Langbein v R

[2008] NSWCCA 38

Reported Decision:	181 A Crim R 378
Appeal Outcome:	Special leave refused by the High Court - 11 December 2009

New South Wales

Court of Criminal Appeal

CITATION:	Langbein v R [2008] NSWCCA 38 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13 November 2007
JUDGMENT DATE:	28 February 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hall J at 118; Price J at 119
DECISION:	1. Appeal against conviction is dismissed. 2. Grant leave to appeal the sentence and dismiss the appeal.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - four occasions of sexual conduct in relation to a child - judge's directions to jury - whether summing up lacked balance and objectivity - whether trial judge unfairly bolstered child complainant's evidence and Crown case - CRIMINAL LAW - evidence - whether trial judge erred in admitting evidence of complaint - "fresh in the memory" requirement - re-establishing creditability - whether trial judge erred in his direction on the Markuleski principle - CRIMINAL LAW - application for leave to appeal against sentence - whether the applicant being held in custody with more onerous conditions constitutes special circumstances - rehabilitation of sexual offenders - whether sentence manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Serious Sex Offenders) Act 2006
CATEGORY:	Principal judgment
CASES CITED:	Attorney-General for the State of NSW v Tillman [2007] NSWSC 605) Attorney-General for the State of NSW v Winters [2007] NSWSC 1071 B v The Queen (1992) 175 CLR 599 Gardiner v R [2006] 162 A Crim R 233 Graham v The Queen (1998) 195 CLR 606 Hajje v The Queen [2006] NSWCCA 23 Papakosmas v The Queen (1999) 196 CLR 297 Picken v Regina [2007] NSWCCA 319 Power v The Queen (1974) 131 CLR 623 R v Banic [2004] NSWCCA 322 R v Christoph (2003) 140 A Crim R 45 R v Courtney-Smith No 2 (1990) 48 A Crim R 49 R v DBG [2002] NSWCCA 328, 133 A Crim R 227 R v Gent (2005) 162 A Crim R 29 R v Kaliti (2001) NSWCCA 268 R v Kama (2001) 110 A Crim R 47 R v Machin (1996) 68 SASR 526 R v MDB [2005] NSWCCA 354 R v Markuleski (2001) 52 NSWLR 82 R v Meher [2004] NSWCCA 355 R v Merrin (2001) NSWCCA 255 R v Mostyn (2004) 145 A Crim R 304 R v Potier (2004) NSWCCA 136 R v Rivkin [2004] NSWCCA 7 R v Simpson (2001) 53 NSWLR 704 R v Vinh Le [2000] NSWCCA 49 R v Way (2004) 60 NSWLR 168 R v Zorad (1990) 19 NSWLR 91 Regina v Sukkar [2005] NSWCCA 54 Robinson v R [2006] NSWCCA 192 Skipworth v The Queen [2006] NSWCCA 37
PARTIES:	Mark Langbeing (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/1861
COUNSEL:	A J Bellanto QC (Appellant) P Miller (Crown)
SOLICITORS:	Heenan & Company (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0177
LOWER COURT JUDICIAL OFFICER:	Shadbolt DCJ
LOWER COURT DATE OF DECISION:	13 December 2006

2007/1861

McCLELLAN CJ at CL
HALL J
PRICE J

THURSDAY 28 FEBRUARY 2008

LANGBEIN, Mark v R

Judgment

1 McCLELLAN CJ at CL: The appellant pleaded not guilty to a charge of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900. He was tried in the District Court and convicted. He was sentenced to a non-parole period of 7½ years imprisonment with a further term of 2½ years. The maximum penalty for the offence is imprisonment for 25 years.

2 The indictment read as follows:

“Between 1 January 2001 and 8 June 2004 at Sydney in the State of New South Wales on three or more separate occasions occurring on separate days did engage in conduct in relation to [the complainant], a child under the age of 18 years, that constituted a sexual offence, namely:
Between 1 January 2001 and 31 December 2002 at Dee Why, did have sexual intercourse with [the complainant], she being a child under the age of 10 years;
Between 1 January 2001 and 31 December 2002 at Dee Why, did assault [the complainant], and at the time of the assault, did commit an act of indecency upon [the complainant], she being a child under the age of 10 years.
Between 29 April 2003 and 8 June 2004 at Hornsby, did attempt to have sexual intercourse with [the complainant], without her consent, knowing she was not consenting, in circumstances of aggravation, namely, she being a child under the age of 16 years.
Between 1 January 2004 and 8 June 2004 at Hornsby, did have sexual intercourse with [the complainant], she being a child then above the age of 10 years and under the age of 14 years, in circumstances of aggravation, namely, she being under the authority of Mark Langbein.”

3 The appellant appeals his conviction and seeks leave to appeal against the sentence.

The facts

4 The complainant was born on 22 February 1993. She was the child of AS and SL who had divorced in 1997. The father remarried BS. The mother remarried the appellant.

5 After the complainant’s parents separated her mother had custody of her and her younger sister. The father had access to them pursuant to orders made in the Family Court.

6 After his remarriage the complainant’s father went to live with his new wife in the Hunter Valley. He was initially employed in the Navy but after a period of unemployment found employment with the Department of Corrective Services.

7 By agreement between the parents the children came to visit their father for a period between January and April 2003.

8 The complainant’s mother had problems with drugs. There was a dispute about whether she was properly caring for the children and on 8 June 2004 the father was contacted by police who informed him that his former wife had harmed herself and was in hospital. AS travelled to the school that the girls attended at Hornsby and took custody of them. He subsequently commenced proceedings in the Family Court and was granted interim custody of the children in July 2004.

9 After coming into the custody of their father the complainant and her sister were enrolled at a local public school. On 1 September 2004 the complainant participated in a child protection class dealing with sexual abuse which was conducted by her teacher. During the course of the lesson the teacher told the children that people who commit sexual abuse are not always strangers but could be a family member.

10 During the lesson the complainant raised her hand and asked the teacher who one would tell if they had been sexually abused. After some discussion the teacher said that you would definitely tell the teacher. Towards the end of the class the complainant approached the teacher and said she wished to tell her something.

11 The complainant spoke with the teacher and told her that she had been sexually abused. The teacher asked whether it had happened where she was now living. The complainant replied that it had occurred at her mother’s place. The teacher asked her if she could tell her father and the complainant said she did not think she could. However, the complainant said that she thought she could tell her step-mother.

12 The complainant’s step-mother, BS, gave evidence that when she picked the children up from school that afternoon the complainant approached her and told her that she had something very private and personal to tell her. After they had arrived home the complainant said to BS:

“I have got something to tell you. I have been sexually abused.”

13 The complainant told BS that the appellant was responsible for the abuse and the complainant gave some limited details of the events which she alleged had occurred.

14 The complainant was subsequently interviewed on 3 separate occasions by the police. The interviews were video taped and edited versions of the tapes were played to the jury as her evidence in chief. Transcripts of the interviews were provided to the jury. During these interviews 4 occasions of alleged abuse were identified by reference to the first time, second time, the worst time and the last time.

15 The first occasion was alleged to have been when the complainant was living at Dee Why. This was in 1999 or 2000 when the complainant was aged either 6 or 7. She alleged that the appellant had picked her up from school and taken her home. She said that her sister was asleep and the appellant had told her to go into the bedroom and take off her pants and underpants. The appellant undressed and had an erection. She alleged that they both lay on the bed and the appellant put his finger into her vagina. During the episode the complainant had said that she had kept a pillow over her face because she did not like to look. Afterwards the appellant told her not to tell anyone.

16 In relation to the second occasion the complainant alleged that some 2 or 3 weeks after the first occasion the appellant had again picked her up from school. Her sister was at a friend’s house. She alleged that the appellant had again directed her to go to the bedroom and remove her clothes. He removed his clothes. They lay on the bed and she alleged that the appellant rubbed his finger on the outside of her vagina. After this stopped she said she felt the appellant’s mouth and tongue on her vagina.

17 The complainant said that the third occasion took place towards the end of 2003 or early 2004 when she was living in Hornsby. It was a weekend and her mother and sister had gone shopping so that she was alone with the appellant. He allegedly told her to go into the bedroom where he joined her and took off his clothes. He then took off her clothes and told her to lie on the bed. She said that she felt the appellant put his mouth on her vagina and subsequently attempt on a number of occasions to place his penis inside her vagina but he was unable to do so. She said that the appellant told her not to tell anyone or he would hurt her family. He said it was “their little secret.”

18 She alleged that the fourth occasion was about a month before she had gone to live with her father. This would have placed it in May 2004. She said that they had been to the Westfield shopping complex in Hornsby on a weekend where they had shopped and eaten lunch. Her mother had gone to work and her sister was at a friend’s house. They returned home together. She alleged that the appellant asked her to go to the bedroom where he told her to undress. He removed his own clothes and they lay on the bed together. She said that he put his mouth and tongue on her vagina and then placed two fingers inside it. She alleged that on this occasion the appellant again threatened to hurt her family if she told anyone.

19 Although other witnesses were called in the Crown case, including the complainant’s parents, her step mother and the school teacher there was no independent support for the complainant’s evidence.

20 The appellant gave evidence in which he strenuously denied any sexual misconduct.

21 The complainant admitted in cross-examination that she had become disturbed and frightened by her mother’s drug taking and that she was also frightened of the appellant. She admitted that she had wished to live with her father and did not want to return to live with her mother and the appellant. She agreed that she had not told anyone before telling the teacher about these events. The defence argued that in the context of an acrimonious custody dispute the complainant had fabricated the allegations in order that she could remain living with her father. It was suggested that she had done this either on her own or at the behest of her father.

Appeal against conviction

22 The Notice of Appeal contained six grounds. Ground 5 is not pressed. Each of the other grounds complains of some aspect of the trial judge’s directions to the jury.

Ground One – the summing up lacked balance, objectivity and was unfair thereby causing a miscarriage of justice

23 The essential obligations of a trial judge when summing up to a jury have been discussed on many occasions. Care is necessary because of the need to ensure that both the prosecution and defence case are fairly placed before the jury in a balanced and impartial manner. The summing up should be detached and dispassionate in its treatment of the defence case. The trial judge should be mindful of the power which his or her observations have in the context of the trial and their likely impact upon the jury. Care must be taken lest the jury be overawed by the judge and fail to gain a proper understanding of the defence case and matters relevant to it.

24 Relevant principles are discussed in R v Meher [2004] NSWCCA 355 per Wood CJ at CL at [86]; R v Rivkin [2004] NSWCCA 7 at [208]; R v Banic [2004] NSWCCA 322 at [21]-[22]; R v Machin (1996) 68 SASR 526; R v Courtney-Smith No 2 (1990) 48 A Crim R 49; B v The Queen (1992) 175 CLR 599; R v Zorad (1990) 19 NSWLR 91 at 106-107. The principles relating to the requirement for a fair and balanced summing-up were discussed in the following recent decisions of this Court: Picken v Regina [2007] NSWCCA 319 at [96]-[103]; Robinson v R [2006] NSWCCA 192 at [140]; Gardiner v R [2006] 162 A Crim R 233 at [103]-[104]; Regina v Sukkar [2005] NSWCCA 54 at [88]-[96].

25 The trial judge commenced summing up on Wednesday 18 October 2006. His Honour recited the charge and gave the usual explanation as to the role of the judge and the jury. His Honour then said:

“Your function however is to determine all matters of fact. The facts are for you and for you alone to determine and if you discern or even think that you discern that I have taken a view on the facts then you must disregard that view unless it accords with your own view independently formed.
…
It is for you to determine if a witness saw or heard or felt or did that which he or she said he or she saw or heard or felt or did. It is for you to determine if a witness is accurately reporting that which he or she saw or heard or felt or did and it is for you to determine if a witness is telling the truth in part or in whole.”

26 His Honour continued and explained to the jury that they could accept a witness in whole or in part, assess their evidence against other pieces of evidence and told the jury: “you should look to see if what a witness says accords with your own understanding of the ways of the world.” His Honour then said that the jury should look to the demeanour of the witness.

27 Following these general observations his Honour gave the jury directions in relation to the evidence of a child. His Honour said:

“With a child making such allegations as have been made in this case you should look to see first of all whether there are details such as a child might recollect being now recounted. You should look also to see whether there are, in her evidence, matters which are likely to be a contribution from an adult rather than from her, that is that they are words or expressions or ideas which she could not, having regard to her age, generate herself but which are in fact generated for her, that is that they are not within the scope of a child’s imagination. For instance you could look to such matters as the expression ‘this won’t hurt’ or ‘I’m teaching you about these things’ or ‘this is our little secret’ or ‘how far fingers had gone into her vagina or that she was merely big enough.’ If you hear in those an adult voice rather than a child’s voice you may draw more support in relation to her evidence.”

28 It was submitted that these comments by his Honour had the effect of unfairly bolstering her evidence. The submission emphasised the fact that when referring to expressions which might be used by an adult his Honour referred to expressions actually used by the complainant in her evidence. This was said to have the effect of bolstering her credibility. It was submitted that his Honour should have used examples which were not found in the evidence given at the trial.

29 The appellant’s counsel also submitted that the trial judge had commented upon the appellant’s evidence in a manner which diminished its significance. This problem was alleged to exist in the following passage:

“By the same token, looking to the accused’s evidence you will recall that he became very emphatic when being cross-examined by the Crown but undue weight should not, I submit to you, be given to this. This is a very serious matter and one where the outcome is very important to an accused person who perhaps can say little more than after that lapse of time all that I can say is that it did not occur.”

30 The appellant submitted that the individual directions reveal a lack of appropriate balance but, more significantly, when accumulated with other matters to which I shall refer the entire summing up lacks the objectivity and balance which the law requires. In relation to the directions to which I have already referred I do not accept that the complaint is justified. By referring to the evidence his Honour gave substance to his direction that the jury should pay careful regard to the expressions used by the complainant. It would have been difficult if not impossible to provide the jury with meaningful directions unless reference was made to the evidence. It is, of course, true that the direction did have the consequence that the jury would be able to identify aspects of the complainant’s evidence which reflected the language of an adult, but I see no difficulty in this. No complaint was made that the substance of the direction was not appropriate, the complaint being confined to the fact that his Honour used the evidence itself to explain the direction.

31 I do not accept that his Honour’s direction diminished the significance of the appellant’s evidence. It may be that because he gave his evidence in an emphatic fashion, a description justified by an examination of the transcript, the jury may have been inclined to think less of his credibility. However, his Honour’s explanation of the appellant’s demeanour would have been likely to diminish any adverse impression formed by the jury. Furthermore, as was plainly the case, his Honour ensured that the jury understood that, having regard to the way the Crown case was presented, if the appellant was to maintain his innocence his only course was to deny each of the allegations.

32 It was submitted that the jury would also have been inappropriately influenced by a remark which his Honour made when the complainant was giving evidence. The complainant became distressed and was crying. His Honour intervened to say:

“You’re fine. You’ve given the answers you’re supposed to give.”

33 I accept that his Honour’s statement was ambiguous. However, in the context I do not believe it would have had any impact on the outcome of the trial. The complainant was entitled to reassurance during the stressful experience of giving evidence and his Honour merely intended to convey to her that she was responding appropriately to the questions. I do not believe the jury would have formed the opinion that his Honour was passing judgment on the integrity of her evidence.

34 The further complaint made with respect to the trial judge’s summing up relates to his Honour’s remarks concerning the cross-examination of witnesses with respect to matters of credit. When giving these directions his Honour gave an illustration from the evidence given in the case. The complaint was that by referring to the evidence his Honour’s remarks tended to unfairly support the Crown case. His Honour said:

“An inference is a fact that can be drawn from two other established facts and if I can give you an example here. If you accept that [the school teacher] directly following the complaint by [the complainant] to her from when she had made arrangements with [the complainant] as to what she should do in the immediate future went straight around to the principal’s office and filled in a form directed to the Department of Community Services as she is required by law to do. If you accept that that is what happened and then if you also accept that [the complainant] spoke to police after this complaint was made it is a reasonable inference that [the teacher’s] report went to the Department of Community Services and then from the police and the police came and visited [the complainant] at her home or at the school, more probably at her home.”

35 To my mind the complaint has no foundation. Indeed, by drawing upon the evidence to illustrate the nature of an available inference his Honour was providing the jury with more assistance than is sometimes given by the typical illustrations used by trial judges. I can see no potential for this direction to have unfairly influenced the jury.

36 His Honour then turned to consider the matter of “cross-examination on credit.” His Honour said:

“These are matters which are not central to the case and the aim is to show a witness in such a light that you would think less of that witness’s evidence and place less credence in it.”

37 His Honour reminded the jury that the complainant’s mother and step-mother had been cross-examined as to how they had cared for the children. His Honour said:

“It has really got nothing to do with this case and it was just to show that as far as BS was concerned she did not have a very high regard for the mother’s care of the children … .”

38 The evidence to which his Honour referred was statements which various witnesses had made during the course of contested family law proceedings in relation to the custody of the children. His Honour’s remarks that the matters were not central to the case were correct. His Honour was concerned to ensure that the jury were not diverted from the task of determining whether the appellant had committed the alleged offence by the controversy which surrounded the family court proceedings. To my mind the directions which he gave were not unbalanced or unfair to the appellant.

39 The appellant complains that the trial judge unfairly emphasised the importance of the Crown case when he said:

“You must determine on that evidence whether or not you are satisfied beyond a reasonable doubt on the Crown case and you must not go beyond that and you must not speculate.”

40 His Honour went onto say:

“It is just upon that material that you must decide the issue in this case.”

41 This is also the subject of complaint.

42 It was submitted that his Honour’s reference “to the Crown case” could have conveyed to the jury that they should give more weight to the Crown case than the case presented by the appellant.

43 A few lines further on in the transcript his Honour directed the jury in these terms:

“What you are required to do today is determine the facts, to fit those facts to the law as I give it to you, and to decide whether or not you are satisfied on the Crown case beyond a reasonable doubt.”

44 It was submitted that the combination of these directions meant that the trial judge unfairly emphasised to the jury that they should consider the Crown case without referring to the defence case. It was submitted that the judge was in error when he said that the jury was required to determine the facts and fit those facts to the law when the jury’s task was to consider the facts in the light of the directions of law which the trial judge gave them.

45 I am not persuaded that the directions contain any relevant error. No doubt a formulation with greater clarity could have been provided. However, the effect of his Honour’s directions was to make plain to the jury that they were to examine the evidence, find the facts and consider them having regard to the law. They were to consider the Crown case and only if satisfied of that case beyond reasonable doubt could they convict. They were informed that in carrying out their task they must find the relevant facts and in light of the directions which they had been given as to the legal elements of the offence, determine whether they were satisfied that the Crown had proved its case to the relevant standard. In my opinion the complaint about these directions is not justified.

46 His Honour later turned to consider the evidence in relation to complaint. He said:

“Now I turn to the matter of complaint. It has been thought in generations past that if a woman or a female of any age was sexually assaulted that she would complain about it to someone in authority and if she did not so complain that some shadow would fall upon across her credit (sic) and her evidence would be less regarded because of the absence of prompt complaint. It is a very old historical concept and tied into something called the hue and cry which was the raising of a group of people to go and arrest a person who had committed the sexual assault and it goes back centuries. In this case, as you are aware complaint was not made in relation to the first matter until some 4 years after the event. It was not made on the second allegation until 4 years or thereabouts had elapsed and it is unknown how long it was when the third allegation (sic) before complaint was made and even with the last one it was something in the order of 3 months. Now you have to take into consideration that this is a child who is complaining. With a young child the child may not know the nature of what is being done to her or that she ought to complain about it.”

47 It was submitted that his Honour’s reference to the history of complaint “in the context of this case” again had the effect of bolstering the evidence of the complainant. In support of this submission the appellant emphasised the fact that his Honour said that the jury “have to take into consideration that this is a child complaining.” The appellant referred to the later directions which were said to exacerbate the problems with this earlier direction. His Honour later said:

“The abuse had gone on from about second class at the time she complained about it. Now you must take all of these matters into consideration before you say, well the complaint was so late that there must be some shadow which falls upon or across her credit and it becomes harder to believe her.”

48 It was submitted that his Honour unfairly ameliorated any concern which the jury may have felt about the lateness of the complaint by inviting the jury to “think of a particular date four years ago and tell me precisely what occurred on that date.”

49 I am not persuaded that the directions which his Honour gave about the evidence of complaint were erroneous. In my judgment his Honour was concerned to ensure that the jury understood the approach which they must take to the evaluation of the evidence of complaint. In so doing it was appropriate that his Honour remind the jury of the evidence in this case so that they could approach their task with a clear understanding of the principles which his Honour had enunciated and how they related to the evidence at the trial.

50 His Honour’s invitation to the jury to reflect upon whether they could identify what occurred on a date four years ago was given with the intention of assisting the appellant’s position. His Honour had reminded the jury of the disadvantage to the appellant because of the lateness of the complaint, in particular the fact that the appellant would have difficulty providing an account of his movements on any particular day. The invitation to the jury to consider whether they could recollect the events of four years ago was intended to reinforce in the jury’s mind that the lateness of complaint could operate as a significant disadvantage to the appellant.

51 On more than one occasion his Honour used the expression “were you mindful to convict.” On one occasion his Honour said “you should therefore be satisfied both as to her truthfulness and the accuracy of her recall were you mindful to convict.” On another occasion his Honour said when referring to the multiple allegations “of those you must be satisfied beyond reasonable doubt if you’re mindful to convict him of the one count in this indictment.”

52 Although in some contexts use of the expression “mindful to convict” may have created difficulties I am satisfied that there were no problems in the present case. All that the jury was told was that if they were considering whether to convict they would first have to be satisfied of the relevant matters.

53 Later in the summing up his Honour commenced a review of the four occasions identified in the indictment. It was submitted that when in this context his Honour said: “Now that is all that the Crown has to prove beyond reasonable doubt.” It was submitted that his Honour’s remarks would have bolstered the prosecution case. There are other examples of his Honour using this form of language.

54 I can see no difficulty in this direction. His Honour was merely being careful to ensure that the jury understood the elements of the offence having regard to the evidence tendered in the Crown case. His Honour, as to my mind was appropriate, was directing the jury that although there was other evidence it was not evidence that was relevant to proving a particular offence.

55 Complaint was made in relation to his Honour’s directions with respect to the third occasion – the attempt of sexual intercourse count. His Honour gave the jury an illustration of an “attempt” by reference to a hypothetical event totally removed from the case. His Honour then said:

“In this case the complainant said that this time she screamed when the accused placed his penis at her vagina because it hurt so much and that intervening reaction the Crown says caused it to be an attempt and not a completed criminal act.”

56 It was submitted that by referring to the complainant’s evidence his Honour unfairly bolstered the Crown case. I reject this submission. By referring to the evidence his Honour assisted the jury in obtaining an accurate understanding of the manner in which the Crown alleged that the actions of the appellant constituted a relevant element in the offence.

57 After giving the jury general directions his Honour turned to consider the evidence in both the Crown case and the case of the appellant. Complaint was made that his Honour spent excessive time summarising the evidence of the complainant when he said he had gone through the videos “as carefully as I can” and had selected matters relevant to each of the four occasions referred to in the indictment. His Honour undertook this task in order to assist the jury. It was submitted that this was illegitimate because it put his Honour’s imprimatur on the facts. To my mind this submission should be rejected. All that his Honour was doing was ensuring that the jury was reminded of the evidence relevant to each charge.

58 Complaint was also made that his Honour’s summary of the appellant’s evidence occupied only a short time. However, this was inevitable. The appellant’s case was itself brief consisting of a denial of every allegation made by the complainant.

59 After inviting the jury to retire to consider its verdict his Honour, in the usual manner, invited counsel to raise any matter of concern. Some matters were raised and his Honour gave further directions to the jury during which he said “bear in mind any of the other warnings I have given you … .” It was submitted that his Honour should have said “all of the warnings.” This submission is without substance. His Honour clearly invited the jury to consider all of the warnings which he had given.

60 Finally, complaint is made about a direction recorded in the following terms:

“You would have to inspect her evidence with great particularity before you accepted it or before, having accepted it, it would raise in your mind a satisfaction beyond a reasonable doubt.”

61 If this is an accurate record of the direction the language used was not elegant. However, having regard to the whole of the summing up I am not satisfied it would have caused any difficulty. The jury were being instructed to consider the complainant’s evidence with great care and, only if satisfied of the elements of the offence beyond reasonable doubt, return a guilty verdict.

62 Although his Honour invited counsel to raise any matter of concern in relation to the summing up there was no suggestion of the problems now raised under the first ground of appeal. Other matters were referred to and his Honour gave further directions. In these circumstances r 4 applies. It is apparent that counsel at the trial was not concerned about any lack of balance or objectivity in his Honour’s summing up. To my mind, having regard to both the particular directions identified by the appellant and, more importantly those directions in the context of the entire summing up the complaints which the appellant now makes are without justification. I would refuse leave in relation to ground 1 of the appeal.

Ground 2 – the trial judge erred in directing the jury that credit (was) not central to the Crown case thus giving rise to a miscarriage of justice.

63 I have already considered the direction which his Honour gave in relation to credit to which ground 2 refers. It is important to appreciate the entire direction. His Honour said:

“There has been quite a deal of cross examination on credit, if I can explain that to you. These are matters which are not central to the case and the aim is to show a witness in such a light that you would think less of the witness’s evidence and place less credence in it.”

64 This direction was correct. I reject ground 2 of the appeal.

Ground 3 – the trial judge erred in directing the jury that they were required to “determine the facts (and) to fit these facts to the law as I give it to you”

65 I have already considered this direction. It contains no error and I reject ground 3 of the appeal.

Ground 4 – his Honour erred in admitting evidence of complaint

66 The time span in relation to the fourth occasion of sexual abuse was identified as 1 January 2004 to 8 June 2004. Complaint was made to the teacher on 1 September 2004, some 12 weeks later. The third occasion was said to have taken place towards the end of 2003 or early 2004. The time span with respect to the first and second occasions was further removed being some 18 months prior to the complaint.

67 It was submitted that in the circumstances of the present case the admission of evidence of complaint was erroneous.

68 The trial judge considered the issue at a hearing on the voir dire. His Honour found that complaint was first made to the school teacher following a lesson within the scope of the Department of Education’s module on Child Protection. The complaint was in the following terms:

“Ms C I have been sexually abused.”

69 The teacher replied:

“I am sorry to hear that G. Is it from where you live now?

70 The complainant replied:

“It’s mum’s partner … .”

71 The teacher advised the complainant to inform her stepmother. She also filled in the prescribed form which gave notice of the complaint to the Department of Community Services.

72 His Honour found that the complainant informed her stepmother saying “I have been sex abused” and named the appellant. When asked “When was the last time this happened” the complainant replied “About a month before we came here.” His Honour determined this to be some time in the month of May 2004. She was then interviewed by the police who conducted three interviews.

73 His Honour reviewed the evidence of the events related by the complainant and found that her proposed evidence in chief indicated “a gradual progression from digital penetration and indecent assault to forceful fellatio and attempted penetration. These incidents occurred in intervals of two or three weeks.”

74 His Honour’s factual finding was that:

“One might fairly conclude that each successive incident would have reinforced the previous one and the last being a radical departure from the others, a matter to which the complainant would attach significance.”

75 After reviewing the authorities his Honour quoted from Shipworth v The Queen [2006] NSWCCA 37 where Mason P said:

“As to what the complainant told her mother, the appellant submits that the evidence should not have been admitted as evidence of the truth of the matter represented because it was not 'fresh in the memory of' the complainant when she spoke to her mother. It was not admissible pursuant to s66 of the Evidence Act and the principles stated in cases such as Graham v The Queen (1998) 195 CLR 606 and Papakosmos v The Queen (1999) 196 CLR 297 at 309-310. This point was not raised at trial and there is nothing to suggest miscarriage of justice stemmed from the admission of the evidence.

The time gap (66 days) was not great and there is every reason why the memory the of events was sufficiently fresh to make the evidence admissible on this wider basis. The jury were able to assess the reasons for and the impact of delay."

The trial judge then said:

"I regard the instruction of 1 September not as some trigger to recollection, but as demonstrating to the eleven year old complainant a course which she should and did take. I regard both of the women who heard her complaint as merely receiving it. Neither sought to elicit information from her or to encourage any embellishment.

As to 'fresh in the memory' I remain guided by the High Court but questions of fact and degree do here obtain. Attempted penile penetration, being as it was a departure from a more settled practise of criminal assaults, would have remained fresh in the memory of the child, satisfying both the test of recency and the test of being unchanged by the lapse of time."

76 His Honour determined that the evidence should be admitted.

77 Because evidence of complaint is hearsay s 59 of the Evidence Act would in the ordinary course deny its admission. However, s 66 provides that evidence of complaint will be admissible if the complainant is called or is to be called to give evidence and if “when the (complaint) representation was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”

78 The High Court considered s 66 in Graham v The Queen (1998) 195 CLR 606. In that case the complaint of sexual assault was made six years after the last acts alleged against the accused. The High Court determined that evidence of the complaint was not admissible. Gaudron, Gummow and Hayne JJ held that the word “fresh” in the context of s 66 means “recent” or “immediate.” Their Honours said that it “may also carry with it a connotation that describes the quality of the memory (as being “not deteriorated or changed by lapse of time”) but the core of the meaning intended, is to describe the temporal relationship between “the occurrence of the asserted fact” and the time of making the representation.” Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not as was the case here, in years” (p 608).

79 Callinan J, with whom Gleeson CJ agreed, said of s 66 of the Act that “whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaniety or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness” (p 614).

80 The High Court was concerned in Graham to provide guidance in the application of s 66 to encourage certainty in its application and avoid the necessity of voir dire hearings. In this context Callinan J emphasised that although there may be cases in which evidence of an event relatively remote in time will be admissible “such cases will necessarily be rare and requiring of some special circumstance or feature” (p 614) (see also Papakosmas v The Queen (1999) 196 CLR 297).

81 There have been cases where this Court has supported the admission of evidence of a complaint which was not contemporaneous with the alleged event complained of. In R v Vinh Le [2000] NSWCCA 49 evidence of events occurring over a six month period were held to be admissible because of the “constant refreshing effect of the regular repetition” of the behaviour (per Sully J [53]). Hidden J expressed the view that s 66 would allow the admission of complaint about a pattern of behaviour extending over months [126]. However, Hulme J doubted whether in light of the decision in Graham this view was open [84]. (see also the decision of this Court in Skipworth v The Queen [2006] NSWCCA 37.

82 In the present case evidence was given of two occasions when complaint was made. One was to the school teacher. This was a somewhat general complaint to the effect that the complainant had been sexually abused by the appellant at a place other than where she was then living. Evidence was also given by BS who said that the complainant complained to her on 1 September 2004 and referred to a number of incidents the last of which took place in May of that year.

83 In these circumstances, in my judgment, the evidence of complaint should not have been admitted pursuant to s 66. It is difficult to identify the reasons for the trial judge’s decision to admit the evidence. Notwithstanding the High Court’s concern that the temporal relationship between the alleged event and the complaint would likely be measured in hours or days his Honour concluded that the gap “was not great and there is every reason why the memory of events was sufficiently fresh to make the evidence admissible.” This conclusion is not explained and in my view cannot be reconciled with Callinan J’s expectation that before it will be admissible the complaint must be contemporaneous or nearly so with the alleged event.

84 Section 66 provides an exception to the hearsay rule in the circumstance where the alleged event provokes a contemporaneous complaint. Because of the proximity in time the account of the event given by the complainant to the person receiving the account given is accepted as likely to be accurate. Where days or months pass since the events, the account given by the complainant will most likely suffer from the frailties of human recollection.

85 In my judgment the lapse of time, in fact 85 days, in the present case was so significant that the asserted facts could not have been fresh in the memory of the complainant. Although I accept that the trial judge had the advantage of the testimony on the voir dire in relation to the issue, which is a question of fact, in my judgment his conclusion was not open. There were no extraordinary circumstances permitting departure from “contemporaneity or near contemporaneity” as the test by which to assess whether the relevant occurrence was fresh in the complainant’s memory.

86 After his Honour had given judgment on the admissibility of the complaint evidence the appellant’s counsel indicated that it would be submtted that the complainant’s allegations were the result of suggestions made to her. In response the prosecutor indicated that she would seek to use the complaint evidence as a matter going to credit (s 108(3) of the Act). His Honour did not rule in relation to the issue but indicated that the evidence of complaint would be before the jury in any event and the prosecutor would be able to make any submission which the evidence supported and, accordingly, it was not necessary to pursue that matter.

87 When the complainant was cross examined it was suggested to her that after she had spent 3 months with her father in 2003 she had not wanted to return to live with her mother. She had in fact returned to live with her mother until mid 2004. However, she agreed that she had told her father that she did not want to go back to live with her mother because of her mother’s abuse of drugs and because she was afraid of the appellant. It was suggested to her that her allegations of sexual abuse were untrue and that she had made them up because she wanted to stay with her father.

88 Similar suggestions were made when BS was cross-examined and were also made to the complainant’s father, AS.

89 In his address to the jury counsel for the appellant pursued this suggestion and submitted that the complainant “just wanted to do anything to get away from” her mother’s household. It was also suggested that the jury should have a real concern about the honesty of AS and BS, particularly in relation to the custody proceedings with respect to the children. The suggestion, although veiled, was that AS and BS had made suggestions to the complainant with a view to them being repeated by her, which would be of considerable impact in the custody proceedings. In these circumstances the respondent submitted that the complaints to the school teacher and the step-mother should be available to the jury to rebut, or at least place in context, the suggestion of fabrication or suggestion. If the jury thought that the complainant may have simply been taken to the police by her father and/or step-mother the suggestion of fabrication or suggestion may have been attractive to the jury. If, however, they were aware that the initial disclosure was made to an independent person, who had then advised her to tell her step-mother, they may take a different view.

90 It was submitted that accordingly if an application for leave to adduce the evidence pursuant to s 108 of the Act had been made it would inevitably have been granted.

91 In my opinion this submission should be accepted.

92 Section 108 of the Act, as enacted in New South Wales is in the following terms:

“(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.

(2) (Repealed)

Note. The Commonwealth Act includes a subsection referring to section 105 of that Act.

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.”

93 The complexities of the section have been considered on a number of occasions by this Court (R v DBG [2002] NSWCCA 328, 133 A Crim R 227; R v MDB [2005] NSWCCA 354. However, the present case does not require a detailed analysis of the section. The attack upon the complainant’s credibility by the assertion that she was responding to the suggestion of AS and BS with consequences for the family law proceedings, together with the furtherance of her own desire to live with her father, are contrary to the evidence that she reported that she had been abused when the issue was raised by the teacher. Evidence of the conversation with the teacher followed by the conversation with her stepmother contradicts any suggestion that it was her father or stepmother who encouraged or provoked the complaint.

94 Before the evidence could have been admitted pursuant to s 108 leave was required which would have raised for consideration the matters in s 192. Given the nature of the proceedings and the suggestion that the complainant may have fabricated her evidence for ulterior purposes the evidence complained of has a particular significance in the trial. It did not add significantly to the length of the trial and in my judgment if the question had been raised leave would inevitably have been granted.

95 Given that, as I have stated in [83], his Honour erred in admitting the evidence under s 66 of the Evidence Act I am satisfied that no miscarriage of justice occurred. The evidence of the complaint to the school teacher was brief and lacked detail of particular events. The complaint to the step-mother had more detail although not significantly greater. The evidence of complaint added little if anything to the detail of the events given by the complainant in the lengthy recorded police interview which followed shortly thereafter.

Ground 6 – his Honour erred in his directions on the Markuleski principle (R v Markuleski (2001) 52 NSWLR 82)

96 After his Honour had completed his summing up he invited counsel to raise any matters of concern. Counsel for the appellant asked for a Markuleski direction.

97 When the jury returned his Honour reminded the jury of the details of the matters relied on by the Crown as constituting the offence in the indictment. He then said:

“Of course, if you disbelieve [the complainant] on any of these four matters, then that would affect her credit on the other three. You have to bear that in mind because it would be a matter of credit and it would affect her credit and it would flow over into the other 3 matters.”

98 No issue was raised by trial counsel with this form of direction. However, it was submitted that the jury should have been carefully instructed in conformity with s 66EA(7) of the Act that they were to consider each of the four occasions separately. It was further submitted that they should have been told that it was necessary for them to consider each occasion as if it were a separate count in an indictment and directed the jury to the effect that a reasonable doubt with respect to the complainant’s evidence in relation to any occasion ought to be taken into account when assessing the complainant’s credit generally.

99 The directions considered in Markuleski are not required in all cases (see Spigelman CJ at [187] and Hajje v The Queen [2006] NSWCCA 23 at [102]). Even when a direction is required a precise wording has not been mandated.

100 The defence case at trial was that the complainant had fabricated the entirety of the alleged misconduct. In reality the jury either accepted her evidence entirely or rejected it. In these circumstances I doubt whether a direction was required. In any event I am satisfied that the direction which his Honour gave was adequate to deal with the issue. Although in the passage I have quoted his Honour refers to “disbelieve” his Honour continued to warn the jury about the care with which they must approach the complainant’s evidence and the need for the jury to be satisfied beyond reasonable doubt. His Honour had earlier emphasised on a number of occasions that the jury was required to be satisfied beyond reasonable doubt.

101 The absence of any concern expressed by trial counsel confirms that in the context of the entire summing up the issue was adequately addressed. I would refuse leave to raise ground 6.

Application for leave to appeal against sentence

102 Two grounds were advanced in support of this application. Firstly complaint is made of a failure to find special circumstances. Secondly, it was submitted that the sentence was manifestly excessive.

103 The maximum penalty for the offence was imprisonment for 25 years. The appellant was sentenced to a non-parole period of 7½ years with a further term of 2½ years. His Honour found that the offence was in the medium range of seriousness. The appellant pleaded not guilty and his Honour found an absence of contrition.

104 His Honour identified the offence as having caused grave harm to the complainant and indicated that the sentence must reflect the need for general deterrence.

105 The appellant relied on a combination of matters as constituting special circumstances. Being without criminal antecedents and of prior good character it was submitted that there was a need for rehabilitation and extended supervision by the Probation and Parole Service. It was also submitted that this would be the appellant’s first custodial sentence and, by reason of the nature of the offence, he would serve his sentence in the more onerous circumstances of protective custody.

106 The rehabilitation of sexual offenders has been the subject of consideration by this Court in a number of cases dealing with the Crimes (Serious Sex Offenders) Act 2006 (see Attorney-General for the State of NSW v Winters [2007] NSWSC 1071; Attorney-General for the State of NSW v Tillman [2007] NSWSC 605).

107 A program known as CUBIT has been developed and is available within the prison system to sexual offenders. It is an intensive course and requires the offender to undergo group therapy sessions for a period varying between 8 to 12 months. In relation to a serious sex offender the view has been taken that in most cases it would not be appropriate to release an offender to parole until they have successfully completed the course. When first developed the course required the offender to acknowledge their guilt before they could be admitted for treatment. This has been recently modified and offenders may now be admitted even if they do not acknowledge their guilt. However, the success of the treatment program will depend upon a number of factors and cannot be reliably predicted.

108 In the present case his Honour considered the submission of counsel that he should find special circumstances. His Honour said:

“As far as special circumstances are concerned, it has been submitted by his counsel that his lack of criminal antecedent and prior good character, his need for supervision and rehabilitation and the fact that this is (his) first custodial sentence, coupled with the fact that he will be serving his sentence in more onerous circumstances than most, may together represent special circumstances within the meaning of the Act. However, I have no evidence before me [on] how he will serve his sentence, nor have I any evidence upon which I could prophesy with certitude that he would have good prospects of rehabilitation. The prior good character and first occasion of imprisonment have been expressly rejected by the Court of Criminal Appeal as special circumstances. Special circumstances within the meaning of the Act must be something which is extraordinary, remarkable or unique to the prisoner and such circumstances cannot be constructed out of the matters which are of themselves without that quality, however many there be.”

109 Although his Honour’s reasons are brief it is apparent that each of the submissions made by counsel were considered. In the exercise of his discretion his Honour was not prepared to make a finding of special circumstances. I can detect no error.

110 In R v Simpson (2001) 53 NSWLR 704 this Court referred to the line of decided cases of the High Court, since Power v The Queen (1974) 131 CLR 623, in which the words “special circumstances” have appeared. Some cases have emphasised consideration of all relevant circumstances, including the need for rehabilitation, for the purpose of determining what the minimum period of actual incarceration should be. However, the fixing of a non-parole period is not solely or primarily dependent upon considerations of rehabilitation (at [59]).

111 In the present case there is clearly a need for the rehabilitation of the appellant. Whether he will be able to successfully complete the CUBIT program is unknown. However, it is likely that before he could be released to parole the program will have to be undertaken. Upon the assumption that he successfully completes the program he could be released to parole 2 ½ years before the completion of his sentence. During this time his rehabilitation may continue under appropriate supervision. In the circumstances I see no reason why his rehabilitation required a shorter term of full time custody.

112 It may be accepted that the appellant was to be sentenced as a person without criminal antecedents. However, whether this justified a finding of special circumstances has been questioned (see R v Kama (2001) 110 A Crim R 47 at [15]; R v Kaliti (2001) NSWCCA 268 at [10]; R v Christoph (2003) 140 A Crim R 45 at [67]). The significance of a lack of criminal antecedents may also be less significant when the offence involves the course of conduct over a number of years. (see Kaliti at [8]-[9]; R v Gent (2005) 162 A Crim R 29 at [45]-[60] for a discussion of affording less weight to prior good character and lack of prior convictions especially in child sexual assault and drug trafficking cases).

113 Although it was submitted that the appellant may have to spend his time in custody in more onerous conditions by reason of the nature of his offence there was no evidence to this effect. As I understand the current position arrangements are made for sexual offenders to be accommodated separately from the general prison population. However, they do not serve their sentences in isolation. Without evidence I could not accept that these conditions are more onerous than for other offenders (see R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168; R v Merrin (2001) NSWCCA 255; R v Potier (2004) NSWCCA 136 at [93]).

114 In the circumstances his Honour did not err by failing to find special circumstances.

115 The offence of persistent sexual abuse contrary to s 66EA carries a maximum prison term of 25 years. It is a more serious offence than the offences which comprise the individual acts. The first incident alleged in the indictment would have been an offence against s 66A of the Crimes Act which carries a maximum penalty of 25 years and a standard non parole period of 15 years. The second matter would have been an offence against s 61M(2) of the Crimes Act for which the maximum penalty was 10 years imprisonment with a standard non parole period of 5 years. The third matter would have been an offence against s 61J and s 61P of the Crimes Act for which the maximum penalty was 20 years imprisonment with a standard non-parole period of 10 years. The fourth matter would have been an offence against s 66C of the Crimes Act for which the maximum penalty was 20 years and in respect of which there was no standard non parole period.

116 Having regard to the range of penalties in respect of the individual acts the sentence which his Honour imposed was not excessive. The appellant pleaded not guilty and was convicted after trial. There is no indication of any contrition and his prospects of rehabilitation are unknown. The offence continued over a significant period of time. The appellant was in a position of trust to the complainant which was seriously breached.

117 A measure of the severity of the sentence can be gauged by consideration of the penalty which would have been available in relation to the first incident if separately charged. The trial judge found the offence to be in the mid range and in my opinion this would have been an appropriate description of the first incident. A mid range offence would carry the standard non parole period of 15 years. In the present case the overall sentence was 10 years and the non parole period 7½ years. His Honour determined the offence to be within the mid range and in these circumstances the sentence which his Honour imposed was not excessive.

Orders

1. The appeal against conviction is dismissed
2. Grant leave to appeal the sentence and dismiss the appeal.

118 HALL J: I agree with McClellan CJ at CL.

119 PRICE J: I agree with McClellan CJ at CL.

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24/04/2008	-	[66] third line - 9 September 2004 changed to 1 September 2004; 11 weeks changed to 12 weeks.[75] the quote commencing "the gap" was from Skipworth v The Queen, Mason P. The quote now commences "as to what." The quote commencing "I regard" was from the trial judge, Shadbolt DCJ.[83] sixth line - the words "a gap of 66 days" now reads "the gap."[85] first line - the words "66 days" now reads "in fact 85 days." - Paragraph(s) [66]; [75]; [83]; [85]
01/05/2008	-	[83[ the word "gap" was omitted from fifth line - Paragraph(s) [83]