Sivell v R

[2019] NSWCCA 77

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Sivell v R [2019] NSWCCA 77

Hearing dates:

5 September 2018

Date of orders:

17 April 2019

Decision date:

17 April 2019

Before:

Hoeben CJ at CL at [1]
McCallum J at [2]
Beech-Jones J at [3]

Decision:

(1)   The applicant’s notice of motion filed 17 September 2018 be dismissed;

 

(2)   Leave to appeal in respect of grounds 2 and 3 of the appeal against conviction be refused;

(3)   The appeal against conviction be dismissed;

(4)   The applicant be granted an extension of time in which to seek leave to appeal against his sentence until 7 September 2018;

(5)   Grant leave to appeal against sentence but the appeal be dismissed.

Catchwords:

CRIME – Appeal against conviction – Applicant convicted of 19 sexual offences against children – Apprehended bias – Trial judge’s consideration of applicant’s criminal history – Trial judge’s treatment of one complainant during cross-examination – No apprehension arises – Incompetence of Counsel – Failure to subpoena and “track down” witnesses – No miscarriage of justice – Fresh evidence – Request for Court to issue summonses to witnesses – Whether anticipated evidence admissible – Evidence of past medical procedure – Whether anticipated evidence cast doubt on conviction – No evidence casting doubt on guilt of applicant – Appeal against sentence – Sentence not manifestly excessive.

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004
Crimes Legislation Amendment (Child Sex Offences) Act 2015
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:

Ali v R [2005] HCA 8; 214 ALR 1
CUR24 v DPP [2012] NSWCA 65
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Mathews v R [2013] NSWCCA 187
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48
MRW v R [2011] NSWCCA 260
Norman v R [2012] NSWCCA 230
Nudd v R [2006] HCA 9
Obeid v R [2017] NSWCCA 221
R v E (2005) 93 SASR 20; [2005] SASC 332
R v M.A.K.; R v M.S.K. [2006] NSWCCA 381
R v Saleam (1989) 16 NSWLR 14
R v Sivell [2009] NSWCCA 286
Ratten v R [1974] HCA 35; 131 CLR 510
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
TKWJ v R [2002] HCA 46; 212 CLR 124
ZA v R [2017] NSWCCA 132

Category:

Principal judgment

Parties:

Andrew John Sivell (Applicant)
The Crown (Respondent)

Representation:

Counsel:
Self-Represented (Applicant)
Ms S Kluss (for the Applicant on the Sentence Appeal)
Mr E Balodis (Respondent)

  Solicitors:
Self-Represented (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2013/302138, 2014/189645

Publication restriction:

Non-publication order not issued, but restriction on the identification of the child victims of sexual offences the subject of the appeal (pursuant to Crimes Act 1900, s 578A and Children (Criminal Proceedings) Act 1987, s 15A)

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 September 2015

Before:

Zahra DCJ

File Number(s):

2013/302138, 2014/189645

Judgment

1. HOEBEN CJ at CL: I agree with the reasons of Beech-Jones J and the orders which he proposes.

2. McCALLUM J: I agree with Beech-Jones J.

3. BEECH-JONES J: On 29 July 2015, the applicant, Andrew John Sivell, was arraigned before Judge Zahra in the District Court on an indictment that charged him with nineteen sexual offences against children. He pleaded not guilty. His trial proceeded before his Honour sitting alone without a jury (Criminal Procedure Act 1986, s 132(1); “CPA”). On 7 September 2015, his Honour found the applicant guilty of all counts on the indictment. As contemplated by s 133(2) of the CPA, his Honour published reasons for his verdicts (the “conviction judgment”).

4. On 29 February 2016, his Honour convicted the applicant of the nineteen offences. His Honour sentenced the applicant to an aggregate sentence of 21 years and 6 months, commencing 8 January 2014 and expiring on 7 July 2035. His Honour fixed a non-parole period of 16 years, commencing 8 January 2014 and expiring on 7 January 2030. His Honour published reasons for imposing the sentence (the “sentencing judgment”).

5. The applicant now seeks to appeal against his conviction. As some of the grounds raised in support of his appeal against his conviction are not solely questions of law, he must seek leave to raise them (Criminal Appeal Act 1912, s 5(1)(a), 5(1)(b)). The applicant also seeks leave to appeal against his sentence (Criminal Appeal Act, s 5(1)(c)) and an extension of time in which to do so.

The Offences

6. The Crown case, the evidence supporting it, and the trial judge’s findings can be described with relative brevity. The following is largely taken from the conviction judgment which is comprehensive.

The Crown Case

7. There were two victims of the applicant’s offences, ‘A’ and ‘B’. ‘A’ and ‘B’ are sisters. According to their mother, ‘A’ was born in May 1993 and ‘B’ was born in October 1997. Both were born in Africa and migrated to Australia with their mother and siblings in 2003. At the trial, both ‘A’ and ‘B’ gave evidence as did their mother and their eldest sister, ‘C’, who at one point was in a relationship with the applicant. The applicant was born in 1964. At the time of the offences he was approximately 41.

8. ‘A’ said that she first met the applicant when she was in year four or five at school in 2005 at a train station. She said the applicant spoke to her mother about “getting us [ie, her and her siblings] into modelling”. ‘A’s mother stated that she did not meet the applicant at the train station but recalled being told by one of her children that he had approached them. She said that she later received a telephone call from the applicant in which he stated that he would come to her house to talk about modelling he arranges for “beautiful African children”. Nothing turns on the difference between the two versions as to how the applicant introduced himself.

9. In her evidence, ‘A’ said that approximately two weeks after the meeting at the train station, her mother asked her whether she felt comfortable spending time with the applicant for modelling. ‘A’ said that she “told her mother she was very excited and happy to go with the [applicant]”. Sometime later, the applicant came to her home in Cabramatta. ‘A’ said that after her siblings “came over and [said] hello to him” they went to the back of the house and the applicant said there was something he needed to show her. They went into the bathroom and the applicant “pulled out his penis and showed me”. ‘A’ said she was “a bit scared and ran from the room and was crying and stuff”. In cross-examination, ‘A’ said “I wanted to call mum and talk to mum about it but then I couldn’t so I ended up going with him”.

10. The act of the applicant in exposing his penis to ‘A’ was the basis of count 1 of the indictment. Count 1 charged the applicant between 6 April 2005 and 31 December 2005 with committing an act of indecency towards ‘A’ who was then a person under the age of sixteen years contrary to former s 61N(1) of the Crimes Act 1900 (“the Crimes Act”).

11. ‘A’ then said she was driven away in a van with the applicant. She overheard the applicant talking on his mobile phone saying words to the effect that there was “no space” at the location she was supposed to meet the other girls for modelling. After he finished the supposed phone call, ‘A’ said that the applicant told her that place “was full” and “that they would be going to his house and spending the night there” before travelling on the following morning to join the other girls for a photoshoot.

12. ‘A’ said she was then taken to a one-bedroom apartment and was told by the applicant that she would sleep in the bedroom and he would sleep on the couch. ‘A’ said she then had a shower and while she was in the shower the applicant asked her whether she brought underwear. She said that the applicant provided her with a “G-string”. ‘A’ said that sometime after she went to bed the applicant joined her in the bed. She said the applicant asked her whether she had a boyfriend or whether she had ever been kissed before and she said “no”. ‘A’ said that the applicant “was just rubbing my chest and then he kissed me and then after, like I said, afterwards he started putting his hands in my underwear and fingering me”. ‘A’ said that, at one point, the applicant “took his penis out and told me to touch it”. ‘A’ said she refused but then the applicant placed her hands on his penis. ‘A’ said that the applicant “used his mouth to put it on my vagina and then his tongue to put it inside my vagina as well”.

13. The digital penetration of ‘A’s vagina was the basis of count 2 of the indictment. Count 2 of the indictment charged the applicant with having sexual intercourse with ‘A’ without her consent, knowing that she was not consenting in circumstances of aggravation, namely, that she was under the age of sixteen years contrary to s 61J(1) of the Crimes Act. The touching of ‘A’s chest by the applicant was the basis of count 3 of the indictment. Count 3 charged the applicant with assaulting ‘A’ and at the time of the assault committing an act of indecency upon her, being a person under the age of sixteen years contrary to former s 61M(2) of the Crimes Act. The placing by the applicant of ‘A’s hand on his penis was the foundation of count 4 of the indictment which was another charge of assault with an act of indecency contrary to former s 61M(2) of the Crimes Act. The act of the applicant in placing his tongue on ‘A’s vagina was the foundation of count 5 of the indictment which was another count of aggravated sexual intercourse contrary to s 61J(1) of the Crimes Act with the circumstance of aggravation being that ‘A’ was under the age of sixteen.

14. ‘A’ said that the next day the applicant told her that the place they were meant to undertake the photoshoot was “full” so they would be taking the photographs at his house. She then described a “photoshoot” in which, for a period of thirty minutes to an hour, she wore a G-string and no top while she was photographed. ‘A’ said that the applicant made her adopt different poses including facing him and directed her to “turn around and put my hands on the window and just show him my butt”.

15. The conduct of the applicant in directing ‘A’ to pose for photographs, and the taking of the photographs, was the foundation of count 6 of the indictment. Count 6 charged the applicant with an offence of using ‘A’ for pornographic purposes at a time when she was under the age of fourteen years, contrary to a previous version of s 91G(1)(a) of the Crimes Act.

16. ‘A’ recounted that, in the days and weeks following these incidents, the applicant came to her family home from time to time. He commenced dating her elder sister, ‘C’, who later moved into an apartment with him. ‘A’ said that from the time ‘C’ moved in with the applicant, the applicant would collect her and take her to the apartment for weekends. He sexually assaulted her by digitally penetrating her and putting his tongue on her vagina. This evidence was led as “context evidence”, that is, as evidence necessary to explain the balance of the counts on the indictment (see Norman v R [2012] NSWCCA 230 at [26]).

17. ‘A’ said that on one occasion the applicant took her to the apartment of a friend and they shot more pornographic photos of her. ‘A’ said that during the “photoshoot” both the applicant and his friend “put their finger on my vagina” as well as telling her to adopt certain poses.

18. The touching by the applicant of ‘A’s vagina was the foundation of count 7 on the indictment which charged him with a further offence of assaulting ‘A’ and at the time of the assault committing an act of indecency on a person under the age of sixteen years contrary to former s 61M(2) of the Crimes Act. The conduct of the applicant in photographing ‘A’ was the basis of count 8 on the indictment which charged him with another offence of using ‘A’ for pornographic purposes while ‘A’ was under the age of fourteen years contrary to a previous version of s 91G(1)(a) of the Crimes Act.

19. ‘A’ said that, at some point, the applicant told her that ‘C’ had come “across some photos that she believed was me” and the applicant told ‘A’ to deny to ‘C’ that the photos were of her.

20. ‘A’ recalled that, at some stage, the applicant and ‘C’ moved to a bigger apartment which she described as a two-bedroom unit. ‘A’ said that, on one occasion when she stayed over and after ‘C’ fell asleep, the applicant came to her room and started “fingering my vagina and doing the same thing but this time he tried putting his penis in my vagina”, but was unsuccessful after ‘A’ pushed him off.

21. The conduct of the applicant in digitally penetrating ‘A’s vagina was the foundation of count 9 on the indictment which charged with him another offence of aggravated sexual intercourse with ‘A’ contrary to s 61J(1) of the Crimes Act with the circumstance of aggravation being that ‘A’ was under the age of sixteen years. The attempt by the applicant to place his penis in ‘A’s vagina was the foundation of count 10 of the indictment which was a charge of attempted aggravated sexual intercourse with ‘A’ contrary to the offence created by the application of s 344A of the Crimes Act to s 61J(1) of the Crimes Act with the act of aggravation being that ‘A’ was under the age of sixteen years.

22. ‘A’ said that, at some stage, her family returned to live in an address in Auburn when she was in either year 7 or year 8 at school. ‘A’ said that after this time, and after the applicant and ‘C’ had moved to a new apartment, the last acts of sexual abuse by the applicant towards her occurred. ‘A’ said that she was staying over and the applicant snuck in her room and he “started fingering me, putting his fingers in my vagina and then tried putting his penis inside of my vagina”. ‘A’ also said that on this occasion the applicant “use[d] his tongue and started putting his tongue in my vagina and using his mouth to play with it and stuff and then putting his tongue inside my vagina”.

23. The digital penetration of ‘A’s vagina by the applicant was the foundation of count 11 on the indictment which was another charge of aggravated sexual intercourse contrary to s 61J(1) of the Crimes Act in circumstances of aggravation being that ‘A’ was under the age of sixteen years. The conduct of the applicant in placing his tongue on ‘A’s vagina was the foundation of count 12 on the indictment which also charged him with another offence of aggravated sexual intercourse contrary to s 61J(1) of the Crimes Act. The attempt by the applicant to place his penis inside ‘A’s vagina was the foundation of count 13 on the indictment, which was another charge of attempted aggravated sexual intercourse with ‘A’ contrary to the offence created by the combination of s 344A of the Crimes Act and s 61J(1) of the Crimes Act.

24. The balance of the counts on the indictment concerned ‘B’. Her evidence in chief was given in the form of a recording of an interview conducted on 17 October 2012. ‘B’ was then cross-examined.

25. In her interview, ‘B’ recalled that when she was in year 3, which was during 2006, she went to the house where the applicant was living with ‘C’. ‘B’ said that ‘C’ was away from the apartment and that at some point the applicant asked her something which she remembered was “really disgusting”. ‘B’ said that the applicant “started touching me”. ‘B’ said that she told him to stop and she started crying, but he would not stop. ‘B’ recalled that the applicant “started telling me things like, if you do this, I’ll buy you this, if you do this, I’ll buy you this”. ‘B’ explained that the applicant touched her leg, her chest and put his hands between her legs.

26. The conduct of the applicant in touching ‘B’ was the subject of count 14 of the indictment. Count 14 charged the applicant with assaulting ‘B’ and at the time of the assault committing an act of indecency on a person under the age of sixteen years contrary to former s 61M(2) of the Crimes Act.

27. ‘B’ stated that at the time the applicant said that he would buy her things, he said that he would do so if she “sucked his penis”. ‘B’ said she went to another bedroom, closed the door, and began to cry. ‘B’ said that the applicant entered the room. He told her to start “touching him on his, like, penis and that” and then removed his trousers. ‘B’ said that he made her “wank him or something”. ‘B’ said that a noise downstairs disturbed this as the applicant believed that ‘C’ had returned. In her interview, ‘B’ said that around this time she “felt really, really scared like I was just shaking”.

28. The conduct of the applicant in directing ‘B’ to place her hand on his penis was the subject of count 15. Count 15 charged the applicant with a further offence of assaulting ‘B’ and at the time of the assault committing an act of indecency on her while she was under the age of sixteen years contrary to former s 61M(2) of the Crimes Act.

29. ‘B’ recalled that sometime in the same year, the applicant and ‘C’ came over to ‘B’s home at Fairfield at a time when everyone was home. ‘B’ said she went to a shed where toys were kept. ‘B’ said that she became aware that the applicant was also present in the shed. ‘B’ said that the applicant closed the door and told her that he would buy her a “Barbie Doll’ if she would “get on [her] knees and suck [his] dick”. ‘B’ said the applicant took off his pants and that she “had to wank him again”. ‘B’ said that she “had to get on my knees to masturbate the applicant and that after that “he told me to put my mouth on his penis” which she did. ‘B’ said the applicant ejaculated into her mouth.

30. The conduct of the applicant in directing ‘B’ to place her hands on his penis and masturbate him was the basis of count 16. Count 16 charged him with an offence of assaulting ‘B’ and at the time of the assault committing an act of indecency upon her when she was under the age of sixteen years contrary to former s 61M(2) of the Crimes Act. The conduct of the applicant in placing his penis in the mouth of ‘B’ was the basis of count 17 of the indictment which charged him with an offence of having sexual intercourse with ‘B’, who was then under the age of ten years, contrary to s 66A of the Crimes Act.

31. The last occasion that ‘B’ stated she was sexually abused by the applicant immediately preceded the arrest of the applicant at her home following the execution of a search warrant in June 2007 (see [34] and [109]). ‘B’ said that the applicant was staying at her home and that her mother had told ‘B’ and her cousin to sleep in his room. She said that around 6.00pm she was in the room and the applicant told her to come over to him and take off her clothes. ‘B’ said that the applicant told her to “wank him”, which she did underneath a blanket. ‘B’ said that the applicant then pulled the blanket down to his knees. ‘B’ said that the applicant told her to put her mouth on his penis and while she did so he placed his hands on her head. ‘B’ said the applicant was ‘just pushing my head down on his penis but, like, I kept choking”.

32. The placing of ‘B’s hand on the applicant’s penis was the basis of count 18 of the indictment which was another charge of assaulting ‘B’ and committing an act of indecency upon her contrary to former s 61M(2) of the Crimes Act. The placing by the applicant of his penis into the mouth of ‘B’ was the foundation of count 19 which charged him with another offence of having sexual intercourse with ‘B’, being a person under the age of ten years contrary to s 66A of the Crimes Act.

33. As noted, ‘C’ gave evidence. ‘C’ recounted the course of her meeting and entering into a relationship with the applicant which provided the applicant with access to her sisters ‘A’ and ‘B’. ‘C’ recounted moving into an apartment with the applicant in December 2005, which was a “two-bedroom flat”. The applicant told her that his previous apartment in Redfern was “pretty small”. ‘C’ said that a few weeks later they moved to another apartment at Eastlakes where she resided with the applicant for some months. She said that the Department of Community Services came to her apartment and took her son from a previous relationship away from her. In 2007, she returned to live with her mother and gave birth to a child of which the applicant was the father. ‘C’ said that on one occasion when she was at the Eastlakes apartment she found a camera memory card in the applicant’s suitcase. She said she looked at the photographs on the memory card and saw photos of her sister in suggestive poses, wearing a G-string. ‘C’ said she confronted the applicant about the photographs. The applicant told her that ‘A’ had probably taken his camera and taken the photographs herself.

7. As stated, ‘A’, ‘B’ and ‘C’s mother gave evidence at the trial. She described the events that led to the applicant having access to three of her daughters. She recounted the occasion in June 2007 when the police arrived at her house and found the applicant in a room with ‘B’ and another child. ‘A’, ‘B’ and ‘C’s mother said she was unaware at the time that the applicant was at the house.

8. At the trial, the Crown also tendered certain material which it contended established a tendency of the applicant to act with a particular state of mind, namely, having a sexual interest in female children under sixteen years of age. The tendency evidence concerned four other occasions when the applicant was convicted, or admitted his guilt, in relation to sexual misconduct. These materials demonstrated the following:

“the [applicant] performed cunnilingus upon his younger female cousin TS aged 10 or 11 in her bedroom in her home, while her parents were not home …

The [applicant] persuaded a girl MC age 12 to put on lacy underwear and pose for revealing photographs taken by him in return for a promise of money; he then handed her the camera instructing her to take photos as he masturbated, telling her to come closer, before being interrupted by others approaching …

The [applicant] gained entry to the house of a girl TL aged under 16, and twice touched her in the vicinity of the vagina …

The [applicant] led a child EN aged under 10 to a stairwell purporting to take photos of her; and placed his hands inside her underpants and fondled her directly on the vagina …”

The Defence Case

36. The applicant did not give evidence or call any witnesses. It was submitted on his behalf that all of the Crown witnesses were unreliable and untruthful.

The Trial Judge’s Findings

37. Given the grounds of appeal, it is unnecessary to describe in detail the trial judge’s reasoning. It suffices to state that his Honour outlined and addressed all the various matters raised by the applicant’s challenge to the honesty and reliability of all the Crown witnesses. As described below, one of those matters concerned the demeanour of ‘B’. The trial judge ultimately found that he accepted the evidence of ‘A’ that the conduct the subject of counts 1 to 13 occurred. In relation to ‘B’, the trial judge found that she gave both a truthful and reliable account “in relation to the sexual conduct she described which formed the foundation for each of the counts” concerning her. His Honour found that aspects of the evidence of ‘C’ and ‘C’s mother was unreliable, but stated that “the unreliability of part of the evidence of these witnesses does not impact upon the conclusions I have reached in relation to the assessment of the reliability of [‘A’ and ‘B’s] evidence as to the particular sexual conduct they attribute to the [applicant]”.

38. Having accepted the evidence of ‘A’ and ‘B’, as well as the evidence of their mother as to their dates of birth, the trial judge addressed, and found proved beyond reasonable doubt, each of the elements of the various offences.

39. In relation to the tendency evidence, the trial judge found beyond reasonable doubt that the evidence established the tendency of the applicant to act in the particular way contended for by the Crown. However, his Honour stated that the “Crown has proved each count beyond reasonable doubt based solely on the evidence of the individual complainants”. Nevertheless, his Honour observed that the tendency evidence “afford[ed] powerful support to the evidence of the individual complainants”.

Ground 1 of Conviction Appeal: Bias

40. Ground 1 of the conviction appeal contends that the trial judge “exhibited extreme bias during the trial process that led to a miscarriage of justice”. In his written submissions, the applicant stated that he “(f)elt bias from the judge at the ... beginning of [the] trial, right through to the end of [the] trial, not just from what he did but what he didn’t do”. The Crown submitted that this amounts to an allegation of apprehended bias rather than actual bias. I will address it on this basis and treat it as raising a question of law for which leave is not required.

41. The relevant test where an allegation of apprehended bias on the part of a judicial officer is raised is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ ("Ebner")). In Ebner, the application of this test was held to involve two steps (at [8]), namely:

“First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." (emphasis added)

42. The reference in Ebner to the judge deviating from deciding a case on its “legal and factual merits” reflects the effect of the following passage from the judgment of Mason J in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 ("Re JRL") (at 352):

"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way." (emphasis added)

Criminal History

43. One of the complaints of the applicant in relation to this ground is that the trial judge became “fully aware of [the applicant’s] past criminal history, including pre-trial details [of] the year before with Judge Sweeney”.

44. In November 2014, Judge Sweeney heard an application by the Crown to adduce tendency evidence against the applicant and an application by the applicant for separate trials of various counts on the indictment. At that time, the indictment included the 19 counts described above and a twentieth count of possession of child pornography. In reasons published on 27 November 2014, her Honour severed the twentieth count and rejected the tender of certain evidence associated with it. However, her Honour allowed the remaining counts to proceed to trial together, allowed the Crown to adduce the evidence of ‘A’ and ‘B’ as tendency evidence in relation to the counts that related to each other and allowed the Crown to adduce the tendency evidence described above (at [35]). As events transpired, Judge Sweeney then conducted a trial by judge alone of the twentieth count. On 5 December 2014, her Honour found the applicant guilty of that offence. Her Honour sentenced the applicant in April 2015.

45. On 16 July 2015, the matter constituted by the remaining 19 counts on the indictment was mentioned before the trial judge. No order for trial by judge alone had been made at that point. The trial judge was advised of Judge Sweeney’s ruling on 27 November 2018 and the fact that the remaining count of child pornography did “proceed before her Honour” (ie, Sweeney DCJ). As part of a consideration of whether the trial judge would revisit that ruling, his Honour was provided with a copy of Judge Sweeney’s judgment and the tendency material relied on but ultimately no application to reconsider that ruling was pursued. When the matter proceeded by way of trial by judge alone, that tendency material was tendered. As noted, the trial judge accepted that it established a tendency of the applicant as contended for by the Crown but treated it only as confirmatory of his finding that he was satisfied beyond reasonable doubt of the applicant’s guilt based on the evidence of each of ‘A’ and ‘B’.

46. The fact that the trial judge became apprised of the conduct of the applicant as revealed by the tendency evidence that was adduced at his trial is incapable of supporting an allegation of apprehended bias. The trial judge was obliged to receive and consider admissible evidence. Such a circumstance could only lead to a fair‑minded observer to conclude that the trial judge was determining the applicant’s guilt or innocence according to its legal and factual merits.

47. The trial judge also learnt that the applicant was facing a charge of possessing child pornography but was not apprised of the result. The hypothetical fair‑minded observer can be taken to accept that, at least without more, a professional judge will act on their “training, tradition and oath or affirmation” to “discard the irrelevant, the immaterial and prejudicial” (Johnson v Johnson (2000) 201 CLR 488 at [12]). In circumstances where the trial judge made no reference to the charge, and its details were not explored, there is no basis for concluding that a fair-minded observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the applicant’s guilt or innocence by reason of his knowledge of that charge.

Treatment of ‘B’ as a Witness

48. In his written submissions, the applicant complained about the trial judge’s treatment of ‘B’ as a witness. In the conviction judgment, the trial judge recounted as follows in relation to ‘B’:

“The complainant [B] presented as an extremely hostile witness. Her evidence in chief essentially comprised her interview with police. During the course of the interview she appeared frustrated with the questioning of police. Her frustration in my view can largely be understood in the terms of the persistent questioning of police seeking detail of the particular sexual acts. A substantial number of questions were unnecessary, repetitive and humiliating. Further from the outset of cross examination the complainant was hostile towards counsel for the [applicant]. She refused to answer a number of questions and obstructed cross examination and at times left the remote location room from where she gave evidence. A number of warnings were given to the complainant that she must answer questions. At times these warnings were met with an aggressive and hostile response. She appeared at times to have little respect for the court process and the standing of the court.

It was apparent she bears considerable hostility towards the [applicant].

The demeanour of the complainant when giving evidence is an important matter to be taken into account when assessing the reliability of her evidence. The observations of her demeanour are matters which need to be given appropriate weight, particularly as the Crown relies upon a single witness, the complainant, in proving the sexual conduct it alleges in each count beyond reasonable doubt. I will return to the complainant’s demeanour when assessing the reliability of her evidence.”

49. Later in addressing the submissions about ‘B’s evidence, the trial judge repeated the substance of these observations and noted that “on occasions [‘B’] appeared to be intentionally evasive when cross-examined”. The trial judge then addressed various aspects of her evidence and the submissions made about it before ultimately concluding that ‘B’ gave “a truthful and reliable account”.

50. In his written submissions, the applicant referred to these aspects of ‘B’s behaviour as a witness. He complained that, despite ‘B’s conduct, the trial judge “continued to allow her to give evidence without dismissal” and that the trial judge “asked on numerous occasions if she was alright and if she needed anything including breaks – that was despite the judge never asking me or communicating with me in any way”.

51. I have read the transcript of ‘B’s evidence closely, although the tension, anger and raw emotion that was undoubtedly present in the courtroom while ‘B’ gave evidence has long since ebbed away. The transcript supports the trial judge’s description, although more should be added to convey the difficult task that his Honour was confronted with. At the time ‘B’ gave evidence she was approximately eighteen years old. She was describing serious sexual assaults perpetrated upon her when she was aged between eight and nine years of age. If the prosecution case was accepted, it meant that the applicant had preyed on and abused ‘B’ and her sister. While they were seemingly relevant to the trial, the subject matter of some of the questions posed was brutal (“When you say that you sucked his dick were you on your knees as well?”; “now which end of the penis are you describing do you think?”). At times ‘B’s response to the questions asked of her was angry and defiant (Q. “I put it to you he didn’t buy any toys for you to share or for you to use separately at all, did he? A. You’re a knob. He did buy us toys”).

52. The trial judge was obliged to treat all witnesses, including ‘B’, with fairness and respect which necessitated consideration of her age, vulnerability and the subject matter of the questions. At the same time, the trial judge was obliged to be, and to appear to be, impartial especially given that he was the trier of fact and law. This meant that the trial judge had to control the trial to ensure that the accused had via his Counsel a fair opportunity to test ‘B’s evidence and that he not otherwise compromise his own capacity to assess the evidence in the trial dispassionately, including ‘B’s evidence.

53. The trial judge discharged these obligations. On a number of occasions, he firmly but politely reminded ‘B’ of her obligation to answer the questions that were posed of her (eg, “...unless I stop the question being asked you must answer the question, do you follow?”; “… again I remind you … it’s best to answer the questions as simply as you can”). At one point, the trial judge advised ‘B’ that if she continued to refuse to answer questions, she might be provided with independent Counsel to advise her of the consequences if she continued to refuse to do so. At other times, he afforded her opportunity for breaks. He intervened when cross examining Counsel’s questioning or comments were demeaning, insulting or potentially misleading.

54. The hypothetical reasonable observer could only conclude from the manner in which the trial judge conducted the trial that his Honour treated all the witnesses fairly, including ‘B’, without compromising the applicant’s right to a fair trial.

55. As for the complaint that the trial judge did not communicate with the applicant during the trial as he did with ‘B’, this overlooks the fact that the applicant did not enter the witness box. While the applicant remained in the dock and absent some special request, it was the role of the applicant’s counsel to communicate with the judge on his behalf.

56. The applicant’s submissions also complain that, despite ‘B’s conduct in the witness box, the trial judge ultimately believed ‘B’s evidence. The trial judge was faced with a difficult task in dealing with a belligerent witness who had given evidence of being the victim of terrible crimes. His Honour gave careful consideration to her presentation as a witness and ultimately concluded that it was a product of her discomfort with the manner in which she was cross‑examined rather than a reflection on her honesty and reliability as a witness. This was quintessentially a matter for his Honour as the trier of fact to determine. In any event, his Honour’s acceptance in his final judgment of ‘B’s evidence provides no support whatsoever for an allegation of apprehended bias in the form of pre-judgment (Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67]).

Notice of Motion Filed 17 September 2018

57. After the hearing of the appeal, the applicant filed a notice of motion dated 17 September 2018 which sought to raise two further particulars of his allegation of apprehended bias on the part of the trial judge.

58. The first additional particular was that the applicant had “been the victim of a bias[ed] judicial officer before”. In the material accompanying the notice of motion, the applicant recounted an incident involving a Magistrate who heard a charge laid against him and communicated with the Crown prosecutor and investigating officer in the absence of his legal representative. As was explained to the applicant during the hearing of the appeal, that is completely irrelevant to his ground of appeal which is directed towards the conduct of the trial judge in this individual case.

59. The second additional particular arises from an affidavit sworn by the applicant on 27 September 2018 in which he alleged that during the trial one of the Court “clerks next to the dock” advised him that the “Judge presiding over the matter … was talking wrong of me out the back of the chambers” and was mentioning the incident involving the Magistrate that I have just described. The Court “clerk” who advised him of this is not identified and nor does the applicant indicate whether he had advised his solicitors of this conversation during the trial.

60. The affidavit can be considered by taking it at its highest, rather than convening a further hearing to cross‑examine the applicant and determine if any such conversation in fact occurred. It may be that the latter course should not be undertaken (see CUR24 v DPP [2012] NSWCA 65 at [41]). The hearsay statement attributed to an unidentified Court “clerk”, presumably a sheriff’s officer, is not evidence of any statement made out of Court by the trial judge (Evidence Act 1995, s 59). Even if it was admissible evidence of out of Court statements by the trial judge, the assertion that the trial judge was “talking wrong of me” does not advance a case of apprehended bias. The trial judge was conducting a trial during which he received a strong body of evidence of persistent sexual abuse of children by the applicant. The context in which the alleged discussion by the trial judge occurred is not stated. Any such discussion by the trial judge of that evidence could have simply been the trial judge reflecting on the evidence in the case in the presence of his personal staff. Given the evidence adduced in the trial, any such discussion could be construed by someone who overheard it as “talking wrong” of the applicant. This could not cause the hypothetical fair‑minded observer to possibly apprehend that the trial judge might not bring an impartial mind to the resolution of the applicant’s guilt or innocence on the charges against him. Further, even if the trial judge was aware that the applicant who was the same person who faced charges the subject of the proceedings before a Magistrate who apparently misconducted himself, this adds nothing to whether the hypothetical fair-minded observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the applicant’s guilt or innocence on the charges against him. The trial judge was made aware during the trial that the applicant had faced other charges. The alleged misconduct of the Magistrate in hearing those charges was not a matter adverse or prejudicial to the applicant on the issues that were at hand.

Conclusion on Ground 1

61. I would reject ground 1 of the appeal and dismiss the applicant’s notice of motion dated 17 September 2018.

Ground 2 of Conviction Appeal: Alleged Incompetence of Counsel

62. Ground 2 of the appeal contends that the applicant’s trial counsel “exhibited such incompetence that a gross miscarriage of justice occurred in the trial process”.

63. The principles governing a complaint of incompetence of trial counsel in conviction appeals were summarised in Mathews v R [2013] NSWCCA 187 at [62] to [63]:

“In assessing complaints about counsel's conduct it must be borne in mind that the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice (TKWJ v R [2002] HCA 46; 212 CLR 124 at [79] per McHugh J, Ali v R [2005] HCA 8; 214 ALR 1 at [18] per Hayne J). None of the alleged failings of the appellant's counsel is even close to the potential category of errors by counsel adverted to by McHugh J in TKWJ at [76], namely those that are of such a nature that of themselves they might render a trial unfair (see Nudd v R [2006] HCA 9; 80 ALJR 614 at [19] per Gleeson CJ and [87] per Kirby J). Instead the nature of his complaints are such that what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24] per Gummow and Hayne JJ; TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J).

In conducting that inquiry a number of related matters should be noted. First, there is vested in counsel for an accused person control over and responsibility for the manner in which the trial will be conducted (TKWJ at [74] per McHugh J). Second, relevant unfairness will not be established simply because an "apparently rational decision" by trial counsel produced adverse consequences for the accused (TKWJ at [16] per Gleeson CJ). Third, inquiries into the subjective thought processes of counsel for taking the steps they did at the trial are to be avoided. Instead the question is whether there could be a reasonable explanation for the course that was adopted at trial (Ali per Hayne J, … at [25]; TKWJ at [110] per Hayne J). If there could be such an explanation then no error or defect in the trial occasioning any miscarriage of justice is shown to have occurred (Ali id). Fourth, although the inquiry into whether there was an explanation for counsel's conduct is an objective one, there are some perhaps limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions (Nudd at [10] and [17] per Gleeson CJ).”

64. The applicant’s written submissions complain about three aspects of the conduct of his legal representatives which he contends occasioned a miscarriage of justice.

65. The first is their alleged failure to subpoena and adduce evidence from a solicitor who acted for the applicant in 2006. As noted, ‘C’ gave evidence during the trial. At one point during the trial, it was suggested to ‘C’ that she and the applicant met this solicitor and he “explain[ed] to you the problems that the [applicant] had been involved in”. ‘C’ denied that she attended the meeting and said she did not know the applicant was a “paedophile or child molester” until the day her son was removed from her care. In his written submissions, the applicant contended that his former solicitor should have been subpoenaed to confirm that the meeting with the applicant and ‘C’ took place.

66. In oral submissions on the appeal, the applicant was asked how this material affected any issue other than ‘C’s credibility. The applicant posited that the solicitor’s evidence would have confirmed that he made it clear to ‘C’ that he had a history of convictions for offences against children. However, at most, that still only serves to contradict ‘C’s evidence but says nothing about ‘A’ or ‘B’s evidence. In circumstances where the trial judge’s verdicts did not rely upon an acceptance of ‘C’s evidence, it can safely be concluded that the failure to call the witness had no effect on the trial (Nudd v R [2006] HCA 9 at [24] per Gummow and Hayne JJ; TKWJ v R [2002] HCA 46; 212 CLR 124 at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J). Otherwise, there is an objective explanation for the failure to adduce this evidence, namely, an understandable preference to avoid further agitating the applicant’s criminal history as a paedophile before the trial judge (Ali v R [2005] HCA 8; 214 ALR 1 per Hayne J at [25]; TKWJ at [110] per Hayne J). The consequence is that no miscarriage of justice is demonstrated (Ali id).

67. The second aspect of the conduct of the applicant’s legal representatives which is the subject of the complaint is their alleged failure to subpoena Mascot police station to obtain a record of interview apparently conducted with ‘C’. Nothing further is known about this interview save for what is discussed below in relation to ground 3. In any event, the reasoning in relation to the alleged failure to subpoena the applicant’s former solicitor applies with equal force to this complaint.

68. The third aspect of the conduct of the applicant’s legal representatives which is the subject of the complaint is an alleged failure to “track down” an associate, ‘CR’, and “prepare him for questioning”. In his written submissions on ground 3, the applicant contended that he was the “friend that was spoken of at the trial who took part in taking sexual photos and digitally entering the vagina of [A] at his home in around early 2007”. The applicant stated that he anticipated that ‘CR’ would “admit the truth as to what really happened at his home – which did not include me ... doing anything sexual” to ‘A’. In oral submissions on the appeal, the applicant stated that he expected ‘CR’ to attend and state that he, ‘CR’, committed sexual assaults upon children and exonerate the applicant (provided he had immunity from prosecution). The evidentiary basis upon which this apprehension arises was not stated and there is no apparent reason why any such immunity would ever be afforded. In the end result, there is no evidentiary basis whatsoever for the contention that ‘CR’ would have stated this if he had been called to give evidence such that it cannot be concluded that the failure to call him had any effect on the trial.

69. This ground has no substance. It does not raise a question of law alone (Criminal Appeal Act, s 5(1)(b)). I would refuse leave to raise it.

Ground 3 of Conviction Appeal: New Evidence

70. Ground 3 of the appeal contends that “new evidence has arisen in the case that ought to be considered by the Court of Criminal Appeal”.

71. Given that the applicant is not represented on his conviction appeal, I will treat the reference to “new” evidence as a reference to both “fresh” evidence and “new” evidence, as those phrases are understood.

72. In relation to “fresh evidence”, in MRW v R [2011] NSWCCA 260 at [46] Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely:

"First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial: see Ratten v R [1974] HCA 35; 131 CLR 510 at 512; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant."

73. In regards to the first question posed by this test, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material could not with reasonable care have been discovered previously (R v Saleam (1989) 16 NSWLR 14 at 21 per Hunt J), or "could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case" (Ratten v R [1974] HCA 35; 131 CLR 510 at 516 per Barwick CJ (“Ratten”)).

74. With “new” evidence, that is further evidence that does not meet the above test for “fresh” evidence, then there will only be a miscarriage of justice if the applicant satisfies this Court that the evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that the applicant was innocent or that his or her guilt was not established beyond reasonable doubt so that the verdict cannot be allowed to stand (Ratten at 518 and 520).

Issue of Summonses

75. The first component of the applicant’s submissions on this ground did not involve any attempt to present any “evidence” at all. Instead, in substance the applicant sought an inquiry into his conviction in that his written submissions in support of this ground requested the Court issue four summonses for the attendance of various witnesses who have not provided statements or affidavits. Nevertheless, I will approach the matter by considering the evidence the applicant asserts they will give and the basis for that assertion.

76. One of the witnesses sought to be summonsed was the applicant’s former solicitor whom he anticipated would give evidence about the meeting between himself, ‘C’ and that solicitor as discussed above. At most, any such evidence the former solicitor might give would only be new evidence. For the reasons stated in relation to ground 2, any such evidence would not cast any doubt on the applicant’s guilt.

77. Another witness sought to be summonsed was ‘CR’. As noted, in relation to ground 2, there is no evidentiary basis for the suggestion that ‘CR’ would incriminate himself, much less exonerate the applicant.

78. The applicant also sought the issue of a summons to a Detective who was said to be the “crime manager” at Mascot police station in 2006. In his written submissions, the applicant stated that he sought to obtain evidence of what he describes as a formal “disclosure” meeting with police and ‘C’. The applicant asserted that at his trial ‘C’ denied that this meeting occurred. The applicant noted that “on sentence [the trial judge took this denial] as truth, and was part of his reasoning for his decision”.

79. In oral submissions on the appeal, the applicant contended that the material he sought related to the removal of ‘C’s son from her care in 2007 and statements made by ‘C’ to him while he was in custody at that time. In support of this contention, the applicant swore an affidavit stating that this Detective conducted an interview with the applicant and ‘C’ for the purpose of disclosing his criminal record to ‘C’, that is, in effect, warning ‘C’ that the applicant was a convicted paedophile. The affidavit also contends that the Detective could somehow confirm that the meeting with the applicant’s former solicitor and ‘C’ referred to above took place. He also stated that this Detective was present during the arrest after the execution of the search warrant in June 2007 at ‘A’, ‘B’ and ‘C’s mothers’ home when he was found sleeping in the same room as ‘B’ and another child. In oral submissions on the appeal, the applicant claimed that, in executing the warrant, one of the police officers asked the Detective “Do you want me to wake the girls” and the Detective replied “No that’s - they’re okay, they’re safe”.

80. I have reviewed the cross‑examination of ‘C’ at the trial and no questions were put to her concerning any such “disclosure meeting” in 2006 and 2007. Even if they were, then taken at its highest any such material could only affect ‘C’s credit as a witness. Thus, even if a summons yielded the material described there is no basis for contending that it would cast any doubt on the applicant’s guilt. Similarly, there is no mention of any such interview with ‘C’ in the trial judge’s reasons for sentence.

81. As for the execution of the search warrant, presumably the applicant pointed to the statement he attributes to the Detective as some form of opinion that he did not represent a threat to the girls that were left sleeping, including ‘B’. Given that the applicant had just been arrested that was not surprising but, in any event, any opinion to that effect held by the Detective was irrelevant to the trial judge’s assessment.

82. The fourth person that the applicant sought to summons was the solicitor who acted for him at his trial. He contended that the solicitor obtained “crucial evidence from ‘DOCS’ records regarding who complainant [‘B’] was actually engaged with sexually”. The applicant contended that at a “pre-trial [hearing] with Judge Sweeney, it was expressed by [his Counsel] that we needed specific evidence from ‘DOC’s’ records to prove without a [doubt]” that ‘B’ did not “talk about me (Andrew Sivell) to ‘DOCS’ (in many interviews)”.

83. To address this complaint, it is necessary to describe another pre-trial application decided by Judge Sweeney. In late 2014, the applicant’s legal representatives caused a subpoena to be issued to the Department of Family and Community Services (“FACS”) seeking records referable to both ‘A’ and ‘B’. No documents were produced in respect of ‘A’ but documents were produced in respect of ‘B’. Following an application by ‘B’, on 8 December 2014, Judge Sweeney set aside the subpoena and ordered the documents be returned. Her Honour found that the documents recorded “protected confidence[s]” within the meaning of s 296 of the CPA, which had the consequence that leave of the Court was required before the subpoena was issued, before any document was produced or was adduced in evidence (s 298). One of the preconditions to the grant of any such leave was that the “document or evidence will, either by itself or having regard to other documents or evidence … have substantial probative value” (s 299D(1)(a)).

84. Before Judge Sweeney it was contended on behalf of the applicant that the material sought by the subpoena was directed to establishing whether ‘B’ had complained to FACS about the applicant or made similar allegations against other persons “which were not proceeded with or conceded to be wilfully false”. Judge Sweeney inspected all of the documents. Her Honour found that it included irrelevant material and material that fell within the exclusion of evidence of prior sexual experience in s 293(3) of the CPA (and did not fall within any exceptions to that provision), such that it could not have probative value. Otherwise her Honour concluded that “none of the material has substantial probative value of the kind sought by the accused”.

85. During oral submissions on the appeal, the applicant contended that, despite Judge Sweeney’s ruling, his solicitor had obtained or at least inspected the FACS file. According to the applicant, his solicitor advised him that the documents revealed that over the years ‘B’ had not complained about the applicant but the material “does name two or three adults that she’s been having sex with since she was nine or ten to 14”, including the applicant’s father. At the trial, it was suggested to ‘C’ that she was motivated to lie about the applicant to protect his father who was providing her with support and accommodation. ‘C’ denied the suggestions.

86. All of these assertions by the applicant do not advance his case. Assuming the applicant is correct and his solicitor obtained the material that Judge Sweeney ruled should be returned to FACS, and that it showed ‘B’ had had sex with other adults, that material would be excluded under s 293(3) of the CPA. None of the tests for fresh evidence or new evidence are engaged unless the material in question is admissible, which it is not. To the extent that other material may be sought to advance a case theory that involves ‘C’ protecting the applicant’s father, that could only relate to ‘C’s credibility as a witness. For the reasons already stated, ‘C’s credibility was immaterial to the trial judge’s guilty verdict. Otherwise, no reason has been advanced to doubt Judge Sweeney’s assessment that the material sought lacked substantial probative value.

Scar on his Scrotum

87. In further written submissions provided just prior to the hearing of the appeal, the applicant added a further particular of this ground, namely evidence of a medical procedure that was performed on him when he was 12 years of age “and which left a scar on his scrotum”. The applicant said that by 5 September 2018 he was expecting to receive a statutory declaration from his father that would explain the “details” of an “undescended testicle operation” undertaken on him 1976. He said that it was his “aim at [the] appeal, [to establish] that this scar was made because of the said operation in 1976 and that … if this information was made available at trial … I would have been found not guilty”. The applicant claimed that the health records relating to the procedure had not been retained and thus he needed confirmation from his father. The applicant was able to provide a medical record dated 28 September 1981 when he was aged seventeen that recorded the results of an examination. In relation to the entry for “identifying marks etc”, a box headed “Abnormal” was ticked. A handwritten note stated “scars: ... R orchidectomy”. An orchidectomy is an operation for the removal of a testicle.

88. In cross‑examination at the trial, ‘A’ said that the only time she ever saw the applicant’s penis was during the events the subject of count 1. She said that she could not describe his penis or remember what colour it was. She also said that she did not notice anything about the applicant’s “genitals and pubic hair area” because “I was not going there searching for it”. ‘A’ was not asked any questions about any scar in or around the applicant’s genitals.

89. During her interview in 2012 that constituted her evidence in chief, ‘B’ was asked to describe the applicant generally. She agreed that he did not have tattoos, piercings, scars “or anything like that”. ‘B’ was cross‑examined about the applicant’s penis, including as to the presence and colour of pubic hair. At one point she was asked about the “particular shape” of his penis. The effect of her answer was that she did not recall (“I don’t know what shape it was, bro, like fuck”). No questions were directed to whether ‘B’ had any recollection of the existence of a scar in the applicant’s scrotum area.

90. As noted, for some period ‘C’ was in a relationship with the applicant. She was not asked any questions about scarring in the applicant’s genital area.

91. The evidence, such as it is, concerning the scarring to the applicant’s scrotum area and the likely absence of a testicle is certainly not “fresh evidence”. During oral argument on the appeal, the applicant stated that he advised at least one of his Counsel of the scarring but asserted it was not raised at his trial because he “couldn’t get the information”, being the medical records or information from his father noted above. However, on the applicant’s case, the medical reason why he has any scarring is irrelevant. The only potentially relevant matter is the fact of the scarring itself. Self‑evidently, that was known to the applicant throughout the trial and apparently to his legal representatives. It may be that the cross‑examination of ‘A’ and ‘B’ on their knowledge of the appearance of the applicant’s groin area was an attempt to lay a foundation to contradict them if they indicated either a specific memory of the appearance of his genitals or even if they acknowledged that they had the opportunity to observe them and thus notice a scar. However, their answers did not allow this to be developed. Instead, the evidence in relation to ‘A’ was that the only time she saw his penis was when she was approximately twelve years old during the commission of the offence that is count 1 of the indictment and that she had no specific recollection of noticing anything. ‘B’s evidence was not relevantly different, except that she was sexually assaulted by the applicant when she was nine years old.

87. Given the age of ‘A’ and ‘B’ at the time of the abuse they suffered, the nature of the abuse they suffered, the years that passed between the abuse and the time they gave evidence and the evidence they gave as to the opportunity they had to observe the applicant’s penis and genitals, it follows that their evidence is not undermined by any proof of the existence of scarring on the applicant’s genitals or the absence of a testicle. It follows that the evidence that the applicant has provided and anticipates providing on this issue is not such that it has “convince[d] the Court upon its view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand” (Ratten at 520).

88. I would refuse leave to raise ground 3.

Conclusion on Conviction Appeal

94. It follows that I consider that the conviction appeal should be dismissed.

Sentence Appeal

95. The effect of the trial judge’s findings in relation to ‘A’ was that the applicant was convicted of seven offences of aggravated sexual assault (either attempted or actual) without consent contrary to former s 61J(1) of the Crimes Act, the circumstance of aggravation being that ‘A’ was under the age of sixteen (counts 2, 5, 9, 10, 11, 12 and 13). The maximum penalty for this offence was 20 years imprisonment and it carried a standard non‑parole period of 10 years imprisonment. The applicant was convicted of two offences against ‘A’ of using a child under the age of fourteen years for pornographic purposes contrary to a previous version of s 91G(1)(a) of the Crimes Act (counts 6 and 8). The maximum penalty for this offence was 14 years imprisonment. No standard non‑parole period was specified. (A standard non-parole period for this offence was only introduced in June 2015 (Crimes Legislation Amendment (Child Sex Offences) Act 2015, Sch 2.)) The applicant was also convicted of three offences against ‘A’ of indecent assault on a child under the age of sixteen years contrary to former s 61M(2) of the Crimes Act (counts 3, 4 and 7). The maximum penalty for that offence was imprisonment for 10 years and it carried a standard non‑parole period of 8 years imprisonment. The applicant was also convicted of one offence against ‘A’ of committing an act of indecency towards a child under the age of sixteen years contrary to former s 61N(1) of the Crimes Act (ie, count 1). The maximum penalty for that offence was imprisonment for 2 years. All of these offences were committed between April 2005 and June 2007 when ‘A’ was aged between twelve and fourteen years of age.

96. The effect of the trial judge’s findings in relation to ‘B’ was that the applicant was convicted of two offences of sexual intercourse with a child under the age of ten years contrary to s 66A(1) of the Crimes Act (counts 17 and 19). The applicable maximum penalty at that time was 25 years imprisonment. The offence carried a standard non‑parole period of 15 years. The applicant was also convicted of four offences against ‘B’ of indecent assault on a child under the age of sixteen years contrary to former s 61M(2) of the Crimes Act (counts 14, 15, 16, and 18). As noted, those offences carried a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years imprisonment. All of these offences were committed around 2006 or 2007 when ‘B’ was between eight and nine years of age.

97. As noted, on 29 February 2016 the trial judge imposed an aggregate sentence on the applicant of 21 years and 6 months commencing 8 January 2014 and expiring on 7 July 2035. His Honour specified an aggregate non-parole period of 16 years commencing 8 January 2014 and expiring on 7 January 2030. The sentence was made partially concurrent with the sentence imposed by Judge Sweeney in April 2015 for possession of child pornography which commenced on the date he was arrested and refused bail, namely 8 October 2013 (see [113]).

98. Pursuant to s 53A(2)(b) of the Crimes(Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”), his Honour specified indicative sentences for each offence which are summarised in the following table:

Count	Section Crimes Act	Offence	Max penalty	SNPP	Complainant	Indicative Sentence
1.	61N(1)*	Act of Indecency <16	2 years	-	‘A’	1 Year
2.	61J(1)	Aggravated sexual assault <16	20 years	10 years	‘A’	8 Years NPP 6 Years
3.	61M(2)*	Indecent assault, < 16	10 years	8 years	‘A’	3 Years NPP 2 Years 3 Months
4.	61M(2)*	Indecent assault <16	10 years	8 years	‘A’	4 Years NPP 3 Years
5.	61J(1)	Aggravated sexual assault <16	20 years	10 years	‘A’	8 Years NPP 6 Years
6.	91G(1) (a)*	Use ch <14 for porn purposes	14 years	- (since introduced)	‘A’	4 Years
7.	61M(2)*	Indecent assault <16	10 years	8 years	‘A’	6 Years NPP 4 Years 6 Months
8.	91G(1) (a)*	Use ch <14 for porn purposes	14 years	-	‘A’	5 Years
9.	61J(1)	Aggravated sexual assault <16	20 years	10 years	‘A’	8 Years NPP 6 Years
10.	61J(1) 344A	Attempted Aggravated sexual assault <16	20 years	10 years	‘A’	9 Years NPP 6 Years 9 Months
11.	61J(1)	Aggravated sexual assault <16	20 years	10 years	‘A’	8 Years NPP 6 Years
12.	61J(1)	Aggravated sexual assault <16	20 years	10 years	‘A’	8 Years NPP 6 Years
13.	61J(1) 344A	Attempted Aggravated sexual assault <16	20 years	10 years	‘A’	9 Years NPP 6 Years 9 Months
14.	61M(2)*	Indecent assault <16	10 years	8 years	‘B’	4 Years NPP 3 Years
15.	61M(2)*	Indecent assault <16	10 years	8 years	‘B’	5 Years NPP 3 Years 9 Months
16.	61M(2)*	Indecent assault <16	10 years	8 years	‘B’	5 Years NPP 3 Years 9 Months
17.	66A(1)	Sexual intercourse <10	25 years#	15 years	‘B’	11 Years NPP 8 Years 3 Months
18.	61M(2)*	Indecent assault <16	10 years	8 years	‘B’	5 Years NPP 3 Years 9 Months
19.	66A(1)	Sexual intercourse <10	25 years#	15 years	‘B’	11 Years NPP 8 Years 3 Months

(* - Section has since been repealed or substantially amended. # Maximum penalty has since increased to life imprisonment.)

The Sentencing Judgment

99. The sentencing judgment was comprehensive. After recounting the maximum penalty for each offence and summarising the facts as found in relation to each offence, his Honour addressed the objective seriousness of the offending, summarised the applicant’s extensive criminal record of sexual offences against children, addressed his subjective case and various other factors relevant to sentencing.

100. The following six points should be noted about his Honour’s sentencing judgment.

101. First, his Honour made numerous findings in relation to the relative seriousness of the offences. Thus, in relation to count 1 committed against ‘A’, his Honour found that the applicant had “manipulated” the chance meeting at the train station and “committed a sexual act towards her as soon as he gained access to her in her own home”. With counts 2 to 5, his Honour found that the applicant “created an opportunity by deception” to remove ‘A’ from her home with the intention of “isolat[ing] the child from her family for his own sexual gratification”. The combination of those circumstances and the acts constituted by counts 2 to 5 made the “offending objectively of a most serious kind”.

102. In relation to counts 6 and 8, which concerned the use of ‘A’ for pornographic purposes, his Honour noted that there was “no evidence to suggest the offender used the material he obtained other than for his own sexual gratification” but also accepted that there was no evidence it was disseminated. His Honour found that the applicant “sacrificed the innocence of [‘A’] for his own perverse sexual gratification”.

103. With counts 7 and 8, his Honour found that the applicant took ‘A’, “who was then in his care”, to the premises of another male where was she was photographed and sexually assaulted. His Honour found that the seriousness of the offending was heightened by the presence “of the other male” (see [17]). His Honour found that these offences “represent[ed] criminality of a high order”. Similarly, with counts 9 to 13, his Honour found that the applicant used the opportunity that arose from the fact that ‘A’ was staying in his and ‘C’s apartment to sexually assault her. His Honour found that it was the “nature of the sexual acts [and] circumstances in which the acts occurred, including the breach of trust, which placed the offending here objectively within a most serious category of sexual offending against children”.

104. His Honour found that the sexual abuse of ‘B’ “involved criminal conduct of a high order” given her age, that she was in the applicant’s care when he committed the offences the subject of counts 14 and 15 and that he committed the other offences against her in her “family home”. His Honour found that the applicant “destroyed the innocence” of ‘B’ “as he had destroyed the innocence” of ‘A’.

105. Overall, his Honour found that “from the outset” the applicant “intended to intrude” in ‘A’ and ‘B’s family to “gain access to [them] for his own sexual gratification”. After he obtained their mother’s confidence, he “took advantage of opportunities” as they arose and his conduct was “calculated, designed and deliberate”. His conduct demonstrated a “disturbing pattern of behaviour” involving “degrading sexual conduct” towards ‘A’ and ‘B’. His Honour found that the applicant would have been aware of ‘A’ and ‘B’s fear as they were being abused and that their compliance was “the result of the position of authority he held over them”. His Honour noted that the conduct took place over a “lengthy period of time”.

106. His Honour ultimately concluded that any sentence “calls for a strong measure of denunciation, deterrence and protection of the community”.

107. Second, his Honour set out the details of the applicant’s long criminal history of sexually abusing children. In September 1999, the applicant was convicted in the District Court in Queensland of “indecent treatment of a child under 16 years of age” and sentenced to a custodial sentence that was partly suspended. The offences were committed in July 1998 when the applicant lured two young girls and offered them money to take “modelling photographs”. He took them to a secluded area and directed they adopt different poses, including directing one girl to rub her vagina.

108. In June 2002, the applicant was sentenced in the District Court to four years imprisonment for one count of aggravated indecent assault on a child under the age of sixteen years with another such offence taken into account on a “Form 1” (see Sentencing Procedure Act, s 32). Both offences involved him touching young girls near or on their vaginas. With one offence, he gained access to the victim’s home and with the other he lured her to a stairwell to take photographs.

109. In March 2007, an interim prohibition order was made against the applicant under the Child Protection (Offenders Prohibition Orders) Act 2004 which precluded him from having contact or being in the company of a person under the age of 18. As noted, on 3 June 2007 a search warrant was executed at ‘A’ and ‘B’s home and the applicant was located in a bed with ‘B’ and a cousin. The applicant was arrested. He was convicted of breaching the order and received a sentence of 10 months imprisonment with a non‑parole period of 7 months.

110. At the time the warrant was executed, the police searched the applicant’s car and found child pornography in a briefcase. In November 2008, he was convicted of this offence and sentenced to 2 years and 9 months imprisonment with a non‑parole period of 1 year and 11 months. The material included images of “female children” which the sentencing judge described as “most disturbing”. An appeal to this Court from that sentence was dismissed (R v Sivell [2009] NSWCCA 286).

111. In 2011, the applicant was convicted of inciting a person under the age of sixteen years to commit an act of indecency and sentenced to 10 months imprisonment with a non‑parole period of 7 months. The trial judge was only provided with the reasons for sentence in the Local Court as opposed to the police facts. Those reasons indicated that the applicant undertook a “cold call” to a child and “misrepresented himself in an attempt to gain the trust of the child”. The applicant was also convicted of again contravening a prohibition order and using a carriage service to menace, harass or cause offence. He received custodial sentences for those offences.

112. In September 2013, the applicant was sentenced to a term of just over 11 months’ imprisonment for a sexual assault committed on a female relative in 1981 when the relative was eleven and the applicant was seventeen.

113. As noted, in April 2015 the applicant was sentenced by Judge Sweeney on the count of possessing child abuse material which was severed from the indictment the subject of this application. He was sentenced to imprisonment for 2 years commencing 8 October 2013 with a non‑parole period of 18 months. The material the subject of this offence was found in his possession when he was arrested in October 2013 for the offences committed against ‘B’. He was arrested only one month after his release from custody.

114. Having regard to this criminal history, his Honour concluded that “more weight needs to be given to personal deterrence and the protection to the community when sentencing the offender”.

115. Third, as noted, his Honour described the applicant’s background. At the time of sentencing, he was 51 years of age. He appeared to have no family support. His mother had committed suicide when he was 27. His parents had separated when he was twelve and reunited when he was fifteen. He experienced difficulty at school. He was briefly in the Navy before working for four years as a pastry chef. The applicant advised a Community Corrections Officer that he had been sexually abused by his father but his Honour made no finding to that effect. Although a psychiatric report was tendered, his Honour found that he could not “conclude the [applicant] was suffering from any underlying mental condition which impacted upon his judgment at the time of the offending”.

116. Fourth, given the conduct of the trial, his Honour could not conclude that the applicant had exhibited any remorse or had any insight into his offending. Not surprisingly, his Honour found that the applicant “poses an extreme risk of sexual offending against young children” and that he had “poor prospects of rehabilitation”.

117. Fifth, his Honour addressed the factors relevant to the accumulation of the sentence for the individual offences. His Honour noted that while some of the offences occurred as part of the one episode, others occurred on separate occasions and that there were two victims.

118. Sixth, his Honour noted the effect of the victim impact statement provided by ‘A’ which describes the profound effect that the offending had upon her (Sentencing Procedure Act, s 28). His Honour noted that ‘A’ stated that the applicant “remains in the mind of [‘A’] day to day”. She said that she “experiences feelings of shame and worthlessness and feels frightened”.

Ground 1 of Sentence Appeal: Sentence Alleged to be Manifestly Excessive

119. Only one ground of challenge to the sentence was put forward, namely that “his Honour imposed sentences that were in all the circumstances manifestly excessive”.

120. While the ground of appeal refers to “sentences” in fact there was only one sentence imposed, namely the aggregate sentence. The written submissions in support of the ground do not suggest that any of the indicative sentences were inappropriate and they otherwise accept that the “structure of the sentence accords with authority”. Nevertheless, it was contended that the “overall length of sentence is manifestly excessive in all the circumstances”. The submissions refer to authorities that explain the application of the totality principle and contended that at the time of his release the applicant would be “well into his 60s when eligible for release”, such that the sentence imposed upon the applicant is “a crushing sentence”.

121. The principles expounded by High Court decisions applicable to a challenge to a sentence on the basis that it is manifestly excessive were summarised by Hulme J in Obeid v R [2017] NSWCCA 221 at [443] as follows:

“Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

122. Where the effect of one or more sentences imposed on an offender is such that their total impact might be said to have a “crushing impact”, that of itself will not be sufficient to establish that the sentence(s) are manifestly excessive. Instead, the correct position is that one matter that is “considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release” (R v M.A.K.; R v M.S.K. [2006] NSWCCA 381 at [17]). Nevertheless, the “sentencing court must, however, take care when applying the totality principle” in that “[p]ublic confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending (R v M.A.K.; R v M.S.K. at [18]). The ultimate question is whether the sentence imposed bears reasonable proportionality to the objective gravity of the offences for which the applicant is to be sentenced (ZA v R [2017] NSWCCA 132 at [84]). As Doyle CJ (with whom Debelle and Besanko JJ agreed) stated in R v E (2005) 93 SASR 20; [2005] SASC 332 at 30 [38]:

“Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.” (emphasis added)

123. I have summarised the findings made by his Honour concerning the nature of the offending, the surrounding circumstances, and the applicant’s subjective case, including his appalling criminal record and his poor prospects of rehabilitation. All of the indicative sentences stated by his Honour were appropriate given his Honour’s findings. While it is only of limited assistance, it is still of some significance to note that, if all of the indicative sentences were accumulated, they would total 122 years, which is obviously far more than the sentence imposed of just over 21 years. In any event, considered in their totality, the applicant’s crimes against two vulnerable children committed over a sustained period after he manipulated his way into their family life were very grave. His appalling criminal history disentitles him to any leniency. If ever there was a case where a “very heavy sentence was called for” it was the applicant’s case. The aggregate sentence imposed was not manifestly excessive.

Conclusion on Sentence Appeal

124. As noted, the applicant requires an extension of time in which to bring his application for leave to appeal against his sentence. I would grant the extension of time and grant the applicant leave to appeal, but I would dismiss the appeal.

Proposed Orders

125. I propose the following orders:

(1)   The applicant’s notice of motion filed 17 September 2018 be dismissed;

(2)   Leave to appeal in respect of grounds 2 and 3 of the appeal against conviction be refused;

(3)   The appeal against conviction be dismissed;

(4)   The applicant be granted an extension of time in which to seek leave to appeal against his sentence until 7 September 2018;

(5)   Grant leave to appeal against sentence but the appeal be dismissed.

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Decision last updated: 17 April 2019