Teshabaev v R

1. [1]

   ADAMSON JA: Kodirjon Teshabaev (the applicant) seeks leave to appeal against his convictions for 15 child sex offences (being all the charges on the indictment) following a trial by jury in the District Court, over which Townsden DCJ (the trial judge) presided. The applicant also seeks leave to appeal against the aggregate sentence of 24 years imprisonment commencing on 11 December 2020 and expiring on 10 December 2044 with a non-parole period of 18 years.

2. [2]

   The offences and the sentences indicated, as well as the maximum penalty and, if applicable, the Standard Non-Parole Period (SNPP), measured in years of imprisonment, for each count are set out in the table below. References to sections, and any references to legislation in these reasons, unless otherwise stated, are reference to the Crimes Act 1900 (NSW).

3. [3]

   The applicant requires leave to appeal as the grounds do not involve questions of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He also requires an extension of time as the appeal was filed one day late. An extension of time is not opposed and ought be granted.

4. [4]

   If leave to appeal against conviction is granted, the applicant appeals on the following ground:

5. [5]

   If leave to appeal against sentence is granted, the applicant appeals on the following two grounds:

6. [6]

   The applicant does not allege that the verdicts were unreasonable or inconsistent. Accordingly, it is not necessary to do more than summarise the complainant’s evidence in support of each count (which the verdicts indicated that the jury accepted) and in support of other conduct (uncharged conduct) which was relied on for a tendency purpose.

The evidence

1. [7]

   The applicant is the complainant’s step-father’s cousin. At the time of the offences, he was aged between 24 and 26 and the complainant was aged between 7 and 9 years. From 7 March 2018, the applicant lived with the complainant’s family (her mother, her step-father, the complainant and her siblings). He slept in one bedroom of the two-bedroom apartment in Bankstown and the complainant and her family slept in the other. There were several occasions when the applicant and the complainant were the only persons home in the unit. It was at these times that the alleged offending and the uncharged conduct took place.

2. [8]

   When the complainant was in Year 2 at school, the applicant started to show her “rude” videos in his bedroom. He told her that he was going to show her “how babies are born”. When she saw the video, she told him that she thought it was “disgusting”. He responded that it was not disgusting and “this is natural, to me”. He stopped showing the videos to the complainant when her mother came in. The applicant went and had a shower.

3. [9]

   When the complainant was 8 or 9 years old, the applicant showed her “[t]he same videos” (as in count 1) (count 2). He put her on his lap, with a blanket covering them and touched her with his fingers on the inside of her “rude part” (her vagina) (count 3) and inside her “butt hole” (her anus) (count 4). When her mother arrived home, the applicant stopped, told the complainant that it was “enough for today” and had a shower. The complainant felt scared.

4. [10]

   In about March 2019, about six months before the complainant’s grandfather moved in with the family in the Bankstown unit, the applicant and the complainant were home alone together. The complainant’s mother was shopping and her father was at work. The applicant showed the complainant another “rude video” and assured her that what was being depicted in the video was not “disgusting” (her reaction) but rather “natural”. He said to her, “come on, you want to do it”, to which she responded, “[d]o whatever you can but you can’t make me want to do it”. When the complainant said that she would tell her father, the applicant threatened that, if she did, she would “get into more trouble”.

5. [11]

   The applicant pulled the complainant onto his lap and put a blanket over them. He pulled down her pants and tights and inserted his fingers into her vagina (“the rude one”, “at the front”, “the water one”) (count 6) and into her anus (“inside my butt hole”) (count 7). The complainant’s mother telephoned the applicant to say that she was returning home, which resulted in the cessation of the applicant’s conduct.

6. [12]

   One afternoon during summer, the complainant was at home alone with the applicant. They were playing with the complainant’s pet cat until the cat fell asleep. The applicant placed the complainant face-down on his bed and pulled her underpants and pants down. He inserted three fingers into her anus (count 9), then inserted his penis into her anus (count 10). He also licked her vagina with his tongue (count 8). The complainant felt “a bit sick” and “scared”. The conduct stopped when the complainant’s step-father rang and asked the applicant to buy ear buds at JB Hi-Fi. The applicant took the complainant with him to make the purchase.

7. [13]

   On another occasion when the complainant was at home with the applicant, she was lying on a mattress. The applicant put his penis (“his rude part”) into her vagina, which hurt. The complainant bit the applicant on the leg because it was hurting, she was scared and she could not otherwise make him stop. The applicant then hit either her hand or her face.

8. [14]

   Once again, the complainant was at home with the applicant (as her mother had taken her grandmother to the doctor). The complainant was in the living room and the applicant was in his bedroom, playing a game and “playing with his rude part”. When he called her into his room, she was scared. He put her on his lap, pulled her tights and underpants down to her knees, removed her jacket and pulled up her singlet. He inserted three fingers into her vagina (count 12) and into her anus (count 13).

9. [15]

   The applicant put the complainant face-down on his mattress and pushed his penis into her anus. He then went to the kitchen to get some sunflower oil, which he applied to her anus before pushing his penis into her anus. She complained that it hurt and asked him not to do it but he told her that he “didn’t care” and continued to do it. His penis became flaccid, after which the applicant told her that his “rude part was happy”.

10. [16]

    After the anal intercourse (count 14), the applicant put the complainant on top of him on the bed while he held her with his legs. He was playing with his penis and pushed the back of her head towards his penis. She tried to shout but the applicant covered her mouth with his hand (count 15).

11. [17]

    Five minutes later, the applicant took the complainant to the bathroom and made her touch his penis (uncharged). The applicant explained what he was doing to the complainant. Her evidence was that “he was trying to get this white thing out of him … I don’t know what it’s called, but he was trying to get this white thing out of himself”. This conduct ceased when the complainant’s mother rang to say that she was coming home. The complainant recalled the applicant having a shower and going to bed.

12. [18]

    The complainant said that the time between the applicant inserting his fingers into her “rude part” (counts 12 and 13) and getting her to touch his penis (uncharged act after counts 14 and 15) in the bathroom was “like half an hour or forty minutes”.

13. [19]

    The complainant gave evidence that the applicant touched her ten or eleven times during the period when they were each living in her parents’ unit at Bankstown. She said that, on occasions, he used to close his bedroom door so that he would know whether her parents were coming. On one or two occasions he put the handle of a spoon into her anus, which hurt.

14. [20]

    The Crown relied on the evidence of uncharged acts as well as the evidence of each of the counts as tendency evidence. The tendencies alleged in the notice served pursuant to s 97 of the Evidence Act 1995 (NSW) were as follows:

15. [21]

    The Crown alleged that:

16. [22]

    The applicant’s trial counsel did not object to the evidence of charged and uncharged acts as admissible and cross-admissible for tendency purposes.

17. [23]

    Ms Asad gave evidence of speaking with the complainant at school on 9 December 2020, when she observed that the complainant was “not herself”. The complainant told her teacher what she subsequently told police when she was interviewed. While she was disclosing these matters to Ms Asad, the complainant was crying. Ms Asad’s evidence included the following:

18. [24]

    Ms Asad’s incident report included that the complainant told her that she was too scared to tell her family because she did not think that they would believe her. The complainant said, “[t]hey leave me with him when they go outside and he does this to me. I don’t like it and it hurts”.

19. [25]

    The complainant’s evidence about telling Ms Asad included the following:

20. [26]

    The complainant was interviewed by police at the school and on subsequent occasions (these recorded interviews, together with pre-recorded evidence, became her evidence).

21. [27]

    When the complainant’s mother collected her from school that day, the police informed her of the allegations. When the complainant and her mother arrived home, her mother “apologise[d] to her for [their] failure to protect her”. According to the complainant’s mother, the complainant told her that the applicant was “frightening” her and “saying things like, ‘When you grow up you will marry me. Your father and your mother will know – if they find out they will know that you are as guilty as I am and they will not own up to you’”. The complainant also told her mother that the applicant “made [her] watch bad videos” and “held [her] forcefully”.

22. [28]

    The applicant gave evidence denying the charges. He also said that the complainant accessed his phone to watch pornographic videos which he had on the phone for his own purposes. It is not necessary to detail his evidence as the jury’s verdict made plain that it did not accept it.

The appeal against conviction

1. [29]

   The sole ground of appeal on conviction is that the trial judge misdirected the jury as to the proper approach to tendency reasoning.

2. [30]

   In order to address this ground, it is necessary to refer to, or set out, relevant directions given in the course of the trial judge’s opening remarks and in the summing up, as well as other passages from the summing up.

3. [31]

   In the trial judge’s opening remarks, his Honour made several references to the onus and standard of proof, including the following:

4. [32]

   Early in the summing up, the trial judge repeated this direction. His Honour then read out and gave each juror a copy of a document (MFI 11), in which the elements of each of the 15 counts were set out under separate headings. Each element followed the same format adopted with respect to the first count, as follows:

5. [33]

   The trial judge also gave a separate consideration direction (that the jury was required to give separate consideration to each count) and a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) as follows:

6. [34]

   The trial judge also directed the jury that it needed to be “satisfied beyond reasonable doubt that [the complainant] is both an honest and reliable witness whose evidence is accurate in vital respects”.

7. [35]

   His Honour addressed the evidence of complaint to Ms Asad and the complainant’s mother and concluded by saying:

8. [36]

   The trial judge addressed the use of the evidence of charged and uncharged acts for a tendency purpose. Because this aspect of the summing up is the subject of the ground of appeal, it is set out in full below with numbered paragraphs, which I have added for ease of reference:

9. [37]

   The trial judge also gave a Liberato direction (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66):

10. [38]

    Before summarising each of the Crown case and the defence case, the trial judge reminded the jury again of the need for it to be satisfied of the elements beyond reasonable doubt.

11. [39]

    Mr Chhabra, who appeared with Mr McGinness for the applicant, submitted that the trial judge’s failure to give a direction in accordance with the approach sanctioned by Basten AJA (Hamill and Dhanji JJ agreeing) in JS v R [2022] NSWCCA 145 (JS), which was approved by the High Court in Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 (Roder) was a misdirection which resulted in a miscarriage of justice. He submitted that the direction amounted to a misdirection because the jury was directed to answer the anterior question – whether it was satisfied that the conduct said to constitute the tendency actually occurred – in circumstances where the proper approach was to ask whether the jury considered that the accused had the tendency alleged (on the basis of the evidence of the conduct relied on to support the tendency).

12. [40]

    Mr Chhabra relied on what Basten AJA said at [43] of JS (which was approved in Roder):

13. [41]

    His Honour continued, at [44]:

14. [42]

    In Roder, the High Court unanimously approved [43] of JS as follows:

15. [43]

    The High Court concluded [28] by referring to [44] of JS as follows:

16. [44]

    This Court in JS and the High Court in Roder considered how best to direct a jury in circumstances where charged acts (which, as such, needed to be proved beyond reasonable doubt in order to establish guilt) were also used for a tendency purpose: that is, to prove that the accused had a particular tendency which made it more likely that the accused committed the charged acts. Because a tendency, being circumstantial evidence, does not need to be proved to any particular standard, the evidence of a charged act can be used to prove a tendency even if it does not establish the act beyond reasonable doubt. However, if the jury is satisfied of the alleged tendency and considers that the tendency makes it more likely that the accused committed the charged conduct, the tendency can be used as circumstantial evidence to prove the charge, which must be proved beyond reasonable doubt.

17. [45]

    The risk (identified by Basten AJA in JS and the High Court in Roder) of directing the jury that it must be satisfied of certain conduct (being the charged conduct) in order to find a tendency is that the jury might be misled into thinking that the lower standard, which applies to this reasoning, diminishes the requirement that a charge must be proved beyond reasonable doubt before the jury can convict the accused of that charge. Basten AJA suggested that this risk could be avoided by directing the jury that it ought have regard to the evidence relied on by the Crown to establish the tendency (which may, as in JS, Roder and the present case, include evidence of the charged acts). If the jury infers the tendency from the evidence, the jury can then reason from the tendency to the consideration whether the tendency makes it more likely that the accused committed the charged acts. The jury must be directed that, before a verdict of guilty can be returned, it must be satisfied of the charge beyond reasonable doubt.

18. [46]

    In the present case, the trial judge gave the direction which was in the Criminal Trial Courts Bench Book (the Bench Book) before Roder was decided. In paragraphs 3, 4 and 5 of the summing up, his Honour referred to the jury needing to be satisfied of the conduct before inferring a tendency. This did not accord with the “preferred approach”. However, the question is whether there was a material risk that the directions that were given diverted the jury from its ultimate task of determining whether the Crown had proved the elements of each charge beyond reasonable doubt.

19. [47]

    I do not consider there to have been any such risk. The trial judge was fastidious about directing the jury that it needed to be satisfied of the elements of each offence before returning a verdict of guilty in respect of the corresponding count. His Honour not only directed the jury as to each element of each charge, but also gave each juror a copy of a document which set out each element, with a heading below each count directing the jury of the need for the Crown to prove each element beyond reasonable doubt. Further, the summing up emphasised the way in which evidence could be used for a tendency purpose in terms which largely corresponded with the formula approved in JS and Roder.

20. [48]

    In conclusion, I am not persuaded that there was any realistic possibility that the jury in the trial in the Court below did not understand the directions given by the trial judge about the need for the Crown to prove each element of each charge beyond reasonable doubt. While the form of the direction given differed in minor respects from the approach preferred in JS and Roder, the jury was not misdirected.

21. [49]

    Mr Chhabra accepted that leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (r 4.15) was required as the applicant’s trial counsel did not object to the direction that was given. I consider that leave ought be granted. The trial judge directed the jury in accordance with the then current draft direction in the Bench Book. Although JS was handed down on 29 June 2022, about a year prior to the trial in the present case, its import was not necessarily fully appreciated until it was approved in Roder.

22. [50]

    Although the sole ground on the conviction appeal has not been made out, I would be disposed to grant leave to appeal.

The appeal against sentence

1. [51]

   The first ground of challenge to the sentence is that the trial judge erred in finding that the duration of count 14 was “about an hour”.

2. [52]

   The evidence given by the complainant at trial has been summarised above. It formed the basis on which the trial judge sentenced the applicant. However, prior to the sentence hearing, the Crown proposed a document which set out the facts relevant to sentencing. The applicant’s trial counsel did not take issue with the facts set out. The “proposed facts” relating to the incident which comprised counts 12,13 and 14 were as follows:

3. [53]

   As referred to above, the complainant gave evidence that the time between the applicant putting his fingers in her “rude part” and getting her to touch his penis in the shower was “like half an hour or forty minutes”.

4. [54]

   The trial judge accepted that the “proposed facts” accorded with the evidence. His Honour included the proposed facts relating to counts 12-14, word for word, in the reasons. However, when his Honour was going through the counts for the purposes of assessing objective seriousness, his Honour said that count 14 “went for about an hour” and “occurred over a lengthy period”.

5. [55]

   The gravamen of the applicant’s proposed ground 1 of appeal against sentence is that the trial judge’s sentencing discretion miscarried because his Honour overstated the duration of count 14 by saying that it went for about an hour when, according to the complainant, it only went for 30-40 minutes.

6. [56]

   There are three available hypotheses:

   1. (1)

      the judge made a slip and said, “about an hour” when his Honour meant to say “about half an hour”;

   2. (2)

      the trial judge said, “about half an hour”, which was mistranscribed as “about an hour”; or

   3. (3)

      the trial judge disregarded the findings he had made (based on the proposed facts) that the duration was about half an hour and, instead, made a finding contrary to the evidence that it was about an hour.

7. [57]

   I regard the third possibility as no more than fanciful, having regard to the trial judge’s findings about each of the counts (which replicated the proposed facts document), in which his Honour said, expressly, that count 14 “went for about half an hour”. I would refuse leave with respect to the proposed ground 1 of the appeal against sentence.

8. [58]

   A finding of manifest excess is a conclusion that it was not open to the trial judge to impose the sentence in fact imposed because it fell outside the range of available sentences: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J): see also the summary of authorities in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing).

9. [59]

   In the table at the outset of these reasons, the indicative sentences are set out, together with the maximum penalties and, where applicable, the SNPPs for each charge. The indicative sentences specified by the trial judge were, in each instance, significantly below the SNPP for each offence, notwithstanding that on no view could any be regarded as at the lowest range of objective seriousness. The trial judge found that “none of the offences could be described as being below the midrange of objective seriousness for offences of the type charged”. His Honour assessed counts 11 and 14 counts as being “above the mid-range for these offences”.

10. [60]

    The aggregate head sentence of 24 years’ imprisonment implies substantial concurrency (in the limited sense in which such a concept can be reconciled with the nature of an aggregate sentence). It can be inferred that ample allowance has been made for the circumstances that several of the offences occurred as part of a single occasion or incident.

11. [61]

    There were few, if any, mitigating factors on sentence save for the lack of criminal history. The applicant continued to deny the offences. There was no evidence of remorse or insight. The trial judge said that he could “not make a finding that he is unlikely to re-offend given his lack of remorse, [the] risk assessment and noting that he has not given evidence in the sentence hearing”.

12. [62]

    I regard the aggregate sentence imposed as being well within the range for the whole of the criminality for which the applicant stood to be sentenced. The non-parole period reflects the statutory ratio, in the absence of a finding of special circumstances: s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The principles of totality required a lengthy custodial term. The offending conduct involved a serious betrayal of trust and continuing abuse of a young girl who was entrusted to the applicant’s care for short periods while her parents were temporarily absent from the family home (where all of the offences were committed). The escalating violation of the complainant’s body, which is reflected in the 15 counts, culminated in painful acts of vaginal and anal intercourse, which involved the applicant using lubricant on the complainant to assist his penetration of her. The applicant’s egregious acts were compounded by the means by which he sought to obtain the complainant’s silence. He deterred her from telling her parents by warning her that they might no longer love her if they found out. But for the sensitive wisdom of Ms Asad, the complainant’s teacher, who inferred from the complainant’s behaviour that something serious must be wrong, the offending may well have continued.

13. [63]

    I would also refuse leave to appeal in respect of ground 2.

Proposed orders

1. [64]

   For the reasons given above, I propose the following orders:

   1. (1)

      Extend the time for the filing of the application for leave to appeal to 29 November 2024.

   2. (2)

      Grant leave to appeal against conviction.

   3. (3)

      Dismiss the appeal against the conviction.

   4. (4)

      Refuse leave to appeal against sentence.

2. [65]

   McNAUGHTON J: I agree with Adamson JA.

3. [66]

   R A HULME AJ: I agree with Adamson JA.