R v Quinn

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v. QUINN [2000] NSWCCA 446

FILE NUMBER(S):
No. 60270 of 1998

HEARING DATE(S): Friday 8 September 2000

JUDGMENT DATE: 27/10/2000

PARTIES:
REGINA v.
QUINN, Peter Andrew

JUDGMENT OF: Fitzgerald JA Newman J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 96/21/1041

LOWER COURT JUDICIAL OFFICER: Cantrill, ADCJ.

COUNSEL:
Crown: W.G. Dawe QC.
App: In person (conviction)
App: J.S. Andrews (sentence)

SOLICITORS:
Crown: S.E. O'Connor
App: In person (conviction)
App: Maureen Fanning & Associates (sentence)

CATCHWORDS:
Criminal law - sexual assault - appeal against conviction - unrepresented appellant - identification - sufficiency of evidence - absence of identification parade, sufficient reason therefor - fresh evidence - lack of cogency - adequacy of legal representation - no basis for complaint - complaint of bias - no substance - sufficient evidence to support conviction - leave to appeal against sentence - sentence manifestly excessive.

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal against conviction dismissed; leave to appeal against sentence granted and the appeal against sentence upheld; sentence quashed and in lieu thereof the offender be sentenced to a term of imprisonment for nine years commencing 14 May 1998 and expiring 13 May 2007 with a non-parole period of seven years which will expire on 13 May 2005. The earliest date on which the offender will be eligible for release will be 13 May 2005.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60270 of 1998
CORAM: FITZGERALD, JA.
NEWMAN, J.
GREG JAMES, J.

FRIDAY 27 OCTOBER 2000

REGINA v. PETER ANDREW QUINN

JUDGMENT

FITZGERALD, JA: I agree with Greg James, J.
NEWMAN, J: I have had the advantage of reading in draft form, the reasons and orders of Greg James, J. I agree with his Honour's reasons and the orders he proposes.
GREG JAMES, J: Peter Andrew Quinn appeals against his conviction and seeks leave to appeal in respect of the sentence imposed upon him on a charge of sexual intercourse without consent in circumstances of aggravation. He was tried in the District Court at Penrith before Acting Judge Cantrill.
His Honour sentenced the appellant to a minimum term of nine years penal servitude to commence on 14 May 1998 and an additional term of two years. The appellant had been admitted to bail prior to conviction.
The appellant was represented at the trial but before us appeared for himself on the appeal although counsel appeared for him on his application for leave to appeal.
In summary, the case alleged against the appellant was that he had followed a 15 year old girl into a ladies' toilet on the train platform at Lithgow, threatened her and digitally penetrated her vagina. She had fled the toilet and by her actions identified him as he left the scene to passengers and railway personnel. He had denied the offence to police and asserted a mistaken identification.
The appeal had been listed some time ago but was stood out of the list since a question arose as to the factual foundation of a submission put on appeal that the conviction should be overturned on a fresh evidence basis. It is contended that the complainant had, subsequent to the trial, written to the appellant a letter which it was claimed should be admitted as fresh evidence and would cast an adverse light upon her assertions against him at trial. The appellant contends the letter and telephone calls he asserts she made to him at the gaol show the complainant lied at trial, wrongly accusing him and did so, probably to get victim's compensation.
The proceedings were stood out of the list to permit an investigation of those matters and to enable affidavits to be prepared concerning the material it was sought to provide in support of the appeal. That material has now been put before us, without objection, to consider its admissibility and, if admissible, its effect on the appeal in accordance with the principles which are set out by the High Court in The Queen v. Mickelberg (1989) 167 CLR 259.
That material not only included the letter to which I have referred, which is conveniently to be found copied as annexure A to the affidavit of Detective Senior Constable Brian Fitzpatrick, but the appellant's oral and written assertions of the telephone calls. The Crown has filed material including an affidavit of the complainant in which she denied writing the letter and provided samples of handwriting.
The handwriting evidence provided on affidavit by Mr. Mesker of the Police Document Examination Section is to the effect that, in the deponent's view, the complainant had not written the letter in question. No identifiable finger or palm prints were found on the document such as would have assisted.
Before us in argument, the appellant drew our attention to his assertion in argument of his provision of the letter in question and its accompanying envelope to officers of the Legal Aid Commission where the envelope which might have, he asserted, on testing established authorship, unfortunately went missing. The circumstances of the envelope having gone missing are referred to in the affidavit of Miss Maureen Fanning of the Legal Aid Commission. In all the circumstances, the court was content to entertain the appellant's assertions orally from the bar table for the purpose of evaluating them.
In addition to those matters, in oral argument before us, in his written submissions and in further written submissions provided by him shortly after the hearing, which I consider we should read for that purpose, the appellant has made a number of complaints. Those include a complaint of the inadequacy of his representation, in particular, that his counsel was distracted by the birth of the counsel's child during the trial (see Regina v. Birks (1990) 19 NSWLR 677 and Regina v. Ignjatic (1993) 68 A. Crim. R. 333).
He has made a number of factual assertions of matters he says his counsel should have put or explored, including that there should have been an identification parade and that his physical particulars and clothing differed greatly from the description given by the witnesses. He asserted that the appellant had had a conversation after his arrest with a police officer in which he had deliberately ascribed to himself inaccurate particulars of his height and distinctive marks and clothing which inaccurate description was, he says, given by the identifying witnesses to the police. He submits that it was open for it to be accepted that the police officer had taken that description and provided it to the witnesses who had adopted it. This, he says, exposes the falsity of the witness' evidence and that the identification was erroneous.
His Honour embarked on an enquiry into whether identification evidence should have been allowed in the absence of a parade and gave a judgment allowing the evidence. The assertion of the giving of the inaccurate description was not raised on that enquiry or at trial and it is not sought to explain that it was not raised at trial by any reference to counsel having been informed of it at the time of trial. I see no error in the trial judge's decision having regard to the identification evidence I will later set out.
In addition, the appellant seeks to draw our attention to asserted conversations with his counsel advising him not to raise matters; conversations with police officers and magistrates during the pre-trial committal process; an occasion on which he says police officers brought two ladies to the holding cell and both declared him not to be the person in respect of whom they were examining him; advice from a police officer to tell his solicitor to get hold of railway security cameras, the tape from which it was asserted would "clear you". He has further asserted that the absence of evidence from an Asian woman he contends he spoke to and the absence of evidence from a female train passenger, although the content of that evidence is not clear, would have cleared him also. None of the material that might have supported these assertions was put before us in a way that would have enabled it to be properly considered. No original statement was provided to us and there was no sworn evidence of these matters except of the letter and there seems no basis to accept that as genuine.
For my part, I do not consider that any of this meets the relevant tests posed by the High Court in Mickelberg (supra). I do not regard it as cogent nor do I regard there as being any real or sufficient explanation of why such factual material as is suggested to have been involved in it was not available for use at the trial. The identification issue was plainly raised and agitated at the trial.
Nonetheless, having regard to the fact that the appellant was unrepresented and was raising matters which might have revealed an important ground of appeal, I agreed in the decision made at trial that regard should be had to that material in order to seek to ascertain whether it might support any other ground or alternatively supply relevant context to the other grounds the appellant sought to argue or, whether there might have been, for any reason, a procedural or substantive miscarriage of justice. In particular, I have considered it on the issue whether the conviction should not be allowed to stand as not supported by the evidence or whether otherwise there might be some evidentiary defect in the identification process: see s.6(1) Criminal Appeal Act 1912; Regina v. Fleming (1998) 158 ALR 379; Regina v. Gipp (1998) 194 CLR 106.
As best I can analyse his oral and written submissions, the appellant asserted as the grounds of his appeal against conviction:-
1.That his counsel had failed to adduce evidence from a female train passenger that she had seen him in the police station and had made a positive rejection of him as the perpetrator.
2.That the judge was biased.
3.That the descriptions given by the complainant and other witnesses were entirely inconsistent with a correct identification of him in their detail, both as to his physical attributes and his clothing.
4.That the police investigation was entirely inadequate as failing to provide a line up and failing to fingerprint the bag of white powder thrown away by him and the women's toilet on the railway station.
5.That his counsel failed to bring out or mention adequately or call one of two young girls to whom he had spoken who was Asian.
6.That his counsel was forensically inadequate by comparison with the Crown Prosecutor.
7.That the complainant's distress in court and the assistance furnished to her by a support person was such as to cause the trial to miscarry.
8.That the identification of him by the complainant had been tainted by her being allowed to see a video monitor in the police station showing him in custody in the cells and apparently engaged in some sexual act.
The evidence can be summarised shortly. It was the complainant's evidence that on 23 December 1995, she, aged 15 years, was waiting at the Lithgow railway station for her boyfriend to arrive by train. She had gone to the station in company with a girl named Milly who had left her at the station after the complainant had purchased chips and a drink. She went to the ladies' toilets at the station carrying the coke bottle. A man followed her into the toilets and into the cubicle and locked the door. He offered her "goey" (apparently a reference to drugs of some sort) and "smoko". She refused. He said, "show us your tits". She told him to "piss off". He then grabbed her, "on the tit". She said, "what do you think you're fuckin' doing?", and pushed his hands away. He said, "you do that and I'll fuckin' hit you". She said, "don't do this, don't do this to me, it's happened before". He laughed and said, "you scream and I'll you, you scream and I'll hit you". He then said, "show us your cunt", and started to pull down her tracksuit pants and underwear and put his finger inside her vagina.
She heard a train come and she said, "you want to let me go, you want to let me out now, here comes people, here comes people" and an old lady walked into a cubicle. The complainant reached over the top and said, "help me, help me". She said, "she wouldn't help me". She said, "the old lady turned around and walked out" and she heard the appellant undo his zipper saying "here you want to see this, I've got something to show you". The complainant, when the old lady would not help her, pulled herself over the top of the cubicle and shouted to her and then walked out of the toilet and yelled out "somebody tried to rape me, somebody tried to rape me". A lady from the railway station came walking down and she said that the appellant came walking out of the other side of the cubicle and she threw her coke bottle at him but missed him, nearly hitting the lady, and she went with the train lady, "he just kept walking, walking, walking".
She complained to the train lady who was wearing a uniform that "somebody tried to rape me, that bloke, that bloke" and pointed to the appellant who was "walking out, was walking out around".
She confirmed in evidence that the person she had pointed to on the railway station was the same person that was in the toilet cubicle with her. She was taken up the stairs from the railway station by other women who were then present and saw the man walking up the stairs. He sat up at the top of the stairs at a bus stop. When she walked out, she saw him down near a police wagon and yelled out and abused him. This was a short time later. At that point the man was down from the bus stop getting into the police wagon.
At trial she gave a description of what the man was wearing comprising shabby blue jeans and a flannelette shirt. She gave evidence that at the police station she had made a statement and that when she was walking out of the police station, after she had made the statement and after she had been to the hospital, she had seen the appellant in the cells on what appears to be a security monitor screen.
She was unable to recall at trial any other of the clothing the man was wearing. She was permitted to make an in-court identification of the accused without objection (no doubt as a consequence of his Honour's ruling on the voir dire to which I have already referred) and confirmed that she had not known him before that occasion.
In cross-examination her evidence was tested as to the lighting in the toilet. She recalled that the flannelette shirt was blue, that he had an earing and a "crater" on his face. It was put to her that she was totally mistaken as to the person who did this. She denied it. It was suggested that the man who had raped her had mingled with the train passengers and that she had made a mistaken identification. But again, she said she saw him walk out of the toilets and up the stairs. She adamantly resisted the suggestion of mistake.
She agreed that she had screamed on the platform to the police, "where is that cunt, where is that cunt, I'm going to kill him", and said that that was immediately prior to her throwing the bottle at him.
The cross-examiner challenged identification but did not put to the witness any prior inconsistent description. In re-examination she referred to the word "crater" as referring to pock marks or pimples.
Other evidence included that of Mr. Bruce King, a railway passenger, who saw two girls, one blonde and one Asian, and that the blonde one went into the railway tunnel. He saw a relatively tall, scruffy looking male person wearing a hat, a denim jacket and blue denim jeans who bumped into him and appeared to follow the blonde girl who walked into the rest room or toilet. He went back out into the arcade from the platform and sat. He then walked down onto the platform where a train had pulled in, sitting on the platform. He then heard a girl screaming. He heard her say, "fucking cunt, fucking cunt, I'll kill him, I'll kill him". He identified the person screaming as the blonde girl who had apparently just come out of the toilet "back towards me". He identified that blonde girl as the complainant.
He saw the scruffy looking man come out of the other side of the building, coming from around the other side, not out of the same door that they went in. The complainant told him to go after that man. She indicated the scruffy bloke to him. He followed that man up the stairs until he sat on a bus stop. Mr. King noticed that man take off his jacket and a green MASH hat, of a floppy cotton type. The man walked away from the bus stop seat and was pursued by State Rail personnel including a uniformed woman State Rail officer.
He confirmed that the man he had seen follow the girl into the ladies' toilet was the same man that had walked up the stairs later, sat on the bus seat and crossed the road.
In cross-examination, he confirmed that man had been wearing the hat until the time at which he saw him sitting on the bus seat, that the man had appeared to him to be about six foot in height. His evidence did not suggest that he had seen the complainant throw the bottle. He confirmed that the complainant had come out of the toilet shortly after an older woman had walked in.
He also confirmed that the complainant had indicated the scruffy man, that is, the man to whom he had been referring.
Suzanne Sharp gave evidence that she had been working at the Lithgow railway station that day as the station assistant. She described the geography of the station and the platform and, in particular, the location and access to the women's toilet. She said that she was about half way down the platform, about 10 or 12 feet or so from the men's toilet, when she noticed a young girl come out of the ladies' waiting room, screaming hysterically and waving her arms about. She now knows that that girl was the complainant.
The girl said, "stop him, stop him, he tried to rape me in the toilets" and she pointed to the appellant who was heading up the stairs, walking at a normal pace or just a little bit quicker. She apparently threw a coke bottle at him and it smashed against the wall. She was still screaming, "stop him, stop him, he tried to rape me in the toilet". At that point, the man would have been about 10 feet or so away from her, only a couple of feet from the men's toilets.
Miss Sharp sat the girl down on a seat under the awning and arranged for a couple of ladies, who had been passengers on the train which had arrived, to comfort her and then started to follow the appellant. As she passed the station master's office, she asked the acting station master to contact the police, then followed the man out to the bus interchange, seeing him seated on a seat some two seats from the end of the walkway.
She returned to the platform to attend to the welfare of the complainant and then returned again to the vicinity of the bus seats where the man was still sitting on the seats. She described him as wearing a green t-shirt, jeans and a cap, she thought a baseball cap but she was not sure.
The man spoke to certain of the station attendants, got up off the seat and started to walk across the road and down a laneway. Miss Sharp followed him. The man she followed, whilst she was following him in company with the train driver, threw a small white object away. She and the train driver kept following him until she saw the police car at which point she left the train driver to keep on following him whilst she went to get the police. The police then drove up and apprehended him. He had, by this time, started running.
The man the police apprehended, she said, was the same man that the girl had thrown the coke bottle at. The police put him in the back of a police vehicle. She saw the girl come running down the road, screaming hysterically, so she stopped her just before she got to where the police and the police vehicle and the appellant had been.

Later she accompanied Sergeant Madgwick to where she had seen the man throw the white object away and a small sachet bag. A little sealable white envelope made of plastic was located. It was a transparent plastic bag with white powder in it. She identified a photograph of it. She gave evidence of the construction of the toilet cubicles and how the dividers did not extend to the ceiling.
In cross-examination, she revealed some considerable doubt as to the precision of her description of the man's clothing, but rejected the suggestion she might be mistaken in identifying the man as the accused. She accepted that the man might have been wearing a jacket at some point of time. She denied the suggestion that the man she had been following did not throw away the white object. She confirmed that the man that was in the police car taken from the scene was the accused.
The train driver, Donald Charles Spice, gave an account to similar effect of seeing the man on the bus seat and following him thereafter. He contended that he had never lost sight of him. He too noticed that the man was "a little bit poxy", by which he apparently meant that the man suffered from acne.
Sergeant Madgwick gave evidence of having had a conversation with the complainant, with Miss Sharp and then seeing a man followed by the train driver, Don Spice. He gave evidence that the man was the accused and that when he arrested the accused, the accused said, "I don't know what you're talking about".
When he was in the police vehicle, he saw the young girl running from the railway station towards the police vehicle in which the accused was and she was yelling and appeared to be upset. He gave evidence confirmatory of Miss Sharp's account of the finding of the plastic bag containing white powder. He gave evidence that on arrest the accused was wearing a t-shirt, jeans and had a jacket with him.
Detective Cottee gave evidence of speaking to the accused, who asserted that he knew nothing about the allegation, but was unwilling to participate in a record of interview. In that interview, the appellant, as to each allegation put, said that he did not know anything about that but agreed he had been at the platform on the railway station earlier on when he had gone to the toilet. He agreed that at the time he was wearing a green t-shirt, faded blue jeans and had a jacket which was blue denim. He denied any knowledge of the plastic bag of white powder or that he had seen anybody throw a bottle of coke. He had never seen anybody following him anywhere, he said. He denied that he had thrown the plastic resealable bag away and gave an account of his movements, describing himself as having gone to a friend's place, a friend whom he hadn't seen, "for 15 years or maybe even longer than that, about 20 years probably".
Although the description given by the complainant originally to police had not been put to her as inconsistent, her statement to the police, in the evidence of this detective, was marked for identification and evidence was led that it contained the description of the person she said had assaulted her.
After objection was taken by the defence to that description being given in evidence, there was some discussion in the absence of the jury and a description was tendered in evidence before the jury thereafter. That description was as follows:-
"I would describe the man that followed me into the toilets and attacked me as being about 40 years old, a bit shorter than six feet tall, medium build, brown hair with grey in it. He had like pock marks on his face. He was wearing a hat, he had on blue jeans, I would recognise the man if I saw him again."
That description was entirely inconsistent with that the appellant asserted in argument before us the complainant had given, but it was not challenged at trial.
Detective Cottee asserted that he had not had the small plastic bag tested for fingerprints as, in his experience, fingerprints were rarely recovered on items of that nature. He had not taken any fingerprint evidence around the toilet and said that might have been perhaps an oversight on his part. He agreed that the accused, having denied being the person involved, wished to participate in an identification parade and that he had offered the accused the opportunity of taking part in an identification parade, but that he was unable to find enough people in the area with a moustache to conduct an impartial identification parade at that time. In addition, there was a problem of the situation arising late on a Saturday night.
I interpolate that his evidence in this regard appears to have been accepted by the trial judge on the voir dire when he gave his decision on the application to exclude identification evidence, to which I have earlier referred.
Detective Cottee agreed that he had been unable to find a hat the accused might have been wearing, and had not questioned him in the interview about whether or not he had a hat. Thereafter the Crown case closed.
The appellant gave evidence that he had come from Bathurst to Lithgow to visit his mother in hospital and that after having stayed a couple of hours with her, went to hotels to have a couple of beers and something to eat. He then went to the railway station to buy a ticket to go back to Bathurst but the bus was all sold out. He hung around in the hope that someone who had booked a seat would not turn up so that he might buy a ticket, went to the toilet, went back upstairs, had a cigarette, sat on a seat and waited for a while. When it was apparent that all booked passengers had arrived, he went looking for a friend to get a lift home. This was a friend that he had not spoken to for some 15 or 20 years.
While he was looking for the friend's home, "some bloke come up to me and said to me, 'you'll have to come with me' or something like that". The accused "probably did tell him to piss off because I didn't know who he was". He did not remember what had been said to him by Mr. Spice, the train driver or of anybody actually following him. He was pulled up by the police, put in a police car and taken to the station. At no time was he running, he was merely walking, he said.
He did not take any issue with the police account of the conversations with him. He denied sexually assaulting the complainant in any way or having ever had a coke bottle thrown at him. He denied wearing a hat and specifically a green MASH type hat or cap. He denied wearing, on that day, a blue flannelette checked shirt. He said, "I never threw no plastic bag away". He admitting having had a jacket, "a sort of denim jacket, a light coloured denim jacket, white to light blue", he thought it was, by memory but said he had not worn it that day.
In cross-examination he confirmed that the jeans he was wearing had a zipper, that his facial skin was pock marked with some acne on his face and that there had been no need for him, if using the gents' toilet, to walk past where the gents' toilet was situated away from the stairs on the platform so that he might be observed walking from a position further away from the stairs than the gents' toilets towards the stairs.
He denied bumping into Mr. King, seeing a blonde girl and asserted that he went into the gents' toilet, thereafter going up and sitting on a seat near the bus interchange. He denied running or walking briskly when being followed by Mr. Spicer and confirmed the last time he had spoken to Mr. Northey, his Lithgow friend, was when he was at school or shortly after. He said, however, on a couple of hundred occasions people had sent messages to him to the effect that "Darryl said to say hello". He said he had seen Darryl in Bathurst a few days before in a car and thought that Darryl might have been able to drive him home to Bathurst from Lithgow. He denied hearing a girl screaming or a bottle breaking that day and did not see a young girl acting hysterically. He certainly did not hear a girl screaming out words to the effect of "stop him, stop him, don't let him get away". He did not hear anyone scream out words like "he tried to rape me". He didn't see anyone acting strangely while he was on the platform. On his account, the breaking of the coke bottle and the complainant's screaming could not have occurred whilst he was on the platform.
There was no application to recall the complainant to cross-examine her concerning the description which had been given in evidence.
Whatever was the appropriateness at trial of that description being given in that way, on this appeal, the appellant seems to have contended that the original description should have been before the jury so that they might compare it with the account given by the complainant and the identification in evidence.
The summing up was detailed and extensive. In particular, his Honour gave clear and precise directions that it was essential for the jury to be satisfied beyond reasonable doubt of the evidence and identification of the accused by the complainant and that therefore, the jury should examine and scrutinise her evidence with great care. He gave directions concerning the prospect of her evidence being unreliable, the danger of convicting on her evidence unless it was corroborated and gave impeccable directions as to the dangers of identification and the onus and standard of proof. No complaint can or has been made concerning those directions.
I turn then to consider the grounds of appeal to which I have referred.
Ground 1
Insofar as this ground refers to the woman who entered the toilet block at about the time of the assault, there was no evidence at the trial to indicate a sufficient basis upon which she could have been located by either the Crown or the defence. There was no evidence at the trial, nor is there any evidence in form such as it might be permissible for us to act on before us, to suggest she had come to the police station and rejected the appellant as the perpetrator.
Ground 2
There is no possible basis for any contention that the judge exhibited any such conduct as was in any way unfavourable to the proper determination of the appellant's trial. No reasonable observer could have apprehended in any way that his Honour was less than entirely impartial and indeed tender towards the fairness of the trial as far as the appellant was concerned.
There is no substance in this ground.
Ground 3
There was no evidence at trial of any other description of the appellant than that which I have related. That description, whilst it was not entirely consistent with the account given by the appellant, was a description that the jury could test by observing the appellant himself during the trial, and by his own admissions as to his own clothing, height, build, pock marked face, etc.
These were matters to be evaluated by the jury. I do not see that any matter is raised which causes me to any apprehension on this ground. Further, in my view, the verdict was entirely open to the jury on the evidence at it was before them and I would see no basis to disturb it.
Ground 4
Whatever might be said as to whether a more perfect investigation might have been done had the facilities been available at Lithgow at the day in question to provide the line-up, to arrange for fingerprinting of the plastic bag and fingerprinting of the toilet, these deficits in investigation (as far as they were deficits) were brought to the attention of the jury and in the context of the case, no doubt, taken into account by them to evaluate whether they were or were not satisfied on the relevant factual issues.
I see no basis on which this ground can be other than rejected.

Grounds 5 and 6

Upon an analysis of the evidence, it would appear that the young girl to whom the appellant referred was Milly. She was apparently the Asian girl who had accompanied the complainant towards the station. She was not otherwise involved in events. There would seem little reason why the absence of her testimony could assist the accused's case. Indeed, it might have gone some way to contradict his evidence that he had not seen the blonde girl or followed her to the station. I do not see that his counsel, in any way, failed in his duty by not calling her, nor indeed, more generally, do I detect in counsel's conduct of the case, particularly having regard to his objection to the identification evidence and his objection to the description evidence, any such forensic imbalance by comparison with the Crown Prosecutor or forensic inadequacy as would fall within the tests in Birks (supra) and Ignjatic (supra). These grounds, too, fail.
Ground 7
There was simply no basis for the asserted contention that the complainant's distress in court caused the trial to miscarry. It was plain from the transcript that she was distressed. It was plain, also, that her choice of language at times left a great deal to be desired and appeared to indicate a considerable degree of upset on her part. Notwithstanding these matters, his Honour gave clear directions to the jury not to be swayed by sympathy and to consider her evidence with great care.
There is, in my view, nothing in this ground.
Ground 8
It is entirely regrettable that the complainant should have had the opportunity to see the accused on the video monitor as she was leaving the police station. Nonetheless, the acts of identification which were of substance in this matter, were those that long pre-dated that event, that is, the identification on the station platform, the throwing of the coca cola bottle and the identification by running towards the man in custody.
The evidence clearly establishes a continuity of observation of the same person from the times at which the complainant indicated him on the platform and in the vicinity of the toilets to the time of arrest.
I see no risk that any mistake occurred and, in any event, these issues were put before the jury and resolved by them. Specific cross-examination was directed to the question that at some point there had been a mistake such that an innocent man had been identified. It was to that issue that courtroom identification was permitted.
I see no prospect of error. Further, in my view, after reviewing the whole of the evidence, I am satisfied that the verdict was soundly based. I do not consider that any question arises such as to suggest otherwise than that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v. The Queen (1994)181 CLR 487; Jones v. The Queen (1997) 149 ALR 598.
In my view, not only was there a sufficiency of evidence, but, upon a consideration of the transcript and having regard to the favourable position of the jury in assessing the witnesses at trial, I consider that the conviction is not attended with doubt.
I would propose the appeal against conviction be dismissed.
I now turn to the application for leave to appeal against sentence.
The appellant had either just completed or was not far from completing, depending on whether his opinion was accepted or that of the official record, a parole period following sentence for a sexual assault of a very similar nature, for which he had been convicted in 1989.
His Honour, the trial judge, referred to that matter and that so far as the sparse information before him indicated, it involved an attempt to sexually interfere with and indeed an actual interference with, a young girl on a train between Lithgow and Bathurst. He had been sentenced to five years penal servitude on that charge and was serving the unexpired portion of the total sentence at the time this offence occurred.
The offender had, his Honour noted, 31 prior convictions for various types of offences, including offences for which he had been sentenced to penal servitude, one of which involved the office I have referred to of indecent assault on a female.
His Honour expressed the view that there was very little to his credit to which his Honour could have regard in reducing any sentence which might otherwise have been appropriate. His Honour found against the benefit for any remorse being extended to the appellant.
A number of grounds were asserted in the helpful submissions of counsel as to his Honour's sentence. In particular they included that his Honour treated the applicant's plea and conduct of the trial as an aggravating circumstance. In that regard, our attention was drawn to the decision in The Queen v. Siganto (1999) 159 ALR 94.
It was submitted that the stress occasioned to the complainant by having to give evidence was wrongly treated by his Honour as an aggravating circumstance for sentencing purposes. It was submitted that his Honour's remarks that the appellant had shaken his head and altered his appearance to attempt to avoid apprehension while remaining close by so as to put some psychological pressure on the complainant not to press the allegations in a blatant attempt to coerce somebody to not pressing the allegation, were in error and that his Honour had erred in coming to this conclusion as the evidence did not provide an adequate basis for it. Further, it was asserted, that the sentence was manifestly excessive.
Despite the matters to which counsel has drawn our attention in support of the first three grounds, and in particular statements by his Honour as to the difficulty of avoiding emotional involvement in the matter, of his having to take into account on penalty: the highly emotional state of the complainant; that the appellant had chosen to deny the offence, in his Honour's view, in a most blatant way; that the appellant's maintenance of his denial of the events was reprehensible in the circumstances, I consider this appeal may be disposed of by turning to an examination of the sentence in the light of the last ground submitted notwithstanding his Honour's comment that the sentence he imposed:-
"… may seem an exceptionally high sentence, however I might point out that the maximum sentence is 20 years and that there are, in my mind, aggravating circumstances in the extreme in this particular case. Most particularly, that the girl was put through a highly traumatic experience in respect of which she still suffers problems. She said in evidence that she still sees his face - that is the face of the accused - every time she closes her eyes."
Whatever be the reason for his Honour imposing a sentence as severe as he did, in my view, this sentence exceeds the bounds of that which fell within an acceptable range of the exercise of a sound discretion.
Accepting that his Honour was concerned with questions of personal deterrence and general deterrence and that his Honour was concerned with those matters particularly in the context of the necessity that young girls should be entitled to use public toilet facilities without fear of being molested or attacked in any way, nonetheless it seems to me that whether because of his Honour having impermissible regard to the matters referred to in the earlier grounds, despite what had been said by the court in Siganto (supra) or for any other reason, his Honour fell into error in imposing a sentence that severe. I remain of this view notwithstanding the prisoner's evidence on his plea that he was unable to remember the circumstances for which he had been convicted of the indecent assault upon the girl in 1989.
The circumstance of aggravation alleged was that the complainant was under 16 years of age. At the time of the offence, she was only some months under that age. Although there was a threat of violence involved, there was a limited display of violence. The penetration in question, whilst abhorrent, was not penile penetration. Notwithstanding their limited utility, it is of significance that the Judicial Commission statistics for the period January 1990 to July 1998 reveal that a minimum term of nine years is well towards the top of the range of all sentences imposed for offences under the section in question, notwithstanding that the circumstances of aggravation available for such offences embrace matters of considerably greater culpability than here.

I would set aside his Honour's sentence and, having regard to the necessity for the court to sentence now in accordance with the Crimes (Sentencing Procedure) Act 1999: see Regina v. Carrion [2000] NSWCCA 191, in my view the appellant should be sentenced to a term of imprisonment for nine years commencing on 14 May 1998 and expiring on 13 May 2007.
Notwithstanding counsel's submissions, I see no basis for any finding here of special circumstances and consequently, s.44(2) of the Crimes (Sentencing Procedure) Act 1999 constrains the setting of a non-parole period not less than three quarters of the term of the sentence.
I would set, in respect of that sentence, a non-parole period of seven years which will expire on 13 May 2005.
The orders I propose are - appeal against conviction dismissed; leave to appeal against sentence granted and the appeal against sentence upheld; sentence quashed and in lieu thereof the offender be sentenced to a term of imprisonment for nine years commencing 14 May 1998 and expiring 13 May 2007 with a non-parole period of seven years which will expire on 13 May 2005. The earliest date on which the offender will be eligible for release will be 13 May 2005.

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LAST UPDATED: 27/10/2000

[2000] NSWCCA 446

27 October 2000