RWB v R - [2010] NSWCCA 147

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
RWB v R; R v RWB [2010] NSWCCA 147

FILE NUMBER(S):
2009/7013

HEARING DATE(S):
31 May 2010

JUDGMENT DATE:
12 July 2010

PARTIES:
RWB (Appellant/Respondent)
Regina (Respondent/Appellant)

JUDGMENT OF:
Simpson J Johnson J McCallum J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/7013

LOWER COURT JUDICIAL OFFICER:
Madgwick ADCJ

LOWER COURT DATE OF DECISION:
4 December 2009

COUNSEL:
J Dwyer (Appellant/Respondent)
R J Button SC (Respondent/Appellant)

SOLICITORS:
S O'Connor (Legal Aid Commission) (Appellant/Respondent)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent/Appellant)

CATCHWORDS:
CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse with child under 10 years – inciting an act of indecency by person under 16 years – assault with act of indecency on person under 10 years
CRIMINAL LAW – appeal against conviction – procedure – directions to jury – definition of “beyond reasonable doubt” – circumstances permitting expansion of “beyond reasonable doubt” direction do not arise – no miscarriage of justice – submission to jury by Crown prosecutor – Browne v Dunn – submission adopted by trial judge – caution should be exercised in directions to jury concerning failure of accused’s counsel to comply with rule in Browne v Dunn – practical effect of direction – no miscarriage of justice
CRIMINAL LAW – procedure – r 4 Criminal Appeal Rules – directions the subject of the grounds of appeal not objected to at trial – grounds ought to be determined on their merits – grounds of appeal do not involve “question of law alone” – leave required – s 5(1)(b) Criminal Appeal Act – Rasic v R – leave granted – application of proviso – s 6 Criminal Appeal Act – assessment of evidence in accordance with Weiss v R – no substantial miscarriage of justice in conviction of appellant – errors established did not impact upon correct verdict – appeal against conviction dismissed
CRIMINAL LAW – Crown appeal – error in failing to impose sentences in accordance with Pearce v The Queen – sentencing under past sentencing patterns – care must be taken not to evaluate sentences by reference to current expectations – some sentences imposed failed to reflect criminality and objective gravity of offences – error in taking into account circumstances of hardship in appellant’s custody – failure to accumulate – aggregate sentence also manifestly inadequate – sentences quashed, appellant re-sentenced

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules

CATEGORY:
Principal judgment

CASES CITED:
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Brown v The King [1913] HCA 70; 17 CLR 570
Browne v Dunn (1893) 6 R 67
Clinton v R [2009] NSWCCA 276
Dawson v The Queen [1961] HCA 74; 106 CLR 1
Fina’i v R [2006] NSWCCA 134
Green v The Queen [1971] HCA 55; 126 CLR 28
Keil v The Queen (1979) 53 ALJR 525
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Abdallah [2001] NSWCCA 506; 127 A Crim 46
R v Birks (1990) 19 NSWLR 677
R v Chami (and others) [2004] NSWCCA 36
R v Davis [1999] NSWCCA 15
R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
R v EGC [2005] NSWCCA 392
R v Henning (and others) (NSWCCA, 11 May 1990, unreported)
R v KSF (NSWCCA, 10 September 1992, unreported)
R v Li [2003] NSWCCA 386; 140 A Crim R 288
R v Manunta (1989) 54 SASR 17
R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
R v Neilan [1992] 1 VR 57
R v Southammavong; R v Sihavong [2003] NSWCCA 312
R v Sterne, Surrey Summer Assizes 1843, MS
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Rasic v R [2009] NSWCCA 202
The Queen v Sarath Hettiarachchi; Director of Public Prosecutions v Sarath Hettiarachchi [2009] VSCA 270
Thomas v The Queen [1960] HCA 2; 102 CLR 584
Weiss v R [2005] HCA 81; 224 CLR 300

TEXTS CITED:

DECISION:
(i) Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912, leave be granted to appeal against each conviction; (ii) Appeal against conviction dismissed; (iii) Crown appeal allowed, sentences quashed; (iv) Appellant re-sentenced.

PUBLICATION RESTRICTION:
Non publication of any information or material that may lead to the identification of the complainant (s 15A Children (Criminal Proceedings) Act 1987)

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/7013
SIMPSON J
JOHNSON J
McCALLUM J
12 July 2010

RWB v R
R v RWB

Judgment

SIMPSON J: The appellant appeals against his conviction, on 4 December 2009, following a jury trial in the District Court, of 12 out of 14 counts on an indictment. All counts involved allegations of sexual offences against the same victim. Ten of the counts on the indictment (including two on which he was acquitted) were of sexual intercourse with a child under the age of 10 years (Crimes Act 1900, s 66A); one was of inciting an act of indecency by a person under the age of 16 years (Crimes Act s 61E(2) and s 61N), and three were of assault with an act of indecency on a person under the age of 10 years (Crimes Act s 61E(1) and s 61M(2)). All offences were alleged to have been committed between January 1990 and April 1991. The statutory provisions to which I have referred are those that were in operation at the time the offences were alleged to have been committed.
Also before the Court is a Crown appeal against what is asserted to be the inadequacy of the sentences subsequently imposed.
Having regard to the grounds of the conviction appeal, it is not necessary at this stage to detail the offences individually. I will do that when I come to deal with the Crown appeal. For present purposes, it is sufficient to say that the evidence disclosed a continuing course of sexual molestation of the complainant by the appellant.

The trial commenced on 1 December 2009. The complainant gave evidence. The complainant is the niece of the appellant (he is her mother’s brother). The complainant was born in November 1983 and was 6 years of age at the beginning of the period covered by the charges in the indictment. She lived in a Sydney suburb with her parents, her maternal grandparents, and her two brothers.
It was upon the complainant’s evidence that the Crown case depended. Her evidence was that the appellant had ready access to the house, and was a frequent visitor. She outlined a series of events and conduct by the appellant which, if accepted by the jury (as, by the verdicts, with two exceptions, it was) constituted the offences charged. The appellant also gave evidence. He denied all of the allegations made against him. At the conclusion of the evidence, both counsel and the judge agreed that there was no evidence to support count 6, and that the jury ought to be directed to return a verdict of not guilty in respect of that count. This was, in due course, done. Eventually, the jury returned a verdict of not guilty, as directed, with respect to count 6, a verdict of not guilty with respect to count 9, and verdicts of guilty on all other counts.
In his evidence in chief the appellant described the sleeping arrangements in the house. He said that, on a couple of occasions, he had seen the complainant asleep in a single bed with her father. This was when she was five or six years of age. He then said that this was a “regular” occurrence. That was where the matter was left in his evidence in chief. (The complainant had already given evidence that, on occasions, her father stayed in bed with her until she fell asleep. This was because she was frightened, more so after the conduct the subject of the charges began.) In cross-examination, the appellant repeated this evidence. He said that his mother (the complainant’s grandmother) said “that’s not right”, referring to the complainant’s father occupying the same bed as his daughter. He described an occasion on which, he said, the complainant’s father, whilst sitting on a single bed, put his legs on the floor while the complainant stood in front of him, wearing underwear. He said that her father grabbed her and gave her a cuddle, exposed the cheeks of her bottom by pulling up her underwear, and began to pat her on the bottom. That such an event occurred had not been put to the complainant.
When challenged about this (the clear suggestion being that he had fabricated this part of his evidence) the appellant said that he also (like his mother) had spoken to the complainant’s father, telling him that what he was doing was “not right”, and that his (the appellant’s) mother was entitled to intervene. He claimed that he had told his own brother about this. The manner in which this evidence was treated gave rise to the second ground of appeal.
On the occasion of this event, the appellant said, his mother again intervened and said “that’s not right” and “you shouldn’t be doing that”.
The appellant denied that, by this evidence, he was attempting to suggest that it was the complainant’s father who was the perpetrator of the sexual misconduct. Indeed, in his evidence with respect to these matters, the appellant quite often seemed to be more focussed upon the manner in which he claimed the complainant’s father responded to intervention by the complainant’s grandmother.
The evidence in the trial concluded on the second day. On the third day counsel addressed and the judge summed up. The jury retired at about 3.30pm on that day. At the request of counsel, the judge recalled the jury to give further directions. The jury requested a copy of the transcript. This was prepared overnight and provided to the jury early the following morning. The jury retired again, and returned with verdicts at 12.30pm.
Two grounds of appeal against conviction are pleaded. They are:
“1. The trial judge misdirected the jury by defining the phrase ‘beyond reasonable doubt’.
2.The combined effect of the submissions of the Crown prosecutor and the directions of the trial judge about Browne v Dunn [(1893) 6 R 67] constitute a miscarriage of justice.”
In the case of neither direction was any complaint or re-direction sought by counsel for the appellant. Leave pursuant to r 4 of the Criminal Appeal Rules is required if the grounds are to be permitted to be argued.
Ground 1: directions concerning the standard of proof
Initially, his Honour gave fairly conventional directions concerning the burden and standard of proof. This occurred early in the summing up, at pp 6-8.
Later, at p 18, his Honour invited the jury, if they saw fit, to seek elaboration or repetition of any direction he had given. He followed that by saying this:
“There is one exception to that. In my experience nothing troubles juries as much as the idea of what is a reasonable doubt. I can tell you now that it is no good asking me to explain to you in greater terms or in more detail what a reasonable doubt is, or what the concept means. The highest court in the country has said that the phrase ‘beyond reasonable doubt’ consists of ordinary English words and juries are perfectly able to understand what they mean. My own feeling is it would have been useful had the court had a bit more experience with juries, because as I have said to you people do tend to have some trouble with it.
What it comes down to is this: if you do not have any doubt, well you do not have any doubt. If you have got some doubt and you are not sure whether it is reasonable, then you test it this way; if you then think that it is reasonable yourselves or yourself then it is reasonable. If you think it is not, then it is not. If you think it is just a fanciful or merely theoretical doubt that you would not personally call reasonable yourself, then it is not a reasonable doubt. Now there is no more that I can tell you about that aspect of it.”
Just what a trial judge should, or is entitled or permitted to, say to a jury concerning the standard of proof is something that has exercised the minds of many an appellate court. Consideration of this subject matter goes back at least to 1913: Brown v The King [1913] HCA 70; 17 CLR 570. In that case, Barton ACJ said:
“I fully recognize that one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury without embellishment as a well understood expression. Had his Honor so left it, neither the present objection nor any other could have been taken to his direction in this regard.” (p 584)
Isaacs and Powers JJ said:
“The words ‘reasonable doubt’ are in themselves so far self-explanatory that no further explanation is considered strictly necessary. Usually attempts to elucidate them do not add to their clearness.”
Doubt is doubt, and reasonable is reasonable having regard to the circumstances.” (p 594)
The direction in question in that case was:
“If you have a reasonable doubt in that matter and you do not know where the truth lies, then you will find a verdict for the accused. A reasonable doubt, as I have already remarked, means a doubt such as would influence you in the ordinary affairs of life.”
It was this direction that all three members of the Court who passed upon this ground held caused a miscarriage of justice.
Interestingly enough, all seemed to endorse the concept that proof beyond reasonable doubt amounted to:
“… such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt.”
This passage was drawn from the words of Parke B in R v Sterne, Surrey Summer Assizes 1843, MS, quoted in Best on Evidence, 9th ed, p 79.
None of the judges in Brown went so far as to state that a jury should be instructed in those terms. Having regard to subsequent decisions, it would be unwise so to direct a jury.
The High Court returned to the subject in Thomas v The Queen [1960] HCA 2; 102 CLR 584. McTiernan J said:
“The question whether a direction regarding the onus of proof is proper is not a purely verbal one. It is a question whether what the jury is told means that they must be satisfied beyond any reasonable doubt that the accused is guilty. But there is a danger in venturing upon a novel elucidation of this principle of the criminal law.” (p 587)
Windeyer J said that it was not the jury’s task to “analyse their own mental processes”. (p 606)
The direction under consideration in that case was:
“There is no particular magic about the way you've got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion - you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply with the various verdicts which I have indicated to you …” (pp 586-587)
Windeyer J also “deprecated” the use of the words “comfortably satisfied”. (p 608)
All members of the Court held that the direction was incorrect, and incorrect in such a way as to warrant the setting aside of the conviction and the ordering of a new trial. The particular aspects of the direction found to be erroneous were the proposition that “no particular magic” was required, that the jury were not bound by any “special rules”, and that they should approach the question in the way they would consider the more serious matters that arose in their daily lives; and, principally, that a “feeling of comfortable satisfaction that the accused was guilty” was adequate for conviction.
In Dawson v The Queen [1961] HCA 74; 106 CLR 1, Dixon CJ said:
“… it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions.” (p 18)
His Honour referred to Thomas. Dawson was a case in which the transcript was, apparently, not available, and only some form of report of what he was claimed to have said was before the court. It is therefore not possible to know the precise words that were the subject of the Chief Justice’s censure.
Although, in that case, the conviction was quashed and a new trial ordered, that was on different grounds.
In Green v The Queen [1971] HCA 55; 126 CLR 28 the trial judge gave a lengthy disquisition on the meaning of the words “beyond reasonable doubt”. The High Court cited Thomas, including the caution of McTiernan J quoted above, and the passage from Dawson, also quoted above.
The Court concluded:
“Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown.” (p 32)
The direction given was held to have been confusing and incorrect. The Court emphasised that:
“a reasonable doubt is a doubt which the particular jury entertains in the circumstances”,
and that members of the jury:
“themselves set the standard of what is reasonable in the circumstances.”
The Court adopted the statement of Windeyer J, in Thomas, that it is not the task of the jury to analyse their own thought processes.
The Court also frowned upon a part of the direction that suggested that “a comfortable satisfaction” of the accused’s guilt would be sufficient to warrant conviction.
By reason of the excursus into the meaning of “beyond reasonable doubt”, the Court held, a new trial must be ordered.
In 1979 the High Court again repeated the admonition to avoid explanation of the concept of “beyond reasonable doubt”. In Keil v The Queen, noted in (1979) 53 ALJR 525, the Court (Barwick CJ, Gibbs, Stephen, Mason and Murphy JJ) refused special leave to appeal but reiterated:
“… the traditional formula that all relevant matters are proved beyond reasonable doubt is adequate; it does not need embellishment or explanation.”
The matter has come before this Court on a number of occasions. In R v Henning (and others) (NSWCCA, 11 May 1990, unreported), this Court, constituted by Gleeson CJ, Campbell and Mathews JJ, referred to Green, saying that in that case:
“… it was emphasised that any attempt to go beyond the classic statement as to the nature of the onus of proof is fraught with danger. It is, moreover, an exercise in futility to attempt to explain that which requires no explanation. In the years since Green, a number of judgments of this Court have repeated the admonition. In a number of cases the attempts of trial judges to explain what is meant by ‘beyond reasonable doubt’ have led to the quashing of convictions.
… as Roden J said in R v Blanch (CCA 17 August 1988) it does not really help the jury to understand the meaning of ‘beyond reasonable doubt’ to tell them what it does not mean.” (p 53)
The direction in Henning included an illustration in which a jigsaw puzzle was used as an analogy. The trial judge likened the Crown opening to the picture on the outside of the box, and the pieces of evidence in the case to the jigsaw pieces inside. He told the jury that the task of the Crown was to place the pieces all together, so that the “unmistakable picture” emerges. If inessential pieces remained missing, then it did not matter so long as the “unmistakable picture” emerged. He then said:
“On the other hand, if the pieces that are missing are essential to establishing quite unequivocally the unmistakable picture then proof has not been achieved.”
Notwithstanding this Court’s adverse view of the direction, and the fact that it allowed the appeal on other grounds, it would not have quashed the convictions on the basis of that direction. (p 54)
In R v Chami (and others) [2004] NSWCCA 36, the jury was given a written direction which included:
“The expression ‘beyond reasonable doubt’ means what it says. It is the highest level of proof in our system of law. Each of you as jurors knows the meaning of this expression.” ([210])

In oral directions, his Honour directed the jury as to their role and function, and told them that what they had to be satisfied of, beyond reasonable doubt, were the actual ingredients of each offence. He added:
“If you have a doubt and it is based on reason then you should give the benefit of that doubt to the accused person …
‘Beyond reasonable doubt’ is an expression meaning what it says. It is the highest form of proof known to the law. It does not mean ‘beyond reasonable doubt to the point of certainty’. It means ‘beyond reasonable doubt’ it means what it says. ‘Beyond reasonable doubt’, any doubt that is in fact reasonable.” (bold in original ie in CCA judgment) ([211])
In effect, in Chami, the Court held that the directions ought not to have been given. But, as in Henning, it held that the trial had not miscarried on this account ([229]).
The Court in Chami referred to R v Li [2003] NSWCCA 386; 140 A Crim R 288 in which a direction that had included:
“If there is a doubt in your mind, and it’s a reasonable one”
and:
“A doubt based on reason”
was held to have been a misdirection. Dunford J, with whom Spigelman CJ and Hidden J agreed, said that the direction was “incorrect, inappropriate and should not have been given in those terms”.
In Li, a new trial was ordered. However, the ground of appeal was complicated because the trial judge had also told the jury that if they could not be sure that what the complainant said was true, or what the accused said was true, they must acquit, thus setting up the case of the accused against the case for the Crown. It is not clear that, had the second error not occurred, the first would have been sufficient to warrant quashing the convictions.
In R v Neilan [1992] 1 VR 57, the Victorian Court of Criminal Appeal frowned upon a judge advising a jury in such a way as to suggest a two-stage process, of considering first whether they had a doubt, and second, whether (if they did) it was a reasonable one (p 71). Their Honours held that it was “undesirable” to distinguish between a doubt and its reasonableness (the precise direction given to the jury the subject of complaint in Neilan does not appear from the report).
In Victoria, the issue has recently been considered by the Court of Appeal in The Queen v Sarath Hettiarachchi; Director of Public Prosecutions v Sarath Hettiarachchi [2009] VSCA 270. The Court (Nettle and Weinberg JJA and Hollingworth AJA), in a joint judgment, examined the history of decisions concerning directions on this subject matter. There, the trial judge had told the jury that:
“‘Beyond reasonable doubt’ does not mean fanciful but just beyond reasonable doubt.”
Having examined the authorities, their Honours re-stated that the law is that a trial judge should not attempt to explain or define “reasonable doubt”, and held that it had been an error for the trial judge to refer to “fanciful” in the way that had been done. Having regard to the whole of the summing up, however, the Court considered that the jury could have been under no misapprehension as to the nature of their task, and rejected the ground of appeal based upon the direction.
These authorities persuade me, if I were not already persuaded, that the direction given by the trial judge in this case ought not to have been given. I would add my voice to the chorus that has urged trial judges to avoid the temptation to embark upon an explanation of the well known concept of “beyond reasonable doubt”.
There are some limited exceptions to the total prohibition on expanding upon the formulaic direction.
The first is where counsel’s address is such as to call for some remediation: see Thomas, at 605; Green at 33; Hettiarachchi at [53]; Keil. That was not so in the present case. The second is where (as was anticipated by the present trial judge) the jury seeks additional assistance. This circumstance arose in R v Southammavong; R v Sihavong [2003] NSWCCA 312. There the trial judge had given a direction in the following terms:
“The words ‘beyond reasonable doubt’ are ordinary everyday words and that is how you should understand them.”
The jury asked for further clarification:
“… around what a reasonable doubt means, ie. is it our own individual view, or is there a more independent definition?”
After discussion with counsel, the trial judge repeated his original direction.
This Court rejected a submission that the phrase “ordinary everyday words” constituted a misdirection in that it could be understood by a jury to cut down in some way the standard of proof.
The Court accepted a further submission that in the light of the jury’s question, it was at least permissible for the trial judge to have explained that what was a reasonable doubt was a matter for the jury, but held, further, that in the circumstances that appertained, the failure to do so did not give rise to a miscarriage of justice.
This circumstance also did not arise in this case.
Other than in those two circumstances, trial judges ought to heed the repeated warnings of appellate courts against embarking upon an explanation or definition of words which are well known in the community.
The question then is what ought to be done about this ground of appeal.
In my opinion, the direction to the jury to test whether any doubt that it might have had was reasonable by asking whether it was reasonable, or whether it was fanciful or theoretical, did two things. It invited the jury to analyse their own thought processes; and it invited them to undertake a two-stage process. This was a rather dangerous course to take, and contrary to authority.
Counsel for the Crown concedes that the elucidation of the concept went:
“… somewhat beyond what has been considered to be appropriate.”
She argued, however, that it did not, in the circumstances of the case, result in a miscarriage of justice. She relied heavily upon the jury acquittal of the appellant in respect of count 9, arguing that this demonstrated that the jury was not misled, and applied the correct standard of proof despite the unnecessary elaboration.
It is not every case in which the strictures of appellate courts have gone unheeded that will result in a conclusion that the transgression has given rise to a miscarriage of justice. Keil, Henning, Chami, and Hettiarachchi are instances of trials in which the directions were held to exceed proper bounds, but not to have resulted in a miscarriage of justice. In my opinion, this is another such case. The direction was very far from the lengthy and rambling direction in Green, and did not have the effect of diminishing the standard of proof by referring, for example, to “comfortable satisfaction”. It was similar to that used in Hettiarachchi, and which was held by the Victorian Court of Appeal not to call for the quashing of the conviction. In my opinion, the same result ought to follow in this case.
Contrary to authority as it was, the direction did not result in a miscarriage of justice.
I would reject this ground of appeal.
Ground 2
This ground of appeal raised the combined effect of one part of the address of the Crown prosecutor, and directions given to the jury by his Honour, concerning the appellant’s evidence both in chief and in cross-examination, suggesting that the complainant had been sexually molested by her father. I have already referred briefly to the cross-examination of the appellant in this respect.
In final address, the Crown prosecutor said:
“In any event, by the time that [the appellant] had got into the box there was now not only a suggestion or evidence that they had slept in bed together but now it had become they had slept in bed together and that he had seen [the complainant’s father] stand [the complainant] between his legs when she got out of bed and pulled down her underpants, give her what is commonly referred to as a wedgy and then start rubbing her bottom.
We don’t hear that until he gets into the witness box. That was never suggested in cross-examination that that had occurred. It’s up to you whether you accept [the appellant] as someone who was telling the truth or whether you think that the evidence he was giving in respect to that, for example, by saying those things, whether he was trying to imply or trying to suggest to you that it was not him that had done these things to [the complainant] but perhaps it was the father that had done these things to [the complainant]. It’s up to you whether you think that he was making that up, making it up as he was going along to try and deflect attention from him and trying to direct blame towards somebody else. In other words, trying to blame somebody else to try and protect himself or distance himself from the events.”
The trial judge took this up towards the end of the summing up. He said, referring to the Crown address:
“He [the Crown prosecutor] said the story about [the complainant’s] father is really just an unreliable suggestion to deflect blame from himself. He said that [the complainant] was cross-examined by [counsel for the appellant] with some ability for some time but she never asks [the complainant] whether her father had done such a thing to her. Members of the jury, the significance of that is this, counsel are not just allowed to ask things at large in cross-examining. You hear, both the Crown and [defence counsel] say, ‘did you put that to so and so?’ The significance of that is, counsel are supposed to put adverse suggestions to witnesses so they have a chance to deal with them and you would assume that both counsel behaved ethically in this matter. I have no criticism of their ethics. The significance of [defence counsel] not suggesting to [the complainant] that it was the father who had done something amiss with his own daughter and her bottom, is that she was under a duty, if the accused had told her about this incident to put that. You could conclude that [defence counsel] had not been told that by the accused and there was no explanation sought from the accused in re-examination as to any matter of that kind.
Again, the Crown concedes that the direction exceeded proper bounds. Whether it was so excessive as to call for the quashing of the convictions remains to be considered. Although all of what was said by his Honour was said in the context of reviewing the Crown’s address, the judge did not distance himself from the submission, and he deflected from the course of the review of the Crown submissions to add his own endorsement, giving it the weight of judicial authority.
The course of the trial
Consideration of this ground calls for a more comprehensive analysis of the course that the trial took, and of the evidence.
The complainant’s evidence
The complainant gave a more or less chronological account of the activities of the appellant of which she complained.
It is of some interest to note here that, in relation to the events the subject of count 9 (a charge of sexual intercourse of which the appellant was acquitted by jury verdict) she said that, after other offences had occurred, the appellant “started to jump into bed with me”. The first time that this occurred she had been asleep, it was dark, and she felt the blanket being pulled back from her; she was facing a wall or a cupboard, and the appellant jumped into bed with her and cuddled up behind her; he kissed her neck and cheek, slid his arm under her, digitally penetrated her vagina, and rubbed his penis “near [her] bum”.
Although she said that she knew it was the appellant because of the smell of cigarettes and alcohol, she did not say that she had seen the face or body of the perpetrator of this offence. It was generally accepted that this explains the acquittal on this count. In his sentencing remarks, the judge observed that, in this verdict, the jury “clearly … applied a very high standard against the Crown”.
It is also of some interest to note the strategy adopted by and on behalf of the appellant at the trial. It was never put to the complainant that the incidents she alleged had not occurred.
Counsel sought to raise suspicion, not only that the perpetrator was not the appellant, but that it was, in fact, the complaint’s father. Counsel did this by suggesting that, on occasions, the complainant would lie in or on a single bed with her father. The complainant readily acknowledged that this was so, saying that, particularly after the offences began, she was afraid to be alone in the dark, and her father would remain with her until she had gone to sleep.
At one point in her evidence in chief the complainant said that, on one occasion, the appellant pulled his shorts across his body, exposing his genitals. Defence counsel therefore asked if her father wore shorts, to which she assented. Counsel then suggested that the appellant never wore shorts, but always wore long pants. The complainant agreed that he did, most of the time, but she said that he also wore shorts. All of this was designed, subtly, to eliminate the appellant as the perpetrator and implicate the complainant’s father.
Other questions were asked about similarities, and differences, between the physical characteristics of the complainant’s father and the appellant.
The complainant had said, more than once, that when the appellant committed the offences, he smelt of cigarettes and alcohol. Counsel therefore sought to establish that her father also consumed alcohol and smoked cigarettes. The complainant agreed that he consumed alcohol occasionally, and that he smoked cigarettes. This was designed to lay a foundation for suspicion that the perpetrator of the offences was the complainant’s father. Notably, that was never directly put to her. One might speculate that this was because counsel was well aware that her instructions did not permit her to make such an accusation. It may also have been because, to make such a suggestion, in terms, would have been likely to have resulted in the complainant’s father being called to give evidence.
At the end of the cross-examination it was put directly to the complainant that the appellant had never done any of the things she alleged. She maintained that he had.
The appellant’s evidence
The principal evidence given by the appellant was a denial of all of the allegations made by the complainant.
At one point, in his evidence in chief, he described having seen the complainant and her father sleeping in a single bed, when she was a young girl. He said this was a regular occurrence.
He said, in cross-examination, that his mother had commented that “that’s not right” about this sleeping arrangement.
The appellant was then cross-examined about whether he had ever told anybody else about this. He said he had, he had told his older brother. He also said that he had spoken to the complainant’s father. When asked precisely what he had said to the complainant’s father he began by saying:
“To be descriptive about it ---”
He was cut off by the Crown prosecutor who told him he did not want him to be descriptive, but to say what the conversation was. His answer was:
“I want to be descriptive about it so that you understand. I was sitting at the table with my mother having a cup of tea, [the complainant’s father] has put his legs on the floor on that single bed. His girl [the complainant] gets out of the bed, stands in front him. At this stage she’s wearing a pair of panties. He’s grabbed her and given her a cuddle and grabbed these panties and pulled them up the cheeks of her backside and begun to pat her on the bottom. My mother said to [the complainant’s father], that’s not right, you shouldn’t be doing that. His response was ‘mind your own business’, and my response was ‘don’t talk to Mum like that’.”
There was then other cross-examination, after which it was suggested to the appellant that he was attempting to implicate the complainant’s father. He said:
“I’m not suggesting anything.”
The question was repeated (in substance) and the appellant repeated that he was not suggesting anything.
It was then put to him that he had never mentioned anything about seeing the complainant’s father touch her bottom. He said he had. He said:
“No, that’s not right and I have, I have spoken of this incident and I have spoken of the reason why [the complainant’s father] cursed my mother and I’ll continue to do so because it’s the truth. It was on a visit when I seen my mother.”
It was then put by the Crown prosecutor to the appellant that what he was saying was “all lies”. He denied that.
That was the conclusion of the evidence.
* * *
The Crown prosecutor addressed; defence counsel addressed. At an early stage in the defence address, counsel said:
“It will be my submission to you, members of the jury, and it will come as no surprise to you, that ultimately you could not be satisfied beyond reasonable doubt that the Crown has proved its case. It has not and it was never suggested to [the complainant] that certain things never occurred to her. What it was suggested during the course of the trial was that it was not [the appellant] who committed the acts that have been alleged against him. It was suggested to [the complainant] that it was not [the appellant] who perpetrated these acts against her and towards her. He was not the person committing them.”
It is to be observed that counsel stopped short of suggesting any impropriety on the part of the complainant’s father. She made no suggestion, veiled or otherwise, that it was he who had perpetrated the offences on her.
Counsel then went on to deal with the submission made to the jury by the Crown prosecutor that the appellant had sought to deflect the blame from himself on to the complainant’s father. As I read the address, the point she sought to make was that, if he had done so, the appellant would have gone further than the veiled suggestions that were made.
The judge then summed up. The summing up included the passage I have extracted above at [65]. It was that passage, together with what had been said to the jury by the Crown prosecutor, that gives rise to the present ground of appeal.
The complaint derives from the ancient rule in Browne v Dunn (1893) 6 R 67. Lord Herschell LC formulated the rule as:
“… where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit … If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him … It will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”
Lord Halsbury and Lord Morris spoke to similar effect.
Much has been written in more than a century since the rule was pronounced. A comprehensive analysis of the rule and its application in particular circumstances was undertaken by Hunt J (as he then was) in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 (at 16). A similar exercise was undertaken by Legoe J in the Full Court of the Supreme Court of South Australia in R v Manunta (1989) 54 SASR 17 at 26-38. The rule, particularly in its application to criminal trials, was examined by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 686-692. Finally (finally for present purposes – I do not suggest this is an exhaustive catalogue of the attention paid to Browne v Dunn), Sheller JA considered the rule, again, in relation to a criminal trial, in R v Abdallah [2001] NSWCCA 506; 127 A Crim 46.

It is commonly accepted that the rule is a rule of practice based upon the goal of achieving fairness in the conduct of litigation.
In Manunta, there were three separate (but related) issues on which it was said counsel for the defence had failed to cross-examine prosecution witnesses. The trial judge outlined, in simple terms, the Browne v Dunn rule, and explained its purpose. He told the jury that it was for them to decide the consequence of the failure to cross-examine on those issues. He told the jury they were entitled to ask themselves could those be:
“… matters of recent invention concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving to the police officers the opportunity to contradict those propositions?”
King CJ, with whom Bollen J agreed, held that each point was legitimately open for the consideration of the jury.
However, he added some cautionary words. He expressed concern about the prominence given to those matters in the course of summing up, while noting that it was legitimate to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or witnesses subsequently depose. But he added:
“It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial.” (pp 23-24)
In the particular circumstances of that case, his Honour was of the view that the matters had little weight, were explained to the jury quite fairly, and that no error had been demonstrated. Legoe J, who gave separate reasons, agreed that no error had been demonstrated.
Birks also involved the conduct of a criminal trial of serious offences. The inexperienced counsel representing the accused failed to cross-examine the complainant with respect to certain matters of considerable significance. The accused gave evidence and was vigorously cross-examined. It was suggested that, because the complainant had not been cross-examined on those matters, the evidence he subsequently gave about those matters was fabricated. Considerable emphasis was placed upon the failure to cross-examine, both in the address of the Crown prosecutor, and in the summing up of the judge.
Gleeson CJ adopted the views of King CJ in Manunta. In the circumstances of Birks, his Honour held that:
“… the issue was pursued by the Crown Prosecutor, and taken up by the learned judge, on the subject of the credibility of the [accused’s] evidence, in a manner which was inconsistent with the need for caution stressed by King CJ …” (p 692)
Abdallah was yet another case in which the rule was invoked in the context of criminal proceedings. In that case a highly experienced Queen’s Counsel had failed, in re-examination, to address an apparent inconsistency between what, in opening to the jury, he said he anticipated the evidence would be, and what was said by his client in cross-examination. The Crown put some emphasis upon this in final address to the jury, and that also was taken up by the trial judge, who repeated the Crown submission that what counsel expected the accused to say and what the accused did in fact say was not due to any incompetence on the part of Queen’s Counsel:
“… but to the fact that the accused could not get his story straight in relation to his knowledge of, or his involvement with …”
the subject matter of the proceedings.
Sheller JA, having referred to Browne v Dunn, Birks, and Manunta, said:
“As a practical matter, I do not think that this Court should assume that a barrister even of [Queen’s Counsel’s] experience could not make such a mistake. Experience does not, unfortunately, preclude error. More importantly, as was noted above, this Court is not primarily concerned with the actual cause of the inconsistency. Even if the chance of the inconsistency being due to an error or misunderstanding on the part of counsel for the appellant at trial was small, this should none the less have been suggested as a possibility to the jury. The comment of the trial Judge here, though, allowed for no such possibility. The trial Judge's statement that ‘you might expect counsel or certainly competent Queen's counsel, to open the case on what he expected the accused to say’ is significant. This statement was both factually questionable, since even eminent and experienced counsel on occasion make mistakes, and more importantly, inappropriate given the caution recommended in approaching this subject in Birks and Manunta. The emphasis given to [Queen’s Counsel’s] competence could only have served to reinforce to the jury that the only explanation for the inconsistency was that the accused had changed his story.” (italics in original, [27])
These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused’s counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw.
Accordingly, it is quite clear in my mind that the comment made by his Honour ought not to have been made.
It is therefore necessary to examine the practical effect of what was said.
The only evidence of the appellant that is within this ground of appeal is his evidence of having witnessed the complainant’s father pulling her panties from the cheeks of her bottom and patting her on the bottom. That the complainant’s father had, on occasions, slept in the same bed as the complainant, was elicited from the complainant in cross-examination.
As the trial was conducted, this assertion on the part of the appellant went nowhere. It was, in fact, no part of the defence case. It was something that emerged from the appellant in cross-examination.
When it was put directly to the appellant that he was trying to implicate the complainant’s father in the misconduct, he denied any such suggestion. When it was put to him that he had never mentioned this before, he said that he had. This was never pursued. It may well, of course, have permitted another witness to be called to support his credit (see Evidence Act 1995, s 108), but this was not done. I infer that it was not done because, in truth, the “bottom patting” incident was of no significance.
That can be illustrated by reference to the final address to the jury by counsel for the appellant. That address is transcribed in just over eight pages. She began by telling the jury squarely that her submission was that:
“… ultimately you could not be satisfied beyond reasonable doubt that the Crown has proved its case.”
She went on to say that it was not, and had never been, suggested to the complainant that “certain things” had not occurred; the defence case was that it was not the appellant who committed those acts. Although this was repeated, no suggestion was ever made that it was the complainant’s father who had committed the offences.
Counsel then went on to deal with a number of individual matters. She then dealt directly with what had been put by the Crown prosecutor, to the effect that the appellant had sought to “deflect” the inquiry upon the complainant’s father.
She said:
“You saw the crown prosecutor quite vehemently suggest to [the appellant] that he was lying … and he denied that. You will recall that [the appellant] on this particular issue said that he wasn’t trying to suggest anything other than to explain how it had arisen that there was a problem between [the complainant’s father] and his own mother. And how it came about that [the complainant’s father] had sworn at [the complainant’s] grandmother and that there had been a bit of an argument about that, that had later on turned into a fist fight between [the complainant’s father] and somebody else.”
She suggested that it was appropriate for the appellant to have given evidence of having seen the complainant in bed “in the company of her father”. She then suggested that, if the appellant had made that up, it was likely that he would have concocted a more damning story.
She then turned particularly to the incident the subject of count 9 and reminded the jury that the Crown had conceded that, on that occasion, the complainant did not see her attacker. She suggested that this evidence failed to meet the high standard required for criminal conviction.
The fact that no emphasis was placed by defence counsel on the “bottom patting” incident makes the comment by the trial judge even more unfortunate. The Crown prosecutor’s address is not so vulnerable to the same criticism because, having addressed first, he was not to know how defence counsel would deal with this matter.
But, as I have said, in the end, the “bottom patting” incident was of minimal significance. The fact, if it be the fact, that the appellant had not mentioned it to counsel, was unlikely to have been of any significance.
As events have transpired, however, I accept that that was not the fact. There was evidence before this Court, in the form of an affidavit affirmed by defence counsel, that the appellant had in fact told her of the incident, but that, in the exercise of her professional judgment, she did not raise it with the complainant in cross-examination.
Counsel for the Crown on the appeal has conceded that the submissions of the Crown prosecutor ought not to have been endorsed by the directions of the trial judge, at least without the identification of alternative potential explanations for the omission of counsel to cross-examine on that subject matter.
Counsel for the Crown argued that, notwithstanding the misdirection, there has been no miscarriage of justice arising either from the address of the Crown prosecutor or the directions given by his Honour (or a combination of the two).
I accept this submission. As I have said, the evidence in question did not have, in the trial, anything like the significance it has assumed in the appeal. I am satisfied that the comment occasioned no miscarriage of justice.
Criminal Appeal Rules 1952, r 4
By r 4 of the Criminal Appeal Rules, no direction (inter alia) shall, without the leave of the court, be allowed as a ground of appeal unless objection was taken at trial.
Here, it is accepted that neither of the directions the subject of the grounds of appeal was the subject of objection at the trial.
Counsel has affirmed an affidavit explaining her conduct of the trial. In the last paragraph she refers to her “relative inexperience”. Recourse to the Law Almanac shows that, at the time of the trial, she had been admitted to the Bar for two years.
In her affidavit she said that she was conscious of the reasonable doubt direction, and was troubled by it, but thought that nothing could be done to rectify it.
This was, in reality, a reasonable view to take. To ask for further directions could only lead to additional emphasis being placed upon these remarks.
A more experienced counsel may well have raised the issue, by way of self-protection, and to enable the contribution of the Crown prosecutor as well as the judge to any possible remediation of the situation. However, I do not think that, in these circumstances, leave to raise this ground of appeal should be refused under r 4 of the Criminal Appeal Rules.
Similarly, counsel explained her failure to take up the issue of the “bottom patting” incident. She said that, at the time, she did not believe that it had been highlighted very much in the Crown address, and she thought it better not to highlight it further by referring to it in her own closing address. She said that she was taken aback by the strength of the directions given by the judge and thought that he appeared to be criticising herself and the appellant. She had formed the view, at several points during the trial, that his Honour was critical of herself and of the appellant, and she was of the view that nothing she said at that time would change his view or lead to a re-direction. She said that she had formed the view, during the trial, that the judge’s attitude to her was “adverse”, or “critical”. She said that she had never encountered this situation before and felt “somewhat overwhelmed” by it, and unable to think of an appropriate way of dealing with it. She suggested that her relative inexperience may have contributed to her failure to raise the point.
Again, a more experienced counsel would have been aware of the need to ensure that concerns such as these are recorded in the transcript. However, in this case as well, once the damage had been done, there was not a great deal that could have been done to save the situation. It is true that his Honour could have given directions as to alternative possible explanations. Even that would have emphasised a relatively insignificant piece of evidence.
I would accept that counsel’s relative inexperience, and her response to what she perceived to be an “adverse” and “critical” judge, is some explanation for what may have been less than optimum judgments on her part. In these circumstances, I certainly would not refuse the appellant leave to argue these grounds. The grounds ought to be, and have been, determined on their merits.
The grounds of appeal do not involve “a question of law alone”. The appellant must be treated as an applicant for leave to appeal against conviction under s 5(1)(b) of the Criminal Appeal Act 1912: Rasic v R [2009] NSWCCA 202 at [2], [12]. No point was taken at the hearing of the appeal concerning the requirement for leave. The decision whether leave to appeal ought be granted involves an assessment of the arguability of the ground relied upon. Having regard to the fact that the issues raised and the grounds of appeal are reasonably arguable and warrant consideration by the Court, it is appropriate that there be a grant of leave to appeal in this case.
Criminal Appeal Act 1912, s 6: the proviso
Section 6 of the Criminal Appeal Act is the authority for this Court to intervene in respect of verdicts of juries in criminal cases. Section 6 requires the court to allow an appeal if it is of the opinion that the verdict of the jury should be set aside on any one or more of the following grounds:
●     that the verdict is unreasonable;
●     that the verdict cannot be supported, having regard to the evidence;
●     that the verdict should be set aside on the ground of the wrong decision of any question of law;
●     that on any other ground whatsoever there was a miscarriage of justice.
Section 6 goes on to provide:
“… provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
The two grounds of appeal, while raising questions of law, do not really assert a “wrong decision of any question of law”. They clearly raise “any other ground whatsoever” causing a miscarriage of justice. I have dealt above with those issues.
The Crown has argued that, even if, contrary to the views I have expressed above, either point raised in favour of the appellant might be decided in his favour, nevertheless the proviso ought to be applied and the appeal dismissed.
The nature of the task of a court charged with such a function has been stated in Weiss v R [2005] HCA 81; 224 CLR 300. The task is, fundamentally, to determine whether, in the conviction of the appellant, a substantial miscarriage of justice has actually occurred. In doing so, it must make its own independent assessment of the evidence, and determine whether (bearing in mind “natural limitations” created by its proceeding solely on the basis of the written record and in the absence of live witnesses) the appellant was proved beyond reasonable doubt to be guilty of those offences of which he (or she) was convicted.
The whole of the record that the appellate court must examine includes the fact that the jury returned a guilty verdict ([43]). The court is not to speculate upon the possible outcome of re-trial.
It is possible, in appropriate circumstances, to conclude that the error made at trial would (or should) have had no significance in the determination of the original verdict.
I have undertaken the task required by the proviso. Senior counsel who appeared for the appellant recognised that this issue would arise, and opened his submissions by contending that the proviso has “absolutely no application”. This was because the complaint of the complainant was uncorroborated, it was “very delayed” (in fact, almost 20 years); both the complainant and the appellant gave evidence and the trial, ultimately, boiled down to “oath against oath”.
I appreciate the force of those submissions. However, I have carefully read the whole of the transcript of evidence and also of the submissions made to the jury.
This was a case in which, despite her youth, the complainant was very familiar with the man she claimed perpetrated the offences upon her. He was her uncle, who had ready access to her home. A considerable issue was made of the circumstance that she failed to draw the attention of either her parents or grandparents to what was occurring at any time. As I have indicated, an attempt was made, although not in a vigorous way, to suggest that she was mistaken about the identity of the perpetrator and that it was in fact her father. Obviously, this attempt failed.
The complainant gave evidence that, in 1991, the family moved to a different suburb. The offences then ceased. (This evidence, if anything had been made of the attempt to cast blame on the complainant’s father, would have been a compelling rejection of the suggestion that he was the perpetrator.) In re-examination the complainant agreed that she had not reported the matter to the police until 2006, when she was 22 years old. When she was asked why she had not done so earlier, she said that the appellant was “around” and she still did not want to get him into trouble. The reason she did eventually come forward when she did was that she herself had a child and she did not want the appellant “coming around my baby”. She said that when she saw the appellant holding her baby she did not want him (the appellant) to touch him (the baby) anymore.
The appellant’s evidence was, as I have said, principally a denial of the offences, although there was also the evidence of the complainant’s relationship with her father.
As required by Weiss, I have carefully read all of the evidence. I am satisfied to the requisite standard (beyond reasonable doubt) that the evidence properly admitted at the trial proved beyond reasonable doubt that the appellant was guilty of the offences on which the jury returned verdicts of guilty.

I would also add that I am satisfied that neither of the errors which have been established impacted upon a correct verdict.
Even if I had been of the view that either of the grounds pleaded succeeded, I would apply the proviso.
I would therefore dismiss the appeal against conviction.
The Crown appeal against sentence
Much of the material relevant to the question of sentence has been set out above and I will not prolong this already long judgment by repeating it in detail. It will be necessary to be more specific about the nature of the offences.
The offences were committed over a period between 1990 and early 1991. At that time the appellant, having been born in August 1955, was 35 and 36 years of age.
Ten of the offences charged (including the two on which he was acquitted) were of sexual intercourse with a child under the age of 10 years; one was of inciting an act of indecency with a person under the age of 16 years; and three were of assault with an act of indecency on a person under the age of 10 years.
The sexual intercourse offences each carried a maximum penalty of imprisonment for 20 years; the inciting act of indecency carried a maximum penalty of imprisonment for 2 years; and the indecent assault counts each carried a maximum penalty of imprisonment for 4 years.
Madgwick ADCJ sentenced the appellant (as I shall continue to refer to him) as follows:

Counts 1, 2, 5, 10, 12, 13 (all of sexual intercourse with child under 10):	Imprisonment for a fixed term of 2 years to commence on 1 December 2009 and expire on 30 November 2011;
Count 3 (incite act of indecency):	Imprisonment for a fixed term of 6 months to commence on 1 December 2009 and expire on 31 May 2010;
Counts 4, 7, 8 (indecent assault):	Imprisonment for a fixed term of 6 months, each to commence on 1 December 2009 and expire on 31 May 2010;
Count 11 (sexual intercourse):	Imprisonment for a fixed term of 5 years to commence on 1 December 2009 and expire on 30 November 2014;
Count 14 (sexual intercourse):	Imprisonment for 7½ years, made up of a non-parole period of 5 years to commence on 1 December 2009 and expire on 30 November 2014 with an additional term of 2½ years to expire on 31 May 2017.

The overall sentence was therefore that imposed in respect of count 14. All other sentences, being concurrent, were subsumed within that sentence.
The appellant was 54 years of age at the time of sentencing. He had a criminal history which was relatively minor, involving only offences of “offensive manner on enclosed lands” and “destroy or damage property”, both of which post-dated the present offences.
He did not give evidence in the sentencing proceedings, and did not call evidence or produce any psychological or psychiatric material.
Information concerning his personal circumstances was put before Madgwick ADCJ by his counsel. This was accepted by his Honour. The appellant left school at “a reasonably young age” and obtained a trade qualification as a painter and decorator, employment he pursued for most of his early adult life. He has had four children, of whom three survive. One, an 11 year old son, is autistic. He has played some role in maintaining Aboriginal culture relevant to his family, and has been involved in an Aboriginal land claim.
The offences
There were nine separate occasions on which the appellant was alleged to have committed sexual offences on the complainant. Some of them involved multiple offences. In respect of two of the occasions, or incidents, each involving one charge only, the appellant was acquitted (once by direction and once by jury verdict). That left seven separate occasions in respect of which the appellant was to be sentenced. Not surprisingly, the date of the occurrences could not be pinpointed with any accuracy or certainty.
The first incident occurred in the winter of 1990. The complainant had been asleep and woke to go to the toilet. She had to walk past the table in the dining room to do so. The appellant was asleep. When she returned, he was awake, greeted her, and asked her for a cuddle. He told her that he loved her, pulled her to him, and told her that his hands were cold. He unzipped her jumpsuit and put his hands inside it. When the complainant asked what he was doing, he said that he had to get his hands warmer. He fondled her indecently and inserted his finger into her anus, then her vagina. She noticed that his penis was hard. He told her to touch it and put his hand on it. He then required the complainant to smell his fingers. He told the complainant:
“This is our little secret. You can’t tell anyone because you don’t want to get uncle … into trouble like”.
The digital penetration of the anus constituted the offence the subject of count 1. The digital penetration of the vagina constituted the offence the subject of count 2 (each of sexual intercourse). For each offence the appellant was sentenced to imprisonment for a fixed term of 2 years. The act of causing the complainant to fondle his penis constituted the offence the subject of count 3 (inciting act of indecency). For this the appellant was sentenced to imprisonment for a fixed term of 6 months.
The second incident occurred shortly after. The appellant was to drive his car to the shop on an errand for his mother. The complainant’s brothers wished to accompany him. The appellant arranged for the complainant to sit in the front seat of the car, over the wishes of her brothers. He purchased sweets for the children. On return to the house the complainant’s brothers jumped out of the vehicle. The appellant detained the complainant for a moment and told her to remember what he had earlier said about keeping matters “our little secret”. He rubbed the outside of her tracksuit pants over the vaginal area and gave her two 50-cent coins. This gave rise to count 4 (indecent assault). For this the appellant was sentenced to imprisonment for a fixed term of 6 months.
The third incident occurred when the complainant was in the lounge room getting ready to sleep. The appellant knocked on the door of the home. His mother admitted him. After the complainant went to bed, and when it was dark, she felt the appellant tapping her. He asked her to come to the kitchen table, where he digitally penetrated her. This gave rise to count 5 (sexual intercourse). This resulted in a term of imprisonment for 2 years. He told her she was “a good little girl” and that what had happened was “our little secret”. He also told her not to tell anybody because she would not want him to get into trouble.
The fourth incident occurred on an occasion when the complainant’s parents were out for the evening and the complainant and her brothers were in the care of her grandmother. Her brothers were asleep in the lounge room area. While her grandmother was occupied in assisting to put her grandfather to bed, the appellant took the complainant into her parents’ bedroom. He dragged her in and locked the door. She protested but was unable to leave. He displayed his penis to her. He told her to touch it, a direction with which she complied. He showed her how to grab it and put her hand on it. This gave rise to count 7 (indecent assault). For this the appellant was sentenced to imprisonment for 6 months. The appellant asked the complainant to kiss his penis. She tried to pull away, and again protested, and said she wanted her mother. He said “[name of complainant] it’s okay … I just want you to – to kiss it and then I’ll let you – I’ll let you go”. She did so, and as she did so, he moved and ejaculated. That event gave rise to count 8 (indecent assault). This resulted in another term of imprisonment for a fixed term of 6 months. The complainant’s grandmother by this time was banging on the door asking where the complainant was and the appellant abused her.
The fifth incident occurred a couple of months later. The complainant went to sleep in the lounge room. She felt the blanket pulled from her. The appellant got into bed with her, removed his clothes and her underwear, put his legs between hers and pulled her legs apart. He lay on top of her, lifted her shirt, and kissed her chest area. He inserted his fingers into her vagina, removed them and re-inserted them. At the same time he was rubbing himself against her. That gave rise to count 10 (sexual intercourse). For this the appellant was sentenced to imprisonment for a fixed term of 2 years.
The appellant placed his penis against her vagina, and tried to, and did, penetrate her with it. He ejaculated. He put the complainant’s underwear back on her, and replaced the blanket. The penile-vaginal penetration constituted the offence the subject of count 11 (sexual intercourse). For this the appellant was sentenced to imprisonment for a fixed term of 5 years.
The following day, in the backyard of the house, the appellant took hold of the complainant by both wrists, and said:
“Remember what I said, this is our little secret.”
The sixth incident again occurred when the complainant was in bed. The appellant came to the house. The appellant woke her by lifting the blanket. She had been avoiding him and he asked did she not love her uncle anymore. She told him she did not want him to do what he was doing, and she wanted her mother. He repeated the question, she repeated that she wanted her mother. He put his hand down her underwear, and inserted his fingers inside her vagina. She was sobbing; her tried to comfort her. He said “Okay, I’m finished now it’s okay”. That gave rise to count 12 (sexual intercourse). For this the appellant was sentenced to imprisonment for a fixed term of 2 years.
The final incident occurred some time later. The complainant’s family had temporarily moved to another town, but then returned to Sydney. When the appellant saw her he asked if she had missed him. Later, he came into the house. By this time the complainant was extremely scared of the dark and needed someone to sleep with her. Her brother slept in the bottom bunk of a pair of bunk beds. The appellant went into the lounge room where the complainant was sleeping and turned the television on. He told his mother to go to bed.
The appellant asked the complainant to come and give him a cuddle. She did so. He invited her to jump into the bed beside him. She did this also. He fondled her, kissed her on the neck, on the chest and vagina, and asked her if she trusted him. He removed her underwear, inserted his fingers in her vagina and followed this by penile penetration. He ejaculated. He again told her that what was happening was “our little secret” and she was not to tell anybody.
The final incident gave rise to the offences the subject of count 13 (sexual intercourse by digital vaginal penetration) and count 14 (sexual intercourse by penile vaginal penetration). For the digital penetration the appellant was sentenced to imprisonment for a fixed term of 2 years. For the penile vaginal penetration the appellant was sentenced to imprisonment for 7½ years, made up of a non-parole period of 5 years, and a balance of term of 2½ years.
The remarks on sentence
His Honour found the facts in relation to each of the offences.
The judge addressed the mitigating and aggravating factors set out in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”).
He recognised that the offences were old offences, and that the sentencing task involved his attempting to sentence in accordance with the sentencing regime that existed in 1990 and 1991, the time when the offences were committed. In order to do this, he was given some assistance with sentences drawn from that era. His Honour acknowledged that, if the appellant were being sentenced in accordance with current sentencing standards, the penalties would very likely have been considerably higher.
His Honour observed that, by reason of the nature of the offences, it was likely that the appellant would serve his incarceration in protective custody. (There was no evidentiary foundation for this finding.) Notwithstanding his recognition that, in recent times, serving a sentence in protective custody does not automatically entitle mitigation of sentence, he accepted “the reality” that the appellant might be exposed to some additional risk. He also recognised that the appellant’s age, 54 at sentencing, was a relevant circumstance.
In sentencing the appellant as he did, Madgwick ADCJ found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the proportion between the head sentence and the non-parole period there set out. The two factors that led to this conclusion were the appellant’s age and the special hardship of confinement that the judge had already found the appellant would endure.
The grounds of the Crown appeal
The Crown has identified four grounds of appeal. They are:
“1.His Honour erred in failing to impose sentences in accordance with the principles stated in Pearce v The Queen (1998) 194 CLR 610.
2.His Honour erred in taking into account circumstances of hardship in respect of the respondent’s custody in the absence of evidence supporting the finding.
3.His Honour erred in imposing an aggregate sentence that failed to properly reflect the objective seriousness of the offences.
4.The combination of errors and the failure to partially accumulate the sentences produced an aggregate sentence that is manifestly inadequate.”
Ground 1
It is worth repeating what was said by McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57; 194 CLR 610. It was:
“45To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. (italics added)
At the conclusion of his Remarks on Sentence, and after he had announced the sentences he proposed to impose, the judge said:
“It will be clear that I have sought to punish for the entirety of the criminality involved.”
That suggests to me that his Honour did commit the error referred to in the Pearce passage extracted. He has had regard only to the total effective sentence.
That conclusion is reinforced when regard is had to the actual sentences. In this respect, however, it is of considerable importance to recall that his Honour was not sentencing under current sentencing patterns, but attempting to retrieve or recreate the sentencing pattern of two decades earlier. It is also of importance to note that, since 2003, judges have been sentencing under the regime prescribed by Pt 4 Div 1A of the Sentencing Procedure Act (which, in respect of some offences, including certain sexual offences, prescribes “standard non-parole periods”). The prescription of standard non-parole periods, particularly in respect of sexual offences, has significantly increased sentences. Care must be taken not to evaluate the sentences imposed by reference to current expectations.
Counts 1 and 2 were brought under s 66A of the Crimes Act 1900, as it then stood. It carried a maximum penalty of imprisonment for 20 years. These offences involved, in quick succession, digital penetration of the complainant’s anus and then her vagina. She was six years of age. He was 34 or 35 years of age. He was in a position of some trust, being her uncle, with easy access to her home. He was, it seems, trusted by her parents and grandparents. He warned the complainant not to disclose what he had done, for fear of getting him into trouble. On each of these counts, the appellant was sentenced to imprisonment for a fixed term of 2 years, commencing on 1 December 2009.
On any view, sentences of 2 years were inadequate, and manifestly so, to mark the criminality involved. The sentences do not approach a proper recognition of the objective gravity of the offences. The error is precisely that identified in Pearce: because the sentences were wholly subsumed in the longer sentence imposed in respect of the last offence, the manifest inadequacy of these sentences was masked. These offences were also accompanied by the inciting of the complainant to commit an act of indecency that constituted the offence charged in count 3. That offence, it will be remembered, involved the appellant requiring the complainant to fondle his erect penis, and to smell his fingers after he had penetrated her. For that, the appellant was sentenced to imprisonment for a fixed term of 6 months, to be served wholly concurrently with the sentences imposed in respect of counts 1 and 2. That, also, was manifestly inadequate. The sentence fails to reflect the objective gravity of the offence.
Counts 4, 7 and 8 were of indecent assault, brought under s 61E(1) and s 61M(2) of the Crimes Act, carrying a maximum penalty of imprisonment for 4 years. On each of these also the appellant was sentenced to wholly concurrent fixed terms of six months.
The offence charged in count 4 was the offence committed when, after a shopping trip, the appellant rubbed the outside of her tracksuit pant over her vaginal area and gave her a small amount of money. I would accept that, of its kind, this was an offence of lesser gravity than some. I do not find the sentence imposed in respect of this offence manifestly inadequate.
Counts 7 and 8, of the same genre, were the offences committed while the complainant’s parents were out for the evening and her grandmother was distracted. The appellant took her into her parents’ room and locked the door. In the face of her protests, he exposed his penis to her and told her to touch it. He asked her to kiss it. She resisted, told him she did not want to do it and that she wanted her mother. When she did as he ordered, he ejaculated.
These were manifestly more serious instances of indecent assault. The sentences were also manifestly inadequate. They do not reflect the objective gravity of the offence.
Count 5 was another count of sexual intercourse, constituted again by digital penetration. It was also accompanied, not only by the appellant telling the complainant that “this is our little secret”, but also warning her against disclosure because he would get into trouble. The appellant was again sentenced to a wholly concurrent fixed term of 2 years.
That sentence was manifestly inadequate. It fails to recognise the objective gravity of the offences.
Counts 10 and 11 were also of sexual intercourse, again carrying maximum penalties of imprisonment for 20 years. Count 10 was an offence of digital vaginal penetration, committed while the complainant was in her bed into which the appellant intruded; count 11 was constituted by penile penetration of her vagina. A fixed term of imprisonment for 2 years was imposed in respect of count 10. That was manifestly inadequate. It also fails to recognise the objective gravity of the offence. Although I consider that imprisonment for a fixed term of 5 years imposed in respect of count 11 was lenient, I would not conclude that it was outside the range of the sentencing discretion available.
Counts 12, 13 and 14, were all of sexual intercourse, carrying the same maximum penalty. The offence constituting count 12 was also committed after the complainant had been asleep and was woken by the appellant and after she protested and told him she did not want him to do what he was doing to her. Nevertheless, he penetrated her vagina digitally. She was sobbing. He was trying to comfort her – demonstrating that he was well aware of the distress he was causing. A sentence of imprisonment for a fixed term of 2 years was imposed.

This sentence was manifestly inadequate. It fails to recognise the objective gravity of the offence.
Counts 13 and 14 were again constituted by, respectively, digital and penile penetration followed by ejaculation. The sentence imposed in respect of count 13 was a fixed term of imprisonment of 2 years. For the same reason, it was manifestly inadequate.
In respect of count 14, the offence of sexual intercourse constituted by penile vaginal penetration, the appellant was sentenced to imprisonment for 7½ years, with a non-parole period of 5 years. I am not prepared to conclude that, in respect of that offence, that sentence was outside the range of legitimate sentencing discretion.
Each offence was committed in the complainant’s home, where she should have felt, and been safe. A Victim Impact Statement (described by the judge as “affecting”) attests to the emotional harm caused to the complainant.
Having regard to these conclusions, it will be necessary to propose fresh sentences. I will do that after I have considered the other grounds of appeal.
Ground 2: taking into account circumstances of hardship in the appellant’s custody
His Honour was aware of recent authority to the effect that the fact that a prisoner will serve a sentence in protective custody is not automatically to be regarded as a circumstance mitigating the sentence: R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581; R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304; Clinton v R [2009] NSWCCA 276.
However, he appears to have not only taken this supposed circumstance into account, but to have taken it into account both in the determination of the sentences to be imposed, and in the finding of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act.
Not only was it wrong to do so, there was no evidentiary foundation for the assumption.
I accept that this was erroneous. The extent to which it affected the sentence is not clear, but, having regard to the manifest inadequacy of many of the sentences, the error cannot be ignored.
Ground 3: objective seriousness
Ground 4: failure to accumulate
I have, above, found that many of the sentences imposed were manifestly inadequate. It follows, there being no accumulation at all, that the aggregate sentence was also manifestly inadequate.
It is conceivable that a series of manifestly inadequate sentences, with a due degree of accumulation, may result in an aggregate sentence that is not outside the range of sentencing discretion. In the absence of any accumulation, that cannot here be the case.
Senior counsel for the appellant acknowledged that the individual sentences did not “strictly” comply with Pearce, but submitted that, when regard is had to sentencing patterns of the relevant time (1990-1991), it could not be shown that the aggregate sentence was manifestly inadequate. I have rejected that proposition. In the circumstances of this case, in which the aggregate sentence was also the sentence imposed in respect of the last, and, arguably, most serious, charge, the proposition is unsustainable. That is so notwithstanding that I have not found that that individual sentence was not manifestly inadequate.
It remains a difficult exercise to attempt to retrieve the sentencing patterns of two decades ago. Senior counsel provided to this Court, very helpfully, a detailed table showing a significant number of cases, and the sentences imposed, whether at first instance, or after appeal. Not surprisingly, none appears to be truly parallel with the present series of offences. Many involve sentences imposed after a plea of guilty, with consequent reduction (although, as they pre-date the decision of this Court in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, the extent of the reduction that was given could not be identified).
Senior counsel’s industry in compiling this table is commendable, and I do not intend to dilute recognition of that fact by what I am about to say. But, notwithstanding that it contains, condensed into manageable form, a considerable amount of information, it does not entirely transport the Court back to 1990 and 1991. What it does is demonstrate that, even in those days, where offenders were sentenced for multiple offences, a sentence of 7½ years was extremely unusual. There are, of course, some sentences contained in that table which are less; but, generally, these involve a much smaller number of offences.
I have found the table useful, and it has, to some extent, moderated the sentences I otherwise would have proposed. Nevertheless, I remain of the view that, even by the standards of 1990 and 1991, these sentences were manifestly inadequate, and the aggregate was also manifestly inadequate.
I have had regard, also, to decisions provided to the sentencing judge. These include R v Davis [1999] NSWCCA 15; Fina’i v R [2006] NSWCCA 134; R v EGC [2005] NSWCCA 392; R v KSF (NSWCCA, 10 September 1992, unreported).
Again, there is no truly parallel case. The salient features of the present case are the age of the complainant, the relationship between her (and her family) and the appellant, the location (her own home) where the offences were committed, and the secretive nature of the offences.
I propose that the sentences be quashed, and the appellant re-sentenced as set out hereunder.
A sentencing court is required firstly to set a non-parole period, which is the minimum term of imprisonment that the offender must serve for the offence, and secondly, to set a balance of term during which the offender may be released on parole. The balance of term is not to exceed one-third of the non-parole period, unless the court decides that there are special circumstances, in which case it is required to state the reasons for that decision.
By s 45(1) of the Sentencing Procedure Act, the sentencing court may decline to set a non-parole period and instead set a fixed term if it considers it appropriate to do so, because of the nature of the offence or the antecedent character of the offender, or because of some other penalty previously imposed on the offender, or for any other reason that the court considers sufficient. Where the court takes that course, it is required to state its reasons for doing so (s 45(2)).
The course I propose is that the appellant be sentenced sequentially in respect of the offences committed during the course of each separate incident. There will be some accumulation.
In respect to the first imposed sentences, I propose that a fixed term be set; I propose that course, pursuant to s 45, because of the sentences I later propose, as a result of which the earlier imposed sentences will be fully subsumed. To fix a non-parole period would achieve nothing.
I would adopt the finding of special circumstances only insofar as it is made necessary by the accumulation. I would retain the statutory ratio in respect of the aggregate sentence. In order to achieve that, it has been necessary to make a small adjustment in the structure of the last sentence by reducing the non-parole period and expanding the balance of term. This does not reflect any view that the non-parole period was excessive. It has been made necessary in order to guard against imposing a sentence in which the parole period is less than that envisaged by the statute.
The sentences I propose are:
The first incident

Count 3 (incite act of indecency – touch penis, smell finger)	A fixed term of imprisonment for 9 months, commencing on 1 December 2009 and expiring on 31 August 2010;
Count 1 (sexual intercourse – anal digital penetration)	A fixed term of imprisonment for 3 years, commencing on 1 June 2010 and expiring on 31 May 2013;
Count 2 (sexual intercourse – vaginal digital penetration)	A fixed term of imprisonment for 2 years and 9 months, commencing on 1 December 2010 and expiring on 31 August 2013.

The second incident

Count 4 (indecent assault)

A fixed term of imprisonment for 6 months, commencing on 1 June 2011 and expiring on 30 November 2011.

The third incident

Count 5 (sexual intercourse – digital penetration)

A fixed term of imprisonment for 2 years and 9 months, commencing on 1 September 2011 and expiring on 31 May 2014.

The fourth incident

Counts 7 and 8 (indecent assault – touch penis – kiss penis)

A fixed term of imprisonment for 1 year and 6 months, commencing on 1 December 2011 and expiring on 31 May 2013.

The fifth incident

Count 10 (sexual intercourse – digital penetration)	A fixed term of imprisonment for 3 years and 6 months, commencing on 1 June 2012 and expiring on 30 November 2015;
Count 11 (sexual intercourse – penile penetration)	Imprisonment with a non-parole period of 5 years, commencing on 1 December 2012 and expiring on 30 November 2017 with a balance of term of 2½ years expiring on 31 May 2020.

The sixth incident

Count 12 (sexual intercourse – digital penetration)

Imprisonment with a non-parole period of 3 years, commencing on 1 March 2013 and expiring on 28 February 2016, with a balance of term of 2 years expiring on 28 February 2018.

The seventh incident

Count 13 (sexual intercourse – digital penetration)	Imprisonment with a non-parole period of 3 years, commencing on 1 June 2013 and expiring on 31 May 2016, with a balance of term of 2 years expiring on 31 May 2018;
Count 14 (sexual intercourse – penile penetration)	Imprisonment with a non-parole period of 4 years and 8 months, commencing on 1 October 2013 and expiring on 31 May 2018, with a balance of term of 2 years and 10 months expiring on 31 March 2021.

This gives an overall sentence of 11 years and 4 months’ imprisonment comprising a non-parole period of 8 years and 6 months and a balance of term of 2 years and 10 months. The earliest date on which the appellant will be eligible for release on parole is 31 May 2018.
The orders I propose are:
(i)Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912, leave be granted to appeal against each conviction;
(ii)Appeal against conviction dismissed;
(iii)Crown appeal allowed, sentences quashed;
(iv)Appellant re-sentenced as follows:
The first incident

Count 3 (incite act of indecency – touch penis, smell finger)	A fixed term of imprisonment for 9 months, commencing on 1 December 2009 and expiring on 31 August 2010;
Count 1 (sexual intercourse – anal digital penetration)	A fixed term of imprisonment for 3 years, commencing on 1 June 2010 and expiring on 31 May 2013;
Count 2 (sexual intercourse – vaginal digital penetration)	A fixed term of imprisonment for 2 years and 9 months, commencing on 1 December 2010 and expiring on 31 August 2013.