JM v R;; R v JM

[2017] NSWCCA 138

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	JM v R;; R v JM [2017] NSWCCA 138
Hearing dates:	29 May 2017
Date of orders:	21 June 2017
Decision date:	21 June 2017
Before:	Hoeben CJ at CL at [1] Garling J at [221] Bellew J at [ 223]
Decision:	(1)   In relation to the conviction appeal, leave to appeal is granted but the appeal is dismissed. (2)   In relation to the Crown appeal against sentence, the appeal is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – historical sex offences – 14 counts of aggravated sexual assault and indecent assault – applicant convicted of 10 counts and acquitted of 4 – fitness to be tried – whether presumption of fitness to be tried was displaced – whether applicant may not have been fit to be tried – whether the appropriate tribunal acting reasonably could not conclude that the applicant was not fit to be tried – whether Presser criteria met – applicant fit to be tried – conviction appeal dismissed – CROWN APPEAL AGAINST SENTENCE – sentence of 6 years and 7 months with non-parole period of 2 years and 3 months – whether sentence manifestly inadequate – application of residual discretion – Crown appeal against sentence dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 61E, 71, 73, 76 Criminal Appeal Act 1912 (NSW) – s 5D Criminal Procedure Act 1986 (NSW) – ss 36, 37 Evidence Act 1995 (NSW) – s 137
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CT v R [2017] NSWCCA 15 Denham v R [2016] NSWCCA 309 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Eastman v The Queen [2000] HCA 29; 203 CLR 1 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 Kirkwood v R [2006] NSWCCA 181 LJS v R [2015] NSWCCA 47 Magnuson v R [2013] NSWCCA 50 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Ngatayi v R [1980] HCA 18; 147 CLR 1 PH v R [2009] NSWCCA 161 Power v The Queen; Selenski v The Queen; Lyons v The Queen [1974] HCA 26; 131 CLR 623 Regina v Henley [2005] NSWCCA 126 R v Presser [1958] VR 45 R v RTI [2003] NSWCCA 283; 58 NSWLR 438 R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Tuala [2015] NSWCCA 8 Wilson v R [2017] NSWCCA 41 Woodward v R [2017] NSWCCA 44
Category:	Principal judgment
Parties:	JM – Applicant/Respondent Regina – Respondent Crown/Applicant
Representation:	Counsel: K Ginges – Applicant/Respondent T Smith – Respondent Crown/Applicant   Solicitors: A Luong – Applicant/Respondent Solicitor for Public Prosecutions – Respondent Crown/Applicant
File Number(s):	2015/163974
Publication restriction:	Non-publication order in relation to name of complainants or any information that might identify the complainants.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 2 December 2016 Before: Flannery SC DCJ File Number(s): 2015/163974

Judgment

1. HOEBEN CJ at CL:

Proceedings

On 29 August 2016 JM (the applicant) was arraigned in the District Court at Sydney on an indictment containing eight counts of assault female under 16 years and commit act of indecency, contrary to s 76 of the Crimes Act 1900 (NSW); one count of carnal knowledge of a girl aged between 10 and 16 years, contrary to s 71 of the Crimes Act; three counts of carnal knowledge by a stepfather of a girl aged between 10 and 17 years, contrary to s 73 of the Crimes Act; and two counts of assault and commit an act of indecency, contrary to s 61E(1) of the Crimes Act.

2. Counts 2, 4, 6 and 9 carried a maximum penalty of imprisonment for 6 years. Count 3 carried a maximum penalty of imprisonment for 10 years. Counts 5, 7 and 10 carried a maximum penalty of imprisonment for 14 years and Counts 13 and 14 carried a maximum penalty of imprisonment for 4 years.

3. The 14 charges related to two complainants – the applicant’s stepdaughter, TF (13 charges), and his natural daughter, JS (1 charge).

4. On 9 and 12 September 2016, following a trial before Flannery SC DCJ and a jury of 12 in which he was unrepresented, the applicant was found guilty of:

• Four counts of assault female under 16 years and commit an act of indecency (Counts 2, 4, 6 and 9).

• One count of carnal knowledge of a girl aged between 10 and 16 years (Count 3).

• Three counts of carnal knowledge by a stepfather of a girl aged between 10 and 17 years (Counts 5, 7 and 10).

• Two counts of assault and commit an act of indecency (Counts 13 and 14).

5. The applicant was acquitted of four counts of assault female under 16 and commit an act of indecency – three counts related to TF and one count related to JS (i.e. Counts 1, 8, 11 and 12).

6. The applicant was sentenced by Flannery DCJ to an aggregate term of imprisonment of 6 years and 7 months, commencing 4 November 2016 and expiring 3 June 2023, with a non-parole period of 2 years and 3 months, expiring 3 February 2019 which is the earliest date upon which the applicant will be eligible for release to parole.

7. The applicant relies upon a single ground of appeal against his conviction:

Ground 1 – A miscarriage of justice was occasioned as a result of the applicant’s unfitness to be tried.

8. The Crown has appealed against the sentence imposed on the applicant.

Ground 1 – The aggregate non-parole period is manifestly inadequate.

FACTUAL BACKGROUND

9. The Crown case was as follows.

10. The first complainant, TF, was the step daughter of the applicant and was born in 1966. The second complainant, JS, was the natural daughter of the applicant and was born in 1973.

11. TF’s natural parents separated when she was aged three and her mother was pregnant with a younger sister, KM. Their mother, RM, married the applicant when TF was aged about three. The family initially lived in a house in Junee, and then moved to Wagga Wagga when TF was aged about three and a half or four years. The applicant adopted TF and her sister KM.

Count 1 (between 1 June 1969 and 31 January 1971) (acquitted)

12. This incident occurred when the family were living in the house at Junee. The applicant took TF out of the bath and walked her down the hallway into a bedroom which was very long and had a cot at the far end. KM was still a baby, less than one year old at the time. TF had a towel over her shoulder when the applicant knelt down in front of her and twisted the towel and put it between her legs. He moved it back and forward on her vagina saying "tickle tickle". He then put his fingers on her vagina and said "tickle tickle". TF said that she was “confused and frightened” when he did this. She “knew it wasn't right”.

13. TF was a child at the time of this incident and was not attending school or preschool. She did not tell anyone about what had happened. She said that this type of act happened many times. TF was shown a sketch which she drew in 2014 depicting the general plan of the house in Junee. She identified the sketch and said that it was how she remembered the house.

14. The family moved to a three bedroom house in Wagga Wagga at the end of 1970. TF moved out of the family home when she was aged about 17. TF identified a sketch plan of the Wagga Wagga house.

Counts 2 and 3 (between 1 June 1976 and 21 November 1976) (convicted)

15. When TF’s mother was about seven months pregnant with her brother, BM, an incident occurred between TF and the applicant. BM was born on 21 November 1976 and TF was 10 years old at the time. TF recalled that the applicant used to pull her pants down and tell her that she had been naughty and smack her on the bare bottom.

16. On a particular occasion when her mother was pregnant with BM, the applicant dragged TF through the saloon doors to a top bedroom, which was near the kitchen. It was the only room that had a door that closed, not a sliding door. He took TF into that room and threw her on the end of the bed face down. She was crying and he held her down. She was petrified. He pulled her pants down and smacked her on the bottom and said "Nobody's going to come in". The applicant then put his fingers in her vagina. She felt pain because his nails were sharp and he was scratching her going in and out. TF remembered him saying "Shh, it's only my fingers”. She did not know how long this activity lasted (Count 2).

17. The applicant then held her fingers and had his hand around her mouth to keep it shut. TF tried to push him away and bite him. She felt something that did not feel sharp and she knew it was not his fingers because both his hands were around the top part of her body and face. She said she could feel the head of his penis inside her vagina (Count 3). TF could not recall how long it was there or how long this incident in the bedroom lasted. At some stage he removed his penis, stood up and walked out. TF was crying and went to the toilet and wiped her vagina.

18. She remembered that it felt wet. She did not tell anyone about this incident.

Counts 4 and 5 (between 21 November 1976 and 31 January 1978) (convicted)

19. An incident occurred at a time when BM was less than one year old. TF was 10 or 11. The applicant grabbed her by the arms and dragged her into the same bedroom as before. She did not think anyone else was there because she was screaming and crying. He dragged her in there and threw her on the floor in the room. It was more aggressive this time. She was lying on her back, facing him. He pulled her pants down, stuck his fingers in her vagina and licked her face. She recalled that he smelt like onion. He was lying on top of her and she felt like she was being crushed. When he pushed his fingers inside her vagina, it felt “really hard and scraping” (Count 4). After he took his fingers out, he put his penis in her vagina. In evidence, TF described her "vagina feeling stretched" when this happened (Count 5).

20. Once the applicant removed his penis from her vagina, he pulled her pants up and walked out. This type of incident happened again but TF could not say how often it happened.

21. The applicant was a shearer and after he came home from work he would have a shower. He would walk down the hallway to the shower either in his underwear or naked. When he was naked TF could see his penis and sometimes he had an erection. When the applicant used the shower he would often ask TF to bring him a towel. When she brought the towel to him, he would stand there with a “hard on” and ask her to look at him. At times, when TF was in the bathroom having a shower the applicant would come in to use the toilet or wash his hands. At a time when she was naked and drying herself, the applicant said he needed to wipe his hands and took the towel from her, saying “You can't hide from me”. This type of incident occurred many times. TF did not tell anyone about these incidents in the shower and bathroom because “I couldn't. I was scared. I was a child. There was no way”.

22. TF said that she lived in fear of the applicant, she was terrified of him. He would hit her with the jug cord for no apparent reason and he would flick the strap causing her to be on edge and frightened of him.

23. There was a space under the house where the applicant used to store things and there was a door which gave access to the space. The applicant used to make TF go under the house with him, in front of him and he would grab at her or stick his fingers between her legs. He used to get her to help him take things under there. This sort of event happened many times. She did not want to go under the house with him and resisted many times but knew that she had to do as she was told.

Counts 6 and 7 (between 27 March 1977 and 14 April 1977) (convicted)

24. TF recalled a time when her sister, JM, was in hospital with a broken leg. It was around Easter but she did not know what year. (It was subsequently established that JM was in hospital between 27 March 1977 and 13 April 1977). TF was aged 10 at the time. It was cold and TF was wearing pants. The applicant told TF to go under the house with him. She did not think anyone else was there. He pushed her in and pushed her further around to a spot where there were not many things. The area at the front was cluttered. The applicant pushed her face down into the dirt and she recalled tasting dirt in her mouth. It felt like she was on a raised cold area. He pulled her pants and underpants down so that they were to her knees. He put his fingers into her vagina. It felt “like he was being really fast, it felt vicious" (Count 6). He took his hand away and he was holding her down in the dirt and then she felt him put the head of his penis into her vagina. She closed her eyes and wanted him to stop. He pulled her pants back up but he did not do them up (Count 7).

25. The applicant then pushed TF to go out and told her that she was “useless”. He made her feel really bad but she had not done anything wrong by him. He pushed her out and she did up her pants and sat down outside. He came out a little bit later and went inside the house. TF could not remember anyone else being there.

Count 8 (between 21 November 1977 and 21 November 1978) (acquitted)

26. TF recalled an occasion when the applicant called her into the bathroom to bring him a towel. BM was only little, about one or two years old. TF thought she was about eleven. Because her mother was in the kitchen, she thought it would be okay. She took the towel in and the applicant was standing sideways with water running over him. He had an erection and was rubbing his penis. He told her to come over to him and she handed him the towel. He took her hands and wrapped them around his penis and made her squeeze. TF was crying and he pushed her hands up and down. She screamed and ran out into the lounge room. When she screamed he let go of her hand. These were the facts which gave rise to Count 8.

27. TF recalled an incident during a family gathering when her aunties and an uncle were present. It was during a celebration and there was a big long table near the lounge room window. The applicant sat TF on a single chair in the lounge room. He pulled her pants down and was smacking her “pretending like he was mucking around and tickling me”. He then stuck his fingers into her vagina. She felt his fingers go into and out of her vagina. It was very quick and there were people everywhere. He pulled her pants back up and she went and sat on the floor. She did not tell anyone, she just felt so disgusted. This was led as context evidence and was not included in any of the counts.

Counts 9 and 10 (between 1 December 1977 and 1 February 1978) (convicted)

28. TF recalled another incident which occurred under the house. It was a very hot day and the applicant asked her to help him carry a tin and go under the house with him. It occurred during Christmas school holidays at the end of Year 5 in primary school. TF said she was 11 years old or turning 11.

29. The applicant pushed her in front of him under the house. He pushed her into a location where there was raised dirt. He pushed her down into the dirt and held her there. TF was wriggling and he tried to move her pants to the side. He moved her pants to the side and shoved his hand in her vagina (Count 9).

30. He pulled his hand out and then put his penis in her vagina. It felt really tight. Her pants were pulled to the side and he pushed her vagina again. He was moving around a lot and she felt him on her back. She did not know how long his penis was in her vagina but it felt really rushed (Count 10). The applicant pushed her away and she went out of the door. He stayed in there for a lot longer than normal.

Count 12 (between 16 August 1978 and 1 June 1979) (acquitted)

31. TF and her family moved to her uncle's house at Glenorie at around the end of 1978 or the start of 1979. Her aunt had been killed in a car accident and they moved in to assist her uncle to look after her cousin.

32. TF had her first period when she was at the house at Glenorie. She told her mother about it and her mother told the applicant. The applicant said to the complainant that she was “a woman now”.

33. In 1979 TF started Year 7 at high school. They were still living at the house in Glenorie. She recalled that one day she was lying in the lounge room when the applicant came over and began wrestling and tickling her and her sister KM on the floor. She felt the applicant had a “hard on” and he was pushing it against her. Her brother walked past and jumped in. The applicant put his hands down TF's pants and touched her vagina. He put his fingers in her vagina when everybody was there wrestling (Count 12). The applicant then got up and walked away. TF’s mother was in the kitchen at the time. TF sat there crying.

34. The family stayed at the house at Glenorie for a year. There were some further incidents of the applicant putting his hands under the sheets and putting his fingers into her vagina, but nothing more with his penis. After they left Glenorie, the applicant did not put his penis in her vagina again.

Counts 13 and 14 (between 1 June 1982 and 18 July 1983) (convicted)

35. The family moved back to Wagga Wagga. TF completed Year 10 at high school in 1982 and turned 16 that year. She applied for a driver's and learner’s permit. At the time, the family owned a gold coloured Kingswood with bench seats. She started to learn to drive with the applicant as her instructor.

36. TF recalled an incident during a driving lesson. She was driving and the applicant was in the front passenger seat. There was no one else in the car. He reached across while she was driving and grabbed her breast. She went to push him away and told him to leave her alone. He told her to get her hands back on the steering wheel (Count 13). He then shoved his hand down the front of her pants and was trying to get his hands further down. He touched the top of her vagina and she felt skin on skin (Count 14). His fingers were just inside her vagina. She stopped the car in the middle of the road, got out and ran home. When she got home she told her mother she did not want any more driving lessons.

37. TF had her first boyfriend when she was aged 17 and the applicant did not like it. He kept telling her that she was too young to have a boyfriend and said to her “Who would want you anyway”. She started a TAFE course and in 1984 when she turned 18, she left home. She did not live with the applicant again.

38. When TF was aged 21 she moved to Canberra where she met Bernadette Anderson and they became friends. Ms Anderson was the first person whom she told what the applicant had done to her. She could not recall the exact year in which she told her, but she lived in Canberra for about three and a half years.

39. After living in Canberra, TF moved to Sydney. Sometime after that the applicant and TF’s mother also moved to Sydney. She tried to visit her mother when the applicant was not there but did see him at family events. She tried to position herself away from him but he would still try to grab at her or grope her. He would stick his finger in her bottom or underneath between her legs. He would put his arm around her in photos and grab her breast. He was always angry and he painted a bad picture of her and tried to isolate her from everybody else.

40. In 2006 TF met her husband and in 2008 they got married. In 2008 she told her husband what had happened between her and the applicant and sometime after Christmas in 2010 she told her mother and other members of the family. She told them after a telephone conversation with her sister, KM, concerning arrangements for the applicant to babysit her sister's son.

41. TF contacted the police and spoke to Detective Pratt in January 2011. She signed a statement on 21 August 2014. She explained the long delay as due to her being scared of the applicant and scared of what he would do to everybody.

Cross examination of TF

42. The cross-examination of TF was by a court appointed intermediary, Mr West. TF described her relationship with the applicant while she was growing up as being “terrified of him”. He controlled her and her whole family in every way. TF agreed that in the 1990’s she was working at the St George Hospital and was there for five and a half years. She agreed that for a part of that time the applicant also worked there and she would run into him occasionally. She said that there was not any interaction because she tried not to have much communication with him when there was no-one else with her. She denied that they met frequently for morning tea when they were both working at the hospital. She could not recall ever having morning tea with him.

42. TF agreed that she visited the applicant when he was admitted to hospital but denied that she visited him regularly. She agreed that she did buy him birthday presents and cards, but only to keep up appearances with the family because she had not told them what he had done to her. She denied that she gave him any respect. She wrote cards but there was no warmth there.

43. TF agreed that she gave quite a lot of detail about the incident which she said occurred when she was 3 or 4 years old. She said that she remembered it very clearly because of how horrendous the experience was. She denied the proposition that it did not occur. She denied that a 3 or 4 year old would not experience emotions such as being embarrassed and confused. She said that she knew that it was wrong and she was embarrassed. She denied that those descriptions had been suggested to her later.

44. In relation to the incident when the applicant was in the shower and had an erection, TF said that her mother was in the kitchen at the time. She agreed that she had said that the applicant grabbed her hand and made her touch and squeeze his penis and that she had screamed and run into the lounge room. TF said that the kitchen was at the other end of the house. She did not know whether her mother had heard. She did wonder why her mother did not come. TF said it was obvious that her mother did not hear or she would have come. TF denied that it was because the incident did not occur.

45. TF agreed that her mother was a proud housekeeper. She would regularly wash towels. TF denied that the applicant did not call out for a towel, saying that he did it all the time. If there were a towel there, he would say that the towel was not his. She agreed that the photo of the bathroom showed a towel rail and that there was also one behind the door and a hand towel near the sink. She said that if there were a towel rail there and if there were a towel there, he would still call her for a towel, saying there was not one for him. She said that it was not an option to leave the towel at the entrance to the door because she was terrified of him and she did what she was told or she would have been hit or abused.

46. TF said that her mother knew that the applicant frightened her. The applicant used to paint a picture that TF did not like him because he was not her real father. He told her mother that she would get upset, but he was really trying to cover up what he was doing. There was a lot of domestic violence in the home when she was growing up.

47. TF agreed that she was very specific about the words which the applicant said to her when she described the incident that occurred when her mother was pregnant with her brother BM (Counts 6 and 7). She said that she was having therapy with a sexual assault counsellor and the words which he used came into her head. This occurred in the last few years. Until then, she would not have been able to recall the exact words. TF was confident that her memory was accurate because she knew what she went through. She knew all the different scenarios of what he had done to her. She did not necessarily know the words until the bits and pieces all came together. TF denied that the counsellor or other people had helped her put the events together.

48. TF agreed that she moved away from home as soon as she turned 18 and had since made efforts to avoid contact with the applicant. She agreed that when she moved from Canberra to Sydney she asked the applicant to help her move. She made it clear to him that if he came anywhere near her she would tell everybody what he had done to her.

49. TF denied that when in Sydney she locked herself out of her unit and asked her mother to send the applicant to assist her to get back in. She did not recall asking him to assist her to fix the front door. TF said that she may have asked the applicant to assist from time to time but not if someone else was around. She did not want him near her place.

50. In relation to the driving incident she denied the proposition that it was not the last time he assisted her to learn to drive. TF said that he instructed her several times but he only touched her on one occasion and that was the last time.

51. TF agreed that one of the reasons she disclosed these events was because she was concerned about the applicant looking after B (her sister KM's child). She denied that the applicant was already looking after him, saying that her mother was. TF said she would visit her mother to make sure B was not alone. She was not aware that the applicant had taken B to football training. She found out that the applicant had taken B to the underground garage on his bike and that terrified her. TF denied that she made up the allegations because she was very concerned for B's safety and thought it was the only way to protect him. TF said that everything she had said was the truth. She denied that all the allegations made against the applicant were a fabrication.

52. TF confirmed her earlier evidence that the applicant would take his clothes off in the laundry and walk down the hall in his underpants after he came home from work. If she were the only one in the house, he would be fully naked. TF could not say how many times she had seen him naked like that but it was quite a lot. TF was then asked whether the applicant was circumcised or uncircumcised. TF replied that she was a child and would not have known the difference and what it meant to be circumcised. When she saw his penis it was always with an erection. TF denied the proposition that she had never in fact seen the applicant fully naked and that was why she could not say whether or not he was circumcised.

The evidence of RM

54. RM married the applicant in November 1970. She had two children from a previous marriage and two children with him. When the children were young, she did not work and looked after the children. Towards the end of 1972 they moved to Wagga Wagga where they lived for 20 years. At one stage they moved to Glenorie after the death of her sister-in-law.

55. RM said that during the years at Wagga Wagga, the applicant had a very bad temper. She was on edge the whole time. He would hit TF and the others with a strap or with his hand on the head with which she totally disagreed. When she was around, the applicant was quite decent to the children a lot of the time but at other times he was not. It was hard to know how he was going to react. He would hit the children every second or third day. RM observed that TF was afraid of the applicant but she thought that this was just because of the angry tone in his voice and the things he used to say.

56. RM remembered an occasion when TF ran away from home. She ran down the street and went to the side of a friend’s house and was trying to climb the back fence. The applicant got there before RM and virtually dragged TF home. TF was 12 or 13 at the time. He forced her to go back home saying that she was on drugs or something but RM knew that this was not true.

57. The family moved to Glenorie after her sister-in-law died in a car accident so that RM could look after her brother’s daughter. Her son, BM, was about 2 years old when they moved there and they lived there for about 10 months. They moved back to a rental property in Wagga Wagga while they were waiting for another house to be built. TF moved out of home not long after they moved into the new house. TF turned 17 in 1983 and moved in with her boyfriend at about that time.

58. At the beginning of 2011, TF contacted RM and asked her to come to her house. It was at about this time that TF disclosed the things which she said the applicant had done to her. Other family members were there as well. RM was contacted by police in November 2014 and made a statement.

Cross-examination of RM

59. The applicant cross-examined RM. RM said that what was in her statement was true, i.e. that the applicant had an explosive temper and that if she and the children did something wrong, he would smack then across the back of the head with his hand and sometimes with the strap. This was true, even though she did not report it to the police. She stayed with the applicant for 39 years because it was very hard to walk away with four children. The minute she found out that her children were in danger, she walked away.

60. RM said that she did not see the applicant touching TF inappropriately or any of the other children. If she heard TF screaming or crying, TF would say that the applicant had hit her. TF was afraid of the applicant.

61. RM denied that what she had said in her police statement was untrue, i.e. that the applicant would take the kids into their bedrooms alone to discipline them. RM said that this happened quite often. RM disagreed that the applicant would discipline the children on the spot.

62. RM did not clearly remember going to TF’s unit with the applicant when TF locked herself out, and then having a cup of coffee. RM agreed that the applicant did pick up B from preschool and school some of the time and also took him to the park sometimes. She agreed that he took him to Caringbah oval with his new BMX sometimes. She agreed that the applicant appeared to love and care for his grandchildren.

63. RM denied that B was always happy to see the applicant, stating that he was actually quite afraid of him in recent years and cried a lot. RM was not sure of the date when the applicant adopted the two girls, but thought it was before KM went to school. RM agreed that it was true that she wanted to move to Wagga Wagga from Junee so she could be closer to her parents. She agreed that when they lived in Wagga Wagga, the girls did not sit around crying and unhappy all the time but said they did sometimes. RM did not agree that she was home 98% of the time when the applicant was in the house in Wagga Wagga. She used to go out to get groceries. She denied that the applicant always went to the shops if they needed anything.

64. RM remembered that the applicant would go under the house quite often but she could not remember the children going under the house, but at times they did. RM could remember the applicant coming home from work, getting changed in the laundry and walking into the shower in his underpants.

65. RM was shown a photo of the hallway inside of the house at Wagga Wagga. She did not agree that if someone was crying in the bedroom occupied by the applicant at the time, that could be heard from the kitchen. She said that if the door between the kitchen and hall was closed, you would not hear it. She denied that this door was never shut.

The evidence of KM

66. KM was TF’s sister, who was born in 1969 and is about 3 years younger. RM and her father separated when she was very young and she and TF were adopted by the applicant. In the first 10 years of her childhood the applicant used to get extremely angry and was very controlling. Otherwise, they had a normal relationship except for his anger and fits of rage which occurred very regularly. The applicant would discipline her with a leather belt at least once every couple of weeks. This occurred with TF and all of the children.

67. She described the relationship between the applicant and TF as “never close”. TF was always quite awkward around him, particularly as an adult and she never liked to participate in family activities when he was going to be present. When the family got together for Christmas and birthdays in the previous 15 to 20 years, TF would not participate if the applicant was going to be there.

68. KM gave birth to her son B in 2001. At the end of 2010, she told TF that she had obtained employment and had asked her mother to look after B on Wednesday nights. Her mother worked on that particular night and had suggested that the applicant would look after B. Less than two weeks later, in early 2011, TF asked her to go to her house and this was the first time TF disclosed to her what she said the applicant did to her.

69. About two weeks after the meeting with TF in 2011, KM received a phone message from the applicant. She listened to the message and recognised his voice. The message was: “ I don't know why everyone is so upset. I didn't do that much at all to [TF]. There was no penetration”.

70. On the same day, within an hour or two, she went to her brother's house (BM) and played the message to him, his wife Violeta Trajcevska and their adult daughter. KM thought she had saved the message but when she got a new phone she realised that she had not. When she played it for her brother, his adult daughter, Juliana recorded the message on her phone. KM believed that Juliana no longer had the recording. KM said the words of the applicant were burned into her brain because she was shocked. She was shocked when she heard it from his voice.

Cross-examination of KM

71. The applicant cross-examined KM. In cross-examination KM said that TF was aged 44 when she told her about what had happened. KM confirmed as true what she had said in her statement that “I don't remember [the applicant] treating me any differently to [TF] at any time of our life”. KM said that it was false when it was put to her that the applicant never actually hit her and the other children with a belt.

72. KM agreed that she had lived with the applicant and her mother for a short period of time at Ramsgate. They then all moved to Sylvania when B was little. She agreed that she saw B interact with the applicant when the applicant got home from work in the afternoons. She agreed that the applicant would pick up B from preschool on occasions. She did not agree that this happened 98% of the time.

73. KM said that the applicant was not always a good father to her. She agreed that he treated her as his own. She did recall seeing members of the family sitting around crying or very unhappy including herself. KM did not play under the house. She did not recall whether there was a lock on the door under the house. She did not know what the applicant kept under there.

74. It was put to KM that the applicant did not say those words on the phone message. KM said that he definitely did say those words. KM confirmed that she no longer had the recording because it was a voicemail on her phone which she no longer had.

The evidence of Ms Trajcevska

75. Violeta Trajcevska had been in a relationship with BM, TF’s brother, since 1999. Through discussions in the family, she became aware that TF had made some allegations against the applicant. A couple of weeks later, KM came to their house and played a recording of a phone message. Ms Trajcevska's evidence was “… the phone message that was left it stated that, well it was [the applicant] and I was aware that it was him. And he said on the message that he was sorry and that he didn't penetrate and we went sort of in a shock, couldn't believe what we were hearing” (T.237.19). When KM played the message, they tried to record it on Ms Trajcevska’s daughter’s phone but the recording was subsequently lost.

76. In cross-examination, when the applicant put to her that she was mistaken in what she had heard, she denied it and said that her evidence was true.

77. In further cross-examination the applicant put to her that he did not say “how sorry I was and that it wasn't penetration”, to which she responded that he did say those words. She denied that there was no tape and said “I heard what I heard, and that is the truth”. (T.249.28).

Count 11 (between 1 January 1978 and 25 April 1979) (acquitted)

78. JS was the daughter of RM and the applicant and was born in 1973. She recalled an incident when she was aged about 5. She was sitting on the lounge and she could hear her mother in the kitchen washing up. It was the weekend. The applicant sat on the lounge next to her and wrapped his legs around her so that she could not move. She yelled at him to get away and he grabbed her head and started kissing her. He kissed her on her mouth and he stuck his tongue in her mouth. He made her feel sick. She could not tell how long he did this for but she could not get away and she was yelling “get away”. RM yelled from the kitchen “What are you doing?” and then a short time later, she came in and said “Let her go. What are you doing?” The applicant released his hold on her and she ran into her bedroom crying.

79. JS lived with the applicant and RM until she gained her HSC and then moved out in 1992. She moved back with her parents when they were living at Ramsgate in Sydney when she was aged 26. She never told anyone about what her father did because it was repulsive and disgusting. She met her husband in 2001 and they married in 2003.

80. JS did not have a lot of memories of her relationship with the applicant when she was a young child. She recalled yelling and things being thrown at times. RM and the applicant would yell and the applicant would throw things. The applicant was the one who disciplined her and her siblings. He used to hit them with a belt. He would hit them every couple of days.

81. JS lived with her parents in Sydney but moved out after a disagreement between her husband and the applicant. This was in about April 2006. She has not lived with her parents since that time. In January 2011, TF contacted her about visiting her and then her mother contacted her a week later and told her that TF had said certain things.

Cross-examination of JS

82. JS was cross-examined by a court appointed intermediary using questions written by the applicant and Mr Bewes. In cross-examination JS said that her relationship with the applicant was not good, particularly when she was living in Wagga Wagga. She had always been frightened of him. She would not describe her childhood as a happy one. She said that she could recall the incident she described with clarity because it was something that was traumatising up to this moment. She denied that it was a common thing for the applicant to wrestle in a “play fashion” with her and the other children. She denied the proposition that the incident did not occur as she described.

Evidence of Bernadette Anderson

83. Bernadette Anderson gave evidence of a complaint by TF. When Ms Anderson was aged about 23 or 24, she had a conversation with TF, who was a year younger than her. They were in Ms Andersons' unit and TF was visiting and seemed tense. She started crying hysterically. Ms Anderson was eventually able to calm TF down and when she asked “What is it about? Is it about your mum or your family or is it about your father?” TF replied “Yes, it's about him”. Ms Anderson said “What happened? Did he sexually abuse you?” to which TF replied “Yes” and continued crying. TF did not give Ms Anderson any further details because she was unable to speak (T.288.38).

Cross-examination of Bernadette Anderson

84. In cross-examination Ms Anderson explained that she asked the complainant “Did your father sexually assault you?” because she was trying to find out what was wrong. She was going through a process. She was trying to work it out by asking questions because TF could not speak. Ms Anderson said she noticed animosity between TF and the applicant when the applicant visited because they spoke to each other aggressively. Ms Anderson agreed that TF had told her that the applicant would put her down constantly in front of family members and make nasty comments about her body saying she was “fat” and telling the family to laugh at her. Ms Anderson did not agree that TF was always a very skinny girl growing up. She said that her weight had gone up and down a lot.

The applicant’s ERISP

85. Police evidence was that the applicant had never been charged or convicted of any indecent assault or sexual assault offences. As part of the police investigation, the applicant was arrested and interviewed on 2 June 2015. The DVD of the ERISP was played to the jury and was an exhibit in the proceedings. The transcript was marked for identification.

86. During that interview, the applicant said that he never sexually assaulted his children. He loved them all. He never bathed them because he was always at work and RM did that. He met RM in Junee and they married in November 1970. At the time RM had two daughters, TF and KM, from a previous relationship. He and RM had two more children. They lived in Junee at first but RM did not want to live in Junee near her ex-husband so the applicant bought a house in Wagga Wagga. There were originally three bedrooms in the house and when BM was born, the applicant built another room.

85. The applicant said there was access to under the house. It was about four foot six off the ground and there was a little door which allowed access. The door to under the house was at the back. He had cemented part of the area under the house and they had a lot of stuff stored there, such as a lawnmower, tools and a bit of rubbish. He did not go under there often, only when he was mowing the lawns. The kids never played under there to his knowledge and it was mainly all his stuff under there. He had lawnmower fuel and sprays for the garden. It was cemented at the front and there was dirt behind. Later in his interview he said “I would have been under there yes with the kids at different stages. I think someone might have had a little play area on that concrete part …” and “… only when the door was open. The door was mostly closed”. It was only open when he was mowing the lawns or something like that. The door had a latch on the outside, not the inside. He did not recall playing with the kids under there, but he might have been getting something from under the house.

86. The applicant worked as a shearer out of Junee. When he bought the place at Wagga Wagga, he travelled to and from the house every day. He was home every night and only worked Monday to Friday.

87. When the allegation in Count 1 was put to him, the applicant said “That’s false”. The applicant said that RM always bathed the children and that she always had them in bed by the time he got home because he would not get home some nights until half past six. On weekends RM still bathed the children. The applicant said that he never bathed them. He did bathe JS and BM but this was later. The applicant said “Well, I, I really can’t remember it but that’s not right. That’s, as I told you, I never bathed or dried the children. I dried their hair, I did dry their hair … I used to dry their hair because they had long hair. Yeah … but I never, I never dried them.” He would dry their hair by putting their head on his chest.

88. When the allegation in Count 2 was put to him, the applicant said “No, that’s false … I wouldn’t do that anyways but that is completely false… I haven’t been that person.” In relation to Count 3, the applicant said “No, that is absolutely false… both of them are false.” He said “[RM] was always in the house for all times with me and the children. We was a family… When I come home from work, RM was home. She had the dinner cooked and, you know what I mean, we, we were together in that home. [RM] would stab a knife in me if I’d done anything like that. I would never, never dream of doing anything like that, to little children like that.”

89. The applicant agreed that when TF was around 10 or 11, while they were living at Wagga Wagga, he put her over his knee when RM was sitting beside him and had smacked her on the bottom. He said that it was a slap and not a bashing or anything else. He could not recall what TF had done, but he thought she might have given them “a bit of cheek”. The applicant agreed that on one occasion, TF had gone to her friend Trudy’s house when she was told that she was not allowed to do so. The applicant said “And I did go down and bring her home but I didn’t bash her that day, I didn’t hit her, I didn’t hit my children… I brought her home by the ear.”

90. When Counts 4 and 5 were put to the applicant he said that they were completely false and that RM would be able to verify that. He denied that TF was crying and screaming.

91. When Count 8 was put to the applicant, he denied that this had occurred and said that it was “Very false. [RM] lived in the house. A three bedroom house … Very false.”

92. When Counts 9 and 10 were put to him, the applicant responded that this was a “lie” and “false”. As well as denying that such an incident took place, the applicant said “Is [TF] medically all right?” and asserted that his wife’s side of the family would do “anything for money”.

93. When Counts 6 and 7 were put to him, the applicant denied that such events had occurred and said “That’s very, very wrong, I never done anything sexually to my children in my whole life”. He said that TF lived with a father who loved her and never did any of these things to her.

94. When Count 12 was put to the applicant, he agreed that there was a time when the family stayed at his wife’s brother’s house at Glenorie after that person’s wife was killed. The applicant agreed that he did tickle his children but “nowhere down there where you shouldn’t tickle them”. The applicant denied that he had ever touched TF in the vagina and said that the allegation was “very wrong”.

95. When Counts 13 and 14 were put to the applicant, he said that he could not remember giving driving lessons to TF, but probably did so. The applicant denied that he had at any time touched TF’s breast and denied the conversation which TF said took place. In relation to touching TF on the vagina, the applicant denied that and said “Never done that in my life”.

96. When Count 11 was put to the applicant, he said that the allegation was “wrong”. He only kissed his children on the cheek. He did not think that he would have ever kissed JS on the mouth. He said “I don’t remember that one bit … no, I wouldn’t have done that”. Later, when asked whether he kissed JS on the mouth, he said “I’d have to say yes, not mouth … on the lip”. He did not put his tongue into her mouth.

97. It was put to the applicant that when TF was aged about 12, she attempted to run away and that she went to the railway station. The applicant denied that TF ran away but said that there was one occasion when he brought her home from her friend Trudy’s house, but denied that he had assaulted her in any way when doing so.

98. The applicant said that after TF left home at a young age, 16 or 17, she did not have a lot to do with the family. He had helped her move to Canberra and then later move to Sydney. The applicant described his relationship with TF as “really good” and said that they got on well together.

99. It was put to the applicant that he contacted his daughter KM’s phone and left a voicemail message. The applicant said that he did not remember anything about the voicemail he left. When it was put to him that in the voicemail he said “I don’t know what everyone is so upset about. I didn’t do much at all to [TF] it wasn’t even penetration”, he said that he did not remember that and did not think that he would have said that. The applicant said that he never ever sexually touched his children. He could not recall saying “It was not even penetration” and when asked whether he could have said those words, he said “I don’t know”.

100. The applicant said that he did not know where “the big story” came from as he had given “them kids the best life a father could give any kids”. He said that TF should have spoken to him. When he first heard about this, he wanted to see TF and to speak to her but RM did not want to go over and speak to her.

101. The applicant said that he could have rung KM. When asked why he would say the words attributed to him, he responded “I don’t know. I don’t know whether I even said that. I don’t. Like, like I said, I love [TF] and I never done nothing to [TF]”.

102. The applicant said that RM was at home all the time. She was a housewife. She never worked. The applicant was not able to say whether RM ever left him alone at home with the children. RM sometimes left the house to visit her mother. He thought that RM probably did leave him with the children lots of times.

103. The applicant denied that he had indecently or sexually assaulted his daughters TF or JS. He said that he loved his three daughters and his son. He had done everything a normal father could do for them in every way. He loved his family and was always there for them. He was not an alcoholic. He did not drink very much.

The applicant’s case

106. The applicant did not give evidence. He did, however, call several character witnesses.

107. Margaret Hall was aware of the charges against him and said that she did not think he would have carried out the conduct alleged in the charges. She had always found him to be a person of good character and a good father over the years. In cross-examination she agreed that the last time she had seen him was over 12 months before she gave evidence. She had occasionally seen the applicant interact with TF and JS. She did not see the applicant ever hit his children or his wife. She had never spoken to any of his children about the way he treated them when they were children. Ms Hall said that she had known the applicant for more than 50 years and she had never found him to be an aggressive person.

108. Graham Conroy said that he was aware of the alleged charges against the applicant and did not believe that the applicant would have engaged in the conduct set out in those charges. He had known the applicant since 1978 and had never known him to be anything other than a gentleman and a kind and loving man. His character was exemplary and beyond reproach. In cross-examination he said that he had never met any of the applicant’s children. He had not seen the applicant interact with his children. He had seen the applicant interact with his own children, i.e. Mr Conroy’s. He did not believe that the applicant regularly beat his children with a leather strap. He agreed that if he knew somebody had behaved like that towards their children, it would change his opinion of that person.

109. Kathy Conroy was aware of the charges which had been brought against the applicant. She was his niece, being the daughter of his brother. She did not believe that he would have carried out the acts, the subject of the charges. To her observation, he had been a good father to his children and had been very kind to her. Under cross-examination she agreed that she had not seen the applicant with his children very often and that the family would only get together “now and then”. Ms Conroy was a little older than TF. She had not had any direct contact with the applicant’s children since about 1972. She had never seen the applicant hit his children with a leather belt.

110. In the conviction appeal, there was before the Court a report from Mr Cipriani, a clinical psychologist, who saw the applicant on 22 October 2016 for four hours during which he administered a number of tests. The report was dated 27 October 2016. It was common ground that the report had been prepared for the sentence proceedings and that Mr Cipriani was not asked to turn his mind to the applicant’s fitness to be tried, or to the Presser criteria (R v Presser [1958] VR 45).

111. The following background matters were recorded by Mr Cipriani in his report:

• The applicant had not had any previous contact with “psychiatrics or counsellors”.

• He had a 76 year old sister in a nursing home whom he noticed was “off the air” on some days when he visited.

• He had an older brother who was also in a nursing home but did not appear to have any cognitive difficulties.

• He had been involved in a serious motor vehicle accident in 1968 but had not suffered any long term sequelae.

• He had left school before 15 years of age and there had been gaps in his school attendances before that. He was in the lower classes and did not learn much at school.

• He reported that he defended himself in court in September/October 2016 which he now believed he should not have done as he did not know which questions to ask witnesses.

• He continued to deny his guilt in respect of all of the offences.

• He said that his memory was pretty good.

• He lived alone in his unit and was able to care for himself.

• He said that he was able to do all of the basic domestic tasks such as cooking, cleaning, laundry, shopping and budgeting.

• He was able to drive around Sydney. He took the train to Westmead at the time of the examination, arriving on time.

• He reported that his concentration was good.

• He reported that he would like to return to his previous position at Sutherland Hospital.

112. In relation to “personality assessment”, Mr Cipriani opined as follows:

“[The applicant] presented as a friendly man, who tended to ramble during interview. He was fully cooperative with the assessment. He denied being depressed or anxious at the time. He had a reasonable recall of his personal history. …

[The applicant] reported that he sometimes cries when he becomes aware that he has lost his family over the offences. He said that when this gets him down, he gets on a train and goes somewhere.

On the Depression Anxiety Stress Scales (DASS-21), [the applicant] reported normal levels of depression, anxiety and stress during the week before this examination. …

He reported feeling downhearted and blue most of the time over losing contact with his family and his wife walking out without talking to him.”

113. Under the heading Neurocognitive and Data Analysis, Mr Cipriani reported:

“[The applicant] was administered selected subtests of the WAIS-IV intelligence scale. He had no difficulty with visuospatial tasks or processing speed, though his verbal abstractabilities appeared mildly reduced (Similarities Scaled Score = 7).

Memory functions were comprehensively assessed with the Wechsler Memory Scale. This showed a relatively impaired verbal memory (Auditory Memory Index = 77). [The applicant] had difficulty encoding and recalling structured verbal information and had great difficulty learning word pairs. In contrast, his recall of visual information was average (Visual Memory Index = 92). He had difficulty recalling verbal and visual information after a delay, particularly after intervening interference.

On the WMS-III, he was fully oriented and aware of personal and current information, but showed a plateau effect on Word List 1 and a proactive interference on learning a second list. His recall following interference was limited (5/12).

Given the history of interrupted schooling and early school drop-out, I administered a number of academic achievement tests. His scores on the WIAT-ll for Word Reading (76), Numerical Operations (75) and Spelling (63) were all very low compared with presumed average intelligence pre-morbidly. He read text at a late Grade 4 level indicating that he is functionally illiterate.

His performance on measures of executive functions was variable. He had considerable difficulty generating words beginning with a particular letter and switching between categories. He lost set when performing a design fluency task …”

114. In his Executive Summary, Mr Cipriani relevantly opined as follows:

“[The applicant] had a limited education and was placed in the lower classes up to age 15, suggesting a pre-existing Specific Learning Disorder. [The applicant] mostly worked as a roustabout, shearer, farm hand, cleaner and laundry worker. He had a good work ethic and worked at St George Hospital for 2½ years, the Community Hospital for 9 years and at Sutherland Hospital for 9 years...

…

Screening for personality disorder did not suggest that [the applicant] has a pre-existing personality disorder.

…

[The applicant] continues to deny committing the offences, claiming that they would not have been possible, as his wife and family were at home most of the time. [The applicant] is now aware that he was not capable of questioning witnesses in Court in September 2016 and this is supported by current testing, indicating very limited academic abilities and difficulty encoding and recalling verbal information. …

…

[The applicant] reported distress over the charges against him, which he continues to deny. His DASS profile indicated normal levels of depression, anxiety and stress during the week of this examination. Although he does not qualify for any DSM-5 mood or anxiety disorder, current testing indicated a diagnosis of Mild Neurocognitive Disorder, suggesting a pre-clinical neurodegenerative process (his sister who is 3 years older appears to have mild to moderate dementia).

…

Current testing revealed that [the applicant] was very likely of average intelligence pre-morbidly despite his limited education. Tests of academic achievement indicated life-long Specific Learning Disorders (Reading, Spelling and Mathematics), which were taken into account in interpreting the neurocognitive data. Memory testing indicated a relatively impaired verbal memory and his learning of new verbal information was subject to interference. His associative memory appeared to be particularly affected. Executive abilities were variable, with impaired verbal fluency and cognitive flexibility and some difficulties with self-monitoring. Confrontation naming was average. There was no evidence on recognition memory measures that [the applicant] was deliberately performing suboptimally on memory testing.

Conclusions and Recommendations

[The applicant] is exhibiting a Mild Neurocognitive Disorder particularly affecting verbal memory and verbal executive functions. The condition has not affected his ability to perform activities of daily living, but it is likely that over the next 3 years his cognitive impairments will increase.

[The applicant] has good recall of historical information currently, but he has particular difficulty with learning and recalling new verbal information, which combined with his very limited academic abilities and reduced hearing, may make it difficult for him to follow court procedures.

[The applicant] does not have any anxiety or mood related disorders, though he was briefly distressed at interview as a result of convictions relating to sexual abuse.”

115. It should be noted that his hearing difficulties were identified at trial and were overcome by providing him with a hearing loop. No point was taken in the appeal that the applicant’s hearing difficulties adversely affected his defence.

116. A report was obtained from Dr JA Roberts, a psychiatrist, dated 14 May 2017. This report was obtained specifically for the appeal and was placed before the Court as fresh evidence. The Crown did not object to its admissibility on that basis. It was common ground that the interview between Dr Roberts and the applicant took place by telephone on 10 May 2017. There was no face to face interview, either by way of audio-visual means or in person.

117. The material before Dr Roberts comprised a report from Mr Cipriani and the applicant’s solicitor’s assessment of trial transcripts, to the effect that from those transcripts it appeared that the applicant was unfit to be tried.

118. Dr Roberts set out the Presser criteria as follows:

“i. Ability to understand the charge – this involving a basic understanding of the essential facts of the charge and the elements of the offence.

ii.    Ability to plead the charge and exercise the rights of challenge – the client must understand that a plea of guilty is an acceptance that the essential facts of elements of the offence are established.

iii.    An understanding of the nature of the proceedings, namely, that it is an inquiry as to whether he/she committed the offence charged – the client must understand that he/she is involved in a formal process inquiry into his/her responsibility for the matter alleged and be aware of the potential consequences of that process.

iv.    Ability to follow the course of the proceedings so as to understand what is happening in the Court in a general sense, though not necessarily understand the purpose of all the various Court formalities – this involves following the proceedings and understanding the roles of the various participants.

v.    Ability to understand the substantial effect of the evidence that may be given – the client must have an awareness of the implications of the prosecution evidence.

vi.    Ability to make a defence or answer to the charge - the client must be able to give the Court a basic version of the facts as he/she claims them to be, if necessary through his/her lawyer, by entering the witness box and responding to questions and evidence in chief and cross-examination.”

119. Dr Roberts advised that his opinion related primarily to point (v), i.e. “the ability to understand the substantial effect of the evidence that may be given – the client must have an awareness of the implications of the prosecution evidence”. Dr Roberts set out his conclusion on this issue under the heading “Executive Summary” as follows:

“It is my opinion on psychiatric grounds that [the applicant] did not at the time of the Trial for the offences alleged, and continuing until the present would not have had the psychiatric knowledge, education and intellectual capacity to be aware of the implications of the prosecution's evidence and would not have been able to therefore challenge the forensic liability of the evidence provided.”

120. In the course of taking a history from the applicant, Dr Roberts was told that he was suffering from prostatic cancer and that he had refused treatment which he referred to as a “three monthly injection”. Dr Roberts reported:

“When questioned as to why he had refused such treatment [the applicant] replied that he was happy enough to die now.”

121. Dr Roberts determined that that statement was consistent with a Major Depression, and that the applicant when asked whether he was suffering from depression replied that he was “100% depressed”. Dr Roberts confirmed that diagnosis by referring to a number of physical symptoms which he said were indicative of the applicant suffering from a Major Depression.

122. Relevant history received by Dr Roberts was that the applicant had difficulty in remembering and that he needed to write things down. The applicant considered that his concentration was satisfactory. Dr Roberts commented on the applicant’s symptomatology as follows:

“I note that [the applicant] describes a difficulty in memory which would be consistent with the conclusion of Mr Dino Cipriani in his report of 22 October 2016 that [the applicant] was exhibiting a mild neurocognitive disorder.

…

Although [the applicant] at one point affirmed depression and at this point denied it, aspects of [the applicant’s] presentation namely his refusal to follow medical advice in regard to optimal treatment for his prostatic cancer, and his assertion that he was "happy enough to die now" would be consistent with a major depressive condition.”

123. In relation to self perception, Dr Roberts was told that the applicant did not see himself as stressed. He did not agree that he had a mental or nervous illness, disorder, condition or problem.

124. In relation to the trial, Dr Roberts reported the following:

“In discussing the trial [the applicant] indicated that he had defended himself.

When asked as to why he had not instructed a solicitor [the applicant] retorted "why did I need a solicitor I was innocent".

…

[The applicant] was aware as to the nature of the charges that had been made against him. In describing what had occurred at trial, in terms of the evidence given, [the applicant] asserted “there was no evidence whatsoever, it was only what TF told her friends 40 years later”.

[The applicant] has limited understanding in regard to the function of the Judge since when asked as to what the role of a Judge was in a Court of law he replied "the judge does nothing".

He has an understanding as to the role of the prosecutor and a solicitor assigned to him and the role of the jury.

In regard to the accusations made by his daughter TF, [the applicant] stated that TF had been seeing a counsellor at St George Hospital, the counsellor being a sexual assault counsellor.

[The applicant] stated that his daughter TF’s recollections of the assaults came back to her in the context of a light coming over her head – I’m not clear as to whether the light is meant to come over TF's head or that of her counsellor; that prior to that light she could not remember.

[The applicant] commented in regard to his biological children and stepchildren that he had given all his family a good life and had never treated his children differently; that he had never hit his children.

In regard to his family he commented on having three daughters and a son and that in regard to his wife he had thought that she would tell the truth. He commented on having been separated from his family [in] 2011.”

125. In relation to that material, the comment by Dr Roberts was:

“In the context of the account given namely of memories returning at a specific point in time in the context of the perception of a light [the applicant] would not have had the understanding, knowledge and intellectual capacity to understand and deal with the evidence placed before the Court and its implications for his trial.”

126. The final comment by Dr Roberts was as follows:

“While this may well have been the case at the time of Mr Cipriani assessing [the applicant], [the applicant’s] statement that he would be happier enough to die now and his refusal to accept appropriate and recommended treatment for his cancer of the prostate is consistent with a depressive element.

In summary, I am of the view based on my qualifications and experience in psychiatry and my involvement in the giving of evidence in regard to memory and the forensic reliability of memories having returned as opposed to memories always having been held, I would be of the view that [the applicant] was by virtue of his education, intellect and knowledge lacking in the ability to understand the substantial effect of the evidence that was given and that he would not have had the capacity to have an awareness of the implications of the prosecution evidence.

I do not consider that [the applicant] could adequately in the absence of that knowledge comprehend the implications of the prosecution evidence given.”

127. At the trial, the applicant was assisted by Mr Bewes, who acted in the capacity of a McKenzie friend. Mr Bewes had no legal training and had “been in administration all his life”. When asked about his position by the trial judge, Mr Bewes responded:

“HER HONOUR: And you've spoken to [the applicant] about getting a lawyer, I assume?

ME BEWES: Yes, I've been involved since the start of this, I work with [the applicant], and only because of my background, and I've been in administration all my life. I helped him out, said I'll give you assistance filling forms out, I've done all the paperwork for him, completed everything, sent them through to the solicitor for him. Been in meetings with barrister initially with the solicitors with him. I've endeavoured at length, great length, repeat at great length, to try and explain to him the importance of what's involved in this case and the importance of having the representation by counsel, to find yourself – believe he is innocent, I said well, I believe what you're saying to me. I take persons word as they come. But I said the most important point is you need the representation to prove that you are innocent and you've got your life in front of you to retire. I've spoken to him at length on this. He feels that he shouldn't have to waste his money because he's innocent of these facts. …” (T.28, 29.8.2016))

128. It should also be noted that the choice not to have representation was that of the applicant. The relevant exchange between the applicant and the court was as follows:

“HER HONOUR: Mr Crown, I assume all avenues have been exhausted so far as the legal representative’s situation are concerned?

CROWN PROSECUTOR: Yes, as I understand an application for legal aid was refused. And an appeal. There were lawyers involved at one time, I wasn’t involved at that stage so I had no direct contact with them. If [the applicant] wants some time to seek out further avenues of obtaining legal representation, I wouldn’t stand in his way.

…

CROWN PROSECUTOR: Would not. There are some very complex matters, it’s not an easy case even for lawyers but the Crown can’t force him to do anything. As I said to your Honour this morning I explained – well, I didn’t explain, I listed the types of areas of the context, tendency, coincidence and there’s some law involved in those. I’m quite sure he would benefit from the assistance of a legal practitioner but if he chooses not to –

HER HONOUR: Mr [applicant], I understand you had a private solicitor and barrister, is that right?

APPLICANT: Yes, that’s true.

HER HONOUR: They no longer appear for you because there was a funding issue, is that right?

APPLICANT: There’s a funding issue, yes.

HER HONOUR: You applied for legal aid –

APPLICANT: Yes, and was –

HER HONOUR: -- and you were refused legal aid?

APPLICANT: Yes.

HER HONOUR: You appealed against that decision –

APPLICANT: Yep.

HER HONOUR: -- and the appeal was dismissed.

APPLICANT: Dismissed, yes.

HER HONOUR: Have you thought about – well, have you done anything else to try and get a lawyer?

APPLICANT: No. No, because I know – I know the facts of the case and I don't see why I should have to have a lawyer and the only other money I got is the money I got leftover from the house which I paid the mortgage for 54 years for, which is very little, it won't even buy me a one bedroom unit. It might buy me a good garage in the country somewhere to live, to finish the rest of my life.

HER HONOUR: You might spend the rest of your life in gaol.

APPLICANT: that might be all right, I’ll be able to leave the kids some money then.” (T.27.25-28.31)

129. At the conclusion of the evidence, the Crown did not address the jury. This was done in deference to the applicant representing himself. The applicant briefly addressed the jury from a document which he and Mr Bewes had prepared.

130. The trial judge refused to allow the applicant to submit to the jury that a comparison between the evidence of the Crown witnesses and their statements suggested that they had been coached and had memorized word for word much of their statements. Accordingly, the issues raised by the applicant in his address were the inability of TF to say whether he was circumcised or not and the presence of RM in the house when most of the offences occurred. He submitted that those matters placed considerable doubt on whether the offences occurred (T.353.12-354.22).

CONVICTION APPEAL

Ground 1 – A miscarriage of justice was occasioned as a result of the applicant’s unfitness to be tried.

131. The applicant noted that he had appeared for himself and that no question as to his fitness to be tried was raised at trial, either by the prosecution or by the trial judge. In that regard, the applicant noted that ss 36(1) and 37(2) of the Criminal Procedure Act 1986 (NSW) allowed a person to appear personally and conduct his own case in a criminal trial. Despite that right, the applicant submitted that a trial court had an overriding duty to ensure that a criminal trial was fair. The applicant submitted that in the circumstances which prevailed at his trial, both the Crown and the court should have turned their minds to the possibility of the existence of a question as to his fitness to be tried.

132. The applicant accepted that the test for determining fitness to be tried is whether he had a sufficient mental state to comprehend the course of the proceedings involved in the trial so as to follow those proceedings and to make a proper defence.

133. The applicant accepted that the minimum standard before an accused could be tried without unfairness or injustice was that set out in R v Presser at 48 (Smith J) which was approved by the High Court in Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 at 8 and Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 at 244. There Smith J said:

“[The applicant] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

134. The applicant submitted that his capacity at trial did not reach that minimum standard. In making that submission, he relied upon that part of the Cipriani report to the effect that he was not capable of questioning witnesses in court in September 2016 because of his very limited academic abilities and difficulty encoding and recalling verbal information. The applicant accepted that the Cipriani report did not refer to the Presser criteria and that the strong likelihood was that Mr Cipriani had not considered the Presser criteria.

135. The applicant submitted that where fitness to be tried was raised for the first time on appeal, this Court could hold that there had not been a miscarriage of justice only if it was affirmatively persuaded that the court below, acting reasonably could not conclude that the accused was not fit to be tried. Put another way, this Court was bound to set aside the conviction if there was a miscarriage of justice and there is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial. There is a miscarriage of justice if there is a real and substantial question to be considered about the accused’s fitness.

136. In support of that proposition, the applicant relied upon the statements of principle by Gaudron and Hayne JJ in Eastman v The Queen [2000] HCA 29; 203 CLR 1, notwithstanding that their Honours were in the minority in that judgment. The applicant relied upon the following from the judgment of Gaudron J:

“86   Unless there is material to suggest otherwise, a person is presumed fit to plead. And that is so both at trial and on appeal. At trial however, that presumption is displaced if there is material which raises a question as to that person's fitness to plead. Moreover, if there is a question as to the accused person's fitness to plead, the trial must stop unless and until the appropriate body determines that he or she is fit to plead.

87   Once it is accepted that the law acknowledges that a person who is not fit to plead may also lack the capacity to raise that issue, it must follow that the role of an appellate court differs from that of a trial judge in one respect only, namely, that it looks to the past whereas the trial judge is concerned with events as they are happening. More precisely, if there is material suggesting that the appellant was not fit to plead, an appellate court must inquire whether, at the time of the trial, the appropriate tribunal could not reasonably have found the appellant not fit to plead.” [Footnotes omitted]

137. The applicant relied upon observations to similar effect by Hayne J:

“319   The Full Court was bound to set aside the conviction if there was a miscarriage of justice. And there is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial. That is, to adopt the terms used earlier, there is a miscarriage of justice if there is a real and substantial question to be considered about the accused's fitness. The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this Court and in intermediate appellate courts in which questions of fitness have been raised on appeal. There the question for the appellate court has been treated as being whether there was a question as to the accused's fitness, not whether the appellate court was persuaded that the accused was not fit. Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside.

320   A conclusion by a Court of Criminal Appeal that an accused may not have been fit to plead or stand trial requires the court to quash the conviction. There has been a trial where the accused may not have been fit and that is a miscarriage of justice. …” [Footnotes omitted]

138. It was common ground that the above statements of principle set out the relevant law and have been followed in a number of decisions by this Court (R v RTI [2003] NSWCCA 283; 58 NSWLR 438; R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284; Regina v Henley [2005] NSWCCA 126 and Kirkwood v R [2006] NSWCCA 181).

139. The applicant relied upon the Cipriani report as showing that he was functionally illiterate. The applicant relied upon the test findings which led to Mr Cipriani expressing that conclusion. He submitted that this evidence raised a question of his fitness to be tried.

140. The applicant submitted that his lack of education and verbal skills put him at a disadvantage when questioning the Crown’s witnesses. It also, he submitted, made it difficult if not impossible for him to properly put forward his defence case. He submitted that the trial involved language and words and that was an area where he was deficient and for this reason, was seriously disadvantaged in the conduct of the trial.

141. The applicant submitted, by reference to examples in the transcript, that he was significantly prejudiced in presenting his case. The applicant submitted that he did not understand the objection to evidence process and consequently, evidence was allowed to be placed before the jury which if he had understood the process, he would have been able to prevent. By way of illustration, the applicant relied upon an objection to evidence which he made at T.154 and the admission of the evidence relating to the telephone message said to have been left by him on KM’s phone and which was subsequently heard by Ms Trajcevska.

142. The applicant relied upon the evidence of Dr Roberts and in particular, his comments on suppressed and recovered memory. The applicant submitted that this was a complicated concept about which he knew nothing and as a result, he was not able to deal with that evidence when TF gave it.

143. The applicant also relied upon the conclusion of Dr Roberts to the effect that based on his qualifications and experience, he (the applicant) was “by virtue of his education, intellect and knowledge lacking in the ability to understand the substantial effect of the evidence that was given and that he would not have had the capacity to have an awareness of the implications of the prosecution evidence”.

Consideration

144. The decisions in R v RTI and R v Rivkin are useful because there the question of whether an accused was fit during the trial only arose after the trial in an appeal against conviction. In RTI Howie J (with whom Tobias JA and Shaw J agreed) said (at [21]):

“… In order to enliven this Court’s jurisdiction, it is sufficient if there is material before the Court raising a question as to the appellant’s fitness to stand trial before Judge Twigg. If such material exists, the Court has to determine whether there was the possibility of a miscarriage of justice arising. If the appellant was unfit at the time of the two trials before Judge Twigg, each of those trials was a nullity and the convictions would have to be quashed.

…

31    In light of the passages quoted above from Eastman v The Queen and Eastman v DPP (ACT) it seems to me that the procedure adopted in R v Kent is no longer appropriate. If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the Court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the court acting reasonably must have found that the accused was fit to stand trial. It is only if the Court can come to that finding that there will be no possibility of a miscarriage of justice.”

155. In any event, the conclusion is based on an incorrect statement of the evidence. Quite clearly, Dr Roberts believed that evidence had been given by TF that at some point late in her life, memories of sexual abuse which had been repressed, emerged and that this was the basis for her complaints. That was not the evidence. Her evidence was that she had always had a clear recollection of the events themselves. What she recalled when she was undergoing counselling were the words which the applicant had said to her when the events which gave rise to the offences in Counts 6 and 7 occurred. The recovered memory evidence did not relate to any of the other counts.

156. The relevant evidence was given under cross-examination as follows:

“Q. You were quite specific about the words you say [the applicant] said to you, and again I will ask you this was quite some considerable time ago, are you quite sure those were the - how is it - I'm sorry. How is it you can be quite sure those are the words he said?

A. Because how that came to me, the exact words, the recollection of the exact words, was I was having therapy with a sexual assault counsellor and I just happened to be walking along a hallway and all of a sudden the whole thing came to my head, everything about it.

Q. When was this, I'm sorry?

A. I can't tell you the year. Sorry, it would be - I can't tell you the year.

Q. That's okay, I understand you can't tell me the year. Perhaps a ballpark indication, is it in the last --

A. It's in the last few years because I was having therapy.

Q. All right. And prior to that therapy you wouldn't have been able to recall these words?

A. Correct.

Q. So --

A. The taste of the dirt, everything all came back to me.

Q. Can I ask you how --

A. All of the - go on.

Q. How can you be so confident that the memory is accurate after all this time?

A. Because I know what I felt. I know what I went through. I have known it my whole life, different scenarios that he did to me. Not necessarily all the words, bits and pieces all came together.

Q. Did people help you put the events - -

A. No.

Q. – together, the counsellor for example perhaps?

A. No.” (T.186.4-.40)

170. Accordingly, the only memories “recovered” by the applicant were the words used during the commission of the offences in Counts 6 and 7. That was a very small part of the evidence of TF. The issue between her and the applicant in relation to this and the other evidence continued to be whether the events alleged by her had occurred.

171. That misunderstanding of the evidence and his misstatement of the relevant Presser criterion by extending it to include psychiatric knowledge, so as to be able to mount an “able” defence as distinct from understanding the substantial effect of the evidence, renders the report of Dr Roberts of little value in this appeal.

172. The error in the approach of Dr Roberts was identified by the plurality (Gibbs, Mason and Wilson JJ) in Ngatayi v The Queen. Their Honours said at 8:

“ … The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in R v Presser [1958] VR 9; (1958) VR 45, at p 48 that the test needs to be applied "in a reasonable and common sense fashion". Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused "need not have the mental capacity to make an able defence". The reference to mental capacity is explained by the fact that these remarks were made in relation to a statute which spoke of insanity, and not of want of capacity "for any reason". The view that the accused need not have sufficient capacity to make an able defence, or to act wisely or in his own best interest, is accepted also in English cases such as Regina v Robertson (1968) 1 WLR 1767; (1968) 3 All ER 557 and Regina v Berry (1977) 66 Cr App R 156, at p 158 , and accords with common sense.”

173. When the report of Dr Roberts is read in its entirety, he was saying that because the applicant did not have the psychiatric knowledge to understand the implications of a repressed memory subsequently recovered, the applicant was not fit to be tried. As was made clear in R v Ngatayi v The Queen that is an incorrect interpretation of that part of the Presser criteria.

174. In this context, it needs to be kept in mind that the Presser criteria constitutes minimum standards. It should also be kept in mind that the recovered memory evidence emerged in cross-examination. It was not supported by any scientific opinion. Moreover, it continued to be subject to the defence raised by the applicant, i.e. that these events never happened and that the evidence of TF was inherently improbable because such a long period had elapsed between the occurrence of the events and her making complaint about them.

175. Dr Roberts’s findings as to the applicant’s depression at the time of interview do not impact on the conviction appeal since the major depression clearly post-dated the trial and was directly related to the applicant’s time in custody. It was never suggested by Dr Roberts that the applicant’s depression existed during the trial and had any effect on the applicant’s fitness to be tried.

176. It follows from the above that there was no material at trial or before this Court which raised a question as to the applicant’s fitness to be tried. Nothing emerges from the transcript of the trial to that effect. On the contrary, for the reasons already given, it is clear that the minimum standards in the Presser criteria were satisfied. The reports of Mr Cipriani and Dr Roberts do not change that situation.

177. Mr Cipriani did not consider the Presser criteria and his conclusions were expressed in a different context. The conclusions themselves, however, do not raise a question as to the applicant’s fitness to be tried. They identify his poor education and his difficulty with words. They also establish that he was of average intelligence. Most particularly, neither Mr Cipriani nor Dr Roberts considered the transcript of the evidence at trial.

178. Dr Roberts’ report was prepared under difficult circumstances being based as it was on a telephone conversation with the applicant. In reaching his conclusion, he misapplied the relevant part of the Presser criteria upon which he relied. Even if he had correctly applied the Presser criteria, his conclusion was based on a fundamental misunderstanding of the evidence and its importance in the trial. It follows that the presumption that the applicant was fit to be tried applies because it has not been displaced by material which raised a question as to his fitness to be tried.

179. If I am wrong in that conclusion, for the same reasons, I have concluded that had the question of the applicant’s fitness to be tried been raised at trial, I am affirmatively persuaded that the court below acting reasonably could not conclude that the applicant was not fit to be tried.

180. The conviction ground of appeal has not been made out.

THE SENTENCE APPEAL

181. The Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) has appealed against the sentence imposed by Judge Flannery SC on 2 December 2016. In order to avoid confusion, I will continue to refer to the offender as the applicant, even though he is the respondent to the sentence appeal.

182. As already indicated, the applicant pleaded not guilty to 14 historical child sexual assault offences and following a trial, a jury found him guilty of 10 of those counts. The counts on which the applicant was convicted were:

• Four counts of indecent assault of a female under 16 years, contrary to s 76 of the Crimes Act.

• One count of carnal knowledge of a girl aged between 10 and 16 years, contrary to s 71 of the Crimes Act.

• Three counts of carnal knowledge by a stepfather of a girl aged between 10 and 17 years, contrary to s 73 of the Crimes Act.

• Two counts of assault and commit an act of indecency, contrary to s 61E(1) of the Crimes Act.

183. The maximum penalty for those offences were as follows:

• Section 76 – imprisonment for 6 years.

• Section 71 – imprisonment for 10 years.

• Section 73 – imprisonment for 14 years.

• Section 61E(1) – imprisonment for 4 years.

184. The sentence hearing took place on 4 November 2016. The sentence imposed by the sentencing judge was an aggregate term of imprisonment for 6 years and 7 months, commencing 4 November 2016 and expiring 3 June 2023, with a non-parole period of 2 years and 3 months expiring 3 February 2019. The non-parole period was 34% of the total sentence.

185. The indicative sentences were as follows:

• Count 2 – 2 years imprisonment.

• Count 3 – 3½ years imprisonment.

• Count 4 – 2 years imprisonment.

• Count 5 – 3½ years imprisonment.

• Count 6 – 2 years imprisonment.

• Count 7 – 3½ years imprisonment.

• Count 9 – 2 years imprisonment.

• Count 10 – 3½ years imprisonment.

• Count 13 – 6 months imprisonment.

• Count 14 – 9 months imprisonment.

186. The factual background to the offences is set out in the summary of the Crown case in the conviction appeal. That evidence allows the offences to be grouped into five incidents. Counts 2 and 3 comprise the incident when TF was aged about 10 and taken to a bedroom in the house in Wagga Wagga. Incident two comprises Counts 4 and 5 when TF was aged 10 or 11 when she was again taken to the same bedroom. Incident three comprises Counts 6 and 7 when TF was aged 10 and occurred when the applicant took her under the house. Incident four comprises Counts 9 and 10 when TF was aged about 11 and the applicant again took her under the house. Incident five comprises Counts 13 and 14 which occurred when TF was aged 16 and was being taught how to drive by the applicant.

187. In the sentencing proceedings, the report of Mr Cipriani of 27 October 2016 was before the court. The applicant did not give evidence in the sentence proceedings.

188. The sentencing judge made the following findings. In relation to Counts 2, 4, 6 and 9 her Honour found that they were “serious examples of their type” as they involved digital penetration of the vagina of the applicant’s 10 year old stepdaughter. Her Honour considered that Count 3 was a serious example of the offence as TF was aged 10 at the time and was the applicant’s stepdaughter. The sentencing judge qualified that finding by saying:

“I have regard to the fact that the penetration involved only the head of the penis and I am satisfied was not for a protracted time.”

189. In relation to Counts 5, 7 and 10 the sentencing judge found that these were serious examples of the offence because TF was aged 10 or 11 at the time. Her Honour noted again that the offending was not for a protracted period. Her Honour was satisfied that Counts 13 and 14 were offences of a relatively low level but that Count 14 was the more serious because it involved skin to skin touching of the vagina.

190. The sentencing judge found that the applicant’s position of trust was an aggravating feature in all of the offences, except for Counts 5, 7 and 10 where it was an element of the offence.

191. Her Honour had regard to the following subjective circumstances. The applicant was aged 73 at the time of sentence. Despite his poor schooling, he had been in regular employment for the whole of his life. His relationship with TF’s mother ended in 2011 after the allegations were made, resulting in a divorce in 2012. Since then the applicant had lived alone and received the age pension.

192. The sentencing judge took into account the diagnosis of a mild neurocognitive disorder which would gradually deteriorate over time. Her Honour took into account that he had been recently diagnosed with prostate cancer and that Dr Bucci, a radiation specialist, opined that he had a “high risk” prostate cancer which required aggressive radiotherapy and hormonal therapy. The treatment would involve 18 months of hormonal therapy entailing six three monthly depot injections, to be followed by between five and eight weeks of radiotherapy. The applicant received his first depot injection on 22 September 2016.

193. The applicant had no record of previous convictions. Her Honour accepted that apart from the commission of these offences, he was a person of good character. Her Honour found that the applicant was unlikely to re-offend and that he had reasonable prospects of rehabilitation, despite his lack of remorse.

194. The applicant was diagnosed as suffering from a reactive depression on 11 October 2016.

195. Her Honour found that specific and general deterrence while relevant, had reduced significance in relation to the applicant. This was because of the significant delay between the offending and sentence during which there had been no further offending. Her Honour took into account delay but only from 2011 when the applicant first found out about the allegations. Her Honour took into account that she was sentencing for stale crimes, which required a measure of understanding and flexibility of approach, particularly having regard to the applicant’s age and his deteriorating health.

196. Her Honour found special circumstances because of the applicant’s age and health and because it was his first time in custody. Her Honour took into account that the offences occurred when a different and more lenient sentencing regime in respect of non-parole periods applied. Her Honour noted that at the time of the offences, sentences imposed for such matters included non-parole periods that were one-third to one-half of the sentence imposed.

197. Because five separate incidents were involved, her Honour indicated her intention for there to be some accumulation but also a degree of concurrency in the sentence.

198. The Crown relied upon a single ground of appeal:

The aggregate non-parole period is manifestly inadequate.

199. The Crown accepted that for it to succeed, it had to establish that the non-parole period imposed was unreasonable or plainly unjust in a sentencing environment where there was no single “correct” sentence and judges at first instance were to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 and Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]).

200. The Crown did not challenge her Honour’s finding of special circumstances, nor as to the historical practices that existed at the time insofar as the imposition of non-parole periods was concerned. The Crown accepted that the ratio of the non-parole period to the head sentence was a discretionary decision (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73]).

201. The Crown submitted that despite those concessions, her Honour was still required to ensure that the non-parole period constituted the minimum term of imprisonment that appropriately reflected the criminality in the offences (Power v The Queen; Selenski v The Queen; Lyons v The Queen [1974] HCA 26; 131 CLR 623; Magnuson v R [2013] NSWCCA 50 at [88]; LJS v R [2015] NSWCCA 47 at [17]; Denham v R [2016] NSWCCA 309 at [108].

202. The Crown submitted that it remained incumbent upon her Honour to impose a non-parole period that adequately reflected the objective gravity of what the applicant had done to his stepdaughter and that an aggregate non-parole period of 2 years and 3 months in this instance simply did not achieve that result (CT v R [2017] NSWCCA 15 at [52]).

203. The Crown relied upon the following matters:

• The grave breach of trust which all of the offences involved.

• Most of the offences involved serious sexual acts upon his stepdaughter who was vulnerable and defenceless.

• At the time of the first four incidents, his stepdaughter was as young as 10 or 11.

• All of the first four incidents involved some degree of force.

• Given the overall criminality of the offending, a reduction of the non-parole period to one-third of the aggregate total sentence was not appropriate.

204. In relation to sentencing practices at the time, the Crown relied upon the observations of this Court in Denham v R (Payne JA; Fagan J; N Adams J) at [109]:

“The application of principle, it seems to us, means that while it is necessary to take into account the fact that non-parole periods of between 35-50% of the head sentence were fixed in relation to sentences imposed between 1968 and 1986, no mere mechanical or mathematical transposition of that percentage approach to the task required by the Crimes (Sentencing Procedure) Act is warranted. It remains critical that the non-parole period fixed by this Court represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice.”

205. The Crown submitted that the applicant’s age and ill health could not justify the imposition of a sentence (including the non-parole period) that failed to have regard to the objective gravity of the offence (Woodward v R [2017] NSWCCA 44 at [88]).

206. In relation to the question of delay, the Crown relied upon the observations of Beech-Jones (with whom Garling J and I agreed) in Wilson v R [2017] NSWCCA 41 where his Honour said in relation to a victim who was aged between 7 and 11 years (at [48]):

“… Finally with delay it is also said that a “sentence for a stale crime does call for a measure of understanding and flexibility of approach” (Blanco at [16]). I do not accept that the commission of an offence on someone so young even 30 years ago should necessarily be considered a “stale crime”.”

Consideration

207. The limitations on Crown appeals are well known and can be briefly stated. Crown appeals pursuant to s 5D of the Criminal Appeal Act must be brought by the Crown for the primary purpose of a Court of Criminal Appeal providing governance and guidance to sentencing courts.

208. They may be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]; Markarian v The Queen; R v Tuala [2015] NSWCCA 8 at [94]).

209. A Court of Criminal Appeal in the exercise of its jurisdiction retains a residual discretion to decline to interfere with a sentence, even though the sentence might be considered to be erroneously lenient. The limited purpose of Crown appeals of providing governance and guidance is the primary consideration relevant to the exercise of the residual discretion which “does not extend to the general correction of errors made by sentencing judges” (Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR at 462 [36].)

210. This Court is not a court hearing the matter anew and is not entitled to substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way. The discretion which the law commits to sentencing judges is of vital importance in the administration of criminal justice and a wide measure of latitude should be accorded to sentencing judges. There is no single correct sentence and a sentencing judge should “be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime” under which the sentencing is effected (Markarian v The Queen at [27]).

211. The observations of Howie J (with which Grove and R A Hulme JJ agreed) in PH v R [2009] NSWCCA 161 are of assistance:

“33   In a case such as the present where the offender is aged 73, has health issues that will affect his ability to cope with imprisonment and suffers intellectual disabilities, whatever be their effect upon his appreciation of the seriousness of his conduct, general deterrence will have little role to play in the length of the sentence to be imposed. This is simply an application of the sentencing principle, found chiefly in sentencing mentally handicapped offenders, that a particular offender may not be a suitable person upon whom to visit the full extent of general deterrence by making an example of him to others.

34    In any event the fact that, after more than 30 years of non-offending since the commission of the crimes, and despite his age, health issues and intellectual disabilities, the offender is being sent to prison for the first time must have a very significant deterrent effect upon potential offenders. To moderate the need for general deterrence when deciding upon the length of the sentence to impose in such a case as that of the applicant could hardly be taken as encouragement to others to offend or to lead others to think that they will be treated with the same leniency if they offend in the same way.”

212. On the other hand, the offending in this matter was of a very serious kind and extended over a period of 5 – 6 years. In those circumstances, it is difficult to reconcile the very modest non-parole period with the oft stated requirement that the non-parole period represent the minimum time that an offender should spend in custody, having regard to the seriousness of the offending. There is a real tension between that requirement and the principle that when sentencing for historical offences, the sentencing practices which applied at the time of the offending should be given effect to.

213. The conclusion I have arrived at, not without some reservations, is that the non-parole period imposed in this case does not adequately reflect the minimum time which the applicant should spend in prison because of the seriousness of the offending. In my opinion, the sentence imposed is manifestly inadequate because of the inappropriately short non-parole period.

214. That does not end the matter. There is the question of the residual discretion to be considered.

215. As already indicated, included in the material before the Court in the conviction appeal, and relevant to the exercise of the residual discretion, is the report of Dr Roberts. That report makes clear that the applicant is suffering from a Major Depression. That depression has manifested itself in a number of ways which Dr Roberts identified. One of them was the applicant’s refusal to continue with the treatment prescribed for him in respect of what was described as his “high risk” prostate cancer.

216. The applicant’s response to Dr Roberts when asked why he had refused treatment, i.e. that he was “happy enough to die now” is not only confirmatory of the diagnosis of Dr Roberts but is indicative of a high level of despair and hopelessness on the part of the applicant.

217. There would appear to be a real risk that should this Court intervene and increase the applicant’s sentence, this will further aggravate his Major Depression and will almost certainly strengthen his determination not to undergo treatment for his “high risk” prostatic cancer.

218. Those considerations strongly favour the application of the residual discretion.

219. Accordingly, although I have concluded that the sentence imposed is manifestly inadequate, in the exercise of the residual discretion I would decline to intervene and resentence the applicant.

220. The orders which I propose are:

(1)   In relation to the conviction appeal, leave to appeal is granted but the appeal is dismissed.

(2)   In relation to the Crown appeal against sentence, the appeal is dismissed.

221. GARLING J: In my view the sentence imposed upon the appellant was unduly lenient, but the Crown has failed to persuade me that the Court’s residual discretion ought not to be exercised and that its appeal ought to be upheld.

222. I agree with the orders proposed by Hoeben CJ at CL

223. BELLEW J: I agree with Hoeben CJ at CL.

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Decision last updated: 21 June 2017