Ahmu v R - [2014] NSWCCA 312

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Hearing dates: 20 August 2014
Decision date: 15 December 2014
Before: Basten JA at [1];
Adams J at [43];
Fullerton J at [86]
Decision:
In Ahmu v R:
1. Grant the applicant an extension of time within which to seek leave to appeal from his convictions.
2. Grant the applicant leave to appeal.
3. Dismiss the appeal.
In Director of Public Prosecutions v Ahmu:
1. Allow the appeal.
2. Without varying the non-parole periods and head sentences, vary the commencement dates as follows so that the sentences -
(a) on Count 17 commenced on 6 December 2012;
(b) on Count 18 commenced on 6 June 2013;
(c) on Counts 15 and 16 commenced on 6 December 2013;
(d) on Count 14 commenced on 6 June 2014;
(e) on Counts 3 and 11 commenced on 6 June 2014.
(f) on Counts 2,6 and 10 commenced on 6 December 2014;
(g) on Counts 4, 5, 9, 12, and 13 are to commence on 6 June 2015;
(h) on Count 8 is to commence on 6 December 2015.
The overall effective sentence therefore consists of a non-parole period of 6 years 6 months commencing on 6 June 2012 and a head sentence of 9 years 6 months. The offender will become eligible to be considered for release on parole on 5 December 2018.

Catchwords:
CRIMINAL LAW - appeal against conviction - miscarriage of justice - competence of counsel - instructions to cross-examine complainant that she had fabricated allegations the accused had expressed a sexual interest in children - further instructions that allegations true after prosecution sought to subpoena accused's medical records - whether the cross-examination was an available forensic strategy - whether failing to seek a discharge of the jury gave rise to a miscarriage of justice - whether evidence of communication between counsel and accused properly revealed
CRIMINAL LAW - Crown appeal against sentence - offender convicted of multiple counts of sexual and indecent assault against the complainant - sentenced to seven years imprisonment with a four year non-parole period - whether sentence manifestly inadequate - failure to assess properly the objective seriousness of the offences - failure to recognise the significance of the standard non-parole period - whether residual discretion to decline to interfere with inadequate sentence
Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L
Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
Criminal Appeal Rules, rr 3B, 4
Criminal Procedure Act 1986 (NSW), s 159
New South Wales Barristers' Rules, rr 5, 12, 27, 78
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v The King (1936) 65 CLR 499
Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254
Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301; 22 ALR 161
R v Baker [2000] NSWCCA 85
R v Birks (1990) 19 NSWLR 677
R v Ferrer [2008] NSWCCA 104
R v Lee [2014] NSWCCA 78
R v Mereb; R v Younan [2014] NSWCCA 149
Category: Principal judgment
Parties: Owen Jared Ahmu (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Parajasingham (Applicant)
Mr P Ingram SC (Respondent)
Solicitors:
Nyman Gibson Stewart (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2010/277205
Decision under appeal

Jurisdiction:

9101

Date of Decision:

28 March 2013

Before:

Ellis DCJ

File Number(s):

2010/277205

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged with multiple counts of sexual intercourse without consent and two counts of indecent assault against the complainant that occurred over an evening.

Seeking to undermine the complainant's credibility, the applicant instructed counsel to cross-examine her to suggest allegations she had made when seeking an apprehended violence order against him in 2009 were fabricated. The complainant had alleged the applicant expressed a sexual interest in children (including his own). After the issue was raised, the prosecution sought to subpoena conversations the applicant had with a counsellor that were said to support the allegations. The applicant subsequently told his counsel that the conversations with the complainant had occurred. The trial judge directed the jury to ignore the challenge to the complainant's veracity.

The applicant was convicted of the charges and sentenced to a total term of imprisonment of seven years with a four year non-parole period.

The applicant, seeking leave to appeal, argued a miscarriage of justice had resulted because of incompetence of counsel. The Director of Public Prosecutions sought to have admitted an affidavit from the applicant's trial counsel.

The Director appealed against the sentence, arguing it was manifestly inadequate.

Held, granting leave but dismissing the appeal against conviction, and allowing the Crown appeal against sentence:

(Basten JA; Adams J; Fullerton J agreeing)

1. The approach taken by counsel was fraught with risk but it did not demonstrate such incompetence as to give rise to a miscarriage of justice. The cross-examination was an available forensic strategy with a rational basis as was the attempt by counsel to diffuse the issue once the accused had admitted the statements were true. No incompetence was demonstrated by failing to apply for a discharge of the jury as the circumstances of the trial did not provide a sound basis to apply for a discharge: [34], [38]-[39], [56]

(Basten JA, Fullerton J not deciding)

2. The focus should be on the objective features of the trial process. Why counsel has acted is not in issue unless it explains some objective feature in a way which establishes or discounts a miscarriage. The affidavit from trial counsel should not be admitted as it went no further in establishing a miscarriage than the inferences available from the course of the trial: [31]

Nudd v The Queen [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301 applied.

(Adams J, Fullerton J not deciding)

3. Focusing on the objective circumstances alone is misleading in the present case. Trial counsel was following instructions by the accused. The affidavit revealed those instructions were based on wrong advice. Trial counsel was not under an obligation to correct what was implied. It is reasonable to infer that the instructions were given by the accused out of fear he would be left without representation. Notwithstanding, the mistaken advice was inconsequential: once the allegations had been raised, it was likely the jury would eventually become aware of the falsity of the applicant's position: [53]-[57]

(Adams J, Basten JA and Fullerton J agreeing)

4. The sentence imposed by the trial judge was manifestly inadequate as it failed to reflect the totality of the criminality involved. The sentencing judge must either have misapprehended the significance of the standard non-parole period or underestimated the objective seriousness of the offences. There is no reason to exercise the residual discretion not to intervene considering the extent the sentence fell short of an appropriate overall sentence and the need to do justice to a victim of domestic violence: [78], [79], [83]

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 applied

Judgment

BASTEN JA: In November 2012 Mr Ahmu was found guilty after trial by jury of 15 counts of sexual intercourse without consent, together with two counts of indecent assault. All of that offending took place on one night, being 19-20 August 2010, but, as the trial judge described it in his judgment on sentence, "literally throughout the night". When aggregated, the sentences imposed for each offence, with limited accumulation, gave rise to imprisonment for seven years, comprising a non-parole period of four years with a balance of term of three years.

The applicant sought leave to appeal against the totality of his convictions on the following single ground:

"There was a miscarriage of justice because of the incompetence of counsel at trial. Counsel for the applicant adduced irrelevant and incurably prejudicial evidence from the complainant in cross-examination and failed to make an application to discharge the jury."

The applicant required leave to appeal, the ground not being one which involved a question of law alone: Criminal Appeal Act 1912 (NSW), s 5(1). The applicant also required an extension of time within which to seek leave, the notice of appeal having been filed on 7 May 2014, more than a year after he was sentenced: Criminal Appeal Rules, r 3B. Neither the extension of time nor the application for leave was opposed by the Director of Public Prosecutions; accordingly, both orders should be made.

The Director also appealed against the sentences imposed on the applicant pursuant to s 5D of the Criminal Appeal Act. The Director gave notice of his intention to appeal approximately three weeks after the pronouncement of sentence. The sole ground was that the sentence was manifestly inadequate. The delay in having the sentence appeal listed for hearing is troubling and its consequences will need to be addressed below. Two reasons were provided for the delay. The primary consideration was that the applicant appeared to have been considering a conviction appeal from an early date, but was unable to obtain an advice on merits from counsel until the trial transcript was obtained. Once the transcript (including that of the summing up) had been received by the applicant's solicitors, and advice obtained, the Registry was advised that there would be no appeal against conviction and the Director's appeal against sentence was listed for hearing. However, before the hearing occurred, further advice was received that a conviction appeal would be pursued and the hearing date (then fixed for 13 May 2014) was vacated.

In these circumstances it may be assumed that both parties accepted that no complaint could be made of the delay in these circumstances although, as will be noted below, the applicant did rely upon the passage of time as warranting refusal by this Court to intervene, even if error were established with respect to the sentence.

What would have been more troubling in other circumstances was the fact that the judgment on sentence was not provided to the Director of Public Prosecutions (or the offender) until 30 September 2013, six months after the offender was sentenced. Such a delay is unacceptable. According to the chronology supplied by the Director (without any explanation) a transcript of the judgment on sentence was provided to the sentencing judge in mid-June 2013, that is some 2.5 months after the offender was sentenced. A further delay occurred because the judge was then on leave. That was apparently known to whomever appeared before the Registrar of this Court on 18 July 2013. Directions should have been given on that occasion to prevent any further delay in supply of the judgment to the parties.

Appeal against convictions

(a) issues

It is not in doubt that prejudicial material was made available to the jury as a result of questions asked of the complainant by counsel for the accused. How that came about will be explained. It will be necessary in considering the adequacy of the sentences to set out in some detail the nature of the offending. For present purposes, a quite limited summary will suffice.

In this Court the Director sought to adduce evidence to explain how the particular course of conduct resulting in prejudicial material arose in the context of the trial. Thus the Director obtained and read an affidavit from Mr Christopher Taylor, who had been counsel for the accused at trial. The affidavit set out in some detail the advice given by Mr Taylor and the instructions which he received.

Counsel for the applicant did not object to the reading of the affidavit, did not seek to cross-examine Mr Taylor, and did not tender any material in reply. He did, however, challenge the relevance of the affidavit. That form of objection raised an issue of principle, not directed to the specific content of the affidavit, and will be addressed shortly.

(b) the prejudicial material

It is convenient first to identify the prejudicial material adduced by counsel for the accused from the complainant. That evidence was summarised in the written submissions on appeal as demonstrating that the accused was "violent, sexually predatory and a child molester with a sexual interest in children, including his 2 year old son." The context in which such material was exposed is highly relevant.

The trial proceeded before the third jury to be empanelled in relation to the indictment. At an earlier stage (not revealed in the transcript before this Court) the prosecutor had identified before the judge two aspects of the evidence which the complainant might give if asked certain questions, which the prosecutor said she did not intend to ask. The first matter concerned the manner in which the parties had met, in 2007, and need not be addressed here.

The second matter related to the subsequent history of their relationship. Their first child, D, was born in February 2008, a little more than a year after the relationship had commenced. Although the relationship was far from stable, their difficulties came to a climax in November 2009 when the complainant obtained an apprehended violence order (AVO) against the applicant, alleging fears for both herself and her son, D. A final order was made, on the application of police, in May 2010. Despite that order remaining in force, preventing the applicant from approaching the complainant, the relationship resumed in July 2010. The prosecutor noted that "the reason the complainant resumed a relationship with the applicant in June 2010 was because she had concerns about the applicant having unsupervised access with the child [D]." As further explained in the applicant's written submissions in this Court, the complainant had told the police in support of her application for an AVO that "the applicant had made disclosures to her that he was having sexual thoughts about children and in particular that he had sexual thoughts about [D]." Counsel for the applicant (and the applicant) were thus on notice as to what the complainant would be likely to say if cross-examined about the resumption of their relationship in June 2010.

Despite these warnings, in the course of the first trial in July 2012 counsel for the accused sought to elicit "the fact of the complainant's concern for the safety of her child without getting into the reasons behind it, because it was improbable to think that the complainant would hold fears for her child whilst simultaneously returning to the relationship."

The cross-examination that followed concerned the complainant's psychiatric history: issues regarding protected confidences were elicited without leave of the Court, as a result of which that trial miscarried and the jury were discharged. The trial judge then questioned defence counsel as to whether cross-examination suggesting that the complainant was delusional in 2007 could rationally affect the truth of the 2010 allegations. Counsel stated:

"[In t]he medical records there are a number of references on different occasions where this complainant has indicated to her medical practitioner as is recorded in the medical documents, that she is a prophet of some sort, that she is a higher being, justification for not taking medication, increasing symptoms when she doesn't take medication. She wasn't taking any medication in August of 2010.

This delusion, as it is documented, seems to put her in a higher place than everybody else, and the questioning goes to quite simply her motivation to fabricate this allegation, such that it may well remove Mr Ahmu from the scene, such that she can continue upon her delusion of a being a prophet in waiting in which Mr Ahmu just doesn't have any role."

The matter was listed for trial again in November 2012. An issue as to the psychiatric condition of the complainant in 2007 was again agitated but not ultimately pursued in any manner relevant for present purposes. The second jury was discharged because of the behaviour of counsel for the defence in addressing the jury in opening as to why they would not believe the complainant, in contravention of s 159 of the Criminal Procedure Act 1986 (NSW).

Before that occurred, there was apparently discussion (again in transcript not before this Court) in the course of which counsel for the accused stated that he wanted to cross-examine the complainant on the basis that the allegations she made when seeking an AVO in November 2009 were fabricated. There was discussion as to the areas which might be covered in re-establishing the complainant's credit. According to the submissions for the applicant, the judge then stated that "Mr Taylor understands the parameters in which we are all working and he understands that he has to be careful not to invite answers for instance pertaining to [D] as an example." Mr Taylor apparently responded:

"Can I say your Honour that the complaint of the complainant of 14 November 2009, that is at or about the time of the AVO does relate to not only allegations of a sexual nature with respect to the complainant but also with respect to the alleged sexual interest of the accused in relation to the child. I have instructions to not resist that material coming before the Jury .... So we have considered the implications of that and to a degree it assists the accused as much as it hinders the accused, because we have a position where the complainant is making complaint, not only of a head butt, not only of sexually inappropriate activity towards her, but of some sexual interest in relation to the child ....

[T]he accused has carefully considered his position and there won't be any resistance to the full complaint as made by the complainant."

The judge apparently responded as follows:

"Alright, well that's a tactical decision that he can make, and it is not for me to comment one way or the other on that, but the only comment I would make is that the complainant ought to be aware of what can - of what she can or can't say, I know there's been some suggestion in the past that she has been told she couldn't do this or she couldn't be asked about that."

Counsel did not open for the accused before the third jury. However his cross-examination of the complainant commenced with the application in November 2009 for an AVO: Tcpt, 14/11/12, p 57. The cross-examination led from the complainant detail of non-consensual sexual activity, including on one occasion in the presence of her son, then less than two years old. The witness became distressed and the Court adjourned to allow her to compose herself. On her return, counsel continued the cross-examination of the complainant, asking whether the accused had, as at November 2009, threatened to kill her. He suggested that the bruise to her head which was said to have been the result of a head butt by the accused was self-inflicted: p 71. Explaining her response to the assault, she said that she was "very concerned about what his frame of mind was going to be because of things that he knew that I knew about him": p 72. It was then put to her that she had said in her statement to police when seeking an AVO: "Over our relationship Owen has told me that he has touched other children": p 73. The judge intervened to correct an ambiguity as to whether she was being asked to affirm what appeared in the statement or whether the content was correct. Counsel identified the latter and the judge then asked a question:

"Q. So you are now being asked whether it is correct to say that Owen had previously told you that he had touched other children?

A. I don't want to get into this."

The complainant was also taken to a passage in the statement where she had said, "he touched my leg and masturbated over me when [D] was sleeping next to me." It was put to her that that was part of the reason why she wanted the AVO, to which she did not reply. It being ten to four, the judge then dismissed the jury for the day and required the complainant to withdraw. The judge then turned his attention to counsel and said:

"HIS HONOUR: Mr Taylor, how much of this are we going into. Now, I am talking about the matters that are raised adverse to your client as distinct from - when I say 'adverse', not in relation to this lady, in relation to these other people. I mean I know it is a forensic decision, but it is a biggie.

TAYLOR: Yes, I understand.

HIS HONOUR: I am just a little concerned about it. Obviously there is the issue that it obviously generates some emotions which are making it more difficult."

After further discussion in relation to other statements in the document, including making D "touch his groin area" and a suggestion that the accused suffered from schizophrenia, the judge set out his perception of the situation in a lengthy passage, which read in part (pp 77-79):

"The difficulty - look I know it's a forensic question but at the same time I have in the past seen some examples of forensic decisions which ultimately at the end of the day have been said to cause the trial to go off the rails. So while I am loathe to intercede I am sort of, I guess, holding up a caution sign because I know from some of the previous arguments and things that we've had that she will give some explanations for why she goes back. Some explanations will be forthcoming as to, well if he is going to get custody or access I'd rather be there and I can be there twenty-four, seven. ... I am just concerned that the jury on the one hand are going to get this material which is adverse to him in any way you look at it. The purpose that you want it to go in for is going to be significantly eroded by the proposition of a not unreasonable explanation leaving you with plus on that ground but the minus of this stigma hanging over his head of being a paedophile really, which is what we are talking about."

The judge then explored hypothetically the kinds of directions which might be required if the cross-examination proceeded along those lines.

Early in the following day during his cross-examination of the complainant, counsel for the accused took her to a statement made to the police in support of her application for an AVO noting that she had alleged that the accused "apparently told you that he had sexual thoughts about children and your son [D], is that right?" The complainant replied, "Yes": Tcpt, p 85(10). Shortly thereafter the following exchange took place, at p 86(30):

"Q. And you in fact fabricated all of the allegations that are the subject of your statement in order to position yourself you thought well in relation to any potential Family Court application by Mr Ahmu, didn't you?

A. No."

Later in the day counsel cross-examined the complainant as to her fears about leaving the accused alone with D: p 115. At the end of the day the prosecutor sought leave for short service of a subpoena on the Campbelltown Mental Health Service. By way of explanation she stated, at p 169(30):

"It has been put to the complainant today in evidence that she had told police that the accused had told her that he was having sexual thoughts towards children and also [D]. It was put to her [that] that was fabricated[,] that the accused never said that to her in her evidence today. The Crown has evidence available from the complainant which is already in the brief where she says that the accused told her that he had spoken to a counsellor at that [S]ervice about his sexual thoughts towards children. Now, the Crown has not previously sought that material because it wasn't admissible - it was agreed to be not admitted in the last trial.

But it has now been squarely put to the complainant that she is fabricating that, that the accused never said that."

On the application of counsel for the accused, a decision with respect to the subpoena was adjourned to the following (Friday) morning. On that day, in the absence of the jury, counsel for the accused noted that he had taken instructions in relation to the application and sought an opportunity to allow him to obtain "some proper guidance in relation to the ethical dilemma that I face": Tcpt, 16/11/12, p 176(5).

There was no further cross-examination of the complainant until the following Monday, at which time counsel for the accused returned to the topic in the following manner (Tcpt, p 200):

"Q. So do you agree that you had some discussions, more than one it would seem, with Mr Ahmu about this topic of him having feelings towards children and [D]?

A. Yes.

...

Q. And it was in the context, wasn't it, of Mr Ahmu relaying to you that he had been sexually interfered with by his uncle, do you recall that was part of that conversation?

A. There was a lot more to it than that.

...

Q. And part of the conversation was and this is my word but that they were intrusive thoughts that Mr Ahmu was having, do you agree?

A. No.

Q. And that he felt repulsed by having these thoughts, do you agree that was something that you and he discussed?

A. I don't want to talk about this, I don't see the relevance."

At that point the trial judge intervened. In the course of counsel explaining what he was seeking to do, the following exchange took place (p 205):

"HIS HONOUR: But essentially you want to withdraw the putting to her that there'd never been such a conversation and then you want [to] qualify that by saying well there had been a conversation but [its] context was this.

TAYLOR: I didn't actually ever ... put to her that the conversation did not take place .... Had I put to her squarely, that conversation did not take place, I would of course seek to retract that and rectify that.

HIS HONOUR: Well didn't you say it was all false that what she'd put in that, what she had told the police officer was false ...

TAYLOR: Yes and all of the allegations in the statement to the police, but, I'm seeking to clarify that the position in accordance with my instructions. That is, that there was more to just the [bald] fact, told me had sexual thoughts about children and [D], there's more to it, there's that relation to the uncle, a concern about it as opposed to how it might be read there that he had this raging problem and desire and was acting out upon it."

In short, counsel was suggesting that his instructions had changed and that he accepted that there had been conversations between the complainant and the accused in relation to his sexual thoughts about children and D in particular, that he thought they resulted from his own abuse as a child and, far from wishing to act upon them, he was seeking help to overcome them.

After lengthy discussion, counsel agreed not to pursue any further questions in that regard and when the jury returned, the trial judge dealt with the matter in the following passage (Tcpt, p 212):

"Before the witness is brought back in I just have to say a few things to you. I have stopped any further questioning in relation or on the topic of conversations regarding the accused having an interest in children including [D]. While it was the defence position that such conversations have not occurred it is now clear that the defence position is that there were such conversations as the complainant asserted. That the accused expressed an interest in children including [D] may be relevant to other arguments going to the credibility of the complainant for instance and during my summing-up after the evidence has been completed I will deal with any of those issues, I won't really know precisely what they are until that point in time. But I do direct you that whether the accused had an interest in children including [D] is not proof that he committed the offences that are charged in the indictment. You cannot follow a line of reasoning that you would find him guilty of the offences in the indictment relating to [the complainant] because he had expressed an inappropriate sexual interest in children including [D]. In other words the two are completely separate issues and while it may be that the conversation and the circumstances of conversations may have some relevance to submissions that are put to you about credibility issues or believability issues it has nothing to do with your assessment of whether you are satisfied beyond reasonable doubt that the Crown has proved the counts in the indictment. ... It is just that the position seems - it seems has in fact changed, that now it is accepted that there was such a conversation, we don't get the full extent of the conversation but it's not needed for the arguments that are put."

Issues on appeal

Counsel for the applicant summarised the issues raised by this material, as revealing the incompetence of trial counsel, by the following four alleged errors, namely:

(a) introducing highly prejudicial material;

(b) after his instructions changed, failing to seek a discharge of the jury;

(c) in seeking clarification in the subsequent cross-examination, introducing far more damaging material, and

(d) failing to seek a discharge of the jury after that material was introduced.

The approach to be taken to an appeal based on supposed incompetence of trial counsel is not in doubt: the applicant must establish that there has been a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act. Because, as a matter of basic principle, an accused is bound by the course taken by counsel in conducting a trial, cases in which a conviction will be set aside on the basis of apparent incompetence of counsel will be few and far between. As explained by Gleeson CJ in this Court in R v Birks (1990) 19 NSWLR 677, adopting the language of an English decision, one looks for something in the nature of "flagrant incompetence": at 685. The cases reveal that the circumstances which may be relied upon are various. Some cases reveal an inadvertent omission to take a critical step, for example in failing to challenge the evidence of a central prosecution witness. Birks was a case of that kind: this case is not. There may also be cases where counsel is said to have flouted, without justification, express instructions from the accused: again, that is not this case. As can be inferred from the account set out above, counsel's course in cross-examining the complainant as to matters which might appear to be highly prejudicial was a deliberate forensic strategy, based on instructions. Nor did the applicant seek to deny that inference.

As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [10], "[t]o the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process." That is to say, whether counsel has acted according to or in contravention of the advocates' ethical rules, and why, is not in issue, unless it explains some objective feature in a way which establishes or discounts a miscarriage. The affidavit from trial counsel sought to be relied upon by the Director on the appeal was intended to deny the existence of a miscarriage. However, as will be explained below, it took the matter of miscarriage no further than the inferences available from the course of the trial. Otherwise, it sought to respond to an issue which was not in dispute. It should be rejected.

Challenge to initial cross-examination

The only basis upon which counsel's initial cross-examination could form the basis of a miscarriage was if, exercising his responsibility to conduct the trial as best he could on the material available, in the interests of the accused, and regardless of the express instructions of the accused, he should not have embarked upon the line of cross-examination at all.

The strategy was, as the trial judge pointed out on more than one occasion, fraught with risk and difficulties. Nevertheless, it was not irrational and if, as the applicant instructed, the complainant had manufactured false and damaging accusations against the applicant in order to prevent him obtaining custody of, or indeed access to, their child, it was open to him to contend before the jury that the allegations of sexual assault were also fabricated. One would assume it was not embarked upon in the face of clear instructions not to pursue it: the affidavit from counsel did not contradict this assumption.

In the present circumstances, the objective features, as set out above, may cast doubt on the wisdom of the approach adopted, but do not render it demonstrative of such incompetence as would cause a miscarriage, particularly when carried out in accordance with the instructions of the accused. If, objectively assessed, the cross-examination was an available forensic strategy, neither it nor the consequent failure to apply for a discharge of the jury gave rise to a miscarriage of justice.

Further cross-examination after change in instructions

On the basis of the events recounted above, one may readily infer that the accused's instructions to his counsel changed when the prosecution sought to subpoena his records from the Campbelltown Mental Health Service. The records were in fact not subpoenaed and their content is not in evidence. All that matters for present purposes is that the applicant apparently gave instructions to counsel conceding that the conversations which the complainant had referred to in her application for an AVO had in fact occurred. The change in instructions undoubtedly created a strategic dilemma for counsel, and possibly an ethical dilemma.

Although there was some discussion in the course of the hearing in this Court as to counsel's ethical obligations, those did not appear to arise from the objective circumstances of the course of the trial. Such a dilemma may have occurred if the applicant had given instructions requiring counsel to continue to pursue an allegation that the complainant had fabricated part of her application for an AVO, whilst acknowledging to counsel that this was not so. However, there was no indication that any such instructions had been given. Accordingly, the matter resolved itself into a strategic issue for counsel as to how to continue the trial to the best advantage of his client, given the change in instructions. In these circumstances the material in the affidavit as to the advice received by counsel as to his ethical duties and his subjective thinking is immaterial and need not be addressed. The balance of the affidavit should be rejected. As the course of submissions demonstrated, it was calculated to raise a false issue, which it did.

Thereafter, it was not open to counsel to seek to rely upon some inherent implausibility in the complainant's evidence with respect to the conversations regarding intrusive thoughts about children; he was bound to accept the complainant's denials of fabrication in that regard. Again, that appears not to have been in dispute. The problem for the accused was that, having opened up these allegations as a basis for attacking the credit of the complainant, he had not only failed in that attempt (and may even have bolstered her credibility) but had also cast himself in a bad light. In these circumstances, counsel took a step which was, like the first step, risky and fraught with difficulty. Rather than leave the jury with the impression that the accused harboured paedophilic desires, he sought to defuse the issue by placing them in the context of his own abuse and his wish to overcome, rather than succumb to, the intrusive thoughts.

Again, that was not an irrational strategy. The problem was the vehicle. As the trial judge quickly realised, the complainant was not providing answers which were supportive of the explanation which counsel was seeking to pursue. However, whatever the wisdom of the forensic strategy, it may be inferred that the factual basis was to be found in instructions from the applicant. The applicant did not seek to suggest otherwise.

There remains the issue whether the further questions and answers demanded an application for discharge. However, apart from the confirmation that the conversations between the accused and the complainant took place, and that he had discussed with her his intrusive thoughts about children, including his own son, it is difficult to see that any significant further damage was done. The fact that he had been sexually interfered with by his uncle was not denied, although the complainant said there was "a lot more to it than that." When asked whether he felt "repulsed" by having these thoughts, she simply declined to answer such questions further. The judge's direction was immediate and in terms which are not the subject of any criticism. No further direction was sought. No issue was raised in this Court as to any aspect of the final directions given to the jury. In these circumstances, it is at least doubtful as to whether there was any sound basis for an application that the jury then be discharged.

Such doubts are confirmed by the overall circumstances of the trial. The most substantial harm had been caused by the fact of the initial cross-examination followed by the retraction of the instructions on which it was based. In this sense, the accused was the author of his own difficulties. Once it is accepted, as explained above, that the line of cross-examination had a rational basis and was not improper, there was no obligation on counsel to decline to conduct the trial on that basis. A baseless attack on the complainant's creditability failed, no doubt with the common consequence in such circumstances that her credibility was probably enhanced in the eyes of the jury. The further result was that the accused was revealed as someone who harboured paedophilic desires. However, it was not the applicant's case that in such circumstances there could be no fair trial: rather, his case depended on the manner in which the prejudice arose, namely through the incompetence of counsel in pursuing his instructions. That complaint has not been made good.

Conclusion on conviction

The ground of appeal alleging miscarriage of justice has not been made out. The appeal against conviction should be dismissed.

Director's appeal against sentence

The Director of Public Prosecutions appealed against the leniency of the sentence, pursuant to Criminal Appeal Act, s 5D. For the reasons given by Adams J, I agree the sentence imposed was unduly lenient, that the Court should intervene to increase the sentence and with the sentence proposed.

ADAMS J:

Introduction

Note: Since the applicant in the conviction appeal is the respondent in the sentence appeal, for simplicity I refer to him as the "offender".

I have had the advantage of reading the judgment of Basten JA, who concluded that the appeal against the offender's convictions should be dismissed. I respectfully agree with his Honour's conclusion, but for somewhat different reasons, disagreeing with his Honour as to the admissibility, relevance and significance of the affidavit of Mr Taylor.

The context in which this issue arises has been comprehensively set out by Basten JA and it is therefore not necessary to do more than make some short reference to them. Mr Taylor states, in his affidavit, that his cross-examination of the complainant in respect of her statement to the police in support in her application for an AVO that she had "fabricated all of the allegations that are the subject of [the] statement" was made pursuant to specific instructions denying, in particular, the allegation that the offender had said that he "had sexual thoughts about children and your son". One would readily accept that an allegation of this kind was based on the offender's instructions to that effect. As Basten JA points out, it may be inferred that the offender's instructions changed when the likelihood arose that the records from the Campbelltown Mental Health Service would be produced and, potentially, disclose that he had in fact made statements consistent with those attributed to him by the complainant. Mr Taylor's affidavit discloses that, following the Crown's application for the subpoena, the offender disclosed to him "that the records sought by the Crown were indeed likely to reveal that he had discussed with the complainant and a counsellor that the offender had a sexual interest in children, including the children of the union... [and] conceded that he had lied... to [Mr Taylor] and his solicitors". Of course, as the extracts from the transcript set out in the judgment of Basten JA demonstrate, this was in substance what Mr Taylor had intimated to the learned trial judge and which, in effect, was disclosed to the jury by his Honour soon afterwards.

It is evident from Mr Taylor's affidavit that he took the view that he was ethically obliged to withdraw the allegation of fabrication which he had made to the complainant. As a result -

"I specifically cautioned the [offender] that if I was to stay in the matter, I was under an obligation to correct the lie. The [offender] was advised of his option of terminating my services (and that of his solicitors). The [offender] was advised that if I continued in the matter and the lie had to be corrected it would be likely that he would be found guilty. The subject of a discharge of the jury was discussed in the context of the [offender] seeking a discharge upon terminating his representatives. Reference was made to the marks of the trial judge T173:23 "...at this stage I would be very loathe to discharge the jury" and T173:42 "... anyway, so the position is that I am probably unlikely to abort the trial even if it does mean that he has to go on unrepresented and even if it does mean that I have to find somebody else other than legal representatives to be his spokesperson and ask questions."

I interpolate that Mr Taylor said that he had consulted a senior counsel, who had sat on the Bar Association Ethics Committee for 10 years, about his position were the offender to instruct him "not to disclose the lie". In short, his advice to his client accorded with what he had been advised by this senior counsel. However that may be (and Mr Taylor does not state precisely what he disclosed to the person he consulted) it is clear that his view of his ethical position and, consequently his advice to his client was quite wrong. As the matter stood, Mr Taylor had put to the complainant that she had fabricated an allegation made by her to police, which she denied. At the time the question was asked, Mr Taylor had acted properly, as it accorded with his instructions as they then stood. There was therefore no "lie" to be corrected. What counsel puts to a witness is not, and cannot be regarded as, evidence and it should be expected that, in due course, the trial judge would have explained this to the jury. Thus, the matter before the jury would be that the allegation had been put and the only evidence on the point was that it was untrue.

The New South Wales Barristers' Rules, not surprisingly, focus on the ethical obligations of barristers. As they make clear, it is a fundamental principle that "barristers owe their paramount duty to the administration of justice" (rule 5(a)) and "must act honestly, fairly, skilfully and with competence and diligence" (rule 5(c)) and see rule 12). Rule 27 provides that a "barrister must not deceive or knowingly or recklessly mislead the court" and rule 27 states -

"A barrister must take all necessary steps to correct any misleading statement by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading".

Of particular relevance is rule 78, which is as follows -

"A barrister who, as a result of information provided by the client or a witness called on behalf of the client, is informed by the client or by the witness during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:

(a) has lied in a material particular to the court or has procured another person to lie to the court; or

(b) has falsified or procured another person to falsify in any way a document which has been tendered; or

(c) has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;

must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the 15 barrister to do so but otherwise may not inform the court of the lie, falsification or suppression."

It will be seen that rule 78 did not apply to the situation here, since neither Mr Taylor's client nor any witness called on his behalf had lied. Nor, in my view, is a question asked on instructions (even if, at a later stage, those instructions are significantly changed) a "statement made by the barrister to a court" under rule 27). It is true, of course, that a statement which is made to the court, truthful at the time it was made, may become misleading because of further information of which the barrister becomes aware and, accordingly, will require correction under this rule. However, it is fundamental, as it seems to me, that a question to a witness, even if it implies a fact which subsequently the barrister discovers to be untrue, is not such a statement as requires correction. Of course, once his instructions had changed, it would not have been proper for Mr Taylor to have conducted the case, whether by further cross-examination of the complainant or otherwise, on the basis of his earlier instructions.

It seems to me, therefore, that Mr Taylor's advice to his client about the position was plainly wrong. He was not bound to give up the brief if the offender had refused to instruct him to inform the judge and jury of the change in instruction; to the contrary, he was ethically obliged to continue to represent the offender even if those instructions were not forthcoming, providing of course, the offender did not instruct him to conduct the case in any way inconsistent with the later disclosure. I should also point out, by the way, that although Mr Taylor was obliged to inform his client of the step that he proposed to take, his client's permission was not necessary. Counsel are not under an ethical (or other) obligation to conduct a case as the client wishes it to be conducted or, conversely, not to conduct the case as the client wishes it not be conducted. If the client does not like the way counsel conducts the case, the retainer can be withdrawn. This is an essential characteristic of counsel's independence.

There can be little doubt that the course taken by Mr Taylor was highly prejudicial since, not only did it amount to an admission by the offender that he had the sexual interest which, the complainant said, is what drove her to resume the relationship but it also confirmed the complainant's credibility, which was fundamental to the prosecution case.

I am, with respect, unable to agree with Basten JA's view of the affidavit of Mr Taylor. Firstly, it seems to me that it does take the matter considerably further than the inferences available from the course of the trial in the sense that, although it explains there had been a change of instructions (a matter which could be inferred from the course Mr Taylor took), it also explains why he took that course. In Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301; 22 ALR 161, where the ground of the offender's appeal was based, in part, on an attack on the competence of his counsel at trial, the issue of the appropriate approach to a ground of appeal based upon such a complaint was discussed extensively by Gleeson CJ, whose starting point was that the crucial issue is whether there had been a miscarriage of justice and that, in such a case -

"[8] ... the appellate court is primarily concerned with what happened at, or in relation to, the trial of the offender; an investigation of why it happened is ordinarily irrelevant, and often impractical. ... [W]here the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred. [Emphasis added.]

[9] ... As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct."

His Honour noted, however, that on some occasions, the Court of Criminal Appeal in New South Wales receives evidence from trial counsel to explain, for example, the circumstances of a failure to object where, because of rule 4 of the Criminal Appeal Rules, leave of the Court of Criminal Appeal is necessary and it is sought to appeal from conviction on the basis of the matter to which objection should have been but was not taken [ibid at 10]. His Honour explained why an examination of the reasons for the impugned conduct of counsel might be problematic, going on to say, however -

"... Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel.

...

[17] There will be some cases in which it is not possible to decide whether injustice has occurred without knowing why a particular course was taken at trial. To take an extreme example, if an accused person failed to give evidence because counsel wrongly advised that an accused is not entitled to give evidence, it is difficult to imagine that a court of criminal appeal would not intervene. The example shows that, although, as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective, one cannot eliminate the possibility of exceptional cases in which it is relevant to know why a certain course was or was not taken."

In this case, it is true that the course taken by Mr Taylor was in accordance with his instructions but those instructions were given on the basis of wrong advice and, it is reasonable to infer, only because he threatened to withdraw, leaving the offender, almost certainly, to continue the case without representation, as the judge had previously intimated might occur if counsel withdrew. Unless the affidavit were admitted, the true position would remain, not only unknown, but the objective circumstances would be significantly misleading. Accordingly, I respectfully differ from Basten JA in respect of the admissibility of the affidavit as to the reasons for Mr Taylor taking the course that he did and the cogency of that evidence.

Otherwise, I should make it clear that I agree with the view of Basten JA as to the initial cross-examination of the complainant that, fraught as it was, it was an available forensic strategy with a rational basis. I also agree that the failure to apply for a discharge of the jury could not give rise in the circumstances to a miscarriage of justice. Indeed, I do not think that such an application could have succeeded. Moreover, having taken the step of correcting the jury's understanding of his client's case, Mr Taylor had no real option but to diffuse the issue in the way he did which was, again, as Basten JA has said, not an irrational strategy. I agree also that those further questions and answers could not justify discharging the jury and, accordingly, counsel cannot be criticised for not making such an application.

The crucial question, as I have already mentioned, is whether the conduct of counsel gave rise to a miscarriage of justice. In the circumstances here, no miscarriage of justice arose, since it is clear that the Crown would have succeeded in obtaining the relevant records (assuming, as seems reasonable, that they were available and would have been produced) which, as the offender expected, would have established the truth of the complainant's evidence and the falsity of what had been put to her. Even absent Mr Taylor's mistake about his ethical position, it would have obviously been preferable for him to disclose the facts as he did than have them, as it were, roll over him when the documents were produced. However that may be, it is evident that the jury would have become aware, one way or another of the falsity of the offender's position on this matter. There was thus no escaping the prejudicial consequences of the question which the offender's lie had produced. It follows that the mistaken advice of counsel was inconsequential and no miscarriage of justice arose out of his conduct.

Accordingly, I agree with Basten JA that the appeal against conviction must be rejected.

Sentence Appeal

Introduction

The offender was convicted on 23 November 2012 on fifteen counts of sexual intercourse without consent, contrary to s 61I (maximum term of 14 years imprisonment and a standard non-parole period of 7 years) and two counts of indecent assault contrary to s 61L (maximum term of 5 years imprisonment) of the Crimes Act 1900 (NSW). He was sentenced on 28 March 2013 as follows:

Count

Offence

Sentence

20

s.61I. Sexual intercourse without consent (4th episode, digital/vaginal).

3 years 6 months, 2 years non-parole period from 6.6.12.

17

s.61I. Sexual intercourse without consent (3rd episode, digital/vaginal).

3 years 6 months, 2 years non-parole period from 6.9.12.

18

s.61I. Sexual intercourse without consent (3rd episode, penile/vaginal).

5 years, 3 years non-parole period from 6.9.12.

15,16

s.61I. Sexual intercourse without consent (2nd episode, cunnilingus, fellatio).

4 ½ years, 2 years 6 months non-parole period from 6.12.12 to 5.6.15.

14

s.61I Sexual intercourse without consent on (2nd episode, penile/vaginal).

5 years, 3 years non-parole period from 6.12.12.

3,11

s.61L. Indecent assault

(1st episode licking anus x 2).

12 months fixed term from 6.6.13.

2,6,10

s.61I. Sexual intercourse without consent (1st episode, cunnilingus, fellatio, cunnilingus).

4 ½ years, 2 years 6 months non-parole period from 6.6.13.

4, 5, 9,12, 13

s.611. Sexual intercourse without consent

(1st episode, penile/vaginal x 5).

5 years, 2 years 6 months non-parole period from 6.6.13 to 5.12.15.

8

s.611 Sexual intercourse without consent (1st episode, penile/anal)

6 years, 3 years non-parole period from 6.6.13.

The total effective sentence is 7 years commencing on 6 June 2012 with a non-parole period of 4 years. The Director of Public Prosecutions appeals against the effective sentence on the ground that it is manifestly inadequate.

Facts

For present purposes, these are not in issue and the following account is largely taken from the sentencing judge's remarks on sentence. His Honour summarised the position as follows -

The allegations made by the complainant from counts 2 through to 20 occurred literally throughout the night and over a relatively long period. Count 2 relates to an allegation of sexual intercourse by cunnilingus. Count 3 was an indecent assault which was that the offender licked the anus of the complainant. Counts 4 and 5 each related to penile/vaginal intercourse. Count 6 was fellatio... count 8 related to penile/anal intercourse. Count 9 was penile/vaginal intercourse. Count 10 was again intercourse by way of cunnilingus. Count11 was another instance of an indecent assault ... involving the licking of the anus. Counts 12 and 13 both related to penile/vaginal intercourse.

Those counts 2 through to 13 are what have been categorised as the counts that constituted the first episode.

The second episode in time relates to counts 14, 15 and 16. Count 14 was penile/vaginal intercourse. Count 15 was intercourse by way of cunnilingus and count 16 was intercourse by way of fellatio ...

The third episode relates to counts 17 and 18, count 17 being intercourse by way of digital/vaginal penetration and count 18 being penile/vaginal intercourse.

The fourth episode related to the one incident, although it originally had two counts, namely counts 19 and 20, on the basis that count 20 was an alternative ... to count 19 if the jury were not satisfied of the aggravating factor of deprivation of liberty, which they were not.

... This incident occurred ... over a long period of time and there were many observations made by the offender in things said by the complainant [indicating that she did not consent]. There were physical acts such as her crying and resisting and complaining that she was being hurt, for instance, the physical grabbing of her hair to encourage her to suck his penis, and before count 8, the allegation in relation to penile/anal intercourse, the offender said, "I am going to put it up your arse" and she responded, "Please, no, it's really going to hurt", and she started crying.

So far as the respondent's knowledge is concerned, the judge was satisfied beyond reasonable doubt that the respondent knew that the complainant was not consenting, although his Honour also accepted that "he perhaps was not in the best state of mind and there may have been some issue of recklessness at least at the start ... It is clear to me that her actions and what she said, together with his observations, establish that he clearly knew, fairly early on, that she was in fact not consenting".

The judge noted that, at the time of the offences, the complainant was eight weeks pregnant, which added to the objective seriousness of the offences, committed in the context of an ongoing, relatively violent domestic relationship. There was a threat to kill with the offender proceeding notwithstanding the complainant pleaded with him to stop and that, at times, he did so in the presence of his two and a half years old son. A number of the sexual acts were accompanied by humiliating and degrading conduct including the offender watching the complainant urinate, pretending he was having sex with her sister and calling her by her sister's name and forcing the complainant to make derogatory comments about her own mother, such as, "Say you're a slut like your mum".

The complainant's evidence (which the sentencing judge accepted as truthful and reliable) was that she and the respondent, together with their son, were staying in a cabin with two bedrooms in a caravan park at Bateau Bay. During the early evening of 19 August 2010 the offender left and returned sometime later with a cask of wine. In the meantime, the complainant had gone to sleep in the main room with their son. After a while, he woke the complainant, grabbed her by her arm and pulled her out of bed saying, "We're going to have sex". The complainant told him to leave her alone. The offender tried to pull her out of the room and she planted her feet on to the ground to resist him and burst into tears. The description of the offences is sufficient for present purposes and it is unnecessary to relate the precise details of what happened. The sexual assaults continued into the morning until, eventually, the offender left the cabin. The complainant contacted police to attend at a short time later and she and her son were transferred to Gosford Hospital.

The offender was located by police at Wyong Hospital at about 1 pm after he left the complainant. He had been seen by a Dr Anand, who found no evidence of any thought disorder and concluded that the respondent was not showing any signs of mental illness and he was released into the custody of police.

In summarising the objective seriousness of the offences the sentencing judge noted that the respondent had threated to kill the complainant, that a child was present whilst counts 17, 18 and 20 were being committed and, at the time, the offender was the subject of an apprehended violence order directed to protecting the complainant. On the other hand, the sentencing judge accepted that this was not planned conduct but rather a "spontaneous reaction to a given set of circumstances which seem to have then grown a life of their own". His Honour accepted that there might have been a level of intoxication which might provide some explanation, but no excuse, for the offender's conduct. His Honour noted that there was no evidence of actual physical injury and that the threat to kill "may simply have been rhetorical". His Honour also accepted that "the complainant may have elected to adopt a line of least resistance, given their history together... and that, despite her lack of consent, his physical superiority meant that she would be unlikely to stop him and, ultimately, a line of least resistance was in her best interests in terms of minimising any physical harm". As is unsurprising in cases of this kind, however, the complainant continues to suffer significantly from the terrible experience to which she was subjected by the respondent.

Subjective features

The offender was 27 years of age at the time of the offences. He had no prior criminal convictions and was a person of good character. Mr Borenstein noted he had received extensive psychiatric treatment, including both inpatient and outpatient care since 2007, having been diagnosed as suffering from Schizoaffective Disorder, Major Depression, Psychosis and Obsessive Compulsive Disorder. He had his first contact with a psychiatrist at the end of 2006, feeling suicidal, and was admitted to Waratah House for a month and then moved to a mental health unit for young adults where, as it happened, he met the complainant. Mr Borenstein noted that the offender had received therapy in one form or another since 2007 and a variety of medications, "on and off since 2008". He told Mr Borenstein that he came off his medicines in April/May 2011 upon release from gaol on bail. In his limited evidence in the sentence proceedings the respondent said he ceased to take his medication because it made him feel dull and doing so made him feel better. He started a bridging course in 2011 at TAFE and said he was accepted into Hawkesbury University to study natural science.

I do not intend to set out the history the offender gave concerning either his relationship with the complainant or as to the offences, since he denied his guilt, asserting that the accusations made by the complainant were designed to prevent him from being involved in her life and the care of their son. He told Mr Borenstein that, however, at the time he was having paranoid thoughts which made him anxious and depressed.

The offender had attempted to commit suicide by taking an overdose of Risperidone in 2008 and was taken to hospital by his parents. Mr Borenstein said that, on examination, he presented as cooperative, quietly spoken and polite with somewhat flat and restricted affect. There was no evidence of depressed mood or psychotic symptomatology. He denied thoughts of suicide or self-harm and his thoughts, both as to content and process, were normal. There was no evidence of perceptual disturbance and he presented as cognitively intact.

Hospital notes alluded to the offender being the victim of sexual assault as a child and as having a long history of depression and anxiety with poor self-esteem, poor impulse control, self-harm, aggressive behaviour towards others and feeling this way since the age of eight or 10. Mr Borenstein relates his history of presentation to Campbelltown Emergency Department in March 2009, where he was admitted as a voluntary patient at the sub-acute unit and given medication, being discharged in mid-April 2009 with gradual improvement in mood. He was admitted again for three weeks on 16 April 2010 with a likely diagnosis of treatment resistant schizoaffective disorder. Dr Borenstein noted, in conclusion, that the offender -

"has struggled with a long standing and chronic psychiatric disorder, namely schizoaffective disorder with major depression (recurrent type), anxiety and obsessive compulsive disorder. [He] relates a history of low impulse control, aggression, suicidal ideation and some intent.

Mr Ahmu says his mental health was deteriorating in the weeks leading up to the day the offence was alleged to have occurred."

Mr Borenstein thought the offender displayed "good insight, which leads him to seek treatment early so as to prevent major relapses of the sort that has impacted on [his] life circumstances". He thought he responds favourably to structure and routine of the sort he had in the hospital setting and in the prison environment, that he had been compliant with regards to treatment recommendations, in particular the psychological treatment/strategies provided to him by a psychologist. Mr Borenstein thought his "prospects for rehabilitation are sound, strengthened by good insight into the nature of his illness". He thought that the respondent would require ongoing psychiatric monitoring and, in particular, psychological treatment to which he is responsive over the next two to three years.

In addition to Mr Borenstein's report a presentence report was tendered, the contents of which were noted by the sentencing judge. It is unnecessary to refer to it for present purposes except to note that he asserted his innocence.

The offender had been in custody from 20 August 2010 to 6 February 2011, when he was released on bail. Accordingly, the first sentence to be served was backdated to 6 June 2012. The sentencing judge also took into account the fact that, when not in custody, the offender was on strict bail conditions, including reporting conditions, initially 3 times a week, then once a week and he was subject to a curfew for "a fair portion of his time on bail".

In relation to the offender's mental health, the sentencing judge did not accept that there was a direct causal link between those problems and the criminal conduct but considered that they were likely to make his custody harsher and indicated he would need a longer than normal period on parole. His Honour also said, "They probably provide some explanation for his conduct. Notwithstanding that there is no direct causal link; it is clear that his mental health issues did contribute to the way in which he behaved or reacted on this particular evening". His Honour concluded that the respondent's mental health "to some degree... moderates the need to reflect general deterrence in this particular sentence."

There are many favourable testimonials from family, friends and church contacts, as well as TAFE teachers and vocational friends. He has the support of his family.

Discussion

As I have mentioned, the Crown appeal depends upon the submission that the sentence was manifestly inadequate. No particular error is identified. Broadly speaking, it is submitted that, having regard to the maximum penalty of 14 years and the standard non-parole period of 7 years, the relevant objective and subjective considerations demonstrate that the sentences for each s 61I offence is manifestly inadequate. So far as the s 61L offences are concerned (counts 3 and 11), each is also submitted to be manifestly inadequate having regard to the maximum penalty of 5 years applicable to these offences in the light of the other relevant objective and subjective considerations. It is submitted also that, when the multiplicity and distinct character of the various offences and their successive commission over a lengthy period of time is taken into account, the accumulation which resulted in the total effective sentence of 7 years with a non-parole period of 4 years did not reflect the totality of criminality involved.

A number of decisions both of this Court and in the High Court of Australia have dealt with the particular approach which is appropriate to Crown appeals against sentence: see, for example R v Lee [2014] NSWCCA 78; R v Mereb; R v Younan [2014] NSWCCA 149; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. As McCallum J (with whom Bell JA and Johnson J agreed) said, in R v Ferrer [2008] NSWCCA 104, citing R v Baker [2000] NSWCCA 85 per Spigelman CJ at [19] -

"... successful Crown appeals should be rare and ... this is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred."

Mr Pararajasingham, counsel for the offender, has set out in his written submissions a table of appeals against sentences imposed for similar offences decided in this Court. They demonstrate a range of sentences which does not, to my mind, usefully inform the present appeal except in the most general terms. In particular, it appears none of the cases involved the extensive, repetitious and humiliating sexual abuse to which the complainant here was subjected by the offender, made particularly painful for her because of the presence at times of her two year old child.

Conclusion

The sentencing judge noted, apparently as a mitigating feature, that the complainant was not injured. However, that she was not physically injured is of little moment. The offender was not charged with aggravated sexual intercourse under s 61J, which involves the infliction of actual bodily harm. The standard non-parole period for an offence under s 61I is seven years imprisonment. Adapting the language of the Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 at [32], that circumstance says a great deal about the appropriate sentence for the offences in this case. The gross, repeated attacks on the personal integrity of the complainant over an extended period by the offender, who well understood what he was doing even given his (limited) mental issues and the possible effects of drinking, combined with deliberate additional humiliation and a callous indifference even to the distressing (for the complainant) presence of their young son at times, reached a level of objective seriousness that must fall into the middle of the range (accepting this to be incommensurable) and bring the standard non-parole period into sharp focus as a yardstick.

With respect, making every allowance for the wide discretion available to his Honour and giving full effect to the offender's favourable subjective features, it seems to me that the overall sentence demonstrates that the sentencing judge either misapprehended the significance of the standard non-parole period or underestimated the objective seriousness of the offences. Put otherwise, the manifest inadequacy of, at least, the overall sentence as reflecting the totality of the offender's criminality demonstrates that some error of principle must have occurred within the meaning of House v The King (1936) 65 CLR 499. In my view, the appropriate sentence could be no less than 9 years and 6 months with a non-parole period of 6 years and 6 months, allowing additional time on parole because of the need for extended supervision arising from the offender's mental problems. Although the ratio of this proposed parole period to overall sentence is less (slightly over 30 per cent as compared to just over 40 per cent), the parole period remains the three year term determined by the sentencing judge to be appropriate.

It is, therefore, necessary to consider the residual discretion of the Court to decline to interfere with the sentence despite this conclusion. In Green v The Queen (where the offences concerned the cultivation of a substantial crop of cannabis plants), the principal question concerned the significance of different sentences that had been imposed on co-offenders of the appellants and whether parity principles required adjustment of their sentences. (I have included the discussion as to parity, although that is, of course, not an issue in the present appeal, because it informs, in my respectful opinion, the significance of the character of a Crown appeal, as distinct from an offender's appeal, against sentence.) French CJ, Crennan and Kiefel JJ said (omitting most references) -

[35] In a Crown appeal against sentence in New South Wales, the Court of Criminal Appeal is invariably asked to exercise its powers under s 5D of the Criminal Appeal Act to impose upon a convicted person a heavier sentence than that imposed by the primary judge. Assuming the Court of Criminal Appeal considers the sentence under appeal to be inadequate on account of error by the primary judge, two questions arise. Their answers involve the exercise of the different discretions conferred by s 5D. They are:

1. Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from.

2. To what extent, if the appeal is allowed, the sentence appealed from should be varied.

[36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.

[37] The parity principle has been the focus of debate in these appeals. Its undisputed significance does not mean that the Court must dismiss a Crown appeal in every case in which allowing the appeal would give rise to disparity. Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender. The question would then arise: would the purpose of Crown appeals under s 5D be served by allowing the appeal? If the result of doing so would be a sentence "adequate" on its face, but infected by an anomalous disparity which is an artifact of the Crown's selective invocation of the Court's jurisdiction, the extent of the guidance afforded to lower courts may be questionable. As was said in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at 18 [70] -

"[T]he purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong."

...

[43] Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."

The written submissions filed on behalf of the offender said that it was intended to read affidavits to demonstrate that the rehabilitation of the respondent "is well underway which would warrant this Court to exercise its discretion in this way [by not intervening]". In the result, however, no such affidavits were read. One difficulty facing the offender in this regard is that, as I have mentioned, his position up to being sentenced (and apparently unchanged) was that he was innocent of the charges for which he was convicted. Since the criminal conduct to which the offender's rehabilitation must be principally directed concerns the risk he poses of repeating offences of this kind on his release, the lack of acceptance of the nature of his wrong doing, as a precursor to genuine remorse, is troubling. It is nevertheless relevant to take into account the fact that the respondent has now served almost 2 years and 6 months of his sentence and will be eligible for parole, according to the present sentence, in approximately 18 months.

It seems to me, as well, that it is important as a matter of principle, to emphasise the significance of the standard non-parole period as a marker or indicator in a case within the middle of the range (broadly defined) of objective seriousness. It has been frequently said in this Court, in substance, that the determination of the objective seriousness of the offence is an evaluative judgment upon which reasonable minds might well differ and it is important that this Court should not substitute its view simply because it differs from that of the sentencing judge. Of course, I entirely accept that this must be so. However, in some cases, such as the present, the assessment of objective seriousness as reflected in the sentences, bearing in mind that they represent an instinctive synthesis of all the relevant factors, including subjective features, so far departs from an appropriate measure (with respect) that it demonstrates error and should be corrected for the purposes not only of the present appeal but other like cases. This leaves alive the question, however, whether a statement to this effect by this Court suffices, without taking the step of increasing the offender's sentence.

In considering the exercise of the residual discretion, it is appropriate in my view to bear in mind - in terms not usually used but implicit in sentencing for offences such as the present - the need to do justice to the victim, so appallingly dealt with, whose vindication is part of the function of the administration of criminal justice. This applies with particular force in cases of so-called domestic violence, where there seems to often be present in offenders a degree of self-justification as if, in some way, the victim (to use the vernacular) had it coming. I do not say that this was specifically the offender's state of mind in the present case but the facts strongly suggest that he thought he had some kind of right to do what he did. This aspect of domestic violence emphasises the importance, to my mind, of general deterrence, as well as the protection of the community, especially women, who are far too often the victims of this attitude. These considerations also underline the importance of denunciation.

To my mind, the interests of justice in this case require more than mere statement of principle but mandate the resentencing of the offender.

Proposed orders

Although I am of the view that the individual sentences for the s 61l offences, particularly those in the first episode, are inadequate when considered individually, it seems to me that the simpler and not inappropriate course is to vary the extent of accumulation to reflect the totality of criminality. I therefore propose that the non-parole periods and head sentences remain unchanged but that the commencement dates be varied as follows -

1. The commencement date of the sentence on Count 20 is unchanged.

2. The sentence on Count 17 is to commence on 6 December 2012.

3. The sentence on Count 18 is to commence on 6 June 2013.

5. The sentences on Counts 15 and 16 are to commence on 6 December 2013.

6. The sentence on Count 14 is to commence on 6 June 2014.

7. The sentences on Counts 3 and 11 are to commence on 6 June 2014.

8. The sentences on Counts 2, 6 and 10 are to commence on 6 December 2014.

9. The sentence on Counts 4, 5, 9, 12, and 13 are to commence on 6 June 2015.

10. The sentence on Count 8 is to commence on 6 December 2015.

The overall effective sentence therefore consists of a non-parole period of 6 years 6 months commencing on 6 June 2012 and a head sentence of 9 years 6 months. The offender will become eligible to be considered for release on parole on 5 December 2018.

FULLERTON J: I have read the judgments of Basten JA and Adams J and agree with their Honours that the appeal against conviction be dismissed. I also agree with Adams J that the Crown appeal against the aggregate sentence should succeed as I do with the orders his Honour proposes on re-sentence.

Since the admissibility of the affidavit of Mr Taylor, an issue upon which their Honours had differing views, was not ultimately essential to the disposition of the appeal against conviction, their Honours being in agreement that there was nothing in the conduct of counsel that gave rise to a miscarriage of justice (a conclusion with which I agree), it is unnecessary that I express any concluded view on the question.

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Amendments

07 January 2015 - corrected decision date

Decision last updated: 08 January 2015

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Citations

Ahmu v R [2014] NSWCCA 312

Most Recent Citation

Faris v Savage (No 2) [2020] ACTSC 219

Cases Citing This Decision

20

Grey v The Queen [2022] ACTCA 2

Tully v The Queen [2016] ACTCA 4

R v Matthews [2023] NSWDC 611

Cases Cited

8

Statutory Material Cited

5

R v Nudd [2004] QCA 154

Nudd v The Queen [2006] HCA 9

Medium Neutral Citation:	Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Hearing dates:	20 August 2014
Decision date:	15 December 2014
Before:	Basten JA at [1]; Adams J at [43]; Fullerton J at [86]
Decision:	In Ahmu v R: 1. Grant the applicant an extension of time within which to seek leave to appeal from his convictions. 2. Grant the applicant leave to appeal. 3. Dismiss the appeal. In Director of Public Prosecutions v Ahmu: 1. Allow the appeal. 2. Without varying the non-parole periods and head sentences, vary the commencement dates as follows so that the sentences - (a) on Count 17 commenced on 6 December 2012; (b) on Count 18 commenced on 6 June 2013; (c) on Counts 15 and 16 commenced on 6 December 2013; (d) on Count 14 commenced on 6 June 2014; (e) on Counts 3 and 11 commenced on 6 June 2014. (f) on Counts 2,6 and 10 commenced on 6 December 2014; (g) on Counts 4, 5, 9, 12, and 13 are to commence on 6 June 2015; (h) on Count 8 is to commence on 6 December 2015. The overall effective sentence therefore consists of a non-parole period of 6 years 6 months commencing on 6 June 2012 and a head sentence of 9 years 6 months. The offender will become eligible to be considered for release on parole on 5 December 2018.
Catchwords:	CRIMINAL LAW - appeal against conviction - miscarriage of justice - competence of counsel - instructions to cross-examine complainant that she had fabricated allegations the accused had expressed a sexual interest in children - further instructions that allegations true after prosecution sought to subpoena accused's medical records - whether the cross-examination was an available forensic strategy - whether failing to seek a discharge of the jury gave rise to a miscarriage of justice - whether evidence of communication between counsel and accused properly revealed CRIMINAL LAW - Crown appeal against sentence - offender convicted of multiple counts of sexual and indecent assault against the complainant - sentenced to seven years imprisonment with a four year non-parole period - whether sentence manifestly inadequate - failure to assess properly the objective seriousness of the offences - failure to recognise the significance of the standard non-parole period - whether residual discretion to decline to interfere with inadequate sentence
Legislation Cited:	Crimes Act 1900 (NSW), ss 61I, 61L Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6 Criminal Appeal Rules, rr 3B, 4 Criminal Procedure Act 1986 (NSW), s 159 New South Wales Barristers' Rules, rr 5, 12, 27, 78
Cases Cited:	Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v The King (1936) 65 CLR 499 Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301; 22 ALR 161 R v Baker [2000] NSWCCA 85 R v Birks (1990) 19 NSWLR 677 R v Ferrer [2008] NSWCCA 104 R v Lee [2014] NSWCCA 78 R v Mereb; R v Younan [2014] NSWCCA 149
Category:	Principal judgment
Parties:	Owen Jared Ahmu (Applicant) Regina (Respondent)
Representation:	Counsel: Mr S Parajasingham (Applicant) Mr P Ingram SC (Respondent) Solicitors: Nyman Gibson Stewart (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
File Number(s):	CCA 2010/277205
Decision under appeal	Jurisdiction: 9101 Date of Decision: 28 March 2013 Before: Ellis DCJ File Number(s): 2010/277205

Count	Offence	Sentence
20	s.61I. Sexual intercourse without consent (4th episode, digital/vaginal).	3 years 6 months, 2 years non-parole period from 6.6.12.
17	s.61I. Sexual intercourse without consent (3rd episode, digital/vaginal).	3 years 6 months, 2 years non-parole period from 6.9.12.
18	s.61I. Sexual intercourse without consent (3rd episode, penile/vaginal).	5 years, 3 years non-parole period from 6.9.12.
15,16	s.61I. Sexual intercourse without consent (2nd episode, cunnilingus, fellatio).	4 ½ years, 2 years 6 months non-parole period from 6.12.12 to 5.6.15.
14	s.61I Sexual intercourse without consent on (2nd episode, penile/vaginal).	5 years, 3 years non-parole period from 6.12.12.
3,11	s.61L. Indecent assault (1st episode licking anus x 2).	12 months fixed term from 6.6.13.
2,6,10	s.61I. Sexual intercourse without consent (1st episode, cunnilingus, fellatio, cunnilingus).	4 ½ years, 2 years 6 months non-parole period from 6.6.13.
4, 5, 9,12, 13	s.611. Sexual intercourse without consent (1st episode, penile/vaginal x 5).	5 years, 2 years 6 months non-parole period from 6.6.13 to 5.12.15.
8	s.611 Sexual intercourse without consent (1st episode, penile/anal)	6 years, 3 years non-parole period from 6.6.13.