Tomlinson v R

BRERETON JA: The applicant Nathan Tomlinson was tried before Wass SC DCJ and a jury on 15 counts of sexual intercourse with a child of the age of 14 and under the age of 16, contrary to Crimes Act 1900 (NSW), s 66C(3) (Counts 1, 2, 4-16); one count of aggravated sexual assault of a child above the age of 10 and under the age of 14, contrary to Crimes Act, s 66C(2) (Count 3); one count of using a child above the age of 14 for the production of child abuse material, contrary to Crimes Act, s 91G(2)(a) (Count 17); and one count of produce child abuse material and four counts of possess child abuse material, contrary to Crimes Act, s 91H(2) (Counts 18-22). The s 66C offences concerned two unrelated complainants, DA and HS, who were schoolgirls with whom the applicant entered into sexual relationships after first establishing contact on Facebook. The child pornography offences concerned images and videos found on the applicant’s computer that included pornographic images and videos of HS as well as of other females under the age of 16 years.

On 20 September 2018, the jury found the applicant, who had entered pleas of not guilty, guilty on all counts. Sentencing proceedings were deferred, while the applicant was tried in respect of two further counts of possession of child pornography, in respect of which he was found guilty by a jury on 2 April 2020. On 20 May 2020, the applicant was sentenced in respect of the present offences to an aggregate term of imprisonment of thirteen and a half years, with a non-parole period of eight years which will expire on 13 October 2024.

The applicant seeks leave to appeal to this Court against his convictions, on the grounds that:

Leave to appeal, under Criminal Appeal Act 1912, s 5(1)(b), is required, as neither ground raises a question of law alone.

The applicant also seeks leave to appeal against the sentence.

The offences of which the applicant was convicted occurred between May 2012 and January 2015, when the applicant was aged between 32 and 34. That he had a sexual relationship with both girls was not disputed. Although he disputed some of the alleged acts of intercourse relating to HS, and possession of some of the child pornography images (namely those depicting children other than HS), the applicant’s primary case was one of honest and reasonable mistake as to the age of each of DA and HS: he gave evidence to the effect that both girls had lied to him about their age and had told him that they were 16 years old when they met, and that he believed them.

The offences relating to DA occurred between 25 May 2012 and 2014, when she was between 14 and 15 years of age.

DA said that she first met the applicant in 2012, when she was 14 years old. [1] The applicant sent her a “friend request” on her Facebook account, which she accepted. She said that her date of birth was visible on her Facebook account, [2] and that she had a lot of pictures on her profile, including photos of herself and her friends at school.

The applicant and DA then exchanged messages on Facebook. DA said that in the course of those exchanges, she told the applicant that she was 14 years old, and in year 8 at school; [3] and the applicant told her that he was 22 years old, which was the same age as her brother. [4] In fact, the applicant was then aged 32.

After a couple of months, the applicant suggested that they meet in person, and they met in a park in Mount Druitt, after school, at about 2:45 pm to 3:00 pm. [5] DA took her friend TG with her, “for security”. [6] DA said that she was wearing her school uniform, [7] which was the uniform for the junior (Year 7-10) school. [8] According to DA, the applicant told her that she looked “cute” in the uniform. [9] TG also gave evidence that they met the applicant at the park after school, and were both wearing their school uniforms. [10] The applicant arrived at the park in a blue Hummer vehicle. [11] They spoke for about 20 minutes, about a range of topics including the applicant’s business, school, and what DA and TG had done that day. [12] DA recalled that they spoke outside the car, while it was TG’s recollection that they spoke inside the car. [13]

DA said that following this meeting she had further Facebook conversations with the applicant. At this stage, while their relationship was not sexual, DA saw the applicant as a “supportive network”. [14] She met the applicant again, in the same park, on about four or five occasions in early 2012, [15] when she was 14 years of age. DA said that she wore her school uniform on each occasion, because she was not allowed out on weekends; [16] thus, each meeting took place after school.

On the occasion of about their fourth meeting, the applicant kissed her with an open mouth and asked her to be his girlfriend. She agreed. The applicant told her that they would have to wait until she was 16 before they could tell anyone that they were together. [17] DA said that the applicant gave her a gold bracelet for her 15th birthday.

After they had met four or five times, the applicant messaged DA and suggested that they could get a hotel for more privacy. [18] DA said that she was initially reluctant, but the applicant said that it would not be long, the hotel was only 20 minutes away, and her mother would not find out. [19] DA said that she agreed to go to the hotel because she was afraid that the applicant would not like her as much if she did not. [20]

On 25 May 2012, the applicant collected DA from the park after school at about 2:40 pm and drove to the Comfort Inn Hotel, arriving at about 3:00 pm. She was wearing her school uniform. [21] When they arrived, the applicant parked in the carpark and told her to wait in the car. [22] The applicant then went inside to book a room, and then drove to the front of the hotel room. Inside the hotel room, the applicant removed DA’s school uniform and then undressed himself. They laid on the bed and had penile-vaginal intercourse using a condom (Count 1). She was then 14 years old. The sex lasted for five minutes. DA said that it was “awkward” and felt “uncomfortable”. [23] The applicant then drove DA back to the park from which he had collected her, arriving about 4:00pm. On the way home the applicant told her that he loved her and was happy they were together. He said that they could “do it more often”. [24]

About two months later, the applicant again took DA to the hotel. [25] He again collected her from the park at about 2:40 pm, after school, and she was wearing her school uniform. [26] They drove to the same hotel, and DA again waited in the car while the applicant went inside to book the room. They went into the same hotel room as on the previous occasion. The applicant again undressed her and himself, and they had penile-vaginal sex (Count 2). DA was at this time 15 years of age. [27] The applicant then drove her home, arriving at approximately 4:00 pm.

DA said that this occurred on six to ten subsequent occasions. [28] On each occasion they had penile-vaginal intercourse. DA said that on another occasion, they had intercourse in the back of the applicant’s Hummer, [29] and on another occasion in the secluded area of a park in Mt Druitt. [30]

DA ended all contact with the applicant in 2015 when she was 17 years old, and asked the applicant to stop contacting her. However, she resumed communications with him later that year, and maintained a friendship with him from that time onwards. [31]

The applicant, who gave evidence, agreed that he first met DA in 2012, when he sent her a Facebook message that said “Hi”, [32] and a friend request. [33] He said that about four to six weeks later, DA contacted him on a Saturday and asked him what he was doing, and they agreed to meet in a park. DA was present with her friend TG. The applicant said that DA told him that she was 16 years old and was studying for her learner’s permit, [34] and that she had been studying for it since she turned 16. He denied telling her that he was 22. [35]

The applicant said that in the time he knew DA she was never in her school uniform. [36] He said that a few weeks after their first meeting he met her in the TAFE carpark, and that they then went to Starbucks together. [37] He agreed that he had intercourse with DA substantially as alleged in Counts 1 and 2, but asserted that they did not occur until mid-2013 (after DA had actually turned 16). [38] He also agreed that he booked the room, and said that he used cash because the hotel offered a discount for cash. The applicant said that they were in the hotel room just to have sexual intercourse on each occasion, and that he then returned DA to the park. He denied having intercourse with DA anywhere other than at the hotel. He agreed that he had purchased a gold bracelet for her, but said that this was a Christmas present. [39] He said that he believed that DA was 16 years old, based on their earlier conversations, and her “willingness to be part of a relationship”. [40] He said that DA had told him that she was applying for admission to UTS (the University of Technology, Sydney). [41]

The offences relating to HS occurred between November 2012 and January 2015, when she was between 13 and 15 years of age.

HS said that her first contact with the applicant was when she sent him a friend request on Facebook. [42] She explained that one of her school friends had “liked” a “bad photo” of the applicant on Facebook, which made her “curious”. The applicant accepted the friend request. HS could not remember what personal information about herself was visible on her Facebook profile at that time.

She first met the applicant a few weeks after he “friended” her on Facebook. [43] HS was drinking alcohol at her house with her friend RJ. They were bored and began messaging people on Facebook. HS responded to a Facebook message that the applicant had sent to her (which she had not previously answered), and asked the applicant if he would like to meet. She said that this meeting occurred during the Christmas holidays, when she was about to go into Year 9 at Windsor High School. The applicant met HS and RJ outside the Windsor Hotel, late at night. He picked them up and took them for a drive for a couple of hours, during which they listened to music, [44] and HS and RJ were drinking. HS said that while they were driving, she told the applicant that she was 15 years old, and RJ told him that she was 16. [45] In fact, they were aged 13 and 15 respectively. [46]

The applicant later dropped them off at HS’s house in South Windsor. [47] In cross examination, HS agreed that when first interviewed by the Police she said that she thought she had told the applicant that she was “15 or 16 years old”. [48] She explained that at that time she was not sure, but that she now remembered that she told the applicant that she was 15. [49]

The applicant and HS continued to have contact, on Facebook [50] and by telephone. Although HS did not have a mobile phone, she used friends’ phones and payphones to speak with the applicant. [51] Subsequently, the applicant bought a Samsung phone for HS, so that she could keep in contact with him. [52] He also purchased clothes, hair extensions and manicures for her, and often gave her money. [53]

HS and the applicant met on a number of occasions during the Christmas holidays. Initially, HS would only see him with RJ. Typically, the applicant would pick them up from HS’s house in South Windsor, stop at a bottle shop to purchase alcohol for them, and then “drive around”. [54] Subsequently, HS and the applicant began to meet alone. [55] According to HS, after a while they “pecked” on the lips; [56] this occurred a week or two after she first met the applicant. [57]

On another occasion during the holidays, HS and the applicant were in his blue Hummer, and pulled over by the river in Windsor. They were listening to music and talking. HS was drinking UDL vodkas, which the applicant had purchased for her. She said that she felt “really drunk” at the time. [58] They started kissing in the front seat, and then moved into the back seat. The applicant took a condom from the centre console, placed it on his penis and then inserted his penis into her vagina. She was then aged 13 years (Count 3).

HS said that she told the applicant that she was 13 years old a few days before her 14th birthday, [59] after the incident the subject of Count 3; he responded that he was upset that she had lied to him. HS asked the applicant how old he was, and he told her that he was 24; [60] in fact, he was 32. HS said that she was really nervous when raising this matter, and that she remembered it “as clear as day”. [61]

Following this conversation and prior to her 14th birthday, the applicant and HS had intercourse on a number of further occasions, each time by the river in Windsor. [62]

On the night of HS’s 14th birthday, the applicant and HS were driving in the applicant’s blue Hummer. When it struck midnight, the applicant pulled over and asked HS to be his girlfriend. [63] HS said yes. [64]

The applicant then began taking HS to hotels. A few weeks after the incident the subject of Count 3, he took her to the Country Comfort Casula, where they went inside the hotel room, which had been paid for by the applicant, started “making out”, and then the applicant undressed her, performed cunnilingus on her, and they then had penile-vaginal sex, he wearing a condom. [65] At this time she was aged 14 (Count 4).

The applicant subsequently took HS to the Country Comfort Casula on many occasions. She said that she visited the hotel very frequently with him, almost twice a week for four years. [66] They would typically go to the hotel around lunch time to afternoon; she would leave school early, “just to hang out with him”. [67] In 2013, when she was in year 9, he would pick her up from the school, in early to mid-afternoon. [68] She described her school uniform, [69] and although she did not explicitly say that she was wearing it when he collected her from school, it is implicit in her evidence that she was.

Sometime later – about six months after they first had intercourse – HS visited the applicant’s apartment in Mascot for the first time. It was night when they arrived. [70] They went into the loungeroom and were on the lounge with the TV on. The applicant performed cunnilingus on her (Count 5) and they then had penile-vaginal intercourse (Count 6). They then watched television and after some time he again performed cunnilingus on her on the lounge (Count 7) and they again had penile-vaginal sex (Count 8). They then moved from the lounge into the applicant’s bedroom, where he again performed cunnilingus on her and they had penile-vaginal intercourse (Count 9). They slept in the apartment that night. HS was then aged 14.

On an occasion when they were at the Country Comfort Casula, HS learnt that the applicant had a girlfriend. HS said that they were fighting because “I knew he had a girlfriend and things he was saying just didn’t add up”. [71] She locked herself in the bathroom and refused to come out until the applicant told the truth about his situation, and he eventually told her that he had a girlfriend. She then left the bathroom and wanted to go home, but the applicant wanted to have sex and convinced her to participate. He then performed cunnilingus on her (Count 10). At this time, she was 14 years of age.

From 2013 onwards, the applicant took HS on a number of holidays. The first of these trips, which was to the Gold Coast, was in 2013 when she was 14 years old. [72] They stayed at the Hilton Hotel, and the applicant gave her $500 to go shopping while he was at work. They had intercourse during this trip. [73] Later in 2013, the applicant arranged a second trip to the Gold Coast. [74] They stayed at the Hilton Hotel for one night; he bought her alcohol and they had intercourse twice. [75]

They also travelled to the Blue Mountains. According to HS the first such trip was in 2014, and she was not sure whether it was before or after the second trip to the Gold Coast. [76] They arrived at a hotel in the Blue Mountains late at night, and had penile-vaginal intercourse. They travelled to the Blue Mountains a second time on a weekend, arriving late at night, and had penile-vaginal intercourse in his car in a carpark near the hotel (Count 11). [77] They decided to get a hotel and when they arrived had penile-vaginal intercourse a second time (Count 12).

The applicant also took HS to a hotel near Wet and Wild at Prospect in 2014. HS’s friend TA accompanied them. During this stay, the applicant and HS had intercourse in the bathroom (Count 13).

Also in 2014, the applicant took HS and a friend CK to the Country Comfort Hotel in Liverpool, where the three had sexual intercourse. [78] The applicant performed cunnilingus on HS (Count 14), then performed cunnilingus on CK, then had penile-vaginal intercourse with HS (Count 15), then had penile-vaginal intercourse with CK. The applicant left, giving HS $200 “so she could get home the next day”. [79]

HS said that the applicant would regularly take photographs of her “when we were hotels, doing sexual acts”. [80] On one occasion, while staying at the Country Comfort Hotel in Liverpool, he inserted his fingers inside her while she was on a bed (Count 16). At this time she was below the age of 16. [81] The applicant took a photograph of himself with his fingers inside her vagina (Count 17). [82] On other occasions, the applicant asked HS to take sexual photographs of herself (Count 18). [83]

The applicant gave evidence that he first met HS in February 2013. [84] He said that he had been chatting with RJ on Facebook and RJ suggested that he meet up with her and her friend. He denied directly contacting HS before the meeting. He said that they met outside a pub in Windsor, and that HS told him that she had turned 16 four or five months earlier. [85] He said that there was no discussion of HS being at school.

According to the applicant, after their first meeting, he met with RJ and HS on a number of occasions, and still believed that HS was 16. He said that HS told him that she was learning to drive. [86] He denied ever buying her alcohol. [87] He denied that HS was ever wearing her school uniform when they met. [88]

The applicant denied having intercourse with HS before November 2013. [89] In particular, he denied having intercourse with her in the Hummer (Count 3), [90] and he also denied ever having had intercourse with her in his apartment (Counts 5-9). [91] He said that HS had only ever walked “about two or three steps” into his apartment. [92] He denied ever having had intercourse with her in the Blue Mountains (Counts 11 and 12), [93] or at Wet and Wild (Count 13). [94] He denied staying at a hotel with her in the Blue Mountains. He said that the booking that he made (for a spa, fireplace room for two people) [95] was for an employee who was working in the area at the time. [96] He acknowledged booking a hotel room at Wet and Wild, but said that this was for HS and her friend TA. [97]

The applicant said that he first had intercourse with HS in late November 2013 at Hunts Hotel Casula (Count 4). [98] He agreed that he engaged in the intercourse referred to in Count 10, [99] and that with HS and CK referred to in Counts 14 and 15. [100] He accepted that he took photos of HS on his iPhone during intercourse, and also that he had taken her to Queensland, and that it was possible that some of the photos of her were taken on that trip. He maintained that he believed that HS was 16 years old, based on their previous conversations, her appearance, and the topics of their conversations. [101] He maintained that she spoke to him about different types of coffee, what he liked and what she liked. He said that he understood from her Facebook account that she was a “young girl”, but denied that she appeared to be a school student. [102] He also denied that she had ever told him that she was under the age of 16. [103] He denied having told her that he was 24. [104]

The applicant said that he first discovered her real age in mid-2015, when he was teaching her to drive. [105] He said that when he took her licence to write down her licence number, he realised that her date of birth was not what he expected. He said that he asked her how old she was, and she replied 16. The applicant said that he responded “are you effing serious?”, “you should be 18 now, you shouldn’t be 16”. [106] The applicant said that up to this point, he had believed that HS was 16 when they first met.

When the applicant was arrested on 25 February 2015, police executed a search warrant of his apartment and seized a number of items, including laptop computers, subsequent examination of which found a password protected file containing child abuse material. [107] The password for the file was nathanhxx123. [108] The child abuse material contained images of HS and other girls under the age of 16 years. [109] This material is the subject of Counts 19-22).

The applicant denied any knowledge of the child abuse material found on his computer, other than the images of HS. [110] He said that when he worked in Alexandria, he would often leave his laptop unattended, and that “everybody” in the office knew his password. [111]

On the second day of the trial, in the course of HS’s evidence, she was asked: [112]

The morning adjournment was taken immediately after this exchange. In the absence of the jury and the witness, defence counsel applied for the discharge of the jury, on account of the prejudice said to arise from the jury having been informed, in an unresponsive answer, that the applicant was in custody and presumably had been so for some considerable time. [113] The judge declined to discharge the jury, indicating that she proposed to direct the jury that the fact that a person goes into gaol at any time is irrelevant, and is an ordinary part of what happens when people are arrested; that the applicant was not currently in gaol, and that in any event it was irrelevant to their deliberations. When the jury returned after the adjournment, her Honour directed them:

Her Honour subsequently gave reasons for declining to discharge the jury, noting that not every potentially prejudicial event during a trial requires a discharge of the jury, and that while the appearance to the jury that a person is in custody could in some circumstances be “tantamount to evidence of bad character; that he cannot be trusted to be free in the community”, nonetheless “one cannot assume that the jury or any member of it would infer guilt as a result of speculating, or even believing that [the applicant] is in custody”. [115] Her Honour added that many accused persons are in custody at the time of their trial and the fact of such custody will often be obvious to the jury, and added:

Her Honour observed that it was not the case that the jury were aware that the accused was in custody for having committed a prior offence, or because of any specific concern about bad character. Her Honour stated that the direction that she had given to the jury was that there was no evidence to suggest that, even if the applicant went into custody some time ago, he had remained there; that there was no evidence that he was still in custody; and that she had warned the jury not to speculate and to ignore the evidence of HS in respect of the issue of the applicant’s custody. Her Honour concluded that “any perceived prejudice can be cured by the direction in the terms that I have given”. [116]

Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides as follows:

When an appeal is brought to this Court by a person who has been convicted following the refusal by a trial judge of an application to discharge the jury, the appeal is not against the failure to discharge the jury, but against the conviction. [117] In Maric v The Queen, Gibbs ACJ said:

Thus the issue posed for this Court by s 6(1) is not whether the trial judge was wrong in refusing to discharge the jury, but whether there has been a miscarriage of justice. This was explained in Crofts v The Queen: [118]

As has been observed elsewhere, [119] the concluding statement in the above passage, that: “In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?”, must now be qualified: in Weiss v The Queen, [120] with reference to it and other similar pronouncements about the proviso in common form criminal appeal statutes, it was said:

Recently, in that context, in Orreal v The Queen, Kiefel CJ and Keane J have said (footnotes omitted): [121]

In the same case, Gordon, Steward and Gleeson JJ said (footnotes omitted): [122]

The observations, with reference to a “substantial miscarriage of justice”, refer to the proviso, and not to the anterior question of whether there has been a miscarriage of justice in the sense in which that term is first used in s 6(1). In Weiss, the distinction between the reference to a “miscarriage of justice” where it first appears in the section, and to a “substantial miscarriage” in the proviso, was explained as follows (footnotes omitted):

Further light is cast on this by Patel v The Queen (footnotes omitted): [123]

The Court then proceeded to consider whether the proviso was engaged.

Thus the first question for this Court is whether, in the circumstances of the case, there was a miscarriage of justice, in the wide sense in which that term is first used in s 6(1). [124] Only if that question is answered in the affirmative does there then arise for consideration the issue raised by the proviso, whether no substantial miscarriage of justice has actually occurred.

As to what amounts to a “miscarriage of justice” in that wider sense, it is well established, as the passage cited above from Crofts v The Queen [125] confirms, that not every inadvertent and potentially prejudicial effect that occurs during a trial requires that the jury be discharged. In considering whether there has been a miscarriage, it is relevant to ask whether there is a significant possibility that but for the irregularity, the jury acting reasonably would have acquitted the applicant of the charge, [126] or would have entertained a reasonable doubt about the accused’s guilt. [127] A miscarriage of justice is, therefore, a material irregularity, that is to say one which could have influenced the verdict of the jury. [128] In judging whether there has been a miscarriage of justice, any direction given by the trial judge in respect of the inadmissible evidence, and its likely effectiveness, will be of significance. [129]

Although the appeal is from the conviction and not from the trial judge’s refusal to discharge the jury, that is not to say that the trial judge’s ruling is without significance in the appeal. First, it is clear enough that if the trial judge’s discretion miscarried, in the House v The King [130] sense, there will have been a miscarriage of justice. And secondly, if it does not appear that the trial judge’s discretion has miscarried, while that is not conclusive, considerable deference will be afforded the trial judge’s decision, having regard to the advantages of a trial judge in evaluating the state and atmosphere of the trial, as appears from the passage cited from Crofts above.

In R v Ball, Evatt CJ and Herron J (as he then was) said (footnotes omitted): [131]

Brereton J similarly identified the ultimate question for this Court as whether there had been a miscarriage of justice, making due allowance for the position of the trial judge: [132]

In Trieu v R, [133] in a passage which was cited with approval in Scott v R (“Scott”), [134] this Court said:

In Scott, [135] the position was summarised as follows:

Although in my respectful opinion the true position is that ultimately the only question for this Court is whether there has been a miscarriage of justice, the statement in Scott is correct, as a miscarriage of the trial judge’s discretion will inevitably be a miscarriage of justice. Moreover, the statement in Scott conveniently reconciles the authorities.

For the applicant, it was submitted that in the circumstances of his trial, the prejudice created by the disclosure that he had been in custody was significant, the issues in the trial being such that the offences were not marked by such a level of depravity or violence that members of the public would expect an accused to be deprived of his liberty. In addition, it was submitted that the applicant was handcuffed to be taken to and from the courtroom, and that the presence of Corrective Services officers meant that his presentation before the jury was such that the reasonable observer would have concluded that he was a security threat despite the nature of the charges, his lack of criminal history, and the limited issue to be determined in the trial. It was submitted that no direction could have cured the prejudice.

The trial judge observed, generically, that “the appearance to the jury that a person is in corrective services’ custody, and in this case may have been so for many months, could in some circumstances be tantamount to evidence of bad character, that he cannot be trusted to be free in the community, which ordinarily would be inadmissible”. However, as the judge also observed, accused persons routinely sit in the dock, surrounded by uniformed Corrections officers, in the presence of the jury which is, of itself, suggestive of custody. Thus in R v Sinanovic, Hulme J (with whom Wood CJ at CL and Greg James J agreed) observed: [136]

The mere fact that an accused person is in custody at the time of trial is not exceptional; it is an ordinary aspect of the criminal justice process. Often it will be self-evident to the jury. The fact that from circumstances such as the presence of the accused in the dock accompanied by correctional officers the jury is aware that an accused is in custody is not an irregularity in the trial. Although in this case that circumstance might have been deduced from HS’s non-responsive answer, at least to the extent that he had at some stage been in custody, it is an ordinary aspect of the criminal justice system that an accused person who is arrested is in custody until and unless bail is granted. If knowledge of these matters were regarded as prejudicial, rather than unexceptional, the criminal justice process would be nigh on unmanageable.

In any event, the trial judge gave the jury a clear and cogent direction that it was irrelevant that a person may have been arrested or at some point been in custody, and that that was an ordinary incident of the criminal justice system. Proceeding on the footing that the jury acts in conformity with such directions, [137] there is even less reason to suppose that such information would have operated prejudicially to the appellant.

No specific error in the trial judge’s discretionary decision to decline to discharge the jury has been identified. No miscarriage of justice is established. This ground of appeal fails.

The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen, [138] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows:

In considering this ground, an appellate court “must not regard or discount either the consideration the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses”. [139] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. [140] These considerations are reinforced by the following observations of the High Court in The Queen v Baden Clay (footnotes omitted): [141]

Nonetheless, the concluding words of that passage, and the authority cited for it, [142] show that the ultimate question remains whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Although in written submissions the applicant’s counsel referred to the observations made by the trial judge in the sentencing proceedings about the evidence and the basis of the conviction, at the hearing it was accepted that the sentencing judge’s remarks could not be referred to for the purpose of determining whether or not the verdict was unreasonable. [143]

The case was presented and left to the jury on the alternative bases primarily that the applicant knew that each complainant was not of the relevant age, or alternatively that he did not honestly and reasonably believe that they were. In other words, to convict the applicant, a juror had to be satisfied only that it was not reasonable for him to believe that the complainants were above the age of consent. It is not possible to ascertain on which basis the jury convicted the applicant. Indeed, it is quite possible that some jurors convicted on the primary basis and some on the alternative basis. It is also possible that they proceeded on the basis that if satisfied that any belief that the complainants were of age 16 was not reasonable, it was unnecessary for them to go any further.

Thus in the context of this case, the question for this Court is whether it was open (in the sense described in SKA v R [144] and Libke v R [145] ) on the whole of the evidence for the jury to be satisfied beyond reasonable doubt, either that the applicant knew that DA and HS were respectively not of the relevant age, or that he did not have an honest and reasonable belief that they were. In order to uphold the convictions, it suffices that this Court conclude that it was open to the jury to be satisfied, beyond reasonable doubt, that if the applicant believed that the complainants were of 16 years of age, that belief was not a reasonable one. Thus the real issue for this Court is whether it was open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt that it was not reasonable for the applicant to believe that the complainants were of age.

For the applicant it was submitted that the jury ought to have entertained a reasonable doubt, in that it was reasonably possible that the applicant had an honest and reasonable belief that the complainants were 16 years of age, founded on the following matters (I have re-arranged the structure somewhat):

In respect of counts 1-13 and 18-22, the applicant advanced defences in addition to honest and reasonable mistake of fact. Relevantly, he said that the events referred to in Counts 1 and 2 took place after DA actually turned 16 in May 2013. He denied ever having purchased alcohol for HS or having sexual intercourse with her in his Hummer or by the river at Windsor as alleged in count 3. He denied having had sexual intercourse with HS in the period referred to in Count 4. He denied that the acts referred to in Counts 5-9 took place, and denied that he ever had sexual intercourse with HS at his Mascot apartment as alleged in those counts. Although he admitted that the act referred to in Count 10 took place, he said that it was at a different (later) time. He denied ever having had sexual intercourse with HS in his vehicle, and staying with her overnight in a hotel in the Blue Mountains, as alleged in Counts 11 and 12. He denied having had sexual intercourse with HS at the hotel in Prospect as alleged in Count 13. He admitted the acts referred to in Counts 14 and 15, at or about the time they were alleged to have occurred; and he admitted the act referred to in Count 16, of which there was photographic evidence, the photograph being referred to in Count 17. He denied that he was aware of the child abuse material on his laptop computer, referred to in Counts 19-22.

The convictions on Counts 1-13 thus involved rejection not only of the defence of honest and reasonable mistake, but also of significant other aspects of his evidence. In particular, the jury convicted him in respect of Counts 1 and 2, 3, 5-9, 11-13 and 19-22, notwithstanding his evidence that the acts of intercourse alleged in Counts 1 and 2 occurred at a time when DA was actually aged 16; that the acts of intercourse alleged in Counts 3, 5-9, and 11-13 did not occur; and that he was quite unaware that the child abuse material referred to in Counts 19-22 was on his computer.

There were multiple reasons for the jury to be sceptical of his evidence. They include, first, that he claimed to be unaware that the child abuse material other than the images of HS was on his computer, although it was contained in the same file in the same encrypted archive on his laptop protected by the same password as the material relating to HS; he suggested that it might have been saved on his computer by work colleagues. This was utterly implausible. Secondly, the applicant’s claim that the hotel room in the Blue Mountains was booked for an employee was also implausible. Thirdly, and perhaps most tellingly, in significant respects where his evidence conflicted with that of DA or HS, their versions were corroborated. His denial that DA or HS were ever in a school uniform when he met them was contradicted not only by the evidence of DA, but by the corroborating evidence of TG, [146] who said that both she and DA were in school uniform on the first occasion when DA met the applicant. Moreover, the applicant was aware that DA’s mother required that she be home by 4pm, and he complied with that requirement by driving her home from the motel, having collected her from the park. In those circumstances it is inherently likely that she was and remained in school uniform. Likewise, given that he sometimes picked up HS from school in early to mid afternoon, and she described her school uniform, it is very likely that she was wearing it when he collected her. While the circumstance that a person is in school uniform and therefore presumably a school student of course does not necessarily mean that they are under 16 years of age, the applicant’s denial that they were, in circumstances where the evidence to the contrary was corroborated, was plainly capable of detracting from his credibility. Further, the applicant’s denial that he ever purchased alcohol for HS or her friends [147] was contradicted by HS’s evidence which was corroborated by that of RR, [148] SM, [149] and TB. [150] And the applicant’s evidence that he and HS did not begin to correspond on Facebook until February 2013, [151] was contradicted by her evidence that he bought her flowers and a teddy bear for Valentine’s Day in February 2013, [152] which was corroborated by the evidence of RR, who said that the applicant messaged her on Valentine’s Day and said that he was going to pick her up to surprise HS, and that they stopped on the way to pick up HS when the applicant bought some flowers and a teddy bear. [153]

DA admittedly deceived her mother about her relationship with the applicant; it would have been extraordinary had she not. HS admittedly falsely told the applicant that she was 15 years old when they first met; further, when first interviewed by police she said that she thought she had told him that she was 15 or 16 years old. At trial, her evidence was that she now remembered that she said she was 15. The jury might, having heard and seen HS, been satisfied of her explanation that she now remembered that she in fact said that she was 15. But it if they thought it was reasonably possible that she had said that she was 16, they might properly have reasoned that her mere statement that she was 16 did not of itself provide reasonable grounds for a man of 32 years to believe it – especially if the jury accepted that, as both complainants testified, he himself misrepresented that he was only 22 or 24.

Thus, contrary to the submission on behalf of the applicant that his evidence was not substantially shaken as to his belief and that he presented as honest as to the fact that the young women were legally capable of entering into a consensual relationship, it is clear that his evidence was not such as to cause the jury to entertain a reasonable doubt as to his guilt of any of the charges.

DA gave evidence that in their initial Facebook conversations she told the applicant that she was 14 years old and in Year 8 at school: [154]

Further, DA said that they had the following conversation before the first occasion on which the applicant took her to the hotel and they had sexual intercourse: [155]

In addition, DA said that the applicant gave her a gold bracelet for her 15th birthday, as a birthday present. [156] In cross examination, it was put to her that she wanted the applicant to believe she was over 16, and she disagreed; it was further put to her that she wanted him to believe that she was over 16 so that she could have a relationship with him, to which she answered: “That’s not true”. [157]

HS gave evidence that she told the applicant, a few days before her 14th birthday, that she was thirteen: [158]

And: [159]

Thus, contrary to the applicant’s submission, there was direct evidence that each complainant told him her true age.

The circumstance, if it be accepted, that the applicant did not endeavour to conceal their meetings or deny the relationships, might go to the honesty of his belief, but says nothing as to its reasonableness.

The circumstance that the photographs of DA and HS were not such that they appeared demonstrably under 16 years of age is equivocal. Such photographs no more provide a reasonable basis for believing that they were 16 than the contrary. At the highest, they might support a proposition that on physical appearance alone, the complainants were not obviously under 16. It does not follow that it was reasonable to believe that they were over 16.

Insofar as DA was sufficiently unsupervised to be able to travel with him to hotels, in the context that this took place immediately after school, and that she had to be home by 4.00pm, it provides no ground for believing that she was over 16.

Insofar as HS appeared relatively independent, was able to travel with the applicant including overnight and interstate unsupervised, and used cannabis and alcohol, the fact that a young person uses cannabis and alcohol no more implies that she is over 16 than the fact that she wears a school uniform implies that she is under 16. Indeed, the use of alcohol and drugs by an adventurous and rebellious teenager says nothing as to her age.

Although the evidence did not directly establish that the applicant had read it, DA’s Facebook profile accurately disclosed her age, and it was as a result of his sending her a “friend request” on her Facebook account that contact between them was established.

When she first met the applicant, HS was 13 years of age only. One of the email accounts she used to communicate with the applicant was hxxsxxDDMMYY@gmail; that is to say, it used her actual birthdate as part of the address. [160] It is incredible that he would not have suspected that she might have been underage.

As has been observed, there was direct evidence that DA was in her school uniform when she met the applicant, and evidence from which it might be inferred that HS was. The wearing of a school uniform – and the concomitant indication that the person is a school student – serves as a clear warning that she is young and potentially underage. And even if one does not accept that it was sufficiently established that HS was wearing a uniform, there was direct evidence that the applicant sometimes collected her from school and therefore knew that she was a school student.

There was evidence that DA had a requirement to be home by 4.00pm, with which the applicant complied by driving her from the motel back to the park where he had met her in time for her to get home by 4.00pm. That is a clear indication that she was under parental supervision and control.

Significantly, there was evidence that to entice them into a relationship, the applicant misrepresented his own age to both complainants. Although he denied having told either complainant that he was 22 or 24 respectively, the jury was entitled to accept the mutually reinforcing evidence of the complainants that he did; moreover, there was evidence from which it was open to infer that he held himself out to others via fake Facebook accounts as much younger than he was through the use of photographs of younger males. [161] A man of 32 who misrepresents himself as being ten years younger can hardly rely on the mere statement of an adventurous and impressionable teenager that she is 16 as providing reasonable grounds for believing that she is.

Subject to a reservation about Count 3, referred to below, there was direct evidence from each complainant that before she first had sexual intercourse with the applicant, she disclosed to him her true age. In circumstances where significant aspects of their evidence, where it was inconsistent with evidence of the applicant, was corroborated, and where some aspects of his evidence were highly implausible, it was plainly open to the jury to accept the complainants as credible and reliable. This was not a case in which there was other evidence, or objective circumstances, inconsistent with the evidence of the complainants, which required the jury, acting rationally, nonetheless to entertain a reasonable doubt as to the applicant’s guilt. [162] They were entitled to accept the complainants’ evidence and if so to be satisfied beyond reasonable doubt that the applicant actually knew that they were not of the age of 16.

But even if they did not, and considered it reasonably possible that the applicant honestly believed them to be 16, they were entitled to conclude that any such belief on his part was not reasonable. Even if the jury thought it was possible that the complainants did not disclose their true ages, they were entitled to think that on the corroborated evidence that they presented to the applicant in their school uniforms (or, in the case of HS, at school), that DA had to be home by 4.00pm, that HS was only 13 years of age, and that on any view they were school students of marginal age, it was unreasonable for the applicant to believe that they were over 16 on their own say so, especially in circumstances where there was evidence from both complainants that he misrepresented his own age. The jury was entitled to consider that, even if the complainants had told the applicant that they were 16, he took no steps objectively to verify that, in circumstances where he knew that they were on any view of marginal age, and he was himself prepared to misrepresent his own age to them in order to have a sexual relationship with them.

Count 3, which concerns HS, and charged aggravated sexual intercourse with a child under the age of 14, is in a slightly different category. According to HS, she had prior to that event told him that she was 15, if not 15 or 16, and she did not disclose her true age of 13 until after the event the subject of Count 3. Thus even on the Crown case, at the time of the conduct the subject of Count 3, HS had told the applicant that she was at least 15, and had not yet disclosed to him that she was but 13. The applicant of course did not embrace this to claim that he believed that he was committing the lesser offence under s 66C(3), as distinct from the more serious offence under s 66C(2). In any event, in the context of a disclosure that she was 15, reasonable grounds for a belief by a man of 32, who was misrepresenting his own age, wishing to have sex with her, were not provided by mere acceptance of her word.

It follows in my judgment that the jury were entitled to be satisfied, beyond reasonable doubt, of the applicant’s guilt. Ground 2 fails.

All the grounds of appeal against the convictions therefore fail. I propose that leave to appeal against the convictions be granted, but that the appeal be dismissed.

The applicant also seeks leave under Criminal Appeal Act, s 5(1)(c) to appeal against the sentence. The sentence imposed by the trial judge was an aggregate term of 13 years and 6 months imprisonment, commencing on 14 October 2016 and expiring on 13 April 2030, with a non-parole period of 8 years expiring on 13 October 2024. The indicative sentences for the various counts were as follows:

Totally accumulated, the indicative sentences totalled 59 years; the aggregate term of 13 years and 6 months thus incorporates a very substantial measure of concurrency.

I have had the considerable benefit of reading in draft the reasons prepared by N Adams J. I respectfully agree with her Honour’s reasons for concluding that ground 1 (finding that the offence was ‘made substantially worse’ by the applicant’s subterfuge in relation to his partner) and ground 2 (not accepting that the applicant’s prospects of rehabilitation were good) fail. Further, I agree that, for the reasons explained by her Honour, the appeal must succeed on ground 3A, added by leave at the hearing, in that the sentencing judge erroneously took into account, in respect of count 3, a standard non-parole period which was not applicable at the time of the offence. This Court must therefore exercise afresh the sentencing discretion.

The trial judge sentenced the applicant on the basis that the applicant honestly believed DA and HS both to be 16, but that belief was not reasonable. Her Honour said: [163]

N Adams J is of opinion that, save in respect of Count 3, the evidence established beyond reasonable doubt that the applicant knew that each complainant was under the relevant age. I agree with her Honour, [164] that in re-exercising the sentencing discretion, in circumstances where the applicant has been afforded an opportunity to address the issue, this Court is not bound by the finding made by the trial judge as to the applicant’s state of knowledge. The relevant question is whether this Court is satisfied beyond reasonable doubt that the applicant actually knew that the victims were under the age of 16. However, in re-visiting this question, this Court should pay considerable deference to the advantage enjoyed by the trial judge who saw and heard the relevant witnesses. For the following reasons, I have come to a different conclusion.

While, as I have explained above, the jury’s verdicts necessarily involve rejection of substantial parts of the applicant’s evidence and acceptance of substantial parts of the complainants’ where their evidence was inconsistent with his, the one thing they do not necessarily establish is that the jury collectively – or some of the jurors – were satisfied that the applicant did not believe them to be of the relevant age, albeit unreasonably so. Given the way in which the case was left to the jury, they did not have to resolve that issue. It is entirely consistent with their verdicts that they – or at least some of the jurors – convicted on the basis that, even if he did believe them to be of age, that belief was not reasonable. Jurors who reached that conclusion had to go no further. Thus, while the verdicts necessarily involve that the jury accepted the evidence of the complainants in many respects, they do not necessarily involve that they accepted their evidence as to what they told the applicant as to their respective ages. It was, therefore, for the trial judge to resolve whether he was to be sentenced on the basis that he honestly (but unreasonably) believed the complainants to be above the relevant age, or knew that they were not. Her Honour’s conclusion has been set out, above. [165]

There was no doubt evidence on which it was open to her Honour to be satisfied, beyond reasonable doubt, that the complainants told the applicant their true ages. However, her Honour was self-evidently not so satisfied. It is true that her Honour did not, in the remarks on sentence, expressly refer to the demeanour or presentation of the witnesses. However, her Honour advanced some reasons for entertaining a “small but reasonable doubt” that they might not have been truthful with the applicant about their age. At the time of the offences, both had a motive to be untruthful as to their ages, in order to have a relationship with the applicant. As to DA, her Honour noted that there was evidence that she deceived her mother about the relationship because she was worried that her mother would not approve given that the offender was older, showing a concern on DA’s part about the age gap between them and a willingness to lie about it. While this does not compel a conclusion that DA lied on oath about her conversations with the applicant, it shows that she is capable of being deceptive. As to HS, it was her own evidence that when they first met she told the applicant that she was 15 – admittedly a deliberate lie – and in her police statement, made at an earlier time, she had said that she told the applicant she was 15 or 16. In cross-examination she was less than adamant that she had not said she was 16: [166]

Although she maintained that she told the applicant her true age, she also agreed that she wanted (generally) to be considered older than she was, and went out of her way to do what she could to pass herself off (generally) as older than 13. [167] Her Honour considered it possible that, given that she was motivated to lie about her age in order to have a relationship with the offender, she may have told him that she was 16.

It is a rare case in which a jury – or a sentencing judge – is bound to accept evidence as affirmatively establishing an element of an offence beyond reasonable doubt, all the more so where, as here, that evidence is neither unchallenged nor uncontradicted. Acceptance of a witness’ evidence in most respects does not dictate that it must be accepted in all respects. In particular, acceptance of the evidence of the two complainants as credible and reliable in most respects does not dictate acceptance beyond reasonable doubt that they told the applicant their true ages. One can have a reasonable doubt about that matter, as the trial judge did, without disbelieving the evidence of the complainants on this topic. It was not necessary to the entertaining of a reasonable doubt for her Honour to reject their evidence that they told the applicant their true age; her Honour merely entertained a doubt about it in this respect.

We have not heard the complainants, or the applicant, give evidence. Having regard to the trial judge’s position of considerable advantage, I am unpersuaded that I can substitute a finding that the applicant actually knew that the complainants were underage. I would therefore resentence the applicant on the same factual basis as did the trial judge, thus giving him the benefit of the small but reasonable doubt that he honestly but unreasonably believed that the complainants were not underage. That said, I consider the degree of his unreasonableness to be high indeed, and not far short of recklessness. The “red flags” to which I have referred provided a clear warning that the complainants were of marginal age and that it behoved the applicant to take steps to establish their true age objectively if he wanted to embark on a sexual relationship with them.

I have independently and afresh considered the appropriate indicative and aggregate sentences. All of the offences other than count 3 carried a maximum penalty of 10 years imprisonment. Count 3 carried a maximum penalty of 20 years imprisonment. At the relevant time, none had a standard non-parole period.

The conduct of the applicant, who manifests no remorse save for himself, involved the systematic and ongoing seduction and abuse, using his trappings of fame, success and affluence, and deceit as to his own age, of two vulnerable teenagers whom he ought to have known might well be under age. As I have observed, while I proceed on the basis that he believed them to be at least 16, that belief was unreasonable to a high degree.

In respect of some counts (in particular counts 1, 17, 18, and 19-22), I would have indicated a somewhat longer sentence than the trial judge. In respect of count 3, I would have indicated a significantly shorter sentence than her Honour. In respect of counts 10 and 16, I would have indicated a somewhat shorter sentence than the trial judge. Totally accumulated, the total of the sentences I would have indicated for the various separate offences is only marginally less than the 59 years to which the trial judge’s indicative sentences amount.

I would have allowed substantial concurrency between counts 5-9, between counts 11 and 12, counts 14 and 15, counts 16 and 17, and counts 19-22. I would have allowed some slight further concurrency between all the counts relating to HS (3-17); however, after allowing for the substantial concurrency to which I have referred in respect of groups of offences which took place more or less concurrently, it is important to recognise that each such group comprised a separate and further episode of criminal conduct. For the same reason, I would allow only a moderate measure of concurrency between the two counts relating to DA (1 and 2). There would have been little concurrency between the counts relating to DA, those relating to HS, and those relating to child abuse material, each being a separate and distinct course of criminal conduct.

Having undertaken that process, it suffices to state that the aggregate sentence I would have imposed is not less than the sentence the trial judge imposed. [168] I therefore agree with N Adams J that the appeal against sentence should be dismissed, on the ground that no lesser sentence is warranted at law.

N ADAMS J: I have had the advantage of reading the judgment of Brereton JA in draft and agree with the orders he proposes in relation to the conviction appeal.

As for ground one, I agree with his Honour that no miscarriage of justice within the meaning of the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) arose from the answer provided by HA extracted above at [46]. Although I agree in general terms with his Honour’s reasons for that conclusion, I have also had regard to the recent decision of the High Court in Hofer v The Queen [2021] HCA 36; 95 ALJR 937 (“Hofer”) and in particular the judgment of Gageler J at [98]-[123] regarding the meaning of third limb “miscarriage of justice.”

The phrase “miscarriage of justice” appears twice in s 6(1) of the Criminal Appeal Act. It first appears as one of the three limbs upon which the court may allow an appeal. In addition to allowing a conviction appeal if the court is of opinion that the verdict of the jury is unreasonable (“the first limb”), or that that there has been a wrong decision of any question of law (“the second limb”), the court may also allow an appeal against conviction if of the opinion “that on any other ground whatsoever there was a miscarriage of justice” (“the third limb”). Section 6(1) goes on to provide that the court may, even if it is of opinion that “the point or points raised by the appeal” might be decided in favour of appellant, dismiss the appeal if it considers that “no substantial miscarriage of justice” has actually occurred. This is commonly referred to as “the proviso”.

The meanings of both “miscarriage of justice” and “substantial miscarriage of justice” in s 6(1) (and identically worded statutes in other jurisdictions, often referred to as the common form appeal provision) have been the subject of considerable judicial consideration. Despite this, as Gageler J observes in Hofer at [82], prior to Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”), appellate courts in Australia had not reached a conclusion on what if anything was the difference between the two terms. Rather, both issues were considered by the appellate court inquiring as to whether the identified error or irregularity had deprived the appellant of a chance of acquittal: Mraz v The Queen (1955) 93 CLR 493. The way they did so is discussed by Gageler J in Hofer at [83].

The decision in Weiss in 2005 significantly reframed both inquiries. The Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) drew the following distinction (at [18]) between the two phrases in the context of the common form appeal provision:

There was no further discussion of the meaning of third limb miscarriage in Weiss; rather, the focus of Weiss was the application of the proviso. In addition to disavowing the formulation of the inquiry as one of whether the appellant had been deprived of a chance of acquittal, the Court went on to consider the scope of the proviso, particularly at [39]-[41] before stating the following negative proposition at [44]:

Although the High Court in Weiss described a “miscarriage of justice” at [18], by reference to the Exchequer rule, as any departure from a trial according to law, since that decision was delivered not all decisions of the High Court, or this Court for that matter, have approached the assessment of whether there has been a “miscarriage of justice” in the same way. I recently made observations to this effect in Caleo v R [2021] NSWCCA 179 at [156] and provided examples at [156]-[159]. In Hofer Gageler J acknowledged (at [102]) the different ways in which Weiss (at [18]) has been read and applied over the years and went on to state that Hofer was “an opportunity for clarification”.

In Hofer at [103]-[108], Gageler J traces the history of the Exchequer rule before concluding (at [109]) that the reference to that rule in Weiss at [18] is best understood as a reference to the prevailing English and Australian understanding of that term (rather than to the prevailing American understanding of that term described and criticised by Wigmore). What flows from this, as his Honour went on to conclude, is that what the High Court said in Weiss at [18] ought not be taken to mean that the test for a miscarriage of justice under the third limb is “any departure from a trial according to law”.

As Gageler J observes at [109]-[110], Weiss was primarily concerned with the application of the proviso and thus did not present an occasion to explore the “metes and bounds” of the miscarriage of justice ground. His Honour then proceeded to do so noting at [111] (citing Jones v The Queen (1997) 191 CLR 439 at 450) that at a level of generality, a miscarriage of justice would arise "whenever the accused has not had a fair trial according to law".

His Honour went on to consider the relationship between the concepts of an unfair trial and a miscarriage of justice at [113] as follows:

After noting the relevance of a trial being unfair to the question of a miscarriage of justice, his Honour next cited Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 (“Nudd”) as an example of the High Court (post Weiss) requiring a miscarriage of justice to have affected the outcome of the trial. Nudd concerned an allegation of incompetent trial counsel. The passage from Nudd at [24] cited by Gageler J at [115] is as follows:

His Honour then lists some examples which I do not propose to repeat here.

His Honour went on (at [115]) to note the High Court cases in which it has been held that an appellate court will ordinarily need to consider and be satisfied of "a significant possibility” that the impugned acts or omissions affected the outcome of the trial before any conclusion that a miscarriage of justice is established. The cases identified by his Honour, by way of example, were Libke v The Queen [2006] HCA 9; Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52; Jones v The Queen (2009) 83 ALJR 671; Pollock v The Queen; Hargraves v The Queen (2010) 242 CLR 233; Patel v The Queen (2011) 245 CLR 257; [2011] HCA 44; Castle v The Queen (2012) 247 CLR 531; [2012] HCA 29; Craig v The Queen (2016) 259 CLR 449; [2016] HCA 46; Rodi v Western Australia (2018) 264 CLR 202; [2018] HCA 13; De Silva v The Queen (2018) 265 CLR 254; [2018] HCA 44; McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5; and R v Abdirahman-Khalif [2020] HCA 36; (2020) 94 ALJR 981.

His Honour went on note (at [116]) that a miscarriage of justice might arise in different ways, but in all cases:

And at [117]:

After turning to consider the nature of the error in Hofer at [117]-[119], his Honour again expressed the need for there to be some connection between the alleged error or irregularity and the verdict. His Honour put it this way at [120]:

His Honour concluded his consideration of what is meant by third limb miscarriage of justice following Weiss at [123] where his Honour said this:

None of the other four judges expressed any disagreement with his Honour’s formulation of the relevant test. On the contrary, in the joint judgment of Kiefel CJ, Keane and Gleeson JJ their Honours stated the relevant test as follows at [41]:

The decision in Weiss at [18] is cited as authority for this proposition. I have extracted that passage above at [123]. Although it makes no express reference to the need for any prejudice, that is the construction of [18] advanced by Gageler J with which their Honours in the joint judgment took no issue. The majority (only Gordon J dissented) was satisfied that the cross-examination complained of in Hofer amounted to a miscarriage of justice, in the absence of any directions by the trial judge which could have cured the prejudice, because there was a “real chance” that the jury may have assumed that the appellant’s evidence in certain respects was a recent invention (despite other evidence pointing against this conclusion) (at [47]). That is, the majority looked to the possibility that the impugned cross-examination, in the absence of a direction, could have had an impact on the outcome of the trial.

Similarly, Gordon J, although in dissent, was satisfied that there had been a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act. Her Honour expressed the relevant test in s 6(1) in this way (at [130]):

Recently, in Zhou v R [2021] NSWCCA 278, Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) noted the majority decisions in Hofer concerning the meaning of third limb miscarriage and observed the following at [22]:

Applying these principles to ground one, I am not satisfied that any miscarriage of justice arose from the answer provided by HS extracted at [46] above. Unlike in Hofer, the trial judge directed the jury that the impugned answer was irrelevant. The question of the capacity of that answer to impact the verdicts falls to be assessed in the circumstances of that direction (extracted above by Brereton JA at [47]). This is consistent with the judgments in Hofer I have referred to above. In this regard I agree with Brereton JA’s observation at [60] that “[i]n judging whether there has been a miscarriage of justice, any direction given by the trial judge in respect of the inadmissible evidence, and its likely effectiveness, will be of significance”.

I am satisfied that any capacity for the impugned answer to cause a miscarriage of justice was ameliorated by the direction provided. On that basis, I agree that ground one should be dismissed.

I agree with Brereton JA that this ground should be dismissed as well. I am not satisfied that the jury ought to have entertained a reasonable doubt in relation to any of the convictions. My agreement with his Honour on this ground was reached after an independent examination of the trial evidence, some of which I have set out below for the purposes of my fact finding on re-sentence.

His Honour considered this ground having regard to the fact that the Crown case was put on alternate bases. His Honour was satisfied that the verdicts were not unreasonable based on his consideration of the evidence in support of the alternate basis upon which the case was brought (that the applicant was honestly but unreasonably mistaken as to the ages of the victims). For my part, I would arrive at the same conclusion having regard to the primary basis that the Crown put its case: that the applicant knew that the victims were under the age of sixteen years at the time of the offences.

I turn then to consider the application for leave to appeal against the aggregate sentence imposed.

The applicant seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act against the aggregate sentence imposed on him by Judge Wass on 20 May 2020. On that day, he was sentenced to an aggregate term of 13 years and 6 months imprisonment commencing on 14 October 2016 and expiring on 13 April 2030, with a non-parole period of 8 years expiring on 13 October 2024. Brereton JA has set out the indicative sentences above at [104]. All of the offences carried a maximum penalty of 10 years imprisonment, except count 3 which carried a maximum penalty of 20 years imprisonment.

It is to be noted that shortly after he was sentenced by Judge Wass, on 17 July 2020, the applicant was sentenced by Judge O’Rourke SC for two further offences of possessing and disseminating child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). He was sentenced in relation to these additional offences to an aggregate term of 2 years and 6 months imprisonment commencing on 14 January 2024 and expiring on 13 July 2026 with a non-parole period of 1 year and 9 months expiring on 13 October 2025. The indicative sentences were:

This appeal does not concern these subsequent convictions or aggregate sentence.

The applicant seeks leave to appeal against the aggregate sentence imposed on him by Judge Wass on the following grounds:

In the Crown’s written submissions filed on 26 May 2021, counsel for the Crown submitted that none of the four grounds in the sentence appeal relied upon had been established but noted an error in relation to the standard non-parole period (“SNPP”) for count 3. The Crown conceded that this was an error such as to require this Court to exercise its sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell“). For reasons provided below, I am satisfied that the concession was properly made and this Court is required to re-sentence the applicant.

The applicant subsequently sought and was granted leave to rely upon an additional ground 3A as follows:

The proceedings on sentence were conducted on 24 April 2020.

A Crown bundle was tendered comprising a victim impact statement (“VIS”) of the HS, a schedule of photographs and videos (from the child abuse material), a Crown sentence summary, the applicant’s criminal history, and two sets of written submissions. The Crown also tendered a document headed “Fact finding Proposed by the Crown Following Trial” which was a summary of the evidence at trial, particularly that of the two victims.

The victim HS described in her VIS the impact of the applicant’s grooming, including that the “lifestyle” he offered became more attractive than her education and caused her to lose interest in friends her own age. She described losing her childhood and teen years as a result of being groomed between the ages of 12 and 17. She said that she lost her ability to pursue an education and her connections to her family and peers her own age. She described feeling lost and emotionally disconnected from her support system as a young adult. HS said she was still trying to come to terms with the harm she suffered from the only person who was kind to her.

The victim DA did not provide a VIS.

Counsel for the applicant tendered a bundle comprising two handwritten letters from the applicant, two character references, medical records relating to a head injury, a psychological report of Mr John Machlin dated 25 November 2019, a letter from a Salvation Army chaplain, a certificate of completion of the “Positive Lifestyle Program” and written submissions.

Mr Machlin’s report contained a summary of the applicant’s background. He was raised in a small town in Tasmania as one of six children. He described his childhood as “pretty good”. He got on well with his parents but was sexually abused when he was seven or eight years old by the minister of his church for about one year. His parents separated when he was 15 years old and when he was 18, he moved to Sydney to pursue his interest in the media.

The applicant left formal schooling at the end of Year 11 and started doing work experience with ABC News. He then became a cameraman with 7 News and developed specialised skills in aerial cinematography. His skills were in high demand in the international film industry and the applicant reported working on over 50 movies and 100 documentaries. In 2016, he was nominated for an Emmy Award and also won several Australian Cinematography Society Awards. He developed a Rural Fire Service Helicopter Surveillance System which was used to map fires from the air. The applicant reported that the RFS still used that system.

The applicant had no physical health concerns. Although he had no history of psychological or psychiatric intervention, he reported that past traumatic events in his life were impacting him in custody and he had developed Post-Traumatic Stress Disorder (“PTSD”). The traumatic events included not only his own child sexual abuse but also witnessing various disasters in his career as a news cameraman. Those disasters included the 2003 Waterfall Train Crash, the 2004 East Coast Targa Rally Crash and the 2011 WA Ultramarathon where the applicant was involved in the helicopter rescue of two women who were caught in a bushfire.

Mr Machlin opined that the applicant was suffering from PTSD due to trauma symptoms that had surfaced while in custody related to the child sexual abuse and traumas the applicant experienced during his work. This condition overlapped with “other forms of anxiety and depressed mood” related to the losses the applicant had suffered since his arrest. Under the heading “conclusions” the report noted the latent effects of past traumas but opined that “[n]o known condition was manifest at the time of the offences”.

As for his attitude to the offences, Mr Machlin observed that the applicant maintained his position at trial: he admitted some sexual activity but denied knowing the victims’ true ages. The fact that the applicant made no admissions in his interview with Mr Machlin meant that, “his motivations or reflections in relation to the offences were not accessible to interview”.

The applicant was described as “remarkably high-functioning” at the time of the offences, having achieved considerable success and provided significant services to the community. Mr Machlin opined that “[a]ny specific aberrations in respect to his prior sexual functioning remain unclear”.

Based on the information provided to him, Mr Machlin noted that “there [was] no precedent to his offences, and the information … available … [did] not elucidate any clear causes or contributing factors to his offences.” Mr Machlin recommended psychological therapy and a review of the applicant’s medication. The report concluded as follows in relation to the applicant’s future risk:

The applicant prepared a 30-page handwritten statement outlining the losses he had suffered since his arrest. This somewhat rambling document included descriptions of all that he had lost as a result of the charges interspersed with a list of all that he had achieved prior to entering custody. The items covered in the letter include: loss of family relationships; loss of career; developing a fire mapping system for the RFS; the WA Ultramarathon Rescue; clients’ refusal to pay invoices leaving him in debt of over $280,000; defaults on loans meaning he will need to declare bankruptcy; loss of the relationship with his daughters and inability to support them; time on remand in the MRRC including being branded a paedophile and experiencing or witnessing assaults; the Waterfall Train Crash; the lack of resources in prison for treatment of PTSD; the Cronulla Riots; the East Coast Targa Rally Crash; being stripped of prestigious awards and accreditations; the fact that his Diazepam is not available in the prison system; the fact that after publicity of his charges, he did not receive his Emmy award certificate and he was ex-communicated by the industry; the fact that the helicopters over the MRRC remind him of the industry from which he has been ostracised; his once extensive travel for work is now likely to be subject to indefinite restrictions; and his memories of child sexual abuse when he was seven or eight years old are now part of his trauma experience in prison.

The applicant gave evidence on sentence. He discussed his career achievements in detail, including his fall from grace upon his arrest and his belief that he would never be able to obtain work in the same industry again. He stated that he was “hated instantly” and immediately started receiving messages from companies he had worked for saying that they had no interest in ever working with him again. The applicant described the loss of his career and personal freedom as “beyond devastating”.

The applicant gave evidence about the impact of the convictions on his personal life, including that his two daughters no longer wanted any contact with him. The applicant also stated that he had lost contact with his brothers after his arrest. The applicant described the conditions he had experienced in custody while on remand, including that he had been in maximum security and on “limited association”, that he had witnessed others being stood over in gaol, had been threatened with physical violence and on one occasion was physically assaulted.

The applicant stated that he had been sexually assaulted at the age of seven or eight and that this had made it difficult for him to trust people. He said that this had been impacting him more while in custody as he had more time to reflect on what happened. The applicant also discussed his diagnosis of PTSD as a result of the traumatic events he witnessed through his work.

In cross-examination, the applicant denied all the offences and disavowed any sexual interest in young teenagers. He stated that he would only undertake a treatment program in relation to an inappropriate sexual interest in children if it was required of him, and that he did not believe it was necessary for him. While he acknowledged that his own experience of child sexual abuse had had a lasting impact on him, he believed that the victims were “perfectly fine”. He went on to state that he believed the court process had been detrimental to the victims and that he and “almost everybody else who’s not being paid [to be in court]” were victims of the justice system.

The applicant stated that he believed his partner, TB, had suffered more than anyone, including the victims. When asked whether he took any responsibility for TB’s distress, he stated that “[s]he knew that I was in a relationship with other … people … there was… an arrangement where at time, I would have relationships with other people.” He went on to say that “[s]he was fully aware of what was going on” and that, “she wasn’t distressed, and neither was I until I was arrested”. He also stated that “the only reason [TB]’s been put through this is because they [the victims] lied… I’m not responsible for [TB]’s distress”. He went on to say that he was “absolutely disgusted” that the victims had put themselves through the court process. When asked by the sentencing judge whether the effect of his evidence was that TB was fully aware of what was going on and that his conduct was not the source of any of her distress, he confirmed that that was the case.

The applicant gave evidence that he did not take any responsibility for his fall from grace. When asked if he thought it was the media’s fault, he said, “[i]f you want me to sit here and blame people, that’s going to take a very long time”. He did not blame himself because he was a victim of the system. He stated that he, TB and the two victims were all victims of the “endless abuse that the system provides”.

In re-examination the applicant was asked whether he would be more careful in future:

The applicant concluded by stating that if anyone “pursued” him like the victim HS did, he would “ignore them” and “literally just run away”.

In relation to the offences of producing and possessing child abuse material, the applicant denied knowing of any of the material except one folder containing photos of HS.

The sentencing judge set out the facts taking her summary from the document provided on sentence by the Crown headed “Fact finding Proposed by the Crown Following Trial”. The only part of that document not expressly adopted by her Honour in her narrative was the evidence of the victims as to what they told the applicant about their respective ages.

Her Honour then noted that there was a live issue as to whether the applicant was to be sentenced on the basis of an honest but unreasonable belief or on the basis of actual knowledge of the age of the victims. It was noted that the applicant’s case at trial was that “in most instances” although he admitted to the sexual intercourse, he honestly and reasonably believed the victims were aged over 16. Her Honour noted that the Crown’s position on sentence was that he should be sentenced based on his actual knowledge that the victims were aged less than 16 years but observed that both cases had been left to the jury.

In relation to DA, her Honour was not satisfied that the applicant saw the age on DA’s Facebook profile or that their discussion about her being “underage” necessarily meant “under 16”. Her Honour observed “a concern on DA’s part about the age gap between them and a willingness to lie about it” including concealing the relationship from her mother. She noted that DA was able to travel to hotels with the applicant but had to be home “quite soon after school”.

In relation to HS, the sentencing judge noted that HS “had been leading a relatively independent life” before meeting the applicant including drinking alcohol and smoking cannabis. It was noted that HS was “attempting to pass herself as older than she truly was” when she first met the applicant. In relation to her evidence that she first told the applicant she was 15, the sentencing judge noted HS’ statement to police in which she had said 15 or 16 and considered that it was possible that HS first told the applicant she was 16. Her Honour noted that HS said that she told the applicant her true age just before her 14th birthday. It was also noted that HS was able to travel for overnight stays without parental supervision.

The sentencing judge concluded that the evidence established that the offender had a sexual interest in women aged around 16 or younger, that the victims looked much younger than the applicant but not “demonstrably under 16 years” and that the applicant did meet up with the victims when they were in school uniform but that in itself did not establish that they were under the age of 16. Her Honour found at [57]-[58] that:

In relation to objective seriousness, her Honour noted that the offending was not opportunistic and involved grooming, planning and extensive travel and occurred over many months when the applicant had time to reflect on his behaviour. The sentencing judge found that he was “determined to continue with the relationships so long as he wanted for his own sexual gratification”. It was noted that although the victims were not significantly younger than 16, they were at a particularly impressionable stage of life and were susceptible to the attention bestowed on them by the applicant.

In relation to count 3, her Honour observed at [68] that:

While her Honour accepted that the victims were not “abused, threatened, coerced or otherwise mistreated”, she did not accept the submission that they were not pressured in light of their evidence about the applicant’s grooming behaviours. Her Honour observed that this finding was particularly important in relation to count 3, for which the Crown Sentence Summary had noted an SNPP of 9 years. In relation to counts 17 to 22 (the child abuse material), the objective seriousness was found to be “just below the mid-range”.

In relation to mitigating factors, the sentencing judge noted that the applicant had not pleaded guilty and continued to deny his offending, with no explanation and no regret. Her Honour noted that the applicant continued to blame others, including the victims, for his offending. Her Honour observed that the applicant was intelligent but rejected the submission that he had any capacity to learn from his behaviour due to his inability or lack of desire to engage with the criminality involved in his behaviour. Her Honour observed that “[a]cceptance of what he has done and insight into why he did it are always the first steps to rehabilitation”.

The sentencing judge considered that the applicant had “almost no insight” into the detrimental effects of his conduct and had a “complete inability to take personal responsibility for his actions”. Her Honour was mindful of the applicant’s continued assertion of his innocence due to his pending appeal but considered that his evidence about TB was “particularly insightful” in this respect as it reflected his inability to take responsibility for his actions, even assuming that he did not know the actual ages of the victims.

The sentencing judge outlined the applicant’s evidence in the proceedings on sentence, including his evidence that he was not being unfaithful to TB and she was “accepting” of his relationships with the victims. He denied causing TB any distress and claimed she was “fully aware” of the relationships. The sentencing judge outlined TB’s evidence (as summarised both above and below in the consideration of ground 1). Her Honour concluded that there was “clear evidence, not only that the [applicant] was being unfaithful to TB, but also that she suffered apparent distress as a result”. Her Honour considered that the applicant’s evidence at his proceedings on sentence was “deliberately self-serving” and an “incompetent and ultimately unsuccessful attempt, to present himself in a better light”. It was noted that the applicant continued to blame others for his offending and considered himself a victim of the criminal justice system.

The sentencing judge noted that the denial of knowledge of certain child abuse material was “inherently unbelievable” and demonstrated a significant lack of insight. Her Honour observed that she had enquired as to whether he took any responsibility for the failure of his relationship with TB, if only to the extent that he was dishonest and deceptive. Her Honour noted that the applicant’s answer was consistent with his approach throughout the proceedings, which focussed on his own predicament and blamed others. The sentencing judge noted Mr Machlin’s findings and concluded that because no clear causes or contributing factors for the offences were identified in that report, the applicant’s prospects of rehabilitation were “extremely guarded”.

It was noted that the applicant had used his time in custody “reasonably well” and was employed as head sweeper. The sentencing judge observed that he had completed a Salvation Army program on topics including self-awareness and grief but when asked what he got out of the program, the applicant referred only to his personal losses in respect of his career, business, financial security and personal freedom. Her Honour noted that the applicant said he would only undertake a program for an inappropriate sexual interest in children if compelled to do so but would not do it voluntarily as he did not consider himself guilty of any offence.

Her Honour found that the applicant’s plan to deal with intimate relationships in future (to “literally just run away”) was unrealistic and that his evidence on that issue was “petulant and bizarre”. The sentencing judge regarded the applicant’s lack of drug and alcohol problems as irrelevant because the offences were committed over a long period of time when the applicant was not suffering any substance addictions. Similarly, in relation to the submission that the applicant had no mental health issues other than PTSD, the sentencing judge observed the following:

As to the submission that the applicant was an intelligent and capable person, the sentencing judge did not consider that this intelligence had led to the applicant showing any kind of acceptance or insight into the offending, despite having spent nearly four years in custody and having worked with the Salvation Army chaplain. The sentencing judge concluded that the applicant had “almost no prospects of rehabilitation”.

Her Honour noted that the applicant would be afforded some leniency in relation to count 1 because he had no relevant convictions.

As to his subjective case, the sentencing judge observed that the applicant’s evidence was “self-centred, narcissistic and full of self-pity”. Her Honour noted the applicant’s 30-page “exposé” on his personal losses, which she accepted and took into account. It was noted that although he reported experiencing sexual abuse as a child, he did not regard his own behaviour as sexual abuse. The sentencing judge outlined the applicant’s evidence about his “fall from grace” and subsequent losses. Her Honour took into account the applicant’s diagnosis of PTSD and found that his time in custody would be more onerous as a result.

In relation to deterrence, her Honour noted that given the applicant’s lack of prior convictions, there was some prospect that he would not re-offend but considered that there was a “very real risk” of the applicant re-offending due to his lack of insight. The sentencing judge found that there was a strong need for general deterrence and considered that the sentence would provide some specific deterrence.

Her Honour made a finding of special circumstances on the basis that it was the applicant’s first time in custody and because of his diagnosis of PTSD and his need for mental health treatment.

The sentencing judge then imposed the aggregate sentence set out above at [145].

Counsel for the applicant submitted that the indicative sentence on count 3 was disproportionate in comparison to the indicative sentences on the other counts. It was submitted that there were no aggravating features beyond the elements of the offence and that the offence had been assessed as falling below the mid-range of objective seriousness.

In relation to ground 3A it was submitted that the sentencing judge erred in attributing a SNPP of 9 years to count 3, the count of aggravated sexual intercourse without consent.

The Crown noted that it is the aggregate sentence, not the indicative sentence, that is amenable to appeal (JM v R [2014] NSWCCA 297 at [40(11)]) and addressed the complaint under this ground in its submissions on manifest excess.

As stated above, the Crown conceded error in her Honour sentencing the applicant on the basis that count 3 attracted a SNPP.

The table behind s 54D of the Sentencing Act now nominates an SNPP of 9 years imprisonment for an offence against s 66C(2) of the Crimes Act. But that SNPP was only introduced on 29 June 2015 by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW). Count 3 was committed between 1 November 2012 and 17 January 2013. Accordingly, no SNPP was applicable at the relevant time and the sentencing judge erred in relying upon it.

The indicative sentence imposed on count 3 was considerably higher than all of the other indicative sentences. Although it is to be accepted that the maximum penalty for count 3 was double that of the other sexual assaults (20 years imprisonment as compared with 10 years) it is also suggestive of her Honour using the SNPP as a guidepost.

At [74] of the remarks on sentence, her Honour found that the objective seriousness of the sexual assaults was “below the mid-range of seriousness of offending”, but “not significantly so” and at [75] that this was a “particularly important finding” so far as count 3 was concerned “having regard to the standard non parole period that applies”.

As Basten JA explained in Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Hamill and Lonergan JJ agreeing), since Kentwell, an applicant does not need to establish that an error has had an actual effect on the sentence imposed; only that it had the “capacity to influence the sentence”.

I am satisfied that the error had the capacity to influence the indicative sentence and the aggregate sentence. Accordingly, I am satisfied that the Crown concession was properly made, and this Court must intervene to re-sentence the applicant afresh.

It is to be noted that her Honour was led into this error as to the SNPP. The Crown Sentence Summary stated that an SNPP of 9 years applied and defence counsel at trial did not correct the error. As I recently observed in Haines v R [2021] NSWCCA 149 at [67], this is, regrettably, a surprisingly common occurrence. District Court judges dealing with large caseloads should be able to rely on counsel to assist in this regard.

Before turning to re-sentence the applicant I first will consider grounds 1 and 2 as they pertain to factual findings made by the judge. The correctness of those findings is relevant to the material upon which the applicant stands to be re-sentenced.

Counsel for the applicant submitted that the sentencing judge’s comments about TB were “only remotely relevant” to the sentence proceedings, and “erroneously contributed to the adverse findings” made about the applicant.

Reliance was placed on Geagea v R [2020] NSWCCA 350, in which the primary judge held that the objective seriousness of failing to stop and assist after a vehicle impact causing death was “made substantially worse” by the offender’s post-offence conduct in misleading police and concealing the offence. The Court of Criminal Appeal held that the primary judge erred in considering the post-offence conduct as a part of the offence and thereby elevating the objective seriousness. The Court did however observe that it would not have been erroneous to take the post-offence conduct into account in relation to matters such as the offender’s character, remorse, or attitude towards the offending: at [24]. The Court went on to conclude at [39] that the post-offence conduct did reflect poorly on the offender’s character.

The Crown submitted that the sentencing judge did not find that the applicant’s subterfuge in relation to TB made the offending “substantially worse”, and no such finding appeared anywhere in the remarks on sentence. The Crown observed that the only references to TB in the assessment of objective seriousness were when the sentencing judge noted that TB was away when the applicant took HS to the apartment and that the applicant lied to TB over many months to maintain the relationship with HS.

This ground was premised on a misconception. Although the alleged error is said to be the finding that “the offence [sic] was ‘made substantially worse’” by the applicant’s subterfuge in relation to his partner, there is no such finding anywhere in the remarks on sentence nor any reference to that phrase at all in the remarks on sentence. I shall proceed to determine this ground on the basis that the error contended for is that the sentencing judge had regard to the applicant’s subterfuge in relation to his partner, TB, in a manner which was not open to her Honour.

I have set out some of the evidence on this topic above at [168]-[169] and referred to the relevant parts of the remarks on sentence where this issue is touched upon above at [182]-[183]. The issue arose because of the inconsistency between the questions put to TB in cross-examination at trial as compared with the evidence given by the applicant on sentence on the same subject matter.

At the time of the commission of the offences, the applicant was in a de facto relationship with a woman referred to as “TB”. TB met the applicant when she was 15 years old and commenced a relationship with him shortly thereafter. She became aware of the applicant’s relationship with HS and was called as a witness for the Crown at the trial.

At the proceedings on sentence the applicant gave evidence that his behaviour towards DA and HS had not caused any distress to TB and that she was “fully aware of what was going on”. He also gave this evidence:

After the applicant’s evidence at his proceedings on sentence concluded, the sentencing judge indicated to the parties that she had reviewed the evidence from the trial over the luncheon adjournment, in particular TB’s evidence about whether she was aware of the applicant’s relationships with the victims. Her Honour provided counsel with transcript references of TB’s evidence at trial.

Her Honour noted that TB’s evidence was that on one occasion she saw a text message on the applicant’s phone from one of the victims saying “I miss the sound of your voice. I love you” and that she confronted the applicant about it because she was angry. The applicant told her that the message was from a 26-year-old colleague at the ABC and that he “went off at her [the colleague]” for sending that text message.

TB also gave evidence about receiving a Facebook message from someone she did not know. She recalled that the message informed her that, “my boyfriend Nathan had been sleeping with their 15‑year‑old daughter and that they thought I should know and sent me two photos”. She said that she argued with the applicant about that but there was no “proof” that the photos were taken in the applicant’s company. TB also gave evidence that after a police raid on their home in 2015 she saw Facebook messages from the victim HS stating "[i]f you don't come out and see me, I'm going to tell [TB].” She said that she again confronted the applicant and “that's when he admitted that he'd cheated on me with her.” Her Honour then noted that TB gave the following evidence in cross-examination on this issue:

Her Honour observed that TB’s evidence appeared to indicate both that the applicant was being unfaithful and that this caused TB distress. She then indicated to the parties that she proposed to reject the applicant’s evidence on these issues.

As for the references to TB in the remarks on sentence, the first one was after her Honour’s finding that the applicant had “almost no insight” into the potential effect of his conduct on the victims. Her Honour then referred to his evidence that he thought the person who had suffered more than anyone was TB and stated:

Her Honour then went on identify the differences between the applicant’s evidence at his proceedings on sentence with what was put on his behalf to TB at trial. Her Honour then concluded at [113]:

Her Honour went on to observe at [117]-[118] that:

Her Honour took into account the applicant’s ongoing attitude towards TB as indicative of his capacity, or lack thereof, to develop insight into his offending. I am satisfied that it was open to her Honour to do so. Similarly, in relation to the question of deterrence, her Honour referred to the applicant’s lack of understanding or remorse, even for his former partner. It is well established that the question of insight is a relevant factor on sentence, particularly to the question of prospects of rehabilitation, as I will discuss further under ground 2 below.

This ground is not made out.

Counsel for the applicant submitted that her Honour’s finding that the applicant had “almost no prospects of rehabilitation” (ROS at [131]) was contrary to the preponderance of the evidence and that none of the matters referred to by the sentencing judge could have informed such a finding. Counsel for the applicant contended that the applicant had been penalised for defending the charges and that her Honour made an “almost psychiatric diagnosis” on the basis that the applicant maintained his innocence. It was submitted that there was “no evidence” for her Honour’s observations regarding the applicant’s narcissistic personality traits.

It was submitted that there were many subjective matters which suggested positive prospects of rehabilitation including: that the applicant had no relevant criminal history; that he had been consistently employed, including while in custody; that he gave evidence that he intended to be extremely cautious in choosing a partner in future; that he had no drug or alcohol issues; that he had no mental health issues; and that the sentencing judge concluded that he was to be sentenced on the basis that he had an honest but not reasonable belief as to the victims’ ages.

Counsel for the applicant noted the sentencing judge’s observations of the applicant’s narcissistic personality traits (extracted above at [186]) and submitted that there was no evidence to support this view and it was contrary to the evidence about the applicant’s intelligence and accomplishments.

It was further submitted that the applicant’s right to defend the charges should not have precluded a finding of positive prospects of rehabilitation and that her Honour’s finding was contrary to the preponderance of the evidence.

The Crown submitted that an offender’s prospects of rehabilitation are a question of fact to be determined by the sentencing judge. It requires a weighing of the evidence before the sentencing judge. It was submitted that to succeed on this ground of appeal, the applicant would have to establish that the finding was not open to the sentencing judge.

The Crown noted the list of factors relied upon by the applicant in support of the contention that the finding was erroneous and addressed them individually. I have adopted some of those submissions in my consideration below.

Her Honour spent some time addressing the submissions made on the applicant’s behalf as to his good prospects of rehabilitation but was unable to accept them. As for the submission that his prospects of rehabilitation were good because he had no drug and alcohol issues, her Honour stated at [127]:

That was a finding well open to her Honour. Although the evidence at trial was that the applicant would buy alcohol for HS, there was no evidence at trial that he ever consumed alcohol with her. Although drugs or alcohol may be a risk factor for offending generally, the question her Honour was considering was the applicant’s prospects of rehabilitation in relation to sexual offending against children, in respect of which alcohol or drugs never played any part.

Her Honour considered a further submission as to prospects of rehabilitation as follows at [129]:

Again, this finding was open to her Honour. The fact that the applicant is intelligent and capable, as shown by his professional success, is not a factor that necessarily supported good prospects of rehabilitation in light of the applicant’s risk factors. On the contrary, as her Honour found, he was able to use his professional success as part of the grooming behaviour. Her Honour was entitled to find that the applicant’s emotional intelligence was low given his somewhat bizarre evidence that he would not save a woman in a car crash in case she made a false complaint about him. As for the applicant’s employment history, it plainly did not prevent him from engaging in the offences and, as observed by the sentencing judge at [144] he exploited his success to impress the victims.

Finally, at [130]-[131] her Honour concluded:

The nub of the complaint made under this ground is whether it was open to her Honour to find that the applicant had “almost no prospects of rehabilitation”. As the Crown submitted, an offender’s prospects of rehabilitation is a question of fact to be determined by the sentencing judge: Stoeski v R [2014] NSWCCA 161 at [38].

The applicant relied on a number of positive factors in support of the contention that that her Honour ought to have made a different finding. The difficulty is that her Honour had regard to all these factors. It was not and could not be contended that any relevant factors were overlooked by her Honour.

I have already addressed the submissions about the applicant’s lack of drug or alcohol issues, his evidence that he intended to be extremely cautious in choosing a partner in future and his consistent employment. In addition, reliance was placed on the fact that he had no relevant criminal history. Her Honour noted this fact and had regard to it in relation to the count 1. The applicant’s lack of prior convictions has less weight where the offending occurred over several years, from 2011 to 2015, and involved two separate victims and multiple child pornography offences. In any event, a lack of criminal history does not necessarily mean that an applicant has good prospects of rehabilitation: Ryan v R; Coulter v R [2013] NSWCCA 175 at [76].

It is to be accepted that the applicant was employed in custody and doing well generally. Her Honour had regard to these factors (ROS at [120]-[121]). But progress in custody does not necessarily equate to rehabilitation upon release. Furthermore, the applicant’s evidence was that he was reluctant to undertake courses to address his offending behaviour, which was considered relevant in Martin v R [2013] NSWCCA 253 at [29]. Her Honour noted that the applicant’s reluctance to voluntarily participate in supervision or courses materially weakened any suggestion that his productivity in custody indicated positive prospects of rehabilitation.

As for the applicant’s evidence that he would be more cautious in future, that evidence reflected poorly on his prospects of rehabilitation given its somewhat bizarre nature. In any event, his evidence was that he would exercise caution with girls aged around 16 or younger in case they “throw some charges at [him]”. Further, his evidence that he would never have a relationship again with a woman of any age was, as the sentencing judge observed, unrealistic: ROS at [125].

All of these matters were taken into account by her Honour in different ways but the relevant finding to be made by her Honour was as to the applicant’s prospects of rehabilitation in relation to sexual offences on post-pubescent children. Not all of the factors relied upon by the applicant under this ground assisted him in that particular regard. It was open to her Honour to make the finding she did based on the applicant’s denial of any sexual interest in post-pubescent children, his persistent blaming of the victims for his offending, the fact that he maintained relationships with the victims over a period of about four years, his possession of child abuse material and his inability to acknowledge that his behaviour was wrong.

A further complaint was made under this ground regarding the sentencing judge’s observations of the applicant’s potential narcissistic personality traits. The sentencing judge was explicitly mindful that there was no expert evidence to support such a diagnosis (ROS at [128]). It was open to her Honour to describe the applicant as narcissistic based on his evidence but not to diagnose him as having an actual narcistic personality disorder. Her Honour stopped short of doing so.

Finally, although her Honour placed significant weight on the applicant’s lack of insight she did not, as was submitted on the applicant’s behalf, punish the applicant for defending these matters. Her Honour was entitled to have regard to the applicant’s refusal to take responsibility for his actions when considering his prospects of rehabilitation. I am satisfied, based on the material before her Honour, that it was open to her to make an adverse finding as to the applicant’s prospects of rehabilitation. A similar finding was recently made in Hillman v R [2021] NSWCCA 43 at [39].

This ground has not been made out.

Given that error has been established, it is not necessary to consider whether the aggregate sentence imposed was unreasonable. Error having been established in the sentencing process, the Court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act by an independent exercise of the sentencing discretion: Kentwell at [43]. The parties’ submissions on ground 4 are nonetheless relevant to the question of re-sentence and I have considered them below from [298].

In re-sentencing the applicant the Crown submitted that I would adopt all of the findings made by the sentencing judge with one exception: it was submitted that this Court would be satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 years and would sentence him on that basis. It was submitted that that it would be open to this Court to accept the evidence of the victims and accordingly find that the applicant did not honestly believe the victims to be 16 years of age or older.

Counsel for the applicant, on the other hand, submitted that the sentencing judge was best placed to make this factual finding having observed all the witnesses during the trial. It was submitted that this placed her Honour in a better position to make the relevant assessment as she was able to judge the presentation of witnesses including the victims and their apparent age, noting however that the trial occurred some five years after the alleged offences.

It was not submitted on behalf of the applicant that this Court could not revisit the finding as to his relevant knowledge for the purpose of re-sentencing; only that in the exercise of this Court’s re-sentencing discretion it would not.

Before turning to consider the evidence relevant to such a finding, it is pertinent to first address the relevant authorities on this question.

In Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 (“Carroll”), an appeal decided two years before Kentwell, the High Court considered an appeal brought by an offender whose sentence was increased in this Court on a Crown appeal. One of the particulars of error relied upon by the Crown in this Court in support of its contention of manifest inadequacy was that the sentencing judge "gave too much weight to the [present appellant's] subjective circumstances and failed to appreciate the objective seriousness of the offence" (at [9]). In upholding the Crown appeal this Court made a different finding of objective seriousness but in doing so ignored some of the factual findings made by the sentencing judge. In that context the Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed the following at [24]:

Thus it was held that in the absence of any challenge to the primary judge's findings of fact, it was not open to an intermediate appellate court to discard factual findings made by the primary judge.

In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”), the High Court considered the question of whether an offender should be permitted to put a different case on re-sentence to that put at first instance based on material that was available at the time of the initial sentence but not put before the sentencing court. In that context the Court, (French CJ, Kiefel, Bell, Gageler and Gordon JJ) observed the following at [14]:

In DL v The Queen (2018) 265 CLR 215; [2018] HCA 32, the High Court (Bell, Keane, Nettle, Gordon and Edelman JJ) considered whether this Court erred when re-sentencing an offender on the basis of “Muldrock” error (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39). The Court observed the following at [9]:

The decisions in Betts and Carroll were footnoted as authority for the last two propositions in DL at [9]. In DL it was agreed that it was open to the Court of Criminal Appeal to make a different finding as to objective seriousness. The error identified by the High Court was not that the Court of Criminal Appeal made a finding of greater objective seriousness than the primary judge, but that the parties were not afforded the opportunity to be heard on that issue.

More recently, in LS v R [2020] NSWCCA 27 Harrison J (with whom Hoeben CJ at CL and Button J agreed) observed the following at [43]:

Having regard to the principles derived from these decisions it seems to me that when exercising the sentencing discretion afresh, this Court is permitted, “in exceptional cases,” to make a different finding to that made by the primary judge so long as procedural fairness is extended to the parties. Despite this, a party (whether it be the offender or the Crown) is not permitted to run a different case unless it forms part of a ground of appeal relying upon a miscarriage in the sentencing process.

There is nothing in these decisions to suggest that this Court would be precluded from re-visiting the finding as to the state of the applicant’s knowledge. On the contrary, as the High Court observed in Betts and DL, an intermediate appellate court exercising its sentencing discretion afresh is not confined to, inter alia, the sentencing judge’s unchallenged factual findings in “exceptional cases”. Given that there is no express description in those decisions as to what circumstances might give rise to an exceptional case, the question arises as to what, if any, test this Court is to apply before it would do so.

The Crown submitted that the relevant test is whether it would be open to this Court to re-sentence on the different finding. Necessarily such a finding would have to be beyond reasonable doubt as the finding sought is one more serious than that found by the primary judge: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. I am satisfied that this is the appropriate test.

The experience of this Court is that it is rare for the Crown to contend that an offender should be re-sentenced on a different basis. I have been unable to find any other decision in which it has occurred on an appeal brought by an offender. In that regard this is such an exceptional case.

Nor is there any provision in the Criminal Appeal Act enabling the Crown to file a notice of contention in relation to an appeal brought by an offender under s 5(1). Thus, it cannot be the case that the Crown is required to show error before this Court would make a different finding, whether that be error based on House v The King (1936) 55 CLR 499; [1936] HCA 40 or Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.

For these reasons, I am satisfied that this Court is permitted to revisit the finding made by the sentencing judge as to the applicant’s knowledge at the time of the commission of the offences given that the applicant was provided the opportunity to address this question. The relevant test is whether this Court is satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 at the time of the offending. In re-visiting this question, this Court should defer to the advantage enjoyed by the trial judge in seeing and hearing the relevant witnesses.

As stated above, the Crown case at trial was run on an alternate basis: its primary case was that the applicant knew that the two victims were not aged 16 years or over. This was based on the evidence of the victims as to what they told him about their respective ages. The Crown also put an alternative case, namely, that the applicant honestly but mistakenly believed the two victims to be aged 16 years or over and that such a belief was not reasonable in the circumstances. Her Honour was satisfied that the jury’s verdict was consistent with either of the two cases.

Although Brereton JA has recounted the evidence in some detail above for the purpose of consideration of the ground that the verdicts were unreasonable, it is necessary for me to do so again here in order to assess the Crown contention that the applicant should be sentenced on a different factual basis to that found by the sentencing judge.

The evidence as to the applicant’s knowledge of DA’s age comprised the following:

The evidence as to the applicant’s knowledge of HS’ age comprised the following:

If the sentencing judge accepted the evidence of the two victims that they each told the applicant how old they were, then it follows that her Honour would have to have been satisfied beyond reasonable doubt that the applicant knew that both victims were under 16 years at the time of the relevant offences. To put this another way, the only way in which the sentencing judge could have had a reasonable doubt on this question would be if she did not accept the evidence of the two victims on this topic. Despite this, at no stage in the remarks on sentence did her Honour make any reference to the demeanour or presentation of the witnesses when making the relevant findings nor explain why she did not accept that aspect of their evidence as to telling the applicant their true age(s).

In addition to the evidence of the victims referred to above, there was other evidence as to the applicant’s knowledge including the evidence of TB referred to above that she received a Facebook message about the applicant sleeping with a 15-year-old (this was in fact sent by HS). There was also tendency evidence, including from the child abuse material, indicating an interest in children under 16.

Although her Honour set out in some detail why she had a “small but reasonable” doubt about this question, she did not address the credibility of the victims directly. Instead she provided five reasons for having a doubt about whether the applicant knew that each of DA and HS was under 16 years of age.

First, her Honour noted that there was no clear evidence that the applicant saw or took note of her age on her Facebook profile. Although that was a finding open to her Honour it does detract from DA’s evidence that she told the applicant she was 14 years old.

Secondly, her Honour concluded that the terms of the conversation in which DA and the applicant discussed that she was “underage” were unclear including as what was “underage” meant in that context. But DA had given clear evidence that she told the applicant on Facebook (before meeting in person) that she was 14 years old and in year 8 at school, including in the context of the conversation about her being “underage”. DA’s evidence was as follows:

In this context, it seems to me that “underage” could only have referred to being under the age of consent. The applicant denied that conversation and said that DA told him she was 16 when they first met in person. But there was no ambiguity in DA’s evidence that the applicant knew her true age and that they had discussed making their relationship public after she turned 16. DA said that they had the following conversation before the first time she went to the hotel and had sexual intercourse with the applicant:

Thirdly, her Honour noted that although DA gave evidence to the effect that they would not obviously meet up because she was “underage” they did at times meet up publicly and did not have sexual intercourse until they had met up on about the fifth occasion. But DA’s evidence was that they only met up in a public park and did not go to places such as shopping centres, cafes or restaurants (where they would be more likely to be seen by other people). It is difficult to see how the fact that they would meet in a park, without more, could undermine DA’s evidence that they did not “obviously” meet up because she was underage.

Fourthly, her Honour noted that there was evidence that DA deceived her mother about the relationship because she was worried that her mother would not approve given that the offender was older, showing a concern on DA’s part about the age gap between them and a willingness to lie about it. Although so much can be accepted, this fact did not compel a conclusion that DA lied on oath when she gave evidence that she told the applicant her true age.

Finally, her Honour noted that DA was free enough to travel to hotels with the applicant but needed to be home quite soon after school. The evidence was that the hotel they went to was a 20 minute drive from DA’s house, which was the furthest distance they could go while returning to her home by 4pm (when DA was required to be home). Further, DA’s evidence was that whenever they went to the hotel, DA stayed in the car while the applicant made the hotel booking. Again, it is difficult to see how this evidence could detract from the reliability of DA’s evidence as to having told the applicant her true age.

Although the matters identified by her Honour were relevant to the fact-finding process, I am not satisfied that any of them explain why her Honour did not accept DA’s evidence that she told the applicant her true age.

Similarly, in relation to HS, her Honour identified five factors which gave rise to her having a reasonable doubt as to whether the applicant knew that she was under the age of 16.

The first factor was that HS was leading a relatively independent life when she met the applicant. She had already been drinking alcohol and smoking cannabis regularly quite independently of the applicant. This was a finding open to her Honour, but it does not explain why HS’ evidence as to what she told the applicant about her age ought to be rejected.

Secondly, her Honour found it “quite likely that she did not reveal her true age on her Facebook profile” as at that time HS was attempting to pass herself as older than she actually was and she lied to her mother about that. This was also a finding open to her Honour. HS could not remember whether her age was on her profile. This finding does not involve any rejection of HS’ evidence and does not explain why her evidence about what she told the applicant ought to be rejected.

Thirdly, her Honour noted that HS and the applicant first met outside a Windsor hotel during the school holidays and, on her evidence, HS told the applicant that she was 15 years old. She agreed in her evidence that this was a deliberate lie. In her police statement, however, made at an earlier point in time HS said that she told the offender she was 15 or 16. Given that she was motivated to lie about her age in order to have a relationship with the offender her Honour considered it possible that she said to him that she was 16.

The offence under s 66C(2) (count 3) involved sexual intercourse with a child under the age of 14 years (and above the age of 10). The jury’s verdict on count 3 indicated that they were satisfied beyond reasonable doubt that the applicant knew or should reasonably have known at the time of count 3 that HS was aged under 14. It was shortly after count 3 (but before counts 4-16) that HS disclosed her true age shortly before her 14th birthday. Her evidence was that the applicant was “angry” that she had lied to him. No finding was made by her Honour as to whether that conversation occurred or whether that aspect of HS’ evidence should be accepted beyond reasonable doubt. Given that HS did not tell the applicant her true age until after count 3, I am satisfied that the Crown case that he knew she was under 14 is not as strong as for the other counts. I shall return to that question below.

Fourthly, her Honour noted that HS said that she told the offender her real age just before her fourteenth birthday in January 2013. Her Honour made no comment as to whether she accepted or rejected this evidence.

Finally, her Honour noted that HS travelled for overnight stays and interstate visits with the applicant without parental supervision. Again, this was undisputed evidence but does not explain why HS’ evidence as to what she told the applicant about her age ought to be rejected.

In addition to identifying these five factors in relation to each of HS and DA, her Honour also referred to three other parts of the evidence relevant to the allegations made by both HS and DA: that the applicant had a sexual interest in young women at or around the age of 16 or younger; that the photographs of DA and HS depict them looking much younger than the applicant but not “demonstrably under 16 years of age” (although her Honour accepted it was difficult to tell from looks alone); and that the offender from time to time met up with DA and HS whilst they were in school uniform, noting that simply being at school does not itself establish that the victims were more likely to be under the age of 16.

None of these factors can take away from the credibility of the victims and their clear evidence that they told the applicant their true ages. Nor do they answer the fact that the jury obviously rejected much of the applicant’s evidence.

Given the differing bases upon which the applicant disputed each count, I am satisfied that the jury verdicts reflect a rejection of his evidence in a number of significant respects. The applicant had disputed the acts subject of counts 3, 5-9 and 11-13, and placed counts 1-2, 4 and 10 outside the timeframes specified on the indictment. The verdicts show that the jury clearly rejected his evidence and accepted the victims’ evidence. That this must be so can be seen by examining the applicant’s evidence in relation to each count and comparing it with each verdict.

The applicant’s evidence was that he first met DA in the summer “between 2012 and 2013”. It was put to him in cross-examination that they in fact met at the start of 2012 and he denied that. Counts 1 and 2 were charged as occurring between 26 May 2011 and 25 May 2012. The applicant’s convictions on these counts necessarily entailed a rejection of his evidence as to when he met DA.

As to the first occasion on which he had sexual intercourse with DA at the Country Comfort Motel, it was put to him that that occurred in early 2012. The Crown showed him bookings made at the motel under his name between April 2012 and October 2016 and suggested that he took DA to the motel in April or June 2012. The applicant denied this and stated that he first had sexual intercourse with DA at the motel in the “[m]iddle of 2013 roughly”. Counts 1 and 2 occurred between 26 May 2011 and 25 May 2012. As DA was born in May 1997, she would have turned 16 in May 2013. Had the jury accepted the applicant’s evidence as to the timing of these counts, that would have led to acquittals on those counts.

As for HS, the applicant’s evidence was that he met her in February 2013. While he admitted to sexual intercourse with HS, he said that this occurred for the first time in “late November 2013”. He denied ever having sexual intercourse with HS before that time. All of the acts subject of counts 3 to 13 (in relation to HS) were alleged to have taken place before mid-November 2013. Count 3 occurred between 1 November 2012 and 17 January 2013, count 4 between 18 January and 1 May 2013, counts 5-12 between 18 January and 13 November 2013, and count 13 between 12 and 15 November 2013. The applicant’s convictions on all these counts entailed a complete rejection of his evidence that he never had sexual intercourse with HS before “late November 2013”.

The applicant further denied ever having sexual intercourse with HS in his vehicle (the Hummer) or any other vehicle; or having sexual intercourse with HS next to the river at Windsor. As summarised above, the act the subject of count 3 was penile-vaginal intercourse that took place in the back seat of the applicant’s Hummer next to the river at Windsor. The act the subject of count 11 also occurred in a car, in a carpark near a hotel in the Blue Mountains. The applicant also denied specifically having sexual intercourse with HS in his vehicle on a trip to the Blue Mountains.

The circumstance of aggravation in count 3 was that the applicant took advantage of HS being under the influence of alcohol: Crimes Act, s 66C(5)(g). HS’ evidence was that she had been drinking UDLs that the applicant purchased for her and that she was “pretty drunk”. The applicant denied ever purchasing alcohol for HS or taking advantage of her intoxication.

The verdict of guilty on count 3 required the jury to be satisfied that HS was under the age of 14. HS was born in January 1999 and turned 14 in January 2013. On the applicant’s case, he did not meet her until February 2013. Significantly, the applicant’s conviction on count 3 (sexual intercourse with a person aged between 10 and 14 in circumstances of aggravation) entailed a rejection of his evidence as to: when they met; when they first had sexual intercourse; whether he ever purchased alcohol for HS; and that they did not have sexual intercourse in his Hummer or by the river at Windsor.

The applicant was shown a photograph of HS which she alleged was taken by the applicant on a trip to the Gold Coast in February 2013. The time stamp on the photograph indicated that it was taken on 10 February 2013. The applicant admitted taking the photograph but denied ever having sexual intercourse with HS prior to November 2013.

The applicant denied that HS disclosed her true age the night before her 14th birthday. He said that he knew she was over 16 because she talked about driving on her learner’s permit and “looked” over 16 “physically” and dressed like she was over 16.

Counts 5-9 were acts that occurred in the applicant’s apartment in Mascot between 18 January and 13 November 2013 while TB was away. While the applicant admitted taking HS to his apartment in Mascot, he said that he took HS to his apartment in 2014 rather than 2013. He denied that they had sexual intercourse on that occasion, or on any other occasion at his apartment in Mascot. He said that she visited his apartment about six months after their sexual relationship commenced (thus in approximately May 2014, on the applicant’s evidence). He denied that HS stayed overnight at his apartment. The jury rejected this evidence and convicted the applicant on all of these counts as well.

Counts 11 and 12 occurred on a trip to the Blue Mountains in 2013. Count 11 involved sexual intercourse in a carpark in the applicant’s Hummer and count 12 took place later that night at a hotel that the applicant booked. The applicant admitted to taking HS to the Blue Mountains but denied staying overnight in a hotel and denied having sexual intercourse with her in a carpark in his Hummer. When shown a booking for a hotel made on 15 March 2013 on his personal credit card, he stated that this was for work. The jury clearly rejected this evidence and convicted the applicant.

Count 13 involved sexual intercourse with HS in a hotel near Wet’n’Wild in Prospect. The applicant admitted visiting that hotel with HS and her friend but denied having sexual intercourse with HS at all during that trip or at that hotel. Again, he was convicted on this count.

To summarise the effect of the applicant’s evidence, his case was as follows:

The applicant’s convictions on counts 1-13 all entailed a rejection of his evidence.

Further, although not relevant to the defence of honest and reasonable mistake of fact, the applicant also denied knowledge of the child abuse material found on his laptop, subject of counts 19-22. Her Honour found his evidence on this issue to be “ludicrous” and “inherently unbelievable” (ROS at [116]).

It is significant that the only counts on which the applicant relied solely on the defence of honest and reasonable mistake of fact were counts 14, 15 and 16 (and, in relation to the child abuse material, count 17).

Having regard to all of these matters I am satisfied beyond reasonable doubt in respect of counts 1-2 and 4-16 that both victims told the applicant their respective ages and he thus knew how old they were at the time of the commission of the offences. In arriving at that conclusion, I have deferred to the advantage enjoyed by the trial judge in seeing and hearing the relevant witnesses, in particular the two victims and the applicant. It is to be accepted that the credibility of these three witnesses was a significant factor at trial. It is also to be accepted, as Brereton JA has noted at that it was open to the jury to accept some and reject other parts of the victims’ testimony. Despite this, and for the reasons I have set out above, I am satisfied beyond reasonable doubt that the applicant knew that the victims were under the age of 16 years. He stands to be re-sentenced on that basis.

I have come to a different conclusion for count 3. HS’ evidence was that she told the applicant she was 15 years old prior to that count and it was only after count 3 that she told him the truth: she was only 13 years old. The jury’s verdict on that count was consistent with them being satisfied beyond reasonable doubt that the applicant knew or should reasonably have known that HS was aged under 14 at the time of count 3. Unlike counts 1-2 and 4-16, however, there is no clear evidence indicating that the applicant had actual knowledge of HS’ age at the time of count 3. Accordingly, in relation to count 3 only I would give the applicant the benefit of the doubt and re-sentence him on the same basis as the trial judge did.

Given my conclusion that in relation to all counts except count 3 the applicant is to be sentenced on the basis that he knew the victims were aged under 16 years, it follows that my assessment of the objective seriousness of the offences is higher than that found by the sentencing judge. The sentencing judge found that the offending in relation to counts 1 to 16 was “below the mid-range” of objective seriousness, although not significantly so. Given that no SNPPs applied at the time of the offending, there is no requirement to make any finding of where the objective seriousness lies on a continuum of offending. Despite this, in order to reflect the fact that I have assessed the objective seriousness to be higher than that of the sentencing judge, I indicate that I would assess the objective seriousness of each offence to be well along the range of offences that could be classed as mid-range for offences of this nature.

I note that the Crown did not submit that the applicant should be sentenced on a different factual basis to that found by Judge Wass in relation to counts 17-22. Accordingly, he is to be sentenced on the same finding of objective seriousness as found by her Honour.

No additional evidence was tendered on re-sentence. I have thus made the relevant findings based on the material before the sentencing judge.

I have already summarised the applicant’s subjective case. The favourable factors included that he had no prior convictions and a positive employment history. His fall from grace was significant and there can be no doubt that he has suffered emotionally and financially following his apprehension. The fact that the custodial environment has triggered latent trauma symptoms means that the custodial environment is more onerous for him.

The applicant submitted that the offences involved consensual relationships, without violence or force and there was no position of authority or trust. Counsel for the applicant relied on the applicant’s “favourable” subjective case and lack of criminal history. It was further contended that this Court would make more favourable findings about the applicant’s subjective case and prospects of rehabilitation than the sentencing judge did.

Counsel for the applicant relied on his evidence in the proceedings on sentence (extracted above at [163]-[172]) in which he denied a sexual interest in girls aged 16 or under and stated that he would avoid them “like the plague” in case they “throw charges at [him]”. It was submitted that this was merely an inarticulate way of stating that he would not put himself in a similar situation in future.

I have already found under ground 2 that no error is disclosed in her Honour’s finding that the applicant has “almost no prospects” of rehabilitation. Despite this I would make a slightly more favourable finding. It seems to me that his opportunity to offend will be reduced once he is released given that he will not be able to use his successful career to groom potential victims and it will be more difficult for him to lie about his age as he will be significantly older by the time he is released.

The applicant’s risk factors for offending remain unclear. They have never been identified or addressed. The applicant has shown no remorse or insight into his offending. I would find special circumstances, as her Honour did, on the basis of the applicant’s PTSD.

The applicant is to be re-sentenced for 22 serious offences: 16 offences of sexual intercourse with a child and 6 offences involving the production or possession of child abuse material. The offences were not opportunistic; they involved planning, forethought and grooming behaviour. The criminal behaviour spanned several years and two separate victims over distinct periods of time.

In relation to count 3, the legislature intended to provide for harsher penalties where the victim is aged under 14 and where an offender takes advantage of the child’s intoxication. Count 3 took place in the context of a pattern of grooming behaviour, including purchasing alcohol for the victim, driving her around in his vehicle and having sex with her in the vehicle when she was “pretty drunk”. Count 3 would necessarily carry a harsher penalty in the circumstances. Despite this, I would nominate a lower indicative sentence for count 3 than her Honour did. There is no applicable SNPP and the applicant is to be re-sentenced on the basis that he had an honest but unreasonable belief that HS was 14 years of age or older.

Despite the fact that I would not re-sentence the applicant on count 3 on the basis that he knew that HS was under the age of 14, the need for general deterrence remains important. The Crown relied upon the following passage in Glade v R [2020] SASCFC 83 in this respect at [31]:

I have considered all of these matters. I have arrived at an indicative sentence for count 3 which is lower than that indicated by her Honour and I have arrived at higher indicative sentences on all of the remaining charges excluding the child abuse material charges. In exercising my sentencing discretion afresh, the applicant stands to be sentenced on all counts except count 3 on the basis that he knew that the victims were under the age of 16 rather than having an honest but unreasonable belief in that regard.

By a process of instinctive syntheses, I have arrived at an aggregate sentence slightly higher than that imposed by the sentencing judge. As I observed in RO v R [2019] NSWCCA 183 at [123], I do not consider it appropriate to set out this aggregate sentence (and proposed indicative sentences) in circumstances where I do not propose to impose it.

I would dismiss the appeal against sentence on the basis that no other (lesser) sentence is warranted at law.

CAVANAGH J: I have had the considerable advantage of reviewing the judgments of Brereton JA and N Adams J. In terms of the conviction appeal, I agree with the orders proposed by Brereton JA. The appeal should be dismissed. In my view, there is no merit in Ground 1. No miscarriage of justice was occasioned by the unresponsive answer referring to the applicant being in gaol.

In terms of Ground 2, I have carried my own independent assessment of all of the evidence. In my view it was well open to the jury to be satisfied as to the applicant’s guilt beyond a reasonable doubt. As such, in my view, Ground 2 also fails.

In terms of the sentence appeal, I agree with the orders proposed by N Adams J and with her Honour’s reasons and thus would also dismiss the sentence appeal.