Greenaway v R

[2021] NSWCCA 253

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Greenaway v R [2021] NSWCCA 253

Hearing dates:

30 August 2021

Date of orders:

1 November 2021

Decision date:

01 November 2021

Before:

Macfarlan JA at [1];
Walton J at [90];
Wilson J at [135]

Decision:

(1)   Grant leave to the applicant to appeal against his convictions and sentence.

(2)   Dismiss the appeals.

Catchwords:

EVIDENCE – tendency evidence – criminal proceedings – applicant charged with historical sexual offences against six complainants – applicant an officer in NSW juvenile justice system and complainants young female inmates – whether uncharged sexual acts admissible as tendency evidence – ss 97, 101 Evidence Act – correctness standard of review – whether significant probative value substantially outweighed prejudicial effect – standard of proof to be applied to uncharged acts in multi-complainant case – sufficient similarities for cross-admissibility of tendency evidence in relation to all counts

EVIDENCE – exclusion of evidence – advance ruling made excluding evidence of psychologist witness under s 192A Evidence Act – evidence related to different inmates and different officer to those in this matter – evidence not relevant under s 55 Evidence Act – evidence properly excluded

SENTENCING – appeal against sentence – severity – whether aggregate sentence of imprisonment excessive – need for House v The King error – whether sentencing judge sentenced in accordance with sentencing practices at time and considered delay – overall no indication that sentence is manifestly excessive

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW), ss 59, 61, 63, 76, 79

Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Criminal Procedure Act 1986 (NSW), s 142

Evidence Act 1995 (NSW), ss 55, 97, 100, 101, 192A

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

Cases Cited:

ABR (a pseudonym) v R [2020] NSWCCA 33

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Clarke v R [2021] NSWCCA 236

Decision Restricted [2021] NSWCCA 201

Doyle v R; R v Doyle [2014] NSWCCA 4

Hamilton v R [2020] NSWCCA 80

Henderson v R [2016] NSWCCA 8

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Kirby v R [2021] NSWCCA 162

Long (a pseudonym) v R [2021] NSWCCA 212

Magnuson v R [2013] NSWCCA 50

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37

Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463

R v AC [2018] NSWCCA 130

R v Cattell [2019] NSWCCA 297

R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451

R v MJR (2002) 54 NSWLR 368

R v Shore (1992) 66 A Crim R 37

R v Todd [1982] 2 NSWLR 517

Rogerson v The Queen, McNamara v The Queen [2021] NSWCCA 160

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Vagg v R [2020] NSWCCA 134

Vuni v R [2006] NSWCCA 171

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Noel Greenaway (Applicant)
Regina (Respondent)

Representation:

Counsel:
P Skinner / M Voleynik (Applicant)
B Hatfield (Respondent)

Solicitors:
Longton Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/00168561

Publication restriction:

Statutory non-publication order on the identity of each of the complainants under s 578A Crimes Act 1900 (NSW) and/or s 15A Children (Criminal Proceedings) Act 1987 (NSW); and on the identity of child witnesses under s 15A Children (Criminal Proceedings) Act 1987 (NSW).

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 97

Date of Decision:

9 April 2020

Before:

Weinstein SC DCJ

File Number(s):

2016/00168561

Judgment

1. MACFARLAN JA: Commencing on 17 June 2019 the applicant, who is now aged 84, was tried in the District Court before a judge and jury on an indictment charging him with 26 separate offences (and two alternative charges) committed against six complainants between 1964 and 1973.

2. Some of the charges were of non-sexual physical assaults and others were of sexual assaults. The applicant was alleged to have committed them upon young female inmates whilst he was an officer in the NSW juvenile justice system.

3. Twenty-two of the counts in the indictment (including the two in the alternative) charged offences against five complainants, referred to by the pseudonyms DC, RB, JB, KP and RF, incarcerated in the Parramatta Girls Training School between 1964 and 1967. The complainants were aged between 16 and 18 years at the time of the alleged offences. The applicant was then aged between 27 and 29 and was the relieving deputy superintendent at the school.

4. The other six counts charged offences against a sixth complainant, referred to by the pseudonym MS, who was incarcerated between 1971 and 1973 at a different juvenile justice institution for girls, the Ormond School. At the time of the alleged offences she was aged between 12 and 15. The applicant was then aged between 33 and 35 and was the superintendent of the school.

5. At the close of the Crown case the jury returned directed verdicts of not guilty on Counts 4, 5, 8 and 10 in the indictment. At the end of the 15 week trial, the jury returned verdicts of not guilty on six further counts (including two counts which had alternatives). These six verdicts included a not guilty verdict on Count 1 which was the only count alleging an offence against the complainant DC. After a number of days of further deliberation and after the trial judge informed them that they could do so, 11 jurors returned a majority verdict of guilty on each of the remaining 18 counts (including the two alternative counts).

6. In summary, the counts on which the applicant was found guilty were as follows:

Complainant RB

Counts 2 and 3: common assault contrary to s 61 of the Crimes Act 1900 (NSW)

Counts 6, 7, 9 and 11: indecent assault on a female contrary to s 76 of the Crimes Act

Complainant JB

Count 12: assault occasioning actual bodily harm contrary to s 59 of the Crimes Act

Counts 14 and 16: common assault contrary to s 61 of the Crimes Act

Complainant KP

Count 18: assault occasioning actual bodily harm contrary to s 59 of the Crimes Act

Complainant RF

Count 20: assault occasioning actual bodily harm contrary to s 59 of the Crimes Act

Count 21: rape contrary to s 63 of the Crimes Act

Count 22: buggery contrary to s 79 of the Crimes Act

Complainant MS

Count 23: indecent assault on a female under 16 years contrary to s 76 of the Crimes Act

Counts 24, 25, 26 and 28: rape contrary to s 63 of the Crimes Act

7. The trial judge subsequently sentenced the applicant to an aggregate term of imprisonment of 20 years commencing on 30 September 2019, with a non-parole period of 10 years.

8. At the trial, the Crown called each of the six complainants to give evidence, as well as a number of friends and acquaintances of the complainants, in addition to one family member. The Crown also called Dr Loretta de Plevitz, a psychologist who worked at the Parramatta School from 1964 to 1966. Her evidence is the subject of one of the grounds of appeal (Ground 5).

9. The defence case was that none of the offences had occurred. The applicant gave evidence and called eight other persons as witnesses.

10. The applicant seeks leave to appeal against his convictions on Grounds 1-5 set out below. He needs leave because those grounds do not raise questions of law alone (s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)). In addition, he needs leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the successor to rule 4 of the Criminal Appeal Rules) to rely on Ground 3, as the point with which it is concerned was not taken at the trial. The Crown contends that the applicant requires such leave in respect of Ground 2 as well. The applicant also seeks leave to appeal against his sentence on the ground that the aggregate sentence of imprisonment that his Honour imposed is “excessive”.

11. The applicant’s proposed grounds of appeal against his convictions are as follows:

1. The trial judge erred in admitting into the trial as tendency evidence the “uncharged acts” of a sexual nature alleged to have been committed by the applicant upon DC.

2. The trial judge erred in admitting into the trial as tendency evidence the “uncharged acts” of a sexual nature alleged to have been committed by the applicant upon RF.

3. The trial judge erred in the terms of the direction he gave to the jury as to the standard of proof that it was to apply to the uncharged acts before they could be used as tendency evidence.

4. The trial judge erred in admitting the evidence in relation to the counts concerning the Parramatta Girls Training School and the evidence in relation to the counts concerning the Ormond School as cross-admissible to each other for use as sexual tendency evidence.

5. The trial judge erred in excluding evidence proposed to be adduced by the defence from the Crown witness Dr de Plevitz.

The complainants’ evidence at trial

12. In light of the nature of the applicant’s proposed grounds of appeal, it is necessary to set out the following summary of the complainants’ evidence in support of the counts upon which the applicant was convicted. The summary is taken from the Crown’s written submissions on appeal:

Count	Date (year) / location	Nature of allegation (applicant = A)
Count 2 (s 61) common assault	1965-1966 PGTS [Parramatta Girls Training School]	The A was alleged to have taken RB to a cell where he made her undress, pushed her, slapped her around the face and pulled her hair (he was also alleged to have made her masturbate his penis although the charged act was limited to the physical assault).
Count 3 (s 61) common assault	1965-1966 PGTS	Later the same day (as Count 2) the A was alleged to have accompanied RB down to the shower room where he tried to kiss her and pushed her head into the wall. He then tried to put his penis into her vagina (again the charged act was limited to the physical assault).
Count 6 (s 76) indecent assault	1965-1966 PGTS	It was alleged that the A took RB to a cell that was upstairs in a building (a Segregation cell). On the first day she was in that cell he told her to get undressed, she refused. He removed some of his clothes, he told her to get undressed again and she removed her uniform but left on her bra and underpants. He said “No get them off”. She did. The A then started kissing her. She told him to get away. He started kissing her and tried to put his penis in her vagina. She kept her legs crossed to prevent him.
Count 7 (s 76) indecent assault	1965-1966 PGTS	Immediately after what is described for Count 6 (and as part of the same incident) the A was alleged to have made RB masturbate his penis. He ejaculated onto her breasts. She called him “a dirty thing” and then asked if she could go and have a shower. The A refused but got a cloth or a hanky and wiped “himself first and then me.” RB said that the applicant used to tell her to keep her mouth shut and said, she thought, that he then left.
Count 9 (s 76) indecent assault	1965-1966 PGTS	The allegation was that on the second or third day RB was in the cell the A returned to it. The complainant said she thought she was standing at the back corner of the cell and that the A pushed her to the floor and knelt in front of her. The A rubbed his penis in between her breasts. She said in the course of doing so he was having trouble getting it (his penis) between her breasts and he stood up, with her against the back wall and continued to rub his penis up and down between her breasts. He did so until he ejaculated onto both her face and breasts.
Count 11 (s 76) indecent assault	1965-1966 PGTS	The allegation was that on the last day RB was in the cell the A returned to the cell. He made her strip off, using force to remove her clothes. She fought against him. She said she kept her legs crossed and folded her arms but he was too strong for her. The A lay her down on the mattress in the cell and made her suck his penis for a few minutes. He ejaculated into her mouth. He told her to keep her mouth shut as nobody would believe her.
Count 12 (s 59(1)) assault occasioning actual bodily harm	1965-1966 PGTS	JB gave evidence of an occasion just before Christmas 1965 when she was talking back at the A on the covered way. She said that he grabbed her by the scruff of her neck, catching her hair in his hands as he did so and pulled her up the covered way to the punishment room. When they got to the punishment room [he] punched her a number of times to her chest and arms. She said that the A had a set of keys in his pocket. Holding the keys, the A hit her to the left side of her face. The blow caused a previous scar from a schoolyard accident to open up and bleed.
Count 14 (s 61) common assault	1965-1966 PGTS	Alternative to count 13. [Count 13 said: On another occasion during the same admission [to PGTS] JB said that she was coming back from the toilet block towards the covered way when she was [hit] in the back. When she looked up she saw the A standing over her. He kicked her a number of times. As she went to get up the A pushed her down again. Her nose hit the pavement causing it to bleed. The A kicked her again. When he let JB get up he called her a slut and walked off towards the covered way.]
Count 16 (s 61) common assault	1965-1966 PGTS	Alternative to count 15. [Count 15 said: JB gave evidence of an occasion when she had been instructed to attend the Superintendent’s office after talking at muster. When she did so she walked in to find Mr Mayhew having sexual intercourse with an unidentified female inmate. Mayhew yelled at her and she ran out of the office. She sat on the covered way for a period before going to the dining room. The A came and got her and pulled her by the arm back to Mayhew’s office. Mayhew punched her in the stomach and the A hit her in the back of the head. Both were hitting her, the A was hitting her to the back of her head. The A held JB’s hands behind her back and Mayhew punched her in the face causing her nose to bleed. The A let her go and she fell forward. Mayhew threatened her before she was dragged out of his office.]
Count 18 (s 59(1)) assault occasioning actual bodily harm	1966-1967 PGTS	KP gave evidence of an occasion in August, which she believed was about [7 to 14] days after a meeting with the District Officer … when she was one of a number of inmates taking part in a cricket match next to the covered way. The A had a bat and walked off past her. As he did so they had a short exchange of words. The A became very angry. He hit her in the face with a closed fist. The blow knocked her to the ground. The A advanced towards her so KP got up off the ground and ran towards the dining room. He grabbed the front of her dress and punched her numerous times in the face in the dining room. KP said she dropped to the floor. She had blood coming from her eyebrow. She ran out of the dining room and up the covered way. The A caught up with her about half way up the covered way and dragged her up to the main building and down a flight of stairs to an area under the main building where she was detained for an extended period – she believed about 3 weeks. As a result of the assault by the A, KP had blood coming from the outside of her left eyebrow and her eyes were swollen such that she couldn’t see.
Count 20 (s 59(1)) assault occasioning actual bodily harm	1966-1967 PGTS	RF said that on [one] occasion she was standing out on punishment when the A summoned her into his office. He said various things to her (of which she gave evidence) before punching her in the mouth. The punch caused a cut or split to her lip which bled. She said that she still has the scar on the inside of her bottom lip. The incident took place in the office opposite the waiting room.
Count 21 (s 63) rape	1966-1967 PGTS	RF said that there was an occasion when she was in the shower block cleaning the floors of the shower recesses. It was night time, after the girls had showered. The A entered and spoke to her. She stood up. She said that the next thing she remembers is that she was tied around the wrists with a red tie over the bench in the shower room. The A pulled her bloomers down and penetrated her vagina with his penis from behind.
Count 22 (s 79) buggery	1966-1967 PGTS	RF said that the last time the A sexually assaulted her was in the loft. She was in the loft white-washing the walls as punishment. There was nobody in the loft with her. The A came up to the loft and said something to her. He backed her up against the wall and turned her around. He pulled down her pants and inserted his penis into her anus. RF said that it only seemed like 2 or 3 times that he pushed it in and out and that when he pulled it out she lost control of her bowels. He swore and called out to an officer downstairs that she had shit herself.
Count 23 (s 76) indecent assault	1971 OTS [Ormond School]	MS said that one evening during her first admission she was taken by an officer from the recreation room to the A’s office. The officer left her there. The A yelled at her and came out from behind his desk. His penis was out (of his pants). The A took her hand and placed it on his penis and made her masturbate him. He ejaculated onto her hand.
Count 24 (s 63) rape	1971 OTS	The next night (following Count 23) the A entered the isolation cell. He had penile vaginal intercourse with MS as she lay on the mattress. Immediately afterwards the A said words to the effect of “Don’t tell anybody. No one will believe you if you tell anybody”. When the A left the cell, she sat in the corner and cried. She recalls scratching a scab on the top of her left arm where a tattoo had been removed.
Count 25 (s 63) rape	1972 OTS	MS gave evidence that during her second admission she got into trouble on the quadrangle with [a girl named AH]. They were joking around and [AH] pushed her. She was sent to isolation by the A and taken there by an officer. The A came to the isolation cell later that night and sexually assaulted her (inserting his penis into her vagina). When he finished he told MS that he could keep her there as long as he wanted.
Count 26 (s 63) rape	1972 OTS	On another occasion during the same admission MS was scrubbing concrete when the A approached her and kicked her bucket over. The A told her to mop it up. She told him to mop it up himself. The A placed her in isolation again. During the night the A entered the cell and inserted his penis into her vagina. As he did so she was crying. When he had finished he got off her, told her to clean herself up and said that if she ever told anyone that no one would believe her because they all knew she was a liar.
Count 28 (s 63) rape	1972-1973 OTS	During her third admission MS was sent to isolation by Mr Knight for having drunk vanilla essence that had been stolen from the stores by another inmate. At night the A came to the cell and put his penis into her vagina. When he had finished [he] told her to clean herself up and called her a filthy pig. MS told the A she was going to tell and he said who would believe you.

The tendency notice

13. Section 97(1) of the Evidence Act 1995 (NSW) provides as follows:

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

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

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

14. Section 101(2) of the Evidence Act relevantly provided at the material times that in a criminal proceeding “[t]endency evidence about a defendant … that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”.

15. Prior to the trial the Crown gave a Notice to the defence in accordance with s 97 of the Evidence Act that it relevantly contended that:

“Evidence of each of the complainants regarding assaults with a sexual element, indecent assaults and sexual assaults (in the nature of rape and buggery) by the accused is admissible as tendency evidence in respect of Counts 1, 3-11, 21, 22, 23-28. (Note: ‘Assaults with a sexual element’ refers to the allegations which are the subject of Counts 3-5)”.

16. The Notice identified as follows the tendencies sought to be proved:

“[4](a) The accused’s tendency to have a particular state of mind, namely a sexual interest in teenage girls under his supervision in state institutions in which he worked (the young female ‘inmates’); and

(b) A tendency to use his position of authority as a Deputy Superintendent or Superintendent of the institution to obtain access to the young female ‘inmates’ so that he could act on that sexual interest by indecently or sexually assault them; …

Note: Paragraphs 4(a) and 4(b) comprise the sexual tendencies of the accused”.

17. The Notice asserted that the sexual tendency evidence had the following common features:

“[a] The complainants were each ‘inmates’ detained at State Institutions that the accused worked at in senior roles – as Deputy Superintendent at Parramatta Girls Training School and Superintendent at the Ormond School in Thornleigh. They were under his supervision and he exercised a position of authority over them.

[b] The complainants were all females aged between 13 and 17 years of age.

[c] Each of the acts of assault, indecent and sexual assault took place while the inmate was in institutional confinement.

[d] The accused committed each of the assaults, indecent assaults and sexual assaults against the complainants while they were in in secluded, isolated areas of the institution where only he and the complainants were present. On each of the charged occasions (except for Count 1), they were in those areas in the course of being punished.

[e] The indecent/sexual assaults were accompanied by acts of physical violence and/or threats.

[f] The accused’s conduct in relation to each of the complainants demonstrates an absence of grooming or escalated intimacy. (The accused did not attempt to cajole the complainant’s participation in the act, rather he achieved sexual gratification through the use of physical violence and the abuse of his position of authority).”

18. The Notice identified the evidence to be called to prove the tendencies by reference to listed police statements of the six complainants.

19. During the trial, the trial judge ruled that the Crown was entitled to rely upon the evidence for tendency purposes in accordance with its Notice. It follows from the High Court decision in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61] and subsequent decisions of this Court (see for example Vagg v R [2020] NSWCCA 134 at [45]; Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160 at [544]) that it is for the appellate court to determine for itself whether evidence is admissible for tendency purposes in accordance with ss 97 and 101 of the Evidence Act. As a result, the parties to the present application for leave to appeal accepted that it was unnecessary to give close attention to the reasons given by the trial judge for allowing evidence to be used in that way.

20. To give effect to Bauer, the Court is required to apply the “correctness standard” of appellate review identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, rather than the standard identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 (see Rogerson at [542]-[548]; Decision Restricted [2021] NSWCCA 201 at [17]). The correctness standard was described in Warren v Coombes at 552 as follows:

“The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.”

21. The evidence given by the complainants at the trial substantially accorded with the description of it in the Tendency Notice and in his summing up the trial judge directed the jury that the evidence was available to be used by it in the manner described in the Notice.

DISPOSITION OF THE CONVICTION APPEAL

GROUND 1: THE TRIAL JUDGE ERRED IN ADMITTING INTO THE TRIAL AS TENDENCY EVIDENCE THE “UNCHARGED ACTS” OF A SEXUAL NATURE ALLEGED TO HAVE BEEN COMMITTED BY THE APPLICANT UPON DC

DC’s evidence of uncharged acts

22. During the trial, immediately prior to DC being called to give evidence, the trial judge ruled that the Crown could use the evidence described in [65] and [66] of DC’s police statement dated 13 August 2014 for tendency purposes in accordance with the Tendency Notice. In his written judgment, which was provided after DC had given her evidence, he ruled that [72] of that statement could also be so used. Those paragraphs of DC’s police statement were as follows:

“65. I remember Mr Greenaway would come up from behind me when I was on the covered way dancing and he would grab me by bloomers and dress and lift me off the ground. This was done in front of the other girls who I would be with on the covered way with me. He would run me over to the side of the covered way and drop me onto my feet again. When I was on my feet he would put his hand between my legs from behind my back side and touch me on my vagina over the top of my bloomers. It was very quick when he touched me and he only touched me on the vagina over the top of my bloomers. He would grope my vagina by opening and closing his hand quickly. Mr Greenaway started doing this to me during my first time at Parramatta Girls Home and he did it on at least eight [occasions].

66. The first time he touched my vagina I thought it was just an accident. However when it happened on more than one occasion I felt like he was singling me out and it made me feel uncomfortable and nervous. I felt uncomfortable and started to become scared of Mr Greenaway. Sometimes he would go to touch my vagina and feel my sanitary pad, and would leave me alone for a while.

…

72. After the food storeroom incident with Mr Greenaway he never indecently touched me again. He would still grab hold of my bloomers and dress if they were falling down, or clipped me around the back of the head and say, ‘points, socks down.’ Mr Greenaway was never easier on me or harder on me after the assault than any of the other girls, he just did his job, and treated me … the same as anyone else. Mr Greenaway never spoke to me again about the incident [in] the food storeroom. I was released from Parramatta Girls Home on 30 May 1964 and returned on two more occasions in 1964 and 1965, but never had any further indecent interactions with Mr Greenaway. Even though I had no further indecent involvements with Mr Greenaway, I never trusted him and did notice him watching me on a number of occasions. I think he may have felt I would report the incident to someone.”

23. The “food storeroom incident” referred to at the commencement of [72] is a reference to an act of which DC gave evidence which gave rise to Count 1 on the indictment in respect of which the applicant was acquitted. The Crown’s summary of the nature of the Count 1 allegation is as follows:

Count 1 (s 76) indecent assault 1964-1965 PGTS The A was alleged to have indecently assaulted DC … in the food storeroom by pushing her onto a bag of potatoes, attempting to take her bloomers/underwear off and then masturbated himself and ejaculated on to her.

24. At the trial, DC gave evidence of the earlier uncharged acts (as described in [65] and [66] of her statement). As the Crown summarised it, her evidence was to the following effect:

“during the time when the complainant (‘DC’) was an inmate at the PGTS, on occasions during breaktime, DC and other girls would dance under a covered way. On a number of such occasions the applicant would come and grab her by her ‘Bombay bloomers’ and ‘grope’ her by touching her in the area of her ‘bum’ and vagina. She estimated that such conduct ‘could have occurred about 8 times’ and that other persons were around when it happened (T239-240).”

25. In cross-examination, DC said, consistently with her police statement, that “the first time” it happened, she “probably thought it was an accident to start off with, but it happened several times after that” so she later knew that it was not accidental.

Relevant legal principles

26. Recent High Court authority establishes the following propositions in regard to the application of ss 97 and 101 of the Evidence Act (as to which see [13]-[14] above).

27. First, the reliability or credibility of the evidence sought to be used for tendency purposes is not relevant in assessing “significant probative value” unless the evidence is “inherently incredible or fanciful or preposterous”, which is not alleged to be so in the present case (IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [52]-[59]). The same approach is applicable to the determination for the purposes of s 101 of the Evidence Act of whether “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” (see Bauer at [81]-[82]; Rogerson at [544]-[546]).

28. Secondly, the evidence has “significant probative value” if it makes “more likely, to a significant extent, the facts that make up the elements of the offence charged” (Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40] quoting R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at 485 [125]). A qualification to this is that “it is not necessary that the disputed evidence has this effect by itself”, as its effect when taken with other evidence may be considered (ibid).

29. Thirdly, as stated in Bauer at [58], there must be some feature which links the act the subject of the tendency evidence with that sought to be proved to establish an element of a charged offence:

“In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.” (Emphasis added; citations omitted.)

30. Fourthly, the Court must take the following two steps in determining the admissibility of evidence for tendency purposes (per McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [26]):

“As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way.”

31. Fifthly, “[g]enerally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value” (McPhillamy at [27]).

32. Sixthly, in relation to the balancing exercise required by s 101(2), the term “prejudicial effect” with which that section is concerned conveys the “idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way” (Bauer at [73]). The majority of the High Court in Hughes outlined ways in which tendency evidence in a criminal trial may occasion such prejudice, including where the evidence may be given “disproportionate weight” by the jury, where the jury’s assessment may be “clouded by the jury’s emotional response” to the evidence, or where the evidence requires “an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years” (at [17]). The ameliorating effect of any directions that may be available should also be considered (see ABR (a pseudonym) v R [2020] NSWCCA 33 at [37]-[39]).

Consideration

33. The applicant submitted that it was relevant to the Court’s consideration of whether DC’s evidence of uncharged acts had “significant probative value” for the purposes of s 97 that her evidence was uncorroborated and given “within a context in which the credibility of the whole of her testimony was in issue”. In respect of the latter, the applicant pointed to the jury’s acquittal of him on Count 1 which, so the applicant said, suggested that it was unconvinced of DC’s credibility. These submissions however cannot stand in the face of the decision in IMM (see [27] above) which authoritatively establishes (subject to a presently immaterial exception) that the tendency evidence under consideration must be taken at its highest, without regard to considerations of its reliability or credibility (see also Bauer at [69]).

34. The applicant then submitted that the uncharged acts were not of “significant probative value” because they were “of a much less[er] order of criminality” than the relevant charged acts and that DC herself was not even sure whether the first act of the applicant that she described (see [22] and [25] above) had a sexual connotation. It is apparent however that the subsequent repetition of the act made it plain to DC that the first act was not an accident and involved a sexual element. This illustrates why DC’s evidence of the uncharged acts was of potential importance to the jury’s deliberations. As the Tendency Notice indicated, when taken with the other evidence, the evidence tended to demonstrate that the applicant had a sexual interest in the complainants and was prepared to act on it. That the earlier acts of which DC gave evidence were of lesser criminality than subsequent acts which the applicant was alleged to have committed did not deprive that evidence of significant probative value in proving the tendencies alleged.

35. The applicant further noted that the uncharged acts of which DC gave evidence “were alleged to have been committed up to seven years earlier” than the acts in relation to MS. This raises a question which is addressed below in relation to Ground 4. For the reasons there stated, I do not consider that the passage of time or the existence of a gap in time between the acts alleged to have been committed at the Parramatta Girls Training School and those alleged to have been committed on another complainant at the Ormond School deprived evidence of the former of “significant probative value” in relation to the latter.

36. I do not accept the applicant’s further submission that there were insufficient similarities between DC’s evidence of uncharged acts and the evidence of the acts the subject of the charges in the indictment to indicate that the former was of substantial probative value in proving the latter.

37. As foreshadowed in the Tendency Notice (see [17] above), the sexual acts of which evidence was given had, in the main, the following common features:

“i)   the offences involving conduct of a sexual nature were committed on young female inmates of the institutions;

ii)   the offences were committed in isolation and/or in the context of the inmate being punished;

iii)   there were a variety of sexual acts to gratify the applicant but many were repeated with different inmates;

iv)   many of the acts were accompanied by moderate levels of coercive violence;

v)   inmates were threatened or intimidated to ensure silence;

vi)   offences did not involve grooming or escalated sexual activity;

vii)   the offences involved abuse of position with accompanying violence/intimidation/threats”.

38. It is not determinative that the uncharged acts of which DC gave evidence did not have all of these features (for instance, those acts did not have the features identified in paras (ii) to (vii) except to the extent that they involved abuse of position and consequent implicit intimidation to preclude complaint). That the evidence related to the commission of sexual acts on a young female who was incarcerated in an institution in which the applicant had a position of authority was sufficient to render the evidence valuable evidence in support of the tendencies alleged in the Tendency Notice.

39. Using the language of Bauer (see [29] above) the uncharged acts had sufficient features in common with, or that linked them to, the charged acts.

40. In relation to the balancing exercise required by s 101, the applicant contended that by relying on DC’s evidence of “uncharged acts”, the Crown “was putting to the jury, through the very first witness called in a long trial, that the applicant was a serial ‘groper’, a loaded word that was used throughout the trial”. He submitted that the prejudicial effect of this evidence of DC was high and that it was almost impossible for the complainant to challenge it. He then submitted that the trial judge referred to the possible prejudicial effect of the evidence “in an unduly restrictive way” by confining the possibility of prejudice to “two broad categories”, being “first that there is a risk that the jury might have an emotional response to the uncharged acts, and second that there is a risk that the jury might substitute the uncharged acts for the charged acts or be unable to distinguish between them”. He submitted by reference to Hughes v The Queen for example at [17] that there are “several more ways” in which prejudice may occur including “by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years”.

41. In response, the Crown submitted that the word “grope” was a word first used by DC in her evidence and that it was not introduced by the Crown prosecutor. I accept its submission that the word is commonly understood in the community and that it was used in a not inaccurate and not inappropriate way to describe the conduct of which DC gave evidence. Its use was not intemperate or inflammatory.

42. There was in my view no unfair prejudice that flowed from DC’s evidence of uncharged acts. Any prejudice to the applicant in this context was simply that which flows from evidence which is contrary to the other party’s case and was not therefore “prejudicial” in the sense that that term is used in s 101 (see [32] above).

38. The applicant further submitted that it was “virtually impossible” to test DC’s evidence of uncharged acts but this was contradicted by what occurred at the trial. There was substantial cross-examination of DC concerning the evidence and the cross-examiner put to her that she was lying and had manufactured her evidence.

39. For these reasons, Ground 1 should be rejected.

GROUND 2: THE TRIAL JUDGE ERRED IN ADMITTING INTO THE TRIAL AS TENDENCY EVIDENCE THE “UNCHARGED ACTS” OF A SEXUAL NATURE ALLEGED TO HAVE BEEN COMMITTED BY THE APPLICANT UPON RF

RF’s evidence of uncharged acts

45. At the trial, RF gave evidence that the applicant had assaulted her on at least 12 occasions. She said that she had been penetrated digitally in her vagina and anus and that this had occurred when she and the applicant were alone. She gave detailed evidence of the first of these assaults, which she said had occurred in a waiting room at the school. Separately, she gave evidence of the applicant physically assaulting her on two occasions (Counts 19 and 20) and sexually assaulting her on two other occasions (Counts 21 and 22).

46. The Crown’s Tendency Notice referred, so far as uncharged acts were concerned, to a statement of RF of 23 March 2016. This referred in turn to the sexual assaults in very general terms, using the expressions “vague memories” and “vague memory”. On 16 July 2019, which was the 23rd day of the trial, the Crown served a supplementary statement of RF containing the following more specific assertions:

“4. In paragraphs 95 to 97 of my written statement dated 23 March 2016 I speak about being sexually assaulted by Mr Greenaway on several occasions. These assaults included penile and digital penetration of my vagina and anus. I am unable to say exactly how many times the sexual assaults occurred, but I can say that I believe it happened on at least 12 occasions. Most of the time it occurred it would be in a situation where I was more isolated and not in a large group of girls. For instance, I would be on the covered way standing or scrubbing as a punishment, or already in isolated detention. Mr Greenaway would call me out on the covered way by pointing to me and using his hands to indicate I had to come with him or saying to me as he pointed ‘You. In.’ It happened so frequently that I would always try to keep my eyes down, so he didn’t call out or point to me. It sounds terrible now, but I would keep my eyes down and hope he called out someone else, so I would be left alone.

5. The sexual assaults would take place sometimes in the waiting room, and sometimes in his office or the isolation block. There was one specific time in the shower block that I recall that is detailed in paragraphs 98 to 105 of my original statement dated 23 March 2016.”

Consideration of Ground 2

47. The applicant’s submissions in support of this ground of appeal relate, in the main, to the lateness of service of the statement of 16 July 2019.

48. The applicant first submitted that there had been a breach of the requirement of s 97(1)(a) of the Evidence Act to give “reasonable notice” of a proposal to use evidence for a tendency purpose.

49. The material contained in the statement of 16 July 2019 went significantly beyond that contained in the earlier statement which was referred to in the Tendency Notice of 21 May 2019, if for no other reason than that the later statement (and RF’s evidence at the trial) professed a firmer recollection than the “vague memories” referred to in the earlier statement. It could not therefore be said that the Tendency Notice itself gave notice of the Crown’s intent to call the evidence. The amplified evidence of uncharged acts given by the 16 July 2019 statement did not however appear to require or justify the defence making further enquiries to enable it to meet the evidence. The lateness of its notification would not therefore appear to have prejudiced the defence. This contrasted with additional complaint evidence contained in the statement that the Crown foreshadowed leading which after objection it indicated it would not press.

50. Certainly, the defence made generalised complaints about late service and complained that the material in it appeared inconsistent with the earlier references to “vague memories” only. The defence did not however take any specific objection that the “reasonable notice” requirement of s 97 was not satisfied in the case of the additional statement.

51. As a result, in allowing RF’s evidence to be used for tendency purposes, the trial judge did not address any such specific complaint. If he had had to, and had concluded that reasonable notice had not been given, he would have had to consider whether to exercise his discretion under s 100 of the Evidence Act to dispense with the requirement (see also s 97(2)(a); R v AC [2018] NSWCCA 130). There is every reason to think that his Honour would, in his discretion, have decided to do that, bearing in mind that the defence’s principal concern with the statement was its generality, in referring in an unspecific way to numerous instances of sexual assault, and its firmness of its contents being inconsistent with the earlier described “vague memories”. Neither of these matters arose out of the late service of the statement and may have justified a refusal to dispense with the requirement of notice.

52. The difficulty for the applicant in these circumstances is that, as the objection was not taken at trial, rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (formerly rule 4 of the Criminal Appeal Rules) applies. The circumstances I have described above do not suggest the applicant has suffered any injustice which would necessitate leave to raise the point for the first time on appeal being granted (see Hamilton v R [2020] NSWCCA 80 at [52] and Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [72]). Accordingly that leave should be refused.

53. On appeal the applicant also alleged breaches of the pre-trial disclosure obligation in s 142 of the Criminal Procedure Act 1986 (NSW) (and said that this warranted sanction under s 146 of that Act) and of prosecutorial obligations of disclosure. Neither contention should be accepted. As to the former, the statement was served as soon as it was obtained by the Crown and as to the latter there does not appear to have been any information in the Crown’s possession which required disclosure before it occurred. In particular, there is no evidence to suggest that the Crown obtained the additional information from RF before about the date the statement was served.

54. The applicant also asserted on appeal that RF’s evidence of uncharged acts did not meet the requirement under s 101(2) of the Evidence Act that “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” because the evidence was too general to be able to be tested in cross-examination. However, as the Crown pointed out, such generalised evidence is commonly admitted as uncharged tendency evidence. If the evidence were more specific it would ordinarily form the basis of charges. The arguable inconsistency between RF’s evidence in chief and her description in her police statement of her “vague memories” was, as would be expected, the subject of vigorous cross-examination during which RF’s reliability and credibility were challenged. The cross-examination that occurred thus did not support the applicant’s contention on appeal that it was not possible to test RF’s evidence.

55. RF’s more detailed evidence of uncharged acts in her 16 July 2019 statement clearly had significant probative value and the applicant does not, at least not expressly, assert the contrary. As the applicant was unable to identify any unfair prejudice to him, other than that the subject of the arguments with which I have dealt, he has not made good his challenge to the admission of the evidence.

56. Although it is not embraced by the terms of this ground of appeal, the applicant submitted in this context that the trial judge committed a “significant error” in not giving the jury at the time of admission of RF’s evidence of uncharged acts (and also DC’s evidence of uncharged acts) a specific direction as to the manner in which it was entitled to use the evidence. The applicant did not cite any authority that requires a direction to be given at that time. The time at which directions should be given is very much dependent on the circumstances of the particular case (see Long (a pseudonym) v R [2021] NSWCCA 212 at [6]-[8] and [71]-[75]; compare Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [80]). Moreover, defence counsel at the trial did not seek that a direction be given when the relevant evidence was adduced. In these circumstances, no conclusion of error can be arrived at and in any event rule 4.15 of the Supreme Court (Criminal Appeal) Rules precludes the applicant raising the argument without leave, which should not be granted.

57. For these reasons, Ground 2 should be rejected.

GROUND 3: THE TRIAL JUDGE ERRED IN THE TERMS OF THE DIRECTION HE GAVE TO THE JURY AS TO THE STANDARD OF PROOF THAT IT WAS TO APPLY TO THE UNCHARGED ACTS BEFORE THEY COULD BE USED AS TENDENCY EVIDENCE

58. In the course of his summing up to the jury, the trial judge referred to the evidence called by the Crown of uncharged acts and stated that for the jury to take them into account for tendency purposes the Crown did not have to establish beyond reasonable doubt that those acts occurred. His Honour however stated that in determining whether it was satisfied that the acts occurred, the jury should take into account the gravity of the allegations.

59. The applicant acknowledged that the High Court decision in Bauer at [86] constituted a significant hurdle for him to overcome in making good this ground of appeal. Relevantly, the High Court said in Bauer at [86]:

“… Contrary to the practice which has operated for some time in New South Wales (88), trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt (89). And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria (90).

…

(88)   See, eg, DJV v The Queen (2008) 200 A Crim R 206 at 217 [30] per McClellan CJ at CL (Hidden J and Fullerton J agreeing at 227 [58], [59]); R v FDP (2008) 74 NSWLR 645 at 654 [38]; DJS v The Queen [2010] NSWCCA 200 at [54]-[55] per Hodgson JA (Kirby J and Whealy J agreeing at [86], [87]).

(89)    Shepherd v The Queen (1990) 170 CLR 573 at 584-585 per Dawson J; Gipp v The Queen (1998) 194 CLR 106 at 133 [79] per McHugh and Hayne JJ; HML v The Queen (2008) 235 CLR 334 at 360-361 [31]-[32] per Gleeson CJ in diss on point; at 490 [477] per Crennan J in diss on point.

(90)    See Jury Directions Act, ss 61, 62; Beqiri v The Queen [2017] VSCA 112 at [121], [130]. “

60. The applicant sought to sidestep this conclusion in a number of ways.

61. First, he contended that Bauer was only concerned with single complainant cases and that in single complainant cases:

“it is the credibility of the same person that is to be assessed in considering both charged and uncharged acts, and the jury would apply a collective approach to everything the complainant has said when considering his or her credibility, particularly upon the ultimate issue of whether the elements of the charge were proved to the criminal standard.”

62. He submitted that the “same logic does not apply to multi-complainant cases” but provides no sensible reason for that being so. As I see it, the logic is relevantly the same in that the jury must be satisfied beyond reasonable doubt of the elements of the charge but do not have to be so satisfied in respect of each, or indeed any, piece of evidence that supports such a satisfaction, unless, as stated in Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56, a fact which is not an element of an offence is nevertheless an “indispensable link in a chain of reasoning towards an inference of guilt” (see now the subsequently enacted s 161A of the Criminal Procedure Act).

63. Secondly, the applicant submitted that in the present trial the Crown did in fact use the evidence of uncharged acts as indispensable links in a chain of reasoning leading to proof of the offences charged. He was not however able to identify any aspect of the record of the trial that supported that submission. On the contrary, it appears that the Crown sought to use the evidence as supportive of but not essential to its case.

64. Thirdly, the applicant relied on a sentence in the judgment of Gleeson CJ in HML v The Queen (2008) 235 CLR 334 at [32]; [2008] HCA 16 as follows:

“generally speaking, however, the indispensable link case apart, it is ordinarily neither necessary nor appropriate for a trial judge to give separate direction about the standard of proof of uncharged acts”.

65. Gleeson CJ however dissented on that point and arguably was in any event simply rejecting the submission that the jury needed to be directed that the uncharged acts needed to be proved beyond reasonable doubt (see Bauer at [86]). HML was a decision concerned with the common law and not with the provisions of the Evidence Act and cannot be treated as higher authority (particularly when it is a dissenting opinion that is relied upon) than the much more recent unanimous decision of the High Court in Bauer which contains no suggestion that it is inappropriate for a trial judge to give separate directions about the standard of proof of uncharged acts.

66. Fourthly, the applicant submits that the trial judge was unjustified in directing the jury to take into account “the gravity” of the allegations when considering the uncharged acts. This statement, which reflects the approach in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, was not inappropriate and in any event favoured the applicant by, if anything, imposing a higher standard than necessary.

67. Moreover, in relation to this last point and to the ground generally, the applicant’s arguments are in conflict with rule 4.15 of the Supreme Court (Criminal Appeal) Rules because the point (and the sub-points he makes) were not taken at the trial and he has demonstrated no reason why leave to raise any of them for the first time on appeal should be granted. This ground accordingly fails for want of a grant of leave under rule 4.15 but would in any event have failed on its merits.

GROUND 4: THE TRIAL JUDGE ERRED IN ADMITTING THE EVIDENCE IN RELATION TO THE COUNTS CONCERNING THE PARRAMATTA GIRLS TRAINING SCHOOL AND THE EVIDENCE IN RELATION TO THE COUNTS CONCERNING THE ORMOND SCHOOL AS CROSS-ADMISSIBLE TO EACH OTHER FOR USE AS SEXUAL TENDENCY EVIDENCE

68. In support of this ground the applicant submitted that the uncharged and charged acts concerning the five complainants who were incarcerated at the Parramatta School did not have sufficient features in common, or sufficient “linkage”, with the acts alleged in respect of the single complainant (MS) who was incarcerated at the Ormond School to render the evidence of the two groups cross-admissible.

69. The applicant’s principal argument was that any sexual tendencies evidenced by the alleged acts at the Parramatta School could not, because of the gap in time between the two groups of acts, be inferred to have continued to be in existence when the acts concerning MS allegedly occurred at the Ormond School, and that this deprived them of significant probative value.

70. The gap in question was between 1967 when the last alleged act occurred at the Parramatta School and 1971 when the first alleged act occurred at the Ormond School. During that period the applicant was employed at three juvenile justice institutions but, unlike the Parramatta and Ormond Schools, they had only young male inmates.

71. The applicant relied in particular on McPhillamy v The Queen (see [30] and [31] above). In that case the appellant appealed against his convictions of sexual offences committed against an altar boy who had been under his supervision after following him into a public toilet and molesting him. The Crown relied at the trial on tendency evidence given by two witnesses who had been boarders at a school where the appellant had been an assistant house master. They gave evidence that 10 years prior to the time when the charged acts allegedly occurred the appellant had committed sexual acts on them when they had gone to his bedroom to be comforted for homesickness. The High Court found that the evidence was not admissible for tendency purposes, the plurality stating:

“[31] … where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together [Hughes v The Queen (2017) 92 ALJR 52 at [64] per Kiefel CJ, Bell, Keane and Edelman JJ; R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [58]]. The suggested link in this case is the appellant’s tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over ‘A’, an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that ‘A’ was vulnerable in the way that ‘B’ and ‘C’ were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with ‘A’’s account that the appellant followed him into a public toilet and molested him.

[32] ‘B’’s and ‘C’’s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against ‘A’ to a significant extent [R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [58]]. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against ‘B’ and ‘C’ 10 years before, in different circumstances, and without any evidence other than ‘A’’s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that ‘A’ alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act. This conclusion makes it unnecessary to address the submissions respecting s 101(2) of that Act.”

72. As described above, in McPhillamy the two groups of acts were committed in very different circumstances from each other. In the present case however the relevant acts shared the important characteristic that they were all committed in state-run institutions on young girls incarcerated in them by the applicant who was in a position of authority.

73. There is a superficial analogy between the present case and McPhillamy in relation to a factor that the High Court treated as tending against the admissibility of the tendency evidence, namely, that in McPhillamy the boarding school acts were committed in private whereas the charged acts, although not apparently committed in the presence of anyone else, were committed in a public toilet. In the present case the earliest acts relied on (concerning DC) were committed in the presence of other inmates whereas later ones, including those at the Ormond School, were committed in private. When however the evidence at the present trial is considered as a whole (which is permissible – see [28] above) the nature of the acts of which DC gave evidence does not tend against cross-admissibility. Rather, the picture presented is one of a progression of acts from fleeting groping of DC in the presence of other inmates to more serious sexual misconduct with the other complainants in private, including MS at the Ormond School. Importantly, the evidence points to a continuing sexual interest of the applicant in young female inmates under his supervision and a tendency to act on that interest by committing progressively more serious conduct.

72. Unlike in McPhillamy, here the character of the applicant’s supervisory role was the same throughout (albeit at different schools) and the nature of the vulnerability of the young people was the same. Also unlike in McPhillamy, the approximate 4 year gap in time between the acts the subject of the tendency evidence and the charged acts was explicable by the absence of opportunity during the gap for the applicant to abuse young female inmates, he only having responsibility for male inmates during that period. In contrast, in McPhillamy the 10 year gap was unexplained and was therefore consistent with a diminution or disappearance of the tendencies during that time, rendering the evidence of the earlier acts of limited, if any, significance in determining whether the appellant had the relevant tendencies at the later time.

73. The applicant also pointed to the difference in ages between the complainants allegedly assaulted at the Parramatta School (aged 16 to 18 years) and MS who was allegedly assaulted at the Ormond School (aged 12 to 15 years). As well, the applicant pointed out that the difference between his age and the complainants at the Parramatta School was much less than that between himself and MS, both because of the later time at which the MS assaults allegedly occurred and because MS was younger than the other complainants at the time of the respective assaults on them. These are not however in my view differences of any present significance. In particular, they do not detract from the proposition that the sexual assaults of which evidence was given pointed to the existence of the tendencies identified in the Tendency Notice (see [16] above). The position might have been different if one group of complainants had been infants and the other teenagers but all of the complainants in this case were teenagers or on the threshold of teenage years.

74. For the reasons given above, there were sufficient similarities between all of the sexual acts (both charged and uncharged) of which evidence was given for them to have “significant probative value” in proving the tendencies alleged (see s 97 of the Evidence Act), including as between the acts alleged to have been committed at the Parramatta School and those alleged to have been committed at the Ormond School.

GROUND 5: THE TRIAL JUDGE ERRED IN EXCLUDING EVIDENCE PROPOSED TO BE ADDUCED BY THE DEFENCE FROM THE CROWN WITNESS DR DE PLEVITZ

77. This ground relates to an advance ruling given by the trial judge pursuant to s 192A of the Evidence Act that certain evidence proposed by the defence to be elicited in the cross-examination of a Crown witness, Dr Loretta de Plevitz, was inadmissible. Dr de Plevitz was in 1964 a trainee psychologist and after that a qualified psychologist. She worked at the Parramatta School for about two and a half years until April 1966 but only for two days a week.

78. The evidence that the defence proposed to elicit was to the following effect, as stated in Dr de Plevitz’s statement dated 22 April 2015 (although the first sentence of para [29] was not to be objected to):

“[29] I never witnesse[d] any corporal punishment at Parramatta. I remember when I was working there one day one or two girls came to my ‘office’ and were crying. I can’t remember if there were one or two girls, there and I don’t remember their names. I think they must have been there for some testing that I had to do for them- they wouldn’t have been allowed to come and see me of their own accord. They made some form of complaint to me that they had been ‘bashed’ by one of the officers there. They were crying. I can’t recall the name of the officer they named, but it was a male. I didn’t see any injuries on them.

[30] I went back to Head office and prepared a report about what I had been told by the girls. I submitted the report to my supervisor Dick Armstrong. I have a strong memory about being called in and spoken to about this report by three men in the office. I had the sense the men of the Department, being Dick Armstrong, Mr Moylan (deceased) and another male were questioning my judgment in this letter. I feel that they didn’t believe the girls allegations and were questioning me believing them.

[31] About five years ago I received a call from a private investigator in Sydney. He was acting for one or more women who had made a complaint of being assaulted at Parramatta Girls. I can’t remember this man’s name or who he worked for. He told me that he would be in touch but he never called back. He did send me an email of the typed letter with my signature that I had written about the girls’ allegation. I have given Detective Brown a copy of the correspondence I have received from this investigator and labelled them.”

79. The Crown also objected to the tender of documentation attached to the statement which identified the girls who made the complaint (none of whom was a complainant in the present trial) and identified the alleged perpetrator (Deputy Superintendent Mr Guilford; not the applicant).

80. The Crown also objected to the defence eliciting from Dr de Plevitz the final sentence of para [8] of what was contained as follows in her statement of 30 July 2019:

“[8] I have spent much of my life as a dedicated advocate for the marginalised people in society. If I had become aware or suspected in any way that girls were being raped or physically abused or mistreated at Parramatta GTS I would definitely have reported that, and would not hesitate to say so today. This is demonstrated by my willingness to submit my report of 24 March 1965, in relation to allegations of assault against Deputy Superintendent Mr Guilford.” (Emphasis added.)

81. The applicant submitted at trial and on appeal that this evidence would have been relevant to the credibility of the complainants insofar as they testified as to their reasons for their reluctance to complain at the time about the alleged sexual assaults on them and that:

“it was a central plank of the Crown case, extending beyond just the issue of why a girl may have been reluctant to complain, that there was a general climate of fear, and oppression pervading the Parramatta Girls Home at the time, and that this evidence met that contention head on.”

82. In response on appeal the Crown submitted that its case at trial did not include any suggestion that there was “a culture of impunity within the PGTS such that the applicant would have expected to ‘get with away with’ conduct of the type alleged regardless of complaint …”. As the applicant did not draw the Court’s attention to any material to suggest otherwise, this submission should be accepted.

83. It should also be accepted, as the Crown contended, that the proposed evidence did not satisfy the test for relevance stated in s 55 of the Evidence Act: relevant evidence is evidence “that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. The proposed evidence was not relevant because the fact that other complainants might have complained about other assaults (being physical rather than sexual assaults; and perpetrated by someone other than the applicant) to Dr de Plevitz who acted on them does not in any way contradict the complainants’ evidence that they were too afraid to complain, in circumstances where there was no evidence that any of the complainants knew the inmates who had complained, knew that they had complained or that they were aware that Dr de Plevitz had taken some action. Moreover, as the Crown submitted, that “Dr de Plevitz took action when a complaint was made to her does not logically or rationally affect the probability that other officers [or attending professionals] would have acted in a similar way” (Dr de Plevitz gave evidence that she was at the time in a team of six people working in the “psychology section” at the school). Further reducing the possibility of the proposed evidence having any relevance was first that only one of the complainants (DC) was at the Parramatta School when the complaint was made to Dr de Plevitz and she made her report and secondly that there was no evidence that DC had any contact with Dr de Plevitz.

84. In these circumstances, the following conclusions reached by the trial judge in his judgment of 8 August 2019 were correct:

“In my opinion, the evidence about complaints to Dr de Plevitz is not relevant to the issues before the court in this trial, and I adopt the Crown's reasoning that a complaint made to her by another complainant is not probative of what another complainant might have done. In particular, in my view, the state of mind of another complainant is not relevant to the state of mind of the complainants in this case. Furthermore, what Dr de Plevitz did or would have done cannot, in my opinion, be relevant to circumstances where there is no evidence that any of the complainants made a complaint about the accused or any other person to her.”

85. In conclusion, two other matters require mention.

86. First, on appeal the applicant contended that the trial judge was in error in accepting the Crown’s request for an advance ruling on the admissibility of the evidence that the defence had indicated it proposed to elicit from Dr de Plevitz in cross-examination. Section 192A of the Evidence Act however expressly sanctioned that course. To facilitate the efficient progress of trials and to diminish the possibility of inadmissible evidence being heard by a jury, the section authorises the Court to make advance rulings on, inter alia, the admissibility of evidence. The applicant did not refer to any authority, or any interpretation of s 192A, which would suggest that it was inapplicable to the circumstances before the trial judge.

87. Secondly, the applicant complained that in the course of her submissions to the trial judge the Crown prosecutor had erroneously described the facts in issue at the trial. Whether she did is however of no moment as it is not suggested that the trial judge committed the same error in his judgment of 8 August 2019.

DISPOSITION OF THE SENTENCE APPEAL

GROUND 6: THE AGGREGATE SENTENCE OF IMPRISONMENT THAT HIS HONOUR IMPOSED IS EXCESSIVE

88. For the reasons given by Walton J, I do not consider that the applicant’s proposed appeal against sentence has any merit.

CONCLUSIONS ON CONVICTION AND SENTENCE APPEALS

89. For the reasons given above, each of the applicant’s grounds of appeal should be rejected. I accordingly propose the following orders:

1. Grant leave to the applicant to appeal against his convictions and sentence.

2. Dismiss the appeals.

90. WALTON J: On 30 September 2019, a jury, by majority verdict, found Noel Greenaway (“the applicant”) guilty of 18 counts for charges (including two alternative counts) ranging from common assault contrary to s 61 of the Crimes Act 1900 (NSW) to rape and buggery: ss 63 and 79 of the Crimes Act respectively (a comprehensive list of offences is set out in a Table below).

91. The applicant sought leave to appeal his conviction for those offences pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (grounds 1 to 5 of the application for leave to appeal). The applicant also pursued an appeal against the sentence imposed for those offences by Weinstein SC DCJ (“the sentencing judge) on 9 April 2020 pursuant to s 5(1)(c) of the Criminal Appeal Act.

92. I have had the advantage of reading, in draft, the judgment by Macfarlan JA as to the conviction appeal brought by the applicant. I agree with his Honour’s reasons for the rejection of that appeal.

93. The remainder of the judgment concerns the appeal from the sentence imposed by the sentencing judge of an aggregate term of imprisonment of 20 years commencing on 30 September 2019 with a non-parole period of 10 years. There was a single ground of appeal – “the aggregate sentence of imprisonment that his Honour imposed is excessive”.

94. The resolution of that ground is greatly assisted by Macfarlan JA’s judgment on the conviction appeal. I adopt for the purposes of this judgment the relevant background of the conviction appeal including the counts with respect to which the applicant was found guilty, the background to the offending and the complainant’s evidence at trial as to those counts. I adopt the pseudonyms used for the complainants, RB, JB, KP, RF and MS.

95. By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ); Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443] (per R A Hulme J, with whom Bathurst CJ, Leeming JA and Hamill J agreed). This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Markarian at [27]; Vuni v R [2006] NSWCCA 171 (“Vuni”) at [33] (per Hoeben J (as his Honour then was), with Tobias JA and James J agreeing); Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman and R A Hulme JJ agreed). It is not to the point that the Court might have exercised the sentencing discretion differently: Obeid at [443].

96. Intervention is not warranted simply because the sentence is “markedly different” from other sentences that had been imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (“Wong”) at [58]; Obeid at [443]. Rather, there must be some misapplication of principle, even though when and how is not apparent from the reasons given in the impugned judgment: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong at [58].

97. It may be noted at the outset that there are aspects of the applicant’s submissions which do not sit comfortably with those principles in that they appear to involve an appeal based on patent errors. An illustration is the applicant’s submission that the sentencing judge failed to adequately deal with the question of delay to which I shall turn below.

98. As was stated in Clarke v R [2021] NSWCCA 236 at [236], if the applicant intended to pursue his application for leave to appeal in such a fashion, it would be desirable to bring a ground or grounds directed to specific error. It is sufficient for present purposes to note that the particular error adverted to by counsel for the applicant should be considered in the context of the manifest excess ground.

99. It should also be noted that counsel for the applicant placed considerable emphasis upon a proposition that the sentences indicated for particular offences were themselves manifestly excessive. It is well to recall in that respect the observations of Beech-Jones J (Harrison and Cavanagh JJ agreeing) in Kirby v R [2021] NSWCCA 162 at [45] as follows:

In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; “JM”) although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be “whether [or not] the aggregate sentence reflects the totality of the criminality involved” (JM at [40]).

100. In support of the submissions counsel for the applicant provided a Table of each of the offences for which the applicant was found guilty and the indicative sentence for each offence.

101. That Table will be useful for [disposition] of this ground. It was in the following form:

Count	Offence	Date	Age of Victim	Max penalty	Sentence
Count 2 RB	Common assault - s 61 Crimes Act	27/8/1965 - 17/3/1966	16 years	2 years imprisonment	9 months
Count 3 RB	Common assault - s 61 Crimes Act	27/8/1965 - 17/3/1966	16 years	2 years imprisonment	1 year, 2 months
Count 6 RB	Indecent assault on a female - s 76 Crimes Act	27/8/1965 - 17/3/1966	16 years	3 years imprisonment	2 years
Count 7 RB	Indecent assault on a female - s 76 Crimes Act	27/8/1965 - 17/3/1966	16 years	3 years imprisonment	2 years, 2 months
Count 9 RB	Indecent assault on a female - s 76 Crimes Act	27/8/1965 - 17/3/1966	16 years	3 years imprisonment	2 years, 2 months
Count 11 RB	Indecent assault on a female - s 76 Crimes Act	27/8/1965 - 17/3/1966	16 years	3 years imprisonment	2 years, 6 months
Count 12 JB	Assault occasioning actual bodily harm - s 59 Crimes Act	1/10/1965 – 3/4/1966	17 years	5 years imprisonment	1 year, 7 months
Count 14 JB	Common assault - s 61 Crimes Act	1/10/1965 – 3/4/1966	17 years	2 years imprisonment	9 months
Count 16 JB	Common assault - s 61 Crimes Act	1/10/1965 – 3/4/1966	17 years	2 years imprisonment	10 months
Count 18 KP	Assault occasioning actual bodily harm - s 59 Crimes Act	23/6/1966 – 25/3/1967	16 years	5 years imprisonment	2 years, 3 months
Count 20 RF	Assault occasioning actual bodily harm - s 59 Crimes Act	7/9/1966 – 16/7/1967	17 years	5 years imprisonment	1 year, 9 months
Count 21 RF	Rape s 63 Crimes Act	7/9/1966 – 16/7/1967	17 years	Penal servitude for life	10 years
Count 22 RF	Buggery – s 79 Crimes Act	7/9/1966 – 16/7/1967	17 years	14 years imprisonment	10 years
Count 23 MS	Indecent assault on a female under 16 years - s 76 Crimes Act	8/3/1971 – 29/10/1971	13 years	5 years imprisonment	3 years, 3 months
Count 24 MS	Rape - s 63 Crimes Act	8/3/1971 – 29/10/1971	13 years	Penal servitude for life	11 years
Count 25 MS	Rape - s 63 Crimes Act	18/2/1972 – 18/10/1972	14 years	Penal servitude for life	10 years
Count 26 MS	Rape - s 63 Crimes Act	18/2/1972 – 18/10/1972	14 years	Penal servitude for life	10 years
Count 28 MS	Rape - s 63 Crimes Act	21/12/1972 – 22/8/1973	15 years	Penal servitude for life	10 years

The Reasons for Sentence

102. In sentencing the applicant, the sentencing judge, after setting out his findings of fact and the content of victim impact statements and various aspects of the documentary evidence, referred to various sentencing principles and then made findings as to the objective seriousness of the offending, which he found was made up of many and differing facets. As to sentencing principles his Honour found at [45]-[52]:

45.   These offences were committed between 54 and 46 years ago. This means that they are historical offences which are, as a general rule, to be guided by consideration of sentencing patterns, so far as can be determined, that existed at the time the offences were committed. In argument, the Crown conceded that sentencing patterns of five decades in the past are extremely difficult to determine. I have done my best, with the limited resources available.

46. However, section 25AA of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) provides that the court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

47.   The essence of this provision is that I am required to apply current sentencing patterns and practices (for child sexual offences) having regard to what was described by the Attorney General in the second reading speech as “our modern understanding of the trauma caused to children by sexual abuse”.

48. With respect to these victims, there were offences with a sexual element committed against AB, GH and JK. Only JK was under the age of 16 at the time the offences were committed against her. The offence of rape is now abolished, but as per s25AA(5)(d) it has been substantially replaced with the offence of sexual assault (s61I), which is one of the offences set out in Division 10 section 25AA(5)(a).

49.   Accordingly, I am to have regard to the sentencing principles as they existed at the time of the offending for the offences committed against AB, CD, EF and GH, as they were above the age of 16 years at the time the offences were committed.

50.   By contrast, counts 23, 24, 25, 26, and 28 committed against JK are classified as child sexual offences, and I must deal with them in accordance with sentencing principles consistent with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

51. In accordance with s25AA(2), I note that the standard non-parole period for a child sexual offence should be the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. These offences were committed long ago, before standard non-parole periods were introduced. I retain discretion to fix the non-parole period depending on the circumstances of the case. I accept that non-parole periods then imposed were generally in the order of one third to one half of the head sentence. (footnote omitted)

52.   I take into consideration the submissions of the Crown and the offender with respect to this issue.

103. As to those factors bearing upon the objective seriousness of the offences, his Honour identified the following matters:

(1)   The position of authority held by the offender at the time he offended against AB, CD, EF and GH was Relieving Deputy Superintendent at PGTS. He was one of three Senior Administrative Officers charged with the daily operation of the institution. At the time he offended against JK, he was the Superintendent at Ormond, where he exercised ultimate authority.

(2)   The position of authority occupied by the offender in this case was unique, and went beyond simply the care and supervision of the victims. Each of the institutions was, in effect, a correctional institution, albeit one said to have a remedial focus. While they were known as “reform schools,” each of the victims were committed to the institution by an order of a court and detained within high walls from which they were not permitted to leave, except under the direct supervision of institution staff. The offender knew this. In other words, he knew the victims were within an institution from which they could not leave.

(3)   Further, the offender was entitled to, and did give instructions to the victims (and other inmates) which they were obliged to follow. Those instructions would include having the victims confined to isolation or ordering that they accompany him to his office or the holding room. The offender abused that aspect of his position of authority at the institutions to isolate a number of the victims in order to provide an opportunity to offend against them.

(4)   Consideration of the unique position of authority occupied by the offender not only illustrates his direct abuse of that position, but the degree of the imbalance in the positions of the offender and the victims.

(5)   The offender was, by virtue of his position in the institutions, privy to the particular vulnerabilities of the victims and he exploited their vulnerabilities in his commission of the offences. The evidence in the trial establishes that, by virtue of his position, the offender had access to the files held for each inmate and therefore to information regarding their personal circumstances and the circumstances which led to their committal to the institution. In evidence, the offender accepted that, at both institutions, information contained within an inmate’s file included their background, their family circumstances, whether they had supportive or unsupportive families and whether they were state wards.

(6)   As exhibits tendered during the trial demonstrate, the victims’ files included reference to whether the victims were wards of the state (as CD, EF, GH and JK were) and the nature and extent of the relationships they had with surviving family members, particularly as those relationships were relevant to the question of placement upon discharge. I observed during the hearing of the sentence proceedings, there is a notable commonality between the victims in that each was vulnerable – being either wards of the state (CD, EF, GH and JK), from interstate (AB) and/or estranged from their parents and with a history of treatment in mental health facilities (CD).

(7)   The fact that the offender knew (by virtue of his position of authority) of the particular vulnerabilities of the victims speaks to the degree of his abuse of his position. At least in the case of GH and JK, it is plain that the offender deliberately exploited his knowledge of their vulnerability. He told GH when she threatened to reveal his abuse, “Go ahead, you’re only a state ward, nobody will believe you, you’re a slut, you’re worthless, nobody wants you”. The offender told JK that he could keep her there as long as he wanted and (on two occasions) that no-one would believe her if she told anyone (what he had done). There is no doubt that the offender knew of the personal circumstances of JK, as he was the author and signatory of significant pieces of correspondence throughout her three admissions.

(8)   It can be seen from the above that the offender was not only aware of the degree of estrangement of the victims from their families and therefore the very limited, if any, opportunity the victims had to make a meaningful complaint. By meaningful complaint, the Crown submitted, and I accept that its meaning is a complaint that would be believed and acted upon. As the evidence in the trial demonstrated, while contemporaneous complaints by the victims were limited (for the reasons expressed by each of them), the persons to whom they complained did not believe them and/or took no action.

104. Thus, his Honour also found that the offender was in a position of authority over each of the victims by virtue of his employment. Further, each complainant was unable to remove themselves from the institution or the applicant.

105. The sentencing judge found as an aggravating factor that each of the victims was vulnerable for the purposes of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). His Honour acknowledged the need to avoid double counting as between this factor and other factors related to sentencing such as the age of the victims.

106. The sentence judge’s overall findings as to the objective seriousness of the offending was as follows:

58.   I take into account the maximum penalties for each offence, which indicates the seriousness with which the legislature views such offences. That each instance of offending is of a high order of objective seriousness is both evident and an understatement.

59.   The offender offended over almost a decade, albeit with a break when he had no access to vulnerable girls when he was at Mount Penang. He chose to exploit his power over the victims at his place of work and from where they could not escape. He treated his victims with disdain and cruelty. Condign punishment is called for.

107. As to subjective considerations, his Honour made the following findings with respect to the applicant:

1. He had no prior convictions.

2. He was willing to participate in a sex offender program.

3. There was no evidence of remorse and the applicant shows no insight into his offending.

4. Given the applicant’s age he was unlikely to reoffend. He was assessed in the below average range for risk of sexual reoffending. His prospects for rehabilitation were low.

5. His Honour accepted the Crown submission that the Court was precluded from taking into account the applicant’s prior good character in respect of the child sexual offences by reason of s 21A(5A) of the Sentencing Procedure Act. In relation to the remaining counts to which s 21A(5A) did not apply, his Honour found that the applicant was entitled to “some limited leniency”. (The applicant contended that the character references described the applicant as a loving husband and a dedicated father and grandfather, and they all described the offences as being out of character.)

6. Regard was had to the principle of general deterrence. His Honour found that the applicant’s conduct was to be denounced.

7. The offences were “mostly opportunistic” and that the applicant “probably did not plan” any particular offence.

8. Dr Jane Lonie, neuropsychologist, interviewed and assessed the offender at Silverwater Correctional Complex on 30 January 2020 for 3.5 hours. Dr Lonie was of the opinion that Mr Greenaway’s speed of processing information had declined. She stated that previous findings of mild extrapyramidal dysfunction and the more recent history of falls and gait change, raise the possibility of an early stage neurodegenerative illness, such as Parkinson’s disease. She was of the view that the offender’s cognitive decline is of mild-moderate severity.

9. Dr Obeid, geriatrician, estimated the applicant’s life expectancy to be substantially less than the median life expectancy of an 82.25 year old man in Australia of 7.95 remaining years due to co-morbidities. Dr Obeid found that the applicant had chronic ongoing medical problems. However, the sentencing judge found the applicant’s health to be unremarkable for a man of his age and approached the evidence of Dr Obeid with some caution given his limited opportunity to examine the applicant.

10. As mentioned, delay featured as a component of the applicant’s application for leave to appeal his sentence. The sentencing judge’s reasons for sentence in that respect were as follows:

73.   There has clearly been significant delay in this case. The Crown acknowledges that delay is a relevant consideration on sentence. The offender is entitled to have the court take into account that he has not been convicted of any offences since 1973 and that he will serve his sentence as an older man. There is no evidence that the offender has suffered uncertain suspense as a result of the delay. Indeed, he has, as a result of the delay in reporting the matter to police, enjoyed freedom at a time when he might otherwise have been incarcerated.

74.   In any event, it appears to be well settled that the Todd principle (R v Todd [1982] 2 NSWLR 517) does not apply to a state of uncertainty experienced by an offender who remains silent and hopes that his offending will remain undetected: R v Cattell [2019] NSWCCA 297 at [140]; Elchiekh v R [2016] NSWCCA 225 at [58]; R v Spiers [2008] NSWCCA 107 at [37]-[38].

75.   Price J in R v Cattell [2019] NSWCCA 297 (at [138]), referring to the observation by Hoeben CJ at CL in Hornhardt v R [2017] NSWCCA 186, noted that it is well known that the sexual abuse of children causes a reluctance on the part of victims to come forward and make complaint. He endorsed the following observation by Whealy J in R v Moon (2000) 117 A Crim R 497 at [35]:

“It is not uncommon where a very young or vulnerable person is abused by an older person that the complaint does not emerge until many years later. It is the very nature of the relationship that, in many cases, leads to this repression and inhibition.”

76.   That observation is equally apt to the circumstances of this case. In this case, the offender committed offences against victims whom he knew to be both young and vulnerable. He exploited their youth and vulnerability (including their estrangement from their families) in an effort to convince them of the futility of any complaint. In deterring the victims from reporting his abuse to authorities, the offender got what he wanted. He escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that long period.

11. His Honour did not accept the submission made by defence counsel that the applicant has suffered extra-curial punishment by way of media scrutiny from being named during the Royal Commission.

12. His Honour had regard to COVID-19 considerations and noted that the applicant was in a particularly vulnerable age group. His Honour took into account the applicant’s concerns and anxiety would likely be heightened by the lack of visitors and the reduced capacity to remain in contact with friends and family.

108. His Honour found special circumstances and varied the statutory ratio from 75% to 50%. The sentencing judge took into account that it was the applicant’s first time in custody and that because he was of an advanced age, his custody will be more onerous.

Consideration

109. The applicant contended that the aggregate sentence was manifestly excessive for the following reasons:

1. the sentencing judge did not sentence in accordance with the sentencing practices at the time (in accordance with the principle from R v Shore (1992) 66 A Crim R 37) for any offences apart from those pertaining to MS;

2. the sentencing judge did not adequately deal with “delay”;

3. the indicatives sentences for counts 2, 3, 6, 7, 12, 14, 16, 18 and 20 were all manifestly excessive;

4. the indicative sentences for counts 21 and 22 in relation to RF should have been less than those in relation to MS (given the requirement under s 25AA(1) of the Sentencing Procedure Act).

110. I shall turn to each such consideration seriatim.

Historical Sentencing Practices

111. The applicant contended that because MS was a child at the time, s 25AA of the Sentencing Procedure Act applied to the sentencing exercise for the offences committed upon her.

112. It was further contended that all of the other offences were to be sentenced upon the principle that his Honour was required to take into account the sentencing practice at the date of the commission of the offences: See R v Shore (1992) 66 A Crim R 37 and R v MJR (2002) 54 NSWLR 368 followed in Magnuson v R [2013] NSWCCA 50; Doyle v R; R v Doyle [2014] NSWCCA 4 and Henderson v R [2016] NSWCCA 8.

113. Even though not supported on the basis of statistics, courts have recognised that sentences for assaults and predatory child sexual assaults were less severe in the past. It was contended that the sentencing judge did not apply those principles

114. From these foundations, the following submissions were made:

Recognition of this, and that the application of this more lenient regime was out of step with contemporary standards was in fact the very raison d’etre for the enactment of s 25AA of the Crimes (Sentencing Procedure) Act in 2018.

In this case, the indicative sentences that his Honour imposed for the physical assaults in particular seem extraordinarily high, particularly in light of their antiquity and the delays between them and the date of sentence.

115. Section 25AA of the Sentencing Procedure Act is in the following terms:

25AA   Sentencing for child sexual offences

(1)   A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

(2)   However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3)   When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4)   This section does not affect section 19.

(5)   In this section—

child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years—

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b)   an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c)   an offence of attempting to commit any offence referred to in paragraph (a) or (b),

(d)   an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c).

116. In my view, his Honour was mindful of the need to take into account historical sentencing practices (for all counts other than counts 23-26 and 28) and accepted that non-parole periods then imposed were generally in the order of one third to one half of the head sentence.

117. As acknowledged by the applicant, s 25AA applied to counts 23-26 and 28, and the imposition of a non-parole period of 10 years (for an overall sentence of 20 years). I accept the submission of the Crown that his Honour appears to have reflected historical sentencing practices by adopting this methodology.

118. This approach was open to his Honour. Further, it may be observed that his Honour was able to reach this conclusion, notwithstanding the parties’ failure to provide any tables or comparative data to assist in this regard.

119. As acknowledged by the applicant, s 25AA applied to counts 23-26 and 28, and the imposition of a non-parole period of 10 years (for an overall sentence of 20 years). I accept the submission of the Crown that his Honour appears to have reflected historical sentencing practices by this means. His Honour was mindful of the need to take into account historical sentencing practices and accepted that “non-parole periods then imposed were generally in the order of one third to one half of the head sentence”.

120. The applicant’s submission in this respect should be rejected.

Delay

121. The applicant made the following submissions regarding delay:

The delays in this case are for lengthy periods, and the reason for them was the late complaints. The offender was not responsible for these delays.

In Mill v R (1988) 166 CLR 59 the High Court said, at 66.5:

The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him raises considerations of fairness to the offender which must be taken into consideration….

The Court in that judgment also quoted with approval, at 64, the Court of Criminal Appeal in this state in Todd (1982) 2 NSWLR 517, when that court said:

…sentencing for a stale crime, long after the committing of the offence, calls for a considerable measure of understanding and flexibility of approach – passage of time between the offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what otherwise might be a quite undue degree of leniency being extended to the prisoner.

See also Sabra v R [2015] NSWCCA 38 where Bellew J, with whom the other members of the court agreed, said at [40]:

…decisions of this court…generally speaking…support the proposition that delay can be relevant at a number of levels, and that it can operate to mitigate an otherwise appropriate sentence [even] in the absence of evidence that it caused a particular change in the offender’s circumstances.

It is submitted that his Honour did not adequately deal with the issue of delay in his sentencing of the applicant. It is submitted that he erred in his apparent distinguishing of what he labels “the Todd principle”.

122. As will be evident from the earlier extract from the reasons for sentence, the sentencing judge distinguished R v Todd [1982] 2 NSWLR 517. That conclusion was available to him, in my view, based upon authorities such as R v Cattell [2019] NSWCCA 297.

123. The evidence in that trial demonstrated that the applicant had exploited the youth and vulnerability of the complainants to deter them from complaint as to their sexual abuse. In consequence, he thereby escaped justice and enjoyed, as the sentencing judge stated, “a life free from [dis]approbation or punishment for his crimes”.

122. There was no evidence that the applicant suffered, for example, an “uncertain suspense” as a result of delay. Even if he had, his silence in the hope of remaining free would have significantly diminished the factor as a basis for reducing the sentence imposed.

123. This contention should be rejected.

Indicative Sentences

126. The applicant contended that it was manifest that the sentence of 9 months’ imprisonment out of a 2 year maximum which the sentencing judge imposed for count 2 was excessive. Reliance was placed, in that respect, upon the nature of the (physical) assault and subjective factors such as his age at the time of sentencing and his unblemished record, notwithstanding that the complainant was vulnerable and under his authority.

127. Similar challenges were brought with respect to the indicative sentences for counts 3, 6 and 7 (relating to the same incident) and 12, 14, 16, 18 and 20.

128. It was contended that sentences imposed with respect to the complainant MS as to counts 23-28 were “very high” having regard to contemporary sentencing patterns. Further, it was contended that the sentencing judge indicated the same term of imprisonment of 10 years for counts 21 and 22 in respect of RF, even though he was obliged to apply the then patterns of sentencing, which, even in the absence of statistical underpinning, had been recognised as less severe.

129. In my view, the submissions of the Crown in response to these contentions are compelling.

130. First, I accept the submission that the aggregate sentence imposed by the sentencing judge reflected a very substantial degree of notional concurrence between the offences. The 18 indicative sentences identified by his Honour included sentences which totalled 72 years and 2 months. There were 6 individual indicative sentences for rape and buggery each of which was indicated as being 10 years or more. Four of the counts involved the rape on four separate occasions of a child aged 13-15 years while she was in institutional confinement.

131. Secondly, when regard is had to the separate nature of the offending against five different complainants on 16 different occasions spread over a number of years, the types of considerations which warrant a greater degree of concurrency between counts (in accordance with the principles discussed in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41) are largely absent and the aggregate non-parole period of 10 years may be considered to have reflected, as previously mentioned, a very significant leniency to the applicant.

Conclusion: Ground 6

132. Overall, when regard is had to the objective seriousness of the offending, neither the subjective case for the applicant (as I have earlier discussed in the context of considering the sentencing judge’s reasons for sentence), the particular factors relied upon by the applicant to demonstrate manifest excess, nor any other matter, indicate that the aggregate sentence imposed upon the applicant was manifestly excessive.

133. Leave to appeal should be granted, essentially to enable consideration of the factors relied upon by the applicant with respect to this ground. Otherwise the ground of appeal should be dismissed.

Orders

134. In the circumstances, I agree with the orders proposed by Macfarlan JA in the disposition of the appeal.

135. WILSON J: I agree with the orders proposed by Macfarlan JA for the reasons his Honour has given.

136. As Walton J has observed with respect to ground 6, the applicant’s complaint is pleaded as one which asserts that the sentence is manifestly excessive, although he contended in submissions that the sentencing judge erred in a number of discrete ways. Even having considered each of those separate contentions I, like Walton J, discern no error in the aggregate sentence ultimately imposed.

137. In the circumstances that apply here, not even the extended delay in bringing the applicant before a court could operate as a mitigating feature. As the sentencing judge concluded, the delay operated greatly in the applicant’s favour, by allowing him to live his life without the stain of criminal convictions at a much younger age, with all of the opprobrium and other consequences conviction for offences of this nature would have brought him. That there was delay at all is substantially due to the applicant’s own conduct, in selecting victims who would find complaint difficult, and in seeking to further silence those victims by emphasising to them their “worthlessness” as persons others would not accept as credible.

138. As the generous variation to the statutory ratio of sentence suggests, the sentencing judge had regard to contemporary sentencing patterns where that was required, and in so far as it was possible given the absence of evidence or information before the court to permit those patterns to be adequately ascertained.

139. The sentences indicated for the earliest offences in time, and particularly those contrary to s 61 of the Crimes Act, might be regarded as high, but each clearly reflects the overall circumstances of its commission, including the vulnerability of the child, and the gross abuse by the applicant of his authority. When attention is paid to the whole of the criminal conduct comprehended by the aggregate sentence imposed, I agree with Walton J that the sentence cannot be regarded as unjust. The applicant was in a position of trust; he had complete power and authority over the complainants who were, in each instance, vulnerable by both background and situation. The applicant exploited those vulnerabilities to abuse children who were entirely without a means of escaping his predation.

140. The applicant’s crimes represent a very serious course of offending against some of society’s most vulnerable young people, committed by a person in authority, over an extended period. Some of the offences carried a maximum penalty of life imprisonment. Such criminality demanded stern punishment, to address the wrong done, to make the applicant accountable, to denounce his conduct, and to deter others, principles of sentencing that applied in past decades as they do now. I agree with Walton J that the aggregate sentence imposed is not one which could be said to be manifestly excessive, and ground 6 should be dismissed.

**********

Decision last updated: 01 November 2021