TS v R

[2022] NSWCCA 222

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

TS v R [2022] NSWCCA 222

Hearing dates:

29, 30 June 2022

Date of orders:

12 October 2022

Decision date:

12 October 2022

Before:

Basten AJA at [1];
Fullerton and Garling JJ at [298]

Decision:

(1)   Subject to order (2), refuse the applicant an extension of time within which to appeal from his convictions following verdicts of guilty returned on 18 July 2017.

(2)   With respect to grounds 1, 1A and 2(iv),

   (a)   extend time to appeal from the convictions to 14 December 2020,

   (b)   grant leave to appeal, and

   (c)   dismiss the appeal.

(3)   With respect to the aggregate sentence imposed in the District Court on 22 November 2017:

   (a)   grant the applicant leave to appeal, and

   (b)   dismiss the appeal.

Catchwords:

CRIME – appeal against convictions and sentence for multiple sexual offences – extension of time in which to appeal – notice of appeal lodged more than three years after trial and sentencing – 35 proposed grounds of appeal – extension of time and leave granted for limited grounds as to convictions

CRIME – appeal against convictions – miscarriage of justice – apprehension of bias of judge – trial by jury – judge’s language or conduct only relevant if in presence of jury – reference to “grooming” – whether reasonable juror might have apprehended judge might have formed opinion as to guilt of accused – self-represented accused – judge not expressing fixed view that accused groomed complainant – judge’s clarification and reformulation of accused’s questions in cross-examination of complainant

CRIME – appeal against convictions – miscarriage of justice – procedural unfairness – self-represented accused – duty of trial judge to ensure fair trial – refusal of adjournment – role of trial judge to inform but not advise accused – advice as to right to object to evidence not extended to legal advice as to basis of objection to particular evidence – judge not obliged to interfere with prosecution address unless risk of miscarriage

CRIME – appeal against convictions – unreasonable verdicts – finding that victims were sedated – compelling video evidence of state of complainant during abusive conduct – expert evidence supporting inference of sedation – no basis to doubt truthfulness and reliability of witness – accused admitted to performing sexual acts on complainant

CRIME – appeal against sentence – aggregate sentence – errors in indicating sentences for individual offences – error in considering inapplicable standard non-parole period – factual error affecting culpability of offender – re-sentencing discretion engaged

CRIME – appeal against sentence – re-sentence – serious sexual abuse of stepdaughter – offending persistent and regular over four years – sedation of victim and victim’s mother – offending video recorded for sexual gratification – late guilty pleas to video-recorded sexual assaults – convictions following trial on other offences – reflecting discounts for pleas in aggregate sentence – no arithmetical calculation for utilitarian discount – applicant’s health conditions considered – lesser aggregate sentence not warranted

Legislation Cited:

Crimes Act 1900 (NSW), ss 38, 61J, 61M, 66C, 66EA, 66EB, 73

Criminal Appeal Act 1912 (NSW), ss 5, 6

Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 2 [2], [3]

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 53A, 54A, 54B, Sch 2 cl 68

Criminal Procedure Act 1986 (NSW), ss 141,142,149, 294, 306N, 306P

Evidence Act 1995 (NSW), ss 66, 97, 99, 108, 136, 137, 165, 165B, 177, 192

Surveillance Devices Act 2007 (NSW), s 7

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Bao v R [2016] NSWCCA 16

Concrete Pty Ltd v Parramatta Design &

Crockford v R [2022] NSWCCA 115

Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Elsaj v R [2017] NSWCCA 124

Faraj v R [2022] NSWCCA 31

Glare v R [2015] NSWCCA 194

Glenn (a pseudonym) v R [2020] NSWCCA 308

Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61

Hofer v The Queen [2021] HCA 36; 95 ALJR 937

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46

Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68

MS v R [2017] NSWCCA 252

Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2

PG v R [2017] NSWCCA 179

R v EJ Smith [1982] 2 NSWLR 608

R v Smith [2016] NSWDC 108

R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181

R v Zorad (1990) 19 NSWLR 91

The Queen v Bauer (a pseudonym) (2018) 266 CLR 6; [2018] HCA 40

Varley v The Queen (1977) 51 ALJR 243

Category:

Principal judgment

Parties:

TS (Applicant) (unrepresented)
R (Respondent)

Representation:

Counsel:
Mr E Balodis (Respondent)

Solicitor:
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2014/00012342

Publication restriction:

Statutory non-publication order on names of and material identifying the complainants.

Non-publication order with respect to names of and material identifying the applicant and the mother of the complainants.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 November 2017

Before:

Conlon DCJ

File Number(s):

2014/00012342

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 17 June 2017, the Director of Public Prosecutions laid 132 charges against the applicant, TS. The majority of the charges alleged sexual abuse against the applicant’s stepdaughter, KS, from the age of 12 in 2009 to the age of 16 in 2014. The applicant was also charged with two counts of indecent assault against another stepdaughter, JS, who was 11 years old in 2013.

The police obtained SD cards which contained videos and photographs of the applicant performing sexual acts on KS. The applicant was charged with two counts of using KS to produce child abuse material and two counts of possessing child abuse material. In some of the videos, KS was unconscious. The Director laid 54 charges of aggravated sexual assault in relation to those occasions, alleging that KS could not consent because she was unconscious. The Director alleged a further 34 counts of sexual intercourse with a child between 10 and 16 (where non-consent was not an element of the offence), 10 counts of indecent assault, and one count of sexual intercourse with a young person between 16 and 18 under special care.

The Director also charged the applicant with 22 counts of administering an intoxicating substance to KS with the intention of committing an indictable offence, namely aggravated sexual assault. A further five counts alleged that the applicant administered an intoxicating substance to RL, who was his wife and KS’ mother, with the intention of committing the indictable offence of having sexual intercourse with KS. The prosecution case was that the applicant had administered Travacalm Original, a travel sickness tablet, to both KS and RL.

The applicant entered pleas of guilty to all the sexual offences, except three against KS and two against JS which had not been captured on camera. One charge of aggravated sexual assault against KS was also withdrawn. The applicant entered pleas of not guilty to the charges of administering an intoxicating substance to KS and RL. The applicant’s case was that KS was merely asleep in the videos where she was unconscious, and that KS had drugged RL to prevent RL from discovering that the applicant was having sexual intercourse with KS.

The applicant was unrepresented at trial. He addressed the jury by way of opening. The applicant also cross-examined the prosecution witnesses, including KS who was asked his questions by a court-appointed lawyer. He also gave evidence through an independent person asking him questions that he had prepared. The applicant addressed the jury at the end of the trial.

After a 15-day trial, the jury found the applicant guilty of all charges except one count of administering an intoxicating substance to RL. On 22 November 2017, the judge sentenced the applicant to an aggregate of 32 years’ imprisonment with a non-parole period of 24 years, dating from his arrest on 14 January 2014.

The applicant appealed both his conviction and sentence on a total of 35 grounds.

The primary issues were whether:

1. there was an apprehension of bias by the judge;

2. the judge denied the applicant procedural fairness; and

3. the judge committed an error of law in sentencing the applicant.

The Court held, giving a limited grant of leave to appeal against the convictions and dismissing the appeal against convictions and sentence:

As to issue (i) – apprehended bias

Per Basten AJA (Fullerton and Garling JJ agreeing):

1. The ordinary test is whether a fair-minded lay observer, with some knowledge of the trial process and context, might reasonably think that the judge might not determine the matter impartially having regard to the evidence. However, where a person’s guilt was determined by a jury, the judge’s conduct or language would generally only be relevant if made in the presence of the jury. The question of prejudgment must be assessed by reference to whether a reasonable juror might have apprehended that the judge might have formed a fixed opinion as to the guilt of the accused: [34]-[35], [63].

   Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, applied.

2. In the absence of the jury, the judge explained what the prosecution was required to prove. The applicant expressed that he had accepted the alleged acts but wanted to explain his actions as part of a “consensual relationship” with KS. The judge, with an understanding of both parties’ cases, explained that the prosecution was likely to characterise the applicant’s “relationship” with KS as grooming. There was no basis for an apprehension as to the trial judge having a view before evidence was called that the applicant had groomed KS: [44]-[46].

3. There was no likelihood that a reasonable lay observer of the trial judge’s interventions in the cross-examination of the complainant on behalf of the applicant might have concluded that the judge might have prejudged the applicant’s guilt. Since the applicant was not legally trained, the judge sought clarification as to the relevance of questions and reformulated unclear questions. Although on one occasion the judge intervened because of a mistaken belief that a question had not been put to another witness, that mistake did not reveal prejudice against the applicant: [60]-[61], [63].

As to issue (ii) – procedural unfairness

Per Basten AJA (Fullerton and Garling JJ agreeing):

1. Where an accused represents himself or herself, a trial judge has an obligation to ensure that the trial is conducted fairly and will need to explain relevant legal matters to the accused. The judge, however, is not an adviser of, nor an advocate for, the accused and must maintain a position of impartiality. A judge’s ability to explain matters may be limited by his or her knowledge of the circumstances. A judge must do whatever can be done to ensure that the jury’s patience and public resources are not depleted through irrelevant cross-examination or tender of evidence: [70].

   MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, applied.

2. The trial judge did not fail to accord the applicant procedural fairness. The judge ensured that the applicant understood the elements of the charges and the prosecution case. On the fourth day, the judge was entitled to refuse to adjourn the trial on the basis that there had been reasonable opportunities to obtain counsel, and a further opportunity was unlikely to produce the desired result: [76], [78], [81].

3. The trial judge did not err in not informing the applicant of his procedural rights to object that Ex EE was obtained improperly or unlawfully. Exhibit EE was a recording of two conversations between KS and RL taken on RL’s iPhone. The recordings were not unlawful because RL was a principal party to the conversation and the recording was reasonably necessary to protect her lawful interests. In any event, the contents of the conversation did not reveal information which the applicant had not admitted. Even if the recording had been improperly or unlawfully obtained, the evidence would have been admissible as evidence of complaint: [85]-[87].

   Surveillance Devices Act 2007 (NSW), s 7(1)(b), (3)(b); Evidence Act 1995 (NSW), ss 66, 108(3), referred to.

4. The trial judge did not have an obligation to prevent the prosecutor from making a closing address. Although it may be common that the prosecution does not address the jury when the accused is unrepresented, it is neither a rule of law nor practice. The trial judge must only disallow a prosecution address if it could cause a miscarriage of justice. The prosecution address was fair and directed to the evidence. Even if there were an error in permitting the prosecutor to address the jury, it did not breach fundamental principle nor lead to an unfair trial: [101], [109]-[110].

   Criminal Appeal Act 1912 (NSW), s 6(1), referred to.

   Varley v The Queen (1977) 51 ALJR 243; R v EJ Smith [1982] 2 NSWLR 608; R v Zorad (1990) 19 NSWLR 91; R v Smith [2016] NSWDC 108, followed; MS v R [2017] NSWCCA 252, not followed.

As to issue (iii) – sentencing

Per Basten AJA (Fullerton and Garling JJ agreeing):

1. The judge had erred in identifying standard non-parole periods with respect to the offences of sexual intercourse with a child. There were no standard non-parole periods for those offences at the time of the offending nor did their later enactment apply retrospectively. This was a material error that required the Court to exercise the re-sentencing discretion: [234]-[236].

   Crimes Act 1900 (NSW), ss 66C(2), (4); Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 2, cl 2; Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B, Sch 2 cl 68, referred to.

   Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

2. The judge also erred in finding that the objective seriousness of the offences of sexual intercourse with a child was greater where the applicant had ejaculated in KS during penile-vaginal intercourse because the applicant had exposed KS to the “real risk of pregnancy”. It was not in dispute that the applicant had undergone a vasectomy prior to those offences: [237]-[248].

3. Having considered the nature and extent of the offending and the subjective circumstances of the applicant, the Court was satisfied that no lesser aggregate sentence was warranted in law: [290].

Per Fullerton and Garling JJ:

1. Discounts for guilty pleas are to be taken into account and allowed for when indicating individual sentences for each offence. They are not to be applied to an aggregate sentence: [305]-[306].

   Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b), referred to.

   Glare v R [2015] NSWCCA 194; Bao v R [2016] NSWCCA 16; Elsaj v R [2017] NSWCCA 124; PG v R [2017] NSWCCA 179, followed.

Per Basten AJA:

1. The discounts for guilty pleas with respect to many individual offences were not reflected in the aggregate sentence because the aggregate sentence bore no direct relationship to the total of the indicative individual sentences. While it was desirable to give transparency to the effect of the discounts, without arithmetical precision, there was no ready method of doing so beyond noting their contribution to the indicative individual sentences: [275]-[278], [286]-[290].

   Criminal Appeal Act 1912, s 6(3); Crimes (Sentencing Procedure) Act 1999, ss 22, 53A, referred to.

   PG v R [2017] NSWCCA 179, referred to.

Judgment

1. BASTEN AJA: The Court is unanimous in concluding that this belated appeal against numerous convictions should generally not obtain an extension of time. Three grounds should be considered by the Court, but the appeal dismissed.

2. The Court is also unanimous that the applicant have leave to appeal against the aggregate sentence imposed in the District Court, but that the appeal should be dismissed. The other members of the Court have written separately in relation to aspects of the sentence appeal. It is convenient to provide the following index to these reasons:

3. INDEX

HEADING	PARAGRAPH
Issues on appeal	[7]
Conviction appeal – grounds alleging procedural flaws	[19]
Proposed withdrawal of guilty pleas	[19]
Apprehension of bias	[33]
(a) Background observations	[33]
(b) Prejudgment – ground 1A (reference to grooming)	[43]
(c) Excessive interference – ground 1	[47]
Procedural unfairness	[65]
(a) Denial of fair trial – grounds 2(i)-(iii)	[66]
(b) Exhibit EE – ground 2(i)	[83]
Permitting prosecutor to give closing address to the jury – ground 2(iv)	[90]
False statement by prosecutor – ground 2(iv)	[102]
Conviction appeal – grounds relating to admissibility of evidence	[111]
Prejudicial effect of videos – ground 6	[112]
Evidence of uncharged act – ground 7	[119]
Date of last offences – grounds 8 and 31	[124]
Evidence of pharmacologist – ground 13	[131]
Rejection of interview with JS – ground 9	[137]
Administering intoxicating substance to RL – ground 30	[150]
Admissibility of objects found in search – ground 14	[155]
Complaint by JS – ground 29	[160]
Conviction appeal – grounds relating to jury directions	[163]
Direction in relation to delay in prosecution – ground 3	[163]
Warnings with respect to the evidence of KS, RL and JS – ground 4	[169]
Directions as to elements of charge – ground 11	[183]
Unbalanced summing up – ground 12	[187]
Conviction appeal – unreasonable verdict grounds	[193]
Administration of intoxicating substance – grounds 5, 5A and 30	[193]
Indecent assaults against JS – ground 29	[203]
Miscellaneous grounds	[211]
Failure to disclose text messages – ground 10	[212]
Deletion of text messages by police – ground 35	[217]
Conclusions – proposed conviction appeal	[220]
Sentence appeal	[223]
Conceded error	[232]
Re-sentencing	[240]
Subjective circumstances	[242]
Remorse	[248]
Delay	[257]
Discount for pleas	[259]
Early offending: counts 1 and 2 against KS and 131 and 132 against JS	[262]
Administering an intoxicating substance	[265]
Sexual intercourse without consent	[268]
Indicative sentences reconsidered	[274]
Use of a child and possess child abuse material	[279]
Aggregate sentence	[281]
Non-parole period: special circumstances	[291]
Conclusion as to re-sentencing	[295]
Orders	[297]
Fullerton and Garling JJ	[298]
Schedule of Indicative Sentences

4. On 17 June 2017, the Director of Public Prosecutions presented an indictment against the applicant, TS, containing 132 charges. The majority of the charges (125) related to the applicant’s abuse of his stepdaughter, KS, which commenced in 2009, shortly after her 12^th birthday and continued until early 2014 when she was 16. Two further charges alleged indecent assaults upon a younger stepdaughter, JS, then aged 11 years in 2013. There were a further five charges alleging that the applicant administered an intoxicating substance to his wife and the mother of the girls, RL, with the intention of committing an indictable offence, the intended offence being that of having sexual intercourse with KS.

5. At the beginning of a trial, the applicant entered pleas of not guilty to all offences. However, on the second day of the trial, he changed his pleas to guilty with respect to the 99 counts of sexual abuse of KS; these were 54 counts of sexual intercourse without consent in circumstances of aggravation under s 61J of the Crimes Act 1900 (NSW), 32 counts of sexual intercourse with a child between 10 and 16 under s 66C(2) and (4), and nine counts of aggravated indecent assault under s 61M(2). The applicant also pleaded guilty to two counts of using a child for pornographic purposes, one under s 91G(1)(a) when KS was under 14 years and one under s 91G(2)(a) when KS was over 14 years, and two counts of possessing child abuse material (involving KS) under s 91H(2). The prosecution withdrew a further count of sexual intercourse with a child (count 3). The remaining 32 counts fell within the following categories:

Count	Offence	Crimes Act 1900
1	Aggravated indecent assault (KS)	s 61M(2)
2	Aggravated sexual assault (KS)	s 66C(2)
(22 counts)	Administering an intoxicating substance to KS with intent to assault KS	s 38(a)
126-130	Administering an intoxicating substance to RL with intent to assault KS	s 38(a)
4	Sexual intercourse with a person under special care (KS)	s 73(1)
131-132	Aggravated indecent assault (JS)	s 61M(2)

6. In substance all the counts to which the applicant pleaded guilty were supported by video-recordings of the offences being committed. Following his arrest his wife discovered 79 video clips and several hundred still photographs. The three sexual offences involving KS on which he went to trial (counts 1, 2 and 4) were not filmed. The largest area of dispute related to the 22 counts of administering an intoxicating substance, namely Travacalm. The prosecution case was that on those 22 occasions, KS was drugged and then subjected to sexual abuse, which was filmed. The offences relating to RL (the mother) were also committed, on the prosecution case, as a method of ensuring that she did not become aware of his conduct with KS: his intention to have sexual intercourse thus related to his continuing and persistent abuse of KS.

7. The applicant was acquitted on one count of administering an intoxicating substance to RL (count 130). Otherwise, he was convicted following a trial by jury in June and July 2017 on all the remaining counts to which he had entered pleas of not guilty. He was sentenced on 22 November 2017 to an aggregate sentence of imprisonment for 32 years, with a non-parole period of 24 years to date from his arrest, on 14 January 2014.

Issues on appeal

8. Following his sentencing, the applicant filed a notice of intention to appeal on 6 December 2017. An application to extend the notice of intention to appeal was refused on 18 June 2020 on the basis that the applicant had already been granted three extensions of time. On 14 December 2020, the applicant filed a notice of application for an extension of time to appeal and a document containing 26 grounds of appeal in relation to both his convictions and his sentence. Although it appeared that the applicant had received a grant of legal aid on 14 January 2019, which was extended on 15 May and 29 August 2019, the notice of appeal, together with the grounds (which covered 11 handwritten pages) was prepared and signed by the applicant in person.

9. Ten months later, on 18 October 2021, a further document was filed adding six additional grounds. On 22 June 2022, a week before the hearing of the appeal, a further document was filed alleging further particulars of procedural unfairness (ground 2), seeking to rely upon “new evidence” (grounds 15 and 35) and alleging “overloading” of the indictment (ground 33).

10. On 26 May 2022, the applicant sought leave to have RL called for cross-examination at the hearing of the appeal. The Registrar declined to issue a notice to RL to attend the hearing. The applicant indicated he wished to persist with that application and was advised that the matter could be raised at the hearing of the appeal. The application was abandoned at the commencement of the hearing.

11. There was some limited explanation given as to the reasons for the delay, evidence which was necessarily limited because it did not disclose the steps taken under the grant of legal aid, nor at what stage the applicant no longer had legal representation, nor the circumstances in which legal aid was presumably terminated.

12. Delay in appealing against conviction following a trial by jury, can give rise to a variety of issues. An important issue is whether success on the proposed appeal would result in a re-trial. In this case, having been refused pre-trial bail, the applicant had served some six years of his sentence prior to lodging his appeal. Further, some three years had elapsed since the trial. The likelihood that witnesses would be required to give evidence again at a re-trial might provide a powerful consideration against a lengthy extension of time to appeal. Particularly would that be so in circumstances where the events giving rise to the charges must have been traumatic for the victim, where the victim had been subjected to extensive cross-examination by her abuser and where that situation was likely to be repeated.

13. In the present case, the Director opposed an extension of time, or the grant of leave to appeal, on the basis that the proposed grounds lacked merit. The proper approach in the present case, while mindful of the potential effects of the delay, is to consider the merits of the proposed appeal.

14. However, that is not a straightforward task. The applicant’s written submissions were discursive and ran to several hundred pages (not consecutively numbered). The hearing of the proposed appeal lasted for two days, most of which involved the applicant addressing the Court. He did so fluently and coherently. Nevertheless, many, indeed most, of the issues raised were untenable and would have been patently untenable to a legal representative.

15. The applicant’s written submissions (including the last filed a week before the hearing), were each responded to by written submissions from the Director. Indeed, it was the Director’s submissions in response which led the applicant to identify further grounds of appeal.

16. The grounds may be characterised for the purposes of addressing them in the following manner:

1. procedural flaws;

2. admissibility of evidence;

3. challenges to jury directions;

4. unreasonable verdicts;

5. a number of miscellaneous grounds; and

6. sentencing.

17. The challenge to the aggregate sentence will be dealt with after addressing the grounds challenging the convictions. Nevertheless, two points should be made at this stage. First, as counsel for the Director identified, there was an error in the approach taken by the sentencing judge which required the appeal against sentence to be upheld and the applicant re-sentenced. That error involved the consideration of a standard non-parole period in relation to 32 counts under s 66C(2) and (4) when, at the time of the offending, there was no standard non-parole period for those offences and the introduction of that sentencing guideline did not apply to offending which had pre-dated the statutory amendment.

18. The second matter to note is the nature of the sentencing exercise. Given the number of counts to which the applicant pleaded guilty or was convicted (130), the indication of the individual sentences which would have been imposed on each count, even absent the error conceded by the Director, was an exercise which provided little practical assistance in determining an appropriate aggregate sentence, as even a high level of accumulating the multiple counts within each of the categories of offences would have resulted in an aggregate sentence well in excess of the sentence ultimately imposed. Accordingly, although this Court will need to re-sentence the applicant and indicate sentences for each count as mandated by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), the determination of an appropriate aggregate sentence will need to reflect this Court’s assessment of the objective seriousness of the offending viewed as a whole, it being a coherent course of serious criminal conduct almost entirely referable to the persistent sexual abuse of KS over some four years.

19. For the reasons set out below, the applicant will be refused leave to appeal against his convictions. Further, no lesser sentence than that imposed by the trial judge is warranted.

Conviction appeal – grounds alleging procedural flaws

Proposed withdrawal of guilty pleas

20. Ground 32 (only identified in a document filed on 18 October 2021) read as follows:

“In light of his Honour’s comments regarding the law concerning the [s] 61J offences, the appellant should be permitted to withdraw his plea of guilty to the 54 counts pursuant to [s] 61J on the indictment and the appellant pleads guilty to the charge of [s] 66C(2).”

21. Generally, the withdrawal of a plea of guilty would require that the conviction be set aside and the charge or charges be remitted for a trial. If that course were required, there might be questions as to the basis of the other verdicts given by the jury and the aggregate sentence would need to be set aside. However, as was clear from the applicant’s submissions, what he intended was to have this Court substitute verdicts for the alternative offences under s 66C. No doubt in principle, that course would be available. However, there would remain a question as to the circumstances in which, years after the pleas were entered and the applicant sentenced, an attempt was made to withdraw the pleas. Because the application is based upon a misunderstanding as to legal principle, that enquiry need not be undertaken.

22. Section 61J relevantly provides:

61J   Aggravated sexual assault

(1)   Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2)   In this section, circumstances of aggravation means circumstances in which—

…

(d)   the complainant is under the age of 16 years,

… .

23. The alternative offence to which the applicant proposed to plead, namely that under s 66C(2), reads as follows:

66C   Sexual intercourse—child between 10 and 16

…

(2)   Child between 10 and 14—aggravated offence Any person who has sexual intercourse with a child who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years.

…

(5)   In this section, circumstances of aggravation means circumstances in which—

…

(d)   the complainant is (whether generally or at the time of the commission of the offence) under the authority of the accused person, or

…

(g)   the accused person took advantage of the complainant being under the influence of alcohol or a drug in order to commit the offence, or

….

24. It may be noted that the maximum sentence in respect of each offence is imprisonment for 20 years. It should also be noted that s 66C(2) only applies with respect to a child under the age of 14 years. One of the charges laid under s 61J (count 119) may have arisen (the charge identified a period spanning her 14^th birthday) when KS was between the ages of 14 years and 16 years, which was a period covered by s 66C(4) for which the maximum sentence was imprisonment for 12 years.

25. Importantly, for present purposes, the basis of the application was that the applicant had been misled by statements made by the trial judge at the commencement of the trial and after pleas of not guilty had been entered with respect to every count on the indictment. The procedural steps and the observations by the judge must therefore be identified.

26. On 27 June 2017, the jury was empanelled and the judge gave some brief instructions as to their function and obligations. The jury was then excused until the following morning so that other matters could be attended to. The judge then put on record a brief summary of the procedural history of the matter, noting that the applicant had originally been represented by a solicitor, Ms Gray. Ms Gray briefed counsel who had withdrawn shortly before the trial commenced “as a result of a conflict”. ^[1] Ms Gray continued to assist after she was unable to obtain alternative counsel. The applicant then being unrepresented, the judge explained the next stages in the process and arranged that he be provided with a list of charges broken down into their elements. In particular, the judge foreshadowed what directions the jury would be given in relation to consent, lack of which was an element of the s 61J offences of sexual intercourse without consent and with the applicant knowing that KS was not consenting. The judge continued: ^[2]

“That will include that consent involves [a] conscious and voluntary agreement on the part of the complainant to engage in sexual intercourse. It will include that part of the law which now says specifically that consent is negated where the person does not have the opportunity to consent because he or she is unconscious or asleep. It will also include that part of the law which says that consent may also be negated in circumstances where the person was substantially intoxicated by alcohol or any drug. Consent may also be negated where the person had sexual intercourse because of any intimidatory or coercive conduct, and consent may also be negated when a person has sexual intercourse because of the abuse of a position of authority or trust. So that document will be provided to you tomorrow.”

1. Tcpt, 27/06/17, p 47(30).

2. Tcpt, p 48(34).

27. There was no response from the applicant at that stage, and the Court reconvened the following morning, 28 June 2017.

28. The foreshadowed document was produced and a copy given to the applicant. The judge explained again the elements of the s 61J offence, and how that would be explained to the jury. Apart from that which had been explained the day before (and which he substantially repeated) the judge also stated: ^[3]

“That is, specifically, the law provides that a person does not consent to sexual intercourse if the person does not have the opportunity to consent to sexual intercourse, because the person is unconscious or asleep.

That may well be significant in this case. And the reason for that, of course, is that a person can’t consent in advance to some act of sexual intercourse. For example, a person can’t say, well, look, when I asked her on Tuesday if she would have sexual intercourse with me on Saturday, she said, ‘Yes’, but then on Saturday the evidence was that she decided not to consent. A person always has the ability, at the time of the act of sexual intercourse, to refuse consent. So that may well be significant in this case, because as I’ve indicated, the law provides that a person may not consent, the law provides that a person does not consent to sexual intercourse if that person does not have the opportunity to consent to the sexual intercourse because the person is either unconscious or asleep. That is the law.”

3. Tcpt, 28/06/17, p 2(39).

29. The judge outlined the elements of the other sexual assault offences, including the charges of aggravated sexual assault pursuant to s 66C(2) and s 66C(4), where lack of consent was not an issue.

30. The judge then referred to the importance of the applicant understanding those principles at the outset, because the prosecutor would open the case to the jury. The judge noted that the applicant would also have the opportunity to open. The explanation continued: ^[4]

    4. Tcpt, p 4(18).

“His Honour:   … The purpose of that at this stage of the trial in respect of you opening the case or indeed if there was a lawyer opening the case for you, judges will restrict a lawyer and will restrict you to identifying what are the issues in the case.

Now the difficulty I am having at this stage is if you intend to open for example in respect of those charges under s 66C(2) and (4), I’m unsure of what it might be that you would say concerning what the issue is concerning your guilt of those charges.

Accused:   I will not deny the facts of that, those things did occur.

His Honour:   Then why did you not plead guilty to them?

Accused:   This is the reason why I haven’t your Honour, there is a distinct difference of the manner and why this happened.

His Honour:   Well as I indicated to you yesterday it is rather unfortunate if you’ve pleaded not guilty only on the basis that you want to have some explanation given to the jury as to why something happened.

Accused:   At the end of the day your Honour when it comes down to sentencing if the circumstances are unique where the level of involvement from the young girl was beyond normal comprehension, she knew what she was doing, she was underage, yes, I understand but the videos clearly depict that she knew by even telling me to be quiet not to wake up her mother, clearly shows a level of consciousness on her behalf. It doesn’t change the act but it changed the intent of myself as the perpetrator. That’s the argument that I have.

…

His Honour:    Just pardon me for one moment, I’ve seen the particular difficulty for you then if that is the reason why you have pleaded not guilty to the majority of these charges if it is all about having some explanation being put before the Court concerning the circumstances in which the offences occurred, because that could also be done if pleas of guilty were entered and then we entered into the sentence proceedings and if that is an argument that you wanted to make to put it into a context that you say should have a bearing on an ultimate penalty, well it would be up to the sentencing judge, in this case me, to hear those arguments and to view the material to see if I believe that there [is] substance to those arguments.

Accused:   So your Honour if that’s the case, if I have the opportunity before yourself to be able to demonstrate to you how and why this all occurred, then your Honour can take that evidence on board and can consider all the other evidence from the case will you then hear me and then I will plead guilty to the acts because I have never denied these acts. Three and a half years ago I haven’t denied these acts. It’s never been in question. Except for the only other ones is I didn’t administer any intoxicating substance to [KS], and I didn’t administer any intoxicating substance to [RL] and I certainly didn’t touch [JS] and those will go to trial.”

The judge further explained to the applicant that he was “not in a position of being able to advise you … I can only highlight certain things to you”. ^[5]

5. Tcpt, p 5(47).

31. Following some further discussion, the judge indicated that the jury would be brought back and the indictment would be read again to allow the applicant to plead guilty to the charges in respect of which he agreed he had no defence. That course was taken the following morning.

32. The applicant, having noted that no such application was made with respect to the offences under s 61M(2), submitted: ^[6]

“However, the issue in regards to the 61J offences the Crown had to prove knowledge that the complainant was not consenting, when by reason of age the appellant was aware that she could not consent.”

6. Applicant’s written submissions, 18 October 2021, ground 32, p 2.

33. As is perfectly clear from the explanation given by the trial judge extracted above, two separate factors were identified as relevant to the question of consent. First, with respect to the charges under s 66C, the question of consent did not arise because, as a result of the complainant’s age, she was legally not capable of consenting. Secondly, with respect to the charges under s 61J, the judge’s comments as to incapacity were expressly directed to the fact that in each case the prosecution was asserting that the complainant was sedated or, as the applicant asserted, asleep. That she was not conscious was amply demonstrated by the video clips. Those offences did not turn on the legal capacity of the complainant to give effective consent. Accordingly, the judge’s comments were entirely correct as a matter of law and it appears that the applicant so understood them at the time. The assumption underlying ground 32 (namely that consent was vitiated by age) misrepresented the judge’s statements. Accordingly, the legal basis for the application to withdraw the pleas did not arise; nor was there any evidence of a misunderstanding as to the law at the time the pleas were entered. Ground 32 was untenable.

Apprehension of bias

Background observations

34. Where it is established that a tribunal is infected by a reasonable apprehension of bias, the judgment or determination must be set aside and the process repeated. Because the decision is legally ineffective, the proper course, where bias is alleged, is to address that question before addressing any other grounds of appeal. ^[7]

    7. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2] (Gummow ACJ), [117] (Kirby and Crennan JJ), [172] (Callinan J).

34. There are potentially a number of grounds for establishing an apprehension of bias: in the present case the ground was prejudgment, based on statements made by the judge in the course of the trial. That ground is tested by asking, hypothetically, whether a fair-minded, non-lawyer observer, with some knowledge of the trial process and hearing what was said in that context, might reasonably think that the judge might not determine whatever needed to be determined impartially having regard to the evidence. ^[8]

    8. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11].

35. The first point to be noted is that the trial judge was not the tribunal of fact in relation to the determination of the guilt of the applicant. On the other hand, he was responsible for determining the appropriate sentence. However, at least in respect of the conviction appeal, the expression of an opinion by the trial judge (by words or conduct) will generally only be relevant if made in the presence of the jury and thus likely to influence the judgment of the jury. In theory it can also affect decisions as to the admission of evidence or other legal rulings by the judge, but that possibility did not arise in the present case.

36. The submissions in support of ground 1 were discursive, covering 145 pages. References to events in the course of the trial were interspersed with lengthy extracts from judgments in other matters. An index was provided which identified 56 events during the course of the trial, although there was a degree of overlap and some of the particulars summarised other issues. Quite a number of the particulars identified matters which were the subject of separate grounds of appeal. These will be separately addressed below.

37. The applicant’s primary written submissions were supplemented by five pages (identified as ground 1A) adding a further particular of prejudgment, namely that the judge had asserted the applicant had “groomed” KS before any evidence had been presented to the jury.

38. Importantly, such complaints are to be addressed having regard to the circumstances of the trial. A number of matters were pertinent. First, because the applicant was unrepresented, the judge was obliged to provide explanations to him as to the course of the trial, and the steps he could take at various stages, both before and during the hearing. Secondly, while the judge was aware of the prosecution case, he was not fully aware of the case the defence would run. Nevertheless, as is commonplace in such circumstances, he engaged with the applicant in order to be able to provide him with relevant information. Thirdly, it was important to distinguish between discussion with the applicant in the absence of the jury and exchanges which took place in their presence. It was most unlikely that the former would lead to unfairness in the conduct of the trial. As to the latter, the judge was required to rule on objections as they occurred.

39. Such occasions not infrequently arise when a witness is being cross-examined by or on behalf of the accused. Questions may be formulated in terms which contain assumptions or hidden ambiguities. On a number of occasions, the judge intervened to reformulate questions. Where there was no apparent prejudice in doing so, that was done in the presence of the jury. Where there was a need for the judge to explore the matter being raised in more detail, it was on occasion done in the absence of both the jury and the witness. Such events are both necessary and commonplace in the course of criminal trials.

40. Excessive interference in the conduct of a trial can lead to an unfair trial, whether or not it leads to an apprehension of bias. It is usual to see far more interventions in the cross-examination by an unrepresented litigant than in circumstances where counsel is conducting the cross-examination. In respect of the cross-examination of KS, a legal representative was appointed, in accordance with usual practice, who asked questions provided by the applicant. When the questions became repetitive and were rejected, the lawyer, Mr Boutros, enquired whether he should exercise his discretion and not ask the question. On other occasions, the judge reformulated the question for the witness to answer.

41. It is, of course, possible that a series of interventions by a trial judge, each justifiable in its own terms, may cumulatively give rise to a reasonable apprehension on the part of a lay observer that the judge may have prejudged the guilt of the accused. However, it is necessary to bear in mind, as noted above, that the judge is not the fact-finder in a trial with a jury and that there are occasions in the course of a trial with an unrepresented accused when the judge may feel it necessary to have a robust discussion with the accused in relation to the conduct of the trial. Where possible, that will be done in absence of the jury and the lay observer would understand that that is done so that the jury will not hear the substance of the discussion.

42. Finally, it is necessary to observe that a trial judge has an important, but sometimes difficult, job of ensuring a fair trial in circumstances where the unrepresented accused, perhaps having his or her own agenda, may not appreciate what appears to the judge to be a self-destructive course.

Prejudgment – ground 1A (reference to grooming)

44. It is convenient to start with ground 1A, which was a complaint that the judge had formed a view that KS was groomed before evidence was called.

45. The observation relied upon arose in a context which has been partly explained above. It occurred on 28 June 2017 at which time the judge was clearly informed as to the nature of the case and had prepared a document setting out what the prosecution was required to prove. After a lengthy statement by the trial judge, the applicant said, “I will not deny the facts of that, those things did occur”. He then described some of the matters shown on the videos. ^[9] In the course of the further discussion, the judge expressed an appreciation of the applicant’s position and the basis on which he declined to plead guilty to the charges which he appeared to admit. It then became apparent that the applicant was concerned as to what the judge would rely upon during the sentencing proceedings were he to plead guilty. He referred to the “relationship” with KS which he wished to portray as consensual. The following exchange then took place: ^[10]

“His Honour:   Well, I think the Crown’s, I’m only drawing an inference from what I’ve read so far, that the Crown’s response to that would be, the reason why she was that way, was because you had groomed her to think that this behaviour was acceptable.

Accused:   Your Honour, they have no evidence of grooming, and her, her two recorded interviews, and a statement made 18 months later as an 18-year-old adult, negate that. They [say], not one bit of grooming. I simply abused her in the worse possible way.

His Honour:   Yes, but that’s what grooming is, is when you start touching a child from a young age. That is what grooming is.

Accused:   Even how it started, your Honour, is not, just, because that’s how the victim says it started, that’s not how it started. She gives, there’s two different accounts, your Honour.”

9. Tcpt, 28/06/17, p 4(42).

10. Tcpt, p 7(1).

46. There was nothing in this exchange which would have suggested to the lay observer that the judge had formed a firm view as to an aspect of the matter, which was not, in any event, relevant to the question of guilt or innocence. The judge recognised that and returned immediately to the topic of whether pleas should be entered. The applicant then said: ^[11]

“Accused:   At the end of the day, am I able to put my case forward regarding the mitigating circumstances of why these events occurred. And then obviously her level of complicity. Your Honour can make the decision whether she was groomed or not.

His Honour:      Certainly, Mr Crown, I’m able to do that.

Crown Prosecutor:   Yes, certainly and that can be done after pleas are entered. Yes, certainly. …

His Honour:   Mr [TS], then, if you have the ability to, on the sentence proceedings, to raise all of those issues, and in effect, to direct my attention to the actual evidence, which is no doubt what you’re saying you want to have done.”

11. Tcpt, p 7(21).

47. To suggest that the reasonable lay observer might have inferred from this exchange that the judge might have formed a firm view as to the issue of grooming or otherwise is without substance.

Excessive interference – ground 1

48. It is convenient to turn next to the complaints of excessive interference in the applicant’s cross-examination of witnesses. As will be explained further below, it was part of the prosecution case that the applicant had used a meat tenderiser to crush up Travacalm (travel sickness) tablets in order to sedate his wife. The source of that information was KS. It was part of the applicant’s case that the police had failed adequately to investigate the claim because officers present at the applicant’s home on 13 January 2014, when he was arrested, did not take the meat tenderiser for examination. Accordingly, there was a question as to whether KS had told them about the use of the meat tenderiser on the evening of 13 January or not until her recorded interview on 14 January. At trial, KS gave evidence over three days. On the third day, being the sixth day of the trial, she was asked in cross-examination: ^[12]

“Q   [KS], on the night of 13 January 2014 did you tell New South Wales Police that your dad was giving mum Travacalm and crushing it up with a meat hammer or tenderiser?

A   Yes.”

12. Tcpt, 05/07/17, p 252(7).

49. KS was then asked to identify whom of some seven officers she had told; she said “yes” to Detective Darley’s name. After she had denied remembering who the others were, the judge asked the following question:

“Q   Just to be clear, you’ve acknowledged that you told police in relation to what was read out to you a few moments ago about the Travacalm being [crushed] up.

A   Yeah.

Q   In fact, you’ve had portions of your interview read out to you yesterday.

A   Yeah.

Q   It’s an interview that you took part in on the 14th, the day after you disclosed to mum.

A   Yeah.

Q   That specific question was whether on the night that you disclosed, the 13th, when police came, did you have any conversation with them on that night about Travacalm?

A   I only spoke to Jason [Darley]. Jason and there was someone else with him but I can’t remember the name.

Q   You spoke to them but did the conversation go to Travacalm on that night?

A   I don’t, I don’t remember if I spoke about the Travacalm that night.”

50. The intervention may have been adverse to the applicant’s interests, although it is by no means clear that it would have been significant. The questions earlier in the cross-examination and immediately thereafter demonstrated that KS was unclear as to when she had spoken to the police about particular issues. There being no record of the conversation on 13 January 2014, some three years earlier, the judge may have been concerned that her simple affirmative answer, “yes”, might have been misleading. The issue, which had been identified in the absence of the witness and the jury, was that KS told the police “different versions on different days of her knowledge of Travacalm” and “hasn’t been consistent”. ^[13] There followed a lengthy debate with the applicant as to whether her evidence was in fact inconsistent. The lay observer would likely have identified the judge’s intervention as intended to clarify an answer in order to reveal whether there was any degree of inconsistency.

    13. Tcpt, p 210(3).

51. There were other examples of intervention in the cross-examination of KS, on many occasions there being discussion as to the purpose of the question and precisely what was sought to be asked. On some occasions the judge rejected the question; on other occasions the judge reformulated the question. There was a significant degree of repetition in the questioning which led the questioner, Mr Boutros, to enquire: ^[14]

“Boutros:   Your Honour, just for my peace of mind, if I see something that I feel that has been repeated, shall I just bypass it automatically, or just read?

His Honour:   You can raise it with [TS] to see if he wishes to ask that question, yes.”

14. Tcpt, p 197(37).

52. Another example of which the applicant complained was the rejection of the following question: ^[15]

“Q   [KS], also when you were 11, you made up a story about a child being kidnapped, tell this Court what you did?”

15. Tcpt, p 200(29).

53. The prosecutor objected and the judge rejected it on the grounds of relevance. The applicant then sought to discuss the issue and the jury and the witness were asked to leave the courtroom. The applicant then sought to justify the question on the basis that it went to the credibility of the witness and was therefore relevant to how the first two charges came about. He submitted that “[i]f [KS] was capable of lying at 11 before anything else happened, then she was certainly capable [of] lying about the first two incidents that this occurred”. ^[16] The judge maintained his ruling that the question was irrelevant.

    16. Tcpt, p 201(19).

54. In fact, the events the subject of counts 1 and 2 were not denied by the applicant, but only the circumstances as to how they came about, the applicant contending that KS, then 12 years of age, was the instigator. The following exchange then took place: ^[17]

“Accused:   This line of questioning is [KS’] knowledge of Travacalm, would that be relevant?

His Honour:   Well of course it is. I’ve allowed you to ask any questions in relation to that issue, thank you, I’ll have the jury brought back in please.

Accused:   Can I have the question, if you wait a second I’ll quickly go through it.

His Honour:   Yeah, go through those.

Accused:   Your Honour, this whole next series relates totally to Travacalm.”

17. Tcpt, p 202.

55. It is undoubtedly correct that there were numerous interventions by the trial judge in the cross-examination of KS. Whether or not a lay observer would have thought the judge was excessively interventionist is an open question: however, the transcript provides no basis upon which to conclude that the lay observer might think the judge might be prejudging the guilt of the applicant. Each issue was addressed with a focus on the evidence, the issues at the trial and the degree of repetition.

56. The applicant gave evidence, his evidence-in-chief being taken by way of questions asked by an independent agent. The interventions were more limited, although, as the trial judge pointed out, some matters concerning KS had not been raised with her in cross-examination, ^[18] and many of the questions were leading questions, but were not dismissed on that basis. ^[19] Having given details of the ages of the children in the family, the ensuing question was: ^[20]

“Q   So, essentially [KS] acted more like a mum because [RL] was so busy trying to build her career-development business?

A   That’s correct.”

18. Tcpt, p 560(30).

19. Tcpt, p 561(10).

20. Tcpt, p 562(4).

57. The judge intervened to clarify what was meant by the question and answer, although entirely helpfully to the applicant.

58. The applicant was permitted to give evidence as to the first incident between himself and KS, stating that “just out of the blue [KS] just put her hand out and grabbed me on the penis and said, ‘cock grab’”. ^[21] The judge noted that this had not been put to KS, but the applicant was allowed to give the evidence about it in some detail. The same occurred in relation to a second incident, alleging that KS had no clothes on and had asked the applicant to kiss her vagina. ^[22] The applicant also gave evidence that KS had seen him and RL having sex. ^[23] Again, the matter was not put to either KS or RL.

    21. Tcpt, 11/07/17, p 562(24).

    22. Tcpt, p 563(30).

    23. Tcpt, p 563(38).

59. There was one matter where the judge did intervene when it was put by the applicant’s agent that RL had asked him in front of KS, “are you sleeping with your dad?”. The question was ineptly framed, but clearly indicated a question by RL to KS in front of the applicant. The judge interjected, not for the first time: ^[24]

    24. Tcpt, p 576(28).

“Q   Once again, this is put to nobody, correct?

…

Q   We’re hearing about it now, is that right?

…

Q   No, it wasn’t put to any witnesses, is that right?

…

Q   I’ve given you every opportunity during the course of this trial and I’ve cautioned about putting everything to the witnesses upon which you would ultimately wish to address an argument to the jury, haven’t I?

A   Isn’t the jury able to determine whether – if I’m telling the truth?

Q   Next question.

…

Q   When [KS] was 16 did she ask you if you were still sleeping with mum?

A   Yes, she did.”

60. The intervention was in fact mistaken; in fact, the judge had been involved in the questioning. Both questions were asked of KS in the following passage: ^[25]

    25. Tcpt, p 158(5).

“Q   [KS], you were so close to your stepdad you even asked him, when you are 16, ‘Are you sleeping with mum?’

A   No.

Q   When you were 16, in your mum and dad’s bedroom, wearing a pair of undies and singlet top, your mum asked you calmly, ‘Are you sleeping with your dad?’

A   No.

His Honour:

Q   It has been suggested to you that when you were about sixteen, you were in your undies and a singlet top, and your mother asked you that question. Do you understand that was being asked of you?

A   That she asked me if I was sleeping with—

Q   You understood the question?

A   I understood the question.

Q   And you said no, that didn’t happen?

A   Yeah.”

61. The judge’s intervention (about which the applicant separately complained) duly resulted from a perceived ambiguity as to whether the answer, “no”, related to being asked the question by her mother, or the answer she gave to her mother. There was nothing inappropriate in the intervention. However, it appears to have been evidence which the judge had forgotten when the applicant gave evidence of such a question being asked.

62. While the judge was mistaken, and it may be assumed that the hypothetical lay observer would have noted the error, there is no possibility that such an observer would have inferred that the judge might have intervened because of a prejudice against the applicant.

63. It has been necessary for the Court to read most of the transcript of the trial (of some 700 pages), both to deal with the large range of grounds, including the particularised claims of apprehended bias, and in order to determine whether the verdicts were unreasonable and unsupportable on the evidence. It is therefore appropriate in this context to record some general observations in relation to the manner in which the trial proceeded.

64. First, although the applicant was unrepresented and not legally trained, as the judge noted, he was clearly a person of some intelligence. Secondly, his inexperience in formulating questions, cross-examining witnesses and giving evidence, combined with his own intimate knowledge of the details of the family, frequently led to situations where the trial judge was required to intervene. The overall impression from reading the transcript is that the interventions were generally appropriate, explanations were given to the applicant and, although most frequent in relation to the evidence of KS, the interventions were reasonable and measured. The submission that a hypothetical lay observer might at any stage have formed the view that the judge had revealed a prejudgment as to the guilt of the accused was misconceived. In dealing with a jury trial, the element of prejudice must be assessed by reference to the fairness of the trial and the impression which the jury might have obtained. Indeed, the appropriate test of apprehended bias in such a case may best be understood by considering the position of the reasonable juror and whether he or she might have apprehended that the judge might have formed his own opinion as to the guilt of the accused. It is, of course, well-understood that juries may look to the judge for inadvertent indications of whether a witness should be believed or not and whether the accused is guilty as charged, and juries are routinely advised not to take any notice of such perceived views of the judge as to the facts.

61. However the matter is tested, there is no basis to grant leave with respect to grounds 1 and 1A.

Procedural unfairness

66. It is convenient to deal at this stage with claims of procedural unfairness so far as they are able to be isolated. By way of explanation, there was a claim of procedural unfairness in relation to the evidence of the pharmacologist, Mr Farrar, which is combined with a challenge to the admissibility of parts of his evidence which will be dealt with below.

Denial of fair trial – grounds 2(i)-(iii)

67. The substance of ground 2, as particularised by the applicant, was that the trial judge failed to:

1. advise the applicant of his procedural rights;

2. grant an adjournment to obtain legal representation at his own expense;

3. give adequate time for the applicant to prepare his defence; and

4. prevent the prosecutor from making a closing address that was forceful and prejudicial to the applicant.

Ground 2(v) asserted that each of these “irregularities” was sufficient, by itself and cumulatively, to deny the applicant a fair trial.

68. The frequency with which persons accused of serious criminal trials have, either through choice or want of available representation, defended themselves means that the role of the trial judge in such circumstances has been the subject of frequent restatement. While the obligation to provide information, but not to advise the accused, has already been adverted to, it is convenient to set out the well-known statements of the principles.

69. In MacPherson v The Queen ^[26] Gibbs CJ and Wilson J stated:

“The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. He must accordingly exclude evidence tendered against the accused which is not shown to be admissible. Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for.”

26. (1981) 147 CLR 512 at 523; [1981] HCA 46.

70. Mason CJ stated, at 534:

“Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of a confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it, he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.”

71. MacPherson was concerned with the voluntariness of a confession; the principles stated are, however, generic. While the principle is well-established, there is, inevitably, flexibility in its application. Its application is bounded by three considerations. One is that the judge cannot be an advocate for the accused and must maintain a position of impartiality. Secondly, the judge’s ability to assist will be limited by his or her knowledge of the circumstances. There may be occasions, as occurred in the course of this trial, where the accused appears set upon a course which may not be in his or her interest with respect to obtaining an acquittal. Through inadvertence, inexperience, or a focus on other matters, an accused may, through cross-examination or adducing evidence, bolster the prosecution case in a manner not available to the prosecution. That may occur in circumstances where the evidence is not only technically inadmissible, but potentially prejudicial. Thirdly, as recognised by Mason J in MacPherson, the obligation of the trial judge is to do whatever can be done to ensure that the patience of the jury and the efficient disposal of public resources are not depleted through unnecessary and irrelevant cross-examination or tender of evidence.

72. Any consideration of the manner in which the trial judge dealt with the applicant should commence with a consideration of the hearings which occurred on 15 August 2016 (when there was an application by the accused to vacate the trial date set for a week hence) and a second hearing on 2 November 2016 when a trial date of 5 June 2017 was confirmed. There were further pre-trial hearings on 5 June, 6 June, 13 June, 15 June, 19 June and 27 June 2017, when the jury was empanelled. Prior to empanelment, when it was apparent that the applicant would be unrepresented, although he was still assisted by his solicitor, Ms Gray, the judge took the applicant through the charges in order to understand whether the foreshadowed pleas would be entered and, if not, the basis upon which the applicant was resisting that course. (The key elements of the assistance have been set out above.) On 27 June there was further discussion of the charges, following which the judge gave standard directions to the applicant as to the onus of proof, the judge’s role and that of the jury in the trial, and how the Court would proceed, in the absence of the jury, in debating issues of law or evidence. [27] The instructions included an explanation of the process of empanelling the jury, the opening by the prosecutor, and the fact that the accused would then also have the right to address the jury. The judge explained the purpose of the opportunity for the accused to open and, at the end of the explanations, expressed some concern as to what the accused would say if he did open his case. [28] In the course of explaining the court procedure, the judge stated: [29]

“You are, of course, under no obligation to address the jury at the start and, in fact, on many occasions persons who are legally represented their counsel make the choice not to address the jury at that time. They wait until all of the evidence is concluded and once all the evidence is concluded, of course, the Crown address the jury to make arguments or comments on the evidence that’s been heard and that’s when counsel would usually give a final address to the jury and you would be able to do that.”

27. Tcpt, 27/06/17, pp 3(42)-4(50).

28. Tcpt, pp 5-6.

29. Tcpt, p 4(38).

73. After discussing the possible bases upon which the applicant was proposing to plead, the judge returned to discuss the empanelment process. [30] The explanation concluded with the following statement: [31]

“As you are aware, once we get into the trial – and I will have more to say about the process as we move on – clearly, in respect of these offences, you will not have the ability to ask questions yourself of the complainant or complainants. That will have to be done through somebody that’s going to assist you for that purpose, but I will [talk] more about that a little later. I will adjourn for some time to allow Mr Park to have a conversation with you.”

30. Tcpt, p 8(23)-(40).

31. Tcpt, p 8(42).

74. Mr Park, it appears, was there to assist the applicant with the empanelment process. The applicant then asked a number of questions concerning the elements of the charges of administering an intoxicating substance.

75. Following a short adjournment, Mr Park advised the Court that there was a possibility of pleas to some charges and sought time to explore the matter further with the applicant. The judge was troubled that there had been ample time to do that and determined that the empanelment of a jury would take place that afternoon, but the jury would be sent home without any further activity so that pleas could be taken the following day.

76. Following the empanelment of the jury, the trial judge gave the usual explanation to the jury of their role in the proceedings and the jury were then discharged for the day. The judge, in discussions with the prosecutor, turned to the procedural history, which has been noted above. The judge recorded that the committal for trial occurred on 25 November 2015, some 19 months before the date on which he was hearing the matter. An indictment was presented on 4 February 2016, at which time the applicant was not arraigned, but had counsel appearing for him. Counsel continued to appear for him over some 16 months, until counsel sought leave to withdraw on 6 June 2017.

77. On the afternoon of 27 June, the judge indicated that he would address some further comments to the applicant “in relation to the process specifically in respect of the Crown calling witnesses and your ability to be able to, through a representative, ultimately ask questions of the complainants”. [32] On the following morning, the judge provided a document which contained the elements of the various counts, noting that, in consultations with counsel and his solicitor, no doubt the applicant had already been through those matters. Nevertheless, the judge’s explanation proceeded over some two pages of transcript. [33] There was further discussion as to the pleas and the explanations given by the applicant as to his position in relation to the charges generally. It became clear that, in relation to the 22 charges of administering an intoxicating substance to KS were to be determined by the jury, as the applicant was asserting that KS was asleep and not drugged. Counts 1, 2 and 4, concerning KS but not supported by video recordings, were also to be determined by the jury, as were all the charges involving RL and JS.

    32. Tcpt, p 48(48).

    33. Tcpt, 28/06/17, pp 2(28)-4(26).

78. The jury then returned and the applicant entered pleas in the terms which have been discussed above. The jury then returned, and the applicant was re-arraigned. After the re-arraignment and in the absence of the jury, the trial judge explained to the applicant how he might open his case, cross-examine the witnesses called by the prosecution, object to evidence being led or tendered and give evidence himself if he elected to do so. The judge explained further to the jury how the process of the trial would operate, matters which must also have been heard and digested by the applicant. At the beginning of his explanation, the judge noted that both the prosecution and the applicant would require some little time to consider how to proceed in relation to the remaining charges of not guilty. [34] There followed an opening address by the prosecutor, which again directed the attention of those in court (including the applicant) to the case which was being presented. The applicant then addressed the jury by way of opening, with only one interruption from the trial judge. The evidence then proceeded, with the investigating police officer being called by the prosecution.

    34. Tcpt, p 21(13).

79. In summary, the steps taken by the trial judge up to that point to ensure that the applicant had a full understanding of the nature of the case brought by the prosecution, in full awareness of the extensive opportunities that the applicant had had to obtain legal advice, undoubtedly fulfilled the obligation of a trial judge dealing with an unrepresented accused. The exchanges with the accused demonstrated that he was able to ask questions to clarify issues, particularly in relation to the elements of the alleged offending. Not only could there be no complaint of inadequate assistance up to that point, but the further complaints which are made must be viewed in the light of what had occurred to that point.

80. On Monday, 3 July 2017 (the fourth day of the trial) the applicant began his cross-examination of the investigating officer, Detective Senior Constable Darley. At his request, the Court took a short break to allow him to organise his papers. [35] When the jury returned and cross-examination continued, the applicant sought to ask questions about the production of an Apple iPad which was said to be found in the course of the search of his premises, which he asked to be brought to court. The judge suggested he ask a question in relation to a statement by KS that something had been recorded on an iPad and he responded, “if the iPad’s not here then I can’t ask the question”. [36] At the applicant’s request, the jury was excused so that he could speak to the judge. In the absence of the jury, he said: [37]

“Your Honour, it appears that I can’t think clearly or straight[.] Chris, my friend, is trying to get legal representation for me rather than do it myself.”

35. Tcpt, 03/07/17, pp 78-79.

36. Tcpt, p 82(28).

37. Tcpt, p 83(5).

81. The reference to “Chris” was to Mr Chris Elias, a clerk from the solicitor’s office who had been in court on a number of occasions assisting the applicant. The judge then said in response:

“Well at this stage we’ve got to press on because I’m not going to delay the trial further. I should have possibly in hindsight come back on here at morning tea and asked whether I could assist you with focusing on the type of questions that you want to ask this officer. I probably should have done that and I’m prepared to do that now. For example, if you indicate to me that you wanted to make some suggestion about items that are not before the Court and look, by the way, do you want me to ask the officer to stand down at the moment?”

82. The discussion between the applicant and the judge, with contributions from the prosecutor, continued over some nine pages of the transcript. To the extent that the applicant complains about the refusal of an adjournment to obtain legal representation, the procedural history of the matter sufficiently demonstrates that the judge was entitled to take the view that (i) there had been reasonable opportunities to obtain counsel and (ii) a further opportunity was unlikely to produce the desired result. It was not a situation in which the trial miscarried because a further adjournment was not permitted. It is apparent that the applicant was then seeking private representation, apparently having been refused legal aid. There is no evidence that he was indigent.

83. Grounds 2(i)-(iii) were without substance and provided no sufficient basis for a grant of leave to appeal with respect to those issues. Ground 2(iv) will be addressed below.

Exhibit EE – ground 2(i)

84. An additional aspect of ground 2(i) filed on 22 June 2022 made specific complaint about the failure of the trial judge to inform the applicant of his procedural rights to object that Ex EE was obtained improperly or unlawfully. It is convenient to address it before turning to ground 2(iv).

85. Exhibit EE was both a recording and a transcript of the recording of a conversation on 13 January 2014, involving the confrontation between KS and the applicant in the presence of RL, and a subsequent conversation between KS and her mother after the applicant had left. Both were recorded by KL on her iPhone. If the recordings were unlawful, it was because they contravened s 7(1)(b) of the Surveillance Devices Act 2007 (NSW), which makes it unlawful to use a listening device to record a private conversation to which the person is a party. However, there was no offence under s 7(1)(b) if RL, as a principal party to the conversation, recorded it and it was “reasonably necessary for the protection of [her] lawful interests” or the recording was not made “for the purpose of communicating or publishing the conversation … to persons who are not parties to the conversation”: s 7(3)(b).

86. With respect to the first conversation, there is no doubt that RL consented to the recording: she made it. If the applicant and KS were aware of the conversation being recorded on the iPhone, their consent would be implied. The evidence did not reveal whether or not they were aware. Nor was there any evidence that RL made the recording for the purpose of communicating or publishing it to others. However, it was clear from her evidence that she made both recordings at a time when she was suspicious of the relationship between the applicant and KS and, as she said during the first recording, thought that KS was alleging that she had been sexually abused by the applicant. As the recipient of information that serious crimes had been, or might have been, committed, it is clearly arguable that the exception in s 7(3)(b) applied, on the basis that, if no complaint or confession were forthcoming, she would not have intended to provide the recording to any other person, but that if it were, she would be compelled to take the matter to police and would need to be in a position to justify taking such action. It was therefore justified in order to protect her own interests.

87. No doubt it is true that these matters might have been pursued had the trial judge informed the applicant that there was a possible argument that the recording was unlawfully obtained. However, a perusal of the transcripts would have immediately revealed that nothing was disclosed in those conversations which had not been admitted by the applicant. At no stage did he deny having a sexual relationship with KS while she was under the age of 16 and under his special care. It was not the function of the trial judge to advise the applicant about possible legal bases for objecting to the tender of Exhibit EE which had no practical bearing upon the resolution of the issues in dispute at the trial.

88. Further, it was not correct to say, as the applicant submitted, that the evidence was inadmissible. Even if it were improperly or unlawfully obtained, its admissibility was dependent upon different principles. The evidence, so far as it was relevant, involved a complaint by KS to her mother that the applicant had been drugging her mother to allow him to have a sexual relationship with her (KS), which the mother would not discover. That evidence was relevant and admissible as evidence of complaint in circumstances where the applicant’s defence was not that RL was not drugged, but that she was drugged by KS. That was an issue explored by the applicant in his cross-examination of KS. The early complaint was admissible under s 66 of the Evidence Act 1995 (NSW) and as evidence to re-establish the credibility of KS in the face the challenge to her evidence that the applicant was drugging RL, pursuant to s 108(3) of the Evidence Act.

89. Somewhat curiously, the applicant also complained that the judge gave inadequate directions concerning the recordings, referring to RL’s evidence of the recordings “without referring to the actual recordings themselves”. [38] In fact the judge reminded the jury both of specific passages in her evidence which were not the subject of recording and some which were. [39] In fact, the recorded evidence was little more than background to a critical conversation in which she telephoned the applicant and gave the following evidence as to the conversation: [40]

“It was very short but I called him and said, ‘How can you do this?’ and … I said, ‘You’ve raped [KS] and you were drugging me’ and he said to me, ‘Everything [KS] has said to you is true’, and he hung up.”

38. Applicant’s supplementary submissions, ground 2(i), par 17.

39. Summing up, pp 52-53.

40. Tcpt, 06/07/17, p 322(20).

90. There would need to be a clear case of a potentially serious miscarriage of justice to justify challenging verdicts some five years after the trial, in circumstances where the applicant had had the benefit of legal representation before the trial, and the opportunity to obtain legal aid after the trial. That justification is notably missing in this case. An extension of time should be refused.

Permitting the prosecutor to give a closing address to the jury – ground 2(iv)

91. There was a degree of equivocation in ground 2(iv) as to whether the applicant was suggesting that the trial judge should not have allowed the prosecutor to make a closing address, or that he should have controlled what the prosecutor was saying to prevent it being forceful and prejudicial to the applicant. However, neither in the written submissions nor in the course of oral argument (where the issue was very briefly touched on [41] ) did the applicant identify in what respect the prosecutor addressed in terms which were prejudicial. It may fairly be said that the address was forceful, if that means persuasive, but that was a function of an extremely strong prosecution case.

    41. CCA Tcpt, 29/06/22, p 41(45)-(49).

252. It is clear from those passages that KS was endeavouring to explain that she did not know how to reach out for help because the applicant had “groomed” her to accept what was happening between them. She had said earlier in her evidence that, although she did not want to do the things she was shown to have done with the accused in the videos recording sexual activity whilst she was asleep, she had come to accept her conduct and his because there was nothing she could do, or felt she could do, to stop what was happening. She said, “[i]t just became like a – like a regular thing, like – it was like I didn’t have any, like choice in it really. It was just – it became like a routine”. [137]

     137. Tcpt, 03/07/17, p 122(43).

253. For the applicant to continue to reassert in his submissions on sentence that he had not groomed KS to have sexual intercourse with him and that she was a “willing” participant, was to show a complete lack of insight into his offending, contradicting any suggestion he is genuinely remorseful.

254. The applicant also sought to rely upon a three-page letter addressed to KS as demonstrating his remorse. The letter was not sent: it contained paragraph numbers which placed it squarely within the category of written submissions.

255. The offending covered by the 130 convictions for which he was to be sentenced occurred over a four-year period. Although the applicant stated on more than one occasion during his trial that he was ashamed of his conduct and understood it was wrong, he also maintained at trial that KS was the instigator of the sexual activity attributed to him as sexual offending. He attributed to her responsibility for sedating her mother so that the sexual intercourse in which she was a willing and active participant could continue. The applicant continued to seek to attribute responsibility for his criminal conduct to others, including his wife, by making unsubstantiated claims of abuse, controlling behaviour and domestic violence he claimed to have suffered in the family home.

256. The applicant asserted that the judge did not take into account “the domestic abuse and control” exerted by his wife, RL. He characterised this as “domestic violence which contributed to his depression and the wayward sexual behaviour”. The applicant’s repeated claims about the roles played by both KS and RL as instigating or participating in his criminal behaviour do not aggravate the objective seriousness of his offending as a matter of law, but they diminish any suggestion that he had insight into his offending. It is clear, he did not.

Delay

258. The applicant described himself as being sentenced “for a stale crime”, but that characterisation should not be accepted. It was not one crime, and the conduct was not stale. His offending involved multiple offences committed over a four-year period. At the time he was arrested and charged on 14 January 2014, that offending was not “stale”, in fact, the last offence was committed on about 7 January 2014 when he administered to his wife an intoxicating substance with the intention to have sexual intercourse with KS. The last occasion on which the applicant had sexual intercourse with KS was merely days prior to 13 January 2014.

259. The applicant’s underlying complaint was that there had been a delay between the date he admitted his sexual abuse of KS in February 2014 and the time of sentence on 22 November 2017. Some weight may be given to the fact that the applicant was in custody awaiting trial for more than three years. However, there was nothing to suggest that that delay, whilst unsettling, should be attributed to the prosecution. There is nothing in the materials to indicate that he had at any time earlier than the presentation of the indictment on the first day of the trial, formed a firm intention to enter pleas of guilty to 99 offences, which might then have been the subject of separate sentencing proceedings before the balance of the offences were listed for trial.

Discount for pleas

260. It is convenient to address first the appropriate discount with respect to the 99 guilty pleas entered by the applicant at the commencement of the trial. The judge gave careful consideration to the discount, having regard to the procedural history which has been outlined above. He correctly described the pleas as “late pleas”. [138] He later described them as “very late” pleas. [139] He nevertheless concluded that there was a significant utilitarian benefit which warranted a discount of “about 15%”.

     138. Sentencing judgment, p 31(23).

     139. Sentencing judgment, p 33(7).

261. For two reasons, 15% should be considered a generous allowance. First, the applicant’s prevarication continued throughout a lengthy period when he had legal representation and continued until the day before the commencement of the trial. Secondly, he maintained pleas of not guilty to all the charges of administering an intoxicating substance, thus requiring that the videos, which were the primary evidence of both the sedation offences and the sexual offences, to be played to the jury. KS was required to give evidence. The utilitarian benefit of the pleas to the sexual offending was therefore quite limited. Yet the discount was 60% of what is generally regarded as the top of the range. [140] Although the applicant asserted in his written submissions (ground 25) that a discount of 25% should have been applied on each of the indicative sentences on the 99 counts to which he had pleaded guilty, there was no basis for a discount of that order given the timing of the plea.

     140. R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309.

262. There was more substance in ground 17, which noted that the trial judge did not specify a starting point and that, if one were calculated by reference to the discount, at least some of the indicative sentences might be regarded as excessive. The ground suggested that the sentence for count 2, which attracted no discount was the same as for similar offences the subject of pleas. The appropriate indicative sentences will be dealt with shortly.

Early offending: counts 1 and 2 against KS and 131 and 132 against JS

263. It is convenient to commence with the earliest offending, namely counts 1 and 2. Count 1 dealt with an occasion when the applicant came up behind KS (then aged 12 years) and started touching her on the chest on top of her clothing. He continued for a short while and then stopped. The judge regarded this act as falling at “the lowest end of the scale of objective seriousness”. [141] That assessment should be accepted. Had that been an isolated offence, it would not have warranted a custodial sentence. However, it was not an isolated offence and was not to be dealt with in isolation. While it was the first charged offence of a sexual nature, progressively more serious offences were committed in June and July 2009, including a multiplicity of serious sexual offences after the applicant had first administered to KS an intoxicating substance in June 2009. Count 1 was not the subject of a plea and, accordingly, no discount applied. A fixed term of 7 months should be indicated for count 1.

     141. Sentencing judgment, p 5(1).

264. Count 2, a charge under s 66C(2), was committed in the same period as count 1 but involved sexual intercourse (cunnilingus) with KS then aged between 12 and 13 years. Although the sentencing judge did not include count 2 when assessing the objective seriousness of the acts charged under s 66C(2), it was intrusive and took place over a period which the victim identified as about five minutes. The applicant gave an explanation as to the circumstances in which the offence occurred, namely that whilst his wife was at a concert, KS ran into his bedroom naked, pointed to her vagina and asked the applicant to kiss her, an explanation which the trial judge rejected, suggesting that it defied credulity. Counts 1 and 2 were, as the judge noted, first steps on a course of grooming of KS so that she would come to accept more serious invasions of her body. Because count 2 was the first offence involving penetration of KS’ genitalia, a moderation of the indicative sentence might have been appropriate were it not that the remaining 25 counts attracted a sentencing discount of 15%. Each would attract the same individual sentence.

265. The offences of aggravated indecent assault against JS (counts 131 and 132) occurred between January 2013 and November 2013 when JS was 11 years and involved indecent touching. The conduct did not continue when JS took objection. The offences were below the mid-range of objective seriousness. Although these were the only offences involving JS, the applicant obtains no leniency as a first offender, having by that time been serially sexually abusing KS for many years. He was convicted after a plea of not guilty and obtains no discount. Each warrants an indicative term of 12 months’ imprisonment.

Administering an intoxicating substance

266. There were 22 counts of administering an intoxicating substance to KS with intent to commit an indictable offence, each of which was evidenced by a video recording taken by the applicant. As the judge noted, with few exceptions, the videos revealed that the child was “so heavily sedated that no matter what sexual act was performed upon her, she did not stir”. [142] She could be heard breathing heavily and even snoring on occasions. The judge further noted that the “constant filming of each of these episodes that involved the repetitive and similar sexual acts was intended for his own sexual gratification”. There can be no other explanation, other than commercial exploitation which was not supported by the evidence nor suggested at the trial.

     142. Sentencing judgment, p 6(19).

267. The video evidence demonstrated that the offences extended from June 2009 to September 2010. The judge described the administration of the sedative as “an appalling breach of trust” being administered “in such a quantity so as to totally deprive her of her mental and physical faculties”. [143] The trial judge assessed the offending as falling just above the mid-range for offences of that type. That assessment should be accepted.

     143. Sentencing judgment, p 8(14).

268. The sedation offences against KS were part of an ongoing course of criminal conduct with no differentiating features so far as the elements of that offence were concerned and attract the same level of objective seriousness as assessed by the trial judge. The deep state of sedation to which KS was subjected, as shown in the videos, precludes a more lenient assessment.

Sexual intercourse without consent

269. The 54 charges laid under s 61J of the Crimes Act (sexual intercourse without consent and in circumstance of aggravation) covered the 22 occasions when KS was sedated and unable to consent. Two other charges under s 61M(2) (aggravated indecent assault) were also referrable to those 22 occasions. On some occasions there was more than one video. It followed that, on average, there were two sexual assaults on each occasion of sedation. On 11 September 2009, covered by one sedation charge, there were six separate offences charged under s 61J, two involving penetration of the vagina by an object (a strawberry), two involving cunnilingus, one involving digital penetration of the vagina and one involving digital penetration of the anus. It is clear that, having administered the sedative with intent to have sexual intercourse with KS, the sexual acts he then committed were entirely opportunistic. That is, the applicant used a deeply sedated child to sexually assault her in the manner and form, and for the duration, that satisfied his sexual appetite.

270. As the trial judge observed, there was little purpose in distinguishing the objective seriousness of each offence. Had separate sentences been imposed for each offence, there would no doubt have been a high level of concurrency in respect of offences which took place on one occasion. Each of the offences under s 61J involved what the judge described as “an abhorrent breach of trust” [144] and the gravity of each was said to fall just above the mid-range for offences of their type. As the judge noted further, KS “was virtually reduced to an inanimate object with whom he was able to do whatever he pleased and film himself whilst he was doing it”. [145] Those observations should be accepted: they apply also to the lesser offences under s 61M(2).

     144. Sentencing judgment, p 16(24).

     145. Sentencing judgment, p 18(5).

271. With respect to the multiple counts of sexual offending which took place while KS was sedated, it is necessary, in specifying individual sentences, to avoid double-counting the objective seriousness of the sexual offences because they were committed whilst KS was sedated.

272. The further offences which were captured on the video recordings occurred whilst KS was conscious and involved in the activity. The counts under s 66C(2) and (4) did not involve any element of lack of consent. The critical factors in each case were the age of the victim and the circumstance of aggravation. The lack of consent distinguished the s 61J offences from those under s 66C, although where the child was under 14 years, the maximum penalty in each case was 20 years’ imprisonment. The first set of such charges were found on a video dated 8 February 2010.

273. The applicant submitted that the erroneous increase in the objective seriousness attributed to the s 66C offences by the sentencing judge, where the applicant had ejaculated inside KS also occurred in relation to the s 61J offences where ejaculation had occurred. However, perhaps curiously, the judge did not refer to the risk of pregnancy in relation to the s 61J offences. In relation to count 35, which involved an offence under s 61M(2), where ejaculation occurred onto KS’ vagina and anus, the judge elevated the objective seriousness to “just above the mid-range”. [146] That basis of distinction may not have been erroneous in circumstances where it was not said to involve any real risk of pregnancy.

     146. Sentencing judgment, p 28(12).

274. Overall, the offending to which pleas were entered may be seen, in respect of the differing offences, as generally in the mid-range of objective seriousness for such offending.

Indicative sentences reconsidered

275. Because this aspect of the exercise is a minority view, it may be covered briefly and without a table setting out the detail.

276. The circumstances of the case raise a question as to how the culpability arising on a single occasion was reflected in the determination of indicative sentences. By way of example, on 17 June 2009, there was video-recorded conduct which gave rise to three offences under s 61J (aggravated sexual assault), together with one offence under s 38(a) (administering an intoxicating substance). The trial judge indicated individual sentences of 8 years in respect of each s 61J offence, and 9 years in respect of the s 38(a) offence. On one view, there was inherent in those sentences a significant degree of double-counting. However, assuming a 15% discount for each of the s 61J offences, the nominal starting point for each was higher than that for the administration of the sedative, because, having faced trial and being found guilty, no discount applied to that offence. The total of the four offences (without discounts) was 37 years 3 months, for events which occurred on one occasion. Clearly a judge sentencing for those four offences would direct that the three offences under s 61J be served concurrently, or with a small degree of accumulation, with the longer offence (having regard to the discount of the s 61J offences) being that of administering the sedative. In that event, the utilitarian discount of the pleas diminishes to close to zero. Certainly, the value of the discount would not be reflected in the proportion of the indicative sentences for the guilty pleas as against the sentence for the offence which was not the subject of a discount.

277. Given these difficulties, on one view the judge was correct not to attempt to apply the discount in an arithmetical exercise. The alternative conclusion is that the judge simply disregarded the discounting exercise. That is quite unlikely, given that he spent two pages of the judgment setting out his reasoning in favour of a discount “of about 15%” in respect of the pleas.

278. In my view, an appropriate sentence for each of the s 38(a) offences involving KS is 5 years’ imprisonment. Those involving RL warranted lower sentences, each of 2 years.

279. With respect to the s 61J offences, with a starting point of 6 years, the discounted sentence is in each case 5 years, with a non-parole period of 3 years 9 months. With respect to the s 66C(2) (other than count 2) and s 66C(4) offences, using a starting point of 4 years, each sentence will be 3 years and 4 months. The same sentence (undiscounted) should be indicated for count 2. The same individual sentences should be indicated in relation to the offences under s 61M(2), namely 3 years and 4 months with non-parole periods of 2 years and 6 months. The offence charged under s 73(1), on which the applicant went to trial, would warrant a sentence of 3 years.

Use of a child and possess child abuse material

280. Counts 122-125 included two counts of using a child (one over and one under 14 years) for pornographic purposes and two counts of possessing child abuse material. As the judge noted, the material depicted KS in 79 videos and 778 still images. The judge considered the possession offences fell below the mid-range for offences of their type, because “only one child was involved, the material was intended for his own use, there was no question of dissemination or transmission and the risk of the material being seen or acquired by vulnerable persons was low”. [147] This assessment should be accepted. A similar assessment was made with respect to the offences of using a child for the production of child abuse material.

     147. Sentencing judgment, p 30(10)-(14).

281. The judge indicated a sentence of 4 years for the offence under s 91G(1)(a) (suggesting a starting point of 56 months) and 3 years and 4 months for the other offences (suggesting a starting point of 4 years). Again one might expect a high degree of concurrency, but the individual sentences may be accepted.

Aggregate sentence

282. The dominant sentencing principle in determining an aggregate sentence is the principle of totality. The applicant’s offending extended over four years. The sexual abuse of KS was extensive, gross, and degrading. That KS was the primary victim of the applicant’s criminal offending with, on one view, incidental criminal offending against JS and RL, does not serve to ameliorate the length of the aggregate sentence which must reflect the total criminality of the offending. The ultimate question for this Court is whether, in exercising its re-sentencing power under s 6(3) of the Criminal Appeal Act, the Court should be satisfied that some other sentence, and in particular a lesser sentence, is warranted in law and should have been passed.

283. I am not so satisfied. The corruption of the childhood of a young girl immediately she appears to reach puberty, was serious criminal misconduct. To obtain personal sexual gratification from a stepdaughter who was subject to the care of the applicant as her father, is, as the sentencing judge noted, an iniquitous breach of trust. To continue that conduct over a period of four years, including having sexual intercourse on a regular basis, and administering a sedative to facilitate the sexual abuse of his stepdaughter, demonstrates a level of commitment to self-gratification and a lack of insight which defies explanation.

284. There are, however, two considerations which need to be weighed in this case. First, because it should be accepted that the period in custody will weigh more heavily upon the applicant than it would upon a healthy person, the actual period in custody should be less than it would otherwise be in order to achieve the same level of punishment.

282. Secondly, the sentences indicated with respect of those offences where a plea of guilty was entered should reflect that fact. Section 53A(2) of the Sentencing Procedure Act obliges the court to take into account, pursuant to s 22, the guilty pleas in the indication of sentences for those offences to which the applicant pleaded. [148] However, in a sentencing exercise of this kind, whilst ensuring full transparency in the indicative sentences, given the number of offences involved, the discount for the guilty pleas will have little or no impact on the aggregate sentence.

     148. PG v R [2017] NSWCCA 179 (Button and N Adams JJ).

283. In indicating sentences for individual offences, a 15% discount has been applied where pleas of guilty were entered, although, as explained above, for other reasons, the sentences for those offences relative to other offences in the same category may differ only marginally. Issues of concurrency and or accumulation are taken into account in determining the aggregate sentence, albeit on a notional basis.

284. The application of the obligation imposed on the court by s 22 of the Sentencing Procedure Act in relation to an aggregate sentence is not easily identified. However, to allow transparency to the effect of the discounts granted in relation to the pleas, one course might be to identify a rough proportion of the sentences which were the subject of the pleas and therefore the entitlement to a discount, and apply that proportion of the discount to the aggregate sentence. Thus, if the total of the indicative sentences were 100 years, of which 65 years were attributable to sentences subject to a 15% discount, the proposed aggregate sentence of 12 years could be discounted by two-thirds of 15%, or 10%. It has been suggested that such an exercise cannot be carried out. [149] However, in some circumstances, it is one way in which an offender can be given the benefit of individual discounts, and allows s 22 to have an operation in relation to the sentence in fact imposed.

     149. PG at [82]-[83].

285. There is a complicating factor in this case which renders the proposed arithmetical exercise difficult, if not misleading. As noted above in considering how to determine individual sentences, four offences which occurred on one occasion will be served almost entirely concurrently with the longest sentence. If that were for the offence under s 38(a), which did not attract a discount, the utilitarian discount of the pleas diminishes to close to zero. Certainly, the value of the discount would not be reflected in the proportion the indicative sentences for the guilty pleas bear to the sentence for the offence which was not the subject of a discount.

286. With respect to each of the s 38(a) offences, that difficulty arises in varying degrees. On some dates there was only one other offence under s 61J (for example, 27 June and 4 July 2009). On another occasion, there were four offences under s 61J (11 July 2009). On one occasion, there were six offences under s 61J following one event of sedation (11 September 2009). If one of the offences of aggravated sexual assault were to be taken as the primary offence with respect to one occasion, and the sedation offence was treated as a secondary offence which would be accumulated to a small degree, then the reverse result would flow from the discounting of the primary s 61J offence.

287. In the present case, the proportion of the total of the indicative sentences identified by the sentencing judge for the guilty pleas was 75%. An alternative course would be to take the number of the serious charges to which the applicant pleaded as a proportion of the total number of convictions, which would give a similar statistic (99/130 or 76%). However, to treat the aggregate sentence as subject to a discount of, say, 11.2% (75% of 15%) would not necessarily provide a realistic application of the benefit provided under s 22 of the Sentencing Procedure Act.

288. There is, however, another factor revealed by this analysis, namely that the entry of pleas of guilty to all the offences (but only the offences) recorded on the video discs, all of which had to be played to the jury in any event, demonstrated the lack of any significant utilitarian value in the pleas. There are two available ways to deal with this consideration. One is to abandon the attempt to give transparency to the effect of the guilty pleas, by simply taking them into account, without arithmetical calculation, in determining the aggregate sentence. That was the course adopted by the sentencing judge. The alternative is to give some slight numerical discount of the aggregate sentence. If the discount were 5%, a sentence of 32 years would indicate a starting point of about 34 years. That figure would be entirely within the range of an appropriate sentence for the totality of the offending. It would follow that I am still comfortably satisfied that no lesser sentence than that imposed by the sentencing judge was warranted.

Non-parole period: special circumstances

292. There was a separate challenge in the applicant’s grounds to the refusal of the judge to find special circumstances, so as to vary the proportion of the non-parole period and the balance of the term, pursuant to s 44 of the Sentencing Procedure Act (ground 18). The applicant’s contentions in that regard rested on two propositions: first, that a sentence with a non-parole period of 24 years would effectively result in institutionalisation, and, secondly, the sentence was his first term in custody. Various other factors were also relied upon, including his health and his age.

293. All these considerations were relevant, but the question for the sentencing judge was whether a lesser period of custody would reflect the total criminality. He was satisfied rather that the statutory ratio properly reflected the totality of the applicant’s criminal conduct. [150]

     150. Sentencing judgment, p 39(19).

294. The balance of the term of the aggregate sentence was 8 years, in accordance with the statutory ratio. No purpose would be served by increasing that period. While the matters raised by the applicant had relevance to the determination of whether to vary the statutory ratio, they were also matters which were taken into account in fixing the overall term of the sentence. Matters such as his health conditions would be double-counted if they were relied upon as special circumstances reducing the custodial period. Furthermore, while the statutory ratio is commonly varied in the case of a person serving his or her first term of imprisonment, the purpose of such a variation is to provide an extended opportunity for rehabilitation in the community. The length of the current sentence, and the applicant’s circumstances, deprive that consideration of significance.

295. The judge did not err in failing to find special circumstances and this Court should not do so in re-sentencing.

Conclusion as to re-sentencing

296. The indicative sentences have been reassessed and reflect the facts and circumstances of the individual offending and relevant sentencing principles, including, where appropriate, the application of a 15% discount. Although for some offences they differ from those indicated by the sentencing judge, that does not diminish the judge’s assessment of the applicant’s overall criminality.

297. Having taken into account the subjective history and current health of the applicant, as discussed above and as more fully set out in the reasons of the sentencing judge, and bearing in mind the objective seriousness of the overall course of offending, no lesser sentence than that imposed by the sentencing judge is warranted. Accordingly, the applicant should have leave to appeal against his sentence, but the appeal should be dismissed.

Orders

298. The Court should make the following orders:

1. Subject to order (2), refuse the applicant an extension of time within which to appeal from his convictions following verdicts of guilty returned on 18 July 2017.

2. With respect to grounds 1, 1A and 2(iv),

1. extend time to appeal from the convictions to 14 December 2020,

2. grant leave to appeal, and

3. dismiss the appeal.

3. With respect to the aggregate sentence imposed in the District Court on 22 November 2017:

1. grant the applicant leave to appeal, and

2. dismiss the appeal.

299. FULLERTON & GARLING JJ: On the application by TS for an extension of time, leave to appeal, and the appeal against his convictions, we agree with the orders proposed by Basten AJA. We also agree with his thorough and comprehensive reasons.

300. Appeal grounds 5, 5A and 30 focus on the convictions for 22 offences contrary to s 38(a) of the Crimes Act consequent upon the verdicts of guilty returned by the jury, and assert that those convictions should be set aside on the basis that the convictions were unreasonable, or else, having regard to the evidence, could not be supported: s 6(1), Criminal Appeal Act.  

301. In considering those grounds and the applicant’s submissions with respect to them, we have carefully read the transcript of the whole of the evidence of the trial, and we have viewed each of the videos which were tendered as exhibits in the trial. Those videos were taken by the applicant himself and showed in detail his interactions with KS. Having done so, we do not have any doubt at all, and are thoroughly convinced, that the verdicts returned by the jury were soundly based. There is absolutely no merit in these grounds of appeal.

302. On the application for leave to appeal and to appeal against his aggregate sentence, we agree with by Basten AJA that no lesser sentence than that imposed in the District Court is warranted. We also agree generally with his reasons.

303. Regrettably however, we are unable to agree with [275]–[278], and [286]–[290] of Basten AJA’s reasons.

304. It is convenient if we first address our difference of view with respect to his Honour’s reasons at [286] to [290].

305. In those paragraphs of his reasons, Basten AJA deals with the perceived difficulties in this case with the lack of transparency when the effect of allowing the discount for pleas of guilty is only reflected on the indicative sentences and not on the aggregate sentence which was in fact imposed. His Honour’s reasons propose other possible methods of giving effect to any such discount.

306. As we have indicated, we do not agree with these paragraphs. In our view, s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 is clear in its terms requiring that discounts for pleas of guilty are to be taken into account and allowed for when stating the indicative sentence. In our view, it is contrary to this provision to calculate discounts on, or to take into account and apply their effect to, aggregate sentences

307. As well, previous decisions of this Court, with which we agree, do not support the approach taken by his Honour with respect to the calculation of the effect of a discount for pleas of guilty on aggregate sentences: see Glare v R [2015] NSWCCA 194 at [12]; Bao v R [2016] NSWCCA 16; Elsaj v R [2017] NSWCCA 124 at [56]; PG v R [2017] NSWCCA 179 at [71]-[92].

308. We next address our differences of view with respect to his Honour’s reasons at [275]–[278].

309. The objective seriousness of each of the 54 offences contrary to s 61J(1) of the Crimes Act, was assessed by the trial Judge as being just above the mid-range. We agree with that assessment. We agree that it was necessary in considering the individual sentences indicated for these offences to be careful not to double‑count any element contributing to that assessment with the elements contributing to the assessment of objective seriousness of the 26 offences contrary to s 38(a) of the Crimes Act.

310. Our view is, for the reasons given above, that it is necessary to ensure that the 15% discount for the late pleas of guilty is given effect to when the indicative sentences are determined.

311. The maximum penalty for an offence against s 61J(1) is 20 years’ imprisonment with a standard non-parole period of 10 years. These are important guideposts for consideration when sentencing is being undertaken.

312. Taking into account all of these, and all other relevant matters, we assess the appropriate sentence to be indicated for each of these offences as 8 years with 6 years indicated as the non-parole period.

313. In coming to this conclusion, we recognise that there is a significant difference from the sentences indicated by Basten AJA of 5 years with a non-parole period of 3 years 9 months. It is our view that such indicative sentences are too low to reflect the objective seriousness of the applicant’s conduct and the maximum penalty fixed for these offences.

314. We are also unable to agree with the individual sentences which his Honour indicates for the 26 offences contrary to s 38(a) of the Crimes Act, namely 5 years for the offences against KS and 2 years for the offences against RL.

315. All of these offences were assessed by the trial Judge as being just above the mid-range of objective seriousness. We agree with that assessment. No discount for pleas of guilty are applicable. The maximum penalty for an offence against s 38(a) is 25 years.

316. We have come to the conclusion that the appropriate sentence to indicate for each of these offences is 9 years insofar as the victim was KS, and 7 years for the four offences in which the victim was RL.

317. For clarity, we set out below a schedule of the indicative sentences which we think are appropriate.

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Schedule of Individual Sentences

Offence	Maximum penalty and standard non-parole period	Number of counts and pleas	Counts on Indictment	Indicative sentence on each count
Aggravated indecent assault on person under 16 years - s 61M(2) Crimes Act 1900 KS aged 12 and 14 JS aged 11	Maximum penalty: 10 years SNPP: 8 years	12 counts • Pleas of guilty: 9 • Verdicts of guilty: 3	Pleas of Guilty 5, 13, 31, 35, 36, 63, 70, 82, 113 Verdicts of Guilty 1 (KS) 131, 132 (JS)	3 yrs 4 mths (NPP 2 yrs 2 mths) 10 mths (NPP 7.5 mths) 16 mths (NPP 12 mths)
Aggravated sexual intercourse with child over 10 and under 14 years (under authority) - s 66C(2) Crimes Act 1900 KS aged 12 and 13	Maximum penalty: 20 years SNPP: N/A	26 counts • Pleas of guilty: 25 • Verdict of guilty: 1	Pleas of Guilty 75, 76, 77, 78, 79, 80, 81, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112 Verdict of Guilty 2	6 yrs 6 mths 6 yrs 6 mths
Sexual intercourse with person under special care aged over 16 and under 17 years - s 73(1) Crimes Act 1900 KS aged 16	Maximum penalty: 8 years SNPP: N/A	1 count • Verdict of guilty: 1	Verdict of Guilty 4	3 yrs
Aggravated sexual intercourse with child over 14 and under 16 years (under authority) - s 66C(4) Crimes Act 1900 KS aged 14 and 15	Maximum penalty: 12 years SNPP: N/A	7 counts • Pleas of guilty: 7	Pleas of Guilty 114, 115, 116, 117, 118, 120, 121	5 yrs 4 mths
Aggravated sexual assault (victim under 16 years) - s 61J(1) Crimes Act 1900 KS aged between 12 and 14	Maximum penalty: 20 years SNPP: 10 years	54 counts • Pleas of guilty: 54	Pleas of Guilty 7, 8, 9, 11, 12, 15, 17, 18, 19, 21, 23, 24, 25, 26, 28, 29, 30, 33, 38, 39, 41, 42, 43, 44, 45, 46, 48, 50, 51, 52, 53, 55, 56, 58, 59, 60, 61, 62, 65, 66, 67, 69, 72, 73, 74, 84, 85, 86, 87, 88, 90, 92, 94, 119	8 yrs (NPP 6 yrs)
Administer intoxicating substance with intent to enable commission of indictable offence (aggravated sexual assault) - s 38(a) Crimes Act 1900	Maximum penalty: 25 years SNPP: N/A	26 counts • Verdicts of guilty: 26 22 counts KS 4 counts RL	Verdicts of Guilty 6, 10, 14, 16, 20, 22, 27, 30, 34, 37, 40, 47, 49, 54, 57, 64, 68, 71, 83, 89, 91, 93 126, 127, 128, 129	9 yrs 7 yrs
Possess child abuse material = s 91H(2) Crimes Act 1900	Maximum penalty: 10 years SNPP: N/A	2 counts • Pleas of guilty: 2	Pleas of Guilty 122, 123	3 yrs 4 mths
Use child under 14 years for pornographic purposes- S 91G(1)(a) Crimes Act 1900	Maximum penalty: 14 years SNPP: N/A	1 count • Plea of guilty: 1	Plea of Guilty 124	4 yrs
Use child over 14 years for production of child abuse material - s 91G(2)(a) Crimes Act 1900	Maximum penalty: 10 years SNPP: N/A	1 count • Plea of guilty: 1	Plea of Guilty 125	3 yrs 4 mths

Endnotes

Decision last updated: 12 October 2022