McGrath v R

[2010] NSWCCA 48

Reported Decision: 199 A Crim R 527

New South Wales

Court of Criminal Appeal

CITATION:	McGrath v R [2010] NSWCCA 48
HEARING DATE(S):	4 December 2009
JUDGMENT DATE:	24 March 2010
JUDGMENT OF:	Macfarlan JA at 1; Blanch J at 51; Johnson J at 57
DECISION:	(1) Dismiss the appeal against conviction on Counts 1 and 3 of the Indictment. (2) Grant leave to the appellant to appeal against sentence. (3) Set aside the sentences imposed on the appellant on 5 February 2008. (4) In respect of the three offences of which he was convicted, sentence the appellant to terms of imprisonment as follows: Count 1: Six years’ non-parole period to date from 15 November 2007 and to expire on 14 November 2013, with a balance of term of two years expiring on 14 November 2015; Count 2: Three and a half years’ non-parole period to date from 15 November 2007 and to expire on 14 May 2011, with a balance of term of one year expiring on 14 May 2012; and Count 3: Five and a half years’ non-parole period to date from 15 May 2011 and to expire on 14 November 2016, with a balance of term of three years expiring on 14 November 2019.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - child sexual offences - jury not properly instructed as to need to find absence of consent and knowledge of absence of consent in respect of offences under s 61J Crimes Act 1900 - application of proviso to s 6(1) Criminal Appeal Act 1912. - CRIMINAL LAW - sentence appeal - obligation to sentence in accordance with law prevailing at the time of offences - trial judge had inappropriate regard to subsequently introduced standard non-parole periods.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Appeal Rules Misuse of Drugs Act 1981 (WA)
CATEGORY:	Principal judgment
CASES CITED:	Doja v R [2009] NSWCCA 303 Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 MAJW v R [2009] NSWCCA 255 Orkopolous v R [2009] NSWCCA 213 R v AEM [2002] NSWCCA 58 R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 R v Pritchard [1999] NSWCCA 182; (1999) 107 A Crim R 88 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365
PARTIES:	Roger Phillip McGrath (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/8671
COUNSEL:	R Pontello (Appellant) N Noman (Respondent)
SOLICITORS:	O'Brien Solicitors (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/71/0017
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ
LOWER COURT DATE OF DECISION:	5 February 2008

2007/8671

MACFARLAN JA
BLANCH J
JOHNSON J

24 MARCH 2010

Roger Phillip McGRATH v R

Judgment

: The appellant was tried and convicted on an indictment containing three Counts to the following effect:

Count 1: Between 1 February 2001 and 31 May 2001 the appellant had sexual intercourse with the complainant, a person under 16 years of age, namely of the age of 9 years, without her consent and knowing that she was not consenting;
Count 2: Between 1 February 2001 and 31 May 2001 the appellant indecently assaulted the complainant, a person under 10 years of age, namely of the age of 9 years; and
Count 3: Between 1 September 2002 and 30 November 2002 the appellant had sexual intercourse with the complainant, a person under 16 years of age, namely of the age of 10 or 11 years, without her consent, and knowing that she was not consenting.

2 Counts 1 and 3 were allegations of offences under s 61J of the Crimes Act 1900 which in relevant respects was in the following terms:

“(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this section, circumstances of aggravation means circumstances in which:
…
(d) the alleged victim is under the age of 16 years, …
…”.

3 Count 2 was an allegation of a breach of s 61M(2) of the Crimes Act, which provided for a maximum penalty of ten years’ imprisonment. The maximum penalty under s 61J was twenty years’ imprisonment.

4 Following the appellant’s plea of not guilty to each Count, his trial occurred at Albury District Court over three days in November 2007. He was convicted on each Count. On 5 February 2008 he was sentenced by the trial judge to terms of imprisonment as follows:

Count 1: Seven years’ non-parole period to date from 15 November 2007 and to expire on 14 November 2014, with a balance of term of three years expiring on 14 November 2017;
Count 2: Four and a half years’ non-parole period to date from 15 November 2007 and to expire on 14 May 2012, with a balance of term of one and a half years; and
Count 3: Six years’ non-parole period to date from 15 May 2012 and to expire on 14 May 2018, with a balance of term of four years expiring on 14 May 2022.

5 The result was that the appellant was sentenced to a term of imprisonment of fourteen and a half years with a ten and a half years’ non-parole period. The sentence on the second Count was wholly concurrent with that on the first Count and the non-parole period on the third Count was concurrent with that on the first Count as to two and a half years.

6 The appellant appeals against his conviction on the first and third Counts and seeks leave to appeal against the sentences imposed upon him in respect of the three Counts.

Factual circumstances

7 The complainant was the same in respect of each Count. Prior to the alleged offences, the appellant had for about two years been in a relationship with the complainant’s mother. He often stayed at the house in which the complainant lived with her mother and younger sister.

8 In his Remarks on Sentence, the trial judge described the circumstances giving rise to the indictment as follows:

“[The complainant] recalled that in early 2001 when she was aged nine whilst they were living at [the first address], she was in the lounge room of that dwelling with the prisoner lying on the lounge while she was on the floor. He directed her to come up onto the lounge. She did so but sat at the other end from him. He said, ‘No, not there, up here’, and then pulled her up onto the lounge positioning her, the child, on top of his body. He then pulled down both his pants and hers and inserted his penis into her vagina which action caused her considerable pain.
The victim’s mother arrived home. The prisoner told her, ‘Don’t tell mum’ and put her down, and then I think the mother, the daughter and a friend all went on some expedition gathering yabbies.
This was said to have occurred between February and May 2001, and during that same period the second count was laid. It related to an occasion on which the victim had gone into her mother’s room to find the prisoner lying in bed. He was naked. He took hold of her hand and placed it on his penis. She removed her hand and left the room. This is the count under s 61M(2).
…
The third count is laid as having occurred in the latter half of 2002. It was at another address, … . The victim was asleep in her bedroom when she alleged, and the jury obviously accepted, that she was awoken to find the prisoner getting into her bed.
He pulled down her pyjamas and inserted his penis into her vagina. She was saying to him, ‘Stop it, stop it’ and crying so that he eventually, telling her not to tell her mother, left the room, and she pulled the blanket over her head and then went to sleep [sic]”.


The conviction appeal

Misdirection

9 The appellant contended that there had been a miscarriage of justice because the trial judge misdirected the jury about the essential elements of the offences to which Counts 1 and 3 related. In particular, he argued that the trial judge had directed the jury that it need not consider the allegations in the indictment that the appellant did not consent to sexual intercourse with the complainant and that the appellant knew that the complainant was not consenting, because, as a matter of law, the complainant was, by reason of her age, incapable of consenting to sexual intercourse.

10 The Crown conceded on the appeal that this was the effect of the judge’s directions to the jury and that the directions were erroneous. The relevant part of the judge’s summing-up was in the following terms:

“The Crown has to prove that [the complainant] was not consenting, and of course, she could not consent because she is under sixteen. No child can consent to an act of sexual intercourse. You might think that that element by itself is proved beyond any question.
…
So the real issue in this trial – I mean, the Crown has to prove those other elements, but you might think the Crown does not have any difficulty with those elements about the absence of consent, and of course, the accused if he did the things that [the complainant] says he did, would have understood that she was not in a position to consent, so there cannot be any argument about that - the real issue is, did this act of penetration to any degree at all take place; has the Crown proven that beyond reasonable doubt or not?”

11 The Crown’s concession was properly made. The judge was in error in indicating to the jury that the complainant, because she was under the age of 16, was, in effect, to be deemed not to have consented to sexual intercourse for the purposes of the offences alleged in Counts 1 and 3, which charged breaches of s 61J. Certainly, it is no defence to a charge under s 66A of having sexual intercourse with a child under the age of ten years that the child consented, nor to a charge under s 66C of having sexual intercourse with a child above the age of ten years but less than sixteen years that the child consented. However s 61J, the section under which the appellant was charged in respect of Counts 1 and 3, specifically makes the absence of consent and knowledge of that absence of consent elements of the offence. As a result, those matters must, irrespective of the victim’s age, be proved beyond reasonable doubt for a person to be convicted of an offence against s 61J.

Application of the Proviso

12 The question then arises whether, by reason of the trial judge’s misdirection of the jury, the appellant’s conviction on the Counts under s 61J should be set aside or whether the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied. In relevant respects that proviso permits the court to dismiss an appeal against conviction, notwithstanding that an appellant has made out a case for the setting aside of a conviction, if the court “considers that no substantial miscarriage of justice has actually occurred”.

13 In favour of applying the proviso is the fact that the case conducted by the appellant at trial was quite inconsistent with the proposition that sexual intercourse with the complainant had occurred with the complainant’s consent. In circumstances where the jury had plainly accepted the complainant’s evidence so as to find that the sexual intercourse complained of had in fact occurred, there was not in my view any rational basis upon which the jury could, on the evidence, have come to the conclusion that the complainant consented to the sexual intercourse or that the appellant was unaware of the complainant’s lack of consent.

14 The principal evidence in chief of the complainant was to the effect of the passages from the Remarks on Sentence quoted in [8] above, although importantly she also gave evidence that she made protestations to the appellant in respect of both acts of intercourse. The case of the appellant, as put through the cross-examination of the complainant and in address, was, as the Crown described in its Summary of Trial, that the complainant “fabricated the allegations because she hated the Appellant and aimed to break up the relationship between the Appellant and her mother”.

15 The complainant was cross-examined extensively on behalf of the appellant to suggest that she disliked the appellant and bore animosity towards him for a variety of reasons. Neither the questions nor answers in this cross-examination (nor in that of any of the other witnesses called in the Crown’s case) suggested that the complainant had given her consent to intercourse or that there was any reason why she may have done so. The complainant’s evidence of the offences incorporated reference to express protestations, and, therefore, to communications to the appellant of the complainant’s lack of consent. In light of the nature of the attack made on the complainant’s evidence by the appellant, the jury could not in my view rationally have accepted her evidence about the instances of sexual intercourse without accepting her evidence of their circumstances, including her protestations. That possibility was not in any way raised for its consideration through the appellant’s cross-examination of her.

16 The appellant did not give evidence or call any other witnesses and, in his closing address at the trial, counsel for the appellant submitted that there was evidence of “intense hate” of the complainant of the appellant. Attacking the complainant’s evidence that sexual intercourse had occurred, he submitted that this hate constituted “a very powerful motive to lie” and that the complainant had been shown to be a “liar” who “made up” evidence. This was consistent with the case which he had earlier put through the cross-examination, on the appellant’s behalf, of the complainant.

17 In Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365, Brennan, Dawson and Toohey JJ referred to the authorities which are customarily cited in relation to the application of the proviso as establishing “that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost ‘a chance which was fairly open to him of being acquitted’ to use the phrase of Fullagar J in Mraz v The Queen or ‘a real chance of acquittal’ to use the phrase of Barwick CJ in Reg. v Storey” (at 371-2, citations omitted). Their Honours however went on to say:

“It is one thing to apply the proviso to prevent the administration of the criminal law from being ‘plunged into outworn technicality’ (the phrase of Barwick CJ in Driscoll v The Queen , ((1977) 137 CLR, at p 527)); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v Hildebrandt ((1963) 81 WN (Pt 1) (NSW) 143, at p 148); Reg. v Henderson ([1966] VR 41, at p 43) ; Reg. v Couper ((1985) 18 A Crim. R 1, at pp 7-8).

There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, "Venire de Novo" Law Quarterly Review, Vol 71 (1955) 100, at p 128; Reg. v Rose ([1982] 1 WLR 614, at pp 621-622; [1982] 2 All ER 536 at p 542); and, in the House of Lords ([1982] AC 822 at pp 831-834). But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances” (at 373).

18 Wilde v The Queen was referred to with approval by Gaudron, Gummow, Kirby and Hayne JJ in Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 at [23]. Their Honours said in that case that they “were not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed” and said that “[s]imply demonstrating that there was a misdirection on a matter relevant to the jury’s consideration is not sufficient” to preclude the application of the proviso (at [23]).

19 In Krakouer, the appellant had been charged with conspiring and attempting to possess a prohibited drug with intent to sell or supply it to another. Section 11(a) of the Misuse of Drugs Act 1981 (WA) deemed, unless the contrary was proved, a person to be in possession of a prohibited drug with intent to sell or supply to another if the quantity of the drug was not less than a specified quantity.

20 The trial judge erroneously directed the jury that the deeming provision applied to the offences with which the appellant had been charged. He did so in opposition to contentions both from the appellant and the Crown. The appellant was convicted.

21 The view expressed in the plurality judgment in that case was that if the appellant had not lost a “real chance of acquittal”, the case was an appropriate one for application of the proviso. As in the present case, the misdirection related to a fundamental element of the offences charged. Unlike the present case however, consideration of that element was not withdrawn altogether from the jury’s consideration. There, the jury was told, in effect, that the element was established, subject to proof by the appellant to the contrary. The misdirection was thus as to the onus of proof.

22 The misdirection in the present case went further because it was not suggested to the jury that the appellant could rebut the presumption which was said to exist as to the absence of the complainant’s consent. However, I do not consider that this is a sufficient basis for distinguishing the decision in Krakouer. The principle is in my view the same in each instance: the misdirections diverted the jury from proper consideration of fundamental elements of the offences charged.

23 The plurality in Krakouer proceeded to consider whether the appellant there had lost a “real chance of acquittal”. It concluded that conviction was not inevitable (at [37]) and that the appellant’s convictions should be quashed. It pointed out that at the trial the appellant “had made no point about intention to sell or supply” (at [26]) and that such a point was made for the first time at the hearing of the appeal to the High Court (at [28]). However, as the point was not devoid of merit, and particularly as objection to the misdirection had been taken at the trial, it could not be said that the appellant did not lose a real chance of acquittal.

24 No similar point is available in the present case. As explained above (see [13] – [16]), the trial was conducted, throughout, on behalf of the appellant upon the basis that sexual intercourse had not occurred. His case, as put through cross-examination and in address, was inconsistent with intercourse having occurred with the consent of the complainant. In address on appeal, counsel for the appellant referred to submissions made at the trial by counsel for the appellant to the effect that the complainant would not have associated with the appellant in ways he identified if her evidence as to sexual intercourse were correct, and that her cries would have been heard by the complainant’s mother if sexual intercourse had occurred. However, these submissions at the trial were plainly directed to persuading the jury that it should not accept the complainant’s evidence that intercourse had occurred. Not the slightest suggestion was made at the trial that intercourse may have occurred with the complainant’s consent.

25 The present case is accordingly distinguishable from Krakouer in that there is no point raised, either at the trial or on appeal, which suggests that the appellant would have had a real chance of acquittal if the misdirection had not occurred.

26 In Krakouer, McHugh J was in dissent on the question of whether the trial was fundamentally flawed. His view was that the trial judge’s direction took the critical issue of intent to sell or supply to another out of the jury’s hands, thereby substituting “trial by direction for trial by jury” (at [74]). He considered that matters such as the standard or onus of proof or the functions of the jury “go to the root of the criminal trial according to law”. He said, in support of the conclusion to which he came on this issue:

“An accused person is entitled to a trial according to law. Where the law requires that an issue be tried by a jury, the accused does not have a trial in any meaningful sense where the jury is prevented by judicial direction from determining the issue. It is of no relevance in my opinion that a court of criminal appeal thinks that the evidence of guilt is overwhelming. An accused is entitled to be tried by the jury. That is the tribunal that is given the responsibility for determining the guilt of an accused person” (at [75]).

27 The views of McHugh J would, in my view, require the convictions in the present case on Counts 1 and 3 to be quashed. However I consider that the views of the plurality indicate that the appeal should be dismissed. That is the course which I therefore propose.

28 I consider that the decision of this Court in R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 supports the view that the convictions in this case should stand. In that case, the trial judge gave, in respect of a charge under s 61I of the Crimes Act, erroneous directions as to the requirement that the accused know that the other person “does not consent to the sexual intercourse” (see then current s 61R). Wood CJ at CL (with whom Howie J agreed) concluded that the misdirection did not cost the appellant a real chance of acquittal and that the proviso should be applied. He observed that “[i]t was never the case of the appellant that he had intercourse with [the complainant], or had attempted to do so, with her consent. It was his case that he did not have intercourse with her, and did not attempt to do so” (at [116]). He found that the “only rational inference that was … open, was that [the appellant] knew that [the complainant’s] submission … was non consensual but was forced” (at [118]). His Honour referred to the plurality judgment in Krakouer (see [18] – [23] above) but did not suggest that the misdirection resulted in the trial being fundamentally flawed.

29 Spigelman CJ dissented as to the application of the proviso but did so, not upon the basis that the misdirection as to consent resulted in the trial being fundamentally flawed but upon the basis that, on his assessment of the trial, the misdirection did cost the appellant a real chance of acquittal.

30 The appellant in the present case sought to distinguish Gulliford upon the basis that in that case, unlike the present, there were “really quite comprehensive directions on consent”, albeit erroneous in an important respect. I do not consider that this is a difference which is of significance for present purposes.

31 Spigelman CJ has recently observed that in this context the High Court has emphasised in recent case law “that it is important not to be distracted from the statutory language of whether there has been a ‘substantial miscarriage of justice’” (Doja v R [2009] NSWCCA 303 at [52]). For the reasons I have given there has not in my view been a substantial miscarriage of justice in this case.

32 As the point as to misdirection, with which I have just dealt, was not taken at the trial, rule 4 of the Criminal Appeal Rules required the leave of this Court for it to be taken on appeal. As the point is an arguable one and one of some general significance, I would grant leave but, for the reasons I have given, nevertheless dismiss the appeal.

33 If (contrary to my view) it were appropriate to set aside the appellant’s convictions on Counts 1 and 3, the Court would have been empowered by the combined operation of s 7(2) of the Criminal Appeal Act and s 61Q(3) of the Crimes Act to substitute for the jury’s verdict a verdict of guilty of an offence under s 66A of the Crimes Act (Sexual intercourse – child under 10) in respect of Count 1 and s 66C of the Crimes Act (Sexual intercourse – child between 10 and 16) in respect of Count 3. Both parties accepted on the appeal that the jury verdicts indicated that the jury must have been satisfied of the facts which rendered the appellant guilty of offences under these sections.

The application for leave to appeal against sentence

34 The grounds upon which the appellant seeks leave to appeal are, first, that the trial judge “has wrongly taken into account subsequent standard non-parole periods” and, secondly, that “the sentences are manifestly excessive”.

35 The offences of which the appellant was convicted were committed between 1 February and 31 May 2001 as to the first two Counts and between 1 September 2002 and 30 November 2002 as to the third. The judge was obliged to sentence the appellant in accordance with the law and practices prevailing at the date of the commission of his offences (R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368).

36 In his Remarks on Sentence, the judge noted that the three offences of which the appellant was convicted took place before the introduction of the concept of standard non-parole periods by an amendment to the Crimes (Sentencing Procedure) Act 1999, which took effect from 1 February 2003 (see Pt 4, Div 1A of that Act). His Honour said that the concept had no “direct bearing” upon the sentencing of the appellant and continued as follows:

“It would, however, be extraordinary in my view that the court should ignore the clear legislative intent evinced as from 1 February 2003 that offences of this nature should be regarded as meriting the most condign punishment.
Following Way’s case, of course the Court of Criminal Appeal has decided that standard non-parole periods do not apply in circumstances where a plea of guilty has been entered. Nonetheless the court ruled that the standard non-parole periods remain as a guideline to which the court must have regard in posting a sentence.
I do not think it is possible to exclude entirely the effect of those guidelines, even on sentences for crimes which were committed shortly before the operation of the section itself, but I have placed no great reliance upon the standard non-parole periods prescribed which I record simply for purposes of completeness as being ten years in connection with s 61J(1) offences and five years [in fact, increased to eight years by the date of sentencing] for the 61M(2) offence.
The s 61M(2) offence being, as I had occasion to remark only the other day, extraordinary in that it fixes a standard non-parole period of proportions far in excess (in relation to the head sentence) of anything else I have ever seen in the law, but it has no bearing in this case. Nonetheless these are extremely serious offences and there has been a burgeoning awareness on the part of both the legislature and the courts that offences of this nature require the most serious approach to punishment”.

37 In my view, the proper conclusion to be drawn from these passages is that the judge was to some extent influenced by the standard non-parole periods prescribed after the dates of the offences and by an increasing seriousness attached to offences of that character, as reflected by judicial decision, as well as by the introduction of the standard non-parole periods. His Honour’s use of the expressions “no direct bearing”, “extraordinary … that the Court should ignore the clear legislative intent”, “exclude entirely” and “no great reliance” (emphases added) indicate that account was taken of these matters. The judge’s reference to the “burgeoning awareness … that offences of this nature require the most serious approach to punishment” does this also.

38 In these circumstances, it is necessary to adjust the sentences imposed to reflect any difference that existed between the relevant sentencing practices at the date of conviction and those at the time of the offences. Apart from seeking this adjustment and complaining generally as to the manifest excessiveness of the sentence, no particular objections were taken by the appellant as to the views expressed by the judge in the course of sentencing. It is accordingly sufficient to refer only briefly to those views.

39 First, the judge did not consider the emotional harm or damage done to the complainant to be so severe that it was out of “the range of, or the parameters of damage always done to children who are subjected to this form of abuse”. Secondly, he accepted that, because of the complainant’s “extreme youth” and the relationship which existed between the complainant and the appellant, the subject offences were ones “falling towards the higher end of the range of seriousness for offences of this nature”.

40 As to subjective factors, the judge noted that the appellant had a criminal record but “not of anything involving gravely serious criminal behaviour”. He also noted that because the appellant had exercised his right to decline to discuss the offences with the doctor who examined him and with the officer preparing the pre-sentence report, “we have absolutely no idea of what he might say about any potentially ameliorating circumstances involving these offences, and it cannot be suggested that there is any display of contrition or remorse”. After consideration of the pre-sentence report and of the medical evidence, the judge said he was not “persuaded that I should find his prospects of rehabilitation are good” and adopted “an entirely neutral stance in relation to that aspect”.

41 His Honour took account of the fact that the incarceration would be the appellant’s first time in custody and that because of the nature of his offences he would “probably not become part of the general population of the prison”. He made some reduction in the non-parole period in respect of these factors, “but not a major one”. He concluded by saying that none of the offences could be regarded as a “single aberration” and that they were “serious offences for which there must be serious sentences”.

42 The difficulties in determining what sentencing practice was at a prior point of time were referred to by Mason P in R v MJR at [54] – [55]. His Honour pointed out that the premise upon which that case proceeded was that the pattern of sentences for child sexual assault had increased over time (at [57]). After that case was decided, standard non-parole periods, which appear to have reflected a more serious treatment of child sexual assaults than what prevailed hitherto, came into force.

43 In the present case, the appellant submitted that from the date of the decision in R v AEM [2002] NSWCCA 58 (13 March 2002) until the commencement of the standard non-parole period regime, “there was a noticeable change in sentencing practice” in relation to sexual offences, involving the more serious treatment of those offences. The Crown did not contend that sentences for sexual offences had not increased but submitted that that increase began to occur prior to the introduction of standard non-parole periods, referring in that connection to the acknowledgement by the appellant that such sentences were increasing from the date of R v AEM.

44 In these circumstances, it is appropriate to regard sentences imposed in respect of child sexual offences after the introduction of relevant standard non-parole periods in February 2003 as generally more severe than they were in 2001 when the first two offences were committed. The same comment is applicable to the period when the third offence was committed, although it has less force because this period followed the decision in R v AEM in March 2002.

45 The sentences imposed by the judge should be set aside as he appears to have had some regard in sentencing the appellant to the subsequently introduced standard non-parole periods. It is appropriate that the re-sentencing of the appellant reflect the sentences originally imposed, subject to adjustments to exclude the impact of changes to sentencing occurring after the date of the offences.

46 Bearing in mind that the standard non-parole periods subsequently introduced were 10 years in respect of s 61J offences and five years (subsequently increased to 8 years) in respect of s 61M(2) offences, and bearing in mind the judge’s findings on objective and subjective factors, it does not appear that the influence of those standard non-parole periods on his Honour’s sentencing was a substantial one. Accordingly, whilst I consider that an adjustment should be made, it should be a small one.

47 In my view a period of one year should be deducted from the non-parole period in respect of each the sentences on Counts 1 and 2 and six months in respect of the sentence on Count 3. Some limited adjustments should also be made to the balances of the terms and their commencement dates. The balance of the term of imprisonment that I propose in respect of Count 3 exceeds one-third of the sentence on that Count (compare s 44(2) of the Crimes (Sentencing Procedure) Act). However, that is justified by “special circumstances” within the meaning of that subsection, as, if the balance of term for that sentence were shorter, the overall effective balance of term of the sentences would be less than one-third of the overall effective non-parole periods (see MAJW v R [2009] NSWCCA 255 at [54]). This would not be appropriate as the ratio of one-third:two-thirds should in my view be maintained in respect of the overall sentences in the present case. The alternative course of fixing a shorter non-parole period for Count 3 would not in my view be appropriate as it would reduce the overall effective non-parole period below what I regard as the period necessary to reflect the gravity of the offences of which the appellant was convicted.

48 In forming a view as to the appropriate adjustments, I have taken into account affidavits filed on behalf of the appellant as to efforts he has made whilst in prison to undertake various courses and to engage in library and cleaning work.

49 The remaining ground upon which leave to appeal against the sentences is brought is that the sentences imposed by his Honour were manifestly excessive. When adjusted as I have proposed, the sentences in my view fall well within the range of sentences appropriate for offences of this seriousness involving, as they did, the gross abuse by the appellant of the complainant when she was, as the sentencing judge said, “in a position in which she was entitled to repose trust in the prisoner”.

Orders

50 I propose the following orders:

(1) Dismiss the appeal against conviction on Counts 1 and 3 of the Indictment.

(2) Grant leave to the appellant to appeal against sentence.

(3) Set aside the sentences imposed on the appellant on 5 February 2008.

(4) In respect of the three offences of which he was convicted, sentence the appellant to terms of imprisonment as follows:

Count 1: Six years’ non-parole period to date from 15 November 2007 and to expire on 14 November 2013, with a balance of term of two years expiring on 14 November 2015;
Count 2: Three and a half years’ non-parole period to date from 15 November 2007 and to expire on 14 May 2011, with a balance of term of one year expiring on 14 May 2012; and
Count 3: Five and a half years’ non-parole period to date from 15 May 2011 and to expire on 14 November 2016, with a balance of term of three years expiring on 14 November 2019.

51 BLANCH J: I have had the advantage of reading the judgment of Macfarlan JA in draft. His Honour sets out the relevant facts and I agree with his Honour’s conclusion that this is an appropriate case for this Court to exercise the proviso because I consider that no substantial miscarriage of justice has actually occurred. Because the direction given in the summing up appears on the face of it to have deprived the appellant of the jury’s consideration of an essential element of the first and third counts in the indictment I wish to add my own reasons for the decision.

52 The only argument advanced on behalf of the appellant at his trial was that no sexual assault had occurred on any of the three occasions. That by itself may not have precluded the jury from considering whether or not the complainant had consented to the sexual acts. Such consideration might have arisen from the fact that the alleged offences occurred between February 2001 and September 2002 but no complaint was made until March 2006. Bearing in mind the way the trial was conducted, it would not have been possible for defence counsel to make such a submission to the jury because it would be quite contrary to his instructions and other submissions.

53 However, the defence case was conducted not simply on the basis of denying the allegations of the complainant but also on the basis of asserting the motive of the complainant in making the complaint was because she hated the appellant. The complainant was cross-examined as follows:

Q. You used to tell [the complainant’s cousin] how much you hated the accused.
A. Yes.
Q. Because he pushed and shoved you.
A. I remember he used to hit me.
Q. And that was part of the basis for hating him.
A. Yes.
Q. You used to say to [the complainant’s cousin] I hate Roger.
A. Yes.

54 In submissions to the jury counsel for the defence said: “She conceded it herself, that is [the complainant], conceded that hate that existed prior to this alleged incident [at the home]. A hate based upon a child’s desire that she not be told what to do by a father that was acting as a stepfather figure to her.” He went on to say: “… it was hate spawned by what appear to be ordinary lawful incidents of someone acting instead of a parent.”

55 Those submissions are entirely inconsistent with any suggestion that the complainant had consensual intercourse with the appellant. I believe for that reason the appellant did not lose a real chance of acquittal within the meaning of the authorities referred to in the judgment of Macfarlan JA.

56 A further problem in assessing if I consider no substantial miscarriage of justice has actually occurred is that the relief sought by the appellant is the substitution of verdicts under s66A of the Crimes Act in place of the convictions under s61J of the Crimes Act. The maximum penalty under s61J is 20 years imprisonment. The maximum penalty under s66A is 25 years or life imprisonment if the offence is committed in circumstances of aggravation which includes a circumstance where the victim is under the authority of the offender. In my view, bearing in mind the complainant was aged nine and ten at the time of the commission of the offences, no lesser penalty than that proposed could be considered appropriate. I agree for the reasons given by Macfarlan JA that the sentence imposed should be reduced as proposed by him.

57 JOHNSON J: I have had the considerable advantage of reading the judgments of Macfarlan JA and Blanch J. I agree with their Honours’ conclusions with respect to the appeal against conviction which, in my view, ought be dismissed. I agree with their Honours with respect to sentence, but wish to make some additional comments on that issue.

58 From time to time, sentencing courts must grapple with changing sentencing regimes when imposing sentence upon a particular offender. One scenario arises where an offender is to be sentenced for crimes committed many years (if not decades) before: R v Moon [2000] NSWCCA 534; 117 A Crim R 497; R v MJR [2002] NSWCCA 129; 54 NSWLR 368. Following trial, the Appellant stood for sentence on 5 February 2008 for offences committed between February 2001 and November 2002. This was not a case falling within this category.

59 A second scenario arises where an offender is to be sentenced for a crime which, by the time sentence comes to be passed, has been abolished: R v Pritchard [1999] NSWCCA 182; 107 A Crim R 88; Orkopolous v R [2009] NSWCCA 213 at [97]-[100]. That is not this case.

60 The case lies in a third category. The present offences were committed within a two-year period before the commencement on 1 February 2003 of the standard non-parole period system applicable to offences under s.61J and s.61M(2) Crimes Act 1900. Express statutory provision was made so that the standard non-parole period system did not apply to offences committed before 1 February 2003: cl.45(1), Schedule 2, Crimes (Sentencing Procedure) Act 1999. As a result, it was entirely impermissible for the sentencing Judge to have regard to the existence of a standard non-parole period for these offences. I agree with Macfarlan JA that the sentencing Judge had (at least) indirect regard to the existence of the standard non-parole period for these offences. With respect, the only safe course which his Honour could take was to observe that the standard non-parole periods had no application to these offences. To move beyond that, in the manner which his Honour did, led to error in imposition of sentence.

61 This case involves most serious examples of offences under s.61J and s.61M(2) Crimes Act 1900, committed against the same victim between February 2001 and November 2002.

62 As Macfarlan JA has noted at [43], the submissions on behalf of the Appellant accepted that the effect of the decision in R v AEM [2002] NSWCCA 58 was that past sentences for offences under s.61J Crimes Act 1900 had been too lenient, and that an upward movement in sentences was appropriate. This was the state of sentencing law before the commencement of the standard non-parole period system.

63 I agree with Macfarlan JA that error has been established with respect to sentence in accordance with the first ground of appeal on sentence. I am satisfied that some lesser sentence is warranted in law and ought be passed: s.6(3) Criminal Appeal Act 1912.

64 However, the sentences to be imposed upon the Appellant for these most serious crimes must be substantial. In my view, an effective non-parole period of nine years represents the minimum term of imprisonment which the Appellant should serve for these objectively serious crimes: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 716-717 [55]-[58].

65 I agree with the orders proposed by Macfarlan JA.

**********