RP v R

1. [1]

   JOHNSON J: I have had the advantage of considering, in draft, the judgments of Davies J and Hamill J. I agree with the reasons and orders proposed by Davies J.

2. [2]

   I wish to make some short comments concerning the conviction appeal on count 3, as to which their Honours have reached different conclusions.

3. [3]

   Both Davies J and Hamill J approach the issue upon the basis that the finding on doli incapax concerning count 2 has some bearing with respect to count 3 (see [78], [145], [160]). I agree with this approach.

4. [4]

   It falls to the Crown to rebut the presumption of doli incapax to the criminal standard on each count. However, the context in which the issue arises is important. Where, as here, there are several counts and the presumption is rebutted on an earlier count (count 2), this finding may be taken into account where a similar offence is alleged to have occurred weeks later (count 3).

5. [5]

   This is not to apply some automatic consequence, the approach accepted in the District Court. Rather, it acknowledges that the doli incapax issue will be considered in the context of the developing understanding of a child which takes into account the child's previous acts, knowledge and experiences (such as in this case, count 2).

6. [6]

   The finding on count 2 means that the Applicant was aware that what he did on that occasion was seriously wrong. A few weeks later (see [28] cf [157] [160]):

7. [7]

   Count 3 involved not only the conduct giving rise to the offence, but the clear manifestation to the Applicant, by his attempted flight, that the Complainant did not want to participate in these acts. The Applicant took hold of the Complainant and put him face down on the floor.

8. [8]

   Although some features present in count 2 are not present in count 3, the circumstances attending the Applicant's act, and the manner in which it was done, establish that the Applicant was aware, as with count 2, that what he did was seriously wrong.

9. [9]

   For these reasons, together with those expressed by Davies J, I agree with his Honour concerning the resolution of the conviction appeal on Count 3.

10. [10]

    DAVIES J: The Applicant stood trial at Wagga Wagga District Court on 27 August 2014 on an indictment containing four counts of sexual assault alleged to have been committed upon his younger half-brother TP from October 2004 to July 2007 as follows:

11. [11]

    The Applicant pleaded not guilty to all counts on the indictment. The trial proceeded by way of judge alone (by consent of both parties) before his Honour Judge Letherbarrow. The sole issue at trial was that of doli incapax. The Applicant was aged between 11 years 6 months and 12 years 3 months at the time of the offending.

12. [12]

    A verdict of acquittal was directed for count 1.

13. [13]

    In a judgment delivered on 28 August 2014 the Trial Judge found that the Crown had rebutted the presumption of doli incapax for counts 2, 3 and 4 and he found the Applicant guilty in respect of those counts.

14. [14]

    On 5 December 2014 his Honour sentenced the Applicant as follows:

15. [15]

    The overall sentence was two years and five months imprisonment with a non-parole period of 11 months commencing 5 December 2014 and expiring 4 November 2015.

The procedure at the trial

1. [16]

   As noted the Applicant elected to be tried by a judge alone. The Crown consented to that course, the judge was satisfied that the Applicant had received legal advice and understood the consequences of that election and his Honour therefore granted leave.

2. [17]

   The trial proceeded with the tender of documents. No oral evidence was called. The Complainant’s evidence was unchallenged. The evidence consisted of the following:

3. [18]

   At the close of the Crown case the Trial Judge acceded to a submission made on behalf of the Applicant that there was no case to answer in relation to count 1. His Honour entered an acquittal in relation to that count. His Honour also determined, consistently with that acquittal, that the statement of the Applicant’s mother ([17](b) above) could no longer be relied upon for the later counts.

4. [19]

   It was accepted by counsel appearing for the Applicant at the trial that if the Trial Judge found that the presumption of doli incapax had been rebutted beyond reasonable doubt by the Crown in relation to count 2, this would mean that such presumption had also been rebutted beyond reasonable doubt in relation to counts 3 and 4 as it was accepted that they occurred later in time.

5. [20]

   The Trial Judge noted that the only issue for determination, as agreed between the Crown and those appearing for the Applicant, was one of doli incapax. The Applicant did not argue that the other elements of the three offences in counts 2, 3 and 4 had not been proved beyond reasonable doubt on the evidence tendered by the Crown and which was admitted without objection and without challenge.

6. [21]

   The Applicant now seeks leave to appeal on the following grounds:

Factual circumstances of the offending

1. [22]

   There was some doubt about exactly when each of the offences occurred. It was common ground, and his Honour accepted, that he should find that each offence took place at the earliest date averred. Accordingly, for counts 2 and 3, the offending occurred when the Applicant was approximately 11 years 6 months, with count 4 occurring when he was approximately 12 years 3 months old. On the same basis the Complainant was aged approximately 6 years 9 months at the time of counts 2 and 3, and 7 years 5 months at the time of count 4.

2. [23]

   By reason of the approach adopted by the Trial Judge with the agreement of counsel, it was only necessary for his Honour to make factual findings in relation to count 2. His Honour found the following facts.

Count 2

1. [24]

   The Applicant was at home with the Complainant and two of their other siblings. The Applicant, who was the eldest, had been left in charge of them as their father was at work and their father’s girlfriend C was at the shops. When the Applicant let the Complainant “play with his stuff”, a fight broke out between them, and the Applicant locked the Complainant in a room which caused the Complainant to demand to be let out. The Applicant then let himself into the room and said to the Complainant that if “you want to come out, you gotta let me do this to ya …”. The Applicant then pulled his pants down and put a condom on his penis at which stage the Complainant “kept saying ‘no, [RP], no’…”.

2. [25]

   The Applicant then grabbed the Complainant and “threw” him on a bed and then pulled the Complainant’s pants including his underpants down. He then inserted his penis into the Complainant’s anus and put his hand on or around the Complainant’s mouth whilst having intercourse with him. The Complainant said that this hurt and he was “crying” and that he “just kept on trying to tell [the Applicant] to stop but he had his hand up over me mouth and wouldn’t stop…”

3. [26]

   The Complainant said that the act of intercourse went for “a long time, it felt like a long time” and did not cease until he heard C calling out for help to get the groceries out of the car, at which point the Applicant withdrew his penis. He commenced to put his clothes on during which time he said to the Complainant “don’t say nothing”.

4. [27]

   In relation to counts 3 and 4, the following summary is taken from the Trial Judge’s Remarks on Sentence.

Count 3

1. [28]

   The events which gave rise to count 3 occurred a few weeks after count 2 at the place of work of the Applicant’s and the Complainant’s father, GP. That place of work was the treatment works at Wagga Wagga.

2. [29]

   GP took the Complainant, the Applicant and his daughter K to his place of work but he left them alone whilst he went to check some ponds and valves. This ordinarily took about one hour.

3. [30]

   After GP left, the Applicant asked the Complainant to come into an office where there was a pile of workmen’s clothes on the floor. Whilst in the office the Applicant took his pants down so he could “get his penis out”. On seeing this, the Complainant ran towards the door but the Applicant stopped him. The Complainant also called out for K but the Applicant grabbed him and put him on the floor face down on the pile of clothes.

4. [31]

   The Applicant then pulled the Complainant’s pants down and commenced to have penile/anal intercourse with him which he said continued for two to three minutes. It stopped when he heard their father returning on a motor bike.

Count 4

1. [32]

   These events occurred after GP had moved to a house at Karingal with his girlfriend C, probably a few months after the events that gave rise to count 3.

2. [33]

   On this occasion the Complainant was watching a motor bike DVD with the Applicant whilst their father was out of the room. The Applicant put his hand on the Complainant’s penis on the outside of his clothing and rubbed it for approximately five minutes. The Complainant then said that he was “starting to get sick of this” and the Applicant stopped.

Legal principles

1. [34]

   The principles are for the most part conveniently summarised in a judgment of Hodgson JA (with whom Adams and Johnson JJ agreed) in BP v Regina, SW v Regina [2006] NSWCCA 172:

2. [35]

   As paragraph [29] of BP makes clear, the act charged is not without some relevance in determining whether the presumption has been rebutted. There must, however, be more than proof of the act charged.

3. [36]

   In C (A Minor) v Director of Public Prosecutions [1996] AC 1 Lord Lowry (with whom the other Lords agreed) said at 39:

4. [37]

   In R v CRH (Court of Criminal Appeal (NSW), 18 December 1996, unrep) Newman J (with whom Smart and Hidden JJ agreed said):

5. [38]

   The passage from C was approved and followed Hoeben CJ at CL in RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520 at [12]-[16].

Grounds 1 and 2: Unreasonable verdicts

1. [39]

   This ground raises a significant matter for consideration, namely, how this Court should go about dealing with a ground relating to an unreasonable verdict in a judge alone trial. The matter is highlighted particularly in the present appeal because, not only was the trial a judge alone trial but it proceeded with no oral evidence. Although a DVD of the Complainant’s evidence was tendered, the Trial Judge was urged only to read the transcript of that interview on the basis that there were no issues of credibility in the trial. It seems that the Trial Judge acceded to that suggestion.

2. [40]

   Although it is clear that the principles derived from M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 and SKA v R [2011] HCA 13; (2011) 243 CLR 400 apply also to an appeal following a trial before a judge sitting alone (W v R [2014] NSWCCA 110 at [151]), it has not been clear precisely how this Court performs that task where a judge alone trial has taken place..

3. [41]

   The High Court has recently considered the matter in Filippou v The Queen [2015] HCA 29. The joint judgment of French CJ, Bell, Keane and Nettle JJ referred at [9] to Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 where it was said that each of the three limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) is capable of application to a judge alone trial. They noted that the Court left open in Fleming the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all one way or where there has been a misdirection leading to a miscarriage of justice.

4. [42]

   In Kurtic v R (1996) 85 A Crim R 57 at 60 Hunt CJ at CL (with whom Grove J and Barr AJ agreed) said, in reliance on M v The Queen, that the test to be applied by this Court on the ground that the verdict was unsafe and unsatisfactory is the same whether the case was heard by a judge alone or with a jury. His Honour went on to say:

5. [43]

   Those principles and others from Kurtic were challenged by the appellant in Fleming. However, the appeal in Fleming was upheld on a ground that concerned a failure of the Trial Judge to comply with the earlier equivalent of s 133(3) of the Criminal Procedure Act 1986 (NSW). Whether the approach to the unreasonable verdict ground was correctly stated by Hunt CJ at CL in Kurtic was not determined, as was noted by this Court in Hedges v R [2011] NSWCCA 263 at [48] and as the joint judgment in Filippou has now acknowledged.

6. [44]

   It is not clear from the passage from Kurtic set out above if Hunt CJ at CL was suggesting that the approach to consideration of whether a verdict was unreasonable in a judge alone trial was confined to the matters enumerated (no evidence to support a finding, evidence all one way, judge misdirecting himself or herself). That appears to be how the High Court in Fleming at [26] understood what his Honour was saying. In any event, later authority in this Court suggested a much broader approach, namely, to ask the question whether, upon the whole of the evidence, it was not open to the trial judge to have been satisfied beyond reasonable doubt of the Applicant’s guilt: R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [3]-[4]; Hedges at [48]; Sabel v R; R v Sabel [2014] NSWCCA 101 at [145]-[148]; see also W v R at [151].

7. [45]

   The joint judgment in Filippou said:

8. [46]

   The Applicant pointed to what was said in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 to submit that the High Court there suggested that this Court could move beyond its function as a court of error. Accordingly, this Court was in the position where it could draw its own inferences from the evidence and, effectively, substitute those inferences for those drawn by the Trial Judge.

9. [47]

   It was made clear in Filippou that this was not the correct approach. The joint judgment referred at [44] to [47] to the fact that McClellan CJ at CL in this Court in Filippou v R [2013] NSWCCA 92 identified error in the reasoning of the trial judge but was not persuaded that the trial judge’s conclusion of guilt was erroneous. The joint judgment then said:

10. [48]

    For a verdict to be unreasonable it is not enough that review of the evidence demonstrates that it was possible for the tribunal of fact to reach a different conclusion: Lazaris v R [2014] NSWCCA 163 at [65]. As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]:

11. [49]

    I do not consider that Weiss provides support for the Applicant’s submission. Weiss was a case concerned with the application of the proviso in the Victorian equivalent of s 6(1) of the Criminal Appeal Act 1912 (NSW). The reference to courts of criminal appeal moving beyond functions apt solely to a court of error appears at [23] where the Court’s judgment made reference to the earlier Victorian Act that made “elaborate and detailed provisions” for supplemental powers of the court in criminal appeals. Those provisions have no counterpart in the Criminal Appeal Act 1912 (NSW).

12. [50]

    The relevance of Weiss for the present matter appears at [41]-[43] where the joint judgment was stipulating how the task of considering the proviso was to be undertaken:

13. [51]

    Given the similarity of approach to the two tasks referred to at the outset of [41] of Weiss, it is reasonable to substitute “the verdict was unreasonable” for “substantial miscarriage of justice” at [42].

14. [52]

    The significant difference between a trial with a jury and a judge alone trial is that the judge is obliged to make findings of fact and to identify the principles of law applied by the judge: s 133 Criminal Procedure Act 1986 (NSW). The reasoning the judge has employed to reach the relevant findings is exposed to examination and analysis in the way an inscrutable jury verdict cannot be. The reasoning will identify what matters have been considered by the judge in making any finding. That enables this Court to determine at least whether there is no or insufficient evidence to support a finding or that the evidence was all one way or has misdirected himself or herself on a matter of law.

15. [53]

    A determination of whether a child aged between 10 and 14 years is doli incapax is a question of fact for a jury. It must also be acknowledged that determination of the issue is largely one of impression. Logic and reasoning take the matter only so far. There is no bright line between a realisation that an act or particular behaviour is simply naughty or mischievous and a realisation that it is seriously wrong.

16. [54]

    Despite the submission made by the Applicant based on Weiss ([46] above) the parties accepted that the issue for this Court is not what finding it would make on the evidence led but on whether the Trial Judge’s finding was open to him beyond reasonable doubt on the evidence. Put another way, the question for this Court is whether the Trial Judge must have had a doubt that the Crown had rebutted the presumption that the Applicant was doli incapax, because that was the only matter for his determination.

17. [55]

    A further issue is then raised about what evidence can be examined by this Court to ascertain if the finding was open. One aspect of the evidence contained in the transcript of the Complainant’s interview concerned the use of a condom by the Applicant in relation to count 2. Both parties submitted that this Court should consider the evidence concerning the use of the condom but they differed on what should be concluded from it. The Applicant’s Senior Counsel submitted that it indicated sexualised behaviour in a way that suggested the Applicant would not have realised he was engaged in wrongdoing. The Crown submitted that its use was some further indication of the Applicant’s preparation for, and knowledge of, wrongdoing. That raises the issue of whether this Court should similarly ignore it on the assumption that, if there had been a jury, the jury also would have been told to ignore that evidence notwithstanding that the Complainant’s answer in his interview made reference to it.

18. [56]

    The Trial Judge found that the presumption of doli incapax was rebutted for these reasons:

19. [57]

    The Applicant challenged each of the matters identified by the Trial Judge. He submitted that knowing that the Complainant did not want to do the act was a feature of all the counts including count 1 where the Trial Judge held there was no prima facie case. It was equally consistent with doing something wrong which fell short of being seriously wrong.

20. [58]

    In relation to using force on the Complainant, the Applicant submitted that his Honour ought to have had regard to the fact that the Applicant was highly sexualised. Attention was drawn to the fact that Mr Champion, the psychologist, had said there was a possibility that the Applicant was himself a victim of past molestation. As noted earlier, the Applicant submitted that, having regard also to the use of the condom, he may have thought that his behaviour was normal and was thus not gravely or seriously wrong.

21. [59]

    In addition, the amount of force used by the Applicant could not be determined without at least a viewing of what the Complainant said happened in the DVD. However, the Trial Judge did not view the DVD. The Applicant submitted that it was his state of mind that was significant, and by reason of his own upbringing where he was exposed to violence, it could not be concluded that he would have thought the force used was significant.

22. [60]

    In relation to putting his hand over the Complainant’s mouth, this was equally consistent with naughtiness or wrong behaviour short of being seriously or gravely wrong, because the Applicant did not want to be caught by his father. A desire to avoid detection was equivocal as to serious wrongdoing.

23. [61]

    In relation to the Complainant’s crying and experiencing pain, there was no evidence that the Applicant was aware of those matters. Even if he was, they had to be viewed in the context of the violence in which he had been brought up.

24. [62]

    Finally, there was little evidence of the period of time during which the act continued.

25. [63]

    It is clear that all of the matters identified by the Trial Judge must be viewed together and not individually. The High Court has discussed in a number of cases the approach to an assessment of circumstantial evidence. In Shepherd v The Queen (1990) 170 CLR 573 Dawson J (with whom Toohey & Gaudron JJ agreed) said at 580:

26. [64]

    In R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Gummow, Hayne & Crennan JJ said at [48]:

27. [65]

    In a similar way, when assessing the matters the Trial Judge has identified to reach a conclusion on a finding of fact, it is not enough to identify weaknesses in each of those matters. The matters must be viewed as a whole. Then the question must be asked of them as a whole, must the Judge have entertained a doubt about the finding that the Crown had rebutted the presumption?

28. [66]

    Two of the matters put forward by the Applicant tend to suggest error in failing to consider material matters. They are the failure to view the DVD to see the amount of force used by the Applicant, and the failure to consider Mr Champion’s report. To the extent that error is suggested in those regards I would reject the suggestion. The DVD was not, as in many cases, a record of what actually happened. It appears to have been, at best, a spontaneous demonstration of what the Complainant said the Applicant did in forcing him to the bed. Its probative value was minimal, even accepting that the Complainant was doing his best to demonstrate the appropriate movement. It was unlikely to convey in any real way what force was involved.

29. [67]

    Reliance on the report of Mr Champion has a number of difficulties. His examination of the Applicant was conducted in January 2012 which was more than six years after the events complained of. It is not easy to determine, for example, what violence the Applicant was exposed to nor how it had affected him at the relevant time. Certainly a reading of paragraph 29 of Mr Champion’s report leads to the strong inference that the violence was not directed towards the Applicant. Moreover, Mr Champion speaks of “possible molestation” without the Applicant having suggested it or made complaint about it, and despite there being no other evidence of it. Contrary to the Applicant’s submission it cannot be concluded on the evidence that he was highly sexualised.

30. [68]

    The proper approach to the task of assessing whether the finding was unreasonable is likely to mean that evidence expressly disregarded by the Trial Judge should similarly be ignored by this Court. That evidence concerns the Applicant’s use of the condom. A jury would have been told to ignore that evidence. The Judge has expressly done so.

31. [69]

    The position might have been different if there was evidence that was simply not mentioned by the Judge in his reasons. An enquiry whether on all of the evidence a verdict was unreasonable or could not be supported must entail a consideration of all the evidence that was before the trier of fact. However, where evidence has been expressly disregarded by the Trial Judge this Court would be substituting its own view for that of the Trial Judge by considering evidence that he has effectively excluded.

32. [70]

    One further matter which should be mentioned is the nature of the act itself. An act of penile/anal intercourse in the circumstances of counts 2 and 3 is “more obviously wrong” than, say, the acts which constituted counts 1 and 4. The act itself was available to be taken into account with the other matters, and strengthens the conclusion to which his Honour came although without expressly referring to it as a consideration.

33. [71]

    In my opinion the applicant does not establish that there was no or insufficient evidence to support the finding that the presumption of doli incapax had been rebutted nor that the finding was unreasonable. I am satisfied that on the whole of the evidence considered by the Trial Judge it was open to him to conclude beyond reasonable doubt that the Crown had rebutted the presumption of doli incapax in respect of count 2. I consider that no other rational inference was available from the evidentiary matters identified.

34. [72]

    The grounds asserting that the verdicts on counts 2 and 3 were unreasonable must be rejected.

Ground 3: Using the finding for count 2 in respect of counts 3 and 4

1. [73]

   In his Honour’s judgment, having found that the presumption had been rebutted in respect of count 2, the Trial Judge said:

2. [74]

   The concession made was this (T27/08/14 at p. 14):

3. [75]

   The Applicant submitted that the concession should not have been made by counsel at the trial because it is necessary to look at all of the circumstances of the offending in respect of each charge. The Applicant submitted that the acts carried out by the Applicant in relation to count 3 did not demonstrate the same degree of force against the Complainant nor was there evidence of the Complainant crying or crying out. In relation to count 4, the incident involved only the Applicant manipulating the Complainant’s penis through his clothes.

4. [76]

   The Crown submitted that what took place in relation to count 3 was sufficiently similar to what happened in relation to count 2 with the result that the presumption, having been rebutted for count 2, should remain rebutted for count 3. In relation to count 4 the Crown, while accepting that different acts were involved, submitted that the Applicant was a year older and much closer to being aged 14 years so that the presumption was weaker.

5. [77]

   Because of the concession made by the Applicant’s counsel at the trial rule 4 applies. In my opinion the matter is of such significance that leave should be granted. At least in relation to count 4, as I will discuss, a miscarriage of justice is established.

6. [78]

   The enquiry on each count is whether the Applicant knew that the act charged was seriously wrong. In relation to count 3 the act charged was the same act as charged in relation to count 2. Although surrounding circumstances such as the Complainant crying or being forcibly thrown down, or having his mouth covered by the Applicant’s hand all contributed to the conclusion that the presumption was rebutted, the absence of those circumstances in relation to count 3 does not have the effect that the Applicant did not know that the act charged in count 3 was not seriously wrong. Although it is the Applicant’s state of mind which must be examined it could not rationally be inferred that because the act was carried out less forcefully or with less resistance from the Complainant the Applicant could have believed that it was not seriously wrong in the light of what he had done in relation to count 2. The surrounding circumstances in relation to count 2 demonstrated that the Applicant knew that the act charged was seriously wrong. When he committed the same act in relation to count 3 the absence of a number of the accompanying circumstances does not detract from his knowledge that the act itself was seriously wrong.

7. [79]

   The position with count 4 is completely different. The same act was not involved. There was no direct touching of genitals. The evidence was that there was apparently no resistance from the Complainant until after about five minutes when he said that he was getting sick of what the Applicant was doing. At that point the Applicant stopped. It would not be unreasonable to infer that that the Applicant might have thought that the Complainant consented to what he was doing. That consent was only relevant to the issue of whether the Applicant thought that what he was doing was seriously wrong. It is difficult to see how what had earlier taken place, that is, the acts involved in counts 2 and 3, could throw any light on a conclusion about whether the Applicant thought what he did in respect to count 4 was seriously wrong.

8. [80]

   It was not open to the Trial Judge to find that the presumption had been rebutted in respect of count 4. The determination of guilt was unreasonable and the verdict should be set aside.

Ground 4 - The Trial Judge erred in finding that the Applicant occupied a position of trust with respect to the Complainant

1. [81]

   In his Remarks on Sentence the Trial Judge said this:

2. [82]

   His Honour then determined that both counts 2 and 3 fell within the mid-range of offences of the type with count 2 being the more serious. In respect of count 4 his Honour found that it fell into the low range for offences of the type but not towards the bottom of the range.

3. [83]

   The only evidence relevant to the issue of the Applicant being in a position of trust was found in this portion of the transcript:

4. [84]

   Contrary to the Applicant’s submission, his Honour did not determine that the Applicant’s position of trust was an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act. Rather, his Honour was examining matters that were relevant to the objective seriousness of the offending. Nevertheless, on the basis of the evidence in that portion of the transcript, it was not open to his Honour to conclude that the Applicant was in a position of trust with respect to the Complainant. Although the Crown submitted that the Applicant believed he had authority to send the Complainant to his room as a punishment, that raises the further issue, not explored at the sentencing hearing, of whether the Applicant understood or was capable of understanding what a position of trust might entail in terms of behaviour.

5. [85]

   There is the further matter that the Crown never put forward any suggestion that the Applicant was in a position of trust. For that reason, and in the absence of his Honour having raised it with counsel for the Applicant, there was a denial of procedural fairness in his Honour making that finding.

6. [86]

   Moreover, his Honour’s words “especially in relation to count 2” point strongly to the conclusion that his Honour considered that the position of trust obtained also for counts 3 and 4. There was simply no evidence of any sort to justify such a conclusion in relation to counts 3 and 4.

7. [87]

   In my opinion, this ground is made out.

Ground 5: Failure to take into account the provisions of 22A of the Crimes (Sentencing Procedure) Act

1. [88]

   Section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:

2. [89]

   Section 21A(3)(l) lists as a mitigating factor to be taken into account “the degree of pre-trial disclosure by the defence (as provided by s 22A)”.

3. [90]

   The Applicant relied alternatively on the provisions of s 22A together with s 21A(3)(l) and on a general willingness to facilitate the course of justice by limiting the issues in the case. To the extent that reliance was placed on s 22A it is difficult to see how error can be said to have occurred when his Honour was never asked to impose a lesser penalty by reason of that section.

4. [91]

   Nor, for that matter, was his Honour asked to take into account the Applicant’s willingness to facilitate the course of justice, by limiting the issues and not requiring the Complainant for cross-examination, outside the auspices of s 22A.

5. [92]

   In Avery v R [2015] NSWCCA 50 Bellew J (R A Hulme and Davies JJ agreeing) said:

6. [93]

   The Crown submitted that it was clear that the course adopted by the Applicant in agreeing not to contest the facts was for the purpose of having counts 1 to 4 severed from counts 5 and 6 which related to offences charged at a time when the Applicant was over the age of 14 years. The Crown submitted that the approach to the trial of counts 1 to 4 was not necessarily for the facilitation of justice but was for the purpose of obtaining the forensic advantage of severing the other counts from the indictment.

7. [94]

   Simply because it was part at least of the Applicant’s motivation to secure such a forensic advantage cannot mean that justice was not facilitated by the resultant arrangement. What is clear is that the trial proceeded expeditiously and economically, and the Complainant was not required for cross-examination. There were obvious savings of cost and a considerable advantage to the Complainant.

8. [95]

   During his Remarks on Sentence his Honour first noted that the sole issue at the trial was whether the Crown had rebutted beyond reasonable doubt the principle of doli incapax. He later said:

9. [96]

   However, in the absence of any submission made to his Honour in relation to a reduction in sentence whether by dint of the application of s 22A or generally by the facilitation of justice for the way the trial was conducted, I do not consider there is any basis for holding that error has occurred on the part of the Sentencing Judge.

10. [97]

    I would reject this ground of appeal.

Ground 6: Sentence manifestly excessive

1. [98]

   By reason of the error found in respect of Ground 4, it is necessary to consider whether any lesser sentence is warranted after an independent exercise of the sentencing discretion: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [43]. In that way it is not necessary to consider whether the sentences imposed were manifestly excessive.

Re-sentence

1. [99]

   As a result of what was said in Kentwell at [43] there has been some debate concerning how the process there described is to be carried out, particularly in relation to the application of the proviso in s 6(3) of the Criminal Appeal Act 1912 (NSW). Any differences in the approach to be taken to the sentence originally imposed appear to me to have been removed by the analysis carried out by R A Hulme J in Thammavongsa v Regina [2015] NSWCCA 107 at [16] – [25] and seemingly accepted by Simpson J in the same case at [6]. What that analysis makes clear is that it is not appropriate in undertaking the process referred to in Kentwell at [43] for this Court to conclude merely that the sentence imposed at first instance is within the range of appropriate sentences.

2. [100]

   In addition to the material before the Trial Judge at the sentencing hearing, the Applicant read on the appeal two affidavits concerning his time in custody. These affidavits, one by the Applicant and one by his solicitor annexing the Applicant’s custodial case-notes, demonstrate the problems the Applicant has had whilst in custody largely as a result of the offences for which he has been sentenced. He has spent a reasonable period of time on protection with all the limitations that this form of custody entails, and he has been assaulted at various times. He is reported as being a good worker who is polite and gets on well with the other inmates.

3. [101]

   The Trial Judge dealt at length with the reports from three psychologists, Dr Pulman, Dr Ashkar and Mr Champion. All agreed that his intellectual abilities were in the borderline to low average range but with significant variation amongst different cognitive abilities. Dr Pulman thought that he was not suffering from any mental illness at the time of the offending and that there was no evidence of cognitive difficulties or disabilities which were likely to have been contributing factors to his offending behaviour.

4. [102]

   Dr Ashkar considered that the Applicant had poor emotional regulation and behavioural inhibition skills. He suspected that these matters underlay the Applicant’s behavioural difficulties and sexual offending behaviour. The Trial Judge accepted that the Applicant’s premorbid intellectual functioning and his considerable immaturity at the time of offending meant that the need for general deterrence was diminished.

5. [103]

   I have read these reports and agree with the Trial Judge’s conclusions concerning the Applicant’s subjective circumstances although, for reasons which follow, general deterrence has some significance.

6. [104]

   Like the Trial Judge I consider that the offending fell within the mid-range for offences of this type with count 2 being more serious because of the greater degree of force used. The absence of any consideration of the Applicant being in a position of trust does not reduce the objective seriousness of the offending.

7. [105]

   The Juvenile Justice Report that was before the Trial Judge at the sentencing hearing disclosed that the Applicant believed that the events giving rise to the charges did not happen at all. His Honour correctly concluded that this denial showed a lack of remorse.

8. [106]

   At the time the Applicant was sentenced he had already been sentenced for three other similar offences committed against other siblings. Those offences and other matters suggested that his prospects of rehabilitation were no better than average, as the Trial Judge determined. Personal and general deterrence are important considerations despite the Applicant’s young age at the time of offending and his low level of maturity.

9. [107]

   It is appropriate to take into account as a factor in mitigation the manner in which the trial was conducted by the Applicant. There was no dispute as to the circumstances of the offending, simply a dispute on whether those matters were sufficient for the presumption to be rebutted. The result was a much shortened trial without the need for cross-examination of the Complainant who was still a minor.

10. [108]

    There are a limited number of cases that involve similar offending.

11. [109]

    In AEL v R [2007] NSWCCA 97; (2007) 170 A Crim R 355 the applicant who was said to be aged no more than 13 years and possibly 12 pleaded guilty to one count of sexual intercourse with a child under the age of ten contrary to s 66A of the Crimes Act 1900. At the time the maximum penalty was 20 years imprisonment. There were three further matters of indecent assault upon another child under the age of ten included on a Form 1. The victims in each case were his siblings, his brother aged eight and his sister aged five. He had been re-sentenced on a breach of a bond at first given to him by the Sentencing Judge that involved him entering into a residential program. This Court held that a non-parole period of 18 months with a further term of three years and six months was manifestly excessive. He was sentenced to a non-parole period of 13 months with an additional term of a little over 20 months.

12. [110]

    In Regina v KLH [2004] NSWCCA 312; (2004) 148 A Crim R 515 the applicant was convicted following a trial on three counts of sexual intercourse with a child under the age of ten years. He was aged 13 when the offences were committed and the victim was a boy aged seven years. One of the counts involved penile/anal intercourse and the other two counts involved oral intercourse. He received a total effective sentence of three years non-parole with an additional term of 18 months. This Court held that that was manifestly excessive. It re-sentenced him to a non-parole period of nine months in respect of each of the counts of oral intercourse with an additional term of nine months and to a non-parole period of one year for the anal intercourse. The sentences were to be served concurrently.

13. [111]

    In Regina v JDB [2005] NSWCCA 102; (2005) 153 A Crim R 164 the applicant pleaded guilty to six offences of sexual intercourse with a person under the age of ten years. He was aged between 13 years 5 months and 14 years 2 months at the time of the offences. The offences involved his half-sister who was aged 8 at the relevant time. Three of the offences involved penile/anal intercourse and three involved penile/vaginal intercourse. He was sentenced to a non-parole period of 12 months with a balance of sentence of two years. This Court held that the sentences were manifestly excessive. He was resentenced to a non-parole period of nine months with an additional term of two years and three months.

14. [112]

    In BP v R, BP was found guilty of penile/vaginal intercourse with a girl aged 16 years. He was found guilty of digital penetration of the same complainant. SW was found guilty of digital penetration of the same complainant. The Trial Judge sentenced BP for the penile penetration to a non-parole period of 12 months with a balance of term of two years. For the digital penetration he was given a three year bond. SW was given a suspended sentence of two years imprisonment. BP was aged 12 at the time of the offences and SW was aged 11. There was no appeal against that sentence.

15. [113]

    In Regina v KBM [2004] NSWCCA 123 the applicant pleaded guilty to sexual intercourse with a person under the age of ten years. The victim was nine years old and the applicant was 13 years old, almost 14. The offence involved the forceful insertion of the applicant’s penis into the complainant’s mouth. He was initially sentenced to a non-parole period of twelve months with an additional term of two years. It became necessary on appeal to this Court to resentence the applicant because of an error by the Sentencing Judge in applying s 44 of the Crimes (Sentencing Procedure) Act 1999. He was resentenced to a non-parole period of six months with a balance of term of two years and six months.

16. [114]

    A comparison with those cases highlights only one particular difference with the present Applicant. At the time he was regarded as having committed these offences (an assessment of his age that erred in his favour) he was aged 11 years 7 months at the time of counts 2 and 3 and aged 12 years 3 months at the time of count 4. Whilst it is true that he was found to have been suffering from intellectual difficulties, none of the psychologists discerned any causal link between his difficulties and his offending. Further, in most of the cases referred to, the applicants had emotional or intellectual difficulties or both. Although the number of cases involving children of approximately the Applicant’s age is small in number, the sentences imposed in those cases provide some assistance in reaching a view about what sentence should be imposed in the present case.

17. [115]

    The Applicant submitted that in the circumstances of the Applicant’s youth and immaturity together with his low intellectual abilities, a s 9 bond was an appropriate sentence. In that regard it was noted that the Applicant had been in custody already since December 2014. if a sentence of imprisonment was imposed that sentence should be suspended for the same reasons.

18. [116]

    In my opinion, no other sentence than imprisonment is warranted. I accept that the Applicant’s time in custody has been difficult and I do not overlook the assaults and threats made to him. Unfortunately, such occurrences are not uncommon in a custodial environment and particularly for prisoners sentenced for offences such as the ones for which the Applicant has been convicted. Those matters do not justify the suspension of the sentence. The Applicant requires a lengthy period on parole to assist in his rehabilitation. For that reason, and because of the appropriate period of accumulation of the two offences, I find special circumstances.

19. [117]

    The sentences that I would impose, including the appropriate accumulation, mean that no lesser sentences are warranted than were imposed by the Trial Judge.

Conclusion

1. [118]

   I propose the following orders:

   1. (1)

      Grant leave to appeal in respect of the conviction appeal.

   2. (2)

      Appeal upheld with respect to count 4.

   3. (3)

      Quash the conviction in respect of count 4 and enter an acquittal.

   4. (4)

      Dismiss the conviction appeal in respect of counts 2 and 3.

   5. (5)

      Leave to appeal in respect of the sentence.

   6. (6)

      Dismiss the sentence appeal.

2. [119]

   HAMILL J: I have had the considerable advantage of reading in draft the judgment of Davies J. I gratefully adopt his Honour's careful analysis of the facts and issues which arose in this appeal. His Honour has set out the grounds of appeal and I need not repeat them.

3. [120]

   I agree with Davies J that it was open to the primary judge to find that the prosecution had rebutted the presumption of doli incapax in relation to count 2 and with his conclusion that ground 1 must be rejected.

4. [121]

   I also agree with Davies J that the verdict in relation to count 4 should be set aside and that a verdict of acquittal should be entered. I agree with his Honour's reasons for that conclusion.

5. [122]

   However, I have come to a different view in relation to the conviction appeal relating to count 3 and in relation to the outcome of the application for leave to appeal against sentence. I have concluded that the appeal in relation to count 3 should be upheld and the conviction quashed. The appeal against sentence should also be upheld and the applicant re-sentenced to a suspended sentence. These are my reasons for those conclusions.

Some observations on the law of doli incapax

1. [123]

   Davies J has explained the operation of the presumption of doli incapax by reference to the statute and case law. I do not disagree with anything that his Honour has written but refer to some aspects of the law that guide my consideration of the appeal.

2. [124]

   In New South Wales, it is "conclusively presumed" that a child under 10 years of age cannot be guilty of an offence: s 5 Children (Criminal Proceedings) Act 1987 (NSW). The common law provides that for children between 10 and 14 years of age there is a presumption of doli incapax (incapable of crime) which may be rebutted by evidence called in the prosecution case: see, for example, R v Gorrie (1919) 83 JP 136, C (A Minor) v DPP [1996] AC 1, Regina v CRH, BP v R, SW v R ; see also the helpful analysis by Matthew Johnston, 'Doli Incapax' (Paper presented at the Legal Aid Children's Legal Service Criminal Law Conference, Sydney, 30 May 2009).

3. [125]

   The prosecution must establish (beyond reasonable doubt) that the child knew that the act was "seriously wrong as a matter of morality": BP v R, SW v R at [28]. In R v Gorrie, Salter J directed the jury that:

4. [126]

   The age of the child is an important consideration in determining whether the presumption has been rebutted. Given the conclusive presumption in s 5, it follows that the closer the child is to the age of 10, the more cogent the evidence must be to rebut the presumption. In DK v Rooney & Anor (Supreme Court (NSW), 3 July 1996, unrep), McInerney J said:

5. [127]

   Equally, "[t]he authorities are clear that the nearer the child in question is to the age of 14, the less strong need the evidence be if the presumption is to be rebutted": R (a Child) v Whitty (1993) 66 A Crim R 462 (Harper J).

6. [128]

   In C v DPP Lord Lowry said:

7. [129]

   In many of the cases, a distinction has been drawn between knowledge in the child that the act was seriously or gravely wrong and acts of mere naughtiness or mischief. Lord Lowry thought that this distinction gave context to the phrase "seriously wrong" which was otherwise "conceptually obscure" and that this view was "confirmed by the rather loose treatment accorded to the doli incapax doctrine by the textbooks". I confess that I find the distinction unhelpful and, in jury directions, could give rise to an erroneous process of reasoning whereby a finding that the act was more than naughty or mischievous may lead to a finding that the child knew that what they did was seriously or gravely wrong without proper attention being paid to that question. There is a vast chasm between something that is "naughty" or "mischievous" and something that is gravely or seriously wrong. The trouble with introducing the comparison is that it is easy to fall into the trap of thinking that if something is more than naughty, it must therefore satisfy the test. It does not. The question is a simple one, although one that is difficult in application. The question was well stated by Salter J in R v Gorrie - the child must know "that he was doing what was wrong not merely what was wrong, but what was gravely wrong, seriously wrong."

8. [130]

   However, the issue does not arise for determination here. While he referred to naughtiness and mischief, there is no doubt that the primary judge applied the correct test, at least in respect of counts 1 and 2 and, by inference, counts 3 and 4. No submission to the contrary was made.

9. [131]

   There is some controversy surrounding the relevance of the seriousness or gravity of the act constituting the offence. The preponderance of authority is reflected in Lord Lowry's statement in C v DPP (at 38):

10. [132]

    This approach has been adopted in New South Wales. In DK v Rooney, McInerney J said:

11. [133]

    In Victoria, Lord Lowry's approach was questioned in the case of R v ALH [2003] VSCA 129; (2003) 6 VR 276. After referring to the principle as being designed to avoid circular reasoning, Cummings AJA said at [74]:

12. [134]

    Callaway JA agreed, saying at [19]:

13. [135]

    Batt JA agreed at [24].

14. [136]

    In BP v R, SW v R Hodgson JA (Adams and Johnson JJ agreeing) noted the observations in R v ALH but said (at [30]) "it is not necessary to resolve this conflict in this case, because there was evidence in addition to the mere doing of the acts charged." His Honour went on to say that:

15. [137]

    I agree with the observations of Davies J (at [35]) that "the act charged is not without some relevance in determining whether the presumption has been rebutted" but that there "must be more than proof of the act charged". This agrees with the approach of Lord Lowry in C v DPP that "the more obviously wrong the act, the easier it will generally be to prove guilty knowledge".

Count 2 and appellate review of an unreasonable verdict in a judge alone

1. [138]

   I agree with Davies J that it was open to the trial judge to find that the prosecution had rebutted the presumption of doli incapax in respect of count 2. I agree with his Honour's reasons for that conclusion on the facts of this case. The High Court has recently confirmed that, in light of s 133(1) Criminal Procedure Act, the application of s 6(1) Criminal Appeal Act is the same whether the trial is conducted by jury or by judge alone: Filippou v The Queen [2015] HCA 29 the at [12] (French CJ, Bell, Keane and Nettle JJ) and [82]-[83] (Gaegler J).

2. [139]

   In the circumstances of this case, a doubt entertained by this Court would almost certainly be a doubt that the Trial Judge ought to have experienced: see M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 495; see also Filippou at [138]. That is because all of the evidence at trial was tendered in documentary form and the Trial Judge enjoyed no advantage in experiencing the atmosphere of the trial or in assessing the witnesses as they gave evidence.

3. [140]

   I have reviewed the evidence and am not left with a reasonable doubt that the prosecution had, with respect to count 2, rebutted the presumption of doli incapax. In respect of count 2, the Applicant conducted himself in a way that suggested that he was aware that what he was doing was seriously wrong. He covered the Complainant's mouth to stop him from crying out and told the Complainant not to tell. The act of intercourse was accompanied by some force and the Complainant was crying. In spite of the Applicant's submission to the contrary, it is difficult not to infer that the Applicant was aware of the distress he was causing to the Complainant.

4. [141]

   This is not a case like DK v Rooney where the act of "homosexual intercourse" committed by a child of 12 years was held by McInerney J to be insufficient in itself to rebut the presumption. In the present case, the "circumstances attending the act" and "the manner in which it was done" established that the Applicant was aware that what he did was seriously wrong.

Count 3

1. [142]

   As a result of a concession by counsel for the Applicant at the trial, the Trial Judge gave no independent assessment to the facts and circumstances of counts 3 and 4. The judgment reflects this. In convicting the Applicant in relation to those counts, all that his Honour said was this:

2. [143]

   This approach was erroneous in both fact and law. To understand that conclusion it is necessary to consider the Trial Judge's reasons for concluding that the presumption of doli incapax was rebutted beyond reasonable doubt in respect of count 2. Those reasons were encapsulated in the following passages of the judgment:

3. [144]

   Senior Counsel for the Applicant identified correctly the features of the case, outside of the facts of the offence itself, that satisfied his Honour that the presumption was rebutted:

4. [145]

   I accept that the ultimate finding in respect of count 2 may have had some relevance to an assessment of the Applicant's knowledge in respect of count 3 given that count 3 occurred later in time and the nature of the intercourse was the same in each count. However, each count required individual and separate consideration. The approach adopted was contrary to the standard directions given to juries that they must consider each count separately and to the authorities that support such directions. In KRM v R [2001] HCA 11; (2001) 206 CLR 221 McHugh J observed at [36]:

5. [146]

   This is the type of standard direction given in every jury trial involving multiple counts. As Wood CJ at CL said in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 said at [214]:

6. [147]

   The fact that a trial is being conducted by judge alone does not alleviate the need for the tribunal of fact to consider each charge separately and to determine whether or not all of the elements of the offence were established. This included, in this case, the question of whether the evidence established the criminal capacity and intention of the child.

7. [148]

   This was important in the factual circumstances of the present case. Almost all of the features of the case that led the Trial Judge to find the Applicant guilty of count 2 did not exist in relation to count 3. The central fact - that is, the act constituting the sexual intercourse - was the same but the surrounding circumstances were quite different. In particular:

8. [149]

   Apart from the act itself, the evidence in relation to counts 2 and 3 were very different. The only common feature in the surrounding circumstances was the fact that the act stopped when an adult returned. The conclusion reached on count 2 could not, as a matter of law, logic or fact dictate the conclusion to be reached on count 3.

9. [150]

   The concession made in the court below was made in error. There could be no tactical or forensic reason for this concession to be made and leave under rule 4 of the Criminal Appeal Rules should be granted to allow the Applicant to rely on Ground 3, which is in the following terms:

10. [151]

    I am of the opinion that this ground is made out. For the purpose of s 6 Criminal Appeal Act 1912 (NSW), there was a wrong decision on a question of law. The verdict must be set aside unless I consider that "no substantial miscarriage of justice has actually occurred". The High Court has considered the operation of this proviso in a number of cases over many years: see, for example, Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 372, Weiss v The Queen [2005] HCA 81; (2008) 224 CLR 300 at 313-316, AK v Western Australia [2008] HCA 8 at [58]; (2008) 232 CLR 438 at 457, Handlen v The Queen [2011] HCA 51; (2011)245 CLR 282 at 298, Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at 106 and Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 at 480-481; Filippou v The Queen at [15].

11. [152]

    The High Court has held that "[n]o single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given": Weiss at [44]. Statements have been made as to whether conviction is inevitable or whether the appellant lost a fair chance of acquittal (Wilde at 372), but such expressions must not "mask the nature of the appellate court's task" or become substitutes for the statutory language (Weiss at [33]). In Baiada Poultry it was said at [29]:

12. [153]

    The plurality went on at [35] to explain that "if it was open to a jury to reach a contrary conclusion, the point was not established beyond reasonable doubt". In Baini (which concerned somewhat different statutory language) French CJ, Hayne, Crennan, Kiefel and Bell JJ said at [32] that "the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open."

13. [154]

    Most recently, in Filippou v The Queen, the plurality explained at [15]:

14. [155]

    The present case is somewhat unusual in that it was a trial by judge alone and all of the evidence was tendered in documentary form. On my review of the evidence I am unable to conclude that conviction was inevitable or that it was not open to the tribunal of fact to come to the view that the presumption was not rebutted in relation to count 3. Apart from the evidence of the act itself, there was little surrounding evidence that demonstrated that the 11 (or perhaps 12) year old child knew that what he was doing was gravely or seriously wrong. I do not consider that "no substantial miscarriage of justice has actually occurred". I would uphold ground 3 and quash the conviction in relation to count 3.

15. [156]

    The question of whether there should be an order for a new trial involves consideration of the merit of ground 2 which asserts that the verdict in count 3 was unreasonable: cf the discussion in Fleming v R [1998] HCA 68; (1998) 197 CLR 250 at [13]-[14] and the conclusion at [44]-[45].

16. [157]

    The Complainant described the incident that gave rise to count 3 in an interview conducted in 2013 by which time he was 15 years old. He said that it happened after the incident giving rise to count 2 but agreed that it was "around the sort of same time". It happened at the place where his father worked. The Complainant, the Applicant and their sister were at work with his father. The Complainant thought "he wasn't gonna do it anymore and then that's when he pulled my pants down and started doing it". The Applicant had asked the Complainant to go into an office when the father was doing some work outside. The sister was outside hitting a ball. The Applicant "just started stripping". He took his pants down to his knees. The Complainant said that "I went to run away but he was at the door bit" and that he "went to call out for [the sister] and then that when he grabbed me and started doing it and I didn't wanna, I didn't want [his sister] to come in and see that he was doing it to me 'cause I didn't let her know that he was doing it to me ---." The Complainant said that he was lying down on a pile of clothes and that the Applicant "just grabbed me and put me on there". He was on his "tummy face down" and the Applicant "put his penis in his bum." He stopped when he heard the father returning and it only went on for 2-3 minutes. On direct questioning, the Complainant said that the Applicant "didn't tell me not to tell anyone" and that the Applicant did nothing else to him on that occasion.

17. [158]

    There was no evidence that on this occasion the Complainant was crying or demonstrably upset. There was no evidence that the Applicant took steps to keep the conduct secret apart from stopping when the father returned. There was no evidence of force being used or of covering the Complainant's mouth to stop him from crying out.

18. [159]

    While the timing was not precise, it seems that the Applicant was around 11 years and 6 months at the time. Like the Trial Judge, I accept that the evidence supported a finding that the Applicant was "of very low intelligence" and "possessed a lesser appreciation of the seriousness of his conduct". That finding was based on the material in a report of a clinical psychologist (Peter Champion) prepared in February 2012. The report had its limitations, not least of which was that it was based on an assessment conducted many years after the offences, by which time the Applicant was 18 years old. Further, it was prepared specifically to address the question of the Applicant's fitness to plead or stand trial. Overall, intelligence testing placed the Applicant in the "borderline disabled range". There were variations in the results of the testing, with the Applicant scoring reasonably well in arithmetic but showing "consistent deficits in verbal reasoning, vocabulary development and general knowledge". He demonstrated some limitations on the "perceptual reasoning scale". Overall, Mr Champion thought "his potential was probably in the low average range" and said he met the criteria for a "formal diagnosis of mild development disability". It is reasonable to infer that the Applicant’s intellectual shortcomings at 18 years also existed when he was 11 years of age.

19. [160]

    I have considered the seriousness of the acts giving rise to the offence including the nature of the intercourse and the very young age of the Complainant. I have also taken into account that shortly before this incident, a similar incident had occurred (count 2) during which the Applicant demonstrated an awareness of the wrongfulness of the act by (amongst other things) covering the Complainant's mouth and telling him not to tell anybody about what had happened. However, taking into account the Applicant's youth and intellectual difficulties along with the lack of clear evidence as to the temporal proximity of the two incidents, it does not necessarily follow that because the child knew that an act was seriously wrong on the first occasion, he knew that it was wrong on a subsequent occasion.

20. [161]

    One factor that I have not taken into account was the suggestion that the Applicant may have been exposed to, or the victim of, sexual molestation. I accept that this may be a relevant factor in an appropriate case. However, there was no evidence of any such molestation in this case. The only evidence was from Mr Champion who said that the Applicant's symptoms of a post-traumatic stress disorder "may flow from past adverse events such as possible molestation or exposure to violence in earlier years." He determined that the Applicant had endured a grossly dysfunctional family life with a history of exposure to violence. However, there was no direct (or even hearsay) evidence of any sexual molestation. On my reading of the report, Mr Champion was not asserting that the Applicant was a victim of past sexual molestation. Rather, he was providing possible causes for post-traumatic stress disorder in circumstances where he found that the Applicant exhibited symptoms of such a disorder. Accordingly, I have disregarded the possibility of the Applicant being exposed to sexual molestation.

21. [162]

    On my review of the whole of the evidence, I am left with a reasonable doubt as to whether the Applicant knew that what he was doing was gravely or seriously wrong in a moral sense. A reasonable doubt experienced by an appellate court is ordinarily one that ought to have been experienced by the court at first instance: M v The Queen at 495 (Mason CJ, Deane, Dawson and Toohey JJ). Their Honours went on to explain:

22. [163]

    In the present case, no oral evidence was called. All of the evidence presented before the District Court was in documentary form. Accordingly, the caveat referred to in M v The Queen has no application in the circumstances of this case.

23. [164]

    It follows that the conviction and sentence in relation to count 3 should be quashed and a verdict of acquittal entered.

24. [165]

    The sentencing Judge imposed the following sentences in relation to counts 2, 3 and 4:

25. [166]

    The sentence in relation to count 4 was entirely concurrent with the sentence for count 3. The sentence for count 2 was accumulated by 2 months so that the total effective non-parole period was 11 months commencing 5 December 2014 and expiring 4 November 2015. There was a balance of term of 2 years and 5 months (that imposed in relation to count 3).

26. [167]

    Because of the conclusion I have reached in respect of count 3, it would be necessary (at least) to adjust the commencement date of the sentence (s 59 Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act")). However, it is also necessary to consider the Applicant's specific and general complaints in relation to the sentence.

27. [168]

    I agree with Davies J that ground 4 ("the Trial Judge erred in finding that the Applicant occupied a position of trust with respect to the Complainant") is made out. I accept that the sentencing Judge was not making a finding of an aggravating feature under s 21A(2) of the Sentencing Act. However, he was plainly taking the "position of trust" into account in his assessment of the objective gravity of the offending. The Judge erred in finding that a child aged 11 or 12 years of age left in charge of his two younger siblings should be considered to be in a position of trust for the purposes of sentencing.

28. [169]

    I also agree with Davies J that ground 5 ("the Trial Judge erred in failing to take into account s 22A Sentencing Act or alternatively the willingness of the Applicant to facilitate the course of justice") should be rejected. The matter was not raised during the sentencing hearing. I expect this was not an oversight but rather an ethical approach arising from counsel's knowledge of the tactical considerations underpinning the manner in which the trial was conducted. I note in particular that two other counts were severed from the indictment and that the Juvenile Justice report suggested that the Applicant denied that counts 1-4 had occurred at all. While there is little doubt that the trial was conducted efficiently, it is not appropriate in the circumstances to uphold a ground asserting error when no submission was made to the Judge concerning these matters. However, like Davies J, I take it into account in considering the question of sentence in the light of the error identified under ground 4.

29. [170]

    Because ground 4 is to be upheld, it is necessary to consider afresh the question of an appropriate sentence for count 2: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601at [42]-[43].

30. [171]

    The offence is a very serious one, involving the anal penetration of a child less than 10 years of age. He was only 6 or 7 at the time. The offence was committed in the home of the victim and no doubt had a devastating effect on him. In his interview, the victim said that he complained because "I was getting sick, like I couldn't hold it in no more".

31. [172]

    The offence carries a maximum penalty of 25 years. Ordinarily, the purposes of punishment (under s 3A and the common law) would require an extremely lengthy term of imprisonment. However, the Applicant was himself a young child when the offence was committed. While he was being sentenced as an adult because of the understandably delayed complaint, the sentencing principles relating to children apply to a consideration of an appropriate sentence.

32. [173]

    Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) provides:

33. [174]

    These fundamental principles remain relevant in a case where the offence is to be dealt with according to law: see for example Regina v SDM [2001] NSWCCA 158; (2001) 51 NSWLR 530 per Simpson J at [22].

34. [175]

    In R v Elliott and Blessington [2006] NSWCCA 305; (2006) 68 NSWLR 1 Kirby J (dissenting in the outcome) said (at [127]) that "a jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children." His Honour referred to Slade v The Queen [2005] NZCA 19; [2005] 2 NZLR 526 and to studies concerning the capacity of adolescents to regulate their moods, impulses and behaviours. Those considerations apply with even greater force in the case of an 11 year old offender with an intellectual disability.

35. [176]

    In MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93, Adams J identified at [16] two reasons that the youthfulness of offenders is considered a very significant factor in sentencing. The first is the public interest in the rehabilitation of young offenders and the second is the fact that immaturity is relevant to culpability or criminality.

36. [177]

    In sentencing children, greater weight is given to rehabilitation and less weight to deterrence: see, for example: R v GDP (1991) 53 A Crim R 112 at 115-116, KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 McClelland CJ at CL at [22]-[26]. However, the closer a child is to adulthood and the more serious the offending, the more likely that deterrence and retribution will be significant factors. A relevant factor in this assessment is the amount of planning involved in the offence. In the present case, the child was around 11 ½ when he committed the offence. There was no evidence of planning or anything to suggest the offence was other than opportunistic and spontaneous.

37. [178]

    The Applicant had no previous criminal history although in 2012 the Children's Court sentenced him to a series of control orders (12 and 14 months) for four similar offences that occurred in 2011. The commission of those offences provides no comfort in assessing the likelihood that he will re-offend. Nothing in the reports tendered in the sentencing hearing (or on appeal) leads to a positive finding as to his prospects of rehabilitation. On the contrary. Risk assessments as to future offending suggest that he requires a "medium-high level of supervision". At the time of sentence, it seems that he had not been involved in any programs to address his offending behaviour. However, material tendered on re-sentence demonstrated regular attendances on a psychologist and completion of the forms to facilitate his referral to a sex offender program.

38. [179]

    There was no evidence of remorse and, as I have said, the Juvenile Justice report noted that he told the author that he believed the events "didn't happen at all". He asserted that the allegations were made because he "dobbed on the victim … for smoking bumpers." This supported the conclusion of the Juvenile Justice Officer that he was "unable to demonstrate that he was taking any responsibility for the offences". However, I take into account the efficiency with which the trial was conducted and the extent of disclosure and co-operation exhibited by the defence in the course of the trial proceedings.

39. [180]

    The Applicant is incarcerated in an adult gaol and the evidence suggests that this is particularly onerous because of his relative youth, his emotional immaturity and intellectual disability as well as the nature of the offences. He has been bullied by other inmates. The material tendered on re-sentence showed that he had reported incidents of violence directed towards him. His uncle said that he lost a lot of weight (around 30 kilograms) when he first went into custody and believed that it was because he was scared and stressed. He has now put the weight back on.

40. [181]

    In view of the seriousness of the offence and the concerns regarding the protection of the community arising from his lack of insight and poor prospects of rehabilitation, I have concluded that a custodial sentence is the only appropriate sentence: s 5(1) Sentencing Act. However, because he was a child at the time of the offence, that sentence should be a modest one of 20 months duration. It should be backdated to the date that he was taken into custody. Because of the reduced significance of deterrence and his need for counselling, supervision and assistance in re-entering the community, I have concluded that the sentence should be suspended pursuant to s 12 of the Sentencing Act.

41. [182]

    Accordingly, the orders that I favour are as follows: