Versi v R - [2013] NSWCCA 206

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: VERSI, Peter v R [2013] NSWCCA 206
Hearing dates: 16 August 2013
Decision date: 14 November 2013
Before: Basten JA at [1];
Adams J at [37];
Latham J at [201]
Decision:
(1) Leave to appeal against conviction is granted.
(2) The appeal against conviction is dismissed.
(3) Leave to appeal against the sentences imposed is granted.
(4) Appeal against the sentences is dismissed.
(5) On count 2 of the indictment the appellant's fixed term is directed to recommence on 14 November 2013 and expire on 23 December 2013.
(6) On count 3 of the indictment, the appellant's non-parole period is directed to recommence on 14 November 2013 and expire on 23 December 2014, with a balance of term of 12 months commencing on 24 December 2014 and expiring on 23 December 2015.
(7) The appellant is to be released on parole on 24 December 2014.

Catchwords:
CRIMINAL LAW - appeal against conviction - historical child sexual assault - verdict not unreasonable - errors in trial transcript - corrected by substantial agreement - appellate court not required to listen to transcript

EVIDENCE - tendency and coincidence evidence - confusing directions - coincidental "events" - appropriate coincidental reasoning
CRIMINAL LAW - appeal against sentence - manifestly excessive - whether sentence practices at the time of the offences should be applied
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Probation and Parole Act 1983
Probation and Parole Regulation 1984
Sentencing Act 1989
Cases Cited: AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
HML v The Queen [2008] HCA 16; 235 CLR 334
Khoury v R [2011] NSWCCA 118
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MPB v R [2013] NSWCCA 213
Mraz v The Queen (1955) 93 CLR 493
Pearce v The Queen [1998] HCA 57 ; 194 CLR 610
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
PWB v R [2011] NSWCCA 84
R v Evans (1987) 8 NSWLR 540
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Hermann (1988) 37 A Crim R 440
R v Jenkins (1999) NSWCCA 110
R v Kennedy [2000] NSWCCA 527
R v Kirkman (1987) 44 SASR 591
R v Maclay (1990) 19 NSWLR 112
R v MJR [2002] NSWCCA 129; (2002) 130 A Crim R 481; (2002) 54 NSWLR 368
R v Morley [1985] WAR 65
R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497
R v O'Brien [1984] 2 NSWLR 449
R v Paivinen [1985] HCA 39; (1985) 158 CLR 489
R v Rogers (1987) 8 NSWLR 236
R v Storey (1978) 140 CLR 364
R v Watt [1988] HCA 58; (1988) 165 CLR 474
RLS v R [2012] NSWCCA 236
Rosenstrauss v R [2012] NSWCCA 25
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v R [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
Category: Principal judgment
Parties: Peter Versi (Applicant)
Regina (Crown)
Representation: Counsel:
A Bellanto QC (Applicant)
P Ingram SC (Crown)
Solicitors:
Nyman Gibson Stewart (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2009/201959
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-03-29 00:00:00

Before:

Taylor DCJ

File Number(s):

2009/201959

Judgment

BASTEN JA: The applicant, Peter Versi, was convicted by a jury on two counts of sexual misconduct involving his stepdaughter. He seeks leave to appeal against both his convictions and sentences. Leave is required with respect to the convictions because the grounds do not raise questions of law only: Criminal Appeal Act 1912 (NSW), s 5(1). For the reasons given by Adams J, there should be a grant of leave with respect to each of the convictions and the sentences.

Subject to the following qualifications, the appeals should be dismissed for the reasons given by Adams J.

Listening to tape of summing up

Senior counsel for the applicant invited the Court to listen to the whole of the sound recording of the summing up, in order to assess grounds 2, 3 and 7, which allege that the directions with respect to coincidence and tendency evidence were confusing and misleading, as was the summing up generally. Adams J has declined the invitation to listen to the whole of the summing up but has acceded to the invitation to listen to those specific portions relating to coincidence and tendency evidence, to which objection was taken by the applicant.

That approach is a pragmatic response in a case where the specific passages challenged are discrete and of limited duration. Nevertheless, there is a question as to whether as a matter of principle, this Court should accede to such invitations and, if so, in what circumstances.

It is a matter of common experience that transcripts contain inaccuracies which can readily be identified and corrected by those involved in the proceedings. That fact involves no criticism of the highly competent and diligent transcription service: it is easy to mistake or mishear words where the subject matter is unfamiliar. Further, the quality of the sound recording is quite variable. Given these factors, it is commonplace for the trial judge to correct the transcript of the summing up, after it is made available to the court. However, that does not always occur and did not occur in the present case, possibly because the trial was presided over by an acting judge. As in the case of a transcript of evidence, corrections are made, not to remove infelicities of expression, but to ensure that what is recorded is what was in fact said. If there is a dispute as to what was said and the transcript has not been corrected by the trial judge, it may well be appropriate for the appeal court to listen to the sound recording. However, in the present case a corrected version of the transcript was prepared by the solicitors for the applicant and was provided to this Court without objection from the respondent. This Court should rely upon the corrected version, there being no dispute as its accuracy.

There are omissions even in the corrected version. In some cases, if the omissions were thought to be of material words, it might be proper for this Court to listen to the recording to form its own view (to the extent possible) as to the missing words. However, if those who were present have been unable to decipher the recording, it would usually be unlikely that this Court would be better able. In the present case, it was not contended that any particular words noted as untranscribable were of critical importance.

The Court is left in the position where it is being asked to listen to the recording, not to resolve any dispute as to what was said, nor to fill any omission, but to form a view as to whether the jury would have misunderstood or misheard directions which were, in their terms, adequate. That is a course which the Court should adopt only with great caution and when satisfied that some benefit can be obtained. One reason for such caution is that an appellate court cannot be sure that the sound recording will give an accurate impression of that which the jury heard. Factors such as the placement of the microphone will not be known.

Further, although a judge's summing up is a discrete part of the trial, it is often necessary to consider it in the overall context of the trial, which may include consideration of the evidence and the addresses of the prosecutor and defence counsel. If it were thought desirable to invite the appeal court to listen to the summing up, the practice might extend to inviting the court to listen to other aspects of the trial. There is an issue, however, as to the extent to which it is appropriate to invite an appeal court to place itself, as closely as possible, in the shoes of the jury. When addressing a ground challenging a verdict on the basis that it was unreasonable, or could not be supported, having regard to the evidence, it may be necessary for the appeal court to review the whole of the evidence. Nevertheless, the court must always make allowance (as indeed it must with a judge only trial) for the advantages of being present during the whole of the trial. The appeal court is not to replace the jury for the purposes of reconsidering the case afresh. Its role is more limited.

Finally, such a request must be approached with caution on a pragmatic basis. A limited request in one case will expand in the next. If trials are video recorded in the future, appeal courts will be invited to watch the video recording rather than listen to the sound recording. The time required to deal with appeals will rapidly exceed the available resources.

Bearing these factors in mind, I am not persuaded that this is a case in which it is appropriate to accede to the applicant's request to listen to either the whole sound recording of the summing up, or discrete portions. The adequacy of the directions should be assessed on the basis of the agreed transcript.

Coincidence evidence

The rule with respect to the admissibility of coincidence evidence is formulated in the negative, namely that coincidence evidence is not admissible unless two conditions are satisfied: Evidence Act 1995 (NSW), s 98(1). The first condition is procedural (the giving of notice in writing); the second involves the satisfaction of the court that the evidence has "significant probative value". The application of these conditions was not raised by the grounds of appeal concerning the directions as to the use of the evidence. However, the way in which the evidence can be used, if admitted, is identified in s 98(1) in the following terms (simplified to identify the principle), namely the purpose of the proposed tender is to prove "that a person did a particular act ... on the basis that, having regard to any similarities in the events or the circumstances in which they occurred ... it is improbable that the events occurred coincidentally". Evidence adduced for that purpose is described in the Evidence Act as "coincidence evidence": Dictionary, Pt 1 coincidence evidence. The term covers much of what under general law principles was described as "propensity" or "similar fact" evidence, although propensity evidence is also covered by what is now "tendency" evidence, dealt with in s 97. It is admissible if it has sufficient probative value, despite the fact that (prejudicially) it reveals the commission of some other offence, with which the accused is not charged, with the concomitant danger that the jury may reason improperly from satisfaction that the accused committed the uncharged offence to satisfaction that he was guilty of the offence charged. The term "coincidence" is not always apt to describe that which is otherwise improbable.

The evidence of the complainant with respect to count 2 was that the applicant asked the complainant to assist him with putting cream on his penis and testicles. The other incident, of which evidence was given by Ms SD1, to whom the applicant was also a stepfather when she was an adolescent, involved him inviting her into the bathroom and requesting her to hold his erect penis "so that he could fix his hernia". Her evidence was that when she took hold of his penis he "proceeded to sort of grind his hips against my hand".

The question for the jury was whether the incident with the complainant in fact occurred as she described. As explained in Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 482 (Mason CJ, Deane and Dawson JJ):

"The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred."

Section 98 provides that "[e]vidence that 2 or more events occurred is not admissible" for the identified purpose unless the conditions already noted are fulfilled. A note to the section provides that "[o]ne of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding": needless to say, s 98 is not a proscription of evidence of the event the subject of the charge. It is to be understood as a conditional exclusion of evidence of events involving misconduct by the accused on one or more occasions other than that the subject of the charge. That which is significantly probative of the charge is not the fact of other complaints, but proof that the other events occurred.

No doubt there is a sense in which it is true to say that, absent communication between the witnesses, which might give rise to suggestion, collaboration or concoction, it is highly improbable that two individuals would describe separate events involving similar conduct on the part of the accused, unless that conduct had occurred. However, s 98 distinguishes between "evidence" and "events". It is the improbability that "the events occurred coincidentally" (that is without a causal connecting factor, namely the involvement of the accused) which is the focus of the section. It would be artificial to base an exclusionary rule upon the similarity of evidence about one event with the similarity of evidence about another. The section does not, in any event, do that.

This analysis departs linguistically from that of Adams J below, but not so as to affect the conclusion.

I agree with Adams J that a direction that the jury be satisfied beyond reasonable doubt as to the allegations made by SD1 may have been unduly favourable to the applicant. It was not necessary for the jury to consider the evidence of the complainant and SD1 independently before considering the cumulative effect. It is possible that the jury might have entertained a reasonable doubt as to the truth of each allegation, considered alone: but if that were so, the jury would have been entitled to consider both together in order to be satisfied beyond reasonable doubt that the conduct the subject of the charge occurred, as described by the complainant. As explained by Gleeson CJ in HML v The Queen [2008] HCA 16; 235 CLR 334 at [29], generally "the law as to standard of proof applies to the elements of the offence, not particular facts." Again speaking generally, "the indispensable link case apart, it is ordinarily neither necessary nor appropriate for a trial judge to give separate directions about the standard of proof of uncharged acts": at [32]. The "indispensable link" in the present case was the complainant's evidence as to the subject matter of the charge: the evidence of SD1 formed part of the web of circumstances which rendered it more likely that the complainant's account was truthful and reliable. The evidence of the complainant and SD1 was, in that sense, mutually corroborative.

Opportunity for suggestion, collaboration or concoction

The probative force of the evidence of the two events depended upon the absence of any extraneous explanation. Evidence of opportunity for communication between the witnesses, occurring before they complained, would give rise to at least a possibility of communication about the events and, if not concoction, unconscious suggestion or moulding of memory. Such evidence would almost invariably be raised on the voir dire, as a basis for rejecting the evidence of the misconduct not the subject of a charge. No such issue was raised at trial, either on a voir dire or before the jury, in the cross-examination of either the complainant or Ms SD1. Nor was it raised on appeal.

Absence of opportunity for concoction between two witnesses was not an element of the prosecution case against the applicant. Indeed, mere opportunity might not have affected the probative value of the evidence, absent evidence of actual communication about the allegations. There was, accordingly, no error or potential miscarriage arising from the fact that neither party raised the issue at trial. In those circumstances, it could not properly have been raised on appeal: cf Adams J at [135]-[142]. If raised it would have been rejected as misconceived, there being no error to which a response was required. It was not raised and need not be addressed.

Appeal against sentences

The applicant also sought leave to appeal against the sentences imposed for each offence.

The less serious offence (count 2) involved an act of indecency with a person under 16 years of age, contrary to the now repealed s 61E(2) of the Crimes Act 1900 (NSW). The maximum sentence for that offence was two years imprisonment. The sentence imposed by the sentencing judge was a period of six months imprisonment, by way of a fixed term.

The more serious offence (count 3) was sexual intercourse with a person between 10 years and 16 years of age, whilst under the offender's authority, contrary to s 66C(2) of the Crimes Act (now repealed). The sentencing judge imposed a period of two years three months imprisonment, with a non-parole period of 15 months. The sentence on this count was fixed to commence three months after the first sentence and was thus cumulative upon 50% of the first sentence. The non-parole period for the second sentence constituted 55% of the sentence period for that offence.

It is not in doubt that the applicant was properly to be sentenced according to the law as it stood at the time of the offences.

The only relevant ground of appeal was that, "[t]he sentence was manifestly excessive and outside the appropriate range". There were in fact two sentences and the applicant's submissions addressed both, and the element of accumulation.

The applicant's submissions noted that the complainant was aged 11 or 12 years at the time of the first offence, namely count 2. (She was born on 29 January 1974 and the offence was identified in the indictment as occurring between 15 November 1985 and 22 April 1986: she was thus approximately 12 years of age.)

The submissions noted that the conduct was less serious than "an indecent assault", referring to s 61E(1) of the Crimes Act, as then in force. That was true, however the sentence under s 61E(1) was, relevantly, a maximum term of six years or triple that for the offence charged as count 2.

The submissions also noted that counts 2 and 3 involved two discrete occasions and were not a part of an ongoing course of conduct or persistent abuse. That was so, but that consideration tended to support an element of accumulation.

Count 3 involved the more serious offence, namely sexual intercourse by digital penetration of the vagina. That was said to have occurred in a period commencing at the end of the period with respect to count 2, namely between 20 April 1986 and 31 December 1989. On one view, the seriousness of the offence might have been reduced if the complainant were almost 16 years of age, rather than if she were 12 years of age. However, in resisting any element of accumulation, the applicant submitted that both offences occurred when the complainant was 12 years of age. That implied that the offences occurred within a limited timeframe, but also that the more serious conduct of sexual intercourse occurred when the complainant was younger rather than older.

The applicant did not challenge any particular aspect of the reasoning of the sentencing judge, which set out with some care the objective circumstances of the offending and the circumstances of the applicant. It is, accordingly, not necessary to repeat those considerations.

There was no attempt in the submissions to explore the relevant sentencing principles with respect to long past offences, nor did any aspect of the challenge made by the applicant raise such matters. It is sufficient to note that these offences occurred in the period between the commencement of the Probation and Parole Regulation 1984 (NSW) on 28 February 1984 and its repeal on 25 September 1989, during which period both the head sentence and the non-parole period were subject to reduction, "in step in a proportionate sense", as explained by the Court in R v Maclay (1990) 19 NSWLR 112 at 118G.

Not only were the offences committed at a time when there was no longer any legal need to prescribe a non-parole period which was less than half the head sentence, but, in the ordinary run of events, the offender would not have faced sentencing until after the commencement of the 1989 Act. It follows that there is no need to take account of principles which might have operated prior to the "truth-in-sentencing" reforms. In these circumstances, and given the statements as to the appropriate course to be taken in imposing sentences after the commencement of the Sentencing Act 1989 in Maclay, the Court should consider an appropriate sentence by reference to the statutory guidelines (including the maximum sentence for each count), the range of conduct covered by a particular offence the subject of each count and other sentencing principles which were relevant at the time at which, had a timely complaint been made, the offender would probably have stood sentence. No issue as to perceived "patterns of sentencing" arise in this case: see MPB v R [2013] NSWCCA 213 at [31], addressing the principle stated in Maclay.

The trial judge noted that there was no evidence of remorse or contrition on the part of the offender. Not only did the offender deny the offences at trial, but he had (and forewent) an opportunity to accept that his conduct was wrong and had disturbed the complainant in 1988, when she was aged 14 years and had raised her complaints with a psychologist. There was a subsequent attempt to resolve issues within the family through the offices of a second psychologist, but again the applicant was unable or unwilling to accept the consequences of his own misconduct. This was not a case in which the applicant was required to confront allegations of sexual misconduct for the first time 25 years after the events.

It is appropriate to treat the six month fixed term sentence with respect to count 2 as equivalent to a non-parole period. However, there is a range within which the hypothetical head sentence could fall. For example, there is no particular reason to assume that a significant period of parole was intended, in circumstances where, because of the further sentence to be imposed, the offender would not be released to parole on that sentence. On the assumption that the non-parole period was likely to be in the order of two-thirds of the head sentence, one would infer a head sentence of nine months. It is not possible to say that such a sentence would be outside an available range, although it might be at the high end of the range. The applicant has failed to demonstrate that the sentence in fact imposed was manifestly excessive.

With respect to the sentence on count 3, a more severe sentence was imposed, reflecting the fact that the maximum term for the offence was 10 years imprisonment.

While it is true that this was not an offence at the high end of the spectrum of conduct covered by former s 66C(2), sexual intercourse without consent involving a degree of force would have attracted a higher maximum penalty. Although the conduct involved a relatively short period of time, I would not describe it as "momentary", language which would tend to suggest inadvertence and which would undoubtedly belittle the nature of the offending. It is true that personal deterrence will have a limited role to play in a case such as this. The applicant is no longer in a position of authority with respect to children in his household and is unlikely to be in such a position again. Questions of general deterrence must weigh more heavily.

While there may be different views as to the appropriate sentence in such a case, there was no material put before this Court to demonstrate that the sentence in fact imposed was outside the appropriate range. Accordingly, while there should be a grant of leave to appeal against sentence, the appeal must be dismissed.

ADAMS J:

Introduction

On 31 August 2011 the applicant was found guilty on two counts following a trial of an indictment containing four counts. The counts involved sexual misconduct against his stepdaughter then aged under 16 years. He was convicted on count 2, being the commission (between 15 November 1985 and 22 April 1986) of an act of indecency upon a person under the age of 16 years, an offence under s 61E(2) of the Crimes Act 1900 (since repealed) and of count 3, the commission (between 22 April 1986 and 31 December 1989) of sexual intercourse with a child between the ages of 10 and 16 years and under his authority, an offence under s 66C(2) of the Crimes Act (since repealed). The former offence carried a maximum penalty of 2 years imprisonment and the latter 10 years penal servitude. The jury was unable to reach a verdict on counts 1 and 4. The applicant was sentenced in respect of the count 2 offence to a fixed term of 6 months imprisonment commencing on 29 March 2012 and concluding on 28 September 2012. On count 3 he was sentenced to imprisonment for a non-parole period of 15 months commencing on 29 June 2012 and concluding on 28 September 2013 with a balance of term of 12 months, concluding on 28 September 2014. The overall sentence was 2 years and 6 months with a non-parole period of 1 year and 6 months.

The applicant was on bail during his trial and following the jury's verdict on 31 August 2011. Bail was not continued when he was sentenced on 29 March 2012 but, on 16 August 2012, the applicant was granted bail in the Supreme Court. In the result, the only period of custody served by the applicant was between 29 March and 16 August 2012.

The applicant seeks leave to appeal against his conviction and sentence.

The grounds of appeal against conviction

These are as follows -

(1) There was a miscarriage of justice in that the procedure prescribed in s 279 of the Criminal Procedure Act 1986 was not followed in respect of the applicant's wife.

(2) There was a miscarriage of justice in that the directions to the jury on coincidence evidence were confusing and inappropriate.

(3) There was a miscarriage of justice in that the direction to the jury on tendency was unclear, confusing and misleading.

(4) The verdicts on counts 2 and 3 were unreasonable and cannot be supported by the evidence.

(5) There was a miscarriage of justice in that the guilty verdict on count 3 was inconsistent with a failure to agree on a verdict in respect of count 4.

(6) The trial judge erred in admitting the evidence of SD1 as evidence of coincidence relevant to count 2.

(7) There was a miscarriage of justice in that the directions by the trial judge, in addition to the directions on tendency and coincidence, were confusing and misleading when considered separately or in combination.

The consideration of ground one requires only a brief reference to the pertinent facts and I deal with that matter first. Otherwise, given the scope of the remaining grounds of appeal, it will be necessary to summarise the evidence in some detail.

Ground one - Mrs Versi's evidence

The applicant's wife was called as a witness for the prosecution on the fourth day of the trial. On the previous day the Crown prosecutor had indicated that it might be necessary to cross-examine her on some parts of her evidence pursuant to s 38 of the Evidence Act 1995. No reference was made either to s 18 of the Act, which deals with compellability of spouses in criminal proceedings or to s 279 of the Criminal Procedure Act 1986, which deals with compellability of spouses in relation to a number of specific offences including a "child assault offence" of the kind with which the applicant had been charged.

Shortly after the learned trial judge commenced his summing up, the Crown prosecutor pointed out to the trial judge that s 18 of the Evidence Act had been overlooked and needed to be addressed. This was an error since s 19 of the Act provides that s 18 did not apply in respect of proceedings for an offence to which s 279 of the Criminal Procedure Act applied. Without descending into unnecessary detail, s 18 of the Evidence Act permits the spouse to object to being required to give evidence as a witness for the prosecution and, in certain circumstances, must not be required to give evidence. On the other hand, s 279 of the Criminal Procedure Act provides that the spouse is compellable to give evidence in the proceedings unless there is an application to be excused from doing so, which may be allowed but only where the matters in subsection 279(4) are satisfied, namely the application to be excused is made voluntarily, that the evidence sought from the spouse is relatively unimportant or can be otherwise proved and that the offence is a minor one. It is clear that neither of the last two elements applied in this case and, accordingly, had the applicant's wife sought to be excused under this provision, the application must have been refused. As it happened, the wife was called, without objection, to give evidence on the voir dire as though s 18 applied. She said, in effect, that she wished to give evidence and had not intended to decline to do so. There the matter lay, no further application as to it being made, and the judge proceeded with the summing up.

It is submitted by Mr Bellanto QC, for the applicant, that this "ex post facto approach" was inappropriate and amounted to a departure from the requirements of a trial according to law. In my view, this submission should be rejected. Since s 18 was not applicable and therefore s 279 applied and there was no application within s 279(3) by the applicant's wife to be excused from doing so, no question of compellability actually arose. The admittedly unorthodox calling of the applicant's wife to give evidence on the voir dire during the summing up was, therefore, of no moment. No injustice was occasioned to the applicant by this unconventional procedure. It amounted to a mistaken and immaterial, but fortunately short, interruption in the trial.

This ground of appeal has no merit.

The prosecution evidence of the charges

In order to deal with the other grounds of appeal, it is necessary to set out in some detail the evidence given in the trial.

The complainant gave evidence by videolink. She was born on 29 January 1974. She came to know the applicant when she was about seven years old, he having commenced a relationship with her mother. Eventually he moved into their home in Mosman where her younger brother Nicholas also lived. She was then going to primary school.

The complainant said she recalled an incident that occurred when she was about eight years old when the applicant was tucking her into bed one night. This occurred before the applicant and her mother were married. (Therefore before she was seven and a half, although she later became somewhat uncertain about the timing of this event.) At the time she was sharing a bedroom with her brother, although she did not remember her brother being in the room at the time. She said that the applicant tickled her while he was tucking her in, starting on her body (which it seems he often did) "but then proceeded to put his hands down my pants and tickle my vagina and made jokes about the fact that I was getting pubic hair". She could not remember exactly what he said. In cross-examination, the complainant said she believed her mother and the applicant were unmarried at this time but agreed that they were in fact married in October 1981, when she would have been seven and a half years of age. The fact of the marriage was used by her as a guide to the timing of the incident but she was sure that she was eight years old at the time and had started to grow pubic hair. This incident was charged in count 1, upon which the jury was unable to agree. Her mother's evidence about another incident (involving turpentine - see below) was that it occurred at the second house and, thus in late 1983, when the complainant was at least nine and a half years of age. She clearly remembered that at this time the complainant did not have pubic hair.

The complainant said that the family moved house when she was about nine years old by which time the applicant and her mother were married. There was family discussion about renovating the house, involving new bedrooms and a new kitchen. She said that about the time of the move, she had showers with the applicant on numerous occasions, encouraged by her mother. She remembered one distinct occasion, when she was about nine years old, when she was in the shower with the applicant alone. He had an erection and, not knowing what it was at the time, she asked him what it was. She did not remember his response but "I think he just sort of turned around and tried to hide it".

The complainant said that at the time they moved she was often ill and had been prescribed a lot of antibiotics which, apparently, gave rise to secondary symptoms of thrush, requiring treatment with creams. She said that her mother would ask the applicant to examine her vagina because she was complaining about it hurting or itching "and so he would sort of, you know, I guess like a doctor like way, inspect my vagina". She said that it happened on a few occasions when her mother was also in the house. She said, "it was done in a way that sort of portrayed him as a bit of a - not a medical person but someone who was knowledgeable about the body and its ailments". This was not the subject of a charge.

In November 1985 the applicant and the complainant's mother had twins. She said that her mother went away with them to "a Tresillian type place", at least once but she was not sure for how long. During one such occasion, when she was 11 or 12 years old, at Queenwood School (where she started in 1984 in year five, the twins being born in 1985 when the complainant was in year six) she had been playing tennis with her brother in the street one afternoon. She said that she went inside the house to ask the applicant if he could come out to play. She said that he asked her to come up to the bedroom where he was and, going in, "he then asked me to assist with him putting cream on his penis and testicles" while he laid back on the bed and instructed her on how to apply the cream. The complainant said she "didn't feel very happy about it or comfortable with it and I remember trying to, you know, finish as quickly as I could. I'm not really sure how it ended, I just remember getting out of the bedroom and then he stayed there, so I left on my own".

The complainant said that, when they moved to the second house, she was given a bedroom which she occupied for most of the time until perhaps year 11 or 12 although she remembered studying for the HSC in a different room. The second house was a two-storey house with her and her parents' bedrooms always on the first floor. However, there was an extension of the ground floor and the first floor space later constructed, at which time her parents moved into a different bedroom. The complainant did not remember when this was done. However, the incident involving the application of the cream occurred in her parents' first bedroom. In cross-examination, the complainant stated that she did not recall that the applicant's penis was particularly hard at the time; it was lying along his pubic bone and facing up towards his head. She said at the time she did not know what an erection was. She said that when she saw her mother (who had been away at Tresillian or elsewhere getting assistance for the twins and perhaps not overnight) she did not tell her about the incident because she was confused and shocked and felt she could not trust her mother not to tell the applicant.

Other evidence showed that the complainant's mother stayed overnight at Tresillian for five days between 18 and 23 January 1986 so that the complainant would not have been at school at the time. However, the complainant said that she was sure that the incident occurred some time at the end of 1985 or early 1986 when her mother was not in the house. The complainant's mother gave evidence that, after her stay at the Tresillian centre, she would go there for a couple of hours during the day so she could sleep whilst they minded the twins and would be back at home during the day because of the school holidays. Records showed that the complainant's mother attended day visits at the Tresillian centre between 29 January and 22 April 1986. This act of indecency was that charged in count 2.

The next incident allegedly occurred when the complainant was about 12 years old, in 1986 when she was in year seven. In an exam period during the year she became very anxious and was not able to sleep so she went into her mother's room, asking for a cuddle. The complainant said that her mother got "quite cranky with me and asked if Peter could go and sort it out... So I wasn't allowed to stay". She went back to her bedroom and got into bed, followed by the applicant. They were underneath a doona. He lay beside her and started to cuddle her -

"And then he whispered into my ear, 'This is what you should do when you can't get to sleep' and I didn't know what he meant by that, but he then put his hand down my pants and began to masturbate me for quite a while, and I didn't know what was happening. I just froze really. I just didn't know what to do. I felt terrible, but I just didn't know what to do.

...

He was moving his finger around my clitoris for a while and around the labia minora and he would also a few times stick his finger into the opening of my vagina just partially and then move back up to sort of move his finger around my clitoris and the, you know, the labia area of my vagina."

(The complainant said that she did not know the anatomical terms at the time, but learnt about them later.) The complainant said that she recalled saying to the applicant repeatedly that she was okay and he could go, feeling that she was unable to be very assertive. Eventually he left. This offence is charged in count 3 of the indictment.

The complainant said that, shortly after, within days, again she was unable to sleep, being very anxious and went into her mother's bedroom again -

"I just remember the same thing but this time I felt absolute dread because I sort of knew what might happen as opposed to the first time where I really didn't know what was going to happen and he came again into my bed and put his hand down my pants and did the same thing, masturbated me but this time I remember my mum came down the hallway and interrupted and he pulled his hand out of my pants very quickly which was the first indication that I had that let me know that he really knew that what he was doing was wrong and then I realised it was very wrong too.

...

It was the same as the first time, fingers moving round my clitoris sort of in a circular motion, down around the inner areas of the labia and then dipping into the opening of my vagina so just one finger and just sort of dipping it in."

In cross-examination the complainant said that she believed the bedroom door was partially open. She did not recall her mother coming into the bedroom but she knew it was her mother because she saw her and her mother asked if everything was okay. Following this incident, the complainant did not go again into her mother's bedroom for a cuddle in the middle of the night.

Obviously anticipating evidence from the complainant's mother, Mr Odgers SC for the applicant put to the complainant in cross-examination that there was only one occasion when her mother told the applicant to help the complainant go to sleep. The complainant denied this, saying, "I believe that it happened more than once and definitely twice". She also disagreed that the applicant was in her room for two minutes at most, saying that "it felt like about 15 minutes" on both occasions. She described the second occasion as "a very similar scenario" adding, "although I believe the second time I felt absolute dread about what may happen if he came to my bedroom. And I believed that I tried to stop it, I said, 'No, no I'll be okay, it's fine, don't worry about it, I'll be okay', but he came anyway". In her statement to police the conversation about not worrying and being okay was made after she had returned to the bedroom and the applicant was there with her.

One of the issues in the trial concerned the timing of the counts 3 and 4 incidents. The complainant's best recollection was that they occurred after the renovations which, she believed, had occurred in 1986. However, she also stated that she was sure that she was 12 years old at the time and attending Queenwood School. She accepted that the house was renovated in stages and that the last stage was the construction of her parents' new bedroom, which commenced in 1988 and continued until 1989. The builder informed the investigating police officer that the work was carried out in stages over a number of years, the major works being carried out in about 1988 and 1989. The complainant said that, when questioned about whether she became aware from conversations with police that there was a question mark about this date, it was possible her recollection of the position of her bedroom was not as sure as she thought it was. The Crown contended that the complainant was mistaken as to when the events giving rise to counts 3 and 4 occurred, submitting they occurred prior to the major renovations and not after. In short, the Crown submitted that the complainant's evidence as to her age when these incidents occurred should be accepted in preference to her placement of them by reference to the renovations.

An additional occasion led by the Crown, though it was not the subject of any charge, occurred when the complainant was 14 and "was really controlling what I was eating". She said that she was in the bathroom and the applicant had said to her, "Mum's asked me to come up here to talk to you... Why are you doing this... to yourself?... You know that I think you're beautiful" and gave what the complainant described as "a really sort of sleazy sloppy kiss on my forehead while I was in the bath naked alone". She said, in effect, that she remembered thinking that the applicant was inappropriately attracted to her and knew it was wrong and that she also knew it was wrong "but it was a very uncomfortable situation for me. I felt really vulnerable and just horrible". Cross-examination proceeded on the basis that it was accepted that there was an occasion when she was in the bathroom and the applicant had said words to the effect of her evidence, but that he did not enter the bathroom at all, and did not kiss her on the forehead; furthermore, it was put to the complainant that at that time there was in fact no bath in that bathroom. She rejected these three propositions. (Mrs Versi gave evidence to the effect of the cross-examination, which I deal with below.)

Complaint

The complainant said that the first person she told about the applicant's misconduct was her brother Nicholas. She was 12 at the time and Nicholas was 10. She said that they were together in her bedroom with the door closed. She said that she was not sure what she told him but said "there had been inappropriate sexual behaviour from Peter, and I remember his response was along the lines of, 'Oh no, not this too'." As she understood it, this was only a reference to something that concerned him but otherwise it had no sinister connotation. Nicholas gave evidence that, when he was 11 or 12, before the renovations had begun he was in the complainant's room when she told him that "she had to rub cream on Peter's penis". His response was to say, "Oh, no, not another thing". Nothing else was said on that occasion. In another conversation which occurred between them after the complainant's and Nicholas' father had died (5 August 1995) when he was 20 years of age she told him that "he would come in at random times in the night and masturbate her. And - that again she looked at me", as he felt, to ask "Is this right?"

In year seven or eight the complainant said that she also told her friends Pip Smith and Donna Duggan (who was not called) but could not recall what she said to them. The former gave evidence that, when she was about 12 years old and in about year seven, she and the complainant were at the latter's house when the complainant told her that her stepfather had put his fingers inside her vagina and massaged her. The complainant also gave evidence that she wanted to tell her science teacher, a few days after the bedroom incidents but felt unable to do so.

The complainant said that she did not tell her mother about the incidents because she did not trust her. She believed that she would tell the applicant about it as that had been what she did in the past whenever she tried to talk to her about anything confidentially. The complainant said that she was scared of the applicant, who was the authority in the house and very controlling, and at times aggressive and violent. She said that he "used to scream at me a lot and really didn't feel that I could handle that".

Towards the end of 1988 (although in cross-examination she accepted that it was possible that it was the end of 1989), when the complainant was in year nine, she and her brother were taken by their mother to see a psychologist, Dr Margeson-Towndrow in Bondi Junction because, as the complainant put it, she was an anxious child and her mother believed that she was not coping with the divorce. She had not yet told her mother about the applicant's misconduct. The complainant thought there was more than one session. She spoke to the psychologist alone. She recalled, after general conversation about her life, the psychologist asked, "Is there anything else that's troubling you?" The complainant said that she asked if she had to keep confidential anything that she told her and, after being assured that it was just between them, told the psychologist what had happened involving the applicant. The psychologist, as it appeared to the complainant, was obviously quite concerned and mentioned that she needed to try and find a safe place for the complainant to live, mentioning the possibility of going into boarding school. At no time did the psychologist mention telling the complainant's mother about it.

It appears that on the next day or so Dr Margeson-Towndrow spoke to the complainant's mother about the issue. The complainant did not give evidence of exactly what she understood the psychologist had said. I gather, however, that she believed it was about the applicant's sexual misconduct. (Mrs Versi gave evidence about what she was told, which I summarise below.) The complainant said that she was at her father's house for the weekend and her mother called her "quite hysterical and very determined to find out what it was that I needed to tell her". The complainant said she would tell her when she got home and that the conversation occurred in the late afternoon or early evening of that day.

It seems from this that the psychologist had told the complainant's mother that there was an important issue but did not explain what it was. The complainant said that she does not remember exactly what she told her mother but she remembered her mother saying that she was sorry that this had happened, to leave it with her and she would sort it out. The complainant remembered feeling very relieved. However, on the following day, "I was absolutely in the biggest strife of my life". She said that her mother was no longer supporting her but obviously supporting the applicant who had denied any misbehaviour and they both accused the complainant of "making it up to cause trouble to destroy the family". She said that they screamed and yelled at her to think about the consequences of the applicant going to gaol and how that might affect the twins. She said she was terrified and "just felt like I'd been thrown into the deep end of a swimming pool with absolutely no one there to support me or back me up and I just didn't know what to do". She said her mother and the applicant screamed at her "Get on the phone and ring [the psychologist]". So she telephoned and said, "Just forget about it... It didn't happen. Just forget about it. I'll be okay, I'll be okay". She was unsure about what happened at that point but later (shortly after, as I understand it) they all went to Dr Margeson-Towndrow's office for what the complainant described as a "sort of a mediation session". She said that she went in to see the doctor independently whilst her mother and the applicant waited in the hallway outside "but I don't really remember how it was sort of finalised or resolved. I just don't know what happened but it just was from that day on kind of swept under the carpet really".

In cross-examination, it was put to the complainant that she "did not in fact recant either to [her mother]... or to Dr Margeson-Towndrow". She answered, "I don't have any recollection of that" and, shortly after, said that she was not sure that she said to her mother that the allegations she had made were not true. She said that, after the call to the psychologist and telling her that the allegations were not true the topic was heatedly discussed again between her, her mother and the applicant, during which, although she could not remember the details, she said "my stepfather actually admitted that he had crossed the line and made a mistake, but that he was just trying to help me, and I don't remember my Mum's response to that, but obviously that satisfied her". She did not remember him elaborating. In her statement to police of 5 September 2008 the complainant had said -

"During this conversation Peter acknowledged in front of my Mum that he had molested me or touched me inappropriately. Peter said, 'I know I might have crossed the line and made a mistake, but I was just trying to help her and teach her how to get sleep'."

The complainant confirmed that this was her memory of the conversation. (As is clear from the above, the complainant had not mentioned the applicant's admission when giving her evidence-in-chief of these conversations.) She was not aware that the applicant ever confessed in any way to Dr Margeson-Towndrow of wrongdoing.

Evidence was admitted from the investigating police officer as to her conversations with Dr Margeson-Towndrow, who informed her that she used to practice in the Bondi Junction area but only kept patient records for seven years and did not have anything relating to a child with the complainant's name or any recollection of a patient by that name. She said that she saw approximately 500 children a year.

The Crown tendered a letter dated 19 May 1991 which the complainant said she found in her diary. (There is no reference to it in the diary and the fact that it was written on that date depends entirely on the complainant's evidence to that effect.) The letter says -

"I am sick of living like this. I want a normal family.

We are living under a time - bomb - Peter. He is irrational, unpredictable and selfish. I hate him.

No body believes me about what he did to me. No one ever speaks about it. I think they have just dismissed it as me making up the whole story. I hate the way he has so much control over my life and so much dominance over mum, when I know what he is really like. I feel sorry for mum, because she has to put up with it for many years to come. But as soon as I leave school, my first priority is to leave home to get away from Peter."

The complainant's evidence about her attitude to her stepfather was, as I understand it, not so much that she hated him, although she did at the time she wrote the letter, but "there were times when I was very scared of him and frightened by him and confused by him and that I didn't like him very much at times." She was taken to the fact that her mother had divorced her father, although she was very young being only four at the time, and thought that she would have been happier had they remained together but she had no real recollection of what it was like when they were together. She resented somewhat the fact that the applicant loved his twins more than she and her brother, although she also loved them. This cross-examination was designed, as I understand it, to demonstrate some motive for the making of false allegations against the applicant.

During 1993, the complainant moved out of home for six months, renting a unit with a friend and supporting herself with a part-time job whilst she was studying. She then moved back home because she was planning to defer university in 1994 and travel overseas with her boyfriend and could not afford to pay rent and support herself at university. There was an altercation between her and the applicant when he threw out a model she had made for her studies and the complainant then went to stay with her father and grandmother until she went overseas. Towards the end of 1993 she spoke to her father's wife, Cheryl (implicitly though it is not altogether clear) about what the applicant had done and told her that she wanted to tell her father but that Cheryl asked her not to because he would be very upset about it and she worried what he might do since he and the applicant did not have a good relationship. Her father died in 1995.

The next occasion that the complainant spoke to a professional person about what had happened, of which she gave evidence, was when she was about 19 (thus, about 1993) and went to see her general practitioner, Dr Phelps (whose married name was Fronzek) and explained that she had been abused by her stepfather although she did not go "into a huge amount of detail". She was referred to a counsellor, Ms Janet Alexander. The complainant could not recall whether she gave Ms Alexander any details or merely spoke about the allegations in general terms. She saw her several times before a mediation session took place with her mother, during which her mother became very upset and angry with her and accused her of causing trouble and stormed out of the room. The complainant said that she found this traumatic and difficult to deal with. She said that she could not recall whether she went back to see Ms Alexander to "have a bit of a debrief, but given the negative experience of it, I didn't feel like I wanted to go back".

In cross-examination (again, I think to deal with matters which were expected to come from her mother) she said that she had no recollection of seeing Ms Alexander in 1990. She was further asked in cross-examination -

"Q. I want to suggest to you that you did go to see her and that after counselling with her, that you did retract - on that occasion, the allegations that you made about Mr Versi?

A. I have no memory of that.

Q. I want to put to you that you in that period when you were being counselled by Jan Alexander, you were expressly asked if Peter touched you inappropriately and you replied, 'No nothing like that', do you recall that conversation?

A. I don't recall that at all."

Also during cross-examination, she said that she did not recall asking Ms Alexander to keep everything she was told confidential or telling her that she did not want to go to court. When the mediation session proved ineffective, she did not go to the police at that time because -

"I just don't remember anyone ever suggesting that that's what I should do and I, you know, had had such a bad track record of disclosing it and not being believed that I really didn't know that that's what I should do."

The evidence of Ms Alexander

Ms Alexander specialised in individual and family therapy. From mid 1991 she started working in Neutral Bay, initially at a townhouse and then in premises almost next door. Her practice was to keep all her files and she had no records of consultations with the complainant or her mother prior to 1994. Her records showed that the complainant was referred on 21 October 1994 for counselling in relation to issues involving child sexual abuse and emotional abuse by Dr Fronzek (whose referral letter was produced). She first saw the complainant on 26 October 1994 when, amongst other things, she obtained a fairly extensive family history. Her notes were tendered and admitted without objection. Ms Alexander believed that 1994 was the first time she met either the complainant or her mother for two reasons: first, that the referral note starts a file and, if she had already seen them the file would already have been in existence and would simply have continued; the other reason was that she could remember Dr Fronzek called and said her she was referring the complainant to her and asked whether she would take the case, partly because the family was well known (although they were not well known to Ms Alexander). In cross-examination, Ms Alexander said that she did not believe that she had misplaced any file, perhaps because of the move, and that her usual practice was always to have a file, even if she only saw a person on one occasion. She conceded that, in retrospect, she had possibly encountered the complainant's mother socially but definitely had no real awareness of her until 1994.

In substance Ms Alexander's evidence was that her memory relied entirely on the notes, which to some degree were abbreviated and in shorthand. In effect, she translated them onto the record. The following sets out what she said in point form -

26 October 1994

Consultation with the complainant and also her mother

- The complainant lived with her mother until two years earlier.

- The complainant's father lives in Palm Beach and that she didn't see him.

- She told her mother about the child sexual abuse/assault when she was 14. She was at first believed and then not.

- The first person she told was a doctor.

- The abuse started at age 8 and ended at age 14.

- Her mother abused and yelled at her and as a result the complainant asked the doctor to not pursue the case to welfare.

- The applicant verbally abused her.

- Her mother denies the effect of the abuse on her.

- The effect of the abuse was that (1) she was angry with the applicant and with her mother for not protecting her. She wants her mother to understand and be sorry; (2) she has nightmares about the applicant which occurred more often when she lived in the house; (3) she felt sadness about the loss of her childhood; (4) she was more moody and would snap if treated badly.

- She would pretend that it didn't happen.

- There had been a bad argument in May and had not seen or spoken to the applicant since.

- She had gone overseas between June and September where she was often upset and realised she needed to confront her issues.

- The complainant's aim was to seek to get her mother to believe her, and to tell her father.

- The complainant's mother said: "Not to feel like I'm on trial all the time" and that the complainant doesn't get angry about small things.

- The complainant wanted her mother to accept that something had happened, and that what they talked about was not to go beyond the counselling room

- The complainant's father would be angry if he knew; that he was a cold and lazy father who made promises but didn't keep them; he found it hard to express love.

- The step-father has admitted to being in bed and masturbating the complainant to "help you get to sleep"; 2 times in bed with the complainant; gave a prolonged kiss on the forehead; made her stand up in the bath when naked and anorexic at 14 years of age; the complainant started the apple diet at age 13 and was vomiting between 16 and 17 years of age.

- The complainant wanted: (1) that the matter not go to court; (2) to establish a comfortable relationship with her mother; (3) to increase her self-esteem and become more positive about herself.

- Dr Margeson-Towndrow in Bondi Junction - that the applicant apologised and admitted masturbation of the complainant to the counsellor i.e. Dr Margeson-Towndrow.

At a follow up session on 25 November 1994 the following was noted -

Consultation with the complainant's mother and the applicant

- The complainant had glandular fever in Year 7 and was in bed for 6 weeks; she was depressed; suffered urinary tract infection; in hospital in March Year 12 HSC - Tired for many years; Year 9 Ascham (left Queenwood)

- The applicant very angry about the complainant's rudeness and behaviour towards her mother; also her messiness; he was close to her when she was younger; accepted her as his but did not interfere with her relationship with her father.

On 2 December 1994 there was a further session with the applicant and the complainant's mother during which the former appeared very angry about the allegations of abuse but nothing appears to have been resolved. That was the last meeting involving Ms Alexander.

(It seems strange - and it was not explained why this was so - that, despite the references in the notes to consultations both with the complainant and her mother, nothing is noted about what the latter was asked, if anything, or her reaction to the allegations. The only statements noted were that Mrs Versi did not want to feel as though she was "on trial all the time" and that the complainant did not get "angry about small things". However this oddity was not the subject of questioning, so I say no more about it.)

After 1994

There was further evidence from the complainant about the relationship with her mother after 1994, the complainant saying that she tentatively rebuilt her relationship with her mother on the basis that she did not "rock the boat" and respected the applicant as her husband. The family went on a trip to Italy, and she enjoyed herself, although she and her brother did not stay in the same accommodation as her mother and the applicant and the twins. Although the applicant gave her away at her wedding, she felt obliged to accept the applicant's suggestion that he walk her down the aisle because he and her mother were paying for much of the wedding. After the birth of her first child in August 2002, she asked her mother to visit her, but denied inviting the applicant to come and stated that she felt uncomfortable when he did so. She asked her mother to baby sit on one occasion for a few hours, possibly more than once, but felt uncomfortable about leaving her daughter there.

Over the years a number of postcards and cards were sent by the complainant to her mother and the applicant including father's day cards and birthday cards, which contained handwriting as well as the conventional printed message expressing warm affection. The complainant said that she continued to love her mother even though her mother did not support her.

The complainant's mother

The complainant's mother was called by the Crown. She married the applicant in October 1981, having separated from the complainant's father about two years previously. At the time of their marriage they lived in a house in Mosman with the complainant and her younger brother and, in 1983 they moved to the second house in which there were two upstairs bathrooms, one of which was renovated when Mrs Versi was pregnant with the twins. By the end of the renovation there was a new bedroom and an additional bathroom. Before the renovations, the applicant's and Mrs Versi's bedroom was next door to the complainant's, the doors being a couple of metres away but afterwards it was on the other side of the house.

On 15 November 1985 the complainant's mother and the applicant had twins. Mrs Versi said that sex education was given whilst the complainant was in year five. She went to the information night and thought it was "far reaching for very young children". She had spoken to the complainant about menstruation and told her that if anyone touched her inappropriately she should tell her. She also gave the complainant some books to read. It may be that year five was year four, when the complainant was nine years old. Mrs Versi said that her relationship with the complainant until 1987, when she turned 13, was a close and happy one. She said that the complainant was a worried and anxious child. On occasion she would talk about her feelings towards her father and stepmother and sometimes criticise them. Mrs Versi agreed that the applicant at times would raise his voice or lose his temper at home.

So far as attending Tresillian with the twins was concerned, she confirmed that she was there between 18 and 23 January 1986, which period included a weekend. She believed that the complainant and her brother stayed with their father during this occasion. There were also other visits to a Tresillian centre early in 1986 but she did not stay overnight and would always be home before the complainant and her brother were home from school. She said that the applicant was a "fabulous stepfather to the children" and she had no concerns about leaving him in charge of them.

Mrs Versi said that the applicant did occasionally suffer from rashes and would have to apply a cream and there was one occasion when, following the children and the applicant playing tennis out in the street they came upstairs because the applicant needed to apply some cream to a rash. The children told him to hurry up because they wanted to go and play more tennis. Mrs Versi said that she gave the applicant some cream. He went into the bathroom. The children were running around in and out of the house. Mrs Versi said that she was on the other side of the hallway upstairs with the twins and the applicant put the cream on and said, "I can't play tennis anymore. My leg's too sore". The children were "disappointed and they were still nagging him and we all went downstairs". She said that the rash was not in the genital area, but more like the upper leg/ groin area. It was not on his testicles or his penis. She had on occasion seen cream being applied by the applicant to a rash in that area. Her evidence is somewhat unclear about this but it may have been that the door was open whilst the applicant entered the bathroom to apply the cream. Mrs Versi did not believe that the complainant and her brother had played tennis with the applicant in the afternoon after school when she was not home, because he would have been at work.

In relation to the bathroom incident, when the alleged kissing occurred, Mrs Versi stated that she recalled one night after dinner asking the applicant to speak to the complainant after the evening meal when the complainant had gone to the bathroom and she was worried that she was going to make herself vomit since she was worried about her weight at the time. She said that the complainant was not really listening to her at this time. She asked the applicant, "Can you please go and tell her because I think she's going to put her finger down her throat straight after dinner. Can you please knock on the door and tell her that she's beautiful and she's thin enough as she is". She said that she stood at the bottom of the stairs so she could see what happened. The complainant was about 13 or 14 at this time. She said that he did not go into the bathroom but stayed in the hall. She was cross-examined (with leave) by the Crown about her statement to the police in which she said that she "was present standing behind Peter". She said that she meant by that statement that she was standing behind him downstairs and could see him. Mrs Versi could not recall whether the bathroom door was open or closed at this time. She said that there was no bathtub in that bathroom. She was adamant that the applicant did not enter the bathroom.

So far as the allegations in counts 3 and 4 are concerned Mrs Versi confirmed that she had tried to get the complainant to sleep a few times that night and asked the applicant to help her. She said that the applicant would not have gone into the complainant's room unless she asked him to and, generally, if he went into the room to say goodnight she would be with him. She said that the applicant had never gone into the complainant's room in the middle of the night and did not recall an occasion when the complainant came into her bedroom in the middle of the night because she was upset or nervous and could not sleep. She confirmed that there was a period whilst the complainant was a student at Queenwood when the complainant had trouble sleeping. She recalled an occasion (because it was a "very difficult night") when the complainant came out into the hall after having been put to bed, telling her and the applicant how much she was having trouble going to sleep. (She later said the complainant "must" have come into the bedroom, but she did not recall this.) Mrs Versi said that she put her to bed many times and tried to calm her down but "had run out of steam, so to speak, so I said to Peter... 'Can you please see what you can do to help her go to sleep?'" She said that she lay in bed awake because she never went to sleep until the children were settled. The applicant was gone for a minute or so and came back to bed. She said that it could not have been for as long as 15 minutes since she would have got up to see what was happening. Nor was it 10 minutes; it was much shorter. She said that it was not possible that she fell asleep before he returned. She said she did not walk to the complainant's bedroom at any time before the applicant returned. She did not recall any other occasion except for this one time. She said that there was never an occasion when she walked down the hallway to the complainant's bedroom and asked something like, "Is everything okay". Nor could she recall any occasion where she asked the applicant to help the complainant go to sleep but the complainant said not to worry and she would be okay.

So far as Dr Margeson-Towndrow is concerned, Mrs Versi said that she took the complainant to see her when she was about 15 because she thought that the complainant would benefit from someone to talk to, since she was a teenager from a divorced family. She did not go with the complainant. After the session, she was called in and Dr Margeson-Towndrow told her that there had been some incidents in their home that she thought were improper. The instances that she mentioned were, firstly, when the complainant had accidentally sat in turpentine that had tipped out from a bottle, the second where the applicant had gone to the bathroom to tell her that she was beautiful and must not lose anymore weight, the third that she had been asked to put some cream on his private area because he had a rash and a fourth where he had gone to her bedroom one night when Mrs Versi had asked him to put her to sleep. Mrs Versi said that the complainant was not there when this conversation with Dr Margeson-Towndrow occurred.

Shortly after receiving this information, although she could not say exactly when, Mrs Versi spoke to the complainant. She said that she was "pretty hysterical. My whole world had crashed down, so I couldn't believe that normal things that had happened in my household were suddenly something that I should think were sinister". She said that she spoke to the complainant either at home or in a telephone call and the applicant was not present. She could not remember what the complainant said at this time. She said that she could not recall taking the complainant back to Dr Margeson-Towndrow. She said that there were no meetings or mediation sessions with Dr Margeson-Towndrow involving her and the complainant or the applicant and the complainant. She could not recall whether the applicant himself went to see Dr Margeson-Towndrow. However, she later said that it was possible that she and the applicant went with the complainant to see Dr Margeson-Towndrow for some kind of mediation. After the initial conversation with the complainant she agreed that there must have been other conversations in the house which "was in turmoil" involving her, the complainant and also the applicant in the day or days immediately after she became aware of the allegations. She said that when she saw the complainant at home she did not recall saying to her that she was very sorry that this had happened and to leave it to her to sort out although she did not deny that it was possible she said that. She said that what she had been told by Dr Margeson-Towndrow turned her world upside down and made her feel hysterical. She agreed that it is possible that she screamed at the complainant and also that the applicant did so. She denied that she threatened the complainant in any way or accused her of trying to destroy the family or that the applicant had done either of these things. She did nothing to attempt to force the complainant to recant the allegations nor, so far as she saw, did the applicant do so. She did not tell her to ring Dr Margeson-Towndrow to recant nor, so far as she was aware, did the complainant recant at that time. The applicant did not make any kind of admission of inappropriate touching of the complainant. She said that there were probably many conversations because the household was "in total turmoil" but that she did not recall any occasion when she, the complainant and applicant were having a discussion and the applicant said, "yes, he had crossed the line and made a mistake but that he was just trying to help [the complainant]" but, if it occurred, she did not remember it. She later said, "I guess it's possible. It's a very long time ago". In cross-examination by Mr Odgers she said this conversation had not taken place in her presence. She said that it was possible that she said to the complainant, "Why are you doing this? I can't - I can't deal with this". This occurred such a long time ago and she could not recall all the conversations she had.

Mrs Versi said that she knew Ms Alexander both in a professional capacity and as a friend (rather meaning, I think, as an acquaintance). She first met her in her professional capacity in 1990 after having seen Dr Margeson-Towndrow. She said that the complainant had counselling with Ms Alexander as did she and the applicant. They all had counselling together. This was in 1990 and definitely not in 1994. She said that during the 1990 counselling sessions, they addressed all the issues raised by Dr Margeson-Towndrow which were resolved. She said that, when the complainant was asked whether the applicant had touched her inappropriately she said, "Nothing like that". Mrs Versi said that she believed that innocent situations had, in effect, been misconstrued so that is why, after having given the matter a great deal of thought, they went to Ms Alexander in 1990, shortly after seeing, as I understand it, Dr Margeson-Towndrow. She said that as she recalled it, the complainant was still at school, which she left in 1991. What she described as "this resolution" was obtained with Ms Alexander before the complainant did her HSC, which was in 1991.

Mrs Versi said that the complainant lived at home until 1993 and she never observed anything abnormal about her behaviour towards the applicant. Nor has she seen the applicant ever being violent towards the complainant. She said that they helped the complainant when she moved out of home in 1993, that the complainant then returned and moved out again in 1994. She did not recall any incident involving the applicant throwing a model, which the complainant had made, out the front door. Mrs Versi said that she saw Ms Alexander again in 1994 because she was traumatised over the falling out with the complainant following a big argument, which resulted in the complainant leaving the home. She said that the argument, was about the complainant's behaviour. She was being argumentative, abusive and had struck Mrs Versi. She went to Ms Alexander for help alone without the complainant.

In 1994, when Mrs Versi went to Ms Alexander following the falling out with her daughter, she became aware at some point that the complainant was again making allegations of inappropriate behaviour by the applicant and she went to see Ms Alexander with him. There was some discussion of the allegations which were angrily denied by the applicant. Mrs Versi could not recall a counselling session with the complainant and could not recall any of the things recorded in Ms Alexander's notes. At no point did the applicant make any kind of admission of touching the complainant inappropriately.

As to the complainant's wedding, Mrs Versi said that Nicholas had wanted to give the complainant away and the complainant said to him, "just butt out, I don't want you to get involved, I want Peter to walk me down the aisle". When her child was born, Mrs Versi said that the complainant called and asked if she and the applicant could go, saying, "are you sure you want both of us to come?" and that the complainant replied "yes I want you and Peter to both come immediately".

Mrs Versi also gave evidence, that in the early 90s (as I understand it, occurring on a number of occasions) when, the complainant "would come into our bathroom when she had two other bathrooms to use and sit on the loo when he was in the shower and I was at the basin... chatting to us at the same time like she was just a normal daughter".

Evidence of SD1

The evidence of SD1 was admitted in relation to count 2 only, as coincidence evidence. She was born in 1965 and her younger sister in 1968. When she was five years old her parents separated and, in January 1975, her mother married the applicant. In 1979, when she was 13 and in year eight at school, they moved to a second house. The incident in respect of which she was called to give evidence was related by her as follows -

"Q. As best you can, [SD1], can you describe what you recall happening in relation to that incident?

A. Yes, I came home from school one afternoon, I was on my own. I proceeded down the hallway of our house at... The bathroom was on the right-hand side as I came down the hallway and as I passed the bathroom on the way to probably the kitchen, I observed Peter in the bathroom. I could see him facing the mirror. He was wearing his bathrobe and I could see the reflection in the mirror that he was naked. He called me in. He said he was having trouble with his hernia. I was aware that he had a hernia, I didn't know the exact details but I believed it was, you know, in his groin area. As l drew closer to the bathroom I could see that there was a - that the bathroom basin was full of water. He called me over and asked me to hold his - I noticed his penis was erect and he wanted me to hold his penis so that he could fix his hernia. I did that. I came up to his right-hand side and used my right hand to hold his penis. He then proceeded to sort of grind his hips against my hand. I had to adjust my grip a few times because it was quite awkward. After a while I started to feel very uncomfortable so I said I didn't want to do it any more and I stopped, and then I left the bathroom. I can't remember if he said anything to me but I just remember feeling very uncomfortable and wanting to remove myself from the situation."

Nothing like this had occurred previously nor, up to the time the applicant and her mother had separated in about mid 1980, did it happen again. Nor did her sister ever mention to her that anything like this had occurred to her. The applicant did not tell her not to say anything. Following the separation SD1 and her sister visited the applicant for a while at her mother's insistence, but she found the visits uncomfortable. She did not see the applicant after the end of 1980. Although SD1 was upset about the effect of the divorce on her mother, she denied any feelings of hostility or animosity towards the applicant.

SD1 said that she came to make the statement following enquiries made by the investigating officer of her mother. She was informed by the officer about allegations of sexual impropriety against the applicant but not given any detail in respect of them. The officer's evidence was to the same effect.

Evidence of the applicant

The applicant's evidence commenced with the allegation made by SD1. The applicant denied that this event occurred. He agreed that in 1979 he had a problem with an inguinal hernia, which he had for six or seven years.

The applicant denied ever showering with the complainant and ever having tickled her and touched her in the vaginal area. He gave evidence also about an incident in which the complainant spilt some turpentine whilst working on a cabinet in the carport. The complainant sat in it and it burnt her. The applicant was not present at the time although he heard some yelling and screaming. Mrs Versi asked him to carry the complainant upstairs because she was too heavy for her to do so. He said he took her up to the bathroom and Mrs Versi attended to her, he assumed by washing her. He said that he did not touch her inappropriately in any way. So far as the complainant suffering from thrush at various times during her childhood, he denied ever touching her vaginal area to treat this condition. He recalled a time when Mrs Versi stayed overnight at a Tresillian centre for a number of days shortly after the twins were born. He recalled that during this period both the complainant and her brother went to stay with their father. He recalled playing tennis in the street on occasions with the complainant and Nicholas, although not specifically on any occasion when Mrs Versi was not at home. He did recall playing tennis in the street at a time when he had a heat rash problem on one occasion. He said that he stopped playing and went inside the house. He said the inside of his leg close to his groin but also quite a way down the leg started to bleed so he asked Mrs Versi for something to put on it that might help. He said that he had been doing a lot of running and sport and it had started some days before. She brought him some cream which he applied to the area in the upstairs bathroom. He said at the time the children were running around because they were trying to get him to go back to play tennis but he thought they came up to the hall outside the bathroom. He said that he never asked the complainant to place cream on his penis and testicles.

He recalled an occasion when the complainant came into their bedroom saying that she had trouble sleeping and Mrs Versi told him to go with her to her bedroom. He said that Mrs Versi had been to see her many times that night and they were both awake. Eventually Mrs Versi asked him to go to see if he could get her to go to sleep and he did so. He said that he got up, put on some clothes of some kind which he could not recall, and went to the complainant's bedroom for perhaps up to two or three minutes. He went to find out what was wrong and why she was not going to sleep and would have asked her what was wrong. He denied getting into bed with her and touching her around the vaginal area. He said it was not possible that he was in the room for 15 minutes. He does not recall any other occasion when Mrs Versi asked him to go into the complainant's bedroom to help her go to sleep.

Callinan J referred also (Ryan at [175]) to the reduction of the effect of good character where a series of crimes are deliberately and carefully planned and executed (citing R v Morley [1985] WAR 65).

Although it is fair to say that it is appropriate in cases of child sex offences to limit the significance of the offender's otherwise good character, the extent of so doing is not fixed: the particular facts are important. Thus, in R v Kennedy [2000] NSWCCA 527, Howie J (Simpson J agreeing) said -

"[21] It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.

[22] Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant."

See also R v Gent [2005] NSWCCA 370; 162 A Crim R 29 per Johnson J (with whom McClellan CJ at CL and I both agreed) at [45] - [69].

I would also add, though perhaps it does not need mentioning, that obviously the nature and extent of the character evidence must also be taken into account. In this case, that evidence, together with the isolated and aberrant nature of the two offences calling for sentence, indicates, to my mind, that it should be given somewhat more than slight weight.

The second issue concerns the complainant's age at the date of the offence in count 3. There can be no doubt that, as a general rule, the younger the victim of a sexual assault, the greater is its objective seriousness: see, for example, PWB v R [2011] NSWCCA 84 per Beazley JA (as her Honour then was) (at [11]), where her Honour observed (references omitted) -

" ... [The] case law recognises the seriousness of sexual offending against younger persons, including, as a general proposition, that the younger the child, the more defenceless and vulnerable the child will be. The case law, over the last two decades at least, is consistently to the effect that in sexual offence cases, the younger the child, the more serious the criminality".

Her Honour added (see [12]) that the particular vulnerability of a child of young years is recognised by the principle that, even where the age of the victim is an element of the offence, the age of the child within the specified range is still material.

Although the evidence would not justify a finding, adverse to the applicant, that the complainant was aged less than 15 years at the time of the count 3 offence, as mentioned above, senior counsel for the applicant, at first instance, submitted that the complainant was about 12 years of age at the time of both offences. As mentioned above, the judge made no finding about this. However, it should be inferred that his Honour acted upon the basis of the agreed position. This question was not agitated in the appeal except in the sense that it was submitted by the applicant that the sentences should have been concurrent and by the Crown that the accumulation was appropriate. In my view, this Court should proceed on the basis put by the parties in the sentence proceedings.

The third important consideration is the significance of delay, both as to the weight to be given to personal and general deterrence and the effect of the sentencing practices as they applied at the time of the offences.

It is appropriate to accept the primary judge's findings that the two offences were isolated and the applicant poses no risk of re-offending. The following observation of Howie J (with whom the other members of the Court agreed) in Regina v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 applies -

"[81] ... In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court."

These observations were repeated by his Honour (with whom the other members of the Court agreed) in AJB v Regina [2007] NSWCCA 51; (2007) 169 A Crim R 32. Commenting on the practice in 1982 (until the commencement of the Sentencing Act 1989) that a non-parole period was fixed somewhere between a third and half of the term of the sentence, his Honour said (at [39]) -

"... [One] consideration in determining ...[the] non-parole period was the seriousness of the offence and the requirement of general deterrence. General deterrence was not a significant matter in the applicant's case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct."

Furthermore, in light of both the isolated and aberrant character of the offences, the absence of subsequent offending, and the minimal likelihood of re-offending, it was also appropriate to sentence the applicant on the basis that personal deterrence is a factor of little significance.

Noting the observation of Howie J in AJB at [31] that it was not appropriate for the Court "to try to replicate, not only the sentencing practices of 1982, but also the executive practices of that time in respect to the treatment of prisoners", Basten JA (with whom RS Hulme and Schmidt JJ agreed) said in Rosenstrauss v R [2012] NSWCCA 25 -

"[11] The remission system operated not pursuant to the general law, or executive act (although there were areas of discretion) but pursuant to regulations made under the Prisons Act 1952 (NSW) and, at the relevant time, the Prisons Regulation 1968 (NSW). The entitlement to 'ordinary' remissions varied depending upon whether the offender had previously served a period of imprisonment of three months or more. If so, he or she was entitled to remission of one-quarter of the sentence period; if not, the entitlement to remission was one-third of the sentence period. (The relevant provisions are conveniently found in Smith v Corrective Services Commission(NSW) [1980] 2 NSWLR 171 at 183-185, in the judgment of Hope JA; see also Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134 and Green v Corrective Services Commission (NSW) [1982] 1 NSWLR 327.)

[12] As explained by Gleeson CJ, Hunt and Loveday JJ in Maclay, it was established principle that the sentencing judge should not increase the sentence to counteract the effect of anticipated remissions on the period to be served. However, that did not mean that the court ignored the anticipated remissions. With the introduction of the parole system pursuant to the Parole of Prisoners Act 1966 (NSW), it became necessary for the sentencing judge to take account of the likely diminution on account of remissions in order to avoid 'the absurd result that a prisoner would be, as a result of the remissions system, released before the expiration of the non-parole period specified by the sentencing judge, with the result that the non-parole period would be rendered nugatory' [13] There might be a nice question as to whether it would now be necessary to consider the sentencing practices at the date of the offending, or as at the date of likely sentencing. With the commencement of the Probation and Parole Act 1983 (NSW), the absurdity which had previously existed was removed by providing for remissions to apply to the non-parole period. The result was, again in the words of the Court in Maclay, that 'all marched precisely in step in a proportionate sense': at 118G. However, the courts held that 'neither in relation to head sentences nor in relation to non-parole periods were sentencing judges to increase terms to negative the effect of remissions that would be applied to them': Maclay at 120D.

[14] Applying the law, rather than executive practice, a sentencing court, whether in 1981 or 1984, would have fixed a non-parole period on the assumption that the overall 'sentence period' would be reduced not only by one-third, on account of ordinary remissions, but also for 'earned' remissions and, in all probability, other remissions which might accrue from time to time, such as 'special strike remissions', designed to recognise the increased harshness of imprisonment during periods of industrial action by prison officers, which were not uncommon."

Accordingly, since in that case the sentencing judge's imposition of a non-parole period at two thirds of the overall term, which would not have accorded with sentencing practice at the time of the offending, error was demonstrated and the non-parole period should be fixed at one third to one half of the head sentence (see also RLS v R [2012] NSWCCA 236 at [86] - [93]). The present case, to my mind, is no different in substance. Here, of course, the offences were committed after the commencement of the Probation and Parole Act 1983, so that the fact that the non-parole periods would have been reduced by the application of remissions must be ignored.

Since, under the Probation and Parole Regulation 1984, remissions applied also to the non-parole period (as they did to the sentence) it was not appropriate for a sentencing judge to make allowance for the likely reduction in the head sentence by way of remissions, as this reduction would have been effected pursuant to the Regulation. Moreover, the judge was not able to take into account the possibility or likelihood of the reduction by increasing the non-parole period which was imposed: R v O'Brien [1984] 2 NSWLR 449; R v Paivinen [1985] HCA 39; (1985) 158 CLR 489. In 1986, however, s 21A was inserted into the Probation and Parole Act entitling the judge to order, in effect, that the remissions otherwise applicable, should not be applied in a particular case where to do so "was desirable by reason of the nature of the offence or the antecedent character of the [offender]", so that the full non-parole period imposed would be served. The effect of this provision was undermined by this Court's decisions in R v Rogers (1987) 8 NSWLR 236 and R v Evans (1987) 8 NSWLR 540, that it was inappropriate in any circumstances for a sentencing judge to exercise the power conferred by s 21A. In R v Watt [1988] HCA 58; (1988) 165 CLR 474 the High Court held that this approach amounted to an abdication of jurisdiction and the section should be applied according to its terms. In R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340 this Court held, considering the situation after remissions were removed by the Sentencing Act 1989, that there should not be a reduction in sentences in an attempt to adjust for that removal.

Spigelman CJ (with whom Grove and Sully JJ and Newman AJ agreed, Mason P contra) concluded, in R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; (2002) 130 A Crim R 481 at [31] that it was appropriate for a court to take into account -

"... the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender."

As Garling J (Basten JA (with additional comments) and R A Hulme J agreeing) said, in MPB v R [2013] NSWCCA 213 at [80] - [81] this principle has been regularly applied by this Court, though not without difficulty. His Honour went on to summarise the present position -

"[82] The difficulty arises because the sentencing court is being asked to reflect sentencing patterns or practices from earlier times, in a sentence being imposed at a much later time. In order so to do, the court must have a clear picture of what those earlier sentencing patterns and practices were. And, that picture must be as comprehensive as is possible.

[83] In some circumstances, it will be possible for the relevant sentencing pattern to be capable of being readily discerned. As cases such as Shore,Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540, PWB v R [2011] NSWCCA 84; 216 A Crim R 365, and Magnuson [[2013] NSWCCA 50] show, a comprehensive identification of similar cases, or else references to readily available statistical databases may assist in establishing earlier sentencing patterns. But, as experience shows, such sources need to be considered with some care because of inherent difficulties with them. For example, are the cited cases truly representative of those decided over the period, or else how is it that the statistical tables or analyses provided take into account, and identify, the wide variations in objective criminality and subjective circumstances. Statistical tables of sentencing outcomes are always to be treated with care.

[84] However, if a sentencing pattern is readily, and reliably discernable, then such material ought be put before the sentencing court for it to be taken into account. Ordinarily, it is not to be thought that a sentencing court will know, without assistance, what earlier sentencing patterns were. Much less is it to be ordinarily thought to be appropriate that material of this kind is not put before a sentencing judge and then is deployed on an appeal to this Court.

[85] Whether or not such a sentencing pattern can be reliably discerned, other historical matters relevant to sentencing practice can be identified, and ought be considered as part of the sentencing process. One such historical matter is the then existing statutory regimes under which a person would have been sentenced, including whether the legislation provided for, or else sentencing practices reflected, non-parole periods of a specific length or ratio to the overall sentence: see AJB v The Queen [2007] NSWCCA 51 169 A Crim R 32 at [36]-[38] per Howie J, Adams and Price JJ agreeing; MJL v R [2007] NSWCCA 261 at [27] per Hidden J, Campbell JA agreeing, at [43]-[48] per Smart AJ, Rosenstrauss v R [2012] NSWCCA 25 at [16] per Basten JA.

[86] However, in ascertaining any legislative provisions which may impact upon sentencing practices, the court does not engage in understanding the impact, if any, of executive practices on sentence. A ready example was the, now discontinued, executive practice of granting remissions to prisoners with respect to their head sentence: see AJB at [31]. Even if this practice was not truly an executive one, the operation of the remission system ought not be reflected in sentences which are imposed now: Rosenstrauss at [10]-[12] per Basten JA, R S Hulme and Schmidt JJ agreeing."

His Honour went on to refer to the use of judicial recollection as providing a basis for or a confirmation of the existence of a sentencing practice or pattern and the problems with this course. The position as to non-parole periods is quite different. It is accepted that sentences imposed prior to the Sentencing Act of 1989 involved non-parole periods usually in the order of one third to one half of the head sentence and a sentencing judge should take this into account in considering whether there are special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act justifying a reduction of the non-parole period which would otherwise apply.

In this case another feature is material. As I have already mentioned, it was submitted by the prosecutor to the primary judge that, were his Honour to hold (as it was submitted he should) that the two offences were committed within a relatively short time span, the applicable sentencing practice at the time of their commission would have been that the sentences would have been wholly concurrent. Even though there are substantial problems with a judge applying his or her recollection of past sentencing patterns, as it happens my own recollection coincides with the agreed position taken in the sentencing proceedings. In my view, that position should be accepted and applied by this Court. At the same time, the overall sentence must reflect the total criminality involved in both offences.

The applicant provided the sentencing judge with case summaries of indecent assault offences more or less similar to those here under consideration, which were committed in the 1970's and 1980's, a list of sentences passed between 1970 and 1985 for the offence of indecently assaulting children (many of which involved other sexual offences including intercourse), a list of sentences passed between 1992 and 2006 for offences committed through that period under s 61M(1) and (2) of the Crimes Act 1900, a table of indecent assault cases where non-custodial sentences had been passed between 1990 and 2005 and, lastly, a table of sentences under s 66C(2) (sexual intercourse with a child between 14 and 16 years, under authority) passed between 1986 and 2003. The possible utility of this material was significantly reduced by the lack of any attempt at analysis. It is not for the Court to construct the argument to which the tender of such material is directed. Nevertheless, the overall picture leaves me with the distinct impression that the sentences imposed at about the time of the offences were somewhat lower than would now be imposed, even after adjusting for the increased maximum penalties. Also produced were Judicial Commission statistics of sentences passed between 2006 and 2012, which do not distinguish cases on the basis of the applicable legislation. Since the legislation had significantly changed between that which applied to the offences under appeal and these dates, the statistics are not useful.

Conclusion

With respect, it seems to me that the sentencing judge overstated the weight that needed to be given to the considerations of personal and general deterrence and understated the significance of the applicant's good character. Furthermore, given that a non-parole period of between a third and a half of the head sentence would have applied at the date of the offences, his Honour's application of a ratio of 60 per cent, without an explanation for doing so, and where nothing in the facts argues for such a differentiation is also, with respect, an error.

To my mind, the sentences here are not manifestly excessive, either individually or overall. However, error having been demonstrated, this Court must consider for itself whether lesser sentences are warranted and, if so, to impose them in lieu of the sentences under appeal: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284.

Certainly the age of the complainant at the time of the offences is a significant component. For all that these offences were at the lower end of the scale of objective seriousness, they were inherently grave, involving a breach of trust and sexual interference with a young child whose personal integrity, it was the duty of the applicant to protect, and the abuse of which exposed her to long term adverse consequences. For these reasons, I consider that a sentence of imprisonment is appropriate.

So far as count 2 is concerned, the abuse of the applicant's authority increases the seriousness of the offence. The maximum sentence of 2 years imprisonment must apply to acts of indecency of much greater gravity, involving children of a much younger age than 11 or 12 years and direct intimate interference with their physical integrity, together with the use of force and threats. This offence was disgusting and humiliating but involved no threat or force, was over quickly and there was no interference with the complainant's person. With respect, this was not only not "the worse case by any means" but, having regard to the range of circumstances comprehended by the section, was well within the lower range of objective gravity. Such a finding would seem to be inconsistent with the starting point of ten months, bearing in mind, furthermore, that the scale of available sentences is not linear by any means.

In respect of the count 3 offence, this also involved no threat or force and was momentary. The extent of interference was slight, indeed the least capable of constituting the offence. The (somewhat uncertain) age of the complainant was approximately midway between the ages contemplated by the section. This offence also was very much at the lower end of objective seriousness for offences comprehended by the section.

I have already referred to the relevant subjective features. The applicant is now something over 64 years of age. It is appropriate to apply a non-parole period of between a third and a half of the overall head sentence, the special circumstances within the meaning of s 44(2) of the Sentencing (Criminal Procedure) Act 1999 comprising the sentencing practices at or about the time of the offences together with the applicant's age. Having regard to the consideration to which Howie J referred in Moon (quoted above), it seems to me that the appropriate ratio is in the order of 40 per cent. Following his sentence on 29 March 2012, the applicant was granted bail in the Supreme Court on 16 August 2012. He has thus spent 141 days in custody, which should be taken into account in the manner envisaged by ss 18 and 28A of the Criminal Appeal Act 1912.

Proposed orders

I would propose the following orders -

(1) Leave to appeal against conviction is granted.

(2) Appeal against conviction is dismissed.

(3) Leave to appeal against sentence is granted.

(4) The appeal is upheld, the sentences are quashed. In substitution therefore, the following sentences are imposed -

(i) on count 3, the appellant is sentenced to a non-parole period of nine months imprisonment and a balance of term of one year and three months;

(ii) on count 2, the appellant is sentenced to a fixed term of four months.

Disposal of the appeal

As the appellant was granted bail pending the outcome of this appeal, the sentences under appeal, in accordance with ss 18 and 28A of the Criminal Appeal Act 1912 must be directed to recommence on the date of this judgment, the appellant being required to serve the balance of the sentences (rounded down slightly). Accordingly, the Court makes the following orders -

(1) Leave to appeal against conviction is granted.

(2) The appeal against conviction is dismissed.

(3) Leave to appeal against the sentences imposed is granted.

(4) Appeal against the sentences is dismissed.

(5) On count 2 of the indictment the appellant's fixed term is directed to recommence on 14 November 2013 and expire on 23 December 2013.

(6) On count 3 of the indictment, the appellant's non-parole period is directed to recommence on 14 November 2013 and expire on 23 December 2014, with a balance of term of 12 months commencing on 24 December 2014 and expiring on 23 December 2015.

(7) The appellant is to be released on parole on 24 December 2014.

LATHAM J: I agree that the conviction appeal and the sentence appeal ought be dismissed for the reasons provided by Basten JA. I provide these additional reasons for joining with Basten JA with respect to the sentence appeal.

As Basten JA notes, the sole ground of appeal against the applicant's sentence was that "the sentence was manifestly excessive and outside the appropriate range". The assertion that the sentence is outside the "appropriate" range adds nothing to the submission that it was manifestly excessive. The written submissions relied upon by senior counsel do not distinguish between the sentences imposed for the individual offences and/or the aggregate sentence.

There is nothing in the written submissions that explicitly attributes error in the findings made by the sentencing judge. To the extent that Adams J has inferred from the applicant's written submissions a number of errors, I would draw attention to the following matters.

The height of the submission in relation to the accumulation of the sentence for count 3 on the sentence for count 2 to the extent of 3 months is :-

any penalty on count 2 should have been properly absorbed within the penalty on count 3. They occurred when the complainant was aged approximately 12 years and there is no need, in fairness, to apply the principle of totality. The totality approach is appropriate where there are a large number of offences and where the offences are not closely related in time and nature and where there is more than one victim.

The determination to partially accumulate sentences is an exercise of the sentencing discretion. The judge was required to impose an appropriate sentence for each offence, having regard to the relevant maximum penalty, and then consider, in the exercise of his discretion, how best to structure the sentences in order to arrive at an aggregate sentence which appropriately reflected the totality of the applicant's criminality : Pearce v The Queen [1998] HCA 57 ; 194 CLR 610 at [45]. It is not a question of fairness to the applicant. It is not the law that the principle of totality is only "appropriate" in the circumstances described by the applicant. The applicant does not (and could not correctly) submit that it was not open to the sentencing judge to partially accumulate the sentences. Unless the applicant can demonstrate that the discretion to do so miscarried in the House v The King sense, there is no error. Of course, that is a distinct consideration from the question whether the aggregate sentence is manifestly excessive.

The applicant's submissions on the objective gravity of each offence simply state that counts 2 and 3 are "at the lower end of the scale of objective seriousness". The judge's finding was that the submission that the applicant's conduct (on each occasion) fell at the lower end of objective seriousness was "very much reduced having regard to the age of the complainant. It was not the worse case by any means but was very serious misconduct of a sexual kind against a child." (I agree with Adams J that this Court should approach the appeal against sentence on the basis that the complainant was about 12 years of age at the time of each offence.)

Clearly, his Honour assessed the objective gravity of each offence as above the lower end of the scale, whilst accepting that the conduct was spontaneous or impulsive. The applicant does not submit that the judge took into account any irrelevant consideration or failed to take into account a relevant consideration. The assessment of the objective gravity of an offence is part of the process of instinctive synthesis. Moreover, it is not necessary to make a detailed or specific assessment of where an offence falls on a notional scale where the offence does not carry a standard non parole period : Khoury v R [2011] NSWCCA 118 at [71] to [74] per Simpson J (Davies J and Grove AJ agreeing) ; Zreika v R [2012] NSWCCA 44 at [46] per Johnson J (McClellan CJ at CL and Rothman J agreeing). The applicant has not demonstrated any error and has not submitted that the judge's finding in general terms was not open to him.

The applicant's submissions with respect to specific and general deterrence consist of general statements of principle that do not advance any error on the part of the judge. The delay between the commission of the offences and sentence, the applicant's prospects of rehabilitation and the low risk of re-offending were all addressed by the judge in his remarks on sentence. The applicant's reliance upon delay fails to take account of earlier efforts by the complainant to report the offences.

The applicant's reliance upon Simpson J's comment in R v Jenkins (1999) NSWCCA 110 at [38] that "his Honour rightly considered general deterrence to be an important factor in the sentencing decision but, in my view, he allowed that single factor to override, to an impermissible degree, the applicant's favourable subjective circumstances, and particularly the finding that he was unlikely to re-offend", is also misplaced. That statement explains and supports a finding by her Honour that the sentence under consideration was manifestly excessive, a proposition that was rejected by every other member of that bench (Spigelman CJ, Wood CJ at CL, Newman and Hulme JJ). In any event, Simpson J was not laying down a statement of principle. Her Honour was merely dealing with the circumstances of that particular case.

In the instant case, the judge's observation that "in cases of sexual misconduct against children, [particularly where the offender occupies a position of trust] any sentence imposed must embrace a very substantial element of general deterrence" is entirely orthodox. There is nothing in that statement that demonstrates the attribution of excessive weight to that factor.

As for the assertion that the sentences and non parole period imposed were higher than those imposed at the time of offending, I agree with Basten JA that perceived patterns of sentencing in 1985 and 1986 play no part in this application.

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Decision last updated: 14 November 2013

Medium Neutral Citation:	VERSI, Peter v R [2013] NSWCCA 206
Hearing dates:	16 August 2013
Decision date:	14 November 2013
Before:	Basten JA at [1]; Adams J at [37]; Latham J at [201]
Decision:	(1) Leave to appeal against conviction is granted. (2) The appeal against conviction is dismissed. (3) Leave to appeal against the sentences imposed is granted. (4) Appeal against the sentences is dismissed. (5) On count 2 of the indictment the appellant's fixed term is directed to recommence on 14 November 2013 and expire on 23 December 2013. (6) On count 3 of the indictment, the appellant's non-parole period is directed to recommence on 14 November 2013 and expire on 23 December 2014, with a balance of term of 12 months commencing on 24 December 2014 and expiring on 23 December 2015. (7) The appellant is to be released on parole on 24 December 2014.
Catchwords:	CRIMINAL LAW - appeal against conviction - historical child sexual assault - verdict not unreasonable - errors in trial transcript - corrected by substantial agreement - appellate court not required to listen to transcript EVIDENCE - tendency and coincidence evidence - confusing directions - coincidental "events" - appropriate coincidental reasoning CRIMINAL LAW - appeal against sentence - manifestly excessive - whether sentence practices at the time of the offences should be applied
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Probation and Parole Act 1983 Probation and Parole Regulation 1984 Sentencing Act 1989
Cases Cited:	AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 HML v The Queen [2008] HCA 16; 235 CLR 334 Khoury v R [2011] NSWCCA 118 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MPB v R [2013] NSWCCA 213 Mraz v The Queen (1955) 93 CLR 493 Pearce v The Queen [1998] HCA 57 ; 194 CLR 610 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 PWB v R [2011] NSWCCA 84 R v Evans (1987) 8 NSWLR 540 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Hermann (1988) 37 A Crim R 440 R v Jenkins (1999) NSWCCA 110 R v Kennedy [2000] NSWCCA 527 R v Kirkman (1987) 44 SASR 591 R v Maclay (1990) 19 NSWLR 112 R v MJR [2002] NSWCCA 129; (2002) 130 A Crim R 481; (2002) 54 NSWLR 368 R v Morley [1985] WAR 65 R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 R v O'Brien [1984] 2 NSWLR 449 R v Paivinen [1985] HCA 39; (1985) 158 CLR 489 R v Rogers (1987) 8 NSWLR 236 R v Storey (1978) 140 CLR 364 R v Watt [1988] HCA 58; (1988) 165 CLR 474 RLS v R [2012] NSWCCA 236 Rosenstrauss v R [2012] NSWCCA 25 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Weiss v R [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen (1988) 164 CLR 365
Category:	Principal judgment
Parties:	Peter Versi (Applicant) Regina (Crown)
Representation:	Counsel: A Bellanto QC (Applicant) P Ingram SC (Crown) Solicitors: Nyman Gibson Stewart (Applicant) Director of Public Prosecutions (Crown)
File Number(s):	2009/201959
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-03-29 00:00:00 Before: Taylor DCJ File Number(s): 2009/201959