TL v The Queen - [2020] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TL v R [2020] NSWCCA 265
Hearing dates: 8 July 2020
Decision date: 19 October 2020
Before: Hoeben CJ at CL at [1];
Adamson J at [303];
Bellew J at [319]
Decision:
(1)   Leave is granted to extend the time within which the application for leave to appeal against conviction can be brought.
(2)   Leave to appeal against conviction is granted.
(3)   The appeal against conviction is dismissed.
(4)   Leave to appeal against sentence granted.
(5)   The appeal against sentence is dismissed.

Catchwords:
CRIMINAL LAW – CONVICTION APPEAL – offence of murder – victim a two year old child – identity of offender in issue – whether hearsay evidence wrongly admitted – whether tendency evidence wrongly admitted – whether direction pursuant to s 165 of the Evidence Act 1995 (NSW) should have been given to the jury – appeal against conviction dismissed – SENTENCE APPEAL – whether level of objective seriousness of offending properly assessed – whether sentence was manifestly excessive – no lesser sentence warranted in law – appeal against sentence dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) – s 18(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A
Criminal Appeal Act 1912 (NSW) – ss 5(1)(b), 6(1), 10(1)(b)
Criminal Appeal Rules 1970 (NSW) – r 4
Evidence Act 1995 (NSW) – ss 65, 66, 97, 98, 101, 137, 165

Cases Cited:
Apps v R [2006] NSWCCA 290
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
ARS v R [2011] NSWCCA 266
Baines v R [2016] NSWCCA 132
Bin Sulaeman v R [2013] NSWCCA 283
Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26
Clarkson v R (2007) 209 FLR 387; [2009] NSWCCA 70
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Donohoe v R [2012] NSWCCA 176
Ellis v R (2003) 58 NSWLR 700; [2003] NSWCCA 319
FL v R [2020] NSWCCA 114
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hofer v R [2019] NSWCCA 244
Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20
Ilievski v R; Nolan v R [2018] NSWCCA 164
IMM v The Queen (2016) 259 CLR 300; [2016] HCA 14
Kanaan and Ors v Regina [2006] NSWCCA 109
LN v R [2020] NSWCCA 131
LS v R [2020] NSWCCA 120
KT v R [2008] NSWCCA 51
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 (Mason J); [1986] HCA 40
Moodie v R [2020] NSWCCA 160
O’Keefe v R; R v O’Keefe [2009] NSWCCA 121
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
Pfitzner v R [2010] NSWCCA 314
Poniris v R [2014] NSWCCA 100
R v Abrahams [2013] NSWSC 952
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
R v Dennis [2009] NSWSC 1357
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
R v JK [2018] NSWSC 250
R v LN; R v AW [2017] NSWSC 1387
R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
R v Pfitzner[2009] NSWSC 1267
R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
R v Straffen (1952) 2 QB 911
R v TL [2017] NSWSC 426
R v TL [2019] NSWSC 715
R v Warren Ross (No 2) [2013] NSWSC 2042
Shepherd v R [2011] NSWCCA 245
Sutton v R (1984) 152 CLR 528; [1984] HCA 5
Taleb v R [2015] NSWCCA 105
The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40
Vagg v R [2020] NSWCCA 134
Versluys v R [2008] NSWCCA 76
Vickers v R [2006] NSWCCA 60
Williams v R (2000) 119 A Crim R 490; [2000] FCA 18 1868
Zuffo v R [2017] NSWCCA 187

Category: Principal judgment
Parties: TL – Applicant
Regina – Respondent Crown
Representation:
Counsel:
M Ramage QC/T Liu – Applicant
E Balodis – Respondent Crown
Solicitors:
P E Green – Applicant
Solicitor for Public Prosecutions

File Number(s): 2014/00131951
Publication restriction: Yes
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Date of Decision:

5 June 2017

Before:

Latham J

File Number(s):

2014/00131951

JUDGMENT

HOEBEN CJ at CL:

Nature of proceedings

The applicant (TL) was convicted after a trial before Latham J and a jury in the Supreme Court at Coffs Harbour between 19 April and 19 May 2017 on one count of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The victim was his stepdaughter TM who died on 21 April 2014. She was aged two and a half.

The applicant seeks leave to appeal against his conviction. None of the applicant’s grounds of appeal raises a question of law alone. It follows that his appeal is pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and each ground requires leave. He has also sought leave to appeal against sentence.

Crown case

TM died on 21 April 2014 in Coffs Harbour Hospital. Immediately before her admission to hospital, she had been residing with the applicant and her mother “MW”. MW and the applicant were in a de facto relationship and he played a fatherhood role in TM’s life. On occasions, the applicant’s nephew “DM” stayed with them in their unit. DM was at the unit on the evening of 20 April 2014. He had also been staying there when an incident occurred some ten days earlier when the deceased had sustained burns to her feet in hot water.
On 20 April 2014, MW had been out with TM and returned to their home unit in the early evening. Shortly thereafter, MW and DM left the unit to purchase food at a Kentucky Fried Chicken (KFC) outlet. They were away only a short while. On their return, the applicant reported that the deceased had vomited and it was noted that she was limp. The applicant and MW immediately took the child to the Emergency Department at Coffs Harbour Hospital. A series of procedures were carried out without success and she was pronounced deceased in the early hours of 21 April 2014.
Although various causes were explored, it was not in issue by the conclusion of the trial that the cause of TM’s death was blunt force trauma to her abdomen which had caused a tear in the mesentery and resulted in substantial internal bleeding leading to her death. The Crown relied on an intention to inflict grievous bodily harm.
The Crown case was that the injury that directly led to the death of TM had been caused by the applicant when he was solely in charge of her while the others were away getting food from the KFC outlet. The injury could have been caused by either MW or DM, although the opportunity of the latter to do so was relatively limited.
The applicant, when interviewed by the police, immediately denied assaulting TM. He gave evidence and denied causing any blunt force trauma which led to the child’s death.
The issue at trial ultimately became whether the Crown had proved beyond reasonable doubt that the person who had inflicted the blunt force trauma to the abdomen of TM that caused her death was the applicant and that his intention at the time was to inflict grievous bodily harm.
In his conviction appeal, the applicant relied upon the following grounds:

Ground 1 – The trial miscarried

Ground 2 – The trial judge erred in admitting inadmissible hearsay evidence

Ground 3 – The trial judge erred in admitting the evidence, the subject of the Crown’s amended tendency notice, of injury in the form of scald/burn sustained by TM as tendency evidence

Ground 4 – The trial judge erred in admitting evidence of bruising observed on the child and evidence of other instances of harm to the child as tendency evidence

Ground 5 – In the alternative to Ground 2 above, the trial judge erred in not giving a direction under s 165 of the Evidence Act 1995 (NSW) in relation to hearsay evidence of the child TM

THE EVIDENCE AT TRIAL

MW gave birth to the deceased in October 2011 (T225). When her relationship with the deceased’s father ended, MW began a relationship with the applicant in November 2013. In February 2014, the applicant, the deceased and MW moved into a unit in Karuah Avenue, Coffs Harbour. MW described the deceased as “really good”. She was putting on weight in the normal way and was toilet training. At the time of her death, the deceased had her own bedroom. The applicant’s nephew, DM, would often stay over at the unit on the lounge. The applicant was working fulltime for the NBN installation company from about six or seven in the morning until about three or four in the afternoon. MW was not working.
MW was asked about bruises on the deceased when she was about four months old. MW said she was aware of the bruises when the deceased went to day care but did not see what it was that caused the bruises. On earlier occasions, MW had seen bruises on the deceased’s “neck, chin, jawline sort of area”. MW noticed that bruises on the deceased’s neck would fade and come back. She also noticed that if she or the applicant tickled the deceased on the stomach that she would bruise. There was an occasion when she went to a kids’ fun and social centre and came home with little bruises on her legs. MW said “I started putting all of that down to bruising easily instead of just a normal child bruising”.
Sometime in April 2014, MW was changing the deceased’s nappy on the lounge at around 7am in the morning when she noticed marks on her feet and bottom. She took photos of the marks and called the applicant. MW said “the only part of the conversation I really remember is him letting me know that he had bathed her and that she said the water was too hot and that she’d slipped, and then I sent the photos through”. The photographs MW took and sent to the applicant were tendered as Exhibit G. In relation to the photos of the deceased’s ankle, MW said the whiter parts on the foot were blisters and that “the right foot was worse than the other foot but they did both blister” (T239-240).
As part of a text message chain on 10 April 2014, MW sent a text to the applicant that read “TM just came in telling me you hurt her neck again [sad face]” (T312). When asked what the deceased told her, MW responded “I can’t remember her telling me that” (T312.46). Eighteen minutes later, the applicant sent a text to MW that said “I’m over this”(T312). MW replied “Over what?” and the applicant replied “Her saying those things MW. She was fine this morning with me. I’d never hurt her. MW, I feel like shit knowing I could have had the water too hot for her. I might come home” (T313). After sending the photos and text messages, MW picked up the applicant.
When she asked him about the burns, the applicant said “he went to check her before he left, she’d done a poo so he bathed her. When he was cleaning out the bottom of the bath with hot water that was when TM had jumped in and she’d slipped up when it was just straight hot water and he’d pulled her out” (T243). The evidence of MW was:

“Q: Did you say she slipped in?
A: Like she's gone to get in and he said that as she's gone to get in, she's slipped which I assume would have been because of the hot water.
Q: Well don't assume anything. Just tell us what it was that he said.
A: Yes so that's what he said.
Q: All right. Now was she able to step into the bath herself?
A: Yes.
Q: Now were you aware at that time of whether or not he had any practice of, in terms of cleaning TM up, once she'd dirtied her nappy?
A: No, I would always do it, or usually.
Q: Was there any occasion, apart from this, that there was any washing of her like that?
A: Like in a bath?
Q: Yes, by him?
A: No, I'm pretty sure I done all the bathing.
Q: I beg your pardon?
A: I'm pretty sure I done all the bathing.
Q: All right, but in terms of, if she pooed her nappy, for example?
A: I done that.
Q: Okay, but was there any occasion when he had done it by washing her down in the bathtub?
A: No, not that I can think of no.
Q: Did you, on any occasion after this conversation that you had with him about how the burns had occurred, did you on any occasion tell anyone else that you were in the bathroom as opposed to him when this occurred?
A: Yeah.
Q: Who did you tell that to?
A: My family.
Q: Anyone else?
A: Not that I can think of.
Q: Why did you do that?
A: Because we'd seen TL's family there was a lot of already, you know, “Why didn't you check the hot water?” TL seemed to feel really bad about it and I just didn't want to, I knew that he 'd cop more coming from my family.” (T243-244).

MW never heard the deceased making any painful cry of any sort because of her burns. Over the Easter weekend of 2014, DM was staying at the unit and the deceased was “really good, minus her feet”. MW recalled that on Easter Sunday there were Easter eggs for the deceased and that “she was excited” about the eggs even though she “was struggling with her feet ... you could see that when she walked she was in pain, she wanted to be picked up quite a lot, and she wouldn’t really choose to get up and run around ... she was tiptoeing”(T248).
Over the Easter weekend (19-20 April 2014), a video was taken of the deceased who was wearing socks. MW said that this was to “cover the bandages”. The video showed the deceased sitting with her legs crossed which did not cause her any pain or discomfort at that time. When MW put the deceased to bed later that night, she described her condition as “the same” as how she was in the video taken earlier that day. The video was tendered as Exhibit H (T252).
MW said that she, DM, the applicant and the deceased returned home at about 5pm on 20 April. Not long afterwards MW and the deceased drove to her mother’s house for a visit and stayed there for about an hour. MW described the deceased as “fine” and “tired”. MW and the deceased then drove home at about 6pm. When they returned, DM and the applicant were watching TV. MW made the deceased some party pies for dinner.
MW was pretty sure the deceased ate sitting at the table and “I don’t think it was long after that I got her ready for bed ... I would’ve changed her nappy, wiped her down” (T258). MW put her to bed and could not recall if the applicant helped. She and the deceased hugged each other. The deceased did not complain of any discomfort. MW turned out the light and closed her door as normal. MW explained that the deceased was tall enough to reach the door handle of her bedroom to open the door and would often come out and wake MW up in the mornings.
After putting the deceased to bed, MW and the applicant went to the back patio to discuss dinner plans. DM stayed inside and watched TV.
MW’s evidence was:

“Q: You said you were outside for a period of time was that for the whole of that half an hour or something less?
A: I'm not too sure, I think I left from out the back to leave and go get dinner so.
Q: Before you left to go and get KFC did you hear any sounds coming from TM’s room?
A: No.
Q: When you left are you able to say whether her door was still closed?
A: Yeah.
Q: When you left did you go alone or with someone?
A: No DM came with me.”(T259-260).

There was no issue that MW and DM went to KFC and a receipt from KFC was tendered as Exhibit J. MW said that when they returned, the front door of the unit was open but the screen door was closed and locked. When MW approached the front door, she saw the applicant coming out of the deceased’s room in the hallway. MW could not recall what the applicant was wearing. As the applicant unlocked the screen door MW asked him what was wrong and why was he in the deceased’s room.

“He told me that TM had cried and he went to check her; that she had a little spew, so he offered her a drink and she didn't want it. She wanted to go nigh nigh, and he put her back to bed ... then I said ‘So she's okay?’ and he said Yeah’” (T273).

MW said she did not go and check on the deceased “because he said she was okay” (T 273).
MW said that the applicant told her that he “had gotten spew on his arm”, so he went and “washed his arm off”. When asked if she saw anything on the applicant’s arm, MW responded “no I wasn’t close enough”. MW and DM ate their KFC dinner on the couch and the applicant sat at the table. MW did not hear any sounds coming from the deceased’s room.
Before any of them had finished their meal, MW “got a feeling to go and check on her” (T275). As she got up to go and wash her hands before checking on the deceased, the applicant got up and went “to check her and took her into the toilet, and that’s when I seen her”. After washing her hands, MW saw the applicant with the deceased in the toilet and said “he was rubbing the deceased’s back and telling her that she needed to spew ... he knelt down and she was standing like face towards the toilet and he was rubbing her back, and then she’s gone floppy and he’d had to held her - hold her face up”. MW did not see the deceased vomit. MW’s evidence was:

Q: When you say “floppy”, could you describe to the jury what you mean by “floppy”?
A: Kind of just like went lethargic, like - I don't know how to explain it She just couldn't control her body anymore.
Q: And what - how was she being held, if at all, at that time?
A: The same. So with TL standing with her at the toilet and she's gone floppy. He's picked her up with his arms like a baby.
Q: Yep?
A: And carried her out to the car.
Q: Did she say anything?
A: She tried.
Q: Okay but did you hear her say anything?
A: On the way to the hospital she managed to tell me that she loved me and that was about it.” (T276-277)

The deceased was sitting in the front seat next to MW who was driving and “panicking”. When they arrived at the emergency area, they rushed through and yelled for help and nurses and doctors took the deceased to another room “to try and stabilise her”. Both MW and the applicant called their families who came to be with them at the hospital. Medical staff told MW that the “cause of death was internal bleeding”.
MW had no trouble putting the deceased to bed on the night of her death and the deceased had even “asked to go to bed”. MW did not notice anything unusual, other than the burns on her bottom cheek and the two bruises underneath her jaw that she had seen before. On 20 April 2014, the deceased had “a little bruise on her head from when she was with MW’s brother Shane and his girlfriend, and they said that she had hit her head on the rails of the stairs at her nan’s place”. MW could not say with certainty whether the deceased had complained of a sore tummy on Easter Sunday, but she had noticed that the hair on the top of her head had “thinned out a lot more”. MW described the deceased on Easter Sunday as “she was good. She - because of her feet and not being able to walk around in them properly, she wasn’t obviously running around, so she was sitting more with me than playing ... but like her attitude wise, she was fine.”(T284)
At some point in the weeks before Easter 2014, MW was at her mother’s house and had a conversation with her concerning something the deceased had told her (T293).

Q: So what did your mum say?
A: So mum had TM for a little while and when I got back there she was talking about how they were playing a game that we used to always play but in the game she had also mentioned that TL had punched her.
Q: Who said that TL punched her?
A: TM said that to my mum.
Q: Was this something that your mum told you?
A: Yeah.
Q: Did you speak to TL at any time after that?
A: Yeah, but when Mum had told me it was like it was in the game that we all played anyway, so I didn't take it as if he'd actually hurt her. Like, so it was kind of I would've brought it up but probably not --
Q: Do you have any memory of bringing it up with him?
A: No.” (T293.28)

Cross-examination

MW agreed that there was an occasion where the deceased told MW that Claire Key, the owner of Midcoast Family Day Care Centre, had spanked or smacked her (T294). MW spoke with Ms Key and they established that it did not happen and MW accepted this. Ms Key’s daughter also attended day care and Ms Key was cranky at her daughter for something and had smacked her daughter “but then TM had said that it happened to her”.
MW could not remember the applicant saying goodnight to the deceased on the night of her death and disagreed that he came into the deceased’s room to say goodnight and they both stayed in her room for a period of time.

MW said it was very rare that the applicant would change the deceased’s nappy, but that on some occasions he did. The usual routine in April 2014 was that the applicant would go to work early and MW would stay in bed. This occurred on the day the deceased received burns. When MW woke up, she checked on the deceased who was fast asleep. She went and sat on the couch with DM for about 15 or 20 minutes until the deceased woke up. The deceased told MW that she had pooed but when MW checked her nappy, she had not done a poo and MW noticed redness on her bottom “so I took off her pants and her nappy, and that’s when I noticed the marks on her feet and bottom” (T302). MW took photos of the marks, which at the time she did not know were burns. MW then called the applicant who told her that he had bathed the deceased and that she had been burned. MW agreed that he was upset and was concerned about something that had happened to the deceased for which he was responsible.
The only area that MW could remember as blistering from the burns was on the crease of the deceased’s thigh on the right leg where the “broken skin” was. She also recalled her blistering on the part of her foot near the white area as depicted in the photographs in Exhibit G (T304). MW dressed the deceased’s burns on Easter Friday but on Easter Saturday and Sunday “I can’t remember doing it”. MW said that she believed that the deceased bruised easily.
MW could not remember the deceased complaining of having a sore tummy on Easter Sunday. MW could not remember the deceased not eating on Easter Sunday. MW said that the deceased’s appetite was no different on Easter Sunday to any other day. She agreed that she was alone with the deceased for periods of time on Easter Sunday, including when she went over to her mother Lee-Ann’s house (T309-310).

Q: And on 20 April, on Easter Sunday, did you at any time do anything to hurt TM?
A: No.
Q: When you were out the back there before you went to KFC where TL was having a cigarette so far as DM was concerned he was somewhere inside the house?
A: Yeah, he was inside the house.
Q: But you don't know where he was?
A: I'm pretty sure he was in the lounge room.
Q: And you didn't do anything to hurt - did you do anything to hurt TM in her bedroom that night?
A: No”. (T309-310)

In re-examination, MW recalled that there was an occasion when the deceased said “TL no hurt her”, which she took to mean that the applicant had not hurt the deceased (T313).

DM, the nephew of the applicant, was aged 14 at the time of the deceased's murder and 17 years of age at the time of the trial. DM’s recorded interviews with police from 2014, were played as his evidence in chief.

Evidence in Chief – Recorded Interview 21 April 2014

DM gave evidence that he called MW and the applicant’s unit “TL’s place” and that he would stay there every weekend. He gave evidence that “me and [TL] are real close ... he’s my favourite relative out of the whole family. DM described the deceased as “really cute, funny, nice. Actually really smart for her age”. He recalled going with the deceased to the doctors for “dressing something” and that she was “crying a bit”. DM was also aware that the deceased had bruises due to his own mum grabbing kids on the cheek which resulted in the deceased having a bruise under her cheeks. DM recalled his mother saying she did it to lots of other kids and MW telling DM’s mother not to do it again.
On Easter Sunday, DM saw the deceased having dinner and “TL and MW kissed her, hugged her, put her to bed and MW and me went and got KFC”. He did not see the deceased have a bath or shower before bed and recalled she was “sleepy” and she said ... “I want to go to bed”. DM said goodnight to her and remembered she was wearing her pyjamas. When he and MW returned, “[TL] was cleaning up vomit, from [TM], and then [TM] was making a weird noise, like, about, she was about to vomit, again, but trying to breathe”.
DM described the deceased over the Easter weekend as “perfect” and “playing around”. He saw her eating some chocolates. He remembered that she had some pie and apple juice for dinner on Easter Sunday at the dining table while he and the applicant watched a documentary and MW did the dishes. About 20 minutes later when he returned from a friend’s place, the deceased was asleep in her room and MW said “Oh come with me we’re going to get dinner [at] KFC”.
When they returned from KFC, less than 10 minutes later, the deceased was still in her room with the door closed and the applicant was on the couch watching TV. DM saw “gooey...clear, yellow" vomit on the applicant’s arm. DM did not see the deceased vomit but said that it happened because that was what the applicant told him. DM, MW and the applicant then sat down on the lounges and ate the KFC. MW then said “Let’s go check on TM” and they opened her bedroom door which was shut, turned on her bedroom lights and the applicant picked up the deceased and she was pale. MW started crying and said “Oh my god, [TL] look at her face”.

Recorded Interview 1 May 2014

DM recalled that on Easter Sunday 20 April 2014, “there were burns on [TM]'s feet and um she wasn't like, very, very well but she was sort of well. Like when [MW] was changing her nappy she kept saying, “aw mum, my belly ””
DM described the burns as “bubbles on her feet ... like from the bath, hot water”. DM recalled it occurring not long before Easter, maybe in March and recalled that the applicant put the deceased in the bath but “didn't realise how hot the water was until he put his elbow in and its whip, whipped her out of the bath and held her, and yeah, but she didn’t feel it, like she wasn't crying, plus I’m a real light sleeper I would have heard it”.
DM was asked for further details and clarification about what happened on the evening of Easter Sunday, 20 April 2014. Further evidence that he gave included that he sat in the passenger seat when he and MW went to KFC. When he and MW returned home, the applicant was wearing footy shorts and no shirt and DM saw him go over to the kitchen sink and wash his arm where he said the deceased “had spewed on him”. “MW said “Oh what happened?” He goes [TM] just vomited everywhere”. DM recalled the applicant saying the deceased was making “a weird noise like, she was like gagging, like trying to get more vomit out but she couldn’t” and MW said she would check on her after dinner.
When MW went to check on the deceased, DM heard her cry out “Oh my God, [TL] we’ve got to go to the hospital”.
DM described his own relationship with the deceased as “basically like a brother sort of thing” but that he never changed her nappies or bathed her or put her to bed, but he sometimes took her to the toilet as she was toilet trained and sometimes used the toilet if someone took her there. DM said he never saw MW and the applicant fight about parenting and noticed “[MW] she’s not as strict as [TL]. [TL] was brought up like, really strict back when he was younger but [TL]'s like, strict on a few things, like [TM] not going in the kitchen and not all the time drinking soft drinks and [MW] just says, Yeah, O.K. here have it, if she cries”.
DM said that the only time he ever went into the deceased’s room was if MW asked him to put the deceased’s washing in there. DM recalled on one occasion that he noticed bruises on the deceased’s legs. MW told him they were from when “she went to Tabatinga with her nan” in April sometime. DM recalled the deceased started to bruise around Christmas 2013 in different places on her body “just her arms when she plays with other kids and that’s basically all you see”.
Towards the end of the recorded interview, DM was told that the deceased died from blunt force trauma. When asked if he knew how she could have received such an injury, DM said “Janie’s birthday, my sister, they were jumping on the back trampoline and she got jumped on and she came inside”. When asked why he thought the trampoline incident could have caused her death, DM responded “Well blunt, it could have been the heel of someone’s foot and jumping on the trampoline can be pretty hard”. DM said the deceased did not receive any medical attention after the trampoline incident.
In cross-examination, DM was asked why in his first interview he described the deceased as “perfect, fine and playing around on Easter Sunday” and in the second interview he described her as clingy. He agreed that he did not use the word “clingy” in the first interview and said it was “because I didn’t really think. I wasn’t really thinking”.
Despite considerable differences between his evidence in the first interview when compared with that in the second interview, DM was insistent that his memory was better in the second interview. This was because he had had very little sleep the night before he gave his first interview.
AL was the sister of the applicant and the mother of DM. She gave evidence that the deceased would get bruises every time she fell over or bumped herself.
There was evidence from other relatives confirming that the deceased had burns on her leg. Ms Jackie Leipper was the partner of David W, who was the father of MW and grandfather of the deceased. On Easter Saturday, the deceased sat on her lap “because her feet were really sore because they were bandaged” (T504).
Ms April Sipple was the partner of MW’s brother. She described the deceased as a “healthy little girl”. At some point in April 2014, she became aware that the deceased was losing hair and bruising easily. The deceased used to stay at April’s place once a week, generally on a Thursday night. She said “We all looked forward to it so I tried to keep that a continuous thing” (T515). Ms Sipple gave evidence that on one occasion, the deceased was staying overnight and she noticed a bruise on her right forearm. She asked the deceased what had happened and the deceased told her “TL hurt me”(T515). Ms Sipple asked her “when did he hurt you” and the deceased did not answer and went off and played.

Lee-Ann W

Ms Lee-Ann W is the mother of MW and the grandmother of the deceased. Before MW and the applicant formed a relationship, MW and the deceased were living at her house. Ms Lee-Ann W observed that there was a good connection between MW and the deceased with MW always attending to her care and wellbeing, including bathing her, dressing her, and getting up during the night when necessary. Just before the Easter weekend in 2014, she was told by MW about an incident or mishap with the deceased in the bath and a few days later she saw burns on the deceased’s bottom and bandages on her feet. She never saw her feet without the bandages after this point in time.
On an occasion before Easter 2014, Ms Lee-Ann W was looking after the deceased at her house and noted “we were playing ring-a-ring-a-rosy”(T524). Her evidence was as follows:

Q: And did TM say something to you at that stage?
A: She told me that she said "Grandma you've been naughty".
Q: Speak up please?
A: She said “That's it Grandma, you’ve been naughty. I am going to ring TL and he will punch you in the face like he does to me”.
Q: How many times did she say that?
A: Just the once.
Q: Did you ask her anything about that?
A: No, we went back to playing.
Q: Did she do anything when she said that, “I’ll punch you like TL punches me” or words to that effect?
A: She pretended to punch herself.
Q: Did you say something to MW about that when you saw her later that day?
A: Yes.
Q: Did you see [TL] at your house later that same day?
A. Yes.
Q: And did you hear MW tell TL what you had said to MW about that TM said to you?
A: Yes.
Q: And did he just laugh and say “As if”?
A: That's right.” (T523-524)

Lee-Ann W said the conversation was a couple of weeks before the deceased’s death. On the evening of Easter Sunday when MW and the deceased came to visit her, she gave the deceased some Easter gifts which the deceased “was really excited” about. She noticed the deceased did not eat anything but “was playing and talking. She was fine”. (T525.15-525.20).

Dr Syed Ali Raza

Dr Syed Ali Raza was a general practitioner at the Tristar Medical Practice in Coffs Harbour who had been seeing the deceased since 2012 for a range of reasons. These included upper respiratory tract infections, which was not unusual for a child of her age, as well as a viral rash on her face, immunisations and infected sores from swimming in Coffs Creek.
On Monday 7 April, MW brought the deceased in to see Dr Raza due to a chesty cough and told him that the deceased was bruising easily. Dr Raza checked the deceased’s abdomen, arms, legs and face and found no bruises. Dr Raza prescribed antibiotics for the deceased’s upper respiratory tract infection but could not find any other sign of illness apart from the infection.
Dr Raza next saw the deceased on 14 April 2014 when she came to see him due to first degree “minor, superficial burns”. MW told Dr Raza that two days prior “she was cleaning the washroom and there was a hot water tub and accidentally TM jumped into the hot water tub” (T134, 137). He made notes that the burns to her feet and buttocks were worse on the right side in that there was some redness around the burns but no inflammation, no fevers, no temperatures, no pressure symptoms on her foot and no blisters. Apart from the burns, Dr Raza did not “have any health concerns”. Dr Raza took a swab from both ankles which results from pathology showed as a heavy growth of staph aureus or bacteria that was resistant to penicillin. Subsequently, Dr Raza prescribed the deceased antibiotics and told MW to bring her back each day for daily dressings to be attended to by Nurse Pescante. He made a note that it could take eight weeks for the burns to heal.
Dr Raza was shown photographs from Exhibit A and said that the injury to the inside of the right ankle, as shown in photograph 21, looked “more likely the same” as the burn he had tended to on 14 April, seven days before the photograph was taken. Dr Raza noted that the right ankle wound looked “slightly infected and slightly deep” and “slightly different” in photographs 22 and 23 compared to when he saw her ankle wound on 14 April 2014 and noted that her skin in the photographs was “blue, maybe because she is deceased”. Dr Raza was not able to say whether the burns in the photographs from 21 April were third degree burns. When asked to look at photographs 29 and 30 of the deceased’s buttocks, Dr Raza said the mark shown on her buttocks “looks like a bruise, you know, from object or something”.
In cross-examination, Dr Raza recalled that when he examined the deceased’s burns on 14 April, the skin was “sloughed at both feet” which is part of the healing process because a “first degree burn is just the superficial layer of skin, that gets sloughed off, the skin’s removed from the underlying skin”. Dr Raza confirmed his notes and said that there were no blisters, no inflammation, no infection, no pressure symptoms and no scar even though the swab came back with a bacterial staph aureus. Dr Raza was of the view that the burns had happened as a result of an accident and did not report the burns to DOCS.
In re-examination, Dr Raza was asked what he relied on to conclude that the burns were an accident and he replied “just on the mother’s history”.

Nurse Driver

At 8.25pm on 20 April 2014, at Coffs Harbour hospital, Nurse Driver saw a male holding a child in his arms, who was pale and mottled. The child was unconscious and breathing very shallowly and her eyes were rolling back and her lips were blue.
The child was placed on a bed in the resuscitation room and Nurse Driver supported her airway as other staff arrived and took over. Nurse Driver asked MW what had happened and “she said that they sat down for dinner and the child was crying, so the male went to check on her in her bedroom. A while later he went to check on her again and she had vomited. He went in a while later to see if she was okay, and she didn’t look right, so we brought her in” (T326-327). A short while later, Nurse Driver went back to the resuscitation room and at this stage the deceased was naked and Nurse Driver noticed her labia in the vaginal area and her abdomen area were both swollen and bruised (T 327). MW told the nurse that the deceased had been bruising easily and that it was her intention to have the family doctor investigate the bruising after he had treated the burns to the child’s feet.
The following exchange took place between the witness and her Honour:

“HER HONOUR
Q: I'm sorry, could I just ask you, what was the nature of the bruising on the abdomen that you saw?
A: It just appeared, just, well, because she was a motley colour it just appeared to be some little bruising somewhere, like, on her abdomen, but the actual effect of the motley colour appeared bruising to me, you know, at the time.
Q: But what was the area of the bruising? Were there small bruises or was it a bruise over a large area?
A: No, small bruises, little, tiny bruises.
Q: And the extent of the bruising, in terms of the area of the abdomen?
A: Just a few little areas, just a couple of little areas.” (T327).

Nurse Melanie Lane

Nurse Melanie Lane gave evidence. She undertook a visual assessment of the child and noted firstly that she had chunks of hair missing from both sides of her head, her face was pale and she had small coin or fingertip shaped bruises on the left side of her neck and the left side of her abdomen (T331). Nurse Lane also observed that she had a few smaller bruises on her legs and previously burst blisters on the heels of her feet which were now hard rough skin on the perimeter with new pink skin in the centre. The deceased was intubated and attached to a ventilator to deliver her breaths, as without assistance, she would not have been breathing.

Dr Joseph Anthony Beaini

Dr Beaini was in the Intensive Care Unit at the Coffs Harbour Health Campus when he attended an ill child in the Emergency Department at 8.25pm on 20 April 2014. He observed that the child was flat, unresponsive, pale in colour and tachypnoeic, which meant she had a poor respiratory rate (T362). She was also tachycardic, which meant that she had a fast heart rate and hypotensive, which meant she had low blood pressure. Dr Beaini observed that the child had a bruise on the lower jaw, as well as bruising on the neck and multiple small bruises to the abdomen. She also had healing, crusted lesions to the heels and old lesions to her external genitalia. Dr Beaini explained that a lesion can be a burn, scab or graze.
Dr Beaini gave the following evidence:

“Q: In your experience, can blunt force trauma bring about liver failure?
A: As part of a multi organ failure, yes, but blunt trauma to the liver itself could as well, yes.
Q: The child was anaemic as well, is that right?
A: Yes.
Q: And again, could you explain that expression for us in lay terms?
A: Anaemia is basically a low haemoglobin, and we’ve got chronic, we've got acute sort of anaemias. One can be due to iron deficiency, or you’ve got your acute ones which are generally due to bleeding.
Q: And would internal bleeding lead to anaemia?
A: Absolutely” (T364.43-365.6)

Dr Andrew Na

Dr Na gave evidence. He was a doctor in the Intensive Care Unit at the Coffs Harbour Health Campus. He observed bruise marks on both mandibles, the neck area and belly button of the deceased. He established that “bruising is from loss of blood into the skin, so that could happen in, for example, a blow to that area, blunt force”. (T386)
The following exchange also took place:

“Q: In relation to the multiple bruises that you saw and burns, did that raise anything in your mind as to the reason for the child’s presentation?
A: Yes it did. There are certain features that may raise the possibility of what we call a non-accidental injury, and certainly unexplained or funny patterns of bruising may trigger that red flag that, for example, the bruising that we saw in the patient. From recollection there were some prominent bruises on the left mandible, sort of neck area, of a round sort of pattern, so you immediately think, well, what could cause that? Could it be physically, you know, the mark of the fingers, for example, from grabbing. Its unusual for a child to run into an object that has multiple sort of finger like projections. The burns, you know, she had some signs of burns in both of her feet. She's two and half years old, and you’d think that, why would a child sustain that sort of injury? I mean, it could be just unlucky, that she was in a hot environment to cause burn, but usually at that age, you know, a child might have one foot and then get the painful response and step away but its unusual for both feet to be burnt. So those things just raises a red flag in a clinician’s mind.

Q: The red flag being?
A: Is this effect of non-accidental injuries?” (T387)

Dr Na agreed in cross-examination that he could not be absolutely sure that the child’s injury was a non-accidental injury.

Nurse Margaret St Leone

Nurse St Leone was part of the team working with Dr Na. Nurse St Leone cut off the deceased’s long sleeved pink top and removed her dark coloured track pants and saw bruising to the left side of the child’s head and neck, down the left side of her torso and over her lower abdomen. She also noticed that the child was missing some hair at the front of her forehead. She removed her nappy and saw it had been soiled with faecal matter and also saw what appeared to be old burns on the vulval area and on both feet which she brought to the attention of Dr Na and other members of the resuscitation team. Dr Na undertook a focused ultrasound with sonography for trauma scan which revealed internal injuries.
Nurse St Leone spoke with MW and the applicant while other family members were present and MW told Nurse St Leone that the child had been playing happily that day, had seen her grandparents and eaten Easter eggs and dinner and gone to bed. The applicant told Nurse St Leone that he had heard the child crying three times and attended to her and that on the third time, the child had told him she felt sick, so he had taken her to the toilet to vomit and she went “all floppy”. When Nurse St Leone asked if the child had fallen recently because of the bruises she had seen on her, the applicant said she had not fallen but that she had hit her head on the toilet bowl when she had vomited. MW told Nurse St Leone that she had recently taken her daughter to the doctor due to her bruising and hair loss and that blood tests were to be undertaken when the deceased had finished antibiotics for a sore throat. When Nurse St Leone asked about the burns to the child’s feet, the applicant said that he had run a hot bath and the child had jumped in and slipped on her bottom. MW told Nurse St Leone that she had been taking the deceased to a doctor to dress the burns and when asked if the child had any other medical problems, MW told her that she had been treated for a fluid lump on her head in the past.

Dr Pita Birch

Dr Birch, a paediatrician and neonatologist, was working in the emergency department at the Coffs Harbour Health Campus on 20 April 2014.
Dr Birch noticed burns on both feet and ankles of the child and healing sores on her groin region and upper thighs, as well as bruises on her neck and her abdomen. The child also had bruising on her arms and legs that was normal for a two year old to have, due to running or bumping into things. Dr Birch was not able to examine the child’s back as she was too unwell to turn over. MW, who was extremely distressed, told Dr Birch that the child had been visiting her general practitioner on a regular basis for her burns and that she had told the GP that she was concerned about the child bruising so easily and about her hair falling out. Dr Birch asked MW if anything had happened to the child that day or if she witnessed any injury and she said she had not.
Dr Birch said:

“The liver showed signs of damage and that can be either through some sort of condition or disease affecting the liver, and we speculated on the possibility of that, or in the absence of any disease, trauma to the liver would cause injury and damage to those cells ... In the absence of any sign of disease, then trauma would be the only other cause of this kind of level of damage to the liver” (T407-408.5).

Dr Clement Tsang

Evidence was given by Dr Tsang who was working at the Coffs Harbour Hospital on 20 April 2014. The effect of his evidence was that when asked why he contacted Dr Soundappa, a physician at Westmead Children’s Hospital, a second time he said it was because he had “never seen anything like this so I wanted to get his advice. Just looking at it, it would be impossible to do anything else. You wouldn’t be able to re-sect anything because it’s just not re-sectable. I spoke to him and get his advice and tell him exactly what I found and he told me the best thing to do was to try and pack everything, put pressure on it so its hopefully that would stop it from continue to bleed and try and transfer the patient off as soon as possible.” (T442).
Dr Tsang gave this evidence:

“Q: Does that involve, in layman's terms, using gauze or something similar?
A: Yes, similar it's - if you’re bleeding from here, you put a pack over it, it stops bleeding. In the abdomen because there’s a big space you want to put enough pack in different quadrant to obtain enough pressure so to help put everything in place to stop the bleeding.
Q: Did it stop the bleeding?
A: I was able to pack it, but I don’t think it would be possible due to amount of injury.
HER HONOUR
Q: Doctor, a moment ago when you said you’d never seen this before?
A: Yes
Q: Sorry, could I ask you had you never seen it whether it be in a child or an adult or had you never seen it in a child?
A: I’ve never seen it in a child.
Q: You've never seen it in a --
A: I’ve done a lot of trauma in a tertiary hospital with motor vehicle accidents and so forth, but most of it involves adult patients.
CROWN PROSECUTOR
Q: Motor vehicle accidents, how do you connect that with a mesentery problem?
A: Mesentery injury, it requires a significant blunt force to the abdomen Typically in a motor vehicle accident its usually caused by the seatbelt
Q: Could I ask you to assume a number of things as facts if you would and firstly this, that a forensic pathologist performed an autopsy on the child on 23 April 2014?
A: Yep
Q: And during the course of the autopsy the pathologist saw no sign either with the naked eye or microscopically to indicate that there any tumour or malignancy in the abdomen I'd ask you to accept as well that blood taken from the child was also tested and ruled out or negatived any suggestion of cancer?
A: Yep.
Q: And I'd also ask you to assume that at autopsy the child's bone marrow was examined as well?
A: Yeah.
Q: And again that excluded the suggestion of cancer?
A: Yeah.
Q: And by cancer I'm referring to leukaemia or any other form of cancer?
A: Yeah.
Q: Now, if you were to accept that that was the situation that the forensic pathologist found when he carried out the autopsy --
A: Yeah.
Q: - where does that leave you in terms of how this particular injury could have been occasioned?
A: It would be from trauma.” (T442-444).

In cross-examination, Dr Tsang confirmed that he saw three or four large lymph nodes in the mesentery. He could not recall the exact length of the lymph nodes or whether they were exactly where the tear was or close to it. Dr Tsang said it was “unlikely” that the lymph nodes contributed to the tearing of the mesentery or made the mesentery more susceptible to tearing and bleeding in the presence of trauma. Dr Tsang could not say when the internal bleeding he observed would have started.
Dr Tsang confirmed that one of the blood vessels in a mesentery had been ruptured or torn and that he was unable to identify the source of the bleeding. His experience was that “90% of the time you would not find the source of the bleeding”. More than one avulsion occurred during surgery and it was possible that one avulsion which clots, could cause more avulsions but '”there has to be - the trigger would be a trauma and when that trauma occur, how many vessels is injured or whether any bowel is perforated, I cant say as I am at the end of it”. Dr Tsang confirmed that significant force would have to occur to cause an avulsion.
Dr Tsang agreed that during the autopsy carried out by the pathologist, Dr Cala, on 23 April 2014, a microscopic examination of sections of tissue taken from the liver showed “fresh haemorrhage without any inflammation ... the appearances are of a recent injury less than around six to eight hours old”. The liver near the gall bladder and liver laceration right lobe showed “fresh haemorrhage near a large bile duct without any inflammation”.
Dr Tsang explained some of the difficulties which confronted him:

“Q: Is it possible that due to the absence of inflammation, and a very short period when that damage was sustained and death --
A: Yep.
Q: - it is possible that those liver injuries were sustained during the emergency surgical procedure?
A: It’s possible, but because the view was very poor when the abdomen was open, most of the trauma that we see was in fact in the central abdomen, which is in the small bowel, and the roots of the mesentery. Now, because there’s so much blood in the abdomen, it was difficult to get a clear view of whether there is any injury in the spleen or the liver, because you really have to put your hand right through and lift everything out to see that. But looking at the small bowel injury, at that time I don’t think, due to the trauma of that, I don't think anything could’ve been done to save her and the only thing to do was to pack the liver, which was what we did. Now because of the amount of packs and everything that we put in, is possible to cause a subscapular haematoma, the subscapular haematoma means it’s a haematoma it hasn’t ruptured.” (T540-541).

Senior Constable Adam Goodhand and Senior Constable Bryan

Senior Constable Goodhand and Constable Bryan attended the Coffs Harbour Hospital at 10.30pm on Sunday evening, 20 April 2014. They spoke to the family in a waiting room and told them that they were there to “investigate what had occurred” but that “didn’t necessarily mean that they had done anything wrong at that stage”.
SC Goodhand spoke to MW and the applicant and was told by TL:

“... TL said that while MW was away he went to put TM into bed and TM had been sick or vomited on his arm. He took TM into the toilet, where she was sick some more and then he has cleaned her up, taken her back to bed. He said that shortly after he left her in bed, shortly after he heard what sounded like she was struggling to breathe, so he’s gone back in, and at that time he has noticed that her face had turned blue and she’d gone floppy. He called out to MW because by that stage she was at home, that’s what he said and they both decided that they would take TM into the hospital.” (T101-102).

SC Goodhand asked the applicant if there had been burn marks to the deceased’s feet and the applicant responded “Yeah, that was when I was filling up the bath, she put her feet in or she got in without me looking”.
In cross-examination, SC Goodhand agreed that he had not made notes at the time about what he had been told by MW or the applicant. SC Goodhand said that SC Bryan, however, had made “very accurate” contemporaneous notes and created the report when they returned to the police station at the end of their shift.

Leading Senior Constable Christine Zecchinati

Evidence was given by Leading Senior Constable Christine Zecchinati. She attended the Coffs Harbour Health Campus with the other two constables. When LSC Zecchinati spoke with the applicant, he told her that MW and his nephew went to get some take away dinner. He remained at home. TM was in bed when he heard noises coming from TM’s bedroom so he went and opened the bedroom door and she was standing there. She vomited on his arm so he had taken her to the bathroom to see if she needed to vomit any more. He cleaned her up and put her back in the bedroom. He heard TM again and it sounded like she was gasping for air, so he went to the bedroom. At this point, MW was at home now, from being out. He had gone and got TM. They brought her to the bathroom, noticed that her face was turning blue and her neck was flopping. He called out to MW and from there they had gone to the hospital (T110).

Detective Senior Constable Damien Knowles

Detective Senior Constable Knowles was involved in collecting security camera footage from a number of locations on the route from MW’s unit to the KFC outlet at Park Beach Plaza. The security cameras showed visual footage of the vehicle driven by MW to and from KFC. In the security camera footage, MW’s vehicle was first seen at 7.35pm, heading towards the Plaza. The vehicle was last seen by the cameras at 7.47pm, leaving the Plaza vicinity. DSC Knowles said the trip from MW’s unit to the camera would take one to two minutes in ordinary circumstances. To work out the entire trip time, two minutes would have to be added to each side of the security footage which gave a rough estimate of the time MW and DM left the house as 7.33pm and the time they returned as 7.49pm – a 14 minute trip in total.

Sergeant Scott Andrew Gane

Sgt Scott Andrew Gane attended the Karuah Avenue unit as a crime scene on 24 April 2014. He measured and recorded the temperature of the water in the bathtub in the premises using two mercury thermometers in the water. He then emptied the bath water and repeated the process twice more. On the first reading, the temperature of the water in the bathtub was 52 degrees Celsius and in the second and third reading, the temperature of the water was 59 degrees Celsius. When asked why the temperature was lower in the first test, he responded that there was a possibility that there was still cold water in the lines leading up to the spout.

POST MORTEM EVIDENCE

Dr Allan Cala

On 23 April 2014, Dr Cala, a forensic pathologist, performed an autopsy on the body of the deceased. Dr Cala concluded that the direct cause of death was blunt force abdominal trauma. Dr Cala had available to him, information from a number of sources, including the medical records from the Coffs Harbour Health Campus and the Tristar Medical Practice where Dr Raza worked. His opinion as to the cause of death was based upon his experience and training, the information provided to him and what he observed at autopsy.
Dr Cala prepared a report which included the following comments section:

“The case demonstrates complex injury patterns which are discussed in detail in this section. Firstly, external examination showed the presence of numerous bruises on the face, back and perineum, as well as other injuries.
The bruises on the face, given their size and shape, are suspicious in nature. Their size, shape and position indicate they may have been caused by adult sized finger or thumb pressure. It is my view they have not been caused during ‘normal childhood play’ as they are over the jawline, which is not an area subject to innocent injury during play, are large in size and conspicuously near the external airway, that is the nose and the mouth.
They are, in my opinion, suggestive of imposed external airway obstruction or closure, possibly made during an attempt to quieten the child by placing a hand over the child’s mouth and nose. The bruising to the left side of the face was noticed by a treating doctor at the time of admission and therefore could not be medical in origin.
Facial dissection, which is the internal examination of the facial structures, showed the presence of small bruises to the right side of the mouth on the lips. These may be either medical or nonmedical in origin. If non-medical they may be a subtle sign of external pressure to the mouth.
Secondly, there was a large area of confluent mottled bruising on the front of the abdomen. The bruising was recent (within 6 to 12 hours of death based on microscopic appearances). The haemorrhage was not caused by the laparotomy incision during surgery, but rather was caused by some form of blunt force trauma applied to the front of the abdomen. Its blotchy nature and irregular shape was not suggestive of having been caused by a weapon, but possibly by multiple blows, such as punches or multiple forcible fingertips exerting very considerable pressure to the child’s anterior abdominal wall, or front of the abdomen.
Internal examination of the abdomen at autopsy confirmed the effects of blunt force trauma to the abdomen. This was the immediate cause of death. This trauma resulted in, amongst other injuries, laceration (tearing) of the small intestinal mesentery causing rapid and torrential haemorrhage into the abdominal cavity. This would have had the effect of causing acute hypovolaemic shock due to blood loss.” (T676-677)

Dr Cala said that the descriptions of the child being limp or floppy, of the lips turning blue, of the face being very pale, and the eyes rolling back in the head were consistent with hypovolaemic blood loss.
Dr Cala continued reading to the court from the comments section of his report:

“Other lacerations were also detected to the front of the liver and the soft tissue area at the back of the back of the abdomen or retro peritoneum.
In this situation the child would have been immediately and severely incapacitated after the infliction of these injuries. She would not have appeared “normal”, for any period of time after infliction, before deteriorating. If capable, she would have complained of abdominal pain.” (T 677)

Dr Cala explained that by the words “if capable” he meant if the deceased was capable of speaking properly. He said that he assumed that, at two and a half, she was capable but that he did not know that. He continued reading:

“She would have appeared pale, due to acute blood loss, possibly been sweaty and commenced to vomit. With further blood loss into the abdomen, this situation would have become rapidly worse, such that to any normal adult observer at the time, the child would have appeared very gravely ill. Immediate medical attention would have been indicated and sought.
The injuries to the mesentery were so severe that the surgeons were able to visualise retro peritoneal blood vessels at laparotomy. ...(T677-678).
Q: Yes please?
A: So as I’ve said these vessels are normally concealed by the intact mesenteric fat which suspends the small intestine in the abdomen and is situated at the back of the abdomen. This type of very severe trauma is seldom seen in paediatric cases, even where large forces to the abdomen are acknowledged, such as in motor vehicle trauma.
Clearly, the amount of force used to cause the injuries to the abdomen was very large. I completely reject any suggestion that these injuries could’ve been caused by accidental injury, for example, a fall down stairs or from a height. The narrative above indicates caregivers denied any recent accidental type trauma.” (T678.33 – 678.44).

Dr Cala was shown a photograph of the deceased’s bed and bedhead and the distance from the top of the mattress to the floor. In his opinion, a fall against the bedhead would not have caused the injuries he saw at autopsy.
In relation to the burns to the feet, Dr Cala commented:

“The burns to the feet were all of approximately a similar age, that is, around seven to ten days old. They are not all superficial and one is particularly deep, that is, on the right foot on the outer aspect I do not accept that that they occurred as a result of accidentally being placed in exceptionally hot water.” (T681)

Dr Cala was asked if he could express an opinion about what time the injuries were inflicted, given the death was certified at 2.15am on 21 April 2014. He answered “I would put it out to about eight to 10 hours”. Dr Cala said that the earliest time might be around 4pm or 5pm that afternoon. The latest might have been within a very short period of when the deceased was found when the mother came home from KFC and found her to be gravely ill, a short period before that.
Dr Cala was shown the videos of the deceased recorded at around 4 or 5pm on 20 April. In his opinion, the deceased was absolutely not suffering any of those injuries at the time the videos were recorded.
In cross-examination, Dr Cala said that he did not believe that it was possible that the abdominal injuries could have resulted from a single blow against a hard surface, for example, an item of furniture or similar item.
Dr Cala agreed that the third degree burn on the outer aspect of the right foot would be consistent with the deceased getting into the bath with her right foot coming in contact with the hot water before any other part of her body did so. He said that he thought that the burn on the outer aspect of the right foot was caused by either being exposed to the water for a longer period of time or being exposed to water of a heightened temperature. He said that he was somewhat handicapped by the fact that there was a passage of about 10 days from the time of the burns to the time the deceased passed away and so he was not in a position to answer absolutely accurately the question of whether it was possible that the burns were occasioned to TM accidentally as opposed to deliberately.

In re-examination, Dr Cala was asked if the water in the bath was hot enough to have caused the sort of injury to the right foot, how likely it would have been that the deceased would have then put her left foot in and just sat down in the water. He answered “unlikely because her right foot has already been in the water for seconds ... and I would have thought she’d appreciate then how hot that water was”.
Dr Cala clarified that his estimate was that the bruises on the face occurred about six to eight hours before death.

Dr Christine Ann Norrie

Dr Norrie was asked by police to prepare an expert report in connection with injuries sustained by the deceased from burns to her feet and buttocks.
Dr Norrie examined photographs of the burns to the right and left feet, together with healed burns to the buttocks and healed lesions on the labia, labia majora and the genital region. She also considered various bruises and scars, crusted skin lesions on the back of the head, hair loss and fleas in the deceased’s hair. From Dr Cala’s autopsy report, Dr Norrie understood that the cause of death was severe haemorrhage from blunt force abdominal trauma causing firstly a large area of recent confluent mottled bruising on the front of the abdomen. The haemorrhage was severe and extended from the diaphragm underneath the ribs and lungs to the rectum (T607-608). Dr Norrie agreed with Dr Cala that the deceased’s symptoms would have been immediate, although she might have been winded and unable to talk immediately.
Dr Norrie assessed the burns as first degree burns that were painful when touched on 14 April. She assessed them as superficial, except for an area on the outer right foot. The burn on the right foot was deeper and painless as it was a third degree burn. Dr Norrie understood from what Dr Raza had been told that “TM had accidentally jumped into hot water in the tub in the washroom two days earlier”, i.e. 12 April 2014. MW was cleaning the washroom when this happened.
Dr Norrie contrasted that version of events with what the applicant had told the police in his statement of 21 April 2014 to the effect that he had put the deceased in the bath as a method of cleaning her from a soiled nappy.
As a result, Dr Norrie reported:

“ [The applicant] got it to a temperature he wanted it to be. TM was standing. He peeled off the nappy, held ... her bum under the running water and washed her with a face washer. She complained it was hot. He minimised her complaint, then sat her down. TM started to cry and again said it was hot. TL then felt the bath water, rather than the tap water, and it was hot. He took her out and observed that her feet were a bit red. After MW woke and sent him photos, he came home to take her for medical attention. He did not go into the doctor's surgery. He thought, F--- it. It wasn’t really that bad, you know”. TL indicated there was about 2 inches of water in the bath. TL denied TM had slipped on a substance at the bottom of the bath while trying to wash her and didn’t know why MW thought that, although he’d told her what happened, as she was not there.”(T611)

Dr Norrie reported that “it only takes about a second for a child to scald at 60 degrees Centigrade. There is immediate and severe pain. It would appear that TM was already in the bath when the hot water was added”, noting the temperature was recorded by Sergeant Gane at 52 and 59 degrees Centigrade. Dr Norrie reported that the burns appeared in a “doughnut sparing pattern” which indicated that when TM was in the bath “she’s sitting in the bath, she’s got her bottom on the bath surface, she’s got her legs up in the air, her knees are bent and her feet are in the water. So she’s burnt her feet ... but she’s had her soles on the bottom of the bath as well, so they haven’t burnt” (T614).
Dr Norrie gave the following evidence on that issue:

“Q: And do you – if a child was in hot water like that, how would you expect her to react?
A: She’d scream blue murder.
Q: And what would she do in terms of physical movements? What would she –
A: She tries to get out.
Q: And in terms of getting out, are you able to express an opinion as to whether or not there’d be any other types of marks or scald marks on the body?
A: There’s usually splash marks going up the legs because they stand up and make a lot of splashing as they get - try to get out of the bath.
Q: And did you see any splash marks?
A: No. No. I mean, there might have been one there but it looks more like a mosquito bite or flea bite.” (T614-615)

Dr Norrie in her report described the burns as “mirror image injuries” in that the burns to the “right and left leg, the feet, were quite the same” as well as the burns to the perineum, buttocks and genitalia. Dr Norrie opined that “the burn pattern on her bottom is not from running water but being sat in a very hot bath first.” (T621)
In relation to the skin fold sparing on the groin of the deceased, Dr Norrie said “this pattern is suspicious for abuse. It would appear she was forced to sit down.” (T628). Dr Norrie reported that the feet burns in the photographs taken by MW were indicative of:

“... forced immersion scald burns ... because they have very clear margins, with upper limits. No splash marks that might indicate that TM was trying to get out of the bath when it became hot. They’re symmetrical, circumferential, they’re right round and they’re on both legs, both feet. So that’s called the ‘stocking distribution’ ... One area on the right foot was third degree full thickness. When a child accidentally gets into a hot bath, they usually try to escape, resulting in burns with irregular border of non-uniform depth and splash marks, a lot of splash marks. They’re rarely full thickness because the child climbs out of the bath really quickly. So, the photographs taken by her mother showed TM had well demarcated redness and a line of blistering on the outer aspect of the right hand, going around the heel.” (T 628).

Dr Norrie thought that the combination of “the absence of splash marks, the uniform burn depth, the stocking distribution on both feet, the zebra stripes which is sparing of the flexural creases, secondary to the body being flexed” and the “donut hole sparing in the buttocks” indicated “non-accidental burning.” (T629).
In cross-examination, Dr Norrie agreed that the burns to the deceased were first degree, superficial burns, except for one burn to the outer aspect of the right foot, which was a third degree burn consistent with the right foot being in hot water longer than the other parts of the body. Dr Norrie agreed that it was possible that the deceased hopped into the bath, putting her right foot into the hot water first without withdrawing it. Dr Norrie accepted that in the photographs taken by MW on the day of the burn, she could not see the sole, and so could not say with certainty whether it was red.
Dr Norrie agreed that she could not say with certainty that a whitey-yellow area on the right heel was a burn and agreed that it could be a callous from thickened skin. She did not agree that it was definitely scalding. Dr Norrie also agreed that it was possible that the absence of splash marks could be consistent with the deceased being removed from the bath very quickly.
Dr Norrie agreed with her Honour that following a hard impact to the body, the deceased’s symptoms would have been immediate. The symptoms would have included “haemorrhaging ... incredible abdominal pain ... she might not have cried out immediately, because she was winded, to start off with, and then she would’ve cried. And then she starts to vomit ... after vomiting, she starts to become exsanguinated ... Loss of blood, yeah. So then she starts to faint.” (T638-639).

DEFENCE CASE

The defence case consisted of the evidence of the applicant and of Dr Johan Duflou, a specialist forensic pathologist.
The applicant took part in two recorded interviews. The first interview was conducted in the hours after the deceased’s death on 21 April 2014 and became Exhibit N.
The applicant told police that on the night of Easter Sunday, the deceased ate some of her party pies for dinner but not all of them. After she ate, he and MW took her to bed. MW carried her in there and then passed her to him. He put her in bed and gave her a kiss. Various endearments were then exchanged and MW and the applicant left the bedroom. The applicant said that afterwards a decision was made between him and MW to get KFC for dinner. MW and DM left to go to the nearby KFC drive through.
The applicant then told police:

“I stayed on the lounge and then I started watching, I think I was watching um, Two and a Half Men And then I heard, I heard [TM] cry and then I just kind of listened for a bit and then I heard her, her doorknob like, you know, if she was mucking around with it. So I’ve jumped up and went in to check on her and she was standing at the door like, when I’ve opened it she was standing there and she’s kind of crying like she needed a spew. And I’m going, “Like do you need to spew?” And as I’ve picked her up she's just gone straight on me arm and there just like, a chunk of pie. Like, it wasn’t like a liquidy spew. And then I was friggin’ running her over to the toilet and hung her, her over the toilet. And she kind of didn’t spew much else. She just kind of like, a bit of phlegm and all that kind of stuff come out. And I’ve, I’ve wiped her mouth and that I said, “Do you feel better, darling?” She said, ‘Yes’. I said, “Do you want a drink?” She said, “No I want to go nye nye”. I was like, OK friggin’, I probably should have got her a drink but um, yeah, so I put her back in her bed. But as I was, when I laid her down, I, I was like, I said, “I love you”. And she was kind of, she couldn’t talk properly. She was kind of like, just going like, like that. And kind of, I was like, “Darling, are you O.K?” And she’s like “Yeah, I'm OK. Are you OK?” And I said “Yeah”. Like, you know but she’s actually not talking clearly. Like, it was a bit like, she’s half asleep or something. But she wasn’t. And then um, I've gone out and when I looked back in to check her and that’s when [MW] and that come. And I said, and she's like, “Oh, what's going on?” She’s seen me coming from [TM]s room. I said, “Oh, she just spewed up I was just checking her 'cause she sounds weird...”

The rest of that first interview dealt with what happened after the applicant and MW went up to check on the deceased and what happened during the trip to hospital and at hospital.
The applicant told the police in the first interview that the deceased had been burned a week before her death on both feet “and bum”. She had been seeing a doctor to get the burns dressed. When asked what happened, the applicant responded:

“I’ve gone in just to check her and the room just stunk. And um, she had a bit of diarrhoea ... [He] thought ... I better quickly change her. I pick her up out of her room and put her, I’ve put her in the thing and I’ve like, I've undressed her and I left her, I left her nappy on. And then I’ve turned around and I’ve, I’ve cranked the hot water just to get it, to get that crap, I do it every time you know I just put the hot water on and then I adjust the cold in. Well, I turned around friggin’ peeled the nappy off her and that. And then I’ve turned around and actually sat her oh, not sat her, stood her up in the bath. And she’s telling me it’s hot and I didn't click to it 'cause I'm feeling what’s coming out of the tap. And I’ve already made that warm you know. And I was thinking darling, it’s not hot. And she's like, “It's burning” ...”

In his second interview on 1 May 2014, the applicant was asked to clarify some of the evidence he gave in his previous recorded interview. Police asked him again to describe the deceased on the day of her death. In response, the applicant said that the deceased was sitting on MW and wanted MW to cuddle her the whole time. She seemed happy but she “wasn’t like normal…just clinging to MW and just not wanting” anyone else.
The applicant told police that when MW and DM went to KFC, he heard the deceased crying first and then heard her doorknob turning. When he went to see her “she was crying and she was kind of standing there”. She made a “gag reflex” sound like she wanted to vomit and then vomited on him.
The applicant said the second time he checked on her, five minutes after the first time, he was watching television and thought “I’m just gunna go and check her when I put her to bed she didn’t seem that full on”. When he went to the bedroom, she was making a “weeping noise ... like she had stuff in her throat and she was just trying to clear it or something”. The applicant said that during the 15 minute period that MW and DM were at KFC, no-one else came to the unit. He confirmed that he left the main front door open and closed and locked the screen door, as was his usual practice.
When asked about the burns the deceased received when being bathed by him, the applicant responded “it was just like a serious honest mistake, like I had, I had checked the temperature of the water coming out of the tap, just not what was actually in the bottom. You know, it was just a rush. I was about to get picked up for work”. When asked what water he was checking, he said he checked the water coming out of the tap “’cause like I had the hot water going, I had hot water like just not on full bore but going on so I could get it hot while I took her nappy off ...”
At trial, the applicant was asked about the deceased’s bruises and said that he and MW were not sure what was causing them but thought that they were caused by the deceased rolling and bumping into the bedrails on her bed.
When asked about the text message, referring to him hurting the deceased’s neck, the applicant said that he did not know what it was in reference to and denied ever having hurt the deceased’s neck.
In relation to what had happened to the deceased when she was burned by hot water, the applicant said:

“When I’ve went in there I’ve smelt that TM had a dirty nappy. So I didn’t want her to be laying in that for hours ... she was as awake as well by that. So I got her and I wanted to change her nappy, so we went into the bathroom ... I told TM to start getting undressed while I ran the bath ... when the hot water come through, I turned on the cold to adjust it to a warm temperature for her and as I was doing that TM, she’d gotten undressed and yeah, she hopped in the bath yeah.” (T715)

He said the deceased half took her nappy off and pulled it off and put it on the floor. When she got into the bath she said ““It’s hot, TL” ... as she’s gone to sit down, I didn’t really think much of it. TM said that it was a lot, that the water was hot when we had her in baths, and it really - anyway, I didn’t think too much of it but at the same time of her sitting down is when I’ve picked her up and spun her around so her backside was facing the spout ...” The applicant said he had no knowledge of the deceased being burned until he received the text messages from MW about an hour later.
In relation to the evidence of April Sipple as to what she was told by the deceased that “TL hurt me”, the applicant denied having any knowledge of any bruise and said that he never did anything to her which might have caused that bruise.
In relation to the evidence by Lee-Ann W that the deceased said that TL had punched her, the applicant responded:

“Q: Do you recall who told you about that?
A: I think it was said in a conversation between Lee-Ann, MW and myself.
Q: And was it said in a serious way or how did it come across to you?
A: It come - well, no, it wasn’t in a serious way at all. They - I mean, they weren’t too worried about it, so I think they just threw it off as just TM saying something.
Q: And I mean did you ever do anything like that?
A: Absolutely not. But I think the result, if I did punch TM in the head, there'd be a serious injury that-mm.” (T721).

The applicant said that in the period leading up to Easter 2014, the deceased “wasn’t her usual self” and was clinging to her mother a lot. She was also vomiting a lot, probably as frequently as after every meal.
The applicant said that on the evening of 20 April, after MW and the deceased had returned from MW’s mother’s house, the deceased had dinner and he and MW took her to bed.
The applicant said that he and MW then went outside to the back patio so that he could have a cigarette and they could discuss dinner arrangements. The applicant recalled that they were outside discussing dinner for seven minutes while DM was inside watching TV on the lounge and the deceased was asleep in her room.
When MW and DM departed to go to KFC, the applicant said that he went back to watching TV on the couch and about three minutes later, he heard the doorknob from TM’s room. He got up and “noticed TM’s door was unlatched but it was still closed”. He opened the door and that was when he discovered TM standing. He asked her if she was okay and she did not raise her head to look at him so he moved closer and as he bent down to her level, he put his hand on her chest or her belly and asked if she was okay. That was when a chunk of vomit came up, or spit, and landed on his hand. The applicant said that he picked TM up and her bedroom was straight across from the toilet and he just walked straight into the toilet and hung her over it. She was making gagging noises and she did not “spew at all”. When the applicant asked if she was okay, she answered him but her voice was husky. When he asked her if she wanted a drink, she said no she wanted to go back to bed. The applicant then picked her up and put her back in her bed and left the room.
In evidence, the applicant denied hurting the deceased at any time on 20 April 2014 and denied knowing who did.
When asked if anyone had an opportunity to harm the deceased, he said MW, DM and himself. He agreed that in intercepted telephone calls with members of his family, he had said that DM did not harm the deceased.
In cross-examination, the following was put to the applicant:

“Q: And you told us yesterday that you had some names for TM. You told us about “baby” and “darling” and “TM”. Did you have any other names for her?
A. No not of that, no.
Q: Did you call her a “spoilt brat”?
A: Yes I have done yes.
Q: And did you not say those words to her face from time to time?
A: Yes I did on one occasion I think.
Q: You called her a “spoilt brat” because you believed that she was getting away with more than what she was entitled to get away with, didn’t you?
A: In one incident yes.
Q: And you believed, didn’t you, that MW was a little bit more lenient than what you were towards her behaviour, didn’t you.
A. Yeah in different ways, yeah.” (T753)

When cross-examined on the deceased’s burns that occurred in the bath, the applicant said that the deceased was bent over his forearm with her bottom facing the faucet of the tap while he washed her with a face cloth (T753-754). He agreed that the deceased was 93cms in height and so she did not need to be sitting down and he could have washed her bottom without holding her. The applicant was shown photographs 76 and 78 of Exhibit A and denied that the vanity in the bedroom would have made it difficult for him to hold her under the tap.
The applicant denied in cross-examination that he had put a plug in the bath but was unable to explain why he told the police that there was about two inches of water in the bathtub (T755).
In cross-examination, the applicant was asked why he gave a far more detailed account of putting the deceased to bed on the night of her death in his recorded interview with the police on 21 April 2014 than when he gave evidence before the jury about putting her to bed (T759-760). The applicant agreed that his evidence to police was “a lot different” to what he told the jury during his evidence in chief (T760).

54. So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender’s interests must be established beyond reasonable doubt.
55. The applicant sought to distinguish Baines on the basis that, despite the language used, no more was intended than use of other criminal conduct to remove any element of leniency, and on the basis that Baines itself was dealing with other charged conduct of which the offender was convicted. However, these submissions take no account of Fagan J’s reliance upon Einfeld, which involved similar but uncharged conduct. Nor is it clear in principle why a conviction could increase the seriousness of another offence, whereas uncharged conduct could not.

In the earlier decision of Baines v R [2016] NSWCCA 132 at [5], Basten JA had said:

The first ground of appeal alleged that the sentencing judge had taken into account “uncharged acts” as a factor increasing the objective seriousness of the offences. That was simply not so: what the judge said was that the applicant had embarked on a course of conduct, by reference to the 13 offences which were before her for sentence, involving conduct extending over some four years. It would, of course, be wrong in sentencing an offender for a specific offence to increase the penalty on account of other misconduct, whether separately charged or not. However, it is not an error to assess the seriousness of the specific offence by reference to surrounding circumstances, including other offending which is established beyond reasonable doubt.

These observations are at odds with the narrow approach for which senior counsel for the applicant contended. It was clearly open to her Honour to take the course that she did and to have regard to the applicant’s previous assaults on TM.
The Crown case at trial was that the applicant’s intention was to cause grievous bodily harm to TM, as opposed to kill her. There is no doubt that the state of mind in which an offence of murder is committed is directly relevant to a sentencing judge's assessment of the objective seriousness of the crime: Apps v R [2006] NSWCCA 290 per Hunt JA at [5]; per Simpson J (as her Honour then was) at [49]. There is also no doubt that as a general proposition, an intention to kill tends toward a greater level of objective seriousness: Apps at [49] per Simpson J. However, it does not follow that in a case where the intention relied upon by the Crown is confined to an intention to cause grievous bodily harm that the objective seriousness will fall below the mid-range: Versluys v R [2008] NSWCCA 76 at [32] per McClellan CJ at CL (Simpson and Price JJ agreeing).
Given the significant findings reached by the sentencing judge at [13]-[14], [18], [21] and [24], all of which were supported by the evidence, there was no error in her Honour’s assessment of the objective seriousness of the offending and no error in her Honour’s determination that the offending fell moderately above the mid-range of objective seriousness.

Ground 2 – The sentence was manifestly excessive

Submissions of the applicant

Senior counsel for the applicant advanced this ground on two separate bases, the first of which was that the sentencing judge had made a number of individual errors.
Firstly, it was submitted that her Honour had failed to take into account, as a mitigating factor, the applicant’s prior good character. Senior counsel pointed to the fact that the applicant had a good work history, and only a minor criminal history for summary offences, none of which involved offences of violence or had resulted in the imposition of a sentence of imprisonment. It was further submitted that there was a substantial volume of evidence placed before the sentencing judge, in the form of testimonials, which supported a conclusion that the applicant was a person of prior good character. Senior counsel for the applicant submitted that the sentencing judge had made no, or no identifiable, allowance for any of these matters, and that her Honour had paid no recognition, and given no weight, to the applicant's prior good character.
Secondly, it was submitted that the sentencing judge had erred by failing to make any allowance for the applicant's youth. It was submitted that apart from a passing reference to his age (at [25]), her Honour had not otherwise referred to the issue, from which it was clear that her Honour had not taken it into account as a mitigating factor. It was submitted that this conclusion was supported by the fact her Honour had made no reference to the principles governing the sentencing of young offenders, which highlight the necessity to place particular emphasis on an offender’s rehabilitation.
Thirdly, it was submitted that the sentencing judge had failed to make any allowance for the fact that the applicant was likely to serve all or part of his sentence in some form of protective custody. It was submitted that although the sentencing judge had acknowledged that this would be the case, such acknowledgement had not been reflected in any reduction of the sentence which was imposed.
Fourthly, it was submitted that her Honour had failed to make any assessment as to the likelihood of the applicant reoffending. Senior counsel submitted that the applicant was entitled to a finding in his favour that he was unlikely to reoffend, based on his limited criminal record, his lack of any history of violent offending, and his general good character.
The second basis upon which this ground was advanced was that even if no specific error was found, the sentencing judge had imposed a sentence which was nevertheless manifestly excessive. In advancing this submission, senior counsel for the applicant again emphasised that the Crown case was based upon an intention by the applicant to cause grievous bodily harm, as opposed to an intention to kill. He submitted that whilst there may be cases where the circumstances surrounding the commission of the offence of murder based upon an intention to cause grievous bodily harm could elevate the offending to above the mid-range level, the present was not such a case.
Further, senior counsel submitted the sentence was manifestly excessive by reference to sentences imposed in other cases involving the murder of children. It was submitted that the imposition of a sentence of this severity reflected the fact that latent error had affected the exercise of the sentencing discretion, leading to the imposition of a sentence which was not merely stern, but manifestly excessive.

Submissions of the Crown

To the extent that the applicant asserted that his prior good character was not properly taken into account by the sentencing judge, the Crown emphasised the fact that her Honour made reference to, and obviously took into account, the evidence of the applicant’s character. However, the Crown pointed out that her Honour had also found that the applicant had previously assaulted TM. It was submitted that in these circumstances there was no error on the part of the sentencing judge in the manner in which she approached the issue of the applicant’s character.
In terms of the applicant’s age, the Crown pointed to the fact that at the time of the offending the applicant was aged 23, in full-time employment, and in a relationship of loco parentis to TM. It was submitted that in all of these circumstances, the applicant was not properly regarded as a young offender for the purposes of sentencing.
In terms of the conditions under which the applicant will serve his sentence, the Crown submitted that there was little evidence before the sentencing judge which went to that issue, and no evidence that any condition(s) under which the applicant would serve his sentence would be onerous when compared with the conditions to which other inmates were subject.
As to the asserted absence of any assessment of the applicant's likelihood of reoffending, the Crown pointed out that although such a submission was made on sentence, there was no evidence advanced in support of it. The Crown submitted that in those circumstances, the sentencing judge had been left to deal with the matter in that context, and that her Honour had adequately done so in assessing the applicant’s prospects of rehabilitation.
As to the second basis upon which this ground was advanced, the Crown submitted that the applicant's reliance on sentences imposed in other cases was to be approached bearing in mind the limitations which govern the use of such material. In this regard, the Crown pointed to the fact that a standard non-parole period of 25 years’ imprisonment was applicable, and submitted that in evaluating any of the cases upon which the applicant relied, it was necessary to bear in mind that a number of them involved sentences imposed when a standard non-parole period of 20 years’ imprisonment was applicable. The Crown submitted that in any event, an analysis of the decisions relied upon by the applicant did not support a conclusion that the sentence imposed was manifestly excessive.
The Crown further submitted that the sentence imposed on the applicant was entirely consistent with the findings of the sentencing judge as to the objective seriousness of the offending, and her Honour’s assessment of the applicant’s subjective case.

CONSIDERATION

I turn firstly to the complaints of specific error advanced by senior counsel for the applicant, the first of which was that her Honour failed to take into account, as a mitigating factor, the applicant’s prior good character.
In the course of her judgment, her Honour said (at [25]):

The prisoner is presently 27 years of age. He has a minor summary criminal history consisting of driving and property offences, which qualifies as a mitigating factor. The submission on sentence that the offence is out of character is accepted to the extent that there is nothing in the prisoner’s history which suggests a propensity to violence. However, the findings I have made in relation to the tendency evidence do not allow me to conclude that the assault on 20 April 2014 was an isolated event.

Her Honour continued (at [26]):

… It is accepted that he enjoys the unqualified support of his family, as the 16 references from a number of family members attest. They describe the prisoner as a thoughtful, caring and attentive son, brother, and uncle, yet those traits are inconsistent with his treatment of TM.

It is apparent from these passages that her Honour:

took into account, as a mitigating factor, the absence of any relevant criminal history;

found that the offending was out of character, in the sense that there was nothing in the applicant's history which demonstrated a propensity towards violence;

specifically took into account the testimonials;

found that in light of the other incidents of violence to TM for which the applicant was responsible, the offending was not an isolated event.

In my view, it is abundantly clear from her Honour’s findings that she dealt with this aspect of the matter appropriately. In particular, the suggestion that her Honour did not recognise, and made no allowance for, the evidence of the applicant’s prior good character, is untenable given her express reference to a number of matters which had a direct bearing on that issue, and which her Honour obviously took into account.
As to the asserted failure on the part of the sentencing judge to take into account the applicant's youth, it must be emphasised that the applicant was 23 years of age at the date of the offending, and 27 years of age at the date of sentence. The principles relating to the sentencing of young offenders are well established (see KT v R [2008] NSWCCA 51 at [22]-[26]; LS v R [2020] NSWCCA 120 at [96]) and include the following:

considerations of general deterrence and principles of retribution are, in most cases of sentencing young offenders, of less significance than they would be when sentencing an adult for the same offence;

in recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;

the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law and accordingly, allowance will be made for an offender's youth and not just their biological age;

where the immaturity of an offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult;

although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders and there remains a significant public interest in deterring anti-social conduct;

the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or a crime of considerable gravity; and

the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A child offender of almost 18 years of age cannot expect to be treated substantially differently from an offender who is just over 18 years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth.

I am not satisfied that the principles applicable to the sentencing of youthful offenders had any role to play in the present case. This is so for a number of reasons.
Firstly, in circumstances where the applicant was aged 23 at the time of the offending, and 27 at the time of sentence, there was no evidence before the sentencing judge that immaturity on the part of the applicant played any role in the commission of the offence.
Secondly, the principles which govern the sentencing of youthful offenders may be moderated when the offender has conducted himself or herself in the way that an adult might, and has committed a crime of violence or a crime of considerable gravity. That is precisely what occurred in the present case.
Thirdly, the weight to be given to youth diminishes the closer the offender approaches the age of maturity, such that the younger the offender, the greater the weight to be afforded to his or her youth. It only needs to be said that in the present case that the applicant was substantially older than 18 years of age.
It follows that in my view, her Honour did not err in failing to make an allowance for the applicant’s youth. The circumstances of this case did not call for the application of the principles I have set out.
As to the complaint that the sentencing judge failed to make allowance for the fact that the applicant was likely to serve all or part of his sentence in some form of protective custody, exhibit 2 on sentence was an affidavit of the applicant's solicitor, Peter Mann. Mr Mann deposed to the fact that he had received instructions from the applicant that he had been housed in protection for the entirety of his time in custody, and that he was in fear of his life, as a consequence of which he had been placed in segregation on the basis of a risk assessment which had determined that there was a real and immediate threat to his safety. The applicant also instructed Mr Mann that he proposed to make an application to be housed in a “protection non-association area" upon being sentenced.
Her Honour said the following (at [27]):

It is also accepted that the prisoner is likely to serve part or all of his sentence in some form of protective custody, whether that is at his own request or by way of his custodial management. However, it is by no means clear what the nature of his custodial conditions will be. The extent of the evidence before me on this issue derives from an affidavit from the prisoner’s solicitor which sets out the prisoner’s understanding of the conditions attaching to his custody as a Protection Non Association inmate. The actual custodial conditions will be a function of his post sentence classification and the prison where he is directed to serve his sentence.

The affidavit of Mr Mann was based upon the applicant’s instructions and the evidence did not extend beyond the matters I have outlined. In particular, there was no evidence before the sentencing judge as to:

the precise nature and extent of the applicant’s conditions of custody;

the extent to which those conditions differed from those conditions to which other inmates were subject; and

whether the present conditions would continue for the duration of the applicant’s sentence.

If an offender wishes to receive some mitigation of sentence by reason of the conditions of imprisonment, it is for the offender to lead evidence of what those conditions entail. A bald assertion that conditions are more onerous is not sufficient: Clarkson v R (2007) 209 FLR 387; [2009] NSWCCA 70 at [273]; R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 at [179]-[181]. It is clear that her Honour specifically turned her mind to this issue and concluded that there was a paucity of evidence as to the nature of the applicant's custodial conditions. That conclusion was entirely open.
As to the complaint that her Honour failed to make an assessment as to the likelihood of the applicant reoffending, s 21A(3) Crimes (Sentencing Procedure) Act 1999 (NSW) mandates that a number of mitigating factors must be taken into account in determining the appropriate sentence for an offence to the extent to which they are applicable. They include:

that the offender is unlikely to reoffend – s 21A(3)(g); and

that the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise – s 21A(3)(h).

Her Honour addressed the applicant's prospects of rehabilitation as follows (at [26]):

Whether his prospects of rehabilitation are promising is doubtful, certainly as long as he refuses to acknowledge his guilt in the face of a very strong, albeit circumstantial Crown case. It is accepted that he enjoys the unqualified support of his family, as the 16 references from a number of family members attest. They describe the prisoner as a thoughtful, caring and attentive son, brother, and uncle, yet those traits are inconsistent with his treatment of TM.

The issues of an offender’s prospects of rehabilitation and likelihood of re-offending are separate and distinct. The necessity to address both was emphasised in Zuffo v R [2017] NSWCCA 187 where Price J (with whom Hoeben CJ at CL and Adamson J agreed) said the following (at [47]):

[47] Although commonly linked, the concepts are not the same. In R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225, McClellan CJ at CL and Johnson J drew a distinction between the unlikelihood of re-offending and rehabilitation. Their Honours said at [118]–[121]:
“[118] Inherent in Mr Duff's account of punishment is the assumption that rehabilitation addresses the moral sensibilities of the offender, not just his or her propensity to reoffend. Indeed, were it otherwise, there would be little to distinguish rehabilitation from specific deterrence, which is separately provided for by s.3A(b) Sentencing Procedure Act. To the extent that moral self-correction and renunciation of one's own wrongdoing are captured by the concept of rehabilitation for which s.3A(d) of the Act provides, it can fairly be said that the present respondents are in need of rehabilitation, notwithstanding that they are unlikely to reoffend.

…
[120] Although it is common for judges, when considering the subjective characteristics of an offender, to evaluate the prospects of the person reoffending and to express an opinion as to whether the person is unlikely to reoffend, it could never be said that a person who has once offended would never reoffend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding reoffending.
[121] A finding that an offender is not likely to reoffend may often be made not only because of expressions of remorse, but because the fact that the offender has been caught, convicted and punished (which may include extra-curial punishment) will operate to deter the offender from future wrongdoing. Deterrence will operate in respect of an offender even though the offender may not have restructured his or her thinking so that they thereafter consciously determine to re-establish themselves as a positive member of society.”

In the present case, the sentencing judge did not refer to s 21A(3)(g) and did not otherwise make any reference to, or undertake an assessment of, the applicant’s likelihood of reoffending. Although the Crown sought to argue before this Court that her Honour had addressed that issue when assessing the applicant’s prospects of rehabilitation, the Crown ultimately accepted in oral argument that the two considerations were separate.
On a fair reading of her Honour’s judgment, no consideration was given to the applicant’s likelihood of reoffending. Error has therefore been established, and this Court must exercise the sentencing discretion afresh. In these circumstances, it is not necessary to separately consider the complaint of manifest excess, but in the exercise of the sentencing discretion I have taken into account the submissions made by the parties in that respect.

RE-SENTENCE

I already made reference to the findings made by her Honour as to the deliberate course of conduct, constituted by a series of intentional assaults upon TM, in which the applicant engaged in the period leading up to TM's murder. For the reasons I have explained, the sentencing judge did not err in her treatment of those factors and in my view, they are clearly relevant in determining an appropriate sentence.
Leaving aside the applicant’s earlier treatment of TM, the blow which caused TM’s death was sufficient to tear TM’s small intestine from the abdominal wall, and to result in a 12cm tear in the mesentry. The force with which such blow must have been struck will be self-evident from those injuries. That it was struck upon a completely defenceless child simply highlights the gravity of the offending.
Moreover, the offending occurred against a background of TM having been left in the applicant’s care. As a consequence, the applicant was in a clear position of trust. That is clearly an aggravating factor. The fact that he had caused significant injury to TM was obviously immediately apparent to him, and caused him to attempt to deflect MW from becoming aware of TM’s condition.
It is not necessary to place the offending at a particular level of some notional scale, by reference to which a determination is then made as to its level of objective seriousness. On any view of the evidence, the applicant’s conduct which led to the death of TM constituted a brutal, callous and inhumane assault on a defenceless child, in circumstances where the person committing the assault had been placed in a position of trust, and where the offence was committed in TM’s home, where she was entitled to feel safe and secure. Any further observation about the objective seriousness of such offending would be superfluous. It is necessarily deserving of severe punishment.
In terms of the applicant’s subjective case, I have already concluded that there is no room for the application of the principles governing the sentencing of youthful offenders. The applicant has a minor criminal history consisting of driving and summary offences, none of which involved violence. In addition, a series of testimonials tendered in the applicant’s case before the sentencing judge spoke of the applicant’s loving and respectful demeanour, and the trust in which he is held by other members of his family. The applicant is entitled to the benefit of the fact that he has no significant history of prior offending and was a person of otherwise good character. However in my view, the weight that can be attached to that circumstance is limited given the evidence of his treatment of TM in the period leading up to the murder.
It is difficult to make a determination of the applicant’s prospects of rehabilitation. The testimonials to which I have already referred indicate that he enjoys the unqualified support of his family. Assuming that such support remains, it will assist the applicant’s rehabilitation on his release. At the same time however, the applicant apparently continues to refuse to acknowledge his guilt. In these circumstances, I assess his prospects of rehabilitation as guarded.
In terms of the applicant's likelihood of reoffending, that is again a difficult determination to make. However, in the absence of any history of violent offending, and in circumstances where the evidence of violence was confined to that perpetrated on TM, I am prepared to conclude that he is unlikely to reoffend, at least not in the same way. There is no basis for a finding of special circumstances.
Senior counsel for the applicant referred the Court to a number of sentences imposed in previous cases involving the murder of children, and which were said to support a conclusion that the sentence imposed on the applicant was manifestly excessive. Before considering those cases, it is necessary to make some preliminary observations as to how that material should be addressed.
In Moodie v R [2020] NSWCCA 160 Bell P (with whom Davies and N Adams JJ agreed) addressed the question of the use to which sentences imposed in cases of like offending can be put. In doing so, his Honour disagreed with the views expressed in respect of that issue by Wilson J (with whom R A Hulme and Hamill JJ agreed) in FL v R [2020] NSWCCA 114 at [77]-[79]. His Honour concluded (at [83]) that the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing.
Regardless of what view might be taken in relation to that issue, two propositions regarding the use, for comparative purposes, of sentences imposed in cases of like offending are incontrovertible. The first, is that consistency in sentencing requires consistency in the application of relevant legal principles, not mathematical equivalence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]. The second, is that whilst sentences imposed in cases of like offending may establish a range of sentences which have been imposed in the past, they do not establish that such range is the correct range, nor do they establish the upper and lower limits are the correct upper and lower limits of any such range: Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] per Simpson J (as her Honour then was).
Further, a number of the cases to which the Court was referred in the present case were determined prior to the increase of the standard non-parole period applicable to this offending from 20 years’ imprisonment to 25 years’ imprisonment. I have had no regard to the outcomes in any of those earlier cases.
In R v Dennis [2009] NSWSC 1357, the offender had been found guilty by a jury of the murder of the 23 month old son of his girlfriend whilst in his care. The offender had hit the child's head with a blunt instrument, and/or had forced his head against a wall, in offending which was found to have been spontaneous. The offender was 19 years of age at the time. He had come from an indigenous family and his mother had died when he was 15 years of age. The sentencing judge found that the offender was “a young man of exemplary character" whom he did not think would offend again (at [14]). Intelligence testing placed the offender in the bottom 7% of the population and with an impaired cognitive ability (at [15]).
The sentencing judge concluded (at [24]) that there were strong subjective features, including the offender’s prior good character, and what was described as a “remarkable work history". The sentencing judge also placed emphasis upon the offender's young age, his good prospects of rehabilitation, and the fact that he would have to serve a substantial part of the sentence on protection. In all these circumstances the offender was sentenced to imprisonment for 26 years and 8 months, with a non-parole period of 20 years.
It will be evident that the offender in that case had the benefit of a number of significant subjective factors upon which the present applicant is unable to rely. Moreover, there was no evidence of any mistreatment of the young child by the offender other than that which gave rise to the charge. These are all important factors which distinguish the case from that of the applicant.
In R v Pfitzner [2009] NSWSC 1267 the offender pleaded guilty to the murder of her two year old son. The sentencing judge concluded that the young child had died of asphyxiation as a consequence of the act(s) of the offender. The offender was the subject of a bond to be of good behaviour for an offence of assault at the time of the offending which the sentencing judge regarded as an aggravating factor (at [43]). His Honour also took into account that the offender's record included offences of violence such as assaulting and resisting police officers. The sentencing judge concluded (at [83]) that the offender committed the offence in circumstances where she “gave in to her anger", following which she maintained a false account of the child's whereabouts for the following week, a circumstance described by the sentencing judge as “calculated and callous” (at [83]).
The sentencing judge was not satisfied that the offender was operating under any adverse mental condition that reduced her moral culpability (at [90]) and concluded that the offending had occurred as part of a course of mistreatment of the young child that had extended over a period of some weeks. In these circumstances the sentencing judge found the offending was not an aberration although it was obviously out of all proportion to anything which had occurred before (at [91]). The sentencing judge found that the offending was slightly below the middle of the range (at [93]). His Honour was not persuaded that the offender was remorseful (at [98]), nor was he prepared to find that the offender was unlikely to reoffend or that she had good prospects of rehabilitation (at [100]).
Allowing a discount of 15% to reflect the plea of guilty, the offender was sentenced to a total of 25 years and 6 months’ imprisonment with a non-parole period of 19 years and 2 months’ imprisonment. His Honour noted that without the plea of guilty the sentence would have been one of 30 years’ imprisonment (at [103]). An appeal asserting that the sentence was manifestly excessive was dismissed by this Court: Pfitzner v R [2010] NSWCCA 314. Unlike the applicant’s case, there was no evidence of any other violence towards the victim by the offender. The matter had also proceeded by way of a plea of guilty.
In R v Abrahams [2013] NSWSC 952 the offender pleaded guilty to the murder of her 6 year old daughter. The sentencing judge was not satisfied that earlier (non-lethal) injuries to the deceased had been inflicted by the offender. His Honour was also not satisfied that the offender formed an intention to kill the deceased (at [57]). The offender's criminal history was limited to a prior conviction for an offence involving biting the deceased some years prior to her death (at [76]). His Honour found (at [77]) that it was unlikely that the offender would reoffend and allowed a 10% discount to reflect the utilitarian value of her plea of guilty.
Subjectively, there was evidence that the offender was found to function in the borderline disabled range (at [91]), that she had been exposed to serious domestic violence (at [92]), and had a demonstrated intellectual disability which, limited her in terms of judgment, as well as in terms of her learning and coping skills (at [103]). The sentencing judge also found (at [107]) that the offender's formative years were characterised by (inter alia) domestic violence, following which the offender was made a ward of the State at 11 years of age (at [109]). The sentencing judge concluded that there was no need for specific deterrence, that the offender was never likely to reoffend, and was likely to be rehabilitated. He did not consider that the offender was a good vehicle for general deterrence in light of the evidence to which I have referred (at [128]).
In all those circumstances, and taking into account an additional offence arising from the offender's interference with the body of the deceased, the offender was sentenced to imprisonment for 22 years and 6 months with a non-parole period of 16 years. Leaving aside the plea of guilty, it is evident that there were a series of subjective circumstances of significance in that case, none of which have a role to play in the case of the applicant.
In R v JK [2018] NSWSC 250 the sentencing judge found (at [9]) that for a period of one week leading up to the death of his 12 year old step daughter, the offender had engaged in repeatedly assaulting her. The offender ultimately murdered her by the application of multiple instances of blunt force trauma to the head, torso and limbs (at [14]). The sentencing judge described the circumstances of the murder as the culmination of a “consistent pattern of cruel and barbaric abuse of a helpless child” (at [21]).
The offender did not have a substantial criminal record, although the sentencing judge concluded that this was deserving of little weight in light of the evidence of violence towards the victim in the period leading up to her death (at [29]). His Honour found that the offender was remorseful and had insight into his offending, and that this provided some hope for his rehabilitation (at [42]). There was no evidence that the offender was suffering from any major psychiatric disturbance although there was evidence of depression and anxiety arising from his adolescent life (at [43]). A sentence of 37 years and 6 months imprisonment was imposed, with a non-parole period of 28 years (at [54]). In some respects, this case bears similarities to the applicant’s offending, particularly in terms of prior violence exhibited towards the victim.
The Court was also referred to R v LN; R v AW [2017] NSWSC 1387. In those cases, sentences substantially greater than that imposed on the applicant were imposed. They provide limited guidance in all of the circumstances.
Both the maximum penalty of life imprisonment, and the standard non-parole of 25 years imprisonment, represent important legislative guideposts in determining an appropriate sentence in this case. For the reasons that I have already expressed, the offending was extremely serious and was committed against a background of gratuitous violence perpetrated by the applicant on a young child. There is little in the applicant’s subjective case which mitigates his offending.
I have had regard to the sentences imposed in the other cases to which I have referred. The guidance they provide is limited. For reasons I have pointed out the majority of them are generally distinguishable on one basis or another.
In all of the circumstances, and in the fresh exercise of the sentencing discretion, I have come to the view that a sentence of 36 years imprisonment, with a non-parole period of 27 years imprisonment is appropriate. In those circumstances, I propose the following orders in respect of the application for leave to appeal against sentence:

Leave to appeal against sentence granted.

Appeal dismissed.

**********

I certify that this and the 115 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law and of the Court.

Morna Lynch

Associate

Date: 19 October 2020

Decision last updated: 20 October 2020

Medium Neutral Citation:	TL v R [2020] NSWCCA 265
Hearing dates:	8 July 2020
Decision date:	19 October 2020
Before:	Hoeben CJ at CL at [1]; Adamson J at [303]; Bellew J at [319]
Decision:	(1) Leave is granted to extend the time within which the application for leave to appeal against conviction can be brought. (2) Leave to appeal against conviction is granted. (3) The appeal against conviction is dismissed. (4) Leave to appeal against sentence granted. (5) The appeal against sentence is dismissed.
Catchwords:	CRIMINAL LAW – CONVICTION APPEAL – offence of murder – victim a two year old child – identity of offender in issue – whether hearsay evidence wrongly admitted – whether tendency evidence wrongly admitted – whether direction pursuant to s 165 of the Evidence Act 1995 (NSW) should have been given to the jury – appeal against conviction dismissed – SENTENCE APPEAL – whether level of objective seriousness of offending properly assessed – whether sentence was manifestly excessive – no lesser sentence warranted in law – appeal against sentence dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 18(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A Criminal Appeal Act 1912 (NSW) – ss 5(1)(b), 6(1), 10(1)(b) Criminal Appeal Rules 1970 (NSW) – r 4 Evidence Act 1995 (NSW) – ss 65, 66, 97, 98, 101, 137, 165
Cases Cited:	Apps v R [2006] NSWCCA 290 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 ARS v R [2011] NSWCCA 266 Baines v R [2016] NSWCCA 132 Bin Sulaeman v R [2013] NSWCCA 283 Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26 Clarkson v R (2007) 209 FLR 387; [2009] NSWCCA 70 Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Donohoe v R [2012] NSWCCA 176 Ellis v R (2003) 58 NSWLR 700; [2003] NSWCCA 319 FL v R [2020] NSWCCA 114 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hofer v R [2019] NSWCCA 244 Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20 Ilievski v R; Nolan v R [2018] NSWCCA 164 IMM v The Queen (2016) 259 CLR 300; [2016] HCA 14 Kanaan and Ors v Regina [2006] NSWCCA 109 LN v R [2020] NSWCCA 131 LS v R [2020] NSWCCA 120 KT v R [2008] NSWCCA 51 McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 (Mason J); [1986] HCA 40 Moodie v R [2020] NSWCCA 160 O’Keefe v R; R v O’Keefe [2009] NSWCCA 121 Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 Pfitzner v R [2010] NSWCCA 314 Poniris v R [2014] NSWCCA 100 R v Abrahams [2013] NSWSC 952 R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 R v Dennis [2009] NSWSC 1357 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 R v JK [2018] NSWSC 250 R v LN; R v AW [2017] NSWSC 1387 R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 R v Pfitzner[2009] NSWSC 1267 R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 R v Straffen (1952) 2 QB 911 R v TL [2017] NSWSC 426 R v TL [2019] NSWSC 715 R v Warren Ross (No 2) [2013] NSWSC 2042 Shepherd v R [2011] NSWCCA 245 Sutton v R (1984) 152 CLR 528; [1984] HCA 5 Taleb v R [2015] NSWCCA 105 The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40 Vagg v R [2020] NSWCCA 134 Versluys v R [2008] NSWCCA 76 Vickers v R [2006] NSWCCA 60 Williams v R (2000) 119 A Crim R 490; [2000] FCA 18 1868 Zuffo v R [2017] NSWCCA 187
Category:	Principal judgment
Parties:	TL – Applicant Regina – Respondent Crown
Representation:	Counsel: M Ramage QC/T Liu – Applicant E Balodis – Respondent Crown Solicitors: P E Green – Applicant Solicitor for Public Prosecutions
File Number(s):	2014/00131951
Publication restriction:	Yes
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Date of Decision: 5 June 2017 Before: Latham J File Number(s): 2014/00131951