Ferguson v R

1. [1]

   DAVIES J: The applicant stood trial before Judge T Smith SC and a jury on the following offences:

2. [2]

   The jury found the applicant guilty on counts 4 and 7, not guilty on counts 1 and 8, and they were unable to agree on counts 2, 3, 5 and 6.

3. [3]

   On 5 August 2022 Judge T Smith sentenced the applicant to an aggregate sentence of imprisonment for 2 years 4 months commencing 5 August 2022 and expiring 4 December 2024 with a non-parole period of 1 year 3 months expiring 4 November 2023. The indicative sentences were for count 4, 2 years 2 months with a non-parole period of 1 year 1 month, and for count 7, 8 months’ imprisonment.

4. [4]

   The applicant now seeks an extension of time to appeal and seeks leave to appeal against both his conviction and the sentence imposed on the following grounds:

The offending

1. [5]

   All of the offending took place as part of a single episode on 22 October 2020. The applicant was the stepfather of the complainant’s best friend, NSO. The complainant, AT, was aged 18 years at the time of the offending. He was diagnosed with autism spectrum disorder and had a mild intellectual disability.

2. [6]

   The offences occurred when the complainant was sleeping over at the house where the applicant lived with his partner, CS, and his stepson, NSO. Earlier that day he had mowed the lawn at the applicant’s house using his father’s lawn mower.

3. [7]

   At about 9:30pm, the applicant’s partner and NSO went to bed, leaving the applicant and complainant in the entertainment room watching horror movies. They were each sitting in a chair about a metre away from each other.

4. [8]

   The complainant looked over towards the applicant at one stage and said that he saw the applicant “playing with himself…like move his hand down his pants, like under his, under his pants…under his underwear”. The complainant agreed that it was “really dark in the room” but said he could see from the back light on his phone. When it was suggested that he had assumed the applicant was masturbating, he said “No”. When it was suggested, “because all you saw was movement wasn’t it?”, he responded, “Well, what else would he be doing?”

5. [9]

   There was evidence from the applicant and from the applicant’s partner that the applicant suffered from a functioning neurological disorder which included tremors.

6. [10]

   The jury acquitted the applicant of this count.

7. [11]

   The complainant alleged that the applicant said to him, “Have you had sex before?”, and the complainant said “No”. The applicant said, “Do you want to try it?”, and the complainant said “Not really”.

8. [12]

   The complainant then alleged that the applicant stood up and told the complainant to stand up. The applicant pulled down the complainant’s pants and underpants to below his knees while the complainant was trying to pull them back up. He said he tried to tell the applicant to stop but the applicant said, “Shh, it will be all right – just stand there”. The complainant said that the applicant started playing with him and touching him inappropriately.

9. [13]

   The jury were unable to agree on a verdict for this count.

10. [14]

    The complainant said that the applicant then started sucking his penis three or four times while the applicant was kneeling down. He said that he tried to pull away, but the applicant put his hand on the complainant’s buttocks and pulled the complainant towards him. He said that the applicant said, “Come on, come in my mouth”, to which the complainant responded that he didn’t want to.

11. [15]

    The jury were unable to agree on a verdict for this count.

12. [16]

    The complainant went to the toilet, partly to get away from the applicant. The applicant followed him inside the bathroom and asked him, “Do you want to be manscaped?” The complainant said that he did not and the applicant said, “All right just stand there, I’ll shave it”.

13. [17]

    The applicant then used cordless hair trimmers to shave the complainant’s pubic hair around his penis. When the applicant was interviewed by the police he agreed that he had shaved the hair around the complainant’s penis and whilst doing so had brushed the complainant’s penis just lightly, which caused the complainant to get immediately erect.

14. [18]

    The applicant was found guilty of this count.

15. [19]

    After the applicant had shaved the complainant’s pubic hair, he told the complainant to get into the shower. The applicant then retrieved baby oil and started masturbating the complainant with the baby oil.

16. [20]

    The jury were unable to agree on a verdict for this count.

17. [21]

    The complainant said that the applicant then sucked his penis about five times. While he was doing it, the applicant said, “Shh, it will be all right”. The complainant told the applicant that it was a bit weird but the applicant said it wasn’t weird. The complainant said he felt very uncomfortable and the applicant replied, “Don’t be uncomfortable, it’s all good”.

18. [22]

    The jury were unable to agree on a verdict for this count.

19. [23]

    After the complainant got dressed he told the applicant he was going to bed. The applicant suggested the complainant stay up and suggested watching pornography. They apparently watched an X-rated movie on a laptop back in the entertainment room for 20 minutes. The applicant suggested that they “jerked each other off”, but the complainant said, “No”. The complainant alleged that the applicant then pulled down his own pants and started masturbating himself.

20. [24]

    The jury returned a guilty verdict of this count.

21. [25]

    After the applicant masturbated, the complainant said that the applicant masturbated him (the complainant). When the complainant went to bed the applicant told him a few times not to tell anyone.

22. [26]

    The jury returned a verdict of not guilty for this count.

Complaint evidence

1. [27]

   At 1:06am the complainant sent a text message to his mother which read, “I should have NOT stayed at [the applicant’s] house”, followed by a message at 1:07am which read, “I can’t sleep”.

2. [28]

   At 5:38am the complainant sent a message to the applicant which read, “Morning Benj, I’ll be back, I’m just dropping the lawnmower off at my dad’s, I thought I’ll do it before he went to work”. The complainant then pushed the mower back to his father’s house and returned to the applicant’s house.

3. [29]

   The complainant remained at the applicant’s house. At 9:30am the applicant’s partner CS woke up and saw the complainant in the lounge room. She went outside to have a cigarette, and the complainant went outside also.

4. [30]

   CS gave evidence that the complainant told her that the applicant “had sucked him off and that [the applicant] had manscaped him from memory and taught him how to or showed him how to masturbate or something along those lines”.

5. [31]

   Later that evening, the complainant’s father KT picked him up and took him to Raymond Terrace to have dinner. The complainant told his father that the applicant “had touched him during the night and had sucked him off and done other things to him…manscaped or shaved or something”.

6. [32]

   The complainant and KT then went to Raymond Terrace Police Station and spoke to a police officer, Detective Senior Constable Matthew Delforce, but did not make a formal statement.

7. [33]

   Detective Delforce made notes in his police notebook which relevantly said:

8. [34]

   Detective Delforce made an entry on the COPS system which relevantly said:

9. [35]

   After the initial contact with Detective Delforce the complainant went back to the caravan park where he lived. He sent a text to his mother saying he needed to talk to her. She rang him, and he told her:

10. [36]

    At the complainant’s request, his mother then went to the police station and spoke with Detective Delforce. She then went to the caravan park, spoke to the complainant and asked him what had happened. She said:

11. [37]

    Later that evening, the complainant returned to the police station with his mother and took part in a recorded interview. He relevantly described what happened in these terms:

12. [38]

    The complainant’s father gave evidence that he met the complainant after he (the father) finished his work and they went to a noodle place to have dinner. His evidence about what the complainant told him was this:

13. [39]

    The complainant’s father said that he wrote some notes down (the inference being about what the complainant told him) but he had searched the house and been unable to find them. He confirmed in cross-examination that the evidence he gave in chief consisted of the main details he could remember and were the most important things that AT told him. His evidence was not otherwise challenged.

14. [40]

    Evidence was given by Detective Delforce, the Officer in Charge, that the applicant had never previously been charged with a sexual offence of any kind. However, in 2015 the applicant had been sentenced to a good behaviour bond for possessing an unauthorised firearm and to monetary penalties for possessing ammunition and not keeping a firearm safe. That information obviously was not provided to the jury.

15. [41]

    The applicant’s partner, CS, gave evidence about the applicant in answer to a question from the applicant’s counsel, as follows:

16. [42]

    The trial judge, in giving directions about good character, said this:

17. [43]

    The applicant submitted that evidence of good character was notoriously important in cases of sexual assault which turn upon word on word factual disputes between the complainant and the accused, citing Xu v R [2019] NSWCCA 178 at [37].

18. [44]

    The applicant submitted that the draft direction for good character contained an additional sentence which was not referred to by the trial judge as follows:

19. [45]

    The applicant submitted that where the Crown prosecutor emphasised to the jury in his address the issue of the applicant’s truthfulness and reliability, the additional direction ought to have been given by the trial judge, and there was no forensic reason not to seek such a direction.

20. [46]

    Following the conclusion of counsel’s addresses her Honour discussed proposed directions with counsel. Counsel for the applicant said he proposed that a good character direction should be given although he had not turned his mind to the precise wording of it. The trial judge raised with the Crown the relevance of CS’s evidence about the applicant’s honesty and suggested it could only be relevant to good character. Her Honour suggested that the Crown think about that evidence overnight.

21. [47]

    On the following morning, this exchange took place between her Honour and counsel in relation to a good character direction:

22. [48]

    The applicant accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) would apply, but submitted that the absence of the identified portion of the direction gave rise to miscarriage of justice by reason of what was said in Xu.

23. [49]

    At the conclusion of the summing up, the trial judge asked counsel if there were any issues they wished to raise, and both counsel said that they did not have any issues.

24. [50]

    In my opinion, no miscarriage of justice is demonstrated by the applicant for three reasons. First, there is no obligation to give any particular direction with respect to character evidence: Simic v The Queen (1980) 133 CLR 319; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32. In such circumstances, Basten JA (with whom RA Hulme and N Adams JJ agreed) said in FB v R [2020] NSWCCA 137 at [36] that there can be very little opportunity to allege a miscarriage of justice where some direction was given.

25. [51]

    The direction in the present case had to be carefully crafted because the applicant did not have good character at law in all respects because of his prior convictions. Where a person has convictions, although not in respect of the matters charged, a danger can arise if care is not taken with the way any character direction is given to avoid speculation on the part of the jury about what convictions an applicant did have: Gallant v Regina [2006] NSWCCA 339 at [33].

26. [52]

    Secondly, the trial judge’s direction was given in precisely the terms her Honour had read to counsel in the absence of the jury, and the applicant’s counsel went so far as to say “that’s how I anticipated it would be directed”. That is cogent evidence in the atmosphere of the trial that the applicant’s counsel saw no injustice in what was done: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]; Latu v R [2023] NSWCCA 19 at [76]-[77]; Marco v R [2023] NSWCCA 307 at [63]; Kumar v R [2023] NSWCCA 156 at [91].

27. [53]

    Thirdly, part of the direction told the jury that if they accepted CS’s evidence of the applicant’s honesty, they could use that when considering both what he said in his ERISP and his evidence. Given that he did not have good character at law in all respects, that direction was as close to what the applicant is now asserting should have been given as it could be. It is significant in that regard that CS’s evidence about the applicant’s honesty was not challenged. The difficulty arising from the applicant’s prior criminal record provides an explanation for the forensic decision taken by trial counsel to agree with what the trial judge proposed.

28. [54]

    Xu was a very different case from the present. The applicant in that case had no prior convictions of any sort, and the jury was never made aware of the applicant’s prior good character in any way by evidence, counsel’s address or direction. This Court found at [35] that there was no obvious or apparent legitimate forensic purpose not to adduce evidence of good character, and at [38] that even the slightest good character evidence could have been critical to the outcome.

29. [55]

    In the present case, there was good character evidence, there was a legitimate forensic explanation for the full direction not being given, and the matter had been discussed and agreed beforehand by the trial judge and the applicant’s trial counsel.

30. [56]

    Leave should be refused to rely on this ground by reason of r 4.15.

31. [57]

    It is convenient, as the parties did, to deal with this ground next.

32. [58]

    The events of the night, as alleged by the complainant, can be divided into three stages. The first stage consisted of counts 1, 2 and 3 which were alleged to have taken place in the entertainment room where the complainant and the applicant were watching television. The jury found the applicant not guilty on count 1 (self-masturbation) but could not agree on count 2 (sexual touching of the complainant) and count 3 (applicant fellating the complainant).

33. [59]

    The second stage took place in or near the bathroom and consisted of count 4 (manscaping) for which a guilty verdict was returned, count 5 (applicant masturbating the complainant) and count 6 (applicant fellating the complainant) on both of which counts the jury could not agree.

34. [60]

    The third stage, and the stage with the most significance for ground 3, took place again in the entertainment room where the jury found the applicant guilty of count 7 (masturbating himself) but not guilty of count 8 (masturbating the complainant).

35. [61]

    In Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35 the joint judgment of Gaudron, Gummow and Kirby JJ said at 366:

36. [62]

    In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Spigelman CJ said at [34]:

37. [63]

    In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 Simpson J (McClellan CJ at CL and Latham J agreeing) said at [130] that the court must inquire whether there exists any rational explanation for the acquittals, not the convictions, and went on to say:

38. [64]

    The applicant accepted that there was a rational explanation for the acquittal on count 1. The applicant may have been acquitted either because of the evidence of the applicant’s functional neurological disorder, and the description given by the applicant’s partner of how that manifested itself, and/or by reason of the fact that the count was said to be a sexual act carried out “towards” the complainant. In that regard, the evidence was that the room was very dark with the lights off and AT could not see much. All he could see was some movement but not the applicant’s hand. The element of the offence being conducted towards the complainant might easily have explained the acquittal.

39. [65]

    The ground of appeal seeks to rely not only on the not guilty verdict on count 8 but also the absence of verdicts in relation to counts 2, 3, 5 and 6. The issue of whether regard can be had to the failure to reach a verdict on one or more counts is still a matter of some contention in the authorities. For the reasons which follow, I do not consider that regard should be had to the failure to reach verdicts in the present case to reach a conclusion on this ground of appeal.

40. [66]

    I would adopt the careful analysis of the authorities by Bathurst CJ (with whom Bell P (as his Honour then was) agreed) in Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 at [235]-[248]. I agree with his Honour’s conclusion that it is only in very limited circumstances that the principles dealing with inconsistent verdicts can apply where the inconsistency is between a failure to reach a verdict and a verdict of guilty.

41. [67]

    The position in the present matter does not fall within the limited class of cases where a conviction on the one hand and a failure to agree is an affront to logic and common sense. In Crofts v R [2018] VSCA 197 at [136] Weinberg JA identified different defences and different evidence pertaining to the offences being compared as providing a basis for concluding that the different outcomes could stand together on a rational basis. In the present case, the counts where no verdicts were reached concerned different evidence from the evidence relating to count 8. Those offences constituted stages 1 and 2 of the evening; two, possibly three, of them involved evidence about the applicant’s ability to kneel, and one of them involved the issue of whether there was baby oil in the house.

42. [68]

    The question of inconsistency should be dealt with by an examination of counts 7 and 8 in the circumstances where the applicant accepts a rational explanation for the not guilty verdict on count 1.

43. [69]

    The first time that AT gave a version of counts 7 and 8 was in his statement to the police of 13 November 2021. The evidence at the trial concerning those counts emerged in this way in the complainant’s evidence in chief:

44. [70]

    A little later in his evidence in chief the complainant was referred, pursuant to leave having been granted under s 32 of the Evidence Act 1995 (NSW) to a statement he had made to the police on 13 November 2021. He then gave this evidence:

45. [71]

    Given that counts 7 and 8 occurred reasonably contemporaneously and in the third stage of the evening, as I have categorised it, the central question for determination is whether there is a reasonable explanation for the acquittal on count 8.

46. [72]

    In my opinion, two matters provide a rational explanation why the jury returned a not guilty verdict for count 8 but not for counts 4 and 7. First, the complainant gave no evidence about matters tending to prove count 8 until his memory had been refreshed following the application under s 32 of the Evidence Act by the Crown. That was a matter of increased significance where, in the first place, the complainant had not said anything about sexual acts taking place in the entertainment room following what was said to have occurred in the bathroom until he gave his statement to the police on 13 November 2021.

47. [73]

    Prior to refreshing his memory he only volunteered that, on returning to the entertainment room, the applicant suggested “jerking me off”, but when the complainant said he refused that offer, the applicant “pulled his pants down and started jerking his dick”. He was asked “was there anything else that happened in that room?” and the complainant said, “Not that I can recall at the moment”.

48. [74]

    The second matter supporting the jury’s not guilty verdict for count 8 was that, when the complainant was cross-examined about the evidence given after he refreshed his memory, that he asked the applicant to stop on three or four occasions, he first said that he did not say it louder because he did not want to wake up his friend NSO and CS. However, the following day, while being cross-examined, the complainant gave evidence for the first time that he was scared when the applicant was masturbating him that the applicant was going to hit him with a machete that he had in the room. This was the first time there had been any mention by the complainant of a machete.

49. [75]

    The applicant’s evidence about the machete was unsatisfactory for a number of reasons. First, as noted, there had been no prior reference to it in any complaint, statement, interview or evidence in chief by the complainant. Secondly, when the cross-examiner asked, “He had a machete next to his chair, did he?”, the complainant replied, “Yes, he must have hid it because the police coming…knew the police were coming.” That unsolicited statement might have suggested to the jury that the complainant was endeavouring to make his evidence about the machete more credible when no machete had been found.

50. [76]

    Thirdly, the complainant then gave this evidence:

51. [77]

    Fourthly, when further cross-examined about the machete, the complainant asserted that he had told Detective Delforce about the machete on the night of his interview although not in the interview. Detective Delforce gave evidence that at no stage did the complainant tell him about a machete.

52. [78]

    Fifthly, CS gave evidence that there was no machete in the house. Further, Detective Jeffrey Castle gave evidence that when he searched the applicant’s house he did not see any machete. That was in circumstances where the applicant was not on notice that complaint had been made to the police or that the police were coming to his house. It must be accepted, however, that the search was not a thorough search pursuant to a warrant, and Detective Castle said he would have noticed a machete “if it was apparent”.

53. [79]

    In all of those circumstances the jury could well have had a reasonable doubt concerning the evidence about count 8.

54. [80]

    I would reject this ground of appeal.

55. [81]

    The approach an appeal court must take to consideration of a ground that the verdict was unreasonable is well established. To make clear the approach that this court takes to the matter it is necessary only to set out three brief passages from decisions of the High Court.

56. [82]

    In Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 the High Court said at [7]-[8]:

57. [83]

    In M v The Queen (1994) 181 CLR 487; [1994] HCA 63, the judgment of Mason CJ, Deane, Dawson and Toohey JJ said at 494-495:

58. [84]

    In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, the High Court said at [39]:

59. [85]

    The applicant submitted that the totality of the following evidentiary circumstances would lead the court to be satisfied that the verdict was unreasonable and was unsupported by the evidence:

60. [86]

    The present consideration of unreasonableness involves two counts only being count 4 (the manscaping) and count 7 (the applicant masturbating himself in the entertainment room whilst watching XHamster). In relation to count 4 the applicant admitted to having carried out the physical act involved in this offence. Indeed, as Button J observed during the hearing of the appeal, count 4 was different from the other counts by reason of the fact that the applicant admitted to carrying out the act of manscaping the complainant.

61. [87]

    Although on appeal the applicant’s counsel sought to distinguish the issue of whether the touching was sexual from his acceptance that the physical act occurred, trial counsel said in his closing address:

62. [88]

    The trial judge said in her summing up:

63. [89]

    Bearing in mind what was said in Pell at [39], and the “real issue” on count 4, it can be taken that the jury did not accept the applicant’s account of how the manscaping came about and did accept the complainant’s evidence about it. That meant that the jury accepted that it was done without the complainant’s consent and it could be characterised as sexual touching.

64. [90]

    The only remaining question about count 4, and for count 7, is whether, because of the matters raised generally about the complainant’s evidence (at [85] above), it was not open to the jury to have accepted the complainant’s evidence about these counts.

65. [91]

    The matters raised in points I, II, III and VII together make the point that the accounts given by the complainant disclosed increasing detail over, ultimately, a period of some 13 months. In Lee v R [2023] NSWCCA 203 Kirk JA (Button and Lonergan JJ agreeing) said at [53]:

66. [92]

    It is of no significance that more detail was provided in the JIRT interview than had been told to the police on first contact or to the complainant’s father and mother. The interview was the first opportunity for the full detail to be disclosed by means of the questions asked. The failure to raise the events constituting counts 7 and 8 until much later is of some significance. Nevertheless, courts now well understand that victims of sexual assault all react differently in terms of when complaint is made, to whom it is made, the detail of the complaint, and how they behave subsequent to the assault. Section 293A of the Criminal Procedure Act 1986 (NSW) is testimony to that. The trial judge gave to the jury the direction that this section enables. In those circumstances, the delay in complaint about count 7 cannot, of itself, mean that the complaint is unreliable, nor that it was not open to the jury to accept the complainant’s evidence about it.

67. [93]

    Similar considerations arise in relation to item X where the complainant returned to the applicant’s house and remained there with the applicant present for some time. Again, it needs to be said that victims of sexual assault do not always react in the same way to what has occurred. Here, the complainant provided an explanation, that he did not want NSO to know something had happened with the applicant, and he also thought that he had let the applicant down by disclosing it to CS. This issue was put to the jury by the applicant’s trial counsel as the first aspect of the complainant’s evidence that was said to be implausible.

68. [94]

    The matter raised in VIII, of whether the applicant pulled the complainant’s pants down and fellated him or only tried to pull his pants down with the complainant successfully resisting, was one of the matters submitted by the applicant’s trial counsel to the jury to be a “major inconsistency”. The inconsistency depends entirely on the correctness of Detective Delforce’s note when the complainant first gave a brief account of what was said to have happened. The applicant relies on Detective Delforce’s evidence that if the complainant had told him the applicant pulled down his pants and fellated him he would have made a note of it.

69. [95]

    In my opinion, even it is accepted that the complainant first told the detective that the applicant only tried to pull his pants down, that inconsistency was a matter for the jury’s determination, having been given the s 293A direction, and having seen and heard the whole of the complainant’s evidence.

70. [96]

    Items IV, V and IX concerned the complainant’s assertion that the applicant had a machete, and it was that machete which made the complainant scared of the applicant. As discussed in relation to ground 3, the contrary evidence about the existence of a machete was likely at least a partial explanation for the applicant’s acquittal on count 8. The fact that the jury may have had a reasonable doubt about the complainant’s evidence of the machete does not necessarily mean that they did not accept the complainant’s evidence about other matters. Indeed, the fact that they acquitted the applicant on counts 1 and 8 where there was a reason in each case to do so, but convicted on grounds 4 and 7 where it was reasonably open to do so tends to suggest that the jury were carefully examining each of the counts separately.

71. [97]

    The contradictory evidence about the machete was a matter for consideration by the jury when assessing the evidence about counts 4 and 7 as were items XII and XIII (concerning the amount of Jack Daniels which the complainant remembered the applicant drinking on the afternoon of the day the alleged offences occurred and the evidence about the applicant leaving the house on his motorcycle to buy another bottle); item XIV (concerning whether there was a stool in the entertainment room on which the applicant was watching XHamster on the laptop after the complainant and the applicant returned to the entertainment room from the bathroom); item XV (concerning the complainant’s statement that he always texted respectfully whereas messages he had sent whilst at high school were said to be abusive).

72. [98]

    There was contradictory evidence about the matter raised in item XI concerning the applicant’s ability to kneel and to stand up from a kneeling position. The complainant gave evidence that the applicant knelt in front of him whereas the applicant gave evidence that the applicant could not stand up from a kneeling position by himself. CS’s evidence was that “on occasions” she had to help the applicant up. However, this evidence was not directly relevant to counts 4 or 8 although it may be part of the reason the jury were unable to agree on counts 3 and 6.

73. [99]

    The applicant did not make clear how items XVI and XVII were matters that contributed to an unreasonable verdict. The complainant’s desire to live permanently at the applicant’s house might be thought to make it less likely that he would make up a story of what the applicant had done to him and then to report the matter to the police. Not only would that put paid to any likelihood that he could live at the applicant’s house, it was also likely, as it ultimately did, to damage or ruin his friendship with NSO who was, according to what the applicant said the complainant told him, the complainant’s only friend.

74. [100]

    When considering separately or in combination the other matters raised by the applicant to assert that the verdict on counts 4 and 7 were unreasonable, a few things should be noted. First, the starting point, according to Pell, is the assumption that the complainant is believed by the jury. The question is then, by reason of discrepancies, inconsistencies or other evidence there ought to be a reasonable doubt. Most of trial counsel’s closing address to the jury concerned what were said to be the inconsistencies in, and the implausibility of, the complainant’s evidence. The resultant verdicts of two guilty, two not guilty, and a failure to reach a verdict on four counts might be thought to show that the jury gave careful and proper regard to what had been put to them.

75. [101]

    Secondly, simply because there is contradictory evidence on a number of matters does not mean that a verdict is unreasonable. Lee was a case involving sexual assault where, as is frequently the case, contradictory accounts were given by the complainant and the accused. It was submitted that the applicant’s account provided a reasonable narrative of what occurred, and that account was not contradicted by corroborated evidence. In those circumstances, it was submitted that the jury must have had a reasonable doubt.

76. [102]

    The Court said of that submission at [28]:

77. [103]

    Further, juries are invariably instructed (and this jury was) that they may accept part of a witness’s evidence and reject other parts, and that if they do not accept part of a witness’s evidence that does not mean that they must reject the remainder of that witness’s evidence. For reasons given when discussing ground 3, it is likely that the jury rejected the complainant’s evidence about the machete. That does not lead inexorably to the conclusion that they had to reject the remainder of the complainant’s evidence because his credibility was so affected.

78. [104]

    Thirdly, the jury had a very considerable advantage over an appellate court because of the complainant’s autism and intellectual disability. What the jury observed of the complainant when giving his evidence would have been of greater significance than with a person unaffected by those disabilities, something which would not be clear from a transcript.

79. [105]

    Fourthly and significantly for count 4, from the time of the first complaint to CS, and then to his father, his mother and the police, all on the following day, the complainant asserted that the applicant had manscaped him. If the complainant had asked the applicant to manscape him (as the applicant contended), it is highly unlikely that the complainant would the very next morning have made a false complaint about how it occurred to CS, particularly bearing in mind his friendship with NSO and his desire to live at the applicant’s house.

80. [106]

    Finally, complaint was made at probably the earliest time it could have been made, and that conclusion is strengthened if the jury considered that that text message to the complainant’s mother at 1.06am is regarded as demonstrating that something had happened which had upset the complainant. What the complainant told CS the following morning more generally about what occurred, was very largely consistent with what he told his father, his mother and the police during the course of that day. It may be accepted, as juries are told, that saying the same thing a number of times does not make it more likely to be true, but the jury had evidence of a largely similar complaint made to a number of persons. That the complainant told CS the next morning and the fact that he went to the police that evening, is also significant in the light of his desire to live at the applicant’s house, and his friendship with NSO, a point made by the Crown his closing address. The fact that complaint was made at all, let alone at such an early time, makes the complainant's evidence of what the applicant is alleged to have done more credible.

81. [107]

    Having examined all of the evidence at the trial and having had particular regard to the matters raised by the applicant (at [85] above), the inconsistencies and discrepancies identified do not cause me to doubt the guilt of the applicant in respect of counts 4 and 7. It was open to the jury to convict the applicant on counts 4 and 7 notwithstanding those matters.

82. [108]

    In relation to the conviction appeal, I propose the following orders:

    1. (1)

       Extend time for the filing of both the conviction appeal and the sentence appeal to 28 November 2023.

    2. (2)

       Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 1.

    3. (3)

       Grant leave to appeal in respect of grounds 2 and 3.

    4. (4)

       Dismiss the appeal.

83. [109]

    In relation to the application for leave to appeal against sentence (grounds 4, 5 and 6), I have had the advantage of reading in draft the judgment of Sweeney J. I agree with her Honour’s reasons and the orders her Honour proposes.

84. [110]

    BUTTON J: In relation to the conviction appeal, I agree with Davies J. On my own assessment of the evidence, it was open to the jury to return verdicts of guilty on the two counts in question.

85. [111]

    I have had the benefit of reading the judgment of Sweeney J regarding the application for leave to appeal against sentence on a number of grounds. I am grateful for the detailed discussion provided by her Honour of the objective and subjective features, of the findings in the remarks on sentence, and of the written and oral submissions made by the parties in this Court.

86. [112]

    Regarding ground 5, I respectfully agree and have nothing to add to her Honour’s reasons.

87. [113]

    I respectfully disagree, however, regarding the disposition of ground 4, pertaining to count 7.

88. [114]

    I consider that the learned sentencing judge was well entitled to accept and act upon the concession made by counsel, who was, on my reading of the transcript, well experienced in criminal law. I also consider that the concession was open to be made, and not plainly ill-founded, including with the benefit of hindsight.

89. [115]

    For those reasons, I would not uphold ground 4, with the result that I would not move to re-sentence on that basis and interfere with this sentence, long since served.

90. [116]

    Finally, for completeness, I should add that, with regard to ground 6, I am not satisfied that the aggregate sentence was patently beyond the discretion reposed in the sentencing judge, with the result that I would also reject that ground.

91. [117]

    Because I consider that no ground should succeed, the orders that I would propose are:

92. [118]

    SWEENEY J: I have had the benefit of reading in draft the judgment of Davies J and agree with his Honour's disposition of grounds 1, 2 and 3.

93. [119]

    As to ground 1, the learned trial judge could have told the jury that the Crown had not challenged the applicant's partner's evidence about his honesty, whilst also telling them it was a matter for their decision as to whether or not they accepted that evidence. Secondly, the fact of the applicant’s having no prior convictions for sexual offending was relevant for the jury in considering the applicant’s account in his interview with police and his evidence, as his account was effectively denials of the offending alleged. However, trial counsel did accede to the direction proposed by the trial judge, her Honour gave the direction in accordance with the proposed terms, and trial counsel sought no further direction about the applicant's good character. I am not of the view that a miscarriage of justice occurred because of the terms in which the character direction was given.

94. [120]

    As to ground 2, I have conducted my own independent review of the evidence in the trial. There were aspects of the complainant's evidence which were difficult to accept, particularly about the machete, which became more elaborate, the stool in the loungeroom on which the laptop was placed in the latter part of the events, and the extent of the applicant's drinking. However, the jury had the opportunity to observe the complainant give evidence and assess his evidence. There were aspects of his evidence which gave credence to his account. Moreover, as Davies J has addressed, the early and consistent complaints, beginning in the early hours of the morning and during the next day, gave the complainant’s account credibility.

95. [121]

    Further, in relation to count 4, the applicant admitted performing the physical act, albeit that he said it was at the request of the complainant. The applicant’s version of that event, and the reason for him performing it, were difficult to accept.

96. [122]

    Having considered the complainant's evidence carefully I do not have a doubt about the guilt of the applicant in respect of counts 4 and 7.

Appeal against sentence

1. [123]

   The three grounds of appeal in respect of the sentence are as follows:

2. [124]

   The applicant seeks leave to appeal against the aggregate sentence imposed upon him for the offences in counts 4 and 7. The aggregate sentence was a term of imprisonment for two years, four months with a non-parole period of one year, three months. The sentences indicated for the individual counts were two years, two months imprisonment with a non-parole period of one year and one month for the offence in count 4, and eight months imprisonment for the offence in count 7. The sentence commenced on 5 August 2022. The non-parole period expired on 4 November 2023 and the applicant is currently on parole. The sentence will expire on 4 December 2024.

3. [125]

   Although the applicant is now on parole he pressed the sentence appeal, because he is due to be re-tried for the offences on which the jury could not reach verdicts, and if he is convicted of any of those, and comes to be sentenced for them, he seeks to rely on any variation of the sentence under consideration.

4. [126]

   The maximum penalties for the offences were as follows. The offence of aggravated sexual touching, contrary to s 61KD(1)(a) of the Crimes Act, had a maximum penalty of seven years imprisonment and a standard non-parole period prescribed of five years imprisonment. The offence of aggravated sexual act towards the complainant, contrary to s 61KF(1)(a) of the Crimes Act, had a maximum penalty of three years imprisonment, with no standard non-parole period prescribed. In each offence, the circumstance of aggravation was the fact that the complainant had a cognitive impairment.

5. [127]

   The facts her Honour found for sentence were as follows, and no issue with the fact finding was raised by counsel for the applicant.

6. [128]

   At the date of the offences, which was the night of 21 October 2020 or the early morning of 22 October, the applicant was 38 years old. He lived with his partner and her 16 year old son.

7. [129]

   The complainant was aged 18. He had an autistic spectrum disorder and a mild intellectual disability. The complainant and the applicant's partner's son were best friends, having met at high school. The applicant's partner's son also had autism and an intellectual impairment.

8. [130]

   Before that evening the complainant had stayed at the applicant's home on a number of occasions. On the afternoon of 21 October 2020, the complainant went to the applicant’s home to mow the lawn, as prearranged with the applicant. Afterwards, the applicant and complainant spoke about tidying the garage at the house the next day. The applicant invited the complainant to stay the night. The complainant showered and changed into clothes the applicant lent him.

9. [131]

   By around 9:30pm the applicant's partner and her son had gone to bed. The complainant and the applicant were in the entertainment room watching television, sitting in separate chairs about 1½ metres apart, both facing the television. In terms of the facts of the offence in count 4, her Honour found that the applicant asked the complainant "Do you want to be manscaped?" and the complainant replied no, he did not. The complainant then went to the bathroom to urinate and closed the door behind him. The applicant followed him, opened the door and went into the bathroom. He told the complainant to stand there and he would shave him. The applicant used a cordless hair trimmer to shave pubic hair from around the complainant's penis. The complainant was scared and did not know what to do. He did not consent to the applicant shaving his pubic hair. Her Honour found that the applicant committed the act to obtain sexual gratification or arousal. Her Honour found that the applicant was reckless as to the fact that the complainant was not consenting to the shaving of his pubic hair.

10. [132]

    The facts her Honour found in relation to the offence in count 7 are as follows. After the complainant showered and dressed he went back to the entertainment room. The applicant had already returned there. The applicant asked the complainant if he wanted to watch pornography. The complainant replied "Not really. I don’t want to." The applicant told the complainant "It's going to be alright" and the complainant replied "Okay. Whatever." The applicant commenced playing pornography on a laptop computer. The applicant and the complainant sat on the same chairs they had been sitting on before they went to the bathroom. Her Honour found that the applicant suggested to the complainant that they masturbate each other and the complainant replied "No. I'm right. No thank you." The applicant remained seated in his own chair, pulled his own pants down and masturbated his penis. Although the light in the room was off and it was dark, the complainant was able to see what the applicant was doing because of the light from the laptop computer and the television. The complainant remained seated in his chair. The complainant did not consent to the applicant masturbating towards him. Her Honour found that the applicant was reckless as to the fact that the complainant did not consent to the applicant masturbating himself in the complainant's presence.

11. [133]

    In assessing the objective seriousness of the offence in count 4 her Honour took into account the following factors. The part of the complainant's body touched by the clippers was the pubic hair around the complainant’s exposed penis. The offence was opportunistic, not planned, and while it disregarded the complainant's wishes, there was no overt violence or threats. The complainant felt scared at the time the conduct occurred. The offence was aggravated by it happening in the home of the complainant's best friend, where he was staying overnight as a guest and was entitled to feel safe. The applicant was a stepfather figure to the complainant's best friend. The complainant was 18 years old at the time. The applicant was approximately 20 years older than the complainant.

12. [134]

    Her Honour found that the applicant was aware that the complainant was cognitively impaired at the time he carried out the sexual touching. The sexually motivated touching of the complainant by the applicant was masked as an act of physical grooming, which her Honour found indicated the applicant taking advantage of the cognitive impairment of the complainant known to him. Her Honour accepted that it was the hair trimmer which had contact with the area of the complainant's body rather than direct skin to skin contact. Her Honour was unable to make a finding as to the duration of the conduct. Her Honour assessed the offence as below the mid range of objective seriousness for an offence of its type, but not substantially so. Counsel for the applicant raised no issue with her Honour's findings of objective seriousness in respect of both counts.

13. [135]

    In respect of the offence in count 7 her Honour found that the offence fell just in the middle of the range of objective seriousness for an offence of its type. In so finding, her Honour took into account the applicant's position as stepfather of the complainant's best friend, the age difference between the applicant and complainant, the offence occurring in the home in which the complainant was a guest staying overnight, and the applicant's knowledge of the complainant's cognitive impairment. The conduct involved was the applicant masturbating in close proximity to the complainant, sitting in a chair about 1.5 metres from the complainant, although facing away from the complainant, as both their chairs were facing in the same direction towards the television. The room was dark but the complainant could see what the applicant was doing because of the light coming from the laptop computer and the television. The act was carried out towards the complainant in the sense that it was done in his presence and the applicant intended the act of masturbation be seen by the complainant. The offending was opportunistic and not planned, and involved no force or threats or coercion beyond the offence being committed without the complainant's consent. The complainant did not know the duration of the offending conduct and her Honour made no finding beyond that. Her Honour found that this offence occurring after the previous offence was relevant only insofar as it could not be said to have occurred in isolation.

14. [136]

    Her Honour had regard to a Victim Impact Statement prepared by the complainant's mother in consultation with the complainant. Her Honour observed that the Victim Impact Statement referred to conduct in respect of which the applicant had been found not guilty or in respect of which the jury were unable to reach verdicts, the latter involving the most serious conduct alleged. Her Honour was conscious that much of the Victim Impact Statement recounted harm from all of the alleged conduct for which the applicant had stood trial, and did not separate out the impact of the two offences before her Honour for sentence. Accepting submissions from counsel for the applicant on sentence, her Honour took into account that the two subject offences before her for sentence "must have had some negative impact" upon the complainant. Counsel for the applicant did not raise any issue about her Honour's approach to that matter.

15. [137]

    Her Honour took into account that the applicant had facilitated the administration of justice during his trial by not taking issue with the fact that the complainant suffered from a cognitive impairment at the time of the offences, which obviated the need for expert evidence. Her Honour found that s 22A of the Crimes (Sentencing Procedure) Act was engaged and she would take it into account as part of the instinctive synthesis.

16. [138]

    Her Honour took into account the applicant's personal circumstances. These are relied upon by the applicant, particularly in relation to ground 6.

17. [139]

    The applicant was 39. His parents separated when he was 14 or 15 years old. He told report writers of emotional and sexual abuse at the hands of his mother as a child and that his mother was physically abusive to his brother and father. He reported that after his parents separated, his mother prevented him and his siblings from seeing their father. The applicant reported that his mother often threatened to commit suicide, which he found distressing. He said the family struggled financially. When he was 16 the applicant left school and moved to Queensland to live with his father. He had a history of working consistently throughout his life, until he ceased work in about September 2018 due to a diagnosis of functional neurological disorder. He was at the time of sentence unable to work and in receipt of a disability support pension due to the diagnosed disorder. He did not have an extensive criminal history. His prior offences arose from a single event in December 2015. Her Honour found that the prior offences five years earlier, which resulted in the imposition of s 9 bonds, had limited significance in sentencing the applicant, deprived him of leniency that may be afforded a first-time offender, but were given no more weight than that.

18. [140]

    Her Honour noted the multiple symptoms of the applicant's chronic functional neurological disorder, including seizures and tremors and the need to use a walking stick to assist in his movement. Her Honour found that as a result of the physical manifestations of his disorder, the applicant would find a full time custodial sentence more onerous.

19. [141]

    Her Honour took into account that since his diagnosis of functional neurological disorder in 2018, the applicant had experienced an onset of anxiety, particularly when in public, when he experienced anxiety symptoms, including panic attacks and an increase in tremors. As a result of the mental health manifestations of his functional neurological disorder and the applicant's social anxiety disorder, her Honour found that a full time custodial sentence would weigh more heavily on him and that as a consequence of his mental conditions he was "to a limited extent, a less suitable vehicle for general deterrence".

20. [142]

    Her Honour found that the applicant's childhood and background constituted a background of social disadvantage and deprivation. Her Honour noted that although there was no evidence supporting a causal connection between that deprivation and the offences, the applicant's background afforded a modest reduction in his moral culpability. Her Honour found that the role of general deterrence was further ameliorated to a modest extent because of that factor, but having regard to the nature of the offending, still had a role to play.

21. [143]

    Her Honour noted that because the applicant had conducted a trial he had not expressed any remorse. Her Honour found the applicant had moderate prospects of rehabilitation and risk of reoffending.

22. [144]

    In terms of the principle of totality, her Honour found that the sentence for the aggravated sexual touching offence could not entirely comprehend the criminality in the aggravated sexual act offence and that there should be some degree of notional partial accumulation in the aggregate sentence, although "it should not be great".

23. [145]

    In considering whether "no sentence other than imprisonment" was appropriate, for the purpose of s 5 of the Crimes (Sentencing Procedure) Act, her Honour said the following:

24. [146]

    I will deal with her Honour's findings in respect of whether to order that the aggregate term of imprisonment be served by way of an Intensive Correction Order when I deal with ground 5.

25. [147]

    In respect of ground 4, counsel for the applicant relied on the statement by the Crown in submissions to the sentencing judge that if the applicant was being sentenced purely for the offence in count 7 then even despite the complainant’s cognitive impairment, a non-full-time custodial sentence would be within the range. However, counsel acknowledged the concession made by counsel for the applicant before her Honour, that the s 5 threshold was crossed in relation to the offence in count 7, on the basis that it was not an isolated act. Counsel submitted that the conduct the subject of count 7 was not such that the s 5 threshold was crossed, having regard to factors including that there was no physical contact with the complainant. Counsel further relied on the applicant's subjective case disclosing significant mitigating considerations. Counsel submitted that if the Court found that the sentence the applicant has partly served, at least to the extent of the non-parole period, should have been served differently, this Court should impose a Community Correction Order.

26. [148]

    The Crown relied on the concession by counsel for the applicant on sentence that the s 5 threshold had been crossed for the offence in count 7, and submitted that pursuant to Zreika v R [2012] NSWCCA 44, the applicant should not be permitted to resile from that concession. The Crown submitted that this Court would not find that there had been a serious injustice nor that the concession ought plainly not to have been made. The Crown submitted that it was open to the sentencing judge to find that no sentence other than imprisonment was appropriate for that offence, given the circumstances of the age of the complainant, the age difference between the applicant and complainant, that the complainant suffered from a cognitive impairment and was the applicant’s stepson’s friend. The Crown relied on the statement of Hamill J in Sarhene v R [2022] NSWCCA 79 that when another offence for sentence requires imprisonment it may be appropriate to impose a concurrent short term of imprisonment.

27. [149]

    Section 5(1) Crimes (Sentencing Procedure) Act states:

28. [150]

    In Sarhene Hamill J said [36]:

29. [151]

    His Honour said at [38]:

30. [152]

    Taking into account all the circumstances of the offence in count 7, including that it happened a relatively short time after the other offence, the complainant's age, cognitive impairment and his being a guest in the applicant's home, the distance between the applicant and the complainant when the act occurred, and the findings her Honour made about the modest amelioration in the applicant’s moral culpability and general deterrence, the applicant’s minimal prior record, and that the physical and mental symptoms of his disorder would make his experience of custody more onerous, I have come to the conclusion it was not open to her Honour to be satisfied that no sentence other than imprisonment was appropriate for the offence in count 7, despite the concession to that effect made by counsel for the offender in the sentence hearing.

31. [153]

    I would uphold ground 4 as it related to count 7.

32. [154]

    Her Honour sentenced the applicant in August 2022 before the High Court's decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 and this Court's decision in Zheng v R [2023] NSWCCA 64.

33. [155]

    Counsel for the applicant relied on the joint judgment in Stanley that the failure to consider the paramount consideration of community safety in s 66(1) of the Crimes (Sentencing Procedure) Act, by reference to the assessment required by s 66(2), constituted jurisdictional error. Counsel submitted that the sentencing judge sentenced the applicant without the benefit of the High Court's decision, and while her Honour expressly referred to the fact that community safety must be the paramount consideration in deciding whether to make an Intensive Correction Order, there was no reference within her Honour’s reasons to the risk of the applicant reoffending in a manner that may affect community safety. Counsel submitted that her Honour having found "I do not find that one method would more readily address the risk of reoffending than the other”, and having the choice of two options, her Honour chose the more onerous option. Counsel submitted that an Intensive Correction Order was the appropriate sentencing outcome.

34. [156]

    The Crown submitted that despite not having the benefit of the judgment in Stanley, her Honour clearly had regard to the applicant's risk of reoffending in a manner that might affect community safety, as required by Stanley, when determining whether to impose an Intensive Correction Order.

35. [157]

    The Crown referred to the High Court in the judgment of the plurality in Stanley at [76]:

36. [158]

    The Crown submitted that her Honour followed that approach and her finding that the appropriate sentence was one of full time detention was appropriate and reached upon proper consideration of all the relevant factors and not in error.

37. [159]

    In Zheng, Gleeson JA distilled the following from Stanley:

38. [160]

    Judge Smith SC said the following in her remarks on sentence:

39. [161]

    Her Honour considered all the factors thoroughly. When regard is had to all that her Honour said, it cannot be said that her Honour did not consider the applicant's risk of reoffending in a manner that may affect community safety. Her Honour’s finding was that the evidence was inconclusive. The plurality in Stanley recognised that that may occur, at [76]. Although another judge may have considered an ICO appropriate for the applicant, I am not satisfied there was any error demonstrated in the way her Honour approached her sentencing task.

40. [162]

    I would not uphold ground 5.

Consideration of resentencing

1. [163]

   Error having been established in respect of ground 4 and count 7, this Court is then required to consider s 6(3) of the Criminal Appeal Act 1912, which states:

2. [164]

   Having identified error in respect of ground 4, I will not deal with the manifest excess ground, but I will refer to the submissions on this ground in the context of consideration of re-sentencing.

3. [165]

   Counsel for the applicant submitted that the aggregate sentence was excessive, having regard to the total criminality of the applicant's conduct and his significant subjective circumstances. I have referred to those above, as her Honour did in her remarks on sentence. Counsel focussed on the notional two month accumulation between the sentences indicated for each offence as contributing to the manifest excess of the aggregate sentence.

4. [166]

   The Crown submitted that the sentence imposed on the applicant was not unreasonable or plainly unjust.

5. [167]

   As noted above, counsel for the applicant submitted that this Court should make a Community Correction Order in lieu of imprisonment.

6. [168]

   Section 8 of the Crimes (Sentencing Procedure) Act provides:

7. [169]

   A Community Correction Order commences on the date on which it is made: s 86.

8. [170]

   Consideration of resentencing in this case is complicated because the applicant has served a substantial part of his sentence. His non-parole period of one year three months expired on 4 November 2023, such that he is currently on parole, and the sentence will expire on 4 December 2024.

9. [171]

   I am of the view that a Community Correction Order would not be an appropriate penalty for the offence in count 4, given its circumstances. An ICO may have been at first instance, but is not so now because commencement of an ICO cannot be backdated (s 71 Crimes (Sentencing Procedure) Act), and the applicant has served his non-parole period and a substantial portion of his sentence. To impose an ICO now would expose the applicant to the risk of revocation and would thereby be a more severe sentence.

10. [172]

    I have referred above in [152] to the factors relevant to sentencing for the offence in count 7 and I will take them into account in resentencing him.

11. [173]

    The relevant factors in relation to the offence in count 4 are the part of the complainant’s body touched, that it was with clippers, the age of the complainant, his cognitive impairment, the relative ages of and relationship between the applicant and the complainant, the applicant’s personal circumstances, including those which gave rise to his reduced moral culpability, the physical and mental symptoms of his disorder and his limited prior record.

12. [174]

    The applicant’s affidavit tendered in the event of resentencing confirmed that his disorder caused him difficulty in custody. He also experienced long periods in his cell, in part due to COVID outbreaks.

13. [175]

    I would grant leave to appeal, allow the appeal, quash the aggregate sentence imposed in the District Court and in lieu thereof impose the following sentences: