TC v R

1. [1]

   PAYNE JA: The applicant, who I will refer to as TC to protect the anonymity of the child complainant, was convicted by a jury following a trial in the District Court at Sydney which occurred between 17 – 26 June 2019. The applicant was represented by counsel at the trial but was self-represented on this appeal.

2. [2]

   The complainant, who I will refer to as OB, is subject to statutory non-publication orders under s 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) as are the names of the applicant’s other children.

3. [3]

   TC was convicted of one offence under s 61M(2) of the Crimes Act 1900 (NSW) (‘Crimes Act’) of indecently assaulting a child under 16. The child, OB, was aged approximately 12 at the time. The particulars of the charge were that TC was masturbating while touching the victim’s face as she lay on his lap. An indicative sentence of 3 years with a non-parole period of 2 years was stated. The second charge, also pursuant to s 61M(2) of the Crimes Act, related to TC touching OB’s breast. An indicative sentence of 12 months with a non-parole period of 8 months was stated. The applicant was sentenced to an aggregate sentence of 3 years and 9 months. A 2-year non-parole period was fixed. The applicant was released to parole on 9 June 2022 and his entire sentence, including the period of parole, expired on 9 September 2023.

4. [4]

   None of the applicant’s 11 grounds of appeal raise a question of law alone, and, accordingly, leave is required: s 5(1) Criminal Appeal Act 1912 (NSW). In addition, the applicant requires an extension of time. The notice of appeal was filed 4 yrs and 8 months after his convictions, 2 years and 21 months after the applicant’s release on parole, and 10 months after his sentence expired. I will return to the applicant’s explanation for this egregious delay later in these reasons.

Relevant facts

1. [5]

   The complainant was born in Poland and was 5 when her mother met TC. The applicant and the complainant’s mother, who I will describe as EI, married in 2010, and later moved to Australia. The applicant and EI had two further children. Between 2013 and 2017 the family lived together in Merrylands.

2. [6]

   The facts relevant to each count in the indictment were as follows:

   1. (1)

      Count 1 – (guilty). In 2015, the complainant started high school and was issued with a school laptop. One day in 2015, the complainant was up late watching a YouTube video about hypnotism on her laptop. The applicant was awake but everyone else in the house was in bed. The applicant sat next to her and said that he would perform a hypnotism trick on her. He told her to lay down on the couch, she put her head and shoulders on his lap and closed her eyes. She felt the applicant touch her face with one of his hands. The applicant masturbated his penis to the point of ejaculation. After touching her face for a short time, the applicant told her to get up and get some tissues. The complainant sat up and looked to her left and saw the applicant had his penis out and that there was liquid coming from the penis. She went and got some tissues from the kitchen and gave them to him. The complainant did not tell anyone at the time about what occurred.

   2. (2)

      Count 3 – (guilty). In 2015 when the complainant was 11 or 12 she and the applicant were playing a game in the hallway of the family home in Merrylands. The applicant was showing the complainant a “body trick”. In this game, the complainant would stand on one side of the hallway and reach across to the other side by stretching out her arm. The applicant would pinch her ear, after which she could no longer reach the other side of the wall. When they were playing this game, the applicant pinched the complainant on the breast.

   3. (3)

      Count 4 – (not guilty). The complainant gave evidence that in 2017 she was in her mother’s bedroom, looking for hairclips. The applicant came in and he brushed his hand across her bottom. At first, the complainant thought it was an accident, but then the applicant tried to hug her from the side and placed his hand on her bottom. That lasted for a couple of seconds. The complainant did not do anything, and the applicant stopped touching her, and then she left.

3. [7]

   The Crown case at trial consisted, broadly speaking, of the following evidence:

   1. (1)

      The evidence of OB contained in a “JIRT” interview, played as part of her evidence in chief, and her pre-recorded evidence, including additional evidence in chief, cross-examination and re-examination.

   2. (2)

      OB’s evidence included evidence in relation to each of the counts as well as context evidence. The context evidence consisted of other (uncharged) acts with sexual overtones and a common assault offence the applicant had pleaded guilty to and that had been separately dealt with in the Local Court. The context evidence comprised:

4. [8]

   There was evidence of complaint made by OB to her best friend, CS, in 2017. In year 9, OB reported to CS that TC had started “touching her in weird places” and before she had started [high] school, he had put his hand down her shirt and told her that “this is how people will treat you at school so you’d better get used to it”. One day OB was late to school and said it was because the applicant had slapped her. OB asked CS not to tell anyone.

5. [9]

   There was evidence of complaint made to OB’s mother in 2017. OB’s mother, EI, gave evidence that the complaint occurred in the following circumstances:

6. [10]

   Documentary evidence was tendered in the Crown case as follows:

7. [11]

   The police interview with TC (the ‘ERISP’) was tendered. Relevantly in the ERISP the applicant:

8. [12]

   TC gave evidence at the trial, relevantly:

9. [13]

   Documentary evidence was tendered on behalf of TC and included:

10. [14]

    Following the close of evidence and closing addresses, the trial judge’s elements document and draft summing up were provided to the parties. After discussion with the parties, the directions to be given in the summing up were agreed by the applicant’s trial counsel and the Crown prosecutor (subject to the argument about consciousness of guilt, considered below).

11. [15]

    As noted above, on 26 June 2019, the jury returned verdicts of guilty to counts 1 and 3, and not guilty to count 4. Count 2 was an alternative to count 1, and accordingly no verdict was taken in respect of that count.

Grounds of appeal - conviction

1. [16]

   The applicant’s 11 grounds of appeal were as follows:

2. [17]

   The applicant read affidavits dated 11 October 2024, 5 November 2024 and 3 July 2025 (incorrectly identified on the cover page as 5 June 2024), limited to the issues of extension of time and to resentence should the Court find it necessary to do so.

3. [18]

   In addition, the applicant tendered proof of the award of a graduate certificate in project management by Sydney University in 2025, certificate IV in Entrepreneurship and New Business from Sydney Business in 2023 and two certificates of outdoor leadership from Kiama and Shoalhaven Community Colleges dated 2025, all addressed to resentence should the Court find it necessary to do so.

4. [19]

   I have taken all of that material into account. Despite the egregious delay in bringing this appeal, and the relatively unconvincing nature of the explanation provided for that delay in a 55 page affidavit of TC dated 5 June 2024 (properly dated 3 July 2025), I would not refuse leave to this self-represented applicant on the basis of delay alone.

5. [20]

   The applicant filed over 550 pages of written submissions in chief in support of his 11 grounds on the conviction appeal. In addition, the applicant relied upon late filed submissions addressing grounds 11 and 6, written submissions in reply and a document entitled “oral presentation by applicant”. The written submissions are best characterised as lengthy, discursive and repetitive. I will address the substance of the applicant’s complaints rather than dwell on the minutiae and repetitive detail which comprised much of the 550 pages.

6. [21]

   Helpfully, in his submissions in reply, the applicant sought to deal with the 11 grounds of appeal thematically. I will adopt the applicant’s suggested themes which were as follows:

   1. (1)

      Credibility of the complainant – Grounds 1, 2 and 8;

   2. (2)

      Credibility of the applicant – Grounds 5 and 6;

   3. (3)

      Alleged missteps and lack of fairness by the trial judge – Grounds 4, 7 and 11;

   4. (4)

      Alleged missteps and lack of fairness by the Crown – Grounds 9 and 10.

7. [22]

   Ground 3 was not abandoned but was not addressed by the applicant in these reply submissions. I will consider the arguments on Ground 3 advanced in writing in any event.

8. [23]

   The principles upon which this court is obliged to consider allegations of an unreasonable verdict the subject of Grounds 1 and 2 are clear: M v The Queen (1994); [1994] HCA 63 at 493; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [8]; The King v ZT [2025] HCA 9; 422 ALR 165 at [7].

9. [24]

   In the present case, I do not agree with the applicant’s submission that there is any doubt about the verdict of the jury.

10. [25]

    On its face, OB’s description of the incident the subject of count 1 is compelling. She gave clear evidence about her watching hypnosis videos on her laptop. The applicant said he would play “a[n] hypnosis trick on her” and invited her to put her head on his lap and close her eyes. He touched her face. He told her to get up, saying “quickly go get tissues”. When OB opened her eyes as she related it in her recorded interview she became visibly upset and did not want to say what she saw. She returned to the topic later in the same interview and said that, rather than say it, “yeah I’ll just write”. She then wrote on a piece of paper, that paper marked Exhibit A: “he had his penis out and I didn’t know what he was doing I thought he was peeing”.

11. [26]

    OB’s observational skills are underlined in the detail she repeats at least 6 times in her interview when looking left and attempting to describe TC’s conduct. It is plain that OB did not know at that time what TC was doing. The explanation from a child that she thought her stepfather was peeing is convincing. The child’s candid acceptance of her limited understanding of what she was witnessing is a cogent demonstration that she had not been coached or guided in her complaint, contrary to the applicant’s assertion in writing. In addition, the evidence of OB in relation to count 1 was supported by evidence of a complaint to OB’s mother.

12. [27]

    I have concluded that OB’s evidence in relation to count 1 was both credible and reliable. It was plainly open to the jury to accept OB’s account of the events the subject of count 1.

13. [28]

    It was equally open to the jury to disbelieve TC’s version of events. When first asked about the incident during the ERISP, TC said he “did nothing of the sort. No comment”. Later in the interview when he was asked: “… in and around 2015 … [OB] was watching videos on YouTube and you told her you would hypnotise her” the applicant responded, “I don’t have any comments, I don’t remember anything”. In his evidence at trial, TC denied knowing whether OB had ever watched any hypnotising videos. TC accepted that OB would put her head in his lap a few times when she was in Year 7 at school. The applicant accepted that he did recall an incident where he asked OB to get tissues for him: “I was watching a moving [and OB] was lying down beside me”. He later accepted her head was in his lap. At the time he said he was eating a Gulab Jamun, a golf ball sized cheese and corn ball which he had in a bowl. He asserted that the dessert slipped and fell on his shorts and that is why he needed the tissues. Despite the fact that OB’s head was in his lap TC did not suggest any of the spilled dessert fell on OB. TC denied that his penis was exposed or that he ejaculated whilst on the couch with OB. Instead, he gave evidence that it was a misunderstanding. I have concluded that TC’s account is implausible. It is unsurprising that the jury would reject the central premise of his evidence that the incident was a misunderstanding.

14. [29]

    At the conclusion of TC’s cross-examination, it was essentially common ground that:

    1. (1)

       OB did stay up late and watch videos with TC on the couch when everyone had gone to bed;

    2. (2)

       OB did lie with her head on TC’s lap;

    3. (3)

       TC did ask OB to get tissues to clean up a sticky mess he had created after she had her head on her lap – at a time very close to the offending conduct OB described.

15. [30]

    TC’s explanation about spilling a Gulab Jamun on his shorts at a time OB’s head was in his lap and that is why he needed the tissues was unconvincing and it was plainly open to the jury to reject it.

16. [31]

    The jury conscientiously reviewed the transcript and watched OB’s police interview and recorded evidence. It is clear the jury gave careful consideration to all of the evidence, having seen and heard each witness give evidence orally, and paid particular attention to OB’s credibility and reliability.

17. [32]

    I do not agree with the applicant’s submission that the jury somehow improperly took into account uncharged acts. The context evidence I have earlier described was admissible and was correctly before the jury, and they were correctly directed in relation to that evidence. The weight that the jury attributed to the evidence was a matter for them.

18. [33]

    Having considered of all the evidence I do not have any doubt about the finding of guilt with respect to Ground 1, much less do I conclude that the jury must have harboured such a doubt.

19. [34]

    I would dismiss Ground 1.

20. [35]

    As to Ground 2, I have decided that it was open to the jury to be satisfied of TC’s guilt of count 3. OB said that TC had pinched her breast having played with her what he described as a ‘body trick’. The trick, TC accepted at the trial, was that a person would touch the wall at the extent of their reach. After receiving a shock (a pinch) a person’s muscles would contract and, as a consequence, their reach would reduce. The person “tricked” could touch the wall before the shock but not after.

21. [36]

    OB described the trick. She gave evidence that [TC] pinched her ear first and then: “well after that he didn’t pinch my ear, he pinched my chest”. OB’s evidence was clear and convincing. OB’s evidence also finds some support from a complaint made to her mother and a complaint made to a school friend about TC touching her under her shirt.

22. [37]

    TC accepted that the body trick game occurred and said that the game was based on a pinch or twist on the ears. TC was asked about the possibility of this happening in relation to OB’s chest or breast areas and responded:

23. [38]

    TC accepted that touching OB’s breast or nipple was not part of the game. TC was challenged on the basis that he had deliberately lied to the police and had made up evidence in court.

24. [39]

    TC did not explain how it was that he inadvertently pinched OB near her nipple or her breast nor why he would have deliberately done so. Nonetheless he accepted it was possible he had done so.

25. [40]

    Most troubling for TC’s account was that he initially denied to the police in his interview that he knew anything about the ‘body trick’. It was, however, clear when he gave evidence in court that he knew precisely what the ‘body trick’ was. As I will shortly explain in much greater detail, it was open to the jury to conclude that the applicant lied to the police about his knowledge of the ‘body trick’ and that the lie was told in consciousness of guilt on count 3.

26. [41]

    I have had regard to all of the evidence and I am not in any doubt about the applicant’s guilt in respect of count 3, much less do I consider the jury should have had such a doubt.

27. [42]

    To the extent the applicant also complains about inconsistent verdicts between the guilty verdict on count 3 and acquittal on count 4, I reject the submission. The inquiry that this Court conducts is whether there is an explanation for the acquittals and not the convictions, see TK v R [2009] NSWCCA 151 per Simpson J and the many cases which have followed it. I have concluded that there is a logical and reasonable explanation for the different verdicts returned in respect of counts 3 and 4.

28. [43]

    In respect of count 4, OB suggested that “his hand brushed my butt” which lasted “for like a second”, and then it happened a second time the same day and he gave OB “like a side hug … and then he put his hands on my, you know, butt”. The complainant’s mother did not initially remember the complaints about the subject matter of count 4 and OB’s friend did not remember any complaints about being touched on the bottom.

29. [44]

    The incidents the subject of count 4 occurred two years after the incidents the subject of the counts 1 and 3. Due to the nature and brevity of the circumstances on which count 4 is based, the jury was entitled to give TC the benefit of the doubt that the touching of OB’s buttocks on this occasion may have been accidental. The jury was directed to “take a cautious approach to the discharge of a heavy responsibility”. TC has failed to establish that the jury’s verdict in respect of count 4 was inconsistent with the verdict on count 3.

30. [45]

    Ground 2 should be dismissed.

31. [46]

    By Ground 8 the applicant complained that the testimony given by ‘both complainants’ in the pre-trial recording process was inherently unreliable and “improperly” obtained. This caused a miscarriage of justice by causing charges to be laid. Two particulars were provided:

    1. (1)

       The testimony of “both complainants” was inherently unreliable cause of youth, confusion, hunger, recalcitrance, and reluctance to give evidence;

    2. (2)

       The interview process for both complainants, in the ERISP and in Court, failed to conform with legislation or operating procedures or was otherwise tainted by irregularities.

32. [47]

    One matter may be dealt with at the outset. The reference to “both complaints” in Ground 8 incorporated OB and another alleged victim, EC. The charge brought against the applicant in relation to EC’s complaint was discontinued. EC was not called as a witness at TC’s trial. The allegations made by EC formed no part of the evidence against TC at his trial. No conceivable miscarriage of justice was occasioned by the “interview process” for EC. There was no “testimony” of EC admitted at TC’s trial and no possible miscarriage of justice arose from that non-existent “testimony”. TC’s complaints relating to EC were completely irrelevant to this appeal and nothing further need be said about them.

33. [48]

    The applicant in Ground 8 principally made a number of complaints about the way OB was interviewed by police. The issues raised by TC about the interview process relating to OB were not raised by the applicant’s counsel at trial. I would reject the applicant’s complaints on this basis alone.

34. [49]

    I would, in any event, reject each of the complaints made by TC in Ground 8. In particular, I reject any suggestion that the complainant was “coached” about where she was touched. In her original interview with the police OB was asked:

35. [50]

    I have viewed the relevant part of the video of OB’s questioning by the police where these questions and answers were given, as I was invited to do by the Crown. It is clear that in the video, in response to an open-ended question, OB indicates her left breast area with a circling gesture. The police officer’s clarification of OB’s physical indication of the ‘left breast area’ was accurate and reflected a correct observation of the indication given by OB. The suggestion of “coaching” is without foundation.

36. [51]

    In the pre-recorded evidence given by OB, counsel for the Crown asked careful and open-ended questions about the parts of the body where she was touched. No legitimate complaint can be levelled about those questions. The suggestion that the terms “breast” and “nipple” were suggested to OB by the questioner is not correct. Both terms were used by OB in answer to non-leading questions.

37. [52]

    Whilst TC is correct that OB was unsure about some of the details of matters she was asked to address, saying, on occasion “I don’t know” and “I’m not sure”, it does not cause me to doubt the reliability of her account. Some degree of uncertainty is unsurprising. OB was, however, clear in her evidence about the essential facts constituting the offences for which the applicant was convicted.

38. [53]

    The applicant’s complaint about the word ‘stroking’ being used in questioning is without merit. The relevant question emerged in this way:

39. [54]

    Fundamentally, the procedure followed in this case in interviewing the complainant does not reveal any basis for this Court’s intervention. The suggestions that “youth, confusion, hunger, recalcitrance, and reluctance to give evidence” led to any unreliability in OB’s account are without merit. I do not accept that any arguable error was demonstrated by TC in the conduct of the police interview of OB (labelled in error by TC as an ERISP).

40. [55]

    The detailed and repetitive complaints raised by TC about OB’s evidence do not reveal any error or give rise to a miscarriage of justice or a denial of procedural fairness.

41. [56]

    Ground 8 should be dismissed.

42. [57]

    The applicant submitted that he was “improperly committed for trial and therefore denied procedural fairness”. The focus of the complaint was an alleged failure by a magistrate to make an order that OB’s mother give evidence in committal proceedings. This complaint is misconceived. No miscarriage of justice arises in relation to Local Court decisions made in committing the matter for trial or in making orders about the evidence to be the subject of cross-examination at a committal hearing. I do not accept that the assertions made by TC are properly before this Court. That alone is a sufficient basis to dispose of this ground.

43. [58]

    Fundamentally, in response to Ground 3, a committal proceeding free of irregularity is not an essential precondition to a valid trial on indictment. In Potier v Magistrate Maloney and Ors [2005] NSWSC 33, Johnson J explained:

44. [59]

    Under the present committal regime, a magistrate no longer needs to be satisfied of even a prima facie case before the matter is forwarded for trial in the District Court or Supreme Court. A magistrate’s role in committal proceedings since the commencement of the Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW) has essentially been a supervisory one, intended to ensure there has been compliance with the procedural regime. In Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Simpson J said:

45. [60]

    In any event, the applicant is bound by the conduct of his legal representatives: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15. The applicant’s request for OB’s mother to give evidence at committal was effectively abandoned by his solicitor at the committal.

46. [61]

    Even if there were merit in the applicant’s claim (and there is not) his legal representatives could have sought a ‘Basha’ (R v Basha (1989) 39 A Crim R 337) inquiry and did not. This is an additional factor sufficient to dispose of this ground.

47. [62]

    I would dismiss Ground 3.

48. [63]

    By Ground 4, the applicant submitted that there was wrongful intervention, interference, and misdirection by Traill DCJ (who presided over the start of the trial involving the questioning of OB) and Wilson DCJ (who presided over the balance of TC’s trial).

49. [64]

    A complaint of excessive judicial intervention gives rise to an ultimate question whether the intervention was unjustifiable and resulted in a miscarriage of justice: Ellis v R [2015] NSWCCA 262 (Bathurst CJ; R A Hulme J; Garling J) at [57]-[65].

50. [65]

    TC’s first complaint was of “persistent interference” by Traill DCJ. Those complaints are without merit. Judge Traill’s interruptions referred to by the applicant were perfectly understandable in the context of the questioning of a very young witness with less developed language skills in a pre-recorded evidence hearing. The Judge presiding over the pre-recorded evidence was trying to adapt to what was then a comparatively new procedure. Counsel for TC was not unfairly prevented from cross-examining. Any judicial interruptions were edited out of the recording ultimately presented to the jury. There is nothing remarkable in a trial judge, where a young complainant in a sexual assault trial is being cross-examined, intervening to stop trial counsel shouting or raising his voice at the child. Her Honour at one point said:

51. [66]

    I do not regard this polite and restrained judicial intervention in a pre-trial hearing (which was edited out before it was shown to the jury) as particularly noteworthy, much less as giving rise to a miscarriage of justice. TC’s first particular of complaint under Ground 4 should be dismissed.

52. [67]

    TC’s second complaint is about Wilson DCJ “persistently interfering” in the questioning of TC about the Gulab Jamon sticky dessert. I reject this complaint. There was no “unnecessary” or “persistent” intervention by the trial judge about the subject of the dessert. Wilson DCJ was simply seeking to clarify the nature of the dessert which he originally misunderstood to be a “biscuit”. His Honour’s intervention led to the dessert being described in more detail. TC’s counsel tendered a photo of a Gulab Jamon dessert. The clarification by the trial judge assisted the jury in understanding the evidence about an important issue. No miscarriage of justice occurred.

53. [68]

    TC’s third complaint was that in his summing to the jury Wilson DCJ improperly usurped the jury’s role as arbiter of fact. I reject TC’s submission. TC’s submissions seeks to characterise the evidence in a particular way and to complain that the trial judge did not direct the jury about the content of the evidence in the way most favourable to TC. The acceptance or rejection of TC’s account and his version of the facts was a matter for the jury. No error has been shown in the trial judge’s summary of the evidence.

54. [69]

    The evidence of uncharged acts allegedly committed by TC was properly admitted at the trial. The trial judge’s account of that evidence was orthodox. The trial judge told the jury about the context evidence and directed the jury that the particular context facts could not be substituted for the facts related to the charges. His Honour gave an anti-tendency direction. The trial judge also gave the usual direction that the jury was the tribunal of fact and they must ignore views about the facts that they thought or assumed the trial judge held. The trial judge did not usurp the jury’s role and no miscarriage of justice was demonstrated.

55. [70]

    TC’s fourth complaint was that during jury deliberations the trial judge failed to follow “proper procedures” in relation to jury notes. This complaint is without merit.

56. [71]

    The trial judge received 3 jury notes dealing with uncontroversial issues:

    1. (1)

       The first note asked for clarification about the incidents and counts on indictment. At that time the Crown and defence had not completed their addresses and the trial judge had not summed up. The trial judge dealt with the note in a succinct manner on the basis that the jury’s inquiry would be addressed in the closing addresses of the parties and in the summing up. This was a conventional and correct approach.

    2. (2)

       The second note stated that the jury had not seen the travel diary of the complainant. This was a housekeeping matter dealt with by agreement between the parties in an uncontentious manner. A copy of the diary had been tendered but separate copies not provided to the jury. TC’s solicitor had copies available which were provided to the jury. The manner in which this note was dealt with was correct and no prejudice was occasioned to the applicant.

    3. (3)

       The third note asked to view both of the interviews with the complaint (with transcripts). After a discussion with counsel, during which TC’s counsel was strongly in favour of providing both recordings and transcripts to the jury, the jury were provided with what they had asked for. The manner in which this note was dealt with was correct and no prejudice was occasioned the applicant.

57. [72]

    No miscarriage of justice has been shown.

58. [73]

    Ground 4 should be dismissed.

59. [74]

    By Ground 7, TC complained that the trial judge erred in misapprehending the law and misdirected the jury in failing to specify the elements of the offence and the applicable defences to the charges.

60. [75]

    The applicant’s submissions comprise almost 40 pages. TC accepts, with admirable understatement, that the arguments he advances are ‘highly unorthodox’. The key submission made by TC, repeated in a variety of ways in great and repetitive detail over almost 40 pages, is that the Crown is required to prove that an accused intended to commit an indecent act and the decided cases in New South Wales which hold to the contrary are incorrect. TC submitted that a parent touching a child (in a non-hostile manner) carries a presumption that the touch is not an assault.

61. [76]

    The applicant advanced (a number of times) an analysis of the decision in R v Court [1989] AC 28; 87 Cr App R 144 in support of this ground. The majority decision in Court considered that to prove an indecency offence an “indecent intent” need be proven.

62. [77]

    That argument was rejected by Van Gestel v King [2023] NSWCCA at [263]. As Leeming JA made clear in Van Gestel, Lord Gough’s dissent in Court is to be preferred in New South Wales.

63. [78]

    Court has previously been considered and not followed in New South Wales, insofar as a need to prove “indecent intent” is concerned: Harkin v R (1989) 35 A Crim R 296 at [54]. In Nguyen v Director of Public Prosecutions NSW [2023] NSWCCA 42 this Court reinforced the reasoning in Harkin:

64. [79]

    The law in New South Wales is clear. Consideration of whether an act is indecent is wholly objective and is based upon the contemporary standards of ordinary members of the community. It does not require a mental element (whether intention, knowledge, recklessness, or anything else) about that attribute on the part of an accused person: Eades v Director of Public Prosecutions [2010] NSWCA 241; 77 NSWLR 173 at [7]. No mental element is required to prove an act of indecency. Evidence of the purpose of an actor “can be relevant and may be critical in characterising the acts as indecent or otherwise” per Eades at [8].

65. [80]

    The applicant’s discursive and repetitive arguments do not establish that the clear authority in Harkin, Nguyen and relatively recently confirmed in Van Gestel should no longer be applied. There is no reason, let alone a compelling reason, that these authorities should be departed from: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [74]-[76] per Bell CJ. I would ordinarily refuse leave to argue this ground which was not raised before the trial judge. As TC is unrepresented, however, I would grant leave but decline to depart from Harkin, Nguyen and Van Gestel.

66. [81]

    The remaining parts of Ground 7, dealing with directions given by the trial judge should likewise be rejected. Those directions were orthodox and in accordance with binding authority. No miscarriage of justice has been shown.

67. [82]

    I would reject Ground 7.

68. [83]

    By Ground 11, TC complained about the absence of a direction given under s 165B of the Evidence Act 1995 (NSW) (‘Evidence Act’). In Brown v R (2022) NSWCCA 116, Bell CJ summarised the principles as follows:

69. [84]

    In the present case, the events the subject of count 1 occurred between 1 January 2015 and 31 December 2015. The events the subject of count 3 occurred between 12 January 2014 and 12 January 2016. The first complaint was made by OB on 19 September 2017.

70. [85]

    Importantly, no s 165B direction was sought by applicant’s counsel. There was, however, extensive discussion between the trial judge and counsel about a list of directions sought by the Crown. The judge asked for any suggested additional directions sought by parties. The contents of the summing up became MFI 28: ‘Summing-up document as agreed between the parties and the Court’. The lack of an application for a s 165B direction by the applicant’s experienced trial counsel is sufficient to dismiss Ground 11. The delay between the offending and complaint was, in context, comparatively short. The trial judge was not required to second guess the applicant’s counsel and give a direction which was not sought. TC's submission that the trial judge was under a duty to give a s 165B direction despite not being asked to give one is inconsistent with principle: Brown at [22]. The failure to give a direction in the circumstances is not a miscarriage of justice.

71. [86]

    In any event, I do not accept that any of the matters the applicant has identified establish a significant forensic disadvantage that could be attributed to delay. The applicant did not dispute the surrounding circumstances of either incident having occurred in substantially the same terms as OB described. In count 1 TC accepted there was an occasion where OB had her head on his lap one evening when OB was in year 7 when he asked her to get some tissues. TC’s case on count 1 was that OB was mistaken when she says she saw his penis ejaculating and instead she saw TC spilling a dessert on his shorts. In relation to count 3 the applicant agreed he played a ‘body trick’ game with OB in essentially the terms suggested by OB. TC accepted he may have touched in the vicinity of OB’s breast in the game. TC’s case on count 3 was that the touch was nonsexual in nature or inadvertent. No forensic disadvantage was experienced by TC by delay in relation to either count.

72. [87]

    Ground 11 must be dismissed.

73. [88]

    Ground 5 complains about the trial judge’s rulings allowing evidence of uncharged acts as context evidence. It was asserted that this evidence was not relevant and that its prejudicial nature exceeded its probative value and thus s 137 of the Evidence Act was engaged.

74. [89]

    The evidence to which objection is taken on appeal was admitted at trial without objection by the applicant’s counsel with the sole exception to the evidence elicited in answer to Q 416 contained in MFI 13. The objection to the evidence elicited in answer to Q 416 contained in MFI 13 is without merit and can be put to one side for the purposes of this appeal.

75. [90]

    The evidence of uncharged acts consisted of:

    1. (1)

       The applicant putting his hands under the collar of OB’s shirt and moving his hands under her shirt; and

    2. (2)

       OB seeing TC naked with an open bathroom on two occasions.

76. [91]

    Evidence is ordinarily not admissible only if objection is taken, that is, ‘not admissible over objection’: SA v R [2024] NSWCCA 50 and the cases cited at [37] – [40]. An appeal relying on the wrong admission of evidence that was not objected to can only succeed if this Court is satisfied that the admission of the evidence has caused a miscarriage of justice: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72].

77. [92]

    The admissibility of context evidence in a child sexual assault trial is commonplace. Its admission in the present case did not cause any unfairness or give rise to any miscarriage of justice. The evidence here was plainly relevant and its prejudicial nature did not exceed its probative value. The trial judge gave a direction to the jury, with the agreement of the applicant’s counsel, that they were (a) not to use the evidence for a tendency purpose, (b) not to substitute the evidence for the allegations in the indictment, and (c) not permitted to punish the accused for acts other than those listed on the indictment.

78. [93]

    Even if, contrary to the conclusion I have reached that there was no unfairness in the admission of the context evidence, the trial judge’s direction ameliorated any possible prejudice. As no objection was taken at trial by counsel of the applicant, rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applies. The applicant has not demonstrated that leave should be granted.

79. [94]

    As with earlier grounds, however, I would nevertheless grant leave to rely on Ground 5 of the notice of appeal and dismiss Ground 5.

80. [95]

    By Ground 6, the applicant complained that the trial judge failed to afford him procedural fairness in relation to the Crown’s accusation that the applicant had lied in his ERISP about an activity involving pinching the complainant on her chest.

81. [96]

    In Dawson v R (2024) NSWCCA 98 Adamson JA, with whom Ward P and I agreed, restated the principles relating to the use of lies as consciousness of guilt in the sense identified in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. For an alleged lie to be left to the jury to be used as proof of consciousness of guilt, the trial judge must be satisfied that the evidence is capable of meeting the following criteria:

    1. (1)

       The alleged statement was a deliberate lie. That is, the statement was false to the knowledge of the accused at the time it was made;

    2. (2)

       The only explanation for the lie is that the accused knew that the truth of the matter about which he lied would implicate him in the offence; and

    3. (3)

       The tribunal of fact must be directed that there may be reasons for the telling of a lie apart from the consciousness of guilt.

82. [97]

    The fact that the applicant proffers an explanation of the conduct inconsistent with the consciousness of guilt does not make the evidence inadmissible. This is a quintessential jury question.

83. [98]

    In the present case, the ‘body trick’ the subject of count 3 was described by TC in some detail at the trial. TC clearly knew about the ‘body trick’ at the time of the trial and, critically, at the time of the offending. In his interview with the police, however, TC said this about the ‘body trick’:

84. [99]

    At the trial, TC gave detailed evidence in chief about the ‘body trick’. At the conclusion of evidence in chief the Crown gave notice to the judge and the applicant’s counsel that they proposed to cross-examine TC on the basis that this answer to the police was an Edwards lie, and that a direction to that effect would be sought at the end of the trial.

85. [100]

    TC accepted that it was open to the Crown to explore in cross-examination whether he was telling the truth in the above answer. The gravamen of TC’s argument in Ground 6 is the Edwards direction given, rather than the cross-examination on the topic. TC’s written submissions on Ground 6 comprise of over 13 pages. I am unable to accept the applicants’ submissions.

86. [101]

    I do not accept that OB misdescribed the ‘body trick’ in her evidence. Whether or not OB fully described all of the possible additional permutations of the game, particularly given the fact she was a child, is irrelevant as to whether TC lied to the police in the answer above. I reject TC’s attempt to assert that there were other forms of the ‘body trick’, not forming part of the evidence at the trial. In this regard I reject the attempt, in the guise of “supplementary submissions” about Ground 6, to present further evidence about how the "body trick" game operated. No evidence of these possible additional permutations of the game is before this Court.

87. [102]

    Fundamentally, the proposition put by the Crown prosecutor in cross-examination to TC that he had lied in his answer to the police, was uncontroversial and plainly open on the evidence. The prosecutor had a duty to put matters to the applicant in cross-examination that would later be relied on in closing submissions. The applicant had the opportunity to respond to those matters. The applicant’s counsel had the opportunity to re-examine TC on those issues.

88. [103]

    TC’s submissions in support of Ground 6 essentially rest on an assertion that it was not open to find that his statement made in the ERISP was a lie and/or that he was denied procedural fairness in the way the issue was dealt with. Two matters in particular were referred to:

    1. (1)

       The fact that the Crown raised the issue at a late stage; and

    2. (2)

       The ‘absence of independent evidence’ that the applicant statement in the ERISP was a lie.

89. [104]

    Having regard to all of the evidence, the trial judge was correct to leave to the jury the question of whether TC was feigning a lack of understanding in the police interview about the ‘body trick’ game. As to the asserted denial of procedural fairness, prior to TCs evidence in chief, the Crown had no proper foundation to assert that the applicant had lied in his ERISP. This explains the time at which the Crown raised the issue. The Crown raised the issued before cross-examination of the applicant commenced for the reason that after evidence-in-chief, there was a basis to submit that TC had lied in his ERISP. The Crown acted properly in doing so.

90. [105]

    In cross-examination TC responded to questions that he had lied in ERISP:

91. [106]

    The applicant accepted by these answers that he knew about the ‘body trick’ game, and that he was trying to give an impression to the police that he did not. This effectively excluded the possibility of an innocent explanation. The questioning of TC continued:

92. [107]

    Whether or not TC’s ERISP contained an Edwards lie was subject of a debate between the Crown and the applicant’s counsel. The trial judge raised this issue with the applicant’s counsel:

93. [108]

    The applicant’s counsel sought to submit that TC’s answer was truthful:

94. [109]

    In response to the trial judge, the final and only alternative interpretation suggested by trial counsel was:

95. [110]

    I have concluded that the way the applicant’s counsel put these matters were arguments that the trial judge properly determined should be considered by the jury. TC’s arguments did not deny the capability of the evidence to be deployed as evidence of consciousness of guilt reasoning. It is clear there was a satisfactory evidential foundation for the conclusion that the words used by TC in the ERISP were capable of being understood by the jury as containing a lie told in consciousness of guilt.

96. [111]

    The trial judge did not err in permitting the Crown to rely on the applicant’s feigned ignorance of the body trick game as demonstrating consciousness of guilt. There is no denial of procedural fairness in the way that this was conducted in the trial.

97. [112]

    As to the direction given by the trial judge to the jury that the direction was based on Edwards, TC complains about an omission in relation to an accomplice (as was the case regarding the facts in Edwards). There was no occasion to give a direction based on evidence regarding an accomplice where the circumstances did not involve an accomplice. This was not a relevant omission in this case and to give an accomplice direction would have been quite wrong.

98. [113]

    TC submitted in this Court that neither a ‘Zoneff’ (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28) nor an Edwards direction should have been given. That contention relies on the assertion that the applicant did not lie. I have rejected this submission. It was plainly open to the jury to determine that the applicant did lie in his ERISP and that the lie was told in consciousness of guilt.

99. [114]

    The direction given by his Honour was framed favourably to the accused as to being “a lie … the Crown has submitted on”. TC’s clear and detailed knowledge of the ‘body trick’ game was demonstrated by the evidence TC himself gave. TC accepted in cross-examination that he knew about the ‘body trick’ when he was asked by the police but was trying to give the police the impression that he did not. No error has been demonstrated in the trial judge’s determination that the Crown could invite the jury to conclude that TC lied and that the lie was told in consciousness of guilt. There is no unfairness demonstrated in the form of the direction.

100. [115]

     The trial judge was asked for separate reasons about an Edwards lie and no separate reasons were ultimately provided. I have concluded that the trial judge’s reasons for leaving the Edwards lie to the jury were sufficiently articulated in the course of argument. In any event, the decision of the trial judge was plainly correct, and no miscarriage of justice has occurred.

101. [116]

     Ground 6 should be rejected.

102. [117]

     By Ground 9, the applicant complained that there was a miscarriage of justice caused by a failure to deal with the offences for which he was convicted summarily rather than on indictment.

103. [118]

     This ground must be rejected. The finding of a bill of indictment is a discretion invested in the Crown. That decision is not open to review by the courts: Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at [77]. The decision to proceed on indictment rather than summarily is not amenable to review in this Court. No miscarriage of justice is shown to arise from the exercise of prosecutorial discretion to proceed in the District Court.

104. [119]

     Ground 9 should be dismissed.

105. [120]

     By Ground 10 the applicant complained that the Crown engaged in negligent and improper behaviour. Three particulars were provided:

     1. (1)

        The Crown failed in its duty to ensure evidence [is] according to law,

     2. (2)

        The Crown’s negligent conduct in belatedly raising and submitting an allegation the applicant was lying or fabricating the facts in response to police questioning [left] defence counsel with insufficient time to research and present a proper response.

     3. (3)

        The credibility of the applicant was wrongly impugned by the Crown’s false allegations that he was lying or fabricating the facts in his response to police questioning about a pinching incident which became the basis of the [count] 3 charge.

106. [121]

     I have earlier dealt with, in substance, each of these complaints in addressing earlier grounds. No negligence or improper conduct of the Crown has been demonstrated. At the risk of repetition:

     1. (1)

        as to the first particular, there is no basis to the contention that the Crown allowed inaccurate, unreliable or ‘manipulated’ evidence to go before the jury. This first particular of Ground 10 must be rejected.

     2. (2)

        Particulars 2 and 3 relate to the Edwards lies issue about which I have already concluded that the Crown’s conduct was proper and the decision of the trial judge correct. The lie as consciousness of guilt issue only crystallized when the applicant gave evidence-in-chief that was directly contrary to his feigned lack of knowledge about the ‘body trick’ game given in his ERISP. As I have said, the Crown made it clear prior to TC’s cross-examination that they would be exploring the issue and making a submission about Edwards lies at the conclusion of the case. TC’s counsel was on notice prior to the cross-examination that this was an issue in this case. If the applicant’s counsel needed more time to address the issue it could have been sought but was not. The applicant’s complaint in this Court is without merit. Finally, the contention by the applicant as to whether the Edwards lies as consciousness of guilt issue should be left to the jury. I have already dealt with this submission. There was plainly an issue for the jury to determine, both whether the applicant had lied, and if so, whether it demonstrated a consciousness of guilt. There is no basis whatever for the serious assertions of impropriety levelled by the applicant against the Crown. The second and third particulars of Ground 10 must be rejected.

107. [122]

     Ground 10 should be rejected.

Conclusion and proposed orders on conviction appeal

1. [123]

   For the reasons I have given, none of the grounds of appeal have been made out. Accordingly, I propose the following orders on the conviction appeal:

   1. (1)

      An extension of time granted to file the amended notice of appeal to 3 October 2025.

   2. (2)

      To the extent necessary, leave to appeal granted on Grounds 1-11 of the amended notice of appeal.

   3. (3)

      The amended notice of appeal is dismissed.

Grounds of appeal - Sentence

1. [124]

   TC’s sentence appeal may be addressed shortly. TC’s sentence has been served in full. He was sentenced to an aggregate sentence of 3 years and 9 months with a 2 years and 6 months non-parole period, dating from 10 December 2019. TC requires a very considerable extension of time to conduct the sentence appeal. The notice of appeal was filed 4 years and 8 months after the convictions, 2 years and 1 month after release on parole, and 10 months after the entirety of sentence expired.

2. [125]

   Having carefully considered the grounds I have determined that none enjoy a reasonable prospect of success. The custody threshold was clearly reached in this case and the sentence imposed by the sentencing judge was a sentence imposed within the appropriate range. Even if the applicant’s sentence appeal was successful, any variation of the sentence would not have any practical effect. The matter about which TC is concerned is his registration as a child sex offender, something which is a function of his conviction and not a detail of the sentence. 12 separate grounds of sentencing appeal were advanced and while not formally abandoned at the hearing, TC said very little about these grounds in his oral submissions. I will nevertheless briefly address each of those grounds.

3. [126]

   The applicant advanced the following grounds on his sentence appeal:

4. [127]

   Ground 1 complained that the sentencing judge acted on his own accord without considering submissions from counsel. This ground is without merit. The Crown supplied written submissions in advance of the 9 August 2019 sentencing hearing and the applicant’s counsel responded to those submissions both orally and in writing.

5. [128]

   Supplemental submissions were provided by the Crown to defence counsel on the morning of 9 August 2019. Counsel for the applicant had the opportunity to respond on 9 August 2019 and again on 25 October 2019. The sentencing judge’s reasons follow a familiar format. His Honour’s reasoning process is exposed and all relevant matters are set out. The complaint that the sentencing judge deprived the applicant of the opportunity to present his subjective case must be rejected. His Honour was not obliged to accept the opinions of the psychologists called in TC’s case. In any event, TC’s counsel expressly disavowed reliance on a causal connection between the applicant’s mental health and his offending. TC’s counsel conceded that no finding of remorse could be made as TC had not accepted responsibility for the offending. The sentencing judge nevertheless made a finding of special circumstances on the basis the applicant suffered from depression and anxiety, a matter advanced by the psychologists called in TC’s case.

6. [129]

   The only real issue in dispute on sentence was the applicant’s risk of reoffending and his prospects of rehabilitation. The trial judge made findings which were ‘guarded’ on these subjects. In the face of continuing denial by TC of the offending, the psychological evidence could not be determinative on those subjects. In relation to prospects of rehabilitation, the sentencing judge raised concerns with defence counsel and provided time to take instructions about whether counsel wished to call TC. Specific instructions were sought. The applicant’s counsel informed the sentencing judge that TC would not give evidence. TC was thus firmly on notice that the sentencing judge was not inclined to accept his out of court statements, repeated in the psychological evidence, on contentious issues. The applicant’s counsel was afforded the opportunity to call the applicant. TC was afforded procedural fairness.

7. [130]

   Finally, the Crown made it clear the psychological evidence was in dispute. The applicant had every opportunity to be heard about those concerns. The issue was properly raised with the applicant’s counsel who made submissions about it.

8. [131]

   I would refuse leave to appeal on Ground 1 of the sentence appeal.

9. [132]

   Ground 2 of the sentencing appeal complained about the sentencing judge dismissing the expert opinions of two psychologists. Of the first psychologist, Mr Borenstein, his Honour found Mr Borenstein’s opinions extremely unpersuasive. Mr Borenstein performed tests on the applicant which provided, inter alia, ‘normal’ results on the depression anxiety stress scale. Mr Borenstein, in contrast, opined the applicant suffered depression, without explaining this inconsistency. His Honour’s rejection of Mr Borenstein’s opinion in these circumstances was unsurprising.

10. [133]

    In relation to the second psychologist, Ms Haque, the applicant complained that the sentencing judge was impatient and judgemental in an exchange about risk and rehabilitation. I do not agree. Fundamentally, it was not an error by the sentencing judge to reject the opinions of the psychologists. It was open to his Honour to do so. His Honour was entitled to accept some of the material in the reports, which he did, and reject other opinions: s 135 Evidence Act. As noted in relation to Ground 1 his Honour had difficulty with the opinions expressed. There was no denial of procedural fairness in relation to rejecting parts of the psychologists’ evidence.

11. [134]

    Leave to appeal on Ground 2 should be refused.

12. [135]

    Ground 3 is a complaint about wrongly imposing an accumulated sentence for count 3. There was in the sentence imposed a notional accumulation of 9 months of the 12 months imposed for the offence.

13. [136]

    There were significant distinctions between the two offences that called for a measure of accumulation. The criminality of count 1 did not encompass the criminality of the count 3 offence: Cahyadi v R [2007] NSWCCA 1 at [27]. I do not accept that entirely concurrent sentences should have been imposed. Accumulated sentences were available and in the discretion of the sentencing judge to apply.

14. [137]

    In any event, as I have explained at the outset, there is no practical utility in altering a sentence in this way which has been completed in full.

15. [138]

    Leave to appeal on Ground 3 of the sentencing appeal should be refused.

16. [139]

    By Ground 4 the applicant complained that the sentencing judge allowed extraneous or irrelevant matters to guide him, namely that the applicant failed to give evidence in the sentencing proceedings.

17. [140]

    As I have earlier explained, his Honour gave counsel for the applicant the opportunity to call the applicant if he were minded to do so, to address concerns his Honour had expressed about self-serving statements contained in the psychologists’ evidence. The sentencing judge afforded the applicant procedural fairness in giving his counsel the opportunity to take those instructions. The applicant’s counsel was on notice of the sentencing judge’s concerns when the applicant declined to give evidence. It was open to the sentencing judge to take into account the fact the applicant did not give evidence when resolving factual disputes that the applicant could have given evidence about. These were matters the applicant was seeking to establish in mitigation about which he bore the onus: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54; (1990) 73 ALJR 1550.

18. [141]

    Leave to appeal on Ground 4 should be refused.

19. [142]

    Ground 5 asserted error in that it was said the sentencing judge described facts as agreed when in fact they were contested. This ground is without merit. The Crown tendered a summary of facts for which they contended and which they submitted the sentencing judge should find established. The applicant’s counsel accepted that the summary was an accurate representation of the evidence and expressly conceded that he was content to proceed on the basis of those facts. His Honour made a finding that the summary was an accurate representation of the evidence before him.

20. [143]

    Ground 5 is without merit and leave to appeal should be refused.

21. [144]

    By Ground 6 the applicant asserted that the sentencing judge misapplied the submissions of the parties in relation to the objective gravity of count 1.

22. [145]

    His Honour concluded that the objective gravity of count 1 was just below the mid-range. In making that finding the sentencing judge recorded that he may have found the offence to have been in the mid-range of objective seriousness but by reason of the Crown submission’s that count 1 was less than the mid-range of objective seriousness, had made the finding he did.

23. [146]

    Count 1 involved a gross breach of trust by a step-parent towards his 12-year-old step-daughter by masturbating to ejaculation in close proximity to her face. The sexual act finished with the applicant requesting the complainant get tissues for him at which time she saw semen coming from his penis. The sentencing judge’s assessment of the seriousness of the offence was, in those circumstances, generous to the applicant. In any event, the sentencing judge had a wide discretion in making a finding of objective seriousness which will not lightly be interfered with by this Court: Mulato v R [2006] NSWCCA 282 per Spiegelman CJ and Simpson J at [37]. Judicial recognition that the assessment of objective seriousness is quintessentially for the sentencing judge has been made in a plethora of decisions following Mulato, including Baladjam v R [2018] NSWCCA 304 at [267]; (2018) 341 FLR 162; Lees v R [2019] NSWCCA 65 at [55]; R v Ferguson [2022] NSWCCA 147 at [59]. No error has been shown here.

24. [147]

    Leave to appeal on Ground 6 should be refused.

25. [148]

    By Ground 7 the applicant complained that the sentencing judge failed to consider the Crown made “misleading submissions”. Three particulars are given.

26. [149]

    The first was that the Crown submissions were incomplete. As I have explained, the Crown provided initial written submissions and then, following submissions by the applicant, the Crown provided further written submissions. This is entirely orthodox. The complaint that the applicant’s counsel was “disadvantaged by a lack of time to prepare” is without merit. If there had been any such disadvantage, the applicant’s counsel should, and no doubt would, have sought an adjournment. He did not. In any event the proceedings were part heard for some months and there was ample opportunity for TC’s counsel to respond. This particular is without merit.

27. [150]

    The second particular was that the Crown used “vague wording” in their submissions. I reject the applicant’s submission. It is fundamental to our system of justice that the judge make determinations of law on the facts as found. In sentencing the judge may or may not accept submissions made by the parties. Submissions are either persuasive and helpful, or they are not.

28. [151]

    In the present case, the particular examples provided by the applicant actually helped him. The first was about good character, a matter favourable to the applicant, and the second was the conditional acceptance by the Crown that conviction on count 3 alone may not have necessitated a full-time jail term if it were considered in isolation. No error or unfairness has been shown. The second particular of Ground 7 should be rejected.

29. [152]

    The third particular related to alleged errors and misrepresentations by the Crown. It appears the applicant asserts that the Crown referred to the wrong paragraph of Van Ryn v R [2016] NSWCCA 1. No error has been shown and no explanation has been provided as to how the alleged misdescription caused the sentencing to miscarry.

30. [153]

    Leave to appeal on Ground 7 should be refused.

31. [154]

    By Ground 8 the applicant complained that the sentencing judge failed to consider whether both offences could have been dealt with summarily.

32. [155]

    In this case the sentencing judge correctly considered the section 5 (s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW)) custodial threshold had been crossed and that a custodial sentence was required. The sentencing judge found that count 1 was just below the midrange of objective seriousness. In those circumstances, for an offence carrying a 10-year maximum penalty with a standard eight-year non-parole period, the Local Court could not have dealt with the matter. The indicative 3-year term was outside the 2-year jurisdictional limit of the Local Court: s 267 Criminal Procedure Act 1986 (NSW). There were no compelling reasons that this matter should have been dealt with in the Local Court: Zreika v R (2012) 223 A Crim R 460 at [107]-[109]. It was unnecessary for the sentencing judge to take into account the theoretical possibility that the sentences could be dealt with in the Local Court.

33. [156]

    Leave to appeal on Ground 8 should be refused.

34. [157]

    By Ground 9 the applicant complained that the sentencing judge failed to consider references and testimonials from family members in formulating his sentence. This ground is demonstrably incorrect.

35. [158]

    The sentencing judge received evidence of references and testimonials and said of the applicant’s case generally:

36. [159]

    Further:

37. [160]

    The sentencing judge made a finding that “the prior good character of the offender” was a mitigating factor. The testimonials were addressed to that issue, and they were appropriately dealt with by sentencing judge.

38. [161]

    No error has been demonstrated and leave to appeal on Ground 9 should be refused.

39. [162]

    By Ground 10 the applicant complained that the sentencing judge failed to take into account the detriment suffered by the applicant, the loss of contact with his children, which amounted to extra-curial punishment.

40. [163]

    That the sentencing judge considered the loss of contact with his children was a direct consequence of the offending and did not justify a finding of extra curial punishment was consistent with authority in this Court: RH v R [2019] NSWCCA 64. In RH, a mother’s 6 children were taken away by child protection authorities due to findings of serious sexual assault by RH against one of them. This did not amount to extra curial punishment.

41. [164]

    In the present case, any additional complaints about extra curial punishment were not raised below and cannot be raised here on an appeal against sentence.

42. [165]

    Leave to appeal on Ground 10 should be refused.

43. [166]

    By Ground 11 the applicant complained that the sentencing judge failed to consider all possible alternatives to custody.

44. [167]

    As I have found, the sentencing judge here correctly considered that count 1 deserved a sentence of full-time custody. The sentencing judge considered a total sentence of three years nine months as appropriate. For a sentence of three years (in an aggregate) no alternatives were available and an intensive corrections order (ICO) was not available for this offence: s 61M(2) of the Crimes Act and ss 67 and 68(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing judge was not obliged to list the sentences that were not available.

45. [168]

    Leave to appeal on Ground 11 should be refused.

46. [169]

    By Ground 12 the applicant complained that the sentence imposed was unreasonable, unjust or manifestly excessive. At the risk of repetition, the sentence was not manifestly excessive for at least the following reasons.

47. [170]

    Count 1 involved masturbating while stroking the 12-year-old victim’s face, ejaculating in close proximity to her face, and asking her to get tissues while he held his naked penis. This is conduct that should be subject of condign punishment. Count 3, while not as serious, was an indecent assault on a child.

48. [171]

    The applicant was a 46-year-old man and the offences involved a serious abuse of the trust of his 12-year-old step-daughter. Her victim impact statement read as follows:

49. [172]

    TC demonstrated no remorse, insight or understanding about the damage he caused.

50. [173]

    The statutory guidepost for the offence was ten years and the non-parole period was eight years. This suggests the seriousness with which the legislature considered the offending.

51. [174]

    Leave to appeal on Ground 12 should be refused.

Conclusion and proposed orders on sentencing appeal

1. [175]

   For the foregoing reasons I propose the following order in respect of the sentence appeal:

   1. (1)

      Leave to appeal on grounds 1 – 12 of the sentence appeal is refused.

2. [176]

   SWEENEY J: I have had the benefit of reading in draft the judgment of Payne JA. I am grateful to his Honour for his thorough analysis of the grounds of appeal. I agree with his Honour’s proposed orders and his reasons for them.

3. [177]

   My own independent assessment of the evidence confirms there is no doubt about the guilty verdicts.

4. [178]

   HUGGETT J: I have had the considerable advantage of reading the draft judgement of Payne JA. I am grateful for his Honour’s analysis of the evidence and directions given at TC’s trial, his submissions on appeal and the relevant legal principles. I agree with the orders proposed by his Honour for the reasons provided.

5. [179]

   Having undertaken my own assessment of the whole of the evidence, I am of the view that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the two offences for which he was convicted.