Massaquoi v The King

[2024] NSWCCA 125

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Massaquoi v R [2024] NSWCCA 125

Hearing dates:

17 June 2024

Date of orders:

17 July 2024

Decision date:

17 July 2024

Before:

Mitchelmore JA at [1];
Garling J at [2];
Wilson J at [3]

Decision:

(1) Refuse an extension of time in which to bring an application for leave to appeal against the sentence imposed upon the applicant on 15 March 2021.

Catchwords:

CRIME – appeal against sentence – s 66EA offence – jury trial – fact finding after trial – obligation to find facts consistent with the verdict of the jury – where sentencing judge accepted the evidence of the complainant as reliable – no basis advanced by applicant before sentencing judge to distinguish aspects of the complainant’s evidence – sentence imposed on the basis that whole of complainant’s evidence accepted – application raising a point not made at first instance – delay in bringing application significant and not fully explained – extension of time refused

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes Act 1900 (NSW), ss 61J, 61DE, 66DB, 66EA, 578A

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Appeal Rules 1952 (NSW)

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Criminal Procedure Act 1999 (NSW), s 150

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1

Cases Cited:

Burr v R [2020] NSWCCA 282

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37

Edwards v R [2009] NSWCCA 1999

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

KMC v Director of Public Prosecutions (SA) (2020) 94 ALJR 415; [2020] HCA 6

MK v R; RB v R [2023] NSWCCA 180

R v M, DV [2019] SASCFC 59

RB v R [2022] NSWCCA 142

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Xerri v The King [2024] HCA 5

Zreika v R [2012] NSWCCA 12

Category:

Principal judgment

Parties:

Sandy Massaquoi (Applicant)
Rex (Respondent)

Representation:

Counsel:
B Neild SC (Applicant)
B Hatfield SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the Director of Public Prosecutions (Respondent)

File Number(s):

2019/00071668

Publication restriction:

Statutory non-publication order applies in relation to the complainant.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 March 2021

Before:

J Smith SC DCJ

File Number(s):

2019/71668

JUDGMENT

1. MITCHELMORE JA: I agree with Wilson J.

2. GARLING J: I agree with Wilson J.

3. WILSON J: The applicant, Sandy Massaquoi, stood trial before the District Court from 7 September 2020 to 25 September 2020 upon an indictment that charged him with maintaining an unlawful sexual relationship with a child, contrary to s 66EA of the Crimes Act 1900 (NSW), together with several other charges brought in the alternative to the principal offence. The jury returned a verdict of guilty to the s 66EA offence, a crime that carries a maximum sentence of life imprisonment. The indictment particularised the offence in these terms:

That [the applicant], between 6 July 2013 and 9 September 2016, at Condell Park in the State of New South Wales, did maintain an unlawful sexual relationship with [the complainant], then a child under sixteen years of age, in which [the applicant] engaged in the following two or more unlawful sexual acts:

Penile-vaginal intercourse with the complainant

Placing the complainant’s hand on his penis and moving his hand up and down to masturbate his penis

Masturbating himself in front of the complainant

Engaging in fellatio with the complainant

Attempted penile-vaginal intercourse with the complainant.

4. On 15 March 2021 the applicant was sentenced to a term of imprisonment of 16 years with a non-parole period of 10 years, commencing on 6 March 2019, that being the date on which the applicant was arrested and remanded in custody (where he remained).

5. The application to this Court, brought pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), has a rather chequered history; it is well out of time and an extension of time is required if it is to be pursued. Leave to appeal is also necessary. The sole ground of appeal advanced against the sentence imposed is a complaint that the trial judge failed to make “evidence-based findings of fact” concerning the extent of the offending.

The Proceedings before the District Court

6. As noted, this matter proceeded as a trial before a jury. The complainant, whose name is anonymised here as “Ms A”, in compliance with s 578A of the Crimes Act and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)¹, was required to give evidence. Her evidence began on 9 September 2020, that being the second day of trial. Because of the nature of the applicant’s complaint to this Court, it is necessary to set out the evidence in some detail.

7. Ms A told the jury that she had been born in Guinea in September 2000, and came to Australia with her parents in 2007. After her parents separated in 2010, she moved with her mother, referred to here as Ms B, to Sydney, after a time coming to reside at an address in Condell Park. The applicant, who had entered a relationship with Ms A’s mother, was a regular visitor to her home thereafter, although he never lived with the family. Ms A came to see him as a father figure, and she addressed him as “Dad”.

8. In June 2011 Ms B gave birth to a daughter; the child’s father was the applicant. In early July 2013, twins were born to the couple. The day after the birth the applicant took Ms A and her younger sister to visit their mother and new siblings in hospital. Following the visit the applicant took the children to their home, where they dressed for bed. Ms A, who was 12 years old, went to bed, accompanied by her younger sister, who got into the bed with her.

9. At around 2 o’clock the following morning Ms A was woken by the applicant who came into her bedroom and removed the younger child from the bed, carrying her into another room. Ms A went back to sleep but was awakened some time later by the applicant tapping her on her shoulder. Ms A described to the jury how the applicant had got onto her bed, straddling her in a “froglike” position. She said that she asked the applicant what he was doing but he told her to be quiet. Ms A began to scream but the applicant silenced her by putting his hand over her mouth. Ms A told the jury,

“He said that if I kept screaming I was going to wake [younger sister] up and wake the neighbours up, they could hear us. So I started crying, because I felt like, I felt like no-one was going to help me. I didn’t have help.

Q. Did anything happen then?

A. Yes.

Q. What happened?

A. Sandy, he was wearing a shirt and boxers, and he took the blanket off, off of me. And then he, he used his right hand to hold my hands back like that, and then he’s put his left hand over my mouth so I could stop screaming. I could feel his penis, his penis got hard and he was brushing it against my vagina. And then he took his undies off and took mine off, and he kept rubbing his penis on my clitoris and, and then, yeah, he put his penis in my vagina. And I was crying. And he didn’t stop, he kept going.”

10. Ms A told the jury that what was done to her was very painful and she asked the applicant “Please, stop dad”. The applicant did not stop, continuing for a time before getting up, masturbating as he stood by the bed. Ms A said,

“I was just crying because like I was really shocked about like everything that happened. And I was really upset. I just, like I was crying then I noticed that, I was like bleeding. Yeah, I went to go, I got up and then Sandy came back in the room and he asked me if I was bleeding. […] he told me to go have a shower.”

11. After showering Ms A returned to her bedroom where she noticed that the applicant had changed the bed linen. She also found a sticky substance on the zebra pattern carpet in her bedroom, stepping into it. She went into her mother’s bedroom and locked the door. She lay crying for the remainder of the night. The next morning the applicant apologised to Ms A and begged her not to tell her mother about what he had done. She agreed. Her mother was discharged from hospital with her twins soon after. Ms A told the jury,

“My mum came. My mum was very happy and Sandy just like acted as if nothing happened and I was really sad. I remember like my mum even asked me like, “Are you okay? What’s wrong?” And I couldn’t tell her. And Sandy just kept following me around the house. If I was in the kitchen he would come in the kitchen and be like, ‘Oh please don’t tell your mum’ this and that, like the whole day, he was just like following me everywhere I went around the house. And he just kept begging.

Q. When you say “he kept begging” what did he say to you?

A. He kept saying, ‘Oh if you don’t tell your mum. If you tell your mum I’m going to get in trouble. I’m gonna go to gaol.’ This and that. Like, and he would be like you know, ‘Please don’t tell your mum. Please don’t tell your mum.’ Like, ‘Please forgive me. I’m not gonna do it again.’

Q. Physically how were you feeling at that time?

A. I was sore. Every time I went to the toilet it would hurt.”

12. After the birth of the twins Ms B moved interstate with them and her middle daughter, leaving Ms A in Sydney in the care of a family member for some months. When Ms B returned to Sydney with her and the applicant’s children, Ms A moved back to the family home. She said,

“That’s like when the continuous assault, like started taking place. Like if my mum wasn’t home, she went to the shops.

Q. When you say “continuous” what do you mean?

A. Like Sandy would force himself to sleep with me, to have sex with me, sexual intercourse.

Q. Just tell us what did he do to you?

A. It was he would use his penis and put his penis in my vagina. He would do that like; he would do that a lot of the time. Like it wasn’t like a thing that was like scheduled or anything but he would do that let’s say like this week, he’d do it once this week and then he wouldn’t do it next week. Or then he’ll do it three times next week and he won’t do it for like a month and then he’ll do it again and it just kept going on and on.”

13. The witness told the jury that the applicant sexually assaulted her regularly throughout 2013, 2014, 2015, and 2016. Although she could not give details of each individual assault, she was raped by the applicant, mainly in her bedroom, on multiple occasions in each of these years. Sometimes, the assaults occurred elsewhere in the house. Ms A deposed,

“[…] what would happen like to get away from him, I’d go to my mum’s room, because my mum’s room has a lock. So I’d sleep there with my siblings and just in the hopes that he won’t you know come in or do anything. So I’d lock the door and he would come in the room, open the door and come in the room and force himself on me”.

14. Generally, the complainant was positioned on her back during these attacks, but the applicant occasionally “manhandled” her, turning her onto her stomach, where the applicant,

“[…] put his penis in my vagina and - there was one point where he raped me and he was done, and then he put his semen on my chest.”

15. Although the assaults committed upon Ms A by the applicant were principally instances of penile-vaginal sexual intercourse, other acts also occurred. In 2014 when Ms A was in Year 8 at school, she was 13 and 14 years of age. The applicant told her he wanted to show her something new and, taking his penis out of his clothing, he began to masturbate. Grabbing the child’s hair, he pulled her head back and then took her hand and placed it on his penis. The applicant then,

“[…] tried to force - he told me to open up my mouth and then he tried to put his penis in my mouth.

Q. Did he say that to you, did he?

A. I can't recall what he said. Yeah, he told me to open my mouth. He said he was going to teach me something. He said he was going to teach me something, and he told me to open my mouth and then he put his penis in my mouth […] he was, like, grabbed my jaw and forced my jaw to open.”

16. The force the applicant used to open Ms A’s mouth was such as to cause her pain. With the applicant’s penis in her mouth, she began to feel as if she would vomit. She ran to the bathroom, where she was physically sick. Incidents such as this occurred “multiple times after that”. There were also multiple occasions when the applicant masturbated in front of Ms A.

17. On one occasion, when a Year 9 schoolfriend was staying at her home for a sleepover, Ms A was able to prevent the applicant from sexually assaulting her by threatening to scream loudly enough to wake her friend. Ordinarily, however, Ms A said that, as a 40 or 45 kilogram child against a much larger man of almost 40 years of age, she was helpless, and could only cry. On those occasions when she tried to fight the applicant, or screamed,

“He would tell me to, like, shut up, and then he would tell me to, like, stop screaming and stuff, and when he was done he would come start apologising, saying ‘I'm sorry’, this and that. And when I'd tell him, like, ‘I'm going to tell my mum’ and stuff, and Sandy would be like ‘They're going to come take the kids away from your mum.’ He would, like, degrade me and tell me that I'm basically shit with that. He knew how me and my mum were going to, like, not live without him and we'll be an embarrassment to the community. He would always say that stuff to me.”

18. In late 2016 or early 2017, after the complainant had turned 16 years old, and when she had begun working part-time, the applicant approached Ms A and tried to force himself upon her. She ran to the kitchen and, taking up a knife, told the applicant that she would stab him if he came near her. Sometime after that, when Ms A was at the library doing some schoolwork, her mother telephoned her and told her that the applicant had asserted that she was “out with a guy” acting “like a prostitute”. Ms A went home but left soon after and went to stay with school friends. She was reported missing, being found within days by police. It was after that that Ms A told her mother that the applicant had been sexually assaulting her since the birth of the twins.

19. A family meeting was called at a residence in Condell Park at which Ms A told members of her family and family members of the applicant that he “had been raping … and sexually assaulting [her]”. Although the applicant initially denied Ms A’s allegations, he soon admitted that they were true, although he did not apologise when told by his uncle to do so. A day or so later Ms A and her mother reported the matter to police.

20. The applicant’s case as put in cross-examination of Ms A over almost a full day was that she had lied about most things, even – given that she could not produce her birth certificate - as to her age. ^[1] It was put to her again and again that she was “making it up” and that her accusations were “a figment of [her] imagination”. Ms A maintained the truth of her evidence.

    1. Other witnesses will be similarly anonymised, for the same reason.

21. Evidence was also called in the Crown case from Ms A’s mother, Ms B; from a family doctor who spoke to Ms A after she made her complaint to her mother; and from family members who had attended the meeting involving the complainant and the applicant.

22. Ms B, in addition to giving evidence of Ms A’s date of birth, confirmed other disputed aspects of her evidence. For example, it was put to Ms A in cross-examination that, contrary to her evidence in chief as to clothing worn by the applicant from time to time, he never wore boxer shorts as underwear; and that the zebra patterned rug – upon which the applicant’s semen was detected – had been situated in her mother’s bedroom rather than hers. Whether Ms A used bed linen was also disputed. Ms B gave evidence of the applicant’s use of boxer shorts, and of the presence of the zebra rug in Ms A’s bedroom until a few weeks before Ms A made her complaint. She insisted that Ms A’s bed was made up with bed linen in 2013 and at other times. Ms B also confirmed that, when she was in hospital for the birth of her twins, the arrangement was for the applicant to care for Ms A and her half-sister at the children’s home, something the applicant disputed by the evidence that he gave in his case. Ms B told the jury about the occasion when Ms A stayed away from home, and the subsequent complaint she made to Ms B of having been “abused” and “raped” by the applicant over a period of years. Importantly, Ms B gave evidence of the family meeting at which Ms A gave an account of what the applicant had done, which the applicant acknowledged to be correct. She said that Ms A told those present,

“[…] that she was being raped by Sandy from the day I give birth to the kids, 2013, on 8 July, she was raped by Sandy and Sandy keep on raping her and abusing her”.

23. As to the applicant’s response Ms B said,

“[…] Sandy said, ‘Some of it is true, some of it is not true.’ And then [another attendee at the meeting] said, ‘What did you mean, by some is true, or some isn't true.’

Q. What did Sandy say?

A. And then he goes, ‘Okay, I'm sorry, maybe it's the way I put it. I did it.’ Then [Michael Pokawa] asked him again, ‘No-one is forcing you, no-one is pushing you, we want to know the truth, did you do it or not?’ And then he said, ‘I did it.’

Q. After Sandy said that, did Sandy do something?

A. Yes.

Q. What was it that he did?

A. And then he straight of goes on his knee and lied on my feet and said I should forgive him.”

24. Ms B deposed that the applicant said that “it was the work of the devil” and Ms A had seduced him. He also said that “men sometimes they don’t control themselves”. After consulting her family doctor Ms B reported the matter to police.

25. Ms C gave evidence that Ms A had told her “Sandy was raping her when she was 12 years old”, and that “Dad was abusing, sleep – raping me all along”. Ms C said that the applicant had been there at the time (AB376). At the meeting between the complainant and the applicant and others later the same day, Ms C said that Ms A repeated her statement. She said,

“And Sandy say, ‘Oh, some true, some not true.’ And [the applicant’s uncle] say, ‘Which one is true? Which one is not true? So you will go and say that to the police.’ And then he say, ‘Oh, maybe you didn’t understand me.’ He say, ‘Whatever [Ms A] say is true’.”

26. Ms C said that all those present at the meeting were upset, and each told the applicant how wrong his conduct had been. She rejected the proposition put to her in cross-examination that the applicant’s only response to Ms A’s allegation was to assert that it was a lie and leave the meeting.

27. Another witness present at the meeting, Ms D told the jury that, when confronted with the allegations made by Ms A, the applicant had gone to Ms B, knelt before her, apologised, and said it was “the work of the devil”. Ms D also rejected the proposition put to her in cross-examination as to the applicant’s response. She was firm in her evidence that Ms A had told them the applicant had been raping her, and the applicant had apologised for it to Ms A’s mother.

28. A further attendant at the meeting, Ms E, gave evidence consistently with that of earlier witnesses, telling the jury that Ms A had complained of the applicant raping her, “at the time the mother was in hospital”, and “not one time”. She denied a suggestion put to her in cross-examination that the applicant had not been present at the meeting.

29. The balance of the Crown case was supplied by two police officers involved in the investigation; the evidence is of no present significance.

30. The applicant was called as the first witness in his case, giving evidence on 15 and 16 September 2020. He gave the jury background detail of the formation of his relationship with Ms B, the separate living arrangements the couple had, and the births of their three children together. In his evidence in chief, he said that he had believed himself to have “a good normal relationship” with Ms A. He denied any kind of intimate or sexual contact with her, telling the jury that the zebra rug had been on the floor of Ms B’s bedroom when he was a visitor at his then partner’s home, and “maybe sometimes my semen would drop there”. He also told the jury that neither Ms A nor Ms B ever vacuumed, or cleaned the house, and their respective bedrooms were messy. He said Ms A’s bedroom was so messy that it was not possible to close the door because of objects left on the floor. As to the meeting at which Ms A made allegations of sexual abuse by him, the applicant said that she complained that he had “been sleeping with [her]”, and that he had been hurt by the allegation. He deposed that he told those at the meeting that Ms A was lying, and then walked out.

26. In cross-examination the applicant denied having sexually assaulted Ms A at any time. When asked about the first assault alleged against him, that which was said to have occurred shortly after the birth of his twin children, the applicant volunteered that Ms A and her sister had not been staying at Ms B’s home when Ms B was hospitalised for the birth, with arrangements made for the children to stay at the home of a family friend, RK. In effect, the applicant raised, for the first time and without notice, an alibi of sorts.

27. There followed discussion between his Honour and counsel as to locating the individual named by the applicant, and potentially recalling the complainant and Ms B to permit the applicant’s counsel to put to each the assertions made by the applicant in cross-examination as to the arrangements made for the care of Ms A and her sister whilst their mother was in hospital. The jury was sent away, and the trial adjourned whilst the witness RK was located. The following morning, 16 September 2020, the applicant filed an alibi notice pursuant to s 150 of the Criminal Procedure Act 1999 (NSW), although well out of time.

28. The applicant concluded his evidence that day, telling the jury that he had not been present at a meeting at Condell Park involving the complainant and her mother as they described. He said there had been a meeting at Ms B’s home, at which Ms A said that he had been sleeping with her, but that he had said she was lying and left.

29. The applicant’s uncle, Michael Pokawa, gave very short evidence in which he deposed that he had not attended a meeting on 7 September 2017. In cross-examination he said he did not know what had been said at the meeting, answering the vast majority of questions thereafter concerning what had happened at the meeting with “I don’t know”.

30. Another uncle, Joseph Pokawa, gave evidence that, on the evening on which the first sexual assaults were alleged to have occurred, after the hospital visit to see the new twins, the applicant had been in his presence, and they had left the hospital together to travel to Mr Pokawa’s home, where the applicant was then living. That same sequence of events was repeated the following day.

31. Mr Pokawa said that he did not attend a meeting in September 2017 concerning Ms A’s allegations against the applicant.

32. In cross-examination Mr Pokawa accepted that he had said in a signed statement made to police in 2018 that the applicant came to live with him only on 17 September 2017 (that being over four years after the first incident of sexual assault described by Ms A as occurring in July 2013). He explained the disparity between his evidence and his earlier police statement by reference to the fact that English was not his native language. When asked about what had transpired at the meeting it was suggested that he had attended, he responded, “I don’t know” or “I have no idea”.

33. Because of the alibi evidence adduced without notice to the court or prosecution, the Crown called a case in reply. Ms B was re-called and told the jury that she did not have any arrangement with RK for that person to take care of Ms A and her younger sister during the period when Ms B was hospitalised for the birth of her twins. She deposed that the applicant took her daughters home from the hospital and, from speaking to him over the telephone at the time, she understood that he was at her home with Ms A and Ms B’s middle daughter, caring for the children and cleaning her house. She rejected very firmly the suggestion that she was telling lies.

34. The following day Ms A was called in the Crown case in reply to permit counsel for the applicant to put to her that she had not been staying at her mother’s home during the days when her mother was in hospital in July 2013. When it was suggested to her that she and her sister had stayed at the house of RK in this period, she rejected the proposition. It was put to her that she was “making it up”, to which she replied:

“I’m not making it up. I’m not stupid. I know what happened. Sandy picked us, took us from the hospital, we went home to our house at [a named] Street and we slept there and that’s when Sandy raped me. I’ve never slept out. My mum would not let us sleep anywhere else. We didn’t have a babysitter. That’s why Sandy was at our house babysitting us. Looking after us while my mum was at the hospital.”

40. When counsel took the opportunity of the complainant’s re-call to again put to her that she had fabricated her allegations she responded,

“Why would I make up a story like this and I went to the police station on my 17th birthday to report this. I didn't even spend my 17th birthday with my friends or anything. I was at the police station reporting this and then out of my 20th birthday a month of court reporting this. Do you think I'm happy the way my life is going? I'm 20 years old, working full-time, trying to support my mum. Trying to support my mum because we don't have a father figure in our lives. With three kids you think I've really gone out of my way to make things up about someone that was supporting my mum and I?”

41. The final witness in reply was RK, who told the jury that she had been a good friend of the applicant’s, having come to know Ms B and her children through him. She told the jury there had been a period when she shared a house with the children’s aunt, and had sometimes seen them in that context, but that neither Ms A nor Ms A’s sister had ever stayed at her home overnight. By 2013 she was not living in the same house as the children’s aunt and was not seeing them. She said in cross-examination that it was impossible she had looked after the children for a couple of days in her home, but had forgotten it.

42. Following the close of the evidence the jury heard addresses from counsel and the trial judge summed up the case.

43. After the return of the verdict of guilty with respect to the s 66EA offence, the Crown tendered criminal histories held by New South Wales and Queensland with respect to the applicant. Whilst he had no convictions recorded against him in this State the applicant had been convicted of two offences of common assault interstate in 2009 and was fined without conviction for failing to appear before a Queensland court that same year.

44. Prior to the adjournment of this matter for sentence hearing, (then) counsel for the applicant raised the question of the facts to be found on sentence, asking his Honour, rather abruptly,

“You are going to make some findings, some factual findings, in relation to the particularisation of count 1. How do you propose to do that?”

45. He continued,

“Because, as you know, we’ve got masturbation on the one hand and, on the other, we have penile-vaginal, which, obviously, when one has regard to that, in terms of the spectrum of offending, it’s going to sit higher under, let’s say, masturbation. […] It’s going to have a significant impact on your sentencing discretion.”

46. His Honour asked the parties to file written submissions and a timetable was set for evidence on sentence to be filed.

The Crown Case on Sentence

47. At the sentence hearing on 14 December 2020 the Crown tendered (in addition to the criminal record referred to above) the applicant’s custodial history, a sentencing assessment report (“SAR”), and a Victim Impact Statement (“VIS”) prepared by Ms A.

48. The custodial history contained nothing of note. The VIS was read to the court by Ms A. She told his Honour of the severe impact that the applicant’s crimes had had upon her. She described childhood years where she had no control of her life, and time spent focused on “survival”, devising stratagems to prevent the applicant from isolating and sexually assaulting her. After disclosing the abuse to others Ms A said that she became a target of vitriol from persons who blamed her for destroying her mother’s relationship with the applicant, and taking away her siblings’ father. Her relationship with her mother has suffered greatly and Ms A felt the loss of it. She also described the fear of the applicant that she felt in the period following her complaint and prior to the applicant’s imprisonment. Ms A told the court that, one week prior to the applicant’s trial, she was admitted to hospital due to physical manifestations of post traumatic stress disorder. She felt suicidal at the time and continued to struggle with nightmares and flashbacks due to the trauma of the abuse.

49. For the preparation of the SAR the author spoke with the applicant, his girlfriend of two years, and a sister and uncle of the applicant. The applicant said he was supported in the community by his family, and his girlfriend and her family. He denied sexually assaulting Ms A and blamed her for “making the story up”. Noting that the applicant showed no insight into his offending and its consequences, the author of the SAR observed,

“He demonstrated no remorse for his offending behaviour and portrayed himself as the victim, stating that the offence ‘never happened’.”

50. Despite maintaining that denial, the applicant said he was willing to engage in behavioural intervention treatment to address his offending. He was assessed as presenting a “Medium-low risk of re-offending”.

The Applicant’s Case on Sentence

51. The applicant tendered a report from a psychologist, Kris North, dated 7 December 2020. Ms North assessed the applicant on 2 November 2020 for the purposes of preparing the report used at the sentence hearing. As the applicant continued in his denials of his offending conduct, the report focused on the applicant’s personal history and circumstances. The applicant said that he was born and grew up in Sierra Leone as one of six children. His life there was marred by civil war and he reported that he had witnessed his father’s death, and been separated from his mother, being forced by rebels to become a soldier at the ages of 12 and 13. Escaping from his captors in 1992, the applicant said that he spent 6 months in a rehabilitation programme intended to assist child soldiers, before attending school in Freetown, to Year 11 level. In 1999 he left Sierra Leone for Guinea, where he lived in a refugee camp, being reunited with his mother and a sister. In 2002 he travelled to Australia with family as a refugee, being granted citizenship in 2005.

52. In Australia the applicant said he had been consistently employed in printing and construction.

53. He described his relationship with Ms A’s mother, stating that there had been considerable conflict between him and his then partner from the commencement of the relationship. He claimed to have had a close relationship with Ms A who supported him, and he repeated his false claims that she had fabricated her account of sexual assaults by him.

54. The applicant reported symptoms consistent with a post-traumatic stress response, which he attributed to his experiences as a child soldier in Sierra Leone. He was easily distracted, hypervigilant, and had problems sleeping. He regularly ruminated on his earlier experiences. The applicant said that he had become depressed because of his incarceration, and the racist taunts directed to him by other prisoners, who also verbally abused him because of the nature of his offence.

55. On assessment Ms North noted “a range of posttraumatic stress symptoms” although some, particularly anxiety and depression, had been exacerbated by the stress of the criminal proceedings and custodial environment. Although Ms North felt that further testing was required, she concluded that the applicant’s symptoms were consistent with an “adjustment disorder with mixed anxiety and depressed mood”. He was assessed as falling within the low-range of risk for sexual recidivism, with a recommendation for sex offence specific treatment made.

The Submissions of the Parties

56. Written and oral submissions were provided by both parties.

57. The applicant in his written submissions relied upon Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 and another decision of the High Court, KMC v Director of Public Prosecutions (SA) (2020) 94 ALJR 415; [2020] HCA 6, to submit that the sentencing judge was obliged to impose sentence upon the basis of facts most favourable to the applicant. Using language generally applied to an offence similar to the terms of s 66EA as it was enacted in 1999, ^[2] the applicant submitted that a s 66EA offence “is comprised of discrete underlying offences rather than a course of conduct per se” in which “each of the underlying sexual offences comprises an element of the actus reus of the offence”. He contended that, because the court did not ask the jury which of the sexual acts it found proved, it was not possible to know that aspect of the verdict, and thus sentence had to be imposed upon the applicant on the basis most favourable to him. The applicant continued,

“Having regard to the above it is submitted that the court find two (2) categories of underlying acts and no more, consistent with a basis most favourable to the offender. That is the least two (2) serious gradations of unlawful sexual acts.

The court should with respect find the offender committed the following two (2) categories of unlawful sexual acts of sexual exploitation constituting elements of the actus reus of the offence:

Masturbating himself in front of the complainant

Placing the complainant’s hand on his penis and moving his hand up and down to masturbate his penis”.

2. As might have been expected, Ms A’s mother gave evidence of her date of birth, confirming that Ms A was the age she claimed to be.

58. There followed a summary of the evidence before the jury that supported a conclusion that the applicant had:

“masturbated in front of the complainant in October 2014 when Ms A was 14 years old and on multiple occasions thereafter, and

placed the complainant’s hand on his penis and compelled her to move her hand up and down, in October 2014.”

59. The applicant’s written submissions then turned to matters relevant to an assessment of the gravity of the offence, by reference to the considerations given in Burr v R [2020] NSWCCA 282, at [106]-[108], before outlining the subjective case.

60. The applicant acknowledged the need for the sentence imposed to protect the community. He submitted that a finding of special circumstances should be made.

61. In oral submissions the applicant maintained his focus on the asserted obligation upon the sentencing court to find facts that were most favourable to him, relying upon the applicability of Chiro to the sentencing exercise. He continued,

“In my submission your Honour the most favourable findings your Honour could make is that there are only two acts and two acts only, two categories of acts, but when your Honour looks at the count the first submission is two acts, two acts only and then on a gradation of offending in terms of the underlying acts in section 61E(a) your Honour would find the least serious underlying fact being the masturbation in front of the complainant gravating [sic] up to placing the complainant’s hand on his penis and moving it up and down to masturbate and not any of the penetrative acts.”

62. In its submissions the Crown summarised the evidence given at trial by Ms A and submitted that the evidence established the commission by the applicant of “numerous instances of offending” exceeding the threshold required by s 66EA of two unlawful sexual acts. The “ingredient offences”, being those particularised by the indictment, were representative of a wider course of conduct, with multiple instances of sexual acts occurring regularly over a significant period of years. Referring to the features enumerated in Burr v R, at [106]-[108], the Crown noted that the applicant exploited his trusted position within Ms A’s family to gain access to and sexually use her, in her own home, concealing his offending from others. Ms A was entirely vulnerable to the applicant’s persistent predations, being alone and frequently asleep when approached by him. The applicant manipulated the victim emotionally to secure her silence. The significant adverse effects upon the victim of such conduct, accepted by the courts, were referred to. The need for the sentence to incorporate a significant element of general deterrence was noted.

63. In oral submissions the Crown addressed the sentencing judge with respect to two decisions, R v M, DV [2019] SASCFC 59, and Chiro, which, at the time of the sentence hearing in December 2020, were among the few authorities that dealt with a provision similar to s 66EA of the NSW Crimes Act. The Crown submitted that, having regard to the terms of s 66EA as it was following the amendments to the Crimes Act that were made by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), effective from 1 December 2018, the principles given in Chiro did not apply. Its argument was that there was no obligation on the sentencing court to sentence the applicant for the commission only of the two least serious sexual acts. The Crown said,

“In my submission your Honour should sentence on the basis that the evidence of the victim was accepted by the jury in total. Your Honour will see I make reference in my submissions to the nature of the acts, they included penile/vaginal intercourse, it was persistent in that nature, there were also acts of oral intercourse and in my submission they too were persistent in nature. They involved a degree of violence in carrying out those acts. In my written submissions my assessment of it was that it was at the higher end of offending.”

The Findings of Fact, and Remarks on Sentence more broadly

64. As a sentence following trial the facts of the offence fell to be determined by the sentencing judge, his Honour Judge Smith SC: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]; The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. The only constraint to the fact finding exercise was that the facts found by his Honour did not conflict with the verdict of the jury. Sentence was imposed on 15 March 2021 with his Honour finding the facts of the applicant’s crime to be as follows.

65. Correctly rejecting the applicant’s contention that the court was obliged to find the facts that were most favourable to him, his Honour observed that the complainant had been a credible and reliable witness whose evidence he accepted to the criminal standard in its entirety.

66. The s 66EA offence encompassed acts that had occurred between 6 July 2013 and 9 September 2016, at Condell Park. At the commencement of that period Ms A was 12 years of age. She lived with her mother and a younger half-sibling, the latter being the applicant’s child with Ms A’s mother. The applicant did not live with the family but was a frequent visitor. Although the applicant was not Ms A’s father, she regarded him as a father figure in her life and referred to him as “Dad”.

67. In early July Ms A’s mother was hospitalised for the birth of twins. At about 2am on 9 July 2013, when Ms A was at home in the care of the complainant, she was woken from sleep by the applicant tapping her on the shoulder. He climbed onto the bed and onto Ms A, straddling her. When she asked him what he was doing he told her to be quiet and put one hand over her mouth. Ms A began to cry. She tried unsuccessfully to push the applicant off her. Removing Ms A’s underpants, he began to rub his penis against her genitalia, before inserting it into the child’s vagina. This was very painful, and Ms A said, “Please stop Dad”. The applicant continued intercourse, before getting off the bed, masturbating briefly, and leaving the bedroom. When Ms A got out of bed, she found that the floor was very sticky.

68. The following morning the applicant asked Ms A to forgive him, telling her that if she told her mother he would “get into trouble” and “go to gaol”. She did not report the sexual assault.

69. Soon after this incident Ms A’s mother moved interstate, taking the twins and her other child with her. Ms A was left in Sydney in the care of a relative. When the family returned to Sydney and Ms A went back to her mother’s care, the applicant again sexually assaulted Ms A by having intercourse with her, and did so continuously throughout 2014, 2015, and 2016. There were dozens of incidents of penile-vaginal intercourse. During most of these incidents the complainant was on her back, but the applicant sometimes manhandled her, turning her to a position to suit himself. He once ejaculated onto her chest.

64. Ms A cried when assaulted by the applicant, and sometimes hit out at him or said that she would tell her mother. The applicant told her that “they” would “come to take the kids away from your mother”.

65. In 2014 Ms A was in year 8 at school and between 13 and 14 years of age. In October of that year, she was sitting on her bed when the applicant entered her bedroom. He removed his penis from his boxer shorts and began to masturbate in front of her. Grabbing her hand, he placed it on his penis. He told her to open her mouth and said that he was going to teach her something. He then grabbed her jaw and forced her mouth open, putting his penis into her mouth. Ms A felt that she would vomit and went into the toilet where she was sick. Conduct of this nature occurred on multiple occasions. During one incident the applicant masturbated in front of Ms A, ejaculating onto her chest. She said that there were many times when the offender ejaculated onto the rug in her bedroom (and the applicant’s semen was later detected there on forensic examination).

66. When Ms A was in year 9 at school, she had a friend staying with her for the night. Ms A slept in her mother’s bed. She was woken from sleep by the applicant tapping her shoulder. He told her to get up. As he moved to take off her underwear Ms A told him that she would scream if he tried to force himself on her. He desisted.

67. On 7 September 2017 Ms A told her mother that the applicant had been sexually abusing her since the birth of the twins.

68. Having set out the facts his Honour had found established by the evidence the sentencing judge turned to an assessment of the objective gravity of the offending conduct. Referring to Burr v R [2020] NSWCCA 282 at [106] he observed that the number of discrete sexual offences was a feature of relevance, as was the nature of the offending. As to the latter aspect of the assessment his Honour concluded that most of the individual sexual offences amounted to offences of aggravated sexual assault contrary to s 61J of the Crimes Act, reflecting incidents of penile-vaginal intercourse; an attempt to commit such an act, or fellatio. Other discrete sexual acts included masturbating in Ms A’s presence, criminalised by s 61DE of the Crimes Act, and placing Ms A’s hand on the offender’s penis, an act contrary to s 66DB of that Act. The sentencing judge noted the relevance of the child’s age during the period of the abuse, which began when she was 12, and that of the applicant, who was 34 when he first assaulted Ms A; and the duration of the abuse, being a period of 3 years and 2 months. The context in which the offending occurred elevated the gravity of the offending, it “being … a family or quasi-family setting, which had the capacity to influence the power differential between the two persons and the susceptibility or vulnerability of the victim”.

69. His Honour also had regard to the level of exploitation of Ms A that the offences constituted; the degree of concealment by the applicant of his crimes, including by means of emotional threats to Ms A; the fact that the offences all occurred in Ms A’s home; the pain caused to her; and the degradation of Ms A caused by the applicant in ejaculating upon her body.

70. Sentence was imposed.

The Application for Leave to Appeal to this Court

77. As noted, this application requires not just leave to appeal, but also an extension of time in which to bring it. For the reasons that follow, I would refuse both. The application is one which is without merit, and different in terms to the case relied upon by the applicant before the District Court. The lengthy delay in prosecuting the appeal is not satisfactorily explained. I propose to deal with the substance of the application for leave to appeal against sentence, before returning to the question of an extension of time.

The Application for Leave to Appeal

78. The applicant raises a sole ground of appeal:

“The applicant seeks leave to appeal out of time against his sentence in respect of count 1 on the ground that the trial judge failed to make evidence based findings of fact concerning the extent of the offending”.

79. The applicant contends that, in accordance with what was said by Fagan J in RB v R [2022] NSWCCA 142, the requisite approach to sentence following trial for an offence contrary to s 66EA is for the judge to consider the evidence and determine the facts of the offending, applying the principles familiar from The Queen v Olbrich and others. As the jury is not required to unanimously agree that the same two sexual acts were proven, the verdict of guilty to the s 66EA offence does not amount to an acceptance of any particular foundational or ingredient acts, much less all of them. So much can be accepted.

80. The applicant complains that in accepting the totality of the complainant’s evidence before the jury the sentencing judge erred, in that his Honour failed to analyse the evidence to determine which acts were established to the criminal standard. He submits that the sentence should be quashed, and the matter remitted to the sentencing judge to undertake the analysis that should have been completed at first instance.

81. The Crown argues that the sentencing judge followed the proper procedure in determining the facts of the applicant’s crime as required by Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, at [17], a decision that his Honour specifically adverted to and applied. Having seen and heard the complainant give her evidence, the sentencing judge was entitled to accept the evidence in its entirety and impose sentence on that basis. That was particularly the case in circumstances where, in submissions before the District Court on sentence, the applicant did not contend that there was any basis to distinguish between the reliability of the complainant’s evidence with respect to differing individual sexual acts. On that basis, his Honour was not required to undertake an extended explication of the basis of his acceptance of the whole of Ms A’s evidence.

Determination

82. The applicant’s argument is without merit and should be rejected.

83. Before the District Court, the applicant’s (then) counsel did not seek to argue that the complainant’s evidence as to any particular sexual act was qualitatively distinguishable from other aspects of her evidence, such that it could not be accepted to the criminal standard and was not available to form part of the facts accepted as proved by the sentencing judge. The applicant’s submission was wholly directed to making good the proposition that the sentencing judge was obliged to sentence on the basis most favourable to him, that being a factual scenario involving two instances of the least serious sexual acts – an indecent assault and an act of indecency.

84. It is well settled that it is not open to an applicant before this Court to treat proceedings in this jurisdiction as providing an opportunity to reframe or reinvent his or her case on sentence in the hope of improving it, with the aim of achieving a more palatable outcome. Absent some serious error leading to a miscarriage of justice, applicants are bound by the case put at first instance: Zreika v R [2012] NSWCCA 12. It is worth revisiting the principles summarised therein by Johnson J, as they seem frequently to be given little more than tokenistic regard, despite their importance. In Zreika Johnson J said, at [79]-[81]:

“This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].

There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. It might be thought that defence counsel would have ample opportunity to consider whether an argument concerning possible summary disposal should be made in the District Court, given that the acceptance of a plea of guilty to a lesser charge usually follows charge negotiations, as occurred in this case. The fact that a less serious charge is to proceed (and its consequences) would be at the forefront of counsel's thinking.

The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].”

85. In the decision referred to by his Honour in the penultimate paragraph extracted above, Edwards v R [2009] NSWCCA 1999, this Court (per Johnson J, Allsop P and Kirby J agreeing) said at [11]:

“It is the duty of counsel appearing for an offender at a sentencing hearing to assist the Court by making relevant submissions at that time on issues of fact and law. A sentencing court is entitled to expect assistance from counsel, in discharge of counsel’s duty to the court and the client, with respect to relevant issues, including the facts to be found on sentence […]. The public interest is served by counsel discharging his or her duty to the Court and the client: Giannarelli v Wraith [1988] 165 CLR 543 at 555-556.”

86. Where counsel makes no submission on important matters, such as the facts of the offence or offences that are supported by the evidence, it is open to this Court on any later appeal to infer that the omission was one deliberately made by forensic choice. That must be particularly so where, as here, one party raises an issue for the determination of the sentencing court, as the Crown did (extracted at [63] above), and the opposing party does not seek to be heard with respect to that issue.

87. When the Zreika point was raised at the hearing of this application, Senior Counsel for the applicant argued that it would be unfair to confine the applicant to the case as it was originally advanced, because of the asserted uncertainty of the application of Chiro to the determination of facts that applied as at the date of the sentence hearing, in December in 2020. He submitted:

“The sentencing judge was required to make such findings of fact, given that there was no unanimity inherent in the jury verdict in respect of count 1, with the result that, in accordance with RB (No 1) at 70 and RB (No 2) ^[3] at 75 and 99, the approach to fact-finding espoused by the High Court in Cheung and similarly in Isaacs and Olbrich was to be applied, rather than that which had been applied at first instance in RB (No 1) by the sentencing judge, which was to sentence in accordance with the High Court case of Chiro where the two least serious acts had been adopted for the purpose of fact-finding on sentence.

The applicant’s representative below made submissions to the sentencing judge without the benefit of the two decisions in RB (No 1) and (No 2) given that they postdated the conclusion of the proceedings below. Without the benefit of those two decisions, the applicant’s representative below responding to the tension which remained unresolved at that point in time between the two approaches to fact finding for broadly analogous offences as this, on the one hand Chung and the more traditional approach to fact finding and on the other, Chiro. And advocated on behalf of the applicant below that it was the approach which had been applied in Chiro which should be adopted in this case.

In those circumstances where the representative below did not have the benefit of the decisions in RB (No 1 and 2) which obviously make clear that it would be an error at law for the sentencing judge to have applied the principles in Chiro for the purpose of finding facts on sentence in this case. I submit, the applicant cannot be held in this appeal to the approach adopted by his representative below given that the representative did not have conclusive authority on the point.”

3. See [102] – [104] of Burr v R [2020] NSWCCA 282.

88. That submission overlooks or ignores the fact that the applicant was not obliged to frame his case on sentence on the sole legal proposition that was advanced before the District Court; it was open to him to make an alternative submission as to a factual basis, if one could be identified, for preferring some aspects of the complainant’s evidence to others, and submit that the court should find that only certain sexual acts had been established to the criminal standard. That is particularly the case where the Crown, in its submissions, had urged the sentencing judge to accept the whole of the complainant’s evidence as reliable to the criminal standard and conclude that the unlawful sexual relationship encompassed multiple acts of penile-vaginal intercourse, fellatio, sexual touching and acts of indecency. The applicant did not take that approach, confining himself only to the (incorrect) argument as to sentencing on the basis most favourable to him.

89. It is reasonable to infer that the reason counsel did not take that approach is that there was no factual basis in the evidence to distinguish the complainant’s evidence concerning some sexual acts from her evidence concerning others. Common sense and experience strongly suggest that, had counsel been able to point to some feature in the evidence that might have caused the sentencing judge to have a reasonable doubt about any particular sexual activity, he would have done so. That, and the nature of the case the applicant advanced before the jury, establish that the course taken at sentence was a deliberate forensic choice, to which he should be held.

90. The transcript of the trial evidence forms part of the material before this Court. It is clear from that transcript that the applicant chose what might be described as an “all or nothing” strategy at trial and continued that strategy in his case on sentence. I have already referred to the substantial challenge mounted to the veracity of the complainant’s evidence. Ms A was minutely cross-examined about each particularised sexual incident, as to positions, lighting, clothing worn, whether a left or right hand was used at various times, even as to the colour of a lamp post in the street outside Ms A’s home. She was not taken at her word on any aspect of her evidence including, as I have outlined, her evidence as to her age, with counsel trying to make a point before the jury of her inability to produce her Guinean birth certificate. Ms A was repeatedly challenged as a liar who had “made up” false allegations of sexual abuse.

91. The applicant himself gave evidence denying that any sexual act occurred, asserting repetitively with respect to each allegation that had been made by Ms A, “No, that never happened”. He told the jury the complainant was a slovenly girl whose bedroom was always in a mess and who was resentful of him because he told her to do some housework instead of playing on her phone.

92. That tactic of rejecting the complainant’s evidence wholesale continued before the jury in closing address, with counsel for the applicant submitting to the jury that the complainant gave untrue evidence which should be rejected. Whilst the complainant’s evidence of particular sexual acts was attacked as improbable, inconsistent, lacking in detail, and adversely affected by the failure to complain in a timely way, counsel did not seek to distinguish between the quality of her evidence with respect to any particular act. Other witnesses, such as Ms B, whose testimony might be regarded as supportive of what the complainant had said, were also dismissed as liars. There was nothing nuanced about the applicant’s case to the jury, or to the sentencing judge.

93. It is tolerably clear that the applicant chose to advance the case he did at trial, and on sentence, because there was no material basis to distinguish parts of the complainant’s evidence from other parts, or to argue that the evidence overall, including from other witnesses, detracted from its capacity to establish that particular sexual acts had occurred. The applicant argued before this Court that there was a basis to impugn the evidence going to individual counts, but all that he could point to in that regard was the forensic evidence of semen detected on the zebra rug as providing greater support for an act of masturbation in the complainant’s presence than other sexual acts.

94. That submission is factually wrong, since the complainant’s evidence as to the deposition of ejaculate on the zebra rug was that it occurred on the first occasion on which he penetrated her vagina with his penis, when she was 12 years old, and her mother was in hospital following the birth of the twins; and also on later occasions when he masturbated to ejaculation in her bedroom. Thus, if that evidence supports any particular allegation over any other, it is the complainant’s account of having been raped by the applicant as a 12-year-old child, when the complainant specifically recalled stepping in the semen that had been deposited on the carpet.

95. The applicant sought to draw comfort from a question asked by the jury during the course of the trial, and marked MFI10, to submit, as I apprehended it, that the jury may have had doubts about aspects of the complainant’s evidence other than her account of acts of masturbation by the applicant in her presence. The note was in these terms:

“In relation to count 1 the jury requests clarification regarding unlawful sexual relationship. 'Two or more' unlawful sexual acts refers to two separate bullet points [as used on the indictment, extracted above at [3]] or can it refer to one bullet on more than one occasion, eg, two times acts of masturbating?"

96. There are two problems with reliance on the jury note for the purpose the applicant seeks to use it. Firstly, there is nothing unusual about a jury requesting clarification as to the elements of an offence. Understanding the elements is fundamental to proof of the charge brought and juries in criminal trials are routinely urged by trial judges to ask questions if anything is unclear. To conclude from the note MFI10 that its members may or must have accepted the complainant’s evidence only as to the occurrence of two acts of masturbation (selected by the jury specifically as an example, “eg”) during the currency of the unlawful sexual relationship is to take an unjustifiable leap into the unknowable. Secondly, the task of finding the facts for the purposes of sentencing was a task for his Honour, confined only by the requirement for consistency with the verdict of the jury. That principle is found in Cheung and other authorities, the former being referred to by his Honour in his remarks.

96. The verdict of the jury established that its members were satisfied beyond reasonable doubt that the applicant maintained an unlawful sexual relationship with a child under the age of 16 years in which he engaged in two or more unlawful sexual acts of the nature set out in the indictment, being the “bullet points” to which the jury referred. Beyond that, the facts were for his Honour to find to the criminal standard.

97. His Honour articulated that process by his acceptance of the whole of the evidence of the complainant:

“The verdict by the jury is consistent with an acceptance of the victim as a reliable and credible witness. I accept her evidence in its totality and find the following facts beyond reasonable doubt based on that evidence.”

99. That course was open to him. In circumstances where there was no argument before him as to the unreliability of some parts of the complainant’s evidence, it was not necessary for his Honour to undertake a minute analysis of the evidence with a view to making “evidence based findings of fact”. His conclusion was that the facts as the complainant had asserted them to be had been established by her evidence, evidence which was accepted by his Honour as reliable.

100. Sentencing judges are asked to determine the issues in dispute before the court; that is a task sufficiently complex and frequently fraught without more. Judges are not asked and cannot be required to determine issues not raised as matters for resolution. In giving his conclusion that Ms A’s evidence was to be accepted as reliable in toto, his Honour conveyed his acceptance of the facts of the offence as they had been outlined by her. That included, as the Crown had submitted before his Honour, multiple acts of penile-vaginal intercourse; multiple acts of oral intercourse; multiple acts of sexual touching and masturbation in Ms A’s presence. There was no error and certainly no miscarriage of justice in that process.

101. It was entirely open to his Honour to conclude as he did, and sentence the applicant on that basis. The applicant’s argument to the contrary must be rejected.

The Extension of Time

102. The application for leave to appeal was filed on 23 April 2024, over 3 years after sentence was imposed. The applicant relies upon the affidavits of his solicitor, Janet Witmer, affirmed on 26 May 2023 and 16 April 2024 respectively, to explain in part that lengthy delay. In her first affidavit, filed in support of the applicant’s Notice of Appeal and Application for Leave to File a Notice of Appeal After Expiry of the Filing Period, Ms Witmer deposed that an application for legal aid was received from the applicant on 31 May 2022, with steps taken thereafter to obtain relevant documentation to permit an assessment of the merit of the foreshadowed appeal to be made. There was some delay in this process, in part because of some missing transcript, and because of the need to await merit advice from counsel. The application, with respect to both conviction and appeal, was filed on 6 June 2023 and a hearing date of 9 September 2023 was fixed.

103. The applicant subsequently abandoned the conviction appeal, following the publication of the decision in MK v R; RB v R [2023] NSWCCA 180. In her second affidavit Ms Witmer stated that she had been of the opinion that the application for leave to appeal against sentence could not be heard until such time as the High Court handed down its judgment in Xerri v The King [2024] HCA 5. She sought to have the application placed into a future call-over, but later discovered that the Court had closed its file. A fresh application for leave to appeal was then filed.

104. The Court’s record establishes that a Notice of Intention to Appeal was filed by the applicant’s legal representatives on 7 April 2021, pursuant to the then Criminal Appeal Rules 1952 (NSW) (which were repealed from 1 May 2021). It appears that no extension was ever sought or granted to the term of the currency of the Notice, and it expired on 8 April 2022: r 3.1 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

105. On 6 June 2023 the first Notice of Application for Leave to Appeal Against Conviction and Sentence was filed, with a Notice of Abandonment filed with respect to the conviction appeal on 25 July 2023. The second Notice of Appeal and Application for Leave to File a Notice of Appeal After Expiry of the Filing Period was filed on 23 April 2024. The overall delay is thus significant.

106. Ms Witmer’s affidavits explain only that part of the delay from 31 May 2022 which can be attributed to the time taken to obtain both a copy of the record of the District Court and advice as to merit, and the confusion over the disposition of the application pending the resolution of Xerri by the High Court. It does not explain the failure to seek an extension of the Notice of Intention to Appeal, or the delay prior to Ms Witmer receiving instructions from the applicant in May 2022 to pursue an appeal. In the applicant’s affidavit of 2 June 2023, he says only that, following the sentence proceedings, he wanted to file an appeal but waited for his girlfriend to save sufficient money to fund private representation, despite his possible entitlement to legal aid. He said,

“For a long time, she told me she was continuing to try to save and raise the money for the solicitor. Unfortunately, she was not able to raise the rest of the money to pay the private lawyer.”

107. The applicant deposed that in May 2022 his girlfriend told him she could not assemble the requisite funds and, thereafter, he applied for legal aid. It was, as set out, another year before Notices were filed.

108. I do not regard the applicant’s affidavit as providing any reasonable explanation for his delay in seeking legal assistance himself to prosecute an appeal. If the only delay was that attributable to the time taken to obtain the material and advice necessary to pursue an appeal, and in waiting for the resolution of the issue in Xerri, I would grant an extension of time until 23 April 2024; however, the delay is much more extensive than that, with much of it largely unsatisfactorily accounted for. If the appeal was meritorious, that would weigh in favour of an extension of time, despite the partially unexplained delay. As it is not, I would not grant the extension. Even if an extension of time was granted, I would dismiss the appeal.

Conclusion

109. The orders I propose are:

1. Refuse an extension of time in which to bring an application for leave to appeal against the sentence imposed upon the applicant on 15 March 2021.

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Endnotes

Decision last updated: 17 July 2024