Lincoln v The King

[2024] NSWCCA 173

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lincoln v R [2024] NSWCCA 173

Hearing dates:

12 August 2024

Date of orders:

18 September 2024

Decision date:

18 September 2024

Before:

Mitchelmore JA at [1]
Cavanagh J at [2]
Chen J at [3]

Decision:

(1) Refuse leave to the applicant to appeal against his conviction.

(2) Grant leave to the applicant to appeal against the sentence imposed on 24 March 2023.

(3) Dismiss the appeal against the sentence.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Evidence Act 1995 (NSW)

Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46

Aryal v R [2021] NSWCCA 2

Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125

Boatswain v R [2019] NSWCCA 238

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

Caristo v R [2011] NSWCCA 7

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Franklin v R [2019] NSWCCA 325

Geraghty v R [2023] NSWCCA 47

Golding v R [2024] NSWCCA 129

Greenaway v R [2021] NSWCCA 253

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

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

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

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233

Kelly v R [2021] NSWCCA 154

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kerr v R [2016] NSWCCA 218

Kirby v R [2021] NSWCCA 162

Kresovic v R [2018] NSWCCA 37

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

R v Bauer (2018) 266 CLR 56; [2018] HCA 40

R v Cattell [2019] NSWCCA 297; (2019) 280 A Crim R 502

R v Cramp [2004] NSWCCA 264

R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412

R v Holder [1983] 3 NSWLR 245

R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Rahman v R [2020] NSWCCA 13

Sydney Trains v Batshon [2021] NSWCA 143

Taitoko v R [2020] NSWCCA 43

TL v The King (2022) 275 CLR 83; [2022] HCA 35

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

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

Paul Joseph Lincoln (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Martin (Applicant)
S Traynor (Respondent)

Solicitors:
Solomon Tudehope Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00179479

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in place in regard to any matter which identifies, or which is likely to lead to the identification of, the complainants, anonymised in these reasons as LS, GS and RS.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 68

Date of Decision:

24 March 2023

Before:

Mahony SC DCJ

File Number(s):

2020/00179479

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Paul Joseph Lincoln, stood trial in the District Court on an indictment containing six counts of sexual offending against the complainants, LS and GS, alleged to have been committed between 1969 and 1976 when the complainants were aged between 9 and 15 years. The indictment had initially contained an additional allegation that the applicant had touched the complainants’ older brother, RS, on the genitals at the applicant’s home in Albert Road, Strathfield, when RS was aged 16 (‘the Albert Road incident’), but this charge was withdrawn prior to trial.

The trial proceeded before his Honour Judge Mahony SC (‘the trial judge’) and a jury between 4 and 18 August 2022. Prior to the trial, the Crown served upon the applicant a tendency notice, which relied upon RS’s evidence about the Albert Road incident, inter alia, to prove the asserted tendencies. This evidence was adduced by the Crown at trial, and the trial judge directed the jury as to its use as tendency evidence, without any objection being taken by the applicant’s counsel.

At the completion of the trial, the jury returned verdicts of guilty in respect of the following counts:

1. Count 1: that the applicant did assault LS, a girl under 16 years of age (namely, 9 years) and, at the time of the assault, committed an act of indecency on LS – an offence contrary to s 76 of the Crimes Act 1900 (NSW).

2. Count 4: that the applicant did rape LS – an offence contrary to s 63 of the Crimes Act.

3. Count 6: that the applicant did assault GS and, at the time of the assault, committed an act of indecency upon GS – an offence contrary to s 81 of the Crimes Act.

The jury was unable to reach a verdict in regard to count 2, and was subsequently discharged in connection with that count and its alternative – count 3.

On 24 March 2023, the applicant was sentenced by the trial judge to an aggregate sentence of 10 years imprisonment, with a non-parole period of 6 years, commencing on 18 August 2022 and expiring on 17 August 2032. The applicant is eligible for parole on 17 August 2028.

By amended notice of appeal filed 1 July 2024, the applicant appeals against his conviction and seeks leave to appeal against the sentence imposed upon him, raising five grounds:

1. That the evidence of RS relating to the Albert Road incident was wrongly admitted as tendency evidence because the evidence of RS demonstrated that he was over 18 years of age at the time that this event occurred, and therefore is not capable of supporting the asserted tendency that the applicant had a sexual interest in children aged between 9 and 16 years (ground 1);

2. That the (wrongful) admission of the evidence of RS, LS and GS about the Albert Road incident resulted in a substantial miscarriage of justice (ground 2);

3. That the jury were wrongly directed that the evidence of RS about the Albert Road incident was available as tendency evidence and could be used “in a ‘tendency’ reasoning process” (ground 3);

4. That the trial judge failed to give reasons in connection with the findings of substantial emotional harm suffered by the victim, LS, in regard to counts 1 and 4 (ground 4); and

5. That the sentence was manifestly excessive (ground 5).

Given no objection had been made at trial to the adducing of the tendency evidence and the trial judge’s direction in regard to it, leave of this Court was required to raise grounds 1, 2 and 3, pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

The Court (per Chen J, Mitchelmore JA and Cavanagh J agreeing), refusing the applicant leave to appeal against his conviction, granting leave to appeal against his sentence but dismissing the appeal, held:

As to the conviction appeal:

1. Grounds 2 and 3 advanced by the applicant were each premised upon this Court upholding ground 1. As such, the conviction appeal turns upon the resolution to that ground, being the admissibility of the tendency evidence relating to the Albert Road incident (at [55]).

2. In assessing the probative value of tendency evidence sought to be adduced, s 97(1)(b) of the Evidence Act 1995 (NSW) requires the court to take the proposed evidence at its highest – that is, to assume that the jury will accept it. As such, no question as to the credibility or reliability of the evidence can arise (at [66]).

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; R v Bauer (2018) 266 CLR 56; [2018] HCA 40 cited.

3. Contrary to the submissions of the applicant, the evidence was not uniformly demonstrative of the fact that RS was 18 years or older at the time of the Albert Road incident. Rather, there was a body of evidence, principally elicited during cross-examination, that the Albert Road incident occurred in 1971, and therefore when RS was approximately 16 years old. The evidence of the Albert Road incident, taken at its highest, was capable of establishing the asserted tendencies and was admissible as tendency evidence. Grounds 1, 2 and 3 must therefore be rejected (at [73]-[90]).

4. Leave to appeal under r 4.15 should be refused, given no miscarriage of justice has arisen “such that the [applicant] has lost a real chance of acquittal”, nor has a “necessary element of a fair trial according to law [been] overlooked”: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]-[25] (at [96]-[99]).

As to the sentence appeal:

1. The finding of the trial judge that the offending in counts 1 and 4 resulted in substantial emotional harm to the victim, LS, must be understood within the context of the sentencing hearing. During oral submissions before the trial judge, counsel for the applicant accepted that the Court “will find substantial harm” based on LS’s victim impact statement, and this was recorded in the reasons of the trial judge. Given that concession, the reasons of the trial judge in this respect are legally sufficient (at [121]-[128]).

2. There is no substance to the suggestion by the applicant that the indicative sentence nominated by the trial judge for count 4 was in any way erroneous when considered on its own or by reference to the sentencing decisions relied upon by the applicant (at [140]-[145]).

3. The aggregate sentence imposed by the trial judge is within the range of sentences that appropriately reflect the totality of the criminality involved. Neither the aggregate sentence imposed, nor the non-parole period, were plainly unjust or unreasonable or manifestly excessive (at [154]-[169]).

JUDGMENT

1. MITCHELMORE JA: I agree that the orders proposed by Chen J should be made for the reasons his Honour gives.

2. CAVANAGH J: I agree with Chen J.

3. CHEN J: By indictment dated 2 August 2022, Paul Joseph Lincoln (‘the applicant’) was charged with six offences, some of which were in the alternative, relating to sexual offences against two complainants (LS – DOB: 3/5/1962 and her older brother, GS – DOB: 26/10/1959) that were alleged to have occurred in the period between 1969 and 1976. LS and GS had met the applicant through their older brother, RS, when they were members of the Catholic Youth Organisation (‘CYO’). At the time of the offending, LS was aged between 9 and 13 years and GS was aged between 11 and 15 years.

4. The six counts were as follows:

1. Count 1: between 1 January 1972 and 3 May 1972, the applicant did assault LS, a girl under 16 years of age (namely, 9 years) and, at the time of the assault, committed an act of indecency on LS – an offence contrary to s 76 of the Crimes Act 1900 (NSW).

2. Count 2: between 2 May 1972 and 1 January 1973, the applicant did rape LS – an offence contrary to s 63 of the Crimes Act.

3. Count 3 (in the alternative to count 2): between 2 May 1972 and 1 January 1973, the applicant did have unlawful carnal knowledge of LS, a girl above the age of 10 years and under the age of 16 years (namely, 10 years) – an offence contrary to s 71 of the Crimes Act.

4. Count 4: between 2 May 1975 and 3 May 1976, the applicant did rape LS – an offence contrary to s 63 of the Crimes Act.

5. Count 5 (in the alternative to count 4): between 2 May 1975 and 3 May 1976, the applicant did have unlawful carnal knowledge of LS, a girl above the age of 10 years and under the age of 16 years (namely, 13 years) – an offence contrary to s 71 of the Crimes Act.

6. Count 6: between 27 October 1969 and 1 January 1974, the applicant did assault GS and, at the time of the assault, committed an act of indecency upon GS – an offence contrary to s 81 of the Crimes Act. [1]

   1. The indictment initially alleged that the offending occurred between 1 January and 31 December 1972. On 11 August 2022, the Crown sought, and the trial judge granted, leave to amend the indictment, to substitute the dates identified above.

5. Initially, the applicant was charged on indictment in connection with an allegation that he touched RS on the genitals, at the applicant’s home in Albert Road, Strathfield, when RS was aged 16 (as count 7 – the ‘Albert Road incident’), being an offence contrary to s 81 of the Crimes Act. That charge did not proceed, however, resulting in the fresh (six count) indictment dated 2 August 2022.

6. The applicant, who entered pleas of not guilty to each of the charges, stood trial in the District Court before his Honour Judge Mahony SC (‘the trial judge’) and a jury between 4 and 18 August 2022.

7. Prior to trial, the Crown served a tendency notice upon the applicant. The tendencies asserted in that notice relied, inter alia, upon the evidence about the Albert Road incident. The Crown adduced that evidence at trial, without objection. The trial judge directed the jury as to the use of that evidence. No objection was taken to the direction given by the trial judge about the tendency evidence.

8. The jury returned verdicts of guilty in respect of counts 1, 4 (the alternative count, being count 5, therefore did not arise) and 6, but was hung for count 2. The jury was subsequently discharged in connection with that count and the alternative count – count 3.

9. Following his conviction, the applicant was sentenced by the trial judge on 24 March 2023. His Honour imposed an aggregate sentence of 10 years imprisonment, with a non-parole period of 6 years imprisonment, to commence on 18 August 2022, and expiring on 17 August 2032. The applicant is eligible for parole on 17 August 2028.

The appeal: introduction and overview

10. By amended notice of appeal filed 1 July 2024, the applicant appeals against his conviction and seeks leave to appeal against the sentence imposed upon him, raising five grounds. In relation to his conviction, the applicant’s grounds of appeal are as follows:

1. that the evidence of RS, LS and GS relating to the Albert Road incident was wrongly admitted (ground 1);

2. that the (wrongful) admission of the evidence of RS, LS and GS about the Albert Road incident resulted in a substantial miscarriage of justice (ground 2); and

3. that the jury were wrongly directed that the evidence of RS, LS and GS about the Albert Road incident was available as tendency evidence and could be used “in a ‘tendency’ reasoning process” (ground 3).

11. Although the notice of appeal was framed in this way, the written submissions filed and arguments on the appeal refined the applicant’s challenge as follows. First, the arguments directed to ground 1 were confined to the argument that the evidence of RS about the Albert Road incident was wrongly admitted as tendency evidence. The ultimate submission made by the applicant was that, contrary to the tendency notice that alleged that RS was aged 16 (and was a child) he was, in fact, an adult at the time this event occurred. Secondly, ground 2 was a corollary to ground 1: the applicant argued that, given the evidence of RS about the Albert Road incident was wrongly admitted as tendency evidence, the admission of evidence given by LS and GS – which was broadly about that incident – “compounded and aggravated” the wrongful admission of RS’s evidence and caused “an actual substantial miscarriage of justice”. Thirdly, ground 3 was also a corollary to ground 1, and the arguments directed to this ground were confined to a complaint that the jury were misdirected in relation to the evidence of RS – given, on the applicant’s argument, his evidence was wrongly admitted as tendency evidence.

12. The applicant’s written submissions referred to ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) as the basis for the appeal. However, neither the applicant’s written submissions, nor oral ones, sought to identify a question of law alone in relation to any of the grounds and, thus, whether the appeal is as of right (s 5(1)(a) of the Criminal Appeal Act) or by leave (s 5(1)(b) of the Criminal Appeal Act), merely noting that in the present case “the complaints referred to may not involve a question of law alone. If this is the case, so leave will be required” (applicant’s submissions at [3]). Further, in relation to s 6 of the Criminal Appeal Act, neither the applicant’s written submissions, nor the oral ones, sought to identify, possibly with the exception of ground 2, whether the remaining grounds were directed to the second or third limb of s 6(1).

13. The following further matters should also be noted in relation to the applicant’s grounds of appeal challenging his conviction. At trial, no objection was made to the tendency evidence adduced, nor was any objection made to the directions the trial judge gave about that evidence (in fact, they were agreed to by counsel for the applicant) and nor, finally, was any application made to discharge the jury based upon what is argued in this Court to be the sequential errors including and following on from the wrongful admission of the tendency evidence. The applicant accepted that, given these matters, leave of this Court is required to raise grounds 1 and 3: r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Tcpt, 12 August 2024, p 3(6)-(12)).

14. In relation to the sentence imposed upon him, the applicant’s grounds of appeal are as follows:

1. that the trial judge failed to give reasons in connection with the findings of substantial emotional harm suffered by the victim, LS, in regard to counts 1 and 4 (ground 4); and

2. that the sentence was manifestly excessive (ground 5).

15. The written submissions filed by the applicant directed to ground 4 extended the challenge, in effect arguing that not only were the reasons insufficient, but that there was an insufficient factual basis for the finding of substantial emotional harm. However, during the course of submissions, the applicant conceded that there was material available to support that finding, such that the ground was confined to the sufficiency of the reasons given, as expressed in ground 4 of the notice of appeal.

Background: the course of the trial and the tendency evidence

16. Given the applicant’s challenge against his conviction relates to the use of tendency evidence in connection with the Albert Road incident, it suffices to first describe the account of each complainant in broad terms; to explain a forensic issue that arose and the stance adopted to that issue by the applicant’s counsel at trial; and, thereafter, to outline the tendency evidence, and the manner in which it was dealt with before, and during, the trial.

The evidence of the complainants

17. The Crown case was principally based on the evidence of each complainant, LS and GS.

18. In relation to count 1, LS’s evidence was that, prior to her 10^th birthday, she went with the applicant in his car to his home in Concord. After they had arrived, the applicant took her to his bedroom because the applicant said he wanted to talk to her. Whilst in the bedroom, the applicant “unzipped his pants” and talked to her “about oral sex”. The applicant exposed his erect penis and came towards her indicating that he wanted her “to put it in my mouth”, which he eventually did. LS said that this went on for about “10 minutes”, and the applicant ejaculated into her mouth.

19. In relation to count 2 (and, in the alternative, count 3), LS’s evidence was that, when she was 10 years old, the applicant took her to his home in Concord. He led LS into his bedroom where he told her that they were “going to do something different this time”. The applicant then made LS undress, pulled his penis out and, whilst LS was lying on the bed, “put his penis” inside her vagina. LS’s evidence was that she “tightened up and [was] frightened and struggling”, when he did this. The applicant ejaculated inside LS.

20. In relation to count 4 (and, in the alternative, count 5), LS’s evidence was that, when she was 13 years old and at home on her own, the applicant turned up. He took her into her parent’s bedroom and closed the door. He flung her on the bed, and she was screaming, following which “he started intercourse”, and ejaculated inside her.

21. Count 6 concerned GS. His evidence was that, when he was about 12 years old in 1972, he and the applicant went down to the cubby house that was built in the backyard of the S family home. GS’s evidence was that, when inside the cubby house, the applicant “put his arm around [him]”, which GS described as the applicant “sort of restraining me in a way or sort of controlling me”, at which time the applicant put his hand down GS’s pants and fondled his genitals. GS’s evidence was that this occurred for “[m]aybe a couple of minutes you know, could have been, could have been longer”.

A forensic issue at the trial

22. It is useful to note one of the forensic issues that arose in the trial, as it provides important context as to how the trial was conducted by counsel for the applicant – in particular, why RS was cross-examined in the manner that he was.

23. The applicant was, as earlier noted, charged with two counts of raping LS, contrary to s 63 of the Crimes Act (counts 2 and 4). The maximum penalty for that offence is life imprisonment. Count 2 is presently relevant. By that count, the applicant is alleged to have raped LS between 2 May 1972 and 1 January 1973 at the Lincoln family home in Burton Street, Concord, New South Wales. Count 1 was a charge that the applicant assaulted LS, and at that time, committed an act of indecency on her (forcing her to perform oral sex on him), between 1 January 1972 and 3 May 1972, at the Lincoln family home in Burton Street, Concord.

24. The applicant sought to undermine LS’s evidence going to counts 1 and 2 in several ways, including on the basis that the Lincoln family had, by 1971 or at the latest by 1972, moved from Concord to Albert Road, Strathfield. In support of this contention, the applicant’s counsel sought to highlight, through the cross-examination of RS, that the incident that he alleged took place as between him and the applicant in 1971 took place at Albert Road, Strathfield. The evidence of RS elicited during cross-examination enabled the applicant’s counsel to submit to the jury that LS’s evidence for counts 1 and 2 was unreliable and demonstrably wrong because the Lincoln family were living in Albert Road, Strathfield, and not Concord by 1971.

The tendency notice and evidence

25. The applicant was arraigned on 5 February 2021. Subsequently, the Crown served upon the applicant a tendency notice, pursuant to s 97(1)(a) of the Evidence Act 1995 (NSW), dated 2 June 2021 (‘the tendency notice’). The asserted tendencies, as set out in that notice, were as follows:

1. The applicant’s “tendency to have a particular state of mind, namely, a sexual interest in children aged between 9 and 16 years”; and

2. The applicant’s “tendency to act on that sexual interest, by engaging in sexual conduct with the three complainants when they were aged between 9 and 16 years, after making an acquaintance with the [S] family through the Catholic Youth Organisation and gaining the trust of the parents of the complainants, in order to have access to the complainants and their home”.

26. Two matters relating to the tendency notice should presently be observed. The first is that, in relation to the applicant’s tendency to act upon the sexual interest in children aged between 9 and 16 years by engaging in sexual conduct with the three complainants, the number of complainants reflected the fact that, at the time the tendency notice was served, the indictment contained seven counts and three complainants (being LS, GS and RS). The second is that the asserted tendencies were said to bear upon whether the applicant had committed the offences for which he had been charged and referred to the counts on the indictment being cross-admissible to support each count.

27. The Crown attached to the tendency notice a number of statements that were said to contain the “substance” of the tendency evidence sought to be adduced. That included the statement from RS dated 20 April 2020, which set out the details of the Albert Road incident, and when RS said it occurred.

28. The matter was listed for directions before the District Court on 24 and 30 August 2021. On 30 August 2021, the applicant’s counsel confirmed, in response to a specific question by the presiding judge about whether there was an issue with the Crown’s tendency notice, that it was “[n]ot in issue…” (Tcpt, 30 August 2021, p 1(50)-2(1)).

The tendency evidence and the course of the trial

The trial commences

29. On the day the trial was scheduled to commence, being 3 August 2022, the trial judge enquired of the parties about whether there were any pre-trial issues to be determined (Tcpt, 3 August 2022, p 2(35)-(36)). Consistent with the position adopted by the applicant when the matter was before the Court on 30 August 2021, no issue was raised about the tendency notice or the need to rule upon the admissibility of the tendency evidence the Crown proposed to adduce during the trial. The only pre-trial issue raised was one relating to outstanding subpoenas (Tcpt, 3 August 2022, p 2(41)).

30. The jury was empanelled on 4 August 2022 and the Crown opened to the jury on that day. The opening covered the evidence expected to be given across each of the counts. The Crown Prosecutor also explained to the jury how the applicant came to be involved with the S family – namely, that RS and the applicant had met through the CYO and became friends, and it was through that friendship with RS that the applicant was introduced to the S family.

31. The Crown also described the Albert Road incident as having occurred where the applicant lived with his family, a residence that was described as an apartment building in Strathfield, after RS and the applicant had been swimming. The incident was described during the Crown’s opening in these terms (Tcpt, 4 August 2022, p 6(7)-(18)):

They went swimming together. They were friends. [RS will] tell you that one time he was over at [the applicant’s] house… and the [applicant] asked him to pull his pants down after they’d been swimming. He found it odd but the [applicant] said something like, “I just want to try something. It won’t take long. I want to check something out.” Anyway, [RS] pulled down his pants and exposed his penis and the [applicant] touched it and motioned – a masturbating sort of motion on it. It didn’t last long, he pulled his pants up and when asked he didn’t feel that it was good and their relationship essentially faded after that. Again, you might find an allegation or charge on that indictment about that. It’s contextual and it’s part of what the Crown will argue to be tendency. You’ll hear more about that later on.

32. Counsel for the applicant did not object to, or raise any issue with the trial judge about, any part of the Crown’s opening. Thereafter, the Crown commenced its case by calling evidence.

33. LS was the first witness called. Her evidence-in-chief commenced on 4 August 2022 and continued on 5 August 2022. She was then cross-examined for the balance of that day and on 8 August 2022. GS was then called, and his evidence-in-chief consisted of pre-recorded evidence that he had given on 8 September 2021, which was played to the jury. Thereafter, GS was cross-examined on 8 and 9 August 2022. RS was called on 9 August 2022. RS was cross-examined on 9 and 10 August 2022.

34. Each of LS and GS gave some evidence, when cross-examined by counsel for the applicant, that related to the Albert Road incident. That evidence is better understood following an overview of the evidence given by RS about that incident.

The evidence from RS – including the Albert Road incident

35. RS was born on 25 March 1955. His evidence was that he joined the CYO at Concord when he was “about 16”, which he agreed was in “about 1971”. RS came to know the applicant after he joined the CYO, and they became “friends”, notwithstanding the applicant was “two or three years’ older” than him.

36. RS gave evidence that the applicant came to the S family home “every couple of weeks” and that he went to the applicant’s family residence “twice”. He described the applicant’s family residence as a “unit complex building” located in Albert Road, Strathfield.

37. RS said that when he went to the S family home in Strathfield “for the first time” he “might have driven myself I think, yeah” and that, at that time, he “had to be 16 years, 9 months to get me licence”. (Later, when cross-examined, RS said that he “got my learner’s permit then. A learner’s permit at 16, 9 months”).

38. On the first occasion that RS went to the applicant’s home in Albert Road, RS said that he went there “with a group” and they went swimming in the pool. On the second occasion that RS went to the applicant’s home in Albert Road, an incident occurred. RS described the applicant “badgering” him and trying to convince him to remove his shorts because the applicant was “curious about something”. RS then described, after removing his pants, the applicant “grabbed hold of my penis” and commenced “like a masturbation type of motion” for probably “about a minute”. RS said that at the time of this incident, he “was probably 16 and a half”.

39. RS was cross-examined by counsel for the applicant about this incident. The cross-examination involved exploring with RS how he got to the applicant’s family residence on the day the Albert Road incident occurred and, as part of that cross-examination, exploring RS’s age at that time. Initially, counsel for the applicant put to RS that the “incident that occurred at Albert Road, Strathfield, it occurred in 1971; is that correct?”, to which RS responded, “I think it was 72, I think it was”.

40. Having given that evidence, and obviously being dissatisfied with it, counsel for the applicant drew RS’s attention to the version of the Albert Road incident contained in the statement made by him to police on 20 April 2020 (MFI 20) in order to establish the occurrence of the Albert Road incident in 1971. That is apparent from the further cross-examination that immediately followed:

Q. In that statement, and I’m reading from the statement, it appears that you said, “I can clearly remember a time when I was 16 years old (1971), and I was at [the applicant’s] home at Albert Road, Strathfield”. Does that help you?

A. 71, yeah that’s when I was over at [the applicant’s] place when that incident happened.

Q. That’s in 1971, sometime in 1971; is that right?

A. Yeah.

Q. As I understand your evidence today, you say that it was sometime during a weekend; is that right?

A. Yes.

Q. Do I also understand that you drove there?

A. That I’m not sure of. I don’t remember how I got there. I just can’t remember how. He could’ve given me a lift there. I just can’t remember.

41. The applicant’s counsel later returned to the Albert Road incident on several occasions when cross-examining RS, and the premise of that cross-examination included that the incident occurred in 1971 – evident from the following exchange:

Q. You said that after the incident with [the applicant], that you say occurred in 1971 at Strathfield, there was a cooling of the relationship you had; is that right?

A. That's right.

Q. In 1973, that is, just a little while after this incident in 1971, do you recall going to a ball at the CYO?

A. That's quite possible, yeah. I probably did go but I can't recall at the moment. It's quite possible.

42. Another instance where the cross-examination assumed the Albert Road incident occurred in 1971 was as follows: the applicant’s counsel suggested to RS that “this incident at Strathfield occurred in 1971? Is that correct?”, to which RS responded: “To my knowledge, yes”.

43. Near the end of the cross-examination of RS, two propositions were put to him by counsel for the applicant. The first proposition was that the first occasion that RS went inside the Albert Road premises was in 1973 or 1974. This was reflected in the following cross-examination:

Q. Can I suggest to you that the first occasion when you might have been inside [the applicant’s] unit at Albert Road, Strathfield, that is, the unit owned by his parents, was in 1973 or 1974.

A. Okay, right.

Q. Do you accept that?

A. The first time?

Q. Yeah

A. 1974, as I said, I don’t remember 100%. It’s a while ago but it’s possible.

44. The second proposition that was put to RS by counsel for the applicant was that his evidence about the “sexual encounter” in 1971 was not true. This was reflected in the following cross-examination:

Q. I suggest to you, sir, that this story about you having had some sort of sexual encounter at Albert Road in 1971 is not the truth?

A. No. Everyone has an opinion, so you have yours and I have mine. I have my belief.

45. Having set out that summary of RS’s evidence, I will next identify the evidence given by LS and GS about the Albert Road incident.

The evidence from LS and GS relating to the Albert Road incident

46. When LS and GS gave their evidence-in-chief, no evidence was elicited about the Albert Road incident, or any matter relating to it. The evidence that each of them gave in connection with that incident arose solely from their cross-examination by counsel for the applicant.

47. Thus, for LS, her evidence when cross-examined on 8 August 2022 was as follows:

Q. So as far as you’re aware, [RS] doesn’t know to this day what happened to you?

A. [RS] didn’t know about any of it until this Court case started.

Q. Did you have a meeting with [RS] and tell him?

A. No. Detective Basleigh interviewed my brothers and ended up telling me that there was a charge coming from both of them against [the applicant]—

Q. I see.

A. –and I had no idea that my brother had trouble with him – my eldest brother [RS]. I knew about [GS] at 27 but I didn’t know the details.

48. For GS, his evidence when cross-examined on 9 August 2022 was as follows:

Q. Putting aside what was said exactly, do you recall telling your mother at some stage what you were talking about when you said, “It happened to me, too”?

A. Yeah.

Q. You do?

A. Yeah, but I don’t remember whether we went into detail or just left it at a – just, “He interfered with me,” and left it at that. It was a very embarrassing situation, and as I said, I believe my mum was in denial. She’s obviously felt dreadful about it, having – letting her children be – you know – contributed to her children to be in a vulnerable situation like that. I can’t imagine what was going on in her mind. Yeah.

Q. Are you suggesting that your mother also knew about [RS]?

A. I didn’t – at the time, I didn’t have a clue about [RS].

49. Despite eliciting this evidence from these witnesses, no issue was raised by counsel for the applicant about it, either at the time that it was adduced or any time thereafter.

The summing up and directions given to the jury

50. The Crown case closed on 11 August 2022. The applicant did not give evidence, but three witnesses were called that, very broadly, dealt with their association with the CYO and members of the S family, as well as when the applicant moved with his family to the premises in Albert Road, Strathfield. The case for the applicant also closed on 11 August 2022.

51. Once the cases had closed, the trial judge provided the parties with a “bundle of directions”, that included a “draft tendency evidence direction”, a direction that covered RS’s evidence (MFI 30).

52. On 12 August 2022, the trial judge sought submissions from the Crown and the applicant in connection with the draft directions that he had provided the day prior. In connection with the tendency direction, the applicant’s counsel indicated: “I have no objection to it”. The jury was, in the course of the trial judge’s summing up on 15 August 2022, directed in accordance with the tendency direction.

53. With that overview of the trial, and the evidence (including the tendency evidence adduced), I turn now to address the applicant’s challenge to his conviction.

The conviction appeal: introduction   

54. The applicant raises three interwoven grounds of appeal against his conviction, each of which relates to the tendency evidence given about the Albert Road incident. The applicant argues that the tendency evidence relating to the Albert Road incident was wrongly admitted (ground 1), that the jury was misdirected in connection with that tendency evidence (ground 3), with the consequence that the (wrongful) admission of that evidence and the direction to the jury on it resulted in a substantial miscarriage of justice (ground 2).

55. In relation to ground 3, this ground was not advanced as an alternative to ground 1 but was premised upon this Court upholding that ground (applicant’s submissions at [56]). That is, it was not argued that, even if the tendency evidence was properly admitted, the jury was nevertheless still wrongly directed in connection with the use of that evidence. Further, ground 2 is also a corollary to ground 1: the argument was that the evidence of LS and GS relating to the Albert Road incident “compounded and aggravated” the wrongful admission of the evidence about the Albert Road incident given by RS. So understood, the appeal itself turns upon the resolution of ground 1, being the admissibility of the tendency evidence relating to the Albert Road incident.

56. As I explain in what follows, the tendency evidence was admissible and, given there is no separate complaint in connection with the directions given to the jury about that evidence, no misdirection occurred. It follows that there has been no miscarriage of justice, as argued. The conviction appeal should be dismissed.

Grounds 1 and 3: the wrongful admission of the tendency evidence and the directions to the jury

57. By ground 1, the essential argument advanced by the applicant is that, having regard to the evidence given by RS – about how he got to the premises where the Albert Road incident occurred as well as RS “volunteering” that the incident could have been as late as 1974 – it necessarily followed that the evidence “did not and could not” be within the tendency alleged because the evidence was incapable of establishing that the incident occurred before RS’s 16^th birthday (applicant’s submissions at [30]-[31]). The applicant submitted, therefore, that the evidence of RS relating to the Albert Road incident was wrongly admitted (applicant’s submissions at [35]).

58. An aspect of this argument was refined during the course of submissions in this Court. The applicant accepted, presumably given the terms of ss 97A(2) and (6) of the Evidence Act, that although the tendencies sought to be proved related to children aged between 9 and 16 years, the critical question was whether RS was under the age of 18 years (and thus a child) at the time of the Albert Road incident. As was put during submissions in this Court, the assessment of the evidence of RS was said to mandate “a conclusion that ends up with the Crown not being able to establish that [RS] is under 18 at the time of the [Albert Road incident]” (Tcpt, 12 August 2024, p 26(31)-(33); 27(25)-(29); 33(20)-(22)). Further, the applicant argued that the evidence RS gave about his likely age at the time of this incident was “contradictory” and “inaccurate and demonstrably so” (Tcpt, 12 August 2024, p 29(5)-(33)), with the consequence that the evidence did not have significant probative value – thereby denying its admissibility by reason of s 97(1)(b) of the Evidence Act.

59. The Crown submitted, with some force, that this ground as framed engaged the second limb of s 6(1) of the Criminal Appeal Act – namely, that “the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law” – however, given there was no objection to the evidence of RS being admitted, nor any ruling as to its admissibility, there was no “decision” of any question of law that could be the subject of a second limb error (Crown submissions at [75] and [77]). Although, as I have earlier noted, the applicant did not address the precise statutory footing for the appeal, I propose nevertheless to deal with the substance of the applicant’s complaint underpinning each of the grounds – namely, that the evidence relating to, and about, the Albert Road incident was wrongly admitted with the consequence that the trial miscarried. However, in approaching the matter in this way, leave to appeal is required: Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125 at [56].

Tendency evidence: the Evidence Act and some general principles

60. The admission of tendency evidence is governed by s 97 of the Evidence Act, which provides:

97 The tendency rule

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

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

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

(2) Subsection (1) (a) does not apply if—

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

61. Section 97(2) is not relevant and may be put to one side.

62. Thus, by its terms, the admissibility of tendency evidence requires satisfaction of two matters – the giving of notice (s 97(1)(a)) and that the “court thinks” the evidence has “significant probative value” (s 97(1)(b)). [2] No issue was raised about the giving of notice by any of the grounds of appeal (or any arguments in support of those grounds), so it may also be put to one side. The applicant’s complaint was directed to the second matter – namely, that the evidence from RS did not have significant probative value simply because he was over 18 years of age at the time of the Albert Road incident.

    2. The Dictionary to the Evidence Act defines ‘probative value’ as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

63. The test posed by s 97(1)(b) requires “consideration of two interrelated but separate matters” – namely, the extent to which the evidence supports the asserted tendency and the extent to which the tendency is probative of the charged offences or the fact or facts sought to be proved by the evidence: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] (‘Hughes’); TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [28] (‘TL’). The fact that the matters are “interrelated means that they are not necessarily to be addressed by a two-stage enquiry”: Geraghty v R [2023] NSWCCA 47 at [45] (‘Geraghty’).

64. The position with respect to substantive probative value within s 97(1)(b) was summarised in Hughes at [41] in this way:

In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.    

65. The applicant’s argument was directed to the first matter posited by s 97(1)(b): that is, given RS was, on the applicant’s argument, over 18 years of age and thus not a “child”, the evidence for that reason could not support the asserted tendency. What was not argued by the applicant should also be noted. The applicant did not argue that if the position were otherwise, that the evidence from RS about the Albert Road incident was not strongly supportive of proof of the tendency asserted, nor was it argued that the tendency asserted did not strongly support the proof of a fact that makes up the offences charged.

66. Given the nature of the arguments advanced by the applicant, two further matters should also be emphasised. The first is that, when determining the probative value of the evidence sought to be adduced, s 97(1)(b) requires the Court to take the proposed evidence at its highest – that is, to assume that the jury will accept it: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [51]-[52] (‘IMM’); R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69] (‘Bauer’); TL at [28]. The second is that no question of the credibility or reliability of the evidence can arise. That is clear from what was said in IMM at [39], and at [52], which provides as follows:

Once it is understood that an assumption as to the jury’s acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise.  For the same reason, no question as to the reliability of the evidence can arise.  If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated.  There can be no disaggregation of the two – reliability and credibility – as Dupas v The Queen may imply.  They are both subsumed in the jury’s acceptance of the evidence. 

67. Section 101(2) of the Evidence Act should for completeness be mentioned, albeit that it was not raised by the applicant as relevant to any of the grounds of appeal, as it provides a further restriction on the use of tendency evidence when adduced by the prosecution about a defendant. That section provides:

(2)  Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

68. Section 97A of the Evidence Act is also relevant. That section, which was accepted by the parties to apply to the present matter, relates to admissibility of tendency evidence in proceedings involving child sexual offences: s 97A(1). By s 97A(2), a presumption is created that particular tendency evidence about a defendant will have significant probative value for the purposes of ss 97(1)(b) and 101(2) of the Evidence Act:

(2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2)—

(a)  tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest),

(b)  tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.

Discussion and consideration

69. As I have earlier noted, the essential argument advanced for this ground reduced to a submission that the evidence of RS demonstrated that RS was over 18 years of age (and thus not a child) – with the consequence that the evidence he gave about the Albert Road incident had no probative value in terms of the tendencies asserted. That consequence followed, the applicant argued, because the evidence RS gave clearly demonstrated that RS had driven to the applicant’s family residence on the occasion of the Albert Road incident and additionally, or separately, he was in fact 18 years of age at that time, possibly older.

70. To make good this argument, the applicant drew attention to aspects of the evidence given by RS when he was cross-examined about these topics, as follows.

71. In relation to how RS travelled to the applicant’s residence on the day of the Albert Road incident, the applicant emphasised RS’s evidence, when cross-examined, where he said that he “might have driven myself I think”; where he agreed that on the first occasion he visited the Strathfield apartment, he “would’ve driven there, yes”; and RS’s agreement that he was “probably 16 and a half” at the time of the incident. The effect of this evidence was said to be that, as RS drove to the premises, RS could not have been less than 16 years of age because RS had a driver’s licence.

72. The applicant placed particular reliance upon the evidence I have extracted at [43], in which RS said that it was “possible” that the incident occurred as late as 1974. The effect of this evidence was said to be that as RS essentially “volunteered” that the Albert Road incident “could have been as late as 1974”, RS would have been 18 or 19 years of age. This evidence was said to be “the core of this appeal” because “RS was 18 at the time” (Tcpt, 12 August 2024, p 27(19)-(29)).

73. The applicant’s submission contains an assumption that, although not clearly articulated, should be stated. It is that, in substance, the evidence in connection with the two matters relied upon was all one way. In my view, as I will next explain, that assumption is unsound: the evidence was not uniformly demonstrative of each of these matters, as was argued.

74. I will deal first with the evidence about how RS travelled to the applicant’s residence at Albert Road, and thereafter the suggestion that RS “volunteered” that the Albert Road incident occurred “as late as 1974”.

75. RS’s evidence about how he travelled to the applicant’s residence in Albert Road was not confined to the evidence that the applicant relied upon. Rather, there was other evidence, which RS gave when he was cross-examined, that was not consistent with RS driving to the Albert Road residence. The point can be illustrated by the exchange which I have extracted above at [40].

76. In relation to the suggestion that RS in effect “volunteered” that the incident could have occurred in 1973 or 1974, and thus when he was 18 or 19 years of age, I am unable to accept that the witness volunteered these matters when cross-examined, as was submitted; nor, when cross-examined, did he unequivocally accept that this incident occurred at that time, again as was submitted. This is apparent from a consideration of the entire passage of the cross-examination of RS relied upon by the applicant. The relevant cross-examination has been extracted above, at [43].

77. Separately, the cross-examination of RS that covered when the Albert Road incident occurred needs to be understood against the background of the forensic context of the trial and, naturally enough, other evidence given about the timing of that incident. It is apparent that the evidence is far from uniform in the way the applicant argued, and to the extent it is, much of it tends to support the Albert Road incident occurring in 1971, as I will next explain.

78. During the cross-examination of RS, it was suggested that the Albert Road incident did not occur. But the cross-examination of RS had other purposes, one of which was to elicit evidence from RS that would throw some doubt upon, or otherwise undermine, LS’s evidence, particularly relating to counts 1 and 2. As earlier noted, the applicant sought to demonstrate that the evidence of LS in connection with counts 1 and 2 should not be accepted by the jury because it was, at a minimum, unreliable due to the fact that by 1971 the Lincoln family had moved to the Albert Road residence. Thus, although contesting that the Albert Road incident occurred, the applicant’s counsel set about demonstrating, through RS’s evidence, that the Lincoln family were residing in Strathfield in 1971 and not at the Burton Street, Concord premises (where counts 1 and 2 were alleged to have occurred). There are, therefore, multiple occasions when counsel for the applicant specifically put to RS that the Albert Road incident occurred in 1971. I have, earlier, set out parts of the cross-examination where either RS accepted, when it was put to him by counsel for the applicant, that this incident occurred in 1971 or the questioning of RS by counsel for the applicant assumed that date: see [39]-[42], above.

79. One passage, however, bears repeating because not only does it emphasise that, contrary to what was argued in this Court, the evidence about the timing of the Albert Road incident did not uniformly support its occurrence in either 1973 or 1974, but also because it emphasises the forensic context in which RS was cross-examined by counsel for the applicant essentially to establish that if the Albert Road incident occurred, then it occurred in 1971. The relevant exchange was essentially at the commencement of the cross-examination of RS by counsel for the applicant, and was as follows:

Q. The incident that occurred at Albert Road, Strathfield, it occurred in 1971; is that correct?

A. It was seven months – I think it was 72, I think it was.

80. Having given that evidence, and not being content with it, counsel for the applicant then went about establishing that the Albert Road incident occurred not in 1972, but in 1971. In order to do this, RS was provided with a copy of his police statement (MFI 20) and his attention was drawn to paragraph 19 – a paragraph that included the following: “I can clearly remember a time when I was 16 years old (1971) and I was at [the applicant’s] home in Albert Road, Strathfield…”. RS was then cross-examined further by counsel for the applicant:

Q. Do you remember on 20 April 2020, you provided a statement to Detective Senior Constable Basleigh.

A. Yes, that’s right.

Q. In that statement, and I’m reading from the statement, it appears that you said, “I can clearly remember a time when I was 16 years old (1971), and I was at [the applicant]’s home at Albert Road, Strathfield”. Does that help you?

A. 71, yeah that’s when I was over at [the applicant’s] place when that incident happened.

Q. That’s in 1971, sometime in 1971; is that right?

A. Yeah.

Q. As I understand your evidence today, you say that it was sometime during a weekend; is that right?

A. Yes.

Q. Do I also understand that you drove there?

A. That I’m not sure of. I don’t remember how I got there. I just can’t remember how. He could have given me a lift there. I just can’t remember.

81. Thus, the evidence was not, as the applicant argued, uniformly to the effect that RS had driven to the Albert Road premises on the day of the Albert Road incident, and that the incident occurred in 1973 or 1974 when RS was 18 or 19 years of age. Rather, there was a body of evidence, principally elicited during cross-examination, that established that the Albert Road incident occurred in 1971, and other evidence that RS had no recollection how he travelled to that location on the day of that incident.

82. There is a further difficulty with the applicant’s argument, in any event. That is because it runs contrary, in my view, to the manner in which the probative value of evidence is to be assessed – namely, that “the possible use to which the evidence might be put be taken at its highest” (TL at [28]) and on an assumption that the jury will accept the evidence: IMM at [49]-[54]; Bauer at [69]. The evidence, taken at its highest, established that the Albert Road incident occurred in 1971. The evidence, taken at its highest, was that RS could not remember how he travelled to the applicant’s residence on that day and if he was 16 years of age he could not have driven there.

83. The applicant sought to meet that difficulty by suggesting that the evidence given by RS was, upon proper analysis, “contradictory” and “inaccurate and demonstrably so”, with the result that the evidence did not have significant probative value. I do not accept that argument. Again, in my view, it runs contrary to the proper approach to the assessment of the probative value of evidence. It follows, from the assumption about the jury’s acceptance of the evidence, that no question as to the credibility or reliability of the evidence can arise because those matters are, as was said in IMM at [52], “both subsumed into the jury’s acceptance of the evidence”.

84. It may be accepted that the assumption about the reliability and credibility of evidence “will only be displaced where the evidence could not be accepted by a rational jury”: TL at [28]; IMM at [39]; Bauer at [69]. However, the variations in the evidence of RS about when the Albert Road incident occurred, and how he may have travelled there, are just that; they did not admit to the characterisation that the evidence “is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury”: IMM at [39]. Nor, in any event, do I accept that the evidence of RS was, as the applicant submitted, “contradictory” and “inaccurate and demonstrably so” in connection with how RS travelled to the Albert Road premises and in respect of his age at the time of the Albert Road incident. That is particularly where, although counsel for the applicant at trial submitted that at least aspects of RS’s evidence were unreliable, counsel for the applicant in his closing submissions to the jury in fact expressly relied upon parts of his evidence relating to that incident (notably the timing of it), so as to cast doubt upon the version that LS had given in respect of counts 1 and 2.

85. Finally, the applicant made a broad argument, during submissions in this Court, to the effect that there had not “been compliance with [section] 97A [of the Evidence Act] in terms of age”, which was later clarified to be a complaint that the evidence led “became more expansive and generalised as to age even in examination-in-chief, where there was a movement towards the tendency incident happening in 1972” (Tcpt, 12 August 2024, p 39(7)-(30)). This submission, which was not altogether clear and was not contained within the applicant’s written submissions, appeared to be advanced in aid of the principal argument relating to the admissibility of the Albert Road incident evidence. In my view, this argument is no different from the substantive one advanced in support of ground 1 – namely, that RS was 18 years of age at the time of the Albert Road incident, and thus his evidence about it was not admissible to establish the tendencies asserted.

86. As I have earlier noted (see [65], above), the applicant did not suggest that, but for the alleged errors in the way argued, the evidence from RS did not have significant probative value. Given that approach, I am satisfied it did, particularly given the statutory presumption created by s 97A(2) of the Evidence Act (a presumption that was not rebutted). The probative value of the evidence was not outweighed by the danger of unfair prejudice (s 101(2) of the Evidence Act) and, again, the applicant did not suggest otherwise. The evidence from RS about the Albert Road incident was admissible under s 97 of the Evidence Act.

87. I would, therefore, reject ground 1. Thus, even assuming (favourably to the applicant) a question of law arose, the answer to that question, and any consequential questions that follow from its resolution, must all be resolved adversely to the applicant. Given the tendency evidence was correctly admitted, and there was no separate challenge to the form of the tendency direction given by the trial judge, ground 3 should also be rejected.

Ground 2: the evidence from LS, GS and RS about the Albert Road incident resulted in a substantial miscarriage of justice

88. By this ground of appeal, the applicant argues that a substantial miscarriage of justice arose by the wrongful admission of the evidence from RS about the Albert Road incident, and that the admission of evidence from LS and GS “about” the Albert Road incident was also wrongly admitted and also caused a substantial miscarriage of justice: the applicant argued that the admission of evidence from LS and GS on that issue “compounded and aggravated” the wrongful admission of RS’s evidence about the Albert Road incident (applicant’s submissions at [36]-[38], [49]).

89. The evidence from LS and GS about the Albert Road incident was elicited during their cross-examination by counsel for the applicant. This evidence has been earlier set out (see [46]-[48], above).

90. As I have earlier noted, like ground 3, this ground was a corollary to ground 1: that is, the above evidence “compounded and aggravated” the erroneous admission of RS’s evidence about the Albert Road incident. Given the conclusion that I have reached in relation to ground 1 (and 3), and there was no separate basis upon which the admission of this evidence was challenged, this ground must also be dismissed. The admission of the evidence from LS and GS did not cause any miscarriage of justice, as was argued.

Rule 4.15 of the Supreme Court (Criminal Appeal) Rules and Orders

91. As I have earlier noted, the applicant conceded that r 4.15 applied to appeal grounds 1 and 3 (see [13], above). In my view, although the applicant did not concede that r 4.15 applied to ground 2, given it was a corollary to ground 1 and itself relates to the admission of the tendency evidence, I consider that leave is also required to raise that ground of appeal (irrespective of whether the ground itself raises a question of law alone, or otherwise).

The evidence read on the appeal

92. The applicant relied upon three affidavits to support a grant of leave under r 4.15: an affidavit from his current solicitor; an affidavit from his former solicitor; and an affidavit from counsel who appeared at trial.

93. The Court received those affidavits, over objection from the Crown, in support of the grant of leave. The Court indicated that it would deal with the admission of that evidence in its reasons.

94. The Crown cross-examined the applicant’s former solicitor and trial counsel.

95. The applicant ultimately submitted that the evidence from each of them established that “they both missed the [tendency] point” that the applicant raises by the three grounds in the notice of appeal (Tcpt, 12 August 2024, p 3(14)-(21)). The Crown contested this, submitting that no “point” of that kind was missed by the applicant’s trial counsel and solicitor.

Discussion and proposed orders

96. In my view, the evidence should be admitted. However, contrary to what the applicant submitted, I do not accept that the applicant’s trial counsel or solicitor missed any “point” about the tendency evidence in connection with the Albert Road incident. The assumption within the applicant’s submission, in support of leave, was that the tendency evidence in relation to that incident was erroneously admitted because, in short, RS was over 18 years at the time of its occurrence. For the reasons I have given when dealing with each of the grounds relating to the admission of that evidence, that assumption is unsound: the evidence was admissible, in my view.

97. The authorities support the view that, when addressing the question of leave, “a significant, if not dispositive, consideration will be the possibility that the applicant has lost a real chance of acquittal, [and therefore] it is necessary to address the merits of the ground”: Golding v R [2024] NSWCCA 129 at [50]. That is the approach I have taken, by addressing each of the grounds of appeal. That analysis satisfies me that no errors of the kind alleged by the applicant have arisen.

98. It follows that leave should be refused given no miscarriage of justice has arisen “such that the [applicant] has lost a real chance of acquittal”, nor has a “necessary element of a fair trial according to law [been] overlooked”: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]-[25].

99. Accordingly, I propose that the applicant be refused leave to appeal his conviction.

The sentence appeal

Introduction

100. The applicant argues that the trial judge made two errors when sentencing him, and seeks leave to appeal against the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act. The first ground alleges that the trial judge erred in failing to explain why the emotional harm caused to LS in connection with counts 1 and 4 “was substantial in each case” (ground 4). The second ground alleges that the sentence was manifestly excessive (ground 5).

101. Before dealing with the grounds raised by the applicant, I will outline the key findings made by the trial judge when sentencing the applicant.

102. The references to the paragraphs in the sentencing judgment are expressed as J[1] etc.

The sentencing judgment

103. The trial judge sentenced the applicant following the jury verdicts for counts 1, 4 and 6.

104. Count 1 occurred in the applicant’s family home when LS was 9 years of age and the applicant was “18 to 19 years of age”, and involved the applicant pressing his penis into LS’s mouth “for approximately ten minutes, during which he had his hands on her head and shoulder and was pressing her head onto his penis so that it choked her”, following which the applicant ejaculated into her mouth (J[6]).

105. The trial judge found the offending was “objectively serious” and that, given the age difference, “the coercion involved, the use of physical force and the fact that the [applicant] ejaculated into the victim’s mouth”, the objective seriousness of the offence was in the “high range” (J[72]). The sentencing judge also found that there were a number of aggravating factors to be taken into account when sentencing for this offending pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) – namely, that the offending occurred within the home of the applicant “where the victim should have expected to be able to feel safe”; the offending resulted in substantial emotional harm to LS, with the trial judge finding “beyond reasonable doubt that the harm suffered was beyond what would ordinarily be expected as a result of this offence” (a finding that is challenged by the applicant – as ground 4); and that LS was “very young and vulnerable as a result” (J[73]).

106. Count 4 occurred when LS was “13 years of age, when the [applicant] came to her home” (J[8]). The trial judge described the offending as follows (J[8]-[9]):

[8] …There was no one else home and the [applicant] took her to her parents’ bedroom and flung her onto the bed. He closed the bedroom door and moved a dressing table towards the doors so that no one could enter. The victim was screaming “Please, not on my mother and father’s bed. Anywhere else, but not here, please.” The [applicant] said, “No, it’s gonna happen, it’s gonna happen here and now” and then started to have penile to vagina sexual intercourse.

[9] The victim was frantic and screaming, and a neighbour knocked on the door whilst this was happening. The [applicant] put a pillow over the victim’s head and pressed it down so no one could hear her screaming. The neighbour went away and the [applicant] continued to have sexual intercourse while LS struggled under the full force of his body. He ejaculated inside the victim.

107. The trial judge found that the objective seriousness of the offending “fell within the mid-range of objective seriousness for an offence pursuant to s 63 of the Crimes Act, and towards the upper end of the mid-range” (J[74]). The trial judge also found that there were a number of aggravating factors to be taken into account when sentencing for this offending pursuant to s 21A(2) of the CSP Act – namely, that the offending involved “actual physical violence involving LS being flung onto her parents [bed] and the forceful use by the [applicant] of the pillow over her head” as well as LS struggling and clearly “protesting”; the offence was committed in the S family home “where she was entitled to feel safe and secure” and the fact that the “rape occurred in her parent’s bedroom behind a door secured by the [applicant] devastated LS and further aggravated the offending”; the emotional harm caused by the offence was “substantial”, as LS was “frantic during the violent and forceful offending and distressed by its location” (a finding that is challenged by the applicant – as ground 4); and LS was “13 years of age and vulnerable as a result” (J[75]).

108. Count 6 involved GS, and occurred when he was 12 years of age. The offending occurred in the cubby house in the backyard of the S family home. The trial judge described the offending as follows (J[10]-[11]):

[10] …The [applicant] had asked to be shown the cubby house and when they went in, he put his arm around GS with quite a strong grip and held him very tight. He then put his hand down his pants inside his underwear and was fondling GS’ penis and testicles.

[11] The [applicant] said to GS words to the effect of, “You know, like you’re going to enjoy this” and “there’s nothing wrong with this, it’s purely healthy.” The [applicant] fondled GS’ genitals for a couple of minutes, in a rigorous way, following which the [applicant] said to GS “don’t tell anyone about this”.

109. The trial judge found that this offending “fell in the low range” and “in the middle of the low range” (J[77]). The trial judge also found that there were a number of aggravating factors to be taken into account when sentencing for this offending pursuant to s 21A(2) of the CSP Act – namely, that the offending occurred “in the sanctity of the family home within the cubby house” and that GS was “vulnerable being only 13 years of age” (J[77]).

110. The trial judge took into account “the relative youth of the [applicant] at the time of this offending” but balanced this finding “against the very serious nature of the offending” (J[78]). The trial judge also had regard to the fact that the applicant “was a person of good character who had no criminal convictions at the time of the offending” (J[80]) and also accepted that “for a period of nearly 50 years since the offending the [applicant] has led an exemplary life” (J[82]). The applicant was 70 years of age at the time he was sentenced, having been born on 15 March 1953.

111. The sentencing judge also made the following findings: that “the delay in sentencing for a period of over 50 years is non-mitigatory”, giving detailed reasons for that finding including that the delay in complaint “was consistent with the threatening and intimidating behaviour of the [applicant] in ensuring the victims would remain silent” (J[83]); that the offending in respect of each count “was largely opportunistic” (J[85]); and that the applicant has “good prospects of rehabilitation and a low risk of recidivism” (J[86]).

112. The trial judge considered that general deterrence was “important in sentencing for child sexual offending” and that “the sexual penetration of a child must be considered more serious than an adult”, later noting that “Parliament has prescribed lengthy periods of imprisonment as maximum penalties for child sex offending” (J[87]). Further, the trial judge noted that it was conceded by the applicant’s counsel that the applicant “must have known in relation to Count 4 that at the time of the offence…LS did not consent to it” (J[87]). The trial judge considered that specific deterrence was of “diminished importance here, given the age of the [applicant] and his lengthy period of rehabilitation since the offending took place” (J[87]).

113. The trial judge noted that the maximum penalty for count 1 was 5 years imprisonment; for count 4, was life imprisonment; and for count 6, was 5 years imprisonment, and that there was no standard non-parole period prescribed for any of the offences (J[88]). The trial judge took these penalties into account “as guideposts in the sentencing process”, as well as taking into account “sentencing patterns for similar sexual offending” where that could be discerned (J[88]).

114. The trial judge took the “significant subjective factors” into account but, citing Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233 at [14], was mindful that “such subjective factors must not allow inadequate weight to be given to the objective gravity of the offending in the sentencing synthesis” (J[89]).

115. The trial judge noted that he proposed to proceed by way of an aggregate sentence pursuant to s 53A of the CSP Act, and indicated the following sentences for each count: count 1 – 3 years imprisonment; count 4 – 8 years and 6 months imprisonment; and count 6 – 12 months imprisonment (J[90]).

116. The trial judge then gave consideration to the principles of totality and proportionality when determining the aggregate sentence to be imposed (J[91]-[92]).

117. In relation to special circumstances, the trial judge noted that there was “no dispute that a finding of special circumstances is available given that this is the [applicant’s] first time in custody, there has been some accumulation in sentence and because the COVID-19 pandemic has made conditions of custody more onerous”, and therefore found “special circumstances are established pursuant to s 44(2B)” of the CSP Act (J[93]).

118. The trial judge imposed an aggregate sentence of 10 years imprisonment, with a non-parole period of 6 years imprisonment to commence on 18 August 2022 and to expire on 17 August 2028 (J[94]).

Ground 4: the challenge to the reasons of the trial judge in connection with the finding of substantial emotional harm

Introduction

119. By this ground of appeal, the applicant argued that the trial judge failed to give reasons that identified the substantial emotional harm caused to LS in connection with counts 1 and 4 and the findings to that effect “were without sufficient basis”. However, during the course of submissions, the applicant accepted that there was “material open to make the finding” but, nevertheless, argued that the reasons remained legally insufficient (Tcpt, 12 August 2024, p 50(17)-(22)).

120. In my view, given the context (explained below), the reasons of the trial judge sufficiently, and without error, explained the finding of substantial emotional harm.

The sentencing hearing and judgment

121. It is important to give context to the applicant’s challenge in connection with “substantial harm”. Before the trial judge, the Crown argued that there were a number of aggravating factors to the offending for counts 1 and 4, including that the emotional harm “caused by the offence was substantial”: s 21A(2)(g) of the CSP Act. The Crown relied upon what was contained within the victim impact statement from LS to support a finding in the terms sought.

122. Relevantly here, and no doubt informing the concession made in this Court during oral submissions that there was “material open to make the finding”, before the trial judge, counsel appearing for the applicant made the following submission in connection with whether the emotional harm to LS caused by the offending was substantial (Tcpt, 3 February 2023, p 13(24)-14(2)):

We are unable to dissect substantial emotional harm in relation to the offences against [LS]…but we accept that at the least your Honour would find that there was a degree of substantial harm as the cases have recognised much of what the lady said in her victim’s impact statement…

…

You will find substantial harm…

123. This last concession was expressly recorded by the trial judge in his reasons, where his Honour noted that the applicant accepted the Court “would however find substantial harm” (J[55]).

124. The trial judge acted upon that concession and found “substantial harm”:

1. In the course of making a number of findings about aggravating factors for count 1, the trial judge found that (J[73](2)):

the offending resulted in substantial emotional harm to LS as confirmed in her VIS. I find beyond reasonable doubt that the harm suffered was beyond what would ordinarily be expected as a result of this offence.

2. In the course of making a number of findings about aggravating factors for count 4, the trial judge found that (J[75](3)):

I accept the emotional harm caused by the offence was substantial. The victim was frantic during the violent and forceful offending and distressed by its location.

Discussion and consideration

125. As earlier noted, the error raised by this ground of appeal was narrowed during the course of submissions to a complaint about the sufficiency of the trial judge’s reasons, it being accepted that there was evidence available to support the findings made.

126. The nature and content of the reasons required in a given case turns upon the particular circumstances and the matters in issue. Although made in a different context, the remarks of Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [48] remain apposite: “[n]o mechanical formula can be given for determining what constitutes sufficient reasons, but it is particularly important that a complaint that they are inadequate be assessed against the circumstances of the particular case”. Importantly, the circumstances here include the fact that, before the trial judge, the applicant expressly conceded that a finding of substantial harm would be made based upon the victim impact statement of LS. The applicant’s submissions did not address the significance of that concession nor, in fact, was it referred to. The Crown, however, relied upon the concession, essentially submitting that the reasons of the trial judge were in those circumstances sufficient (Crown submissions at [122]).

127. Given the finding made by the trial judge mirrored the concession, and that it was accepted in this Court that there was evidence available to support that finding, I am unable to accept, as the applicant submitted, that the minimum level of judicial reasons has not been attained. On the contrary, the very purpose of a party making a concession is to permit not only an opposing party to proceed on that basis, but the Court as well. In my view, it would be incongruous to say the least if, the trial judge having noted a concession was made and having made a corresponding finding, the minimum acceptable level of judicial reasons required more than what occurred here. In my view, it did not.

128. I would, for these reasons, dismiss this ground of appeal.

Ground 5: manifest excess

Introduction

129. By this ground of appeal, the applicant argued that the aggregate sentence, and the non-parole period imposed, were each manifestly excessive.

130. The manifestly excessive aggregate sentence was said to be evident when regard was had to other sentencing decisions: the applicant argued, in effect, that other sentencing cases with “markedly similar objective seriousness” resulted in lower sentences being imposed and, further, cases involving “greater total criminality have been met with less severe sentences” (applicant’s submissions at [104]). The applicant also argued that the manifestly excessive sentence “appears to have stemmed from the formulation of an indicative sentence of 8 years and 6 months for Count 4” (applicant’s submissions at [105]).

131. The manifestly excessive non-parole period was said to be evident from the other sentencing cases relied upon as well as a number of “principles” that were argued to exist and inform the fixing of the non-parole period in historic child sexual assault cases (applicant’s submissions at [150]-[154]).

132. For the reasons that follow, I am unable to accept these submissions. In my view, neither the sentence, nor the non-parole period fixed, were manifestly excessive as argued.

Manifest excess: the principles

133. The relevant principles that apply to a ground of appeal directed to what is argued to be a manifestly excessive sentence were summarised in Geraghty at [94]-[95], as follows (citations omitted):

[94] As explained in Dinsdale v The Queen, manifest excess is a conclusion that “does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification”. The ultimate question, determinative of whether a sentence is manifestly excessive, is whether the sentence is “unreasonable or plainly unjust”, this being the language of the second category of error formulated in House v The King. In this category of appeal, the specific error is not shown in the reasons of the sentencing court, but it may be inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”.

[95] Where an appeal raises a ground that the sentence imposed is manifestly excessive, the following principles are relevant. First, “judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Markarian at [27]. Secondly, as “sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’”, so that “there will be a range of possible sentences that could be imposed without error”. Thirdly, it is for the appellant to demonstrate that there is a disproportion manifest on the face of the sentence “so as to be indicative of substantive error”. Fourthly, an alleged error as to the weight to be given to particular factors does not enliven any “of the forms of error identified in House v [T]he King other than the last category”.

134. I turn now to address the applicant’s arguments.

Discussion and consideration: the aggregate sentence

135. The applicant argued that the aggregate sentence imposed was manifestly excessive and sought to establish this by a comparative analysis involving six sentencing decisions – four from this Court, and two from the District Court. In furtherance of that argument, the applicant submitted that the manifestly excessive sentence imposed could be demonstrated in two ways: first, because the sentence imposed was “so different to sentences imposed in other cases featuring offending of markedly similar objective seriousness” that latent error should be inferred; and, secondly, because the sentence imposed could be contrasted to other sentences imposed in cases involving serial “offending of greater total criminality [that] have been met with less severe sentences” (applicant’s submissions at [104]).

135. The applicant also submitted that the aggregate sentence imposed “was in the order of 2-3 years longer than warranted in light of all the objective and subjective circumstances” and that some indication of where the error may reside was in what the applicant argued was the “excessive term” of the indicative sentence, being 8 years and 6 months, for count 4 – this being the offence that the applicant raped LS between 2 May 1975 and 3 May 1976 when she was 13 years of age, contrary to s 63 of the Crimes Act.

136. It is appropriate to deal first with the argument directed to the indicative sentence for count 4 before dealing with whether, having regard to the comparative analysis of the sentencing decisions relied upon by the applicant, it should be inferred that there is latent error in the sentence. The explanation for that approach lies in the fact that demonstration of (patent) error may serve to explain why the sentence is excessive: R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 at [46]; Taitoko v R [2020] NSWCCA 43 at [64].

The indicative sentence for count 4

138. The applicant’s submission was that the indicative term for count 4 resulted in the manifestly excessive aggregate sentence imposed and sought to demonstrate this by reliance upon the sentencing outcomes in other decisions.

139. Before dealing with this argument, it should be noted that, although an appeal does not lie against an individual indicative sentence, but is against the aggregate sentence (JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] (‘JM’)), it is accepted that, particularly given the “function performed by the indicative sentences is to set out the reasoning behind the aggregate sentence”, an indicative sentence may be suggestive of error in the assessment of the aggregate sentence: Kresovic v R [2018] NSWCCA 37 at [42]; JM at [40]. Nevertheless, even if an indicative sentence is considered excessive, that is not determinative as the ultimate question remains “whether [or not] the aggregate sentence reflects the totality of the criminality involved”: JM at [40]; Kerr v R [2016] NSWCCA 218 at [114]; Kirby v R [2021] NSWCCA 162 at [45].

140. In my view, there are significant limitations in undertaking the exercise proposed by the applicant and, to the extent it demonstrated anything, it was that the indicative sentence for count 4 was consistent with indicative sentences imposed for similar offending in other decisions and was not otherwise erroneous. My reasons for so concluding are as follows.

141. First, although it may be accepted there are some general similarities between the facts of, and the offending involved in, the decisions relied on by the applicant, there are significant differences. Put simply, many – perhaps most – of the decisions relied upon were insufficiently comparable or like the present matter. This can be demonstrated by reference to two of the decisions, being Kelly v R [2021] NSWCCA 154 (‘Kelly’) and Boatswain v R [2019] NSWCCA 238 (‘Boatswain’), that the applicant argued could be used to demonstrate the error in connection with the indicative sentence, and the manifestly excessive sentence more generally. Yet, despite arguing they were like cases, neither of the decisions relied upon concerned the sexual offending that was the subject of count 4, nor did they involve sexual offending that carried a maximum penalty of life imprisonment. The maximum penalty available for the sexual offending in Kelly was 6 years imprisonment (Kelly at [4]) and the maximum penalty available for the sexual offending in Boatswain was 12 years (Boatswain at [4]).

142. Secondly, the usefulness of the exercise was limited by the fact that some of the sentencing decisions relied upon by the applicant contained no detailed reference to important factual findings of the sentencing judge. Thus, in Boatswain, and putting to one side that the offending was not comparable with the present case, there was limited reference to the findings made by the sentencing judge as to the objective seriousness of the offending across the multiple counts – the sentencing judge was noted to have agreed with the Crown’s submission that the offences “were serious” (Boatswain at [38]). The absence of any detailed reference to those findings denies its utility in this comparative exercise.

143. Thirdly, to the extent that, in my view, some limited comparison could usefully be undertaken in relation to some of the decisions relied upon, that tended to confirm that the indicative sentence in the present case was consistent with the indicative sentences in those decisions. Thus, in Greenaway v R [2021] NSWCCA 253 (‘Greenaway’), the offender committed what was described as “non-sexual physical assaults and…sexual assaults” upon young female inmates whilst he was an officer in the NSW juvenile justice system (Greenaway at [2]). The offender was convicted of five counts of rape, contrary to s 63 of the Crimes Act (counts 21, 24, 25, 26 and 28). The maximum penalty available for that offence was penal servitude for life. The sentencing judge imposed an aggregate sentence, and indicated sentences of 10 years (for counts 21, 25, 26 and 28) or 11 years (for count 24) (Greenaway at [101]). The offender did not complain of the excessiveness of those indicative sentences on appeal (Greenaway at [109]). There was, given the confined nature of the grounds of appeal that were raised, limited reference to the facts underlying the offending across these counts but they were summarised, and each of them involved penile/vaginal penetration (Greenaway at [12]).

144. The consistency of the indicative sentence for count 4 with sentences indicated in similar cases may also be illustrated by reference to the decision in Franklin v R [2019] NSWCCA 325 (‘Franklin’), another sentencing decision relied upon by the applicant. In that case, the offender pleaded guilty to two counts of rape involving his sister (counts 3 and 4), contrary to s 63 of the Crimes Act. For count 3, the victim was 14 or 15 years old; the offender was aged between 22 and 24 years of age; and the offending involved penile/vaginal intercourse that the sentencing judge described as “characterised by brutality and depravity” (Franklin at [21]-[24]; [47]). The sentencing judge found the objective seriousness of count 3 to be “towards the top of the range of rape” (Franklin at [47]). For this count, the indicative sentence, taking into account the Form 1 offences, was imprisonment for 14 years (Franklin at [6]). For count 4, the victim was 17 years of age; the offender was 26 years of age; and the offending also involved penile/vaginal intercourse. The sentencing judge found the offending involved in count 4 to be “above the mid-range of seriousness” (Franklin at [25]-[26]; [47]). For this count, the indicative sentence was imprisonment for 10 years (Franklin at [6]).

145. Here, the applicant was sentenced for the rape of a child, who was then aged 13 years, in violent circumstances, and where the offence was aggravated in the manner described by the trial judge (see [106]-[107], above). In my view, there is no substance to the suggestion that the indicative sentence for count 4 was in any way erroneous when considered on its own or by reference to the other sentencing decisions relied upon by the applicant and, in consequence, resulted in a manifestly excessive aggregate sentence.

The comparative analysis: other sentencing decisions

146. Before dealing with the substance of the applicant’s submissions that the aggregate sentence was manifestly excessive when regard was had to a number of other sentencing decisions, it is important to emphasise three matters relevant to the argument advanced.

147. First, whilst consistency of sentencing is promoted by the proper and careful use of comparative sentencing, what is sought to be derived is consistency in the application of legal principle, rather than mathematical equivalence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] (‘Hili’). To this end, it has been said that the range of sentences that have been fixed does not fix “the boundaries within which future judges must, or even ought, to sentence”: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304]; Hili at [54]; Rahman v R [2020] NSWCCA 13 at [29] (‘Rahman’).  

148. Secondly, a conclusion of manifest excess is not “justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (‘Wong’). That this is so reflects (at least) a number of the principles earlier referred to in Geraghty at [95], including the principle that as sentencing “is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’” (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]), so that “there will be a range of possible sentences that could be imposed without error”: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].

149. Thirdly, when reviewing other sentencing decisions of this Court, it is important to understand the context given different principles apply depending upon whether, by way of example, the appeal involved a ground alleging manifest excess or inadequacy or whether the appeal involved this Court resentencing the offender: Rahman at [29].

150. The applicant’s essential submission was that, when regard is had to the other sentencing decisions, this Court should infer that the aggregate sentence was manifestly excessive: the aggregate sentence “did not reflect the totality of the criminality of the offending in Counts 1, 4 and 6”, a matter that could be illustrated by comparison to cases where offending of “markedly similar objective seriousness” or even “greater total criminality” received less severe sentences than what was imposed by the trial judge (applicant’s submissions at [103]-[104]).

151. By the principle of totality, a sentencing court, when sentencing for a series of offences and imposing an aggregate sentence, must assess whether the aggregate is just and appropriate having regard to the totality of the criminality: R v Holder [1983] 3 NSWLR 245, 260; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[12]. The principle of totality, which determines whether sentences should be imposed concurrently or consecutively, requires an assessment of whether the “sentence for one offence [can] comprehend and reflect the criminality for the other offence”: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] (‘Cahyadi’).

152. The trial judge referred to this principle, and it is evident in the aggregate sentence that was imposed that he applied it (J[90]-[91], referred to in [115]-[116], above). Further, it is also evident from the aggregate sentence imposed that there was a degree of accumulation, with the trial judge giving the following reasons for why greater concurrence was not appropriate (J[92]):

Having regard to the fact that there were two victims, and the three offences took place over a period of between three and four years, there must be some accumulation in sentence so as to reflect the totality of the criminality involved.

153. That approach is entirely consistent with authority and the principle of totality in particular. That is, where the offences are separate and distinct, then it is more likely that the sentence for one offence “cannot comprehend the criminality of the other” with the consequence that sentences should be “at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences”: Cahyadi at [27] (which was, it should be emphasised, cited by the trial judge).

154. The approach of the trial judge was plainly open, in my view. The aggregate sentence is within the range of sentences that reflect “the totality of [the] criminality involved”: Aryal v R [2021] NSWCCA 2 at [50], citing JM at [40]. There is nothing in the reasons of the trial judge, nor the outcome itself, suggestive of (or capable of supporting an inference of) unexplained but definite error.

155. The position is not otherwise when regard is had to the other sentencing decisions relied upon by the applicant. This can be illustrated by reference to two decisions: first, the decision in Kelly – a decision that the applicant submitted was demonstrative that the aggregate sentence “in the current case was plainly unjust and unreasonable, as the total criminality in Kelly was significantly greater and the head sentence and no[n]-parole period significantly less” (applicant’s submissions at [108]); secondly, the decision in Franklin – a decision that the applicant submitted provided “a powerful basis for a finding that the sentence [imposed by the trial judge] was ‘plainly unjust’ and ‘manifestly wrong’” (applicant’s submissions at [125]).

156. In my view, the decision in Kelly provides no useful assistance to the applicant. That is not simply because the offending was different (as I have earlier explained: see [141], above) but also because there was no question in the appeal to this Court about the trial judge’s application of the principle of totality. Thus, the simple fact that, in another sentencing decision, a sentencing judge allowed for greater concurrency when fixing the aggregate sentence is not a permissible basis upon which to compare the aggregate sentence in the present case: all that is demonstrated, at best, is there is a mathematical difference between one decision and the present.

157. Further, the decision in Franklin provides no useful assistance to the applicant, in my view. It is true that the aggregate sentence imposed in that case (which was 17 years imprisonment) was for two counts of rape and other sexual offending (the sentences indicated for the other sexual offending, being counts 1 and 2, were for 3 years and 2 years and 6 months, respectively: Franklin at [6]). But, as with the decision in Kelly, this case merely illustrates a mathematical difference between the sentencing judge’s application of the principle of totality in that case, and the trial judge’s application of that principle in the present one. Intervention by this Court is not justified because there is a difference, nor is it justified because the sentence is markedly different, from sentences imposed in other cases: Wong at [58]; Hili at [54].

The non-parole period

Introduction

158. The applicant also argued that the non-parole period fixed was manifestly excessive: the aggregate sentence was 10 years imprisonment with a non-parole period of 6 years imprisonment (J[94]).

159. The trial judge found special circumstances under s 44(2B) of the CSP Act, in part based upon a concession made by the Crown that it was open to make such a finding, and reduced the standard ratio to 60% – reflected in the non-parole period of 6 years imprisonment (J[93]). Specifically, the trial judge based the finding of special circumstances upon the fact that “this is the [applicant’s] first time in custody, there has been some accumulation in sentence and because the COVID-19 pandemic has made conditions of custody more onerous…” (J[93]).

160. It should be noted that the approach of the parties, in this Court and before the trial judge, was that, consistent with the decision in R v Cattell [2019] NSWCCA 297; (2019) 280 A Crim R 502 at [122](f), the non-parole period is set by applying s 44 of the CSP Act as it operated at the time of sentencing.

Discussion and consideration: the non-parole period was not manifestly excessive

161. The applicant argued that the non-parole period fixed was manifestly excessive – “in the order of 1-2 years longer than warranted” (applicant’s submissions at [105]). The applicant argued that the manifestly excessive non-parole period was evident based upon a comparison to the non-parole period fixed in the sentencing decisions relied upon, as well as what was argued to be a “unifying principle that increases the vital importance of the non-parole period” in historic cases of child sexual assault and, by implication, provides a basis to vary the statutory ratio in s 44 of the CSP Act in those cases (applicant’s submissions at [149]-[154]).

162. I do not accept these arguments, for the following reasons.

163. First, as explained in connection with the applicant’s complaints about the excessive indicative and aggregate sentences, merely because there is a mathematical difference between the non-parole period fixed in the present case, when compared to others, does not, in and of itself, provide a basis on which to infer and conclude that the non-parole period was manifestly excessive, as the applicant’s argument assumed. Having made a factual finding that special circumstances exist, the degree to which there is an adjustment to the statutory ratio is a matter for the discretion of the sentencing judge. That is, having found the circumstances are sufficiently “special” to warrant a variation in the statutory ratio, a sentencing judge is required to exercise their discretionary judgment to determine the degree of the variation. That there are differences in the adjustments made to the statutory ratio from case-to-case is itself unremarkable, and simply reflects the fact that there can, and will be, a “wide variation in the range of legitimate opinion in the formulation of a discretionary judgment”: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [53] (‘Simpson’); R v Cramp [2004] NSWCCA 264 at [31]; Caristo v R [2011] NSWCCA 7 at [28]-[31].

164. Secondly, even if the comparative analysis of the findings of special circumstances is undertaken, it provides no basis, in my view, to infer that the trial judge’s discretionary judgment miscarried. This can be simply illustrated by reference to one of the decisions relied upon, Boatswain. In that case, the sentencing judge found special circumstances by reason of the offender’s physical impairment arising from a stroke and, having made that finding, varied the statutory ratio to 67%: Boatswain at [43] and [53]. Quite why the variation made in that case was said to inform latent error in the trial judge’s discretionary judgment was not identified in the applicant’s argument. In my view, when all is said and done, the argument for the applicant was no more than an argument that because other cases resulted in different variations to the statutory ratio than the present one, this Court should intervene. That argument must be rejected, at a minimum because absent error, the sentencing discretion is vested in the trial judge, not this Court.

165. Thirdly, the term “special circumstances”, in the sentencing context in which it appears, emphasises that the non-parole period is to be determined by what the “sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought [to] be the minimum period of actual incarceration”: Simpson at [59]. That was the approach of the trial judge in this case. In my view, there is no basis to infer that the variation to the statutory ratio miscarried in some unspecified way. Rather, I consider that the adjustment to that ratio was well within the range of “legitimate opinion”.

166. Fourthly, the applicant advanced a somewhat novel argument that offenders in historic child sexual assault offences “are commonly sentenced in their early to mid seventies or their mid to late sixties” and are “often deemed to be at a low risk of re-offending because they are no longer sexually functioning physiologically”, and the “low level of recidivism” in these cases, so it was argued, meant that “there are very few examples of breaches of parole through the commission of further child sex offences” (applicant’s submissions at [152]-[153]). The applicant went on to argue that the “vast majority of these offenders will either not breach their parole and many will not live or live an independent life out of care to the end of their parole period due to age or ill-health” (applicant’s submissions at [154]). The combination of these matters was said to result in a “unifying principle that increases the vital importance of the non-parole period” in historic child sexual assault cases.

161. Putting to one side that these submissions were not advanced before the trial judge (which is of itself disentitling: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]), no authority was advanced to support them. I do not accept that there are “principles” of this kind that mandate their application by sentencing judges when sentencing for historic child sexual offending, nor do I consider that (assuming their existence) an inference of error should be drawn in relation to the finding of special circumstances based upon those “principles”, as the applicant submitted.

162. In my view, there is no basis to infer that the trial judge made an unspecified, but definite, error when fixing the non-parole period resulting in a manifestly excessive non-parole period.

Conclusion: the sentence was not manifestly excessive

169. The sentencing judgment was detailed and comprehensive. The trial judge correctly directed himself to, and applied, the relevant statutory provisions and had regard to the maximum penalty, the objective seriousness of the offending as well as the various subjective matters advanced on behalf of the applicant. As a matter of impression, and having assessed the sentence within the sentencing framework identified, the aggregate sentence fixed was not, I consider, outside the range reasonably available to the trial judge and nor was the non-parole period. Nor was error otherwise to be inferred from the result. Given the nature of the offending, a significant total term and non-parole period were called for, and appropriately imposed. Neither the aggregate sentence imposed, nor the non-parole period, were plainly unjust or unreasonable or manifestly excessive.

Orders

170. For the above reasons, I propose the following orders:

1. Refuse leave to the applicant to appeal against his conviction.

2. Grant leave to the applicant to appeal against the sentence imposed on 24 March 2023.

3. Dismiss the appeal against the sentence.

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Endnotes

Decision last updated: 24 July 2025