of the bed’; Tanya gave evidence that she saw ‘the accused naked, standing urinating on the bedroom floor’. In our opinion, the evidence was highly probative of a tendency on the part of the applicant sexually to assault his daughters and to do so by penetrating them.

In turn, proof of that tendency was highly probative of the facts in issue on each of the charges. We reject the submission advanced by counsel for the applicant that, because of the acquittals on all charges other than charge 1, this Court must decide the question of admissibility as if the applicant had been facing only one charge of incest. On orthodox principles, the question for consideration is whether the tendency evidence was admissible in this trial to prove the facts in issue between the prosecution and the defence. The trial judge’s ruling was that all of the proposed tendency evidence was admissible in proof of all the charges. At no stage was she asked to revisit that ruling.

Although the applicant now challenges that ruling with respect to only one component of the tendency evidence, the question remains whether that evidence was properly admitted in proof of all of the charges. For the reasons that we have already given, it plainly was. The tendency which the evidence of the Erica incident illustrated was probative of the conduct alleged in each charge, including charge 1.

The applicant relied upon the defence of fabrication: Vivian and Sandra, he said, were liars. As indicated above, in Hughes the majority said that, in the trial of child sexual offences, it is common for the complainant’s account ‘to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted’.[32] Accordingly, evidence showing that the applicant had a tendency to engage in sexual conduct with his natural daughters had significant probative value when it was being contended that the evidence of the complainant daughters had been fabricated.
[32]Ibid 199 [40].

As indicated above, the applicant said that the tendency evidence should not have been admitted because its probative value did not substantially outweigh the danger of unfair prejudice.[33] The ‘primary matter’ relied upon was the fact that, because Erica had not been called to give evidence, she could not herself be cross- examined about the incident.
[33]Section 101 of the Act only applies in a criminal proceeding. Section 101(2) provides:
Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Section 101 is confined to tendency evidence and coincidence evidence. Section 137 is of more general application. It provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

In Hughes, the majority said:

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.[34]

[34]Hughes (2018) 344 ALR 187, 193–4 [17] (Kiefel CJ, Bell, Keane and Edelman JJ).

In relation to the contention that there was unfair prejudice, the trial judge ruled:

The incident itself, in my view, contains singular traumatic features such that it would remain in the memory of the children who saw it. The statement of [Tanya], the elder child, is far more detailed and contains many details missing from [Sandra’s] version of events and may be seen as a more reliable account. Finally, it is my view it would be entirely open to a jury to conclude that a sexual assault had been inflicted upon [Erica], if not one of sexual penetration, of some nature involving salient features common to the other offending described by [Vivian] and [Sandra].
In reality, the absence of [Erica] as a witness to the event may or may not have been a disadvantage to the defence, although it must always be assumed that the interests of an accused are best protected by evidence in cross-examination of relevant witness and certainly [Erica], as the complainant of this alleged sexual assault, would be a witness of central importance. However, the prosecution are not precluded from seeking to prove this alleged incident via evidence from witnesses at the scene. The defence will certainly be able to highlight the differences between them. As to the possibility of there being two events described, the jury will be instructed the prosecution scenario is that both witnesses are describing the one event.
Finally, as I have said, in my view this alleged incident contains all the hallmarks of the offending alleged against [Vivian] and [Sandra], that is, drunkenness, a lack of any lead-up to the offending, not seeking of consent, conduct directed at overpowering resistance, and the use of violence. Its probative value in my view is such that the requirements of s 97B and s 101(2) are met, and the evidence should be admitted s tendency evidence in this trial.

We have already expressed our opinion that the evidence of Sandra and of Tanya relating to the Erica incident had significant probative value. We also agree with the trial judge that the introduction of that evidence was not unfairly prejudicial to the applicant. The only particular of unfair prejudice relied upon by him was that he was unable to cross-examine Erica. But he was able to cross-examine two witnesses to the very events in question. Moreover, there is no complaint about any direction given by the trial judge as to what use might be made of that evidence.[35]
[35]In her charge, the trial judge said:
Again, the prosecution obviously, given what I have told you about tendency evidence and the submissions by the prosecution on that point, points to the fact that [Vivian] first made a statement in 2006. [Tanya] first made her statement which involves the alleged incident in relation to [Erica] – and in determining that, you need to take into account too, of course, that [Erica] is not – it is one of the forensic disadvantages that [Erica] is not present to give evidence in relation to that incident. It is simply something that you take into account.

We would therefore reject the first proposed ground of appeal.

Proposed ground 2: whether verdict unreasonable and unsupported by evidence

The second proposed ground of appeal contends that the verdict on charge 1 is unreasonable, and cannot be supported, having regard to the evidence. It draws attention to the ‘cumulative effect’ of certain matters, namely that:

(a)the jury were not satisfied beyond reasonable doubt of the guilt of the Applicant in respect of each of the other charges on the indictment, in particular, each of the other charges where [Sandra] was the complainant;
(b)in respect of every charge on the indictment, including charge 1, there was a total absence of supporting evidence;
(c)the accused denied that he had engaged in the conduct alleged to amount to charge 1;

(d) the accused denied every other allegation made by the complainants;
(e)there was compelling evidence that [Sandra] had lied in her evidence regarding the use of the [Betty Strickland] Facebook account;
(f)there was evidence that [Sandra] had a motive to lie about the offences she alleged against the accused;
(g) the Facebook evidence of the communications between Betty Strickland and the Applicant supported the credibility and reliability of the accused’s ROI (including the denials therein) and should have significantly adversely effected [sic] the Jury’s assessment of the credibility of [Sandra];
(h)the jury had reservations as to the reliability and potentially the credibility of [Sandra’s] evidence as is evidenced by their verdicts on charges 2–5; and
(i)there was no reasonable basis to return the verdict that the jury did on charge 1.

In her evidence in chief, Sandra gave the following evidence which formed the basis of the first charge. She said that, at the time, she was living alone with the applicant at the halfway house. There were two beds, a double bed in one and a bunk bed ‘in the corner’. At the time, she was using the bottom bunk. The applicant had sexual intercourse with her; he inserted his penis into her vagina. The transcript of her evidence contained the following:

Counsel:How did that end, how did that incident stop and what occurred at the end of that incident?
Witness:When it finished he stopped and there was blood everywhere, so basically this big puddle of blood in the bedding and stuff like that. It sticks in the mind most because I recall the cleaner come, took the sheets and stuff the next day, nothing was said, nothing was done.
Counsel:You have told us that you stayed there for – again I think I missed actually what you said, how long had you been staying there on that occasion for?
Witness:Possibly a week or more. I couldn’t honestly say.
Counsel:Had anything else like that occurred during that time?
Witness:Yes, but not that sticks out as much as that one.
Counsel:Again I need to go into detail. When you say something like that occurred, what sort of activity – I know you don’t know the detail or it doesn’t stick out as much, but what happened?
Witness:I suppose every few days or every day or so he’d, yeah, repeat the procedure.

Sandra said that she was ‘between eight and 10 and 13’ at the time.

The attack upon Sandra Thrussell’s credit: the Facebook evidence

As indicated above, the evidence given by Sandra in cross-examination about some Facebook messages that took place between January and February 2014 was used to discredit her.

The context of the evidence was not made entirely clear during her cross- examination as, at first, Sandra refused to answer questions about her children and, when she agreed to do so, she rejected many of the propositions that were being put to her. The following account is gleaned from the transcript of her cross-examination and, in particular, her re-examination, when a clearer picture emerged. To an extent, the version of events is supplemented by the evidence of her brother, Nathan.

Briefly, in January 2014, Sandra and some of her children were involved in a car accident in New South Wales. Sandra was unable to be discharged from hospital, and the father of the children could not be located. As a result, three of the children were placed into foster care. Both before and after the date of the accident, the applicant received a series of messages from a Facebook account named ‘Betty Strickland’. The messages contain statements that ‘Betty Strickland’ is unable to care properly for her children; they include requests for assistance. The messages speak of the involvement of officers of a department in New South Wales. Eventually, the messages become threatening towards the applicant. Sandra denied that she was the operator of that account. But other witnesses said that she was, and the content of the messages corroborated their evidence.

Sandra is the mother of six children. The father of each child is a man named Leroy Cole. Leroy had used marijuana before the birth of Sandra’s fourth child. During this time, Sandra and Leroy had relationship problems, which were eventually resolved. Subsequently, in January 2014, Sandra and some of her children were involved in the car accident. Sandra had to remain in hospital in intensive care after her children were discharged. During her time in hospital, the ‘Department of Community Services’[36] (‘the Department’) commenced proceedings in the Family Court of Australia seeking custody of Sandra’s children. For Sandra, the care of her children became a paramount consideration. Efforts to contact their father were unsuccessful. At first, the children were placed in emergency care in New South Wales. According to Sandra, the Department had arranged to have her children placed in the care of her parents ‘behind my back, without my knowledge’. It appears that Sandra had prevented their being placed in the care of her parents: ‘after the stink I kicked up about them trying to hand them to my parents, to which led the Family Department in the first place checking into my parents’ actual records’. After the short placement in New South Wales, Sandra’s children were placed in the care of her brother, Nathan Thrussell. They remained with him for approximately 12 months. During this time, Sandra and Leroy were allowed to visit their children only while supervised. Sandra gave evidence that ‘my children made a complaint to the contact supervisor about the big secret of what he was doing’. The ‘big secret’ was that the children had disclosed that, while they were in the care of her brother, the applicant had had contact with them despite an arrangement with the Department that the applicant was not to have contact with Sandra’s children ‘unless agreement had been reached on that topic’. Some time in 2015, the Department withdrew the custody proceedings.
[36]At various times, Sandra referred to the relevant organisation as the ‘Department of Child Services’.

Many of the details of this period in Sandra’s life were corroborated by the evidence of her brother, Nathan, who was called as a defence witness. He was told that Sandra had had an accident and that she and her children were in hospital. He gave evidence that he was contacted on about 17 April 2014 by Kim Gross of the Department. He was told that the children had been in a care placement in New South Wales after Sandra’s accident. He was asked if he and his wife would be prepared to foster the three youngest of Sandra’s children. He gave evidence that the fostering lasted for about 12 months. He said that, under the terms of the court order placing the children in his care, Sandra and her partner were permitted to make supervised visits to see their children. At one point late in 2014, the applicant and his wife visited the children when they were staying with Nathan. After the visit by the applicant, Sandra made a complaint to the police who attended at Nathan’s house. Nathan then learnt that there was a condition on the court order that placed restrictions on the applicant’s ability to visit Sandra’s children.

At the trial, the applicant had used the Facebook messages from ‘Betty Strickland’ to suggest that Sandra had a motive to lie about the offences that she had alleged against the applicant. As summarised above, Sandra had given evidence that she was not responsible for the messages from ‘Betty Strickland’ to the applicant. Her denial of authorship was used to attack her credit. The applicant, however, said that Sandra blamed him (and her brother, Nathan) for her losing her children for about 12 months.

At the hearing of the present application, her denial of authorship was used in support of the contention that the conviction was unsafe: it was contended that Sandra had perjured herself before the jury. For its part, the Crown accepted that the evidence that Sandra had given about ‘Betty Strickland’ was false. However, the Crown said that there was an explanation for her having given that false evidence which did not impeach her evidence about the Erica incident or the incident at the halfway house.

The evidence of Sandra Thrussell relating to the ‘Betty Strickland’ account

Sandra gave evidence that the last contact that she had had with the applicant was ‘three years ago’. In her evidence, Sandra, first, accused the applicant of trying to take her children away. Secondly, she said that she had to prevent the child welfare authorities in New South Wales from placing her children with the applicant because he was a ‘paedophile’. Thirdly, she denied ever having a Facebook account including a Facebook profile styled ‘Betty Strickland’.[37] Fourthly, she introduced the theme that somebody else is in control of the ‘Betty Strickland’ profile and has pretended to be her.
[37]Tanya gave evidence that the Facebook profile ‘Betty Strickland’ was used by Sandra. Nathan gave evidence that Sandra said that Sandra used the Facebook profile ‘Betty Strickland’.

The cross-examination of Sandra was adjourned in the afternoon of the ninth day of the trial. It was resumed before the jury at midday on the 10^th day of the trial. At first, Sandra was asked questions about her children. She refused to answer them.

At this point, the cross-examination in the presence of the jury was adjourned and the trial was disrupted. During the adjournment, a voir dire discussion took place between the trial judge and counsel concerning the refusal of Sandra to give evidence about her children. In the event, arrangements were made for her to take advice from an independent barrister. After the luncheon adjournment on the 10^th day of the hearing, the cross-examination in the presence of the jury resumed.

From this point, Sandra gave evidence about a number of events which took place before and during the period of time when the ‘Betty Strickland’ messages were sent. The cross-examination concerned the events in January to February 2014. Sandra was asked about a series of Facebook messages between a person called ‘Betty Strickland’ and the applicant. Many of the messages were read to her. She denied being the author of any of them. Eventually, Sandra was provided with a document containing extracts from the messages sent from the ‘Betty Strickland’ account and was given an opportunity to read through them. When cross-examination resumed, she again denied her authorship of the messages under the name ‘Betty Strickland’.

On the 12^th day of trial, the defence tendered a document entitled ‘statement of agreed facts’. That document contained a table which comprised 18 pages of downloaded Facebook messages sent between an account named ‘Betty Strickland’ and the applicant.[38]
[38]The exhibit at the trial was identified as a ‘statement of agreed facts and Facebook messages from [Betty Strickland] Account’. The agreed facts were in the following form:
1. Pursuant to s 191 of the Evidence Act 2008 the parties agree that: a. …; and b. that the attached table accurately transcribes a number of messages that were sent on Facebook between the accounts of [Betty Strickland] & [the applicant] and that the dates and times on the table accurately detail the dates and times that the messages were sent.

It is unnecessary to extract each of the messages. Their content is highly elliptical (in the manner of social media) but their substance seems to be as follows. In the messages ‘Betty Strickland’ speaks to the applicant on the basis that they are father and daughter. ‘Betty Strickland’ refers to several of her children by name; their surname corresponds to that of Sandra’s partner whom she identified as the father of all of her children. On Sunday, 26 January 2014, ‘Betty Strickland’ complains that ‘Anne found out she got doc’s [sic] onto me’ (the reference appears to be to the New South Wales Department of Children Services). The messages from ‘Betty Strickland’ reflected that she was having difficulty controlling her children and feared that they would be taken from her. On Monday, 27 January 2014, the applicant tells ‘Betty Strickland’ that he and Sandra’s mother will ‘come up tomorrow’. Directions are given as to where ‘Betty Strickland’ lives.

By 11 February 2014, the messages from ‘Betty Strickland’ had become abusive and threatening. Further messages sent by ‘Betty Strickland’ on Tuesday, 11 February 2014 read as follows:

[Betty Strickland]
You made comment that helped them make their mind up, mostly it was dog Anne telling shot [sic] loads of lies, my lawyer said if get the house here in town I can have kids back other than that they have no case. So it would be nice if you would do some thing [sic] to help for a change, need this ducking [sic] house.
[Betty Strickland]
Hey you told lots of lie’s [sic] now you can fucking help get them back or I’ll take you’s [sic] down you know what I know so don’t fuck with me.!!!!
[Betty Strickland]
Pay for your lies by giving me the money for the shot I need to do to get my kids back.

The messages from ‘Betty Strickland’ continued until Friday 14 February 2014. The last message comprises nothing but a series of question marks.

The evidence given by Sandra about ‘Betty Strickland’ was used to impeach her credit. It was also used to suggest that she had a motive to lie about the applicant.

In his address to the jury, counsel for the applicant discussed Sandra’s account and challenged her credibility as follows:

Let’s move to assess [Sandra’s] account next. [Sandra], in my submission to you, has an obvious motive to lie and I’ll come to that. But, perhaps more profoundly, she has lied to you. In her evidence he has lied to you about that Facebook account. You have got the messages on it. The only logical conclusion is that that’s [Sandra’s] Facebook account.

Having taken the jury to the Facebook entries, counsel referred to Sandra’s motive to lie. He said that she blamed her father for losing the children for about 12 months. She was bitter about it and blamed the applicant and her brother.

Was the verdict unsafe?

Section 276(1)(a) of the Criminal Procedure Act 2009 requires this Court to allow an appeal against conviction if an appellant satisfies the Court that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

In R v Baden-Clay,[39] the High Court emphasised the fundamental nature of the role of the jury in our system of criminal justice as ‘the constitutional tribunal for deciding issues of fact’ in relation to allegations of serious crimes.[40] It continued:[41]

Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect,[42] the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial[43] …
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court 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’.[44]

[39](2016) 258 CLR 308.

[40]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ), citing Hocking v Bell (1945) 71 CLR 430, 440 (Latham CJ). See also Brennan v The King (1936) 55 CLR 253, 266 (Dixon and Evatt JJ); Sparre v The King (1942) 66 CLR 149, 154 (Starke J); Keeley v Mr Justice Brooking (1979) 143 CLR 162, 188 (Murphy J); Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 601 (Brennan J); MacKenzie v The Queen (1996) 190 CLR 348, 365 (Gaudron, Gummow and Kirby JJ); MFA v The Queen (2002) 213 CLR 606, 621 [48] (McHugh, Gummow and Kirby JJ).

[41]R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66].

[42]Kingswell v The Queen (1985) 159 CLR 264, 301 (Deane J); Brown v The Queen (1986) 160 CLR 171, 201 (Deane J); Katsuno v The Queen (1999) 199 CLR 40, 63–4 [49] (Gaudron, Gummow and Callinan JJ); Cheng v The Queen (2000) 203 CLR 248, 277–8 [80] (Gaudron J); Alqudsi v The Queen (2016) 258 CLR 203, 208 [2], 213 [16] (French CJ), 273–4 [195] (Nettle and Gordon JJ).

[43]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); MFA v The Queen (2002) 213 CLR 606, 621–2 [49]–[51], 623 [56] (McHugh, Gummow and Kirby JJ).

[44]M v The Queen (1994) 181 CLR 487, 494–5. See also R v Hillier (2007) 228 CLR 618, 630–1 [20] (Gummow, Hayne and Crennan JJ) and the authorities there cited.

To succeed on this proposed ground, the applicant must establish that the jury was bound to acquit the applicant.[45] In Libke v The Queen,[46] Hayne J (with whom Gleeson CJ and Heydon J agreed) said that the relevant question was ‘whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[47]
[45]Ashley v The Queen [2016] VSCA 245 [56] (Redlich, Weinberg and Hansen JJA).
[46](2007) 230 CLR 559.
[47]Ibid 596–7 [113] (emphases in original). See also R v Klamo (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ).

In Klamo v The Queen,[48] Maxwell P summarised the principles governing appellate review of convictions that were said to be unsafe or unsatisfactory. He said:
[48](2008) 18 VR 644.

The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.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.

A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion.[49]

[49]Ibid 653–4 [38]–[39] (citations omitted).

In Inia v The Queen,[50] this Court said:

The unsafe or unsatisfactory ground requires this Court to give detailed consideration to the evidence led at trial, and to form its own view as to whether it was properly open to the jury to convict. In effect, this Court must ask itself whether, on the basis of that evidence, it entertains a doubt as to the applicant’s guilt. If it does, in most cases, it will quash the conviction. If not, this ground will fail.[51]

[50][2017] VSCA 49 (‘Inia’).

[51]Ibid [53] (Redlich, Weinberg and McLeish JJA).

The applicant identified the following features of the evidence which, he said, made the verdict on charge 1 unsafe. First, the applicant addressed the matters to which the trial judge had referred in her report to the Court of Appeal.[52] The purpose of that report was to suggest that there was material that corroborated Sandra’s evidence about the incident at the halfway house. The applicant said that the evidence of Nathan did not support the evidence of Sandra that she had stayed by herself at the halfway house. Secondly, the applicant said that Nathan’s evidence did not support Sandra’s evidence with respect to there being laundry facilities at the halfway house. Neither of these matters gave meaningful support to her evidence.[53] However, the applicant said that it was Sandra’s evidence about her ‘Betty Strickland’ Facebook account that should have raised a doubt about her credibility. He said that it was clear on the face of the evidence that she had lied to the jury about her use of the Facebook account. The falsity of her evidence was revealed not only by the plain contents of those messages, but also by the evidence of Nathan and Tanya that she used that account.
[52]See [95] below.
[53]It should be added that neither did Nathan’s evidence contradict that of Sandra in relation to her being at the halfway house alone with the applicant.

In our opinion, it was open to the jury to be satisfied of the guilt of the applicant on charge 1. We are not satisfied that the jury must have entertained a doubt about his guilt.

The evidence given by Sandra with respect to charge 1 is set out above. As the extract from the transcript reveals, Sandra had a particular reason for recalling the incident that took place when she was about 13:

When it finished he stopped and there was blood everywhere, so basically this big puddle of blood in the bedding and stuff like that. It sticks in the mind most because I recall the cleaner come, took the sheets and stuff the next day, nothing was said, nothing was done.

Later, she explained that the bleeding occurred as a result of the penetration of her vagina.

As indicated above, the Crown conceded that Sandra’s evidence with respect to the ‘Betty Strickland’ Facebook account was false. However, the Crown contended that, understood in its proper context, the willingness of Sandra to lie on this subject did not have the consequence that the jury must have had a reasonable doubt about the incident at the halfway house.

In our opinion, the jury were entitled to proceed upon the assumption that the Facebook account was false. First, they would have observed that her denial of authorship was implausible. Secondly, the jury were in a position to discount her evidence that the ‘Betty Strickland’ messages had been sent by someone else (in particular Tanya) to discredit her. Thirdly, in final address on behalf of the applicant, counsel attacked the credit of Sandra by reference to the falsity of her evidence with respect to the Facebook account. Fourthly, when they retired to consider their verdict, the jury took with them an exhibit which extracted all of the Facebook messages. It seems obvious that they were written by Sandra.

The jury observed Sandra give her evidence of the circumstances in which the Facebook messages were sent. It would have been plain that those circumstances were particularly traumatic for her. Before the car accident, child welfare authorities had become concerned about the welfare of Sandra’s children (it appears that she blamed her sister, Tanya, for reporting her to the authorities). After the accident, the children had been placed in care. The question was whether she could recover care of them. The Facebook messages, which were sent at different times both before and after the car accident, confess to an utter inability on the part of Sandra to cope and look after her children. That confession could be (and possibly was) used against her by the child welfare authorities to seek a court order that the children be removed from her care. Accordingly, she denied that she had made any such confession and sought to blame other members of her family as imposters who were responsible for sending the Facebook messages. By the time that she gave evidence at the trial, the crisis had passed. But her maintenance of the position that she had not been responsible for these messages was explicable on the basis that she feared that there remained a risk that the content of those messages could be used to have her children taken from her.

Moreover, by the time that the jury had retired to consider their verdict, they had received a good deal of evidence about the context in which the Facebook messages were sent. After it had become plain that her children were to be placed in care, Sandra had insisted that they not be placed in the care of her parents. She gave evidence that she had ‘kicked up a stink’ that her children not be placed with ‘that paedophile’. In fact, Nathan gave evidence that he learnt that the court order placing the children in his care had provided that the applicant was not permitted to visit the children unless otherwise agreed. Finally, the jury was told of what happened when Sandra’s children told her of the ‘dirty secret’ — namely, that the applicant had visited them when they were in Nathan’s care. The evidence was that the police turned up at Nathan’s place to check on the welfare of the children.

At the trial, it was contended that the Facebook messages disclosed Sandra’s motive to lie about her father: she wanted revenge for his failure to help her in her moment of need. We make two observations about this. First, the jury had the text of the Facebook messages with them. Some of those messages may well have been thought to reflect that, in the past, the applicant had behaved shamefully towards Sandra: ‘Hey you told lots of lie’s [sic] now you can fucking help get them back or I’ll take you’s [sic] down you know what I know so don’t fuck with me.!!!!’ Secondly, Sandra did not herself approach the police with a complaint about her father’s conduct. Rather, they approached her in early 2015 and she did not make a statement until 18 February 2015. Her passivity in this regard tends against the conclusion that she had sought to exact revenge on her father.

In our opinion, the question whether Sandra’s false evidence with respect to the ‘Betty Strickland’ Facebook messages should have created a reasonable doubt about her evidence as to what had occurred at the halfway house was a quintessential jury question. It was a matter for the jury to decide on the basis of their collective experiences and common sense. In Doney v The Queen,[54] Deane, Dawson, Toohey, Gaudron and McHugh JJ described ‘the purpose and the genius of the jury system’ in criminal trials:

[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[55]

[54](1990) 171 CLR 207.

[55]Ibid 214.

Lord Devlin, writing extra-judicially, was firmly of the view that the jury was the most appropriate tribunal to determine issues of credibility:

[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers’ ways of thought; that is the great advantage to a man of judgment by his peers.[56]

[56]Patrick Devlin, Trial by Jury (Stevens & Sons, rev ed, 1966) 140. See also AK v Western Australia (2008) 232 CLR 438, 470–4 [90]–[98] (Heydon J).

As was observed during argument, it is notorious that custody battles ‘are about the most painful personal experience a parent can go through’. In the present case, the jury would have observed Sandra’s initial refusal to answer questions about her children. The jury would have experienced the disruption to the trial that ensued. By the time that they retired to consider their verdict, the jury had heard of the difficulties which she had experienced with the care and custody of her children. As we have explained, there was an obvious explanation for Sandra’s denial of authorship of the ‘Betty Strickland’ Facebook messages. It was not as if the falsity of the evidence that Sandra was giving was disguised from the jury. It was all played out in front of them.

We would therefore reject the second proposed ground of appeal.

Proposed ground 3: inconsistent verdicts

After the commencement of the present application for leave, the trial judge made a report to this Court.[57] Her report is dated 13 September 2017. In her report the trial judge said:
[57]See Criminal Procedure Act 2009 s 316.

It has never been my practice to comment upon appeals from trials over which I have presided. Indeed in this case I had originally declined to make such comment.

[79]Ibid [21]–[28].

In relation to Sandra’s age at the time of the offending, the trial judge said that she would sentence the applicant on the basis that Sandra could well have been aged 13. At the trial, Sandra gave evidence that she was possibly aged 13 at the time. The trial judge noted that Sandra was a very young adolescent, but not necessarily prepubescent.[80]
[80]Ibid [29].

The trial judge also accepted that the applicant could only be sentenced on the basis that he may well have been drinking at the time of the offending, but he was not drunk; the trial judge said that there was little mitigation inherent in that proposition.[81]
[81]Ibid [30].

The trial judge saw as irrelevant the issue whether the applicant wore a condom at the time of the offending. Acknowledging that there was a dearth of evidence on this point, she said that the mode of the offending made it most unlikely that a condom was used, but, at the same time, she did not believe that she could find that that aggravating feature had been proved beyond reasonable doubt; nor could she be satisfied on the balance of probabilities that a condom was used.[82]
[82]Ibid [31].

The trial judge turned her attention to matters including ‘current sentencing practices, the nature and gravity of the offence, the offender's culpability and responsibility for offending, the impact on the victim, whether a plea of guilty was entered and any aggravating features’.[83] She added: ‘The question of current sentence practices is most important’.[84] She discussed the decision of this Court (subsequently overturned by the High Court on appeal) in Director of Public Prosecutions v Dalgliesh (a pseudonym)[85] in the following terms:
[83]Ibid [33].
[84]Ibid.
[85][2016] VSCA 148 (‘Dalgliesh’).

[T]he Court of Criminal Appeal [sic] discussed generally sentencing practices for the crime of incest, concluding at paragraph 31 that
sentencing courts must by increments increase the sentences for mid-range incest offences so that the range of sentences is uplifted and substantially expanded. The maximum penalty provides sentencing courts with ample latitude to fix sentences which properly reflect the degree of criminality involved.

Those sentences the court said had been ‘inappropriately compressed’ by sentences for worse category offending (see paragraph 130). The court’s review of sentencing for incest found that most sentences for incest with a dependent child under 18 were around three years' and four years' imprisonment.
At paragraph 128, the court stated,
The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offenders of mid-range seriousness must be adjusted upwards.

Incest was described by Their Honours most correctly, in my opinion, as an inherent crime of violence, always involving physical subordination even where there were no overt features of physical abuse, with long-term harm to the victims, (see paragraph 85).
At paragraph 64, the court stated, ‘current sentencing does not reflect the objective gravity of such offending or the moral culpability of the offender.’[86]

[86]Sentencing remarks [34]–[38].

The trial judge determined that the applicant’s offending could be classified as mid-range and as falling ‘at the upper hand of that range’. She continued:

Your treatment of your daughter amounted to a brutal sexual assault involving patent violence. You simply grabbed her, tore off her clothes, held her down while she struggled and penetrated her so violently that you injured her vagina and she bled copiously.
You treated her as an object of immediate sexual gratification. She was a young girl just coming into adolescence and you were the sole parent having care of her at the time. The context of this offending was against a background of similar regular offending while you stayed with her at [the halfway house] for a week, possibly longer. This was a breach of trust of a particularly gross kind and I regard your moral culpability as high. You have shown no response, denying the offending and subjecting your daughter in the process to cross-examination at both committal and trial.[87]

[87]Ibid [39]–[40].

The trial judge also noted that no victim impact statements had been made. She said, however, that:

Dalgliesh makes it clear that incest is recognised as having particularly harmful long-term effects on its victims and it would be impossible to imagine that your callous treatment of your daughter on that occasion has not resulted in ongoing psychological damage, although I can make no finding more specific than that.[88]

[88]Ibid [41].

The trial judge said that the applicant’s lack of relevant criminal history was of ‘much lesser mitigatory weight’ because of the nature of the applicant’s offending, ‘as is the issue of delay’.[89] She continued:

Unfortunately, incest is prevalent in our community and so increases the demands on the sentencing court to have particular regard to general deterrence. The lapse of time without further such offending means specific deterrence is of little moment. However, just punishment certainly is. The sentence I impose will have regard to that factor and to express generally community abhorrence at this type of offending.[90]
[89]Ibid [42].
[90]Ibid.

Proposed grounds of appeal against sentence

The proposed grounds of appeal against sentence are as follows:

1.That the learned sentencing Judge erred in finding, beyond reasonable doubt, that the offence occurred in a context of other uncharged sexual offending over approximately one week.
Particulars:
(a)the finding was required to be made to the standard of beyond reasonable doubt; and
(b) the finding was not open to the learned sentencing Judge.

2.That the learned sentencing Judge erred in failing to take into account the principal [sic] of equal justice.
3.That the learned sentencing Judge erred when dealing with the issue of the substantial delay between the commission of the offence and the imposition of sentence.
Particulars:
(a)The learned sentencing Judge failed to afford sufficient mitigatory weight to the delay per se;
(b) The learned sentencing Judge failed to appropriately moderate the application of current sentencing practices in particular the application of the DPP v Dalgliesh;
(c) In effect the Applicant has been punished as a result of the delay referred to above.

4. The sentence imposed is manifestly excessive.

The applicant’s submissions

In his written submissions in support of the first proposed ground, the applicant contended that it was not reasonably open to the trial judge to find that, every few days while staying at the halfway house when the offending the subject of charge 1 occurred, the applicant had sexual intercourse with Sandra.[91] The applicant argued that there was no supporting evidence for any of the charges of incest, including for charge 1.
[91]Ibid [24].

The applicant contended that the evidence of Nathan at the trial should have given rise to a reasonable doubt that the offending occurred in the context of regular sexual intercourse over approximately one week. The applicant pointed, in particular, to the evidence given by Nathan that:

(f) while residing at the halfway house with his father and Sandra, he spent 90 per cent of his time with Sandra;

(g) ‘[m]ost of the time it was either three of us who were together, or [Sandra] and myself were hanging out together. My dad was with his mates’; and

(h) he had no knowledge of the offending against Sandra while at the halfway house.

During oral argument, the applicant contended that the trial judge should have found that charge 1 was an isolated incident which should have been treated as a mitigating factor. The applicant said that the trial judge’s reference to the offending occurring ‘against a background of similar regular offending’[92] at the halfway house suggested that she treated the context of the offending as an aggravating factor.
[92]Ibid [40].

As to the second proposed ground, the applicant contended that the trial judge did not consider principle of ‘equal justice’ and therefore gave no consideration to sentencing practices at the time of the offending. The applicant argued that some guidance with respect to sentencing practices at the time of the offending can be obtained from R v Kaye,[93] which was decided in 1986, and in which Young CJ said that the average sentence for incest ‘is probably somewhere of the order of three years’ imprisonment’.
[93](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Murphy and Fullagar JJ, 30 September 1986).

As to the third proposed ground, the applicant contended that the effect of the delay in the present case, when considered in light of the changed sentencing practices for the offence of incest, has resulted in the applicant being sentenced to a lengthier term of imprisonment than he would have received if he had been sentenced at any time after the commission of the offence and prior to this Court’s decision in Dalgliesh. The applicant submitted that the trial judge should have taken this matter into account and accorded a degree of moderation to the sentence imposed.

Finally, the applicant contended that, in all the circumstances of the case, the head sentence and the non-parole period are manifestly excessive.

Analysis
First proposed ground

It will be recalled that the trial judge made the following finding in relation to the context of the offending the subject of charge 1:

In relation to the issue of the context of this offending, I am satisfied beyond reasonable doubt of Ms Thrussell’s evidence that every few days whilst staying at [the halfway house] on this occasion you had sexual intercourse with her.[94]

[94]Sentencing remarks [24].

The applicant contended that the conduct that formed the basis of charge 1 should be treated as ‘an isolated event’ and that should be taken into account as a mitigating factor in determining the appropriate sentence.[95] During the plea hearing, the prosecutor initially conceded that it would be appropriate for the trial judge to give the applicant the full benefit of his acquittals by treating charge 1 as an isolated incident.
[95]In R v Storey [1998] 1 VR 539, Winneke P, Brooking and Hayne JJA and Southwell AJA said (at 370-1):
Having regard to the matters of principle we have mentioned and to the numerous authorities both in this country and elsewhere to which we were referred we consider that the principles to be applied are those which we have earlier identified, namely that the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt but if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

The trial judge said that she had ‘some problems with that’: the way in which the Crown presented charge 1 ‘was inclusive of her evidence of other sexual assaults upon her’ at the halfway house, and ‘that was led in terms of context’, so that ‘if the jury were not accepting of that then one would expect a verdict of not guilty surely’. Later in his submissions, the prosecutor accepted that it would be open to the trial judge ‘to form the view that there were other incidents that occurred at [the halfway house] based on [Sandra’s] evidence’ and that that ‘would certainly not be, in my submission, inconsistent with the acquittals on the other charges involving [Sandra]’.

In our opinion, it was open to the trial judge to find that the offending the subject of charge 1 was not an isolated event and to reject the submission that its seriousness was therefore mitigated. In the present case, a finding that the conduct was isolated would have had to have been made on the balance of probabilities. As it happened, the trial judge found that ‘every few days whilst staying at [the halfway house] on this occasion [the applicant] had sexual intercourse with [Sandra]’. She said that she made that finding ‘beyond reasonable doubt’.

We would therefore reject the first proposed ground of appeal.

Second proposed ground

By his second proposed ground, the applicant contended that the trial judge did not consider principle of equal justice and therefore gave no consideration to sentencing practices at the time of the offending some 30 years ago.

Section 5(2) of the Sentencing Act 1991 provides, in relevant part:

(2)       In sentencing an offender a court must have regard to—
(a)       the maximum penalty prescribed for the offence;
…
(b)       current sentencing practices …

In Markarian v The Queen,[96] Gleeson CJ, Gummow, Hayne and Callinan JJ said the following in relation to the consideration of maximum penalties in imposing sentence:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[97]

[96](2005) 228 CLR 357.

[97]Ibid 372 [31].

In relation to current sentencing practices, in Director of Public Prosecutions v Dalgliesh (a pseudonym),[98] Kiefel CJ, Bell and Keane JJ said:

[T]he terms of s 5(2) are clear such that, while s 5(2)(b) states a factor that must be taken into account in sentencing an offender, that factor is only one factor, and it is not said to be the controlling factor.[99]

[98](2017) 349 ALR 37.

[99]Ibid 40 [9].

In the present case, the maximum penalty for incest at the time of the offending was 20 years’ imprisonment. At present, the maximum penalty is 25 years’ imprisonment.

The fact that current sentencing practices are to be taken into account does not mean that sentencing practices at the time of the offending and sentencing practices between then and the present are irrelevant. On the contrary, the principle of equal justice may make them relevant.[100]
[100]Stalio v The Queen (2012) 46 VR 426, 445 [78] (Neave and Osborn JJA and King AJA) (‘Stalio’).

In Stalio v The Queen,[101] the offender pleaded guilty to a series of sexual offences involving young girls going back many years between 1974 and 1983. He relied upon s 5(2)(b) of the Sentencing Act 1991. He contended that ‘sentencing practices’ for the offences in question meant sentences typically imposed for such offending at the time when the offences were committed; in other words, the sentencing judge should have ignored the fact that sentences for sexual offences had increased dramatically over the years and focussed only upon the practices of the past.
[101](2012) 46 VR 426.

This Court held that the phrase ‘current sentencing practices’ in s 5(2)(b) refers to sentencing practices at the date of sentence, not at the date of the commission of the offence.[102] It added that ‘the concept of equal justice’ requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence.[103]
[102]Ibid 432 [9].
[103]Ibid 432 [9], 440 [52].

On the effect of a substantial lapse of time between the commission of the offence and the imposition of sentence, the Court said:

The principle of equal justice requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. In Lowe v R, Mason J stated:
Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.

It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.[104]

[104]Ibid 440–1 [53]–[54] (citations omitted).

In our opinion, the trial judge was correct to sentence the applicant on the basis that, at the time of the offending the subject of charge 1, the maximum penalty for incest was 20 years’ imprisonment.[105] Moreover, twice in her remarks, she mentioned that the maximum penalty for incest increased from 20 to 25 years’ imprisonment, ‘reflecting the gravity with which this offending is now regarded’.[106] She observed that, ‘even before the increase, the maximum was high, signifying the seriousness of such offending’.[107] In our opinion, the trial judge did not err in failing to give the principle of equal justice further application beyond that implicit in the lower maximum applicable at the date of the offending.[108]
[105]Ibid 436 [25].
[106]Sentencing remarks [32].
[107]Ibid.
[108]See Stalio (2012) 46 VR 426, 445 [78].

The second proposed ground must fail.

Third proposed ground

By his third proposed ground, the applicant contended that the effect of the delay has resulted in his being sentenced to a lengthier term of imprisonment than would otherwise be the case if he had been sentenced at any time after the commission of the offence and prior to this Court’s decision in Dalgliesh. He said that the trial judge should have accorded a degree of moderation to the sentence imposed.

It will be recalled that the trial judge said that the issue of delay, along with the applicant’s lack of prior criminal history, was of ‘much lesser mitigatory weight’ because of the nature of the applicant’s offending.[109] She added that the prevalence of incest in the community called for the court to have particular regard to general deterrence, and ‘[t]he lapse of time without further such offending means specific deterrence is of little moment.’[110]
[109]Sentencing remarks [42].
[110]Ibid.

In the event, the trial judge said that the sentence to be imposed would have regard to just punishment and have the effect of expressing community abhorrence at the type of offending.[111] In so reasoning, the trial judge clearly had due regard to the effect of delay. It was open to the trial judge to find that delay assumed less importance due to the type of offence and to make the observation that she did with respect to the interplay between delay in this case and specific deterrence.
[111]Ibid.

Since the imposition of sentence in the present case, the High Court has delivered judgment in Director of Public Prosecutions v Dalgliesh (a pseudonym).[112] The offender in that case was convicted of two acts of incest, one act of sexual penetration of a child under 16 and one act of indecent assault. He was sentenced to five years and six months’ imprisonment with a non-parole period of three years. The Crown appealed to this Court on the ground that an individual sentence of three years’ imprisonment for the first act of incest, which resulted in the victim falling pregnant, was manifestly inadequate.
[112](2017) 349 ALR 37.

In Dalgliesh, this Court observed that current sentencing practices for incest were ‘demonstrably inadequate’ and ‘devalue the objective gravity of the offence, as informed by the egregious breach of trust and the appalling consequences for victims’.[113] It also said:

As we have said, community values have an important role to play in assessments of the objective gravity of a particular offence. Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded.
Our review of sentencing for incest enables us to make a number of general observations about the current state of sentencing. Most sentences for incest with a dependent child under the age of 18 are around three years and six months or four years’ imprisonment. Slightly higher sentences are imposed if the charge is a representative one involving high levels of repetition or victim impact, or if it involves other circumstances of aggravation, such as ejaculation, pregnancy, threats or overt violence. The highest recorded sentence in such circumstances is six years on a guilty plea and seven years following a trial. There is little evidence of any real differential where the victim is very young.
In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be — and should be — self-correcting.[114]

[113]Dalgliesh [2016] VSCA 148 [123].

[114]Ibid [126]–[128] (citation omitted).

However, the Court concluded that the adequacy of the sentence under appeal should be considered by reference to existing sentencing practices, as the offender had pleaded guilty. The Court decided that, in light of current sentencing practices, the individual sentence under consideration, ‘though extremely lenient, was not wholly outside the permissible range’.[115] Accordingly, it dismissed the appeal.
[115]Ibid.

In the event, the Director of Public Prosecutions appealed to the High Court, which unanimously allowed the appeal.[116] The appeal, as the High Court observed,[117] was concerned only with the significance accorded by this Court to current sentencing practices in determining the question before it.[118] The High Court agreed with this Court’s assessment that current sentencing practices for incest did not reflect the objective gravity of the offending, as indicated by the maximum sentence prescribed for the offence and the moral culpability of the offender.[119] The Court ruled, however, that the offender’s plea of guilty did not stand in the way of the imposition of a ‘just sentence’.[120]
[116]DPP v Dalgliesh(a pseudonym) (2017) 349 ALR 37. The High Court remitted the matter of sentencing back to the Court of Appeal. See now DPP v Dalgliesh (a pseudonym) [No 2] [2017] VSCA 360 (‘Dalgliesh [No 2]’). In Dalgliesh [No 2], the Court of Appeal described the original decision, the circumstances giving rise to the appeal and the reasons for decision of the High Court.
[117]Ibid 40 [8].
[118]See Sentencing Act 1991 s 5(2)(b).
[119]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37, 48 [53].
[120]See now Dalgliesh [No 2] [2017] VSCA 360.

It is plain that the offending the subject of charge 1 was of a serious nature. As the trial judge observed, the applicant’s treatment of Sandra ‘amounted to a brutal sexual assault involving patent violence’; he ‘simply grabbed her, tore off her clothes, held her down while she struggled and penetrated her so violently that [he] injured her vagina and she bled copiously’.[121] Sandra was treated as ‘an object of immediate sexual gratification’, and the offending involved ‘a breach of trust of a particularly gross kind’.[122] It is precisely this type of offending that prompted this Court in Dalgliesh, and indeed the High Court on appeal, to conclude that current sentencing practices for incest failed to reflect the objective gravity of the offending and the moral culpability of the offender.
[121]Sentencing remarks [39].
[122]Ibid [40].

Fourth proposed ground

In our view, it was reasonably open to the trial judge to impose the sentence which she did. In view of the objective gravity of the offending, the applicant’s moral culpability and, in particular, his plea of not guilty, we consider that the sentence of six years’ imprisonment with a non-parole period of four years was a moderate one in all of the circumstances.

Conclusion

The application for leave to appeal against sentence should be granted. The appeal should be dismissed.

APPENDIX

Extract from tendency notice

Description of conduct

Date

Time

Place

Relevant evidence

4. In about 1989 when the accused daughter [sic] [Erica Thrussell] was about 10 years old, the accused directed her into a locked bedroom of the house in which they were staying forced her onto the bed, physically assaulted her, restrained her on the bed, removed her clothing and sexually assaulted her.

Between about 1984 and 1989

Evening or night

Melbourne or Tasmania

[Sandra Thrussell] recalled that when she was aged between 5 and 8 (i.e. between 1984 and 1988) she was living in a suburb of Melbourne. She heard her sister [Erica Thrussell] (who was a teenager at the time) screaming. [Erica] was in the bedroom with the accused. She snuck out and went to the neighbours’ house and used their phone to contact the police. She told the police what she had heard and snuck back inside her house. When the police arrived she unlocked the front door to let them into the house. [Erica] was still screaming loudly. The police kicked in the door to the bedroom and entered the room.

[Sandra] observed [Erica] laying on her back. She was wearing a shirt but no pants or underpants. Her legs were tied with jeans around her ankles and her hands were tied behind her head so that she couldn’t move. She could see blood on [Erica’s] face. The accused, who was not wearing any pants, was standing at the end of the bed. The police took custody of the accused and took him away. [Sandra] was then placed into protective custody until the authorities could locate her mother. When cross-examined at the committal [Sandra] conceded that she could not positively recall where she was living at the time.

As per 4 above

Between about 1984 and 1989

Evening or night

Melbourne or Tasmania

[Tanya] … (the accused’s second eldest daughter) made a statement to the New South Wales Police on 26 June 2006 in which she recalled that the same incident occurred in 1989 when the family was living in Tasmania. She recalled that the incident occurred after the accused and [Greta Jarrett] had an argument in the kitchen about the accused drinking too much and the family not having enough money to pay for food and bills. The accused threw cutlery at [Greta] and punched her and pushed her up against a wall. The accused left the house to find [Nathan Thrussell] and [Greta] was able to escape and left the house.

The accused returned and grabbed a towel from the bathroom and went into his bedroom. He called [Erica] and closed the bedroom door. Ten minutes later she heard [Erica] screaming ‘No please don’t. Just stop’. They discussed what to do and [Sandra Thrussell] jumped out of a window and went to a neighbour to get help. While [Sandra] was gone they listened at the door to the bedroom and heard [Erica] crying. [Cindy] then banged on the door and called out ‘Dad, dad’. The accused opened the door and punched [Cindy] in the face causing her to fly across the room. He yelled ‘Fuck off’.

[Tanya] … then heard a car arrive and [Nathan] opened the door to let the police into the house. The police opened the bedroom door and [Tanya] … saw the accused naked, standing urinating on the bedroom floor. [Erica] was at the end of the bed with nothing on the top half of her body putting on her overalls. She was shaking and looked petrified.

A police woman spoke to [Erica] and asked her what had happened. [Erica] responded, ‘He called me into the room. Closed the door, ripped my clothes off and threw me onto the bde [sic]. He was touching me all over and he put his dick into me’. The police woman asked if he did anything else and she replied, ‘He kept covering my mouth with this hand so I couldn’t scream and he punched me’. [Tanya] … noted that [Erica] had a red mark on her face and it was puffy and she had a fat lip on the lower left side of her mouth.

[2017] VSCA 386

20 December 2017