Ferguson v R

[2024] NSWCCA 81

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ferguson v R [2024] NSWCCA 81

Hearing dates:

27 March 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Before:

Davies J at [1]
Button J at [110]
Sweeney J at [118]

Decision:

(1) Extend time for the filing of both the conviction appeal and the sentence appeal to 28 November 2023.

Conviction appeal:

(2) Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 1.

(3) Grant leave to appeal in respect of grounds 2 and 3.

(4) Dismiss the appeal.

Sentence appeal:

(5) Grant leave to appeal.

(6) Uphold the appeal.

(7) Quash the sentence imposed in the District Court on 5 August 2022.

(8) In lieu thereof, sentence the appellant as follows:

(a) For the offence in count 4, a sentence of 18 months imprisonment with a non-parole period of 12 months, to date from 5 August 2022, such that the non-parole period expired on 4 August 2023 and the sentence expired on 4 February 2024.

(b) For the offence in count 7, impose a Community Correction Order of 6 months duration, to commence on 31 May 2024 with the standard conditions, pursuant to s 88 of the Crimes (Sentencing Procedure) Act not to commit any offence, and to appear before the court if required to do so at any time during the term of the order.

Legislation Cited:

Crimes Act 1900 (NSW) ss 61J, 61KD, 61KF

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 8, 22A, 66, 71, 88

Criminal Appeal Act 1912 (NSW) s 6

Criminal Procedure Act 1986 (NSW) s 293A

Evidence Act (1995) NSW s 32

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288

Crofts v R [2018] VSCA 197

Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

FB v R [2020] NSWCCA 137

Gallant v Regina [2006] NSWCCA 339

Kumar v R [2023] NSWCCA 156

Latu v R [2023] NSWCCA 19

Lee v R [2023] NSWCCA 203

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35

Marco v R [2023] NSWCCA 307

Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Sarhene v R [2022] NSWCCA 79

Simic v The Queen (1980) 133 CLR 319; [1980] HCA 25

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Xu v R [2019] NSWCCA 178

Zheng v R [2023] NSWCCA 64

Zreika v R [2012] NSWCCA 44

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Benjamin Ferguson (Applicant)
The King (Respondent)

Representation:

Counsel:
S Schaudin (Applicant)
S Lind (Respondent)

Solicitors:
Criminal Defence Lawyers Australia (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2020/308350

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

05 August 2022

Before:

T L Smith SC DCJ

File Number(s):

2020/308350

HEADNOTE

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

The applicant, Benjamin Ferguson, was convicted by a jury of one count of aggravated sexual act towards a complainant and one count of aggravated sexual touching contrary to ss 61KF and 61KD of the Crimes Act 1900 (NSW). The applicant was sentenced to imprisonment for 2 years 4 months with a non-parole period of 1 year 3 months expiring 4 November 2023.

The offending took place as part of a single episode on the night or early morning of 21 and 22 October 2020. The applicant was charged with eight counts of aggravated sexual act, sexual touching and sexual intercourse against his stepson’s best friend. The complainant was aged 18 years and was diagnosed with autism spectrum disorder and a mild intellectual disability. He (the complainant) told the applicant’s partner that he had been “manscaped” the following morning and made a formal police statement that evening after telling his father and mother separately that the applicant had committed sexual acts upon him.

The jury returned two guilty verdicts, two not guilty verdicts and, in respect of four counts, were unable to agree. The applicant was found guilty of count 4 (shaving the complainant’s pubic hair) and count 7 (masturbating himself). He was found not guilty of count 8 (masturbating the complainant). Counts 7 and 8 occurred reasonably contemporaneously. In relation to count 4, the applicant admitted to having carried out the physical act, but said he did so at the complainant’s request. The applicant denied all other offending.

At trial, the complainant gave no evidence about count 8 until his memory had been refreshed following an application under s 32 of the Evidence Act 1995 (NSW). During cross-examination, the complainant also said that he did not say “Stop” louder when the applicant was masturbating him because he was scared the applicant would hit him with a machete. This was the first time there had been any mention of a machete. The applicant’s partner gave evidence that the applicant was “honest without a fault”. The trial judge referred to this evidence when directing the jury about good character.

During sentence proceedings, counsel for the applicant conceded that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been crossed. Her Honour accepted this concession and was satisfied that no sentence other than imprisonment was appropriate for each offence. Her Honour also held that the evidence regarding the applicant’s risk of reoffending was inconclusive. Accordingly, her Honour was not satisfied that the aggregate term of imprisonment could be served by way of an intensive correction order.

The applicant sought leave to appeal against his conviction on three grounds:

Ground 1:   The learned trial judge erred in not giving a full good character direction;

Ground 2:   The verdicts of guilty in relation to counts 4 and 7 were unreasonable and cannot be supported having regard to the evidence; and

Ground 3:   The verdicts of guilty in relation to counts 4 and 7 are inconsistent with the not guilty verdict on count 8 and the jury being hung on counts 2, 3, 5 and 6.

Additionally, the applicant sought leave to appeal against the sentence imposed on the following grounds:

Ground 4: The learned sentencing judge erred in determining the section 5 threshold had been crossed in relation to ground 7;

Ground 5:   The learned sentencing judge erred in not ordering the sentence of imprisonment to be served by way of intensive correction order; and

Ground 6:   The sentence is manifestly excessive.

The Court (per Davies J, Button J and Sweeney J agreeing with regard to the conviction appeal; per Sweeney J, Davies J agreeing and Button J dissenting with regard to the sentence appeal) held, dismissing the conviction appeal, upholding the sentence appeal and re-sentencing the applicant:

As to Ground 1:

1. Given there is no obligation to give any particular direction with respect to character evidence, there is very little opportunity to allege a miscarriage of justice where, as occurred here, some direction was given: [50] (Davies J); [110] (Button J); [118] (Sweeney J).

   Simic v The Queen (1980) 133 CLR 319; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32; FB v R [2020] NSWCCA 137, cited.

2. Where the trial judge’s proposed direction had been discussed and agreed beforehand, there was a legitimate forensic explanation for the full direction not being given, and no issues were raised by counsel at the conclusion of the summing up, it cannot be said that a miscarriage of justice occurred: [51]–[56] (Davies J); [110] (Button J); [119] (Sweeney J).

   Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288; Latu v R [2023] NSWCCA 19; Marco v R [2023] NSWCCA 307; Kumar v R [2023] NSWCCA 156, cited.

   Xu v R [2019] NSWCCA 178, distinguished.

As to Ground 2:

1. On a consideration of the whole of the evidence, particularly the early complaint and the fundamental consistency of the complainant’s subsequent accounts, the 18 evidentiary circumstances put forward by the applicant in support of unreasonableness do not give rise to any doubt about the applicant’s guilt. Simply because there is contradictory evidence does not mean that a verdict is unreasonable: [90]–[107] (Davies J); [110] (Button J); [120]–[122] (Sweeney J).

   Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Lee v R [2023] NSWCCA 203 cited.

As to Ground 3:

1. It is only in very limited circumstances that the principles dealing with inconsistent verdicts can apply where the inconsistency is between a failure to reach a verdict and a verdict of guilty. The present case does not fall within that class: [65]–[67] (Davies J); [110] (Button J); [118] (Sweeney J).

   Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191, followed.

   Crofts v R [2018] VSCA 197, distinguished.

2. Where the complainant did not give evidence about count 8 until his memory had been refreshed, and he introduced entirely unsatisfactory evidence about the existence of a machete, a rational explanation for the acquittal on count 8 exists. The jury could well have had a reasonable doubt concerning the evidence about count 8: [71]–[80] (Davies J); [110] (Button J); [118], [120] (Sweeney J).

   Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, cited.

As to Ground 4:

Per Sweeney J, Davies J agreeing:

1. Taking into account all of the circumstances of count 7 and the applicant’s subjective circumstances, including the fact his functional neurological disorder would make custody more onerous, it was not open to the trial judge to be satisfied that no sentence other than imprisonment was appropriate: [109] (Davies J); [152]–[153] (Sweeney J).

   Sarhene v R [2022] NSWCCA 79, cited.

Per Button J (dissenting):

1. Where experienced trial counsel conceded the threshold had been crossed, and that concession was open to be made, the trial judge was well entitled to accept and act upon that concession: [113]–[115] (Button J).

As to Ground 5:

1. Reading the remarks on sentence as a whole, the trial judge considered all factors relevant to the imposition of an ICO thoroughly. Her Honour clearly had regard to the applicant’s risk of reoffending and the paramount consideration of community safety. There was no error in how her Honour approached the sentencing task: [109] (Davies J); [112] (Button J); [161]–[162] (Sweeney J).

   Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; Zheng v R [2023] NSWCCA 64.

As to re-sentence:

1. Error having been established in respect of ground 4, the applicant was re-sentenced to 18 months’ imprisonment with a non-parole period of 12 months for count 4 and a Community Correction Order of 6 months’ duration for count 7: [109] (Davies J); [163], [175] (Sweeney J).

Judgment

1. DAVIES J:   The applicant stood trial before Judge T Smith SC and a jury on the following offences:

Counts 1 and 7: Aggravated carry out sexual act towards complainant contrary to s 61KF(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 3 years’ imprisonment and there is no standard non-parole period.

Counts 2, 4, 5 and 8: Aggravated sexual touching contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 7 years’ imprisonment and there is a standard non-parole period of 5 years.

Counts 3 and 6: Aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years’ imprisonment and there is a 10 year standard non-parole period.

2. The jury found the applicant guilty on counts 4 and 7, not guilty on counts 1 and 8, and they were unable to agree on counts 2, 3, 5 and 6.

3. On 5 August 2022 Judge T Smith sentenced the applicant to an aggregate sentence of imprisonment for 2 years 4 months commencing 5 August 2022 and expiring 4 December 2024 with a non-parole period of 1 year 3 months expiring 4 November 2023. The indicative sentences were for count 4, 2 years 2 months with a non-parole period of 1 year 1 month, and for count 7, 8 months’ imprisonment.

4. The applicant now seeks an extension of time to appeal and seeks leave to appeal against both his conviction and the sentence imposed on the following grounds:

Ground One:    The learned trial judge erred in not giving a full good character direction.

Ground Two: The verdicts of guilty in relation to counts 4 and 7 were unreasonable and cannot be supported having regard to the evidence.

Ground Three: The verdicts of guilty in relation to counts 4 and 7 are inconsistent with the not guilty verdict on count 8 and the jury being hung on counts 2, 3, 5 and 6.

Ground Four: The learned sentencing judge erred in determining the section 5 threshold had been crossed in relation to count 7.

Ground Five:   The learned sentencing judge erred in not ordering the sentence of imprisonment to be served by way of intensive correction order.

Ground Six:   The sentence is manifestly excessive.

The offending

5. All of the offending took place as part of a single episode on 22 October 2020. The applicant was the stepfather of the complainant’s best friend, NSO. The complainant, AT, was aged 18 years at the time of the offending. He was diagnosed with autism spectrum disorder and had a mild intellectual disability.

6. The offences occurred when the complainant was sleeping over at the house where the applicant lived with his partner, CS, and his stepson, NSO. Earlier that day he had mowed the lawn at the applicant’s house using his father’s lawn mower.

7. At about 9:30pm, the applicant’s partner and NSO went to bed, leaving the applicant and complainant in the entertainment room watching horror movies. They were each sitting in a chair about a metre away from each other.

Count 1:   Aggravated sexual act (not guilty)

8. The complainant looked over towards the applicant at one stage and said that he saw the applicant “playing with himself…like move his hand down his pants, like under his, under his pants…under his underwear”. The complainant agreed that it was “really dark in the room” but said he could see from the back light on his phone. When it was suggested that he had assumed the applicant was masturbating, he said “No”. When it was suggested, “because all you saw was movement wasn’t it?”, he responded, “Well, what else would he be doing?”

9. There was evidence from the applicant and from the applicant’s partner that the applicant suffered from a functioning neurological disorder which included tremors.

10. The jury acquitted the applicant of this count.

Count 2:   Aggravated sexual touching (hung)

11. The complainant alleged that the applicant said to him, “Have you had sex before?”, and the complainant said “No”. The applicant said, “Do you want to try it?”, and the complainant said “Not really”.

12. The complainant then alleged that the applicant stood up and told the complainant to stand up. The applicant pulled down the complainant’s pants and underpants to below his knees while the complainant was trying to pull them back up. He said he tried to tell the applicant to stop but the applicant said, “Shh, it will be all right – just stand there”. The complainant said that the applicant started playing with him and touching him inappropriately.

13. The jury were unable to agree on a verdict for this count.

Count 3:   Aggravated sexual intercourse without consent (hung)

14. The complainant said that the applicant then started sucking his penis three or four times while the applicant was kneeling down. He said that he tried to pull away, but the applicant put his hand on the complainant’s buttocks and pulled the complainant towards him. He said that the applicant said, “Come on, come in my mouth”, to which the complainant responded that he didn’t want to.

15. The jury were unable to agree on a verdict for this count.

Count 4:   Aggravated sexual touching (guilty)

16. The complainant went to the toilet, partly to get away from the applicant. The applicant followed him inside the bathroom and asked him, “Do you want to be manscaped?” The complainant said that he did not and the applicant said, “All right just stand there, I’ll shave it”.

17. The applicant then used cordless hair trimmers to shave the complainant’s pubic hair around his penis. When the applicant was interviewed by the police he agreed that he had shaved the hair around the complainant’s penis and whilst doing so had brushed the complainant’s penis just lightly, which caused the complainant to get immediately erect.

18. The applicant was found guilty of this count.

Count 5:   Aggravated sexual touching (hung)

19. After the applicant had shaved the complainant’s pubic hair, he told the complainant to get into the shower. The applicant then retrieved baby oil and started masturbating the complainant with the baby oil.

20. The jury were unable to agree on a verdict for this count.

Count 6:   Aggravated sexual intercourse without consent (hung)

21. The complainant said that the applicant then sucked his penis about five times. While he was doing it, the applicant said, “Shh, it will be all right”. The complainant told the applicant that it was a bit weird but the applicant said it wasn’t weird. The complainant said he felt very uncomfortable and the applicant replied, “Don’t be uncomfortable, it’s all good”.

22. The jury were unable to agree on a verdict for this count.

Count 7:   Aggravated sexual act (guilty)

23. After the complainant got dressed he told the applicant he was going to bed. The applicant suggested the complainant stay up and suggested watching pornography. They apparently watched an X-rated movie on a laptop back in the entertainment room for 20 minutes. The applicant suggested that they “jerked each other off”, but the complainant said, “No”. The complainant alleged that the applicant then pulled down his own pants and started masturbating himself.

24. The jury returned a guilty verdict of this count.

Count 8:   Aggravated sexual touching (not guilty)

25. After the applicant masturbated, the complainant said that the applicant masturbated him (the complainant). When the complainant went to bed the applicant told him a few times not to tell anyone.

26. The jury returned a verdict of not guilty for this count.

Complaint evidence

27. At 1:06am the complainant sent a text message to his mother which read, “I should have NOT stayed at [the applicant’s] house”, followed by a message at 1:07am which read, “I can’t sleep”.

28. At 5:38am the complainant sent a message to the applicant which read, “Morning Benj, I’ll be back, I’m just dropping the lawnmower off at my dad’s, I thought I’ll do it before he went to work”. The complainant then pushed the mower back to his father’s house and returned to the applicant’s house.

29. The complainant remained at the applicant’s house. At 9:30am the applicant’s partner CS woke up and saw the complainant in the lounge room. She went outside to have a cigarette, and the complainant went outside also.

30. CS gave evidence that the complainant told her that the applicant “had sucked him off and that [the applicant] had manscaped him from memory and taught him how to or showed him how to masturbate or something along those lines”.

31. Later that evening, the complainant’s father KT picked him up and took him to Raymond Terrace to have dinner. The complainant told his father that the applicant “had touched him during the night and had sucked him off and done other things to him…manscaped or shaved or something”.

32. The complainant and KT then went to Raymond Terrace Police Station and spoke to a police officer, Detective Senior Constable Matthew Delforce, but did not make a formal statement.

33. Detective Delforce made notes in his police notebook which relevantly said:

AT mowed lawn. Decided to stay the night.

Abt 1am Thur. 22/10/20 BF said to AT: “Have you ever had sex?” Everyone in bed. Was drinking JD.

AT “No”.

BF “Do you want to let me suck it?”

Tried to pull AT pants down. Touched penis.

AT went to toilet. BF followed.

BF manscaped AT pubic region w hair trimmer.

BF touched AT penis.

BF pulled pants down and sucked AT penis: abt 3 times.

AT very confused w/- order of events.

AT told CS abt 8-9am that BF and touched and pulled his penis.

(emphasis added)

34. Detective Delforce made an entry on the COPS system which relevantly said:

About 2pm 21/10/20 the victim attended the LOI. Once there he mowed the lawn for the family. After this he decided to stay the night. As a result of this he changed into some clothes owned by Ferguson. During the evening Ferguson was drinking Jack Daniels/Coke mixed drinks. The victim believes that Ferguson drank over 1 of JD.

Some time after midnight, [NSO] and the rest of his family went to bed. It was just Ferguson and the victim in the lounge room. Some time after this, Ferguson has asked the victim if he has ever had sex. The victim replied, "no." After hearing this, Ferguson has says something along the lines of, "well we should give it a try." After Ferguson has said this, he has attempted to pull the victim's shorts down. The victim resisted this and got up and went to the toilet in the bathroom.

Ferguson has followed the victim and while the victim was standing in the bathroom, Ferguson has pulled the victim's shorts down and commenced shaving his pubic region with a hair trimmer. While making the disclosure the victim became a little confused with the sequence of events, but states that Ferguson has performed oral sex on him and has also masturbated the victim's penis. The victim states that he placed oil on the victim's penis to perform this act. The victim did not ejaculate.

The victim has returned to the lounge room, where he has attempted to go to sleep. The victim states that due to the incident, he was only able to sleep for about 3 hours.

Around 9am, the same date, the victim has spoken with [NSO’s] mother [CS] where he disclosed to her that he was sexually touched by Ferguson during the night, while all other household members were asleep. The victim states that [CS] was quite shocked when she heard this. She left the house and went to work.

Just prior to attending the Police Station, the victim disclosed the assault to his father, who decided to attend the station and report the incident.

(emphasis added)

35. After the initial contact with Detective Delforce the complainant went back to the caravan park where he lived. He sent a text to his mother saying he needed to talk to her. She rang him, and he told her:

that he’d been sexually assaulted, that he’d been touched by Benji, he’d been sucked off, that he’d sucked his penis.

36. At the complainant’s request, his mother then went to the police station and spoke with Detective Delforce. She then went to the caravan park, spoke to the complainant and asked him what had happened. She said:

He said that he’d, yeah, that Benji had pulled down his pants and sucked on his penis a few times, touched him and manscaped him, shaved around his penis area.

37. Later that evening, the complainant returned to the police station with his mother and took part in a recorded interview. He relevantly described what happened in these terms:

A Um, and then I was sort of like, stayed the night, we had dinner, went and um, had a shower, all that kind of stuff, then Ben, we watched TV, me and Ben were watching TV, [NSO’s] mum went to bed, [NSO] went to bed, me and Ben left in the lounge room.

Q47 Yeah.

A And then Ben um, um, Ben asked me, "Have you had sex before?" And I said, "No." He said, "Do you want to try it?" I was like, "Not really." Said, "All right." Then walked towards me, pulled my pants down and like, started doing weird stuff.

Q48 Yeah.

A And then I stood up...pulled me towards him, pulled my pants down and started sucking it.

Q49 O.K.

A And then I walked to, I walked to the bathroom to go to the toilet and then he said to me, oh, no, sorry, back before that, I went to the toilet and he's, "Do you want to be man-scaped?" And I was like, "No, I don't want to," and he said, "Come into the bathroom and I'll man-scape it for you." Went to the bathroom, went to the toilet, then he's like, "Turn around." I was like, "Oh, hello." He's like "Oh do you want me to shave it for you?" I was like "Not really" but Ben said "Alright, stand there, I'll shave it." I said "Alright, whatever." He did it...then I went and jumped in the shower…and then started, started jerking me off, like, and sucked it and got baby oil and put it on top of it, that was a bit weird, and then started jerking me off more and then we went out of the bathroom into the lounge room and then we sat there and then I went to bed and I woke up in the morning about 4 o'clock, 4 o'clock and couldn't sleep, text dad to drop the mower off, went and dropped the mower off then um, oh blank. Then Ben was asleep, [CS] was awake, I told [CS] what happened last night, she wasn't very happy. Ben woke up, played dumb when [CS] asked, "What did you do last night?" And then I felt very bad, felt like I've let Ben down, felt like I failed him and l didn't really want to be like that, and then I went, I was sitting there in [NSO’s] bedroom and then in um, their room they were arguing, like, "Fuck this, fuck, why did you do that for, why did you do that," this and that and I was like, oh, shit, should I leave or should I go, should I leave or not, and then I thought, oh, no. Then Ben come down the stairs and then he said, "I'm sorry about last night." And that's all I remember.

Q50 [00.08] O.K. And what time did you leave the house?

A 2 o'clock in the afternoon today.

…

Q54 All right. So let's go back to when it's just you and Ben in the lounge room.

A All right.

Q56 O.K. So before this happened, was Ben doing anything?

A Watching movies.

Q56 Yeah. Anything else?

A Playing with himself.

Q57 When you say playing with himself, what do you mean by that?

A Um, like move his hand down his pants, like under, under his, under his pants, like, what do you call it, under his underwear.

…

Q86 All right. And so then he's asked you again, what did he ask you?

A Um, "Have you had sex?"

Q67 Yeah.

A I went, "No." He said, "Do you want to try it?"

Q68 O.K. And this, and you're still sitting down at this time?

A Yes.

Q69 Yeah. And again just sort of run through…

A I stood up, I just stood up. Ben come over to me and started playing with me, like, touching me inappropriately. I sort of stood up and went to the bathroom. He's like, "No, where are you going?" I said, "Going to the bathroom." So l went to the bathroom and he followed me and he said, "Do you want to be man-scaped?" I was like, "Not really." And he started to do it and I jumped in the shower, jumped in the shower and um, um, he sort of like, played with it very weirdly, weirdly, weirdly.

Q70 [00.11] Yeah.

A And then he sort of like, sucked it and then I walked out to my, went to the bedroom, like, to, like, the lounge room and then, and then…yeah.

Q71 That's all right. When you first told me about in the lounge room when he pulled your pants down…

A Ah hmm.

Q72 …did he do something after he pulled your pants down, can you remember what you first told me?

A Played with it.

Q73 O.K. Anything else?

A I can't remember, sorry.

074 O.K. Did he suck your penis…

A Yes.

Q75 …in the lounge room?

A Yes, more than once.

Q76 0.K. And when was that again?

A In the lounge room.

Q77 Yeah, but when was that?

A Oh, after, like, after I went to the toilet and before too.

Q78 O.K.

A I don't remember the story, sorry.

Q79 No, that's all right, that's all right.

Q80 [00.12) Yeah. That's all right. O.K. And how many times did he suck it?

A Three or four.

Q81 O.K. And what did you do or what did…

A Like, try and pull away and he put 'cause he put his hand on my back up.

Q82 He did?

A Mmm.

Q83 O.K. And how did he do that?

A Um, put his hands on my butt, like, on me back, like, pull away, and so like yeah, pulled me towards him.

Q84 All right. How was he positioned?

A …kneeling...kneeling. I can't say the word properly.

Q85 No, that's all right. O.K. So what made you go to the toilet?

A I needed to do a wee.

Q86 You needed to do the wee?

A Yeah.

Q87 O.K.

A And get away from him.

Q88 Yeah.

A So I said I needed to go to the toilet to get away from him.

Q89 Yeah. O.K. So then you went to the toilet and then you told me that he…

A Followed me.

Q90 [00.13] Yeah, followed you. And then he man-scaped you.

A Yes.

Q91 Yeah. What do you mean by that?

A Ah, hair trimmers kind of thing, like, shaved it, like…yeah.

Q92 Yeah. And what did he shave?

A The hair.

Q93 Yeah. And the hair from?

A My penis, the area around it.

…

A On the bench, on the basin.

Q98 All right. And after that, tell me again what's happened.

A I jumped in the shower and he sort of like, followed me and like, not followed me, like, hopped in, not hopped in the shower but hopped next to it sort of like jerking off with baby oil and sort of sucked it and walked out. I was like, O.K. And I walked out and wiped myself, like dried myself up and walked out and then...um, went to the loungeroom and just sat there, watched TV. I said, "I'm going to bed," and he's like, "No, where are you going?" I said, “l’m going to my bed." Went to bed, woke up in the morning and that's all I remember.

(emphasis added)

38. The complainant’s father gave evidence that he met the complainant after he (the father) finished his work and they went to a noodle place to have dinner. His evidence about what the complainant told him was this:

Q. You've told us - excuse me, your Honour - what happened? Tell us why you ended up going to the police station?

A. [AT] had told me that [NSO’s] father - stepfather had touched him during the night and had sucked him off and done other things to him, and yeah, I was, yeah, taken aback.

Q. Did he say what those other things were that was done to him?

A. Manscaped or shaved or something and yeah.

Q. Do you remember if he said anything else?

A. At the time I sort of was very shocked and told him I think we should go up to the police station. At that point he just broke down crying and yeah, it wasn't - it wasn't good.

Q. Did he say anything about any conversations that he had had with [NSO’s] stepdad, anything that [NSO’s] stepdad may have said to him or he may have said to the stepdad?

A. He told me he didn't want to do things and it still happened and I said, "Well, why did you let them happen?" But at that point - yeah, I think at that point he did break down and that's when I took him up to the police station.  

39. The complainant’s father said that he wrote some notes down (the inference being about what the complainant told him) but he had searched the house and been unable to find them. He confirmed in cross-examination that the evidence he gave in chief consisted of the main details he could remember and were the most important things that AT told him. His evidence was not otherwise challenged.

Ground 1:    The learned trial judge erred in not giving a full good character direction

40. Evidence was given by Detective Delforce, the Officer in Charge, that the applicant had never previously been charged with a sexual offence of any kind. However, in 2015 the applicant had been sentenced to a good behaviour bond for possessing an unauthorised firearm and to monetary penalties for possessing ammunition and not keeping a firearm safe. That information obviously was not provided to the jury.

41. The applicant’s partner, CS, gave evidence about the applicant in answer to a question from the applicant’s counsel, as follows:

He's honest without a fault. There's no lies, no deceit. He's straightforward, honest. … If he was not honest, there would be no doubt that I would not be in that relationship.

42. The trial judge, in giving directions about good character, said this:

I am going to move to a completely different topic which is referred to as good character evidence. You have heard from the officer-in-charge that the accused has not been charged or convicted of any sexual offences. Evidence of this type is characterised by the law as evidence of good character. The law says that you can take this kind of evidence into account in favour of the accused. How?

You can take into account when considering the likelihood that the accused committed the offences alleged against him on the basis of the evidence that he has not been charged or convicted of any sexual offence. You are entitled to reason that it is unlikely that he has acted in the way alleged by the Crown.

You also heard some good character evidence in a different respect that was led from the accused's partner, [CS], insofar as she gave evidence that in the time that she has known the accused (which was over seven or eight years, including two years of being in a relationship with him) that she had found the accused to be honest without a fault – no lies, no deceits, straightforward and honest.

In terms of [CS’s] evidence, it is a matter for you if you accept that part of her evidence. You would assess her evidence in that respect just like the process I told you about earlier in terms of assessing witnesses' evidence. It is for you to decide what parts you accept and what parts you reject. It is a matter for you if you accept that part of her evidence. If you do accept that part of her evidence, then you can use that when assessing the accused's record of interview and his evidence.

Whilst the evidence of the accused's good character is what you find established, there is no issue in relation to the evidence of having no prior charging or convictions for sexual offences – that is not an issue, so you can have regard to that evidence. The question is whether you also would find or accept the evidence of [CS].

That evidence of good character, depending on whether you find both or just the first one, are matters that you must take into account when you are determining whether the Crown has discharged the onus of proof in relation to each count. But understand that the evidence does not provide the accused with some sort of defence or a shield. This is because as a general proposition, you would recognise the potential exists for people to commit a criminal offence of a sexual nature for a first time.

Ultimately, what weight you give to the good character evidence (that is how much importance you place upon it) is completely a matter for you, bearing in mind the directions that I have given you.

43. The applicant submitted that evidence of good character was notoriously important in cases of sexual assault which turn upon word on word factual disputes between the complainant and the accused, citing Xu v R [2019] NSWCCA 178 at [37].

44. The applicant submitted that the draft direction for good character contained an additional sentence which was not referred to by the trial judge as follows:

You may reason that a person of good character is less likely to lie or give a false account either in giving evidence before you or in giving an account of the events in answer to questions asked by the police.

45. The applicant submitted that where the Crown prosecutor emphasised to the jury in his address the issue of the applicant’s truthfulness and reliability, the additional direction ought to have been given by the trial judge, and there was no forensic reason not to seek such a direction.

46. Following the conclusion of counsel’s addresses her Honour discussed proposed directions with counsel. Counsel for the applicant said he proposed that a good character direction should be given although he had not turned his mind to the precise wording of it. The trial judge raised with the Crown the relevance of CS’s evidence about the applicant’s honesty and suggested it could only be relevant to good character. Her Honour suggested that the Crown think about that evidence overnight.

47. On the following morning, this exchange took place between her Honour and counsel in relation to a good character direction:

HER HONOUR: …The good character direction, Mr Crown.

CROWN PROSECUTOR: Your Honour, a direction in relation to credibility of witnesses, any witness, it's a matter for a jury whether they accept part or all.

HER HONOUR: Yes. The difficulty is this is - yes. All right. Yes, please go ahead. Are you saying that there (scil. they) would accept her evidence in that respect, [CS’s] evidence--

CROWN PROSECUTOR: It's a matter for the jury as to whether they accept it. It's a question of weight, given her relationship with the accused. They will have evidence before them of what the accused said, versions the accused has given. It's a question for the jury as to whether or not what [CS] may say about her partner being honest.

HER HONOUR: The only reason it's in there, as the purpose of it, is to be relied upon as good character evidence. You didn't seek to cross-examine her in respect of that aspect. You haven't made submissions to the jury about why they'd reject that evidence. It's obviously open to them, nevertheless, to reject it. What I was proposing to say is that you've also heard some good character evidence in a particular respect. Sorry, no. You've heard some good character evidence in a different respect because I've already dealt with the evidence about the lack of charging or criminal convictions for sexual offences, and how they can take that into account.

I'll just say you also heard some good character evidence in a different respect from the accused's partner, [CS], insofar as she gave evidence that in the time which she'd known the accused, which was over seven or eight years, including two years of being in a committed relationship with him, that she found the accused to be honest, without a fault, no lie, no deceit, straightforward and honest. It's a matter for you whether you actually accept that evidence. If you do accept that evidence, you can use that evidence when assessing the accused's record of interview and his evidence. That's the limited way in which they could take it into account, if they accept it.

Furthermore, I want to say whilst the evidence of the accused's good character is evidence you must take into account when you're determining whether the Crown - when the evidence of good character you find established, I'll make sure that's clear, is evidence you must take into account when you're determining whether the Crown has discharged the onus of proof in relation to each count. I understand that the evidence does not provide the accused with some sort of defence or shield. This is because as a general proposition, you'd recognise the potential exists for people to commit a criminal offence of a sexual nature for a first time. Ultimately, what weight you give the good character evidence, that is how much importance you place upon is completely a matter for you.

CROWN PROSECUTOR: With those qualifications, your Honour, there's no objection.

HER HONOUR: Mr Boyd.

BOYD: No, your Honour. That's how I anticipated it would be directed.

48. The applicant accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) would apply, but submitted that the absence of the identified portion of the direction gave rise to miscarriage of justice by reason of what was said in Xu.

49. At the conclusion of the summing up, the trial judge asked counsel if there were any issues they wished to raise, and both counsel said that they did not have any issues.

50. In my opinion, no miscarriage of justice is demonstrated by the applicant for three reasons. First, there is no obligation to give any particular direction with respect to character evidence: Simic v The Queen (1980) 133 CLR 319; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32. In such circumstances, Basten JA (with whom RA Hulme and N Adams JJ agreed) said in FB v R [2020] NSWCCA 137 at [36] that there can be very little opportunity to allege a miscarriage of justice where some direction was given.

51. The direction in the present case had to be carefully crafted because the applicant did not have good character at law in all respects because of his prior convictions. Where a person has convictions, although not in respect of the matters charged, a danger can arise if care is not taken with the way any character direction is given to avoid speculation on the part of the jury about what convictions an applicant did have: Gallant v Regina [2006] NSWCCA 339 at [33].

48. Secondly, the trial judge’s direction was given in precisely the terms her Honour had read to counsel in the absence of the jury, and the applicant’s counsel went so far as to say “that’s how I anticipated it would be directed”. That is cogent evidence in the atmosphere of the trial that the applicant’s counsel saw no injustice in what was done: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]; Latu v R [2023] NSWCCA 19 at [76]-[77]; Marco v R [2023] NSWCCA 307 at [63]; Kumar v R [2023] NSWCCA 156 at [91].

49. Thirdly, part of the direction told the jury that if they accepted CS’s evidence of the applicant’s honesty, they could use that when considering both what he said in his ERISP and his evidence. Given that he did not have good character at law in all respects, that direction was as close to what the applicant is now asserting should have been given as it could be. It is significant in that regard that CS’s evidence about the applicant’s honesty was not challenged. The difficulty arising from the applicant’s prior criminal record provides an explanation for the forensic decision taken by trial counsel to agree with what the trial judge proposed.

50. Xu was a very different case from the present. The applicant in that case had no prior convictions of any sort, and the jury was never made aware of the applicant’s prior good character in any way by evidence, counsel’s address or direction. This Court found at [35] that there was no obvious or apparent legitimate forensic purpose not to adduce evidence of good character, and at [38] that even the slightest good character evidence could have been critical to the outcome.

51. In the present case, there was good character evidence, there was a legitimate forensic explanation for the full direction not being given, and the matter had been discussed and agreed beforehand by the trial judge and the applicant’s trial counsel.

52. Leave should be refused to rely on this ground by reason of r 4.15.

Ground Three: The verdicts of guilty in relation to counts 4 and 7 are inconsistent with the not guilty verdict on count 8 and the jury being hung on counts 2, 3, 5 and 6

57. It is convenient, as the parties did, to deal with this ground next.

58. The events of the night, as alleged by the complainant, can be divided into three stages. The first stage consisted of counts 1, 2 and 3 which were alleged to have taken place in the entertainment room where the complainant and the applicant were watching television. The jury found the applicant not guilty on count 1 (self-masturbation) but could not agree on count 2 (sexual touching of the complainant) and count 3 (applicant fellating the complainant).

59. The second stage took place in or near the bathroom and consisted of count 4 (manscaping) for which a guilty verdict was returned, count 5 (applicant masturbating the complainant) and count 6 (applicant fellating the complainant) on both of which counts the jury could not agree.

60. The third stage, and the stage with the most significance for ground 3, took place again in the entertainment room where the jury found the applicant guilty of count 7 (masturbating himself) but not guilty of count 8 (masturbating the complainant).

61. In Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35 the joint judgment of Gaudron, Gummow and Kirby JJ said at 366:

Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

62. In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Spigelman CJ said at [34]:

In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by Jones is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury as emphasised in M, MacKenzie and Jones quoted above.

63. In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 Simpson J (McClellan CJ at CL and Latham J agreeing) said at [130] that the court must inquire whether there exists any rational explanation for the acquittals, not the convictions, and went on to say:

The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.

64. The applicant accepted that there was a rational explanation for the acquittal on count 1. The applicant may have been acquitted either because of the evidence of the applicant’s functional neurological disorder, and the description given by the applicant’s partner of how that manifested itself, and/or by reason of the fact that the count was said to be a sexual act carried out “towards” the complainant. In that regard, the evidence was that the room was very dark with the lights off and AT could not see much. All he could see was some movement but not the applicant’s hand. The element of the offence being conducted towards the complainant might easily have explained the acquittal.

65. The ground of appeal seeks to rely not only on the not guilty verdict on count 8 but also the absence of verdicts in relation to counts 2, 3, 5 and 6. The issue of whether regard can be had to the failure to reach a verdict on one or more counts is still a matter of some contention in the authorities. For the reasons which follow, I do not consider that regard should be had to the failure to reach verdicts in the present case to reach a conclusion on this ground of appeal.

66. I would adopt the careful analysis of the authorities by Bathurst CJ (with whom Bell P (as his Honour then was) agreed) in Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 at [235]-[248]. I agree with his Honour’s conclusion that it is only in very limited circumstances that the principles dealing with inconsistent verdicts can apply where the inconsistency is between a failure to reach a verdict and a verdict of guilty.

67. The position in the present matter does not fall within the limited class of cases where a conviction on the one hand and a failure to agree is an affront to logic and common sense. In Crofts v R [2018] VSCA 197 at [136] Weinberg JA identified different defences and different evidence pertaining to the offences being compared as providing a basis for concluding that the different outcomes could stand together on a rational basis. In the present case, the counts where no verdicts were reached concerned different evidence from the evidence relating to count 8. Those offences constituted stages 1 and 2 of the evening; two, possibly three, of them involved evidence about the applicant’s ability to kneel, and one of them involved the issue of whether there was baby oil in the house.

68. The question of inconsistency should be dealt with by an examination of counts 7 and 8 in the circumstances where the applicant accepts a rational explanation for the not guilty verdict on count 1.

69. The first time that AT gave a version of counts 7 and 8 was in his statement to the police of 13 November 2021. The evidence at the trial concerning those counts emerged in this way in the complainant’s evidence in chief:

Q. Who left the bathroom first, you or Ben?

A. Ben.

Q. Where did Ben go, do you know?

A. The lounge room. Entertainment room, sorry.

Q. What did you do when Ben went to the entertainment room?

A. I got changed and went back in there.

Q. What happened when you went back to the entertainment room?

A. He suggested watching porn.

…

Q. Do you remember what words he used to say that or to suggest that? Do you remember what he said to you?

A. No, sorry.

Q. Okay, what did you say when he made that suggestion?

A. I just said, not really, he's like, "It's going to be all right." I said, "Okay, whatever."

Q. So what did you do after that, did you stay in the room, did you go somewhere else?

A. I said I was going to bed.

Q. After you said, okay whatever, what did Ben do?

BOYD: I object.

…

CROWN PROSECUTOR

Q. I'll go back a step, [AT]. You said that you were going to go to bed?

A. Yeah.

Q. What happened then?

A. Well, before I went to bed, I sat and watched it. I got mixed up.

Q. That's okay. So you watched it. When you say you watched it, what did you watch?

A. XHamster.

Q. The Samsung?

A. XHamster. XHamster.

Q. And what's X Hamster?

A. A porn site.

Q. Where were you when you watched that porn site?

A. Left hand side of the entertainment room.

Q. Were you standing, were you sitting?

A. I was sitting.

Q. Where was Ben when you were watching that xHamster - xHamster porn site?

A. He was next to me.

Q. What was the xHamster playing on?

A. Laptop, laptop, yeah, so.

Q. Where was the laptop when you were sitting there with Ben?

A. On a chair. Up on a bench kind of stool thing.

Q. After you started watching xHamster with Ben, what happened then?

A. Ben suggested about jerking me off.

Q. Do you remember what words he said to you to suggest jerking you off?

A. Sorry, we jerked (sic ? jerk) each other off.

Q. What did you say when Ben asked you that?

A. No, I'm right. No, thank you.

Q What did Ben do when you told him that?

BOYD: Objection.

WITNESS: Pulled his pants down and started jerking his dick.

BOYD: I don’t press it, your Honour.

HER HONOUR: You don’t press it, no, that’s fine, thank you.

CROWN PROSECUTOR

Q. What did you do when Ben did that?

A. I just sat there.

Q. What's the next thing you remember happening?

A. I don't remember, sorry.

Q. How long were you sitting there in the entertainment room for watching xHamster with Ben?

A. 20 minutes or so.

Q. You've told us that Ben was massaging his dick when he was sitting there watching xHamster?

A. Yes.

Q. How long did he do that for, do you know?

A. I don't know, it was very dark.

Q. Did you stay in the room?

A. Until it turned off, yes.

Q. Did you say until it turned off?

A. Yeah.

Q. What did you do then when it turned off?

A. I went to bed.

…

Q. Was there anything else that happened in that room?

A. Not that I can recall at the moment.

70. A little later in his evidence in chief the complainant was referred, pursuant to leave having been granted under s 32 of the Evidence Act 1995 (NSW) to a statement he had made to the police on 13 November 2021. He then gave this evidence:

Q. [AT], the last question that I asked you was are you able to recall anything else that happened in the entertainment room, and that's when you came back from the bathroom. You told us about xHamster being played on the computer, and told us about Ben jerking off. When I asked you was there anything else that happened before you went off to bed, you said, "Not that I can recall at the moment"; do you remember saying that?

A. Yes.

Q. [AT], could you please look at those envelopes on the desk in front of you; there should be one with the number 2 on it? If you could just take that out; is that a copy of the statement that you made to Matt on 13 November 2021?

A. Yes.

Q. What I want you to do is to yourself could you read paragraph 7, just read it to yourself, just paragraph 7, that's on the second page, it's got a number 7 and it's what's written after the number 7; have you read through that?

A. Yes.

Q. If I ask you again was there anything else that happened in the entertainment room when you were sitting there watching xHamster playing, what would your answer be?

A. Yes, there is.

Q. Can you tell us what else? You've read all of that paragraph 7, have you [AT]?

A. Yes.

Q. Okay, well I don't want you to read it out. Are you able to now, if I ask you did anything else happen in the entertainment room, what would you say?

A. Yes, there is.

Q. Can you tell me what else happened?

A. Umm that Ben was jerking me off as well--

Q. When you say--

A. Sorry.

Q. I'll stop you there. When you say he was "jerking you off", what was he doing to you; what do you mean by "jerking off"?

A. Umm, like, wanking, I don't know, I don't know how to explain it type--

HER HONOUR

Q. What action’s involved when you describe that word "jerking"; what's he actually doing?

A. Umm, moving his hand up and down.

CROWN PROSECUTOR

Q. He's moving his hand up and down, what's he moving--

A. Uh-huh.

Q. He's moving his hand and up down, what's he doing to you though when he's moving his hand up and down?

A. Jerking my penis.

Q. Moving his hand up and down on your penis?

A. Yes.

Q. How long did he do that for?

A. Five or ten minutes.

Q. Did you say anything to him when he was doing that to you?

A. No, I said - I did say to him, yes sorry, I said umm something and then he's like, "Shh, it'll be all right, just sit there quietly".

Q. Do you remember what you said to him though, what words you said to him?

A. "Please stop", I can't - I just can't remember much, sorry.

Q. When he stopped, what did you do then?

A. Walked away.

Q. Did anything happen to your penis when he was jerking you off?

A. No.

Q. Do you know what the term "ejaculate" means, [AT]?

A. Yes.

Q. Did you ejaculate?

A. No, I was not.

Q. They are the questions I have, thank you, [AT].

A. Thank you.

…

CROSS-EXAMINATION BY MR BOYD

…

Q. You just said that - I want to ask you some questions about the second time in the entertainment room.

A. Yep.

Q. And what Andrew has just been asking you questions about; is that okay?

A. That's fine, yes.

Q. Did you just say that when Ben was jerking your penis, you told him to please stop?

A. Yes.

Q. Did you say that more than once?

A. No, I don't think so, no.

Q. Did he keep jerking your penis when you said, "Please stop"?

A. Yes, he said, "Shh, it will be all right".

Q. How did you feel when that happened?

A. A bit uncomfortable.

Q. Were you upset?

A. Yes, I was.

Q. Were you getting angry with Ben?

A. No, I was more scared than anything.

Q. You said earlier to Andrew that it was "really dark" in that entertainment room.

A. It was, yes.

Q. I think you said you couldn't see much; is that right?

A. No, I could not, yes.

Q. Just so we're really clear, it was really dark the second time that you went to the entertainment room?

A. Yeah, the lights were off, yes.

Q. Was it really dark in the entertainment room the first time?

A. Yes.

Q. You couldn't see much in the entertainment room the first time as well?

A. Not really, yeah.

Q. You told Andrew a moment ago about the laptop was on a bench stool.

A. Yeah.

Q. What was the bench stool made of?

A. Um, wood, I think.

Q. Are you able to tell me how big it was; can you show me with your arms how big it was?

A. Like a stool.

BOYD: I think the witness has indicated about shoulder-width.

Q. Is that about right?

A. Yes, about that tall, that wide.

HER HONOUR

Q. We can't see the bottom of your hand, [AT], can you show us a little bit - okay, all right, okay.

A. Yep.

BOYD

Q. If you were to, say, put your hand inline with your belly button and your other hand inline where you think the top of the stool would be?

A. About there.

Q. Is it about as high from your belly button to the top of your head?

A. Yeah.

Q. Was that in the entertainment room on the first time?

A. No.

Q. It wasn't in the entertainment room on the first time?

A. What, the stool?

Q. Yes.

A. Ah, not that I can recall, no.

…

BOYD

Q. I just want to be really clear; I'm asking you now again about this second time in the entertainment room, okay; do you understand that?

A. Yep.

Q. You just said to me that you only said, "Please stop" once; is that right?

A. Maybe more.

Q. How many times do you think you said, "Please stop"?

A. Three or four.

Q. Each time you said it, did Ben stop at all?

A. Ah, no.

Q. Did you keep saying it because you wanted him to stop?

A. Yes.

Q. Did you keep saying it to him louder and louder?

A. Tried to, yeah, but they might wake up, that might wake them up, like, found out.

Q. I didn't quite hear what you said, can you repeat it?

A. I didn't want to wake up [NSO] and [CS].

HER HONOUR

Q. "I didn't want to wake up [NSO] and [CS]"; is that what you said?

A. Yes.

BOYD

Q. But you were quite scared in that moment; is that correct?

A. Yes, I was.

Q. That second time in the entertainment room, it is something that has stuck in your memory?

A. Yes, it is.

Q. It is very clear that that happened?

A. Yep.

71. Given that counts 7 and 8 occurred reasonably contemporaneously and in the third stage of the evening, as I have categorised it, the central question for determination is whether there is a reasonable explanation for the acquittal on count 8.

72. In my opinion, two matters provide a rational explanation why the jury returned a not guilty verdict for count 8 but not for counts 4 and 7. First, the complainant gave no evidence about matters tending to prove count 8 until his memory had been refreshed following the application under s 32 of the Evidence Act by the Crown. That was a matter of increased significance where, in the first place, the complainant had not said anything about sexual acts taking place in the entertainment room following what was said to have occurred in the bathroom until he gave his statement to the police on 13 November 2021.

73. Prior to refreshing his memory he only volunteered that, on returning to the entertainment room, the applicant suggested “jerking me off”, but when the complainant said he refused that offer, the applicant “pulled his pants down and started jerking his dick”. He was asked “was there anything else that happened in that room?” and the complainant said, “Not that I can recall at the moment”.

74. The second matter supporting the jury’s not guilty verdict for count 8 was that, when the complainant was cross-examined about the evidence given after he refreshed his memory, that he asked the applicant to stop on three or four occasions, he first said that he did not say it louder because he did not want to wake up his friend NSO and CS. However, the following day, while being cross-examined, the complainant gave evidence for the first time that he was scared when the applicant was masturbating him that the applicant was going to hit him with a machete that he had in the room. This was the first time there had been any mention by the complainant of a machete.

75. The applicant’s evidence about the machete was unsatisfactory for a number of reasons. First, as noted, there had been no prior reference to it in any complaint, statement, interview or evidence in chief by the complainant. Secondly, when the cross-examiner asked, “He had a machete next to his chair, did he?”, the complainant replied, “Yes, he must have hid it because the police coming…knew the police were coming.” That unsolicited statement might have suggested to the jury that the complainant was endeavouring to make his evidence about the machete more credible when no machete had been found.

76. Thirdly, the complainant then gave this evidence:

Q. Did you tell dad about the machete?

A. I said to dad, he had a machete in his room, yes.

Q. You're very clear he had a machete and you told dad that?

A. Only briefly.

Q. I should re-ask that. Are you clear that you told dad about the machete?

A. I'm not clear that he remembers but I know I told him.

Again, the part of the last answer “I’m not clear that he remembers” (apart from being inadmissible) might be thought to be an attempt to explain in advance why his father might not give evidence of having been told by the complainant about the machete, in order to make his evidence about it more credible. In fact, the complainant’s father did not give evidence that the complainant had mentioned a machete.

77. Fourthly, when further cross-examined about the machete, the complainant asserted that he had told Detective Delforce about the machete on the night of his interview although not in the interview. Detective Delforce gave evidence that at no stage did the complainant tell him about a machete.

77. Fifthly, CS gave evidence that there was no machete in the house. Further, Detective Jeffrey Castle gave evidence that when he searched the applicant’s house he did not see any machete. That was in circumstances where the applicant was not on notice that complaint had been made to the police or that the police were coming to his house. It must be accepted, however, that the search was not a thorough search pursuant to a warrant, and Detective Castle said he would have noticed a machete “if it was apparent”.

78. In all of those circumstances the jury could well have had a reasonable doubt concerning the evidence about count 8.

79. I would reject this ground of appeal.

Ground Two: The verdicts of guilty in relation to counts 4 and 7 were unreasonable and cannot be supported having regard to the evidence.

81. The approach an appeal court must take to consideration of a ground that the verdict was unreasonable is well established. To make clear the approach that this court takes to the matter it is necessary only to set out three brief passages from decisions of the High Court.

82. In Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 the High Court said at [7]-[8]:

[7] Nevertheless, as the decision under appeal illustrates, undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the Court of Criminal Appeal from the proper performance of the assessment required of it by s 158(1)(a) of the Criminal Procedure Act when determining on an appeal against conviction whether the verdict "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence". That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.

[8]   That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence".

(citations and footnotes omitted)

83. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63, the judgment of Mason CJ, Deane, Dawson and Toohey JJ said at 494-495:

It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that a court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(citations and footnotes omitted)

84. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, the High Court said at [39]:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

85. The applicant submitted that the totality of the following evidentiary circumstances would lead the court to be satisfied that the verdict was unreasonable and was unsupported by the evidence:

I.   On 22 October 2020 AT provided a JIRT audio and video recording to police of the events that were said to have occurred in the time frame covered in the indictment. The conduct was alleged to have occurred in the hours before the audio visual recording occurred.

II.   On 13 November 2021 AT provided police with a written statement about events that were said to have happened on 22 October 2020. The statement disclosed further material that was not captured in his original statement to police.

III.   On 8 March 2022 AT gave oral evidence in chief in the applicant's trial and was subject to some cross examination.

IV.   On 9 March 2022 AT was subject to further cross examination. On this date AT stated, for the first time, he didn't try and get NSO's or [CS’s] attention when the offending conduct was occurring because he didn't want to wake them up, and also because he was scared of the applicant who had a machete in his room and he was going to hit AT with it. AT stated he'd told his dad about the machete, but curiously, AT was not clear that his dad remembered the machete reference. KT's evidence, AT's dad, provided no support for mentioning a machete.

V.   The applicant stated there'd never been a machete in the house. [CS] stated there had never been a machete in the room or the house. Detective CASTLE who attended the applicant's address about 11.10pm on 22 October 2020 did not see a machete while taking photographs of evidentiary material. Detective DELFORCE's evidence was AT did not mention a machete before, during or after the video recording on 22 October 2020.

VI. Notwithstanding s 293A of the Criminal Procedure Act permits a warning to be given to the jury that experience shows a complainant in a prescribed sexual offence may give different accounts it is still a relevant factor to take into consideration in a ground asserting a verdict of guilty was unreasonable or unsupported by the evidence.

VII.   Counts 7 and 8 on the trial indictment were only disclosed in the statement of November 2021, not in the earlier interview of 22 October 2020, with AT eventually asserting he didn’t think the police would believe him.

VIII. AT's account at Q&A 47&48 of the first JIRT interview on 22 October 2020 was that that the applicant pulled his (AT's) pants down in the lounge room and sucked his penis. In cross examination AT said the applicant pulled his own pants and underpants down below his knees. AT stated he told Detective DELFORCE the first time he met him that the applicant had pulled his pants all the way down and sucked his penis in the entertainment room. Detective DELFORCE's evidence was that AT told him the applicant had tried to pull AT's pants down, that he resisted and went to the toilet and engaged in oral sex.

IX.   It is not only that AT spoke about a machete but that he was able to give a somewhat detailed description of it in evidence. The machete looked like a big, long knife; the handle and the blade were about 1 metre; the handle looked like a 'rough, I don't know, a leather handle'; the blade looked like a sword blade coloured silver; the applicant showed the machete to AT. All details that only ever arose in cross examination.

X.   AT left the premises where the conduct was alleged to have occurred on the morning of 22 October 2020 to return the mower to his dad's place. AT then returned to the applicant's address and was wilfully alone in the company of the applicant for a period of hours on 22 October 2020 post the alleged offences.

XI.   AT stated the applicant was in a kneeling position when he (AT) was in the shower. [CS] gave evidence there were occasions when the applicant would get on his knees and could not get up unless she helped him. She continued, 'he is not physically able to lift himself or manoeuvre himself to get himself back on his feet'. The applicant gave evidence he could not kneel.

XII.   AT asserted the applicant consumed 'Jack Daniel's with coke a litre and a half of it' on the afternoon of 21 October 2020. [CS] gave evidence the applicant had a couple of Jack Daniels in the evening and was shown a photo displaying a JD bottle. There was only one bottle of Jack Daniels at the house when AT came over because [CS] shops for the household.

XIII.   AT stated the applicant had consumed a bottle and a half of Jack Daniels, while he only had one half of a glass, and the applicant left the address on his motor cycle to get another bottle of Jack Daniels at 3pm in the afternoon before the alleged conduct. The applicant stated his daily routine was to sit in his chair and watch Netflix leaving the house ‘very rarely’ because of his tremors; he didn’t leave the house on his motorbike on 21/22 October 2022; in October 2020 he was not physically able to ride his motorbike; [CS] bought all the consumables in the house. [CS]’s evidence was from the time AT arrived at the house on 21 October 2020 until 22 October 2020 the applicant did not leave the address. As at October 2020 the applicant's licence was suspended due to his medical condition.

XIV.   AT stated the final wave of offending occurred in the lounge/entertainment room with the applicant putting a laptop on a stool constructed of wood. [CS] indicated there was never a stool in the entertainment room. The applicant stated there has never been a stool made of wood in the room identified by AT.

XV.   AT in cross examination was asked about texting after he had left the applicant's premises. AT stated he always texts 'responsibly and respectfully'. AT was taken to texts he had sent while at Dungog High School, which during a voir dire the learned trial judge described as 'clearly abusive text messages'. AT's evidence about those messages was the messages were irrelevant, they were not abusive and 'I'm a bit confused what's it got to do with a paedophile' before saying, 'I was young and stupid. It was abusive, yes, agree'.

XVI.   At the time of the allegations AT was living in a caravan park. AT acknowledged when at High School in 2020 he was not getting on with his dad and lived in a caravan park because his dad wanted AT to do things that he didn't want to do and his dad didn't want to talk to him.AT didn't like living in the caravan park because of 'the junkies' as 'they took money off him’. There were times where he was trying to find somewhere else to live and he felt like living in the caravan park was like living in gaol. AT acknowledged he'd spent time in juvenile detention and having told the applicant he'd been in gaol before going to the caravan park while denying he'd told the applicant the caravan park felt like a goal.

XVII.   The applicant’s evidence was AT told him he felt the caravan park was like a prison and he wanted somewhere else to live, felt lonely, sad and depressed and didn't like the living situation whatsoever; AT told him multiple times he lived alone as he couldn't live with his family due to domestic violence issues with his parents, his cognitive issues and his anger issues; [CS] gave evidence AT had asked her, the applicant, and originally NSO if he could live in the spare room at her house, with the response from the applicant and her being no.

XVIII.   One accusation faced by the applicant was in relation to conduct in the bathroom. AT stated he verbally declined being 'manscaped' before after a further inquiry by the applicant AT said, ‘Alright, whatever’. The applicant then 'manscaped' around AT's penis. AT got in the shower and then the applicant started ‘jerking me off, like, and sucked it and got baby oil and put it on top of" AT's penis.’ The applicant denied all conduct other than 'manscaping' at request. [CS] gave evidence there was no baby oil in the house as she’s the one who does the grocery shopping and she hadn’t purchased any for the house. There was no evidence baby oil had been seized by police when they were permitted without warrant to search the applicant’s premises.

(emphasis added)

86. The present consideration of unreasonableness involves two counts only being count 4 (the manscaping) and count 7 (the applicant masturbating himself in the entertainment room whilst watching XHamster). In relation to count 4 the applicant admitted to having carried out the physical act involved in this offence. Indeed, as Button J observed during the hearing of the appeal, count 4 was different from the other counts by reason of the fact that the applicant admitted to carrying out the act of manscaping the complainant.

87. Although on appeal the applicant’s counsel sought to distinguish the issue of whether the touching was sexual from his acceptance that the physical act occurred, trial counsel said in his closing address:

Although you’ve been given the directions relating to what sexual touching means and in relation to the issue of consent, in my submission the real issue for you to determine in relation to count 4 is again whether you are satisfied beyond reasonable doubt that the shaving occurred as [AT] says it did. That is because it is accepted that if, and in my submission it is a big if in this case, it did occur as [AT] claims that he initially told the accused that he didn't want to, and in light of what [AT] also says occurred the first time in the entertainment room, then clearly the elements of count 4 would be satisfied. That's an offence.

But as you heard, Mr Ferguson's account is that the shaving occurred in very different circumstances, that there was nothing sexual at all about it. It was done with the complainant's free and voluntary consent because it was in fact [AT] who asked him to do it. On his account, you would not be satisfied that a reasonable person would consider the touching sexual, nor would you find that [AT] was not consenting, or that Mr Ferguson knew [AT] was not consenting. So again, if I can break it down, the real issue in my submission for you, and it is a matter for you, in my submission the real issue in relation to count 4 is simply whether you are satisfied beyond reasonable doubt that you can accept [AT’s] evidence on that count as reliable.

88. The trial judge said in her summing up:

The issue in respect of count four is whether you are satisfied, beyond reasonable doubt, that the complainant's evidence in relation to the circumstances surrounding the shaving of the pubic hair is reliable (that is, honest and accurate) beyond reasonable doubt. The Crown submits that you would so find, whilst on behalf of the accused it is submitted that you would not make that finding.

Mr Boyd submitted on behalf of the accused that you would find that the accused's version of the circumstances surrounding the shaving of the pubic hair is reasonably possibly true, and that if you did so find, you would have to acquit the accused of this count because that would mean you would not be satisfied beyond reasonable doubt of the essential elements, including that the complainant was not consenting to the act of shaving because, as I outlined earlier, the accused's version is that the shaving only occurred after the complainant asked him to do it.

In order to establish count four, the Crown needs to establish that the shaving was done without the consent of the complainant. So, therefore, if the accused's version is reasonably possibly true, that means that that particular element, for example, cannot be established beyond reasonable doubt. You would have a reasonable doubt about that issue.

…

He [Mr Boyd] submitted the real issue in relation to count four is whether you are satisfied beyond reasonable doubt that the shaving occurred as the complainant says it did, and only if you did accept the complainant’s evidence beyond reasonable doubt as reliable (that is, honest and accurate) that you would find the elements of count four satisfied.

89. Bearing in mind what was said in Pell at [39], and the “real issue” on count 4, it can be taken that the jury did not accept the applicant’s account of how the manscaping came about and did accept the complainant’s evidence about it. That meant that the jury accepted that it was done without the complainant’s consent and it could be characterised as sexual touching.

90. The only remaining question about count 4, and for count 7, is whether, because of the matters raised generally about the complainant’s evidence (at [85] above), it was not open to the jury to have accepted the complainant’s evidence about these counts.

91. The matters raised in points I, II, III and VII together make the point that the accounts given by the complainant disclosed increasing detail over, ultimately, a period of some 13 months. In Lee v R [2023] NSWCCA 203 Kirk JA (Button and Lonergan JJ agreeing) said at [53]:

[I]t is commonplace that witnesses may recall or mention some details later which they had not raised before. The significance of the omission depends on all the circumstances. Here, it was not such a momentous point as to mean the jury could not reasonably accept the truthfulness of her account of the charged conduct. As was said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29], “in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence”.

92. It is of no significance that more detail was provided in the JIRT interview than had been told to the police on first contact or to the complainant’s father and mother. The interview was the first opportunity for the full detail to be disclosed by means of the questions asked. The failure to raise the events constituting counts 7 and 8 until much later is of some significance. Nevertheless, courts now well understand that victims of sexual assault all react differently in terms of when complaint is made, to whom it is made, the detail of the complaint, and how they behave subsequent to the assault. Section 293A of the Criminal Procedure Act 1986 (NSW) is testimony to that. The trial judge gave to the jury the direction that this section enables. In those circumstances, the delay in complaint about count 7 cannot, of itself, mean that the complaint is unreliable, nor that it was not open to the jury to accept the complainant’s evidence about it.

93. Similar considerations arise in relation to item X where the complainant returned to the applicant’s house and remained there with the applicant present for some time. Again, it needs to be said that victims of sexual assault do not always react in the same way to what has occurred. Here, the complainant provided an explanation, that he did not want NSO to know something had happened with the applicant, and he also thought that he had let the applicant down by disclosing it to CS. This issue was put to the jury by the applicant’s trial counsel as the first aspect of the complainant’s evidence that was said to be implausible.

124. In respect of the offence in count 7 her Honour found that the offence fell just in the middle of the range of objective seriousness for an offence of its type. In so finding, her Honour took into account the applicant's position as stepfather of the complainant's best friend, the age difference between the applicant and complainant, the offence occurring in the home in which the complainant was a guest staying overnight, and the applicant's knowledge of the complainant's cognitive impairment. The conduct involved was the applicant masturbating in close proximity to the complainant, sitting in a chair about 1.5 metres from the complainant, although facing away from the complainant, as both their chairs were facing in the same direction towards the television. The room was dark but the complainant could see what the applicant was doing because of the light coming from the laptop computer and the television. The act was carried out towards the complainant in the sense that it was done in his presence and the applicant intended the act of masturbation be seen by the complainant. The offending was opportunistic and not planned, and involved no force or threats or coercion beyond the offence being committed without the complainant's consent. The complainant did not know the duration of the offending conduct and her Honour made no finding beyond that. Her Honour found that this offence occurring after the previous offence was relevant only insofar as it could not be said to have occurred in isolation.

125. Her Honour had regard to a Victim Impact Statement prepared by the complainant's mother in consultation with the complainant. Her Honour observed that the Victim Impact Statement referred to conduct in respect of which the applicant had been found not guilty or in respect of which the jury were unable to reach verdicts, the latter involving the most serious conduct alleged. Her Honour was conscious that much of the Victim Impact Statement recounted harm from all of the alleged conduct for which the applicant had stood trial, and did not separate out the impact of the two offences before her Honour for sentence. Accepting submissions from counsel for the applicant on sentence, her Honour took into account that the two subject offences before her for sentence "must have had some negative impact" upon the complainant. Counsel for the applicant did not raise any issue about her Honour's approach to that matter.

126. Her Honour took into account that the applicant had facilitated the administration of justice during his trial by not taking issue with the fact that the complainant suffered from a cognitive impairment at the time of the offences, which obviated the need for expert evidence. Her Honour found that s 22A of the Crimes (Sentencing Procedure) Act was engaged and she would take it into account as part of the instinctive synthesis.

127. Her Honour took into account the applicant's personal circumstances. These are relied upon by the applicant, particularly in relation to ground 6.

128. The applicant was 39. His parents separated when he was 14 or 15 years old. He told report writers of emotional and sexual abuse at the hands of his mother as a child and that his mother was physically abusive to his brother and father. He reported that after his parents separated, his mother prevented him and his siblings from seeing their father. The applicant reported that his mother often threatened to commit suicide, which he found distressing. He said the family struggled financially. When he was 16 the applicant left school and moved to Queensland to live with his father. He had a history of working consistently throughout his life, until he ceased work in about September 2018 due to a diagnosis of functional neurological disorder. He was at the time of sentence unable to work and in receipt of a disability support pension due to the diagnosed disorder. He did not have an extensive criminal history. His prior offences arose from a single event in December 2015. Her Honour found that the prior offences five years earlier, which resulted in the imposition of s 9 bonds, had limited significance in sentencing the applicant, deprived him of leniency that may be afforded a first-time offender, but were given no more weight than that.

129. Her Honour noted the multiple symptoms of the applicant's chronic functional neurological disorder, including seizures and tremors and the need to use a walking stick to assist in his movement. Her Honour found that as a result of the physical manifestations of his disorder, the applicant would find a full time custodial sentence more onerous.

130. Her Honour took into account that since his diagnosis of functional neurological disorder in 2018, the applicant had experienced an onset of anxiety, particularly when in public, when he experienced anxiety symptoms, including panic attacks and an increase in tremors. As a result of the mental health manifestations of his functional neurological disorder and the applicant's social anxiety disorder, her Honour found that a full time custodial sentence would weigh more heavily on him and that as a consequence of his mental conditions he was "to a limited extent, a less suitable vehicle for general deterrence".

131. Her Honour found that the applicant's childhood and background constituted a background of social disadvantage and deprivation. Her Honour noted that although there was no evidence supporting a causal connection between that deprivation and the offences, the applicant's background afforded a modest reduction in his moral culpability. Her Honour found that the role of general deterrence was further ameliorated to a modest extent because of that factor, but having regard to the nature of the offending, still had a role to play.

132. Her Honour noted that because the applicant had conducted a trial he had not expressed any remorse. Her Honour found the applicant had moderate prospects of rehabilitation and risk of reoffending.

133. In terms of the principle of totality, her Honour found that the sentence for the aggravated sexual touching offence could not entirely comprehend the criminality in the aggravated sexual act offence and that there should be some degree of notional partial accumulation in the aggregate sentence, although "it should not be great".

134. In considering whether "no sentence other than imprisonment" was appropriate, for the purpose of s 5 of the Crimes (Sentencing Procedure) Act, her Honour said the following:

"Counsel for the offender acknowledged in respect of the aggravated sexual act offence that in the context of it not being an isolated act, that the s 5 threshold had been crossed in respect of that offence. I agree with this submission. Having considered each offence separately, and in each case the alternatives to imprisonment, and having balanced all the matters that I have now outlined in detail, I am satisfied that no sentence other than imprisonment is appropriate for each offence. I am of the view that the purposes of sentencing that I have identified leads to such a conclusion."

146. I will deal with her Honour's findings in respect of whether to order that the aggregate term of imprisonment be served by way of an Intensive Correction Order when I deal with ground 5.

Ground 4: the learned sentencing judge erred in determining the s 5 threshold had been crossed in relation to count 7

147. In respect of ground 4, counsel for the applicant relied on the statement by the Crown in submissions to the sentencing judge that if the applicant was being sentenced purely for the offence in count 7 then even despite the complainant’s cognitive impairment, a non-full-time custodial sentence would be within the range. However, counsel acknowledged the concession made by counsel for the applicant before her Honour, that the s 5 threshold was crossed in relation to the offence in count 7, on the basis that it was not an isolated act. Counsel submitted that the conduct the subject of count 7 was not such that the s 5 threshold was crossed, having regard to factors including that there was no physical contact with the complainant. Counsel further relied on the applicant's subjective case disclosing significant mitigating considerations. Counsel submitted that if the Court found that the sentence the applicant has partly served, at least to the extent of the non-parole period, should have been served differently, this Court should impose a Community Correction Order.

148. The Crown relied on the concession by counsel for the applicant on sentence that the s 5 threshold had been crossed for the offence in count 7, and submitted that pursuant to Zreika v R [2012] NSWCCA 44, the applicant should not be permitted to resile from that concession. The Crown submitted that this Court would not find that there had been a serious injustice nor that the concession ought plainly not to have been made. The Crown submitted that it was open to the sentencing judge to find that no sentence other than imprisonment was appropriate for that offence, given the circumstances of the age of the complainant, the age difference between the applicant and complainant, that the complainant suffered from a cognitive impairment and was the applicant’s stepson’s friend. The Crown relied on the statement of Hamill J in Sarhene v R [2022] NSWCCA 79 that when another offence for sentence requires imprisonment it may be appropriate to impose a concurrent short term of imprisonment.

Consideration

149. Section 5(1) Crimes (Sentencing Procedure) Act states:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

150. In Sarhene Hamill J said [36]:

“The decision under s 5(1) of the Crimes (Sentencing Procedure) Act is critically important. It reflects the long-standing and fundamental prescript that a sentence of imprisonment must only be imposed as a measure of last resort."

151. His Honour said at [38]:

“While there are crimes so grave that there is no real alternative but to impose a sentence of imprisonment, the decision under s 5 should include considerations of all matters relevant to sentence, not only the objective facts of the crime and the requirement for general deterrence."

152. Taking into account all the circumstances of the offence in count 7, including that it happened a relatively short time after the other offence, the complainant's age, cognitive impairment and his being a guest in the applicant's home, the distance between the applicant and the complainant when the act occurred, and the findings her Honour made about the modest amelioration in the applicant’s moral culpability and general deterrence, the applicant’s minimal prior record, and that the physical and mental symptoms of his disorder would make his experience of custody more onerous, I have come to the conclusion it was not open to her Honour to be satisfied that no sentence other than imprisonment was appropriate for the offence in count 7, despite the concession to that effect made by counsel for the offender in the sentence hearing.

153. I would uphold ground 4 as it related to count 7.

Ground 5: the learned sentencing judge erred in not ordering the sentence of imprisonment to be served by way of Intensive Correction Order

154. Her Honour sentenced the applicant in August 2022 before the High Court's decision in Stanley v Director of Public Prosecutions(NSW) [2023] HCA 3 and this Court's decision in Zheng v R [2023] NSWCCA 64.

155. Counsel for the applicant relied on the joint judgment in Stanley that the failure to consider the paramount consideration of community safety in s 66(1) of the Crimes (Sentencing Procedure) Act, by reference to the assessment required by s 66(2), constituted jurisdictional error. Counsel submitted that the sentencing judge sentenced the applicant without the benefit of the High Court's decision, and while her Honour expressly referred to the fact that community safety must be the paramount consideration in deciding whether to make an Intensive Correction Order, there was no reference within her Honour’s reasons to the risk of the applicant reoffending in a manner that may affect community safety. Counsel submitted that her Honour having found "I do not find that one method would more readily address the risk of reoffending than the other”, and having the choice of two options, her Honour chose the more onerous option. Counsel submitted that an Intensive Correction Order was the appropriate sentencing outcome.

156. The Crown submitted that despite not having the benefit of the judgment in Stanley, her Honour clearly had regard to the applicant's risk of reoffending in a manner that might affect community safety, as required by Stanley, when determining whether to impose an Intensive Correction Order.

157. The Crown referred to the High Court in the judgment of the plurality in Stanley at [76]:

“…there may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full time custody would be more likely to address reoffending. In those cases other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving a sentence by way of intensive correction in community is more likely to address reoffending.”

158. The Crown submitted that her Honour followed that approach and her finding that the appropriate sentence was one of full time detention was appropriate and reached upon proper consideration of all the relevant factors and not in error.

Consideration

159. In Zheng, Gleeson JA distilled the following from Stanley:

“[281] Five points emerge from the joint judgment in Stanley.

[282] First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: at [72], [75].

[283] Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: at [74].

[284] Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: at [75].

[285] Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of reoffending: at [74].

[286] Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: at [76].”

160. Judge Smith SC said the following in her remarks on sentence:

“Given the aggregate sentence is less than three years, and the submissions made on behalf of the offender, I will now turn to consideration of whether that aggregate term of imprisonment can be served by way of an intensive correction order.

When considering whether to make an intensive correction order, I have had careful regard to the recent decisions of the Court of Criminal Appeal and the Court of Appeal in relation to the imposition of intensive correction orders. I will not cite all of the relevant cases.

Under section 66(1), community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. The concept of community safety is not defined but clearly includes protection of the community from the offender. Considerations which promote the safety of the community are to be given special or paramount weight. In some instances, community safety might be better served by making an intensive correction order to reduce an offender's risk of reoffending through the provision of intensive rehabilitation and supervision in the community, rather than by committing an offender to prison.

Community safety is not just about incarceration. When considering community safety, the Court is to assess whether making the intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending (see: section 66(2)).

It involves making an assessment of how the offender's risk of reoffending would be impacted by reference to where and how the sentence was served. This assessment is one component of the consideration of community safety. I am required to determine the relevant question without any preconception in favour of incarceration as the only path to rehabilitation.

I must say that it is difficult in this case to make an assessment of whether making an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending, given, in particular, the evidence before me that the offender would not be eligible for a specialist sex offender treatment program if he was to receive a community based sentence and that the same applies in relation to if he is to serve a fulltime term of imprisonment.

Given the offender's denials, it is also not the situation that there is an existing process of rehabilitation in the community already underway that may be diminished, for example, by the offender serving a term of full-time imprisonment.

As I noted earlier, the psychologist observed that the offender presents with a number of factors considered in the literature as protective against future sexual offending, which goes some way towards mitigating his average likelihood of sexual offending. Amongst others, these included stable accommodation, a stable relationship, and a social connection to adults.

It was submitted on his behalf that the intensive correction order would enable him to maintain certain of these protective factors. Whilst this is true, as I have previously observed, the environment in which the current two offences occurred needs to be borne in mind.

Ultimately, I do not find that one method would more readily address the risk of reoffending than the other. Subsection (3) of section 66 makes it clear that the Court is also obliged to take into account in the course of considering whether to make an intensive correction order the other various purposes of sentencing under section 3A. Those other sentencing considerations may mean that the imposition of only a full-time sentence is warranted.

I have already highlighted the importance of punishment, denunciation, retribution, and even though it is reduced, the need for general deterrence in the current sentencing exercise.

Ultimately, I am not satisfied that these particular purposes of sentencing could be met by the position of an intensive correction order in this case.”

161. Her Honour considered all the factors thoroughly. When regard is had to all that her Honour said, it cannot be said that her Honour did not consider the applicant's risk of reoffending in a manner that may affect community safety. Her Honour’s finding was that the evidence was inconclusive. The plurality in Stanley recognised that that may occur, at [76]. Although another judge may have considered an ICO appropriate for the applicant, I am not satisfied there was any error demonstrated in the way her Honour approached her sentencing task.

162. I would not uphold ground 5.

Consideration of resentencing

163. Error having been established in respect of ground 4 and count 7, this Court is then required to consider s 6(3) of the Criminal Appeal Act 1912, which states:

(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

164. Having identified error in respect of ground 4, I will not deal with the manifest excess ground, but I will refer to the submissions on this ground in the context of consideration of re-sentencing.

165. Counsel for the applicant submitted that the aggregate sentence was excessive, having regard to the total criminality of the applicant's conduct and his significant subjective circumstances. I have referred to those above, as her Honour did in her remarks on sentence. Counsel focussed on the notional two month accumulation between the sentences indicated for each offence as contributing to the manifest excess of the aggregate sentence.

166. The Crown submitted that the sentence imposed on the applicant was not unreasonable or plainly unjust.

167. As noted above, counsel for the applicant submitted that this Court should make a Community Correction Order in lieu of imprisonment.

168. Section 8 of the Crimes (Sentencing Procedure) Act provides:

(1) Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender.

169. A Community Correction Order commences on the date on which it is made: s 86.

170. Consideration of resentencing in this case is complicated because the applicant has served a substantial part of his sentence. His non-parole period of one year three months expired on 4 November 2023, such that he is currently on parole, and the sentence will expire on 4 December 2024.

171. I am of the view that a Community Correction Order would not be an appropriate penalty for the offence in count 4, given its circumstances. An ICO may have been at first instance, but is not so now because commencement of an ICO cannot be backdated (s 71 Crimes (Sentencing Procedure) Act), and the applicant has served his non-parole period and a substantial portion of his sentence. To impose an ICO now would expose the applicant to the risk of revocation and would thereby be a more severe sentence.

172. I have referred above in [152] to the factors relevant to sentencing for the offence in count 7 and I will take them into account in resentencing him.

173. The relevant factors in relation to the offence in count 4 are the part of the complainant’s body touched, that it was with clippers, the age of the complainant, his cognitive impairment, the relative ages of and relationship between the applicant and the complainant, the applicant’s personal circumstances, including those which gave rise to his reduced moral culpability, the physical and mental symptoms of his disorder and his limited prior record.

174. The applicant’s affidavit tendered in the event of resentencing confirmed that his disorder caused him difficulty in custody. He also experienced long periods in his cell, in part due to COVID outbreaks.

175. I would grant leave to appeal, allow the appeal, quash the aggregate sentence imposed in the District Court and in lieu thereof impose the following sentences:

1. For the offence in count 4, a sentence of 18 months imprisonment with a non-parole period of 12 months, to date from 5 August 2022, such that the non-parole period expired on 4 August 2023 and the sentence expired on 4 February 2024.

2. For the offence in count 7, impose a Community Correction Order of 6 months duration, to commence on 31 May 2024 with the standard conditions, pursuant to s 88 of the Crimes (Sentencing Procedure) Act not to commit any offence, and to appear before the court if required to do so at any time during the term of the order.

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Amendments

08 April 2025 - Publication restriction lifted

Decision last updated: 08 April 2025