Sharwood v R

[2006] NSWCCA 157

CITATION:	Sharwood v Regina [2006] NSWCCA 157
HEARING DATE(S):	13/04/2006
JUDGMENT DATE:	24 May 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Hoeben J at 2; Johnson J at 79
DECISION:	Leave to appeal against sentence and appeal allowed. Applicant re-sentenced to lesser term.
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - aggravated indecent assault contrary to s61M(1) Crimes Act 1900 - failure to call analysts who carried out DNA tests - point conceded at trial - rule 4 of Criminal Appeal Rules - application to discharge jury - no risk of substantial miscarriage of justice - application for leave to appeal against sentence - incorrect maximum penalty relied on - whether offences "in middle range of objective seriousness" - evidence of extra curial punishment - principles of totality and proportionality in respect of sentences awarded.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Crofts v The Queen (1996) 186 CLR 427 at 440-441 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 R v Daetz and Wilson (2003) 139 ACrimR 398 R v Davies [2004] NSWCCA 319 R v Edwards (1996) 90 ACrimR 510 R v Kneebone (1999) 47 NSWLR 450 R v Reynolds (CCA, unreported, 3 July 1992) R v SG [2003] NSWCCA 220 R v Sing (2002) 54 NSWLR 31 at [34-35] R v Way (2004) 60 NSWLR 168 Siganto v The Queen (1998) 194 CLR 656 at 663 Skipworth v Regina [2006] NSWCCA 37
PARTIES:	Wayne Robert Sharwood - Appellant Regina - Respondent
FILE NUMBER(S):	CCA 2005/1839
COUNSEL:	Ms G Bashir - Applicant Mr P Barrett - Respondent Crown
SOLICITORS:	SE O'Connor - Legal Aid Commission of NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0470
LOWER COURT JUDICIAL OFFICER:	Kinchington ADCJ

2005/1839

McCLELLAN CJ at CL
HOEBEN J
JOHNSON J

Wednesday, 24 May, 2006

Wayne Robert SHARWOOD v REGINA

Judgment

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

2 HOEBEN J:

Charges and sentence
The appellant stood trial on five counts of aggravated indecent assault, contrary to s61M(1) Crimes Act 1900 before Acting Judge Kinchington and a jury. The trial took place between 23 August and 6 September 2004. The circumstances of aggravation were that the complainant was under the age of sixteen, ie ten years old. The offences took place on the night of 13 April 2003 when the complainant stayed at the appellant’s home as a guest of his daughter, who was also ten years old. On 6 September 2004 the jury returned verdicts of guilty on all five counts. The appellant was refused bail on the return of verdicts.

3 The offences each carried a maximum penalty of 7 years and were subject to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (the standard non-parole provisions). Section 54D specified a standard non-parole period of 5 years imprisonment for an offence contrary to s61M(1).

4 On 17 December 2004 the appellant was sentenced to periods of imprisonment as follows:

Count 1: 3 years fixed term to date from 6 September 2004, expiring 5 September 2007.

Count 2: 3 ½ years fixed term to date from 6 September 2004, expiring 5 March 2008.

Counts 3 and 4: 4 ½ years fixed term to date from 6 September 2004, expiring 5 March 2009.

Count 5: A non-parole period of imprisonment of 5 years and 4 months to date from 6 September 2004, expiring 5 January 2010 with a balance of sentence of 2 years and 2 months expiring on 5 March 2012.

5 The appellant has appealed against his conviction and has also sought leave to appeal against his sentence.

Factual background

6 The complainant and the appellant’s daughter, N, were close friends. N had slept at the home of the complainant on prior occasions and the complainant had slept at the appellant’s home in the past without incident. On the night of 13 April 2003 the complainant was sleeping over at the appellant’s home and in the bedroom of N. She slept on a mattress on the floor next to N’s bed.

7 It was the complainant’s evidence that after she and N had fallen asleep that night, she awoke to the appellant touching her with his hand underneath her boxer shorts and on the outside of her underwear on her vagina (count 1). The appellant left the room and returned, repeating this action and telling the complainant not to worry and that everything would be OK (count 2). He then left the room and returned and repeated the action again (count 3).

8 On the occasion of the third incident, the appellant had taken the complainant’s hand and placed it on his penis and made her move it up and down (count 4). He then left the room. The complainant got up to go to the toilet and when she returned, the appellant was lying on the floor next to the bed. He did not have any pants on. She lay on the mattress and he pushed his penis against her back (count 5). The appellant then left the room and did not return. The length of time over which these incidents had occurred was approximately one hour.

9 N did not wake up, nor did she hear anything. The complainant did not say anything until she arrived home at approximately lunchtime. She went to her room and then told her mother: “Wayne had been touching me and she asked me where and I said on my vagina”. After the complainant had had a shower she wrote down “he made me touch his penis”. She gave her mother the underpants, boxer shorts and top she had been wearing the night before. The mother put them in a bag together and gave them to the police.

10 Buccal swabs were taken from the complainant and the appellant so that DNA could be extracted. The complainant’s underpants were tested for DNA. Evidence was called as to the custody of those swabs and the underpants until they reached the Department of Analytical Laboratories at Lidcombe.

11 Virginia Friedman, a forensic biologist, gave evidence that the laboratory had carried out an analysis of the complainant’s underpants and DNA had been recovered from those underpants. Four biologists, not including Ms Friedman, carried out this analysis. Ms Friedman expressed the opinion that the most likely source of the male component of the DNA was skin cells. Although she was not able to say conclusively whether this was by direct contact or secondary transfer, she was of the opinion that the most likely way was by direct contact with the source of the DNA. This would include touching. Her findings were consistent with somebody rubbing a finger on an area of the underpants. The complainant’s top and shorts were not tested owing to time and financial constraints.

12 Ms Jennifer Burger, a forensic biologist from the Department of Health, gave evidence to the effect that the DNA recovered from the underpants could have come from the complainant and the appellant. Her assessment was that the DNA was 280 million times more likely to have come from the complainant and the appellant than from the complainant and an unknown, unrelated individual.

13 There were objections to Ms Burger giving evidence. Since these objections formed the basis for much of the appeal against conviction, I will deal with them in more detail later.

14 It was the evidence of Ms Burger that although she carried out the comparison of the DNA profiles, other persons in the laboratory namely a Ms Emma Griffiths, Ms Alice Storey, Mr Nguyen and a Mr Li performed the tests to produce the DNA profiles from the material extracted from the underpants. Ms Burger also gave evidence as to the system in place in the laboratory for maintaining the integrity of items received by it.

15 The appellant gave evidence denying all of the allegations. Apart from checking on the girls before he went bed, he denied any other entry to their room before morning. Although the appellant had some minor criminal matters on his record dating from the early 1990’s, he was otherwise of good character. He agreed in cross-examination that in April 2003 he had been under considerable stress because of his wife’s breast cancer. He agreed that his wife’s illness prevented their having normal marital relations at that time.

16 The appellant’s wife gave evidence. She was diagnosed with breast cancer in January 2003 and in February 2003 had undergone a mastectomy on her left breast. She had thereafter been treated with chemotherapy to which she had had a poor reaction, being admitted to hospital on two occasions. She used to sleep in a special way with her left arm resting on the appellant and did so on this night. She was a very light sleeper. She was unaware of the appellant having left the bed at any time during the night and was unaware of the complainant having gone to the toilet during the night.

17 N gave evidence that during the night she woke up because the complainant was snoring. She rolled the complainant over and the snoring stopped. She was a light sleeper. She did not hear anything during the night. She did not hear the complainant go to the toilet.

18 There was evidence of the complainant’s clothing being left in various parts of the bedroom and on the bed. The significance of this evidence was that this might have accounted for the presence of the appellant’s DNA.

19 Mr Brian McDonald, a pathologist, gave evidence on behalf of the appellant. The effect of his evidence was that there was a large amount of DNA found for this kind of sample. It had not been established that skin was the source of the DNA on the underpants, but that this had been assumed. Touching with fingers was a possible source of the DNA found on the underpants, but the amount of DNA indicated a high yield source and skin was not high yield. If there was no direct touching the underpants would have had to come in contact with a high yield source such as a toilet seat or vanity, ie a surface where the appellant’s skin cells had been deposited.

Appeal
Ground 1: The learned trial judge erred in admitting evidence and failing to withdraw the evidence from Ms Burger concerning the results of DNA tests

Ground 2: The learned trial judge erred in failing to direct the jury as to the limited weight of the “DNA evidence” and in erroneously directing the jury as to the “DNA evidence”.

Ground 3: The learned trial judge failed to fully and fairly leave the defence case to the jury.

20 These grounds of appeal were dealt with together by the appellant. The substance of the submissions was that objection had been taken at trial to the evidence of Ms Burger. The objection at trial related to the continuity of custody of the exhibits and the integrity of the material forming the basis for the expression of the likelihood ratio. It was submitted that the latter basis included the fact that four analysts had carried out tests on the underpants, their results then being given to Ms Burger for an interpretation, but those analysts were not called. It was submitted that in those circumstances Ms Burger should not have been allowed to give evidence since she had nothing to do with the processes which produced the analyses upon which she based her opinion.

21 It was submitted that allowing this evidence was unfair to the appellant since his counsel could not test the evidence of those analysts who were not called. This had produced a fundamental injustice such as was referred to in R v Sing (2002) 54 NSWLR 31 at [34-35]. There Hodgson JA, with whom Levine and Howie JJ agreed, said:

“34 Whatever is the correct answer to the hearsay question, I think there is substance in the appellant’s complaint that to admit evidence like that of Mr Weigner and/or Mr Goetz over objection, without the evidence from the persons who actually carried out the procedures that resulted in the print-outs, and indeed without any evidence that there was any difficulty in calling these persons, involved unfair prejudice to the appellant. It may be that these persons would have no recollection of exactly what they did and would have to rely on records; but that is not generally sufficient justification for not calling, in a criminal prosecution, a witness involved directly in a significant part of the prosecution case.
35 Counsel for the appellant at the trial said he had an expert present in court for the purpose of assisting him with questions to be put to the persons who actually carried out the procedures, and I think this Court should proceed on the basis that there were relevant questions which the appellant’s counsel wished to put to these persons if they had been called. There is an obligation on the prosecution to call available witnesses of events alleged to constitute the offence and of essential parts of the prosecution case, at least unless there is some justification for not doing so: see for example R v Kneebone (1999) 47 NSWLR 450. I think this does extend to witnesses such as those in this case dealing with important links in the prosecution case. Particularly since DNA evidence can be so compelling, I do not think the matter of the correct carrying out of testing procedures should normally be proved, over objection, merely by evidence of the existence of the procedures and the giving of instructions, and otherwise left to inference. If for any reason the persons who actually did the work are unavailable, there may be justification for such a course. But there is no suggestion of that here.”

22 It was submitted that allowing the evidence of Ms Burger without also calling the evidence of the analysts, who had carried out the tests upon which her opinion was based, contradicted the principle in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, ie that the facts underlying the opinion had not been proved.

23 Certificates from the analysts had been served pursuant to s177 of the Evidence Act. No written notice was given by the appellant before the commencement of the trial that objection would be taken to those certificates. The first indication that there may be such an objection occurred at the commencement of the trial during the opening by the Crown when defence counsel indicated there would be objection to the DNA evidence. Formal objection to the analysts’ certificates was not made by defence counsel until day six of the trial (T.171). Objection was taken to the tender of the certificates before the evidence of Ms Burger was taken.

24 Contrary to the submissions of behalf of the appellant I am not persuaded that any objection was taken to the scientific processes used by the analysts to produce the results relied upon by Ms Burger. At all times the objection taken related to the continuity of the custody of the exhibits, in the context of those exhibits being contaminated in some fashion while being processed in the laboratory. There was never any challenge to the methodology of the analysis and the scientific processes used in relation thereto. This is clear from a number of exchanges between defence counsel and the trial judge:

“Defence counsel: Your Honour in relation to the DNA sample taken from the accused, there was evidence given by the various persons, Constable Thomas, the people from TNT in relation to the transport to the laboratories and Eric Hagarty from TNT handed the TNT Failsafe bag to the lady analyst Kavianifir, who says she put it into a tray. We don’t know what happened from that point on until the material was analysed by this witness and the same applies to the DNA sample from EP, when Mr Hagarty on 2nd September 2003 does much the same thing. He hands it to a person known as R Woods. We don’t know what happened to it after that. In respect of the clothing your Honour the evidence of Virginia Friedman, analyst from the laboratory, she said that not only did she handle the clothing, but there was also a person named Nguyen, a person named Griffith, a person named Stacey and there’s just no evidence as to how it came into the hands of the analyst your Honour.”
“Defence counsel: After it reaches the laboratories, between when it reaches the laboratories, there’s no evidence about what happened to it after that or who’s responsible for the – we’ve got names of these other three persons who dealt with the exhibit and there’s just no evidence of it. I think that applies to the two DNA samples and the clothing where other persons – it’s in the report your Honour – and other persons assisted in the processing and analysis of the items.”
…

“Defence counsel: Your Honour the chain of possession is not complete. The exhibits turn up at the laboratories but there is no evidence at all between then and when the analysis is carried out.”

…
“Defence counsel: Well there’s still a break in the chain your Honour.”
“HIS HONOUR: But when you say there’s a break in the chain, what, at the analytical laboratories?”
“Defence counsel: Yes”. (T.166-168)
“Defence counsel: No your Honour if this witness intends to give evidence, and she certainly does, evidence about the DNA being this accused’s DNA and also in relation to the clothing, I’m objecting to that. Until the continuity of possession is established your Honour, that may well happen, but all these witnesses that are being called to prove continuity of possession …”
“HIS HONOUR: This witness is not being called to prove continuity.
Defence counsel: No.
HIS HONOUR: It may be part of that she examined items, it’s going to be what she found on those items.
Defence counsel: Yes but the gap in between the delivery to the Department of Analytical Laboratories …
HIS HONOUR: From the Analytical Laboratories having reached there …
Defence counsel: And her examining it, there are at least three other people that examine the exhibits as well.” (T.172)
“Defence counsel: Your Honour this evidence of Ms Burger really doesn’t assist the court in relation to the continuity of possession that has been challenged. She’s reading from the …
HIS HONOUR: Why not?
Defence counsel: The document. Your Honour she’s talking about the processes carried out, the scientific processes carried out. There is no real argument about that. It’s the possession. We want to know …
HIS HONOUR: She’s accounted for the possession, I mean …
Defence counsel: With respect your Honour it’s my submission that she hasn’t.” (T.174)
“Defence counsel: Your Honour the Crown is aware that it needs to prove continuity of possession and it’s done very well up to the point where it reaches the Department of Analytical Laboratories and it’s my submission your Honour that this evidence does not assist the court in respect to the continuity of possession.” (T.175
“Defence counsel: Yes. I can’t take it any further your Honour. It’s my submission that the continuity of possession after these items reached the analyst, has not been established. It may, I don’t know, the Crown’s probably got access to witnesses who can establish it fairly simply but your Honour the objection to the admissibility has been taken and as I said the Crown has done very well in establishing continuity up to that point in time.” (T.176)
“Defence counsel: Your Honour could I just say one thing, I would imagine after the years and years that laboratories have been in existence and these problems that have obviously been challenged before, there would be one person at the Department who could give the evidence. I’d be a hundred percent certain of that your Honour and just one witness can probably given all of the evidence that’s required in relation to the security arrangements within the laboratories and that I imagine would take about all of five or ten minutes.
HIS HONOUR: I would imagine this witness can give all that if she’s asked questions.” (T.177-178)

25 Following those exchanges, Ms Burger gave evidence that she was the senior analyst in charge of the sexual assault division of the laboratory, a position she had occupied for three years, and that she had been an analyst working in the various parts of the laboratory and carrying out its processes for fifteen years. She gave evidence of the processes and procedures carried out by the laboratory and of all the steps and stages in obtaining the DNA profile from the exhibits in this case.

26 His Honour subsequently ruled in favour of the Crown in relation to the admissibility of the evidence of Ms Burger. It is clear from his Honour’s judgment (delivered 27 August 2004) that the only issue between the parties was the continuity of possession of the exhibits before they were examined for DNA profile. On the authority of R v Reynolds (CCA, unreported, 3 July 1992) his Honour determined that Ms Burger was able to give evidence as to what the practice of the laboratory was in relation to maintaining the integrity of exhibits which were entrusted to it for examination and that it was a matter for the jury as to whether they were satisfied in the particular case that the integrity of the exhibits had been maintained.

27 The cross-examination of Ms Burger by defence counsel is instructive. She was cross-examined about security within the laboratory and the procedures for securing exhibits at the point of entry to the laboratory. She was then questioned in detail about the possibility of transfer of DNA onto the complainant’s underpants from sources other than direct contact with the appellant’s hands. In other words she was cross-examined in detail about possible innocent explanations for the presence of DNA emanating from the appellant. No question was directed at the analytical processes.

28 Similarly, the evidence of Dr McDonald dealt with the quantification of the DNA and included a lengthy and detailed examination of the possible transfer of DNA from sources other than the appellant, such as contact with a toilet seat, vanity basins and similar locations. The gist of his evidence was the possibility of innocent contamination of the underpants with the appellant’s DNA. There was no evidence relating to or challenging the procedures carried out within the laboratory for extracting DNA.

29 Apart from Mr Nguyen, who was overseas, the analysts who actually carried out the DNA analysis could have each given evidence and been tested about the procedures which they used in extracting DNA from the underpants and from the buccal swabs of the complainant and the appellant. There was no suggestion in the evidence of Dr McDonald or in the cross-examination of Ms Burger that there was any issue relating to the procedures within the laboratory for extracting DNA from the exhibits.

30 That there was no issue relating to the scientific processes of extracting DNA from the exhibits was made clear by defence counsel when he said:

“Your Honour she’s talking about the processes carried out, the scientific processes carried out. There is no real argument about that. It’s the possession.” (T.174.36)

31 It follows that the point now taken that the DNA evidence was not admissible because evidence had not been called as to the scientific processes used to extract it from the exhibits was not a point taken at trial. Not only was the point not taken at trial, it was expressly conceded. The point taken at trial was whether or not the evidence was admissible because continuity of possession and lack of contamination had not been established once the exhibits had reached the laboratory. That was a matter correctly left to the jury. By leaving it as a jury matter defence counsel was able to submit with force to the jury that there was a significant gap in the Crown’s case in relation to the DNA evidence.

32 The fact that the scientific processes by which the DNA was extracted were not challenged or in question, distinguishes this matter from R v Sing. There the court assumed that there were relevant questions which the appellant’s counsel wished to put to the persons who carried out the scientific processes and it was unfair for those persons not to be called so as to enable those questions to be put. Such unfairness did not arise here because there was no issue relating to the carrying out of the scientific processes in the laboratory.

33 The principle in Makita (Australia) Pty Limited v Sprowles was not breached. The basis of Ms Burger’s opinion was clearly identified, ie the results of tests carried out by the nominated analysts. The results of those tests were not challenged or in issue insofar as they were correctly carried out. The only question in issue was whether the exhibits which had been tested in the laboratory had become contaminated whilst in the laboratory. Not only were the test results per se not in issue but s70 of the Evidence Act being an exception to the hearsay rule enabled Ms Burger to give evidence as to the articles provided to her within the laboratory by reference to the labels and identification upon them.

34 Although counsel for the appellant submitted that these objections were taken at trial, I do not agree. It is apparent from the exchanges between his Honour and defence counsel, and from the other material to which I have referred that the issues now being raised on appeal are different from those raised at trial. No specific request was made for redirection by his Honour along the lines now raised in the appeal. For those matters to be properly raised on appeal, leave is required and the Court has to be persuaded to apply rule 4 of the Criminal Appeal Rules. It is only if an identified error in the summing up has caused a miscarriage of justice that such leave will be granted. The onus of establishing such a miscarriage of justice lies upon the appellant. It seems to me taken as a whole the directions given by the trial judge in relation to the DNA evidence were fair and appropriate and accorded with the issues which had been raised in the trial as matters in dispute. I am not persuaded to grant leave.

35 These grounds of appeal fail.

Ground 4: The learned trial judge erred in failing to discharge the jury in circumstances where a witness said three times in the presence of the jury that the appellant had been “alleged to have interfered with some young girls” and then stated “that he has been alleged to have abused two young girls”.

36 In order to understand the appellant’s submission, it is necessary to set out the evidence referred to. That evidence was given on the seventh day of the trial by John William Masters, a witness called to give evidence of good character on behalf of the appellant. The cross-examination proceeded as follows:

“Crown Prosecutor: You’ve, I take it, been briefed upon what the allegations are in relation to this court trial?
A. Yes I have.
Q. What do you understand the allegations to involve?
A. It is an issue for child protection, that he has been alleged to have interfered with some young girls.
Q. I’m sorry?
A. I believe he has been alleged to have interfered with some young girls.
Q. I understand that that’s your general understanding, but do you understand about this specific allegation?
A. I haven’t been informed of the specific allegation, of the specific event, no.
Q. You don’t know, you haven’t been told?
A. I’m aware of the allegation. I’m not aware of the specific actions that have occurred, no.
Q. What do you understand the accused is on trial for?
A. I understand that he is on trial for inappropriate behaviour towards some young girls that he’s been alleged to have abused, two young girls.
Q. In relation to EP, do you know that it is alleged that while she was on a sleep-over at N’s house, the accused came into the bedroom…
OBJECTION: …
Crown Prosector: Q. This trial is concerned with EP, that’s the name of the little girl involved, do you understand that?
A. Yes I do.
Q. Now you do, is that right?
A. Yes I do.
Q. The allegation is that one night E was having a sleep-over at her friend N’s house when the accused, it was his home as well?
A. Yes I am aware of that.” (T.280-281)

37 Shortly after that evidence was given, once it was transcribed, defence counsel asked for the jury to be discharged. This was opposed by the Crown. His Honour refused the application on the basis that he was not satisfied “that any prejudice has been caused to the accused by the evidence, the answers that he gave. In these circumstances I do not propose to discharge the jury.” (Judgment, 1 September 2004, p4.) His Honour based his determination on a finding that the evidence referred to “his understanding that the proceedings were about two young girls and nothing more. These proceedings are about one young girl and the Crown then took him to the extent of the allegations that would be made and sought his comment thereon”.

38 The following day there was a further application to discharge the jury and this also was refused by his Honour. In delivering that ruling (judgment, 2 September 2004) his Honour said:

“In the context of the whole of the evidence given by Mr Masters and while it has caused me some little concern, that in the context of these proceedings and my observations of the court during the time Mr Masters gave that evidence, I am satisfied that it would not have had and did not have any impact on the jury. Of course I do not know what impact it would have had on the jury but from my observations and my experience as a judge sitting now for many years, it did not appear to have any impact on anyone in the courtroom at the time. Certainly not on the jury.”

His Honour found that:

“In the context of this case and the context of his evidence the accused has not been prejudiced by the evidence in any way of Mr Masters.”

39 When dealing with this matter in his summing up to the jury (SU 48) his Honour said:

“John Masters talked about how long he had known the accused and as to the circumstances and he was asked questions about what he knew about the charges the accused faced in these proceedings. You might think and it is a matter for you to determine what you make of it but he knew in general terms what the proceedings related to, but they were very general. That he was not aware of the specific allegations that had been made against the accused by EP until they were spelt out to him in the course of the cross-examination by the Crown.”

40 It was submitted on behalf of the appellant that in accordance with Crofts v The Queen (1996) 186 CLR 427 at 440-441:

“The duty of the appellate court … is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether in the circumstances, the results of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence the conviction was inevitable?”

41 It was submitted, on behalf of the appellant, that this Court when it considered that evidence would conclude that there was a real risk of a substantial miscarriage of justice. The jury could only be left with an impression that the appellant had been accused of unlawful conduct with more than one young girl and that once that evidence was given it was virtually impossible for the trial judge to correct it.

42 I am not of the opinion that a refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. It would have been clear to the jury on day seven of the trial that the only matters with which they were concerned were the offences alleged against the complainant. The following question and answer would have made it clear to the jury that Mr Masters was simply mistaken in his understanding about what the trial was about.

“Q. Well what you do you understand what this accused is on trial for?
A. I understand that he is on trial for inappropriate behaviour towards some young girls, that he has been alleged to have abused two young girls.”

43 There is no evidence to that effect anywhere else, nor was there any suggestion in submissions of any other misconduct on the part of the appellant. In any event, the mistaken evidence of Mr Masters was not as to the fact of there being allegations against the appellant relating to misconduct with some young girls but as to his understanding. His Honour was correct to deal with the matter in a general way on the basis that it indicated a misunderstanding on the part of Mr Masters. It was not a matter which required the discharge of the jury.

44 This ground of appeal fails.

Ground 5 – The learned trial judge erred in admitting the evidence of “complaint”, in his directions to the jury as to evidence of “complaint” and the use they could make of this evidence

45 The basis of this ground of appeal was that the words “Wayne touched me” used by the complainant to her mother after she had returned home were too general and vague to be evidence of “complaint”. That evidence, it was submitted, should not have been admitted as evidence of “complaint”. It followed from that primary submission that his Honour’s subsequent use of that evidence in his summing up was incorrect.

46 Counsel for the applicant advised the Court that in view of the decision of this Court in Skipworth v Regina [2006] NSWCCA 37, particularly at [15], this evidence was admissible as evidence of complaint. Accordingly, counsel for the appellant did not press the ground of appeal.

Application for leave to appeal against sentence

47 The applicant came before his Honour for sentencing on 17 December 2004. At the commencement of his remarks on sentence, his Honour incorrectly noted that the maximum penalty provided by law in respect of each of the offences for which the applicant had been convicted, was 10 years imprisonment. It was in fact 7 years imprisonment. His Honour also noted the application of the 5 year standard non-parole period to those offences.

48 Having summarised the factual background to the offences, his Honour had regard to the subjective material adduced on behalf of the applicant. The applicant was a married man, then aged 39, having been born on 1 June 1965. He had one child, N. Although the applicant normally worked as a self-employed musician, at the time of the offences he was in receipt of a carer’s pension because he was looking after his wife who was recovering from breast cancer.

49 His Honour referred to the applicant’s minor criminal record which involved two convictions. His Honour proposed to have no regard to those matters and to treat the applicant as a person of good character. A number of persons had given evidence to the effect that the applicant was not only a good father and husband, but also a good friend and business associate. His Honour summarised the effect of that evidence as:

“You are a devoted family man who they regard as both honest and trustworthy.”

50 His Honour referred to the fact that the applicant had been in protective custody while in the prison system since 6 September and that he would be likely to spend the whole of his period of custody in that environment.

51 His Honour referred to the medical evidence to the effect that the applicant’s imprisonment would have an adverse effect on his wife’s health, not only in relation to her recovery from cancer, but also in relation to a depressive condition with which she had been diagnosed. His Honour noted medical opinion as to the adverse effect which the applicant’s imprisonment might also have upon his daughter, N. Dr Pickering, a psychiatrist, who saw the applicant while in custody was of the opinion that he was unlikely to re-offend.

52 Although his Honour referred to those subjective matters, he did not take any of them into account when passing sentence. Having referred to the fact that the applicant maintained his innocence and would not willingly participate in any sex offenders’ program while in custody his Honour said:

“In all the circumstances I have come to the conclusion that there is no material available to me that entitles me to come to the conclusion that you are entitled to any discount on the sentence that I must subject you to.”

53 On the basis that the applicant had been convicted of five separate and consecutive aggravated indecent assaults, and because his Honour regarded each offence as being of an escalating nature, his Honour was of the opinion that:

“Each offence calls for an increased penalty. Finding in this regard, I am satisfied that the last of those assaults can in these circumstances be characterised as being a little higher than the middle range of objective seriousness for this type of offence.”

54 His Honour accordingly passed the sentences, to which reference has been made [4], and it is to be noted that those sentences were partially concurrent and partially cumulative and that the non-parole period in respect of the last offence is slightly in excess of the standard non-parole period of 5 years, ie 5 years and 4 months. His Honour noted that in fixing the sentences he had taken into account that the applicant would be serving his sentences in a harsher environment than was ordinarily the case because he would be in some form of protective custody.

55 His Honour concluded his remarks on sentence as follows:

“Despite the subjective material herein and particularly in the absence of any remorse and contrition on your part, together with the fact that you have expressed strongly to the Probation and Parole officer that spoke to you that you are not prepared to seek or accept any professional help which one would ordinarily expect to be available while in custody to a person such as you, I am satisfied that the material herein does not allow me to come to the conclusion that special circumstances exist in your case, even though I appreciate that by incarcerating you as I have done for a period of at least 5 years and 4 months your wife and daughter will be seriously impacted upon.”

56 It should be noted that the applicant was granted bail pending this appeal on 27 September 2005. The applicant has been at liberty on bail since that date. The basis for the granting of bail was the deteriorating medical condition of the applicant’s wife, to which reference will be made later.

Ground 1 – The learned judge erred in his application to the sentences of an incorrect and higher maximum penalty.

57 On at least two occasions his Honour incorrectly referred to the maximum penalty for the offences as being imprisonment for 10 years. It is clear from his Honour’s remarks on sentence that when considering the objective criminality of the offences, as well as in other crucial respects, his Honour’s erroneous belief that the maximum penalty was 10 years, significantly impacted upon the exercise of his sentencing discretion. The sentence passed in respect of count 5 (7 years 6 months) exceeds the maximum penalty. Accordingly as the Crown properly conceded, it will be necessary for the applicant to be re-sentenced by this Court.

58 Because it was necessary to re-sentence the applicant, the Crown did not object to this Court having regard to events which occurred after December 2004, and which were set out in affidavit material before the Court. Following the applicant’s incarceration, his wife developed cancer in her right breast. She was obliged to undergo urgent surgery involving a right mastectomy on 30 May 2005. Her recovery was complicated and she was re-admitted to hospital on 14 June 2005 for a further operation to clear blood clots. She returned to hospital on 6 August 2005 with septicaemia, which required a blood transfusion. The applicant’s wife remains significantly disabled.

59 Since her discharge from hospital, the applicant’s wife has required assistance with housework and cooking. She is unable to drive a car. She continues to receive chemotherapy, which disables her and makes her feel ill for days after treatment. She has developed a depressive condition. The applicant’s daughter, N, has missed a considerable amount of school owing to the need to look after her mother. Since his release on bail, the applicant has taken over this task and has been looking after his wife. There has been no repetition of the sort of conduct which led to his conviction.

60 It was submitted that in re-sentencing this Court ought not have regard to a number of findings of his Honour in that there were other errors in his Honour’s remarks on sentence. It was therefore necessary for the Court to consider the other challenges to the sentences.

Ground 2 – The learned judge erred in his application of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act and R v Way (2004) 60 NSWLR 168.

61 The standard non-parole period applicable to these offences applies only where the offences are “in the middle of the range of objective seriousness”. Where such an offence or offences are not in that mid range, the standard non-parole period has no direct application (Way at [66]). The standard non-parole period, of course, remains relevant as a reference point or guidepost to what is the appropriate non-parole period. (Way at [122], R v Davies [2004] NSWCCA 319 at [6], [29].)

62 It was submitted, on behalf of the applicant, that his Honour erred in his characterisation of count 5 as being “a little higher than the mid range of objective seriousness for this type of offence”. While accepting that the complainant was aged 10 and that the applicant was acting “in loco parentis” it was submitted that the circumstances relating to the offences were such that they should be regarded as being at the lower end of the spectrum of offences of this kind.

63 While not wishing to minimise the seriousness of the offences, it was submitted that all the offences were committed in circumstances where the complainant was fully clothed. The touching of the complainant took place on the outside of her underpants. The offences occurred on one night within the space of an hour, rather than over an extended period of time. None of the counts were representative. Given the applicant’s stressful circumstances at the time, it was submitted that there were some extenuating considerations in relation to his motivation. The Crown did not disagree with the proposition that these offences were not “in the middle of the range of objective seriousness”.

64 I agree with the submission of the applicant on this issue. Regrettably, this Court comes to consider a large number of offences contrary to s61M of the Crimes Act. Of their nature they cover a broad range of criminal activity. Within that range, for the reasons identified on behalf of the applicant, I am of the opinion that these offences were at the lower end of seriousness for offences of this kind and it was an error to characterise any of them as being “in the middle of the range of objective seriousness”.

Ground 3 – His Honour erred in refusing to allow evidence relevant to extra curial punishment of the applicant and in failing to take this matter into account in determining an appropriate sentence.

65 There was evidence before his Honour and before this Court that on 21 June 2003 at approximately 8.45 pm the applicant was attacked in his home when he answered the door. The applicant was knocked to the ground by two men one of who beat him with a metal bar while both kicked him. This continued until neighbours intervened and the attackers left. It was clear from statements by the attackers that the attack was related to the offences. The applicant spent the following day in hospital being treated for his injuries. As well as physical injury, windows were broken and other damage was caused to the applicant’s house. The applicant’s wife and daughter, who witnessed the attack, were greatly upset.

66 It was submitted, on behalf of the applicant, that this evidence of extra curial punishment was wrongly excluded by his Honour and should have been taken into account by him (R v Daetz and Wilson (2003) 139 A Crim R 398).

67 I agree with the submissions on behalf of the applicant on this issue. This incident was a matter which should properly have been taken into account by the sentencing judge as a subjective circumstance justifying some degree of leniency, although given the nature of the incident, its overall influence on the sentencing process was unlikely to be particularly significant.

Ground 4 – The learned judge erred in his application of the principles of totality and proportionality and his findings relevant to whether the sentences should have been accumulated.

68 It is clear from his Honour’s remarks on sentence that because he regarded each offence as being more serious than the one before it, he imposed sentences not only increasing in penalty but also with each partly cumulative upon the others. It was submitted, on behalf of the applicant, that this approach was erroneous and failed to have proper regard to the principles of proportionality and totality. The resulting sentences, it was submitted, were not only individually excessive but also cumulatively so. It was submitted that the proper approach was that set out by Wood CJ at CL in R v SG [2003] NSWCCA 220 in relation to similar but more serious circumstances:

“14. In relation to the final sentencing order it is submitted by the applicant and conceded by the Crown that his Honour did not correctly apply the principle in Pearce v The Queen . With that submission I would agree.
15. The proper course for his Honour would have been to have fixed sentences that were individually appropriate, and then to have allowed for totality when determining whether they should be served concurrently or cumulatively, taking into account also the question of whether they should be regarded as involving a continuing episode of criminality or discrete offences.
16. It seems to me that his Honour did not approach the exercise in this fashion. Rather what he did was to increase the sentences for the subsequent group of offences by reason of the earlier offences, thereby arriving at sentences, particularly that set for count 7, which were disproportionate to the gravity of the criminality involved. To that extent I am of the view that error has been shown and that leave to appeal should be granted.”

69 I am of the opinion that his Honour did err in the way referred to by Wood CJ at CL. In any event, I am not persuaded that the offences represented an escalating level of criminality with perhaps the exception of count 4. I also regard the offences as being substantially part of a continuing episode of criminality, rather than discrete offences. As such there was no occasion for there to be an accumulation of sentences.

Ground 5 – The learned judge erred in finding that the material before him “does not allow me to come to the conclusion” that a finding of special circumstances “assists in your case”.

70 It was submitted that his Honour had misdirected himself when he applied as his criteria for not finding special circumstances the continuing assertion by the applicant that he was innocent and his consequent refusal to undergo rehabilitation. His Honour failed to have regard, so it was submitted, to the strong subjective case which had been made out and the applicant’s good character and to the opinion of Dr Pickering that the applicant was unlikely to re-offend.

71 I do have some concerns with the way in which his Honour expressed himself when declining to find special circumstances. Had his Honour simply noted that the applicant was denied the benefit of contrition and remorse by reference to his continuing claims to innocence, no error would be disclosed. What his Honour seemed to be suggesting was that in some fashion the applicant’s continuing claim to innocence aggravated the criminality of the offence and disentitled him to a finding of special circumstances. The applicant was entitled to plead not guilty and defend himself without thereby attracting the risk of the imposition of a penalty more serious than otherwise would be imposed (Siganto v The Queen (1998) 194 CLR 656 at 663. I am of the opinion that his Honour did misdirect himself in this respect.

Re-sentence

72 As indicated I am of the opinion that the correct characterisation of the offences is that they were part of a single continuing enterprise. They took place in under an hour on one occasion and all with the exception of count 4 were of a similar kind. Nevertheless, the nature of the offences and the objective criminality is such that I consider the sentences should involve fulltime custody.

73 As also indicated, I regard the objective criminality of these offences as being towards the lower end of the scale for offences of this kind and were below the mid range of objective seriousness. I am, of course, mindful of the need to take account of the 5 year standard non-parole period as a reference point or guidepost. On this aspect, however, the comparatively low level of objective criminality, together with the very significant subjective matters, should be given greater weight.

74 The subjective case mounted in this Court was a strong one. The Crown accepted that the onus identified in R v Edwards (1996) 90 A Crim R 510 had been discharged. The circumstances insofar as the effect of the applicant’s incarceration on his wife and child were exceptional. The extent of the applicant’s wife’s illness was such that she required significant care and assistance which realistically could only be provided by the applicant, given the youth of his daughter. The medical evidence was unanimous as to the significant improvement in both her physical and mental condition since the applicant’s release on bail on 27 September 2005.

75 If not on the material before his Honour, certainly on the material before this Court, special circumstances have been established. The medical evidence is unanimous that the applicant’s wife’s medical condition will almost certainly deteriorate if he is returned to custody. He has, of course, already served 1 year and 3 weeks of imprisonment in protective custody. There was no issue that imprisonment served in this way was more onerous and restrictive than the normal conditions of imprisonment.

76 Because of his Honour’s approach to the objective level of criminality of the offences and to accumulation, I am of the opinion that the overall sentences were excessive, being outside the proper range of sentencing discretion. In that regard, it seems to me that the matters previously referred to may have caused his Honour to approach the matter in an inappropriate way so far as this may have led him to regard the applicant’s conduct as objectively more serious than was warranted.

77 In my view leave to appeal against sentence should be granted and the appeal allowed. I would propose that the sentences below be quashed and that in lieu thereof in relation to counts 1, 2, 3 and 5 the applicant should be sentenced to fixed terms of imprisonment for 9 months to date from 6 September 2004, those sentences to be served concurrently. In relation to count 4, I propose that the applicant be sentenced to a non-parole period of 1 year and 3 weeks with a balance of term of 11 months and 1 week. Accordingly the applicant is now eligible for parole.

Proposed orders

78 (i) Appeal against conviction dismissed.

(ii) Leave to appeal against sentence granted and the appeal allowed.

(iii) Sentences imposed by Kinchington ADCJ on 17 December 2004 be quashed.

(iv) In lieu thereof, in relation to counts 1, 2, 3 and 5 the applicant is sentenced to fixed terms of imprisonment of 9 months to be served concurrently to date from 6 September 2004 and to expire on 5 June 2005.

(v) In relation to count 4, the applicant is sentenced to a non-parole period of imprisonment of 1 year and 3 weeks to date from 6 September 2004 and to expire on 26 September 2005, with a balance of term of 11 months and 1 week to expire on 5 September 2006.

(vi) Notwithstanding s18 of the Criminal Appeal Act 1912 the applicant is forthwith to be released on parole in accordance with s50 of the Crimes (Sentencing Procedure) Act 1999 and to forthwith come under the supervision of the Probation and Parole Service.

79 JOHNSON J: I agree with Hoeben J.

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