Watkins (a pseudonym) v The King

Case [2023] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2022 0144
CHARLES WATKINS (A PSEUDONYM)[1] Applicant
V
THE KING Respondent

[1]To avoid the possibility of identifying the victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES: PRIEST JA and J FORREST AJA
WHERE HELD: Melbourne
DATE OF HEARING: 8 August 2023
DATE OF JUDGMENT: 1 September 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 203
JUDGMENT APPEALED FROM: [2022] VCC 333 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Rape – Position of trust – Whether relative invited to party was in position of trust vis-à-vis child – Whether applicant denied procedural fairness where trial judge did not raise issue at plea – Error found – No reasonable prospect of sentence reduction – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Standard sentencing – Whether trial judge mistook operation of standard sentencing regime – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Manifest excess – Leave to appeal refused.

Crimes Act 1958, s 38; Criminal Procedure Act 2009, s 280; Sentencing Act 1991, s 11A.

Dibbs v The Queen (2012) 225 A Crim R 195; DPP (Vic) v Gorgulu [2023] VSCA 140; Neubecker v The Queen (2012) 34 VR 369; RP v The Queen (2015) 90 NSWLR 234; Suleman v The Queen [2009] NSWCCA 70; Thu v The Queen [2017] VSCA 28.

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Counsel
Applicant: Ms A Wong
Respondent: Ms J Warren

Solicitors
Applicant: Victoria Legal Aid
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
J FORREST AJA:

  1. The applicant, Charles Watkins, has applied for leave to appeal against a sentence imposed by Judge Smallwood in the County Court at Latrobe Valley, pursuant to s 278 of the Criminal Procedure Act 2009 (the ‘CPA’).

  2. We have determined that, although the applicant has established sentencing error, there is no reasonable prospect that the Court would reduce the total effective sentence despite this error. These are our reasons for refusing this application.

Circumstances of the offending

  1. On 19 October 2018, a birthday party was held at a local park in Traralgon for Erin,[2] and her brother. Erin was aged 14. The applicant, then aged 28, attended. Both he and Erin are of Aboriginal descent, and he was regarded by Erin as an ‘Uncle’.

    [2]A pseudonym.

  2. At approximately 7:00 pm, the party moved to Erin’s home. About 20 persons were present, including the applicant. Whilst at the house the applicant consumed alcohol but not to the extent that he was totally intoxicated.

  3. During the evening, Erin stayed in her mother’s bedroom with her two cousins — they were all in the same bed. Erin came out at one stage to sing happy birthday to her brother.

  4. At around 10:30 pm, as Erin was falling asleep, the applicant entered the bedroom. The applicant went to the bed,…

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Details
AGLC
Watkins (a pseudonym) v The King [2023] VSCA 203
Case
[2023] VSCA 203
Decision Date

CaseChat Overview and Summary

The applicant, Watkins, appealed against his conviction and sentence for rape, arguing procedural unfairness and errors in the trial judge’s application of the standard sentencing regime. The Court of Appeal found that the trial judge erred in concluding that Watkins was in a position of trust without properly exploring the issue or giving Watkins an opportunity to respond. This finding constituted a denial of procedural fairness. The court further held that the evidence did not support a conclusion that Watkins was in a position of trust, as the relationship between Watkins and the complainant was not one of mutual obligation and responsibility.

The court also examined whether the trial judge had correctly applied the standard sentencing regime, finding no error in the judge’s approach. The court concluded that there was no reasonable prospect that an appeal against sentence would succeed, and thus denied leave to appeal. The Court of Appeal emphasised that the nature of friendships does not inherently create a relationship of trust for sentencing purposes, as friendships lack clearly defined boundaries and obligations. This distinction was highlighted in the recent case of DPP (Vic) v Gorgulu.

In conclusion, the Court of Appeal upheld the conviction and sentence, finding no procedural unfairness or error in the trial judge’s application of the law. The court denied leave to appeal, affirming that the relationship between Watkins and the complainant did not constitute a position of trust within the meaning of the sentencing regime.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In allowing the appeal, Davies J (with whom Johnson J and Hamill J agreed) said:The only evidence relevant to the issue of the applicant being in a position of trust was found in this portion of the transcript:Q202. O.K. So like you just described like the first incident how you said that he touched you and you were locked in the room. Tell me about the first time you remember him putting his penis in your arse?A. That was when dad and that weren’t home and he had to watch us.Q203. So your dad wasn’t home?A. No.Q204. And neither was his girlfriend?A. [C].Q205. [C]. And who had to watch you?A. [RP] my dad would make [RP] watch us ’cause dad was at work and [C] was at the shops.Q206. So dad was at work and [C] was at the shops?A. Yeah she went to the shop.Q207. So who was there on that day?A. Just me and [RP], [D] and [K].Q208. So you, [RP], [D] and [K], excuse me, [K]?A. Yeah.… on the basis of the evidence in that portion of the transcript, it was not open to his Honour to conclude that the applicant was in a position of trust with respect to the complainant. Although the Crown submitted that the applicant believed he had authority to send the complainant to his room as a punishment, that raises the further issue, not explored at the sentencing hearing, of whether the applicant understood or was capable of understanding what a position of trust might entail in terms of behaviour.There is the further matter that the Crown never put forward any suggestion that the applicant was in a position of trust. For that reason, and in the absence of his Honour having raised it with counsel for the applicant, there was a denial of procedural fairness in his Honour making that finding.[21][21]Ibid 250–1 [83]–[85] (emphasis added). Recently in this Court in DPP (Vic) v Gorgulu, Niall, T Forrest and Osborn JA held that a friendship per se did not give rise to such a relationship:Friendship is not a relationship that the common law treats as giving rise to obligations and mutual duties. Friendship is a broad concept that does not have clearly defined boundaries. Nor is it possible to identify duties that are imposed by the law on one party to look after, care or assume responsibility for the other. No doubt the mutual bonds of affection and goodwill that inhere in a friendship often give rise to feelings of obligation and care but the nature of friendships are so diverse and the features infinitely variable that it is simply not possible to impose any categorical rule in relation to them.Further, extending the category of trust for the purpose of sentencing to friendships risks diluting the significance that attaches to other clearly established relationships such as that of parent, carer, employer or teacher.[22][22][2023] VSCA 140, [24]–[25] (emphasis added). This is not to say that in a particular factual scenario a relationship between a close family friend and a child can never constitute a relationship of trust. It depends upon the facts of each case and particularly whether they give rise to a relationship of mutual obligation and responsibility. An obvious example is where the friend has been given custody or care of a child and abuses that responsibility.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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