Astill v R

1. [1]

   BELL CJ: The Applicant, Mr Wayne Gregory Astill, was a Senior Correctional Officer at the Dillwynia Correctional Centre (the Correctional Centre).

2. [2]

   He stood trial in the District Court at Sydney before her Honour Judge O'Rourke SC (the trial judge) and a jury between 25 July 2022 and 25 August 2022 on an indictment which contained 51 offences involving his interactions with some 13 female inmates. The charges can be broken down as follows:

   1. (1)

      13 counts of aggravated sexual assault, contrary to s 61J of the Crimes Act 1900 (NSW) (the Crimes Act) (counts 13, 15-21, 28-31 and 44).

   2. (2)

      22 counts of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act (counts 1-4, 6, 8, 9, 11, 12, 23, 25-27, 34, 35, 39-41, 46, 47, 49 and 50).

   3. (3)

      Three counts of aggravated act of indecency, contrary to s 61O(1A) of the Crimes Act (counts 5, 14 and 22).

   4. (4)

      13 counts of misconduct in a public office, contrary to the common law (counts 7, 10, 24, 32, 33, 36-38, 42, 43, 45, 48 and 51).

3. [3]

   The Applicant was also charged with a further three back up and related offences pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act), namely:

   1. (1)

      Two counts of intimidation with intent to cause fear of physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and

   2. (2)

      One count of unlawfully delivering tobacco to an inmate contrary to s 253G(2)(a) of the Crimes (Administration of Sentences) Act 1999 (NSW).

4. [4]

   The Applicant pleaded guilty to seven of the 13 counts of misconduct in public office (counts 7, 24, 32, 36-38, and 43) and not guilty to all of the other counts.

5. [5]

   The charges of misconduct in public office took a broadly common form, identifying a date range and then alleging that between those dates, the Applicant “did misconduct himself in public office by engaging in an inappropriate sexual relationship with” various female inmates whilst he was a Senior Correctional Officer at the Correctional Centre.

6. [6]

   The Applicant also made admissions as to the factual basis of counts 37, 38 and 43, which involved three complainants, by virtue of associated agreed facts which were put before the jury.

7. [7]

   The Crown relied on a detailed tendency notice which identified the tendency sought to be proved as the Applicant’s “tendency to act in a particular way towards female inmates at Dillwynia Correctional Centre while he was on duty as a Senior Correctional Officer”, namely to:

8. [8]

   The evidence identified in the tendency notice as supporting the tendencies alleged included the admitted conduct, the charged conduct and other uncharged conduct. By the time of final addresses and the summing up, the Crown did not rely upon the sixth tendency in the tendency notice (although the underlying evidence remained relevant to one of the s 166 matters) and the fourth and fifth tendencies were effectively run together.

9. [9]

   Paragraphs 5 and 6 of the tendency notice were as follows:

10. [10]

    There was no objection to the tendency evidence nor any objection to the trial judge’s directions in relation to the tendency material.

11. [11]

    On 25 August 2022, the jury found the Applicant guilty of counts 2-6, 8-10, 14, 22, 23, 25-31, 33-35, 42, 44, 45 and 49-51. The counts for which he was convicted related to his interactions with some nine female inmates at the Correctional Centre. The convictions included five counts of aggravated sexual assault without consent involving two of the female inmates. The trial judge assessed the objective gravity of three of these five counts as being “at” or “around mid-range”, one as “above mid-range” and one as “well above mid-range”.

12. [12]

    The Applicant was acquitted in respect of 17 charges, namely counts 1, 11-13, 15-21, 39-41, and 46-48.

13. [13]

    On 31 March 2023, the trial judge imposed an aggregate sentence of 23 years imprisonment, commencing on 24 August 2022 and expiring on 23 August 2045, with a non-parole period of 15 years and four months, expiring on 23 December 2037.

Grounds of Appeal

1. [14]

   The Applicant raises the following two grounds of appeal in relation to his conviction:

2. [15]

   The formulation of these grounds engages what has been described as the third basis or third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). In the language of Simpson AJA in Day v Rex (No 2) [2023] NSWCCA 312 at [75], a miscarriage of justice in the context of s 6(1) of the Criminal Appeal Act will occur:

3. [16]

   In the language of Beech-Jones CJ at CL (as his Honour then was) in Zhou v R [2021] NSWCCA 278 at [22]:

4. [17]

   The nature of the grounds of appeal obviates the need to identify the detail of the individual offences for which the Applicant was found guilty, and also avoids the need to identify the individual complainants beyond the fact that each was a female inmate at the Correctional Centre during the Applicant’s tenure as a Senior Correctional Officer.

5. [18]

   The Applicant also raises a sole ground of appeal in relation to the aggregate sentence imposed upon him, namely that it was “manifestly excessive both with respect to the maximum and minimum terms.”

6. [19]

   The Applicant seeks the quashing of his convictions and a new trial on those counts upon which he was convicted.

Rule 4.15

1. [20]

   The Applicant accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) applies to the two grounds of appeal in relation to the convictions as no issue was taken during the trial with the directions given to the jury which are now the subject of complaint.

2. [21]

   In Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26 at [82]-[90], I set out the following principles in relation to r 4.15 of the Criminal Appeal Rules:

3. [22]

   Reference was also made in Gould to the following statement of principle in Abusafiah v R (1991) 24 NSWLR 531 at 536; (1991) 56 A Crim R 424:

Ground 1 – tendency direction

1. [23]

   The first ground of appeal was that a “miscarriage of justice was occasioned by the directions given to the jury concerning the Crown case on tendency”. As will be seen, the criticism was not of the directions per se but as to their completeness. Consistent with Greenhalgh v R [2017] NSWCCA 94 (Greenhalgh), Mr Bicanic, who argued a difficult case with considerable skill, formulated a supplementary direction which he submitted should have been made: see [33] below.

2. [24]

   The Applicant made three distinct complaints which were said to give rise to a miscarriage of justice, namely:

   1. (1)

      “The directions to the jury did not conform with the confirmation by the Crown … and make plain that, in so far as the tendency evidence [was] comprised of the complainant’s own allegations in the indictment, it could not be used as tendency evidence (i) for the very same count or (ii) for any of the complainant’s own counts in the indictment (where the complainant had more than one count in the indictment alleging offences other than common law misconduct offences)”;

   2. (2)

      “…the jury … were not told that, in so far as the tendency evidence included the very same allegations in the indictment, lack of satisfaction at the tendency stage would mean that a verdict of not guilty would need to be returned in relation to that count or counts”; and

   3. (3)

      “The circumstances of this case warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act that, in so far as the Crown case on tendency relied upon the allegations in the indictment, the jury had to be satisfied beyond reasonable doubt of those acts before engaging in tendency reasoning.”

3. [25]

   The Applicant emphasised that, in the course of the trial, the learned trial judge had from time to time expressed concern at various aspects of the tendency case. This is in a sense true but her Honour’s concern arose from the fact that there were in fact four or five tendencies being relied upon by the Crown in a case with multiple complainants and multiple charges and not all tendencies were necessarily germane to all counts. As such, her Honour recognised that she had to be careful to be clear in her directions to the jury in relation to tendency. In the course of the hearing, the trial judge also clarified with the prosecutor that the Crown did not seek to rely for tendency purposes on evidence by a complainant on one count to support another count relating to the same complainant.

4. [26]

   On 18 August 2022, prior to the trial judge commencing her summing up, the following further exchange occurred in relation to the tendency direction:

5. [27]

   The trial judge’s directions to the jury in relation to the tendency evidence commenced on 19 August 2022:

6. [28]

   Her Honour also said, immediately before posing the rhetorical question “So what is tendency reasoning and how might it apply?”:

7. [29]

   In the emphasised passage, the trial judge drew a distinction between evidence given by a complainant and support for that evidence from “other evidence” which necessarily included evidence of other witnesses. Her Honour also explained that “such other evidence” included that which underpinned tendency reasoning. This observation is relevant to the first limb of appeal ground 1.

8. [30]

   Her Honour went on to outline the four tendencies ultimately contended for by the Crown (see [7]-[8] above) as well as the three bodies of evidence upon which it relied as demonstrating those tendencies. Her Honour then recapitulated as follows:

9. [31]

   The trial judge next gave the following direction as to what the Crown was required to prove before the jury could rely upon tendency reasoning:

10. [32]

    Her Honour’s directions as to onus and standard of proof and the need to consider each charge separately were not the subject of any complaint by the Applicant.

11. [33]

    As noted above, the Applicant’s complaint was not so much with the form of the tendency direction in fact given but involved the contention that the directions given should have been supplemented by the following further direction:

12. [34]

    As will be seen, this posited further direction was formulated prior to the High Court’s recent decision in Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 (Roder). Despite the Applicant’s submissions to the contrary, that decision tends strongly against his case under ground 1 of the appeal for the reasons explained more fully below. Before turning to consider the three limbs of the Applicant’s argument with respect to ground 1, some key aspects of the decision in Roder should be noted.

13. [35]

    The accused in Roder was charged with 27 child sexual offences in relation to two complainants. The Crown relied on the 27 charged acts and six uncharged acts to support the existence of an alleged tendency on the part of the accused, as set out in a tendency notice, to have a particular state of mind and to act in a particular way in relation to the two complainants. The accused accepted that the charged and uncharged acts were cross-admissible as tendency evidence but sought a pre-trial ruling from the trial judge as to the form of the direction to be given to the jury on the standard of proof to be applied in relation to the charged acts for the purposes of determining whether the tendency was established.

14. [36]

    The trial judge in Roder had proposed that:

15. [37]

    An appeal brought by the Director of Public Prosecutions (the Director) from the decision of the trial judge was dismissed by the Victorian Court of Appeal: Director of Public Prosecutions v Roder [2023] VSCA 262 at [17]-[18]. Their Honours made extensive reference to the decision of the High Court in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (Bauer) and the discussion, at [86], as to how trial judges should approach tendency evidence and directions to the jury in relation to uncharged acts relied upon to establish the tendency. What the High Court had said in Bauer included the following:

16. [38]

    There was also discussion in the Victorian Court of Appeal at [32]-[33] of a line of decisions of this Court which were distinguished on the basis of differences in statutory context.

17. [39]

    Although the proposed direction in Roder and the discussion of it by the High Court occurred in the specific statutory context of ss 61-62 of the Jury Directions Act 2015 (Vic), the significance of the decision extends beyond that statutory context.

18. [40]

    In upholding the appeal, the High Court rejected the Victorian Court of Appeal’s statement ([2023] VSCA 262 at [34]) that “the judge was correct to hold that the jury should be directed that every charged act relied upon by the prosecution as tendency evidence must be proved beyond reasonable doubt before it can be so used.” The High Court necessarily rejected the rationale which the Victorian Court of Appeal had proffered for that view, namely that:

19. [41]

    The High Court pointed out in Roder at [28], that the discussion by Basten AJA in JS v The Queen [2022] NSWCCA 145 at [43], “correctly identifies the alleged tendency as an intermediate fact that is to be proved in its own right and then deployed in aid of the proof of each charge” and that “the direction should identify the evidence said to support the alleged tendency and invite the jury to consider whether that tendency has been established” with “the balance of the summing up given to the jury mean[ing] that there was ‘no risk … that the onus and standard of proof were not understood and properly applied’.”

20. [42]

    At [37], under the heading “Content of directions”, the High Court said as follows:

21. [43]

    The Court had earlier in its reasons noted that a new and alternative form of possible direction had been raised in the course of oral argument before it, namely that “the jury should be directed that, when considering the respondent's guilt for each particular charge, they could not use the direct evidence of the corresponding charged act as part of the body of evidence relied on by the prosecution to support the alleged tendency.” The Court said at [33]-[34] that:

22. [44]

    The number, content and length of directions should not overcomplicate the jury’s task which will always be complex where there are multiple counts relating to multiple complainants. The High Court in Roder strongly indicated that there should be one tendency direction coupled with faithful reference by the trial judge to the evidence relied upon to establish the tendency and accompanied by clear directions as to onus and standard of proof as well as to the contents of the elements of the offence(s) and of the need for separate consideration of each charge.

23. [45]

    In relation to the first limb of the Applicant’s argument in relation to ground 1 set out at [24(1)] above, it was correct that the Crown, in the course of the trial, made it plain to the trial judge that it was not relying on evidence given by one complainant to establish a tendency in order to support the charges against that same complainant.

24. [46]

    The question raised by this aspect of ground 1 was whether, in addition to various directions given by the trial judge including (but not confined to) her tendency directions, the jury should have been directed that it could not use evidence given by one complainant to establish a tendency to support the charges against that same complainant by means of a direction to the effect of that set out at [33] above.

25. [47]

    In my view, it was not necessary for the trial judge to have given a supplementary direction of the kind sought and, in light of Roder, it would probably have been wrong of her Honour to do so. Counsel for the Applicant sought to distinguish Roder on the basis that, in the present case, the Crown had imposed a cross-admissibility limitation on itself, such that the supplementary direction contended for in respect of tendency was warranted. To have given such a direction, however, would have unduly increased the complexity of the jury’s task, encouraged a revisiting of the underlying body of evidence supporting the alleged tendency on the occasion of the jury’s consideration of each charge and would have produced some of the other vices referred to in [34] of Roder.

26. [48]

    The same observation may be made in relation to the second limb of the Applicant’s argument under ground 1 which was that the jury were erroneously not directed that, insofar as the tendency evidence included the very same allegations in the indictment, lack of satisfaction at the tendency stage would mean that a verdict of not guilty would need to be returned in relation to that count or counts. The giving of such a further direction would detract from the simple elegance of the approach mandated by Roder and encourage the conflation of standards of proof which that decision was at pains to minimise.

27. [49]

    As Stern JA observed in the course of the hearing of the current appeal, the alternative direction advanced in the current case as being necessary in the circumstances of the case to prevent a miscarriage of justice was not in substance very different from the alternative direction put forward in Roder: see [43] above. The High Court in Roder made it plain that such a form of direction was not appropriate or desirable for a number of reasons. The trial judge’s direction to the jury set out at [31] above, namely that, if it was not satisfied that a particular tendency or tendencies had been established by the Crown, then tendency reasoning would not be available and the jury should disregard the tendency and decide the facts in dispute in relation to each count without resort to that method of reasoning, was clear, orthodox and consistent with Roder.

28. [50]

    But even putting Roder to one side, although the trial judge (perhaps understandably) did not use the language of cross-admissibility and limits on it in that part of her summing up which has been reproduced at [28] above, her Honour did direct the jury in terms which would appear to have satisfied the concern raised by counsel for the Applicant, drawing a distinction between evidence given by a complainant and support for that evidence from “other evidence”, which necessarily included evidence of other witnesses and tendency evidence: see [28] above.

29. [51]

    The passage from the summing up set out at [30] above also mitigates strongly against the Applicant’s attack on the trial judge’s tendency direction and undercuts any need for the supplementary direction posited after the event. When this matter was raised in argument on the appeal, Mr Bicanic, who appeared for the Applicant, accepted that the passages from the summing up set out at [28] and [30] above “go some way of potentially conveying to a jury that there are some limitations here”.

30. [52]

    The only real response given in relation to what the trial judge said in the passage from the summing up set out at [30] above was that it was of limited significance because it was simply provided by the trial judge as an example to the jury. In circumstances where no further direction was sought at trial, and in light of the concession noted at [51] above, that is not a compelling response.

31. [53]

    Mr Bicanic also submitted that the “proposed direction on this first issue would be entirely consistent with the separate consideration direction that was given, and it would have highlighted to the jury in another way, perhaps more forcefully and explicitly, in black and white, that this type of reasoning is not permitted for you.” The trial judge gave clear and repeated directions about the need for the jury to give separate consideration to each charge. Those directions did not lack clarity such that they needed to be reinforced by the further direction which the Applicant contended for.

32. [54]

    The Applicant also placed reliance on s 161A(3) of the Criminal Procedure Act in support of his first ground of appeal, the contention being that “in so far as the Crown case on tendency relied upon the allegations in the indictment, the jury had to be satisfied beyond reasonable doubt of those acts before engaging in tendency reasoning.” It was said that they should have been directed as such. Section 161A provides:

33. [55]

    The High Court in Roder at [29] observed that s 161A(3) relaxes the prohibition in s161A(1) in the circumstances contemplated by Shepherd v The Queen (1990) 170 CLR 573 at 584-585; [1990] HCA 56. Section 161A recognises that tendency evidence will not usually form an indispensable link in the chain of reasoning to guilt but is a form of circumstantial evidence which, generally speaking, only need be proved on the balance of probabilities.

34. [56]

    The terms of s 161A(3) were not engaged in the present case where there was direct evidence from each of the relevant complainants as well as, in relation to some of the counts, additional contemporaneous complaint evidence, documentary evidence in the form of some of the complainants’ diary entries, evidence of other correctional officers and various admissions made by the Applicant. In other words, the tendency evidence was not “indispensable” within the meaning of Shepherd in the sense that failure to prove the existence of the tendency would mean that there was no case to go to the jury: see Carbone v The King (No 2) [2024] NSWCCA 7 at [13]; Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [74].

35. [57]

    If the direct evidence of the complainant was not accepted in relation to particular counts, there would be no significant possibility of the jury relying on the tendency evidence to establish guilt, especially where appropriate directions were given to the jury as to onus and standard of proof and the need by the jury to determine each count separately. Such directions were given in the present case, and the 17 counts which were not made out illustrated their efficacy. As submitted by Ms Nicholson for the Crown:

36. [58]

    None of the three separate but related arguments advanced by the Applicant in support of the first ground of appeal gave rise to a miscarriage of justice.

37. [59]

    In his submissions in reply, the Applicant acknowledged that the Crown did not close on the basis that the tendency evidence was cross-admissible “for their own counts”. In other words, this is not a case where injustice arose because of an uncorrected departure by the Crown from the way it had indicated it would put its case so that the Applicant was caught by surprise with consequent prejudice and a resulting miscarriage of justice.

38. [60]

    It is plain from the pattern of verdicts, i.e. the jury not convicting the Applicant on all counts and not convicting on all counts relating to the same complainant, that the jury was astute to deal with each charge separately as directed by the trial judge and did not treat the tendency evidence in an unthinking, uncritical or uniform way. The trial judge’s instructions to the jury included the following:

39. [61]

    The outcome of the jury’s deliberations was consistent with the members of the jury not only conscientiously having discharged their duty but also understanding and following the trial judge’s directions.

40. [62]

    So, too, the absence of any objection to the form or terms of the trial judge’s summing up to the jury tended against any conclusion that there was a “real chance” that the failure to give the direction now sought as part of the tendency directions given “affected the jury's verdict” or deprived the Applicant of a real chance of acquittal on those counts upon which he was convicted: see the authorities referred to at [15]-[16] above. In Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54], Kiefel CJ, Keane and Steward JJ observed that:

41. [63]

    Certainly, the failure to raise an objection by defence counsel is a “cogent consideration” in the context of assessing whether a miscarriage of justice has been established: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37] (Dookheea). Thus, to Beech-Jones CJ at CL’s observation in Cox v R [2022] NSWCCA 66 at [48] that “the matters raised by counsel for an accused at the trial … are often a sure guide to the true potential prejudice that the relevant event might have caused” may also be added “and the matters not raised”, at least where no question of competency of trial counsel is relied on: see Dookheea at [37]. No submission was made going to the competency of trial counsel in the present case.

42. [64]

    For the above reasons, I would refuse leave to appeal in relation to ground 1 pursuant to r 4.15 of the Criminal Appeal Rules. But, in any event, I would have dismissed ground 1 of the appeal had leave been granted.

Ground 2 – complaint evidence

1. [65]

   The second ground of appeal was that a “miscarriage of justice resulted from the failure to direct the jury that the complaint evidence could not be used for its ‘truth’ purpose given the jury were directed that the complaint evidence could only be used in relation to the ‘credit’ purpose.”

2. [66]

   The complaint evidence in question was admitted as evidence which was relevant and within the exception to the hearsay rule pursuant to s 66 of the Evidence Act 1995 (NSW) (Evidence Act). It was made clear at the time of its admission that it was not being tendered for the purposes of re-establishing witness credibility within s 108 of the Evidence Act and no limitation was placed on its use pursuant to s 136 of the Evidence Act.

3. [67]

   Counsel for the Applicant accepted that this ground of appeal was premised upon the Crown having confined its reliance on complaint evidence to questions of credibility and that, it having done so, it was incumbent on the trial judge to make clear to the members of the jury that they could not rely upon the complaint evidence to establish the truth of or to corroborate other evidence going towards the establishment of the individual charges beyond reasonable doubt.

4. [68]

   The Crown did not accept that premise and, for the reasons set out below, the premise was flawed such that this ground must fail. Moreover, in circumstances where the trial judge could have, and probably should have (but by apparent oversight did not), directed the jury that they could rely on the complaint evidence for “truth” purposes, subject to their accepting the particular complainant as a reliable witness, her Honour’s failure to do so enured to the benefit, rather than to the detriment, of the Applicant such that it could not be said that a miscarriage of justice flowed from the direction that was in fact given.

5. [69]

   As already noted, the Applicant’s argument was predicated on the contention that the Crown only relied upon the complaint evidence for “credibility” and not “truth” purposes. This contention was not sustainable on an examination of the trial transcript.

6. [70]

   The Applicant’s whole argument was founded on the following sentence in the Crown Prosecutor’s closing address which it was said confined the Crown’s case in the use of complaint evidence to the limited purpose of re-establishing credibility. That passage which, in its transcription at least, was not entirely clear, was as follows:

7. [71]

   Apart from the fact that, from its context, this statement by the Crown Prosecutor related only to one of the complainants, the phrase “and consistent with it having happened” manifested a use of the evidence for “truth” purposes, consistent with its admission as an exception to the hearsay rule.

8. [72]

   Put simply, it is not possible to spell out from the extracted passage relied upon an intention by the Crown to confine its reliance on the particular complaint evidence to mere credibility purposes. Still less is it possible to discern from that single sentence an intention to confine the Crown’s reliance on the balance of the complaint evidence adduced in the trial from various other inmates to a credibility or non-truth purpose.

9. [73]

   In this respect, Ms Nicholson, who appeared for the Crown, took the Court to numerous other passages in the Crown’s closing address where it was clear that other complaint evidence was being used for truth purposes. For example:

10. [74]

    Ground 2 must fail for this reason alone, but even if it had some merit, the trial judge’s failure to direct the jury that it could use the evidence as support for the truth of the matters charged and about which contemporaneous complaint had been made operated to the benefit rather than the detriment of the Applicant. For this reason, as well as those set out in [58]-[63] in respect of ground 1, no miscarriage of justice arose.

11. [75]

    For the above reasons, leave to appeal in relation to ground 2 of the appeal should be refused, but even if leave were not refused, I would have dismissed this ground of appeal.

The sentence appeal

1. [76]

   The sole ground of appeal relating to the Applicant’s sentence was to the effect that the sentence imposed by the trial judge was “manifestly excessive both with respect to the maximum and minimum terms.” Consideration of a challenge to a sentence on such a ground must begin with an acknowledgment that there is no single correct sentence, and that sentencing is not a mathematical exercise but, rather, requires an instinctive synthesis involving the balancing of many different and conflicting features: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [84].

2. [77]

   The principles in relation to challenges to an aggregate sentence on the basis that it is manifestly excessive are well-established and are conveniently expressed in the decision of RA Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

3. [78]

   In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39]-[40], RA Hulme J gave further useful guidance in relation to appellate review of aggregate sentencing exercises including that:

4. [79]

   As Adamson J (as her Honour then was) explained in CL v R [2014] NSWCCA 196 at [55], regard may be had to indicative sentences in a challenge to the alleged excessiveness of an aggregate sentence since if one or more indicative sentences is excessive, it may explain why (if it be the case) an aggregate sentence is excessive. In the present case, it was (significantly) not submitted that any of the indicative sentences set out in the table below were excessive. (The table, which was provided in the Applicant’s written submissions, sets out information relevant to the 34 counts in relation to which the Applicant was sentenced, identifying the 12 complainants to whom the offences related not by name or initial but by the letters A-L.)

5. [80]

   The trial judge also found one of the s 166 back up charges, that relating to intimidation, to be proved beyond reasonable doubt and to be “objectively serious”: see [3] above.

6. [81]

   The multiplicity of charges for which the Applicant was convicted, although varying as to their duration and seriousness, spanned a wide range of victims, all of whom were extremely vulnerable. This was a case where, as the trial judge noted at ROS 30, “the facts reveal behaviour which was part of a wide pattern of conduct: R v Gould [1999] NSWCCA 177 at [12].”

7. [82]

   The following extracts from the trial judge’s remarks on sentence should also be noted. At ROS 30, her Honour noted that:

8. [83]

   At ROS 36-37, her Honour said:

9. [84]

   At ROS 42, her Honour continued:

10. [85]

    In R v Obeid (No 12) [2016] NSWSC 1815 at [4], Beech-Jones J referred to the decision of Nettle JA in Director of Public Prosecutions v Marks [2005] VSCA 277 who said (at [35]):

11. [86]

    In R v Bohannan [2010] EWCA Crim 2261 at [64], Leveson LJ, Davis J and Lloyd Jones J held, in relation to cases involving the common law offence of misconduct in public office, that:

12. [87]

    Returning to the Remarks on Sentence, the trial judge said (at 45):

13. [88]

    Later, at ROS 46, her Honour said:

14. [89]

    In an important passage in her Remarks on Sentence, her Honour said at 48-49:

15. [90]

    It was candidly submitted on behalf of the Applicant that, given that he was convicted of 34 serious criminal offences committed over a period of time against multiple complainants, the primary judge was “justified in imposing a stern sentence” and the “ultimate aggregate sentence needed to reflect a degree of notional accumulation”. However, it was put that the “seriousness of the offending should not be seen to swamp or overwhelm the sentencing exercise”. That submission was to emphasise the importance of the totality principle to which her Honour properly referred and plainly applied as part of her overall sentencing discretion.

16. [91]

    Her Honour’s sentencing discretion was no doubt also informed by the fact that that “[t]he maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence”: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. Here, five of the offences for which the Applicant was convicted involving two victims carried a maximum penalty of 20 years with a standard non-parole period of 10 years. One of those offences (count 44) was assessed as being “well above mid-range” in terms of its objective seriousness. In respect of this count, her Honour described the offending as “aggressive” and “forceful”, and “accompanied by threats”: at ROS 29.

17. [92]

    It was submitted by the Applicant in relation to these five counts (counts 28-31 and 44), which attracted the highest indicative sentences specified by the trial judge, that they overlapped with the common law misconduct offences such that there should inevitably have been a degree of notional concurrency. It was also put that there should have been a degree of notional concurrency between counts 30 and 31 because those offences occurred during the same incident.

18. [93]

    So much may be accepted as a matter of principle. A major difficulty with the submission, however, was that, having regard to the indicative sentences, the trial judge’s sentencing plainly did involve a degree of notional concurrency and, in light of the number of offences and the indicative sentences, quite a high degree of notional concurrency. Her Honour was also conscious, in specifying the indicative sentences, of the need to not double count where the offending comprehended by the common law offences involved or included the acts on the indictment: see [83] above.

19. [94]

    The Applicant submitted that the severity of the overall aggregate sentence diluted the benefit that the Applicant received, namely discounts of 10-25%, for his guilty pleas in relation to the seven common law misconduct offences. It was put that those pleas encompassed “a great deal of admitted criminal offending against seven individual complainants” and that “this circumstance was not afforded the significance it deserved”. I would not accept this submission. Whilst it is true that there were some admissions, the Applicant nonetheless pleaded not guilty to some five further common law misconduct offences involving five separate victims, as well as pleading not guilty to all 44 of the statutory charges.

20. [95]

    The Applicant’s argument in relation to what was described as the “dilution” of the benefit of the limited pleas essentially entailed a complaint, in the context of a challenge to the aggregate sentence, of insufficiency of weight being afforded to the pleas. The Applicant’s candid submission that:

21. [96]

    A similar observation (and criticism) may be made of the Applicant’s submission in relation to the significance given by the trial judge in the exercise of her sentencing discretion to the fact that the Applicant “will be at risk and most probably placed in some form of protective custody”: at ROS 46. It was not put that her Honour did not take this matter into account but simply asserted that, as a subjective factor, it was not afforded the significance that should have been attributed to it. That this essentially reduced to an argument going to questions of weight may be seen in the Applicant’s written submission that “it appears to have played a very insignificant role in the ultimate synthesis”.

22. [97]

    It was additionally argued that the trial judge’s finding at ROS 42 that “specific deterrence has a huge role to play in this matter” was incongruous with her Honour’s acceptance at ROS 45 that “[i]n light of [the Applicant’s] age, mental [and] physical health and the sentence to be imposed … he is unlikely to reoffend or have the opportunity to do so.” This apparent incongruity was not raised as a separate ground of appeal and, whatever force it may have had had it been so raised, it cannot distract from the broad question raised by the third ground of appeal, and the principles to be applied by an appellate court when considering a challenge to a sentence on the ground that it was manifestly excessive.

23. [98]

    The offences for which the Applicant was sentenced involved 12 separate victims, all of whom were in an extremely vulnerable position. The period of the offending ranged between six weeks (count 45) and nearly five years (count 42). Counts 7 and 36 involved offending with a duration of over a year. Counts 10, 24, 32, 33 and 42 involved offending which, in each case, occurred over a duration of between two years and five years. The Applicant exploited the vulnerability of the victims in a deliberate, repetitive and systematic way in respect of which he showed no remorse. His actions involved a gross and continuing breach of trust, damaging in immediate terms to the inmates (as reflected in the victim impact statements). In broader terms, the offending was a violation of public trust and corrosive of respect for and confidence in the administration of justice. As the trial judge held, the Applicant held a high office within the Correctional Centre and exploited his rank and position for his own sexual gratification.

24. [99]

    Although the sentence was a stern one, it was appropriately so and was certainly not “so far outside the range of sentences available that there must have been error”. Nor was it “unreasonable or plainly unjust”: see [77] above.

Orders

1. [100]

   The orders of the Court are as follows:

   1. (1)

      Refuse leave to appeal in relation to grounds 1 and 2 of the appeal against conviction pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   2. (2)

      Refuse leave to appeal against sentence.

2. [101]

   STERN JA: I agree with the Chief Justice.

3. [102]

   BUTTON J: I agree with the Chief Justice as to all grounds of appeal against conviction and sentence.

4. [103]

   Regarding the proposed sentence appeal: the offending constituted an egregious undermining of the legitimacy of the criminal justice and custodial systems. The aggregate sentence, although very stern, cannot be said to be erroneous.