TO v R

[2017] NSWCCA 12

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	TO v R [2017] NSWCCA 12
Hearing dates:	21 September 2016
Date of orders:	20 February 2017
Decision date:	20 February 2017
Before:	Price J at [1]; Button J at [241]; Fagan J at [244]
Decision:	(1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted. (3) Sentences imposed by Wells DCJ on 18 August 2015 are set aside. (4) In lieu thereof the appellant is sentenced as follows: (i) On count 1 to imprisonment for a non-parole period of 9 years commencing 15 June 2015 and to expire on 14 June 2024 and a balance of term of 3 years to commence 15 June 2024 and to expire 14 June 2027. (ii) On count 2 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019. (iii) On count 3 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.  The appellant will be eligible to be released to parole on 14 June 2024.
Catchwords:	CRIMINAL LAW – appeal against conviction – whether trial judge’s refusal to discharge the jury occasioned a miscarriage of justice – whether a miscarriage was occasioned by appellant’s trial counsel’s failure to seek a forensic disadvantage direction – whether trial judge could give a forensic disadvantage direction on her own volition – whether a forensic disadvantage direction was required – whether verdicts of guilty unreasonable or unable to be supported – whether the Court should view the JIRT interviews and the appellant’s ERISP   CRIMINAL LAW – sentence appeal – whether Muldrock error – appellant resentenced
Legislation Cited:	Crimes Act 1900 (NSW), ss 66A, 66B Crimes Act 1958 (Vic), s 61 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21, 54A–54D, Pt 4, Div 1A Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules, r 4 Criminal Code Act (Cth) s 668E Evidence Act 1995 (NSW), ss 9, 165, 165B Evidence Act 2008 (Vic), ss 61, 165B
Cases Cited:	CH v R [2014] NSWCCA 119 Crampton v The Queen (2000) 206 CLR 161 Crofts v R (1996) 186 CLR 427; [1996] HCA 22 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Evans v R (2007) 235 CLR 521; [2007] HCA 59 GN v R [2012] NSWCCA 96 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Greensill v R (2012) 37 VR 257; [2012] VSCA 306 Groundstroem v R [2013] NSWCCA 237 Hili v the Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Ingham v R [2014] NSWCCA 123 Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 Jones v R [2012] NSWCCA 262 KB v R [2015] NSWCCA 220 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Libke v R (2007) 230 CLR 559; [2007] HCA 30 Longman v R (1989) 168 CLR 79; [1989] HCA 60 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 M v The Queen [1994] HCA 63; 181 CLR 487 MLP v R [2014] NSWCCA 183 R v AJP [2004] NSWCCA 434 R v Baartman [2000] NSWCCA 298 R v Baden-Clay [2016] HCA 35 R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 R v Hunt [2003] NSWCCA 301 R v Johnston (1998) 45 NSWLR 362 R v Muldrock (2011) 244 CLR 120; [2011] HCA 39 R v Stewart (2001) 52 NSWLR 301 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 RJA v R [2014] NWCCA 89 RR v R [2011] NSWCCA 235 Sio v R [2015] NSWCCA 42 SKA v The Queen [2011] HCA 13; 243 CLR 400 Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 Wong v The Queen (2007) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	TO (Appellant) Regina (Respondent)
Representation:	Counsel: D Barrow (Appellant) E Balodis (Respondent)   Solicitors: Giddy and Crittenden (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/00117537
Publication restriction:	Non publication of any information or material that may lead to the identification of the complainant or witness: Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Crimes Act 1900 (NSW), s 578A.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 August 2015 Before: Wells SC DCJ File Number(s): 2014/00117537

Judgment

1. PRICE J: On 15 June 2015, after a trial by jury before Wells SC DCJ (“the judge”), TO (“the appellant”) was found guilty of three offences, namely: one count of aggravated sexual intercourse with a person under the age of ten, the circumstance of aggravation being that the child was under the appellant’s authority, contrary to s 66A(2) of the Crimes Act 1900 (NSW) (“Crimes Act”); one count of attempting to have sexual intercourse with a child under the age of ten contrary to s 66B of the Crimes Act; and one count of assaulting a child under the age of ten with intent to have sexual intercourse contrary to s 66B of the Crimes Act.

2. The Crown case was that the victim of all of the offences was ZK (“the complainant”), the 9 year old daughter of the appellant’s former partner. The complainant, her mother, the appellant and two of his three sons lived together in a house in Wilsons Creek.

3. It was the Crown case that between 19 June 2012 and 21 June 2012, whilst the complainant was in the shower, the appellant inserted his penis into her anus (count 1) and attempted to put his penis into the complainant’s mouth (count 2). Later on the same day, in the appellant’s bedroom, the appellant pulled the complainant’s pants down and tried to have vaginal intercourse with her (count 3).

4. The appellant did not give evidence during the trial, but a recording of the interview when he attended Ballina Police Station on 17 April 2014 was played to the jury. During the interview, the appellant denied all allegations that he had sexually assaulted the complainant.

5. On 18 August 2015, the appellant was sentenced to 16 years imprisonment with a non-parole period of 12 years for count 1. For counts 2 and 3, concurrent fixed terms of 8 years imprisonment were imposed. The sentence commenced on 15 June 2015 and will expire on 14 June 2031. The appellant is eligible for release to parole on 14 June 2027.

6. The maximum penalty for an offence contrary to s 66A(2) of the Crimes Act is imprisonment for life with a standard non-parole period of 15 years imprisonment. As to an offence contrary to s 66B of the Crimes Act, the maximum penalty is imprisonment for 25 years. There is no standard non-parole period.

7. The appellant appeals against his conviction and sentence.

The grounds of appeal

8. The appellant appeals against his convictions on the following grounds:

“Ground 1: Her Honour’s refusal to discharge the jury as a consequence of aspects of the Crown Prosecutor’s address to the jury occasioned a miscarriage of justice.

Ground 2: A miscarriage of justice was occasioned by trial counsel’s failure to seek a direction pursuant to s165B of the Evidence Act 1995 regarding the forensic disadvantage suffered by the appellant by reason of the delay in complaint.

Ground 3: The verdicts are unreasonable and cannot be supported by the evidence.”

9. The appellant appeals against his sentence on the following grounds:

“Ground 4: Her Honour erred in the manner in which she applied Part 4, Division 1A of the Crimes (Sentencing Procedure) Act when sentencing the appellant

Ground 5: The sentences imposed upon the appellant are manifestly excessive.”

The trial

10. The trial commenced on 9 June 2015 and the jury retired to consider its verdict on 12 June 2015. As there is an unreasonable verdict ground of appeal, it is necessary to refer to the evidence in the trial at some length.

11. On the second day of the trial, the following agreed facts were read to the jury after being marked as Exhibit 1:

“On 12 July 2014 at Tweed Heads Hospital [ZK] (the complainant) underwent an anal examination conducted by Consultant Paediatrician Doctor Gregory Carmen.

The examination findings neither confirms nor denies the alleged anal sexual assault the subject of Count 1 on the indictment.

[The appellant] and [MS] signed a twelve month lease for the property at [XXX] Road on 15 November 2010.

A further lease on the same property, for a period of three months, was signed by [the appellant] and [MS]. The period covered was from 4 April 2012 until 4 July 2012.

In 2012 [the complainant] and [OJ] were enrolled at Durrumbul Public School. [The complainant] was in grade 4 and [OJ] was in grade 3.

School records show that [the complainant] was marked absent and sick for the period 19-21 June 2012. [OJ] was marked absent and sick for 19 and 20 June 2012.

The period 19-21 June occurred during Term 2 of the school year.”

12. On the third day of the trial, the following agreed facts were read to the jury after being marked as Exhibit 3:

“The Durrumbul State Primary School athletics carnival was scheduled to take place on Friday 15 June 2012. Due to wet weather it was cancelled. It was rescheduled to take place on Friday 22 June 2012.

[ZK] (the complainant) was marked absent from school on 10 May 2012. [OJ] had no absences from school in May 2012.

On 23 December 2013 [MS] spoke to Detective Sheehan about certain things she said that her daughter [the complainant] had told her concerning [the appellant].

Detective Sheehan recorded the following information: ‘When she [the complainant] was showering, the POI [the accused] came into the bathroom, undressed himself and got into the shower with her. He continually tried to have the [complainant] sit down on his lap and continually tried to pull her down onto his lap (no further detail disclosed at this stage)’. Detective Sheehan then recorded: ‘During this time the POI digitally penetrated the anus of the victim his [sic] one of his fingers’.

The shower cubicle at [XXX] Road has been measured. It has a width of 97cm and a length of 96cm.”

13. The complainant was interviewed by Senior Constable Hilda Craigie on 15 January 2014 (“the first interview”) and on 10 April 2014 (“the second interview”). Both interviews were played to the Court.

14. During the first interview, the complainant described the events that became counts 1 and 3. It was not until the second interview that the events that became count 2 were discussed.

15. The following factual summary has been extracted from summaries of the trial prepared by both the Crown and appellant, and the trial transcript.

A summary of the first interview

16. The complainant said there was a day when she was 9 years old, turning 10, when she was at home with chickenpox and the appellant “tried to like have sex” with her. She was asked if she could explain what she meant by tried to have “sex” with her. The complainant said there were “little bits at first” when her mother was not around, but what she meant was, “he tried to like put his penis inside me”. That happened twice on the same day; once when she was in the shower and the other time when she was in the bedroom.

17. The complainant first described an earlier occasion when, shortly after having a shower, she went to her bedroom to get changed into her pyjamas. Just after she took her towel off, the appellant walked into her bedroom and said, “Woops sorry I didn’t know you were there”. When she left the bathroom, the complainant walked past the appellant while he was sitting on the edge of the couch. The complainant asked what he was doing, and the appellant said he was just watching TV, but she noticed that the TV was not on. She later felt that he was sitting there just waiting for her to leave the shower and go into her room. The complainant had difficulty working out if that incident occurred in September or October 2010, or in 2011. She was “pretty sure” it was April or May 2010 because she thought she was still 9 years old in 2010.

18. The complainant described the first time the appellant tried to “have sex” with her by putting his penis inside her:

“A   It, it was on a Tuesday 'cause it was the day that the talent shows auditions, at talent show auditions were for and the day before the district cross, district athletics carnival. And I got into that so I was really excited and then one of [the appellant’s] boys had the chicken pox and then I woke up and I was really itchy. And then he was still up and then he said, and I had a little spot here and on my stomach and he said, It's the chicken pox, so I had the day off school and I just came out in lots of spots. And I was having a shower before I was gunna put some cream on the spots and I was, I was having the shower, I was in the shower and he came into the shower and he started to take off his clothes and I didn't know what he was doing. And I said, Can I have a shower in peace, he's like, Nuh it's all right. I'm like, but I said, It's not really all right because I want to have a shower in peace, and because he, he hadn't seen me with no clothes on before. And besides the time that he walked in on me which happened twice but the first time I know it was accident because that's when I was sharing a bedroom with the two boys. They were coming in and [OA] had just had a shower, the younger one and he was coming to help him get, get dressed and that, I knew that was by accident. But then after that he, he got, took all his clothes off and he sat down on the floor in the shower and he said, Just sit on my knee, and he was holding his penis here (DEMONSTRATES) trying to get me to sit on, I said, No I'm not doing that. And I tried to get out of the shower but he didn't, he was just like, No it's all right, and I said, No it's not I don't really feel comfortable in the shower with you. And then he pushed me down onto him but, not lucky but, I'm glad it went up my, it went up my butt not up, up my vagina - - -

Q89   O.K.

A   - - - and that hurt and I started to cry because it hurt. And I grabbed his penis and took it off and ran out of the shower, he's like, Ow what did you do that for, and I said, Isn't it pretty obvious…”

19. This account formed the basis of count 1.

20. The complainant said she ran out of the shower, got changed, ran outside and sat on the trampoline. The appellant kept coming up to her and asking what was wrong. She would run away and did not answer him. The appellant came and apologised. The complainant said, “he’s really sick in the head, he was born sick in the head and my Mum knew that and she told me so…” She then played the PlayStation with the appellant’s sons.

21. The complainant went on to describe the events that became count 3:

“… and so I went with him into the, his bedroom. And he took me into the big walk in wardrobe and so I started to, and then he, he went off and, and left me sitting there so I ran back into the house and he said, Come on, and so I did. I'm not sure why I did, it was, it was a mistake of me going with him. And then he closed the door and he said, We don't, I don't want, I don't want the boys to see, and I'm like, What do you mean. And then he said, Just, just be quiet, and I said, No, and then I tried to get out but he wouldn't let me. And then he, and then he, he pulled my pants down and chucked me onto his clothes and then he pulled his pants down and, and tried to put it into me. And I kicked him, I kicked him there because I knew boy, it hurts for boys when he did that and I kicked him there and ran off into my room and I locked the door and I didn't come out for like a few hours. And, well I went out to get food and stuff and then my Mum came home from work and I just hang, hung around with my Mum for the rest of that day.”

22. Later on in the interview, the complainant provided further details of what had occurred in the shower. Her mother left for work at about 8:00am. At about 9:00am she went to have a shower. The bathroom door and the shower door were closed. She was under the shower for about a minute when the appellant walked in. She saw him getting undressed out of the corner of her eye. He got in the shower with her. The complainant described her feelings at the time the appellant got into the shower with her: “I’m feeling like God what’s he doing now and sort of like and I …. in my head I’m just like, like I’m sort of giving him a facial expression like what the hell are doing here”. The appellant had never been in the shower with her before.

23. The appellant sat on the floor of the shower with his legs crossed. The complainant said: “He said, Just sit on my knee, and he was sort of holding it there, he was holding it like that, he’s just like, Just, just sit here, and I said, No I’m not going to. And then I tried to get out of the shower and then he wouldn’t let me”. The appellant was holding “his penis” with his right hand. The complainant said:

“Q147    O.K. And can you describe what his penis looked like?

A   I don’t really feel comfortable telling that and it’s…. ….question.

Q148    O.K. Let, let’s talk about that, how come you feel uncomfortable about that?

A   Because when I sort of look back to it I find it as a really disturbing image and it's sorta brings up emotions and makes me feel sad.

Q149   O.K. It's really important that we do talk about that part because it gives us an understanding of what you saw at the time. And I'm really sorry that makes you very emotional and it's hard for you to say that but it's something that we really need to talk about.

A   Maybe before I tell you could I have a drink of water?

Q150   You certainly can, absolutely.”

24. The complainant went on to describe the appellant’s penis as “hairy and stiff”. She said looking back it was obvious because boys’ penises go stiff when they were getting “horny”.

25. The complainant refused to sit down. She said “No” and told him she was getting out of the shower:

“A   I tried, I pushed the door and pulled it back sharp and he said, No you're staying, and I said, I don't want to, and - - -

Q163   And what happened after that?

A   He forced me to sit on his lap and, and I, and I did because he pulled, pulled me down to his lap but, and by that, not, like I said before not lucky but it went up my bum not, not up my vagina.

Q164   O.K. 'Cause you did tell me and Chris before about something about his penis going up your bum and not your vagina ---

A   Mmm.

Q165   --- how do you know it went up your bum and not your vagina?

A   Because I could feel it ---

Q166   O.K.

A   --- and it hurt.”

26. The complainant said she “grabbed his penis, ripped it off and ran out and he, and he said, Ow you grabbed it, I’m like, I know.” She grabbed it because it was sort of “stuck”. She demonstrated how he was sitting and how she “went behind, grabbed and pulled it off” and ran out of the shower.

27. The complainant ran unclothed to her bedroom. She did not care that she was wet, and she put some clothes on and ran outside to the trampoline. From the trampoline she saw that the appellant’s two sons were in their bedroom playing the PlayStation. His two sons were aged about 4 and 8 years old and they were looking in the other direction. The complainant went to the house next door and sat on their verandah for a while but no one was home.

28. After about half an hour she was walking down a path that went to a creek when the appellant ran up to her. He said, “Look I’m sorry”. She did not take any notice of what he was saying and ran to her room and locked her door. All of these events happened before lunchtime.

29. In providing further details of the events in the bedroom, the complainant said, “I have a little circle in the door and I looked through and no-one was there so I walked out and got myself some, something to eat.” The appellant came and asked her to come into the closet in his bedroom. There was a shed in the backyard about 6 metres from the house that her mother and the appellant had turned into their bedroom. The appellant said, “Just come with me”. The complainant told him she did not trust him anymore and the appellant said, “Look I’m sorry you know I get sick in the head sometimes and I don’t know what I do.” The complainant thought, “Fine”, and if he was going to do anything like before she could just run out and get out of the situation.

26. The complainant went and sat on the bed. The appellant then walked out and she waited for about 5 minutes before she went and sat on the couch in the house. The appellant came up to her and said, “Come on I’m ready now”. She said “Ready for what” and the appellant said, “Nothing I was just getting some things” – although she could not actually remember his answer. The complainant went with the appellant to the bedroom and the appellant pulled her pants down. He pushed her on the chest with both his hands and she landed on a pile of clothes in the corner of the cupboard. The complainant was wearing tracksuit pants, underwear and a shirt and he pulled off her pants and her underwear.

27. The appellant took off his pants and underwear and took his penis out and came towards her. She said:

“And then he sort of knelt down and, and went like that (DEMONSTRATES) and I, then going through my head what the hell is he doing, just reflexes I kicked him there and he went back on the floor. And because it hurts for boys and, and I ran out and then I didn’t talk to him for the rest of the day”.

32. The appellant did not try to touch her, grab her or any part of her body. When she kicked him in the penis he just fell to the floor and said, “Ow that hurt”, and she ran out. The complainant said he was trying to put his penis in her vagina. She knew that because, “He was looking there and he was going very quickly and he was going into the direction of it.” The complainant was lying back on the floor in shock because she had hit her head on the wall. She ran out and ran to her room.

33. Prior to these events the appellant had touched her in a way that had made her feel uncomfortable. On one occasion she was in the kitchen making breakfast and the appellant ran his hand down her back and when he got to her butt he “sort of squeezed it.” It was in the same year as the other events she had described. It was when she and her mother were living at their house in Mullumbimby and the appellant used to come and stay. On that day her mother had gone to work and the appellant was babysitting her. No one else was home at the time. When the appellant put his hand on her butt it made her feel uncomfortable. He did not say anything; he just walked away.

34. On another occasion after these events, the complainant was lying on the couch watching a movie. The appellant came and lay next to her and put his hand on her hip. She stood up and walked into her room.

35. I interpolate here to mention that these previous acts were admitted as context evidence. During the judge’s directions to the jury, her Honour said (SU 30):

“It is evidence admitted solely for the purpose of putting those particular acts, that are subject of the counts, into a realistic and intelligible context, by that I mean the history of the conduct by the accused towards the complainant.”

A summary of the second interview

36. The complainant said she went back to speak to Detective Craigie because she did not say everything that happened in the first interview. She was asked:

“Q67    - - - there were some things that you told me that happened with [the appellant] in the shower at [XXX] Place. Is there anything that happened in that shower that you want to tell me about today that you didn’t tell me in the first interview?

A    No.

Q68    No?

A    I’ve told everything about the shower.”

37. The complainant was then asked:

“Q69    O.K. And remember the one that you told me about that happened in his bedroom - - -

A   Mmm.

Q70    … - - - at [XXX] at Wilsons Creek, everything that you told me that happened in the bedroom there is there anything else that you want to tell me about that?

A    No because I’ve already told everything about that.”

38. When asked by Detective Craigie what she was there to talk about, the complainant responded:

“A    Well when I was walking out of the house because I could hear my mum’s car coming up the driveway he said to me that if I told anyone that he would, that if I told anyone he would try and, he would try and kill one of my family members or someone that, or something, or someone that means a lot to me.”

39. The complainant could not recall the precise words the appellant used. When asked if there anything else the appellant said to her, the complainant replied:

“A    Well when my mum, when my mum, my mum said, What did you do today? I sort a turned around and [the appellant] was standing there with a angry face thinking I was gunna tell but I didn’t then because then I knew that something bad was gunna happen.”

40. The interview continued:

“Q81    O.K. Is there anything else that you want to tell me about that happened that day that you might not have told me in the first interview?

A    He also said that if I didn’t, well if I, I don’t know how to explain, that when, that if I would of like tried to pull away, or something, or escape, or something he said that he, said he would, he said he would probably do the same thing to my mum.

Q82    What do you mean, He would do the same thing to your mum?

A    Because it was after the shower and, and it was when, it was when I was just about to get out of the closet because he had took me in there.

Q83    Sorry. So which part are you talking about? Are you talking about the shower incident or are you talking about the bedroom incident?

A    The bedroom.

Q84   O.K. And what did he say to you?

A   He said that if I didn’t go along with him and I tried to get away from it he would do the same thing to my mum.

Q85    So when, when he said that to you at what point or where were you in the bedroom at that time?

A   I was standing at the door.

Q86   Which door is that?

A   The door for the closet.

Q87   O.K. And is that when he said that to you?

A   Yes.

Q88   O.K. And for him to say that to you what were you doing for him to say that to you?

A   I was just standing there and then I, I sort of had it going through my mind that he was gunna try and do the same thing that he did to me in the shower then he, then he pulled my arm and pulled me into the closet and then the, things happened that I told you last time I was here and then I got out and ran into my bedroom.”

41. After being asked, “Is there anything different that you want to tell me about what’s happened in that bedroom or in that closet that’s different to the, to what you told me in the first interview?”, the complainant replied, “No.” The following exchange then took place:

“Q90   … O.K. What’s happened [ZK] is I’ve had a conversation with your mum a couple of weeks ago your mum has told me some things - - -

A   Mmm.

Q91   - - - that you told her that you never told me in the first interview.

A   Yep.

Q92   Are you withholding anything now?

A   I sort a kind of let them go because I was, I was about to go to a party and I didn’t want those like thoughts to like ruin the party for me so I sort of put them in the back of my head and they’ve sort of slipped out so I can’t really remember them now.

Q93   Well this party you’re talking about how long ago?

A   It was when I told my mum some things.

Q94   When you told your mum some things?

A   Yes after the first interview.

Q95    O.K. Because your mum’s told me some things that you’ve told her that you haven’t told me in the first interview. Can you remember what those things are?

A    No.

Q96    Is it that you don’t remember or you don’t want to tell me?

A    That I don’t remember.

Q97    O.K. Is there any reason that after I had the first interview with you and you told me certain things in that interview that after the interview you’ve been talking with mum and you’ve told her things that you haven’t told me in the first interview. Is there any reason for that?

A    Well that day I was feeling stressed out that day so, and, I was feeling stressed out that day and I had like a blank mind because I sort a wanted it over and done with so I sort a blocked out a few things that I didn’t remember that day that I remember a few, that I remember like a month after I had the first interview.

Q98    O.K. So you’re saying you, you blocked some thing out before you came in to tell me to tell me. Is that right?

A    Well it was about a week or two before I saw you that I blocked them out.

Q99    You blocked them out O.K. So is there some things, other things that have happened that you’re not telling me about?

A    Not that I can’t, not that I can remember.

Q100    … All right. Is there anything else that’s happened with [the appellant] besides that, on that one day in the bathroom and also in his bedroom? Is there anything else besides those two incidence that’s happened with [the appellant]?

A    Well some times when I was, some times he would just give me a funny look but I didn’t really think that meant anything.”

42. Detective Craigie then informed the complainant that her mother had told her “about something that [the appellant] has tried to put his penis in your mouth.” The following exchange occurred:

“Q101   O.K. [ZK] what’s happened is mum’s told me about something that [the appellant] has tried to put his penis in your mouth. Is there anything that you can tell me about that?

A   Yes.

Q102    Is that something that you know that it has happened and you didn’t want to tell me today?

A   Well no but I sort of blocked it out after I told my mum so I didn’t really have a hold of it in my mind.

Q103   Can you tell me anything about that?

A   Basically that was pretty much in the shower as well.

Q104   The shower that you’re talking about is in the first interview you told me that you were in the shower and [the appellant’s] come in, is it that one that you’re talking about?

A   Yes.

Q105   O.K. Have you told me everything about that shower incident?

A   Yes except for that and that was because I didn’t remember it that day.

Q106   You didn’t remember it that day?

A   (NO AUDIBLE REPLY)

Q107   O.K. Can you tell me something about that now how that happen?

A   Well he basically, I, basically I was sitting in the corner of the shower when I pulled myself off him and then he just basically held his penis and put it to my mouth and so I stood up really quickly and went out of the shower.

Q108   O.K. So you said you pulled, you’ve pulled yourself off him in the shower and you sat in the corner - - -

A   Because he wouldn’t let me out the door of the shower.

Q109   What do you mean, He wouldn’t let you out the door of the shower?

A   He was like, he sort a kneeling in the front of the shower door which was taking up the whole spot to get out of the shower.

Q110   … O.K. And when you say that you couldn’t get out of the shower what were you doing to try and get out of the shower?

A   I was screaming.

Q111   Did you try to get out of the shower?

A   Yes I did but then he sort of pushed me back.

Q112   All right. So tell me more about the part, can you tell me where you were sitting, or kneeling, or standing when [the appellant] tried to put his penis in your mouth?

A   Well I was sort of like, I was, well the shower’s square (DEMONSTRATES) and the door was here and I was sitting in this corner with pretty much like, I sat in the corner pretty much like this - - -

Q113   Yes.

A   - - - screaming.

Q114   Can you tell me more about that because I’m just trying to get a picture of how that’s happen? Can you tell me what he’s done to try and do that?

A   Well he pushed me back into the corner because he wouldn’t let me out of the door of the shower so I started to scream and then, so I’m pretty sure, so I stopped screaming, he tried to put his penis into my mouth.

Q115   O.K. And how did he try to do that?

A   He just basically held it in his hand and leant towards my mouth.”

43. The appellant lent towards her and she pushed him back and went out of the shower as soon as she could. His penis did not touch her mouth. She demonstrated how far away from her mouth it came. She was able to get out of the shower because when he came towards her he had to come from the side so she pushed him back into the corner so she could get out of the door. She said:

“I just, I pushed, I just, well with all my strength I thought I’d just push the, I pushed the shower door open and ran out and shut the door behind me of the bathroom.”

44. After that she put some clothes on and ran out to the trampoline. The interview continued:

“Q134   So how come you told mum about this after I interviewed you the first time?

A   Because it sort a came up like a week or two afterwards.

Q135   O.K. And how come that came up?

A   Because I was having a bad day.

Q136   Is it something that you always known that that happen, that part you that told me about just now?

A   No because I blocked it out of my head.

Q137   O.K. And how come you remembered it?

A   Because I was having a bad day and I sort of looked back to that day ‘cause it was all that was on my mind and then I remembered it because I had a dream of the exact night and what, what it exactly felt like - - -”   

The complainant’s evidence

Evidence in chief

45. The complainant gave evidence that she was currently 12 years old and was born in 2002. A few years ago her mother had formed a relationship with the appellant and they moved into a house together in Wilsons Creek. Living in the house was the complainant and her mother, and the appellant and two of his three sons, OJ and OA. Both OJ and OA were younger than the complainant. The events that the complainant later described to police occurred when the complainant was home with chickenpox.

46. The complainant gave evidence that before she spoke to Detective Craigie about what the appellant had done, she spoke to her mother but did not know how long before. She was asked (Tcpt, 10 June 2015, p 15(26-33):

“Q. Can you tell us please can you recall now how you came to speak to your mother about what [the appellant] had done to you? How did the conversation with your mum start?

A. Well, we were talking about stuff at school and we were doing a child protection program thing which demonstrates assaults and stuff and different types and then I realised that what he did was wrong and it sort of came to my head when I was talking about school to my mum.”

47. When asked if she wrote something down on a piece of paper for her mum, she said she did because she was too scared to say it. She gave the piece of paper to her mum who asked her questions about what she had written. The complainant said she wrote more stuff down and gave it back to her mum.

48. The complainant was shown a piece of paper with her handwriting on it. She said she wrote “T-D-S-T-M” and gave that to her mum first. Her mother asked her to write it down because she could not understand it. The complainant agreed that was when she wrote down the other words that could be seen on the piece of paper. The piece of paper was admitted without objection (Ex 2) and the words were read to the jury.

49. The complainant had written:

“TDSTM

[TO] did stuff to me and its keeps popping into my head when ever I see him and it makes me scared and I think I know what you mean by ‘stuff’.”

50. The complainant spoke to her mother further after the initial conversation and before she was interviewed but she could not remember what she said. The complainant was aware that her mother spoke to her father about it.

Cross-examination

51. In cross-examination, the complainant agreed she watched the videos of the interviews played in court and she was satisfied that what she had said in the interviews was the truth. The complainant agreed that in the interviews she said the assaults occurred on a Tuesday. She knew that because that was the day of the talent show auditions and the day before the district cross athletics carnival.

52. The complainant said she was planning to do the talent show audition with her best friend at the time. The actual talent show was going to be the following week. She agreed she remembered that day because she missed out on the auditions.

53. The complainant agreed “the district cross” and “the district athletics carnival” were two different events. She agreed what she had said previously was that the talent show auditions were on Tuesday, which was the day before the district athletics carnival. It was put to her that the school newspaper, the “Durrumbul Rumble”, listed the athletics carnival on Friday 15 June 2012. The complainant thought that might have been the school athletics carnival and that the districts school carnival was later. The complainant said the district athletics carnival included all the public schools from around the Byron Shire.

54. The complainant did not recall having a day off sick on Thursday 10 May 2012. It was put to her that when she missed school on 10 May 2012 she missed the district cross country. The complainant did not have any memory of either of those propositions.

55. The complainant agreed she said in the first interview that when she woke up her spots were itchy, so she was going to have a shower and put some cream on. She also agreed she said in the first interview that she was having a shower before putting cream on her spots, and that the appellant came into the shower. When asked if she was saying in the first interview that she got in the shower before anyone put any cream on her that day, the complainant said, “I got cream before I went into the shower and I was going to put more on afterwards” (Tcpt, 10 June 2015, p 22(31-32)). She said she was having a shower and was then going to put some cream on her spots.

56. It was put to her that she told her mother that the appellant had put cream on her spots and she did not like the way he was doing it. She replied that was before she got into the shower. She said she did not really remember that during the interview as she felt like she was under a bit of pressure and said only what came to mind. She explained that was why she went back a second time.

57. The complainant agreed that in December 2013, she told her mother that the appellant had done some things to her. She accepted that she had told police officers in the video that she had a shower in the morning before she was going to put some cream on her spots. The complainant did not remember if she told her mother 18 months later, after the events in December 2013, that the appellant had put some cream on her spots and had got into the shower with her to wash the cream off.

58. The complainant did not remember telling her mother that when she went in the shed that day with the appellant he tucked her into their bed. She could not remember telling her mother that or remember that happening.

59. The complainant was “pretty sure” she told her mother the appellant got into the shower with her and tried to pull her down onto his lap. She did not know if she told her mother that he put his finger in her anus. When it was put to the complainant that she did tell her mother that in December 2013, the complainant said she would not lie to her mother about something like that; she just did not remember it happening. The complainant’s evidence continued (Tcpt, 10 June 2015, p 27):

“Q. I suggest to you is what you told your mum was that [the appellant] had put his finger in your anus in the shower. What do you say to that?

A. I don't know.

Q. So you didn't tell your mother that [the appellant] had pulled you down onto his lap so that his penis went into your anus, did you?

A. I'm pretty sure that's what I told her because it was really confusing me when - something about the finger because I didn't think it was anything to do with fingers.

Q. When do you say it was really confusing you about the finger?

A. Well, like the questions you're asking me.

Q. So are you telling us that you're confused by my referring to the finger?

A. Well, I don't know. I think I might've told my mum it was a finger because I didn't want to tell her the truth, what it actually was, but I'm pretty sure I told her what it actually was.

Q. I thought you told us a couple of answers ago that you wouldn't have lied to your mother in these circumstances?

A. Well, I wouldn't have, so I'm not sure. It was a while ago.

Q. Yes, but are you telling us now that you think that you lied to your mother because the truth was more awful?

A. Maybe.

CROWN PROSECUTOR: The difficulty is, with respect, she hasn't agreed she in fact said anything at all to her mum. She has been speculating about what she might have said.

HER HONOUR: She might have said it. I think you can go on to the next question, Mr Watts.”

60. The complainant agreed that she did not say anything to her mother in December 2013 about the appellant trying to put his penis in her mouth. The complainant also agreed she did not say anything to the police during the first interview about the appellant trying to put his penis in her mouth. The complainant said that when the appellant got in the shower, he sat against the door of the shower and she stood against the back wall. She was reminded that she told police the appellant was sitting in the middle of the shower, and was asked if that was correct. She replied she did not know because she did not really remember. She thought it was more against the door of the shower.

61. She agreed the shower door opened outwards, and the appellant could not have leaned on the door and expected it to stay closed. The complainant agreed that although she referred to the details of what the appellant did with his penis in the shower, including her reaching behind and pulling it, she did not say anything to police about him trying to put his penis in her mouth. When asked if that was because nothing like that happened, the complainant answered, “It was because I didn’t remember. Like I said before, I felt like I was under pressure and it didn’t really come to mind” (Tcpt, 10 June 2015, p 29(45-46).

62. When asked why she went back to police on 10 April 2014, the complainant said that was because she had left out some things she did not remember at the time of the first interview. She agreed that as far as she was concerned, those things were the same things that she remembered the appellant had said to her. She agreed that although the police officer asked her if she also wanted to talk about anything else that happened in the shower, she paused for several seconds and said, “No”. The complainant accepted that she hadn’t come back the second time to tell the police about anything further that had happened in the shower.

63. The complainant agreed the police officer had to remind her she had told her mother that during the shower incident the appellant also tried to put his penis in her mouth. She agreed that when the police officer reminded her she was taken by surprise. The complainant disagreed she just made up an answer that would fit in with what the detective was asking her (Tcpt, 10 June 2015, p 42):

“Q. When she asked the next question, ‘Can you tell me anything about ‘that’?’ again I suggest to you that you answered, ‘Basically’, and then there was a pause of several seconds, and you said, ‘That was pretty much in the shower as well’. Is that correct?

A. Yes, well, exiting the shower.

Q. I suggest to you that you had those long pauses because you were trying to think of something to say in answer to these questions that had caught you by surprise?

A. Well, because I hadn't been thinking about them, like they weren't like in my mind.

Q. I suggest to you that you just made up an answer that could fit in with what you were being asked by the detective.

A. I didn't make up anything.

Q. Did you tell your mother that [the appellant] had tried to put his penis in your mouth?

A. Yes.

Q. When did you tell her that?

A. I'm not quite sure like when, but all I remember is I was swimming in the pool and then I was sad and then I was talking to her.”

64. The complainant said that the swimming pool she was referring to was at the current house where they were living with her auntie, MM, and her partner MK.

65. The complainant said she first remembered that the appellant tried to put his penis in her mouth maybe a week before she told her mum, which was a couple of weeks before the second interview. The complainant agreed she wanted to put the memory of the appellant attempting to put his penis in her mouth out of her mind because she was going to a party. She said she had the memory before the party but she still went to the party. She was “pretty sure” it was a school friend’s party but could no longer remember who the friend was or where the party was.

66. The complainant agreed that in the second interview she told police that when the appellant would not let her out of the shower she was screaming in a loud voice. She disagreed it was a “high pitched scream” or she was screaming some words. She said it was more like yelling. She agreed OJ and OA were in their bedroom and that it was a small house. She said anyone in the bedroom would probably be able to hear yelling or screaming from the bathroom. When asked whether the boys would have heard her, she answered, “Probably”. She agreed later she went and played on the PlayStation with them. None of the boys asked her any questions about her yelling, and she did not ask them if they had just heard her screaming or yelling. She said she did not tell them that their father had just got in the shower with her.

67. It was put to the complainant that the incident in the shower involved pushing or wrestling and would have been “pretty noisy”, and the complainant agreed. She disagreed that during the pushing or wrestling she screamed and yelled some more, thereby making even further noise. The complainant agreed she said in her interview that she pushed the appellant into the corner of the shower and pushed the shower door open. She then ran out of the bathroom and shut the bathroom door behind her.

68. Her further evidence on this subject included (Tcpt, 10 June 2015, p 50(30-40)):

“Q. That would have been a pretty noisy wrestle to get out of the shower cubicle, wouldn't it?

A. I guess. I don't really remember. I wasn't really concentrating on the noise.

Q. No, but you guess that it would have been pretty noisy. Did you ask the boys whether they heard you wrestling to get out of the shower?

A. No.

Q. Did either of them say anything to you along the lines of, "Was dad in the bathroom with you"?

A. No.”

69. The complainant agreed that in the second interview, she said it was after she had a “bad day” that she told her mother that she remembered the appellant coming towards her mouth with his penis in the shower. The complainant was “pretty sure” she told her mother about this on a different day to the day she was going to the party. The complainant could not say how many weeks went by in the timeline of events between the first interview, her having the memories, and telling her mother about them. During further cross-examination, the complainant gave the following evidence (Tcpt, 10 June 2015, p 55-56):

“Q. Was it in the dream that you saw these events that had been blocked out of your mind?

A. No, not really. Well, yeah, I saw the events but I know they always happened - normally.

Q. But you hadn't remembered them before the dream?

A. Yeah.

Q. But after the dream you did remember them. Is that what you're telling the police officer?

A. Yeah.

Q. You see, it's not true is it that [the appellant] tried to put his penis in your mouth in the shower?

A. Well, it is true. It was what it felt like.

Q. I'd suggest to you it's not true that [the appellant] even got in the shower with you.

A. He did.

Q. It's not true that he pulled you onto his lap and that his penis went into your anus?

A. That is true.

Q. I suggest to you it's not true that he put his finger in your anus.

A. That’s not true.

Q. It's not true that he tried to put his penis in your vagina in the shed bedroom.

A. That is true.

Q. I suggest to you that it's not true that he assaulted you or in any way pushed you or did anything else physical to you in that shed bedroom when you had the chicken pox.

A. That's true, because he did.

Q. In that regard did you tell your mother that in the shed bedroom [the appellant] was yelling at you?

A. Yeah, I'm pretty sure I did.

Q. Is it true that in the shed bedroom that [the appellant] was yelling at you?

A. Yes.

Q. Correct me again if I'm wrong but you didn't tell that to the police officers in the videos that we've watched, did you?

A. No.

Q. So what do you say [the appellant] was yelling at you when you were in the shed bedroom on this occasion?

A. I don't know what he was - he was just yelling at me to just like stay still. I don't really remember. All I remember is just him yelling.

Q. So again just so we're clear, by yelling do you mean yelling at the top of his voice?

A. No, he was just raising his voice at me.

Q. Why did you tell your mother that he was yelling?

A. Because it's what it felt like.”

70. The complainant disagreed that the appellant did not make any threats to her as her mother was arriving home on the day of the incident. She did not remember the exact words he used. She remembered him saying something like, if she were to tell people or tell anyone what happened and he found out, then something would happen to one of her family members, friends, or someone she cared about or who cared about her. She remembered the appellant saying those things to her about a week after the first interview. She kept it to herself for a while. She did not want to let it get to her by telling anyone. The complainant agreed her mother asked her why she hadn’t told her about the assaults earlier, and that was when she told her mother about the threats. She disagreed she just made up the threats as an answer to why she had not said anything about the assaults.

71. The judge decided to give the complainant a break, deciding that she was too tired to continue. MS, the complainant’s mother, was interposed and the complainant’s evidence continued on the next day. It is convenient to continue this summary of the complainant’s evidence before summarising the testimony of her mother.

72. When the complainant’s evidence resumed, she was taken to three weekly newsletters from the Durrumbul Primary School dated 12 June 2012, 18 June 2012 and 25 June 2012 (Ex C). The 12 June 2012 newsletter stated that the athletics carnival of 15 June 2012 was postponed to 22 June 2012 due to wet weather. The complainant did not remember that happening. The newsletter said on the following Friday the school would attend the annual small schools athletic carnival. The complainant agreed that was the athletics carnival she had been referring to in her evidence. She was “pretty sure” she remembered going to the small schools carnival but she did not know. She said she did not remember anything really. It was put to the complainant that the school attendance records indicated she was absent for Tuesday, Wednesday and Thursday and that it would appear she was at school on 22 June 2012 when the small schools athletics carnival was held. She agreed with the records but said that it was a long time ago and could not remember going.

73. The complainant agreed the newsletter dated 18 June 2012 also noted that the athletics carnival had been moved to 22 June 2012. The complainant did not remember reading the newsletter at the time.

74. The newsletter dated 25 June 2012 included photos of “[CB, CS and CZ]” enjoying the activities at the athletics carnival. The complainant agreed she recognised the children. She did not remember being at the athletics carnival with them. All she remembered was being at the cross-country with them. The complainant agreed the newsletter also noted that the final result from the carnival would be forwarded to the school to determine who would progress to the district carnival on 3 August 2012. She said, “Well, looking back now, I can’t exactly remember whether it was district or normal, because it was a while ago” (Tcpt, 11 June 2015, p 99(39-40)).

75. The complainant agreed that when she was off sick on 19, 20 and 21 June 2012, the schools carnival had not even been held and no one had been selected for the district carnival from her group. She was “pretty sure” she missed the auditions for the talent show and missed the district athletics the following day, but it turns out that was not what happened.

76. It was put to the complainant that she told police she was assaulted the day before the district athletics carnival when that could not have been the case, and that she was making up the whole story of being sexually assaulted. The complainant said she wasn’t making the story up and that it did happen.

77. The complainant was referred to the first interview. She agreed she described an incident where she was lying on the couch and the appellant lay next to her and put his hand on her hip, and she stood up and walked out of the room. When it was put to the complainant that this did not take place, she disagreed and said she remembered that incident.

78. The complainant agreed that in the first interview she described an incident when the appellant ran his hand down her back and squeezed her “butt”. The complainant was “pretty sure” that incident happened in the house where she lived with her mother before they all moved in together at XXX Road. She agreed she told police all these incidents happened in the same year. It was put to her that she could not be right because she lived at XXX Road for all of 2012. The complainant said she did not have a specific memory of what years she lived in that house. She said she still remembered the incident and she was not making it up.

79. The complainant agreed that after her mother and the appellant split up, she asked her mother if she could contact the appellant to arrange getting together with him, OJ and OA. She did not remember how many times she did that. She did not accept that she was happy to catch up with the appellant, but said she was happy to catch up with his sons because they were her friends. She agreed she met up with the appellant and his boys in a park at Brunswick Heads and said, “…and then as soon as they got there I ran off because I didn’t want to sit with him” (Tcpt, 11 June 2015, p 105(18-19)).

MS’s evidence

Evidence in chief

80. MS gave evidence that she was the mother of the complainant. She was separated from the complainant’s father, ZD. She and ZD shared the care of the complainant, although the complainant spent most of the time with her. MS began a relationship with the appellant in early 2010. The appellant had three boys of his own. At the beginning of 2011 they moved into a house together at XXX. Shortly afterwards the appellant had care of his two younger boys, OJ and OA, for most of the time.

81. In 2011, the complainant and OJ went to Durrumbul Primary School and OA went to Cobbers Day Care in Mullumbimby. MS and the appellant ended their relationship in late July 2012. After they moved out of the house at XXX Road they did not share another house together.

82. In 2012, MS was working in Mullumbimby, Tuesday to Thursday and alternate Sundays. She started work at either 7:30am or 9:30am. If she started work at 7:30am, the appellant would take the complainant and OJ to the school bus stop in Mullumbimby. Generally the appellant would collect them after school. If the complainant was going to her father’s place then he would arrange to pick her up after school. During 2012, the appellant did not have consistent employment and spent most of his time at the house.

83. MS was asked to describe the property at XXX Road. She said out the back of the house was a big shed (see Ex B). The shed was divided into two areas and the smaller area was further divided into two rooms. They used the smaller area as their bedroom and walk-in wardrobe, which was sectioned off and included a door. They had some freestanding clothes racks in there and a tallboy. Between MS and the appellant, that area got pretty messy and usually there was a bit of junk and clothes piled on the floor.

84. MS said that in 2012, the appellant’s two boys and the complainant all got chickenpox. They had some cream from the chemist and MS got some herbal ointment from the herbal dispensary as well. OA was in Kindy at Durrumbul Primary School at that time and all three children spent time off school while they were sick.

85. By December 2013, MS and the complainant were living in one of the bedrooms at her sister’s place. When a detached studio on the property became vacant, she and the complainant moved in there. They were in the studio after school on Wednesday 11 December 2013, spending time together. The complainant had just been at her father’s place for two days so they were chatting and catching-up. MS said her daughter seemed to want to hang out and talk to her. Her testimony continued (Tcpt 11 June 2015, p 69-70):

“A. She basically just said in this big conversation we were having, ‘I need to tell you something, mum. Are you going to promise me you can't tell anyone,’ that's right, and that's why I'm like, ‘What?’ She basically said, ‘You know I really, really need to talk to you about something, but you can't tell anyone,’ and that was the big thing. So I'm like, ‘Okay, yeah of course, honey,’ you know, ‘you can talk to me about anything’ and she started getting really distressed, and I'm like, ‘You know, you can tell me’ and she's like, ‘I can't, I can't, it's too hard.’

It was a bit hard, because I was feeling like this anxiety because something big, she wanted to tell me something big, and I was like freaking out, and I think she said something about [the appellant], and then I just went into panic mode. I'm like, it can't be anything like that, it can't be anything like that, and - sorry - and I'm like, ‘You know, you can tell me anything.’ She's like, ‘I can't tell you.’ She said something like, ‘How about I write it down for you?’ I'm like, ‘Great. Great, do that.’ And she just wanted to keep going and then she went in to the bedroom and I was sitting at the table--

HER HONOUR

Q. Just, without going into what your thoughts were--

A. Sorry.

Q. Try and just tell us what she did and said and what you said and did.

A. And then she came back out of the bedroom with this little bit of paper all folded up, and I opened it and it had, just in capital letters, T-D-F-M something across the top, just these capital letters, and I'm like, ‘I don't understand this, [ZK], you're going to have to write it out for me.’ So she went back into the room and she came back and gave it to me, again all folded up, and it said something like, ‘[TO] did stuff to me,’ and I can't get it out of my mind, and I think, you know, what sort of stuff, and while I was sitting there reading it, she ran to the corner and curled herself up in this little ball in these boxes that we had in the corner, and I just went over to her and held her and we just cried, and she was just crying, and I was like--”

86. MS then identified the words on Exhibit 2 that her daughter had written.

87. After MS comforted the complainant, they went to the kitchen where the complainant spoke more about what happened. MS said (Tcpt, 10 June 2015, p 71(6-23):

“A. I can remember bits of it. Again, like, we were in pretty much a state of like trauma and my world was falling in, but we went back into the kitchen and we were sitting around the table. She told me it was when she had the chicken pox and that he was putting cream on her and it felt, she just said it just felt wrong, so she got in the shower to wash the cream off.

Q. Yes.

A. And she was really distressed, like she was hiccupping and sobbing and I remember thinking she looked like she was a little bird about to take off, because she was doing this, so it was - she wasn’t totally clear, but then she’s like, ‘And then he got in the shower with me’ and then she just started like she was going to take off, like - and she was, she was really broken, she was just like - and then, ‘He was in the shower with me and he kept trying to make me sit down on his lap with him, and then he was touching me there’. And she said, ‘And then it was inside,’ and she just like totally took off and was super emotional and I’m just trying to hold her and - and then we were sitting again and she was, like, ‘You know, that’s why I was so funny about him picking me up from school like’ – yeah, it’s just--”

88. When asked if the complainant said anything else that happened between herself and the appellant, MS testified that the complainant said (Tcpt, 10 June 2015, p 71(37-45)):

“A. He made her go into our room, like our separated room with her, and tried to fuck her up in bed. Yeah, and - again she was just getting really, really upset, like she wasn’t making much sense, and it was really in bits and pieces and I was like, ‘Honey,’ and I’m asking her if this has ever happened before, and she’s like, ‘Not like this,’ and I’m like, ‘What did you do?’ She said, ‘I just got out of there and I went and sat with the boys.’ And I thought, ‘Oh my God, the boys were there,’ what - and she said they were there the whole day, they were watching TV when he took her to the bedroom, our bedroom.”

89. The complainant told her she had to “pinkie promise” that she would not tell anyone, and MS said that was the deal (Tcpt, 10 June 2015, p 72(6)).

90. She agreed that the first time she actually attended the Byron Bay Police Station was 23 December 2013. When asked if there were any conversations between the time the complainant told her about the incidents and when they went to the police, MS said that the next afternoon they talked again and the complainant would come out with little things here and there. MS said she had never written down anything that the complainant told her about the appellant.

91. MS testified that on the weekend following the Wednesday after the complainant returned from her father’s, she told the complainant (Tcpt, 10 June 2015, p 72(43-46)):

“I need some support. We need to tell our family. I want to talk to my sister, you know. She’s our family. She needs to know this… Maybe we should - just think in your mind that maybe we should go to the police at some point”.

92. MS said that sometime after the first interview, the complainant came into the kitchen while she was unpacking groceries and said something like, “And he tried to force me to put it in my mouth” (Tcpt, 10 June 2015, p 73(31-32)). MS did not remember what “it” was but got the gist of what she was saying. She said (Tcpt, 10 June 2015, p 73(35-38)):

“I sort of threw my hands up because I was in complete trauma and went, ‘Maybe you should talk to Detective Craigie about that,’ and I didn’t really talk to her any more about it at all.”

93. MS remembered coming home on an afternoon when she had been at work and the complainant had chickenpox. She walked in and asked the appellant how the complainant was. He told her the complainant had got a “bit upset” that day when the nit comb fell on her head in the shower. MS thought the complainant must have been really upset because she wondered how a nit comb could hurt her head. The complainant came in and MS asked her how she was going and how her head was, and tried to make a fuss over her because she was sick. The complainant did not answer her. MS said (Tcpt, 10 June 2015, p 74(17-20)):

“It was really sort of weird because [the complainant’s] pretty quick to get any sympathy and I’m like, ‘What’s going on? Are you okay?’ and she just sort of had this weird look and she wasn’t talking to me. They were both just being really weird.”

94. MS was asked if there was any discussion about the complainant’s chickenpox. She said (Tcpt, 10 June 2015, p 74(23-33)):

“… After that little scene I was sort of at the dining table with her and I’m like, ‘So did you put the cream on today?’ and she didn’t answer me. I’m like, you know, ‘[TO], did she get her cream on?’ I don’t know, it was like they were talking in riddles. I just remember being really frustrated and confused. I’m like, ‘But the new stuff from the herbal shop’ - because I’m like, ‘Was it better than the other stuff?’ and I just couldn’t get any answer out of any of them and that’s why I remember this day because I just remember feeling so confused. I was like, ‘What’s going on?’ and I got - I remember getting to the point that, ‘Yes, she has some cream on.’ I didn’t know whether she’d put it on herself or [the appellant] had but yeah, she had some cream on and I was just like, ‘You guys are doing my head in. Come on, [ZK],’ yeah.”

95. MS was asked about any other conversations with the complainant later that evening. She answered (Tcpt, 10 June 2015, p 74(43-48)):

“She was sort of standing in the lounge room, sort of in the dark, sort of calling me over and she said - she was in a really - obviously she was in a very weird mood. I thought it was just because of the pox. She said, ‘Mum, it’s all sore around my bum. It hurts around my bum hole.’ I’m like, ‘Babe,’ and [the appellant] was just sort of in the next room, in the kitchen, and he called out, ‘She’s probably got chicken pox on her bum,’…”

96. MS told the complainant that chickenpox went “everywhere” and that she might have worms. She said she was exhausted and just wanted to get the complainant into bed.

97. After they went to see the police the complainant continued to tell her “little things” (Tcpt, 10 June 2015, p 75(8)).

Cross-examination

98. In cross-examination, MS agreed she had at least a couple of conversations with the complainant after she first told her about the assaults and before they went to the police station. However, MS said the complainant “could not talk about it like she can talk about it now though so it was generally just more emotional exchange” (Tcpt, 10 June 2015, p 75(33-34)).

99. On the Saturday night after the complainant first told MS, MS, her sister, MM, and MM’s partner, MK, met with the complainant’s father, ZD at his place, and discussed what was happening. The next day, MS made an appointment with a detective at the police station. MS disagreed that they talked about what the complainant was saying the appellant had done to her so she could tell the authorities. She was going to tell the authorities her daughter said she had been assaulted. She agreed she was able to make a reasonably detailed statement but she had not seen her statement. MS agreed she indicated that the appellant had put some cream on the complainant’s chickenpox, and that the complainant did not feel right about the way the cream had been applied and had showered to wash off the cream. She thought she told police that the appellant had come into the bathroom and got in the shower with the complainant. She remembered the complainant telling her that the appellant had continually tried to have her sit on his lap, and pulled her down towards his lap. MS disagreed she told police the appellant had put his finger in the complainant’s bottom. She said, “No, because I - what I thought [the complainant] told me was when she said “inside her” I just assumed her vagina. That’s what I thought. I didn’t - yeah” (Tcpt, 10 June 2015, p 77(39-40)).

100. MS agreed that when the complainant said the appellant had touched her “down there”, she thought she was referring to her genital region, but the complainant did not say he had put his finger in her vagina. The complainant kept saying “down there”, “it was touching me down there, down there” and “inside me” (Tcpt, 10 June 2015, p 78(15-20)). It was all broken up and MS just made assumptions about what she was saying because the complainant was distressed. The complainant was sobbing and MS just held her and hugged her. She did not ask her for intimate details.

101. MS disagreed there were further conversations with the complainant about the details before they went to the police. She said the complainant did not want to talk about it much. MS agreed she did not get the impression the complainant was telling her the appellant had put his penis inside her or that there had been an assault to her anus. MS agreed her interpretation was that the appellant had put his hand or finger inside her vagina. She said, “… I could not grasp anything more than that. That was blowing my mind as it was” (Tcpt, 10 June 2015, p 79(41-42)).

102. MS was asked (Tcpt, 10 June 2015, p 80, 82):

“Q. Do you have any explanation of why you would have said to the police officer that she told you that his finger went into her anus at this point in the shower?

A. Again, it was my assumption. From the - she wasn't being clear, she was upset, she was hiccupping, she was almost hyperventilating, you know, she was getting a little word out here, a little word out there. I've just been over this with you. She was saying, ‘He was touching me down there, trying to’ - well, maybe I should have assumed something else, but that's just what - I could not comprehend what has since been revealed to me happened happened at that point. It's a really big step to try and comprehend that, and that's just what I--

…

WATTS

Q. My focus is, yes, not where inside her, but what part of him, to indicate that she said his finger went inside her.

A. She didn't indicate what part.

HER HONOUR

Q. What part of him?

A. She didn't indicate what part of him. She was sobbing and the conversation was very broken...”

103. MS said that from her recollection, the complainant went to her father’s the day after the complainant was sick with chickenpox. Generally, the complainant went to her father’s on Thursday nights and alternate weekends. The complainant spent Thursday night with her father and he took her to school on Friday. MS remembered ZD picking the complainant up on a day that she had been sick around that time. The complainant was very rarely sick and that is why it stuck out in her mind. However, she could not be certain if it was the usual Thursday night pick-up or if it was a Wednesday. MS and the complainant’s father were quite flexible with each other.

104. MS agreed the complainant told her that after the incidents she stuck with “the boys” for the rest of the day and that they were watching TV.

105. MS was taken to Exhibit B – a floor plan of XXX Road. She disagreed the trampoline was in the correct position on the map. She said the trampoline was not quite next to the shed but was sort of down the hill on another little flat area. She agreed that in the middle of the house there was a small room with a lounge and TV. The lounge and TV were in the same location except the lounge was further up against the wall.

106. MS agreed the house was small. She said if you were talking in one room you could make yourself heard in another room, if it was quiet. She agreed the house was in a semi-rural area and was relatively quiet. Most of the noise around the house came from the occupants, namely the children playing music, watching television, singing or banging pots and pans. She agreed if someone was yelling or screaming in the bathroom you would be able to hear them throughout the house; however, that depended on what else was on. She agreed if someone was yelling or screaming in the bathroom you would expect to be able to hear them from the lounge room or the boys’ bedroom. As for yelling from the shed, it depended on what was going on in the house. She said, “If we had the doors shut, the blender going or a TV on, probably not; but on a quiet afternoon, yeah, definitely” (Tcpt, 10 June 2015, p 88(17-19)).

107. In relation to the conversation she had after work with the complainant and the appellant when the former had chickenpox, MS said (Tcpt, 10 June 2015, p 88(24-26):

“That day had always stuck in my mind a little bit because I just remember feeling really frustrated and confused because there was no logic and no sense.”

108. MS said the reason she did not tell police about the conversation between herself, the complainant and the appellant when she made her statement on 23 January 2014, was probably because she was still in shock. She maintained she was still in a state of shock a month after the complainant told her. MS said she was at the police station for hours and her statement was mainly about the disclosure, history and what the complainant had told her.

109. MS agreed that after the complainant’s first interview, the complainant told her that the appellant had tried to put his penis in her mouth. That would have been a week before she made her statement with Detective Craigie.

110. MS remembered that the complainant would dream about the appellant (Tcpt, 10 June 2015, p 90-91):

“Q. Do you remember any conversations where she said to you that she had had a dream about what had happened to her on that night?

A. I remember she would dream of [the appellant], like she’d say I’ve had an awful dream or a dream about - yeah, after she first told me she was having disturbing dreams. She didn’t really go into detail but she was like I dreamed of him, I dreamed of him, yeah. I can’t place it in any date time but it was just after she started - told me and it started coming up.”

111. MS said she could not remember exact conversations but that the complainant had been having disturbing dreams about the appellant.

112. MS agreed that before the complainant told her about these events she had been behaving erratically and they were having difficulties in their relationship. She was asked in cross-examination (Tcpt, 10 June 2015, p 91(31-39)):

“Q. Those difficulties, did some of them continue afterwards in between the two interviews?

A. It wasn’t really difficulties in our relationship, it was herself. After she told me, straightaway I could see the change in how she sat quietly and did some drawing and sang a little song, and seeing her so calm, I hadn’t seen her like that in a long time. She’s just been fighting. It was like she’s fighting, she was fighting everything and being angry and hating and stuff like that. I seen her change, straight after she told me I seen her change, but then it, you know, builded it up again.”

113. MS could not remember the complainant going to a party around the time she told her about the further memory.

114. Exhibit 2 was shown to MS. In relation to the complainant’s note, “And I think I know what you mean by stuff”, MS said she had not used the word “stuff” to the complainant previously. She disagreed she had ever asked the complainant questions along the lines of, “Has [the appellant] done stuff to you?” (Tcpt, 10 June 2015, p 92(24-25)).

115. MS agreed the complainant spent time with her paternal grandparents at South Golden Beach. She agreed the mother of the appellant’s children also lived at South Golden Beach. MS remembered the complainant had told her that she had seen OJ, OA and the appellant on the beach when she was with her grandfather. The appellant had spoken to the complainant’s grandfather on the beach while she was talking to the boys. MS had been told this by the appellant when they met at a park to catch up and let the kids play together. MS was not sure when that was but said it was obviously before the complainant told her about the assaults.

Detective Senior Constable Hilda Craigie’s evidence

116. Detective Senior Constable Hilda Craigie, a member of the Ballina Child Abuse Squad, arranged to interview the complainant on 15 January 2014. On 23 January 2014, Detective Craigie took a statement from MS. During that interview, MS produced a note handwritten by the complainant (Ex 2).

117. During the course of the investigation, Detective Craigie contacted the Durrumbul Public School and obtained relevant attendance records and newsletters.

118. On 1 April 2014, MS spoke with Detective Craigie and told her that the complainant had provided her with additional information concerning the appellant. As a result of that information, the complainant was interviewed again on 10 April 2014. MS also made an additional statement that day and provided other recollections from the time the complainant had chickenpox.

119. In cross-examination, Detective Craigie agreed that apart from the complainant’s allegations, the appellant had never been subjected to any allegations of a sexual nature.

120. Detective Craigie agreed she made enquiries at Durrumbul Public School and obtained the newsletter dated 10 May 2012.

The appellant’s interview with police

121. The appellant was interviewed by Detective Craigie and Detective Senior Constable Catherine Kirby on 17 April 2014. A recording of the interview was played to the jury (Ex 4). During the interview, the appellant denied all allegations that he had sexually assaulted the complainant.

122. He had never been in the bathroom when the complainant was in there and did not recall having ever walked into the bathroom when the complainant was in the shower. He assisted the complainant to put cream on her chickenpox spots. The appellant remembered rubbing sores on her legs and possibly on her stomach and chest. He said occasionally the complainant would run from the bathroom to her bedroom but that happened very rarely. He had never seen her in her bedroom without any clothes on.

123. The appellant did not give evidence during the trial.

OJ’s evidence

Evidence in chief

124. After the completion of Detective Craigie’s evidence, the Crown case closed.

125. OJ, son of the appellant, was called as a witness in the appellant’s case. He was 11 years old at the time of the trial. He remembered moving to 34 XXX Road at the end of 2010 but did not know how old he was. He had been attending Durrumbul Public School since Year 2 and was in Year 6 when he gave evidence. OJ remembered having time off school when he had chickenpox. He remembered the complainant and his little brother were home, and he and the complainant had chickenpox at the same time. He believed he was home for more than one day. He did not remember who was home looking after them.

126. OJ remembered that the appellant would put cream on his spots as treatment for chickenpox. He did not remember if the complainant had any spots nor if she had any cream put on her.

127. OJ did not particularly remember what he was doing the first day he was home sick. He could, however, remember playing with OA or the complainant in their room with some cards or on the PlayStation.

128. He usually had his bedroom door open because the doorknob was “a bit messed up.” When the door was closed it would not open very easily. OJ was asked if he remembered if the door was open or closed the day he was playing with OA, but OJ said he did not remember being in his bedroom; he said, “I don’t particularly remember anything” (Tcpt, 11 June 2015, p 122(44)). When asked if he could remember anything that he did on the first day he was home sick, he said he remembered playing with his brother in their room. He did not remember whether the door was open or shut. He did not remember noticing his father or the complainant around the house during that day.

129. OJ did not hear any screaming, yelling, arguing, loud talking, or bumping or wrestling noises from the bathroom. He agreed that, from his memory of the house, he would have heard someone screaming from the bathroom because his bedroom was “pretty much” right next to the bathroom. He did not hear the complainant screaming or yelling or his father talking in a loud or angry voice. He did not remember if the complainant had a shower in the morning on any of the days that he was home with chickenpox. OJ did not remember seeing the complainant run out of the bathroom to her bedroom, outside around the trampoline or to the verandah of the property next door. He agreed he could see the trampoline from his bedroom because his bedroom had big glass doors.

Cross-examination

130. In cross-examination, OJ agreed his bedroom was not next to the bathroom although he said it was closer than it looked in the diagram. He agreed his father had spoken to him about the time he had chickenpox.

131. OJ agreed he had said he did not remember being in his bedroom that day but had also said he remembered playing in his room with his little brother. He agreed that both of those could not be true. He said the one that was true was the one where he did not remember if he was in his room or not. He agreed he told an untruth because he was there to help his dad. He agreed he did not really remember whether his dad was at home or not when he had chickenpox. OJ agreed it was four years ago and that was a long time ago.

132. Following the completion of OJ’s testimony, the appellant’s case closed.

“Q147   O.K. And can you describe what his penis looked like?

A   I don’t really feel comfortable telling that and it’s …. …. question.

Q148   O.K. Let, let’s talk about that, how come you feel uncomfortable about that?

A   Because when I sort of look back to it I find it as a really disturbing image and it’s sorta brings up emotions and makes me feel sad.

Q149   O.K. It’s really important that we do talk about that part because it gives us an understanding of what you saw at the time. And I’m really sorry that makes you very emotional and it’s hard for you to say that but it’s something that we really need to talk about.

A   Maybe before I tell you could I have a drink of water?

… [Break in interview]

Q155   So you saw him holding his penis in his, in his right hand when he told you to come and sit down - - -

A   Mmm Mmm.

Q156   - - - can you describe to me what his penis looked like to you at the time?

A   It pretty much looked like another piece of skin but attached here and it was like, it had, it, hairy and stiff.”

226. This is a matter that the jury was entitled to take into account when assessing her delay in disclosing the attempted fellatio.

227. The members of the jury were entitled to consider that MS’s recollection of what she had been told by the appellant about a nit comb falling upon the complainant’s head in the shower, and her observation that the appellant and the complainant were “both just being really weird”, supported the complainant’s accounts of what had occurred.

228. I do not agree that the complainant’s evidence of counts 1 and 2 was “inherently unlikely”. The dimensions of the shower were an agreed fact. Being aware of the physical differences between the complainant and the appellant, it was not unreasonable for the jury to accept the complainant’s description to police and in cross-examination as to how she managed to get away from the appellant. The evidence of the complainant could not be said to be wholly unreliable. It is evident from the judge’s remarks on sentence that the complainant was an impressive witness. Her Honour said (ROS 7):

“When she was giving her evidence in the trial the witness impressed as a thoughtful and intelligent young person. She was prepared to make concessions as were appropriate and in my view was truthful and reliable.”

229. This is not a case where the jury’s advantage of having seen and heard the witnesses called at trial may be disregarded.

230. After giving full weight to the primacy of the jury and having independently assessed the whole of the evidence, I am of the opinion that it was open to the members of the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each count. I am not persuaded that the jury must have been left with a reasonable doubt as to the appellant’s guilt on any count.

231. Ground 3 has not been established. Accordingly, the appeal against conviction should be dismissed.

Ground 4: Her Honour erred in the manner in which she applied Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) when sentencing the appellant

Submissions

232. The appellant complained that the judge’s approach to the sentencing of an offender convicted of a standard non-parole period offence has been rejected since R v Muldrock (2011) 244 CLR 120; [2011] HCA 39. The appellant argued that her Honour erred in asking whether or not there were factors that warranted departure from the standard non-parole period when considering the sentence for count 1.

233. The Crown contended that the judge’s remarks did not indicate a two-stage approach inconsistent with Muldrock. Her Honour acknowledged the effect the standard non-parole period had on the sentence to be imposed upon the appellant, whose antecedents did not offer much in mitigation. In oral argument, Mr Balodis submitted that although her Honour’s remarks had the hallmarks of R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, they could be explained by the appellant’s limited subjective case.

Consideration

234. Before concluding that the objective seriousness of count 1 fell within the mid-range of objective seriousness but “probably falls towards the mid-range but at the lower end of that range” (ROS 9), her Honour observed, when considering the appropriate sentence for count 1:

“In particular there is clearly here a need to consider what if any departure there can be from the standard non-parole period of 15 years imprisonment. Given that the offender was convicted by a jury and there has been a finding that the offending falls within the mid-range, it is difficult to see that there should be a significant or substantial departure from the standard non-parole period.”

235. In my respectful opinion, her Honour’s remarks do not comply with the judgment in Muldrock where the High Court held at [25]–[28] that a court is not permitted, when sentencing for a standard non-parole period offence, to embark upon a two-stage approach, commencing with an assessment of whether the offence falls in the mid-range of objective seriousness, and, if it does, asking whether there are matters which warrant a longer or shorter non-parole period.

236. At no stage did the judge refer to the standard non-parole period as a guide or yardstick. It appears that the judge placed determinative significance on the standard non-parole period. As error has been demonstrated, Ground 4 has been established. I would grant leave to the appellant to appeal against sentence.

237. Accordingly, the appellant is to be sentenced afresh in the exercise of this Court’s independent discretion: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42].

Ground 5: The sentences imposed upon the appellant are manifestly excessive

238. It is unnecessary to consider this ground.

Re-sentence?

239. The appellant does not have to establish that the sentence imposed by her Honour was manifestly excessive for the Court to exercise its discretion in his favour under s 6(3) of the Criminal Appeal Act 1912 (NSW).

240. I have had the advantage of reading the draft judgment of Fagan J in relation to the sentence appeal. I agree with the conclusion of his Honour and the orders which his Honour proposes.

241. BUTTON J: I agree with the proposed order and reasons of Price J with regard to the appeal against conviction. In particular, on my own assessment, ground 3 is not established.

242. I also agree with his Honour that error has been established in the appeal against sentence.

243. As for re-sentence, I agree with the proposed orders and reasons of Fagan J.

244. FAGAN J: I agree with Price J’s conclusions on the grounds concerning conviction and add only the following observations. With respect to ground 1, the Crown’s submission to the jury that the complainant was likely to have been telling the truth because fabrication of an account such as that which she gave in evidence should be considered beyond her capacity, in my judgment did not convey an implicit suggestion that the appellant bore the onus of proving the complainant had invented her allegations. I do not consider that the concession regarding this, made by the Crown on the appeal as referred to by Price J at [150], was necessary.

245. Regarding ground 3 I have independently examined the trial evidence, particularly that of the complainant and especially in relation to count 2. Like Price J I consider it was open to the jury to resolve all of the issues concerning the complainant’s evidence, as raised by defence counsel in final address and which have been agitated on the appeal, in favour of accepting her account of the events of each charge, beyond reasonable doubt. I do not consider that the jury must have been left with a reasonable doubt on any of the counts.

246. The evidence in relation to count 2 had to be evaluated with care because of the manner in which the complainant’s first mention of this emerged. That is, during a conversation with her mother after her initial interview with police and then, in a subsequent police interview, under prompting and leading questions based upon the recollection she had earlier passed on to her mother. The jury were appropriately directed to scrutinise the complainant’s evidence on count 2 with particular care in the passages that of the summing up quoted by Price J at [220] and [221]. It was open to the jury to accept the complainant’s evidence on this count, beyond reasonable doubt, if they saw fit after reviewing it in accordance with these directions.

The appeal against sentence

247. As her Honour’s sentencing decision is flawed by the error Price J has identified under ground 4, the question is whether any lesser sentence is warranted in law. In my opinion a significantly lower sentence is warranted for each of the offences and overall. I have reached this conclusion taking into account the statutory maximum penalties, the standard non-parole period for the offence against s 66A(2), the objective seriousness of each offence and the subjective circumstances of the appellant – with due regard to patterns of sentencing by New South Wales Courts for offences of this type.

248. Count 1, laid under s 66A(2) Crimes Act, was objectively the most serious of the three offences: a single instance of anal penetration of a 9-year-old complainant who was the stepdaughter of the appellant, himself aged 33 years at the time. The two counts contrary to s 66B, whilst serious in themselves, were relatively much less serious than count 1. Each s 66B offence was in the nature of attempted intercourse, oral in count 2 and vaginal in count 3.

249. Up to 31 January 2003 s 66A provided for an offence of sexual intercourse with a child of under 10 years carrying a maximum sentence of 20 years. From 1 February 2003 that was increased to 25 years. From 1 January 2009 to 28 June 2015 the original form of the offence was located in subs (1) for which the maximum penalty remained at 25 years but an aggravated form of the offence was created in subs (2) with a maximum of life. Circumstances of aggravation included that the victim was under the authority of the offender, actual or threatened infliction of bodily harm, commission of the offence in company and a number of other factors. This was the form of the section under which the appellant was charged, on the basis of his position of authority as the complainant’s stepfather. From 29 June 2015 the separate aggravated form of the offence was repealed. The original form has since then been retained in subs (1) but with a maximum penalty of life imprisonment, expressly subject to the Court’s power under s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) to impose a finite term of years.

250. Pursuant to ss 54A–54D of the Crimes (Sentencing Procedure) Act the standard non-parole period for the offence, including in its aggravated form as enacted between 1 January 2009 and 28 June 2015, has been 15 years at all times since standard non-parole periods were introduced. For the s 66B offence the maximum penalty was 25 years. No standard non-parole period was prescribed for these offences at the time they were committed.

251. The legislative developments referred to at [249] have followed a consistent trend upwards in setting the range of severity of punishment which the courts have been empowered to impose for sexual intercourse with very young children. This no doubt reflects increased community awareness of the lifelong harm done to the victims of such acts, universal abhorrence of this crime, alarm arising from publicity regarding its prevalence and corresponding legislative determination that heavier penalties should be available and be applied to achieve denunciation, general deterrence and protection of the community.

252. In fulfilling their duty to give effect to the will of the Legislature in this regard the courts have recognised significant variation in the degree of objective seriousness which may be exhibited from one instance of this crime to another. Any form of sexual intercourse with a child under 10 years is an appalling act but it may, for example, be much worse when accompanied by violence and induced fear or when it is part of a repetitive course of abuse. The crime may be more serious if the victim is of an age well below 10 years rather than just below. If the perpetrator is a close family member, for example the child’s natural father, the offence may be objectively worse because of the greater damage that may be done to the child’s sense of security. There are numerous other variables.

253. I take into account that the appellant had no prior history of offences of a sexual nature. He had convictions for only petty crimes, going back to 2010, two years before the subject events. He had not previously been imprisoned. Her Honour’s adoption of a “guarded” approach to rehabilitation was justified where the offender remained in denial of the offences and had not expressed remorse or accepted responsibility. On the other hand, the three offences proved against him all occurred on the one day, in one location and with one victim. So far as the evidence went these offences had no relevant precursor. The appellant had on one occasion squeezed the complainant’s bottom. Unlike many cases of this type, the appellant had not engaged in repeated abuse of the complainant over a sustained period. There was no indication of persistence after this single episode or of an uncontrollable propensity. The appellant remained living with the complainant and her mother for about another year after the offences were committed. Specific deterrence was not a prominent objective in the sentencing exercise.

254. In the following references to comparable cases I have recounted the essential integers of other sentencing decisions, as briefly as possible, to permit comparison with the objective circumstances of the appellant’s offence and with subjective considerations relevant to him. In all of these other cases, as in the present, there was evidence of long term adverse psychological and social effects upon the child. That is a constant, invariable common factor in the sentencing parameters for offences against s 66A.

255. The following caution was sounded by Johnson J in RR v R [2011] NSWCCA 235 at [152] regarding the use to be made of sentencing outcomes in other cases in the determination of an appeal on the ground that a manifestly excessive sentence has been imposed:

“[152] Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v The Queen (2007) 207 CLR 584; [2001] HCA 64 at [58]; Hili v the Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].”

256. On the other hand, the Court is bound to have regard to the sentences passed in like cases, provided that true comparability can be shown, in order to achieve consistency of sentencing. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6] Gleeson CJ said:

“[6] … All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

257. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ reiterated this as follows (some footnotes omitted)

“[28] ‘Equal justice’ … requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65]:

‘Equal justice requires identity of outcome in cases that are relevantly identical It requires different outcomes in cases that are different in some relevant respect.’ (emphasis in original)

Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. …

[29] General concepts of ‘systematic fairness’ and ‘reasonable consistency’ in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [47] - [56]. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is ‘consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.’ That kind of general consistency is maintained by the decisions of intermediate courts of appeal. ...” [Emphasis added].

258. The concepts of systematic fairness and reasonable consistency referred to in this passage as applying to Commonwealth criminal law are, equally, aspects of the administration of New South Wales criminal justice. The last sentence of the above extract, to which I have added emphasis, was reaffirmed in Hili v The Queen; Jones v The Queen [2010] HCA 45 (“Hili”) at [56]: “Consistency in federal sentencing is to be achieved through the work of the intermediate courts of appeal.” Again this is a statement of equal application to New South Wales sentencing. These statements of the High Court appear to me to impress a specific duty upon this Court, when determining whether a lesser sentence is warranted in law, to examine sentences passed in other like cases, particularly where they have been approved in this Court or passed by this Court upon resentencing.

259. The purpose of the comparison is to consider whether the sentence under appeal, viewed against the comparative decisions, reflects “consistency in the application of the relevant legal principles”. This does not merely involve checking that the principles have been articulated. The level of penalty imposed must be explicable by reference to the principles applied to the specific facts of the case and must bear a reasonable proportion or relationship to the levels of penalty in like cases where the same principles have been applied to materially comparable facts.

260. High Court authority supports reference to sentences passed in comparable cases not just for the restrictive purpose of achieving consistency in the application of the criminal law but also for the positive purpose of the sentencing judge or intermediate Court of Appeal drawing upon the collective wisdom of other judges in determining how to synthesise the objective and subjective features of case, the statutory maximum penalty and all other relevant considerations into a term of years. In Hili at [54] this aspect was expressed as follows:

“[54] In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303] – [305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out [at [303]], a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said [at [303]]: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’ [at [304]]. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ [at [304]] (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned’ [at [304]].”

261. My consideration of the following comparable cases confirms my judgment that an appropriate sentence for count 1 on which the appellant was convicted, the offence against s 66A(2), would be 12 years imprisonment with a non-parole period of 9 years. I consider that the significantly higher sentence imposed by her Honour is only explicable on the basis of an underlying misapplication of principle, given that the application of principle by this Court on past occasions in circumstances comparable to those of the subject offence has led to much lesser penalties. Respecting Johnson J’s caution quoted at [255], my conclusion that the sentence imposed was greater than was warranted is not arrived at merely on the simplistic basis that other sentences passed under the same section have been lower.

262. R v AJP [2004] NSWCCA 434: This case involved an single count laid under 66A in respect of which an additional offence of aggravated indecent assault (s 61M(2)) was taken into account. These crimes were committed in September 2003 when the maximum penalty was 25 years. The offender was sentenced after pleading guilty and received a discount of 25%. In this Court his sentence was increased to 5 years with a non-parole period of 2 years 6 months. Undiscounted, for purposes of comparison with the present case, that would have been a sentence of 6 years 8 months with a non-period of 3 years 4 months. The offender was 22 years old, he was the uncle of the complainant, an 8 year old girl, and had been entrusted to care for her and her 10-year-old brother for a day. He had forced the complainant to perform fellatio on him and had required her to remove her clothes. The indecent assault taken into account was constituted by him placing the complainant on his lap and moving her body to rub her vagina against his penis. The offender had no criminal record and his subjective case was stronger than the appellant’s because he had pleaded guilty, expressed remorse and was undertaking counselling.

263. This decision must be treated with some caution because it was heard and determined when R v Way was good law. The sentencing judge in the District Court had found that the offence was in the mid-range of seriousness but had fixed a non-parole period which was only 10% of the standard. The Court of Criminal Appeal concluded that his Honour could not have had regard to the standard non-parole period as a sentencing guide post. The Court found that the offence was below the mid-range of seriousness. It took into account in that regard that this was an isolated occurrence whereas it is common for offences of this nature to be part of a course of systemic abuse over a period of time. That is a consideration in common with the present case. Simpson J (as her Honour then was) said at [20]:

“However, it is correct that the experience of the courts shows, as his Honour mentioned, that repetitive abuse is frequently associated with s66A offences. While a pattern of behaviour is not determinative of the evaluation [of whether an offence is in the mid-range of seriousness or at some other point on the spectrum], that a particular offence is an isolated instance is not irrelevant to that evaluation.”

264. The Court also took into account in R vAJP that the offender had not threatened the complainant to keep her silence and in fact the offence had been discovered within about a week, whereas the appellant now before the Court did make such threats and his conduct remained undiscovered for much longer, whilst he continued to live in the same house as the complainant and mother for twelve months without further offence.

265. The offender in R vAJP was significantly younger than the appellant but even the appellant was only 36 at the date of sentence and this is his first time in prison. Undoubtedly there are points of difference between the circumstances of R vAJP and those now before the Court which would warrant some uplift of penalty against the appellant. But the substantial difference between an undiscounted sentence for R v AJP of 6 years 8 months with a non-parole period of 3 years 4 months and the appellant’s sentence of 16 years with a non-parole period of 12 cannot be reconciled. That is so even allowing for the increase in the maximum penalty from 25 years at the date of AJP’s offence to life in the present case. Of the two principal legislative “guideposts”, as they have been termed, the statutory maximum has increased but the standard non-parole period has not. In a case such as the appellant’s which is not in the upper reaches of the spectrum of offending against this section, the increase in maximum penalty would call for a marginal increase in severity of sentence, not an order of magnitude shift.

266. RR v R: The offender was found guilty by a jury of one count under s 66A that he had oral intercourse with a 5-year-old girl in March 2008. The maximum penalty was 25 years. This Court by majority declined to interfere with a sentence of 12 years including a non-parole period of 9 years. The complainant was the daughter of the offender’s neighbour and had been playing with the offender’s 7-year-old son. The offender was 46 year old at the time of the offence. He had forced the complainant and shouted at her to open her mouth as he thrust his penis back and forth. The complainant was immediately greatly distressed, ran across the street to her mother and reported what had occurred. The offender had a relatively minor criminal history with no prior sexual assault matters. His intellectual functioning was borderline impaired. Prospects of rehabilitation had been found by the sentencing judge to be reasonable.

267. Bathurst CJ did not disagree with the sentencing judge’s observation that “the younger the child the more serious the offence” (at [101]). Johnson J (with whom James J agreed) endorsed the significance of the child’s very young age to the objective gravity of the offence (at [147]):

“It will be apparent immediately that a most significant feature of the present case is that it involved a five-year old victim, an age well removed from the age limit of 10 years which demarcates a s.66A offence. None of the cases referred to before her Honour, or before this Court, involved a five-year old victim. Her Honour referred expressly to the child in this case being ‘extremely young, only five years old and the range for such an offence under s.66A is up to ten years’.”

268. The Chief Justice was in dissent with respect to the outcome of the appeal, concluding that the sentence was manifestly excessive and should be reduced to 8 years with a non-parole period of 6. His Honour’s observation on a point which differentiates RR v R from the present appeal is in my view significant (at [114]):

“Although, as I indicated, the maximum term of imprisonment and the standard non-parole period for a contravention of s 66A indicates the gravity of the offence, the sentence seems to be disproportionate to an appropriate sentence for an isolated offence, but rather one more appropriate for significantly more serious or consistent criminality.”

269. Jones v R [2012] NSWCCA 262: The offender was found guilty at the conclusion of his trial on two counts of having sexual intercourse with a boy 6 years of age, contrary to s 66A. These crimes were committed in October 2008 when the maximum penalty was 25 years. The offender was about 20 years old and the complainant was in his charge to visit some shops in a car. He took the complainant to a secluded location, pulled his pants down and licked and sucked his penis (count 1) then sat the complainant on his lap and anally penetrated him (count 2). The event was isolated. It occurred in Sydney. The complainant had been visiting there and he returned to the Moree district soon afterwards. About three months later he reported to his mother and grandmother what had occurred.

270. At first instance on count 1 a fixed term of 5 years was imposed and on count 2 a term of 15 years including a non-parole period of 11. In this Court those sentences were reduced, for count 1 down to 5 years with a non-parole period of 3 and for count 2, 12 years with a non-parole period of 8. McClellan CJ at CL said, with the concurrence of RA Hulme J and Schmidt J:

[96] Furthermore, the offences were of short duration and occurred in immediate succession effectively as part of one continuous act. The offences were opportunistic. There was no suggestion that the complainant was groomed by the applicant or that there was anything other than limited forethought by him. The offences were committed without accompanying threats or intimidating behaviour.

271. Most of those features are equally applicable to the present case. Although the appellant’s actions involved some struggle with the complainant it may fairly be said in mitigation of the seriousness of his crimes that a 9-year-old girl was able to stop him in his attempt to have oral and then vaginal intercourse. Evidently he did not fully utilise his superior physical strength and it may be inferred that he desisted in the face of resistance. The offender in Jones v R was 20 years old and the re-sentence by this Court in part reflects that subjective feature. However where the circumstances of offending between the two cases are otherwise closely similar, the sentence imposed by her Honour on the appellant cannot be reconciled to the decision in Jones. The significance of the increase in maximum penalty over time is the same for comparison of Jones with the present case as for comparison of AJP (see [265] above).

272. GN v R [2012] NSWCCA 96 was a case of a 40 year old offender who had penile vaginal intercourse with his 9 year old stepdaughter on one occasion in December 2009. He was charged under s 66A(2). The sentence passed in this Court, allowing an appeal, was 9 years with a non-parole period of 6. But for the offender’s plea of guilty this would have been 12 years with 8 years non-parole. The offender’s subjective circumstances included two features warranting mitigation of penalty which do not apply to the appellant. Namely, he had been persistently sexually abused by his own stepfather between the ages of 6 and 18 and he was mildly intellectually handicapped, to a degree which affected his moral culpability. It appears from the judgment of Basten JA at [10] and [11] that these factors were regarded as largely offset by the risk he posed of repeat offending, applying Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14.

273. MLP v R [2014] NSWCCA 183: The defendant was convicted of one count under 66A, committed in the second half of 2003 and was sentenced after trial. The maximum was 25 years. This Court entertained the appeal to correct error which flowed from the High Court’s decision in Muldrock. In the event the Court did not disturb a sentence previously imposed of 16 years including a non-parole period of 11 years. The offender was 37 years old at the time of the offence. It was committed against his daughter who was 9 years old. At the time he and his wife were separated. The offender had taken the girl together with two of his other young children on a camping trip and had penile vaginal intercourse with her, involving full penetration, in the presence of the other children.

274. The offending was isolated, not representative of a pattern of behaviour, and of short duration – about 10 seconds. That was long enough for the complainant’s hymen to be torn. The offender continued to deny his actions and therefore could not be said to have demonstrated contrition or remorse. In upholding the sentence this Court treated as significant the fact that the offender was the natural father of the complainant and that the offence had taken place in the presence of other young children, features not exhibited in the present case. These circumstances were referred to at [49]–[51] as a basis for distinguishing other cases in which lesser sentences had been imposed.

275. The Court in MLP v R acknowledged at [52] that the sentence was “stern” but was not persuaded that any lesser sentence was warranted. Having regard to the relationship of the offender in MLP v R to the complainant as natural parent, the fact that the offence involved vaginal penetration and tearing of the hymen and the presence of two other small children at the time of the offence I consider that the offending there dealt with was significantly more serious than in the present case. The “stern” sentence of 16 years with a non-parole period of 11 which was thought by this Court to be acceptable should not be regarded as within the range for the offending now under consideration. Still less can her Honour’s higher sentence of 16 years with a non-parole period of 12 be considered warranted in law.

276. KB v R [2015] NSWCCA 220: In this case the offender entered a late plea of guilty to a charge under s 66A(1) that he had penile vaginal intercourse with a girl 8 years old in April 2009. He was 52 at the time, an employee of the girl’s father on their family farming property. The maximum penalty was 25 years. In this Court he was resentenced to 11 years imprisonment with a non-parole period of 7 years 8 months. A discount of 15% was allowed for his late plea. Undiscounted the sentence would have been 13 years with a non-parole period of 9 years.

277. KB’s offence contrary to s 66A(1) was count 7. He was also convicted of 3 counts of indecent assault against the same child, committed on various dates between January and April 2009 contrary to s 61M(2). These offences were instances of touching the child on her vagina, buttocks and chest at times when she accompanied the offender as he moved around the property and when her father could not see what was occurring. The offender from time to time warned the complainant not to speak of what had occurred. He had been dealt with in the Local Court for four further s 61M(2) offences committed later in 2009 against the complainant’s older sister, aged 13 years.

278. In my reasons for decision in KB v R, with which Simpson JA and Button J agreed, account was taken of this Court’s decisions in RJA v R [2014] NWCCA 89 and Ingham v R [2014] NSWCCA 123. In each of those cases it had been necessary to re-determine sentences for offences contrary to s 66A, at times when the maximum penalty was 25 years, following the High Court’s decision in Muldrock. In RJA v R and Ingham v R the highest penalties fixed for offences against s 66A, even when they were part of a course of sexual offending against children aged 8 to 9 years, were 13 years with a non-parole period of 9 years. The offender in RJA v R was the child’s natural father.

279. I find in the collective judgment of the members of this Court who have been parties to the decisions cited here, considerable support for my view that a sentence of 12 years with a non-parole period of 9 was an appropriate penalty in the present case. I invoke those earlier decisions as showing that under her Honour’s sentence the appellant has been dealt with significantly more harshly than a number of other offenders in relevantly comparable circumstances. In all comparisons with sentences passed for offences committed when the maximum penalty was 25 years I have taken into account that life was the maximum penalty applicable to the appellant’s offences. As indicated at [265] and [271], even allowing for the increase in the maximum, the sentence imposed on the appellant was anomalous and greater than what was warranted.

280. For the lesser offences in counts 2 and 3 I consider a sentence in each case of 4 years with a non-parole period of 3 would be appropriate. These offences involved no actual physical sexual contact. They were attempts which were fought off. They would undoubtedly have been extremely disturbing and distressing to the 9-year-old complainant but her robust response ensured that what actually took place did not reach a high degree of seriousness. The appellant did not follow through with the superior force which he would undoubtedly have been able to bring to bear. There was no subsequent repetition of these attempts.

281. Of course any offence against this section will only ever be an attempt, by definition - yet a high maximum penalty is prescribed. Notwithstanding this, the present instances were not high on the scale of relative seriousness of such attempts. Much worse infringements of the section can readily be envisaged.

282. The appellant must be sentenced for each of these sentences on its own facts, taking into account that together they constituted the second and third parts of a sequence which began with the more serious anal penetration in count 1. Weighing all of these features I consider the fixed terms of 8 years for these offences to have been manifestly excessive. Having regard to the temporal and physical relationship between all 3 offences the total criminality involved would require that the sentences I have proposed should be served concurrently.

283. Accordingly, whilst I would join in orders (1) and (2) as proposed by Price J that the appeal against conviction be dismissed and that leave to appeal against sentence be granted, the subsequent orders I propose are:

(3)   The sentences imposed by Wells DCJ on 18 August 2015 are set aside

(4)   In lieu thereof the appellant is sentenced as follows:

1. On count 1 to imprisonment for a non-parole period of 9 years commencing 15 June 2015 and to expire on 14 June 2024 and a balance of term of 3 years to commence 15 June 2024 and to expire 14 June 2027.

2. On count 2 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.

3. On count 3 to imprisonment for a non-parole period of 3 years commencing 15 June 2015 and to expire on 14 June 2018 and a balance of term of 1 year to commence 15 June 2018 and to expire 14 June 2019.

284. The appellant will be eligible to be released to parole on 14 June 2024.

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Decision last updated: 20 February 2017