TH v The Queen

[2019] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	TH v R [2019] NSWCCA 184
Hearing dates:	17 July 2019
Date of orders:	14 August 2019
Decision date:	14 August 2019
Before:	Leeming JA at [1] Davies J at [2] Hidden AJ at [54]
Decision:	(1) Grant leave to appeal. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of aggravated indecent assault of a child under the age of 16 years – applicant the paternal grandfather of the complainant – complainant stayed over at the applicant’s home and slept in his bed – applicant pulled down the complainant’s pants while pressed against her – sentencing judge found that the applicant had an erection and had ejaculated during the commission of the indecent assault – applicant asserted that he had an incontinence problem and had unwillingly urinated on the complainant – issue relevant to measure of objective seriousness of offending - whether the sentencing judge’s finding of fact was consistent with the jury’s verdict – where the veracity of the applicant’s alleged incontinence was cast into doubt by the evidence – the sentencing judge’s finding was the only rational inference from the facts – finding made beyond reasonable doubt – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) s 61M
Cases Cited:	AB v R [2014] NSWCCA 339 Aoun v R [2011] NSWCCA 284 Cheung v R (2001) 209 CLR 1; [2001] HCA 67 Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 Hordern v R [2019] NSWCCA 138 Peters v R [2013] NSWCCA 324 R v O’Donoghue (1988) 34 A Crim R 397 Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220
Texts Cited:	Nil
Category:	Principal judgment
Parties:	TH (Applicant) Crown (Respondent)
Representation:	Counsel: F Coyne (Applicant) C Gleeson (Respondent)   Solicitors: Lisa De Luca & Company (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/205655
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 20 November 2017 Before: Letherbarrow SC DCJ File Number(s): 2016/205655

Judgment

1. LEEMING JA:   I agree with Davies J. In particular, I agree with his Honour that it is unnecessary for the purposes of resolving this appeal to express a view as to the different approaches to factual challenges made by a sentencing judge in Hordern v R [2019] NSWCCA 138, being an issue which was not the subject of submissions.

2. DAVIES J: The applicant stood trial before a jury on one count of aggravated indecent assault of a child under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). On 28 September 2017 the jury found him guilty of that offence. The maximum penalty for this offence is ten years’ imprisonment. There is a standard non-parole period of eight years.

3. On 20 November 2017 he was sentenced by Judge Letherbarrow SC in the District Court to imprisonment for five years commencing 24 June 2017 and expiring 23 June 2022 with a non-parole period of three years expiring 23 June 2020.

4. The applicant now seeks leave to appeal from the sentence imposed on one ground as follows:

That his Honour erred in finding at sentence that the applicant had an erection and ejaculated during the commission of the offence.

5. The relevance of determining the issue raised by the ground of appeal (hereinafter referred to as “the contested factual issue”) is that it bears upon the measure of objective seriousness of the offending, as the sentencing judge noted and as the parties agree.

The offending

6. The applicant is the paternal grandfather of the complainant. At the time of the offending the complainant was aged eight years.

7. On the night in question, which was probably in January 2016, the complainant and her sisters, then aged seven and nine, spent the night at the home of the applicant and his wife. The applicant and his wife slept in different rooms. The arrangement that night was that the complainant was to sleep in the applicant's bed with him and the two sisters would sleep with their grandmother in her bed.

8. When the complainant got into the applicant's bed he was already in it and she thought he was asleep. She positioned herself in the bed so that her head was opposite his feet, in a head to toe position. A minute or two later the applicant turned his body around so that they were lying side by side in the same direction. The complainant was lying on her right hand side facing away from the applicant who was behind her.

9. The applicant then proceeded to pull down the complainant's lower clothing to just above her knees. The complainant said that she felt the applicant's penis (she described it as his “rude part”) against her bottom and that it was "hurting [her] a little bit". The complainant then described what happened variously as "he done an accident on my back rude part" and "he was doing the wee-wee" on the back of her “rude part". She said that she thought the applicant was wearing shorts and a shirt, but did not think he was “wearing undies” at the time of the offence.

10. The complainant said that the applicant then went into the adjoining bathroom and came back with a cloth in his hand. She said, "and he wiped the wee-wee up and he, and then he um, pulled my pants, and then he cleaned it back up then pulled my pants back up. And then went to the other side of the bed and then went back to sleep."

11. The complainant disclosed the offending to her mother on 9 April 2016 after her mother picked her up from a subsequent sleepover at the grandparents’ house. The applicant was arrested on 7 July 2016. He was aware for some time before his arrest of the allegation made by the complainant because the complainant’s mother had telephoned and spoken with the applicant’s wife on or shortly after 9 April 2016. The complainant’s father also spoke to the applicant about the matter.

12. In a recorded interview made at the applicant’s house at the time of his arrest, the applicant claimed that he suffered from an incontinence problem during the night and that he sometimes woke up wet. He claimed to wear pyjamas always, especially when the granddaughters were sleeping over.

13. In his Remarks on Sentence (ROS), Judge Letherbarrow identified the issue which needed to be determined as follows:

[The complainant’s] evidence gives rise to a factual dispute, as it did before the jury, as to whether the offender had an erection during the incident in question and ejaculated on the victim, as opposed to having a flaccid penis and suffering an episode of urinary incontinence. The jury's verdict is consistent with both interpretations as the victim also said that the offender, during the course of the indecent assault, had earlier pulled down her lower clothing which the jury could have accepted occurred, thereby grounding the indecent assault offence even in the absence of finding that the offender had an erection and ejaculated upon her. Obviously, if the offender did have an erection and ejaculated on the victim, this would increase the objective seriousness of the offending. Accordingly, I would have to be satisfied beyond reasonable doubt as to the occurrence of that version of the events.

14. His Honour went on to say that he was satisfied beyond reasonable doubt that the applicant did have an erection and ejaculated upon the complainant. His Honour set out in detail the reasons for that determination. Those reasons included the following:

•   His Honour found the complainant’s own evidence “quite compelling” and he accepted her evidence;

•   The contents of the applicant’s ERISP were somewhat vague and contained a number of apparent contradictions;

•    Although the applicant claimed that he had an incontinence problem and had seen a doctor at a medical centre in Blacktown about the matter, the Crown called two doctors from the medical centre who gave evidence that cast doubt on the veracity of that claim. The medical centre's computerised records indicated that the first time the applicant attended the centre to report symptoms of urinary incontinence was four days after he was first informed of the complainant's allegation. His Honour found the evidence from the two doctors to be quite powerful;

•   The complainant’s evidence of the applicant doing a “wee-wee” on her bottom area and the fact that the “hurt” she felt did not cease until the applicant moved away from her, indicated that the applicant had an erection at the time that she felt the “wee-wee”;

•   The fact that prior to those events the applicant had pulled down her lower clothing provided strong evidence that the applicant was in the process of sexually assaulting her.

Submissions

15. The applicant noted in his submissions that the Crown opened the case to the jury that “the accused pulled the pants of the complainant down and that he rubbed his penis against her bottom and that there was some kind of liquid that went on her back or on her bottom". In that way, the applicant submitted, whether the applicant had an erection and ejaculated on the complainant were not essential elements to his conviction.

16. The applicant drew attention to the way the Crown closed the case as to what constituted the indecent assault. The applicant also drew attention to what his Honour had said when summing up the case as follows:

In this matter, the acts which the Crown relies upon as constituting the assault are the accused pulling down the complainant’s lower clothing intentionally pressing his penis up against, as she described it, her back bottom, and then what the Crown says was him ejaculating over that area. There is no issue as I understand it, that each one of those acts if they occurred deliberately, are capable of constituting an assault. If you are satisfied that one or more of those acts occurred beyond reasonable doubt, then you'd move onto the second element of the offence.

17. The applicant submitted that it followed from his Honour’s summing up that a conviction did not necessitate a finding that the applicant had an erection or ejaculated.

18. The applicant pointed to the evidence of the complainant where she referred to the applicant having “an accident” and her repeated references to the applicant doing a “wee-wee” on her bottom. The applicant submitted that there was no forensic evidence to determine whether the discharge was urine or ejaculate.

19. The applicant submitted that the sentencing judge was in error in concluding that the applicant had an erection and thereafter ejaculated on her.

20. The Crown submitted that the sentencing judge correctly approached the task of determining the contested factual issue on the basis that the fact, if adverse to the applicant, must be established beyond reasonable doubt. Further, the Crown submitted that the judge’s finding as to the contested fact was consistent with the jury’s verdict. In that regard, the Crown submitted that the jury could find that the indecent assault was the applicant’s erection and ejaculation on the complainant.

21. The Crown submitted that there was sufficient evidence for the sentencing judge to conclude as he did. That evidence was to be found in the recorded interview with the complainant where she referred to the applicant’s “rude part” touching her back and hurting until the rude part was removed from her back.

Determination

22. There is, at the present time, a division of opinion within this Court about the approach that should be taken where there is a challenge to a factual finding by a sentencing judge. The traditional view derives from what was said by Hunt J (as his Honour then was) in R v O’Donoghue (1988) 34 A Crim R 397 at 401. That view has been followed in a large number of cases, many of which are listed in Aoun v R [2011] NSWCCA 284 at [35] by Johnson J, and in Peters v R [2013] NSWCCA 324 at [42] by Latham J. In addition, recent analyses by Simpson J (as her Honour then was) in AB v R [2014] NSWCCA 339 at [44]-[59] and by Button J in Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220 at [26]-[36] provide support for that view.

23. A different view has been taken, particularly by Basten JA and Hamill J, in Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 and more recently in Hordern v R [2019] NSWCCA 138 at [5]-[20] and [82] (Lonergan J not expressing a view as to her agreement or otherwise with that view).

24. The challenge to the contested factual finding in the present case does not squarely raise this issue for the reasons which I shall give. I consider that whichever view is taken the ground is not made out.

25. In Cheung v R (2001) 209 CLR 1; [2001] HCA 67 the High Court said at [14]:

In Isaacs [R v Isaacs (1997) 41 NSWLR 374 at 377-378] the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority):

"1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ...

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ...

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ... "

26. To see whether the finding on the contested factual issue is consistent with the jury’s verdict, it is necessary to consider the addresses made by the Crown and what the trial judge said in his summing-up.

27. In the Crown’s opening address, the Crown prosecutor said that there were two elements to the offence. In relation to the first element, the Crown said that there was an assault:

And what the Crown relies on in relation to this is that the accused pulled the pants of the complainant down and that he rubbed his penis against her bottom and that there was some kind of liquid that went on her back or on her bottom. The Crown says that amounts to an assault at law.

28. In the Crown’s closing address, the Crown prosecutor said:

Now the Crown says an available inference and an inference means it’s you know, things that you can draw from the evidence, is that the accused ejaculated on the complainant. You need to be satisfied of that beyond a reasonable doubt.

…

In her interview [the complainant] says when the penis was touching her bottom, she said it felt weird. That’s something you’d expect an eight year old child to say to acknowledge the conduct is weird. And she says it stopped when he moved his penis away. Is the act indecent? Well, if you accept that there was an assault because of a number of deliberate acts, namely the pressing of the penis against the buttock, then you would accept that its indecent.

29. In the trial judge’s summing up, his Honour made the remarks set out at [16] above. His Honour then moved on to the second element which was that the assault was accompanied by an act of indecency. His Honour said that the assault and the act of indecency could be the same act. He continued:

The Crown relies on the acts in question being committed by the accused as constituting both the assault and the act of indecency. …

[G]iven the way this case has been conducted, if you are satisfied beyond reasonable doubt that the accused deliberately committed any of the alleged acts described in the circumstances mentioned, you would have little difficulty concluding that it amounted to both an assault and an act of indecency.

30. A little later on when discussing the question of inferences, his Honour said:

In this case, the Crown argues that you would infer beyond reasonable doubt that the liquid that the complainant felt on her back was ejaculate. You would do so, the Crown argues, because you would be satisfied beyond reasonable doubt that the accused for the purpose of sexual gratification removed her lower clothing and then pressed his penis up against her.

31. His Honour was, therefore, correct in his ROS (at [13] above) when referring to the contested factual dispute by saying that the jury’s verdict was consistent with both interpretations.

32. At the sentence hearing, his Honour had two possible explanations for what had occurred. The first was that the applicant had an erection and ejaculated on the complainant’s bottom and back. The second explanation was that he accidently urinated on the complainant’s bottom and back from a flaccid penis.

33. The relevant part of the recorded interview with the complainant was as follows:

Q109   Did anything happen between when Pop pulled your pants down and

he weed on your rude part?

A   Um, his front rude part touched my back rude part a little bit.

…

Q114   … And how long do you think his front rude part was touching you there?

A   Only a little bit.

Q115   And what was Pop wearing when that happened?

A   He, I think he was in his shorts and his shirt.

Q116   Yeah. What about when his rude part was touching your bottom?

A   Mmm.

Q117   What was he wearing then?

A   He, I don't think he was wearing undies.

Q118   Can you tell me how it felt when his rude part was touching there?

A   It felt weird.

Q119   Yeah. Can you describe it a bit more for me?

A   Mmm it felt like the rude part was hurting me a little bit.

Q120   [13:43] Yep. So when you say it was hurting you a little bit,

whereabouts exactly on your, on your bottom was it when it was

actually hurting, can you put an X? And what was he doing with his

rude part when it was hurting?

A   Um, he was doing the wee wee.

Q121   Was he?

A   (NO AUDIBLE REPLY)

Q122   Was it on the, where you've said, put the X there, what's the actual

name for that part?

A   A bottom.

Q123   Bottom. Well did he have it on the outside of your bottom or the

inside of your bottom or something else when it hurt?

A   It was in the outside of the bottom.

Q124   In the outside of the bottom.

A   (NO AUDIBLE REPLY)

Q125   Can you tell me a bit more about where that is?

A   The outside bottom is, the outside is um, I can't describe it.

Q126   That's O.K. And you said it hurt. How long did it hurt for?

A   For a little bit then it stopped.

Q127   And what made it stop?

A   When he took his rude part off my back rude part.

Q128   O.K. What was his body doing when he had his rude part on your

back rude part?

A   He was doing the wee wee.

34. The complainant was cross-examined, but at no point was she asked anything about that part of her evidence where she said that it hurt her when he pressed against her. That was, therefore, unchallenged evidence. In any event, the sentencing judge said that he accepted the complainant’s evidence which he found quite compelling.

35. Counsel for the applicant relied on two pieces of evidence to cast doubt on the complainant’s evidence in this regard. The complainant’s mother said that when the complainant told her about what had happened she asked the complainant “Did it hurt?” and the complainant said “No”.

36. Counsel also relied on the complainant’s father’s evidence when she told him about the event. His evidence was:

I asked did Poppy hurt her and she said, no. She said, “He just pulled my pants down.” I said, “What else?” She [sic] said – did he touch your bottom and she said, “He touched it a little bit.” I said, “Did Poppy hurt you?” I think I asked that question a couple of times, Did Poppy hurt you?” She said, no, he just pulled my pants down and touched my bottom.

37. To the extent that the evidence of the complainant’s mother and father differs from that of the complainant, his Honour, who saw all of the witnesses give their evidence, accepted the complainant’s evidence. Moreover, the question asked by the complainant’s father was a different one from the mother’s question. To ask if someone “hurt you” is to ask a question about pain or injury that endures beyond the act in question.

38. His Honour found that the hurt that the complainant felt did not cease until the applicant moved away from her. One explanation for the hurt was that the applicant was pressing an erect penis against her bottom.

39. The only evidence from the applicant was contained in two ERISPs. In the first, which was conducted at the applicant’s premises on 7 July 2016, the following was said:

Q22   Did you ever wet the bed when you were in bed with [the complainant]?

A   I don’t know. Sometimes, um, in my sleep, and, and sometimes I wake up wet.

…

Q25   O.K. What do you wear to bed?

A   Pyjamas.

Q26   [07:00] O.K. You always wear pyjamas? Or ---

A   Yes

Q27   O.K. So the allegation ---

A   Especially when, ah, especially when the girls are here.

40. In his oral submissions, counsel for the applicant said that it was the police and not the applicant who first raised the issue of whether he may have urinated, by that question. That submission overlooks entirely that this interview was more than two months after the applicant himself first made the assertion to a number of doctors in April 2016, and to his wife which she conveyed to their son, the complainant’s father. By the time of this interview, the complainant’s mother had made a statement to the police following her conversation(s) with the grandparents.

41. In the extended ERISP conducted at the police station on the same day, the following was said:

Q145   O.K. And tell me exactly - - -

A   I dunno.

Q146   --- what the medical condition is as far as what, what happens to you?

A   What happens to me?

Q147   Yeah. How does it affect you?

A   Sometimes I'm asleep and I just wake up wet.

Q148   O.K. And you said at the house wet with urine, is that right?

A   Yes, urine.

Q149   [09:59:33] O.K. And how many times would that affect you, do you

think?

A   Not very often. Couple of months, maybe.

Q150   Once, once every couple of months?

A   Once every couple of months maybe.

Q151   Yeah. And so would it be fair to say that if you had pyjamas on ---

A   Yes.

Q152   ---and you woke up wet ---

A   Yes.

Q153   ---where would the wet be?

A   On my pyjamas.

Q154   Yeah. Would it be on the sheets? Would that be much urine or would

it not be that much?

A   No, just a little bit, it's just, it wasn't the sheets wet [sic]. It's just my pyjamas pants so I change, change my pyjama pants, put a new pair ---

Q155   Yeah.

A   ---on.

Q156   And does that only happen when you're asleep or does it happen when you're awake as well?

A   When I'm asleep.

Q157   Has it ever happened when you're awake?

A   Yes.

Q158   And when's that? Is that when you're in bed, or is it during the day?

Tell me about that.

A   Sometimes during the day. I don't, don't know when.

(emphasis added)

42. Dr De Silva from Pacific Medical Centre at Blacktown gave evidence. The applicant had been seeing Dr De Silva for four or five years. When he was asked if he was the applicant’s regular doctor, Dr De Silva said that he saw the applicant most of the time. He said that the applicant first mentioned incontinence to him in August 2017. However, the notes from the medical centre from 2008 onwards showed that the first mention of a complaint of incontinence was made on 13 April 2016. This complaint was made to another treating doctor at the Pacific Medical Centre. The note said “Is concerned re nocturnal urinary incontinence”.

43. Dr Pooviah was the doctor who saw the applicant on 13 April 2016. That was the first time Dr Pooviah had seen the applicant. Dr Pooviah was taken to a note by one of his colleagues at the medical centre on 20 April 2016 who wrote about the applicant, “Wants some treatment for the incontinence. No samples available. Dribble”.

44. The evidence disclosed that the complainant told her mother on 9 April 2016 about what had happened when she slept over on the previous occasion in January 2016 with her grandfather. Her mother then rang the complainant’s grandmother and spoke both to her and to the applicant. Before she managed to speak to them, she had sent text messages to the grandmother who eventually rang her back.

45. The complainant’s father said that he rang to speak with his mother when he found out about the incident, and he said in his statement to the police:

She told me dad had a medical issue which caused him to wet the bed. He dribbles in bed all the time.

46. The sentencing judge noted that the contents of the applicant’s ERISPs were somewhat vague and contained a number of apparent contradictions. He noted also that the computerised records of the Pacific Medical Centre indicated that the first time the applicant attended the Centre reporting symptoms of urinary incontinence was four days after he was first informed of the complainant’s allegations.

47. If the traditional view from O’Donoghue is followed, it cannot be said in the present case that it was not open to the sentencing judge to come to the view he did about the factual issue. There was evidence to support such a finding.

48. Even if the broader approach taken in Clarke and Hordern is adopted, I am not persuaded that error has been demonstrated in any factual finding made by the sentencing judge. In addition to the matters the sentencing judge took into account in coming to his view on the contested factual issue, there is the further point about the nature of the applicant’s incontinence. This emerges both from the evidence in the second ERISP and in what the complainant’s father informed the police that his mother had told him. This was evidence obtained in cross-examination by counsel for the applicant. It was that the applicant “dribbles in bed”. That, of course, is consistent with the note made by the doctor on 20 April 2016.

49. The applicant’s evidence in his ERISP was, at first, that the incontinence only occurs when he was asleep and he wakes up wet. When asked if the urine would be on the sheets he said, “it wasn’t the sheets wet [sic]. It’s just my pyjama pants”. The amount of the urine was “just a little bit”. When he was asked if the incontinence had ever happened when he was awake he said yes, “Sometimes during the day”.

50. No description or complaint by him to the doctors, to his wife or to the police suggested an episode of incontinence in the type of circumstances of his pressing a flaccid penis against the complainant’s bottom. Indeed, if the applicant had become incontinent in so doing, one might have expected him immediately to have removed himself from physical contact with the complainant, rather than urinating all over her as he claims happened. Moreover, if, as he claimed, he was wearing pyjamas, it is not easy to see from his descriptions of his incontinence, how he would have urinated all over the complainant and the bed.

51. If this Court were to draw its own conclusions from the evidence, the only rational inference that could be drawn was that the applicant’s penis was erect and that he ejaculated over her. That inference would follow from the complainant’s evidence about the applicant’s “rude part” hurting her until he moved it away, and from the applicant’s own evidence, including reports to doctors and others, of the nature of his incontinence problem. I would reach such an inference beyond reasonable doubt. The sentencing judge made such a finding beyond reasonable doubt. No error is shown in his doing so.

52. I would reject the ground of appeal.

53. In my opinion the following orders should be made:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

54. HIDDEN AJ:      I agree with Davies J.   

**********

Decision last updated: 14 August 2019