RC v R; R v RC

1. [1]

   R A HULME J: In relation to the appeal against conviction, I am indebted to Wilson J for her review of the evidence and the issues in respect of each of the grounds. Her Honour’s analysis and conclusions reflect my own assessment and I have nothing useful to add.

2. [2]

   In relation to the Crown appeal against sentence, I also agree with Wilson J that, in the unusual circumstances of this case, the Court should refrain from resentencing, notwithstanding the clear manifest inadequacy of the sentence imposed by the primary judge.

3. [3]

   I agree with the orders proposed by Wilson J.

4. [4]

   HAMILL J: I enjoy the considerable advantage of having read the judgment of Wilson J in draft. I agree with the orders her Honour proposes and with her Honour’s reasons.

5. [5]

   As to ground 4, my review of the evidence and record of the trial leads me to the conclusion that it was open to the jury, in the sense explained by the High Court in various cases, [1] to accept beyond reasonable doubt LC’s account of the allegation in count 2. I agree with Wilson J that there is no reason in this case for the Court to review the audio/visual recordings that were watched and listened to by the jury. Her Honour’s approach is in conformity with the High Court’s decisions in Pell v The Queen and SKA v The Queen. I adopt the review of the evidence undertaken by Wilson J and agree that the evidence of complaint in the present case was important and compelling. I can add nothing to her Honour’s comprehensive analysis.

6. [6]

   As to the prosecution appeal against the inadequacy of the sentence, I agree that the imposition of a community corrections orders was a manifestly inadequate response to the objective gravity of the offending. I agree with the reasons provided by Wilson J and with her Honour’s judgment that an appropriate sentence would be 3 years imprisonment with a non-parole period of 1 year.

7. [7]

   I also agree with Wilson J that it is appropriate to exercise the “residual discretion” to dismiss the prosecution appeal in the particular and unusual circumstances of this case. The purpose of the prosecution appeal can be fulfilled by indicating that the imposition of a community corrections order was plainly wrong and unjust, and by reinforcing the need for sentencing Judges to obtain the necessary statutory reports before proceeding to sentence. The purpose of such appeals would not be advanced in any meaningful way by sending this 76 year old man with respiratory problems and other health issues to gaol for a minimum period of 12 months during the currency of the COVID-19 pandemic.

8. [8]

   WILSON J: The appellant, RC, was tried before the District Court sitting at Newcastle in November 2018 and July 2019, having pleaded not guilty to three child sexual assault offences. The indictment presented against him charged one count of indecent assault upon a person under 16 years of age contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 1), and two counts of sexual intercourse with a child under 10 contrary to s 66A(1) of the same Act (counts 2 and 3). The jury returned verdicts of not guilty with respect to counts 1 and 3 and guilty with respect to count 2. The appellant was later, on 27 September 2019, sentenced by his Honour Judge Smith SC to a community corrections order of 18 months duration, commencing on 27 September 2019.

9. [9]

   Pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) the appellant appeals and seeks leave to appeal against his conviction on count 2 of the indictment, advancing four (amended) grounds of appeal, as follows:

   1. (1)

      “The jury’s guilty verdict in relation to Count 2 on the Indictment was inconsistent with their [sic] not guilty verdicts in relation to Counts 1 and 3 on the Indictment and therefore an unsafe and unsatisfactory verdict resulting in a miscarriage of justice.

   2. (2)

      The jury, having returned verdicts of not guilty in relation to Counts 1 and 3 on the Indictment, His Honour, the trial judge, erred in failing and refusing to re-charge the jury in accordance with the decision in R v Markuleski [2001] NSWCCA 290.

   3. (3)

      His Honour, the trial judge, fell into error in delivering a Black Direction to the jury on two occasions but failing or refusing to, at the same time, give a further Markuleski Direction which, in the circumstances of the case, resulted in a miscarriage of justice.

   4. (4)

      The jury’s verdict of guilty in relation to Count 2 on the Indictment was unreasonable having regard to the evidence.”

10. [10]

    Pursuant to s 5D(1) of the Criminal Appeal Act, the Director of Public Prosecutions appeals against the sentence imposed upon RC for count 2, arguing that the sentence was manifestly inadequate.

11. [11]

    Because there is a challenge to the reasonableness and supportability of the conviction, it is necessary to set out the evidence adduced at trial in some detail.

The Crown Case Against RC

1. [12]

   RC is the paternal grandfather of LC, the complainant in each of the three counts charged by the Crown. The charged offences were alleged to have taken place in LC's home during the course of his evening bath on 10 October 2017.

2. [13]

   On the evening of 10 October 2017, LC's mother and older sister were absent from the family home; Mrs C having taken her daughter to a singing lesson. LC's father was absent overseas with work commitments. LC was left in the care of his grandfather, who was visiting the C family home to celebrate LC's sixth birthday the following day.

3. [14]

   The appellant gave LC his bath, during the course of which it was alleged that he indecently assaulted him by rubbing his genitals (count 1), and then digitally penetrated the complainant's anus twice in quick succession (counts 2 and 3).

4. [15]

   After the appellant left the C family home the following day to travel interstate, LC told his mother what had happened. Mrs C contacted her husband and told him about the allegation. Mr C telephoned the appellant and confronted him with LC's allegation, which was strongly denied. Mrs C subsequently took LC to a doctor, and the matter was referred to police.

5. [16]

   On 13 October 2017 officers with the Joint Investigation Response Taskforce (or "JIRT") interviewed LC over two discrete intervals, with the interviews recorded audio-visually. These recordings (marked for identification, or “MFI”, 3) became the bulk of LC's evidence in chief at the appellant's trial, pursuant to ss 306S and 306U of the Criminal Procedure Act 1986 (NSW).

6. [17]

   In his first JIRT interview on 13 October 2017, six year old LC told the interviewing officer that Grandpa R, the appellant, visited his home, having arrived before his birthday, and leaving after it. Also at home for LC’s birthday were LC’s mother and sister, BC.

7. [18]

   LC said that, on his birthday, he and Grandpa R had “done balloons”, and played cards and motorbikes. He was asked if he had done anything with Grandpa R that he hadn’t liked, and responded “No, nope”. LC said that the appellant had bathed him but, when asked to tell the interviewing officer what had happened during the bath, he said “Um, I don’t know. I don’t know”. He went on to say that he did not remember, and then that “I just don’t want to talk about it” because he did not remember.

8. [19]

   By reference to a diagram of happy, sad, scared, angry and other faces, the complainant said that being asked questions about the appellant made him angry. Again by reference to the diagram of faces, LC said that he had been sad when bathed by the appellant. When asked why, he responded, “I don’t know, I don’t know”.

9. [20]

   After 18 minutes of questioning, the interview was suspended. Remaining in the company of another JIRT officer, LC was able to have a drink and a break for a little over 20 minutes. The interview then continued.

10. [21]

    The interviewer asked the complainant about having visited the doctor recently. LC agreed he had seen a doctor, and said that he talked to the doctor “about grandpa […] washing me in the bath”. The complainant continued:

11. [22]

    LC went on to tell the interviewing officer that the appellant “stick his finger up my butt”, something he said he told his mother about “when I got out of the bath”. He said that it occurred before his birthday [on 11 October]. He said that his grandfather touched his “back private” which was used for “pooing”, with his finger going inside. When asked how that had made him feel, the complainant said it made him angry, because the appellant “did it twice”. He said:

12. [23]

    The complainant said that it hurt. He did not say anything to his grandfather, as “everybody was asleep and I didn’t want to yell”.

13. [24]

    LC said that his grandfather also touched his “front private”, being the part used for “weeing”, with his hand. He said that he did not say anything to the appellant because his sister was asleep.

14. [25]

    The complainant was asked who was at home and said that only he, his grandfather, his dog, and his cat were at home, as his mother had taken his sister to dance. He thought that they were away for “two minutes”. He subsequently said his sister was asleep on another night.

15. [26]

    The complainant said that after the bath he dried himself and put on pyjamas. He then had dinner and dessert with his mother, sister, and grandfather, and went to bed. The next morning, his sixth birthday, he went out for breakfast with his grandfather, who then took him to school.

16. [27]

    LC said that he told his mother “what grandpa did to me” […] “when grandpa went home”.

17. [28]

    The remainder of the complainant’s evidence was taken as “pre-recorded evidence” pursuant to clauses 84 and 85 of Division 2 of Part 29 of Schedule 2 to the Criminal Procedure Act. The evidence was adduced before Judge Girdham SC sitting without a jury, on 2 November 2018 at Newcastle District Court. By that date, the complainant was aged a little short of 7 years and 2 months. He was accompanied in the remote witness room by a witness intermediary (or “children’s champion”), pursuant to clause 90 of Schedule 2.

18. [29]

    The trial judge asked some general questions of the complainant, and on the basis of the answers given to those questions, her Honour determined that, although LC displayed knowledge of the meaning of “truth” and “lies”, his evidence would be taken on an unsworn basis, in accordance with s 13 of the Evidence Act 1995 (NSW).

19. [30]

    The complainant gave some short evidence in chief, additional to his interview with JIRT. He confirmed that he had told the police the truth in his interview, but said there was something that he had gotten wrong. He told the court that his sister had gone dancing as he had said, but that he had forgotten to say that she went to his school for dancing.

20. [31]

    LC identified a document showing a colour coded three day timeline, which was marked for identification 2. He had drawn some pictures on particular days of the timeline, such as a bath drawn on the red coloured section for 10 October 2017, and a birthday cake for the green coloured block representing his birthday on 11 October 2017. The third section was coloured blue and represented the day after the complainant’s birthday.

21. [32]

    The complainant also identified the “faces diagram” he had referred to when speaking to the JIRT officer on 13 October 2017, the diagram becoming Exhibit (“Ex.”) 1 in the trial; and some body diagrams upon which he had circled the private part used for weeing and the private part used for pooing. This became Ex. 2.

22. [33]

    LC was asked by the Crown Prosecutor about telling his mother about what the appellant had done. He said that he had told his mother “about grandpa putting his finger up my privates” but not about the touching of his front private. He said he told his mother the truth.

23. [34]

    After a short break the complainant was cross-examined by counsel for the appellant (also counsel in the proceedings before this Court). His evidence was interspersed with regular short breaks.

24. [35]

    The complainant said that he remembered having a birthday cake the night before his birthday because his grandpa, who was visiting, had to go home the next day. He was shown eight photographs taken by the appellant of him and his family with the cake (Ex. 3), and then a further two similar photographs (Ex. 4).

25. [36]

    He said he ate cake with his mother, sister, and grandpa, and then went out riding on his pushbike. He was wearing his football training shirt at the time.

26. [37]

    As to the bath, the complainant said that he had been sitting down in the bath; he denied ever standing up whilst bathing. He said the bath happened first, then he rode his bike, then he came inside and had dinner and cake. He was asked if he was in pain when riding his bike and eating dinner and said that he was not. It had not hurt him to sit on his bike.

27. [38]

    Four digital audio-visual recordings were shown to the complainant, each depicting the complainant in some activity on the night of the birthday dinner (10 October 2017). The first recording was of the complainant riding his bicycle; he confirmed that he had not been in pain at that time. The next two recordings were taken during and around the time of dinner, and again the complainant said he had not been in pain. In the final recording the complainant was shown as he played with a toy helicopter; he said he had been happy when playing. The recordings became Ex. 6.

28. [39]

    The complainant said that, the following morning, he had gone out for breakfast with his grandpa. A photograph of him taken at breakfast became Ex. 5. The appellant left the C home that day.

29. [40]

    LC confirmed that he had talked to his mother about what the appellant had done after the appellant had left for his own home. He told counsel for the appellant that he hadn’t liked his grandpa washing him [in the bath], because he didn’t want him to touch his privates. He said that it had made him feel uncomfortable when his grandpa bathed him. His grandpa washed his front private, or “doodle” slowly. He had told his mother about grandpa putting “his finger up my private”. He was challenged on that evidence:

30. [41]

    The complainant was asked where his mother and sister were at this time and answered, “They were on the couch”. He was asked why he had told police in the JIRT interview that they were not at home, and answered, “Because my sister had to go to dance”. He agreed that it would be wrong to say that his sister had been asleep, and denied ever having told anyone that his mother and sister were both asleep when the appellant had bathed him.

31. [42]

    The complainant did not remember having seen a doctor.

32. [43]

    At that point the complainant told the trial judge that his ear was hurting, and the witness intermediary noted that the complainant had been in pain from his ear when chewing food earlier. After a short break, the cross-examination continued.

33. [44]

    The complainant was asked how many times the appellant had “put his finger where the poo comes out”, responding, “He pulled it out and then he put it back in”. He confirmed it was two times. He was again challenged on that evidence:

34. [45]

    He was also challenged about his evidence of having put on pyjamas after his bath, with counsel reminding him that in the photographs of him riding his bicycle and at dinner he was wearing a football shirt. LC insisted that he had worn his football shirt to bed. After a series of questions about whether or not he had worn his soccer shirt to bed, or had ever denied having done so, he was asked:

35. [46]

    After a request from the trial judge to change the form of the questions to avoid complex concepts, the complainant maintained that he had worn his soccer shirt to bed on the night of the bath. He was not sure if he had told the Crown Prosecutor in a conference the previous day that he had worn pyjamas to bed that night.

36. [47]

    Counsel put the accused’s case to the complainant in this way:

37. [48]

    The complainant was then excused.

38. [49]

    The remainder of the trial was conducted before his Honour Judge Smith SC and a jury of twelve, commencing on 22 July 2019, and concluding on 29 July 2019.

39. [50]

    On 22 July 2019, the recording of the complainant’s interview with the JIRT officer in October 2017 was played to the jury, as was the recording of his evidence in chief given on 2 November 2018. The recording of the cross-examination was played to the jury the following day, 23 July 2019. The exhibits tendered at the time the complainant gave his evidence were all in evidence before the jury.

40. [51]

    After the evidence was played, a document was tendered (as Ex. 10) in which the Crown disclosed a statement made by the complainant to the Crown Prosecutor during a conference held on 1 November 2018. The complainant had told counsel for the Crown that at the time of the bath:

41. [52]

    Mrs C gave evidence before the jury over 23 and 24 July 2017. She said that on the evening of Tuesday 10 October she took her daughter to a singing lesson. The complainant was left at home with the appellant. Mrs C said that the singing lesson was of an hour’s duration, with the drive to the lesson taking about 20 to 25 minutes each way. Mrs C and BC got home a little after 7pm.

42. [53]

    When she arrived home Mrs C saw that LC was not in pyjamas; he was in clothes. She said “[LC] changes his clothes probably about ten times a day”. He had not eaten, so soon after, LC, BC, Mrs C and the appellant sat down to have dinner. Mrs C noticed that the complainant was restless and would not sit down. After the evening meal, they had a birthday cake that the appellant had made for LC.

43. [54]

    The following day, being LC’s birthday on Wednesday 11 October 2017, the appellant took LC to a local café for breakfast, with the arrangement being that he dropped the complainant to school after breakfast. Mrs C did not expect to see the appellant again that day, as she knew him to be returning to his own home interstate.

44. [55]

    That evening Mrs C took the complainant and BC to a restaurant for dinner. BC went to a dance class after dinner; Mrs C and the complainant later collected her and they drove home. At home, Mrs C turned the shower on for LC and he showered. He had been showering or bathing himself for some time, and Mrs C left him alone.

45. [56]

    She returned soon after and, after asking LC if he was clean, turned the shower off and got a towel for her son.

46. [57]

    Mrs C told the jury that “[LC] looked at me in the eyes and asked if he could – if he could tell me something”. She gave the following evidence:

47. [58]

    Later that evening, when putting LC to bed, Mrs C asked the complainant to tell her again what Grandpa had done to him in the bathroom. The complainant told her, “Grandpa put his finger in my bottom”. Mrs C thought that she asked her son if it still hurt, to which he responded “no, not really”. He said it had hurt when he had done a poo.

48. [59]

    Mrs C contacted her husband later that night. Subsequently, Mr C spoke with the appellant by telephone.

49. [60]

    On Thursday 12 October 2017 the appellant telephoned Mrs C, asking what had been said, and denying that whatever LC had said was true. She later received, on 13 October and 20 October 2017, two emails from the appellant. In the first email (Ex. 14), directed to Mr and Mrs C, the appellant said that his family was his “most valued asset” and he was “appalled and sickened to the core” at the allegations made against him. He gave an account of the complainant’s bath:

50. [61]

    The appellant referred to his distress at the situation, and repeated that “nothing untoward” had occurred. He attached a photograph taken by him of LC at breakfast on 11 October 2017, where the complainant appears to be eating happily.

51. [62]

    In the second email, of 20 October 2017, the appellant referred to the lack of any response to his first email, and observed:

52. [63]

    He again asserted that nothing untoward had occurred, and that LC had conducted himself in an absolutely normal manner with the appellant, both at the time and after the bath. The appellant expressed his great sadness at the prospect of being excluded from the lives of his son, daughter-in-law, and grandchildren because of a “gross misperception”.

53. [64]

    Mrs C took her son to see Dr Rallings on the afternoon of 12 October 2017, after LC had been to school.

54. [65]

    In cross examination, Mrs C said that the complainant had told her that the appellant had washed him “hard” or “rough” in the bath. She conceded that she had not used the word “rough” in the statement she made to police.

55. [66]

    She explained that, although she had said in her statement that LC had been in his pyjamas when she and her daughter returned home on 10 October 2020:

56. [67]

    This included his soccer shirt and shorts, which he frequently wore to bed.

57. [68]

    Mrs C was cross-examined as to the number of occasions on which LC said anal penetration had occurred:

58. [69]

    It was suggested to her that her account of what her son had said to her when he complained about the appellant could not be correct, as it was beyond the linguistic capacity of the six year old complainant. Mrs C maintained that LC had been “very capable” of speaking in those terms, and had done so.

59. [70]

    She said that LC had been “his normal self” when the family had dinner that night. When counsel, perhaps unwisely, asked her for her opinion of the veracity of the complaint made by LC, Mrs C said that her son had no knowledge of things of the nature he complained of, and she accepted his account as a truthful one.

60. [71]

    Dr Peter Rallings was the doctor LC was taken to see on 12 October 2017. Dr Rallings gave evidence on 23 July 2019. He had not seen the complainant prior to the consultation. He took a history from LC recorded in the form of a computer note that:

61. [72]

    The doctor clarified that the child did not say “anus”, using the word “bottom” instead; he did not recall the word used by LC for “grandfather”. He made the note after having asked the complainant in confirmation if his grandfather’s finger went inside his bottom, receiving a positive response.

62. [73]

    Dr Rallings rejected the assertion put to him in cross-examination that his note was “an amalgam” of what he had been told by both Mrs C and LC. He agreed that he had not made a note of a complaint of touching of the genitalia, and would have done so had that been said.

63. [74]

    Mr C gave evidence on 24 July 2019. He said that, when overseas in the course of his employment in October 2017, he received a telephone call from his wife, who was very upset. She told him that his father had molested their son.

64. [75]

    Soon after speaking with his wife, Mr C telephoned his father and “accused him”. Mr C said that his father denied it. Mr C did not speak with his father again, but he did receive a text message from him on 18 October 2017 in which his father wrote:

65. [76]

    In cross-examination, Mr C agreed that he had said in the statement he gave to police that his wife told him “very bluntly that my father had molested [LC] by putting his finger up his bottom”. He also agreed that his wife had not referred to “molestation of [LC’s] penis”, although he said he had been told about that at a later time.

66. [77]

    The final witness in the Crown case was Detective Senior Constable Matt Davis. Detective Davis was the police officer who interviewed the complainant on 13 October 2017, and had overall carriage of the police investigation.

67. [78]

    On 23 October 2017 the officer contacted the appellant by telephone and made arrangements for him to go to a regional police station, where he was arrested. The appellant was interviewed by other detectives at that location, and an audio-visual recording of the interview was tendered to the trial court. It was played to the jury.

68. [79]

    In the interview, the appellant described his close and involved relationship with his grandchildren. He said that he had frequently looked after the complainant and his sister when their parents were engaged with work or study. He referred to his relationship with LC as “beautiful”, and said that there had never been any problems between them, or in him caring for his grandson.

69. [80]

    On the evening of 10 October 2017 he said that he ran a bath for his grandson who got into the bath without a problem. He had been preparing dinner in the kitchen but went into the bathroom and washed the complainant, “probably a ten second wash”. This involved putting bath soap on his hands and:

70. [81]

    The appellant said that he returned to the kitchen and left LC to play in the bath for a time, before going back into the bathroom and getting his grandson out of the bath. LC dried and dressed himself, and then went out onto the lawn playing and riding his bike.

71. [82]

    There was a birthday party later with a cake the appellant had made for LC and “everything went fine”. The following morning Mrs C left early for work and LC came into the appellant’s bedroom and watched videos with him in bed. They got ready to leave, and then went to a café for breakfast, after which the appellant dropped the complainant at school.

72. [83]

    The appellant had to drive interstate that day, and left immediately.

73. [84]

    He said that when, two days later, he “got a phone call” he was “absolutely horrified”. He told police that what horrified him the most was that his son and daughter in law would believe that “it could happen. That I would do that”. He said:

74. [85]

    The appellant said that he was devastated. As to the allegation that he had digitally penetrated the complainant’s anus twice in quick succession, he said:

75. [86]

    He was asked whether he had washed LC’s buttocks and said that he had rubbed his hand “down under his, under his, in his crotch area” but asserted that:

76. [87]

    The appellant was asked why he didn’t wash the complainant’s bottom, and said:

77. [88]

    Soon after, the interviewing officer sought to clarify whether or not the appellant had washed the complainant’s buttocks:

78. [89]

    The appellant told the police that there was something “highly suspicious” going on, and speculated that LC may have been “fed” or “encouraged” to make “a litany of allegations”. He said the only thing that had been mentioned to him prior to the police interview was that he was alleged to have put his finger in LC’s bottom. Although nothing was said about the circumstances in which this occurred, the appellant told the police that he had assumed:

79. [90]

    He said that LC was standing in the bath when he washed his torso, sitting down to have his legs and feet washed. He did not use a wash cloth, but rather his hand and bath gel.

80. [91]

    In cross-examination before the jury, Detective Davis confirmed that the appellant, aged 76 at the time of the trial, had no criminal record. Having been shown a Family and Community Services (“FACS”) file entry, he confirmed that it recorded that, after the JIRT interview, LC had been asked by a FACS officer to nominate “safe people” and he had included the appellant in his list.

81. [92]

    There followed a great deal of cross-examination concerning the role of the JIRT interviewing officer (and evidently based upon the questioner’s misunderstanding of the nature of the role). The questions took the form of pointing to aspects of the complainant’s answers given in the JIRT interview, and demanding of the officer why he had allowed LC to say things which were “wrong”, “false propositions”, and “false memories”, without pointing out the “lies” to LC. In answer, Detective Davis endeavoured to explain to the cross-examiner the protocols for interviewing children.

82. [93]

    With that evidence, the Crown closed its case. There was no case for the appellant.

The Appellant’s Grounds on the Conviction Appeal

1. [94]

   Although four grounds are advanced, there is a degree of overlap between them. Ground 1 combines a complaint of inconsistent verdicts, with a complaint that the verdicts are “unsafe and unsatisfactory”. Since ground 4 also argues that the verdict returned with respect to count 2 is unreasonable, grounds 1 and 4 will be considered together.

2. [95]

   Grounds 2 and 3 make the same complaint – that there was error by the trial judge in failing to give a second “Markuleski” direction at a late stage of the trial, leading to a miscarriage of justice. They will also be considered together.

3. [96]

   These grounds complain of error because of the trial judge’s refusal to give a second Markuleski direction to the jury, a reference to the direction discussed in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. To understand the grounds, it is necessary to give an account of the trial proceedings after the evidence to the jury closed.

4. [97]

   After Detective Davis was excused and the evidence completed, the solicitor appearing for the Crown addressed the jury. Counsel for the appellant followed, commencing his address that same afternoon. The closing submissions for the appellant were concluded the following day, 25 July 2019. The trial judge summed up to the jury later that morning.

5. [98]

   In the course of the summing up, the jury were directed as to the need for separate consideration of each of the three counts brought against RC and, in that context, a Markuleski direction was given in unremarkable terms. The trial judge said:

6. [99]

   Immediately preceding those directions, the jury were told:

7. [100]

   His Honour went on to outline the elements of the three offences, and to give other relevant directions to the jury. There were no complaints about the summing up from either the Crown or the appellant, and neither party sought any additions or corrections to the directions given to the jury.

8. [101]

   The jury was sent out on verdict at about midday on 25 July 2019.

9. [102]

   Soon after the jury sent a note asking for the recordings of the complainant’s evidence (the JIRT interview and the pre-recorded evidence), trial transcript of Mrs C’s evidence and that of Dr Rallings, and the “police interviews” of Mr and Mrs C.

10. [103]

    The complainant’s evidence was played a second time to the jury in the courtroom, in the presence of the trial judge and the parties. The transcripts of the evidence of Mrs C and the doctor were provided to the jury; the jurors were told that they could not have access to the statements made by Mr and Mrs C to police because the documents were not in evidence.

11. [104]

    The jury returned to the jury room a little before 4.30pm. At the request of counsel for the appellant, the jurors were asked to sit on in case they “could make a decision that day”, but a note was received soon after advising the court that the jury wished to continue to deliberate the following day. The jurors were allowed to separate for the day, resuming deliberations on Friday 25 July 2019.

12. [105]

    On the afternoon of 25 July, a note was received from the jury asking:

13. [106]

    The trial judge reassembled the court and further directed the jury that no sexual element was required in proof of count 2 (and 3), in contrast to count 1, where such an element was required to be proved. It was made clear that the Crown had to prove that the penetration of the anus alleged in counts 2 and 3 was deliberate and not an accident. The jury returned to its deliberations.

14. [107]

    About an hour later a further note was received from the jury in which it was indicated that verdicts had been reached with respect to counts 1 and 3, but not in relation to count 2. The trial judge said that he would not take the verdicts that had been reached, but instead ask the jury to continue to deliberate.

15. [108]

    Neither party asked his Honour to take the verdicts for counts 1 and 3, but counsel for the appellant asked that the jury be given “a Black direction” and a further Markuleski direction. The Crown opposed a Markuleski direction, noting that it assumed “a particular outcome”. Counsel for the appellant conceded the point, saying:

16. [109]

    The jury returned to the courtroom and was given a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 relevant to count 2 in conventional terms. At about a 3:15pm the jury returned to the jury room.

17. [110]

    The court reassembled a little past 4pm, when the verdicts (of not guilty) were taken in relation to counts 1 and 3. The jurors were again allowed to separate, to return to continue their deliberations on Monday 29 July 2019.

18. [111]

    In seeking to be excused from attendance on 29 July 2019, counsel for the appellant asked the trial judge:

19. [112]

    The Crown argued against a further Markuleski direction, submitting that the directions already given to the jury were adequate to permit it to discharge its function. His Honour agreed to consider the application.

20. [113]

    At some stage on 29 July 2019, a further note was received from the jury stating that it could not reach a unanimous verdict on the remaining count. The trial judge told the solicitor for the Crown and the solicitor for the appellant that he intended to give a shortened Black direction. He said he would not repeat the Markuleski direction. The jury were subsequently given a modified Black direction, and asked to return to the jury room to further consider the matter.

21. [114]

    Another note was received some time later, in which the jury again said it could not reach a unanimous decision with respect to the remaining count. Some short evidence was taken from the foreperson, who did not think a unanimous verdict could be reached, even with the benefit of further time to deliberate. The jury was then directed as follows:

22. [115]

    The jury again retired. About 17 minutes later a verdict of guilty was returned to count 2. The transcript does not make clear whether it was a majority or unanimous verdict.

23. [116]

    It is against that background that the appellant’s complaint concerning the trial judge’s refusal to give a Markuleski direction for a second time falls to be considered.

24. [117]

    The appellant submits that this was a “word against word” case and, in circumstances where the verdicts returned by the jury to counts 1 and 3 “reflect a fundamental lack of confidence in the Complainant as a reliable witness”, a second Markuleski direction was required to reinforce the earlier direction, and highlight the “danger at that stage of inconsistent verdicts emerging”. It is submitted that the failure to repeat the direction led to or facilitated a miscarriage of justice.

25. [118]

    The flaw in the appellant’s argument is that the verdicts returned to counts 1 and 3 do not inevitably reflect a rejection of the complainant as a truthful witness. Nothing more can be taken from the verdicts of not guilty returned with respect to those counts than that the jury were not satisfied that the Crown had proven each of the elements for each of the charges to the very high criminal standard of proof.

26. [119]

    The jury had been directed in the course of the summing up to consider each of the three counts separately, and to do so carefully examining the evidence of the complainant to determine its reliability. In that context the jury were directed that, if there was a doubt about that leading to a verdict of not guilty on any count, it should have regard to that conclusion in its consideration of the remaining count or counts. The jury had expressed no confusion about those directions, and had sought no clarification of them. It must be assumed that the jury understood the directions, and followed them. There was therefore no proper reason to repeat or enlarge upon the direction.

27. [120]

    Had the trial judge singled out the Markuleski direction, alone of all the other directions given during the summing up, to give again, and to repeat it in conjunction with an exhortation to endeavour to return a verdict – the Black direction - the jury would probably have understood that it was being told to return the same verdict for count 2 as had been returned for counts 1 and 3. Directing the jury in that way at that stage of the proceedings would have been an error.

28. [121]

    There was no error in declining to give unnecessary emphasis to one of a range of directions properly given during the ordinary course of the summing up. Repetition was neither necessary nor appropriate.

29. [122]

    I would dismiss grounds 2 and 3.

30. [123]

    The first part of ground 1, the part that complains that the verdicts are inconsistent, is based upon the same mistaken assumption as that which underpins grounds 2 and 3; that, in returning verdicts of not guilty to counts 1 and 3, the jury must necessarily have rejected the complainant as a truthful witness.

31. [124]

    The appellant has approached LC’s evidence in the same way as he approached the cross-examination of Detective Senior Constable Davis; that is, by suggesting that any inconsistency in the complainant’s evidence is only explained as “a lie” or “a false allegation”. On that basis, the appellant contends that it was not open to the jury to return a verdict of guilty to count 2, in the face of its conclusions as to counts 1 and 3, and the doubt the jury had about the complainant’s reliability should have informed the verdict returned with respect to count 2.

32. [125]

    However, there are many ways in which an inconsistency in the evidence of a witness may be understood; a lie is only one possible explanation. That proposition was made clear in MFA v The Queen (2002) 213 CLR 606 at [35], wherein it was said that it is erroneous to conclude that, where there are multiple offences resting on the evidence of a single complainant, any verdicts of not guilty reflect the view that the complainant was untruthful or unreliable. It is not necessary for a jury to “accept or reject the lot” in such a case (at [89]), a jury being entitled to accept or reject a witness’ evidence, in whole or in part.

33. [126]

    The question of any inconsistency between the verdicts must be considered in a principled way, rather than by making and acting upon an assumption about a wholesale rejection by the jury of the complainant’s evidence.

34. [127]

    The test is one of logic and reasonableness, expressed by the High Court in Mackenzie v R (1996) 190 CLR 348 at 366; [1996] HCA 35 (quoting from R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep) with approval):

35. [128]

    In Roos v R [2019] NSWCCA 67 Gleeson JA set out a helpful summary of further authority on the point at [42] – [45].

36. [129]

    There is a logical and reasonable explanation for the differing verdicts returned with respect to counts 1 and 2, resting in the distinction between the element of sexual gratification that applied to the former, but not to the latter. The jury were directed by the trial judge in relation to count 1 that for an assault to be indecent the Crown had to prove beyond reasonable doubt that there was a sexual connotation or overtone to the act.

37. [130]

    The Crown case rested upon the jury inferring that there was a sexual purpose to the touching based upon the area of the complainant’s body touched, the penis; and upon what followed, the alleged digital penetration. However, it was open to the jury to accept that the appellant had touched the complainant’s penis as he described in his evidence but, given the context in which the touching occurred, that of an adult family member bathing a young child, not to accept beyond reasonable doubt that the touching was for a sexual purpose.

38. [131]

    There was no equivalent element to be proved with respect to count 2; the purpose of the digital penetration was irrelevant. If the jury accepted that the appellant had penetrated the complainant’s anus to any degree with his finger, and that it was done deliberately, the reason for the penetration did not matter.

39. [132]

    Although the appellant submitted in this Court that it was inconceivable that an adult would commit an act of that nature on a child without a sexual purpose, such cases are not unknown. In R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep) a teenage babysitter, in a fit of irritation with her 3 month old charge, and when affected by drugs, forced her finger into the child’s anus after the baby defecated in the bath. Similarly, in Trevor Essex v R [2013] NSWCCA 11, the applicant was convicted of an offence of sexual intercourse with a child under 10 years after he thrust the nozzle of a garden hose into the vagina of a three year old child, in the course of “hosing her down” after she had soiled her underwear.

40. [133]

    For count 2, as distinct from count 1, the jury had only to be satisfied of the deliberate act, and not of any sexual motivation attaching to it. The availability of a conclusion that the Crown had failed to prove a sexual connotation in relation to count 1 provides a logical and reasonable basis for the jury to acquit the appellant on that count.

41. [134]

    There is also a logical and reasonable basis upon which the jury could have distinguished between counts 2 and 3, that being the evidence of complaint.

42. [135]

    The complainant had told his mother only that the appellant had put his finger into his bottom; he did not say that it occurred more than once. Mrs C said she did not ask questions of her son. LC told Dr Rallings broadly the same thing as he told his mother. The doctor’s evidence was that, had LC said that this occurred more than once, he would have made a note of it. Each of Mrs C, Dr Rallings, and Detective Senior Constable Davis were cross-examined fairly aggressively on this aspect of the complaint evidence, and the fact that it was an issue in the trial would have been very plain to the jury.

43. [136]

    The jury had been directed that, if it was satisfied that the complaints to Mrs C and Dr Rallings had been made by LC, that evidence could be used as evidence independent of the complainant’s evidence about the alleged offence (pursuant to s 66 of the Evidence Act 1995 (NSW)). The trial judge said in summing up:

44. [137]

    The complaint and the circumstances in which it came to be made may properly have been regarded by the jury as highly significant.

45. [138]

    Firstly, the complaint to Mrs C was made at what might have been regarded as the first reasonable opportunity after the appellant had ended his visit to the C family home and gone away. Secondly, it was made to Mrs C as the complainant got out of the shower on 11 October 2017. This timing may have been regarded as meaningful: it is likely that LC may have been unwilling to speak to his mother when the appellant was still present; and it is possible that he would have thought about his bath of the previous evening when washing (albeit in the shower) the next evening. The circumstances of the complaint were such that the jury may have regarded it as compelling evidence.

46. [139]

    Further, the terms of the complaint to Mrs C, at least insofar as it could provide evidence supportive of count 2, might also have been regarded by the jury as compelling. LC told his mother that his grandpa had “hurt” him in the bath. He told his mother “Grandpa’s finger went in my bottom and I could feel it in my tummy.” He said he “didn’t know whether he could scream or cry because it was his grandpa”. The complainant’s assertion that he could feel what was done to him in his tummy may well have struck the jury as startlingly consistent with how a child penetrated in that way would likely experience the sensation. His evidence of internal conflict, expressed by his confusion at not knowing whether he could cry out because it was a loved and trusted adult who was hurting him, may also have struck the jury as having the ring of truth.

47. [140]

    This evidence, important in the context of the case, applied to count 2 but not to count 3, and is sufficient to provide a proper basis upon which the jury could acquit the appellant of count 3, but convict him of count 2.

48. [141]

    I do not conclude that the verdict returned in relation to count 2 cannot stand with the verdicts returned for counts 1 and 3. On the contrary, the distinction drawn between the allegations points to the jurors carefully examining the evidence available to support each charge and applying the law as the trial judge gave it to them to the facts as they found them to be. It is reasonable to conclude that, given the stronger case advanced by the Crown in support of count 2, the evidence for that count alone satisfied the jury of the appellant’s guilt to the very high standard of proof beyond reasonable doubt.

49. [142]

    That conclusion necessarily undermines the force of the appellant’s contention that the verdict on count 2 is “unsafe and unsatisfactory”, “unreasonable” and not supported by the evidence.

50. [143]

    In assessing the appellant’s arguments in that regard it is not for this Court to supplant the jury’s verdict with its own. The question is whether, having assessed the whole of the evidence that was before the jury, it was open to the jury to be satisfied of the appellant’s guilt to the criminal standard: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58]; SKA v The Queen (2011) 243 CLR 400; 2011 HCA 13 at [405] – [406]. In Pell v The Queen [2020] HCA 12, the High Court said, at [39]:

51. [144]

    That task is to be approached bearing firmly in mind the primacy of the jury in seeing the whole of the evidence placed before the trial court, an advantage that cannot be replicated by an appellate court. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court gave particular emphasis to the fundamental role of the jury in our system of criminal justice, at [65] – [66]:

52. [145]

    The appellant submits that the advantage a jury might ordinarily have over an appellate court is of lesser significance in this instance because, as a consequence of the operation of the Child Sexual Offence Evidence Pilot in operation at Newcastle District Court in 2019, the whole of the complainant’s evidence was seen by the jury in the form of pre-recorded evidence, and can be seen in the same way by this Court.

53. [146]

    That submission overlooks the importance of an assessment of the whole of the evidence in the context of the trial. Whilst careful examination of the evidence of the complainant is of considerable significance, the jury was rightly told by the trial judge to consider the whole of the evidence placed before it when deliberating upon the verdicts to be returned.

54. [147]

    This Court is in no position to replicate the experience of the jury in seeing the evidence of the complainant by viewing the recording of his evidence: the jury continues to have enjoyed a significant advantage this Court cannot have. The jury saw each witness give evidence; the jurors were able to hear tone and nuance in the spoken word that is not available to the appellate court with respect to the evidence of those witnesses whose testimony was not electronically recorded, and which a transcript can never reflect. The jury was able to observe the gestures and facial expressions of witnesses; and its members were able to observe the appellant’s responses to evidence as it was given.

55. [148]

    Although this Court was urged by the appellant to view the recording of the complainant’s evidence, I saw no proper purpose in doing so. Whilst there are some parts of the complainant’s evidence where no verbal answer was provided by LC to a question asked of him (in the JIRT interview), or where he demonstrates by gesture, those deficiencies in the transcripts were either supplied by description at trial, or by the Part A Summary of Evidence filed relevant to the appeal, the accuracy of which was not disputed by the appellant.

56. [149]

    It is not the law that the mere existence of a recording of a witness’ evidence is sufficient for an appellate court to view the recording. In Pell v The Queen, the High Court rejected a submission from the respondent that, where a recording exists, the court should view it. It said, at [36] – [37]:

57. [150]

    In support of the claim that the verdict is unsupportable, the appellant points to the complainant’s normality on the evening of 10 October 2017, when he rode his bicycle without experiencing pain in his stomach or bottom, when he ate cake happily, and played with his toys; and again on the morning of his sixth birthday, when he watched videos with the appellant and then accompanied him for breakfast without demur. The appellant argues that the complainant’s lack of pain, and his ordinary demeanour following the alleged assault, is sufficient to cause this Court to set aside the verdict returned for count 2.

58. [151]

    As to LC’s failure to complain of any ongoing pain, this is not persuasive on this aspect of the matter. The complainant only ever said that the act of penetration had hurt him in his tummy as it took place, and that it had later hurt when “doing a poo”. He had not said that the pain was on-going, or such as to make sitting down uncomfortable. That he was able to engage in ordinary activities without experiencing pain or discomfort does not advance the appellant’s case.

59. [152]

    As to the complainant’s ordinary manner after the bath, the appellant’s submission on that point fails to take into account the now well understood dynamics of sexual or other assault within a family context, a dynamic suggested by the terms of LC’s complaint to his mother: he didn’t know whether he could scream or cry because it was his grandpa. The jurors were entitled and urged to have regard in assessing the evidence to their own life experience and understanding of the ways in which people, including the very young, conduct themselves. That ordinary knowledge is likely to have included an understanding of the confusion of a child who suffers some hurt at the hands of a much loved authority figure; and of the capacity of all human beings to continue with a valued relationship and even take joy from it despite some harm having been done.

60. [153]

    Although stereotypes as to how a complainant “should” behave after having been assaulted are less prevalent than was formerly the case, it remains important, as Button J said at [533] of Khamis v R; Hussain v R [2018] NSWCCA 131, to take care not to impose stereotypical assumptions upon an individual complainant.

61. [154]

    In any event, these were matters raised by the appellant before the jury; the question of the significance of the complainant’s conduct on 10 and 11 October 2017 was a matter for the jury to assess. It remained open to the jury to accept the complainant’s evidence in support of count 2 as reliable.

62. [155]

    The appellant also points to inconsistencies in the complainant’s evidence as demonstrating that he was “clearly untruthful” and told “blatant lies”, but I would reject that strident language as demonstrating no more than a misunderstanding of the way very young children remember experiences and recall them later.

63. [156]

    Some of the “blatant lies” the appellant contends LC told can be readily understood as the product of confusion, misunderstanding, or tiredness (at the end of the complainant’s cross-examination). None of them dictate that LC should have been regarded as an unreliable witness with respect to the elements of count 2.

64. [157]

    The appellant asserts that LC’s references to both wearing pyjamas and his soccer shirt to bed exposed him as a liar, but it is more likely that the explanation for the inconsistency is in the complainant’s habit, on the evidence of Mrs C, of wearing day clothes to bed, and frequently his soccer shirt. In that sense, his soccer shirt was a part of his sleepwear, or pyjamas.

65. [158]

    The complainant’s references to his mother and sister being at home asleep at the time of the bath time incident, and also to being away at dancing, are matters to which the jury would have given attention, but bearing in mind the very young age of LC, inconsistency in peripheral details such as these may not have been seen by its members as particularly important. Such a conclusion is open.

66. [159]

    LC’s assertion that he told his mother about what the appellant had done after he got out of the bath is likely to have been understood by the jury as an issue of language use, rather than as a blatant lie as the appellant contends. LC made his complaint to his mother when he got out of the shower on the evening following the incident, rather than when he got out of the bath on the night of the incident, or when he got out of the bath on the following night. To a very young child, whether the evening washing ritual is named as a bath or a shower probably is of little moment; the concept is adequately expressed by the word “bath”. The jury was likely to have been constituted by at least some individuals with experience of the way in which young children communicate, and probably readily understood this. That LC complained to his mother of what had happened during the previous evening’s bath at his next bath-time might have been seen as a feature pointing to the truthfulness of the complaint.

67. [160]

    Finally, the appellant submitted that it was physically impossible for a man to insert his finger into the anus of a child who was sitting down in the bath. I do not accept that submission as having any foundation. Doubtless the jury also concluded that it would be an easy thing for an older, stronger individual to slide a hand under a seated naked child and digitally penetrate that child’s anus.

68. [161]

    What may have been more significant to the jury overall, applying its collective wisdom, life experience, and common sense, is not that a 6 and 7 year old child was not entirely accurate in his recollection of surrounding detail, but that a child of such a young age, disturbed by an act that had hurt him and which he was uncomfortable about, told his mother about it at the first reasonable opportunity and in compelling terms and, thereafter, consistently repeated the allegation, to a doctor, a police officer, and to a barrister, even when that barrister suggested to him that it had not happened.

69. [162]

    Having carefully examined the whole of the evidence as it is recorded on transcript, and looked at the exhibits, I regard the verdict returned by the jury as properly open on the evidence.

70. [163]

    It was open to the jury, informed by the appellant’s cross-examination of witnesses, and a closing address that highlighted all of the identified inconsistencies, asserted lies, and suggested improbabilities, to accept the complainant’s evidence, supported as it was by what the jury may well have regarded as compelling complaint evidence.

71. [164]

    In my conclusion, the verdict returned by the jury was open to it. I would dismiss grounds 1 and 4.

72. [165]

    Accordingly, I propose the following order:

    1. (1)

       Leave to appeal against conviction is granted.

    2. (2)

       Appeal dismissed.

73. [166]

    (In this appeal, the Crown is the appellant, and RC is the respondent. I will refer to each in that way.)

74. [167]

    After the jury returned its verdict of guilty to count 2 of the indictment the proceedings on sentence were adjourned to 27 September 2019. Having heard evidence and submissions that day Smith SC DCJ convicted and sentenced the respondent for count 2, the single count of sexual intercourse with a child under 10 years contrary to s 66A(1) of the Crimes Act. A community corrections order for a period of 18 months was imposed. That sentence was confirmed by the sentencing court on 8 November 2019.

75. [168]

    On that same day a Deputy Director of Public Prosecutions signed a Notice of Appeal against that sentence, raising one ground, that the sentence imposed was manifestly inadequate.

The Sentence Proceedings

1. [169]

   Although the matter proceeded to the verdict of a jury, the Crown tendered a statement of facts on sentence, which the respondent accepted as “very fair and consistent with what” the sentencing judge would find.

2. [170]

   The facts of the offence were given in that document as:

3. [171]

   Otherwise, the facts constituted a brief statement of the family relationships, and circumstances surrounding the offence.

4. [172]

   The evidence at trial had established that the respondent had no criminal convictions.

5. [173]

   The Crown submitted that the offending conduct fell in the “mid to upper low range” for offending of that kind, and referred the court to R v ND [2016] NSWCCA 103 for a useful statement of the relevant sentencing principles. It was submitted that only a full-time custodial sentence would adequately reflect the gravity of the offending.

6. [174]

   The respondent gave evidence before the sentencing judge on 27 September 2019. He gave his date of birth, which made him 74 years of age at the time of the commission of the offence, and 76 years of age when sentenced.

7. [175]

   He deposed that he had instructed his legal representatives to file an appeal against his conviction.

8. [176]

   The respondent said that, at the suggestion of his representatives, he had seen a clinical psychologist, Danielle Clout, and had given her an honest account of his circumstances. He had read the report prepared by Dr Clout and regarded it as correct in what was said of him. He also produced a summary obtained from his general practitioner, which set out the respondent’s current medication (although not the nature of the conditions each treated), and past treatment history.

9. [177]

   A series of photographs of the respondent’s grandchildren and great-grandchild were tendered, and the respondent described the close relationships he enjoyed with the children, and the reliance placed upon him by the parents of the children for assistance with childcare. He had on occasion taken some of his grandchildren overseas for holidays. The respondent said that he had never been accused of inappropriate conduct by any of his descendants. He said that he loved and was devoted to his grandchildren and great-grandchild and his relationships with them were very important.

10. [178]

    Counsel for the respondent asked him about his feelings at the prospect of being sentenced to a term of imprisonment. Noting that he felt “pretty bloody awful” about it, the respondent said this was because:

11. [179]

    The respondent tendered a report from Dr Clout dated 4 September 2019, and five character references.

12. [180]

    Dr Clout took a history from the respondent, which included a happy childhood growing up in a close and supportive family, and a good education, including university studies in law, and five years training for the priesthood. He abandoned his intentions of joining the ministry after developing romantic feelings for a nurse whom he had met when hospitalised with a severe viral condition.

13. [181]

    The respondent went on to have a career in the public sector, initially with the Department of Foreign Affairs in overseas missions, and later heading up various departmental agencies in Australia. He retired in 2004 and subsequently became active as a cyclist and motorcyclist, and in the care of his grandchildren.

14. [182]

    The respondent said that, although his relationship with his first wife had broken down, as a consequence of the pressure of his overseas postings, he had always been close to his children as they were growing up. He remained very close to his oldest son. The loss of his relationship with his youngest son, KC, and KC’s family, as a consequence of the allegation against him was tragic and distressing.

15. [183]

    A second marriage also broke down, although the respondent said he was close to his step-children, and the children of his step-daughter, whom he cared for from time to time.

16. [184]

    The respondent gave a history of drinking “too much”, a pattern that had increased following the return of the jury’s verdict.

17. [185]

    The respondent’s general health was reported to be good for his age, although he told Dr Clout that he suffered from chronic bronchitis, a blood pressure condition, and a cholesterol condition, all of which were managed with medication. He had been involved in a motorcycle accident in 2016 and is now “slower” as a consequence.

18. [186]

    RC had no history of psychological disorder other than ordinary distress at past sad life events, but felt that he had become depressed since the verdict against him was returned. He described feelings of lethargy, insomnia, and a lack of interest in things around him. Dr Clout felt that the symptoms were consistent with a moderate level of a Major Depressive Disorder, whilst an Alcohol Use Disorder was also likely to be present.

19. [187]

    Various psychometric tests were administered to the respondent, revealing that he tended to deny or minimise character flaws; was at high risk of alcohol abuse; and, although his scores on the “criminal orientation scale” were elevated, he was at low risk of re-offending.

20. [188]

    Dr Clout felt that the respondent would benefit from psychological counselling to address his depression and alcohol misuse. She considered a sentence of full-time imprisonment would be deleterious to the respondent, as it would deprive him of his community based coping mechanisms. She thought that the respondent’s age and health would make him more vulnerable in custody, and his depressive condition would cause him to experience a prison environment as more onerous than for an individual without that condition.

21. [189]

    The character testimonials, all from family members, spoke of the respondent in highly favourable terms, and were supportive of his proclaimed innocence.

22. [190]

    The respondent’s submission to the sentencing judge was that the matter should be assessed as at the very lowest end of the range of such cases, and a community corrections order would be an adequate sentence in all of the circumstances.

23. [191]

    The sentencing judge proceeded to impose sentence following the conclusion of evidence and submissions, giving his remarks ex tempore.

24. [192]

    His Honour set out the maximum penalty of life imprisonment that attaches to an offence contrary to s 66A(1) of the Crimes Act, and noted the applicable 15 year standard non-parole period (“SNPP”), which he accepted were the relevant statutory guideposts.

25. [193]

    The relevance of general deterrence in determining sentence for an offence contrary to s 66A(1) was noted.

26. [194]

    After referring to the facts of the offence and the respondent’s personal circumstances and, particularly, his former good character and close involvement with family, the sentencing judge concluded that the respondent “is very unlikely ever to re-offend”. The sentencing judge described the offence as “completely anomalous behaviour” and concluded that there was no need for an element of specific deterrence to be reflected in the sentence to be imposed.

27. [195]

    He thought that the respondent had favourable prospects of rehabilitation.

28. [196]

    The sentencing judge observed that the gravity of the offending was heightened by the fact that the offence had been committed in the complainant’s home, and at a time when the respondent had been in a position of trust and authority over the complainant. He concluded however, that the offence was committed spontaneously, and was of fleeting duration. Whilst the offence had caused some pain to the complainant, it was temporary. His Honour concluded that the evidence of the circumstances surrounding the offending “was inconsistent at least with any significant psychological harm” suffered to date by the complainant.

29. [197]

    Overall, his Honour found that the offending fell at “the very lowest level of objective gravity” and, taking into account the respondent’s personal circumstances, including his fear of harm in prison, and the loss of his relationship with the complainant and his family, concluded that “this is not an offence for which there is no alternative other than a sentence of imprisonment”.

30. [198]

    Although no assessment had been conducted by the Community Corrections Office, and no pre-sentencing assessment report had been prepared, the sentencing judge concluded:

31. [199]

    He specified 18 months as the appropriate term for a community corrections order (“CCO”) and noted that, although the respondent did not live in New South Wales, he was prepared to travel to the State to undertake the work component of the CCO which his Honour said he intended to impose as an additional burden to be borne as part of punishment.

32. [200]

    The parties drew his Honour’s attention to s 89(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “CSP Act”), which provides:

33. [201]

    The sentencing judge then determined that he would impose the CCO as indicated, and later impose a work service condition after receiving a report. He thereafter ordered:

34. [202]

    The matter was adjourned to 8 November 2019 for sentence part-heard before his Honour. The respondent entered the CCO on 27 September 2019.

35. [203]

    On 8 November 2019 a short assessment from the Community Corrections Service dated 22 October 2019 was before the court. It noted that, although the respondent was assessed as suitable to undertake community service work, that assessment could not be made as no agency was available to offer work to a convicted child sex offender.

36. [204]

    Although the transcript is incomplete, it appears that the Crown submitted both that the sentencing court was functus officio, as the respondent had entered the CCO on the date on which it was imposed; and that the sentence imposed was inadequate.

37. [205]

    Since no community work component could be imposed upon the respondent, the sentencing judge simply confirmed orders 1 and 2 of 27 September 2019.

38. [206]

    That is the sentence the Crown now appeals against.

The Crown’s Submissions on the Inadequacy Appeal

1. [207]

   The Crown acknowledged that, to succeed in its appeal, it had to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where judges at first instance have a wide discretion, on the basis that the discretion is exercised in accordance with proper principle: R v Dinsdale (2000) 202 CLR 321; [2000] HCA 54 at 325; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538 [58].

2. [208]

   The Crown argues that the sentencing process miscarried because the sentencing judge imposed a CCO which he intended to have a community work component to it without the necessary information to properly determine whether that penalty was both suitable and available. As it happened, the work component was not available and, although it is clear his Honour intended the respondent to bear that additional burden as part of the punishment imposed upon him, it could not be imposed.

3. [209]

   This led to the imposition of a sentence which, manifestly inadequate with a work component, became even more so without it.

4. [210]

   It was submitted that the sentencing judge’s characterisation of the gravity of the offence as at “the very lowest level” of objective seriousness was not open on the evidence, particularly bearing in mind that the offence caused the complainant pain, that it occurred in what should have been the safety of his home, that it was committed by a trusted adult, and that the complainant was, at almost 6 years old, significantly younger than the upper end of the age range (of just short of 10 years old) to which s 66A(1) applies. The erroneous assessment of the objective gravity of the offence led, in the Crown’s submission, to a sentence that failed to reflect the true gravity of the crime.

5. [211]

   The Court was referred to R v Qi [2019] NSWCCA 73, where Button J said of a different offence carrying a maximum sentence of life imprisonment, (at [72] – [74]):

6. [212]

   The Crown contended that no exceptional circumstances were identified here, and none existed. The respondent’s depressive condition was situational, having arisen as a consequence of his conviction, and there was no nexus to the offending. Whilst imprisonment could have an adverse impact on it, the reasons for that were unremarkable, that the respondent would be deprived of family, hobbies, and community based activities. He had some health concerns, but nothing of a dangerous nature, and nothing that could not be adequately treated in the prison system.

7. [213]

   By reference to sentencing statistics held by the Judicial Commission, and by other decided cases, the Crown argues that the sentence imposed upon the respondent is manifestly inadequate.

8. [214]

   The respondent originally focused on his own appeal. Limited argument was directed to the Crown’s appeal, and no evidence was placed before the Court to which regard might be had in the event the Court proceeded to re-sentence. Leave was given to him to provide that evidence after the conclusion of the hearing, and evidence and submissions were later filed with the Court.

9. [215]

   The respondent’s principal argument is that, should the Court be of the view that error occurred in the imposition of sentence at first instance, his advanced age and ill-health, in the face of the international medical emergency which is the present COVID-19 pandemic, would justify the Court in exercising the residual discretion not to re-sentence the respondent.

10. [216]

    The respondent relies upon an affidavit from Dr Saidul Ansary of 31 March 2020, together with a statement from NSW Corrective Services outlining its response to the COVID-19 pandemic.

11. [217]

    Dr Ansary is a respiratory physician who has treated the respondent since 2014, and reviewed his medical situation in light of the pandemic. The doctor notes that the respondent suffers from “bronchiectasis”, although no information is given (other than by way of submission) as to the nature and effect of that condition and, specifically, its impact on the respondent.

12. [218]

    Dr Ansary deposed that the respondent is included in the category of persons particularly vulnerable to COVID-19 infection and mortality due to his respiratory issues, systemic hypertension, kidney disease, and his advanced age. In a closed custodial setting there can be additional challenges in managing the risk of infection.

13. [219]

    The response of NSW Corrective Services to the pandemic is to acknowledge the specific risk of contagion for staff and inmates, and to set out measures intended to mitigate the risk. Changes have been made (from February 2020) to limit visitors to prisons (a group widely defined to include contractors and service providers), particularly from persons who may pose an increased risk of transmitting COVID-19, such as those recently returned from international travel. Since March 2020 all visits to inmates have been temporarily suspended, with telephone and audio-visual conferencing facilities made available instead. Screening is carried out on all new inmates to the prison system, and movement about and between prisons has been minimised.

14. [220]

    To date, no inmate in a NSW prison has been infected with the COVID-19 virus.

15. [221]

    The respondent submits that he is at greater risk of contracting COVID-19 than other prisoners if he is committed to the prison system, and faces the prospect if infected of a very poor outcome including the possibility of death. This feature, it is argued, should permit the Court to decline to interfere with the sentence even if error is established or, if a custodial term is imposed, to vary the statutory ratio in the respondent’s favour pursuant to s 44 of the CSP Act.

Consideration

1. [222]

   Even without turning to consideration of the specific ground of appeal advanced by the Crown it must be concluded that the sentencing exercise miscarried in the present case because of the imposition of a CCO, intended to have a work component, without an assessment report having been first ordered by the court.

2. [223]

   Division 4B of Part 2 of the CSP Act makes an assessment report mandatory prior to the imposition of some community based sentencing orders. The purpose of an assessment report is made clear by s 17B(2), which provides:

3. [224]

   It is for good reason that s 17D(4) provides:

4. [225]

   The importance of obtaining a report before imposing a community based order is reinforced by s 89(4).

5. [226]

   Had a report been obtained prior to the imposition of sentence in accordance with s 17C, which regulates when a report may be requested, his Honour’s consideration of “appropriate sentence options” would have been informed.

6. [227]

   There are practical reasons why it is important for sentencing courts to comply with s 17D(4) and s 89(4) of the CSP Act, reasons illustrated by this matter, where sentence was passed without any evidence as to the suitability of the respondent for a work condition, and the availability of work to him.

7. [228]

   This procedural irregularity resulted in a sentence that was lower than the sentence that his Honour clearly intended to impose, and one which the Crown argues is manifestly inadequate.

8. [229]

   The starting point for consideration of the ground of appeal advanced by the Crown is the maximum penalty that attaches to an offence of sexual intercourse with a child under 10 years – life imprisonment – and the SNPP which applies, a term of 15 years imprisonment.

9. [230]

   These legislative guideposts without more demonstrate the very grave view taken by the Parliament and the community of offences contrary to s 66A of the Crimes Act. Stern sentences are required in offending involving the sexual abuse of children to protect these most vulnerable members of our community. Children, and particularly young children, have little or no capacity to protect themselves against sexual assaults. The criminal justice system must supply that protection.

10. [231]

    In R v ND, a case dealing with an offence contrary to s 66A charged at a time when the maximum penalty applicable to it was a term of 25 years imprisonment, this Court (Payne JA, Price and Garling JJ) observed, at [38] – [39]:

11. [232]

    Regard must also be had to the sentencing principles of particular relevance to offences involving the sexual abuse of children. As Hoeben CJ at CL observed (with the agreement of Harrison and R A Hulme JJ), in EG v R [2015] NSWCCA 21 at [42]:

12. [233]

    For an offence contrary to s 66A, those principles, together with the applicable maximum penalty and SNPP, suggest that it could only be in the most extraordinary and unusual circumstances that a sentence of full-time imprisonment would not be imposed upon an offender.

13. [234]

    There were no extraordinary or unusual circumstances in the respondent’s case.

14. [235]

    As the Crown pointed out, there was nothing in either the facts of the offending conduct, or in the respondent’s subjective case, which justified the sentence that was imposed upon the respondent at first instance. That sentence is, in my conclusion, manifestly inadequate. It is so far below the range of sentences that could be justly imposed for an offence of this nature that it could tend to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders for the commission of serious sexual assaults upon very young children.

15. [236]

    To some extent the sentence was erroneously lenient because of the assessment made by the sentencing judge of the objective gravity of the offence. As a general principle, that is an assessment which is ordinarily best left to judges at first instance, particularly where sentence was preceded by a trial. In Mulato v R [2006] NSWCCA 282 Spigelman CJ said:

16. [237]

    Regrettably, this is a matter where the characterisation of the objective gravity was not open, and this Court must set it aside.

17. [238]

    There are a number of features of the offending which elevate the gravity of the offence beyond “the very lowest level of objective gravity”. The first is the age of the child; at 5 years, 11 months, and some days old the complainant was well below the upper age range encompassed by s 66A. A child of 5 or 6 years of age has even less capacity than a child of 9 years to understand the wrongness of an act of sexual intercourse, to defend him or herself from an assault, and to find the language to later make complaint. This is the vulnerability of the very young.

18. [239]

    Secondly, the offence caused some pain to the complainant, pain that was of a sufficient degree that he remembered it, and complained of it the following day to his mother. There was no suggestion in the evidence that the pain was on-going, or such as to lead to impairment or discomfort in the performance of ordinary activities, such as bike riding, but what was done to the complainant hurt him, and that must be taken into account. Thirdly, the offence was committed in the complainant’s home, a place where he was entitled to be safe from harm. Fourthly, the offender was someone to whom the complainant was entitled to look for protection. For an adult in a position of trust and authority to abuse that trust elevates the seriousness of the offence.

19. [240]

    An offence displaying all of these features is not one which could properly be assessed as at the lowest level of gravity.

20. [241]

    The absence of any evidence to establish a sexual motivation in the commission of the offence is a relevant feature to the determination of the objective gravity of the crime, and lessens it, although it cannot lead to the sort of assessment made by the sentencing judge in this matter. I have referred to Essex v R and to R v Dunn in the context of the conviction appeal. The principles each stand for are also relevant to the sentence appeal. In Dunn, Gleeson CJ said:

21. [242]

    Other features relevant to the assessment of gravity are, as the sentencing judge observed, the spontaneous and fleeting nature of the offence, and the fact that it was an isolated offence.

22. [243]

    In my assessment this is a serious offence, albeit one which falls considerably below a level of seriousness demanding the imposition of the SNPP. It should not be necessary to endeavour to express that conclusion by reference to a position within a range, or by resorting to mathematical terminology. In PK v R [2012] NSWCCA 263 McCallum J (as her Honour then was) said at [24] – [27] (with the agreement of Macfarlan JA and Price J):

23. [244]

    I respectfully agree.

Re-sentencing and the Residual Discretion

1. [245]

   Having found that his Honour was in error in imposing a sentence which was manifestly inadequate for this offence, it is now necessary to turn to the questions of re-sentencing, and the exercise of the Court’s residual discretion not to interfere.

2. [246]

   Crown appeals serve the purpose of clearly articulating the law, and laying down principles for the guidance and governance of sentencing courts: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1] and, at [36], where the High Court said:

3. [247]

   This is a case through which it is useful to clarify the gravity with which sentencing courts should view offences that carry a maximum penalty of life imprisonment, and a significant SNPP. This Court has frequently highlighted the need for stern sentences where children have been sexually assaulted, and s 66A has been considered on numerous occasions: see for example EG v R, at [42] – [43]; R v JJ [2019] NSWCCA 148 at [44] – [45]; R v Toohey [2019] NSWCCA 182 at [64] – [67]. It should be well understood that a sentence of anything less than full-time imprisonment must be exceedingly rare for an offence contrary to s 66A, and could only be available where there are wholly exceptional circumstances.

4. [248]

   A full-time custodial sentence was warranted in this matter: nothing else could adequately reflect the criminality of the offence, denounce it and, importantly, deter others who might commit such crimes against children.

5. [249]

   I have set out already the evidence relevant to sentence, including the material filed by the respondent as to his health, and the possible danger to him should he be incarcerated during a pandemic.

6. [250]

   Having regard to all of the evidence relevant to sentence, including the isolated and transitory nature of the offence, the fact that it was committed for a non-sexual (if unknown) purpose, and giving the respondent the benefit of his long years of good character, a sentence of 3 years imprisonment is appropriate. That sentence also takes into account the fact that the respondent has spent a period of time subject to the CCO imposed upon him at first instance.

7. [251]

   The respondent’s age and respiratory condition, particularly in the present days of a pandemic, would justify a finding of special circumstances pursuant to s 44(2) of the CSP Act, to permit a departure from the ordinary statutory ratio. In the unusual circumstances that prevail in this matter, I would impose a NPP period of 1 year imprisonment, with an additional term of 2 years.

8. [252]

   Announcing a sentence of 3 years imprisonment serves the primary purpose of a Crown appeal against sentence, that being to lay down principles for the governance and guidance of sentencing courts.

9. [253]

   The Court retains a residual discretion not to interfere with respect to the sentence, even though the sentence is erroneous. This is a matter in which the discretion should be exercised.

10. [254]

    I am mindful of the present medical emergency. Although the respondent’s evidence was silent on this point, it may be readily accepted that the experience of serving a custodial sentence will be more onerous for him than is the general experience. It is reasonable to conclude that the respondent, a man of advanced age who suffers from a long-term bronchial condition, will experience a level of stress, anxiety, and even fear at the potentially fatal consequences to him were he to be infected with the COVID-19 virus in prison, that would not be the case for a younger, fitter, prisoner.

11. [255]

    In the unusual circumstances of this case I would not proceed to re-sentence, despite the clear inadequacy of the sentence imposed at first instance.

12. [256]

    Accordingly, I propose the following order:

    1. (1)

       Crown appeal against inadequacy of sentence dismissed.