R v Bonython-Wright - [2013] SASCFC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BONYTHON-WRIGHT
[2013] SASCFC 87
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
22 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - EMBARRASSMENT OR PREJUDICE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was convicted, following a trial by jury, of three offences of unlawful sexual intercourse with WP, an offence of indecent assault against WP, and an offence of unlawful sexual intercourse with NW. The offence of indecent assault against WP comprised an act of masturbation which was alleged to have been committed as the appellant simultaneously masturbated NW, followed by the appellant performing fellatio on each of them in turn, whilst they were all in a tent on a camping trip to Deep Creek. The appellant was sentenced to a single sentence of ten years' imprisonment with a non-parole period of six years. The appellant appeals against his convictions and sentence.
The grounds of appeal against the convictions are that:
(1) the evidence of the offending against each complainant was not admissible against the other, and a separate trial of the offence against NW should have been ordered;
(2) the Judge misdirected the jury on the use of evidence of sexual conduct with each complainant in the determination of the offence(s) charged against the other;
(3) the Judge misdirected the jury on the assessment of the complainants' credibility and the relationship between that issue and the onus of proof;
(4) the Judge failed to direct the jury on the proper use of any lies they might find the appellant to have told in evidence; and
(5) the Judge erred in allowing WP to be recalled to give evidence of an initial complaint.
The primary ground of appeal against sentence is that the sentence was manifestly excessive. The appellant also maintains miscellaneous other grounds of appeal against sentence.
Held (by Kourakis CJ, Blue and Stanley JJ agreeing, dismissing the appeals):
(1) The evidence of offending against the complainants was cross-admissible because it made the Deep Creek offending much more probable, and because the similarities in the conduct alleged by each complainant rendered independent fabrication improbable (at [37] - [51]).
(2) The Judge's directions on the use of evidence of sexual conduct with each complainant in the determination of the offence(s) charged against the other explained its salient uses and warned against improper uses (at [52] - [58]).
(3) The Judge's directions were such that there was no real possibility that the jury might have thought a mere preference for the evidence of the complainants could satisfy the criminal standard of proof (at [59] - [70]).
(4) The failure to give a lies direction did not result in a miscarriage of justice because the prosecution did not rely on consciousness of guilt reasoning, and the evidence to which the direction would have related was not apt to be evaluated independently of the evidence of the offending itself (at [71] - [80]).
(5) The re-call of WP did not adversely impact the presentation of the appellant's case and did not result in a miscarriage of justice (at [81] - [88]).
(6) The appellant's sentence was not manifestly excessive when measured against the standard set in R v D (at [99] - [101]).
(7) The appellant's miscellaneous other grounds of appeal against sentence each fail (at [102] - [106]).
Evidence Act 1929 (SA) s 34S, s 34R, s 34M; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 29D, referred to.
R v Turney (1999) 52 SASR 438; Hoch v The Queen (1988) 165 CLR 292; R v M, BJ (2001) 110 SASR 1; Zoneff v R (2000) 200 CLR 234; R v Baring and Leonard [2005] SASC 262; Dhanahoa v The Queen (2003) 217 CLR 1; R v S, DD [2010] SASCFC 80; R v D (1997) 69 SASR 413, considered.

R v BONYTHON-WRIGHT
[2013] SASCFC 87
Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ

KOURAKIS CJ: On 3 April 2013 the appellant was convicted, on the verdict of a jury, of one offence of unlawful sexual intercourse with the complainant NW, three offences of unlawful sexual intercourse with the complainant WP, and an offence of indecent assault against WP. On 20 May 2013, the appellant was sentenced to a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) of ten years imprisonment with a non-parole period of six years commencing on 20 May 2013. The appellant appeals against his convictions and the sentence imposed on them.
The primary complaint of the appellant is that the evidence of the offending against each of the complainants was not admissible on his trial for the offences against the other and that the count charging the offence against NW should therefore have been heard separately from the other counts on the Information. In the alternative, the appellant contends that the Judge misdirected the jury on the proper use of the evidence of sexual conduct with each of the complainants in the determination of the offence or offences charged against the other. The appellant’s other grounds of appeal are that the Judge:
·misdirected the jury on the assessment of the credibility of the complainants and the relationship between that assessment and the onus of proof;
·failed to direct the jury on the proper use of any lies they might find the appellant to have told in the course of his evidence; and
·erred in allowing the complainant, WP, to be recalled to give evidence of an initial complaint.
I would dismiss the appeal. The evidence of the offending against the complainants was cross-admissible because it made much more probable WP’s account of the offence of indecent assault, which WP had testified occurred in the presence of NW, and because the similarities in the conduct alleged by the complainants rendered it improbable that they had independently fabricated their complaints. The Judge’s directions on the use of the discreditable conduct evidence explained its salient uses and warned against any improper use. The failure to give a lies direction did not result in a miscarriage of justice in this case because the jury was not invited to engage in consciousness of guilt reasoning, and the evidence to which the direction would have related was not apt to be evaluated independently of the evidence of the offending itself. The re-call of WP did not adversely impact on the presentation of the appellant’s case at trial, and did not result in a miscarriage of justice, because the prosecution had opened on, and did call, the witness to whom the complaint had been made.
My reasons for so holding follow.
The evidence
The offences against both complainants were alleged to have been committed in 1985. In that year, and indeed throughout the 1980s, the appellant worked as a youth worker with the Department of Community Welfare at Mount Barker but he lived with his wife in Wayville. The appellant was 30 years of age in 1985.
During 1985, world-wide activities were held to focus attention on issues of concern to youth following the proclamation of that year as International Youth Year by the United Nations. The appellant was actively involved in events held in South Australia for that purpose.
The complainant, WP, was born on 10 October 1969. WP met with the appellant during 1984, when he was a member of his high school student representative council, to plan International Youth Year activities for 1985. WP’s meetings with the appellant usually occurred at the Mount Barker office of the Department of Community Welfare but were sometimes held at the appellant’s Wayville home. At one such meeting at the appellant’s house, the appellant supplied cannabis to WP which they smoked together. Thereafter they regularly smoked cannabis when they met. WP testified that the appellant usually smoked cannabis in a pipe or bong but occasionally rolled a joint. The appellant advised WP to use Visine drops after smoking cannabis to clear his bloodshot eyes and to suck on Soothers to disguise the smell of cannabis on his breath.
In 1985 WP became president of his high school’s student council. He continued to meet with the appellant.
WP testified that his first sexual contact with the appellant occurred in February 1985. At the time the appellant was the organiser of the local Mount Barker cinema club. WP testified that one of the films screened by the cinema club early in the year was “Greystoke - The Legend of Tarzan”. WP gave evidence that on the night of that screening, shortly after the film started, he and the appellant left the theatre. The appellant drove WP to the Mount Barker summit. At the summit they again smoked cannabis, supplied by the appellant. Whilst WP was intoxicated by the cannabis, the appellant made sexual advances which culminated in the appellant masturbating WP and performing fellatio on him. In the course of those events, the appellant made complimentary references to the size of WP’s penis. Before they left the summit the appellant urged WP not to disclose what had happened to anyone because it would destroy his reputation and his marriage. The events on that occasion were the subject of count 2. WP was 15 years old at the time.
The appellant and WP continued to meet throughout 1985 and continued to smoke cannabis together. On one of those occasions WP met NW at the appellant’s Wayville home. All three regularly met at the appellant’s home thereafter and often smoked cannabis together. They sometimes attended a city gym together. WP testified that during 1985 he only ever saw NW when he was in the appellant’s company.
WP testified that in November 1985 the appellant, NW and WP went on a camping trip to Deep Creek. WP was then 16 years old. WP gave evidence that on that trip the appellant simultaneously masturbated both him and NW and then had oral sexual intercourse with each of them. The masturbation of WP on that occasion was the subject of the indecent assault charged as count 3 of the Information.
The subject of the unlawful sexual intercourse with WP charged by count 4 of the Information was an occasion on which the appellant fellated WP in the spare bedroom of his Wayville home. This was after the Deep Creek camping trip.
Count 5 charged an offence of anal sexual intercourse which took place on a waterbed in the main bedroom of the appellant’s home in late 1985. This was also after the Deep Creek camping trip. According to WP, that was the last sexual contact with the appellant of any significance.
The prosecutor, in his opening address, told the jury that he intended to call CB, a friend of WP, who would give evidence that, in 1986, WP told him of his sexual conduct with the appellant. WP had given a statement to police that the first complaint he made was to Ms JW many years after the offending, and he had not mentioned the complaint to CB. In light of that statement, the prosecutor did not elicit any evidence of complaint from WP at all, intending to rely on the evidence of CB alone. No pre-trial objection had been taken to the admissibility of CB’s evidence. However, when WP was spoken to after he had been released as a witness, he recalled making the complaint to CB.
The prosecutor sought and was granted permission to recall WP. When WP was recalled, he testified that he did tell CB about the appellant’s offending when they were teenagers. WP testified that he made the complaint face to face with CB in Mount Barker. When CB was called he gave evidence that the conversation took place over the telephone but his testimony was otherwise largely consistent with WP’s evidence.
WP gave evidence that, in 1999, he visited the appellant at his home in Stirling. WP confronted the appellant about his behaviour and accused him of abusing his position of trust. WP gave evidence that the following year the appellant met him in Melbourne and they had a similar conversation.
NW was born on 12 October 1968. He first met the appellant at the Tower Hill Pizza Bar in Holden Hill in 1983. During 1983 and 1984, NW attended a youth centre known as “The Corner” at Gilles Plains, where he was taught pottery by Ms MC. In the latter half of 1983, NW saw the appellant again at The Corner.
NW testified that the appellant first supplied him with cannabis in 1984 after he and a group of friends were taken to a Lebanese takeaway shop in the appellant’s Mazda. After eating they smoked cannabis. The appellant provided NW and his friends with Visine to clear their eyes and Soothers to mask the smell of cannabis on their breath. NW smoked cannabis with the appellant on several more occasions during 1984, including occasions in the appellant’s Wayville home.
NW left school and took up factory work in late 1984 or early 1985. NW testified that he began sleeping over at the appellant’s home on weekends in 1985. They would smoke cannabis together when he visited.
NW testified that the offence of unlawful sexual intercourse charged by count 1 of the Information occurred in July or August 1985. NW was 16 years old at the time. NW was not working at the time because he had lacerated his thumb at work. NW visited the appellant who was recuperating from the removal of his wisdom teeth at his Wayville home. They smoked cannabis together. NW testified that at the appellant’s invitation he joined him in his waterbed where the appellant performed fellatio on him. NW gave evidence that on that occasion, and on frequent subsequent occasions, the appellant made complimentary references to the size of his penis.
NW testified that he met WP through the appellant. NW gave evidence about the camping trip to Deep Creek. He testified that he accompanied WP and the appellant on that trip in November 1985, which was after he had turned 17. NW testified that, by that time, the appellant had performed oral sexual intercourse on him on about six occasions.
NW gave evidence that on the way to Deep Creek in the appellant’s Mazda and whilst they were camping, he, the appellant, and WP smoked cannabis together. NW testified that on one night during that trip the appellant simultaneously masturbated both him and WP. The appellant then performed oral sex on each of them in turn.
NW gave evidence that after he turned 17, he continued to have a sexual relationship with the appellant.
NW testified that he moved in with the appellant and his wife in their Wayville home from early 1987 to 1988. During that time, he travelled with the appellant to Sydney where the appellant introduced him to a prominent Australian rock musician. NW accompanied the appellant to a number of other concerts in Adelaide, where he was introduced to the performers. They also went away to the Ottoway Ranges and Triplet Falls together.
NW testified that in 1988, when he was still living at the appellant’s home, he confided in his pottery teacher Ms MC that he was having a sexual relationship with the appellant. Ms MC gave evidence that NW confided in her that he was having a sexual relationship with the appellant, which had started on an occasion when, on a visit to the appellant’s home, he had joined the appellant in bed. Ms MC testified that, at the time she was told of the relationship, NW was still living in the appellant’s home.
NW’s relationship with the appellant started to wane from 1988. In 1988 NW moved into his own flat.
In late 1992 or early 1993, the appellant phoned NW and they argued over NW’s refusal to source some cannabis for him. In August 1993, the appellant visited NW at Woodside to urge him to keep their sexual relationship secret. NW assured the appellant that his secret was safe. NW explained in his evidence that he gave that assurance because he was so ashamed of his conduct at that time that he had no wish to disclose it.
In June or July 2001, the appellant rang NW to congratulate him on his engagement. NW testified that he was in an emotional state at the time because of his relationship and that he cried during the telephone call.
In about May 2009, the appellant rang NW to give his condolences for the death of NW’s daughter. NW spoke bluntly to him about the appellant’s offending.
The degree of contact between NW and WP after 1985 was, for obvious reasons, an important issue at trial. NW testified that in 1998 he saw WP at the funeral of WP’s brother. WP also gave evidence that NW attended the funeral. WP testified that it was the first time they had met since 1985. NW gave evidence that he and WP never discussed the detail of the appellant’s offending against them. They would refer to the offending generally as “the David issue”.
WP testified that in 2003 he received a telephone call from NW who informed him that he intended to make a complaint to police against the appellant. WP decided that he would not do the same. NW testified that it was in 2004 that he spoke to WP about complaining to police about the appellant’s offending. According to NW he did speak to a police officer in that year but only in general terms and no investigation was launched.
WP testified that, during 2009, he had occasional contact with NW. WP explained that he decided to complain to police after a telephone conversation with NW but testified that he and NW never discussed the detail of their experiences with the appellant. In 2009, WP and NW went to a police station together to report the appellant’s conduct.
NW and WP gave evidence of the following common features of the appellant’s misconduct:
·cannabis was often smoked in the appellant’s Mazda motor vehicle;
·the appellant introduced each of them to a cannabis smoking practice, which he called “a shottie”, in which he would press his lips against theirs and blow cannabis smoke into their mouths;
·the appellant gave them advice to use Visine and Soothers to conceal their use of cannabis;
·sexual conduct was preceded by smoking cannabis;
·sexual conduct occurred in the appellant’s Mazda and his home;
·the appellant sometimes followed each of them to the toilet and occasionally urinated at the same time, crossing urine streams with them, in a practice he referred to as “crossing swords”;
·each complainant accompanied the appellant on occasion to a city gym where they would take a spa together in the course of which the appellant would place his foot up against their crotch;
·on some occasions both complainants visited the gym with the appellant where, again, he would use his feet to touch them whilst they all sat in the spa;
·the appellant often commented favourably on the size of their penises;
·whilst simultaneously masturbating the complainants during the Deep Creek incident, the appellant described what he was doing as skiing;
·when having oral sexual intercourse, the appellant fellated the complainants until they had ejaculated and swallowed their semen (save for one occasion on which the appellant was interrupted by his mother coming into his house);
·the appellant impressed on both complainants the power they had over him in that disclosure of the appellant’s misconduct would destroy his reputation and marriage.

The appellant gave evidence. He admitted that he had extensive contact with WP and NW during 1985, but denied that he engaged in any improper conduct with them. In particular, he denied that he engaged in any sexual activity with them. The appellant testified that, although he took cannabis later in his life, he did not smoke it in 1985 and he never smoked cannabis with the complainants.
The appellant called his wife and a number of other witnesses who had regular and extensive contact with him during 1985. They testified that, even though the appellant used cannabis at a later stage of his life, they never saw him smoke cannabis in 1985.
The appellant’s witnesses also testified, in general terms, that it was unlikely that the sexual activity alleged by the complainants could have occurred in the appellant’s Wayville home without being detected by one or more of the many people who passed through the house. In particular, they testified that the appellant’s wife and friends were almost always with him whilst he was recovering from the removal of his wisdom teeth.
Appeal Ground 3 – Discreditable conduct – separate trials and directions
Ground 3 of the appellant’s Notice of Appeal combines a complaint that the Judge failed to order a separate trial on count 1 of the Information with complaints about the Judge’s directions on the evidence given in the joint trial.
Separate Trials
If all of the material evidence given on count 1 was also admissible on the trial of counts 2 to 5, and the converse was also true, then the Judge’s decision not to order a separate trial of count 1 from the remainder of the Information cannot validly be impugned. For the reasons which follow, I hold that all of the material evidence was cross-admissible.
It is convenient first to consider the admissibility of the uncharged conduct against each complainant on the trial of the charges of which that complainant was the victim, even though there was, and is, no challenge to the admissibility of that evidence for that purpose.
I deal first with count 1 and the evidence of uncharged conduct relating to NW. The evidence that the appellant provided cannabis to NW is plainly discreditable conduct. Nonetheless, it is admissible on the trial of the offence charged in count 1 because it shows how the relationship between the appellant and NW developed to the level of intimacy which resulted in NW accepting the appellant’s invitation to join him in bed when he was recovering from the removal of his wisdom teeth. The use of the evidence in that way does not involve propensity reasoning. Its probative value, in explaining how the offence charged in count 1 came to be committed, substantially outweighs its prejudicial effect.
The evidence of the appellant’s subsequent sexual conduct with NW shows that, at times sufficiently proximate to the commission of the offence charged, the appellant was sexually attracted to NW. The evidence of that sexual attraction circumstantially supports NW’s direct testimony of the commission of the offence because it provides a motive for the appellant’s offending. The commission of an offence of sexual misconduct may appear improbable if it is not viewed in the context of the sexual relationship in which it occurs. In that respect, it has strong probative value, which can be readily distinguished from reasoning from a mere general propensity to commit crimes of the kind charged.
The probative value of the evidence of sexual attraction does not depend on the criminality of the sexual conduct from which that attraction is inferred. Evidence of sexual attraction might, for example, be very relevant in a paternity case to prove an act of sexual intercourse, even though there is no criminality attached to acts which evidence that attraction.
The appellant relied on a passage in the judgment of King CJ in R v Turney[1] in support of the contention that, because sexual conduct with NW after he turned 17 was lawful, evidence that the appellant engaged in that conduct lacked any probative force. The passage relied on does not support the appellant’s contention. The proposition put by King CJ in that passage is that the common law exclusionary rule is limited to criminal offending, and that evidence of discreditable conduct which is not criminal can only be excluded by an exercise of the general unfairness discretion. The remarks in Turney do not deny evidence of a particular disposition probative force merely because it is lawful. The reference to the availability of the general unfairness discretion to exclude evidence of a lawful disposition assumes that it may be probative. The point of the observations in Turney is the converse of the appellant’s contention: it is that evidence of a lawful disposition is more readily admissible than evidence of a criminal disposition.
[1] (1999) 52 SASR 438, 441.
The evidence of the ongoing relationship with NW is also probative because it shows why NW did not complain earlier than he did. That use of the evidence does not rely on propensity reasoning. It has strong probative value which substantially outweighs the prejudicial effect because it addresses what would otherwise appear to be a serious improbability in NW’s evidence.
I turn next to the evidence of uncharged conduct relating to WP. The evidence of the provision of cannabis was relevant for the same reason that evidence of the same kind was admissible on count 1. The evidence of uncharged sexual offending and of other sexual interaction with WP was admissible to show the appellant’s sexual attraction to WP. The evidence of sexual attraction was, in turn, circumstantially supportive of WP’s direct testimony of the commission of the charged offences because it shows motive and reveals the entirety of the sexual relationship. The evidence of the ongoing relationship was also capable of explaining WP’s failure to make an earlier complaint. In all of these respects, the evidence had strong probative value and substantially outweighed its prejudicial effect in a way which can readily be distinguished from reasoning from a mere general propensity to commit crimes of the kind charged.
I now turn to consider the cross-admissibility of the discreditable conduct evidence. The first of two pillars on which cross-admissibility rests in this case is the evidence of the offence of indecent assault against WP charged in count 3 – the Deep Creek camping incident. The direct testimony of NW of that incident was clearly both admissible, and strong, corroborative evidence of the testimony of WP. The evidence of the offence against NW charged by count 1 was relevant to show why the appellant might be so bold as to engage in sexual conduct of the kind engaged in at Deep Creek with two young men. That same reasoning applies with respect to the evidence of other occasions on which the appellant engaged in sexual activity with NW before the Deep Creek camping trip, whether that sexual conduct was criminal or not.
The evidence of the earlier offending against WP is admissible on the trial of the first count charging the offence against NW for similar reasons. The evidence of the appellant’s sexual conduct with NW on the Deep Creek camping trip is, as I observed above, relevant to count 1 in that it shows a sexual attraction to NW. WP’s direct testimony of the events at Deep Creek is therefore relevant and admissible as part of the evidence proving that sexual attraction. The evidence of the appellant’s offending against WP preceding the Deep Creek incident is admissible to show why the appellant was bold enough to engage in that sexual conduct in the presence of both young men. The probative force of the evidence of prior sexual activity between the appellant and each of the complainants in explaining how the Deep Creek incident came about needs little elaboration. Without that evidence, the jury might think it improbable that a person in the appellant’s position would risk engaging in that sexual activity with both young men. The evidence has strong probative value which outweighs its prejudicial effect and was therefore admissible pursuant to s 34P(2) of the Evidence Act 1929 (SA) (Evidence Act).
The second pillar of cross-admissibility to which I referred is built on the similarities in the complainants’ accounts. Similarities in the testimonial descriptions of events or conduct given by different witnesses can, speaking generally and leaving aside the issue of collusion, strengthen the weight of their evidence. The degree to which the evidence of one witness is enhanced by the similar testimony of another witness will depend on the degree of detail, and the peculiarity of the conduct described. The more detailed and peculiar the conduct, the less likely it is that the witnesses concocted the evidence independently of each other, because so great is the range of human behaviours that it is improbable that two persons could independently concoct or imagine the same details and peculiarities. I will refer to evidence used for this purpose as similarity in account evidence.
The common law accepted that detailed descriptions of peculiar criminal or other discreditable conduct given by different witnesses carried sufficient probative weight to be admissible, notwithstanding the prejudicial effect of their testimonies. The common law conditioned the admissibility of similarity of account evidence on the trial Judge’s satisfaction that the complainants had not colluded to concoct the evidence.[2] The rationale for the rule is plain enough. The probative force of similarity in account evidence is undermined if the similarities are due to collusion. However, s 34S of the Evidence Act has removed that common law condition to the admissibility of similarity in account evidence. The policy reasons for the abrogation of the rule are also plain: it is that questions of concoction are questions of fact for the jury.
[2] Hoch v The Queen (1988) 165 CLR 292.
Moreover, an accused’s suggestion that a complainant’s account may be the product of collusion with other alleged victims can only properly be evaluated if the jury hears the testimony of all of the complainants who may have colluded.[3] The question of admissibility which must now be decided by the Judge under the provisions of Part 3 Division 3 of the Evidence Act is whether, assuming that there has been no collusion, the level of peculiarity and detail in the witnesses’ similar accounts renders the hypothesis that they independently imagined or concocted the conduct so improbable that the probative force of their similar testimonial accounts substantially outweighs their prejudicial effect. The use of similarity in account evidence in that way does not involve propensity reasoning even though, if the degree of similarity leads to a conclusion that the events described were not imagined but did in fact occur, a propensity of the defendant will have been revealed.
[3] R v M, BJ (2001) 110 SASR 1, [39]-[40] (Vanstone J).
In this case there can be no doubt about the sufficiency of the detail and the peculiarity of the descriptions given by NW and WP, which are summarised in [33] above, to achieve the degree of probative force which substantially outweighs the prejudicial effect of their evidence. It may be accepted that young men might concoct a story of being supplied with cannabis by a youth worker in the position of the appellant, or even that they might concoct a general allegation of sexual abuse, for any number of reasons. However, it is highly improbable that WP and NW could have imagined, or independently decided to concoct, the sexual conduct which they testified occurred on the Deep Creek camping trip. It is highly improbable that they could have imagined independently or concocted the “crossing swords” toilet behaviour or the secretive sexual conduct in the spa. It is also improbable that they would have independently imagined or concocted the use of the appellant’s car for offending.
On the assumption that there was no collusion between WP and NW, the combination of the peculiar details of the appellant’s conduct which they described has overwhelming probative force in excluding independent concoction, or imagining, of the conduct alleged by WP and NW. The test imposed by s 34P(a) of the Evidence Act was satisfied and the evidence was therefore cross-admissible. Indeed, even though the similarity in account evidence used does not rely on propensity reasoning, I would describe the evidence as having strong probative value. It follows that the Judge was right to refuse to order a separate trial of count 1 of the Information.
Directions
It is convenient to set out at some length the material passages of the Judge’s summing up on the proper use of the evidence of discreditable conduct. The Judge directed the jury:
[78]... Evidence of the uncharged conduct or incidents is available to you as material which may assist you in concluding that the evidence of a particular complainant is reliable. Alternatively, it may assist the defence in showing inconsistency, or unreliability, or inherent improbability in the evidence of the particular complainant, and thereby raising doubts about the charges laid in respect of that particular complainant.
[79]... I say at the outset that some of the alleged sexual incidents about which NW gave evidence may not have amounted to offences at all because he may have been over 17 at the time he says they occurred but you must still know how you may or may not use the evidence of any alleged sexual activity between him and the accused other than the charged offences.
[80]NW told us that he had a sexual relationship with the accused from 1985, when he was 16, until about 1989 or 1990, when he was 20 or so. That relationship began of course, according to NW, with the conduct the subject of count 1, but in addition to telling us about that incident, the wisdom tooth incident, NW said that before the incident at Deep Creek, which he said was in November 1985, he had had oral sex with the accused at least six times. He also told us about the accused fondling him in the sauna at the gym, about the accused crossing swords when urinating at the same time as the accused, and of course he told us about the accused masturbating him and sucking his penis in the tent at Deep Creek.
[81]If you are satisfied that those uncharged incidents to which I have just referred occurred, and that some of them occurred before the incident at Deep Creek, you may use the evidence of those that happened before the Deep Creek incident to explain the accused’s apparent confidence in dealing sexually with WP at Deep Creek in the way that both WP and NW said he did. The evidence of such uncharged incidents before Deep Creek may be evidence about why the accused thought he could get away with such behaviour against WP in the tent in front of NW. That is, you may use the evidence, if you see fit, as evidence of an established pattern of sexual conduct against NW before the incident at Deep Creek. If you are satisfied that there was such a pattern of sexual conduct between NW and the accused, before Deep Creek, then that pattern may explain why the accused thought he could behave in front of NW at Deep Creek as NW said he did.
[82]You may also use the evidence of any uncharged sexual contact against NW, whether before or after the incident at Deep Creek, when considering if the accused was sexually attracted to NW. If you are satisfied that there was such a sexual attraction, that may help you in considering whether or not the accused is in fact guilty of count 1. Of course, you must bear in mind, when considering count 1, and any uncharged sexual conduct with NW, that NW said that the sexual conduct, the subject of count 1, was the very first occasion of sexual conduct between him and the accused.
[83]WP also gave evidence of sexual activity between him and the accused on occasions other than those charged. In WP’s case, all of the sexual activity between him and the accused occurred before he was 17. He, too, gave evidence of “crossing swords”, of the accused shaking his penis after urinating, of the accused grabbing his penis in the shower, of the accused sucking his penis at Deep Creek, and of his sucking the accused’s penis in the spare room at the accused’s house, and of the accused fondling of his genitals at the gym. If you are satisfied that those uncharged acts occurred against WP, then again, you may use them as evidence that the accused was sexually attracted to WP. You may also use them, if you see fit, as evidence of an established pattern of sexual conduct against WP, and such a pattern of sexual conduct may explain the accused’s conduct towards WP both when alone with WP, and with NW at Deep Creek in the way that he said he dealt with WP there, in thinking that he could get away with such behaviour.
[84]Before you could use any of the uncharged acts in the way that I have set out, you must first be satisfied beyond reasonable doubt that the relevant uncharged act occurred. Only if you are so satisfied may you use evidence of an uncharged act and, if you are so satisfied, you may use the evidence of such acts only in the way in which I have directed you. In the same way, you may use the evidence of acts charged in respect of either WP or NW when considering whether the prosecution has proved any of the acts charged in respect of the other of them only in the way in which I have just directed you in the case of the uncharged acts. Again, you may also use the evidence of the charged acts in the way that I have directed you if you are satisfied beyond reasonable doubt that the relevant charged act or acts occurred.
[85]I repeat in brief my earlier direction: you must consider each count quite separately in the light of the evidence available to you on that count, and that will usually be the evidence of the complainant WP or NW, the subject of the count. You must not reason that simply because you are satisfied of the accused’s guilt on any one count, that he is therefore guilty of any, or some, or all of the other counts. Nor must you reason that because you are satisfied of the accused’s guilt of any charged or uncharged act, that he is therefore the sort of person who would commit other charged or uncharged acts. Such reasoning would be improper and unfair.
The appellant submits that the Judge erred in the direction, given in [84] of the summing up, that the evidence of both the charged and uncharged acts could be used in the ways explained in the preceding paragraphs. That submission should be rejected. The probative value of evidence of conduct, other than conduct alleged in the particular charge under consideration, does not depend on whether the conduct is criminal and, if criminal, on whether it is charged in another count or uncharged. Its probative value depends on whether it circumstantially affects the probability that the accused committed the conduct charged in the particular offence under consideration.
The Judge correctly explained to the jury that the uncharged sexual conduct of the appellant during 1985 of which NW and WP testified was probative:
·in explaining the appellant’s confidence in engaging in sexual conduct with both youths at Deep Creek ([81] and [83] of the summing up); and
·in showing the appellant’s sexual attraction to WP and NW ([82] and [83] of the summing up).
The probative value of the evidence for those purposes is not diminished by the circumstance that the conduct was not charged, and, in the case of NW, may have been lawful.
It will also be observed that, in [85] of the summing up, the Judge warned the jury against:
·presuming guilt on all counts merely because they were satisfied of the appellant’s guilt on one of the counts; and
·reasoning from a general propensity to offend to guilt of the offences charged.

The appellant also contends that the Judge failed to direct the jury on the use of the complainants’ testimony as similarity in account evidence. True it is that the Judge admitted the evidence, in part, because it had that use, and that his Honour did not give the jury any directions on that use. However, the Judge’s decision not to do so is readily explicable. Such was the overwhelming strength of the similarity in account evidence in denying the possibility that the allegations were independently imagined or concocted that it was inconceivable that the complainants had done so. Not surprisingly, no such suggestion was made by the appellant’s counsel.
In failing to explain the similarity in account use of the complainants’ testimony the Judge did not discharge the duty imposed by s 34R(1) of the Evidence Act¸ but no miscarriage of justice could possibly have been caused by his failure to do so. Indeed, the omission was favourable to the appellant. The peculiar details in the testimonial accounts of the complainants could not possibly have been independently concocted. A direction on this use of the evidence is likely to have bemused the jury. If the prosecution failed to exclude collusion as a reasonable possibility, the similarity of accounts proved nothing. That is a matter of common sense which the jury could not have failed to understand. Collusion was the battleground at trial. A direction highlighting the similarities of the complainant’s accounts would have cut across the substantial defence run at trial. At trial, the appellant’s counsel understandably concentrated on the possibility of collusion.
Grounds 1, 2 and 8: directions on onus of proof and lies
The appellant complains that the Judge failed to adequately direct the jury on the onus of proof. In particular, the appellant contends that the Judge should have expressly directed the jury that a mere preference for the complainants’ testimony over the appellant’s was not sufficient to satisfy the criminal standard of proof. The appellant also contends that the Judge failed to adequately direct the jury on the significance of any lies which the jury might find the appellant to have told in his evidence.
The appellant’s submission is that, even though the Judge’s directions on these topics might, on their face, appear to be adequate, the directions failed to address and warn the jury against impermissible lines of reasoning which had been suggested by the prosecutor in his address. It is therefore necessary to set out parts of the prosecutor’s address.
The appellant submitted that the prosecutor suggested impermissible lines of reasoning when, in his opening, he posed as a question for the jury whether WP and NW “could be lying for any reason?”. However, the full passage reads:
Again, you are going to have to decide if they are credible. Could they be lying for any reason? Are they believable? They didn’t go straight to the police; indeed, no complaint was made until years later. There is no medical or DNA evidence that is going to help you in this case to decide it either way, and there is no dispute [the accused] is of good character. By that, I mean he has no previous criminal convictions whatsoever. You are going to have to put all of that in the balance in due course.
Please remember, of course, it is not for [the accused] to prove his innocence. The prosecution must prove its case. Our system doesn’t require anyone accused of a crime to say anything or to do anything, much less to prove their innocence. Above all, you wouldn’t find any accused guilty of any offence unless and until the prosecution puts evidence before you that makes you sure beyond a reasonable doubt of their guilt. Nothing less will do.
(Emphasis added)
In his closing address, the prosecutor made it clear to the jury that, even if they could find no reason for the complainants to have lied, that did not, in itself, prove that the complainants were telling the truth. The prosecutor then submitted:
Having said all of that, can I start by grappling with this suggestion that the prosecution witnesses have lied, because of course this isn’t a case about confusion, is it? Can we all agree, right now, immediately at the outset, someone has been lying to us, and someone has been lying to us on a grand scale. [The accused], at one stage, suggested that [NW] was fantasising about so many bits and pieces. Can we step on that particular suggestion straightaway, that this is some mind [sic] of mental aberration, some kind of mere fantasy, because unless [WP] and [NW] somehow separately fantasised about having sex with [the accused] in that tent at Deep Creek, separately fantasised about crossing swords, separately fantasised about the eyedrops and the Soothers, separately fantasised about the accused rubbing his feet against their genitals in the gym, then in logic, they either cooked up their stories, as my friend put it, or they are telling the truth.
This isn’t a fantasy. Let’s call a spade a spade. There is no grey area here, is there? Either [WP] is a liar, [NW] is a liar, [CB] is a liar, [M] –[Ms MC] is a liar and [KA] is a liar, and each and every one of them has chosen, for reasons the defence have no obligation to explain and which you mustn’t speculate about, to lie to us, or [the accused] has been lying through his teeth. Either there exists an agreement between the prosecution witnesses, a criminal conspiracy in fact, to pervert the course of justice by falsely accusing a wholly innocent man, or [the accused] is a hypocrite and a charlatan.
So is it reasonably possible that the prosecution witnesses have agreed to lie to us?
The prosecutor then submitted that it was improbable that the prosecution witnesses had all colluded to falsely implicate the appellant. The prosecutor acknowledged the alternative possibility that NW and WP had involved Ms MC and CB respectively as unwitting witnesses, framing the appellant, by falsely complaining to them decades before they reported the appellant to police. The prosecutor submitted:[4]
Can I pause to mention here that unless [CB] and [Ms MC] are part of the conspiracy, the only other possible explanation for their evidence would be that [WP] and [NW] began the process of inventing lies about [the accused] over a quarter of a century ago. And they have effectively duped their friends into passing on those original lies all these years later. On that scenario, of course, it would have to follow that [WP] and [NW] have nursed and nourished those lies for all those years in between until now, from the mid ‘80s right until now. Not as the truth, not as secrets which ate them away, not as things which shamed them as they grew and had children of their own, but as malicious and spiteful lies against a man who had only ever shown them kindness, help and concern. How reasonable is that scenario?
[4] T841.
Towards the close of his address, the prosecutor again reminded the jury that the prosecution carried the onus of proof, and that that onus was not discharged by the mere rejection of the defence witnesses:[5]
Of course, you must consider the defence case just as carefully as you consider the prosecution case. Of course remember, as I keep reminding you, the defence don’t have to prove a thing; they don’t have to prove any motive for [NW] or [WP] to have lied. Even if you reject everything the defence witnesses have said, remember you still have to be satisfied the prosecution case has been proved beyond reasonable doubt.
[5] T865.
The passages I have set out show that the prosecutor clearly explained to the jury that the prosecution carried the onus of proving the appellant’s guilt beyond reasonable doubt. True it is that the prosecutor put strong arguments as to why the jury should reject the defence witnesses and accept the testimony of the complainants beyond reasonable doubt. The prosecutor’s arguments were based on the improbability of the hypothesis that the complainants and the complainants’ witnesses conspired together to falsely implicate the appellant, and of the alternative hypothesis, that WP and NW colluded over the fabrication of allegations and set up their false stories by complaining to different witnesses decades before they reported the appellant to the police. The arguments were quite proper. They did not in any way put an impermissible gloss on the onus of proof. It follows that the premise of the appellant’s contention on this ground has not been made good.
Nonetheless, I will consider separately the adequacy of the Judge’s directions on this question. The Judge directed the jury that the appellant was not to be convicted “on insufficient or doubtful evidence”, and that the appellant was to be regarded “as innocent until his guilt is proved to your satisfaction, and the burden of proving the charge lies wholly on the prosecution”. The Judge expressly told the jury that the appellant did not have to prove anything and explained:
He has put forward a defence, but he does not have to prove it. The prosecution must disprove it. Furthermore, nothing short of proof beyond reasonable doubt will do.
After directing the jury on the elements of the offences, the Judge again repeated that the primary question for them was whether the prosecution had proved beyond reasonable doubt that the conduct alleged in relation to each charge occurred at all. The Judge directed the jury that they must consider each of the five counts separately and that they must “decide whether or not the evidence in respect of each of those charges satisfies you beyond reasonable doubt that [the accused] is guilty of that particular count or charge”. The Judge warned the jury that they were not to reason from their satisfaction of guilt on one of the counts that the appellant was guilty of all five. The Judge then added:
[39][if] you are not satisfied of the reliability of [WP] or [NW] with respect to any one count alleged in respect of either of them, then you should consider whether his lack of reliability on that count causes you to feel any doubt about his reliability about any other count. But having said that, ladies and gentlemen, I remind you again that you must consider each of those five counts quite separately.
Importantly the Judge directed the jury:
[114]You will have to consider the possibility of a motive of each of the complaints to lie. A motive to lie is relevant to the credibility of each of them, [WP] and [NW]. However, even if you reject the alleged motive for the complainants, or either of them, to lie, that does not mean that you would find that the relevant complainant has been truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. Crucially, it is not for [the accused] to provide a motive for [WP] or [NW] to lie. You must remember at all times that the prosecution bears the onus of proving its case beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that the complainants, [WP] and [NW], were telling you the truth.
In the face of those directions, the appellant has not shown any real possibility that the jury might have thought that a mere preference for the evidence of the complainants over the testimony of the appellant and his witnesses could satisfy the criminal standard of proof beyond reasonable doubt.
After giving the directions to which I have referred, the Judge quite properly reminded the jury of the prosecutor’s submissions to which I have already referred.
The appellant complains that the Judge failed to give the jury a direction that, even if they were to find that the appellant had told a lie or lies when giving his testimony, they should not reason to his guilt from that finding alone. The appellant complains that the Judge should have given the jury the standard direction to consider alternative explanations to a consciousness of guilt for any lies the appellant might have told.[6]
[6] Zoneff v R (2000) 200 CLR 234; R v Baring and Leonard [2005] SASC 262.
Insofar as the prosecutor made submissions and cross-examined the appellant on the basis that he had falsely denied the offending alleged by the complainants, there was no need to give such a direction. The truth or falsity of the allegations and the appellant’s denials were sides of the same coin, being the ultimate issues in dispute.
However, the appellant relies, in particular, on the controversy in the trial over the appellant’s use of cannabis and the provision of cannabis to the complainants. The appellant denied that he used cannabis at all during 1985. He testified that he used cannabis for the first time after the death of his child in 1990. The use and provision of cannabis was inextricably intertwined with the commission of the offences in the evidence given by the complainants.
There is no requirement as a matter of law that a lies direction be given.[7]
[7] Zoneff v The Queen (2000) 200 CLR 234; Dhanahoa v The Queen (2003) 217 CLR 1.
The question is whether the failure to give a lies direction has resulted in a miscarriage of justice in this case because there is a material risk that the jury reached its verdict by finding that the appellant had falsely denied using cannabis and that he told the lies out of a consciousness of guilt, without considering other explanations for his lie.
Two matters which suggest that the failure was not conducive of a miscarriage of justice should immediately be observed. First, the prosecution never relied on any consciousness of guilt reasoning arising out of the false denial of the use of cannabis. Secondly, the appellant’s counsel did not seek a lies direction.
I observe also that a lies direction may have forensically disadvantaged the appellant. The appellant’s case was that the complainants had concocted all of their evidence, including the evidence of cannabis use. The denial of the use of cannabis by the appellant and his witnesses was an important part of the appellant’s defence. To focus the jury’s attention on the possibility that the appellant and his witnesses may have lied, and the reasons why they might have lied, would have undermined an important element of the defence case. In those circumstances, it is not surprising that the appellant’s counsel did not seek a standard lies direction.
In a case such as this where the only prosecution evidence of the use of cannabis was the complainants’ testimony, it is unlikely that the jury would have dissected their testimony and considered the allegations of the use of cannabis independently of an assessment of the whole of the complainants’ evidence. As I earlier observed, the jury’s attention was not drawn to consciousness of guilt reasoning.
Finally, and importantly, the jury was directed that a rejection of the appellant’s evidence did not of itself discharge the prosecution onus.
In all of the circumstances, I am not persuaded that the failure to give a lies direction has resulted in a miscarriage of justice.
Ground 9 – complaint evidence of CB
I have set out the circumstances which led to the recall of WP in paragraphs [14]-[15] above. WP’s evidence-in-chief when he was recalled was short. It was recorded in just over a page of transcript.
The cross-examination of WP, after his recall, was recorded on over 38 pages of transcript. It was largely directed to the possibility that WP and CB had colluded to concoct their evidence of a complaint by WP. The appellant’s counsel put to WP that he and CB had cooked up the evidence of WP’s early complaint about the appellant’s conduct.
In his cross-examination of CB, the appellant’s counsel obliquely raised the possibility of collusion between CB and WP by exploring the depth of their friendship and the extent of their contact after 1986. The appellant’s counsel did not put an allegation of collusion with WP squarely to CB until after the Judge raised his failure to do so. It was never put to CB that he had imagined or was in some other way mistaken about the making of a complaint by WP.
The probative force of CB’s evidence was significant in that, if the jury rejected the possibility of collusion between CB and WP, then the early complaint to CB significantly reduced the possibility that WP had concocted the allegations of sexual offending in more recent times with NW. Even if WP had not been recalled to give evidence of the complaint to CB, CB’s evidence would have been admissible because there was no evidence of an earlier complaint and, in the circumstances, an inference could be drawn that the complaint to CB was the initial complaint and was admissible pursuant to s 34M of the Evidence Act.[8] There is no ground of appeal that the evidence of CB was inadmissible.
[8] R v S, DD [2010] SASCFC 80, [97] (Peek J).
It is difficult to see how the defence could have responded to the probative force of the evidence of CB, on which the prosecutor had opened, other than by putting that there had been collusion between WP and CB or, alternatively, that WP had falsely complained to CB in 1986 with the intention of falsely accusing the appellant at some later time. The latter hypothesis was not put to WP. Whatever the defence position was going to be on the evidence of CB which had been foreshadowed in the prosecutor’s opening, the appellant’s counsel was bound to put any case which involved an allegation of collusion with CB to WP in cross-examination, whether or not WP gave evidence-in-chief about the complaint to CB. The appellant’s counsel had not done so during his initial cross-examination of WP.
The appellant’s counsel made no application to recall any other prosecution witness after the recall of WP. The witness, Ms JW, was tendered by the prosecution for cross-examination. The appellant’s counsel cross-examined her as to the complaint made to her by WP in 1999.
The appellant has shown no forensic prejudice arising from the recall of WP. Indeed, as I have just observed, it is difficult to see how the appellant’s counsel could have challenged CB’s evidence in any way which would not have, in itself, necessitated the recall of WP. The recall of WP before CB was called allowed the appellant’s counsel an opportunity to remedy his earlier failure to put the defence case of collusion between them. It also allowed the appellant’s counsel to make a point of the inconsistencies between the different accounts of CB and WP on where the complaint was made. Even though the evidence was taken out of its ordinary course, WP’s evidence was still completed before CB came to testify. There is no reason to think that the issue was given any more prominence than it would have assumed through the testimony of CB.
The appellant has failed to show any miscarriage of justice on this ground.
Appeal against sentence
The Judge, who had the benefit of hearing the evidence of the complainants and the appellant, summarised the relationship which the appellant cultivated with the complainants in these terms:
You cultivated your relationships with both boys and you did so in insidious ways: supplying cannabis to them, smoking it with them, and teaching them how to hide the evidence of their cannabis use. You shared dirty jokes with them, invited them to your home where they met your wife, and you and your wife’s friends. In these ways, they were admitted to your adult world and were made to feel privileged, grown up.
Once had [sic] the boys softened up, you seduced them.
The Judge made it clear in his sentencing remarks that he was not sentencing the appellant on the first count of unlawful sexual intercourse with NW against a background of any course of conduct. The Judge expressly said that he ignored any other offending against NW. In that respect the Judge was, with respect, unduly favourable to the appellant. It was an aggravating feature of the single offence against NW that it allowed him to maintain a sexual relationship, albeit a lawful one, with a young man who remained emotionally and psychologically vulnerable because of his earlier offending.

The Judge did sentence the appellant on the offences committed against WP “against a background of sexualised conduct”. The Judge said:
The way you used your position, your education, your personality and your contacts in the world of music or musical show business make your crimes especially insidious. As I have said, you flattered both of the boys in the early stages of your relationships with them by letting them join in your adult pursuits. Later, you flattered them sexually by complimenting them on the size of their penises. Most insidiously, you flattered and, at the same time, subtly threatened them by regularly emphasising to them that, owing to your sexual conduct with them, you were in their power; if they told, they could destroy you.
The Judge described the aggravating circumstance arising from the abuse of trust of the appellant’s position in these terms:
Your offending is extremely serious. It was a gross and sustained breach of the trust imposed in you as a youth worker. It was predatory behaviour. There were two victims. You have shown no remorse for the pain which you have caused for so long. You continue to maintain your innocence.
The Judge mentioned that the appellant had no prior criminal history but observed, correctly, that that circumstance carried little weight in the appellant’s case because he had used his good reputation to engineer opportunities to commit the offences.
The Judge referred to the great number of character references which spoke very highly of the appellant’s commendable work in the community. The Judge accepted that the appellant had “gained widespread support and respect”. The Judge also noted that the appellant had “been responsible for the care of [his] severely handicapped brother”.
In R v D[9] Doyle CJ, after a review of sentencing standards for sexual offences in this State, with the concurrence of the other members of the court, set down a guideline for the sentencing of offences involving unlawful sexual intercourse with children. The Court referred to a starting point of 12 years’ imprisonment for multiple offences against a child under the age of 12 committed over a period of time, before making allowance for a guilty plea and contrition. In the case of children over 12, the Court referred to a starting point of 10 years’ imprisonment. Doyle CJ acknowledged that it was not possible to be precise and that the starting points suggested by him were not meant to be rigid prescriptions. Doyle CJ also recognised that in an appropriate case the starting point might be higher or lower.
[9] (1997) 69 SASR 413, 424.
After the decision of this Court in R v D,[10] Parliament amended the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) by inserting s 29D which provides:
[10] (1997) 69 SASR 413.
29D—Sentencing standards for offences involving paedophilia
(1)     The Parliament declares that—
(a)     the 1997 amendment of sentencing standards reflected an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia; and
(b)     the reformed standards should be applied to offences involving paedophilia committed before or after the enunciation of the 1997 amendment of sentencing standards (or committed in part before, and in part after, the enunciation of the 1997 amendment of sentencing standards).
(2)In this section—
1997 amendment of sentencing standards means the change to sentencing standards enunciated in R v D (1997) 69 SASR 413;
offences involving paedophilia means all offences to which the 1997 amendment of sentencing standards is applicable (whether individual sentences for the offences have been, or are to be, imposed or a global sentence covering a series of offences¹ or a course of conduct involving a number of criminal incidents²).
reformed standards means sentencing standards as changed by the 1997 amendment of sentencing standards.
Notes—
1 See section 18A of the Criminal Law (Sentencing) Act 1988.
2 See section 74 of the Criminal Law Consolidation Act 1935.
The primary purpose of the enactment of s 29D of the Sentencing Act was to legislatively abrogate the common law practice of courts forewarning the public of an increase in sentencing standards. That practice may have delayed the imposition of the standard enunciated in R v D and may have limited it to offences committed after that decision was handed down. However, the enactment of s 29D of the Sentencing Act also recognised the seriousness with which the community regards offences of that kind.
It is not open to sentencing judges, nor to the Full Court, to adopt another standard unless and until the clear statement of principle in R v D is overruled or amended by a Full Court of five. Nonetheless, the sentencing standard retains the flexibility to which Doyle CJ referred. The discretion which the flexibility allows must be exercised judicially by reference to the standard, and not in a way which undermines it. The selection of a different starting point should be supported by reference to circumstances which distinguish the case at bar from the generality of cases to which Doyle CJ referred.
The sentence imposed on the appellant adopts the starting point suggested by Doyle CJ for offences involving a victim over the age of 12. In this case, NW and WP were significantly older than 12; indeed, NW was close to the age at which the conduct would have been lawful. Speaking generally, for a victim of the age of 15 or 16 a lower starting point might sometimes be selected. However, the appellant fell to be sentenced for his offences against two complainants. Even though he was to be sentenced for only one offence against NW, that offence was, as I earlier observed, aggravated by the fact that it allowed the appellant to maintain a damaging sexual relationship with NW into NW’s early adult life.
Speaking generally, the appellant’s substantial contribution to the community and the exceptional regard in which he was held by many people, who were in a position to judge his character at close quarters, also suggested a lower sentence. On the other hand, the appellant used his position in a callous and calculated way to seduce both young men who were susceptible to his advances precisely because of the position he held. For that, the appellant bears an additional moral culpability for his conduct. The circumstance that his offending was committed from a position of community trust also calls for a strongly deterrent sentence. It is of great public importance that children are protected from the insidious advances of the very persons the community charges with the responsibility of protecting them.
For the above reasons, the appellant’s sentence, when measured against the standard set in R v D, was not manifestly excessive.
The appellant also appeals against the sentence on miscellaneous other grounds.
First, it is contended that the Judge’s description of the offence as “extremely serious” was erroneous. Descriptions such as those given by the Judge are broad assessments of an offender’s culpability. As a broad assessment, there is no error in the Judge’s description.
Next, the appellant complains that the sentence should have been mitigated by reason of the long passage of time between the offending and the appellant’s convictions. In some cases, delays in prosecuting an offender to conviction might render his offending “stale” and call for a more mitigated sentence. However, that is not the case for offences of the kind committed by the appellant. Child victims of sexual offending are often left with feelings of confusion and shame which endure into their adulthood. NW and WP described those very emotions. It is a notorious feature of offences of this kind that the victims find it difficult to make their complaints public. Indeed, the appellant, like many offenders of his kind, went to some lengths at the time of the offending, and years later, to dissuade WP and NW from complaining by burdening them with the harm that a complaint might do to his reputation and his marriage. To a large extent, it is because the appellant succeeded in that endeavour that he was able to remain free in the community long enough to gain the reputation described in the testimonials. However, in those same decades, NW and WP carried the heavy burden of his crimes. In his Victim Impact Statement NW spoke of the decades of shame and guilt he had felt whilst struggling with “challenging and undesirable emotions”. WP spoke of subverting his “confusion and shame” so that he could obtain the adult approval he craved from the appellant and his circle of friends. WP explained that he had “wrestled” with the appellant’s “perversion” of his “sexual identity”.
The appellant also complains that the Judge gave insufficient weight to the additional difficulties the appellant would face in prison because he was suffering a major depressive disorder and was suicidal as a result. The appellant’s depression is almost entirely the result of his apprehension for these offences and, having regard to his lack of contrition, his self pity. Therefore, little weight can be given to this consideration. Nonetheless, I accept that the appellant will suffer some additional hardship in prison because of his depression. However, there is no reason to think that his condition cannot be ameliorated, at least to some extent, by treatment even whilst in prison. Nor is there any evidence to suggest that safeguards cannot be taken against the risk of suicide.
Finally, the appellant complains that the Judge had insufficient regard to the hardship imprisonment would cause to the appellant’s wife and disabled brother. In 1990, the appellant’s eldest son died as a result of an accident when he was still a child. The appellant’s wife required psychiatric care following her son’s death, and continues to receive that care. However, the only reference to her condition appears in a psychiatric report on the appellant. That report records no more than the facts I have just recited. No independent psychiatric assessment of the appellant’s wife was provided to the Judge. No other evidence about the extent of the hardship that the appellant’s wife would suffer was adduced. With respect to the appellant’s brother, who is both intellectually and physically handicapped, the appellant, as his formal guardian, carries a significant responsibility for his care. That is so despite his brother’s institutionalisation. Again, no further evidence regarding the degree of the hardship that the appellant’s brother would suffer was advanced. Accordingly, there was no evidential basis to support mitigation of the sentence on this ground.
For the above reasons, I would dismiss the application for permission to appeal against sentence.
Conclusion
In summary, I would dismiss the appeal against conviction and refuse the application for permission to appeal against sentence.
BLUE J: I agree.
STANLEY J: I would dismiss the appeal against conviction and I would refuse permission to appeal against sentence. I agree with the reasons of the Chief Justice.