Mcintosh v R

[2015] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

McIntosh v R [2015] NSWCCA 184

Hearing dates:

8 May 2015

Decision date:

09 July 2015

Before:

Basten JA at [1];
Hidden J at [172];
Wilson J at [176]

Decision:

(1)   With respect to the 2009 convictions –

 

(a)   grant the applicant leave to appeal against the convictions for all offences;
(b)   dismiss the appeal.

 

(2)   With respect to the 2011 convictions –

 

(a)   grant the applicant leave to appeal limited to ground 2;
(b)   with respect to ground 2, dismiss the appeal.

 

(3)   With respect to the appeal against the aggregate sentence –

 (a)   grant the applicant leave to appeal;
(b)   set aside the sentence imposed in the District Court on 22 August 2011;
(c)   in place thereof, impose an aggregate sentence, and
(d)   sentence the applicant to imprisonment for 24 years with a non-parole period of 18 years, to commence on 28 December 2008. The first date on which the offender is eligible for parole is 27 December 2026.

Catchwords:

APPEAL – leave to appeal – criminal trial – interlocutory decision – joint trial ordered with respect to separate complainants – Basha inquiry held – complainants cross-examined on contacts with each other – whether counsel prevented from reopening the issue of separate trial – leave required – Criminal Appeal Act 1912 (NSW), s 5(1)(b)

 

APPEAL – conviction – leave to appeal – challenge to jury direction – whether distinction between tendency and coincidence explained – no complaint about directions at trial – leave required – Criminal Appeal Rules (NSW), r 4

 

CRIMINAL LAW – sentencing – sentencing for historical sexual offences following two separate trials – whether sentence accorded with sentencing principles applied at time of offending – whether leniency should be afforded where accused first convicted of similar offences which post-dated the offences on trial – whether intervening change of maximum penalties for various offences at different trials properly reflected in indicative sentences

 

CRIMINAL LAW – sentencing – aggregate sentence – earlier trial completed before s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) commenced – whether aggregate sentence available in relation to earlier convictions – whether accused convicted prior to commencement of s 53A

 

CRIMINAL LAW – sentencing – aggregate sentence – whether non-parole period for each indicative sentence required – whether indicative sentences manifestly excessive – whether principle of totality applicable to aggregate sentence

 

EVIDENCE – admissibility – tendency – sexual offences – evidence of uncharged acts admitted as tendency evidence – possibility of concoction suggested in general terms during cross-examination on voir dire – whether possibility of concoction affected the probative value of evidence – whether potential prejudicial effect – whether concoction relied on at trial

 

EVIDENCE – relationship evidence – evidence of other incidents involving witness – evidence rejected under tendency rule at pre-trial hearing – evidence admitted as relationship evidence to explain the response of witness

WORDS AND PHRASES – “conviction” – “convicted” – Crimes (Sentencing Procedure) Act 1999 (NSW), Sch 2, Pt 21, cl 62 – “probative value” – Evidence Act 1995 (NSW), ss 101, 137

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), s 61M, 556A
Criminal Appeal Act 1912 (NSW), ss 2, 5, 6
Criminal Appeal Rules (NSW), r 4
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3(3A),10, 44, 45, 53A; Sch 2, Pt 2, cl 62; Pt 7, cl 45; Pt 19, cl 59
Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), ss 3A, 21A; Sch 2 [14]
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 1
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 2
Evidence Act 1995 (NSW), ss 97, 98, 101, 137
Interpretation Act 1987 (NSW), s 33

Cases Cited:

AE v R [2008] NSWCCA 52
Black v R [2013] NSWCCA 265
BJS v R [2011] NSWCCA 239
BJS v R [2013] NSWCCA 123; 231 A Crim R 532
Collier v R [2012] NSWCCA 213
Convery v R [2014] NSWCCA 93
Griffiths v The Queen (1977) 137 CLR 293
Hoch v The Queen (1988) 165 CLR 292
JM v R [2014] NSWCCA 297
Jones v R [2014] NSWCCA 280
Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
Lee v R; Tang v R [2015] NSWCCA 157
Lipchin v R [2013] NSWCCA 77
Magnuson v R [2013] NSWCCA 50
Mariam v R [2013] NSWCCA 338
Maxwell v The Queen (1996) 184 CLR 501
MPB v R [2013] NSWCCA 213; 234 A Crim R 576
Pfennig v The Queen (1995) 182 CLR 461
R v Basha (1989) 39 A Crim R 337
R v Colby [1999] NSWCCA 261
R v Dunn [2004] NSWCCA 346
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Leonard [2006] NSWCCA 267; 67 NSWLR 545
R v OGD (No 2) [1999] NSWCCA 261
R v Preston (CCA (NSW), 9 April 1997, unrep)
R v Reinsch [1978] 1 NSWLR 483
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Taumaialo [2000] NSWCCA 14
R v XY [2013] NSWCCA 121; 84 NSWLR 363
Richards v The Queen [1993] AC 217
RJB v R [2015] NSWCCA 93
RL v R [2015] NSWCCA 106
Tuvunivono v R [2013] NSWCCA 176

Texts Cited:

Anderson, Williams and Clegg, The New Law of Evidence (LexisNexis, 2nd ed, 2009)
JD Heydon, Cross on Evidence (LexisNexis, 10th ed, 2015)
JD Heydon, “Is the Weight of Evidence Material to its Admissibility?” (2014) 26 Current Issues in Criminal Justice 219

Category:

Principal judgment

Parties:

Andrew Dean McIntosh (Appellant)
Director of Public Prosecutions (Respondent)

Representation:

Counsel:
T Edwards (Appellant – appeal from first trial)
G F Jauncey (Appellant – appeal from second trial)
G O’Rourke (Respondent)

  Solicitors:
M Bowe, Solicitor (Appellant – first trial)
Jack Rigg Solicitors (Appellant – second trial)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2008/19544; 2009/5544

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 August 2011

Before:

Finnane DCJ

File Number(s):

2008/19544; 2009/5544

Judgment

1. BASTEN JA: Following two trials in the District Court, in 2009 and 2011 respectively, the applicant was convicted of 42 offences of assault and indecent assault on a number of young persons. The trial judge (Finnane DCJ) imposed an overall aggregate term of imprisonment for 32 years, with a non-parole period of 20 years.

2. The applicant seeks leave to appeal his convictions on grounds which are not limited to questions of law and therefore require leave. [1] The grounds did not specify to which convictions they related and it may, accordingly, be assumed that they sought to challenge all the convictions as demonstrating a miscarriage of justice at each trial. The applicant also sought leave to appeal against the aggregate sentence imposed on him.

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

(1)   Background circumstances

3. The first trial (conducted in June – July 2009) involved a single victim, Sascha Chandler, who has consented to the disclosure of his name. [2] There was during the trial, but no longer is, a non-publication order in force with respect to the name of the school at which he was a student, namely Barker College in Sydney. The offences occurred whilst he was a member of the school’s cadet unit, between April 1991 and January 1992. In April 1991 the complainant was about to turn 16 years of age.

   2. There would otherwise be a prohibition on publication of his name and any information which might identify any person who was under the age of 18 years at the time of the offending: Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

4. The other offending involved three complainants and offences which mainly occurred in or near Inverell and which may have commenced in late 1977 but occurred primarily in the period from mid-1979 to early 1983. It was reported later and became the subject of the second trial, which occurred in April and May 2011.

5. The statutory prohibition on the disclosure of the identities of the complainants has not been lifted. Although each is now an adult, the prohibition continues because each was under 18 years of age when the offending occurred. The first three charges, which involved events between November 1977 and November 1980, involved a victim who will be referred to as “V1”. A further four charges, which occurred between May 1979 and May 1980, involved a second victim who will be referred to as “V2”. The remainder (12 charges) involved a third victim, “V3”, and occurred between January 1981 and March 1983, in a variety of different locations, mostly in northern New South Wales.

(2)   Conviction appeal – 2009 trial

(a)   Background to Chandler offences

6. The applicant met Mr Chandler when the latter was a student in the Barker College cadet unit. The cadet unit was run by teachers at the school with assistance from volunteers. In 1990 the applicant was working for a business known as Sydney CB Radios. He was invited to attend the annual cadet camp in April 1990 to instruct the students in the use of radios. In October 1990 the complainant joined a specialist platoon with a focus on signalling and first aid. At around that time they met and the applicant developed a practice of driving the complainant home after school. On occasion, he would ask the complainant to take his penis out and to lie with head on the applicant’s lap. He told the complainant that he was making him learn to trust him. During cadet training the applicant would frequently single the complainant out for particular tasks, but would also ridicule him in front of other cadets.

7. At a cadet camp in April 1991, the applicant administered a suppository to the complainant, over the latter’s objections (conduct which constituted count 1 on the indictment). At the same camp, he gave the complainant a Vitamin C injection in his buttock.

8. In early 1991, the applicant offered the complainant paid work on weekends in his radio business, which he accepted. At about that time, the complainant and two friends broke into club rooms at a playing field in Wahroonga. Shortly after the break-in, the applicant received a request to install a security system at the club. The complainant confessed his involvement in the offence to the applicant, resulting in “a hiding” with a leather strap, administered at the applicant’s house at Towlers Bay (count 2). Thereafter the applicant sexually assaulted the complainant, showing him a pornographic video, engaging in mutual masturbation and other touching of the genitals (counts 3-5). At this stage, the complainant was a month shy of his 16th birthday.

9. Shortly after he turned 16, the applicant engaged in anal intercourse with the complainant and other forms of aggravated indecent assault (counts 6-8). The incidents took place during a cadet camp at Pittwater, the applicant taking the complainant to his house at Towlers Bay. The following night, further similar sexual activity occurred at Towlers Bay (counts 9-11 and 18). The conduct was repeated on the third night (counts 12-14) and on the fourth night (counts 15-17).

10. Shortly after those incidents, a friend of the complainant, CC, asked him about the applicant’s behaviour at the camp. The complainant reported this to the applicant who chastised him. He then arranged for both the complainant and CC to come to his house at Towlers Bay, on the following weekend. He gave them both a hiding, CC being taken into the house while the complainant stayed outside. The complainant said he heard about ten cracking noises. The complainant was then taken in and beaten about ten times with a paddle (count 19).

11. In late 1991 the complainant, wishing to put an end to the applicant’s conduct, rang the applicant and told him that he would tell his parents, the school and the Police. The applicant was furious, collected the complainant after school and drove to Mooney Mooney, where the applicant did not beat him, but forced him to masturbate (count 20).

12. In late 1991 various related indecent assaults occurred, with the complainant being required to masturbate the applicant (counts 21, 22 and 23).

13. There was a cadet camp on the Australia Day weekend in January 1992 near Woy Woy. The applicant required the complainant to sleep with him in joined sleeping bags, with the applicant masturbating both of them (count 24).

14. The various indecent assaults were aggravated offences, the applicant being in a position of authority over the complainant. [3] As to three of the offences which occurred in late 1991, the jury convicted only of indecent assault, on the basis that the element of aggravation was absent. Otherwise, the applicant was convicted on all charges.

    3. Crimes Act 1900 (NSW), s 61M(3)(c).

(b)   grounds of appeal

15. The primary witness for the prosecution, and generally the only witness with respect to individual offences, was the complainant, Sascha Chandler. However, the prosecution also sought to rely upon supporting evidence from two other witnesses, involved in uncharged offences of a similar kind. These were other former students at the school and in the cadet unit, one being the complainant’s brother, Dion Chandler, the other being a fellow student, CC. More will be said about the detail of their evidence shortly.

16. In each case, the evidence was held to be admissible as either tendency or coincidence evidence, pursuant to s 97 or s 98 of the Evidence Act1995 (NSW). Each of grounds 1 and 2 alleged that the trial judge failed to give proper consideration to “the issue of concoction” in determining whether the evidence had “significant probative value” for the purposes of the respective sections. Ground 1 related to the evidence of Dion Chandler; ground 2 to the evidence of CC: they were otherwise in identical terms.

17. Grounds 3 and 4 related specifically to the evidence of CC. Ground 3 alleged that the trial judge had failed to consider “at all” whether his evidence had significant probative value for the purposes of s 97(1)(b) and s 98(1)(b) of the Evidence Act. Ground 4 complained that the trial judge had failed to consider whether the probative value of the evidence “substantially outweighed” any prejudicial effect, for the purposes of s 101(2) of the Evidence Act.

18. Ground 5 alleged that the trial judge had erroneously admitted the evidence of Dion Chandler as to beatings he had received from the applicant as “context evidence”, the judge having previously ruled the evidence to be inadmissible.

19. Ground 6 involved two challenges to the directions to the jury. First, it was said that the trial judge failed to distinguish between tendency evidence and coincidence evidence. Secondly, it was alleged that the judge failed to direct the jury as to the permitted use of such evidence. This ground related to the evidence of both Dion Chandler and CC.

20. Ground 7, at least as articulated in submissions, alleged that the applicant had been denied a fair trial because of the form of a direction as to how the jury might use any assessment of the credibility or reliability of the complainant with respect to one offence in considering other offences.

(c)   evidence of other offending

21. CC was in the same year as the complainant at Barker College and was in the same special platoon in the cadet unit. CC gave evidence of the occasion in November 1991 when both he and the complainant were at the applicant’s Towlers Bay house. He gave evidence of having been beaten with a belt, having then been sent out of the house to sit on the wharf and told to tell the complainant, who was on the wharf, to go inside. His evidence was consistent with that of the complainant, including with respect to the manner in which they arrived (by boat) and the complainant’s account that the applicant had told them to jump into the water and hold onto a rope while he drove the boat around the bay.

22. Given the grounds of challenge in the notice of appeal with respect to his evidence, it is necessary to refer to the cross-examination of CC. He agreed that he had made two statements, one to the complainant’s solicitor in November 2005, which had been revised in March 2006, and one to the Police on 5 March 2007. He was asked whether he had discussed with the complainant what he should put in either statement before making it, which, as to any detail, he denied. [4]

    4.    Tcpt, 18/06/09, p 673.

23. CC also gave evidence of a camp at West Head which took place after the beating. His description was anodyne, although he agreed that the complainant was one of the students at the camp and that he did not recall seeing him on the two nights they were in the bush. (These were nights when the complainant said the applicant took him back to his house for the night.)

24. CC was cross-examined about his evidence as to the camp at West Head, which had not been referred to in either of his statements. He agreed that he had only remembered the camp when asked questions in the witness box.

25. With respect to the possibility of concoction, counsel put to CC both that he had spoken with the complainant and that he had read his statement prior to making his own statement. He was taken to a passage in his first statement concerning the beating where he said that “the welts and bruising that I sustained lasted for the next month and a half.” [5] The following further passages were then put to him:

    5.    Tcpt, p 678(30).

“Q.   Do you remember saying something along these lines in your statement ‘during this encounter I switched off completely and allowed myself to drift off into a happier place’.

A.   Yeah, I remember saying it.

Q.   So you remember saying that?

A.   Yep.

Q.   What I’m going to suggest to you that you said was ‘I let my mind wander to another place because I just could not stand facing up to what I was going through’?

A.   That’s correct.

Q.   What I’d suggest to you I read to you prior to that about ‘Switching off completely and allowing myself to drift into a happier place’ was something that Sascha Chandler said in his statement of 14 April 2005. Would that be right?

A.   I don’t know.”

26. The purpose behind this questioning was to challenge his denial of reading the complainant’s statement before preparing his own. The two descriptions of switching off during the beating, although not identical, were similar and CC accepted that he had made both statements, when they were put to him. He nevertheless denied knowing that one of them came from the complainant’s statement. No doubt the evidence raised a possibility of contamination, although arguably not one carrying much weight, but that was a step short of concoction.

27. Dion Chandler gave evidence that the first cadet camp he was involved in occurred in June/July 1991, starting at the applicant’s house at Towlers Bay and ending at West Head. (That placed the event some months before, rather than after, the incident of the beatings at Towlers Bay.) Dion was 1½ years younger than his brother. He said that the applicant and his brother left the camp to go back to the applicant’s house on the first and second nights of the camp. He claimed that he could tell that his brother “was very close to” the applicant.

28. Dion Chandler also worked for the applicant installing car phones on Saturdays. He said that work began in 1993. On one occasion, he recognised a customer as a teacher at the school and struck up a conversation. The applicant, who was present, told him to “shut up”. He was told to get back in the applicant’s van. He was allowed to return to help with the work after the customer went into her house. When they got back into the car, the applicant was angry and told him that he was “going to get a hiding”. He was given an alternative to take off his pants and sit next to the applicant with his pants down around his ankles, while the applicant drove. He chose that option. [6] The applicant insisted that he not cover his genitals with his hands. He wanted the boy to say that he trusted the applicant. [7]

    6.    Tcpt, 16/06/09, pp 516-517.

    7.    Tcpt, p 519.

26. The prosecutor returned to 1991, confirming that when Dion Chandler joined the cadet unit, he was in C company. The questioning continued: [8]

    8.    Tcpt, pp 520-522.

“Q.   Do you remember any specific time shortly after you joined C company that you went to the bunker with the accused?

A.   Yes. After cadets, when my brother was done there he’d often meet Andy after cadets down at the bunker, which was almost like the headquarters of the specialist platoon, next to number 3 oval at the school. There was one time we went down there and he had given me an injection.

Q.   Could you describe that?

A.   Yeah. I mean this was a trust exercise. I know he’d done this to my brother before, my brother he had actually told me he had received an injection, and we went down to the bunker. Somehow we got into a situation where Andy had taken out his medical kit which he had down there. He asked me if I’d ever had an injection in my buttocks before, which I hadn’t, and then he said, ‘Well, do you trust me to give you an injection in your buttocks? It won’t hurt. There’s nothing wrong with it’, and then so again of course yes, I trust him.

Q.   Why did you say that?

A.   Again out of fear. I just wanted to show him that I trusted him. You know he was at that stage a bit, he was a friend, well, he was an elder sort of authority figure in my life so I did, I said ‘absolutely I trust you’ and then, so in order to prove it, I know he had, he was taking out a needle, there was no syringe, there was nothing attached to it, he just took a needle out of the sterilisation thing from his medical kit. He asked me to take down my pants again, my brother was in the room during the whole thing, and he asked me to bend over his knee, and then he just sort of pinched my buttocks, pushed it in, sat it there and said , ‘See, that didn’t hurt at all, did it?’.

…

Q.   Did he say anything after he’d finished administering that syringe to you?

A.   He told me how it didn’t hurt again, ‘thank you for trusting me, you can pull your pants back up.’

Q.   Did he say anything else?

A.   He told me that he loved me, which was just a, I mean that was a common thing, whenever he administered punishment or anything like that to me it would always be hugging afterwards, ‘thank you for trusting me’, ‘I’m doing this for your own good’.” [9]

9.    Italics added to identify challenged evidence.

30. Following that evidence, counsel for the accused made an application for the discharge of the jury on the basis that a prior ruling had excluded evidence from Dion Chandler as to previous beatings and maltreatment. The application, to which further reference will be made below, was rejected. Counsel then proceeded with the cross-examination of Dion Chandler. He elicited that the witness had made a statement at his brother’s request in February 2006 and later statements to the Police on 14 December 2006, 13 August 2008 and on 15 June 2009. The last statement, made during the trial, followed a conversation with his brother, who was then being cross-examined. The last statement was the first occasion on which he had referred to the two events set out above. It was expressly put to the witness that he had concocted both events as a result of discussion with his brother. He denied the suggestion. [10]

    10.    Tcpt, 17/06/09, p 542(35)-(50).

(d)   tendency and coincidence evidence

31. Grounds 1-4 all relate to the admissibility of the evidence of CC and Dion Chandler, under ss 97, 98 and 101 of the Evidence Act. Ground 5, dealing with “context evidence” is also concerned with the admissibility of the evidence of Dion Chandler. It is convenient to deal with these grounds together; ground 7, concerning a jury direction, will be addressed later.

(i)   Legal principles

32. There was reference at the trial and on appeal to both tendency and coincidence evidence; nevertheless, the original application by the prosecution was based on a notice given under s 97 of the Evidence Act relating to the tendency rule. Although reference was made without objection to coincidence evidence, the evidence referred to above was admitted as indicating a tendency that the applicant had to act in a particular way and to have a particular state of mind. The case for the prosecution was that the evidence demonstrated a tendency of the accused:

1. to assault young males, occasioning them actual bodily harm by beating them on the buttocks either with his hand or an implement;

2. to display a sexual interest in Sascha Chandler during 1990, 1991 and 1992;

3. to display a sexual interest in Sascha Chandler, Dion Chandler and CC during 1990, 1991 and 1992 by beating them on their naked buttocks or watching them in the showers.

33. The qualified prohibition on the admissibility of such evidence is identified in s 97 of the Evidence Act in the following terms:

97   The tendency rule

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

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

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

34. There is a further constraint in the form of a prohibition against the use of such evidence “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.”[11]

    11. Evidence Act, s 101(2).

35. For reasons to be explained shortly, the question of “concoction” arose only peripherally in the present case. However, the reliance by the applicant on the possibility of concoction as a basis for rejecting the admissibility of the evidence raises an issue as to the relevant legal principle being invoked. Its relevance arises from the need for the court to be satisfied that the evidence will have “significant probative value”, for the purposes of s 97(1)(b) and, further, that the probative value will be sufficient to substantially outweigh any prejudicial effect, for the purposes of s 101(2).

36. In his written submissions, the applicant contended that tendency evidence is “not admissible where the prosecution has failed to exclude the reasonable possibility of concoction and/or contamination.” That proposition was derived from the pre-Evidence Act case of Hoch v The Queen. [12] In the course of oral submissions, counsel for the applicant conceded that this proposition is not consistent with the language of the Evidence Act. The statutory scheme now in force was explained by Spigelman CJ in R v Ellis. [13]

    12. (1988) 165 CLR 292 at 294-295; see also Pfennig v The Queen (1995) 182 CLR 461 at 481.

    13. [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[96]; see also AE v R [2008] NSWCCA 52 at [44] (Bell JA); BJS v R [2011] NSWCCA 239 at [24]-[26]; BJS v R [2013] NSWCCA 123; 231 A Crim R 532.

(ii)   Rulings on admissibility

37. The trial judge made a preliminary ruling on admissibility on the second day of the trial, 4 June 2009. Aspects of the proposed evidence were excluded and need not be considered further. Evidence of other acts committed by the accused on the complainant were admitted; no challenge arises in relation to that part of the ruling. With respect to Dion Chandler, the trial judge rejected the evidence sought to be led for the following reasons: [14]

“I do not permit any evidence to be led from Dion Chandler. In my opinion what happened to him, assuming it happened, occurred well after the events the subject of this trial. To admit that evidence into the Court would be to do nothing more than to admit evidence going to the bad character of the accused. In my opinion there could not properly be classified as tendency evidence.

…

To admit the material relating to Mr Dion Chandler is to admit material not relating directly to the complainant, but to someone else that would tend to show, or would show that the accused committed a crime against another person at a subsequent time.”

14.    Judgment on admissibility of evidence, 4/06/09, at 2.

38. It is not necessary to refer to the material under consideration in this passage: although the applicant claimed that the evidence later led by the prosecution had been excluded, it is clear that what was excluded was evidence of subsequent offending and not evidence of events contemporaneous with the charges involving the complainant.

39. The judge ruled that evidence of CC about “a particular beating on a particular day” would be admitted. It was admitted as tendency evidence “because it occurred on the same day as a similar beating was administered to the complainant, and it occurred in or about the same place.” [15] The judge reserved his position with respect to certain other aspects of CC’s statement which he said did not appear to him “to go to establishing anything terribly much, such things as the accused shouting at him and belittling him and belittling other people.” [16]

    15.    Ibid at 3.

    16.    Ibid.

40. Finally, the trial judge made reference to a submission by the prosecution that evidence of “uncharged acts” could be given as “context evidence.” Although it is not entirely clear what material was being considered, this passage was referred to in relation to ground 5 and may conveniently be set out in full: [17]

“I have said that I will admit that evidence as going to tendency. I do not propose to admit it as going to context. When all the evidence is given about all these acts, that in itself sets a context, there is no need to complicate the matter further by telling the jury they can look at some of those matters only if they establish a context. I think it would create enormous confusion and difficulty so I do not propose to admit it on that basis.”

17.    Ibid.

41. As will be seen, it is the first sentence of that passage which is significant: it is apparent that the judge was referring to evidence which was to be admitted and not the evidence which had been excluded.

(iii)   Assessment of probative value – concoction

42. The role that a possibility of concoction or contamination may play in the application of s 97 requires careful consideration. The first question requires the assessment of whether the proposed evidence has significant probative value. That assessment may depend on whether the evidence is accepted by the jury or not. If it is rejected in its entirety, it will have no probative value. On the other hand, if it is accepted in its entirety, it will still be necessary to assess its probative value. That exercise is separate from the assessment of its possible prejudicial effect.

43. Two questions arise in this context: first, are questions of reliability and credibility relevant in assessing probative value? Some assessment must be made both for the purposes of ss 97 and 98 and for the separate exercise required under s 101. The latter section has a similar function (though the language differs) to s 137, which requires the Court to refuse to admit prosecution evidence “if its probative value is outweighed by the danger of unfair prejudice to the defendant.” The proper approach to assessing probative value for the purposes of s 137 was discussed in R v XY. [18] In that case the Court, following R v Shamouil,[19] held that the function of the judge in applying s 137 was to assess the capacity of the evidence to support a particular finding, but it is not its credibility and reliability, those being matters to be left to the jury if the evidence be admitted. [20] That approach depended in part on the definition of “probative value” in the Dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect that assessment of the probability of the existence of a fact in issue”. [21] Spigelman CJ in Shamouil noted that “[t]he focus on capability draws attention to what it is open for the tribunal of fact to conclude.” [22] Further, the words “rationally affect” were apt to refer to “capability rather than weight”. [23]

    18. [2013] NSWCCA 121; 84 NSWLR 363.

    19. [2006] NSWCCA 112; 66 NSWLR 228.

    20. XY at [2].

    21. Emphasis added; see XY at [43] referring to the reasoning of Spigelman CJ in Shamouil at [61].

    22.    Shamouil at [61], emphasis in original.

    23. Shamouil at [62]; XY at [43].

44. In the discussion which followed in XY, I considered the extent to which reliability and credibility could be involved in the exercise to be undertaken by the judge under s 137. In particular, that discussion noted that the term “credibility” can be used to refer to plausibility, objectively considered. On the other hand, it may refer to an assessment of the truthfulness of the witness. [24] The term “reliability” can have similar nuances of meaning.

    24. XY at [49].

45. In adopting the reasoning in Shamouil and XY, it is appropriate to acknowledge that the exercise to be undertaken pursuant to s 97 differs in one respect from that likely to arise under s 137. It was noted in XY [25] that the question of exclusion under s 137 was likely to arise in isolation from the full circumstances of the prosecution case. By contrast, both s 97 and s 98 require the judge to assess the probative value of the proffered evidence “either by itself or having regard to other evidence adduced or to be adduced” by the prosecution. Acknowledging the difference in statutory language, the practical differences will often be less marked. That is partly because the exercise required by s 137 will not be carried out in total ignorance of the other evidence to be called in the prosecution case. Similarly, as demonstrated by the conduct of the present case, a decision to admit evidence under ss 97, 98 and 101 is most likely to be made before the full detail of the prosecution evidence has been revealed. The primary reason for the additional language in ss 97 and 98 is that, like the general law principle relating to “similar fact evidence”, tendency and coincidence evidence cannot have probative value except in a context where, for example, both the conduct of the accused and the relevant tendency to act have been identified with some particularity.

    25. XY at [44].

46. The concept of “concoction” suggests a deliberate fabrication of the evidence. By contrast, the term “contamination” may involve an unconscious process of suggestion being adopted.

47. Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury. Accordingly, the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted.

48. It should be acknowledged that this conclusion is inconsistent with the approach identified in the leading Australian text, Cross on Evidence. [26] However, that reasoning appears to have relied upon cases which predated R v Ellis in 2003. [27] Further, the view accepted here appears to be consistent with the explanation of R v XY accepted by the author of Cross as the applicable law in this State. [28]

    26.    JD Heydon, Cross on Evidence (LexisNexis, 10th ed, 2015) at 768.

    27. See R v OGD (No 2) [2000] NSWCCA 404; 50 NSWLR 433; R v Colby [1999] NSWCCA 261.

    28.    JD Heydon, “Is the Weight of Evidence Material to its Admissibility?” (2014) 26 Current Issues in Criminal Justice 219 at 227 and 237.

49. In the present case, both Dion Chandler and CC were cross-examined in an attempt to cast doubt on the reliability of their evidence. The cross-examination was tentative, in the sense that while the possibility of conversations between the complainant and the witness were suggested, the possible content of those conversations was not explored, the topic being identified at a high level of generality. In any event, these challenges took place after the evidence had been admitted and not before. If a possibility of concoction at a level sufficient to affect the capacity of the evidence to bear significant probative value were to be identified, it would probably have been necessary to carry out a reasonably searching cross-examination on the voir dire, before admissibility was ruled on. That did not happen. Thus, the reason why the trial judge did not consider the possibility of concoction in making his rulings, was that it was neither relied upon by counsel for the accused at trial, nor was it inherently necessary for the judge to consider such matters in assessing significant probative value.

50. Given the manner in which the evidence unfolded, the absence of reference to the possibility of concoction in the assessment of admissibility was unsurprising. On any view, it revealed no error on the part of the trial judge.

(iv)   Tendency – evidence of CC

51. The probative value of the tendency evidence adduced from the two witnesses differed significantly and requires separate consideration. The evidence of CC in relation to the beating at Towlers Bay was detailed, virtually contemporaneous with the evidence of the beating of the complainant, provided detail which rendered it highly plausible and, in effect, complemented the evidence of the complainant who had been sitting outside the house on the wharf while CC was inside receiving a beating. It is beyond doubt that the evidence of CC, if believed, had significant probative value. It inevitably gave significant support to the evidence of the complainant with respect to that particular count.

52. So far as potential prejudice was concerned, it revealed the commission by the applicant of an uncharged offence. However, the sexual connotations were muted and the offence itself was not of such a kind as to engender strong feelings of, for example, disgust. The prejudicial effect being somewhat muted, and there being little likelihood that the jury would misapply the evidence in considering the charged misconduct, the judge was entitled to be satisfied that the probative value substantially outweighed any prejudicial effect.

53. It is clear from the passage set out at [39] above that the trial judge made an assessment of the probative value of the evidence sought to be called from CC. Although he did not expressly adopt language consistent with s 101 of the Evidence Act, he did, in respect of other evidence dealt with in the same reasons, state that he would be “unable to conclude that the probative value would substantially outweigh the prejudicial effect.” That evidence was excluded. Further, as counsel for the Director noted, at a number of points the judge indicated that he would give “more detailed reasons later”. Having delivered those reasons, the trial judge stated his understanding that he had dealt with the matters he had been asked to rule on. [29] The prosecutor agreed and noted that, in respect of the part of the ruling rejecting certain evidence, he did not require any further reasons. The trial judge responded: [30]

“That will save me some effort. But I will give the reasons obviously for the other material in a fuller way. I only indicate at this stage that I have had regard to ss 97, 101, 135 and 137 and I think it’s 192. I will explain more fully at a later point the way in which I have reasoned. I thank both counsel for their submissions.”

29.    Tcpt, 04/06/09, p 79(1).

30.    Tcpt, p 79(15).

54. In fact no further reasons were given, but neither were further reasons sought.

55. There is a further difficulty with the challenge based on a failure to assess prejudice. The question of prejudice was specifically raised in the course of submissions, primarily in relation to earlier offences, some of which had been rejected by a jury. In that respect counsel had submitted: [31]

“At the end of the day we would say that if you apply ss 97 and 101 of the Evidence Act, the prejudice, bearing in mind the passage of time and the other matters I have raised, far outweigh probative value, and in my submission it makes it impossible for Mr McIntosh to get a fair trial.”

31.    Tcpt, p 69(11).

56. Further, in the course of submissions and prior to the ruling noted above, the judge asked counsel for the accused, “[a]re you in any way prejudiced because he says now there is coincidence as well as tendency?” [32] Counsel responded:

“In relation to the other two boys, your Honour, probably not. But I would probably be asking – and I thought I might as well flag, if your Honour were minded to make such a direction, if you were minded to allow in the evidence of Chandler Junior and [CC] I would probably be minded depending on how the evidence falls to ask your Honour for a direction in relation to the possibility of concoction.”

32.    Tcpt, p 74(28).

57. With respect to Dion Chandler, there was an issue raised as to the date of the offence against him, being subsequent to the offending against the complainant, [33] which was the ground upon which the trial judge was minded initially to reject Dion Chandler’s evidence. No such issue arose with respect to the evidence of CC.

    33.    Tcpt, p 73(5).

58. For these reasons, grounds 2, 3 and 4, relating to the admissibility of the evidence of CC must be rejected.

(v)   Tendency – evidence of Dion Chandler

59. Grounds 1 and 5 related to the admission of the evidence of Dion Chandler: ground 1 was based on the premise that it was admitted as tendency evidence; ground 5 assumed it was admitted as “context evidence”.

60. To the extent that ground 1 was based on the failure to consider the issue of “concoction”, that matter should be rejected for the reasons given above. The submissions with respect to ground 5 were chronologically confusing. As discussed above, Dion Chandler was cross-examined to establish two propositions (which the witness unequivocally accepted), namely that the first time he had related each of the complaints of assault was in his statement of 15 June 2009; that is, in the statement which was given during the course of the trial and which post-dated by some 10 days or more the earlier ruling in which the evidence then proposed to be led from him had been rejected. The basis upon which Dion Chandler was eventually called, on 16 June 2009, was not entirely clear. On the previous afternoon, in the absence of the jury, counsel for the accused had raised the possibility that there would be “some application tomorrow morning”, brought by the prosecutor. Counsel apparently knew that there might be new evidence from Dion Chandler, “which none of us has ever heard about and which could be interesting to say the very least.” [34]

    34.    Tcpt, 15/06/09, p 442(5).

61. On the morning of 16 June, the further statement was tendered on a voir dire and was subject to discussion, but no evidence was called on the voir dire. Objection was taken by counsel for the accused on the basis that one episode probably took place in 1994, about a year after the last offending against the complainant. Counsel also relied upon the circumstances of the alleged assaults as being “entirely different” from the circumstances described by the complainant.

62. The judge was conscious that he needed to look at s 100 (dealing with the absence of a notice) as well as ss 97 and 98 of the Evidence Act. [35] The judge expressed the view that it was really coincidence evidence; the prosecutor accepted that possibility and said that he relied upon both ss 97 and 98. [36] There was further discussion about the degree of similarity and the degree of prejudice in respect of the proposed evidence of a “post 1993 event”, as well as a 1991 event. [37]

    35.    Tcpt, 16/06/09, p 446(9).

    36.    Tcpt, p 446(42).

    37.    Tcpt, p 447(25).

63. In holding that Dion Chandler could give the evidence sought to be adduced by the prosecution, the trial judge, in a judgment delivered on 16 June 2009, expressly dealt with the question whether the evidence would have significant probative value, for the purposes of ss 97 and 98. It was admitted both as tendency evidence and coincidence evidence. Before dealing with the challenge to this ruling, it is necessary to note the timing and the basis of an application for the discharge of the jury, which came immediately after Dion Chandler had given his evidence in chief. That application did not focus on the two incidents which the judge had ruled were admissible, but on incidental references to previous beatings by the accused. [38] The basis of the application was identified with more precision the following day, counsel identifying the following objectionable passages in the evidence: [39]

    38.    Tcpt, p 524.

    39.    Tcpt, p 526, being passages from pp 516(45), 519(10) and 521(47); see also [29] above.

“Q.   What did he say to you?

A. He said to me that I was going to get a hiding. That was when he actually sent [me] into the car in the first place. When he got back into the car he gave me the option of either coping that hiding, which is what he used to refer to them as.

…

Q.   Why did you tell him that?

A.   Because I was fearful if I didn’t, if I showed that I didn’t trust him I would get a hiding as I often did.

…

Q.   Did he say anything else?

A.   He told me that he loved me which was just a, I mean, that was a common thing. Whenever he administered punishment or anything like that to me it would always be hugging afterwards ‘thank you for trusting me’.”

64. The objection was to the addition of gratuitous reference to regular punishment and responses on other occasions. Counsel noted that he could not cross-examine on the material without opening up the further evidence which had properly been rejected at the outset of the trial. The prosecutor submitted that the reference to beatings on other occasions was contextual evidence which tended to show that there was an ongoing relationship between the accused and Dion Chandler which involved beatings, huggings and assurances about him trusting the accused.

65. In rejecting the application to discharge the jury, the trial judge accepted the prosecutor’s submissions. [40] He noted that the nature of the beatings was not revealed but that the evidence was tendered “to give some understanding of why it is that on the occasion at the house Mr Chandler would accept an alternative to a beating.” Absent such an explanation it would appear that “suddenly something happened out of the blue that had never happened before and he took a course of exposing himself rather than being beaten although he didn’t know what a beating would mean.” The trial judge concluded: [41]

“I will tell the jury that there is evidence of a relationship between them and that that context of that relationship appears to … be that there had been beatings of some kind, followed by huggings and reassurances and statements of trust, and this had occurred earlier and this might help them to understand the context of what occurred on the day concerned, about which he does give factual evidence. But they should not speculate about what those other beatings were or when they occurred. They should not go any further than considering what the evidence is.”

40.    Judgment on application to discharge jury, 17/06/09, at 3.

41.    Ibid at 4.

66. There is no complaint as to the way the evidence was left to the jury. Nor, in terms, is there a challenge to the dismissal of the application to discharge the jury. Nor was ground 5 expressed in a manner which fairly reflected what happened in this regard at the trial. It was not the case that the judge admitted evidence in relation to previous beatings, which he had previously ruled inadmissible. No more was allowed in than the somewhat oblique references which the judge considered necessary to explain the context in which admissible threats and responses occurred. As counsel for the accused recognised, this was quite a different matter from detailed evidence of what occurred on earlier occasions, being the very evidence which he did not wish to adduce (in cross-examination) explaining the oblique references to earlier events.

67. The submissions in support of this ground took a slightly different approach. It was accepted that “relationship evidence” could be given with respect to the accused and the complainant, but, noting that Dion Chandler was not the complainant, it was submitted that the principle did not extend to a relationship between the accused and a witness in relation to evidence not the subject of charges.

68. Accepting that the Court is not to be assisted by authority (none being identified) the matter must be addressed as a question of principle. There are two bases upon which the evidence might properly be admitted. The first is that the existence of a relationship between the witness and the accused was an integral part of the evidence to be admitted as tendency evidence. If the evidence of specific incidents was itself admissible as tendency evidence, those aspects which rendered it plausible, in the sense of being comprehensible, could not properly be excluded. A second approach is to treat the evidence as demonstrating a relationship, as distinct from tendency evidence, an approach accepted by Hodgson JA in R v Leonard. [42] On that basis, neither s 97 nor s 101 is engaged. If the evidence carries a danger of unfair prejudice, its exclusion will depend on the operation of s 137.

    42. [2006] NSWCCA 267; 67 NSWLR 545 at [49]-[54].

69. The distinction between relationship evidence and tendency evidence may not always be as clear as the passage in Leonard suggests. One difficulty with s 97 is that it is expressed in neutral terms, referring to evidence of “the character, reputation or conduct of a person, or a tendency that a person has or had … to act in a particular way, or to have a particular state of mind”. The tendency rule is a rule of exclusion subject to qualifications. However, it is well understood that, understood in context, its function is to exclude evidence which would reflect badly on the accused’s character generally or might lead the jury to reason that a person who has been guilty of misconduct on other occasions may be the kind of person who would commit the offence charged. In some circumstances, such reasoning will be legitimate and hence the evidence will have “probative value”; in other circumstances it will not, and will be an element of “prejudice”.

70. If the concept of “tendency” evidence revealed in s 97(1) is not to be understood in a neutral way, the same is not necessarily true of “relationship” evidence. Indeed, the concept of a relationship will often be assumed to be neutral and for that reason not subject to exclusion under the tendency rule. In other circumstances, which will include the present case, the relationship revealed is, if not abusive, at least capable of being abusive. In that event, the evidence will have the potential to give rise to prejudice in the same way that tendency evidence can have that effect.

71. In some circumstances evidence as to a person’s character or conduct in the past, used to explain why a complainant acted in a particular way, may be said to fall outside the tendency rule because the evidence is admitted, not to prove that the accused had such a tendency, but rather to prove the complainant’s belief as to that fact, which may depend on reputation. [43] If such evidence is to be excluded because of its potential prejudicial effect, that must occur, again, under s 137. While there is a similarity between that analysis and the present case, namely that the evidence was relied upon to demonstrate the plausibility of the witness’ response to the offender’s demand, there is an important point of distinction. Thus, Dion Chandler, in giving evidence of his state of mind, relied not upon the reputation of the accused, but what the accused had done to him in the past. While what had in fact happened in the past was neither identified nor explained with any specificity, the evidence had the potential to be treated as evidence of past misconduct and should therefore be treated as subject to the tendency rule.

    43. J Anderson, N Williams and L Clegg, The New Law of Evidence (LexisNexis, 2nd ed, 2009) par 97.14, referring to R v Preston (Court of Criminal Appeal (NSW), 9 April 1997, unrep) and R v Taumaialo [2000] NSWCCA 14 at [16]-[19] (Grove J, Sully and Simpson JJ agreeing).

72. In the present case, the better view is to treat the evidence as an inherent part of that which was admitted as tendency evidence. There is no doubt that it had significant probative value, and because of its generality, viewed in the circumstances of the case, the danger of prejudice was relatively slight. Whatever the precise articulation of the challenge, ground 5 should be rejected.

(vi)   Jury direction – tendency and coincidence

73. The challenge to the directions was that the judge did not adequately distinguish between tendency and coincidence evidence. That complaint is fraught with difficulties for the applicant. First, the trial judge gave a number of directions to the jury with respect to tendency evidence during the course of the trial and his summing up. No objection was taken to any of the directions.

74. Secondly, it is clear, both from the way the evidence was addressed and from the fact that the prosecution did not initially seek to rely upon the evidence as demonstrating a degree of improbability that events occurred “coincidently”, that the need to deal with the evidence as “coincidence evidence” was obscure.

75. Thirdly, the written submissions in support of the ground suggested that the way the matter was left to the jury was inconsistent with the factors identified in the notice given under s 97, referred to as the “tendency notice”, and with arguments put in the absence of the jury when questions of admissibility and discharge were raised. Accepting that matters were put differently at different times, that fact does not of itself demonstrate that the directions given to the jury were erroneous.

76. Fourthly, there having been no request for a further direction, the Court invited counsel to formulate the direction which he contended should have been given. The direction proffered was taken from the bench book as a suggested direction with respect to tendency evidence. Additions were made to insert the nature of the tendencies relied upon. There was no reference to the distinction between tendency and coincidence evidence. The proposed direction did not advance the challenge raised in the ground of appeal. It did, however, demonstrate the need for careful attention to the terms of a proposed direction in circumstances where none was sought at trial.

77. Turning to the substance of the summing up, as the final but not the only direction given to the jury, the discussion of tendency and coincidence evidence covered three full pages as transcribed. [44] It is not necessary to set out the whole of the directions in order to address the complaint that there was a failure to distinguish tendency and coincidence evidence. However, there was discussion of the elements, broadly expressed, demonstrating that the accused had a tendency to act in a particular way. There was also an explanation as to why events described in terms of striking similarity might rebut a finding that the similarities were coincidental. It was not correct to say that the judge failed to address the distinction.

    44.    Summing up, 02/07/09, pp 22-25.

78. The failure to seek an appropriate direction is not fatal, although leave is required to raise the matter on appeal. [45] However, in some cases, of which the present is an example, it is not possible for the appellate court to know whether the failure to seek a further direction was a forensic decision or a culpable omission by trial counsel. This was not a case in which it was said that the risks of prejudice were insufficiently articulated. Rather, the complaint was a failure by the trial judge adequately to explain how tendency and coincidence evidence could properly be used by the jury in its deliberations. However, where the probative value of the evidence was, on one view, powerful, counsel may well have thought that to seek more precise and detailed directions as to how the jury could properly use the evidence would not assist his client.

    45. Criminal Appeal Rules (NSW), r 4.

79. In circumstances where there was no complaint that the directions were positively misleading, and where counsel had some difficulty in formulating in adequate terms the proposed missing direction, this is not a case in which leave should be granted pursuant to r 4.

(e)   Conclusions – 2009 trial

80. The Court should make the following orders:

1. Grant the applicant leave to appeal against his convictions, limited to grounds 1-5 in the statement of grounds of appeal filed on 29 September 2014;

2. refuse leave to appeal, with respect to grounds 6 and 7;

3. dismiss the appeal.

(2)   Conviction appeal   - 2011 trial

(a)   background

81. In March 2011 the applicant was placed on trial on 18 counts, involving three complainants. Counts 1-3 related to a single complainant (V1) involving two separate events which occurred at or near Inverell. The first event involved a request that V1, then aged 9 years, kiss him at a local roller-skating rink. That event occurred between November 1977 and November 1979. Although the periods overlapped, the second set of events probably occurred later and between November 1978 and August 1981. Each involved an indecent assault at a property near Inverell where the applicant was living, the first in the applicant’s bed, and the second shortly thereafter in the shower.

82. Five further charges (counts 4-7) involved a second young male, V2. The first three charges were related, the conduct again occurring near Inverell, the period being specified as between May 1979 and May 1980. The victim was then 15 or 16 years of age. There were three charges of indecent assault involving masturbation and simulated intercourse and a fourth charge involving the victim lying across the applicant’s knees whilst the applicant smacked his naked backside with his hand.

83. The next eleven charges (counts 8-18) involved V3, another young male victim. There was several separate events involved. The first two charges related to an event between January and August 1981 in Sydney where the applicant whipped the victim’s naked buttocks with an electric jug cord and then had simulated sex with him.

84. The next charge took place in late 1981 or early 1982 on a work-related trip to Armidale and involved anal sex at a motel. The third event involved a similar offence in a parking area at Warialda. The fourth set of events occurred near Inverell between January 1981 and March 1983. The first charge related to a form of punishment, the applicant assaulting the victim with the handle of a feather duster, causing bruising. He then proceeded to have anal sex with him. Sometime later the victim’s mother saw the bruising caused by the assault and, when the applicant learned of the disclosure, he carried out a further assault with the feather duster (count 18).

85. There were then four further events each giving rise to a single count. All were said to have taken place between January 1981 and March 1983; each involved an incident of anal sex, in northern New South Wales. One further matter involved an indecent assault, namely rubbing the victim’s penis, during the course of the accompanying anal intercourse.

86. Each of the three victims grew up in Inverell, where the applicant lived throughout the period of the offending. In each case the applicant knew both the boys and their families. He exploited those relationships to obtain access to the boys, whom he abused in the manner identified in the charges.

(b)   procedural background

87. The manner in which the two sexual assault trials were initially managed is not entirely clear from the material before this Court. However, there were issues raised before either trial as to the admissibility of evidence sought to be tendered both of other charges and of uncharged events. The first pre-trial ruling with specific reference to the second trial gave rise to the primary grounds of appeal in relation to the convictions arising from the second trial. Thus the steps taken with respect to the initial application need to be identified.

88. At some point the Chandler matter, heard in 2009, was separated from the 18 counts concerning the three complainants V1, V2 and V3, which were set down for a joint trial. Following the Chandler trial, the matter came back before the District Court on 1 October 2010. It appears to have been known at that stage that a further trial was to commence on 25 October 2010, although the ex officio indictment with respect to two of the victims appeared not to have been filed. [46] The matter was stood over until 7 October 2010. On that date it was accepted that the trial fixed for 25 October involved only one complainant, V3, the other matters being pending in the Inverell Local Court. [47] It was then anticipated that 24 October could be used to deal with pre-trial issues. [48]

    46.    Tcpt, 01/10/10, p 3.

    47.    Tcpt, 07/10/10, pp 3-4.

    48.    Tcpt, p 7.

89. On 15 October 2010, a decision having been made to lay ex officio indictments, the Director issued tendency evidence notices with respect to five complainants, being V1, V2 and V3, two other complainants whose evidence was not ultimately led and with respect to the convictions relating to Sascha Chandler’s complaints.

90. On 25 October 2010 the accused appeared before Judge Finnane and was duly charged in accordance with an amended indictment containing 19 counts. One count was later dropped (in relation to V3), but nothing turns on that. The matter proceeded on the basis of an objection to the tendency evidence, that application being treated as conclusive as to the basis on which the trial (or separate trials) would proceed. In short, were the prosecution not permitted to call the evidence of each complainant in respect of the counts involving the others, there would be separate trials: if the evidence of each was permitted as tendency evidence in respect of each other, there would be a joint trial. No witness was called in the course of the application which proceeded on 25 and 26 October. The judge delivered his reasons and rulings on the second day.

91. The substance of the objection to joint trials was identified by counsel for the accused as three-fold, namely:

1. (a)   the substantial differences in the ages of the complainants;

2. (b)   substantial differences in the nature of the charges, and

3. (c)   as a particular of (b), the fact that there were charges of buggery only in relation to V3. [49]

   49.    Tcpt, 26/10/10, p 28(35).

92. Detailed submissions were made with respect to those issues, based on the Director’s tendency notice together with statements of each witness, sought to be called to demonstrate tendency. On the second day, discussion focused on difficulties attending the proposal to call evidence from one witness whose claims had gone to trial, a jury accepting some, but not the most serious of the charges. There was also reference to the fact that Sascha Chandler had made public statements with respect to the assaults on him. Further, the judge noted the difficulty with sentencing the accused, which had not been done prior to the proposed second trial. There was a further issue with respect to a third witness involved in other complaints.

93. The discussion extended to the known facts that V1 knew V2 and V2 had spoken with V3. The prosecutor said in this regard: [50]

“On the evidence before your Honour there is, the Crown submits, insufficient evidence to engage any issue with concoction. Because there has been no request to call the witnesses to put matters to more [sic] explore this issue.

I wanted to bring that to your Honour’s attention. That’s not to say there’s been any firm resolution of the matter by my learned friend at all. But at this stage it doesn’t seem, on the evidence presently available, that it’s an issue that your Honour needs to be troubled by.”

50.    Tcpt, p 24(15).

94. The judgment given on that day gave careful consideration to the matters relied upon by the prosecutor and counsel for the accused, before ruling that the charged offences against V1, V2 and V3 “were related to one another in such a way as to cause them to go into separate trials would [be] to create complete unreality as well as unduly prolonging proceedings.” [51] He therefore directed that there would be a single trial. He accepted that Mr Chandler could give evidence as to the assaults on him, a second witness proposed by the Director could not and, with respect to a third witness, he reserved his position, although that witness was not ultimately called.

    51.    Judgment, 26/10/2010, p 15.

95. The trial was then fixed to commence on 11 April 2011, which it did. At the outset the trial judge directed that Mr Chandler be known by a pseudonym. Counsel for the accused, who had not appeared at any earlier stage in the proceedings, requested “a Basha inquiry in relation to each of the complainants.” [52] In ordinary language, the request for a Basha inquiry meant that counsel for the accused sought an opportunity to question each of the complainants on oath before the trial judge, but in the absence of the jury. [53] The basis, which was not immediately revealed due to the unwillingness of the trial judge to consider the application, arose from a disclosure of fresh allegations by V3 to the prosecution (and recently disclosed to the accused), together with the fact that the charges relating to V1 and V2 had only been joined following an ex officio indictment, there having been no completed committal hearing.

    52.    Tcpt, 11/04/11, p 4(15).

    53. See R v Basha (1989) 39 A Crim R 337 at 339 (Hunt J, Carruthers and Grove JJ agreeing).

96. The events of the first day of the trial, 11 April 2011, can be broken into three parts. First, there was the application by counsel for the accused for an opportunity to examine the complainants on the voir dire. That was refused in uncompromising terms, on the basis that any such application should have been made in October 2010.

97. The second stage of the hearing occurred immediately thereafter, when the prosecutor indicated that he wished to call evidence of threats made to V3 that the accused would blow up his family if he went to the police, and as to V3’s belief that he had explosives available to him. The prosecutor also foreshadowed evidence of flight on the part of the accused. Following his arrest and release on bail, the accused was said to have bought a boat in a false name and sailed to Moreton Bay, where he obtained moorings under a false name, paying for expenses in cash. The trial judge indicated concern in relation to the use which might be made of both these matters, concluding that the evidence should be presented first to him on a voir dire in relation to the question of flight, which arose shortly after the laying of charges with respect to V3.

98. In the light of that material, the trial judge changed his mind with respect to the application by counsel for the accused, noting that V3 would have to be called on a voir dire and that he would “want to hear from him about all aspects of the case, including complaint, the way threats worked on him and so on”. [54]

    54.    Tcpt, 11/04/11, p 26(5).

99. The third stage involved the conduct of a voir dire which then took place, continuing into the following day, in the course of which each of the complainants was called. V1 gave evidence as to how he came to speak to police. In his statement he had said that “a couple of weeks ago” his brother had telephoned him to say that the police were inquiring about the accused and allegations of assault which had “something to do with sex”. [55] There was reference in the statement to dinners at his mother’s house, at which V2 was present on occasion. He was asked whether, following the telephone call from his brother, he spoke with V2 “or any of the other people about [the accused] and about what happened?” [56] He said in reply, “no I don’t have contact at all.” He said he had been living in the Newcastle area since 1994.

    55.    Tcpt, pp 57(2) and 58(15)-(25).

    56.    Tcpt, p 59(50).

100. V1 also referred in his statement to the possibility that it had occurred to him that the accused had “given [V3] a flogging”. [57] However, in response to questions as to whether he had ever spoken to V3 about the incident when he had seen V3 coming out of the accused’s house with red eyes, as if he had been crying, said “no, never”, and when asked whether he had spoken to V3 about what happened to V2 and V1 himself, said “no, never.” [58]

     57.    Tcpt, p 63(35)-64(25).

     58.    Tcpt, p 64.

101. V2 also made a statement. [59] V2 had been friendly with V3 in the years prior to making the statement in April 2007; he agreed that some three years before he had made his statement he had had a telephone conversation with V3, who had asked him “did he ever belt you?” and “did he ever give you a flogging”, referring to the accused. He also agreed that V3 had told him that the accused had “done sexual things to him as well”, but denied that he had told him “what was involved.” [60] He agreed that on one occasion he had met V3 and they had discussed things. He accepted that he had spoken of the accused giving him a flogging and “just sexual things happen and they’re not right.” [61] He later agreed that the conversation extended to “putting on the condoms on and stuff like that and trying to keep an erection and stuff like that, cause I had a girlfriend and he wanted me to you know perform like a stud.” [62]

     59.    Tcpt, 13/04/11, p 108-109.

     60.    Tcpt, p 110.

     61.    Tcpt, p 111(5)-(15).

     62.    Tcpt, p 112.

102. With respect to V3, counsel for the accused took the opportunity to explore the subject matter of the further conference with the prosecutor, notes from which had been served shortly prior to the hearing. The prosecutor raised an objection to that course, but the trial judge allowed it to continue. [63] Like the other two complainants, V3 was contacted by police to give a statement. He said that the police first spoke to V3’s sister, who had contacted him. He was asked whether his sister told him something to the effect that the police were investigating the accused “having sexual activity with boys or young men” and replied: [64]

“No she just said that it was about him so I knew exactly what it would be about.”

63.    Tcpt, 12/04/11, p 86(40)-(45).

64.    Tcpt, p 88(47).

103. V3 agreed that he had spoken on the telephone to V2 as they were good friends, although V2 lived in Newcastle and they did not have much direct contact. [65] V3 also agreed that he had asked V2 whether he would be interested in giving a statement. The cross-examination continued: [66]

“Q.   Righto, how did you know that [V2] would either want to or be able to do that?

A. Well I knew that [V2] was at my place, I think it was one Christmas and – and he just questioned me about [the accused] and – and we both knew that something had happened and we said at that time, I don’t want – I said to [V2], I said, ‘I don’t want to talk about this, I never want to talk about this’ and so we never ever did.”

65.    Tcpt, p 89.

66.    Tcpt, p 90(5).

104. V3 accepted that they both prepared lists of persons who might be able to assist the police, but they did not swap lists. He also said that he had no knowledge of the accused being involved in sexually inappropriate behaviour with students at Barker College in Sydney. [67]

     67.    Tcpt, p 91.

105. Following the voir dire, both counsel made submissions: there was no application for a separate trial and no issue was raised with respect to the admissibility of tendency evidence. Understandably, on the material set out above, there was no suggestion of concoction or even contamination.

(c)   ground 1(a) – failure to reconsider pre-trial ruling

106. The premise underlying this ground was never clearly articulated. The Court was taken in submissions to the detail of the exchanges between counsel for the accused and the trial judge during the first stage of the hearing on 11 April 2011. The submissions then set out the discussion during the second stage, when the judge accepted that there should be a voir dire and that each of the three complainants should be called. Finally, extracts were provided from the transcript, including the critical passages set out above.

107. Despite the fact that the complainants were cross-examined as to their contacts with each other, the trial judge having expressly allowed that course to be taken, the submissions proceeded on an assumption that trial counsel believed that no further application could be made for a separate trial, nor could he reopen the question of whether evidence on one count would be admissible on counts involving other complainants, because the trial judge had already ruled on that issue in October 2010 and had refused to reconsider it in the first stage of the hearing on 11 April 2011. It is, however, an implausible explanation of what happened on 11 April 2011. After being adamantly opposed to reopening pre-trial issues which had been addressed some six months earlier (and for understandable reasons) the judge expressly stated that he had changed his mind at the second stage of the hearing on 11 April, following which the complainants were cross-examined in the manner referred to above. The most plausible explanation for what then happened was not that counsel thought he was precluded from making a further application but, on an entirely reasonable assessment of the evidence which had been adduced, concluded there was no tenable basis for any submission with respect to concoction or contamination, which might lead to a different ruling.

108. Further, the Director submitted, without challenge, that “no questions were asked of the complainants as to [the issue of concoction] throughout the trial proper.” The ground was without substance and should not be the subject of a grant of leave pursuant to s 5(1)(b) of the Criminal Appeal Act.

(d)   grounds re admission of tendency evidence – miscarriage

109. As to the use of the evidence of V1, V2 and V3 in respect of the counts involving each other, the submission that the evidence of each was inadmissible as tendency evidence was based squarely upon the possibility of concoction. The written submissions for the applicant, which were not relevantly expanded upon at the hearing of the appeal, focused squarely on common law principles without reference to the terms of the Evidence Act which have been explained above in dealing with the appeal from the first trial. However, the challenge must fail on the factual basis already noted, namely that there was no support in the evidence for an allegation of concoction or contamination. Even under the common law principles, speculation without foundation was not a basis for rejecting tendency evidence.

110. The submission with respect to Mr Chandler’s evidence was placed on a different basis, Mr Chandler and his complaints being unknown to the complainants in the second trial, until the trial commenced. Rather, reliance was placed upon the lack of a temporal relationship between the events described by Mr Chandler and those described by the complainants, the assaults on the complainants pre-dating those on Mr Chandler by some seven years. It was submitted that there was no “sequential connection” between the offences; they occurred in “different geographical areas” and the ages of the various victims varied. Furthermore, there was no evidence of “intervening behaviour” which might have linked the conduct at Inverell with the conduct involving Mr Chandler.

111. It may be accepted that these factors (and other factors) may well provide points of distinction which would warrant careful consideration under s 97 of the Evidence Act. Ultimately, a mechanical analysis of the kinds of factors which have led to evidence being excluded in other cases and other circumstances will not demonstrate error in the present case. That which the trial judge needed to focus upon, and did on the only occasion on which he was invited to rule on the matter, was whether or not the evidence on one count could bear significant probative value with respect to the other counts (for the purposes of s 97(1)(b)) and whether that probative value would substantially outweigh any prejudicial effect (for the purposes of s 101(2)).

112. This was not a case in which there was any doubt as to the identity of the alleged assailant, nor was it a case in which there was evidence of any basis for vindictively concocting false charges (other than, no doubt, the sexual abuse itself). Nor did the applicant deny association with the complainants and their families. He simply denied that the assaults and sexual activity occurred with any of the boys.

113. In these circumstances, the evidence of any one of the witnesses, if believed, would have provided very significant support for the evidence of others. The analysis set out by the trial judge in his reasons in October 2010 was persuasive. There was no attempt to identify flaws in the reasoning. Although it is appropriate that there be a grant of leave with respect to these grounds, the challenges must be rejected.

114. It follows that the applicant is entirely unsuccessful in his appeal against the convictions which resulted from the second trial.

(3)   Appeal against sentence

(a)   basis   of sentencing

115. The applicant was not sentenced with respect to the offences against Sascha Chandler until after the trial with respect to the other three complainants. There is no complaint made about that course. After a hearing on sentence which in fact commenced with the tender of some material prior to the second trial, and continued over several days between 27 May 2011 and 19 July 2011, the applicant was sentenced on 22 August 2011. Given the number of convictions, the judge sentenced the applicant to an aggregate period of imprisonment with a single non-parole period. That course was entirely appropriate and there is no complaint about it.

116. There are, however, nine purportedly separate grounds of appeal. They can be grouped in four categories, namely:

1. (a)   the indicative sentences given in respect of “old” offending;

2. (b)   the indication of the specific sentences for individual offences;

3. (c)   the manner in which the aggregate sentence was reached, and

4. (d)   general considerations as to the seriousness of the offending.

117. Even these categories are somewhat artificial, but they will provide a sufficient structure for what follows.

(b)   indicative sentences for old offences

118. A distinction is to be drawn between the offences with respect to Mr Chandler, which occurred between May 1991 and January 1992 and those involving the three complainants in the second trial which occurred between November 1977 and March 1983. With respect to the earlier offences, there were different statutory provisions, with differing maximum penalties. It is not in doubt that the judge was required to deal with the earlier offences in accordance with the statutory regime for sentencing which was in force at the time the offences were committed. Indeed, the same principle applies with respect to the offences in 1991-1993, there having been further changes in the succeeding 20 years. The significance of the distinction between the two groups of offences is that there were significant increases in the maximum penalties for various sexual offences as a result of the Crimes (Amendment) Act 1989 (NSW).

(e)   manifestly excessive sentence

143. A number of grounds are properly addressed under this heading. First, it was said that the judge erred in setting a parole period of 12 years (ground 2). Secondly, it was said that the judge erred in his assessment of the seriousness of the offending behaviour (ground 5) and in assessing the impact of the offending behaviour on the victims (ground 6). The complaint that the indicative sentences were manifestly excessive (ground 9) can only be treated as a basis for concluding that the actual sentence imposed was manifestly excessive.

144. There were two other grounds, which did not take matters any further. Ground 7 (which was expressed to be in the alternative to grounds 3-6) alleged that the exercise of discretion “miscarried” in the approach to “the fixing of sentences.” That, as addressed in the written submissions, referred to the manner in which the judge dealt with the old offences and thus to particular indicative sentences. Finally, there was a complaint that the judge failed to have “adequate regard to the principle of totality”. This ground appears to be based upon a misapprehension. If it were intended to submit that the total effective sentence was disproportionate to the offending, it was merely a statement that the aggregate sentence was excessive. That is an unnecessary extension to the established use of the phrase “the principle of totality”. The principle has generally been applied where separate specific sentences are imposed for a series of offences which, when accumulated, give rise to an overall period of imprisonment which appears excessive in all the circumstances. That principle will generally require a reduction of the overall sentence by permitting a higher degree of concurrency than might otherwise be deemed appropriate. Subject to one possible qualification, the principle of totality has no application in respect of an aggregate sentence.

145. A possible qualification to the last proposition may arise where the sentencing judge has arrived at the aggregate sentence by assessing the appropriate indicative sentences for individual offences and then indicated degrees of concurrency or accumulation for each, so as to arrive at an aggregate figure. Although there may be circumstances in which that is an appropriate, or at least a possible approach, it was not the approach adopted in the present case. With a large number of offences, that exercise will tend to undermine the purpose of aggregate sentencing. Accordingly it need not be further considered.

(f)   assessment of error

146. There is no doubt that the judge took (and was entitled to take) an adverse view of the applicant and his offending. He described the criminality as “very serious” and the applicant as a “persistent recalcitrant offender who has no remorse for what he has done.” [99] If entitled to leniency for some of the earlier offending, there were, nevertheless, a multiplicity of offences for which no leniency could be accorded. Having defended all of the charges (as was his undoubted entitlement) the applicant obtained no discount of the kind commonly provided on a plea.

     99.    Judgment on sentence, p 35.

147. Because the sentences were imposed under the current legislation, it was necessary for the judge to have regard to the terms of s 44 of the Sentencing Procedure Act, as he did. In imposing a sentence of 32 years imprisonment, with a non-parole of 20 years, it was necessary to make a finding of “special circumstances” in order to avoid the balance of the term of the sentence not exceeding one-third of the non-parole period, contrary to s 44(2). The finding of special circumstances was based on “the length of the overall sentences [sic] and the non-parole period and the need to give some incentive to the offender to undertake rehabilitation courses designed to stop sexual offending.” [100]

     100.    Judgment, p 38.

148. The judge dealt in some detail with the various separate offences for which the applicant had been convicted. There are four issues to be addressed with respect to the manner in which the course of offending was dealt with.

149. First, the judge referred at the outset of his reasons to the 1988 convictions for offences which had occurred in Grafton in 1985 and 1986. Those offences post-dated offences committed mainly in or near Inverell, which were the subject of the second trial. It appears that he denied the applicant any degree of leniency with respect to the earliest offending, because of the later offences for which he had already been convicted and sentenced.

150. Secondly, the judge noted that, having served a non-parole period of less than two years with respect to the Grafton offences, “within a short time of his release” he committed further offences against Sascha Chandler. The judge also noted that those offences were committed between April 1991 and 28 January 1992, when the offender was “on parole for the offences he had committed in Grafton in 1985 and 1986.” [101] However, for reasons noted above, it is probable that the parole period had expired in March 1991; in any event, there was no evidence to show that it was continuing after that period. It was therefore an error to treat as an aggravating factor the possibility that the offender was on parole at the date of any of the offences against Sascha Chandler, let alone (as appears to be the case) in respect of all those offences.

     101.    Judgment, p 2.

151. Thirdly, although the judge dealt with the offences against each victim, he did not do so chronologically. That had two consequences. One was that he gave no leniency in indicating individual sentences for the earliest offences. The second factor was that no express account was taken of the age of the offender at the time of the earliest offences.

152. Fourthly, and this matter provides in part support for the view that the concerns expressed above had practical consequences, some of the indicative sentences appear to be excessive. The first offence involved kissing V1 at a roller-skating rink. The offence was said to have occurred between 5 November 1977 and 2 November 1979. There was some variation as to the offender’s date of birth in the various reports in evidence on sentence, but the judge accepted that he was born on 7 December 1957. [102] However, the judge also stated that he was 21 or 22 years of age when he “first became involved in paedophile crime in Inverell”. [103] An offence committed as early as 5 November 1977 could have been committed shortly before his 20th birthday. There was no finding that it was committed at some later time. V1 was said to be 9 years old at the time of that event. Taken in isolation, and having regard to the applicant’s age at the time, it was not the kind of indecent assault which would have warranted a sentence of imprisonment. Nevertheless, the judge indicated a separate sentence of imprisonment for one year. On the assumption that sentences of imprisonment would have been imposed for other offences, it may be that some short (perhaps nominal) period might have been imposed because no other sentence would have been appropriate. Nevertheless, the sentence of one year was outside any reasonable range for that offence.

     102.    Judgment, p 31.

     103.    Judgment, p 33.

153. The next two offences involving V1 were more serious. They occurred at a time when V1 was between 10 and 13 years and involved simulated intercourse by the offender placing his penis between the boy’s thighs, whilst the boy was in his care. There is no doubt that each involved serious offences of indecent assault and warranted a sentence of imprisonment. They were, however, the first offences of their kind and the imprisonment would have been, if imposed within a reasonable time after the offending, the first offences for which the applicant would have been imprisoned. A good guide to the appropriate range is provided by the similar offences for which he was convicted in 1988 and on each of which he was sentenced to imprisonment for two years by Maxwell J in the Supreme Court. Against this background, the imposition of the maximum available sentence of five years imprisonment, as indicated by the primary judge, was outside the available range. Further, it should have been noted that the two offences having occurred on the same night, there would have been a high degree of concurrency, if not complete concurrency of the two sentences.

154. With respect to the other offences of simulated intercourse at or near Inverell, the judge also indicated a sentence of five years for each offence (bar one for which no indication was given), in each case being the maximum penalty.

155. There were three further offences of common assault, carrying a maximum period of two years imprisonment, for each of which the judge indicated that the maximum sentence would be imposed.

156. For two further indecent assaults, involving masturbation, sentences of three years were imposed (the maximum being five years). For six counts of buggery, which carried a maximum sentence of 14 years, the separate sentences indicated were, in each case, 12 years.

157. What is remarkable about the indicative sentences is that, despite the care taken in the reasons to identify the features of the specific offending in each case, there was no attempt in fixing the separate sentences to identify where across the range of offences which fell within the particular section of the Crimes Act the individual offending fell. That course would have been required by a proper exercise in sentencing. [104] Indeed, the uniformity of the sentences, together with their proximity to the maximum available sentence suggests that the indications were arbitrary and did not bear a proper relationship to the nature of the offending.

     104. RL at [7]; MPB v R [2013] NSWCCA 213; 234 A Crim R 576 at [12].

158. There is a similar level of arbitrariness with respect to the indicative sentences for offences against Sascha Chandler. The severity of the early sentences may be partly a reflection of the view that they were committed whilst the applicant was on parole for the Grafton offences. If that had been the case, it would have been a serious aggravating circumstance, which needed to be established as a matter of fact. It was not so established: indeed, it was probably not correct. Those offences should have been dealt with on the basis that the applicant was not then on parole.

159. Much of the offending was undoubtedly serious and formed part of a course of conduct which was abusive, both in the sense of physical abuse and abuse of the offender’s authority over the victim. Nevertheless, touching the victim on the crutch after showing him pornographic videos was not an offence which warranted four years imprisonment (count 3). With respect to the assaults, most were explicitly sexual, involving masturbation or simulated intercourse. With respect to those which were not overtly sexual, but involved “punishment”, the judge was satisfied that they involved sexual gratification of the offender and could properly be described as sadistic and humiliating. [105] The sentencing judge also properly noted that the Inverell offences involved two victims who were very young at the time and the third a vulnerable teenager. [106] On the other hand, it should be accepted that the applicant did not hold a position of authority over the boys (as he did with Sascha Chandler) and he himself was then considerably younger, being in his early 20s.

     105.    Judgment, p 28.

     106.    Judgment, p 31.

160. The proposed variation of a number of the indicative sentences does not lead to any necessary conclusion as to the length of the aggregate sentence. Nevertheless, without significantly diminishing the judge’s assessment of the seriousness of the offending, a period of 32 years imprisonment is excessive. The judge made a finding of “special circumstances” so as to permit a period of possible parole well in excess of the statutory default ratio of one-third of the period of mandatory custody. The reason given for that course was to give the applicant an incentive to undertake appropriate courses in prison, dealing with sexual offending. It may also have been intended to ensure the applicant had a sword over his head should he be tempted to reoffend after release.

161. While the circumstances which may be designated as “special circumstances” for the purposes of s 44 of the Sentencing Procedure Act are not (and should not be) narrowly defined, the purpose identified in the present case does not self-evidently warrant a variation of the statutory relationship. A possible parole period of 12 years extends well beyond any period within which the applicant is likely to obtain useful assistance from the parole authority. More importantly, the court should not assume that parole will be granted at the end of a non-parole period. There must be a reasonable proportion between the aggregate sentence imposed and the offending. On the assumption that a period of mandatory custody of 20 years was the minimum appropriate to the seriousness of the offending, the aggregate sentence was excessive.

(4)   Resentencing

162. Being satisfied of error affecting the sentencing process it is necessary for this Court to determine for itself what sentence is appropriate and, if the result differs from the sentence imposed by the trial judge to substitute the preferred sentence. [107]

     107. Criminal Appeal Act, s 6(3); Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 at [42].

163. Subject to the qualifications noted above, the sentencing judge provided in his reasons a comprehensive description and assessment of the offending, which may be accepted, but need not be repeated. This Court should accept the assessment of the sentencing judge that the offender has “blighted four lives directly and indirectly the lives of others connected with those four men.” [108] As the sentencing judge further noted, the favourable view as to his willingness to change accepted by Maxwell J in 1988, did not materialise. The offending in 1991 to 1993 demonstrated that the favourable expectation was misguided. The sentencing judge accepted that there was “a high risk of reoffending”. [109] The applicant did not give evidence on sentence and did not speak about his offending for those responsible for pre-sentencing reports.

     108.    Judgment, p 36.

     109.    Judgment, p 34.

164. Sentencing for offences committed over 30 years ago, or even 20 years ago, is always problematic. However, the applicant was a mature adult during the more recent offending; he had already received a period of imprisonment for similar offences and he exercised control over a young male student by an exercise of domineering personality combined with humiliation, threats and actual violence, for sexual gratification. A lengthy sentence of imprisonment is inevitable.

165. When indicating the sentences for the individual offences, it is convenient to treat each as a fixed term, without specifying a non-parole period, each being intended to reflect a period of mandatory custody. It is neither necessary, nor appropriate, to address questions of accumulation or totality. These are matters to be assessed in the fixing of an aggregate sentence and non-parole period. There is no basis for a finding of special circumstances to permit departure from the statutory ratio of the non-parole period and the balance of term.

166. Different views have been expressed on this Court as to whether, in relation to offences not subject to a standard non-parole period, it is open to the court to decline to specify a non-parole period, but to impose a sentence which constitutes the intended period of mandatory custody. This is sometimes referred to as a “fixed term” and is used where any parole period would be subsumed within further accumulated sentences. Such a course received the unequivocal imprimatur of this Court, constituted by Handley JA, James and Howie JJ in 2004 in Regina v Dunn. [110] However, in Collier v R [111] RA Hulme J noted that no case adopting that approach referred to the only possible statutory basis for it, namely s 45 of the Sentencing Procedure Act. He continued:[112]

“Construed literally, the discretion provided in s 6 of the Sentencing Act [1989] was to decline to set both a minimum term and an additional term and, in lieu, set a fixed term. Construed literally, the discretion provided in s 45 of the current legislation is to decline to set a non-parole period. Neither provided, in terms, for discretion to reduce a sentence by not including within it an additional term, or parole period.”

110. [2004] NSWCCA 346 at [161].

111. [2012] NSWCCA 213.

112. Collier at [58].

167. Although words should, where possible, be given their ordinary meanings, the literal construction of statutory provisions is sometimes a poor guide to meaning. It is usually necessary to construe provisions as a whole and having regard to their apparent purpose. [113] The present exercise is to determine what is meant by “the sentence” that would have been imposed for each offence, in s 53A(2). The term “sentence” is defined to mean “the penalty imposed for an offence”. [114] There are many provisions relating to the imposition of “a sentence of imprisonment” but the critical provision is s 44, which requires that the court first “set a non-parole period for the sentence” and then set the “balance of the term of the sentence”. It may be inferred that “the sentence” is the combination of the two periods, but because s 45 permits the court to decline to set a non-parole period, that cannot always be the case. The reasons for not setting a non-parole period include “because of any other penalty previously imposed” and “for any other reason that the court considers sufficient”. [115] There is nothing in this language which denies the court the power to approach the specification of a sentence of imprisonment for accumulated offences in the manner described in Dunn. Accordingly, unless there are compelling reasons for not following Dunn, it is at least the entitlement of this Court to follow it, if not its obligation.

     113. Interpretation Act 1987 (NSW), s 33.

     114. Sentencing Procedure Act, s 3(1) sentence.

     115. Section 45(1)(b)( and (c).

168. Putting aside issues with respect to standard non-parole period offences, (which did not exist when Dunn was decided), there is no authority to the contrary (nor did RA Hulme J suggest in Collier that there was). [116] The doubts as to the correctness of such a sentence were noted in Convery v R [117] and in RJB v R; [118] however, fixed terms have been imposed in numerous cases. There have been a number of cases in which this Court has had to consider whether a fixed term was intended as a reflection of the period of mandatory custody identified by a non-parole period, or whether it was intended to be the full sentence, undivided into non-parole period and balance of term. [119]

     116. Compare Lipchin v R [2013] NSWCCA 77 at [17] (Hidden J, Bathurst CJ and Button J agreeing); Tuvunivono v R [2013] NSWCCA 176 at [10] (in my judgment).

     117. [2014] NSWCCA 93 at [23] (McCallum J, Simpson and Adams JJ agreeing).

     118. [2015] NSWCCA 93 at [48] (Hidden J, Meagher JA and RS Hulme AJ agreeing).

     119. With respect to recent cases see Mariam v R [2013] NSWCCA 338 at [58] (Simpson J, Price and RA Hulme JJ agreeing]; Black v R [2013] NSWCCA 265 at [52] (Bellew J, Hoeben CJ at CL and Johnson J agreeing).

169. However, if all of this is wrong and the indicative sentences are required to be a combination of a non-parole period and a balance of term, even in cases where the standard non-parole period provisions do not apply, then the relevant sentences are those set out in the Schedule below, increased by one-third, in accordance with the norm prescribed by s 44(2) of the Sentencing Procedure Act.

170. Having regard to (i) the extent of the offending; (ii) the seriousness of the individual offences, and (iii) the real risk of reoffending, a sentence of some severity is required. An aggregate sentence of 24 years imprisonment should be imposed. Absent special circumstances, there should be a non-parole period of 18 years. A schedule indicating the separate sentences which would have been appropriate for the individual offences is attached.

(5)   Orders

171. The Court should make the following orders:

1. With respect to the 2009 convictions -

1. grant the applicant leave to appeal against the convictions for all offences;

2. dismiss the appeal.

2. With respect to the 2011 convictions -

1. grant the applicant leave to appeal limited to ground 2;

2. With respect to ground 2, dismiss the appeal.

3. With respect to the appeal against the aggregate sentence -

1. grant the applicant leave to appeal;

2. set aside the sentence imposed in the District Court on 22 August 2011;

3. in place thereof, impose an aggregate sentence, and

4. sentence the applicant to imprisonment for 24 years with a non-parole period of 18 years, to commence on 28 December 2008. The first date on which the offender is eligible for parole is 27 December 2026.

172. HIDDEN J: I agree with the orders proposed by Basten JA in respect of the conviction appeals, and with his Honour’s reasons.

173. As to sentence, I also agree with the aggregate sentence proposed by his Honour and, generally, with his reasons. My only reservation is his Honour’s approach to specifying fixed terms of imprisonment as the indicative sentences. In my view, it is the total term (or head sentence) for each offence which should be indicated, not the minimum period of mandatory custody. Only in this way can it be demonstrated that, in arriving at the aggregate sentence, a sentencing judge has properly assessed the criminality of each offence.

174. I share the view of RA Hulme J, referred to by Basten JA at [166], about the discretion provided by s 45 of the Crimes (Sentencing Procedure) Act to decline to set a non-parole period. Of course, on many occasions sentencing judges set a fixed term which represents the appropriate non-parole period for a particular offence when that sentence is part of a sentencing structure involving cumulative or partly cumulative sentences, an exercise which is obviated by the aggregate sentence procedure. However that may be, the determination of the minimum period of mandatory custody for an offence may be affected by discretionary considerations different from those governing the determination of a head sentence. It is that sentence which reflects the assessment of the criminality of an offence, taking into account all the relevant circumstances, objective and subjective, and it is that assessment which should be reflected in an indicative sentence.

175. For the purpose of the present case, however, I am content to adopt the pragmatic approach suggested by Basten JA at [169].

176. WILSON J: I agree with Basten JA.

SCHEDULE OF SENTENCES FOR INDIVIDUAL OFFENCES

(1) OFFENCES SUBJECT TO 2009 TRIAL

Count	Offence	Particulars	Max Penalty	Date	Indicated Sentence
1	Gross indecency on person under 18 years, namely 15 years S 78Q(1) Crimes Act	Suppository administered to the complainant	2 years	1.04.91 – 20.04.91	6 months
2	Assault occasioning actual bodily harm S 59 Crimes Act	Break-in punishment: complainant hit 12 times with leather belt	5 years	14.04.91 – 17.05.91	10 months
3	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	Touched complainant’s crotch whilst watching pornographic movie	7 years	14.04.91 – 17.05.91	6 months
4	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	Applicant masturbated himself and complainant	7 years	14.04.91 – 17.05.91	2 years
5	Aggravated indecent assault (person under authority). S 61M(1) Crimes Act	In shower after masturbation applicant touched complainant’s genitals	7 years	14.04.91 – 17.05.91	6 months
6	Homosexual intercourse with person above 10 years and less than 18 years, namely 16 years S 78K Crimes Act	The applicant anally penetrated complainant	10 years	31.05.91 – 1.08.91	4 years
7	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 6, simulated intercourse	7 years	31.05.91 – 1.08.91	2 years
8	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 7 – applicant touched complainant’s genitalia in shower	7 years	31.05.91 – 1.08.91	6 months
9	Homosexual intercourse with person above 10 years and less than 18 years, namely 16 years S 78K Crimes Act	Night after counts 6-8, applicant anally penetrated complainant	10 years	31.05.91 – 1.08.91	4 years
10	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 9, simulated intercourse	7 years	31.05.91 – 1.08.91	1 year
11	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 10, applicant touched complainant’s genitalia in shower	7 years	31.05.91 – 1.08.91	6 months
12	Homosexual intercourse with person above 10 years and less than 18 years, namely 16 years S 78K Crimes Act	Night after counts 9-11, applicant anally penetrated complainant	10 years	31.05.91 – 1.08.91	4 years
13	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 12, simulated intercourse	7 years	31.05.91 – 1.08.91	1 year
14	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 13, simulated intercourse	7 years	31.05.91 – 1.08.91	1 year
15	Homosexual intercourse with person above 10 years and less than 18 years, namely 16 years S 78K Crimes Act	Night after counts 12-14, applicant anally penetrated complainant	10 years	31.05.91 – 1.08.91	4 years
16	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 15, simulated intercourse with complainant	7 years	31.05.91 – 1.08.91	1 year
17	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	After count 16, applicant touched complainant’s genitalia in shower	7 years	31.05.91 – 1.08.91	6 months
18	Gross indecency with person under the age of 18 years, namely 16 years S 78Q Crimes Act	Applicant inserted an enema hose into complainant’s anus and pumped saline solution into his anus	2 years	31.05.91 – 1.08.91	10 months
19	Assault occasioning actual bodily harm. S 59 Crimes Act	Applicant his complainant with wooden paddle 10 times	5 years	1.10.91 – 1.12.91	1 year
20	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	Applicant made complainant masturbate him	7 years	31.08.91 – 1.12.91	2 years
21	Indecent assault S 61M(1) Crimes Act	Applicant made complainant masturbate him in the van (convicted w/o element of aggravation)	7 years	31.10.91 – 6.12.91	1 year
22	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	Applicant made complainant masturbate him at bunker at school	7 years	5.12.91 – 29.01.92	18 months
23	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	Applicant made complainant masturbate him in the spa	7 years Found guilty of offence simpliciter	7.12.91 – 29.01.92	1 year
24	Aggravated indecent assault (person under authority) S 61M(1) Crimes Act	Applicant masturbated himself and complainant in van	7 years	23.01.92 – 28.01.92	1 year

(2) OFFENCES SUBJECT TO 2011 TRIAL

Count	Offence	Particulars	Max Penalty	Date	Indicated Sentence
1	Indecent Assault S 81 Crimes Act	Kiss at the roller rink (V1)	5 years	5.11.77 –    2.11.79	1 month
2	Indecent Assault S 81 Crimes Act	Simulated intercourse (V1)	5 years	5.11.78 – 4.08.81	18 months
3	Indecent assault S 81 Crimes Act	Simulated intercourse (V1)	5 years	5.11.78 – 4.08.81	18 months
4	Indecent assault S 81 Crimes Act	Rubbing A’s penis (V2)	5 years	1.07.79 – 4.08.81	2 years
5	Indecent assault S 81 Crimes Act	Simulated intercourse (V2)	5 years	1.07.79 – 4.08.81	2 years
6	Indecent assault S 81 Crimes Act	Simulated intercourse (V2)	5 years	1.07.79 – 4.08.81	2 years
7	Common Assault S 61 Crimes Act	Hit on the bottom with hand (V2)	2 years	1.07.79 – 4.08.81	4 months
8	Common Assault S 61 Crimes Act	Hit on the bottom with jug cord (V3)	2 years	1.01.81 – 31.08.81	6 months
9	Indecent assault S 81 Crimes Act	Simulated intercourse (V3)	5 years	1.01.81 – 31.08.81	30 months
10	Buggery S 79 Crimes Act	Penis in anus (V3)	14 years	1.01.81 – 31.03.83	4 years
11	Buggery S 79 Crimes Act	Penis in anus (V3)	14 years	1.1.81 – 31.3.83	4 years
12	Common Assault S 61 Crimes Act	Hit on bottom with stick of feather duster (V3)	2 years	1.01.81 – 31.03.83	6 months
13	Buggery S 79 Crimes Act	Penis in anus (V3)	14 years	1.01.81 – 31.03.83	4 years
14	Buggery S 79 Crimes Act	Penis in anus (V3)	14 years	1.01.81 – 31.03.83	4 years
15	Indecent Assault S 81 Crimes Act	Masturbating victim’s penis (V3)	5 years	1.01.81 – 31.03.83	1 year
16	Buggery S 79 Crimes Act	Penis in anus (V3)	14 years	1.01.81 – 31.03.83	4 years
17	Buggery S 79 Crimes Act	Penis in anus (V3)	14 years	1.01.81 – 31.03.83	4 years
18	Common Assault S 61 Crimes Act	Hit on bottom with the stick of feather duster (V3)	2 years	1.01.81 – 31.03.83	6 months

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Endnotes

Decision last updated: 09 July 2015