Stevenson v R

1. [1]

   JOHNSON J: By Notice of Appeal filed on 5 July 2021, the Applicant, Owen Stevenson (a pseudonym), seeks leave to appeal with respect to conviction and sentence following his trial before Acting Judge Berman SC and a jury at the Newcastle District Court upon three counts of aggravated indecent assault under s.61M(2) Crimes Act 1900 and one count of sexual touching of a child between the age of 10 and 16 years under s.66DB(a) Crimes Act 1900.

2. [2]

   The complainant, James (which is not his real name), is entitled to protection against identification by operation of s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987. As identification of the Applicant may tend to identify James, the Applicant is also referred to by a pseudonym in this judgment.

The Aggregate Sentence and Indicative Sentences

1. [3]

   On 11 December 2020, the Applicant was sentenced to an aggregate term of imprisonment for 10 years comprising a non-parole period of six years commencing on 10 March 2020 and expiring on 9 March 2026, with a balance of term of four years expiring on 9 March 2030.

2. [4]

   In accordance with the requirements for aggregate sentencing, his Honour nominated the following indicative sentences:

Grounds of Appeal

1. [5]

   The Applicant relies upon the following grounds of appeal:

Overview of the Trial

1. [6]

   Given the grounds of appeal, it is sufficient to outline the charged offences, and the course of the trial, in the following way.

2. [7]

   In the period 2017 to 2019, the Applicant (who was born in October 1980) was living in a de facto same-sex relationship with his partner at a house in rural New South Wales. The Applicant has a son (born in December 2010) from a previous heterosexual relationship. The son, Michael (which is not his real name), would stay with the Applicant every second week.

3. [8]

   James was born in December 2008. James’ mother was a good friend of the Applicant and the Applicant’s partner.

4. [9]

   James used to visit the Applicant’s house to play with Michael. James and Michael were close in age and were good friends.

5. [10]

   The charged offences arose out of two occasions when James stayed overnight at the Applicant’s house, the first in the second half of 2018 and the second on the Australia Day weekend of 2019.

6. [11]

   On the first occasion, James (then aged nine years) was sleeping in the spare bedroom in the upstairs area of the house. He was in bed, but was unable to sleep as he was scared. The Applicant (then aged 38 years) offered to lie down in the bed with him and James agreed. James alleged that the Applicant then touched James’ penis and masturbated him (Count 1). The Applicant then forced James to touch the Applicant’s penis and to masturbate him (Count 2). The Applicant then put a liquid between James’ legs and rubbed his penis backwards and forwards between James’ legs (Count 3).

7. [12]

   The second incident occurred over the Australia Day weekend in January 2019. On that occasion, James (then aged 10 years and one month) stayed at the Applicant’s house over two nights. On the first night, all the occupants of the household were sleeping downstairs on mattresses or lounge cushions as it was hot and there was air conditioning downstairs.

8. [13]

   During the night, after Michael had gone to sleep, the Applicant woke James. The Applicant said to James “Do you want to play around like we did before?”. James did not know what he meant, but said “I don’t know, but OK”. James took off his pants at the Applicant’s request and the Applicant straddled him, put his penis between James’ legs and “went up and down” (Count 4). It was the Crown case that the Applicant said “You know you’re a good boy. Do you want me to put it in your bum?” to which James replied “No”. The Applicant then said “Aw, shut up, just do it” and James replied “No, I don’t want to do this anymore”. The Applicant said “Look up” and the Applicant’s partner dropped some liquid onto James’ face. James started to cry and was scared.

9. [14]

   James complained to his mother immediately upon his return home after the Australia Day 2019 weekend. James’ mother called the Applicant and accused him of interfering with her son. The Applicant denied the allegations and hung up the phone.

10. [15]

    The matters were reported to police and, on 6 March 2019, the Applicant attended a police station where he participated in an electronically recorded interview in which he denied the offences. The Applicant was charged with the offences.

11. [16]

    The Applicant gave evidence in his case at trial. He denied the allegations. He also said that on the Australia Day weekend, James appeared to have had a nightmare. He was calling out in his sleep. The Applicant posited the theory that James might have become confused between dreaming and reality. He also said that he had raised concerns with James’ mother about her lifestyle, and her consequent ability to care for her son. On the basis of this evidence, another theory posited was that James’ mother had put her son up to making the allegations in retaliation for the offence caused to her by this conversation.

The Course of the Trial

1. [17]

   The trial commenced on 21 September 2020 at the Newcastle District Court. In accordance with s.306U Criminal Procedure Act 1986, the evidence-in-chief of each of James and Michael was given by playing the recorded JIRT interview conducted with each of them. The video recording of James’ JIRT interview conducted on 22 February 2019 (MFI2) and the video recording of Michael’s JIRT interview of 1 March 2019 (MFI5) were played to the jury.

2. [18]

   On 17 July 2020, pre-recorded evidence hearings involving James and Michael had been conducted before her Honour Judge Traill at the Newcastle District Court pursuant to Schedule 2, Part 29, Criminal Procedure Act 1986. Edited versions of the videos of the pre-recorded evidence hearings were played for the jury (MFI4 – James’ evidence; MFI6 - Michael’s evidence).

3. [19]

   Michael’s mother gave evidence at the trial on 22 September 2020 (T19-29). Other witnesses were called on that day including the Applicant’s partner (T42-70), James’ mother (T73-100), Senior Constable Nicole Davidson (T101-107) and Detective Senior Constable Matthew Davis (T108-112).

4. [20]

   The Crown case closed on the afternoon of 22 September 2020. The Applicant commenced to give evidence at 3.45 pm on that day (T113-119) and his evidence continued on 23 September 2020 (T129-155).

5. [21]

   The defence case was closed and, soon after, the Crown delivered a closing address to the jury (T158-166). Immediately thereafter, trial counsel for the Applicant made his closing address to the jury (T166-178).

6. [22]

   Thereafter, the jury retired for the lunch break. After lunch, the trial Judge summed up to the jury with the jury retiring to consider its verdicts at 2.35 pm on 23 September 2020, the third day of the trial.

7. [23]

   No challenge is made in this Court to any part of the trial Judge’s summing up, which included a direction under s.293A Criminal Procedure Act 1989 concerning James’ evidence and a summary of the closing addresses of the Crown and defence counsel.

8. [24]

   Shortly after retiring to consider verdicts, the jury sent a note to the trial Judge requesting the discs of James’ JIRT interview and pre-recorded evidence. After receiving the jury note, the trial Judge discussed the request with counsel and the jury returned to Court.

9. [25]

   His Honour gave the jury the following further direction, in which, in accordance with R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278, the jury were told that the recordings needed to be played in open court in the presence of the parties (SU31-32):

10. [26]

    After a short adjournment, his Honour returned to Court and the following ensued (SU32-33) (emphasis added):

11. [27]

    His Honour then gave the jury usual directions before the jury separated for the day.

12. [28]

    On 24 September 2020, the fourth day of the trial, the jury returned to the courtroom at 9.37 am and the trial Judge gave the jury the following additional explanation and direction (SU37-38) (emphasis added):

13. [29]

    At 12.08 pm, the jury returned verdicts of guilty on each of the four counts.

Affidavit of Trial Defence Counsel

1. [30]

   In this Court, Mr Wendler, counsel for the Applicant, read without objection, the affidavit of Robert Noel Hussey sworn 31 January 2022. Mr Hussey was trial counsel for the Applicant.

2. [31]

   In the affidavit, Mr Hussey explained why no application was made to the trial Judge for any direction concerning the jury viewing James’ JIRT interview whilst deliberating. Mr Hussey said:

3. [32]

   Decisions of this Court have considered the circumstances in which an affidavit of trial counsel should be received on appeal to explain why objection was not taken at trial, or a particular direction sought at trial where leave is required under Rule 4 Criminal Appeal Rules, now Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021: R v Moussa (2001) 125 A Crim R 505; [2001] NSWCCA 427 at [56]-[63]; Haidari v R (2015) A Crim R 422; [2015] NSWCCA 126 at [44]-[47]; Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [85]-[95].

4. [33]

   At times, affidavits have been received where a ground of appeal asserts incompetent representation by trial defence counsel, although this Court has emphasised that the focus of attention in determining an incompetent counsel ground should be the objective features of the trial process: Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160 at [153]-[165] (and the authorities there considered).

5. [34]

   The Applicant does not assert incompetence on the part of trial counsel. The ground of appeal contends that a miscarriage of justice occurred in the circumstances of this case.

6. [35]

   Here, the affidavit of trial counsel was read without objection from the Crown. The affidavit assists this Court to understand why trial counsel did not seek any further direction in this case. As it happens, counsel’s approach at trial is entirely understandable.

7. [36]

   It remains a matter for the Court to determine whether a miscarriage of justice is demonstrated in this case.

Should This Court View James’ JIRT Interview and Pre-Recorded Evidence for the Purpose of Determining the Appeal?

1. [37]

   An issue arose at the hearing of the appeal as to whether the Court should view the recordings of James’ JIRT interview and his pre-recorded evidence. The Crown acknowledged that it was a matter for the Court to determine whether this step should be taken, but submitted that the Court should view the JIRT interview only as this was the sole recording viewed again by the jury whilst deliberating.

2. [38]

   Mr Wendler submitted that the Court should view both James’ JIRT interview and his pre-recorded evidence.

3. [39]

   It remains a matter for the Court to determine whether viewing the recordings of the JIRT interview and the pre-recorded evidence is both necessary and appropriate for the purpose of determining the ground of appeal.

4. [40]

   Where this issue has arisen for consideration, the High Court of Australia has expressed concern that the viewing by an appeal court of a recording of an interview or evidence may give rise to imbalance, as the appeal court would not be viewing the evidence of other witnesses: SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [26]-[35], [116]. It was said that, at the least, it is necessary for an applicant’s counsel to identify the forensic purpose to be served by having the appeal court view the video recording: SKA v The Queen at [116].

5. [41]

   In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, the full High Court rejected a submission by the Crown that the Court should view the video recording of the complainant’s evidence as played at the trial for the purpose of determining an unreasonable verdict ground of appeal. The Court said at [36]:

6. [42]

   By way of further emphasis of the need for caution before an appeal court views a video recording of a witness’ evidence at trial, the Court noted in Pell v The Queen (at [37]) that the assessment of the credibility of a witness by the jury, on the basis of what it has seen and heard of a witness in the context of the trial, is within the province of the jury as representatives of the community, and that the availability of an appeal does not involve the substitution of trial by an appeal court for trial by a jury.

7. [43]

   The statements made by the High Court in SKA v The Queen and Pell v The Queen were made in the context of appeals involving unreasonable verdict grounds. The ground of appeal against conviction in the present case does not contend that the verdicts of the jury were unreasonable. Rather, it is argued that unfairness or imbalance arose from the trial Judge’s approach in dealing with the jury request, made during deliberations, to view again James’ JIRT interview.

8. [44]

   In my view, the considerations raised in SKA v The Queen and Pell v The Queen are relevant to the present case as well.

9. [45]

   A real forensic purpose must be demonstrated for the Court to view the recording: CLC v R [2015] NSWCCA 248 at [74]-[77]; Scott v R [2020] NSWCCA 81 at [50]-[54]. The Court should be conscious of the ramifications for the practical workload of this Court if the viewing of recordings of evidence became a common practice for this Court: CLC v R at [78], [93]-[95], [101]; AZ v R [2018] NSWCCA 294 at [142].

10. [46]

    To view James’ JIRT interview and, as the Applicant contends, his pre-recorded evidence as well, would involve this Court viewing part of the evidence which was before the jury. The jury had the JIRT interview and pre-recorded interview of Michael as well as having seen and heard evidence of witnesses including, importantly, the Applicant.

11. [47]

    Given the application that was made to this Court by the parties, I have given careful consideration to the request that the Court view James’ JIRT interview and his pre-recorded evidence. I am satisfied that this Court can consider and determine the first ground of appeal by reference to the documentary record of the trial, including transcripts of all evidence and submissions made at the trial, without viewing the recordings. The submissions of counsel prepared for the purpose of the appeal have provided additional assistance in understanding the content of James’ JIRT interview in the context of the trial.

12. [48]

    In reaching this view, I have kept in mind that the members of the Court viewed the recording of the complainant’s JIRT interview for the purpose of determining the appeal in R v NZ. The Court (of which I was a member) accepted that this step was necessary to determine that appeal. Of course, R v NZ preceded the decisions in SKA v The Queen and Pell v The Queen, where the High Court expressed considerable caution about this step, and emphasised the need for an applicant’s counsel to identify the real forensic purpose to be served by having an appeal court view the relevant video recording.

13. [49]

    I am not persuaded that a real forensic purpose has been established for the Court to view James’ JIRT interview, let alone his pre-recorded evidence, for the purpose of considering and determining the conviction ground of appeal.

Ground 1 – Appeal Against Conviction Based Upon Claimed Irregularity and Miscarriage of Justice Arising from the Jury Seeing and Hearing James’ JIRT Interview Without Additional Directions Being Given by the Trial Judge

1. [50]

   Mr Wendler acknowledged that the Applicant required leave under Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 to rely upon the conviction ground of appeal in the absence of any application made at trial for the direction now relied upon in this Court.

2. [51]

   It was submitted that a miscarriage of justice had occurred in this case as the trial Judge had not reminded the jury of aspects of the defence closing address in which mention was made of specific areas of inconsistency in James’ evidence. It was argued that the approach adopted by the trial Judge had not complied with what was said by this Court in R v NZ at [210].

3. [52]

   Counsel submitted that what occurred in this trial did not maintain a proper balance between both the prosecution and the defence cases, so as to infringe what was said by the High Court in Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18.

4. [53]

   With respect to the requirement for leave under Rule 4.15, given the failure of trial counsel to request the directions now relied upon, Mr Wendler submitted that application of Rule 4.15 cannot operate to the detriment of the Applicant if an injustice will be visited upon him: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]; R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20].

5. [54]

   It was submitted that the failure to remind the jury of defence submissions concerning the reliability of James’ evidence, following the replaying of the JIRT interview, was vitally important to the preservation of balance in the trial. Despite no request being made by trial counsel for further directions, it was submitted that Rule 4.15 should not disentitle the Applicant from relying on this ground in this Court.

6. [55]

   The Crown submitted that this had been a short trial, where the trial Judge reminded the jury in the summing up of the suggested inconsistencies in James’ account, and with that having occurred on the same day when the jury requested to view the recording again. The absence of any application for further directions, it was submitted, supported a conclusion that there was no injustice to the Applicant, nor had a miscarriage of justice been demonstrated in this case. In this respect, the Crown pointed to the affidavit of Mr Hussey which supported a conclusion that there was no miscarriage of justice in this case.

7. [56]

   The Crown submitted that the decision in R v NZ did not require the trial Judge to do any more than was done in the present case.

8. [57]

   The Crown relied on Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 in support of the argument that no miscarriage of justice had occurred in the present case. In addition, the Crown submitted that recent decisions have confirmed that the procedures described in R v NZ and Gately v The Queen are not inflexible, and that even where the preferred procedure is not adhered to, it does not follow that there would have been a miscarriage of justice: Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140; JT v R (2021) 291 A Crim R 47; [2021] NSWCCA 223.

9. [58]

   The Crown submitted that neither the High Court nor this Court has suggested that a trial Judge must invariably remind the jury of other evidence in a case where a complainant’s recorded interview was replayed. Whether or not such a course should be undertaken, it was submitted, is a matter within the discretion of the trial Judge, taking into account the particular circumstances of the trial. Further, it was submitted that the failure to take such a course does not amount to a fundamental irregularity.

10. [59]

    It was submitted that the trial Judge had dealt with James’ interview consistently with the procedures laid down by the High Court and this Court. This was not a case that required the trial Judge to draw the jury’s attention to other evidence in the trial. In this respect, the Crown relied upon a number of features of the trial itself to support a conclusion that no miscarriage of justice had occurred.

11. [60]

    The Crown submitted that leave to rely upon the first ground of appeal should be refused under Rule 4.15.

12. [61]

    The conviction ground of appeal contends that there was a miscarriage of justice under the third limb of s.6(1) Criminal Appeal Act 1912: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9], [14]; Xie v R (2021) ALR 371; [2021] NSWCCA 1 at [394]. The Applicant has the burden of proving that there has been a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [63].

13. [62]

    In considering this ground of appeal, it is helpful to keep in mind what was said in R v NZ with respect to the replaying of a video recording of a complainant’s interview or evidence. In R v NZ at [210], Howie J and myself (Wood CJ at CL and Hunt AJA agreeing) said under the heading “The preferred procedure”:

14. [63]

    It will be apparent that the trial Judge complied with what was said in R v NZ at [210](e) (see [26], [28] above).

15. [64]

    Mr Wendler relies upon the proposition from R v NZ at [210](f) (see [62] above). It must be kept in mind that what is said in that paragraph is qualified by the words “if that step is considered to be appropriate”. At all times, the issue remains one for the exercise of discretion of the trial Judge. This is not an inflexible or mandatory requirement for trial Judges to apply, irrespective of the circumstances, where the jury requests the replaying of a video-recorded interview or evidence of a complainant.

16. [65]

    The fact that a discretionary decision is to be made by the trial Judge in such circumstances was emphasised in R v NZ at [199]-[202]. As Spigelman CJ observed in R v NZ at [4], the common law recognises that a right to a fair trial operates not only in favour of the accused person, but also in favour of the community represented by the Crown. The need for fairness and balance on the part of the trial Judge were emphasised in the judgment of Howie J and myself in R v NZ at [169]-[176].

17. [66]

    I do not consider that the Applicant is assisted by anything said in Gassy v The Queen, where the majority held that the directions of the trial Judge were sufficiently unbalanced as to give rise to a miscarriage of justice.

18. [67]

    As Basten JA (R A Hulme J agreeing) recognised in Jarrett v R at [71]-[73] (and repeated in Lang (a pseudonym) v R [2021] NSWCCA 212 at [7]), the joint judgment of Howie J and myself in R v NZ did not purport to lay down inflexible or prescriptive rules, with the question whether a miscarriage of justice has been demonstrated requiring an assessment of the circumstances of the case and the trial Judge’s discretionary approach in that context. Bathurst CJ (Rothman and Garling JJ agreeing) also emphasised the non-prescriptive nature of what was said in R v NZ in JT v R at [82]-[93].

19. [68]

    I accept the Crown submission that the circumstances of this trial operate strongly against a conclusion that there was injustice to the Applicant, let alone a miscarriage of justice.

20. [69]

    First, this was a short trial. The trial commenced on Monday, 21 September 2020 with evidence continuing on 22 and 23 September 2020. Immediately after the defence case, closing addresses were made on behalf of the Crown and the Applicant on the morning of 23 September 2020. The trial Judge summed up to the jury after lunch on that day. In the course of the summing up, his Honour summarised the closing address of defence counsel, including express mention of each of the suggested inconsistencies to which reference had been made earlier that day in the defence closing address (SU25).

21. [70]

    Soon after retiring to consider verdicts, the jury made the request to view the recordings with the request being confined, in the end, to viewing James’ JIRT interview. All of this took place at a time when the defence closing address, and his Honour’s summary of the defence closing address, would have been completely fresh in the minds of the jurors.

22. [71]

    Secondly, trial defence counsel did not seek any further direction from the trial Judge. The affidavit of Mr Hussey explains why he took this course. What he said fortifies a conclusion that some further direction was not required in the atmosphere of the trial. The position adopted by trial defence counsel was understandable.

23. [72]

    Thirdly, the jury had a transcript of the entirety of the evidence in the trial, with the exception of the final part of the Applicant’s evidence as it was not available when deliberations commenced. The jury therefore had the transcript of James’ cross-examination at the pre-recorded evidence hearing together with the transcript of his mother’s evidence, with those transcripts being pertinent to issues in the trial.

24. [73]

    Fourthly, whilst the Applicant gave evidence at trial, the principal approach of trial defence counsel was to attack James’ credibility based, in large part, on the answers he had given in his JIRT interview. They had been the subject of submissions in the defence closing address which were repeated by the trial Judge in the summing up that day. Defence counsel relied on these suggested inconsistencies to challenge aspects of James’ evidence. In this way, James’ interview was just as much a part of the defence case as the Crown case, which serves to explain why trial defence counsel did not regard any further direction as being necessary after the recording was played again.

25. [74]

    Fifthly, the direction under s.293A Criminal Procedure Act 1986 was not opposed and was given in terms which had been considered by trial defence counsel before it was delivered. Following that direction, as noted earlier, the trial Judge reminded the jury about the submissions made by the Crown and by defence counsel. This was the last thing the jury heard before retiring to consider verdicts. The s.293A direction did not create an imbalance requiring the trial Judge to remind the jury of other evidence.

26. [75]

    Sixthly, no inference which assists the Applicant arises from the timing of the verdicts. As noted earlier, the jury retired to consider its verdicts at 2.35 pm on 23 September 2020 and were sent home at 4.00 pm. The interview was played at 9.30 am on 24 September 2020, with the jury continuing deliberations from 10.33 am until verdicts were delivered at 12.08 pm. Accordingly, the jury deliberated for approximately an hour-and-a-half both before and after the video of the JIRT interview was played again during deliberations.

27. [76]

    The Applicant has not demonstrated that a fundamental irregularity occurred in the trial, let alone that a miscarriage of justice resulted. The trial Judge gave directions in accordance with R v NZ and was not asked to say more to the jury by way of directions. No error has been demonstrated in his Honour’s approach.

28. [77]

    In Scaysbrook v R [2022] NSWCCA 69, Bellew J (Lonergan and Ierace JJ agreeing) said at [122]:

29. [78]

    The Applicant has not demonstrated a foundation for the grant of leave under Rule 4.15 to rely upon the ground of appeal against conviction.

30. [79]

    In my view, the Court does not reach the point where it would be necessary to consider whether leave should be granted under s.5(1) Criminal Appeal Act 1912 to appeal against conviction.

31. [80]

    I would refuse the Applicant leave under Rule 4.15 to rely upon the first ground of appeal.

The Sentence Appeal

1. [81]

   Following the return of guilty verdicts on 24 September 2020, a sentencing hearing was listed at the Newcastle District Court on 11 December 2020 and the Applicant was refused bail.

2. [82]

   The sentencing hearing proceeded on 11 December 2020 with the tender by the Crown of a number of documents (including a victim impact statement) (Exhibit 1) with the defence tendering a report dated 20 November 2020 of Rebecca Smith, psychologist (Exhibit 2), a statement dated 18 December 2019 of Detective Senior Constable Penelope Allan (Exhibit 3) and an affidavit of the Applicant dated 11 December 2020 (Exhibit 4). In addition, both the Crown and counsel for the Applicant furnished written submissions on sentence (MFI1 and MFI2 respectively).

3. [83]

   The Applicant has a prior criminal history which did not include sex offences. The Applicant had been sentenced by way of non-custodial orders for contravention of an apprehended violence order (in 2005, 2007 and 2009) and using a carriage service to menace or harass (in 2009 and 2013).

4. [84]

   No oral evidence was given at the sentencing hearing and short oral submissions were made on behalf of the Applicant and the Crown.

5. [85]

   At the conclusion of the sentencing hearing, his Honour proceeded by way of ex tempore sentencing remarks.

6. [86]

   The sentencing Judge commenced his remarks with reference being made to James’ victim impact statement made on 8 December 2020, when James was 11 years old. His Honour said (ROS1):

7. [87]

   His Honour continued (ROS1-2):

8. [88]

   The sentencing Judge then recited the facts of the offences (ROS2-4):

9. [89]

   In reciting the facts of Count 4, where reference was made to a liquid being dropped onto James’ face, his Honour said that he could not be satisfied beyond reasonable doubt that the liquid was ejaculate, with this conclusion being consistent with the submissions made by the Crown and counsel for the Applicant on sentence.

10. [90]

    The sentencing Judge then made findings concerning the Applicant’s disadvantaged upbringing and his moral culpability (ROS4-5):

11. [91]

    His Honour made the following findings concerning the objective gravity of the offences (ROS5-6):

12. [92]

    The sentencing Judge had regard to the standard non-parole period which applied to the offences in Counts 1, 2 and 3 (ROS6):

13. [93]

    His Honour had regard to the fact that the Applicant had been sexually assaulted whilst in prison and noted that he was a complainant in a trial then pending, arising from that incident. As a result, the Applicant was in protective custody and his Honour took into account that he would serve his sentence in conditions which were harsher than would otherwise be the case, with the consequential risk that the Applicant may serve the entirety of his sentence in protective custody with these risks being taken into account on sentence (ROS6-7).

14. [94]

    The sentencing Judge observed that “general deterrence is of prime importance in sentencing the offender, as it is for almost all sentences involving the sexual assault of children” (ROS7).

15. [95]

    A finding of special circumstances was made as it was the Applicant’s first time in custody, together with the need for the community to be protected by minimising the risk of the Applicant committing further offences upon release, with this involving an extended period of supervision on parole (ROS8).

16. [96]

    His Honour proceeded to nominate the indicative sentences mentioned earlier in this judgment and pass the aggregate sentence which is challenged on appeal in this Court.

Ground 2 – The Aggregate Sentence was Manifestly Excessive by Reason of the Manifest Excessiveness of the Indicative Sentences

1. [97]

   Mr Wendler submitted that the aggregate sentence was manifestly excessive by reason of the manifest excessiveness of the indicative sentences nominated by the sentencing Judge.

2. [98]

   It was submitted that the Applicant, aged 38 years at the time of sentence, had lamentable childhood years, with reliance being placed upon the psychological report which noted his dysfunctional upbringing and exposure to domestic violence and instability, although not detecting any mental health abnormalities.

3. [99]

   Whilst noting that the Applicant had a limited criminal history, it was submitted that he had no history of criminal offences nor had he been sentenced to terms of imprisonment in the past.

4. [100]

   In addition, by the time the Applicant came to be sentenced, he had been physically and sexually assaulted in prison so that he was likely to spend his sentence in protective custody.

5. [101]

   Whilst noting that there is no appeal against an indicative sentence only, Mr Wendler submitted that manifest excess in an indicative sentence may reveal why an aggregate sentence is itself manifestly excessive: Evans v R [2017] NSWCCA 281 at [41], [50]-[51].

6. [102]

   It was submitted that Counts 1 and 2 involved a course of conduct which was opportunistic and involved a breach of authority and trust, but was not accompanied by threats of violence and was of short duration. It was submitted that the sentencing Judge was correct to characterise the objective seriousness of these offences as being slightly below the mid-range. It was submitted, however, that the indicative sentence of six years’ imprisonment with a non-parole period of three years for each offence was itself manifestly excessive and that this contributed to the imposition of a manifestly excessive aggregate sentence.

7. [103]

   With respect to Counts 3 and 4, it was submitted that the sentencing Judge had erred by finding that these offences were slightly above the mid-range of objective seriousness and that the head indicative sentences of imprisonment for these two offences were close to the maximum penalty for offences of this type.

8. [104]

   It was submitted that this Court should uphold the second ground of appeal and resentence the Applicant to a lesser aggregate term of imprisonment.

9. [105]

   The Crown submitted that it was necessary for the Applicant to demonstrate that the aggregate sentence was unreasonable or plainly unjust for the purpose of establishing that the sentence imposed was manifestly excessive.

10. [106]

    The Crown acknowledged that indicative sentences may be a guide to whether error can be demonstrated in the aggregate sentence, but that the only operative sentence is the aggregate sentence. For this reason, an indicative sentence can be excessive without the aggregate necessarily being so: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39](12). Accordingly, the Crown submitted that the fundamental question for this Court is whether or not the aggregate sentence is manifestly excessive when viewed against the total criminality that fell to be reflected in it: Vaughan v R [2020] NSWCCA 3 at [91].

11. [107]

    The Crown submitted that, in view of the following features, the aggregate sentence imposed was not manifestly excessive:

12. [108]

    The applicable principles concerning a claim of manifest excess were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

13. [109]

    Ground 2, as drafted, is not a free-standing ground of appeal. Rather, it should be treated as a submission in support of a ground which contends that the aggregate sentence is manifestly excessive. The indicative sentences constitute statutory notional building blocks as part of the process of aggregate sentencing. However, the indicative sentences have no effect of themselves. A ground of error alleging manifest excess must be capable of being made good by reference to the aggregate sentence itself, and not merely the nominated indicative sentences: Noonan v R [2021] NSWCCA 35 at [33]-[37].

14. [110]

    The issue for this Court concerns the claim that the aggregate sentence is manifestly excessive. This requires consideration of the totality of the Applicant’s offending conduct. In Lee v R [2020] NSWCCA 244, Beech-Jones J (as the Chief Judge at Common Law then was), with the agreement of Payne JA and Fagan J, said at [32]:

15. [111]

    Beech-Jones J returned to the topic in Noonan v R where, with the agreement of Bathurst CJ and Wilson J, his Honour said at [41]:

16. [112]

    In Burke v R [2022] NSWCCA 6, Fullerton J (McCallum JA and Walton J agreeing) recounted (at [30]) the principles concerning a claim of manifest excess, as summarised by Bell P (as the Chief Justice then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42], and then continued at [32]-[33]:

17. [113]

    When sentencing for aggravated indecent assault offences under s.61M(2) Crimes Act 1900, it is necessary to have regard to the physical conduct involved in the offence with skin-on-skin contact with the genital region being of particular seriousness: Bray v R [2018] NSWCCA 301 at [32]. This is especially so where, as here, the offence involves skin-on-skin contact with the genital region of a child: EJDG v R [2012] NSWCCA 251 at [9]-[10].

18. [114]

    In the case of each of the s.61M(2) offences contained in Counts 1, 2 and 3, James was under the authority of the Applicant, with an associated breach of trust in the commission of the offences so as to aggravate the seriousness of each offence: s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999: EJDG v R at [27]-[28].

19. [115]

    Similar considerations apply to the assessment of objective seriousness with respect to the offence under s.66DB(a) Crimes Act 1900 contained in Count 4. This was an offence of intentional sexual touching of a child aged 10 years, and James was aged at the lowest level of the range of 10 to 16 years accommodated by that provision.

20. [116]

    The maximum penalty for each offence, and the standard non-parole period applicable to the offences contained in Counts 1, 2 and 3, were important legislative guideposts for the purpose of sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. As the sentencing Judge observed, the relationship between the maximum penalty (10 years) and the standard non-parole period (eight years) for s.61M(2) offences is difficult to understand. There is some tension arising from the curious relationship between the maximum penalty and the standard non-parole period for s.61M(2) offences. In Noonan v R, Beech-Jones J (at [45]) noted “the problematic nature of a standard non-parole period that is 80% of the maximum penalty”. Nevertheless, it remains the responsibility of the Court to have regard to the standard non-parole period when sentencing for offences of this type: Corby v R [2010] NSWCCA 146 at [71].

21. [117]

    Count 4 involved an offence of intentionally sexually touching a child between the age of 10 and 16 years under s.66DB(a) Crimes Act 1900, which does not carry a standard non-parole period. The offence under s.66DA of sexually touching a child under 10 years carries a maximum penalty of imprisonment for 16 years, and a standard non-parole period of eight years is specified for that offence. Section 66DA did not apply to the offence in Count 4, as James was 10 years and one month old at the time of the offence.

22. [118]

    Accordingly, although the Applicant’s offending conduct for the offence in Count 4 is similar to the conduct in Counts 1, 2 and 3, with the same maximum penalty applying for all four offences, there is no standard non-parole period at all with respect to Count 4. The term “sexual touching” is defined in s.61HB Crimes Act 1900 in a way which accommodates the type of offending conduct which occurred in Counts 1, 2 and 3.

23. [119]

    The sentencing exercise in this case was especially “problematic” as the apparently disproportionate 80% standard non-parole period which applied to Counts 1, 2 and 3 fell away entirely so that there was no standard non-parole period to operate as a “legislative guidepost” on Count 4.

24. [120]

    In the District Court, the Crown submitted that each of the four offences fell above the mid-range of objective seriousness for offences under the relevant provision. Counsel for the Applicant at first instance submitted that the offences in Counts 1 and 2 fell slightly below the mid-range and the offences in Counts 3 and 4 fell within the mid-range of objective seriousness. As noted earlier (at [91]), the sentencing Judge found that Counts 1 and 2 fell slightly below the mid-range and Counts 3 and 4 slightly above the mid-range of objective seriousness.

25. [121]

    Insofar as a submission was made in this Court that the sentencing Judge had erred by finding that Counts 3 and 4 were above the mid-range, I do not accept that submission. It was open to the sentencing Judge to make that finding concerning those offences having regard to the features of those offences identified by his Honour.

26. [122]

    However, the findings made concerning Counts 3 and 4 were that the offences were “slightly above the mid-range of objective gravity” with Count 4 being “slightly more serious than Count 4 because of the presence” of the Applicant’s partner. Despite the absence of a standard non-parole period to operate as a “legislative guidepost” on Count 4, an indicative sentence of imprisonment for eight years was nominated for that offence.

27. [123]

    I am satisfied that error has been demonstrated in the nomination of an indicative sentence of eight years imprisonment for Count 4 in circumstance where that conclusion was discordant with the finding of objective seriousness of that offence and the complete absence of a standard non-parole period to operate as a guidepost on sentence.

28. [124]

    This is an unusual feature of this case which has served to infect the aggregate sentence in the manner outlined in the authorities referred to earlier in this judgment (at [109]-[112]). Error has been demonstrated which affects the aggregate sentence imposed for the totality of the offences.

29. [125]

    I am satisfied that the Applicant has made good the second ground of appeal concerning sentence. It is necessary for this Court to exercise the sentencing discretion under s.6(3) Crimes Appeal Act 1912.

30. [126]

    These were offences of considerable seriousness as the sentencing Judge found. The offences were not confined to one occasion. The Applicant committed serious crimes against this young boy on two separate occasions in circumstances which traumatised the child. The impact upon James was noted by the sentencing Judge and was to be taken into account on sentence in accordance with the principles in R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110].

31. [127]

    Whilst having regard for the “problematic” standard non-parole period on Counts 1, 2 and 3, it is important that it not be given undue weight in the exercise of instinctive synthesis.

32. [128]

    Counts 1, 2 and 3 constituted part of the same course of conduct on one occasion. Count 4 occurred separately some months later. This is not a case of multiple offences being committed over a period of many months or years. These aspects are significant in assessing the totality of the Applicant’s criminal conduct.

33. [129]

    I have kept in mind that the Applicant, as was his right, proceeded to trial and was found guilty by the jury. As a result, he is not entitled to any discount for guilty pleas, nor was there any aspect of contrition or remorse to be taken into account in his favour on sentence. Further, specific and general deterrence are important factors to be taken into account on sentence.

34. [130]

    At the same time, the Applicant had a difficult upbringing and childhood experiences, as well as more onerous custodial conditions (including attacks upon him) so that his sentence will likely be served entirely in protective custody. These aspects are to be taken into account in the exercise of instinctive synthesis.

35. [131]

    Having regard to all aspects to be taken into account in determining individual sentences, including the “problematic” standard non-parole period on Counts 1, 2 and 3 and the absence of a standard non-parole period on Count 4, I would nominate the following indicative sentence for the four offences:

    1. (1)

       Count 1 – imprisonment for five years with a non-parole period of two years and six months;

    2. (2)

       Count 2 – imprisonment for five years with a non-parole period of two years and six months;

    3. (3)

       Count 3 – imprisonment for six years with a non-parole period of three years;

    4. (4)

       Count 4 – imprisonment for six years.

36. [132]

    In identifying a non-parole period as required for each of Counts 1, 2 and 3, a finding of special circumstances has been made for the reasons given by the sentencing judge (see [95] above).

37. [133]

    In determining the aggregate sentence, I have regard to the totality of the Applicant’s criminal conduct committed on two separate occasions. A substantial degree of notional concurrency is appropriate for Counts 1, 2 and 3 with a greater degree of notional accumulation for the separate and later offence contained in Count 4.

38. [134]

    For the purpose of determining the relationship between the head sentence and non-parole period as components of the aggregate sentence, a finding of special circumstances should be made (for the reasons expressed at [95] above).

39. [135]

    The aggregate sentence should comprise a head sentence of imprisonment for eight years and six months with a non-parole period of five years.

Conclusion

1. [136]

   I propose the following orders:

2. [137]

   DAVIES J: I agree with Johnson J.

3. [138]

   BELLEW J: I agree with Johnson J.