Rosenburg v The Queen

[2016] NSWCCA 292

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Rosenburg v R [2016] NSWCCA 292
Hearing dates:	2 December 2016
Decision date:	09 December 2016
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; Schmidt J at [74]
Decision:	1. Extend time for the filing of the Application for Leave to Appeal to 1 July 2016. 2. Grant leave to appeal against both conviction and sentence. 3. Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against conviction – sexual intercourse without consent and indecent assault – where applicant legally unrepresented on appeal – whether applicant incompetently represented at trial – whether verdicts unreasonable or cannot be supported having regard to the evidence – where credibility and reliability of the complainant challenged at trial – overwhelming Crown case – alternative account put to the complainant was incredible – appeal dismissed CRIMINAL LAW – appeal against sentence – where no submissions made in support of appeal – where sentencing judge carefully reviewed all relevant material – predatory offending against a vulnerable complainant – very little in subjective circumstances calling for any leniency – no specific or latent error identifiable – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) ss 61I, 61L, 578A Criminal Appeal Act 1912 (NSW) s 6(1) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 42, 43
Cases Cited:	[Decision Restricted] [2016] NSWCCA 202
Category:	Principal judgment
Parties:	Joseph Stephen Rosenburg (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (Self-represented) Ms V Lydiard (Crown)   Solicitors: Solicitor for Public Prosecutions
File Number(s):	2014/79740
Decision under appeal	Court or tribunal: District Court Date of Decision: 19 June 2015 Before: Hanley SC DCJ File Number(s): 2014/79740

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J and with the additional remarks of Schmidt J.

2. R A HULME J: Joseph Stephen Rosenburg (“the applicant”) seeks leave to appeal against his convictions that followed a trial by jury before Hanley SC DCJ in January-February 2015.

3. An extension of time is required to bring the application. A Notice of Intention to Appeal was filed out of time but the Registrar granted an extension. However, the Notice of Application for Leave to Appeal was then filed after the Notice of Intention had expired some three months earlier. I will return to this issue.

4. The applicant was found guilty by a jury of all six counts in the indictment: three counts of sexual intercourse without consent and three of indecent assault (ss 61I and 61L respectively of the Crimes Act 1900 (NSW)).

5. Leave is also sought to appeal against the sentence imposed; an aggregate term of imprisonment for 11 years with a non-parole period for 8 years 3 months dating from 15 March 2014.

6. The applicant has pursued these applications without legal representation. He has filed extensive documentary material in which he has sought to specify his grounds of appeal against conviction and submissions in support of them. Unfortunately, the material is not only voluminous but the submissions are, to a considerable degree, discursive and repetitive. The Court was greatly assisted by the submissions of counsel for the Crown in which the issues were identified in a more ordered way.

The Crown case

7. Nothing may be published that would identify the complainant (s 578A Crimes Act) so in the following review of the Crown case I will refer to her by the pseudonym "Mary" and her friends just by their first names.

8. On the evening of Thursday 29 August 2013 Mary went to a nightclub at the Exchange Hotel on Oxford Street with some friends. She consumed alcohol on the journey into the city before arriving at the club at approximately 10pm. At about 11pm she, together with her friend, Olivia, left the club, went to the car and consumed a large amount of vodka. They returned to the club and by this stage Mary was quite intoxicated.

9. Mary met up with an unknown man. They left together at 12.02am (according to CCTV footage) and got into a taxi. Mary began to feel unwell. She asked the taxi driver to pull over and she got out. The taxi drove off taking the man with it.

10. Mary felt unwell and very tired. She lay on a concrete ledge next to a building across the road from Hyde Park. At 12.31am she sent text messages to her friends asking for them to call her. She was unable to call them because she did not have any credit on her phone but she did have sufficient credit to send messages. Her friend Brooke, who was at home in Milperra, rang Mary a few minutes later. They arranged for Mary to wait outside the Starbucks Café on the corner of Elizabeth and Park Streets until Brooke could drive to the city and collect her.

11. The applicant approached Mary as she was lying on the concrete ledge waiting for help to arrive. He sat down near her feet, put his hand under her dress and began touching her vagina on the outside of her underpants. She tried to push his hands away as she did not want him to touch her. She was not sure whether there was any conversation. (This constituted the offence of indecent assault in Count 1.)

12. Mary stood up and walked across the road into Hyde Park in order to get away from the applicant. She said, "I was feeling really really weak and I just tried to find somewhere to lay down and I ended up laying down … underneath a tree on, like some pine bark". She vomited.

13. Mary became aware that the applicant had followed her. He sat down at her feet. Mary said she was busy trying not to throw up and just keeping herself awake. She was laying down but with the top half of her body lifted up and twisted to the side as she vomited.

14. The applicant began to touch Mary again in the same manner as before; on her vagina on top of her underpants. She said, "Please don't do this, stop touching me". She said she was otherwise unable to do anything because she was so intoxicated. (Count 2 - indecent assault.)

15. The applicant then made his way up towards her head and asked her to perform oral sex on him. She asked him if he was going to kill her. He replied to the effect that he would not kill her if she just went along with everything. Mary said that at this point in time she was in "a very bad state". The applicant placed his penis in her mouth and she said this was without her consent. (Count 3 - sexual intercourse without consent.)

16. The applicant removed his penis after a short time. He then pushed Mary's underpants to the side and touched her vagina again. (Count 4 - indecent assault.) He then told Mary that because she was not wet he was going to have to lick her. She said he then used his mouth to perform oral sex on her; he licked her vagina. (Count 5 - sexual intercourse without consent.)

17. Mary said that the applicant then inserted his penis into her anus. At this point she was positioned "on my side and a bit on my stomach". She was asked if she had said anything up to this point and she replied:

"Yes well yeah throughout the whole thing I've been, I've been trying to say, 'Stop, please don't do this'. … [H]e did at some points just kept saying 'Shush, shush', yeah."

18. Mary said that the anal intercourse was painful. She believed that she was crying at the time; in fact she had been "the whole time pretty much". She was asked if she had tried to scream at any point and she said:

"I was trying - no I didn't scream I don't think, I remember at some time I thought I was seeing people walking by and I tried to call out but I don't think any noise was coming out, I don't think I was making a sound."

19. She could not recall how the attack concluded but she recalled being able to get up. She could not recall if she saw the applicant again. She tried to get out of the park. She had a feeling the applicant was following her again. She passed a man who was sitting on a bench (later referred to as "the Maori guy"). He asked if she was alright and she told him that she was being chased. He replied, "I won't let him get you".

20. Mary ended up in Elizabeth Street near the entrance to St James railway station. She spoke with her friend Brooke on her phone and told her that she had been raped.

21. Mary said that during the events in the park she was trying to send messages to her friends. There was evidence that at 1.01am she sent a message, "PleDrhp me on". She explained she meant to say "Please call me". Immediately after that message she sent another which read, "I'm being tapes help". She explained that she meant to say, "I'm being raped, help". She attributed the misspelling to her intoxication as well as the predictive text function on her phone.

22. There was evidence that Brooke had tried unsuccessfully to call Mary eight times from 1.04am to 1.08am as she was driving on the M5 towards the city. She finally got through to her at 1.09am. According to Brooke, Mary was hysterical and crying, saying, "he hurt me, he hurt me". She asked Mary what she meant and Mary replied, "he raped me".

23. Brooke arrived at St James railway station at about 1.40am. She found Mary "lying in a ball, all crouched up". She said she "was just crying, hysterical, couldn't breathe much. Her hair was all messy, she smelt of vomit and did not look good at all". She had "leaves and sticks in her hair [and] on her back"; “she had makeup on, that was smeared all over her face". There were scratches like high up on her legs". Brooke said that "when she first saw me and got into the car … she just cried and grabbed my arm and just didn't want to let go".

24. There was evidence that a text message had been sent from Mary's phone to Brooke at 1.57am saying, "Call me ease call me". Mary said that this was meant to read, "Call me, please call me". By this time, Mary was in the car with Brooke. She could not recall sending that text.

25. Brooke gave evidence that she thought the thing to do was to take Mary to a hospital however Mary just wanted to go home. After some discussion, Mary agreed and they proceeded to Bankstown Hospital. They saw a triage nurse there and were directed to go to Liverpool Hospital which had a specialist sexual assault service.

26. It would seem that they arrived at Liverpool Hospital at about 2.30am. Dr Isaacs, a sexual assault specialist who was called in from home, saw Mary at 4.30am. In short, Dr Isaacs observed Mary to be in a distressed emotional state. She gave a brief history that was broadly similar to her evidence in the trial (although the incident in Count 1 was either not mentioned or elided with the touching that initiated the incident in Hyde Park). Dr Isaacs interpreted her history of alcohol consumption by estimating it amounted to 13 standard drinks.

27. Dr Isaacs carried out a physical examination and took a number of swabs. She also took a urine sample at 5.00am and a blood sample at 5.40am. The latter was subsequently analysed and revealed a blood alcohol level of 0.114. Dr Isaacs confirmed that the reading certainly would have been higher from the time that Mary had her last drink (about 11.30pm). A number of injuries in the nature of scratches and bruises were noted. In particular, a red tender roughened area inside the labia minora and a purple area at the entrance to the anus were consistent with the sexual assault complaint but there were other possible causes.

28. A DNA profile from semen found on the inside lower front of Mary's underpants was found to be consistent with the applicant’s. The Crown relied upon this, together with Mary's complaint of pain when anal intercourse occurred as confirming he had an erection; something Mary herself was unable to confirm directly.

29. Detective Senior Constable Cragg attended the hospital at about 6.30am and spoke to Mary "just to get some basic details about what happened". She described Mary as somewhat tired and slightly red around the eyes as if she had been crying. In cross-examination, the detective gave evidence of the version provided by Mary; in short it was an account of a unwanted touching, oral sex and anal intercourse. There was no mention of the initial incident in Count 1.

The applicant’s version rejected

30. The applicant did not give evidence and he did not call any witnesses. His version was put to Mary in cross-examination. It was to the following effect.

31. The applicant approached Mary when she was lying down after having alighted from the taxi. It was put to her that she was in Hyde Park. He asked her if she was okay and she said she was fine. She agreed with his offer to have coffee. He suggested McDonalds and she said, "yes, lets go". They then walked through Hyde Park towards the corner of Elizabeth and Park Streets. They walked across to Starbucks which is at that intersection. Mary then said she wanted to rest her feet for a few minutes and she sat on a ledge. She lay down. He put his hand on her hip but she brushed his hand away. He then got up to leave but she said that she was only playing and that he did not have to go.

32. The applicant asked her if she would mind if he "felt her up". Her reply was to the effect "that as long as he's gentle and he didn't do anything silly". He then moved his hands down to her groin, after covering the area with his jumper, and began to feel her vagina on the outside. He then asked if she wanted to go somewhere quieter. She got up and the pair then walked across to the park where they went to a grassy area near some hedges. He asked her whether she was sure she wanted to and she responded by laying down, leaning back on her elbows and spreading her legs. She pulled her underwear to one side and he licked her vagina. She suggested that he could have anal intercourse with her.

33. The applicant lowered his trousers to his knees and knelt in front of her. He asked, "can you help me to get it up". She took his penis into her mouth. She suddenly said, "I've had enough". He asked her what was wrong. She got up and said she had to go. He said, "whatever". She said, "it's not you" or "I'm not going to tell anyone". He told her to "piss off".

34. Mary flatly rejected all of the components of this version.

35. It was part of the applicant’s case that Mary was not substantially intoxicated at the time of the incident. Counsel for the applicant asked whether she consumed any further alcohol after she had left the night club and before she arrived at the hospital. She denied it. It was suggested that she was not particularly unsteady on her feet during her interaction with the applicant in the park and that she was exaggerating her level of intoxication at the time but she rejected such suggestions.

Crown arguments to the jury

36. The Crown Prosecutor spent a large part of his closing address to the jury reviewing the evidence, particularly Mary's evidence. Where there were inconsistencies or matters that Mary could not recall he argued that they were not of such significance that the jury would have a reasonable doubt.

37. Anticipating that defence counsel may argue that Mary's level of intoxication had been exaggerated he invited the jury to look at her apparent incapacity in composing the text messages to her friends, describing them as "a bit of gobbledygook". The prosecutor also reminded the jury of the alcohol reading in the blood sample taken at 5.40am. Later in his address he said Mary's intoxication would have been obvious to the accused. He submitted, "the complainant was heavily affected by alcohol, the accused knew it and he just did what he wanted to do. He knew that she was not consenting."

38. It was submitted that the jury would find Mary's account was supported by the evidence of her immediate complaint and her behaviour which was consistent with a person who had been sexually assaulted. Reference was made to the complaint made by text message and phone conversation and then in person to her friend Brooke, the doctor and the police officer at the hospital. The prosecutor also reminded the jury of the evidence of Mary's distressed state as observed by these people.

39. Anticipating what might follow in the address by defence counsel, the prosecutor reminded the jury of the version of events put to Mary in cross-examination which he described as "very odd". For example, the suggestion that Mary would respond to the applicant’s initial question by telling him she was "fine" and then willingly accompany him to Hyde Park and do such things as invite him to penetrate her anally was inconsistent with all of the other evidence about the state Mary was in at the time. The prosecutor submitted that none of this would cause the jury to have a reasonable doubt.

40. The prosecutor then dealt with some discrete aspects of the evidence. He referred to Olivia saying that Mary's account to her had included that there was penile vaginal penetration and reminded the jury that she agreed she could be mistaken about that. He referred to the text message at 1.57am and Mary's evidence that she could not recall sending it. As to the sending of that message, the prosecutor submitted that it "didn't make any sense because at that time she would have been in the car with Brooke". Finally, the prosecutor reminded the jury of Constable Fidow's evidence that Mary had said she had gone home before going to the hospital. He submitted that this was an error in the officer's recollection in circumstances where she had made her statement some nine months after the event.

Defence arguments to the jury

41. After some general observations at the beginning of his closing address, counsel then moved to more substantive matters which were prefaced with the following statement of the general thesis of his submissions:

"Let me make it clear at this stage, insofar as this trial is concerned, I submit to you that you would have significant concerns about the credibility and reliability of the complainant [Mary]."

42. Submissions were made about Count 1. In that context counsel submitted repeatedly that Mary was neither credible nor reliable. He sought to make a number of points including: Mary could not remember the 12.36am telephone conversation with Brooke; she did not mention the incident in Count 1 in the history she gave to Dr Isaacs; and she did not mention it in the brief account she gave to Detective Clegg.

43. Counsel then moved to Counts 2 to 6 and again, repeatedly, submitted that Mary was not credible or reliable in her account of what she said occurred in Hyde Park. Before turning to some specific matters, he submitted that if the jury found that Mary was not credible or reliable in relation to Count 1, this ought to affect the assessment made in relation to the other counts.

44. Submissions were then made about Counts 2 to 6 which included:

• the amount of alcohol Mary had consumed and the degree to which she was intoxicated at the time of the alleged offences, with variations and inconsistencies in the evidence being referred to;

• the text message sent by Mary to Brooke at 1.57am was said to be inexplicable given Mary was in the car sitting beside Brooke at the time;

• asserted inconsistencies in what Mary said on the night about being sick and vomiting when compared to her evidence in the trial;

• an inconsistency between her statement and her evidence about the position of her underpants at the time that anal intercourse was said to have occurred;

• the inconsistency between Mary sending a text message at 1.01am saying she was being raped when compared with her failure to make any such, or similar, complaint to the Maori man sitting on the park bench who she encountered immediately after;

• the medical evidence was said to be equivocal as to whether the sexual contact was consensual or otherwise;

• the CCTV footage available was described as "only very limited";

• the propositions put to, but rejected by, Mary in cross-examination included that she had proposed anal intercourse but the jury was reminded that it had been put positively that anal intercourse never occurred; and

• the DNA match was described as only confirming there was contact between the applicant and Mary.

45. Counsel concluded his address by once again stressing that when the evidence was considered as a whole and Mary's credibility and reliability were analysed there would be a reasonable doubt about the applicant’s guilt in respect of all of the charges.

The applicant’s case on the appeal

46. The overarching theme of the applicant’s proposed appeal is that the verdicts are unreasonable, or cannot be supported, having regard to the evidence: 6(1) of the Criminal Appeal Act 1912 (NSW). The principles relating to the determination of such a ground are well known and are repeatedly set out in judgments of this Court: see, most recently, [Decision Restricted] [2016] NSWCCA 202 at [274]-[277].

47. I can say immediately that upon the evidence presented at trial it was well and truly open to the jury to return verdicts of guilty. While Mary's recollection was impaired in some respects on matters of peripheral detail, she was unshaken as to the essential aspects upon which the jury's satisfaction beyond reasonable doubt depended. Her account was strongly supported by the evidence of her contemporaneous complaints (particularly her text message "I'm being raped help") and her extremely distressed condition in the immediate aftermath. There is force in the Crown's submission that the case against the applicant was "overwhelming". (I note that the primary judge said in the course of sentencing that it was "an overwhelmingly strong Crown case".) The alternative version that was put to the complainant but rejected was, quite frankly, incredible.

48. The applicant endeavoured to raise in this Court a number of matters which were not raised at trial. In effect, he sought to formulate a defence that was quite different. It was to the effect that there had been a "deception" or a "scam" perpetrated by the complainant and her two friends, Brooke and Olivia. In short, as I understand it, he contends that Mary lured him into engaging in sexual activity in Hyde Park for two reasons.

49. First, she was concerned that her friends would react badly to the fact (not supported by any evidence) that she had left the night club in Oxford Street with Olivia's boyfriend and so she needed to create a situation that would divert their attitude to one of concern for her. This was encapsulated in this submission to the Court:

"The scam was that it was a window of opportunity to basically get herself out of a situation where, from her peers from the nightclub in Oxford Street, where she had taken off with someone else's boyfriend. To escape any ridicule from that, she's basically got my DNA, consensually, and then seen a window of opportunity to cry rape."

50. The second basis of the "scam" was described in written submissions as a financial one:

"The evidence, if explained correctly at trial, would overwhelmingly support the accused, that he was subjected to a deception amounting to what is effectively known as a scam in the proceedings.

That it has been instigated by the complainant taking advantage of the judicial system with the support of her two friends acting out as witnesses.

The three witnesses involved in this matter know the legal loop holes of the law well enough to successfully implement a scheme, or a point of deception to go undetected in the proceedings.

But was effectively exploiting the court proceedings inappropriately as a window of opportunity as it arose to pervert the course of justice, be compensation for the reasons of personal gain as their motive."

51. In support of these theories, the applicant raised many arguments that could, but were not presented at trial; evidence that could, but was not adduced; and lines of cross-examination that could, but were not pursued. He also asserts errors on the part of the trial judge and the Crown Prosecutor that were not appropriately addressed by his counsel. He seeks to avoid all of the problems of raising issues in this Court that were not raised in the court below by contending that he was incompetently represented. As a result, there was a miscarriage of justice and he was denied a fair opportunity of being acquitted.

52. On my review of the entire trial transcript I am satisfied that the applicant was very competently represented by Mr Averre, an experienced barrister who, it must be said, was faced with a very difficult task. Mr Averre deposed in an affidavit that he received extensive written instructions from the applicant. He said he was "particularly concerned in representing the appellant as to the risk of breaches of [the rules of evidence and those governing his professional conduct] given the nature of the instructions and that which the appellant wished me to put both to witnesses and to the jury". He particularly referred to Rules 42 and 43 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW):

Independence

42 A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's wishes where practicable.

43 A barrister does not breach the barrister's duty to the client, and will not have failed to give appropriate consideration to the client's or the instructing solicitor's wishes, simply by choosing, contrary to those wishes, to exercise the forensic judgments called for during the case so as to:

(a) confine any hearing to those issues which the barrister believes to be the real issues,

(b) present the client's case as quickly and simply as may be consistent with its robust advancement, or

(c) inform the court of any persuasive authority against the client's case.

53. Mr Averre referred to inconsistency in the instructions received from the applicant as to there having been a "scam". He also referred to there being no evidential foundation and therefore no tenable and responsible basis upon which he could contend that there had been collusion between the complainant and her two friends and that their evidence had been concocted as a result. He was concerned that raising the issue of there having been a "scam" or "deception" could backfire against his client's interests. The applicant asked him why and he explained:

"Because your instructions to me, and I understand you may not agree with that, but I have them written down, is that you instructed me that the complainant's motivation prior to going into the park was to get your DNA first … And so in some way you were suggesting that she'd set out before she'd even met you to obtain DNA … And that she was being discrete in sending text messages to her friends because she didn't want you to know that she was texting them and saying that she was being raped, and I thought that those instructions were dangerous to pursue with a witness because they had an air of unreality which a jury wouldn't accept."

54. In my view (and with respect), Mr Averre exercised appropriate professional forensic judgment. The applicant’s contention that there was a conspiracy to deceive and to pervert the course of justice did not have any evidentiary foundation. There was no difference in the case that he sought to present in this Court.

55. I have considered all that the applicant has said in writing and at the hearing. There is a lot of speculation which can be immediately put aside. As to the balance, I do not propose to address the countless points of contention he has raised. At best, they do not have the significance he claims. (For example, the CCTV footage reveals the complainant was not intoxicated as she claimed - certainly, Mary is not shown to be stumbling or falling over but that does not mean that she was not intoxicated. In any event, that part of the footage in which she appears is quite brief.) At their worst, the points are simply wrong. (For example, there was a miscarriage of justice because the Crown Prosecutor "ruled out" the 1.57am text message as irrelevant and defence counsel failed to object. In fact, the prosecutor simply submitted to the jury that it did not make sense.)

Conclusion

56. The applicant explained the delay in filing his appeal papers was for reasons of matters beyond his control. I am prepared to accept that. The delay was not great and so I propose that an extension of time be granted.

57. Given he has endeavoured to pursue his appeal without legal representation it is understandable, to some extent, that the submissions have suffered from various shortcomings. There should be a grant of leave to appeal against conviction but the appeal must be dismissed.

Appeal against sentence

58. No submissions were made, either in writing or orally, in relation to the application for leave to appeal against sentence. No grounds of appeal were formulated either.

59. The indecent assault offences were contrary to s 61L which prescribes a maximum penalty of 5 years imprisonment. For the sexual intercourse without consent offences, s 61I prescribes a maximum penalty of imprisonment for 14 years and there is also a standard non-parole period of 7 years.

60. The applicant terminated the services of his lawyers whilst the jury were deliberating upon their verdicts. (He complained that the trial judge did not grant his request to further address the jury but there is no substance in this.) He chose to represent himself in the sentence proceedings but his submissions were largely occupied with complaints about the jury's verdicts.

61. The learned judge carefully reviewed the material that was before him in a detailed sentencing judgment. He made assessments that the objective seriousness of the indecent assault offences were "towards the lower end of the range" (Count 1), "just below the midrange" (Count 2) and "above the midrange" (Count 4). The sexual assault offences were found to be "well above the midrange" (Count 6), "less serious [but] still a very serious offence" (Count 3) and "less serious than the anal intercourse" (Count 5).

62. Overall, the judge found that the applicant "was motivated by his own sexual gratification and had no regard to the discomfort and humiliation he was causing to the victim". He added that "he took advantage of the fact that she was vulnerable as a result of her obvious state of intoxication and … his behaviour was predatory".

63. The applicant has a criminal history of some significance. He spent time in juvenile detention facilities from the age of 14. His first experience of custody as an adult came at the age of 20 with a three month term of imprisonment. In 1994 he was sentenced to a total of 6 years with a minimum term of 3 years. That sentence arose from the applicant entering a private dwelling and sexually assaulting a five-year old girl while her parents slept nearby. He ended up serving almost the entire sentence after twice breaching his parole soon after having been released.

64. In 2007 he was sentenced to 5 years with a non-parole period of 3 years 9 months for maliciously inflicting grievous bodily harm with intent. He served the entire term without parole being granted. While on bail for that offence he committed an offence of "convicted child sexual offender loiter near public place" for which he received a 3 month sentence.

65. The judge referred to the applicant having derived from a dysfunctional family. His parents separated early in his life and he was moved around between his parents and various institutions. From the age of 14 years he lived in "squats" and was on unemployment benefits. The judge accepted that he had not been provided with the direction from parents that would have taught him the skills to exercise judgment. His Honour said, "he has been neglected and failed by those persons who should have been able to give him that foundation".

66. The judge noted a history of illicit drug use from an early age but said that drugs had ceased to be a problem in his life from the early-mid 1990s. A 1994 report included that the applicant suffered from schizophrenia but prison medical records indicated that this did not seem to have warranted any medication or treatment. A psychiatric report prepared in 1998 included that "there is clear evidence of an antisocial personality disorder that needs to be assessed by a community based sex offender's program". Another report indicated that the applicant refused to attend such a program.

67. The judge also reviewed a number of physical conditions disclosed by the medical records but there did not seem to be anything of great moment in terms of enduring difficulties. Certain conditions complained of by the applicant in his oral address were not supported by the records.

68. It was accepted that the applicant was "a reasonably isolated person and he has had difficulty getting employment as a result of his past convictions". The judge noted that his elderly mother was in poor health and that the applicant had been acting as her carer before being incarcerated after his arrest for the present matters.

69. The judge found that the applicant was not remorseful; he did not accept responsibility for his actions; he is not a person of good character; his likelihood of re-offending was high; and his prospects of rehabilitation were very poor. He said that general and specific deterrence, punishment, retribution and protection of the community were purposes of sentencing that prevailed over the need for rehabilitation.

70. Finally, the judge considered whether there were special circumstances for reducing the proportion of the sentence represented by the non-parole period, notwithstanding no such submission had been made. He concluded that there were not.

71. I have earlier mentioned that the judge imposed an aggregate sentence of 11 years with a non-parole period of 8 years 3 months. He said that he would otherwise have imposed sentences of 9 months, 12 months and 15 months for the indecent assault offences in Counts 1, 2 and 4 respectively. He would have imposed sentences of 6 years (with a non-parole period of 4 years 6 months), 5 years (with a non-parole period of 3 years 9 months) and 8 years (with a non-parole period of 6 years) for the sexual assault offences in Counts 3, 5 and 6 respectively.

72. I am unable to identify any specific error in the sentencing judgment and nor am I able to characterise the sentence as manifestly excessive. The indicative sentences and the aggregate term are all well within the range of a legitimate exercise of the sentencing discretion.

Orders

73. I propose the following orders:

1.   Extend time for the filing of the Application for Leave to Appeal to 1 July 2016.

2.   Grant leave to appeal against both conviction and sentence.

3.   Dismiss the appeal.

74. SCHMIDT J: I agree with the reasons given and orders proposed by R A Hulme J in relation to both the conviction and sentence appeals.

75. Like R A Hulme J, I have read and considered the handwritten documents filed by the applicant in light of the extensive oral submissions which he advanced at the hearing, the evidence then given by his former counsel Mr Averre, the transcript of the trial and the exhibits tendered; and in respect of the sentence appeal, Hanley DCJ's sentencing remarks and the exhibits tendered on sentence.

76. Like his Honour, I consider that the applicant was competently represented at trial. That was undoubtedly a most difficult task, given the considerable strength of the Crown case and the contradictory instructions which the applicant gave Mr Averre, some of which would have been positively damaging to his defence, had they been pursued as the applicant contended on appeal that they ought to have been.

77. Some of the matters which the applicant sought to advance on appeal could only have been advanced, had he given evidence. Having elected not to do so, on appeal he cannot complain of the consequences of his decision. The basis of his view that he was the victim of a scam is baseless speculation, resting almost entirely on matters not within his own knowledge. In so far as it rested on matters which he claims were within his knowledge, he had to give evidence at the trial, in order to be able to rely on that knowledge.

78. The applicant dismissed his legal representatives after the parties had addressed the jury, his Honour had summed up, and the jury had retired to consider its verdict. His application then that he be given a further opportunity himself to address the jury, was being made when his Honour received a note from the jury, advising that it had reached a verdict. There was no error in the applicant then being refused the opportunity to further address the jury.

79. Even if he had been given an opportunity to advance the incoherent, contradictory and irrational case which he advanced on appeal, during which he made various admissions adverse to his defence, he would undoubtedly still have been convicted on the evidence which it was open to the jury to accept.

80. In the result I agree that the case which the applicant advanced on the appeals must fail.

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Decision last updated: 09 December 2016