GP v R

[2016] NSWCCA 150

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	GP v R [2016] NSWCCA 150
Hearing dates:	1 July 2016
Decision date:	03 August 2016
Before:	Payne JA at [1]; McCallum J at [75]; Wilson J at [76].
Decision:	(1)   Ground 1 is dismissed; (2)   Leave to appeal refused on ground 2; (3)   Leave to appeal granted on grounds 3 – 5; (4)   Appeal dismissed on grounds 3 – 5.
Catchwords:	CRIMINAL LAW – appeal – conviction – whether evidence should have been admissible under an exception to Criminal Procedure Act 1986 (NSW) s 293 – meaning of “injury” which is “attributable to the sexual intercourse alleged to have been had by the accused person” – CRIMINAL LAW – appeal – sentencing – whether primary judge fell into Muldrock error – whether sentence manifestly excessive – appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54B Crimes Act 1900 (NSW) ss 66A, 409B, 578A Criminal Appeal Act 1912 (NSW) s 5 Criminal Procedure Act 1986 (NSW) ss 105, 293 Evidence Act 1995 (NSW) s 137
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Carr v The State of Western Australia [2007] HCA 47; 232 CLR 138 HG v The Queen [1999] HCA 2; 197 CLR 414 IMM v The Queen [2016] HCA 14; 90 ALJR 529 JAD v R [2012] NSWCCA 73 KG v R [2012] NSWCCA 10 Markarian v The Queen [2005] HCA 25; 228 CLR 357. Melbom v R [2013] NSWCCA 210 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v BA [2014] NSWCCA 148 R v Dimian (1995) 83 A Crim R 358 R v Henning & Ors (Court of Criminal Appeal (NSW), 11 May 1990, unrep) R v McGarvey (1987) 10 NSWLR 632 R v Morgan (1993) 30 NSWLR 543 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Texts Cited:	NSW Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW) (Report 87, November 1998)
Category:	Principal judgment
Parties:	GP (appellant) Regina (respondent)
Representation:	Counsel: G Wendler (appellant) S Dowling SC with L Coleman (respondent)   Solicitors: Van Houten Law (appellant) Solicitor for Public Prosecutions (respondent)
File Number(s):	2013/281256
Publication restriction:	Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of any information which might identify the complainant in this matter
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 10 February 2015 and 5 June 2015 Before: English DCJ File Number(s): 2013/00281256

Judgment

1. PAYNE JA: On 20 February 2015, following a nine day trial in the District Court before English DCJ, the appellant was found guilty by a jury of two counts of sexual intercourse with a child under the age of 10 contrary to s 66A of the Crimes Act 1900 (NSW).

2. On 5 June 2015, the appellant was sentenced to 16 years imprisonment with a non-parole period of 10 years and a balance of term of 6 years.

3. The appellant appeals to this Court on both conviction and sentence. Leave is required to raise grounds 2-5 (inclusive), but not ground 1 of the notice of appeal. For ease of reference I will refer to the applicant for leave in relation to grounds 2-5 of the notice of appeal and appellant in relation to ground 1 of the notice of appeal as “the appellant”.

Background

4. The complainant, MP, was the paternal niece of the appellant, GP. She lived in Blacktown with her parents and three siblings. The age of the complainant at the time of these offences was an issue at trial, however, the Crown case was that MP was 3 or 4 years old.

5. Between 1 February 2006 and 9 May 2007, the appellant visited MP’s family home. The Crown case was that during that visit the appellant engaged in two acts of sexual intercourse with MP, being a child under the age of 10.

6. MP reported the incidents to her aunt, KP, and another adult, JD, in early 2012. The complainant subsequently participated in three interviews with the police.

7. At the beginning of the trial the appellant sought to cross-examine MP about the contents of her original complaint and to suggest to her that another family member and not the appellant had assaulted her. The primary judge refused this application on the basis that cross-examination of MP about her prior sexual experience was precluded by s 293 of the Criminal Procedure Act 1986 (NSW) and no relevant exception applied. This ruling is at the heart of this appeal.

The evidence of complaint about GP

8. MP was born on 25 June 2002. She was 12 years old at the time of the trial.

9. The complainant and her siblings were staying with their aunt, KP and her then-partner, JD, during school holidays in 2012. One evening, KP and JD had taken the children to dinner, but JD took the complainant home as she did not feel well. When JD and MP were at the house, the complainant first disclosed incidents of abuse to JD. Before the jury, JD gave the following evidence:

Q. …what did you talk about?

A. I just asked her, “Is there anything wrong?”

Q. And what did she say?

A. She said that she didn’t like, enjoy being at [GP’s] place.

…

Q. And what did you say when she told you she didn’t like being at [GP’s] place?

A. I asked her, “Why is that?”

Q. And what did she say in response if anything?

A. Somewhere along the lines that she wasn’t comfortable being there.

Q. Did you ask her why again?

A. Yes, and she started to cry…

Q. Apart from words, did she do anything else?

A. Just cried, in tears a lot and she started to panic a bit.

(emphasis added)

10. That evening, after KP brought the other children home from dinner, JD asked MP to tell KP what she had said. Relevantly, KP’s oral evidence of this conversation was as follows:

Q. Now you had a conversation with your niece [MP] in the room, is that right?

A. Yeah.

Q. And at some point in the conversation did she say something to you about your brother [GP], the accused?

A. Yes.

Q. What did she say?

A. Well when I walked in she was crying…And she was wiping her tears away…

(emphasis added)

11. KP’s oral evidence made two further references to the complainant’s distress in the course of telling her what had happened.

12. On the same evening, the complainant also told her siblings what had happened. In his statement to police, which was played to the jury, MP’s eldest brother said, “And then she was, like, bawling her eyes out”.

13. Some time later, MP disclosed the allegations to her parents. Her mother gave evidence before the jury that “she was just too distraught to talk”.

14. The primary judge referred to this evidence in her summing up:

When [JD] was giving her evidence she gave evidence that the complainant was particularly distressed when she was talking to her in the bedroom on that particular night.

You also heard from [KP] and [NC] that the complainant was distressed when she was speaking to them about her allegations. Distress rarely amounts to corroboration. It is a matter for you what weight you give to the evidence of the complainant’s distress and any inferences you draw from it but the evidence of distress can only be used as evidence of consistency of the complainant’s evidence if you are satisfied that other explanations for the distress can be excluded.

If you do find that the distress was genuine and consistent with the evidence of the complainant, then that evidence can be an aid in assessing the credibility of the complainant, depending on the view you take.

It may indicate that the distressed behaviour is consistent with the events being related to the various Crown witnesses. But, you can only use the evidence of distress as evidence of consistency of conduct, if you are satisfied that other explanations for distress can be excluded.

MP’s interviews with the police

15. MP participated in three interviews with the police. The second and third of those interviews were played to the jury.

16. On 24 February 2012, MP was first interviewed by police about a complaint regarding NP, MP’s cousin, which had emerged after the complaints about GP. Originally MP’s mother had intended herself to speak to GP before the allegation was made to the police. Thus, the initial subject of the first interview was NP. MP stated that NP had told her to take off her clothes and dance while he filmed it, before he rubbed her “private”. In the course of this interview MP also told police what GP had done to her.

17. In a second interview with police on 15 March 2012, MP stated that she had come to talk about “really bad stuff” involving her uncle [GP]. MP said that at the time of the offences, between 1 February 2006 and 9 May 2007, GP was minding MP and her younger sister.

18. One evening, after MP had a shower, she walked into her bedroom to get dressed. MP stated that the appellant followed her into the room, picked her up and placed her on a table with her legs off the edge of the table. The appellant, using his hands, rubbed her “private” with his “doodle” and “put his penis up my private”. MP stated that when his penis entered her “it hurt…and afterwards it would bleed”.

19. The appellant stopped the assault when he saw MP’s mother returning from the shops through MP’s bedroom window. The appellant told MP she could not tell anybody about what had happened because it was a game between the two of them.

20. MP also gave evidence that the night before the bedroom incident, while she was being minded by the appellant, she had a bath.

21. While MP was in the bath, the appellant came into the bathroom and closed the door behind him. He sat on the toilet and began rubbing her genitals with his left hand. Her legs were near the tap. MP’s younger sister came into the bathroom, and asked “what are you doing to [MP]?” MP told police that the appellant was putting his fingers into her vagina.

22. MP was also interviewed a third time, on 23 January 2014. At this time she was 11 years old. The evidence she gave at this interview was broadly consistent with what she had said in the second police interview.

23. The evidence was that the appellant visited MP’s home on occasion but did not live at the house. MP did not tell anyone about what the appellant had done to her prior to telling JD:

because I was worried that people would think I was a liar or that – yeah, I was just worried that people would think I was a liar and I was worried that like, they would do something like, to GP and like, hurting him …

24. Despite the ruling by the trial judge under s 293 of the Criminal Procedure Act which will be addressed below, GP’s counsel was permitted to cross-examine MP about whether she had seen NP wearing similar clothing to what she described the appellant as wearing on the day of the incident in the bedroom. MP did not accept that it was NP who had done those things to her, or that he was the person she was identifying. MP denied that she was wrong in her evidence that GP digitally penetrated her or put his penis in her vagina.

The decision of the trial judge

25. At the trial an application was made by counsel for the appellant to cross-examine the complainant about her prior sexual history, relying on the exception in s 293(4)(c) of the Criminal Procedure Act.

26. Section 293 of the Criminal Procedure Act provides, relevantly:

(1) This section applies to proceedings in respect of a prescribed sexual offence.

…

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

…

(c) if:

(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

….

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

27. The trial judge held that the appellant was not permitted to cross-examine the complainant. This is the subject of ground one of the appeal.

28. The trial judge refused to make an order under s 137 of the Evidence Act 1995 (NSW) excluding the evidence of MP’s complaints to members of her family and her distress in speaking to them about the sexual assaults by GP. Section 137 provides:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

29. This is the subject of ground two of the appeal.

Consideration of conviction appeal

Ground one of the appeal

30. Ground one of the appeal provided:

The Court erred in law by ruling that evidence relating to MP’s prior sexual experience or activity involving NP was not within the exception in s 293(4)(c)(i)(ii) [sic] of the Criminal Procedure Act 1986 (NSW) and therefore inadmissible thereby precipitating a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

31. It was submitted by the appellant that evidence of “fear” and “anxiety” were each an “injury” which was “attributable to the sexual intercourse alleged to have been had by the accused person” within the meaning of s 293(4)(c).

32. Counsel for the appellant particularly relied upon the passage in R v Dimian (1995) 83 A Crim R 358 at 367 where Hunt CJ at CL said:

I reject the narrow interpretation for which the Crown contends. The section must, as I have already said, be construed broadly and in accordance with the purpose for which it was introduced. Reading par (c) in that way, and particularly taking into account the width to be given to the phrase “attributable to … injury”, I am satisfied that the evidence was admissible pursuant to that paragraph and that leave to cross-examine should have been granted.

33. Counsel for the appellant also referred to Simpson J’s discussion of s 293(4)(c) in JAD v R [2012] NSWCCA 73 at [82]:

On the appeal, the Crown fairly conceded that a psychological condition such as that suffered by the complainant comes within the term "disease or injury" for the purposes of s 293(4)(c)(ii). The suffix to that subsection must, therefore, be considered - the evidence is admissible, provided that its probative value outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

34. Neither of the cases cited assists the appellant in the present case. Both cases are factually very different and there is no principle established in either case which would have the effect that evidence of a complainant crying or exhibiting anxiety when describing an alleged sexual assault years after the event is a relevant “injury” which was “attributable to the sexual intercourse alleged to have been had by the accused person”.

35. In JAD, the Crown conceded that the complainant’s psychological condition was a “disease or injury” for the purposes of s 293(4)(c)(ii). The condition afflicting the complainant in that case – hearing voices, suffering symptoms of depression and suicidal ideation – bears no relationship to the limited evidence of MP’s distress when she disclosed the assault to JD and members of her family.

36. In Dimian the facts were that the 14 year old victim of the alleged sexual assault had engaged in consensual sex with her boyfriend immediately prior to the assault. After escaping her attacker, the victim made an immediate complaint to a security guard, who called the police. The victim was observed by the guard, the police and later by her mother to have scratches, cuts and indentations on her skin and face and to be extremely distressed and dishevelled. The Crown submitted in that case that “injury” within the meaning of s 409B(3)(c) of the Crimes Act 1900 (NSW) (a predecessor section to s 293(4)(c)) was limited to physical injury caused directly by sexual intercourse, such as damage to the complainant’s genitalia. The Crown in that case, however, also sought to rely on the complainant’s dishevelled and injured state to corroborate her allegations. The evidence of the earlier consensual sex was held to be relevant to whether her dishevelled and injured state could be attributed to the alleged assault, or whether it could be explained by the events involving the complainant and her boyfriend earlier in the evening.

37. It was in that context that Hunt CJ at CL was prepared to construe s 409B(3)(c) such that “injury” included more than physical injury caused directly by sexual intercourse. In the passage relied upon by the present appellant, it is likely that in stating that the exceptions in s 409B(3)(c) should be given a “broad” construction, all that his Honour meant was that “injury” was not to be construed as only referring to physical injury directly caused by sexual intercourse.

38. I do not accept the present appellant’s submission that by the reference to “broad construction” given to the exception in s 409B(3)(c) in Dimian, his Honour meant to introduce any prima facie approach to the construction of the exceptions to the prohibition which can be applied to the construction of s 293. None of the three cases referred to by his Honour in Dimian about this point support the assertion that his Honour was intending to introduce any prima facie “broad” approach to the construction of the exceptions to the prohibition which can be applied to the construction of s 293:

1. In McGarvey (1987) 10 NSWLR 632 at 634, his Honour described the exception then appearing in s 409B(3)(c) as “directed to a very limited range of circumstances” which are relevant to the presence of, inter alia, disease.

2. In Henning (Court of Criminal Appeal (NSW), 11 May 1990, unrep), the Court was addressing the question of whether leave to cross-examine should be given in circumstances where a prior sexual history between the complainant and the alleged perpetrator of the assault was asserted.

3. In Morgan (1993) 30 NSWLR 543 at 551, Mahoney JA (with whom Gleeson CJ and Sully J agreed) was addressing the question of whether the offence and a later act of intercourse were “a connected set of circumstances”. Having discerned an ambiguity, his Honour found that the ambiguity should be resolved in a way favouring the liberty of the accused.

39. A further reason for caution in adopting too readily any notion that a “broad” construction of the exceptions in s 293 is necessarily appropriate is that the prohibition in s 293 and the exceptions thereto have been through many statutory amendments and iterations. The version of the prohibition considered by Hunt CJ at CL in Dimian was repealed following a review of s 409B by the NSW Law Reform Commission (Report 87) and a replacement section inserted into the Criminal Procedure Act in 1999, where it appeared as s 105. That replacement section did not adopt the form of the section contained as “recommendation 2” at page 147 of the Law Reform Commission Report. The section was renumbered, having effect as s 293 from 2003 and further amended in 2005.

40. Section 293, in its present form, clearly strikes a balance between competing interests being, on the one hand the interest of preventing distressing and humiliating cross-examination of sexual assault victims about their prior sexual history and, on the other, the interest of permitting an accused person to cross-examine victims about defined aspects of their sexual history in the circumstances prescribed in the exceptions contained within s 293.

41. In those circumstances, an approach to construction which seeks to discern a single purpose, and construing the legislation as though it pursued that purpose to the fullest extent possible, may be contrary to the manifest intention of the legislation: Carr v The State of Western Australia [2007] HCA 47; 232 CLR 138 per Gleeson CJ at [5].

42. I would add that the danger of that approach is particularly acute in the present case where, on the appellant’s submissions, it is the exceptions to a clear prohibition which are asserted to be the subject of a prima facie “broad” construction, so as to comply with the purpose of the legislation. The effect of such a construction would be to promote the interest reflected in the exceptions to s 293 above the interest reflected in the general prohibition contained in s 293(3). Such an approach is erroneous.

39. Construction of s 293(4)(c) should not be approached on the basis of any prima facie rule of construction. The clear legislative prohibition in s 293(3) and the statutory exceptions to that prohibition which follow should be construed according to their terms and in light of the subject matter, scope and purpose of the legislation. The fact that the statute can be said to relate to penal proceedings is part of its context and therefore relevant to the task of construing the statute in accordance with established principles of statutory construction: Alcan (NT) Alumina Pty Ltd v Commr of Territory Revenue [2009] HCA 41; 239 CLR 27 at 49.

40. The present is a clear case where the exception in s 293(4)(c) does not apply. “Fear” and “anxiety”, without more, do not fall within the description of an “injury” which was “attributable to the sexual intercourse alleged to have been had by the accused person” within the meaning of the section.

41. Evidence that the complainant cried when she disclosed the sexual assaults to JD and members of her family is not an “injury” which is “attributable to the sexual intercourse alleged to have been had by the accused person” within the meaning of s 293(4)(c). Section 293(4)(c) does not apply to the fleeting display of distress demonstrated by the complainant in the present case when recounting the facts of the assault to family members.

42. Whilst I am prepared to accept that a recognised psychological condition may be an “injury” for the purposes of section s 293(4)(c), it is unnecessary finally to decide that question in the present case. In this case, counsel for the appellant conceded that evidence that the complainant cried when she disclosed the sexual assaults to JD and members of her family is plainly not evidence of a recognised psychological condition.

Ground two of the appeal

47. The appellant’s second ground of appeal was that:

The trial judge erred in law by ruling that evidence of sexual assault complaints made by MP should not be confined to MP’s complaints to police.

48. The appellant accepted that leave to appeal was required to advance this ground under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

49. The appellant in his written submissions, albeit faintly, submitted that if evidence of the complainant’s prior sexual experience was not admissible under one of the exceptions to s 293, then the only complaint evidence that should have been admitted was the police interviews with MP. The unfairness is submitted to arise because the appellant was not able to “explore before the jury the full forensic picture”, leading to a risk the jury would give the evidence of MP crying greater weight than it deserved.

50. In oral submissions to this Court, Counsel for the appellant explained the nature of this ground as follows:

If [the trial counsel] was properly prevented pursuant to [s] 293 from introducing or proceeding to cross-examine the complainant concerning NP…the Court should have limited the evidence of complaint on the basis of the application of [s] 137 [of the Evidence Act] in the special and particular circumstances of the case.

51. I am unable to see that in the present case there was any real danger of unfair prejudice to the defendant in the admission of evidence of MP’s distress when she disclosed the assault to JD and members of her family. The suggested possible misuse of that evidence by the jury seems to me far-fetched, particularly given the careful directions of the trial judge, referred to above.

52. The evidence does have some probative value in demonstrating distress on the part of MP in proximity to meeting with the person she accused of this offence. I would not conclude that the probative value of that evidence was outweighed by any danger of unfair prejudice to the defendant.

53. There may be cases where the interaction of s 293 of the Criminal Procedure Act and s 137 of the Evidence Act raise difficult and important issues. This is not such a case. A case involving those issues would likely involve a close consideration of the decision of the High Court in IMM v The Queen [2016] HCA 14; 90 ALJR 529 and, perhaps, HG v The Queen [1999] HCA 2; 197 CLR 414, in particular the judgment of Hayne J. None of those issues were raised or explored by counsel for the appellant in the present case. Consideration of those issues should await a case in which those issues are raised by the parties and the Court has heard argument about them.

54. In the circumstances of this case, I would refuse leave to appeal under this ground of appeal.

Consideration of sentence appeal

55. The appellant raised three grounds of appeal relating to the sentence imposed, labelled grounds 3 – 5 in his notice of appeal.

Ground three

56. The appellant submitted that the trial judge fell into so-called “Muldrock” error by engaging in an erroneous two step sentencing process: Muldrock v The Queen [2011] HCA 39; 244 CLR 120, at [28].

57. In the sentence judgment, her Honour set out the procedural history of the matter, and the applicable maximum penalty and standard non-parole period for an offence contrary to s 66A of the Crimes Act, before detailing the facts of the offences as she found them to be, and giving a thorough account of the appellant’s subjective circumstances. She then turned to an assessment of the objective gravity of the offences, consideration of which occupies over two pages of the transcription of her Honour’s eight page sentence judgment.

58. From that, the appellant has identified two paragraphs which he contends establish “Muldrock” error. Those paragraphs are as follows:

The first offence, being the digital penetration of the complainant’s vagina is an offence I find falls below the mid-range of objective seriousness as envisioned by the legislature. I have departed from imposing the standard non-parole period for the reasons already set out in these remarks on sentence, but in particular I have taken into account the apparent low level of intellectual functioning of the offender.

The offence of penile / vaginal penetration of a four year old is much more serious. It resulted in the child experiencing pain, bleeding, and a torn hymen, consistent with an act of penile / vaginal penetration. It is an offence falling at the mid-range although slightly below that envisaged by the legislature, also for the reasons alluded to. Only sentences of full-time custody will suffice.

59. Isolating that portion of the judgment from the whole, the appellant argues in his written submissions that her Honour imposed the sentence she did by asking “whether there were reasons for not imposing the [standard non-parole period] for the offences and whether the offences fell within the midrange of objective seriousness”.

60. That submission impermissibly analyses the impugned paragraphs divorced from their context in the judgment. It ignores the careful and detailed consideration of all features relevant to the determination of sentence that preceded them.

61. As this Court has frequently said, it is necessary to read fairly the whole of a sentencing judgment, and analyse what is said as a whole: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [43].

62. Reading her Honour’s judgment fairly and as a whole, I would reject the appellant’s contention. The trial judge did not engage in a two-stage sentencing process contrary to the approach prescribed in Muldrock. It is apparent in the passages to which attention was drawn that her Honour was doing no more than complying with the statutory obligation imposed upon her by s 54B(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to record her reasons for setting a non-parole period which was less than the standard non-parole period fixed for such an offence, and the factors taken into account. Rather, reading the judgment as a whole it can be seen that the primary judge engaged in the instinctive synthesis approach consistent with Markarian v the Queen [2005] HCA 25; 228 CLR 357.

63. The correct approach to the use of the standard non-parole period after the decision in Muldrock is that described by Basten JA, in KG v R [2012] NSWCCA 10, at [18] ‑ [19]:

Since Muldrock, it is clear that, even where the standard non-parole period is relevant, it cannot have "determinative significance" and it might be said, as in Muldrock itself, that it cannot have much weight at all in the circumstances of this case: see Muldrock at [32].

Had the trial judge given any significant weight to the standard non-parole period, it may well be he would have erred. However, it does not appear that it had significant weight in the circumstances of the case. The standard non-parole period was seven years; the starting point for his calculation of the overall sentence was more than two years below the standard non-parole period; both the sentence and non-parole period imposed were so far below the standard non-parole period that it is not possible to infer that the standard non-parole period was given any significant weight in the exercise of sentencing.

64. An examination of the non-parole periods actually imposed in this case shows that the six year non-parole period imposed for count one, and the nine year non-parole period imposed for count two, were both significantly less than the standard non-parole period of 15 years. In my view her Honour did not give determinative significance to the standard non-parole period and no Muldrock error has been established.

65. I would reject this ground of appeal.

Ground four

66. Complaint was made by the appellant that in the context of describing the offences generally the primary judge noted that “these offences were committed in the sanctity of the children’s home”. It is not a fair reading of her Honour’s reasons to conclude that she took this into account as an aggravating factor pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act. A very similar observation to that made by the sentencing judge was found not to be an error in Melbom v R [2013] NSWCCA 210.

67. On a fair reading of the Remarks on Sentence, there is nothing to support the conclusion that her Honour regarded this matter as an aggravating feature of the offences.

68. This ground of appeal should be rejected.

Ground five

69. The final ground of appeal concerning sentence is that the sentence was manifestly excessive.

70. In my view the appellant has not succeeded in demonstrating that the sentence was manifestly excessive.

71. There are a number of aggravating features of the appellant’s offending which would increase the scale of seriousness of the offence of this type. The absence of additional physical violence and threats does not to operate in mitigation. What is being done by the offender is not less serious because it could have been worse, as explained by McCallum J in R v BA [2014] NSWCCA 148 at [33]:

The use of force would have been an aggravating factor but I do not think its absence could sustain the conclusion that the offending was at the lower end of the range. An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust.

72. The appellant does not challenge the sentencing judge’s assessment of the objective seriousness of the offences. The offences were correctly described by the sentencing judge as heinous and involving a gross breach of trust against a very young child utterly incapable of defending herself or avoiding the assaults.

73. Given the seriousness of the offending, the breach of trust involved, the very young age of the complainant and the relative lack of compelling subjective features in the appellant’s subjective case it cannot be said that, taking into account a maximum penalty of 25 years imprisonment, the sentence imposed was plainly unreasonable or unjust.

Orders

74. For the foregoing reasons I propose the following orders:

Conviction appeal

1. Ground 1 is dismissed;

2. Leave to appeal refused on ground 2;

Sentence appeal

1. Leave to appeal granted on grounds 3 – 5;

2. Appeal dismissed on grounds 3 – 5.

75. McCALLUM J: I agree with Payne JA.

76. WILSON J: I have had the advantage of reading in draft the judgment of Payne JA, with which I agree. I wish to add a few brief observations relating to ground 1, the complaint concerning the refusal of the trial judge to permit cross-examination of the complainant as to sexual history, her Honour having held that s 293 of the Criminal Procedure Act precluded it.

77. Section 293(3) provides a prohibition on the admission of evidence that discloses or implies that a complainant in a sexual assault trial has or may have had sexual experience, or a lack of such experience. The provision provides for some exceptions to the prohibition, including evidence of injury to the complainant attributable to the alleged act of sexual intercourse: s 293(4)(c)(ii).

78. Evidence of a complainant’s sexual reputation or history can only be led if it falls within one of the exceptions referred to in s 293(4), and the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

79. The section (and its predecessor, s 409B of the Crimes Act) was introduced by the Parliament as a means of limiting the circumstances in which a complainant in a sexual assault trial could be questioned about sexual history and reputation, thus protecting such witnesses from the humiliation and distress which questioning of that nature could occasion: R v Henning & Ors (Court of Criminal Appeal (NSW), 11 May 1990, unrep), at 68-69.

80. It also prevents a line of questioning which is frequently entirely irrelevant to the facts in issue.

81. Here, the appellant seeks to characterise evidence of the distress exhibited by the complainant when speaking of the alleged assault and alleged perpetrator as “injury” for the purposes of enlivening s 293(4)(c)(ii), and opening the door to cross-examination about sexual matters unconnected with the offences alleged.

82. The word “injury” is not defined in the Criminal Procedure Act, and so its meaning is to be construed by reference to the purpose and object of the legislation, and the ordinary and grammatical sense of the word in its context: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, per French CJ at [4]. In ordinary usage, “injury” refers to some harm or damage sustained by a person or thing.

83. Having regard to those parameters, it is difficult to see how the appellant could possibly make good his contention that the physical expression of temporary emotional distress – tears – could ever be regarded as an “injury” attributable to a specific sexual act. To do so requires more than the broad interpretation of “injury” contended for; it requires the true meaning of the word to be so distorted as to be ignored altogether.

84. As Senior Counsel for the Crown submitted, to regard evidence that a complainant cried when disclosing a sexual assault as injury attributable to that assault is “to strain the natural meaning of the words in the section and undermine the object of the Act, which is to protect complainants from humiliating and distressing cross-examination”.

85. The fact that a complainant cried or became distressed when relating an alleged sexual assault may be evidence of conduct which is generally consistent with what might be expected of a person complaining of such an offence, but it is not evidence of injury attributable to the alleged offence.

86. The authorities of Dimian and JAD referred to by the appellant, and summarised above by Payne JA, offer no support for the proposition advanced by the appellant. The facts of each of those cases are quite different to those pertaining here, and neither provides any basis for a conclusion that distress could or should be regarded as injury for the purposes of s 293.

87. In my view, the trial judge was entirely correct in the approach she took to the construction of the section, and in her conclusion that distress was not injury attributable to the alleged sexual intercourse.

88. This ground is wholly lacking in merit.

89. I agree with the orders proposed by the presiding judge.

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Decision last updated: 03 August 2016