New South Wales Court of Criminal Appeal CITATION : R v AJH [2001] NSWCCA 62 revised - 24/08/2001 FILE NUMBER(S) : CCA 60691/2000 HEARING DATE(S) : 1/3/01 JUDGMENT DATE : 1 March 2001 PARTIES : Regina v AJH JUDGMENT OF : Ipp AJA at 41, 54; Simpson J at 56; Carruthers AJ at 2, 43 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0369 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : P J O'Donnell (Appellant) C K Maxwell QC (Crown) SOLICITORS : John Cartwright & Co (Appellant) S E O'Connor (Crown) CATCHWORDS : Whether on the whole of the evidence a reasonable jury must have had a reasonable doubt about the accused's guilt - severity appeal - appellant supplied drugs and alcohol to two 14 year old girls to render them less capable of resisting sexual assault. LEGISLATION CITED : Crimes Act 1900 Drugs Misuse and Trafficking Act 1985 Board of Education v Rice [1911] CASES CITED: C M v The Queen (1994) 181 CLR 487 Mahon v Air New Zealand Ltd [1984] AC 808 R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 DECISION : See paragraphs 51-54 - 1 -1 IPP AJA: I will ask Justice Carruthers to deliver the first judgment. Bearing in mind the age of the complainants the Court orders that there is to be no publication of any material capable of identifying them. 2 CARRUTHERS AJA: The appellant was arraigned before his Honour Judge Gibson Q.C. and a jury of twelve at the Sydney District Court on an indictment containing eleven counts. There are two complainants, both of whom were, at the time of the offences charged, fourteen years of age, which represented the aggravating factor in the first ten counts. All offences are alleged to have been committed between 14 January 2000 and 15 January 2000. 3 Counts 2, 4, 7 and 8 of the indictment alleged that the appellant had sexual intercourse with the first complainant, without her consent, pursuant to the provisions of s 61J of the Crimes Act 1900, (to which I shall hereafter refer as "the Act"). Counts 1, 3 and 5 alleged that the appellant indecently assaulted the first complainant pursuant to the provisions of s 61M of the Act. Count 6 alleged that the appellant assaulted the first complainant, pursuant to the provisions of s 61 of the Act. 4 Counts 9 and 10 alleged that the appellant indecently assaulted the second complainant pursuant to the provisions of s 61M of the Act. Count 11 charged that the appellant had supplied cannabis pursuant to ss 25(1) and 32(1)(h) of the Drug Misuse and Trafficking Act 1985. 5 The appellant pleaded not guilty to each of the first ten counts and guilty to the eleventh count. The trial accordingly proceeded in relation to the first ten counts and the jury returned verdicts of guilty in relation to each of those counts. 6 The sole ground of appeal is that on the whole of the evidence properly before the jury, it was not open to them to be satisfied beyond reasonable doubt as to the guilt of the accused. 7 There was a considerable amount of evidence in the trial, but for present purposes it is necessary to deal relatively briefly with the nature of the evidence adduced by the Crown. 8 The appellant is a butcher by trade and was born on 14 August 1964. He was therefore, on the date of the alleged offences, 35 years of age. He was divorced and living in an apartment in Marrickville, which was the bottom section of a house occupied by his mother. The apartment occupied by the appellant constituted basically one bedroom, a lounge room, a kitchen and a bathroom. The apartment had access to a small backyard. 9 On the evening of Friday 14 January 2000, the appellant had organised a birthday party at the apartment for his daughter, who was turning fourteen. Also invited were the two complainants and one other fourteen year old. It had been arranged that the girls could sleep overnight at the appellant's premises. This would necessitate them occupying the bedroom, which contained a double bed, customarily occupied by the appellant, and four bunks, two on a lower level and two on a higher level. The bunks, as I understand it, were double bunks at both levels. 10 The first complainant was the appellant's niece by marriage. The relevant events, according to the Crown case, commenced about 10 pm when the appellant was alone in the apartment with the four girls. About 11 pm the appellant and the four girls toasted the appellant's daughter's birthday with a glass of wine. The complainants also drank scotch whisky and Coca Cola, which was provided to them by the appellant. 11 The appellant asked the first complainant if she wanted some marijuana, to which she replied in the affirmative. The appellant then blew smoke into her mouth and kissed her on the lips for two to five seconds, in a sexually suggestive manner. The smoke was, of course, associated with the marijuana. This constituted count 11. 12 The two complainants smoked marijuana, which caused the first complainant to become extremely ill. She went to the backyard and vomited. She gave evidence at the trial that the appellant helped her inside after she had been ill, and whilst doing so, he pulled her towards his penis, which she could feel was erect and was against her buttocks. This constituted count 1. She further deposed that shortly thereafter she went with him for a short walk with the other three girls. When they returned to the apartment she said that she would like to lie down, as she was still ill. 13 The appellant then helped her into the bedroom and placed her on the double bed which was customarily occupied by him. He then left the room, but returned some five minutes later. According to the first complainant, the appellant sat on the bed and put his hand under her pants and put his finger onto the lips of her vagina. This constituted count 2. She said that she tried to move but the appellant punched her in the stomach. This constituted count 6; he then left the room. 14 About twenty minutes later, according to the first complainant, the appellant came back into the bedroom where he took off his jeans and his underpants, and lay on the bed. He then held onto her arm whilst he forcibly pulled down her underpants and tracksuit pants. The first complainant then said he took her hand and placed it on his penis; this constituted count 3. She removed her hand and the appellant put his hand under her shirt and started touching her on the breasts for about two seconds; this constituted count 5. 15 She said that he then put his fingers inside her vagina and moved two fingers inside her vagina; this constituted count 4. He then moved his body down and started to lick her vagina. This lasted for about 30 to 45 seconds; this constituted count 7. About five minutes later, according to the first complainant, the appellant then got on top of her and inserted his penis into her vagina. He moved up and down for about thirty seconds; this constituted count 8. 16 The other three girls then entered the room and the first complainant then left the double bed and got on to the bottom bunk next to the second complainant. According to the evidence of both complainants, the appellant kept getting up from his bed during the night and early hours of the following morning, and "checking on" the two complainants whilst they were in the bunks. According to evidence by the second complainant, the appellant, on a number of occasions, rubbed down her spine onto her backside; this constituted count 10. 17 In so far as the evidence of complaints is concerned, the first complainant gave evidence that she was shaking when she got into the bunk with the second complainant. This was confirmed by the second complainant who found it necessary to "cuddle" and comfort her. The shaking, it would appear, lasted for some two hours. 18 According to the first complainant the second complainant inquired what the matter was, to which she first replied; "Nothing". The second complainant responded: "I know something is the matter because you are shaking. Andrew has been touching me as well."" 19 The first complainant replied that the appellant had been touching her and tried to have sex with her. She later gave evidence explaining why she did not at that stage allege that the appellant had in fact had sex with her. 20 In the morning the first complainant phoned a female friend and told her that the appellant touched her and tried to have sex with her. The person she telephoned then came over to the apartment and on that occasion the first complainant told her that the appellant did, in fact, have sexual intercourse with her. On the same day the first complainant complained to her mother that the appellant had touched her and raped her. Her mother then took her to the Newtown Police Station where she made a statement. 21 During the course of the first complainant's evidence she said that whilst the four girls were having a conversation about movie stars and girls' figures, the appellant joined in the conversation and said that he liked "girls with big breasts and slim bodies". 22 The second complainant gave evidence that at one stage while the girls were talking about a pop singer by the name of Britney Spears the appellant joined in the conversation and said something along the lines of "Please stop talking about Britney or you will make me horny". The second complainant also gave evidence that the appellant kissed her and blew marijuana smoke into her mouth; this constituted counts 9 and 11. She said as a result of his conduct she was "scared and freaking out". 23 The second complainant confirmed that the first complainant had complained to her about the conduct of the appellant, albeit there was some conflict in the evidence at the trial as to precisely what passed between the two young ladies on this occasion. 24 Investigating police arranged for the first complainant to be examined by Dr Joseph Khouri at the Sydney Children's Hospital, Randwick. Dr Khouri made a three and a half page report dated 11 March 2000 which was tendered at the trial and Dr Khouri also gave evidence. 25 He stated that during the examination he observed that the first complainant was tender in the abdomen. He noticed that the tenderness was due to muscular pain. He said that by muscular pain he meant pain that was related to injury to the muscles of the abdomen, which could be related to trauma. He specifically identified the upper abdomen, just below the ribcage in the middle. 26 A genital examination of the first complainant disclosed no tears, bleeding or bruising. However, Dr Khouri agreed that the absence of acute injury did not exclude the possibility of acute sexual assault. 27 The appellant was arrested on 21 January 2000 and taken to Parramatta Police Station where he was interviewed. He admitted to supplying marijuana but denied the assaults and the allegations of sexual intercourse. He specifically denied taking the first complainant back into the apartment after she had been ill in the backyard. He said he did not know who helped her back into the apartment. 28 He conceded that he lay down on the double bed next to the first complainant, having removed his jeans. He denied, however, that he had removed his underpants. He said that he lay on top of the covers. He said that the reason he went over to the bottom bunks after the two complainants were sleeping in those bunks, was because the girls looked a bit squashed and he inquired whether they were okay and comfortable. He said he put a doona across the two of them. He conceded in the police interview that when the girls were leaving the house in the morning he said, "What goes on in this house stays in this house", albeit, he said that he did not say this in a threatening manner. He conceded that it was stupid to offer the two complainants alcohol and marijuana but that they had been talking about it and asking for it. 29 The jury returned their verdicts of guilty after what would appear to have been a brief adjournment on 14 August 2000, when the matter was adjourned to 6 October for sentence. On that day his Honour imposed the following sentences, in each case to date from 14 August 2000. The following sentences were fixed terms of imprisonment: count 1 - two years; count 2 - three years; count 3 - one year; count 5 - two years; count 6 - 9 months; count 7 - three years; count 8 - four years; count 9 - nine months; count 10 - 18 months; count 11 - three years. 30 In relation to count 4 which, as I have indicated, was digital penetration of the first complainant, his Honour imposed an overall sentence of imprisonment for six years to commence on 14 August 2002 and to expire on 13 August 2008. That sentence was accordingly cumulative upon the first count, which expired on 13 August 2002. 31 His Honour fixed a non-parole period of six years to date from 14 August 2000 and to expire on 13 August 2006. When imposing that non-parole period his Honour said, "There will be a non-parole period on the overall sentence of eight years of six years, which will expire on 13 August 2006." 32 The appellant, having raised the subject ground of appeal, it is necessary for this Court to make an independent assessment of the evidence. It is now well established that the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused's guilt. In answering that question the Court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the fact that the jury has had the benefit of seeing and hearing the witnesses: see R v M (1994) 181 CLR 487. 33 At the trial the Crown called all relevant witnesses, both in relation to the offences of the night in question, complaints by the two complainants and the investigation by the investigating police, including the interviews carried out by them. In considering the totality of the evidence which was before the jury this Court has been assisted by the appellant's submissions which contain twelve discrete grounds which are said to constitute aspects of the evidence which were capable, certainly in the aggregate, of leading to a conclusion that a jury, acting reasonably, must have had a reasonable doubt about the accused's guilt. 34 This Court has also had the advantage of careful submissions on behalf of the Crown directed to the twelve discrete grounds. These competing submissions have considerably assisted the Court in the evaluation of the evidence as a whole. 35 Having carefully read and considered the evidence as a whole and evaluated the competing submissions in relation to the twelve discrete grounds, I am completely unable to conclude that a reasonable jury must have had a reasonable doubt about the accused's guilt. On the contrary, the Crown's case was demonstrated to be a powerful one, albeit, the appellant denied the offences in the first ten counts in their entirety. 36 It is important to note, however, that concessions were made by him in evidence and in his responses to the police questions which would, no doubt, have had the effect of reinforcing in the jury's minds the evidence produced on behalf of the prosecution. 37 It is not really necessary for me to refer to the twelve discrete grounds to which I have made reference, save to say that in so far as a number of these points are concerned, they merely identify areas where there was conflicting evidence, of a kind which one would expect to see in a case of this nature. They also identify aspects of the first complainant's evidence where she frankly conceded that her evidence differed from the statement which she had made to the investigating police at a time, she said, when she was under much stress and in a state of some confusion. 38 One discrete ground should be mentioned and that is that it was contended that there was an inherent improbability about the offences being committed in the way the complainants contend, bearing in mind the set up of the apartment and its confined nature. Regrettably, however, as was pointed out by this Court in Williams [1999] NSWCCA 9, sexual assaults against young people frequently take place in circumstances of confinement where, to a reasonable person, it would appear somewhat odd that the accused could have conducted himself in such a manner in those circumstances. But nevertheless the evidence here demonstrates irresistibly that such conduct did take place. 39 It is true that the first complainant was affected by both alcohol and cannabis on the night in question, but reading her evidence with care, I am unable to conclude that she could be classified as an unreliable witness as a result of such ingestion. In quite significant respects her evidence is confirmed by one or more of the other witnesses. 40 I do not accept also that it was inherently improbable that her track suit pants could have been removed by the appellant in the manner in which she gave evidence. Thus I would, with respect to the careful arguments advanced on behalf of the appellant, have no hesitation in proposing that the conviction appeal be dismissed. 41 IPP AJA: I agree with the reasons and conclusions enunciated by Justice Carruthers. 42 SIMPSON J: I also agree. 43 CARRUTHERS AJ: That being so, it is necessary to turn to the application for leave to appeal against sentence. The appellant had the advantage when he came forward for sentence, that he had committed no prior criminal offences, and this was of course a matter which was taken into account by his Honour. In support of the application for leave to appeal, counsel for the applicant relied upon or sought to rely upon statistics produced by the Judicial Commission in relation to the subject offences. 44 Dealing with the first of the ten matters, the point must be made, as it was by the presiding judge in the course of argument, that in this particular case little assistance can be obtained from those statistics, bearing in mind the large number of offences which were committed during a relatively short period of time, and bearing in mind the serious nature of those offences. However, consideration has been given to them. 45 It must also be borne in mind, as was pointed out by Mr Maxwell of Queen's Counsel on behalf of the Crown, that there were significant aggravating features here, constituted by the fact that the appellant made available to both complainants drugs and alcohol, which would dull their senses. The ingestion of the alcohol and the drugs would have made both girls less capable of resisting the conduct of the appellant, and the inference is also irresistible that this conduct was engaged in for the purpose of making the two young complainants receptive to the criminal conduct which the applicant had in mind. 46 There is also the fact that whilst she was in such a vulnerable state, violence was used on the first complainant. There was a serious breach of trust involved in so far as both complainants were concerned. 47 The sentences are high, as was conceded by Mr Maxwell of Queen's Counsel, with his customary fairness. However, there was criminality of a high order. 48 Counsel for both the applicant and the Crown have rightly drawn our attention to the fact that in imposing the sentence on count 4 his Honour, with respect, failed to comply with the provisions of s 53(1) of the Crimes (Sentencing Procedure) Act 1999, in that he imposed an overall non-parole period rather than confining it to count 4, which was obviously what he had in mind. 49 In my view, in so far as the overall effect of his Honour's sentencing regime is concerned, I would not interfere at this stage with the first ten counts. I would, however, propose that because of the failure to comply with s 53(1) it will be necessary to vary the sentence imposed upon count 4. 50 It would appear, although his Honour did not express the reason for so holding, that his Honour took the view that count 4 was the most serious offence. Accepting his Honour's view in that regard, I would propose that his Honour's sentence in relation to count 4 be varied as follows: In lieu of imposing a sentence of six years to commence on 14 August 2002 with an expiry date of 13 August 2008, and imposing a non-parole period of four years expiring on 13 August 2006, I would propose that in relation to count 4 a sentence be imposed of four years to date from 14 August 2004, which is the expiry date of the fixed term on count 8, and that would accordingly expire on 13 August 2008. I would propose that there be a non-parole period of two years to date from 14 August 2004 and to expire on 13 August 2006. 51 There are in my opinion special circumstances. Bearing in mind that this is the first custodial sentence which the applicant has served, and the length of the overall sentences, a longer period of parole would be required than would be achieved by the application of the conventional formula. 52 In so far as count 11 is concerned, it was submitted on behalf of the applicant that bearing in mind the plea of guilty to this count and the Judicial Commission's statistics, the sentence of a fixed term of three years was manifestly excessive. It is a high sentence but it must be borne in mind that there were very special circumstances associated with the commission of this particular offence. I have already indicated my view as to the reason the applicant committed this particular offence. The supply of the drug to the two girls, bearing in mind their youth and vulnerability, was a very serious offence. I am, accordingly, unable to conclude that his Honour's sentence in regard to count 11 was, therefore, beyond the discretion available to him. 53 In summary, therefore, I would propose that in relation to counts 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11, that the application for leave to appeal be allowed, but that the appeal be dismissed. In relation to count 4, I would propose that the application for leave to appeal be granted and allowed to the extent of the variation which I have already indicated. 54 IPP AJA: As Carruthers AJ pointed out, in assessing the appropriate sentence for count 11, the purpose for which the cannabis was supplied is to be taken into account. That purpose should not be taken into account in regard to the sentences for the other convictions, and, in my view, has not been. 55 Secondly, in my opinion, each of the sentences proposed by Carruthers AJ reflects the criminality involved in respect of the particular offences for which it was imposed. In other words, the structure of the sentences has not been artificially structured to arrive at an appropriate overall term of imprisonment. 56 SIMPSON J: I would prefer that the defect in sentencing that has been identified in relation to the sentence imposed in respect of count 4 be rectified by a variation of the non-parole period to one of four years, with no other alteration to the sentence. That is because it seems to me that a sentence of six years with a non-parole period of four years more adequately reflects the criminality than one of four years with a two year non-parole period and would more adequately comply with the principles stated in R v Pearce [1998] HCA 57; 194 CLR 610. This is, however, only a technicality. 57 This Court is now familiar with the frequent use of sentencing statistics. The sentences to be imposed will become part of the data with potential to skew the overall statistics of serious offences of this kind. But as the sentence imposed by Carruthers AJ has the same practical effect I am prepared to agree to the orders proposed. 58 IPP AJA: The orders of the Court will accordingly be those proposed by Justice Carruthers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.