TH v R

1. [1]

   LEEMING JA: I agree with Davies J. In particular, I agree with his Honour that it is unnecessary for the purposes of resolving this appeal to express a view as to the different approaches to factual challenges made by a sentencing judge in Hordern v R [2019] NSWCCA 138, being an issue which was not the subject of submissions.

2. [2]

   DAVIES J: The applicant stood trial before a jury on one count of aggravated indecent assault of a child under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). On 28 September 2017 the jury found him guilty of that offence. The maximum penalty for this offence is ten years’ imprisonment. There is a standard non-parole period of eight years.

3. [3]

   On 20 November 2017 he was sentenced by Judge Letherbarrow SC in the District Court to imprisonment for five years commencing 24 June 2017 and expiring 23 June 2022 with a non-parole period of three years expiring 23 June 2020.

4. [4]

   The applicant now seeks leave to appeal from the sentence imposed on one ground as follows:

5. [5]

   The relevance of determining the issue raised by the ground of appeal (hereinafter referred to as “the contested factual issue”) is that it bears upon the measure of objective seriousness of the offending, as the sentencing judge noted and as the parties agree.

The offending

1. [6]

   The applicant is the paternal grandfather of the complainant. At the time of the offending the complainant was aged eight years.

2. [7]

   On the night in question, which was probably in January 2016, the complainant and her sisters, then aged seven and nine, spent the night at the home of the applicant and his wife. The applicant and his wife slept in different rooms. The arrangement that night was that the complainant was to sleep in the applicant's bed with him and the two sisters would sleep with their grandmother in her bed.

3. [8]

   When the complainant got into the applicant's bed he was already in it and she thought he was asleep. She positioned herself in the bed so that her head was opposite his feet, in a head to toe position. A minute or two later the applicant turned his body around so that they were lying side by side in the same direction. The complainant was lying on her right hand side facing away from the applicant who was behind her.

4. [9]

   The applicant then proceeded to pull down the complainant's lower clothing to just above her knees. The complainant said that she felt the applicant's penis (she described it as his “rude part”) against her bottom and that it was "hurting [her] a little bit". The complainant then described what happened variously as "he done an accident on my back rude part" and "he was doing the wee-wee" on the back of her “rude part". She said that she thought the applicant was wearing shorts and a shirt, but did not think he was “wearing undies” at the time of the offence.

5. [10]

   The complainant said that the applicant then went into the adjoining bathroom and came back with a cloth in his hand. She said, "and he wiped the wee-wee up and he, and then he um, pulled my pants, and then he cleaned it back up then pulled my pants back up. And then went to the other side of the bed and then went back to sleep."

6. [11]

   The complainant disclosed the offending to her mother on 9 April 2016 after her mother picked her up from a subsequent sleepover at the grandparents’ house. The applicant was arrested on 7 July 2016. He was aware for some time before his arrest of the allegation made by the complainant because the complainant’s mother had telephoned and spoken with the applicant’s wife on or shortly after 9 April 2016. The complainant’s father also spoke to the applicant about the matter.

7. [12]

   In a recorded interview made at the applicant’s house at the time of his arrest, the applicant claimed that he suffered from an incontinence problem during the night and that he sometimes woke up wet. He claimed to wear pyjamas always, especially when the granddaughters were sleeping over.

8. [13]

   In his Remarks on Sentence (ROS), Judge Letherbarrow identified the issue which needed to be determined as follows:

9. [14]

   His Honour went on to say that he was satisfied beyond reasonable doubt that the applicant did have an erection and ejaculated upon the complainant. His Honour set out in detail the reasons for that determination. Those reasons included the following:

Submissions

1. [15]

   The applicant noted in his submissions that the Crown opened the case to the jury that “the accused pulled the pants of the complainant down and that he rubbed his penis against her bottom and that there was some kind of liquid that went on her back or on her bottom". In that way, the applicant submitted, whether the applicant had an erection and ejaculated on the complainant were not essential elements to his conviction.

2. [16]

   The applicant drew attention to the way the Crown closed the case as to what constituted the indecent assault. The applicant also drew attention to what his Honour had said when summing up the case as follows:

3. [17]

   The applicant submitted that it followed from his Honour’s summing up that a conviction did not necessitate a finding that the applicant had an erection or ejaculated.

4. [18]

   The applicant pointed to the evidence of the complainant where she referred to the applicant having “an accident” and her repeated references to the applicant doing a “wee-wee” on her bottom. The applicant submitted that there was no forensic evidence to determine whether the discharge was urine or ejaculate.

5. [19]

   The applicant submitted that the sentencing judge was in error in concluding that the applicant had an erection and thereafter ejaculated on her.

6. [20]

   The Crown submitted that the sentencing judge correctly approached the task of determining the contested factual issue on the basis that the fact, if adverse to the applicant, must be established beyond reasonable doubt. Further, the Crown submitted that the judge’s finding as to the contested fact was consistent with the jury’s verdict. In that regard, the Crown submitted that the jury could find that the indecent assault was the applicant’s erection and ejaculation on the complainant.

7. [21]

   The Crown submitted that there was sufficient evidence for the sentencing judge to conclude as he did. That evidence was to be found in the recorded interview with the complainant where she referred to the applicant’s “rude part” touching her back and hurting until the rude part was removed from her back.

Determination

1. [22]

   There is, at the present time, a division of opinion within this Court about the approach that should be taken where there is a challenge to a factual finding by a sentencing judge. The traditional view derives from what was said by Hunt J (as his Honour then was) in R v O’Donoghue (1988) 34 A Crim R 397 at 401. That view has been followed in a large number of cases, many of which are listed in Aoun v R [2011] NSWCCA 284 at [35] by Johnson J, and in Peters v R [2013] NSWCCA 324 at [42] by Latham J. In addition, recent analyses by Simpson J (as her Honour then was) in AB v R [2014] NSWCCA 339 at [44]-[59] and by Button J in Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220 at [26]-[36] provide support for that view.

2. [23]

   A different view has been taken, particularly by Basten JA and Hamill J, in Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 and more recently in Hordern v R [2019] NSWCCA 138 at [5]-[20] and [82] (Lonergan J not expressing a view as to her agreement or otherwise with that view).

3. [24]

   The challenge to the contested factual finding in the present case does not squarely raise this issue for the reasons which I shall give. I consider that whichever view is taken the ground is not made out.

4. [25]

   In Cheung v R (2001) 209 CLR 1; [2001] HCA 67 the High Court said at [14]:

5. [26]

   To see whether the finding on the contested factual issue is consistent with the jury’s verdict, it is necessary to consider the addresses made by the Crown and what the trial judge said in his summing-up.

6. [27]

   In the Crown’s opening address, the Crown prosecutor said that there were two elements to the offence. In relation to the first element, the Crown said that there was an assault:

7. [28]

   In the Crown’s closing address, the Crown prosecutor said:

8. [29]

   In the trial judge’s summing up, his Honour made the remarks set out at [16] above. His Honour then moved on to the second element which was that the assault was accompanied by an act of indecency. His Honour said that the assault and the act of indecency could be the same act. He continued:

9. [30]

   A little later on when discussing the question of inferences, his Honour said:

10. [31]

    His Honour was, therefore, correct in his ROS (at [13] above) when referring to the contested factual dispute by saying that the jury’s verdict was consistent with both interpretations.

11. [32]

    At the sentence hearing, his Honour had two possible explanations for what had occurred. The first was that the applicant had an erection and ejaculated on the complainant’s bottom and back. The second explanation was that he accidently urinated on the complainant’s bottom and back from a flaccid penis.

12. [33]

    The relevant part of the recorded interview with the complainant was as follows:

13. [34]

    The complainant was cross-examined, but at no point was she asked anything about that part of her evidence where she said that it hurt her when he pressed against her. That was, therefore, unchallenged evidence. In any event, the sentencing judge said that he accepted the complainant’s evidence which he found quite compelling.

14. [35]

    Counsel for the applicant relied on two pieces of evidence to cast doubt on the complainant’s evidence in this regard. The complainant’s mother said that when the complainant told her about what had happened she asked the complainant “Did it hurt?” and the complainant said “No”.

15. [36]

    Counsel also relied on the complainant’s father’s evidence when she told him about the event. His evidence was:

16. [37]

    To the extent that the evidence of the complainant’s mother and father differs from that of the complainant, his Honour, who saw all of the witnesses give their evidence, accepted the complainant’s evidence. Moreover, the question asked by the complainant’s father was a different one from the mother’s question. To ask if someone “hurt you” is to ask a question about pain or injury that endures beyond the act in question.

17. [38]

    His Honour found that the hurt that the complainant felt did not cease until the applicant moved away from her. One explanation for the hurt was that the applicant was pressing an erect penis against her bottom.

18. [39]

    The only evidence from the applicant was contained in two ERISPs. In the first, which was conducted at the applicant’s premises on 7 July 2016, the following was said:

19. [40]

    In his oral submissions, counsel for the applicant said that it was the police and not the applicant who first raised the issue of whether he may have urinated, by that question. That submission overlooks entirely that this interview was more than two months after the applicant himself first made the assertion to a number of doctors in April 2016, and to his wife which she conveyed to their son, the complainant’s father. By the time of this interview, the complainant’s mother had made a statement to the police following her conversation(s) with the grandparents.

20. [41]

    In the extended ERISP conducted at the police station on the same day, the following was said:

21. [42]

    Dr De Silva from Pacific Medical Centre at Blacktown gave evidence. The applicant had been seeing Dr De Silva for four or five years. When he was asked if he was the applicant’s regular doctor, Dr De Silva said that he saw the applicant most of the time. He said that the applicant first mentioned incontinence to him in August 2017. However, the notes from the medical centre from 2008 onwards showed that the first mention of a complaint of incontinence was made on 13 April 2016. This complaint was made to another treating doctor at the Pacific Medical Centre. The note said “Is concerned re nocturnal urinary incontinence”.

22. [43]

    Dr Pooviah was the doctor who saw the applicant on 13 April 2016. That was the first time Dr Pooviah had seen the applicant. Dr Pooviah was taken to a note by one of his colleagues at the medical centre on 20 April 2016 who wrote about the applicant, “Wants some treatment for the incontinence. No samples available. Dribble”.

23. [44]

    The evidence disclosed that the complainant told her mother on 9 April 2016 about what had happened when she slept over on the previous occasion in January 2016 with her grandfather. Her mother then rang the complainant’s grandmother and spoke both to her and to the applicant. Before she managed to speak to them, she had sent text messages to the grandmother who eventually rang her back.

24. [45]

    The complainant’s father said that he rang to speak with his mother when he found out about the incident, and he said in his statement to the police:

25. [46]

    The sentencing judge noted that the contents of the applicant’s ERISPs were somewhat vague and contained a number of apparent contradictions. He noted also that the computerised records of the Pacific Medical Centre indicated that the first time the applicant attended the Centre reporting symptoms of urinary incontinence was four days after he was first informed of the complainant’s allegations.

26. [47]

    If the traditional view from O’Donoghue is followed, it cannot be said in the present case that it was not open to the sentencing judge to come to the view he did about the factual issue. There was evidence to support such a finding.

27. [48]

    Even if the broader approach taken in Clarke and Hordern is adopted, I am not persuaded that error has been demonstrated in any factual finding made by the sentencing judge. In addition to the matters the sentencing judge took into account in coming to his view on the contested factual issue, there is the further point about the nature of the applicant’s incontinence. This emerges both from the evidence in the second ERISP and in what the complainant’s father informed the police that his mother had told him. This was evidence obtained in cross-examination by counsel for the applicant. It was that the applicant “dribbles in bed”. That, of course, is consistent with the note made by the doctor on 20 April 2016.

28. [49]

    The applicant’s evidence in his ERISP was, at first, that the incontinence only occurs when he was asleep and he wakes up wet. When asked if the urine would be on the sheets he said, “it wasn’t the sheets wet [sic]. It’s just my pyjama pants”. The amount of the urine was “just a little bit”. When he was asked if the incontinence had ever happened when he was awake he said yes, “Sometimes during the day”.

29. [50]

    No description or complaint by him to the doctors, to his wife or to the police suggested an episode of incontinence in the type of circumstances of his pressing a flaccid penis against the complainant’s bottom. Indeed, if the applicant had become incontinent in so doing, one might have expected him immediately to have removed himself from physical contact with the complainant, rather than urinating all over her as he claims happened. Moreover, if, as he claimed, he was wearing pyjamas, it is not easy to see from his descriptions of his incontinence, how he would have urinated all over the complainant and the bed.

30. [51]

    If this Court were to draw its own conclusions from the evidence, the only rational inference that could be drawn was that the applicant’s penis was erect and that he ejaculated over her. That inference would follow from the complainant’s evidence about the applicant’s “rude part” hurting her until he moved it away, and from the applicant’s own evidence, including reports to doctors and others, of the nature of his incontinence problem. I would reach such an inference beyond reasonable doubt. The sentencing judge made such a finding beyond reasonable doubt. No error is shown in his doing so.

31. [52]

    I would reject the ground of appeal.

32. [53]

    In my opinion the following orders should be made:

33. [54]

    HIDDEN AJ: I agree with Davies J.