Beavis v R

[2018] NSWCCA 248

Court of Criminal Appeal

Supreme Court

New South Wales

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• Amendment notes

Medium Neutral Citation:	Beavis v R [2018] NSWCCA 248
Hearing dates:	7 September 2018
Date of orders:	07 November 2018
Decision date:	07 November 2018
Before:	Ward JA; Bellew J; Beech-Jones J
Decision:	1.   Leave be granted to raise ground 2 of the appeal against conviction and dismiss the appeal against conviction. 2.   Leave be granted to raise ground 1 of the appeal against severity of sentence and the appeal be allowed. 3.   Set aside the sentence imposed by Bright DCJ on 8 December 2017. 4.   In lieu thereof: (a)   impose an aggregate sentence of 7 years commencing on 7 December 2017 and expiring on 6 December 2024; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 4 years and 2 months commencing 7 December 2017 and expiring 6 February 2022; (c)   specify that the earliest date the applicant will be eligible to be released on parole is 6 February 2022; (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicate to the appellant and record that an aggregate sentence is imposed and that the sentence that would have been imposed for count 1 on the indictment is 9 months’ imprisonment with a non-parole period of 5 months; for count 2 on the indictment the sentence that would have been imposed is 2 years’ imprisonment with a non-parole period of 1 year and 3 months; for count 3 on the indictment the sentence that would have been imposed is 4 years and 3 months’ imprisonment; for count 4 on the indictment the sentence that would have been imposed is 2 years and 6 months’ imprisonment; and for count 5 on the indictment the sentence that would have been imposed is 3 years and 3 months’ imprisonment.
Catchwords:	CRIMINAL LAW – application for leave to appeal against conviction – whether a miscarriage was occasioned by misdirection to the jury regarding evidence given on oath by the appellant – whether verdict of jury unreasonable – leave refused to raise first ground – leave granted to raise second ground but held verdict was not unreasonable – appeal against conviction dismissed   CRIMINAL LAW – application for leave to appeal against severity of sentence – whether sentencing judge erred in having regard to breach of trust in relation to counts 3, 4 and 5 when being “under the authority” of the appellant was an element of the offences – appeal allowed – appellant re-sentenced
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 53A Crimes Act 1900 (NSW), ss 61M, 66C Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 165B
Cases Cited:	Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Blanco v R [1999] NSWCCA 121 Faehringer v R [2017] NSWCCA 248 Franklin v R [2013] NSWCCA 122 Franklin v R [2016] NSWCCA 319 Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 Holyoak v R (1995) 82 A Crim R 502 Hughes v R [2018] NSWCCA 2 JM v R [2014] NSWCCA 297 Johnston v R [2017] NSWCCA 53 JRM v R [2012] NSWCCA 112 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Magnuson v R [2013] NSWCCA 50 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 MRW v R [2011] NSWCCA 260 R v Abusafiah (1991) 24 NSWLR 531 R v Clarke (1995) 78 A Crim R 226 R v Copeland (Supreme Court (SA), Court of Criminal Appeal, 12 September 1997, unrep) R v Humphries [2004] NSWCCA 370 R v Ita (2003) 139 A Crim R 340 R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282 R v Tripodina (1988) 35 A Crim R 183 R v Wilson [2005] NSWCCA 219 Raumakita v R (2011) 210 A Crim R 326 Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38 Tuite v R [2018] NSWCCA 175
Category:	Principal judgment
Parties:	Robert John Beavis (Appellant) Regina (Respondent)
Representation:	Counsel: P Lowe (Appellant) E Balodis (Respondent)   Solicitors: Peter Kilmurray Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2016/188577
Publication restriction:	Restriction on publication of anything that may identify the persons identified in the judgment as “X”, “S”, “F” and “T”.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 October 2017 Before: Judge Bright File Number(s): 2016/188577

Judgment

1. THE COURT: On 13 October 2017, following a nine day trial in the District Court at Newcastle before Bright DCJ and a jury of twelve, the appellant (Robert John Beavis) was convicted of two counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW) and three counts of having sexual intercourse with a child of or above the age of 10 years and under the age of 14 years under his authority contrary to s 66C(2) of the Crimes Act. (We will refer to Mr Beavis as the appellant throughout, consistently with his Counsel’s submissions, although strictly he is an applicant as leave was conceded to be necessary in relation to both grounds of the conviction appeal and also to appeal against the severity of the sentence.)

2. The complainant (in respect of whom there is a non-publication order and to whom we will therefore refer simply as the complainant) was aged 10 years at the relevant time and was a school friend of the appellant’s daughter (to whom we will refer as “X”). The offences of which the appellant was convicted all occurred on the one night, when the complainant was at the appellant’s house for a sleep-over, some time between 1 September 2004 and 17 December 2004.

3. The appellant was sentenced on 8 December 2017 to an aggregate sentence of a total term of 8 years, with a non-parole period of 4 years and 10 months to date from 7 December 2017 and expire on 6 October 2022, with a balance of term of 3 years and 2 months, to date from 7 October 2022 and expire on 6 December 2025. The earliest date on which he will be eligible for parole is 6 October 2022. The sentencing judge varied the statutory ratio between the non-parole period and the parole period on the basis of a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the fact that it was the appellant’s first time in custody.

Appeal

4. By notice of appeal filed 28 June 2018, the appellant appeals against conviction and seeks leave to appeal against sentence on the following grounds:

Grounds of appeal (Conviction)

Ground 1

A miscarriage of justice was occasioned in that the Trial Judge erred by failing to properly and/or adequately direct the jury regarding the evidence given on oath by the appellant[.]

Ground 2

The verdict was unreasonable, or cannot be supported, having regard to the evidence.

Grounds of application for leave to appeal against severity of sentence

Ground 1

The sentencing judge erred:

a)   In determining that the offences in relation to counts 3, 4 and 5 involved a significant breach of trust when being “under the authority” of the appellant was an element of those offences.

b)   By failing to have regard to the circumstances surrounding the delay in prosecuting the matter as being a matter warranting mitigation of severity of sentence.

c)   By failing adequately [to] take into account that the appellant had been assessed as being at low risk of re-offending.

Ground 2

The sentence is otherwise manifestly excessive[.]

5. At the hearing of the appeal, Counsel for the appellant noted that, as the second ground of appeal on the conviction appeal raised a mixed question of fact and law, leave was sought to raise that ground. Leave was also sought in respect of ground 1, as required by r 4 of the Criminal Appeal Rules, as no complaint was raised by Counsel at the trial in relation to the directions given by the trial judge in respect of which complaint is now made. For the reasons set out below, we would not grant leave to raise the first ground of appeal against conviction but would otherwise grant leave to appeal on ground 2 and against the severity of sentence. We would dismiss the appeal against conviction but allow the appeal against sentence.

Background

6. As noted above, the Crown case was that the offending conduct occurred on one occasion between 1 September 2004 and 17 December 2004 during a sleep-over by the complainant at the appellant’s house. At that time, the complainant was 10 years old and in Year 4 at primary school. “X” was in the same year as the complainant at school and they were friends.

7. The Crown case was that at the time of the offending conduct the complainant and “X” were in the lounge room of the appellant’s house, lying on a mattress on the floor and watching a movie; that the appellant came into the room and lay between them; that the appellant asked the complainant if she wanted to be tickled, to which she initially said “No” but, after further conversation, said, “Okay, just for a little bit on my stomach”; and that the appellant began to tickle the complainant on the skin of her stomach, underneath her pyjama top.

8. Count 1 on the indictment related to the conduct of the appellant in then proceeding to fondle the complainant’s breasts. The complainant’s evidence was that she placed her arms across her chest to block the appellant and told the appellant she had had enough. The appellant started to tickle the complainant’s stomach again and then touched her under her pyjamas and underpants on her vagina. Count 2 on the indictment related to the appellant fondling the complainant’s vagina. Count 3 on the indictment related to the appellant then inserting his fingers into the complainant’s vagina and doing the same thing over and over, for about an hour. Count 4 related to the appellant’s conduct, shortly before the complainant got up to go to the toilet, in rubbing the complainant’s clitoris and putting his fingers around her vagina area and inside.

9. The complainant’s evidence was that she told the appellant on several occasions to stop. After the conduct the subject of count 4, the complainant says she went to the bathroom and thought about how she could escape. On her return to the lounge room, the complainant sat on a lounge chair for a short time. Her evidence was that the appellant was still present in the room and told her to come and sit back down; that he assured her that he would not do anything more to her; and that he told her to relax and go to sleep. The complainant’s evidence was that, after some period of time, the appellant began to tickle her again; that she rolled onto her side, facing away from the appellant who told her to lay on her back and watch the movie; and that the appellant then put his hands down her pants and again placed his fingers in her vagina (count 5). The offending conduct ceased after the complainant pretended to be asleep with her legs pulled together and curled her arms across her chest.

10. The complainant did not disclose the offending conduct until December 2004, on an occasion when “X” had called her and she had displayed reluctance to take the call. At that time she disclosed to her half-sister, to whom we will refer as “S”, who was then 15 years old, that the appellant had put his hands down her pants. “S”’s handwritten note of the complaint (made shortly afterwards at their mother’s request) records that “S” asked the complainant about digital penetration and that the complainant had responded to the effect that she did not know, she was so scared and half asleep.

11. The complainant participated in two interviews with police, on 28 January 2005 and 22 February 2005, respectively; after which her mother advised the police that they wanted no further action taken in relation to the investigation. In neither of those interviews was there any reference to digital penetration. In 2011, when the complainant was 17 years old, she attended a police station and the investigation was reopened. She provided a police statement on 20 February 2014. The appellant was charged on 21 June 2016.

12. Evidence was called in the Crown case from: the complainant; the complainant’s mother; the complainant’s half-sister (“S”), to whom disclosure of the offending conduct had first been made; another school friend of the complainant (to whom we will refer as “F”); and police officers involved in the investigation of the initial complaint in 2005 and in 2011. The Crown also called tendency evidence from a witness (to whom we will refer as “T”), who alleged that she was indecently assaulted by the appellant in 1998 when she was 7 or 8 years old. “T” alleged that the appellant put his hands down the front of her underwear and touched her vagina and then made her put her hand on his penis. Each of “T”’s parents also gave evidence in the Crown case as to the making of the complaint by “T” and/or their confrontation with the appellant and his wife after the making of the complaint by their daughter.

13. It was the defence case at trial that the alleged conduct never happened. The appellant gave evidence, as did his wife and each of their three children.

14. We will summarise the relevant evidence in due course. Suffice it at this stage to note that, apart from the central factual dispute as to whether the offending conduct had occurred, there were a number of disputes as to matters going to the account of events given by the complainant. Those included: in which room the sleep-over had taken place (the lounge room at the front of the house, as the complainant said, or the rumpus room at the back of the house, as was the defence case); whether the girls had been on a mattress on the floor (as the complainant said) or on a sofa bed (as was the defence case); whether the girls had been watching a “The Lord of the Rings” movie on a DVD player (as the complainant said but which on the defence case was impossible); and whether the appellant had also been tickling his daughter “X” at the time and had told the complainant that his daughters liked being tickled like that (as was the complainant’s case but denied by the appellant and his daughters – the defence case being that there was no tickling engaged in in their household as the appellant’s wife did not like tickling).

15. Inconsistencies between accounts given by the complainant to her half-sister, “S”; at the respective police interviews in 2005; and then at trial were emphasised by the appellant (including as to how long the offending conduct had lasted but most significantly as to whether there was any digital penetration).

16. As to the tendency evidence (which the Crown says was one of the strengths of the Crown case), the defence case was that the tendency witness (“T”) had invented the allegations against the appellant following an incident (denied by “T”) in which she had struck the appellant’s son and been banned from the appellant’s house by his wife.

17. The appellant argues that there is contrary evidence that contradicts the essential facts of the case on which the Crown relied to prove the complainant’s credibility and reliability – in particular, evidence as to the construction during the relevant time (from June to November 2014) of works at the appellant’s house, including a spiral staircase for the purpose of which a hole was cut in a corner of the lounge room.

18. A tax invoice dated 26 July 2004 issued by the builder, R T Simpson & Sons Pty Ltd, was in evidence indicating that work that was performed under “1st Progress Claim” was paid on 3 August 2004 (Exhibit 5).

19. Also in evidence was a letter dated 9 October 2017 on the letterhead of Newcastle Permanent Building Society disclosing a series of progress payments to the builder starting on 2 August, then 31 August, 1 November 2004 and 23 February and 17 March 2005 (Exhibit 6).

20. The defence case at trial was that because of the construction works the sleep-over could not have taken place in the lounge room (and the appellant’s wife gave evidence that her policy at the time was that all the children had to go to bed when she and her husband did – she giving evidence of a specific recollection that on the night in question her husband had gone to bed with her).

Summing up by trial judge

21. In summing up to the jury, the trial judge gave what the appellant accepts was a standard direction as to how to approach evidence given by witnesses at the trial:

It is for you to assess the various witnesses and decide whether they are telling you the truth. You have seen each of the witnesses as they have given their evidence. It is a matter for you entirely as to whether to you accept their evidence. Your ultimate decision as to what evidence you accept and what evidence you reject may be based on all matter of things, including what the witness had to say, the manner in which the witness said it, and the general impression which he or she made upon you when giving evidence. In relation to accepting the evidence of a witness, you are not obliged to accept the whole of the evidence of any one witness. You may, if you think fit, accept part and reject part of the very same witness’ evidence. The fact that you do not accept a portion of the witness’ evidence does not necessarily mean that you should reject the whole of the witness’ evidence. It does not mean that you should not accept the remainder of a witness’ evidence if you think it is worthy of acceptance. (SU2-3)

There was also a direction relating to the presumption of innocence (SU5).

22. The trial judge directed the jury as to the competing evidence of the complainant and the appellant as follows (SU6):

These directions mean that it is not a question, for instance, of you saying, “I’m not sure where the truth lies but I prefer [the complainant] to the accused.” Before you can convict the accused, you need to accept the evidence of [the complainant] as a witness of truth in relation to all five of the alleged incidents and that involves rejecting the denials by the accused. [emphasis placed on the italicized words by the appellant]

23. After giving directions in relation to the elements of each offence (SU7-8,10-11), the trial judge went on the remind the jury of the evidence given by the appellant in answer to the Crown case (see SU 20-22) and summarized the evidence of the defence witnesses (SU22-25). The trial judge then directed the jury that:

If, having considered that evidence and the submissions of both the parties in relation to it, you accept that evidence, then of course you must acquit the accused and bring in a verdict of not guilty because it would follow that the Crown has not established beyond reasonable doubt its case in relation to each of the charges. However, as I have told you, there is no obligation on the accused to persuade you to accept that evidence. The Crown must satisfy you beyond reasonable doubt that you should reject it as a reasonably possible version of the facts. If that evidence leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact it must prove, then you are bound in law to bring in a verdict of not guilty.

In other words, you do not have to believe that the accused and his witnesses are telling you the truth before he is entitled to be acquitted. If at the end of your deliberations you find that the Crown has failed to eliminate any reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade you of the accused’s guilt beyond reasonable doubt. (SU25)

24. As to the tendency evidence, the trial judge directed the jury that they would have to be satisfied beyond reasonable doubt that the conduct alleged actually occurred before they could rely on it (SU16-17).

25. Finally, as the trial judge had earlier foreshadowed with Counsel (T 345), a warning under s 165B of the Evidence Act 1995 (NSW) was given to the jury regarding the effect of delay on the ability of the appellant to test the evidence of the tendency witness (“T”) based on the forensic disadvantage arising from: the witness’ uncertainty as to the date as to when conduct occurred, meaning that the accused was only able to make a general denial; the unavailability, whether because of death or otherwise, of witnesses who may have been able to give relevant evidence; the inability of the accused to obtain employment records because of the passage of time; and the witness’ inability to recall precise details which, if known, could potentially be contradicted (SU16-17).

24. (In relation to the possibility of a similar warning in relation to the complainant’s evidence, Counsel for the appellant had earlier indicated that no significant forensic disadvantage because of the consequences of the delay (Evidence Act, s 165B(2)), apart from delay itself, was able to be articulated – see T 350.31-351.20.)

Conviction Appeal

27. As set out earlier there are two grounds on which the appeal against conviction has been brought. Leave has been sought in relation to both grounds.

Ground 1 – failure properly and/or adequately to direct the jury regarding evidence given on oath by appellant

Appellant’s submissions

28. The appellant contends that the trial judge erred in the way that she directed the jury as a matter of law regarding the use to be made of the sworn evidence of the appellant.

29. The appellant complains that no mention was made of the use which could be made of the evidence of the appellant (apart from general statements made at SU2-3, about which no complaint is made, regarding the acceptance or rejection of a witness’ evidence in whole or part).

30. In particular, the complaint is that no guidance was given by the trial judge as to how the jury should approach the sworn evidence of an accused who gives evidence (namely, that such evidence is to be treated no differently from other witnesses in the case and the assessment and evaluation of an accused’s evidence is to be treated no differently from the evidence of other witnesses). Reference is made in this regard to Robinson v The Queen (1991) 180 CLR 531 at 536; [1991] HCA 38, where the High Court held that the evidence of an accused person is “subject to the tests generally applicable to witnesses in a criminal trial”.

31. The appellant submits that, by failing to give a direction in the form of warning the jury not to discount the sworn evidence of an accused, the trial judge fell into error. It is submitted that the mischief here is the same as that identified in R v Copeland (Supreme Court (SA), Court of Criminal Appeal, 12 September 1997, unrep), where Doyle CJ (with whom Millhouse and Bleby JJ agreed) said (at 8):

In my opinion it was both appropriate and necessary for the trial judge to give the jury guidance in relation to the assessment of the accused as a witness. If nothing is said there is a danger that the jury might, in fact, discount the evidence of the accused simply because he was the accused, or for some other inappropriate reason. In principle, in my opinion it was appropriate to direct the jury to treat the accused like any other witness: Robinson v The Queen. … I cannot think of any better way of maintaining the right balance. It is desirable to give the jury an explicit warning, as the judge did here, against discounting the evidence of the accused because he is the accused. In short, what the judge said here seems to me to be completely appropriate for most cases.

32. In addition and in the alternative, it is submitted by the appellant that the trial judge’s direction to the jury at SU6 (see [22] above) was, in effect, an invitation to the jury to find that the complainant was a witness of truth if they rejected the denials of the appellant. This submission is based on the use of the words “and that involves” in the passage extracted earlier. It is said that acceptance by the jury of that direction required acceptance by the jury (as a matter of compliance with the direction of law) that rejection of the appellant’s denials necessarily entailed a finding that the complainant was a witness of truth.

33. It is submitted that there was a risk associated with the impugned words (“and that involves”) in that the jury were invited to perceive the case as a genuine contest of strength of two witnesses and that (although the direction at SU25 was given – see [23] above) it served to downplay the importance of the evidence of the other witnesses because it characterised the conflict as being one between the complainant and the evidence of the appellant. It is said that this also had the tendency to focus the jury’s attention away from the appellant’s evidence of the overall unreliability of the evidence of the Crown witnesses (when compared to the evidence in the defence case) to his denial of committing the offences.

34. As noted earlier, the appellant accepts that leave may be necessary in order to raise this ground by virtue of r 4 of the Criminal Appeal Rules and submits that, should this ground be considered arguable and otherwise to have merit, leave should be granted.

Crown submissions

35. The Crown notes that the trial judge gave directions concerning witnesses in general (SU 2.8) and the burden and standard of proof (SU 4-6), including the explanation that it was not simply a matter of preferring the evidence of the complainant to the applicant’s evidence (SU 6.4); and that the trial judge referred to the evidence of the appellant and the evidence led in his case (SU 19ff) before directing the jury (SU 25ff) about that evidence in the context of the burden and standard of proof.

36. The Crown notes that the fact that defence counsel at trial did not make any complaint as to the summing up or seek further directions from the trial judge is an indication as to the fairness and adequacy of the summing up (R v Ita (2003) 139 A Crim R 340 at 354 (Ipp JA)).

37. The Crown notes that in Robinson v The Queen at 536 the High Court said:

Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.

38. Reference is made to Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 (at [34]) where the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said that there were evident difficulties in treating Robinson as having established some new rule or principle and said (at [46]) that the principle to be taken from Robinson (and other authorities) was that a miscarriage of justice may occur because the jury was deflected from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt. It was there said that a jury would be deflected from its fundamental task if it was invited “to test the evidence given by an accused person according to the interest that the accused has in the outcome of the trial” (Hargraves at [45]).

39. In the present case, the Crown submits that the trial judge did nothing to deflect the jury from its fundamental task (nor does the appellant submit that the trial judge did so).

40. As to the reliance placed by the appellant on R v Copeland, the Crown submits that what Doyle CJ was referring to (when saying that the direction to the jury that they should not discount the evidence of the accused simply because he was the accused person was appropriate and necessary) was the need to maintain the right balance between the direction concerning the credibility of witnesses generally and their possible interests and the need to avoid that line of reasoning when considering the evidence of the accused (see at 7). The Crown notes that in the present case the trial judge did not refer in the summing up to the possible interest of the defence witnesses (noting that any such direction would have been fraught with difficulty, all the defence witnesses being family members, who presumably had an interest in the appellant’s acquittal).

41. It is submitted that as the trial judge did not give a direction concerning the possible interests of witnesses there was no need for a direction to the jury that they should not discount the evidence of the appellant simply because he was the accused person; and hence the trial judge did not fall into error.

42. As to the complaint made by the appellant in relation to the use of the impugned words “and that involves rejecting the denials by the accused”, after the trial judge had directed the jury that before they could convict the appellant they needed to accept the complainant as a witness of truth, it is submitted by the Crown that in the context of the whole of the summing up the trial judge must have been understood to have said that before the jury could convict the applicant they had to accept the evidence of the complainant and reject that of the appellant. The Crown points in this regard to what was said as to the burden and standard of guilt (at SU 25.7):

In other words, you do not have to believe that the accused and his witnesses are telling you the truth before he is entitled to be acquitted. If at the end of your deliberations you find that the Crown has failed to eliminate any reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade you of the accused’s guilt beyond reasonable doubt.

Determination

43. In our opinion, taken as a whole (and without parsing one small passage in the summing up, as the appellant’s submissions in substance seek to do) there was no error in the directions given to the jury. The trial judge made clear that the onus was on the Crown to prove its case beyond reasonable doubt; that the appellant had no obligation to persuade them to accept his evidence or that adduced in his case; and that the jury did not have to believe that the appellant and his witnesses were telling the truth in order for him to be entitled to an acquittal (see SU 25).

44. The appellant’s complaint was that the trial judge should have given a specific direction to the effect that when an accused gives sworn evidence the burden does not shift (see appeal transcript, T 18.30-18.44) or to the effect that, even if the jury did not accept the accused’s evidence they must nevertheless be satisfied beyond reasonable doubt of the accused’s guilt (see the exchange at T 18.34-43); or that the accused did not need to prove that his version was true – rather, the Crown must satisfy the jury that the account given by the accused and witnesses called in his case should not be accepted as a version of events that could reasonably be true (T 18.46).

45. The gist of the problem in the present case, says the appellant, is that the trial judge invited the jury to accept that if they rejected the appellant’s account or events or rejected his denials then the complainant must be a witness of truth (see T 19.5). However, that is not what the trial judge did. Rather, what the trial judge did was to direct the jury that before they could convict the appellant they had to accept the complainant as a witness of truth in relation to all five of the alleged incidents and that this would necessarily involve a rejection of the appellant’s denials. We see no error in the directions that were given in this regard.

46. No complaint was made about the directions at the trial, and therefore leave is necessary in order to rely on this ground of appeal. Leave under r 4 of the Criminal Appeal Rules will only be granted “where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings” (R v Tripodina (1988) 35 A Crim R 183 at 195 (Yeldham J, with whom Carruthers and McInerney JJ agreed)) or where “it is necessary to grant leave in order to avoid a miscarriage of justice” (R v Clarke (1995) 78 A Crim R 226 per Hunt CJ at CL at 230; referring also to R v Abusafiah (1991) 24 NSWLR 531 at 536). Neither is the case here.

47. We would refuse leave to raise this ground of appeal but, for completeness, we note that if leave were to be granted we would dismiss this ground of appeal.

Ground 2 – unreasonable verdict

48. Turning to ground 2, the unreasonable verdict ground of appeal, the test set out in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63, was as to whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (per Mason CJ, Deane, Dawson and Toohey JJ) (and see MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [56]-[58] as to the application of that test in the context of s 6(1) of the Criminal Appeal Act 1912 (NSW)).

49. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, the High Court (French CJ, Gummow and Kiefel JJ (Heydon and Crennan JJ dissenting)) confirmed (at [14]) that what is required in such a case, applying the test set down in M and restated in MFA, is that the Court make an independent assessment of the evidence both as to its sufficiency and quality in order to determine “whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged” ([21]).

50. It is clear that what is necessary is that the appellate court make an independent assessment of the evidence, weighing the competing evidence; and that, having done so, the task that the appellate court is required to perform is that of concluding whether “it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant”: SKA at [24]. (See also Raumakita v R (2011) 210 A Crim R 326 at [31] (Johnson J, Macfarlan JA and Garling J agreeing).)

51. In Romolo v R [2018] NSWCCA 3 at [24] Macfarlan JA (Button J agreeing) said:

In light of these principles, the ultimate question raised by the applicant’s ground of appeal is not whether the jury could have had a reasonable doubt, but whether it should have had such a doubt. In other words, if, after its independent assessment of the sufficiency and quality of the evidence, this Court has a reasonable doubt as to the applicant’s guilt, his conviction should be quashed unless the jury’s verdict can be explained by its advantage in having seen and heard the witnesses giving their evidence. [emphasis in original]

52. With the above in mind, that is, that the task for this Court is to determine whether it was open to a jury to conclude that the appellant was guilty of the offences with which he was charged, we set out below a summary of the evidence adduced in the Crown and defence cases respectively.

Crown case

53. Critical to the Crown case was obviously the credibility of the complainant.

The complainant

Initial complaint

54. As noted earlier, the first disclosure of the offending conduct was made by the complainant to her half-sister “S”. A handwritten note made by “S” (who was 15 years old at the time – T 142.9) shortly after the disclosure, at the request of her mother, was in evidence (Exhibit 1). It was as follows:

[The complainant] said that her and her friend [“X”] were laying in the lounge room on a mattress watching a movie when [“X”]’s dad enter the room approching [“X”]. He come next to [“X”] and started tickeling her then asked [the complainant] if she wanted to be tickeled she replied no but he did it anyway then he laid in between the two girls. [“X”] ended up falling asleep then he started to toch and talk to [the complainant]. [The complainant] told me that he was physicaly toching her vigina then I asked her if he had placed his finger in her vigina she said she didnt know because she was so scared and half asleep[.]

55. The complainant was cross-examined as to the account set out in the above note and confirmed that she would say that what she wrote there was true and correct (T 142.16).

First police interview

56. The first of the complainant’s interviews with the police Joint Investigation Response Team (JIRT) took place on 28 January 2005. A disc containing a recording of that interview was tendered as Exhibit A at the trial and a transcript thereof was marked MFI 2. A drawing of a girl which was marked by the complainant at that interview was also tendered (Exhibit B) (T 69). The video of the interview was shown to the jury.

57. At the outset, the interviewer informed the complainant that if she asked a question and the complainant knew the answer but for some reason did not want to tell her then she should say “I don’t want to talk about that’’ (Q50). The complainant knew that she was there to talk about “Mr Beavis or something” (Q 53).

58. The complainant explained that “we watched a DVD” and “then we were going to bed” (Q 211-212). She said they were sleeping in the lounge room as they would not fit in “X”’s bedroom because she shares a room with her sister (Q 213); they were watching a DVD in the lounge room (Q 218); she was in the lounge room with “X” and her dad (the appellant) (Q 222); they were in front of the television “laying down” on their beds (Q 228); the appellant was laying on the bed “laying in the middle” of her and “X” (Q 235); and she was not sure what movie was playing that she was watching on the TV (Q 237).

59. In that interview the complainant initially said that she did not want to talk about the appellant but said that maybe she and the interviewers might be able to talk about him (Q 204-205). Asked what happened, the complainant said “I don’t want to talk about it” (Q 239). The complainant said this was “a bad thing” and it made her feel “sad” (Q 241-242). Later (Q 250) she again said she did not want to talk about what happened; nor did she want to come back on another occasion and talk about it (Q 253; Q 261).

60. The complainant said she had told her half-sister, who told her mother, and had told “one of my friends” about what happened (Q 243). The complainant marked a diagram of a girl (which, as already noted, was later admitted in the trial as Exhibit B) and circled areas which were “bad touching”, namely the vagina, bottom, and breast; and areas which were “good touching” (the head and feet) (Q287ff). The complainant agreed that someone had touched her somewhere she did not like. She did not want to talk about it. The complainant stated it was “Mr Beavis” who touched her on this part. She agreed she was touched on body parts drawn on the diagram. She did not want to mark which parts (A302-303).

61. Pausing here, we note that the Court was not asked to view the recording of either of the JIRT interviews and we have not done so. What is clearly discernible from the transcript of this first interview (and to a lesser extent the second) is that the complainant was exhibiting reluctance (not uncommon in child sexual assault victims) to talk about what had happened in an interview with authority figures – however sensitively that interview may be conducted.

Second police interview

62. The second police interview was on 22 February 2005. A disc containing a recording of that interview was tendered as Exhibit C at the trial and a transcript thereof was marked MFI 3. The video was played to the jury. A diagram drawn by the complainant at that interview was tendered as Exhibit D (T 71). In attendance at that interview was a support person (a psychologist).

63. During that interview the complainant: said that she had a sleep-over at “X”’s house – she was not able to recall the date but said “but I know it was last year at the end of the year” (Q 63) (much later in the interview when asked again the complainant said it was “before Christmas”, and “before Christmas holidays” (Q 226-229)); said that they were watching a DVD of “The Lord of the Rings” (Q 67); and said that the appellant “started to, I don’t know um, um, he started to tickle me and ... then he put his hands down my pants” (Q 69-70). The interviewer said that she was just going to write things down and then asked “then what happened” in response to which the complainant said “Yeah, that’s it” (Q 73).

62. The complainant said that she, “X” and the appellant were in the lounge room on the floor watching a movie (Q 78ff). She drew a map of the lounge room (Exhibit D at the trial). She said that there was a “TV in the corner and there was two lounges and … there was a fireplace in between the two lounges” (Q 85). The complainant marked on the map where each of the three were – the appellant was in between “X” and the complainant, with “X” to the right of the appellant with the complainant on his left side. Everyone’s heads were at the same end of the mattress (Q 104-111).

63. The complainant said that the appellant started to tickle her while they were watching “The Lord of the Rings” (Q 118-122). She said that she remembered how the appellant was tickling her (Q 123-124); that the appellant used his hand to tickle her (Q 126-127); and that he tickled her “on my belly and then he put his hand down my pants” (Q 128). She could not recall which hand that he used (Q 131). She was wearing pyjamas at the time as they were going to bed and were watching a movie before that (Q 132-134).

64. The complainant recalled that “X”’s mum was at home but could not recall whether “X”’s brother or sister were at home (Q 138). She believed that “X”’s mother was in her bedroom and that “X”’s sister was in her bedroom (Q 139-142).

65. The complainant said that the appellant “put his hand down my pants and then he started touching ... my bottom” (Q 146). At the time she was lying on her back looking upwards (Q 150-151). She said that the appellant put his hand down her pants “below her undies” (Q 152-153); that his hand was underneath her pyjamas (Q 155); and that his hand was underneath her underpants and he touched her bottom (Q 155-157). When asked what happened then, the complainant said “yeah, and that was it” (Q 158).

66. Asked how the appellant could touch her bottom if she was lying on her back she said that the appellant had “touched my front one and then he touched my back” (Q 169); indicated that he had touched her vagina and that he slowly put his hand behind her and was trying to touch her bottom (Q 169-174). When asked how long the appellant was touching her vagina, the complainant said she did not know or did not remember (Q 175-179). When asked how it came to finish, the complainant said “I don’t know. I think he got a bit angry ‘cause I did something, I don’t know” (Q 180).

67. The complainant said that at the time that the incident happened “X” was on the other side of the mattress and that she fell asleep halfway through the film (Q 183-185). She could not recall whether the appellant started to tickle her while “X” was awake or asleep (Q 185-186).

68. The complainant did not tell anyone that night about what had happened (Q 203). The first person she told was her half-sister (“S”). She told her half-sister when she was in their mother’s bedroom (Q 204-207). After that she also told her mother (Q 208-209).

69. The Crown submits that it can reasonably be concluded that at this second interview the complainant was still reluctant to talk about the details of what had occurred.

Statement to police on 20 February 2014

72. The complainant gave evidence at the trial that she did not remember speaking to the police again after the 22 February 2005 interview (T 77.39). She gave evidence that the next time she spoke to a police officer about the matter was when someone approached her to speak about the matter in 2010, and then again in 2014 (T 77.43). She gave a statement to police on 20 February 2014, at which time she was nineteen years old. That statement was not in evidence at the trial.

Evidence in chief at trial

73. The complainant was called to give evidence at the trial. The complainant recalled that she became close friends with “X” in 2002 or 2003, when she and “X” were in either Year 2 or Year 3 at school together. She recalled that she and “X” would go to parties and sleep-overs together. She recalled having sleep-overs with “X” at both her own home (as a group, with others) as well as at the appellant’s house, commencing from 2003 until the end of 2004 (T 67.12-67.43).

74. As already noted, the recordings of the first police interview and the second police interview were tendered in evidence by the Crown. In relation to the second police interview, the complainant was asked whether, in that interview, she had told the interviewer everything that had happened. The complainant said that she had told “most of it” (T 78.40). Asked to describe, from the beginning, what had occurred, she stated that she was lying on the mattress with “X” while watching a Lord of the Rings DVD and that when the movie started “X” was awake (T 79.11). She said that the appellant entered the room after they had put the movie on at the very beginning of the movie (T 79.18) and that, by that stage, “X”’s sister and mother had gone to bed (T 79.21).

75. The complainant described what she was wearing (pyjamas which were “satin boxers” with underpants underneath them (T 80.2) and a shirt, like a tank-top which did not have sleeves (T 80.2-80.3)).

76. The complainant said that the appellant came into the room and laid between the two of them and she recalled that the light was off (T 81.5). She said that she had told him she wanted to be next to “X”, but that the appellant said something like “Oh no I’ll … be in the middle”. She said that the appellant lay between her and “X” with his head at the same end of the mattress as them (see T 77-80). She said that the appellant asked her whether she wanted to be tickled and she said, “No, thank you”; that the appellant said that “X” liked it; and that he started “doing it to [“X”] and she sorted of nodded”. The complainant said that she sat up because she was uncomfortable and the appellant said it was OK as “[“X”] likes it”. She said that she saw the appellant tickling “X” (T 81.15-81.16) and that “X” was laying down on his right; that she said “no” a lot of times but eventually said, “Okay- just- just-for a little bit on my stomach” (T 81.25-81.26).

77. She said that the appellant tickled her stomach, initially on the top and then went underneath her shirt to tickle the skin of her stomach (T 81.31-82.8). She said that he “progressed to go further towards the breast area” (T 82.1) and she placed her arms in a crossed forearm position close to her chest to cut the appellant off (T 82.16-82.20). She said that he said he was sorry and said “it’s okay”; and she told him she had enough. She said that after about five minutes he started to tickle her stomach again and “this time he progressed to go underneath my pants - underneath my undies, down to my vagina ... started tickling my thighs, and then he started- then he started rubbing my - or tickling my vagina” (T 82.36-82.39). She said that he “started to rub my clitoris and then he inserted his fingers, and then he just did the same thing over and over” (T 82.45-82.47). She recalled that “it wasn’t that long”, about five minutes, between the time when she folded her arms across her chest and the time when the appellant first placed his hands down her underpants (T 83.5-83.6).

78. The complainant said that “X” was also “getting tickled on the other side”. She said she could not say that she saw him tickling “X”, because she could not see “X” unless she sat up, as the appellant was quite a big guy (T 83.11). The appellant told her it was “all right”. The complainant said she “was too scared to look”, but she just couldn’t see his right arm when she looked over (T 83.8; 83.43). She said that he was using his left hand to touch her (T 83.36).

79. She said that she told the appellant a couple of times to stop and that she had had enough (T 84.9); and that the appellant told her “that he was still doing it to [“X”], and it was okay, and she liked it, and he does it to [“X”] and [“X”’s sister] - and they like it” (T 84.12-84.13).

80. After the appellant had placed his hand down her pants and had been doing it for a while (for, like an hour – pretty far into the movie – T 84.1-84.2), and while he was “rubbing my clitoris and putting his fingers around my vagina area inside” (T 88.41.88.42); and using one finger (T 88.48), she told him she needed the toilet and she pulled away and got up (T 89.3).

81. The complainant said that at the time she was in the bathroom she thought about how to get away and thought about leaving but that to get to her house or her friend’s house she would have needed to go through the bush and she had been told by the appellant and his wife over dinner that children could get abducted in the bush and that she should not go out without an adult. She also said she went to “X” and “X”’s sister’s bedroom to get her bag but it was too big; and that she saw “X’’s sister there and thought about sleeping there (T 84.20-85.37).

82. The complainant said that she went back into the lounge room (T 85.40); when she returned, she sat on the lounge chair being the furthest spot away from the TV (T 88.5); and she sat there for about 5 to 10 minutes (T 88.17). The movie was still on and the appellant and “X” were both there. The appellant told her to come and sit back down and she said she did not want to and she was happy sitting on the chair. She said the appellant told her it would be okay and he would not do anything more and they would just sit and watch the rest of the movie (T 88.27-88.28). She went back to the mattress. She sat down initially and then the appellant told her just to relax and go to sleep and watch the movie and she lay down in the same position as before (T 89.14-89.21).

83. When the complainant returned from the toilet she thought that “X” was asleep (T 89.33). She observed that “X” had “rolled over, the other way, facing out away” (T 89.36).

84. The complainant said that (after she returned to the mattress) the appellant started to tickle her belly again and she rolled away to her side on the left away from him (T 89.46). She said that the appellant then “started to put his hand down my pants again, so it was at the side of my pants and then at the back. So then he started to put his hands down my - bum crack and then I wiggled and rolled away, and he said, just lay, just lay on your back, just watch the movie” (T 90.7). She said that the appellant “put his hands down my pants, underneath everything, and rub my clitoris and put his fingers in my vagina” (T 90.20-90.21). She said this went on for another part of the movie but not as long as the first (T 90.24-90.25).

85. When asked how the offending conduct ended, the complainant said that she then pretended to be asleep and pulled her legs together and curled her arms across and that “he didn’t think I was asleep and he said something to me” in an “angry voice” (T 90.28-90.30). She said that “I don’t remember what he said... again he said it in an angry voice and said something along the lines of it being my fault and then walked away” (T 90.33-90.35).

86. The complainant said that while the appellant was touching her with his fingers “he’d take his hands out of my pants and I’d hear – I’d have my eyes closed trying to pretend to be asleep and I could hear a licking sound... Like a moist licking” (T 90.45-90.49). After this he put his hands down her pants and she would open her eyes a little bit but did not want to look (T 91.14).

87. The complainant said that the first person she told was a person from school (“F”) (T 91.44). She also told her older half-sister (“S”) (T 92.5). She did not tell her mother when she was picked up by her in the mid-morning as she was too scared to do so (T 92.20). (There is some inconsistency as to whether the complainant was collected by her mother or her father after the sleep-over – see [179] below – “X”’s evidence at T 307.22; though nothing turns on this.)

88. In relation to complaint made to “S”, the complainant said that “S” had tried to tickle her and the complainant told her that she did not want “S” to do that because “Mr Beavis had touched me like that” (T 93.1-93.12). She recalled that she told “S” that “he put his hands down my pants, but that’s all, I don’t – remember” (T 93.20-93.21). This disclosure happened in her mother’s bedroom and the only persons present were “S” and herself (T 93.23). The complainant recalled that she spoke to the police officer (DSC De Crewis) before Christmas or around Christmas but did not go and talk to her until January or February the following year (T 93.43-93.44).

89. Questioned in relation to the first and second police interviews as to why it was that she did not tell the detectives everything that she told the court when giving evidence, she said “Because I didn’t feel like she [DSC De Crewis] believed me. I didn’t find her very nice to talk to” (T 94.12-94.13). The complainant described the interviews she had in 2005 as “brutal” (T 98.12).

90. (Pausing here, the Crown argues that the experience of the interviews and the memory the complainant has of them may well have been influenced by the nature of the matter that was being investigated, noting the evidence of the investigating police to the effect that they believed themselves to have been gentle and kind (T 210.7) and the facilities used for the interview were in “a very good state from a police point of view” (T 210.13); but submitting that the holding of differing views is “understandably subjective”.)

91. The complainant recalled that, after the appellant had touched her, she went to one other sleep-over at “X”’s place (T 92.31-92.49), the occasion for which was “X”’s birthday; but at that time other girls were present at the sleep-over (T 94.47-95.7).

Cross examination

92. Cross-examined in relation to the complaint she had made to “S” and as to whether she told “S” that the appellant had placed his fingers or finger in her vagina, the complainant said that “As a child I told her that he put his hand down my pants” (T 98.44). She said that “S” did not ask her whether the appellant had placed his finger in her vagina (T 98.47), although, when it was put to her that “S” asked her the question and she told “S” she did not know, the complainant could not be certain whether she (the complainant) said that or not (T 99.9).

93. She could not recall exactly what happened the day of making the complaint as she only remembered being in her mother’s bedroom and telling her half-sister (T 99.10). She could not recall that “S” had asked her whether the appellant had put his finger in her vagina (T 99.16-99.19). She said “I remember saying that he would have put ... his hands down my pants. I don’t remember if she asked me anything further. I probably wouldn’t have admitted to anything further. I found it very hard to talk to anyone about it” (T 99.20-99.24).

94. It was put to the complainant that the only thing that refreshed her memory before she prepared her witness statement on 20 February 2014 was viewing the transcript from the interview of 22 February 2005. She responded, “It’s how I remember it in my mind - I live it every day. It’s been 12 years, so I’m not going to forget it easily. I don’t need a piece of paper, or a video to remind me of what happened” (T 100.24-100.26). When it was put to her that her version of events given in court was a complete lie, she said “It’s my truth. It’s not a lie to me” (T 101.48).

95. As to the proposition that the sleep-over may not have been in the lounge room, the complainant responded “There wasn’t enough room to sleep anywhere but the lounge room. I only ever slept in the lounge room when I stayed at [“X”]’s house” (T 102.22-102.23).

96. It was put to her that the appellant’s family did not have a copy of the film “The Lord of the Rings” in 2004 to which she responded “It was released in 2003 and they had a copy and I watched it there” (T 102.45). She said that she was quite sure that that was the case: “I’m sure it was on a DVD because I remember we turned on the DVD player and turned off the DVD player. It was in a DVD” (T 103.4-103.6). She said that “X” was involved in putting on the DVD and she recalled watching another movie with the same DVD player the next morning (T 103.9-103.11).

97. In relation to a sleep-over on another occasion where other girls were present it was suggested that there was no mattress in the lounge room, to which she responded that “we slept on the floor” (T 103.50). It was the complainant’s evidence that her they “slept on the floor on a mattress with pillows and blankets in front of the TV in the lounge room” (T 104.2).

98. The complainant agreed that she was never medically examined in relation to the digital penetration of the vagina (T 104.27). In relation to the touching of the clitoris, she said that the appellant’s finger was in and out and that he was touching the clitoris as well as the rest of her vagina (T 105.22-105.23). It was put to her that she was making up the allegation that the appellant was making a licking sound (T 105.31).

99. Asked whether she could recall any renovations being made to the appellant’s home she said that she could recall “something going on at the back of the house but I don’t know - I don’t remember what was going on but I do remember that they were doing something to the back of the house” (T 106.2-106.5).

100. It was suggested to the complainant that, at the sleep-over between July and December 2004, she slept on a bunkbed in the rumpus room with a sofa bed together with “X” to which the she responded, “I don’t remember a rumpus room” (T 106.28). She was shown a photograph (MFI 4) and asked questions about whether she recognised that as the rumpus room with a multi-coloured sofa in the appellant’s residence to which she stated, “I wasn’t in that room. That wasn’t the room that I described. That wasn’t the room I stayed in” (T 106.47). She denied that she had never stayed in the lounge room as it was off-limits (T 107.3). Again, when it was put to her that never at any stage did she sleep in the lounge room between the period of September and December 2004, she said “I did sleep in the lounge room. I can’t recall when it was but I did sleep in the lounge room with [“X”] when he assaulted me” (T 107.14-107.15).

101. It was also put to her that she never slept in the lounge room apart from an occasion earlier in 2004, in about March, when it was “X”’s birthday when she stayed with other girls to which she responded, “I slept in the lounge room at the party after he had it to me as well so both times I slept in the lounge room in the same spot. First with just [“X”] and Mr Beavis and the second time or the last time was with friends in their lounge room which would have been in 2004” (T 107.18).

102. It was put to her that she did stay in the Beavis house during spring to December 2004 but that she slept on the sofa bed in the rumpus room where she watched a VCR on the television, and not “The Lord of the Rings”, to which she said “that’s incorrect. I watched Lord of the Rings in the lounge room at the front of the house. Unless the rumpus room has changed to the front of the house, it was the lounge room, and that’s what they called their lounge room was at the front of the house” (T107.28-107.31).

Re-examination

103. In re-examination the complainant said that she believed that she had been to two birthday sleep-overs at “X”’s place (T 108.33; and see her earlier evidence at T 95.34-95.35 that one of those birthday sleep-overs was after the appellant had sexually assaulted her).

Complainant’s mother

104. The complainant’s mother gave evidence that her daughter attended a few sleep-overs at “X”’s house, the first one being a birthday party for “X” (T 112.46), but she was unsure what year that occurred.

105. As to the circumstances in which her daughter disclosed the offending conduct, her evidence was that she had answered the phone when “X” had called; that her daughter was reluctant to take the call and was making excuses why she could not do so; and that, because of the way that the complainant presented while she was talking on the phone to “X” and after the phone call finished, she followed her daughter into the family room and asked her what was wrong (T 113.43-114.19).

104. She said that the complainant was lying face down on the lounge in the family room; and the complainant “said she didn’t like the way Mr Beavis tickled her” (T 114.18-114.19). She said that the complainant would not look at her and would not respond when she tried to get more information out of her. She then had to go to work, and asked “S”, the complainant’s older half-sister, if she could find out what was concerning the complainant (T 114.28). She went to work and subsequently received a phone call from “S”, following which she went home immediately and rang the police (T 114.41-114.47). She said that she went home to try to speak to her daughter (the complainant), who was in her bedroom, but that the complainant did not want to tell her anything (T 115.2-115.13).

105. Her evidence was that following the second police interview she decided that she did not want the police to take any action in relation to the allegations made by the complainant (see the document signed by her on 22 February 2005 (Exhibit F)). She said that herself and the complainant made this decision and that the reason she, the complainant’s mother, decided this was because she found “the whole experience was very disappointing” (T 126.48). The document was signed following the occasion of the second interview (T 127.25). She said that when the complainant was older she (the complainant) spoke to her about contacting the police; and said that the complainant had “always wanted … to approach police when she was old enough” (see T 129.4-129.9).

106. In cross-examination, the complainant’s mother said that there were at least two occasions when the complainant had a sleep-over at “X”’s house (T 133.11). She described one occasion, which she thought was for a birthday party and on which occasion, she assumed, there would have been other girls present (T 133.19-133.26). She recalled another occasion when the sleep-over involved only “X” and the complainant, and she recalled that on that occasion she picked up her daughter from the overnight stay; and she recalled that she was rung up by her daughter in order to pick her up (T 133.28-133.44).

107. In re-examination, the complainant’s mother indicated that after the second interview on the way home the complainant said to her “she was happy that she’d spoken about the incident but she wasn’t happy with going forward” (T 135.6-135.7). It was after she was told this that she filled out the form which instructed the police not to take any further action in relation to the complaint (Exhibit F) (T 135.10).

108. When questioned about whether the complainant ever went to the Beavis home after 22 February 2005 she stated, “I don’t believe she went there again ... I don’t believe I would have allowed her to go there” (T 135.42-135.45).

The complainant’s half-sister (“S”)

111. “S” gave evidence regarding the occasion in January 2005 on which she spoke to the complainant after she was asked to by their mother. She recalled being at home when her mother had answered a phone call from “X” and said that the complainant when as “white as a ghost” when she was told “X” was on the phone (T 136.44). She said that her mother asked if the complainant wanted to go for a sleep-over at “X”’s and that she just said “No, no”. She said that her mother had to go to work and asked her to talk to the complainant and see what was wrong. She gave the following evidence (T 137.25-137.38):

[The complainant] was up in mum’s bedroom on the bed. And she was laying on the bed and I come into the room because Mum asked me to … see what’s going on, and I got into the bedroom and she’s laying on the bed. I just said … why don’t you want to go - why don’t you want to go to your friend’s house for a sleepover? ... And she said, “I want to tell you I don’t – like – I don’t want to hurt [“X” ]”. And I was, like, “What you mean?” And then she explained to me what had happened to her. ... She said that Mr Beavis came into the lounge room with [“X”] and [the complainant], and he was tickling them, and eventually [“X”] has fallen asleep and then he … put his hands down her pants, and she just showed me the movement of what he had done (T 137.25).

112. “S” said the complainant then put her own hand on her vagina and moved her hand “up and down” (T 137.40-138.16). “S” said that she had “alarm bells” going off in her head and that she asked the complainant “if he… inserted his fingers inside her. And she said - she was just so scared that she - she couldn’t recall what had happened” (T 138.22-138.24).

113. “S” described the complainant at the time that she made the complaint as appearing scared, nervous and agitated (T138.32). After this, “S” rang her mother. She wrote the notes (Exhibit 1) down about what she remembered about the conversation with the complainant after her mother returned from taking the complainant to a JIRT office to be interviewed.

114. In cross-examination, “S” agreed that when she gave a statement to the police in 2011 she did not write in the statement that she had asked the complainant if the appellant had put his finger in her vagina and that the complainant said she did not know because she was “so scared and half asleep” (T 145.46).

“F”

115. “F” gave evidence that she was a school friend of the complainant. She recalled attending a sleep-over for a birthday party of “X” in 2004 and recalled that she and the others who were there slept in the lounge room on mattresses on the floor (T 150.39-151.15). She could not remember the complainant telling her anything about the appellant having done something to her (T 151.28).

“T”

116. As noted, “T” was called in the Crown case as a tendency witness. She was 27 years old when she gave evidence (T 157.37).

117. “T” knew the appellant’s family because her family lived in the same street as the family until “T” was ten years old and she was in the same year at school as the appellant’s son (T 158.38-158.45). She recalled one occasion when she went to the appellant’s house when she was aged either seven or eight years old (T 159.49). She said that her younger brother and the appellant’s son were playing in the backyard and she recalled that the appellant was sitting on a couch and watching a “scary” movie “The Terminator” (T 160.19). She said that the appellant was lying on a couch and told her to come and sit down and watch the movie with him (T 160.23). She did not want to sit down with the appellant but she felt pressured. He was lying on a couch in the lounge room. She stayed and watched the movie (T 166.28-166.29).

118. “T” said that when she went over and she was lying on the lounge, the appellant “put his hands down the front of my pants – down the front of my underwear” (T 167.1-167.2); she thought it was one hand but she could not remember; she said that he then started “touching my vagina ... the front of my vagina, and – stroking me, and things like that ... running his fingers along the tops – the top of me ... of my vagina” (T 167.10-167.16); and he ran his fingers over her vagina and vulva.

119. She then gave evidence that the appellant “made me put my hand on his penis and squeeze it, and touch it, and when I felt uncomfortable and tried to pull away, he held my hand there, and asked ... to keep doing it, and he repeated on several occasions that this would be our little secret” (T 167.19-167.22) and that she was not to tell her mum or dad (T 168.2). She did not recall how long this went on for; she felt it was a while and she felt uncomfortable (T 167.46-167.47).

120. She said that the appellant had his clothes on and her hand was placed over his clothes but without his penis being exposed (T 167.26-167.27).

121. She recalled that that occasion was not the only occasion the offending happened. Although she could not remember how many times it happened, she knew that it happened several times, each time involving the same actions with him putting his hand down her underpants, and her touching his penis on the outside of his clothing (T 168.8-168.18). She said that this conduct occurred while she was approaching her eighth birthday (T 168.22).

122. “T” complained to her mother about the appellant’s actions (T 168.48-169.6) in the following circumstances. She said that her brother had said that he did not like the appellant and she said in the presence of her mother “I don’t like him either - he’s rude”. Her mother asked what she meant and she said that was when she told her mother about what had happened: “I said he put his hands down my pants and mum was very shocked” (T 169.6). The matter was reported to the police (T 169.15) but “T” did not remember going to court (see, as to this, the evidence of “T”’s mother, referred to below at [132]).

123. In cross-examination, “T” agreed she was having some difficulties remembering some details, such as “specific days, my specific age” (T 169.50), but said that “the details of what he did I remember as clear as day” (T 170.1). She recalled going down to the backyard and talking to her brother and “X”’s brother. She agreed that she may have been seven when the incident took place but indicated that she could have been either seven or eight (T 170.29). She recalled that the appellant’s family had a swimming pool put in their backyard at some stage, but could not recall there being a swimming pool construction taking place when the incidents occurred. She agreed that she could not determine whether it was 1997 or 1998 that the incident occurred and said “I can’t say hundred percent with accuracy” (T 171.2). She recalled that she was interviewed by police (and it was agreed that this occurred on 16 December 1998 (T 171.46-171.47)). At the time she would have been aged eight years and four months (T 171.47).

124. She rejected the proposition that the conduct of the appellant did not happen, stating, “those things 100% happened” (T 172.5). What was then put to “T” (T 174.41-175.20) was an account of events to the effect that she had attended the appellant’s home in April 1998 and had been playing and squabbling with his son; and that she had got a lump of wood out of a fire basket in the lounge room and whacked or hit the appellant’s son, causing him to scream out, and then the appellant’s wife had told her to leave their house and never come back. “T” variously denied the relevant propositions, said that they were untrue; disagreed that those things had happened or said that she did not remember that (see T 172.10; 172.13; T 174.44; T 175.16; T 175.20; T 177.4). She denied that she had made up the allegations against the appellant (T 175.22-175.24).

125. When it was put to her that she did not watch a movie called “The Terminator” with the appellant at his home (T 176.7-176.8), “T” said “I’m sure it was The Terminator or something scary like that” (T 176.10).

126. “T” was unable to say which day the week that the conduct of the appellant took place, stating it was not a detail she could recall (T 176.22-176.27). She was asked some questions about the appellant’s wife telling her never to return to their house to which she responded that “I don’t have a recollection of that happening” (T177.4).

127. (After “T”’s evidence, the trial judge gave various directions to the jury about the tendency evidence – as to which the appellant makes no complaint. The trial judge noted that the tendency alleged was a tendency: first, to have a particular state of mind being the sexual interest in young girls and, second, to act on that sexual interest by engaging in sexual conduct with young girls – T 178.5-178.7.) (See T 178ff.)

“T”’s mother

128. “T”’s mother gave evidence that when “T” was about seven years of age she noticed that her behaviour changed and she “became very sad, quiet, withdrawn ... didn’t want to play with the kids” (T 183.11-183.16) and was having nightmares. When “T”’s mother asked her what was wrong, “T” said nothing (T 183.29-183.33). “T”’s mother said she noticed the change in behaviour after the middle of 1998 (T 193.3).

129. As to the circumstances in which the complaint was made, “T”’s mother gave evidence that: in late 1998 the family had been looking at Christmas lights; she saw the appellant’s family arrive in their car and she got out and started talking to them; and “T” started grabbing and dragging them and saying a number of times that she wanted to go home and wanted to go home “now” (T 184.1). When they returned home, “T” and her mother went into “T”’s mother’s room, and “T”’s mother asked her what was wrong and why she had behaved in that way towards the appellant’s family (T 184.24-184.25). “T” told her that the appellant “touched me, he touches me and makes me feel bad” (T 184.40). She asked “T” what she meant and “T” said that the appellant “touches me on my vagina” and, when “T”’s mother asked when it happened, “T” said “a little while ago” and that he “touched me and he grabbed my hand and put it in his pants” (T 184.44-184.45).

130. “T”’s mother said that “T” further disclosed that when she was at the appellant’s house, while the children were all playing in the backyard, he had asked her to help him get the baby to sleep and “we went to the lounge room on the lounge in front of the lounge and we laid with a blanket with the baby and put a movie on and that’s when he did it” (T 184.49-185.1).

131. “T”’s mother gave evidence that she rang the helpline in the phone book for child sexual assault (T 185.21-185.26); and that the following day she and her husband went to the appellant’s house to confront the appellant (T 185.32-185.33); that they did so; and that neither the appellant nor his wife said anything in response (T 186.10-T 186.23).

132. On 16 December 1998 “T”’s mother took “T” for an interview with officers attached to the JIRT (then called the JIT) (T 186.33-186.50). “T”’s mother gave evidence that after the interview, the officers told “T” and “T”’s mother “what our options were if we wanted to press charges” (T 187.24-187.25) but “we” ultimately decided not to do anything further as she (“T”’s mother) thought by having reported the matter to the police that they would not have to worry about it anymore, and didn’t realise that they “actually had to go through something like this” (T 187.28) and said they decided not to put “T” through the rigors of a trial. (Pausing there, it is not clear from the transcript to whom “T”’s mother is referring when using the word “we” in describing this decision-making process. It may be a reference to “T” together with her mother. However, “T” was a young child at the time. It may be a reference to “T”’s mother together with “T”’s father. However, “T”’s father gave evidence that his wife “handled everything” in the matter and he was “just there for support” – T 198.18-198.19.)

133. In cross-examination, “T”’s mother said that she did not recall “T” telling her, at some time after April 1998, that the appellant’s wife had told “T” never to come back to their home (T 187.47-187.50); and that she had never heard that “T” had struck the appellant’s son in the back of the head (T 188.4-188.9). She denied that the appellant had responded, when the allegation of inappropriate conduct was made to him, by saying in a loud voice “Bullshit. No way” (T 189.50-190.2); and she denied the proposition that the appellant said, “Don’t come here making accusations and not say anything” (T 190.21-190.23). She denied that her husband had said nothing – she recalled that he said something along the lines of “we know what you have done” (T 190.15-190.16).

134. In re-examination “T”’s mother denied that the appellant’s wife had ever come to her house and complained about “T” hitting her son with a piece of wood (T 193.33-193.39). She recalled that a few hours after the confrontation the appellant’s wife had come to her door in tears (T 193.49) and had said that “she was going to stick by husband no matter what” (T 194.4). She never spoke to the appellant’s wife again.

“T”’s father

135. “T”’s father gave evidence that he knew the appellant, having grown up with him in the local area and having gone to the same school (T 195.35-195.39); that his wife had told him of the complaint made by his daughter “T” regarding the conduct of the appellant (T 197.1-197.2); and that together with his wife he went to the appellant’s house the next day (T 197.14).

136. He gave evidence that his wife did the speaking but he could not remember what she said (T 197.36); that the appellant did not say a word during that conversation (T 197.42-197.43), “just stood there with a puzzled look on his face and, yeah, there was no reaction at all”. He could not remember whether his wife told the appellant about what “T” had said to her the previous night (T 198.1); and said that “T” had never told him what happened between her and the appellant (T198.23-198.26).

137. In cross-examination, he denied that the appellant said, “Bullshit” and “No way” in loud terms during that conversation, and said, “I would have remembered that but he did not say a word and I’ll stand firm on that” (T 199.20-199.23). He denied that the appellant said to him and his wife, “don’t come here making accusations and not say anything” (saying “no, he didn’t say that”) (T 199.25-199.27).

Police officers

138. The police officer responsible for interviewing the complainant in 2005 gave evidence. She said that the interviews that she conducted on 28 January 2005 and 22 February 2005 were in accordance with standard procedure applicable at the time (T 209.5-209.10). In cross-examination, she said she did not recall receiving any reprimand in relation to the manner in which she conducted the interviews. She agreed that, having viewed the video recordings of the two interviews the preceding week, any criticism as to how the two interviews were conducted would have now been fresh in her mind (T 209.42-209.48). As already noted above at [90], her evidence that was the facilities available at the time that the interviews took place was, “compared to your general police stations”, very child friendly and up to date as at that time (T 210.13-210.15).

139. Also called in the Crown case was the police officer from JIRT in 2011/2012 who was responsible for obtaining the statements of “T”’s parents in relation to the allegations made by their daughter (T 211.25-211.33) and who was responsible for speaking with the complainant about the allegation she made in 2005 and took a witness statement from the complainant’s mother (T 211.43-212.2). She said she contacted the appellant during the course of the investigation she was conducting and told him about the allegations of both the complainant and “T” (T 212.21); and that the appellant declined to be interviewed (T 212.41). In cross-examination she could not recall the exact words used by the appellant, and could not recall whether he said that “none of this rubbish ever occurred” (T 216.15).

140. Finally, evidence was given by a detective regarding the voluntary attendance of the appellant at the police station on 21 June 2016 where the appellant was arrested and charged in relation to the complainant’s allegations (T 220.9-220.17). He confirmed that notification regarding the complainant’s allegations to JIRT was first made through the DOCS hotline on 20 December 2004, that having arisen from a report made to police on 18 December 2004 by the complainant’s mother (T 217.47-218.10). He confirmed there was an AVO made in 2005 against the appellant following the second interview with the complainant (T 217.18-217.32). The detective also gave evidence that he had contacted one of the two officers who interviewed “T” on 16 December 1998, and that she had told him that her memory of the interview was “very vague” (T 225.26) and that her only memory was that it involved an allegation by someone living in the suburb in which “T” and the appellant lived and that the complainant, “T”, had since moved from that suburb (T 225.27-225.30).

Defence case

The appellant

Evidence in chief

141. The appellant pleaded not guilty to all the counts. He gave evidence in his defence.

230. The trial judge accepted that the principle of totality applied (ROS 11). The trial judge explained that had she imposed separate sentences there would have been partial accumulation of counts 3, 4 and 5 and that counts one and two would have been wholly concurrent but partially accumulated on the sentences for counts 3, 4 and 5 (ROS 11).

231. Special circumstances were found to justify varying the statutory ratio between the non-parole period and the parole period, being the age of the appellant and the likelihood that the appellant would serve some of that time in protective custody (ROS 11-12).

232. The appellant notes in relation to the finding of special circumstances that the aggregate sentence of 8 years (96 months) compared to the aggregate non-parole period of 4 years 10 months (58 months) converts to a statutory ratio of 60.4%.

233. The appellant does not cavil with the assessment made of the objective seriousness of the offences, the indicative sentences imposed, nor the variation of the statutory ratio. The issue he raises is whether, having regard to the grounds of the application, error exists such that a lesser sentence was warranted.

Ground 1 – alleged specific sentencing errors

237. Three specific sentencing errors are contended to have been made.

Ground 1(a) – “under the authority”

238. In respect of ground 1(a), it is contended that the trial judge erred by making the finding that all of the offences involved a significant breach of trust, when counts 3 to 5 involved the element that the victim was “under the authority” of the offender as a constitutive part of those offences. (We have earlier set out (at [229]) the paragraph which is said to contain that finding. The trial judge there concluded that “the conduct warrants condign punishment because of that significant breach of trust”.)

239. It is submitted that there is an element of “double dipping” in that finding, and that the trial judge did not seek to ameliorate that finding by specifically referring to the offence provision as having an element which required the jury to be satisfied that the victim was “under the authority” of the appellant. It is submitted that, whilst not listed as an aggravating feature, the reference to it in the sentencing remarks raises a concern that abuse of position of authority was factored into both the nominated indicative sentences and the overall aggregate head and aggregate non-parole period imposed.

240. The appellant notes that this Court has previously held that a sentencing judge would be falling into error by taking into account a position of authority as an aggravating factor where it is an element of the offence: see Franklin v R [2016] NSWCCA 319 (at [67] to [76]).

Crown submissions on ground 1(a)

241. The Crown notes that the concepts of abuse of “a position of trust” and abuse of a “position of authority” are different, such that an abuse of a position of trust can be an aggravating factor for an offence which has an element that a child was under the offender’s authority (referring to MRW v R [2011] NSWCCA 260 at [77]).

242. The Crown accepts that there is a risk of erroneously giving undue weight to an abuse of the position of trust where abuse of authority is an aggravating factor (MRW v R at [78]) but submits that in the present case the trial judge did not take the abuse of a position of trust into account in addition to the statutory circumstance of aggravation (that the complainant was under the authority of the appellant) with respect to counts 3, 4 and 5. The Crown notes that the trial judge referred to a significant breach of trust with respect to each of the offences, after earlier (at ROS 6) taking into account that the appellant took advantage of the complainant’s immaturity and vulnerability. It is noted that the reference to the significant breach of trust (at ROS 7) followed specific references to the objective seriousness of the offences and before reference to the aggravating features of the offences.

243. It is submitted that with respect to counts 3, 4 and 5 the trial judge’s reference to a significant breach of trust should be taken to refer to an assessment of the statutory circumstance of aggravation.

244. Alternatively, and although the reference to the significant breach of trust was not made with respect to the aggravating features of the offences, it is submitted that the trial judge was entitled to take into account the breach of trust, separately to the complainant being under the authority of the appellant at the time of the commission of the offences. The Crown maintains that there is no other reference in the sentencing remarks to the complainant being under the authority of the appellant to suggest that there was an erroneous double counting.

Determination as to ground 1(a)

245. The offences in counts 3, 4 and 5 of which the appellant was convicted included the element that the victim was (whether generally or at the time of the commission of the offence) under the authority of the offender (Crimes Act, s 66C(5)(d)). The appellant’s submission on ground 1(a) is based on the Crimes (Sentencing Procedure) Act which provides that the aggravating factors to be taken into account in determining the appropriate sentence for an offence include (s 21A(2)(k)) that “the offender abused a position of trust or authority in relation to the victim”; but stipulates in s 21A(2) that “[t]he court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence”.

246. The appellant referred to Franklin for the proposition that the sentencing judge fell into error by taking into account the fact that the offender was in a position of authority as an aggravating factor where that was also an element of the offence.

247. In Franklin the relevant error was a failure by the sentencing judge to advert to the distinction between a breach of trust and the holding of a position of authority. The offender was sentenced for offences which were committed by the offender upon his niece, who was aged from 7 to 13 at the time, while she was staying with the offender and his wife on weekends. A number of the charges of offences contrary to ss 66A(2) and 66C(2) of the Crimes Act were aggravated by the fact that the victim was under the offender’s authority at the time of the offending. The Crown had submitted on sentence that “the accused was in a position of trust to the complainant and her parents and abused that trust on a regular basis”. The sentencing judge had remarked:

I note that certainly when it comes to the aggravating features these offences were committed in the offender’s home and clearly there is a breach of trust in any event and that is self-evident from any fair assessment of these facts.

248. This Court (R A Hulme J, with whom Macfarlan JA and Bellew J agreed), in considering those remarks, observed (at [71]) that:

It was held in MRW v R [2011] NSWCCA 260 at [77] (Bathurst CJ, James and Johnson JJ agreeing) that the abuse of “a position of trust or authority” in s 21A(2)(k) is a reference to distinct concepts. It was held to have been open to the sentencing judge in that case to have taken a breach of trust by a father towards his child into account where it was an element of the offence in s 66C(2) that the child was under the father’s authority.

249. The Court held that the problem was that the sentencing judge did not indicate that he was aware of that distinction (at [72]). The Court distinguished MRW and also JRM v R [2012] NSWCCA 112 on the basis that in those cases (where a similar ground of appeal had failed) the sentencing judge had specifically alluded to the fact that the victim having been under the authority of the offender was an element of the offence (at [72]). R A Hulme J then concluded (at [75]):

The problem in the present case is at a more basic level: the sentencing judge stated that there were these two aggravating features but he did not explain why, in the circumstances of the case at hand, they were aggravating. There is also nothing to indicate that the judge saw a distinction between a breach of trust and a breach of a position of authority; if he did, he did not explain what it was. [emphasis added]

250. In MRW v R, it was submitted that the sentencing judge had erred in taking into account as an aggravating feature the abuse of a position of trust in circumstances where one of the elements of the offence was that it occurred whilst the complainant was under the appellant’s authority (see at [73]). The offence (against s 66C(2) of the Crimes Act, aggravated by the fact that the victim was under the authority of the offender) was committed by the offender against his daughter who was aged ten at the time; the complainant gave evidence that she was afraid of getting in “heaps of trouble” if she resisted or reported it (at [13] per Bathurst CJ). In her remarks on sentence the sentencing judge said (as extracted at [68] per Bathurst CJ):

In relation to the consideration of breach of trust, this is a separate circumstance from part of the indictment that [the complainant] was under the offender’s authority. The breach of trust which I take into account here, which is an obvious and aggravating feature, is in relation to [MRW] being [the complainant’s] father on the one hand, and at the time she was also under his authority. The abuse of trust involved between a father and a child is an obvious aggravating feature.

251. Bathurst CJ, with whom James and Johnson JJ agreed, concluded that the sentencing judge had not fallen into error. His Honour said (at [77]-[78]):

[77] There can be little doubt, in my opinion, that the matters referred to in s 21A(2)(k), namely abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts. As only the latter of the two concepts formed an element of the offence, in my opinion, it was open to the trial judge to take the former factor into account as an aggravating feature on sentencing.

[78] However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court. However, the judge committed no error in taking abuse of a position of trust into account in sentencing the appellant. [emphasis added]

252. In MRW, the sentencing judge had expressly stated that “breach of trust” was a “separate circumstance from part of the indictment that [the complainant] was under the offender’s authority”. It appears from what was said at [78] that Bathurst CJ did not regard it as a case where the breach of trust arose from the same facts as the abuse of authority. It appears, from the summary at [67]-[71] of his Honour’s judgment, that the sentencing judge had separately identified the breach of trust (specifically, that the offender was the complainant’s father).

253. In this case in her remarks on sentence, the sentencing judge stated that (AB 71; ROS 7.7):

In relation to all the offences, they involved a significant breach. The complaint was staying at the home of the offender and his family and was entitled to feel safe and secure in that home. Clearly the conduct warrants condign punishment because of that significant breach of trust. (emphasis added)

254. In her remarks on sentence, the sentencing judge did not expressly identify what facts and circumstances demonstrated that the complainant was under the appellant’s authority within the meaning of s 66C(5)(d) of the Crimes Act for the purposes counts 3, 4 and 5. However, the jury had been directed as follows in relation to that element (AB 16):

The third element the Crown must prove is that the complainant at the time was under the authority of the accused. A person is under the authority of another person [if] the person is in the care or under the supervision or authority of the other person. You know here the Crown relies upon the fact that she was staying over at the accused’s house and, in those circumstances, he was responsible for her care for the evening. (emphasis added)

255. Given the jury’s verdicts, it must be accepted that they accepted this aspect of the Crown case. It follows that the matters said to demonstrate that the complainant was under the appellant's authority for the purposes of counts 3,4 and 5 were the same as those matters said to constitute the breach of trust for all offences, namely that the complainant was staying in the appellant's house and accordingly he was responsible for her safety and security. Thus, similarly to Franklin, the sentencing judge either did not advert to or at least maintain a distinction between a breach of trust and a breach of authority. Put another way, in relation to counts 3, 4 and 5 the sentencing judge treated a breach of trust as aggravating an offence, when as a matter of substance that breach was an element of the offence (Crimes (Sentencing Procedure) Act, s 21A(2)).

256. Accordingly we would uphold ground 1(a). Further, as the established error concerns three offences whose indicative sentences formed a substantial portion of the total sentences that were imposed, it follows that the error relevantly “affect[ed] the exercise of the sentencer’s discretion” (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; JM v R [2014] NSWCCA 297 at [40] per R A Hulme J).

Ground 1(b) - delay

257. Under this ground, the appellant submits that the sentencing judge failed to have regard to the circumstances surrounding the delay in prosecuting the matter as being a matter warranting mitigation of the severity of the sentence. The appellant notes that delay in this matter was referred to on two occasions in the sentencing remarks.

258. First, in the course of the outline of relevant events from when the offending conduct took place leading to the appellant being charged on 21 June 2016. It is accepted that after that date no complaint can be made about delay but the appellant submits that there was a substantial period of time from the time that the offending conduct occurred to the victim complaining to police in 2005 and then seeking re-investigation in 2011 and ultimately providing a witness statement on 20 February 2014.

259. Second, by reference to change of sentencing patterns. It is submitted that it is patent that no discount was made on sentence based on any perceived change of sentencing practice.

260. The appellant submits that the delay of approximately 10 years in the complainant pursuing an investigation into her complaint was a matter that should have been taken into account and warranted mitigation of the penalty.

Crown submissions

261. The Crown notes that delay was only briefly mentioned by defence counsel in the sentence proceedings (transcript 8 December 2017 T 4.22) and submits that the mere passage of time between the committing of the offences and the disclosure of the offences and apprehension of the offender is of little weight as a factor in mitigation of penalty (referring to R v PLV (2001) 51 NSWLR 736 at [115]; [2001] NSWCCA 282).

262. It is submitted that there was nothing to indicate that, in the period of time between the commission of the offences and the appellant’s conviction, the appellant had been rehabilitated; nor was there evidence that the appellant had the complainant’s complaint “hanging over his head” in that time (adopting the terminology in Holyoak v R (1995) 82 A Crim R 502 at 508-509). It is noted that given that the appellant had continued to maintain his innocence he was not able to contend for either of those possible mitigating circumstances.

263. The Crown points out that delay in the proceeding did bring with it certain consequences, in that the appellant at the time of sentence was aged 53 but that this was not a mitigating factor. The Crown also points out that the trial judge took into account that the appellant had no convictions, either before or after the subject offences (ROS 9).

264. It is noted that the offences occurred in 2004 and that, as the trial judge recognised, in general there has been an upward movement in sentencing for these types of matters (ROS 9).

265. The Crown submits that it is a well-known aspect of child sexual abuse that complaint is often delayed; that in the present case there were understandable reasons for the appellant not being prosecuted in 2005; and that there was nothing in the evidence to indicate anything other than the appellant’s continued confidence that he would not be called to account for what he had done to the complainant.

Determination as to ground 1(b)

266. It is clear that the trial judge took into account some aspects of the delay in the prosecution of this complaint, specifically, by having regard to sentencing practices at the time of the commission of the offence.

267. The appellant has not explained why it is that the delay in prosecution ought to have been taken into account. In Holyoak v R, a period of 22 years had elapsed between the time of the offences and the time when the offender was charged. Allen J, speaking of the relevance of that delay to sentencing, said (at 508) that “[w]hether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case”. That statement was applied in R v Humphries [2004] NSWCCA 370 at [19]-[21], this Court there referring to such circumstances as including that the offender may have been left in “agony of mind” during a long delay; or may have been rehabilitated in the meantime; see also Faehringer v R [2017] NSWCCA 248 at [88]-[90].

268. In this case, a brief reference to delay was made by counsel for the appellant at the sentencing (transcript 8 December 2017, T 4.20-4.24). However, nothing was put to the sentencing judge which could have allowed her to conclude that delay was relevant to sentencing the offender (for example, evidence that rehabilitation had occurred in the interim period or evidence as to the effect of delay on the offender’s life in the intervening period).

269. We are not persuaded that error has been revealed in the sentencing in this regard. Leave to raise ground 1(b) should be granted but the ground dismissed.

Ground 1(c)

270. In relation to ground 1(c), the appellant submits that the sentencing judge failed to take into account the fact that the appellant had been assessed as being at a low risk of reoffending. The appellant submits that while it is clear that the trial judge was aware that the appellant had been assessed as being at low risk of re-offending it is not clear from the sentencing remarks how that factor was taken into account. It is noted that the trial judge considered that the appellant was entitled to significant leniency on sentence because of his age and lack of criminal convictions.

271. It is submitted that, looking at the set of circumstances as to how the offences came to be committed (at a sleep-over where school age children were involved), the possibility of permitting further offences was remote to non-existent. It is submitted that the assessment made of the appellant that he was at low risk of re-offending warranted a discount of sentence.

Crown submissions

272. The Crown submits that the trial judge took into account (ROS 11) that the appellant had been assessed as being below the average risk range for sexual re-offending (though the Crown adds that it does not appear that the assessment took into account “T”’s complaint).

273. The Crown notes that in Tuite v R [2018] NSWCCA 175, Hoeben CJ at CL (RA Hulme and Button JJ agreeing) said (at [73]) that:

… The difficulty for the applicant in such circumstances is that the challenge is not directed to a failure on the part of the sentencing judge to have regard to an important factor but to the weight accorded to those factors. The question of weight, of course, is part of the “instinctive synthesis” process of reasoning of the sentencing judge and ultimately involves an exercise of discretion. It is well established that matters of weight are very much the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined (Yang v R [2012] NSWCCA 49 at [25]; Clinton v R [2014] NSWCCA 320 at [40]).

274. The Crown submits that this ground should be dismissed, though acknowledging that this factor, and the matters raised in grounds 1(a) and 1(b), are relevant in determining whether the sentence was manifestly excessive (see Johnston v R [2017] NSWCCA 53 at [65]).

Determination as to ground 1(c)

275. The trial judge clearly referred to the assessment that the appellant was at low risk of re-offending and there is nothing in the sentencing remarks that suggests there was error in the manner in which that was taken into account. The submission that there is virtually no risk of re-offending (because the appellant’s children are no longer of school age) is not one that should be accepted. It is impossible to conclude that this alone would mean that there could never be further opportunity for the appellant to engage in offending conduct of the kind of which he was convicted and it would be mere speculation so to conclude in the absence of any evidence on this issue. It is sufficient to note that he was assessed as being at low risk of re-offending (albeit apparently without reference to the complaint by “T” as to earlier conduct of the same kind) and that the trial judge was cognisant of this when engaging in the exercise of sentencing the appellant. Leave to raise ground 1(c) should be granted but the ground dismissed.

Ground 2 – the sentence is otherwise manifestly excessive

276. Ground 2, that the sentence was in all the circumstances manifestly excessive, is said by the appellant to embrace grounds 1(a), (b) and (c) but also to encompass the submission that the appellant’s age and lack of criminal antecedents are matters warranting a finding that a less severe sentence was warranted in law and should have been passed (see s 6(3) Criminal Appeal Act). In light of the conclusion in relation to ground 1(a) this Court must now re-sentence the appellant. Hence it is not necessary to determine ground 2. However, the matters raised in relation to ground 2 are relevant in that re-sentencing exercise and we note below the submissions made in that regard.

277. In Hughes v R [2018] NSWCCA 2 at [86] this Court (Payne JA, RA Hulme and Garling JJ) summarised the principles concerning a ground of appeal alleging manifest excess:

[86] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

1.    appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2.    intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3.    it is not to the point that this Court might have exercised the sentencing discretion differently;

4.    there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5.    it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

Crown submissions

278. In circumstances where the appellant accepts that the objective seriousness of the offences (apart from count 1) fell, as the trial judge found, in the mid-range (see transcript 8 December 2017 at 4.30-5.9; ROS 6, 7) and that there is no challenge to the length of the indicative sentences or the variation of the non-parole period pursuant to the finding of special circumstances, the Crown identifies the real issue on this ground of appeal as being the degree of notional accumulation.

279. The Crown emphasises that five separate offences were committed against the complainant (albeit on the one occasion) when she was 10 years old; points to the finding by the trial judge that the appellant’s conduct in telling the complainant that “X” “liked it” was particularly reprehensible (ROS 6); and notes that on numerous occasions the complainant told the appellant that she had had enough and to stop. It is submitted that the repetition of the appellant’s conduct is revealing of his desire and his control over the complainant and the circumstances in which she found herself; that his conduct was brazen; that the complainant was essentially trapped with the appellant (having tried to think of how she might escape); and that the licking noise that the complainant heard was particularly disturbing.

280. Insofar as it was submitted for the appellant that the conduct was part of the one event, the Crown points to the evidence that when the complainant returned from the bathroom the appellant assured her he would not touch her again (T 88.26) but then again took advantage of her and again penetrated her vagina (count 5).

281. The Crown notes that in the sentence proceedings Counsel appearing for the appellant accepted that there would have to be some notional accumulation of the indicative sentences (POS 5.27ff). The Crown submits that this concession was well made; that the appellant’s offending was manipulative and brazen; that each of the offences was serious; that there was an escalation of conduct, including repetitious conduct, and the offences occurred even after the complainant had said that she had had enough and had left the lounge room.

282. Thus it is submitted that the sentence to be imposed on the applicant therefore required a significant degree of notional accumulation and that issues of the breach of trust, delay and the low risk of re-offending do not detract from the need to have done so. It is submitted that it was a matter for the trial judge to determine how the sentences should be structured to ensure that the overall sentence was appropriate for the total criminality involved (see Franklin v R [2013] NSWCCA 122 at [46]).

Re-sentence

283. As noted, it follows from the conclusion in relation to ground 1(a) that this Court must re‑sentence the appellant. We note that the Crown did not submit that no less severe sentence was warranted in law.

284. The findings of the trial judge on sentence are summarised above. Save for the matters that were the subject of grounds 1(a) and 1(b), there was no challenge to those findings including her Honour’s characterisation of the objective seriousness of the offences. This Court agrees with and adopts those findings. As noted, her Honour made a finding of special circumstances for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act and imposed an aggregate sentence that included a non‑parole period that was 60% of the total sentence. This finding appears to have been generous to the appellant but it was not challenged on appeal nor the subject of submissions. The Court also agrees with and adopts the approach of the trial judge to totality. Otherwise, we note that no evidence was read on the appeal on the “usual basis” (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]).

285. In relation to ground 1(a), it follows that counts 3, 4 and 5 should not be treated as having been aggravated by any abuse of a position of trust by the appellant in relation to the complainant. In relation to ground 1(b), i.e. delay, as noted there was no evidence that the appellant was left in “uncertain suspense” for any period (Blanco v R [1999] NSWCCA 121 at [16]). Otherwise, we note the emphasis placed by the appellant’s counsel on his age and lack of criminal antecedents.

286. Like the trial judge, we consider it appropriate to impose an aggregate sentence. Also, in the exercise of its own discretion afresh, this Court determines than the sentences imposed by the trial judge for counts 1 and 2 are appropriate. In relation to counts 3, 4 and 5 the Court considers that indicative sentences of 4 years and 3 months, 2 years and 6 months and 3 years and 3 months for counts 3, 4 and 5 respectively are appropriate. The total sentence is 7 years’ imprisonment and the aggregate non‑parole period is 4 years and 2 months.

287. Accordingly the orders of the Court are:

1. Leave be granted to raise ground 2 of the appeal against conviction and dismiss the appeal against conviction;

2. Leave be granted to raise ground 1 of the appeal against severity of sentence and the appeal be allowed;

3. Set aside the sentence imposed by Bright DCJ on 8 December 2017;

4. In lieu thereof:

1. impose an aggregate sentence of 7 years commencing on 7 December 2017 and expiring on 6 December 2024;

2. pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 4 years and 2 months commencing 7 December 2017 and expiring 6 February 2022;

3. specify that the earliest date the applicant will be eligible to be released on parole is 6 February 2022;

4. pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicate to the appellant and record that an aggregate sentence is imposed and that the sentence that would have been imposed for count 1 on the indictment is 9 months’ imprisonment with a non-parole period of 5 months; for count 2 on the indictment the sentence that would have been imposed is 2 years’ imprisonment with a non-parole period of 1 year and 3 months; for count 3 on the indictment the sentence that would have been imposed is 4 years and 3 months’ imprisonment; for count 4 on the indictment the sentence that would have been imposed is 2 years and 6 months’ imprisonment; and for count 5 on the indictment the sentence that would have been imposed is 3 years and 3 months’ imprisonment.

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Amendments

09 November 2018 - Paragraph 245 - minor typographical error

Decision last updated: 09 November 2018