R v Gregory[2011] QCA 86

SUPREME COURT OF QUEENSLAND

1. MUIR JA:  Introduction After a trial in the District Court, the appellant was convicted of one count of wilfully exposing a child under 16 to an indecent film (count 1), one count of indecent treatment of a child under 16 (count 2) and a count of rape (count 3).  He was sentenced to four years imprisonment for each of counts 1 and 2 and to eight years imprisonment for count 3.  All sentences were ordered to be served concurrently.  The appellant appeals against his convictions and seeks leave to appeal against his sentence in respect of count 1.  It is desirable to identify the relevant facts before the jury so that the merits of the grounds of appeal can be understood more readily.

The relevant facts

2. On 1 February 2009, the 48 year old appellant saw the 14 year old complainant vandalising a telephone booth in Inala. He told the complainant not to do what he was doing as he would “get into trouble”, and he invited the complainant to his house for coffee. The complainant accompanied him and called a 19 year old female friend, Ms Smith, using the appellant’s mobile phone. Ms Smith arrived and all three played cards before driving to a liquor store to obtain alcoholic drinks to bring back to the appellant’s house.

3. After some of the alcohol had been consumed, the appellant massaged the complainant. Initially, the appellant sat astride the complainant who was lying on his back, with his buttocks resting on the complainant’s pelvis and genital area. Both the complainant and the appellant were wearing trousers at the time. In due course the complainant lay on his front and the appellant continued the massage straddling the complainant’s buttocks. When massaging the complainant, the appellant rubbed “his fingers up and down [the complainant’s] stomach to his chest and down to his belt and back up again.” Ms Smith took a brief video picture of the massage on her mobile phone.

4. One or two days later, the appellant’s car was used by Ms Smith to drive to a liquor store to obtain more alcoholic drinks. After a considerable quantity of alcohol had been consumed, the three watched what the complainant described in an interview with police officers as a “pornography movie”. It depicted “2 gay fellows … [h]aving sex”. In a police interview, the complainant described in some detail the sexual activities in which the actors were engaged even though he said, “I wasn’t really watching it, I was sleeping.” Ms Smith asserted that in the course of the evening the appellant kept touching the complainant “[e]verywhere … up his sides, on his hips, on his bum.”

5. Ms Smith said that they watched the first DVD for about 15 minutes. According to her, while the DVD was being played, the three engaged in a conversation which included the appellant saying words to the effect that: a male’s G-spot was “in his behind”; if a little boy was touched on the penis “it would automatically go up” and “that’s how parents use it – their kids for prostitutes, like that”. She said that the complainant commented in respect of the statement last mentioned, “Yeah, it’s true.”

6. Ms Smith said that one of the scenes depicted a male performing fellatio on another male and that there were also scenes of anal intercourse. She said that it was at the request of the complainant that the video or DVD was changed.

7. Ms Smith gave the following additional evidence. As the complainant was drifting off to sleep, the appellant told Ms Smith to go and sleep in another room. She tried, unsuccessfully, to wake the complainant who was then lying under bed covers. After the appellant returned to his bedroom, Ms Smith placed her ear to the wall and heard “sex sounds”. She then sent a text message to the complainant saying, “If you don’t want him to do anything, yell out to me. I come in. Okay?” She didn’t receive a reply so she opened her door. She noticed that the appellant’s door was closed and decided to call the complainant on her mobile phone. She asked, “What’s going on? Are you okay?” The complainant responded, “Yes.” She asked, “What’s he doing?” And was told, “Nothing.” A short while later the complainant and the appellant emerged from the appellant’s bedroom. The complainant went to the bathroom and then came and sat on her bed. The appellant then walked into the bathroom. She asked the complainant, “What the fuck did youse just do?” He responded, “Nothing.” Ms Smith said, “Don’t lie to me. I can smell it on you. What the – what the fuck did youse do?” The complainant said that, “Mike touched his dick.” And then he took it back and said, “No, no, no, he never.”

8. The appellant emerged from the bathroom and asked the complainant to come back to bed. Ms Smith demanded that the complainant stay with her. Ms Smith commenced to drink a can of rum and coke and told the complainant that they would sleep on the lounge which converted into a sofa bed. Ms Smith and the complainant left the house at around 8 or 9 am in the morning.

9. A day or two later^[1] the complainant telephoned Ms Smith and asked her to come to the appellant’s place.  When she arrived, she saw through a glass door the appellant, who was wearing boxer shorts, walk up behind the complainant and go to grab him.  She called out, “Oi” and the appellant said, “[o]h, I’m just giving [the complainant] a cuddle.  Give me a cuddle.”  Later in the day, the complainant and Ms Smith went back to the appellant’s house.  The appellant said that he and the complainant would walk her home which they did, and the complainant left with the appellant.

10. Ms Smith rang the complainant’s mother late at night in order to discuss the complainant’s conduct in relation to the appellant. She said that the complainant’s mother came to her place and spoke to her, after which she had a discussion with the complainant.

11. In an interview with a police officer on 17 February 2009, the complainant told the interviewer that “[the appellant] sucked on my dick and put his dick on mine”, and that subsequently he was sodomised by the appellant who rolled him over for that purpose. The complainant said that he returned to the appellant’s house the day after the incident.

12. The appellant gave an interview, in which he gave the following account. He agreed that he had invited the complainant back to his house and that alcohol had been purchased and consumed. He “sculled three glasses” of rum and coke, but did not consume any other alcoholic drink. The others were skolling drinks as well. They were playing a game of cards and introduced a rule that the loser had to skol. The complainant and Ms Smith said they wanted to stay the night.

13. He invited the complainant and Ms Smith into his room to watch DVDs as he was tired. Ms Smith selected a gay porn DVD and insisted that she watch it and another DVD she selected. The three watched the DVDs while lying on the bed. Eventually the appellant said, “that’s enough of that” as it “was supposedly turning her on … and [the complainant] was telling me that [Ms Smith] liked me and all this sort of stuff.”^[2]  The complainant “didn’t take a lot of notice of what was on TV … so he just lay down and crashed out.”  Ms Smith left the room.  The appellant went to watch TV and about half an hour later Ms Smith and the complainant got up and both went into Ms Smith’s room.  The complainant woke up and said, “lets sleep out in the lounge room … ‘cause they still wanted to listen to music and they still wanted to drink whatever alcohol was left…”.^[3]  He couldn’t say what parts of the DVD the complainant would have seen.

14. He recalled that they also watched “quite a bit of” a video showing Asian girls engaged in sexual activity. Asked why he let Ms Smith put the hard core video on and why they watched it, he said, in effect, that he thought that perhaps Ms Smith would have spent the night with him. That seemed rather inconsistent with his earlier statement that he turned off the video because it appeared that it was “turning her on”. As one of the videos was playing, the complainant “turned around and said that …[Ms Smith] would be very hot” and that, “If you guys are having sex I’m out of here.”

The similar fact evidence

15. The appellant had pleaded guilty in March 1994 to one count of committing an indecent act, one count of indecent assault and one count of carnal knowledge by anal intercourse of a person not an adult. The victim was an 11 year old boy whose family had met the appellant after they moved into a house in Inala. The appellant was friendly with their next door neighbour. Within 17 days of the appellant having met the victim, the victim slept over at the appellant’s house when the victim’s mother was away attending a funeral.

16. The first of the offending conduct occurred on that occasion when, in the laundry, the appellant asked the victim to massage him all over. The victim said he didn’t want to massage the appellant’s front and was told by the appellant that if he didn’t, he would hit him. He made the victim massage his penis. The victim left the laundry and went upstairs. After that, the appellant took the victim to a shed, pulled his pants down, and put his mouth over the victim’s penis. The third offence was committed on the appellant’s waterbed in his bedroom when the appellant put cream inside the victim’s anus and sodomised him. The victim was sleeping on the bed because there was no other bed for him to use and he was requested to sleep in it by the appellant.

Ground One - The evidence of the appellant’s convictions on 4 March 1994 was wrongly admitted

17. The similar fact evidence was ruled admissible in a pre-trial hearing pursuant to s 590AA of the Criminal Code.  The judge held that applying the test in Pfennig and Phillips that there was “no reasonable view of the similar fact evidence consistent with the innocence of the accused.”  His Honour added:

“In my view, for an adult man to massage a boy and have the boy massage him in the circumstances which prevailed in 1996 (sic) and at the subject time it is consistent only with him grooming the boy so as to be able to engage in the unlawful activity alleged.”

18. Counsel for the appellant challenged the judge’s reasons for ruling the evidence admissible.

Ground 1 – Counsel for the appellant’s arguments

19. Counsel for the appellant argued that the evidence of the 1993 offences did nothing more than establish the appellant’s general propensity for sexually offending against boys. It was submitted that the fact that the 1993 offences and the present allegations were broadly similar was an insufficient basis for the admission of evidence of the 1993 offences.

20. The following distinctions were drawn between the 1993 offences and the subject offences. With the subject offences, the complainant was not required to massage the appellant in an intimate way, and the massaging occurred in different contexts. In this case, the context was three persons drinking and socialising together and relating, superficially at least, in an adult way. The 1993 context was the use of the massage as a pretext to bring about intimate touching.

21. In this case, the sexual offences were committed separately from the massage, and it was not, directly, a prelude to the sexual offences. The fact that sexual abuse of a child is preceded by non-sexual physical contact, such as massage, is an unremarkable feature of offences of this type. 

22. The complainant in the 1993 offences was a family friend who was sexually assaulted on his eleventh birthday. He was vulnerable not only by reason of his age, but because of the family connection. In the present case, the complainant was a streetwise teenager who was not alone with the appellant during the massages. 

Ground 1 - Consideration

23. The principles to be applied in determining the admissibility of similar fact evidence of the nature of that under consideration were summarised in the reasons in R v Brown as follows:^[4]

“[18] Of course, the existence of ‘striking similarities’, ‘unusual features’ or an ‘underlying unity’, ‘system’ or ‘pattern’ is not an essential pre-requisite to the admissibility of such similar fact evidence. But evidence of the type under consideration is admissible only if there is no reasonable view of such evidence, considered together with the other relevant evidence in the case which is consistent with the innocence of the accused.

[19] The correct approach to the determination of the admissibility of such evidence was stated by Hayne J in HML v The Queen quoting from the reasons in Phillips v The Queen:

‘In deciding the question of admissibility presented by Pfennig, the trial judge is not called on to decide whether the evidence which the prosecution intends to adduce does or does not establish the accused’s guilt.

…

the test [in Pfennig] is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v R does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.’ [Emphasis added.]” (Citations omitted)

24. There were aspects of both sets of offences which revealed a “striking similarity” or a “pattern” or an “unusual feature”. In both cases, the mature aged appellant struck up a friendship with a male child in such a way that the appellant engineered that the child soon shared his bed in the evening. In both cases, massage was used by the appellant as a pretext. In the 1993 offences, it directly paved the way for sexual handling. In this case, the massage was employed as part of a sexual grooming process. There were necessarily some differences between the two sets of offences. In this case, a more obvious and coercive approach was deterred by the presence of Ms Smith.

25. I do not accept as accurate the description of the appellant as a “family friend” of the victim of the 1993 offences. The appellant had met the victim’s family through a neighbour of his less than three weeks prior to the offending conduct. The family and the appellant lived in different suburbs and the evidence did not disclose the extent of the social contact between the appellant and the victim prior to the offending conduct. It is not likely that it was extensive given the geographical separation.

26. Another similarity between the two sets of offences was the progression from the touching of the victim’s penis to fellatio and then to sodomy on the appellant’s bed in which the victim was sleeping or about to sleep. It may be thought also that the speed with which the appellant fulfilled his sexual aims added to the similarities.

27. The foregoing comparison demonstrates that the evidence of the 1993 offences did rather more than merely establish the appellant’s general propensity for sexually offending against boys. The connection between the evidence in respect of the 1993 offences and the other evidence relied on by the prosecution in this case is sufficient to warrant the admission of the former. The evidence in respect of the 1993 offences had “a really material bearing on the issues to be decided”, and supported an inference that the appellant was “guilty of the offence charged, and [was] open to no other, innocent, explanation.”^[5]

28. The appellant has failed to make good this ground of appeal.

Ground 2 - The trial judge’s directions to the jury about the use of the similar fact evidence were inadequate

29. The relevant directions were:

“This next special part of the evidence that I want to talk to you about is what I am going to call similar fact or propensity evidence, and it relates to that prior conviction which has come before you as evidence. Evidence has been placed before you that the defendant has committed offences of a sexual nature involving a boy back in 1994.^[6] You must not reason that because the defendant committed those offences in 1994 he must also have committed the offences alleged in this case. You must not reason that because the defendant committed those offences in 1994, he is therefore the kind of person who would or might commit the offences that have been charged. 

It is accepted on behalf of the defendant that in 1994 the defendant had a boy massage him. After that, the defendant insisted on having that boy massage his penis. Soon after, they went to a shed and the defendant performed oral sex on the child. Later, they returned to the house and the defendant put his penis in the boy's anus. 

In this case before you, [the complainant] gave evidence that Mr Gregory massaged him. Mr Gregory is alleged by [Ms] Smith to have had [the complainant] massage him. Mr Gregory is later alleged to have again massaged [the complainant]. [The complainant’s] evidence was that the next day, after playing cards and watching pornographic movies, Mr Gregory asked [Ms Smith] to leave the room and he then touched [the complainant’s] penis, performed oral sex on [the complainant] and put his penis in [the complainant’s] anus. 

Now, you may only use the evidence of what occurred in 1994 if you are satisfied that the defendant's conduct back in 1994 is so strikingly similar with the defendant's conduct alleged by the complainant in this case, that as a matter of common sense and standing back, looking objectively at it, the only reasonable inference is that the same sequence of events which occurred in 1994 also occurred on this occasion as alleged by the complainant. 

Now, the prosecution argues that there is no reasonable view of the evidence of that earlier conviction and the current evidence other than the defendant is guilty of these offences as alleged by the complainant. If you are not satisfied that the only reasonable inference is that the same sequence of events occurred on each occasion, you must put the evidence of the 1994 offences and the fact that the defendant was convicted of those offences entirely out of your mind. Those matters would be entirely irrelevant to this case and it would be wrong to use that evidence against the defendant. 

Remember, you certainly must not reason that because the defendant committed those 1994 offences, he is generally the sort of person who would or might commit these offences. You may only find the defendant guilty of the offences charged if you are satisfied beyond a reasonable doubt that he has committed these three - one or more of these three offences.”

Ground 2 – Counsel for the appellant’s arguments

30. Counsel for the appellant’s submissions may be summarised as follows. Weaknesses in the prosecution’s case, including the complainant’s reluctance to make a complaint; his unconvincing explanations for not leaving the appellant’s residence after the alleged offences; his actively seeking the company of the appellant after the alleged rape and the pressure put upon him by Ms Smith to complain, as well as her role in the matter generally, gave rise to doubts. Without the similar fact evidence the jury may have been left with a reasonable doubt about the appellant’s guilt. Consequently, the jury needed to be informed, carefully, of the use to which the similar fact evidence could be put. In her opening, the prosecutor informed the jury that the similar fact evidence was relevant to the identification of the appellant as the offender. This statement was not corrected by the trial judge. Nor did the trial judge explain to the jury that the similar fact evidence was relevant only to counts 2 and 3.

31. The critical question for the jury was whether there was a reasonable view of the similar fact evidence consistent with the appellant’s innocence, or, as expressed in the direction, whether the jury was satisfied that the only reasonable inference was that the same sequence of events occurred on each occasion. In order to properly consider whether the same sequence of events had occurred, the jury should have been told to consider the context in which each massage occurred. They should have been told, as well, to consider the significance of the passage of time between 1993 and the present offences and the different ages and vulnerabilities of the complainants. It was necessary for the trial judge to refer to the competing arguments as to whether the same sequence of events occurred. He failed to do so, referring to the prosecution’s submissions, but not to the defence submissions.

Ground 2 – Consideration

32. There is no validity in the implicit contention that the summing up was unbalanced. The reference to the prosecution contention was merely a means of introducing the direction that to convict, the jury had to be satisfied that “the only reasonable inference [was] that the same sequence occurred on each occasion”. When summarising the defence and prosecution cases in relation to the similar fact evidence, the primary judge devoted far more time to the former than the latter.

33. It may have been desirable for the primary judge to have given a more detailed summing up along the lines of that suggested by counsel for the appellant. However, it was not incumbent on the primary judge to take that course. The facts were within short compass. The jury was well able, without further assistance from the judge, to form a view about the nature and purpose of the appellant’s massaging of the complainant and compare that conduct with the nature and role of the massage in the 1993 offences. It would have been desirable for the primary judge to draw attention to the 10 year gap between the subject offences but, again, it is most unlikely that this was lost on the jury. The relevant part of defence counsel’s address appears to have been omitted from the record, but it seems from remarks of the primary judge in her summing up that the time gap was brought to the jury’s attention by defence counsel.

34. The directions given by the primary judge that the similar fact evidence could be used only if the jury was satisfied that the sequence of events in this case was the same as in the 1993 offences favoured the defence rather than the prosecution. As counsel for the respondent pointed out, no redirection was sought by defence counsel and an elaboration by the primary judge on the details of the prior offending and the subject offending conduct would not have been to the appellant’s advantage. This ground has not been made out.

Ground 3 - The verdict was unsafe and unsatisfactory

35. The following matters suggest that the verdict was unsafe and unsatisfactory:

1. The matters referred to in paragraph 31 above.

2. The complainant’s first statements about what happened in the bedroom were contradictory.  (This is in reference to Ms Smith’s evidence that after the complainant came out of the appellant’s bedroom, he initially denied that anything had happened between him and the appellant, but that after Ms Smith remonstrated with him, he said, “He sucked my dick,” and then denied it.)

3. The lack of detail in the complainant’s account of what happened.

4. Ms Smith’s texting and telephoning the complainant during the alleged rape, and the complainant’s failure to take advantage of that contact to escape.

5. Ms Smith’s not entering the bedroom during the alleged rape, nor taking the complainant away from the house afterwards.

6. The complainant’s unconvincing explanations for not telephoning his mother and for not leaving the appellant’s house after the alleged offences.  The complainant’s evidence was that he couldn’t have gone home because he had no way to get home and that he couldn’t go to Ms Smith’s house because he wasn’t allowed there.^[7]

7. The complainant’s encouraging Ms Smith to have sex with the appellant because he would give her whatever she wanted.

8. Rather than the appellant initiating the massage, the complainant complained about a sore back, causing the appellant to massage him.

1. Ms Smith’s video recording of the massage of the complainant by the appellant thinking it could be “evidence” which she could use later in some way.

10. The alcohol was requested by Ms Smith and the complainant:  not offered to them by the appellant.

(k)The complainant and Ms Smith sought out the company of the appellant after the alleged rape.

(l)Ms Smith texted a message to the appellant the morning after making her statement to police which said something like:  “You are one of the good guys” and the improbability of her explanation that it was a message intended for the arresting officer.

(m)Ms Smith’s calling the appellant later that same night to “see if he got arrested”.^[8]

(n)Ms Smith’s evidence to the effect that she could fabricate sexual allegations “any time [she] want[ed]”.

(o)Ms Smith’s evidence to the effect that she required medication (an anti-depressant and anti-psychotic), that things felt quite “weird” for her and that she had “too much anxiety” which “sometimes affected her memory”.

(p)The lack of injury to the complainant despite his allegations that intercourse occurred for 20 minutes, that he was not consenting and that he was sore for one or two days afterward.

Ground 3 - consideration

36. Ms Smith’s admission, in cross-examination, that the complainant had been complaining about a bad back before he was massaged by the appellant, does not detract from the strength of the evidence that the appellant’s purpose in giving a massage was to groom the complainant.  There was a distinctly sexual overtone to the way in which the massage was conducted. 

37. Ms Smith’s evidence about texting and telephoning the complainant during the alleged rape, her failure to enter the bedroom at that time, and her and the complainant’s failure to leave the house immediately are all matters on which the defence relied to cast doubt on the evidence of the complainant and Ms Smith. Like the other matters relied on by counsel for the appellant to support the unsafe and unsatisfactory argument, they were before the jury. But it could hardly be said that a reasonable jury, having considered these matters either alone or in combination, could not have reached a verdict of guilt beyond reasonable doubt. The complainant and Ms Smith were from unusual and troubled backgrounds. They had both consumed a great deal of alcohol. The events in question occurred late at night or very early in the morning, and it is relevant that it was unlikely that either the complainant or Ms Smith had delicate sensibilities where sexual matters were concerned.

38. The complainant’s reluctance to make a complaint and the evidence which suggested that he was coaxed into complaining by Ms Smith are not matters which, necessarily, suggest that the complainant’s evidence was unreliable. His reluctance is capable of being explained by his desire not to make public the way in which he had been sexually dealt with. The lack of detail in the complainant’s complaint is consistent with the existence of some such reluctance on his part. It may even be the case, that the complainant saw some prospect of future material gain in not excluding the possibility of some future social contact with the appellant. Although the complainant’s suggestion to Ms Smith to the effect that she should have sex with the appellant for the purposes of material gain says something about his values and character, it says little, if anything, about whether he was sexually dealt with against his consent.

39. In forming a view as to the reliability of the complainant’s evidence of the sexual contact between him and the appellant, the jury was well entitled to have regard to the sequence of events leading up to the conduct constituting the offences. That conduct commenced with the mature age appellant striking up a friendship with a 14 year old child who was a stranger to him, and inviting him to his home.  Then that day, in the presence of Ms Smith, the appellant initiated sexual conduct through the medium of a massage.  Within a day or two, the complainant was showing pornographic movies to the complainant and Ms Smith with all three on his bed late at night. 

40. The appellant claimed to have had a sexual interest in Ms Smith, but it was Ms Smith who was despatched from the room so as to leave the appellant and the complainant sharing the appellant’s bed.  Given that evidence, even without the other evidence of the conversations which occurred while the movies were being played, and Ms Smith’s evidence of earlier touching of the complainant by the appellant, it would be remarkable if the jury had concluded that the appellant did not attempt to take advantage of the opportunity created by him to have sexual contact with the complainant. 

41. The real question for the jury was not so much whether the appellant had had sexual contact with the complainant, but the precise nature of that contact. The appellant did not give evidence. The complainant did. There was nothing inherently improbable in the complainant’s brief, and reluctantly given, evidence of the sexual acts perpetrated on him by the appellant. His evidence was corroborated by Ms Smith’s account of what she had heard and seen whilst the complainant was alone in the appellant’s bedroom with the appellant and after they emerged from the bedroom.  The jury would have derived a degree of comfort from the fact that the separate accounts from the complainant and Ms Smith did not smack of any collusion on their part.  Also, Ms Smith’s account, although having its oddities, is not suggestive of exaggeration or contrivance.

42. This ground of appeal has not been made out.

Ground 4 - The verdict in respect of count 1 was unreasonable

43. The appellant’s counsel argued that, although the real issue in count 1 was whether the appellant wilfully exposed the complainant to an indecent film, given the weakness of the evidence, it is reasonable to assume that the wrongful admission of the similar fact evidence informed the jury’s considerations.

44. Counsel for the appellant submitted as follows. The evidence was weak. The complainant told the police he was not really watching the movie; he was sleeping. He said he saw 10 seconds of it. He said during his pre-recorded evidence that he was going to sleep while the other two were watching it and that he only glanced at it for a couple of seconds. He wasn’t sure whether he saw anything happen in the movie or whether he was relying on Ms Smith’s description of it. Relevance was placed on this exchange in cross-examination:

“Do you really know - did you really see what happened in that movie, or are you just relying on what [Ms Smith] told you later on?-- I'm not sure.

So, it's hard to say now?-- I can't remember, it's been a long time.

Okay. Have you and [Ms Smith] talked about that gay porn movie since that night at Mike's house?-- Don't think so.

So, you say you saw it for a couple of seconds but you were falling asleep?-- Yeah.

Was there only the one movie shown?-- Um, I don't think so. I'm not sure. I think there was a couple.

And you told police you thought the movies were on for about 10 minutes?-- Probably.

Was that just a guess, or is that what you remember?-- I can't remember.

So, you can't remember now?-- Not much.”

Ground 4 - Consideration

45. The complainant was not a particularly satisfactory witness, but there was ample evidence which the jury were entitled to accept, and upon which they could have convicted. The evidence of the appellant himself was sufficient to justify a conviction.  He admitted that the complainant had seen some of the first pornographic movie and had participated in a discussion whilst that was happening.  The jury could also have accepted, as more reliable than the complainant’s evidence-in-chief, his descriptions in his police interview of what he had seen of the DVD film.

46. Ms Smith’s evidence of herself, the appellant and the complainant participating in a conversation about the location of a male G-spot and parents using their children for prostitutes, whilst a pornographic DVD was being played, would also have been sufficient of itself to support a conclusion beyond reasonable doubt that the appellant exposed the complainant to an indecent film.

47. The primary judge should have directed that the similar fact evidence could not have been used by the jury in considering count 1, but the failure to so direct was not productive of any unfairness to the appellant or any miscarriage of justice. The prosecution case, in respect of count 1, was overwhelming, and it was also unlikely that the jury would have considered that similar fact evidence had anything to do with that count. It is significant that no redirection was sought by defence counsel. This ground has not been made out either.

Application for leave to appeal against sentence

48. In the event that the appeal against conviction for count 1 failed, the appellant sought leave to appeal against the sentence of four years to be served concurrently with the other sentences. Counsel for the appellant submitted that whether the offending conduct was part of more sexual offending or not, four years imprisonment was a manifestly excessive penalty for exposing a half asleep teenager to 10 seconds of a pornographic movie. It was submitted that a sentence of no more than six months imprisonment was appropriate for such offending. It was submitted also that it could not be said that the film was used to corrupt an otherwise innocent or naïve child and it should be viewed as adult activity along the lines of “playing cards and drinking and engaging in adult talk”.^[9]  No comparable sentences were pointed to by counsel for the appellant or the respondent. 

49. Counsel for the respondent submitted that the showing of “these highly pornographic videos to the child” as a prelude to the other offending conduct was sufficiently serious to render a four year sentence not manifestly excessive.

50. As the sentences were concurrent and the sentence imposed for count 3 was eight years imprisonment, the four year sentence imposed for count 1 has no practical consequence for the appellant. That does not mean that one of a number of concurrent sentences which is manifestly excessive but shorter in duration than one or more of the other sentences should not be disturbed. However, where an applicant seeks leave to appeal against such a sentence, it is surely incumbent on the applicant to do more than merely assert that the sentence is too high. I do not accept the accuracy of the assertion that “a half asleep teenager (was exposed) to 10 seconds of a pornographic movie”.  The showing of the movie bore the character discussed previously, and the evidence strongly supports the conclusion that the complainant saw depictions of graphic homosexual and heterosexual conduct.  Even so, the four year sentence does appear high but, in the circumstances, I would not be disposed to grant leave to appeal.

Conclusion

51. For the above reasons, I would order that the appeal against conviction be dismissed and that the application for leave to appeal against sentence be refused.

52. WHITE JA:  I have read the reasons for judgment of Muir JA and agree with his Honour that the appeal against conviction should be dismissed.

53. I agree with Muir JA’s comment that the sentence for Count 1 – wilful exposure of a child under 16 to an indecent film – of four years, appears, on these facts rather high. But, like his Honour, I would not grant leave to appeal that sentence in the circumstances.

54. MARTIN J:  I agree, for the reasons given by Muir JA, that the appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be refused.