Gill v The Queen [2019] VSCA 92 (30 April 2019)

Last Updated: 30 April 2019

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0108

DENNIS MALCOLM GILL Applicant v THE QUEEN Respondent

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CRIMINAL LAW – Conviction – Separate trials on two indictments – Indecent assault on a male person – Buggery – Attempted buggery – Historical offending dating back to 1976 and 1977 – Jury convicting on 2 of 5 charges on second indictment and acquitting on remaining 3 – Whether verdicts inconsistent – Tyrrell v The Queen [2019] VSCA 52 considered – No logical or factual inconsistency – Verdicts not unsafe or unsatisfactory – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Total effective sentence on both indictments of 15 years and 10 months’ imprisonment – Applicant elderly and unwell but sentenced as serious sexual offender – Applicant in a position of trust, at the time, over young boys in his care – Whether sentence ‘crushing’ – R v Vaitos (1981) 4 A Crim R 238 and R v Gregory [2000] VSCA 212 considered – Whether orders for cumulation made without proper regard to continuous transaction rule – No remorse – Sentence severe but within range – Application for leave to appeal refused.

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APPEARANCES: Counsel Solicitors For the Applicant Applicant appeared in person (with the assistance of Mr M Phillips – Associate Public Defender, Victoria Legal Aid) For the Respondent Mr R Gibson SC with Ms A Roodenburg Mr J Cain, Solicitor for Public Prosecutions

KYROU JA

KAYE JA

WEINBERG JA:

Preliminary objections by applicant to jurisdiction of Court below and this Court

1 At the commencement of the hearing of these applications for leave to appeal against conviction and sentence, the applicant indicated that he wished to represent himself, rather than avail himself of the assistance of the Associate Public Defender, Mr Matthew Phillips, who was prepared to present the submissions on the applicant’s behalf. That was his right, and he was of course permitted to do so. Mr Phillips, who had been briefed by Victoria Legal Aid to conduct these applications, kindly offered to remain in Court, and provide such assistance to the applicant, and the Court, as might be required.

2 The applicant was then invited to present his argument. He was reminded on a number of occasions of the need to address each proposed ground of appeal in each of the two applications. He was told, in no uncertain terms, that he would be unlikely to do himself justice if he persisted in presenting his submissions in person. Despite being so advised, he insisted that he would present his own argument.

3 What next occurred may be briefly summarised. The applicant commenced his submissions by indicating that he wanted them transcribed so that they could be passed on to the High Court in Canberra. He spoke of the proceedings against him involving a breach of international law. He referred to Aboriginal history going back 70,000 years, and referred to Indigenous artwork. When told that these matters were not relevant to these applications, he replied that he understood, but that this would form part of what he wished to present at the High Court.

4 The applicant next referred to the long history of Australian Aboriginal languages. He was again told that this had nothing to do with his applications. He replied that he was aware of that fact. When asked why he was raising the matter, he replied that ‘no court in Australia is valid’. He then submitted that the court that had convicted him was also invalid. His explanation was that ‘this is still a part of colonial law’ and he referred to ‘the Republic of Australia’. He insisted that he did not want to address the written submissions that had been filed on his behalf in his written cases, but wished to deal with the matter in his own way.

5 This led to an excursus into Captain Cook having disobeyed his instructions, and this having led to the arrival of the First Fleet. This was followed by a summary of Australian colonial and constitutional history, which occupied some 20 minutes or so. It culminated in the applicant claiming that he had not been convicted under Australian law, but rather under British law. He submitted that the charges had been brought by officials who had no authority to prosecute him, and who had also committed high treason. There then followed a discussion of problems associated with human memory, and some comments about the content of the evidence led against him at trial. In essence, he submitted that he was innocent of the charges of which he had been convicted.

6 At that point, Mr Phillips presented oral submissions in support of the applicant’s grounds of appeal, both in relation to conviction and sentence. We should note that these submissions were made with the applicant’s authority. They were very helpful, and to the point.

7 The applicant was then invited for a second time to add anything he wished to say regarding the actual grounds of appeal. He again denied his guilt and added that he had not been properly represented at his trial.

8 After the respondent had presented submissions in reply, both Mr Phillips and the applicant were given a further opportunity to address the Court regarding these matters. The applicant simply reiterated that this Court was not validly constituted, and accordingly, his convictions could not stand.

9 It was clear from the applicant’s oral submissions that there was no substance to any of the matters upon which he sought to rely. The County Court of Victoria, the Supreme Court of Victoria, and this Court are all validly constituted. The applicant was charged with offences under valid Victorian laws. His objections to jurisdiction, based upon supposed invalidity, must all be rejected.

The applications before this Court

10 That then brings us to the applications before this Court. The applicant stood trial in the County Court on two separate indictments, D10364339.4 and D10364339.3A. On 22 December 2017, he was found guilty of all three charges on the first of those indictments, and on 2 February 2018, he was convicted on 14 of the 18 charges laid pursuant to the second of those indictments.[1]

11 He was sentenced as follows:

Charge on Indictment D10364339.4 Offence Maximum Sentence Cumulation 1 Crimes Act 1958] Indecent assault on a male person [s 68(3A) 5 years 2 years 6 months 2 Crimes Act 1958] Attempted buggery [s 68(3) 10 years 4 years Base 3 Indecent assault on a male person 5 years 2 years 1 year Total Effective Sentence 5 years and 6 months’ imprisonment Non-Parole Period: See below Pre-Sentence detention declaration See below 6AAA Statement: Not applicable Other relevant orders: Declared a serious sexual offender on charge 3. Registrable sex offender for life (mandatory)

Charge on Indictment D10364339.3A Offence Maximum Sentence Cumulation 4 Indecent assault on a male person 5 years 2 years and 6 months 6 months 5 Crimes Act 1958] Buggery [s 68(3) 20 years 6 years Base 6 Indecent assault on a male person 5 years 1 year and 6 months 4 months 7 Indecent assault on a male person 5 years 1 year and 6 months 4 months 8 Indecent assault on a male person 5 years 2 years 6 months 6 months 10 Indecent assault on a male person 5 years 3 years and 6 months 1 year 11 Indecent assault on a male person 5 years 3 years 6 months 12 Indecent assault on a male person 5 years 1 year and 6 months 4 months 13 Indecent assault on a male person 5 years 1 year and 6 months 4 months 14 Indecent assault on a male person 5 years 2 years and 6 months 6 months 15 Indecent assault on a male person 5 years 2 years and 6 months 6 months 16 Indecent assault on a male person 5 years 2 years and 6 months 6 months 17 Attempted buggery 10 years 3 years and 6 months 1 year 18 Indecent assault on a male person 5 years 2 years and 6 months 6 months Total Effective Sentence 12 years and 10 months’ imprisonment Global Total Effective Sentence 2 years and 6 months of the sentence imposed on indictment D10364339.4 to be served concurrently with the sentence imposed on indictment D10364339.3A. 15 years and 10 months’ imprisonment Non-Parole Period: 11 years Pre-Sentence detention declaration 153 days 6AAA Statement: Not applicable Other relevant orders: Declared a serious sexual offender on charges 4–8, 10–18. Registrable sex offender for life (mandatory)

12 The applicant now seeks leave to appeal against both conviction and sentence. In relation to the appeal against conviction, his sole proposed ground of appeal is as follows:

Ground 1: The verdicts of guilty on charges 4 and 5 on indictment D10364339.3A were inconsistent with the verdicts of not guilty on charges 1, 2 and 3.

13 The applicant’s proposed grounds of appeal against sentence are in the following terms:

Ground 1: The learned sentencing judge misapplied the totality principle. Particulars:

the total sentence is disproportionate to the applicant’s overall criminality,

the total sentence is crushing, having regard to the accused’s age and ill-health, and

the learned sentencing judge erred in that the orders for cumulation failed to reflect the occurrence of some offences on the same occasion as, and at the same time as, other more serious offending.

Ground 2: the individual sentences, total sentence and non-parole period are manifestly excessive. Particulars: Insufficient weight was given to:

delay, and

the applicant’s age and ill-health.

The evidence at both trials

14 There were a total of five victims in relation to the applicant’s offending. The first indictment concerned two of those victims. We will designate them as ‘DH’ and ‘NR’ respectively. The second indictment concerned the remaining three victims, ‘DB’, ‘MZ’ and ‘PZ’.

15 These were historical sex offences. They were said to have been committed in 1976 and 1977. DH was aged between about 12 and 13 at the relevant times, and NR aged about 13. DB was younger, having been aged between about 8 and 9 at the time, while MZ was aged between about 12 and 13, and his younger brother, PZ, between about 10 and 11. The applicant was aged between about 27 and 28 during the period of the alleged offending. He is now aged 70.

16 During the period 1976 to 1977, the victims were all living in care at the Sutherland Homes for Children, in Diamond Creek. This was a facility for Wards of the State that was run by the Victorian Government. The facility consisted of eight cottages, each housing up to eight children. Each cottage was managed by a pair of ‘cottage parents’ who lived with the children, and supervised them.

17 At the beginning of 1975, the applicant commenced an Associate Diploma in Welfare Studies at the Caulfield Institute of Technology. He was required, as part of that course, to undertake a field placement. He happened to be friends with the Superintendent in charge of Sutherland Homes, and managed to secure a position as a welfare officer at that facility. During his placement, he was permitted to live in the Superintendent’s caravan, which was located at the rear of the cottages.

Indictment D10364339.4

DH — charges 1 and 2

18 In about 1972, DH was removed from his foster family and placed in care at Sutherland Homes. He was housed in ‘Cottage 8’, along with NR. On an occasion between January and August 1976, the applicant invited DH to the caravan which he was then occupying, for some lollies and a drink. DH entered the caravan and sat down on a bench seat. The applicant offered him some sweets and sat down next to him. He put his arm around DH and then put his hand down DH’s pants and onto his penis. He then masturbated DH’s penis (charge 1 — indecent assault). While the applicant was engaged in masturbating DH, he had his other hand on his own penis, and was masturbating himself.

19 The applicant then pushed DH down on the bench so that he was lying on his stomach. He removed DH’s shorts and underwear, got on top of him, and pinned him down. He then attempted to insert his penis into DH’s anus (charge 2 — attempted buggery). DH resisted, kicking and screaming. The applicant told him to be quiet. He then got off him, and threatened him that if he told anyone, something worse would happen. DH ran out of the caravan and hid for several hours before returning to his cottage.

NR — charge 3

20 In 1974, NR was made a Ward of the State, and put in care at Sutherland Homes. As indicated, he too was housed in ‘Cottage 8’. During the period between January and August 1976, the applicant would regularly drive NR and some of the other boys, to and from Scouts. On one occasion, when NR was aged 13, after the applicant had driven several boys back from Scouts, he invited NR to spend the night in the caravan with him. NR agreed.

21 Upon entering the caravan, NR saw that two beds had been made up, a double bed at the back and a single bed at the front. After about half an hour, the applicant asked NR if he could look at his penis. NR refused. He then told the applicant that he wanted to go to sleep, and got into the single bed. Sometime later, NR woke to find the applicant lying next to him. He had his hands down NR’s pants and was masturbating NR’s penis, as well as his own. NR pushed the applicant away, and ran out of the caravan, crying and screaming.

Indictment D10364339.3A

DB — charges 1–5

22 In about 1970, DB was placed in care at Sutherland Homes. On an occasion between January 1976 and February 1977, when DB was aged about eight or nine, the applicant invited him to the shops to buy some takeaway food. Upon their return, they went inside the caravan and ate their meals.

23 DB’s next memory was of being in the shower block with the applicant. They were both naked and showering under different shower heads. The applicant took hold of DB’s hand, and had him masturbate the applicant (charge 2 — indecent assault — acquittal). The applicant then placed his hand onto DB’s penis and masturbated him (charge 1 — indecent assault — acquittal). The applicant next placed his penis in between DB’s legs, and rubbed it back and forth (charge 3 — indecent assault — acquittal). DB asked the applicant what he was doing, and was told it was just a game. They both got dressed and went back to the caravan.

24 According to DB, the applicant and he were both lying on the bed, in the caravan, when the applicant pulled DB’s pants down to his ankles. The applicant then pulled his own pants down, exposing his erect penis. DB was lying on his left-hand side, and the applicant rubbed his penis back and forth between DB’s legs (charge 4 — indecent assault).

25 The applicant then inserted his penis into DB’s anus, causing him pain (charge 5 — buggery). DB began to cry and told him to stop. The applicant ignored DB’s protests, and continued to penetrate him. He told DB not to tell anyone, and DB agreed. DB was unsure as to whether he blacked out due to the pain. All that he could recall was sitting underneath a tree the next day, and crying.

MZ — charges 6–11, and 18

26 MZ, born October 1963, and his brother, PZ, born March 1965, were both Wards of the State, who were housed at Sutherland Homes. In 1996, MZ approached police, claiming that the applicant had sexually abused him when he was a child at that facility. Ultimately, the police took no action in relation to that complaint.

27 MZ’s evidence was that, one night, in either 1976 or 1977, the applicant invited him to his caravan to look at the applicant’s stamp collection. That same night, he slept over in the caravan, and awoke to find the applicant with one hand on MZ’s penis (charge 6 — indecent assault), and seemingly attempting to penetrate MZ’s anus with either his finger or his penis (uncharged act). He managed, successfully, to resist.

28 Subsequently, the applicant visited MZ in his cottage. He asked MZ whether he had told anyone what had previously occurred, and MZ insisted that he had not. The applicant then pushed MZ against a wall and put his hands down MZ’s pants, touching him on the penis while licking him on the face (charge 7 — indecent assault).

29 According to MZ, there were other occasions when the applicant touched his penis on the outside of his clothing, and kissed and licked his mouth, face and neck (uncharged acts).

30 Subsequently, on one occasion, in the applicant’s caravan, MZ was told to grab the applicant’s penis, and to masturbate him. The applicant did the same to MZ (charge 8 — indecent assault). After that, the applicant put MZ on the bed, on his stomach. He inserted his penis into MZ’s anus (charge 9 — buggery — acquittal). It should be noted, however, that the applicant was convicted on charge 18, indecent assault, this having been left to the jury as an alternative to the charge of buggery.

31 The applicant then procured some sort of object, and inserted it into MZ’s anus (charge 10 — indecent assault). MZ was bleeding from the bottom as a result.

32 There was a further occasion when, whilst with the applicant in his caravan, MZ sucked on the applicant’s penis while the applicant moved MZ’s head up and down (charge 11 — indecent assault). The applicant ejaculated and licked the ejaculate off MZ’s face.

PZ — charges 12–17

33 PZ described having, in 1976 or 1977, been invited by the applicant into the caravan. On one occasion, the applicant rubbed PZ’s testicles (charge 12 — indecent assault).

34 About two weeks later, again in the caravan, the applicant unzipped PZ’s pants and rubbed his penis (charge 13 — indecent assault). He then started to pull PZ’s pants down and attempted to put his mouth on PZ’s penis. He eventually succeeded in doing so (charge 14 — indecent assault).

35 Several weeks later, in the caravan, the applicant got undressed, and then took PZ’s clothes off. He put his penis between PZ’s legs and made him squeeze his legs together. He pushed against him a number of times until the applicant ejaculated (charge 15 — indecent assault).

36 On the final occasion that PZ attended the caravan, the applicant undressed him, and removed his own clothing. He put his penis between PZ’s legs and grabbed him by the hips and pulled him up and down (charge 16 — indecent assault). After a short while, the applicant told PZ to bend over. He rubbed his penis between PZ’s legs and moved it up to between the cheeks of PZ’s bottom. He then tried to push his penis into PZ’s anus (charge 17 — attempted buggery). PZ managed to escape. He complained to one of his cottage parents, who in turn spoke to the Superintendent. Shortly thereafter, the applicant’s employment was terminated, and he moved out of the facility. The matter was not reported to the police.

The appeal against conviction

Applicant’s submissions

37 The sole ground of appeal against conviction contends that the acquittals on charges 1, 2 and 3 on indictment D10364339.3A were inconsistent with the convictions on charges 4 and 5 of that indictment, rendering those convictions unsafe and unsatisfactory.

38 The principles governing a ground of this nature are well settled. As was recently noted in Tyrrell v The Queen:[2]

The principles, as to inconsistency of verdicts, have been discussed in a number of authorities, including the decisions of the High Court in MacKenzie v The Queen and MFA v The Queen. Where the inconsistency is said to be based on jury verdicts on different counts, the test is one of logic and reasonableness. Essentially, the applicant must satisfy the Court that no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the conclusion as to those verdicts. In determining that question, it is important to bear in mind that, as in the present case, the jury is ordinarily directed that it must give separate consideration to each charge. That direction is regularly accompanied in this State ― and it was in this case ― by a specific direction that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection, or non-acceptance, of a particular aspect of a witness’s evidence does not necessarily mean that the jury must accept or reject the whole of that witness’s evidence. In considering whether a jury’s verdicts are inconsistent, it must be borne in mind that, in a criminal trial, particular emphasis is placed on the onus of proof borne by the prosecution, so that an acquittal on a charge on the indictment does not necessarily mean that the jury found the relevant witness’s evidence, on that charge, to be unsatisfactory or untruthful. In MFA, Gleeson CJ, Hayne and Callinan JJ stated: A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. ... factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. It follows, therefore, that the acquittal by a jury of an accused person on one charge does not necessarily reflect a view that the jury considered the complainant to be untruthful or unreliable. ... It follows, from the foregoing, that an applicant who relies on inconsistencies as a ground of appeal, or as an aspect of a ground of appeal, bears a heavy onus of persuasion.

39 All five charges involving DB turned upon the evidence of the complainant. They were all said to involve offences committed on the same day, within a relatively short period. The question that the applicant poses is, how could the jury have been satisfied beyond reasonable doubt of his guilt on charges 4 and 5, but have entertained a doubt as to his guilt on charges 1, 2 and 3?

40 The defence to all five of these charges was that DB had either made up the allegations, or that his evidence was so unreliable that it was not properly open to the jury to accept his account of what had occurred.

41 The applicant submitted that findings as to DB’s credibility, and reliability, could not be separated in such a way that his evidence could be accepted in relation to charges 4 and 5, but not charges 1, 2 and 3. It was said that DB’s evidence was of a single occasion on which he was met by the applicant, taken to the local shops, and brought back to the facility. His evidence as to what occurred in the shower block was closely connected in time, place and sequence to what was said to have occurred in the caravan. His evidence was effectively indivisible. There was no differentiation in terms of the presence or absence of confirmatory evidence, there being none. The defence case was simple. DB had invented his entire account in order to gain compensation for mistreatment at the institution. In doing so, he was aware of the earlier police investigation, arising from the complaints made by MZ in 1996, which, as we have said, did not result in any prosecution.

42 The applicant accepted that there were factors associated with DB’s evidence regarding the incidents that had allegedly taken place in the shower area that might have cast some doubt upon DB’s reliability in that regard. PZ’s evidence regarding the layout of the shower room differed somewhat from DB’s description of that area. The applicant submitted, in his written case, however, that this would not explain why the jury were not prepared to act on DB’s evidence in relation to charges 1, 2 and 3, but were prepared to do so in relation to charges 4 and 5. Nor, according to the applicant, did the tendency evidence led afford a logical basis upon which to differentiate between those charges that led to conviction, and those that resulted in acquittal. It was submitted that the verdicts in this case suggested that the jury may impermissibly have compromised.

43 The applicant referred to Mackenzie v The Queen[3] in support of the contention that the different verdicts in this case were factually inconsistent, and could not stand together. He also referred to MFA v The Queen,[4] as well as Jones v The Queen,[5] R v PMT[6] and Destanovic v The Queen.[7]

Respondent’s submissions

44 The respondent submitted that an appellate court should be cautious when evaluating a complaint of inconsistent verdicts based upon there having been a conviction of only some charges involving a single complainant. The jury were entitled to accept some parts of the complainant’s evidence, and yet fail to be satisfied beyond reasonable doubt of others. Often, this will occur when part of the complainant’s evidence is corroborated, and other parts are not. It can also occur when the complainant is able to be more specific in relation to some charges than others. Everything must depend upon the quality of the evidence led as to the different episodes.

45 The respondent submitted that upon careful analysis of DB’s evidence, it was readily understandable why the jury may have entertained a reasonable doubt about the shower episode, but no such doubt about the caravan episode.

46 The first point to note was that DB’s evidence in chief differed somewhat from the way in which the prosecutor had opened to the jury what he expected DB to say. In the opening, it was put that the applicant had placed his hand onto DB’s penis and masturbated him. This was followed by the applicant having taken DB’s hand and placed it on his own penis, with some instruction as to how to go about the act of masturbation. With regard to the applicant having committed the offence charged as indecent assault under charge 3, the applicant was supposed to have told DB that it was okay and that it was all ‘a game’.

47 However, in his evidence in chief, DB transposed charges 1 and 2, saying that the applicant first put DB’s hand onto his own penis, rather than vice versa. DB adhered to that account under cross-examination. It was submitted, in the respondent’s written case, that this discrepancy might provide a partial explanation as to how the jury were able to entertain a reasonable doubt as to the shower area charges, while being satisfied of the applicant’s guilt on the caravan charges. It is fair to say that senior counsel for the respondent, in oral argument, very fairly accepted that this particular submission, in the written case, would not carry great weight.

48 The respondent next submitted that DB’s evidence to the effect that the shower incidents went on for some 30 minutes or so must have seemed improbable to the jury. It was clear that the shower area was accessible to all of the boys residing at the facility.

49 In addition, at one point, DB stated that the applicant was ‘just fondling’ his penis. This was said to be a significant departure from the prosecutor’s opening to the effect that the applicant had been ‘masturbating’ him.

50 It was further said that DB had volunteered for the first time in cross-examination that the applicant had been kneeling behind him in respect of the act of placing his penis between DB’s legs. That was said to cast some doubt upon DB’s reliability.

51 Finally, DB was challenged over the layout of the shower room. He said it had open showers, but there was other evidence from PZ to the effect that the showers were partitioned.

52 The respondent submitted that the evidence given in support of charges 4 and 5 was more compelling, and therefore, stood in stark contrast to that given in relation to the shower incidents. Unlike DB’s evidence in relation to the shower area offending, his evidence regarding the caravan episode accorded closely with the prosecution opening.

53 While the shower episode charges, and the caravan offences were closely connected in time, there was, at least, some gap between them. This was not a single indivisible course of offending. In addition, it was submitted that the act of buggery in the caravan was likely to have left a more indelible impression upon the mind of a young boy than what was said to have occurred in the shower area.

54 Finally, it was submitted that this jury had shown themselves to be particularly attentive, and aware of the need to consider the evidence separately admissible in relation to each charge. The jury’s decision to acquit on charge 9, but convict on the alternative charge 18, by reason it would seem of DB’s differing accounts of whether he had actually been penetrated on the occasion in question, made it unlikely that they would have disregarded the judge’s separate consideration direction, and simply compromised in dealing with the charges concerning DB.

Analysis regarding the appeal against conviction

55 In our view, the applicant’s convictions on charges 4 and 5 are not factually inconsistent with his acquittals on charges 1, 2 and 3.

56 There were three aspects of the complainant’s evidence which were capable of creating a reasonable doubt concerning his account relating to the shower block offending that gave rise to charges 1, 2 and 3. These were:

(1) The complainant’s account of being naked in the shower block, with the applicant in the middle of the day, in what he contended was an open area, was improbable. There were two reasons for this. First, given that the applicant used his caravan as the primary site in which he abused his victims, it was surely implausible that he would have taken the extreme risk of being found naked in the shower block with the complainant, openly committing the offences alleged. Secondly, on DB’s own account, the sequence of events involved his having been taken by the applicant to the shops where takeaway food was purchased, and then consumed in the applicant’s caravan. The next step was DB being in the shower area with the applicant, and being sexually abused. Thereafter, DB returned to the caravan with the applicant, where he was further abused. The respondent submitted that the jury might well have found it difficult to accept that DB’s account of this sequence of events was reliable, since if the applicant wanted to sexually abuse him, there was no reason to go from the caravan, subsequently to the shower area, and then back to the caravan. The abuse could have been committed on the first occasion that they were together in the caravan.

(2) A number of features relating to the complainant’s description of the events the subject of charges 1, 2 and 3 were said, by the respondent, to be questionable. They were as follows:

(a) It was noted that in respect of charge 3, DB stated in examination in chief that he was facing away from the applicant when the applicant rubbed his penis between DB’s legs. DB then added to that response, and varied it, by stating that the applicant was rubbing his penis ‘between [DB’s] backside’.

(b) In cross-examination, DB could not recollect how he came to be facing away from the applicant during this relevant act. Furthermore, he stated that the applicant’s penis was not rubbing between the cheeks of his anus, but rather between his legs. He also volunteered, for the first time in cross-examination that the applicant was kneeling behind him during this act. As defence counsel pointed out to DB in cross-examination, this created a height difference and thus rendered the commission of this particular act implausible, at least in a physical sense.

(c) Less cogently, the respondent submitted that it was odd that DB could not remember where he put his clothes on after the shower episode. Yet he was aware that he must have been fully clothed upon their return to the caravan.

(3) Relevantly, DB’s account that the applicant and he were together in the shower block, in the middle of the day, was entirely out of context, and out of sequence, with the balance of what was otherwise an unchallenged account given by the applicant in his evidence. DB described how the applicant and he had gone to some shops, purchased a hamburger, and then returned to the caravan to have their meal. According to DB, his next recollection was that, for some unexplained reason, he found himself naked in the shower block with the applicant, and being abused by him. He had no recollection of how he got there, or why. His next recollection was having been back in the caravan with the applicant, and being abused by him.

57 Each of the three main matters set out above was specific to the credibility and reliability of the complainant with respect to that part of his evidence that related to charges 1, 2 and 3. Those matters did not relate directly to the events that DB described that were the subject of charges 4 and 5, except that, indirectly, they may have reflected on DB’s overall credibility and reliability.

58 On the other hand, DB’s evidence regarding the abuse in the caravan gained significant support from the evidence of MZ and PZ, which was plainly accepted by the jury. MZ’s evidence was that the principal place where he was abused was in the caravan. He gave evidence as to other abuse that occurred in the cottage, and in the toilet block, but far and away, the greater part of the offending against him was said to have occurred in the caravan.

59 PZ’s evidence was even stronger in that regard. All of the offending against him took place in the caravan. In particular, on a number of occasions, the applicant used a form of persuasion (coercion) to induce PZ to enter the caravan for the purposes of abuse.

60 The prosecution gave a notice of tendency evidence, which was the subject of a direction by the judge, in his charge, to the jury. The jury were therefore entitled to rely on the evidence of PZ and MZ as establishing that the applicant had a tendency to have a sexual interest in young boys, under his care, and more specifically, to act on that interest.[8] The jury were entitled to conclude, on the evidence of PZ and MZ that the applicant’s primary method of carrying out that abuse was to use his caravan, in conjunction with various forms of grooming. The abuse described by DB, that was the subject of charges 4 and 5, was consistent, to that extent, with the abuse described by MZ and PZ in their evidence. In particular, DB’s evidence was similar to that of MZ concerning the alternative charge to charge 9, charge 18 and charge 10, and also similar to PZ’s evidence concerning charges 15, 16 and 17.

61 For those reasons, the applicant has failed to demonstrate that the guilty verdicts of the jury, on charges 4 and 5, were inconsistent with the verdicts of acquittal on charges 1, 2 and 3. On the contrary, the different verdicts can be readily explained and understood as resting on a rational footing. They demonstrated a careful approach by the jury to the evidence that was relevant to each particular charge.

62 We might add that, as submitted by senior counsel for the respondent, that approach, by the jury, is also illustrated by its verdict of acquittal of the applicant on charge 9, and its verdict convicting him on the alternative charge 18. The jury’s verdicts, on those two charges, plainly reflected the close and careful attention given by them to the detail of the different evidence given by MZ, in evidence in chief, cross-examination and re-examination, relating to that aspect of the incident in which the offences, comprising charges 8, 10 and 18, were committed.

63 Accordingly, leave to appeal against conviction must be refused.

The appeal against sentence

Applicant’s submissions

64 The applicant first submitted, in support of ground 1, that the total effective sentence of some 15 years and 10 months’ imprisonment was more severe than sentences imposed in comparable non-incest cases of historical sexual offending against children. Accordingly, that total effective sentence was disproportionate to his overall criminality, and was ‘crushing’ having regard to his age and ill-health.[9]

65 In addition, it was said that the orders for cumulation had been made without proper regard to the fact that some of the offences had been committed in close temporal proximity to others, which should have resulted in greater concurrency.

66 It was submitted that although the applicant had offended against some five complainants, he had ‘only’ committed one offence of actual buggery. In addition, he fell to be sentenced as a person with no prior criminal convictions. Moreover, the offending in question had occurred over a period of only some months, and was therefore far less protracted than that seen in many cases of historical sexual offending against children.

67 In relation to the submission that both the total effective sentence and the non-parole period were ‘crushing’, it was noted that the applicant’s health was poor, although there was nothing to suggest that his life expectancy would be particularly reduced for that reason. More specifically, he suffered back, neck and shoulder pain due to a degenerative spinal condition. He had also had a stroke, and suffered from hypertension.

68 Finally, and most significantly in relation to this ground, there was some criticism of a structural kind based upon the orders for cumulation made on each charge of indecent assault. It was noted that these orders were of similar duration, eight of them being for 6 months, four being for 4 months, and three being for 12 months. That was so despite the fact that a number of them involved what might be described as standalone offending, while others were part and parcel of a series of closely related acts. In other words, so it was submitted, the judge had erred by adopting too broad a brush approach to cumulation. This was said to constitute specific error, warranting the intervention of this Court.

69 A number of these same points were raised in support of ground 2, manifest excess. In the applicant’s written case, our attention was drawn to a number of examples of sentences imposed in what were suggested to be comparable cases. The cases most particularly relied upon were DPP v Houston, [10] Hemanus (a pseudonym) v The Queen,[11] and NR v The Queen.[12]

70 In none of those cases was a total effective sentence of anything like the 15 years and 10 months that the applicant received imposed. That was despite the fact that they were said to be useful comparators.

71 Returning to the present case, it was noted, in relation to delay, that the applicant had been charged some 20 or so years earlier in relation to the offending against MZ and PZ. The applicant was interviewed in relation to those offences in January 1997. For whatever reason, the prosecution was not authorised until October of that year. The committal proceeding took place in May 1998. The applicant spent a period of 16 days in custody from mid-February 1998 until March 1998. All in all, there was a delay of 14 months between the police interview and the committal hearing.

72 As it happened, the charges were the subject of a nolle prosequi in late 1998. They were finally revived in late 2017. Accordingly, the applicant had endured the stress and anxiety of the earlier committal, and trial proceedings.

73 In broad terms, it was submitted that the prospect of charges arising from his work at Sutherland Homes had cast a shadow over the applicant’s life for at least some two decades.

Respondent’s submissions

74 The respondent submitted that the practical effect of each proposed ground of appeal against sentence was the same, namely, that the individual sentences imposed, the total effective sentence, and the non-parole period were all manifestly excessive. That was so, despite the fact that ground 1 appeared to be couched in the language of specific error.

75 It was submitted that the impact of the offending upon the victims in this case had been profound. The victims spoke of having had their childhood stolen away from them, their loss of dignity, the betrayal of trust, and the mental and emotional pain they had sustained. There was a general inability to form trusting relationships with other male persons.

76 Although the applicant had no previous convictions, there were several relevant subsequent convictions for sexual offences. These were recorded against him in 1990, 1993 and 1998.[13]

77 In addition, it was submitted that the applicant fell to be sentenced as a ‘serious sexual offender’ in respect of all charges, other than charges 1 and 2 on indictment D10364339.4.

78 It was submitted that the applicant’s culpability was great, as was the gravity of the offending. Three of the indecent assault convictions involved actual penetration, though they could not be charged as such given the law as it stood at the time of the offending. There was a gross breach of trust, as well as an abuse of power. The children were all particularly young, with one of them being only eight or nine years of age when he was anally penetrated. The victims were easy targets, and the offending was persistent and ongoing. There was also an element of grooming, through the use of sweets and drinks.

79 The applicant ran heavily contested trials. These included various interlocutory appeals. He had shown no remorse whatever. Nor had he exhibited any insight into the gravity of his offending. He was assessed by Forensicare as not suffering from any mental illness or personality disorder, but as posing a ‘high risk’ of reoffending in the context of exposure offences, though not contact offences of the kind presently under consideration.

80 The respondent challenged the applicant’s reliance upon the cases said to be relevant comparators. For example, it was noted that in Houston, there were three victims rather than five. In Hermanous, there was but a single victim, the daughter of the offender. There were only 3 charges. In NR, there was a breach of trust but, so it was submitted, not on the same scale as in the present case.

81 Put simply, the respondent submitted that the sentences imposed were all, individually and collectively, within range, and that leave to appeal should be refused.

Analysis regarding the appeal against sentence

82 The principal issues raised in respect of the sentences are the orders for cumulation and the total effective sentence. As previously indicated, it is contended that, by reason of the manner in which the sentences were cumulated, the total effective sentence was ‘crushing’.

83 In Yates, the Full Court of this Court observed that a sentence could be regarded as ‘crushing’ if the effect of that sentence was to be ‘the destruction of any reasonable expectation of useful life after release’.[14]

84 In our view, it is clear that the offending in this case was particularly serious. The victims were five young boys, all of whom were in State care. As the sentencing judge pointed out, the children were vulnerable. The applicant was placed in a position of trust, which he grossly abused. The offending was quite depraved.

85 The applicant preyed on vulnerable targets. Further, as his Honour noted, in respect of at least three of the complainants, the applicant had enticed and groomed them. With PZ, he initially engaged in grooming, and then used threats against him as a means of inducing his cooperation. He knew that PZ’s cottage parents were particularly brutal, and he threatened PZ that if he did not cooperate, he would report him to his cottage parents. The applicant’s conduct was not spontaneous. As his Honour found, it was ‘planned, predatory and persistent’.[15]

86 The judge accepted that there were some mitigating circumstances. In respect of the offending against PZ and MZ, there was a 20 year delay in the charges being brought. At the time of sentence, the applicant was aged 70 and suffered significant physical impairment, so much so that he now needed the assistance of a wheelchair.

87 In our opinion, it cannot be contended that the individual sentences imposed were excessive. The sentences on charges 10 and 11 might be thought to be relatively severe, but they could not be said to be manifestly excessive, given the gravity of the offending in each case.

88 The applicant fell to be sentenced as a serious sexual offender.[16] In the circumstances of this case, that description amply fitted both his conduct and character. Individually, the orders for cumulation could be said to be quite modest. That is so in respect of charges involving standalone offending as well as those involving a series of closely related acts. Contrary to the submissions of the applicant, we do not consider that they reflected nothing more than a mechanistic approach by the judge to cumulation.

89 The total effective sentence of 15 years and 10 months’ imprisonment is undoubtedly severe for an offender sentenced at the age of 70, in poor health, and with such mitigating factors as the applicant was able to call in aid in this case. In that sense, the sentence can perhaps properly be described as ‘crushing’, but that is by no means dispositive of this application.

90 Where — as in this case — an elderly offender comes to be sentenced for serious offences, it is inevitable that the sentence may have the effect that the offender may not have a realistic prospect of any meaningful life after he or she has completed serving a term of imprisonment that is commensurate with the gravity of the offending. The Courts have emphasised that while that consideration may be relevant, nevertheless it does not have the effect that the sentencing Court should, by reason of that consideration alone, refrain from imposing an appropriate sentence for the offences that have been committed.

91 In R v Vaitos,[17] the applicant, who was aged 32, was sentenced to a total effective sentence of 28 years’ imprisonment after being convicted of 10 counts of rape, one count of attempted rape, and three counts of aggravated burglary. The Court of Criminal Appeal dismissed the application for leave to appeal against conviction and sentence.

92 In rejecting the submission that the sentence should be set aside on the basis that it was ‘crushing’, O’Bryan J stated:

I have some difficulty appreciating the concept that a richly deserved sentence, not manifestly excessive, should be disturbed because the person upon whom the sentence is imposed may feel crushed by it. It is quite true that the applicant has to face a very long term of imprisonment before he will be released and because he is a relatively young man, many of the best years of his life will be spent in custody. However, from the community point of view, his detention for a very substantial period is necessary to protect females from his criminal behaviour. The applicant’s long period of detention is, therefore, necessary in the community interest, notwithstanding the effect upon the applicant.[18]

93 In a similar vein, Murphy J stated:

It was submitted that the sentence is a ‘crushing’ one. In my view, whatever epithet is properly to be applied to it, it does no more than meet the crimes committed, and I see not the slightest reason to interfere with it.[19]

94 Similarly, in R v Gregory,[20] Winneke P (who dissented in the result) stated:

Furthermore, even if the sentences can be regarded as ‘crushing’, in the sense of destroying prospects of usual life after release, I am not persuaded that, in the circumstances of this case, they are manifestly excessive. The appellant’s counsel acknowledged during the hearing of the plea that his client ‘expected a significant gaol sentence’ which would leave ‘no real prospect that he is going to have many pieces to pick up after he is released. His life is very much at an end’. That submission seems to me to reflect the reality of the situation where a 53 year old man commits crimes as serious as these. Those who commit such crimes at an advanced age cannot expect to escape the consequences of what they have done simply because of their age. Age, in many cases, will be a relevant sentencing consideration, whether it be youthful or advanced. But age, alone, cannot be permitted to justify the imposition of an unacceptably inappropriate sentence. As Crockett J said in R v Crowley & Garner: It does not follow that every sentence which justifiably deserves the epithet [i.e. ‘crushing’] must on that account, and on that account alone, be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited his right to any such hope or expectation. This, I think, is such a case.[21]

95 The total effective sentence in the present case was severe, but it did not cross the threshold into manifest excess. As emphasised, the offending was particularly serious. Unsurprisingly, it had a traumatic, if not catastrophic, effect on the victims. It offended against the most basic values of our society. The principles of denunciation and general deterrence must be given significant weight in cases such as this. It is the responsibility of the courts, by imposing appropriate sentences, to reflect the values of the community.

96 The applicant’s offending was calculated and persistent. It inflicted grave and lasting harm on each of the five victims. The courts must make it plain that any person charged with and convicted of such offending will lose his or her liberty for a very long period of time.

97 In the end, we are not persuaded that there was specific error of a kind that would vitiate this sentence. Nor are we persuaded that the sentence was wholly outside the range reasonably available to the sentencing judge.

Conclusion

98 Accordingly, both the applications for leave to appeal against conviction and sentence will be refused.

[1] The applicant was acquitted on charges 1, 2, 3 and 9 on the second indictment.

[2] [2019] VSCA 52, 21–4 [74]–[79] (citations omitted).

[3] (1996) 190 CLR 348.

[4] [2002] HCA 53; (2002) 213 CLR 606, 631–2 [87].

[5] (1997) 191 CLR 439.

[6] [2003] VSCA 200; (2003) 8 VR 50.

[7] [2015] VSCA 113; (2015) 49 VR 276.

[8] See Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187; McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13.

[9] R v Yates [1985] VicRp 3; [1985] VR 41.

[10] [2016] VCC 638 (‘Houston’) (total effective sentence: 12 years and 9 months, NPP: 8 years). This was a sentence imposed by Chief Judge Kidd in respect of historical sexual abuse on the part of a Christian Brother, involving some six victims. The offender pleaded guilty to some charges, and not guilty to others. The offending involved acts of both buggery and indecent assault.

[11] [2015] VSCA 304 (‘Hermanus’) (total effective sentence: 7 years, NPP: 4 years and 6 months). The original sentence was 9 years, with a non-parole period of 6 years, reduced on appeal. The applicant pleaded not guilty. The offending included charges of buggery and indecent assault upon the applicant’s natural daughter, and went back to the mid-1970s. It should be noted, however, that this case was decided before the High Court determined DPP v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37 and the subsequent decision of DPP v Dalgliesh [2017] VSCA 360 in this Court. As a result, sentences for incest have significantly increased.

[12] [2013] VSCA 166 (‘NR’) (total effective sentence: 9 years and 5 months, NPP: 7 years). The applicant pleaded not guilty. There were three victims of his offending. The charges included buggery (dating back to the early 1970s), and sexual penetration of a child under 16, as well as indecent acts. The individual sentences, and the total effective sentence were held to be within range.

[13] DPP v Gill (Unreported, County Court of Victoria, Judge Allen, 8 May 2018) [29] (‘Reasons’). In 1990, the applicant was convicted on five charges of indecent assault. In 1993, the applicant was convicted of wilful and obscene exposure. In 1998, the applicant was again convicted of wilful and obscene exposure. In that same year, the applicant was also convicted of loitering as a sex offender.

[14] R v Yates [1985] VicRp 3; [1985] VR 41, 48. See also, R v Beck [2005] VSCA 11, [19] (Nettle JA).

[15] Reasons [45].

[16] Sentencing Act 1991 s 6B(2).

[17] (1981) 4 A Crim R 238.

[18] Ibid, 301.

[19] Ibid, 276.

[20] [2000] VSCA 212.

[21] Ibid, [21] (citations omitted); see also DPP v Mirik [2007] VSCA 150 [49]; R v AMP [2010] VSCA 48 [54]; TR v The Queen [2012] VSCA 166 [63]; Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354, 370–371 [56]–[57].