Kontaxis v The Queen

[2021] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Kontaxis v R [2021] NSWCCA 72

Hearing dates:

5 March 2021

Decision date:

21 April 2021

Before:

Basten JA at [1];
Walton J at [8];
Button J at [13]

Decision:

(1) Refuse an extension of time within which to seek leave to appeal;

(2) Dismiss the application for leave to appeal filed on 22 June 2020 as incompetent.

Catchwords:

CRIMINAL PROCEDURE — power to extend time for leave to appeal — delay of years between imposition of sentence and bringing of application —extension refused on basis that expansion not warranted — no acceptable explanation for delay in application — submissions of applicant largely based on assertions of fact not founded on evidence in application

SENTENCING — appeal against sentence — fresh or new evidence — documentary evidence tendered on behalf of applicant in proceedings on sentence sought to be impugned years later — issue of availability at time of sentence of material advanced on all grounds — relevance of asserted onerous prison conditions — relevance of asserted exceptional hardship to family of incarcerated applicant — grounds not made out

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M, 61O, 66C

Criminal Appeal Rules, rr 3A, 3B

Cases Cited:

Khoury v R [2011] NSWCCA 118; 209 A Crim R 509

Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49

R v Birks (1990) 19 NSWLR 677

R v Fordham (1997) 98 A Crim R 359

R v Jarrold [2010] NSWCCA 69

Category:

Principal judgment

Parties:

James Kontaxis (Applicant) (self-represented)
The Crown (Respondent)

Representation:

Counsel:

E Wilkins SC (Respondent)

Solicitors:

Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/10523

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 September 2016

Before:

Mahony SC DCJ

File Number(s):

2015/10523

Judgment

1. BASTEN JA: In circumstances fully explained by Button J, on 2 September 2016 the applicant was sentenced by Mahony SC DCJ to imprisonment for 8 years, with a non-parole period of 6 years. He was represented at the sentencing proceeding by counsel.

2. A notice of intention to seek leave to appeal was filed on 6 September 2016. The effect of such a notice is to extend the three month period within which an application for leave to appeal may be lodged to six months: Criminal Appeal Rules, r 3A, r 3B. The Court may further extend the period within which an application for leave to appeal may be lodged, and did so in this case on at least two occasions, with the result that time expired in March 2018. More than two years then passed before an application for leave to appeal was filed, on 22 June 2020. This Court may again extend the period for which a notice of intention to apply for leave to appeal has effect, although the period may have already expired: r 3A(2).

3. No doubt the power to extend time should be exercised generously in favour of an applicant, and particularly in favour of an unrepresented applicant. However, the power should not be exercised unless the applicant persuades the Court that expansion of the period fixed by the rules is warranted. In this case, an additional extension of two years three months is required up until 22 June 2020 when the application for leave to appeal was filed. (An amended notice was filed on 4 September 2020.) If an extension were granted, the effect would be to permit an application for leave to appeal against sentence to be filed some three years nine months after the sentence was imposed. No acceptable explanation for the delay has been provided. The Director of Public Prosecutions opposes the extension of time, but accepts that an extension should be granted if the Court sees merit in the proposed appeal. The Director also opposes a grant of leave to appeal.

4. The circumstances of the offending and the sentencing have been explained in detail by Button J, as have the grounds of appeal and the nature of the submissions made by the applicant in support of those grounds.

5. The applicant’s written submissions are significantly focused on assertions of fact which were not established at sentence and which are not the subject of evidence presented in a proper form in this Court. Some of the assertions may be uncontentious, but it cannot be said that all should properly be treated in that way, particularly those which are inconsistent with the statement of agreed facts presented to the sentencing judge. Even on the assumption that the factual assertions are correct, they give rise, as Button J demonstrates, to no basis for this Court to interfere in the sentence imposed by the District Court. Thus it has not been demonstrated that any arguable injustice would flow from a refusal of leave to appeal.

6. In these circumstances, I would refuse the necessary extension of time. It follows that the application for leave to appeal first filed on 22 June 2020 should be dismissed as incompetent.

7. Such a course might be taken peremptorily; however, as appears from the reasons of Button J, the course followed in this Court has been to consider the material submitted both in writing and orally by the applicant, together with the whole of the record, being the judgment and the evidential material in the District Court. The applicant can therefore rest assured that all the material has been given thorough consideration.

8. WALTON J: I have had the advantage of reading the draft judgments in this matter of Basten JA and Button J.

9. The Court heard argument of the application for leave to appeal and in that context the merits of the appeal in conjunction with the consideration of an application to extend time by the applicant. The Crown consented to that procedure but nonetheless opposed the application to extend time.

10. Whilst I have no disagreement with the consideration of the merit of the application for leave to appeal undertaken in the judgment of Button J, in my view, the applicant has not established any proper basis to extend time to appeal for the reasons provided by Basten JA.

11. It follows that the notice of application for extension of time for notice of application for leave to appeal filed on 22 June 2020 should be dismissed.

12. I would order that the application to extend time for leave to appeal is refused.

13. BUTTON J:

Introduction

This is an application for leave to appeal out of time against sentence brought by the applicant, Mr James Kontaxis. It relates to an aggregate head sentence of imprisonment for 8 years, to commence on 23 May 2016 and expire on 22 May 2024, with a non-parole period of 6 years, which will expire on 22 May 2022.

14. The sentence was imposed for six counts of having sexual intercourse with a child above the age of 10 and under the age of 14 years in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act 1900 (NSW). At the time of their commission, the maximum penalty for these counts was imprisonment for 10 years, and there was no applicable standard non-parole period.

15. Taken into account on sentence with regard to count 4 by way of a Form 1 were two further charges of having sexual intercourse with a person between the ages of 10 and 16 in circumstances of aggravation. Also on the Form 1 was an offence of indecent assault of a person under the age of 16 years, contrary to s 61M(2) of the Crimes Act. At the relevant time, the maximum penalty was imprisonment for 10 years, and there was a standard non-parole period of 8 years. There was also one charge of inciting a person under the age of 16 years, namely 13 years, to commit an act of indecency, in circumstances of aggravation, namely the complainant being under the authority of the applicant. That offence was contrary to s 61O(1) of the Crimes Act; at the relevant time its maximum penalty was 5 years, and there was no standard non-parole period.

16. The offences were committed as long ago as between 1 December 2003 and 1 March 2005. Pleas of guilty to all offences were entered almost 5 years ago, on 23 May 2016, and bail was refused on the same date. The proceedings on sentence took place on 5 August 2016, and sentence was imposed by Mahony SC DCJ on 2 September 2016, well over four years ago.

17. At the hearing of the application, it was made clear that, as at first instance, the complainant did not seek suppression of the name of the applicant.

Grounds of appeal

18. In a handwritten document, the applicant, who was represented at first instance but represented himself in this Court, set out the following grounds of appeal:

“1. Voluntary disclosure.

2. Exceptional hardship to family.

3. Not pressed.

4. Diminished moral capability [sic; culpability] – mental health illness.

5. Onerous prison conditions.

6. Incorrect evidence by Crown.

7. Added notes”. (I shall not deal with this asserted ground separately.)

Background

19. The following summary is derived from the indictment to which the applicant pleaded guilty (and from which some counts were ultimately placed on the Form 1), the documentary evidence tendered on sentence by both parties, the transcript of the proceedings on sentence, and the sentencing judgment of 2 September 2016.

Objective matters

20. The complainant, the stepdaughter of the applicant, was born on 29 May 1991. Her parents ended their relationship when she was very young. Her mother married the applicant in January 1997, and she and he subsequently had two children together. At the relevant times, the applicant and the complainant were living together as part of the one family.

21. According to the indictment to which the applicant pleaded guilty whilst represented, the ages of the complainant when the substantive offences were committed against her were (on two counts) “12 or 13 years of age”, and (on the other four) “13 years of age”.

22. In late December 2003 or January 2004, the applicant and the complainant were watching cricket on television in the lounge room of the family home in a small town on the mid-North Coast. The complainant touched the applicant on the penis. The applicant touched the breasts and vagina of the complainant (count 1 on indictment; became charge 1 on Form 1). The complainant was 12 years old.

23. In the months thereafter, there were other occasions when the applicant would touch the breasts and vagina of the complainant, both inside and outside her clothing.

24. Around the middle of 2004, the applicant and the complainant were watching television in the lounge room of the family home. The applicant told the complainant to go to bed, and she complied. Later, he woke her, pulled her towards the edge of the bed, and inserted one finger into her vagina (count 2). The penetration occurred for two or three minutes, and the complainant was in pain. The applicant then performed oral sex on the complainant (count 3). He then left her bedroom.

25. In spring 2004, the applicant and the complainant went to stay at a rural property on the North Coast of New South Wales. The two of them lived in a caravan, which contained only one bed, for between ten days and two weeks. On most nights, penetrative or non-penetrative sexual assaults occurred. They included oral sex performed by each upon the other. It was during that period that the applicant first had penile/vaginal intercourse with the complainant.

26. One night during that stay, the applicant lay on top of the complainant and inserted his penis into her vagina for a couple of minutes (count 4; Form 1 offences taken into account). The recollection of the complainant was that there was “a lot of blood” as a result. The next day, the applicant took the complainant to a pharmacist to obtain some soothing cream for her vagina, because she was in pain.

27. On another occasion during that rural stay, the two of them were at a local hotel having a meal. The applicant had consumed a great deal of alcohol. The complainant drove the two of them back to the property from the hotel. The complainant told the applicant that she “was sore”. They had penile/vaginal sexual intercourse again, for 2 to 3 minutes, whilst the applicant was on top of his stepdaughter and she was lying on her back (count 5).

28. On the last night of the stay, they were watching a film together on television. At its conclusion, the applicant had penile/vaginal intercourse with the complainant, again whilst lying on top of her, and again for a couple of minutes (count 6). At the time, the complainant was 13 years of age.

29. In January 2005, the two of them travelled to Sydney to watch a cricket game. They stayed at the home of the mother of the applicant. Whilst there, they slept in the same bed. On one occasion whilst they were in bed together, the applicant inserted his finger into the vagina of the complainant (count 7; became charge 2 on Form 1). The complainant then masturbated the applicant to ejaculation (count 8; became charge 3 on Form 1).

30. After the two of them returned to the rural property, the occasions of penile/vaginal intercourse continued. On one occasion they had intercourse of that kind in the bedroom (count 9), and on another on the lounge room floor (count 10 on indictment; became charge 4 on Form 1). On those occasions, the complainant was 13 years of age.

31. The sexual assaults became less frequent as the applicant became more dependent upon alcohol. They ceased in March 2005. Later that year, the complainant departed the family home and lived with her maternal grandfather.

32. According to the agreed facts:

“On 7 December 2014, the Complainant met with the Accused at a club in [the mid-North Coast]. During this meeting the Complainant confronted the Accused about the abuse he [sic; she] endured as a child. This conversation was recorded by the Complainant without the Accused’s knowledge or consent.

On 10 December 2014, the Accused attended the Port Macquarie Police station and made admissions to the officer at the front counter. Limited details were obtained”.

33. Some weeks later, the applicant engaged in a formal electronically recorded interview, in which he made admissions to having had a “sexual relationship with his stepdaughter” between 2003 and 2005. During the course of that interview, he said “I knew I had done the wrong thing” and “I want to make reparation”.

34. Placed before the sentencing judge was a lengthy and detailed victim impact statement of the complainant, by that stage a mature woman. It spoke eloquently of the profound psychological damage that the offences had done to her.

Subjective matters

35. A psychological report of 29 June 2016 was tendered on behalf of the applicant in the proceedings on sentence, which was the source of the applicant’s history. (He did not give evidence.) It recorded that the applicant had grown up in Greece. Raised by his grandmother, he described his early childhood as “idyllic”. He came to Australia at the age of five, and the adjustment was difficult, not least because of bullying at school based upon his ethnicity. The applicant also described “unpredictable, frequent and severe” family violence inflicted upon his mother and himself. He described himself as a “troubled youth” who experimented with drugs and alcohol, and who felt isolated as a result of his family problems and his ethnicity.

36. He left home at the age of 18, moved to the far North coast of New South Wales and resided there for ten years. He married for the first time in his late 20s. The relationship was described as “unsatisfying”, although it had led to the birth of a daughter, an adult with whom the applicant had minimal contact by the time of the proceedings on sentence.

37. The applicant had married the mother of the complainant in 1997, and he described that marriage to the psychologist as having been, and continuing to be, “very good”. He informed the psychologist that his wife had had serious health issues, and he had been involved in her care.

38. As for employment, the applicant had been asked to leave high school in year 11. After some unskilled and semi-skilled positions, he achieved a qualification in community welfare and a university degree in sociology. Notably, he worked as a youth worker with the Department of Juvenile Justice and the Department of Community Services, before leaving those positions and returning to unskilled work in 2003. At that time, he became depressed, and his alcohol intake markedly increased. He informed the psychologist that he had not been working since 2013.

39. The applicant spoke of longstanding abuse of alcohol, a variety of prohibited drugs, and some prescription drugs. He claimed to have ceased all drug and alcohol use in 2013. His position was that he had been affected by drugs and alcohol when he committed the offences.

40. The applicant gave a history of depression and anxiety, and had presented with symptoms of mood disorder, anxiety and impulse control problems. He described himself as socially capable and comfortable, but he also described periods of feeling socially anxious. He described tension and acrimony in friendships, and family and work relationships.

41. While his first marriage ended badly with a protracted battle through the Family Court, he spoke of his second marriage in positive terms. He did not identify any deficiencies in the intimacy of his relationship with his wife.

42. He denied ever being a victim of child sexual assault himself and described having an “average” sex drive. He denied having paedophilic or hebephilic attraction.

43. As for discussion of the offences, the psychologist opined that the applicant was open in his recollection and his account was consistent with the agreed facts. Although he had initially stated he did not know why he committed the offences, he then advised that during the period of the offending occurred he had lost his employment and increased his substance abuse.

44. According to the psychologist, the applicant said that, some time after the offending, he had apologised to the victim in person and asked her to forgive him. He said he had not disclosed the offending behaviour to anyone else prior to the time of his “handing himself in” at Taree Police Station in January 2015.

45. According to the psychological report:

53. Mr Kontaxis said his disclosure had been precipitated by a meeting with the victim who had tried to ‘blackmail’ him.

46. The psychologist recorded the applicant as having explained that he had not told his wife about the offending prior to his arrest due to difficult circumstances during that period: his wife having developed cancer; his son’s diagnosis of Attention Deficit Disorder; his daughter developing anorexia; his mother staying with the family during the final stages of terminal cancer; and his best friend dying of cancer.

47. The psychologist noted that whilst admitting to the offending and recognising the wrongness of his actions, the applicant “did not impress as fully comprehending the reasons behind his offending or the factors which may have contributed to the offending”.

48. Separately, the psychologist noted that whilst his contrition appeared sincere, he “also presented with significant levels of “victim-stancing”, explained as focussing on his own losses, which was considered to be a minimisation of the harm he caused the victim. The psychologist also wrote that “[d]eveloping empathy for the victim would be considered a primary criminogenic need” for the applicant.

49. It was said that the applicant was “highly motivated to engage in treatment”. It was also said that the results of psychological testing suggested that the applicant “most closely fits known criminal clinical groups experiencing difficulties associated with Post-traumatic Stress Disorder and Major Depressive Disorder”.

50. As for risk of reoffending, there was judged to be “a relatively low re-offence risk for reoffending sexually in the future”.

51. The ultimate opinion proffered focused upon the history of family violence, although not including child sexual assault; maladaptive responses to emotional discomfort; the offences having occurred “during a period of emotional disturbance” following the loss of work; low self-esteem; and the role of drugs and alcohol in possibly lowering impulse control. As well as referring to PTSD and moderate major depressive disorder, the ultimate opinion also spoke of “Cluster B Personality disorders”, without further elaboration. The relatively low risk of reoffending was emphasised. The report concluded with a recommendation that the applicant “re-engage with a specialist treatment provider who can address relevant factors to strengthen relapse prevention”.

46. The wife of the applicant provided a letter in which she described her breast cancer diagnosis and subsequent chemotherapy. She described in detail the negative emotions she had experienced upon finding out her husband’s offending. She spoke of the confession turning her “whole life upside down”.

47. She also spoke of her perception of how the applicant had changed: it was said that the applicant was remorseful, and that she chose to stay with her husband because she “could see the sincerity in his apology”.

48. She separately noted that the family had lost their main income earner, and as a result the family suffered daily financial hardship.

49. There was further medical evidence with regard to his wife showing a clinical history of depression, a left and right mastectomy due to breast cancer, and a list of her current medications, which included anti-anxiety medications and cancer medications.

Aspects of the proceedings on sentence

56. Two aspects of the way the case was conducted orally at first instance are relevant to the grounds of appeal.

57. The first is that, in his plea in mitigation, after having summarised references in the psychological report to the use of alcohol and prohibited drugs and the presence of depression and anxiety at the time of the offences, defence counsel said “I don’t suggest, as has been somewhat foreshadowed in the Crown’s submissions, that there was a causal link between those mental conditions and the – [offending]”. Counsel thereafter agreed with the proposition of the sentencing judge that any such link would be difficult to make out.

58. Secondly, during address in reply in the proceedings on sentence, the prosecutor placed material before the sentencing judge that was not contained in the agreed facts. That included portions from the transcript of the conversation surreptitiously recorded by the victim, and from the transcript of the applicant’s recorded interview. His had said, during the former, that the complainant had spoken of the provision of money to her by the applicant as “the easier of the two options”. The prosecutor also submitted that the applicant had said, in his formal interview, that the complainant had said to both himself and his wife, “I’m giving you seven days or I go to the police”.

59. The ultimate submission of the prosecutor was that, although the applicant did indeed go to the police on 10 December 2014, “it wasn’t necessarily a free and voluntary going to the police”.

60. In further oral submissions, the defence advocate neither objected to, nor called into question the correctness of, the material that had been placed before the sentencing judge by the prosecutor from the Bar table.

Findings by sentencing judge

61. In the sentencing judgment, his Honour spoke of the six counts of sexual intercourse with a child aged between 10 and 14 under authority having occurred when the complainant was 12 or 13 years of age. His Honour recounted that there were four charges on the Form 1, all of them aggravated indecent assaults (I interpolate that that was a slip that favoured the applicant).

62. It was noted that the pleas of guilty had been entered on the first day of a trial, and a utilitarian discount of 15% was afforded.

63. The agreed facts were summarised in an unexceptionable way.

64. As for the way in which the offences came to light, the following findings of fact were made:

“On 7 December 2014, [the complainant] met with the offender at a club in Old Bar. She confronted the offender about the abuse she endured as a child and recorded the conversation without the offender’s knowledge or consent.

On 10 December 2014, the offender attended the Port Macquarie Police Station and made admissions based on limited details.”

65. Reference was made to the absence of criminal antecedents. The psychological report was summarised, including the opinion about the applicant focusing on the consequences of his offending for himself, rather than the harm caused by his offending to the complainant.

66. His Honour spoke of the “gross breach of trust” that had occurred here, along with the “exploitation of the tender years of the victim”. His Honour also found, based on the contents of the victim impact statement, that the proposition that the victim “suffered profound psychological damage” was “beyond argument”. His Honour also spoke of the vulnerability of the victim, and the position of authority of the applicant.

67. The sentencing judge recorded that the complainant was 12 or 13 years of age at the time of the offences.

68. The objective gravity of each substantive count was found to be “within the mid-range”. As for the Form 1 charges, three were found to be below the mid-range of objective seriousness, but what had been count 10 was said to be “within the mid-range”.

69. Later, the sentencing judge rejected the proposition “that the offender’s moral culpability was diminished by way of his mental illness”, going on to state that the evidence of Ms Lucas, the forensic psychologist, “did not establish a causal link between any depressive illness and the offending”: at [75].

70. The sentencing judge referred to the circumstances in which the applicant came forward. It was said at [76]:

“The offender made a voluntary disclosure of his offending to the police, but only after being confronted by the victim. The circumstances in which he reported the matters to the police, three days after that confrontation, are consistent with a threat by the victim to report the matter to the police within seven days, as submitted by the Crown. In those circumstances, the disclosure was not entirely voluntary. Rather, it was made in the shadow of impending detection rather than an unprovoked and guileless surrender. However, it did amount to material assistance to the police in prosecuting the matters, and allowed his sentencing to be expedited, notwithstanding the effluxion of time. Having regard to the matters set out in s 23(2) of the C(SP)A, given the extent of the assistance and the saving of community resources, I assess that the offender is entitled to a further utilitarian discount of 10% on sentence. He will therefore be entitled to a total 25% utilitarian discount on sentence in respect of his plea of guilty to each of the offences, and his disclosure and assistance to the police. I am mindful that pursuant to s 23(3), any lesser penalty imposed for assistance to law enforcement authorities must not be reasonably disproportionate to the nature and circumstances of the offences”.

71. It was found that the disclosure to the police and subsequent pleas of guilty indicated some remorse and contrition, although, in accordance with the psychological report tendered in the case for the applicant, “the offender has been more focussed on the consequences to himself of his offending than that of the victim”.

72. In rejecting a submission that special circumstances had been established that should lead to a variation of the statutory ratio between non-parole period and head sentence, his Honour found at [78]:

“The evidence does not establish exceptional hardship to his family, and the fact that it is his first time in custody does not warrant a finding of special circumstances. Further, I am not persuaded that the offender will serve any sentence in more onerous conditions than the rest of the prison population. The evidence established that he is a protected inmate and will continue in that category”.

73. In the same context, it was said that the parole period to be imposed was sufficient for a supervised return to the community, and that, in all the circumstances, including the continuing support of his wife, the applicant had “good prospects of rehabilitation”.

Sentence imposed and sentences indicated

74. As I have said, an aggregate head sentence of imprisonment for eight years with an aggregate non-parole period of six years was imposed. The indicative individual sentences provided were as follows:

Count 2 – Sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years of age, in circumstances of aggravation, namely being under the authority of the offender pursuant to s 66C(2) – 1 year and 6 months imprisonment.

Count 3 – Sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years of age, in circumstances of aggravation, namely being under the authority of the offender pursuant to s 66C(2) – 2 years and 6 months imprisonment.

Count 4 (and taking into account Form 1) – Sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years of age, in circumstances of aggravation, namely being under the authority of the offender pursuant to s 66C(2) – 3 years imprisonment.

Count 5 – Sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years of age, in circumstances of aggravation, namely being under the authority of the offender pursuant to s 66C(2) – 3 years imprisonment.

Count 6 – Sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years of age, in circumstances of aggravation, namely being under the authority of the offender pursuant to s 66C(2) – 2 years and 3 months imprisonment.

Count 9 – Sexual intercourse with a child above the age of 10 years and under the age of 14 years, namely 12 or 13 years of age, in circumstances of aggravation, namely being under the authority of the offender pursuant to s 66C(2) – 2 years and 3 months imprisonment.

Approach to asserted developments after sentence

75. The grounds of appeal were largely based on the experiences of the applicant in custody, his mental state, and adverse events in the life of his wife, son and daughter. Those topics spanned a period that began before the date of the proceedings on sentence, but went well beyond it. That presents a question with regard to the classification of the evidence as truly fresh or merely new, and a related question about the degree to which events subsequent to the imposition of sentence can be taken into account by this Court: see generally the judgment of Simpson J (as her Honour then was) in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 (Khoury).

76. As is well known, in the vast majority of appeals against sentence, this Court is called upon to identify error at first instance, whether patent or latent. But an appeal against sentence that is founded upon unforeseen and unforeseeable events that have occurred after the imposition of sentence cannot be thought of in the same way, for the simple reason that sentencing judges can hardly be said to have fallen into error by failing to predict an unexpected future.

77. Speaking generally, parties “are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence”: Khoury at [104] (citing R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377).

78. On the one hand, the evidence presented by the applicant that is classified as “fresh” evidence may be relied upon in these proceedings; that is, “... evidence of which the accused was unaware at the time of his trial” and “evidence which he could not have discovered with reasonable diligence”: Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 at 675. That may extend to significant unexpected events that have occurred after the imposition of sentence.

79. On the other hand, evidence presented by the applicant that is classified as “new” evidence – that is, evidence that was reasonably available at the time the applicant was being sentenced, but was simply not relied upon for whatever reason – could only be relied upon by this Court in very limited circumstances.

80. Assuming, then, the applicant does have “fresh” evidence”, the next question for determination is whether, upon evaluation, that fresh evidence would have had the capacity to have affected the outcome of the proceedings at first instance: Khoury at [108].

81. Separately, while this Court is tasked with correcting error – if there be one – in a decision in criminal proceedings below, and “this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error” (Khoury at [110]), it was also recognised in Khoury at [113] that:

“Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances”.

82. The fundamental propositions that I derive from Khoury and apply in this case with regard to events said to have occurred after imposition of sentence are that the admission of the evidence upon which the applicant relies is a matter of discretion; caution should be exercised in that regard; the interests of justice are to be kept in mind; sympathy should not swamp adherence to principle; and, if the evidence is admitted, the ultimate question remains whether a lesser sentence is warranted in law: at [101]-[121].

Ground 1: voluntary disclosure

Submissions of applicant

83. In written submissions, the applicant contended that the Crown “made errors in its paperwork” when it submitted that there were statements made by the complainant about going to the police before the applicant did so.

84. During the 7 December 2014 conversation on the Mid-North Coast (which, unbeknownst to the applicant at the time, was recorded by the complainant), the complainant asked for a sum of $30,000 in exchange for not informing her mother (the applicant’s wife) about his offending.

85. Contrary to the Crown’s submission that the disclosure to police was motivated by that request by the complainant, and thus not a sign of an autonomous desire to confess his crimes, the applicant contended that he instigated his own voluntary “disclosure” to the complainant in September 2014 during a walk with her. During that walk, the applicant asserted, he had apologised to the complainant and asked for her forgiveness. The complainant responded that she would “think about it”.

86. The applicant subsequently confessed to his wife. Not long after that confession, the applicant made admissions to the police at Port Macquarie.

87. Orally, the applicant seemed to suggest that he initiated the sequence of events described above. It was his position that it was because of his apology that the complainant then spoke further to him and recorded what he had to say, and that that purported causal link means that he is entitled to a discount for his voluntary disclosure.

Determination of ground 1

88. Five factors stand in the way of the success of this ground.

89. First, it is founded on evidence that was certainly reasonably available as at the date of the proceedings on sentence on 5 August 2016, bearing in mind that the assertion of the applicant was that the walk on the beach during which he says he had apologised to the complainant had occurred in September 2014. And yet that evidence was not placed before the sentencing judge to show that it was that alleged conversation, not the recorded one, that led to the admissions. In my opinion, it is not fresh evidence, and is not admissible now, many years later.

90. Secondly, it is to be recalled that it was in December 2014 that the complainant recorded the applicant without his knowledge, and that only three days later he made the initial admissions to a police officer. It was on 12 January 2015 that he made full admissions. That period of 72 hours between the recorded conversation and the first admissions to police tends to support, to some degree, a causative link between the former and the latter.

91. Thirdly, as the extracts from the proceedings on sentence above show, the quotations from the transcript of the recorded conversation, and the transcript of the recorded interview, placed before the sentencing judge by the prosecutor and uncontradicted by defence counsel, are inconsistent with this new assertion.

92. Fourthly, I have already quoted from the psychological report that recorded the applicant as having said that “his disclosure had been precipitated by meeting with the victim who had tried to “blackmail” him”. In other words, the evidence relied upon by the applicant well over four years ago, and based upon his own words to an expert witness qualified by his own legal team, was that it was the perceived threat of harm to himself that caused the applicant to go to the police, not a desire at any stage to disclose voluntarily what he had done, nor any preceding apology.

93. Fifthly, as I have shown, the sentencing judge provided a discount of 10% based upon the disclosures to the authorities by the applicant, with the result that each indicative sentence was discounted by a total of 25%. In other words, the complaint that founds the appeal is already reflected in the impugned outcome, and its quantum was well open.

94. For all those reasons, I would refuse leave with regard to this ground.

Ground two: exceptional hardship to family

Submissions of applicant

95. The applicant spoke of a number of events that had taken place before and after his incarceration: the applicant’s wife having to sell real property shortly after him being sentenced due to “ongoing reports and victimization”; she having to pay back a significant mortgage shortly thereafter, which had left her impecunious and homeless; her diagnosis with and ongoing treatment for breast cancer; an unsuccessful operation on her twisted bowel (and a subsequent operation to alleviate the problems caused by that first operation); her mental health issues, which the applicant appeared to have suggested resulted in hospitalisation; and exacerbation of her mental difficulties due to the public health emergency in 2020.

96. Separately, the applicant made submissions about the effect of his incarceration on his son, who had been diagnosed with meningitis as a baby, leaving him with developmental disorders including ADHD.

97. The applicant additionally relied on the damage to his (biological) daughter’s career. It was said that, once the nature and gravity of the applicant’s offending had become known to the community, his daughter was required to return to Australia and assist the family, in lieu of pursuing her career as a professional dancer.

98. Orally, the applicant reiterated that, since his incarceration, his family had to sell the house on the Mid-North Coast, and pay back a significant mortgage which had left his wife impecunious and unable to take care of herself. He submitted that his wife has had to relocate several times whilst having to take care of their two children. He also submitted that his wife had suffered a stroke in the meantime, had a bowel operation for a twisted bowel which “didn’t go right”, and mentioned the second bowel operation that was intended to remedy the first, as well as the need to move to Sydney. The applicant further submitted that his son and daughter have had to take care of his wife, which had put pressure on the two of them.

Determination of ground 2

99. In the sentencing judgment, his Honour recorded that defence counsel had acknowledged that the hardship suffered by the family of the applicant was not “to an exceptional level”. In accordance with that submission, that was the finding that the sentencing judge made.

99. I therefore approach this ground on the basis that it must be founded on events that occurred after the imposition of sentence. And it would be incumbent upon the applicant to show that, since September 2016, events have occurred that were not taken into account predictively by the sentencing judge, and that, if known, could and should have led to a different outcome.

100. I also approach the ground on the assumption that the subsequent events spoken of by the applicant have indeed occurred.

101. Speaking globally, one can readily accept that the incarceration of the applicant has been distressing and damaging for his wife and children. And one can also readily accept that particular aspects of that distress and damage may have developed more or less adversely than expected at the time of imposition of sentence.

102. But some of what is relied upon was an entirely foreseeable consequence of the revelation of the offending, the criminal proceedings, and his inevitable incarceration after conviction: the opprobrium that the child sexual assaults committed by the applicant attracted in a small town; the loss of any income earned by the applicant, leading to significant financial hardship; the inability of the imprisoned applicant to care for his unwell wife; and her own distress at his long absence.

103. Other factors are not caused by his incarceration (though I accept they may have been exacerbated by it): for example, the psychological effects of the public health emergency, and the medical conditions of his wife.

104. Yet other factors had already developed before sentence was imposed, and the sentencing judge was well aware of them, as demonstrated by the sentencing judgment: the cancer on the part of the applicant’s wife; the diagnosis of their son with ADD; the anorexia of their daughter; the ostracism of the family; the financial hardships that had already developed; and the isolation that would occur if the applicant were moved to a prison far from the family home.

105. In my opinion, and without depreciating them, the subsequent developments should not lead to intervention and consideration of resentencing. Based on the sentencing judgment, I consider that in September 2016 the sentencing judge was well aware that the incarceration of the applicant for a lengthy period was going to be very difficult for his family in a number of ways. I also consider that neither then nor now could their difficulties arising from his imprisonment be characterised as exceptional.

106. For those reasons, although I would grant leave to argue this ground, I would not uphold it.

Ground 4: diminished moral capability – mental health illness

Submissions of applicant

108. In his written submissions in support of this ground, the applicant made reference to the following extract from the sentencing judgment (at [75]):

“Nor do I accept here, that the offender’s moral culpability was diminished by way of his mental illness. The evidence of Ms Lucas did not establish a causal link between any depressive illness and the offending. Rather, the offender’s depressive state caused by the loss of his then employment together with his abuse of alcohol and illicit drugs, merely provided an explanation of the background to the offending. Nor does the fact of the mental illness of the offender diminish the importance of the general deterrence in sentencing here. A clear message has to be sent to the community condemning the criminal conduct involved in the offences here”.

109. The applicant then referred to the psychological report prepared by Ms Lucas. He spoke of the alleged circumstances of his consultation with Ms Lucas: it was 45 minutes in duration, an insufficient length of time in his submission to enable Ms Lucas to formulate a view that would have established a causal link between the offending and the applicant’s depressive illness.

110. Separately, the applicant made reference to traumatic life events that he had suffered, among them his son’s illness; the loss of his mother to cancer; the loss of his mother’s inheritance; an abusive father; and ongoing difficulties with family relationships.

111. In short, the applicant asserted that the sentencing judge placed too much weight on the principle of general deterrence and did not have enough regard to his mental health issues.

112. Orally, the applicant submitted that the cumulative effect of “[m]y son, my wife, mother dying, my father hassling, my losing my job yes, not paying the mortgage, my lack of work” demonstrated that he was suffering from a mental illness at the time of the offending, it contributed to his offending, and it thereby reduced his moral culpability.

Determination of ground 4

113. Again, in my opinion a number of factors stand in the way of the success of this ground.

114. First, as I have shown from the transcript of the proceedings on sentence, it was explicitly conceded on behalf of the applicant many years ago that a causal relationship between his psychological state and the commission of the offences could not be established on balance as a mitigating factor.

115. Secondly, as I have also shown, the sentencing judge by no means overlooked the evidence about the psychological state of the applicant. It was referred to, not only in the discussion of the submissions of both parties, but also in the determination of his Honour.

116. Thirdly, in that determination, his Honour regarded the evidence about the psychological state of the applicant as providing “an explanation of the background to the offending”. His Honour then went on to say that the “mental illness of the offender” did not detract from the importance of general deterrence in this case. That approach was well open to the sentencing judge, and is unable to be impugned on any basis.

117. Fourthly, to the extent that the applicant sought to place before this Court further evidence about his purported mental state between December 2003 and March 2005, any such evidence was certainly reasonably available as at August 2016, and I would reject it.

118. Fifthly, far from being scanty, the psychological report was, as I have shown, detailed and reflective.

119. Sixthly, it is one thing to accept that the applicant suffered from substance abuse problems and psychological issues arising from various stressors at the time of the offending. But it is another thing entirely to accept that those matters provided any mitigation with regard to his repeated sexual offences against his stepdaughter.

120. In all the circumstances, in my opinion leave should be refused with regard to this ground.

Ground 5: onerous prison conditions

Submissions of applicant

121. In written submissions, the applicant referred to [78] of the sentencing judgment where his Honour had stated:

“… Further, I am not persuaded that the offender will serve any sentence in more onerous conditions than the rest of the prison population. The evidence established that he is a protected inmate and will continue in that category. Special circumstances have not been made out here pursuant to s 44(2) of the C(SP)A”.

122. The applicant referred to the conditions of his custody at Port Macquarie police station when first taken into custody many weeks before the proceedings on sentence: the applicant had been held at that police station for 11 days; was not allowed to call his family or “see the sky”; and was not permitted a change of clothes.

123. Thereafter the applicant was transferred to a prison, where he was held in three different cells over the course of one evening. It was then said that the nature of the applicant’s offences had been revealed, and that he was then placed in the “worst cell in the complex”.

124. The conditions of that cell included “freezing” air conditioning; only one white cotton blanket; no beds (forcing the applicant to sleep on the floor); faeces over the toilet and floor; and a sink full of garbage. The applicant emphasised that this all occurred in his “first night in the system”.

125. On the applicant’s second day in custody, it was said that someone had drugged his food or drink, to cause him to feel sleepy; shortly afterwards, he fainted in the shower. He was subsequently picked up by a cellmate and dragged away, then dropped onto the concrete floor, causing him to lose consciousness a second time.

126. The applicant also spoke more generally of being fearful of assaults due to attacks that had occurred on him in prison. Those attacks were said to have occurred by virtue of the applicant’s offences.

127. The applicant additionally raised the various prison transfers, and being housed in two different blocks within a gaol. It was asserted that he had been transferred to ten different correctional centres in ten months.

128. Finally, the applicant referred to his extensive period in segregation – reportedly, 23 hours a day for 46 days, with 1 hour per day to “sort out [his] security”.

129. The applicant also said that at one stage he was housed in a wing in which another inmate was murdered.

130. Orally, in addition to the events and circumstances summarised above, the applicant said that inmates had found out about his crimes and that consequently, people had followed his family members home to intimidate them. Separately, the reason he was no longer allowed to stay at a particular gaol was because inmates there had threatened to kill him.

Determination of ground 5

131. In my opinion, this ground also confronts a number of obstacles.

132. First, the evidence about the conditions of custody of the applicant, after having been bail refused, and including at the police station, was available at the time of the proceedings on sentence. Indeed, by that stage, he had been in custody for many weeks. In light of the reference in the psychological report to the applicant focusing more on his own misfortunes than upon the profound gravity of his crimes against a child in his care, one can readily understand why his complaints about the consequences of his offending that he had already suffered were not placed before the sentencing judge by defence counsel. I put that evidence to one side, on the basis that it is not “fresh”.

133. Secondly, based upon an affidavit read by the Crown in this Court, there was indeed a time after sentence during which the applicant was transferred between many gaols. To be weighed against that is the fact that the applicant has been settled in the one correctional centre for three years, according to the same affidavit.

134. Thirdly, it is well known that, regrettably, persons convicted of sexual assaults against children are at risk of threatened or actual unlawful violence in custody. And I also accept that being incarcerated is very often a traumatic and frightening experience, especially perhaps for a person who has never been in custody before. On the other hand, there is nothing to suggest that the sentencing judge was not aware of those facts, and did not generally factor them into the ultimate result, whilst at the same time not being satisfied that the specific status of being on protection would be more onerous than not, in light of the absence of evidence about the topic: for longstanding authority for the correctness of that approach see, for example, R v Jarrold [2010] NSWCCA 69 at [26]–[27].

135. Fourthly and fundamentally, I cannot accept that anything that has happened to the applicant since sentence was imposed has been so unexpected or so extreme as to call into question the correctness of the length of this aggregate sentence, in light of the gravity, number, and temporal extent of the offences, and the damage that they have caused.

136. In my opinion, leave should be granted with regard to this ground, but it should be dismissed.

Ground 6: incorrect evidence by Crown

137. In support of this final ground, the applicant referred to [86] of the sentencing judgment, in which his Honour said:

“You are convicted of each of the offences in Counts 2, 3, 4, 5, 6 and 9 pursuant to s 66C(2) of the Crimes Act 1900, namely that you had sexual intercourse with RK, a child then above the age of 10 years and under the age of 14 years, namely, 12 or 13 years of age, in circumstances of aggravation, namely, RK being under your authority”.

138. The applicant asserted that the complainant was in fact a little older than stated by the sentencing judge when the offences occurred. He contended that “[t]his would place the offences on a less serious range of offending/sentencing”. The applicant also added that he asked “for a recalculation of discount to take in the correct range from mid to low”, presumably because (as was clarified in the applicant’s oral submissions at hearing) the complainant was aged 13 and not 12 at the time of his offending.

139. Orally, the applicant contended that the date particularised in the first count on the indictment was incorrect. That error was said to be material, as it affected the calculation of the age of the complainant at the time of the offending, which could be a relevant factor in sentencing. The applicant suggested that the date contained in the indictment – 1 April 2003 – is “over a year out”, meaning that the complainant was at least 13 years of age at the relevant time and not 12. As a result, it was submitted, his offending fell into the lower range of objective seriousness.

Determination of ground 6

140. This ground is devoid of merit, for the following reasons.

141. First, it was an agreed fact that the complainant was born in late May 1991. She therefore turned 12 in late May 2003 and 13 in late May 2004.

142. In December 2003 (the first date in the original indictment), she was therefore 12 years and approximately 7 months of age. In March 2005 (the last date in the indictment), she was therefore 13 years and approximately 9 months of age.

143. It follows that there is no error in the indictment – to which the applicant pleaded guilty whilst represented – in the particularisation of the age of the complainant as being 12 or 13. Nor is there any error in the identical references to her age in the sentencing judgment.

144. I would refuse leave to argue this ground.

Orders

145. Because the matter was fully argued, I would grant leave to appeal out of time.

146. Although I would refuse leave to appeal with regard to some grounds, and grant leave to appeal but dismiss the appeal with regard to others, I do not believe that that level of differentiation is necessary in the orders.

147. I propose the following orders:

1. Leave to appeal against sentence out of time granted.

2. Appeal against sentence dismissed.

**********

Decision last updated: 21 April 2021