Ramsey v The The King

[2022] NSWCCA 197

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ramsey v R [2022] NSWCCA 197

Hearing dates:

29 July 2022

Date of orders:

12 September 2022

Decision date:

12 September 2022

Before:

Beech-Jones CJ at CL
Wilson J
Fagan J

Decision:

(1)   Grant leave to appeal against conviction.

(2)   Dismiss the appeal against conviction.

(3)   Leave to appeal against sentence refused.

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice – unreasonable verdicts – new evidence – no error or miscarriage of justice shown – verdict not unreasonable – appeal against sentence – special circumstances – whether error in consideration of appellant’s subjective circumstances – manifest excess – no error shown – sentence not excessive

Legislation Cited:

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Dansie v The Queen [2022] HCA 25

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26

Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35

R vAbou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35

Category:

Principal judgment

Parties:

Mark Ramsey (applicant)
Regina (respondent)

Representation:

Counsel:
Self-represented (applicant)
C Curtis (respondent)

Solicitors:
Self-represented (applicant)
Solicitor for Director of Public Prosecutions (respondent)

File Number(s):

2018/4189

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 755

Date of Decision:

13 December 2019

Before:

Priestley SC DCJ

File Number(s):

2018/4189

Headnote

[This headnote is not to be read as part of the judgment]

Between 28 August 2019 and 6 September 2019 Mark Ramsey (‘the appellant’) stood trial before Priestley SC DCJ and a jury of 12 in the District Court at Newcastle on an indictment containing four counts of indecent assault and one count of sexual intercourse without consent. On 6 September 2019 the jury returned a verdict of guilty in relation to all counts.

All five offences involved a single complainant, JM. The offending occurred while JM, who was aged 16 at the time, resided with the appellant in early 2017. During this time, on a number of occasions JM awoke to find the appellant fondling his penis and on one occasion performing oral sex on him. The appellant’s case was that the acts were consensual.

On 13 December the appellant was sentenced by Priestley SC DCJ to an aggregate term of imprisonment of 6 years with a non-parole period of 4 years.

The appellant, who was self-represented on appeal, sought leave to appeal both his conviction and sentence. On the appellant’s conviction appeal he raised ten grounds. Two grounds asserted a miscarriage of justice resulted from untendered evidence. Three grounds asserted a miscarriage of justice was occasioned by the conduct of the trial. The remaining grounds of appeal concerned the reasonableness of the jury’s verdict.

On the appellant’s sentence appeal six grounds were argued. Three of the grounds concerned the way the sentencing judge considered special circumstances as well as the appellant’s criminal record and willingness to engage rehabilitation programs. Two of the grounds asserted error in the fact character evidence was not called during sentence proceedings and the deterioration of the appellant’s mental health after sentence. The final ground of appeal on the sentence appeal asserted the sentence was manifestly excessive.

The Court held (Beech-Jones CJ at CL, Wilson and Fagan JJ), granting leave to appeal against conviction but dismissing the appeal and refusing leave to appeal against sentence:

As to the untendered evidence at trial issue

1. The untendered evidence of phone records did not satisfy the Court of a reasonable doubt concerning the appellant’s guilt: [32]-[34]

Ratten v The Queen (1974) 131 CLR 510 applied.

Lawless v The Queen (1979) 142 CLR 659; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 cited.

2. Evidence of phone records and expected evidence from witnesses not called, could readily have been adduced at trial by the appellant and was therefore not “fresh” evidence: [34], [36], [38], [41]

Ratten v The Queen (1974) 131 CLR 510 followed.

3. Taking the view most favourable to the appellant of all the evidence that was before the jury, together with the putative additional evidence, it is not likely that the jury would have acquitted him: [35], [36], [39], [41]

Ratten v The Queen (1974) 131 CLR 510 applied.

As to the conduct of the trial issue

4. No error arose in the trial judge granting leave for the complainant to refresh his memory, which was not objected to: [44]

5. Contrary to the appellant’s submissions none of the evidence complained of as hearsay was used for a hearsay purpose or objected to at trial: [46]-[48]

6. The appellant was fairly tried according to law: [51]-[52]

As to the unreasonable verdict issue

7. Making proper allowance for the advantage enjoyed by the jury and taking into account that it is “the body entrusted with the primary responsibility of determining guilt or innocence”, it could not be said that the verdicts are unreasonable, or unsupported by the evidence: [56]

M v The Queen (1994) 181 CLR 487; Dansie v The Queen [2022] HCA 25 applied.

As to the special circumstances issue

8. The sentencing judge appropriately found special circumstances and no error was identified: [61]

As to the subjective circumstances issue

9. The appellant is bound by the decision of counsel who appeared for him in the sentence proceedings not to call character evidence: [62]

10. The sentencing judge correctly had regard to the appellant’s criminal record and did not act under a misunderstanding as to the nature of the prior offending: [63]

11. Although the appellant stated he was willing to engage in rehabilitation programs it was open to the sentencing judge to find that the appellant’s lack of empathy, insight or remorse gave rise to a reservation about whether he could benefit from such programs: [64]

12. The asserted mental health issues of the appellant are post-offence considerations which cannot be taken into account in determining error in the sentence imposed: [65]

As to the manifest excess issue

13. Taking into account all relevant factors, the aggregate sentence imposed was not manifestly excessive: [67]

Dinsdale v The Queen (2000) 202 CLR 321 cited.

Judgment

1. THE COURT: Mark Andrew Ramsey seeks leave to appeal against his conviction on four counts of indecent assault contrary to s 61lL of the Crimes Act 1900 (NSW) and one count of sexual intercourse without consent contrary to s 61I. (Section 61L, as then in force, has been replaced by s 61KC with effect from 1 December 2018). All five offences were alleged to have been committed between 27 January 2017 and 7 February 2017 against a 16-year-old boy, JM. The appellant was tried before his Honour Judge Priestley SC and a jury, commencing on 28 August 2019. Verdicts of guilty on all counts were returned on 6 September 2019. From that date the appellant was remanded in custody until he was sentenced on 13 December 2019.

2. The grounds of appeal against conviction involve questions of fact and require leave. The Court proposes to grant leave with respect to the conviction appeal and hence Mr Ramsey is referred to throughout these reasons as the appellant. He is self represented. Pursuant to ground 1 he contends that the verdicts of guilty are unreasonable, or unsupported by the evidence. His nine other grounds of appeal against conviction are expressed in brief phrases that are not self-explanatory. It will be necessary to refer to the evidence and the issues at trial before identifying those other grounds, in order to have some context from which the nature of the appellant’s complaints may be understood.

3. The learned trial judge’s Remarks on Sentence have been published: R v MR [2019] NSWDC 755. The maximum penalty under s 61L is 5 years’ imprisonment, with no standard non-parole period. His Honour nominated indicative sentences of between 4 months and 18 months for the counts laid under s 61L, being 1, 3, 4 and 5. The maximum penalty for an offence against s 61I is 14 years and a standard non-parole period of 7 years is prescribed. An indicative sentence of 4 years and 6 months was nominated by his Honour for count 2, which was laid under that section. An aggregate sentence of 6 years was imposed for all offences, commencing on 6 September 2019 and expiring on 5 September 2025, with a non-parole period of 4 years expiring on 5 September 2023.

4. The appellant contends in ground 1 of his sentence appeal that the aggregate sentence is manifestly excessive. He has raised five further grounds, again expressed in brief phrases, the meaning of which can best be understood after reference has been made to the sentence proceedings and the Remarks on Sentence.

Evidence at trial

5. The appellant was 37 years old in February 2017 when the relevant events occurred. JM was aged 16. JM’s parents and siblings lived in a suburb of Newcastle but JM did not live with them because of conflict with his father, Stephen M. JM lived with his grandmother and had commenced year 11 at school from the beginning of Term 1 in 2017. JM met the appellant in December 2016. At the same time he became friendly with a 21 year old male, NB, who was residing with the appellant in a suburb of Newcastle. The appellant and NB occupied a two-bedroom home rented from the Department of Communities and Justice. NB was committed to prison from 24 January 2017 and from that time JM commenced to reside with the appellant. JM slept on a double mattress on the lounge room floor. There was a single mattress beside the double. The appellant occupied one of the bedrooms.

6. After JM had been sleeping at the appellant’s house for about a week, he fell asleep late one evening on the double mattress in the lounge room while the appellant was in the adjoining kitchen. JM was wearing a T-shirt, underpants and shorts. Some time later JM woke to find the appellant fondling his penis. JM said that he was scared and he froze. The appellant was lying on the single mattress and he stroked JM’s penis for about 15 minutes, then got up and left the house. This conduct constitutes the indecent assault charged in count 1.

7. JM went back to sleep. After about two hours, in the early hours of the morning and still in darkness, he woke again and found the appellant performing oral sex on him. Once more, JM froze in fear. The appellant continued for about 15 minutes until JM ejaculated. The appellant then got up and walked out of the room. This constituted the charge of sexual intercourse without consent in count 2.

8. The next morning the complainant drove JM to his parents’ house, a journey of 15-20 minutes. JM said that on the way he turned to the appellant and said, “I didn’t like what happened last night”. The appellant made no reply but when they stopped in the driveway of JM’s parents’ house about 10 or 15 minutes later the appellant said, “Yeah, OK”. Despite the events in counts 1 and 2, JM continued to reside at the appellant’s house.

9. On a subsequent evening, probably Sunday 5 February 2017, JM fell asleep on a lounge in the lounge room of the appellant’s house. He was wearing only underpants and shorts. He was woken after a while by the actions of the appellant, who had one arm around JM cuddling him and the other hand inside JM’s shorts rubbing his penis on the outside of his underpants. This was the indecent assault charged as count 3. JM gave the following evidence:

I asked him what he was doing. And then I said, like, told him that I didn’t like it and that I’m not gay. And […] look how old he is compared to me, like, why would he want to do stuff like that considering the massive, like, age distance on it.

JM said that he then got up from the lounge and went to the appellant’s room to get away from him.

10. The appellant then proceeded to play loud music in the lounge room for about two hours before leaving the house. JM sent a text message to a friend, Jess, telling her what had occurred. She replied that she would come and pick him up in a few hours. While waiting for her JM went to sleep on the mattress in the appellant’s room. When he awoke, the appellant had returned to the house. He entered the bedroom, put his hand inside JM’s underpants and touched his penis. This was the third instance of indecent assault, charged in count 4.

11. JM rolled away from the appellant but the appellant then put his hand down the back of JM’s underpants and “started playing, like, trying to play with” JM’s anus. That was the fourth and final instance of indecent assault, charged in count 5. Jess arrived at 7:30am on Monday, 6 February 2017 and took JM away from the house.

12. The above narrative is essentially a summary of JM’s evidence at trial.

13. During the evening of Tuesday, 7 February 2017 JM and his father, Stephen M, went to the appellant’s house to recover JM’s possessions. The house was locked with the appellant inside. He would not open the door. JM smashed a window to gain entry. The appellant called the police. Senior Constable Jeffrey Smith attended. He located JM and Stephen M nearby. JM admitted to having smashed the window and told the officer that the appellant had committed sexual acts upon him. Reading from notes taken at the time, the senior constable said that his exchange with JM at that time included the following. This was apparently in the presence of JM’s father:

JM   I went to bed a couple of days ago. I woke up and he was next to me, rubbing me (indicating groin area). I told him to stop but he didn’t. I pushed him off me and I went into the front room and went to sleep. He came in and did it again I told him to stop but he just pushed me down. Then I just let it happen.

SC Smith   Are you and [the appellant] in any sort of relationship? Did you give him consent at any time for this or would he think that you would have given him consent?

JM   No, I told him to stop and was pushing him off, but he pushed me down. I was scared of him and I just let it happen.

14. Senior Constable Smith went to the appellant and told him there was an allegation that he had had sexual relations with JM. After hesitation the appellant said that there had been one occasion of oral sex but that it had been consensual and that JM was “over age”. The senior constable then spoke again to JM and suggested that he could speak more freely now that his father was not present. JM then told the officer that there had been an instance of oral sex a couple of weeks earlier that was not consensual and that he had “just let it go” because he was afraid. JM then said that on the most recent occasion the appellant had performed oral sex on him again, in the “back room”, and that he had tried to push him off but “just sort of went with it” because the appellant pushed him back and he was scared. He told the officer that he then went to the “front room” and went to sleep but the appellant came there and the same sequence was repeated, with oral sex.

15. In a recorded police interview on 16 June 2017 the appellant admitted that he had performed oral sex on JM. He claimed that this had occurred about two weeks prior to 7 February 2017. He acknowledged that he had made this admission to Senior Constable Smith when the latter attended his house on 7 February 2017. The appellant also said that the oral sex would have occurred on about 29 or 30 January 2017. His answers included the following:

[It] was a one-off incident – that we both consented to and we both spoke about it before and after.

16. The appellant claimed that JM was “curious” about homosexuality and that their discussion of the subject led to a single instance of oral sex, that commenced with JM taking his erect penis “out of his pants himself”. The appellant said that this occurred on the mattress in the lounge room at about 10:30pm one evening. The appellant denied the prior and subsequent instances of touching JM’s penis and anus in counts 1, 3, 4 and 5 and he denied that the instance of oral sex had commenced while JM was asleep, as alleged in count 2.

17. The recorded interview was admitted in evidence. Defence counsel cross-examined JM on the basis of it. JM was challenged generally on the account given in his evidence in chief. JM was emphatic that the appellant’s sexual contact with him was not consensual. He denied that prior to the events in count 2 he had started “to ask Mark questions about what it was like to be gay”. JM gave this answer:

No. Not at all. Not once have I ever questioned my sexuality.

18. When it was put to him that the first instance of oral sex commenced with him taking his penis out of his shorts he answered:

Fuck, you’ve got to be kidding me.

At that point the learned trial judge noted that JM was distressed and he adjourned proceedings briefly to enable him to compose himself. JM was 18 years old at the date of the trial and these questions were being asked of him 18 months after the events.

19. JM’s messages to his friend Jess at about 4:30am on Monday, 6 February 2017, requesting that she pick him up, referred to the appellant “cuddling and touching me”. The messages were consistent with the very recent occurrence of the events described in counts  3, 4 and 5. They were consistent with JM having no sexual interest in the appellant and being afraid of him. Jess’s grandmother drove her to collect JM at about 7:30am. When JM got into the car he did not speak but Jess observed that he was “very upset”, that his “eyes were a bit puffy, like he’d been crying, and you could tell in his voice that he had been”.

20. JM was initially unwilling to speak to any adult about what had occurred. He returned to his parents’ house later in the day and his mother observed that he was very quiet. He later spoke with another female friend of his own age and asked her to inform his mother about the events. JM’s mother then asked him if there was anything he wanted to tell her but at that stage he was adamant that he did not want to talk. About two days later he told his mother, as she described the conversation, that the appellant had “touched him inappropriately”, “tried to fondle” his penis and “tried to do oral sex on him”. In cross-examination JM’s mother agreed that she had understood her son to complain of two instances of oral sex, or of attempts.

21. The Crown tendered a schedule of text messages exchanged between the appellant and JM over the period 4 to 8 February 2017. This became Ex D. Most of the messages were from the appellant. A message on 4 February was as follows:

Smile and remember I love u SB xo

JM gave evidence that the initials SB stood for “sexy beast”, by which name the appellant at times referred to him or addressed him. JM said that this made him feel very uncomfortable.

22. In a message sent on the afternoon of Sunday, 5 February 2017 JM informed the appellant by text message that he was going with Jess and her aunt to see a film. The appellant responded with a series of self-pitying messages about JM’s preference for Jess over himself. At 8:26am on Monday, 6 February 2017, after Jess had picked up JM following the indecent assaults in counts 3, 4 and 5, the appellant sent JM this message:

Hope u OK. I don’t mean to get cranky but u really hurt me at times. Have fun with everyone xoxo

This was followed by numerous unsuccessful attempts by the appellant to contact JM by phone.

23. The appellant did not give evidence himself and did not call any witnesses.

Overview of the grounds of the conviction appeal

24. Two of the appellant’s grounds of appeal against conviction, grounds 8 and 9, concern evidence that was not adduced in the trial and that the appellant says should have been. It is logical to resolve those grounds first.

24. Another group of grounds, 4, 5 and 6, are concerned with alleged specific errors of law or procedure that are said to have caused a miscarriage of justice. Those specific complaints need to be addressed next, before coming to the general question of whether the verdicts are unreasonable, or cannot be supported by the evidence, as alleged in ground 1.

25. Grounds 2, 3, 7 and 10 allege specific weaknesses in the Crown case and appear to be embraced within the contention that the verdicts are unreasonable. Those grounds will therefore be addressed together with ground 1.

Ground 8 – text messages not tendered

27. Ground 8 is in the following terms:

8   Unpresented evidence / contested evidence

In support of this ground the appellant identified additional evidence, not adduced at trial, which he submits is capable of proving that Ex D, the agreed schedule of text messages between himself and JM, does not include some texts that were sent to the appellant from JM’s phone. The appellant does not identify any evidence of the content of the allegedly omitted texts.

28. JM gave evidence that he provided to the officer in charge of the investigation screenshots from his mobile phone of messages between himself and the appellant that were stored on the device. He said that those messages were then reproduced in Ex D. Under cross-examination JM denied that prior to providing the screenshots to police he had deleted some messages in reply to the appellant. His answers to the Crown included the following:

Q   And before and after these offences you and Mark exchanged some text messages?

A   Yeah.

Q   And you exchanged some telephone calls do you remember that or not?

A   No that was, so some of the messages and that - they were from my phone but they from Dad’s Baff.

29. The words “Dad’s Baff” appear to be a transcription error. The Court has not been provided with anything that would clarify what was said by the witness. It is possible that the effect of JM’s evidence at this point was that his father sent some messages to the appellant from JM’s phone. If that is what JM said or meant, his evidence did not clarify when that occurred within the period “before and after these offences”. JM did not say that his father had sent messages on JM’s phone during the period covered by Ex D, being 4-8 February 2017.

30. In the absence of any evidence of the content of text messages that may have been omitted from Ex D, the appellant has identified only one point of relevance of the bare fact that additional messages were sent; namely, that it would contradict JM’s evidence that he did not delete messages from his phone. In fact, the evidence that there were additional messages sent to the appellant would provide no contradiction at all. There was no assertion by JM that every message that had been stored on his phone and of which he provided a screenshot to the officer in charge was included on Ex D. The exhibit was prepared by the Crown and defence representatives. JM had no part in it. If there were reply messages from JM’s phone to the appellant additional to those that appear on Ex D, that would not be inconsistent with JM’s evidence. This is true of both reply messages that may have been composed and transmitted by JM himself and messages that his father may have sent using JM’s phone.

31. The appellant read an affidavit from his mother, Dianne Ramsey, sworn 6 October 2021, to which is annexed a schedule of call charge records for the appellant’s phone. The schedule provides the date and start time of numerous outgoing text messages from the appellant’s phone to JM’s phone and to a second phone number that the appellant alleges was also used by JM. As this itemises only outgoing messages, it is incapable of establishing the appellant’s proposition that there were reply messages in the period 4-8 February 2017 that were omitted from Ex D. In the appeal, the only evidence that messages were omitted from Ex D is the appellant’s own assertion.

32. The question raised by ground 8 is, therefore, whether there has been a miscarriage of justice by reason of the jury not having received evidence from the appellant that there were text messages from JM’s phone to himself additional to those listed in Ex D, such evidence not including the content of such messages. The question of miscarriage of justice is to be resolved by considering the sequence of alternatives outlined by Barwick CJ (McTiernan, Stephen and Jacobs JJ agreeing) in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, subsequently endorsed in Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 and Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 and followed in numerous decisions of this Court, of which R vAbou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] is frequently cited.

33. Applying Barwick CJ’s judgment, in an appeal brought in reliance upon evidence additional to that which was before the jury, the Court must at the outset determine whether the evidence is capable of belief. Assuming that it is, his Honour said (p 518) that the Court may be required to consider whether the conviction should be quashed and a verdict of acquittal entered, as follows:

If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, […] taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged.

Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice.

34. In the present case, the additional evidence now under consideration, taken at its highest in conjunction with the evidence adduced at trial, by no means satisfies the Court of a reasonable doubt concerning the appellant’s guilt. If adduced at trial, the evidence would at most have had some peripheral bearing upon the credit of JM. Proceeding according to Barwick CJ’s analysis, two further matters are therefore to be considered, successively. The first is whether the additional evidence is “fresh” in the sense explained by his Honour at p 517:

evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case.

[…]

It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

35. Barwick CJ stated that if the additional evidence is not fresh in this sense, then there will have been no miscarriage of justice and an appeal ground that is founded upon the evidence should be rejected. If the additional evidence is fresh, the second matter to be considered is as set out by his Honour at p 520:

The claim on behalf of the appellant, whether as an alternative to a claim to the absolute quashing of the conviction, or as his sole claim, [may be] that without the consideration of the fresh evidence by the jury a miscarriage will have occurred: the trial will not have been a fair trial. In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take. […] In the situation with which I am presently dealing, namely of fresh evidence not claimed to establish innocence but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration.

36. The limited evidence that the appellant has adduced in the appeal, to the effect that there were some messages between JM’s phone and the appellant’s phone beyond those listed on Ex D, could readily have been adduced at trial by the appellant. It was constructively available. It is not fresh evidence. The appeal on this ground fails at that hurdle. If the Court were to come to the second matter identified by Barwick CJ, as referred to in the preceding paragraph, ground 8 would still fail. Taking the view most favourable to the appellant of all the evidence that was before the jury, together with the putative additional evidence that there were some further messages between JM and himself, it is not likely that the jury would have acquitted him. There is no substance in the matters argued by the appellant pursuant to ground 8 and it is rejected

Ground 9 – witnesses not subpoenaed

37. Ground 9 is expressed as follows:

9   Witnesses not subpoenaed

The appellant’s written submissions name four witnesses whom he contends should have been called. There is no suggestion that any request was made to the Crown to call these people. This is not a contention that a miscarriage of justice occurred through the failure of the prosecution to fulfil its duty to call all relevant witnesses. The named witnesses are JM’s sister, grandmother, uncle and aunt.

38. In respect of each of the sister and grandmother the appellant has annexed to an affidavit filed in support of the appeal a summary of the evidence that could have been led from them (Annexures H and J, dated 22 and 21 September 2021, respectively). According to those annexures the matters of which the sister and grandmother could give evidence were events at which the appellant himself was present and/or circumstances of which he was aware at the time they occurred. At the date of the trial he knew these matters were within the knowledge of the prospective witnesses. This is clearly evidence that could have been presented to the jury in his case, with reasonable diligence on the part of the appellant and his legal representatives. In Barwick CJ’s terms, it is not “fresh” evidence. Applying the authorities cited above, no miscarriage of justice was occasioned by reason of these witnesses not having been called.

39. In light of the above conclusion it is not strictly necessary to consider the substance of what these two witnesses could say. However, the Court is of the firm view that, in the context of the entirety of the evidence given at the trial, nothing in Annexures H and J, if sworn to by the sister and grandmother respectively, would have been at all likely to cause the jury to entertain a reasonable doubt about the appellant’s guilt. The sister could give evidence that on an occasion when JM and the appellant visited her at a regional town, JM’s father was present and expressed disapproval of JM staying at the appellant’s house. JM appeared upset by this but when the appellant offered to drop him at his grandmother’s house he said that he preferred to go back with the appellant. The grandmother could give evidence that JM wanted to live at the appellant’s house and that she transported him there and assisted him to get some of his furniture moved into the house. All of this would prove no more than that for a period prior to the night during which counts 3, 4 and 5 were perpetrated, JM was content to reside with the appellant. That was not in issue.

40. Annexure I dated 23 September 2021 asserts that JM’s uncle and aunt:

may have been able to provide the itemised phone bill which would have shown regular text messages that JM had sent to me. It would also have shown that there were messages not included in Exhibit D.

41. According to the annexure, the uncle and aunt attended the trial and the appellant’s solicitor spoke to the uncle. Anything that these witnesses could give in evidence would have been available to the appellant at trial, with the exercise of reasonable diligence. Their testimony is not “fresh”. Further, on the appellant’s argument, their evidence would only establish the date and time of more messages but not their content. For reasons already stated, such evidence would not be capable of demonstrating to this Court that there is a reasonable doubt about the appellant’s guilt or that, if given at the trial, the evidence would likely have caused the jury to entertain a reasonable doubt. Ground 9 is rejected

Ground 4 – leading questions by the Crown

42. Ground 4 is as follows:

4   Leading questions by the Crown

43. In support of this ground the appellant has referred to only one passage of examination in chief. When JM recounted the events of the last night spent by him at the appellant’s house, he described the indecent assaults in counts 3 and 5 but he did not at first refer to that which was alleged as count 4. The prosecutor sought leave for the witness to refresh his recollection from a statement he made to police on 13 May 2017, in which the indecent touching alleged in count 4 had been described at par 18. Leave was granted pursuant to s 32 of the Evidence Act 1995 (NSW). It was not opposed. JM read par 18 of his statement and then gave evidence of the substance of count 4.

44. There was no error in the learned trial judge granting leave for JM to refresh his recollection from a statement made three months after the events in question, where the grant of leave was not opposed. Ground 4 is rejected

Ground 5 – hearsay rule

45. Ground 5 is as follows:

5   Hearsay rule

46. Pursuant to this ground the appellant identified four instances of alleged reception of hearsay evidence. The first was in the cross-examination of JM’s friend, Jess, at T 110.30-.50. The appellant’s counsel quoted to the witness passages from her police statement. Jess agreed that she had said the things that were read back to her and that throughout her statement she had not attributed to JM a certain phrase, as put to her. This evidence was not used for a hearsay purpose. In any event it was adduced by the appellant’s counsel. No error occurred in the reception of the evidence.

47. The second passage was again from the cross-examination of Jess, at T 113.50. She said that when she picked up JM from the appellant’s house he did not bring any of his possessions or belongings with him. The appellant submits that this is contradicted by evidence from JM himself at T 37.40 where he said that as he left he “grabbed what I could of […] my stuff”. The evidence of JM in this respect was non-specific. It may have been at odds with Jess’s evidence but the latter was not hearsay.

48. The appellant identifies four passages of the police record of interview with JM. In the absence of the jury, at T 183, that document was marked: MFI 6. It did not go into evidence. This appeal ground cannot be supported on the basis that part of it was hearsay. The appellant also identifies the whole of MFI 3, being the notes of Senior Constable Smith’s conversations with JM and with the appellant in the vicinity of the appellant’s house on 7 February 2017. Relevant parts of the note were read out by the witness without objection by the appellant’s counsel. Not being objected to, that evidence was admissible. No objection could have been taken: the statements made by JM to the senior constable were properly received as evidence of recent complaint and the statements by the appellant were admissions against his interest.

49. There is no substance in ground 5 and it is rejected.

Ground 6 –

50. Ground 6 is as follows:

6   Fair Trial Rule

The sum total of the appellant’s elaboration of this ground is contained in the following written submissions:

(a)   Was I convicted in a “Court of Public opinion” Was verdict based on evidence or jury’s morals/public morals or beliefs.

(b)   Was I disadvantaged by original Barrister Duncan Berents not being available and us both wanting to apply for a judge only trial and also wanting to get phone records subpoenaed?

51. As to (a), there is no indication in the record of the trial that it was conducted other than fairly according to law. The jury were directed to decide the case on the evidence and in accordance with unimpeachable instructions that his Honour gave concerning the elements of the offences. The summing up included the customary warning against emotional reaction to the facts, as follows:

In reaching your verdicts, considerations of emotion and prejudice and personal views as to the seriousness of particular criminal conduct must play no part. You are bound by your oaths and affirmations to give a true verdict, according to the evidence. You would appreciate that this is a criminal court, hearing a criminal allegation of a serious nature. It is not a court of morals or ethics. You are not considering moral or ethical issues related to, for example, sexual behaviour or age differences of people who are, as in this case, of the age of consent. […] You must, as a jury, act impartially, dispassionately and fearlessly. You must not let sympathy or emotion or prejudice sway your judgment.

52. As to (b), assuming that Mr Berents was the appellant’s first choice of defence counsel, rather than Mr Hussey who in fact appeared, that of itself cannot be said to have given rise to a miscarriage of justice. No allegation of incompetence is particularised, let alone substantiated, against defence counsel in respect of his conduct of the trial. No application for a trial by judge alone was ever made.

53. Ground 6 is rejected.

Grounds 1, 2, 3, 7 and 10 – unreasonable verdict

54. Grounds 1, 2, 3, 7 and 10 are as follows:

1   The Jury verdict was unreasonable or cannot be supported having regard to the evidence.

2   The credibility of the victim.

3   Contradiction / collusion of evidence.

7   Credibility rule.

10   Beyond reasonable doubt / balance of probability.

55. In support of these grounds the appellant has submitted that the following features of the evidence ought to have caused the jury to have a reasonable doubt:

1. Inconsistency between JM’s evidence in chief as to a single instance of oral intercourse and four occasions of indecent touching, compared to his statements to Senior Constable Smith that there were three occasions of oral sex.

1. Alleged improbability of JM’s evidence that, after the indecent assault in the lounge room in count 3, he retreated into the appellant’s bedroom.

2. Alleged knowledge on the part of JM, from before the first indecent assault, that the appellant was homosexual.

3. Alleged willingness of JM to reside at the appellant’s house, including after visiting his grandmother and after visiting his parents’ home following the commission of counts 1 and 2.

4. The appellant’s ready admission to Senior Constable Smith, on 7 February 2017, of one instance of oral intercourse, his willingness to take part in a recorded police interview and his consistency throughout that interview in maintaining that only one act of a sexual nature had occurred.

56. On the authority of M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and all the cases that have followed it up to Dansie v The Queen [2022] HCA 25, for the purpose of determining ground 1 the Court has reviewed the whole of the evidence in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Having done so, the Court has no sense of any reasonable doubt about the jury’s verdicts. The asserted discrepancies and other arguments referred to by the appellant are all matters that it was open to the jury to resolve, having seen and heard the witnesses and having listened to the recording of the appellant’s police interview. Making proper allowance for the advantage enjoyed by the jury and taking into account that it is “the body entrusted with the primary responsibility of determining guilt or innocence”, it cannot be said that the verdicts are unreasonable, or unsupported by the evidence. Grounds 1, 2, 3, 7 and 10 are rejected.

Sentence appeal

57. The objective circumstances of the offending sufficiently appear from the summary of the evidence at trial, given earlier in these reasons. The appellant was 21 years older than the complainant. The latter was obviously vulnerable. As the learned judge found, the complainant was imposed upon by the “more experienced and more worldly-wise” appellant. His Honour’s assessments of the relative degree of objective seriousness of the respective offences were as follows. The indicative sentence for each count, arrived at by his Honour after taking into account the subjective factors discussed below, are shown in brackets:

Count 1: fondling of the complainant’s penis. His Honour accepted that this continued for some period, although not likely to have been 15 minutes as estimated by the complainant. It commenced when the complainant was sleeping. It was not merely “brief or passing”. The objective seriousness was “in the mid range”. [18 months].

Count 2: oral sex. This also commenced while the complainant was sleeping. Again the learned judge did not consider it likely that the conduct continued for the period of 15 minutes estimated by the complainant but was not brief and the fact that it continued until he ejaculated added to the gravity. His Honour accepted that there was no resistance because the complainant was afraid. There was nothing to indicate consent. The objective seriousness was “in the low mid-range”. [4 years and 6 months].

Count 3: fondling of the complainant’s penis on the outside of his underpants. This commenced when the complainant was asleep. As this did not involve skin on skin contact his Honour assisted “in the low range of objective seriousness but by no means at the bottom of that range”. [4 months].

Count 4: fondling of the complainant’s penis. This was skin on skin but over a relatively brief timeframe, as the complainant rolled away from the appellant. His Honour found that “it could in no way be described as momentary” and placed it “in the high low range of objective seriousness”. [6 months].

Count 5: touching the complainant’s anus. His Honour was satisfied beyond reasonable doubt that this was direct contact on the complainant’s skin. He assessed it as having substantially the same objective seriousness as count 4. [8 months].

58. The appellant tendered on sentence a report of Dr Rebecca Smith, forensic psychologist, upon which the learned judge relied to make findings concerning the appellant’s background in accordance with the history he had provided to Dr Smith. Extracts of the material parts of his Honour’s findings are as follows:

[29]   He was born in Singleton to a coalminer father and a nurse mother. That relationship of his parents was not a happy one and they separated when the offender was five whereafter he lived with his mother and visited his father fortnightly. With his mother working the offender was often left alone. At some point his mother owned or operated a corner shop and the offender helped her in that business. The mother remarried to a man the offender described as a violent alcoholic and they had a very poor relationship. His father also remarried to a person the offender disliked and his relationship with his father deteriorated. He has not seen his father in years.

[30]   The offender’s mother remarried a third time to another person disliked by the offender. That relationship is now over and there is a good relationship now between the mother and the offender.

[31]   The offender is distant from his brother.

[32]   [The offender] struggled at school and displayed difficult behaviours and had poor academic performance. He found forming friendships difficult and left school in year 10 to pursue a TAFE course. He found this difficult and was granted a disability support pension and only worked on and off thereafter, occasionally in PC repairs. He damaged his hands and employment has been limited since.

[33]   In terms of his medical history he was diagnosed with attention deficit disorder in childhood. He saw many health and allied health professionals including doctors, psychiatrists, occupational therapists and physiotherapists. When in custody at the age of 21 the offender recounts being brutally raped and tortured for 2 ½ hours and was subsequently diagnosed with PTSD. He has sought counselling for this.

[34]   In 2012 he had his first inpatient admission to a mental health unit for [suicidality] and has seen them a few times since. He was referred to a community mental health team and attended as an outpatient for some time. He described emotional volatility to the psychologist. He denied any delusional beliefs or other markers of a major mental illness.

[35]   Physically the offender has ongoing pain in his back and legs from beatings during previous relationships which were abusive. The history of this is not clear.

[36]   As to his relationships he has had violent relationships, making bad choices including one lasting from 10 to 12 years which was often interrupted by jail time. This relationship involved drug use by his partner

[37]   As to substance use he smoked marijuana from about the age of 18 or 19 and continues to do so. In his 20s he used heroin speed and ice. He last used amphetamines in 2015. He does not struggle with substance addiction. He denied drug use played a role in the offending behaviour. He acknowledged 10 or more breaches of an AVO, and referred to a custodial sentence of 7 ½ months in relation thereto. Apparently the AVOs involve his mother as the person in need of protection.

[38]   When asked about the offences he maintained his belief that it was consented to but did indicate remorse regarding the age difference which is consistent with his position taken in his police interview. The assessment of the psychologist was that the offender met the criteria for borderline personality disorder. The psychologist summarised the matter as saying the offender appeared to have a life characterised by problematic behaviours and mental health issues. The offender has clear evidence of difficulties with developing appropriate skills and mechanisms relating to coping including his resort to using drugs as a coping strategy which increases his susceptibility to impulsivity and aggression. He has struggled to develop the social skills typically enabling people to deal with the stresses of daily life in productive ways.

[39]   As to the offending behaviours the offender did not appear to believe that his behaviours were wrong and expressed limited empathy for the victim. The suggestion was made that he may benefit from specialised intervention associated with a sex offender treatment program though he did not believe this was necessary and his motivation for such was poor. The report writer notes that he would be unlikely to be prioritised for treatment in custody in any event.

[40]   The psychologist suggests the offender may have a borderline personality disorder but the limitations of the AVL assessment prevented any more definitive view.

[41]   The recommendations were for interventions to reduce the risk of reoffending and engagement with mental health for his mental health difficulties. The psychologist recommends that the offender be considered for the various programs available in custody. The view is expressed that the offender requires long term psychological support. Concern is also expressed as to suicidal ideation.

[42]   In my view this report reflects an unfortunate life. The offender’s home life was clearly less than stable. If I may venture a view, he seems to have lacked a reliable and steady and worthy male role model, though that is too simplistic a statement to be taken as a fulsome assessment. The report refers to self reported diagnoses of ADD in childhood and PTSD following the alleged rape, and to depressed mood and possible borderline personality disorder. There does not appear from this report however to be any suggestion that the environment of the upbringing of the offender and his adult life was relevantly a causal factor in the offending. Rather, the report makes clear that he considers he has been wronged, and that the victim was consenting to the offending conduct.

[43]   What this means is that the offender lacks insight to his behaviour, its unwanted nature, and the possible harm it may cause. The offender has expressed some remorse in becoming involved with a boy so young, but expresses no remorse for his offending conduct beyond that. I do take into account the offender volunteered the facts of count 2 occurring, albeit he also asserted it was consensual.

[44]   There is little basis for considering that without intervention there are prospects of rehabilitation. The prospect of reoffending must be at least of the middle risk level. I accept the need for rehabilitation and the fact that it will require some time to be achieved.

[45]   The offender’s criminal history is such as to deny him leniency based on prior good behaviour. His criminal record shows offending commencing in 1998, when the offender was 19. That offence was contravening an AVO. In 1999 he was convicted of drug offences and a further contravene AVO, which occurred a further two times that year. In 2000 he destroyed property and again breached an AVO. This offending or similar occurs in 2001, 2002, 2005, 2009, 2010, 2013, 2014 and 2017. The record also shows numerous terms of custody, though it would seem none longer than about 7 months, and then with non parole periods.

[46]   There is an even greater number of suspended sentences, yet the record shows an inability to take advantage of the benefits of a suspended sentence, for the offender continues to offend.

[47]   This is the first offence of this type for this offender, and his vulnerability to a lengthy gaol term is far greater than it previously has been.

59. The Court has been given no reason to depart from any of these findings. They were open to the learned judge. For the most part the findings flowed from acceptance of the history that the appellant had given to his psychologist. Otherwise, his Honour drew reasonable and available conclusions from the primary facts of the appellant’s past, his long-term conduct and the responses he exhibited to the immediate circumstances of the offending.

Grounds of appeal against sentence

60. The appellant seeks leave to appeal against his aggregate sentence of 6 years with a non-parole period of 4 years on six grounds, as follows:

1   Sentence is excessive

2   Special circumstance discount

3   No Character Reference [tendered] / sought

4   Criminal record

5   Attitude towards programs / previous suspended sentence

6   Mental/General Health

61. The grounds that are apparently intended to allege specific error, grounds 2-6, must be considered first. With respect to ground 2, the learned judge found special circumstances on the basis that a longer period on parole would be needed to assist the appellant’s rehabilitation and that his character traits as identified by the psychologist “could well make prison life more difficult than would otherwise be the case”. The non-parole period of 4 years represents a ratio of 66.7% of the head sentence compared to the statutory default ratio of 75%. In support of ground 2 to appellant asserts error in that, although special circumstances were found, he was sentenced to “four years NPP instead of aggregate six however, there is two years parole, so this still adds up to six years”. No error is thereby identified. The appellant’s submission discloses that his complaint under this ground is misconceived.

62. In support of ground 3, the appellant submits the following:

No character references were sought or [tendered]. My mother was present in court and could have been asked about my character.

The submission does not disclose any reasonably arguable point. In the circumstances disclosed by the appellant’s record and the history he had provided to his psychologist, there is no reasonable possibility that any favourable evidence as to character from his mother would have carried appreciable weight. In any event, the appellant is bound by the decision of counsel who appeared for him in the sentence proceedings not to call character evidence.

63. The appellant’s submission in support of ground 4 is simply that most of his past offending “stemmed from family issues mainly between my mother and myself” and that his breaches of Apprehended Domestic Violence Orders have not involved violence. The learned judge did not proceed on any finding or assumption contrary to these propositions. His Honour was entitled to take into account the criminal record at face value, in the neutral terms in which he recited it at [45]-[46] of his Remarks.

64. Ground 5 is supported by the appellant’s assertions that he is and has been “open-minded to complete any programmes open to me in gaol or on any occasion when non-parole/behaviour bonds”. He states in his written submissions that he has completed some anger management and drug addiction programs. These contentions do not detract from the validity of the trial judge’s finding that the appellant’s lack of empathy, insight or remorse give rise to a reservation about whether he can benefit from whatever rehabilitation programs he may undertake. No specific error has been identified in this respect.

65. In support of ground 6 the appellant asserts that his depression and anxiety levels have increased since incarceration and that limited counselling is available to him in prison. These are post-sentence considerations that cannot be taken into account in determining whether there was an error in arriving at the sentence imposed.

66. As none of the alleged specific sentencing errors is reasonably arguable, the question whether the Court should grant leave to appeal against sentence depends upon whether the aggregate term of 6 years with a non-parole period of 4 years should be regarded as manifestly excessive. That is to be determined in accordance with what was said by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, as follows:

[6]   Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

67. Taking into account all relevant factors, the aggregate sentence imposed here was not manifestly excessive. The learned trial judge’s conclusion that full-time custody was called for was open to him. The length of the sentence imposed is not unreasonable or plainly unjust. Ground 1 of the sentence appeal is not sustainable.

Orders

68. For these reasons, the orders of the Court will be as follows:

1. Grant leave to appeal against conviction.

2. Dismiss the appeal against conviction.

3. Leave to appeal against sentence refused.

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Decision last updated: 12 September 2022