BP v R; R v BP - [2010] NSWCCA 303

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: BP v R; R v BP [2010] NSWCCA 303

HEARING DATE(S): 10 September 2010

JUDGMENT DATE:
13 December 2010

JUDGMENT OF: Hodgson JA at 1; Price J at 142; Fullerton J at 143

DECISION: On the appeal against conviction: Appeal against conviction dismissed.
On the Crown appeal against sentence:
1. The Crown appeal against sentence be allowed in part.
2. The sentence imposed on count 11 is confirmed.
3. The sentences imposed on counts 2, 8 and 10 are quashed and in lieu thereof the following sentences are imposed:
On count 10 a term of imprisonment of 2 years to commence on 13 November 2009 and to expire on 12 November 2011, with a non-parole period of 12 months to date from 13 November 2009 and to expire on 12 November 2010.
On count 8 a term of imprisonment of 2 years to commence on 13 March 2010 and to expire on 12 March 2012, with a non-parole period of 12 months to date from 13 March 2010 and to expire on 12 March 2011.
On count 2 a term of imprisonment of 3 years to commence on 13 September 2010 and to expire on 12 September 2013, with a non-parole period of 15 months to date from 13 September 2010 and to expire on 12 December 2011.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Sexual offences alleged by different complainants against same accused – Tendency evidence – Coincidence evidence – Whether separate trials should have been ordered – Whether significant probative value – Whether probative value substantially outweighed prejudicial effect – Risk of concoction or contamination of evidence – Whether errors in directions to jury. - CRIMINAL LAW – Crown appeal against sentence – Several sexual offences against minors – Whether sentencing judge erred in imposing individual sentences and/or in failure to partially accumulate – Whether aggregate sentence manifestly inadequate.

LEGISLATION CITED: Crimes Act 1900, s 61M, s 76 (since repealed)
Crimes (Appeal and Review) Act 2001, s 68A
Crimes (Sentencing Procedure) Act 1999, s 44
Criminal Appeal Act 1912, s 5D
Criminal Procedure Act 1986, s 29
Evidence Act 1995, ss 97, 98, 101
Parole of Prisoners Act 1966

CATEGORY: Principal judgment

CASES CITED: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
R v Ananthanarayanan (1993) 98 Cr App Rep 1
R v Basha (1989) 39 A Crim R 337
Bradbery v R [2008] NSWCCA 93
CGL v DPP [2010] VSCA 26
R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492
R v Colby [1999] NSWCCA 261
R v DCC [2004] VSCA 230; (2004) 11 VR 129
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126
R v Ford [2009] NSWCCA 306
R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631
GRD v R [2009] NSWCCA 149
Hoch v The Queen (1988) 165 CLR 292
R v Li [2003] NSWCCA 407
R v Maclay (1990) 19 NSWLR 112
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Moon [2000] NSWCCA 534; 117 A Crim R 497
Nelson v R [2007] NSWCCA 221
R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433
O’Keefe v R [2009] NSWCCA 121
Pearce v R [1998] HCA 57; 194 CLR 610
R v PGM [2008] NSWCCA 172
R v Phan (1990) 54 SASR 561
R v PWD [2010] NSWCCA 209
R v RN [2005] NSWCCA 413
R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182
R v Witchard [2007] NSWCCA 167
Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 61 FCR 171

PARTIES: BP (appellant/respondent)
CROWN (respondent/appellant)

FILE NUMBER(S): CCA 2008/11515

COUNSEL: M THANGARAJ (for BP)
S DOWLING (Crown)

SOLICITORS: Greg Walsh & Co (for BP)
S Kavanagh (solicitor for Public Prosecutions) (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/3406

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

LOWER COURT DATE OF DECISION: 17 December 2009

- 1 -

2008/11515
2009/3406

HODGSON JA
PRICE J
FULLERTON J

13 DECEMBER 2010

BP v R; R v BP

Judgment

: On 27 October 2009, a jury returned verdicts after a trial in which the appellant BP had faced eleven counts of sexual assault upon three complainants. These counts, as left to the jury, were as follows:

1. Indecent assault upon SP, a female under the age of 16 years namely between 5 and 6 years of age, occurring between 4 September 1970 and 3 September 1972 at Bathurst.

2. Indecent assault upon SP, a female under the age of 16 years namely between 7 and 8 years of age, occurring between 4 September 1972 and 3 September 1973 at Bathurst.

3. Indecent assault upon SP, a female under the age of 16 years namely between 12 and 14 years of age, occurring between 4 September 1977 and 4 September 1979 at Bathurst.

4. Aggravated indecent assault upon TM, a person under the age of 16 years namely 6 years, occurring between 14 September 2002 and 13 September 2003 at Trunkey Creek.

5. Aggravated indecent assault upon TM, a person under the age of 16 years namely 9 years, occurring between 26 December 2005 and 31 January 2006 at Trunkey Creek.

6. Sexual intercourse with TM, a person under the age of 10 years namely 9 years, occurring between 26 December 2005 and 31 January 2006 at Trunkey Creek.

7. Aggravated indecent assault upon TM, a person under the age of 16 years namely 9 years, occurring between 26 December 2005 and 31 January 2006 at Trunkey Creek.

8. Aggravated indecent assault upon TP, a person under the age of 16 years namely 8 or 9 years, occurring between 20 March 2000 and 20 December 2001 at Trunkey Creek.

9. Sexual intercourse with TP, a person under the age of 10 years namely 8 or 9 years, occurring between 20 March 2000 and 20 December 2001 at Trunkey Creek.

10. (alternative to 9) Aggravated indecent assault upon TP, a person under the age of 16 years namely 8 or 9 years of age, occurring between 20 March 2000 and 20 December 2001 at Trunkey Creek.

2 The maximum penalties for the relevant offences were: for counts 1 and 2, penal servitude for five years; for count 3, penal servitude for six years; for counts 4, 5, 7, 8, 10 and 11, imprisonment for ten years; for count 6, imprisonment for 25 years; and for count 9, imprisonment for 20 years.

3 The trial judge directed a verdict of not guilty on count 4. The jury returned verdicts of not guilty on counts 1, 3, 5, 6, 7 and 9; and verdicts of guilty on counts 2, 8, 10 and 11.

4 On 17 December 2009, the trial judge Boulton ADCJ sentenced the appellant as follows: on count 2, two years imprisonment with a non-parole period of eight months; on count 8, 12 months imprisonment with a non-parole period of six months; on count 10, 12 months imprisonment with a non-parole period of six months; and on count 11, eight months imprisonment with a non-parole period of four months.

5 The various sentences were accumulated in such a way that the appellant was sentenced to a total non-parole period of 16 months from 13 September 2009, expiring on 12 January 2011; and a total term of imprisonment of 32 months from 13 September 2009, expiring on 12 May 2012.

6 The appellant appeals against his convictions. The Crown appeals against the sentences. This judgment deals with the appellant’s appeal.

Factual background

7 The appellant was born in 1945. At the time of the trial, he was 64, and he had been married to his wife MP for forty-six years.

8 The appellant and MP had five children. A son DP was the eldest, born in 1964. Next was a daughter, the complainant SP, born in 1965. There followed another son GP, born in 1968, a daughter JS born in 1969 and a son CP born in 1971.

9 The complainant SP lived with her parents and siblings in the Bathurst area until she was 14. Counts 1 to 3, alleging assaults on SP, were alleged to have occurred between 1970 and 1976. When SP was 14, she went to live with her grandparents. Shortly afterwards, SP’s parents and the other children moved to Trunkey Creek.

10 SP had four children, including a girl TM born in 1996. Her brother CP had three children, including a girl TP born in 1992.

11 Counts 8 to 11 (alleged assaults on TP) were alleged to have occurred in 2000 and 2001.

12 Count 4 (an alleged assault on TM) was alleged to have occurred in 2002 to 2003.

13 On 27 December 2005, SP and her partner MF went to New Zealand, returning on 5 or 6 January 2006. They left SP’s daughter TM with SP’s parents, namely the appellant and MP. Counts 5 to 7 (alleged assaults on TM) were alleged to have occurred during this period.

14 On 25 July 2007, SP spoke to Detective Hadley of the Bathurst Police, and stated that she had been sexually assaulted by the appellant between 1970 and 1976, as had her daughter TM between 2003 and 2006. SP made a written statement on 31 July 2007; and TM made a record of interview on 20 August 2007.

15 On 22 October 2008, TP made a record of interview alleging assaults by the appellant between 2000 and 2001.

16 The appellant was charged with 16 counts of sexual assault involving six complainants (including the complainants SP, TP and TM, and also including JS and VP, a niece of the appellant) between 1956 and 2006.

17 On 22 April 2009, following a voir dire hearing, the trial judge determined an application for separate trials in relation to each of the six complainants, deciding that the trial of complaints by SP, TM and TP should proceed together. A trial of those complaints then commenced, but was aborted due to a problem with the jury.

18 A second trial of those complaints commenced on 12 October 2009. Objection was taken on behalf of the appellant to the admission of a telephone conversation, and there was a further voir dire hearing on 13 October 2009. The trial then proceeded, with the result referred to above.

Statutory provisions

19 The appeal against conviction involves application of the following statutory provisions.

20 First, there is the provision concerning trial of offences alleged to have been committed by two or more persons in s 29(1) and (3) of the Criminal Procedure Act 1986:

29 When more than one offence may be heard at the same time

(a) the accused person and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

…..

21 Then, there are the provisions of the Evidence Act 1995 concerning tendency and coincidence evidence, particularly ss 97(1), 98(1) and 101, and the definition of “probative value” in the Dictionary:

97 The tendency rule

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

…..

98 The coincidence rule

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

……

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

…..

probative value

Tendency and coincidence notices

22 In February 2009, notices were served on the appellant pursuant to ss 97 and 98 of the Evidence Act.

23 The notice under s 97 stated that the tendency sought to be proved was the appellant’s tendency to have a particular state of mind, namely an unusual sexual interest in his daughters SP and JS, his niece VP and his granddaughters TM and TP, and to act in a particular way as evidenced by his acts. The notice alleged, in support of this tendency:

(a) The persons in question were related to the appellant;

(b) They were under his authority at material times;

(c) Abuse on them commenced when they were aged between four and seven years;

(d) The modus operandi in relation to each was substantially similar, in that the appellant would place his hand inside their panties and penetrate or massage their vaginas;

(e) The appellant would often assault them in their beds at night;

(f) The appellant would warn them not to tell anyone or he would go to gaol;

(g) The appellant told some complainants to keep a look out for people coming;

(h) The appellant would encourage some complainants to sit on his legs enabling him to penetrate/massage their vaginas;

24 The notice under s 98 gave notice that the Crown intended to adduce evidence that two or more related events occurred to prove that, because of the improbability of the events occurring coincidentally, the appellant did a particular act or had a particular state of mind. The two or more related events were identified as events in which the appellant massaged the vagina of, digitally penetrated and indecently assaulted the complainants and JS and VP; the particular acts were identified as the indecent assaults in question; and the particular state of mind was identified as an abnormal sexual interest in his daughters, niece and granddaughters. The same particulars (a) to (i) above were relied on.

April

voir dire

25 Before the appellant’s first trial commenced, there was a voir dire hearing to deal with the appellant’s separate trial application, and also to give the appellant an opportunity to cross-examine in the absence of the jury two witnesses who had not been called at the committal hearing, namely the appellant’s daughter JS and the appellant’s wife MP, conformably with R v Basha (1989) 39 A Crim R 337.

26 At this voir dire, material from the committal was tendered, including statements of SP dated 31 July 2007 and 2 July 2008, of MF of 23 January 2008, of VP of 10 August 2007, of DP of 27 November 2007 and 19 July 2008, of Detective Hadley of 31 December 2008, the transcript of interviews with TM, TP and the appellant, and the transcript of a telephone conversation on 6 December 2007 between the appellant and SP.

27 SP’s statement of 31 July 2007 asserted that she had been sexually abused by the appellant from about the age of five until she started high school, weekly at least and sometimes daily. The statement asserted that when SP was about six, the appellant called her into a caravan in the backyard of the family house at Gorman’s Hill, where he placed his hand into her underpants, touched her vagina and inserted his finger into her vagina (count 1). This conduct happened again on other occasions.

28 The statement asserted that at night-time, the appellant would come into SP’s bedroom and kneel next to her bed. SP would pretend to be asleep. The appellant would slip his hand underneath the blankets and sheets, and under her nightdress and underpants, and would insert his fingers into her vagina. (One such incident was count 2.)

29 The statement asserted that on one occasion, when SP was 10 to 11 years old, she was in the boys’ bedroom helping her mother tidy up. The appellant came in and asked her to kneel on the bed, and to look out the window and tell him if her mother moved to come in side. The appellant put his hand under her dress and inserted his fingers in her vagina (count 3). She told him to leave her alone, and he said, “if you ever tell anyone about this I will go to gaol and it will be your fault”.

30 The statement asserted that when SP was 13 or 14, she went to live with her maternal grandparents in Bathurst.

31 The statement asserted that the appellant’s mother died in 1966. Not long after the mother’s funeral, SP’s mother MP telephoned SP and told her that Jenny (SP’s uncle’s girlfriend) had spoken to her at the funeral and told her that the appellant had been touching SP. SP hung up and started crying: she did not believe that anyone knew what had been happening.

32 The statement asserted that just after Christmas 2005, SP and MF went to New Zealand for ten days on holiday. TM and SP’s sons stayed with the appellant and MP. SP made MP promise her that TM would be safe and was to sleep in the bedroom between the two elder boys. In 2006, TM said to SP “Mummy Pop touched me” and that he had done so “since I was little”; and that “the last time was when you and [MF] went overseas. He even touched me when I was on one knee and [her brother] was on the other knee”.

33 The statement asserted that a month or so later, the appellant and MP came to visit, and TM stood as far away from the appellant as she could; and SP asked them to leave.

34 The statement asserted that later in 2006, SP told MF “everything”. Later, TM told them that once, when she and the appellant were on the tractor, the appellant put his hands down her pants and touched her privates. SP telephoned MP to tell her what TM had told her. MP asked, “what’s he done now?” SP told MP, and MP cried.

35 In her statement of 2 July 2008, SP referred to an occasion when her sister JS asked if TM and a brother could go to her place and play with her son. After an hour, TM came home and said, “Nan and [JS] were saying that I was lying about Pop”. This led to arguments between SP on the one hand and JS and MP on the other.

36 In the record of her interview dated 20 August 2007, TM said the appellant touched her rude parts at his house last year while her parents were overseas. She had helped him feed horses, and he put his arm round her shoulder and touched her on the breast and squeezed it (count 5). She told him to stop and he did.

37 TM said that when they were walking back from the paddock, the appellant put his arm between her legs and touched her.

38 TM said that one time she and the appellant went on the tractor. The appellant was on the tractor seat and she was sitting on his lap. He put his hand between her legs and said “does that feel good?” she said “what?” and he said “me touching you”. His hand was in her vagina, inside her clothes, and he moved his fingers up and down (count 6). She asked to get off and he said no, she asked again and he again said no. She started crying and said she wanted to get off, and he stopped the tractor and she jumped off and ran inside crying.

39 TM said the first time she could remember something like that happening was when she was six, and she and her younger brother were sitting on the appellant’s lap, one each leg. She was wearing boxer shorts and pyjamas. The appellant put his hand down the front of her pants from the top (count 4). He nearly touched her, but she said “what are you doing?” he said “sorry darling” and stopped.

40 TM said that on another occasion while SP was in New Zealand, TM was filling a bucket and the appellant grabbed her, one of his arms was around her body and the other in between her legs. He put his hand in her pants down the front, touched her vagina and wiggled his finger (count 7).

41 TM said that in about 2006, her brother JC told her that the appellant had asked to speak to her on the telephone, and she took the phone from JC. The appellant was crying and said “could you ever forgive me?”, to which she said “No”. He said, “I’m really really really sorry”.

42 In the record of her interview dated 22 August 2008, TP said the appellant molested her from when she was seven until she was nine.

43 TP said the first time was when the whole family was together in a room, being her parents and her two siblings, SP and her four children and her partner MF, JS and her three children, and DP and his wife and two children. The adults were sitting at the dining room table. TP was around seven or eight years old. The appellant came and sat next to her, patted his lap and said “come and sit on my lap” which she did. When she sat on his lap, he moved his hand and started touching her on her vagina (count 8). He did this for about two or three minutes. No one noticed or said anything. While he was doing it, he told her not to tell anyone.

44 TP said that the second time, about two weeks later, she and her sister were each in a single bed in the bedroom upstairs that was closest to the main bedroom. TP was asleep and woke up with pain from her vagina. She could feel the appellant’s hand moving around, touching her vagina. The appellant’s hand was between her legs inside her underwear, and his fingers were on the outside of her vagina. She felt him trying to stick his finger inside her vagina (count 9 and in the alternative count 10). He was kneeling beside the bed. TP heard MP call out for the appellant asking where he was; and the appellant answered that he was only tucking TP and her sister in. TP did not tell anyone because the appellant had told her not to tell anyone because he would go to gaol.

45 TP said that about a week after the first time in the lounge room, the appellant told her he had something to show her in the shed, so she went out there. He pulled her shirt up and started to suck her breast (count 11). Then he told her to look out for people. Before he sucked her breast, he told her he was going to suck it to “make her boobs bigger”. He only sucked her right breast because she saw her father coming outside looking for them, and she said to the appellant that her dad was coming, and he put her shirt down and moved away from her. He told her not to tell anyone.

46 TP said that the appellant had given her money, usually $5, a necklace, a diary and book of nursery rhymes. There was a conversation in the lounge room when no one else was there, and she was telling him not to touch her anymore; and he said that he wouldn’t anymore, but he did not stop doing it. He said he would give her money if she let him keep doing it. Every time he gave money to her he said “sh don’t tell anyone”. He would touch her underneath the table before he gave her the money.

47 TP said that when they sat at the dining table, the appellant would put his hands underneath the table and start touching. Sometimes he would put his foot up, sometimes he would touch her on the knee or leg, and sometimes on her vagina over her clothing.

48 TP said that about two months prior to the interview she had told her boyfriend about “the table and the bedroom”. The first person she had ever told was her friend ST, when she was in year 8. She told her everything that happened, including the bedroom incident, when they were in one of the courtyards at school.

49 TP said that on the Wednesday prior to the interview with the police, her father asked her if the appellant had touched her and she said yes. Then her father told her aunts and uncles. TP had not seen SP for two years until she saw her the Saturday before the interview. SP asked her how she was, and when TP said she was alright, SP said “don’t worry, we’ll get him for you”. Before SP had told her father that the appellant had touched her, her father had told her that the appellant had touched TM, but she did not know the circumstances or when.

50 The record of the telephone conversation of 6 December 2007 included the following, V2 being SP and V3 being the appellant:

V.2 There's a couple of things I need to know that I need, I can't get on with my life until I ask you a couple of things only you can answer 'em.

V.3 Yep, no, that's fine.

V.2 Are you going to answer them for me?

V.3 I will.

V.2 Why, why did you molest [TM]?

V.3 Well don't think I really did to be quite …

V.2 What do you mean you don't think you really did, don't forget this is me you're talking to, you molested me, why [TM]?

V.3 I know, I'm very, very sorry ...

V.2 Why [TM]? Do you hate me that much you had to molest me and then turn around and molest my daughter 30 years later?

V.3 No, no, no. No, no, no, that's not it and the only excuse for doing it to you is back then, back them days I was on bloody Panadine Forte and Valium every day for me, before I even had it operated on so, and then - - -

V.2 What so I had to pay for that?

V.3 No, no, listen, just listen and it's all right till you bloody drink and I just realised the other day if you drink … … … gets into your system you, you sort of lose it. I know that's no excuse but I’m trying to satisfy your questions … … didn't set out deliberately to do it or, listen I love you [SP], I love you.

V.2 Then why [TM], why did you turn … do you know how much that's hurt me?

V.3 I realise that and I’m very, very sorry. I think, well I don't know, see I don't know what's been said and what hasn't been said, and I know a lot of it's exaggeration, I know a lot of it's …

V.2 Yeah, but this is me, you molested me O.K. I know the truth.

V.3 I know, I know that, I'm not trying to deny anything, I’m not trying to deny anything and I'm very, very sorry, I'm very, very sorry to hurt you I really am. [TM], I never upset [TM] like …

V.2 You have, do you know what you've done to her. She doesn't trust anybody and she says to me, why did poppy do that to me and what am I supposed to say to her?

V.3 Look, I, I don't know what she's saying but I mean ---

V.2 She saying there was a time on a tractor and you had your hand down her, down her pants.

V.3 No, that's not, that's not true that's, it might've been against there but it wasn't inside her underwear, it was not, and I swear that on my oath on your mother's or on anyone's oath. It wasn't on the big tractor, it's on the little tractor, and, and to have that in second gear … … second gear. And Tommy was on it, I know the days it was done and Tommy was on it as well … … with the front and back with the, with the … … the pump on it and to push the gear stick back it goes into your, into your … into your crutch, it does, and I'm not denying that. But I didn't put my hands inside her … I did not and I don't care what anyone says, [SP], I'm not going to admit to something that I didn't, and I'll swear that I didn't, I'm sorry I've upset you and I'm sorry [TM] feels that way. [TM], the last, the last time we went up to your house [TM] ran out to the car and. Said, here's nan and pop. If I had of scared her in any way she would not, she would not have greeted us the way she did, I did not scare her I think it’s just all the talk and everything that's going on, and it's gotten into her mind and it's making it worse. I really …

V.2 But she didn't know about any of this until she told me that's when it all come out.

V.3 … yes, it wasn't deliberate it, it wasn't deliberate I'll tell you now it really, really wasn't, it really, really wasn't. And if you want to come out and have a look at the little trailer and, I give Angus a ride on it there a few weeks ago he was out here and whatever. And when this has gone on and that I sort of looked at it and I thought well that is, the-gear stick is going into the lap too far and it could, it could seem as though that's deliberate but it wasn't, it wasn't deliberate, it wasn’t deliberate. I’m very, very, sorry for what I done to you them years ago and I'm very sorry as it is too but, I just, it's not as it seems, it really, it really isn't, I'm very, very sorry, if there's anything I can do to make up to you I, I would, I really would, I really, really would and I'm very, very sorry. I'm very sorry, [SP], please don't be upset I know - - -

V.2 I … all my life I can't, I just needed to know why.

V.3 O.K. it's not as, it's not as it seems, it may seem that way and as [TM] explained it, it might seem that way but it's not, honestly it's not.

V.2 … all right.

V.3 I'm sorry, I'm sorry I, I can't do anything or say anything more than that, I'm sorry it's, but it's not as it seems it really isn't, it really isn't.

V.2 All right, can I speak to mum then?

V.3 I'm sorry, kid, I really, really am and if I could, if I could sit down with you or meet you, you and [TM] I really would … and she can listen to what I've got to say, and I'm sure she will agree, I really do. And if you want to sit down and talk with her somewhere we'll do that ---

V.2 ...

V.3 --- and you can ask me what you like in front of [TM] and I'll answer the questions ---

V.2 I’ll get back to you on that then ---

V.3 O.K.

V.2 --- I’ve just gotta … ---

51 JS gave oral evidence to the effect that her brother DP had told her things about alleged sexual abuse of her, that she didn’t have any memory of it, and that when she was discussing with SP what happened to TM, she (JS) had said to SP “doesn’t she [TM] need to see a psychiatrist”, and SP had said “no, because nothing happened”. (JS was not called by either the Crown or the appellant at the trial.)

52 MP gave oral evidence. She said she spoke to TM with JS because she was trying to work out what the truth was. In relation to one alleged incident, she said TM had said “that’s mum’s story”. MP denied making various statements suggesting that she was aware of the appellant molesting family members. (MP also was not called by the Crown or the appellant at the trial, and the trial judge did not consider her a reliable witness.)

53 Submissions for the appellant given to the trial judge during the hearing included a chronology, which included the following:

Chronology of Events
…..
1972-76	Time frame of alleged incidents involving [SP] (not reported to police until 30/7/2007 - statement 31/7/2007)
1973-77	Time frame of alleged incidents involving [VP] as a child (not reported to police until 10/8/2007
…..
Oct/Nov 1996	Funeral of [appellant’s mother] - discussions within family about [the appellant] molesting [SP], [JP], ….. (per [CP] p 12)
Dec 1996 (approx)	[MP], [JS], [SP] discuss allegations from Jenny about [the appellant] molesting [SP] and [JS] (per [SP] p10-2/7/2008)
March 2000 - Dec 2001	Time frame of alleged incidents involving [TP] (not reported to police until 22/10/2008)
Dec 2005 -Jan 2006	Time frame of alleged incidents involving [TM] (not reported to police until 20/8/2007)
Early 2006	[TM] allegedly discloses to [MF] and [SP] (not reported to police until August 2007) [SP] p 25 and 28 - Following [TM's] alleged disclosure [SP] tells her mother, [JS] and [DP] about [TM] but not police (per [SP] p 29)
…..
…..
25/7/2007	8.00am Hadley had a conversation with [SP] (statement doesn't indicated who initiated call). - [SP] stated she had been sexually assaulted (1970 - 1976), as her daughter [TM] (2003 -2006) and sister [JS] 9.00am Hadley had a conversation with [JS] she allegedly stated she was sexually assaulted by the Applicant when 11 and 13 years old. (1970 - 1973) (No statement provided)
30/7/2007	Hadley left telephone messages for [JS], [SP] and [VP]. 11.10 Hadley has telephone conversation with [SP] and arranges interview. Hadley p17 - says he had a number of telephone conversations with [VP] …..
31/7/2007	1^st statement of [SP] Allegations of sexual assault from 1970 -1976 P 19 - after funeral in 1996 for [GP] (appellant's mother) [MP] rang and said Jenny had said that [the appellant] had been touching [SP] and [JS] P 29 - [SP] rings mother, [DP] about [TM] P 31 - [DP] told me that [the appellant] had a lot to do with Judy's death and that there was a lot more to it than a lot of people knew.
10/8/2007	Statement of [VP] made to Detective Scott at Dubbo. - Alleges sexually assaulted by the Applicant in 1973 (34 years later). NB also events in 1977 and 1987 (aged 18). - Paragraph 12 [VP] realised in 1987 (20 years ago) that [appellant] had done things to her "but I don't know what" [VP] only came forward after hearing about allegations involving the Applicant and [TM].
…..
20/8/2007	Record of Interview with [TM] alleging incidents in 2003 to Jan 2006 (delay of 1 year 7 months) Q 122 - '... my grandmother told me that he said to her that he snuck into the room while I was asleep and did it" Q128 - "told my mum, and then I went to my aunties(sic) house and told her, and my grandmother came down" Q 129 - ([MP] told me) that he told her that he was sneaking into my room while I was asleep. A318 - Like that's just all the things I can remember cause I was trying to forget until my mum told me about this and... " Q319 -"What do you mean your mum told you about this?.. " A320 - Like we, my mum told me that someone turned him in and, they wanted to do a statement ...
27/11/2007	1^st statement of [DP] - p19 -7 or 8 years ago (1998/99) got a call from [SP] she told me that dad touched her when young. - p20 over the next week or so I had spoken to a lot of the family about what happened. - p25 about 1 year ago (Nov 2006?) [SP] told me something that involved her daughter [TM].
24/1/2008	Supreme Court Bail application of [appellant] - Affidavit of [JS] tendered denying complaint to Hadley.
……
2/7/2008	[SP's] 2^nd statement
19/7/2008	2^nd statement of [DP] P4 - first telephone contact with [SP] 98/99 P10 - [DP] spoke to [SP] P11 - couple of days after speaking to [SP] I spoke to [GP] - he said he had heard about it. …..
22/10/2008	Record of Interview with [TP] in relation to allegations between March 2000 and December 2001 (delay of 7 years) - [TP] saw [SP] prior to making to contacting police. - [TP] aware of allegations involving [TM] (A638 and onwards) - [TP] states she doesn't know details involving [TM] just that 'pop touched her' (A659) - [TP] claims she became aware of details of [TM] through her dad (A654) but in DPP conference 6/3/2009 she states she was told by [MP] (see below) - A640 –[TP] describes [SP] saying "Don't worry we'll get him for you". - [TP] describes her father talking to other family members
6/3/2009	DPP conference with [TP] (discloses 15/4/2009) - When [MP] first spoke to [TP] – [MP] said that [appellant] had touched [TM]

Decision on the application for separate trials

54 In deciding to reject the application for separate trials, the trial judge said this:

… I accept that the evidence to be brought by way of coincidence and tendency evidence in the case involving these three complainants satisfies the test of admissibility set out in s 97(1) and s 98(1). It has significant probative value which outweighs its potential prejudicial value. This aspect does not appear to be really challenged.

Hoch v R

Hoch

"... if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible."

"Here his Honour identified circumstances of association between the complainants which plainly raised the question whether there was a real chance that they had put their heads together to concoct their allegations. That is not to say that a trial judge should lightly conclude that there is a real chance of conspiracy among complainants in sexual cases whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion but the circumstances of their contact or friendship may warrant an enquiry whether there was a real chance that they had agreed to concoct their allegations."

The evidence in the present case would suggest that following a family funeral in 1996 when there had been a large family gathering, allegations of sexual molestation of family members by the accused began to circulate. It was following that that [SP] made her allegations. There is evidence that [JS] made allegations shortly afterwards as well though [JS] in her evidence on a Basha enquiry yesterday either attributed these to information from her brother [DP] or professed not to remember them at all. Certainly the investigating police officer who contacted [JS] on 25 July 2007 recorded such complaints in this COPS report.

[SP] and her husband went overseas in late 2005 and the first few days of 2006, leaving the child [TM] in the care of her parents - that is, the current accused and his wife. According to [SP], she gave strict instructions to her mother following her own complaints of sexual molestation that [TM] was not to be left in the unsupervised care of the accused. Shortly after her return, the child made the complaint of having been molested. This was followed by bitter recriminations against the mother by [SP] at having failed in her responsibility of care. These were compounded when the mother, seemingly with the assistance of [JS], engineered a plan to take [TM] out of her mother's immediate care and question her concerning her complaints. Again, [SP] was indignant that the mother had interfered by speaking to [TM] without [SP's] knowledge or consent.

Any risk of concoction by [SP] and [TM] in these circumstances is extremely remote. The risk that such may have occurred is further offset by the accused's answers in a pretext phone call from [SP] on 6 December 2007 where he makes admissions of having molested [SP] as a child and makes some relatively minor concession concerning an event that may have been the basis of one of [TM's] allegations.

The child [TP] is the daughter of [SP's] brother [CP]. [CP] had assisted others in the family in securing bail for his father after his arrest on 8 February 2008. It was later again that [TP] was asked by the accused's wife if she had been touched by her grandfather. Initially [TP] denied it and also denied it when asked by her father but subsequently she admitted to her father that it had happened. There is no real possibility that [TP] was involved in concocting her allegations with either [SP] or her cousin [TM].

Counsel for the accused, Mr Johnston, pursued a secondary line of argument that [TM's] and [TP's] allegations had been contaminated during the lapse of time between their making the allegations in the first place and the recording of their statements. [TM's] statement was recorded on 20 August 2007 and [TP's] not until 22 October 2008. There is nothing to suggest that either [TM] or [TP] was told of the precise nature of allegations made by [SP] or that their complaints underwent any change in between their initial complaints and the making of their statements. If anything, the accounts given to the accused's wife by [TM] when she had been questioned appear to relate to similar type topics that later found their way into the statement made by [TM] and the counts involving [TM] on the indictment.

October

voir dire

55 The second trial of the appellant commenced on 12 October 2009. Objection was taken to the admission of the record of the telephone conversation referred to earlier. Detective Hadley and SP both gave evidence on the voir dire concerning the circumstances of the making of that telephone call. The trial judge ruled in favour of admitting that evidence, and no challenge is now made to that decision.

Crown case

56 Evidence of SP was presented to the jury by playing a recording of the evidence she had given at the April trial. Her evidence in chief substantially accorded with what she had said in the statements set out above, which had been considered in the April voir dire hearing, except that she said in relation to the count 3 incident that this happened when she was 12 years old, about four months before she got her first period when she was 13.

57 SP’s evidence was challenged in cross-examination. She said she was wrong about her age when she told the police in her first statement she was 10 or 11 years old at the time of the count 3 incident.

58 SP said that after her grandmother’s funeral in 1996, her mother called her and asked her if anything had happened with the appellant, and SP told her “he’s been touching me since I was a little girl”; and that that was the first time she had ever told anyone.

59 The first time SP spoke to police was when Detective Hadley spoke to her on 25 July 2007. SP said she did not tell TM what to say to police. She did not know what the appellant had done to TM and did not wish to know.

60 SP said she was aware her niece TP had made a complaint, but she did not speak to TP about what had happened to her.

61 SP agreed she had visited her uncle EP, his wife and their son JP in Orange earlier in 2009, and that they discussed the allegations against the appellant. It was put to SP, and denied by her, that EP said to her “how is [TM] going to remember what happened when she was young”; that SP said “[TM] will remember because I will tell her what to say” and “[TM] will do well out of this. We will get a lot of money. [TM] and I are guaranteed $50,000 each in criminal compensation”. SP said she did not discuss money with anybody, and denied that the allegations she made against the appellant were made up for financial gain. SP said she did not tell TP she should make an application for compensation, and denied speaking to TP about anything.

62 TM’s record of interview was played. Her account was challenged in cross-examination.

63 In cross-examination, TM said that when she and her mother visited EP and his son JP earlier in 2009, they told them they had been molested. TM did not remember EP asking how she would remember what happened to her when she was little. SP did not say words like “[TM] will remember because I’ll tell her what to say”. TM did not remember SP saying words to the effect that “[TM] and I were going to get a lot of money” out of the allegation, or “we’re guaranteed $50,000 each in criminal compensation”. SP did not say she was going to get the appellant’s property. SP did not tell her what to say to police and TM did not make it up.

64 TP’s record of interview was played. Her evidence was challenged in cross-examination.

65 In cross-examination, TP said she made the record of interview shortly after she told her dad what had happened; that she had spoken to SP after she told her dad and before she did the record of interview; that she had not seen SP for about two years before that; and that SP had said to her “don’t worry we’ll get him for you”. TP said that SP did not talk to her in detail about the appellant, that she (TP) did not tell SP things about the appellant, and that SP did not tell her (TP) anything to say.

66 TM’s brother JC gave evidence that on a Sunday a couple of years previously, he was walking home with TM, and there was a call to his mobile phone from the appellant’s home phone number. The appellant asked to speak to TM, and he gave the phone to TM. He did not hear the conversation. After TM spoke on the phone, she got upset and did not want to talk much. In cross-examination, JC denied that after he said on the phone “Hi Pop”, TM had said she wanted to speak to the appellant.

67 CP, son of the appellant and father of TP, gave evidence that between about February 2000 and June 2000, he and his family stayed with his parents at the Trunkey Creek farm.

68 CP said he suffered serious injury in a motor vehicle accident, and that on occasions when he and his partner TW attended medical appointments in 2000 and 2001, the appellant and his wife looked after their three children at the farm.

69 CP said that in January 2008 the appellant had been charged with certain matters; and that at about that time the appellant came to his house to help with certain chores. CP said that during those occasions the appellant said to him he molested SP and TM. In November 2008, CP made notes of the conversation, which was signed by him and Detective Priest.

70 CP said that on 15 October 2008 he was feeding the dog with TP, and that as they were walking back to the house TP said “it’s sad what Pop done to [SP] and [TM]”, and “it happened to me dad what he has done”. She did not say what the appellant had done to her, but that “he’d done what he had done to [TM]”. That night the matter was reported to police.

71 CP said that around Christmas 2006 the appellant was looking to buy a house around the Bathurst area. CP, MP and TW were with him. The appellant told CP that he had molested SP and TM.

72 In cross-examination, CP was asked if he had made up what he had put in the November 2008 notes, and he denied this. He said that the other time the appellant told him he molested SP and TM was in 2000 or 2008, not 2006. He denied making it up to make things sound worse for the appellant.

73 TW, the mother of TP, gave evidence of an incident that occurred on the farm when she was there and when TM was five or six years old. TM and the appellant had been outside, and TM came running into the house, and the appellant came in and yelled at MP that he didn’t want TM outside with the horses. TW also gave evidence of CP telling her of a conversation he had had with TP, and of going to the police station that night.

74 MF, SP’s partner, gave evidence that they commenced living together in about 2005. On 27 December 2005 he and SP flew to New Zealand to visit his family for ten days. While they were in New Zealand, SP told him that when she lived with her parents as a child, the appellant had touched her on the vagina.

75 MF said that about three weeks after they returned, the appellant and his wife came for a barbecue. The appellant asked TM to give him a kiss and a cuddle, and TM did not do so. After the appellant and MP left, TM told him that while he and SP were in New Zealand the appellant took her to ride a horse and touched her vagina.

76 In cross-examination, MF said that after TM had spoken to him he told her to tell SP. After TM told them both, SP said straight away “that is it, I go to police”. He thought that he and SP went to Bathurst police the same week and spoke to Detective Hadley.

77 ST, a friend of TP, gave evidence that she met TP when they attended Blainey Public School together in 2002 and 2003. TP appeared upset, and ST asked her why; and although she did not remember what TP said, it was to do with her Pop sexually assaulting her. TP said that whenever she went to her Pop’s, he used to feel up her leg underneath the table near her rude parts. There was also something to do with the bedroom and her Pop feeling her private parts and licking her nipples. On one occasion, TP’s parents took her to TP’s grandparent’s house and TP pointed to her grandfather and said “that’s the one that touched me up”.

78 In cross-examination ST denied that she had made this up.

79 DP, the eldest son of the appellant, gave evidence that while growing up at the house at Gorman’s Hill, it was common for the appellant to come to the door of the bedroom in which he and his brother slept and call out their names and see if they were asleep. He would then walk into the girls’ room. This happened monthly or more often.

80 DP gave evidence that about seven or eight years prior to his making his statement to police in 2007, SP told him something that the appellant had done to her when they were all children. About a week later he went to see the appellant at Trunkey Creek; and after he swore at the appellant, the appellant said “the things I done I shouldn’t have. I’m getting help”.

81 In cross-examination it was put to DP, and denied, that the appellant did not say those words.

82 Detective Hadley gave evidence about steps taken in the course of the investigation.

Defence case

83 Evidence was given by the appellant, by JP, and by the appellant’s son GP. In his evidence, the accused denied each of the allegations the subject of the charges against him.

84 The appellant gave evidence that he did not purchase a caravan until 1977, but did own a camper van which he purchased in 1971. He said he never went into the girls’ bedroom after they went to bed.

85 The appellant gave evidence that after SP went to live with her maternal grandmother, she came home every weekend. In about 1987, SP came back to Trunkey Creek with her partner, and stayed for two and half to three years. A large number of photographs depicting family events were tendered and admitted into evidence.

86 The appellant said that while TM stayed with him and his wife when SP was in New Zealand, he took TM on a ride on his tractor. She sat behind the gear stick on the gear box, and when he put the tractor into second gear the gear stick would pull into their lap. The appellant denied he placed his hand between her legs and touched her vagina. Also during that time, he heard TM scream and saw the stallion leaning over her and he grabbed her and took her out of the stallion’s paddock and then put her down. On the day SP and MF came to pick her up, he was walking back from the paddock, and TM said “I love you Pop” and put her arm around his arm, and he said “I love you too darling” and put his arm over her shoulders.

87 The appellant said that around March to April 2006, he ceased to have contact with SP and TM, but continued to have telephone contact with TM’s brother JC. On one occasion in 2006 he was speaking to JC, and TM asked could she talk to Pop. TM spoke to him and asked how he was and when he was coming up. He did not apologise to her, because he had nothing to apologise for.

88 On 6 December 2007, he spoke to SP on the telephone, unaware that the call was being recorded by police. The appellant said that when SP referred to molesting her, he thought she was referring to an incident in the early 1980’s when he had a back injury and was taking medication. One night he had been drinking, and when he went upstairs he went into her room by mistake and fell on top of her on her bed. The appellant said that when SP asked “why [TM]?”, he said he was sorry because SP had a drug problem and he was trying to go along with her and to keep her in a frame of mind so that she could settle down and come and visit her mother.

89 The appellant denied he had been with TP in a shed on the property, or that he had touched TP at the dining table, or that he had bribed TP to allow him to touch her. He agreed he had met TP’s friend ST, but said this first occurred at TP’s parents house.

90 The appellant denied he had an argument with his son DP when he had said words to the effect that there were things he had done that he should not have done; and denied that he had ever said to his son CP that he “did it” to SP and TM.

91 JP gave evidence that earlier in 2009, SP and TM visited the house where he lived with his parents, on a date before police visited his parents. SP accused him of talking to her parents about the allegations against the appellant. SP said to JP’s father EP that she and TM were guaranteed to get $50,000 criminal compensation each, and she was laughing. SP said that she had put a writ on the appellant’s farm and the farm was going to be hers. EP told her that the appellant had just bought a caravan and nice car, and SP said, “well that’s my money that he is spending”. EP asked SP how TM was going to remember what happened to her, and SP said “[TM] will say what I tell her to say”.

92 GP gave evidence that the appellant did not ever come into the boys’ bedroom, or call to him at night time; and he never saw the appellant go into the girls’ bedroom at night. He said that SP visited the farm every weekend after she left home.

Directions to jury

93 In the course of summing up to the jury, the trial judge gave the following directions concerning tendency and coincidence evidence:

… You have evidence in the case in front of you that the Crown relies upon from each of the complainants that the accused committed each of those offences. The evidence that is before you, the Crown says, reveals a pattern of behaviour that reveals that the accused has a tendency to act in a particular way or to have a particular state of mind, namely, that he has a preoccupation. Perhaps you can use a stronger word, even an obsession with young prepubertal females and their sexual organs, particularly their vaginal areas.

Now you may look at the allegations and it is ultimately a matter for you of course to determine whether on the evidence that you accept the accused is found to have such a tendency. You may consider this evidence but if you are satisfied that the accused in this case did have such a state of mind you may use that fact in considering whether the accused committed the offences charged. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime or has been guilty of one piece of misconduct that he is therefore a person of bad character and for that reason must have committed all the offences. That is not the purpose of the evidence at all. The evidence of the accused having such a state of mind can only be used in the way the Crown asks you to if you are firstly satisfied of that evidence. This is of the existence of such a tendency or state of mind beyond a reasonable doubt.

There is another aspect of this and it is this. Again, the accused is charged with the offences there on the indictment. And you have before you evidence that the Crown relies upon in establishing that he committed those offences. However, you also have before you evidence concerning the manner in which those offences were committed and these offences were on the Crown case committed very much in the family context, either within the family home or in the immediate surroundings of the family home, sometimes near to other members of the family and involved, in a number of instances on the Crown case, the young child involved being told not to tell anyone that if they did there would be consequence that he might be sent to gaol or that they would be to blame and that these circumstances surrounding the offences have a remarkable similarity. That evidence is before you because sometimes there may be such a substantial similarity between different acts and the circumstances in which they occur, that a jury may be satisfied that the person who did one act must have done the others. That is to say, there is such a substantial similarity between the acts and the circumstances in which they occurred but because of the improbability of the events occurring coincidentally, it establishes that the accused committed the act that is the subject of the offence because coincidence is a very unlikely explanation for the substantial similarity.

94 He gave the following direction concerning the risk of concoction:

If on a broader level you thought or even if you entertained reasonable doubt that these three complainants, the mother, that’s [SP], [TM], the daughter, and [TP], the niece, somehow put their heads together and concocted these allegations, lose no time if you, as I say, even entertain a reasonable doubt that that is what occurred; lose no time in acquitting the accused. I do not believe I need to say anything further on the subject of concoction.

95 Counsel for the appellant sought a re-direction on this issue, on the basis that the direction given was confusing in the use of the term “reasonable doubt”. The trial judge gave the following further directions:

HIS HONOUR: Ladies and gentlemen just in your absence counsel raised a point where there might be room for some perhaps misunderstanding. I spoke to you about the possibility of there having been concoction. In other words, these complainants putting their heads together and inventing these allegations. I spoke to you about the possibility that these complainants are motivated to make false allegations by seeking financial gain. Putting it perhaps a different but equally conclusive way you need to be satisfied beyond a reasonable doubt that they are not concocting these allegations. You need to be satisfied beyond a reasonable doubt that they have not fabricated these matters for financial gain because if you do have a reasonable doubt that they were, as I told you before, you should lose no time into acquitting the accused.

Issues on appeal

96 The appellant relies on the following grounds of appeal:

1. There was a miscarriage of justice because His Honour did not order separate trials in respect of the counts as to the Complainants

2. There was a miscarriage of justice as a result of His Honour's directions in respect of Tendency/Co-incidence Evidence

97 I will deal with each of these grounds in turn.

Separate trials decision (ground 1)

98 Mr Thangaraj for the appellant submitted that the trial judge was in error in holding that evidence in respect of charges in relation to each complainant was admissible in respect of charges relating to other complainants as tendency and/or coincidence evidence, and on that basis rejecting the application for separate trials.

99 He submitted that the trial judge was in error to say that it did not appear that the significant probative value of the evidence in that respect was really challenged, and that the trial judge did not give reasons for holding that the evidence did have significant probative value.

100 On the question of the probative value of evidence relied on as tendency or coincidence evidence, Mr Thangaraj relied on O’Keefe v R [2009] NSWCCA 121, and on CGL v DPP [2010] VSCA 26. He submitted that the real assertion made by the tendency and coincidence notices was that the appellant had a sexual interest in young children, and as O’Keefe and CGL showed, this was insufficient for the probative value necessary for tendency or coincidence evidence. The limitation to family members did not significantly change the position, and in any event was artificial, because originally there were non-family complainants. Many of the further particulars were just matters of opportunity and how things allegedly happened to occur, and many applied only to some or only one of the complainants. The probative value of the evidence as tendency or coincidence evidence was small, and the prejudicial effect enormous.

101 Mr Thangaraj submitted that the trial judge also erred in dealing with the question of concoction and/or contamination.

102 He submitted that the trial judge made no reference to the recorded interview with TP, and in particular no reference to statements that TP had seen SP before making contact with police, that she was aware of allegations involving TM and that SP said “don’t worry we’ll get him for you”. He also pointed to TP saying in her record of interview that she became aware of TM’s allegation through CP, whereas in a conference with the DPP on 6 March 2009, she said she was told by MP.

103 Mr Thangaraj submitted that the family relationship heightened the risk of concoction. He pointed out that whereas SP denied telling anyone of what happened to her, there were rumours about this in the family. TP’s complaint to her father was well after the appellant had been charged in respect of SP and TM and others; and Mr Thangaraj also pointed to evidence given by TP at the trial that the appellant had done to her “what he did to [TM]”, showing there had been discussion of it. He also referred to MP’s evidence on the voir dire that TM said to her “that’s Mum’s story”.

104 Mr Thangaraj submitted that the trial judge did not consider the risk that TM and/or TP, knowing about alleged improper sexual conduct against SP and others, were influenced by that in the complaints they made; that is, he did not consider the possibility of concoction or contamination by one or other of them because of what they had heard about complaints by older members of the family.

105 In my opinion, these submissions should be rejected.

106 Evidence with which s 97 is relevantly concerned is evidence that a person has a tendency to act in a particular way or have a particular state of mind; and the probative value of the evidence will depend both on its probative value in establishing the tendency and on the probative value of the tendency (if established) in relation to an issue in the case: R v Li [2003] NSWCCA 407 at [11], R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 at [22] – [23].

107 To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance: Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 61 FCR 171 at 175-6, R v Ford [2009] NSWCCA 306 at [50] and [51], R v PWD [2010] NSWCCA 209 at [66]. The question of probative value (and also the possibility of prejudicial effect) must be assessed having regard to the issues in the case: PWD at [63].

108 It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.

109 The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to “some irrational, emotional or illogical response” or “giving the evidence more weight than it truly deserves”: R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]. An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [94]-[95]. If the evidence passes the s 101 test, it will a fortiori not be excluded under s 137: Ford at [59].

110 One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the “real chance” of concoction: OGD at [74], R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [48].

111 Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111] – [112].

112 In my opinion, subject to the question of concoction, to which I will return, features of the appellant’s conduct described by each complainant were sufficiently similar and sufficiently unusual for the evidence of each of them to have significant probative value in showing the specified tendencies; and the existence of those tendencies would have significant probative value in supporting other evidence that the appellant committed the offences charged. In my opinion, it is unusual for a parent or grandparent to do acts of the kind described by each witness, and the acts described by each, if accepted, would in my opinion to a very significant extent rationally affect the assessment of the probability of the appellant having an unusual sexual interest in his daughter and granddaughters and having a tendency to give effect to that interest in assaulting them; and the existence of those tendencies in turn would to a very significant extent rationally affect the assessment of the probability of the commission of the offences charged. In my opinion also, the probative value of the evidence is such that it substantially outweighs any prejudicial effect it may have. The danger of the jury responding inappropriately to it, or giving it more weight than it truly deserves, is in my opinion small, particularly if appropriate directions are given.

113 The case is very different from O’Keefe, in which tendency/coincidence evidence was sought to be relied on to identify the accused as the person who committed a sexual assault, where there was no other evidence that identified him. In those circumstances, it was clear that tendency evidence could not establish the identity of the accused, and coincidence evidence could not establish identity unless the coincidence or coincidences were particularly striking and powerful.

114 The case of CGL is also distinguishable. In that case, there was no common pattern of conduct, and what was said to be similarities were features which would characterise almost every allegation of sexual offending against a young girl. Even where there were similarities (the offending against two complainants occurring when the accused was living with the complainants’ mother), the nature of the offending was very different. In the present case, the nature of the alleged offending was similar, the complainants were a daughter and granddaughters of the accused and of similar ages when the offending commenced, and there were other features such that the evidence as a whole did suggest a pattern of conduct.

115 Turning to the question of concoction, in my opinion no error is shown in the trial judge’s finding that there was no real possibility of concoction.

116 No motive for concoction was suggested at the voir dire hearing. Although such a motive was suggested at the trial, through the evidence of JP, no application was then made to withdraw evidence from the jury or to abort the trial.

117 Although there was a family relationship between the complainants, and some opportunity for concoction, particularly as between SP and TM, the whole of the circumstances disclosed at the voir dire hearing weighed strongly against any possibility of concoction. The recorded telephone conversation between the appellant and SP weighed very strongly against concoction by SP.

118 Although there was some variation between the accounts of SP and MF as to the circumstances in which TM first made her complaint to them, there was nothing in the evidence to suggest that TM’s complaint was instigated by anything done by SP or MF, and nothing to suggest that TM was ever made aware of particular allegations by SP or that TM’s complaint underwent any change between her initial complaint and the record of interview of 20 August 2007. The evidence of MP that TM said “that’s Mum’s story” was justifiably rejected by the trial judge, and no challenge on appeal is made to that rejection.

119 There is no suggestion that TP had been told of any allegation against the appellant when she complained to her friend ST in 2002 or 2003. Although TP saw SP before making her statement to the police, there is nothing to suggest that either SP or CP told TP the precise nature of allegations by SP or TM before TP gave her record of interview.

120 In my opinion, the whole material justified the trial judge’s conclusion that there was no real chance of concoction, and that consideration of the question of concoction does not alter the conclusion that the evidence had significant probative value, and that this probative value substantially outweighed any prejudicial effect the evidence may have.

121 Mr Thangaraj also referred to the risk of contamination.

122 I note that in R v Ananthanarayanan (1993) 98 Cr App Rep 1, the English Court of Appeal held that, where there was a real risk, whether by reason of collusive concoction or innocent contamination, that the evidence of a witness was not independent of that given by another witness, it was not admissible to corroborate the evidence of that other witness; and in R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631 at [155], Callaway JA (with whom Winneke JA and Ormiston JA agreed, at [73]) said this:

[155] "Collusion" does not have a special meaning which includes unconscious influence or innocent infection. The point is rather that, just as collusion deprives disputed similar fact evidence of its probative value, the same may be true of unconscious influence or innocent infection from media publicity. The unconscious influence or innocent infection may supply the explanation for the similarity between the respective complainants' accounts without there being any dishonest fabrication. Where that is an issue at a trial, the judge should direct the jury that they have to be satisfied beyond reasonable doubt that such unconscious influence or innocent infection is not the explanation for the similarities on which the Crown relies. Her Honour refused to give such a direction. The question is whether unconscious influence or innocent infection was an issue at the second trial.

123 In my view, it is not a risk of any contamination whatsoever that would necessarily require the exclusion of evidence: it must be a risk of contamination that goes to the substance of the evidence, and not merely to incidental details of no materiality. I accept that, unless the Crown negates a real chance of contamination going to the substance of the evidence, then the evidence of other witnesses should not be admitted as tendency evidence. However, the risk of unconscious influence as to incidental details would not in my view necessarily require the evidence to be excluded.

124 Whether or not this view is correct, in my opinion, having regard to the circumstances I have referred to, no error is shown in the trial judge’s finding that there was no real possibility of contamination in this case.

125 Since the evidence of the different complainants was admissible as tendency evidence in each of the cases, in my opinion there was no error in the trial judge’s decision to permit the trials of complaints by SP, TP and TM proceeding together.

126 So far, I have not considered the admissibility of the evidence as coincidence evidence. The question whether the evidence was admissible as coincidence evidence does not affect the question whether the trial judge erred in not ordering separate trials. However, my view is that the evidence was admissible as coincidence evidence, albeit not independently of its admissibility as tendency evidence. That is, there were indeed similarities in events and circumstances making it improbable that they occurred coincidently, but this was because those similarities were evidence of the tendencies relied on by the Crown. And in my opinion the evidence had significant probative value as coincidence evidence, which substantially outweighed any prejudicial effect it may have had, just because of its value as evidence of the relevant tendencies.

Tendency/coincidence directions (ground 2)

127 It was submitted for the appellant that the trial judge misdirected the jury in the following respects:

(1) In categorising the appellant’s alleged tendency as “an obsession with young prepubertal females and their sexual organs”, thereby suggesting that the appellant was the kind of person who would commit the charged offences;

(2) In telling the jury that they may be satisfied that the person who did one act must have done the others, and that the improbability of events occurring coincidentally establishes that the accused committed the offence;

(3) In confusing tendency and coincidence reasoning: R v Phan (1990) 54 SASR 561 at 567, R v DCC [2004] VSCA 230; (2004) 11 VR 129; and

128 I do not accept the first point. The trial judge was indicating to the jury the way the Crown put its case, and he went on to tell them it was a matter for them to determine whether they accepted that the appellant had such a tendency, and that if they were so satisfied, they could use that in considering whether he committed the offences. He told the jury it would be wrong to reason that because the appellant had committed one crime or been guilty of one piece of misconduct, he was therefore a person of bad character and for that reason must have committed all the offences. The trial judge also told them they must first be satisfied of the tendency or state of mind beyond reasonable doubt.

129 I do not accept the second point. The whole passage showed the judge was saying there may be such a substantial similarity between different acts and circumstances that a jury may be satisfied that the person who did one act must have done the others.

130 I do not accept the fourth point. As mentioned earlier, the trial judge told the jury they must be satisfied of the tendency beyond reasonable doubt; and he later said they could use a pattern of behaviour as the Crown asked if they were firstly satisfied the appellant did the other acts beyond reasonable doubt.

131 As regards the third point, the appellant relied on the following analysis by Callaway JA in R v DCC at [7] – [9] (omitting footnote):

[7] It was necessary for the jury to understand the purpose for which the evidence on counts relating to one complainant was relevant to counts relating to the others. In particular, it was necessary for them to understand that they could reason from the improbability of coincidence, if they were satisfied beyond reasonable doubt that there was no collusion, but they were not to reason that, because the applicant was guilty in relation to one complainant, he was the kind of person who was likely to have abused the other complainants too.

[8] The difference between probability reasoning and propensity reasoning is not a matter of words or artificiality. It is a different train of thought. It is one thing to say that the account of a witness is more likely to be true because of the similarities it bears to the independent account of other witnesses and the improbability that, by sheer coincidence, their accounts would be so similar. (Such reasoning could just as well be used in relation to armed robberies as sexual offences.) It is a different thing altogether to reason that, because the evidence of one witness is accepted in relation to offences committed against her, the accused is the kind of person who is likely to have committed similar offences against other complainants, ie, in the present context, to conclude that he is a paedophile. As I have said, the former chain of reasoning is permitted but the latter is not.

132 In considering this passage, it is to be kept in mind that there was no provision similar to s 97 of the Evidence Act operating in Victoria until 2008, and that while coincidence reasoning was available to the extent permitted by common law, propensity or tendency reasoning was not. Also, the coincidence relied on in DCC was the coincidence of complaints of similar sexual assaults by each of three stepdaughters; whereas in the present case, the coincidence relied on was not that of allegedly similar complaints by different persons, but of allegedly similar acts of the appellant.

133 Accordingly, in my opinion, there was not in this case the sharp distinction between tendency and coincidence reasoning identified in DCC. Tendency reasoning was permissible in this case, and although in my opinion the similarities between the acts alleged against the appellant were not so striking that satisfaction as to the occurrence of some could directly make it significantly more likely that the appellant committed others, they were such that the commission of some could evidence a tendency and thereby increase the probability that the appellant committed others.

134 In any event, no direction was sought, and rule 4 accordingly applies, so that leave would be required to rely on this alleged misdirection. Mr Thangaraj submitted that the error was too important for rule 4, and that there was no forensic advantage in not taking the objection. However, in my opinion, even if the trial judge did err in failing to clearly distinguish tendency and coincidence reasoning, there was no miscarriage of justice such as would justify leave.

Concoction direction (ground 3)

135 It was submitted for the appellant that the direction on concoction was inadequate because it focussed on only one possibility, that of the complainants putting their heads together and inventing the allegations; whereas the trial judge should also have dealt with the possibility of concoction by a potential witness in isolation, after becoming aware of complaints by others (OGD at [70]), and the possibility of contamination through a witness becoming aware of what another complainant had said and being influenced by it without deliberate concoction (Ananthanarayanan at 4, Glennon at [155]).

136 The question of concoction by one or more of the witnesses in isolation, or of unconscious influence or innocent infection, was not made an issue at the trial. In those circumstances, in my opinion it was not a misdirection for the trial judge not to refer to these possibilities.

137 Again, no direction was sought, and rule 4 applies, so that leave would be required to rely on this ground. Again, in my opinion, even if there was error by the trial judge, there was no miscarriage of justice such as would justify the grant of leave.

138 Accordingly, in my opinion the appeal against conviction should be dismissed.

Crown appeal against sentence

139 As regards the Crown appeal, I agree with the orders proposed by Fullerton J and with her Honour’s reasons.

Conclusion

140 In my opinion, the Court should make the following order on the appeal against conviction: Appeal against conviction dismissed.

141 On the Crown appeal, the Court should make the orders proposed by Fullerton J.

142 PRICE J: On the appeal against conviction, I agree with Hodgson JA. On the Crown appeal against sentence, I agree with Fullerton J.

143 FULLERTON J: On the appeal against conviction I agree with Hodgson JA.

144 On the Crown appeal against sentence it was submitted that his Honour’s approach to the calculation of the individual sentences on each of counts 2, 8, 10 and 11 disclosed error and that the failure to properly accumulate the sentences on the individual counts was also productive of error such as to result in a manifestly inadequate aggregate sentence warranting this Court’s intervention.

145 The sentences imposed on each of the four individual counts were as follows:

Count	Offence	Maximum	Sentence
2	Indecent assault (child under 16): s 76 since repealed. Offence date: Sep 1972 – Sep 1973	5 years	Imprisonment for 2 years to commence 13.5.10 and expire 12.5.12; with NPP of 8 months to commence on 13.5.10 and expire 12.1.11
8	Aggravated indecent assault: s 61M(2) Crimes Act	10 years	Imprisonment for 12 months to commence 13.2.10 and expire 12.2.11; with NPP of 6 months to commence on 13.2 10 and to expire on 12 .8.2010
10	Aggravated indecent assault: s 61M(2) Crimes Act	10 years	Imprisonment for 12 months to commence 13.11.09 and expire 12.11 10; NPP of 6 months to expire 12.5.10
11	Aggravated indecent assault: s 61M(2) Crimes Act	10 years	Imprisonment for 8 months to commence 13.9.09 and expire 12.5.10; NPP of 4 months to expire 12.1.10

146 An aggregate term of imprisonment of 2 years and 8 months was imposed comprised of non-parole period of 16 months and a balance of term of the same length. The statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 was disturbed by a finding of special circumstances on the basis of the respondent’s age as a first time offender, his health, and because it was assumed that he would serve his sentence in protective custody. The second ground of appeal challenges the finding of special circumstances.

147 The respondent did not give evidence on sentence. He was aged 64 at the time of sentence having been married for over 40 years with five adult children. His Honour noted that the respondent did not have any previous convictions.

148 The Crown relies on the following grounds of appeal:

1. His Honour erred in failing to impose sentences in accordance with the principles stated in Pearce v R [1998] HCA 57; 194 CLR 610;

2. His Honour erred in taking into account circumstances of hardship in respect of the respondent’s custody in the absence of evidence supporting the finding and in the resulting variation of the statutory ratio of the aggregate sentence;

3. His Honour erred in imposing an aggregate sentence that failed to properly reflect the objective seriousness of the offences; and

149 The approach to sentence mandated by Pearce obliges a sentencing judge to impose sentences adequately reflecting the objective seriousness of each of a succession of individual counts and then to consider whether the principle of totality requires that there be some amelioration of the aggregate sentence by an order of partial accumulation. In this case, the Crown submitted the structure of the sentences were suggestive of a sentencing approach in operation before Pearce where the longest sentence was frequently reserved for one of a series of individual counts with concurrent (and often lenient) sentences being imposed on the balance of the counts as a means of giving effect to the totality principle.

150 Ground 1 also involves, by implication, a challenge to the adequacy of the individual sentences, it being submitted by the Crown that they failed to reflect the objective seriousness of each of the four separate offences. It is then submitted that the order for partial accumulation was such that the sentences in aggregate failed to properly reflect the overall objective seriousness of the offending, notwithstanding application of the principle of totality. It is this challenge to which Grounds 3 and 4 are directed. It is convenient to deal with Grounds 1, 3 and 4 together. It is unnecessary to give separate consideration to Ground 2, where the respondent is to be re-sentenced and there is now some evidence concerning hardship.

The sentence of the individual counts
The second count

151 The second count on the indictment involved the digital penetration of the vagina of SP who was at that time aged between seven and eight years. The offence was committed between September 1972 and September 1973 on an occasion when the respondent entered the bedroom of his daughter, knelt beside her, placed his hands under the bed sheets and her underwear and inserted his finger into her vagina for a period of approximately five minutes. His Honour noted that there was no evidence of any threats or instruction to SP (on this occasion) to refrain from making a complaint. His Honour did note, however, that although the jury had acquitted the offender of two other counts of indecent assault involving the same complainant, in determining an appropriate sentence for the one offence involving SP that was found proved, he took into account the fact that the offence was not an isolated act but one within a wider pattern of offending conduct. On the appeal it was not submitted that there was error in that approach.

152 As noted, the second count was laid pursuant to s 76 of the Crimes Act (since repealed) at which time digital penetration was not defined as sexual intercourse under the Crimes Act. The offence carried a maximum penalty of 5 years where the complainant was under 16 years (as was the case here) and 3 years where the complainant was older than 16 years.

153 Consistent with sentencing principle in the calculation of sentence on this count, his Honour was required to have regard to the sentencing practice that was current at the time of the commission of the offence to the extent that it was able to be ascertained (see R v MJR [2002] NSWCCA 129; 54 NSWLR 368). It does not appear that his Honour was invited to find that there had been an increase in penalty for the particular conduct for which the applicant was to be sentenced or referred to information of any kind such as might have revealed a range of sentences imposed on offenders for indecent assault of the kind for which the respondent was to be sentenced.

154 When considering how to approach sentence for the offending constituted by the second count consistent with the principle to which I have referred, his Honour cited R v Moon [2000] NSWCCA 534; 117 A Crim R 497 and attributed to Howie J the observation that it was common practice in the early 1970s to afford offenders a concession when setting a non-parole period (or a non-parole period portion of the sentence) in the vicinity of one third of the aggregate sentence. It would appear that it was for this reason that his Honour fixed a non-parole period of 8 months, being one third of the term of imprisonment of 2 years imposed on the second count. On a close reading of Moon, what his Honour referred to as “a common practice” is to be found in the dissenting judgment of Whealy J at [27]-[28] where his Honour expressed the view that disregard of the system of remissions prevailing at the time of the commission of the offence then under consideration was not a matter the applicant was entitled to rely upon as constituting error in the approach of the sentencing judge. Whealy J relied upon what this Court held in R v Maclay (1990) 19 NSWLR 112 to be reflective of the legislative intention behind the Crimes (Sentencing Procedure) Act 1999 and the accompanying transitional provisions. In Moon Howie J did not refer to the approach of sentencing courts to the fixing of a non-parole period in the 1970s at all. He held (Fitzgerald JA agreeing) that in the absence of evidence of the sentencing practices prevailing in 1972 to 1973 for offences under s 76, an offender is entitled to be sentenced in accordance with the policy of the legislature current at the time of offending, consistent with the approach adopted by sentencing courts at that time and, in the absence of any established pattern of sentences, a sentencing judge should be guided by the maximum penalty as an expression of the Legislature’s view of the gravity of the general category of offending and by the nature of the particular conduct being prosecuted as a breach of the particular section.

155 In AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Howie J revisited the question of the impact of remissions considered by Whealy J in Moon at [26]-[33]. After noting that a five judge bench was convened in MJR to determine differing views as to the approach to be taken in a case where an offender is being sentenced some years after the offences were committed, and noting that the Court did not expressly deal with the question whether the existence of remissions at the time of the commission of the offence, Howie J reviewed the approach of Whealy J in Moon and expressed his agreement with his Honour’s views that the system of remissions operating under the Parole of Prisoners Act 1966 was irrelevant. This approach has been confirmed as correct in Bradbery v R [2008] NSWCCA 93.

156 That said, as Buddin J observed in GRD v R [2009] NSWCCA 149 at [20], it has been consistently recognised that, unlike the Crimes (Sentencing Procedure) Act, the Parole of Prisoners Act imposed no restriction upon the setting a non-parole period and that non-parole periods imposed under that Act were usually in the order of between one third to one half of the head sentence.

157 The Crown did not submit that there was error in his Honour fixing the non-parole period at one third of the head sentence on count 2 but submitted that there was error in his failure to make any assessment at all of the objective seriousness of the indecent assault perpetrated against SP other than by making a general observation that each of the child complainants was very young when they were indecently assaulted and that the respondent was in a position of trust and authority relative to them. Having regard to the relatively prolonged act of digital penetration of SP, then a child of between 7 and 8 years of age, the Crown submitted that the offence should have been classified within the upper range of objective seriousness contemplated by the section and that the sentence imposed, inclusive of the non-parole period, failed altogether to reflect that fact.

158 I am satisfied that, consistent with the principled approach in the cases to which I have referred, his Honour was obliged to assess the particular conduct involved in the commission of the indecent assault against SP against the maximum penalty of 5 years prescribed by s 76 at the time the offence was committed, and to recognise that a much broader range of sexual conduct was susceptible to charge under this section as distinct from the scheme which currently prevails where, under Div 10 of the Crimes Act a charge of indecent assault of a child under 16 years is distinguished from a charge of aggravated sexual assault where a child under 16 years suffers a penetrative sexual assault, with the latter charge attracting a maximum penalty of 20 years imprisonment (see Nelson v R [2007] NSWCCA 221 per Latham J at [17]). In my view, his Honour failed to make that assessment or to make any assessment of the objective seriousness of the respondent’s conduct at all.

159 In the result, I am of the view a sentence of imprisonment of 2 years with a non-parole period of 8 months was an inadequate sentence for what must be categorised as a serious breach of s 76 having regard to the age of the respondent’s daughter at the time of the commission of the offence, the breach of trust involved and that the offence involved penetration of the child’s vagina which was not transitory and for which no leniency could be afforded the respondent given that it was not an isolated occurrence. I am not persuaded that the schedule of cases to which the respondent’s counsel referred in his written submissions, where bonds were imposed at first instance in the District Court between 1990 and 1991 for the breaches of s 76 provide any guidance as to the appropriate sentence to be imposed in this case.

Counts 8, 10 and 11

160 The three counts on the indictment laid pursuant to s 61M(2) of the Crimes Act involving the respondent’s granddaughter, TP, were committed over a period of 21 months, just short of 30 years after the indecent assault on his daughter. TP was aged between 8 and 9 years when she was indecently assaulted. Count 8 involved surreptitiously touching the child’s vagina for what was said to have been two or three minutes whilst in the company of other adults and where, at the time of the assault the respondent told the child not to say anything (see [43]). Count 10 involved touching the child’s vagina under her underwear (but without penetration), but waking her from sleep in the process. This assault was also accompanied by a warning not to tell anyone (see [44]). Count 11 involved lifting the child’s shirt and sucking her breast (see [45]).

161 The Crown submitted that counts 8 and 10 should have been classified in the mid to high range of objective seriousness of a breach of s 61M(2) by reason of the age of the child, the fact that the conduct constituted by the three individual counts formed part of a course of conduct and because of the breach of trust involved in the commission of the offences, and not within the “lower half or in the lower end” of objective seriousness as found by his Honour. (I do not understand the Crown to challenge the sentence imposed on count 11 as distinct from the aggregate non-parole period for the offence involving the complainant TP, inclusive of count 11, being productive of an inadequate aggregate non-parole period.)

162 Sentences of imprisonment of 12 months with a non-parole period of 6 months were imposed on each of counts 8 and 10, which were partially accumulated on each other by three months. After taking into account the sentence imposed on count 11, an aggregate non-parole period of 11 months was imposed for the course of offending involving TP, being conduct which, as I have noted, extended over a period of 21 months.

163 The Crown and the respondent’s counsel referred his Honour to a large number of cases for comparative purposes, none of which were referred to in the reasons for sentence. He did note that many of the cases were of much greater seriousness than the offences with which he was concerned but did not cite them or distinguish them in any meaningful way from the respondent’s conduct, and did not appear to give any weight to the fact that the offences were committed in circumstances of aggravation, namely the breach of trust involved in the commission of the offences, the vulnerability of the child by reason of her age and her relationship to the respondent and the persistence of his criminal conduct. In my view, the character of the assault and the degree of physical contact, matters properly to be taken into account when assessing objective seriousness, were not given appropriate focus (see R v PGM [2008] NSWCCA 172 at [30]).

164 I have resolved to the view that the respondent’s subjective circumstances (such as they were) did not operate in mitigation of penalty to any significant degree and, where there was no other factor operating to discount the sentence, the individual sentences on counts 8 and 10 were an inadequate reflection of the seriousness of the breach of s 61M(2).

165 Despite being satisfied that error infected the sentence imposed on counts 2, 8 and 10, since this is a Crown appeal re-sentencing is not the inevitable outcome of appellate review. While not determinative of the question whether this Court should intervene, it is appropriate to consider whether the error in the approach to the sentence on the individual counts has been compounded by the fact that the non-parole period imposed for count 2 was accumulated by only three months on the partially accumulated sentences imposed on counts 8, 10 and 11 such as to produce an aggregate non-parole period of 16 months for two quite discrete periods of criminal conduct against young children. I am unable to view the extent of accumulation as other than productive of further error which has resulted in an inadequate effective sentence.

Should the respondent be re-sentenced?

166 The respondent submitted that even were this Court satisfied that there was error of the kind contended for by the Crown, the deterioration in his health since being imprisoned in November 2009, and his uncertain prognosis as at the date of the hearing of the appeal in September 2010, should attract the exercise of the residual discretion under s 5D of the Criminal Appeal Act 1912 and the Crown appeal should be dismissed. It was further submitted that even were the respondent to be re-sentenced, the sentence imposed by this Court should be ameliorated in light of his age and the evidence of his current state of health which, in addition to the principled approach to re-sentencing after a successful Crown appeal, will result in a sentence towards the lower end of the available range of sentences (see R v Witchard [2007] NSWCCA 167).

167 The evidence relied upon on re-sentence consisted of a number of affidavits from the respondent’s solicitor which attested to communications with Justice Health in relation to the respondent’s treatment as an older aged prisoner who entered custody with a history of bladder cancer. The correspondence with Justice Health in June/July 2010 (seven months after he was sentenced and three months before the hearing of the appeal) satisfies me that the respondent was at that time being adequately monitored by those in charge of his healthcare management in the custodial environment, and that he was in receipt of appropriate treatment for a range of medical conditions from which he apparently suffers. The same correspondence also recognised that what were described as his “urological problems” were also in need of “follow-up” and that arrangements were in place for an urgent urological review of his condition with that objective in mind. In an affidavit under the hand of the respondent’s solicitor and dated 9 September 2010 the state of affairs as they persisted in June/July was unchanged.

168 While it is true that the foreshadowed review of his urological condition in July 2010 was not able to be confirmed as having taken place at the time of the hearing of the appeal, for the purposes of re-sentence the Court is unable to proceed on any other basis than that which is revealed by the tendered correspondence. Irrespective of the delay in the provision of resources to allow for a review of the respondent’s condition by an appropriately qualified urologist or oncologist, I am unable to discern anything in the attitude of Justice Health or the treatment he is receiving which would operate to excite the discretion to dismiss the Crown appeal although, given his age and general poor health, I accept that some moderation of penalty on re-sentence is warranted.

169 The respondent does not otherwise submit that there is an additional basis for exercise of the residual discretion in his favour having regard to the operation of s 68A of the Crimes (Appeal and Review) Act 2001. I do, however, propose to make an adjustment to the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act by reason of the evidence tendered on re-sentence and by reason of the need for a greater degree of accumulation between count 2 on the one hand and counts 8, 10 and 11 on the other.

170 Accordingly, the orders I propose are as follows:

1. The Crown appeal against sentence be allowed in part.

2. The sentence imposed on count 11 is confirmed.

On count 10 a term of imprisonment of 2 years to commence on 13 November 2009 and to expire on 12 November 2011, with a non-parole period of 12 months to date from 13 November 2009 and to expire on 12 November 2010.

On count 8 a term of imprisonment of 2 years to commence on 13 March 2010 and to expire on 12 March 2012, with a non-parole period of 12 months to date from 13 March 2010 and to expire on 12 March 2011.

On count 2 a term of imprisonment of 3 years to commence on 13 September 2010 and to expire on 12 September 2013, with a non-parole period of 15 months to date from 13 September 2010 and to expire on 12 December 2011.

171 The effective sentence is imprisonment for 4 years with a non-parole period of 2 years and 3 months. The earliest day on which the respondent will become entitled to be released on parole is 12 December 2011.

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Citations

BP v R; R v BP [2010] NSWCCA 303

Most Recent Citation

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Statutory Material Cited

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O'Keefe v R [2009] NSWCCA 121

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CITATION:	BP v R; R v BP [2010] NSWCCA 303
HEARING DATE(S):	10 September 2010
JUDGMENT DATE:	13 December 2010
JUDGMENT OF:	Hodgson JA at 1; Price J at 142; Fullerton J at 143
DECISION:	On the appeal against conviction: Appeal against conviction dismissed. On the Crown appeal against sentence: 1. The Crown appeal against sentence be allowed in part. 2. The sentence imposed on count 11 is confirmed. 3. The sentences imposed on counts 2, 8 and 10 are quashed and in lieu thereof the following sentences are imposed: On count 10 a term of imprisonment of 2 years to commence on 13 November 2009 and to expire on 12 November 2011, with a non-parole period of 12 months to date from 13 November 2009 and to expire on 12 November 2010. On count 8 a term of imprisonment of 2 years to commence on 13 March 2010 and to expire on 12 March 2012, with a non-parole period of 12 months to date from 13 March 2010 and to expire on 12 March 2011. On count 2 a term of imprisonment of 3 years to commence on 13 September 2010 and to expire on 12 September 2013, with a non-parole period of 15 months to date from 13 September 2010 and to expire on 12 December 2011.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Sexual offences alleged by different complainants against same accused – Tendency evidence – Coincidence evidence – Whether separate trials should have been ordered – Whether significant probative value – Whether probative value substantially outweighed prejudicial effect – Risk of concoction or contamination of evidence – Whether errors in directions to jury. - CRIMINAL LAW – Crown appeal against sentence – Several sexual offences against minors – Whether sentencing judge erred in imposing individual sentences and/or in failure to partially accumulate – Whether aggregate sentence manifestly inadequate.
LEGISLATION CITED:	Crimes Act 1900, s 61M, s 76 (since repealed) Crimes (Appeal and Review) Act 2001, s 68A Crimes (Sentencing Procedure) Act 1999, s 44 Criminal Appeal Act 1912, s 5D Criminal Procedure Act 1986, s 29 Evidence Act 1995, ss 97, 98, 101 Parole of Prisoners Act 1966
CATEGORY:	Principal judgment
CASES CITED:	AJB v R [2007] NSWCCA 51; 169 A Crim R 32 R v Ananthanarayanan (1993) 98 Cr App Rep 1 R v Basha (1989) 39 A Crim R 337 Bradbery v R [2008] NSWCCA 93 CGL v DPP [2010] VSCA 26 R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 R v Colby [1999] NSWCCA 261 R v DCC [2004] VSCA 230; (2004) 11 VR 129 R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 R v Ford [2009] NSWCCA 306 R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631 GRD v R [2009] NSWCCA 149 Hoch v The Queen (1988) 165 CLR 292 R v Li [2003] NSWCCA 407 R v Maclay (1990) 19 NSWLR 112 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 Nelson v R [2007] NSWCCA 221 R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 O’Keefe v R [2009] NSWCCA 121 Pearce v R [1998] HCA 57; 194 CLR 610 R v PGM [2008] NSWCCA 172 R v Phan (1990) 54 SASR 561 R v PWD [2010] NSWCCA 209 R v RN [2005] NSWCCA 413 R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 R v Witchard [2007] NSWCCA 167 Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 61 FCR 171
PARTIES:	BP (appellant/respondent) CROWN (respondent/appellant)
FILE NUMBER(S):	CCA 2008/11515
COUNSEL:	M THANGARAJ (for BP) S DOWLING (Crown)
SOLICITORS:	Greg Walsh & Co (for BP) S Kavanagh (solicitor for Public Prosecutions) (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/3406
LOWER COURT JUDICIAL OFFICER:	Boulton ADCJ
LOWER COURT DATE OF DECISION:	17 December 2009