Gorrick v Regina

[2006] NSWCCA 232

CITATION:	Gorrick v Regina [2006] NSWCCA 232
HEARING DATE(S):	7 April 2006; 16 June 2006
JUDGMENT DATE:	3 August 2006
JUDGMENT OF:	Grove J at 1; Simpson J at 79; Bell J at 80
DECISION:	APPEAL AGAINST CONVICTION DISMISSED; APPEAL AGAINST SENTENCE DISMISSED
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SEXUAL INTERCOURSE WITH PERSON AGED BETWEEN TEN AND SIXTEEN YEARS - ALLEGATION OF INCOMPETENT REPRESENTATION AND FAILURE TO CARRY OUT INSTRUCTIONS AT TRIAL - EVIDENCE HEARD ON APPEAL - ALLEGATIONS REJECTED - POLICE INTERVIEWERS NOT BOUND TO DISCLOSE THEIR KNOWLEDGE TO SUSPECT - SENTENCE - NO DEPARTURE FROM APPROPRIATE PATTERN - FURTHER OFFENCE INVOLVING DIFFERENT VICTIM - IMPOSITION NOT EXCESSIVE
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	Nudd v The Queen 2006 80 ALJR 614 R v MJR 2002 54 NSWLR 368 R v Simpson 2001 53 NSWLR 703
PARTIES:	Christopher Charles Gorrick v Regina
FILE NUMBER(S):	CCA 2005/2291
COUNSEL:	In person (Appellant) P. Ingram (Crown/Respondent)
SOLICITORS:	S. Kavanagh (DPP)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1157
LOWER COURT JUDICIAL OFFICER:	McGuire DCJ, Williams DCJ
LOWER COURT DATE OF DECISION:	5 November 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	N/A

2005/2291

GROVE J
SIMPSON J
BELL J

3 August 2006

CHRISTOPHER CHARLES GORRICK v REGINA

Judgment

1 GROVE J: This is, first, an appeal against conviction following trial before McGuire DCJ and a jury. The appellant was tried on an indictment containing nine counts, counts 1 and 2 charging indecent assault upon a person aged under sixteen years and under his authority and counts 3 to 9 inclusive charging sexual intercourse with a person above ten years and under sixteen years and under his authority. Having regard to the times at which the offences were alleged to have been committed, the charges were preferred pursuant to s 61E (1A) and s 66C (2) of the Crimes Act 1900 respectively. These provisions have since been repealed and replaced. On all counts, the victim was the same person. By jury verdict, the appellant was found not guilty on counts 1 and 2 and guilty on counts 3 to 9 inclusive.

2 The trial took place in July 2004. Following the convictions, the trial judge became unavailable and sentences were imposed by Williams DCJ in November 2004. On that occasion the appellant was also sentenced for an offence of indecent assault contrary to s 61L of the Crimes Act. The victim in this instance was different from the person named in the trial indictment. It is convenient to refer to this as the unrelated offence.

3 Williams DCJ sentenced the appellant on count 3 to imprisonment consisting of a non parole period of fifteen months commencing on 5 November 2004 and expiring on 4 February 2006 with a balance term of nine months; on counts 4 to 9 to terms of imprisonment to be served concurrently consisting of a non parole period of four years commencing on 5 November 2004 and expiring on 4 November 2008 with a balance term of two years and on the unrelated offence to imprisonment consisting of a non parole period of twelve months commencing on 5 May 2008 and expiring on 4 May 2009 with a balance term of six months.

4 The overall effective sentence can be stated to be a total term of six years with a non parole period of four years six months. The earliest date of eligibility for release to parole is therefore 4 May 2009.

5 The second matter before the Court is, in the alternative, an application for leave to appeal against severity of sentence.

6 The appellant was born on 26 January 1948. The complainant (in respect of the trial counts) was born on 16 June 1973. They met in about August 1987 when she was in Year 7 at a school in Strathfield. By a marriage which had been dissolved the appellant had two sons and a daughter. These children and the complainant became acquainted and, on occasions, the appellant was present when there were discussions about comparative ages and the school years into which they had progressed.

7 The marriage of the complainant’s parents had failed and they lived separately and apart. In early 1988 her mother had commenced a relationship with the appellant and moved into premises to live with him. Although the complainant for a time resided with her father, her father’s lady companion and her brother, over the ensuing years she substantially became a member of the household of her mother and the appellant.

8 Having regard to the grounds of appeal to which I will later turn, it suffices to note that the appellant engaged in sexual activity with the complainant including intercourse. The evidence included lengthy detail about these matters and what can be described as a culmination of the relationship which resulted in the appellant and the complainant living together until about 1993. In the interim, as might be expected, it was stated to be about 1992, the relationship between the appellant and the complainant’s mother ceased.

9 The appellant gave evidence at his trial. He agreed that he had had a relationship with the complainant including participation with her in sexual intercourse. He had not denied this when interviewed by police. The issue of when the first act of intercourse took place was fought at trial and is central to the first and principal ground of appeal relied upon by the appellant.

10 At trial he was represented by Ms Gallagher of counsel instructed by Mr Hinde, solicitor. He has appeared for himself in the appeal. In support of it the appellant has forwarded through the Registrar a considerable volume of written material, a great deal of which is in the form of affidavit. The first ground of appeal did involve the reception of evidence but it was made clear to the appellant that, other than in instances where the reception of material as evidence was indicated, the Court would treat the remainder as submissions irrespective of the form in which it had been presented. It is to be observed that much of the material, although in the form of affidavit, amounts to submission rather than testimony.

11 Despite the relative immensity of the volume of paper, the appeal can and should be determined by consideration of matters which can be resolved quite briefly.

12 The appeal was heard on 7 April 2006 and further on 16 June 2006. By letter to the Registrar dated 12 May 2006 the appellant submitted grounds of appeal in what was said to be final form. Essentially the amendment to existing documentation related to the application for leave to appeal against sentence and the appellant acknowledged that his amendment was not intended to affect the proceedings to the extent that they had already been heard. In particular, grounds 1 and 2 remained the same and these are the sole grounds of challenge to conviction.

13 Those grounds were expressed in these terms:

“1. That legal counsel for the defendant, Ms J. Gallagher and instructing solicitor, Mr Jeffrey Hinde, displayed flagrant incompetence in the preparation and conduct of the trial, such as to deprive the defendant of a fair chance of acquittal, thus leading to a miscarriage of justice.
2. That trial judge McGuire erred in not excluding ERISP evidence in total under s 138 of the Evidence Act ”.

14 I deal with ground 1. To appreciate the appellant’s complaint it is necessary to sketch legislative background under which counts 3 to 9 were charged.

15 Section 66C (2) of the Crimes Act provided:

“Any person who has sexual intercourse with another person who:
(a) is of or above the age of 10 years, and under the age of sixteen years; and
(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,

shall be liable to imprisonment for 10 years.”

16 Section 77 of the Act was also relevant. This section was the subject of frequent amendment and hence operative over varying periods in different forms. The changes essentially reflected alterations to the specification and/or numbering of offences of forms of sexual misconduct as proscribed by the Crimes Act from time to time.

17 For present purposes, the critical essence of the provision was that, except as provided by s 77(2) consent of a complainant was no defence to a charge under s 66C (nor s 61E (1A)).

18 So far as is relevant to the argument advanced the provision was:

“(2) It shall be a sufficient defence to a charge which renders a person liable to be found guilty of an offence under section 61E(1A)…(or).... 66C, …. it is made to appear to the court or to the jury before whom the charge is brought that -
(a) the child to whom the charge relates was over the age of 14 years at the time the offence is alleged to have been committed;
(b) the child to whom the charge relates consented to the commission of the offence, and
(c) the person so charged had, at the time the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child to whom the charge relates was of or above the age of 16 years.”

19 The contention of the appellant before this Court is that he and the complainant first engaged in sexual intercourse in September 1989 and she had therefore attained the age of sixteen years nearly three months beforehand. The evidence at trial had included considerable detail of family style events in the household of the appellant and the complainant’s mother including the celebration of birthdays and the exchange of cards, gifts or the like.

20 Thus, it is submitted by the appellant, it could never have been reasonably contemplated that he could rely upon the defence made available by s 77 because at all times he knew the complainant’s age. His answer to the charge was that no act of sexual intercourse took place before she had attained the age of sixteen years.

21 The alleged incompetence of his legal representatives was said to be manifest in raising the defence pursuant to s 77 at all. The appellant further alleged that raising this defence was contrary to his explicit instructions.

22 On several occasions during his evidence at trial, when being cross examined, the appellant acknowledged that he knew the complainant’s age. For example, (T733) he was cross examined in these terms:

“Q. Because (the complainant) was born in June ’73, that’s correct isn’t it?
A. That’s correct.
Q. And you knew that in 1988 and 1989, didn’t you?
A. Correct.”

23 There can be no doubt that in the light of this evidence it would be impossible to sustain the requirement of belief necessary to sustain a defence under s 77. Ms Gallagher recognized this once the appellant’s concessions in cross examination were made and applied to the trial judge for discharge of the jury (T816) because, as she pointed out, she had “laboriously” taken the complainant to the issue of consent which she pursued only by reason of its pertinence to the defence which now had to be abandoned. It should be noted that Ms Gallagher informed his Honour that she had been putting that defence in accordance with her instructions “up until today” that is, until the appellant made a concession in his testimony which I have mentioned.

24 Privilege necessarily having been waived, evidence has been received in this Court concerning what instructions were given or were not given by the appellant from Ms Gallagher, Mr Hinde and the appellant himself. Obviously the contest basically revolved around the raising of a defence pursuant to s 77.

25 It was not disputed that instructions had been given that the first act of sexual intercourse in fact took place on 7 September 1989. Ms Gallagher led evidence in chief from the appellant to that effect (T632) supported by reference to a diary entry of that date with a time (1510 hrs) and the complainant’s forename which the appellant testified had the significance that it was the first occasion that intercourse took place. Ms Gallagher also led evidence that the appellant had travelled overseas between 12 June and 22 July of that year in connection with a radar replacement project (he was at the time an air traffic controller by occupation) and he was able also to use this as an occurrence which enabled him to fix the time (after his return) when the first act took place.

26 The defence pursuant to s77 was put as an alternative to the denial of any act of intercourse prior to the complainant’s sixteenth birthday.

27 I interpolate that the appellant stressed at some length in his submissions that he would expect no one to accept that he did not know the complainant’s age and that the conduct of the trial in raising the defence would have been destructive of his credibility. It therefore followed, he claimed, that this undermined any possibility of belief in his assertion that no intercourse took place before the complainant had reached the age of sixteen.

28 The conduct of alternative defences is a matter familiar to anyone engaged in trial processes. At trial it is a matter of art and skill for an advocate to present them. I find nothing inherently incredible about instructions which involve inconsistencies of the sort to which the appellant has drawn attention. The impression which I formed was that he failed to comprehend that there exists a capacity to present alternative defences. That impression was somewhat confirmed when he put to Ms Gallagher (T58 7 April 2006) “that the two defences are mutually exclusive.” Of course they are in the sense of an ultimate finding but that is to overlook the difference between argument and ultimate result.

29 The transcript of trial shows that Ms Gallagher conducted the case up to the point of the appellant’s concession of knowledge of the age of the complainant consistently with instructions that the appellant contended that no act of sexual intercourse until the complainant was sixteen, but, if the jury were satisfied that such act or acts took place before the attainment of that age, she was in fact over fourteen years of age, had consented to the intercourse and it was reasonable for the appellant to believe and in fact he believed that she was at the time over the age of sixteen years. It was the lastmentioned element which obviously became untenable following the appellant’s testimony.

30 In the course of evidence before this Court, Ms Gallagher described her reaction to this testimony of the appellant at the first opportunity thereafter. The florid terms in which she said she addressed him carried convincing force to her assertion that his testimony was inconsistent with instructions upon which she had been acting up to that point. She described herself as saying to him:

“What the fuck is going on, what are you doing, can you please tell me what is going on?” (T50, 7 April 2006)

31 A factor which is supportive of the version of events of the legal advisers is the circumstance that, before the retainer of Ms Gallagher, the appellant had had a conference with another counsel, a Mr Thomas, and when he came to see Ms Gallagher he was already equipped with knowledge which enabled him to specify the defence of reasonable belief in the age of the complainant by reference to the number “section 77”. If, as he now claims, this was always an irrelevancy, one is given to wonder why he referred to his possession of this knowledge.

32 As an exercise in judgment of the credibility of conflicting witnesses, I would accept Ms Gallagher and Mr Hinde and reject the appellant. However there is one significant matter which, in my view, destroys the credibility of the appellant’s propositions.

33 After the first day of the hearing of the appeal during which it became clear exactly what the appellant was asserting against his former advisers, namely, not only that they were incompetent as the ground stated, but that they were acting directly contrary to explicit instructions, a search was apparently made for notes taken at conference.

34 As a result a document was produced which is titled “Memorandum of Conference”. It records a conference stated to have been held at Frederick Jordan Chambers on 15 June 2004 at which were present the appellant, Ms Gallagher, Mr Hinde, Ms Serena Foo and Ms Catherine Karim. The two lastmentioned have been identified an employee of Mr Hinde and a law student respectively. There are emailed details on the document which show that it emanated from Ms Karim on 17 June 2004 and was sent to Mr Hinde. The first day of trial was 5 July 2004.

35 The very first relevant entry in the memorandum is in these terms:

“Defence – that at all times CG (the appellant) thought K (the complainant) was 16.
Issue: loco parentus (sic)
Started having sexual relations in winter 1988. CG thought K was 16. K actually 15. 16t (h) birthday on 16 June 1989.”

36 Thereafter the document presents notes which appear to follow the indictment, a draft of which was obviously in the possession of the lawyers or the appellant may have been arraigned pre-trial in accordance with procedures adopted in the District Court.

37 It is true that the notes include reference to s 77 in respect of count 1 although the beginning of the note is “CG can’t recall this occurring”. The notes record the appellant’s instructions that he denied what was alleged under count 2. In fact, the case was conducted on the basis of disputation of the appellant of the allegations which gave rise to counts 1 and 2 upon which, as already observed, he was acquitted. If anything, any ambiguous quality to the notes, such as the reference to s 77 concerning count 1, tends to confirm the genuineness of this document which was prepared by a student.

38 Significantly, there are further notes of detail (specifically in relation to count 6) in these terms:

“CG claims that he and K had spoken about having sex before. Reagrding (sic) CG’s conversations with K re having sexual intercourse there were 2 issues that K raised – can we do this? And Is this right? CG answered – we cant have sex till your over 16. K remained silent. Thus CG believed at the time that she was 16 and by saying that to her and K not answering by saying something along the lines of ‘I’m not 16 yet’, It reiterated his belief that she was 16.”

39 I would reject the submission by the appellant that his advisers acted contrary to their instructions. I find the evidence is in fact strongly demonstrative of their having conducted the case in complete conformity with them.

40 The allegation of incompetence is interwoven with the allegation concerning the raising of s 77 defence contrary to instructions, and it is sufficient to record that there is nothing detectable which would support this allegation.

41 I recognize that in the course of submissions, both written and oral, the appellant has ranged over many details far beyond those which I have mentioned but in the absence of any perceptible relevance to what is necessary to determine the ground raised, it would be a fruitless and unnecessary exercise to respond to them all.

42 At the core of what the appellant seeks to advance is a case which omits what had been canvassed at trial in order to enable the s77 defence to be argued and which had become untenable at that point in the trial that the appellant was being cross examined.

43 The hyperbolic language of the appellant’s submissions, for example, that the conduct of his counsel represented “a litany of error, misjudgement and unprofessionalism” is not justified by analysis of the conduct of the trial as manifest in the record and transcript of the proceedings.

44 It can be recorded that in Crown written submissions dated 23 March 2006 there is offered a response, page by page and paragraph by paragraph, to the document submitted by the appellant under the title “Detailed Submissions”. That response by the Crown clearly shows that nothing raised by the appellant establishes the ground of appeal and I would add that it also makes plain that none of the matters canvassed by the appellant provokes an enquiry as to the integrity of the verdicts.

45 The production of the notes taken by Ms Karim at the conference has extinguished the credibility of the proposition fundamental to the appellant’s complaints and demonstrates the false premise upon which this ground has been presented. In referring to that evidence, I do not intend to exclude the preponderant credibility of the evidence of Ms Gallagher and Mr Hinde over that of the appellant.

46 I should also record that the appellant on frequent occasions sought to make reference and rely upon Nudd v The Queen 2006 80 ALJR 614, a case in which issues concerning alleged incompetence of trial counsel and consequent alleged miscarriage of justice were discussed. There is nothing in the judgments in that authority which should be applied to the appellant’s arguments so as to alter the conclusion that ground 1 should be rejected.

47 Ground 2 was stated to rely upon s 138 of the Evidence Act, a provision which relates to improperly or illegally obtained evidence.

48 The gravamen of the appellant’s complaint is that, at the time of interview by police, they were aware of the correct year of birth of the complainant but withheld from him this material fact, thus permitting him to give demonstrably incorrect answers because of a misapprehension as to the year which was operating on his mind at the time.

49 There is no obligation on investigators to volunteer matters within their knowledge to a person being interviewed. Of course, if investigators are seeking a comment from the interviewee, they may not deliberately engage in deception but that is a far cry from a requirement to disclose their own knowledge which the appellant seeks to categorize as trickery.

50 The appellant had told police, who interviewed him in June 2003, that he needed to check dates but it was he himself who raised his son’s birth date as a point of reference by which he could come to the belief that the complainant was at the relevant time sixteen years of age because he thought she was six months older than his son whereas it appears that in fact his son was some six months older than her (Q247 – Q256).

51 There was no basis in the evidence for a finding that the content of the interview was improperly obtained nor any basis for his Honour to exclude it for that reason.

52 Ground 2 also fails and the appeal against conviction should therefore be dismissed.

53 I deal with the application for leave to appeal against sentence first by reference to the statement of grounds in the document forwarded to the Registrar on May 13, 2006.

54 Ground 3. That the sentencing judge, not being the trial judge, erred in failing to consider all available evidence from the trial, being evidence of a material nature, and in so failing was unable to form a balanced view such as to objective criminality of the applicant. Alternately that the sentencing judge failed to ensure that all material evidence from the trial was available for his consideration.

55 A great deal of the evidence at trial related to facts and circumstances touching upon the actual commission of offences which the jury found proved and upon the credibility of individuals especially, of course, the appellant and the complainant. There was no need for the sentencing judge to be apprised of the detail of collateral contradictions. What he was required to do was to make findings of fact to the requisite standard, not inconsistent with the jury’s verdicts, for the purpose of imposing sentence. The appellant had retained senior counsel to appear in the sentencing proceedings. His Honour specifically “formalized” as he put it, the material put before him for the purpose of sentence (T6 – 5 November 2004). There was no suggestion that the material was inadequate for the task and there was no inhibition upon addition of any material which the appellant wished to demonstrate as relevant. There was no suggestion of inadequacy of the detailed documentation and thereafter the appellant gave evidence himself in the sentencing hearing. The primary resource for examination in this Court of the sentencing proceedings is his Honour’s remarks on sentence and they do not reveal that his Honour’s conclusion as to the criminality of the appellant was unbalanced.

56 Ground 4. That the sentencing judge, not being the trial judge, erred in not having regard to evidence of a material nature, namely evidence of Trixie Ellen Benedict, Benjamin Charles Gorrick and Leonie Margarette Goodman, in that due consideration of this evidence could have reasonably led the sentencing judge to a significant mitigation of the applicant’s culpability.

57 It is not shown that the sentencing judge committed error in connection with the evidence of the nominated people. It was not obligatory for him to refer to this evidence. In fact the firstnamed witness is the appellant’s mother, the second is his son and the third, a former wife. These witnesses, in a general sense, spoke of the apparent contentment and even enthusiasm of the complainant during her “relationship” with the appellant, although it is of passing interest Ms Goodman testified that the appellant initially denied the existence of any relationship although later admitting it (T513).

58 What the appellant appears to fail to comprehend is that the gravamen of the offence created by s 66C (2) is the taking of advantage of girls who are immature. Williams DCJ referred to this. Of course, different girls advance to different levels of maturity at various ages, and the age of sixteen is arbitrary but it was well understood by the appellant that sexual intercourse with any girl under that age was criminally punishable.

59 Ground 5. That the sentencing judge, not being the trial judge, erred in not having regard to the comments of the trial judge in relation to the applicant’s culpability as to the consent (or otherwise) of the complainant to sexual intercourse.

60 As I have already mentioned, it was his Honour’s duty to make his own findings about relevant matters and not to implement comments which may or may not have been passed by the trial judge. This ground is entirely untenable.

61 Ground 6. That the sentencing judge, not being the trial judge, erred in not having regard to the contradictory evidence of the complainant in relation to the uncharged act of sexual intercourse in the aeroplane prior to the complainant’s 16th birthday.

62 This is a matter to which the appellant has made repeated reference in the course of written and oral submissions. An act of sexual intercourse occurring outside of the jurisdiction of the courts of New South Wales obviously cannot be prosecuted in those courts and it does not advance any argument of the appellant to seek to read some implication into the circumstance that there was no charge. The contradiction referred to the appellant identifies a matter of comparative or contrasting credibility. That was an issue for the jury. This contest has no relevance to the integrity of his Honour’s sentence assessment.

63 Ground 7. That the sentencing judge, not being the trial judge, erred in the determination of certain facts such determination mitigating against the applicant in the sentencing judge’s assessment of culpability.

64 I advert again to the remarks on sentence and the absence of any finding by his Honour which lay outside the boundaries of his function as a fact finder. There is no substance in this ground.

65 Ground 8. That the sentencing judge, not being the trial judge, erred in his consideration and apparent findings in relation to the reasons for the two not guilty verdicts delivered by the jury.

66 There is no suggestion that his Honour included in his impositions any element to reflect the counts upon which the appellant was acquitted. His comment that he did not propose to ponder the reasons for the acquittals is no indication that there is some inherent error in the sentences, as assessed, for the crimes of which the appellant was convicted.

67 Ground 9. That the sentencing judge, not being the trial judge erred in not stating his judgment on objective criminality as to a starting point for the sentencing, nor providing reasons for the sentence imposed.

68 It suffices to respond to the assertions in this ground to note that his Honour’s remarks on sentence, read as a whole, more than adequately discharged his duty to provide reasons. His findings about objective criminality are abundantly evidenced in the passage from his remarks which I will quote shortly.

69 Ground 10. That for the reasons stated in Grounds 3 to 9, and for the reasons stated in written submissions specifically in relation to sentencing patterns prevalent at the time of the offences, and current (to 2004), sentencing patterns, that the sentence imposed by the sentencing judge was manifestly excessive.

70 It is received doctrine that, when offences are prosecuted years after their commission, regard has to be paid to extant sentencing patterns at the earlier time: R v MJR 2002 54 NSWLR 368. This can only require application if there is some difference in discernible patterns.

71 As a matter of precision, there is no current pattern of sentencing for offences under s 66C(2) because, as I mentioned at the outset, that provision has been repealed. To the extent that it has been replaced, there is no reason in principle why a pattern relevant to the replacement provision is incapable of providing useful guidance, but no discriminatory pattern showing that the appellant has been unfairly treated is apparent.

72 The appellant’s submissions include challenges to items in documentation including assertions of inaccuracies or lies about matters such as are recorded in the pre sentence report. This Court is not, unless error is determined and the power to intervene provoked, engaged in sentencing nor in the fact finding out of which term of sentence is assessed.

73 Sentence was imposed by Williams DCJ upon the findings which he recorded in his remarks on sentence. I would adopt and endorse his Honour’s summation:

“At the time of the events that are the subject of the trial proceedings Mr Gorrick was aged forty and worked as an air traffic controller, the complainant was aged fifteen. It appears that she was a very ingenuous young woman, having spent six years of her childhood on a mission in New Guinea with her parents and indeed prior to meeting Mr Gorrick had never been to the movies.
Whether or not a real and reciprocal relationship of a loving nature between Mr Gorrick and the complainant began at this time and continued on thereafter, is really neither here nor there when the relationship involves such a significant disproportion in age and maturity. It is also of little consequence when inappropriate physical intimacy is involved. Apart from any question of authority on Mr Gorrick’s part he was an adult dealing with a vulnerable young girl, no doubt in the process of going through puberty, as well as coping with her parents separating and the rigours of study at school. She was also I am satisfied quite unsophisticated. As the Crown points out in her submissions she was a relatively naïve and unworldly girl who had lived a somewhat sheltered life and who, before seeing the prisoner undress, had never seen a naked male. She had never had anything placed inside her vagina such as a tampon or anything for the purposes of a medical examination before the prisoner assaulted her. She knew little about matters involving reproduction and sexuality.
In those circumstances he took advantage of the considerable age and maturity differences between himself and the complainant to in effect gratify his own desires without regard to the possible effect such behaviour was likely to have on a fifteen year old schoolgirl. The result was to create in her mind an enormous conflict of emotions between both love and hate.
The law regards persons under the age of sixteen as being children in the sense that at that somewhat arbitrary age they are unlikely to have the capacity to make appropriate value judgments especially in regard to areas of love and intimacy and what may or may not be appropriate physical relationships. Children are to be protected by the law from the unnecessary physical and psychological consequences of inappropriate sexual behaviour by adults upon them”.

74 Neither, on the issue of sentence, should the unrelated offence to which the appellant pleaded guilty be ignored. In February 2003 the appellant was staying overnight with friends and in the early hours of the morning he began to sexually molest his hosts’ seventeen year old daughter. His Honour had an agreed statement of facts which he epitomized thus:

“The complainant in this matter awoke to find him lying next to her on a double mattress on the floor where she had been sleeping. He grabbed her around the waist and she attempted to move away but was held tightly. She tried to get away on a number of occasions but was held tightly. She felt her pajama top being lifted and attempts being made to pull her pajama bottoms down. After a number of attempts to touch her breasts he eventually succeeded, despite her resistance during which she felt that she presumed was his erect penis on her buttock area. He then began to try and remove her underpants and when she felt his hand moving down towards her vagina she sat up, ran to an adjacent room and hid on a lounge”.

75 Shortly thereafter the appellant dressed, got into his car and fled, leaving behind an adult woman with whom he had come to the premises. This woman had slept through the events described. The victim heard the appellant depart and fell asleep on a couch. She awoke and was physically sick, after which she was found in a distressed state by her father who contacted police.

76 In relation to all of the appellant’s submissions it is apt to cite a fundamental emphasis offered by Spigelman CJ in R v Simpson 2001 53 NSWLR 703 @ 720:

“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘If it is of the opinion that error has occurred in the sentencing process’. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that ‘some other sentence … is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefor’ is not satisfied”.

77 In the present case, no relevant error is identified and the impositions on the individual counts and the enveloping effective total sentence fall well within the ambit of sound exercise of Williams DCJ’s sentencing discretion. I include in that observation the partial accumulation of sentence for the unrelated offence, the effect of which I would in the circumstances pertaining to the appellant, categorize as mild. No lesser sentence than that received by the appellant was warranted.

78 I propose that the appeal against conviction be dismissed, leave to appeal against sentence granted, but that appeal also be dismissed.

79 SIMPSON J: I agree with Grove J.

80 BELL J: I agree with Grove J.

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