R v Sologinkin[2020] QCA 271

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  After a trial the appellant was convicted of one count of unlawful and indecent assault for which he was sentenced to a wholly suspended period of imprisonment of four months with a 12 month operational period.  A conviction was recorded.  The appellant appeals against his conviction and seeks leave to appeal against his sentence.
2. [2]
   The complainant was a female croupier who worked at the Treasury Casino.  According to the evidence which she gave, on 12 July 2017, she began work at 10 pm.  After taking a break, she was returning to her rostered position on the casino floor when a man “appeared to bump into [her] and wipe his hand between [her] legs as he passed”.  The complainant gave the following further details of this touching:

   1. (a)
      “It was in between my legs at the – at the tip of my clitoris.”
   2. (b)
      “I felt a finger.  It wouldn’t have been any more than just a finger.”
   3. (c)
      “I mean, the rest of his hand was around that general area up against my pants, yes.”
   4. (d)
      She said that by “general area” she meant “[her] vagina.”
   5. (e)
      “It went up to my hip as he’s gone past me so he slithered from my vagina to my right hip.”
3. [3]
   The complainant said that she stood frozen for a moment, feeling confused, and then reported the matter to two of her supervisors.
4. [4]
   In cross-examination she was pressed with the suggestion that the touching may have been accidental.  She responded, “You don’t accidentally get someone in the middle of their legs.”  In answer to the question where the man’s hand first made contact, she said, “He went straight for my clitoris.”  It was put to the complainant that the “male person didn’t actually push his fingers into your vagina, did he?”, to which she replied, “Yes.  I felt that.  That’s what made me feel his finger.”  There was some cross-examination about what was said to have been a prior inconsistent description of the touching.  This led to the prosecutor’s eliciting from the complainant that she had said at the committal: “If you’re asking if I felt his fingers move, I felt his fingers touching my freaking clitoris, like that’s not okay.”
5. [5]
   A security video recording was admitted into evidence and played to the jury.  The appellant’s counsel showed the video to the court during the hearing of the appeal.  It will be necessary to deal with the content of the recording later, but for present purposes it is enough to state that it showed an interaction between the complainant and a man who the Crown alleged was the appellant.
6. [6]
   The appellant gave evidence in his case.  He said that he and some friends had gone to the casino after a State of Origin game.  He admitted that “on a scale of one to 10 … with 10 being [paralytic] drunk” he was about four or five.
7. [7]
   He denied intentionally touching the complainant.  He said that he had no recollection of touching her.  He did not admit that he was the man in the video recording but accepted that it “may be me”.  He refused to accept that the man in the video recording had touched the complainant on the vagina.  He said that he did not “intentionally walk past her and touch her on the vagina”.  He denied intentionally putting his hand out to touch the complainant.  The appellant was interviewed by police and he denied any indecent touching.
8. [8]
   The appellant submitted that there was a miscarriage of justice as a result of the learned trial judge’s “misdirecting the jury that the appellant’s evidence was that he had never touched the complainant at all”.
9. [9]
   During deliberations, the jury sent a note to the trial judge which said:

“Can the jury have advice on intentional versus an accidental action?”

10. [10]
    The learned trial judge heard submissions from both counsel about the terms of an appropriate direction to give the jury.  Defence counsel submitted that it was fundamental to the Crown case that “the defendant made a decision to touch her on the vagina”.  He also submitted that the complainant did not, and could not, give evidence herself that the touching was intentional and that intent had to be established from circumstantial evidence.  In the course of making submissions about the terms of a draft direction that the trial judge had given to counsel, the appellant’s counsel submitted to her Honour that, in considering whether the Crown had proved an intentional indecent touching, the jury could have regard “in determining his intention, not only [to] what occurred at the time, but [also to] his sworn evidence that he didn’t touch her on the vagina”.  It was important for the defence case for the jury to consider the appellant’s denial that he had touched the complainant on the vaginal area.  Defence counsel reinforced this point by making the following submission:

“MR EBERHARDT:  Yes.  Yes, that’s right.  And I would ask your Honour to remind them at that point that he gave evidence denying that he intentionally touched her.

HER HONOUR:  Yes.  Do you have any difficulty with it?  Well, once again, we’re going through the evidence.  Do you have any difficulty with that?

MS GALLAGHER:  Well, his evidence was that he never touched her, not that he didn’t intentionally do it.  He denied touching her on the vagina.  So I just draw that distinction.

HER HONOUR:  Yes.  And if I say that the defendant’s evidence was that he did not touch her – the complainant at all.

MS GALLAGHER:  Yes.  Thank you.

HER HONOUR:  Anything further?

MS GALLAGHER:  Nothing from me.  Thank you, your Honour.

HER HONOUR:  Nothing from you, Mr Eberhardt?

MR EBERHARDT:  No, your Honour.”

11. [11]
    It can be concluded that the appellant’s counsel saw a forensic advantage for his client to have the jury hear, from the judge herself, that the appellant had denied touching the complainant “at all”.  Accordingly, the learned judge gave the following direction:

“Now, intentional is a familiar word.  In this legal context, can I say to you that it does carry its ordinary meaning and that meaning is deliberate or another way of expressing that, perhaps, is to say that – done on purpose.

Now, if you are satisfied beyond reasonable doubt that it was the defendant that touched the complainant on the vagina, then you will need to be – to ascertain whether or not you are satisfied beyond reasonable doubt that he intended to do so.  Now, intention may be inferred or deduced from the circumstances in which the touching occurred and from the conduct of the defendant before, at the time of or after he touched the complainant.  And of course, whatever a person has said about his intention may be looked at for the purpose of deciding what that intention was at the relevant time.  Now, you will recall that the defendant gave evidence yesterday and his evidence was that he didn’t touch the complainant at all.

The prosecution asks you to infer that the defendant intended to touch the complainant on the vagina and the defendant says that you could not be satisfied beyond reasonable doubt of this.

Can I also explain this to you: that it would not be enough to simply prove that a touching of complainant – to prove a touching of the complainant by the defendant.  That would be an assault, but the charge here is not simply one of assault.  It is one of indecent or sexual assault.  So to be indecent, the touching on the vagina which the Crown alleges must have a sexual connotation and it must be an unequivocal sexual connotation.  So if you thought, for example, that the touching on the vagina could have something other than a sexual meaning to it, then it would not be indecent.

So accordingly, the Crown must prove beyond reasonable doubt not only that the defendant touched the complainant on her vagina, but that he did so with a sexual motive or some intent to obtain sexual gratification.  So in other words, the Crown must prove the existence of a sexual connotation in any touching.

You will no doubt remember what I told you yesterday about reasoning from circumstantial evidence.  Now, you may only draw the inference that the touching on the complainant’s vagina was intentional if it is the only rational inference open on the facts which you find to be proved.  So if there is a competing rational inference consistent with innocence, then you must draw that inference.”

12. [12]
    This direction was given not merely with the concurrence of the appellant’s counsel but in accordance with his earnest submission that it should be given.  The appellant now submits on appeal that he has suffered a miscarriage of justice because the direction sought by his counsel was given.  He submits that the jury was “incorrectly directed that the appellant’s evidence was a denial of any touching”.
13. [13]
    That submission must be rejected.  It is true that the appellant did not deny that he may have touched the complainant unintentionally.  The jury could have been under no misapprehension that there was a touching of some kind.  The video recording showed it.  The only question for the jury was whether there was an intentional touching, that is to say, whether the appellant deliberately reached out to touch the complainant between her legs for his own sexual gratification.  As defence counsel insistently submitted, in his evidence the appellant had denied doing any such thing.  The learned judge’s factual observation was not only made at the urging of defence counsel, but it was indisputably correct when understood in its context.
14. [14]
    The appellant also submits that the learned trial judge’s direction about intentional touching as opposed to accidental touching was inadequate.  On this appeal he submits that the direction to which his counsel consented after due consideration “did not need to be given” and that, instead, “[a]ll that needed to occur … was for the jury to be directed in the terms approved in R v Khaled.”^[1]  The passage from that case upon which the appellant relies is, relevantly, this:

“… that [he] did so for his own sexual gratification, rather than for another purpose and that any touching was not merely accidental or inadvertent, but was intentional, as I say, for his sexual gratification.”

15. [15]
    It is not necessary for trial judges to cut and paste jury directions from other cases or, indeed, from the Bench Book, although that may be the most efficient way to fashion a particular summing up.  The learned trial judge in this case gave a direction which was the product of her own consideration and also the product of constructive submissions from both counsel, each being zealous of their own client’s interests.  We respectfully consider the part of the summing up concerning intention, which we have quoted above, to be one that accurately and comprehensively explains the relevant law and how the law applied to the particular case.  The directions directed attention to the deliberateness of the touching that the Crown had to prove, the sexual element in that touching and the class of evidence to which the jury could have regard.  It was a direction which was approved by defence counsel.  This ground should be rejected.
16. [16]
    The appellant also submits that the jury’s verdict was unreasonable and cannot be supported by the evidence.  The appellant expressly accepts that it was open to the jury to be satisfied to the requisite standard that it was the appellant who touched the complainant and that she was touched on the vagina with an open hand.^[2]  Once that concession is taken into account, it only remained for the jury to consider whether the complainant’s evidence established to the jury’s satisfaction that the touching was a deliberate sexual touching.
17. [17]
    The appellant submits that the complainant’s evidence “lacked credibility and reliability” and that “it was not open for the jury to be satisfied that the touching occurred in the manner described”.^[3]  This was because the complainant’s evidence at trial was said to be inconsistent with her evidence at the committal and with a statement that she had made to the prosecutor at an interview before the trial.
18. [18]
    These were matters that were explored in detail in cross-examination of the complainant.  Like many complainants who give evidence in trials for sexual offences, this complainant’s evidence was not always entirely consistent.  However, her evidence was in its substantial features entirely consistent throughout.  According to her, the appellant walked past her and, while very close to her, took the opportunity to put his hand between her legs to feel her genitals.  The video recording, in its depiction of this interaction and in its depiction of the complainant’s horrified reaction, supported the complainant’s evidence.  The recording shows the appellant turn towards the complainant as he comes adjacent to her, put out his right hand and then lower it as he looks down towards her groin.  He can be seen reaching towards her vaginal area.
19. [19]
    The matters raised by the appellant in his outline^[4] as to why the jury should have had a doubt about the complainant’s evidence are all matters for the jury and they were all matters that were in fact put forward for the jury’s consideration.  Indeed, once it is accepted, as the appellant accepts, that it was open to the jury to find that it was the appellant who touched the complainant and that he touched her on the vagina with an open hand, it is difficult to see why it was not open for the jury to find that the touching was a deliberate indecent assault.
20. [20]
    This ground should be rejected.
21. [21]
    The appellant also seeks leave to appeal against his sentence.
22. [22]
    The appellant was 39 years old at the time of the offence and was 41 years old at the time of the hearing of the appeal.  The appellant submitted below that the appropriate penalty was a fine or a good behaviour bond or, alternatively, the penalty should be a period of community service with no conviction recorded.  The Crown submitted that it was open to the learned judge to impose a sentence requiring the appellant to serve an actual period of incarceration but that a wholly suspended sentence was also not inappropriate.
23. [23]
    The offence is a serious one which carries a maximum penalty of 10 years’ imprisonment.
24. [24]
    The appellant’s substantial submission was that, although serious, this offence should have been regarded as the uncharacteristic act of a man who was otherwise of unblemished character.  He was described as a committed father of three boys.  He did not reoffend after committing this offence.  Two character witnesses gave evidence of the appellant’s previous good character and said that the offending behaviour was out of character.  It was submitted that there was no likelihood of reoffending.  He has what his counsel described as an impressive and extensive involvement in the community through his work with junior rugby league, something that would be jeopardised by a conviction.  The appellant’s blue card was revoked but then reinstated after a review process pending the outcome of this appeal.  There is no evidence that a conviction would preclude his obtaining a blue card to continue his role in coaching junior rugby league.
25. [25]
    Her Honour took into account all of these matters.
26. [26]
    This was a crude and opportunistic sexual offence by a man of mature years against a vulnerable woman in her workplace.  Undoubtedly the appellant’s sexual inhibitions were lowered by his consumption of alcohol but s 9(9A) of the Penalties and Sentences Act 1992 (Qld) expressly provides that voluntary intoxication is not to be regarded as a mitigating factor.  Indeed, a man of maturity and ordinary insight would recognise in himself the risk which attends drinking too much and would, for that reason, guard against losing control of his sexual impulses.
27. [27]
    The appellant was entitled to put the Crown to proof of its allegation and must not be punished for exercising his right to a trial.  But, having been found guilty by a jury of twelve upon overwhelming evidence, including a video recording of the actual commission of the offence, the appellant was still unwilling or unable to express the slightest regret or contrition for his criminal act.  The appellant’s past good character may be accepted as a fact, but what was conspicuously and seriously lacking was any insight that should have evoked from him, ultimately, an acknowledgment of his wrongdoing after his guilt had been established beyond any reasonable doubt.  Her Honour rightly took this into account as a factor.
28. [28]
    Nevertheless, despite the lack of insight shown by the absence of remorse, her Honour accepted that personal deterrence should not weigh heavily as a factor against the appellant because, as her Honour found, the appellant was unlikely to reoffend.  However, general deterrence remained a factor of significance in the particular circumstances of this case.  Patrons at venues like the Treasury Casino, who are there encouraged to drink and carouse, must be aware that the workers who provide the services that make enjoyment of this kind possible are entitled to feel an absolute sense of personal safety against being criminally assaulted and that, for this reason, offences like the one which the appellant committed against a member of staff at the Casino will carry serious consequences for the offender.
29. [29]
    The sentence which her Honour imposed has not been shown to have been affected by error and the application for leave to appeal against sentence should be refused.
30. [30]
    The orders we propose are:

1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.