Manojlovic v R; R v Manojlovic - [2020] NSWCCA 315

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
Hearing dates: 4 September 2020;
25 September 2020
Decision date: 02 December 2020
Before: Hoeben CJ at CL at [1],
Button J at [160]
N Adams J at [162]
Decision:
CONVICTION:
(1) Leave to appeal against conviction is granted.
(2) The appeal against conviction is dismissed.
SENTENCE:
(1) The appeal is allowed.
(2) The sentence imposed on the respondent by Williams SC DCJ on 9 April 2020 is quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of imprisonment of 5 years, 6 months to commence on 10 February 2020 with a non-parole period of 3 years to expire on 9 February 2023.
(4) Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:
Count 1: 20 months with a non-parole period of 12 months.
Count 2: 2 years with a non-parole period of 15 months.
Count 3: 2 years and 6 months with a non-parole period of 22 months.
Count 5: 3 years with a non-parole period of 2 years.
Count 7: 3 years and 6 months with a non-parole period of 2 years and 6 months.

Catchwords:
CRIMINAL LAW – conviction appeal – two counts of aggravated indecent assault, three counts of aggravated sexual intercourse without consent – circumstance of aggravation being “under authority” – conviction after trial by jury – victim school pupil – offender school teacher – whether verdicts of guilty were unreasonable and cannot be supported having regard to the evidence – credit and reliability of victim challenged – whether it was open to the jury to be satisfied beyond reasonable doubt that offender was guilty – leave to appeal against conviction granted – appeal against conviction dismissed – CRIMINAL LAW – appeal against sentence - Crown appeal - assessment of objective seriousness - respondent's knowledge of lack of consent - knowledge rather than recklessness - characterisation of objective seriousness as “towards the low end of the range” - whether sentence manifestly inadequate

Legislation Cited:
Crimes Act 1900 (NSW) – ss 61J(1), 61M(1), s 73(2), 578A
Criminal Appeal Act 1912 (NSW) – s 5(1)(b)
Criminal Procedure Act1986 (NSW) – s 294
Evidence Act 1995 (NSW) – s 44

Cases Cited:
Antouny v R [2020] NSWCCA 203
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 300
Gibson v Regina [2019] NSWCCA 221
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131
Harkinv R [2020] NSWCCA 242
Hawi v R [2014] NSWCCA 83
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
KSC v R [2012] NSWCCA 179
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Maughan v R [2020] NSWCCA 51
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mulato v R [2006] NSWCCA 282
Neto v R [2020] NSWCCA 128
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
R v Kitchener (1993) 29 NSWLR 696
R v Manojlovic [2020] NSWDC 221
R v Ralston [2020] ACTCA 47
R v Tolmie (1995) 37 NSWLR 660
Refaieh v R [2018] NSWCCA 72
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Taitoko v R [2020] NSWCCA 43

Category: Principal judgment
Parties: Alexander Manojlovic – Applicant/Respondent
Regina – Respondent/Applicant
Representation:
Counsel:
I Lloyd QC/ T Bicanic – Applicant/Respondent
M Millward – Respondent/Applicant
Solicitors:
P Beaumont – Applicant/Respondent
Solicitor for Public Prosecutions – Respondent/Applicant

File Number(s): 2018/215178
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prevents the publication of any matter which is likely to lead to the identification of the complainant.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Manojlovic [2020] NSWDC 221

Date of Decision:

09 April 2020

Before:

Williams SC DCJ

File Number(s):

2018/215178

JUDGMENT

HOEBEN CJ at CL:

Non-publication order

Section 578A of the Crimes Act 1900 (NSW) prevents the publication of any matter which is likely to lead to the identification of the complainant.

Offences and sentence

The applicant stood trial in the District Court at Goulburn before Judge Williams SC (the trial judge) and a jury between 3 and 10 February 2020 on an indictment containing eight offences relating to the indecent and sexual assault of the complainant on or about 31 March 2017. Three of the offences were charged in the alternative.
The applicant (then aged 36) was a teacher at the high school attended by the victim (then aged 17). He was not her classroom teacher at the time, but she had attended his classes on occasions over the preceding years. It was not in dispute that he was, at the time, her appointed teacher-mentor and that she had sought his assistance in that capacity earlier on the day of the offences during school hours.
The issue at trial was whether the offences were committed without the complainant’s consent, and whether the complainant was under the authority of the applicant (for the purposes of the principal counts) or under his special care (for the purposes of the alternative counts).
On 10 February 2020, the applicant was found guilty of each of the five principal counts. They were:

two counts of aggravated indecent assault (the circumstance of aggravation being “under authority”), contrary to s 61M(1) of the Crimes Act 1900 (NSW) (Counts 1 and 2); and

three counts of aggravated sexual intercourse without consent (the circumstance of aggravation being “under authority”), contrary to s 61J(1) of the Crimes Act 1900 (Counts 3, 5 and 7).

Having returned verdicts of guilty to the principal counts, the jury was not required to return verdicts in respect of the remaining counts: three counts of sexual intercourse with a child between 17 and 18 under special care, contrary to s 73(2) of the Crimes Act 1900 (Counts 4, 6 and 8). Those counts were charged in the alternative to each of the counts of aggravated sexual intercourse without consent.
The applicant was sentenced to an aggregate sentence of imprisonment for 3 years and 9 months, commencing on 10 February 2020 with a non-parole period of 1 year and 10 months. The non-parole period expires on 9 December 2021. The aggregate head sentence expires on 9 November 2023.
The applicant has appealed against his conviction on a single ground of appeal:

The verdicts of guilty on Counts 1, 2, 3, 5 and 7 are unreasonable or cannot be supported having regard to the evidence

Since the appeal relates essentially to matters of fact, the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

Summary of evidence at trial

The following facts were uncontroversial. The complainant was born in February 2000. At the time of the offences she was aged 17, having turned 17 in February 2017. She attended Bowral High School (the school) from 2012, when she was in year 7 until 2017, when she completed year 12. The applicant was first employed at the school as a casual teacher in 2013 when the complainant was in year 8. He remained in continuous employment at the school until October 2017 when the matter was reported to both the school and police by the complainant’s mother, LM.

Complainant’s evidence

The complainant gave evidence as to her interactions with the applicant at the school. She first met him in 2013, when she was in year 8. Halfway through that year the applicant, who was filling in for another teacher, taught her music class. In May 2014, the applicant attended a ceremony at Sydney Town Hall for the presentation of a scholarship to the complainant because Mr Morris, the Deputy Principal of the School, who had been scheduled to attend, was unavailable.
In 2014, due to conflict with a teacher, the complainant switched classes and moved into the year 9 English class taught by the applicant. The complainant believed that the switch took place around the middle of the year. On the day she was placed in his class, the complainant was “not in a very good mood”. The applicant passed her a note that said “Cheer up, beautiful”. The applicant taught the complainant English for the remainder of the school year.
In the same year, the complainant participated in a program run by Ms Mitchell and the applicant. The program was ostensibly for students from the year below her, but she was permitted to participate in it.
In 2015, the complainant was in year 10. Once a week she sat in the year 12 English class taught by the applicant in lieu of attending sport. She attended his class each Wednesday afternoon for about an hour and a half and completed homework or assignments while he taught the older students.
There was an occasion, in 2016, when the applicant taught the complainant’s English class, filling in for another teacher. The complainant gave evidence that she spoke to the applicant for the whole lesson. The complainant asked the applicant how his wife was. The applicant told the complainant that he was no longer with his wife and showed her a photo, from his Instagram account, of him lying in bed with a girl whom the complainant recognised as a former student of the school named J. In December of the same year, the complainant sent the applicant a request to follow him on Instagram. The applicant accepted the request. Thereafter, they were each able to see pictures the other had posted on Instagram. The app has a private messaging feature whereby users are able to send messages to one another, similar to a text message.
In 2017, the complainant was in year 12. The school introduced a mentoring program whereby year 12 students were able to nominate three teachers, one of whom would be appointed as their mentor. The complainant explained her understanding of the program as follows:

“... because year 12 is the hardest and most stressful year of school, everyone’s worried about their exams and they've got all these assignments and exams and everything coming up so they brought that in as a way to, like, you have your mentor and if you’re feeling stressed or anxious or you just needed to chat to someone you went and spoke to your mentor, so it was just to alleviate some stress and anxiety around exams and ...” (T27.44-50)

The complainant nominated the applicant as one of her three teachers and he was appointed as her mentor. She and the applicant compared their respective timetables to see if they had a matching free period that could be allocated as a mentoring session. They did not, so they “played it by ear” (as to when to meet up) (T28.12-41; 114.28-39).
When asked how frequently she met with the applicant, the complainant said “It wasn’t too frequently”. A lot of their contact was when he was on playground duty or she would go and see him in his class. The complainant said “if I was ever upset or something was bothering me or I just needed a break from class I would go and see him” (T28.50).
On 31 March 2017, the complainant was having a bad day after a fight with her boyfriend, CJ, and was unable to focus in class. She asked to have a mentoring session with the applicant. She was allowed to leave class for that purpose and sat in on the applicant’s year 7 music class. The complainant and the applicant spoke while the class worked independently. The complainant told the applicant that she and her boyfriend were fighting. The applicant said he thought she should break up with him. During the conversation, the applicant mentioned that he and J were having issues. The applicant said “If things aren’t too nice at home tonight, you can come to my place and have pizza and watch the footy”. The mentoring session lasted about 45 minutes. It took place during the last period of the day.
Later the same evening, the complainant had contact with the applicant via Instagram about the fact that she was fighting with her boyfriend. Sometime after 9pm, the complainant went for a drive to clear her head. As she drove, she received a message from the applicant via the Instagram app asking if she could pick him up and drive him home. She said that she would and sent the applicant her phone number asking him to call when he was ready (T32.9-33.47).
The applicant sent the complainant a message “on [her] mobile number” saying that he was ready to be picked up. He sent the complainant the address. The complainant drove to the address nominated by the applicant in Colo Vale. The house was set back from the road, with a long driveway and a horse paddock in the front. There were houses either side but they were “not close”.
When she arrived at about 11pm, the applicant was standing on the steps of the house. As he walked to her car, she noticed that he was stumbling and appeared to be intoxicated. He told her to get out of the car. When she did so, he gave her a hug, something he had never done before. The complainant said he “reeked of alcohol” (T35.40-36.10). They went inside the house and into the lounge room. The complainant sat on a two seater lounge opposite the TV. She placed her phone and keys on the coffee table. The applicant initially sat down on another lounge which was against the back wall of the room. He talked about J.
The applicant told the complainant that the house belonged to his parents. About half an hour after she arrived, he told her that there was a man staying there but he was asleep.
The applicant moved and sat next to the complainant. He tried to cuddle her and put his head on her chest. The complainant said “I was saying, “No”, like, I've got a boyfriend I’m with [CJ]. You’re with [J]”. The applicant grabbed her shoulder a number of times and tried to pull her towards him. She said “No” and pulled away from him (T37.34-40). The applicant then tried to put his head on her chest. The complainant said “ I kept sort of pushing him away and he - and I would say to him “No, you're with [J] and I'm with [CJ],” and then he would - he would go “Oh, yeah, yeah, that’s right”, and he’d move away, like, he – he’d move off me and then he would just creep closer again and then I’d say the same thing”. The complainant moved lounges “a couple of times” because she felt uncomfortable with him touching her.
The complainant was lying on a lounge. The applicant lay behind her. He “kept trying to cuddle [her]” and kept saying “I just want to cuddle. Nothing's gonna happen” (T39.1-5). They lay there for no more than five minutes. The complainant said “I was just really tense. Like, I was not touching him. I was just tense”. The applicant put his hands inside the complainant’s tights and was fondling her on top of her underwear (Count 1 – aggravated indecent assault) (T43.7-24).
The complainant got up and reminded the applicant that he had said that they were not going to be doing anything. She moved back to the other lounge before picking up her keys and phone from the coffee table and telling the applicant that she was leaving. He walked with her to the front door. At the time, the complainant assumed he was escorting her out. When they reached the front door, the applicant locked it and removed the key (T43.26-46).
The complainant walked back to the lounge room and placed her keys and phone on the coffee table. The applicant picked up her car keys and put them in his pocket (T44.5-10).
The complainant sat on the lounge opposite the TV. The applicant sat down next to her and tried to cuddle and touch her again. The complainant kept saying “No. Stop”, and repeatedly mentioned his girlfriend in order to try and persuade the applicant to stop. The applicant told the complainant she had “daddy issues”. She said words to the effect of “Yeah. You’re 20 years older than me. I don’t like men 20 years older than me”.
The complainant gave evidence that the applicant would try to lean in and kiss her and that she would pull away to the side. She said “[H]e eventually did kiss me”, that it was a “peck” and that she “didn’t kiss him back, but didn't pull away either”. On this occasion when she reminded him of his girlfriend, the applicant’s demeanour changed “like flicking a light switch” and he said numerous disparaging things about her. He then lifted the complainant’s jumper and touched her breasts. The complainant was wearing a bralette, which the applicant lifted up. He kissed her breasts. As he did so, he rubbed the complainant’s whole body from her torso, around her bottom and back up to her breasts (T45.14-46.1). At the time, the complainant “wasn’t responding”. She said “I think by that stage I was just in shock, so I was just laying there”. When asked if she agreed to him touching her in that way, the complainant said “I did not, no. I did ask him to stop” (Count 2 – aggravated indecent assault) (T46.9).
The applicant then inserted his fingers into the complainant’s vagina. When asked if she wanted him to do that the complainant said “Not at all”. As to whether she said anything at that stage, the complainant said “No I don’t – I think at that stage I’d stopped speaking”. The applicant’s fingers were in her vagina for “probably a couple of minutes”. He was kissing her breasts as he digitally penetrated her (Count 3 – aggravated sexual intercourse without consent) (T46.45).
The applicant removed the complainant’s pants and performed oral sex on her for four to five minutes. Neither said anything at the time (Count 5 - aggravated sexual intercourse without consent) (T47.4-20).
The applicant got up, removed his jeans and had penile-vaginal intercourse with the complainant. He did not use a condom. The intercourse continued for “probably three to four minutes”. She did not say or do anything as it was happening (Count 7 – aggravated sexual intercourse without consent) (T47.22-48.2). The applicant stopped suddenly, put his pants back on and started crying about the fact that he had just cheated on J.
The complainant put on her pants and underpants and asked the applicant for her keys. He did not respond. He asked the complainant to “sleep over”. She refused and said she needed to go, that she had to go to work. The applicant then gave the complainant her keys. He opened the door for her. He offered to reverse the complainant’s car around a tree. She then got into her car and left (T48.9-49.18). Sometime later, photographs were taken by police of the front door which confirmed the presence of a key in the lock.
The complainant went home and had a shower because she “felt disgusting'”. She woke the following morning to a “whole bunch of missed calls and messages” from the applicant. There were also voicemails in which the applicant asked her to come back and said that it was urgent (T49.50-50.5). The complainant drove by the applicant’s home on her way to work. He was, in her assessment “still as drunk as the night before”. When the complainant asked the applicant what was so urgent, he said that he needed to see her. She did not recall having said anything to him and left because she had to go to work.
The following Monday, the complainant saw the applicant in the corridor at school. He smirked at her and said “I didn’t even come (sic) so it doesn’t count” (T51.28). The complainant had no further mentoring sessions with the applicant. She did her best to avoid him at school but was not always able to (T51.38-.47).
In cross-examination, the complainant agreed that she regarded the applicant as “the cool teacher”. As to the suggestion that in her statement she had described the applicant as her friend, the complainant said “I did, I saw him as a friend. I saw him as someone I trusted, someone I looked up to” (T61.9-.31).

The complainant agreed that she knew that there was a “back door” to the home in Colo Vale where the offences occurred and that she had indicated as much in the diagram she prepared when she made her statement (Exhibit A) to the police. When asked about not having exited via the back door, the complainant said that she did not have her car keys. As to why she did not go to a neighbour’s house to raise the alarm, the complainant said:

“At 2 o'clock in the morning by myself run down a long, ditchy driveway in the dark. I don’t know where I am. And then walk along a main road and walk up another really long driveway to a stranger’s house that I don’t know, at 2 o’clock in the morning, with hopes that Alex [the applicant] (isn't going to catch me on the way. Doesn't sound like a good idea.” (T82.33-.38)

The complainant added:

“I wasn't familiar with the property. I wasn’t familiar with the neighbours. It was 2 o'clock in the morning. You have to make a decision when you’re in that situation. You have to make a decision then and there. The decision I made was to stay, let him do what he had to do so that I could get out safely. I didn’t know what he was capable of. I didn’t know him outside of school. He was drunk. I didn’t know if he would turn violent. I had to make that decision and that’s the decision I made when I was in that scenario.” (T82.40-.49)

The complainant agreed that she went into the kitchen briefly while the applicant was getting a drink. She assumed that she did see a back door to the house while she was in the kitchen but said that she was in the kitchen before the incident and at that time, she was not feeling like she needed to run away. At that time, the applicant was “just talking about [J]” (T87.1-.13)
The complainant agreed, as she had said during her evidence in chief, that she returned to the Colo Vale house the following morning at about 7.30am. She said she “briefly recalled” the applicant asking her to go to a service station and get him cigarettes because he was too drunk to drive. She agreed that she told the applicant that she could not because she was only 17. The complainant could not recall whether the applicant said “Oh I thought you were 18” but did not deny that he may have done so. The complainant denied that she went to the service station with the applicant. She said that she had no memory of it (T101.1-.31; T102.23).
The complainant accepted that phone records showed that she called the applicant on 31 August 2017. She said she could not recall the call but asked the cross-examiner whether the call followed any missed calls. The complainant said that she recalled one call with the applicant in which they spoke about J moving to London, but that was all she could remember. The complainant denied that following the call, she had gone to the applicant’s home in Berrima for an hour. (It should be noted that the applicant did not mention such a visit in his Electronically Recorded Interview of a Suspected Person (ERISP) which was conducted in the presence of his solicitor and under special caution.)
The complainant accepted that phone records showed a 47 minute call to her from the applicant on 14 October 2017. The complainant identified this as the “[J] moving to London” conversation.
The complainant gave evidence that in her discussions with her latter boyfriend, JR, and with her brother, there was no mention of rape, nor was there any mention of it being consensual. She “totally disagreed” that she only came out with “the version of rape” (to use the cross-examiner's expression) to appease JR and keep the relationship with him going. In relation to her mother’s report of the matter to the school and the police, the complainant said “I asked her to do the opposite. I begged her not to.” She begged her not to because “I didn't want to go through the court process. I didn't want to go through this whole process” (T114.1-10).
The complainant maintained, contrary to the propositions put to her, that the applicant had taken her keys and locked her in the Colo Vale house.
The complainant’s statement to the police was not tendered and was not in evidence.

Other evidence in the trial

The complainant’s mother, LM, gave evidence as to the circumstances and contents of the complaint and her report of the matter to the school and police. LM initially became aware of the matter after being awakened on the (Monday) morning of the complainant’s first HSC exam (months after the date in the indictment) by her son (LG) yelling at the complainant saying “she’s fucked her teacher”. LM heard the complainant respond “No I didn’t”. LM did not immediately discuss the matter with the complainant because she was about to go to school to sit her HSC exam.
Without telling the complainant, LM arranged for JR to come over the following Friday. She confronted the complainant in the presence of a number of people including JR and told her that she needed to know what was going on. The complainant said that she had had an argument with her previous boyfriend (CJ), that the applicant had been texting her and had said come over, that she did and that he had locked the door and had sex with her. As to the complainant’s demeanour at this time, LM said, “She was distraught I mean I’d put her on the spot with people” (T133.1-.2).
LM told the complainant that she was going to report the matter to the school. The complainant did not want her to. When asked what the complainant said, LM gave the following evidence:

“She's just saying please don’t, please don’t. She didn’t want to go through any court process or anything but my hands were tied. I said, he’s a teacher at a school, he's still teaching ... I need to bring this to the attention of the school and the police” (T133.18-.21).

The following Monday, LM reported the matter to the school, and on their advice, to the police.
The complainant’s ex-boyfriend, CJ gave evidence. Like the complainant, he went to Bowral High School. He was two years above her at school. They were in a relationship “through high school and a bit after school”. He could not remember when they had broken up; whether it was 2017 or late 2016. CJ said that there was an occasion when he and the complainant were driving through Berrima (he was driving) when she pointed out the applicant's home. He had “no idea” when it happened.
In relation to the applicant, CJ said “[H]e was, I think her counsellor at school. So she used to spend a bit of time with him sort of outside of class, or when she was having a tough time at school”. As to when he was her counsellor, CJ said “I know year 12, it could have been year 11 as well, I'm not too sure” .
Megan Mitchell, another teacher at the school, gave evidence that between 2012 and 2016 she worked part-time at Bowral High School. Her role at the school was to deliver a number of special programs. She came to know the complainant through her participation in a leadership program “Speak, Act, Lead”. Ms Mitchell ran a second program, Make a Difference (MAD) which was later renamed Make a Difference Social Emotional Learning (MADSEL) which was targeted at a small numbers of year 8 students who had been identified as “at risk”. The aim of the program was to promote the students’ resilience and encourage them to re-engage with their education.
In January 2015, the applicant became involved in the MADSEL program and delivered it with her. While the program was for year 8 students, the complainant (who in 2015 was in year 10) was quite often given permission to sit in on the program when she was “not having a great day”. Ms Mitchell said the complainant would speak to her if she was having a difficult day. She also observed the complainant speak to other teachers including the applicant.
Mr Morris was the Deputy Principal of Bowral High School from 2010 or 2011 until sometime after 2017. He gave evidence that he was responsible for the complainant’s year throughout her time at the school. He described the complainant as an “exemplary student in year 7” but said that she began having behavioural issues from year 8 onwards as a result of which he had a lot of involvement with her. The complainant was given a “time out card” which allowed her to leave class and report to him if she was becoming distressed in the classroom.
The frequency with which she reported to him became an issue when the complainant was in year 9, such that he and the Principal tried to find someone else that “could look after [the complainant] and support her”. The applicant was identified as one of the people that the complainant was happy to go to and, to his knowledge, there was an arrangement put in place whereby the complainant would go to the applicant.
Mr Morris confirmed that the applicant attended the presentation of the scholarship awarded to the complainant when he was unable to do so, noting “[the applicant] was the other person that I would say was close to [the complainant] and - and really supporting [her] through school”.
In relation to the mentoring program introduced by the school when the complainant was in year 12, Mr Morris described it as a program whereby:

“... students could have a teacher that they went to to support their learning, support their - their social development and to support them through the issues they go through in year 12 which is normal. It’s a stressful year. So they had somebody they could rely on and knew that they had somebody they could go to that they trusted.” (T166.50-167.3)

Staff were asked to volunteer to support the students (in the mentoring program). Staff participation was not mandatory. Mr Morris gave evidence that staff were informed as to what was involved in their role as mentor, which was:

“The teacher - the teacher was basically there, one to help the student with any issues they were having. You know, it might be someone that they can go and talk to cause there’s issues at home or issues with friendships or they might of broken up with their boyfriends, et cetera. But on top of that, they were - they were able to take their assessment tasks, the assessment task scaffolding, et cetera, and go through what the task was with the teacher.” (T170.1-10)

Teacher-mentors were provided with attendance records of the students they were allocated, as well as information as to whether they were missing assessment tasks.
Mr Morris said that there were no rules about how often a mentor and mentee should meet and that he tended to catch up with the students that he mentored in the playground (T170.33-.42).
Mr Morris gave evidence, in cross-examination, that for a long period of time Bowral High School was without a school counsellor so the “school counselling load” fell back on teachers.
The final witness to give evidence in the Crown case was Detective Senior Constable Jessica Walsh. Detective Walsh took over from Detective Sergeant Gal as the officer in charge of the case in January 2018. She gave evidence in relation to a number of aspects of the police investigation. Detective Walsh made a number of efforts to obtain statements from the complainant’s brother LG and her ex-boyfriend JR, but both failed to attend appointments scheduled for that purpose. She said that Detective Gal was not at work and that she believed he was sick. As to notes he had made of conversations with the complainant’s mother, Detective Walsh said that they were not her notes and she was not present during the conversations.
The applicant did not give evidence in the trial. He relied on his ERISP, which took place on 12 July 2018 (Exhibit C). The interview was conducted in the presence of the applicant’s solicitor and under special caution. When asked to describe his relationship with the complainant the applicant said “She used to confide in me a lot about everything. About um, the dysfunction at home”. He said he regarded the mentoring program as “a joke” and said “I didn’t mentor her at all. I was more, she would confide in me regularly about you know the issue with a particular subject teacher. But or a lot to do with her family” (A72, A74, A76, A78).
The applicant described himself as a “chronic alcoholic” and said that his recollection of the past five years was “pretty damaged” such that he could not even remember how long he had lived in Berrima. He said at the time he was drinking three to four bottles of wine on a “normal day”, as well as spirits on the weekend.
The applicant described the incident with the complainant as a “consensual interaction”. He later said “It was a two-way consensual act as far as I can recall” (A326). The applicant said that he could not even remember the complainant coming into the house; that he could not remember any conversation; and that he thought there “would’ve been some sort of consoling like a cuddle or something like that which then probably led to a kiss which then went further” but that he “couldn’t even tell [police] what [they] actually did” (A153-A155).
The applicant later described a number of things that he said he did remember, including that there was cunnilingus during which the complainant said “wow” (A162, A211). When asked what the complainant’s demeanour was like during the intimacy, the applicant said she was “really happy” and that it was almost like she had wanted that interaction prior to arriving “whether it had been a plan or not” (A208).

Principles

The legal principles applying to a ground of appeal alleging that the verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, are well settled: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
Those principles are conveniently collected in SKA v The Queen at [11]-[14] as follows:

“11 ... the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”
13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

...
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”

More recently, those principles were restated in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12. The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) at [38]-[46] said:

“38   It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
39   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
...
43   At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
“whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

44 The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
"But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt." (footnote omitted; emphasis in original)

45 As their Honours observed, to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.
46 When it came to applying the M test, their Honours’ subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence and the capacity of the evidence of the opportunity witnesses to engender a reasonable doubt as to his allegations. Their Honours reasoned, with respect to largely unchallenged evidence that was inconsistent with those allegations (the “solid obstacles” to conviction), that notwithstanding each obstacle it remained possible that A's account was correct. The analysis failed to engage with whether, against this body of evidence, it was reasonably possible that A’s account was not correct, such that there was a reasonable doubt as to the applicant's guilt.”

In Neto v R [2020] NSWCCA 128 at [66] Hidden AJ (with whom Basten JA and Fagan J agreed) noted that the observation of McCallum J in Hawi v R [2014] NSWCCA 83 at [480] has particular force in a case which turns upon the honesty and reliability of the principal Crown witness as this case does. There, her Honour said:

“480 The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.”

Relying upon those authorities, the applicant submitted that when one examined the evidence of the complainant such inconsistencies, discrepancies and other inadequacies were revealed as should have caused a jury acting rationally to have entertained a reasonable doubt about his offending. The applicant submitted that there was a body of evidence, largely unchallenged, which operated as a solid obstacle to an acceptance of the complainant’s evidence beyond reasonable doubt.
The Crown did not accept that proposition, i.e. that this was a case which gave rise to similar considerations as were discussed in Pell v The Queen. The Crown submitted that in Pell v The Queen the High Court found that the verdicts of guilty were unreasonable despite the apparent credibility of the complainant’s evidence standing alone, in light of its inconsistency with independent evidence of cathedral procedure. The Crown submitted that in this case there was a direct challenge to the reliability of the complainant. Moreover, each of the issues raised by the defence was squarely before the jury and rejected by them. The Crown submitted that the basis for much of the challenge to the evidence of the complainant was that in some respects she had not acted as one would expect of a person who had been sexually assaulted.
It is, of course, now well recognised that this is an unsafe mode of reasoning and that victims of sexual assault may respond in unexpected ways without their reliability being impugned. In Maughan v R [2020] NSWCCA 51 Ierace J (with whom R A Hulme and Adamson JJ agreed) said:

“99 Caution must be exercised in gauging the parameters of the likely behaviour of a sexual assault victim vis-à-vis the perpetrator, during and following the assault. Behaviours that may not seem sensible, logical or otherwise plausible to those who have not endured that experience may not necessarily be indicative of implausibility or inconsistency with an allegation of sexual assault: see Rao v R [2019] NSWCCA 290 at [98]. In this case, the complainant explained that when she realised what was being done to her by the applicant, she experienced shock which rendered her unable to speak or move. The movements she eventually made were minimal, and even so, she had no recollection of how she made her way from the rug to the lounge chair. In the experience of criminal courts, those who work with sexual assault victims and as increasingly understood by the broader community, such a reaction is a common feature of the reaction of a victim to sexual assault, and therefore a claim of shock, immobility and silence by a sexual assault complainant is not necessarily indicative of implausibility.”

Was the complainant “under the authority” of the applicant at the time of the incident?

There is little by way of analysis of the meaning of the words “under authority” when used as a circumstance of aggravation in ss 61J(1) and 61M(1) of the Crimes Act 1900. The provision of the Act is in the following terms:

“(2) For the purposes of this Division a person is under the authority of another person if the person is in the care or under the supervision or authority of the other person.”

The section was considered by this Court in KSC v R [2012] NSWCCA 179 where McClellan CJ at CL (with whom Davies and Fullerton JJ agreed) said:

“118   The applicant submitted that in giving these directions the trial judge had failed to define the legal principles necessary for the determination of these counts: R v Dao [2005] VSCA 196; (2005) 156 A Crim R 459 at [21] (Buchanan, Vincent JJA and Byrne J). Although accepting that the trial judge's direction was "plainly correct" it was submitted that it was of no assistance to the jury. It was submitted that to state that a person is under the authority of another person if the person is under the authority of the other person is not helpful. Furthermore, it was submitted that the additional words "care" and "supervision" do not assist in determining the meaning of the expression "under authority".
119 It was submitted that her Honour should have provided the jury with more assistance and could have provided them with a dictionary definition of the terms appearing in s 61H(2) Crimes Act 1900. This was the procedure approved by Brooking JA in R v Howes [2000] VSCA 159; (2000) 2 VR 141, 159 at [57] and is consistent with the approach taken by the trial judge in R v DH [2003] VSCA 220.
120   It was submitted the error was compounded by her Honour's recitation of the evidence. It was submitted that "in practical terms her Honour's comments ... would have been understood by the jury to be a direction of law to the effect that they should find the element proven so long as the jury accepted the complainant's evidence". It was submitted that there was a need for the judge to be careful that in expressing a view about evidence the jury were not overawed: Taleb v R [2006] NSWCCA 119 at [76] (Simpson J).
121 It was submitted that without having been provided with a definition of the term "under authority" the jury was left with only one test to apply, namely whether it believed the complainant's account. It was submitted that it is plain that not every form of control constitutes "authority" for the purposes of s 61H(2). In Anderson v R [2010] VSCA 108 at [94] Weinberg J held that the applicant's control over the television remote and choice of movies did not mean that the complainant was under the authority of the applicant.
...
123   It is apparent that the issue of "under the authority of" was a vital issue at the trial. This is confirmed by the unsuccessful application for a directed verdict.
124   The applicant does not complain that her Honour erred in the directions she gave beyond a submission that the jury should have been given further assistance. Although in many cases a dictionary may prove useful, where the words of the section are clear there may be little to gain from resort to a dictionary. The words of a dictionary cannot be substituted for the words of the Act. In some circumstances reference to the words of a dictionary may constitute error.
125 I accept that by referring in terms to "authority" the definition in s 61H(2) is circular. However, the additional components of care or supervision make plain the nature of the relationship to which the section is directed. I see no reason why her Honour should have provided further assistance to the jury. Each of the words "care", "supervision" and "authority" are ordinary English words which the jury would have had no difficulty in understanding.
126   Her Honour was careful to provide the jury with assistance as to the evidentiary matters relevant to this issue. No complaint is made about the accuracy of her Honour's reference to the factual material. It is plain that if the jury accepted that evidence there could be only one conclusion in relation to this issue.”

When considering this issue, there are a number of matters which were uncontroversial. The complainant had only just turned 17. The applicant had been employed as a teacher at her school continuously since 2013 when she was in year 8. He had been appointed her teacher/mentor as part of an established monitoring program whereby a mentor was allocated to a year 12 student. Mr Morris described the program at [52]-[58] hereof.
The evidence of the complainant was consistent with that of Mr Morris. It is significant that as part of the mentoring program, teachers were provided with attendance records and academic records of students they were mentoring particularly where a student was missing deadlines for work. The applicant had been her English teacher in 2014. It is quite clear from the whole of the evidence that by the time the applicant was appointed the complainant’s mentor in 2017, there was already established between them a relationship of trust whereby over the years she went to him for support, had sought him out particularly and had spoken to him when things were not going well in her life. That evidence of the complainant was supported by what the applicant said in his ERISP (Q/A72).
Contrary to the applicant’s submission, 31 March 2017 was not the only occasion that mentoring had occurred between him and the complainant. The following evidence of the complainant makes that clear:

“Q. And what happened after you were allocated a mentor?
A. So you were to match up your timetable with their timetable so just when you have a free period if they had a free period you could allocate that to be your mentoring session so you could go every week and sit with the teacher in a designated area wherever you chose and yeah – just chat about whatever was bothering you if you needed help with any exams or assignments. That type of stuff, yep.
Q. So you were allocated Mr Manojlovic. Did you go through that process with him?
A. Yeah. So our timetables didn’t match up so we didn’t really necessarily have a period set in stone every week. It was just whenever we were both free so it was yeah, it wasn’t set in stone.
Q. Did you speak to him about when you could meet?
A. I did originally. When we looked at our timetables and then we just from memory, I just said “Oh like our timetables don’t match up, we will just play it by ear. If I finished an assignment in a class and don’t necessarily need to be there and need help, I can come to you” and yeah.
Q. And did you do that?
A. Yes.
Q. How frequently did you meet with him?
A. It wasn’t too frequent. It was actually a lot of the time that we had contact was when he was on playground duty. If he was on like he used to do playground duty where I used to sit and have lunch so that was sort of where we saw him. Where I saw him most but yeah but if I was ever upset or something was bothering me, or I just needed a break from class, I would go and see him.” (T28.23-29.1)

Given that the complainant throughout her schooling was a student who required additional support and assistance, and that she was proactive in seeking that additional support and assistance, it was well open to the jury to find beyond reasonable doubt that at the relevant time she was in the care of her teacher mentor and accordingly to be satisfied beyond reasonable doubt that she was under his authority as at 31 March 2017.

Complaint

The applicant contends that having regard to the evidence as a whole, it was not open to the jury to find that the complainant was not consenting beyond reasonable doubt. The applicant relies upon a number of aspects of the evidence, commencing with the complaint evidence and the circumstances in which the matter was reported to police.
It was not in dispute that the first time the complainant told anyone about what had happened was in September 2017 when she told her then boyfriend, JR. It is well established that there are many reasons why a complainant may not complain of sexual misconduct or might delay in making such a complaint (see s 294 of the Criminal Procedure Act1986 (NSW)).
The applicant relied on the fact that the complainant’s disclosure to JR did not include an allegation that the intercourse was non-consensual. The complainant gave evidence that she told JR “something along the lines of, “There was an incident with him, a sexual incident. It happened once and that's it.”” (T52.22-.44)
The disclosure was prompted by JR asking the complainant why the applicant was calling her mobile phone a lot. The terms of the complainant’s disclosure were deliberately ambiguous. She explained that what she had told JR was a “cover story” because she did not want the matter to be reported and go through the court system (T111.1). The complainant strongly opposed her mother reporting the matter to the school and police for the same reason.
In oral submissions, the applicant challenged the complainant because she described what she said to JR as her “cover story”. The applicant submitted that this response by the complainant made no sense and because it made no sense, was indicative of the complainant not telling the truth.
As already indicated, there is an inherent danger in asking the question ‘why didn’t a complainant respond in a particular way’ when the suggested response is one that is arrived at with the benefit of hindsight and the opportunity for careful consideration or careful reflection. In those circumstances, one must examine the issue from the complainant’s point of view.
The context in which the complainant gave that evidence was that she had been asked by JR why this teacher was calling her mobile phone so much. Significantly, the timing of this disclosure to JR coincided with a series of attempted calls and voicemail messages from the applicant on 5 and 6 October that are shown in the call log, Exhibit F. On 5 October there were two voicemail messages from the applicant to the complainant, an unsuccessful call on 6 October followed by a further voicemail message. That is consistent with what is set out at T52.39:

“Q. What did you tell [JR]?
A. He questioned why Alexander was calling my phone a lot, so I then said to him he was a teacher at my school and he questioned me why was he calling me all the time and leaving voice mails and I briefly said something along the lines of, "There was an incident with him, a sexual incident. It happened once and that's it."”

Accordingly, the answer to the first question posed by the applicant which was why didn’t the complainant just say ‘he’s my teacher’ or ‘he’s my mentor’, is that she did say that and it did not satisfy JR. So when he pressed his inquiry, she then gave what she described as her “cover story”.
The second challenge by the applicant was ‘why did she not just say he was calling about the HSC’ or something along those lines. The obvious answer to that when one looks at the timing of these calls, is that at this point in time, the lengthy call of 14 October (apparently about J going to London) had not taken place. Accordingly, the complainant did not know what the applicant was calling about. What the complainant (who did not have the opportunity for calm reflection) appears to have done was seek to deflect the inquiry by JR by giving a response which in her mind was a cover story. She plainly did not anticipate what would happen next which was caused by an unrelated fight between her and JR. Significantly, the complainant in her response to JR gave an explanation which was close to the truth but not complete. When one has regard to her wish to avoid legal proceedings, the rationale behind the “cover story” is clear. The complainant’s intention at the time was to suggest that a consensual sexual episode had taken place. In other words, the issue which the complainant did not want to reveal was that non-consensual intercourse had taken place. As a result, she gave a response that was in effect ambiguous and a half truth in the sense that it referred to intercourse but not the question of whether it was consensual or non-consensual.
Looked at in that way, the complainant’s explanation is consistent with the later statement to her mother and others that the sexual episode was in fact non-consensual.
Her mother’s evidence as to what the complainant said when she did reveal what had happened is fully consistent with the complainant’s state of mind at this time.

“Q. Yes.
A. I got [JR] over without telling [the complainant], so I brought her out then and said right, tell me what's going on, because I knew something wasn't right.
Q. All right. And what did [the complainant] say?
A. She said that she had, had an argument with [CJ] and Mr Manojlovic had been texting her, and had said come over, so she went over there and she said that he'd locked the door and she said he had sex with me.
Q. How did she appear when she told you that?
A. She was distraught I mean I'd put her on the spot too with people, because I knew that something wasn't right. And --
Q. Can you just describe what you mean by distraught?
A. She was crying, she was clearly, well distraught, like, upset, crying having to disclose what had happened. And then of course I was saying, okay, I've got to, you know, we've got to go to the police, we've got to go to the school. And I was working, or I worked two jobs, so I worked all that weekend, and that's when on the Monday I went to the school, to talk to Mr Morris.
Q. Did you tell [the complainant] that you were going to go to the school?
A. Yes.
Q. Did she respond to that?
A. Yes, she didn't want me to.
Q. Do you remember what she said?
A. She's just saying please don't, please don't. She didn't want to go through any court process or anything, but my hands were tied. I said, he's a teacher at a school, he's still teaching, I need to, I need to bring this attention of the school and the police.” (T132.41-133.21)

As indicated above, the complainant’s initial denials to her brother and mother must be considered in context. Not only did the complainant not want the matter to be reported to the police because she did not want to go through the court process but the denials occurred on the first day of the HSC exams. The complainant was woken up by her brother screaming at her and asking whether what he had been told by JR, was true.
The complainant said “I denied it at first. I didn’t know that [JR] had told my family so they all came at me and I denied it” (T52.46). As to why she initially denied it, the complainant said:

“Because I was just scared and I didn’t want to get into trouble and I was embarrassed, I was – felt belittled like I just felt worthless. I just didn’t want people knowing about it.” (T53.7)

It was on the following Friday (20 October 2017) that the complainant was confronted by her mother, brother and others and told them what she had said in her evidence in court.
The applicant also relied upon the contents of notes made by Detective Gal of conversations he had with her by phone on 24 October 2017 and in person on 27 October 2017. Those notes were not in evidence before the jury. For reasons not explained (but perhaps due to ill health) Detective Gal did not give evidence in the trial.
The complainant gave evidence in cross-examination that she recalled talking to Detective Gal on the phone and later at the police station. It was put to her that a note made by that officer recorded that on 24 October 2017 he had a brief conversation with her about a sexual encounter with the applicant and that she “didn’t appear to have told him that the sexual encounter was non-consensual” (T66.27). The complainant said she did not recall what she said to him in the telephone conversation. The content of the notes were not put to her verbatim.
The complainant agreed that she attended Bowral Police Station on 27 October 2017 but did not recall what she spoke to Officer Gal about. When the honesty of her recall was challenged, the complainant maintained that she was being honest. She said “It was nearly three years ago. I don't recall exactly what I told him. I was very emotional. I was going through a very stressful and hard time. I don’t recall my exact words to him or what I spoke about.” (T67.18) When a portion of the notes was read to her and it was suggested that there was no mention of the fact that the applicant had asked her take him home, the complainant pointed out that the notes may not be a complete record of all that was said.

The complainant was giving evidence as to her memory of the conversations at the time of trial (some three years later). She was not the author of the notes, nor had she been given an opportunity to adopt them as accurate and complete at the time they were made.
There is another problem with the applicant relying upon the notes taken by Detective Gal. As was pointed out in an objection by the Crown, it was quite unfair for the complainant to be cross-examined about a document which did not originate from her, but from Detective Gal. It was also contrary to s 44 of the Evidence Act 1995 (NSW). Moreover, the failure to tender the notes meant that the only evidence before the court on this issue comprised those propositions which were put to the complainant by the cross-examiner and which were adopted by her.
It is trite to observe that in cross-examination the putting of a proposition to which a negative response is given does not constitute evidence. It is only if the proposition is accepted that both the question and answer become evidence. In relation to the matters at T66-67, the complainant said on more than one occasion that she could not remember what was said in the telephone conversation nor what was said at the police station. It follows that none of the questions and answers at T66-67 are evidence in the trial. That is because the “evidence” comprises propositions which were not adopted by the complainant.
The cross-examination, some of which was allowed over objection, produced the very unfairness that s 44 of the Evidence Act is designed to guard against (Antouny v R [2020] NSWCCA 203 at [66]-[67]).
As set out above, the complainant gave evidence that the terms of her initial disclosure to JR and the request she made of her mother not to report the matter were because she did not want to go through the court process. That evidence was supported by the evidence of her mother who, when asked what the complainant had said when she asked her not to report the matter, said:

“A. She's just saying please don't, please don't. She didn't want to go through any court process or anything, but my hands were tied. I said, he's a teacher at a school, he's still teaching, I need to, I need to bring this attention of the school and the police." (T133.18)

Having observed the complainant give evidence and be cross-examined in the proceedings, the jury were well placed to make an assessment of what the court process entailed. It was well open to them to accept the complainant’s explanation of the delay in complaint.

Evidence of LM as to notes made by third parties

The applicant relied on the fact that the complainant’s mother refused to accept as accurate statements attributed to her which were recorded in notes made by others. For the reasons already indicated in relation to the complainant, the cross-examination of LM as to the contents of those notes did not comply with s 44 of the Evidence Act.
The applicant relied on statements said to have been made by LM in two conversations. The first was a conversation between Detective Gal and LM on 23 October 2017. A portion of the notes made by Detective Gal were put to LM in the following exchange:

“Q. No. You said this - and I've got a note from Officer Gal of what he said you said when you spoke to him on 23 October.
A. Mm hmm?
Q. “On Friday 20 October the person reporting” - that's you – “spoke to the victim” - that's [the complainant] – “and [JR] about the matter and victim disclosed the above”. That is that she’d been raped because Mr Manojlovic locked her in the house. “Victim stated it was an accident and she was now over it.” This is Officer Gal reporting what you said to him. Do you recall saying that?
A. No, I do not, I don't recall saying it was an accident.” (T135.50-136.9)

LM said:

“A. I would never have said it was an "accident", I don't remember that.” (T136.22)

The notes were not tendered in the proceedings and thus their content was only before the jury to the extent that they were adopted by LM.
Similar problems affect the admissibility of the evidence of LM as was relevant to the notes said to have been taken by Detective Gal of his conversations with the complainant. There is also the problem created by s 44 of the Evidence Act. LM was not the author of the notes, nor did it appear that she had been given an opportunity to adopt them as accurate and complete at the time they were made. She refused to adopt parts of the notes which were put to her.
The applicant also contended that a note made by an investigator from the Education Department of a conversation she had with LM on 23 October 2017 included a statement by LM that the victim had told her that the intercourse was “consensual”. The contents of the notes were not in evidence. Portions of them were read to LM (T136-138).
The portion of the notes on which the applicant sought to rely was as follows:

“[LM], the mother, returned the call, stated that the boyfriend of AV” - that's [the complainant], AV is an acronym for 'alleged victim' – “stated that boyfriend of AV, JR, had been arguing with the AV, as he knew that the AV had consensual sex with the PSOA at his house.” (T137.22)

It can be seen immediately that even assuming the accuracy of the note, LM did not tell the investigator that the complainant had told her that the intercourse was consensual, rather she was reporting something that she heard JR say during the course of an argument with the complainant. In any event LM responded:

“I have never used "consensual" in anything that I have said about this at all.” (T137.29)

Further portions of the same note, which were damaging to the applicant, were put to LM. They strongly suggested that she did not tell the investigator that the complainant had told her that the intercourse was consensual. In particular, the note records (as put by the cross-examiner):

“Once there, she realised how drunk he was. She stated he tried to touch her, she tried to leave then he locked the door, would not allow her out of the house.” (T138.19)

There was evidence from the Deputy Principal, Mr Morris, concerning the notes from the Education Department. Although Mr Morris could remember the general effect of the note, in re-examination he said:

“A. I just recall that she was making an allegation against [the applicant] having had relations with [the complainant]. [LM] was in the room at the time that I rang Safety and Security.
Q. Do you remember what words [LM] said?
A. I don’t.
Q. You just remember the gist of the conversation?
A. Yeah, yeah.” (T173.44-174.4)

Accordingly, there was no evidence properly before the jury that LM made either of the statements in the notes, contended for by the applicant.
There was no challenge by the applicant to the complainant’s evidence as to how she communicated her lack of consent to him by her actions. She sought to distract him when he tried to embrace her, she moved backwards and forwards between two lounges to avoid him and that in the course of the evening, he locked the front door and removed her car keys. The applicant’s answer was that none of this happened. If the jury accepted the evidence of the complainant, there was no difficulty in them being satisfied that the sexual activity occurred without her consent. It is significant that the photographs do reveal the front door and there is located in it a key consistent with the complainant’s evidence. The presence of the key was important in that it provided objective support for the complainant’s evidence. The complainant was able to accurately describe the lock and key when she spoke to police nine months later.
It was the complainant’s evidence that she arrived at about 11:00pm and that she left at about 2:00am and that it was at the very end of that period that the events, the subject of the charges, occurred. The complainant’s answer to the suggestions that she should have left earlier than she did are convincingly set out in her evidence on that issue:

“Q. Did you try and leave through that door?
A. I didn't have my car keys, so no.
Q. Madam, you say you've been raped. You say my client's stumbling around drunk. You have it on several times this evening. There was nothing to stop you simply going to that door that you clearly knew was there. You've described it as a back door and exiting the house. Correct?
A. Correct.
Q. You could've gone to a neighbour's house and raised the alarm.
A. At 2 o'clock in the morning by myself run down a long, ditchy driveway in the dark. I don't know where I am. And then walk along a main road and walk up another really long driveway to a stranger's house that I don't know, at 2 o'clock in the morning, with hopes that Alex isn't going to catch me on the way. Doesn't sound like a good idea.
Q. How is he going to catch you, madam, stumbling as a drunk? You were perfectly sober.
A. I don't know. I didn't know - I wasn't familiar with the property. I wasn't familiar with the neighbours. It was 2 o'clock in the morning. You have to make a decision when you're in that situation. You have to make a decision then and there. The decision I made was to stay, let him do what he had to do so that I could get out safely. I didn't know what he was capable of. I didn't know him outside of school. He was drunk. I didn't know if he would turn violent. I had to make that decision and that's the decision I made when I was in that scenario.” (T82.24-.49)
“Q. You could've gone out the front door. You could've gone out the back door. He's stumbling around.
A. I didn't feel comfortable doing that at that time. As I said earlier, I didn't know where I was. I wasn't familiar with the property. I was scared. I didn't feel comfortable being by myself at 2 o'clock in the morning, or 1 o'clock in the morning - whatever time this was - walking down this long, dark driveway by myself.” (T83.41).

The next morning (1 April 2017)

The applicant submitted that the evidence given by the complainant as to the extent of contact she received from him in the period immediately after the incident was shown by Exhibit F (the call log) to be “heavily embellished”. This referred to the complainant’s evidence in chief that she woke up to a “whole bunch of missed calls and messages from the applicant” and referred to “some voicemails” asking her to come back.
In cross-examination, the complainant agreed that she had said in her statement that she had three voicemail messages, five Instagram messages and about five missed calls. When it was put to her that there were not three but one voicemail message, the complainant said that she made her statement nine months after the incident without the benefit of phone records. When it was suggested to her that there were no missed calls, she said that she remembered multiple missed calls from a landline number as well as the applicant’s mobile (T99.48-100.8).
The applicant’s contention is based on the premise that the call log, which was put together based on phone records, would show missed calls including all missed calls for which no voicemail message was left. The difficulty with that proposition is that there was no evidence before the jury that established it. Detective Senior Constable Walsh gave evidence that phone records record “calls made and received, and SMS made and sent”. She agreed that the phone records were based on charges that are associated with the use of a phone.
The relevant evidence was:

“Q. You refer to them as call charge records or CCRs.
A. Yes.
Q. What do they record?
A. Calls made and received, and SMS made and sent.
Q. They are kept by the mobile phone service provider.
A. Yes.
Q. They relate to charges that are associated with the use of a phone.
A. Yes.
Q. When a person uses Instagram, do they incur a charge on their phone? Is that a call that --
A. Not that comes up on those records, no.
Q. Those records don’t recall Instagram messages.
A. (No verbal reply)
Q. Is that because a person who uses Instagram uses data?
A. Yes.
Q. That can either be through a Wi-Fi connection or through data on their phone.
A. Yes.
Q. You obtained phone records relating to the two mobile numbers that are referred to in that interview as well as the landline of Mr Manojlovic’s parents’ home. Is that correct?
A. Yes.” (T189.31-190.10)

As to the Instagram messages, there was no dispute at trial that those messages were transmitted within the app using data, and therefore do not appear in phone records. It follows that the extent of the inconsistency between the complainant’s evidence and the call log is that there was one voicemail message instead of three. It was well open to the jury to accept the complainant’s explanation for that discrepancy.
It was submitted on behalf of the Crown that insofar as the voicemail messages were concerned, she was honestly mistaken. She was mistaken as to whether or not there were three as she had initially said on that particular evening or whether there was one. Given that the events described occurred nine months before at a time when the complainant’s focus might well have been elsewhere (i.e. on the day following the incident) it was well open to the jury to accept that the complainant was genuinely mistaken. An alternative which cannot be ruled out is that messages had been left by way of Instagram rather than by phone.
Another alternative is that the complainant may have been correct in her estimate bearing in mind the evidence that these phone records were generated based on charges. It was open to the jury to conclude that there may have been other missed calls that were not captured by Exhibit F.
The complainant disagreed with the suggestion that she had taken the applicant to a service station the following morning so that he could buy cigarettes. When later pressed she answered “I have no memory of it”. She was then asked “So you’re not saying it could not have happened, you just have no memory of it?” to which she replied “I just have no memory of it, I just forget everything”. In addition, the complainant did not concede that it was possible that she had seen her then boyfriend, CJ, on his way to work as they drove to the service station, answering “Not really. I feel I would remember if that happened”. It is noted that the applicant did not mention having seen CJ in his ERISP.
Both these matters raised credit issues, which the jury were in the best position to resolve.

Continued contact

Contrary to the assertion made by the applicant, the complainant did not agree that she had contacted the applicant by phone unprompted on 31 August 2017. When the call was raised with her in cross-examination, she asked “Was this after any missed calls?” and then said “I don’t – I don’t recall the phone call. I recall a phone call when we spoke about J moving to London and that’s all I can recall. I can’t tell you if that was the phone call, I’m not sure. I recall getting missed calls from him often” (T107.1).
The lengthier call on 14 October 2017 was a call initiated by the applicant. The complainant identified this as the “[J] moving to London” call she had previously referred to. As to whether the complainant told the applicant during the call on 31 August 2017 that she had been offered early acceptance into the University of Wollongong she said “I’d say so. I remember telling everyone. I was very excited. I was very happy”. Inferentially, it was open to the jury to accept that this was the call on 31 August 2017 to which the complainant’s attention was drawn in cross-examination. It fits neatly with the date on which the complainant received notification that she had been accepted into the University of Wollongong.
The significance of these two calls was to be assessed in light of the fact that contact between the applicant and the complainant was to some extent inevitable because they were both still attending the school, as well as the fact that she had resolved not to report the matter.
In any event, it is clear from Exhibit F that the further contact between the complainant and the applicant after 31 March 2017 was very limited. As indicated, it occurred in circumstances where the complainant remained a student of the high school and the applicant remained an employee of that same school and they would continue to see each other at school in that capacity. The further contact has to be understood in that context, as well as in the context of the complainant still being a young woman aged 17.
When one looks at Exhibit F, there was no contact between the complainant and the applicant by telephone between 1 April 2017 and 31 August 2017, i.e. a period of five months. Thereafter, the only telephone contact between them was that on 14 October 2017 being the “[J] going to London” telephone call initiated by the applicant which lasted for approximately 47 minutes. Despite the applicant’s attempts to suggest that the complainant was infatuated with him, except for the call on 31 August 2017, all of the other calls were initiated by the applicant.
In those circumstances, it was well open to the jury to accept the evidence of the complainant on this issue.

Balance of issues relied upon by the applicant

The applicant submitted that the complainant’s evidence that he sent a message to her phone before she arrived at the Colo Vale property was shown by Exhibit F to be a deliberate lie. In support of that submission, the applicant relied upon the fact that there was no record in Exhibit F concerning a text by him to her. He also submitted that the purported request by him that she drive him to Berrima was patently false because that would mean that his car would be left behind at Colo Vale.
There is no issue that there is no text message of the kind described by the complainant in Exhibit F. Equally, however, we know that there is no issue that there was communication in written message form between the applicant and the complainant on the evening of 31 March 2017 via Instagram. It was well open to the jury to conclude that the complainant was honestly mistaken in her evidence that the applicant sent that message to her phone as distinct from it being sent to her by Instagram.
The evidence taken as a whole does not compel the conclusion that the complainant’s evidence that the applicant sent a message to her phone before she arrived at the Colo Vale property was a deliberate falsehood. The complainant and the applicant had exchanged messages via Instagram earlier on the same evening. Notably, the applicant made exactly the same mistake in his ERISP. When asked if he recalled giving the complainant instructions about where he was and how to get there, he said “I assume I told her in this text message”. Exhibit F shows that there were no text messages exchanged between them on that evening (ERISP A.305).
The complainant gave evidence in cross-examination (T64.37) where she said “I remember him texting me at one point. That’s how I got his phone number.” It may well be that is how the complainant came to make an honest mistake. It is plain that the complainant did get the applicant’s mobile number that evening because we know from Exhibit F that he used it to call her at 2:44am when he left a voicemail message.
It is also noteworthy that in Exhibit F at para 2 on page 2, there is no record of any telephone communication between the applicant and the complainant before 31 March 2017 or after 17 October 2017. That lends some support to the complainant’s evidence as to how she came to have the applicant’s mobile phone number which plainly she did and he clearly had hers. That is something that the jury had available when considering the evidence that was given by the complainant.
The applicant submitted that the complainant’s evidence that he asked her to drive him home (to Berrima) from Colo Vale was illogical because his car would still be at Colo Vale. That submission should not be accepted. It assumes that the applicant, who was significantly intoxicated, was acting rationally. It also overlooks the possibility that the request was a ruse to get the complainant to attend so that he could have sexual intercourse with her. Further, based on an answer given by the applicant in his interview he had been intending to go home that evening but was too drunk to drive (ERISP A.352).

“The Court should keep in mind concerns which have been expressed where error is said to arise based upon interchanges between the Bench and counsel during submissions: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475; [32].”

This passage was cited with approval in Gibson v Regina [2019] NSWCCA 221 at [80] by Bathurst CJ as follows:

“The other complaint raised under Ground 2 relies on an error disclosed in the transcript of the proceedings on sentence. The sentencing judge had at one stage during submissions stated that ‘it would be a courageous move to consider this just a blip on the radar’. The difficulty is that those words do not appear in the Reasons for Sentence. This Court has stated on many occasions that the error is to be found in the Reasons for Sentence and not in the transcript. As Johnson and Bellew JJ stated in Hampton v R [2014] NSWCCA 131 at [23] (Gleeson JA, Price and Garling JJ agreeing):
‘The Court should keep in mind concerns which have been expressed where error is said to arise based upon interchanges between the Bench and counsel during submissions: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475; [32]. These grounds also appear to strain the limits of permissible grounds of appeal as explained in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-478; [79]-[82]’.”

That is not to say that this Court can never have recourse to the transcript of the proceedings on sentence in order to determine a ground of appeal. One example where it is usually appropriate to do so is where a denial of procedural fairness is raised: see Refaieh v R [2018] NSWCCA 72 at [16].
Turning to his Honour’s finding [41], I am satisfied that there is an internal inconsistency giving rise to uncertainty on this issue. First, his Honour clearly stated that he accepted Mr Lloyd’s submissions as to the relevant finding. Secondly, Mr Lloyd’s submission (extracted above at [208]) was that the objective seriousness was at the bottom of the range. Thirdly, what his Honour actually said was that he accepted Mr Lloyd’s submissions that the offences were “towards the low end of the range of objective seriousness for each offence”. This cannot be an acceptance of the finding as set out in writing because his Honour needed clarification of that in order to properly understand it. That clarification was that Mr Lloyd meant “bottom of the range”.
Even having regard to this Court’s repeated statements urging caution when going beyond the terms of the Remarks on Sentence to establish error, I am satisfied what his Honour found at [41] of his ex tempore reasons, when considered in the context of his reasons as a whole, as well as the aggregate sentence ultimately imposed, was that the offences were “at the bottom of the range”.
This finding as to objective seriousness was made having regard to the following factors:

The respondent was not only a teacher at the victim’s school but also her appointed mentor;

The offences constituted a gross abuse of the position of authority;

The victim was 17 years old. Age is not an element of any of the offences, thus, it was a matter that enhanced their objective seriousness;

The incident lasted for about 15 minutes from the end of count two. There were repeated acts. The penile-vaginal intercourse lasted about five minutes. This was not a “short period”;

There was a significant degree of physical contact with multiple acts; and

Counts 2, 3, 5 and 7 occurred in circumstances where the respondent had prevented the victim from leaving the home. He did this in two ways: by locking the front door and removing the key and also by taking her car keys from her.

As against these factors, there were no threats of violence or actual violence used and his Honour was not satisfied of any planning or grooming. Nor were any threats made to the victim afterwards not to tell anyone.
Despite this court’s reluctance to interfere with a primary judge’s finding of objective seriousness, I am satisfied that in this case it was not open to his Honour to find that the objective seriousness of the three offences contrary to s 61J of the Crimes Act and the two offences contrary to s 61M(1) of the Crimes Act were at the bottom of the range of seriousness for offences of their type.
His Honour observed during the proceedings on sentence in the passage extracted above at [209] that it was not “critical” to place the seriousness of the offending on any range based on cases such as “McDowell”. It is to be presumed that his Honour was referring to the decision in McDowall v R [2019] NSWCCA 29 where Adamson J (with whom Hoeben CJ at CL and Schmidt J agreed) observed the following at [35]-[36]:

“This Court, by reference to [Muldrock v The Queen] has observed that there is no obligation to ‘classify’ the objective seriousness by reference to some scale: Sharma v R [2017] NSWCCA 85 at [63] (RA Hulme J, Beazley P and Walton J agreeing). The imposition of any such obligation would not assist in the transparency of the reasons for sentence in any event. As Basten JA (Beazley P and Wilson J agreeing) observed in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [82]:
‘[A]lthough it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as ‘near the top of the low range’) there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range.’

The requirement to give reasons for an assessment of objective seriousness cannot be satisfied by the use of words such as ‘mid-range’ or ‘high’ or ‘low’, without more, although these words may often be used in the context of an evaluative description of the offending conduct which fulfils the requirements enunciated in Muldrock v The Queen. What is required is that the judge ‘identify fully the facts, matters and circumstances’ which bear on the sentence imposed, including those which go to objective seriousness.”

It was necessary for his Honour to make a finding of objective seriousness with respect to each of the offences. It is to be accepted that his Honour identified the facts, matters and circumstances which were relevant to that finding. The difficulty is that in making the finding in terms of “accepting” the respondent’s submission, a degree of uncertainty was introduced as to his Honour’s actual finding. Despite this, for the reasons I have already stated, I am satisfied that his Honour’s assessment was that they were all “at the bottom of the range of objective seriousness” and that finding was not one open to him in this matter.
I would uphold this ground.

Patent error established: need to consider manifest inadequacy?

The Crown relied upon the decision of Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [33] as authority for the proposition that where specific error has been found on a Crown appeal (as I have found here) the court does not need to go on to consider a ground of manifest inadequacy, although the potential inadequacy of the sentence is “a factor to be addressed both in resentencing and considering whether to resentence”. I do propose to consider the ground of manifest inadequacy and, for reasons I provide below, I am satisfied that the aggregate sentence imposed is manifestly inadequate. Despite this, I feel compelled to state that I do not accept the Crown’s written submission in this matter that, as a general proposition, [33] of the decision in DPP v Burton is authority for the proposition that this Court would interfere to increase a sentence in a Crown appeal even if it was not manifestly inadequate.
In DPP v Burton, this Court (Basten JA, with whom Rothman and Cavanagh JJ agreed) considered a Crown appeal brought by the DPP under s 5D of the Criminal Appeal Act. At [3] his Honour observed that the DPP “challenges the adequacy of the sentence”. The respondent in that matter had been placed on a community correction order for a period of 3 years, pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) for an offence of sexual assault without consent contrary to 61I of the Crimes Act. That offence carries a maximum penalty of 14 years imprisonment and a SNPP of 7 years.
In support of its claim of inadequacy, the DPP relied upon both patent and latent error. Patent error was conceded by the respondent to the appeal and accepted as error by the court; the sentencing judge had held that the moral culpability of the offender was reduced by his self-induced intoxication contrary to s 21A(5AA) of the Sentencing Act. Following acceptance of that concession, Basten JA observed the following at [33]:

“Although the Director alleged as a third ground that the sentence was manifestly inadequate, it is not necessary to consider that ground in circumstances where a specific material error has been identified. On the other hand, the potential inadequacy of the sentence is, of course, a factor to be addressed both in resentencing and considering whether to resentence.”
(Emphasis added.)

The court then went on to dismiss the appeal in the exercise of the residual discretion. In doing so, there was no finding that the sentence was manifestly inadequate, only that it was “exceptionally lenient” and “merciful” (at [37]).
The statement of principle by Basten JA in DPP v Burton at [33] is derived from the decision of French CJ and Gageler J in CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (“CMB”). I shall consider that judgment further below but, before I do, it is helpful to briefly note the guiding principles applicable to the bringing of Crown appeals.
Section 5D was originally enacted in 1924^[1]. It permitted the Attorney-General to appeal to this Court against any sentence imposed by the Supreme Court or the Court of Quarter Sessions. The reference to the latter court was changed in 1975 to the District Court.^[2] Subsequently, the names of both courts were removed and “court of trial in any proceedings to which the Crown was a party” was added.^[3] Following the creation of the position of Director of Public Prosecutions in NSW in 1986, he or she was permitted to exercise appeal rights under the section as well.^[4]
1. Section 33 of the Crimes (Amendment) Act 1924 (NSW).
2. Section 5(d) of the District Court (Amendment) Act 1975 (NSW)
3. Sch 1 (5) Criminal Appeal (Crimes) Amendment Act 1979 (NSW).
4. Schedule 1(4) of the Criminal Appeal (Amendment) Act 1986 (NSW)
The scope of s 5D was considered by the High Court in Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44. Barwick CJ described s 5D in the following, oft-cited passage at 310:

“On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
(Emphasis added.)

This passage was cited with approval in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 300. Their Honours then went on to observe:

“The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle"”
(Emphasis added.)

In Everett v The Queen, McHugh J described the role of Crown appeals against sentence in this way at 306:

“The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that Court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.”
(Emphasis added.)

The decisions in Griffiths v The Queen and Everett v The Queen established that Crown appeals against sentence should only be brought to establish some matter of principle in the context of avoiding manifest inadequacy or inconsistency in sentences.
In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gleeson CJ and Hayne J observed the following in relation to Crown appeals:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 French CJ, Crennan and Kiefel JJ cited the passage from Barwick CJ’s judgment in Everett with approval and then added the following:

“That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the ‘residual discretion’.”
(Emphasis added.)

In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the High Court considered an appeal from a decision of this Court allowing a Crown appeal and increasing the sentence. Complaint was made that there had been no finding of manifest inadequacy before doing so and nor had the residual discretion been exercised. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed this at [24] (footnotes omitted):

“The Director submits that it is implicit in the reasons of the Court of Criminal Appeal that the Court concluded that the sentence for the offence against Mr Gould was manifestly inadequate. The difficulty with acceptance of the submission is that the Court expressly refrained from making that assessment. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal's assessment of the appropriate sentence and Judge Lerve's assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve's discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In that event, the Court was required to consider whether the Director's appeal should nonetheless be dismissed in the exercise of the residual discretion. The Court of Criminal Appeal did not decide that the sentence for the s 33(1)(b) offence was manifestly inadequate. The Court of Criminal Appeal did not consider the exercise of the residual discretion. It follows that the appeal must be allowed.”
(Emphasis added.)

In CMB, the High Court considered the question of the onus of proof in relation to the exercise of the residual discretion in Crown appeals. It found, unanimously, that the onus is on the Crown to persuade the court that the residual discretion should not be exercised in a Crown appeal once error is shown. French CJ and Gageler J stated the relevant principles in relation to the residual discretion this way at [32]-[33]:

“Section 5D of the Criminal Appeal Act serves the dual function of conferring capacity on the Attorney General or the DPP to appeal against a sentence pronounced by a court of trial in proceedings to which the Crown in right of New South Wales was a party, and of conferring power on the Court of Criminal Appeal in such an appeal to impose a different sentence. That power is conferred by the concluding words of s 5D(1) in terms that ‘the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper’.
Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as ‘residual’ ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 37)1. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.”
(Emphasis added.)

Their Honours went on at [35] to cite with approval Barwick CJ’s statement of principle in Griffiths v The Queen at 310, and then added the following:

“With the clarification that the reference to ‘matter of principle’ by Barwick CJ ‘must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards’ (Everett v The Queen at 300) , his Honour's explanation of the nature of an appeal under s 5D has since been said to represent ‘general and authoritative guidance to the Courts of Criminal Appeal of this country’ (Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 234) . It expresses the ‘limiting purpose’ of an appeal under s 5D, and in so doing provides ‘a framework within which to assess the significance of factors relevant to the exercise of the discretion’ Green v The Queen at [66].”

In CMB, Kiefel, Bell and Keane JJ acknowledged the role of the prosecutor to avoid “appealable error” at [64] (footnote omitted):

“…the prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting.”
(Emphasis added.)

There is nothing in the judgment of French CJ and Gageler J in CMB at [33] to suggest that in an appeal brought under s 5D of the Criminal Appeal Act, this Court can intervene and impose a higher sentence without first being satisfied that manifest inadequacy was established. Such a proposition would be inconsistent with Everett v The Queen which French CJ and Gageler J expressly endorsed in CMB at [35]. Although it is to be accepted that their Honours stated (at [33]) that before the residual discretion comes to be exercised either latent or patent error must be established, their Honours did not go on to say anything to the effect that an appellate court could, after declining to exercise the residual discretion, increase a sentence that was not manifestly inadequate.
I raised this issue with counsel for the Crown on the second day of the hearing of this appeal and the following exchange took place:

“ADAMS J: I’m sorry to press you on this. When you submit it would be very difficult for the Crown to persuade this Court to interfere and increase the sentence if it was not considered to be one that was manifestly inadequate can you envisage an example when the Court would be invited to do so?
CROWN: I’m not sure that I can on my feet to be honest.
...
ADAMS J: I just wanted to clarify that the Crown is not relying upon this decision of Basten JA to suggest that this Court would intervene and re-sentence in the exercise, or would not exercise [the] residual discretion and increase the sentence, even if not satisfied that it was first manifestly inadequate.
CROWN: I don’t make that submission in this case but I would not like to bind the Crown more generally.”

For my part, it seems doubtful that this Court would ever decline to exercise its residual discretion and go on to intervene to increase a sentence in a Crown appeal before first being satisfied that the sentence imposed was manifestly inadequate.
For completeness, I note that since the Court reserved its decision in this matter the ACT Court of Appeal has considered the same question in R v Ralston [2020] ACTCA 47 in the context of s 24(1)(b) and s 28(5) of the Federal Court of Australia Act 1976 (Cth) (which is in different terms than s 5D of the Criminal Appeal Act). In R v Ralston, Mossop J and Murrell CJ (Loukas-Karlsson J in dissent on this point) considered the decisions of the High Court in which principles pertaining to Crown appeals have been considered including Griffiths v the Queen, Everett v the Queen, Green and Quinn v The Queen and CMB v The Queen, to which I have already referred. Their Honours also referred to the decision in DPP v Burton at [75] in these terms:

“….Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [6] and [33] Basten JA (with whom Rothman and Cavanagh JJ agreed) held that it was not necessary to consider the ground of manifest inadequacy in circumstances where ‘a specific material error has been identified’: at [33]. His Honour said (at [6]): ‘The power of this Court to intervene and resentence the offender is engaged by any material error’. His Honour recognised that the potential inadequacy of the sentence would be a factor to be addressed in deciding whether to resentence.”

Their Honours went on to state the following proposition at [84]:

“In a Crown sentence appeal where specific error is found it is not appropriate to impose a judicially created additional requirement that the sentence be manifestly inadequate in order for the court to interfere with the sentence.”

Although the relevant statutory provision in the ACT differs from s 5D of the Criminal Appeal Act, to the extent that that decision considers the same High Court decisions as I have herein, I am respectfully unable to agree with their Honours’ general proposition that an intermediate appellate court could increase a sentence the subject of a Crown appeal even if it is not manifestly inadequate.

Ground 3: The sentence pronounced was manifestly inadequate

The Crown submissions

The Crown submitted that the sentence was manifestly inadequate, in part, because of the trial judge’s failure to properly characterise the objective seriousness of the respondent’s offending. The Crown suggested that his Honour had impermissibly lessened the objective seriousness of the offending by considering extra-curial punishment of the offender as well as his “strict” bail conditions.
Further, the Crown submitted that his Honour had extended unnecessary leniency to the respondent because of the COVID-19 pandemic. The Crown submitted that his Honour was entitled to find that the conditions of the respondent’s incarceration would be more onerous but no more, especially given that there was no evidence before the court about changes to custodial conditions caused by the pandemic.
Finally, the Crown noted that there was no notional accumulation in the non-parole periods and just six months accumulation in the head sentences and little weight was given to general deterrence.

Respondent submissions

In response, the respondent submitted that matters of weight are quintessentially matters for the sentencing judge at first instance. Further, in relation to accumulation, the respondent submitted that it was open for his Honour to impose the sentence that he did given that the offending was “properly regarded as a single episode of criminality”.
The respondent submitted that it was an “unusual” case given that his Honour’s finding that each offence fell within the low end of the range of objective seriousness and his finding that there were no aggravating factors (including statutory aggravating factors).
The respondent also submitted that the sentence was not manifestly inadequate because of his mental health issues and history of trauma. His prospects of rehabilitation were assessed as good (conditional on abstinence from alcohol) and he was receiving treatment for a mood disorder. He had good character given his limited prior convictions.
The respondent further submitted that his onerous bail conditions, extra-curial punishment (namely losing his position as a teacher) and the hardship caused by COVID-19 were all relevant factors to be taken in account when considering manifest inadequacy.

Consideration Ground 3

I am satisfied in the present matter that the aggregate sentence imposed is manifestly inadequate.
I have already enumerated the factors relevant to the objective seriousness of the offences above at [219].
The respondent was entitled to have a number of mitigating factors considered in his favour. His Honour gave all of them significant weight. These factors include:

That the respondent has lost his career as a teacher. This was a form of extra-curial punishment;

That the respondent had been on strict bail conditions;

The potential negative impact of COVID-19 (the respondent was sentenced on 9 April 2019); and

The respondent’s mental condition.

It was appropriate for his Honour to have regard to all of these factors. Despite this, I accept the Crown submission that his Honour placed disproportionate weight on them such as to impose a manifestly inadequate sentence. On this issue I am unable to accept the respondent’s submission that the Crown was not permitted to rely upon matters of weight to show error. Although it is not permissible to rely upon a ground of appeal asserting that too much or too little weight was placed on a particular factor, the question of weight is a relevant factor when considering fifth limb error under House v King (that the sentence is unreasonable or plainly unjust being either manifestly excessive or manifestly inadequate): see Harkinv R [2020] NSWCCA 242 at [44]-[45].
The respondent could not be afforded any discount for the utilitarian value of any plea. It was clearly his legal right to defend the charges but, in doing so, he was not entitled to any discount on sentence. Nor was there any evidence that he was remorseful. Although it was common ground that he was intoxicated at the time of the offending, that factor cannot be taken into account as a mitigating factor on sentence: s 21A (5AA) of the Sentencing Act, see DPP v Burton at [4].
By imposing an aggregate non-parole period of only 22 months for five offences on a teacher who had non-consensual sexual intercourse with his mentoree (who was 20 years younger than him), after locking the door and preventing her departure, the sentencing judge gave insufficient weight to the need for general deterrence and imposed an aggregate sentence that was manifestly inadequate.
I would uphold this ground as well.

The residual discretion

In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act the court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen at [1], [26]; Bugmy v The Queen at [24]. The Crown must negate any reason why the residual discretion of the court not to interfere should be exercised: Green v The Queen; Quinn v The Queen at [36].
The Crown submitted that this matter is one in which this Court should intervene because the sentencing process was marked by clear error and the interests of justice required the imposition of an appropriate sentence, especially when the offending was so serious.
The respondent submitted that this matter was one where the residual discretion should be exercised because the circumstances of offending were so “peculiar” and limited to their facts that the decision would be of limited precedential value. Further, the respondent submitted that the forensic conduct of the Crown contradicted its strategic decisions below and that the residual discretion should not fail to be exercised with regard to matters of weight.
I have had regard to these matters as well as the additional matters raised in the affidavit evidence filed by the respondent on the question of the exercise of the residual discretion and in the event of re-sentence (summarised below).
I am not satisfied that this is a case in which the court should exercise the residual discretion.

Re-Sentence

A number of affidavits were relied upon in the event of re-sentence.
An affidavit of Pearl Beaumont of 20 August 2020 was filed on behalf of the applicant. This detailed some of the problems that the applicant has had in custody, including being in lockdown for 18-19 hours a day. He is worried about catching Hepatitis C. The calls that he can make to his partner and parents are short and can be distressing. Ms Beaumont deposed that the applicant has asthma and a history of bronchitis and pneumonia. He feels anxious about his own health if there were to be an outbreak of COVID-19.
An affidavit of Lindy Louise Hazel Babb sworn 20 August 2020 was also tendered. Ms Babb is the applicant’s mother. She indicated that she was aware that the applicant is an alcoholic and is committed in assisting with his treatment. She provided evidence about the difficulties in visiting her son that have been caused by COVID-19. She stated that since mid-August 2020 she and her husband have had a total of five phone calls from the applicant. The applicant told his parents that he hears "the sound of a skull being smashed" at least daily and that there have been two suicides at the correctional centre since he has been there.
The applicant tendered a letter from Mr Raymond Hudd, Consultant Psychologist, dated 10 June 2020. In the letter, Mr Hudd indicated that the applicant’s mental health had deteriorated significantly since returning to custody. The applicant was disturbed by cell mates with mental health issues and by fights in the yard. A further source of anxiety for him is the prospect of physical assault by other inmates if they learn of his status as a sex offender. His partner miscarried twins while he was incarcerated.
I have had regard to these matters and the objective and subjective factors I have already recounted. As for the assessment of objective seriousness, I would assess them as being just below the mid-range of objective seriousness for the reasons I have set out above at [219]-[223]. I do not accept, contrary to the approach taken by the sentencing judge, that the sentence should be significantly mitigated because of the impact of COVID-19. There is currently no community transmission in NSW and, contrary to what was anticipated in April 2020, NSW Corrective Services was able to prevent the spread of it in correctional centres. Despite this, it is to be accepted that the respondent will serve his time in custody in more onerous conditions given the limited family contact available to prisoners as part of the response to COVID-19. I would mitigate the aggregate sentence to some extent on that basis.
I would allow for a significant degree of notional concurrence as between the two indecent assaults and the other three offences, but some degree of notional accumulation is required. Count 1 involved fondling on top of the victim’s underwear, Count 2 involved touching of the victim’s breasts and body, Count 3 involved digital penetration, Count 5 involved cunnilingus and Count 7 involved penile/vaginal intercourse.
His Honour made a finding of special circumstances without specifying the basis for doing so. I would make the same finding on the basis of the applicant’s mental health problems and the ongoing needs concerning his alcoholism. He relapsed a number of times whilst on bail and will need assistance in this regard upon his release on parole.
I am required to bear in mind both the maximum penalty and the standard non-parole period as statutory guideposts when considering the appropriate aggregate sentence to be imposed. I have identified the factors relevant to the sentence as set out above. It remains to determine the appropriate aggregate sentence.
The respondent was briefly on appeal bail between 25 May and 16 June 2020. I have had regard to the time already served less that period of time in the aggregate sentence I would impose.
The orders I would make are:

The appeal is allowed.

The sentence imposed on the respondent by Williams SC DCJ on 9 April 2020 is quashed.

In lieu thereof, the respondent is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW) of imprisonment of 5 years, 6 months to commence on 10 February 2020 with a non-parole period of 3 years to expire on 9 February 2023.

Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:

Count 1:   20 months with a non-parole period of 12 months.
Count 2:   2 years with a non-parole period of 15 months.
Count 3:   2 years and 6 months with a non-parole period of 22 months.
Count 5:   3 years with a non-parole period of 2 years.
Count 7:   3 years and 6 months with a non-parole period of 2 years and 6 months.

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Endnotes

Amendments

02 December 2020 - Minor formatting corrections

Decision last updated: 02 December 2020

Medium Neutral Citation:	Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
Hearing dates:	4 September 2020; 25 September 2020
Decision date:	02 December 2020
Before:	Hoeben CJ at CL at [1], Button J at [160] N Adams J at [162]
Decision:	CONVICTION: (1) Leave to appeal against conviction is granted. (2) The appeal against conviction is dismissed. SENTENCE: (1) The appeal is allowed. (2) The sentence imposed on the respondent by Williams SC DCJ on 9 April 2020 is quashed. (3) In lieu thereof, the respondent is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of imprisonment of 5 years, 6 months to commence on 10 February 2020 with a non-parole period of 3 years to expire on 9 February 2023. (4) Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: Count 1: 20 months with a non-parole period of 12 months. Count 2: 2 years with a non-parole period of 15 months. Count 3: 2 years and 6 months with a non-parole period of 22 months. Count 5: 3 years with a non-parole period of 2 years. Count 7: 3 years and 6 months with a non-parole period of 2 years and 6 months.
Catchwords:	CRIMINAL LAW – conviction appeal – two counts of aggravated indecent assault, three counts of aggravated sexual intercourse without consent – circumstance of aggravation being “under authority” – conviction after trial by jury – victim school pupil – offender school teacher – whether verdicts of guilty were unreasonable and cannot be supported having regard to the evidence – credit and reliability of victim challenged – whether it was open to the jury to be satisfied beyond reasonable doubt that offender was guilty – leave to appeal against conviction granted – appeal against conviction dismissed – CRIMINAL LAW – appeal against sentence - Crown appeal - assessment of objective seriousness - respondent's knowledge of lack of consent - knowledge rather than recklessness - characterisation of objective seriousness as “towards the low end of the range” - whether sentence manifestly inadequate
Legislation Cited:	Crimes Act 1900 (NSW) – ss 61J(1), 61M(1), s 73(2), 578A Criminal Appeal Act 1912 (NSW) – s 5(1)(b) Criminal Procedure Act1986 (NSW) – s 294 Evidence Act 1995 (NSW) – s 44
Cases Cited:	Antouny v R [2020] NSWCCA 203 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 300 Gibson v Regina [2019] NSWCCA 221 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 Harkinv R [2020] NSWCCA 242 Hawi v R [2014] NSWCCA 83 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 KSC v R [2012] NSWCCA 179 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Maughan v R [2020] NSWCCA 51 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Mulato v R [2006] NSWCCA 282 Neto v R [2020] NSWCCA 128 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 R v Kitchener (1993) 29 NSWLR 696 R v Manojlovic [2020] NSWDC 221 R v Ralston [2020] ACTCA 47 R v Tolmie (1995) 37 NSWLR 660 Refaieh v R [2018] NSWCCA 72 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Taitoko v R [2020] NSWCCA 43
Category:	Principal judgment
Parties:	Alexander Manojlovic – Applicant/Respondent Regina – Respondent/Applicant
Representation:	Counsel: I Lloyd QC/ T Bicanic – Applicant/Respondent M Millward – Respondent/Applicant Solicitors: P Beaumont – Applicant/Respondent Solicitor for Public Prosecutions – Respondent/Applicant
File Number(s):	2018/215178
Publication restriction:	Section 578A of the Crimes Act 1900 (NSW) prevents the publication of any matter which is likely to lead to the identification of the complainant.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Manojlovic [2020] NSWDC 221 Date of Decision: 09 April 2020 Before: Williams SC DCJ File Number(s): 2018/215178