TJC v Regina

[2006] NSWCCA 413

CITATION:	TJC v Regina [2006] NSWCCA 413
HEARING DATE(S):	28 November 2006
JUDGMENT DATE:	19 December 2006
JUDGMENT OF:	Barr J at 1; Adams J at 62; Rothman J at 63
DECISION:	Grant an extension of time within which to bring the appeal and the applications for leave to appeal against the sentences to the dates of filing the appropriate notices in the registry. Uphold the appeal, quash the convictions and sentences on the first and second counts and direct the entry of verdicts of acquittal on those counts. Grant leave to appeal against the remaining sentences. Dismiss the appeal against the sentence on the fourth count. Vary the sentence on the fifth count so that it is taken to have commenced on 6 June 2003 and to have expired on 5 June 2005. Vary the non-parole period on the fifth count so that it is taken to have commenced on 6 June 2003 and to have expired on 5 December 2004. Vary the sentence on the carnal knowledge conviction so that it is taken to have commenced on 6 December 2004 and will expire on 5 March 2010. Quash the non-parole period and substitute a non-parole period of three years and six months, which is to be taken as having commenced on 6 December 2004 and which will expire on 5 June 2008. Declare that the first day upon which the appellant will be eligible for consideration for release to parole will be 5 June 2008.
PARTIES:	Regina, TJC
FILE NUMBER(S):	CCA 2006/1935; 2006/1937
COUNSEL:	R Burgess D Woodburne
SOLICITORS:	S O'Connor S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/41/0211; 03/11/0269
LOWER COURT JUDICIAL OFFICER:	Hosking SC DCJ, Bellear DCJ

2006/1935
2006/1937

BARR J
ADAMS J
ROTHMAN J

19 DECEMBER 2006

TJC v REGINA

Judgment

1 BARR J: The appellant, whom I shall call TJC, seeks an extension of time within which to appeal against convictions entered in the District Court and to seek leave to appeal against sentences imposed following his conviction at trial and a plea of guilty separately entered.

2 On 6 June 2002 the appellant was found guilty by a jury of the following offences -

Count 1: between 1 and 31 December 1996 having intercourse with a child under the age of ten years;

Count 2: between 1 and 31 December 1996 having intercourse with a child under the age of ten years;

Count 4: between 1 August 1999 and 1 September 1999 indecent assault in circumstances of aggravation; and

Count 5: between 1 August 1999 and 30 September 1999 having sexual intercourse with a child aged over ten and under sixteen years.

3 There were other counts in the indictment but for reasons which need no explanation here the jury found the appellant not guilty as directed by the trial judge.

4 The appellant was convicted on 6 June 2002 and sentenced on 6 September 2002. He later pleaded guilty on an independent charge and was sentenced on 4 July 2003. In each case he was required by the rules to file within twenty-eight days of the event a notice of intention to appeal or to seek leave to appeal. The notice of appeal against the convictions and notice of application for leave to appeal against the sentences was not filed until 11 August 2006, more than four years out of time. Although the Registrar has power to extend time, no application was made. The Crown opposes any extension of time in the conviction appeal and in the applications for leave to appeal against the sentences.

5 Parties who wish to appeal to this Court after a gross delay ought not to assume that an order granting an extension of time within which to do so will be treated as a mere formality: R v Lawrence [1981] NSWLR 112; R v O’Hara [2005] NSWCCA 97.

6 The exercise of the discretion requires consideration of the likely consequences of an extension of time or the refusal thereof; the likely effect on the other party if it is granted and on the applicant if it is not. One matter that falls for consideration is the nature of the case and the likelihood of success of the appeal if an extension of time is allowed. It is therefore necessary to consider the appeal the appellant would bring if permitted to do so and its likely chances of success.

The trial

7 The complainant, whom I shall call SAT, was the maternal granddaughter of the appellant, born on 2 May 1987. She moved with her mother and two brothers to reside in a certain town. In September 1996 the appellant took up residence in the same town. All the offences were said to have been committed at the appellant’s house in that town when the complainant was staying there overnight. The events on which the first two counts rested were said to have taken place one evening in December 1996, when the complainant was nine years old. The first involved cunnilingus and the second penile intercourse. The charge in the fourth count was that in August 1999, following a school camp, the appellant fondled the complainant’s breasts. The fifth count involved penile intercourse on an occasion in 1999.

8 The Crown adduced medical evidence to show that there was a full thickness tear of the complainant’s hymen, consistent with penile penetration, which could have taken place between months and years before the time of examination.

9 In 2000 the complainant made these things known and investigating police officers spoke to the appellant. He denied the offences.

10 The appellant served on the Crown a notice of alibi, accounting for his absence from the town between 25 November 1996 and 2 January 1997.

11 A trial began in the early part of 2002 but had to be aborted for reasons which have no present importance. During the trial the complainant appears to have said in evidence that the events charged to have taken place in December 1996 took place in October of that year.

12 Notwithstanding that evidence and the notice of alibi, the Crown presented at the retrial an indictment which particularised the dates of the 1996 charges as between 1 and 31 December.

13 Examining counsel, knowing the issue on the 1996 counts, asked this question -

Do you recall going over to stay at your grandfather’s house sometime in December 1996?

14 The question was leading and might have been objected to. It was not. The complainant’s answer was in the affirmative. During her cross-examination she was asked whether at the first trial she had said that things had happened in October. She did not respond. Towards the end of her cross-examination on the 1996 charges there was this evidence-

Q Do you know now that your grandfather was in Sydney in December?
A No.

Q You don’t know that?
A No.

Q So you’re saying you don’t know what time of year it was that you went over to your grandfather’s except that it was after he moved to (the town) ?
A Yes.

15 This evidence prompted the Crown Prosecutor to ask the leave of the Court to amend the indictment to enlarge the dates of the first and second counts. The Crown also sought to enlarge the dates pleaded for the counts based on events of 1999 but there was no suggestion that the appellant would seek by evidence of alibi to account for his whereabouts during that year.

16 Ordinarily, dates charged in an indictment are regarded as particulars and the Crown is not bound to prove that the events happened within the dates pleaded: Criminal Procedure Act1986 s16 (1) (g), (h); R v Dossi (1918) 13 Cr App R 158; R v Stringer (2000) 116 A Crim R 198. However, circumstances may raise the time to the status of an element or something that has to be proved beyond reasonable doubt. One such circumstance is when the issue is closed by the accused’s putting forward evidence of alibi: R v Pfitzner (1976) 15 SASR 171; R v MacDonald (1996) 84 A Crim R 508. See also R v Stringer; R v Swan (1987) 27 A Crim R 289.

17 The application to amend for the 1996 counts was refused but amendment was allowed for the later counts. In giving judgment the trial judge said this-

The general rule is that dates are not an essential part of an averment in an indictment. There are, however, exceptions to that rule. Dates can become essential in the present circumstances where an accused person seeks to meet such allegations by way of alibi evidence. There are authorities to the effect that a court should not permit the amendment of dates in an indictment where the Crown has chosen to allege a specific period in which events are said to constitute offences have happened and the accused has come to court ready to meet those allegations with evidence by way of alibi. I see no reason to depart from those authorities in this instance.
Accordingly I refuse the Crown’s application to amend the range of dates in counts 1 and 2 because in my view, in the way this case has been conducted, it would be unfair to the accused to do so.

Defence counsel said that he proposed to make a no-case submission on the 1996 counts and submitted that there was no evidence that those events had happened in December 1996. In refusing to direct verdicts of not guilty the trial judge said this -

…assuming your client raises an alibi in relation to December, I will say to the jury, that subject to what the Crown says, something to the effect that they will have to be satisfied beyond reasonable doubt that these events, if they did happen, happened between those two dates…

18 The Crown immediately responded, saying in part-

…I know your Honour will undoubtedly cover this but the same caveat in relation to the dates and in relation to count 1 and 2 does not exist really in relation to (the counts based on later events) .

19 The Crown thereby accepted the obligation to prove not only that the 1996 events happened but that they happened in December.

20 The defence went into evidence. The appellant gave evidence, as expected, that between 25 November and 2 January he was continuously absent from the town. Part of his explanation involved the illness of his mother, who lived in a place remote from the town and was taken to hospital, and the appellant’s having stayed with a brother in a suburb of Sydney. The appellant identified a diary which, it was asserted, supported his evidence about where he was during December.

21 In cross-examining the appellant the Crown Prosecutor put to him that he committed the acts upon which the 1996 counts were based in December of that year. He suggested to the appellant that the diary entries were fabricated, having been made afterwards to suit his defence.

22 The appellant called evidence from his mother and his brother, both of whom gave evidence tending to support his account of his whereabouts.

23 In his closing address the Crown Prosecutor attacked the authenticity of the diary. He did not submit that the jury should find that the events occurred at any time other than the times pleaded in the indictment. In his closing address defence counsel defended the diary.

24 The summing-up commenced immediately. During the course of it the trial judge said this -

In counts one and two there is a reference to these two dates, 1 December 1996 and 31 December 1996. There is a reference to, in counts four and five, two other dates… Ordinarily, as a matter of law an indictment is not defective because it does not state the date of an offence correctly or if states the – ordinarily it – does not mean that an indictment is defective if the date or dates are stated wrongly or imperfectly. The date or dates in a charge in an indictment are really what lawyers call particulars. They are not one of those essential things that have to be proved by the Crown. They are not an element of the offence. They really act to inform everybody, including, in particular the accused of course, when the offence is alleged to have occurred.
However in relation to counts one and two the position is slightly different. It is different for this reason, that as a matter again of ordinary fairness, if the Crown brings charges and says look this offence happened on this particular date or it happened between these particular dates, and an accused person says well you say that but I can prove that on that date I was somewhere else or between those dates I was somewhere else so that I have an alibi. Then the Crown will be fixed in effect with those dates and cannot rely on any other dates. So in that circumstance where there is an alibi raised the dates do become critical. In this case of course according to the accused he was not in (the town) between 1 December and 31 December 1996, and he says well, accordingly, I have an alibi for those dates and I cannot be convicted of those two charges for that reason, I simply was not there. And as I say in those circumstances the law says well it will not permit the Crown to go outside the particular dates because it would be unfair to, in effect, shift the ground.
In the event that you think that the accused has raised evidence which accounts for his whereabouts throughout December satisfactorily so that he could not have been in (the town) during those dates then I direct you that you should find him not guilty of counts one and two. Because, as I say, in relation to counts one and two those dates have now assumed a particular importance such that if the accused can account for his whereabouts during those dates so that the thing could not have happened, well then of course he is entitled to be found not guilty of those two charges. The position with the dates in relation to counts four and five is different, I will come to that when I deal with those counts later.

25 The summing-up did not finish on that day and on the following morning, before it resumed, defence counsel, perhaps troubled by the direction that an acquittal on the first two counts was conditional upon the appellant’s accounting for his whereabouts, said this-

TRAPP: There was just one matter your Honour and that’s in relation to counts one and two. I just wonder if the jury could be perhaps directed that aside from the alibi evidence that those dates are quite – 1 December to 31 December are quite specific, that for him to be convicted of counts one and two they have to be satisfied that the allegations occurred during that period.
HIS HONOUR: Well, I’m about to give them an alibi direction.
TRAPP: No, but I’m saying aside from alibis, if they accept when she gave evidence that she was saying the incidents occurred in about September or a few weeks after (the appellant) moved into (the town) then they couldn’t properly convict him of the charges because --
HIS HONOUR: Why is that?
TRAPP: Well because the indictment specifically says 1 December to 31 December.
HIS HONOUR: Section (16) I think it is of the Criminal Procedure Act says that, as I directed the jury yesterday, that the indictment is not defective because it does not state the date properly or if it states the time of an offence wrongly or imperfectly. It is only the question of the alibi according to the authorities Mr Trapp, that makes those dates critical. Were it not for the alibi that your client has raised the dates would not be critical as I understand the law.
TRAPP: Yes.
HIS HONOUR: That’s what the section says. Is that right Mr Crown?
CROWN PROSECUTOR: Your Honour yes. The mischief in my friend’s submission with great respect to him is that she does not say it happened in September. That’s a suggestion put by --
HIS HONOUR: Well, I don’t think she said that.
CROWN PROSECUTOR: It’s a suggestion put by him, to which she doesn’t reply.
HIS HONOUR: Yes.
CROWN PROSECUTOR: And that’s the mischief in that. The evidence before the jury, she agrees with the proposition something happened in December.
HIS HONOUR: That’s right.
CROWN PROSECUTOR: And the alibi covers but a small period of that.

26 Although it is unclear, what the Crown Prosecutor said to the Court suggests that he was under the impression that defence counsel had put to the complainant that the events happened in September. That would have been a wrong impression. All counsel had asked the complainant was whether she had on an earlier occasion said that they happened in September. The meaning of the Crown Prosecutor’s final observation that the alibi covered “but a small period of that” is unclear. The alibi covered the whole of the period pleaded for the 1996 charges. The debate continued-

HIS HONOUR: Yes, well Mr Trapp I propose to tell the jury, in effect, that although dates are not usually critical because of the way that this case has been conducted and because your client has raised an alibi for the entirety of December 1996, that unless the Crown can prove that there is no reasonable possibility that the position was otherwise than your client says it to be in December, then they should find you client not guilty on count one and count two.
However, I propose to direct them that in the event that they consider that there is no reasonable possibility that what your client says about his movements in December is true, then if they are satisfied that the acts constituting counts one and two occurred, then the December dates are not critical in accordance with, I think it’s section 63. It’s a section in the 60’s of the Criminal Procedure Act. Is that not correct?
CROWN PROSECUTOR: Fifty-eight is the section which permits – 58G says this: “That except where time is an essential ingredient, we need to state the time at which the offence was committed, stating the time wrong or stating the time imperfectly in an indictment is not bad, insufficient, void, erroneous or defective,” etcetera
HIS HONOUR: Fifty-eight?
CROWN PROSECUTOR: Fifty-eight your Honour, yes.
HIS HONOUR: Do you have any further submission to make Mr Trapp?
TRAPP: No, thank you.

27 This was the first indication his Honour had given of any intention to depart from what had been said immediately after he refused to direct verdicts of not guilty. In the meantime the defence had opened and closed its case, the Crown Prosecutor had made his final address and defence counsel had made his final address. During the continued summing-up his Honour said this -

Well now in relation to counts one and two and this question of alibi, I give you the following directions. As I told you yesterday dates are usually not critical in charges in an indictment. It may be that the possibility exists that if the accused did these things to (SAT) that did them not in December 1996, but at some other time, perhaps weeks or months close to that. The accused has – and you will remember in that context that I remind you of what I thought (SAT’s) evidence in relation to these dates and the suggestion by Mr Trapp that she said in the last trial that it was about September and that according to my perception of her evidence that she did not actually answer that question, she did not adopt that as being correct or otherwise.
The accused has raised an alibi for the whole of December 1996 and even though dates are normally not critical with charges in an indictment, the raising of an alibi by the accused for December 1996 makes them critical if you think that there is a reasonable possibility that what the accused says about his movements in December of 1996 may be true, by raising an alibi the accused does not assume the burden of proving the alibi. Consistently with the overall burden of proof resting on the Crown, once an alibi is raised, the Crown must disprove it. I give you these directions, if you think that what the accused says about where he was in December 1996 is true, even though you may think that it is possible that whatever happened to (SAT) , if it happened, happened at some other time, then you should find him not guilty of counts one and two.

So that if you think that what he says about December is true, then simply find him not guilty of counts one and two. Further, even if you think that that account may not be true, but that there is a reasonable possibility that it is true, then you should find him not guilty of counts one and two.
If however, you on considering all this evidence, you think that there is not even a reasonable possibility that what the accused says about where he was in December of 1996 is true, then the dates in counts one and two are not critical and if there is no reasonable possibility that what the accused says about his movements in December 1996 are true, then if you are satisfied beyond reasonable doubt that these events happened then you should find him guilty of them, whether it happened in December 1996 or September or any other time, around that time.
The grounds of appeal

28 There are two grounds of appeal. The first asserts that there was a miscarriage of justice because the direction I have latterly extracted was confusing and unfair. The second was that the evidence was not capable of proving beyond reasonable doubt that the offences took place in December 1996 and that the verdicts were therefore unreasonable.

29 The Crown undertook to prove that the events occurred during December 1996. It never put its case any other way, either in the indictment or in its examination of the complainant or in what it put to the appellant in cross-examination. The evidence of alibi given by the accused and called by him from his mother and brother said nothing about any events earlier in 1996 than 25 November. Neither, relevantly, did the diary.

30 The direction which was finally given to the jury is logically difficult and, I think, likely to have confused the jury. Suppose that they were satisfied beyond reasonable doubt that the events upon which the first two counts were based happened, but not that they happened in December. If they accepted the complainant and rejected the appellant, that was a probable result in view of the complainant’s final position in cross-examination. That would lead to two possibilities. Either the jury thought that the accused’s account of his movements between 25 November and 2 January might reasonably be true or they did not. The jury were likely to wonder why, if they thought that the events could have happened in October, the accused could not be held accountable because he had raised a reasonably possible explanation of his whereabouts in December, but could be held accountable if he had not. They were likely to see the direction as affording some inexplicable and undeserving advantage to the appellant, some procedural advantage that really had nothing to do with the facts they had found.

31 Moreover, the whole of the trial on the first two counts had been conducted on the basis of December or nothing. The Crown Prosecutor put to the appellant that he had committed the acts in December. He did not suggest to him that he had committed them at any other time. The alibi evidence came under strong attack. Although copies of the 1996 diary were not put before this Court it seems likely, judging by the cross-examination, that until 19 August 1996 the diary was used to record only events concerned with the appellant’s work – he was a driver – but that from 19 August 1996 until the end of the year personal matters were recorded. The work entries for the first and better part of the year were written in various inks, yet those from 19 August 1996 to the end of the year were all in the same pen. That pen appeared to be the one that had been used to make all the entries in another diary that was tendered, written in 1999. That appearance was the foundation for the suggestion and later submission to the jury that the later entries in the 1996 diary were a fake and no support for the appellant’s account for his movements between 25 November and 2 January.

32 Defence counsel would have realised the risk inherent in tendering a document having the appearance that I have summarised. It seems likely that counsel decided that the tender was worth the risk because if the jury thought that it might be genuine it was capable of meeting, or supporting other evidence that could meet, the Crown case on the first two counts. It would have been otherwise if the diary had not covered the whole of the period pleaded in the indictment. In the conduct of any criminal case, provided the Crown evidence shows that the alleged offences could have been committed at any time during the period comprehended by the indictment, it is generally considered futile to adduce alibi evidence that accounts for only part of that period. To tender the 1996 diary in such circumstances would be to take a risk for no possible advantage. If counsel had known when he conducted his case that the jury would be allowed to convict if they thought the offence was committed outside the period contemplated by the indictment and covered by the diary he might have taken a different approach.

33 Counsel did not seek any variation of the direction now complained of, but I do not think that Rule 4 should apply. First, counsel made his position clear throughout the trial and asked during the summing-up for a direction that the times had to be proved beyond reasonable doubt. Secondly, for the reasons which I have explained, there was a substantial miscarriage of justice: BRS v The Queen (1997) 191 CLR 275.

34 In the circumstances it seems to me that the trial on the first and second counts was unfair and, subject to one further matter, the convictions on those counts ought to be quashed.

35 The appellant was also convicted on the two further counts, based on the events of 1999. It was submitted on appeal that those convictions also should be quashed. The argument was that the direction about time on the first and second counts would have so confused the jury that it would have diverted them from their primary task of considering the credibility of the complainant, not only of the events the subject of the first and second counts but also of later events. Reference was made to R v Markuleski [2001] 52 NSWLR 82.

36 I do not accept that the direction would have had any such effect and I would dismiss the appeal against the conviction on the remaining counts.

37 As to the second ground, it seems to me that, in accordance with the principle I have mentioned, it was necessary for the Crown to prove beyond reasonable doubt that the events took place in December. In view of the complainant’s answer in cross-examination I am of the view that this Court, looking at the whole of the evidence, could not be satisfied beyond reasonable doubt that the Crown had proved that the events happened in December. The Court should conclude that the jury could not have been so satisfied.

38 Of course, the Crown could secure a conviction at a new trial if it framed its indictment more widely, but I do not think that, having chosen to conduct the trial one way, it ought to have the opportunity to try another.

An extension of time

39 The appellant gave an explanation for the delay. His barrister did not speak to him or give him any legal advice after the conviction and the sentences. The barrister spoke to his brother, who told the appellant that there were no grounds for an appeal. After he was sentenced following his plea of guilty he still did not know what to do. He was advised by inmates late in 2004 or early 2005 that he should have appealed.

40 The Court was informed that the barrister that appeared at trial appeared to be no longer in practice and that the appellant had been unable to have him attend court. Although the appellant has a criminal history, he has never before appealed against a jury verdict. The only appeal recorded is one from the Local Court to the District Court.

41 The appellant asked for assistance and that resulted in his making an application for Legal Aid on 16 November 2005. Although events could not be said to have moved swiftly thereafter, there was nothing about them that was outside the ordinary experience.

42 I conclude that although the history of events since the appellant learned that he could appeal is not entirely satisfactory, there is a partial explanation for the delay. This, combined with the injustice which would result to him if he were denied an extension of time, makes it appropriate in my opinion to grant the appellant an extension of time.

The sentences

43 When, during debate, the Court indicated that it might extend time and allow the appeal against the convictions on the first and second counts, Ms Burgess indicated that in that event the appellant would abandon his application for leave to appeal against the remaining sentences resulting from the trial.

44 The appellant was charged separately with the offence of carnal knowledge of his daughter. The facts were that during the course of the investigation that followed the complaint made by SAT, the appellant’s daughter, who was the mother of SAT, disclosed that on an occasion in 1979, when she was fifteen years old, the appellant forced her to have sexual intercourse. She became pregnant and bore a son. DNA tests showed a very high probability that the appellant was the father of the child. At the time of those events a father who carnally knew any girl of or above the age of ten years and under the age of seventeen years, being his daughter, was liable to be sentenced to serve penal servitude for fourteen years. By the time of sentence the Crimes Act had been substantially amended and s73 bore little relationship to the form it had taken in 1979. Accordingly, the sentencing judge, Bellear DCJ, sentenced the appellant under s73 as it stood in 1979 but, having in mind what this Court said in R v MJR (2002) 54 NSWLR 368, had an eye to the range of criminality and sentences provided for by s66C(3), a more recently enacted provision. That section created the offence of sexual intercourse with another person of or above the age of fourteen years and under the age of sixteen years. The maximum penalty was imprisonment for ten years.

45 Bellear DCJ sentenced the appellant to imprisonment for five years and three months with a non-parole period of four years. His Honour accumulated the sentence to run on from the expiry of the last of the non-parole periods imposed on the sentences resulting from the trial. This is a schedule of all the sentences imposed -

Following the trial

Count 1 Imprisonment for four years commencing 6 June 2002 and expiring 5 June 2006.

Count 2 Imprisonment for four years commencing 6 June 2002 and expiring 5 June 2006.

For counts 1 and 2 a non-parole period of three years expiring on 5 June 2005.


Count 4 A fixed term of one year commencing on 6 June 2002 and expiring on 5 June 2003.

Count 5 Imprisonment for two years commencing on 6 June 2005 and expiring on 5 June 2007.

On count 5 a non-parole period of one year and six months expiring on 5 December 2006.

Following the plea of guilty

Carnal knowledge Imprisonment for five years and three months commencing on 6 December 2006 and expiring on 5 march 2012.
A non-parole period of four years commencing on 6 December 2006 and expiring on 5 December 2010.

46 The effect of all sentences, therefore was a non-parole period of eight years and six months commencing on 6 June 2002 and expiring on 5 December 2010, and a balance of sentence during which the appellant would be eligible for consideration for parole of one year and three months commencing on 6 December 2010 and expiring on 5 March 2012.

47 The sentence imposed by Bellear DCJ was attacked on three grounds. The second ground was that his Honour erred in taking into account a matter of aggravation which if charged would have justified conviction of a more serious offence. Reference was made to de Simoni v The Queen (1981) 147 CLR 383.

48 The elements of the offence were that the complainant was the daughter of the appellant, that she was over the age of ten years and under the age of seventeen years and that he had had sexual intercourse with her. According to the statement of facts put before his Honour the appellant met the complainant as she got off the school bus. He gave her some excuse for picking her up and took her for a ride in his car. He drove to a quiet place and had sexual intercourse with her in the car. The statement of facts includes this passage -

…and he then forced his daughter to have vaginal intercourse with him…

49 In giving sentence his Honour recited passages from the statement of facts including the passage I have extracted.

50 I do not accept that his Honour took into account any force used by the appellant or any expression or implication of lack of consent on the part of the complainant. All his Honour was doing in the passage I have extracted was repeating the facts which had been put before him. In another part of the remarks on sentence his Honour listed the aggravating features of the offences. I will not list them here. Those features do not include any reference to force or lack of consent.

51 This ground of appeal has not been made good.

52 The third ground of appeal asserts in part that the sentence of five years and three months was manifestly excessive, having in mind that the effective maximum sentence was ten years imprisonment and that his Honour expressly permitted a twenty per cent discount for an early plea of guilty.

53 The appellant had served a period of imprisonment in the past for assaulting his daughter LT and her stepsister SG. Notwithstanding those matters he remained undeterred and had sexual intercourse with LT when she was just fifteen. The consequences were serious. It would be difficult to imagine a worse breach of trust. Enormous harm resulted to the family.

54 In my opinion a sentence of five years and three months was well within his Honour’s range of sentencing discretion.

55 The reminder of this ground attacks the total effective length of all five sentences and the relationship between the effective non-parole period and the balance of the term. In my opinion Bellear DCJ erred in imposing a sentence which produced a non-parole period of eight years and six months followed by a period during which the appellant should become eligible for release on parole of as little as one year and three months. However, because I would quash the conviction on the first and second counts following the trial, and would as a consequence vary the dates of all the sentences, it is unnecessary to deal with the sentence precisely as it was imposed.

56 The first ground of appeal may be considered simultaneously. It complains that his Honour erred by failing properly to consider the question of totality and the effect of accumulation on the ratio between the effective non-parole period and the total effective sentence.

57 By s59 Crimes (Sentencing Procedure) Act 1999 a court that quashes or varies a sentence of imprisonment on appeal may vary the date of commencement of any other sentence.

58 The effect of quashing the convictions and sentences on the first and second counts at trial would produce the result that the appellant was imprisoned between 6 June 2003, after the expiry of the twelve month fixed term, and 6 June 2005, the commencement date of the sentence imposed for count five, without conviction. In view of the fact that the lengths of the sentences following trial are not challenged, I would vary the commencement date of the sentence on count five by accumulating it upon the one year fixed term on count four.

59 Ms Burgess submitted that the sentence on count five should be advanced by three years rather than two to make it concurrent with the sentence on count four, but in my opinion the seriousness of the appellant’s conduct is such that he should not be left effectively unpunished for the assault contemplated by count four.

60 The result would be that the non-parole period for count five would expire on 5 December 2004. If the sentence imposed by Bellear DCJ were similarly advanced by two years, it would commence on 6 December 2004 and expire on 5 March 2010. The non-parole period, unvaried, would expire on 5 December 2008. The total effective sentence would become one of seven years and nine months comprising a non-parole period of six years and six months and a balance of term of one year and three months. Such a sentence would in my opinion leave insufficient time for parole. The circumstances do not justify a parole period exceeding one-third of the aggregate non-parole period, but I would wish to fashion a balance of term, with eligibility for consideration for parole, approximately equal to one-third of the non-parole period.

Orders

61 I propose the following orders -

1. Grant an extension of time within which to bring the appeal and the applications for leave to appeal against the sentences to the dates of filing the appropriate notices in the registry.
2. Uphold the appeal, quash the convictions and sentences on the first and second counts and direct the entry of verdicts of acquittal on those counts.
3. Grant leave to appeal against the remaining sentences.
4. Dismiss the appeal against the sentence on the fourth count.
5. Vary the sentence on the fifth count so that it is taken to have commenced on 6 June 2003 and to have expired on 5 June 2005.
6. Vary the non-parole period on the fifth count so that it is taken to have commenced on 6 June 2003 and to have expired on 5 December 2004.
7. Vary the sentence on the carnal knowledge conviction so that it is taken to have commenced on 6 December 2004 and will expire on 5 March 2010.
8. Quash the non-parole period and substitute a non-parole period of three years and six months, which is to be taken as having commenced on 6 December 2004 and which will expire on 5 June 2008.
9. Declare that the first day upon which the appellant will be eligible for consideration for release to parole will be 5 June 2008.

62 ADAMS J: I agree with Barr J.

63 ROTHMAN J: I agree with Barr J.

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