FP v R - [2012] NSWCCA 182

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: FP v R [2012] NSWCCA 182
Hearing dates: 31 January; 1 February 2012
Decision date: 23 August 2012
Before: McClellan CJ at CL at [1]
R A Hulme J at [2]
Schmidt J at [332]
Decision:
Conviction appeal:
1. Leave to appeal in respect of grounds 1 to 14 refused.
2. Leave to appeal in respect of ground 15 granted.
3. The appellant's conviction for the offence of conspiracy (count 42) quashed and a verdict of acquittal entered.
4. The appeal otherwise dismissed.
Sentence appeal:
1. Leave to appeal against sentence allowed.
2. Aggregate sentence of imprisonment for 9 years with non-parole period of 5 years quashed.
3. In lieu, sentenced to an aggregate term of imprisonment of 8 years 6 months with a non-parole period of 4 years 8 months to date from 29 April 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 28 December 2015.
4. Pursuant to s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the sentences that would have been imposed for each of the offences against ss 38 and 61J Crimes Act 1900 had separate sentences been imposed are the same as indicated by the District Court.

Catchwords: CRIMINAL LAW - appeal - objections or points not raised in court below - Criminal Appeal Rules, Rule 4- leave to appeal granted only where miscarriage or an irregularity going to the root of the trial
CRIMINAL LAW - appeal - conviction - misdirection by trial judge - multiple grounds of appeal - evidence not relevant to appellant where multiple accused - tendency and coincidence and context evidence - meaning of 'in company' element of aggravated sexual assault - physical presence during preparatory acts - knowledge of lack of consent - directions on criminal standard - jury note on 'beyond reasonable doubt' - insufficient summing-up - failure to direct on other charge the subject of a directed acquittal - leave to appeal refused
CRIMINAL LAW - appeal - conviction - guilty verdict not reasonably open to the jury - insufficient evidence to be satisfied of guilty beyond reasonable doubt
CRIMINAL LAW - appeal - sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39 - no error in application of standard non-parole period
CRIMINAL LAW - appeal - sentence - no failure to take into account subjective features
CRIMINAL LAW - appeal - sentence - unreasonable or plainly unjust - sentence not manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes (Administration of Sentences) Regulation 2008
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules
Cases Cited: ARS v R [2011] NSWCCA 266
Brown v Dunn (1893) 6 R 67\
Clough v R (1992) 28 NSWLR 396
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
Gilham v R [2012] NSWCCA 131
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
HML v R [2008] HCA 16; (2008) 235 CLR 334
Green v The Queen (1971) 126 CLR 28
House v The King [1936] HCA 40; (1936) 55 CLR 499
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
Lowndes v R [1999] HCA 29; 195 CLR 665
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Markou v R [2012] NSWCCA 64
Mendes v R [2012] NSWCCA 103
Mohan V The Queen [1967] 2 AC 187
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Picken v R; R v Picken [2007] NSWCCA 319
Phillips v R [2006] HCA 4; (2006) 225 CLR 303
R v Brougham (1986) 43 SASR 187
R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455
R v Crozier (Court of Criminal Appeal, 8 March 1996, unreported)
R v Edwards (1996) 90 A Crim R 510
R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452
R v Leoni [1999] NSWCCA 14
R v Murray (1987) 11 NSWLR 12
R v Phan [2001] NSWCCA 29; (2001) 53 NSWLR 480
R v Reeves (1992) 29 NSWLR 109
R v Southammavong; R v Sihavong [2003] NSWCCA 312
R v Stokes and Difford (1990) 51 A Crim R 25
R v Tripodina (1988) 35 A Crim R 183
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167
RWB v R; R v RWB [2010] NSWCCA 147; (2010) 202 A Crim R 209
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374
Tekely v R; Nagle v R [2007] NSWCCA 75
The Queen v Wilson (1986) 42 SASR 203
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Regina
FP
Representation: Counsel:
Mr M Ramage QC with Mr R Evans (Applicant)
Ms S Dowling (Respondent)
Solicitors:
McKells Solicitors
Solicitor for Public Prosecutions

File Number(s): 2009/80062
Publication restriction: Non-publication of anything likely to lead to identification of complainants
Decision under appeal

Date of Decision:

2011-05-06 00:00:00

Before:

Hock DCJ

File Number(s):

2009/80062

Judgment

McCLELLAN CJ at CL: I agree with R A Hulme J.

R A HULME J: The applicant, FP, was found guilty by a jury on 15 December 2010 of three counts of administering an intoxicating substance with the intention of enabling another person to commit an indictable offence, namely sexual assault (s 38(a) Crimes Act 1900); three counts of sexual assault in company (s 61J Crimes Act); and one count of conspiracy to commit a sexual assault (common law).

The maximum penalties prescribed by s 38 and s 61J are imprisonment for 25 years and 20 years respectively. The maximum penalty for the conspiracy offence is at large. A standard non-parole period is prescribed in respect of an offence against s 61J of 10 years.

On 6 May 2011 her Honour Judge Hock imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 9 years with a non-parole period of 5 years. The sentence was specified to commence on 29 April 2011.

Ultimately the applicant raised 15 grounds of appeal against conviction and 3 grounds of appeal against sentence. My reference to FP as the applicant is because each of the grounds requires leave to appeal.

Overview

At the beginning of her remarks on sentence the judge described the circumstances giving rise to the offences as "extraordinary". I respectfully agree with that description.

The applicant was tried jointly with Tony Golossian and AP. They were each charged but acquitted by direction of the trial judge in respect of an offence of obtaining property by false pretences. The offences for which the applicant was convicted were alleged to have been committed with either or both of those men and concerned a single complainant, MP. They related to events that occurred between April and June 2008.

The Crown also alleged that Golossian and AP committed similar offences against another complainant, MM, in 2001 through to 2005. There were 33 counts in the indictment concerned with the offences against MM (some in the alternative) and a further 8 counts concerned with the offences against MP (1 of which was in the alternative). The jury returned verdicts of guilty on all of the primary counts in respect of both men. Golossian was sentenced to a total term of imprisonment for 20 years with a non-parole period of 15 years and AP was sentenced to a total of 16 years with a non-parole period of 12 years.

The appellant was married to AP. Her brother, GK, was married to MP. AP was indirectly related by marriage to MP (he was a brother-in-law to her brother-in-law).

Tony Golossian was regarded by some people in the Greek community as a holy man and a man who could communicate with angels. He had a prayer room in the back of his house at Dulwich Hill. He purported to be able to assist people who had been the subject of black magic or curses by praying on them.

Both MM and MP were of Greek heritage and had strong religious beliefs. They claimed to be in fear of black magic, described as "the evil eye". They claimed to have been sexually assaulted in circumstances where Golossian was praying over them because of their need to be rid of a curse ("mayia") that they believed had befallen them which would result in their death, and/or the death of family members.

GK was also superstitious and believed that Golossian could help his wife by interceding with the supernatural. They had previously sought assistance from Golossian in 1999 in relation to their financial affairs which they believed were adversely affected by a curse.

The applicant was a woman of similar ethnic background to the complainants. She was also in fear of "the evil eye", particularly following her marriage to AP in 1993 and her contact with Golossian, who her husband professed was "a holy man", able to help others by praying to angels to remove curses and to create "white magic" to ward off "the evil eye".

Evidence review

It is necessary to review the evidence in some detail to put some of the grounds of appeal in context, particularly because the final ground involves a contention that the verdicts of the jury were unreasonable and not supported by the evidence.

The complainant and her husband were cursed

It was the Crown case that the three accused were parties to an elaborate agreement to frighten MP and GK into believing that they had been cursed and the only remedy was for MP to participate in "prayer sessions" with Golossian.

In late 2007, MP's father was very ill. He was in his late 80s, suffering from diabetes and dementia, and had broken a hip in a fall. MP was naturally concerned about him. In her sentencing remarks the trial judge said that as a result MP was "emotionally vulnerable".

In late January 2008, GK found a black object under the front door mat at their home. He showed it to MP. They did not know what it was. MP described it as a black round object wrapped in something like a plastic bag. MP rang her mother who told her to throw it away and go and talk to a priest. GK threw the object in the bin and the next Sunday the pair went to church and spoke to their priest (T97 - 99). The priest confirmed that the item should be thrown away and that they should have faith (T139). This object was subsequently referred to in the evidence as a "mayia".

GK also gave evidence that earlier on the day the object was found he had seen AP in the front yard. He thought that this was unusual and went out to speak with him. He said AP appeared shocked, claimed that he was in the area to quote on a job for a client, and asked to come in for a drink of water (T452). It was the Crown case that AP had been there for the purpose of leaving the object, a conclusion the jury might readily have come to.

Around this time there was a family barbecue at the home of GK's mother in Enfield, where AP and the applicant lived. GK received a text message during the course of this gathering. It said that a person had overheard a conversation at the recent wedding of MP's brother to the effect that a curse had been put on "us". It also said, "Did you see the state of her father, sucked in to the bitch". MP was aghast. At the time the message was received the applicant was at the table but AP was not. He returned a few minutes later (T100-101). The Crown suggested that he had sent the message.

There was a discussion about what to do. The applicant advised that help should be sought from Tony Golossian. That was done and arrangements were made to see Golossian. The next day, GK and MP went with AP to Golossian's home. They were taken through to his "prayer room". Golossian purported to pray to angels in a foreign language. He then informed those present that the angels had advised that there was a curse on MP and GK. In fact there was more than one curse and they needed to be broken. GK and MP believed him. Golossian said there was one at the front of GK and MP's house, the one that had already been found. He said that disposing of it had made it harder to break the curse but he would try (T102 - 104).

Golossian advised that if the curse was not broken, MP would die of cancer, GK would die from a fatal accident, and their children would slowly die as well. MP said she was "totally shattered". Golossian said, "This is just the beginning, look at your father." Both MP and GK were crying. MP and AP were asked to leave the room so that Golossian could speak with GK alone. When they were called back into the room, Golossian told them that GK had done something wrong to someone when he was young and to "get this away" he had to pay this person $50,000. If this was not done, GK would have to leave his family and go away and become a monk.

Golossian also told them that there were other "mayias", or curses, which had to be retrieved. One was at Rookwood cemetery and he gave detailed directions as to where it could be found. The other was in the front yard of GK and MP's home. After that was done, the only way to get rid of the curse, which was more so on MP, was to do a prayer over her whilst she was naked. Golossian purported to be reluctant to do this, saying that he did not do such things anymore. He suggested that someone else could do it but it would cost $20,000 to $25,000. They became hysterical and begged him to perform the prayer, and he ultimately agreed that he would do it for $3,000. Golossian told them that the prayer session had to be away from their home, near to water, and MP would have to be completely naked. MP said that she was horrified and scared but at the same time felt comfortable because he was a priest (T105 - 107).

GK's evidence included that when he was alone with Golossian in the prayer room, Golossian told him that the angels had said that he had sinned when he was very young. GK asked, "What have I done?" Golossian replied, "The angels said when you were very young you could have any woman in the world but not this one." If he did not want to have to leave his family and become a monk he would have to pay $50,000 to this woman. GK asked how he could explain this to MP and Golossian suggested he tell her that he had a gambling problem when he was young (T470 - 471). GK well knew what "sin" Golossian was talking about; he had sexually assaulted the applicant when she was about 6 or 7 years of age and he was 12 or 13 (T606 - 607). It was the Crown case that Golossian had derived this information not from "angels" but from the applicant.

The three left Golossian's home and went back to the applicant's home at Enfield. MP remained there while GK went off with AP to retrieve the "mayias". While they were away, MP spoke with the applicant. She asked her, "How could people do things like this?" The applicant told her that there were evil people out there and that she had been dealing with this for the last 15 years since she became married. GK and AP eventually returned with the mayias that they had found which were subsequently delivered to Golossian's home (T107).

I interpolate that there was other evidence suggesting that these two mayias were retrieved on different occasions but the point is of no significance.

GK gave evidence of going with AP to find the two "mayias" that Golossian had told them about. One was in the front yard of their home and the other at Rookwood cemetery. GK said that on both occasions it was AP who managed to find the item (T465; 474-476), suggestive, the Crown contended, of Golossian and AP being participants in an elaborate scheme.

The following day, after a phone call from Golossian, MP and GK went to his home. In the prayer room they were shown the two mayias which had been opened. One of them contained what appeared to MP to be her hair and her underwear which she identified by the colour and the brand. The other mayia contained small bones with fine writing on them. MP said that she recalled an occasion when the applicant had been to her home and had performed some ironing. All of MP's clothes were nearby in a clothes basket (T396). MP told her to desist from doing her ironing and she recalled that the applicant had walked to her bag and "it looked like she was putting something in the bag". Golossian told them that he would pray over the mayias to break the curse. As for the $50,000, he said that it had to be paid within 3 months and before the prayer session with MP. In relation to the prayer session, he told them that MP had to have finished her periods and had to be completely clean shaven. She was to bring along clippings of her hair, with underarm and pubic hair in separate envelopes (T108 - 109).

GK began to receive calls and messages on his phone. There was "some sort of a demon-like voice". The messages "were of naked - or penises and so forth". GK and MP had been told by Golossian and AP that they were to write anything unusual in a book, purportedly so that if anything evil came in, Golossian would pray over it and break the evil. The book was given to Golossian but copies were retained by GK and MP (Exhibit F). The notes included that there were calls from a private number on 24 March 2008 with someone whispering the words "Satan", "evil" and "prayer" and there was talk about death for GK and MP. There were subsequent calls and messages with sexual content, for example, "I am King Satan the Evil, I send to you this pussy and put under your pillow when you sleep and I will be with you and your wife when you dream" (T110 - 115). GK recalled that these calls and texts included the caller saying, "I am Evil" and "I am gunna fuck your wife" (T479).

The first prayer session (Counts 35 and 36)

GK contacted Golossian at a time when MP had finished menstruating. Golossian said he would speak to the angels who would decide when would be a good time for the prayer session. He subsequently gave GK instructions which he was to pass on to the applicant about booking a hotel room, buying orange juice, apple juice and some candles (T485).

The first prayer session took place on 5 April 2008. The applicant picked up MP. She told the applicant that she was afraid and nervous but the applicant reassured her that she should not be afraid; she should not fight it; "it is going to be like a dream, hundred per cent real, but it is not". She said that this was said to her "constantly". Golossian was picked up and they proceeded to the Marco Polo hotel at Summer Hill. Golossian told the applicant to go out and buy some food and some apple and orange juice, which she did. While she was gone, Golossian spoke with MP about what was to occur. He told her to be strong and not afraid and that it will feel like an angel will be entering her body; if she felt dizzy or unwell, that was a good thing. He also told her that "it's going to feel like it's 100 per cent real but it's not, it's just a dream" (T110; 119 - 120).

The applicant returned with the food and juice. The food was eaten and then Golossian prayed over the juice. Candles were lit. Golossian told the applicant that if she felt any pain during the prayer session she should go into the bathroom and say the Lord's Prayer 15 times, and continue to do so until the pain left her. He then put MP's hair clippings on a silver tray that she had also been asked to bring and burnt them. He gave MP the apple juice and she started to drink it but then put it down. He told her it did not matter if she did not drink all of that juice, but then gave her the orange juice and told her it was very important that she drink it all. MP drank all the orange juice and then felt light headed. She was then told to go into the bathroom and undress and put a towel around herself. MP said that by this time she was feeling dizzy. She stumbled when she went to the bathroom but undressed and returned with the towel around her. She was told to sit on the edge of the bed and to close her eyes. Golossian put a hand on her head and was praying. She said by now she was feeling very dizzy and very heavy (T120 - 122).

MP was guided to lie face-up on the bed. She was told to keep her eyes closed and to remove the towel. She said she then felt pricks, like pin needles, over her joints. She also felt some substance being rubbed on her. She felt movement of Golossian's hands and she could hear voices, one saying that it was evil and another saying it was an angel. They asked her who she would want to have sex with, either her neighbour, CP (another brother-in-law) or AP. She replied, "Neither, I want my husband [GK]." The evil voice became angry and demanded that she choose one of the three men and she said, "[AP]". MP said that the voices sounded the same; they had the same accent but just different pitches (T123 - 124).

At one point she opened her eyes and Golossian threatened to stop the prayer. He put a towel over her head and told her not to look. She felt a hand move towards her thighs, towards her vagina. Fingers then penetrated her vagina. This continued for a few minutes and she then felt Golossian on top of her and his penis penetrating her. She was crying and said, "Can you stop it hurts"; however he continued. He told her to pray to the angels that she not fall pregnant - that was said in an evil voice. He ejaculated in her vagina. She asked if it was over and whether she could lift the towel but he told her to leave it on. He said that in his normal voice. A few minutes later the towel was taken off her and she was asked to put it around her and to go and have a shower. The applicant assisted her into the bathroom where she had a shower. She said there was a discharge, clarified in her later complaint to her friend, HD, as a discharge from her vagina (T124 - 126; 1790).

The applicant then escorted MP out of the bathroom. She asked Golossian how it went, and he said that he believed that it went okay and that he would pray and let her know. MP said that she felt "really dizzy, heavy and just tired". The applicant then drove MP home, and dropped Golossian near his home along the way. MP said that she slept most of the way and when she arrived home she went straight to bed (T126). In her complaint to HD she said that she told the applicant that she believed that she was raped, but the applicant told her that there was no chance of that happening because the applicant had been in the room the whole time, aside from when she went to the bathroom to say the Lord's Prayer (T1790).

The next morning MP told GK what had happened. She said that she was reluctant and afraid but did not know who else to turn to. She recalled that what she said included, "If I am not pregnant by the end of the month I will be surprised". GK became very angry and rang the applicant. He subsequently told MP that the applicant had reassured him that she was in the room for the whole time and "that it was going to be the way it was, it felt like it was going to be a hundred percent real but it was just a dream". GK received a text message. MP read it and said that it was "something about the fact that they had taken me, something about having sex with me and I am them now and I am part of the evil". They were both frantic. GK rang Golossian who asked them to come to his house. When they got there, he told them that the evil was still there and that there would have to be another prayer session (T126 - 128).

Payment of $50,000 to the applicant

MP arranged a bank loan of $50,000 and when it was approved she transferred the money to GK's account. He then met with the applicant on 8 and 10 April 2008 when on each occasion he gave her $25,000 in cash. GK informed Golossian of each payment, but not who he was giving the money to. He told the applicant that he had won some money and wanted to help her out. He said that she was shocked and told him he did not have to but he insisted. He subsequently asked Golossian to speak with the angels and find out if he had given the money to the right person. Golossian agreed to do so. He subsequently told GK that everything was fine and that he had given the money to the right person (T499 - 502). In cross-examination GK agreed that the applicant had told him that she did not want the money but he had insisted that she take it (T733 - 736).

The second prayer session (Counts 37 and 38)

The instructions MP received in relation to the second prayer session were the same as for the first; she had to be clean and not be menstruating. She was also told to bring candles, some cotton balls and some material for a blindfold. Golossian had told GK that MP must not open her eyes like she did at the first prayer session or else the evil would burn her eyes (T504). MP was also told to bring what she called her "work bag" (later clarified as being a handbag (T286)) so that it could be blessed or prayed upon. On this occasion she was picked up by the applicant at about 9.00am on a weekday, she thought probably a Tuesday. The conversation in the car was along the same lines as before; she was told not to be afraid, to be brave, and that it would feel real but it would be a dream. After Golossian was picked up they proceeded to a different venue, the Ashfield Motor Inn. The applicant collected the keys from the reception and they went to the room (T140 - 142).

Golossian instructed the applicant to go and get food and drink. Golossian and MP spoke while the applicant was gone and MP said that he had reassured her. The applicant returned after about 20 or 30 minutes with orange juice and takeaway food. MP was not hungry but she was told to drink the orange juice after Golossian had prayed on it. She said the lid was off the container and that he was making hand movements over it, swilling it and blowing over it. MP struggled to drink all the juice and when she was half way through it, Golossian came over and took the bottle, swilled it around and then told her to drink it all. The applicant was in the room when this was happening (T143 - 144).

MP said that she felt quite dizzy and heavy but not as bad as the first time. She went to the bathroom, undressed and came out with a towel around her. Golossian put the cotton balls, or pads, over her eyes, tied the material she had brought so as to blindfold her and then started to pray. MP said that she was aware of the applicant being in the room up until she was blindfolded. She was guided to lay down on the bed, similar to the first occasion. She felt fingers entering her vagina. She tried to ask who it was - "Is that you Tony?" She asked if the applicant was there, or if anyone was there, but there was no response. The fingers were then removed and she was told to move onto her side. She then felt a penis in her mouth. She felt sick and it was removed. He then told her, using the evil voice, to take his penis in her mouth. The penis was again forced into her mouth but she started gagging and it was removed. She was told by the evil voice to stay where she was on the bed. Next, Golossian told her to get up and that the applicant would help her go to the shower and clean herself (T144 - 146).

The applicant helped MP to take a shower with the blindfold still on. She then got dressed and the applicant escorted her back to the room. She said that she felt very heavy and dizzy and needed help to walk. Golossian then removed the blindfold. Once again, MP asked him how it went and he replied that he thought it went okay but would pray and ask the angels. MP was then taken home by the applicant (T148).

MP said that she was concerned as to why she was required to take her bag to this prayer session. She checked its contents and found that a picture of GK, some of her business cards and a deposit slip from her cheque book were missing. She told GK about this and he rang Golossian who informed him that it was the evil in the room that did this (T149 - 150).

GK gave evidence that when MP arrived home she complained of being in pain, was tired and dizzy and "she felt again that she was ... sexually assaulted or raped, she was penetrated, she felt someone on top of her and I think for the second prayer session she said she felt holding a penis". He told her that it was probably a dream because that is what Golossian and the applicant had told him after the first prayer session (T505).

Other events

MP said that she had a mobile phone and that she had been provided with another one by her employer. She recalled receiving a text message which said something about doing sexual acts with AP. She deleted it, as she did other messages that "petrified" her. One evening when GK was not home she received a message saying the evil will enter her home and she was to be ready for him. She was "horrified and petrified". She damaged the SIM card for her personal phone so that she could not receive any more messages.

On another occasion, GK was told by the angel that MP must be available to take a call at a nominated time. The call came in on GK's phone and MP took it. It was the evil, not the angel. She explained that in these calls, the caller announced whether it was either the evil or the angel and there was a difference in the tone of voice. In this particular call there was a reference to MP not having done "the test". There had been sexual references and mention of a "test" in previous messages she had received. In this particular call, after having been asked why she had not done "the test", the voice then spoke of harm to the family, to MP, her children and her father. Arrangements were made for a third prayer session because, as MP said she was told, she had broken the promise and had not done "the test" (T151 - 153).

Third prayer session (Counts 39 and 41)

The third prayer session was on 1 May 2008, again at the Ashfield Motor Inn. MP was required to prepare herself and bring the same materials as before. The applicant picked her up and there was a similar conversation on the way in the car. The applicant told her that she should not be afraid, be strong and she also said that she (the applicant) had been through this before. MP said that she felt comforted by that. After Golossian was picked up they proceeded to the hotel, stopping along the way at a service station where the applicant purchased orange juice (T155 - 156).

Similar events as before occurred once they were in the hotel room. The applicant was sent out by Golossian to buy food. When she returned, Golossian prayed over the orange juice and told MP to drink it all. She said that she then felt dizzy. She was then sent to the bathroom to disrobe and returned. She was blindfolded by Golossian whilst the applicant was still in the room. On this occasion she was told that she would hear noises, a door opening and closing and footsteps. She was told not to worry and that this was a normal thing to happen (T157 - 158).

MP was guided to lie down on the bed. She was asked whether she was feeling dizzy or lightheaded and she replied that it was not as bad as previously. The towel was removed. She felt hand movements and the pricking of a needle through her joints. She then felt a body on top of her. She was told by the evil voice to rub her hands up against the hands of the person who was on top of her. She felt the penis of this man penetrating her. She was crying and sobbing. The evil voice told her to grab the arms of the person and act as if she was enjoying it. She described features of the person as different to what she had felt on the previous occasions (that is, it was not Golossian). The man removed his penis and she heard him masturbating until he ejaculated on her hand. She heard the sound of a phone ticking, "like a text". Golossian then said in his normal voice, "wait, I'll wipe this off you" and she felt her hand being wiped (T158 - 163).

MP was told to get up, put the towel around herself and go to the bathroom. She said that the applicant was in the room, and the applicant was also sobbing and asking whether her eldest daughter was alright. Golossian told her that she was. The applicant then helped MP into the shower before they returned to the room and there was similar conversation as before about how it went. The applicant rang AP. It was arranged that the applicant would drop MP at the Westfield shopping centre at Burwood where GK would pick her up, whilst AP would come and take Golossian home. As the applicant drove MP away from the hotel, within two to five minutes she saw AP driving in the opposite direction towards the hotel (T164 - 165). It was the Crown case that he was so near to the motel because he had just been there, sexually assaulting MP.

GK picked MP up at the shopping centre and took her home. They had the usual conversation about how it went and she told him that Golossian would speak to the angels to find out. She also told him that someone had ejaculated in her hand. GK became upset because MP was not supposed to talk about what happened in the prayer sessions; he was afraid the evil would come back harder (T166). GK's evidence was that she said, "I've been raped again, felt someone on top of me" but once again GK thought that it was a dream (T515).

Events following the third prayer session

GK was instructed to go and buy MP another mobile phone because she had destroyed her own phone, or at least its SIM card, so as to avoid the disturbing communications she had been receiving. The new phone was given to Golossian to bless before she started to use it (T170).

A fourth prayer session was proposed; MP thought this might have been for 5 June 2008. She was told that she would first have to do "the test" and it had to be something sexual with AP. She had been told this in an earlier text message as well. After she received the new phone she started to receive calls and texts. She was scared about the prospect of "the test". She said that she could not talk to GK about it because he was so deep into the belief that he would not listen; he was scared for their safety. MP said that she still had a little bit of belief that all of this was true but she wondered how it was going to stop. She could not tell anyone. She decided to buy a tape recorder to record all the messages in the hope that this would give her the courage to tell someone (T167 - 170).

At this point in her evidence, MP said that it had been necessary to beg Golossian to perform each prayer session and this was always in the presence of the applicant and AP. Further, Golossian said that he would not do them on his own without the applicant being present. MP said that she and GK thus had to ask the applicant to come along. On the occasion of one of these conversations, the applicant told them that she had a dream that MP's father had died and that it was all MP's fault because "I didn't do this prayer, this fourth prayer, and that I should get out of the church, you know, he stood up from the coffin and said 'get out, get out, it's all her fault' and Tony's response was that it was because I didn't do, if I am not going to do the prayer that is what will happen" (T172 - 173). In cross-examination she said that the applicant had said that in the dream her father blamed MP for him being dead because she did not do the test, and that Golossian added that it was a message from the angels saying that she must do the test (T435-6).

MP said that she purchased the tape recorder and recorded some calls on her phone (T173). These recordings were before the jury (Exhibit B) and strongly supported her account in a broad sense, in particular as to the following events.

MP said that she built up the courage to talk to someone just before the fourth prayer session was due to be held. She spoke briefly with her friend, HD, at a family gathering and arranged to meet her the following day, when she told her at some length about what had been happening and played the tape recordings to her. This complaint was largely, although not completely, consistent with the evidence MP gave (T1785 - 1794). Any inconsistencies were readily capable of being regarded by the jury as minor, particularly having regard to the fact that the conversation occurred on 2 June 2008 and HD did not make her statement until 27 August 2008. One example is that there is mention of insistence that MP drink all of the apple juice as opposed to the orange juice; another is that whilst there was mention of digital penetration in the second prayer session there was no mention of a penis penetrating her mouth.

After her meeting with HD, MP went to Wetherill Park police station and spoke with a police officer. She was uncomfortable with the outcome and returned the following day. After spending quite some time speaking with a detective, she returned home where her husband told her that he had been trying to call her. She did not tell him where she had been, apparently on the instructions of the detective. GK told her that the evil or the angel had been calling him because they could not contact her. At his suggestion she called Golossian but the evil answered and said, "Why did you lie to us, you didn't do the test?" She made an excuse and he recommended that she ring AP to arrange a time for the test. She said she had mixed feelings and was scared about doing this but had been reassured that the police were going to help her. There followed a number of communications with AP concerned with setting a time and date for "the test". Ultimately she had to put it back a day in order to allow time for the police to arrange a listening device (T175 - 182).

The "test" was to occur on 4 June 2008 at AP's home. MP drove there but then parked and waited in the car as "the evil" had instructed her. She received a telephone call and a recording of the conversation was before the jury. The caller said that he was the "red evil" and told her she was "now in the dream test". He related a series of instructions as to what she was to do when she was inside the house with AP. In short, she was told to say certain things that would put him into a trance and she was then to engage in sexual intercourse with him. She was threatened that she must do exactly as she was told "or we will take your father and your daughter". At the conclusion of the call she was instructed by police to knock on the door and that when AP appeared, officers would intervene to arrest him. That is what transpired (Exhibit C).

At 1.40pm on 4 June 2008, the applicant sent a text to her husband telling him that he had better be on standby for the children, presumably a reference to picking them up from school. The applicant's evidence was that she was in the city that day at a market research exercise. However, at 3.35pm she sent another text to him saying, "I'm feeding the kids, don't know what time coming until I get call" (T1959).

I do not intend to deal with the evidence of Tony Golossian or AP in any detail but it is appropriate to mention at this point that the latter admitted that he made the calls to MP, including the one recorded by the police, but said that he was "messing with her mind" (T2534). He also admitted having made previous calls and texts, and his explanation was to the effect that he was acting at the behest of GK who wanted to scare MP into becoming a more submissive wife.

In cross-examination, GK said that it was he who gave instructions to the applicant as to what she was to do in relation to the prayer sessions, including that she was to purchase the juice and that if she did not feel well she was to go to the bathroom, face the mirror and say the Lord's Prayer. GK said that he was relaying these instructions from calls and text messages he received from the angels. He would ring Golossian and let him know and Golossian would say, "You know if the angels said that, you do that" (T721 - 727; 752)

Administration of a drug

There was no direct evidence that a drug was administered to MP at any of the prayer sessions. On each occasion, juice was purchased by the applicant and given to Golossian. The applicant maintained that the bottles were not opened before she gave them to him. The Crown queried this but was in no position to positively assert which of the two put the drug in the juice.

The fact that a drug was put in the juice was sought to be proved by the following circumstantial evidence. The general practitioner who had treated MP for some 10 years said that he had never prescribed Stilnox or Zolpidem for her, or any member of her family. MP said she had not taken any sleeping medication in 2008. Hair samples taken from her on 17 July 2008 were analysed at the Victorian Institute of Forensic Medicine by an expert in forensic toxicology, Voula Staikos, who gave evidence that Zolpidem was detected. With an assumption made that hair grows at the rate of one centimetre per month, it was determined that there was a significant amount found in hair that had grown in the period of about 17 March to 17 May and trace amounts in hair that had grown approximately 2 months before and 2 months after that period. The peak readings were, of course, in the period when the three prayer sessions had occurred.

There was evidence that a forensic chemist had advised the police that Stilnox could be dissolved quickly in orange juice without any change in its appearance. Dr William Allender from the Clinical Forensic Medical Unit, who had expertise in the effects of drugs and poisons, gave unchallenged evidence that Zolpidem is eliminated from the body in an average of about 2.5 hours but is remains detectable in the hair. He said that a person who has taken Zolpidem would have a compromised ability to repel any unwanted attention and memory is decreased in respect of events which occur whilst under its effect. MP said that after drinking the juice she felt dizzy and lightheaded. Her memory of events in the subsequent hours was compromised. Although she perceived she was being sexually assaulted, her capacity to repel the attacker was impaired.

Telephone evidence

There was a considerable amount of evidence in the trial about the various phones that were used by the accused, and by GK and MP. It is unnecessary to review this body of evidence as it primarily served, on the Crown case, to inculpate Golossian and AP rather than the applicant by identifying the possible origin of the calls and messages that GK and MP received.

The defence cases

It is also unnecessary to review the evidence given by each accused in the trial. Where necessary, I refer in more detail to aspects of the applicant's evidence below in the context of ground 15. A brief overview of the respective cases will suffice for present purposes.

Golossian denied that he had administered any intoxicating substance or had sexual intercourse with the complainant. AP also denied having sexual intercourse at the third "prayer session".

The applicant denied that she was part of an agreement to administer anything to MP and said that during each of the "prayer sessions" she was present in the room, but had gone to the bathroom to say the Lord's Prayer a number of times when Golossian was praying over the complainant. She never saw or heard anything to suggest that a sexual assault had occurred. Otherwise, she claimed that she did what she was told by Golossian and GK. She denied knowledge of any plan for MP to be sexually assaulted in any of the "prayer sessions" or in "the test". Evidence was called as to the applicant's good character.

The hotel/motel rooms

It is appropriate to say something about the nature of the accommodation at the Marco Polo hotel and the Ashfield Motor Inn. It is relevant to the submissions to which I will refer later concerning the "in company" element and the possibility that the applicant may have been in the bathroom at the time sexual assaults occurred. Photographs of rooms at each place were before the jury (Exhibits M and N). It is clear that the rooms were modest in both size and furnishings in relatively inexpensive establishments. They were hardly suites in a five star hotel.

The requirement for leave to appeal

There were 13 grounds of appeal initially notified in respect of conviction but after leave was granted during the course of the hearing they were expanded to 15 and re-numbered. They each require leave, in the most part because they raise points not taken at trial: Criminal Appeal Rules, rule 4. Where that rule does not apply, the requirement for leave arises under s 5(1)(b) of the Criminal Appeal Act 1912 because questions of fact are involved.

Rule 4

Before turning to the grounds of appeal it is appropriate to say something about rule 4. There are a great many cases in this Court in which authoritative statements as to the purpose and effect of the rule may be found. There has been constant criticism of points being raised on appeal, often unmeritorious, which were not raised at trial. A useful recent summary was provided by the Chief Justice in ARS v R [2011] NSWCCA 266:

[146] Because the Crown submitted that r 4 applied in relation to these grounds and the subsequent grounds in which it was submitted there was no evidence fit to go to the jury or that there was latent duplicity, it is convenient at this stage to deal with the scope of r 4. Rule 4 provides as follows:

"No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

[147] The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]):

"There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted ... "

[148] Subsequent cases have established that the following matters are important in considering the operation of r 4:

The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].

An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].

In the present case the applicant was represented at trial by counsel who appeared in this Court as junior to Mr Ramage QC. Somewhat surprisingly, the written submissions on behalf of the applicant made no mention of r 4 at all; it was only acknowledged by Mr Ramage at the outset of the hearing after it had been seen that the obvious point was being taken in the written submissions filed for the respondent.

Another surprising point is that, notwithstanding junior counsel on the application was counsel for the applicant at trial, no attempt was made to explain why the many points now sought to be argued were not raised by him before the trial judge. He is certainly not an inexperienced barrister and his conduct of the case at trial does not suggest that incompetence can be an explanation.

As will be seen, the proposed grounds of appeal contain many contentions as to the conduct of the Crown Prosecutor and as to the legal correctness of the summing up by the trial judge. This may well be an indication that counsel "saw no injustice or error in what was done": Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [12], referring to R v Tripodina (1988) 35 A Crim R 183 at 191. A failure to take objections or request redirections to matters in the summing up is "usually a reasonably reliable indicator of its fairness and adequacy": Tekely v R; Nagle v R [2007] NSWCCA 75 at [89], drawing from R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at 354. I would add that the lack of objection to cross-examination of an accused by the Crown Prosecutor, or to the content of the Crown Prosecutor's closing address, would also tend to suggest that there was not the unfairness which is now contended in this Court.

The critical issue for the applicant to establish, as she bears the onus of showing that leave should be granted, is that there has been a miscarriage of justice in that she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R; R v Picken [2007] NSWCCA 319 at [21]. Another formulation of the test is that "leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings": R v Tripodina, supra, at 195.

Ground 1: The trial miscarried and the Appellant did not receive a fair trial as a result of errors in the conduct of the trial and directions given to the jury as more particularly set out in the individual grounds hereunder.

This ground adds nothing to the applicant's case and nothing more needs to be said about it.

Ground 2: The trial judge erred in her directions to the jury as to the evidence relevant only against the Appellant

In relation to this ground it is appropriate to reiterate that the applicant was only charged with offences alleged to have been committed against MP, whereas her co-accused were charged as well with offences alleged to have been committed against MM. The latter offences were said to have occurred between 2001 and 2005 while the offences against MP were alleged to have taken place in the first half of 2008. The Crown led evidence of other sexual activity involving MM as context evidence. It also relied upon coincidence evidence, that is, that the offences committed against each complainant bore certain remarkable similarities. In relation to the individual complainants, the Crown also asserted that the evidence established that Golossian and AP had a tendency to have a sexual interest in them and that they acted upon it by having sexual intercourse with them. When speaking of the coincidence evidence, the trial judge directed the jury that "the evidence relating to the charges or counts in respect of one complainant may be relevant in relation to the other complainant. This is different from tendency where, as I say, you are restricted to the counts involving just the one complainant" (SU 137.3).

In support of this ground, it was submitted that the trial judge failed to distinguish between the evidence admissible in the case concerning the applicant and the evidence that was only relevant to, and admissible against, the co-accused. It was acknowledged that the judge directed the jury that there were three separate trials and that it was necessary for separate consideration to be given to the case concerning each accused. She explained that the reason for this was that there was some evidence available to be considered in the case of one accused that was not available in relation to another accused. She cited the example of the appellant's police interview being only evidence in her case. Similarly, the police interview of Golossian was only evidence in the case concerning him. Another example cited was an exhibit that related to offences concerning the complainant MM, the appellant not facing any charges concerning her (SU 8-9). After citing these items of evidence as examples, her Honour then said:

Generally most of the evidence is available for you to consider in the case of whichever accused you are considering at the time (SU 9.5).

A little later in her summing up (SU 14-15) her Honour gave directions to the jury to separately consider of each of the multiple counts that each accused faced. These directions were in a conventional form. They included:

You must look at the evidence that relates to each of the specific charges and also what evidence, if any, you find in support and then make separate and distinct decisions about whether the accused whose case you are then considering is guilty or not guilty of that count.

A number of issues were raised by counsel for the co-accused at the next break in the summing up (SU 25 - 28), and subsequently, but there was no complaint in respect of these directions.

Nine examples were cited in the applicant's written submissions which were said to constitute a failure of the judge to "distinguish or sufficiently distinguish" the evidence admissible against her with that which was only admissible against the co-accused, despite what her Honour had said earlier, as noted above (at [76]-[77]).

It emerged in oral submissions that the primary concern was that, in considering the applicant's case, the jury may have taken into account evidence concerning the counts relating to MM. It was accepted that there had been no application by the applicant for a separate trial relating to this concern. Further, and as counsel for the respondent pointed out (1.2.12 at T1.38), it is somewhat ironic that the submission was made in this Court whereas in the court below, counsel for the applicant sought in his closing address to rely upon the case concerning MM in an endeavour to take forensic advantage of certain similarities and dissimilarities. For example, he submitted:

It is necessary for you, members of the jury, to put the case that's alleged against [FP] in the context of what happened prior to 2008, and that of course very much turns on what events occurred between 2001 and 2005, involving her husband [AP] and Tony Golossian in relation to [MM], and to perhaps a lesser extent, [MM's partner at the time]. (T3138.30)

It was submitted that the need for the judge to carefully direct the jury as to the evidence that was available for consideration in the case concerning the applicant was heightened by the manner in which the Crown Prosecutor had addressed the jury (bearing in mind the irony I have just mentioned). It was contended that "the Crown wound the cases together" (31.1.12 at T2.4). Counsel for the applicant subsequently provided a list of transcript references for the Crown's closing address which were said to support a submission that the prosecutor had "intermingled the inadmissible evidence regarding [MM] with admissible evidence involving [MP]". Counsel for the respondent, with leave, provided further written submissions concerning these references.

I have carefully reviewed each of the references upon which the applicant relies. I am unable to accept that they support the applicant's submission. It is unnecessary to deal with this in detail as the submission is by way of background to the ground under consideration.

The Crown Prosecutor's closing address was structured so as to deal with the case concerning the offences against MM first. This occupies about 50 pages of transcript (T3049 - 3102). She then turned to deal with the offences concerning MP (T3102 - 3135). She then concluded with some very brief arguments addressing the similarities in the evidence of the two complainants and countering any suggestion that there had been joint concoction between them (T3135 - 3136).

As the prosecutor reviewed the evidence of one complainant, or the other, she occasionally reminded the jury of the similarities between their accounts, or the accounts of the complainants' partners. This was a legitimate thing to do because the Crown case concerning Golossian and AP relied upon coincidence evidence. Counsel for the respondent correctly pointed out in her further written submissions that the Crown Prosecutor had at no stage made any suggestion that the similarities in the evidence concerning each complainant had anything to do with the applicant. The arguments put to the jury were confined to the other accused. For example, in the course of reviewing the evidence of MP, the prosecutor submitted:

Tony [Golossian] said "It's going to feel a hundred per cent real but it's not, it's just a dream". And you will compare that, I suggest, to what [MM] was told by Tony Golossian for her prayer session. Very similar thing, and that is no mere coincidence, members of the jury. (T3112.35)

It was MP's evidence that before the first prayer session commenced she was commanded to go to the bathroom and take off all of her clothing and come back into the room with just a towel around her (T121). Golossian disputed this and asserted that the decision to remove all of her clothing was the complainant's (T2116). The prosecutor submitted to the jury:

Do you really accept that [MP] would go in of her own volition, change from her clothing into a towel, not even leaving a bra or underpants on, nothing on for fear of some oil getting on her clothing and come out into the room and say "Don't worry, I'm like your daughter" or "I'm like your son". I submit you wouldn't accept that she would have done that. She changed out of her clothing and into a towel because she had to, just like [MM]. (T3113.6)

Another example relates to the account MP gave of a telephone call that she received from "the red evil" on 4 June 2008, just as she was about to attend the home of AP for "the test". The caller instructed her how to encourage him to have sex with her. She was told what to say and what to do in considerable detail. AP conceded that he had made the call but claimed that he was simply "messing with her mind" (T2534.22). The conversation was legally recorded by police. The instructions included:

... He will not agree [to have sex] and he will try to stop you ... No matter what he says, keep sucking ... The only way to make him agree is to say, 'if you do not fuck me, I will run outside and scream' ... suck him and pinch his nipple ... (Exhibit C. AB 337-338)

In referring to this aspect of MP's account, the Crown Prosecutor reminded the jury of a similar aspect in MM's account. MM had received instructions to have sex with AP. They included:

He said that when I answered the door to [AP] I was to say to him, 'I want you to have sex with me'. He said to me that [AP] will say to me, 'No I don't want to.' He then said to me that I had to say to [AP] the exact words 'If you don't I will scream, the neighbours will hear me and I will cause trouble for you.' ... And he said that while I performed oral sex on [AP] I was to pinch his nipples as this is something that he liked. (T845.36 - 846.6)

There was nothing wrong in each of these cases with the Crown Prosecutor pausing to remind the jury of similarities in the accounts given by the other complainant. As I have said, each of the passages to which the applicant referred related to evidence that concerned Golossian or AP. There was no invitation, or suggestion, that inadmissible evidence should be used in the jury's consideration of the case concerning the applicant.

I turn to the passages in the trial judge's summing up that were said to support the proposition that she did not "distinguish or sufficiently distinguish the evidence properly admissible against the [applicant] and that of her co-accused". The first example was her Honour's statement in the context of directing the jury as to the elements of the conspiracy offence. She briefly reminded the jury of the evidence upon which the Crown relied in order to prove the existence of the relevant agreement. She concluded this by saying:

"And the Crown also relies on the phone records and text messages, SMS messages, between the accused, all three accused on 4 June and earlier" (SU 64).

It was submitted that this invited the jury to consider all of the telephone call/text evidence, regardless whether it was relevant and admissible in relation to the alleged conspiracy.

The vast majority of the telephone call/text evidence was not inculpatory of the applicant. The Crown did not suggest that she had on any occasion pretended to be "the evil" or "the angel"; that was only asserted in respect of Golossian and AP. There were call charge records for various phones which showed contact between the applicant and her co-accused. Such contact between the persons alleged to be co-conspirators was relevant but, aside from text messages sent on the day the alleged conspiracy was to be played out, the content of any communications could not possibly have been regarded by the jury as indicating anything as to whether she was a party to it.

The argument in this Court, but not the subject of complaint below, was that the above statement by the trial judge invited the jury to consider evidence that did not relate to the conspiracy, but related to the preceding "prayer sessions" and ancillary events concerning MP and also evidence that related to events concerning MM. Having reviewed the summing up as a whole I am not left with any doubt that the jury would have well understood that material concerning MM had nothing to do with the applicant. It was not explained how the jury could possibly have regarded telephone communications relating to the earlier prayer sessions as having any bearing upon the question of whether the applicant was a party to the conspiracy. Trial counsel obviously did not have any of the concerns now raised on behalf of the applicant.

Other examples cited in the applicant's written submissions may be dealt with more briefly. Reference was made to her Honour's summing up concerning the counts alleging offences against MM. It was submitted that "[a]t no stage did she direct the jury that none of that evidence ... was admissible on any basis against the [applicant]" (AWS 1.1.4 (ii)). I fail to see how the jury could have regarded such evidence as bearing upon the case concerning the applicant. She was not charged with any of those offences and there was no suggestion that she was in any way involved in any of those incidents. The fact that counsel for the applicant was not moved by any concern about the possible misuse of the evidence to ask the judge to give any further direction about it confirms my view.

The next example misconceives the structure of the summing up. After her Honour had dealt with the elements of each of the offences and briefly summarised the parties' cases in respect of each, she announced that she had completed that subject and was moving "to some general matters" (SU 121). She introduced the first of those matters by saying:

You would also recall that there was evidence of other acts led by the Crown, other acts of alleged misconduct by each of the accused, that is Mr Golossian and [AP], towards [MM]. This does not apply, obviously, to [MP], what I am about to say. (SU 121.7)

Her Honour proceeded to identify the evidence of other sexual activity and gave directions about its relevance and warned against misuse in conventional terms (SU 121 - 125). She then moved to the next of the "general matters":

The next direction that I must give you and this applies to both [MM] and [MP] is that in respect of the allegations in respect of either of the complainants you would be aware that the Crown case relies substantially on the evidence of each individual complainant alone. (SU 125.6)

Her Honour proceeded to give a standard Murray direction: R v Murray (1987) 11 NSWLR 12 at 19 per Lee J. It included that in considering each complainant's evidence the jury should look to see if it was supported by other evidence. She referred to the Crown case that MM's account was supported by certain evidence which she identified. This was followed by:

Similarly the Crown says the evidence of [MP] is supported by the complaints that she made first to her husband and to [HD] and the Crown says that both complainants' evidence is supported by tendency evidence that I will take you to in a moment and coincidence evidence. (SU 127.1)

On behalf of the applicant it was submitted that this "conflated the case" (AWS 1.1.4 (iii)). The subject of complaint evidence is dealt with next. The subject of tendency evidence is dealt with shortly. Dealing with the present point, I do not accept that there was any inappropriate conflation.

Next it was submitted that when referring to the evidence of complaint by MP, in the context of which her Honour said "this applies obviously particularly to the accused Mr Golossian", a direction should have been given that the evidence of complaint was not admissible against the applicant (AWS 1.1.4(iv)). That is not correct. Given the necessity of the Crown proving in the case concerning her that the complainant had been sexually assaulted, complaint evidence was clearly admissible.

The next example cited in the applicant's written submissions is that her Honour said, "Here I will remind you that both complainants told you that they were instructed not to tell anyone and if they did that the curse would get worse or words to that effect" (SU 128). This was said in the context of the directions on complaint. It immediately followed the conventional component of such directions:

If on the other hand the complainant has not acted in a way you would have expected someone to act after being sexually assaulted as described then that may indicate that the allegations are false. But remember there may be good reasons why a complainant does not raise the allegation immediately and that a failure to do so does not mean the allegation is false or the allegations are false. (SU 128.6)

Seen in its correct context, there was nothing wrong with her Honour referring to both complainants' evidence that they were threatened with reprisals if they complained.

The next example is another case of taking a statement by the trial judge out of context. Reference was made to her Honour saying that the Crown case was that each accused had a tendency to have a sexual interest in each of the complainants and to act on that sexual interest. The context in which this was said was:

Dealing now with the counts in the indictment, you are obviously well aware that you have a number of counts or charges in respect of each complainant. The Crown says that each accused has a tendency to have a sexual interest in each of the complainants, that is [MM] or [MP] and to act on that sexual interest by having sexual intercourse with her. By proving the accused whose case you are considering had this sexual interest in that particular complainant, this only applies to the particular complainant whose case you are considering and that he was willing to act on it, the Crown argues you will find it more likely that he committed the other count or counts in the indictment. This obviously applies only to Mr Golossian and [AP], it does not involve [FP]. (SU 132) (Emphasis added)

Her Honour's removal of the applicant from consideration in relation to this topic could not have been clearer.

Although it was not referred to in the applicant's written submissions, it is worth mentioning at this point that the next topic dealt with by the trial judge was coincidence evidence. The Crown relied upon the similarities in the way each complainant said that the offences were committed. Her Honour prefaced her directions on this topic by directing:

Again this only involves Mr Golossian and [AP] because you are well aware that [FP] is only charged with the final counts in the indictment in respect of [MP]. (SU 137.1)

This further served to remind the jury (if it was not already patently obvious) that the evidence concerning MM had nothing to do with the case concerning the applicant. The point was reinforced when her Honour concluded her directions on coincidence evidence by reminding the jury of the competing arguments of the Crown Prosecutor, and counsel for the accused Golossian and the accused AP (SU 139 - 141). Obviously, nothing was said about any submissions made by counsel on this subject that concerned the applicant.

The penultimate example in the written submissions (AWS 1.1.4 (viii)) is a repetition of some of the previous examples and needs no further discussion.

The final example involved reference to her Honour's summary of the closing arguments of counsel. It was submitted that this was done "in terms which conflated the cases of the [applicant] and her co-accused". The submission does not fairly acknowledge that the closing arguments commenced on a Thursday morning and concluded the following Wednesday afternoon and her Honour's summary was so brief that it occupied only about five pages of transcript (SU 142 - 147). Many of the points that were made had already been referred to, appropriately, in the course of giving the various legal directions. A review of what her Honour said does not reveal to me any possibility that the jury were invited, or left to think, that evidence that did not properly relate to the applicant was nonetheless available for consideration in the case concerning her.

Ground 2 is an example of an "armchair appeal"; counsel picking over the transcript and creating arguments that did not occur to those who had the benefit of the complete atmosphere of the trial. This ground lacks merit and leave to rely upon it pursuant to Rule 4 should be refused.

Ground 3: The trial judge erred in her directions on tendency, coincidence and context evidence

As noted earlier, the Crown relied upon tendency evidence within the cases concerning each complainant but not between those two cases. It also relied upon coincidence evidence between the two cases. In the case concerning MM it also relied upon context evidence. None of this evidence was relied upon in the case of the applicant. It was not asserted that she had any relevant tendency. The evidence concerning MM was not available for coincidence reasoning in the jury's assessment of the alleged offences concerning MP. Unlike MM, MP did not give evidence of there having been any uncharged sexual conduct.

The written submissions for the applicant included a contention that "it is impossible to see how, on the question of whether one complainant consented, the other complainant's evidence that [she] did not has any probative value" (AWS 1.2.4). Reliance was placed upon Phillips v R [2006] HCA 4; (2006) 225 CLR 303 and Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374. However, on the hearing of the application, Mr Ramage indicated an acceptance of the Crown's written submissions. I take this to be a reference to paragraph 81 of those submissions where the limitation on the use of tendency evidence, which I have set out in the previous paragraph herein, was pointed out.

Whilst the applicant's written submissions acknowledged that the trial judge had said at the beginning of her directions on tendency evidence, and said again at the beginning of her directions on coincidence evidence, that they did not apply to the case concerning the applicant (SU 132.9 and 137.1), it was nevertheless contended that "the finding by use of such materials against the co-accused lead almost inevitably to the [applicant's] conviction" (AWS 1.2.3). The basis of this is the contention that the jury should have been directed that they could not use the evidence of MM to provide support for the evidence of MP when they came to consider the reliability of the latter in respect of the case concerning the applicant (AWS 1.2.5).

It was also submitted that the trial judge was in error in not complying with a request made by counsel for the accused Golossian to direct the jury as to "dissimilarities", after having informed the jury of 15 similarities that the Crown relied upon. This is a point that would only have relevance to the applicant if the coincidence evidence was available for the jury's consideration of her case. It was not, and the trial judge directed the jury to that effect in the clearest of terms.

I am not persuaded that there was anything erroneous in the manner in which the trial judge directed the jury on tendency and coincidence evidence; particularly given that she had removed it from consideration in the case concerning the applicant. As counsel for the respondent pointed out (CWS [79]), it is a fundamental assumption that juries will act in accordance with directions: Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 at [13] per Gleeson CJ and Gummow J and at [31] - [32] per McHugh J; HML v R [2008] HCA 16; (2008) 235 CLR 334 at [52] per Kirby J and at [353] per Heydon J; John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 at [103] - [110] per Spigelman CJ. There is nothing in the present case that would justify this Court not acting upon that assumption.

Whilst the statement of this ground includes reference to context evidence, no submission was made on the subject.

There is no merit in this ground and it is unsurprising that no point was taken at trial. I would refuse leave to rely upon it.

Ground 4: The trial judge erred in her directions on the meaning of "in company"

This ground relates to counts 36, 38 and 41 which charged the offences of aggravated sexual assault (s 61J(1) of the Crimes Act). The applicant's conviction in respect of these counts entailed that the jury were satisfied beyond reasonable doubt, inter alia, that sexual assaults committed by Golossian in the first and second prayer sessions, and by AP in the third prayer session, were committed "in company". A strong attack was made as to the adequacy and correctness of the directions given concerning this element, notwithstanding that the directions were the subject of discussion between counsel and the trial judge prior to the summing up, and that the written directions were settled in the light of those discussions.

It is necessary to review some authorities before setting out what were the essential matters that should have been incorporated in the directions. The judgment of Kirby J in R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455 contains a useful review but it must be borne in mind that the focus of the analysis there was on whether a sexual assault that was perpetrated some 50 metres away from others could be said to have been committed in their company. (It was held that in the circumstances of the case it could).

R v Brougham (1986) 43 SASR 187 was concerned with an offence of robbery in company. Two men were passengers in a taxi and one of them attacked the driver and demanded money. The other man assisted but did not physically strike the driver. It was contended on appeal that the conviction could not be sustained because it was necessary that both men must have physically participated before the robbery could be one committed "in company". This contention was rejected. King CJ, with whom Mohr and von Doussa JJ agreed, said (at 191):

A person commits a robbery ... in company where that person participates in the robbery ... together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing ... and of physically participating if required.

R v Crozier (New South Wales Court of Criminal Appeal, 8 March 1996, unreported) involved an appeal against conviction for an offence of sexual assault in company. The appellant had sexually assaulted the complainant in the back seat of a car while another man sat in the front. The trial judge simply directed the jury, in effect, that the presence of the two men was sufficient for the Crown to have established the "in company" element. After quoting the above passage from Brougham, Grove J (Cole JA and Ireland J agreeing) said:

I would apply a similar approach to the allegation of the circumstance of aggravation in this case in assessing the requirements for proof that the alleged offence occurred "in company". The evidence does not show that Fitzgerald was other than entirely passive during the action of the Appellant when he returned from his stated intention of urinating and got into the back seat of the car with the complainant. There is no evidence that Fitzgerald was encouraging the Appellant by word or action, indeed the complainant said that she recalled that he may have had a can of drink. It is true that the direction above recited was given without objection by counsel at trial (who did not appear for the Appellant in the appeal) and it may fairly be concluded that the capacity of the evidence to sustain a finding that the alleged offence by the Appellant was committed in company was not explored. Nevertheless in my opinion the evidence could not sustain the circumstance of aggravation specified in the indictment. Even if that conclusion were incorrect the summing up was deficient to the extent that the jury were given no relevant instruction and left to accept that mere presence of another sufficed.

In R v Leoni [1999] NSWCCA 14 the offence was one of robbery in company and the appellant had been unsuccessful in applying to withdraw his plea of guilty. There had been a number of versions of the events before the primary judge. Adams J (Abadee and Barr JJ agreeing), inter alia, considered whether the appellant's own version supported the charge. He claimed that he stood in the vicinity of the front door of the victim's premises while she was accosted inside and robbed by two co-offenders. It was at least implicit that the victim was aware of his presence and Adams J observed that he was in a position to assist the other two offenders if necessary. After quoting the above passage from Brougham, his Honour said:

[17] It seems to me that the essence of this offence is not that the accused intended that the victim should be overborne by the presence of more than one robber or that he should intend to come to the assistance of the other if necessary. In my opinion, the only relevant intent is that the offender placed himself in the position in which he knew or expected that the victim would know of his presence and ability to assist in the robbery if called on to do so.

...

[20] In my opinion, presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section, even if that presence is unknown to the victim. However, if the offender makes his presence known to the victim so that, to use the words of the Chief Justice in Brougham "the victim is confronted by the combined force or strength of two or more persons" that will be sufficient to satisfy the section even if the offender did not, as it happened, intend to physically participate if required.

In R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 at [153], Wood CJ at CL observed that R v Leoni had developed the concept of "in company" further than Brougham, having regard to what appears in the second of the paragraphs I have quoted.

Her Honour found that Golossian and AP devised and instigated the plan in relation to MP, just as they had done relation to MM. The applicant was found to have played a lesser role; her Honour also finding that she was drawn into the scheme by virtue of her marriage to AP.

There was a victim impact statement before the court. It was described as revealing "emotional devastation" caused by the conduct of the three offenders. Her Honour found that substantial harm was caused: Crimes (Sentencing Procedure) Act, s 21A(2)(g).

Matters personal to the applicant that were taken into account included that she was 38 years of age and had no previous convictions. Reference was made to a psychological report in which it was indicated that the applicant had been transferred to the psychiatric section of the prison due to "mental decompensation" and placed on a strong regime of psychotropic medication. I interpolate that the applicant was only in prison for 7 days before she was admitted to bail.

The judge referred to the applicant having suffered an extreme psychological reaction and symptoms of post-traumatic stress following the revelation to the police by her brother of his conduct towards her as a child. She had previously managed to block these episodes out. The applicant was also experiencing an anxiety disorder.

The applicant had concerns for the future welfare of her children who, at the time of sentencing, were aged 8, 13 and 15. The children had been assessed and a psychological report in respect of them indicated that they would each be severely affected by their mother's incarceration; particularly given their father would be in the same situation. The judge noted that the children were living with their grandmother who had been affected by the legal proceedings as well. She was not in good physical health and there had been an exacerbation of pre-existing mental health problems. Her Honour stated that she had taken these factors into account to the extent she was able.

Her Honour found that the applicant was unlikely to re-offend. Special circumstances were found on the basis that she would benefit from a longer period of supervision than that provided by the statutory ratio (see however Crimes (Administration of Sentences) Regulation 2008, cl 228(1) which limits supervision in such a case to a period of up to 3 years).

The judge made findings as to where in the range of objective seriousness the sexual assault offences committed by Golossian and AP lay. When she came to the applicant, however, she did not make any such findings. She did, however, enunciate her reasons for not imposing the standard non-parole period: prior good character; lesser role; first time in custody; and having committed the offences under the influence of her husband and Golossian.

After referring to the number of offences for which each offender stood for sentence, her Honour said that they all were "very serious".

Grounds of appeal

Three grounds of appeal were originally notified and a fourth was added by leave (it was numbered "2A" for some reason but I will refer to it as "4"):

1. The sentence was unduly harsh and severe.

2. The objective circumstances did not warrant the sentence.

3. The sentencing judge erred in failing to take into account or sufficiently take into account the subjective features of the Appellant.

4. The sentencing judge erred in her approach to the application of the legislation setting standard non-parole periods.

Submissions

In relation to ground 2 it was submitted that the sentence was not warranted when regard was had to six matters:

i. No motive was established against the applicant.

ii. The applicant was not involved in any planning but simply joined in, either because of pressure and bullying by GK or some misguided belief in Golossian.

iii. The applicant was not in a position of trust.

iv. The applicant did not injure, abuse or degrade the complainant.

v. The applicant played no part in the frightening or intimidating telephone calls.

vi. The applicant received no reward for what she did.

It was not contended that there was error on the part of the judge in respect of any of these matters. As to the first matter, the judge specifically stated that she could not be satisfied beyond reasonable doubt about what motivated the applicant.

As to the second matter, the submission ignores evidence such as the applicant taking the complainant's underpants in order that they could be used to make her think she was the subject of a curse.

The third matter is not entirely correct in that the judge found, appropriately, that advantage was taken of, inter alia, the complainant's trust in members of her own family by marriage. It was also said in the victim impact statement that she placed "unconditional trust" in the applicant and the applicant's husband. The applicant's role in tricking the complainant into believing that she was cursed and would have to go to extreme lengths to break it was not insignificant.

There can be no argument about the final three matters but, if they had been present, they would amount to aggravating features. An absence of aggravating features does not mean an offence is less serious. The submission simply points out that the offences could have been worse.

Ultimately, there is no point in determining this ground as the submissions in support of it simply refer to a limited selection of what were, or were not, present amongst the multitude of issues that were relevant to the assessment of sentence. Whether the sentence was unduly excessive remains to be considered under ground 1.

In support of the third ground it was submitted that the sentencing judge failed to (sufficiently) take into account certain subjective features that should have pointed to leniency and the following matters were identified:

i. Prior good character.

ii. The applicant was a good and loving mother.

iii. There was insufficient recognition or allowance for destruction of the family structure. Further, the applicant's sentence would be harsher because of her ongoing cares and concerns about her children. A finding of exceptional circumstances was "justified".

iv. The applicant had already suffered significant imposition of restricted freedom in that she had "onerous bail conditions" for over two and a half years.

The judge specifically stated that she took into account the applicant's prior good character and so there is no merit in the first contention.

The second point is more relevant to the next as on its own it is either irrelevant, or of very marginal significance given the finding of good character.

The limitation on the extent to which hardship to third parties may be taken into account is the subject of well settled principles: see, for example, R v Edwards (1996) 90 A Crim R 510 at 515. There is no suggestion that the very experienced sentencing judge was unaware or overlooked such principles. Indeed there is an indication that she had them well in mind when, after she referred to the evidence relevant to this topic, she said, "I have taken all these factors into account to the extent that I am able" (R/S 25).

In her reference to the reports that were before her in relation to this issue her Honour also specifically adverted to the applicant's "concerns for the future welfare of her children". I am satisfied that she was sufficiently cognisant of the hardship to the applicant's children and their carer as well as the anguish the applicant would experience as a result. Clearly, her Honour gave careful consideration to this issue. In the end, it was a matter for her discretion to determine the extent to which the sentence should be ameliorated on account of these matters. Error would need to be demonstrated on House v The King principles before this Court could intervene: House v The King [1936] HCA 40; (1936) 55 CLR 499. It was submitted that a finding of exceptional circumstances was "justified". That is not the same as saying that the finding should have been made if the discretion was correctly exercised. In my view, no error has been shown.

The final matter concerns the applicant being on "onerous bail conditions", it being submitted that the judge failed to take into account "the lengthy period, over 2½ years that the Appellant had been reporting between 3 and 5 times per week to police". The true position according to the Crown's submissions was that she was reporting five times per week for six weeks and then three times per week for the ensuing 2 years 2 months until the commencement of the trial. Resolution of this contention does not require determination of that dispute.

In R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166, the Court (Tobias JA, James and Howie JJ) considered the issue of whether onerous bail conditions should be taken into account and said:

[242] We accept that in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence.

A submission was made to her Honour that she should take this matter into account (1.4.11 at T6.35) but there was no mention of it in the sentencing remarks. I do not believe that there was any error. The applicant lived at Enfield and was required to report to a police station that was not a significant distance from her home at Burwood, probably less than three kilometres. I take the same approach as that taken by Grove J in R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167:

[18] ... It is undoubtedly open to a sentencing judge to take into account onerous conditions of bail in assessing sentence but he [or she] is not obliged so to do. The circumstances in which the applicant was on bail in this case do not mandate any such mitigation of sentence ... .

The new ground of appeal against sentence, which I have numbered four, involves a contention that the sentencing judge's approach to the standard non-parole period for the sexual assault offences was contrary to the principles in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The sentencing exercise in the present case occurred before the courts of this State had the benefit of Muldrock, when judges and practitioners understood that the longstanding authority of R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, in respect of which the High Court had refused to grant special leave to appeal, prescribed the correct approach.

The written submissions for the applicant included that her Honour erred in:

i. apparently incorrectly construing that the application of the non-parole period legislation mandated a particular non-parole period for a particular offence;

ii. apparently treating the non-parole period as if it were the necessary starting point or the only important end-point in framing a sentence;

iii. apparently giving determinative or even primary significance to the prescribed period when it was only one of a large number of matters to be taken into account; and

iv. commencing with a non-parole period as prescribed under the legislation which she would have imposed as the non-parole period, but for the existence/application of the matters set out therein.

The use of the word "apparently" in respect of the first three contentions may be taken as a concession that it is not at all clear that the contention is correct. In any event, none of these submissions are borne out by what her Honour actually said. I have summarised the sentencing remarks above. They have all the hallmarks of her Honour taking all relevant matters into account, including the maximum penalty and the standard non-parole period as guideposts, in the manner required by Muldrock.

The fact that the judge gave reasons for not imposing the standard non-parole period was consistent with what was required by R v Way and is not inconsistent with what was said in Muldrock. The joint judgment in the latter includes:

[29] A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.

I do not accept that there was anything erroneous in her Honour's approach in relation to the standard non-parole period for the aggravated sexual assault offences. She did not purport to "attribute mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period". She did not, in the case of the applicant, "classify the objective seriousness of the offending", although indicating how serious a judge regards an offence is basic sentencing practice: Zreika v R [2012] NSWCCA 44 at [46] per Johnson J. She did identify fully the facts, matters and circumstances which bore upon her judgment as to the appropriate sentence to impose. She did not commence with the question of whether there were reasons for not imposing the standard non-parole period (Muldrock at [25]) or adopt a "two-stage approach" (Muldrock at [27]).

Her Honour's approach in this case may be contrasted with that which was found recently to be erroneous in Mendes v R [2012] NSWCCA 103. In that case her Honour first stated the question whether she should impose the standard non-parole period; said that she found that the offence in question fell in the middle of the range of objective seriousness; and then gave reasons for not imposing the standard. In the present case, her Honour did not commence with the question of whether the standard should be imposed and then make a finding as to where in the range of objective seriousness the offence fell.

There is nothing in what her Honour said that justifies the submission that she "impermissibly limited the full exercise of her discretion" (Further AWS at (d)).

I would reject this ground.

That leaves the first ground to be considered. Nothing was put in the written submissions for the applicant that was specifically devoted to it. There was no attempt to engage with the basic propositions set out in the respondent's submissions.

To make good this ground it is necessary for the applicant to establish that the sentence was unreasonable or plainly unjust: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at 370-371 [25]. This Court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised her discretion: Lowndes v R [1999] HCA 29; 195 CLR 665 at 671-672 [15]. Intervention by this Court on a ground that the sentence is manifestly excessive is not warranted simply because the sentence is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538 [59].

Mr Ramage said in the course of his oral submissions:

I concede at first blush the sentences were not dramatically high. On the other hand, this was a case where she was sentencing a mother of three children who had no prior convictions whatsoever and led a blameless life until then. (31.1.12 at T36.27)

Is an aggregate sentence of 9 years "plainly unjust" for a person who played a significant role in facilitating the unlawful drugging and sexual penetration of a woman on three separate occasions? The circumstances attending the offences were certainly unusual but that did not diminish their seriousness. Of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act, general deterrence, punishment, denunciation and making the applicant accountable for her actions were significant in the applicant's case. There is, on the other hand, every reason to be sympathetic to the plight of the applicant's children and her anxiety in being separated from them. There are, however, limitations on the significance of those features. Leniency was warranted on account of the applicant's prior good character, lack of previous convictions and unlikelihood of reoffending.

Giving full force to all matters favourable to the applicant, I am left in the position of being unpersuaded that the sentence was manifestly excessive.

A question remains whether there should be some downward adjustment of the aggregate sentence to give effect to my conclusion that the conviction for the conspiracy offence was not supported by the evidence and should be quashed. One of the difficulties with aggregate sentencing is that this Court does not know what the sentencing judge would have regarded as appropriate to reflect the totality of criminality if the convictions were confined to the s 38 and s 61J offences. The only indication of her view of the seriousness of that offence is that she said she would have imposed an individual sentence of 2 years. When that is compared to the indicative sentences of 4 years, 5 years 4 months and 6 years for the other offences, it would seem that the conspiracy was regarded as significantly less serious.

There was a suggestion during the course of oral submissions that, if a question arose as to resentence following this Court quashing any conviction, the matter should be remitted to the District Court (1.2.12 at T5). Given that what I propose is the quashing of only the conspiracy count, and not one or more of the more serious counts, it is my view that this Court should make its own assessment on resentence.

The conspiracy made some contribution to the totality of criminality. There should be a reduction of the aggregate sentence to reflect this but it should not be great. I propose a period of 6 months with a proportional reduction of the non-parole period.

Orders

I reiterate that I propose the following orders in respect of the application for leave to appeal against conviction:

1. Leave to appeal in respect of grounds 1 to 14 refused.

2. Leave to appeal in respect of ground 15 granted.

3. The appellant's conviction for the offence of conspiracy (count 42) quashed and a verdict of acquittal entered.

4. The appeal otherwise dismissed.

I propose the following orders in respect of the application for leave to appeal against sentence:

1. Leave to appeal against sentence allowed.

2. Aggregate sentence of imprisonment for 9 years with non-parole period of 5 years quashed.

3. In lieu, sentenced to an aggregate term of imprisonment of 8 years 6 months with a non-parole period of 4 years 8 months to date from 29 April 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 28 December 2015.

4. Pursuant to s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the sentences that would have been imposed for each of the offences against ss 38 and 61J Crimes Act 1900 had separate sentences been imposed are the same as indicated by the District Court.

SCHMIDT J: I agree with R A Hulme J.

**********

Amendments

18 October 2012 - McClellan CJ at CL replaced with Johnson J

Amended paragraphs: 318

24 August 2012 - removed "PAGE \# "'Page: '#'' reference

Amended paragraphs: 175

Decision last updated: 18 October 2012

Medium Neutral Citation:	FP v R [2012] NSWCCA 182
Hearing dates:	31 January; 1 February 2012
Decision date:	23 August 2012
Before:	McClellan CJ at CL at [1] R A Hulme J at [2] Schmidt J at [332]
Decision:	Conviction appeal: 1. Leave to appeal in respect of grounds 1 to 14 refused. 2. Leave to appeal in respect of ground 15 granted. 3. The appellant's conviction for the offence of conspiracy (count 42) quashed and a verdict of acquittal entered. 4. The appeal otherwise dismissed. Sentence appeal: 1. Leave to appeal against sentence allowed. 2. Aggregate sentence of imprisonment for 9 years with non-parole period of 5 years quashed. 3. In lieu, sentenced to an aggregate term of imprisonment of 8 years 6 months with a non-parole period of 4 years 8 months to date from 29 April 2011. The offender will be eligible for release on parole upon the expiration of the non-parole period on 28 December 2015. 4. Pursuant to s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the sentences that would have been imposed for each of the offences against ss 38 and 61J Crimes Act 1900 had separate sentences been imposed are the same as indicated by the District Court.
Catchwords:	CRIMINAL LAW - appeal - objections or points not raised in court below - Criminal Appeal Rules, Rule 4- leave to appeal granted only where miscarriage or an irregularity going to the root of the trial CRIMINAL LAW - appeal - conviction - misdirection by trial judge - multiple grounds of appeal - evidence not relevant to appellant where multiple accused - tendency and coincidence and context evidence - meaning of 'in company' element of aggravated sexual assault - physical presence during preparatory acts - knowledge of lack of consent - directions on criminal standard - jury note on 'beyond reasonable doubt' - insufficient summing-up - failure to direct on other charge the subject of a directed acquittal - leave to appeal refused CRIMINAL LAW - appeal - conviction - guilty verdict not reasonably open to the jury - insufficient evidence to be satisfied of guilty beyond reasonable doubt CRIMINAL LAW - appeal - sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39 - no error in application of standard non-parole period CRIMINAL LAW - appeal - sentence - no failure to take into account subjective features CRIMINAL LAW - appeal - sentence - unreasonable or plainly unjust - sentence not manifestly excessive
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Regulation 2008 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Appeal Rules
Cases Cited:	ARS v R [2011] NSWCCA 266 Brown v Dunn (1893) 6 R 67\ Clough v R (1992) 28 NSWLR 396 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 Gilbert v R [2000] HCA 15; (2000) 201 CLR 414 Gilham v R [2012] NSWCCA 131 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 HML v R [2008] HCA 16; (2008) 235 CLR 334 Green v The Queen (1971) 126 CLR 28 House v The King [1936] HCA 40; (1936) 55 CLR 499 John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 Lowndes v R [1999] HCA 29; 195 CLR 665 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Markou v R [2012] NSWCCA 64 Mendes v R [2012] NSWCCA 103 Mohan V The Queen [1967] 2 AC 187 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Picken v R; R v Picken [2007] NSWCCA 319 Phillips v R [2006] HCA 4; (2006) 225 CLR 303 R v Brougham (1986) 43 SASR 187 R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455 R v Crozier (Court of Criminal Appeal, 8 March 1996, unreported) R v Edwards (1996) 90 A Crim R 510 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 R v Leoni [1999] NSWCCA 14 R v Murray (1987) 11 NSWLR 12 R v Phan [2001] NSWCCA 29; (2001) 53 NSWLR 480 R v Reeves (1992) 29 NSWLR 109 R v Southammavong; R v Sihavong [2003] NSWCCA 312 R v Stokes and Difford (1990) 51 A Crim R 25 R v Tripodina (1988) 35 A Crim R 183 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167 RWB v R; R v RWB [2010] NSWCCA 147; (2010) 202 A Crim R 209 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374 Tekely v R; Nagle v R [2007] NSWCCA 75 The Queen v Wilson (1986) 42 SASR 203 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Regina FP
Representation:	Counsel: Mr M Ramage QC with Mr R Evans (Applicant) Ms S Dowling (Respondent) Solicitors: McKells Solicitors Solicitor for Public Prosecutions
File Number(s):	2009/80062
Publication restriction:	Non-publication of anything likely to lead to identification of complainants
Decision under appeal	Date of Decision: 2011-05-06 00:00:00 Before: Hock DCJ File Number(s): 2009/80062