Salmond v R

[2010] NSWCCA 141

New South Wales
Court of Criminal Appeal

CITATION:	Salmond v R [2010] NSWCCA 141
HEARING DATE(S):	25 May 2010
JUDGMENT DATE:	7 July 2010
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 2; Fullerton J at 102
DECISION:	(i) Appeal against conviction dismissed; (ii) Leave to appeal against sentence granted, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – particular offences – offences against the person – sexual offences – indecent assault – sexual intercourse without consent - CRIMINAL LAW – appeal against conviction for sexual intercourse without consent – whether error in giving direction to jury on recklessness as to consent – direction on recklessness required where consent in issue – no error in giving direction where consent not in issue – cross-examination capable of suggesting consent – failure to give adequate direction in accordance with R v Murray – no particular form of words necessary, adequate directions given – appeal against conviction dismissed - CRIMINAL LAW – appeal against sentence for sexual intercourse without consent – sentence not manifestly excessive – standard non-parole period – offence below mid-range of objective gravity – sentence imposed not outside range available to sentencing Judge – leave to appeal against sentence granted, appeal dismissed
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Henning (NSWCCA, 11 May 1990, unreported) R v Murray (1987) 11 NSWLR 12 R v Porteus [2003] NSWCCA 18 R v Qin; Qin v R [2008] NSWCCA 189
PARTIES:	Christopher John Salmond (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/14402
COUNSEL:	K Ginges (Applicant) F Veltro (Respondent)
SOLICITORS:	Hal Ginges & Co (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/14402
LOWER COURT JUDICIAL OFFICER:	Bennett DCJ
LOWER COURT DATE OF DECISION:	1 June 2009

2007/14402

McCLELLAN CJ at CL
SIMPSON J
FULLERTON J

7 July 2010

Christopher John SALMOND v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: This is an appeal against conviction in the District Court on 20 April 2009 on a count of sexual intercourse without consent, and an application for leave to appeal against the sentence subsequently imposed.

Procedural history

3 The procedural history is unusual.

4 The appellant was arrested on 8 May 2007 and charged with one count of indecent assault and one of sexual intercourse without consent, both allegedly committed against the same victim, in the course of providing her with massage therapy on 20 April 2007. He was indicted, on both counts, on 4 August 2008, and a trial, over which Coorey DCJ presided, proceeded. The jury in that trial found the appellant guilty of the offence of indecent assault, but was unable to reach a verdict (either unanimous or majority) in respect of the sexual intercourse count.

5 The appellant was reindicted on that count, on 14 April 2009, and a trial, before Bennett DCJ, proceeded. On 20 April 2009, pursuant to s 55F of the Jury Act 1977, a majority verdict of guilty was returned.

6 On 1 June 2009 Bennett DCJ sentenced the appellant on both counts. On the indecent assault count, he imposed a fixed term of imprisonment for 2 years, commencing on 20 April 2009; on the sexual intercourse count, he imposed a sentence of imprisonment for 4½ years, made up of a non-parole period of 2 years and a balance of term of 2½ years, also to commence on 20 April 2009 and therefore to be served concurrently with the first-imposed sentence.

7 The appellant appeals against the conviction following the second trial: that is, he appeals in respect of the conviction for sexual intercourse without consent. He does not appeal against the conviction for indecent assault. He seeks leave also to appeal against the sentence imposed in respect of the sexual intercourse offence; he does not seek leave to appeal against the sentence imposed in respect of the indecent assault offence.

The Crown case

8 What follows is an account of the Crown case as it emerged from the evidence of the principal Crown witness, the complainant. It does not represent any findings of fact other than those that are necessarily implied in the jury verdict.

9 The appellant was a massage therapist. He was the owner and manager of the North Ryde Therapeutic Massage business, located in the Fitness First gymnasium at North Ryde.

10 The complainant, to whom I will refer as AT, was a medical practitioner working as a surgical registrar. As a result of her work she experienced chronic backache, shoulder and neck pain, migraines and tension headaches. She was a member of the North Ryde Fitness First gymnasium.

11 On 13 April 2007 AT attended the appellant’s massage clinic for the first time. The appellant took a history from her, opened a file containing her personal information, and performed a one-hour full body massage. Before doing so, he instructed her to “get changed”, which meant removing her clothing. She removed her outer clothing but remained in her underwear. This treatment was completed without incident. AT was very happy with the result and made an appointment for a repeat massage one week later, this time for 1½ hours.

12 On 20 April 2007 AT again attended the clinic, in the afternoon. The appellant closed the door of the massage room, instructed AT to pull the curtain, “get changed”, and lie down. (“Get changed” again appears to have meant “disrobe”.) While the complainant was doing this, the appellant suggested that, because of the pain she had had in her lower back, and so that he could concentrate on that area, she might be more comfortable if she also removed her underwear. He told her to do so only if she felt comfortable. AT did remove her underwear, and lay face down on the massage table, covered with a towel.

13 The appellant massaged AT’s neck and upper back, then the lower back and the legs. He told AT to turn over, and lifted the towel while she did so. He massaged the front, the arms, the lower legs and the thighs. He performed some stretching exercises on her legs. He then began to press on AT’s lower abdomen, on the left hand side of the body.

14 The appellant then said:

“Well now that the painful part is over do you want a more relaxing massage just to cap things off?”

15 He did not explain what he meant by this. Thinking that he might have been alluding to aromatherapy massage of the kind she had had at the beautician, AT agreed. By this time she had two towels covering her, one on the upper body, and one on the lower. The appellant brought the upper towel up so that her abdomen was exposed, and began massaging her stomach.

16 AT was a little surprised at this, but, having experienced something similar in Thailand, she said nothing.

17 The appellant then covered AT’s abdomen with the towel, and removed the towel from her upper body, exposing her breasts. Again, AT was surprised and unsure what he was doing, but said nothing – again, because of her previous experience in Thailand. AT became more nervous, but did not wish to jump to any conclusions.

18 The appellant then returned the towel to AT’s upper body, and totally removed the towel covering her lower body and began to massage her thighs. At this stage, AT did become concerned, even “a little bit terrified”. While he was massaging AT’s thigh the appellant’s hand brushed against her clitoris. Still wishing to give the appellant the benefit of the doubt, and thinking that perhaps this was accidental, AT said nothing. She did, however, keep her legs together in an attempt to convey to him that she was not happy with this treatment. The appellant then slid his hand between her legs and inserted his finger in her vagina. In order to do so he pushed her thighs apart. He pushed what she thought was one finger in and out “a few times”. She was unsure how many times.

19 AT then gave this evidence:

“I pushed his hand away and I told him to stop. And he turned away with his fingers still inside me saying, ‘Are you sure you want me to stop?’ and I said, ‘Yes’. And he said, ‘Well I thought I was trying to de-stress and relax you. Sorry if I made you more stress’.”

20 The appellant then washed his hands, pulled the curtains and returned to his desk as AT dressed. She paid the bill. He asked if she wished to make another appointment but she declined, making an excuse that she would not have time.

21 As she left AT picked up a brochure for the clinic. She did this because, in a state of some agitation or anxiety, she wanted to be sure that she had the correct details of the establishment. This, in turn, was because she intended immediately to report the appellant’s conduct to police. She left the building, went to her car, and sat there for a period of time to try to compose herself. She called a friend, with whom she was to have dinner that night, told him that something had happened and asked him to meet her at the police station at Eastwood. She drove immediately to the Eastwood Police Station, met her friend, and walked to the police station. On the way, she told her friend that she had been sexually assaulted at the massage therapy clinic. The two went to the police station, where AT told the (ununiformed) attendant that she had been sexually assaulted. Thereafter she was interviewed by detectives. They took her to the Westmead Hospital for examination where she was seen in the emergency department and introduced to a sexual assault counsellor until she was seen by a doctor.

22 The account given above is drawn from AT’s evidence in chief. It will be necessary, in due course, to make some reference to the nature of the cross-examination. However, that can be deferred. One of the police officers who spoke to AT was Detective Senior Constable Martha Winch. On 21 April, the day following AT’s report, Detective Winch, accompanied by Constable Palmer, obtained crime scene warrants and attended the North Ryde Fitness First gymnasium. Having obtained some records of AT’s “usage history” she then attended the therapeutic massage centre where she handed an Occupier’s Notice to the appellant. She removed a number of items relating to AT.

23 It was not, however, until about 8.30pm on 8 May 2007 that the appellant was interviewed. At that time, pursuant to a prearranged appointment, he attended at the Ryde Police Station. From about 8.50pm the appellant participated in an electronically recorded interview with Detective Winch. Detective Winch explained the allegation that had been made and asked the appellant a series of questions about the treatment he had given to AT. He said that he had told AT that, the previous week, he had noticed that she was “especially tight through the hips and the pelvic area” and that it was easier to work on that area if she removed her underwear, but told her only to do so if she were comfortable with that. He gave an account of what he said was “deep tissue massage”, which he said took longer than he had realised. The extracts that follow are taken from the transcript of the interview that was before the jury. He told Detective Winch that he then said to AT:

“Ah, you’ve, you’ve just had nearly two hours of deep tissue massage, how would you like to finish with something relaxing and de-stressing? And she said um, um, oh, There’s, I think she said something like, There’s, there’s lots of ways to de-stress. And … now, what I was going to do is the way I quite often finish a ninety minute relaxation massage and if I’ve got time … quite often don’t have time, which is an optional massage of the abdomen. I always ask because it’s an area some people just don’t like being touched, and lymphatic drainage on her face, which is very soft, gentle, very relaxing, it’s just a nice way to, to finish the massage. So first of all I said to her, would you like me to massage your abdomen? And she said, yes. Um, so I did massage the abdomen. Now, that involves exposing just the abdomen area, it’s basically from there to there, so the entire chest area --- including her breasts --- is covered by one towel going across the top --- and there’s another towel covering the groin area.”

24 He said that the fact she was not wearing underwear made no difference because he always covered that area. The appellant then went to say:

“--- um, and, what I was doing, one part where, that’s right, I was going on the small intestine, when, when she just grabs my hand and pushes it down under the towel onto her pelvic area, I suppose it was over her pubic hair, I guess. It shocked the hell out of me. Umm, umm, and I sort of, I just took my hand away. I was really shocked. I don’t think I actually said anything at that stage. Um, and I just carried on and then she did it again. Um, so I sort of stood away, a little bit away from the table and turned to her and said um, what did I say exactly, I said to her, you know I can’t do that. And um, and she said to me, it’s all right, I want you to. And I said, no, it’s not, I said, apart from the fact it’s unethical I don’t want to do it. And I said it very harshly to her. Um, I was, I was quite surprised. No client has, male or female, has ever done anything like that to me before … then she said to me, what do you care about ethics, you asked me to take my underpants off. I’m thinking, oh, shit. Um, and I immediately, oh, I was starting to think ah, oh, she’d misunderstood me or, or whatever, and I thought, this has got to end. So I said to her, look, This massage is finished.”

25 He said that he then went to the sink and washed his hands as was his usual practice. Detective Winch then moved to the allegation that the appellant had massaged AT’s breasts and nipple areas. He said:

“Oh my God. She said that? … Bloody hell … Didn’t happen. Ah, oh shit.”

He said that he never massaged the breasts of females.

26 A little later, he told Detective Winch that, during the first massage, on 13 April, AT had told him about the work she was doing, the long hours she was working, and that she had been required to work at various hospitals, all around NSW, and was moving at least every six months. He said that she told him she had found it difficult to make friends. He said:

“Um, so um, I don’t know if that’s got anything to do with it or not but um, yeah, I sort of did feel sorry for her. She actually said to me too um, at one stage, my life at the moment consists of working and sleeping. They were her words, that’s all I do, work and sleep, so it’s a tough way to be. I mean, I don’t know.”

27 Detective Winch then asked him about what she called “the second part” of AT’s allegation. He said:

“O.K. you mean there’s more? God.”

28 Detective Winch then outlined the allegation about the digital penetration. The appellant said:

“You are kidding me.”

29 When the allegation was put explicitly to him, he said:

“Well, I’ve told you what happened so um, I don’t believe it. Why would she do this? Anyway, if I was to do this why would I do it to a doctor for God’s sake, it doesn’t make any sense. Sorry …

Shit.”

30 A little later, he returned to the suggestion that perhaps AT was lonely, and that, perhaps, he had “let [his] guard down a little bit” and done not enough to protect himself “from things like this”.

31 Mr Greg Morling, a massage therapist and teacher, was called in the Crown case. His evidence was directed to standard massage practice and operating procedure. Inter alia, he said that a professional massage therapist would document, in the client’s file, any untoward conduct by the client, such as that attributed to the appellant by AT. There was no such documentation in AT’s file.

The defence case

32 The appellant did not give evidence in the trial. He relied upon the content of the interview with Detective Winch. Otherwise, his case consisted of the evidence of one witness, Ms Lucia Rapley, herself a massage therapist, who had worked with the appellant.

33 Ms Rapley’s evidence in chief was that, for a period in 2005 or 2006 she had worked as “a sub-contractor” with the appellant in the North Ryde RSL Club (where the Fitness First gymnasium was located); they had, essentially, shared premises and shared clients. They had an arrangement between themselves that, on a fortnightly basis, they would “swap massages”; by this she meant that, on one fortnight he would massage her, and on the alternate fortnight she would massage him. Even after learning of the allegations against the appellant she continued this arrangement.

34 Although this evidence has the flavour of character evidence, it was not tendered for that purpose. Ms Rapley’s evidence was tendered for the purpose of explaining the appellant’s invitation to AT to remove her underwear.

35 She gave evidence about her practice with respect to removal of clothing. She said men always removed their clothes, women always removed their bras. Once she had worked with a client a couple of times and they had become comfortable with her, she told them that whether or not they wore underwear was a matter of their choice. It was not her experience that female clients should always retain their underwear during a massage session.

* * *

36 At the conclusion of the evidence, the trial judge and counsel discussed the issues as to which it would be necessary to direct the jury. His Honour mentioned the question of mistake (as to consent), and said that he did not believe it was appropriate to give a direction in those terms. The trial advocate who represented the Crown suggested that a “recklessness” direction ought to be given. This was opposed by counsel for the appellant, who said:

“My submission on that issue your Honour is that a recklessness direction would not be required in the circumstances where the defence case at trial was that no intercourse occurred.”

He said that was because the appellant had not raised “any indication” of his state of mind.

37 The following day addresses commenced and concluded.

His Honour then summed up to the jury.

38 It is pertinent here to observe that, from what the appellant told Detective Winch in the interview (and from which, as he did not give evidence his defence was to be discerned), his response to the Crown case was that he neither massaged AT’s breasts nor used his finger(s) to penetrate her vagina. That is, it was that factual substratum of the Crown case that was in issue. He did claim that a sexual approach was made, but said that that was made by AT to him, and rebuffed – and rebuffed in a clear and unmistakable fashion. In those circumstances, no issue concerning the absence of consent arose. His Honour gave a conventional direction with respect to the Crown’s obligation to prove the absence of consent, and that the appellant knew that she did not consent. That was, even having regard to the appellant’s denial of any sexual conduct by him, a necessary direction. Absence of consent is an essential element of the offences.

39 His Honour then added:

“However, the law also provides that the accused will have the requisite guilty mind for the purposes of this offence if it is shown beyond reasonable doubt that the accused was reckless as to whether the complainant was consenting or not. If the Crown has in your opinion established beyond reasonable doubt that the accused had sexual intercourse with the complainant without her consent and that the accused was reckless as to whether the complainant consented to the sexual intercourse then it is the law that the accused will be taken to know that the complainant did not consent to the sexual intercourse.

To establish that the accused was acting recklessly the Crown must prove beyond reasonable doubt that the accused’s state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not.

Now you might ask how the Crown can prove that the accused was aware that the complainant did not consent or was reckless as to whether the complainant was consenting or not without an admission from him. The Crown asks you to infer or conclude from other facts which are set out to prove that the accused must have known and that he indeed did know or that at the very least was reckless as to whether the [complainant] was consenting or not.

That is to say, the Crown asks you to draw an inference from established facts, which it says the evidence of the complainant has established, that the accused must have known and did know that the complainant was not consenting, or at the very least was reckless as to whether the complainant was consenting or not and went ahead regardless.” (italics added)

40 His Honour then referred to AT’s account of the salient events.

The appeal

41 Two grounds of appeal against conviction are pleaded. They are:

“Ground 1: there was a miscarriage of justice because the learned trial judge erred in giving a direction to the jury on recklessness as to consent;

Ground 2: the trial judge failed to give an adequate Murray direction to the jury.”


The “Murray direction” to which reference is made in ground 2 is a direction in accordance with R v Murray (1987) 11 NSWLR 12 at 19. I will return to this.

Ground 1: recklessness

42 As is plain from the quite lengthy extract from the directions to the jury (above), the issue of recklessness arises in the context of a trial in which the absence of consent is a live issue. Recklessness is peculiarly related to the question of consent. Where an accused simply denies that intercourse took place, consent is not an issue, and the question of recklessness is irrelevant: see R v Henning (NSWCCA, 11 May 1990, unreported). As I have mentioned above, however, the absence of consent is an essential element in the offence, as is the accused’s knowledge of the absence of consent; both must be proved, to the requisite standard, by the Crown.

43 Here, on the extracts from the interview above, it may be seen that the appellant’s position was that, notwithstanding AT’s attempted seduction of him, he declined her invitation and his hand did not come in contact with her vagina. Since the appellant did not give evidence, that remained the issue so far as he was concerned.

44 However, as I indicated earlier, it is necessary to consider the manner in which AT was cross-examined. I will extract some of that cross-examination:

“Q. You told us yesterday that when he commenced massaging that area, that you were a bit surprised?
A. I was surprised, yes.

Q. And you told us that you were uncomfortable?
A. I said it wasn’t something that I expect in terms of the massage on the abdomen.

Q. And you also said you didn’t mention anything because you thought it will probably be similar to the one that you had in Thailand, is that correct?
A. Yes that’s right.

Q. You had agreed to participate in a de-stressing or relaxing massage to finish off the session, that’s how you’ve described it?
A. Yes.

Q. And when you agreed to that, did you ask him ‘What do you mean?’
A. No.

Q. Or did you ask him ‘What are you going to do?’
A. No.

Q. What did you expect him to be doing when you agreed to finishing off with relaxing massage, what did you think was going to happen?
A. Something similar to like Aromatherapy, a massage that you get from the … therapy, something gentler.

Q. And whereabouts did you think that was going to take place?
A. Just over the same area he was massaging for the remedial massages

…

Q. You then say that following that massage, massage of that area, he removed, or what do you say he then did after that?
A. He removed the top towel.

Q. And that’s when you say he proceeded to massage your upper chest area, is that correct?
A. Yes.

Q. I think you said ‘he started massaging my breast and nipples’, is that right?
A. Yes.

Q. And you say that he then covered that area again and then what did he do?
A. Then he exposed my --- the lower towel.

Q. And you say that’s when he did what he did with his hand in your vagina, is that right?
A. Not initially.

Q. But certainly it was after that that you say he inserted ---
A. Yes.

Q. --- in your vagina. Just in terms of the sequence of events, when he was first touching you on the abdomen and it made you feel uncomfortable, why didn’t you tell him to stop at that stage ?
A. Because like I said before, I assumed that maybe he was doing a massage similar to the one that I had in Thailand.

…

Q. All right. But despite the fact that you say you felt uncomfortable when he was touching your abdomen you were prepared to allow him to continue, is that correct ?
A. I gave him the benefit of the doubt because I assumed at that stage that maybe it is something similar to the one in Thailand.

…

Q. So you gave him the benefit of the doubt at that stage ?
A. Yep.

Q. And then you say after that that he then removed the towel from your upper chest area and commenced to massage your breasts and nipple, is that correct?
A. Yep.

Q. But that would be the time when any benefit of the doubt would have been removed from your mind, would it not ?
A. It should have and it would have but because again I’ve had that similar in Thailand with this female masseuse.

Q. I suggest that would be the time to say something to this male masseur not in Thailand but here .
A. I agree that I should have said something at that stage but at that point in time because I didn’t want to misunderstand the whole situation I gave him a lot more benefit of the doubt than I should have looking back now.” (italics added)

45 Counsel then went on to put to AT, explicitly, the account given by the appellant to Detective Winch in the interview. That was, categorically, a denial of the central allegations made by AT and an assertion that she herself had initiated a sexual encounter, which the appellant had rejected.

46 However, the cross-examination extracted, particularly those passages italicised, has the flavour of suggesting that AT had in fact consented to what the appellant did, or, at the very least, had given him reason to believe that she was consenting. The challenges to her concerning her silence may well have been taken by the jury as a suggestion that she had, at least, acquiesced in what he was doing, or had given him reason to believe that she was acquiescing. When that is put together with the appellant’s account, not only a denial of the complainant’s allegation, but a counter allegation against AT that she had sought to initiate sexual activity, the issue of consent may well have been in the jury’s minds. If so, then it was in order for the trial judge to give that direction.

47 In R v Henning, the Court said that recklessness ordinarily arises only where there is:

“a possibility of ambiguity in the signals of consent or non-consent emanating from the complainant or arising from the circumstances”.

48 Ambiguity may also arise from the conduct of the defence. Here, there was the possibility of such ambiguity arising from the cross-examination.

49 The direction did no more than settle any question that may have lingered as a result of that possible ambiguity. It did no harm to the appellant’s defence.

50 If the issue of consent had not been raised in any fashion, then the direction on recklessness was superfluous, and better not given. However, it was not erroneous to give such a direction, and I do not think that any confusion has been caused.

51 I would reject this ground of appeal.

Ground 2: a “Murray” direction

52 The passage from Murray, in the judgment of Lee J, upon which reliance was placed is in the following terms:

“In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable.

There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside …”

53 It is necessary to return to the summing up in order to ascertain the directions that were given.

54 At the conclusion of the evidence, and before counsel addressed, the judge noted that the Crown case depended upon the evidence of AT and asked defence counsel if he sought a direction in that respect. Not surprisingly, defence counsel said that he did.

55 The summing up contained several passages in which the jury’s attention was drawn to the need carefully to consider AT’s evidence and to convict only if satisfied that she was truthful and accurate. At p 10, he said:

“You may only proceed to do so [ie convict] if, after having considered carefully the evidence of the complainant, you are satisfied beyond reasonable doubt that she was truthful and accurate when she said that the accused inserted his finger into her vagina without consent and that he did so knowing that she was not consenting.

In other words you may only find the accused guilty if satisfied that the Crown has established each of the essential ingredients of the offence charged and you may only reach that conclusion if you accept as truthful and accurate beyond reasonable doubt the evidence of the complainant upon which the Crown case depends.”

56 At p 16, he said:

“You have heard already that this is a case that depends upon the evidence of the complainant and her evidence is what we might refer to as direct evidence that there was penetration of her vagina by the accused using his finger.”

57 At p 23 he repeated:

“Let us look at how the Crown presents its case.

The Crown case depends upon the evidence of the complainant. Before you may find the accused guilty of this offence you must be satisfied beyond reasonable doubt that she was both truthful and accurate when she said that the accused inserted his finger into her vagina. Even though you might put to one side the explanation of the accused, it remains that you may not convict the accused unless you are satisfied beyond reasonable doubt that the complainant was truthful and accurate in her evidence, that he penetrated her vagina with his finger, and that it was without her consent, and that it occurred in the circumstance as she described them …”

58 At p 27, while referring to the address of counsel for the appellant, he said:

“… much of the evidence from these two people is consistent; that is, much of what the complainant had to say and much of what the accused said to you in the interview is consistent when compared, and where they do diverge you need to consider carefully the evidence of the complainant.

It is not a question of choosing which account you prefer where they diverge. [Defence counsel] correctly pointed out that you may not find the offence proved beyond reasonable doubt unless you accept beyond reasonable doubt the description of the event given by the complainant, regardless of whatever view you might take of the explanation given by the accused. If you accept his account in the interview, he is not guilty. If you do not accept his account in the interview, it does not follow that he is guilty. You must still look to the evidence of the complainant to determine whether it persuades you that he is guilty beyond reasonable doubt.”

59 At the conclusion of the summing up defence counsel raised again the question of “a Murray direction”. There followed some discussion, after which his Honour declined to add to what he had said.

60 The jury retired at 12.11pm. At just before 3pm they sent a note to the judge, asking for an explanation of “the 10 minutes of your summing up”.

61 The jury returned to the court and the judge told them that he took this to mean the last 10 minutes of his summing up and said that it covered “a fair bit of ground” and asked the jury to clarify (in writing) the precise topic they wished to have addressed. Without committing the question to writing, the foreperson said:

“There is a little bit of difficulty [in] trying to interpret what we really want to ask and to put it into writing as such. That’s why if the court will not – do the last five minutes or ten minutes.”

62 His Honour then outlined the topics which had been the subject of the final part of the summing part. The foreperson said:

“It’s around the validity one places on the evidence if you’re lacking true physical evidence as to the person who has made a complaint. If there is no – or we can’t decide on whether the physical evidence, whether it’s good, bad or indifferent –”

63 The judge said that he thought he understood the point, and said that he would attempt to formulate for the jury (in consultation with counsel) the question as he understood it.

64 There followed a discussion, in the absence of the jury, with counsel, during which defence counsel took the opportunity of inviting the judge to remind the jury of:

“… what was previously said about scrutinising the single witness’s evidence with care.”

65 His Honour then formulated a question, and the jury returned. His Honour said that the question, as he perceived it, was:

“Of what significance is the absence of any physical evidence to corroborate the evidence of the complainant?”

66 He then asked the jury to retire and consider if that represented the question they intended to ask. The jury retired, and sent a further note, in which they replicated the question formulated by his Honour. His Honour answered the question by saying it was not necessary that there be physical evidence to corroborate the complainant.

67 The essence of the complaint now made is that, notwithstanding the strength of the directions extracted above, his Honour failed to direct the jury’s attention to the need to “scrutinise” or “examine” the evidence of AT, by bringing a critical mind to bear upon it.

68 Particular reference was made to that answer of the complainant’s (extracted above) in which she said that she pushed his hand away and told him to stop, and that he had turned away with his fingers still inside her. This, it was contended, contained an internal contradiction and ought to have been the subject of a specific direction.

69 In my opinion, no particular form of words is necessary to comply with what is said to be a requirement prescribed by Murray. For myself, I doubt that Lee J, in Murray, was intending to be prescriptive about the precise words to be used; his Honour referred to what is “customary” but did not suggest that such a direction is mandatory. Certainly, he did not suggest that the use of a word such as “scrutinise” is mandatory. In the passage immediately preceding that quoted, he referred to the practice of stressing to the jury the necessity:

“… to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case.”

70 That is precisely what Bennett DCJ did in this case.

71 The jury could have been under no misapprehension about the centrality of the evidence of AT to the Crown case, nor to the standard to which the Crown was obliged to prove the case.

72 In my opinion the directions given by his Honour were more than adequate to draw to the jury’s attention to what their task entailed. It was not necessary to say more about the answer that was said to be contradictory. Counsel for the appellant at trial addressed the jury at some length on what were asserted to be inconsistencies in her account of the events.

73 I would reject this ground of appeal.

Application for leave to appeal against sentence

74 The appellant did not give evidence in the sentencing proceedings. His partner, Ms Judith Wallace, gave evidence and presented a written statement attesting to his character and conduct. Also before the Court were a number of other testimonials, a Pre-Sentence Report, and a psychological report.

75 Both reports noted that the appellant continued to maintain his innocence. That appears to have created something of a barrier for the psychologist, in particular, and also the author of the Pre-Sentence Report, who suggested that sentencing be adjourned for further examination of the appellant by forensic psychology services. This his Honour declined to do.

76 The character evidence portrayed the appellant as a gentle, caring man, who had contributed in a concrete manner to various good causes, and who was dedicated to personal development.

77 He was born in New Zealand, in May 1957, and was almost 50 at the time of the offences. He has no prior convictions.

78 He initially trained in information technology, but took up massage therapy in about 2004 following retrenchment from his then employment. He purchased the business at Ryde and operated it, apparently successfully, until his arrest, when he sold it.

79 He was married at age 22. Two daughters were born, but the marriage failed after 13 years. From about 1993 he has had sole care of both daughters, now adults. At the time of the offences one of them was living with him.

80 His own personal and psychological history is unremarkable. There is a suggestion that his father suffered from bi-polar disorder, but this does not appear to have impacted significantly upon the appellant or the family life. He has, since his conviction on the first count, made two attempts on his own life, but abandoned each. The psychological reports suggested that he has adjusted reasonably and surprisingly well to his present incarceration.

81 The maximum penalty fixed for the indecent assault offence is imprisonment for 5 years. The maximum penalty fixed for the sexual intercourse without consent offence is imprisonment for 14 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“Sentencing Procedure Act”) a standard non-parole period of 7 years is prescribed. By s 54A(2) that sentence represents the non-parole period for an offence in the middle of the range of objective seriousness. By s 54B(2), a court sentencing an offender is required to impose the standard non-parole period unless it determines that there are reasons for not doing so. One circumstance that permits departure from the standard non-parole period is that an offender has pleaded guilty to the charge. That is of no present application.

82 Another circumstance that permits departure from the standard non-parole period is that the offence falls outside (either above or below) the middle of the range of objective gravity. Here Bennett DCJ found that the sexual intercourse offence fell below the mid-range of objective gravity; that was sufficient to permit departure from the standard non-parole period. In addition, he considered that the otherwise favourable personal circumstances of the appellant also warranted departure.

83 His Honour gave consideration to the aggravating and mitigating features spelled out in s 21A of the Sentencing Procedure Act; he found only one aggravating feature, that identified in s 21A(2)(k), that the offence was committed in breach of trust.

84 He found several mitigating features. He accepted that the offence was unplanned and ought to be seen as opportunistic, and the product of inappropriate (sexual) arousal during the course of the massage (this is a little difficult to reconcile with the appellant’s invitation to AT, at the commencement of the massage, to remove her underwear, but there is no challenge to the finding, and it is unnecessary to say more about it). His Honour accepted that the appellant was a person of previous good character and that he has good prospects of rehabilitation; he anticipated that his career as a massage therapist will be lost to him.

85 He found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the ratio between the head sentence and the non-parole period there specified. He rejected a submission made by the Crown that there ought to be some degree of accumulation.

86 Accordingly, he proceeded to impose the sentences mentioned above (on the sexual intercourse offence, imprisonment for 4½ years with a non-parole period of 2 years; on the indecent assault offence, imprisonment for a fixed term of 2 years) which he ordered to be served concurrently.

87 As I have mentioned above, there is no application for leave to appeal against the latter sentence.

88 On behalf of the appellant it was argued that the sentence on the sexual intercourse offence is manifestly excessive. Heavy reliance was placed upon two decisions of this Court, each of which involved conviction, after jury trial, of massage therapists for sexually assaulting clients.

89 The first in time of these was R v Porteus [2003] NSWCCA 18. There, the offender was found guilty of two counts of sexual intercourse without consent, on two separate victims. On the first charge he was sentenced to imprisonment for 18 months and on the second to imprisonment for 4 years with a non-parole period of 18 months, the sentences to be served concurrently.

90 The offender appealed against conviction but the appeal was dismissed. He also sought leave to appeal against the sentence. Leave was refused. It is true, as counsel for the appellant pointed out, that the offending conduct in Porteus was significantly more serious than that in the present case. The offender performed fellatio upon two different clients on two different occasions.

91 The judgment in Porteus, so far as the sentence appeal was concerned, was pithy. That was because that appellant acknowledged that he could not identify any sentencing error and that the sentences were within range. He submitted that the sentences were “in the upper range” and that the court could bear in mind good character and the fact of the consequence of conviction. Giles JA held that, in the absence of a sentencing error or undue harshness, no ground for intervention had been made out.

92 There was no finding that the sentences were, or either of them was, at the upper end of the range. There is insufficient evidence in the report concerning the offender’s personal circumstances to enable any conclusions to be drawn, other than that, as was conceded, the sentence was within range. However, that offender was sentenced under the sentencing regime that applied before the introduction of Pt 4 Div 1A into the Sentencing Procedure Act.

93 The second decision upon which reliance was placed is R v Qin; Qin v R [2008] NSWCCA 189. In that case, another masseur took advantage of a female client’s vulnerability. He was charged with four counts; three were of indecent assault, one of sexual intercourse without consent, and one count of indecent assault was presented as an alternative to the sexual intercourse offence. As was conceded by counsel for the appellant, the nature of the conduct was less serious than in the present case, and did not involve digital penetration. The judgment Qin makes it clear that the offender was convicted of two counts, and acquitted of one. I infer that he was acquitted of the sexual intercourse without consent, but convicted of the alternative, indecent assault. I draw that inference because there is no reference, in the judgment, to the standard non-parole period prescribed under Pt 4 Div 1A of the Sentencing Procedure Act, which would have operated had the offender been convicted of the more serious sexual intercourse charge.

94 That offender was sentenced to a non-custodial penalty; a 10 month term of imprisonment was suspended pursuant to s 12 of the Sentencing Procedure Act. He had previously been found guilty (but not convicted) of indecent assault. The information as to the detail of the prior offence was scanty but it appears to have involved “a brief placing of a hand upon the (clothed) breast of a 17 year old customer”. The gravity of that offence can probably best be gauged by noting that, after appeal, no conviction was entered and the offender was required, pursuant to s 10 of the Sentencing Procedure Act, to enter into a bond to be of good behaviour for one year.

95 Although reliance was placed upon the fact that the offender in Qin had a previous history, those circumstances do not suggest that great weight should be attached to it.

96 More importantly, the proceedings in this Court were a Crown appeal against what was asserted to be the manifest inadequacy of the sentence.

97 The sentencing judge expressly found that the seriousness of the conduct was almost at the extreme lowest level of gravity; this Court found that this conclusion was not wrong and was within the ambit of the sound exercise of the sentencing judge’s function. The sentencing judge had also spoken of “minimal degree of physical interference involved”.

98 McClellan CJ at CL, who agreed with Grove J, said that a more severe penalty could have been appropriate but that which was imposed was not one in which the Court should intervene, having regard to the principles then applicable to a Crown appeal.

99 These cases are, accordingly, not of great assistance in demonstrating that the sentences imposed upon the appellant were manifestly excessive. Reference was made also to other cases, including Baldwin v Ridge [2003] TASSC 67. In my opinion sentencing practices in other jurisdictions are of limited assistance. I am not persuaded that the sentence imposed was outside the range legitimately available to his Honour. It is of some considerable importance that the non-parole period imposed was less than one-third of the standard non-parole period.

100 I would grant leave to appeal but dismiss the appeal against sentence.

101 The orders I propose are:

(i) Appeal against conviction dismissed;

(ii) Leave to appeal against sentence granted, appeal dismissed.

102 FULLERTON J: I agree with Simpson J.

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