Manojlovic v R; R v Manojlovic

HOEBEN CJ at CL:

The applicant stood trial in the District Court at Goulburn before Judge Williams SC (the trial judge) and a jury between 3 and 10 February 2020 on an indictment containing eight offences relating to the indecent and sexual assault of the complainant on or about 31 March 2017. Three of the offences were charged in the alternative.

The applicant (then aged 36) was a teacher at the high school attended by the victim (then aged 17). He was not her classroom teacher at the time, but she had attended his classes on occasions over the preceding years. It was not in dispute that he was, at the time, her appointed teacher-mentor and that she had sought his assistance in that capacity earlier on the day of the offences during school hours.

The issue at trial was whether the offences were committed without the complainant’s consent, and whether the complainant was under the authority of the applicant (for the purposes of the principal counts) or under his special care (for the purposes of the alternative counts).

On 10 February 2020, the applicant was found guilty of each of the five principal counts. They were:

Having returned verdicts of guilty to the principal counts, the jury was not required to return verdicts in respect of the remaining counts: three counts of sexual intercourse with a child between 17 and 18 under special care, contrary to s 73(2) of the Crimes Act 1900 (Counts 4, 6 and 8). Those counts were charged in the alternative to each of the counts of aggravated sexual intercourse without consent.

The applicant was sentenced to an aggregate sentence of imprisonment for 3 years and 9 months, commencing on 10 February 2020 with a non-parole period of 1 year and 10 months. The non-parole period expires on 9 December 2021. The aggregate head sentence expires on 9 November 2023.

The applicant has appealed against his conviction on a single ground of appeal:

Since the appeal relates essentially to matters of fact, the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

The following facts were uncontroversial. The complainant was born in February 2000. At the time of the offences she was aged 17, having turned 17 in February 2017. She attended Bowral High School (the school) from 2012, when she was in year 7 until 2017, when she completed year 12. The applicant was first employed at the school as a casual teacher in 2013 when the complainant was in year 8. He remained in continuous employment at the school until October 2017 when the matter was reported to both the school and police by the complainant’s mother, LM.

The complainant gave evidence as to her interactions with the applicant at the school. She first met him in 2013, when she was in year 8. Halfway through that year the applicant, who was filling in for another teacher, taught her music class. In May 2014, the applicant attended a ceremony at Sydney Town Hall for the presentation of a scholarship to the complainant because Mr Morris, the Deputy Principal of the School, who had been scheduled to attend, was unavailable.

In 2014, due to conflict with a teacher, the complainant switched classes and moved into the year 9 English class taught by the applicant. The complainant believed that the switch took place around the middle of the year. On the day she was placed in his class, the complainant was “not in a very good mood”. The applicant passed her a note that said “Cheer up, beautiful”. The applicant taught the complainant English for the remainder of the school year.

In the same year, the complainant participated in a program run by Ms Mitchell and the applicant. The program was ostensibly for students from the year below her, but she was permitted to participate in it.

In 2015, the complainant was in year 10. Once a week she sat in the year 12 English class taught by the applicant in lieu of attending sport. She attended his class each Wednesday afternoon for about an hour and a half and completed homework or assignments while he taught the older students.

There was an occasion, in 2016, when the applicant taught the complainant’s English class, filling in for another teacher. The complainant gave evidence that she spoke to the applicant for the whole lesson. The complainant asked the applicant how his wife was. The applicant told the complainant that he was no longer with his wife and showed her a photo, from his Instagram account, of him lying in bed with a girl whom the complainant recognised as a former student of the school named J. In December of the same year, the complainant sent the applicant a request to follow him on Instagram. The applicant accepted the request. Thereafter, they were each able to see pictures the other had posted on Instagram. The app has a private messaging feature whereby users are able to send messages to one another, similar to a text message.

In 2017, the complainant was in year 12. The school introduced a mentoring program whereby year 12 students were able to nominate three teachers, one of whom would be appointed as their mentor. The complainant explained her understanding of the program as follows:

The complainant nominated the applicant as one of her three teachers and he was appointed as her mentor. She and the applicant compared their respective timetables to see if they had a matching free period that could be allocated as a mentoring session. They did not, so they “played it by ear” (as to when to meet up) (T28.12-41; 114.28-39).

When asked how frequently she met with the applicant, the complainant said “It wasn’t too frequently”. A lot of their contact was when he was on playground duty or she would go and see him in his class. The complainant said “if I was ever upset or something was bothering me or I just needed a break from class I would go and see him” (T28.50).

On 31 March 2017, the complainant was having a bad day after a fight with her boyfriend, CJ, and was unable to focus in class. She asked to have a mentoring session with the applicant. She was allowed to leave class for that purpose and sat in on the applicant’s year 7 music class. The complainant and the applicant spoke while the class worked independently. The complainant told the applicant that she and her boyfriend were fighting. The applicant said he thought she should break up with him. During the conversation, the applicant mentioned that he and J were having issues. The applicant said “If things aren’t too nice at home tonight, you can come to my place and have pizza and watch the footy”. The mentoring session lasted about 45 minutes. It took place during the last period of the day.

Later the same evening, the complainant had contact with the applicant via Instagram about the fact that she was fighting with her boyfriend. Sometime after 9pm, the complainant went for a drive to clear her head. As she drove, she received a message from the applicant via the Instagram app asking if she could pick him up and drive him home. She said that she would and sent the applicant her phone number asking him to call when he was ready (T32.9-33.47).

The applicant sent the complainant a message “on [her] mobile number” saying that he was ready to be picked up. He sent the complainant the address. The complainant drove to the address nominated by the applicant in Colo Vale. The house was set back from the road, with a long driveway and a horse paddock in the front. There were houses either side but they were “not close”.

When she arrived at about 11pm, the applicant was standing on the steps of the house. As he walked to her car, she noticed that he was stumbling and appeared to be intoxicated. He told her to get out of the car. When she did so, he gave her a hug, something he had never done before. The complainant said he “reeked of alcohol” (T35.40-36.10). They went inside the house and into the lounge room. The complainant sat on a two seater lounge opposite the TV. She placed her phone and keys on the coffee table. The applicant initially sat down on another lounge which was against the back wall of the room. He talked about J.

The applicant told the complainant that the house belonged to his parents. About half an hour after she arrived, he told her that there was a man staying there but he was asleep.

The applicant moved and sat next to the complainant. He tried to cuddle her and put his head on her chest. The complainant said “I was saying, “No”, like, I've got a boyfriend I’m with [CJ]. You’re with [J]”. The applicant grabbed her shoulder a number of times and tried to pull her towards him. She said “No” and pulled away from him (T37.34-40). The applicant then tried to put his head on her chest. The complainant said “ I kept sort of pushing him away and he - and I would say to him “No, you're with [J] and I'm with [CJ],” and then he would - he would go “Oh, yeah, yeah, that’s right”, and he’d move away, like, he – he’d move off me and then he would just creep closer again and then I’d say the same thing”. The complainant moved lounges “a couple of times” because she felt uncomfortable with him touching her.

The complainant was lying on a lounge. The applicant lay behind her. He “kept trying to cuddle [her]” and kept saying “I just want to cuddle. Nothing's gonna happen” (T39.1-5). They lay there for no more than five minutes. The complainant said “I was just really tense. Like, I was not touching him. I was just tense”. The applicant put his hands inside the complainant’s tights and was fondling her on top of her underwear (Count 1 – aggravated indecent assault) (T43.7-24).

The complainant got up and reminded the applicant that he had said that they were not going to be doing anything. She moved back to the other lounge before picking up her keys and phone from the coffee table and telling the applicant that she was leaving. He walked with her to the front door. At the time, the complainant assumed he was escorting her out. When they reached the front door, the applicant locked it and removed the key (T43.26-46).

The complainant walked back to the lounge room and placed her keys and phone on the coffee table. The applicant picked up her car keys and put them in his pocket (T44.5-10).

The complainant sat on the lounge opposite the TV. The applicant sat down next to her and tried to cuddle and touch her again. The complainant kept saying “No. Stop”, and repeatedly mentioned his girlfriend in order to try and persuade the applicant to stop. The applicant told the complainant she had “daddy issues”. She said words to the effect of “Yeah. You’re 20 years older than me. I don’t like men 20 years older than me”.

The complainant gave evidence that the applicant would try to lean in and kiss her and that she would pull away to the side. She said “[H]e eventually did kiss me”, that it was a “peck” and that she “didn’t kiss him back, but didn't pull away either”. On this occasion when she reminded him of his girlfriend, the applicant’s demeanour changed “like flicking a light switch” and he said numerous disparaging things about her. He then lifted the complainant’s jumper and touched her breasts. The complainant was wearing a bralette, which the applicant lifted up. He kissed her breasts. As he did so, he rubbed the complainant’s whole body from her torso, around her bottom and back up to her breasts (T45.14-46.1). At the time, the complainant “wasn’t responding”. She said “I think by that stage I was just in shock, so I was just laying there”. When asked if she agreed to him touching her in that way, the complainant said “I did not, no. I did ask him to stop” (Count 2 – aggravated indecent assault) (T46.9).

The applicant then inserted his fingers into the complainant’s vagina. When asked if she wanted him to do that the complainant said “Not at all”. As to whether she said anything at that stage, the complainant said “No I don’t – I think at that stage I’d stopped speaking”. The applicant’s fingers were in her vagina for “probably a couple of minutes”. He was kissing her breasts as he digitally penetrated her (Count 3 – aggravated sexual intercourse without consent) (T46.45).

The applicant removed the complainant’s pants and performed oral sex on her for four to five minutes. Neither said anything at the time (Count 5 - aggravated sexual intercourse without consent) (T47.4-20).

The applicant got up, removed his jeans and had penile-vaginal intercourse with the complainant. He did not use a condom. The intercourse continued for “probably three to four minutes”. She did not say or do anything as it was happening (Count 7 – aggravated sexual intercourse without consent) (T47.22-48.2). The applicant stopped suddenly, put his pants back on and started crying about the fact that he had just cheated on J.

The complainant put on her pants and underpants and asked the applicant for her keys. He did not respond. He asked the complainant to “sleep over”. She refused and said she needed to go, that she had to go to work. The applicant then gave the complainant her keys. He opened the door for her. He offered to reverse the complainant’s car around a tree. She then got into her car and left (T48.9-49.18). Sometime later, photographs were taken by police of the front door which confirmed the presence of a key in the lock.

The complainant went home and had a shower because she “felt disgusting'”. She woke the following morning to a “whole bunch of missed calls and messages” from the applicant. There were also voicemails in which the applicant asked her to come back and said that it was urgent (T49.50-50.5). The complainant drove by the applicant’s home on her way to work. He was, in her assessment “still as drunk as the night before”. When the complainant asked the applicant what was so urgent, he said that he needed to see her. She did not recall having said anything to him and left because she had to go to work.

The following Monday, the complainant saw the applicant in the corridor at school. He smirked at her and said “I didn’t even come (sic) so it doesn’t count” (T51.28). The complainant had no further mentoring sessions with the applicant. She did her best to avoid him at school but was not always able to (T51.38-.47).

In cross-examination, the complainant agreed that she regarded the applicant as “the cool teacher”. As to the suggestion that in her statement she had described the applicant as her friend, the complainant said “I did, I saw him as a friend. I saw him as someone I trusted, someone I looked up to” (T61.9-.31).

The complainant agreed that she knew that there was a “back door” to the home in Colo Vale where the offences occurred and that she had indicated as much in the diagram she prepared when she made her statement (Exhibit A) to the police. When asked about not having exited via the back door, the complainant said that she did not have her car keys. As to why she did not go to a neighbour’s house to raise the alarm, the complainant said:

The complainant added:

The complainant agreed that she went into the kitchen briefly while the applicant was getting a drink. She assumed that she did see a back door to the house while she was in the kitchen but said that she was in the kitchen before the incident and at that time, she was not feeling like she needed to run away. At that time, the applicant was “just talking about [J]” (T87.1-.13)

The complainant agreed, as she had said during her evidence in chief, that she returned to the Colo Vale house the following morning at about 7.30am. She said she “briefly recalled” the applicant asking her to go to a service station and get him cigarettes because he was too drunk to drive. She agreed that she told the applicant that she could not because she was only 17. The complainant could not recall whether the applicant said “Oh I thought you were 18” but did not deny that he may have done so. The complainant denied that she went to the service station with the applicant. She said that she had no memory of it (T101.1-.31; T102.23).

The complainant accepted that phone records showed that she called the applicant on 31 August 2017. She said she could not recall the call but asked the cross-examiner whether the call followed any missed calls. The complainant said that she recalled one call with the applicant in which they spoke about J moving to London, but that was all she could remember. The complainant denied that following the call, she had gone to the applicant’s home in Berrima for an hour. (It should be noted that the applicant did not mention such a visit in his Electronically Recorded Interview of a Suspected Person (ERISP) which was conducted in the presence of his solicitor and under special caution.)

The complainant accepted that phone records showed a 47 minute call to her from the applicant on 14 October 2017. The complainant identified this as the “[J] moving to London” conversation.

The complainant gave evidence that in her discussions with her latter boyfriend, JR, and with her brother, there was no mention of rape, nor was there any mention of it being consensual. She “totally disagreed” that she only came out with “the version of rape” (to use the cross-examiner's expression) to appease JR and keep the relationship with him going. In relation to her mother’s report of the matter to the school and the police, the complainant said “I asked her to do the opposite. I begged her not to.” She begged her not to because “I didn't want to go through the court process. I didn't want to go through this whole process” (T114.1-10).

The complainant maintained, contrary to the propositions put to her, that the applicant had taken her keys and locked her in the Colo Vale house.

The complainant’s statement to the police was not tendered and was not in evidence.

The complainant’s mother, LM, gave evidence as to the circumstances and contents of the complaint and her report of the matter to the school and police. LM initially became aware of the matter after being awakened on the (Monday) morning of the complainant’s first HSC exam (months after the date in the indictment) by her son (LG) yelling at the complainant saying “she’s fucked her teacher”. LM heard the complainant respond “No I didn’t”. LM did not immediately discuss the matter with the complainant because she was about to go to school to sit her HSC exam.

Without telling the complainant, LM arranged for JR to come over the following Friday. She confronted the complainant in the presence of a number of people including JR and told her that she needed to know what was going on. The complainant said that she had had an argument with her previous boyfriend (CJ), that the applicant had been texting her and had said come over, that she did and that he had locked the door and had sex with her. As to the complainant’s demeanour at this time, LM said, “She was distraught I mean I’d put her on the spot with people” (T133.1-.2).

LM told the complainant that she was going to report the matter to the school. The complainant did not want her to. When asked what the complainant said, LM gave the following evidence:

The following Monday, LM reported the matter to the school, and on their advice, to the police.

The complainant’s ex-boyfriend, CJ gave evidence. Like the complainant, he went to Bowral High School. He was two years above her at school. They were in a relationship “through high school and a bit after school”. He could not remember when they had broken up; whether it was 2017 or late 2016. CJ said that there was an occasion when he and the complainant were driving through Berrima (he was driving) when she pointed out the applicant's home. He had “no idea” when it happened.

In relation to the applicant, CJ said “[H]e was, I think her counsellor at school. So she used to spend a bit of time with him sort of outside of class, or when she was having a tough time at school”. As to when he was her counsellor, CJ said “I know year 12, it could have been year 11 as well, I'm not too sure” .

Megan Mitchell, another teacher at the school, gave evidence that between 2012 and 2016 she worked part-time at Bowral High School. Her role at the school was to deliver a number of special programs. She came to know the complainant through her participation in a leadership program “Speak, Act, Lead”. Ms Mitchell ran a second program, Make a Difference (MAD) which was later renamed Make a Difference Social Emotional Learning (MADSEL) which was targeted at a small numbers of year 8 students who had been identified as “at risk”. The aim of the program was to promote the students’ resilience and encourage them to re-engage with their education.

In January 2015, the applicant became involved in the MADSEL program and delivered it with her. While the program was for year 8 students, the complainant (who in 2015 was in year 10) was quite often given permission to sit in on the program when she was “not having a great day”. Ms Mitchell said the complainant would speak to her if she was having a difficult day. She also observed the complainant speak to other teachers including the applicant.

Mr Morris was the Deputy Principal of Bowral High School from 2010 or 2011 until sometime after 2017. He gave evidence that he was responsible for the complainant’s year throughout her time at the school. He described the complainant as an “exemplary student in year 7” but said that she began having behavioural issues from year 8 onwards as a result of which he had a lot of involvement with her. The complainant was given a “time out card” which allowed her to leave class and report to him if she was becoming distressed in the classroom.

The frequency with which she reported to him became an issue when the complainant was in year 9, such that he and the Principal tried to find someone else that “could look after [the complainant] and support her”. The applicant was identified as one of the people that the complainant was happy to go to and, to his knowledge, there was an arrangement put in place whereby the complainant would go to the applicant.

Mr Morris confirmed that the applicant attended the presentation of the scholarship awarded to the complainant when he was unable to do so, noting “[the applicant] was the other person that I would say was close to [the complainant] and - and really supporting [her] through school”.

In relation to the mentoring program introduced by the school when the complainant was in year 12, Mr Morris described it as a program whereby:

Staff were asked to volunteer to support the students (in the mentoring program). Staff participation was not mandatory. Mr Morris gave evidence that staff were informed as to what was involved in their role as mentor, which was:

Teacher-mentors were provided with attendance records of the students they were allocated, as well as information as to whether they were missing assessment tasks.

Mr Morris said that there were no rules about how often a mentor and mentee should meet and that he tended to catch up with the students that he mentored in the playground (T170.33-.42).

Mr Morris gave evidence, in cross-examination, that for a long period of time Bowral High School was without a school counsellor so the “school counselling load” fell back on teachers.

The final witness to give evidence in the Crown case was Detective Senior Constable Jessica Walsh. Detective Walsh took over from Detective Sergeant Gal as the officer in charge of the case in January 2018. She gave evidence in relation to a number of aspects of the police investigation. Detective Walsh made a number of efforts to obtain statements from the complainant’s brother LG and her ex-boyfriend JR, but both failed to attend appointments scheduled for that purpose. She said that Detective Gal was not at work and that she believed he was sick. As to notes he had made of conversations with the complainant’s mother, Detective Walsh said that they were not her notes and she was not present during the conversations.

The applicant did not give evidence in the trial. He relied on his ERISP, which took place on 12 July 2018 (Exhibit C). The interview was conducted in the presence of the applicant’s solicitor and under special caution. When asked to describe his relationship with the complainant the applicant said “She used to confide in me a lot about everything. About um, the dysfunction at home”. He said he regarded the mentoring program as “a joke” and said “I didn’t mentor her at all. I was more, she would confide in me regularly about you know the issue with a particular subject teacher. But or a lot to do with her family” (A72, A74, A76, A78).

The applicant described himself as a “chronic alcoholic” and said that his recollection of the past five years was “pretty damaged” such that he could not even remember how long he had lived in Berrima. He said at the time he was drinking three to four bottles of wine on a “normal day”, as well as spirits on the weekend.

The applicant described the incident with the complainant as a “consensual interaction”. He later said “It was a two-way consensual act as far as I can recall” (A326). The applicant said that he could not even remember the complainant coming into the house; that he could not remember any conversation; and that he thought there “would’ve been some sort of consoling like a cuddle or something like that which then probably led to a kiss which then went further” but that he “couldn’t even tell [police] what [they] actually did” (A153-A155).

The applicant later described a number of things that he said he did remember, including that there was cunnilingus during which the complainant said “wow” (A162, A211). When asked what the complainant’s demeanour was like during the intimacy, the applicant said she was “really happy” and that it was almost like she had wanted that interaction prior to arriving “whether it had been a plan or not” (A208).

The legal principles applying to a ground of appeal alleging that the verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, are well settled: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.

Those principles are conveniently collected in SKA v The Queen at [11]-[14] as follows:

More recently, those principles were restated in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12. The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) at [38]-[46] said:

In Neto v R [2020] NSWCCA 128 at [66] Hidden AJ (with whom Basten JA and Fagan J agreed) noted that the observation of McCallum J in Hawi v R [2014] NSWCCA 83 at [480] has particular force in a case which turns upon the honesty and reliability of the principal Crown witness as this case does. There, her Honour said:

Relying upon those authorities, the applicant submitted that when one examined the evidence of the complainant such inconsistencies, discrepancies and other inadequacies were revealed as should have caused a jury acting rationally to have entertained a reasonable doubt about his offending. The applicant submitted that there was a body of evidence, largely unchallenged, which operated as a solid obstacle to an acceptance of the complainant’s evidence beyond reasonable doubt.

The Crown did not accept that proposition, i.e. that this was a case which gave rise to similar considerations as were discussed in Pell v The Queen. The Crown submitted that in Pell v The Queen the High Court found that the verdicts of guilty were unreasonable despite the apparent credibility of the complainant’s evidence standing alone, in light of its inconsistency with independent evidence of cathedral procedure. The Crown submitted that in this case there was a direct challenge to the reliability of the complainant. Moreover, each of the issues raised by the defence was squarely before the jury and rejected by them. The Crown submitted that the basis for much of the challenge to the evidence of the complainant was that in some respects she had not acted as one would expect of a person who had been sexually assaulted.

It is, of course, now well recognised that this is an unsafe mode of reasoning and that victims of sexual assault may respond in unexpected ways without their reliability being impugned. In Maughan v R [2020] NSWCCA 51 Ierace J (with whom R A Hulme and Adamson JJ agreed) said:

There is little by way of analysis of the meaning of the words “under authority” when used as a circumstance of aggravation in ss 61J(1) and 61M(1) of the Crimes Act 1900. The provision of the Act is in the following terms:

The section was considered by this Court in KSC v R [2012] NSWCCA 179 where McClellan CJ at CL (with whom Davies and Fullerton JJ agreed) said:

When considering this issue, there are a number of matters which were uncontroversial. The complainant had only just turned 17. The applicant had been employed as a teacher at her school continuously since 2013 when she was in year 8. He had been appointed her teacher/mentor as part of an established monitoring program whereby a mentor was allocated to a year 12 student. Mr Morris described the program at [52]-[58] hereof.

The evidence of the complainant was consistent with that of Mr Morris. It is significant that as part of the mentoring program, teachers were provided with attendance records and academic records of students they were mentoring particularly where a student was missing deadlines for work. The applicant had been her English teacher in 2014. It is quite clear from the whole of the evidence that by the time the applicant was appointed the complainant’s mentor in 2017, there was already established between them a relationship of trust whereby over the years she went to him for support, had sought him out particularly and had spoken to him when things were not going well in her life. That evidence of the complainant was supported by what the applicant said in his ERISP (Q/A72).

Contrary to the applicant’s submission, 31 March 2017 was not the only occasion that mentoring had occurred between him and the complainant. The following evidence of the complainant makes that clear:

Given that the complainant throughout her schooling was a student who required additional support and assistance, and that she was proactive in seeking that additional support and assistance, it was well open to the jury to find beyond reasonable doubt that at the relevant time she was in the care of her teacher mentor and accordingly to be satisfied beyond reasonable doubt that she was under his authority as at 31 March 2017.

The applicant contends that having regard to the evidence as a whole, it was not open to the jury to find that the complainant was not consenting beyond reasonable doubt. The applicant relies upon a number of aspects of the evidence, commencing with the complaint evidence and the circumstances in which the matter was reported to police.

It was not in dispute that the first time the complainant told anyone about what had happened was in September 2017 when she told her then boyfriend, JR. It is well established that there are many reasons why a complainant may not complain of sexual misconduct or might delay in making such a complaint (see s 294 of the Criminal Procedure Act 1986 (NSW)).

The applicant relied on the fact that the complainant’s disclosure to JR did not include an allegation that the intercourse was non-consensual. The complainant gave evidence that she told JR “something along the lines of, “There was an incident with him, a sexual incident. It happened once and that's it.”” (T52.22-.44)

The disclosure was prompted by JR asking the complainant why the applicant was calling her mobile phone a lot. The terms of the complainant’s disclosure were deliberately ambiguous. She explained that what she had told JR was a “cover story” because she did not want the matter to be reported and go through the court system (T111.1). The complainant strongly opposed her mother reporting the matter to the school and police for the same reason.

In oral submissions, the applicant challenged the complainant because she described what she said to JR as her “cover story”. The applicant submitted that this response by the complainant made no sense and because it made no sense, was indicative of the complainant not telling the truth.

As already indicated, there is an inherent danger in asking the question ‘why didn’t a complainant respond in a particular way’ when the suggested response is one that is arrived at with the benefit of hindsight and the opportunity for careful consideration or careful reflection. In those circumstances, one must examine the issue from the complainant’s point of view.

The context in which the complainant gave that evidence was that she had been asked by JR why this teacher was calling her mobile phone so much. Significantly, the timing of this disclosure to JR coincided with a series of attempted calls and voicemail messages from the applicant on 5 and 6 October that are shown in the call log, Exhibit F. On 5 October there were two voicemail messages from the applicant to the complainant, an unsuccessful call on 6 October followed by a further voicemail message. That is consistent with what is set out at T52.39:

Accordingly, the answer to the first question posed by the applicant which was why didn’t the complainant just say ‘he’s my teacher’ or ‘he’s my mentor’, is that she did say that and it did not satisfy JR. So when he pressed his inquiry, she then gave what she described as her “cover story”.

The second challenge by the applicant was ‘why did she not just say he was calling about the HSC’ or something along those lines. The obvious answer to that when one looks at the timing of these calls, is that at this point in time, the lengthy call of 14 October (apparently about J going to London) had not taken place. Accordingly, the complainant did not know what the applicant was calling about. What the complainant (who did not have the opportunity for calm reflection) appears to have done was seek to deflect the inquiry by JR by giving a response which in her mind was a cover story. She plainly did not anticipate what would happen next which was caused by an unrelated fight between her and JR. Significantly, the complainant in her response to JR gave an explanation which was close to the truth but not complete. When one has regard to her wish to avoid legal proceedings, the rationale behind the “cover story” is clear. The complainant’s intention at the time was to suggest that a consensual sexual episode had taken place. In other words, the issue which the complainant did not want to reveal was that non-consensual intercourse had taken place. As a result, she gave a response that was in effect ambiguous and a half truth in the sense that it referred to intercourse but not the question of whether it was consensual or non-consensual.

Looked at in that way, the complainant’s explanation is consistent with the later statement to her mother and others that the sexual episode was in fact non-consensual.

Her mother’s evidence as to what the complainant said when she did reveal what had happened is fully consistent with the complainant’s state of mind at this time.

As indicated above, the complainant’s initial denials to her brother and mother must be considered in context. Not only did the complainant not want the matter to be reported to the police because she did not want to go through the court process but the denials occurred on the first day of the HSC exams. The complainant was woken up by her brother screaming at her and asking whether what he had been told by JR, was true.

The complainant said “I denied it at first. I didn’t know that [JR] had told my family so they all came at me and I denied it” (T52.46). As to why she initially denied it, the complainant said:

It was on the following Friday (20 October 2017) that the complainant was confronted by her mother, brother and others and told them what she had said in her evidence in court.

The applicant also relied upon the contents of notes made by Detective Gal of conversations he had with her by phone on 24 October 2017 and in person on 27 October 2017. Those notes were not in evidence before the jury. For reasons not explained (but perhaps due to ill health) Detective Gal did not give evidence in the trial.

The complainant gave evidence in cross-examination that she recalled talking to Detective Gal on the phone and later at the police station. It was put to her that a note made by that officer recorded that on 24 October 2017 he had a brief conversation with her about a sexual encounter with the applicant and that she “didn’t appear to have told him that the sexual encounter was non-consensual” (T66.27). The complainant said she did not recall what she said to him in the telephone conversation. The content of the notes were not put to her verbatim.

The complainant agreed that she attended Bowral Police Station on 27 October 2017 but did not recall what she spoke to Officer Gal about. When the honesty of her recall was challenged, the complainant maintained that she was being honest. She said “It was nearly three years ago. I don't recall exactly what I told him. I was very emotional. I was going through a very stressful and hard time. I don’t recall my exact words to him or what I spoke about.” (T67.18) When a portion of the notes was read to her and it was suggested that there was no mention of the fact that the applicant had asked her take him home, the complainant pointed out that the notes may not be a complete record of all that was said.

The complainant was giving evidence as to her memory of the conversations at the time of trial (some three years later). She was not the author of the notes, nor had she been given an opportunity to adopt them as accurate and complete at the time they were made.

There is another problem with the applicant relying upon the notes taken by Detective Gal. As was pointed out in an objection by the Crown, it was quite unfair for the complainant to be cross-examined about a document which did not originate from her, but from Detective Gal. It was also contrary to s 44 of the Evidence Act 1995 (NSW). Moreover, the failure to tender the notes meant that the only evidence before the court on this issue comprised those propositions which were put to the complainant by the cross-examiner and which were adopted by her.

It is trite to observe that in cross-examination the putting of a proposition to which a negative response is given does not constitute evidence. It is only if the proposition is accepted that both the question and answer become evidence. In relation to the matters at T66-67, the complainant said on more than one occasion that she could not remember what was said in the telephone conversation nor what was said at the police station. It follows that none of the questions and answers at T66-67 are evidence in the trial. That is because the “evidence” comprises propositions which were not adopted by the complainant.

The cross-examination, some of which was allowed over objection, produced the very unfairness that s 44 of the Evidence Act is designed to guard against (Antouny v R [2020] NSWCCA 203 at [66]-[67]).

As set out above, the complainant gave evidence that the terms of her initial disclosure to JR and the request she made of her mother not to report the matter were because she did not want to go through the court process. That evidence was supported by the evidence of her mother who, when asked what the complainant had said when she asked her not to report the matter, said:

Having observed the complainant give evidence and be cross-examined in the proceedings, the jury were well placed to make an assessment of what the court process entailed. It was well open to them to accept the complainant’s explanation of the delay in complaint.

The applicant relied on the fact that the complainant’s mother refused to accept as accurate statements attributed to her which were recorded in notes made by others. For the reasons already indicated in relation to the complainant, the cross-examination of LM as to the contents of those notes did not comply with s 44 of the Evidence Act.

The applicant relied on statements said to have been made by LM in two conversations. The first was a conversation between Detective Gal and LM on 23 October 2017. A portion of the notes made by Detective Gal were put to LM in the following exchange:

LM said:

The notes were not tendered in the proceedings and thus their content was only before the jury to the extent that they were adopted by LM.

Similar problems affect the admissibility of the evidence of LM as was relevant to the notes said to have been taken by Detective Gal of his conversations with the complainant. There is also the problem created by s 44 of the Evidence Act. LM was not the author of the notes, nor did it appear that she had been given an opportunity to adopt them as accurate and complete at the time they were made. She refused to adopt parts of the notes which were put to her.

The applicant also contended that a note made by an investigator from the Education Department of a conversation she had with LM on 23 October 2017 included a statement by LM that the victim had told her that the intercourse was “consensual”. The contents of the notes were not in evidence. Portions of them were read to LM (T136-138).

The portion of the notes on which the applicant sought to rely was as follows:

It can be seen immediately that even assuming the accuracy of the note, LM did not tell the investigator that the complainant had told her that the intercourse was consensual, rather she was reporting something that she heard JR say during the course of an argument with the complainant. In any event LM responded:

Further portions of the same note, which were damaging to the applicant, were put to LM. They strongly suggested that she did not tell the investigator that the complainant had told her that the intercourse was consensual. In particular, the note records (as put by the cross-examiner):

There was evidence from the Deputy Principal, Mr Morris, concerning the notes from the Education Department. Although Mr Morris could remember the general effect of the note, in re-examination he said:

Accordingly, there was no evidence properly before the jury that LM made either of the statements in the notes, contended for by the applicant.

There was no challenge by the applicant to the complainant’s evidence as to how she communicated her lack of consent to him by her actions. She sought to distract him when he tried to embrace her, she moved backwards and forwards between two lounges to avoid him and that in the course of the evening, he locked the front door and removed her car keys. The applicant’s answer was that none of this happened. If the jury accepted the evidence of the complainant, there was no difficulty in them being satisfied that the sexual activity occurred without her consent. It is significant that the photographs do reveal the front door and there is located in it a key consistent with the complainant’s evidence. The presence of the key was important in that it provided objective support for the complainant’s evidence. The complainant was able to accurately describe the lock and key when she spoke to police nine months later.

It was the complainant’s evidence that she arrived at about 11:00pm and that she left at about 2:00am and that it was at the very end of that period that the events, the subject of the charges, occurred. The complainant’s answer to the suggestions that she should have left earlier than she did are convincingly set out in her evidence on that issue:

The applicant submitted that the evidence given by the complainant as to the extent of contact she received from him in the period immediately after the incident was shown by Exhibit F (the call log) to be “heavily embellished”. This referred to the complainant’s evidence in chief that she woke up to a “whole bunch of missed calls and messages from the applicant” and referred to “some voicemails” asking her to come back.

In cross-examination, the complainant agreed that she had said in her statement that she had three voicemail messages, five Instagram messages and about five missed calls. When it was put to her that there were not three but one voicemail message, the complainant said that she made her statement nine months after the incident without the benefit of phone records. When it was suggested to her that there were no missed calls, she said that she remembered multiple missed calls from a landline number as well as the applicant’s mobile (T99.48-100.8).

The applicant’s contention is based on the premise that the call log, which was put together based on phone records, would show missed calls including all missed calls for which no voicemail message was left. The difficulty with that proposition is that there was no evidence before the jury that established it. Detective Senior Constable Walsh gave evidence that phone records record “calls made and received, and SMS made and sent”. She agreed that the phone records were based on charges that are associated with the use of a phone.

The relevant evidence was:

As to the Instagram messages, there was no dispute at trial that those messages were transmitted within the app using data, and therefore do not appear in phone records. It follows that the extent of the inconsistency between the complainant’s evidence and the call log is that there was one voicemail message instead of three. It was well open to the jury to accept the complainant’s explanation for that discrepancy.

It was submitted on behalf of the Crown that insofar as the voicemail messages were concerned, she was honestly mistaken. She was mistaken as to whether or not there were three as she had initially said on that particular evening or whether there was one. Given that the events described occurred nine months before at a time when the complainant’s focus might well have been elsewhere (i.e. on the day following the incident) it was well open to the jury to accept that the complainant was genuinely mistaken. An alternative which cannot be ruled out is that messages had been left by way of Instagram rather than by phone.

Another alternative is that the complainant may have been correct in her estimate bearing in mind the evidence that these phone records were generated based on charges. It was open to the jury to conclude that there may have been other missed calls that were not captured by Exhibit F.

The complainant disagreed with the suggestion that she had taken the applicant to a service station the following morning so that he could buy cigarettes. When later pressed she answered “I have no memory of it”. She was then asked “So you’re not saying it could not have happened, you just have no memory of it?” to which she replied “I just have no memory of it, I just forget everything”. In addition, the complainant did not concede that it was possible that she had seen her then boyfriend, CJ, on his way to work as they drove to the service station, answering “Not really. I feel I would remember if that happened”. It is noted that the applicant did not mention having seen CJ in his ERISP.

Both these matters raised credit issues, which the jury were in the best position to resolve.

Contrary to the assertion made by the applicant, the complainant did not agree that she had contacted the applicant by phone unprompted on 31 August 2017. When the call was raised with her in cross-examination, she asked “Was this after any missed calls?” and then said “I don’t – I don’t recall the phone call. I recall a phone call when we spoke about J moving to London and that’s all I can recall. I can’t tell you if that was the phone call, I’m not sure. I recall getting missed calls from him often” (T107.1).

The lengthier call on 14 October 2017 was a call initiated by the applicant. The complainant identified this as the “[J] moving to London” call she had previously referred to. As to whether the complainant told the applicant during the call on 31 August 2017 that she had been offered early acceptance into the University of Wollongong she said “I’d say so. I remember telling everyone. I was very excited. I was very happy”. Inferentially, it was open to the jury to accept that this was the call on 31 August 2017 to which the complainant’s attention was drawn in cross-examination. It fits neatly with the date on which the complainant received notification that she had been accepted into the University of Wollongong.

The significance of these two calls was to be assessed in light of the fact that contact between the applicant and the complainant was to some extent inevitable because they were both still attending the school, as well as the fact that she had resolved not to report the matter.

In any event, it is clear from Exhibit F that the further contact between the complainant and the applicant after 31 March 2017 was very limited. As indicated, it occurred in circumstances where the complainant remained a student of the high school and the applicant remained an employee of that same school and they would continue to see each other at school in that capacity. The further contact has to be understood in that context, as well as in the context of the complainant still being a young woman aged 17.

When one looks at Exhibit F, there was no contact between the complainant and the applicant by telephone between 1 April 2017 and 31 August 2017, i.e. a period of five months. Thereafter, the only telephone contact between them was that on 14 October 2017 being the “[J] going to London” telephone call initiated by the applicant which lasted for approximately 47 minutes. Despite the applicant’s attempts to suggest that the complainant was infatuated with him, except for the call on 31 August 2017, all of the other calls were initiated by the applicant.

In those circumstances, it was well open to the jury to accept the evidence of the complainant on this issue.

The applicant submitted that the complainant’s evidence that he sent a message to her phone before she arrived at the Colo Vale property was shown by Exhibit F to be a deliberate lie. In support of that submission, the applicant relied upon the fact that there was no record in Exhibit F concerning a text by him to her. He also submitted that the purported request by him that she drive him to Berrima was patently false because that would mean that his car would be left behind at Colo Vale.

There is no issue that there is no text message of the kind described by the complainant in Exhibit F. Equally, however, we know that there is no issue that there was communication in written message form between the applicant and the complainant on the evening of 31 March 2017 via Instagram. It was well open to the jury to conclude that the complainant was honestly mistaken in her evidence that the applicant sent that message to her phone as distinct from it being sent to her by Instagram.

The evidence taken as a whole does not compel the conclusion that the complainant’s evidence that the applicant sent a message to her phone before she arrived at the Colo Vale property was a deliberate falsehood. The complainant and the applicant had exchanged messages via Instagram earlier on the same evening. Notably, the applicant made exactly the same mistake in his ERISP. When asked if he recalled giving the complainant instructions about where he was and how to get there, he said “I assume I told her in this text message”. Exhibit F shows that there were no text messages exchanged between them on that evening (ERISP A.305).

The complainant gave evidence in cross-examination (T64.37) where she said “I remember him texting me at one point. That’s how I got his phone number.” It may well be that is how the complainant came to make an honest mistake. It is plain that the complainant did get the applicant’s mobile number that evening because we know from Exhibit F that he used it to call her at 2:44am when he left a voicemail message.

It is also noteworthy that in Exhibit F at para 2 on page 2, there is no record of any telephone communication between the applicant and the complainant before 31 March 2017 or after 17 October 2017. That lends some support to the complainant’s evidence as to how she came to have the applicant’s mobile phone number which plainly she did and he clearly had hers. That is something that the jury had available when considering the evidence that was given by the complainant.

The applicant submitted that the complainant’s evidence that he asked her to drive him home (to Berrima) from Colo Vale was illogical because his car would still be at Colo Vale. That submission should not be accepted. It assumes that the applicant, who was significantly intoxicated, was acting rationally. It also overlooks the possibility that the request was a ruse to get the complainant to attend so that he could have sexual intercourse with her. Further, based on an answer given by the applicant in his interview he had been intending to go home that evening but was too drunk to drive (ERISP A.352).

Another alternative suggested by the applicant was that he would not have made that request of the complainant because the reason he was at Colo Vale was to look after the animals. That submission should not be accepted. In ERISP A.351, the applicant referred to the person who was sleeping over, Grant, whose task was to house sit because he knew about horses. Accordingly, rather than being a nonsense, that evidence is supportive of what the complainant says which is that the applicant asked her for a lift back to his home in Berrima.

Contrary to the applicant’s submissions, it was open to the jury to find that the circumstances in which the complainant came to be at the applicant’s parents’ home were such as to not support his contention that consensual sex took place. This is because he had originally extended to the complainant an invitation to attend his home at the mentoring session they had at school earlier that day. His request for a lift home in the exchange they had via Instagram that evening does not fit the consensual sex scenario.

The complainant accepted that it was possible that she had identified the applicant’s house in Berrima to CJ, although she did not recall having done so. She knew what the applicant’s address was, having overheard him mention it. The complainant and CJ were in a relationship for about five years from 2012 until mid 2017. CJ gave evidence that he had “no idea” when, over that period the incident occurred, i.e. that the complainant pointed out the location of the applicant’s house. The fact that the complainant did not remember an incident which at the time held little significance for her, is unremarkable.

It was well open to the jury to reject CJ's evidence that the complainant told him on two occasions that she had dreamt about sleeping with the applicant. It was not recorded in his statement to police. CJ gave evidence that he “thought” he told the police about it. In re-examination, he said he could not really remember much of his interview with police. Detective Walsh, who took the statement from CJ, gave evidence that he did not tell her about any such dreams.

The complainant accepted that she did not tell police about the applicant having said to her “I didn't even cum so it doesn't count” when she made her statement. The complainant gave this evidence concerning the process of making her statement:

It was well open to the jury, who had the benefit of observing the complainant as she gave evidence, to accept that explanation.

The applicant relied upon the fact that in 2013, when she was 13 years old, in the course of an argument with another student about a hat, she told the student that the teacher was going to rape him. The complainant was shown a bundle of documents about the incident (Exhibit 3) in cross-examination. The complainant did not deny it but said that she could not remember what she had said seven years earlier. Having read the documents, the complainant said that she did not believe that she had intended it as a “serious thing”. That characterisation is entirely consistent with the narrative of the incident which is set out in Exhibit 3. The complainant’s evidence was:

It was well open to the jury to accept that explanation, having regard to the content of the documents themselves and bearing in mind the age of the complainant and the circumstances, i.e. she was aged 13 and the dispute was over a hat.

The complainant gave evidence that she arrived at the Colo Vale house at about 11:00pm. About half an hour after she arrived, the applicant told her that there was another man in the house, although she did not see him. She gave evidence that at a time before the offences, she followed the applicant into the kitchen where he got a drink. The complainant said “[A]t that point I wasn't feeling super threatened, like I had to leave, at that point he was just talking about [J], and I didn't feel like I had to run away” (T87.12). It was suggested to the complainant in cross-examination that all of the sexual activity took place over a very short period to which she answered “Yes. I said in my statement about 15 minutes”. That period was long after she had entered the house “at the very last part of the evening” (T88.49).

The applicant's submission that there was a lengthy period of time unaccounted for is to be assessed in that context. The complainant did not purport to describe everything that happened over the course of the three hours she was at the Colo Vale house. It is apparent from the description of the conversation that the complainant gave, that it was highly repetitive. It is to be expected that her recall of the evening was focused on the offences. It was not suggested to her that the sexual acts took place over a more extended period or that anything significant occurred in the period that preceded her description of the sexual advances and subsequent assaults by the applicant.

As to the significance of the presence of an unknown male in the house, the complainant agreed that she had not yelled out to try to attract his attention. She said “That’s not what came to mind at that moment. You don’t know how you're going to react until you’re in that scenario. And I chose to stay silent, and I think I was in a state of shock, and I didn’t yell anything out, I didn’t speak, I didn’t say anything” (T89.27). It was well open to the jury to accept that the complainant, a 17 year old student being sexually assaulted by a teacher whom she trusted, had reacted in the way she described and did not attempt to summon the assistance of a stranger.

The applicant relied on the complainant’s concession that she may have moved her legs apart (at the time of the cunnilingus and penile/vaginal penetration). This constitutes an erroneous piecemeal approach to the evidence. The complainant gave evidence that she offered sustained verbal and physical resistance to the applicant in response to which he persisted. Counts 2, 3, 5 and 7 took place after the applicant had locked the door and taken her car keys, preventing her from leaving.

The complainant gave evidence that when the applicant digitally penetrated her she was “in shock”; that she stopped speaking and “was just laying there” (T46.3). When asked in cross-examination how the applicant “managed” to have oral and penile-vaginal intercourse with her without her opening her legs, the complainant said that she must have opened her legs and that, as she had previously said “I just let him do what he had to do because I just wanted to get out of there without being hurt” (T89.35). She did not remember if she tried to close her legs.

The complainant accepted that the applicant was not violent towards her. It does not follow that she did not feel threatened by him. The fact that he was intoxicated, to her mind, made him unpredictable. In the course of explaining why she did not try to run out of a back door, the complainant said:

The jury were directed that “a person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse” and that a lack of protest or resistance is not consent. It is plain from a consideration of the whole of the complainant’s evidence that she was not consenting.

The jury were entitled to accept the evidence of the complainant which was described by the Crown Prosecutor in her closing address as “clear ... compelling and detailed”. They had the opportunity of seeing and hearing the complainant give evidence about what she experienced and how she reacted. It is plain from the jury’s verdicts that they accepted the complainant as both a credible and reliable witness.

The evidence does not bear out the applicant’s submission that the complainant was a massive exaggerator. That submission is supported by the circumstances surrounding the offences that the applicant relied upon. Further, and most significantly, that characterisation is not borne out by the complainant’s description of what happened at the time of the offences.

The complainant has described how she repeatedly used references to the applicant’s then girlfriend to deflect his attention away from her and tried to dissuade him from continuing his assaults. The complainant has described how she froze at the time of the penetrative acts and that she was in shock at the time. She described the circumstances in which the applicant came to cease the assaults i.e., when he started crying. Those descriptions were compelling. There is a clear absence of exaggeration. The descriptions have a ring of truth to them. They certainly do not bear the hallmarks of a deliberate fabrication or massive exaggeration. It was inherently a matter for the jury, who had the significant advantage of being able to assess the complainant, both individually and collectively as to what evidence they accepted and what evidence they did not. As the High Court has reaffirmed in Pell v The Queen, it is necessary to have due regard to the constitutional role of the jury and the advantages which they enjoy.

None of the matters relied upon by the applicant were such as to have caused the jury to have a reasonable doubt about his guilt nor are they of such significance as to cause this Court to entertain a doubt that the jury ought to have had.

The applicant has not demonstrated that the verdicts were unreasonable or unsupported by the evidence and accordingly, this ground of appeal should be dismissed.

In relation to the conviction appeal, the orders which I propose are:

I have read the judgment of N Adams J in relation to the Crown appeal against sentence and I agree with her Honour and the orders which she proposes.

For the reasons set out by her Honour, I also agree with her conclusion that it is doubtful that this Court would ever decline to exercise its residual discretion and proceed to increase a sentence in a Crown appeal before first being satisfied that the sentence imposed was manifestly inadequate.

BUTTON J: I agree with Hoeben CJ at CL with regard to the appeal against conviction. On my assessment of the evidence, the verdicts of guilty were well open to the jury.

I also agree with N Adams J with regard to the Crown appeal.

N ADAMS J: I have had the advantage of reading the reasons of Hoeben CJ at CL in draft. I agree with his Honour that the appeal should be dismissed. I too am not persuaded, for the reasons set out by his Honour, that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt. My agreement with his Honour on this ground was reached after an independent examination of the trial evidence.

The Director of Public Prosecutions appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on Mr Manojlovic (hereinafter “the respondent”) in this matter. The proceedings on sentence were conducted on 9 April 2020 and the respondent was sentenced that day: R v Manojlovic [2020] NSWDC 221.

The respondent stood for sentence for the five counts on which the jury found him guilty. The two counts contrary to s 61M(1) of the Crimes Act 1900 (NSW) carry a maximum penalty of 7 years imprisonment with a standard non-parole period (“SNPP”) of 5 years. The three counts contrary to s 61J(1) of the Crimes Act carry a maximum penalty of 20 years imprisonment with a SNPP of 10 years.

His Honour imposed an aggregate sentence of imprisonment of 3 years and 9 months to commence on 10 February 2020 with a non-parole period of 1 year and 10 months expiring on 9 December 2021. The indicative sentences were:

The Crown Notice of Appeal was signed on 12 May 2020 and a copy was served on the respondent on 13 May 2020. An Amended Notice of Appeal was subsequently filed. Three grounds of appeal are relied upon.

The principles in relation to Crown appeals are well established. The primary purpose of a Crown appeal against sentence is to lay down principles of law for the governance and guidance of courts having the duty of sentencing convicted persons. A Crown sentence appeal based on a claim of manifest inadequacy of sentence requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [325]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at 538; [2010] HCA 45 at 538 [58].

As Hoeben CJ at CL recently observed in Decision restricted [2020] NSWCCA 275 at [94]:

At the proceedings on sentence the Crown tendered a sentencing bundle which became Exhibit A. It comprised a summary of the trial evidence and the respondent’s criminal and custodial history. The applicant’s criminal history was confined to traffic offences: a low range PCA in January 2013, another low range PCA and a drive while disqualified in March 2013 and a high range PCA in April 2019.

The respondent did not give evidence at his proceedings on sentence. He relied upon a report of Dr Stephen Allnutt dated 2 April 2020 and letters from his mother and father. These documents were collectively marked as Exhibit 1. Written submissions were provided on behalf of both the DPP and the respondent. As a result of this, the oral submissions were relatively brief and his Honour delivered his reasons ex tempore.

His Honour recounted the facts as set out in the Crown summary. In doing so, he observed that the summary had “not been the subject of any challenge by Mr Lloyd” (senior counsel for the respondent). These facts are already set out in the judgment of Hoeben CJ at CL and I do not repeat them here. It is to be noted that his Honour included the following in those facts:

His Honour then considered the account given by the respondent to Dr Allnutt. That account included that the respondent maintained his innocence and did not believe that his conduct was non-consensual. Although the respondent accepted that what he did was unethical, he maintained his innocence.

Dr Allnutt also noted that the respondent was now taking an antidepressant and propranolol but was not seeing any mental health professionals. He had previously had contact with a counsellor as early as the year 2000 while doing his university degree. At that time, he suffered what he thought was depression and anxiety. He has had many episodes of depression lasting longer than two weeks. He believed he had been chronically depressed since the age of 12.

The respondent also told Dr Allnutt that at the time of the offending he was drinking at least three bottles of wine daily. On weekends he drank spirits as well. He had been doing so since about 2011. In 2009, he was held up at gunpoint while working at a hotel. He used cannabis between the ages of 14 and 31. He had experimented with “acid” and speed in his late teens and was addicted to methamphetamine for some time in his 20s.

In 2018, he was diagnosed with depression, post-traumatic stress disorder, anxiety, and substance use (alcoholism). Dr Allnutt accepted that diagnosis. Although the respondent was abstinent from alcohol for about six months whilst on bail, he relapsed. He was admitted for rehabilitation and detoxification after each relapse, most recently in January 2020. He was not suicidal. Dr Allnutt suggested that he suffered from a recurrent mood disorder, with associated anxiety and substance use disorder in remission. He noted the episodes of significant trauma in his life, including having a gun put to his head when he worked as a bartender, sexual abuse as a child for a fairly lengthy period, and the death of a sister in childbirth.

The respondent is the third eldest of four children. He had worked as an actor, bartender, theatre manager, musician and teacher. His mother is a retired librarian. His father is a retired school principal. His mother states that when he drinks, he is simply not the person she and her husband know him to be. Conversely, when he is sober he is funny, likeable, intelligent and caring. Both parents are very supportive of the respondent.

Dr Allnutt said his prospects of rehabilitation were good as long as he maintained his abstinence from alcohol and remains in treatment for his mood disorder. He prescribed a regime of treatment by a psychologist and psychiatrist, as well as monitoring by a general practitioner. The respondent needs to participate in a further residential drug and alcohol rehabilitation program.

The sentencing judge then referred to the written submissions of the Crown and the respondent. He summarised the Crown submission regarding the assessment of the objective seriousness as follows at [35]-[36]:

His Honour then summarised the respondent’s submission as to objective seriousness at [37]-[41] as follows:

His Honour concluded his summary of the parties’ submissions concerning objective seriousness at [41] of his Reasons by finding:

His Honour then recounted the mitigating factors, being the respondent’s “relatively prior good [sic] character” and good prospects of rehabilitation (if he undertakes the programs suggested by Dr Allnutt) despite his lack of remorse. His Honour also had regard to the strict bail conditions the respondent was on and the “extra curial punishment” of losing his career as a teacher. His physical and mental health means that imprisonment will be more burdensome. His Honour was also satisfied that COVID-19 was a relevant consideration.

His Honour then turned to the application of the totality principle in this matter, given that there were five offences. His Honour cited the observations of Leeming JA in Taitoko v R [2020] NSWCCA 43 at [130] as follows:

His Honour was satisfied that:

His Honour then referred to the statistics and described them as “a blunt tool.” Despite this, he acknowledged that they were of “some assistance”.

His Honour then imposed the sentence I have set out above at [165]. He then stated “I find special circumstances” (without specifying what they were).

Both grounds one and two contended error in his Honour’s assessment of the objective seriousness of the offences. The grounds are related. It was contended that the failure to take into account the respondent’s knowledge of the victim’s lack of consent explains in part why the assessment of objective seriousness was one that was not open in the circumstances of the case.

Reliance was placed on the circumstance that his Honour gave little or no attention to the fact that the offences were committed without the victim’s consent. No finding was in fact made by the sentencing judge as to the basis of the respondent’s knowledge of lack of consent. His Honour did not make any reference to the Crown submission that the respondent knew that the victim was not consenting in his reasons and made no finding on this issue.

It was submitted that the basis of an offender’s knowledge or lack of consent is a critical component in the proper assessment of objective seriousness of the offences.

Although in written submissions it was contended that this issue was not raised by the Crown during the proceedings on sentence, that position was not pressed at the hearing of this appeal. Rather, it was submitted that it was implicit in the jury verdict that the offences were committed without the victim’s consent. In this respect, the Crown submission that the absence of any reference to it is not well-founded. It was submitted that his Honour was well aware of the seriousness of the offending and the fact that it was committed without the victim’s consent. In reliance upon this submission, reference was made to [34] of the Remarks on Sentence where his Honour noted:

It was further submitted that it was implicit in his Honours reasons that he was sentencing the respondent on the basis that he had knowledge of the victim’s lack of consent. At [35] his Honour noted the Crown submission that the victim made her lack of agreement clear to the respondent and that four of the five offences took place after the respondent had taken her keys.

It was submitted that “the fact that his Honour did not enter into a lengthy exegesis in relation to knowledge or recklessness, in an ex-tempore judgment, is not reflective of error; it is reflective of the obvious and clear position.”

In order for the Crown to succeed under this ground, error of the kind referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 must be established. The error contended for under this ground is a failure to have regard to a relevant consideration when assessing the objective seriousness of the offences, namely, the respondent’s state of mind at the time. A finding that the respondent knew that the victim was not consenting is a factor that could lead to the objective seriousness of the offence being assessed as higher than had the mental element been one of recklessness.

There are three states of knowledge sufficient to establish this element of an offence under s 61J. Section 61HE(3) (previously s 61HA(3)) provides that a person “knows” that an alleged victim does not consent to the sexual activity if (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity. Case law establishes a fourth mental state, namely complete inadvertence to the question: R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660.

The Crown case at trial was that the accused knew that the victim was not consenting; no question of recklessness of absence of reasonable grounds for belief were raised for consideration either by the Crown or the respondent. No direction other than as to direct knowledge was provided to the jury in the summing-up. This was confirmed at the hearing of this appeal on 4 September as follows:

And again on 24 September:

Although it is to be accepted that there was no real issue that the respondent stood to be sentenced on the basis that he knew that the victim was not consenting, the question is whether the sentencing judge had regard to this fact when assessing the objective seriousness of the s 61J offences.

I have extracted the relevant paragraphs from the Reasons above at [178]. At [34] his Honour accepted the Crown submission that the s 61J offence is “an extremely serious offence, and non-consensual intercourse is an invasive and degrading act and intrinsically and [sic] extreme form of personal violence”. At [35] his Honour also noted the Crown submission that the victim had made clear to him her lack of agreement to sexual conduct.

Given what his Honour stated at [34] and [35] and also that the trial was run on the basis the respondent had knowledge of the victim’s lack of consent, I am not persuaded that it could be concluded that his Honour failed to have regard to the respondent’s knowledge at the time of the commission of the offences or failed to make any finding in this regard. The real complaint, it seems to me, is that had his Honour sentenced the respondent on the basis that he knew that his young victim was not consenting, he would have arrived at a finding of greater objective seriousness than he did and gone on to impose a higher aggregate sentence than he did. I will consider those arguments further under grounds 2 and 3.

I would not uphold ground 1.

Although accepting that this Court is usually reluctant to interfere with a finding of objective seriousness, it was submitted that it was not open to his Honour to arrive at the finding of objective seriousness that he did.

There were two aspects to the Crown argument under this ground. The first was that a careful reading of the Remarks on Sentence, transcript of the proceedings on sentence and written submissions before his Honour would lead this Court to be satisfied that his Honour’s finding was that the objective seriousness was at the bottom of the range.

The alternative argument was that even if the primary argument was not accepted, it was not open to his Honour to make a finding that the objective seriousness was towards the bottom of the range in any event.

The respondent submitted that it was open for his Honour to find that the offending fell at the bottom of the range of objective seriousness as this submission had been made by the respondent’s counsel below. Further, the Crown in reply made no challenge to this characterisation of objective seriousness and, it was submitted, the Crown later implicitly accepted that such a characterisation was open in supplementary written submissions.

The respondent argued that his Honour had found that the offending was unplanned, spontaneous and opportunistic. There was also "no evidence to support the proposition that [the respondent] had in mind sexual activity prior to her being in the home", he had not engaged in “grooming” behaviour, there had not been threats or persuasion, and there was no violence or hostility. The respondent had not given the victim directions not to report the matter.

His Honour did not find any statutory aggravating factors. In relation to the teacher-student relationship, the respondent emphasised that the relationship had been one of “infrequent” mentorship.

It is well established that the assessment of the objective seriousness of an offence is quintessentially a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46].

The Crown’s position under this ground was put in the alternative. The primary argument required this Court to consider the statement made by his Honour regarding objective seriousness at [41] of his Reasons (extracted above at [180]) in the context of the written submissions of the parties and the transcript of the proceedings on sentence.

In written submissions dated 3 April 2020, senior counsel for the respondent submitted that “the Court would find the offending behaviour to be at a lower level of objective seriousness”. (Emphasis added.)

At the proceedings on sentence, the sentencing judge sought clarification of what was meant by that submission as follows:

The Crown position in relation to all five offences, as expressed in written submissions dated 18 February 2020, was “while these particular offences fall just below the mid-range of offences for this type they remain extremely serious.” In further submissions dated 8 April 2020, the Crown confirmed that its submission was that the s 61J offences “fall just below the mid-range of objective seriousness.” The submissions noted that the respondent’s characterisation of the offending as “at the lower level” did not “fully reflect the seriousness of the sexual assault offences particularly the circumstances where the victim’s keys and phone were taken from her, the degree, albeit small, of planning and the advantage taken of the victim’s vulnerability.”

As extracted above, in his Reasons his Honour summarised Mr Lloyd’s submissions on this issue and noted that his initial position that the offending behaviour was “at a lower level of objective seriousness” was clarified to mean “at the lowest level of the range of objective seriousness for these offences” (at [37]). His Honour’s conclusion as to objective seriousness (at [41]) was that:

The Crown submitted that the transcript of the proceedings on sentence confirms that there was no change in Mr Lloyd’s position as between his written and oral submissions, only a clarification in response to a question from the bench. The respondent’s position was at all times that the objective seriousness was at the “bottom” of the range. In this way, the finding of his Honour at [41] that he accepted the submission put by Mr Lloyd was in fact acceptance that the objective seriousness was at the bottom of the range.

In further support of its position that the sentencing judge accepted Mr Lloyd’s submission that the objective seriousness was at the “bottom of the range,” the Crown noted that senior counsel submitted that an aggregate non-parole period of between 18 months to 2 years was appropriate. This is largely consistent with the aggregate non-parole period actually imposed. This was said to further support the conclusion that his Honour found the objective seriousness of the offences to be at the bottom of the range as submitted.

This Court has stated on a number of occasions that error is to be identified in the reasons for sentence, not the transcript of the proceedings on sentence. In Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131, Gleeson JA and Johnson J observed this at [23]:

This passage was cited with approval in Gibson v Regina [2019] NSWCCA 221 at [80] by Bathurst CJ as follows:

That is not to say that this Court can never have recourse to the transcript of the proceedings on sentence in order to determine a ground of appeal. One example where it is usually appropriate to do so is where a denial of procedural fairness is raised: see Refaieh v R [2018] NSWCCA 72 at [16].

Turning to his Honour’s finding [41], I am satisfied that there is an internal inconsistency giving rise to uncertainty on this issue. First, his Honour clearly stated that he accepted Mr Lloyd’s submissions as to the relevant finding. Secondly, Mr Lloyd’s submission (extracted above at [208]) was that the objective seriousness was at the bottom of the range. Thirdly, what his Honour actually said was that he accepted Mr Lloyd’s submissions that the offences were “towards the low end of the range of objective seriousness for each offence”. This cannot be an acceptance of the finding as set out in writing because his Honour needed clarification of that in order to properly understand it. That clarification was that Mr Lloyd meant “bottom of the range”.

Even having regard to this Court’s repeated statements urging caution when going beyond the terms of the Remarks on Sentence to establish error, I am satisfied what his Honour found at [41] of his ex tempore reasons, when considered in the context of his reasons as a whole, as well as the aggregate sentence ultimately imposed, was that the offences were “at the bottom of the range”.

This finding as to objective seriousness was made having regard to the following factors:

As against these factors, there were no threats of violence or actual violence used and his Honour was not satisfied of any planning or grooming. Nor were any threats made to the victim afterwards not to tell anyone.

Despite this court’s reluctance to interfere with a primary judge’s finding of objective seriousness, I am satisfied that in this case it was not open to his Honour to find that the objective seriousness of the three offences contrary to s 61J of the Crimes Act and the two offences contrary to s 61M(1) of the Crimes Act were at the bottom of the range of seriousness for offences of their type.

His Honour observed during the proceedings on sentence in the passage extracted above at [209] that it was not “critical” to place the seriousness of the offending on any range based on cases such as “McDowell”. It is to be presumed that his Honour was referring to the decision in McDowall v R [2019] NSWCCA 29 where Adamson J (with whom Hoeben CJ at CL and Schmidt J agreed) observed the following at [35]-[36]:

It was necessary for his Honour to make a finding of objective seriousness with respect to each of the offences. It is to be accepted that his Honour identified the facts, matters and circumstances which were relevant to that finding. The difficulty is that in making the finding in terms of “accepting” the respondent’s submission, a degree of uncertainty was introduced as to his Honour’s actual finding. Despite this, for the reasons I have already stated, I am satisfied that his Honour’s assessment was that they were all “at the bottom of the range of objective seriousness” and that finding was not one open to him in this matter.

I would uphold this ground.

The Crown relied upon the decision of Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [33] as authority for the proposition that where specific error has been found on a Crown appeal (as I have found here) the court does not need to go on to consider a ground of manifest inadequacy, although the potential inadequacy of the sentence is “a factor to be addressed both in resentencing and considering whether to resentence”. I do propose to consider the ground of manifest inadequacy and, for reasons I provide below, I am satisfied that the aggregate sentence imposed is manifestly inadequate. Despite this, I feel compelled to state that I do not accept the Crown’s written submission in this matter that, as a general proposition, [33] of the decision in DPP v Burton is authority for the proposition that this Court would interfere to increase a sentence in a Crown appeal even if it was not manifestly inadequate.

In DPP v Burton, this Court (Basten JA, with whom Rothman and Cavanagh JJ agreed) considered a Crown appeal brought by the DPP under s 5D of the Criminal Appeal Act. At [3] his Honour observed that the DPP “challenges the adequacy of the sentence”. The respondent in that matter had been placed on a community correction order for a period of 3 years, pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) for an offence of sexual assault without consent contrary to 61I of the Crimes Act. That offence carries a maximum penalty of 14 years imprisonment and a SNPP of 7 years.

In support of its claim of inadequacy, the DPP relied upon both patent and latent error. Patent error was conceded by the respondent to the appeal and accepted as error by the court; the sentencing judge had held that the moral culpability of the offender was reduced by his self-induced intoxication contrary to s 21A(5AA) of the Sentencing Act. Following acceptance of that concession, Basten JA observed the following at [33]:

The court then went on to dismiss the appeal in the exercise of the residual discretion. In doing so, there was no finding that the sentence was manifestly inadequate, only that it was “exceptionally lenient” and “merciful” (at [37]).

The statement of principle by Basten JA in DPP v Burton at [33] is derived from the decision of French CJ and Gageler J in CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (“CMB”). I shall consider that judgment further below but, before I do, it is helpful to briefly note the guiding principles applicable to the bringing of Crown appeals.

Section 5D was originally enacted in 1924 [1] . It permitted the Attorney-General to appeal to this Court against any sentence imposed by the Supreme Court or the Court of Quarter Sessions. The reference to the latter court was changed in 1975 to the District Court. [2] Subsequently, the names of both courts were removed and “court of trial in any proceedings to which the Crown was a party” was added. [3] Following the creation of the position of Director of Public Prosecutions in NSW in 1986, he or she was permitted to exercise appeal rights under the section as well. [4]

The scope of s 5D was considered by the High Court in Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44. Barwick CJ described s 5D in the following, oft-cited passage at 310:

This passage was cited with approval in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 300. Their Honours then went on to observe:

In Everett v The Queen, McHugh J described the role of Crown appeals against sentence in this way at 306:

The decisions in Griffiths v The Queen and Everett v The Queen established that Crown appeals against sentence should only be brought to establish some matter of principle in the context of avoiding manifest inadequacy or inconsistency in sentences.

In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gleeson CJ and Hayne J observed the following in relation to Crown appeals:

In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 French CJ, Crennan and Kiefel JJ cited the passage from Barwick CJ’s judgment in Everett with approval and then added the following:

In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the High Court considered an appeal from a decision of this Court allowing a Crown appeal and increasing the sentence. Complaint was made that there had been no finding of manifest inadequacy before doing so and nor had the residual discretion been exercised. French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed this at [24] (footnotes omitted):

In CMB, the High Court considered the question of the onus of proof in relation to the exercise of the residual discretion in Crown appeals. It found, unanimously, that the onus is on the Crown to persuade the court that the residual discretion should not be exercised in a Crown appeal once error is shown. French CJ and Gageler J stated the relevant principles in relation to the residual discretion this way at [32]-[33]:

Their Honours went on at [35] to cite with approval Barwick CJ’s statement of principle in Griffiths v The Queen at 310, and then added the following:

In CMB, Kiefel, Bell and Keane JJ acknowledged the role of the prosecutor to avoid “appealable error” at [64] (footnote omitted):

There is nothing in the judgment of French CJ and Gageler J in CMB at [33] to suggest that in an appeal brought under s 5D of the Criminal Appeal Act, this Court can intervene and impose a higher sentence without first being satisfied that manifest inadequacy was established. Such a proposition would be inconsistent with Everett v The Queen which French CJ and Gageler J expressly endorsed in CMB at [35]. Although it is to be accepted that their Honours stated (at [33]) that before the residual discretion comes to be exercised either latent or patent error must be established, their Honours did not go on to say anything to the effect that an appellate court could, after declining to exercise the residual discretion, increase a sentence that was not manifestly inadequate.

I raised this issue with counsel for the Crown on the second day of the hearing of this appeal and the following exchange took place:

For my part, it seems doubtful that this Court would ever decline to exercise its residual discretion and go on to intervene to increase a sentence in a Crown appeal before first being satisfied that the sentence imposed was manifestly inadequate.

For completeness, I note that since the Court reserved its decision in this matter the ACT Court of Appeal has considered the same question in R v Ralston [2020] ACTCA 47 in the context of s 24(1)(b) and s 28(5) of the Federal Court of Australia Act 1976 (Cth) (which is in different terms than s 5D of the Criminal Appeal Act). In R v Ralston, Mossop J and Murrell CJ (Loukas-Karlsson J in dissent on this point) considered the decisions of the High Court in which principles pertaining to Crown appeals have been considered including Griffiths v the Queen, Everett v the Queen, Green and Quinn v The Queen and CMB v The Queen, to which I have already referred. Their Honours also referred to the decision in DPP v Burton at [75] in these terms:

Their Honours went on to state the following proposition at [84]:

Although the relevant statutory provision in the ACT differs from s 5D of the Criminal Appeal Act, to the extent that that decision considers the same High Court decisions as I have herein, I am respectfully unable to agree with their Honours’ general proposition that an intermediate appellate court could increase a sentence the subject of a Crown appeal even if it is not manifestly inadequate.

The Crown submitted that the sentence was manifestly inadequate, in part, because of the trial judge’s failure to properly characterise the objective seriousness of the respondent’s offending. The Crown suggested that his Honour had impermissibly lessened the objective seriousness of the offending by considering extra-curial punishment of the offender as well as his “strict” bail conditions.

Further, the Crown submitted that his Honour had extended unnecessary leniency to the respondent because of the COVID-19 pandemic. The Crown submitted that his Honour was entitled to find that the conditions of the respondent’s incarceration would be more onerous but no more, especially given that there was no evidence before the court about changes to custodial conditions caused by the pandemic.

Finally, the Crown noted that there was no notional accumulation in the non-parole periods and just six months accumulation in the head sentences and little weight was given to general deterrence.

In response, the respondent submitted that matters of weight are quintessentially matters for the sentencing judge at first instance. Further, in relation to accumulation, the respondent submitted that it was open for his Honour to impose the sentence that he did given that the offending was “properly regarded as a single episode of criminality”.

The respondent submitted that it was an “unusual” case given that his Honour’s finding that each offence fell within the low end of the range of objective seriousness and his finding that there were no aggravating factors (including statutory aggravating factors).

The respondent also submitted that the sentence was not manifestly inadequate because of his mental health issues and history of trauma. His prospects of rehabilitation were assessed as good (conditional on abstinence from alcohol) and he was receiving treatment for a mood disorder. He had good character given his limited prior convictions.

The respondent further submitted that his onerous bail conditions, extra-curial punishment (namely losing his position as a teacher) and the hardship caused by COVID-19 were all relevant factors to be taken in account when considering manifest inadequacy.

I am satisfied in the present matter that the aggregate sentence imposed is manifestly inadequate.

I have already enumerated the factors relevant to the objective seriousness of the offences above at [219].

The respondent was entitled to have a number of mitigating factors considered in his favour. His Honour gave all of them significant weight. These factors include:

It was appropriate for his Honour to have regard to all of these factors. Despite this, I accept the Crown submission that his Honour placed disproportionate weight on them such as to impose a manifestly inadequate sentence. On this issue I am unable to accept the respondent’s submission that the Crown was not permitted to rely upon matters of weight to show error. Although it is not permissible to rely upon a ground of appeal asserting that too much or too little weight was placed on a particular factor, the question of weight is a relevant factor when considering fifth limb error under House v King (that the sentence is unreasonable or plainly unjust being either manifestly excessive or manifestly inadequate): see Harkin v R [2020] NSWCCA 242 at [44]-[45].

The respondent could not be afforded any discount for the utilitarian value of any plea. It was clearly his legal right to defend the charges but, in doing so, he was not entitled to any discount on sentence. Nor was there any evidence that he was remorseful. Although it was common ground that he was intoxicated at the time of the offending, that factor cannot be taken into account as a mitigating factor on sentence: s 21A (5AA) of the Sentencing Act, see DPP v Burton at [4].

By imposing an aggregate non-parole period of only 22 months for five offences on a teacher who had non-consensual sexual intercourse with his mentoree (who was 20 years younger than him), after locking the door and preventing her departure, the sentencing judge gave insufficient weight to the need for general deterrence and imposed an aggregate sentence that was manifestly inadequate.

I would uphold this ground as well.

In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act the court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen at [1], [26]; Bugmy v The Queen at [24]. The Crown must negate any reason why the residual discretion of the court not to interfere should be exercised: Green v The Queen; Quinn v The Queen at [36].

The Crown submitted that this matter is one in which this Court should intervene because the sentencing process was marked by clear error and the interests of justice required the imposition of an appropriate sentence, especially when the offending was so serious.

The respondent submitted that this matter was one where the residual discretion should be exercised because the circumstances of offending were so “peculiar” and limited to their facts that the decision would be of limited precedential value. Further, the respondent submitted that the forensic conduct of the Crown contradicted its strategic decisions below and that the residual discretion should not fail to be exercised with regard to matters of weight.

I have had regard to these matters as well as the additional matters raised in the affidavit evidence filed by the respondent on the question of the exercise of the residual discretion and in the event of re-sentence (summarised below).

I am not satisfied that this is a case in which the court should exercise the residual discretion.

A number of affidavits were relied upon in the event of re-sentence.

An affidavit of Pearl Beaumont of 20 August 2020 was filed on behalf of the applicant. This detailed some of the problems that the applicant has had in custody, including being in lockdown for 18-19 hours a day. He is worried about catching Hepatitis C. The calls that he can make to his partner and parents are short and can be distressing. Ms Beaumont deposed that the applicant has asthma and a history of bronchitis and pneumonia. He feels anxious about his own health if there were to be an outbreak of COVID-19.

An affidavit of Lindy Louise Hazel Babb sworn 20 August 2020 was also tendered. Ms Babb is the applicant’s mother. She indicated that she was aware that the applicant is an alcoholic and is committed in assisting with his treatment. She provided evidence about the difficulties in visiting her son that have been caused by COVID-19. She stated that since mid-August 2020 she and her husband have had a total of five phone calls from the applicant. The applicant told his parents that he hears "the sound of a skull being smashed" at least daily and that there have been two suicides at the correctional centre since he has been there.

The applicant tendered a letter from Mr Raymond Hudd, Consultant Psychologist, dated 10 June 2020. In the letter, Mr Hudd indicated that the applicant’s mental health had deteriorated significantly since returning to custody. The applicant was disturbed by cell mates with mental health issues and by fights in the yard. A further source of anxiety for him is the prospect of physical assault by other inmates if they learn of his status as a sex offender. His partner miscarried twins while he was incarcerated.

I have had regard to these matters and the objective and subjective factors I have already recounted. As for the assessment of objective seriousness, I would assess them as being just below the mid-range of objective seriousness for the reasons I have set out above at [219]-[223]. I do not accept, contrary to the approach taken by the sentencing judge, that the sentence should be significantly mitigated because of the impact of COVID-19. There is currently no community transmission in NSW and, contrary to what was anticipated in April 2020, NSW Corrective Services was able to prevent the spread of it in correctional centres. Despite this, it is to be accepted that the respondent will serve his time in custody in more onerous conditions given the limited family contact available to prisoners as part of the response to COVID-19. I would mitigate the aggregate sentence to some extent on that basis.

I would allow for a significant degree of notional concurrence as between the two indecent assaults and the other three offences, but some degree of notional accumulation is required. Count 1 involved fondling on top of the victim’s underwear, Count 2 involved touching of the victim’s breasts and body, Count 3 involved digital penetration, Count 5 involved cunnilingus and Count 7 involved penile/vaginal intercourse.

His Honour made a finding of special circumstances without specifying the basis for doing so. I would make the same finding on the basis of the applicant’s mental health problems and the ongoing needs concerning his alcoholism. He relapsed a number of times whilst on bail and will need assistance in this regard upon his release on parole.

I am required to bear in mind both the maximum penalty and the standard non-parole period as statutory guideposts when considering the appropriate aggregate sentence to be imposed. I have identified the factors relevant to the sentence as set out above. It remains to determine the appropriate aggregate sentence.

The respondent was briefly on appeal bail between 25 May and 16 June 2020. I have had regard to the time already served less that period of time in the aggregate sentence I would impose.

The orders I would make are: