Steel (a pseudonym) v R

1. [1]

   PAYNE JA: The applicant, John Steel (a pseudonym) [1] , seeks leave to appeal from his conviction and sentence in the District Court at Sydney before Shead SC DCJ. The judge alone trial took place on non-consecutive days between 3 and 19 August 2021. The indictment contained the following four counts, all in relation to the same complainant:

   1. (1)

      Counts 1 to 3: Between 9 April 2016 and 25 April 2016 committing an indecent assault on a child under 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW); and

   2. (2)

      Count 4: Between 1 November 2018 and 31 January 2019 sexually touching a child under 10 years contrary to s 66DA(a) of the Crimes Act.

2. [2]

   On 7 December 2021, the trial judge found the applicant guilty of Counts 1 to 3. Her Honour found the applicant not guilty in respect of Count 4.

3. [3]

   On 13 July 2022, the applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months commencing on 10 August 2020. The applicant is first eligible for release to parole on 9 February 2025. The aggregate head sentence expires on 9 February 2028.

Background

1. [4]

   The applicant had been in an “on again off again” relationship with the complainant’s mother since the complainant was about 5 or 6 months old. The applicant was the biological father of the complainant’s two younger step-siblings. The charged offences were alleged to have taken place on three occasions. The first two occasions (Counts 1 to 3) were alleged to have occurred in the Easter school holidays in April 2016. On both those occasions, the applicant took the complainant, who was five years old, from her bedroom in the middle of the night and placed her on a sheet in the backyard where he indecently assaulted her. The third occasion (Count 4) was alleged to have taken place in late 2018 or early 2019 at a different address.

2. [5]

   The complainant first disclosed the conduct to a teacher in mid-2019 during a lesson on child protection, telling the teacher that, at her old house, her father had taken her into the backyard where he lay her down, lifted up her top and put his private parts on her stomach.

3. [6]

   The issue at trial was whether the offences described by the complainant occurred.

Grounds of Appeal

1. [7]

   The applicant appeals his convictions, relying on a single ground, namely:

2. [8]

   The applicant also seeks leave to appeal against the sentence imposed upon him. He relies on a single ground:

Relevant facts

1. [9]

   In what follows I set out the facts that I have found in accordance with the approach identified by the High Court in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [16], which I explain below. I will identify controversial matters in the evidence and make clear my finding in relation to those matters when addressing the grounds of appeal.

2. [10]

   The complainant was born on 28 December 2010. The complainant was five years old at the time of the events the subject of Counts 1 to 3 and eight years old when she was first interviewed by the police. The complainant was 11 years old when she gave evidence at the trial.

3. [11]

   It is important in understanding the issues on appeal to appreciate the way in which the complainant’s evidence in chief emerged. The complainant was first interviewed by the police on 14 August 2019. The recording equipment malfunctioned part-way through that interview. The participants in the recording were unaware of that technical failure so continued the interview. Notes were taken of the unrecorded parts of that interview by Ms Fern Mayak, a Child Protection Case Worker for the Department of Communities and Justice and Detective Senior Constable Leigh Gardiner, the Officer in Charge of the case and interviewing officer. Those notes were tendered in the trial.

4. [12]

   The complainant was interviewed again the next day, 15 August 2019. Both interviews were played as part of the complainant’s examination in chief pursuant to s 306U of the Criminal Procedure Act 1986 (NSW). The complainant’s examination in chief also comprised a short portion of evidence pre-recorded on 15 April 2021. Further evidence was given during the trial on 5 and 9 August 2021, where the complainant was cross-examined and re-examined.

5. [13]

   When first interviewed on 14 August 2019, the complainant said that she had come to talk about her dad who “didn’t do very nice things to me”. Those things happened “in my old house twice, and in my new house that I’m living in now”. Both the first and second occasions were when the complainant was in kindergarten in 2016.

6. [14]

   Of the first occasion (the subject of Count 1), the complainant said that it happened at night, when everyone was asleep. The applicant (who she referred to as “dad”) came into her room, woke her up, took her to the backyard of the house, laid her down on a sheet and “started taking my clothes off and not doing nice stuff”. The applicant was initially on top of the complainant. He put his penis against her belly and near her leg. He then rolled or flipped her over, got on top of her again and started doing the same thing. The complainant said the applicant rubbed his “rude part” against her belly and near her leg. The complainant marked the lower chest and the inner thigh areas of a body chart to indicate where the applicant’s penis touched her body.

7. [15]

   During the first interview on 14 August 2019, the complainant said that the applicant threatened that, if she told her mother, her mother would never get a job, that she would become homeless and that “DOCS” would take her children off her. She also described the applicant picking her up and taking her to a trampoline where he indecently assaulted her again before carrying her inside. In the second interview on 15 August 2019, the complainant stated that those events took place during the second incident.

8. [16]

   The recording equipment malfunctioned as the complainant was marking a body chart in connection with the first incident. While the complainant gave an account of the second and third incidents during the first interview, it was not recorded. At trial, the complainant was cross-examined at length about what she had said about those incidents during the first interview based on the notes prepared by Detective Senior Constable Gardiner and Ms Mayak.

9. [17]

   The introductory portion of the complainant’s second interview was similar to the first. The complainant again explained that she was there to talk about her dad who “didn’t do very nice things to me”. The complainant provided an account of the first incident that took place at the first address. Her account of that incident was consistent with the description she had provided in the first interview but for two features: the complainant said that she had tried to push the applicant off her but he was too heavy, and the incident ended when the applicant heard a noise from over the fence, and not with the applicant taking her to the trampoline. The applicant went to investigate, and the complainant used the opportunity to run inside.

10. [18]

    The complainant was reminded that she had said the previous day that the applicant had said something to her during the incident. The complainant stated that that had taken place on the second occasion. The complainant described the applicant as saying “‘If you told mum this she’ll never get a job and you’ll just be homeless, and someone,’ DOCS will take us kids of[f] her”.

11. [19]

    In response to a question about what she had meant when she said the applicant’s “rude part” was against her leg and belly, the complainant explained that she meant his penis was underneath her shirt after the applicant had lifted her shirt and stuck it there. When he was on top of her, the applicant rubbed his penis up and down against her body. When the complainant tried to push the applicant off her with her hands, he told her to stop.

12. [20]

    After running back inside, the complainant put her nightdress, a “onesie”, on and got into bed. She said that it was hard to sleep. She later explained in evidence in the trial that it was hard to sleep “[b]ecause I didn’t know if he was coming around to do it again”.

13. [21]

    The complainant said that the first incident happened “[o]n the holidays, but I was in kindy”. It was a two-week holiday. The complainant was 5 years old at the relevant time. This was the subject of Count 1 in the indictment.

14. [22]

    The complainant then described the second occasion. It happened about a week later. The complainant was in bed, asleep when the applicant came and got her, and took her to “the back in the corner where the bricks were”. He had laid down a sheet which he placed her on. The applicant got on top of the complainant and started kissing her on the face and neck. It was as he was carrying her out to the backyard that the applicant uttered the threat described above. Later in the same interview the complainant said that the applicant had, during this second incident, pulled his penis out of his undies and rubbed it against her vagina and legs. The complainant was “pretty sure” that she was on the sheet at the time.

15. [23]

    The applicant then picked up the complainant and put her on the trampoline. The trampoline was circular and surrounded by a safety net. The applicant positioned the complainant against the net. He was on top of her. The applicant’s belly and legs were against her belly and legs. The applicant kissed the complainant and rubbed his penis against her belly and legs. The complainant agreed that the previous day she had drawn circles on the chest and genital area of the body chart to indicate where the applicant had rubbed his “rude part” against her body. The applicant’s penis went inside her undies and touched the outside of her vagina. The complainant felt scared. The applicant carried the complainant back to her bedroom and she went to bed.

16. [24]

    Count 2 relates to the indecent assault that took place on the sheet during the second occasion. Count 3 relates to the indecent assault that took place on the trampoline during the second occasion.

17. [25]

    The complainant was then asked about the third incident, which she had earlier said took place when she was in Year 3. This was the subject of Count 4. The complainant said that it took place in the house that she currently lived in. The complainant initially said that the incident took place during the school holidays but a short time later said that it happened on the first day back at school. The applicant, when asked by the complainant’s mother to get the complainant and her siblings out of bed, got the complainant out bed, carried her to the lounge room and put her down on the lounge. The applicant kissed the complainant on the neck and face. The complainant said, “And then he did, he, I don’t remember, but he did do, he was kissing me”. When asked whereabouts the applicant’s body was, the complainant said, “[o]n top of me, and then he rolled me over and that’s all I can remember”. She could not remember whether the applicant did anything else. The incident ended when her mother called out asking what she was having for breakfast.

18. [26]

    The complainant marked what became Trial Exhibit 3 to indicate where her body was touching that of the applicant. The complainant explained that the applicant’s face was beside hers and that he was on top of her.

19. [27]

    Later in the second interview, after a break, the complainant said that, during the third incident, the applicant rubbed his penis against her vagina while he was on top of her. She confirmed that the incident took place on the first day back at school, describing it as the first day of Year 3.

20. [28]

    After the third incident, the applicant left and the complainant did not see him again until sometime later when “he came back in the white car”. When asked how she felt when her mother told her that the applicant was not coming back, the complainant said “I didn’t say it out loud, I just said it like in my brain, I said, like, ‘Yes, he’s gone’”.

21. [29]

    The complainant told her teacher, Ms Nicola Austin, what the applicant had done. The complainant told Ms Austin after she had asked to leave the classroom during a lesson about sexual abuse. The complainant had difficulty recalling what she had said to Ms Austin but said “it was the same stuff that I told you”.

22. [30]

    In pre-recorded evidence given on 15 April 2021 that was interrupted by a legal issue, the complainant stated that she told the truth during her two earlier interviews. When the complainant’s examination in chief resumed during the trial on 5 August 2021, she confirmed that she had been doing her best to be truthful in her earlier accounts.

23. [31]

    The complainant confirmed that the incident on the trampoline had taken place during the second occasion. Whilst they were on the trampoline, the applicant’s belly, his legs and his penis touched the complainant’s belly and legs. The complainant marked a body chart to show where the applicant’s body touched her own on the trampoline.

24. [32]

    Also consistent with what she had said in her second interview, the complainant gave evidence that the applicant heard a noise over the fence during the first incident and that the applicant made the threat during the second incident.

25. [33]

    The complainant then described what took place on the first occasion. That description is consistent with the content of her earlier interviews, subject to the difference described above, being that the applicant carried her onto the trampoline during the second occasion.

26. [34]

    The complainant’s description of the second occasion when the applicant carried her first to the sheet in the corner of the backyard and later to the trampoline was similarly consistent. When asked how she felt about the applicant after this incident, the complainant said she felt confused “[b]ecause I was only little and I didn’t know if, like – if he was doing the right thing”. After some legal discussion, the applicant’s examination in chief continued:

27. [35]

    As to the third incident, the complainant said that it happened after Christmas. Her account was consistent with the evidence she gave in the pre-recorded evidence.

28. [36]

    The complainant recalled having spoken to Ms Austin when she was in Year 3 but could not recall what she had said. She recalled the then principal, Mr Picton, but said that she did not speak to him about what the applicant had done. As to why she had not told anyone before the disclosure to Ms Austin, the complainant said, “I didn’t know if it was the right thing to do or not”.

29. [37]

    In cross-examination, the complainant was shown three photographs of trampolines from which she selected the photograph marked Trial Exhibit 9 as the one that was most like the trampoline they had owned, although she noted that theirs was black and worn out. The complainant recalled that the trampoline was not set up when they initially moved into the first address and that, once it was set up, it was taken down again when they moved. The complainant’s mother later gave evidence to the same effect and said that the complainant and her siblings had received the trampoline as a Christmas gift in 2015 and that it had been set up in early January 2016 and taken down before they moved.

30. [38]

    The complainant agreed that she “sometimes” had fun with the applicant, for example, when they played “the tickle monster game”, that he sometimes helped her get ready for school, that she was sometimes happy with him, and that she “[o]n some occasions” thought of the applicant as her dad.

31. [39]

    The complainant was asked in cross-examination whether she recalled going to a reptile park with the applicant. The complainant initially said she recalled going to a reptile park but not with the applicant. A short time later, when court resumed after a break, the complainant informed the witness intermediary that she remembered something that she did not mention before but wanted to say. The complainant explained that she did not recall the applicant being at the reptile park, but she did recall him being in the car on the way home. The complainant said it was scary because he was arguing with her mother and clutching the steering wheel. The complainant’s mother later described the same event.

32. [40]

    The complainant was cross-examined at length on what she had said in the unrecorded portion of the first interview. She was asked on numerous occasions whether she recalled having said in that interview, speaking of the second occasion, that she was on top of the applicant and he was holding her down. The complainant said that she could not remember having said that.

33. [41]

    In the course of cross-examination about what she had said in the unrecorded portion of the first interview about the third incident, the complainant said, inter alia, that she thought she said that it was after Christmas. As to whether the applicant had been staying at her home for a number of nights prior to the third incident, the complainant said, “I think he was”. Of the address in question the complainant said, “[h]e would stay, like, every – once in a while”.

34. [42]

    In relation to Ms Austin’s classes that had touched on the topic of sexual assault, the complainant said that she was not taught about the word “rape”. She did not know what the word meant at the time (referring to the time of the disclosure in mid-2019). She confirmed that she spoke to Ms Austin straight after the class although she could not recall what she said to her. They spoke in the playground “near the geezer”, by which she apparently meant “Giza”, referring to a climbing structure that resembled a pyramid at that location. The complainant did not think she had spoken to her mother before speaking to Ms Austin. The complainant said that she told Ms Austin the truth. The complainant denied that she had made up the allegations.

35. [43]

    The complainant’s mother gave evidence about the nature of her relationship with the applicant, describing it as “[h]orrible”, and “[o]n again, off again”. During the period when they lived at the first address, she said the applicant lived with them “really off and on” and that he would split his time between that house and his mother’s house, when he was not in gaol. It was the same in 2016 when they were still at that address. The complainant’s mother gave evidence that the applicant did not stay overnight in the second address.

36. [44]

    The complainant’s mother initially said that she moved from the first address before Easter in 2016 but later said it was “not long after Easter day”. The family moved to two other addresses in the area before moving to the second relevant address. The complainant’s mother lodged a residential bond for the one of those addresses on 2 November 2016. The complainant’s mother said that they moved to the second address “[a]round the start of 2018, possibly March”. The complainant’s mother said that she had seen the applicant at a Monster Truck show on 20 April 2018. She was able to identify the date based on photographs on her mobile phone. The complainant’s mother said that she had not, at that time, seen the applicant since 2017 and that the applicant had not stayed overnight with her between the end of 2017 and April 2018. The complainant’s mother described an occasion when she saw the applicant outside their house in a white car, although she was unable to recall when it was. She said it was “probably mid-year” but could not say whether it was mid-2018 or mid-2019.

37. [45]

    The complainant’s mother agreed that there were occasions when they were living together when the applicant would help get the kids ready for school. In cross-examination by the Crown Prosecutor with leave, the complainant’s mother denied that she could be mistaken about the applicant having been present at the second address on some occasion in December 2018 or January 2019. The complainant’s mother described the complainant’s first day of Year 3, and said the complainant was “excited but nervous, cause we’d just moved into a new house”. Pausing there, the complainant’s mother’s evidence was inconsistent on this issue. She elsewhere suggested that by the time the complainant entered Year 3, they had lived at the second address for about 12 months. The complainant’s mother denied that the applicant was present on the morning of the complainant’s first day of Year 3 but said that he was present for her first day of Year 2.

38. [46]

    Ms Austin was the complainant’s Year 3 teacher. She gave evidence in relation to the disclosure made by the complainant to her. On 3 July 2019, Ms Austin taught a lesson that included child protection issues. Ms Austin initially said that the disclosure by the complainant occurred “a few weeks later” but later in her evidence appeared to agree that it took place on the day of the class. The complainant asked to speak to Ms Austin privately. Of the disclosure, Ms Austin said:

39. [47]

    Ms Austin agreed that the complainant may not have said “on the grass” but may have said that he laid her down in the backyard. Ms Austin reported the conversation to the principal, Mr Picton, but said that she was not present for any conversation that took place between the complainant and Mr Picton.

40. [48]

    Mr Picton gave evidence that he was contacted by Ms Austin about the complainant on 3 July 2019. He was absent on 4 July 2019 and spoke to the complainant on 5 July 2019. Ms Austin was present at the complainant’s request. Mr Picton said that, when asked to re-tell what she had told Ms Austin, the complainant said that she had been in the backyard with her father and that she had been “raped”. The complainant explained that she had been laying on the ground, that her father had taken off her clothes and that “they rubbed tummies”. He later had a conversation with the complainant’s mother which “would have” been in his office. Mr Picton said that while he “would have” made notes at the time of his conversation with the complainant, he did not know where they were and did not have them with him when he made his statement on 5 September 2019. Mr Picton did not ask the complainant whether she was referring to one incident or a number of incidents.

41. [49]

    Detective Senior Constable Gardiner and Ms Mayak also gave evidence regarding the interviews conducted with the complainant. Each witness explained in their evidence that their notes do not necessarily reflect the order in which the matters were addressed in the interviews. A number of errors revealed by a comparison between the transcript and the notes were identified in the course of the evidence.

42. [50]

    The applicant did not give or call evidence in the proceedings.

Appeal against conviction

1. [51]

   The applicant submitted that the prosecution case relied primarily on the evidence of the complainant, there being no forensic or medical evidence and no witnesses to the alleged assaults.

2. [52]

   The applicant’s submissions focused on Count 4. The applicant pointed out that the events the subject of Count 4 were closest in time to the first complaint which was made approximately five months after that event was alleged to have occurred. The offence was alleged by the complainant to have occurred when the applicant was staying at the second address, but the applicant said that this was contradicted by the evidence of her mother who stated that the applicant had never stayed at that address. The applicant submitted that this contradiction impacted on the reliability of the complainant in respect of that count, and that the complainant’s unreliability on that count impacted on the assessment of her reliability on the other counts.

3. [53]

   It was submitted that the evidence showed the complainant’s account of the remaining offences was “riddled with inconsistency and uncertainty”, including an inconsistency between her first account given to police on one day and a subsequent account given the following day. The applicant submitted that the issue before this Court is whether, having regard to the “unreliable evidence” in respect of Count 4 and the inconsistencies in respect of the remaining counts, this Court would entertain a doubt as to the applicant’s guilt in respect of Counts 1 to 3.

4. [54]

   The applicant referred to M v The Queen (1994) 181 CLR 487 at 493, where Mason CJ, Deane, Dawson and Toohey JJ said that in most cases, a doubt experienced by an appellate court will be a doubt which a jury ought to have experienced, and that it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. He correctly submitted that the principles in M applied equally to judge alone trials: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.

5. [55]

   The applicant referred to Dansie for its reiteration of the principles in M. He also cited Dansie at [16] for the following:

6. [56]

   The applicant pointed out that the trial judge gave herself a direction in line with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 and formed the view that the complainant’s recollection of events in Count 4 was “insufficient for the Crown to prove the charge”. Her Honour indicated that she had not formed a view that the allegation was “made up” but that there may have been reasons, including trauma, which “rendered [the complainant] incapable of fully recalling the event and placing it accurately in time”.

7. [57]

   Her Honour found at [380] that “[b]ecause it was a deficiency in [the complainant’s] memory concerning Count 4, and not any dishonesty or fabrication, my finding in relation to Count 4 does not adversely impact on [the] assessment of [the complainant’s] credibility and reliability for the remaining counts”. The applicant submitted that “a deficiency in the complainant’s memory” was directly related to the reliability of her account. It was submitted that, given the context of when Count 4 was alleged to have occurred in relation to the other counts, that this Court would regard it as adversely impacting on the assessment of the remaining counts.

8. [58]

   At [381], the primary judge set out and addressed in a table what had been submitted at the trial to be critical inconsistencies. The applicant submitted that that table failed to mention further critical inconsistencies or issues impacting upon them. He submitted that there were eleven further issues, as follows, which were “particularly important”:

   1. (1)

      The Count 4 allegation was said to have occurred at the second address, but the complainant’s mother gave evidence that the applicant had never stayed at that address.

   2. (2)

      The timing of Count 4 was alleged to be connected to the complainant’s first day of Year 3 in January or February 2019, but the first complaint to Ms Austin occurred 5 months later on 3 July 2019.

   3. (3)

      By contrast, the events alleged in Counts 1 to 3 occurred approximately 2 years earlier, so the “complainants’ deficiencies in memory thus related to the more recent allegation when she was also older”.

   4. (4)

      In the first interview it was said by the complainant that the events in Count 3 occurred immediately after Count 1, but in the second interview it was said that those events occurred immediately after Count 2.

   5. (5)

      In the first interview, the complainant said that Count 1 ended when she was carried to her bedroom, put on her clothes and got into bed, but in the second interview it was said that Count 1 ended when the applicant was distracted by a noise over the fence and she ran into the house.

   6. (6)

      It is apparent from the investigator’s notes that the noise from over the fence had arisen in the first interview but as having occurred at the end of Count 2.

   7. (7)

      The conversation relating to the complainant’s mother and DOCS was said to have occurred after Count 1 in the first interview but after Count 2 in the second interview.

   8. (8)

      The investigator’s notes stated that the complainant had described being placed on top of the applicant when the offending in Count 2 occurred, but in the second interview she claimed she was placed onto her back.

   9. (9)

      The inconsistencies at (4) to (8) above were submitted to be “particularly problematic” in circumstances where the inconsistent accounts were given on two consecutive days.

   10. (10)

       The complainant denied speaking to the principal, Mr Picton, but he was adamant he had personally spoken to her.

   11. (11)

       Ms Austin recalled the complainant saying that she had told her mother previously but that she had not been believed, but the mother gave evidence that she had not been aware of the allegations until contacted by the school.

9. [59]

   The applicant submitted that these inconsistencies are each significant, compound each other, and are especially concerning when many were made in the course of two interviews held on consecutive days. Even with regard to the advantages enjoyed by the trial judge, the applicant submitted that the inconsistencies would leave this Court with a doubt.

10. [60]

    As such, he submitted that the verdicts on Counts 1 to 3 are unreasonable and cannot be supported having regard to the evidence, pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW).

11. [61]

    The Crown submitted the verdict of not guilty in relation to Count 4 did not demonstrate that the primary judge lacked confidence in the credibility or reliability of the complainant or rejected her evidence. The trial judge accepted the complainant’s evidence as truthful but recognised there was a qualitative difference in her evidence concerning Counts 1 to 3 compared with Count 4. Given there was a logical basis for differentiating between the two verdicts, they were not inconsistent.

12. [62]

    The Crown described as “flawed” the applicant’s assumption that the complainant’s evidence in relation to Count 4 is unreliable in part because the evidence of the complainant’s mother is to be preferred. The mother’s struggle to recall dates and her “imperfect recollection” of the periods the complainant had spent living with her meant there was no reason, according to the Crown, to prefer her evidence over that of the complainant.

13. [63]

    The Crown instead submitted that, on Counts 1 to 3, the complainant’s evidence was sufficiently credible and reliable to support a finding of guilt. The Crown relied on the primary judge’s acceptance of the complainant as an impressive witness, who gave clear, direct and cogent evidence, answered questions carefully and confidently and did her best to tell the truth, without showing any animosity to the applicant in the course of her testimony.

14. [64]

    The Crown rejected the assertion that the complainant’s evidence was “riddled with inconsistency and uncertainty”, instead describing the consistency and detail of that evidence across the various accounts she gave as a powerful indicator of her truthfulness and of the cogency of her account.

15. [65]

    The Crown submitted that none of the matters raised by the applicant individually or collectively raise a doubt about the complainant’s reliability or credibility, and even if they did, it would only be a doubt that the trial judge’s advantage in seeing and hearing the evidence was capable of resolving.

16. [66]

    In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-493, Mason CJ, Deane, Dawson and Toohey JJ stated:

17. [67]

    Subsequently, in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ considered, at [34], the reasons why a jury may arrive at a verdict of acquittal:

18. [68]

    McHugh, Gummow and Kirby JJ made it clear that “imperfections of evidence” are “not uncommon in most trials” and said, at [96], in relation to the role played by the jury:

19. [69]

    These principles were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:

20. [70]

    At [22], their Honours said:

21. [71]

    In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, a case that concerned the prosecutor’s alleged misconduct in the course of a criminal trial, Hayne J expressed the test for an intermediate appellate court (when considering whether the convictions sustained below were “unsafe or unsatisfactory”) in the following terms:

22. [72]

    The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:

23. [73]

    The jury’s advantage includes but is not limited to its capacity to see and hear the witnesses give their evidence. As the High Court explained in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]:

24. [74]

    Any assumption that acquittals on some counts and convictions on others necessarily denotes rejection of a complainant’s credibility or reliability was rejected in MFA. I also agree with the conclusion of Simpson AJA in AH v R [2019] NSWCCA 152 that:

25. [75]

    In determining an appeal on an unreasonable verdict ground, the approach to be taken by the Court is the same where the trial has been before a judge alone as where the trial has been by jury: Dansie at [15]. Thus, the approach to be taken is in accordance with M, as applied in Filippou at [12] (French CJ, Bell, Keane and Nettle JJ) and [82] (Gageler J).

26. [76]

    In Dansie, the joint judgment of Gageler, Keane, Gordon, Steward and Gleeson JJ said at [8]-[9] that the reasoning in the joint judgment in M requires:

27. [77]

    In Slattery v R [2023] NSWCCA 117, Bell CJ (with whom Ward P and Wilson J agreed) set out the principles to be drawn from Dansie and Filippou as to the appropriate approach for an appellate court to follow. Bell CJ said:

28. [78]

    In the present case the advantage enjoyed by the trial judge was significant. So much is apparent from her Honour’s verdict judgment.

29. [79]

    There is no rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on one or more counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which they have returned guilty verdicts: MFA at [35] and [89]. The significance of verdicts of not guilty must necessarily be considered in the light of the facts and circumstances of the particular case: Barney v R [2023] NSWCCA 85 at [13], citing MFA at [34] and Markuleski at [65].

30. [80]

    At the hearing of the appeal counsel for the applicant, Mr Fraser, clarified that it was not submitted that the verdicts of guilty returned by the trial judge in respect of Counts 1 to 3 were inconsistent with her Honour’s verdict of not guilty in relation to Count 4 in the sense that the verdicts are irreconcilable: T1.31. That concession was correctly made and I accept it.

31. [81]

    At the outset the basis of the applicant’s case on appeal needs clearly to be stated. It was no part of the applicant’s case that the complainant’s account was improbable. The credibility, in the sense of the honesty of the complainant, was not impugned.

32. [82]

    The primary judge found about the honesty and credibility of the complainant:

33. [83]

    The applicant did not challenge that conclusion. My independent reading of the transcript does not cause me any doubt about the honesty or credibility of the complainant. No suggestion was made by the applicant that the complainant’s account was a fabrication or improbable, merely that it was unreliable.

34. [84]

    Having considered all of the evidence, I find that the complainant’s memory of the incident that corresponds with Count 4 was more limited than her memory of events in relation to Counts 1 to 3. While the complainant recalled some details of the third incident without apparent hesitation, for example, that the applicant carried her to the lounge and kissed her, she had more difficulty recalling what happened after that.

35. [85]

    It is also true that the complainant demonstrated some uncertainty about when the incident the subject of Count 4 happened, whether before or after Christmas 2018, on the day she found out who her teacher for the year was or on the first day of the school year. Further, the terms of the complaints made to Ms Austin and Mr Picton were broadly speaking consistent with the incidents that took place at the first address (that is, Counts 1 to 3) but did not include reference to an incident of the same character that had taken place at the second address (Count 4).

36. [86]

    The trial judge, in applying the Markuleski direction, turned her mind to whether her verdict of not guilty in relation to Count 4 gave rise to a reasonable doubt in relation to Counts 1 to 3. Her Honour concluded that it did not, explaining:

37. [87]

    Having considered all of the evidence, the verdict of not guilty in relation to Count 4 does not cause me to doubt the credibility or reliability of the complainant. Rather, the complainant’s evidence was truthful but there was a qualitative difference in her evidence on Count 4 compared with the evidence in relation to Counts 1 to 3.

38. [88]

    I reject the applicant’s submission that the complainant’s evidence was “directly contradicted” by the evidence of her mother. The applicant’s submission that the complainant’s evidence in relation to Count 4 is unreliable is predicated, in part, on an assumption that the evidence of the complainant’s mother is to be preferred. I do not accept that assumption. The trial judge’s assessment of the complainant’s mother’s evidence at [390] was that “I was not overly impressed by [the complainant’s mother] as a reliable witness. Although she appeared to me to be doing her best to give an honest account, I had the firm impression that the difficulties of her life had impeded her memory”. That assessment by the trial judge is strongly supported by the evidence. The complainant’s mother was, on her own admission, not good with dates. Her explanation as to why she was certain that the applicant was not at the second address in December 2018 or January 2019 was “cause he wasn’t around for any of the kids’ Christmases or birthdays in 2018, and 2019 he also was not around”. This did not preclude the possibility that the applicant may have been present for a matter of days between the children’s birthdays, which were months apart.

39. [89]

    The mother’s evidence that the complainant was excited on her first day of Year 3 in 2019 because they had just moved into a new house is inconsistent with her evidence that they had moved into that address in March 2018. Her evidence that the applicant was present on the complainant’s first day of Year 2, in early 2018, gives rise to the possibility that the complainant was mistaken about which school year she was going into when Count 4 occurred. For present purposes, the important point is that the complainant’s mother’s evidence that the applicant was present on the complainant’s first day of Year 2 in early 2018 is irreconcilable with the assertion elsewhere in her evidence that the first time she saw the applicant since 2017 was at the Monster Truck show on 20 April 2018.

40. [90]

    I have concluded that when the complainant’s mother’s evidence is viewed as a whole, she had an imperfect recollection of when the applicant had spent time in the home she shared with her children. So much is understandable given the nature of the relationship, and the applicant’s habit, over a period of years, of coming and going from the various premises. To the extent that there is an inconsistency between the evidence of the complainant in relation to Count 4 and that of her mother, I do not prefer the evidence of the complainant’s mother.

41. [91]

    I reject the applicant’s submission that the deficiency identified by the trial judge in relation to the complainant’s evidence of Count 4 adversely impacts the reliability of the complainant’s account of the circumstances of Counts 1 to 3. The complainant retained a more detailed memory of those circumstances. As a matter of ordinary human experience, there are many reasons as to why that might be so. Those reasons include that they were the first times the complainant had been assaulted, the unusual circumstances of the events the subject of Counts 1 to 3 (being woken in the middle of the night and taken to the backyard) and the similarities between the two events in the 2016 Easter break. Whatever the reason, it does not follow that an assessment of the reliability of the complainant’s memory of those occasions is affected by her memory of a different occasion separated by years.

42. [92]

    The applicant’s submission appears to rest on an assumption that it is more likely that the complainant would retain a more reliable memory of a later event because that event is closer in time to the first disclosure. This is shown in the asserted inconsistencies set out at [58**](2)-(3) above. I reject that submission. Human memory is not necessarily chronologically clearer in relation to more recent events. The fact that a witness does not remember an event or has a less complete memory of it does not mean that their memory of such other events as they do remember is necessarily unreliable.

43. [93]

    Turning to the other matters raised by the applicant and summarised above at [58**](4)-(7) and (9), it is evident that the complainant in her first interview transposed features of what took place during the second incident on the first and vice versa. The complainant initially said in the first interview that the first incident included the threat uttered by the applicant and the assault on the trampoline. The following day, the complainant corrected herself and said that those events took place on the second occasion, not the first. Similarly, in the first interview the complainant said that the interruption of the noise over the fence occurred during the second incident whereas the following day the complainant corrected herself and said that that happened on the first occasion.

44. [94]

    Considering those matters together, I have concluded that in the first interview, the complainant mistakenly transposed some features of the two incidents. That the complainant might do so does not cause me to doubt her credibility or reliability. There were similarities between the two incidents, both in terms of when and where they took place and in the nature of the indecent assaults perpetrated by the applicant. At the time of the first interview, the complainant was eight years old. The complainant had not gone into the same level of detail in her earlier disclosure to Ms Austin and was, in effect, being asked for the first time to provide a detailed account of the incidents. The first interview took place at the complainant’s school. The trial judge noted at [362] that loud noises could be heard “right at the time she was first asked to give intimate details of the first alleged event”.

45. [95]

    Having been prompted on 14 August 2019 to consider the sequence of events in detail for the first time, the complainant returned the following day and provided a clear account of what took place. In doing so, she corrected those features that she had mistakenly transposed the day before. Thereafter, the complainant’s account as to what took place between the two incidents was clear and consistent. The description of the first and second occasions that the complainant provided in her second interview is consistent with her evidence in chief and cross-examination.

46. [96]

    Dealing with two of those features (when the assault on the trampoline and the threat occurred) the trial judge observed that the complainant’s “initial misremembering and then correction did not adversely affect my overall assessment of [her] credibility. To the contrary, the way witnesses remember traumatic events such as these, and misremember the order of events is not uncommon and did not strike me as an indication that the complainant was fabricating the allegations.”.

47. [97]

    Having independently viewed the evidence, I find that the description of the evidence as being “an initial misremembering and then correction” is correct. This initial misremembering and then correction does not cause me to doubt the reliability of the complainant’s evidence.

48. [98]

    In relation to the differing versions of the complainant and Mr Picton as to whether they spoke, the fact that the complainant did not recall speaking to Mr Picton about what the applicant had done has already been dealt with. If the evidence of Mr Picton is accepted, Ms Austin made a similar mistake to the complainant. The fact that neither Mr Picton nor Ms Austin had a memory of the conversation suggests that it was brief. The more notable conversation, which each remembered, was the first disclosure that took place on 3 July 2019. I have concluded that the matters relied upon by the applicant are not significant inconsistencies as submitted by the applicant. To the contrary, I find that the evidence of Ms Austin and Mr Picton as to the complaints made to them by the complainant are consistent in most critical respects with the guilty verdicts in counts 1 to 3.

49. [99]

    In relation to the applicant’s submission that there was an inconsistency between the notes of the investigators and the second interview as to whether the complainant was placed by the applicant onto her back or on top of him, the complainant did not recall having told investigators during the first interview that on the second occasion she was, at one point, on top of the applicant with him holding her down. That the applicant did not remember having said that is unremarkable given that the interview took place almost three years before the trial and the representation was said to have been made (by others) in the unrecorded portion of the interview. I find that the difference in the description did not mean that the complainant was being untruthful, nor that what she forgot to mention did not occur, nor that her account of the events was not reliable. I conclude that the fact that the complainant may have mistakenly stated in the first interview that she was, at one point, on top of the applicant does not undermine the reliability of her account.

50. [100]

    In AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136, a case involving allegations of child sexual assault, Beech-Jones CJ at CL, observed:

51. [101]

    His Honour’s observation applies to the present case. The trial in this matter was conducted under difficult circumstances, during one of the COVID-19 lockdowns, with each of the witnesses appearing via AVL. As the trial judge noted in the verdict judgment, there were technological difficulties throughout the trial, in particular during the complainant’s evidence.

52. [102]

    It is plain that her Honour’s detailed consideration of the evidence was aided by the considerable advantage that her Honour had over this Court in observing each of the witnesses give evidence: see [360]-[373] of the verdict judgment.

53. [103]

    The trial judge described the complainant as an impressive witness whose answers were clear, direct and cogent. She answered questions carefully and confidently and impressed as a witness who was doing her best to tell the truth. Although the complainant was confused, scared and upset by the applicant’s conduct, the trial judge recorded that the complainant did not exhibit any animosity towards him over the course of her evidence.

54. [104]

    Having regard to the whole of the evidence I reject the submission that the complainant’s evidence was “riddled with inconsistency and uncertainty”. I find that the complainant’s evidence was consistent concerning the critical features of the offending conduct. The level of consistency in her accounts and the detail she provided both as to what happened and how she felt are, given the complainant’s young age, all indicators of the cogency and reliability of her account.

55. [105]

    None of the matters raised by the applicant individually or collectively cause me to doubt the complainant’s reliability or credibility. This is a case where, even if there was a doubt, the trial judge’s advantage in seeing and hearing the evidence would have been dispositive.

56. [106]

    The verdicts of guilty in respect of Counts 1 to 3 are not unreasonable. This ground of appeal and the applicant’s appeal against conviction should be dismissed.

Appeal against sentence

1. [107]

   The applicant also sought leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act.

2. [108]

   The applicant fell to be sentenced in relation to three counts of indecent assault of a child under 16 years contrary to s 61M(2) of the Crimes Act (as the provision stood at the relevant time). The offences carried a maximum penalty of 10 years imprisonment. A standard non-parole period of 8 years applied.

3. [109]

   On 13 July 2022, the applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months commencing on 10 August 2020. The applicant is first eligible for release to parole on 9 February 2025. The aggregate head sentence expires on 9 February 2028.

4. [110]

   The sentencing judge specified the following indicative sentences:

   1. (1)

      Count 1: Imprisonment for 5 years with a non-parole period of 3 years.

   2. (2)

      Count 2: Imprisonment for 5 years with a non-parole period of 3 years.

   3. (3)

      Count 3: Imprisonment for 6 years with a non-parole period of 3 years and 9 months.

5. [111]

   The applicant does not challenge the findings of fact made by the trial judge which I will record here.

6. [112]

   During the Easter school holidays in April 2016, the applicant entered the complainant’s room when everyone else in the house was asleep. He woke her and carried her into the backyard where he lay her on a sheet that was already there. The applicant removed the complainant’s clothes and pulled her shirt up to near her shoulders. He got on top of her, his body touching hers, and rubbed his penis on her body, on the side of her belly and leg. He also lifted up the complainant’s shirt and put his penis underneath it. The complainant tried unsuccessfully to push the applicant off. He told her to “stop” as she attempted to do so. When the applicant heard a noise from over the fence and went to investigate, the complainant took the opportunity to run inside. She found it difficult to sleep but did not see him again that night. This incident was the subject of Count 1.

7. [113]

   About a week later, the applicant again woke the complainant and carried her into the backyard where he placed her on a sheet that was already there. He got on top of her and “started doing the stuff to [her]”. The applicant kissed the complainant’s face and neck, and his penis touched her body, near her vagina. This incident was the subject of Count 2.

8. [114]

   The applicant picked up the complainant and carried her to the trampoline. He placed her inside the trampoline, against the netting at the furthest point from the opening. She tried to get out but could not. As the complainant stood against the netting, the applicant got on top of her (standing over her) so that his belly and legs were against her belly and legs and the front of his body was pushed against hers. The applicant rubbed his penis against her belly and leg and kissed her on the neck and face. His penis went inside of her underpants and touched the outside of her vagina. The applicant held her wrists as he did so. This incident was the subject of Count 3.

9. [115]

   The complainant was five years old at the time of both incidents. She felt scared. She first disclosed the incidents when she was in Year 3 (in 2019) after learning about sexual abuse in class and said that she had not told anyone before that because, “I didn’t know if it was the right thing to do or not”. When asked how she felt about the applicant after the second occasion of offending, the complainant said she felt “confused”, adding “[b]ecause I was only little and I didn’t know if, like – if he was doing the right thing”.

10. [116]

    The applicant was born on 11 August 1983. He was aged 32 years old when he committed the offences and was 38 years old at the time of sentence. The applicant had an extensive criminal history dating back to 1999 when he was 15 years old. He had a significant number of prior convictions both as a juvenile and as an adult. As a juvenile, he was sentenced for indecent assault on a child under 16 years to 18 months’ probation and required to attend a sex offenders’ program.

11. [117]

    As an adult, the applicant had a significant number of convictions for domestic violence offences for which he had, at times, served periods of imprisonment. He also had what the trial judge described as an “extensive history of charges relating to contravening apprehended domestic violence orders, possessing a knife in a public place, various driving offences, and failure to appear with bail acknowledgments”. The applicant’s history of prior convictions was taken into account but did not aggravate the offending.

12. [118]

    The applicant was born in Western Sydney, growing up there and in Dubbo. He was raised by his mother, who used methylamphetamines. The applicant described his childhood as “okay” but said that he was exposed to violence within his mother’s relationships and he and his siblings were physically abused by two of her partners.

13. [119]

    The applicant attended school until the start of Year 8. He was in special classes in primary school and attended a special education school for children with both intellectual and emotional disabilities in Years 7 and 8. He had behavioural problems at school and frequently fought with students and abused teachers. He was diagnosed with attention-deficit hyperactivity disorder (ADHD) when he was 12 years old and took medication until he left school. He had had limited employment and, at the age of 16, began receiving a disability pension due to his intellectual disability.

14. [120]

    The applicant is illiterate and can read and write a few words and not whole sentences. Testing by the neuropsychologist, Mr Gorham, revealed that his overall intellectual functioning was in the borderline range which equates to the bottom 3% of the population. He demonstrated impairment in basic attention, mental control and efficiency, working memory, speed of information processing and areas of higher-level thinking. His cognitive and intellectual limitations were accompanied by marked impairments in adaptive functioning that were described as having been evident throughout his life. Mr Gorham opined, and the trial judge accepted, that the applicant’s intellectual development disability was a contributing factor to his offending behaviour.

15. [121]

    The applicant began drinking alcohol at about 12 years of age. He did not do so regularly as alcohol contributed to his anger issues. He first tried cannabis when he was 12 years old and had used it daily since he was about 15. He began using methylamphetamine when he was 16 years old and used it three times a week from then until his incarceration for the current offending. The applicant reported that he was using illicit drugs everyday around the time of the offending including approximately “two points” of methylamphetamine and one gram of cannabis. He denied that there was a link between his illicit substance abuse and the offences but acknowledged that his substance use is a problem.

16. [122]

    The applicant told Mr Gorham that he experienced sexual abuse three or four times when he was about 13 years old whilst in juvenile detention. The abuse was in the nature of indecent assaults perpetrated by guards.

17. [123]

    The applicant was assessed by Mr Gorham as presenting a “well-above average risk” of sexual re-offending. Mr Gorham opined that the applicant’s history of sexual abuse “likely shaped his sexual development and his attitude about what is normal versus aberrant sexual behaviour”.

18. [124]

    An affidavit of the applicant’s solicitor set out the applicant’s movements in gaol, the impact of COVID-19 restrictions and the applicant’s future plans, being to live with his mother and participate in rehabilitation programs.

19. [125]

    The reference from the applicant’s sister stated that she had a close bond with him, continued to support him, and that he had expressed to her “his devastation and heartache of his charges and not being able to see or speak with his own children who he loves and cares for tremendously”.

20. [126]

    The primary judge assessed each of the offences as approaching the mid-range of objective seriousness for offences of their kind and observed that Counts 2 and 3 “are additionally objectively more serious” given the threats made by the applicant which were designed to silence the complainant. The trial judge’s assessment of objective seriousness, which is not challenged by the applicant, was informed by the following matters:

    1. (1)

       The offences occurred in the complainant’s home where she was entitled to feel safe from harm and predation. She was vulnerable and sleeping in her bed when the applicant woke her.

    2. (2)

       There was some limited premeditation evidenced by the applicant’s laying down of a sheet in a secluded area of the backyard. He did so to prevent detection. Her Honour found that notwithstanding some premeditation, the offences were opportunistic and not planned or organised in the sense contemplated by s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    3. (3)

       The nature of the offending conduct which included contact with the complainant’s skin by the applicant’s penis and other parts of his body. Her Honour considered the conduct that comprised each of the three offences separately.

    4. (4)

       In respect of Count 1, the applicant knew (from her efforts to push him off her) that the complainant was distressed and actively wished him to stop, yet he continued to offend with a callous disregard for her.

    5. (5)

       The complainant was just 5 years old (noting that the age range of the offence extends to 16).

    6. (6)

       The position of trust occupied by the applicant and his age, noting that the 27 year age differential between them was substantial. The trial judge made clear that she was careful not to double count “under authority” which her Honour described as an “element”.

    7. (7)

       That the applicant committed the offences for sexual gratification.

    8. (8)

       That the complainant was harmed. She was scared, confused and plagued by “bad thoughts” afterwards.

21. [127]

    Other relevant findings of the trial judge on sentence include the following:

    1. (1)

       The applicant continued to maintain that he was not guilty of the offences. There was accordingly no evidence that he had demonstrated any remorse.

    2. (2)

       Noting that Mr Gorham had assessed the applicant as falling within the “well above average” risk category, her Honour was not satisfied that the applicant was unlikely to re-offend.

    3. (3)

       The applicant’s prospects of rehabilitation were guarded at best (noting the opinion of Mr Gorham that they would be significantly enhanced with continuing treatment).

    4. (4)

       Section 21A(5AA) of the Crimes (Sentencing Procedure) Act limits the manner in which self-induced intoxication can be used in sentencing by providing that it cannot be relied upon as a mitigating factor. Her Honour took into account the age at which the applicant’s drug use commenced.

    5. (5)

       The trial judge took into account the applicant’s reported sexual abuse as a child noting that, while it could not be regarded as an excuse, it might aid in explaining why he committed the offences.

22. [128]

    The trial judge accepted that there was a relevant nexus between the applicant’s limited intellectual functioning and the offending. Her Honour found that the applicant’s moral culpability and the need for denunciation were reduced, and that the applicant is “not a suitable vehicle for a full expression of general deterrence”. Her Honour observed that general deterrence still had a role to play in the determination of an appropriate sentence.

23. [129]

    The trial judge also found that the applicant displayed a number of psychological vulnerabilities in the context of a highly dysfunctional and traumatic childhood such that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were relevant.

24. [130]

    The trial judge considered totality, noting that in light of the seriousness of the offences there “should be more than merely minor accumulation, particularly as between Count 1 and Counts 2 and 3 (which occurred at the same time and which are largely concurrent)”. Her Honour accepted that custody would be more onerous for the applicant for reasons including but not limited to the COVID-19 pandemic. Her Honour found special circumstances having regard to the applicant’s hardship in custody, his need for rehabilitation in the community and his limited intellectual capacity, noting that a longer period on parole would facilitate greater and longer supervision with the aim of reducing the prospects of recidivism over the long term and increasing the support for the applicant upon his release. The non-parole period represents 60 percent of the aggregate head sentence.

25. [131]

    The applicant referred to the general principles concerning intervention by this Court on the ground that a sentence is manifestly excessive as stated in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. He submitted that in this case the exercise of the discretion by her Honour miscarried by the imposition of an “unreasonable and plainly unjust” sentence, referring to House v The King (1936) 55 CLR 499; [1936] HCA 40.

26. [132]

    The applicant referred to the comments of this Court in MLP v R [2014] NSWCCA 183 at [44], to the effect that sentencing courts should be careful when asked to utilise statistics and comparative cases. He submitted that, while recognising such limitations, there is some guidance, both as to the assessment of objective gravity and the appropriateness of the sentence imposed, in an examination of such material.

27. [133]

    The applicant relied on a table summarising 16 comparative cases contained in an abbreviated version of a table compiled by the Public Defenders Chambers. He submitted that these summaries demonstrate the varied objective conduct captured by the present offence and the varied personal circumstances of the respective offenders.

28. [134]

    The applicant acknowledged the various distinguishing factors between his case and those contained in the table. Nevertheless, it was submitted that the applicant’s mild intellectual disability, “found to be causally connected to his offending, is particularly significant when distinguishing the applicant from other offenders”. The sentencing judge found that the applicant’s moral culpability and the call for measures of deterrence were reduced, calling for a significant degree of leniency. The applicant submitted that, given the primary judge’s findings that the offending approached the mid-range, the aggregate sentence and indicative sentences are manifestly excessive.

29. [135]

    The Crown submitted that the applicant’s reliance on the table of comparative cases is misplaced, as there are various important differences between aspects of that case and the present case. As such, it submitted that those cases are of limited utility and that they do not demonstrate that the sentence was manifestly excessive.

30. [136]

    The Crown submitted that even though the applicant, by virtue of his mental condition, should enjoy the benefit of a finding that his moral culpability is reduced, that this must be considered in context. It noted the applicant’s ability to appreciate that what he was doing was wrong, his lack of remorse, his likelihood or re-offending, his “guarded” prospects of rehabilitation and his lack of prior good character.

31. [137]

    The Crown submitted that no error was shown in the trial judge’s finding that only minor accumulation was required between Count 1 and Counts 2 and 3, as her Honour relevantly took into account the applicant’s special circumstances. It further submitted that the applicant has not demonstrated that the aggregate sentence of imprisonment imposed by the primary judge was outside the exercise of her Honour’s broad discretion.

32. [138]

    The Court of Criminal Appeal summarised the principles relevant to a finding of manifest excess in Hughes v R [2018] NSWCCA 2 at [86], as follows:

33. [139]

    It is equally well established that the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether that aggregate sentence reflects the total criminality. The indicative sentences are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]. The fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive. The fundamental question is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences: McTague v R [2020] NSWCCA 83 at [47].

34. [140]

    The critical issue identified by Mr Fraser for the applicant on the sentence appeal was the applicant’s intellectual disability. The applicant attended a special education school for children with intellectual and emotional disabilities, and he left school at the start of year 8. The applicant is functionally illiterate and can read and write only a few words and not whole sentences. The applicant has received a disability pension based on his intellectual disability since age 16.

35. [141]

    Mr Gorham, a psychologist, prepared a report for the Aboriginal Legal Service dated 4 March 2022, which was before the sentencing judge. Mr Gorham conducted various psychometric tests and other neuropsychological assessments on the applicant. Mr Gorham observed that the applicant had difficulty understanding various questions and instructions, exhibited memory difficulties, and used “somewhat childlike” speech and an “unsophisticated vocabulary”.

36. [142]

    The applicant was assessed as performing in the “extremely low” range on information processing tasks, underlying verbal intellectual skills, lexical fluency and overall level of adaptive behaviour functioning. He was assessed in the “borderline” range for general intellectual functioning, initial acquisition of unstructured verbal information, inhibition, verbal abstract reasoning, social functioning and practical functioning. He was assessed in the “low average” range for non-verbal/visual intellectual skills, semantic fluency and non-verbal abstract reasoning. His overall acquisition of unstructured verbal information and delayed recall and recognition were assessed within “average” ranges.

37. [143]

    Mr Gorham made findings based on his assessment of the applicant that:

    1. (1)

       his overall level of intellectual functioning is in the borderline range (that is, in the bottom 3% of the population);

    2. (2)

       he demonstrates impairments in basic attention, mental control and efficiency, working memory, speed of information processing and areas of higher-level thinking;

    3. (3)

       he demonstrates marked impairments in adaptive functioning (that is, how well he meets community standards of personal independence and social responsibility compared to others of a similar age);

    4. (4)

       the evidence supports a diagnosis of the neurodevelopment disorder of Intellectual Disability - Mild as found in the DSM-V;

    5. (5)

       his learning and memory functioning is within normal limits, but his learning of new information requires support through repetition of information; and

    6. (6)

       that his intellectual and cognitive functioning is primarily attributable to his developmental disability, with possible exacerbation from long-term substance abuse.

38. [144]

    In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court held:

39. [145]

    In R v Guode (2020) 267 CLR 141; [2020] HCA 8, Kiefel CJ, Gageler and Nettle JJ returned to the topic of the relevance of an impairment of mental functioning to sentence and said:

40. [146]

    In DS v The Queen (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [91]-[96], Beech-Jones CJ at CL provided significant guidance on the question of the relationship between “objective seriousness” and “moral culpability” for the purposes of sentencing which I have closely considered.

41. [147]

    It will be recalled that the following indicative sentences were identified by the sentencing judge as follows:

    1. (1)

       Count 1: Imprisonment for 5 years with a non-parole period of 3 years.

    2. (2)

       Count 2: Imprisonment for 5 years with a non-parole period of 3 years.

    3. (3)

       Count 3: Imprisonment for 6 years with a non-parole period of 3 years and 9 months.

42. [148]

    I have concluded that the applicant’s intellectual disability was a factor not sufficiently reflected in the indicative sentences identified. Although the indicative sentences are not themselves amenable to appeal, they have led me to conclude that error is established in relation to the aggregate sentence. That is, I am satisfied that the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences.

43. [149]

    The applicant must be resentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The relevant nexus between the applicant’s limited intellectual functioning and the offending should be reflected in that sentence. I find that the applicant’s moral culpability and the need for denunciation are reduced and that the applicant is not a suitable vehicle for a full expression of general deterrence. The applicant’s intellectual disability, which was causally connected to his offending, is particularly significant. The applicant’s moral culpability and the need for general and specific deterrence were reduced. The applicant is entitled to a significant degree of leniency.

44. [150]

    It is important in resentencing that the applicant displays a number of psychological vulnerabilities in the context of a highly dysfunctional and traumatic childhood such that the principles in Bugmy are relevant and must be taken into account.

45. [151]

    It of course remains true that the applicant, having been convicted after trial, has not demonstrated remorse for his offending, was found to present a “well above average” risk of re-offending and has only guarded prospects of rehabilitation. The applicant also has an extensive criminal history which, while it did not amount to an aggravating factor, disentitles him to leniency that he might otherwise have received and demonstrates that he is not a person of prior good character for whom the offending was out of character.

46. [152]

    The offences committed by the applicant in the present case were serious. He breached the trust reposed in him as, in effect, the stepfather of the complainant, offending against her in her home at night while the other residents in the house were asleep. It was necessary for some element of accumulation “to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending”: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].

47. [153]

    Taking all of these matters into account, I would re-sentence the applicant to an aggregate sentence of 6 years and 6 months imprisonment with an aggregate non-parole period of 4 years imprisonment. This involves a total period of imprisonment reflecting an appropriate degree of accumulation between Count 1 and Counts 2 and 3 (where the conduct underlying each of the three counts occurred at the same time, meaning it was appropriate that the sentences be essentially concurrent).

48. [154]

    Special circumstances should be found having regard to the applicant’s hardship in custody, his need for rehabilitation in the community and his limited intellectual capacity. A longer period on parole will facilitate greater and longer supervision with the aim of reducing the prospects of recidivism over the long term and increasing the support for the applicant upon his release. The non-parole period I would impose represents essentially the same as the 60 percent of the aggregate head sentence imposed by the sentencing judge.

49. [155]

    The following indicative sentences are identified:

    1. (1)

       Count 1: Imprisonment for 4 years with a non-parole period of 2 years and 6 months.

    2. (2)

       Count 2: Imprisonment for 4 years with a non-parole period of 2 years and 6 months.

    3. (3)

       Count 3: Imprisonment for 5 years with a non-parole period of 3 years and 6 months.

Conclusion and proposed orders

1. [156]

   I propose the following orders:

   1. (1)

      Leave to appeal against conviction granted.

   2. (2)

      Appeal against conviction dismissed.

   3. (3)

      Leave to appeal against sentence granted.

   4. (4)

      Appeal against sentence allowed. The sentence imposed on 13 July 2022 is quashed and in lieu thereof the following sentence is imposed:

   5. (5)

      The offender is first eligible for parole on 9 August 2024.

2. [157]

   FAGAN J: I have had the advantage of reading Payne JA’s judgment in draft.

3. [158]

   For the purpose of determining the application for leave to appeal against conviction I have reviewed the evidence at trial in its entirety and I have considered the applicant’s arguments as to why it is said the learned trial judge ought to have had a reasonable doubt concerning his guilt on Counts 1 to 3. My independent evaluation of the evidence has not given rise to any such doubt on my part. With respect to those counts I consider it was open to the learned judge to resolve, as she did, the discrepancies in the complainant’s account and the conflicts between some parts of her evidence and the recollections of other witnesses, particularly her mother. I am able to resolve those discrepancies and conflicts in much the same way as the learned trial judge did and as Payne JA has articulated.

4. [159]

   I concur with Payne JA’s reasoning as to the strength and acceptability of the complainant’s account and as to the rational basis upon which her Honour was left with a reasonable doubt concerning Count 4 while finding that Counts 1 to 3 were proved beyond reasonable doubt. I agree leave to appeal against conviction should be granted but that the appeal should be dismissed.

5. [160]

   I also agree with Payne JA’s reasons and proposed orders concerning the sentence appeal and have nothing to add on that part of the application to this Court.

6. [161]

   SWEENEY J: I have had the considerable advantage of reading Payne JA’s judgment.

7. [162]

   I have also made my own independent assessment of the whole of the evidence in the trial, and am satisfied it was sufficient in nature and quality to eliminate any reasonable doubt about the guilt of the applicant.

8. [163]

   I agree with the orders proposed by Payne JA and his Honour’s reasons in respect of the appeal against the convictions.

9. [164]

   I also agree with his Honour’s proposed orders in respect of the appeal against sentence and his Honour’s reasons for those orders.