SKA v R; R v SKA - [2009] NSWCCA 186

No judgment structure available for this case.

Appeal Outcome: Referred to an enlarged Full Court (s100/2010), 30 July 2010, [2010]HCATrans 198

New South Wales

Court of Criminal Appeal

CITATION: SKA v R; R v SKA [2009] NSWCCA 186

HEARING DATE(S): 13 May 2009

JUDGMENT DATE:
14 July 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Simpson J at 3

DECISION: (i) Appeal against conviction dismissed; (ii) leave to appeal against sentence granted, appeal against severity of sentence dismissed; (iii) Crown appeal allowed in respect of the sentence imposed in respect of Count 1; (iv) that sentence quashed, in lieu thereof, the appellant be re-sentenced to imprisonment with a non-parole period of 8 years, commencing on 13 March 2009 and expiring on 12 March 2017, and a balance of term of 4 years, expiring on 12 March 2021; (v) the sentence imposed in respect of Counts 2 and 3 be varied so as to commence on 13 March 2009; the non-parole period to expire on 12 March 2011; the balance of term will expire on 12 March 2013; (vi) the sentences imposed in respect of Counts 4 and 5 be varied so as to commence on 28 December 2009; the non-parole period in respect of Count 4 to expire on 27 December 2013; the balance of term to expire on 27 December 2017; the non-parole period in respect of Count 5 to expire on 27 December 2011; the balance of term to expire on 27 December 2013.

CATCHWORDS: CRIMINAL LAW – particular offences – offences against the person – sexual offences – CRIMINAL LAW – appeal against conviction, whether verdict unreasonable or insupportable having regard to the evidence – CRIMINAL LAW – appeal – procedure – evidence given in trial by video pursuant to Evidence (Children) Act 1997 (now Criminal Procedure Act Pt 6) – whether appeal court should view video – court should proceed on transcript of video-recording – CRIMINAL LAW – sentence – appeal against severity of sentence – Crown appeal against manifest inadequacy of sentence – assessment of objective gravity – s 54A and s 54B of the Crimes (Sentencing Procedure) Act 1999 – requires assessment of objective gravity of each offence individually – application of R v Way [2004] NSWCCA 131 – failure to have regard to standard non-parole period – sentence so far below the standard non-parole period as to denote error – failure to adequately reflect objective gravity of offence – accumulation – general deterrence – appellant re-sentenced in respect of Count 1 – overall effective sentence increased

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Evidence (Children) Act 1997

CATEGORY: Principal judgment

CASES CITED: Carroll v The Queen [2009] HCA 13
DPP v AZ [2009] NSWCA 51
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: SKA (Applicant/Respondent)
Regina (Respondent/Applicant)

FILE NUMBER(S): CCA 2008/2740

COUNSEL: W Dawe QC/M Gallagher (Applicant/Respondent)
J Dwyer (Respondent/Applicant)

SOLICITORS: Crawford & Duncan Lawyers (Applicant/Respondent)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent/Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/11/0763

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 6 February 2009

2008/2740

McCLELLAN CJ at CL
JAMES J
SIMPSON J
14 July 2009

SKA v R

R v SKA

Judgment

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

2 JAMES J: I agree with Simpson J.

3 SIMPSON J: On 12 August 2008 the appellant was arraigned on an indictment containing five counts, each alleging sexual impropriety against the complainant, MR. He entered a plea of not guilty to each count. A jury was empanelled and a trial proceeded. On 21 August the jury returned verdicts of guilty on all counts. On 6 February 2009 Finnane DCJ sentenced the appellant, structuring the sentences so that they were partially concurrent and partially cumulative. The effective overall sentence that resulted was one of a non-parole period of 4 years, 9 months and 15 days, commencing on 6 February 2009, and expiring on 20 November 2013, with a balance of term of 4 years, expiring on 20 November 2017. (I will set out below the sentences in detail.)

4 The appellant appeals against the convictions. He seeks leave to appeal against what he asserts is the manifest excessiveness of the sentences. The Crown appeals against what it asserts is the manifest inadequacy of the sentences.

Background

5 The appellant is the uncle by marriage of the complainant. The complainant’s father is the brother of the appellant’s wife. The complainant was born in April 1996. She has two older sisters, one of whom, L, is three years older than she is. The appellant has two daughters, Sh and Sa. Sh is three years younger than the complainant (born in 1999). Sa is 10 years younger than the complainant (born in 2006).

6 Both families originated in India. In May 2000, in complicated circumstances it is not necessary to recount, the appellant and his wife (BA) and daughter Sh migrated to Australia. In July 2000 the complainant with her family (her parents and two sisters) also migrated to Australia. Initially, for a short period, they were given accommodation by the appellant and his family in their home. They then took rented accommodation in a suburb of western Sydney. The two families were close (although just how close was a matter of some difference of opinion). The complainant gave evidence that she and her cousin Sh were particularly close. This was not disputed. There were many occasions on which the complainant slept at the appellant’s home, sharing a bedroom (and double bed) with her cousin Sh and her sister L. The frequency with which this happened was also a matter of some disagreement. A matter of significant dispute is the date on which the overnight stays began.

7 Other siblings have also migrated to Australia.

8 The above represents as much as can be said that is uncontroversial. I will return to outline the Crown case, and the defence case.

The charges

9 Although the Crown alleged that the appellant molested the complainant repeatedly, in the end the charges related to two distinct episodes. Those episodes were alleged to have occurred in 2004 and 2006. The complainant also gave evidence of another incident, not the subject of any charge, which she said had occurred when she was four years old (in 2001). This, she said, was the first time the appellant sexually interfered with her. I will refer to the three episodes as, respectively, the 2001 allegation, the 2004 allegations, and the 2006 allegations.

10 All charges were brought under the Crimes Act 1900. They were as follows:

Count 1

Sexual intercourse with child under the age of 10 years (8 years), committed between 1 June and 31 July 2004 (s 66A);

Counts 2 and 3

Aggravated indecent assault on a child under the age of 10 years (8 years), committed between 1 June and 31 July 2004 (s 61M(2));

Count 4

Aggravated sexual intercourse with child between 10 and 14 years (10 years) and under the appellant’s authority, committed between 1 December and 25 December 2006 (s 66C(2));

Count 5

11 The aggravating feature alleged in each of Counts 2 to 5 was that, at the time of the commission of the offence, the complainant was under the authority of the appellant.

12 The complainant gave an account of sexual encounters with the appellant. Because of the manner and circumstances in which her evidence was given (see below), it is not easy to discern a clear narrative of what she said occurred. Her account may be paraphrased as follows.

The initial incident – the 2001 allegation

13 The complainant said that the first incident occurred when she was four years old. She said that she was at the appellant’s home, in a double bed with L. Sh, who was then one year old, was not present. The appellant came to the bedroom, woke her, then touched her on the breast and the vagina. She said he was “groping” and “feeling around” with his hands. She said that she made an excuse about having to move her shoes, got out of bed, and then returned, hoping that the appellant would not do it again. The appellant was lying in bed with L. He again touched the complainant on the vagina, and on the breast. After that he left the room.

Counts 1 – 3: the 2004 allegations

14 The events giving rise to Counts 1 to 3 allegedly took place between the beginning of June and the end of July 2004. The complainant was then 8.

15 Her account of these offences was similar to her account of the earlier events. She said that she was in the bed. L and Sh were also in the bed. The appellant entered the room and lay in the bed. He put one hand inside her underwear, and, using his fingers, penetrated her vagina. She moved so as to avoid him, and tried to roll over. He put his leg partly over her. She woke Sh and asked her to play a game. The appellant ceased what he was doing and left the bed. Sh then went back to sleep. The complainant tried to sleep. The appellant returned and began fondling the complainant around the breast, inside her pyjamas. She pushed him away. The complainant said that she needed to use the toilet. L accompanied her and they then returned to the bed. The complainant went to sleep. The appellant again fondled her breasts.

16 The act of digital penetration gave rise to Count 1. The two acts of breast fondling gave rise to Counts 2 and 3.

17 The following morning the complainant and Sh were playing on the bed, tickling each other. The appellant entered the room. L, who was also present, left to say good morning to her aunt, the appellant’s wife. The appellant tickled Sh, then tickled the complainant. Sh and the complainant decided to go to breakfast. The appellant asked them to “play more”. They declined. Sh and the complainant walked away. The appellant picked up the complainant. She said:

“He was just holding me and everything.”

18 No charges were laid arising out of this allegation.

Counts 4 and 5: the 2006 allegations

19 The complainant said that she and L were having a sleepover with Sh. All three girls were in the bed together. L and Sh were asleep. The complainant was awake. The appellant entered the room to tuck them in, got into the bed and “touched me down here”.

20 The appellant put his hand inside the underwear the complainant was wearing, touched her on the vagina, and “fiddled around his fingers in there”. He inserted his fingers into her vagina. She tried to move away, but he persisted. Neither the complainant nor the appellant spoke during this encounter. The complainant said that she told the appellant that she needed to get a drink of water, got up, went to the laundry, and sat behind the door. She sat there for some time (10 to 15 minutes). The appellant entered the room and asked if she was alright. She returned to the bedroom and the appellant also returned to the bedroom, and again touched her, this time around the breast area. He fondled her breasts inside her pyjama top. She pushed his hands away but he persisted. The appellant then left.

21 The act of digital penetration alleged by the complainant gave rise to Count 4 on the indictment; the act of fondling her breasts gave rise to Count 5 (aggravated indecent assault).

22 The above outline is the bare essentials of the allegations made against the appellant.

The trial

The complainant’s evidence

23 Pursuant to s 306S of the Criminal Procedure Act 1986, the evidence in chief of the complainant was given in the first instance by way of a video recorded interview with a police officer, Detective Senior Constable Bagnall, which was played to the jury. The interview took place on 10 April 2007. The complainant was then 10 days short of her 11^th birthday.

24 The video was played to the jury, following which the complainant gave oral evidence. She was cross-examined by senior counsel for the appellant.

25 It is appropriate here to comment on one feature of the manner in which the complainant gave her account to Detective Bagnall. It was quite common, throughout the interview, for her to use what might be described as a continuous tense – best described by illustration. In relation to the 2006 charges she was asked what happened after the appellant got into the bed. She answered:

“He just come behind me and then he just put, like his hand, on my, my, on this. Then, yeah, he’d just do that. And then I’d kind of just shift over and move and try and get a bit away …”

26 Later, still being asked about the 2006 events, she was asked where the appellant was when she said she needed to get a drink. She answered:

“He was, he’d kind of like follow a, a bit. Like, he would go, OK. And then I’d, I’d go. And then, a bit later, about 2 minutes later, he’d just get out of the bed, and he would go and he’d kind of walk near the place I said I’d be in then.”

27 Finally (although there were many more examples), she was asked if anybody else was in the bed. She answered:

“Just me, [Sh] and then he would come again. But that was for the, he came again and that was for the second time. And he’d just do the same thing. And like kind of touch around here and then he’d just, and then he would go a little while later.”

28 This speech mannerism can best be explained by an early answer given by her (in a passage that was excised from that which went to the jury). In an answer unresponsive to the question, the complainant said:

“Actually it’s like, it’s been continuous from, about 6 years now.”

29 Later, in another passage that was also excised from the recording which went to the jury, she said:

and he might be there and he might not, he just does that all the time

30 However, it was, of course, necessary that the Crown prove that the events the subject of the individual charges occurred, and this could not be done merely by proving a pattern of similar conduct. It is necessary, then, to look at the answers given by the complainant in answers to questions about those specific occurrences.

31 In relation to the 2004 events, when asked what happened after she “noticed” that the appellant was in the bed, she said:

He touched me in the vagina again

And he came back again and then he started touching me around the breast area, the same

32 When asked a specific question about the 2006 events, she said:

“Like, we were there and we were watching Charlie and the Chocolate Factory. And my big sister, not my biggest, like [L], she was there with us. And we were all there and she, then [L] fell asleep and [Sh] was there, in front of me. And then she fell asleep. So then I fell asleep. And then he came to tuck us in, and I don’t know what he was doing, but he just, he got into the bed and I was like, he got behind me and then he just, like touched me down here .

…

33 In answer to a later question she said:

“… and he just fiddled around his fingers in there.”

“He just moved them [his fingers] around and pushed them in [her vagina].”

“I think it was just usually every, around every one or two nights, I think.”

34 The complainant was asked to fix, as nearly as she could, the time at which the events occurred.

35 She said that the first incident (the 2001 allegation) occurred when she was four years old.

36 Initially, the complainant said that the incident the subject of the 2006 allegations occurred:

“… just before Christmas, around then.”

[She was giving these answers in April 2007.]

37 Also in relation to those charges she said that she thought that, prior to the events, she and Sh had watched, on a computer, a DVD of “The Incredibles”.

38 I will return to this.

39 It is clear from reading the whole of the transcript of the interview that the complainant asserted that all incidents took place in the same house, the house of the appellant and his family. That is a matter of some significance.

40 The above represents a synopsis of the answers given by the complainant to Detective Bagnall in the recorded interviews. Her evidence in chief, given via the video, was supplemented by oral evidence, both in chief and in cross-examination.

41 Perhaps the most significant aspect of her oral evidence, given in chief, concerned the timing of the events the subject of the 2001 allegations. In the interview, she said that they occurred when she was four, and she thought it was “around January, at the end of the holidays”. (Plainly, that would be January 2001.)

42 When asked why she thought it was then, she replied:

“Because I know that like during kindergarten, I’d think about it, like very (sic) day.”

43 In her oral evidence, she said that she thought that was a mistake, that she was confident that it occurred in “the holidays sometime”, and it may even have been as late as September of that year.

44 Also in chief, she gave some further answers to which it will be necessary later to make reference. She was asked how she felt about what was happening (the question clearly related to her kindergarten year). She answered:

“I guess sort of confused because I didn’t really sort of understand what was happening. I sort of felt like it happened to everyone, like it wasn’t anything huge so I just didn’t really get it.”

45 When asked why she did not tell anybody, she answered:

“Because I guess I was afraid of what other people might think if I said anything.”

46 She was then asked in relation to the 2004 allegations, how she felt about those offences. She answered:

“I think I was on the verge of sort of understanding what was going on but I think for the same reason I was still a bit afraid about telling people and what they might think and what might happen between us two families.”

47 She was asked why she did not say anything to the appellant and answered:

“I don’t know. I didn’t know how I felt about it. I was sort of really uncomfortable and that wasn’t really what my mind was on, saying anything about anything.”

48 The complainant was then cross-examined. She was asked why she wanted to return to the appellant’s home after these events had occurred. She said:

“It was very painful to go through that and sometimes I tried so hard to put it out of my mind, sometimes I believed it didn’t happen. But then sometimes I’d always have the hope maybe it might not happen and maybe I might just be able to spend a little bit of time with my cousins. But then it happened again and I was really sure it was like happening.”

49 The complainant was cross-examined about her revision of the timing of the 2001 allegation. It was suggested to her, somewhat obliquely, that she had revised the date because she had realised that the appellant and his family had not purchased and lived in the house where the events were said to have happened until April 2001. She accepted that that might have been “part of the reason” because it prompted her to think a little more about it.

50 However, it was also put to her that by September 2001 she was five, not four, years old.

51 She was then asked:

“Are you saying you weren’t really sure that it was happening?”

“No I am sure it was happening but after it happens to you it gets hard and you try to put it out of your mind as much as possible because you don’t want to remember and so you always have the hope of going there thinking it might not happen and maybe it was just something that you were thinking, but it did happen.”

52 It was then put to her directly that what she claimed had occurred had never occurred, either when she was four or at any other time. She answered, simply:

“It did happen.”

53 The complainant was then asked about when the 2006 events had occurred. She said that initially she had thought that was the day before New Year’s Eve, because she could remember some celebrations, but that she then thought it could have been a week earlier than that. She concluded that it may have been the day before Christmas Eve.

54 The complainant was asked about the 2004 events, and her evidence that this had been in June (which she pinpointed by reference to her mother’s birthday) and that, before the assault, she, with L and Sh, had watched a DVD of “The Incredibles”. I observe here that she was not prescriptive about that – she said that she “thought” that was the film she had watched. She had watched it on a computer.

55 I now propose to extract directly some of the evidence that she gave in this respect:

“Q. And on that night you say you had watched a movie or something?
A. Yes.

Q. And what movie was that?
A. I think that was The Incredibles.

Q. And indeed, you mentioned another movie to the police and then you settled on The Incredibles because you’re pretty sure it was The Incredibles?
A. Well I think it was The Incredibles.

HIS HONOUR

Q. Think it was I’m sorry?
A. I think it was The Incredibles that I watched. It was – I remember watching that.

[COUNSEL FOR THE APPELLANT]

Q. And you watched it on a computer or?
A. Yes.

Q. On the computer, on the laptop computer in [Sh’s] room?
A. Yes.

Q. What if I was to say to you that in 2004, [the appellant] did not have access to a laptop computer?
A. Well I said it was on a computer. I remember watching The Incredibles on the computer. It – from what I remember it was most likely on that night that I watched The Incredibles. I did watch a movie on that night though.

Q. You watched a movie on that night --
A. Yes.

Q. -- and as far as you’re concerned it was The Incredibles?
A. Yes.

Q. And you watched it on a computer?
A. Yes.

Q. And you’re sure about that?
A. (No verbal reply)

Q. You’re sure you watched it on a computer?
A. I think it was --

Q. …
A. I remember watching The Incredibles on a computer. I think it was on that night. I do know I did watch a movie on that night.

56 Senior counsel then turned to that part of the interview video in which the complainant had said that the events of the kind she described happened “every one or two nights”. He asked what she meant by that. She replied:

“Well I think what I meant to say was they had a sleepover every one or two months maybe say probably about one month every month but every time I slept over it happened.”

57 In answer to a question from the trial judge she said that, in the interview, she must have meant to say “months” instead of “nights”. She said that she slept over once every one or two months.

58 Another topic of cross-examination was the complainant’s evidence that, during the 2004 incident, she made an excuse to get out of the bed by saying that she needed to go to the toilet, and was accompanied by L.

59 She was asked how both fitted into the toilet. It was suggested to her that the toilet was “only a little room” (other evidence established that the toilet was a room separate from the bathroom).

60 The complainant answered by saying that, when she said they went to the toilet, she had, in fact not gone to the toilet but into the bathroom next to it. Senior counsel then asked her:

“But you were happy to leave it as going to the toilet until I just raised that then?”

61 She replied that she (in effect) used the terms “toilet” and “bathroom” interchangeably.

62 When the whole of the complainant’s evidence in relation to these allegations is taken into account, the question was, in my opinion, (inadvertently) unfair.

63 In the interview the complainant said that she had told the appellant that she needed to go to the bathroom (Q391), or that she would go to the toilet (Q508), and that L said she would go too. In the answer to Q523 she said that after she left, L got out of bed and followed her, and the appellant followed them both:

“And he went and he knocked on the door … and we got out of the bathroom and we went back to the bed.”

That is, although the complainant maintained that she had told the appellant that she was going to the toilet, she never said that she had actually done so. What she said in her oral evidence was not, as was the implicit suggestion in the cross-examination, inconsistent with what she had said in the interview.

L’s evidence

64 L gave evidence, also initially by way of a video of an interview in which she participated on 15 May 2007. She, too, was interviewed by Detective Bagnall.

65 L said nothing in the interview that corroborated any of the specific allegations made by the complainant. She confirmed that she and the complainant slept overnight at the appellant’s home on an irregular but reasonably frequent (at least once every three months) basis; but she did not recall any occasion on which the appellant had been in the bed.

66 She did give one answer that the jury might have regarded as significant. She said that sometimes the appellant would come to kiss Sh goodnight, but said that she (L) was usually asleep so she did not know if he stayed there. But she was then asked what she remembered him doing on such occasions. She answered:

“I don’t know. I remember this one time we were all watching a movie that he projected onto the wall and his daughter was asleep and [the complainant] was going to fall asleep and he just came around and he put his arm around me and stuff and I was just really uncomfortable and my parents, we’d all come over to his house because my parents were in the family room but you couldn’t see our room from there.”

The evidence of the complainant’s mother (LR)

67 The evidence in chief of the complainant’s mother was of little moment. In cross-examination it was put to her that, during 2001 (the year in which the appellant and his wife purchased the house) the complainant and her sister did not stay overnight there. She said that was not true. It was then put to her that in early 2002 a family dispute “soured relationships”, as a result of which there was very little contact between the two families. She said that, too, was untrue. She was asked about renovations to the appellant’s home during 2003. It was put to her that during the period of the renovations, her children did not stay overnight at the appellant’s. She also contradicted that proposition.

The evidence of the complainant’s father (BR)

68 The same issue, concerning the time at which the children began sleeping overnight at the appellant’s house, was raised with the complainant’s father. He was less specific than his wife had been. He recalled the renovation to the appellant’s house, but thought there would have been sleepovers during that time (contrary to the proposition that was put to him in cross-examination), although he could not recall dates.

69 That was the prosecution evidence concerning the events the subject of the charges. The Crown also tendered as evidence an alibi notice, given under s 105 of the Criminal Procedure Act 1986, by the appellant’s solicitors to the Crown. It is undated.

70 The notice was directed to the complainant’s assertion that the 2006 events had occurred “the day before Christmas Eve” (although, it will be recalled, the complainant was not dogmatic as to the date). The notice purported to give a detailed account of the appellant’s movements on that day (which was a Saturday). It asserted that, at about 1.30 to 1.40pm the appellant, with this wife and children, travelled to Narellan Vale, where they visited friends, Mr Raymond and Ms Sashi Krishna. They remained at the Krishna home until about 4.45pm, when they left and returned to their own home. They changed clothes, attended evening Mass, and again returned home where they remained until about 8.30 or 8.45pm. At that time, with their children, the appellant and his wife travelled to a nearby suburb, to the home of Mr Sylvester Jacob. They remained there until 10.30 or 11.00pm. Also present was a brother of the appellant wife’s and the complainant’s father, with his family. Between 10.30 and 11.00pm, the appellant and his family returned home, and remained there until the following day.

71 In response to this notice, which was not relied upon in the trial by the appellant, the Crown called as a witness Ms Sashi Krishna. She said that, although she had initially believed that the appellant and his family had visited her on 23 December, she later realised that was not so, and that the visit had taken place a week later, on 30 December. On 23 December she and her husband had driven to Queensland.

The defence case

72 The appellant gave evidence, as did his wife, Mr Sylvester Jacob, his wife’s brother, BR, and his wife’s sister, BT.

The appellant’s evidence

73 The appellant denied ever having improperly interfered with the complainant or ever having been in a bed with her.

74 In the course of examination in chief he produced a letter from solicitors. This established that he purchased the house in which the complainant claimed all offences had been committed on 20 April 2001 – thus conclusively showing that the first incident (if it occurred) could not have taken place in January 2001, as initially asserted by the complainant.

75 He gave evidence that, late in 2002, his wife’s mother (also the mother of the complainant’s father) visited the family for a holiday. He said that during this time a dispute occurred between his wife and the complainant’s mother, and that this detrimentally affected the relationship between the two families, to the extent that they ceased the level of socialising that had previously taken place. He did not believe that, prior to that argument, the complainant or L had ever stayed overnight at his home.

76 The appellant also identified a Crown exhibit (Ex C3), a plan of his house, as one showing proposed additions to the house, that he said were carried out in 2003. He thought that, because of the disruption caused by the renovation, the complainant and L did not stay overnight during that time.

77 He said that, in December 2003, the complainant’s mother and her children travelled to India. While they were away, the complainant’s father ate meals with the appellant’s family. On the return of the complainant’s mother and her children, the rift between the families healed, and the formerly close and friendly relationship resumed.

78 That occurred in the beginning of 2004, coinciding with Sh commencing school. She attended the same school as the complainant. The two girls became very close. It was then that the practice of children staying overnight in one another’s homes began. The appellant believed that the first time the complainant and L stayed overnight in his home was April 2004.

79 He said that he did not own a computer in 2004. He first had a computer in mid to late 2005. Sh used it to watch movies.

80 The appellant then gave some evidence about the circumstances in his household during 2004-5. He said that he and his wife were encountering difficulties conceiving a second child, and that his wife embarked on an IVF program. As a result, and because of the stress so occasioned, although he was uncertain, he thought it highly unlikely that the complainant slept at his home during that time.

81 He said that he and his wife did successfully conceive, and Sa was born (on his wife’s evidence, this was 21 April 2006). There were difficulties with settling the child, and she and her mother spent some time at a medical facility.

82 The point of all this evidence appears to have been to limit the extent of the interaction between the families, and cast doubt upon the complainant’s evidence as to the frequency with which she stayed at the appellant’s home.

83 The appellant then gave evidence about his activities on 23 December 2006. He said that the daughter of neighbours, who was close to Sh, spent some time with Sh at his home in the morning. The complainant was not present. At 6.00pm, the family went to Mass, as was their practice. He did not recall seeing the complainant at Mass, although it was also her family’s usual practice to attend.

84 The appellant and his family then returned home, and remained at home until about 8.45pm, when they took food to the home of his uncle, Sylvester Jacob, who was returning from India that evening. His brother-in-law (brother of his wife and of the complainant’s father) was also present with his family. They remained at Mr Jacob’s home until 10.30 or 11.00pm, then returned home.

85 The following day, 24 December, they spent some time in the morning shopping, and had dinner at the complainant’s home with her family and others.

86 The appellant also produced (Ex A7) a letter from Walt Disney Studios, confirming that the DVD of “The Incredibles” was released in Australia on 6 April 2005. In cross-examination he stated, with more certainty than in his evidence in chief, that the complainant had never stayed at his home before 2004. He claimed that she stayed only six to eight times in total during the period 2004 to 2006.

The evidence of the appellant’s wife - BA

87 The appellant’s wife, in a number of respects, essentially supported the evidence given by the appellant. She spoke of the rift between the families that occurred during the visit of her mother from India in 2002. She said that for a time thereafter they socialised as was necessary, but no more than was necessary to maintain civility. That continued until early 2004, when the complainant’s mother returned from a trip to India, when she exhibited a different attitude. She said that Sh stayed at the complainant’s home for the first time at about Christmas 2003. Prior to that neither the complainant nor L had stayed overnight at her home.

88 The improvement in relations between the families coincided with Sh commencing school. The two girls became good friends. It was BA’s practice to drop Sh at the complainant’s home, so that the complainant’s mother could take both girls to school.

89 BA thought that the first time the complainant and L stayed at her home was in April 2004. She could recall the first occasion because it caused her stress to have three children, not one, in her home, and she was concerned about meeting their needs.

90 She said that, in December 2006, no children other than her own stayed the night at her home. (The last occasion was on the day of the “grand final”, although she did not fix the date of that event.)

91 BA gave an account of family activities of 23 December that coincided with that given by the appellant.

The evidence of Sylvester Jacob

92 Mr Jacob is a relative by marriage of the complainant’s father’s brother. He said that in 2006 he travelled to India. He returned on 23 December, arriving at Sydney airport at about 8.00pm. He was met by relatives and driven home. Shortly after, the appellant and his family arrived, bringing food. They stayed until about 11.00pm. Mr Jacob produced documentary evidence of his travel arrangements. He was not cross-examined.

Other evidence

93 Evidence was also given by a sister and a brother of the complainant’s father and the appellant’s wife, but it is not necessary to lengthen this already lengthy account of the evidence by going into detail. Each generally confirmed aspects of evidence that had been given by the appellant, his wife, or other witnesses.

The appeal

94 The sole ground of appeal against conviction is that the verdicts are perverse and not supported by the evidence. (This is the ground more commonly pleaded as that the verdicts are unreasonable and cannot be supported having regard to the evidence, formerly that the verdicts were unsafe and unsatisfactory.)

95 The test to be applied in the determination of that ground of appeal remains that stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487. It is whether, upon the whole of the evidence in the trial, it was open to the jury to be satisfied beyond reasonable doubt that the accused person was guilty: see the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ.

96 But there is a qualification in the application of the test, which, in this case, for reasons that will appear below, has particular significance.

97 The appellate court is enjoined not to disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses; on the contrary, the appellate court is to pay full regard to those considerations.

98 But the Court also said:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced …”

99 I say that the qualification has particular significance in this case (as it will, in other cases in the future) for reasons that follow.

How should this Court deal with evidence given by video?

100 As I have mentioned above, the complainant’s evidence in chief was given by playing to the jury the videotape of her interview with Detective Bagnall.

101 The trial commenced on 12 August 2008. At that time, the legislation authorising the procedure adopted was the Evidence (Children) Act 1997. (That Act has now been repealed, and its provisions substantially re-enacted in Pt 6 of the Criminal Procedure Act. It is not necessary here to identify any variations between the two Acts. It is sufficient to note that what follows, although applicable to the repealed Act, may have application (with any necessary variations) to trials conducted under the replacement legislation.)

102 The issue which I am about to consider was not the subject of any ground of appeal nor any specific argument on appeal. It concerns the manner in which this Court ought to inform itself, for the purposes of applying the M test. In short, the question that arises is: ought this Court itself view the video of the complainant’s interview, or ought it rely on the transcript of that evidence?

103 At the outset of the hearing of the appeal Senior Counsel for the appellant was invited to comment on this question. He declined to submit that the Court ought to view the video, but added:

“Unless, of course, your Honours feel that you need to view the video to see the demeanour of the young girl during the course of the interview.”

104 On reflection, however, I have come to the tentative view that the question is one of considerable substance and ought be resolved in favour of the appellate court proceeding on the basis of the transcript of the evidence alone. The view is tentative because, as I have said, the question was not the subject of argument.

105 In R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 a related question arose concerning access a jury might have to videotaped evidence of the same kind. All members of the Court (Spigelman CJ, Wood CJ at CL, Hunt AJA, Howie and Johnson JJ) agreed that videotaped evidence ought not be, as a matter of course, sent to the jury room after the jury retires to consider its verdict. The majority considered that, in the circumstances of that case, the fact that the jury had had access in the jury room to the tape did not give rise to a miscarriage of justice. Spigelman CJ disagreed in the result. In the course of his judgment his Honour said:

“10 The authorities give particular emphasis to the possibility that the playing of the evidence in chief in videotape form carries with it the risk that the evidence will be given disproportionate weight. Two matters are emphasised. First, repetition, in a context where other balancing evidence is not or may not be repeated at all or as often. Secondly, the force attending evidence in an audio-visual form when compared with the force of evidence that may only be available in documentary or transcript form …

106 In my opinion, while the first matter referred to in [10] (repetition) is not here material, the second (the impact of evidence in audio-visual form compared with the impact of evidence in documentary or transcript form) is equally applicable to an appellate court considering an unreasonable verdict ground of appeal. Appellate judges are not immune from the subtle (or not so subtle) influence of evidence given in videotaped form.

107 This is really no more than a recognition of the long established recognition (repeated in M, in the passages quoted) that observation of witnesses can affect the impact of the evidence given.

108 Indeed, in relation to appeals, the risk is greater than the risk identified in NZ. In a trial, a jury has at least had the advantage of seeing and hearing all witnesses give their evidence. The vice identified in NZ was the capacity of a jury to repeat and review the videotaped evidence in that form, while having access only to the evidence of other witnesses through documentary or transcript form. In an appeal, the appellate court is confined to the impact of the evidence as recorded on the page. It would create an imbalance for the appellate court to be exposed to the visual image and oral recording of one witness and not others. I add that the impact will not necessarily favour one party or another. A complainant may present as forceful, truthful and convincing. Where that is so, it would be unfair for the appellate court to take that into account where the accused person has not had the same opportunity to be perceived other than via words on the page. Alternatively, a complainant may present on video as prevaricating, evasive or uncertain. Again, it would be unfair (this time to the prosecution) to allow that impression to influence the result where defence witnesses (and this is particularly so where the accused person gives evidence) are only perceived from the transcript.

109 The task that has to be undertaken, in accordance with M (and other authorities), requires an evenly balanced approach. It seems to me that that evenly balanced approach cannot be achieved where the evidence of one witness (or more than one witness) is given in a manner that is apt to have a disproportionate impact.

110 Accordingly, although I had, prior to the hearing of the appeal, viewed a small portion of the complainant’s interview, I decided against pursuing that course. I have reached my assessment on the basis of the transcript of the interview, and the transcript of the oral evidence.

Were the verdicts unreasonable?

111 The approach taken on behalf of the appellant was, essentially, to attack the reliability of the complainant. In that regard, a number of points were made. They were:

It was submitted that this created a vagueness or uncertainty as to detail that should have operated on the minds of the jury in their assessment of the complainant’s credibility (or her reliability);

But (as defence evidence established) the appellant did not purchase that house until 20 April 2001. In oral evidence, the complainant revised the date, saying that it could have been later, as late as September. It was pointed out on behalf of the appellant that, by September, the complainant was not four, but five, years old;

“… just usually every, around every one or two nights, I think.”

In her oral evidence, in cross-examination, she said:

“Well I think what I meant to say was they had a sleepover every one or two months maybe say probably about one month every month (sic) but every time I slept over it happened.”

She then denied having told police that it happened “every one or two nights”; and then said:

“I must have meant to say months instead of nights.”;

In cross-examination she said that she could not recall any renovations or alterations to the house. The appellant gave evidence that the renovations in 2003 created considerable disruption and mess. (This point is related to point (xiii) below.);

“I guess sort of confused because I didn’t really sort of understand what was happening. I sort of felt like it happened to everyone, like it wasn’t anything huge so I just didn’t really get it.”

But when asked why she had not told anybody, she answered:

“Because I guess I was afraid of what other people might think if I said anything.”

It was submitted that logic dictates that, if she believed conduct of the kind was commonplace, there was no need for her to be afraid of what other people might think, and that these two answers were contradictory;

(vi) in cross-examination the complainant said that she was “just not clear” about the first time the appellant molested her;

(vii) in relation to the 2006 allegations, the complainant claimed that when she went to the toilet L accompanied her but that she did not tell L what had happened and that this was because she was afraid about what other people might think and that she was not comfortable talking about it. It was submitted that this evidence was “fanciful”, given her assertions that the two girls had gone to the toilet after the appellant got into bed with them (and with Sh);

(viii) notwithstanding the complainant’s claims that L was present on this occasion (and other occasions), L’s evidence did not in any way support that of the complainant;

(ix) the evidence concerning the date of release of the DVD of “The Incredibles” established conclusively that watching that DVD could not have coincided with the commission of the events giving rise to the 2004 allegations; but that circumstance was a central feature of the complainant’s evidence of that alleged event. Accordingly, the evidence of the date of release of the DVD undermined the complainant’s account to the point of irretrievability;

(x) the complainant said that she never said anything to the appellant about his conduct, notwithstanding that she also said that he did not say anything to her when the molestation was occurring. There were none of the common indicia of sexual impropriety with children, such as enjoining her to keep the conduct secret, or threatening her;

(xi) the complainant’s evidence concerning the presence or otherwise of L during the commission of the 2004 offences was conflicting. In her interview the complainant said that L and Sh were both present. Later in the interview she said that she thought L had gone home with the family and did not stay that night. In oral evidence (in chief) she reverted to saying that she thought L was present because she recalled her being present while they watched the movie (“Charlie and the Chocolate Factory”);

(xii) Mr Jacob’s evidence established an alibi for the appellant between 9.00pm and 11.00pm on the evening of 23 December 2006, and made it highly unlikely that the complainant had been present at his house at any other time on that evening. The complainant had committed herself to the 23 December date, and Mr Jacob’s evidence, like the evidence of the DVD release date, undermined the complainant’s account of this event, also to the point of irretrievability;

112 These were, of course, all legitimate points to put to the jury. And they were, very effectively, put to the jury. It was within the jury’s province and function to evaluate them, individually and in conjunction with one another, in order to determine whether they cast doubt on the evidence given by the complainant. Plainly, after due deliberation – in excess of three hours, following a trial the evidence in which occupied only 407 pages of transcript (plus the transcript of the two interviews) – the jury was satisfied that, notwithstanding the arguments of senior counsel, the essential evidence of the complainant was sufficient to warrant conviction. The question for this Court is whether it was open to the jury to reach that conclusion.

113 These were essentially jury points. I do not propose, therefore, to comment on each point made. It is appropriate, however, to make some observations that might help to shed some light on the approach that may have been taken by the jury. In doing so, I will retain the point numbering system above.

“… and night time he would do the same as always. And I would probably do the same, like he’d start touching me around the vagina and doing those things and I would just make excuses, Oh, I need to go to the bathroom, things like that … And my sister was there on that night, [L]. And [L], I, every, every time she made an excuse, Oh, like when I said, Oh, I need to go to the bathroom, she, she was, like she wanted to come with me, so she said, I need to go to the bathroom too. And when I went everything was fine. And then when my sister went, he would start following her, as well. And he would stand outside the bathroom.”

114 These answers, alone, would be unsatisfactory to prove a specific incident on a specific occasion. But, later, the complainant said:

He touched me in the vagina again. Yeah. And I woke [Sh] up and I said [Sh], do you wanna do something, do you want to play something, cause I didn’t wanna, like I didn’t wanna stay there

So we played a clap game

And he came back again and then he started touching me around the breast area, the same

115 There is in these last answers no vagueness or uncertainty, or running together of a pattern of behaviour. Those answers give a clear and explicit account of a specific incident.

116 In relation to the 2006 allegations, the complainant said:

he got into the bed and I was like, he got behind me and then he just, like touched me down here

117 These answers, in my opinion, were sufficient to enable the jury to conclude (if they accepted the complainant’s evidence) that the specific incidents the subject of the charges had occurred.

118 (ii) The first point made in relation to the date of the initial event concerned the date of purchase of the appellant’s home. But the complainant herself took much of the sting out of that attack when, in cross-examination, she said, in effect, that she had reconstructed her evidence as to timing, and had reached a different conclusion. Somewhat disarmingly (for the cross-examiner) she agreed (twice) that the realisation that the appellant had not owned the house at the date she originally stipulated may have been part of the reason for her revision.

119 (iii) I see little force in the criticism of the complainant’s evidence about the frequency of the offences. Read as a whole, her interview does not support or suggest the frequency attributed to her in the one answer extracted. Her explanation given in cross-examination may well have been sufficient for the jury.

120 (iv) Nor do I see any great moment in the complainant having been unaware of renovations to the appellant’s home. In 2003, when renovations took place, the complainant was seven years old. She undoubtedly had weightier matters on her mind than renovations that so obsess adults.

121 (v) The asserted discrepancy in the complainant’s answers about her immediate response (or non-response) to the appellant’s conduct are of similarly little moment. The answers are entirely consistent with what is recognised as the confusion that afflict child victims of sex offences.

122 (vi) The complainant said that she believed the incident the subject of the 2004 allegations occurred in the context of her having watched “The Incredibles”. However, she was far from definitive about this. If, as she said, the conduct of the appellant the subject of the charges was representative, or a sample of his conduct over a period, it is hardly surprising that she might have confused the surrounding circumstances of one occasion with the surrounding circumstances of another. What was important was, not her description of the surrounding circumstances, but her description of the event. The jury was plainly prepared to accept her account.

123 As I have mentioned, it is not necessary to dissect every argument put on behalf of the appellant. All were put to the jury. Obviously, all were rejected.

124 I am satisfied, on the evidence, that it was open to the jury to reach the verdicts it did. To the extent that it is relevant, I would also be satisfied beyond reasonable doubt, on the evidence, that the appellant committed each of the offences charged. I would dismiss the appeal against conviction.

SENTENCE

General observations

125 Sentencing of the appellant was governed by Pts 3 and 4 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”).

126 Section 21A (in Pt 3) spells out, in detail, the factors that are required to be taken into account in the determination of sentence. Sub-section (2) lists aggravating factors; sub-s (3) lists mitigating factors. Sub-section (1) makes clear that the lists are not exclusive of other matters required or permitted to be taken into account under any Act or rule of law.

127 Section 28 authorises a court, if it considers it appropriate to do so, to “receive and consider” a victim impact statement at any time after conviction but before sentencing.

128 By s 44, a sentencing court is required first to set a non-parole period (sub-s (1)); and then to set a balance of term, which must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for a longer period, in which case it must make a record of a decision for doing so; (sub-s (2)); failure to comply with sub-s (2) does not invalidate the sentence (sub-s (3)).

129 Division 1A of Pt 4 contains special provisions concerning standard non-parole periods. It applies, in this case, to Counts 1-3, and 5. A Table appended to Div 1A, prescribes, in respect of certain specified offences, the standard non-parole period applicable to offences of that kind. Relevantly, standard non-parole periods are prescribed in respect of offences against s 66A, s 61M(2), and s 61M(1).

130 By s 54A(2), the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of this kind. By s 54B(2), the court is required to set the standard non-parole period unless it determines that there are reasons for doing otherwise, that is, setting a non-parole period that is either longer or shorter than the standard non-parole period.

131 By sub-s (3) the reasons for which a court may take that course are only those set out in s 21A. By sub-s(4), the court is obliged to make a record of its reasons for increasing or reducing the standard non-parole period and is obliged to identify in the record each factor taken into account in making that determination; by sub-s(5), failure to comply with s 54B does not invalidate the sentence.

132 It is a corollary of s 54A(2) that, where an offence is judged to be of a gravity above or below the mid-range of offences of its kind, the standard non-parole period does not apply. However, for reasons that will appear below, that circumstance does not render the standard non-parole period irrelevant.

133 In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, this Court analysed Division 1A in considerable depth. Inter alia, it held that, in sentencing for offences to which Div 1A applies, it is necessary, firstly, to determine what is a notional offence in the mid-range of objective seriousness, and, secondly, to evaluate the objective seriousness of the offence in question relative to that notional offence. The Court pointed out that, while prior to the introduction of Div 1A, a routine part of the sentencing exercise was the evaluation of objective seriousness of the offence under consideration, it had not previously been necessary to approach that exercise with the same degree of analysis as is required by Div 1A; it was not necessary clearly to separate circumstances or features that were relevant to the objective gravity of the offence as distinct from the personal circumstances or features of the offender; and judges had gone about the task in a largely intuitive fashion.

134 Post Pt 4 Div 1A, however, it is necessary for sentencing judges to take a more clinical approach. It is necessary, in every case, to evaluate the objective seriousness of the offence in question alongside and against the yardstick of a notional offence of its kind that falls into the mid-range of objective seriousness (Way [76]). Accordingly, in Way, analysis of the meaning of “objective seriousness” was undertaken. Factors relevant to the assessment are:

the actus reus

the consequences of the conduct

factors that might properly be said to have impinged upon the mens rea of the offender

the mental state of the offender at the time of the commission of the offence (eg intention as distinct from recklessness)

mental illness or intellectual disability where causally related to the commission of the offence.

135 The Court drew a distinction between circumstances of the offence (of which those listed above are examples, or perhaps even a catalogue), which go to the evaluation of objective seriousness, and circumstances of the offender (eg youth, prior sexual abuse) that might explain or influence the conduct or otherwise impinge upon moral culpability, but are not relevant to that evaluation.

136 The sentencing exercise under Pt 4 Div 1A involves sequential steps:

(i) the construction of a notional offence in the mid-range of objective seriousness;

(ii) by reference to those circumstances of the offence under consideration that denote objective seriousness (as distinct from circumstances personal to the offender), evaluation of the relative objective seriousness of that offence;

(iii) (a) where the offence is judged to be of mid-range seriousness, determination whether (having regard only to the s 21A catalogues) there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period;

137 It is in respect of step (iii) that the s 21A factors, as mitigating or aggravating features (as distinct from as indicators of objective gravity), are relevant. Although some of them overlap with factors relevant to the evaluation of objective seriousness (step (ii)) the relevant factors in respect of the two steps are not co-extensive.

Sentencing the appellant

138 The maximum penalties applicable to the offences, the standard non-parole periods (where relevant) and the sentences imposed on the appellant are set out in the Table below:

Count	Statutory Penalty		Sentence Imposed
Maximum Penalty	Standard Non-Parole Period	Non-Parole Period	Balance of Term	Total
1. Sexual Intercourse with child under 10	25 years	15 years	4 years	4 years	8 years
2, 3 Aggravated indecent assault on child under 10	10 years	5 years	2 years	2 years	4 years
4. Aggravated sexual intercourse with child under 14 and over 10 and under authority	20 years	-	4 years	4 years	8 years
5. Aggravated indecent assault on child under 16	7 years	5 years	2 years	2 years	4 years

139 The sentences imposed in respect of Counts 1, 2 and 3 were fixed to commence on 6 February 2009, and be served concurrently; the sentences imposed in respect of Counts 4 and 5 were fixed to commence on 21 November 2009, and be served concurrently with one another and partially cumulative (by a little over 9 months) on those imposed in respect of Counts 1, 2 and 3.

140 The effective overall sentence was of imprisonment for 8 years, 9 months and 15 days, commencing on 6 February 2009, with a non-parole period of 4 years, 9 months and 15 days, expiring on 20 November 2013. The total term was to expire on 20 November 2017.

141 Having stated and imposed the sentences, Finnane DCJ suspended their execution and granted the appellant bail, conditional, inter alia, upon his lodging an appeal within 14 days, together with an application for expedition of the hearing of the appeal. In a separate judgment concerning bail, his Honour made it clear that he took this unusual course because he held a strong view that the jury, acting reasonably, ought not to have been satisfied beyond reasonable doubt of the appellant’s guilt, and that an appeal against conviction had strong prospects of success.

142 The Director of Public Prosecutions successfully sought review in the Court of Appeal of the grant of bail: DPP v AZ [2009] NSWCA 51. The Court revoked bail and the appellant was taken into custody on 13 March 2009.

143 The Crown now appeals against the asserted leniency of the sentences. The appellant seeks leave to appeal against their asserted severity.

The appellant’s personal circumstances

144 By the time the appellant stood to be sentenced, a good deal of his personal history and circumstances were known from evidence given in the trial. He did not give or call any further oral evidence for the purposes of sentencing. A pre-sentence report was before the court but this added little to what was already known. A considerable body of documentary material attesting to his good character was provided. It is possible to recount the relevant circumstances briefly.

145 The appellant was born in India in May 1970, apparently into comfortable circumstances. When he was aged 13 his father died of a heart attack, with, apparently, significant impact upon the appellant. His mother and two siblings all live in India. His mother suffers from cancer. He has had little contact with his siblings.

146 He was 31 years of age at the commencement of his abusive conduct; 36 at last instance; 38 at sentencing.

147 He has no prior convictions.

148 The appellant and his wife married, contrary to family wishes (because they adhered to different religions) in 1995. He and his wife and daughter migrated to Australia in 2000.

149 While in India he completed a degree in Hotel Management, and, at the time of sentencing, was employed as a Procurement Officer.

150 His children were born in 2000 and 2006, and were, at sentencing, aged 8 and 2.

* * *

151 Also before the sentencing judge was a victim impact statement of the complainant. She spoke of the impact the offences had had on her life, and her self-esteem. Most particularly, she spoke of the loss of her relationship with her cousin Sh, with whom she had been close, and of rejection by various members of the extended family.

The Remarks on Sentence

152 The judge recounted the facts of the offences as alleged by the Crown. Although he was less explicit in stating his views about the conviction than he was a little later in his judgment granting bail, it is perfectly plain from the Remarks that his Honour did not accept the validity of the convictions. He referred, for example, to circumstances that had been put to the jury as factors that (it was argued) ought to have caused the jury to doubt the veracity of the complainant. One example concerns the complainant’s evidence that the appellant never spoke to her while committing the offences, and never enjoined her not to tell anybody about what he was doing. His Honour regarded this as a marked departure from the stereotype of child sexual abuse offending commonly seen in the District Court (and in this Court) and, it seems, as a significant indicator that the complainant was unreliable as a witness. His Honour also referred to defence evidence concerning the appellant’s activities on 23 December; and to the absence of any corroborative evidence from L (or anybody else). He also remarked specifically on the fact that the complainant gave evidence of events said to have occurred when she was four years old, and doubted “how accurate such evidence could possibly be”. All this was plainly a reflection on the complainant’s veracity of which the judge took a different view from the jury.

153 His Honour correctly stated the applicable maximum penalties, and the prescribed standard non-parole periods.

154 His Honour recognised that he was required to assess the objective seriousness of the offences. It is appropriate to quote from the Remarks at some length. His Honour said:

“All of the offences, except for the one in count 4, have standard non-parole periods which are applicable to offences which the judge determines are middle range offences in circumstances where the offender has been convicted after trial. Clearly he was someone convicted after trial. He is a man of previous good character and he did not use any force or violence in committing these offences. He also did not issue any threats, nor did he suggest to the complainant she should keep secret what he was doing.

The offences themselves are representative of many, or what is said to be many, similar offences and I am required to take into account that these are representative offences in effect, when deciding whether the offences carrying a standard non-parole period and are middle-range offences. I have formed the opinion that each of them is less than a middle range offence .

155 The observations in the extracted paragraphs all appear under the heading “Characterisation of the offences”. Read as a whole, they indicate that, in assessing the objective gravity of the offences, his Honour took into account:

the appellant’s previous good character

that no force or violence accompanied the offences

that no threats were made to the complainant

that there was no direction or importuning to the complainant not to reveal his conduct

that the offences to which the appellant was sentenced were representative of many others

that the appellant abused a position of trust

that the abuse itself did not involve a serious degree of penetration

that the indecent assault offences were not assaults of the most serious type

156 His Honour then moved to consider the previous good character of the appellant and then, under a new subheading, asked himself:

“Is the standard non-parole period applicable?”

157 His Honour recognised, correctly, that, having regard to his findings that each offence was less than the mid-range of objective seriousness, he was not obliged to impose the standard non-parole period. He also recognised, again correctly, that, notwithstanding that the standard non-parole period was not strictly applicable, it nevertheless stood as:

Way

158 He said:

“The Parliament however requires that I impose sentences in accordance with what they have laid down, but to impose a sentence that would be a very severe sentence would be out of all proportion. The offences cannot be compared to offences against children involving penile vaginal rape, cunnilingus, fellatio or anal sex. They did not involve brutality and no physical injuries were caused. The most serious features of offences such as this are that they were committed by an uncle and were often repeated and there is certainly a great deal of material available now by people interested in the study of criminology, to show just how damaging offences of this type can be, although no physical injury is in fact caused to the victim. That is because the damage often results in the victim feeling worthless and often victims find it difficult to form fulfilling relationships with people from the opposite sex.”

159 Twice during the course of his Remarks, his Honour referred critically to the ratio of the prescribed standard non-parole periods to the maximum penalties. He said that, while he was required to follow the law, he did not have to “agree that it was just”; and that he found the proportions between the standard non-parole periods and the maximum penalties “difficult to understand”.

160 He took into account that the appellant did not use any force or violence in committing the offences, and did not issue any threats, nor suggest that the complainant should keep his conduct secret.

161 He noted that, on the Crown case, the offences involved the abuse of a position of trust (indeed, that was specifically an element of the offence that constituted Count 4) but against that, he said, the abuse did not involve a serious degree of penetration nor assaults of the most serious type.

162 Although he referred in general terms to research demonstrating the damaging effects on children of sexual abuse, he made no reference to the complainant’s victim impact statement. I will refer to other aspects of the Remarks when dealing with the individual grounds of appeal.

* * *

The challenges to the sentence

163 It is convenient to begin with the application for leave to appeal against severity.

The severity appeal

164 On behalf of the appellant it was submitted that the sentences are too severe; and that his Honour:

“… had regard to matters that improperly aggravated the criminality involved [leading to] sentences which are too severe individually and collectively.”

165 The only specific “matter of aggravation” to which reference was made concerned the fact that the charged incidents were “representative” of a pattern of conduct, dating back to 2001. It was not submitted on behalf of the appellant that the representative nature of the offence was irrelevant to the assessment of objective seriousness; rather, that it was not open to his Honour to have been satisfied beyond reasonable doubt that the conduct began in 2001, or at any time before early 2004. This was a reference to the dispute in the evidence about the time when the complainant first stayed overnight at the appellant’s house.

166 In support of this contention, Senior Counsel referred again to the complainant’s evidence that she was unaware of the (2003) renovations to the appellant’s home. This, it was said, supported a contention that she did not begin staying overnight at the appellant’s house until after the renovations had been completed.

167 Reference was also made to the complainant’s evidence revising the timing of the commencement of the offending behaviour.

168 It was submitted that:

“If a three year period is then to be taken off the period when other offences, of which the counts on the indictment are said to be representative, that must reduce the criminality of the behaviour for which [the appellant] was sentenced.”

169 Finally, it was submitted that:

“… it is implicit in reading his Honour’s remarks on sentence that he was not satisfied to the requisite standard that the offences for which [the appellant] was sentenced were truly representative of a much larger number of similar offences.”

170 In my opinion this aspect of the argument advanced on behalf of the appellant was based on a false factual premise. Certainly, his Honour was not satisfied to the requisite standard that the offending commenced in 2001. But neither did he sentence on that basis. He made no reference, in that part of the Remarks that dealt with the representative nature of the offences, to a starting date (of 2001 or any other time). The complainant’s evidence had been that abuse occurred on each occasion (of which, on her account, there were many) that she stayed overnight. That explains the approach to the representative nature of the offence the subject of the charges. It is quite clear to me that his Honour did not accept the complainant’s evidence about what had happened in 2001 (see, for example, his explicitly stated scepticism about the complainant’s capacity to give “accurate” evidence about what had happened to her at the age of four), and the jury’s verdict did not oblige him to do so, or to act on that basis.

171 Moreover, his Honour expressly said that he took the fact that the offences were representative into account only on the question of where they fell on the scale of objective gravity. Notwithstanding that he considered that fact as relevant to the assessment of objective gravity, he nevertheless considered that each offence was of gravity less than mid-range.

172 No other specific error is attributed to his Honour, and no other argument was advanced in respect of the contention that, absent specific error, the sentences imposed were manifestly excessive.

173 In my opinion they were anything but. That can be dealt with in the context of the Crown appeal asserting manifest inadequacy.

The Crown appeal

174 The Crown appeal as filed asserted one ground only, that the sentence (sic) is manifestly inadequate.

175 Following the decision of the High Court in Carroll v The Queen [2009] HCA 13, the Crown notified six specific grounds of appeal. They were:

“(1) His Honour’s finding that the objective seriousness of the offences was less than mid-range was not open on the evidence in respect of counts 1 and 4 …;

(2) His Honour failed to give proper consideration to the application of the standard non-parole period in respect of count 1 …’

(3) His Honour erred in imposing a sentence in respect of count 4 that failed to reflect the objective seriousness of a separate and subsequent offence on the same victim and by insufficiently accumulating the sentence imposed on count 4 upon that imposed on count 1 …;

(4) His Honour failed to give proper consideration to general and specific deterrence …;

(5) His Honour placed undue weight on the subjective features of the respondent’s case, in particular his prior good character …;

Sentencing Procedure

Act

176 I will deal with each of the separate grounds in turn:

Grounds 1 and 2: objective seriousness of the offences (Counts 1 and 4)

177 (There is no challenge to the finding that the indecent assault offences, constituted by breast fondling, were of less than mid-range gravity.) As I have indicated, the only finding made in respect of objective gravity covered all offences. His Honour did not make any such determination in respect of individual offences. All his Honour said was:

“I have formed the opinion that each of them is less than a middle range offence.”

178 The reasons which followed included:

(i) “the abuse itself did not involve a serious degree of penetration”;

179 In a passage which appears immediately prior to the finding that the offences were less than mid-range, his Honour referred to the appellant’s prior good character, the absence of force or violence in committing the offences, and the absence of any threat, or admonition to silence on the part of the complainant. His Honour did not make any specific findings of fact. He merely recounted, in summary form, the substance of the Crown case in relation to each offence. This was interspersed with his comments upon the adequacy of the evidence to support the allegations, and, in some instances, defence evidence in contradiction of the Crown case.

180 Thus, for example, in stating the facts of the 2004 offences, his Honour said:

“The first three counts on the indictment concern events when she was eight. Each concerned a separate event, and she said in relation to each one she stayed at her uncle’s home sleeping with [Sh] in a large double bed. Sometimes [L] would be there with her. Her claim was that the offender would enter the room when the other two girls were asleep, would get into bed and would place his fingers in her vagina and would move them around and would touch her on the breasts. It was her evidence that this happened frequently and in fact on every occasion on which she slept over. She also said that she frequently stayed there. She gave evidence that [L] on occasions was awake when her uncle was in the room and that on occasions [L] would get out of the bed and go to the toilet, as she did. These claims were not supported by [L].”

181 His account of the 2006 offences was as follows:

“[The complainant] said that when she was 10 years old and between 1 December and 25 December, in fact very close to Christmas, the same thing happened again when she was staying at his home. He placed his fingers in her vagina and moved them around and touched her on the breasts. She put these events as occurring somewhere between 23 and 25 December.”

182 The assessment of objective gravity is an important element in the sentencing process. It ought not to be treated in a cursory fashion.

183 In my opinion, it was not an adequate discharge of the requirements of s 54A and s 54B to make a global finding in relation to all offences. The task required, as explained in Way, an evaluation of the gravity of each offence against a notional offence in the mid-range of objective seriousness for offences of the kind.

184 Nor was it relevant, on that assessment, to take into account the appellant’s prior good character.

185 Contrary to the submissions of the Crown, the absence of force or violence, threats or importuning the complainant to silence are not, in my opinion, irrelevant to the assessment of objective gravity. But they are relevant in a limited way, and caution needs to be exercised to ensure that they are not taken into account in an impermissible way. They are principally relevant to the determination of what constitutes a notional offence in the mid-range of objective gravity. It is true that offences against s 66A are frequently accompanied by one or more of those circumstances – threats, violence, force or importuning the victim to silence. If they are absent, that may well and legitimately signal that the offence under consideration falls short of that degree of objective gravity. Accordingly, I would reject the Crown’s submission that these considerations were irrelevant to that evaluation.

186 Counts 1 and 4, the two counts alleging sexual intercourse, were both constituted by digital penetration. Count 1 was brought under s 66A, which proscribes sexual intercourse with a child under 10 years. The complainant was eight years. Count 4 was brought under s 66C, which proscribes sexual intercourse with a child between 10 and 14 years. The complainant was 10 years. The age of the child – the degree to which the victim is under the prescribed age – is one factor relevant to objective gravity generally speaking, the younger the child, the more serious the offence.

187 “Sexual intercourse” is widely defined (in s 61H), relevantly, to mean sexual penetration to any extent of female genitalia by any part of the body of another person, or any object manipulated by another person; and includes fellatio and cunnilingus.

188 Courts dealing with offences against s 66A are familiar with the very wide, and sometimes brutal, means by which the offence may be committed. It is, as the sentencing judge recognised, often accompanied by threats, force, violence, entreaties or admonitions to secrecy. These factors, where present, are relevant to the assessment of objective gravity (as escalating that gravity); where absent, they are equally relevant to the assessment of objective gravity (as diminishing that gravity).

189 The determination of objective gravity is a different exercise from the exercise of selecting sentence, which takes place after all relevant circumstances, both objective and subjective, have been weighed in the balance.

190 Notwithstanding the failure of his Honour to conduct the analysis proposed in Way, I am of the view that it was open to him to conclude that each of the Counts 1 and 4 offences was of less than the mid-range of objective gravity. His Honour was therefore correct to conclude that he was not obliged to impose the standard non-parole period. That did not, however, obviate the need to regard the standard non-parole period as a reference point or guide.

191 I agree with his Honour’s conclusion that each of these offences was, relative to the wide variety of offences against s 66A (and s 66C) significantly below the mid-range. I would therefore reject Ground 1 of the Crown appeal.

192 However, even in the light of that conclusion, I am also satisfied that his Honour, in respect of Count 1, did fail to have regard to the standard non-parole period as a reference point or guide. The maximum penalty provided is imprisonment for 25 years; the standard non-parole period is imprisonment for 15 years. The sentence imposed upon the appellant included a non-parole period of 4 years. That is a fraction of the standard non-parole period.

193 Moreover, had he had regard to the standard non-parole period as required, he could not reasonably have imposed the sentence he did. It is so far below the standard non-parole period as to denote error.

194 The absence of some indicia of objective gravity does not, in my opinion, amount to a mitigating circumstance. As Grove J put it in Saddler v R [2009] NSWCCA 83:

“It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.”

195 There were, in fact, some relevant aggravating factors. Section 21A(2)(g) specifies the occasioning of substantial injury or emotional harm as an aggravating factor. The complainant’s victim impact statement contains material which could have led to a finding of substantial injury and emotional harm. I do not say that it demanded such a finding, but it was not considered by his Honour. Section 21A(2)(k) makes abuse of position of trust or authority in relation to the victim an aggravating factor. That was clearly here present, (although it could not, because it was an element of the offence the subject of Count 4, be taken into account as an aggravating factor in respect of that offence) as was the circumstance specified in s 21A(2)(l): that the victim was vulnerable because she was very young (particularly, or more so, at the time of the 2004 offences, but also at the time of the 2006 offences). I recognise, however, that, in relation to each offence, the age of the victim was an element of the offence, and factored into both the maximum sentence prescribed and the standard non-parole period. Section 21A(2)(m) makes an aggravating factor where the offence is part of a series of criminal acts.

196 Apart from the mitigating factors specified by s 21A(3)(f), good character, there were few of those factors.

197 These circumstances did not justify the sentence imposed in relation to Count 1. That sentence can only be explained by inadequate attention having been given to the standard non-parole period. I would uphold Ground 2.

Ground 3: objective seriousness and insufficient accumulation (Counts 4 and 5)

198 There are two parts to Ground 3. It was complained, firstly, that the sentence failed adequately to reflect the objective gravity of the offence that constituted Count 4 (having regard to the fact that it amounted to a repetition of the earlier offence); and that it called for a greater degree of accumulation than was imposed.

199 In considering this ground of appeal it is to be recalled that the two episodes of criminality occurred more than two years apart. The offences the subject of Counts 1, 2 and 3 were all part of one episode in 2004; the offences the subject of Counts 4 and 5 were both part of the second episode. It was, therefore, in my opinion, open to his Honour to impose concurrent sentences in relation to all offences constituting each episode, and to accumulate those imposed in relation to the second episode on those imposed in relation to the first. However, in doing so, it would be necessary to take into account, pursuant to s 21A(2)(m), that each offence was committed in conjunction with the others (episode one) or the other (episode two). In my opinion it is clear that his Honour did not take that circumstance into account. It would equally have been open to him to have imposed lesser sentences, in each grouping, that were themselves partially accumulated. Whichever approach was taken, it was necessary that the total term of imprisonment in relation to each episode, and to those episodes in conjunction, reflect the totality of the criminality. In my opinion, it did not do so. The second part of this ground has been made out.

200 It remains to consider whether the first part of the ground has been established. This exposes clearly the effect of the introduction of Pt 4 Div 1A. For sentencing purposes, what is markedly different about the Count 1 and Count 4 offences is the relevant statutory sentencing regime. No standard non-parole period is specified in relation to Count 4. Whether the sentence failed to reflect the objective gravity of the offence does not fall to be determined against the yardstick of a standard non-parole period.

201 Further, the offence against s 66C carries a maximum penalty of imprisonment for 20 years, against the 25 years that the Count 1 offence attracted.

202 In those circumstances, I have come to the view that, even though that offence was a second offence of its kind, a sentence of 8 years with a non-parole period of 4 years was not manifestly inadequate.

Ground 4: general and specific deterrence

203 His Honour made no reference in the Remarks to general or specific deterrence. Deterrence is, as the Crown submitted, a highly relevant factor in sentencing in respect of offences committed against a child. While it is not every case in which no reference is made to a sentencing consideration that it can be concluded that that consideration was overlooked, I am satisfied on this occasion that is what happened. In part, it seems to me his Honour was deflected from the sentencing task by his view of the merits of the conviction.

204 I am satisfied that ground 4 has been made out.

Ground 5: subjective features

205 The Crown argued that undue emphasis was given to the evidence of the appellant’s personal circumstances. True it is that his Honour made reference to his previous good character and other matters. However, as I have said, there was relatively limited material available, and I do not read the Remarks on Sentence as giving excessive weight to those circumstances. To the extent that there was such evidence, it was favourable.

206 I would reject this ground of the Crown appeal.

Ground 6: special circumstances

207 It is apparent from the structure of the sentences that his Honour did not apply the ratio between the non-parole period and the head sentence specified in s 44(2) of the Sentencing Procedure Act. Section 44(2) requires reasons to be given for such a departure. No reasons were given.

208 However, there was material which would have permitted such a finding to be made. The appellant has never found himself in conflict with the criminal law before, and certainly never been sentenced to a term of imprisonment. He will undoubtedly require a period of supervision on his release. I would, accordingly, not disturb the finding which is implicit. I would reject Ground 6.

* * *

209 Having regard to the view I have reached in respect of Grounds 2, 3 and 4, it is clear that the Crown appeal must be allowed and the appellant re-sentenced. That is confined to the Count 1 sentence. For reasons that will be apparent, I am of the view that it is not necessary to vary the terms of the sentences imposed in respect of Counts 2, 3, 4 and 5. It will, however, be necessary to adjust the commencement dates to take account of the date on which the appellant was taken into custody.

210 Before proposing sentences, I make the following observation. The sentencing judge was explicit in his view that the convictions were unsafe. In doing so, he gave false hope to the appellant. That does not make the re-sentencing task for this Court any easier. No doubt the appellant has been waiting for delivery of the judgment in the confident expectation that he will be released. Not only is that hope to be dashed, but, on re-sentencing, his sentence must be extended, and significantly so.

211 In my opinion, first instance judges ought to be circumspect in expressing views of the kind that were here expressed. They give false hope to offenders and complicate the task of this Court. Indeed, I have considered whether the circumstance is one that ought to be taken into account in the determination of sentence. I have concluded that it cannot. The appellant is to be re-sentenced in accordance with well-established principles concerning sentencing following a successful Crown appeal. The sentence(s) to be imposed must be at the lower end of the range properly available at first instance.

212 Here, in relation to Count 1, that is well beyond the sentence imposed at first instance. And the overall effective sentence must also be increased. The sentence I propose is based upon two fundamental principles (which, as it happens, point in opposite directions). The first is that sentencing following a successful Crown appeal must take into account the principle of double jeopardy, and be at the bottom of the permissible range; the second is that even for an offence below the mid-range of objective gravity, due regard must be paid to, and the sentence must reflect, adherence to the dictates of the legislature in prescribing the standard non-parole period. Were it not for that latter factor, the sentence I would propose would be significantly lower. While I share the sentencing judge’s distaste for sentencing at the level now required by Pt 4, Div 1A, it is the duty of the Court to sentence in accordance with the statute. That requires a sentence that pays due regard to the standard non-parole period, while bearing in mind that the offence was of less than mid-range objective gravity, and the appellant’s prior good character. Although I have expressed the view that the Crown has made good its submission concerning accumulation, I am further of the view that, in discharging its sentencing duty, this Court must also have due regard to the principles of totality. With that in mind, I would not interfere with the commencement date of that sentence. In fact, the sentence required by Pt 4 Div 1A is such that the other sentences will be fully subsumed. No further accumulation is called for.

213 I propose the following orders:

(i) Appeal against conviction dismissed;

(ii) Leave to appeal against sentence granted, appeal against severity of sentence dismissed;

(iii) Crown appeal allowed in respect of the sentence imposed in respect of Count 1;

(iv) That sentence quashed, in lieu thereof, the appellant be re-sentenced to imprisonment with a non-parole period of 8 years, commencing on 13 March 2009 and expiring on 12 March 2017, and a balance of term of 4 years, expiring on 12 March 2021;

(v) The sentence imposed in respect of Counts 2 and 3 be varied so as to commence on 13 March 2009; the non-parole period to expire on 12 March 2011; the balance of term will expire on 12 March 2013;

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Citations

SKA v R [2009] NSWCCA 186

Most Recent Citation

Cases Citing This Decision

32

SKA v The Queen [2011] HCA 13

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218

WXY v Tasmania [2012] TASCCA 13

Cases Cited

8

Statutory Material Cited

4

M v the Queen [1994] HCA 63

R v NZ [2005] NSWCCA 278

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CITATION:	SKA v R; R v SKA [2009] NSWCCA 186
HEARING DATE(S):	13 May 2009
JUDGMENT DATE:	14 July 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Simpson J at 3
DECISION:	(i) Appeal against conviction dismissed; (ii) leave to appeal against sentence granted, appeal against severity of sentence dismissed; (iii) Crown appeal allowed in respect of the sentence imposed in respect of Count 1; (iv) that sentence quashed, in lieu thereof, the appellant be re-sentenced to imprisonment with a non-parole period of 8 years, commencing on 13 March 2009 and expiring on 12 March 2017, and a balance of term of 4 years, expiring on 12 March 2021; (v) the sentence imposed in respect of Counts 2 and 3 be varied so as to commence on 13 March 2009; the non-parole period to expire on 12 March 2011; the balance of term will expire on 12 March 2013; (vi) the sentences imposed in respect of Counts 4 and 5 be varied so as to commence on 28 December 2009; the non-parole period in respect of Count 4 to expire on 27 December 2013; the balance of term to expire on 27 December 2017; the non-parole period in respect of Count 5 to expire on 27 December 2011; the balance of term to expire on 27 December 2013.
CATCHWORDS:	CRIMINAL LAW – particular offences – offences against the person – sexual offences – CRIMINAL LAW – appeal against conviction, whether verdict unreasonable or insupportable having regard to the evidence – CRIMINAL LAW – appeal – procedure – evidence given in trial by video pursuant to Evidence (Children) Act 1997 (now Criminal Procedure Act Pt 6) – whether appeal court should view video – court should proceed on transcript of video-recording – CRIMINAL LAW – sentence – appeal against severity of sentence – Crown appeal against manifest inadequacy of sentence – assessment of objective gravity – s 54A and s 54B of the Crimes (Sentencing Procedure) Act 1999 – requires assessment of objective gravity of each offence individually – application of R v Way [2004] NSWCCA 131 – failure to have regard to standard non-parole period – sentence so far below the standard non-parole period as to denote error – failure to adequately reflect objective gravity of offence – accumulation – general deterrence – appellant re-sentenced in respect of Count 1 – overall effective sentence increased
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986 Evidence (Children) Act 1997
CATEGORY:	Principal judgment
CASES CITED:	Carroll v The Queen [2009] HCA 13 DPP v AZ [2009] NSWCA 51 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
PARTIES:	SKA (Applicant/Respondent) Regina (Respondent/Applicant)
FILE NUMBER(S):	CCA 2008/2740
COUNSEL:	W Dawe QC/M Gallagher (Applicant/Respondent) J Dwyer (Respondent/Applicant)
SOLICITORS:	Crawford & Duncan Lawyers (Applicant/Respondent) S Kavanagh (Solicitor for Public Prosecutions) (Respondent/Applicant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	08/11/0763
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	6 February 2009