DN v R

BEAZLEY P: The appellant appeals from his conviction of one count of sexual intercourse with a person under the age of 16 years contrary to the Crimes Act 1900 (NSW), s 61J(1) and one count of inciting a person under the age of 16 years to commit an act of indecency with knowledge it was being filmed for the purpose of the production of child abuse material contrary to the Crimes Act, s 61O(2A). The maximum penalty for an offence contrary to s 61J(1) is 20 years imprisonment. The offence carries a standard non-parole period of 10 years. The maximum sentence for an offence contrary to s 61O(2A) is 10 years imprisonment.

On 24 July 2015, the appellant was sentenced for the s 61O(2A) offence to a fixed term of 10 months imprisonment and for the s 61J(1) offence a non-parole period of 4 years with the balance of term of 2 years. The sentences were ordered to be served wholly concurrently. The first date upon which the appellant will be eligible for parole is 23 July 2019.

The appellant seeks leave to appeal from his conviction on the following grounds:

The appellant seeks leave to appeal from sentence on the following ground:

The appellant, at the time of the occurrence of the offences, worked in his father’s video hire business. He was then aged 25 years and 11 months. The complainant, in response to an advertisement, applied for a casual position at the video shop. When making her application, she provided a brief typewritten resume which included her date of birth. She commenced working in the shop after school, working two to three shifts per week, usually between 5.30pm and 8.30pm. Her parents usually collected her from work.

On the Crown case, the appellant began touching the complainant inappropriately when she was working behind the front counter of the shop. He continued doing so, notwithstanding the complainant’s verbal resistance to his doing so. The complainant alleged that a number of incidents occurred which formed the subject of counts 1, 2 and 3 on the indictment, in respect of which the jury returned verdicts of not guilty.

The incidents the subject of the charges of which the appellant was convicted occurred on 8 March 2012. On that occasion, the complainant worked at the video store from 5.30pm to 8.30pm with the appellant. She was asked to work late. The appellant telephoned her stepmother and obtained permission for her to do so and for him to drive the complainant home after work. During the course of the shift, the appellant gave her a new mobile phone, saying to her, “[t]his is your new phone, because your phone is barred”. This was a reference to the fact that the complainant’s mobile phone was barred because she had gone past the $400 cap limit on her service. The complainant used the phone on that day and for a couple of days thereafter.

At the end of the shift, the appellant and complainant closed up the video store. After a short stop at a nearby pizza outlet, the complainant told him she wanted to go home. The appellant did not drive her straight home but rather went to his home, parking the vehicle in the driveway. When the complainant asked what they were doing there, the appellant told the complainant that he “wanted to put the money in the safe, and collect his dad’s keys so he could drive his dad’s car”. The complainant went inside the house with him and, at his direction, went into his sister’s room at the front of the house. The appellant then called to her from his bedroom and she joined him there and sat on the queen-sized bed as the appellant put his clothes away.

The appellant then removed the complainant’s work shirt. In examination, the complainant said, “he told me that I would be walking home if he did not take another photo”. The complainant was frightened and allowed him to pull her shirt off. She was wearing a cream-coloured bra. The appellant then forced the complainant to have oral sex with him. This conduct was the subject of count 4 on the indictment, being the offence contrary to s 61J(1).

The appellant then, using his iPhone, took one or two photographs of the complainant’s bare breasts before she got dressed. Although her evidence varied as to the state of her clothing, her final position was that when the appellant took a photo of her, she only had her pants on, the appellant already having removed her bra as well as her shirt. The complainant could not recall where the appellant was when he took those photographs. This conduct was the subject of count 5 on the indictment, being the offence contrary to s 61O(2A).

On Saturday 10 March 2012, the complainant disclosed to a number of school friends that the appellant had tried to force her to have oral sex with him in the video shop. The complainant conceded in evidence that this had not occurred, but said that it was her way of telling her friends that something had happened. She accepted in evidence that what she had told her friends was a lie but said that she was upset and wanted to tell them something about the appellant. She said that she started to cry on this occasion. She said in cross-examination that she had not told her friends of the incidents on 8 March 2012 as she was “too scared” and that “talking about it … wasn’t an option”.

A number of school friends gave evidence and confirmed that the complainant had been upset, “was a mess” and had started to cry. The friends confirmed that the complainant told them of sexual activity that the appellant made her engage in but did not tell them of the incident at his house on 8 March 2012.

The complainant also complained to her father and stepmother about the appellant’s conduct. One evening, which he put at about 10 March 2012, the complainant’s father came home from work and found his daughter in her bedroom crying. She told him that the appellant had “grabbed her on the breasts and put his crotch in her face”. The complainant’s father told her not to go back to the video store. Later that night, he went to the video store, returned some DVDs and also gave back the iPhone. When returning these items the complainant’s father said to the appellant, “[the complainant’s] told me what’s happened and if you ever see her I will fillet you you fat fuck”.

The complainant’s stepmother said that on 12 March 2012 she became aware of a text message on her son’s mobile phone to the effect that the appellant had pushed the complainant’s head into his crotch. She said she and the complainant’s father spoke to the complainant, asking if she enjoyed working at the video store and said:

On the same night, shortly after this conversation, the complainant attended with her stepmother to report the matters to the police. On the Crown case, the complainant had terminated her employment at the video store by the time she went to the police.

One of the complainant’s co-workers at the video store gave evidence that the appellant had said to her on one occasion that he had had an argument with the complainant’s father and that he was “worried what she could say cause she’s only, like, a certain age”. She thought the age the appellant had mentioned was 14 or 15.

The complainant’s co-worker was also cross-examined concerning the potential presence of photos of the complainant and a friend on the work computer at the video store. The appellant in cross-examination said that he believed, when the complainant phoned him to ask about photos, that she was referring to the photos on the work computer. The appellant accepted that he had never discussed the presence of any photos of the complainant on the work computer with the complainant. The complainant denied any knowledge of the photographs of her and a friend on the work computer at the video store.

Following her complaint to the police, the complainant made a number of telephone calls to the appellant, which were formally recorded pursuant to a Surveillance Advice Warrant issued on 23 March 2012. The conversations recorded pursuant to the warrant were as follows.

On 24 March 2012, the complainant telephoned the appellant and had the following conversation with him (“V.3” is the complainant, “V.2” is the appellant):

On 26 March 2016, at 2.14pm, the complainant again made a recorded telephone call to the appellant’s mobile number, but received a message that the number had been disconnected.

The complainant then phoned the telephone number of the video store and had the following conversation with the appellant:

On 17 April 2012, the complainant went to the video store. The conversation the complainant had with the appellant was also recorded by the use of a listening device. When she first attempted to speak to the appellant, he was attending to a customer. The complainant had a further conversation with him about 15 minutes later, as follows (“V.1” is the complainant, “V.2” is the appellant):

The complainant had another conversation with the appellant on 24 April 2012, which was also recorded, as follows (“V.1” is the complainant, “V.2” is the appellant):

An arrangement was made in this conversation for the complainant to come to the video store the following Sunday, 24 April 2016, to collect money that was owed to her. However, on that day, the complainant rang the appellant to say she could not come in. The telephone call was again recorded as follows (“V.3” is the complainant, “V.2” is the appellant):

The appellant acknowledged that, as no direction had been sought from the trial judge, leave to raise this question required leave pursuant to the Criminal Appeal Rules r 4, which provides:

The appellant read the affidavit of Terrence Healey, who appeared for him at trial. In his affidavit, affirmed on 1 September 2016, Mr Healey, having been provided “with the relevant transcript of the closing address and the cross-examination of the appellant”, deposed that he had “no memory of making any tactical decision regarding such a direction”.

In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, McHugh J, at [72], explained that the grant of leave under r 4 requires an appellant to establish:

In ARS v R [2011] NSWCCA 266, Bathurst CJ stated the principles in relation to the operation of r 4 as follows:

Although I have a concern that trial counsel’s omission to seek a direction was a considered decision, given the Crown’s acknowledgement that had a direction been sought, it would have been appropriate for the trial judge to give a direction and it was likely that a direction would have been given, I am of the opinion that leave to raise this ground should be granted.

The appellant’s defence was that the conduct alleged by the complainant did not occur. In particular, insofar as it is relevant to the issues on the appeal, the appellant denied that he had taken any photographs of the complainant. It was the defence case that the complainant had made false allegations against the appellant in retaliation for him sacking her on 10 March 2012 because of her poor work performance and her increasing indebtedness to the store for purchases of soft drinks and confectionary and the rental of DVDs.

The appellant gave evidence. It was a significant aspect of the Crown’s attack on the appellant during his cross-examination that he had disposed of his phone because it contained the photographs of the complainant that he took, relevantly, on 6 and 8 March 2012, as the complainant had alleged. The appellant denied that this was the case. He agreed that his mobile phone number was disconnected on 26 March, but also said he could not be 100 per cent sure that he disconnected it, as he “might have just changed SIM cards or let it run out”. He agreed that he possibly had got a new number, but did not agree that he had got a new phone. He accepted that he did not have the iPhone when he was arrested on 8 October 2013. He was not able to provide a definitive answer as to why he had changed his mobile number, saying that there might have been a better deal that had come up with a different provider.

The Crown questioned him as to whether, at the same time that his mobile phone number was disconnected, or was no longer available, he “got rid of the phone?” The appellant responded, “I cannot be 100% sure whether I got rid of the phone”. The cross-examination continued:

The appellant denied that he got rid of the phone because it had the topless photographs on it. He said “No, because I never took any photos”.

It was again put to him in cross-examination that he had got rid of his mobile phone number and his phone. He responded, “I had gotten rid of my mobile phone number but I can’t – I can’t 100% say that I got rid of a – got rid of the phone”. The cross-examination continued:

In closing address to the jury, the Crown stated:

The Crown then enumerated the complaints that the complainant made to her friends, to her parents and to the police, as well as her evidence in court. The Crown reminded the jury that the complainant acknowledged that what she had told her friends was a lie, a matter that she had volunteered in her evidence, and advanced that as indicative of her frankness. The Crown then turned to the cross-examination of the appellant:

There next followed the impugned passage:

Trial counsel for the appellant then addressed the jury. He pointed out, inter alia, that “[e]verything depends upon really what [the complainant] has said”:

The trial judge, in his summing up to the jury, in the course of summarising the evidence, pointed out the appellant’s evidence in relation to his phone as follows:

Later, when summarising the appellant’s case as advanced by his counsel, his Honour made the following observations:

Earlier, at the commencement of the summing up, his Honour had given the conventional directions that the onus was on the Crown to prove the guilt of the accused.

His Honour added:

The appellant submitted that the cross-examination of him invited the jury to reason that his conduct in disposing of the phone and changing the number revealed that he had a consciousness of guilt in respect of the offences. This approach was underscored, it was submitted, in the Crown’s statement to the jury set out above at [37]. The appellant contended that post-offence conduct may support consciousness of guilt reasoning and, in that regard, attracted the same principles as applied in respect of lies told by an accused person: McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1 at [26]-[27]. The appellant submitted that this principle was confirmed in Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 where Latham J observed, at [6]:

Latham J noted that destruction of evidence was capable of constituting consciousness of guilt: see also McKey at [26].

The evidence established that the appellant changed his phone number between 12 March 2012 and 26 March 2012. By that time, the appellant was aware that the complainant had made allegations against him. The appellant submitted, however, that the post-offence conduct upon which the Crown relied was not capable of constituting an implied admission against interest or supporting an inference of guilt. In particular, the appellant submitted that his disposal of the phone could not support an inference of guilt unless it was presumed that the phone contained the photos that it was contended the appellant had taken of the complainant.

The appellant complained that the use of evidence that he had got rid of the phone as evincing a consciousness of guilt was an exercise in circularity in circumstances where the Crown sought to rely upon that evidence as independent evidence in support of the complaint. The appellant submitted that the Crown had failed to observe the injunction in Edwards v R (1998) 178 CLR 193 at 208-11; [1993] HCA 63 that where a lie was relied upon as an implied admission of guilt to corroborate the evidence of a complainant, it was necessary to rely upon other evidence to establish the asserted facts to establish the lie. The appellant further submitted that this circularity of reasoning deprived the evidence of the capacity rationally to support an inference of guilt, as had been explained in Kuehne at [69].

The appellant, in the course of argument on the appeal, drew attention to the cross-examination, set out above at [34], in which he was questioned about two distinct matters: the first, that he had changed his mobile telephone number; the second, that he had “got rid of the phone”. The appellant submitted that underlying the Crown’s questioning in respect of the second of these matters was that the appellant did not want to be found in possession of the phone because it had, on the Crown case, the incriminating photos on it. The appellant pointed out that he did not make any direct or clear admission that he had disposed of the phone. It followed that there was also no evidence that he had changed his mobile number and at the same time got rid of the telephone.

The appellant submitted that the Crown, in the passage reproduced above at [37], did not precisely identify or articulate how the conduct of disposing of the phone led to a consciousness of guilt, in circumstances where the appellant had not been able to say what had happened to the phone three years after the event and, in particular, had not admitted that he had deliberately disposed of the phone knowing that the photographs were on it. The appellant pointed out, for such conduct, that is, disposing of the phone, to amount to an admission against interest, it was necessary that the complainant’s account, that there were photographs of her on the phone, be correct.

The appellant contended that in circumstances where there was a real question as to whether the appellant had got rid of the phone at all, its capacity to provide independent evidence in support of the complainant’s account was doubtful. The appellant submitted that had a direction as to consciousness of guilt reasoning been given, the jury would have been invited to focus upon the paucity of the evidence as to what actually happened to the phone.

This last submission was a direct response to the Crown’s written submission that had a direction been given, it would have drawn attention to the damning effect of the evidence of the destruction of the phone to the appellant’s defence. The Crown submitted that this was why trial counsel did not seek a direction as it would have been to the disadvantage to the appellant to do so.

The Crown accepted that the passage to which reference has been made in the Crown’s closing address, set out above at [37], could be characterised as involving consciousness of guilt reasoning. However, the Crown submitted that there was no error in the Crown referring to this evidence in the closing address. The Crown submitted that the relevant conduct had been precisely identified, namely, the deletion of the photos and the disconnection of the phone number. There was no dispute that the appellant no longer had the phone and, on the Crown case, the appellant had admitted in the recorded conversation of 17 April that he had deleted the photos. It was also submitted that the evidence was clearly capable of supporting the inference that the appellant had got rid of the phone because he was concerned that it might implicate him in the offences with which he was ultimately charged.

The Crown submitted that there was no circularity of reasoning in the use of this evidence and that in this regard, Kuehne was distinguishable. In that case, the Crown had relied upon the accused’s delay in giving an exculpatory version to the police as evidence of consciousness of guilt, but had failed to identify how the delay in presenting to the police supported an inference of guilt save that it was suggested that in delaying going to police the accused had concealed their guilt. It was submitted that the present case was markedly different. Evidence that the appellant had deleted the photographs and his evidence that he did not have the phone was directly connected with the offence in that had the phone been available its contents would have revealed evidence that would have directly proved the offence.

That being so, the Crown submitted that the real issue on the appeal was not that the Crown had made the statement to the jury in the terms set out at [39] above, but whether the trial judge was required to give an Edwards-type direction. It was accepted by the Crown that no such direction was given.

The Crown submitted that the appellant’s emphasis on the distinction between his changing his telephone number and the disposal of his phone, if that occurred, was a false one, in circumstances where during cross-examination, the Crown sought to link both together. This was apparent, it was submitted, from the cross-examination reproduced above at [32]-[34].

The Crown also submitted that the appellant’s reliance upon the three-year time difference between the events subject of the charge and the trial was a distraction, because the appellant was aware from 12 March 2012, when he was confronted by the complainant’s father, that there was an allegation that he had taken photographs of the complainant on his phone. Further, the appellant knew from the time of his arrest in October 2013 of the allegation that he had taken photographs on his phone. Accordingly, there had been two occasions, one proximate to the time of the offending conduct, and another some 18 months later, in respect of which the appellant knew that the whereabouts of his phone was a matter in issue.

The Crown also submitted that, contrary to the appellant’s submission that there were two independent acts that were relied upon by the Crown as consciousness of guilt reasoning, in fact, the Crown had at all times linked the two acts, one of changing the telephone number and the second of disposing of the phone, as part of the same conduct.

The Crown accepted, however, that there was no evidence that the appellant had destroyed the phone. The only evidence relating to the whereabouts of the phone was that given by the appellant in the course of cross-examination and the fact that the phone was not seized by police at the time of his arrest in October 2013, although, as the Crown acknowledged, there was no obligation for the appellant to hand over his phone to the police in the absence of a search warrant. In this regard, the Crown accepted that the fact that no phone was produced at the time of his arrest could not be the basis for any inference to be drawn against the appellant.

The Crown acknowledged that the weight of authority is that it is highly desirable that a trial judge give a direction to the jury when there is reliance upon consciousness of guilt reasoning and that a failure to do so may result in a miscarriage of justice. The Crown submitted, however, that a direction as to consciousness of guilt reasoning is not mandatory and every case must depend upon its own circumstances.

In this case, the Crown contended that to give a direction as to consciousness of guilt reasoning would most likely have had the effect of focusing unwarranted attention upon what had happened to the phone. The Crown submitted that, in giving a conventional direction as to consciousness of guilt reasoning, the trial judge would have directed the jury that before they could have used the evidence of the destruction or absence of the phone as something that pointed towards guilt, they had to be satisfied he had got rid of the phone.

The Crown pointed out that, in his summing up, his Honour had reminded the jury that the appellant had said that he did not know whether he had got rid of the phone or not, or whether that was something that had occurred normally and was not in any way associated with this matter.

Both parties accepted that the principles governing what is required in the giving of a direction as to consciousness of guilt reasoning were stated by the High Court in Edwards. In that case, the plurality, at 209, explained why, in certain circumstances, the telling of a lie, or in this case, engaging in certain post-offence conduct, is probative of guilt as opposed to merely affecting the credit of the witness who tells the lie, or engages in the post-offence conduct, as follows:

The plurality further stated, at 211.

In Zoneff v the Queen (2000) 200 CLR 234; [2000] HCA 28, the Court was again concerned with the circumstances in which a direction as to consciousness of guilt reasoning should be given.

The plurality stated, at [16], that the circumstances in which such a direction ought to be given are as follows:

In Zoneff the prosecutor had not, during the course of cross-examination, suggested that any answer given by the accused was a lie, told out of consciousness of guilt. Nor was anything said to the jury to that effect, the circumstances being unusual in that the prosecutor did not address the jury. The High Court was of the opinion that it would have been undesirable for the trial judge to give an Edwards-type direction, as it would have required the judge to decide which of the appellant’s answers were or were not capable of being regarded as lies indicative of consciousness of guilt and would have had the effect of highlighting issues of credibility so as to give them an undeserved prominence in the jury’s mind to the prejudice of the appellant in that case. The Court concluded that a direction should not have been given in those circumstances.

The appellant also relied upon McKey; R v GJH (2001) 122 A Crim R 361; [2001] NSWCCA 128; and R v Cook [2004] NSWCCA 52 as circumstances in which the Court granted leave where the trial judge had omitted to give an Edwards-type direction. In McKey the Court, at [42], considered that an Edwards-type direction should have been given in circumstances where the cross-examination of the appellant in that case had unequivocally suggested that his conduct constituted an implied admission of guilt. The Court was of the opinion that the jury ought to have been directed that they were required to examine whether an inference of guilt was a reasonable and justifiable one and were required to exclude any alternative inference that was inconsistent with guilt.

In GJH the Court held that a direction should have been given as to the use to which lies told by the accused, upon which the Crown relied, were to be put. The Court, at [62], relied upon the direction to the jury that the High Court in Zoneff had considered appropriate where there was a risk of a misunderstanding about the significance of possible lies. Such direction should include a warning to the jury, “do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt”.

In Cook, the Court held, at [52], that a direction should have been given to the jury as to the use that could be made of the evidence of flight. The Court was of the opinion that a direction should have been given.

It will be recalled that the Crown did not submit that such a direction was inappropriate and acknowledged that the Crown’s statement to the jury could have been understood as an invitation to the jury to engage in consciousness of guilt reasoning. Accordingly, I agree with the Crown submission that the real question on the appeal is not whether a substantial miscarriage of justice arose because of what the Crown said to the jury but whether the Crown’s statement to the jury could have led the jury to reason that changing the telephone number and disposing of the phone, (if the jury accepted that happened) involved consciousness of guilt reasoning such that it was necessary, in all the circumstances, that a direction be given to ensure that there was no confusion as to the way the prosecution put its case: see Zoneff at [16]-[17].

The Crown, in that part of the address immediately before the impugned statement, had drawn attention to matters that raised for the jury’s determination whether the appellant’s evidence was credible, it being suggested that he had lied in his evidence to support the proposition that the complainant had a motive to lie about the sexual assault out of malice because he had sacked her. The Crown had further suggested to the jury that if they were satisfied that the appellant had deliberately lied in his evidence about that matter, they could take that into account in assessing his credibility generally.

In the impugned passage, the prosecutor relied upon the evidence that the appellant changed his telephone number and, on its case, disposed of the telephone as corroborative of the complainant’s evidence. The qualification, that it was “on the Crown case”, is of significance. The qualification that, on the Crown case, the appellant has disposed of the phone, was an acknowledgement that there was no evidence that the appellant had done so.

It was also, in my opinion, an invitation to reject the appellant’s evidence about the phone. The jury were told that the appellant’s getting rid of the phone, if they accepted that is what occurred, was independent evidence that corroborated the complainant’s evidence.

The appellant’s trial counsel pointed out to the jury that the appellant was entitled to get another phone, there was no onus on him and he owed no explanation. The trial judge effectively treated the matter the same way in his summing up to the jury.

The case was therefore advanced by the Crown, the appellant and the trial judge as involving first, the credit of the complainant as opposed to the credit of the appellant and secondly, as on the basis that the appellant bore no onus in the matter. It was the Crown’s onus to prove the guilt of the appellant.

If the jury had accepted the appellant’s evidence on the specific matters to which the Crown referred, the inevitable outcome would have been an acquittal on counts 4 and 5. However, there is a real question as to what the jury was to do with the evidence if they did not accept the appellant’s version of what had happened to the phone, which was itself vague and inconclusive. That question, in my opinion, critically focuses attention on whether an Edwards-type direction should have been given.

The effect of the way the matter was left to the jury was that the jury was asked to infer that the appellant had got rid of the phone because it had topless photographs of the complainant on it, taken on 8 March. That had been the focus of the cross-examination on this point. If the jury accepted the Crown’s contention and reasoned in accordance with the way the cross-examination proceeded that would have led the jury to treat the disposal of the phone as almost indisputable evidence that the appellant had committed the offence subject of count 5.

Once it is understood that that was the effect of the impugned part of the Crown address to the jury, I am of the opinion that an Edwards-type direction was required. That direction would not, in my opinion, have had the effect of unnecessarily drawing attention to the question as to what had happened to the phone as the Crown contended. The phone and what was on it was of the essence of the Crown case on count 5. It follows that I consider there has been a miscarriage of justice in the omission of giving such direction, notwithstanding that none was sought.

Notwithstanding my conclusion that the trial judge erred in not giving an Edwards-type direction, I am of the opinion that it has not been established that a substantial miscarriage occurred as a result of the omission to do so: see the Criminal Appeal Act 1912 (NSW), s 6(1).

In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, the Court set out the principles that apply in the court’s determination, pursuant to the Criminal Appeal Act, s 6(1) that “no substantial miscarriage of justice has actually occurred” as follows:

This principle has been consistently applied by the High Court. Thus in Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34 the Court stated, at [84]:

More recently, the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 has elaborated upon the meaning of “substantial miscarriage of justice” within the three limbs of s 6(1) as follows:

The appellant submitted that this court should apply the principle as stated by the High Court in Weiss, in circumstances where it was not clear whether the Court in Filippou stated or intended to state any new or qualified principle.

If it were necessary to decide that question, I would suggest that the High Court in Filippou was not stating any new principle, but rather was explaining that, in circumstances where the first or third limb of s 6(1) were in play, by virtue of the nature of the error to which those limbs are directed, a substantial miscarriage of justice would be involved by the fact of such error. However, as this case falls into the second limb, it is not necessary to come to any decided opinion as to whether that is the correct understanding of the Court’s reasons in Filippou.

There is also a question whether and if so the extent to which an appellate court may have regard to the jury’s verdict of guilt. The High Court in Weiss stated that this was a relevant consideration. However the weight to be given to relevant matters will always depend on the circumstances. Thus, in R v Ciantar; DPP v Ciantar (2006) 167 A Crim R; [2006] VSCA 263 the Court of Appeal of Victoria (Warren CJ, Chernov, Nettle, Neave and Redlich JJA), observed, at [113], that the Court gave little weight to the guilty verdict in that case because, in the absence of an Edwards-type direction, the verdict may have been affected by impermissible reasoning.

In this case, the evidence relating to the disposal of the phone was but one of a number of different pieces of evidence upon which the Crown relied to support the appellant’s credit. The plan that the complainant drew of the appellant’s home was significant corroborative evidence of the complainant’s version of events. On her evidence, she had been to the appellant’s home only once before and on that occasion had not gone into the appellant’s sister’s bedroom. Although there had been plans of the appellant’s home at the video store, there was no evidence that the complainant had ever looked at those plans, let alone memorised them sufficiently to enable her to make a sketch plan of the appellant’s house.

In addition, there was the evidence of the telephone intercepts and the recorded conversation the complainant had with the appellant on 26 March and again on 17 April, which were available as admissions by the appellant as to the photographs being on his phone. The guilty verdict is indicative that the jury accepted that the appellant had made the admissions as the Crown contended. I consider that the appellant admitted in those conversations that the photographs were no longer on the phone and that the photographs to which he was referring were the photographs he took of the complainant at his home on 8 March. I do not accept that the references in the recorded conversations to photographs were to any photographs on the appellant’s work computer.

There was also the early complaint to friends, but more particularly, there were early complaints to the complainant’s father and stepmother and then to the police. Finally, there was the appellant’s gift of a mobile phone to the appellant, which could be viewed as an attempt to discourage the complainant from making any complaint against him.

It is true that the complainant’s complaints to her friends to which reference has already been made were inaccurate. The complainant explained why she had not been accurate in what she recounted to her friends. Regardless of whether that explanation be accepted, the other evidence to which I have referred is such that I have not been left in a doubt as the guilt of the appellant on counts 4 or 5. I have come to this conclusion on the whole of the evidence, including having regard to the guilty verdict, in accordance with the principles in Weiss. It follows that I do not consider that a substantial miscarriage of justice actually occurred. I would add that even leaving aside the guilty verdict, I would have come to the same conclusion.

The appellant seeks leave to appeal against sentence on the ground that the sentence imposed for count 4 is unreasonable and plainly unjust, essentially on the basis that the trial judge’s assessment of the objective seriousness of the offence was not reasonably open.

The trial judge, after setting out his findings as to the conduct that constituted the offence and the circumstances in which the conduct occurred, summarised his findings as follows:

The Crown submitted that there should added to these factors the fact that the offence occurred in the appellant’s home and was preceded by a threat that the appellant would make the complainant walk home, it already being night time, if she did not let him take another photograph, and the added humiliation of being photographed immediately after the offending conduct had occurred.

His Honour continued:

His Honour then dealt with the offence of aggravated assault and act of indecency with filming contrary to s 61O(2A), finding that the offence occurred for the appellant’s own gratification and that although the offence was serious, having regard to the ten year maximum penalty, it was not a particularly serious example of that type of offence.

His Honour noted that at the time of the offence, the appellant was on a good behaviour bond in respect of a Commonwealth offence and that the offending in breach of that bond was an aggravating circumstance, but not one that related to the objective gravity of the offences.

The appellant did not give evidence on sentence. There was, therefore, little material before his Honour in relation to the appellant’s subjective circumstances.

His Honour had the benefit of a pre-sentence report dated 23 July 2015. That report recorded that the appellant had been brought up by foster parents from the age of six months and that the appellant’s foster parents had always treated him as their child and the appellant’s children as their grandchildren. The appellant has two children from a prior relationship and, notwithstanding the breakdown of that relationship, had fully accepted his parental responsibilities. He was reported to have a “good work ethic”.

There was some indication that the appellant had previously exhibited signs akin to depression although it appears that there was no evidence before the court that that was the case, nor was there any diagnosis to that effect. The appellant had been assessed by the author of the pre-sentence report as having a “low to medium risk of re-offending”. Nonetheless, his Honour considered that the appellant was unlikely to reoffend in this way again. Given his denial of the offences, his Honour found that the appellant had not shown remorse. Nonetheless, his Honour considered his prospects of rehabilitation to be good.

His Honour had regard to the purposes of sentencing set out in the Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, including the need to impose adequate punishment, both specific and general deterrence, denunciation of the conduct, the protection of the community, the recognition of harm to the victim and the community and the rehabilitation of the offender.

In circumstances where the two offences arose out of the same incident, his Honour considered that it was appropriate that the sentences be served concurrently. His Honour made a finding of special circumstances, stating that he had “struggled with this a little”. Although finding that the appellant’s background in foster care did not seem to have disadvantaged him, his Honour considered that the appellant had had a more difficult upbringing than otherwise would have been the case and noted that there were attendant emotional problems.

The appellant submitted that, contrary to his Honour’s finding, the objective seriousness of the offence in this case fell significantly below mid-range, having regard to the range of conduct potentially covered by such offences. The appellant pointed to the fact that the offence of aggravated sexual intercourse without consent covers a broad range of conduct and widely differing levels of objective seriousness.

This was apparent, on the appellant’s submission, from the scope of the circumstances of aggravation for which the offence provided in s 61J(2), including whether there was a threat of or actual bodily harm, the age of the victim, whether the victim had a serious physical disability or a cognitive impairment, whether the victim had been deprived of liberty before or after the commission of the offence and whether the offence had occurred as part of a break and enter offence with the intention of committing the offence under s 61J or any other serious indictable offence.

The appellant submitted that as the only circumstance of aggravation in this case was the complainant’s age, namely, being under the age of 16 years, the seriousness of aggravation was limited as the complainant was 15 years and 8 months at the time of the offence. In support of this submission, the appellant referred to the comments of Latham J in R v KNL (2005) 154 A Crim R 268; [2005] NSWCCA 260, at [42]-[43], as follows:

With respect to their Honours in that case, I would not endorse that reasoning, should it be intended to lay down some general principle of sentencing law in respect of sexual offences. The Legislature did not see fit to do so and it makes assumptions as to the effect on an individual complainant that may not be supported on any other evidentiary basis.

The general principles governing an appeal against sentence were not in dispute. It is accepted that “there will be a range of possible sentences that [may] be imposed without error”: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128]. See also Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27], where the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) reiterated:

The sentencing task involves a discretionary judgement and as such, it is necessary to demonstrate error in the sense explained in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505. In the present case, as no specific error in his Honour’s sentencing process was relied upon, it was incumbent upon the appellant to demonstrate that “the result embodied in the [sentence imposed was] unreasonable or plainly unjust”: see Markarian at [25].

The principle to be applied when sentencing for an offence which covers a range of different conduct was considered by the High Court in Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 452 as follows:

Factors that are relevant to sentencing for an offence under s 61I, being an offence that encompasses a range of offending conduct include the degree of violence, any physical injury inflicted, the form of forced intercourse and any circumstances of humiliation and the duration of the offence: R v Hibberd (2009) 194 A Crim R 1; [2009] NSWCCA 20 at [56]

The authorities are emphatic that the assessment of the objective seriousness of an offence is one that falls within the discretion of the sentencing judge. Reference has already been made to the observations of the High Court in Markarian and in AB. There may be added to those the observations of Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37], that:

In the same case, Simpson J (as her Honour then was) added, at [46], that:

The appellant did not refer the Court to any cases that were factually comparable and that might indicate that, despite the respect that must be afforded to the trial judge’s assessment of the objective seriousness of the offending conduct, the sentence imposed was not one that was available to him. For my part, I see no error in His Honour’s finding of objective seriousness. It was relevant, as his Honour found, in assessing the objective seriousness of the appellant’s offending conduct, that the appellant was in a position of dominance having regard to his status as the complainant’s employer. He was in a particular position of trust on this occasion, having arranged to drive the complainant home from work in circumstances where she was usually picked up by a parent. The sexual activity was forced upon the complainant during that period of trust, in circumstances where the appellant was in a position of dominance, as her employer.

As I consider that there was no error in his Honour’s assessment of the objective seriousness of the offending conduct, and having regard to his Honour’s finding of lack of remorse on the part of the appellant, I am of the opinion that the sentence imposed has not been demonstrated to be manifestly excessive.

Accordingly, I would propose the following orders:

DAVIES J: I agree with the orders proposed by Beazley P. I also agree with her Honour’s reasons except that I do not express any view about the correctness or otherwise of the reasoning in R v KNL [2005] NSWCCA 260; 154 A Crim R 268 referred to by her Honour at [102].

GARLING J: I agree with the orders proposed by the President for the reasons contained in her judgment.

I prefer to express no view about the decision of this Court in R v KNL [2005] NSWCCA 260, as it is unnecessary so to do.

There is no merit in the submission in effect made by the applicant that the age of the victim in this case is not a circumstance of aggravation to be taken into consideration to any real extent. It is an important matter to be considered. The sentencing Judge did so appropriately. No error has been shown.