The Queen v S[1999] QCA 311

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 462 of 1998

Brisbane

THE QUEEN

v.

S

(Applicant)Respondents

McMurdo P

Pincus JA

Atkinson J

Judgment delivered 10 August 1999

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 10 August 1999

1. I have had the advantage of reading the reasons for judgment of Atkinson J who has set out the facts of this case.  I agree that the appeal against conviction should be dismissed.

2. The appellant was charged with two counts of unlawful anal intercourse of a child under 12 years with a circumstance of aggravation (counts 1 and 3); two counts of unlawful anal intercourse of a child under 12 years (counts 2 and 4); one count of maintaining a sexual relationship with a child under 16 years with circumstances of aggravation (count 5) and alternatively a further count of maintaining a sexual relationship with a child under 16 years with a circumstance of aggravation (count 6).  The complainant was 6 years old at the time of the offences and nine at the time of trial.  The particulars provided were as follows.

3. Count 1: Between 28 February 1996 and 3 August 1996 when the appellant was living with the complainant's family at [near Ipswich], the appellant was babysitting the complainant whilst her parents were away and he said he had a game to play with her. They then went into his bedroom where the appellant had anal intercourse with her. On this occasion the appellant put his penis into the girl's mouth and "weed" in her mouth.

4. Count 2: Between 28 February 1996 and the 3 August 1996 when the appellant was living with the complainant's family [near Ipswich], the appellant had her stand on a chair, pulled her pants down and then sodomised her in the garage of the home.

5. Count 3: Between the 28 February 1996 and 3 August 1996 [near Ipswich] where the appellant was living with the complainant's family the appellant told the complainant's brother J to put his penis into his sister and the appellant sodomised the complainant.

6. Count 4: Between the 31 July 1996 and the 1 June 1997 the appellant was living with the complainant's family at B the appellant came into her bedroom and sodomised her.

7. If the jury were satisfied there was an indecent touching but were not satisfied it amounted to penetration, an alternative verdict to each of counts 1 to 4, that of indecent treatment of a child was open, by way of s 578(1A) of the Criminal Code.

8. Count 5: Maintaining an unlawful relationship of a sexual nature with circumstances of aggravation between 28 February and 1 June 1997 was relied upon by the Crown if the jury were satisfied that the three or more acts upon which the Crown relied to establish the offence under s 229B(2) of the Criminal Code were acts of unlawful anal intercourse.  If the jury were not satisfied that there were three or more acts of unlawful anal intercourse but were satisfied there were three or more acts of indecent treatment of a child the alternative charge in count 6 (maintaining a sexual relationship with a child with a circumstance of aggravation) was open.

9. His Honour assisted the jury to understand their necessarily complex task by providing them with sheets setting out the alternative verdicts. There is rightly no complaint in respect of this sheet which was a useful aid for the jury.

10. The sole ground of appeal against the conviction is that the "conviction was unreasonable and cannot be supported having regard to the evidence, therefore resulting in a miscarriage of justice".

11. The appellant relied upon the evidence of the complainant's brother J and the lack of other evidence supporting the complainant's evidence as particulars of this ground of appeal.  J's evidence is set out in the reasons of Atkinson J and I will not repeat it.

12. In summing up to the jury his Honour dealt carefully with the evidence of J and the significant change to his evidence in cross-examination, telling them that this change

"... may cause you to scrutinise carefully his evidence. 

You may find such a change alarming, one which causes you to doubt the witness's veracity or truthfulness. On the other hand you may think that it is just a demonstration of the ordinary weaknesses of the human mind particularly a child.  It is a matter for you.

You are entitled to have regard to these matters when assessing the reliability of the witness's evidence. You may think that a statement made closer to the events is more likely to be accurate than a description given later perhaps in Court under different circumstances. They are all matters for you to consider."

13. In the course of summing up the Crown case to the jury the judge said that the prosecutor:

"... suggested that although you may find J's evidence confusing that he did agree that it happened initially and posed the question to you: 'Was he intimidated by the Court?'.

The Crown concede that the case really turns upon the complainant's evidence ... ".

14. When summing up the defence case for the jury his Honour said:

"Mr Clifford addressed you and referred to J's evidence, that a 10 year old can understand adult themes and that his evidence was totally unbelievable.  He submitted to you that J knew that the sexual acts with his sister were wrong and that he admitted that he never saw the accused with 'his dick in his sister's bum' and it is your duty to look at that evidence and that really in this case it is one child's unsupported evidence. 

The complainant testified that it might come out that she was involved with her brother and that that was a reason why she may have made up this involvement of the accused.  Was the story concocted?  It was submitted to you that J's evidence weakens the Crown case because of his evidence that these things never happened with the accused as suggested but that he admitted that things happened with his sister."

15. His Honour correctly told the jury that they may reject all or part of a witness's evidence.

16. His Honour pointed out inconsistencies in the Crown case, most importantly that in cross-examination the complainant's brother J gave evidence inconsistent with his s 93A Evidence Act statement to police as to count 3. His Honour pointed out to the jury inconsistencies between the complainant's evidence and J's evidence.  He told the jury to scrutinise the complainant's evidence with great care and to exercise caution before convicting the appellant on her evidence alone.

17. J's evidence as it was given was confusing.  He was only 10 years old and was giving evidence about a matter of which he was no doubt ashamed and embarrassed.  J's answers are generally monosyllabic and, as Atkinson J points out, may be an example of gratuitous concurrence.  A jury is best placed to decide whether a child in those circumstances is intimidated and ashamed so that he agrees with whatever is put to him or whether his evidence is false, wholly or in part, or whether it is too unreliable to act upon one way or the other. If they rejected his evidence as unreliable, the most probable course, there remained the evidence of the complainant on which they could act if they were satisfied of its truth beyond reasonable doubt,^[1] despite J's evidence.

18. No medical evidence was given supporting the complainant, a fact which seems surprising until the paediatrician's evidence is considered.  Paediatrician Dr Richard Roylance examined the complainant on the 9 March 1998, approximately two years after the offences were alleged to have occurred and about 5 weeks after the complainant gave her statement to the police.  He said:

"It is more common than not even if we know that children have had some sort of penetrative event in the anus, some sort of intercourse in the anus, more common than not to find no abnormal findings ... Adult experience that the size of a male penis and the size of a bowel motion in a child this age are almost the same and this is an organ that's designed to be lubricated et cetera so that it is not ultimately surprising to think that a year after an event you're not going to find any significant evidence in the form of scars and if you're trying to conceptualise what this area's like people who have had babies would know this area heals very well and the mucus membranes around the area are very much like those in your mouth. So everyone in their adult experience would have had significant blows to their mouth with cut - in the gums and bleeding, et cetera and then even several days much less months or weeks later you don't find any ongoing scarring or marks.

Now, the suggestion in this case is that the anal penetration occurred, perhaps, as far back as when the girl was in grade 1 and was repeated with a degree of frequency.  Does that, or do that those indications cause you to change your views or modify them or can you assist us?

Again, without a detailed history it is difficult to comment on such things. It would make it a little more less, more likely or less likely for physical evidence. The use of lubrication, the relaxation of the child, et cetera would be, again, something that would make this area more likely to open up and not discard, but even at that age of six and even with that history, the majority of ages that we examine in cases where we know it happened because the perpetrators have told us, the majority of those findings are that there's nothing abnormal to find looking at that bottom a year later."

19. In cross-examination he added:

"... we know from the work that we've done that touching and penetration between the labia with the penis may not produce any changes to the hymen and I have seen the literature, spoken to colleagues and have personal experience of penetrative intercourse into the vagina without necessarily leaving any hymenal marks". 

The complainant's vaginal opening, clitoris, urethra, vagina itself and hymen were normal and no abnormalities or scarring were noted on examination of her anus. In the light of the medical evidence the lack of other evidence supporting the complainant is neither unusual nor surprising.

20. The appellant did not give or call evidence.

21. The learned trial judge gave the jury an appropriate direction as to the use to be made of evidence of uncharged sexual conduct between the complainant child and the appellant and told them if they had doubts about her evidence as to uncharged acts they would be entitled to take those doubts into account in assessing her credibility on the counts charged in the indictment.

22. His Honour told the jury that the lack of fresh complaint in this case may show inconsistency of conduct on the part of the complainant child and was relevant to her credibility as a witness, whilst also pointing out that her explanation was that she was shy.  His Honour reminded the jury that the complainant was only eight years of age at the time of making the complaint to police in the statement which constituted her evidence in chief under s 93A Evidence Act 1977 and was six at the time of the alleged offences.

23. His Honour warned the jury in respect of count 1 that the complainant had given conflicting evidence as to whether or not her father was in the house at the time; whilst it was a matter for them, it would be unlikely that they would find the appellant guilty in respect of that circumstance of aggravation.  The jury clearly understood this distinction because in due course they returned a verdict in respect of count 1 of not guilty to unlawful anal intercourse with a child under 12 with a circumstance of aggravation but guilty to unlawful anal intercourse with a child under 12 years.^[2]

24. In this case the jury had the difficult task of having to decide whether the complainant's evidence on each count was believable beyond reasonable doubt. Her evidence reads convincingly in the record.  In discussions with counsel in the absence of the jury, his Honour referred to her evidence as "exceptional".  The judge's summing up was careful, clear and fair: he dealt fully with the problems arising out of J's evidence and warned them to scrutinize the complainant's evidence carefully.  The jury appeared to understand the judge's summing up in that their verdict in respect of count 1 was consistent with his instructions to them on that count.

25. After reviewing the whole of the evidence and the learned trial judge's summing up, I am satisfied it was reasonable for the jury to accept the complainant's evidence beyond reasonable doubt, despite the evidence of the complainant's brother J. In reaching this conclusion it is relevant to take into account that there was no evidence, apart from some of J's confusing evidence in respect of  count 3, that contradicted the complainant's evidence.  The jury could reasonably have rejected J's evidence as unreliable and after carefully examining the complainant's evidence been satisfied of the guilt of the appellant beyond reasonable doubt. I agree with Atkinson J that the appeal against conviction should be dismissed.

26. As to sentence I agree generally with what has been said by Atkinson J and only wish to refer to the following matter. The jury returned verdicts of guilty to 4 counts of unlawful anal intercourse with a child under 12 years (punishable by life imprisonment).  In respect of count 3 the applicant was also convicted of the circumstance of aggravation that the complainant was for the time being under his care.  In addition he was found guilty of maintaining a sexual relationship with circumstances of aggravation (punishable by life imprisonment).  His Honour sentenced the appellant to 10 years imprisonment on each count.

27. The potential problem of double punishment for the same acts arising out of the imposition of these sentences raised in Pearce v  The Queen^[3] would seem to be solved by s 229B(6) and (7) of the Criminal Code which provide:

"(6)A person may be charged in one indictment with an offence defined in this section and with any other offence of a sexual nature alleged to have been committed by him or her in the course of the relationship in issue in the first mentioned offence and he or she may be convicted of and punished for any or all of the offences so charged.

(7)However, where the offender is sentenced to a term of imprisonment for the first mentioned offence and a term of imprisonment for the other offence an order shall not be made directing that one of those sentences take effect from the expiration of the deprivation of liberty for the other."

28. In Pearce the majority, McHugh, Hayne and Callinan JJ noted that the general principle, that it is wrong to punish an offender twice for the commission of acts which constitute the same elements in two or more offences, must yield to any clear contrary legislative intention.^[4] A clear contrary legislative intention appears to be stated in s 229B(6) and (7).

29. Although the matter was not raised at the appeal and consequently not argued, my preliminary view is that despite Pearce there is no difficulty with the imposition of concurrent sentences in respect of counts 1 to 4 and also count 5 because of s 229B(6) and (7) of the Criminal Code.

30. I agree with Pincus JA that R v Mason and Saunders^[5] which held that Part 9A of the  Penalties and Sentences Act 1992 does not apply to offences which were committed prior to its commencement on 1 July 1997, should be followed.  That principle is not affected by the decision of this Court in R v Truong^[6] which held that s 9 in Part 2 of the Penalties & Sentences Act 1992, both before and after the 1997 amendment, is purely procedural and therefore has application to sentences imposed after the 1997 amendment regardless of when the offences occurred.

31. It follows that this applicant will be eligible for release on parole after serving five years of the ten year sentence imposed upon him.

32. I agree with Atkinson J that the sentences imposed by the primary judge were not manifestly excessive and I agree with the orders she proposes.

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 10 August 1999

1. I have read the reasons of the President and those of Atkinson J in which the circumstances of these offences are set out.  I am in general agreement with those reasons, subject to the observations which follow.

2. The principal ground on which the verdict was said to be unsafe was that one of the Crown witnesses, the complainant's brother, gave evidence which was inconsistent with that of the complainant, in important respects.  This caused the judge to express concern about the state of the Crown case, shortly after the brother's evidence was concluded.  As I read the discussion which took place at that point, his Honour was doubtful whether the prosecution should be taken any further.  At one stage the prosecutor said to the judge:

"And if Your Honour is making an intimation to me that the case should not proceed further, then I'd appreciate an opportunity to consider it further and in particular to consider the transcript".

To that the judge responded, according to the record:

"Well, I'm certainly making that intimation which was I put it in those terms, is that the - and it's a matter for you, I don't decided these things".

3. The appellant thus has the advantage that the trial judge was uncertain, to put it at the lowest, whether there was evidence on which the jury could properly convict.  This is so, even taking into account that the judge expressed praise, at that stage and in the course of his sentencing remarks, of the way in which the complainant had given her evidence.  After the discussion to which I have referred, there was an adjournment for nearly an hour, apparently to allow the prosecutor to study the transcript and to decide whether or not he would enter a nolle prosequi.  There is no recorded statement as to the result of the prosecutor's deliberations;  but after the adjournment the trial proceeded.

4. I am, despite the matter just discussed, of opinion that the verdict should not be disturbed as being unsafe.  To upset the verdict, one would have to embrace the principle that if, in a case of this sort, a witness called to give direct support to the complainant's allegations refutes them, in cross-examination, the jury cannot properly convict.  That view of the law does not appear to me to be correct.

5. A second ground for concern about the verdict is that although on the child complainant's version of events she was sodomised many - perhaps 70 - times by the appellant, an adult, medical examination showed no abnormalities.  The doctor who examined the child is a paediatrician with special knowledge of child abuse cases and he said that it is "more common than not to find no abnormal findings" when children have had "some sort of penetrative event in the anus".  This does not oblige a jury to deliberate on the basis that the absence of physical signs of alleged repeated sodomy is a matter of no significance:  see Muram: "Anal and Perianal Abnormalities in Prepubertal Victims of Sexual Abuse" (1989) 161(2) American Journal of Obstetrics & Gynaecology 278, especially at 280.

6. But I agree that the appeal against conviction should be dismissed.

7. The appellant complains of a sentence of 10 years imprisonment.  Although it was argued that the reported decisions will not support so high a sentence, in my opinion that is clearly not so.  It is however necessary to make some comment about the legal effect of the sentence.

8. The offences were committed before, but the trial took place after, 1 July 1997 on which date there came into force the substantive provisions of the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 ("the 1997 amendment").  The question of the retrospective operation of that statute was considered in this Court in Mason and Saunders [1998] 2 Qd R 186, where it was held that the provisions of Part 9A of the 1997 amendment do not apply to such a case as the present - ie one in which the offences were committed before, but the sentencing took place after, 1 July 1997.

9. Then in Truong (CA No 438 of 1998, 19 February 1999) it was held in this Court that a different rule applies to other amendments made by the 1997 amendment, namely those which altered s 9 of the Penalties and Sentences Act 1992.  Truong is inconsistent with what was held in Mallard and White (CA Nos 450 and 452 of 1997, 17 April 1998);  it appears that the Court which decided Truong did not consider Mallard and White.  In Truong a remark was made implying doubt about the correctness of Mason and Saunders;  it was said that the judges would not "at this stage be prepared to depart from the view taken by this Court in Mason and Saunders in relation to the non-application of Part 9A to offences committed before 1 July 1997".

10. In my opinion Mason and Saunders is correct and should be followed.  It is of course very desirable that judges of this Court faithfully follow, and faithfully apply, its previous decisions unless it is clear that such previous decisions are incorrect.  The difficulty in the present case, however, is that Mason and Saunders stands but with, so to speak, a shadow having been cast over it.  The reason why this matters is that if the 1997 amendment catches the sentence imposed here, then by virtue of s 161A of the Penalties and Sentences Act 1992 this applicant is declared to be convicted of a serious violent offence.  The result of that would be that his sentence could not be remitted (s 161D) and he would not be eligible to apply for parole until he had served 8 years of his term:  s 166(1)(c) of the Corrective Services Act 1988.

11. If - wrongly, as I would think - Mason and Saunders were to be overruled, consequent upon the doubt thrown upon it in Truong, there would be ground for arguing that this sentence should be reduced.  The Court has on a number of occasions considered the question whether it is right to adjust sentences to mitigate the effect of provisions made applicable to serious violent offenders by the 1997 amendment:  Robinson (CA No 72 of 1998, 26 May 1998),  Booth (CA No 338 of 1998, 30 March 1999), Vanderwerff (CA No 479 of 1998, 14 May 1999) and Crossley (CA No 477 of 1998, 18 June 1999).  Those authorities are, to put it simply, against adjusting sentences to mitigate the effect of the provisions in the 1997 Amendment Act relating to serious violent offences.  But in McCartney (CA No 13 of 1999, 22 June 1999) in the principal set of reasons it was observed that:

"It is necessary to determine whether the declaration of the applicant as a serious violent offender should be taken into account . . . a sentencing judge must not be blind to the consequences of the sentence being imposed, for the provisions of Part 9A do not destroy the overall sentencing discretion".

What was done there was to choose to impose a sentence at the bottom of the appropriate range accompanied by a declaration, rather than a higher sentence without a declaration, although as the judgment says "[t]here is no doubt but that this was a serious and violent offence".  The case stands for authority for the proposition that it is proper to impose a sentence lower than would otherwise have been imposed, if a declaration is being made.  Accepting that, it would arguably be proper to extend the principle to the present case, if Mason and Saunders were held to be wrong, to reduce the 10 year sentence.

12. This suggests the possibility that the application for leave to appeal against sentence should be adjourned, to await future developments with respect to Mason and Saunders.  For myself, however, I am satisfied that Mason and Saunders is correct and on the basis that this will be held to be so, agree that the application for leave to appeal against sentence should be refused.

13. Since writing the above I have noted that there has been delivered, on 6 August 1999, a joint judgment in Breeze (CA No 105 of 1999) affirming the decision in Mason and Saunders.

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 10 August 1999

1. The appellant was convicted by a jury on three counts of unlawful carnal knowledge by anal intercourse of a child under twelve, one count of unlawful anal intercourse of a child under twelve in his care, and one count of maintaining a sexual relationship with a child under sixteen in the course of which he had carnal knowledge by anal intercourse with a child under twelve in his care.  The offences were alleged to have been committed between 28 February 1996 and 1 June 1997. 

2. He appeals against conviction on the ground that the conviction was unreasonable and cannot be supported, having regard to the evidence resulting in a miscarriage of justice or as his counsel put it,

“... the convictions are unsafe having regard to the evidence of the complainant’s brother J and also to the fact that there was no other evidence, apart from his evidence, to support her evidence, or in effect, to use the conventional term, there was no corroboration of her evidence.”

3. The complainant child was born on 7 November 1989 and so was between six and seven years old at the time of the offences.  She was eight years old when she was interviewed by the police and nine when she gave evidence at the trial.  The Crown case in respect of the first two offences of unlawful carnal knowledge by anal intercourse depended solely upon her evidence but in respect of the third such count it was alleged that her brother J was present and he gave evidence.

4. The evidence-in-chief of both children was substantially constituted by recorded interviews with a police officer which were admitted into evidence under s. 93A of the Evidence Act 1977, which relevantly provides:

“93A(1)In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document (within the meaning of section 3), shall, subject to this part, be admissible as evidence of that fact if -

1. the maker of the statement was a child under the age of 12 years ... at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and

2. the statement was made soon after the occurrence of the fact or was made to a person investigating the matter to which the proceeding relates; and

3. the child ... is available to give evidence in the proceeding.

2. Where a statement made by a child ... is admissible as evidence of the fact pursuant to subsection (1), a statement made to the child ... by any other person -

1. that is also contained in the document containing the statement of the child ...; and

2. in response to which the statement of the child ... was made;

shall, subject to this part, be admissible as evidence if that other person is available to give evidence.

3. Where the statement of a person is admitted as evidence in any proceeding pursuant to subsection (1) or (2), the party tendering the statement shall, if required to do so by any other party to the proceeding, call as a witness the person whose statement is so admitted and the person who recorded the statement.

4. In the application of subsection (3) to a criminal proceeding -

‘party’ means the prosecution or the person charged in the proceeding.”

Both children were cross-examined by defence counsel. 

5. The complainant child was medically examined by a paediatrician who found no evidence of injury to her anus.  He said, in effect, that this was not inconsistent with penetration by a penis having occurred in the past.  His evidence was that it was more common than not to find no injury to the anus even where there has been anal intercourse.

6. The s. 93A statement in respect of the complainant child was an interview she had with a police officer during which she said:

“Well, this man called [S], ... and he was mum’s - mum’s and W’s friend.  And any time when he said - well, any time when it started, well, he was - when I was in the garage out [near Ipswich].  And W went upstairs and my mum was upstairs and they went out and so, we had to - he had to look after us and so he said this little game.  And so, we went inside the game and he said to me first and I - and I didn’t know what he was going to do to me but I thought it was - he was going to, like, play a little game like tell secrets and then he will go out and then he’ll choose the game and we’ll tell the - and he didn’t he - he went in the bedroom with me.  And any time when I went, ‘Ouch.’  J and M and B, they thought I was getting beat up by him but [S] was really sexing me.”

The police officer asked what she meant by his sexing her and she said:

“Well, behind me [S] was and he - behind me and he said - he pulled my pants down and then he grabbed onto me and then he put his dick into my bum.”

She then signified that she knew the difference between her anus and her vagina and that she was referring to her anus when she said her bum.  When she was asked how it felt she said “It hurted.  Just hurting all the way, scraping”.  She was asked what happened after he did that and she said “Well, he kept on doing it.  And then he - he put down the - he asked me to suck his dick and so, I done nothing about it.  So, I had to do it and then he wee’d in my mouth.”  She said she was in grade one at the time.

7. Her evidence was that on another occasion underneath the garage he asked her to stand on a chair because he had hurt her toe and he said he was going to “keep it better” and then he said “stay still” and “he pulled my pants down” and then “he put his dick into my bum.”  She described another incident of anal intercourse when she was lying in her bed at night and that there were many other occasions when he engaged in anal intercourse with her.  On another occasion she said that in his bedroom he “sucked on my vagina”.

8. Another occasion involved the complainant’s brother J.  She gave the following evidence:

“Well, I was in the bedroom with [indistinct] and then he asked J to come in and then J had the - I mean [S] was doing the - putting his dick into my bum then he asked J to push his dick into my wee and so, he did it and then but the thing - oh [S], when it hurts to me, it goes to J and so it’s hurting J too.”

She was asked what J was doing to her and she said “just putting his dick into my wee”.  She said that the appellant was staying with the family and used to look after her and her brothers and sister when her parents were out and that he sexually abused her on many occasions.  Her story was not shaken at all on cross-examination.  She was strong and clear in her evidence and was someone the jury were well able to accept as a witness of truth.

9. The complainant’s brother J is one year older than her.  He gave evidence that the appellant made him put his penis into the complainant’s vagina.  He was asked by the police officer interviewing him what the appellant did while this was happening and he replied:

“[S] put his penis into [his sister’s] bottom.”

She said that it hurt her.  He repeated this evidence when he was first cross-examined.  But he then said that he had been putting his penis into his sister’s vagina on other occasions prior to that when the appellant was not present and then in answer to the question:

“So if I said to you that you never saw [S] with his penis in [his sister’s] bum, would I be right or wrong?”

He answered:

“Right.”

Later the following exchange occurred:

“What I’m saying is, because - what I’m saying, J, is because you told me before that [S] didn’t ask you to do that, I’m just saying to you that you did make it up?-- No.

Because you had been putting your penis in [his sister’s] vagina on your own and you knew it was wrong, and you tried to blame [S] in some way for making you do it, or for doing it.  Do you understand that?-- Yes.

Is that right?-- Yes.”

The prosecutor argued that these answers were examples of gratuitous concurrence^[7] and that J was confused and certainly they are capable of being seen in that light.  The great majority of his responses were monosyllabic and he appeared reluctant in giving his answers.

10. The change in her brother’s evidence meant that the complainant’s evidence was not corroborated.  This does not of itself mean that the conviction is unsafe and unsatisfactory.^[8] Section 632 of the Criminal Code provides:

“(1)A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.

2. On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.

3. Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses.”

This means that the complainant’s evidence if accepted by the jury^[9] would clearly have been sufficient to convict the appellant.  The guileless, clear, straightforward way in which she gave her evidence would no doubt have assisted the jury in their deliberations.  Any weaknesses in the Crown case were exposed by the learned trial judge in his careful summing up to the jury.  It cannot be said in these circumstances that the verdict is unreasonable resulting in a miscarriage of justice^[10] or, as it is often put, unsafe or unsatisfactory.^[11]  It was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the accused.^[12]

11. I have subsequently had the opportunity to read the reasons of the President and Pincus JA with regard to conviction and respectfully agree with them.

Appeal against sentence

12. The appellant was sentenced to ten years imprisonment for counts 1 - 5 each sentence to be served concurrently.  He seeks leave to appeal against his sentence on the ground that it was manifestly excessive.

13. These were of course abhorrent offences against a very young girl which display a gross breach of trust.  The trial judge took into account the fact that the applicant who was 24 years of age at the time of sentencing had then been married for nine months with a one week old son and a step-daughter aged twenty months.  His Honour also took into account that the applicant had a criminal history of unlawful use of motor vehicle with intent to deprive with circumstances of aggravation, where orders of probation, community service and restitution were made.  He was dealt with for a breach of the community service order and fined.  He was also fined for stealing.  In December 1996, he received 9 months imprisonment, suspended for 3 years, for wilfully setting fire to a motor vehicle and unlawful use of a motor vehicle and was ordered to pay $5,750 compensation.  He had no previous offences of a similar nature.

14. The factors which show that the sentences were not manifestly excessive in this case include the youth of the complainant at the time the offences took place, the fact of repeated anal intercourse, the involvement by the applicant of the complainant’s brother in one of the sexual acts so that she suffered double penetration and will continue to suffer a change in her relationship with her brother, the applicant’s lack of remorse, the circumstance that he was a friend of the complainant’s mother and step-father, lived in the same house and from time to time looked after her in her home.  Such serious offences warrant condign sentences.

15. A plea of not guilty does not increase the sentence upon conviction but it does mean that the accused fails to reap the benefit of a timely plea of guilty in reducing his or her sentence.  As the majority of the High Court observed in Siganto v The Queen:^[13]

“A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed.  On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial.  The extent of the mitigation may vary depending on the circumstances of the case.  It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of given evidence.”

16. The learned judge said in his sentencing remarks:

“You have breached the trust that was placed in you and you have shown no remorse by putting the complainant through this trauma of a trial.”

This remark was directed only to remorse and counsel for the applicant did not submit that the learned judge had offended against the principle articulated by the High Court in Siganto.

17. I agree with the reasons of Pincus JA with regard to sentence, in particular that Part 9A of the Penalties and Sentences Act 1992 does not apply retrospectively to offences which were committed prior to its commencement on 1 July 1997.

18. The appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.